Sl'PERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO

Transcription

1 MICHAEL A. CONGER, ESQUIRE (State Bar No. 1) LAW OFFICE OF MICHAEL A. CONGER San Dieguito Road, Suite -1 Mailing: P.O. Box Rancho Santa Fe, California 0 Telephone: () -000 Facsimile: () - Attorneys for Plaintiffs Christopher Ellis, Bradley D. Elow, Robert Finch and Howard LaBore individually, and on behalf of all others similarly situated Sl'PERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO CHRISTOPHER ELLIS, BRADLEY D. ELOW, ) CASE NO: ROBERT FINCH and HOWARD LaBORE, ) CU-PN-CTL individu.ally, and on behalf of all others similarly ) situated, ) ) PLAINTIFFS' MEMORANDUM OF Plaintiffs, ) POINTS AND AUTHORITIES IN ) OPPOSITION TO (1) DEMURRERS v. ) OF JACKSON, DEMARCO, TIDUS ) & PECKENPAUGH AND JACKSON, DeMARCO, TIDUS & ) STEPHENEY R. WINDSOR AND PECKENPAUGH, A LAW CORPORATION, ) () MOTION FOR JUDGMENT ON GREGORY GLENN PETERSEN, an individual, ) THE PLEADINGS OF CHRISTOPHER D. NISSEN, an individual, ) CHRISTOPHER NISSEN BRADLEY MATHEWS, an individual, ) STEPHENEY R. WINDSOR, an individual, ) MICHAEL ANTHONY JENKINS, an individual, ) Date: July, 0 and DOES 1-0, ) Time: :00 a.m. ) Judge: Hon. Ronald S. Prager Defendants. ) Dept: C-1 ) Complaint Filed: February, ~---- ) Trial: February,0 Plaintiffs' Memorandum of Points and Authorities in Opposition to (1) Demurrers of Jackson, DeMarco, Tidus & Peckenpaugh and Stepheney R. Windsor and () Motion for Judgment on the Pleadings of Christopher D. Nissen

2 TABLE OF CONTENTS III. A GENERAL DEMURRER TESTS THE LEGAL SUFFICIENCY OF THE FACTUAL ALLEGATIONS IN A COMPLAINT TO STATE A CAUSE OF ACTION... B.. The Plaintiffs Have Alleged Causation and Damages-"But for" the the Defendants' Litigation Malpractice and the Resulting Adverse Adjudication in Federal Court That Retiree Health Benefits of. SDPOA Members Are Not Vested, the City of-san Diego Could 1. Not, and Would Not, Have Capped Retiree Health Benefits INTRODUCTION... 1 II. STATEMENT OF MATERIAL FACTS... 1 IV. THE PLAINTIFFS HAVE ADEQUATELY ALLEGED CAUSATION Al'l"D DAMAGES...,... A The Causation Element ofa Cause ofaction for Negligence Is Ordinarily an Issue of Fact, Not Law... V. THE HOLDING OF FEDERAL COURTS-THAT THE RETIREMENT HEALTH BENEFITS OF SDPOA MEMBERS ARE NOT VESTED-IS 1 THE PRODUCT OF THE DEFENDANTS' MALPRACTICE; THAT HOLDING IS NOT ENTITLED TO PRECLUSIVE EFFECT UNDER 1 THE DOCTRINE OF COLLATERAL ESTOPPEL IN A SUBSEQUENT LEGAL MALPRA.CTICE CASE... A. The District Court's Summary Judgment in SDPOA v. SDCERS Was Based Upon the Defendants' Failure To Submit Evidence That Retiree Health Benefits Are Vested, Not Upon a Question of 1 Law... 1 B. An Adjudication offact or Law in a Prior Action Is Not Entitled 0 to Preclusive Effect in a Later Action for Legal Malpractice, Because the Issues Are Not Identical... 1 VI. CONCLUSION... Plaintiffs' Memorandum of Points and Authorities in Opposition to (l) Demurrers of Jackson, DeMarco, Tidus & Peckenpaugh and Stepheney R. Windsor and () Motion for Judgment on the Pleadings of Christopher D. Nissen

