Levin v. Ligon

• Citation: 45 Cal.Rptr.3d 560,140 Cal.App.4th 1456
• Decision Date: 30 June 2006
• Docket Number: No. A109477.,A109477.
• Court: California Court of Appeals
• Parties: Daniel Peter LEVIN, Plaintiff and Appellant, v. Janie Lee LIGON et al., Defendants and Respondents.

45 Cal.Rptr.3d 560

140 Cal.App.4th 1456

Daniel Peter LEVIN, Plaintiff and Appellant, v. Janie Lee LIGON et al., Defendants and Respondents.

No. A109477.

Court of Appeal, First District, Division 2.

June 30, 2006.

Anne E. Thorkelson, Law Offices of Anne E. Thorkelson, Attorney for Plaintiff and Appellant Daniel P. Levin.

Timothy J. Halloran, Peter J. Linn, Christian J. Martinez, Christine Huntoon, San Francisco, Murphy, Pearson, Bradley & Feeney, Attorneys for Defendant and Respondent Janie Lee Ligon.

Michael Hoffman, Los Angeles, Law Offices of Littler Mendelson, Attorneys for Defendants and Respondents Levi Strauss & Co., et al.

LAMBDEN, J.

Daniel Peter Levin sued his former wife, Janie Lee Ligon, and Levi Strauss & Co. for civil partition of financial assets held in Ligon's name, which included five Levi Strauss & Co. plans (Levi Strauss plans).¹ Levin appealed from the judgment after the trial court granted summary judgment in favor of Ligon and also granted the motion for judgment on the pleadings by Levi Strauss & Co. and the Levi Strauss plans (collectively, Levi Strauss).

In his partition action against Ligon, Levin asserted that their marital dissolution in England did not resolve his community property interest in certain pension and savings plans and accounts held in Ligon's name. The trial court found that Levin's prior legal malpractice action in England, which he settled after asserting that he had lost his right to any interest in the financial assets held by Ligon and accumulated during their marriage, estopped him from claiming a community property interest in these same assets. In making this determination, the trial court applied the test for judicial estoppel set forth in Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 70 Cal.Rptr.2d 96 (Jackson) and considered evidence that included various documents from Levin's legal malpractice lawsuit in England. On appeal, Levin challenges the court's consideration of these documents and its application of the Jackson test. We reject Levin's contentions and uphold the lower court's ruling.

Levin also appeals from that portion of the judgment that granted Levi Strauss's motion for judgment on the pleadings. However, since Levin's opening brief in this court is devoid of any argument or issue relevant to Levi Strauss, we conclude he has waived raising on appeal any argument against Levi Strauss.

BACKGROUND

Levin and Ligon married in California in 1971. While in California, they divorced in 1978 and remarried on December 31, 1981. The couple moved to England in 1994. Ligon held a senior position with Levi Strauss & Co. in London. Levin and Ligon separated in April 1995 while still residing in England; an English court dissolved their marriage on December 20, 1995.

In February 1996, Levin hired an English law firm, Aaronson & Co. (Aaronson), to represent his interests in recovering his share of the couple's real and personal property. On March 11, 1996, Levin married an English woman named Allison Beatt.

Both Levin and Ligon filed an application in England for adjudication of certain property rights. In addition to an interest in certain real property owned by the couple, Levin sought a share of Ligon's financial assets, including the Levi Strauss plans. These personal assets are referred to as ancillary relief in English law. Levin, however, learned that under the Matrimonial Causes Act 1973, section 28(3) his marriage to Beatt barred his claim for ancillary relief against Ligon.

Section 28(3) of the Matrimonial Causes Act 1973 provides that, "[i]f after the grant of a decree dissolving . . . a marriage either party to that marriage remarries, that party shall not be entitled to apply, by reference to the grant of that decree, for a financial provision order in his or her favour, or for a property adjustment order, against the other party to that marriage."

Levin filed an amended summons in which he withdrew his claim, which, "as finally amended, entitled him to make a claim only against [Ligon's] real property assets, namely . . . two homes . . . ." Pursuant to section 17 of the Married Women's Property Act 1882 (as amended) Levin made a claim to the real property he held jointly with Ligon. In 1997, pursuant to a marital dissolution and property settlement agreement between Levin and Ligon, the English High Court of Justice adjudicated the issue of Levin's claims against some of Ligon's property, as well as a claim Ligon had asserted against Levin's assets. The English High Court ordered Ligon to pay $320,000 to Levin, or one-half the equity in the real property Levin and Ligon jointly owned in California.

