Worton v. Worton, No. B053533

• Court: California Court of Appeals
• Writing for the Court: LILLIE; FRED WOODS; JOHNSON
• Citation: 234 Cal.App.3d 1638,286 Cal.Rptr. 410
• Decision Date: 10 October 1991
• Docket Number: No. B053533
• Parties: Elizabeth Baur WORTON, Plaintiff and Appellant, v. Eugene W. WORTON, M.D., et al., Defendants and Respondents.

Page 410

286 Cal.Rptr. 410 234 Cal.App.3d 1638 Elizabeth Baur WORTON, Plaintiff and Appellant,
v.
Eugene W. WORTON, M.D., et al., Defendants and Respondents. No. B053533. Court of Appeal, Second District, Division 7, California. Oct. 10, 1991.
Review Denied Jan. 29, 1992.

[234 Cal.App.3d 1643] Keesal, Young & Logan, Michael M. Gless, Robert D. Feighner, Long Beach, Morgan, Wenzel & McNicholas, Irvine, and John P. McNicholas, Los Angeles, for plaintiff and appellant.

Antin, Litz & Gilbert, Ronald A. Litz and Michael L. Taylor, Los Angeles, for defendants and respondents Eugene W. Worton, M.D., and Eugene W. Worton Professional Corp.

Wilson, Elser, Moskowitz, Edelman & Dicker and Martin K. Deniston, Los Angeles, for defendants and respondents Newell & Chester and Robert M. Newell.

LILLIE, Presiding Justice.

Plaintiff appeals from summary judgment entered against her and in favor of defendants.

FACTS

Plaintiff sued her former husband, Eugene Worton, M.D. (Worton), for damages for fraud and conversion, and her former attorney, Robert Newell (Newell), for damages for legal malpractice. ¹

The complaint, filed January 24, 1989, contained four causes of action. The first cause of action (fraud and deceit) alleged: On May 17, 1984, plaintiff filed a petition for dissolution of marriage against defendant Worton. On August 22, 1986, following a trial, judgment of dissolution was entered. The judgment purported to divide equally all community assets of the parties, including the "Defined Benefit Pension Plan" (the plan) of Worton, and included the following provision: "The parties shall create and recognize as to [the plan] the existence of [plaintiff's] right to: [p] (1) An undivided one-half interest in the total value of accrued benefits of [Worton] plus any accrued and accumulated interest and earnings payable in accordance with the terms of [the plan]. As of September 30, 1985, the estimated distributable benefits payable thereunder were $501,061.27." Worton represented to plaintiff and to the court in the dissolution proceeding that he had [234 Cal.App.3d 1644] made a full disclosure of all assets of the marriage, including the plan, and that the benefits payable under the plan were $501,061.27. The representations were false in that there was an additional $162,000 in the plan. Said representations were known by Worton to be false from the time they were made through the time judgment was entered. Worton intended that plaintiff rely on the representations and she did rely on them justifiably and without knowledge of their falsity. Not until September 1988 did plaintiff discover that the benefits of the plan included an additional $162,000 by which the plan was overfunded and that the overfunded amounts were commingled by Worton so that plaintiff could not have discovered them earlier. As a result of plaintiff's reliance on the truth of Worton's representations plaintiff was damaged in the sum of $81,000.

The second cause of action (fraud and deceit--concealment) alleged that Worton, in violation of his fiduciary duty to plaintiff, concealed from her the sum of $162,000 in the benefits of the plan with the intent to defraud her.

The third cause of action (conversion) alleged that Worton is in wrongful possession of $81,000 belonging to plaintiff, refuses to deliver said sum to plaintiff despite repeated demands, and converted said sum to his own use.

The fourth cause of action (legal malpractice) alleged: Plaintiff retained defendant Newell to represent her in the dissolution proceeding. In the course of such representation Newell negligently failed to discover and obtain evidence of the existence of the excess assets of $162,000 as part of the accrued benefits of the plan. As a result of Newell's negligence plaintiff sustained damages of $81,000.

Worton moved for summary judgment in his favor on the ground that the action against him is barred by res judicata. Newell moved for summary judgment in his favor on the ground plaintiff's action for legal malpractice is barred by the statute of limitations contained in Code of Civil Procedure section 340.6. ²

In support of their motions for summary judgment defendants presented excerpts from the depositions of plaintiff and Newell, as well as Roger Halfhide and Michael Gless, attorneys retained by plaintiff after entry of the judgment of dissolution. The deposition testimony showed: Before commencement of trial in the dissolution proceeding Newell told plaintiff that he knew little about pension plans. He also informed plaintiff that he had not [234 Cal.App.3d 1645] arranged for an expert to testify regarding the plan. During trial, in a conversation outside the courtroom, Worton told plaintiff and Newell that he (Worton) made no contributions to the plan following the separation of the parties because the plan was overfunded; Worton did not mention the amount of the overfunding and plaintiff did not know what was meant by overfunding. Worton testified to the same effect, i.e., he made no contributions to the plan in 1984 because it was overfunded. In cross-examining Worton's pension expert, Newell asked about overfunding; the witness said the amount of the overfunding would be returned to Worton but his testimony did not disclose that amount. Although he admittedly was not an expert in pension law, Newell did not contact the actuary for the plan or retain an expert to appraise the plan because "[t]hat was agreed there would be a division in kind. The valuation [became] secondary."

