Opinion
H041409
12-11-2017
NANCY T. CHU, Plaintiff and Appellant, v. PATRICIA LYNNE CONKLING, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. CV232730)
This is a legal malpractice action in which plaintiff and appellant Nancy T. Chu sued her former attorney, defendant and respondent Patricia Lynne Conkling. Chu claimed that Conkling failed to properly advise Chu regarding a potential legal malpractice action that Chu wished to bring against Jessica Wang, an attorney who drafted her late mother's trust and other testamentary documents.
Conkling is representing herself in this appeal.
The trial court granted Conkling's motion for summary judgment on the ground that Chu could not establish that Wang owed her a duty as a third-party beneficiary of Chu's late mother's trust, or as a client. As a result, Chu was not damaged by any alleged negligence on Conkling's part in advising her regarding a potential malpractice action against Wang.
Chu appeals the trial court's grant of the motion for summary judgment in Conkling's favor.
STATEMENT OF THE FACTS AND CASE
In 2003, Wang drafted a will, trust, durable power of attorney and grant deed for Chu's mother, Toni Chu. At the time, Toni owned her home in Mountain View in joint tenancy with her son, Tom Chu. The testamentary instrument purported to leave all of Toni's interest in the property to Chu upon Toni's death. The grant deed stated as follows: "FOR NO CONSIDERATION, Toni W. Chu, as her 50% interest, hereby severs the joint tenancy and GRANTS to Toni W. Chu, as trustee of Toni W. Chu Family Trust." The trust stated "If the real property is not in the trust at the time of the settlor's death, this gift shall lapse." The grant deed was not recorded prior to Toni's death.
Subsequent to the creation of the testamentary documents in 2003, Toni executed a grant deed in 2004 naming herself and Tom joint tenants of the property. She recorded the 2004 grant deed on February 26, 2004.
Toni died on March 22, 2010. Following Toni's funeral, Chu's sister, Victoria Chu (Vicki), contacted Wang to see if the 2003 grant deed had been recorded and Wang told Vicki that it had not.
On March 31, 2010, Chu gave Wang a check for $15 to cover the recording fee for the 2003 grant deed, which Wang recorded on April 14, 2010.
On July 12, 2010, Wang drafted a document entitled "Affidavit Re Death of Settlor and Trustee of the Toni W. Chu Family Trust," and grant deed to transfer ownership of Toni's interest in the property to Chu. Chu paid Wang $300 to draft the documents, and $33 to the Clerk Recorder of Santa Clara County for the documents to be recorded. Chu signed both documents and they were recorded on July 19, 2010.
Following the recording of the affidavit and grant deed, Tom filed a quiet title action on August 25, 2010, to declare him the sole owner of the property.
Chu hired Conkling in February 2011 to represent her in the quiet title action. Chu asked Conkling whether Conkling thought she had a valid claim against Wang for malpractice in the handling of the matters related to her late mother's estate and property. Conkling advised Chu that she thought Chu might have a valid claim against Wang for malpractice, but only if Chu lost the quiet title action brought by Tom.
On December 1, 2011, the court granted Tom's motion for summary judgment on the quiet title action and awarded Tom sole ownership of the property.
After losing the quiet title action brought by Tom, Chu filed the current malpractice action against Conkling on September 20, 2012, alleging that Conkling did not correctly advise her regarding a potential malpractice claim against Wang for Wang's handling of Toni's estate.
On November 14, 2013, Conkling filed a motion for summary judgment that is the subject of this appeal. The trial court granted the motion on the ground that Wang did not owe a duty to Chu as either a third-party beneficiary of Toni's 2003 trust, or as a client. Specifically, the court found that the 2004 grant deed designating Toni and Tom as joint tenants that Toni recorded in 2004 after executing the testamentary instruments naming Chu as Toni's sole beneficiary demonstrated Toni's intent that Tom inherit her interest in the property upon her death. In addition, the court found that Wang and Chu did not have an attorney-client relationship.
Following the court's granting of Conkling's motion, Conkling did not seek a final judgment in the matter. Consequently, the court dismissed the action on August 1, 2014. Chu now appeals.
DISCUSSION
Chu asserts that the trial court erred in granting Conkling's motion for summary judgment, because Chu had a valid claim against Wang for malpractice that was precluded because of Conkling's erroneous advice.
