Opinion
APPEAL from a judgment of the Superior Court of Los Angeles County., Jane L. Johnson, Judge. Los Angeles County Super. Ct. No. BC293423.
Leonard, Dicker & Schreiber, Richard C. Leonard and Steven A. Schuman for Plaintiff and Appellant.
Bird, Marella, Boxer, Wolpert, Nessim, Drooks & Lincenberg, Joel E. Boxer and Thomas V. Reichert for Defendant and Respondent.
ASHMANN-GERST, J.
Appellant Perpetual Eucharistic Adoration, Inc. (Perpetual) sued respondent Musick, Peeler & Garrett, LLP (Musick) for malpractice, claiming that Musick’s negligence resulted in Perpetual being deprived of about $7 million from the estate of Perpetual’s deceased founder, L. Owen Traynor (Owen). Musick moved for summary judgment, inter alia, on the grounds that Perpetual made an admission that Musick met the standard of care and therefore could not establish breach of that standard. Instead of offering conflicting evidence—such as an expert declaration establishing a breach of the standard of care—Perpetual opted to attack the admissibility of Musick’s evidence on limited grounds. The trial court granted summary judgment for Musick. Perpetual appeals, contending that the trial court erred when it found that Musick’s evidence was admissible. But this appeal lacks merit. Perpetual’s attack on the admissibility of Musick’s evidence cannot carry the day. And having chosen a strategy of attacking Musick’s evidence rather than submitting its own evidence—even though Perpetual could have submitted an expert declaration, as it repeatedly informs us in its appellate briefs—Perpetual is wed to its strategy. Therefore, there are no triable issues and summary judgment is affirmed.
Musick also moved for summary judgment, and prevailed, on the theory that Perpetual’s action was time-barred by Code of Civil Procedure section 340.6.
FACTS
The complaint
Owen died on December 2, 1997.
Previously, Owen engaged Musick to prepare his will and trust (principal trust), which bequeathed the benefit of the principal trust to his wife, Nancye Traynor (Nancye), during her lifetime. The principal trust divided Owen’s estate into three separate trusts: the marital trust, the exempt decedent’s trust, and the nonexempt decedent’s trust. Upon Nancye’s death, Owen intended for Perpetual to receive the bulk of the res from the nonexempt trust.
Paragraph 2.7(e) of the principal trust set forth a formula for how inheritance taxes would be paid upon Nancye’s death. But Nancye was given the power to avoid that formula by designating in her will that all inheritance taxes attributable to the marital trust, exempt decedent’s trust and nonexempt decedent’s trust would be paid according to her wishes.
Recognizing that its gift could be reduced or eliminated if Nancye required that all inheritance taxes be paid out of the nonexempt decedent’s trust instead of the other trusts, Perpetual filed a petition for construction and reformation of the principal trust to limit Nancye’s powers. Nancye filed a motion for summary judgment and prevailed; her powers were upheld.
Due to the probate court’s ruling, Perpetual settled with the other beneficiaries of Owen’s estate. Instead of receiving a bequest of approximately $9 million, Perpetual received only $2 million.
Perpetual sued Musick for legal malpractice, contending that it negligently drafted the principal trust contrary to Owen’s intent that Nancye not have the power to designate that inheritance taxes following her death be paid out of the nonexempt decedent’s trust.
Musick’s motion for summary judgment
In its motion for summary judgment, Musick argued that Perpetual could not establish that there was any kind of breach of the standard of care. Musick pointed out that when Nancye moved for summary judgment in the probate proceeding initiated by Perpetual, Perpetual submitted an expert declaration from Paul Frimmer (Frimmer), which opined that Musick drafted paragraph 2.7(e) of the principal trust pursuant to customary practice in estate planning. According to Musick, Frimmer’s expert opinion was either a party, adopted or authorized admission.
In the summary of its argument in its opposition, Perpetual stated: “[Musick] contends that [Perpetual’s] alleged admissions in the proceedings before the probate court defeat its malpractice claim in this action. [Musick] asserts that these alleged admissions are found in the Declaration of [Frimmer], a probate attorney whose expert declaration was submitted by [Perpetual] in support of [Musick’s] interpretation of the [principal trust] during the litigation between [Perpetual] and Nancye. . . . [The trial court] should reject this contention. The California Supreme Court’s holding in [Smith v. Lewis (1975) 13 Cal.3d 349 (Smith)], and the policy that attorneys should provide zealous representation for their clients, compel [the trial court] to hold that [Frimmer’s declaration]. . . is inadmissible.”
