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Chang v. Lederman

March 16, 2009


APPEAL from a judgment of the Superior Court of Los Angeles County, Mary Ann Murphy, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC349105).

The opinion of the court was delivered by: Perluss, P. J.


More than a half century ago, in Biakanja v. Irving (1958) 49 Cal.2d 647 (Biakanja), the Supreme Court held, notwithstanding the absence of privity, a notary public, engaging in the unauthorized practice of law, who drafted and supervised the execution of a will, owed a duty of care to the beneficiary who lost her inheritance due to his negligence. Three years later, in Lucas v. Hamm (1961) 56 Cal.2d 583 (Lucas), the Court held beneficiaries whose bequests arguably failed because the testator‟s lawyer did not adequately safeguard the will from challenge under the rule against perpetuities could assert a claim for professional negligence against the lawyer. Under Biakanja and Lucas and the appellate cases that explain and apply them, does a testator‟s lawyer owe a duty of care to a nonclient who alleges she was a potential beneficiary of the testator‟s estate in the absence of an executed will or trust instrument expressly reflecting the testator‟s intent? Does the answer to the question change if the nonclient was previously named in a will or trust instrument executed by the testator and the allegation is the testator intended to revise his or her estate plan to increase the gift to the beneficiary? Because recognizing an expanded duty of care in either situation would place an intolerable burden on the legal profession, we conclude the answer to both questions must be no. Accordingly, we affirm the trial court‟s order of dismissal and the judgment entered after it sustained without leave to amend Gregory Lederman‟s demurrer to Myung Chang‟s second amended complaint for legal malpractice, breach of fiduciary duty and intentional infliction of emotion distress.


1. The Raphael Schumert 2004 Revocable Trust, the First Amendment to the Trust and Raphael Schumert's Death

Raphael Schumert, a physician, and Chang, a registered nurse, met while working at a hospital in 1994.*fn1 They lived together for several years before marrying on August 27, 2004.

In early 2004, approximately six months before his marriage to Chang, but while living with her, Schumert, who had been diagnosed with terminal cancer, retained Lederman, a probate attorney and estate planner, to prepare a revocable trust. The Raphael Schumert 2004 Revocable Trust, executed on March 2, 2004, provided for two specific distributions upon Schumert‟s death: $30,000, as well as the furniture and television sets located at Schumert‟s principal place of residence in Sherman Oaks, to Chang; and $10,000 to Wenna Tancio. The residue of the trust estate (identified in an attachment to the trust instrument) was left to Schumert‟s only child, Roy Schumert, in trust.*fn2 Schumert identified himself as his trust‟s initial trustee; his former wife and Roy Schumert‟s mother, Etti Hadar, was named as first successor trustee. The trust also provided that, following Schumert‟s death, the Sherman Oaks residence was to be sold by his successor trustee or leased to a third party for a fair market rent. The trust specified "Chang must vacate [the Sherman Oaks residence] within thirty (30) days of my death."

On April 15, 2004 Schumert executed a first amendment to the Raphael Schumert 2004 Revocable Trust, also prepared by Lederman. The amendment reduced the sum to be distributed to Chang from $30,000 to $15,000, eliminated entirely the distribution to Tancio and recited, "In all other respects, the trust remains unchanged."

During the same period, in late March 2004, Schumert executed a will to dispose of his assets in Israel. A second will was subsequently executed by Schumert in Israel, following his marriage to Chang, which apparently did not provide for Chang in any way and did not expressly revoke the Raphael Schumert 2004 Revocable Trust, as amended.

According to Chang‟s pleading, on or about February 1, 2005, five to six months following their marriage, Schumert, who was now seriously ill, instructed Lederman to revise his trust to leave the entire trust estate to Chang (with the understanding Chang would give Roy Schumert the sum of $250,000 when he turned 25). Lederman refused and told Schumert, if he modified the trust, Schumert would be sued by Hadar. Lederman also advised Schumert he should have a psychiatric evaluation before making any changes to his estate plan. Schumert died on March 17, 2005 without making any further amendments to the trust.

2. The Probate Proceedings

After Schumert‟s death, Hadar, as trustee of the Raphael Schumert 2004 Revocable Trust, retained Lederman to represent her in the administration of the trust. In that capacity on April 1, 2005 Lederman wrote Chang and requested she vacate the Sherman Oaks residence by April 17, 2005 as provided in the trust (30 days after Schumert‟s death on March 17, 2005).

On April 12, 2005 Hadar initiated formal probate proceedings. For her part, Chang filed an action in probate court seeking to revoke the trust and awarding her a one-half interest in the estate under the "omitted spouse" doctrine. The probate court ruled the will executed by Schumert in Israel following the marriage precluded application of that doctrine and also found the Raphael Schumert 2004 Revocable Trust was valid and had not been revoked or invalidated by the subsequent will. In addition, the court ruled Chang‟s action violated the no-contest provision in the trust, which revoked the $15,000 bequest to Chang in the trust.

3. Chang's Complaint for Breach of Fiduciary Duty, Professional Negligence and Intentional Infliction of Emotional Distress

On March 16, 2006 Chang filed this lawsuit against Lederman, asserting causes of action for breach of fiduciary duty, breach of ethical duties of attorney, professional negligence and intentional infliction of emotional distress. The gravamen of Chang‟s lawsuit, as she describes it, is that Lederman, in his capacity as Schumert‟s probate attorney, breached his legal duty of care owed to Chang, in her capacity as an intended third-party beneficiary of her husband‟s will and trust, by refusing and failing to revise the trust and will to comply with Schumert‟s expressly communicated intent to bequeath to her his entire estate located in the United States (valued, according to Chang, at more than $600,000). The complaint also alleged Lederman‟s subsequent representation of Hadar, as successor trustee of the trust, whose interests were adverse to Chang‟s, was a breach of Lederman‟s ethical duties to Chang. Finally, the complaint alleged Lederman‟s demand that Chang move out of the Sherman Oaks residence shortly after the death of her husband "was extreme, outrageous and humiliating."

The trial court sustained Lederman‟s demurrer to the complaint on August 8, 2006, concluding Chang had failed to adequately allege she was the intended beneficiary of Schumert‟s testamentary documents or otherwise allege facts establishing that Lederman owed her a duty of care. The court also found she had failed to allege the necessary elements for intentional infliction of emotional distress. Chang was granted leave to amend.

The first amended complaint, filed on August 28, 2006, eliminated the claim for breach of ethical duties of attorney and modified other language in the pleading. Chang now expressly alleged she was an intended beneficiary of the trust and Lederman was retained by Schumert for the purpose of benefiting beneficiaries, including Chang, of the trust. Chang also alleged, as part of her claim for intentional infliction of emotional distress, that Lederman knew the probate homestead provision would protect her from having to move from the Sherman Oaks residence ...

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