Vorzimer v. Berkowitz CA2/8

Filed 6/9/21 Vorzimer v. Berkowitz CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying
on opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

JOHN VORZIMER et al., B304603

Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC670628)
v.

STEVEN BERKOWITZ et al.,

Defendants and Respondents.

APPEAL from judgments of the Superior Court of Los
Angeles County, Stephanie M. Bowick, Judge. Affirmed.

Parker Mills, David B. Parker and Steven S. Wang for
Plaintiffs and Appellants.

Wingert Grebine Brubaker & Juskie, Andrew A. Servais,
Colin H. Walshok and Amy L. Simonson for Defendants and
Respondents Steven Berkowitz, Law Offices of Steven Berkowitz,
A.P.C., The Berkowitz Law Group, P.C., and The Kadish Law
Group, P.C.
 Murphy, Pearson, Bradley & Feeney, James A. Murphy,
Kristin L. Iversen and Joseph S. Leveroni for Defendant and
Respondent Glassman, Browning, Salesman & Jacobs, Inc.

_________________________

This is an action for legal malpractice. Appellants John
and Samantha Vorzimer (Vorzimers) were clients of respondents
Steven Berkowitz and his two successor law firms (Berkowitz).
As with all such actions, we start with the underlying litigation,
which itself consists of two lawsuits. In a nutshell, the Vorzimers
bought Barbara Behm’s property at a foreclosure sale. Behm
turned around and sued the Vorzimers and her own lender,
Cervenka & Lukes Mortgage Corporation (C&L), alleging a
conspiracy among them to induce her to take out a loan on terms
they knew would force her into foreclosure so the Vorzimers could
buy her property. The conspiracy action went to trial, resulting
in a $30 million verdict against the Vorzimers. Post-verdict, the
parties settled the action. Behm then filed a second lawsuit,
alleging the Vorzimers had breached the terms of the settlement
agreement. The Vorzimers, in turn, sued Berkowitz, their
attorney of record. The Vorzimers’ First Amended Complaint
alleges two instances of malpractice: 1) negligence in the defense
of Behm’s original conspiracy lawsuit brought against them and
lender C&L; and 2) negligence in drafting the settlement
agreement for that litigation, which the Vorzimers contend made
them vulnerable to the second lawsuit for breach of the
settlement agreement. The Vorzimers appeal from the judgment
of dismissal entered after the trial court granted summary
judgment in favor of respondents Steven Berkowitz and the
Kadish Law Group, and appeal from the stipulated judgment

2
entered in favor of respondent Glassman, Browning, Saltsman
and Jacobs, Inc.1
Appellants contend the trial court erroneously found the
legal malpractice action was a “settle and sue” action and applied
an incorrect, higher standard of proof to the Vorzimers as
plaintiffs. They also contend they raised triable issues of
material fact as to whether 1) “but for” Berkowitz’s negligence
they would have obtained a more favorable result in the original
underlying lawsuit; 2) the post-verdict settlement was an effort to
mitigate damages; and 3) Berkowitz’s handling of the post-verdict
settlement agreement resulted in Behm’s second lawsuit against
them. Finding no error, we affirm the judgments.

1 Steven Berkowitz worked with the Glassman firm and then
before the trial of the underlying lawsuit moved to the Kadish
Law Group. The Glassman firm was never listed as attorney of
record for appellants in this matter and did not join in the motion
for summary judgment brought by Steven Berkowitz and the
Kadish Law Group. Following the trial court’s grant of summary
judgment in favor of Berkowitz and the Kadish Law Group, the
Glassman firm announced its intention to move for judgment as a
matter of law based on the trial court’s ruling. The Vorzimers
and the Glassman firm then stipulated judgment should be
entered in favor of the Glassman firm based solely on the trial
court’s findings of fact and conclusions of law. The parties
stipulated the Vorzimers retained the right to appeal from those
findings of fact and conclusions of law. Our decision affirming
the judgment entered following the grant of summary judgment
is necessarily an affirmance of the judgment on stipulation as
well.