Standard of Review
In order to prevail on a motion for summary judgment, a defendant must show that one or more elements of the plaintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) "A court may grant summary judgment only when the evidence in support of the moving party establishes that there is no issue of fact to be tried." (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 547.) In other words, summary judgment should be granted only when a moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
On an appeal from summary judgment, we review the record de novo. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) "We need not defer to the trial court and are not bound by the reasons for [its] summary judgment ruling; we review the ruling of the trial court, not its rationale." (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 85.)
Because a motion for summary judgment raises only questions of law, we independently review the parties' supporting and opposing papers and apply the same standard as the trial court to determine whether a triable issue of material fact exists. (City of San Diego v. U.S. Gypsum Co. (1994) 30 Cal.App.4th 575, 582.)
We consider all of the competent evidence presented by the parties and the uncontradicted inferences supported by the evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) We do not weigh the evidence and inferences, but merely determine whether a reasonable trier of fact could find in favor of the party opposing the motion, and must deny the motion when there is some evidence that, if believed, would support judgment in favor of the nonmoving party. (Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 139.) We resolve any doubt as to the granting of the motion in favor of the opposing party. (Renna v. County of Fresno (2000) 78 Cal.App.4th 1, 5.)
Legal Malpractice
" 'The failure to provide competent representation in a civil or criminal case may be the basis for civil liability under a theory of professional negligence. In a legal malpractice action arising from a civil proceeding, the elements are (1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney's negligence.' " (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 165 (Filbin).)
"With regard to causation and damages, the plaintiff is required to prove that but for the [attorney's] negligent acts or omissions, 'the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred.' [Citations.] As such, a determination of the underlying case is required. This method of presenting a legal malpractice lawsuit is commonly called a trial within a trial. It may be complicated, but it avoids speculative and conjectural claims." (Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 357.)
Here, Conkling's liability turns on whether Chu had a valid claim against Wang for malpractice. An essential element of a legal malpractice claim is the existence of a duty on the part of the attorney. (See Filbin, supra, 211 Cal.App.4th at p. 165.) Conkling argues that there is no triable issue of material fact as to Wang's liability for malpractice, because the undisputed evidence shows that Wang did not owe a duty to Chu, because Chu was neither a third-party beneficiary of Toni's 2003 trust, nor was she Wang's client.
Duty to Chu as a Third-party Beneficiary
Conkling asserts that the 2004 grant deed designating Toni and Tom as joint tenants evidences Toni's intent that Tom inherit Toni's interest in the property at her death. Therefore, Chu cannot bring a claim against Wang for malpractice as a third-party beneficiary of Toni's 2003 trust and grant deed.
The undisputed evidence shows that Toni and Tom owned the subject property in joint tenancy in 2003 when Toni hired Wang to draft a trust and a grant deed severing the joint tenancy and designating Chu as the sole beneficiary of Toni's interest in the property. The 2003 grant deed provided that once recorded, Toni's interest would be conveyed to her trust. The 2003 grant deed was not recorded, nor was the property transferred to her trust until April 20, 2010, several weeks after Toni's death.
The undisputed evidence also shows that subsequent to the creation of the 2003 trust and grant deed, Toni executed another grant deed in 2004 that provided that the property be held in joint tenancy between Toni and Tom. The 2004 grant deed was recorded in 2004 while Toni was still alive, and there is no evidence that the joint tenancy was severed prior to or immediately following her death. (See Civ. Code, § 683.2, subd. (c)(1) & (2) [severance of a joint tenancy by deed or other written instrument must be recorded before the death of the severing tenant, or notarized not earlier than three days prior to the severing tenant's death, and recorded not later than seven days after the death of the severing tenant].)
There is no testimony in the record showing that Toni intended to change the beneficiary designation in the 2003 testamentary instruments. However, subsequent documentary evidence may supersede the original beneficiary designation. (See Snyder v. Snyder (1987) 197 Cal.App.3d 6, 10-11.) The creation and recording of the 2004 grant deed subsequent to the drafting of the trust instruments in 2003 is evidence that Toni intended that Tom, as the surviving joint tenant, inherit the remainder of her property upon her death.
Chu argues that the 2004 grant deed was created solely for the purpose of refinancing the property, and did not change the testamentary intent of the 2003 trust and grant deed. However, Chu's assertion is based entirely on her hearsay declaration, and is not supported by competent evidence.
Since the 2004 grant deed shows that Tom was Toni's intended beneficiary of her interest in the property, Chu has no claim for malpractice against Wang, because Wang did not owe her a duty as a third-party beneficiary of Toni's 2003 trust.
