Mills v. Triay

Filed 6/22/07 Mills v. Triay CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Diane Mills (Mills) sued her estate planning attorney, Charles A. Triay (Triay), for professional negligence, claiming he allowed Mills to select as her attorney-in-fact an untrustworthy individual without adequate investigation of his background. The trial court granted Triays motion for summary judgment and we affirm.

I. Statement of Facts

A. Mills Meets Kahuanui

Millss mother died in early 2004, after which Mills became severely depressed. In March 2004, Mills met Robert Kahuanui, who gained her trust and confidence and began supplying her with vicodin and marijuana. At some point Kahuanui told Mills he had a previous conviction for drug dealing.

Mills apparently has a long history of mental illness and has been institutionalized involuntarily several times. After she began taking the vicodin and using the marijuana supplied by Kahuanui, Mills became paranoid that she would be institutionalized again. Specifically, she feared that her husband, from whom she was estranged, would lock [her] up. Kahuanui told her he would ensure she would not be institutionalized if Mills gave him her power of attorney concerning health care decisions. Kahuanui then asked a friend and attorney for the name of a lawyer, and he was given Triays name.^[1]

B. Millss Meetings with Triay

Kahuanui called Triay and informed him that Mills was a friend who recently inherited a house from her mother, and whose husband was threatening to establish a conservatorship over her. Kahuanui stated that Mills and her husband were either going through divorce proceedings or contemplating filing for divorce. Kahuanui also informed Triay that Mills had a history of drug usage and a prior 5150 psychiatric hold. Triay agreed to consult with Mills.

On May 6, 2004, Kahuanui and his wife brought Mills to Triays office. Mills told Triay that she had become the successor trustee for her mothers trust. Triay described the documentation needed to transfer title of her mothers house from the trust to Mills. According to Triay, Mills then stated that her primary and most urgent concern was that her husband was trying to get ahold of her assets.^[2] She stated that if she passed away, her husband would inherit all of her assets. She told Triay that she had no children and that her brother had died leaving no children, and she wanted to name Kahuanui as the beneficiary of her will.

According to Triay, after discussing with Mills the options of wills, a living trust and powers of attorney, Mills decided she wanted a simple will and durable powers of attorney for financial matters and health care, both of which would appoint Mr. Kahuanui as her attorney in fact.  Mills disputes these facts and states that she had no idea that Triay had prepared a power of attorney for financial affairs, and she d[id] not believe [she] asked him to do it. She also admitted she did not read any of the documents before signing them and that it was possible Triay had explained all of the documents to her but she did not remember.

After all the documents were signed and notarized, Mills went outside with Kahuanuis wife, while Kahuanui waited for, and received, copies of the documents.

Triay observed Millss demeanor and behavior during their meeting. Triay described Mills as somewhat agitated and noted that she wore her dark glasses inside and slurred her words slightly. Triay also took note of the fact that Mills was quite thirsty and drank two cups of coffee and a glass of water during the one-hour conference. Mills also offered to pay $20.00 for the coffee served by Triays assistant. It was Triays impression that Mills was mildly intoxicated or that she had been intoxicated the night before and was coming down from whatever alcohol or drugs she had consumed the previous night. Triay concluded, however, that Mills had the testamentary capacity to create the will and powers of attorney because she readily expressed her desire for the documents, she recollected the nature and situation of her assets, and she understood her relation to persons who had claims on her property and whose interests were affected by the will and powers of attorney.

Triay also had a favorable impression of the Kahuanuis. It appeared they sincerely cared for Mills, were trying to help her and were not motivated by greed. Kahuanui told Triay he did not know before the meeting that Mills intended to name him in her will. Kahuanui also told Triay that Mills was generous to a fault, for example, if a delivery boy brought $20.00 worth of Chinese food Mills would give him a $100.00 bill and tell him to keep the change. Kahuanui expressed concern that Mills would be taken advantage of by others.

Some days later, Triay realized he had not spoken with Mills privately, outside the presence of the Kahuanuis, which he felt he should have done since she wrote a will and left everything to them. Triay testified he wanted to . . . meet with [Mills] alone outside [the Kahuanuis] presence to confirm that this is what she wanted and not something that they were inducing her to do. An appointment was scheduled for June 1, 2004.

On June 1, in the morning, Triay received a telephone call from Anthony Quilez of Alameda Countys Adult Protective Services. Quilez expressed concern that Mills was the victim of financial abuse, although he did not identify the person(s) suspected of committing the abuse. Quilez also expressed concern about Millss mental capacity and suggested Mills would be well served if her money were placed into a trust or with a reputable investment advisor.

