1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CHRISTOPHER CHAMBERLIN, Case No. 19-cv-08243-JCS

8 Plaintiff,

ORDER REGARDING PUNITIVE

9 v. DAMAGES AND MOTION FOR

RECONSIDERATION

10 HARTOG, BAER & HAND, APC, et al., Re: Dkt. Nos. 125, 131 Defendants. 11

12 I. INTRODUCTION 13 Plaintiff Christopher Chamberlin, pro se, brought this action asserting negligent legal 14 malpractice (and other claims that have since been dismissed) against his former attorneys in a 15 probate matter concerning his late mother’s estate. The remaining defendants at this point in the 16 case are David Baer and Hartog, Baer & Hand, APC (“HBH”). The Court previously granted 17 summary judgment in Chamberlin’s favor with respect to a $2,831.91 award of costs against him, 18 and granted summary judgment for Defendants on all other aspects of Chamberlin’s claim except 19 for punitive damages, which they failed to address in their motion. See generally Order re Mots. 20 for Summ. J. & Mot. to Exclude Expert Test. (“MSJ Order,” dkt. 125).1 The Court ordered 21 Chamberlin to show cause why summary judgment should not be entered against him sua sponte 22 under Rule 56(f) as to punitive damages. Id. at 33–34. The Court also granted Chamberlin leave 23 to file a motion for reconsideration addressing whether the Court erred in treating the likely 24 outcome of an appeal in the probate matter as a question of fact requiring expert testimony, and if 25 so, how that affects the outcome of the previous motion. 26

27 1 Chamberlin v. Hartog, Baer & Hand, APC, No. 19-cv-08243-JCS, 2022 WL 526157 (N.D. Cal. 1 The Court finds these matters suitable for resolution without oral argument and VACATES 2 the law and motion hearings previously set for May 13, 2022. The case management conference 3 set for the same time remains on calendar. 4 For the reasons discussed below, Chamberlin’s motion for reconsider is DENIED, and the 5 Court GRANTS summary judgment sua sponte under Rule 56(f) that Chamberlin cannot recover 6 punitive damages on his negligent malpractice claim. Chamberlin’s malpractice claim is therefore 7 fully adjudicated, and Defendants’ counterclaims against Chamberlin are the only remaining 8 issues for trial.2 9 II. BACKGROUND 10 A. Factual Overview and Previous Orders 11 This order assumes the parties’ familiarity with the facts and history of the case, which are 12 set forth in more detail in the Court’s previous order on the parties’ motions for summary 13 judgment. In brief, Chamberlin filed a petition to remove his uncle Michael Levin as executor of 14 Chamberlin’s mother’s estate. The probate court sustained a demurrer against Chamberlin’s 15 petition, dismissing it without leave to amend. Defendants, representing Chamberlin, assured him 16 that the demurrer order was not appealable until judgment was entered. Defendants were wrong. 17 When they later appealed, the appellate court dismissed the appeal as untimely with respect to the 18 order sustaining the demurrer, because it served in effect as a final denial of a request to remove 19 an executor, which is an appealable order under the California Probate Code. 20 After excluding most of the opinions offered by Defendants’ expert witness, this Court 21 held that Chamberlin was entitled to summary adjudication that Defendants breached their duty of 22 care in failing to file a timely appeal of the demurrer order. See MSJ Order at 17–22, 24–27. The 23 Court found a sufficiently clear causal connection between the untimely appeal and a $2,831.91 24 award of costs against Chamberlin to grant summary judgment as to those limited damages. Id. at 25 29–31. The Court otherwise granted summary judgment for Defendants on this claim, holding 26 that Chamberlin did not provide sufficient evidence to show any breach of duty besides the 27 1 untimely appeal and Defendants’ failure to obtain a transcript of the demurrer hearing, id at 24–25, 2 or to show that any damages besides the award of costs were caused by the untimeliness of the 3 appeal (or the failure to obtain a transcript), id. at 31–32. The holding that Chamberlin had not 4 shown causation as to other forms of damages, which is the subject of Chamberlin’s present 5 motion for reconsideration, was based on Chamberlin’s failure to offer expert testimony on that 6 subject and the Court’s conclusion that “a jury of nonlawyers would lack the experience and 7 training to assess whether the Court of Appeal would more likely than not have reversed [the 8 probate court’s] order sustaining the demurrer if the appellate court had reached the merits of the 9 appeal.” Id. at 32. The Court also provided notice under Rule 56(f) of the Federal Rules of Civil 10 Procedure that it was considering granting summary judgment sua sponte that Chamberlin could 11 not recover punitive damages. Id. at 34. 12 Later, the Court granted Chamberlin leave to file a motion for reconsideration as to 13 whether the hypothetical outcome of a timely appeal is a question of fact for resolution by the jury 14 (as assumed in the previous order) or a question of law to be resolved by the Court. The Court 15 held that while “Chamberlin did not clearly raise this argument in his summary judgment 16 briefing,” the Court was “nevertheless inclined to allow full briefing to ensure that the summary 17 judgment order did not rest on a fundamental error of law.” Order Granting Mot. for Leave to File 18 (dkt. 130). The Court instructed Chamberlin to address:

