Filed 10/20/20 Anton v. Barbich Hooper King Dill etc. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THOMAS ANTON et al.,
Plaintiffs and Appellants,
v.
BARBICH HOOPER KING DILL HOFFMAN
ACCOUNTANCY CORPORATION et al.,
Defendants and Respondents.
F073713 & F074644
(Super. Ct. No. S-1500-CV 281077)
OPINION
APPEALS from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge.
Darling & Wilson, Joshua G. Wilson; Thomas Anton & Associates and Becky M. Brooks for Plaintiffs and Appellants.
Garrett & Tully, Stephen J. Tully, Efren A. Compean and John C. Tully for Defendants and Respondents.
-ooOoo-
Attorney Thomas Anton hired a certified public accountant to provide accounting advice and serve as an expert witness in a lawsuit between Anton and another attorney addressing how to allocate the fees and expenses from a group of toxic tort cases they handled together. During the jury trial of that dispute, Anton settled with the other attorney. He then sued the accountant for professional malpractice, alleging (1) the accountant’s inaccurate accountings and advice exposed him to a substantial adverse jury award and possible State Bar sanctions and (2) his settlement reasonably mitigated these potential damages and sanctions caused by the accountant’s malpractice.
The accountant moved for summary judgment on the ground Anton could not establish the elements of causation or damages. The trial court granted the motion and Anton appealed. A critical legal issue in this appeal is how to interpret California State Auto. Assn. Inter-Ins. Bureau v. Parichan, Renberg, Crossman & Harvey (2000) 84 Cal.App.4th 702 (Parichan) in light of our Supreme Court’s disapproval of that decision in Viner v. Sweet (2003) 30 Cal.4th 1232 (Viner).
We conclude Parichan does not stand for the principle that a client suing for professional malpractice can establish the existence of a triable issue of material fact about causation and damage by showing the professional’s alleged negligence simply increased the client’s exposure to monetary liability or sanctions.
We further conclude “a plaintiff in a [professional] malpractice action must show that but for the alleged malpractice, it is more likely than not that the plaintiff would have obtained a more favorable result.” (Viner, supra, 30 Cal.4th at p. 1244.) To establish causation in fact, the plaintiff must show “what would have happened if the defendant [professional] had not been negligent” and compare that “hypothetical alternative” with “historical events”—that is, the actual outcome of the underlying litigation. (Id. at p. 1242.) Here, Anton did not present sufficient evidence to establish what the hypothetical alternative would have been and, as a result, the comparison essential to establishing causation and damages could not be made. In short, Anton’s erroneous view of Parichan resulted in a failure to present evidence from which a reasonable jury could find that, but for the alleged negligence, an outcome more favorable than the actual settlement would have been obtained.
We therefore affirm the judgment.
FACTS
Plaintiff Thomas Anton is the principal attorney in the law firm of Thomas Anton & Associates, Inc. in Bakersfield (collectively, Anton). In 2000, Anton became involved in a series of environmental contamination cases in which he represented individuals with toxic tort claims. Anton and Attorney Michael P. Dolan formed a partnership to handle these cases. Anton and Dolan did not merge their law practices but entered into a memorandum of agreement dated June 20, 2000. Under the agreement, Anton was to pay 60 percent of the costs and receive 60 percent of the fees generated by the contamination cases while Dolan would pay 40 percent of the costs and receive 40 percent of the fees. This agreement subsequently was modified to increase Anton’s percentage of the fees. These cases were later consolidated and joined with the lead case of Adams v. PG&E (Adams Cases).
The Adams Cases settled by December 2007. One aspect of the settlement was the establishment of a settlement fund. Anton and Dolan hired Joseph Etienne to act as the trustee and administer the distribution of the settlement proceeds to the clients.
In 2008, Anton and Dolan evaluated claims of other individuals who asserted injuries similar to those suffered by the plaintiffs in the Adams Cases. In January 2009, Anton and Dolan filed a lawsuit on behalf of 47 new clients, Schroeder et al. v. PG&E, et al., Los Angeles Superior Court case No. 406019 (Schroeder). Less than a month after Schroeder was filed, Dolan informed Anton that he was being suspended from the practice of law for 187 days. Anton contends Dolan basically abandoned the clients in Schroeder and, as a result, the plaintiffs fired Dolan part-way through the case. Anton further contends he invested significant time and resources in Schroeder because of PG&E’s defense posture and the claims asserted were more difficult than the Adams Cases due to statute of limitations questions and difficulties in establishing exposure and causation. In November 2011, Schroeder settled.
Litigation Between Anton and Dolan
Prior to the settlement of Schroeder, a dispute arose between Anton and Dolan over the allocation of the contingency fees and the reimbursement of expenses from the Adams Cases. In July 2011, Dolan filed a lawsuit against Anton in Kern County Superior Court, Dolan v. Anton. Dolan alleged causes of action for embezzlement, breach of fiduciary duty, constructive trust, negligence, breach of contract, breach of the covenant of good faith and fair dealing, and fraudulent conveyance. Dolan’s claims for embezzlement and breach of fiduciary duty included allegations that Anton’s acts and omissions were done with the intent of injuring Dolan or depriving Dolan of his legal rights and such “conduct was willful, oppressive, fraudulent, and malicious.” Based on these allegations, Dolan alleged Anton was liable for punitive damages. Dolan also requested compensatory and consequential damages in an amount subject to proof at trial, but no less than $650,000, and sought an accounting of the attorney fees earned and the expenses paid in the Adams Cases. For purposes of this opinion, we sometimes refer to Dolan v. Anton as the Adams Action.
After the settlement of Schroeder, Dolan filed a lien based on quantum meruit against all of the fees and costs owed to Anton under that settlement. In June 2012, Anton filed an action against Dolan in Los Angeles County Superior Court for declaratory relief, breach of contract, and breach of fiduciary duty to resolve the issues created by Dolan’s lien. The Anton v. Dolan action was transferred to Kern County Superior Court.
Anton Hires Defendants
In August 2012, Anton retained defendant Barbich Hooper King Dill Hoffman Accountancy Corporation, a professional corporation, and defendant Geoffrey King, a certified public accountant and a principal of Barbich Hooper King Dill Hoffman Accountancy Corporation. King and the corporation are referred to collectively as Defendants. Anton retained Defendants to act as accounting experts in the Adams Action and determine how much money was due Dolan.
Anton contends Defendants were given complete access to all of the physical and electronic books and records relevant to determining the fees received and the costs paid in the Adams Action. Anton contends Defendants failed to perform a full and complete audit and, as a result, the accounting services provided were inaccurate and incomplete. Those accounting services included King’s advice to Anton that Dolan owed Anton money. Anton relied on King’s opinion in formulating his defense strategy in the Adams Action and in testifying that he did not owe Dolan money.
Anton contends that throughout discovery in the Adams Action, King changed Defendants’ report several times but always maintained Dolan owed Anton money. Anton contends that during the trial of the Adams Action, King changed the report again and, consequently, the trial court adjourned the trial and ordered King to be made available for deposition. Anton asserts that he and his attorney (1) examined Defendants’ report in light of learning at King’s deposition that Dolan’s contributions to costs and expenses were not included in the report and (2) concluded it was likely that Anton did owe Dolan something.
Settlement with Dolan
Faced with potential liability for a high damage award in the Adams Action and the possibility of being sanctioned by the California State Bar if Dolan prevailed on his breach of fiduciary duty allegations, Anton settled with Dolan. The settlement included dismissal of Anton v. Dolan. The confidential settlement agreement was filed under seal in the trial court. Anton’s response to Defendants’ separate statement of undisputed facts asserts “Dolan was paid seven figures, all because Defendants’ conduct left Anton with no choice but to pay it or risk losing everything.” Anton asserts that if Defendants had done their job correctly, he would have settled the Adams Action “without attempting to defend it and [by] paying Dolan what was owed” and he would have litigated Anton v. Dolan to resolve the dispute over fees earned in Schroeder. Instead, Dolan demanded a global settlement—that is, a settlement resolving both the Adams Action and Anton v. Dolan, with Anton dismissing his claims against Dolan.
PROCEEDINGS
In January 2014, Anton filed a complaint against Defendants alleging causes of action for accounting malpractice, breach of fiduciary duty, and negligent misrepresentation. Anton alleged (1) Defendants failed to exercise reasonable care and skill in providing advice to him by failing to undertake and complete a full audit and neglecting to review all the relevant documents; (2) Anton extensively relied on Defendants’ negligent conclusion that he did not owe Dolan money; (3) as a result of this reliance, Anton “unwittingly testified in his deposition and [at] trial … in direct contradiction to what had actually occurred”; (4) the action taken by Anton in reliance of Defendants’ reports increased Anton’s potential liability for a high damage award in the Adams Action and the possibility of being sanctioned by the California State Bar if Dolan prevailed on his fraud allegations; and (5) the increased exposure caused Anton to settle the Adams Action for more money than he would have paid without the negligence and also caused him to dismiss Anton v. Dolan. Anton summarizes this chain of events by contending Defendants’ negligence forced him to make an unfavorable global settlement of the Adams Action and Anton v. Dolan. Defendants answered the complaint with a general denial.
