IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento
December 29, 2010
KRISTEN BYE, PLAINTIFF AND APPELLANT,
JOSEPH COOPER ET AL., DEFENDANTS AND RESPONDENTS.
Super. Ct. No. 07AS04206
The opinion of the court was delivered by: Blease,j.
Bye v. Cooper CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Plaintiff Kristen Bye appeals from a summary judgment granted defendants Joseph Cooper, Leonard Esquina, Jr., and Joseph Cooper Law Corporation in a legal malpractice action and from an order denying her leave to amend her complaint.
The trial court ruled plaintiff could not establish that but for the alleged negligence of the defendant attorneys she would have obtained a more favorable judgment or settlement in the personal injury action in which the malpractice allegedly occurred. More particularly, the court found that the defect upon which that action was based, the height of the rise in the sidewalk on which she tripped, was trivial as a matter of law. The court also ruled that plaintiff failed to plead facts supporting a new legal theory that defendants were negligent in advising her to reject a settlement offer of $85,000 (predicated upon a judicial arbitration award) and pursue a personal injury action, while failing to advise her that the action was vulnerable to the trivial defect doctrine, and thus evidence supporting the claim could not be used to defeat defendants' motion for summary judgment. Finally, the court denied plaintiff's request for leave to amend her complaint to include the new legal theory, made for the first time at the hearing on the summary judgment motion.
Plaintiff appeals, contending the trial court erred in granting summary judgment because (1) a triable issue of material fact existed as to whether the defect upon which her personal injury action was based was trivial as a matter of law, and (2) defendants' failure to advise her that her personal injury action was vulnerable to the trivial defect doctrine and that she should accept the settlement offer [arbitration award] provided a separate basis for her malpractice claim and did not constitute a new legal theory. Alternatively, she claims the trial court abused its discretion in denying her leave to amend her complaint.
We shall conclude none of plaintiff's contentions have merit and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 1:30 p.m. on October 23, 2002, plaintiff walked from her apartment to her mailbox to retrieve her mail. On her way back, she tripped and fell on a raised portion of the sidewalk. It was a sunny day, the sidewalk was dry, and there were no leaves, vegetation, or other debris covering the rise in the sidewalk where she fell. At the time of the accident, plaintiff had lived in the same apartment for eight years, and it was her practice to retrieve her mail on a daily basis. Shortly after her fall, plaintiff measured the rise in the sidewalk at the location where she fell, and it was between 1-1/8 inch and 1-1/4 inch in height.
On October 1, 2003, plaintiff retained defendant Joseph Cooper Law Firm to represent her in a personal injury action arising from her trip and fall. On October 21, 2003, defendants filed a complaint on plaintiff's behalf against the apartment complex owner and manager for premises liability and general negligence. On September 18, 2006, Cooper caused the case to be dismissed on plaintiff's behalf.
On September 14, 2007, plaintiff filed a tort action against defendants, alleging legal malpractice and breach of fiduciary duty. As to both counts, she sought compensatory damages and "other and further relief . . . ." Plaintiff alleged that Esquina, who assisted Cooper in handling her personal injury action, was negligent in advising her to instruct her physician to change a report and in failing to "adequately conduct discovery regarding the liability issues [or] take reasonable steps to prepare [her] case for judicial arbitration. Instead, he negligently made a perfunctory presentation, and the judicial arbitration award reflected [his] lack of zeal, lack of discovery and preparation, and less than thorough, diligent presentation and work-up of the liability issues." As for Cooper, plaintiff alleged that after he "stepped back in [to] take over the direct management of [her] case," he failed to "adequately prepare the case [or] review the extensive medical records and reports." In particular, he "did not exercise reasonable care, skill and diligence" in preparing for the deposition of plaintiff's physician and "breached his fiduciary duty to [plaintiff] in putting his own selfish interests . . . ahead of [plaintiff's]" by insisting she sign a letter authorizing him to dismiss her case. As to both Esquina and Cooper, plaintiff alleged she "suffered substantial injury, damage and harm as a result of the[ir] conduct . . . . As a result of the professional negligence of Esquina and Cooper and Cooper's breach of his fiduciary duty to her, [plaintiff] was forced to dismiss her case. A reasonable, careful lawyer would have conducted a thorough presentation and prosecution of the underlying personal injury action and obtained a substantial damages award on [her] behalf."