3
 BACKGROUND
In 2014, Barbara Behm entered into an agreement with
C&L for a $1.4 million cash loan, secured by Behm’s property on
Edgeware Road in Los Angeles County. The loan terms set an
interest rate of 9.99 percent; if a payment was late, the interest
rate increased to 24.99 percent. This loan was funded by C&L’s
investors.
Behm missed payments on the loan and the interest rate
rose. In September 2014, C&L recorded a notice of default on the
Edgeware property. Simultaneously, John Lukes Jr. of C&L
approached John Vorzimer2 and suggested he buy the loan note
or buy the property itself from C&L after C&L took it back.
Vorzimer had a longstanding relationship with C&L.
In November 2014, the Vorzimers and Lukes Jr. visited the
Edgeware property and met with Behm. Behm believed the
purpose of the visit was to discuss lending options so she could
keep her home.
After the visit, Lukes Jr. proposed that appellants invest
$95,000 in the loan. In returned, appellants could expect
repayment of the principal with interest, with the possibility of
purchasing the property after foreclosure by buying the loan note
for $1.632 million, “assuming no bidders.” The value of the
property was estimated at $1.8 million to $2.5 million.
In December 2014, appellants and Lukes Jr. entered into a
“private” agreement, in which Lukes Jr. offered appellants an
“off-market” opportunity to buy the property and appellants
agreed to pay him a commission if they obtained the property
through the foreclosure sale. The amount of the commission was

2 Hereafter “Vorzimer” refers to John Vorzimer only.

4
$1.825 million minus the actual purchase price of the property.
As part of the agreement, the note on the Behm loan was
“assigned” to appellants. Although two attorneys pointed out to
Vorzimer that this transaction had risks for him, he entered into
the agreement anyway.
Behm declared bankruptcy to stay foreclosure on the
Edgeware property. Appellants paid C&L’s attorneys to
challenge the bankruptcy stay. Their challenge was successful.
In April 2015, the foreclosure sale went forward and appellants
obtained title to the property.
After appellants obtained title, they hired Berkowitz to file
an unlawful detainer action against Behm. In November 2015,
the action went to trial and the court ruled in favor of appellants
and Behm was ordered to leave the property.
On April 8, 2015, Behm had filed a lawsuit against C&L.
In May 2015, she added appellants as Doe defendants. She
alleged C&L had violated numerous provisions of state and
federal lending laws, including California’s predatory lending
law. She further alleged appellants conspired with C&L to place
her into a loan she could not repay, assess thousands of dollars in
late fees, and then foreclose on the property and sell it for a
profit. This is the conspiracy lawsuit.
In December 2015, Berkowitz, as Vorzimers’ counsel in the
conspiracy lawsuit, sent an email to Behm’s attorney, asserting
the lawsuit lacked any basis in law or fact and was intended to
delay Behm’s eviction from the Edgeware property. Berkowitz
pointed out that the court in the unlawful detainer action had
found no wrong-doing by appellants and had ruled in their favor.
Behm’s attorney did not agree with this assessment.

5
 Berkowitz advised his client Vorzimer to file a cross-
complaint against C&L for indemnity. Vorzimer declined
because he had an ongoing business relationship with C&L.
Throughout the early stages of the conspiracy lawsuit,
Berkowitz sought more information about the transaction from
Vorzimer and C&L, but none was forthcoming. Berkowitz
continued to recommend that the Vorzimers seek indemnification
from C&L, if only to distance them from C&L and the conspiracy
allegations. After his initial assessment, Berkowitz expressly
advised Vorzimer that he faced liability in the conspiracy lawsuit.
Berkowitz specifically told Vorzimer he could be liable even if he
did not “completely participate” in the alleged wrongdoing, but
simply provided assistance to C&L in executing its scheme.
The parties discussed settlement before Behm’s lawsuit
went to trial. Behm was seeking in excess of $1 million and
Vorzimer admitted he was not in a position financially to settle
the lawsuit for the amount Behm wanted.
Trial began in October 2016 and lasted 15 days. Vorzimer,
Lukes Jr., and Lukes Sr. gave somewhat inconsistent accounts of
their interactions with Behm. Vorzimer testified he did not
discuss purchasing the note or the property or loaning money
directly to Behm. He never contacted Behm to tell her he had
become the owner of the note. He was unaware of any steps
taken to inform the Bankruptcy Court that appellants were the
parties seeking relief, not C&L. He did not attend the foreclosure
sale.
Lukes Jr. testified that the purpose of the visit to Behm’s
home was to sell the loan to appellants, get them to execute a
second trust deed, or persuade them to buy the property outright.
Vorzimer rejected Behm’s suggestion that he buy the property

