*1 Dist., First Twо. Aug. A092345. Div. 2001.] [No. al., et
PAT Plaintiffs and v. Appellants, LOMBARDO HUYSENTRUYT, Defendant and Respondent. KURT D.
Counsel Hanson, Marcus, Baer, Vlahos & David Bridgett, W. Andrew G. Rudy, and Giacomini S. Anne Johnson for and Plaintiffs Appellants.
Drath, Clifford, Z. John M. Drath and Hagen, Ray Wennerholm & Murphy, Bacerdo for Defendant and Respondent.
Opinion Attorney Kurt KLINE, D. Paul J. Winters represented P. Huysentruyt J. he established to make the latter to amend a trust had attempted when The amendment was ruled ineffective by its beneficiaries. for court. sued Subsequently, appellants Huysentruyt malpractice. now of nonsuit Huysentruyt, court’s They grant superior court’s finding that the erred superior contending their causing damages. Ap- ruling superseded Huysentruyt’s negligence file failing timely further sanctions against respondent pellants request his brief We reverse. appeal. and Facts
Statement Case trust, as cotrustees naming In Paul established May Winters Fellman, had married. Winters was himself and whom he Regina recently that Fellman The trust if provided old Fellman nearly years Winters, all the assets be Winters’s death trust predeceased upon Diane Mirviss. to Fellman’s adult from a daughter marriage, distributed prior amend trust. Winters reserved the to terminate or right *5 and with dehydra- In late Winters was diagnosed May hospitalized tion, thereafter, Fellman and dementia. Soon Alzheimer-type renal failure estate, of Winters’s and person requesting conservatorship petitioned to restrict Winters’s to Mirviss Winters as cotrustee and orders have replace The court to or amend the trust without court prior approval. revoke power Fellman as conservator with orders and subsequently replaced these granted an The court entered order which conservator Barbara deVries. professional shall of the conservatee these “During pendency proceedings, provided: Trust, The Paul J. Winters either to amend or to revoke the power 23, 1995, of this Court.” without the approval U/T/A dated June prior died Mirviss Accordingly, Fellman of colon cancer. On August telling the trust. had been trustee and of Winters beneficiary became the sole his and she sought court-appointed he wanted to trust change deVries that the appointment. for him. lawyer Respondent accepted Winters was on 1997. met with Winters September Respondent act as successor and trustee he did Mirviss to “adamant” that not want his trust or benefit from his estate and remained adamant on this until point he had death. Winters was a convalescent aware respondent hospital; condition released two before and had a heart days been from the hospital told understood to be life Winters threatening. Respondent about decisions on his estate urgency” making there was “some sense to of the order Winters’s restricting power was aware plan. Respondent of the case file and had not seen amend trust from his review previously the court an order like it. He from the order that would prefer understood a trust be made to the court for to amend before authority application executed, to he felt the order was as although ambiguous amendment court be before an amendment was signed whether would required and he did not think the court “refuse to into the circum- inquire stances of his the trust amendment to signing obtaining prior ap- order John had also never seen an like proval.” Appellants’ expert, Hartog, this and characterized it as and “ambiguous.” “unique” Respondent’s expert, Barbara had not seen an order like it either and found it “confus- Jagiello, but not see in the to ing,” did order indicate the court would not anything consider the of a validity trust after the trustor’s death. testamentary Respon- Friedman, dent’s other Bruce found the order expert, “astonishing.” met with Winters on 25 and then on October Respondent again September time, this During Winters was uncertain how he wanted to dispose friends, of his estate. On October Winters asked to ask his Lombardo, John Hult and Pat to call about estate him his plan. Respondent made these calls on November 12. Hult “almost reported that Winters immediately” wanted lеave his estate to When appellants. next met with him a Winters November Winters showed names, with five four the ones Hult had piece paper matching provided but the fifth a Dr. Morabito and not Lombardo. Winters then indicated being $15,000 trustee, he wanted to Lombardo be give and have him and was not sure he wanted to Morabito. give anything suggested making Respondent deVries the trustee but Winters disagreed. *6 20, Gusher,
On November told the court John and investigator, respondent that he deVries Winters was to a decision on his estate thought coming plan. 24, On had had a heart deVries told that Winters respondent November incident and felt it to trust urgent was more the accomplish amendment, On the trust amendment. November respondent prepared Hult, for distribution the trust shares to John Pat assets providing equal Lombardo, Winters, (Butch) Albert and Maria and Mary Dorcy, Winters Winters, took it to but Winters was and refused to talk to him. angry returned to see Winters on December on which date Winters Respondent the amendment and notarizеd it. wanted to signed Respondent meet with Winters once more before court of the amend- seeking approval ment, both to be sure Winters remained consistent his choice of regarding trustee, beneficiaries and to resolve Winters as and to whom wanted planned him mid-December. meet died December with Winters on 1997. death, About a after a for month Winters’s filed petition of the trust amendment. Mirviss filed a to invalidate the approval petition 8, 1998, the amendment. order of court denied By April probate petition been for and Mirviss’s the amendment had approval granted petition, finding executed without the court court orders and prior approval required prior was therefore invalid and void. court’s decision Win- (Conservatorship Appellants appealed
ters, A082566), but Mirviss for 55 while the was appeal pending settled assets. The dismissed on trust was percent September fees, about to after received According appellants, deducting attorney they $380,000 $1,240,000 from estate. Winters’s
Meanwhile, 17, 1998, Lombardo, on Hult and Dorcy September filed the for for damages negligence against present complaint professional claimed that failed to take the respondent. Appellants steps to cause the trust amendment to become effective Winters’s necessary upon death to for court immediately receiving by failing apply approval upon amendment, instructions, to fail- Winters’s failing immediately prepare to the amendment to Winters for execution once it ing immediately present for after Winters was to court prepared, failing immediately apply approval for an order time to shortening executed amendment failing apply on an basis. A first emergency have the court consider petition Albert amended filed on December added appellants complaint and Maria as Winters Winters plaintiffs.