On June 1, in the afternoon, Mills went to Triays office, where they met privately. In his contemporaneous notes, Triay described Mills as much calmer and more collected during this second visit. Triay questioned Mills at length about her family members to see if she could identify the natural objects of her bounty. Mills related that her brother had died years ago and that neither she nor her brother had children. She told Triay that her biological father, mother, and stepfather were also deceased. Mills did not know the whereabouts of any other family members. Mills was able to describe her assets as the home she inherited from her mother, valued at about $500,000 to $600,000, and approximately $30,000 in an account at a credit union. Mills informed Triay that she had worked as a waitress, but was applying for Social Security disability benefits.

Triay also discussed with Mills the phone call he received from Quilez that morning. Mills surmised that her husband had reported the Kahuanuis to Adult Protective Services resulting in an investigation. She told Triay that her husband was paranoid about the Kahuanuis and believed they were out to kill her and steal her money. According to Triay, Mills disagreed with her husbands assessment; she did not believe the Kahuanuis were taking advantage of her and she believed the Kahuanuis were looking out for her best interests and trying to assist her. Mills also told Triay that her husband had filed for a divorce.

During this meeting Mills asked Triay to change her will and leave everything to her husband. When asked why she wanted this change she stated that she still loved her husband, even though they were divorcing, and that he had taken care of her for eight years. Triay then prepared a new will which Mills signed. Mills did not request any changes to either power of attorney. According to Millss declaration, Triay did not ask her about the power of attorney for financial matters at the second meeting.^[3]

Based upon Triays observations and experience, he again determined that Mills had testamentary capacity during the June 1 meeting.

C. Police Investigation

On May 7, 2004, the day after Millss first visit to Triay, due to a confluence of events, the Alameda Police Department opened an investigation concerning whether Kahuanui was taking advantage of Mills, and whether Mills was a dependent adult due to a mental condition. On May 8, Millss husband called police to report that property stolen from Mills was being sold at a yard sale. Police located the yard sale and spoke with Kahuanui who produced the power of attorney giving him control of Millss financial affairs. He confirmed that most of the items at the yard sale belonged to Mills, that she was aware of the sale, and that all proceeds would be going back to Mills. Kahuanui also said he had pawned some of Millss property recently, and the money received had been placed in Millss bank account. The following day Mills told another police officer that Kahuanui had permission to sell her items at the yard sale, and she was allowing him to keep the proceeds as compensation for Kahuanui cleaning her house.^[4] The police nevertheless continued actively investigating the matter in May and June.

Based upon an interview with Mills, the Alameda police contacted Adult Protective Services to arrange for a mental evaluation. This took place on June 1, 2004. In a report dated June 8, 2004, the evaluator concluded that as a result of a chronic psychiatric illness (bipolar disorder) Mills was not capable of making informed financial decisions. Additional investigation by the police in May and June revealed the following: $7,800 in checks written by Mills to Kahuanui and two associates, $9,500 in cash withdrawals from an ATM which Mills says she gave to Kahuanui, and a claim that Kahuanui had stolen $80,000 in cash from Millss home.

Kahuanui was arrested in July and charged with five felony counts of theft from a dependent. Kahuanui pled no contest to one count (theft of furniture valued at $3,310.00), and the remaining charges (theft of money, jewelry, real estate, and power of attorney, and future interest in property) were dismissed.^[5]

II. Procedural History

On February 17, 2005, Mills filed a complaint against Kahuanui and Triay. Only the third cause of actionfor Legal Malpracticenamed Triay. In it, Mills alleged that Triay failed to exercise reasonable care and skill in representing her, and specifically, that Triay selected defendant Kahuanui as appropriate to be given power of attorney over [p]laintiff with inadequate investigation into Kahuanuis background. Mills alleged that her property was appropriated by defendant Kahuanui [a]s a proximate result of the Breach of Contract herein alleged.^[6]

Triay filed a motion for summary judgment, which was granted on several separate and independent grounds. Judgment was entered and this appeal followed.

III. Standard of Review

We review de novo the trial courts action granting the motion for summary judgment. After examining the facts before the trial judge on a summary judgment motion, an appellate court independently determines their effect as a matter of law. (Diep v. California Fair Plan Assn. (1993) 15 Cal.App.4th 1205, 1207.) In doing so, the appellate court applies the same legal standard as did the trial court. Code of Civil Procedure section 437c, subdivision (c), requires the trial court to grant summary judgment if no triable issue exists as to a material fact, and if the papers entitle the moving party to a judgment as a matter of law. . . . [] . . . [W]e construe the moving partys affidavits strictly, construe the opponents affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it. (Ibid.; accord, PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 590, disapproved on other grounds in Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1159, fn. 11.)

