Case Number:?BC650381????Hearing Date:?May 08, 2019????Dept:?24
Defendants?Boucher, LLP, Raymond P. Boucher, Hermez Moreno and Brian Bush?s?motion for summary judgment is DENIED.
This legal malpractice action arises out of Plaintiff Lenny K. Dykstra?s (?Plainitff?) allegations that his former attorneys, Defendants Boucher, LLP (the ?Firm?); Raymond P. Boucher (?Boucher?); Hermez Moreno (?Moreno?); and Brian Bush (?Bush?) (collectively ?Defendants?), failed to properly prosecute his civil rights action brought under 42 U.S.C. ? 1983 against the County of Los Angeles Sheriff?s Department and numerous individual deputies,?Lenny K. Dykstra v. County of Los Angeles, et al., LASC Case No. BC541436, involving two alleged beatings of Plaintiff that occurred inside the County Jail on or about April 5 and April 6, 2012 (the ?Underlying Action?).
Plaintiff?in pro per?commenced this action against Defendants on February 14, 2017. On July 24, 2017, Plaintiff, represented by counsel, filed the operative second amended complaint (?SAC?) alleging two causes of action for negligence (legal malpractice) and breach of fiduciary duty. On November 21, 2017, the Court sustained Defendants? demurrer to the breach of fiduciary duty claim without leave to amend. Defendants filed an answer to the SAC on December 1, 2017.?Trial is set for June 11, 2019.
On February 22, 2019, Defendants moved for summary judgment against the sole cause of action for legal malpractice. On April 24, 2019, Plaintiff filed an opposition. On May 3, 2018, Defendants submitted a reply.
Summary Judgment Standard
A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed. (See CCP ?437c(f)(1).) ?A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.? (Ibid.) A cause of action has no merit if: (1) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action. (See CCP ?437c(n);?Union Bank v. Superior Court?(1995) 31 Cal.App.4th 573, 583.) Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action. (See CCP ?437c(o)(2);?Union Bank, supra, 31 Cal.App.4th at 583.)
In order to obtain summary judgment, ?all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action.? (See?Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; see also?Mitchell v. United National Ins. Co. (2005) 127 Cal.App.4th 457.) ?Although he remains free to do so, the defendant need not himself conclusively negate any such element.? (Ibid.) ?Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. If the plaintiff does not make such a showing, summary judgment in favor of the defendant is appropriate.? (See?Mitchell, supra, 127 Cal.App.4th at 467.)
Until the defendant meets this evidentiary burden, the plaintiff has no burden to present evidence showing a triable issue of fact. (SeeHagen v. Hickenbottom?(1995) 41 Cal.App.4th 168, 178; see also?Hawkins v. Wilton?(2006) 144 Cal.App.4th 936, 940, citing?Duckett v. Pistoresi Ambulance Service, Inc. (1993) 19 Cal.App.4th 1525, 1533 [?[w]here the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff?].)
Evidentiary Rulings
Plaintiff?s objections to the Bush Declaration are OVERRULED as to nos. 1-23. Plaintiff?s objection to Exhibit 29 of the Compendium of Exhibits (?COE?) is SUSTAINED.
Defendants? objections to the Pedroza Declaration are OVERRULED as to no. 1-3, 5-8, and SUSTAINED as to nos. 6 (hearsay for Plaintiff?s statements). Defendants? objections to the Dykstra declaration are OVERRULED as to nos. 9-14. Defendants? objections to the Kuylman declaration are OVERRULED as to nos. 15-46.
Legal Malpractice and Causation
Defendants dispute the element of ?but for? causation for the sole legal malpractice cause of action.
To prove legal malpractice, a plaintiff must establish: 1) the duty of the professional to use such skill, prudence, and diligence that other members of the profession commonly possess and exercise; 2) breach of that duty; 3) proximate causal connection between the negligent conduct and the resulting injury; and 4) actual loss or damage resulting from the professional’s negligence. (Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP?(2010) 183 Cal.App.4th 238, 247-48.)
