 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Ayala v. Penney & Associates12/15/2003
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
In this legal malpractice action, plaintiff Martha Ayala appeals following the grant of summary judgment to defendants Penney & Associates, Larry K. Eslinger, and Frederick Penney. We shall affirm.
STANDARD OF REVIEW
"A motion for summary judgment must be granted if all of the papers submitted show `there is no triable issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law. In determining whether the papers show . . . there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, . . . and all inferences reasonably deducible from the evidence . . . .' ([Code Civ. Proc., ]ยง 437c, subd. (c).) A defendant has met its burden of showing a cause of action has no merit if it `has been shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show . . . a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff . . . may not rely upon the mere allegations or denials of its pleading to show . . . a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists . . . .' (Id., subd. (o)(2); Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 466 & fn. 4.) The trial court's summary judgment rulings are subject to de novo review. (580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 14.)" (Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 69.)
FACTS
The complaint
Plaintiff's first amended complaint pleaded counts, styled "Cause of Action," for damages for legal malpractice, fraud and deceit, and breach of fiduciary duty.
Plaintiff alleged: Defendant Penney & Associates, a law firm, and defendants Eslinger and Penney, attorneys practicing with the firm, agreed to represent plaintiff in a personal injury action stemming from a vehicle collision negligently caused by Rosa Maria Silva in Roseville, California, on or about November 25, 1998. Defendants filed the complaint on November 24, 1999, in Placer County, California.
Defendants negligently failed to exercise reasonable care and skill in performing legal services for plaintiff in that, "among other things," they failed to conduct proper discovery, failed to name the owner of Silva's vehicle as a defendant, and improperly settled the action for $15,000 and dismissed it without plaintiff's permission. Had defendants exercised proper care and skill, plaintiff would have recovered damages in excess of $15,000.
Defendants acted fraudulently and deceitfully by intentionally concealing information, settling plaintiff's claims without authorization, and dismissing the action without plaintiff's permission, all with the intent to force plaintiff into settling the action. Had plaintiff known the true facts, she would have taken steps to advise Silva that defendants did not have authority to settle the case for $15,000, and to prevent defendants from dismissing the case.
In doing these acts, defendants breached their fiduciary duties to plaintiff arising out of the attorney-clien
Page 1 2 3 4 5 6 7 8 9 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|