United Community Church v. Garcin

• Decision Date: 19 June 1991
• Docket Number: No. B046856,B046856
• Citation: 282 Cal.Rptr. 368,231 Cal.App.3d 327
• Court: California Court of Appeals Court of Appeals
• Parties: UNITED COMMUNITY CHURCH, Plaintiff and Respondent, v. Robert W. GARCIN, et al., Defendants and Appellants.

Page 368

282 Cal.Rptr. 368

231 Cal.App.3d 327

UNITED COMMUNITY CHURCH, Plaintiff and Respondent, v. Robert W. GARCIN, et al., Defendants and Appellants.

No. B046856.

Court of Appeal, Second District, Division 1, California.

June 19, 1991.

Charlston, Revich & Williams, Los Angeles, Murchison & Cumming, Santa Ana, Horvitz & Levy, George P. Schiavelli and Douglas G. Benedon, Encino, for defendants and appellants.

Scolinos, Slater & Bernal, Pasadena, Leonard Sacks, Encino, and Marian H. Tully, West Covina, for plaintiff and respondent.

VOGEL, Associate Justice.

Properly conceived and executed, motions for summary adjudication of issues encourage settlement, reduce trial time, save money for the parties and preserve limited judicial resources. Ill-conceived and improperly executed motions for summary adjudication have just the opposite effect--they waste time and money and, almost as certainly as night follows day, result in reversals and further litigation. This case presents a paradigm of the latter form of motion and we therefore reverse a judgment predicated on an earlier order adjudicating three issues in a legal malpractice action, finding that the issue of causation was neither summarily adjudicated nor proved at the subsequent trial.

FACTS

Promising construction of a theological library, William S. McBirnie, the senior minister of United Community Church (UCC), borrowed money from two dozen individuals and signed promissory notes in his capacity as President of the Community Churches of America (CCA). He used the money for other purposes and refused to repay the loans.

Not surprisingly, the two dozen lenders sued McBirnie, CCA, UCC and several other entities for damages, an accounting, and imposition of a constructive trust, claiming McBirnie had diverted the borrowed funds to UCC and that UCC was CCA's alter ego, formed expressly to protect McBirnie and CCA from liability on these loans. (Kendall v. Community Churches of America (Super.Ct.L.A. County, 1984, No. NCC 14282G).)

Robert W. Garcin, a partner in the law firm of Irsfeld, Irsfeld & Younger (collectively "Garcin"), communicated to Christ Troupis, counsel for the Kendall plaintiffs, that he was authorized to accept service on behalf of all of the Kendall defendants, including UCC. Copies of the summons and complaint were duly delivered to Garcin and Garcin, in turn, acknowledged receipt on behalf of UCC and the other defendants.

Garcin failed to respond to the Kendall complaint on behalf of any of the defendants and, at Troupis' request, defaults were entered. A prove-up hearing was held, at which Troupis submitted evidence to prove, among other things, that UCC was the alter ego of McBirnie and CCA. The trial court entered judgment in favor of the Kendall plaintiffs and against all defendants in the amount of $1,234,045. The Kendall defendants' subsequent motion to vacate the default judgment was denied, and their appeal from the judgment (based solely on the validity of service on Garcin) was unsuccessful. (Kendall v. McBirnie (Jan. 5, 1987) B015508 [nonpub. opn.].)

Predictably, UCC sued Garcin for damages for legal malpractice, alleging that Garcin was negligent in failing to file an answer or other responsive pleading in the Kendall action. Garcin answered, generally denying the allegations and raising affirmative defenses of comparative fault and failure to mitigate damages.

UCC moved for summary judgment or, in the alternative, summary adjudication of three issues. In the second part of the motion, UCC asked the trial court to adjudicate (1) that "the summons and complaint in the [Kendall action were] properly served upon [UCC] by service upon [Garcin], acting as its attorneys in that action;" (2) that Garcin's action "in not filing an [a]nswer or other responsive pleading to the Kendall [c]omplaint ... breached [Garcin's] duty of care to [UCC], and was thereby negligent and below the standard of care;" and (3) that "as a proximate result of the actions of [Garcin] in not timely responding to the complaint in the Kendall action, default judgment in the amount of $1,234,045.00 was entered against [UCC]." (Emphasis added.)

