Filed 3/13/18 Belnap v. Roberts CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



TIM M. BELNAP et al.,

Plaintiffs and Appellants,

v.

AARON D. ROBERTS et al.,

Defendants and Respondents.
D071242



(Super. Ct. No.
37-2014-00003844-CU-FR-CTL)


APPEAL from a judgment of the Superior Court of San Diego County, John S. Meyer, Judge. Affirmed.
Catanzarite Law Corporation and Kenneth Joseph Catanzarite, Brandon E. Woodward for Plaintiffs and Appellants Tim M. Belnap, and Tim M. Belnap, D.D.S., Inc.
Pettit Kohn Ingrassia Lutz & Dolin and Douglas A. Pettit, Jeffrey Kenji Miyamoto, Derek R. Noack for Defendants and Respondents Aaron D. Roberts; Kirby & Kirby and Michael L. Kirby for Defendants and Respondents Circuit McKellogg Kinney & Ross, L.P.
After unsuccessfully arbitrating a dispute with a former business partner, plaintiffs and appellants Timothy Belnap and Tim M. Belnap, D.D.S., Inc. (collectively Belnap) sued defendants and respondents, attorney Aaron D. Roberts and Roberts's then law firm, Circuit McKellogg Kinney & Ross, L.P., eventually asserting causes of action for fraud, legal malpractice, breach of fiduciary duty and violations of the Unfair Competition Law (UCL; Bus. & Prof. Code, § 17200 et seq.). The trial court granted summary judgment in favor of defendants, citing the arbitrator's findings and award and ruling there was no triable issue of material fact on the issue of causation, a necessary element of all of the causes of action. On appeal, Belnap contends the trial court erred in its ruling because (1) Vandenberg v. Superior Court (1999) 21 Cal.4th 815 (Vandenberg) precluded defendants, nonparties to the arbitration, from using the arbitration award as collateral estoppel; (2) defendants did not meet their threshold burden to demonstrate the elements of collateral estoppel applied and thus did not shift the burden to him to demonstrate a triable issue of material fact; (3) he demonstrated triable issues of material fact as to causation; and (4) he demonstrated he suffered an "injury in fact" and "lost money or property" for purposes of his claim under the UCL. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In setting out the background facts, we view the evidence in the light most favorable to Belnap as the losing party, liberally construing his evidentiary submissions while strictly scrutinizing defendants' showing, and resolving evidentiary doubts or ambiguities in Belnap's favor. (Elk Hills Power, LLC v. Board of Equalization (2013) 57 Cal.4th 593, 606; County of San Diego v. Superior Court (2015) 242 Cal.App.4th 460, 467; Code Civ. Proc., § 437c, subd. (c).)
In 2004, Belnap and Connie Pierce, both dentists, engaged Mercer Transition (Mercer) as a consultant to advise them about forming a partnership. Belnap had owned and operated his own dental practice since 1988. In late 2004, a Mercer representative sent both Belnap and Pierce draft form documents including a transition and purchase agreement with a "Post Closing Management Schedule" labelled "Schedule B" (the management schedule or Schedule B) as well as a draft partnership agreement. The representative advised the two to have local counsel review the management schedule to ensure it complied with state law and formalize it into a partnership agreement. About that time, Belnap and Pierce assigned themselves general partnership responsibilities: Belnap would undertake business aspects of the partnership including banking and insurance, and Pierce would be responsible for engaging and overseeing counsel on the partnership's behalf to conform the Mercer draft agreements to California law.
Pierce then hired Roberts to conform the Mercer documents to California law, and the partnership paid Roberts $2,000 in February 2005. Belnap relied on Pierce to jointly engage counsel, and did not question her when she told him she had retained Roberts and his firm to represent both of them in partnership matters. Neither Pierce nor Belnap signed a written fee agreement with Roberts for his legal services. Belnap never personally spoke with Roberts or participated in meetings or phone calls with him; he relied on Pierce to deal with Roberts and was not himself involved in Roberts's legal work.
In March 2005, Pierce gave Belnap a transition and purchase agreement as well as a partnership agreement that she had received from Roberts and his firm. They both signed the documents on behalf of themselves individually and their respective corporations, which formed the partnership effective January 1, 2005. According to Belnap, Roberts had changed the draft agreements to insert a provision stating that each partner had been represented by independent legal counsel in the drafting and execution of the partnership agreement and omit the provision that would have permitted Belnap and Pierce to retain ownership of their own patient base in the event of the partnership's winding up. Later, Roberts received an additional $2,130 in dental services as a payment in kind, which was allocated equally between Belnap and Pierce.