3 TABLE OF AUTHORITIES Cases Arthur v. Santa Monica Dairy Co. (0) Cal.App.d... Aubry v. Tri-City Hospital Dist. (1) CaLth... Bame v. City ofdel Mar (001) Cal.AppAth... Brookhouser v. State ofcalifornia (1) Cal.AppAth... Coscia v. McKenna & Cuneo (001) Ca1.th... DiPalma v. Seidman (1) Cal.AppAth 1... Durkin v. Shea & Gould (th Cir. ) F.d 1... Fox v. Ethicon Endo-Surgery, Inc. (00) CalAth... Garcia v. Borelli (1) 1 Cal.App.d In re Marriage ofbrown () 1 Ca1.d... Lombardo v. Huysentruyt (001) 1 Cal.AppAth... Lucido v. Superior Court () 1 Ca1.d... Osornio v. Weingarten (00) 1 Cal.AppAth Riccio v. Stein (Fla.App.) So.d Ruffalo v. Patterson () Cal.App.d , San Diego Police Officers' Association v. San Diego City Employees' Retirement System (00) F.d , -, - Plaintiffs' Memorandum ofpoints and Authorities in Opposition to (1) Demurrers of Jackson, DeMarco, Tidus & Peckenpaugh and Stepheney R. Windsor and () Motion for Judgment on the Pleadings ofchristopher D. Nissen

4 Smith v. Lewis () Ca1.d... Spickler v. York (Me.1) 0 A.d... 1 Swahn Group, Inc. v. Segal (0) 1 Ca1.App.th 1... Vasquez v. Residential Investments, Inc. (00) Cal.App.th... Windham at Carmel Mountain Ranch Assn. v. Superior Court (00) Ca1.App.th 1... Statutes Government Code United States Code U.S.c.... Rules 1 1 Federal Rules ofcivil Procedure Rule (c)() Other Authorities Witkin, Cal. Procedure (th ed. 00) Judgment, p...., pp , pp. -..., pp. -..., p Plaintiffs' Memorandum ofpoints and Authorities in Opposition to (1) Demurrers of Jackson, DeMarco, ridus & Peckenpaugh and Stepheney R. Windsor and () Motion for Judgment on the Pleadings ofchristopher D. Nissen

5 Witkin, Cal. Procedure (th ed. 00) Appeal 0, p IV Plaintiffs' Memorandum of Points and Authorities in Opposition to (1) Demurrers of Jackson, DeMarco, Tidus & PeckenpaUgh and Stepheney R. Windsor and () Motion for Judgment on the Pleadings ofchristopher D. Nissen

6 1 1 1 I. INTRODUCTION This is a class action attorney malpractice lawsuit brought by San Diego police officers Christopher Ellis, Bradley D. Elow, Robert Finch, and Howard LaBore, employees of the City of San Diego ("City"). (Class Action Complaint for Attorney Malpractice ("Complaint"), ~ 1.) Defendants Jackson, DeMarco, Tidus & Peckenpaugh ("JDTP") and Stepheney Windsor ("Windsor"), one ofthe attorneys who represented the plaintiffs in previous litigatioh, have filed demurrers to the complaint. Defendant Christopher Nissen, another of the attorneys who represented,the plaintiffs in previous litigation has filed a motion for judgment on the pleadings. Each ofthese defendants challenge the complaint on the same ground-contending that causation cannot be established in this malpractice case as a matter of law. Howeve~; as will be shown below, these demurrers should be overruled, and the motion for judgment on 'the pleadings should be denied because in this case, as in most legal malpractice cases, causation is a question offact and the plaintiffs have adequately pleaded causation and damages. Moreover, the plaintiffs are not precluded by a prior adjudication from proving that such an adjudication was itself the product ofiitigation malpractice. II. STATEMENT OF MATERIAL FACTS l In 00 the plaintiffs, and approximately 1,00 oftheir fellow police officers, retained the defendant attorneys to contest the City of San Diego's imposition of contract terms on the San Diego Police Officers Association ("SDPOA"), the recognized bargaining agent for San Diego police officers under the Meyers-Milias-Brown Act (Gov. Code, 00, et seq.). (Complaint, ~ 1.) The defendants agreed to represent the plaintiffs and approximately 1,00 oftheir fellow police officers on precisely the same terms and conditions. (Complaint, ~.) The following statement of material facts states the allegations of the complaint, filed February, 0. In the accompanying Notice oflodgment in Support of Plaintiffs' Opposition to Demurrers [etc.] ("NOL"), Exhibit 1, the plaintiffs have lodged Plaintiff Christopher Ellis' Response to Special Interrogatories Propounded by Defendant Jackson, DeMarco, Tidus & Peckenpaugh, which particularly in response to interrogatories, -,, and contain more detailed statement of facts. Should the court deem any amendment necessary, plaintiffs request leave to amend to state these additional facts. 1 Plaintiffs' Memorandum of Points and Authorities in Opposition to Demurrers of Jackson, DeMarco [etc,]

