Case Name: Rudy Martin v. Chauvel & Glatt, LLP, et al.

Case No.: 16CV302969

Defendants’ Motion for Summary Judgment or, Alternatively, for Summary Adjudication of Issues

Factual and Procedural Background

Plaintiff Rudy Martin (“Martin”) claims a legal and equitable right, title, estate, and interest in real property located at 3905 Williams Road in San Jose (“Williams Property”) and 2963 Cormorant Road in Pebble Beach (“Cormorant Property”). (Complaint, ¶9.) Due to adverse claims being made against plaintiff Martin’s title to the two properties, plaintiff Martin hired defendants Chauvel & Glatt, LLP, Ronald C. Chauvel, April S. Glatt, and Derek O. Myers (collectively, “Defendants”) to quiet title and to protect the properties from being encumbered or transferred by recording a lis pendens. (Complaint, ¶9.)

Occipital Center, LLC (“Occipital”) purchased the Williams Property for an investment using funds for the down payment obtained from the Cormorant Property. (Complaint, ¶6.) In October 2007, Guang Yue Chen (“Chen”), a former member of Occipital, signed a notarized grant deed transferring title to the Williams Property to Occipital. (Complaint, ¶6.) In April 2015, Defendants advised plaintiff Martin to record the grant deed he held upon the Williams Property. (Complaint, ¶10.) The Santa Clara County Recorder held plaintiff Martin’s grant deed without recording because Chen, the signatory of the notarized grant deed, claimed the grant deed was fraudulent. (Complaint, ¶10.)

On June 13, 2015, plaintiff Martin and Defendants entered into an attorney-client fee agreement for Defendants to file a quiet title complaint and to quickly record lis pendens on the Williams Property and the Cormorant Property to protect the properties from being transferred or encumbered adversely to plaintiff Martin’s interest. (Complaint, ¶11.) Defendants agreed to proceed quickly with filing a complaint and recording a lis pendens. (Id.) Defendants requested $7,500 in retainer fees. (Id.)

Months went by with no action by Defendants so plaintiff Martin drafted a complaint that was filed in September 2015. (Complaint, ¶12.) At the end of October 2015, Defendants reported exhausting the $7,500 retainer and demanded additional retainer money before continuing work. (Complaint, ¶¶13 – 14.) A dispute over ownership of plaintiff Martin’s case file arose and Defendants withheld plaintiff Martin’s case file for one month. (Complaint, ¶14.)

In the middle of November 2015, Chen recorded grant deeds fraudulently conveying the Williams Property and the Cormorant Property to the Guang Yue Chen Revocable Living Trust. (Complaint, ¶¶16 – 17.) The recording of grant deeds on the two properties caused property tax increases and subsequent delinquencies in excess of $50,000. (Complaint, ¶19.) The mortgages on the two properties are in arrears and subject to foreclosure. (Id.)

In or about January 2016, plaintiff Martin discovered that in August 2015, Chen secretly dissolved Occipital. (Complaint, ¶18.)

On November 21, 2016, plaintiff Martin filed a complaint against Defendants asserting causes of action for:

(1) Legal Malpractice
(2) Breach of Fiduciary Duty
(3) Negligence

On February 1, 2017, Defendants filed an answer to plaintiff Martin’s complaint.

On March 20, 2019, Defendants filed the motion now before the court, a motion for summary judgment/ adjudication of plaintiff Martin’s complaint.

III. Defendants’ motion for summary judgment is GRANTED.

A. Requests for judicial notice.

In support of their motion for summary judgment/ adjudication, Defendants request judicial notice of various court records. Evidence Code section 452, subdivision (d) states that the court may take judicial notice of “[r]ecords of any court of this state.” This section of the statute has been interpreted to mean that the trial court may take judicial notice of the existence of the court’s own records. Evidence Code section 452 and 453 permit 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.) Accordingly, Defendants’ request for judicial notice in support of motion for summary judgment/ adjudication of issues is GRANTED, in part, as to Exhibits A, H – J and P. Defendants’ request for judicial notice in support of motion for summary judgment/ adjudication of issues is otherwise DENIED as the court does not find the requests to be necessary, helpful or relevant. (See Duarte v. Pacific Specialty Insurance Company (2017) 13 Cal.App.5th 45, 51, fn. 6—denying request where judicial notice is not necessary, helpful or relevant.)

