Motion for Summary Judgment by Defendant Patricia Lynne Conkling to the Complaint of Plaintiff Nancy T. Chu

On January 23, 2014, Defendant moved to strike Plaintiff’s opposition papers for noncompliance with various statutes regarding filing and service. Since Defendant has not been prejudiced by this noncompliance and given the preference for determination on the merits, the motion is denied. However, Plaintiff is advised that she must comply with applicable statutes and rules, and that the court may consider striking noncompliant papers in the future.

Evidence

Defendant’s request for judicial notice is GRANTED. (See Evid. Code § 452, subd. (d); see also Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files].)

Plaintiff’s evidentiary objections are OVERRULED.

Defendant’s evidentiary objections are SUSTAINED IN PART and OVERRULED IN PART. The court sustains Objection Nos. 1, 2, 3, 4, 5, 6, 10, 11, 12, 13, 14, 15, 18, 20, 22, 23, 24, 25, 33, 34, 35, 36, 37, 38, 40, and 43. The court overrules Objection Nos. 7, 8, 9, 16, 17, 19, 21, 26, 27, 28, 29, 30, 31, 32, 39, 41, and 42.

Motion for Summary Judgment

On September 20, 2012, Plaintiff filed a complaint against Defendant alleging a single cause of action for legal malpractice. Plaintiff claims that she relied on Defendant’s advice with respect to her right to bring a malpractice action against attorney Jessica Wang. (See Complaint at ¶ 37.) As a result of Defendant’s negligence, Plaintiff alleges that she has permanently and irrevocably lost her right of action against Wang. (Id. at ¶ 42.)

On November 14, 2013, Defendant filed the motion presently before the court, a motion for summary judgment to the complaint on the grounds that: (1) Plaintiff cannot establish a malpractice case against Wang to support her claim against Defendant; and (2) the statute of limitations bars Plaintiff’s legal malpractice claim. (Code Civ. Proc. § 437c.)

“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. 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 v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272 [internal citations omitted].)

“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].)

However, to prevail in a legal malpractice action, simply showing the attorney erred is not enough. (Orrick Herrington & Sutcliffe v. Sup. Ct. (2003) 107 Cal.App.4th 1052, 1057.) “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. 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.” (Blanks v. Seyfarth Shaw LLP, (2009) 171 Cal.App.4th 336, 357 [internal citations and quotation marks omitted].)

Thus, to prevail on her claim for legal malpractice against Defendant, Plaintiff needs to demonstrate that she could have brought a malpractice claim against Wang. On summary judgment, Defendant argues that Wang did not owe any duty to Plaintiff as a third-party beneficiary under the 2003 Trust Agreement and Grant Deed.

“A key element of any action for professional malpractice is the establishment of a duty by the professional to the claimant.” (Chang v. Lederman (2009) 172 Cal.App.4th 67, 76 [citation and quotation marks omitted].) “Whether a lawyer sued for professional negligence owed a duty of care to the plaintiff is a question of law and depends on a judicial weighing of the policy considerations for and against the imposition of liability under the circumstances.” (Ibid.)

California decisions recognize an enforceable duty of care in cases involving a negligently drafted or executed testamentary instrument when the plaintiff was an expressly named beneficiary of an express bequest. (Chang v. Lederman, supra, 172 Cal.App.4th at p. 82; see Hall v. Kalfayan (2010) 190 Cal.App.4th 927, 937 [there needs to be a clear delineation of an attorney’s duty to nonclients].) Conversely, when the claim is that “a will or trust, although properly executed and free of other legal defects, did not accurately express the testator’s intent, no duty or liability to the nonclient potential beneficiary has been recognized. That is, where there is a question about whether the third party beneficiary was, in fact, the decedent’s intended beneficiary—where intent is placed in issue—the lawyer will not be held accountable to the potential beneficiary.” (Chang, supra; see Boranian v. Clark (2004) 123 Cal.App.4th 1012, 1018 [liability to a third party will not be imposed where there is a substantial question about whether the third party was in fact the decedent’s intended beneficiary].)