The matter came on for trial on 2000. A February jury empanelled limine, however, on 15. After motions in February considering parties’ that the court had the court came to the conclusion February that the amendment invalid because it was signed erred in trust ruling court, because a without According superior prior approval. to maintain its and constitu- validity court “is an order interpret required a reasonable court would have interpreted if tionality possible,” of Mr. order “in such a that it did not limit the way testamentary capacity “to at least the circum- hearing explore Winters” and would have held or after Win- amendment” either before surrounding stances proposed *7 conclusion, the court whether any negli- ters’s death. Given this questioned resulted in any damages, could be viewed as gence having by respondent mattered if had handled matters that it would have suggesting The court should have held a event. hearing any because the differently counsel’s argument as for rejected calling speculation сourt’s erroneous actionable could be because negligence proved a motion for foreseeable. ruling attorney responded Respondent’s order, nonsuit, The court’s filed on which the trial court granted. April determinations and as a matter of law: includes the following findings a “To maintain the and of the Order if validity constitutionality possible, reasonable court should the Order as not restricting have interpreted conservatee’s to amend his trust. . . . testamentary ability
“Had Defendant the amendment after its filed a for petition approval 5, 1997, (i.e., execution but before death December Paul Winters’ on Friday 8, 1997, 12, 1997), or between December December a Monday, Friday reasonable court should not held a on the before the hearing petition trustee, death because to the such a court should have notice required proper However, and there was insufficient time to do that. a reasonable court should have to be сonducted after Paul Winters’ death to granted hearing amendment, the circumstances whether explore surrounding proposed for of the amendment filed before petition or after Winters’ approval death. . . . in the
“Although the court denied Defend- Conservatorship proceeding ant’s of the Amendment without petition considering merits, Amendment on its a reasonable court should have granted hearing to at circumstances Amendment. least explore surrounding
“Since a reasonable should have considered the circumstances judge the Amendment after Defendant for its it is surrounding petitioned approval, that Paul died Winters before the Amendment was inconsequential brought to the court’s attention in the and there is no Conservatorship proceeding causal connection between the conduct of the Defendant and the Plaintiffs’ alleged damages.” entered on
Judgment was June and notice of entry judgment was served on June 26 and filed on June 2000. filеd a timely notice of August
Discussion I. that, “A defendant is entitled to a nonsuit if the trial court determines law, as a matter of the evidence is insufficient presented plaintiff *8 664 (1982) Corp. a to find in his favor. v. General Motors
permit jury (Campbell 891, 224, 112, P.2d 35 A.L.R.4th 32 Cal.3d 117-118 649 Cal.Rptr. [184 sufficient, 1036].) the court ‘In whether evidence determining plaintiff’s Instead, the evidence or consider the of witnesses. may weigh credibility most must be as true and evidence favorable plaintiff accepted must be The court must “to disregarded. give evidence conflicting entitled, . . . all the value to which is legally evidence plaintiff[’s] inference be drawn from the evidence which indulging every legitimate may ’ (Id. 118.). in at . . In reviewing grant favor.” plaintifffs] p. [f] nonsuit, of the evi we are same rule evaluation ‘guided by requiring (Carson Facilities dence in the most favorable to the v. light plaintiff.’ 136, 830, (1984) 36 Cal.3d 686 P.2d Co. 839 Development Cal.Rptr. [206 ‘ 656].) not sustain the “unless the evidence judgment We will interpreting most case and most the defendant strongly against favorably plaintiff’s and all inferences and doubts in favor of the plain resolving presumptions, ’ (Ibid., tiff a for the defendant is as a matter of law.” judgment required 587, (1959) 805].)” 588 P.2d Mason v. Peaslee 173 quoting Cal.App.2d [343 278, (1988) v. Grace Church 47 Cal.3d 291 (Nally Community Cal.Rptr. [253 97, 948].) P.2d “we will not consider any ground 763 Additionally, court, one which identifies the nonsuit not advanced in the trial except (1944) (Lawless an incurable defect. v. 24 Cal.2d 92-94 Calaway [147 604].)” (Loral (1985) 174 273 Moyes P.2d v. Corp. Cal.App.3d [219 836].) Cal.Rptr. court reviewing a nonsuit is after granted argument,