19 whether California law calls for deciding the likely outcome of the appeal (if timely filed) as a question of law rather than a question of 20 fact, and if so, how that alters the outcome of the parties’ motions for summary judgment—including, for example, questions of whether he 21 was likely as a matter of law to prevail on the appeal, and whether he could prevail at trial (or is entitled to summary judgment in his favor) 22 on any further steps in the chain of causation necessary to show harm as a result of Defendants’ error. 23 24 Id. 25 B. Arguments Regarding Reconsideration 26 Chamberlin contends that the likely outcome of an appeal is a matter for a malpractice 27 court to decide as a question of law and cannot be submitted to a jury. Mot. for Reconsideration 1 and the facts alleged in his petition (as well as facts he contends are supported elsewhere in the 2 record of this case). Id. at 10–14. He contends that the brief Defendants filed on his behalf 3 opposing the demurrer “provides a legal guide for this Court to consider when judging how the 4 Court of Appeal would have ruled if Defendants had filed a timely appeal.” Id. at 15. He also 5 notes that that Defendants were surprised by the ruling and considered it to be incorrect, id. at 15– 6 16, and acknowledges that Levin filed a declaration by Chamberlin’s mother’s former therapist 7 “purporting to tell the court that [his mother] thought [Chamberlin] and his wife were dishonest,” 8 which Chamberlin contends was not true, id. at 14. According to Chamberlin, the appellate court 9 would likely have reversed the order sustaining the demurrer if it had engaged in a de novo review 10 on a timely appeal, id. at 16, and he would have been able to disqualify the probate judge on 11 remand, resulting in more favorable rulings on a host of issues including but not limited to Levin’s 12 removal as executor, id. at 17–21. 13 Defendants contend that the Court’s previous order was correct because causation in legal 14 malpractice cases is ordinarily a question of fact, although they acknowledge that “juries do not 15 decide questions of law.” Opp’n to Reconsideration (dkt. 136) at 6–8. Defendants frame the 16 relevant question as “whether a determination of the underlying case ‘hinges on an issue of law,’” 17 id. at 8, with no citation for that quoted phrase, which they seem to have drawn from In re Alan 18 Deatley Litig., No. CV-06-0278-JLQ, 2008 WL 4153675, at *8 (E.D. Wash. Aug. 29, 2008), a 19 malpractice case applying Washington law. Sidestepping the question of whether the likely 20 outcome of the appeal (if it had been timely filed) is such an issue, they contend that the likely 21 outcome of the probate case (if the appeal had been successful) is not. Opp’n to Reconsideration 22 at 9–10. Defendants argue that California law grants probate courts broad discretion as to whether 23 to remove an executor, guided by the principle that the testator’s choice of executor should not 24 lightly be set aside. Id. at 10–11. They contend that the appellate court likely would not have 25 disturbed the probate court’s decision not to remove the executor, id. at 12–13, and regardless, 26 Chamberlin has not offered sufficient evidence to show that any other aspect of the probate case 27 would have resolved differently if the appellate court had reversed the order sustaining the 1 In his reply, Chamberlin reiterates his position that the hypothetical outcome of questions 2 of law in the underlying case are to be determined by the court rather than by the jury in a 3 malpractice case. Reply re Reconsideration (dkt. 139) at 8. He contends that the appellate court 4 would have reviewed the order sustaining the demurrer de novo, and would have reversed because 5 his petition sufficiently stated a cause of action for Levin’s removal as executor. Id. at 9. He also 6 argues that “this Court should find that an objective, unbiased judge, familiar with the Probate 7 Code and procedure, would have suspended Levin’s powers and would have removed him after a 8 hearing with testimony and evidence revealing” various facts Chamberlin discovered in this case. 9 Id. at 9–11. He contends that he has sufficiently shown harm proximately caused by Defendants’ 10 negligence and that the amount of his damages should be determined by a jury. Id. at 11–12. 