6
but give Behm a buy-back option. Lukes Jr. did not tell Behm he
had sold the note to appellants in December 2014. Lukes Sr.
testified C&L did not make loans on owner-occupied property;
Behm’s loan application, however, said the property was owner-
occupied. He testified the purpose of the December visit was to
see if Vorzimer could offer Behm a second loan to solve her
foreclosure problems. Ultimately, however, the plan was to sell
the Edgeware property to appellants.
At the conclusion of the liability portion of the trial, the
jury awarded Behm about $5 million in economic damages and
$25 million in non-economic damages, for a total award of
$30,581,000. The jury found appellants participated in a
conspiracy with C&L to commit a concealment and an intentional
misrepresentation. The jury found appellants and C&L acted
with malice, fraud and oppression.
Before the punitive damages phase of the trial, the parties
settled the lawsuit. C&L agreed to pay Behm $6.4 million.
Appellants agreed to convey title to the Edgeware property back
to Behm and waive a $50,000 judgment they had obtained
against Behm in the unlawful detainer action. In the course of
working out the settlement, Berkowitz warned appellants not to
remove any fixtures or attachments from the property.
Vorzimer then threatened to sue C&L for his losses in the
Edgeware transaction, which he estimated was in seven figures.
Appellants subsequently settled with C&L without Berkowitz’s
involvement. The parties mutually released all claims against
each other with no exchange of consideration. Vorzimer stated he
entered into the agreement because he was involved in several
outstanding deals with C&L and C&L could not complete the
deals unless Vorzimer signed the agreement.

7
 C&L then brought a malpractice action against counsel of
record in the conspiracy lawsuit. As it happened, Lukes Jr. and
Vorzimer discussed an arrangement whereby C&L would finance
a legal malpractice action by appellants against Berkowitz in
exchange for a share of any recovery. In July 2017, the
Vorzimers brought this action for legal malpractice against
Berkowitz.
In granting summary judgment, the trial court overruled
all of the Vorzimers’ evidentiary objections to Berkowitz’s
evidence and found that Berkowitz had met the “burden of proof
by setting forth evidence that demonstrates Plaintiffs would not
have received a better result ‘but for’ any act or omission by
[Berkowitz] in the underlying litigation.” The court then
explained: “As an initial matter, Plaintiffs have not complied
with the requirement for separate statements under Code of Civil
Procedure section 437c, subdivision (b)(3), with regards to the
responses to [Berkowitz’s] undisputed facts. . . . Plaintiffs have
included the response ‘Disputed’ to various statements but have
only indicated that the statements is ‘[n]ot supported by
admissible evidence. See Evidentiary Objections filed
concurrently herewith.’ This is not a proper response to
Defendants’ separate statement because a plaintiff in opposition
must include a ‘reference to the supporting evidence’ that gives
rise to a disputed material fact.” The court noted: “Defendants’
UMF [Undisputed Material Fact] No. 6 is the only statement for
which Plaintiffs have complied” but that plaintiffs’ evidentiary
offering did not create a disputed issue of fact. “Therefore, the
court finds that Plaintiffs do not dispute any of Defendants’
undisputed material facts that are set forth in Defendants’
separate statement.”

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 The trial court continued: “Since none of Defendants’ facts
are in dispute (see discussion above), Plaintiffs have conceded,
among other facts, that 1) Plaintiffs were not in a position to
settle the Behm Lawsuit prior to the jury’s rendering of a special
verdict; 2) Plaintiffs chose not to bring a cross-complaint against
C&L during the Behm Litigation; 3) after the jury’s $30.85
million special verdict and before the punitive damages stage of
the Behm Lawsuit, Plaintiffs [] settled the Behm Lawsuit for no
consideration and transferred the Edgeware Property to Behm;
and 4) Plaintiffs could have sued C&L for indemnity thereafter,
but chose not to and instead settled any potential indemnity
claims against C&L without the assistance of Defendants. These
facts, among the others discussed above, indicate that Plaintiffs
cannot show that they would have obtained a better outcome of
the Behm Lawsuit ‘but for’ Defendants’ alleged negligent
conduct.”