Where opening every true the facts asserted in the statement and indulges as accepts opening inference those facts v. Vacaville School (Hoff legitimate support. Unified 522].) P.2d (1998) Dist. Cal.4th 968 930 Cal.Rptr.2d [80 here, court true the facts stated in trial we as Similarly, accept (1995) 37 (See Inc. v. Bodge briefs and argument. Aspen Enterprises, stipulated plain- Cal.App.4th Cal.Rptr.2d [parties [44 763] to the motion for brief in tiff’s oral argument supplemental opposition statement].) serve as its nonsuit would opening erred in as a matter holding contend that the trial court ruling alleged neg that the court’s superseded respondent’s law probate court maintain that damages. They probate ligence causing appellants’ if it not reasonably cause only could constitute ruling superseding of fact for the jury. They and that was a foreseeability question foreseeable could not ruling supersede respon that the additionally argue to the the trust amendment deliver failing dent’s alleged negligence lifetime. trustee Winters’s during the critical issue the case differently, viewing characterizes
Respondent causation court’s but as whether ruling foreseeability not as *9 of law for the court on a which legal ruling question depended presented case the issue in the decide. threshold According malpractice respondent, the on the to amend a reasonable court should have ruled petition was how trust; as a of law and the trial court decided this issue correctly question the validity concluded the аmendment; court should have held a hearing probate the merits and since a reasonable court should have considered trust, caused the .to amend the no conduct of respondent’s of petition view, if the trust Stated in damages. differently, (as the order amendment was within the of requirements conservatorship not be viewed as having conduct could properly interpreted), respondent’s the amendment failed to caused if any damage; only comply appellants been the order should the of conduct have submitted question to the jury. not find it
It should be stated at the outset that we do necessary determine the trial court correct to find that the court’s whether probate erroneous, are on the trust amendment was or whether ruling appellants in a to maintain that the court’s order was actually presently position probate correct.1 As be the correct or will whether court was explained, probate incorreсt, the case and factual existed as to in questions liability present nonsuit was granted. improperly (1) the
“The elements of a cause of action for are legal malpractice (2) a act or or other basis for attorney-client omission; duty; negligent relationship causation; (3) (4) (Nichols (1993) Keller 15 v. damages. 1672, 601]; (1988) Lemkin 1682 see Cal.App.4th Cal.Rptr.2d [19 Sukoff v. 740, .)” 202 Hanna & Morton (Kurinij 744 v. Cal.App.3d Cal.Rptr. [249 42] “ (1997) 324].) 55 ‘Proof of legal 863 Cal.App.4th Cal.Rptr.2d [64 of of but also requires only negligence by lawyer malpractice proof causation, that, a trial a trial to for the lawyer’s negli within establish but the client would have in the action.’ gence, underlying prevailed [Cita (Id. 864.) at p. tions.]” or actual cause: Was the One of causation is cause fact aspect ” “
defendant’s conduct ‘a substantial factor in about bringing injury.’ (Mitchell (1991) 54 Cal.3d 819 v. 1049 Cal.Rptr.2d [1 Gonzales 872].) P.2d The other is or cause. legal proximate “ ‘ factor” in cause” exists if the actor’s conduct is “substantial “Legal the actor from relieving аbout the harm and there is no rule of law bringing arguing probate that the 1 Respondent suggests appellants precluded are from they argued invalidity of that order correctly interpreted conservatorship order because although actually pursue an ruling, court’s he does not in their from having court order was estoppel argument since he views as conceded here respond judicial estoppel inapplicable the doctrine of is erroneous. accept litigant’s position as true. requires because it that the first tribunal 666 ” (Rosh (1994) v. Cave Inc.
