Balcal Construction, Inc. et al v. Reynolds Law, LLP et al

**at 9:30 a.m.** Balcal Construction, Inc. et al v. Reynolds Law, LLP et al 24CV001476

[1] DEFENDANTS REYNOLDS LAW LLP AND ALFONSO LUIS POIRE’S MOTION FOR SUMMARY JUDGMENT

TENTATIVE RULING: The motion is DENIED.

The moving party failed to include in the notice of this motion proper notice of the Court’s tentative ruling system as required by Local Rule 2.9. Moving party is directed to immediately provide, by telephone call AND email, the missing notice to opposing party/ies forthwith. The requirements for requesting oral argument under Local Rule 2.9 remain in effect. However, the Court may grant belated requests for oral argument or continuance of hearing, made by any party who represents it did not timely receive the required notice, regardless of whether or not moving party is present at the hearing.

A. PROCEDURAL MATTERS

Defendants Reynolds Law LLP and Alfonso Luis Poiré (collectively, “Defendants”) move, pursuant to Code of Civil Procedure section 437c,5 for an order granting summary judgment in favor of Defendants and against Plaintiffs Balcal Construction Inc., Cruz Calderon, and Maximino Ballines (collectively, “Plaintiffs”). Defendants so move “on the grounds on the grounds that each of Plaintiffs’ causes of action against Defendants in this action fail as Plaintiffs cannot establish the required elements of duty and breach because Plaintiffs claims are premised upon conduct by Defendants that met the professional standard of care, and Plaintiffs’ causes of action fail because Plaintiffs also cannot establish the required elements of causation or damages because they cannot prove that Plaintiffs would have obtained a better result in the underlying action.” (Notice of Motion, 2:8-13.)

B. LEGAL STANDARD

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit.” (§ 437c, subd. (a)(1).) The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “‘Material facts’ are facts that relate to the cause of action...that is the subject of the motion and that could make a difference in the disposition of the motion.” (Rules of Court, rule 3.1350(a)(2).)

The moving party also bears an initial burden of production. A moving defendant may satisfy this burden by making a prima-facie showing of either: a) the nonexistence of any triable issue of material fact relating to one or more elements of the plaintiff’s claims; or b) every element of an affirmative defense. “Summary judgment in favor of the defendant will be upheld when the evidentiary submissions conclusively negate a necessary element of the plaintiff’s cause of action or show that under no hypothesis is there a material issue of fact requiring the 5 All subsequent statutory references are to the Code of Civil Procedure, unless otherwise specified.

process of a trial.” (Biscotti v. Yuba City Unified School Dist. (2007) 158 Cal.App.4th 554, 557- 58.) “The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil & Brown, et al., Cal. Practice Guide: Civ. Proc. Before Trial (The Rutter Group 2021) § 10:241, p. 10-105; see also Guz v. Bechtel (2000) 24 Cal.4th 317, 334.) However, a defendant may also obtain summary judgment by affirmatively showing that plaintiff does not possess and cannot reasonably obtain evidence sufficient to establish an essential element – by, for example, admissions obtained through discovery that plaintiff is aware of no such evidence. (See Aguilar, supra, 25 Cal.4th at 855.)

If the party carries this burden, there is a shift and the opposing party is then subjected to a burden of production to make a prima-facie showing. (Id., at 850.) “In ruling on the motion, the trial court views the evidence and inferences therefrom in the light most favorable to the opposing party.” (Collin v. CalPortland Co. (2014) 228 Cal.App.4th 582, 588.)

C. DISCUSSION

The pleadings serve as the “outer measure of materiality” and “determine the scope of relevant issues on a summary judgment motion.” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Cal. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.)