As to causation specifically, a plaintiff must prove that, but for alleged malpractice, it was more likely than not that the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred. (Charnay v. Cobert?(2006) 145 Cal.App.4th 170, 179-180.) It serves the essential purpose of ensuring that damages awarded for the attorney’s malpractice actually have been caused by the malpractice. (Viner v. Sweet?(2003) 30 Cal.4th 1232, 1241-1244.) Causation is determined by case-within-a-case approach ? i.e. what should have been the result in the underlying matter. (Ambriz v. Kelegian?(2007) 146 Cal.App.4th 1519, 1531.) Summary judgment of no causation in legal malpractice claims is only permissible if under undisputed facts, there is no room for a reasonable difference of opinion. (Id. at 1531-1532; see?Dawson v. Toledano?(2003) 109 Cal. App. 4th 387, 396-397 [noting that ?instances are very rare? in which there is no question of fact on causation].)
Defendants provide the following facts in moving against ?but for? causation. Plaintiff?s underlying claims arose from two incidents: first, in his cell at Men?s Central Jail (?MCJ?) and a second at Garfield Medical Center (?Garfield?). He claimed he was beaten by LASD deputies in his cell at the former and punched by another deputy at the latter. (Bush Decl., ?? 6, 7, 8, 13, 14.) Plaintiff retained attorney Robert E. Barnes (?Barnes?) and filed the underlying action, alleging that certain LASD deputies, their superiors, medical personnel, and others violated his Eighth Amendment right to be free from cruel and unusual punishment. (Id., ? 2.) The underlying complaint named twenty-four defendants, but Barnes served only the County of Los Angeles, Sergeant Salgado, Captain Ornellas, Deputy Newhouse, and Deputy Rothrock with the summons and complaint. (Id., ? 3.) Throughout the litigation and prior to Defendants? representation, Plaintiff failed to respond to voluminous discovery requests. (Ibid.) Plaintiff fired Barnes and substituted himself into the action in pro per on July 21, 2015. (Id., ? 3.) Plaintiff failed to appear at an August 13, 2015 order to show cause hearing on his failure to serve the remaining defendants. (Ibid.)
Defendants substituted in as Plaintiff?s counsel in the Underlying Action on September 9, 2015. (Bush Decl., ? 4; COE Ex. 4.) Plaintiff maintained that his claim for damages was based solely on the first beating and instructed Defendants not to make a claim based on the incident at Garfield. (Bush Decl., ?? 6, 7, 8, 13, 14.) Defendants focused the development of the case on holding the County of Los Angeles liable under?Monell v. Dept. of Social Services of City of New York?(1978) 436 U.S. 658, which does not require plaintiffs to identify the individuals responsible for a constitutional violation. (Ibid.)
On October 30, 2015, the Court dismissed the named, unserved defendants without prejudice at the case management conference. (Bush Decl., ? 3; COE Ex. 3.) That left five defendants: the County of Los Angeles, Deputy Newhouse, Deputy Rothrock, Sergeant Salgado, and Captain Ornellas. (Ibid.) Defendants filed a first amended complaint on November 12, 2015, naming as defendants the County of Los Angeles, Deputy Newhouse, Deputy Frazier, Deputy Gonzalez, Commander Ornelas, and Sergeant Salgado. (Bush Decl., ? 9; COE Ex. 5.) The underlying defendants moved to strike the FAC, claiming that it violated the court?s October 30, 2015 order by naming unserved defendants Deputies Frazier and Gonzalez. (Bush Decl., ? 9; COE Ex. 6.) On March 4, 2016, Defendants stipulated with the Underlying Action?s defendants to allow Plaintiff to file a second amended complaint removing those deputies, dismiss without prejudice Deputy Rothrock (tolling the statute of limitations as to that individual deputy for 100 days). (Bush Decl., ?? 9?10; COE Exs. 7, 8.)