In December 2014, Defendants filed a motion for summary judgment asserting Anton’s causes of action failed as a matter of law because Anton did not produce evidence “to support the essential elements of causation and damages” and, furthermore, was unable to prove with the requisite legal certainty that Defendants caused Anton’s alleged damages. Anton’s opposition papers admitted some of the facts asserted in Defendants’ separate statement, disputed other facts, and objected to others. Anton also asserted 89 additional undisputed material facts precluded summary judgment.
In December 2015, the trial court heard argument on the motion and took the matter under submission. In February 2016, the court issued a minute order setting forth its ruling on the motion and Defendants’ objections to Anton’s evidence. The minute order stated the motion was granted because Anton did not establish, with the requisite legal certainty, that he would have obtained a better outcome but for Defendants’ alleged acts and omissions. The minute order attached a six-page discussion of the bases for the court’s decision to grant summary judgment and also attached its rulings on Defendants’ objections. The discussion of the summary judgment stated Anton failed to meet his burden of raising a triable issue of fact as to the element of causation on any of his causes of action. It also stated that, as to the element of damages, Anton failed to establish appreciable and actual harm as a consequence of Defendants’ actions.
In March 2016, the trial court filed (1) an order granting defendant’s motion for summary judgment and (2) a judgment of dismissal. In May 2016, Anton timely appealed.
Defendants filed a memorandum of costs requesting $185,191.27, which included witness fees of $148,176.50 and deposition costs of $31,148.16. Anton filed a motion to tax costs, challenging the claims for witness fees and deposition costs.
In October 2016, the trial court filed a minute order denying Anton’s motion to tax costs, which included a five-page attachment setting forth the reasons for its decision. In November 2016, Anton filed a timely notice of appeal challenging the denial of his motion to tax costs. This court consolidated the two appeals.
DISCUSSION
I. BASIC LEGAL PRINCIPLES
A. Summary Judgment
A defendant asserting a lawsuit has no merit may move for summary judgment. (Code Civ. Proc., § 437c, subd. (a)(1).) Typically, a defendant demonstrates a cause of action has no merit by showing “that one or more elements of the cause of action … cannot be established, or that there is a complete defense to the cause of action.” (§ 437c, subd. (p)(2).)
The court shall grant a motion for summary judgment, “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (§ 437c, subd. (c).) To determine whether a triable issue of material fact exists, the court must consider all evidence set forth in the moving papers and all inferences reasonably deducible from the evidence. (Ibid.) “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.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).)
B. Standard of Review
When reviewing an order granting summary judgment, appellate courts conduct an independent review to determine whether an issue of material fact exists and whether the moving party was entitled to summary judgment as a matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) In conducting that review, we apply the same three-step analysis required of the trial court. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858 (Serri).) First, we identify the issues framed by the pleadings. (Ibid.) The causes of action set forth in the complaint, along with the principles of law defining those causes of action, identify the elements that a moving party defendant may attempt to demonstrate “cannot be established.” (§ 437c, subd. (p)(2).) Second, we determine whether the moving party’s showing has established facts justifying judgment in its favor. (Serri, supra, at p. 858.) Third, when the moving party has carried its initial burden, we address whether the opposing party has demonstrated the existence of a triable issue of material fact. (Ibid.)
An appellate court considers all the evidence set forth in the moving and opposition papers except evidence for which objections were made and sustained. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) The evidence is viewed “in a light favorable to plaintiff as the losing party.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) In other words, a losing plaintiff’s evidentiary submission is liberally construed, and the moving party’s showing is strictly scrutinized with any evidentiary doubts or ambiguities resolved in plaintiff’s favor. (Ibid.) In accordance with this principle, when conflicting inferences can be reasonably drawn from the evidence, a triable issue of fact is deemed to exist. (§ 437c, subd. (c).)
C. Anton’s Causes of Action
The first step of our review examines Anton’s complaint for the purpose of identifying his causes of action and their essential elements. Here, Anton’s complaint alleged causes of action for accounting malpractice, breach of fiduciary duty, and negligent misrepresentation. As background for our identification of the elements of these causes of action, we note that our Supreme Court has stated the generic elements of a tort claim are “wrongdoing, causation and harm.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.)
“ ‘The elements of a cause of action in tort 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.’ ” (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 833 (Mattco Forge) [accountant malpractice].)
The elements of a cause of action for breach of fiduciary duty are: (1) existence of a relationship giving rise to a fiduciary duty; (2) a breach of the fiduciary duty; and (3) damage proximately caused by the breach. (Wittenberg v. Bornstein (2020) 50 Cal.App.5th 303, 313, fn. 7.) The law imposes a variety of duties upon a fiduciary. The instant case involves the duty of a fiduciary to use reasonable care. (See CACI No. 4101 [“Failure to Use Reasonable Care—Essential Factual Elements”]; cf. CACI Nos. 4102 [breach of fiduciary’s duty of undivided loyalty], 4103 [breach of fiduciary’s duty of confidentiality].)
The elements of a cause of action for negligent misrepresentation are “ ‘(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.’ ” (Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1252.) The final two elements identify two causal links that must be established. “First, the plaintiff’s actual and justifiable reliance on the defendant’s misrepresentation must have caused [the plaintiff] to take a detrimental course of action. Second, the detrimental action taken by the plaintiff must have caused his alleged damage.” (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1062.)
The elements of causation and damages, which are essential to all three of Anton’s causes of action against Defendants, are addressed in Civil Code section 3333, which provides “the traditional tort recovery.” (Michelson v. Hamada (1994) 29 Cal.App.4th 1566, 1582 [damages for breach of fiduciary duty].) Under the statute, “the measure of damages” for tort claims “is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.” (Civ. Code, § 3333, italics added.) Based on this reference to “detriment proximately caused,” we next consider the principles defining proximate cause.
D. Proximate Cause
California’s version of proximate cause has two components. (State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 352 (Novoa).) The first component is called cause in fact, which also is referred to as direct or actual causation. (People v. Jones (2010) 187 Cal.App.4th 418, 424.) “ ‘An act is a cause in fact if it is a necessary antecedent of an event.’ ” (Ferguson v. Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037, 1045 (Ferguson) [litigation legal malpractice case].)
Traditionally, cause in fact is determined by applying the “but for” test. (People v. Holmberg (2011) 195 Cal.App.4th 1310, 1321.) This test means “that the harm or loss would not have occurred without the [professional’s] malpractice.” (Viner, supra, 30 Cal.4th at p. 1235 [legal malpractice in performing transactional work].) Another formulation of the “but for” test states that a plaintiff “was not harmed by [defendant’s negligent handling of a legal matter] if the same harm would have occurred anyway without [defendant’s negligent] conduct.” (CACI No. 601 [“Negligent Handling of Legal Matter”].) The concept of a cause in fact is quite broad—our Supreme Court has recognized that causes in fact may be traced back to the dawn of humanity. (Ferguson, supra, 30 Cal.4th at p. 1045.)
The second component of proximate cause is more closely associated with the modifier “proximate” and imposes additional limitations on liability that are not part of the requirement for causation in fact. (Novoa, supra, 61 Cal.4th at p. 353.) “ ‘These additional limitations are related not only to the degree of connection between the conduct and the injury, but also with public policy.’ [Citation.]” (Ferguson, supra, 30 Cal.4th at p. 1045.) In other words, the second component’s requirement that causes in fact also be “proximate” is concerned with the various considerations of policy that limit the defendant’s liability. (Ibid.) These legal limitations within the doctrine of proximate cause “operate to relieve the defendant whose conduct is a cause in fact of the injury, where it would be considered unjust to hold him or her legally responsible.” (6 Witkin, Summary of Cal. Law (11th ed. 2017) Torts, § 1335, p. 633 [proximate cause].)
The California Supreme Court has definitively adopted the substantial factor test for triers of fact to use in determining whether a wrongful act or omission proximately caused an injury. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968; Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1050–1053.) CACI No. 430, “Causation: Substantial Factor,” states: “A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor.” “[T]he ‘substantial factor’ test subsumes the ‘but for’ test” for causation in fact. (Mitchell, supra, at p. 1052; Viner, supra, 30 Cal.4th at p. 1239.)