liability. Imaging Systems, [Citations.]’ 136], University Nola M. v. Cal.App.4th Cal.Rptr.2d quoting [32 97].) (1993) Southern 16 Cal.App.4th Cal.Rptr.2d [20 California “ i.e., certain ‘The doctrine of cause limits proximate liability; harm, situations the defendant’s actual cause he where conduct an will nevertheless be absolved because of the manner in which the injury Thus, occurred. where there is an act which is not intervening independent foreseeable, deеmed the or “legal” the defendant’s conduct is not reasonably ” *10 (Hardison (1993) cause.’ 26 v. Bushnell 18 proximate Cal.App.4th [22 foreseeable, 106].) “In if the of general, risk Cal.Rptr.2d injury reasonably the defendant is liable. An act is a intervening independent superseding of if the negligence only intervening cause the actor for his relieving liability act is unusual or and hence not foreseeable. highly extraordinary reasonably 628; Torts, Witkin, Torts, (4 (8th ed.) Rest.2d of Cal. Law Summary § 435, 447.) Reasonable in this context is a the foreseeability for question §§ (Cline (1977) trier of fact.” 66 178 v. Watkins Cal.App.3d [135 838].) Cal.Rptr. a the reasonable
Causation is of fact for unless generally question jury, (Constance minds could not the absence of causation. B. v. State dispute of (1986) 645].) 178 207 Cal.App.3d Cal.Rptr. [223 California Here, the conduct did cause any trial court concluded that not respondent’s to because the court had construed its if injury probate properly order, the for of the trust amendment conservatorship petition approval would have been considered on its merits at the time it was by presented however, offered evidence—which must be accepted respondent. Appellants, (see as true for the nonsuit v. Vacaville purposes reviewing Hoff Unified Dist., 930)—that Cal.4th at a reasonable con attorney School supra, p. here taken fronted with the order involved would have conservatorship steps the execution of the trust amendment to the result reached in avoid before in his court. testified deposition probate Specifically, appellants’ expert for instruc violated the standard of care not a filing petition order; the not tions to determine the interpretation conservatorship proper to to to the trust amendment sign subject the court allow Winters requesting execution; after not of the amendment more seeking court approval in greater after it was signed; generally acting dispatch quickly for the the аmendment. argue proper inquiry handling court if trial court whether would have in the they probate was prevailed if had had taken of these For any steps. example, clarification, a reasonable court have construed the conser would requested executed? If order to the amendment Winters vatorship permit amendment, from the court for Winters to sign had requested permission a court have granted would reasonable subject subsequent approval, to such a have requests If reasonable would responded request? be a amendment, to take these failure steps allowing factor in causing injury. substantial on the hearing it should entertained If the court erred—if action to failure to take earlier merits of the amendment despite if the analysis only obtain court would alter approval—this fact In injury. action could be as a cause court’s viewed superseding Stone, (2d 1983) F.2d Skinner v. Raskin & Israel Cir. example, in him in a divorce action sued who had attorneys represented plaintiff former The a default entered in favor of his wife. judgment which was the default judgment entered the case to move vacate attorneys formally notice; court denied that it entered the trial on without grounds proper action, the In the this motion but was reversed appeal. malpractice as a result of the Second Circuit held that although plaintiff, appeal, merits, could case on the he recover contest divorce again position attributable to the defective default expenses judgment (e.g., expenses *11 enforcement of that if the default resulted judgment) judgment opposing there from the The court out that was evi- attorneys’ negligence. pointed dence from which a could conclude could have taken jury attorneys steps the default, to “head off’ the of the as had been with a entry they provided copy of the a month before it was entered. to judgment Acсording proposed Skinner, the could be held a liable if their conduct was attorneys proximate the trial mistake a contributing cause of unless the court’s was injury (Id. 266.) cause. at superseding p. erroneous, out,
As even if the court’s was appellants point ruling probate it cannot be an viewed as unforeseeable as a matter of law. As abstract err, it is a foreseeable that trial court will as evidenced principle, always us, the existence of courts. In the case before there is clearly appellate evidence that the court’s unforeseeable. The literal probate ruling a of the order trust language conservatorship required prior approval amendment. that he believed in his Respondent acknowledged deposition the order indicated the court would approval conservatorship prefer of the testimony of a trust amendment before execution. The deposition too, thе conserva- witnesses demonstrates that viewed expert they, parties’ of the trust amendment. order as to prior torship appearing require approval Indeed, the order as the and respondent’s—viewed experts—both appellants’ because the order and “ambiguous,” “astonishing” “confusing,” “unique,” for a testamentary to of the court require approval disposition appeared prior to such a Even if the that would not be normally subjected requirement. to of the amend- court was in fact insist on wrong prior approval ment, from there abundant could have foreseen evidence so, the do and of the order that it language conservatorship might might the been able to this result the protect against by seeking prior order to or of the appeared require, attempting clarify interpretation order. Faced with a unusual order that a highly appeared impose require client, ment for the amendment of the trust of an health, in elderly failing rapidly trust, of the beneficiary who wanted to unequivocally change had an to take all reasonable to avoid obligation having steps order interfere the effectuation of his client’s wishes. with conservatorship in violation of the of the order—even if Acting apparent requirement respon dent believed that to be requirement improper—subjected appellants risk. “An owes a to his client to unnecessary attorney duty employ skill, degree knowledge, judgment ordinarily possessed by members of the in out the services for his client. legal profession carrying One of these is foreseeable obligations reasonably anticipating [Citation.] risks. Buell v. Holland & Hart (Temple Hoyne Foundation [Citation.]” 1992) 851 P.2d could be liable for [attorney negli (Colo.Ct.App. did not fact' gence contract that violate rule drafting option against for failure to likelihood of perpetuities against litigation concerning protect rule], omitted.) italics applicability an
When
is what
attorney
charged
negligence,
question
had not
result would have been reached
reasonable court if
attorney
in the conduct
to be
The standard is
engaged
alleged
negligent.
objective;
does not
done under different circum
ask what
same
would have
but
been if the
had acted
attorney
stances
what
result should have
“The
method does not ‘recreate
trial-within-a-trial
what
differently.
par
Rather,
ticular
or fact finder would have done.
task is to
judge
jury’s
*12
determine
a reasonable
or fact
done . . . .’
judge
what
finder would have
(Brust
(1993)
1092].)