In the discussion section, Perpetual argued that Frimmer’s declaration was “inadmissible . . . for two separate reasons articulated by the court in Smith.” In Smith, the court held that an attorney’s Code of Civil Procedure section 473 affidavit of fault submitted in connection with an underlying action should not have been admitted against him in the subsequent malpractice action against him. The declaration should have been excluded under Evidence Code section 352 because it was more prejudicial than probative. The trial court also held that the use of such a declaration in a malpractice action is barred by public policy. In Perpetual’s view, Frimmer’s declaration was inadmissible for the same reasons.
At the hearing, Perpetual argued Smith. Then it argued that even if Frimmer’s opinion was admissible, “it doesn’t carry the day in a summary judgment motion because it’s just someone’s opinion.”
The trial court granted Musick’s motion. In its order, the trial court stated: “[Musick] moves for summary judgment on the ground that [Perpetual] cannot prove an essential element of its claim for legal malpractice in light of the admissions that it made in its argument and the expert testimony of its own expert offered in the underlying probate litigation. The [trial court] agrees.”
Judgment was entered for Musick.
This timely appeal followed.
STANDARD OF REVIEW
Summary judgment is proper where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s decision de novo. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
DISCUSSION
1. The standard of care.
Below, Musick offered Frimmer’s declaration as a party, adoptive or authorized admission pursuant to Evidence Code sections 1220 and 1221. In opposition, Perpetual cited Smith, contending that: (1) Frimmer’s declaration was inadmissible under Evidence Code section 352 because it was more prejudicial than probative and should have been excluded. (2) Frimmer’s declaration was inadmissible due to extrinsic public policy considerations. These two admissibility arguments were the only arguments advanced by Perpetual below.
On appeal, and against the preceding backdrop, Perpetual argues that Frimmer’s declaration is not a judicial or party admission, and that the declaration should have been excluded based on Evidence Code section 352 and public policy. Even if Frimmer’s declaration were admissible, Perpetual argues that it is irrelevant because Frimmer was ignorant of Owen’s intentions. The riposte from Musick is that Perpetual waived the bulk of its arguments by not raising them below. According to Musick, Perpetual is arguing for the first time that Frimmer’s declaration was not an evidentiary admission pursuant to Evidence Code sections 1220 and 1222, it was not a judicial admission, and even if it is an admission, it is irrelevant.
We turn to these issues.
a. The impact of certain appellate rules.
Because Perpetual did not argue to the trial court that Frimmer’s declaration failed to qualify as a judicial or party admission, and it did not argue that Frimmer’s declaration is irrelevant because he did not have all the facts, those arguments were waived. (Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486 [points not raised in the trial court are deemed waived].)
An appellate court presumes that the judgment appealed from is correct and adopts all intendments and inferences to affirm the judgment unless the record expressly contradicts them. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Brewer v. Simpson (1960) 53 Cal.2d 567, 583.) At the hearing, Perpetual stated that Frimmer’s declaration was “just someone’s opinion” and could not support summary judgment even if it was admissible. But Perpetual provided no legal analysis with reference to this point, and never argued that Frimmer’s declaration could not constitute an evidentiary admission under Evidence Code sections 1220 and 1221. Perpetual’s only properly raised legal argument focused on whether Frimmer’s declaration was admissible given the holding of Smith regarding Evidence Code section 352 and public policy. Thus, we must presume that his declaration was an evidentiary admission that supported summary judgment unless it was inadmissible on either of those two grounds. If it was admissible, we must affirm.
b. Smith and Evidence Code section 352.
Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” Expressly below and now tacitly on appeal, Perpetual argues that Evidence Code section 352 applies to summary judgment motions.
As well, Perpetual argues that public policy prohibits the admissibility of “statements made by a party. . . in prior litigation.”
Perpetual directs us to consider Smith.