Subsequently, Levin initiated a legal malpractice action against Aaronson, alleging that his solicitor failed to advise him that his marriage to Beatt would bar him from applying for ancillary relief. In support of his claim against Aaronson, Levin submitted a declaration, which stated the following: "I have never professed to be knowledgeable about English family law. However, I had consistently been advised that, bearing in mind the contributions I had made to the marriage, the sacrifices I had made to support Ms. Ligon's career and the sums I had expended to allow her to accumulate her significant capital assets, I would be entitled to both a capital lump sum and periodical payments, alternatively a lump sum in lieu. It is solely through the negligence of the Defendant firm that I lost that entitlement. Accordingly, I ask this Honorable Court to Order that I be compensated by the Defendant for the loss[,] which it had caused me."

In 1998, Levin settled his malpractice action against Aaronson for approximately $331,813. According to the Queen's Bench Division of the High Court of Justice in England, this sum represented: "`The difference between the amount [Levin] would have received had he been able to make an ancillary relief application under the Matrimonial Causes Act 1973 (as amended), and the sum of U.S. $320,000 being the amount received in his subsequent application under section 17 of the Married Women's Property Act 1882 (as amended)[,]'" but for the negligence of Aaronson.

Both Ligon and Levin separately moved back to California and, on October 5, 1999, Levin filed a complaint against Ligon and Levi Strauss & Co. for partition of personal property held in Ligon's name and for declaratory relief. Levin claimed a community property or one-half interest in assets that included pension and retirement benefits, a deferred compensation plan, stock options, life insurance, investments in various non-employment related stocks, and various cash accumulations.

Ligon demurred to Levin's complaint, and the trial court sustained the demurrer without leave to amend on January 25, 2000. Levin appealed; we reversed on the basis that the trial court's judicial notice of documents from the English lawsuit was improper in a proceeding involving a demurrer and that neither res judicata nor collateral estoppel applied. (Levin v. Ligon (Oct. 19, 2001, A091316) [nonpub. opn.].)

In the trial court, in October 2003, Levin requested to join the Levi Strauss plans as defendants. The trial court permitted the joinder on December 8, 2003.

On April 5, 2004, Ligon moved for summary judgment on Levin's complaint. In support of the motion, Ligon submitted the following documents presented in Levin's legal malpractice action in The High Court of Justice, Queen's Bench Division, in England: The writ of summons issued December 9, 1997, accompanied by a statement of claim; an affidavit of Levin dated July 30, 1996; a skeleton argument for damages (counsel's argument for damages); Levin's statement dated December 1, 1999; the consent order dated April 14, 1999; and the "Voluntary Further and Better Particulars of the Statement of Claim" (counsel's argument, supplementing the skeleton argument). Levin objected to the trial court's considering any of these documents on the grounds that they were inadmissible records of a foreign court, inadmissible hearsay, and irrelevant. Levin also objected to some of the documents on the basis that they represented incompetent attorney argument.

On October 20, 2004, the trial court entered summary judgment in favor of Ligon and against Levin, ruling that Levin was barred from recovering any of the property at issue in his civil partition action. The court overruled the hearsay objections to the exhibits as the court did not consider them for the truth of the matter asserted, but to demonstrate that Levin took a contrary position in another tribunal. The court found that the position Levin took in the English solicitor malpractice action was: "that his remarriage to Alison Beatt, during the pendency of the property distribution phase of his divorce from Ligon . . ., precluded him from filing an application for ancillary relief against Ligon; and . . . that he permanently lost entitlement to any of Ligon's personal property assets as a result of his English solicitor's failure to advise him, prior to [Levin's] remarriage, that such remarriage would preclude him from claiming entitlement to Ligon's personal property assets. . . . [Levin's] position in this civil partition action in the Superior Court . . . is that he is now entitled to seek partition of those very assets to which he was previously, permanently barred."

The trial court further explained that there is no issue of material fact in dispute that Levin took "(1) two positions; (2) in two separate judicial proceedings; (3) that are totally inconsistent; and (4) were not the product of ignorance, fraud or mistake." The court concluded that Levin "was successful in the prior proceeding against his English solicitors because, at least in part, his recovery in that action necessarily included damages stemming from his lost claim to Ligon's personal property assets." However, the court noted that this latter fact was immaterial, and the dispositive...