Tentative Ruling

Judge Pauline Maxwell
Department 6 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Sheila Gianelli vs Mark Schwartz et al
Case No: 18CV02660
Hearing Date: Wed Nov 06, 2019 9:30

Nature of Proceedings: Motion Summary Judgment/Adjudication

TENTATIVE RULING: Plaintiff’s motion for summary judgment or, in the alternative, summary adjudication is denied. The court finds that there are triable issues of material fact as to each of plaintiff’s causes of action.

BACKGROUND:

This is a legal malpractice action. Plaintiff Sheila Gianelli worked as the General Manager of a Home Depot distribution center in Lathrop, California from December 15, 2008, until she was fired on November 23, 2010. Home Depot maintains that plaintiff was fired for poor performance, but plaintiff claims that she was subject to a hostile work environment and terminated when she complained about discriminatory conduct by management and other workers. On January 31, 2011, plaintiff hired defendant Mark Schwartz (“Schwartz”), a Pennsylvania attorney, to represent her in an employment discrimination action against Home Depot. On September 13, 2013, Schwartz filed a complaint against Home Depot in the U.S. District Court for the Eastern District of California, Case No. 2:13-cv-01969-JAM-CKD. Defendant Eric A. Woosley (“Woosley”), a Santa Barbara attorney, was later named as co-counsel for plaintiff in the underlying case.

After discovery had been completed in the underlying action, Home Depot filed a motion for summary judgment. Plaintiff, through her attorneys, filed opposition to the Home Depot motion, including a memorandum of points and authorities, four declarations, a responsive “separate statement,” and a request for judicial notice of another discrimination complaint filed against Home Depot. Despite the opposition, the U.S. District Court on May 16, 2016 granted the summary judgment motion and entered judgment in favor of Home Depot. Plaintiff moved for reconsideration of the ruling, but the motion was denied. Plaintiff then appealed. In July 2017, the Ninth Circuit affirmed the judgment.

On May 5, 2017, plaintiff filed her complaint against Schwartz and Woosley for (1) legal malpractice, (2) breach of fiduciary duty, and (3) fraud. Plaintiff now moves for summary judgment or, in the alternative, summary adjudication. Plaintiff contends that there are no triable issues of material fact in the case and that she is entitled to judgment as a matter of law. Defendants oppose the motion.

ANALYSIS:

Request for Judicial Notice

Plaintiff has requested that the court take judicial notice of (1) California Rules of Professional Conduct, (2) Local Rule 180 b(2)(iv) and (e) for the U.S. District Court for the Eastern District of California, (3) records of the U.S. District Court for the Eastern District of California in the matter of Sheila Gianelli v. The Home Depot, Inc., Case No. 2:13-cv-01969-JAM-CKD, including (i) Docket Report, (ii) Pro Hac Vice Application of Mark D. Schwartz, Attorney at Law (iii) Undisputed Facts in Opposition to Home Depot’s Motion for Summary Judgment, (iv) Declaration of Travis Lawrence in Support of Home Depot’s Summary Judgment Motion, (v) Declaration of Janise Kring in Support of Home Depot’s Summary Judgment Motion, (vi) Transcript of Hearing on Home Depot’s Motion for Summary Judgment, and (vii) Declaration of Eric Woosley in Support of Motion to Withdraw, and (4) State Bar Formal Opinion No. 467, Los Angeles County.

Item (1) is properly the subject of judicial notice as it sets forth the rules of professional conduct for members of the bar of this state that were adopted pursuant to Business and Professions Code Section 6076. Evid. Code §451, subd. (c). Items (2) and (4) are properly the subject of judicial notice as official acts of the legislative, executive, and/or judicial departments of this state. Evid. Code §452, subd. (c). Item (3) includes various records of the U.S. District Court, Case No. 2:13-cv-01969-JAM-CKD, and is properly the subject of judicial notice with regard to the existence of the documents and the fact that they were filed with the court, but not the truth of any statements contained in the documents. Columbia Casualty Company v. Northwestern National Insurance Company (1991) 231 Cal.App.3d 457, 473.

Defendants have requested that the court take judicial notice of (1) Declaration of Sheila Gianelli Submitted in Support of Opposition to Home Depot’s Motion for Summary Judgment in U.S. District Court Case No. 2:13-cv-01969-JAM-CKD, (2) Order Granting Summary Judgment to Home Depot in U.S. District Court Case No. 2:13-cv-01969-JAM-CKD, and (3) Order Denying Sheila Gianelli’s Request for Reconsideration in U.S. District Court Case No. 2:13-cv-01969-JAM-CKD.

Items (1), (2), and (3) are properly the subject of judicial notice with regard to the existence of the documents and the fact that they were filed with the court, but not the truth of any statements contained in the documents. Columbia Casualty Company v. Northwestern National Insurance Company, supra, 231 Cal.App.3d 457, 473.

Evidentiary Objections

“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. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” Code Civ. Proc. §437c, subd. (q).

