Letgolts v. David H. Pierce & Assoc. ( 2021 )

Filed 11/2/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
ALLEN LETGOLTS et al., B306905
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC537637)
v.
DAVID H. PIERCE &
ASSOCIATES, PC, et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Daniel S. Murphy, Judge. Affirmed.
Timothy D. McGonigle Professional Corporation and
Timothy D. McGonigle for Plaintiffs and Appellants.
Freeman Mathis & Gary, Frances M. O’Meara, Stephen M.
Caine and Holly M. Teel for Defendants and Respondents.
____________________
A case within a case can arise when a legal malpractice suit
accuses lawyers of poor work. The main case is the malpractice
suit: were the defendant lawyers’ performances deficient? The
case within the case is whether the lawyers’ performances
mattered. If the underlying suit on which the lawyers worked
lacked merit, then their alleged malpractice could not have had
an impact, because the client would have lost anyway. The issue
is causation: whether possible malpractice could have caused
harm. (See Viner v. Sweet (2003) 30 Cal.4th 1232, 1239–1240.)
This appeal follows that pattern.
Married couple Allen Letgolts and Gabriella Plattner hired
a law firm to get money from an insurance company: National
Contractors Insurance Company, Inc. But National’s policy was
a special and narrow kind of manuscript policy that excluded the
kind of construction defect claims Letgolts and Plattner were
pursuing. Plaintiffs Letgolts and Plattner also asserted a claim
for personal injury from when Plattner fell down stairs.
National’s policy did cover personal injuries. But Plattner’s tardy
and uncorroborated claim was at odds with the detailed lists of
problems Plattner herself gave the insurer years before. Plattner
thus effectively impeached herself. The trial court implicitly
rejected Plattner’s testimony about her personal injury claim.
We credit this implied credibility determination.
As a result, the trial court rejected the legal malpractice
suit against the defendant law firm because pursuing insurance
money from National was a lost cause from the start. This ruling
was correct: whether the law firm committed malpractice did not
matter, because Letgolts and Plattner could not have won their
insurance case. We affirm.
2
I
Letgolts and Plattner are the plaintiffs and appellants.
They had a bad experience remodeling their home in 2008. The
fallout continues today, 13 years later, with this appeal.
The defendants and respondents in this legal malpractice
case are the law firm of David H. Pierce and Associates, P.C., and
Charles Pressman, who is a lawyer with that firm. We refer to
this firm and Pressman collectively as Pierce.
We summarize the facts in three phases.
First is the 2007 to 2010 time frame. In these years,
Letgolts and Plattner hired contractor Boris Pinchevskiy to
remodel their home. Pinchevskiy made a mess of the project and
then walked away, so Letgolts and Plattner sued him and others.
The second phase is 2010 to 2015, which was a quiescent
interval.
The third phase is 2015 to 2020, which produced forward
motion in the dispute, culminating in a 2020 bench trial. The
trial court ruled against Letgolts and Plattner, who now appeal.
We describe these three phases.
A
The first factual phase was from 2007 to 2010. This phase
began with Letgolts and Plattner planning their home remodel
and room addition. This remodel ended in litigation.
Letgolts and Plattner planned their remodel with care,
according to their later unverified complaint. Their allegations
tell this story.
In 2007, Letgolts and Plattner consulted Maritza Hartnett,
an insurance agent who had helped them obtain car insurance,
homeowners insurance, flood insurance, and earthquake
insurance. Plattner, a practicing lawyer, told Hartnett about the
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planned remodel. Plattner said it would be major: it would take
some of their home “down to the studs.” Plattner wanted full
insurance against all hazards.
Hartnett assured Plattner her existing homeowners policy
with Fire Insurance Exchange fully covered the situation.
Hartnett was wrong: the Fire Insurance Exchange policy
excluded property damage caused by “construction activities.”
“Construction activities” were what Plattner and Letgolts wanted
Pinchevskiy to undertake.
Plattner and Letgolts alleged that, had Hartnett accurately
disclosed that the Fire Insurance Exchange policy excluded
property damage caused by construction activities, they would
have obtained different insurance or a similar product, such as a
bond, to protect them against the risk of construction-related
property damage.
