Case Name: Marko Vladislavich v. James L. Dawson, et al.
Case No.: 2016-1-CV-290787

Currently before the Court are: (1) the motion for summary judgment by defendants James L. Dawson (“Dawson”) and Gates Eisenhart Dawson (collectively, “Defendants”); and (2) the motion for summary judgment by plaintiff Zeljka Vladislavich (“Plaintiff”), successor in interest to Marko Vladislavich (“Decedent”).

Factual and Procedural Background

This is an action for legal malpractice. In 2010, Decedent retained Defendants as his counsel in connection with the case of Board of Trustees, et al. v. Advanced Installation, et al. (San Francisco County Superior Court, Case No. CPF-13 513345). (Second Amended Complaint (“SAC”), ¶ 5.) Decedent also retained Defendants to represent him regarding a claim of withdrawal liability issued by the Carpenters Pension Trust Fund for Northern California (the “Fund”). (Ibid.) On January 22 2014, Decedent and Defendants executed an attorney-client fee agreement setting forth the terms of the representation. (Id. at ¶ 5, Ex. A.)

At all times during their representation of Plaintiff, Defendants knew and understood that “[Decedent], individually and dba Advanced Installation, was engaged in business in the construction industry, performing carpentry work from about 1993 to until at least 2011”; “[Decedent] was a signatory to a collective bargaining agreement with the Carpenters 46 Northern California Counties Conference Board …, known as the Carpenters Master Agreement for Northern California, which required him to make contributions to the Fund for every hour worked by his carpenter employees and himself”; and “since sometime between 2010 and 2011, [Decedent], individually and dba Advanced Installation, no longer had any new employees, was no longer bidding for construction contracts and was not entering any new contacts.” (SAC, ¶¶ 6-7, 11-12.) Between 2010 and 2011, Decedent suffered from various medical conditions and could no longer work. (Id., at ¶ 11.) He was also “winding down Advanced Installation and the company was nearly non-operational.” (Ibid.) In early 2011, Advanced Installation submitted a bid for a union project. (Id., at ¶ 12.) Decedent was eventually awarded the contract for the job in 2012. (Ibid.) Decedent completed the project after June 2012. (Ibid.) In light of the foregoing, Defendants allegedly knew, or should have known, that Decedent had not ceased operations in June 2012. (Id., at ¶ 12.)

On October 24, 2013, the Fund’s attorney served Decedent with a notice of withdrawal liability assessment (the “Notice”). (SAC, ¶ 8, Ex. B.) The Notice stated, “[o]ur records indicate that Advanced Installations ceased to have an obligation to contribute to the Plan with respect to work of employees covered by the Plan as of June 30, 2012.” (Id., at ¶ 9.) The Fund’s attorney then sent the Notice to Defendants on December 12, 2013. (Id., at ¶ 19.) Defendants discussed the Notice with the Fund’s attorney, who sent Defendants a Certification of Individual Employer form (“Certification”). (Id., ¶ 20.) Thereafter, Defendants advised Decedent “that he need not worry about the assessment of withdrawal liability and that nothing needed to be done as it relates to the Notice.” (Id., at ¶ 21.)

Decedent had 90 days from receipt of the Notice “to ask the board to review any specific matter relating to the determination of his liability and to furnish any additional information to the … Fund.” (SAC, ¶ 10.) Thus, Decedent had until “at least January 12, 2014.” (Id., at ¶¶ 10, 15.)

However, Defendants negligently failed to request a review of the withdrawal liability assessment, complete the Certification, or initiate arbitration, “thereby effecting a waiver of [Decedent’s] defenses to the … Fund’s claim against [him].” (SAC, ¶¶ 23, 27.) “Had Defendants responded to the Fund with a request for review and completed the [Certification], the Fund’s withdrawal liability assessment would have been set aside pending a determination of whether and/or when [he] had withdrawn from the plan.” (Id., ¶ 24.) Additionally, Decedent allegedly had meritorious defenses, “including that he had not withdrawn from the plan as of June 2012 and that he would not be returning to the construction industry after he finished work on his final project, and thus the Fund’s claim for withdrawal liability would not come due.” (Id., ¶ 32.)