On September 26, 2008, defendants filed a motion for summary judgment, arguing that "[s]ince Plaintiff could not prevail in the underlying action as a matter of law as the apartment complex had no duty to warn or protect [her] from defects that were 'minor, trivial, or insignificant,' Plaintiff cannot show that Defendants' alleged negligent representation caused her damages."
Plaintiff opposed the motion, arguing "[c]ausation is ordinarily a question of fact which cannot be resolved by summary judgment." She also asserted that "[i]f there really were a genuine risk of losing the underlying . . . personal injury . . . action due to the 'trivial defect' defense, attorney defendants rendered negligent advice which caused [plaintiff] to forego an $85,000 settlement based on a favorable $85,000 arbitration award." In support of her assertion, she relied on the following evidence set forth in her and her counsel's declarations: neither Esquina nor Cooper ever advised her "that there was an issue of whether the sidewalk defect was 'trivial'" or that "the property owner and property manager could win because of this 'trivial defect' argument/defense"; the defendants in the personal injury action never asserted the defect was trivial; the arbitrator rendered an award in plaintiff's favor in the amount of $85,000; Esquina told her that the decision whether to accept the arbitrator's award was hers and that he thought she could do better at trial; and had Esquina or Cooper told her there was a "strong likelihood" she would lose her case because the "sidewalk elevation defect" was trivial as a matter of law, she "probably would have accepted the arbitration award . . . ."
Defendants objected to the admission of plaintiff's evidence in support of her assertion concerning defendants' failure to advise her about the trivial defect doctrine as immaterial. Among other things, defendants argued plaintiff was precluded from introducing "new facts or legal theories" that were outside the scope of the pleadings to defeat a motion for summary judgment, and that her assertion concerning defendants' failure to advise her about the trivial defect doctrine, and her evidence in support of the assertion, constituted new facts and a new theory. To the extent plaintiff wished to rely on the new facts or theory, defendants argued she should seek leave to amend her pleadings before the hearing on the summary judgment motion.
The summary judgment motion was heard on December 19, 2008. At the hearing, plaintiff argued, among other things, that her assertion that defendants were negligent in failing to advise her about the trivial defect doctrine and to accept the settlement was not a new legal theory, and that her response to a special interrogatory put defendants on notice that she contended their advice about whether to accept the arbitration award was negligent.*fn1 Alternatively, she requested leave to amend her complaint to "expressly [allege] bad advice about the arbitration award . . . ."
The trial court granted summary judgment in defendants' favor. The court concluded plaintiff could not establish she was damaged as a result of defendants' alleged malpractice because the defect upon which the underlying personal injury action was based was trivial as a matter of law. The court found plaintiff's assertion that defendants were negligent in failing to advise her that her personal injury action as vulnerable to the trivial defect doctrine constituted "a new theory of recovery, i.e., the failure to properly counsel her, resting on a fundamentally different factually basis than what was asserted in the complaint, i.e. shoddy preparation for the arbitration." The court explained that "[n]either the allegations of the complaint, nor the response to the Special Interrogatory, raise the issue of whether the advice given to plaintiff regarding the arbitration award was negligent. The allegations of the complaint raise the issue that Mr. Esquina's conduct at the arbitration, and his preparation for the arbitration, were negligent. There are no allegations regarding Mr. Cooper and the arbitration. The response to the Special Interrogatory discusses Mr. Cooper's failure to give advice regarding the arbitration award. That, however, is not alleged in the complaint and is not the basis of the malpractice action against Mr. Cooper." The trial court sustained defendants' objections to the plaintiff's evidence submitted in support of her assertion that defendants were negligent in failing to advise her about the trivial defect doctrine and its potential impact on her case. Finally, the court denied plaintiff's request for leave to amend her complaint.
"On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.] Under California's traditional rules, we determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff's case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)
The Trial Court Properly Concluded That The Sidewalk
Defect Was Trivial As A Matter Of Law
"In a litigation malpractice action, the plaintiff must establish that but for the alleged negligence of the defendant attorney, the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred." (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.) Plaintiff contends the trial court erred in concluding that she could not establish that but for defendants' alleged negligence, she would have obtained a more favorable result in her personal injury action because the defect upon which that action was based was trivial as a matter of law. More particularly, plaintiff asserts "defendants did not meet their burden of establishing beyond factual dispute that the sidewalk defect was 'trivial.'" We discern no error.
