Donnelly v. Ayer
KEVIN J. DONNELLY, Plaintiff and Appellant, v. HAROLD G. AYER, JR., Et Al., Defendants and Respondents
- Area
- civil
- Panel
- Patricia D. Benke (author)
Analysis
The trial court granted summary judgment in favor of the defendants, ruling that the plaintiff's signed mutual release barred his legal malpractice claim. The Court of Appeal affirmed the judgment, finding no triable issues of fact regarding the validity of the release or the existence of undue influence.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Granting of summary judgment based on the mutual release“We conclude summary judgment was proper.” | de novo | correct | agree with court The appellate court correctly applied the summary judgment standard, determining that the undisputed facts—specifically that the plaintiff signed the release voluntarily and after reading it—established a complete defense to the malpractice action. The court properly rejected the plaintiff's arguments regarding the termination of the attorney-client relationship and undue influence, noting the lack of evidence that the defendant coerced the agreement. |
Authorities
- relied: Sheffield v. Eli Lilly and Co. (1983) 144 Cal.App.3d 583 — Summary judgment is proper if the moving party's affidavits sustain a judgment and the opponent fails to show triable issues; moving party's affidavits are strictly construed.
- relied: Brown v. Bleiberg (1982) 32 Cal.3d 426 — The aim of summary judgment is to discover whether parties possess evidence requiring the weighing procedures of a trial.
- relied: Sprecher v. Adamson Companies (1981) 30 Cal.3d 358 — Summary judgment is proper only if the moving party's affidavits are sufficient to sustain judgment and the opponent does not show facts sufficient to present a triable issue.
- relied: Dugar v. Happy Tiger Records, Inc. (1974) 41 Cal.App.3d 811 — Declarations containing legal conclusions or lacking personal knowledge are insufficient to defeat summary judgment.
- relied: Kramer v. Barnes (1963) 212 Cal.App.2d 440 — Police reports are inadmissible in summary judgment proceedings.
- relied: Martin v. Johnson (1979) 88 Cal.App.3d 595 — Documents that are hearsay or not authenticated are objectionable in summary judgment proceedings.
The appellate opinion: sound — The opinion is sound because it correctly applies the summary judgment standard and accurately interprets California Rules of Professional Conduct Rule 6-102, which permits the settlement of malpractice claims. The court effectively addresses the plaintiff's arguments regarding undue influence and the termination of the attorney-client relationship by pointing to the undisputed evidence of voluntary signing and the contractual terms of the retainer agreement.
The trial court granted summary judgment to attorney Harold Ayer and his firm on Kevin Donnelly's legal malpractice complaint, holding that a mutual release Donnelly signed for $1,000 and forgiveness of advanced sums barred the action. The Court of Appeal affirmed, finding no triable issue on termination of the attorney-client relationship, undue influence, or violation of rule 6-102, and finding Donnelly's opposing papers evidentiarily inadequate.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Grant of summary judgment on the ground that the signed mutual release is a complete defense to the malpractice action“Simply stated, the release precludes the underlying lawsuit and is thus a complete defense to the malpractice action.” | de novo | correct | agree with court The court applied the Code Civ. Proc. § 437c framework from Sheffield, Brown and Sprecher, independently examining whether the opposing papers raised a triable issue. The undisputed facts—Donnelly read the release, admitted signing it freely, initiated the settlement demand, and had consulted six or seven attorneys—support the conclusion that the release was a valid bar. |
No triable issue that the attorney-client relationship continued past Ayer's October 13, 1983 termination letter despite no filed substitution of counsel“Under the retainer agreement entered into by Donnelly, Ayer needed only give notice of termination in order to end the attorney-client relationship.” | de novo | correct | agree with court The court relied on the retainer's withdrawal clause, two termination letters, and Donnelly's own deposition admission that he understood the relationship had ended and immediately sought new counsel. Donnelly offered no contrary evidence. The conclusion is defensible, though the court did not grapple with whether an attorney's fiduciary obligations persist as to transactions arising directly from the prior representation. |
