Filed 3/9/22 Taylor v. Bochnewich Law Offices CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
VICTORIA JO ISOM TAYLOR et al., B308498
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 19STCV21283)
v.
BOCHNEWICH LAW OFFICES
et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of
Los Angeles County, Rafael A. Ongkeko, Judge. Affirmed.
Law Offices of John A. Belcher and John A. Belcher for
Plaintiffs and Appellants.
Ford, Walker, Haggerty & Behar, Jeffrey S. Behar, Tina I.
Mangarpan and Mark P. LaScola for Defendants and
Respondents.
_________________________
This legal malpractice action arises from a single telephone
conversation between attorneys Peter Bochnewich and Daniel
Katz in the underlying action challenging the 2013 estate plan of
Armie Isom. In that action Bochnewich’s clients, siblings
Victoria Jo Isom Taylor, Cameron Troy Isom and Darci Suzanne
Isom (siblings or appellants) were challenging the estate plan of
their father Armie Isom. That plan left almost the entirety of
Armie Isom’s estate to his stepdaughter Mischelynn Scarlatelli
(Scarlatelli); Katz represented Scarlatelli. On January 10, 2017,
following a bench trial, the court upheld the 2013 plan.
In June 2019, the siblings brought this action against
Bochnewich and his law office. In their First Amended
Complaint (FAC), they alleged causes of action for fraudulent
concealment, professional negligence, and breach of contract
against Bochnewich, all based on a settlement offer allegedly
made by Katz while the case was under submission, which
Bochnewich allegedly failed to disclose. Bochnewich moved for
and was granted summary judgment on the ground that he
disclosed Katz’s proposal in an e-mail to the siblings sent on
January 6, 2017, the same day he spoke with Katz. The siblings
now appeal from the order granting summary judgment and the
ensuing judgment. They contend summary judgment should not
have been granted because the evidence shows Bochnewich failed
to accurately convey Katz’s settlement offer and to take action on
the proposal. We affirm the trial court’s order.
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BACKGROUND
Armie Isom made a series of estate plans, with each
subsequent plan giving appellants less of his estate. The 2009
plan gave appellants his most valuable property on Mission
Boulevard. There is some uncertainty about the value of that
property, but it appears to have been worth about $2 to $2.5
million at that time. The 2011 plan gave each appellant 25
percent of that property and gave 25 percent to Scarlatelli. The
2013 plan gave appellants $25,000 each and all of the rest of the
estate to Scarlatelli. In the action challenging the estate plan,
appellants alleged that the estate was worth $60 to $100 million.
They sought an accounting from Scarlatelli.
The FAC alleged Katz made a settlement offer to
Bochnewich while the case was under submission, a period which
stretched from November 16, 2016 to January 10, 2017.
Appellants alleged they only learned of the offer in March 2019,
when Katz mentioned it to their appellate counsel. The FAC does
not contain any details of this settlement offer, and does not
mention the existence of the January 6, 2017 e-mail from
Bochnewich to appellants, or their replies to that e-mail, which
later served as the basis for Bochnewich’s summary judgment
motion.
Discovery in this action clarified that there were no other
settlement offers or discussions apart from whatever Katz
proposed or offered during the telephone call referenced in the
January 6, 2017 e-mail. That e-mail was entitled “HIGHLY
PRIVILEGED AND PROTECTED MESSAGE FROM DAN
KATZ: RE POSSIBLE RESOLUTION.” The first subheading
was “Further Offer to Mediate,” and briefly stated that Katz
called to “ask about the prospect of Mediation and settlement. I
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feel obligated to inform you of this, however tentative the
‘offer’ or path to settlement, may have been.” The next
subheading was “The gist.” In this section, Bochnewich wrote
“whenever these guys (Katz or Dagrella…) speak it is never with
great certainty and they always hedge their words. [¶] a.
However, Katz indicated that there is ‘11 million in property’ and
appeared that a substantial portion of this, including all of the
Mission Boulevard, seemed to be available, and possibly more. [¶]
b. At the same time, I get the same run down about how hard it
would be to convince his client of this, even though he called me.”