On March 11, 2015, the Fund filed an action against Decedent in federal district court, seeking to collect the withdrawal liability. (SAC, ¶ 25, Ex. E.) Because Defendants’ negligent conduct caused Decedent to waive all of his defenses to the action, Decedent was forced to mitigate his damages and settle the action for $350,000. (Id., at ¶¶ 27, 33, Ex. F.)

Based on the foregoing, Decedent filed the operative SAC against Defendants, alleging a single claim for legal malpractice. Thereafter, Defendants filed an answer to the SAC.

Subsequently, Decedent passed away. On December 5, 2018, a stipulation and order was entered, allowing Plaintiff to continue the case as Decedent’s successor in interest.

On June 28, 2019, Plaintiff and Defendants filed cross-motions for summary judgment. The parties filed papers in opposition to the motions on August 29, 2019. On September 6, 2019, Plaintiff filed a reply in support of her motion.

Discussion

I. Legal Standard

The pleadings limit the issues presented for summary judgment and such a motion may not be granted or denied based on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Super. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73.)

A motion for summary judgment must dispose of the entire action. (Code Civ. Proc., § 437c, subd. (a).) “Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272 (Madden), internal citations omitted.)

Where a plaintiff moves for summary judgment, the plaintiff bears the initial burden of showing that there is no defense to a cause of action by proving each element of the cause of action entitling the plaintiff to judgment. (Code Civ. Proc., § 437, subd. (p)(1); Paramount Petroleum Corporation v. Super. Ct. (2014) 227 Cal.App.4th 226, 241 (Paramount).) If the plaintiff makes such a showing, the burden then shifts to the defendant to show that a triable issue of one or more material facts exists as to a cause of action or a defense thereto. (Code Civ. Proc., § 437, subd. (p)(1); Paramount, supra, 227 Cal.App.4th at p. 241.)

“A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. Once the defendant has met that burden, the burden shifts to the plaintiff ‘to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’ ‘There is a triable issue of material 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 in accordance with the applicable standard of proof.’ ” (Madden, supra, 165 Cal.App.4th at p. 1272, internal citations omitted.)

For purposes of establishing their respective burdens, the parties involved in a motion for summary judgment must present admissible evidence. (Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 468.) Additionally, in ruling on the motion, a court cannot weigh said evidence or deny summary judgment on the ground that any particular evidence lacks credibility. (See Melorich Builders v. Super. Ct. (1984) 160 Cal.App.3d 931, 935; see also Lerner v. Super. Ct. (1977) 70 Cal.App.3d 656, 660.) As summary judgment “is a drastic remedy eliminating trial,” the court must liberally construe evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party. (See Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389; see also Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 717-18.)

II. Plaintiff’s Motion

Pursuant to Code of Civil Procedure section 437c, Plaintiff moves for summary judgment of the SAC on the ground that there is no defense to the claim of legal malpractice.
A. Requests for Judicial Notice

1. Plaintiff’s Request

In connection with her moving papers, Plaintiff asks the Court to take judicial notice of: the Petition to Confirm Arbitration Award filed in the case of Board of Trustees, et al. v. Advanced Installation, et al. (San Francisco County Superior Court, Case No. CPF-13 513345); the Complaint for Withdrawal liability filed in the case of The Board of Trustees of the Carpenters Pension Trust Fund for Northern California v. Marko Vladislavich, et al. (United States District Court, Northern District, Case No. 15-CV-01142); the Stipulation for Entry of Judgment and Order and Judgment filed in the case of The Board of Trustees of the Carpenters Pension Trust Fund for Northern California v. Marko Vladislavich, et al. (United States District Court, Northern District, Case No. 15-CV-01142); and the SAC.

These court records are generally proper subjects of judicial notice under Evidence Code section 452, subdivision (d). Evidence Code section 452, subdivision (d) states that the court may take judicial notice of “[r]ecords of any court of this state.” That provision permits the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (People v. Woodell (1998) 17 Cal.4th 448, 455 (Woodell).) Consequently, Court will only take judicial notice of the existence of the subject court records and the truth of the results reached in the Stipulation for Entry of Judgment and Order and Judgment filed in the case of The Board of Trustees of the Carpenters Pension Trust Fund for Northern California v. Marko Vladislavich, et al. (United States District Court, Northern District, Case No. 15-CV-01142).

