Case Name: Marsha Armstrong, M.D. v. Anthony Trepel, et al.
Case No.: 2012-1-CV-233916

These two consolidated actions arise from alleged professional negligence, breach of contract and promissory fraud. Currently before the Court are three motions by Defendant Anthony Trepel (“Trepel”) for summary judgment only or for summary judgment and summary adjudication in the alternative directed at the operative pleadings in each action. These three motions were previously set for hearing on July 26, 2018 at which time they were taken under submission after oral argument following the Court’s tentative ruling that: 1) Defendant Trepel’s motion for summary judgment directed at the sole remaining claim (for fraud/false promise) in Plaintiff Armstrong’s Second Amended Complaint (“SAC”) was DENIED as barred by CCP § 437c(f)(2); 2) Defendant Trepel’s motion for summary judgment directed at the sole remaining claims alleged by Plaintiff Solutions (for professional negligence) in the Feldman/Solutions Third Amended Complaint (“TAC”) was GRANTED, and; 3) Defendant Trepel’s motion for summary judgment of the claims in the Feldman/Solutions TAC alleged by Plaintiff Feldman was DENIED, but the alternative motion for summary adjudication was GRANTED as to the first (professional negligence), second (breach of contract) and fourth (breach of fiduciary duty) causes of action and DENIED as to the third causes of action (fraud/false promise).

At oral argument on July 26, 2018 Plaintiffs’ Counsel contended that declarations cited in opposing papers but not filed had in fact been filed timely (meaning filed by no later than July 12 based on the July 26 hearing date) or had been delivered to an e-filing service such that they should have been timely filed. Plaintiffs’ Counsel also contended that he had filed a supplemental declaration explaining this prior to the hearing date. Defendant had filed objections to Plaintiffs’ Counsel’s supplemental declaration and to the exhibits submitted by Plaintiffs in opposition to the motions as lacking foundation and authentication among other grounds. On the day of the hearing Plaintiffs’ Counsel’s supplemental declaration did not appear in the Court’s file, nor did either opposing declaration (by Armstrong and Feldman respectively). After taking the motions under submission the Court issued an order on July 27, 2018 continuing the hearing on the motions to August 21, 2018 and directing Plaintiffs “to file and serve the disputed declarations in opposition, and to confirm their actual filing and service, no later than the time mandated in Code of Civil Procedure §437c before the new hearing date.” With the new hearing date of August 16, this meant the two disputed declarations had to be filed and served by no later than August 2, 2018. This did not occur. The Court’s July 27 order also stated: “Plaintiffs are further ordered to file and serve, and to confirm the actual filing and service, of the Supplement Declaration of Plaintiffs’ counsel. Defendant acknowledges this declaration was served on July 23, and promptly filed an objection on July 24 — but the court’s file does not reflect the filing of the supplemental declaration.”

The Court’s file now shows the supplemental declaration of Plaintiffs’ Counsel as having been filed on July 23, 2018 at 3:09 PM, but this does not explain or cure the continuing failure to file the two opposing declarations; the failure to file them (timely or at all) before the July 26 hearing date and the failure to timely file them (i.e., on or before August 2, 2018) based on the new hearing date of August 16, 2018 as directed in the Court’s July 27, 2018 Order. As the state of the submitted evidence remains unchanged from July 26, 2018 the outcome of the three motions is also unchanged.

The pleadings limit the issues presented for summary judgment/adjudication and such motions cannot be granted or denied based on issues outside the pleadings. (See Government Employees Ins. Co. v. Sup. 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 [“the pleadings determine the scope of relevant issues on a summary judgment motion.”].) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.” (McClasky v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947, 975.)

The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, parentheses added.) While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must be liberally construed in support of the opposing party, resolving any doubts in favor of that party. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) Neither party can rely on its own pleadings (even if verified) as evidence to support or oppose a motion for summary judgment or summary adjudication. (College Hospital, Inc. v. Sup Ct. (1994) 8 Cal.4th 704, 720.)

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable finder 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, at p. 850.)

1. MSJ re: third cause of action in Armstrong SAC

Request for Judicial Notice
A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 fn. 2.)

In support of his MSJ on Armstrong’s SAC, Trepel has submitted a request for the Court to take judicial notice of four documents, submitted as exhibits 1-4 to Trepel’s “Index” of supporting evidence. Notice of all four documents is GRANTED pursuant to Evidence Code § 452(d). Only exhibits 2 (a copy of the Court’s June 20, 2016 Order on the prior MSJ/MSA) and 4 (a copy of the Judgment in case no. 1-05-CV-035531) are noticed as to their contents. Exhibits 1 and 3 are noticed only as to their existence and filing dates.