70
P.2d
though
v.
286
Even
Wn.App.
Newton
[852
courts,
are
the standard
‘should’
‘would’
used interchangeably by
determines
remains an
one. The trier of facts
should have
what
objective
been,
been,
been,
or could
or
what
result would have
have
might
been, had
or
have
the matter been before
v.
particular judge
jury. (Phillips
(1986)
300];
(Utah 1996)
P.2d
Harline Barker
The trial court’s of this case did not consider what analysis had acted the manner reasonable court would have done if respondent case, necessary to present 2 We note that in the if it should become determine whether incorrect, legal probate ruling responsibility question court’s was correct or to resolve this (See (1971) Martin v. Hall jury. Cal.App.3d would fall the trial court and not to the 719].) Cal.Rptr. 53 A.L.R.3d [97 Rather, the would have. attorney testified a competent expert appellants’ conduct actual court faced with court asked what a reasonable act, and, court did not so it believed the probate should done because no causal link between respondent’s concluded that there was the court effect, on judgment In the court was passing conduct and injury. appellants’ that a determining proper interpreta- conduсt: By the nature of respondent’s on the for a hearing order would have allowed tion of the conservatorship death, the trial or after Winters’s the trust amendment either before merits of Indeed, in no erroneous conduct. determined that engaged respondent there arguing so characterizes the matter on appeal, “[a]s respondent correct the trial court was no erroneous conduct on Huysentruyt’s part, of causation could not be shown.” to conclude that the element breach of the standard the issues of causation and This confuses reasoning conduct, no case of care: If erroneous engaged appellants’ conduct, not because that be defeated because there was no negligent would not the basis of the conduct did not cause This was injury. of absence of causation. nonsuit. The trial court nonsuit granted grounds breached the Because offered evidence that conduct care, considered what a reasonable standard of the trial court should have acted in conformance with court should would have done if had court’s of the case serves to exonerate the standard of care. The trial view error because of it considered to be the court’s probate what when, could offered evidence according by appellants, respondent in the conser- have headed off such error any by recognizing ambiguity that the order and vatorship acting protect against possibility probate harshest—but most Such court would enforce its literal—interpretation. mistake exoneration would be if the court’s only alleged appropriate probate Stone, Israel, (Skinner could be as a cause. v. Raskin & viewed superseding Here, not, 266.) at because there was evidence the 724 F.2d could supra, p. court’s order foreseeable. correct, hand, in fact On the other if the court’s order was is even more existence of factual issues as to respondent’s liability apparent. order, construed, required prior approval If the conservatorship properly executed, be liable if his before the trust amendment was *13 conduct and was constituted sustained failure to obtain such prior approval discussed above as The evidence injury. the cause of proximate appellant’s to seek conduct in failing factual regarding issues creating for the amendment from the court clarification of the order or approval under this scenario as of factual issues demonstrates the existence clearly well. should not have been that the nonsuit maintain additionally
Appellants the court—respondent of error any probate granted because—independent was to the negligent failing deliver trust amendment to the trustee during lifetime, Winters’s an omission that would have been fatal to the amendment if thе court had considered it on the merits. assert that Appellants Winters’s trust set forth no method for modification does not this When a revocable dispute point. trust does not expressly provide amendment, an method exclusive for modification or be modified may “by (other a will) than a the writing signed settlor and delivered to the trustee Code, (Prob. the lifetime of the during (a)(2); settlor.” subd. see § Code, 15402; also Prob. (1995) Irvine Conservatorship 40 Cal.App.4th § of “ 587].) a settlor the trust but Cal.Rptr.2d [47 ‘If modifies fails trustee, not be will [or amendment\ inform modification effective if trust instrument requires delivery to the [or amendment\ of modification consent, trustee or the trustee’s because the will [or amendment] modification not have been (Cal. made to the terms according instrument.’ governing of 12.3, (Cont.Ed.Bar Trust 1985) added.)” Administration italics p. § Irvine, Irvine, (Conservatorship supra, 1343.) In Cal.App.4th of trust amendment that was delivered to the held individuals was wrong (Id. at 1346.) ineffective. p. contend that if the even court had considered merits,
the trust amendment on its it would have had to invalidate the amendment because it was not to the delivered trustee Winters’ during lifetime, and that in not the trust negligent delivering amendment to the trustee in the nine between the time Winters days signed however, it and the time he died. maintains that the Respondent, trust must be read in conjunction with order conservatorship requiring court prior for amendments and that because there no approval prior here, there was no approval effective modification to deliver to the trustee. Irvine, notes the statement in Respondent Conservatorship supra, “ . . . consent of a third may or require party ‘[instruments specific ” before the waiting (40 modification is effective.’ at period Cal.App.4th p. Administration, 12.3, Cal. Trust 458.) quoting supra, As Irvine p. § “ noted, like these are ‘[provisions settlors from designed protect possible ” undue influence of who would like benefit from the trust assets.’ people (Irvine, 1343.) at p. cannot it both In on this
Respondent ways. arguing causаtion, the trial court found an absence of takes properly that, did not position order properly interpreted, conservatorship require prior amendment at issue in this case. If that particular so, cannot on the to excuse rely requirement prior approval a failure to the amendment to deliver the trustee.