In Smith, the facts were these. Lewis, an attorney, represented Smith in a divorce proceeding and advised her that she did not have an interest in her husband’s retirement benefits. (Smith, supra, 13 Cal.3d at p. 353.) After the final divorce decree was entered, Lewis filed a Code of Civil Procedure section 473 motion seeking to amend the decree, claiming that the retirement benefits of Smith’s husband were a community asset but were not so pleaded due to mistake, inadvertence, or excusable neglect. The motion was denied as untimely. Soon after, Smith sued Lewis for malpractice. At trial, Lewis’s declaration from the Code of Civil Procedure section 473 motion was admitted as an admission of a party opponent.
The court held that “defendant’s declaration . . . properly should have been excluded from evidence on the ground that it had insubstantial probative value [pursuant to Evidence Code section 352]. . . . Although the trial judge is traditionally accorded wide discretion in these matters [citation], the evidence here has dubious relevance to the issues in the lawsuit. Not only is the declaration conclusionary in form and nondescriptive of defendant’s actual conduct, but it was filed on behalf of plaintiff at her request and represents merely an effort by defendant to advance his client’s cause. In contrast to its probative value, the harmful effect of the declaration in the eyes of the jury was potentially significant. On its face the declaration, under oath, is manifestly a confession of error on the part of defendant. The jury possibly could have misunderstood its context or its purpose, or confused the quantum of asserted negligence necessary to permit the amendment of a judgment with that required to support a finding of malpractice. [¶] Furthermore, as is the case with offers of compromise and subsequent remedial conduct, extrinsic policy reasons exist for excluding the declaration from evidence. [Citation.] Were we to sanction the admissibility of such evidence, tension might develop between an attorney’s duty to zealously represent his client . . . and his instinct of self-protection. As a result, the attorney could become reluctant to seek an amended judgment under Code of Civil Procedure section 473, and the quality of legal representation in the state might suffer accordingly. In short, an attorney should be able to admit a mistake without subjecting himself to a malpractice suit. Therefore, we conclude, the trial court erred in admitting the declaration into evidence.” (Smith, supra, 13 Cal.3d at pp. 364–365, fn. omitted.)
Smith offers Perpetual no assistance. It applied Evidence Code section 352 to evidence offered at a jury trial, not to evidence submitted in support of a motion for summary judgment. Moreover, the extrinsic public policy identified in Smith has no application to this appeal. Frimmer’s declaration was not submitted in connection with a Code of Civil Procedure section 473 motion, he did not admit a mistake, and the declaration is not now being offered against him in a malpractice action to prove that he breached the duty of care.
2. Arguments raised for the first time in the reply brief.
In its reply brief, Perpetual asserts that Musick’s motion for summary judgment did not address the merits of the negligence action, namely, whether Musick breached the standard of care. Tacitly, it would seem, Perpetual suggests that this automatically means there are triable issues.
Procedurally, it is improper to advance an argument in a reply brief instead of an opening brief. “‘A point not presented in a party’s opening brief is deemed to have been abandoned or waived. [Citations.]’ [Citation.]” (Wurzl v. Holloway (1996) 46 Cal.App.4th 1740, 1754, fn. 1.) Give the belatedness of Perpetual’s reply argument, we need not consider it. On top of that, it bears mention that this argument was never presented to the trial court.
Academically, we reject Perpetual’s argument because it is incomplete.
Code of Civil Procedure section 437c, subdivision (o)(1) provides that a cause of action has no merit if “[o]ne or more of the elements of the cause of action cannot be separately established.” Citing this statute, our Supreme Court stated that “summary judgment law in this state no longer requires a defendant moving for summary judgment to conclusively negate an element of the plaintiff's cause of action. . . . All that the defendant need do is to ‘show[] that one or more elements of the cause of action . . . cannot be established’ by the plaintiff. [Citation.] In other words, all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action—for example, that the plaintiff cannot prove element X. Although he remains free to do so, the defendant need not himself conclusively negate any such element—for example, himself prove not X.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853–854, fns. omitted (Aguilar).) Once a defendant shows that a plaintiff cannot prove an element of its case, the burden shifts to the plaintiff to offer conflicting evidence. (Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 186.)