In opposition to the motion for summary judgment/ adjudication, plaintiff Martin requests judicial notice of copies of recorded documents attached to the complaint in the underlying action, case number 115CV285753. Plaintiff Martin’s request for judicial notice is defective. Plaintiff Martin’s request for judicial notice fails to comply with California Rules of Court, rule 3.1306, subdivision (c) which states, in relevant part, “A party requesting judicial notice of material under Evidence Code section 452 or 453 must provide the court and each party with a copy of the material.” Not only does plaintiff Martin’s request violate California Rules of Court, rule 3.1306, subdivision (c), plaintiff Martin’s request also violates California Rules of Court, rule 3.1113, subdivision (l) which states, “Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c).” For those reasons, plaintiff Martin’s request for judicial notice is DENIED.

B. Causation/ Speculative Damages.

Defendants contend plaintiff Martin’s complaint fails because he cannot establish causation and/or any resulting damages are entirely speculative. In Ferguson v. Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037, 1048, the court wrote, “[D]amages may not be based upon sheer speculation or surmise, and the mere possibility or even probability that damage will result from wrongful conduct does not render it actionable.” In Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 989, the court wrote, “Whatever its measure in a given case, it is fundamental that ‘damages which are speculative, remote, imaginary, contingent, or merely possible cannot serve as a legal basis for recovery. [Citations.]’ [Citations.] [‘It is black-letter law that damages which are speculative, remote, imaginary, contingent or merely possible cannot serve as a legal basis for recovery’].)

“In order to establish a cause of action for legal malpractice the plaintiff must demonstrate: (1) breach of the attorney’s duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a proximate causal connection between the negligent conduct and the resulting injury; and (3) actual loss or damage resulting from the negligence.” (Carlton v. Quint (2000) 77 Cal.App.4th 690, 699; see also CACI No. 600.)

“To recover damages from [defendant], [plaintiff] must prove that she would have obtained a better result if [defendant] had acted as a reasonably careful attorney.” (CACI No. 601) “It is only where the alleged malpractice consists of mishandling a client’s claim that the plaintiff must show proper prosecution of the matter would have resulted in a favorable judgment and collection thereof.” (DiPalma v. Seldman (1994) 27 Cal.App.4th 1499, 1506.) “If the allegedly negligent conduct does not cause damage, it generates no cause of action in tort. 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.” (Budd v. Nixen (1971) 6 Cal.3d 195, 200; Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 749 – 750.)

In a client’s action against an attorney for legal malpractice, the client must prove, among other things, that the attorney’s negligent acts or omissions caused the client to suffer some financial harm or loss. When the alleged malpractice occurred in the performance of transactional work (giving advice or preparing documents for a business transaction), must the client prove this causation element according to the “but for” test, meaning that the harm or loss would not have occurred without the attorney’s malpractice? The answer is yes.

(Viner v. Sweet (2003) 30 Cal.4th 1232, 1235.)

“Proof of legal malpractice requires proof not only of negligence by the lawyer but also of causation, a trial within a trial to establish that, but for the lawyer’s negligence, the client would have prevailed in the underlying action.” (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 864 (Kurinij); see also Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464, 488; see also United Community Church v. Gavin (1991) 231 Cal.App.3d 327, 334.)

“The issue of causation may be decided as a question of law only if, under undisputed facts, there is no room for a reasonable difference of opinion. [Citations.] ‘The question about what would have happened had [the lawyer] acted otherwise is one of fact unless reasonable minds could not differ as to the legal effect of the evidence presented. [Citation.]’” (Kurinij, supra, 55 Cal.App.4th at p. 864.)

