Urick v. Lewitt, Hackman, Shapiro, Marshall & Harlan CA2/4 ( 2022 )

Filed 5/23/22 Urick v. Lewitt, Hackman, Shapiro, Marshall & Harlan CA2/4
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
DANA URICK, B312238
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 20VECV00342)
LEWITT, HACKMAN, SHAPIRO,
MARSHALL & HARLAN, et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Huey P. Cotton, Judge. Affirmed.
M. Renee Orth for Plaintiff and Appellant.
Yee & Associates, Steven R. Yee, and James H. Tarter
for Defendants and Respondents.
INTRODUCTION
Appellant Dana Urick served as the trustee of her late
mother’s trust.1 The trust agreement provided that, for a set
period of time, Dana, her brother Willis, and her son
Trentyn, would each receive annual interest payments from
the trust, after which the remaining principal would be
distributed to Phillips Academy Andover (Phillips Academy).
The trust also contained a no contest clause. Dana
subsequently petitioned to reform the trust to eliminate
Willis and potentially Phillips Academy as beneficiaries.
This reformation petition was drafted and filed by
respondent attorney Kira Masteller of respondent Lewitt,
Hackman, Shapiro, Marshall & Harlan (collectively, Lewitt
Hackman) in 2016.
Willis contested the reformation petition and claimed
Dana had triggered the no contest clause by filing it without
probable cause. Dana retained new counsel in 2016 to
defend against Willis’s claims. In October 2017, Division
Five of this court reversed the grant of Dana’s anti-SLAPP
motion, finding Willis had made a prima facie showing (a)
that the petition had been filed in Dana’s capacity as a
beneficiary, thus potentially triggering the no contest clause,
and (b) that her petition constituted a direct contest, filed
without probable cause. In January 2020, the probate court
1 Because several of the individuals discussed herein share a
surname, we refer to them by their first names.
2
suspended Dana as trustee, after finding the filing of the
reformation petition breached her fiduciary duty as trustee.
In March 2020, Dana sued Lewitt Hackman, alleging
seven acts of malpractice, including the failure to advise her
regarding her fiduciary duties as a trustee, or to inform her
that filing the reformation petition could violate those
duties. Lewitt Hackman demurred, arguing that Dana’s
claims were barred by the statute of limitations because she
sustained actual injury from any malpractice more than a
year prior to her lawsuit. Dana countered that she did not
sustain actual injury until the probate court suspended her
as trustee. The trial court sustained the demurrer and Dana
appealed. While the appeal was pending, the probate court
found that Dana had brought the petition as a beneficiary
and without probable cause, triggering the no contest clause;
Dana was disinherited.
On appeal, Dana does not contend the trial court erred
in sustaining Lewitt Hackman’s demurrer as to six of the
seven acts of malpractice alleged in her operative complaint.
As to the remaining act -- allegedly misadvising her as to her
fiduciary duties as trustee -- Dana contends the court erred
in finding she sustained actual injury more than a year
before she filed suit. For the first time on appeal, she also
argues she did not discover Lewitt Hackman’s malpractice
until the probate court suspended her as trustee. Finally,
she requests that we grant her leave to amend to allege that
Lewitt Hackman committed additional malpractice by filing
a reformation petition that lacked probable cause.
3
We conclude the trial court did not err in sustaining
the demurrer because Dana both sustained actual injury and
knew, or should have known, of Lewitt Hackman’s alleged
malpractice more than a year before she filed suit. We
additionally conclude that the proposed amendment would
suffer from the same fatal defect. We therefore affirm.
STATEMENT OF RELEVANT FACTS
A. Background
1. Allyne Establishes a Trust
In March 2013, Allyne Urick executed the Allyne L.