In reliance on Hartnett’s bad advice and with no bond or
other insurance, Letgolts and Plattner signed a contract with
Pinchevskiy on December 8, 2007. His crew began demolition.
On January 15, 2008, an event central to this appeal either
did, or did not, occur. In 2020, Plattner would claim she fell down
a home staircase Pinchevskiy allegedly had rebuilt in a negligent
way. Plattner in 2020 portrayed the supposed fall as serious:
“On January 15, 2008, I fell down the unfinished stairs at the job
site and suffered a concussion, lacerations, muscle strain, and
tendonitis and sought care from a physician.”
We will return to the uncertainty surrounding this alleged
January 15, 2008 fall and Plattner’s alleged concussion,
lacerations, and medical care. For now, we continue in
chronological order.
4
As 2008 progressed, Pinchevskiy botched the home
remodel. He had cashed six figures of prepayment from Letgolts
and Plattner and demolished parts of their home, but he
abandoned the unfinished job on July 1, 2008. His negligence
caused extensive damage to the home. Plattner claimed
Pinchevskiy left the place “completely uninhabitable.”
Later in 2008, Letgolts and Plattner sought relief from
Pinchevskiy and his insurer National.
Pinchevskiy went bankrupt. National became insolvent.
Neither is party to this suit.
On September 11, 2008, Plattner wrote a claims letter to
Pinchevskiy’s insurance broker to make a claim against National.
Plattner enumerated her problems with the home remodel:
1. Pinchevskiy had promised the job would be done by
April 1, 2008, but it was not;
2. Pinchevskiy walked off the job, leaving electrical,
plumbing, and framing work incomplete;
3. Gas pipes were left unconnected;
4. Water pipes were not configured for proper drainage;
5. The electrical sub-panel was inadequate for the house
and the main electrical panel was not connected; and
6. Walls and ceilings Pinchevskiy had removed contrary
to plans required further foundation work and
bracing of remaining walls.
In this letter, Plattner did not mention falling down stairs,
her concussion, her lacerations, or her medical expenses.
Plattner signed her claims letter “Plattner Law Office” with a
Century City address different from her home address.
5
On January 20, 2009, Plattner sent National’s insurance
adjuster another letter detailing her claims against Pinchevskiy.
Plattner now itemized 19 problems:
1. Pool shed destroyed;
2. Air conditioning pipes and wires cut;
3. Spiral staircase removed and door frames destroyed;
4. Foundation undermined, causing floor above to sag;
5. Drain pipes cut;
6. Wood floors destroyed;
7. Brick patio torn up and more drain pipes cut;
8. Electrical lines to sub-panel cut and all existing
wiring removed in house;
9. Windows damaged;
10. Fireplace damaged;
11. Previously existing wiring replaced with
inferior product;
12. Door frames damaged and destroyed;
13. Gas and water lines poorly connected and left
unconnected under the floorboards;
14. Wall built jutting out from house by six inches;
15. Security system destroyed;
16. Sprinkler system destroyed;
17. Driveway destroyed;
18. Excessive dirt excavation causing floor to sink
over two inches; and
19. Excavation leaving driveway without lateral
support, causing it to crumble.
As we have just listed, item three described Pinchevskiy’s
removal of a spiral staircase. Plattner’s letter did not mention a
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defectively reconstructed staircase, Plattner’s fall, her concussion,
her lacerations, or her medical treatment.
Letgolts and Plattner retained attorney Scott Marks, who
on November 13, 2009, filed a complaint against three
defendants:
1. Fire Insurance Exchange, which the complaint
identified as Letgolts and Plattner’s home insurer;
2. Hartnett, the insurance agent who advised Letgolts
and Plattner about insurance; and
3. Pinchevskiy.
This complaint alleged Hartnett assured Letgolts and
Plattner their existing homeowners policy with Fire Insurance
Exchange would cover possible property damage by Pinchevskiy.
