Rivkin v. Kennerson & Grant
Filed 10/7/09 Rivkin v. Kennerson & Grant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
JONATHAN RIVKIN, Plaintiff and Appellant, v. KENNERSON & GRANT LLP et al., Defendants and Respondents. | D053743 (Super. Ct. No. 37-2007-0007177- CU-PN-CTL) |
APPEAL from a judgment of the Superior Court of San Diego County, Yuri Hofmann, Judge. Affirmed.
INTRODUCTION
This case requires us to determine whether the trial court properly granted summary judgment to defendant attorneys in a legal malpractice action after finding the plaintiff could not establish that, but for the attorneys' alleged negligence, the underlying litigation would not have been dismissed under the primary assumption of the risk doctrine. We conclude the trial court properly granted summary judgment and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
The facts of the underlying litigation are detailed in our prior decision. (Rivkin v. City of Carlsbad (Sept. 18, 2006, D046319) [nonpub. opn.].) Briefly, Dr. Jonathan Rivkin participated in a pitching exhibit at a youth organization's baseball fair at a park in Carlsbad. A baseball school set up and operated the exhibit. The baseball school located the exhibit on a grassy area in front of a fence that ran alongside the third baseline of a baseball field. The area in front of the exhibit was relatively flat for approximately 15 feet and then began sloping upward toward a sidewalk and parking lot.
Participants pitched a soft, "squishy" baseball toward the exhibit. A baseball school member stood behind the exhibit and held a radar gun to measure the speed of the pitch. The exhibit had no line indicating where participants should stand when throwing the baseball.
Dr. Rivkin's daughter participated in the exhibit and pitched three times from the sidewalk. Dr. Rivkin then decided to participate in the exhibit and chose to pitch from the sloped area below the sidewalk. Although the sloped area is steeper than a pitcher's mound, is covered in grass, and was wet from recent rain, Dr. Rivkin chose to pitch from the sloped area because he wanted to pitch from a distance that approximated the distance used by the pitchers in his daughter's softball league.
Dr. Rivkin's first pitch was an uneventful, casual "warm-up toss." However, he decided to throw his second pitch as hard as he could while attempting a pitcher's wind-up using his left leg. As he brought his left leg down, he slipped on the slope and severely injured his left knee.
Dr. Rivkin sued the youth organization, the baseball school, and the City of Carlsbad. The trial court granted summary judgment for the defendants, finding the primary assumption of the risk doctrine applied to participation in the pitching exhibit and, therefore, the defendants did not owe Dr. Rivkin a duty of care.
During oral argument on Dr. Rivkin's subsequent motion for new trial, Dr. Rivkin's counsel requested an opportunity to provide expert declarations to show the primary assumption of the risk doctrine did not apply because setting up the exhibit on wet grass rather than dry grass or a pitcher's mound increased the risk of injury inherent in participating in the exhibit. The trial court denied the request finding, among other reasons, this was not the proper subject of expert testimony.
Rivkin appealed the trial court's judgment and we affirmed. We concluded "pitching a ball to a radar gun for speed measurement is a sport falling within the primary assumption of risk doctrine, and a resultant knee injury was within the inherent risks of the sport." We also concluded "the defendants did not breach their duty not to increase the inherent risks of the sport." (Rivkin v. City of Carlsbad, supra, D046319.)
Dr. Rivkin then sued the law firm and attorneys (collectively, attorneys) that represented him in the underlying litigation for legal malpractice. He claimed the attorneys' representation of him fell below the standard of care because they failed to present expert evidence showing the underlying defendants increased the risks inherent in his participation in the pitching exhibit by selecting a site for the exhibit that had no safe place for participants to stand.
The attorneys moved for summary judgment, arguing Dr. Rivkin could not establish their alleged negligence affected the outcome of the underlying litigation. The trial court granted the motion, finding the attorneys' failure to submit expert evidence to establish the physical conditions of the pitching exhibit was irrelevant to the outcome of underlying litigation because the trial court and this court both determined Dr. Rivkin's injuries were caused by his own choices.
Dr. Rivkin appeals, arguing that the expert evidence the attorneys should have obtained for the underlying litigation, which was obtained and presented to the trial court in this action, raises a triable issue of fact as to whether the attorneys' negligence caused Dr. Rivkin to suffer summary judgment in the underlying litigation. We affirm the judgment.
II
STANDARD OF REVIEW
A trial court must grant a motion for summary judgment if the moving party establishes there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., 437c, subd. (c).) On appeal from an order granting summary judgment we independently determine whether triable issues of material fact exist. In making this determination, we view the evidence in a light favorable to the plaintiffs. We liberally construe the plaintiffs' evidentiary submission, strictly scrutinize the defendants' evidentiary submission, and resolve any evidentiary doubts or ambiguities in the plaintiffs' favor. (Saezler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769; Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 565.)
III
DISCUSSION
The elements of a legal malpractice claim arising from a civil proceeding are "(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. [Citations.]" (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199; accord, Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1531.) The causation element requires a plaintiff to show "but for the alleged negligence of the defendant attorney, the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred." (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241, italics omitted; accord Blanks v. Shaw (2009) 171 Cal.App.4th 336, 357.) Causation is ordinarily a question of fact, but it can be decided as a question of law if, under undisputed facts, there is no reasonable difference of opinion. (Ambriz v. Kelegian, supra, at p. 1531-1532.)
