Filed 5/27/20 Seiffert v. O’Neil CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

KATHARINE SEIFFERT,

Plaintiff and Appellant,

v.

JANNE ELAINE O’NEIL,

Defendant and Respondent.

A156894

(Sonoma County

Super. Ct. No. SCV261133)

Plaintiff Katharine Seiffert appeals from the judgment entered after the trial court granted summary judgment in her legal malpractice and breach of fiduciary duty action against her former attorney, defendant Janne O’Neil. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The following is a summary of the undisputed facts derived from the evidence submitted on defendant’s motion for summary judgment.

Plaintiff retained defendant for estate planning purposes in 2008. Years later, in early 2013, defendant assisted plaintiff in transferring plaintiff’s condominium to plaintiff’s trust. In August 2013, plaintiff asked defendant to help her transfer that condominium to her son, John. The same month, plaintiff, defendant, John, and John’s fiancé met at defendant’s office and discussed the proposed property transfer. By the end of the same month, defendant prepared the transfer deed and recorded it. John paid no money for the property. From 2013 to 2015, John provided some care to plaintiff.

In September 2014, John retained defendant to help him with his estate planning, including transferring the condominium into his own trust. Defendant also continued to perform legal work for plaintiff until 2017.

In March 2017, defendant wrote John a letter in which she asserted that she recalled an agreement between plaintiff and John whereby plaintiff gave him the condominium in exchange for his assistance as a caregiver. Defendant’s letter further stated that William, plaintiff’s other son, had begun providing care for plaintiff, and that plaintiff wanted John to sell the condominium and distribute half of the proceeds to William, as payment for his caregiving. In June 2017, plaintiff sued John on a single cause of action for financial elder abuse.

In August 2017, plaintiff filed the instant action against defendant for legal malpractice and breach of fiduciary duty. In sum, the allegations in the complaint underlying both causes of action were that plaintiff—a 91-year-old widow—transferred her condominium to John pursuant to an oral agreement that he would care for her for the rest of her life. Defendant negligently and carelessly failed to advise plaintiff to reduce this oral agreement to writing, and failed to advise plaintiff about the effect of the statute of frauds (Civ. Code, § 1624). Consequently, the agreement remained an oral one that was unenforceable due to the statute of frauds, resulting in damages equal to the value of the property and rents therefrom, approximately $500,000. Plaintiff alleged that, had she been properly advised, she and John would have reduced their oral agreement to writing and she would have succeeded in a breach of contract action to enforce it.

In May 2018, defendant filed a motion for summary judgment or, alternatively, summary adjudication, which plaintiff opposed. In considering the motion, the court interpreted plaintiff’s complaint as raising a single theory, i.e., that defendant was professionally negligent and breached her fiduciary duty to plaintiff by not advising plaintiff about the statute of frauds and that, but for this negligence and breach, the oral agreement would have been reduced to writing and would have resulted in a successful breach of contract action against John. The court then found there was no triable issue as to the element of causation, i.e., there was no evidence tending to show that, but for defendant’s alleged malpractice and breach of fiduciary duty, it is more likely than not that plaintiff would have obtained a more favorable result. Plaintiff appealed from the judgment subsequently entered in favor of defendant.

DISCUSSION

A. Standard of Review

We review an order granting summary judgment de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) 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 a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A triable issue of material fact exists “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 in accordance with the applicable standard of proof.” (Aguilar, supra, 25 Cal.4th at p. 845.) On appeal, “[w]e apply the same three-step analysis required of the trial court. ‘ “ ‘First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond . . . . [¶] Secondly, we determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. . . . [¶] When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.’ ” ’ ” (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 503.)

B. Summary Judgment was Properly Granted

A cause of action for legal malpractice requires evidence of the following four elements: “(1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney’s negligence.” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.) “ ‘The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach.’ ” (Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 932.)

The applicable test for determining causation in this legal malpractice action is the “but for” test which requires plaintiff to show that but for defendant’s alleged malpractice, it is more likely than not that plaintiff would have obtained a more favorable result. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1240, 1244 (Viner).) Where it is alleged that an attorney’s malpractice resulted in the loss of a claim, the plaintiff must show the lost claim was meritorious. (See Gutierrez v. Mofid (1985) 39 Cal.3d 892, 900 [“It is well settled that an attorney is liable for malpractice when his negligent investigation, advice, or conduct of the client’s affairs results in loss of the client’s meritorious claim,” italics added]; Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 865–866 (Kurinij).) “[T]he method for proving the element of causation for this cause of action has been likened to a ‘trial within a trial’ or a ‘case within a case.’ ” (Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1531.) This is “an objective approach to decide what should have been the result in the underlying proceeding or matter.’ ” (Ibid.) “ ‘If the allegedly negligent conduct does not cause damage, it generates no cause of action in tort.’ ” (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 165.) On this score, it bears emphasizing that “ ‘the mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm—not yet realized—does not suffice to create a cause of action for negligence.’ ” (Ibid.) The same test for causation applies to the breach of a fiduciary duty cause of action, since the alleged legal malpractice in this case was from negligence. (Knutson v. Foster (2018) 25 Cal.App.5th 1075, 1094.)

As indicated, the theory underlying the causes of action in the complaint was that defendant was professionally negligent and breached her fiduciary duty to plaintiff by failing to advise plaintiff about the statute of frauds and failing to advise her to reduce her oral agreement with John to writing in order to avoid the statute’s application. According to the complaint, the foregoing negligence and breach deprived her of a breach of contract action against John because the statute of frauds rendered the oral agreement unenforceable, and had defendant used the proper skill and care, the oral agreement would have been reduced to writing and plaintiff would have prevailed in a breach of contract action against John.