The trial court made no claim of findings concerning appellants’ malprac- tice based on failure to deliver the trust amendment to the *14 death; damages before Winters’s its determination trustee court’s errone- conduct but were not caused by respondent’s therefore claim. Nonsuit on this basis was ous this ruling ignores separate however, on a claim of that in order to prevail It bears noting, inappropriate. amendment to on failure to deliver the trust based respondent’s malpractice trustee, both that to demonstrate ultimately respon- will appellants the amend- the amendment and that delivering dent was in not so negligent could showing been if he had done so. This latter ment would have effective that the amendment would be made if could also demonstrate only appellants court issue. If a have been found valid in the context of prior the amendment if had reasonable would not have approved respondent to or obtain taken what assert were with proper steps comply any relief from the order’s of prior approval, conservatorship requirement be to of the amendment would irrelevant. negligence delivery respect n. seek sanctions for his failure against respondent file his brief on brief was filed on timely appeal. Appellant’s opening 28, 18, On December 12 and November 2000. respectively, parties time to extend the for brief to signed filing stipulation respondent’s 26, 2001, 17(b) Rule notice shall be issued January provided “[n]o time to file his brief 2001.” extending beyond January respondent’s this was not received this court. On December Apparently, stipulation this court notified that the matter be submitted for deci respondent sion based on the record and brief if brief appellants’ opening not filed an was within 15 unless showed cause for days, good Court, (Cal. 17(b) (rule 17(b)).) extension of time. Rules of rule On January time to 26 was filed. extending January stipulation 24, 2001, On filed an for an extension of January application time to 16. declared that he had determined February Respondent’s attorney he needed to file an the record with documents augment application he the briefs in the from the court’s order and that including appeal was for an oral that had been rescheduled from argument January preparing $6 24 to 21 in an of a million verdict with a record of more February
than 10 volumes as well as additional besides briefing appeals two The of time on January one. extension present granted Respondent’s and, brief not filed this court notified February had 17(b) to rule that the time for his brief filing expired. рursuant March filed an to file permission On application counsel, after the extension to obtaining his brief. According *15 672 16, 2001, and, he to file the brief “within that time frame
February planned case, the time frame of a Rule any 17(b) within Notice proper providing brief, extension, which to file the rather than seek another as the days brief was counsel that the substantially believed completed.” Respondent’s 29, 2000, 17(b) December rule notice was erroneous because of the parties’ 26, 2001, and, the time for the brief until stipulation extending filing January therefore, 17(b) that he notice would receive rule to the respect 16, 2001, Instead, deadline. counsel February received respondent’s 21 notice that time had February expired. 12, 2001,
On March counsel filed a declaration in appellants’ opposition would respondent’s arguing granting application, application and that counsel had no basis to he believe prejudice appellants respondent’s could file his brief later than 2001. February According counsel, Baer, David W. when asked for the initially stipulation to extend time in December Baer that a continuance explained in his clients’ interests because interest was on their accruing prejudgment claims, which exceed the limits on might policy respondent’s professional but to the extension liability policy, agreed “provided [respondent’s 17(b) waived his to a Rule extension him to file the right allowing counsel] brief after that date.” Baer declared that he told Z. Bacerdo respondent’s Ray 24, 2001, him he call if needed further extension. On Baer January received Bacerdo’s for an extension of time to 16. On application February 15, Baer learned that the associate had February who prepared opening brief in this case would be the firm on March 1. She confirmed that leaving Bacerdo, she be able to would brief and contacted told prepare reply who her he be “at briеf ‘the last minute’ and wait filing respondent’s might 17(b) for the Rule notice.” Baer believed December parties’ stipulation 17(b) rule he extensions. felt it was when precluded any Accordingly, proper he did not Bacerdo hear from after the court’s 21 notice receiving February that time to file brief had or the court’s March 5 notice expired that the case briefed. fully brief,
In to the to late file Baer stated response application 17(b) that the December rule exten- any parties’ stipulation precluded 17(b) sion: He with Bacerdo that the court’s December rule agreed notice to a rule was sent in error but that this entitled disagreed 17(b) notice after the deadline for Baer stated that February filing. it would be inefficient” to have other than himself “extremely any attorney brief as he was the one at the firm familiar only prepare appellants’ reply matter, with the and that he was for a three-weelc trial in a will preparing $3 contest a million fоr March Baer estate scheduled involving his attention to stated it would his clients in the will contest to turn prejudice brief, to seek an it would while drafting prejudice reply difference between the policy *16 this increase “the extension because would claim, including Baer stated that and their claim.” damage appellants’ limits interest, insur- $1 the million limit of respondent’s exceeded prejudgment the fees by attorney believed had been reduced ance which limit he policy, declara- statement in his Baer noted Bacerdo’s the insurer. Finally, paid by on January brief was “substantially completed” tion that respondent’s been filed the by the brief could have Baer felt indicated which 16 deadline. February and to late file the brief March granted request