Plaintiff discharged Newell in late August 1986. In October 1986 plaintiff retained Roger Halfhide, an attorney specializing in pension law, to determine whether the judgment of dissolution properly divided the plan benefits in accordance with California community property law. In January 1987 Halfhide learned: Worton made no contributions to the plan after the separation of the parties (Jun. 1, 1984); as of September 30, 1985, the value of Worton's accrued benefits in the plan was $501,000; sometime between September 30, 1985, and September 30, 1986, the plan was terminated and any excess assets therein allocated to Worton; as of September 30, 1986, the fair market value of Worton's accrued benefits in the plan, including excess assets allocated to him, was $672,534.

After he learned that excess assets in the plan had been allocated to Worton, and before July 6, 1987, Halfhide reviewed the judgment to see if it covered the excess assets. He concluded (also before July 6, 1987) that the judgment was silent regarding excess assets and therefore was ambiguous. By May 1987 Halfhide estimated the excess assets to be $122,000 and he so informed Michael Gless, plaintiff's other attorney. Sometime in 1987 Gless told plaintiff that Halfhide believed there were excess assets in the plan which were not reported at the time of trial. On July 6, 1987, Halfhide wrote to plaintiff advising her that on September 30, 1985, Worton's accrued benefits in the plan were $501,000 and the judgment awarded plaintiff a half interest in that sum; however, sometime between September 30, 1985, and September 30, 1986, the plan was terminated and the excess assets distributed to the participants with the result that Worton's accrued benefits increased to about $670,000 as of the latter date. By the end of 1987 Halfhide suspected Newell may have been negligent regarding the plan, but he did not tell plaintiff of his suspicions. Plaintiff testified that before 1988 she had reason to believe the judgment of dissolution did not properly divide the [234 Cal.App.3d 1646] assets in the plan between her and Worton because Halfhide told her there were excess assets in the plan.

Plaintiff opposed both motions for summary judgment. The motions were granted and summary judgment was entered in favor of defendants. This appeal followed.

DISCUSSION I STANDARD OF REVIEW

Summary judgment is proper if the supporting papers are sufficient to sustain a judgment in favor of the moving party as a matter of law and the opposing party presents no evidence which gives rise to a triable issue as to any material fact. (Code Civ.Proc., § 437c, subd. (c); Ramsey v. City of Lake Elsinore (1990) 220 Cal.App.3d 1530, 1536, 270 Cal.Rptr. 198.) In order to prevail on a summary judgment motion the defendant must conclusively negate a necessary element of plaintiff's case or establish a complete defense. (Horsemen's Benevolent & Protective Assn. v. Insurance Co. of North America (1990) 222 Cal.App.3d 816, 820, 271 Cal.Rptr. 838.) Where the evidence presented by defendant does not support judgment in its favor the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff. (Albertini v. Schaefer (1979) 97 Cal.App.3d 822, 831, 159 Cal.Rptr. 98; National Exhibition Co. v. City and County of San Francisco (1972) 24 Cal.App.3d 1, 5, 100 Cal.Rptr. 757.)

The evidence of the moving party is strictly construed and that of opposing party liberally construed. (Coppola v. Superior Court (1989) 211 Cal.App.3d 848, 862, 259 Cal.Rptr. 811.) "But 'where there is no material issue of fact to be tried and the sole question before the trial court is one of law as to whether the claim of the moving party is tenable on the undisputed facts, it is the duty of the trial court on a motion for summary judgment to hear and determine the issue of law.' [Citation.]" (Rombalski v. City of Laguna Beach (1989) 213 Cal.App.3d 842, 848, 261 Cal.Rptr. 820.)

In reviewing a grant of summary judgment, an appellate court must make its own independent determination of the construction and effect of the papers submitted. (Preis v. American Indemnity Co. (1990) 220 Cal.App.3d 752, 757, 269 Cal.Rptr. 617.) Accordingly, we review the summary judgment granted below without deference to the trial court's determination.

234 Cal.App.3d 1647

II

SUMMARY JUDGMENT IN FAVOR OF WORTON

"The doctrine of res judicata is composed of two parts:...