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Linden v. Siamas1/31/2002
award but could not appropriately seek to "correct" it.
Plaintiff instead retained new counsel to petition the court to add attorneys' fees to the final award. The trial court denied the petition and confirmed the award. In June 1997 plaintiff's new counsel negotiated a settlement requiring, inter alia, that PAI make monthly payments over the next two and one-half years. PAI filed for bankruptcy in June 1999, still owing plaintiff over $600,000.
Plaintiff sued defendants for malpractice and related claims in September 1997. As later amended, the complaint alleged malpractice, breach of fiduciary duty, breach of contract and fraud. The court granted defendants' motion for summary judgment as to all claims, ruling that plaintiff "cannot prove essential elements of his causes of action for legal malpractice, breach of fiduciary duties, breach of contract, fraud and deceit, and claim for punitive damages . . . ." This appeal timely followed the ensuing judgment.
Discussion
Plaintiff challenges only the rulings on his claims for professional malpractice and breach of fiduciary duty. With respect to the former, he asserts the court erred in ruling he failed to show the existence of triable issues as to whether defendants negligently failed to (1) structure his claims so as to trigger insurance coverage that would protect him from PAI's eventual bankruptcy ; and (2) obtain an attorneys' fee award from the arbitrators. He further asserts he presented triable issues as to whether defendants breached their fiduciary duties by (1) concurrently representing Davis; and (2) improperly terminating their representation after the arbitration hearings.
I. Legal Standards
" `To secure summary judgment, a moving defendant may prove an affirmative defense, disprove at least one essential element of the plaintiff's cause of action [citations] or show that an element of the cause of action cannot be established [citations]. [Citation.] The defendant "must show that under no possible hypothesis within the reasonable purview of the allegations of the complaint is there a material question of fact which requires examination by trial." [Citation.] [ ] `The moving defendant bears the burden of proving the absence of any triable issue of material fact, even though the burden of proof as to a particular issue may be on the plaintiff at trial. [Citation.] . . . Once the moving party has met its burden, the opposing party bears the burden of presenting evidence that there is any triable issue of fact as to any essential element of a cause of action.' [Citation.]" (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1485.)
"In reviewing the propriety of a summary judgment, the appellate court must resolve all doubts in favor of the party opposing the judgment. [Citation.] The reviewing court conducts a de novo examination to see whether there are any genuine issues of material fact or whether the moving party is entitled to summary judgment as a matter of law. [Citation.]" (M.B. v. City of San Diego (1991) 233 Cal.App.3d 699, 703-704.) "We accept as true the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them. [Citation.] However, to defeat the motion for summary judgment, the plaintiff must show ` "specific facts," ' and cannot rely upon the allegations of the pleadings. [Citations.]" (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 805.) "While ` ummary judgment is a drastic procedure, should be used with caution [citation] and should be granted only if there is no issue of triable fact' [citation], it is also true ` ustice requires that a def
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