Relying on Hartnett’s advice, Letgolts and Plattner did not obtain
a bond or other insurance. Then Pinchevskiy damaged their
property during his bungled remodeling effort. Letgolts and
Plattner sought to hold Hartnett, Fire Insurance Exchange, and
Pinchevskiy liable for the property damage Pinchevskiy caused.
Hartnett and Fire Insurance Exchange are not parties to
this appeal.
This 2009 complaint mentioned “property damage” in 19
different paragraphs. The complaint did not mention a staircase,
a fall down it, a concussion, lacerations, or medical treatment for
Plattner.
On February 2, 2010, National’s coverage counsel
responded to Plattner’s claims letters with a 26-page analysis of
why National had no duty to defend or indemnify Pinchevskiy
against the lawsuit by Letgolts and Plattner. This analysis
summarized the dispute and stated counsel “would appreciate
being advised of any corrections or comments” about its account
7
of the situation. The parties call this document the “claims
rejection letter.”
This letter reviewed why National’s policy did not cover
Plattner’s claims. The letter mentioned coverage counsel’s
independent investigation of Plattner’s claims.
The letter does not allude to a supposed fall by Plattner, a
concussion, lacerations, or medical treatment. Nor is there a
reference to “stairs,” apart from item three, quoted above,
reciting Plattner’s report of “Spiral staircase removed and door
frames destroyed.”
Letgolts and Plattner did not complain the claims rejection
letter omitted Plattner’s injuries from falling down stairs.
B
The second factual phase is from 2010 to 2015. Little
happened. Attorney Marks had sued Pinchevskiy, Hartnett, and
Fire Insurance Exchange on behalf of Letgolts and Plattner. The
suit against Pinchevskiy proceeded glacially.
Although Pinchevskiy did not retain counsel, Marks failed
to obtain a default judgment against him. Marks withdrew from
the case in July 2012. Marks is not a party to this appeal.
After their disappointing experience with attorney Marks,
Letgolts and Plattner retained a second round of attorneys:
Pierce. Pierce secured a default judgment against Pinchevskiy,
but it took Pierce until June 2015 to do this. Pierce’s theory
against National was that it had wrongfully failed to defend
Pinchevskiy and therefore was liable for the entire judgment
against him. But National filed for liquidation before Pierce
could collect on the judgment.
In sum, by 2015, Pierce had gotten Letgolts and Plattner a
judgment about the 2008 remodeling fiasco, but the judgment
8
was uncollectable against both Pinchevskiy, who was bankrupt,
and National, which was defunct.
C
The third factual phase is from 2015 to 2020. In these
years, Letgolts and Plattner sued Pierce for malpractice. The
case proceeded to a bench trial, which Letgolts and Plattner lost.
We detail these events.
For the third time, Letgolts and Plattner retained counsel.
The purpose now was to sue their previous lawyers for legal
malpractice.
This malpractice case is the one currently on appeal.
Letgolts and Plattner originally filed this case many years ago.
They filed the operative pleading—the Fifth Amended
Complaint—in 2018. This pleading accused Pierce of negligent
delay in seeking recovery from Pinchevskiy’s insurer, National.
The allegation was that Pierce could have secured payment for
Letgolts and Plattner from National, but Pierce’s slow pace let
National slip into liquidation. Letgolts and Plattner alleged
Pierce thereby lost them millions of dollars of a potential recovery
from National.
To defend against this legal malpractice by Letgolts and
Plattner, Pierce used the mechanism of a case within a case.
Pierce’s lawyers argued Letgolts and Plattner could never have
prevailed against National because they never presented a claim
covered by Pinchevskiy’s policy with National. So, these defense
lawyers asserted, Pierce’s alleged sluggishness did not matter:
no insurance recovery ever was possible from National.
Therefore, they reasoned, Pierce’s alleged malpractice could not
have made a difference.
9
On February 5, 2020, the trial court held a one-day
bifurcated bench trial. One witness testified: Plattner. The
court determined Pierce’s defense was valid and entered
judgment against Letgolts and Plattner, who now appeal.
II
We independently review the trial court’s legal rulings and
deferentially review its factual findings.