No presumption of undue influence or triable issue of coercion arising from Ayer's financial entanglement with Donnelly“the record is devoid of evidence that Ayer used this entanglement to coerce an agreement with Donnelly.” | de novo | correct | agree with court Donnelly admitted signing freely and voluntarily, the voluntariness was undisputed below, and Donnelly himself proposed the settlement terms. Even if some presumption applied, the undisputed facts of independent consultation and client-initiated demand would rebut it. The result is supportable on this record. |
Release not invalid under Rules of Professional Conduct, rule 6-102, because it settled an existing malpractice claim“Donnelly failed to show Ayer improperly attempted to exonerate himself in violation of rule 6-102.” | de novo | correct | agree with court Rule 6-102 expressly permits settling a malpractice claim, and the claim here was threatened by Donnelly after consulting other counsel. The court's reading of the rule's text is correct, though it did not discuss Supreme Court disciplinary authority on releases obtained from clients, such as Ames v. State Bar, which would have strengthened or qualified the analysis. |
Trial court properly applied summary judgment standards; Donnelly's opposing declaration and exhibits were inadmissible or inadequate“Donnelly did not submit his own affidavit, and the declaration submitted by his attorney is fraught with both legal conclusions and representations of which the declarant had no personal knowledge.” | de novo | correct | agree with court Attorney declarations lacking personal knowledge, unauthenticated hearsay documents, and police reports are properly disregarded under Dugar, Kramer and Martin. The court correctly held the opposition failed to present admissible evidence creating a triable issue. |
Authorities
- relied: Sheffield v. Eli Lilly and Co. (1983) 144 Cal.App.3d 583 — Summary judgment procedure tests whether parties possess evidence requiring trial; moving party's affidavits strictly construed, opposing party's liberally construed.
- relied: Brown v. Bleiberg (1982) 32 Cal.3d 426 — Summary judgment standards under Code Civ. Proc. § 437c; court determines existence of triable issues, does not decide them.
- relied: Sprecher v. Adamson Companies (1981) 30 Cal.3d 358 — Summary judgment is proper only where moving party's showing would sustain judgment and opponent fails to show facts raising a triable issue.
- relied: Dugar v. Happy Tiger Records, Inc. (1974) 41 Cal.App.3d 811 — Declarations containing legal conclusions or matters outside the declarant's personal knowledge are insufficient to oppose summary judgment.
- relied: Kramer v. Barnes (1963) 212 Cal.App.2d 440 — Police reports are inadmissible hearsay and cannot be used to raise a triable issue.
- relied: Martin v. Johnson (1979) 88 Cal.App.3d 595 — Unauthenticated and hearsay documents are not competent evidence on a summary judgment motion.
- missed: Ames v. State Bar (1973) 8 Cal.3d 910 — An attorney who obtains from clients a release of his own malpractice liability without ensuring they have independent advice violates the rule against attempting to exonerate oneself from malpractice liability.
The appellate opinion: sound with gaps — The opinion correctly applies the summary judgment framework and rests on undisputed admissions by Donnelly that he read and voluntarily signed a release he himself proposed after consulting multiple attorneys, which fully supports affirmance. It is thin, however, in not engaging Supreme Court disciplinary authority on attorney-procured releases or the question whether fiduciary duties survive termination as to transactions arising from the representation, and it never expressly states the standard of review.
Opinion — Benke
Opinion
BENKE, J. *Kevin J. Donnelly appeals a summary judgment favoring defendants Harold G. Ayer, Jr., Phillip L. Ginsburg and the law firm of Ayer and Ginsburg on Donnelly’s complaint for legal malpractice.
Facts
By a retainer agreement signed July 29, 1980, Kevin Donnelly employed the law firm of Ayer and Ginsburg to represent him in an action for personal injuries sustained as a result of an altercation with a bus driver. The retainer agreement provided “ [t]he law firm may withdraw at any time upon giving reasonable notice to the client.” During the representation of Donnelly, Ayer advanced to him approximately $13,000. Donnelly did not prevail at trial.
