HERRERA, et al. vs GWILLIAM, IVARY, CHIOSSO, CAVALLI & BREWER, A CALIFORNIA PROFESSIONAL CORPORATION, et al.

24CV081395: HERRERA, et al. vs GWILLIAM, IVARY, CHIOSSO, CAVALLI & BREWER, A CALIFORNIA PROFESSIONAL CORPORATION, et al. 07/23/2026 Hearing on Motion for Summary Judgment filed by JOHN GARY GWILLIAM, an individual (Defendant) + CRS# 838479682303 in Department 512

Tentative Ruling - 07/22/2026 Elizabeth Riles

The Motion for Summary Judgment/Adjudication filed by JOHN GARY GWILLIAM, an individual, GWILLIAM, IVARY, CHIOSSO, CAVALLI & BREWER, a California professional corporation, JAYME L. WALKER, an individual on 04/01/2026 is Denied.

Defendants Gwilliam, Ivary, Chiosso, etc.’s (“Gwilliam Firm”), John Gary Gwilliam’s and Jayme Walker’s (“Walker”) (collectively, Gwilliam Defendants”) Motion for Summary Judgment or in the alternative Motion for Summary Adjudication (“MSJ/MSA”) is DENIED in its entirety.

This is an attorney malpractice action. Plaintiffs Jess Herrera and Susan Herrera (“Plaintiffs”) alleged in an underlying lawsuit that Jess Herrera (“Mr. Herrera”) was seriously injured when the water filter of their home’s swimming pool exploded. Gwilliam Defendants represented Plaintiffs in that underlying action. Ultimately, Plaintiffs agreed to a settlement of the underlying case in the amount of $2.7 million against defendant water filter manufacturers. Plaintiffs allege they agreed to this settlement, which was less than the $5 million-plus reasonable settlement value they allege, because the Gwilliam Defendants improperly gave Plaintiff’s retained expert witnesses underlying defendants’ confidential mediation briefs, leading underlying defendants to file motions in limine at the start of trial to exclude Plaintiffs’ expert witnesses from testifying and also because the Gwilliam Defendants failed to keep Plaintiffs reasonably informed to make an informed decision on underlying defendants’ $2.7 million settlement offer. (See Plaintiffs’ Second Amended Complaint at Gwilliam Defendant’s Index of Exhibits (“DIOE”) at Exh.

E.)

ANALYSIS OF MSJ/MSA

Plaintiffs’ operative Second Amended Complaint alleges three causes of action for respectively: (1) Legal Malpractice; (2) Breach of Fiduciary Duty; and (3) Breach of Retainer Agreement. (Ibid.)

Gwilliam Defendants contend that Plaintiffs cannot show that a reasonable Court would have granted underlying defendants’ two motions in limine to bar Plaintiffs’ expert witnesses from testifying at trial or that the Gwilliam Defendants’ sharing of the mediation briefs with the expert witnesses left Plaintiffs with no choice but to settle the underlying lawsuit for less than it was worth.

The moving Separate Statement presents two issues regarding which Gwilliam Defendants seek summary adjudication such that if the issues are granted Gwilliam Defendants will be entitled to summary judgment. Therefore, the Court elects to address these issues first. 24CV081395: HERRERA, et al. vs GWILLIAM, IVARY, CHIOSSO, CAVALLI & BREWER, A CALIFORNIA PROFESSIONAL CORPORATION, et al. 07/23/2026 Hearing on Motion for Summary Judgment filed by JOHN GARY GWILLIAM, an individual (Defendant) + CRS# 838479682303 in Department 512 As to Issue No. 2 in the moving Separate Statement, the Court finds that Plaintiffs effectively dispute Fact No.

4. Gwilliam Defendants argue that Plaintiffs were reasonably required to inquire from their counsel whether the underlying defendants’ Motions in Limine (“MILs”) had a reasonable possibility of success before deciding to accept underlying defendants’ existing settlement offer. The Court finds that the evidence does not support such a finding.

The record indicates that Walker first advised Plaintiffs of the MILs in an email dated 3/12/2024 at 9:23 p.m. (DIOE Exhs. K and M.) The moving Separate Statement contains no other reference to evidence that the Court could locate showing that Plaintiffs learned of the issue of Walker providing Plaintiffs’ expert witnesses with underlying defendants’ privileged mediation statements prior to this late evening 3/12/2024 email.