On September 6, 2016, they took longtime bookkeeper and assistant Dorothy Van Kalsbeek (?Van Kalsbeek?) deposition. (Bush Decl., ? 12; COE Ex. 11.) There, they discovered that Plaintiff lied about his missing teeth, as the authenticated photos she took months before Mr. Dykstra entered MCJ that showed that he was already missing most if not all of his teeth before the alleged beating. (Ibid.) Defendants thus believed there was no chance of succeeding in the suit, and on September 12, 2016 they met with Plaintiff to discuss that they would have to withdraw as counsel. (Bush Decl., ? 12.) Plaintiff abruptly fired Defendants only minutes into the meeting. (Id., ? 13; COE Ex. 12.)
After being fired, Attorney Aaron Aftergood (?Aftergood?) substituted into the Underlying Action as counsel for Plaintiff on October 6, 2016. (Williams Decl., ? 14.) On October 7, 2016, Mr. Dykstra dismissed without prejudice Captain Ornellas because he ?had nothing to do with the case.? (COE Exs. 14; 15, 335:4?10.) Aftergood also filed an opposition to the motion for summary judgment filed by defendants County of Los Angeles, Commander Ornelas, and Sergeant Salgado. (COE Ex. 30; Williams Decl., ? 17.) On October 21, 2016, the court in the underlying action granted the summary judgment motion of the County and Sergeant Salgado. (COE Ex. 16.) At this point, only Deputy Newhouse (the deputy who allegedly assaulted Plaintiff at Garfield) remained as a defendant.
Aftergood deposed Deputy Rothrock, Brian Yanagi (LASD lieutenant in charge of MCJ data systems), Adam Kennedy (MCJ custodian of records), and Sergeant Salgado. (COE Exs. 17?20; Williams Decl., ?? 4?7.) Defendants contend that the depositions confirmed that Deputy Rothrock had twice punched Plaintiff in the face at Garfield to prevent him from assaulting a nurse. (Bush Decl., ? 13; COE Ex. 17, 16:16?19:4.) Plaintiff voluntarily dismissed him without prejudice on November 30, 2016 due to lack of evidence against Deputy Newhouse. (Id., Exs. 15, 392:8; 21; Williams Decl., ? 8.)
Defendants essentially argue that based on these facts Plaintiff cannot establish but for causation as to any particular underlying defendant, including the County and the individual LASD deputies. Defendants assert that Plaintiff?s factually devoid discovery responses demonstrate that no evidence exists for the underlying claims.
Defendants argue that because about 20 underlying defendants were dismissed because Plaintiff failed to serve them with the underlying complaint and summons. Defendants argue that this led to the underlying court?s dismissal of the unserved individual defendants without prejudice at the case management conference on October 30, 2015. (Bush Decl., ? 3; COE Ex. 3.) These underlying defendants include Deputy Martinez, Deputy Ibarra, Deputy Gonzalez, Deputy Frazier, Deputy Nguyen, Deputy Dominguez, Deputy Soriana, Sergeant Ward, Paul Tanaka, Hyo Lee, Jocelyn Ulpindo, Kaori Rank, Akelat Gazehegne, Rita Banaga, Toni Alvarado, Shirley Julagay, Doctor Silvanskaya, Doctor Kyazze, and Steve Whitmore. Defendants surmise that therefore they cannot be held liable for any claims associated with those individual defendants, since there is no causal relationship between their representation and their dismissal. However, Defendants? failure to serve the individual defendants could provide a basis for ?but for? causation for their dismissal.
Defendants admit that they entered into the case almost two months prior to the court?s dismissal of those parties. In any event, Plaintiff establishes through his evidence that Defendants were aware that only five of the 25 defendants had been served; but that over the following month and a half, they did absolutely nothing to cure the failure of service. (Plaintiff?s Separate Statement (?PSS?) 88.) Certainly, but for Defendants failure to serve these defendants, the individual defendants would not have been dismissed and have therefore been potentially liable. The fact Defendants may?share?this causation with Plaintiff (when he acted in pro per from July 21, 2015 to September 9, 2015) or Barnes (the initial attorney) does not support summary judgment on the but-for causation. Rather, this enters the realm of proximate causation which is generally a factual issue for a trier of fact.