On October 13, 1983, Ayer wrote to Donnelly, informing him he would no longer be representing him. Ayer advised Donnelly of the availability of a motion for a new trial or an appeal. He also advised him to retain another attorney. One month later Ayer again wrote to Donnelly advising him that he was no longer representing him.
After Ayer informed Donnelly he would not be representing him, Donnelly told Ayer in writing he had consulted another attorney and would be filing a malpractice action against Ayer.
By December 27, 1983, Donnelly had discussed his contemplated malpractice suit with six or seven attorneys, and one attorney informed Donnelly he had a “good case” against Ayer. Donnelly then wrote to Ayer, telling him he was suing him for $10,000. However, Donnelly informed Ayer that *982 if Ayer would pay him $10,000, 1 Donnelly would not file the malpractice action against him.
On January 9, 1984, Donnelly and Ayer signed a mutual release form. By the agreement embodied in it, Donnelly received $1,000 in cash, and in return agreed not to bring a malpractice action against Ayer. Ayer agreed not to pursue collection of sums of money advanced to Donnelly. Ayer’s associate, Brian Dunn, provided the release form to Donnelly and was present when he signed it. Donnelly read the release form before he signed it and signed it of his own free will.
On September 28, 1984, Donnelly filed a complaint against Ayer and his law firm for legal malpractice.
On August 8, 1985, Ayer brought a motion for summary judgment, claiming Donnelly had waived his right to sue Ayer and his law firm for malpractice by signing the release. After hearing, the court granted Ayer summary judgment.
Donnelly appeals, contending the court erred in granting Ayer’s motion for summary judgment. We conclude summary judgment was proper.
Discussion
I
In considering a motion for summary judgment (Code Civ. Proc., § 437c, subd. (a))* 2 brought by a defendant, the trial court must determine whether the plaintiff has presented any facts which give rise to a triable issue. The court may not pass upon the issue itself. Summary judgment is proper only if the affidavits in support of the moving party are sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge to be sufficient to present a triable issue. “The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial.” (Sheffield v. Eli Lilly and Co. (1983) 144 Cal.App.3d 583, 611 [192 Cal.Rptr. 870]; Brown v. Bleiberg (1982) 32 Cal.3d 426, 436, fn. 7 [186 Cal.Rptr. 228, 651 P.2d 815]; Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 362 [178 Cal.Rptr. 783, 636 P.2d 1121].) In *983 examining the sufficiency of the affidavits, those of the moving party are to be strictly construed, and those of the opposing party are to be liberally construed. (Sheffield v. Eli Lilly and Co., supra, 144 Cal.App.3d at p. 611.)
A
Here the undisputed facts show Donnelly signed the mutual release voluntarily and after he had read it. Simply stated, the release precludes the underlying lawsuit and is thus a complete defense to the malpractice action.
Donnelly seeks to avoid the obvious by asserting his attorney-client relationship was never officially terminated by the filing of a substitution of counsel. From this, he argues a presumption of undue influence existed at the time he signed the release and this presumption raises issues of fact.
Donnelly correctly recites the law relating to circumstances under which the attorney-client relationship terminates. However, the evidence showed the attorney-client relationship between Ayer and Donnelly ended when, on October 13, 1983, following the trial, Ayers notified Donnelly he would take no further action in the case. Under the retainer agreement entered into by Donnelly, Ayer needed only give notice of termination in order to end the attorney-client relationship. Hence, the posttrial termination was consistent with the retainer agreement. Moreover, Donnelly’s deposition testimony clearly reflects his own understanding the professional relationship with Ayer came to an end upon such notice, at which time he immediately sought to hire new counsel.
Although Donnelly asserts a factual dispute exists as to the termination of the attorney-client relationship, he presented no evidence the parties treated their relationship as having survived the posttrial termination letter sent by Ayer. The statutes and case law cited by Donnelly do not support his assertion the relationship continued after October 13, 1983.