"An initial and essential element of recovery for premises liability under the governing statutes is proof a dangerous condition existed. [Citations.] The law imposes no duty on a landowner . . . to repair trivial defects, or 'to maintain [its property] in an absolutely perfect condition.' [Citation.] '[A] property owner is not liable for damages caused by a minor, trivial or insignificant defect in property.' [Citation.] Some defects are bound to exist even in the exercise of reasonable care in the maintenance of property and cannot reasonably be expected to cause accidents." (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566.)
"The trivial defect doctrine is not an affirmative defense. It is an aspect of a landowner's duty which a plaintiff must plead and prove. [Citation.] The doctrine permits a court to determine whether a defect is trivial as a matter of law, rather than submitting the question to a jury. [Citation.] 'Where reasonable minds can reach only one conclusion--that there was no substantial risk of injury--the issue is a question of law, properly resolved by way of summary judgment.'" (Stathoulis, supra, 164 Cal.App.4th at p. 567.)
"The legal analysis involves several steps. First, the court reviews evidence regarding the type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors such as the weather, lighting and visibility conditions at the time of the accident, the existence of debris or obstructions, and plaintiff's knowledge of the area. If these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person, the court should deem the defect trivial as a matter of law and grant judgment for the landowner." (Stathoulis, supra, 164 Cal.App.4th at pp. 567-568.)
As a preliminary matter, defendants contend plaintiff forfeited her argument that the defect was not trivial by failing to make that argument below. Even assuming plaintiff did not forfeit the argument, the argument fails.
The differential in the two slabs of sidewalk was between 1-1/8 and 1-1/4 inch. Courts have found substantially similar defects to be trivial or minor. (See Whiting v. City of National City (1937) 9 Cal.2d 163, 164-166 [3/4 inch height difference in sidewalk slabs trivial]; Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 396-397 [same] Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 725 [same]; Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361, 364 [1-1/2 inch difference in sidewalk slabs is "minor defect" and insufficient to "charge the city with constructive notice of its presence"]; Meyer v. City of San Rafael (1937) 22 Cal.App.2d 46, 47-50 [5/8 to 1-3/8 inch difference in elevation of sidewalk panels not sufficiently "conspicuous and dangerous" to charge city with constructive notice]; Balmer v. City of Beverly Hills (1937) 22 Cal.App.2d 529 [1 inch difference in elevation of sidewalk panels trivial]; Dunn v. Wagner (1937) 22 Cal.App.2d 51, 54 [1 inch rise in sidewalk trivial].)
Because the preliminary analysis reveals a trivial defect, we next consider evidence of additional factors to determine whether the defect was sufficiently dangerous to a reasonably careful person. (Stathoulis, supra, 164 Cal.App.4th. 4th at p. 568.) Plaintiff tripped and fell on a sunny afternoon. The sidewalk was dry, and there were no leaves, vegetation, or other debris covering the rise in the sidewalk where she fell. Plaintiff was familiar with the general area, having lived at the apartment complex for eight years and having walked the same route to and from her mailbox countless times. There was no evidence of anyone else tripping and falling on any sidewalk at plaintiff's apartment complex. Because these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person, the trial court properly concluded the defect was trivial as a matter of law.*fn2
The Trial Court Did Not Abuse Its Discretion In Concluding Plaintiff Was Precluded From Relying On Evidence Defendants Failed to Advise Her That Her Case Was Vulnerable To The Trivial Defect Doctrine To Defeat Summary Judgment
Assuming we conclude that the trial court properly determined the defect upon which plaintiff's personal injury action was based was trivial as a matter of law, plaintiff contends the court nevertheless erred in granting summary judgment because defendants were negligent in failing to advise her that her personal injury action was vulnerable to the trivial defect doctrine. She disputes the trial court's determination that this assertion constituted a new legal theory and its decision to exclude evidence supporting that assertion. According to plaintiff, "[t]hat evidence was but one more example of how the Cooper Defendants' negligent advice induced [her] to reject a settlement offer and continue with her lawsuit, only to have Cooper pressure her into dismissing it for no consideration." We are not persuaded.