Defendants also show no evidence that they could not have otherwise cured the failure to serve by serving the individual defendants in time, or that Plaintiff could have effectively served them after Defendants left the case. (See?Steketee v. Lintz, Williams & Rothberg(1985) 38 Cal.3d 46, 57 [an attorney?s alleged mistake can be cured by subsequent counsel, and that subsequent counsel fails to cure it, it is the subsequent counsel who proximately caused the client?s harm, not the initial attorney].) Further, the fact that they did not serve defendants is not speculative. Rather, this is an established and undisputed fact. Defendants may argue that other factors went into the dismissal of those defendants, but this does not cut off but-for causation.
Defendants therefore must demonstrate that the underlying claims against?all the underlying defendants?would have failed irrespective of any alleged misconduct by Defendants.
But-For Causation and Viability of the Underlying Claims
As discussed above, the instant analysis requires an analysis of the underlying claims, including the section 1983 civil rights claim. Under the Eighth Amendment, a convicted prisoner has the right to be free from cruel and unusual punishment. (Wood v. Beauclair?(9th Cir. 2012) 692 F.3d 1041, 1045.) Prevailing on a claim that his Eighth Amendment rights were violated requires a prisoner to prove: (i) a deputy used force against him, (ii) the force used was excessive, (iii) the deputy was acting or purporting to act in the performance of his official duties, (iv) he was harmed, and (v) the deputy?s use of excessive force was a substantial factor in causing his harm. (CACI No. 3042.) ?[T]he unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment.? (Whitley v. Albers?(1986) 475 U.S. 312, 319.) There is no liability for excessive force in a convicted prisoner case where the acts in question were not performed maliciously or sadistically for the sole purpose of causing harm, but were made in good faith to try to maintain or restore discipline. (Ibid.) A qualified immunity analysis has two prongs: (l) whether the officer violated a constitutional right, and (2) whether the right was “clearly established” when the officer acted. (Pearson v. Callahan?(2009) 555 U.S. 223, 232.)
The Ninth Circuit has identified five factors to determine whether force used against a prisoner is malicious or sadistic: (1) the extent of injury suffered by an inmate, (2) the need for the application of force, (3) the relationship between that need and the amount of force used, (4) the threat reasonably perceived by the responsible officials, and (5) any efforts made to temper the severity of a forceful response. (Furnace v. Sullivan?(9th Cir. 2013) 705 F.3d 1021, 1028.)
Defendants argue that the claims were not legally and factually viable to any underlying defendant because Plaintiff had no evidence regarding the underlying attack, that qualified immunity applied for the deputies, and immunity applied to the County and supervisors. (Defendants? Statement of Undisputed Facts (?SUF?) 33-41.) This includes various RFAs and FIs that Defendants argue show that Plaintiff has no facts backing up his denial that he did not have evidence of the underlying assaults or exceptions to qualified immunity. (See e.g. COE Ex. 22 [RFA No. 101; Ex. 23, p. 10, Denial No. 101]; Ex. 25 [17.1 response regarding denials 100?102, 107 and 108, stating that the ?facts? supporting his denial that none of the Defendants? alleged errors or omissions caused him damage are ?Defendants owed Plaintiff has [sic] their client a duty to do the most to protect and prosecute Plaintiff?s lawsuit, as they held themselves out to be experts in this field, yet, Defendants did not take a single depositions [sic], they dismissed named defendants without Plaintiff?s knowledge or consent and caused Plaintiff?s case to be dismissed.?].) Defendants also assert that at deposition Dykstra could not provide testimony concerning how the case would have been different, or any other fact required of either underlying claim. (SUF 34-41.)