7 1 The defendant attorneys filed two lawsuits ("the underlying litigation"! on behalf of the SDPOA and the plaintiffs. (Complaint, ~ 1.) One ofthe claims prosecuted by the defendants in the underlying litigation asserted that the City's 00 imposition of heightened eligibility requirements for health insurance after retirement ("retiree health") for SDPOA members, including the plaintiffs, violated the plaintiffs' civil rights in violation of U.S.C.. (Complaint, ~.) In the underlying litigation, the defendants asserted that, because retiree health was a vested benefit, it could not be unilaterally modified by the City. (Complaint, ~ 1.) However, in the underlying litigation, the defendants failed to investigate, discover, present, and argue available factual evidence and legal precedent which would have established that, in fact, retiree health was a vested benefit which the City could not unilaterally impair. (Complaint,. ~ 1.) For example, the defendants failed to present a memorandum from then City.. Manager Ray T. Blair establishing that retiree health was promised by the City in exchange for the plaintiffs' withdrawal from the Social Security system (NOL, Exh. )? Other factual The first was SDPOA, on behalfofitselfand on behalfofall ofits members v. Aguirre, et al., United States District Court for the Southern District of California, Case No. 0 cv-. Because the United States Court of Appeals for the Ninth Circuit titled this case San Diego Pdlice Officers Association v. San Diego City Employees Retirement System in a published opinion (see footnote,post), we will use "SDPOA v. SDCERS" to refer to that case. After the district court ruled that the SDPOA lacked standing to recover damages for the 1,00 individual officers, the defendants filed the second lawsuit with essentially identical allegations in 00-Aaron, et al. v. Aguirre, et ai., United States District Court for the Southern District of California, Case No. 0-cv- ("Aaron"). In 1, the City desired to withdraw from the Social Security System: In order to successfully withdraw from the Social Security System, City employees were required to approve the withdrawal In order to induce its employees to vote in favor of the City's withdrawal from the Social Security system, the City offered its employees lifetime retiree health. In a memorandum dated November 0,, from City Manager Ray T. Blair, Jr., to all City employees, the City promised both retiree hospitalization and medical insurance: "Retired employees will be included in the City health plans. The City will pay the premiums." As the memo explains, in order to opt out of Social Security and Medicare, the City had to agree to provide "another pension plan to supplement your regular City retirement program." At page, paragraph, of the memo, entitled "Entry Date," it states that all existing employees "will be emolled in the Plan as of January, 1." All future employees "will join the Plan immediately on their date ofemployment." (Italics added.) Plaintiffs' Memorandum of Points and Authorities in Opposition to Demurrers ofjackson, DeMarco [etc.]

8 information supporting the contention that retiree health was a vested benefit was also not presented in the underlying litigation. (Complaint, ~ 1. ) As a result ofthe negligence of the defendant attorneys in bringing and poorly prosecuting the retiree health issue, the United States District Court for the Southern District of California and the United States Court ofappeals for the Ninth Circuit ruled that retiree health benefits are not vested. (Complaint, ~ 0.) Relying on those rulings, in late July 00, the City substantially reduced the retiree health benefit by imposing a cap of $,0 per year for any SDPOA member retiring after July 1, 00. (Complaint,~ 1.) According to actuarial analysis, this cap will cost the plaintiff class between $1 and $1 million. (Complaint, ~.) As attorneys for plaintiffs and approximately 1,00 similarly-situated police officers, the defendant attorneys owed a duty to use reasonable care and to discharge their obligations competently.' (Complaint, ~ 0.) The defendant attorneys breached their duties to the plaintiffs and approximately 1,00 similarly-situated police officers in several respects, including but not limited to: "Vesting" is covered at pages and, paragraph, ofthe memo. The Plan provides that benefits were 0% vested after years of service. In the attachment to the memo, entitled "WHAT HAPPENS IF WE PULL OUT OF SOCIAL SECURlTY," beginning at Bate-stamp # SDPOA 0, the City provided questions and answers, which were divided into five categories, including "Medicare Hospital Insurance" and "Medicare Medical Insurance." Question # (page SDPOA 00) asked: "What will the City provide for hospital insurance?" The answer: "The retired employees will be included in the City health plans. The City will pay for the retired employee's health insurance. These costs will not be paid out of the Supplemental Pension Plan." Question # (page SDPOA 00) asked: "What will the City provide for medical insurance?" The answer: "Retired employees will be included in the City health plans. The City will pay the premiums. The cost of the premiums will not come from the Supplemental Pension Plan." Relying on the City's promise, City employees approved the City's withdrawal from the Social Security system and are no longer part ofthat system. In fact, in the underlying litigation, rather than presenting evidence (or legal authority) supporting their assertion that retiree health was a vested benefit, the defendants actually presented adverse evidence, and conceded the issue in their appellants reply brief. (NOL, Exh. 1.) San Diego Police Officers 1 Association v. San Diego City Employees I Retirement System ("SDPOA v. SDCERS") (00) F.d. Plaintiffs' Memorandum of Points and Authorities in Opposition to Demurrers of jackson, DeMarco [etc.]

