Radovich v. Locke-Paddon

• Decision Date: 08 June 1995
• Docket Number: LOCKE-PADDON,No. H012054,H012054
• Citation: 35 Cal.App.4th 946,41 Cal.Rptr.2d 573
• Court: California Court of Appeals Court of Appeals
• Parties: Rafael RADOVICH, Plaintiff and Appellant, v. William F., et al., Defendants and Respondents.

Page 573

41 Cal.Rptr.2d 573

35 Cal.App.4th 946

Rafael RADOVICH, Plaintiff and Appellant, v. William F. LOCKE-PADDON, et al., Defendants and Respondents.

No. H012054.

Court of Appeal, Sixth District, California.

June 8, 1995.

Review Denied Sept. 14, 1995.

Marshall Warren Krause and Krause, Baskin & Ballentine, and James S. Madow, Larkspur, for appellant.

Frederick H. Ebey, Leslie J. Karst and Grunsky, Ebey, Farrar & Howell, Watsonville, for respondents.

BAMATTRE-MANOUKIAN, Associate Justice.

Plaintiff Rafael Radovich appeals from a judgment, for defendants William F. Locke-Paddon (an attorney) and the law firm by which Locke-Paddon was employed, based on summary adjudication of issues in consolidated civil actions. The trial court was called upon to answer two questions of law:

(1) Did Locke-Paddon or the law firm, in preparing a will for a client who died without executing the will, owe a duty of care to Radovich as a potential beneficiary named in the unsigned will? The trial court answered that they did not.

(2) Were any claims Radovich may have had against Locke-Paddon or the law firm, arising out of asserted breaches of fiduciary duties in other transactions, barred by the applicable statute of limitations? The trial court answered that they were.

We shall conclude that the trial court's answers were correct, and shall affirm the judgment.

The facts material to the issues before us are essentially undisputed.

Radovich married Mary Ann Borina (the decedent) in 1957. Shortly before they married, Radovich and the decedent signed a form of prenuptial agreement, prepared for the decedent by the law firm, which stated among other things that each party's property, owned at or acquired after the marriage, and each party's earnings after the marriage, should be and remain his or her separate property, and that "[n]o community property shall exist during the marriage...."

It appears that the law firm may have prepared a will for Radovich in 1970; its provisions are not before us.

In November 1973 the decedent executed a will, prepared by the law firm, which, after specific gifts to Radovich and others, would give the residue of the estate to two charitable remainder trusts for the ultimate benefit of the Regents of the University of California upon the death of the last to die of Radovich, the decedent's sister, and the sister's husband. Under one of the trusts, specified income payments were to be made to Radovich during his lifetime, and then to the decedent's sister during her lifetime, and then to the sister's husband during his lifetime. Under the other trust, similar payments were to be made to the decedent's sister during her lifetime, and then to Radovich during his lifetime, and then to the sister's husband during his lifetime.

In January 1974 the decedent and her sister entered into a written partnership agreement intended to be a memorandum of a preexisting farming and real estate investment partnership between them known as "Borina Orchards." The agreement, prepared by the law firm, included a "consent of husbands" form on the face of which Radovich and the sister's husband, by their respective signatures, acknowledged "that the partnership agreement involves property which is wholly the separate property of our wives and in which we have no part."

In June 1985 Radovich executed a will, prepared by Locke-Paddon, which recited in part that "[a]ll of my estate is my separate property. My wife and I have no community property, as more fully set forth in a written agreement between us dated May 9, 1957."

In the trial court Radovich asserted, and neither Locke-Paddon nor the law firm denied, that Locke-Paddon and the law firm represented Radovich in 1987, in connection with acquisition and leasing of real property, and in 1989, in connection with exercise by a tenant on the real property of an option to extend its lease.

On June 21, 1991, Locke-Paddon met with the decedent to discuss drafting a new will for her. At the meeting, Locke-Paddon learned that the decedent had been diagnosed as suffering from breast cancer, for which she had received chemotherapy treatments. In the trial court Radovich represented, and Locke-Paddon did not deny, that the purpose of the meeting was "to discuss the drafting of a new will under which [Radovich] was to receive 100% of the testamentary trust income for the rest of his life ...," and that Locke-Paddon did not discuss the new will with the decedent at any time after the June 1991 meeting.

