Case Number: BC632464 Hearing Date: December 28, 2018 Dept: 56
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT
STANLEY M. TOY, JR.,
Plaintiff,
vs.
COVINGTON & CROWE, LLP, et al.,
Defendants.
CASE NO.: BC632464
[TENTATIVE] ORDER RE:
MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
8:30 a.m.
December 28, 2018
Dept. 56
This is an action in which Plaintiff alleges that Defendants committed malpractice in representing Plaintiff in the case styled Far Development, Inc. v. Toy, et al., BC406661 (“Underlying Action”). Specifically, Plaintiff alleges that because Defendants abandoned their representation of Plaintiff and failed to appear for trial, a default judgment was entered against Plaintiff. On August 21, 2016, Plaintiff filed the operative Complaint alleging causes of action for (1) legal malpractice, and (2) breach of fiduciary duty.
Defendants Justin M. Crane, Frank J. Lizarraga, Jr., and Lizarraga Law Firm APC move for summary judgment or, alternatively, summary adjudication of all causes of action as well as Plaintiff’s claim for punitive damages. Defendants argue that Plaintiff cannot prevail on his claims under the doctrine of collateral estoppel to the extent the court in the Underlying Action—in vacating the default judgment against Plaintiff—found that Defendants were not given proper notice of trial.
“Collateral estoppel precludes the relitigation of an issue only if (1) the issue is identical to an issue decided in a prior proceeding; (2) the issue was actually litigated; (3) the issue was necessarily decided; (4) the decision in the prior proceeding is final and on the merits; and (5) the party against whom collateral estoppel is asserted was a party to the prior proceeding or in privity with a party to the prior proceeding. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341, 272 Cal.Rptr. 767, 795 P.2d 1223.) Even if the minimal requirements for application of collateral estoppel are satisfied, courts will not apply the doctrine if considerations of policy or fairness outweigh the doctrine’s purposes as applied in a particular case (id. at pp. 342–343, 272 Cal.Rptr. 767, 795 P.2d 1223), or if the party to be estopped had no full and fair opportunity to litigate the issue in the prior proceeding.” (Zevnik v. Superior Court (2008) 159 Cal. App. 4th 76, 82.)
Here, the issue of whether Defendants were properly served with notice of trial was decided in the Underlying Action in connection with Plaintiff’s motion to vacate judgment; after an evidentiary hearing, the court vacated the subject default judgment, finding that Defendants were not properly served. This ruling was affirmed on appeal. (April 13, 2018, Remittitur.) Thus, the issue of trial notice was decided on the merits in favor of Plaintiff who is a party in the Underlying Action.
Plaintiff argues that the issue of Defendants’ malpractice has never been decided and that the issue of whether Defendants were properly served is not presented in the instant action.
While it is true that the issue of malpractice was not decided, the issue of whether Defendants were properly served with notice of trial is a component of Plaintiff’s claims for negligence and will undoubtedly be presented at trial. The Court will not allow this issue to be relitigated.
Plaintiff also appears to argue that the issues of negligence and damages are unresolved to the extent the default judgment in the Underlying Action was voidable, rather than void, requiring a showing of diligence by Defendants to be set aside. In support of this conclusion, Plaintiff points to various statements made by the court in the Underlying Action in issuing its ruling. (See Wilzig Decl., Exhibit 7.)
Plaintiff is incorrect. The failure to serve proper notice of trial renders a subsequent judgment obtained by default or an uncontested proceeding void. (Urethane Foam Experts, Inc. v. Latimer (1995) 31 Cal.App.4th 763, 767 [“Code of Civil Procedure section 594, subdivision (a) provides that a trial may not take place unless the adverse party was given at least 15 days of notice. This requirement is mandatory and jurisdictional; a judgment entered following a trial conducted in violation of the requirement is void.”].) Further, the court in the Underlying Action granted Plaintiff’s motion to vacate on the basis of Code Civ. Proc. § 473(d) which pertains to void judgments. (See, e.g., April 13, 2018, Remittitur.)
Based on the foregoing, Plaintiff cannot prevail on his claims. Indeed, Plaintiff’s claimed damages are as follows:
As a direct and proximate result of the aforesaid negligence of Defendants, Plaintiff has been subjected to having the referenced monetary judgment against him, having his cross-complaint dismissed, having his credit damaged by virtue of the judgment against him, suffered damage to his reputation, having been required to retain new counsel to attempt to overturn the judgment and reinstate his Cross-Complaint in the Lawsuit and has incurred and is incurring attorney’s fees and costs to vacate the judgment and reinstate his cross-complaint in the Lawsuit and in prosecuting this case.
(Compl. ¶ 21.) Because (1) Plaintiff is barred from arguing that Defendants were properly served with notice of trial, and (2) the default judgment in the Underlying Action was void, Plaintiff has failed to present triable issues as to whether his damages were caused by Defendants. First, the default judgment was void. Second, it has been vacated. Third, the Court is not aware of any authority in which an attorney was held liable for damages stemming from a judgment that was void on its face. Rather, Plaintiff’s additional costs incurred in vacating the judgment in the Underlying Action were caused, as a matter of law, by opposing counsel in the Underlying Action. This makes sense as the court in the Underlying Action considered awarding costs pursuant to Code Civ. Proc. § 473(c). (See Minute Order Dated November 21, 2016.)
Additionally, as Defendants point out, the element of causation for a malpractice action ordinarily requires a showing that but for counsel’s negligence, plaintiff would have obtained a more favorable judgment or settlement in the underlying action. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.) Plaintiff argues that he prevailed on a motion to dismiss a competing cross-complaint and that he successfully defended a motion to dismiss as to his own cross-complaint. First, it is not clear how or why this means Plaintiff prevailed on the merits of his cross-complaint. Second, to compound the confusion, on October 1, 2018, it appears the parties dismissed the entirety of the Underlying Action with prejudice.
In sum, because Plaintiff has failed to demonstrate triable issues of fact as to the element of causation, Plaintiff’s claims for malpractice and breach of fiduciary duty fail. The Motion for Summary Judgment is GRANTED.
Defendants are ordered to give notice of this ruling.
Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 28th day of December 2018
Hon. Holly J. Fujie
Judge of the Superior Court