Defendants objected to portions of the Declaration of Sheila Gianelli and the Addendum to Declaration of Sheila Gianelli submitted in support of plaintiff’s motion for summary judgment. The court declines to rule on the objections as it did not consider any of the objected to statements in deciding the motion.

Motion for Summary Judgment/Adjudication

Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or there is no defense to the action. Code Civ. Proc. §437c, subd. (a). Summary judgment is properly granted if all the papers submitted in support of the motion show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Code Civ. Proc. §437c, subd. (c). A party may also move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, or one or more claims for damages if it is contended that the cause of action has no merit, there is no merit to the affirmative defense, or there is no merit to the claim for damages. Code Civ. Proc. §437c, subd. (f)(1). A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, or a claim for damages. Code Civ. Proc. §437c, subd. (f)(1).

Plaintiff’s first cause of action is for legal malpractice. The elements of a cause of action for professional negligence are “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.” Budd v. Nixen (1971) 6 Cal.3d 195, 200. Thus, a prima facie case of legal malpractice requires affirmative proof that the defendant’s conduct fell below the standard of care and that such conduct was the proximate or legal cause of the plaintiff’s damages. Because the standard of care of an attorney is not a matter of general knowledge, the plaintiff in a legal malpractice action must establish the standard of care through the testimony of a qualified expert. Lysick v. Walcom (1968) 258 Cal.App.2d 136, 156. The absence of qualified expert testimony is fatal to any legal malpractice suit. Lipscomb v. Krause (1978) 87 Cal.App.3d 970, 976.

Here, plaintiff has failed to provide any expert testimony in support of her legal malpractice claim, but argues that defendants’ errors were “obvious,” so she does not need an expert. “Where the failure of attorney performance is so clear that a trier of fact may find professional negligence unassisted by expert testimony, then expert testimony is not required.” Wilkinson v. Rives (1981) 116 Cal.App.3d 641, 647-648. The present case is not of that character, however. Plaintiff alleges that defendants breached their duties of competency and advocacy because they failed to cite to excerpts from the deposition transcripts in the separate statement filed in opposition to Home Depot’s summary judgment motion and because they never moved to compel documents from Home Depot. (Motion, p. 10:9-23.) However, whether counsel in a complex employment discrimination case should have included the deposition testimony of certain witnesses in opposition to a summary judgment motion and/or obtained additional documents in discovery are not “obvious” matters within a layperson’s common knowledge. Accordingly, plaintiff’s failure to submit an expert declaration precludes summary adjudication on her legal malpractice claim.

Importantly, defendants have presented uncontradicted evidence in the form of the declaration of Janean Daniels, a Santa Barbara attorney with nearly 30 years of experience in employment law and civil litigation, that their conduct did not fall below the applicable standard of care in the underlying case. Ms. Daniels reviewed the documents filed in support of and in opposition to Home Depot’s summary judgment motion and, in her opinion, the opposition points and authorities, responsive separate statement, and declarations addressed the factual and legal issued raised by Home Depot with skill and care. (Daniels Dec., ¶17.) Further, defendants did not “fail to include” excerpts from the depositions taken in the underling case, as plaintiff alleges, but instead chose to support plaintiff’s case through her own 39-page declaration and through the evidence that Home Depot itself had included in support of its motion. (Woosley Dec., ¶15.) Counsel proceeded in this manner because they believed the depositions of the other witnesses actually undermined plaintiff’s case. (Ibid.)

Plaintiff’s legal malpractice claim fails for the additional reason that she has presented no proof of causation. To establish that an attorney committed malpractice in handling a lawsuit, the plaintiff must prove that, but for the attorney’s negligence, the plaintiff would have prevailed in the underlying action. DiPalma v. Seldman (1994) 27 Cal.App.4th 1499, 1507; see also, Campbell v. Magana (1960) 184 Cal.App.2d 751, 754 (“[O]ne who establishes malpractice on the part of his attorney in prosecuting or defending a lawsuit must also prove that careful management of it would have resulted in recovery of a favorable judgment.”). This is generally done through the “trial within a trial” or “case within a case” method. Mattco Forge, Inc. v. Arthur Young & Company (1997) 52 Cal.App.4th 820, 834. Here, to prove her “case within a case,” plaintiff cites to excerpts from various deposition transcripts that she contends should have been submitted in opposition to Home Depot’s summary judgment motion because they show that Home Depot fabricated the reasons for her termination. (Motion, pp. 14:5-16:11.) These excerpts, however, do not prove that plaintiff was discriminated against because of her age and gender. Home Depot offered equally compelling evidence that plaintiff was let go because of repeated poor performance and inadequate leadership. (Woosley Dec., ¶16.) The matter of causation, therefore, remains a triable issue of fact.

Plaintiff is also not entitled to summary adjudication on her breach of fiduciary duty cause of action. To prevail on a cause of action for breach of fiduciary duty, a plaintiff must prove (1) the existence of a fiduciary relationship and duty on the part of the defendant, (2) the defendant’s breach of that duty, and (3) damage proximately caused by the breach. City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith (1998) 68 Cal.App.4th 445, 483. A fiduciary relationship “is any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party.” Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 29 (internal quotes omitted). The relationship between an attorney and client is regarded as a fiduciary relationship. Baum v. Duckor, Spradling & Metzger (1999) 72 Cal.App.4th 54, 69.