On we respondent’s as a for sanctions treat opposition request indicated we would appellants’ order, to file their As our by and allowfed appellants days reply. permitted issue Accord- filed a lеtter brief taking appellants’ position. of the rule the included a waiver only to ing parties stipulation respondent, 26, 2001, to to the extension of time 17(b) original January notice pertaining to seek a further would be able and the parties agreed Bacerdo’s letter 17(b) to a rule notice would still apply. extension which that he be relying asserts that when he informed Baer’s associate upon extension, another neither she nor 17(b) a rule notice rather than seeking to to do this. With right Baer informed him that his they disputed respect of that associates urges leaving claims prejudice, respondent appellants’ common mem- is a results in the generally remaining firms which practice burdens, for given bers of the firm additional and carrying 45-day period much more time that the usual 20 days the afforded filing reply appellants of brief. views the claim following for filing respondent’s Respondent and based on his insurance limits “speculative” “presump- prejudice policy and assumes tuous” because assumes will appellants prevail appeal certain, die in claim is a sum and because alleged damage delay question assert that sanctions are two weeks. for their only part, Appellants, of brief and respon- because of both lateness appropriate after the contact counsel at time any dent’s counsel’s failure to appellants’ and failures to meet December the further extensions regarding stipulation deadlines interest the brief. to filing According prejudgment appellants, $860,000 $235.55 at a so that day,4 on their claim3 rate accruing per $4,475.45 inter- brief to in in 19-day delay filing respondent’s corresponds that but for the delay by respondent, est. further assert and the total of Winters’s estate 3 Appellants’ claim is the difference between the value According ruling. court’s they from the amount received in settlement $1,240,000 brief, net the estate was and their appellants’ opening the total value of to $380,000. (after fees) According to attorney’s about recovery from the settlement application to late file opposition declaration in to appellants’ counsel’s $1,260,000 brief, recovery net from the appellants’ about the total value of the estate was $390,000. about settlement was $860,000 percent. 4 According calculation: divided times 10 associate who wrote brief would have been able to appellants’ opening 8, 2001; which could have been filed March prepare reply, therefore attribute to 59-day delay this case disposition due to their brief filed on 7 rather than reply being May March $13,897.45 interest. corresponding prejudgment Finally, appellants $4,000 $5,000 estimate that “cost” their counsel due to respondent’s delay Baer, brief, the difference in rates for billing who actually prepared reply and the associate who would have it if had filed the prepared brief on or before February *17 conduct in this matter was less than The
Respondent’s clearly exemplary. of the language 17(b) Rule notice parties’ stipulation, providing “[n]o shall be issued time to file his brief extending respondent’s beyond January [,]” is more than susceptible appellants’ interpretation respon- is, dent’s. That 17(b) no rule exten- stipulation appeal's contemplate sions no beyond January such extension of that simply date, 17(b) to future rule particular subject extensions of any subsequent Moreover, extensions that be might granted. obtained this having stipulated extension, limited, which was made no further effort to clearly communicate with counsel his need for further exten- appellants’ regarding court, sions. did Nor counsel alert respondent’s this when he specifically the extension to sought February counsel had appellants’ previously concern over further expressed delays. hand,
On the other claims of are not appellants’ very prejudice persuasive. With to the the effect of Baеr to respect delay having requiring prepare brief rather than the associate who reply personally having by prepared brief, is correct that it is a fact of life that prepared opening associates sometimes leave firms. offer no evidence that respon- dent to take of the deliberately sought of the associate’s advantage timing rather, this was an unfortunate coincidence. This leaving; court’s allowance of 45 for the of the brief after days filing brief was reply respondent’s for for this accepted filing compensated delay. consequence claim of based on the accrual of Appellants’ prejudice prejudgment First, interest on their claims is the claim will necessarily speculative. only have if in fact in this meaning appellants ultimately prevail malpractice Second, litigation. of time it will take to determine this given length the time of this point—including during elapsed pendency appeal, and, time for trial of the matter further any subsequent potentially, any brief is de minimis. The appeals—the 19-day delay filing respondent’s seek to attribute to is not 59-day delay appellants’ appropriately attributed, so both because it is to assume Baer’s associate would speculative counsel took and because filed a brief March 8 by appellants’ reply brief until court in not filing reply of the time allowed this advantage on the based ultimately claim Finally, prejudice May appellants’ a future judgment not be able to satisfy will assumption the total brings if the accrual of interest favor prejudgment liability amount the limits of professional above judgment the case. no evidence this is in fact insurance present policy. Appellants better, sum, could have been it was not In while conduct deadline for filing delayed were accommodated egregious. Appellants their brief. Sanctions are not warranted.
