2011-00101039-CU-PN

Mark Fields vs. John C Miller

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Miller Jr, John C.

*** If oral argument is requested, the parties are directed to notify the clerk and
opposing counsel at the time of the request which of the 13 Undisputed Material
Facts offered by the moving defendants and/or the 16 Additional Material Facts
offered by plaintiffs will be addressed at the hearing and the parties should be
prepared to point to specific evidence which is claimed to show the existence or
non-existence of a triable issue of material fact. ***

Defendants’ motion for summary judgment or alternatively, for summary adjudication
of each of the three causes of action alleged in the Second Amended Complaint
(“2AC”) is DENIED because defendants have failed to meet their initial burden of
production under Code of Civil Procedure §437c(p)(2) with respect to both the motion
for summary judgment and the alternative motion for summary adjudication. Even if
defendants were deemed to have met their initial burden of production and to have
successfully shifted to plaintiffs the burden of showing a triable issue of material fact,

plaintiffs have met their burden especially in light of the well established rule that the
evidence offered in opposition be construed liberally while the evidence in support is
construed narrowly. (See, e.g., DiLoreto v. Bd. of Education (1999) 74 Cal.App.4th
267; Alvarez v. State of California (1999) 75 Cal.App.4th 903.)

Moving counsel is admonished for failing to comply with CRC Rule 3.1350(b) and (h),
requiring all issues presented for summary adjudication to be stated in the notice of
motion and repeated verbatim in the separate statement.

Both moving and opposing counsel are admonished for failing to comply with CRC
Rule 3.1350(g), requiring evidence (including declarations) in excess of 25 pages be
bound in a single volume of evidence with a table of contents.

This is a legal malpractice action arising out of defendants’ representation of plaintiffs
in the latter’s litigation against various entities relating to defects and mold found in
their home. The 2AC alleges three (3) causes of action (“COA”) for Malpractice,
Breach of Fiduciary Duty/Constructive Fraud, and Negligent Supervision. Defendants
now move for summary judgment/adjudication on the ground that all COA are barred
by the one year statute of limitations found in Code of Civil Procedure §340.6, which
provides in pertinent part:

“An action against an attorney for a wrongful act or omission, other than for
actual fraud, arising in the performance of professional services shall be
commenced within one year after the plaintiff discovers, or through the use of
reasonable diligence should have discovered, the facts constituting the wrongful
act or omission, or four years from the date of the wrongful act or omission,
whichever occurs first.” (Emphasis added.)

The Court notes that plaintiffs’ opposition appears to concede each COA in this case is
governed by §340.6.

Objections to Evidence

Defendants’ objections to evidence (most of which were “irrelevant”) are overruled
except for objection No. 3(2) to the Van Dyke Declaration, which is sustained.

Plaintiffs’ filed no written objections to evidence.

Motion for Summary Judgment

Defendants seek summary judgment on the ground that all three (3) COA are barred
by the one year statute of limitations set forth in Code of Civil Procedure §340.6. As
support for this motion, defendants offer Undisputed Material Fact (“UMF”) Nos. 1-13
but as will now be shown, defendants have failed to cite and include admissible
evidence which supports several of their own UMF. Accordingly, defendants have not
met their initial burden of production under Code of Civil Procedure §437c(p)(2) and
the motion for summary judgment must be denied regardless of any evidence offered
in opposition.

Defendants’ UMF 2 states that plaintiffs filed their First Amended Complaint (“1AC”) on
4/11/2011 but the only evidence cited is Exhibit B to the Miller Declaration, which
shows that the 1AC was actually filed on 12/23/2011 and not on 4/11/2011.

Similarly, while UMF 8 asserts that various facts alleged in both the original complaint
and the 2AC were known to plaintiffs more than one year before the original complaint
was filed on 4/11/2011, the Court finds no “evidence” whatsoever to support this
contention. Instead, the only purported evidence cited in connection with UMF 8 is the
complaint and the 2AC but nowhere in either of these pleadings is there anything
which shows that such facts were actually known to plaintiffs prior to 4/11/2010.
These two pleadings simply cannot be read to “admit” plaintiffs were aware of the
various facts before 4/11/2010 and in fact, both pleadings affirmatively alleges that
several of these had been misrepresented and/or concealed. (See, e.g., 2AC, ¶¶7, 11-
12, 21-22, 24.)

Likewise, UMF 10 is without evidentiary support because the allegations of the original
complaint and the 2AC do not actually demonstrate that “Plaintiffs were aware of their
damages and the cause of their damages” more than one year before the filing of the
original complaint on 4/11/2011.

Because the Court finds that defendants failed to satisfy their initial burden of
production under Code of Civil Procedure §437c(p)(2) with respect to UMF Nos. 2, 8
and 10, defendants’ motion for summary judgment must be denied regardless of any
evidence which may be offered in opposition.