Urick Trust Agreement. As explained by the court in Urick
v. Urick (2017) 15 Cal.App.5th 1182, “The trust was
structured as a charitable remainder annuity trust, which
pays a fixed amount of income to the donor’s beneficiaries
and gives the remainder to a charity. At Allyne’s death,
after certain payments and distributions from the trust
estate, the remaining trust principal would be annuitized
and the income distributed in equal shares to Willis, Dana,
and Dana’s son Trentyn Urick-Stasa. Upon termination of
the annuity, the remaining principal would be distributed to
Phillips Academy Andover, ‘In Memory of Willis E. Urich,
Jr., Class of 1934.’” (Id. at 1186.) In January 2014, Allyne
4
wrote a note disinheriting Willis, but did not sign it. (Ibid.)2
In August 2014, Allyne executed the “Amendment and Full
Restatement of the Allyne L. Urick Trust Agreement,”
which, like the 2013 trust agreement, was a charitable
remainder annuity trust. It provided that after certain
payments and distributions, the principal would be
annuitized and the income generated would be distributed in
equal shares to Willis, Dana, and Trentyn for a period of
time, after which the remaining principal and any
undistributed income would be distributed to Phillips
Academy, in memory of Willis E. Urick, Jr. (Id. at
1187-1189.) The trust agreement contained a no contest
clause, providing that should any beneficiaries contest any
provision of the trust, they would have their rights under the
trust determined as if they had predeceased the execution of
the trust without living issue. (Ibid.) After Allyne’s death,
Dana would be the successor trustee of the trust. (Ibid.)
2. Dana Seeks to Reform the Trust
Allyne died in August 2015. (Urick v. Urick, supra, 15
Cal.App.5th at 1187.) In February 2016, represented by
Lewitt Hackman, Dana filed a reformation petition, asking
the probate court to alter the terms of the trust so that after
distributing specific bequests and personal property, all the
2 Although Allyne’s lawyer sent her amendments to the trust
agreement effectuating this disinheritance, Allyne did not sign
them.
5
remaining principal would be divided into two shares -- one
for Dana and one for Trentyn. (Id. at 1187-1188.) After
being held in trust for 10 years, the assets would be
distributed outright to Dana and Trentyn. (Id. at 1188.) If
neither survived, the assets would be distributed equally to
four institutions, one of which was Phillips Academy.
(Ibid.)3 While the petition noted that it was brought by
“Dana Urick, Trustee of The Allyne L. Urick Trust,” neither
the attorney caption, nor the signature block, nor the
verification of the petition, stated that Dana was bringing
the petition in her role as trustee. (Ibid.)
In May 2016, Willis petitioned the probate court to
decide whether Dana’s filing of the reformation petition
triggered the trust’s no contest clause as a direct contest to
the trust lacking probable cause. (Urick v. Urick, supra, 15
Cal.App.5th at 1189.) Dana, represented by new counsel,
responded by filing an anti-SLAPP motion, arguing the court
should dismiss Willis’s petition because her reformation
petition constituted protected litigation activity, and Willis
could not show a probability of prevailing as, among other
reasons, she filed the reformation petition in her capacity as
trustee. (Ibid.) Willis opposed the motion, arguing that
Dana had filed the petition as a beneficiary, and the petition
3 “No mention was made of the distribution to Phillips
Academy being in memoriam.” (Urick v. Urick, supra, 15
Cal.App.5th at 1188.)
6
lacked probable cause.4 (Ibid.) Without reaching the issue
of probable cause, the probate court granted the anti-SLAPP
motion, finding Dana had brought the petition as a trustee.
(Urick v. Urick, supra, at 1190-1191, 1197, fn. 5.)
In October 2017, our colleagues in Division Five
reversed, finding that Willis had provided “ample evidence”
showing Dana had filed the petition as a beneficiary, and not
a trustee.5 (Urick v. Urick, supra, 15 Cal.App.5th at 1195,
1199.) The court additionally found prima facie evidence
that the petition, which contained allegations of
misrepresentation and nondisclosure by Allyne’s attorney,
4 “A no contest clause shall only be enforced against” certain
types of contests, including “(1) A direct contest that is brought
without probable cause.” (Prob. Code, § 21311, subd. (a).) A
“Direct contest” is one which “alleges the invalidity of a protected
instrument or one or more of its terms, based on one or more of
the following grounds: [¶] . . . [¶] (4) Menace, duress, fraud, or
undue influence.” (Prob. Code, § 21310, subd. (b).)
5 The appellate court found that the petition referred to
Dana as a trustee only once, “while every other reference to
Dana, and the petition as a whole, was consistent with her
interest as a beneficiary.” (Urick v. Urick, supra, 15 Cal.App.5th
at 1195-1196.) The court also pointed out the attorney caption
and signature block did not identify Dana as a trustee, and that
the petition referenced a Civil Code section permitting an
“aggrieved party” to file a petition for reformation; Dana was
aggrieved as a beneficiary, not a trustee. (Id. at 1196.)