“[P]roximate cause is ordinarily a question of fact for the jury.” (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 198.) “ ‘Nevertheless, where the facts are such that the only reasonable conclusion is an absence of causation, the question is one of law, not of fact.’ ” (Novoa, supra, 61 Cal.4th at p. 353.)
E. Method of Proving Proximate Cause
In Viner, supra, 30 Cal.4th 1232, the California Supreme Court granted review and “limited the issues to whether the plaintiff in a transactional legal malpractice action must prove that a more favorable result would have been obtained but for the alleged negligence.” (Id. at pp. 1238–1239.) The court concluded “that, just as in litigation malpractice actions, a plaintiff in a transactional malpractice action must show that but for the alleged malpractice, it is more likely than not that the plaintiff would have obtained a more favorable result.” (Id. at p. 1244.) Here, the parties agree Anton must satisfy the “but for” test to establish causation in fact.
In Viner, the Supreme Court also discussed how a plaintiff goes about proving causation in a malpractice action:
“The requirement that the plaintiff prove causation should not be confused with the method or means of doing so. Phrases such as ‘trial within a trial,’ ‘case within a case,’ ‘no deal’ scenario, and ‘better deal’ scenario described methods of proving causation, not the causation requirement itself of the test for determining whether causation has been established.” (Viner, supra, 30 Cal.4th at p. 1240, fn. 4.)
The trial within a trial method was discussed at length in Mattco Forge and the court concluded it applied to a claim of professional malpractice brought against accountants hired to assist a party in preparing and presenting a legal case. (Mattco Forge, supra, 52 Cal.App.4th at pp. 831–844.) In Mattco Forge, a client sued an accounting firm for negligently providing accounting litigation support service. (Id. at p. 837.) The court concluded the trial within a trial method applied to this type of claim against the accounting firm and, thus, the trial within a trial method was not limited to legal malpractice actions. (Ibid.)
In this appeal, we adopt the “case within a case” phrase to avoid the implication that Anton was required to establish how the underlying lawsuits would have been resolved in a trial. In Viner, the court identified two ways a more favorable “result” in the underlying litigation might be obtained—either “a more favorable judgment or settlement in the action in which the malpractice allegedly occurred.” (Viner, supra, 30 Cal.4th at p. 1241, italics added.) These two ways also were acknowledged by the court in Orrick Herrington & Sutcliffe v. Superior Court (2003) 107 Cal.App.4th 1052. There, the court stated that when the case within a case method is applied in a malpractice action involving the settlement of the underlying litigation, “the plaintiff must prove his opponent in the underlying litigation would have settled for less, or that following a trial, plaintiff would have obtained a judgment more favorable than the settlement.” (Id. at p. 1054.)
In Viner, the Supreme Court provided additional guidance about how the “but for” causation test for malpractice actions relates to the case within a case method of proof:
“Determining causation always requires evaluation of hypothetical situations concerning what might have happened, but did not. In both litigation and transactional malpractice cases, the crucial causation inquiry is what would have happened if the defendant attorney had not been negligent. This is so because the very idea of causation necessarily involves comparing historical events to a hypothetical alternative.” (Viner, supra, 30 Cal.4th at p. 1242.)
In the instant case, the relevant “historical events” are the settlement terms that resolved the two underlying lawsuits between Anton and Dolan. Describing the “hypothetical alternative” is slightly more complicated because of the two underlying lawsuits allegedly affected by the malpractice. Determining whether the hypothetical alternative would have been a more favorable result requires the consideration of the combined net outcome of the two underlying lawsuits. For example, Anton might have been able to establish the Adams Action would have been settled for the same money and Anton v. Dolan would have gone to trial and he would have obtained a favorable judgment. In such a scenario, Anton’s net outcome overall would have been more favorable.
II. DAMAGES AND INCREASED EXPOSURE TO SUBSTANTIAL DAMAGE AWARD AND SANCTIONS
A. Contentions
1. Anton’s View of the Law
Anton contends that the controlling principle of law is set forth in Parichan, supra, 84 Cal.App.4th 702. That principle, as defined by Anton, states that a professional causes harm, and is liable, when his negligent advice or service exposes his client to monetary liability or sanctions based on allegations of intentional misconduct. Anton contends this principle is good law because the high court discussed Parichan “at length and expressly limited its disapproval of CSAA ‘solely to the extent that it is inconsistent with [its] decision.’ (Viner[, supra, 30 Cal.4th] at p. 1243–1243 & fn. 5[.)]”
Based on his interpretation of Parichan, Anton contends causation does not depend on the outcome of the underlying litigation, only upon whether Defendants’ negligence increased Anton’s risk of liability for a bad faith claim by Dolan against him. Rephrasing this contention, Anton argues Defendants’ negligence is a cause in fact of harm if Defendants played a role in the events and circumstances that increased Anton’s risk of liability for Dolan’s bad faith claims. He asserts there are several scenarios under which a jury could reasonably find that Defendants’ negligence contributed to his predicament and his decision to settle with Dolan. The contribution of Defendants’ negligence, he argues, does not need to be the only, or even a major, factor in causing his harm. As to his own role in the chain of events leading to the alleged harm, Anton states that to demonstrate causation he must show he actually and justifiably relied on Defendants’ negligent advice in making decisions and taking the actions that exposed him to Dolan’s bad faith claim.
Anton contends he adequately established “the element of damages by proving [Defendants’] negligence increased his exposure to Dolan’s bad faith claim.” Under his view of the law, “what would have happened if the case had gone to a jury is not the issue.” Instead, “[t]he issue is whether settlement was reasonable.”
2. Defendants’ View of the Law
Defendants contend that “Anton’s reliance on [Parichan] is confusing, misguided and, ultimately, misleading.” Defendants argue Viner expressly held that the Parichan court’s analysis of causation was erroneous and Anton’s tortured efforts to revive Parichan’s flawed and discredited analysis is unavailing. Defendants’ contend Anton was required to produce evidence under the case within a case approach that but for their alleged negligence, Anton would have obtained a better result in the underlying litigation. Defendants contend Anton failed to produce such evidence and, as a result, summary judgment was inevitable.
B. Our Interpretation of Parichan and Viner
1. The Broad Issue
The parties’ disagreement about what principles were established in Parichan and whether a particular principle remains good law after the Supreme Court’s disapproval requires us to interpret the opinions issued in Parichan and Viner. The interpretation of those opinions presents pure questions of law that must be resolved before undertaking the second and third steps of the summary judgment analysis—steps that involve the consideration of evidence. The answers to the questions of law involving Parichan and Viner are significant to our subsequent analysis because those answers will contain the legal principles used to determine which facts are “material” for purposes of summary judgment and, thus, whether a triable issue of material fact exists. (§ 437c, subd. (c).)
2. The Underlying Personal Injury Action
In Parichan, an attorney was hired by an insurance company (CSAA) to represent its insured in a personal injury lawsuit arising out of an automobile accident. (Parichan, supra, 84 Cal.App.4th at p. 704.) The accident was clearly the fault of the insured driver. (Ibid.) As a result of the collision, the other driver and a five-year-old boy were injured. (Ibid.) A lawsuit was filed, the injured driver’s deposition taken, her medical records reviewed, and the injured driver’s claim was then settled. (Ibid.) The boy’s claim did not settle at that time. (Id. at p. 705.) He had developed serious behavioral problems and his attorney wanted to be sure the problems were not due to his head hitting the dashboard during the accident. (Ibid.) A few years later, the plaintiffs’ attorney submitted a section 998 offer to compromise the boy’s claim for $50,000, the per claim policy limit. (Parichan, supra, at p. 707.) The insurer’s ability to evaluate the settlement offer was adversely affected by the defense counsel’s failure to forward a doctor’s report provided by the plaintiff’s counsel that linked the boy’s psychological problems with the head trauma experienced during the accident. (Id. at pp. 706–707.)
Later, when the case was being prepared in earnest for trial, the retained experts had decidedly different opinions about whether the car accident had significantly contributed to the boy’s psychological problems. (Parichan, supra, 84 Cal.App.4th at pp. 707–708.) At that point, the defense counsel advised the insured driver that a policy limits offer had been made and rejected and that the driver was at risk for liability in excess of the policy. (Id. at p. 708.) The driver retained an attorney who wrote to CSAA asserting its rejection of the policy limits settlement may have been in bad faith. (Ibid.) CSAA consulted an expert on bad faith and was advised it had a substantial risk of exposure. (Ibid.) Before the trial of the boy’s claim, CSAA substituted in another law firm to handle the case. (Ibid.) After a lengthy mediation, the boy’s attorney made final demand for $850,000, which CSAA accepted and thereby avoided being later sued for first party bad faith by the driver it insured. (Ibid.)