The Complaint asserts two causes of action against Defendants. The First Cause of Action is for Legal Malpractice, and the Second Cause of Action is for Breach of Fiduciary Duty. Both causes of action are based on Defendants’ failure to exercise due care as Plaintiffs’ retained counsel in litigation filed against them by Louis Giraudo and Suzanne Giraudo on September 22, 2022 (“Underlying Action”). (See 8/26/24 Compl., ¶¶ 4, 10-11, 14-16.) Thus, both causes of action require Plaintiff to establish legal malpractice. (See Kracht v. Perrin, Gartland & Doyle (1990) 219 Cal.App.3d 1019, 1022 [“Where the injury is suffered by reason of an attorney’s professional negligence, the gravamen of the claim is legal malpractice, regardless of whether it is pled in tort or contract.”].)

To establish legal malpractice, a plaintiff must prove: “(1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney’s negligence.” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.)

Defendants argue that Plaintiffs cannot establish the element of breach because it is undisputed that Defendants met the professional standard of care.6 In support of their contention that there is no triable issue of material fact regarding breach, Defendants submit the following purportedly undisputed material facts: (1) “During the course of the Underlying Action, Mr. Poiré filed an Answer on behalf of BalCal Construction and worked with Plaintiffs to try and

6 While Defendants’ Notice of Motion contends that Plaintiffs cannot establish duty, their Memorandum appears to concede the existence of a duty to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in performing the tasks they undertake. (See Mem., 4:3-20.)

negotiate a settlement and/or obtain facts to support a cross-complaint by the Plaintiffs against the Giraudos,” and (2) “On July 18, 2023, several months prior to trial of the Underlying Action and before Mr. Poiré had received sufficient information and evidence from Plaintiffs to finalize a cross-complaint or complete settlement discussions, the Giraudos unilaterally filed a voluntary dismissal of the Underlying Action. Defendants received the notice of the voluntary dismissal on August 17, 2023.” (Separate Statement of Undisputed Material Facts (“UMF”) Nos. 4-5, citing evidence; see Mem., 5:2-8.)

Even assuming arguendo the cited evidence supports UMF Nos. 4-5, UMF Nos. 4-5 do not address all allegations of breach asserted in the Complaint. 7 For example, the Complaint alleges Defendants breached their standard of care by failing to immediately conduct discovery, promptly retain experts, keep Plaintiffs fully informed of the case, respond to Plaintiffs’ requests for information, promptly initiate a cross-complaint against the Giraudo’s for monies owed, promptly account and refund monies that were paid to Defendants but never earned, and notify Plaintiff’s insurance carriers to protect Plaintiff’s financial interest. (See Compl., ¶¶ 11(a)-(i), 16.)

As noted, the pleadings determine what issues are material in a summary judgment motion. Therefore, a moving party who does not address an issue in its summary judgment motion that was raised in the Complaint fails to meet its initial burden of showing Plaintiff’s action has no merit. (Hedayati v. Interinsurance Exchange of Automobile Club (2021) 67 Cal.App.5th 833, 846.)

Here, because Defendants have not addressed (and, therefore, have neither negated nor affirmatively shown that Plaintiffs do not possess and cannot reasonably obtain evidence sufficient to prove) all issues raised in the Complaint in support of Plaintiffs’ allegations of breach, Defendants have failed to meet their initial burden that there is no triable issue of material fact as to the element of breach.

Defendants next argue that Plaintiffs cannot establish causation or damages because there is no evidence that Plaintiffs would have obtained a better result in the Underlying Action and Plaintiffs did not lose any claims against the Giraudos as a result of Defendants’ representation. (Mem., 5:16-19.)

“In the legal malpractice context, the elements of causation and damage are particularly closely linked.” (Hecht, Solberg, Robinson, Goldberg & Bagley LLP v. Sup. Ct. (2006) 137 Cal.App.4th 579, 591 (Hecht).) “One who establishes malpractice on the part of his or her attorney in prosecuting a lawsuit must also prove that careful management of it would have resulted in a favorable judgment and collection thereof, as there is no damage in the absence of these latter elements.” (DiPalma v. Seldman (1994) 27 Cal.App.4th 1499, 1506-07.) The plaintiff has to show both that the loss of a valid claim was proximately caused by defendant attorney’s negligence, and that such a loss was measurable in damages. (Hecht, supra, 137 Cal.App.4th at 591.)