Moreover, the purpose of the reformation petition was to secure a
larger share of the estate for Dana and her son, which “was
consistent with the interests of Dana as a beneficiary, not with
her fiduciary duties as a trustee to the beneficiaries . . . .” (Ibid.)
7
constituted a direct contest to the trust on the grounds of
fraud. (Id. at 1196.) The court further found Willis had
made a prima facie showing that Dana had brought the
reformation petition without probable cause, noting that
Dana’s only evidence that Allyne intended to disinherit
Willis was a handwritten note, which Allyne later
contradicted by restating her trust in full and expressly
reinstating Willis as a beneficiary. (Id. at 1197-1198.)
Finally, the court observed “there were no facts in the record
that would cause a reasonable person to believe the probate
court would reform Phillips Academy’s interest as the
remainder beneficiary.” (Id. at 1198.) The appellate court
concluded that Willis had “sufficiently established at this
stage of the proceedings that a reasonable person would not
believe, based on the facts known to Dana, that there was a
reasonable likelihood that the trust would be reformed to
provide solely for Dana and her son.” (Ibid.)
3. Dana Is Suspended as Trustee
In July 2019, Dana withdrew her attempt to reform the
petition as an individual. In January 2020, the probate
court granted Willis’s request to suspend Dana as trustee,
finding she was not permitted to pursue reformation of the
trust when it did not benefit the other beneficiaries.6
6 Though the record does not contain the document, the
court’s January 2020 order mentions the suspension request was
(Fn. is continued on the next page.)
8
B. Dana’s Complaint
In March 2020, Dana filed a complaint against Lewitt
Hackman, which she amended in November 2020. The first
amended complaint (FAC) contained six causes of action, all
based on allegations of malpractice. Dana alleged that in
February 2016, Lewitt Hackman committed malpractice by
failing to: (1) advise Dana that she could petition the
Probate Court for instructions on whether to reform the
trust; (2) advise Dana of the risks to her as both trustee and
beneficiary of filing a petition for reformation, including the
risk of disinheritance; (3) specify that the petition for
reformation was brought by Dana in her capacity as a
trustee, which led the Court of Appeal to conclude the
petition triggered the “no contest” clause; (4) prepare
adequate accountings for the trust; (5) advise Dana that
Masteller had previously been accused of malpractice; (6)
advise Dana that communications between Dana and her
attorneys would be disclosed to a successor trustee should
Dana be removed as trustee; and (7) advise Dana of her
fiduciary duties as a trustee, and that she potentially
violated those duties by filing a petition for reformation.
Dana further alleged that she had yet to incur attorney’s
fees to “rectify” her attorneys’ wrongdoing, but anticipated
made “pursuant to Willis’[s] petition for removal, filed May 31,
2016 . . . .”
9
doing so.7 She also alleged that she had been suspended as
trustee and faced potential removal, which would cost her
“hundreds of thousands of dollars per year in lost Trustee
fees,” that she would potentially be surcharged for the
attorney’s fees she paid from trust funds, and that she could
be disinherited if the court determined the petition for
reformation triggered the trust’s no contest clause.
In December 2020, Lewitt Hackman demurred. Among
other arguments, they contended the FAC was barred by the
one-year statute of limitations because the petition for
reformation in question had been subject to an appeal that
had been decided against Dana in October 2017. In opposing
the demurrer, Dana argued that the statute of limitations
did not begin to run until she had sustained actual injury,
which was a factual question unsuitable to be decided on
demurrer. Dana additionally argued that the appellate
opinion did not constitute actual injury, but only an
indication that she might sustain future injury. Should the
demurrer be sustained, Dana requested leave to amend to
allege that she was not actually injured until the probate
court removed her as trustee in January 2020. In their
reply, Lewitt Hackman reiterated that their actions had
caused Dana actual injury because they diminished her
rights and remedies.
7 Despite this allegation, Dana does not deny that she
incurred attorney’s fees to resist Willis’s petition, including his
claim that Dana’s filing of her reformation petition triggered the
no contest clause.