Motion for Summary Judgment
Trepel’s MSJ directed at the third cause of action in the Armstrong SAC is DENIED as follows.

This Court’s Order of June 20, 2016 denied summary adjudication of the SAC’s third cause of action, stating that triable issues remained “as to whether Mr. Trepel falsely represented the actions he would take while representing Plaintiffs and falsely represented what services he would provide in exchange for their separate $100,000 retainers.” (June 20, 2016 Order at 8:11-14.)

CCP §437c(f)(2) states in pertinent part that “[a] party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the Court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” (Court’s emphasis. See Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1093 [second summary judgment motion barred by Section 437c(f)(2) where defendant relied upon the same facts and law as that asserted its first motion for summary judgment or, in the alternative, summary adjudication]; Schachter v. Citigroup, Inc. (2005) 126 Cal.App.4th 726, 734 [“The Bagley court held a second summary judgment motion is barred where it offers ‘no ‘newly discovered facts or circumstances,’ ‘ does not suggest that ‘ ‘a change of law’ ‘ had occurred, and does not request the judge to ‘make a finding’ concerning these statutory requirements.”])

Trepel’s current MSJ is based one of the same arguments made in support of the prior motion for summary adjudication in the alternative of the fraud/false promise claims in both Armstrong’s SAC and the Feldman/Solutions’ TAC which was denied by the Court on June 20, 2016. Trepel previously argued that because both Plaintiffs claimed “that through and including October 22, 2012, Mr. Trepel continued to provide direction and counsel to Plaintiff in regard to the TAT action, the Putney action and the Cross-Complaint against TAT. These facts demonstrate that Mr. Trepel provided legal services pursuant to the 2010 Agreement and thus it cannot also be true that Mr. Trepel executed the 2010 Agreement without any intention to honor or otherwise perform the obligations listed in the agreement.” (Trepel’s memo of P&As in support of the April 2016 MSJ/MSA, filed October 30, 2015, at 10:27-11:4.) In denying the alternative motion for summary adjudication the Court found that even if it were assumed for purposes of argument that the initial burden had been met, “when the burden shifts the declarations of Plaintiff Armstrong and Plaintiff Feldman and exhibit A to the declaration of Plaintiff Counsel Jeffrey Berger (an excerpt from Mr. Trepel’s deposition testimony) raise triable issues as to whether Mr. Trepel falsely represented the actions he would take while representing Plaintiffs and falsely represented what services he would provide in exchange for their separate $100,000 retainers.” (June 20, 2016 Order at 8:9-14.) The Court has examined the evidence submitted in support of the current motion for summary judgment. None of it dates from after the filing of the prior motion and none of it qualifies as “newly discovered facts or circumstances,” nor has Trepel made any effort to make the showing required by CCP § 437c(f)(2). The Court is not inclined to exercise its inherent power to revisit the prior ruling as to the fraud claim and “a party may not file a written motion to reconsider that has procedural significance if it does not satisfy the requirements of section 437c, subdivision (f)(2) or 1008.” (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108.)

Even if the present motion were not barred by CCP § 437c(f)(2) it would still be denied for failure to meet the initial burden as the central argument, that any evidence of any partial performance provides a complete defense to a promissory fraud claim, is not supported by California law. The very California decisions cited by Trepel to support the argument, Ferreira v. Quick Stop Markets, Inc. (1983) 141 Cal.App.3d 1023, 1032, and Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 481, do not hold what Trepel claims; that as a matter of law, any evidence of partial performance defeats a promissory fraud claim. While something more than a mere failure to perform as promised is required to establish promissory fraud, California law is clear that fraudulent intent can be established through circumstantial evidence (See Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assoc. (2013) 55 Cal.4th 1169, 1183), and “fraudulent intent is an issue for the trier of fact to decide.” (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1061.)

2. MSJ re: first cause of action in Feldman/Solutions TAC as alleged by Solutions

Request for Judicial Notice
In support of this MSJ Trepel asks the Court to take judicial notice of 33 documents (32 of which are also submitted for judicial notice in support of the MSJ/MSA directed at Feldman’s claims in the TAC). Each document is also submitted as a numbered exhibit included in the Index of Evidence submitted in support of each motion, and each is authenticated by the two declarations filed by Trepel counsel Joanne Madden (one in support of each motion directed at the TAC).