He added “5. [t]hat said, if a man comes to us with any form of
olive branch, it is not wise to disregard it. [¶] 6. And again, I am
just telling you what was said and generally discussed, as I
feel obligated to report it and not dismiss any overture out of
hand.” In the last paragraph, Katz pointed out that a settlement
would avoid risk and the delay of a possible appeal. He wrote:
“All of this requires calm thought. You should feel zero pressure
of any kind, about it” and “I am just conveying the message.
That’s it. Again, I do not suggest that you should do anything
with this information at all, save to know that the call occurred.”
There is no dispute in the evidence that the siblings
received this e-mail at or near the time it was sent, and that
Cameron and Darci replied to the e-mail while the matter was
still under submission, and rejected the possible resolution
outlined in the e-mail. On Sunday January 8, 2017, Darci
replied: “Without a COMPLETE AND ACCURATE
ACCOUNTING OF THE ESTATE – There is absolutely no sense
in even talking about mediation or ANY type of offer.” On
Monday January 9, 2017, Cameron replied, through an attorney,
that “Cameron and I oppose mediation, not because we believe
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that the judge may rule against us, but because Scarlatelli will
not agree to mediation and we do not have an accounting of trust
assets.” Victoria did not respond to the e-mail, but in December
2016 had told Bochnewich that she wanted to ask the trial court
(posttrial) to have Scarlatelli removed as trustee and from the
trust property and for a full accounting and forensic asset search.
Bochnewich understood this as rejecting any further settlement
discussions or mediation.
Katz was deposed in this action on April 28, 2020. Katz
agreed that he spoke with Bochnewich during the first week of
January 2017. The purpose of the phone call was to “discuss
mediation and settlement.” Katz did not make a settlement offer.
As is discussed in more detail below, Katz testified that
Bochnewich’s e-mail was “pretty accurate” although it may have
overstated the amount available for a possible settlement.
On June 4, 2020, Bochnewich moved for summary
judgment on the ground that a firm settlement offer was not
made, he conveyed the offer which was made by Katz in the
January 6, 2017 e-mail, and the siblings rejected that offer.
Appellants opposed summary judgment on the ground the
information in the e-mail was not consistent with Katz’s
deposition testimony about the telephone call and offer and so
there was a triable issue of fact concerning the accuracy and
sufficiency of the e-mail. They also contended that in the e-mail
Bochnewich told them to “do nothing” which was in essence a
rejection of the deal when Bochnewich should have recommended
it. Finally, they contended that if Bochnewich had accurately
conveyed the offer, they would have accepted it. Appellants did
not seek leave to amend the FAC to incorporate their theories
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about the inaccuracies of the e-mail, their reasons for rejecting
the proposal in the e-mail, or Bochnewich’s duty to take action.
The trial court granted the motion for summary judgment
on both substantive and procedural grounds. The court found the
FAC did not give fair notice of appellants’ new theories of
misrepresentation and failure to recommend settlement. The
court further found the e-mail accurately conveyed the proposal
made by Katz and the e-mail could not reasonably be understood
as telling appellants to “do nothing,” or as advising them to reject
the proposal.
This appeal followed.
DISCUSSION
Appellants contend Bochnewich materially misrepresented
Katz’s call in the e-mail1 and Bochnewich’s inaction after
1 Appellants make their contentions about
misrepresentations in the section of their opening brief entitled
“Statement of Facts.” Headings should accurately reflect the
content which follows. An appellant’s opening brief should
“provide a summary of the significant facts limited to matters in
the record.” (Cal. Rules of Court, rule 8.204(a)(2)(c).) Appellants’
“Statement of Facts” does not satisfy either requirement of rule
8.204. The section consists primarily of argument that the email
does not accurately reflect the telephone call between Katz and
Bochnewich; the last subheading is entitled “Bochnewich
Materially Misrepresents the Call in an Email.” This section
refers to matters outside the record (“Katz is an objective
witness” at AOB 9) and provides only favorable deposition
testimony, in some cases stopping a quotation in mid-answer,
which has the effect of creating an inaccurate impression. The
section also omits significant material facts, such as appellants’
responses to the email. In their reply brief, appellants cite legal
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receiving Katz’s proposal was below the standard of care. They
also contend their pleadings gave notice of their theories.