3. The Legal Malpractice Action
After CSAA settled the boy’s personal injury claim, it sued defense counsel, contending he had been negligent in failing to forward the doctor’s report before the $50,000 offer to compromise expired. (Parichan, supra, 84 Cal.App.4th at p. 708.) CSAA contended this negligence caused it to reject the policy limits settlement demand and exposed it to bad faith liability. (Ibid.) This theory of causation linking the negligence to CSAA’s monetary damages is not especially complicated, but understanding the theory on which the case was tried is essential to comprehending the appellate court’s discussion in Parichan. In essence, CSAA alleged the negligence caused it to reject the more favorable outcome of a $50,000 settlement and subsequently caused it to accept the $850,000 settlement, which resulted in a direct loss of $800,000 and consequential damages that included increased attorney fees.
In defending the malpractice claim, the defendant attorney proposed jury instructions based on the case within a case methodology. (Parichan, supra, 84 Cal.App.4th at p. 709.) The proposal asked the jury to first determine whether the personal injury action would have resulted in a collectible judgment for more than the $50,000 policy limits. Next, the proposed instruction asked the jury to determine whether a bad faith lawsuit would have resulted in a judgment against CSAA for failing to settle within the policy limits and, if so, the amount of the judgment. (Id. at p. 709, fn. 1.) Thus, the defendant attorney argued CSAA must (1) prove the outcome of a hypothetical trial on the boy’s personal injury claim and the outcome of a subsequent hypothetical trial on the bad faith claim and (2) show the outcomes of the hypothetical trials would have resulted in CSAA paying more than the $50,000 policy limits. The trial court rejected the attorney’s proposed jury instructions.
Before the trial court in Parichan submitted the malpractice claim to the jury, it found as a matter of law that the attorney had been negligent in failing to promptly forward the doctor’s report to CSAA. (Parichan, supra, 84 Cal.App.4th at p. 710, fn. 2.) As a result, the court instructed the jury to decide “ ‘whether that failure, which was negligence, caused plaintiff to suffer damage, loss or harm and, if so, the amount of such damage loss or harm.’ ” (Id. at pp. 708, 710, fn. 2.) As to damages, the jury was instructed that one element CSAA sought to recover was the amount of the settlement less the sum of $50,000—the amount of the earlier settlement offer. (Id. at p. 710, fn. 2.) In addition, the jury was instructed that for CSAA “ ‘to recover all or any part of the amount paid in settlement, [CSAA] has the burden of proving, by a preponderance of the evidence, that a reasonably prudent insurance company in [CSAA’s] position … would have paid such amount in settlement.” (Ibid.) The court also provided the jury with a definition of a reasonably prudent insurance company along with extensive instructions on bad faith claims and the implied covenant of good faith and fair dealing. (Ibid.)
The special verdict form asked the jury (1) whether the attorney’s negligence in failing to promptly advise CSAA of the doctor’s report caused CSAA’s damages, (2) whether the attorney was negligent in other respects, (3) whether the other negligence caused damage, and (4) the total amount of damages caused by the attorney’s negligence. (Parichan, supra, 84 Cal.App.4th at p. 708.) The jury answered “yes” to the first question and found CSAA’s damages, including attorney fees, totaled $920,849.05. (Ibid.)
4. Appeal in the Malpractice Action
The attorney appealed the verdict and resulting judgment, arguing the trial court’s instructions were erroneous because the jury was not directed to use the case within a case methodology to evaluate causation and damages. (Parichan, supra, 84 Cal.App.4th at pp. 704, 709.) The attorney also argued the trial court abused its discretion in limiting the medical testimony about the causal link between the accident and the boy’s injury to deposition testimony. (Parichan, supra, 84 Cal.App.4th at p. 714, fn. 5.)
On appeal, the First District concluded the trial court properly rejected the jury instructions proposed by the attorney. (Parichan, supra, 84 Cal.App.4th at p. 709.) It also rejected the claim of evidentiary error, determining there was no abuse of discretion in limiting the medical testimony to depositions because the trial court “properly concluded that [the attorney] was not entitled to a separate trial within a trial of the [boy’s] claim.” (Id. at p. 714, fn. 5.)
Anton relies on the appellate court’s statements that (1) the attorney’s “negligence caused CSAA exposure to a potential bad faith lawsuit, exposure that would not have existed had [the attorney] forwarded the [doctor’s] report to CSAA”; (2) “the trial court in this case correctly concluded that … the injury to CSAA was its exposure to the potential bad faith lawsuit”; and (3) the “court, therefore, asked the jury to focus on whether the $850,000 paid by CSAA as an effort by CSAA to mitigate its damages caused by [the attorney’s] negligence was reasonable.” (Parichan, supra, 84 Cal.App.4th at pp. 712, 713.) The appellate court concluded: “The jury in the present case was, therefore, properly instructed to determine whether the settlement was reasonable in light of the circumstances known to CSAA at the time. Put the opposite way, in the unique circumstances of this case, a case-within-a-case instruction was not required.” (Id. at p. 714.) Consequently, the court affirmed the judgment. (Ibid.)
5. The Omission in Parichan
A careful examination of the First District’s analysis in Parichan reveals the court implicitly decided, or made an assumption about, a factual question involving causation. The court’s statement that the attorney’s “negligence caused CSAA exposure to a potential bad faith lawsuit, exposure that would not have existed had [the attorney] forwarded the [doctor’s] report to CSAA” (Parichan, supra, 84 Cal.App.4th at p. 712) does not explicitly identify another important prerequisite to the exposure to the bad faith claim—namely, CSAA’s decision to reject the policy limits settlement offer. By “important prerequisite” we mean a necessary link in the causal chain of events ending in CSAA’s monetary loss. CSAA’s rejection of the $50,000 settlement offer is an important prerequisite or necessary link because, if CSAA had accepted the $50,000 settlement offer despite not receiving the doctor’s report, it would not have been harmed by the attorney’s negligent failure to forward the report.
To counter the foregoing omission and set forth the foundation for our analysis of Parichan, we explicitly describe the sequence of linked events comprising CSAA’s theory of harm and resulting monetary damages. The first event was the attorney’s negligent act of “not forwarding the [doctor’s] report before the expiration of the section 998 demand.” (Parichan, supra, 84 Cal.App.4th at p. 708.) The second event, which CSAA alleged this negligent act caused, was CSAA’s rejection of “the policy limits settlement demand.” (Ibid.) The third event, which CSAA alleged was caused by its rejection of the settlement offer, was its exposure to bad faith liability. (Ibid.) The fourth event in CSAA’s theory of causation and harm was the $850,000 settlement of the boy’s personal injury claim, an event that occurred long after its rejection of the $50,000 offer to compromise. (Ibid.) To summarize, this series of events casually connected the attorney’s negligence to the event that quantified part of CSAA’s monetary damages, the settlement of the boy’s claims for $800,000 more than the earlier offer to compromise. This series of events also supported CSAA’s claim for consequential damages, which included the additional attorney fees incurred after its rejection of the $50,000 offer to compromise.
We conclude Parichan must be interpreted to account for (1) the events that link the defendant attorney’s negligent act to the main item of CSAA’s monetary damages and (2) the omission of one of those events from the appellate court’s discussion. Accordingly, for purposes of determining what principles Parichan established, we conclude CSAA proved that, but for the attorney’s negligence, it would have accepted the $50,000 settlement offer—a more favorable outcome than the $850,000 settlement actually achieved. Stated another way, Parichan should not be interpreted to mean that CSAA proved it was entitled to recover money damages simply by proving the third event in the causal chain—that is, its exposure to bad faith liability.
6. The Case Within a Case Method
With the foregoing in mind, we next consider Parichan’s discussion of the case within a case method. The appellate court stated: “One significant issue in this case is whether the jury should have been required to use what is referred to as the case-within-a-case methodology to establish causation and damages.” (Parichan, supra, 84 Cal.App.4th at p. 709.) As explained below, the court’s many references to the case within a case method or procedure should not be interpreted to mean (1) that there is only one version or variant of that method or (2) that the jury instruction proposed by the attorney defendant accurately portrayed the particular case within a case method described in Viner three years later.
A literal, detailed label for the method presented by the attorney in Parichan is the “trial-plus-bad-faith-trial-within-a-malpractice-trial” methodology. For purposes of our discussion here, we assume this specific version of the methodology would be limited to cases where the professional’s negligence affected the outcome of the primary litigation and exposed the client to a later first party bad faith lawsuit. Based on our evaluation of the trial-plus-bad-faith-trial-within-a-malpractice-trial methodology proposed by the attorney in Parichan, we conclude that methodology was flawed because it did not fit the facts of that case or the requirements identified by our Supreme Court in Viner.