If a defendant moving for summary judgment shows that any single element of a given cause of action cannot be established, and the plaintiff cannot rebut this showing by establishing the existence of a triable issue of fact as to that element, summary judgment is appropriate as to that cause of action even if the plaintiff can show a triable issue as to other elements of the same cause of action. (Elcome v. Chin (2003) 110 Cal.App.4th 310, 322.)

IV. Discussion

Mills contends that summary judgment should not have been granted because (1) the notice of motion and motion was not properly served; (2) the moving papers did not contain an expert declaration on the issue of duty; (3) Triay failed to prepare and present to Mills a written fee agreement, in violation of Business and Professions Code section 6148; (4) Triay failed to inform Kahuanui of his duties to Mills, as required by Probate Code section 4128 (section 4128), and admitted mistakes in his representation of Mills; and (5) the police report submitted by Triay created issues of fact as to causation and damages. We reject as utterly without merit Millss arguments pertaining to service of the motion, the Business and Professions Code violation, and the Probate Code violation. We also conclude Triay was entitled to summary judgment because there is no triable issue of fact with respect to the element of causation. These conclusions render the remaining contentions moot.

A. Service of Motion

Millss only argument regarding improper service of the motion is this: [T]he Notice of Motion for Defendants Motion for Summary Judgment was served by mail on December 30, 2005. [Citation.] It had to be served by December 23, 2005 [because it was served by mail]. Defendants failure to completely abide by Code of Civil Procedure Section 437c notice provisions requires denial of the motion. Noticeably absent from Millss recitation is the undisputed fact that all other documents pertaining to the summary judgment motion were properly served, by hand delivery, on December 28, 2005. As Triays attorney explained, through inadvertence the notice of motion and motion was not included in the documents served on December 28, and was therefore sent by facsimile and U.S. mail to Millss attorney on December 29.^[7]

To conclude that this kind of hyper-technical error requires outright denial of the motion would elevate the concept of form over substance to its most absurd level. Worse, Mills miscites authority. She relies on Urshan v. Musicians Credit Union (2004) 120 Cal.App.4th 758, for the proposition that late service of a notice requires denial of the motion. Urshan does not even address the issue of service. Rather, it holds that the trial court does not have authority to shorten the minimum notice period for hearing a summary judgment motion without the parties consent. (Id. at p. 764.) We reject Millss feckless claim that service of the notice of motion one day late requires denial of the motion.

B. Absence of Written Fee Agreement

Mills argues that Triays failure to provide a written agreement for the provision of legal services is a violation of Business and Professions Code section 6148 and renders voidable the oral agreement between Mills and Triay. Mills further contends that by revoking this agreement she created a triable issue of fact as to whether [Triay] breached a duty and whether [Mills] was damaged by [Triays] actions.

Millss argument is murky, at best. We gather that Mills is claiming that Triays failure to provide a written fee agreement breached a professional duty owed to Mills and this breach caused Kahuanui to steal from her. If this is her contention it is utterly specious. Mills cites to no evidence and makes no coherent argument as to how the absence of a fee agreement could possibly have resulted in her victimization by a third party. While the failure to supply a written fee agreement entitled Mills to void her oral agreement with Triay (Bus. & Prof. Code,  6148, subd. (c)), it does not support her claim that Triay was negligent in preparing the power of attorney.

C. Failure to Comply with Section 4128

Section 4128 provides, in essence, that a printed durable power of attorney form used by individuals who do not have the advice of legal counsel must contain specific statements concerning the powers, duties and limitations of the attorney-in-fact. Mills argues that Triays undisputed failure to provide those warning statements to Kahuanui also precludes summary judgment. Mills nowhere explains, however, why section 4128 applies here, where legal counsel was involved. While Mills might have argued that the provisions of section 4128 should be considered when determining the applicable standard of care in preparing powers of attorney, she only hints at such an argument in her reply brief. Primarily, however, she makes the unadorned assertion that the code section itself precludes entry of summary judgment against Triay. Because the code section is plainly inapplicable to the facts of this case, we reject this argument.^[8]

D. No Triable Issue of Fact as to Causation

Causation is an essential element of a cause of action for professional negligence. (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130.) In a malpractice action, as in other negligence cases, the defendants liability,  is for all damages directly and proximately caused by his negligence.  [Citations.] If the allegedly negligent conduct does not cause damage, it generates no cause of action in tort. . . . [Citations.] (Ibid.) Causation requires proof that the defendants conduct was a  substantial factor  in bringing about the harm to the plaintiff. [Citations.] Tortious conduct is  not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent[]  . . . . [Citation.] Professional negligence need not be established as the sole cause of the clients loss, but the plaintiff must show by the evidence presented that a result was more likely than not caused by a wrongful act or omission. (Id. at p. 132.)