We review the grant of summary judgment de novo to
determine whether triable issues of material fact exist. (Wiener
v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th
1138, 1142.) We view the evidence in the light most favorable to
appellants as the losing parties, and strictly scrutinize
respondents’ own evidence, in order to resolve any evidentiary
doubts or ambiguities in appellants' favor. (Ibid.)
A. The Pleadings Do Not Give Fair Notice.
Like the trial court, we find the pleadings do not encompass
the theories appellants advanced in opposition to summary
judgment. While appellants are correct that they are not
required to “describe [Bochnewich’s] evidence” in their complaint,
they were obliged to give fair notice of the theories on which they
were seeking relief. This is particularly true with respect to
appellants’ claim that Bochnewich advised them to “do nothing”
and that this amounted to advice to reject the offer, when
Bochnewich should have advised them to accept the offer. Even
if appellants did not initially realize that the “settlement offer”
Katz mentioned in March 2019 referred to the January 6, 2017
telephone call, once they deposed Katz, they were aware of that
fact and of the substance of that call and any proposals contained
therein. If they then believed that Bochnewich made a “do
nothing” recommendation in the e-mail, they were required to
authority in the section entitled Statement of Facts. This
jumbling together of facts and legal argument in both of
appellants’ brief is not helpful. It can also be grounds for
forfeiture, although we elect not to apply that doctrine here.
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seek leave to amend the FAC to assert what is unquestionably a
new theory.
“The pleadings play a key role in a summary judgment
motion and ‘ “ ‘set the boundaries of the issues to be resolved at
summary judgment.’ ” ’ (Nativi v. Deutsche Bank National Trust
Co. (2014) 223 Cal.App.4th 261, 289 [167 Cal.Rptr.3d 173].)
‘[T]he scope of the issues to be properly addressed in [a] summary
judgment motion’ is generally ‘limited to the claims framed by the
pleadings. [Citation.] A moving party seeking summary
judgment or adjudication is not required to go beyond the
allegations of the pleading, with respect to new theories that
could have been pled, but for which no motion to amend or
supplement the pleading was brought, prior to the hearing on the
dispositive motion. [Citations.]’ (Howard v. Omni Hotels
Management Corp. (2012) 203 Cal.App.4th 403, 421
[136 Cal.Rptr.3d 739]; see California Bank & Trust v. Lawlor
(2013) 222 Cal.App.4th 625, 637, fn. 3 [166 Cal.Rptr.3d 38] [‘[a]
party may not oppose a summary judgment motion based on a
claim, theory, or defense that is not alleged in the pleadings,’ and
‘[e]vidence offered on an unpleaded claim, theory, or defense is
irrelevant because it is outside the scope of the pleadings’].)”
(Jacobs v. Coldwell Banker Residential Brokerage Co. (2017)
14 Cal.App.5th 438, 444.)
Appellants are correct that courts are empowered to read
the pleadings broadly and in light of the facts adduced in the
summary judgment proceedings. Nevertheless, there is no
possible reading of the FAC which gives fair notice of a theory of
professional negligence based on a failure to recommend the
proposal made by Katz. We note that appellants’ own behavior
shows the wisdom of using the pleadings as a limitation on the
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issues addressed in summary judgment proceedings. They have
shifted their theories on appeal, now claiming that the “proposal
deserved action” and Bochnewich should have taken some action
such as “[i]nform[ing] the trial court that the parties were
negotiating settlement and request[ing] a delay in ruling.” This,
too, is a theory not found in the pleadings. Appellants’ various
and changing unpleaded theories of what Bochnewich should
have done (apart from communicating Katz’s proposal) do not
create triable issues of fact which defeat summary judgment.