10
In January 2021, the trial court sustained the
demurrer, noting that “[c]ourts have held that when a victim
of malpractice is required to incur attorney fees to either file
a lawsuit to undo effects of malpractice or to defend an
action resulting from the malpractice, actual injury was
suffered.” The court found that Dana had sustained actual
injury by the time the appellate court opinion issued in
October 2017, because she “was having to defend her actions
in filing the petition for reformation and was also aware that
the action[] was being challenged as something she
undertook as a beneficiary rather than a trustee.”
Therefore, her March 2020 complaint was time-barred. The
trial court subsequently entered judgment against Dana,
and she timely appealed.
C. Dana Is Removed as Trustee, Surcharged,
and Disinherited
In May 2021, after Dana had filed this appeal, the
probate court ruled that she had triggered the no-contest
clause by filing a reformation petition as an individual
beneficiary, without probable cause. The court therefore
found Dana disinherited, and entered judgment to this
effect. The next day, the probate court removed Dana as
trustee and surcharged her for over two million dollars in
attorney’s fees that she caused the trust to incur.
11
D. Request for Judicial Notice
In July 2021, Dana requested that we judicially notice
two hearing transcripts and two judgments, as well as the
court rulings and findings reflected in each of those
documents.8 We reject Dana’s request because the
documents she asks us to notice are already in the record,
and we are capable of interpreting their legal effect.
DISCUSSION
While Dana alleged seven separate acts of malpractice
in her FAC and insists that each act must be analyzed
separately, she contends on appeal that the trial court erred
in sustaining the demurrer only as to one of the seven acts --
misadvising Dana regarding her fiduciary duties as trustee.
Because Dana presents no argument as to why the court
erred in sustaining the demurrer as to the other six acts of
purported malpractice, she has forfeited any such
arguments. (WFG National Title Ins. Co. v. Wells Fargo
Bank, N.A. (2020) 51 Cal.App.5th 881, 894 [“In order to
demonstrate error, an appellant must supply the reviewing
court with some cogent argument supported by legal
8 Specifically, Dana requests we notice: (1) portions of the
reporter’s transcript of the May 19, 2021 hearing at which the
probate court ruled on Willis’s petitions for instructions whether
Dana violated the no contest clause; (2) the judgment after trial
on this petition; (3) portions of the reporter’s transcripts of the
May 27, 2021 hearing at which the probate court ruled on Willis’s
request to remove Dana as trustee; and (4) the judgment/order
removing Dana and surcharging her.
12
analysis and citation to the record”].) Therefore, we consider
only whether the trial court erred in sustaining the
demurrer as to Lewitt Hackman’s alleged misadvising of
Dana regarding her fiduciary duties as trustee.
A. The Court Did Not Err in Sustaining the
Demurrer
All parties agree that Dana’s claims against Lewitt
Hackman are governed by the statute of limitations period
set forth in Code of Civil Procedure section 340.6, which
provides: “An action against an attorney for a wrongful act
or omission, other than for actual fraud, arising in the
performance of professional services shall be commenced
within one year after the plaintiff discovers, or through the
use of reasonable diligence should have discovered, the facts
constituting the wrongful act or omission . . . . [T]he period
shall be tolled during the time that any of the following
exist: [¶] (1) The plaintiff has not sustained actual injury.”
(Code Civ. Proc., § 340.6, subd. (a).) In the proceedings
below, Dana contended she had not sustained actual injury
more than a year before filing her complaint. On appeal, she
repeats this argument, and contends for the first time that
she did not discover and could not reasonably have
13
discovered the malpractice more than a year before filing
suit.9 We reject both arguments.
1. Dana Suffered Actual Injury More
Than a Year Before She Filed Suit
The trial court found Dana suffered actual injury by
the time the October 2017 Court of Appeal opinion was
issued, because Dana was incurring attorney’s fees to
“defend her actions in filing the petition for reformation and
was also aware that the action[] was being challenged as
something she undertook as a beneficiary rather than a
trustee.” Dana does not dispute she was required to expend
attorney’s fees, but contends that “fees incurred in defending
an attorney’s disputed actions do not constitute actual injury
unless and until a court determines the attorney, in fact,
9 Though Dana did not make the latter argument in opposing
the demurrer, she is permitted to do so for the first time on
appeal. (Gutierrez v. Carmax Auto Superstores California (2018)
19 Cal.App.5th 1234, 1244-1245 [“The Supreme Court has
repeatedly stated that appellate courts reviewing a general
demurrer make a de novo determination of whether the
complaint alleges ‘facts sufficient to state a cause of action under
any possible legal theory.’ . . . [T]he court did not refer to any
possible legal theory raised in the trial court. Indeed, the
Supreme Court rejected restrictions of this type when,
immediately after mentioning ‘any possible legal theory,’ it
stated: ‘We are not limited to plaintiffs’ theory of recovery or
“‘form of action’” pled in testing the sufficiency of the
complaint’”].)