Familiar malpractice and insurance law is the backdrop to
this review. Letgolts and Plattner sued Pierce on the legal
malpractice theory that Pierce was unprofessionally slow: had
the law firm moved with professional dispatch, it could have
secured and enforced a judgment against Pinchevskiy that
National, while solvent, could have satisfied. Pierce’s defense
was that Letgolts and Plattner never presented a claim within
National’s policy, meaning the insurance company had no duty to
Pinchevskiy to defend or to indemnify him against Letgolts and
Plattner. According to Pierce, this meant Letgolts and Plattner
never stood a chance of securing an enforceable judgment that
National would have paid, so any alleged malpractice by Pierce
could not have harmed them. The trial court accepted this theory
and ruled for Pierce. Letgolts and Plattner protest this ruling by
arguing National had a duty to indemnify and, at the very least,
to defend Pinchevskiy, given the claims Letgolts and Plattner had
raised against him. (See Montrose Chemical Corp. v. Superior
Court (1993) 6 Cal.4th 287, 295–300.)
Our analysis is in three steps.
First, we examine the National insurance policy at the
center of this case.
10
Second, we determine the trial court correctly interpreted
this policy to exclude the construction defect claims by Letgolts
and Plattner.
Third, we assay the personal injury claim. Plattner
testified at the bench trial she hurt herself by falling down a
defectively constructed staircase. This testimony was in 2020
about an event that Plattner said was in 2008. The trial court
did not expressly reject Plattner’s tardy injury claim on
credibility grounds. That implicit finding, however, is the
necessary implication of the court’s ruling. We ascribe this
credibility finding to the trial court, which dooms Plattner’s
personal injury claim.
A
National sold contractor Pinchevskiy a particular and
specialized kind of insurance policy. It was a manuscript policy
rather than a standard general commercial liability policy. (See
Croskey et al., Cal. Practice Guide: Insurance Litigation (The
Rutter Group 2021) §§ 3:33–3:40 [distinguishing standard from
nonstandard or “manuscript” insurance policies]; Dart Industries,
Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1074,
fn. 5 [same][citing Croskey, supra].)
The type of manuscript policy National sold Pinchevskiy
excluded Pinchevskiy’s own sloppy construction work from
coverage. In other words, if Pinchevskiy’s deficient work required
repair, that was on Pinchevskiy. It was not the insurer’s
problem.
The pertinent provision within this policy was “exclusion
(k)(6).” This provision is central to this appeal. Exclusion (k)(6)
reads as follows, with our italics:
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“This insurance does not apply to ‘property damage’ to . . .
[t]hat particular part of any real property or personal property
that must be restored, repaired or replaced because ‘your work’
was incorrectly performed on it.”
The case law labels this a “faulty workmanship exclusion.”
(E.g., Clarendon America Ins. Co. v. General Security Indemnity
Co. of Arizona (2011) 193 Cal.App.4th 1311, 1325 (Clarendon).)
The principle is simple. The insurance company says,
“Contractor, you are on the hook for your own bad construction
work. We are not.”
This commercial arrangement makes common sense.
The issue is moral hazard. It would create a moral hazard
for insurance companies to sell insurance to contractors that
would tempt the contractors then to exploit by doing cheap
construction work for clients, only to leave the insurers
responsible for fixing the faults.
We illustrate the issue in concrete but simplified terms. In
a small job with no subcontractors, consider how a builder might
be enticed to increase the profit on a job by cutting corners. How
much steel rebar should the builder buy and lay down before
pouring the cement slab: the proper amount to strengthen the
slab, or less? How many beams should the builder put in the
ceiling before concealing the beams with drywall? How many
nails in each two by four? Less steel and fewer beams and nails
would cost less, cut the builder’s expenses, and increase the
builder’s profits. Cutting these corners will be invisible, for the
shortcuts will be hidden within the floor and behind the paint.
Perhaps no one will notice before the first large earthquake.
Perhaps that will take decades—or centuries.
12
The prospect of legal liability for poor work helps deter
builders from cutting corners. (See, e.g., Civ. Code, § 895 et seq.)