7 UMF No. 8 also appears to be included in support of Defendants’ argument as to breach. However, UMF No. 8 merely provides Defendants’ representation of what Plaintiffs’ Complaint alleges in terms of breach. A party moving for summary judgment cannot avoid issues raised in a Complaint by representing the allegations in a different manner as a purportedly undisputed material fact.

Plaintiffs do not dispute that they did not lose any claims against the Giraudos and that, after the Giraudos’ voluntary dismissal in the Underlying Action, Plaintiffs filed suit against the Giraudos in case no. 23CV001364, which matter is currently set for trial on October 26, 2026. (Plaintiffs’ Response to Defendant’s Separate Statement (“PSS”), No. 7.)

Defendants’ Separate Statement, however, includes no UMF regarding Plaintiffs’ purported lack of evidence showing that Defendants’ careful management of the Underlying Action would have resulted in a favorable judgment. (See generally UMFs.) Moreover, Defendants’ Memorandum does not argue that Plaintiffs do not possess and cannot reasonably obtain sufficient evidence thereon. Rather, Defendants’ argument seems to rest on the proposition that, because “the Giraudos had a statutory right to voluntarily dismiss their case,” and because the Giraudos voluntarily dismissed “[o]n July 18, 2023, several months prior to trial of the Underlying Action and before [Defendants] had received sufficient information and evidence from [the Giraudos] to finalize a cross-complaint or complete settlement discussions,” Plaintiffs could not have obtained a better result. (See Mem., 6:24-26; UMF No. 5.)

However, this argument disregards Plaintiffs’ claims that Defendants did not work expeditiously to file a cross-claim against the Giraudos prior to the Giraudos’ voluntary dismissal and, due to that, Plaintiffs suffered damages in the form of having to retain a new attorney and file new litigation, resulting in additional attorneys’ fees and potential loss of key evidence and testimony. (See Compl., ¶¶ 11-12, 15-16.) Again, Defendants’ Separate Statement includes no UMF to dispute that issue raised in the Complaint.

Thus, because Defendants have not addressed all issues raised in the Complaint in support of Plaintiffs’ allegations of causation and damages, Defendants have failed to meet their initial burden that there is no triable issue of material fact as to those elements.

Based on the foregoing, the motion is DENIED.

[2] DEFENDANT JAMES R. FORBES’ MOTION FOR SUMMARY JUDGMENT

TENTATIVE RULING: The motion is DENIED.

The moving party failed to include in the notice of this motion proper notice of the Court’s tentative ruling system as required by Local Rule 2.9. Moving party is directed to immediately provide, by telephone call AND email, the missing notice to opposing party/ies forthwith. The requirements for requesting oral argument under Local Rule 2.9 remain in effect. However, the Court may grant belated requests for oral argument or continuance of hearing, made by any party who represents it did not timely receive the required notice, regardless of whether or not moving party is present at the hearing.

A. PROCEDURAL MATTERS

Defendant James R. Forbes (“Defendant”') moves, pursuant to Code of Civil Procedure section 437c,8 for an order granting summary judgment in favor of Defendant and against Plaintiffs Balcal Construction Inc., Cruz Calderon, and Maximino Ballines (collectively, “Plaintiffs”). Defendant so moves “on the grounds that each of Plaintiffs’ causes of action against Defendant in this action fail as Plaintiffs cannot establish the required elements of duty and breach [because] Defendant never represented Plaintiffs in any capacity whatsoever.” (Notice of Motion, 2:8-10.)

B. LEGAL STANDARD

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit.” (§ 437c, subd. (a)(1).) The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “‘Material facts’ are facts that relate to the cause of action...that is the subject of the motion and that could make a difference in the disposition of the motion.” (Rules of Court, rule 3.1350(a)(2).)