Disposition con- Thе is reversed and the matter remanded judgment proceedings for sanctions is sistent the views herein. request expressed Appellants’ denied. Costs to appellants.
Ruvolo, J., concurred. *18 HAERLE, but I would colleagues say, I concurin everything my J. overlooked more. And what I would a say say concept apparently implicates the court of the of below: by concept finality judgments. to be
A bit of of this case needs revisited: procedural history commissioner, an order in Carol then a court entered Judge Yaggy, conservator, a the then the conser- conservatorship proceeding requested by notes, vatee’s wife. It as the that conservatee Paul J. majority required, with, other among things, Winters (recently diagnosed hospitalized either to amend or dementia) “not have the power Alzheimer-type of this Court.” This order was revoke without the prior approval [his trust] when, the death and reissued by Judge Yaggy upon subsequently reapproved wife, to succeed her as оf the conservator was professional appointed conservator. notes, a before the conservatee died in
As the week or so majority opinion signed by December an amendment was prepared by respondent, seeking and then notarized but all without by conservatee respondent, death, after in January About month Winters’s approval. to be met with Yaggy, only of this amendment from
sought Judge take everything who would from conservatee’s stepdaughter, opposition under an unaltered trust. when, one, least of all should have been surprised April
No respondent, 8, 1998, that the orders essentially saying denied the Judge Yaggy petition,
676 said, i.e., she had entered twice before meant that an amendment they what to the trust had to be court before it could be subject approved effective. amendment, who stood to be the beneficiaries of the
Appellants, putative Winters, A082566), this order to this district appealed (Conservatorship of but later dismissed their after a settlement with the effecting step- course, 8, 1998, of order of daughter. Thereupon, Judge Yaggy’s April became final. and the court encour- below.
Except, apparently, Evidently limine, counsel their motions in the court aged via below by respondent’s in what be called substantial of engaged may second-guessing charitably order of as well as—albeit two Judge Yaggy’s April implicitly—the orders it. I this exercise and the unmistakable underlying regard implication “unreasonable,” of the under review that order was ruling Judge Yaggy’s letter, be not the of the if contrary spirit, concept judicial finality.1 This has res collateral many concept subparts, e.g., judicata, estoppel, rule collateral attacks on etc. all of them judgments, Underlying prohibiting erroneous, is the basic that: “If a no matter how within principle judgment, court, it can be reviewed and corrected one of jurisdiction only Witkin, (8 (4th the established methods of direct attack.” Cal. Procedure ed. Court, 1, 507.) 1997) Attack on in Trial Our courts Judgment p. appellate § (See, (1994) this basic rule. Estate Buck 29 repeatedly quoted e.g., $6,500 442]; U.S. Cur- v. Cal.App.4th Cal.Rptr.2d People [35 (1989) 294].) rency Cal.App.3d Cal.Rptr. [264 *19 correct that nor the court technically Now is neither below to “correct” orders. To that various specifically sought Judge Yaggy’s extent, been, I will concede that what below not have may strictly transpired a collateral attack on those orders. But those orders it “review” speaking, did, references them effectively labeling certainly many, many explicit to both contrary as “unreasonable.” It seems to me this is fundamentally and, due from one to another more respect superior department to the overall of finality judgments. importantly, concept 1 Nor, contrary argument, is such an to the contention of counsel at oral in, e.g., permitted by or the “trial a trial” mechanism discussed exercise mandated within (1997) Young Forge, Cal.App.4th Mattco Inс. v. Arthur & Co. 831-840 [60 what, may hypothetically, of Cal.Rptr.2d process That well involve determination 780]. judge alleged malpractice finder have done had the not have “reasonable” or fact certainly prevented necessary finding determination. It most does not precluded or or mandate, litigation being effectively on the permit, legal malpractice much less determined premise existing judgment that an is “unreasonable.” final this
And, laid down and is also contrary principle it was finally, courts not to second-guess probate that trial courts ought court a decade ago Thus, Gump in Estate jurisdiction. the latter’s peculiar on matters within 269], from we said (1991) (quoting 607 Cal.Rptr.2d Cal.App.4th [2 “ ‘The earlier, controversy): in the same but then opinion an depublished, on the and the litigation law disfavors the avoidance probate proceedings ” and resolved in probate.’ matters heard law side of the court of properly “amen” to that statement. an controversy This provides appropriate 12, 2001, and the opinion A for a was denied rehearing September petition modified to read as above. printed