But it would dull that discipline if contractors could obtain
insurance indemnifying them for the costs of fixing their own
shoddy work. Misguided insurance like that would create a
moral hazard.
Moral hazard is the bad incentive the fact of insurance can
give to an insured. The bad incentive is to increase risky or
destructive behavior covered by the insurance. If the presence of
insurance tempts insureds to cut corners or to take unwise risks,
insurance will have created a perverse and socially undesirable
incentive. (See Wexler v. California FAIR Plan Assn. (2021) 63
Cal.App.5th 55, 63, 70–75 [explaining moral hazard generally];
Western Employers Ins. Co. v. Arciero & Sons, Inc. (1983) 146
Cal.App.3d 1027, 1031–1032 [explaining moral hazard in the
contractor setting]; cf. Clarendon, supra, 193 Cal.App.4th at p.
1325 [in this kind of policy, contractors bear the risk of fixing
their own faulty workmanship, while insurers bear the risk of
damage to the property of others].)
Moral hazard is a general phenomenon in the insurance
world. The hazard is moral because it can tempt good people to
do bad things: to take unwise risks where they profit if all goes
well but avoid liability if fortune does not smile.
Allowing a stranger to buy insurance on your life is a
classic and extreme example of moral hazard’s perverse
incentive. That insurance would tempt the stranger to arrange
for your death, to make it look like an accident, and to collect the
policy payoff. (See Warnock v. Davis (1881) 104 U.S. 775, 779
[life insurance policies that allow strangers to profit from the
13
“early death” of the insured “have a tendency to create a desire
for the event”].)
Judge Posner gives another illustration. He explained an
insurance company would not willingly insure a pension plan and
its sponsor against an underpayment of benefits. Coverage like
that would create an acute moral hazard problem. “Such
insurance would give the plan and its sponsor an incentive to
adopt aggressive (just short of willful) interpretations of ERISA
designed to minimize the benefits due, safe in the belief that if, as
would be likely, the interpretations were rejected by the courts,
the insurance company would pick up the tab. Heads I win, tails
you lose.” (May Dept. Stores Co. v. Fed. Ins. Co. (7th Cir. 2002)
305 F.3d 597, 601, italics added (Posner), abrogated on other
grounds by Americold Realty Trust v. ConAgra Foods, Inc. (2016)
577 U.S. 378, as recognized in RTP LLC v. ORIX Real Estate
Capital, Inc. (7th Cir. 2016) 827 F.3d 689, 691–692.)
Insurance companies know all about moral hazard. They
seek to guard against it. It would be unprofitable for them to
encourage insureds to magnify the very risks against which the
insurance company is insuring. No insurance company wants to
encourage its insureds to game its own system against itself.
Rational companies will write policies to eliminate moral hazard.
So it was with National’s policy with Pinchevskiy.
National’s policy evinced a goal of avoiding moral hazard.
National did not want to tempt contractors like Pinchevskiy to
play heads I win, tails you lose against it. National did insure
Pinchevskiy against accidentally harming other people. But
when it came to insuring the quality of Pinchevskiy’s own
construction work, National’s coverage drew the line. To do
otherwise would have encouraged Pinchevskiy to save money by
14
cutting corners on quality, “safe in the belief that if [the cut
corners caused construction defects], . . . the insurance company
would pick up the tab.” (Posner, supra, 305 F.3d at p. 601.)
B
We now turn to the property damage claims by Letgolts and
Plattner. The next section takes up their personal injury claim.
National’s policy excluded Letgolts and Plattner’s property
claims, which were the results of Pinchevskiy’s own faulty
workmanship. The faulty workmanship exclusion meant these
claims could not support a recovery against National.
The initial and seemingly main reason Letgolts and
Plattner were unhappy with Pinchevskiy was that he botched
their remodel. He took too long and left too soon. The work he
did do was of low quality. Pinchevskiy then used bankruptcy to
dodge personal liability for his own substandard performance.