Accordingly, Plaintiff’s request is GRANTED as to the existence of the subject court records and the truth of the results reached in the Stipulation for Entry of Judgment and Order and Judgment filed in the case of The Board of Trustees of the Carpenters Pension Trust Fund for Northern California v. Marko Vladislavich, et al. (United States District Court, Northern District, Case No. 15-CV-01142).

2. Defendants’ Request

In connection with their opposition, Defendants ask the Court to take judicial notice of the complaint filed on January 26, 2016, and sections 1383 and 1401 of Title 29 of the United States Code.

As an initial matter, the Court notes that the original complaint no longer performs any function as a pleading because the SAC is the operative pleading. (See State Compensation Ins. Fund v. Super. Ct. (2010) 184 Cal.App.4th 1124, 1130 (State Compensation) [“It is well established that an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading.”]; see also Silverado Modjeska Recreation & Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18 (Silverado) [“ ‘There is … a precondition to the taking of judicial notice in either its mandatory or permissive form—any matter to be judicially noticed must be relevant to a material issue.’ [Citations.]”].)

Moreover, although the Court can generally take judicial notice of the existence of the original complaint, it cannot take judicial notice of the truth of statements therein. (See Woodell, supra, 17 Cal.4th at p. 455 [courts may “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.”].) Consequently, the Court will only take judicial notice of the existence of the original complaint.

Next, sections 1383 and 1401 of Title 29 of the United States Code are proper subjects of judicial notice under Evidence Code section 451, subdivision (a). (See Evid. Code, § 451, subd. (a) [courts must take judicial notice of federal statutory law].)

Accordingly, Defendants’ request for judicial notice is GRANTED as to sections 1383 and 1401 of Title 29 of the United States Code and the existence of the original complaint.

B. Evidentiary Objections

In connection with their opposition, Defendants submit objections to evidence offered by Plaintiff in support of her motion.

The Court declines to rule on the Defendants’ objections because they are not material to the disposition of the motion. (See Code Civ. Proc., § 437c, subd. (q) [“In granting or denying a motion for summary judgment …, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.”].)

C. Merits of the Motion

Plaintiff argues that there is no defense to her cause of action for legal malpractice because she can establish each element of the claim. Specifically, Plaintiff asserts that Dawson owed Decedent a duty of care to use such skill, prudence, and diligence as members of his profession commonly possess and exercise because he entered into an attorney-client relationship with Decedent and agreed to represent him in connection with notice of withdrawal liability issued by the Board of Trustees of the Carpenters Pension Trust Fund for Northern California. Plaintiff contends that Dawson breached this duty of care by failing to request a review and/or initiate arbitration of the withdrawal liability assessment. Plaintiff insists that these breaches proximately caused damage to Decedent because Decedent had a complete defense to the withdrawal liability assessment—he had not withdrawn from the plan under the section 1383, subdivision (b) of title 29 of the United States Code—which was waived by the failure to arbitrate. Finally, Plaintiff asserts that Dawson’s negligence caused Decedent damages because he was forced to settle the action brought against him by the Board of Trustees of the Carpenters Pension Trust Fund for Northern California for $350,000.

In support of her argument, Plaintiff offers 33 material facts that are purportedly undisputed as well as evidence, including her declaration, excerpts from Dawson’s deposition testimony, emails between Dawson and other counsel, Decedent’s responses to requests for admission, the Carpenters Master Agreement for Northern California in effect from May 18, 2011 through June 30, 2015, and documents filed in the cases of Board of Trustees, et al. v. Advanced Installation, et al. (San Francisco County Superior Court, Case No. CPF-13 513345) and The Board of Trustees of the Carpenters Pension Trust Fund for Northern California v. Marko Vladislavich, et al. (United States District Court, Northern District, Case No. 15-CV-01142).

“ ‘In civil malpractice cases, the elements of a cause of action for professional negligence are: “(1) the duty of the attorney to use such skill, prudence and diligence as members of the profession commonly possess; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage. [Citations.]” [Citation.]’ [Citations.]” (Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 356–357 (Blanks).)

As Defendants persuasively argue, Plaintiff fails to meet her initial burden of proof on summary judgment because she does not offer any expert testimony regarding the applicable standard of care and breach of the standard of care.