Locke-Paddon declares that "I delivered a rough draft of [the decedent's] proposed new will to her on October 8, 1991, for her review and comments. Once this first draft had been delivered to [the decedent], it was my understanding that the next move was hers; I could not proceed any further with the preparation of the new will until she communicated to me her comments and whether she was satisfied with its provisions. Moreover, [the decedent] told me she intended to confer with her sister ..., who had a will with provisions similar to those of [the decedent's] 1973 will, before finalizing the provisions of the draft of the proposed new will."

The draft will Locke-Paddon prepared would have directed specific gifts to Radovich and others and would have given the residue of the estate to a charitable remainder trust for the ultimate benefit of the Greater Santa Cruz Unity Foundation and the Lucile Salter Packard Children's Hospital upon the death of Radovich. Specified income payments would have been made to Radovich, as the only income beneficiary, during his lifetime.

Locke-Paddon declares that the decedent "did not communicate with me regarding the draft of the new will prior to her death."

The decedent died on December 19, 1991. She had not executed a new will. Ultimately her 1973 will was admitted to probate.

Thereafter Radovich sued the decedent's sister, the Borina Orchards partnership, a corporation which allegedly had been wholly owned by the decedent and her sister, Locke-Paddon, and the law firm for breach of fiduciary duty and on other related theories, seeking a variety of relief. As subsequently amended, Radovich's complaint in his fiduciary duty action alleged in its fifth count that Locke-Paddon and the law firm had breached fiduciary duties to Radovich in that "they failed to inform [Radovich] of his community property rights; they failed to offer any advice to [Radovich] that his execution of the consent provision of the Borina partnership agreement, a provision which they prepared for his signature, was intended to thwart his community property rights; and they failed to obtain [Radovich's] consent to their continuing representation of [the decedent, her sister, the corporation, and the partnership], all of whom disputed and continue to dispute [Radovich's] lawful community property rights." The fifth count added allegations to support claims for compensatory and punitive damages against Locke-Paddon and the law firm. In separate counts of the fiduciary duty action Radovich alleged that Locke-Paddon and the law firm had aided and abetted, and had conspired in, violations of duties owed him; these counts were subsequently dismissed and are not before us.

Radovich then brought a separate action for legal malpractice against Locke-Paddon and the law firm, alleging in his complaint that Locke-Paddon, individually and as a representative of the law firm, had been dilatory and negligent in preparing and, ultimately, in "fail[ing] to obtain [the decedent's] due execution of," the 1991 draft will. The complaint in the malpractice action alleged that the decedent's estate had been valued at approximately $10 million.

The two actions were ordered consolidated. Shortly before trial, Locke-Paddon and the law firm moved for summary adjudication that (for purposes of the malpractice action) Locke-Paddon and the law firm owed no duty to Radovich "to draft and have executed in a prompt and diligent manner the proposed new will of [the] decedent ...," and that (as to the fifth count of the fiduciary duty action) Radovich's claim for breach of fiduciary duty against Locke-Paddon and the law firm was barred by the applicable statute of limitations, Code of Civil Procedure section 340.6.

The trial court granted summary adjudication as requested. When Radovich elected to dismiss the only other count of the fiduciary duty action then pending against Locke-Paddon and the law firm, the trial court entered judgment for both defendants in the consolidated actions. This appeal followed.

Review of summary judgment or summary adjudication "involves pure matters of law," which we review independently. (Parsons Manufacturing Corp. v. Superior Court (1984) 156 Cal.App.3d 1151, 1156, 203 Cal.Rptr. 419; AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064, 225 Cal.Rptr. 203.)

1. Duty

The theory of Radovich's malpractice action was that Locke-Paddon had owed a "duty of due care and reasonable diligence" to Radovich, "in [Radovich's] capacity as the proposed 100% income beneficiary under the 1991 Will, to carry [the decedent's] testamentary wishes into effect in a reasonably prompt and diligent fashion," and that Locke-Paddon, in breach of his duty as so defined, had failed to obtain the decedent's "due execution of a final draft of the 1991 Will prior to her death...."

The essence of this theory was that Locke-Paddon had been guilty of professional negligence: That he had owed Radovich a duty to use such skill, prudence, and diligence as other attorneys commonly possess and exercise, that he had breached that duty, and that his breach had caused injury to Radovich. (Cf. Budd v. Nixen (1971) 6 Cal.3d 195, 200, 98 Cal.Rptr. 849, 491 P.2d 433; McDaniel v. Gile (1991) 230 Cal.App.3d 363, 375, 281 Cal.Rptr. 242.)

Radovich asserts that Locke-Paddon, with knowledge of the decedent's life-threatening illness, fell short of the professional...