B
Donnelly further argues even if the attorney-client relationship did terminate, there is still a presumption of undue influence because Ayer continued to have power and authority over him resulting in the mutual release. He claims there was considerable evidence of extensive financial entanglement with Ayer and that Ayer used these entanglements to force him into the mutual release. Although Donnelly again correctly states the circumstances and law under which the presumption of undue influence arises, he presents no facts showing he fell prey to Ayer. At his deposition, *984 Donnelly himself admitted he signed the document freely and voluntarily. Moreover, the voluntary nature of the release was undisputed below. Indeed, Donnelly offered to withdraw the threat of malpractice if Ayer would pay him $10,000. Ayer counteroffered to pay $1,000 and to release any claims he might have for money advanced to Donnelly. Donnelly read the release, understood it and signed it. While there was perhaps far more personal and financial entanglement between Donnelly and Ayer than should be present in an attorney-client relationship, the record is devoid of evidence that Ayer used this entanglement to coerce an agreement with Donnelly.
C
Donnelly contends the release is invalid as a matter of law because it was obtained in contravention of the California Rules of Professional Conduct. However, rule 6-102 provides: “A member of the State Bar shall not attempt to exonerate himself from or limit his liability to his client for his personal malpractice. This rule shall not prevent a member of the State Bar from settling or defending a malpractice claim.” (Italics added.) Here, Ayer and Donnelly entered into an agreement to settle an existing malpractice claim after the attorney-client relationship had been terminated and Donnelly had consulted several other attorneys. Ayer proposed a settlement in response to Donnelly’s threat of a lawsuit and a demand of $10,000 from Ayer. Donnelly failed to show Ayer improperly attempted to exonerate himself in violation of rule 6-102.
D
Finally, Donnelly urges the trial court misapplied the law pertaining to summary judgment. The court was required to examine the facts presented to it under applicable rules of evidence in order to determine whether there were triable issues. Donnelly has made no showing the trial court failed to apply the proper test. Rather, the supporting documents and affidavit submitted by Donnelly were woefully inadequate. Donnelly did not submit his own affidavit, and the declaration submitted by his attorney is fraught with both legal conclusions and representations of which the declarant had no personal knowledge. (See Dugar v. Happy Tiger Records, Inc. (1974) 41 Cal.App.3d 811, 815 [116 Cal.Rptr. 412].) Documents appended to Donnelly’s points and authorities consist of police reports which are inadmissible (see Kramer v. Barnes (1963) 212 Cal.App.2d 440,446 [27 Cal.Rptr. 895]), irrelevant trial testimony of a witness to Donnelly’s original confrontation with the bus driver, attorney billing data which, again, is neither relevant nor properly authenticated, and an assortment of documents that are objectionable both as hearsay and as not being authenticated. (See Martin v. *985 Johnson (1979) 88 Cal.App.3d 595, 602 [151 Cal.Rptr. 816].) Contrary to Donnelly’s assertions, the court did not ignore issues of fact or improperly weigh the evidence. Summary judgment was proper.
Disposition
Judgment affirmed.
Kremer, P. J., and Staniforth, J., concurred.
Appellant’s petition for review by the Supreme Court was denied October 15, 1986.
Assigned by the Chairperson of the Judicial Council.
Apparently, Donnelly wanted Ayer to personally pay him the $10,000 Donnelly had turned down as a settlement offer at trial, an offer which at the time of trial Donnelly thought to be inadequate.
All statutory references are to the Code of Civil Procedure unless otherwise specified.
Cites, in this corpus
- Sheffield v. Eli Lilly & Co. Civ. 52344 · 1983-06-08
- Brown v. Bleiberg L.A. 31531 · 1982-09-27
- Sprecher v. Adamson Companies L.A. 31394 · 1981-12-07
- Martin v. Johnson Civ. 19258 · 1979-01-19
- Dugar v. Happy Tiger Records, Inc. Civ. 42790 · 1974-09-17
- Kramer v. Barnes Civ. 20613 · 1963-01-29
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