In 2009, Belnap and Pierce again retained Mercer in connection with Mercer's "360 Program," which was intended to assist them in streamlining their business to increase efficiency and profitability. The Mercer representative spoke of a 50/50 allocation of patients between the partners and Belnap understood Mercer's philosophy and advice was to allocate 50 percent of the active client base to each doctor. As part of the program, Belnap agreed to reallocate his and Pierce's patients, and as a result of it, approximately 400 patients were transferred from Belnap to Pierce. Afterwards, Belnap signed an evaluation of the program instruction. Roberts was not involved with Belnap and Pierce's adoption of the Mercer 360 program; after 2005, Belnap did not engage or retain defendants to provide legal services or advice relating to that program, and he did not consult with Roberts at all.
Several years later, Pierce sought to dissolve the partnership and initiated binding arbitration, which took place over the course of nine days in May 2013. The arbitrator ultimately issued a ruling in Pierce's favor, finding the parties had agreed to amend their original partnership documents with the Mercer 360 program to implement an equal partnership with equal ownership and responsibilities, and an equal patient allocation; Belnap had breached the partnership documents by failing to ensure such an allocation and instead taking steps to prevent an equal allocation of patients, as well as by diverting new patients to himself; Belnap had breached his fiduciary duty to Pierce through these actions as well as by making decisions affecting the practice without Pierce's agreement, and by denying her management, control, and access to patient charts and records; and Belnap interfered with Pierce's ability to obtain an equal patient allocation by thwarting reallocation of existing and new patients, and denying Pierce the opportunity to provide dental services resulting from her performance of exams. The arbitrator dissolved the partnership as of March 1, 2014. It awarded Pierce $443,445 in damages in the form of lost profits from June 2009 and declared her the prevailing party in the arbitration.
Shortly before the arbitrator issued the interim award, Belnap sued Roberts and his then law firm. In September 2014, he filed a first amended complaint alleging causes of action for fraud, legal malpractice, breach of fiduciary duty, and violations of the UCL. Belnap alleged defendants secretly and materially changed the draft partnership agreement in such a way to permit Pierce to make more favorable arguments during the arbitration: namely, that she was entitled to see 50 percent of all patients as of January 1, 2005, and was entitled in the event of an impasse between the partners to take 50 percent of all patients. He alleged that as a result, the arbitrator ruled in Pierce's favor, awarding her damages based on an immediate 50 percent patient allocation from January 1, 2005. Belnap further alleged that if defendants had met their professional obligations and disclosed the true nature of their representation, he would have retained independent counsel, would not have entered into the purchase or partnership agreements, and would not have sold his practice in the first place. As for fraud, Belnap alleged defendants led him to believe they represented the partnership, but instead concealed both the fact of their sole representation of Pierce and other facts about the partnership engagement, knowing he would sign the partnership documents and a promissory note without independent counsel review, thus inducing him to sign the purchase agreement, partnership agreement, and a promissory note. He alleged defendants owed him duties of care, loyalty and good faith both as a lawyer and fiduciary with regard to the preparation of transactional documents and work in preparing a general partnership engagement, but breached those duties based on their misconduct. He alleged defendants engaged in unlawful and unfair business practices, causing him to suffer injury in fact and to lose money or property rights. Shortly after Belnap filed his operative pleading, the Orange County Superior Court confirmed the arbitration award and entered judgment in Pierce's favor.
Defendants moved for summary judgment and alternatively summary adjudication of issues in this action. In part, they argued there was no evidence of an attorney-client relationship between Belnap and Roberts, nor was there evidence that Roberts's conduct was the legal cause of any of Belnap's alleged damages. They argued Belnap's failure to read the partnership agreement was his own fault: that he was represented by his own legal counsel and had every opportunity to review and revise the agreement. Submitting the arbitrator's award that Belnap had produced in discovery and other pleadings relating to it, they maintained the arbitrator and the superior court in confirming the award had already rejected Belnap's claim that Roberts made material changes to the partnership agreement. Defendants further argued Belnap lost the arbitration because he breached his and Pierce's partnership agreement as amended in 2009 by the Mercer 360 program, long after defendants' involvement, and because Belnap breached his fiduciary duty and engaged in intentional torts. Defendants sought to rely on the arbitrator's findings and damages award as facts in support of the motion. They also presented portions of sworn testimony concerning the matter in the prior arbitration from Belnap, Pierce and Roberts, and also from Belnap's deposition taken in the present action.
