17-CIV-00329 THE BANKRUPTCY ESTATE OF KASSANDRA MARIE HOELSCHER VS. SAFECO INSURANCE COMPANY OF AMERICA, ET AL.

THE BANKRUPTCY ESTATE OF KASSANDRA MARIE HOELSCHER SAFECO INSURANCE COMPANY OF AMERICA
JAMES R. DONAHUE

FRANK FALZETTA

JAMES D. BIERNAT’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION TENTATIVE RULING:

Plaintiff’s Opposition argues that Defendant’s motion is procedurally defective because it seeks to adjudicate issues that do not dispose of an entire cause of action. However, when a single “cause of action” is based on several alleged breaches of duty, each breach may be summarily adjudicated, even though the motion fails to dispose of all claims of breaches. For summary adjudication purposes, separate wrongful acts may give rise to separate causes of action. Whether they are pleaded in the same or single counts is not determinative. (Lilienthal & Fowler v. Superior Court (1993) 12 Cal. App. 4th 1848, 185354.) In the context of legal malpractice, one of several unrelated acts of legal malpractice that were alleged in a single cause of action can be summarily adjudicated. (Id. at 185455.) For these reasons, the Court rules on all of Defendant’s motion.

I. Motion for Summary Judgment

The motion for summary judgment is denied.

II. Motion for Summary Adjudication of Issues

A. Issue 1 – Standing

The motion is DENIED. Legal malpractice claims cannot be assigned. Here, however, Hoelscher never assigned her legal malpractice claim. The purported claim became property of the Bankruptcy Estate by operation of law. As TRUSTEE of the bankruptcy estate, Plaintiff TRUSTEE has standing to prosecute the malpractice claim, which is property of the estate.

The case of Baum v. Duckor, Spradling & Metzger (1999) 72 Cal. App. 4th 54, 69, cited by Defendant, is inapplicable. The Court in Baum stated that merely changing the plaintiff’s designation from “assignee” to “special representative” was putting form over substance, since the fact remained that the claim had been assigned to the plaintiff, regardless of what the plaintiff called itself. Here, no assignment has occurred.

B. Issues 2, 3, 4, 9, and 10.

The motion is DENIED as to Issues 2, 3, 4, 9, and 10. Defendant fails to meet his moving burden of showing that Plaintiff cannot establish that Hoelscher would have obtained a better result if Defendant BIERNAT had agreed to cooperate with Bray in blaming the school district and county.

The cooperation proposal is in a letter from Bray’s attorney Buccola, date July 7, 2014. (Moving Ex. C.) The proposal does not set forth any firm promise to not pursue Hoelscher beyond the insurance policy. Mr. Buccola states only that “they will have no desire” to collect beyond the policy limits, that “I would push my clients extremely hard to abide by their stated intentions,” and “I’m certain they will follow through.” The letter does not contain a promise to do or not do anything. Regardless, the motion should be denied.

It is Defendant BIERNAT who has the initial burden to show that a claim has no merit or cannot be established. (Code of Civ. Proc. Sect. 437c, subd. (p)(2).) Whether the July 7, 2014, letter contained an enforceable promise or not, and even if no contractual offer existed for Defendant BIERNAT to accept, the allegation remains that the failure to cooperate caused Bray to pursue Hoelscher for amounts above the $100,000 policy limit. For summary judgment, it is Defendant BIERNAT’s burden to disprove it. He has not done so.

To disprove Plaintiff’s claim, Defendant must establish by undisputed facts that Bray would have chosen to execute on the full $4.8 million judgment against Hoelscher even if Defendant had agreed to Bray’s cooperation proposal. Defendant offers no evidence that Bray would have done so. Therefore, Defendant fails to show that Plaintiff cannot demonstrate that Hoelscher would have achieved a better result of Defendant had cooperated in attacking the School District and County.

C. Issues 5 and 12.
The motion is DENIED as to Issues 5 and 12.

Defendant offers no evidence to demonstrate that Plaintiff cannot establish that Hoelscher would have obtained a better result but for the alleged failure to prepare expert witnesses (Issue 5) or provide exculpatory evidence (Issue 12). Both issues are based on Material Facts 21 through 24. Those facts fail to show that Plaintiff cannot establish that Hoelscher would have obtained a better result if Defendant BIERNAT had prepared expert witnesses better or induced “exculpatory evidence.”

The most relevant fact is number 23: “TRUSTEE cannot identify any ‘exculpatory evidence’ Defendant BIERNAT could have, but failed to, introduce at trial.” Fact 23 cites Plaintiff TRUSTEE’s response to Interrogatory 58, which asked for an identification of all “exculpatory evidence” that should have been produced. Plaintiff’s response was merely a list of objections. Although Plaintiff did not provide a substantive answer, the failure to do so is insufficient to support summary judgment.