Here, neither party disputes that defendant, as an attorney, owed plaintiff the applicable duties of care for purposes of malpractice and breach of fiduciary duty liability. Furthermore, defendant conceded below, solely for purposes of the summary judgment motion, that there was a triable issue as to whether she breached those duties. Defendant likewise assumed, again solely for purposes of the motion, that plaintiff and John entered an oral agreement as alleged. Thus, we turn to the element of causation and examine whether a triable issue of fact exists as to that element. For the reasons below, we conclude the answer is no.

As indicated, to prevail on her legal malpractice claim, plaintiff had to demonstrate that defendant’s negligence caused the loss of a meritorious claim. (E.g., John B. Gunn Law Corp. v. Maynard (1987) 189 Cal.App.3d 1565, 1569 [where attorney allowed limitations period to run before filing a complaint, plaintiff had to show the lost claim was meritorious].) A successful breach of contract action requires evidence of a contract, performance or excuse for nonperformance by the plaintiff, breach by the defendant, and resulting damages. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) Because this case was decided in the context of a summary judgment, we review whether defendant made a prima facie showing that plaintiff would likely not have secured a written contract memorializing the alleged oral agreement and its terms had plaintiff been advised to do so. (See Kurinij, supra, 55 Cal.App.4th at pp. 865–866 [attorney defendants met burden on summary judgment regarding failure to appeal certain issues by presenting a “prima facie showing that appeal on these issues would not have been successful”].)

On this point, defendant submitted a copy of the trust transfer deed that expressly stated the property transfer to John was a “GIFT” that involved “NO CONSIDERATION.” Defendant also presented her own declaration in which she repeatedly stated that plaintiff gave the property to John as a gift, albeit one she described in her March 2017 letter to John as a gift given in exchange for John’s assistance to plaintiff as a caregiver. From this evidence indicating the property transfer was a gift, one could reasonably infer that John would not have signed an actual written agreement binding him to provide his mother care for the rest of her life.

In response to this showing, plaintiff offered no evidence from any source from which one might reasonably infer that, but for defendant’s failure to advise plaintiff of the statute of frauds and failure to advise her to reduce the oral agreement to writing, plaintiff would have made transfer of the property contingent on her and John executing a written contract. Likewise, plaintiff offered no evidence that both she and John would have signed such a written contract. These omissions alone sufficed to support the grant of summary judgment.

Defendant also presented evidence showing that, even assuming the existence of an agreement, plaintiff would not have been successful in prosecuting a breach of contract action because plaintiff frustrated John’s performance of any such agreement by refraining from contacting him to help with her care. This evidence included William’s deposition testimony where he was asked who stopped calling whom, and William said, “yeah, [plaintiff] might have stopped calling [John], but [John] was fine with that.” It also included John’s deposition testimony that he never turned down his mother’s requests for help in late 2014 or 2015, supporting the inference that when John’s care for plaintiff ceased in 2015, it was at plaintiff’s discretion and not due to John’s refusal. (See Unruh v. Smith (1954) 123 Cal.App.2d 431, 437 [“Prevention of performance by the promisee is equivalent to performance by the promisor”].)

Plaintiff presented nothing negating defendant’s evidence and argument that plaintiff ceased calling John for care in 2015, thereby frustrating John’s performance of any alleged agreement. Although plaintiff points to evidence that John did not provide her consistent care in 2014 and 2015, and eventually stopped providing her care in 2015, such evidence does not speak to the cause of John’s cessation of care, or to the evidence of plaintiff’s role in the matter. In other words, such evidence did not counter defendant’s showing that John never turned down his mother’s requests for help in late 2014 or 2015 and that it was his mother who stopped calling for help.

Relying on portions of deposition testimony of defendant, plaintiff also claims John’s breach of the agreement may be shown by evidence that she was afraid of John. Such testimony, however, lacked any details as to the circumstances surrounding plaintiff’s purported fear of John, such as when the fear arose, and who and what caused it. Without further details about the alleged fear, we are left only with speculation that it actually and reasonably caused plaintiff to prevent John’s performance under the alleged agreement. In any case, even if we generously construe plaintiff’s evidence as creating a triable issue of fact regarding John’s alleged breach, summary judgment was nonetheless proper because there was no evidence that plaintiff would have made transfer of the property contingent on her and John executing a written contract, and no evidence that she and John would have signed such a contract.

Finally, plaintiff suggests that no evidence is necessary to counter defendant’s showings on the absence of causation because the consequences of defendant’s failure to reduce the oral agreement to writing are apparent. But this presupposes that the parties would have agreed to reduce the alleged oral agreement and its terms to writing. Ultimately, there is only speculation about what might have happened had defendant advised plaintiff to reduce the oral agreement to writing because of the statute of frauds. A summary judgment motion, however, must be decided on evidence. (Code Civ. Proc., § 437c, subd. (c); Advent, Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA (2016) 6 Cal.App.5th 443, 459 [“ ‘ “[s]peculation . . . is not evidence” that can be utilized in opposing a motion for summary judgment’ ”].)

Plaintiff’s remaining arguments are ultimately unavailing for the reasons already set forth, or have no apparent relevance as to whether summary judgment was properly granted.

DISPOSITION

The judgment is affirmed. Defendant shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

 

_________________________

Fujisaki, J.

WE CONCUR:

_________________________

Siggins, P. J.

_________________________

Jackson, J.

A156894