2012-00117013-CU-PN

Garr Ooley vs. Charles Edward Bauer

Nature of Proceeding: Motion for Judgment on the Pleadings

Filed By: Strong, Alissa J.

Defendant’s Motion for Judgment on the Pleadings on the 3rd amended complaint is
overruled.

Defendant’s Request for Judicial Notice is granted. However, the Court does not
assume the truth of matters stated in court documents other than Orders. In taking
judicial notice of these documents, the Court accepts the fact of their existence, not the
truth of their contents. (See Professional Engineers v. Dep’t of Transp. (1997) 15
th
Cal.4 543, 590; Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th
112, 120-121; Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97,
th
113; 1 Witkin, Cal. Evid. (5 ed.) Judicial Notice, § 21 at p. 128 [“Judicial notice of the
authenticity and contents of an official document does not establish the truth of all
recitals therein”] [collecting authorities

Plaintiff alleges that defendant committed legal malpractice with respect to
representing him in two civil harassment cases. Plaintiff formerly alleged another
claim based on the representation in a criminal trespass matter however, the
defendant successfully eliminated this claim by an earlier demurrer. (See ruling on
February 7, 2014.) On October 8, 2013, the Court dismissed the cause of action for
intentional infliction of emotional distress and the claim for punitive damages. (See
Minute order October 8, 2013.)

Therefore, the only remaining causes of action are for Legal Malpractice concerning
the civil harassment claims and the claim for Negligent Infliction of Emotional Distress
arising out of representation on the civil harassment claims.

Plaintiff alleges that Bauer committed malpractice when he did not appear to defend
Ooley at two civil restraining order hearings. Plaintiff alleges that his domestic partner
had told Bauer that plaintiff suffered from having epileptic seizures brought on by
stress. Plaintiff alleges that he had a seizure during the hearing during questioning by
Judge Longaker [Jan. 2011], and that if his attorney had been there he could have
responded to the judge’s questions and provided evidence in support of Ooley’s
defense, which was that he did not take photographs of the complainants.

Defendant contends the claims fail on the ground plaintiff has not and cannot plead the
elements of causation or damages with regard to the malpractice claim, and cannot
plead the element of duty with regard to the Negligent Infliction of Emotional Distress
claim. Defendant contends that the claims are barred by collateral estoppel that
arises from Judge Candee’s later March 29, 2012 ruling denying Ooley’s request to
terminate the restraining order.

The restraining order cases are alleged to arise from a neighborhood dispute in which
two neighbors, Larish and Kirwan, sought restraining orders against the plaintiff.
Ooley alleges that Bauer failed to file an Answer to the applications after Ooley filled
out the Answer and gave it to Bauer, failed to disqualify Judge Longaker, and failed to
appear at the hearing on January 13, 2011 after asking plaintiff to continue the hearing
to that date. Bauer allegedly told plaintiff that Judge Longaker would recuse himself
from the case because he had represented Ooley in the past. Bauer told plaintiff to
give his Answer and evidence to the clerk for filing but that the Answer and evidence
were not accepted by the court. Ooley alleges that he suffered an epileptic seizure
during Judge Longaker’s questioning about whether he was taking photos of the
neighbors, which the judge allegedly mistook as an emotional reaction or possible
admission of guilt to his question. Judge Longaker issued an 18 month restraining
order against Ooley as to Larish only. Plaintiff alleges that the failure of Bauer to
appear at the hearing caused the epileptic seizure, which resulted in the restraining
order. Ooley seeks $150,000 in general damages for pain and suffering, mental
anguish, emotional distress, ordeal, fear, and turmoil as a result of Bauer’s failure to
appear at the restraining order hearing.

On March 29, 2012, after a hearing in department 129 of this Court before the
Honorable Roland L. Candee (Ret.) at which counsel were present for Ooley and for
Dreama Larish, Ooley’s Motion to Dissolve the 18 Month Restraining Order was
denied. (Ibid.) (See Request for Judicial Notice.)

Defendant contends that the denial of the request to dissolve the restraining order
prevents Ooley from proving that “but for” the alleged negligence, the restraining order
would not have issued. In a legal malpractice action, “. . . the plaintiff must establish
that but for the alleged negligence of the defendant attorney, the plaintiff would have obtained a more favorable judgment or settlement in the action in which the
malpractice allegedly occurred.” (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.) “The
purpose of this requirement, which has been in use for more than 120 years, is to
safeguard against speculative and conjectural claims.” (Ibid., citing Mattco Forge, Inc.
v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 832-834.) This requirement “serves
the essential purpose of ensuring that damages awarded for the attorney’s malpractice
actually have been caused by the malpractice.” Viner v. Sweet, supra, 30 Cal.4th at p.
1241, citing Mattco Forge, Inc. v. Arthur Young & Co., supra, 52 Cal.App.4th at p 834.)

Plaintiff contends that if Bauer had been present during the restraining order hearings,
Bauer could have requested a break in the proceedings to allow Ooley to recover from
his seizure, and that Ooley would then have been able to voice his defense to the
Judge. Ooley asserts that if he had been able to speak in his defense (to tell the Judge
that he took no photos), no restraining order would have been issued. Ooley claims
that Bauer’s failure to be present at the hearings therefore caused the entry of the
Larish Restraining Order. (TAC, p. 7,¶¶ 28-30.)

The Order denying the dissolving of the restraining order makes no findings and it
cannot be determined from that Order that plaintiff is precluded from proving the “but
for” issue. The Court is not persuaded that the issues determined by Judge Candee
were the same issues that were before Judge Longaker. Judge Candee’s order does
not reveal on its face that the issues he determined were the same as those
determined by Judge Longaker, nor does it make any finding that Bauer’s presence at
the restraining order hearing would not have changed the result at the precedent
hearing.

Collateral estoppel, or issue preclusion, “precludes relitigation of issues argued and
decided in prior proceedings.” ’ [Citation.]” (Johnson v. GlaxoSmithKline, Inc. (2008)
166 Cal.App.4th 1497, 1507.) Collateral estoppel, or issue preclusion, has been
described as a species of the doctrine of res judicata. (Id. at p. 1507, fn. 5, citing
Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) Bauer contends that
collateral estoppel bars relitigation of an issue decided at a previous proceeding when
(1) the issue is “identical to that decided in a former proceeding”; (2) the issue was
“actually litigated” and (3) “necessarily decided”; (4) the former decision is “final and
was made on the merits”; and (5) the doctrine is asserted against a party to the former
action or one who was in privity with such
party. (Lucido v. Sup Ct. (1990) 51 Cal.3d 335, 341; Knickerbocker v. City of Stockton
(1988) 199 Cal.App.3d 235, 242.)

The Court cannot determine based on matters judicially noticed that the issue to be
decided in this case is identical to that in the prior hearing, or whether it was actually
litigated or necessarily decided in the prior hearing.

1st cause of action Legal Malpractice: Overruled.

2nd cause of action Negligent Infliction of Emotional Distress (Negligence):
Overruled. This cause of action stands or falls with the 1st cause of action. Since
the Court is overruling the demurrer on collateral estoppel grounds, a cause of action
is stated because plaintiff has alleged “some other tort” upon which to base a duty to
the plaintiff.