9 (a) failing to properly advise the plaintiffs and approximately 1,00 similarly-situated police officers regarding the retiree health litigation; 1 1 (b) (c) (d) (e) (f) (g) failing to conduct an adequate investigation on the issue of retiree health before raising it as a claim in the litigation; failing to conduct adequate discovery on the issue ofretiree health once it had been raised in the litigation; failing to competently present available factual evidence and legal precedent which would have established that, in fact, retiree health was a vested benefit which the City could not unilaterally impair; failing to competently argue available factual evidence and legal precedent which would have established that, in fact, retiree health was a vested benefit which the City could not unilaterally impair; failing to request voluntary dismissal ofthe retiree health issue prior to suffering an adverse judgment after it had become clear that insufficient evidence and argument had been presented to have any chance of prevailing on the issue;. concealing (a) through (f), above, while continuing to represent and charge fees to the plaintiffs and approximately 1,00 similarlysituated police officers. (Complaint, ~ 1.). 1 III. A GENERAL DEMURRER TESTS THE LEGAL SUFFICIENCY OF THE FACTUAL ALLEGATIONS IN A COMPLAINT TO STATE A CAUSE OF ACTION. "A demurrer tests the legal sufficiency offactual allegations in a complaint. [Citation.]" (Windham at CarmellWountain Ranch Assn. v. Superior Court (00) Cal.AppAth 1, 1.) In ruling on demurrers, the court must "treat[j the demurrer as admitting all facts properly pleaded." (Aubry v. Tri-City Hospital Dist. (1) CaLth,; Fox v. Ethicon Endo- Surgery, Inc. (00) CaLth,.) "[I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory." (Aubry, supra; Fox, supra.) "And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment." (Aubry, supra; Fox, supra.) III III I I I Plaintiffs' Memorandum ofpoints and Authorities in Opposition to Demurrers of Jackson, DeMarco [etc.]

10 IV. THE PLAINTIFFS HAVE ADEQUATELY ALLEGED CAUSATION AND DAMAGES. A. The Causation Element of a Cause of Action for Negligence Is Ordinarily an Issue of Fact, Not Law. "In a negligence action the plaintiff must show the defendant's act or omission (breach of duty) was a cause of the plaintiffs injury. [Citation.] The element ofcausation generally consists oftwo components. [Citation.] The plaintiff must show (1) the defendant's act or omission was a cause in fact ofthe plaintiffs injury, and () the defendant should be held responsible for negligently causing the plaintiffs injury. [Citation.] The second component," sometimes referred to as proximate causation, "is a normative or evaluative one that asks whether the defendant should owe the plaintiff a legal duty of reasonable care under the circumstances ofthe case. [Citation.]" (Vasquez v. Residential Investments, Inc. (Vasquez) (00) Cal.App.th,.) By demurrer and motion for judgment on the pleadings, the defendants all incorrectly assert that the issue of causation should be decided by this court as a matter oflaw, because the federal courts decided as a matter oflaw in San Diego Police Officers Association v. San Diego City Employees Retirement Systems ("SDPOA v. SDCERS") that the retiree health benefits of San Diego Police Officers are not vested. (JDTP Demurrer, pp. -; Windsor Demurrer, pp. -; Nissen MJOP, p..) Their contention is mistaken, both legally and factually. "The first component ofcausation in fact generally is a question offact for the jury.. Causation in fact is shown if the defendant's act or omission is 'a substantial factor' in bringing about the plaintiffs injury. [Citations.] This issue ordinarily may not be resolved on summary judgment" (Vasques, supra, 1 CaLApp.th at p., italics added), much less by demurrer. It is not a question of law for the court. To the extent the defendants are contending that the plaintiffs are precluded from provingthat the defendants' negligence was a cause oftheir alleged injury (see Section V(B),post), they are mistaken for reasons explained below in Section V(B). The issue is one of law only when the facts are undisputed and orily one conclusion may be drawn. (Lombardo v. Huysentruyt (001) 1 CaLApp.th, ; Arthur v. Santa Monica Dairy Co. (0) Cal.App.d,.) Plaintiffs' Memorandum of Points and Authorities in Opposition to Demurrers of Jackson, DeMarco [etc.]