In most cases, a plaintiff must prove the issues of the applicable standard of care and breach of the standard of care by expert testimony. (Lipscomb v. Krause (1978) 87 Cal.App.3d 970, 975-976 (Lipscomb); Unigard Ins. Group v. O’Flaherty & Belgum (1995) 38 Cal.App.4th 1229, 1239 (Unigard); Wilkinson v. Rives (1981) 116 Cal.App.3d 641, 647 (Wilkinson); Wright v. Williams (1975) 47 Cal.App.3d 802, 810; see Flatt v. Super. Ct. (1994) 9 Cal.4th 275, 297 [whether an attorney breach her duty of care by failing to render certain advice could be resolved on summary judgment only by expert evidence regarding the standard of care].)

Expert testimony is not required only in rare cases where the failure of the attorney is so clear that reasonable minds could not differ, or the nature of the omission is such that a trier of fact would not require the assistance of an expert to understand why it did, or did not, violate the standard of care. (Unigard, supra, 38 Cal.App.4th 1at p. 1239; Allied Properties v. John A. Blume & Associates (1972) 25 Cal.App.3d 848, 858; see Wilkinson v. Rives, supra, at p. 648 [noting existence of exception to requirement of expert testimony, but finding it inapplicable].) Examples of the exceptional circumstances in which no expert testimony is needed to establish a violation of the standard of care include a total failure to conduct any research on a point of law (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1093 (Stanley)) or advising a client to commit an act that is a violation of the Penal Code (Goebel v. Lauderdale (1989) 214 Cal.App.3d 1502, 1509 (Goebel)).

The case before the Court plainly comes within the general rule that expert testimony is necessary to prove the applicable standard of care and breach of the standard of care. The question of whether Defendants’ alleged conduct (i.e., failing to request a review and/or initiate arbitration of the withdrawal liability assessment) fell below the applicable standard of care is not something that can be resolved by the trier of fact based on mere common sense or general knowledge of laypersons. The alleged professional shortcoming is quite technical. Defendants’ decision to not to request a review and/or initiate arbitration of the withdrawal liability assessment would have to be assessed in light of the timing and scope of their retention, their diligence in investigating any defenses Decedent might have had to the withdrawal liability assessment, any statements Decedent made to Defendants, and the merits of any defenses Decedent had to the withdrawal liability assessment. Given the complexity of the issues, these are not matters that a layperson could be expected to evaluate without the aid of expert testimony. On the contrary, an expert witness would have to inform the trier of fact with respect to the applicable standard of care and breach thereof under all the circumstances of this case.

Plaintiff cites Goebel and Stanley as examples of cases where expert testimony was not required. Neither of these cases is persuasive because the instances of alleged malpractice here are readily distinguishable.

In Goebel, the court considered a bankruptcy attorney’s advice to his client, a contractor who was in financial trouble. (Goebel, supra, 214 Cal.App.3d at p. 1505.) The bankruptcy attorney advised the contractor to collect $15,000 the contractor believed he was owed on a construction project and to stop work on the project. (Ibid.) Unbeknownst to the attorney, his advice caused the contractor to violate Penal Code section 484b, which forbade the contractor from collecting the money where it was actually owed to persons who furnished labor and material for the project. (Ibid.) Violation of that section constitutes a felony. (Ibid.) The client was subsequently arrested and convicted. (Id. at p. 1506.) Although the court’s holding is ambiguous, it is reasonable to conclude that the court found that expert testimony was unnecessary under the circumstances of that case. (Id. at p. 1508.) As the court explained, “Quite simply, [the attorney] advised his client to break the law. We see no problem in concluding that, as a matter of law, such conduct markedly departs from the skill and diligence attorneys commonly possess.” (Id. at p. 1509.) Here, there is no allegation that Defendants advised Decedent to commit a criminal act or otherwise engaged in similar conduct.

In Stanley, while the court considered the issue of breach to be within the understanding of a lay jury, expert testimony regarding the standard of care applicable to a specialist attorney (there, family law) was in evidence. (Stanley, supra, 35 Cal.App.4th at pp. 1092-1094.) Given this testimony, whether the attorney breached the standard by her “ ‘total failure to perform even the most perfunctory research’ on the legal issues” requested by her client was a question the jury could answer unaided by expert testimony. (Id. at p. 1093, italics omitted.) The facts of this case bear no relation to the circumstances of Stanley as Plaintiff has not presented any expert testimony regarding the applicable standard of care and there is no allegation that Defendants failed to conduct research in connection with the withdrawal liability assessment.