DISCUSSION
We review de novo the trial court’s order granting
summary judgment. (Jacks v. City of Santa Barbara (2017)
3 Cal.5th 248, 273.) Summary judgment is appropriate “if all the
papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)3 To
prevail on a summary judgment motion, a defendant must
demonstrate the plaintiff’s cause of action cannot be established
or that a complete defense exists. (Id., subds. (o), (p); Bardin v.

3 Further undesignated statutory references are to the Code
of Civil Procedure.

9
Lockheed Aeronautical Systems Co. (1999) 70 Cal.App.4th 494,
499–500.)
Procedurally, the moving party must file “a separate
statement setting forth plainly and concisely all material facts
that the moving party contends are undisputed. Each of the
material facts stated shall be followed by a reference to the
supporting evidence.” (§ 437c, subd. (b)(1).) Where, as here, the
moving party meets his or her burden of showing that one or
more elements of the cause of action cannot be established, the
burden shifts to the plaintiff to show that a triable issue of one or
more material facts exists as to that cause. Section 437c,
subdivision (b)(3) sets forth the procedure for such a showing:
“The opposition papers shall include a separate statement that
responds to each of the material facts contended by the moving
party to be undisputed, indicating if the opposing party agrees or
disagrees that those facts are undisputed. The statement also
shall set forth plainly and concisely any other material facts the
opposing party contends are disputed. Each material fact
contended by the opposing party to be disputed shall be followed
by a reference to the supporting evidence. Failure to comply with
this requirement of a separate statement may constitute a
sufficient ground, in the court's discretion, for granting the
motion.” (Id., subd. (b)(3).)
On appeal, we view the evidence in the light most
favorable to the nonmoving party and strictly scrutinize the
evidence offered by the moving party. (See Kelly v. Stamps.com
Inc. (2005) 135 Cal.App.4th 1088, 1098.)
To prevail on a legal malpractice claim, a plaintiff “must
prove four elements: ‘(1) the duty of the attorney to use such
skill, prudence, and diligence as members of his or her profession

10
commonly possess and exercise; (2) a breach of that duty; (3) a
proximate causal connection between the breach and the
resulting injury; and (4) actual loss or damage resulting from the
attorney’s negligence.’ ” (Namikas v. Miller (2014)
225 Cal.App.4th 1574, 1581.) “ ‘[T]he elements of causation and
damage are particularly closely linked.’ [Citation.] The plaintiff
must prove, by a preponderance of the evidence, that but for the
attorney’s negligent acts or omissions, he would have obtained a
more favorable judgment or settlement in the action in which the
malpractice allegedly occurred.” (Id. at p. 1582; see Viner v.
Sweet (2003) 30 Cal.4th 1232, 1241.).)

A. The Trial Court Correctly Understood the Standard
of Proof To Be “By a Preponderance of the Evidence.”
The essence of appellants’ first two claims on appeal is that
the trial court erroneously applied a heightened standard of proof
to their malpractice claims: to wit, “to a legal certainty” rather
than “by a preponderance of the evidence.” As appellants
implicitly acknowledge, there is nothing in the trial court’s
written ruling to suggest that it adopted such a standard. They
contend, however, that other rulings or statements by the court
show it did adopt a higher burden of proof.
In their first claim, appellants argue the trial court
mistakenly believed this was a “settle and sue”4 case, causing the

4 A “settle and sue” legal malpractice action is filed by a
former client suing after litigation has been settled. The basis of
the claim is that the settlement was less than it should have
been, or more than it had to be, by reason of the negligence of the
former client’s attorney. (Filbin v. Fitzgerald (2012)
211 Cal.App.4th 154, 157 (Filbin).)