To show there is a triable issue of material fact as to the causation element, Dr. Rivkin obtained a report and declaration from Dr. Harvey Cohen, a human factors/ergonomics and safety scientist and consultant. The attorneys had designated similar experts in the underlying litigation, but they did not obtain any opinions from the experts to support Dr. Rivkin's opposition to the underlying defendants' summary judgment motions.
Dr. Cohen's report states the distance from where Dr. Rivkin was standing when he injured himself to the pitching exhibit was approximately 33 feet, while the pitching distance for little league softball is 35 feet for the minor division and 40 feet for the major and big league divisions. In addition, the report states the slope of the area where Dr. Rivkin was standing when he injured himself was approximately 19 percent, while the slope of a typical little league pitcher's mound is 8.3 percent. The slope of the flatter area below and closer to the fence was between 1.65-1.85 percent. Dr. Cohen's report also indicates the flatter area was wet and muddy when he physically inspected it and when the slope measurements were taken. The report assumes the flatter area was wet and muddy on the day of Dr. Rivkin's injury.
Based on these facts, Dr. Cohen opined that the excessive steepness of the slope where Dr. Rivkin was standing, coupled with the wet, grassy conditions, caused Dr. Rivkin to slip and fall. Dr. Cohen further opined that the underlying defendants should have known allowing a participant to pitch from the slope created a risk the participant would suffer a slip and fall injury. Moreover, Dr. Cohen opined it was reasonable for Dr. Rivkin to pitch from the slope because there were no suitable alternatives. The flatter area below the slope was not completely flat and it was too close to the fence for a simulated pitching task. Finally, Dr. Cohen opined Dr. Rivkin acted reasonably in selecting a location he thought simulated the pitching distance of his daughter's softball league because a reasonably prudent person would not have expected to lose traction and slip forward on the slope.
Dr. Rivkin contends Dr. Cohen's opinions, had they been presented in the underlying litigation, would have raised triable issue of material facts as to whether the underlying defendants increased the risk of harm inherent in his participation in the pitching exhibit, which would have precluded the trial court from granting summary judgment. Accordingly, he contends Dr. Cohen's opinions raise a triable issue of material fact in this action as to whether the attorneys' negligence caused him to suffer summary judgment in the underlying litigation. These contentions lack merit.
Where the application of the primary assumption of risk doctrine is at issue, the role of expert testimony is limited because it is for the court to decide whether an activity is covered by the doctrine, the inherent risks of the activity, and whether the defendant's actions increased the inherent risks. (Towns v. Davidson (2007) 147 Cal.App.4th 461, 472.) "A court in its discretion could receive expert factual opinion to inform its decision on these issues, particularly on the nature of an unknown or esoteric activity, but in no event may it receive expert evidence on the ultimate legal issues of inherent risk and duty. [Citations.]" (Id. at p. 472.)
During oral argument on Dr. Rivkin's motion for new trial, the trial court in the underlying litigation indicated it did not need expert evidence to reach its decision. In addition, the factual opinions contained in Dr. Cohen's declaration merely confirmed matters that were apparent from photographic evidence and not disputed by the parties: the slope was steeper than a pitcher's mound and there was a flatter area below the slope. Although a survey revealed the area below the slope was not completely flat, Dr. Cohen did not equate its topography to a specific danger risk. Rather, he concluded, without any explanation or foundation, that the area was muddy and too close to the fence for Dr. Rivkin to perform a simulated pitching task. Expert opinions that lack foundation or are speculative are not sufficient to raise a triable issue of material fact. (See, e.g., Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1487; Thai v. Stang (1989) 214 Cal.App.3d 1264, 1276.)
Even if the flatter area below the slope was not a suitable or safe alternative, Dr. Cohen's report does not consider the other obvious alternative available to Dr. Rivkin: pitching from the sidewalk above the slope. While this location was farther than the pitching distance Dr. Rivkin wanted to approximate, there is no evidence this location was infeasible or unsafe. In fact, Dr. Rivkin's daughter pitched from this location without incident. Therefore, Dr. Cohen's declaration and report do not show, as Dr. Rivkin contends, that the underlying defendants increased the risk of harm to Dr. Rivkin by setting up the pitching exhibit in an area where there were no safe alternatives from which to pitch.
Finally, as the trial court correctly determined, Dr. Cohen's remaining opinions are irrelevant. The application of the primary assumption for the risk doctrine does not depend on the reasonableness or unreasonableness of Dr. Rivkin's conduct. (Knight v. Jewett (1992) 3 Cal.4th 296, 309.) The cause and foreseeability of Dr. Rivkin's injury are also not factors in determining the doctrine's application. (Id. at p. 313; Shin v. Ahn (2007) 42 Cal.4th 482, 494, 498.) Accordingly, Dr. Cohen's opinions do not raise a triable issue of material fact as to whether the attorneys' negligence caused Rivkin to suffer summary judgment in the underlying litigation.
DISPOSITION
The judgment is affirmed. Respondents are awarded costs on appeal.
McCONNELL, P. J.
WE CONCUR:
BENKE, J.
HUFFMAN, J.
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