Belnap opposed the motion. As to the issue of causation, he argued there were triable issues of material fact for a jury. He submitted an opposing summary judgment declaration in which he stated, among other things, he would not have signed the partnership agreement drafted by attorney Roberts without separate review by independent counsel if he had known Roberts and his firm only represented Pierce and additionally he would have immediately dissolved their two-month-old partnership; had he known about the changes Roberts made to the partnership agreement, he would have insisted that he and Pierce retain separate ownership of their own patient bases, lists and records. He also submitted the declaration of an expert, attorney James Lundquist, who averred that Roberts jointly represented both Pierce and the partnership without Belnap's informed consent, and Roberts's failure to disclose conflicts, as well as his actions in preparing and modifying the partnership documents and accepting compensation from the partnership for them, fell below the standard of care he owed to Belnap. Belnap argued that as a result of Roberts's changes, Pierce was able to argue she had a retroactive right to see one half of all the patients, causing him to lose 13 percent of his patients and suffering nearly $1,700,000 in damages. Belnap further argued that his damages were caused by the general partnership agreement and the arbitrator's use of that agreement, not the 360 program, to determine the method of dissolving and winding up the partnership; he maintained if Roberts had not deleted section 14 of Schedule B from the partnership agreement as to conditions of winding up he would not have suffered the majority of his damages. Belnap maintained the parties had no intention to have the 360 program amend or modify his and Pierce's oral agreement or the partnership agreement. Finally, Belnap argued his actions in preventing equal patient allocation, making decisions without Pierce, or denying Pierce access to books and records were premised on his trust in Roberts that the partnership agreement equally allocated new patients; he repeated his assertion that had Roberts told him he changed the partnership agreement, he would not have signed it without independent counsel review but instead would have immediately dissolved the partnership.
The trial court granted defendants' motion, ruling Belnap did not establish a triable issue of material fact as to causation. Citing the arbitrator's findings, it ruled it "clear from the Arbitrator's Interim Award that the Arbitrator relied on the adoption and implementation of [the] Mercer 360 Program in determining that the parties had agreed upon a 50/50 allocation of patients . . . ." The court acknowledged Belnap's contention that if he had known about the undisclosed changes in 2005 he would never have proceeded with the partnership, which would have been unwound, but it pointed out the arbitrator had found "in 2009 'the intent of the parties [was] to be equal partners with equal ownership and equal responsibilities,' as evidence[d] by implementing the Mercer 360 Program." According to the court, the documents Roberts drafted "[were] not what caused the Arbitrator to rule in the manner she did." The court found the absence of causation eliminated the UCL cause of action because without it, Belnap "ha[d] no 'injury in fact' or 'lost money or property as a result of the unfair competition' to support that claim" as required by the UCL.
Belnap filed this appeal from the ensuing judgment in defendants' favor.
DISCUSSION
I. Standard of Review
" 'A trial court properly grants a motion for summary judgment where 'all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' " (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347.) Where, as here, defendants are the moving parties, they "must show that the plaintiff has not established, and reasonably cannot be expected to establish, one or more elements of the cause of action in question." (Patterson v. Domino's Pizza, LLC (2014) 60 Cal.4th 474, 500.) The moving defendant can make this prima facie showing either by presenting evidence that conclusively negates an element of a plaintiff's cause of action or by presenting evidence, including through factually devoid discovery responses, that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. (YDM Management Co., Inc. v. Sharp Community Medical Group, Inc. (2017) 16 Cal.App.5th 613, 622.) If defendants make that showing, the burden then shifts to the plaintiff to show a triable issue of one or more material facts exists as to that cause of action. (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154.) If defendants do not meet that initial burden, the burden never shifts and the opposing party need not make any showing at all. (Weinstein v. St. Mary's Medical Center (1997) 58 Cal.App.4th 1223, 1228.)