11
court to apply the “to a legal certainty” standard of proof instead
of the default “preponderance of the evidence” standard
applicable in civil lawsuits. Appellants correctly note the term
“to a legal certainty” is ambiguous. (See Masellis v. Law Office of
Leslie F. Jensen (2020) 50 Cal.App.5th 1077, 1092 [the ambiguous
term “legal certainty” simply means the level of certainty
required by law, which is established by the applicable standard
of proof.].) As the Masellis court found, none of the settle and sue
cases using that term “explicitly state the appropriate burden of
proof is the ‘legal certainty’ standard and explain how that
standard fits within the framework of the three common
standards of proof listed in Evidence Code sections 115 and 502.
These omissions lead us to conclude the cases using the term
‘legal certainty’ are not authority applying a heightened burden
of proof to the elements of causation and damages in a legal
malpractice action.” (Masellis, at p. 1092.) The court held that
the preponderance of the evidence standard is the applicable
standard of proof in a “settle and sue” legal malpractice action.
(Ibid.) Given the dearth of case law applying a “legal certainty”
standard to settle and sue cases, we find the trial court’s mere
belief that this was a settle and sue case does not lead to the
conclusion that the court also believed it was appropriate to
impose a higher standard of proof on appellants.
Significantly appellants ignore the trial court’s actual
reference to appellant’s standard of proof: the court stated
“Plaintiffs’ burden on the instant motion is not dependent on
whether there was a settlement or a verdict [citing Filbin, supra,
211 Cal.App.4th at p. 167].” Berkowitz had also argued in his

12
summary judgment motion,5 that “Plaintiff’s burden is not
dependent on the existence of a settlement versus a verdict. [I]n
both litigation and transactional malpractice actions, the plaintiff
‘must show that but for the alleged malpractice, it is more likely
than not that the plaintiff would have obtained a more favorable
result.’ ([Viner v. Sweet, supra, (2003) 30 Cal.4th at p. 1244].)”
Respondents thus described and emphasized that appellants’
burden was governed by the preponderance of the evidence
standard, and the trial court agreed.6

5 The copy of the reply brief in support of Berkowitz’s motion
for summary judgment in the Appellants’ Appendix does not
appear to be a copy of the brief which was filed in the trial court.
It is not on numbered pleading paper and has no page numbers.
The ninth page of this document does not discuss settle and sue
cases or the burden of proof. Our quotes are from the fifth page
of this document at page AA 1463.
6 Perhaps in an attempt to show that this was not a settle
and sue action, appellants contend they raised a triable issue of
material fact that the settlement agreement with Behm was an
effort to mitigate their damages. The only relevance of the trial
court’s view of whether this was a settle and use case is that the
trial court might have misunderstood the burden of proof. As we
explain, the trial court did not. It indicated its belief that the
usual preponderance of the evidence standard applied.
Appellants fail to present any other argument that relies on the
characterization of the settlement as an attempt to mitigate
damages. “ ‘We are not obliged to make other arguments for
[appellant] [citation], nor are we obliged to speculate about which
issues counsel intend to raise.’ ” (United Grand Corp. v. Malibu
Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153; see In re
Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [“We
are not bound to develop appellants’ arguments for them.”].)

13
 In their second claim, appellants similarly argue that the
trial court’s “outright rejection of [their] evidence as ‘uncertain
and inherently speculative’ . . . and disregarding [their]
arguments as ‘irrelevant’ . . . , while accepting nearly all of the
Defendants’ evidence and arguments . . . , was a result of the
court’s incorrect assumption that [appellants] were ‘settle and
sue’ plaintiffs who had to meet a more stringent ‘legal certainty’
burden of proof on their case.” Again, this ignores the trial
court’s actual discussion of the applicable standard of proof.
Further, the trial court used the phrase “uncertain and
inherently speculative” only once in its ruling, and not as the
basis to reject appellants’ evidence. Rather the court stated
respondents had offered sufficient (undisputed) evidence that the
amount of damages that could have been awarded at the
upcoming punitive damages phase of the trial was “inherently
speculative and uncertain.” This narrow statement is correct and
in no way rejects any evidence properly offered by appellants.
The trial court used the word “irrelevant” only once to
describe appellants’ argument that Berkowitz’s initial pre-trial
assessment of the lawsuit as frivolous and subject to a section
128.5 motion proved appellants could have achieved a better
result in the conspiracy lawsuit. As the court pointed out,
estoppel does not bind an attorney to his or her previous position
in litigation when the attorney is later sued by the client. (See
Loube v. Loube (1998) 64 Cal.App.4th 421, 428 (Loube).) As we
discuss below, the trial court was correct in this assessment.
Even if the trial court had been mistaken, however, this one
mistake on one point does not amount to “disregarding” any other
arguments by appellants. Further, it would be a mistake
concerning the principles of estoppel, not the standard of proof.