It is insufficient to show that the opposing party states that he presently has no supporting evidence. Rather, the standard for showing that a party has no evidence is that the party does not possess “and cannot reasonably obtain” the necessary evidence. (Aguilar v Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-55.) The defendant may meet its burden “through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” (Id. at 855), or through “factually devoid discovery responses” (Union Bank v Superior Court (1995) 31 Cal.App.4th 573, 590), such as answers to “legitimately founded state-all–facts interrogatories,” that would support a “well- founded conclusion” that the plaintiff cannot establish its case. (Hagen v Hickenbottom (1995) 41 Cal.App 4th 168, 187.

The evidence cited in support of Material Fact 23 shows that Plaintiff’s discovery responses do not identify any evidence. However, Material Fact 23 does not show that Plaintiff “cannot reasonably obtain the necessary evidence.” (Aguilar, supra, 25 Cal.4th at 854-55.) D. Issues 6 and 13.

The motion is DENIED as to Issues 6 and 13.

Defendant argues that Plaintiff TRUSTEE “presents no evidence to support” his claims (Moving P&A at 15:24). This argument is backwards, since the Plaintiff is not obligated to present evidence until trial. Defendant further argues that Plaintiff “cannot demonstrate” that any evidence could have reduced Bray’s damages (Id. at 16:7-8). The motion is supported by Material Facts 21 through 24, which do not show that Plaintiff “cannot demonstrate” the validity of his claim. See Aguilar v Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-55 (must show definitive absence of evidence and that Plaintiff “cannot reasonably obtain” necessary evidence).)

E. Issue 7 (failure to call witnesses)

The motion is DENIED as to Issue 7.

The motion argues that Plaintiff cannot establish that Hoelscher would have obtained a better result if Defendant had called witnesses Mary Kingdom, Jack Ross, and/or Doris Ross. The motion is supported by Material Facts 21 through 24. None of those facts addresses the effect (or non-effect) any of these three witnesses would have had on the outcome of the underlying case. The motion does not establish that calling these witnesses would not have affected the outcome of the Bray case.

F. Issue 8 (failure to appeal)

The motion is GRANTED as to Issue 8. As a matter of law, “an attorney cannot be held liable for failing to file an action prior to the expiration of the statute of limitations if he ceased to represent the client and was replaced by other counsel before the statute ran on the client’s action.” (Steketee v. Lintz, Williams & Rothberg (1985) 38 Cal. 3d 46, 57.)

Issue 8 is based on Material Facts 25 through 27, all of which are undisputed. Since Defendant BIERNAT withdrew nearly a month before the appeal deadline (Facts 25 & 26), and Hoelscher was represented by a different attorney up to the deadline, Defendant BIERNAT cannot be liable for any damage resulting in a failure to file an appeal.

G. Issue 11 (failure to request jury instruction)

The motion is DENIED as to Issue 11. The allegation of failure to request a jury instruction is based on CACI 452. (TRUSTEE’s Response to Interrogatories 90, 91, 92, 93.) The jury instruction is pertains to a defendant’s acts in the context of a sudden emergency. CACI 452 requires a defendant to prove that (1) she did not cause the emergency, and (2) she acted as a reasonably careful person would have under emergency circumstances.

Defendant argues that the evidence showed that Hoelscher encountered an icy roadway near the bus stop. This evidence does not show that Hoelscher did not cause the emergency, because it does not show what the emergency was. It is unclear whether the “emergency,” for purposes of the jury instruction, was the existence of an icy road (not created by Hoelscher) or that Hoelscher’ vehicle was travelling too fast for her to react to the icy road (emergency possibly created by Hoelscher).

Defendant further argues that Hoelscher did not testify about whether she made a decision between available options, but stated that she tried but was unable to regain control of her vehicle prior to impact. The Court is unable to evaluate this argument, because Defendant cites to Exhibit W, which is a 60-page excerpt from the Bray trial transcript, without specifying any page or line where the evidence is hidden.

The motion fails to demonstrate that the jury instruction was inapplicable.

H. Issues 14 and 15.

The motion is DENIED as to Issues 14 and 15. As with Issues 5, 6, 12, and 13 above, the motion argues that Plaintiff has no evidence. (See Plaintiff’s Responses to Interrogatories 43, 82, and 113 (“Plaintiff has no specific facts or documents at this juncture to substantiate these allegations”). However, the supporting evidence for Issues 14 and 15 fails to demonstrate that Plaintiff “cannot reasonably obtain the necessary evidence.” (Aguilar, supra, 25 Cal.4th at 854-55.)

III. Conclusion If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Plaintiff Trustee of the Bankruptcy Estate of Hoelscher shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.