"'The purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute.' [Citation.] 'The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues: the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.' [Citations.] The complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiff's cause of action." (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.) "A sufficient motion cannot be successfully resisted by counterdeclarations which create immaterial factual conflicts outside the scope of the pleadings; counterdeclarations are no substitute for amended pleadings." (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1065; see also Government Employees Insurance Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98-99, fn. 4 [A "plaintiff cannot bring up new, unpleaded issues in his or her opposing papers."].)
As plaintiff acknowledges in her opening brief, "the legal malpractice suit as [sic] but one variety of negligence action that is governed by the general doctrines of pleading and proof prevailing in negligence actions. (Starr v. Mooslin (1971) 14 Cal.App.3d 988, 999.)" "Negligence may be generally pleaded, but there are limits to the generality with which the plaintiff is allowed to state a cause of action. The complaint must indicate the acts or omissions which the plaintiff claims were negligently performed." (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 60, italics added; see also Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.)
Here, plaintiff's complaint identified a number of acts and omissions which she claimed were negligently performed; however, defendants' failure to advise her that her personal injury action was vulnerable to the trivial defect doctrine or to accept the arbitration award were not among them. Rather, the clear thrust of plaintiff's complaint was that defendants were negligent in advising her to instruct her physician to amend a medical report, failing to adequately prepare for the arbitration and trial, and failing to adequately conduct the arbitration. The only paragraph that mentioned the arbitration alleged that "Esquina did not take reasonable steps to move [plaintiff's] case forward and did not adequately conduct discovery regarding the liability issues nor take reasonable steps to prepare [plaintiff's] case for judicial arbitration. Instead, he negligently made a perfunctory presentation, and the judicial arbitration award reflected Esquina's lack of zeal, lack of discovery and preparation, and less than thorough, diligent presentation and workup of the liability issues." Plaintiff's allegation that Esquina failed to adequately prepare for the arbitration was insufficient to place defendants on notice that she claimed they were negligent in failing to advise her that her personal injury action was vulnerable to the trivial defect doctrine and that she should accept the arbitration award.
As the trial court astutely observed: "Plaintiff's claim that defendants failed to properly advise her about the trivial defect defense is a new theory of recovery, i.e. the failure to properly counsel her, resting on a fundamentally different factual basis than what was asserted in the complaint, i.e., shoddy preparation for the arbitration." Accordingly, the trial court properly concluded plaintiff was precluded from relying on this theory to defeat summary judgment and sustained defendants' objections to evidence submitted in support of that theory. (See AARTS Productions, Inc. v. Crocker Bank, supra, 179 Cal.App.3d at p. 1065.)
The Trial Court Did Not Abuse Its Discretion In Denying Plaintiff's Oral Request, Made at the Summary Judgment
Hearing, For Leave to Amend Her Complaint
Finally, plaintiff contends "[t]he trial court abused its discretion in denying [her] . . . oral motion, at the hearing, for leave to amend [her] complaint to allege that the lawyer defendants' negligent advice regarding the arbitration award induced [her] to reject the $85,000 award . . . ." We find no abuse of discretion.
"'"[T]he trial court has wide discretion in allowing the amendment of any pleading [citations], [and] as a matter of policy the ruling of the trial court in such matters will be upheld unless a manifest or gross abuse of discretion is shown. [Citations.]"' [Citation.] Nevertheless, it is also true that courts generally should permit amendment to the complaint at any stage of the proceedings, up to and including trial. [Citations.] But this policy applies '"only '[w]here no prejudice is shown to the adverse party.'"' [Citation.] Moreover, '"'even if a good amendment is proposed in proper form, unwarranted delay in presenting it may--of itself--be a valid reason for denial.'"' [Citations.] Thus, appellate courts are less likely to find an abuse of discretion where, for example, the proposed amendment is '"offered after long unexplained delay . . . or where there is a lack of diligence . . . ."' [Citation.]" (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 175.) Such is the case here.
