Osornio v. Weingarten, No. H027258.

CourtCalifornia Court of Appeals
Writing for the CourtWalsh
Citation124 Cal.App.4th 304,21 Cal.Rptr.3d 246
PartiesSimona OSORNIO, Plaintiff and Appellant, v. Lawrence WEINGARTEN, as Personal Representative, etc., Defendant and Respondent.
Docket NumberNo. H027258.
Decision Date22 November 2004
21 Cal.Rptr.3d 246
124 Cal.App.4th 304
Simona OSORNIO, Plaintiff and Appellant,
v.
Lawrence WEINGARTEN, as Personal Representative, etc., Defendant and Respondent.
No. H027258.
Court of Appeal, Sixth District.
November 22, 2004.
As Modified on Denial of Rehearing December 16, 2004.

[21 Cal.Rptr.3d 248]

David A. Fulton, Cartwright, Fulton & Adams, Santa Cruz, for Plaintiff and Appellant.

Louis H. Castoria, Debra S. Blum, Wilson, Elser, Moskowitz, Edelman & Dicker, San Francisco, for Defendant and Respondent.

WALSH, J.*


124 Cal.App.4th 312

In Lucas v. Hamm (1961) 56 Cal.2d 583, 15 Cal.Rptr. 821, 364 P.2d 685 (Lucas), our Supreme Court rejected the traditional rule that an attorney owed no duty to nonclients. The court held that beneficiaries could sue the attorney whose negligent preparation of a will caused them to lose their testamentary rights, where the attorney's engagement was intended to benefit the nonclient, and the imposition of liability would not place an undue burden upon the legal profession. (Id. at p. 591, 15 Cal.Rptr. 821, 364 P.2d 685.)

Our case is one of first impression involving a potential extension of Lucas. Simona Osornio, a nonclient, was the named executor and sole beneficiary under a will. Because she was care custodian to the testator, a dependent adult, Osornio was a presumptively disqualified donee under Probate Code section 21350, subdivision (a)(6).1 Accurately anticipating that a probate court would decide that she could not overcome that presumption by clear and convincing proof, Osornio claimed that the bequest to her failed because of the negligence of Saul Weingarten, the attorney who drafted the will on behalf of the testator.

Though Osornio's allegations are less than clear, her theory of negligence is apparently that Weingarten owed her a duty of care as the testator's intended beneficiary, and that, at the time the will was drawn, Weingarten: (1) failed to advise the testator that her intended beneficiary, Osornio, would be presumptively disqualified unless the testator obtained a certificate of independent review from another attorney, under section 21351, subdivision (b) (hereafter section 21351(b)); and (2) failed to take appropriate measures to

124 Cal.App.4th 313

ensure that the testator's wishes were carried out by referring her to counsel to obtain such a certificate. The trial court sustained Weingarten's demurrer to the complaint without leave to amend, and Osornio appeals.

We conclude that the complaint, as drafted, did not state a cause of action. We find further, however, that nonclient Osornio could have readily amended the complaint to state a cause of action for professional negligence against attorney Weingarten under Lucas and its progeny. Accordingly, the trial court abused its discretion by sustaining the demurrer without

21 Cal.Rptr.3d 249

leave to amend, and we reverse the judgment.

FACTS

I. Complaint

The facts recited below are from the allegations made in the complaint. In reviewing the propriety of the trial court's sustaining of the demurrer, we, of course, accept as true the factual allegations properly pleaded in the complaint. (See Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 193, 126 Cal.Rptr.2d 908, 57 P.3d 372; Cryolife, Inc. v. Superior Court (2003) 110 Cal.App.4th 1145, 1152, 2 Cal.Rptr.3d 396.)

Weingarten was a licensed California attorney practicing law in the County of Monterey.2 In the early 1990's the testator, Dora Ellis, retained Weingarten to draft a will. On or about September 19, 2001, Ellis requested that Weingarten prepare a new will that would (a) revoke her prior wills and codicils, and (b) name Osornio as the executor and sole beneficiary under Ellis's new will.

The September 19, 2001 will (2001 Will) prepared by Weingarten on behalf of Ellis "failed to include a Certificate of Independent Review as required by California Probate Code Section 21350 et seq." Therefore (the complaint alleges), Weingarten failed to exercise reasonable care in performing legal services for Ellis.

Osornio was the intended sole beneficiary of Ellis, and she would have received the entire value of Ellis's estate had Weingarten exercised reasonable care, skill, and diligence in preparing the 2001 Will. Osornio alleges

124 Cal.App.4th 314

that, as a direct and proximate result of Weingarten's negligence, she was precluded from receiving the value of the estate under the 2001 Will and was thereby damaged.

II. Other Relevant Facts

There are facts other than those alleged in the complaint that both appear undisputed and are material to our consideration of this appeal. These undisputed facts are disclosed in a written decision after trial in the probate court involving the Ellis estate.3 That decision was attached to a request for judicial notice filed by Weingarten in support of his demurrer and was properly considered in connection with the demurrer. (See Evid.Code, § 452, subd. (d); Frommhagen v. Board of Supervisors (1987) 197 Cal.App.3d 1292, 1299, 243 Cal.Rptr. 390 [in ruling on demurrer, "court may take judicial notice of the official acts or records of any court in this state"].)

Peggy Williams was the beneficiary under Ellis's prior will, dated October 7, 1993 (1993 Will); the prior will contained two codicils dated June 29, 1994, and July 10, 1997, respectively. Ellis died in May 2002. Williams filed a petition to probate the 1993 Will. Osornio objected to the Williams petition and filed a separate petition to probate the 2001 Will. Williams objected to the Osornio petition on the grounds of lack of capacity and undue influence. The dispute proceeded to trial in the probate court in June 2003.