For these reasons, Plaintiff fails to meet her initial burden of proof on summary judgment.

Accordingly, Plaintiff’s motion for summary judgment is DENIED.

III. Defendants’ Motion

Pursuant to Code of Civil Procedure section 437c, Defendants move for summary judgment of the SAC on the grounds that the elements of causation and damages of the claim for legal malpractice cannot be established.

A. Request for Judicial Notice

In connection with their moving papers, Defendants ask the Court to take judicial notice of Plaintiff’s complaint filed on January 26, 2016, and sections 1383 and 1401 of Title 29 of the United States Code.

As an initial matter, the Court notes that the original complaint no longer performs any function as a pleading because the SAC is the operative pleading. (See State Compensation, supra, 184 Cal.App.4th at p. 1130 [“It is well established that an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading.”]; see also Silverado, supra, 197 Cal.App.4th at p. 307, fn. 18 [“ ‘There is … a precondition to the taking of judicial notice in either its mandatory or permissive form—any matter to be judicially noticed must be relevant to a material issue.’ [Citations.]”].)

Moreover, although the Court can generally take judicial notice of the existence of the original complaint, it cannot take judicial notice of the truth of statements therein. (See Woodell, supra, 17 Cal.4th at p. 455 [courts may “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.”].) Consequently, the Court will only take judicial notice of the existence of the original complaint.

Next, sections 1383 and 1401 of Title 29 of the United States Code are proper subjects of judicial notice under Evidence Code section 451, subdivision (a). (See Evid. Code, § 451, subd. (a) [courts must take judicial notice of federal statutory law].)

Accordingly, Defendants’ request for judicial notice is GRANTED as to sections 1383 and 1401 of Title 29 of the United States Code and the existence of the original complaint.

B. Merits of the Motion

Defendants argues that they are entitled to summary judgment of the SAC because Plaintiff cannot prove the elements of causation and damages.

With respect to the element of causation, Defendants assert Plaintiff cannot prove that their alleged conduct (i.e., failing to request a review and/or initiate arbitration of the withdrawal liability assessment) caused her damages because Decedent was subject to withdrawal liability and he did not qualify for the building and construction industry exception to withdrawal liability. Defendants contend that Decedent was a signatory of the Carpenters Master Agreement for Northern California in effect from May 18, 2011 through June 30, 2015 (“Carpenters Master Agreement”). Under the Carpenters Master Agreement and the Employee Retirement Income Security Act of 1974, Title 29 of the Unites States Code sections 1001, et seq (“ERISA”), Decedent was required to make pension benefit contributions to the Carpenters Pension Trust Fund for Northern California. Defendants state that the Carpenters 46 Northern California Counties Conference Board (the “Union”) sent a letter to Plaintiff on April 25, 2012, terminating the Carpenters Master Agreement pursuant to Section 2 of the contract effective June 30, 2012. Defendants assert that once the Carpenters Master Agreement was terminated on June 30, 2012, Decedent was subject to withdrawal liability under sections 1381 and 1383 of Title 29 of the United States Code. Defendants further contend that Decedent did not qualify for the building and construction industry exception to withdrawal liability because he continued to perform work covered by the Carpenters Master Agreement in the geographic area covered by the Carpenters Master Agreement through May 2013. Defendants urge that Decedent was, consequently, liable for the entire amount set forth in the notice of withdrawal liability, $486,596, and their alleged failure to request a review and/or initiate arbitration of the withdrawal liability assessment did not cause Plaintiff’s damages.

Regarding the element of damages, Defendants assert that Plaintiff cannot prove actual harm because she cannot show that Decedent would have prevailed in arbitration. Specifically, Defendants contend that Decedent would not have prevailed in arbitration because he was subject to withdrawal liability and he did not qualify for the building and construction industry exception to withdrawal liability.