Walker’s 3/12/2024 email states in relevant part:

“We continue to strongly recommend that you all settle this case. We believe there is a strong chance you could lose the case. If you lose the case, you will be responsible to pay the defense court costs. These could be in the range of $50,000.”

The Court observes that Walker’s 3/12/2024 email does not reference why the San Joaquin County court might exclude Plaintiffs’ expert witness testimony and the email contains information regarding other evidentiary rulings made by the court that would be unfavorable to Plaintiffs’ case at trial. However, on summary judgment or adjudication only the opposing party is entitled to all reasonable inferences, while the moving party’s evidence is strictly construed. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 470; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) Walker’s 3/12/2024 email contains no statement as to the likelihood of the court granting or denying the MILS to exclude Plaintiffs’ expert witnesses from testifying at trial.

The moving evidence further shows that on 3/13/2024 at 12:10 p.m., apparently during a lunch break from court proceedings, Walker sent Mrs. Herrera a text message stating in relevant part:

“We are having another bad day in court. The judge is supposed to come back and rule whether our liability experts (manning [sic] and Holmer) can testify. If he excludes them – I can’t emphasize enough how bad that would be.” (DIOE Exh. N.)

There is no evidence in the moving record that at any time later Walker advised Plaintiffs that the underlying defendants’ MILs had a poor chance of success.

It is reasonably clear from the record that Plaintiffs made the decision to accept the $2.7 million settlement shortly after receiving Walker’s 3/13/2024 at 12:10 p.m. text message. Another text message later that day from Walker to Mrs. Herrera stating that Gary, presumably defendant John Gary Gwilliam, advised that Plaintiffs should wait until the morning of 3/14/2024 so that

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

24CV081395: HERRERA, et al. vs GWILLIAM, IVARY, CHIOSSO, CAVALLI & BREWER, A CALIFORNIA PROFESSIONAL CORPORATION, et al. 07/23/2026 Hearing on Motion for Summary Judgment filed by JOHN GARY GWILLIAM, an individual (Defendant) + CRS# 838479682303 in Department 512 Plaintiffs could appear in court to put the settlement on the court record. (Ibid.) There is no evidence that the court ruled on the MILs later on 3/13/2024, suggesting that Gwilliam Defendants had informed the court and underlying defendants that Plaintiffs intended to accept the outstanding $2.7 million settlement offer.

A reasonable jury considering this evidence could find that Walker’s 3/13/2026 text message essentially told Plaintiffs they needed to settle the underlying action immediately or risk the likely possibility that the court would grant the MILs later that day, an outcome that Walker stated she could not emphasize enough how bad that would be to Plaintiffs’ case. A reasonable jury could find that the mistake the Gwilliam Defendants had made in providing the mediation materials to Plaintiffs’ experts and implicitly failing to advise the experts they could not rely on those materials in forming their expert witness opinions, resulted in the MILs.

A reasonable jury could also find that Walker used the MILs as a reason why Plaintiffs should settle the underling action post haste. In these circumstances, a reasonable jury could conclude that it was the Gwilliam Defendants’ responsibility to advise Plaintiffs of the reasonable likelihood whether the MILs would be granted, rather than Plaintiffs’ responsibility to inquire. (See Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1683-1684, stating in relevant part: “Liability can exist because the attorney failed to provide advice.

Not only should an attorney furnish advice when requested, but he or she should also volunteer opinions when necessary to further the client's objectives. The attorney need not advise and caution of every possible alternative, but only of those that may result in adverse consequences if not considered.”)

Further, the Court finds that there is sufficient foundation based on his curriculum vitae for attorney Glickman’s expert witness opinion regarding the value of Plaintiffs’ claims in the underlying lawsuit, which Glickman opines to be more than $5 million. (Plaintiffs’ Compendium of Exhibits (“PIOE”) Exhs. 38-39.) Gwilliam Defendants may certainly challenge the basis for Glickman’s anticipated expert witness testimony at deposition or at trial.

Wherefore, the Court DENIES Gwilliam Defendants’ MSJ and alternative MSA.