In its accompanying separate statement of undisputed facts, UCC listed twelve facts to establish that UCC was sued in the Kendall action, that (with authority to do so) Garcin agreed to and did accept service on behalf of UCC, that such service was proper, that Garcin nevertheless failed to respond to the Kendall complaint, that default was thereafter requested and entered and a judgment rendered in the amount of $1,234,045 and, finally, that because Garcin failed to respond within 30 days, UCC "lost the case and its money and property was ordered to be taken without further warning from the court."

Garcin opposed the motion, submitting substantial evidence and argument to show that even if an answer had been filed for UCC, it nevertheless would have suffered the same judgment because it had no legitimate defense to the Kendall action. Among other things, Garcin offered evidence to show that UCC was in fact the alter ego of McBirnie and CCA as found by the trial court at the default prove-up hearing in the Kendall action.

In its reply, UCC for the first time suggested that it was not the alter ego of McBirnie or CCA. In neither its moving papers nor its reply did UCC address either of Garcin's affirmative defenses nor did it prove or even argue that, but for Garcin's failure to respond to the Kendall complaint, it had a meritorious defense that would have resulted in a judgment against the Kendall plaintiffs and in favor of UCC.

The trial court denied the motion for summary judgment but granted the motion for summary adjudication, adjudicating all three issues as requested by UCC. Thereafter, the trial court conducted a non-jury trial on the issue of damages. Although Garcin attempted to present evidence and argue causation--that the judgment would have been entered against UCC even if an answer had been filed on its behalf--the trial court expressly and unequivocally precluded the offered evidence and argument, and entered judgment in favor of UCC in the amount of $2,106,146.68. Garcin's motion for a new trial was denied and this appeal followed.

DISCUSSION

Garcin contends the judgment must be reversed because the motion for summary adjudication of issues was fatally defective and should have been denied. He asserts that UCC failed to demonstrate that, as a matter of law, it would have prevailed in the Kendall action had an answer been filed on its behalf. Alternatively, Garcin asserts that if the adjudicated issues are read narrowly to leave open the question of causation, the judgment must nevertheless be reversed because the trial court refused to hear evidence on that issue. Other issues are raised, but we do not reach them because we agree with Garcin that there is no proof of causation.

A. THE STATUTE

At the time of UCC's motion, former section 437c of the Code of Civil Procedure provided, in subdivision (f), that a party could move for summary adjudication of issues (SAI), either by itself or as an alternative to summary judgment. ¹ Then and now, subdivision (b) requires that a motion for SAI be supported by "a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court's discretion constitute a sufficient ground for denial of the motion.... The opposition papers shall include a separate statement which responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts which the opposing party contends are disputed...." ²

B. THE PYRAMID GAME

Outside the investment arena, "pyramid" is not a dirty word. As Judge John Zebrowski of the Los Angeles Superior Court has explained, visualization of a motion for SAI as a pyramid directs both the drafter's and the decision-maker's attention to the proper analysis. (Zebrowski, The Summary Adjudication Pyramid (Nov. 1989) 12 L.A.Law. 28.) Construction starts at the top and proper design builds a structure subject to demolition only by opposition establishing a triable issue of material fact and not by a procedural glitch.

At the top is the issue the moving party wants adjudicated. To justify adjudication of the issue, the moving party must show that it is supported by undisputed facts, a showing made by way of the next step down the pyramid, the separate statement of undisputed facts. At the base of the pyramid is admissible evidence supporting the facts listed in the separate statement. Upon descending to the base of the pyramid, the moving party shifts the burden to the opponent who must then, by use of a responsive separate statement and admissible evidence, establish that there are triable issues of material fact. (Zebrowski, The Summary Adjudication Pyramid, supra, at pp. 29-30.)

C. THE ISSUES

As this case demonstrates, the manner in which an issue is framed is critical. To begin with, an issue should be phrased in language appropriate for adoption by the court if the motion is granted. (See, e.g., Super.Ct., L.A. County, Law and Discovery Policy Manual, p 209(a).) ³ If nothing else, this avoids debate about whether the language of the order properly reflects the issue actually adjudicated.

More importantly, the issue should be clear and unambiguous and its scope should be apparent. In this regard, UCC's first two issues are reasonably clear--that summons and complaint were properly served on UCC by service on Garcin, acting as UCC's attorney, and that Garcin's failure to file a responsive pleading was a breach of his...