In his motion Triay presented a prima facie case demonstrating that his actions did not cause any of Millss damages. The evidence, as presented in the motion, showed that Mills herself gave Kahuanui access to her real and personal property and that the power of attorney did nothing to enhance that access. Triay also showed there was no evidence that Kahuanui used the power of attorney to take any of Millss property. In opposition, Mills made only one argument. She pointed to a police report prepared in connection with Millss husbands claim that property stolen from Mills was being sold at a yard sale. In that report, the officer stated, [i]n light of Kahuanuis power of attorney, [the officer] could find no reason to further investigate the property [at the yard sale] as stolen, per [Millss husbands] claim. On the strength of this entry in the police report, Mills argues that Triay caused her damage because the police concluded they were unable to stop Kahuanuis disposal of Millss assets.

We reject this argument. Mills has never claimed, either before or after this lawsuit was filed, that Kahuanui actually utilized the power of attorney to gain control over her property in order to sell it at the yard sale. On the contrary, she told the police she had authorized the yard sale and reiterated in her deposition that she asked Kahuanui to take the property and sell it. And, while the power of attorney Kahuanui presented to the police officer momentarily halted his inquiries, it most assuredly did nothing to stop the investigation, which, as we have described, moved inexorably forward until Kahuanui was arrested.

Nothing else in the record supports Millss argument that Kahuanui actually used the power of attorney to appropriate any of Millss property. It is undisputed that Mills met Kahuanui shortly after her mother died, when Mills was very depressed, and that he became her drug supplier. Tragically, Mills thereby came under the total sway of Kahuanui. At that time the drugs Kahuanui was supplying [to] me were the most important things in my life and I did not want to do anything that would jeopardize Mr. Kahuanuis giving them to me. According to the evaluators report, Mills invited Kahuanui and his family to live in her home, where they apparently had access to a large sum of cash as well as to Millss personal property.

Nor do the police reports contain any entries supporting Millss implicit claim that Kahuanui used the power of attorney to take either money or property from Mills. Rather, the record reflects checks written by Mills to Kahuanui and his associates, money withdrawn by Mills from her ATM and given to Kahuanui, and cash allegedly stolen from Millss home by Kahuanui. Although Mills stated in her declaration that Kahuanui would present the papers [power of attorney] . . . as his authority for selling my property she describes no occasion on which this occurred apart from the yard sale incident. Accordingly, whether or not Triay acted negligently or breached any duty to Mills in preparing the power of attorney for Kahuanui, Mills has presented no evidence that such alleged negligence was the proximate cause of any damage to Mills.

In light of our conclusion on the issue of causation, we need not address whether Triay satisfied his burden of disproving any other essential elements of Millss cause of action for professional negligence.

V. Disposition

________________________

RIVERA, J.

We concur:

___________________________

REARDON, Acting P. J.

___________________________

SEPULVEDA, J.

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^[1] According to Mills, the friend who gave Kahuanui Triays name was Kahuanuis criminal defense attorney.

^[2] Mills does not recall saying this to Triay, but admits it is possible that she did.

^[3] The following exchange, however, took place at her deposition: [Counsel]: [Y]ou recall that he asked you if you wanted to make any changes to the documents? [] [Mills]: Yes. [] [Counsel]: And what did you say? [] [Mills]: Yes. [] [Counsel]: And what changes did you tell him you wanted to make? [] [Mills]: I wanted to leave my house to my husband.

^[4]At her deposition Mills reiterated that she had asked Kahuanui to take out the stuff and sell it in a garage sale. When asked whether she ever told the police that she had agreed to let Kahuanui keep the proceeds from the sale for helping clean [her] house, Mills responded, I cant remember.

^[5]Apparently, Mills wanted her mothers furniture and belongings removed from the house because she didnt like them. We surmise that it was the removal and sale of this furniture by Kahuanui that was the basis for the theft charge to which he pled no contest. Mills testified all the furniture, including antiques, were recovered and returned to her by the police.

^[6]We assume this was a typographical error and that Mills intended to allege that her losses were the result of Triays professional negligence.

^[7] Two proofs of service, by mail and facsimile transmission, of the notice of motion are in the record, one dated December 29, and a second dated December 30. The discrepancy is immaterial.

^[8]To the extent we might liberally construe such an argument to address the issues of duty and breach of duty, it is unnecessary to do so here because we conclude below there is no triable issue of fact on the element of causation.