The Court SUSTAINS Gwilliam Defendants’ Reply Objections Nos. 1-4, 6 and 7 and OVERRULES Gwilliam Defendants’ Reply Objections Nos. 5 and 8-11 to the Glickman Declaration. There is inadequate foundation in the Glickman Declaration for his purported expertise regarding whether the Gwilliam Defendants’ decision to provide the underlying defendants’ mediation documents to Plaintiffs’ expert witnesses fell below the level of professional competence, which in any event appears to be a question of law. (See Evidence Code §§ 801, 1119; Fox v. Kramer (2000) 22 Cal.4th 531, 540; Simmons v. Ghaderi (2008) 44 Cal.4th 570, 581-582.)

The Court OVERRULES Gwilliam Defendants’ Reply Objections Nos. 12-15, 17 and 18. Where a party asserts a written objection that a later declaration directly contradicts prior deposition testimony, the objection must cite to the specific deposition testimony that directly contradicts

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

24CV081395: HERRERA, et al. vs GWILLIAM, IVARY, CHIOSSO, CAVALLI & BREWER, A CALIFORNIA PROFESSIONAL CORPORATION, et al. 07/23/2026 Hearing on Motion for Summary Judgment filed by JOHN GARY GWILLIAM, an individual (Defendant) + CRS# 838479682303 in Department 512 the later declaration. It is not the responsibility of the Court to search through a voluminous record to see if any the declarant’s prior deposition testimony is directly contradictory to the fact declared in the later declaration.

The Court SUSTAINS Gwilliam Defendants’ Reply Objections No.

16.

The Court SUSTAINS Gwilliam Defendants’ Reply Objections No.

19.

The Court advises the parties that defects in their respective papers made it unduly timeconsuming for the Court to review the parties respective voluminous papers, and, as such, constitute a misuse of the Court’s limited judicial resources. Local Rule 3.30(c) requires parties to provide paper courtesy copies to Dept. 512 of all papers filed with the Court, which paper courtesy copies must comply with all applicable Cal. Rules of Court intended to expedite the Court’s review of the type of voluminous papers filed for and against the present dispositive motion.

Dept. 512 has been unable to locate paper courtesy copies of Plaintiffs’ Opposition papers, including most notably the 794-page PIOE. Although Gwilliam Defendants provided paper courtesy copies, the more than 500-page DIOE does not comply with CRC Rule 3.1110(f)(3), making it unnecessarily time-consuming for the Court to locate specific exhibits. Further, where, as here, an index of exhibits contains twenty-eight exhibits totaling more than 500 pages, citations to evidence in the moving Separate Statement should start with the Exhibit Number and the specific page (and if appropriate line) number of the Exhibit containing relevant evidence supporting the moving undisputed material facts.

Although the Separate Statement may also state the title of the Exhibit, it is a misuse of the Court’s limited resources to make it search needlessly for relevant evidence, either in the Separate Statement or in the index of the DIOE.

CONTESTING TENTATIVE RULINGS

PLEASE NOTE: If any party contests the tentative ruling, the hearing on the motion will occur remotely via the court's own video-conferencing system.

Pursuant to California Rule of Court 3.1308, subdivision (a)(1), this tentative ruling will become the order of the Court unless it is contested before 4:00 PM on the court day preceding the noticed hearing date.

To contest a tentative ruling, a party should do the following:

First, the party must notify Department 512, by email at Dept512@alameda.courts.ca.gov and copy all counsel of record and self-represented parties. The contesting party must state in the subject line of the email the case name, case number and motion.

Second, the party shall log into the eCourt Public Portal, search for this case (e.g., by case number), select the case name, select the "Tentative Rulings" tab, click the "Click to Contest this

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

24CV081395: HERRERA, et al. vs GWILLIAM, IVARY, CHIOSSO, CAVALLI & BREWER, A CALIFORNIA PROFESSIONAL CORPORATION, et al. 07/23/2026 Hearing on Motion for Summary Judgment filed by JOHN GARY GWILLIAM, an individual (Defendant) + CRS# 838479682303 in Department 512 Ruling" button, enter the party's name and a brief statement of the party's reason for contesting the tentative, and click "Proceed."

Parties may appear via videoconference, using the Zoom.com website or application.

TO CONNECT TO ZOOM:

Join the meeting using the following link: https://www.zoomgov.com/j/16057661931 Join the meeting by Phone:

Meeting ID: 160 5766 1931

1 669 254 5252, 16057661931# US (San Jose) 1 669 216 1590, 16057661931# US (San Jose) 833 568 8864 US Toll-free