On our review, " ' "we take the facts from the record that was before the trial court when it ruled on that motion. [Citation.] ' "We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained." ' [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party." ' " (Hampton v. County of San Diego, supra, 62 Cal.4th at p. 347; B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 178.) However, "when a defendant can establish his defense with the plaintiff's admission sufficient to pass the strict construction test imposed on the moving party, the credibility of the admissions [is] valued so highly that the contradicting affidavits may be disregarded as irrelevant, inadmissible or evasive . . . ." (Gray v. Reeves (1977) 76 Cal.App.3d 567, 573-574.) This is because " 'admissions against interest have a very high credibility value. This is especially true when . . . the admission is obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts.' " (Ibid., quoting D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22.)
Although we review a summary judgment de novo, we presume the judgment is correct, and the " 'appellant has the burden of showing error, even if he did not bear the burden in the trial court.' " (GoTek Energy, Inc. v. SoCal IP Law Group, LLP (2016) 3 Cal.App.5th 1240, 1245.) Given that independent standard of review, the trial court's reasoning is irrelevant; this court is not bound by the trial court's stated reasons for its summary judgment ruling and we thus review only the court's ruling and not its rationale. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 895; Jimenez v. County of Los Angeles (2005) 130 Cal.App.4th 133, 140; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 457-458.)
II. Belnap's Contentions
Belnap advances several arguments as to why the trial court erred in granting summary judgment in defendants' favor. He first argues that because defendants were not parties to the private arbitration, the court was precluded as a matter of law by Vandenberg v. Superior Court, supra, 21 Cal.4th 815 from using the arbitrator's determinations as collateral estoppel against him. Second, Belnap argues that notwithstanding Vandenberg, defendants did not demonstrate the second and third elements of collateral estoppel, namely, that the same factual allegations were at issue in the arbitration and the present case or that they were actually litigated and determined at the arbitration, pointing to the arbitrator's refusal to decide whether Belnap should be able to rescind the partnership contract or argue the lack of a contract creating a partnership due to the absence of a conflicts waiver from attorney Roberts. Third, Belnap argues the trial court erred by concluding he did not present evidence raising a triable issue of material fact concerning causation; he repeats his assertions concerning the propriety of collateral estoppel, and further maintains he "proved [defendants'] misconduct resulted in the arbitrator's awarding a substantial and material portion of [Belnap's] pre-partnership patient base to Pierce." (Some capitalization omitted.) Finally, Belnap contends the trial court erred by ruling the lack of a triable issue on causation disposed of his UCL claim because he established he lost money and property as a result of defendants' wrongdoing: their fraudulent concealments concerning their sole representation of Pierce and material changes to the partnership agreement, unlawful misconduct in violating rules of professional conduct, and unfair practices in doing the foregoing acts and accepting Belnap's money for services. Belnap identifies his losses as (1) $4,525 paid to defendants in cash and in-kind exchange of dental services with the understanding he and Pierce were jointly represented by defendants in drafting the partnership agreement; (2) over $1 million by the arbitrator's allocation of a large percentage of Belnap's own patient base to Pierce; and (3) damages and attorney fees from the arbitration which would not have otherwise occurred.
Because Belnap's arguments focus on the causation element of his causes of action, we turn to the legal standards governing that principle.
III. Legal Principles re Causation
To establish a cause of action for legal malpractice, Belnap must prove "(1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney's negligence." (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199; Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 165, 169.) "In the legal malpractice context, the elements of causation and damage are particularly closely linked. . . . The plaintiff has to show both that the loss . . . was proximately caused by defendant attorney's negligence, and that such a loss was measurable in damages." (Hecht Solberg et al. v. Superior Court (2006) 137 Cal.App.4th 579, 591.)
In both litigation and transactional malpractice cases, the plaintiff must prove causation "according to the 'but for' test, meaning that the harm or loss would not have occurred without the attorney's malpractice[.]" (Viner v. Sweet (2003) 30 Cal.4th 1232, 1235, 1241-1243.) In a transactional malpractice case such as this, the plaintiff "need not prove causation with absolute certainty," but rather "need only ' "introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result." ' " (Viner, at p. 1243; see City of Modesto v. Dow Chemical Company (2018) 19 Cal.App.5th 130.) The Viner court further explained that "[t]he requirement that the plaintiff prove causation should not be confused with the method or means of doing so. Phrases such as 'trial within a trial,' 'case within a case,' 'no deal' scenario, and 'better deal' scenario describe methods of proving causation, not the causation requirement itself or the test for determining whether causation has been established." (Viner, 30 Cal.4th at p. 1240, fn. 4.) The plaintiff may use circumstantial evidence to satisfy his or her burden. (Viner, at p. 1242.) "In both litigation and transactional malpractice cases, the crucial causation inquiry is what would have happened if the defendant attorney had not been negligent. This is so because the very idea of causation necessarily involves comparing historical events to a hypothetical alternative." (Id. at p. 1242.)