In support of their arguments, Defendants offer the following seven material facts that are purportedly undisputed: (1) “[Decedent] was a signatory to the Collective Bargaining Agreement (‘CBA’) with the Carpenter’s Union that was in effect through June 30, 2012”; (2) “[Decedent] was terminated from the CBA by way of an April 25, 2012 termination letter from William Feyling, with the termination effective June 30, 2012”; (3) “[Decedent] performed work covered by the CBA after June 30, 2012”; (4) “[Decedent] continued to perform work covered by the CBA in the area covered by the CBA up through May 31, 2013”; (5) “[Decedent] was personally served with a Notice of Withdrawal Liability Assessment on October 24, 2013 after unsuccessful attempts at mailing the Notice of Withdrawal Liability Assessment to [Decedent] in June[ ] 2013”; (6) “[Decedent] did not qualify for the Withdrawal Liability construction industry exception because [Decedent] continued to perform work covered by the CBA in the covered area for the CBA after the date that [Decedent] ceased having an obligation to contribute to the pension fund that assessed the Withdrawal Liability”; and (7) “[o]n September 4, 2015, [Decedent] and the Fund signed a Memorandum of Understanding in which they agreed to settle the withdrawal liability action for $350,000.00 by [Decedent] and his wife transferring a security interest in the real property located at 321 Old Chittenden Rd., Watsonville, California 95706.”

Defendants also submit evidence, including the Carpenters Master Agreement, a letter from William Feyling to Decedent dated April 26, 2012, Decedent’s responses to requests for admission and requests for production of documents, and notices of withdrawal liability.

“With regard to causation and damages, the plaintiff is required to prove that but for the defendant’s negligent acts or omissions, ‘the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred.’ [Citations.] As such, a determination of the underlying case is required. This method of presenting a legal malpractice lawsuit is commonly called a trial within a trial. It may be complicated, but it avoids speculative and conjectural claims. [Citations.]” (Blanks, supra, 71 Cal.App.4th at p. 357.) “ ‘The trial-within-a-trial method does not “recreate what a particular judge or fact finder would have done. Rather, the jury’s task is to determine what a reasonable judge or fact finder would have done….” [Citation.] Even though “should” and “would” are used interchangeably by the courts, the standard remains an objective one. The trier of fact determines what should have been, not what the result would have been, or could have been, or might have been, had the matter been before a particular judge or jury.’ [Citations.]” (Ibid., italics omitted) “If the underlying issue originally was a factual question that would have gone to a tribunal rather than a judge, it is the jury who must decide what a reasonable tribunal would have done. … However, if reasonable minds cannot differ as to what would have happened had the attorney acted otherwise, this issue can become a legal issue for the court. [Citations.]” (Id. at pp. 357-358; Lipscomb, supra, 87 Cal.App.3d at pp. 975–976 [“ ‘There are cases where regardless of the attorney’s negligence his advice or action was correct because of a governing legal principle so that the negligence does not proximately cause harm. [Citations.] Except in those situations, the issue is one of fact. . . .’ [Citation.]”].)

Defendants’ arguments regarding causation and damages are predicated on their assertion that Decedent was subject to withdrawal liability and did not qualify for the building and construction industry exception to withdrawal liability. In other words, Defendants contend that Plaintiff cannot prove the elements of causation and damages because Decedent did not have a defense to the withdrawal liability assessment.

However, as Plaintiff persuasively argues, Defendants fail to meet their initial burden of proof on summary judgment because Defendants do not establish that Decedent was subject to withdrawal liability and did not qualify for the building and construction industry exception to withdrawal liability.

“If an employer withdraws from a multiemployer plan in a complete withdrawal or a partial withdrawal, then the employer is liable to the plan in the amount determined under this part to be the withdrawal liability.” (29 U.S.C. § 1381, subd. (a).) “The term ‘complete withdrawal’ means a complete withdrawal described in section 1383 of … [T]title [29].” (29 U.S.C. § 1381, subd. (b)(2).)

Section 1383, subdivision (a) of Title 29 states that a complete withdrawal from a multiemployer plan occurs when an employer “(1) permanently ceases to have an obligation to contribute under the plan” or “(2) permanently ceases all covered operations under the plan.” Subdivision (b) of that statute sets forth the building and construction industry exception to withdrawal liability. It provides that when an employer that has an obligation to contribute under a plan for work performed in the building and construction industry, a complete withdrawal occurs only if (1) “an employer ceases to have an obligation to contribute under the plan” and (2) “the employer … (i) continues to perform work in the jurisdiction of the collective bargaining agreement of the type for which contributions were previously required … or … (ii) resumes such work within 5 years after the date on which the obligation to contribute under the plan ceases, and does not renew the obligation at the time of the resumption.” (29 U.S.C. § 1383, subd. (b)(2).)