11 C. Arguments Regarding Punitive Damages 12 Chamberlin argues that he should be permitted to pursue punitive damage for Defendants’ 13 malpractice because Defendants’ failure to research whether the demurrer order was immediately 14 appealable meets the standard of willful misconduct described in Bains v. Western Pacific 15 Railroad Co., 56 Cal. App. 3d 902 (1976): “(1) actual or constructive knowledge of the peril to be 16 apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a 17 possible, result of the danger, and (3) conscious failure to act to avoid the peril.” Bains, 56 Cal. 18 App. 3d at 905; see Pl.’s Br. re Punitive Damages (dkt. 132) at 7. He notes that Baer wrote to a 19 colleague that he was “99% sure” that a separate judgment was needed to appeal but would “check 20 in the morning,” but there is no evidence that Baer actually followed up on that issue. Pl.’s Br. re 21 Punitive Damages at 8. Chamberlin contends that failure to conduct research can be relevant to 22 show “malice” by an attorney, citing malicious prosecution cases. Id. at 10 (citing Lanz v. 23 Goldstone, 243 Cal. App. 4th 441, 468 (2015); Sheldon Appel Co. v. Albert & Oliker, 47 Cal. 3d 24 863, 868 (1989)). He argues that Defendants’ failure to disclose their purported deficiencies 25 constitutes oppression and fraud. Id. at 11–12. In doing so, he renews arguments the Court has 26 previously rejected regarding intentional concealment of a conflict of interest due to former 27 defendant Hartog’s attenuated familial-by-marriage relationship with Levin. See id. at 4, 11. 1 negligence, which is his only surviving claim in the case. Defs.’ Br. re Punitive Damages at 4–6. 2 They contend that Chamberlin has not presented “clear and convincing evidence that any of the 3 Defendants engaged in intentional conduct against him with the requisite state of mind.” Id. at 6. 4 Defendants also offer a new declaration by Baer explaining his conduct, see id. at 9–10; Baer 5 Decl. (dkt. 137-1), to which Chamberlin objects as untimely, see dkt. 138. The Court does not 6 rely on that declaration. 7 III. ANALYSIS 8 A. Legal Standard for Reconsideration 9 Unless a court specifically directs entry of final judgment on some portion of the case, 10 “any order or other decision, however designated, that adjudicates fewer than all the claims or the 11 rights and liabilities of fewer than all the parties does not end the action as to any of the claims or 12 parties and may be revised at any time before the entry of a judgment.” Fed. R. Civ. P. 54(b). “A 13 motion for reconsideration should not be granted, absent highly unusual circumstances, unless the 14 district court is presented with newly discovered evidence, committed clear error, or if there is an 15 intervening change in the controlling law.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH 16 & Co., 571 F.3d 873, 880 (9th Cir. 2009) (cleaned up). 17 As noted above, the Court granted Chamberlin leave to file his motion for reconsideration 18 based on concern that the Court may have committed clear error in treating what should have been 19 a question of law as a question of fact requiring expert testimony. 