Causation is also an element of Belnap's causes of action for breach of fiduciary duty and fraud. (See Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 932 [breach of fiduciary duty]; OCM Principal Opportunities Fund v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 869-870 [plaintiff asserting fraud is obliged to
" ' "establish a complete causal relationship" between the alleged [fraud] and the harm claimed to have resulted therefrom' "].)
With regard to the UCL, causation is encompassed in its standing requirements. (See Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322 ["To satisfy the narrower standing requirements imposed by [the enactment of Business and Professions Code section 17204], a party must now (1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that that economic injury was the result of, i.e., caused by, the unfair business practice . . . that is the gravamen of the claim"].) In UCL fraud cases, "reliance is the causal mechanism of fraud" (In re Tobacco II Cases (2009) 46 Cal.4th 298, 326) and thus the plaintiff must demonstrate reliance, that is, that the nondisclosure was " ' "an immediate cause" ' " of the plaintiff's injury producing conduct; that " 'in its absence the plaintiff "in all reasonable probability" would not have engaged in the injury-producing conduct.' " (Ibid.; see also Moran v. Prime Healthcare Management, Inc. (2016) 3 Cal.App.5th 1131, 1143 [to satisfy the causation element under the unlawful prong of the UCL based on misrepresentations or deception, a plaintiff must show " 'actual reliance on the alleged misrepresentation, rather than a mere factual nexus between the business's conduct and the consumer's injury' "]; Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 228.)
IV. Analysis
In conducting our review, we set aside Belnap's challenge to the trial court's asserted use of collateral estoppel and discussion of Vandenberg v. Superior Court, supra, 21 Cal.4th 815. As we have stated, the lower court's reasoning is irrelevant to our determination of whether summary judgment was properly granted, and thus it is not our obligation to examine the specific legal basis for the trial court's ruling. Rather, we focus on whether Belnap has affirmatively shown on appeal, by pointing to the evidence presented below, that he raised triable issues of material fact as to causation. As we shall explain, we conclude, particularly in view of his prior sworn admissions, Belnap cannot raise a factual issue as to whether he would have been better off but for the alleged malpractice; that is, evidence that without defendants' negligence it is more likely than not he would have obtained a more advantageous result, or would have been better off economically because no deal at all would have been reached. (See, e.g., Viner v. Sweet, supra, 30 Cal.4th at p. 1239; Wood v. Jamison (2008) 167 Cal.App.4th 156, 164.)
The issues for summary judgment are framed by the operative complaint. (Higgins-Williams v. Sutter Medical Foundation (2015) 237 Cal.App.4th 78, 80.) Here, the operative pleading presents two scenarios as to how Roberts's alleged malpractice in 2005 caused Belnap harm. The first posits that Roberts's conduct allowed Pierce to make more favorable arguments at the arbitration than she would have otherwise, resulting in the arbitrator's adverse decision: Belnap alleges that because of Roberts's undisclosed material changes to the draft partnership agreement, what should have been a transition from a 63/37 percent patient allocation "became as Pierce argued in arbitration an immediate 50/50 allocation." (Italics added.) Thus, according to the operative complaint, Roberts's "deletions from the draft partnership agreement caused loss, injury and damage when Pierce argued following her April 10, 2013 deposition that she and Pierce APC were entitled to a share of [Belnap's] patient list from commencement with the general partnership in a manner inconsistent with the agreed upon Mercer two phase transition and such other damage subject to proof at the time of trial. As a result, the arbitration award, currently being contested, was against [Belnap] essentially awarding damages to Pierce based upon allocating a part of partnership income based upon her immediate 50 [percent] allocation of all (not just new) patients from January 15, 2005[,] notwithstanding that she had not seen or treated those patients." (Some capitalization omitted.)