First, this approach to causation and damages focuses on trials and ignores the alternate way malpractice plaintiffs can establish a better outcome—that is, a more favorable settlement. In Parichan, the hypothetical outcome of a more favorable settlement was proven by evidence of the $50,000 settlement offer. Thus, the proposed methodology’s focus on trials was off the mark.
Second, the approach requires the plaintiff to prove the outcome of two trials. Generally, descriptions of the case within a case method refer to the plaintiff proving the outcome of a single underlying case, not a series of cases.
Third, and perhaps most significantly, the instructions proposed by the defendant attorney in Parichan do not actually fulfill the requirements of the case within a case method defined by our Supreme Court in Viner. Under the Viner version of the case within a case method, “the crucial causation inquiry is what would have happened if the defendant attorney had not been negligent.” (Viner, supra, 30 Cal.4th at p. 1242.) This inquiry is crucial because causation is established by comparing that hypothetical outcome of what would have happened but for the negligence to historical events—that is, the actual outcome of the underlying case. (Ibid.) If the hypothetical outcome proven by the plaintiff is better than the actual outcome, then the comparison establishes the negligence caused the plaintiff to suffer damages. In contrast to the methodology described in Viner, the approach proposed by the attorney in Parichan compared (1) the combined outcome of two hypothetical trials with (2) a hypothetical settlement for policy limits. This comparison of hypothetical results is not the version of the case within a case methodology approved in Viner, which is a comparison of a hypothetical result to the actual outcome. Although not specifically articulated in Parichan, it appears the defendant attorney’s approach limited the role of the actual outcome to setting a cap on the amount of potential damages identified in the comparison of hypothetical outcomes. Consequently, when reviewing Parichan for the purpose of reconciling it with Viner, the First District’s statement that “a case-within-a-case instruction was not required” should be interpreted to mean the trials-within-a-case instruction proposed by the defendant attorney—a method different from the case within a case method described in Viner—was not required. (Parichan, supra, 84 Cal.App.4th at p. 714.)
Ultimately, it appears the outcome in Parichan is consistent with the principles established in Viner because the sequence of events alleged by CSAA in its theory of causation actually involved the comparison required by the case within a case method described in Viner. Based on CSAA’s theory of causation, the jury instructions set forth in footnote 2 of Parichan, supra, 84 Cal.App.4th at page 710, and the contents of the special verdict form, we conclude that the jury in Parichan made the Viner comparison in determining causation and damages despite the lack of an instruction explaining the case within a case method for determining causation and damages. First, it appears CSAA established what would have happened in the underlying personal injury case but for the attorney’s negligence by alleging and proving it would have accepted the policy limits settlement offer for $50,000. (Parichan, supra, 84 Cal.App.4th at p. 710, fn. 2.) Second, it appears the jury compared this hypothetical outcome of the underlying personal injury case to the actual outcome—the settlement for $850,000—when it awarded total damages of $920,849.05. (Id. at p. 708.) This comparison of the hypothetical, no-negligence outcome to the actual outcome is the comparison required by our Supreme Court. (See Viner, supra, 30 Cal.4th at p. 1242.) Therefore, we do not interpret Parichan as a case where damages were awarded and upheld based on a theory of causation different from the case within a case method as defined in Viner. Instead, it is a case where the circumstances were such that the jury was able to reach a correct result and the absence of an explicit instruction explaining the case within a case method was not reversible error.
7. Principles Established by Parichan and Viner
The foregoing analysis of Parichan and Viner leads us to conclude the following principles govern the proof of causation and damages in a malpractice action against a professional who rendered services related to the client’s pursuit or defense of litigation.
First, “a plaintiff in a [professional] malpractice action must show that but for the alleged malpractice, it is more likely than not that the plaintiff would have obtained a more favorable result.” (Viner, supra, 30 Cal.4th at p. 1244.) In other words, the but for test is the appropriate test for causation in fact and the applicable burden of proof is a preponderance of the evidence.
Second, the but for test for causation in fact requires a finding of “what would have happened if the defendant [professional] had not been negligent” and a comparison of that “hypothetical alternative” with “historical events”—that is, the actual outcome of the underlying litigation. (Viner, supra, 30 Cal.4th at p. 1242.)
Third, Parichan remains good law for the principle that in a “settle and sue” malpractice action, the plaintiff must prove that the settlement entered was reasonable. (Parichan, supra, 84 Cal.App.4th at p. 713.) Thus, in situations where the actual outcome of the underlying litigation is a settlement, the plaintiff is entitled to recover the difference between the hypothetical outcome proven by a preponderance of the evidence and the actual settlement only to the extent that the settlement was reasonable. (See Parichan, supra, 84 Cal.App.4th at p. 714 [jury was “properly instructed to determine whether the settlement was reasonable in light of the circumstances known to CSAA at the time”].) To illustrate this principle, suppose a client actually paid a $1.8 million settlement and proved a hypothetical judgment or settlement of $1 million would have been obtained without the professional’s negligence. Further suppose the trier of fact found the upper range of reasonable settlements was $1.5 million. In that situation, the client would recover $500,000 in damages and would not recover the last $300,000 actually paid to settle the litigation.
Fourth, the limitation on the recovery of damages to the reasonable portion of the actual settlement is required by the doctrine of mitigation of damages. (Parichan, supra, 84 Cal.App.4th at p. 713; see Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1066 [requirement that a plaintiff mitigate damages applies after a legal wrong had occurred and during the period that some of the damages might still be averted]; cf. CACI Nos. 358 [mitigation of damages, breach of contract], 3930 [mitigation of damages, personal injury].)
8. Principles Not Established
Contrary to Anton’s interpretation, we conclude Parichan does not establish the principle that a professional’s negligent advice or service causes a compensable loss if that advice or service exposes the client to a more extensive damages award and possible sanctions. In Parichan, the chain of linked events proven by CSAA to support its recovery of damages did not end with its exposure to a bad faith lawsuit. Instead, CSAA also alleged and proved (1) it would have settled the personal injury claim for $50,000 and (2) its exposure to the bad faith claim caused it to settle the personal injury claim for $850,000, an amount that was reasonable due to its potential liability for bad faith. Stated another way, simple exposure to a potential claim does not prove damages were caused. Subsequent events must be presented to show how that exposure adversely affected the actual results achieved.
Based on the foregoing, we reject Anton’s contentions about the controlling principles established by Parichan. First, Anton’s view that the causation of damages in this malpractice action does not depend on the outcome of the underlying litigation is not correct. Second, Anton’s contention that causation of damages can be proven by showing Defendants’ negligence increased his risk of liability on Dolan’s claims is not correct.
C. Defendants Carried Their Burden
1. Prima Facie Showing
Defendants, as the party moving for summary judgment, have the burden of persuasion that there is no triable issue of material fact and that they are entitled to judgment as a matter of law. (Aguilar, supra, 25 Cal.4th at p. 850; see § 437c, subd. (c).) Besides the burden of persuasion, Defendants also bore “an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar, supra, at p. 850.) If they carried their burden of production, the burden would shift to Anton to make a prima facie showing of the existence of a triable issue of material fact. (Ibid.)
A defendant moving for summary judgment against a plaintiff with the burden of proof at trial “must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not.” (Aguilar, supra, 25 Cal.4th at p. 851.) Such a defendant’s prima facie showing must be such that it would, if uncontradicted, entitle it to judgment as a matter of law. (Id. at p. 851.) In other words, “a moving defendant must present evidence which, if uncontradicted, would constitute a preponderance of evidence [i.e., show it is more likely than not] that an essential element of the plaintiff’s case cannot be established.” (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 879.) Thus, a defendant moving for summary judgment is not required to conclusively negate an element of the plaintiff’s cause of action. (Aguilar, supra, at p. 853.) “In other words, all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action.” (Ibid.)
2. Defendants’ Showing
Defendants argue they have shown Anton cannot establish the elements of causation and damages because Anton failed to present evidence that he would have obtained a better result but for Defendants’ alleged negligence. Anton, based on his erroneous interpretation of Parichan, contends “what would have happened if the case had gone to a jury is not the issue” because “[t]he issue is whether settlement was reasonable.”
Defendants rely on Union Bank v. Superior Court (1995) 31 Cal.App.4th 573 (Union Bank) for its conclusion that the 1992 and 1993 amendments to California summary judgment statute overruled case law that “bars a defendant from securing a summary judgment premised upon a plaintiff’s factually devoid interrogatory answers.” (Id. at p. 576.) In Union Bank, the court stated “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.” (Id. at p. 590; see Simmons v. Superior Court (2016) 7 Cal.App.5th 1113, 1124.)