Duty Based on Attorney-client Relationship Between Chu and Wang
Chu argues that she has a valid malpractice action against Wang because Wang had a duty to her as her attorney.
The evidence that Chu presents to support her contention that Wang was her attorney is a declaration filed in support of her opposition to Conkling's motion for summary judgment. In it, she states for the first time that she relied on Wang's advice when deciding to reject an offer from Tom shortly after Toni's death that he would give Chu a portion of the proceeds from the sale of the property if she would move out.
However, this evidence is in direct contravention to Chu's prior deposition testimony in the quiet title action in which she stated that she relied on her sister Vicki's advice about the property and that Wang was Toni's attorney, not hers.
Chu argues that her prior deposition testimony from the quiet title action is inadmissible in the present action under Evidence Code section 1292, subdivision (a) which provides for the applicability of the hearsay rule to prior deposition testimony from another case. This code section is inapplicable here because Chu's prior statements are admissions (Evid. Code, § 1220).
The California Supreme Court has long held that a party may not create a triable issue of fact to defeat summary judgment merely by means of a self-serving declaration that contradicts her own deposition testimony. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22 (D'Amico).)
In determining whether a triable factual issue exists, the court may give "great weight" to admissions made in discovery and "disregard contradictory and self-serving affidavits of the party." (Preach v. Monter Rainbow (1993) 12 Cal.App.4th 1441, 1451.) In D'Amico, the court held, that " '[w]here . . . there is a clear and unequivocal admission by the plaintiff . . . in his deposition' " and the plaintiff contradicts that admission in a subsequent declaration, " 'we are forced to conclude there is no substantial evidence of the existence of a triable issue of fact.' " (D'Amico, supra, 11 Cal.3d at p. 21.) Such admissions "have a very high credibility value," especially when "obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts." (Id. at p. 22.) "Accordingly, when such an admission becomes relevant to the determination, on motion for summary judgment, of whether or not there exist triable issues of fact . . . , it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits." (Ibid.)
Where, as here, a declaration submitted in opposition to a motion for summary judgment clearly contradicts the declarant's earlier deposition testimony, the court is free to disregard the declaration and " 'conclude there is no substantial evidence of the existence of a triable issue of fact.' " (D'Amico, supra, 11 Cal.3d at p. 21.)
Chu's self-serving declaration submitted in opposition to Conkling's motion for summary judgment stating that she relied on Wang's advice in dealing with Tom and the ownership of the property following her mother's death does not create a triable issue of fact as to whether she had an attorney-client relationship with Wang. Chu's prior sworn testimony stated unequivocally that Wang was not Chu's attorney.
In addition to her declaration, Chu also submitted copies of two checks that she delivered to Wang's office in July 2010: one in the amount of $33 made out to the Clerk Recorder of Santa Clara County for recording fees, and the other in the amount of $300 made out to Wang for the drafting of an "Affidavit Re Death of Settlor and Trustee of the Toni W. Chu Family Trust" and a grant deed purporting to transfer Toni's 50 percent interest in the property to Chu. Chu argues that the checks she delivered to Wang for recording fees and document drafting demonstrate that Wang was her attorney.
Chu does not offer any evidence in addition to the checks that would demonstrate that Wang actually served as her attorney, such as an engagement letter, testimony from Wang, invoices or other evidence that would show what, if any legal advice or services Wang actually provided to Chu. Moreover, the competent evidence in the record from Chu's deposition testimony is that Wang was not Chu's attorney, and Chu relied on her sister Vicki for advice about the deed and transfer of the property. Contrary to Chu's argument, the mere existence of the checks does not raise a triable issue of fact as to whether Wang was Chu's attorney.
The undisputed evidence shows that Wang was not Chu's attorney and did not owe her a duty as such. " ' "A key element of any action for professional malpractice is the establishment of a duty by the professional to the claimant. Absent duty there can be no breach and no negligence." ' " (Moore v. Anderson Zeigler Disharoon Gallagher & Gray (2003) 109 Cal.App.4th 1287, 1294.)
Conkling is entitled to judgment as a matter of law. Chu suffered no damages from Conkling's advice regarding a potential claim against Wang, because Chu had no valid claim against Wang for malpractice as either a third-party beneficiary of Toni's trust, or as Wang's client.
DISPOSITION
The judgment is affirmed. Each party shall bear her own costs on appeal.
/s/_________
Premo, J.
WE CONCUR: /s/_________
Elia, Acting P.J. /s/_________
Grover, J.