The second scenario suggested in the pleading is that had Roberts disclosed that he represented only Pierce and not the partnership, Belnap would have engaged separate counsel "and Belnap would not have proceeded with the partnership upon learning that Pierce had so materially deceived him." (Some capitalization omitted.) Specifically, Belnap alleges "[i]f [Roberts] had met the requirements imposed upon him . . . by the Rules of Professional Responsibility, the Probate Code, the Business & Professions Code and well[-]established at the time decisional law, [Belnap] would have retained independent legal counsel and knowing that Pierce had tried to deceive him would not have signed either the purchase agreement or the partnership agreement, nor accepted the note and would have unwound the oral partnership agreement immediately. . . . [T]he purchase agreement was not signed until March 5, 2005[,] and no money had changed hands so the transaction would have been easily unwound and Plaintiffs would have enjoyed sole control of the dental practice today. [¶] . . . As a result, but for [Roberts's] misconduct, incompetence, constructive fraud and fraud, [Belnap] would not have sold the dental practice in the first place." (Some capitalization and italics omitted.) Belnap reiterates this theory in his opposing summary judgment declaration.
In his opposing summary judgment declaration, Belnap averred that as a result of defendants' undisclosed changes to the partnership agreement, he (1) lost the arbitration and suffered a $766,996.38 judgment as of February 2015; (2) incurred attorney fees and costs: $250,000 in defending the arbitration and $170,000 in filing bankruptcy; (3) incurred $400,000 in damages due to loss of his dental practice; and (4) suffered "[c]redit damages from the judgment and adverse affects [sic] on my ability to conduct business" of not less than $100,000.
It is true that causation is generally a question of fact that cannot be resolved by summary judgment unless, under undisputed facts, there is no room for a reasonable difference of opinion. (Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1531-1532; Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 864.) And in moving for summary judgment or summary adjudication, it was defendants' burden to show that neither scenario, and no item of the asserted damages, was attributable to their conduct, and that they were entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subds. (c), (f)(1) [motion for summary judgment must completely dispose of a cause of action or claim for damages].) We conclude having independently reviewed the summary judgment papers that neither scenario survives scrutiny.
1. Damages Stemming from the Lost Arbitration
The first scenario—that absent defendants' negligence Pierce would have been deprived of certain beneficial arguments and Belnap would thus have achieved a better result in the underlying arbitration—fails in view of Belnap's prior admissions and the arbitrator's decision. Belnap admitted in his deposition that he and Pierce agreed to equally reallocate their patients, and in fact transferred approximately 400 of his patients to Pierce under the 360 program, with which Roberts and his firm had no involvement. He admitted in discovery that he did not engage or retain defendants to provide any legal services or advice regarding or relating to the 360 program. The arbitrator's decision turned not on the original partnership documents or the parties' patient allocations stemming from their original agreement, but their later decision in June 2009 to immediately reallocate existing patients equally via the 360 program. And the arbitrator specifically declined to base her damages award to Pierce on patient allocations agreed upon before June 2009. (See footnote 2, ante.) Thus, that Belnap claimed a different allocation of patients applied before 2009 was irrelevant to the arbitrator's decision. It is not enough for Belnap to defeat summary judgment to show that absent Roberts's misconduct the arbitrator could have ruled differently; he must produce evidence to support a conclusion that, more likely than not, it would have ruled more favorably to him. Given the grounds for the arbitrator's decision and his binding admissions, Belnap cannot establish that but for defendants' alleged misconduct or negligence in preparing the original partnership agreements, or their failure to disclose conflicts, it is more likely than not the arbitrator would have reached a decision in Belnap's favor, or any different, more favorable decision to him. In sum, Belnap cannot meet his burden to introduce evidence that " ' "affords a reasonable basis for the conclusion that it is more likely than not that the conduct of . . . defendant[s] was a cause in fact of the [lost arbitration]." ' " (Viner v. Sweet, supra, 30 Cal.4th at p. 1243.)
Belnap nevertheless maintains that the arbitrator did not rely on the 360 program, but section 9.2 of the general partnership agreement to determine the terms of the partnership's winding up "as she saw fit." He suggests that had Roberts met his duties of disclosure and loyalty, the arbitrator would have been obligated to wind-up the partnership pursuant to section 14 of Schedule B, which he asserts "limited [the arbitrator] from allocating [Belnap's] initial pre-Partnership patient base which he treated prior to the Partnership." The argument, however, misreads section 14 of Schedule B, which required the parties only to "make a good faith attempt to come to an agreement" on retaining ownership and control of their respective patient base and records, and then settle disputes and disagreements as to those matters "by binding arbitration in accordance with the existing rules of the American Arbitration Association . . . ." The arbitrator's role in an impasse is not different in substance from section 9.2 of the signed partnership agreement, which states: "In the event the partners are not able to reach unanimous agreement as to the method, terms and procedures to complete a winding-up upon dissolution, the partners agree to submit the matter to binding arbitration in San Diego, California, in accordance with the commercial arbitration rules of the American Arbitration Association." (Some capitalization omitted.) Contrary to Belnap's arguments, the sole limitation on the arbitrator in both draft and final partnership terms was the arbitrator's required use of American Arbitration Association rules.