The request is GRANTED in part and DENIED in part as follows. Notice of exhibits 2, 7, 8, 14, 15 and 37 is DENIED. Judicial notice cannot be taken of the truth of the contents of declarations or deposition testimony from other litigation. (See Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1057 [court may take judicial notice of existence of declaration but not of facts asserted in it]; Bach v. McNelis (1989) 207 Cal.App.3d 852, 865 [court may not notice the truth of declarations or affidavits filed in court proceedings]; Garcia v. Sterling (1985) 176 Cal.App.3d 17, 22 [“Although the existence of statements contained in a deposition transcript filed as part of the court record can be judicially noticed, their truth is not subject to judicial notice.”]) While these exhibits may be admissible evidence, judicial notice of the truth of their contents is not appropriate.

The request is GRANTED as to exhibits 6, 16-20, 23-26, 27, 28, and 31, various court decisions involving Feldman/Solutions as they are relevant to the collateral estoppel argument made by Trepel in both motions directed at the TAC. “As a general rule factual findings in a judgment are not the proper subject of judicial notice. That does not end our inquiry. ‘‘Whether a factual finding is true is a different question than whether the truth of that factual finding may or may not be subsequently litigated a second time. The doctrines of res judicata and collateral estoppel will, when they apply, serve to bar relitigation of a factual dispute even in those instances where the factual dispute was erroneously decided in favor of a party who did not testify truthfully.’ [Citation.] In other words, even though a factual finding in a prior judicial decision may not establish the truth of that fact for purposes of judicial notice, the finding itself may be a proper subject of judicial notice if it has a res judicata or collateral estoppel effect in a subsequent action.’” (Hawkins v. SunTrust Bank (2016) 245 Cal.App.4th 1387, 1393, emphasis added, quoting Kilroy v. State of California (2004) 119 Cal.App.4th 140, 148.)

For purposes of collateral estoppel, a final judgment includes any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect based on the following factors: (1) whether the decision was not avowedly tentative; (2) whether the parties were fully heard; (3) whether the court supported its decision with a reasoned opinion; and (4) whether the decision was subject to an appeal. (South Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal.App.4th 634, 663.) Furthermore, collateral estoppel also precludes a party from raising “any legal theory or factual matter which could have been asserted in support of or in opposition to the issue which was litigated.” (Border Business Park, Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1565-1566; see also 7 Witkin, Cal. Procedure (5th ed. 2010) Judgment, §419 [citing cases].) Collateral estoppel applies “(1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 825.)

Notice of the remaining exhibits submitted for judicial notice, exhibits 4, 5, 9-13, 21, 22, 29, 30, 38, 39, copies of various pleadings or moving papers filed in various courts, is GRANTED solely as to the existence and filing dates of those documents pursuant to Evidence Code § 452(d).

Motion for Summary Judgment
Trepel’s motion for summary judgment of the TAC’s first cause of action for Professional Negligence as alleged by Plaintiff Solutions (the only claim in the TAC alleged by Plaintiff Solutions) is GRANTED.

“The failure to provide competent representation in a civil or criminal case may be the basis for civil liability under a theory of professional negligence. In a legal malpractice arising from a civil proceeding, the elements are (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.” (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 165 [internal quotations and citation omitted].) “In negligence cases arising from the rendering of professional services, as a general rule the standard of care against which the professional’s acts are measured remains a matter peculiarly within the knowledge of experts. Only their testimony can prove it, unless the lay person’s common knowledge includes the conduct required by the particular circumstances. This rule applies to legal malpractice cases.” (Unigard Ins. Group v. O’Flaherty & Belgum (1995) 38 Cal.App.4th 1229, 1239 [internal citations omitted].)

“‘Damage to be subject to a proper award must be such as follows the act complained of as a legal certainty . . .’ Conversely, ‘ ‘[t]he mere probability that a certain event would have happened, upon which a claim for damages is predicated, will not support the claim or furnish the foundation of an action for such damages.’’” (Filbin, supra, at pp. 165-166 [emphasis in original, internal citations omitted].) “In the legal malpractice context, the elements of causation and damage are particularly closely linked. The plaintiff must prove, by a preponderance of the evidence, that but for the attorney’s negligent acts or omissions, he would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred. This standard requires a ‘trial-within-a-trial’ of the underlying case, in which the malpractice jury must decide what a reasonable jury or court would have done if the underlying matter had been tried instead of settled. This method ‘is the most effective safeguard yet devised against speculative and conjectural claims … It is a standard of proof designed to limit damages to those actually caused by a professional’s malfeasance.’” (Namikas v. Miller (2014) 225 Cal.App.4th 1574, 1582 [emphasis added, internal citations omitted].)