The moving party also bears an initial burden of production. A moving defendant may satisfy this burden by making a prima-facie showing of either: a) the nonexistence of any triable issue of material fact relating to one or more elements of the plaintiff’s claims; or b) every element of an affirmative defense. “Summary judgment in favor of the defendant will be upheld when the evidentiary submissions conclusively negate a necessary element of the plaintiff’s cause of action or show that under no hypothesis is there a material issue of fact requiring the process of a trial.” (Biscotti v.

Yuba City Unified School Dist. (2007) 158 Cal.App.4th 554, 557- 58.) “The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil & Brown, et al., Cal. Practice Guide: Civ. Proc. Before Trial (The Rutter Group 2021) § 10:241, p. 10-105; see also Guz v. Bechtel (2000) 24 Cal.4th 317, 334.) However, a defendant may also obtain summary judgment by affirmatively showing that plaintiff does not possess and cannot reasonably obtain evidence sufficient to establish an essential element – by, for example, admissions obtained through discovery that plaintiff is aware of no such evidence. (See Aguilar, supra, 25 Cal.4th at 855.)

If the party carries this burden, there is a shift and the opposing party is then subjected to a burden of production to make a prima-facie showing. (Id., at 850.) “In ruling on the motion, the trial court views the evidence and inferences therefrom in the light most favorable to the opposing party.” (Collin v. CalPortland Co. (2014) 228 Cal.App.4th 582, 588.)

C. DISCUSSION

The Complaint asserts two causes of action against Defendant. The First Cause of Action is for Legal Malpractice, and the Second Cause of Action is for Breach of Fiduciary Duty. Both causes of action are based on Defendant’s failure to exercise due care as Plaintiffs’ retained counsel in litigation filed against them by Louis Giraudo and Suzanne Giraudo on September 22, 2022 (“Underlying Action”). (See 8/26/24 Compl., ¶¶ 4, 10-11, 14-16.) Thus, both causes of 8 All subsequent statutory references are to the Code of Civil Procedure, unless otherwise specified.

action require Plaintiff to establish legal malpractice. (See Kracht v. Perrin, Gartland & Doyle (1990) 219 Cal.App.3d 1019, 1022 [“Where the injury is suffered by reason of an attorney’s professional negligence, the gravamen of the claim is legal malpractice, regardless of whether it is pled in tort or contract.”].)

To establish legal malpractice, a plaintiff must prove: “(1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney’s negligence.” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.)

Defendant argues that Plaintiffs cannot establish the element of duty9 because it is undisputed that Defendant never established an attorney-client relationship with Plaintiffs, and never did any work on the matter at issue in this lawsuit. (Mem., 4:9-11.) In support, Defendant submits the following purportedly undisputed material facts: (1) Defendant never met anyone associated with Plaintiffs before the first deposition in this case, (2) Defendant never did any work on the underlying legal matter at issue in this case, (3) Defendant never billed Plaintiffs so much as a penny for work, and (4) Defendant never discussed the Underlying Action with Plaintiffs, with co-defendant Mr. Poire, or anyone, while it was a pending matter within Reynolds Law. (Separate Statement of Undisputed Material Facts (“UMF”) Nos. 1-4, citing evidence.)

Even assuming arguendo it can be said Defendant met his burden, Plaintiffs have met their burden to make a prima-facie showing that there is a triable issue of material fact as to the existence of Defendant’s duty.

Specifically, Plaintiffs show that they retained the law firm of Reynolds Law, LLP in connection with, at least, the Underlying Action and that the retention letter from Reynolds Law, LLP sent to Plaintiffs confirmed that the Underlying Action was being handled by attorneys Alfonso Poire and James R. Forbes. (Plaintiffs’ Response to Defendant’s Separate Statement (“PSS”), No. 1, citing Declaration of Cruz Calderon ¶¶ 7-9, Exh. 210; see also Plaintiffs’ Separate Statement of Additional Material Facts (“AMF”), No. 4.) Defendant does not dispute the foregoing. (Defendant’s Response to AMF, No. 4.) Instead, Defendant argues that an attorneyclient relationship cannot be created by one party’s unilateral declaration. (Ibid.; see also Reply, 2:9-11, citing Koo v. Rubio’s Restaurants, Inc. (2003) 109 Cal.App.4th 719, 729.)