Thus, an employer in the building and construction industry, like Decedent, completely withdraws from a plan, and incurs withdrawal liability, when the employer “ceases to have an obligation to contribute under the plan” and “continues to perform work in the jurisdiction of the collective bargaining agreement of the type for which contributions were previously required” or “resumes such work within 5 years after the date on which the obligation to contribute under the plan ceases, and does not renew the obligation at the time of the resumption.” (29 U.S.C. §§ 1381, subd. (b)(2) & 1383, subd. (b)(2); Laborers Health and Welfare Trust Fund For Northern California v. Advanced Lightweight Concrete Co., Inc. (1988) 484 U.S. 539, 545 (Advanced Lightweight) [“In its 1980 amendments to ERISA, Congress responded to two concerns that are relevant to the question presented by this case. It was primarily concerned about the burden placed upon the remaining contributors to a multiemployer fund when one or more of them withdraw. In response to this concern Congress enacted an elaborate provision imposing ‘withdrawal liability’ on such withdrawing employers. That liability arises when an employer ceases to have an ‘obligation to contribute’ to the plan.”]; H.C. Elliott, Inc. v. Carpenters Pension Trust Fund for Northern California (9th Cir. 1988) 859 F.2d 808, 809-811 [under building and construction industry exception, withdrawal liability is imposed only when a contractor’s obligation to the fund ceased, but the contractor continued doing covered work].)

The term “obligation to contribute” is defined as an obligation to contribute arising “(1) under one or more collective bargaining (or related) agreements” or “(2) as a result of a duty under applicable labor-management relations law.” (29 U.S.C. § 1392, subd. (a).)

Thus, the term “obligation to contribute” is “defined for the purposes of the withdrawal liability portion of the statute in language that unambiguously includes both the employer’s contractual obligations and any obligation imposed by the [National Labor Relations Act (‘NLRA’)].” (Advanced Lightweight, supra, 484 U.S. at pp. 545-546 & fns. 10-11, italics added [interpreting an identical provision, section 4212, subdivision (a) of Title 29 of the United States Code].)

Here, Defendants’ arguments only address whether Decedent had an obligation to contribute to the plan under the Carpenters Master Agreement. Specifically, Defendants assert that once the Carpenters Master Agreement was terminated on June 30, 2012, Decedent was subject to withdrawal liability under sections 1381 and 1383 of Title 29 of the United States Code. Defendants do not address whether Decedent, nonetheless, had an obligation to contribute to the plan under applicable labor-management relations law, such as the NLRA.

As Plaintiff points out, even when a collective bargaining agreement has expired, such that there is no longer an obligation to make pension contributions to a plan under the agreement, an employer can still have a postexpiration obligation to contribute to the plan under the NLRA. (See Litton Financial Printing Div., a Div. of Litton Business Systems, Inc. v. N.L.R.B. (1991) 501 U.S. 190, 207; see also Advanced Lightweight, supra, 484 U.S. at p. 552, fns. 4 [it may be necessary to decide whether an impasse occurred in withdrawal liability cases in which there is a dispute over the date of withdrawal] & 6 [“ ‘Freezing the status quo ante after a collective agreement has expired promotes industrial peace by fostering a non-coercive atmosphere that is conducive to serious negotiations on a new contract. Thus, an employer’s failure to honor the terms and conditions of an expired collective-bargaining agreement pending negotiations on a new agreement constitutes bad faith bargaining in breach of sections 8(a)(1), 8(a)(5) and 8(d) of the National Labor Relations Act. … [citation]. Consequently, any unilateral change by the employer in the pension fund arrangements provided by an expired agreement is an unfair labor practice. [Citations.]’ [Citation.]”].)

Because Defendants do not address whether Decedent had an obligation to contribute to the plan under applicable labor-management relations law, they have not established that Decedent ceased to have an obligation to contribute to the plan. Defendants fail to demonstrate that Decedent completely withdrew from the plan and incurred withdrawal liability because they have not shown that Decedent ceased to have an obligation to contribute to the plan. Consequently, Defendants’ arguments regarding causation and damages lack merit.

Accordingly, Defendants’ motion for summary judgment is DENIED.