14
erred.” Dana cites no authority to support her argument,
which is contrary to caselaw.
“Actual injury occurs when the client suffers any loss
or injury legally cognizable as damages in a legal
malpractice action based on the asserted errors or
omissions.” (Jordache Enterprises, Inc. v. Brobeck, Phleger
& Harrison (1998) 18 Cal.4th 739, 743 (Jordache).) “The loss
or diminution of a right or remedy constitutes injury or
damage. [Citation.] Neither uncertainty of amount nor
difficulty of proof renders that injury speculative or
inchoate.” (Id. at 744.) “There is no requirement that an
adjudication or settlement must first confirm a causal nexus
between the attorney’s error and the asserted injury.” (Id. at
752.)
In Jordache, after the plaintiff was sued, its law firm
failed to advise it to tender the suit to its insurance
companies. (Jordache, supra, 18 Cal.4th at 744-745.) After
new counsel was retained over three years later, the plaintiff
tendered the claims, and then sued the insurance companies
after they refused to provide a defense or reimburse the
plaintiff for the attorney’s fees already incurred. (Id. at 745.)
After the underlying lawsuit was settled, the plaintiff also
settled its lawsuit against the insurance companies. (Id. at
746.) The plaintiff then sued its initial law firm for
malpractice regarding its failure to investigate or advise the
plaintiff about tendering the claim. (Ibid.) Affirming a
grant of summary judgment in favor of the law firm on
statute of limitations grounds, our Supreme Court found
15
that actual injury had occurred when the plaintiff paid
defense costs that would have been covered by insurance.
(Id. at 752.) At the time those costs were incurred, there had
been no court determination that any attorneys had erred.
(Id. at 745-746; see also Sirott v. Latts (1992) 6 Cal.App.4th
923, 929 [plaintiff sustained actual injury when forced to
incur attorney’s fees due to previous attorney’s incorrect
advice].)
Citing Laird v. Blacker (1992) 2 Cal.4th 606, Dana
contends that “[w]here a malpractice claim is based on
negligently conducted litigation, as is the case here, the
Supreme Court has ruled that the element of damages,
‘actual injury’ in the context of section 340.6, generally does
not exist until an adverse judgment or order of dismissal is
entered in that litigation.” Dana ignores the context in
which the Laird court made this statement. In Laird, the
plaintiff had engaged attorneys to file and prosecute a
lawsuit. (Id. at 609-610.) After they filed the complaint but
failed to prosecute it, the trial court dismissed the suit. (Id.
at 610.) The plaintiff discharged her attorneys and
appealed, in propria persona. (Ibid.) She eventually settled
the case for a nominal amount, then sued her attorneys for
malpractice. (Ibid.) The malpractice lawsuit was filed more
than a year after the trial court dismissed her underlying
complaint, but less than a year after she settled it. (Ibid.)
The issue before our Supreme Court was whether the statute
of limitations began to run from the trial court’s dismissal,
or from the date of settlement. (Id. at 608.) In this context,
16
the court held that the statute of limitations “commence[d]
on entry of adverse judgment or final order of dismissal”
because the plaintiff “sustained actual injury when the trial
court dismissed her underlying action and she was
compelled to incur legal costs and expenditures in pursuing
an appeal.” (Id. at 615.) However, six years later, in
Jordache, our Supreme Court clarified that “the
determination of actual injury does not necessarily require
some form of adjudication, judgment, or settlement.”
(Jordache, supra, 18 Cal.4th at 755.) Instead, “[a]ctual
injury occurs when the client suffers any loss or injury
legally cognizable as damages in a legal malpractice action
based on the asserted errors or omissions.” (Id. at 743.) We
therefore reject Dana’s contention that actual injury from an
attorney’s malpractice cannot occur without a judicial
determination of attorney error, and conclude the court did
not err in finding Dana’s FAC was barred by the statute of
limitations.10
10 Dana also claims the court failed to analyze separately the
statute of limitations as to each allegation of malpractice
contained in her FAC. But she does not dispute that more than a
year before she sued Lewitt Hackman for malpractice, she
incurred attorney’s fees related to her claim that they misadvised
her regarding her fiduciary duties as trustee, and thus suffered
actual injury as a result of the only act of malpractice alleged in
the FAC that is at issue in this appeal.