Pinchevskiy’s policy with National, however, did not step
into the breach. Paragraph (k)(6) excluded Pinchevskiy’s faulty
workmanship from the policy. The trial court ruling on property
damage was correct: National’s faulty workmanship exclusion
excluded Pinchevskiy’s faulty workmanship.
This conclusion has support from lofty sources. Justice
Traynor’s trim decision in Volf v. Ocean Accident & Guarantee
Corp. (1958) 50 Cal.2d 373, 373–376 reached a similar decision
regarding a similar insurance exclusion. The esteemed Professor
Macaulay explained Justice Traynor’s ruling made good sense: a
contrary decision would have lessened the incentive for the
contractor “to exercise care or to make repairs at the least
possible cost.” (Macaulay, Justice Traynor and the Law of
Contracts (1961) 13 Stan.L.Rev. 812, 825–826.) The court in
Maryland Casualty Company v. Reeder (1990) 221 Cal.App.3d
15961, 967–968 quoted and endorsed Macaulay’s analysis. So do
we.
In their appellate briefing, Letgolts and Plattner emphasize
particular items of damaged property: their pool shed and their
driveway. They say the shed and driveway were not within the
scope of services in Pinchevskiy’s contract and argue this
property, therefore, must fall outside the faulty workmanship
exclusion.
This argument is incorrect. It lacks support from text,
logic, and authority.
The text of the policy contravenes this argument. “This
insurance does not apply to ‘property damage’ to . . . [t]hat
particular part of any real property or personal property that
must be restored, repaired or replaced because ‘your work’ was
incorrectly performed on it.” (Italics added.) Letgolts and
Plattner wanted their shed and driveway repaired because
Pinchevskiy wrecked them. The text of the contract excludes
those claims.
No logic supports this argument. The rationale for the
faulty workmanship exclusion is to force contractors to bear
liability for their own defective work. The goal is to ensure
contractors do acceptable work. This goal is unaffected by
whether the work is within or beyond the scope of a contract.
Letgolts and Plattner supply no reasoning to overcome this point.
This argument also lacks legal precedent. In their briefing,
Letgolts and Plattner rely on Tokio Marine Speciality Insurance
Company v. Thompson Brooks, Inc. (N.D. Cal. 2017) 252
F.Supp.3d 753, 760–761, which is irrelevant. The Tokio holding
was the faulty workmanship exclusion does not apply when a
third party, beyond the control of the contractor, is responsible
16
for the property damage. (Ibid.) That holding makes good sense
but does not apply where no third party was beyond
Pinchevskiy’s control.
At oral argument and after giving Pierce fair notice,
Letgolts and Plattner cited another irrelevant case: Global
Modular, Inc. v. Kadena Pacific, Inc. (2017) 15 Cal.App.5th 127.
Part of Global interprets a faulty workmanship exclusion. (See
id. at pp. 139–144.) Global affirmed a summary judgment
because there was a fact question about whether the contractor’s
work was faulty. (Id. at p. 144 [“we do not know whether Global’s
rain protection was defective or simply overcome by heavy rain”];
see also id. at p. 141 & fn. 2.) Here, however, the contractor’s
work was defective. Letgolts and Plattner strongly agree this is
so. Global thus is not pertinent.
We do not address the arguments by Letgolts and Plattner
concerning other and cumulative reasons the trial court gave for
its ruling. Nor do we address another decision cited at oral
argument that the authoring federal district court decided
against publishing.
C
This section concerns the personal injury claim. The trial
court ruled Plattner and Letgolts never presented the personal
injury claim to National. In 2020, Plattner testified by
declaration as well as in person. She claimed that, on January
15, 2008, she fell down stairs and suffered a concussion, which
she later orally reported to a claims adjuster. The trial court in
this bench trial evidently did not credit Plattner’s tardy,
uncorroborated, and self-serving testimony. The court’s ruling is
clear, although it is implicit rather than express. Substantial
evidence supports it. We defer to it.
17
We begin with the trial court’s ruling. The court wrote in
its statement of decision that there was “NO COVERAGE FOR
PLAINTIFF PLATTNER’S UNDISCLOSED BODILY INJURY
CLAIM.” The italics are ours and pinpoint the crux. Plattner’s
personal injury claim was for her supposed concussion and
lacerations from her supposed fall down the stairs. The trial
court found Plattner never disclosed this claim to National.
