The opinion of the court was delivered by: Blease,j.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...