20 B. Legal Standard for Summary Judgment 21 Summary judgment on a claim or defense is appropriate “if the movant shows that there is 22 no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 23 law.” Fed. R. Civ. P. 56(a). In order to prevail, a party moving for summary judgment must show 24 the absence of a genuine issue of material fact with respect to an essential element of the non- 25 moving party’s claim, or to a defense on which the non-moving party will bear the burden of 26 persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 27 Once the movant has made this showing, the burden then shifts to the party opposing 1 (citation omitted); see also Fed. R. Civ. P. 56(c)(1) (“A party asserting that a fact . . . is genuinely 2 disputed must support the assertion by . . . citing to particular parts of materials in the record 3 . . . .”). “[T]he inquiry involved in a ruling on a motion for summary judgment . . . implicates the 4 substantive evidentiary standard of proof that would apply at the trial on the merits.” Anderson v. 5 Liberty Lobby Inc., 477 U.S. 242, 252 (1986). The non-moving party has the burden of 6 identifying, with reasonable particularity, the evidence that precludes summary judgment. Keenan 7 v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). Thus, it is not the task of the court “‘to scour the 8 record in search of a genuine issue of triable fact.’” Id. (citation omitted); see Carmen v. S.F. 9 Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); Fed. R. Civ. P. 56(c)(3). 10 A party need not present evidence to support or oppose a motion for summary judgment in 11 a form that would be admissible at trial, but the contents of the parties’ evidence must be amenable 12 to presentation in an admissible form. See Fraser v. Goodale, 342 F.3d 1032, 1036–37 (9th Cir. 13 2003). Neither conclusory, speculative testimony in affidavits nor arguments in moving papers 14 are sufficient to raise genuine issues of fact and defeat summary judgment. Thornhill Publ’g Co., 15 Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). On summary judgment, the court draws all 16 reasonable factual inferences in favor of the non-movant, Scott v. Harris, 550 U.S. 372, 378 17 (2007), but where a rational trier of fact could not find for the non-moving party based on the 18 record as a whole, there is no “genuine issue for trial” and summary judgment is appropriate. 19 Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). 20 Under Rule 56(f) of the Federal Rules of Civil Procedure, a Court may “(1) grant summary 21 judgment for a nonmovant; (2) grant the motion on grounds not raised by a party; or (3) consider 22 summary judgment on its own after identifying for the parties material facts that may not be 23 genuinely in dispute,” so long as the Court first “giv[es] notice and a reasonable time to respond.” 24 C. Chamberlin Is Not Entitled to Reconsideration of His Limited Damages 25 Although the Court’s previous order did not address the issue with the depth it may have 26 deserved, Chamberlin has not shown that the Court erred in treating the hypothetical outcome of a 27 timely appeal as a question for the jury, requiring proof through expert testimony. 1 the jury to decide in a malpractice action. That position finds support in California caselaw. See, 2 e.g., Piscitelli v. Friedenberg, 87 Cal. App. 4th 953, 970 (2001) (holding that the likely outcome 3 of a dispute that would have been resolved by arbitrators as finders of fact is for a jury to decide in 4 a malpractice case, and finding that “conclusion . . . consistent with numerous out-of-state 5 authorities holding that in legal malpractice cases, whether a court or jury decides the underlying 6 case-within-a-case does not turn on the identity or expertise of the trier of fact, but whether the 7 issues are predominately questions of fact or law”). Piscitelli cited with approval a Michigan 8 decision holding that “whether an appeal lost because of an attorney’s negligence would have 9 succeeded if properly pursued is an issue for the court because the resolution of the underlying 10 appeal originally would have rested on a decision of law.” Id. (summarizing Charles Reinhart Co. 11 v. Winiemko, 444 Mich. 579, 513 (1994)). 12 Typically, appellate review of an order on a demurrer turns on the legal question of 13 whether the facts alleged support a claim, as well as the question of whether the trial court abused 14 its discretion in denying leave to amend:

15 We employ two separate standards of review when considering a trial court order sustaining a demurrer without leave to amend. We first 16 review the complaint de novo to determine whether it contains facts sufficient to state a cause of action under any legal theory. We treat 17 the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also 18 consider matters which may be judicially noticed. We affirm if any ground offered in support of the demurrer was well taken but find 19 error if the plaintiff has stated a cause of action under any possible legal theory. We are not bound by the trial court's stated reasons, if 20 any, supporting its ruling; we review the ruling, not its rationale.

21 If we determine the facts as pleaded do not state a cause of action, we then consider whether the court abused its discretion in denying leave 22 to amend the complaint. It is an abuse of discretion for the trial court to sustain a demurrer without leave to amend if the plaintiff 23 demonstrates a reasonable possibility that the defect can be cured by amendment. 24 25 Est. of Dito, 198 Cal. App. 4th 791, 800–01 (2011) (cleaned up). 26 Here, however, the appellate court made clear that it considered the demurrer order to be 27 effectively “[a]n order denying a request to remove an executor.” Defs.’ Request for Judicial 1 under an abuse-of-discretion standard:

2 The probate court’s decision removing or declining to remove a personal representative is reviewed for abuse of discretion. To the 3 probate court is given, in the first instance, the supervision and protection of estates of deceased persons, with power, in the exercise 4 of that supervision, to remove an executor when, in its discretion, such step is necessary for the protection of the estate; and that power is not 5 to be interfered with by the appellate court, unless there has been a clear abuse of that discretion. 6 The abuse of discretion standard applies even when the evidence is of 7 such a nature that reasonable minds would possibly differ regarding the facts. The test is not whether we would have made a different 8 decision had the matter been submitted to us in the first instance. Rather, the discretion is that of the trial court, and we will only 9 interfere with its ruling if we find that under all the evidence, viewed most favorably in support of the trial court's action, no judge 10 reasonably could have reached the challenged result.

11 As with all factual determinations, the probate court’s findings of fact underlying its discretionary decision to remove an administrator are 12 reviewed for substantial evidence. On appeal, our authority begins and ends with a determination of whether, on the entire record, there 13 is any substantial evidence, contradicted or uncontradicted, which will support the judgment. Therefore, we must consider all of the 14 evidence in the light most favorable to the prevailing party, giving that party the benefit of every reasonable inference from the evidence 15 tending to establish the correctness of the trial court's decision, and resolving conflicts in support of the trial court's decision. 16 It is well settled that all presumptions and intendments are in favor of 17 supporting the judgment or order appealed from, and that the appellant has the burden of showing reversible error, and in the 18 absence of such showing, the judgment or order appealed from will be affirmed. If the decision of a lower court is correct on any theory 19 of law applicable to the case, the judgment or order will be affirmed regardless of the correctness of the grounds upon which the lower 20 court reached its conclusion. 21 Est. of Sapp, 36 Cal. App. 5th 86, 103–04 (2019). 22 That standard does not implicate pure issues of law, but instead calls on the appellate court 23 to review the manner in which the probate court exercised its discretion. The likely outcome of 24 such issues of judicial discretion are normally for a jury to decide in a subsequent malpractice 25 action. If a plaintiff fails to offer competent expert testimony “taking into account all of the 26 relevant statutory factors or the broad discretion afforded the trial court,” summary judgment for 27 the defense is appropriate. Namikas v. Miller, 225 Cal. App. 4th 1574, 1586 (2014) (affirming 1 discretionary judicial decision to determine spousal support). Chamberlin needed to offer expert 2 testimony here as to the likely outcome of the appeal, and failed to do so. The Court declines to 3 alter the substance of its previous decision. 4 Even if the likely outcome of the appeal were for the Court to decide as a matter of law, 5 Chamberlin has not met his burden of persuasion to show that the probate court’s order on the 6 demurrer would likely have been reversed if the appeal had been timely. The probate court was 7 presented with evidence that Chamberlin’s mother distrusted him and specifically chose not to list 8 him as an alternative executor. Whether that evidence was accurate is not the question here. The 9 probate court had broad discretion in determining how to weigh the evidence before it and whether 10 to remove Levin as executor. The probate court could reasonably have determined that leaving 11 Levin in place as executor best served the intent of the deceased, and that any issue of 12 mismanagement was best addressed through a subsequent accounting. See, e.g., In re 13 Chadbourne’s Est., 15 Cal. App. 363, 367 (1911) (“The nomination of the executor is evidence of 14 the confidence reposed in him by the testator, and the deliberate purpose and desire thus solemnly 15 expressed as to the administration should not be thwarted, unless the plain provisions of the law or 16 the interests of justice demand it.”). To the extend Chamberlin believes he should have been 17 entitled to leave to amend, he neither then nor now has “demonstrate[d] a reasonable possibility 18 that [any] defect [could have been] cured by amendment.” See Est. of Dito, 198 Cal. App. 4th at 19 801. 20 Moreover, even if Chamberlin could show that the demurrer order would likely have been 21 reversed, he has not shown that outcome of the probate proceedings would have differed in any 22 practical respect. His assertion that the probate judge would have been removed for bias is 23 entirely speculative and cites no legal authority beyond the general statute prohibiting judicial 24 prejudice. Mot. for Reconsideration at 17 (citing Cal. Civ. Proc. Code § 170.6). The reversal of a 25 decision on appeal does not itself show bias by the judge, and there is no reason to think a motion 26 to disqualify the probate judge after such a result would have been any more successful than the 27 one Chamberlin actually filed, which was denied. See Defs.’ RJN Ex. 31. Regardless, all of 1 to recover as damages, rest on subsequent discretionary decisions by the probate court—primarily 2 whether, if Chamberlin had been permitted to proceed on his petition, Levin would actually have 3 been removed as executor. Under Namikas, 225 Cal. App. 4th at 1586, Chamberlin was required 4 to show a likelihood of success on those issues through competent expert testimony, and failed to 5 do so. 6 Accordingly, Chamberlin’s motion for reconsideration is DENIED. 7 D. Punitive Damages 8 “Under California law, a plaintiff may recover punitive damages in connection with a non- 9 contractual claim if she establishes by clear and convincing evidence that the defendant is guilty of 10 (1) fraud, (2) oppression, or (3) malice.” Doe v. Uber Techs., Inc., No. 19-cv-03310-JSC, 2019 11 WL 6251189, at *8 (N.D. Cal. Nov. 22, 2019) (citing Cal. Civ. Code § 3294(a)).