Plattner points out she testified in the bench trial that she
had given an oral report of this injurious fall to a claims adjuster.
The trial court rejected this testimony by writing that
Plattner’s bodily injury claim was “undisclosed.”
The trial court did not expand on its succinct finding. It did
not write, for instance, “I disbelieve Plattner’s testimony about
how she fell down.” Nor did the court write, “I reject Plattner’s
claim that she made an oral report of the fall to National’s claims
adjuster.” The trial court did not specify the basis for its finding.
This lack of specificity does not reduce the force of this trial
court finding, so long as the record reveals a rational ground that
supports it. (See Schmidt v. Superior Court (2020) 44
Cal.App.5th 570, 582 [in a bench trial, the court may believe or
disbelieve uncontradicted witnesses if there is a rational ground
for doing so].) The absence of an express credibility finding does
not matter when the trial court’s implied finding is clear and
enjoys rational support. (See ibid.).
We indulge all presumptions and intendments in support of
the judgment. (E.g., Jameson v. Desta (2018) 5 Cal.5th 594, 609.)
This fundamental rule is old. (See Ford v. Holton (1855) 5 Cal.
319, 321.)
It is understandable that trial judges occasionally are
diffident about stating in very direct terms that they reject a
18
party’s testimony. A bench trial can be an intimate affair: few
may attend, and the regulars may all seem to be worthy people
despite their commitment to a litigation dispute that has become
overwhelmingly partisan. Over the years, the trial judge may
have developed empathy for both parties, despite their perhaps-
excessive zeal for their own cause. It can be unpleasant to write
the words you know they will read: “I do not believe you.” A
compassionate trial court may soften the language in its ruling.
Gentle words do not detract from the ruling’s authority.
Letgolts and Plattner argue the court’s finding is “error on
its face,” because Plattner testified she did fall and did tell the
adjuster, and there was no conflicting testimony.
This record gave the trial court a rational basis for rejecting
Plattner’s credibility. The objective facts of this case made her
uncorroborated claim dubious.
Plattner’s words in 2008 and 2009 suggested her words in
2020 were a tardy and self-serving invention. Plattner was a
practicing lawyer in 2008. She personally wrote two lists of what
had gone wrong with Pinchevskiy’s failed 2008 remodel. Her lists
were very detailed: “Electrical lines to sub-panel cut” and such.
Plattner wrote and sent one list on September 11, 2008. She
wrote the other on January 20, 2009. Neither time did Plattner
say Pinchevskiy defectively built or rebuilt a staircase, which
caused Plattner to fall and to suffer lacerations and a concussion.
Nor did these detailed lists include anything about Plattner’s
supposed medical treatment for her concussion and lacerations.
The notion lawyer Plattner listed the problem with an
electrical sub-panel but left out her concussion is hard to accept.
The trial court was entitled to conclude the key fact was the
evidence that was missing, not the evidence that was present. A
19
concussion is a serious brain injury. Medical bills are a common
and verifiable way for plaintiffs to document bodily injury. The
trial court noted Plattner’s omission of “any reference to a slip
and fall or bodily injury.” “[N]or is there any reference to medical
bills . . . .”
The trial court could infer a simple and rational
explanation for Plattner’s failure in 2008 and 2009 to include
anything about her supposed 2008 fall: her unreported fall did
not occur, she did not report it, and Plattner’s convenient and
uncorroborated 2020 testimony to the contrary was unbelievable.
The trial court fairly could conclude Plattner was not credible.
Nor was the trial court required to accept Plattner’s
implausible explanation for her omissions. Her explanation was
as follows, with our italics:
Q. Ms. Plattner, you authored Exhibit 213,
correct? That is your email to [Boris Pinchevskiy’s]
insurance broker?
A. Yes, I did.
Q. And you said that the purpose of this was to
alert Boris’ insurance broker or the carrier about your
claims, correct?