Musick was permitted to show that Perpetual could not prove a breach of the standard of care. In its notice of motion for summary judgment or, in the alternative, summary adjudication, Musick stated that “[Perpetual] cannot show that [Musick] breached any duty.” In its memorandum of points and authorities, Musick stated: “The question here, then, on [Perpetual’s] claim is whether [Perpetual] can establish that [Musick] did not meet [the standard of care] in drafting [paragraph 2.7(e) of the principal trust].” Musick went on to aver that the question was answered by Perpetual’s admission that Musick met its duty. The second issue in the Musick’s separate statement of facts stated: “[Perpetual] Has Admitted That [Musick] Did Not Breach Its Duty Of Care.”
Perpetual failed to explain why Code of Civil Procedure section 437c, subdivision (o)(1) and Aguilar do not apply.
We are told by Perpetual that Musick “did not move for summary judgment on the merits of the case. [Perpetual] did not oppose the motion on that basis, and the trial court did not rule on that basis.” We agree with both statements, but they do not provide Perpetual with any ammunition. As indicated, Musick was permitted to rely on Code of Civil Procedure section 437c, subdivision (o)(1) and show that Perpetual could not show a breach. In other words, Musick did not have to offer affirmative evidence that it met the standard of care. Next, Perpetual avers: “Clearly, [Perpetual] can produce an expert declaration stating that the Musick firm failed to meet the standard of care, and [Perpetual] fully intends to call an expert at trial. The sole reason that [Perpetual] did not attach a declaration to the opposition is that the motion did not address the standard of care.” This elucidates Perpetual’s problem. It put all of its eggs into one basket. Its sole strategy below was to argue that Frimmer’s declaration was inadmissible and that, accordingly, Musick did not shift the burden. As a precautionary measure Perpetual could have submitted an expert declaration in case the trial court determined (as it did) that Musick did shift the burden. But Perpetual chose not to. Having chosen this strategy, Perpetual must live with it.
Next, Perpetual argues that the second and third issues in Musick’s motion “assert that [Perpetual] is not entitled to litigate the issue of the standard of care because of statements made and positions taken in the [prior probate action]. Neither of those issues, as framed by the moving papers and separate statement, questioned the standard of care.” True enough. But again, the strategy employed by Musick fell within the parameters of Aguilar.
At oral argument, Perpetual argued that breach of the duty of care was never at issue below. In its view, Musick never said that Perpetual was unable, per se, to establish a breach. But the import of Musick’s arguments involving the admission from the probate action was, in fact, exactly that Perpetual was legally barred from proving its case. According to Perpetual, Musick never shifted the burden of proof as to breach of the duty of care because all it argued was judicial estoppel, judicial admission and statute of limitations. Simply put, semantics do not change the substance of what transpired. The admission argument did in fact shift the burden. Perpetual suggested that Musick had to submit an expert declaration or other admissible evidence to affirmatively negate liability. We do not agree. And even if we did, Frimmer’s statements would have satisfied that burden. Perpetual opined that for Musick to prevail on the duty of care, it had to identify as one of the issues addressed by the motion that there was no breach of the standard of care. That flatly contradicts Code of Civil Procedure section 437c, subdivision (o)(1). It was sufficient for Musick to argue, as it did, that breach could not be established. Perpetual’s defense was basically that Musick never attacked the standard of care on the merits. Further, Perpetual suggested it was a “word game” to equate Musick’s motion with a motion that tried to negate the breach element. In essence, Perpetual tries to narrow the summary judgment statute. This is an invitation to rewrite the Legislature’s language. We have no authority to do so. Under the law, a moving party can rely on the opponent’s factually devoid discovery responses. (Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1439.) Or, as here, a defendant could argue that a plaintiff’s admission bars the plaintiff from offering contrary evidence to establish an element of its cause of action.
A telling statement by Perpetual is this one: “Apparently, [Musick] now argues that [the admission issue] raised the standard of care and compelled [Perpetual] to come forward with evidence on the merits.” This statement suggests that Musick misapprehends the law, presuming that the summary judgment statute is equivalent to what the law was prior to 1992. But in 1992, Code of Civil Procedure section 437c was amended to permit Musick’s type of motion. In summary, Musick’s motion required Perpetual to “come forward with evidence on the merits” if Musick shifted the burden. The trial court found that the burden was shifted.
All other issues raised by the parties are moot.
DISPOSITION
Summary judgment is affirmed.
Musick shall recover its costs on appeal.
We concur: BOREN, P. J., CHAVEZ, J.