In moving for summary judgment, Defendants contend plaintiff Martin cannot establish causation or cannot establish damages with certainty. “Where plaintiffs have had adequate opportunity for discovery, their factually devoid responses to discovery requests may ‘show’ that one or more elements of their claim ‘cannot be established.’” (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶10:245.20, p. 10-108 citing Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590—“a moving defendant may rely on factually devoid discovery responses to shift the burden of proof pursuant to section 437c, subdivision (o)(2). Once the burden shifts as a result of the factually devoid discovery responses, the plaintiff must set forth the specific facts which prove the existence of a triable issue of material fact.”)

Here, Defendants proffer evidence that they sought discovery from plaintiff Martin to determine what evidence plaintiff had to support his claims, but plaintiff Martin has only provided factually devoid discovery responses despite a court order granting Defendants’ motion to compel further responses.

In opposition, plaintiff Martin initially objects to the motion for summary judgment/ adjudication on the ground that Defendants did not confer with him prior to the filing of the motion. There is no meet and confer requirement. Plaintiff’s citation to Code of Civil Procedure section 437c, subdivision (t)(1) is misplaced. That particular language only requires the parties to provide a joint stipulation in seeking summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty. Here, Defendants seek summary judgment or, alternatively, summary adjudication that would completely dispose of a cause of action so Code of Civil Procedure section 437c, subdivision (t)(1) does not apply.

Plaintiff Martin also complains Defendants have not responded to his discovery. There are remedies available to plaintiff Martin if Defendants have improperly refused to respond to discovery, but plaintiff Martin’s assertion alone is not a basis for overcoming this motion for summary judgment/ adjudication.

Finally, plaintiff Martin’s opposition asserts there are triable issues of material fact pointing primarily to recorded documents for which plaintiff Martin requests judicial notice. As discussed above, plaintiff Martin’s request for judicial notice is defective. Plaintiff Martin asks this court to take judicial notice of grant deeds which he contends “clearly show that the real property subject of this case were signed away in November of 2015 at the time defendants withheld carrying out what they had agreed to and had been paid for, which was to get Lis Pendens recorded.” Even if this court were to take judicial notice of the fact that some interest in the two properties at issue were conveyed in November 2015 prior to the recording of a lis pendens, plaintiff Martin has not raised a triable issue with regard to causation or with regard to any damages.

“ ‘A lis pendens is a recorded document giving constructive notice that an action has been filed affecting title or right to possession of the real property described in the notice.’ [Citation.]” (Park 100 Investment Group II, LLC v. Ryan (2009) 180 Cal.App.4th 795, 807.) “A lis pendens provides constructive notice of the litigation, such that any judgment later obtained in the action relates back to the filing of the lis pendens. A lis pendens clouds title until the litigation is resolved or the lis pendens is expunged, and any party acquiring an interest in the property after the action is filed will be bound by the judgment.” (Cyr v. McGovran (2012) 206 Cal.App.4th 645, 652, citations omitted.)

Recording of a lis pendens would not have prevented Chen from transferring title to the Williams Property and Cormorant Property in November 2015. Lis pendens would have merely put Chen on constructive notice that plaintiff Martin was making a claim to those two properties. In order for plaintiff Martin to demonstrate that Defendants’ failure to record a lis pendens caused him to suffer some injury, plaintiff Martin would have had to demonstrate that he had some right, title, or interest to the Williams Property and Cormorant Property which is superior to that which plaintiff Martin alleges was conveyed away by Chen in November 2015. Defendants proffer undisputed evidence that the underlying case was ordered dismissed on September 13, 2018 for plaintiff’s failure to appear for trial. In other words, plaintiff Martin has not demonstrated any superior right, title, or interest to the two properties at issue. Consequently, plaintiff Martin has not presented any admissible evidence which would present a triable issue of material fact with regard to causation or to damages.

Accordingly, Defendants’ motion for summary judgment is GRANTED.