A. Yes.
Q. You didn’t include any of your personal
injuries, slip and fall in this, did you?
A. It doesn’t look like I did. I thought it covered
damage. I didn’t know it covered injury.
It was reasonable for the trial court to reject Plattner’s
explanation. Plattner did not explain, and her counsel did not
inquire, whether Plattner had a copy of the policy on which she
supposedly based her belief. Either way, her explanation falters.
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If she had a copy, then attorney Plattner testified to a legal
understanding of the insurance policy that was backwards: in
fact, the policy included personal injury and excluded property
damage. If she did not have a copy, then the basis for her belief
is mystifying. Nor did Plattner explain why she would have been
making any decisions adverse to her cause when making initial
demands to an opposing insurance company. The trial court
fairly could discount Plattner’s explanation.
Letgolts and Plattner contend Marks’s November 13, 2009
complaint described and disclosed Plattner’s concussion and
lacerations from her supposed fall. This argument urges an
interpretation of the complaint that is unreasonable. It was
reasonable for the trial court to reject this interpretation.
Context makes this point.
Context begins by recalling attorney Scott Marks sued
three defendants on behalf of Letgolts and Plattner. These three
defendants were insurance agent Hartnett, the Fire Insurance
Exchange, and Pinchevskiy. Marks used three substantive
paragraphs to plead the cause of action against Pinchevskiy.
These three paragraphs follow a logical pattern: duty
arose; duty was breached; breach caused injury. We summarize
this logical pattern.
Paragraph 41 recounted that Pinchevskiy owed Letgolts
and Plattner a duty of reasonable care because the couple
retained Pinchevskiy to remodel their house.
Paragraph 42 is the key, for it described how Pinchevskiy
breached his duty to Letgolts and Plattner. This paragraph
alleged seven particulars:
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1. Pinchevskiy caused property damage to a pool shed,
doors and door frames, wood floors, sprinkler system,
security system, brick patio, fireplace, and driveway;
2. He undermined the foundation of the home;
3. He improperly repaired, moved, maintained, and/or
installed electrical lines, air conditioning lines, and
gas lines;
4. He cut other air conditioning pipes, electrical lines,
and gas lines;
5. He improperly constructed a room addition;
6. He violated statutory provisions against job
abandonment, substandard work, diverting money,
and failing to provide lien protection; and
7. Pinchevskiy failed to account for about $110,000 of
Letgolts and Plattner’s payment of about $187,000.
Next, paragraph 43 described the kinds of damage
Pinchevskiy caused Letgolts and Plattner. First were dollar
damages “in an amount to be proven at trial.” “As a further
direct and legal result of [Pinchevskiy’s] professional negligence,
each Plaintiff has suffered significant emotional distress,
including anxiety, anger, frustration and sleeplessness, as well as
additional trauma to their respective bodies and mind, shock and
injury to their respective nervous systems, all of which continue
to cause them great mental, physical, nervous pain and suffering,
all in an amount well in excess of the minimum jurisdiction of
this Court, in an amount to be proven at trial.”
Letgolts and Plattner focus on the word “trauma,” which we
have emphasized. They say this word shows they had submitted
a claim for “bodily injury” that triggered National’s duty to
defend Pinchevskiy in their suit against him.
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This argument fails. National’s policy defined “bodily
injury” to mean physical injury. With our emphasis, the policy
excluded “emotional, mental, or psychological distress, injury,
trauma or anguish, or other similar condition.” Letgolts and
Plattner respond the word trauma must be interpreted to include
Plattner’s bodily injury from falling down the stairs. But the
trial court disbelieved this testimony. Even if it had not,
paragraph 42 notably omits falling, lacerations, or a concussion,
and it is reasonable to interpret “trauma” in paragraph 43 in
light of paragraph 42. A remodeling debacle reasonably could
inflict a degree of psychological trauma on homeowners. Nothing
in the complaint reasonably supports a broader interpretation of
this word.
DISPOSITION
We affirm the judgment and award costs to the
respondents.
WILEY, J.
We concur:
GRIMES, Acting P. J. OHTA, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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