11 , Furthennore, whether a contractual right is a "vested" retirement benefit that may not constitutionally be altered by legislation is a mixed question of fact and law, not a pure question of law. The federal district court ruling in Aguirre-that there was no triable issue offact regarding whether San Diego Police Officers possessed vested contractual rights to retiree health benefits-was not a ruling oflaw, as the defendants now contend. The issue was decided based upon the defendant City of San Diego's motion for partial summary judgment. Such a motion tests the sufficiency ofthe adverse party's evidence, i.e., whether there are triable issues offact, not the legal sufficiency of its claim. (Fed. Rules Civ.Proc., rule (c)(), U.S.C.) The district court's ruling was based upon the failure of the SDPOA's attorneys-the defendants in this action-to adduce any supporting evidence or persuasive legal authority that the retiree health benefits at issue were vested. (See Section II, ante.) Based upon the deficient evidentiary record made in the district court, the Ninth Circuit understandably affirmed the district court's order. More importantly, the defendants in a legal malpractice action cannot shield themselves from liability by disputing causation based upon on the very adjudication that was the product of that malpractice. (See Section V(B), infra.) That is so whether the adjudication was based upon (1) a negligent failure to introduce evidence to prove a critical fact or () a negligent failure to cite persuasive legal authority on a question of law. The plaintiffs are entitled to prove that, if the defendants had not breached their duty of care in SDPOA v, SDCERS: (1) the federal courts would have ruled that retiree health benefits are "vested" retirement benefits that may not constitutionally be impaired by ordinance and () the City could not, and would not, have capped those benefits by ordinance, as it did in reliance on the Ninth Circuit's opinion in SDPOA v. SDCERS. 1/1 II/ / I I / II/ Plaintiffs' Memorandum of Points and Authorities in Opposition to Demurrers of Jackson, DeMarco [etc.]

12 B. The Plaintiffs Have Alleged Causation and Damages-"But for" the the Defendants' Litigation Malpractice and the Resulting Adverse Adjudication in Federal Court That Retiree Health Benefits of SDPOA Members Are Not Vested, the City of San Diego Could Not, and Would Not, Have Capped Retiree Health Benefits. In their complaint, plaintiffs expressly allege causation: "As a result of the negligence of the defendant attorneys in bringing and in poorly prosecuting the retiree health issue, the United States District Court for the Southern District of California and the United States Court of Appeals for the Ninth Circuit ruled that retiree health benefits are not vested. [~] Relying on those rulings, in late July 00, the City substantially reduced the retiree health benefit by imposing a cap of $&,0 per year for any SDPOA member retiring after July 1,00." (Complaint, ~~ 0-1.) Then, after detailing seven specific negligent acts (Complaint, ~ 1(a)-(g)), the plaintiffs allege: "The conduct of the defendant attorneys described above caused the plaintiffs and approximately 1,00 similarly-situated police officers to sustain damages." (Compla~nt, ~.) As a matter of factual proof, plaintiffs will present evidence that the City actually-relied-and repeatedly touted-its victory in the district court on retiree health as the primary basis on which the 00 cap on retiree health would survive any challenge. Furtherniore, the plaintiffs expressly allege damages: "As the result of the negligence by the defendant attorneys, plaintiffs and approximately 1,00 oftheir similarly-situated fellow officers have already sustained damages in excess of$1 million." (Complaint, ~.) V. THE HOLDING OF FEDERAL COURTS-THAT THE RETIREMENT HEALTH BENEFITS OF SDPOA MEMBERS ARE NOT VESTED-IS THE PRODUCT OF THE DEFENDANTS' MALPRACTICE; THAT HOLDING IS NOT ENTITLED TO PRECLUSIVE EFFECT UNDER THE DOCTRINE OF COLLATERAL ESTOPPEL IN A SUBSEQUENT LEGAL MALPRACTICE CASE. A. The District Court's Summary Judgment in SDPOA v. SDCERS Was Based Upon the Defendants' Failure To Submit Evidence That Retiree Health Benefits Are Vested, Not Upon a Question of Law. The defendants' contention that the adverse ruling in the underlying case-that retiree health was not vested-was inevitable because, "as a matter of law, [retiree health] were not vested" is mistaken. (JDTP Demurrer, 'p. :.) In SDPOA v. SDCERS, supra, F.d, the court explained that if retiree health benefits had been "expressly granted to [employees] by an official declaration of policy during Plaintiffs' Memorandum of Points and Authorities in Opposition to Demurrers of Jackson, DeMarco [etc.]

