Case Number: BC537637 Hearing Date: March 28, 2018 Dept: 32

allen letgolts and gabriella plattner,

Plaintiffs,

v.

scott marks, the marks law firm, Inc., sandra lockman, engstrom, lipscomb & lack, et al.

Defendants.

Case No.: BC537637

Hearing Date: March 28, 2018

[TENTATIVE] order RE:

defendant engstrom, lipscomb & lack’s Motion for summary judgment

BACKGROUND

This action arises out of Defendant Scott Marks’ (“Marks”) alleged representation of Allen Letgolts and Gabriella Plattner (“Plaintiffs”) in a construction lawsuit, Gabriella Plattner, et al. v. Martiza Hartnett, et al., LASC Cas No. BC425940 (“Plaintiffs’ construction case”), from November 2009 through July 2012. As set forth in the third amended complaint (“TAC”), Plaintiffs allege that Marks closed his law firm in March 2012 and moved his practice to Defendants Engstrom, Lipscomb & Lack (“ELL”), and continued to represent Plaintiffs until his withdrawal on July 27, 2012. (TAC ¶19; 23.) Plaintiffs assert causes of action for (1) professional negligence; (2) breach of contract; (3) breach of fiduciary duty; (4) intentional misrepresentation; and (5) unfair competition under Business and Professions Code §17200.

Plaintiffs assert their first and third causes of action against ELL. ELL moves for summary judgment on Plaintiffs’ TAC on the grounds that no valid attorney-client relationship exists between ELL and Plaintiffs.

REQUEST FOR JUDICIAL NOTICE

ELL’s request for judicial notice is GRANTED. (Cal. Evid. Code §452.)

EVIDENTIARY OBJECTIONS

Pursuant to CCP § 437c(q), “the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.”

The Court rules as follows to the objections asserted in Defendant’s Response to Plaintiff’s Additional Undisputed Material Facts:

UMF 29: Overruled.

UMF 31: Overruled.

UMF 35: Overruled.

UMF 36: Overruled.

UMF 39: Overruled.

UMF 42: Overruled.

UMF 43: Overruled.

DISCUSSION

A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (CCP § 437c(c).) There is a triable issue of fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) On its motion for summary judgment, the plaintiff maintains the burden that each of the elements has been proved and that there is no defense available, while on its motion the defendant must persuade the court that one of the elements in question cannot be established or that there is a complete defense. (Id.) Summary judgment motions are defined by the material allegations in the pleadings. (Baptist v. Robinson (2006) 143 Cal. App. 4th 151, 159.)

The elements of a cause of action for legal malpractice are (1) the attorney-client relationship or other basis for duty; (2) a negligent act or omission; (3) causation; and (4) damages. (Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1528.) Summary judgment is appropriate if the defendant negates any of these elements. (Ibid.) The attorney client relationship is created by some form of contract, express or implied, formal or informal. (Fox v. Pollack (1986) 181 Cal.App.3d 954, 959.) California law is settled that a client’s subjective belief that an attorney-client relationship exists, standing alone, cannot create such a relationship, or a duty of care owed by the attorney to that Plaintiff. (Zenith Ins. Co. v. Cozen O’Connor (2007) 148 Cal.App.4th 998, 1010.) Plaintiff cannot unilaterally establish an attorney-client relationship and hindsight “beliefs” that such a relationship existed are thus legally irrelevant. (Ibid.)

The following facts are undisputed by Plaintiff: ELL and Plaintiffs do not have a written attorney-client agreement (UMF 1); Marks sent all email communications to Plaintiffs from his AOL account instead of ELL’s email account (Opp 9:16-17); no file was opened by ELL for the Plaintiffs’ construction case (UMF 2); Marks did not bill any of his time on the Plaintiffs’ construction case on the ELL billing system (UMF 3); no other attorney at ELL worked on the Plaintiffs’ construction case (UMF 17); there are no filings in the Plaintiffs’ construction case which identify ELL as attorneys of record for Plaintiffs (UMF 6); all filings prior to Marks being relieved as Plaintiffs’ counsel list Scott Marks of The Marks Law Firm, Inc. as sole attorneys of record for Plaintiffs (UMF 7); the Court’s Order granting Scott Marks of The Marks Law Firm’s Motion to be Relieved as Counsel lists only Scott Marks of The Marks Law Firm as counsel of Record (UMF 8); and the Marks’ July 1, 2012 Declaration in Support of Attorney’s Motion to be Relieved as Counsel expressly tells the Court that the Plaintiff’s construction case “is the sole remaining case existing…under my former law firm [and] [s]ince joining my new firm my work load has dramatically increased, making it impossible to continue to represent Plaintiffs in this action” (UMF 9). Further it is undisputed by Plaintiff that on March 14, 2012, Marks sent an email to Plaintiffs stating his position as to why he was no longer able to represent them in the Plaintiffs’ construction case and asked Plaintiffs to sign substitutions of attorney otherwise he would filed a Motion to be relieved as Counsel. (UMF 18.) Marks went out on immediate disability in late March 2012. (UMF 19.) I t is also undisputed that in Plaintiff Gabriella Plattner’s Verified Responses to ELL’s Request for Admissions (Set One), she admits that she spoke to Mr. Lack on the telephone on March 26, 2012 and that he told her, “Scott Marks is sick and suggested that Plaintiff could take over the case herself because she is a lawyer.” (UMF 16.) Further, Defendant provides evidence that Marks did not send Plaintiffs any correspondence on the ELL firm letterhead (Kinnan Decl. 2:27-3:2).

Plaintiff’s evidence that Marks sent an email to Plaintiffs using the address and telephone number of ELL does not show an attorney client relationship between ELL and Plaintiffs. (Gabriella Decl. Exh. A.) Further, Gabriella Plattner’s statement that she believed ELL was already handling this case are contradicted by the substance of her own emails (MSJ Exh. I-K and M; UMF 20-22.), and as stated previously, a client’s subjective belief that an attorney-client relationship exists, standing alone, cannot create such a relationship, or a duty of care owed by the attorney to that Plaintiff. (Zenith Ins. Co. v. Cozen O’Connor (2007) 148 Cal.App.4th 998, 1010.)

Plaintiff claims ELL has liability for Marks under a theory of ostensible agency. Ostensible authority of an agent cannot be based on the agent’s conduct alone; there must be evidence of conduct by his principal which causes the third party reasonably to believe the agent has authority. (Lindsay-Field v. Friendly (1995) 36 Cal.App.4th 1728, 1734.)

Plaintiffs claim that Marks gave Gabriella Plattner a copy of his ELL business card at some point in 2012. (Gabriella Decl. ¶9.) However, Plaintiffs have not provided evidence that ELL, the alleged principal, conducted themselves in a way to cause Plaintiffs to reasonably believe Marks was ELL’s agent.

As such, ELL meets their burden on this motion and Plaintiff’s fail to create a triable issue of fact as to their first cause of action for professional negligence.

An attorney’s duty to his or her client depends on the existence of an attorney-client relationship. (Fox at 959.) If that relationship does not exist, the fiduciary duty to a client does not arise. (Ibid.) Since Defendants have persuaded the Court that no attorney-client relationship existed between ELL and Plaintiffs, there is no triable issue of material fact as to the breach of fiduciary duty claim as well.

As such, ELL meets their burden on this motion and Plaintiff’s fail to create a triable issue of fact as to their third cause of action for breach of fiduciary duty.

D. Conclusion

Based on the foregoing reasons, the motion for summary judgment is GRANTED.