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Smith v. Jordan Ramis Pc

United States District Court, S.D. California

February 11, 2014

MICHAEL L. SMITH, Plaintiff,


THOMAS J. WHELAN, District Judge.

Plaintiff Michael L. Smith is suing Defendants Douglas P. Cushing and Jordan Ramis PC for legal malpractice and fraud in connection with the preparation of a domestic-partnership agreement. Defendants have filed a motion for summary judgment or, alternatively, partial summary judgment. Plaintiff Smith opposes.

The Court decides the matters on the papers submitted and without oral argument. See Civ. L. R. 7.1(d.1). Because the undisputed facts establish that the case was filed after the statute of limitations expired, and Defendants did not misrepresent their qualifications nor did Plaintiff rely on any alleged misrepresentations, the Court will grant Defendants' summary-judgment motion [Doc. 24].


Plaintiff Michael L. Smith is an architect and entrepreneur. Defendant Douglas P. Cushing is an attorney with Defendant Jordan Ramis PC. Attorney Cushing practices in Portland, Oregon.

Beginning in approximately 2001, Smith retained Cushing and Jordan Ramis PC, then known as Jordan Schrader, to perform estate-planning work. ( Smith Dep., 23:14-18, 25:2-8.[1]) Thereafter, from time to time, Smith would retain Cushing to perform various transactional work.

In 2006, Smith and his partner, Christopher Wixom, decided to purchase a house together and move to San Diego, California. Smith asked Cushing if he could prepare a domestic partnership agreement ("DPA") and promissory note. ( Smith Dep., 30:7-15.) Cushing "said they could do that." ( Id., 30:20-24.) Cushing felt he could prepare the agreement because he had experience in preparing "prenup type agreements and had done one domestic partnership agreement, " and "had access... to California statutes." ( Cushing Dep., 51:6-10.[2]) He also viewed the preparation of the agreement as part of Smith's estate planning. ( Id., 11-29.)

Although Cushing was retained to prepare the DPA, Smith and Wixom "negotiated all the terms of the agreement, and... essentially gave them to" Cushing. ( Smith's Underlying Dep., 86:24-25.[3]) The final version of the agreement was executed on September 20, 2006. ( See Def.s' Ex. 15 [Doc. 24-8]; Pl's Resp. Sep. State. [Doc. 26-1], No. 10.)

In 2009, Smith and Cushing separated ( Smith Dep., 28:11), and Smith moved back to Washington. In January 2010, Smith spoke with Cushing about what Smith could claim as "combined living expenses" under the DPA. ( Cushing Dep., 136:7-137:21; Pl.'s Resp. Sep. State. [Doc. 26-1], No. 15.) Smith also asked Cushing to revise his will to remove Wixom. Cushing revised the will and sent the document to Smith, but Cushing did not hear back from him. ( Cushing Dep., 171:25-172:1; Pl's Resp. Sep. State., No. 16.) Meanwhile, Smith retained attorney Eugene Bruno and filed for dissolution of the domestic partnership on June 23, 2010. ( Smith Dep., 28:11-20; Bruno Dep., 20:15-17[4]; Def.s' Ex. C [Doc. 24-6]; Pl's Resp. Sep. State., No. 14.)

By mid 2010, Wixom began claiming the DPA was vague, and in approximately April or May of 2010, Bruno advised Smith that the DPA was vague. ( Smith Dep., 98:10-16; Bruno Dep., 78:10-24; Pl's Resp. Sep State., No.17.) As a result, Smith became unhappy with the quality of Cushing's legal work on the DPA. ( Smith Dep., 101:15-24.)

On August 20, 2010, Smith sent Cushing an email refusing to pay the law firm's billing statement and stating that the firm's "vague and badly written" DPA had caused him to incur additional legal fees:

I received another statement from your firm for services in July regarding the Domestic partnership (invoice 66168). Per our last conversation, I will not pay this invoice. I have been severely compromised because of the incompetence of whoever drafted my Domestic partnership. I suggested you talk to my California attorney, Eugene Bruno, to learn more about the lack of understanding of California law and how vague and badly the document was written. As a result, it is costing me additional legal fees in California and may end up in litigation which as you know, will be extremely costly.
I hope you can get to the bottom of why your firm allowed such a poorly written document to be created. I hope whatever you learn can help prevent this from happening to someone else.