Trepel has met his initial burden to show through admissible evidence that Solutions cannot prove under the applicable preponderance of the evidence standard that it would have obtained more favorable judgments or results in any of the litigation in which Trepel served as counsel “but for” Trepel’s alleged negligence. This evidence includes, but is not limited to, defense exhibit 1 (deposition testimony of David Feldman), exhibit 6 (the June 10, 2010 Judgment in, TAT Capital Partners, Ltd. v. Feldman, et al., Santa Clara County Case no. 1-05-CV-035531 [“TAT Case”]), exhibit 28 (the July 2, 2012 appellate decision in TAT Capital Partners, Ltd. v. Feldman, et al., 2012 WL 2529211, which affirmed the judgment, affirmed the trial court’s finding that the contract that led to the judgment was formed not by the consent agreement Trepel had suggested (but did not draft) but by the personal communications of David Feldman in which he offered investors a “pro rata” share of an expected judgment, and also ruled (at *7-*8) that “Subdivisions (b) and (c) of Corporations Code section 191 exclude from the definition of ‘transacting intrastate business’ a foreign corporation’s status as a shareholder of a domestic corporation, its act of maintaining a lawsuit, and ‘[h]olding meetings of its board or shareholders or carrying on other activities concerning its internal affairs.’ Neither Putney’s activities related to TAT’s internal affairs nor his use of his residence to carry out those activities was sufficient to constitute transacting business by TAT within California.”), exhibit 31 (the appellate decision in ZF Micro Devices, Inc. v. TAT Capital Partners, Ltd. (2016) 5 Cal.App.5th 69, which reinstated a cross-complaint against TAT and awarded appellant ZF Micro Devices its costs on appeal) , exhibit 32 (a copy of the court’s docket for case no. 2009-1-CV-134970, establishing that the case is active with a scheduled trial date of October 1, 2018), and exhibits 34 and 35 (copies of Plaintiffs’ expert witness disclosure and excerpts from the deposition testimony of their sole expert witness, John Steele).

Trepel’s evidence is sufficient to meet his initial burden as it demonstrates that the malpractice allegations against him in the TAC’s first cause of action are: 1) barred by the collateral estoppel effect of the various court judgments and orders in the other civil actions involving Feldman/Solutions and/or; 2) based on decisions for which Trepel was not responsible (Feldman’s personal communications to investors that were found in the TAT action to have created the contract that led to the Judgment) as established by the prior court decisions and Feldman’s deposition testimony in this case and/or 3) were decisions for which Feldman/Solutions cannot establish “but for” causation of damages as a matter of law, such as Trepel’s purported failures to challenge the standing and or capacity of the TAT and Sands entities (irrelevant as the court of appeal determined that those entities’ activities did not constitute “transacting intrastate business”) and his purported failures regarding the timing of bankruptcy filings and failure to serve as (additional) bankruptcy counsel, which could not have changed the fact that the fraudulent transfer judgment was not subject to discharge in bankruptcy (see 11 U.S.C. §523(a)6)).

When the burden shifts, Solutions is unable to raise any triable issue of material fact under the applicable preponderance of the evidence standard. Plaintiffs have—still—failed to properly submit any evidence with their oppositions to all three motions. Despite repeated references to them in the opposition papers, no declarations from David Feldman or from Martha Armstrong in opposition to these motions have been filed, both before the July 26 hearing date and after the Court’s July 27, 2018 order expressly directing them to “to timely file and serve the disputed declarations in opposition, and to confirm their actual filing and service, no later than the time mandated in Code of Civil Procedure §437c before the new hearing date.” The exhibits in Plaintiffs’ joint “Index of Evidence” submitted in opposition to all three motions are not (as Trepel’s evidentiary objections submitted with the replies to all three motions note) authenticated by anyone. These failures preclude consideration of Plaintiffs’ evidence. “‘Section 437c is a complicated statute. There is little flexibility in the procedural imperatives of the section, and the issues raised by a motion for summary judgment (or summary adjudication) are pure questions of law. As a result, section 437c is unforgiving; a failure to comply with any one of its myriad requirements is likely to be fatal to the offending party.’” (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 949 [quoting Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1607].)