14
 Appellants have not provided accurate citations to the
record, legal authority, or cogent reasoning to support their
sweeping claim that Berkowitz prevailed only because the trial
court erroneously applied a higher standard of proof. Simply
showing that the trial court accepted nearly all of respondent’s
evidence does not show error. “ ‘In order to demonstrate error, an
appellant must supply the reviewing court with some cogent
argument supported by legal analysis and citation to the
record.’ ” (United Grand Corp. v. Malibu Hillbillies, LLC, supra,
36 Cal.App.5th at p. 153.) ”We may and do ‘disregard conclusory
arguments that are not supported by pertinent legal authority or
fail to disclose the reasoning by which the appellant reached the
conclusions he wants us to adopt.’ ” (Ibid.)
Further, the trial court made clear in its written ruling
that it accepted respondents’ evidence because appellants failed
to comply with the requirement that a party opposing summary
judgment identify or specify the evidence which disputes the
moving party’s statement of undisputed fact. The trial court was
absolutely correct on that point and appellants do not contend
otherwise on appeal. The standard of proof in any civil case has
absolutely no relevance to or impact on the consequences of
failing to follow statutory procedures in opposing a motion for
summary judgment.

15
B. Appellants Did Not Raise Disputed Issues of Material
Fact As to Whether Counsel’s Actions Were the ‘But
For’ Causation of Damages.

1. Berkowitz’s Statements Do Not Raise a Triable Issue
of Material Fact About Appellants’ Liability.
Appellants contend Berkowitz’s own initial assessment that
the claims were completely frivolous and subject to a section
128.7 motion tends to show that but for Berkowitz’s negligence,
appellants would have received a dismissal of the lawsuit with
recovery of costs. They contend, based on Berkowitz’s
statements, there was a triable issue of fact as to whether they
would have received a better result but for Berkowitz’s negligent
defense of the case at trial.
The trial court rejected this argument, explaining, “the
principles of estoppel cannot be used to bind an attorney to the
attorney’s previous position in instances where the attorney is
later sued by a client for legal malpractice. (See Loube[, supra,]
64 Cal.App.4th [at p.] 428; Kerner v. Superior Court (2012)
206 Cal.App.4th 84, 127.) Further, Plaintiff[s] fails to provide
evidence tending to dispute Defendants[’] evidence, discussed
above, in which Defendants show that Plaintiffs were apprised of
their risk of liability in the Behm Lawsuit. Therefore, this
argument raises no triable issue.”
Appellants have not shown this ruling was incorrect. They
cite no legal authority disagreeing with the authorities relied
upon by the trial court and they do not argue the trial court
misunderstood the cited cases. The Loube court, in fact, is the
mirror image of this case. In Loube the clients argued their
former lawyers’ argument at a prove-up hearing that their claims
were worth about $250,000 should prevent the lawyers from

16
claiming in the malpractice action that the claims were
worthless. (Loube, supra, 64 Cal.App.4th at p. 428.) Put
differently, they contended their former lawyers’ argument was
irrefutable proof of the value of their claims. The Loube court
rejected this proposition.
Appellants do not argue Loube or Kerner were wrongly
decided. Nor do appellants factor into their “but for” causation
analysis that counsel’s early assessment of Vorzimer’s exposure
changed and he subsequently expressly advised Vorzimer of his
liability under Behm’s conspiracy theory.7

7 In opposing the motion for summary judgment, Vorzimer
filed a declaration which attached an email from Berkowitz
discussing filing a section 128.7 motion or a demurrer. This
occurred in August 2015, just days after appellants had been
served with the complaint. On December 7, 2015, while discovery
was still ongoing, Berkowitz sent an email to Vorzimer about the
notice requirements for a section 128.7 motion. Berkowitz then
sent a pre-section 128.7 “warning” email to Behm’s attorney on
December 14, 2015. Behm’s attorney disputed that the lawsuit
lacked a basis in fact or law. Ultimately Berkowitz did not file
the motion.

