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Trujillo v. Wilcoxen2/20/2002
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiff appeals from a judgment after a demurrer to her complaint against the law firm of Wilcoxen, Montgomery & Harbison and two of its partners (the Wilcoxen firm) was sustained without leave to amend.
Plaintiff seeks damages against her former attorneys based on a petition which the firm filed against her in the probate court in an attempt to remove her as conservator of her husband's estate. The court found plaintiff's complaint was barred by the judicial proceedings (litigation) privilege set forth in Civil Code section 47, subdivision (b) (section 47(b)). We affirm.
BACKGROUND
Because the sufficiency of a demurrer presents a question of law whether the complaint, liberally construed, states facts entitling the plaintiff to any relief, we assume the truth of all material properly pleaded facts, without according any credit to contentions or legal conclusions. (Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 768-769.) Applying this rule, we summarize the facts of the first amended complaint.
On September 28, 1994, plaintiff's husband Nathan Trujillo was severely injured when he fell down an elevator shaft at his job site.
Unable to speak or care for himself, Nathan was committed to a long-term health care facility. On April 18, 1995, plaintiff was appointed by the superior court as conservator of Nathan's person and estate.
In order to prosecute the personal injury claims of Nathan, plaintiff retained the law offices of Jack H. Robbins. Robbins filed a complaint for damages on plaintiff's behalf in August 1995. In May of 1996, Robbins associated the Wilcoxen firm as associate counsel. An association of counsel was filed in the personal injury lawsuit, making the Wilcoxen firm plaintiff's counsel of record. During its attorney- client relationship with plaintiff, the Wilcoxen firm obtained personal and confidential information about plaintiff and Nathan.
On April 8, 1997, plaintiff wrote a letter to the Wilcoxen firm stating that she had lost trust in the firm and terminating their services "effective immediately." Three days later, the Wilcoxen firm filed a petition in the probate court to remove plaintiff as conservator of Nathan's estate. In the course of pursuing her removal, the Wilcoxen firm disclosed to the court "privileged attorney-client communications" as well as work-product memoranda. In filing the petition, the Wilcoxen firm was motivated solely by self-interest in protecting their right to earn a fee on the underlying personal injury suit.
Plaintiff was removed as conservator of Nathan's estate by the superior court but this court, in a written decision filed November 14, 1997 (Trujillo v. Superior Court (C026542) [nonpub. opn.]), issued a writ of mandate directing the court to vacate its removal order. The removal proceeding cost plaintiff in excess of $25,000 in attorney fees and resulted in emotional distress to her. In doing the acts described above, the Wilcoxen firm acted with malice.
Procedural History
The complaint posits multiple theories of recovery based on defendants' conduct in the removal action, including professional negligence, breach of fiduciary duty, breach of contract, invasion of privacy, and malicious prosecution.
After giving plaintiff one chance to amend her pleadin
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