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Insurance Company of the West v. Haight Brown & Bonesteel LLP11/22/2002
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
This case involves a claim for legal malpractice in the handling of an appeal. A jury awarded Gregory Deptuch approximately $1.5 million in his personal injury suit against Rodway Chevrolet (Rodway), an insured of plaintiff Insurance Company of the West. Rodway appealed, but this court granted Deptuch's motion and dismissed the appeal as untimely filed.
Plaintiff then filed a complaint, alleging legal malpractice, breach of contract, and breach of fiduciary duty against the two law firms involved in the underlying trial and appeal, defendants Haight Brown & Bonesteel LLP (Haight) and Schuering Zimmerman & Scully, LLP (Schuering). The trial court granted defendants' motions for summary judgment and/or summary adjudication, concluding that, even had defendants filed a timely notice of appeal from the underlying lawsuit, that appeal would not have been successful. The court also rejected plaintiff's claim that a timely notice of appeal would have enabled the case to settle for a lesser amount.
Plaintiff appeals from the judgments entered in favor of defendants. We affirm.
Standard of Review
A motion for summary judgment "shall be granted if 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. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences of evidence, which raise a triable issue as to any material fact." (Code Civ. Proc., § 437c, subd. (c); further undesignated statutory references are to the Code of Civil Procedure.)
Under the summary judgment statute, " defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, 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 that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. . . ." (§ 437c, subd. (o)(2).)
"Because the trial court's determination is one of law based upon the papers submitted, the appellate court must make its own independent determination regarding the construction and effect of the supporting and opposing papers. We apply the same three-step analysis required of the trial court. We begin by identifying the issues framed by the pleadings since it is these allegations to which the motion must respond. We then determine whether the moving party's showing has established facts which justify a judgment in movant's favor. When a summary judgment motion prima facie justifies a judgment, the final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue." (Hernandez v. Modesto Portuguese Pentecost Assn. (1995) 40 Cal.App.4th 1274, 1279; see generally Aguilar v. Atlantic Richfield Co. (200
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