Defendants’ special interrogatory No. 154 asked Anton to state all facts upon which Anton based his allegation “that ‘As a proximate result of the Defendants’ negligent conduct, [Anton has] suffered and continue[s] to suffer, damages from being forced into a tenuous settlement situation and damages associated with having to settle the unrelated case on terms that were otherwise unpalatable.’ ” Anton initially objected to the interrogatory and his second supplemental response stated:
“Responding party was involved in two distinct cases with the same party. The [Adams Action] (the case which King was retained to assist with) involved a detailed analysis of what money had been received and by which party. The Anton v Dolan case, involved a lien claim by Dolan and a simple quantum meruit analysis of what work was actually performed by Dolan. The documentation in the Anton v Dolan matter was fairly straight forward and because Dolan could not prove much of his work, Anton believed Dolan would not receive much in the way of attorney’s fees. Additionally, at least one of the PG[&]E clients was claiming that Dolan should get no attorneys’ fees because of his negligence and mishandling of the limited work he did.
“Because of the errors by King, Anton could not establish in [Adams Action] the amount of fees received by Anton or Dolan. Anton had testified repeatedly that he did not owe Dolan any money based upon the findings of King. When it was discovered that King had potentially made a grievous error in his calculations, Anton realized he had limited options. If he continued with the trial and King testified to his findings and the basis for his findings, the error would be pointed out by Dolan. Dolan would in turn use the error to claim that Anton had attempted to hide the truth because the error was based on information that King had at the outset. Dolan knew his case in Anton v Dolan was a weak case and in an effort to take advantage of the situation in [Adams Action], he demanded that the two cases be globally settled. Anton was forced to not only pay what Dolan was asking in [Adams Action] but also a much higher amount in Anton v Dolan than what would have been proven at trial.”
The first paragraph of this response provides background information about the underlying litigation and set forth Anton’s belief about what Dolan would receive for his work on Schroeder. Presumably, Anton referred to his belief to support his factual assertion that he actually relied on Defendants’ work. The second paragraph of the response provides a general description of why Anton settled with Dolan and sets forth Anton’s contention about the outcome of the underlying lawsuits—that is, (1) he paid Dolan what Dolan asked in Adams Action and (2) he paid Dolan more for his work on Schroeder than he would have if Anton v. Dolan had gone to trial.
Defendants’ special interrogatory No. 156 asked Anton to state all facts supporting the allegation in paragraph 30 of his complaint that if Defendants “ ‘had not taken the actions hereinbefore described, [Anton] would still have been in a better position to evaluate and resolve the matter short of litigation and would not have been forced to settle the unrelated action, jointly.’ ” Initially, Anton objected to this interrogatory on the grounds it sought information protected by the attorney-client privilege or work product doctrine, it was premature in violation of section 2034.230, and it sought expert information. Anton’s second supplemental response stated:
“Responding party believes that had King accurately accounted for the moneys earned and received by each of the parties, Anton would have offered the full amount owed to Dolan on the [Adams Action] matter only. The settlement could have been reached in November 2012. The settlement would not have been global and Anton would have been able to prove in Anton v. Dolan that Dolan did not perform the work necessary to earn the full amount of attorneys fees he was seeking. Additionally, Anton would not have incurred the attorneys fees and litigation cost had the matter been resolved in November.”
It appears one reason Anton’s interrogatory responses set forth few historical facts is his erroneous interpretation of Parichan. Our inquiry here is to determine whether a reasonable jury presented with the facts set forth in these interrogatory responses could find Defendants’ alleged negligence caused Anton to suffer damages. As described below, we conclude the responses leave a gap in the causal chain needed to link the alleged negligence to any damages. As a result, Defendants’ presentation of these interrogatory responses made a prima facie showing sufficient to carry their initial burden and shift the burden to Anton to show the existence of a triable issue of material fact. (See Union Bank, supra, 31 Cal.App.4th at p. 589.)
A plaintiff alleging professional malpractice in connection with services related to the plaintiff’s pursuit or defense of litigation must use the case within a case method to prove the elements of causation and damages. (Pt. I.E., ante.) That method involves a comparison between the actual outcome of the underlying litigation and the hypothetical outcome that would have been obtained but for the professional’s negligence. The actual outcome was obtained when Anton and Dolan settled both underlying lawsuits. The hypothetical outcome of the Adams Action described in Anton’s discovery response is a November 2012 settlement based on Anton offering the “full amount owed to Dolan.” Anton states this hypothetical settlement would not have been global, implying Anton v. Dolan would have gone to trial. Anton asserts that in the hypothetical trial of Anton v. Dolan he would have been able to prove Dolan did not perform the work necessary to earn the full amount of fees Dolan was seeking.
First, the facts offered to support the hypothetical November 2012 settlement of the Adams Action is merely Anton’s belief. We conclude Anton’s belief is an insufficient factual basis for a jury to find it is more likely than not that the Adams Action would have settled in November 2012. Furthermore, under the terms of this hypothetical settlement, Anton states he would have paid the “full amount owed to Dolan.” This “full amount” is a fact not identified in the discovery response by the statement of a dollar amount or another description. As a result, the facts provided are insufficient for a jury to complete the comparison between the actual outcome and the hypothetical outcome and make a finding of fact that the hypothetical outcome was a more favorable result.
Second, as to the hypothetical outcome of Anton v. Dolan, which apparently would have been resolved by a trial, Anton simply asserts that he would have been able to prove Dolan did not perform enough work to account for the full amount of fees Dolan was seeking for his work on Schroeder. This assertion does not constitute facts sufficient for a jury to determine by a preponderance of the evidence the judgment that would have been entered after the hypothetical trial of Anton v. Dolan. As a result, the comparison required by the case within a case method cannot be completed. It follows that Anton’s discovery responses lacked the facts necessary to establish the elements of causation and damages and, therefore, the trial court properly concluded Defendants carried their initial burden.
3. Defendants’ Failure to Submit Documents Produced by Anton
Anton asserts that Defendants’ moving papers did not include any of the documents Anton produced in discovery. Under Anton’s view of the procedural requirements governing summary judgment motions, “[w]hatever the documents showed is immaterial because [Defendants] did not produce them” and cannot meet their “burden to show that Anton does not have evidence to support his claims without producing the documents, a declaration or other evidence to demonstrate they are insufficient.”
Anton cites no statute, case law or other authority to support his contention that Defendants’ moving papers must include all the documents Anton produced in response to discovery. Furthermore, Anton presents no argument supporting why this court should adopt such a requirement. (See Cal. Rules of Court, rule. 8.204(a)(1)(B) [appellate briefs must “support each point by argument and, if possible, by citation of authority”].) We reject Anton’s contention. We conclude California law allows a moving party defendant to carry its initial burden of negating one or more elements of a cause of action by presenting “a plaintiff’s factually devoid interrogatory answers.” (Union Bank, supra, 31 Cal.App.4th at p. 576.)
4. Disclosure of Responsive Expert Evidence
Anton contends how and when he must disclose evidence from his expert is governed by section 2034.230 and, based on this provision, he objected to producing evidence from his expert prior to the exchange of expert information. In Anton’s view of applicable law, Defendants may not point to his not producing such information as evidence that he does not have it.
The only authority Anton cites to support his contention is section 2034.230, a provision that addresses the written “demand for an exchange of information concerning expert trial witnesses.” (§ 2034.230, subd. (a).) “The specified date of the exchange shall be 50 days before the initial trial date or 20 days after service of the demand, whichever is closer to the trial date, unless the court” orders otherwise. (§ 2034.230, subd. (b).) Nothing in section 2034.230 states how the exchange of expert witness information relates to, much less restricts, the ability of a party moving for summary judgment to make the required prima facie showing. Moreover, nothing in section 2034.230 states a party’s discovery responses may omit facts based on the theory that an expert witness subsequently will rely on those facts in forming an opinion.
Based on the contents of section 2034.230 and Anton’s failure to cite any other authority, we conclude a defendant moving for summary judgment may carry its initial burden even when the parties have not exchanged expert information and the plaintiff has objected to providing information prior to the statutory timetable for the exchange of expert information. Stated another way, Defendants carried their initial burden by presenting Anton’s interrogatory responses. Defendants’ showing is not countered or weakened by plaintiff’s objection. Anton’s position on this issue is not persuasive because, among other things, it contradicts the principle that “ ‘ “[w]hen a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” ’ ” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607.)
Despite Anton’s arguments about designating experts, we stand by our conclusion that Defendants carried their initial burden of negating one or more elements of a cause of action by presenting “plaintiff’s factually devoid interrogatory answers.” (Union Bank, supra, 31 Cal.App.4th at p. 576.) Thus, the burden shifted to Anton to come forward with evidence, which could include expert evidence, showing the existence of a triable issue of material fact. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 10.124, p. 10-52 [“declaration stating an expert’s opinion may be admissible to … defeat a summary judgment motion if the requirements for admissibility are established”].)