3. MSJ/MSA re: the claims in the TAC as alleged by Plaintiff Feldman

Request for Judicial Notice
As noted above, the request for judicial notice in support of this motion is almost identical to that submitted in support of the motion directed at the first cause of action as alleged by Solutions. The request for judicial notice of the identified exhibits in support of this motion is GRANTED in part and DENIED in part on the same basis.

Motion for Summary Judgment/Adjudication
Trepel’s motion for summary judgment is DENIED as he has failed to meet his initial burden to establish a complete absence of triable issues of material fact as to all causes of action. This Court’s prior Order of June 20, 2016 denied summary adjudication of the TAC’s third cause of action, stating that triable issues remained “as to whether Mr. Trepel falsely represented the actions he would take while representing Plaintiffs and falsely represented what services he would provide in exchange for their separate $100,000 retainers.” (June 20, 2016 Order at 8:11-14.) As with the MSJ directed at Armstrong’s SAC, the motion for summary judgment as directed at the third cause of action for fraud/false promise in the Feldman/Solutions TAC is barred by CCP § 437c(f)(2) and, even if it were not, it would still be denied for failure to meet the initial burden as the central argument, that any evidence of any partial performance provides a complete defense to a promissory fraud claim, is not supported by California law.

Summary adjudication in the alternative of the first cause of action for professional negligence as alleged by Feldman is GRANTED. As stated above in the discussion of the same cause of action as alleged by Solutions, Trepel has met his initial burden as to this cause of action and when the burden shifts Feldman is unable to raise any triable issue of material fact as Plaintiffs continue to fail to properly submit any evidence in support of the opposition.

Summary adjudication in the alternative of the second cause of action for breach of contract is GRANTED. Feldman is bound by the TAC on summary judgment/adjudication and the second cause of action as pled is entirely derivative of the professional negligence claim.

Summary adjudication in the alternative of the fourth cause of action for breach of fiduciary duty is GRANTED. The claim as pled in the TAC is expressly based on a duty of care arising from the attorney-client relationship (see TAC at 40) and is therefore entirely derivative of the professional negligence claim. Trepel’s arguments and evidence in support of summary adjudication of the first cause of action meet his initial burden to establish that there no breach of fiduciary duty. The Court notes that Feldman’s opposition does include any argument in defense of the fourth cause of action.

Even if the still unfiled declaration of Plaintiff Feldman attached to the supplemental declaration of Plaintiffs’ Counsel filed July 23, 2018 at 3:09 PM (less than three days before the original hearing date for the motions directed at the Feldman/Solutions’ TAC) could properly be considered—and it cannot be—it would not raise any triable issues of material fact under the applicable preponderance of the evidence standard. Mr. Feldman’s statements disputing the factual findings in the trial court’s June 10, 2010 Judgment in the TAT case, affirmed in the July 2, 2012 appellate decision in TAT Capital Partners, Ltd. v. Feldman, et al., 2012 WL 2529211, have no impact on the res judicata/collateral estoppel effect of those decisions. Any continuing argument that the contract that led to the finding of liability in the TAT case was based on the consent agreement allegedly recommended by Trepel—rather than (as the trial court found) Mr. Feldman’s own oral and written communications to the TAT and Sands entities—is foreclosed, as is any continuing argument that the TAT and Sands entities lacked the ability to bring or maintain the lawsuit. The continuing arguments that the state court judgment could have somehow been collaterally attacked in the federal bankruptcy proceeding or that it would have been possible in bankruptcy to discharge a fraudulent transfer judgment fail as a matter of law. Mr. Feldman’s continuing arguments that Trepel is to blame for alleged malpractice by other attorneys also could not raise any triable issues of material fact even if they could be considered. Even if such arguments are not barred by the collateral estoppel/res judicata effect of the judgments in the unsuccessful malpractice actions against those attorneys (see Defense exhibits 23-27), they cannot raise a triable issue because they fail to show a reasonably proximate causal connection between any alleged failures by Mr. Trepel and the alleged injuries resulting from the alleged negligence of other attorneys. (See Filbin v. Fitzgerald, supra, 211 Cal.App.4th at 165.)

Finally, even if Mr. Feldman’s still unfiled declaration could be considered it does not properly authenticate any of the exhibits in Plaintiffs’ joint “Index of Evidence” submitted in opposition to all three motions. Therefore Trepel’s evidentiary objections to these exhibits (properly formatted and accompanied by proposed orders pursuant to Rule of Court 3.1354), timely filed with his three reply briefs, remain valid.