On September 26, 2008, when defendants served and filed their summary judgment motion, plaintiff was on notice that defendants would defend against her malpractice action by arguing that she could not prevail in the action in which the malpractice allegedly occurred because the defect upon which that action was based was trivial as a matter of law. Nevertheless, plaintiff delayed in seeking leave to amend her complaint to allege defendants were negligent in failing to advise her that her personal injury action was vulnerable to the trivial defect doctrine until the summary judgment hearing on December 19, 2008, when it was clear the trial court was going to rule in defendants' favor. Plaintiff offered no explanation for the delay at the hearing. On appeal, she contends she did not act earlier because she believed such an allegation was encompassed in her complaint, and thus, there was no need to amend it. Plaintiff's mistaken belief does not excuse her failure to timely seek to amend her complaint. And even if it did, in their reply to plaintiff's opposition to the motion for summary judgment, filed a week before the hearing, defendants argued, among other things, that "[p]laintiff's argument that defendants rendered negligent advice is not relevant to the issues raised in this motion. . . . [P]laintiff may not defeat the motion by alleging new legal theories and facts which were not previously pled in the complaint or discovery responses." At that point, plaintiff knew the scope of her complaint was at issue. Nevertheless, plaintiff did not seek leave to amend her complaint, choosing instead to wait on the sidelines until it became clear at the hearing that the trial court intended to rule against her. Accordingly, she was not diligent in seeking to amend her complaint.
Plaintiff's assertion that defendants had prior notice that she claimed they were negligent in failing to advise her that her personal injury action was vulnerable to the trivial defect doctrine is not well taken. In response to a special interrogatory asking her to identify "each and every act or omission committed by COOPER which YOU contend supports YOUR action for legal malpractice," plaintiff responded, among other things, that "Cooper did not give me strong verbal or written advice to take the $85,000 arbitration award, though the existence of the two [physician] reports and the hallway tripping incident were well known to Esquina and those were the reasons Cooper mentioned, in September, for telling me I had no case." Plaintiff's response put defendants on notice that she claimed they were negligent in failing to tell her to accept the arbitration award based on Esquina's knowledge of her physician's reports and a prior tripping incident -- circumstances wholly unrelated to the trivial defect doctrine.
Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, cited by plaintiff for the proposition that "[r]equests for leave to amend after a motion for summary judgment has been made 'are routinely and liberally granted'" is of no assistance to plaintiff here. In that case, the court observed: "If either party wishes the trial court to consider a previously unpleaded issue in connection with a motion for summary judgment, it may request leave to amend." (Id. at pp. 1663-1664.) While the court noted that "[s]uch requests are routinely and liberally granted," it refused to find that the trial court in that case would have abused its discretion had it denied such a motion. (Id. at p. 1664, fn. 5.) To the contrary, the court noted that "[g]iven the trial court's discretion in ruling on a motion for leave to amend, plus the fact that [the plaintiffs] had waited until virtually the eve of trial before unveiling their new theories, we express no opinion as to whether such a motion for leave to amend would have had to be granted." (Ibid.)
While plaintiff in this case did not wait until the eve of trial before seeking leave to amend, she waited nearly three months after learning that defendants would defend against her malpractice action by arguing that she could not prevail in the action in which the malpractice allegedly occurred because the defect upon which that action was based was trivial as a matter of law before making her request. Moreover, her oral motion, brought at the summary judgment hearing, was procedurally deficient. A motion for leave to amend before trial must include a copy of the proposed amendment and a declaration specifying, among other things, when the facts giving rise to the amended allegations were discovered; and the reasons why the request for amendment was not made earlier. (Cal. Rules of Court, rule 3.1324(a)(1), (b)(3),(4).) Plaintiff's oral motion did not include either.
Finally, to the extent plaintiff relies on cases involving defects in the pleadings, those cases are inapposite. Plaintiff did not seek to cure a defect in her complaint; rather she sought to add a new legal theory. "[A]mendments are usually allowed after summary judgments have been filed only to repair complaints that are legally insufficient--in other words, those that would be subject to a motion for judgment on the pleadings. [Citations.] Appellants' proposed amendment would not cure a legally insufficient complaint, but rather, would state a different theory of recovery. Such an amendment is impermissible." (Van v. Target Corp. (2007) 155 Cal.App.4th 1375, 1387, fn. 2; see also Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 626.)
In sum, the trial court acted well within its discretion in denying plaintiff's request for leave to amend her complaint to add a new legal theory, made orally at the summary judgment hearing and based on facts known to defendant for nearly three months.*fn3
The judgment is affirmed. Defendants are entitled to their costs on appeal. (Cal. Rules of Court, Rule 8.278(a)(2).)*fn4
RAYE, P. J.