( Defs.' Ex. 21 [Doc. 24-9]; Pl.'s Resp. Sep. State., No. 18.) After receiving the email, Cushing considered himself and the Jordan Ramis firm fired by Smith. ( Cushing Dep., 172:12-18, 184:20-185:4.) Cushing's firm never sent Smith another bill. ( Smith Dep., 100:18-101:14.)

In February 2011, Wixom filed a motion to declare the DPA invalid. ( Def.s' Ex. J [Doc. 24-7]; Pl's Resp. Sep. State., No. 20.) In March, Smith contacted Cushing to arrange for him to talk to Bruno and provide Bruno his notes. ( Smith Dep., 24:14-24, 95:23-96:17.) On March 31, 2011, Bruno sent a follow-up email to Cushing, requesting that Cushing call him regarding the DPA and promissory notes. ( Cushing Dep., 180:19-181:7.) During their subsequent telephone conversation, Bruno requested Cushing's file regarding the DPA, which Cushing sent. ( Cushing Dep., 181:17-20; Bruno Dep., 33:14-25, 34:16-22.) Aside from agreeing to send the file, Bruno testified that Cushing could not recall much about the DPA. ( Bruno Dep., 34:4-7.)

Bruno contends that he next talked to Cushing in approximately September 2011, in preparation for trial in the dissolution proceeding. ( Bruno Dep., 35:13-36:4.) During that conversation, Bruno alleges he told Cushing about the grounds Wixom was using to attack the DPA, and Bruno and Cushing "discussed any sort of help that [Cushing] could provide in terms of testimony." ( Id., 36:2-10.) However, Cushing did not "have a very good recollection of the events surrounding the creation of the" DPA. ( Id., 37:1-4.) Ultimately, Bruno decided not to call Cushing as a witness. ( Id., 36:11-14, 58:21-23.)

In October 2011, the family-law court in the dissolution proceeding found the DPA invalid. On approximately November 22, 2011, Bruno called Cushing and notified him that the DPA had been set aside, and that Cushing would be receiving a demand letter for damages on behalf of Smith. ( Bruno Dep., 55:14-56:3; Cushing Dep., 183:17-184:8.)

On June 25, 2012, Smith filed this legal-malpractice lawsuit in the San Diego Superior Court. ( Def.s' Ex. B [Doc. 24-6], at p. 19.) On August 16, 2012, Cushing removed the case to this Court. Cushing now seeks summary judgment or, in the alternative, summary adjudication based on two issues. First, Cushing argues Smith's legal-malpractice claims are barred by the 1-year statute of limitations. Second, Cushing argues the misrepresentation claims lack merit because there were no misrepresentations and Smith did not rely on any alleged misrepresentations.


Summary judgment is appropriate under Rule 56(c) where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986); Freeman v. Arpaio , 125 F.3d 732, 735 (9th Cir. 1997). A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson , 477 U.S. at 248.

A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex , 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. Id. at 322-23. "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n , 809 F.2d 626, 630 (9th Cir. 1987).

"The district court may limit its review to the documents submitted for the purpose of summary judgment and those parts of the record specifically referenced therein." Carmen v. San Francisco Unified Sch. Dist. , 237 F.3d 1026, 1030 (9th Cir. 2001). Therefore, the court is not obligated "to scour the record in search of a genuine issue of triable fact." Keenan v. Allen , 91 F.3d 1275, 1279 (9th Cir. 1996) (citing Richards v. Combined Ins. Co. , 55 F.3d 247, 251 (7th Cir. 1995)).

If the moving party meets its initial burden, the nonmoving party cannot defeat summary judgment merely by demonstrating "that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986); Triton Energy Corp. v. Square D Co. , 68 F.3d 1216, 1221 (9th Cir. 1995) (citing Anderson , 477 U.S. at 252) ("The mere existence of a scintilla of evidence in support of the nonmoving party's position is not sufficient."). Rather, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, ' designate specific facts showing that there is a genuine issue for trial.'" Celotex , 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)).

When making this determination, the court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. See Matsushita , 475 U.S. at 587. "Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, ...

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