B. Bochnewich’s E-mail Was Accurate.
Assuming for the sake of argument that the FAC could be
read broadly to encompass a claim that Bochnewich’s omission of
key facts from his e-mail amounted to a complete failure to
convey Katz’s proposal to appellants, we would find that the e-
mail accurately conveyed the substance of the telephone
conversation between Katz and Bochnewich, as that conversation
was described by Katz.
Appellants contend that the e-mail is inaccurate because it
(1) does not use the phrase “2011 estate plan”; (2) says Katz did
not have authority and it would be “hard” for him to persuade
Scarlatelli when Katz did in fact have authority to settle; and
(3) did not mention that the trust would pay for mediation and
Scarlatelli was willing to attend. They also contend more
generally that Katz made a firm offer to settle but the e-mail
made it sound tentative and uncertain, and the e-mail does not
contain the phrase “time is of the essence.” Appellants’
contentions do not create triable issues of material fact
concerning misrepresentations in the e-mail.
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1. 2011 Estate Plan
Appellants are correct that Katz testified that he told
Bochnewich that his settlement position would reflect the “2011
estate plan,” but appellants do not explain the significance of
Bochnewich’s failure to use the specific phrase “2011 estate plan”
in his e-mail. Appellants were aware of the provisions of the
2011 estate plan, which gave them 75 percent of the Mission
property. The phrase used by Bochnewich to describe the
potential settlement (“all of the Mission Boulevard”) adequately
conveyed the value of the potential settlement.
Appellants point out that Katz testified: “I didn’t think the
e-mail set forth what we were willing to offer in terms of the 2011
estate plan.” This is not Katz’s complete answer to the question
posed. He continued, explaining: “But generally speaking, the
remainder of the e-mail, I thought, seemed pretty accurate.”
Katz explained that his sole disagreement with the e-mail was
with the statement: “However, Katz indicated that there is
11 million in property and appeared that a substantial portion of
this, including all of the Mission Boulevard seemed to be
available and possibly more.” Katz testified that he did not say
“and possibly more.” He explained: “The real estate was
somewhere around 10- or $11 million at the time of the
conversation, and I did propose to him that a significant
proportion of it – or a portion of it would be available to his
clients but only in the context of getting them back on title or
back on the bequeath of Mission.” Thus, while the 2011 estate
plan referenced by Katz during the telephone conversation only
gave appellants 75 percent of the Mission property, Katz did not
disagree with the statement “all of the Mission Boulevard seemed
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available.”2 Further, even assuming Bochnewich was mistaken
in suggesting that appellants might get all of the Mission
property, appellants do not explain why they would have been
interested in an offer for 75 percent of the property but not all of
the property as described in the e-mail.
2. Authority to Settle
Katz was also asked about the statement by Bochnewich
that he got “the same rundown about how hard it would be to
convince his client of this.” Katz indicated that he did not
remember using those exact words, but it was his general
practice to “remind the lawyer at the other end that the client
still needs to agree. Without going into detail, mine and Jerry’s
communications with Mischelynn, getting Mischelynn to provide
any settlement authority was very difficult in this case.” Katz
was asked: “That’s what you told him?” Katz replied: “Yes, and
that she might change her mind about this authority.” Thus,
Katz did not view Bochnewich’s statement as an inaccurate
summary of Katz’s own statement.
3. Mediation Costs
Although Bochnewich did not mention the trust’s payment
for mediation costs in the January 6, 2017 e-mail, he did
adequately convey it in a follow-up e-mail on January 8, in
response to Darci Isom’s statement that she was opposed to
2 Katz’s testimony on this specific point reinforces his other
testimony, discussed below, that he was not making a firm offer
to appellants of the 2011 estate plan; all of Mission would be
more than the 2011 estate plan. An agreement approximating
the 2011 estate plan was the goal, but was, in no way, a sure
thing.
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paying mediation fees. Bochnewich wrote: “Understood as to
Mediator fees. --It is without question that we would not and
could not pay for it . . . . I think Katz got at least that much.”3
The record citations provided by appellants do not make any
reference to Scarlatelli attending the mediation.