Our consideration of the grounds for the arbitrator's decision does not use that decision to preclude Belnap's relitigation of issues decided by the arbitrator, it simply goes to whether the summary judgment evidence demonstrates factual issues for a jury on the proper causation inquiry: what would have happened at the arbitration if defendants had not been negligent or otherwise engaged in misconduct. (Viner v. Sweet, supra, 30 Cal.4th at p. 1242.)
2. Damages Stemming from Belnap's Entry into the Partnership Agreement
Nor does Belnap's second theory of causation—that he would never have sold his practice or entered into the partnership agreement in the first place had he known of Roberts's changes to the partnership documents—survive in view of Belnap's admission that he in fact read all the documents, both draft and final, before signing them. It is evident from Belnap's opposing papers, as well as his deposition admissions, that he never spoke or met with Roberts in connection with Roberts's legal work on the partnership documents, that Belnap's predicate factual theory is one of nondisclosure or concealment, not any affirmative misrepresentation, by Roberts. "The existence of a triable issue of material fact as to [an] alleged nondisclosure . . . depends on whether [defendants] failed to disclose any material information, whether that information was known or accessible only to [defendants], and whether [defendants] knew that that information was not known to [Belnap] or within the reach of their diligent attention." (Stevenson v. Baum (1998) 65 Cal.App.4th 159, 165.)
In his opposing summary judgment declaration, Belnap states: "On March 22, 2005, Pierce presented me with what she explained were [defendants'] confirmed written agreements of the draft agreements of the transition and purchase agreement . . . and 'partnership agreement' . . . she had received from [defendants]. She explained these documents were the conformed to California law documents [sic] we had received, reviewed and approved from Mercer. Because I had read the draft agreements back then, believing no changes were made other than to conform them to California law, my wife and I signed the [defendant-]drafted agreements Pierce presented to me at the same time Pierce and her husband John signed. I understood the proviso in the written agreements that we as partners at that time were represented by 'independent legal counsel' to mean this would be required in the event of a disclosed conflict of interest. Schedule-B did not include any requirement that Pierce and I be represented by independent counsel, and making such a requirement in the [defendant-]drafted partnership agreement was contrary to my expectations and what I knew Pierce and I had originally agreed upon. At no time prior to signing the purchase agreement and partnership agreement had I been told that [defendants] had told Pierce that they only represented her interests and not mine. Nor had I been contacted by any person or presented with any prior drafts, no letters of explanation, no highlighted or red-lined provisions showing that material terms had been changed from the original Mercer provided draft agreements which I had read and approved." (Italics added, some capitalization omitted.) Belnap asserts he was not informed of the changes, which were made "without [his] knowledge or consent," and further states he "would not have executed the Roberts written draft partnership agreement without review by separate and independent counsel of material terms if I had known [defendants] only represented Pierce and not myself and the partnership and would have immediately dissolved our partnership of two months." (Some capitalization omitted.) Belnap asserts: "It was critical to me in moving forward with the Partnership that in the event that Pierce and I did not agree then I could unwind and take back my patient base and continue my practice." This evidence suggests Belnap did not know of Roberts's changes, and could not have discovered them without counsel.