21 Cal.Rptr.3d 250

The parties to the probate proceeding stipulated that Osornio "was a care custodian of a dependent adult, Dora Ellis, in September 2001 and that the provisions of Probate Code Section 21350[, subdivision] (a)(6) applied." Similarly, Osornio admitted in her opposition to the demurrer that she was Ellis's care custodian, "thus triggering the provisions of Probate Code Section 21350[, subdivision] (a)(6)." It is further apparent that, at the time Ellis consulted Weingarten in September 2001, he was aware that Osornio was Ellis's care custodian.4 The probate court concluded after trial — in its tentative decision dated August 29, 20035 — that Osornio had failed to satisfy her burden of establishing by clear and convincing evidence that the transfer of

124 Cal.App.4th 315

property to Osornio in the 2001 Will was not the product of fraud, menace, duress, or undue influence, as provided in section 21351, subdivision (d) (hereafter section 21351(d)).6

PROCEDURAL HISTORY

Osornio filed her complaint on May 20, 2003. Weingarten filed a general and special demurrer to the complaint. Weingarten contended, inter alia, that the complaint (a) failed to state facts sufficient to constitute a cause of action, (b) was uncertain, and (c) contained allegations that were heard and decided previously by the court. Osornio opposed the demurrer. After hearing, on December 3, 2003, the trial court sustained the general demurrer without leave to amend. The court entered a judgment of dismissal nunc pro tunc as of March 1, 2004.

Osornio filed a notice of appeal from the judgment on March 12, 2004. The appeal from the judgment was filed timely (Cal. Rules of Court, rule 2(a)(1)) and is a proper subject for appellate review. (Code Civ. Proc., § 904.1, subd. (a)(1); Castro v. State of California (1977) 70 Cal.App.3d 156, 158, 138 Cal.Rptr. 572.)

DISCUSSION

I. Standard Of Review

A general demurrer is appropriate where the complaint "does not state facts sufficient to constitute a cause of action." (Code Civ. Proc., § 430.10, subd. (e).) There are "long-settled rules" that appellate courts follow in addressing the merits of a challenge to a complaint by demurrer: "`We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint

21 Cal.Rptr.3d 251

a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court abused its discretion and we reverse; if

124 Cal.App.4th 316

not, there is no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal. Rptr. 718, 703 P.2d 58.)

A demurrer tests the sufficiency of the complaint as a matter of law; as such, it raises only a question of law. (See Code Civ. Proc., § 589; Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706, 42 Cal.Rptr.2d 172.) On a question of law, we apply a de novo standard of review on appeal. (Vallejo Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th 929, 937, 29 Cal.Rptr.2d 669.) While negligence is ordinarily a question of fact, the existence of duty is generally one of law. (Meighan v. Shore (1995) 34 Cal.App.4th 1025, 1033, 40 Cal.Rptr.2d 744 (Meighan); Banerian v. O'Malley (1974) 42 Cal.App.3d 604, 612-613, 116 Cal.Rptr. 919 (Banerian).) Thus, a demurrer to a negligence claim will properly lie only where the allegations of the complaint fail to disclose the existence of any legal duty owed by the defendant to the plaintiff. (Banerian, supra, at p. 613, 116 Cal.Rptr. 919.)

II. Issues On Appeal

The single issue raised on appeal is whether the court erred in sustaining Weingarten's general demurrer without leave to amend. This order was apparently founded...

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  • Paulus v. Bob Lynch Ford, Inc., No. H028629.
    • United States
    • California Court of Appeals
    • May 17, 2006
    ...conclusory statement at the end of his opening brief does not preserve the issue for appeal. (See Osornio v. Weingarten (2004) 124 Cal.App.4th 304, 316, 21 Cal.Rptr.3d 246, fn. 7: "`Issues do not have a life of their own: if they are not raised or supported by argument or citation to author......
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84 cases
  • Berg & Berg Enter. v. Sherwood Partners, No. H026821.
    • United States
    • California Court of Appeals
    • July 29, 2005
    ...Zeigler Disharoon Gallagher & Gray (2003) 109 Cal.App.4th 1287, 1294-1307, 135 Cal.Rptr.2d 888; Osornio v. Weingarten (2004) 124 Cal.App.4th 304, 320-321, 21 Cal.Rptr.3d Relevant to the weighing of these considerations here, we note that Berg suggests on appeal that because of the "......
  • Goonewardene v. ADP, LLC, B267010
    • United States
    • California Court of Appeals
    • November 4, 2016
    ...injury; and (4) actual loss or damage resulting from the professional's negligence. [Citations.]’ ” (Osornio v. Weingarten (2004) 124 Cal.App.4th 304, 319, 21 Cal.Rptr.3d 246, quoting Budd v. Nixen (1971) 6 Cal.3d 195, 200, 98 Cal.Rptr. 849, 491 P.2d 433.) Here, the key question regarding a......
  • San Mateo Union High Sch. Dist. v. Cnty. of San Mateo, A134543
    • United States
    • California Court of Appeals
    • January 31, 2013
    ...the sufficiency of the complaint as a matter of law; as such, it raises only a question of law." (Osornio v. Weingarten (2004) 124 Cal.App.4th 304, 316 [21 Cal.Rptr.3d 246].) " 'The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitti......
  • Paulus v. Bob Lynch Ford, Inc., No. H028629.
    • United States
    • California Court of Appeals
    • May 17, 2006
    ...conclusory statement at the end of his opening brief does not preserve the issue for appeal. (See Osornio v. Weingarten (2004) 124 Cal.App.4th 304, 316, 21 Cal.Rptr.3d 246, fn. 7: "`Issues do not have a life of their own: if they are not raised or supported by argument or citation to a......
  • Request a trial to view additional results

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