Lico v. Hopkins & Carley CA1/5

Filed 9/22/14 Lico v. Hopkins & Carley CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

BETH ANN LICO, Plaintiff and Appellant, A140385 v. HOPKINS & CARLEY LLC et al., (San Mateo County Super. Ct. No. CIV508693) Defendants and Respondents.

Plaintiff and appellant Beth Ann Lico (appellant) filed a legal malpractice action against defendants and respondents Hopkins & Carley LLC and Jennifer Cunneen (Attorneys). The trial court granted Attorneys’ motion for summary judgment. We affirm. BACKGROUND In 2002, Attorneys assisted appellant and her former husband, Steven Lico, in the preparation of an estate plan. As part of the plan, the Lico Family Revocable Trust (“Trust”) was created. At the time, Mr. Lico held separate property interests in business entities. Appellant and Mr. Lico executed a Community Property Agreement (“Transmutation Agreement” or “Agreement”), prepared by Attorneys, under which Mr. Lico’s separate property interests in the business entities were transmuted into community property interests in the Trust. This resulted in appellant holding a community property interest in the business entities. Attorneys did not provide legal services to appellant after 2002.

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In October 2006, appellant filed a Petition for Dissolution of Marriage in San Mateo County Superior Court. The Superior Court appointed Neville K. Spadafore as “Temporary Judge” to preside over the dissolution. During those proceedings, Mr. Lico challenged the Transmutation Agreement, claiming he had not understood the full legal consequences when he signed it. He argued the Agreement was unenforceable. The dissolution court bifurcated the issue for determination in advance of the other issues in the proceeding. Over several days in September and October 2007, the court held a trial to determine whether “the property transmutations created by the Licos’ execution of their estate planning documentation on December 3, 2002 [should] be enforced by the Court or … be found to be unenforceable pursuant to applicable equitable and legal principles of California Law.” On January 25, 2008, the dissolution court filed its “Statement of Decision Re Validity/ Enforceability of Transmutation of Property” (“January 2008 Decision”), finding the Transmutation Agreement was unenforceable. The court found that, due to Attorneys’ omissions, Mr. Lico did not understand the legal effect of the estate planning documents he signed. The court held that each party’s separate property interests, which were otherwise transmuted into community property pursuant to the Transmutation Agreement, were reconfirmed back to each party as separate property. The court stated, “[t]he substance of this Statement of Decision will ultimately be incorporated into the” dissolution judgment, but the court also indicated a willingness to “certify the matter for independent appeal, as the issue . . . was determined pursuant to bifurcation for separate trial in advance of the disposition of all other outstanding dissolution of marriage issues in this case.” There was no such independent appeal. In 2007 and 2008, appellant incurred over $120,000 in attorney’s fees and costs litigating the Transmutation Agreement’s enforceability. Following the January 2008 Decision, appellant removed from her income and expense declaration any reference to ownership interests in the partnerships that had been included in the Agreement.