13 [the employees'] term ofpublic office," those retiree health benefits would be vested, "fundamental and could not be unilaterally terminated." (Id. at pp. -0.) On the other hand, however, ifthe employee benefit at issue were merely "provided for by MOUs between the city and its bargaining groups [the benefits) could not have become permanently and irrevocably vested as a matter ofcontract law, because the benefits were earned on a year-to-year basis under previous MOU's that expired under their own terms..." (Id. at p. 0.) Thus, because the defendants failed to present evidence (see, e.g., NOL, Exhs. 1- [the Ray Blair memo, numerous ordinances and Charter section 1.1 votes]) establishing retiree health benefits had been expressly granted to employees by an multiple official declarations of policy during the employees' term ofpublic office, retiree health would have been determined to have been vested. Indeed,,in granting the City's motion for summary judgment on the retiree health issue, the district court stated: "[The SDPOA] alleges without citation to authority'that retiree health was offered at employment and therefore vested immediately." (NOL, Exh., Order, Doc. No., filed May 1,00 in Case No. 0-cv-, p. 0:-.) "Here, [the SDPOA] has not directed the Court to any authority standing for the proposition that retiree health benefits are vested rights subject to constitutional protection under either the Contracts or Takings Clause." (Id., p. 1: -.) "Accordingly, given the absence of authority to the contrary, Plaintiffs Second and Third Claims under the Contracts and Takings Clauses premised on the modification of retiree health benefits fail." (Id., p. 1 :-.) "In total, Plaintiff has not created an issue oftriable fact as to whether the imposition ofthe LBFO and associated takeaways affected constitutionally protected benefits. Because the evidence and argument submitted by the parties demonstrate that none of the takeaways affected protected pension benefits, but instead affected employment rights, these claims fail." (Id., p. 1 :-1, italics added.) Thus, even at the district court level, the plaintiffs suffered defeat in the underlying case due to their failure to present evidence. Finally, in the appeal ofthis adverse ruling, the defendants, without the knowledge or consent ofthe plaintiffs (or the SDPOA), conceded that retiree health was not vested. (NOL, Exh., Appellant San Diego Police Officers' Association's Consolidated Reply Brief, United States Court of Appeals for the Ninth Circuit, Case No. 0-00, filed May, 00, p. Plaintiffs' Memorandum of Points and Authorities in Opposition to Demurrers of Jackson, DeMarco [etc.]

14 ["post-retirement health benefits is a term and condition of employment that may be renegotiated"]) B. An Adjudication of Fact or Law in a Prior Action Is Not Entitled to Preclusive Effect in a Later Action for Legal Malpractice, Because the Issues Are Not Identical. "It is axiomatic that a defendant cannot be held liable in tort for an injury he or she did not cause." (Brookhouser v. State ofcalifornia (1) CaLAppAth,.) The elements of a legal malpractice action include "a proximate causal connection between the breach and the resulting injury." (Coscia v. McKenna & Cuneo (001) Ca1.th,.) "One who establishes malpractice on the part of his or her attorney in prosecuting a lawsuit must also prove that careful management ofit would have resulted in a favorable judgment..." (DiPalma v. Seidman (1) Cal.AppAth 1, ) Of course, the plaintiffs do not dispute any of those 'fundamental principles. The essential position ofthe defendants is that the plaintiffs cannot allege or prove causation and damages in this legal malpractice action, because the federal courts ruled in SDPOA v. SDCERS that the retiree health benefits of San Diego Police Officers were not vested. Curiously, they do not say what specific legal doctrine (e.g., res judicata, collateral estoppel, judicial estoppel, or law ofthe case) precludes such allegation and proof. In fact, their contention is unsupported by logic and uniformly contradicted by decisional law. As common sense dictates, the defendants cannot shield themselves from litigation malpractice liability by reliance. on the very adjudication that was the product oftheir malpractice. The only doctrine of preclusion that might conceivably be applicable is collateral estoppel, sometimes referred to as issue preclusion. "The doctrine of res judicata gives certain The doctrine of res judicata is inapplicable because the cause of action asserted by the plaintiffs, and the class they represent, in this case (legal malpractice) is not the same as the causes of action asserted by the SDPOA in SDPOA v. SDCERS. ( Witkin, Cal. Procedure (th ed. 00), Judgment, 0, pp. -.) The doctrine oflaw of the case is inapplicable because "the doctrine applies only to a decision of an appellate court in the same case" ( Witkin, op. cit. supra, Appeal, 0, p., and authorities there cited), and this is a different case. The doctrine ofjudicial estoppel is inapplicable because the plaintiffs took no position in SDPOA v. SDCERS that is contrary to any position they take in this case (Swahn Group, Inc. v. Segal {01 0) 1 Cal.AppAth 1,1; Witkin, op. cit. supra, Judgment,, pp. -); indeed, they Plaintiffs' Memorandum of Points and Authorities in Opposition to Demurrers ofjackson, DeMarco (etc.]