D. Anton Did Not Carry His Burden
1. Anton’s Contentions
When the moving party has carried its initial burden, courts proceed to the third step of the standard summary judgment analysis and determine whether the party opposing the motion “has demonstrated the existence of a triable issue of material fact.” (Serri, supra, 226 Cal.App.4th at p. 859.) In Part XI of his opening brief, Anton contends he met his burden of demonstrating there are triable issues of fact from which a jury could find that he paid more to resolve the underlying case because of Defendants’ negligence. The subheadings in that part identify six questions that Anton contends involved triable issues of material fact. First, did Anton rely on Defendants’ work or testimony as an expert witness? Second, would Anton’s risk of liability for bad faith have been as great if Defendants provided credible expert testimony that Anton did not owe Dolan? Third, could Anton have obtained a better result in the underlying case if he was not in a weak settlement position? Fourth, was the settlement Anton entered reasonable? Fifth, did Anton lose a valuable claim when he included Anton v. Dolan in the settlement? Sixth, were Defendants’ negligent?
2. Issues Considered
For purposes of this appeal, we assume a triable issue of material fact exists on certain questions that are not dispositive of this appeal. Those questions are (1) whether Defendants breached the standard of care—that is, were negligent; (2) whether Anton relied on Accountant’s negligent conduct; (3) whether Accountant’s negligence increased the risk of liability on Dolan’s bad faith claim; and (4) whether the settlement entered by Anton was reasonable, a question related to whether Anton properly mitigated the damages alleged. Having made these assumptions, we will address whether triable issues of fact exist as to a specific component of the case within a case method—that is, whether Anton would have obtained a more favorable outcome of the underlying litigation but for the alleged negligence. The underlying litigation involved two cases, Adams Action and Anton v. Dolan. Subheadings XI.C. and XI.E. of Anton’s opening brief address the outcome of the underlying cases by asking “Could Anton Have Obtained a Better Result in the Underlying Case If He Was Not in a Weak Settlement Position” and “Did Anton Lose a Valuable Claim When He Included Schroeder in the Settlement?”
3. Better Result in Adams Action
To avoid mischaracterizing Anton’s arguments, we quote all the text under subheading XI.C:
“The trial court stated that Anton established his concern about [Defendants’] changes but that Anton’s feelings were not a legally sufficient basis to establish that [Defendants’] changes could not be justified or explained to a jury. (8CT 2043) This statement embraces the problem but misses the point: ‘[Anton’s] “feeling” that the changes in [Defendants’] reports would affect [him] adversely before the jury’ is what matters. (8CT 2043) A jury must determine whether [Defendants’] negligence weakened Anton’s settlement position based upon Anton’s situation at the time he decided to settle.
“ ‘[M]y settlement position was greatly and adversely compromised because we relied extensively on [Defendants’] opinions and reports.’ (3CT 621)
“ ‘I was exposed to significant damages and punitive damages and risked disbarment as a result of a fraud verdict.’ (3CT 621)” (Italics added.)
In this argument, Anton’s argument quotes statements from his November 2015 declaration. For the reasons stated in our discussion of Parichan, we disagree with Anton’s contention that his feelings about the impact of the alleged negligence are what matters. More evidence is required before a trier of fact could reasonably determine Anton would have obtained a better outcome in the Adams Action but for the alleged negligence of Defendants.
An essential aspect of demonstrating a triable issue about whether a better outcome would have been obtained is identifying the type of better outcome—that is, a better settlement or a better judgment. Here, Anton’s arguments suggest he would have obtained more favorable settlement terms. Anton’s reference to his own beliefs about his exposure and the associated risks does not address the other side of the settlement—whether Dolan would have entered a settlement more favorable to Anton. The absence of evidence addressing what Dolan would have done is the critical omission that precludes Anton from showing a better settlement of the Adams Action.
The need for evidence of a better settlement is demonstrated by Marshak v. Ballesteros (1999) 72 Cal.App.4th 1514—a case in which a husband sued the attorney who handled his marriage dissolution. The husband alleged the attorney advised him to accept a settlement based on incorrect valuations of the family residence and his medical practice, which settlement overpaid his ex-wife and resulted in a $337,000 loss to him. (Id. at p. 1516.) The husband submitted his own declaration addressing the value of the family residence and other assets. (Id. at p. 1517.) The Second District concluded that, even if the husband were able to prove these values, “he would not prevail. For he must also prove that his ex-wife would have settled for less than she did, or that, following trial, a judge would have entered judgment more favorable than that to which he stipulated.” (Id. at p. 1519.) As a result, the court affirmed the summary judgment in favor of the attorney. (Ibid.)
Another case illustrating this point is Barnard v. Langer (2003) 109 Cal.App.4th 1453—a case in which a former client brought a legal malpractice action against the law firm that represented him in an inverse condemnation case. The client alleged the lawyers’ negligence forced him to settle with the city for an amount substantially less than what he was entitled to under the law. (Id. at p. 1458.) In Barnard, the court stated that in a malpractice action based on an unfavorable settlement, the client-plaintiff must establish “ ‘what would have been a reasonable settlement [without the negligence] and that such sums would have been agreed to and could have or would have been paid.’ ” (Id. at p. 1462, fn. 13; see Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 171 [in an action alleging an inadequate settlement, nothing in record proved the opposing party “would have paid a dollar more than it did”].)
In contrast to the foregoing cases, CSAA, the malpractice plaintiff in Parichan, proved the sum for which the other side would have settled by presenting the section 998 offer to compromise for $50,000. (Parichan, supra, 84 Cal.App.4th at p. 707.) In comparison, Anton has presented no direct evidence that Dolan would have entered a settlement more favorable to Anton.
Anton concedes the lack of direct evidence on this point and argues he “may use circumstantial evidence to prove that it is more likely than not that he would have obtained more favorable terms if he had not suddenly discovered in the middle of trial that [Defendants’] evidence was worthless and he had no defense to Dolan’s claim that he acted in bad faith.” In Viner, the Supreme Court stated that “[a]n express concession by the other parties to the negotiation that they would have accepted other … terms is not necessary” because “the plaintiff may use circumstantial evidence to satisfy his or her burden” of showing the other party would have given the plaintiff more favorable terms. (Viner, supra, 30 Cal.4th at pp. 1242–1243.) Consequently, the absence of direct evidence does not end our inquiry. We also consider whether Anton has provided circumstantial evidence that Dolan would have settled the Adams Action on terms more favorable to Anton.
We conclude the evidence provided by Anton, which addressed his perceptions of the risks and exposure, is not circumstantial evidence of what Dolan would have settled for in the absence of the alleged negligence. As a result, Anton has not presented circumstantial evidence from which a trier of fact could reasonably infer Dolan would have settled on terms more favorable to Anton.
4. Better Result in Anton v. Dolan
Anton also contends there is a triable issue of material fact about causation and damages because he is able to present sufficient evidence to prove he lost a valuable claim when he included Anton v. Dolan in the settlement. Again, we quote the entire text under this subheading of Anton’s opening brief:
“There is sufficient evidence from which a jury could find that Anton would have won a substantial and recoverable award in Schroeder. In his declaration, Anton explains at length how he had a strong claim in Schroeder because the case was highly complex and Dolan could not document his work. (3CT 622-626) He submitted a notice that Dolan had been suspended from practicing as a lawyer during the case. (4CT 944-945) Declarations from three of the clients in Schroeder explain why they chose to fire Dolan. (5CT 1262-1276)”
Thus, Anton’s theory of a more favorable outcome in Schroeder is based on the hypothetical result of taking that case to trial and obtaining a jury verdict. The underlying weakness in Anton’s theory is that he must establish that the overall outcome of the underlying cases would have been more favorable but for the alleged negligence of Defendants. To demonstrate what the overall outcome would have been, Anton must establish the hypothetical outcome of both cases, combine those hypothetical outcomes to get an overall result, and compare that overall result to the actual outcome of the settlement he reached with Dolan.
Because Anton has not presented sufficient evidence for a jury to determine a more favorable settlement would have been reached in the Adams Action, there is a gap in the evidence needed to demonstrate an overall more favorable outcome of the underlying litigation. As a result, Anton has not carried his burden.
III. OBJECTIONS TO EVIDENCE
Anton contends the trial court abused its discretion by sustaining Defendants’ objection in mass and excluding the majority of Anton’s evidence. To support the contention that the trial court summarily sustained Defendants’ objections to all of the evidence supporting Anton’s addition, Anton refers to the court’s February 25, 2016 minute order. The last sentence of the minute order states: “RULINGS ON OBJECTIONS WILL BE MAILED TO COUNSEL AS STATED ON THE ATTACHED CERTIFICATE OF MAILING.” The clerk’s transcript prepared in this appeal did not include the attachment.
