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Aviel v. Sorgen2/22/2002
esearch, analyzed the possible bases for review, and exercised his judgment in concluding that there were insufficient non-frivolous grounds to justify proceeding further. An attorney who conducts adequate research, and makes an informed decision "to refrain from pressing a debatable point" does not violate the standard of care. (Smith v. Lewis, supra, 13 Cal.3d 349, 358-359.) Therefore, in order to create an issue of fact as to whether this decision violated the standard of care, Aviel would have had to present the declaration of an expert, explaining why Sorgen's research was inadequate, or why his decision fell outside the reasonable range of informed judgment. Aviel did not do so, and, although he complains about the fact that he was not informed of the result of Sorgen's research until it was too late to find someone else to do it on his behalf, in the absence of some expert evidence that viable grounds for review did exist, there is no triable issue of fact as to the element of a violation of the standard of care, or that the omission caused Aviel any damage.
We conclude that Aviel failed to meet his burden to create a triable issue of fact with respect to an essential element of his case, i.e., that Sorgen's representation fell below the standard of care. The court therefore did not err in granting summary judgment in Sorgen's favor.
CONCLUSION
The judgment is affirmed.
We concur:
Marchiano, P.J.
Swager, J.
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