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Linden v. Siamas1/31/2002
endant be as much entitled to be rid of an unmeritorious lawsuit as a plaintiff is entitled to maintain a good one.' [Citation.] `A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail. [Citation.]' [Citation.]" (M.B. v. City of San Diego, supra, at p. 704.)
II. Negligence
The trial court ruled that defendants' evidence established they had not breached any duty of care or committed any negligence; that their conduct did not proximately cause plaintiff's damages; and that, as a matter of law, plaintiff's allegations were insufficient in that they constituted "second guessing" of litigation tactics. The burden thus having shifted to plaintiff, the court sustained defendants' objections to substantial portions of plaintiff's opposing evidence and ruled that plaintiff had failed to introduce competent evidence sufficient to raise any triable issues of material fact.
Plaintiff does not seem to dispute the trial court's finding that defendants met their initial burden of proof, arguing rather that his responsive evidence was sufficient to raise triable issues of fact as to both negligence and breach of fiduciary duty. We disagree. Turning first to his assertion that defendants should have structured his arbitration claims to trigger insurance coverage, we need only observe that plaintiff has not shown the existence of any PAI policy applicable to the purportedly covered claims. Plaintiff tries to rely on excerpts from his declaration to establish that he was a named insured on relevant PAI policies and that he sent defendants a certificate of insurance showing PAI had a Hartford Insurance Co. policy with $2 million in general liability coverage. He also cites to his insurance expert's declaration as evidence that PAI's insurance polices would have covered the trade secret misappropriation, trade disparagement and defamation claims he asserts defendants should have raised. All of this "evidence," however, was ruled inadmissible in the trial court, and plaintiff has waived any challenge to those rulings by failing to raise them on appeal. "Although our review of a summary judgment is de novo, it is limited to issues which have been adequately raised and supported in plaintiffs' brief. [Citations.] Issues not raised in an appellant's brief are deemed waived or abandoned. [Citation.]" (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)
Nor has plaintiff raised a triable issue regarding defendants' allegedly negligent failure to obtain attorneys' fees. While he concedes that defendants did seek fees in the arbitration, he asserts they negligently failed to cite two particular cases that, he claims, would have compelled the arbitrators to resolve the fee issue in his favor. Not so. Defendants having met their initial burden, plaintiff presented no competent evidence that they had a duty to cite these specific cases, that their decision not to do so fell below the applicable standard of care, or that the cited cases would have affected the outcome. His lay opinion that defendants should have cited these cases is patently incompetent evidence (Evid. Code, ยงยง 800, 803), and was properly excluded as such in the trial court.
Plaintiff's reliance on Goebel v. Lauderdale (1989) 214 Cal.App.3d 1502, 1508-1509 (Goebel) and Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1094-1095 (Stanley) is misplaced. In both those cases the alleged attorney negligence involved the attorney's "total failure to perform even the most perfunctory research;" in Goebel, moreover, the attorney advised the client to break the law. Under those circumstances, the Goebel and Stanley courts applie
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