But Belnap's sworn testimony during the arbitration proves otherwise. During that proceeding, Belnap was sworn and testified under oath that he read the draft partnership documents received from Mercer in December 2004, as well as the partnership documents modified by Roberts that he eventually signed, "cover to cover." Belnap's prior sworn testimony, which he cannot now contradict on summary judgment (see Mikialian v. City of Los Angeles (1978) 79 Cal.App.3d 150, 162-163; Gray v. Reeves, supra, 76 Cal.App.3d at pp. 573-574), demonstrates that he in fact read all the partnership documents. It is undisputed that at the time, Belnap, a dentist, had operated an existing dental practice of his own for many years, thus he possessed not only an attention to detail but also a certain amount of experience in commercial business. Yet Belnap never raised any issues with the final partnership documents or brought up the omission of paragraph 14 concerning what would happen upon the partners declaring an impasse, despite his later claim that such a provision was so critically important to him. Contrary to Belnap's claim that he had no reason to question Roberts's actions trusting he was representing the partnership, the omissions and insertions in the partnership documents should have alerted him to the need for clarification. In this business transaction, Belnap's decision to proceed and execute the partnership documents despite having read all of the draft and final partnership documents, constitutes evidence that Belnap's decision did not turn on Roberts's concealment or nondisclosure. Belnap's unequivocal admission that he read all of the partnership documentation prevents him from now claiming he would not have entered into the agreement had he known of the changes Roberts made. (See, e.g., Swiss Property Management Co., Inc. v. Southern California IBEW-NECA Pension Plan (1997) 60 Cal.App.4th 839, 845 ["the sellers here signed a subordination agreement which clearly notified them that the lender would not monitor disbursement of funds. If the sellers desired the lender to monitor fund disbursement, they should have raised the issue with the lender before signing the documents. Even though they apparently relied on fraudulent representations by the buyer that the lender would monitor the use of funds, they should not have done so in view of the explicit language to the contrary in the CLTA subordination agreements"].)
Additionally, having read both the draft and final documents and signed the latter, Belnap cannot be deemed to have actually relied on Roberts's alleged nondisclosures for purposes of causation under the UCL. (Kwikset Corp. v. Superior Court, supra, 51 Cal.4th at p. 322; Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1349
[" '[T]here must be a causal connection between the harm suffered and the unlawful business activity. That causal connection is broken when a complaining party would suffer the same harm whether or not a defendant complied with the law' "]; Hall v. Time Inc. (2008) 158 Cal.App.4th 847, 855.) Belnap must show Roberts's nondisclosure was an " ' "immediate cause" ' " of his own injury-producing conduct—his entry into the partnership agreement—and Belnap may do so by showing he " ' "in all reasonable probability" would not have engaged in the injury-producing conduct' " but for the nondisclosure. (In re Tobacco II Cases, supra, 46 Cal.4th at 326, quoting Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1110-1011.) Belnap was aware of the very information that he claims was not disclosed and executed the documents anyway. He cannot prove he would have behaved differently had Roberts advised him of the changes or otherwise complied with the law.
Even if Belnap somehow could demonstrate a factual issue as to actual reliance, we would conclude such reliance was not justifiable for purposes of fraud. In a fraud case, justifiable reliance is the same as causation. (Hall v. Time Inc., supra, 158 Cal.App.4th at p. 855, fn. 2.) To establish justifiable reliance under any theory, a plaintiff "must set 'forth facts to show that his or her actual reliance on the representations was justifiable, so that the cause of the damage was the defendant's wrong and not the plaintiff's fault.' " (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1066.) The reasonableness of Belnap's reliance is judged by reference to his knowledge and experience. (OCM Principal Opportunities Fund, supra, 157 Cal.App.4th at p. 864.)
" '[W]hether a party's reliance was justified may be decided as a matter of law if reasonable minds can come to only one conclusion based on the facts.' " (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239.)
This is a case where reasonable minds can only come to one conclusion based on the facts presented and Belnap's admissions: that he could not justifiably rely on any purported nondisclosures regarding the material terms of the partnership agreement and related documents in view of his actions in reading them, his inaction after learning of their contents, and his execution of the documents in any event. If the presence of the impasse clause was so significant to Belnap, he would have raised further questions about it upon seeing it was left out of the final documents. (See Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 300-304 [defendant landlord demonstrated no triable issue of fact as to a plaintiff tenant's justifiable reliance on defendant's representation concerning other tenants in a shopping center; tenant admitted in deposition he had read the entire lease before signing it, which contained a provision stating the tenant did not rely on the existence of other tenancies and the landlord did not make representations as to the type or number of tenants, but never requested revisions and executed the lease; "If the represented tenancies . . . were in fact at all significant to his decision to enter into a lease . . . [the provision] should have waved a red flag, or at least a yellow flag, in front of him. [¶] . . . [¶] In the complete absence of any actions taken to question, clarify, or confirm the contractual status of the three cotenants, to notify his attorney of the representations or to modify [the provision], [the plaintiff tenant] could not justifiably rely on his understanding of the representations and gestures made by [the landlord]"].)
DISPOSITION
The judgment is affirmed.


O'ROURKE, J.

WE CONCUR:



McCONNELL, P. J.



IRION, J.