4. No Firm Offer to Settle
Appellants contend more generally that Katz made a firm
offer to settle the case but the e-mail made the offer sound
uncertain or tentative. Appellants are simply incorrect that Katz
made a firm offer to settle the case.
Appellants first contend, using italics for emphasis, that
Katz testified that he had “immediate authority to offer the 2011
estate plan.” This is not an accurate summary of Katz’s
testimony. At the pages cited by appellants, Katz testified that
the 2011 estate plan was “what I obtained authority for before I
engaged [Bochnewich] in the phone call.” Katz immediately
continued: “And the phone call went something like this:
[Bochnewich], I’d like to, you know, have a settlement conference
or mediation.” This testimony does not remotely convey that
Katz had “immediate” authority to “offer” the 2011 estate plan.
At a minimum, the opening reference to a settlement conference
or mediation conveys that there were terms or conditions which
would have to be agreed upon before appellants could receive
anything.
This issue was explored in the follow-up questions. Katz
was asked if he “offer[ed] the 2011 estate plan or other property
3 Bochnewich testified that he raised the issue of the trust
paying for mediation fees and Katz said that would not be a
problem.
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equivalent to that in [the] call?” He replied: “I didn’t make any
offers during the call. I didn’t make – you know, ‘we will settle on
these terms.’ I was communicating what our settlement position
would be.” Katz was then asked why he was offering a
settlement conference or mediation. He replied that the Isom
siblings had very different personalities and “being on the
Mission property with [Scarlatelli] wasn’t something they were
keen on. Maybe a mediator could help find a different package of
other properties that would be acceptable to each of them that
would equate to what they would get out of Mission.”
Katz also testified it was his general practice to “remind
the lawyer at the other end that the client still needs to agree.”
Katz was asked: “That’s what you told him?” Katz replied: “Yes,
and that she might change her mind about this authority.”
Appellants contend that Katz’s own assessment that he did
not communicate an offer should not control the determination of
whether it was an offer. Katz was certainly in the best position
to know what he intended to communicate, and his other
statements during the telephone conversation show that he was
offering mediation in the hope that the parties could agree on a
package of assets that would settle the case. Objectively, this is
not a firm offer which could have been accepted by appellants.
5. No Material Omissions
Katz was specifically asked if Bochnewich had left anything
out of the e-mail that was discussed in the telephone
conversation. Katz replied that he had told Bochnewich about
“time being of the essence,” because it would not be possible to
settle it after the judge ruled; Katz did not see that in the e-mail.
He did not believe that Bochnewich left out anything else about
their conversation.
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Although appellants refer to the omission of the “time is of
the essence” phrase, they do not explain how it was part of the
offer or what impact the phrase had on the offer. It cannot
reasonably be understood as setting a date by which the offer had
to be accepted. It simply reflected the reality that the parties
were waiting for a court ruling which could come at any time and
moot the offer. At most, the phrase would be relevant to the
unpleaded claim that Bochnewich had a duty to take action such
as contacting the court.
Further, Bochnewich indirectly reminded appellants of the
reality of their situation by stating in the e-mail that he had
checked for the court’s ruling four times that day, conveying that
the ruling could come at any time, although Bochnewich believed
it would come at the end of the month.4 More importantly, both
Darci and Cameron rejected the proposal in Bochnewich’s e-mail
over the weekend, less than 48 hours after receiving, stating that
they would not agree to a settlement without a further
accounting of trust assets, something Scarlatelli had already
rejected. Victoria had already conveyed that she was not
interested in settlement without an accounting. Their quick
rejection of any settlement without their conditions renders this
issue irrelevant.
4 As a matter of logic and reason, any settlement conference
or mediation pending when the ruling was announced would be
affected by the ruling, with the prevailing party likely to seek, at
a minimum, more favorable terms.
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DISPOSITION
The judgment is affirmed. Respondents are awarded costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
GRIMES, Acting P. J.
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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