Koo stands for the proposition that individuals cannot unilaterally create an attorneyclient relationship without the agreement of the attorney. Here, it is undisputed that there was an agreement between Mr. Poire on behalf of Reynolds Law LLP and Plaintiffs. (See Calderon Decl., Exh. 2.) The pertinent question, therefore, is whether the agreement by Mr. Poire on

9 The Court notes that the Motion is noticed on the ground that Plaintiffs also cannot establish breach. However, Defendant’s Memorandum and Reply only address the element of duty. (See Mem., 4:9-11 [“Only the first element, a duty owed by Forbes to Balcal, is an issue here ....”]; Reply, 2:5-6 [“Plaintiffs [] cannot establish the duty element of the cause of action ....”].) Thus, the Court’s analysis is limited to the element of duty. 10 Although the Cruz Calderon Declaration identifies the retention letter as Exhibit 2, the retention letter for the Underlying Action is attached as Exhibit 1 to Plaintiff’s Exhibit Log.

behalf of Reynolds Law LLP creates an attorney-client relationship between Plaintiffs and other attorneys with Reynolds Law LLP, specifically Defendant.

California courts have consistently answered that question in the affirmative. “Unless there is an agreement to the contrary, the retention of an attorney in a law firm constitutes the retention of the entire firm. (Streit v. Covington & Crowe (2000) 82 Cal.App.4th 441, 445, 98 Cal.Rptr.2d 193 [‘by retaining a single attorney, a client establishes an attorney-client relationship with any attorney who is a partner of or is employed by the retained attorney’]; see Rest.3d Law Governing Lawyers, § 14, com. h, p. 132 [‘Many lawyers practice as partners, members, or associates of law firms [citation].

When a client retains a lawyer with such an affiliation, the lawyer’s firm assumes the authority and responsibility of representing that client, unless the circumstances indicate otherwise’]; 1 Mallen & Smith, Legal Malpractice, supra, Vicarious Liability, § 5.3 at p. 546 [‘Unless there is a specific agreement to the contrary, the retention of one partner of a law firm is a retention of the entire firm, so that any attorney in the firm may perform services’]; 1 Vapnek et al., Cal. Practice Guide: Professional Responsibility (The Rutter Group 2006) ¶¶ 3:19, pp. 3–5 to 3–6 [‘Where a client retains a law firm ... the client's relationship extends to all members of the firm or organization’]; see also Blackmon v.

Hale, supra, 1 Cal.3d at p. 558, 83 Cal.Rptr. 194, 463 P.2d 418 [‘Although the [law] firm's records indicate that [the partners] regarded plaintiff as a client of [one partner] only, there is no evidence whatever that [the partners] ever informed plaintiff that [the partner] was not representing plaintiff as a member of the firm’].)” (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 392.)

Based on the foregoing, the motion is DENIED.

PROBATE CALENDAR – Hon. Joseph J. Solga, Dept. B (Historic Courthouse) at 8:30 a.m.

In the Matter of Irrevocable Special Needs Trust 21PR000283 For Jamie J. Cooper, Dated June 30, 2009

SPECIAL NEEDS TRUST – AMENDED PETITION FOR APPROVAL OF SECOND ACCOUNT, APPROVAL OF ATTORNEY’S FEES, APPROVAL OF TRUSTEES’ FEES; AND FOR SETTLEMENT THEREOF [Filed 4/9/26]

TENTATIVE RULING: The petition is GRANTED. The matter is set for a Third Accounting on August 22, 2028, at 8:30 a.m. in Dept. B. All accounting documents must be filed at least 30 days prior to the hearing. The Clerk is directed to send notice to the parties.

GUARDIANSHIP CALENDAR – Commissioner Douglas Skelton, Dept. 6 (Criminal Courts Bldg. – 1111 Third St.) at 2:00 p.m.

Guardianship of Arianna Mae Perez et al 26PR000117

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