Respondents UMF 33 is: “Vorzimer understood he had
‘quite a bit of risk’ in the Behm litigation. Lukes, Jr. testified
that by March of 2016 he and John Vorzimer ‘were
understanding the exposure we had with the potential jury trial
with respect to costs and risks’ and he discussed with Vorzimer
‘there are a lot of risks and costs associated with not going to
arbitration.’ ” Appellants did not properly dispute this fact. In
addition, John filed a declaration in opposition to summary
judgment admitting Berkowitz advised him he had liability
under a conspiracy theory.

17
 Appellants only argument is that the trial court failed to
recognize that Berkowitz’s initial assessment shows “how badly
[counsel] misjudged Behm’s claims and directly affected
[counsel’s] ability to provide sound legal advice to the Vorzimers.”
Even assuming for the sake of argument that Berkowitz’s early
assessment showed misjudgment of Behm’s claim and impaired
his ability to provide sound legal advice, that would only create a
triable issue of fact on the negligence element of legal
malpractice. A defendant moving for summary judgment is only
required to negate one element of a plaintiff’s case. Here,
Berkowitz negated the causation/better results elements. Even if
Vorzimer could in theory have argued that he relied on
Berkowitz’s allegedly bad advice and elected to go to trial rather
than settle, the undisputed evidence established that Vorzimer
was not in a financial position to settle the case before trial.
Thus, appellants did not create a triable issue of material fact.

2. Appellants’ First Amended Complaint Does Not Allege
They Invested Money in Renovating the Edgeware
Property in Reliance on Advice by Berkowitz.
Appellants contended in opposition to the summary
judgment motion that they invested $1 million in renovations to
the Behm property in reliance on Berkowitz’s advice that the
Behm lawsuit was frivolous. This amount was material to their
claim of damages caused by Berkowitz’s alleged malpractice.
They contend the trial court erred in finding appellants failed to
allege such damages in their complaint. Appellants contend they
specifically alleged that they were renovating the property and
Berkowitz failed to account for the cost of the improvements
when he negotiated the post-verdict settlement.

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 “[T]he burden of a defendant moving for summary
judgment only requires that he or she negate plaintiff’s theories
of liability as alleged in the complaint; that is, a moving party
need not refute liability on some theoretical possibility not
included in the pleadings.” (Hutton v. Fidelity National Title Co.
(2013) 213 Cal.App.4th 486, 493.) “Furthermore, ‘ “ ‘ “[t]he
[papers] filed in response to a defendant’s motion for summary
judgment may not create issues outside the pleadings and are not
a substitute for an amendment to the pleadings.” ’ ” [Citation.]’
[Citation.] An opposing party’s separate statement is not a
substitute for amendment of the complaint. [Citation.]
Similarly, ‘ “ ‘[d]eclarations in opposition to a motion for
summary judgment “are no substitute for amended pleadings.”
. . . If the motion for summary judgment presents evidence
sufficient to disprove the plaintiff’s claims, . . . the plaintiff
forfeits an opportunity to amend to state new claims by failing to
request it.’ ” [Citations.]’ ” (Ibid.)
Appellants rely on Paragraph 30 of the First Amended
Complaint, which refers to Behm’s second lawsuit for breach of
the settlement agreement: “With respect to the Balaban
Lawsuit, Defendants Berkowitz and the Kadish Firm, and each of
them, negligently and carelessly breached their professional and
ethical obligations to the Vorzimers in connection with the
Balaban Lawsuit, inter alia, through: [¶] A. Failing to structure
the settlement to account for the fact the Edgeware Property was
undergoing renovations and remodel construction, failing to
include in the settlement agreement an itemization of appliances,
fixtures and other personal property that would be included in
the conveyance of the Edgeware Property; [¶] B. Failing to
structure the settlement such that the Vorzimers were conveying

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the Edgeware Property in ‘as is’ condition, failing to structure the
settlement to provide for Barbara Behm or her attorneys to
conduct an inspection of the Edgeware Property prior to taking
possession; and, [¶] C. Failing to take other measures to ensure
that the Vorzimers were fully released from Barbara Behm’s
claims arising out of the Behm Lawsuit.”
Nothing in this paragraph in any way suggests that
appellants undertook the renovation in reliance on Berkowitz’s
advice about the Behm conspiracy lawsuit. The paragraph refers
to the Balaban lawsuit, which involved Behm’s post-settlement
claims that appellants removed fixtures and intentionally
damaged the house before moving out. These allegations contend
Berkowitz was negligent in failing to describe the under
construction status of the property and to identify and list
personal property in the house which appellants did not intend to
include when they conveyed the property back to Behm. Thus,
the trial court correctly found appellants did not allege they spent
$1 million in renovations in reliance on Berkowitz’s advice.