15 conclusive effect to a former judgment in subsequent litigation involving the same controversy. It seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration," ( Witkin, Cal. Procedure (th ed. 00) Judgment,, p..) Under the "collateral estoppel" aspect of res judicata, which is sometimes referred to as "issue preclusion" ( Witkin, op. cit, supra, Judgment,, pp. -), relitigation of an issue previously adjudicated is generally precluded if certain criteria are met. "First, the issue sought to be precluded from relitigation must be identical to that decide~ in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be finalan on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. [Citations',]" (Lucido v. Superior Court () 1 Ca1.d,1.) The party asserting collateral estoppel has the burden of establishing these threshold requirements. (Bame v, City ofdel Mar (001) Cal.App.th,.) Ifthe defendants had attempted to meet that burden in preparing their demurrers, they would have realized the doctrine is inapplicable, The first three elements ofthe doctrine are lacking. The issue sought to be precluded in litigation-whether the defendants' professional negligence in prosecuting Aguirre caused the plaintiffs to suffer injury-is not identical to any issue decided in that former proceeding. That issue was neither "actually litigated" nor "necessarily decided" insdpoa v, SDCERS. In Ruffalo v, Patterson () CaLApp.d 1, the sole issue was whether the plaintiff was collaterally estopped by a trial court's characterization of property in a former marital dissolution action from raising issues with respect to the community or separate character of the property in a later legal malpractice action against the attorney who represented her in the martial dissolution proceeding. (Id. at pp. -.) The court explained why the doctrine of collateral estoppel was inapplicable: "The sense of this legal malpractice case is plaintiffs claim were not even parties in SDPOA v, SDCERS. Plaintiffs' Memorandum of Points and Authorities in Opposition to Demurrers of Jackson, DeMarco [etc,]

16 that she was precluded by her attorney's negligence from fully and fairly litigating the character ofthe Fonseca property in the previous dissolution action. Moreover, she does not seek a redetermination as to the character ofthe property; rather, she seeks to recover for her attorney's alleged negligence in instructing and causing her to characterize the property as community property in the dissolution action. Her contention is that the court's decision therein would have been different absent the negligence of her attorney, who is the defendant in this action." The court further held: "To hold otherwise would be to rule that where an attorney's negligence has caused a court to make an erroneous adjudication of an issue, the fact that the court has made that adjudication absolves the attorney of all accountability and responsibility for his negligence. That cannot be and is not the rule..the doctrine of collateral estoppel does not apply. (See, e.g., Smith v. Lewis () Cal.d..., overruled on another point in In re.. Marriage ofbrown () 1 Ca1.d,1, fn. 1,...)" (Ruffalo v. Patterson, supra, Cal.App.d at p. ) The defendants' position here is indistinguishable from the defendants' rejected position in Ruffalo. They 'contend that the federal court's adjudication in SDPOA v. SDCERS-that the retiree health benefits of San Diego Police Officers are not vested contractual rights-precludes the plaintiffs from proving in this subsequent legal malpractice action that the defendants' negligence in that case caused an erroneous adjudication ofthat issue and resulting damages when the City capped their benefits by municipal ordinance. "That cannot be and is not the rule." (Ruffalo v. Patterson, supra, Cal.App.d at p. ; Durkin v. Shea & Gould (th Cir. ) F.d 1, ; see Witkin, op. cit. supra, Judgment,, p. 0.) In Garcia v. Borelli (1) 1 Cal.App.d, the plaintiffs, legatees under a will, sued the attorney who drafted the will for breach offiduciary duty and negligence "in failing to fulfill decedent's testamentary directions prior to his death." (ld. at p..) The trial court granted the attorney's,motion for summary judgment on the ground the plaintiffs could not establish the causation element oftheir action, because they were collaterally estopped from "relitigating any ofthe damage contentions that had been settled, with court approval, in [a probate] proceeding" between the plaintiffs and the decedent's widow. (ld. at p..) Plaintiffs' Memorandum of Points and Authorities in Opposition to Demurrers of Jackson, DeMarco [etc.]