Here, the undisputed evidence shows that, in February 2003, Toni Chu, Plaintiff’s mother, executed a Trust Agreement and Grant Deed that would distribute all interest in the Subject Property to Plaintiff upon her death. (See Defendant’s Separate Statement of Undisputed Facts at Nos. 3, 4, and 5.) The 2003 Grant Deed provided that upon recordation, Toni’s interest in the Subject Property would be conveyed to her Trust. (Id. at No. 4.) Thereafter, Toni executed and recorded a 2004 Grant Deed reaffirming her joint tenancy with her son, Tom Chu. (Id. at No. 12.) There is no testimony in this record with respect to Toni’s intention to change the beneficiary designation. However, California courts have found that subsequent documentary evidence may supersede the original beneficiary designation. (See Snyder v. Snyder, (1987) 197 Cal.App.3d 6, 11; see also Life Insurance Co. of North America v. Cassidy (1984) 35 Cal.3d 599, 602 [California Supreme Court concluded that the designation of the former wife as beneficiary was superseded as of the date the parties entered into a marital settlement agreement which comprehensively disposed of all rights and obligations between them].) That situation exists here given the 2004 recorded Grant Deed identifying Toni and Tom as joint tenants. (See Grothe v. Cotlandt Corp. (1992) 11 Cal.App.4th 1313, 1317 [when one joint tenant dies, the entire estate belongs automatically to the surviving joint tenant].) Furthermore, there is no record evidence showing that Toni changed her mind and intended to gift her interest over to the Plaintiff.

In addition, the court notes that there is no evidence to show that the joint tenancy has been severed. Civil Code section 683.2 permits a joint tenant to sever the tenancy without the consent of other joint tenants through execution of a deed transferring the joint tenant’s interest to a third person or other written instrument that evidences the intent to sever the joint tenancy. However, to be effective, [§683.2] requires a written instrument purporting to sever a joint tenancy to be recorded before the joint tenant’s death or notarized within three days before the joint tenant’s death and recorded within seven days after the death. Here, the undisputed material facts clearly show that the 2003 transfer to the trust failed to comply with section 683.2, subdivision (c) to be effective. (See Defendant’s Separate Statement of Undisputed Facts at Nos. 11, 16, and 20.) This is because the 2003 Trust Agreement and Grant Deed were not recorded until April 20, 2010, several weeks after Toni’s death. (Id. at No. 20.) Accordingly, Tom’s right of survivorship was never extinguished and the entire estate automatically belongs to Tom upon the death of his mother.

In opposition, Plaintiff makes no attempt to distinguish either Cassidy or Snyder, cited by Defendant, with this case. Instead, Plaintiff argues that the reason for the 2004 Grant Deed in joint tenancy was to allow the Subject Property to be refinanced. (See Plaintiff’s Declaration at ¶¶ 12, 13, and 14.) However, this argument is based on inadmissible evidence and thus fails to raise a triable issue of fact to defeat summary judgment. (See Defendant’s Evidentiary Objections at Nos. 12, 13, and 14; see also Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011) 199 Cal.App.4th 1132, 1144-1145 [a party cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact].)

Therefore, the court finds no basis for attorney liability to a third party where substantial questions remain as to whether the third-party beneficiary was, in fact, the decedent’s intended beneficiary. (See Boranian v. Clark, supra, 123 Cal.App.4th at p. 1018.) Since Tom was the intended beneficiary, Wang owed no duty to Plaintiff to support a claim for malpractice. (See Moore v. Anderson Zeigler Disharoon Gallagher & Gray (2003) 109 Cal.App.4th 1287, 1294 [absent duty there can be no breach and no negligence].) Thus, Plaintiff cannot sustain her case for legal malpractice against Defendant.

Accordingly, Defendant’s motion for summary judgment is GRANTED. Having granted the motion on this ground, the court declines to address the remaining grounds for the motion.