C. Appellants Did Not Raise a Triable Issue of Material
Fact That Berkowitz’s Handling of the Settlement
Was Negligent or That They Could Have Obtained a
Better Result.
Appellants contend Berkowitz was negligent in not
structuring the settlement to state that the property was being
conveyed “as is” and to list the fixtures and appliances that would
(or would not) be conveyed with the house. The trial court stated:
“Plaintiffs do not dispute that [Berkowitz] told Plaintiffs not to
remove any attachments or fixtures from the Edgewater
property. (DUMF No. 62.) Therefore, Plaintiffs raise no triable
issue.” Appellants contend, in effect, that by focusing on

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Berkowitz’s advice the trial court missed the true triable issue of
fact. It is appellants whose focus is too narrow.
Berkowitz excerpted Behm’s claims of appellants’ alleged
wrongful conduct in DUMF 73: “Behm alleged Plaintiffs agreed
to peacefully vacate the Edgeware Property by November 30,
2016 but ‘from November 1, 2016 until they vacated on November
27, 2016 [Plaintiffs] intentionally, wantonly, and maliciously
caused the following damage to [Behm’s] personal and real
property: removed fixtures, removed personal property, damaged
structures (including, but not limited to, walls, flooring,
plumbing, and electrical components), and otherwise left the
property in a deplorable and unsafe condition and unfit for
habitation, causing Plaintiff to incur damages and to rent
another place in which to live.’ ” Appellants did not properly
dispute this fact and it is treated as undisputed.
In its written ruling, the trial court, in effect, treated as
true the allegations of Behm’s complaint that the damages
occurred post-settlement. Even if Behm had agreed to accept the
property “as is” on the date the agreement was signed, that would
not have precluded appellants’ liability for violating the
agreement after it was signed. Although not expressly mentioned
by the trial court, it is axiomatic that an agreement cannot
legally exempt a party from responsibility for “willful injury” to
the property of another. (Civ. Code, § 1668.)
And because removing fixtures might possibly have been
the result of a misunderstanding, rather than willful damage, the
trial court pointed out in its ruling the undisputed fact that
appellants were aware of the contractual requirement not to
remove fixtures. Thus, as the trial court impliedly found, any

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failure to include “as is” language in the settlement agreement
was not the cause of the post-settlement lawsuit by Behm.
What if the willful damage was inflicted before the
settlement agreement was signed? Appellants’ First Amended
Complaint suggests, and they impliedly contend on appeal, just
that. Thus, they now argue, if Berkowitz had negotiated the
inclusion of an “as is” term in the settlement agreement or
required Behm to inspect the Edgeware property before signing
the agreement, appellants “would have been fully released from
Behm’s claims of property damage.”
The trial court did not miss a triable issue of fact about the
inclusion of an “as is” clause. Berkowitz offered evidence that
Behm testified she would not have entered into the settlement if
she had known about the damaged condition of the property. Put
differently, Behm would not have accepted an “as is” term.
Appellants have not presented any contrary evidence and offer no
legal authority that an attorney commits malpractice when he
fails to obtain an unobtainable concession in negotiations.
Appellants’ options at the time of settlement discussions
were to accept the settlement agreement without an “as is” clause
or have no settlement agreement. Appellants do not contend or
offer any evidence they would have refused the settlement
agreement releasing them from the certain $30 million judgment
with the possible addition of punitive damages if they had known
that the lack of an “as is” clause would result in additional
attorney fees. In other words, they have not shown that no
settlement agreement would have been a better outcome than the
settlement agreement actually obtained.

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 DISPOSITION
The judgments are affirmed. Respondents are awarded
costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

BIGELOW, P. J.

GRIMES, J.

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