But even if defendants had met their initial burden of production and had successfully
shifted the burden to plaintiffs, the latter produced evidence showing triable issues of
material fact which preclude summary judgment. This conclusion is reinforced by the
fact that the evidence in support of the opposition must be construed liberally while the
evidence in support is construed narrowly.

As noted above, defendants’ UMF 2 contends that plaintiffs’ 1AC was filed on
4/11/2011 but plaintiffs have produced evidence which shows the 1AC was actually
filed on 12/23/2011. Although defendants’ reply insists this was a mere typographical
error and this UMF is not truly “material” to this motion, defendants’ decision to include
this UMF in its separate statement effectively concedes its “materiality.” (See, Nazir v.
United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 (citing Weil & Brown, Civil
Procedure Before Trial, Ch.10:95.1) [moving party’s inclusion of facts in its separate
statement effectively concedes each fact’s “materiality,” whether intended or not, and if
there is a triable dispute relating to any one, the motion must be denied].) Since
plaintiffs have demonstrated that UMF 2 is not undisputed, summary judgment must
be denied.

UMF 3 asserts that in opposition to defendants’ demurrer to the 1AC, “Plaintiffs relied
exclusively on the theory of continuing representation rule to arguing [sic] tolling of the
one year statute of limitations…” However, a brief review of plaintiffs’ opposition
shows that they also argued that defendants concealed their misconduct from plaintiffs
and that they did not discover defendants’ misconduct more than a year before
initiating this lawsuit. (Def. Ex. C, p.9:11-p.10:3.) Thus, UMF 3 cannot be considered
“undisputed” either and while it does not appear that UMF 3 is truly “material,”
defendants have conceded its “materiality” by including it in their separate statement
and since it is disputed, summary judgment must be denied. (Nazir, at 252.)

Defendants claim in UMF 8 that various facts alleged in both the original complaint and
the 2AC were known to plaintiffs more than one year before the original complaint was

filed on 4/11/2011. Plaintiffs have provided evidence (including their own declarations
along with one from the attorney who replaced defendants) which tends to show that
plaintiffs neither knew nor could have discovered facts indicative of defendants’
malpractice until plaintiffs’ new counsel received the litigation file in May 2010. This
evidence, especially when liberally construed, is sufficient to demonstrate a triable
issue of material fact with respect to UMF 8 and for this reason as well, defendants’
summary judgment motion must be denied.

For essentially the same reasons, the Court holds that plaintiffs have also presented
evidence which establishes the existence of a triable issue of material fact relative to
UMF 10 as well. Like UMF 8, UMF 10 asserts that “Plaintiffs were aware of their
damages and the cause of their damages” more than one year before they filed their
original complaint on 4/11/2011. Because the evidence cited in opposition tends to
show plaintiffs neither knew nor could have known of such damages until they
received the litigation file from defendants and because this evidence must be
construed liberally, plaintiffs have shown a triable issue of material fact in connection
with UMF 10, which also mandates denial of summary judgment.

The opposition has also carried its burden of creating a triable issue of material fact
with respect to UMF 11 and 12, both of which assert essentially that defendants
stopped representing plaintiffs in the underlying action more than a year before the
present malpractice action was commenced. While it is true that plaintiffs penned a
letter dated 3/29/2010 which stated they had obtained new counsel, the evidence
offered in opposition establishes that the substitution of attorneys was not ultimately
filed with the Court until 4/13/2010. Accordingly, the Court finds there is also a triable
issue of material fact regarding exactly when defendants’ representation of plaintiffs in
the underlying case was finally terminated, effectively precluding summary judgment
based on the statute of limitations.

Since plaintiffs have shown triable issues of material fact in connection with UMF 2-3,
8 and 10-12, defendants’ motion for summary judgment must be and hereby is denied.

Motion for Summary Adjudication

The alternative motion for summary adjudication of each COA is based on the same
13 UMF which defendants offered in support of summary judgment. Accordingly,
summary adjudication must be denied for the same reasons. First, defendants failed
to satisfy their initial burden of production under Code of Civil Procedure §437c(p)(2)
with respect to UMF Nos. 2, 8 and 10, thereby mandating denial of summary
adjudication of each COA regardless of the evidence offered in opposition. Second,
even if the Court found defendants had met their initial burden of production relative to
UMF Nos. 2, 8 and 10, plaintiffs have produce evidence sufficient to establish triable
issues of material fact relative to UMF Nos. 2-3, 8 and 10-12, particularly when their
evidence in opposition is construed liberally and consequently, summary adjudication
must be denied as to each COA.

This minute order is effective immediately. Pursuant to CRC Rule 3.1312, plaintiffs to
prepare a formal order which conforms to Code of Civil Procedure §437c(g).