17
2. Dana Discovered the Alleged
Malpractice More Than a Year Before
She Sued
For the first time on appeal, Dana argues that her
claim against Lewitt Hackman is not time-barred because it
was not until the court suspended her as trustee in January
2020 that she discovered -- or could have discovered -- that
Lewitt Hackman had misadvised her about her fiduciary
duties. We disagree.
“Under the discovery rule, the statute of limitations
begins to run when the plaintiff suspects or should suspect
that her injury was caused by wrongdoing, that someone has
done something wrong to her. . . . [T]he limitations period
begins once the plaintiff ‘“‘has notice or information of
circumstances to put a reasonable person on inquiry . . . .’”’”
(Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111.)
In October 2017, the appellate court found the
reformation petition “was consistent with the interests of
Dana as a beneficiary, not with her fiduciary duties as a
trustee to the beneficiaries . . . .” (Urick v. Urick, supra, 15
Cal.App.5th at 1196.) Though the opinion did not establish
that Dana had violated her fiduciary duties, it sufficiently
put her on notice that her attorneys had potentially
committed malpractice by misadvising her regarding her
fiduciary duties as trustee, thus triggering her duty to
investigate and starting the statute of limitations. (See
Krusesky v. Baugh (1982) 138 Cal.App.3d 562, 568 [client “is
under no duty to investigate her attorney’s actions unless
18
she has actual notice of facts sufficient to arouse the
suspicions of a reasonable person”].) Her March 2020
complaint, therefore, was filed too late.
B. The Court Did Not Err in Refusing Leave to
Amend
For the first time on appeal, Dana requests leave to file
an amended complaint alleging that Lewitt Hackman
committed malpractice by filing the reformation petition
without probable cause, which she claims she did not
discover -- and could not have discovered -- until the probate
court so determined in May 2021. We reject her request
because such a claim would also be time-barred. The
October 2017 Court of Appeal opinion identified two
separate bases for finding Dana’s petition lacked probable
cause. First, it noted that Dana’s only evidence that Allyne
intended the trust to provide solely for Dana and Trentyn
(and not Willis and Phillips Academy) was a handwritten
amendment removing Willis as a beneficiary, which was
later superseded by a signed restatement of the trust that
expressly reinstated Willis. (Urick v. Urick, supra, 15
Cal.App.5th at 1198.) With no other evidence to support her
claim that her mother intended Dana and Trentyn to be the
sole beneficiaries of her trust, the court concluded “a
reasonable person would not believe, based on the facts
known to Dana, that there was a reasonable likelihood that
the trust would be reformed to provide solely for Dana and
19
her son.” Additionally, the court noted that regardless of
any evidence of Allyne’s intent with respect to Willis, “there
were no facts in the record that would cause a reasonable
person to believe the probate court would reform Phillps
Academy’s interest as the remainder beneficiary.” Thus, on
multiple bases, the court concluded there was prima facie
evidence the reformation petition lacked probable cause.
(Ibid.)
Again, we hold the Court of Appeal’s opinion
sufficiently placed Dana on notice of a potential malpractice
claim against Lewitt Hackman for filing a reformation
petition lacking probable cause.11 Dana does not dispute
that by the time the appellate court issued its opinion in
October 2017, she had expended attorney’s fees defending
against the accusation that the petition lacked probable
cause. Therefore, any amendment to allege that Lewitt
Hackman committed malpractice by filing a reformation
petition lacking probable cause would still be barred by the
statute of limitations.
Dana counters that even if the appellate opinion did
place her on notice, the statute did not commence because
“no amount of diligent investigation by [Dana] could have
reveal[ed] the fact that the Reformation Petition lacked
11 Therefore, Dana’s argument that she could not have known
her petition lacked probable cause before the court made this
determination is beside the point -- the statute does not require
definitive knowledge before it begins to run. (Jolly v. Eli Lilly &
Co., supra, 44 Cal.3d at 1110-1111.)