17 On appeal, the plaintiffs asserted the issues in the probate and malpractice actions were not identical, "in that the only issue there concerned [plaintiffs'] entitlements under the will as actually written, while the present lawsuit seeks damages representing the difference between what they received under the settlement and what they would have received under the will and other legal documents as they should have been written in order to carry out the directions and intent of Testator." (Garcia, supra, 1 CaLApp.d at p. 0.) The court reversed the judgment, concluding collateral estoppel was inapplicable. The court explained that an attorney may be responsible to intended beneficiaries who lose their testamentary rights because of his or her negligence in drafting the will, and the "alleged misconduct on the part of [the attorney]... could not possibly have been litigated in the probate court proceeding." (ld. at p..) The same is true here; the efendants' negligence in prosecuting SDPOA v. SDCERS could not have been,.. and was not, actually litigated or decided in that case. (See also Osornio v. Weingarten (00) 1 CaLAppAth 0, [dictum: a "claim of collateral estoppel" asserted in this context "is patently without merit"], citing Garcia; supra.) In Spickler v. York (Spickler) (Me. 1) 0 A.d, the plaintiff sued his attorney for negligently failing to reduce to writing certain terms of a real estate agreement between the plaintiff and a third party seller. The trial court granted the defendant's motion for summary judgment on the ground the plaintiff "was collaterally estopped from litigating the issue of the proximate cause of his damages because of the jury's determination in the original action between the [plaintiff] and [the seller] that [the plaintiff] himself had breached the contract [by defaulting on the mortgage payment], thereby causing the damages he allegedly sustained." (fd at p..) The Supreme Judicial Court of Maine reversed the judgment, explaining: "We find that the issue whether any oral agreements existed between [the seller] and [the plaintiff] that [counsel] failed to memorialize was never specifically submitted to that jury. Because a finding that no such oral agreements existed cannot be inferred from the jury's determination that [the plaintiff] and not [the seller] breached the agreement,... a negligence claim against [counsel] is not precluded as an issue in this subsequent action." (Ibid) The court disagreed that the plaintiff could not show his attorney was a proximate cause of his damages. (Ibid; see also Riccio v. 1 Plaintiffs' Memorandum of Points and Authorities in Opposition to Demurrers of Jackson, DeMarco [etc.]

18 Stein (Fla.App.l0) So.d, ~ [unfavorable judgment in prior foreclosure action did not preclude clients' separate transactional malpractice claims against their attorney].) In short, no adjudication made in SDPOA v. SDCERS can preclude the plaintiffs from proving in this case that: (1) the defendants' negligently prosecuted the issue of the vesting of retiree health benefits in that case; () had the defendants exercised due care, the result would have been different and favorable; and () the City could not, and would not, have imposed a cap on those benefits. The defen~:hints have failed even to address, much less meet, their burden of showing the threshold requirements of collateral estoppel, which include an identity of issues and the actual litigation and necessary adjudication of the issue in the underlying action. As held in Ruffalo v. Patterson, supra, Cal.App.d at p. ), ifthe defendants' causation~preclusion theory were correct, no case of litigation malpractice could reach trial. 1 VI. CONCLUSION 1 Based on the foregoing arguments and authorities, JDTP's and Windsor's demurrers should be overruled, and Nissen's motion for judgment on the pleadings denied. s Dated: July 1,0 LAW OFFICE OF MICHAEL A. CONGER By: If the Court perceives any defect in the complaint, plaintiffs formally request leave to amend. Plaintiffs' Memorandum of Points and Authorities in Opposition to Demurrers of Jackson, DeMarco [etc.]