Plaintiff contends that Schwartz and Woosley breached their fiduciary duties to her because they did not have a written fee-sharing agreement. (Motion, pp. 7:15-10:1.) California Rules of Professional Conduct (“CRPC”), Rule 1.5.1, provides that “[l]awyers who are not in the same firm shall not divide a fee for legal services unless: (1) the lawyers enter into a written agreement to divide the fee; (2) the client has consented in writing either at the time the lawyers enter into the agreement to divide the fee or as soon thereafter as reasonably practicable . . . ; [and] (3) the total fee charged by all lawyers is not increased solely by reason of the agreement to divide fees.” Plaintiff alleges that she was harmed by the absence of a fee agreement between defendants because it likely caused defendants to disagree, which in turn, prevented them from taking effective action in her case. (Motion, p. 8:4-12.) Woosley separately breached his fiduciary duty to plaintiff by failing to provide a written attorney-client fee agreement, as required by Business and Professions Code Section 6147.

Neither contention supports a claim in this case. First, while an alleged violation of the CRPC might subject an attorney to discipline, it does not provide a basis for civil liability. “There is no independent cause of action for the breach of a disciplinary rule.” Ross v. Creel Printing & Publishing Company (2002) 100 Cal.App.4th 736, 746. Plaintiff has cited to no authority in support of her argument that an alleged breach of the CRPC is tantamount to a breach of fiduciary duty. Second, as to plaintiff’s claim that Woosley breached his fiduciary duty by failing to have a written fee agreement, in violation of the Business and Professions Code, as with the CRPC, such a violation, even if true, does not provide a basis for civil liability. Rather, noncompliance only makes the agreement voidable at the option of the client. Bus. & Prof. Code §6148, subd. (c) (“Failure to comply with any provision of this section renders the agreement voidable at the option of the client, and the attorney shall, upon the agreement being voided, be entitled to collect a reasonable fee.”).

Plaintiff next alleges that defendants breached their fiduciary duties by failing to communicate with her regarding significant developments in the underlying case. (Motion, pp. 11:20-12:3.) This allegation is denied by defendants as they state that they regularly communicated with plaintiff during the case, both by telephone and email. (Schwartz Dec., ¶14; Woosley Dec., ¶21.) Although defendants did not provide a “written opinion” to plaintiff regarding the strengths and weaknesses of her case, they repeatedly discussed with her their evaluation of the suit. (Ibid.) The last of these conversations occurred in April 2016, when defendants telephoned plaintiff to advise her that they wished to withdraw from the case. (Ibid.) That discussion involved a detailed review of the underlying facts, as well as defendants’ professional opinion that the case did not have the value plaintiff claimed it did. (Ibid.)

Lastly, plaintiff contends that defendants breached their fiduciary duties of competency and advocacy. (Motion, pp. 10:2-11:19.) This argument, however, is simply a repeat of plaintiff’s malpractice claim and is based on disputed facts. Plaintiff again alleges that defendants breached their duty to prepare competent opposition to Home Depot’s summary judgment motion, but, as noted above, Woosley filed timely opposition to the motion that included a memorandum of points and authorities, four declarations (one from plaintiff, two from third parties, and one from himself), a 165-page responsive separate statement, and a request for judicial notice of another discrimination complaint against Home Depot. (Woosley Dec., ¶9.) While plaintiff claims that defendants omitted important deposition testimony in their opposition that would have changed the outcome of the motion, defendants deny this and state that the testimony was deliberately not included because it was not helpful. (Woosley Dec., ¶15.)

Plaintiff’s final cause of action is for fraud. The elements of a cause of action for fraud or intentional misrepresentation are (1) a false representation, concealment, or nondisclosure of a material fact, (2) knowledge of its falsity, (3) intent to defraud, (4) justifiable reliance, and (5) resulting damage. Robinson Helicopter Company, Inc. v. Dana Corporation (2004) 34 Cal.4th 979, 990. Here, plaintiff alleges that defendants falsely represented to the court in the underlying case that she had agreed to voluntarily let them out of the case when that was not true. (Motion, p. 19:8-12.) Plaintiff further alleges that Woosley falsely represented to the court that she had breached her agreement to pay costs. (Motion, p. 19:16-22.) Plaintiff does not cite to any evidence in support of these claims, nor does she explain how the allegedly false statements satisfy the elements of a fraud cause of action. Also, plaintiff has not shown how defendants’ decision to withdraw from the case or their disagreement over the payment of costs caused her to lose the underlying action. Plaintiff’s motion for summary adjudication of her fraud claim must therefore be denied.

Based on the foregoing, plaintiff’s motion for summary judgment or, in the alternative, summary adjudication will be denied. The court finds that there are triable issues of material fact as to each of plaintiff’s causes of action.