Plaintiffs generally argue that Plaintiff did not provide legal conclusions at his depositions, and that such evidence does exist such as the Declaration of Raul Isaac Pedroza, who was present at the incident at MCJ. Indeed, Plaintiff demonstrates that 1) he has evidence, including testimony from other eye witnesses, of an assault that occurred at MCJ, 2) he has evidence of his physical damages, and 3) he has evidence that qualified immunity would not have applied.
Critically, Plaintiff provides two declarations which establish not only that the underlying assault occurred at MCJ, but that it was done purposelessly and unprovoked. Pedroza?s declaration establishes that on the night of April 5, 2012, Michael Frazier, Osbaldo Gonzalez, and Manuel Ibarra were on duty. (Pedroza Decl., ? 5.) The deputies walked past his cell and continued to walk toward Mr. Dykstra?s cell and that he heard one of the deputies whistling, ?Take Me Out to the Ball Game.? (Id., ? 8.) He heard a brief exchange of words between the deputies and heard them open Pedroza?s cell door open. (Id., ? 9.) They did not ?cuff up? Plaintiff per procedure. (Id., ? 10.) He then heard yelling and screaming coming from Plaintiff?s cell. (Id., ? 11.) He could see in a one-way mirror that there was an exchange of blows, that Plaintiff was screaming, and that deputies were pounding on him. (Id., ?? 11-13.) He saw several other officers, including Deputies Chris Nguyen and Daniel Martinez and Sergeant Jose Salgado, enter the cell. (Id., ?? 14-16.) Afterward, he witnessed the deputies dragging the unconscious Plaintiff out of his cell and down the tier by his arms and legs. (Id., ?? 18-19.) Plaintiff?s own declaration corroborates this version of the events. (See Dykstra Decl., ?? 2-6.)
Plaintiff presents evidence that Defendants failed to interview Pedroza. Pedroza was released on or around March 15, 2013, and he was available to offer testimony that would establish the identities of Plaintiff?s assailants and that also would independently corroborate Plaintiff?s account of the assault in his cell. (PSF 43-52.) As show by the declaration, Pedroza identifies the deputies, which was corroborated by deposition testimony from Sergeant Salgado, whose deposition was also neither noticed nor taken by Boucher. (PSF 122.) Defendants also ignored evidence already in their possession, including the MCJ shift logs and incident reports, and other available evidence that showed the identity of the deputies working on the cell row at the time of the attack. (PSF 84.) Defendants object to Plaintiff?s facts as irrelevant; yet, the facts bear relevance to both the viability of the underlying claims and the causal relationship between Defendants? actions and the omitted evidence?the very thing that Defendants attack.
In sum, Plaintiff?s evidence establishes that Deputies Michael Frazier, Osbaldo Gonzalez, and Manuel Ibarra (potentially later joined by Chris Nguyen, Daniel Martinez, and Jose Salgado) attacked and beat Plaintiff while at his cell in MCJ without provocation. Certainly, sheriff deputies coming into Plaintiff?s cell in the middle of the night and beating him could reasonably be considered excessive and that the guards were acting ?maliciously? such that the guards were not protected by qualified immunity. This evidence suggests that that his injuries were severe (PSF 47-52, 58-60, 69-75), and that there was no need for the application of force, let alone the seemingly unnecessary degree of force. Plaintiff thus establishes a dispute of material fact over whether but for Defendants? failure to serve the various individual defendants would have been more likely than not that the plaintiff would have obtained a more favorable judgment or settlement in the underlying action.
The Court also notes that Defendants raise collateral estoppel as to the qualified immunity issues. This does not defeat Plaintiff?s potential claims regarding the unserved defendants, as they were not parties to the case at the time of the MSJ, and the Court only considered the County?s role as a state actor and Sergeant Salgado?s supervisory liability. Thus, the Court need not comment on the MSJ?s applicability to the instant case, or?Morell?liability, as other disputes of fact preclude summary judgment.
Accordingly, Defendants? motion for summary judgment is DENIED.
Moving party is ordered to give notice.