This court granted a motion for judicial notice of documents filed in the superior court to resolve the issue of the missing attachment. Those documents included a declaration of Stephen J. Tulley, the attorney who acted as trial counsel for Defendants. Tulley stated that on February 25, 2016, he received a copy of the minute order and six-page decision on the motion for summary judgment from the superior court clerk via facsimile and he subsequently received by United States Mail the full copy of the minute order and attachments, including the rulings on Defendants’ evidentiary objections. The declaration attached a copy of the rulings on the 199 evidentiary objections, which consisted of approximately 80 pages. The objections were organized into three columns. The left-hand column identified the evidence to which the object was being made. The middle column set forth the grounds for the objection. The right-hand column was reserved for the trial courts’ ruling on the objection. For objection No. 110 through the last objection, the column for the ruling included the lines “Sustained: ____” and “Overruled: ____.” When an objection was sustained or overruled in full, the trial court checked the appropriate line. When an objection was sustained in part, the trial court (1) handwrote “as to strike out” on the line following “Sustained”; (2) drew a line through the objectionable text appearing in the left-hand column; and (3) handwrote “as to rest” on the line following “Overruled.” In our view, the rulings partially sustaining some of the objections thoroughly demonstrate the experienced superior court judge conscientiously considered and decided the 199 objections presented. Thus, the trial court’s handling of the evidentiary objections does not constitute an abuse of discretion. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 10.301.1, pp. 10-137 to 10-138 [“abuse of discretion for the trial court to issue a blanket ruling on evidentiary objections; the court must rule on each material objection individually”]; § 437c. subd. (q).)
Anton’s reply brief (1) noted this court deferred ruling on Defendants’ request for judicial notice of documents filed in the trial court, including Tulley’s declaration with a copy of the trial court’s evidentiary rulings attached, and (2) requested leave from the court to prepare a supplemental brief solely on the evidentiary issues. This court’s routine order deferring a ruling on a request for judicial notice pending consideration of the merits does not contemplate a subsequent round of briefing in the event the request is granted. Rather, the appellate briefing following such a request for judicial notice—particularly, an unopposed request—should assume the request will be granted and address the related issues. Accordingly, we have not granted Anton’s request to file supplemental briefing.
IV. COSTS AND EXPERT WITNESS FEES
A. Background
In May 2016, Defendants filed a memorandum of costs. Item 8.b. of the memorandum named eight persons as expert witnesses and claimed a total of $149,106.50 in expert witness fees. One of the expert witnesses listed was John C. Hall, who had been paid $500 per hour for 62 hours of work.
In June 2016, Anton filed a motion to tax costs. Anton’s motion asserted (1) Hall was not qualified to testify as an expert witness and, therefore, Defendants were entitled only to ordinary witness fees and (2) any contribution Hall made to Defendants’ trial preparation as an expert was unnecessary and the fees claimed were unreasonable.
Defendants opposed the motion to tax costs and supported the opposition with a declaration from Hall. Hall’s declaration stated (1) he represented Dolan in the Adams Action, (2) Anton had been represented by Oliver Wanger in that matter, (3) Anton designated Wanger as an expert witness as to legal issues including (a) the proper method for calculating any fees owed to Dolan for his work on Schroeder and (b) the appropriate hourly rate for Dolan’s work, and (4) Defendants designated him as an expert to rebut Wanger’s expert testimony.
Defendants also asserted Anton’s motion failed to disclose the fact that Anton had retained Wanger, the attorney who represented Anton in the Adams Action, to provide expert testimony about the value of Dolan’s work. Defendants contend Hall was retained to testify on precisely the same issues that Anton had retained Wanger to address and Defendants intended to use Hall’s testimony to rebut Wanger’s opinion.
After a hearing, the trial court issued an order denying Anton’s motion to tax costs. Based on Hall’s declaration, the supplemental expert witness designation of Defendants that identified Hall as an expert witness, and Hall’s deposition, the trial court concluded Hall’s “opinion was being offered to rebut attorney Wanger’s opinion and to account for division of fees pursuant to the contractual agreements between Dolan and Anton in the underlying cases. Anton presents no evidence that Hall was not qualified to offer such an opinion. As such, Anton fails to support that Hall was not a proper expert or that his opinion was unnecessary.” In addition, the trial court determined Anton’s claim that Hall’s fees and time spent were unnecessary and unreasonable were not supported by any evidence. In sum, the trial court determined Anton failed to meet his burden of showing Hall was not a proper expert witness and Hall’s fees and time spent were not reasonable or necessary.
B. Contentions and Applicable Law
In his appellant’s opening brief, Anton included a heading stating: “THE ORDER GRANTING RESPONDENTS’ MOTION TO TAX COSTS SHOULD BE REVERSED.” This heading contains two mistakes. First, the motion to tax costs was denied, not granted. Second, respondents (i.e., Defendants) did not file the motion. Instead, it was filed by Anton, the appellant in this matter.
Anton contends the costs awarded must be reasonable and necessary to the conduct of the litigation, rather than merely beneficial. This is an accurate statement of California law because section 1033.5 sets out the allowable items of costs and also provides that “[a]llowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation … [¶] … [and] shall be reasonable in amount.” (§ 1033.5, subd. (c)(2) & (3).)
Anton further contends that once he “meets his burden to show that the costs were unreasonable or unnecessary, the burden shifts to [Defendants].” Anton states that the question of reasonableness and necessity are questions of fact for the trial court and its decision is reviewed for an abuse of discretion. Anton has accurately described California law.
Whether an item listed on the cost bill is reasonable in amount and reasonably necessary to the litigation are questions of fact to be decided by the trial court, and the trial court’s decision is reviewed for an abuse of discretion. (Berkeley Cement, Inc. v. Regents of University of California (2019) 30 Cal.App.5th 1133, 1139, 1140; see Howard v. American National Fire Ins. Co. (2010) 187 Cal.App.4th 498, 541 [trial court has broad discretion to determine what costs were reasonably necessary to the conduct of the litigation and whether they were reasonable in amount].) The abuse of discretion standard calls for varying degrees of deference, depending on the particular aspect of the trial court’s ruling under review. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711.) For instance, generally a “trial court’s findings of fact are reviewed for substantial evidence .…” (Ibid.) However, when a trial court determines the party with the burden of proof failed to carry that burden, “ ‘it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.’ ” (Valero v. Board of Retirement of Tulare County Employees’ Assn. (2012) 205 Cal.App.4th 960, 965.) Instead, where the issue on appeal turns on a failure of proof in the trial court, “ ‘the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law.’ ” (Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838.) Under the finding-compelled-as-a-matter-of-law standard, the factual finding sought by the appellant is compelled only if “ ‘the appellant’s evidence was (1) “uncontradicted and unimpeached” and (2) “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.” [Citation.]’ ” (Ibid.)
C. Anton’s Evidence
Based on the statement in the trial court’s order that Anton failed to carry his burden to showing that the expert fees claimed for Hall were unreasonable and unnecessary, we apply the finding-compelled-as-a-matter-of-law standard to Anton’s claim of trial court error. Under this standard, Anton’s evidence must be both (1) uncontradicted and unimpeached and (2) of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.
The section of the appellant’s opening brief addressing the motion to tax costs includes only two cites to the appellate record. Both citations are to page six of Anton’s complaint, which described a deposition Hall took of King on a Saturday in the middle of the trial of the Adams Action. The facts set forth in Anton’s unverified accounting malpractice complaint are allegations, not evidence. Consequently, Anton’s reliance on his complaint does not present this court with evidence compelling us to find, as a matter of law, that the expert fees claimed for Hall were unnecessary or unreasonable.
Another weakness in Anton’s argument is its complete failure to address the trial court’s reasoning about Hall being designated as an expert on the same issues that Anton designated Wanger as an expert. Anton’s opening brief does not acknowledge Wanger was designated as an expert, identify the issues on which Wagner would have provided expert testimony, and explain why Hall could not provide expert testimony on the same issues. Similarly, Anton’s reply brief does not mention Wanger. Indeed, that brief contains no discussion of the costs issue.
Consequently, we conclude Anton has not affirmatively demonstrated the trial court committed prejudicial error in denying his motion to tax costs. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [appellant has burden of affirmatively demonstrating prejudicial error].) Thus, the order denying Anton’s motion will be upheld.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
FRANSON, J.
WE CONCUR:
DETJEN, Acting P.J.
PEÑA, J.
Link to this page