12 Punitive damages are properly awarded where defendants are guilty of oppression, fraud or malice. The defendant “must act with the 13 intent to vex, injure or annoy, or with a conscious disregard of the plaintiff’s rights. Where nonintentional torts involve conduct 14 performed without intent to harm, punitive damages may be assessed when the conduct constitutes conscious disregard of the rights or 15 safety of others. A conscious disregard of the safety of others may thus constitute malice within the meaning of section 3294 of the Civil 16 Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the 17 probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences. Consequently, to 18 establish malice, it is not sufficient to show only that the defendant’s conduct was negligent, grossly negligent or even reckless. 19 20 Bell v. Sharp Cabrillo Hosp., 212 Cal. App. 3d 1034, 1043–44 (1989) (cleaned up). 21 The evidence here shows nothing more than that Defendants made a mistake. Even if it 22 was an obvious mistake, which is far from clear, gross negligence cannot support punitive 23 damages. Even Baer’s email that he intended to confirm his belief as to the deadline to appeal 24 does not show the willful disregard necessary to pursue punitive damages, because by indicating 25 that Baer was “99% sure” he was correct, it does not show any recognition of “probable 26 dangerous consequences” if he did not follow up with further research. Cf. id. at 1044. Instead, 27 the email indicates that Baer was highly confident (despite being incorrect) that his course of ] prosecution are inapposite, and the Court finds no basis for punitive damages in the record of this 2 || case. Summary judgment is therefore GRANTED sua sponte that Chamberlin cannot obtain 3 || punitive damages. 4 || IV. CONCLUSION 5 For the reasons discussed above, Chamberlin’s motion for reconsideration is DENIED, and 6 || the Court sua sponte GRANTS summary judgment for Defendants that Chamberlin cannot recover 7 || punitive damages. 8 IT IS SO ORDERED. 9 || Dated: May 12, 2022

J PH C. SPERO

11 ief Magistrate Judge

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