20
probable cause and was thus wrongful.” We find instructive
the case of Village Nurseries v. Greenbaum (2002) 101
Cal.App.4th 26. There, the plaintiff had hired the defendant
law firms to perfect mechanic’s liens against projects whose
owner was in bankruptcy. (Id. at 43.) Four months after a
bankruptcy court ruled the liens were invalid, the plaintiff
sued for malpractice. (Id. at 34.) The Court of Appeal found
the claims were time-barred because more than a year before
the plaintiff sued, its attorney had informed it that: “(1) its
liens may be invalid because a section 546(b) notice was not
served; (2) the [bankruptcy] Trustee argued the liens were
unperfected; (3) the [bankruptcy] judge doubted the validity
of the liens and noted that [plaintiff’s] foreclosure actions
may be insufficient for perfection and in violation of the
Bankruptcy Code; and (4) in light of those comments,
[plaintiff] should look into the possibility of legal malpractice
and may want to obtain another attorney to review what had
been done to date.” (Id. at 44.) Although the plaintiff could
not have known how the bankruptcy court would adjudge
the validity of the mechanic’s liens until it ruled, the
appellate court held the plaintiff possessed sufficient
information to trigger the commencement of the statute of
limitations. (Ibid.) Similarly, although Dana could not have
known with certainty how the probate court would rule on
Willis’s attempts to remove her as trustee, by no later than
October 2017, she possessed sufficient information to trigger
the commencement of the statute of limitations.
21
C. We May Consider the Court of Appeal’s
Opinion in Urick v. Urick
Citing Code of Civil Procedure section 425.16,
subdivision (b)(3) (section 425.16(b)(3)), Dana asserts “the
Court of Appeal’s determination that the No Contest Petition
had a probability of prevailing cannot be used by Attorneys
to meet their burden of establishing that [Dana] should have
discovered that the Reformation Petition lacked probable
cause more than one year before she filed this lawsuit.” We
disagree.
Before October 2005, section 425.16(b)(3) provided: “‘If
the court determines that the plaintiff has established a
probability that he or she will prevail on the claim, neither
that determination nor the fact of that determination shall
be admissible in evidence at any later stage of the case, and
no burden of proof or degree of proof otherwise applicable
shall be affected by the determination.’” (Bergman v. Drum
(2005) 129 Cal.App.4th 11, 20, italics omitted.) Our
colleagues in Division Three found that “[t]he obvious intent
of this subdivision of section 425.16 is that a decision by a
court that a plaintiff has presented a prima facie case in
response to a defendant’s section 425.16 motion to strike
should not be used as proof that a verdict in the plaintiff’s
favor should be rendered in a later dispositive or potentially
dispositive portion of the case, such as at trial or a motion by
the plaintiff for summary judgment.” (Ibid.)
In October 2005, section 425.16(b)(3) was amended to
provide: “‘If the court determines that the plaintiff has
22
established a probability that he or she will prevail on the
claim, neither that determination nor the fact of that
determination shall be admissible in evidence at any later
stage of the case, or in any subsequent action, and no burden
of proof or degree of proof otherwise applicable shall be
affected by that determination in any later stage of the case
or in any subsequent proceeding.’” (Hutton v. Hafif (2007)
150 Cal.App.4th 527, 545, changes italicized.)12 However,
the Legislature explained that this amendment was
implemented to address a previous Supreme Court decision
that permitted a defendant who initially survived an anti-
SLAPP motion to use that survival as a defense against a
subsequent malicious prosecution claim. (Id. at 548-549.)
As Bergman and Hutton make clear, the purpose of
section 425.16(b)(3) is: (a) to ensure that a court’s initial
denial of an anti-SLAPP motion due to a prima facie showing
by the plaintiff should not be construed as evidence that the
plaintiff should prevail; and (b) to prevent the plaintiff from
using such a determination to defend against a subsequent
malicious prosecution action. Dana provides no authority
preventing us from considering the court’s determination not
for its merits, but for the effect it had on her, and her claim
that she did not discover -- and could not have discovered --
Lewitt Hackman’s malpractice until after she was suspended
as trustee.
12 This section was subsequently amended to substitute “the
plaintiff” for “he or she.” (Code Civ. Proc., § 425.16, subd. (b)(3).)
23
DISPOSITION
The judgment is affirmed. Respondents are awarded
their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
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