Sean Tillman v. Renee Tillman et al, No. 2:2009cv02017 - Document 254 (C.D. Cal. 2010)
Court Description: ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT by Judge Virginia A. Phillips: For the foregoing reasons, the Court DENIES the Motion. 173 (am)
Download PDF
<![CDATA[
Sean Tillman v. Renee Tillman et al Doc. 254 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SEAN TILLMAN, 12 13 14 15 ) ) Plaintiff, ) ) v. ) ) RENEE TILLMAN, et al., ) ) Defendants. ) ________________________ ) Case No. CV 09-02017 VAP (RCx) [Motion filed on June 28, 2010] ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 16 17 The Court has received and considered all papers 18 filed in support of, and opposition to, Defendant Renee 19 Tillman's ("Defendant") motion for summary judgment 20 ("Motion"), and has considered the arguments of counsel 21 at the hearing on the Motion held on August 23, 2010. 22 For the reasons set forth below, the Court DENIES the 23 Motion. 24 25 I. BACKGROUND 26 A. Uncontroverted Facts 27 The following material facts are supported adequately 28 by admissible evidence and are uncontroverted. They are Dockets.Justia.com 1 "admitted to exist without controversy" for the purposes 2 of this Motion. See Local Rule 56-3. 3 4 On January 19, 2002, Timmy Wayne Tillman ("Decedent") 5 died in a single-vehicle accident in Riverside County 6 when he became trapped inside his truck after it caught 7 fire. (Second Am. Compl. ("SAC") ¶ 4; Answer ¶ 4; Second 8 Am. Third Party Compl. ("SATPC") ¶ 10; Answer to SATPC ¶ 9 10.) Decedent was survived by his wife Renee Tillman 10 ("Defendant"), as well as Sean Tillman, his son by a 11 previous marriage, and his stepdaughters Brittani Melissa 12 Rose and Briana Tucker.1 13 14 Defendant filed a lawsuit in 2002 in this Court, Case 15 No. 5:03-cv-78 VAP (SGL), against Freightliner, LLC2 for, 16 inter alia, product liability and wrongful death (the 17 "Underlying Action"). Defendant ultimately obtained a 18 judgment of $8,010,000.00 against Freightliner, later 19 reduced to $4,010,368.00 by the Ninth Circuit on appeal. 20 21 22 23 24 25 26 27 1 Although Third Party Defendants Panish, Shea & Boyle LLP (the "Panish Firm") and Kevin Boyle ("Third Party Defendants") dispute the existence of Decedent's child and stepchildren, arguing that Defendant has not provided sufficient evidence of their existence, (see Stmt. of Genuine Issues ("SGI") ¶ 1), the Court hereby takes judicial notice of the existence of Sean Tillman — who is also Plaintiff in this action — and Brittani Melissa Rose and Briana Tucker as facts not subject to reasonable dispute. See Fed. R. Evid. 201(b). 2 Freightliner, LLC is now known as Daimler Trucks 28 North America LLC ("Daimler"). 2 1 No party to the Underlying Action joined Plaintiff 2 Sean Tillman as a party.3 Evidence concerning Plaintiff 3 was presented to the jury in the Underlying Action. 4 (Stmt. of Uncontroverted Facts ¶ 11; SGI ¶ 11.) 5 6 B. Procedural History 7 On March 24, 2009, Plaintiff filed his Original 8 Complaint against Renee Tillman ("Defendant"); Rheingold, 9 Valet, Rheingold, Shkolnik & McCartney, LLP (the 10 "Rheingold Firm"); Paul Rheingold; Hunter J. Shkolnik; 11 and Freightliner, LLC. 12 13 On September 14, 2009, Plaintiff filed his First 14 Amended Complaint against the above-mentioned Defendants, 15 as well as Defendant Terrence McCartney (together with 16 the Rheingold Firm, Hunter J. Shkolnik, and Paul 17 Rheingold, the "Rheingold Defendants"). On October 26, 18 2010, the Court granted the Rheingold Defendants' motion 19 to dismiss the First Amended Complaint, and granted 20 Plaintiff leave to file a Second Amended Complaint. 21 22 Plaintiff filed his Second Amended Complaint on 23 November 6, 2009, asserting claims against Defendant for 24 "fraud, deceit and/or concealment" and "intentional 25 26 3 The identity of parties to the Underlying Action is a matter of public record, of which the Court can — and 28 does — take judicial notice. 27 3 1 breach of duty," and against Daimler4 for wrongful death, 2 product liability, and negligence. On December 17, 2009, 3 the Court granted Defendant's motion to dismiss 4 Plaintiff's claim for "fraud, deceit, and/or 5 concealment." On July 6, 2010, Plaintiff and Daimler 6 filed a notice of settlement of Plaintiff's claims 7 against Daimler, and on July 16, 2010, the Court approved 8 a stipulation of dismissal of Plaintiff's claims against 9 Daimler. On August 10, 2010, the Court granted the 10 Panish Firm's motion for summary judgment and dismissed 11 Plaintiff's sole remaining claim with prejudice. 12 13 Defendant separately filed a Third Party Complaint 14 against her attorneys in the Underlying Action, the 15 Rheingold Firm; the Panish Firm; Greene, Broillet, & 16 Wheeler, LLP (the "Greene Firm"); and Kevin Boyle. 17 Defendant filed a First Amended Third Party Complaint on 18 February 9, 2010, and a Second Amended Third Party 19 Complaint on May 24, 2010, asserting claims against these 20 same third party defendants for (1) negligence - legal 21 malpractice; (2) return of an unconscionable fee; and (3) 22 fiduciary fraud. Defendant's claim for legal malpractice 23 arises out of the failure to join Plaintiff as a party to 24 the Underlying Action. 25 26 4 Plaintiff again named "Freightliner, LLC" in his Second Amended Complaint despite the change in that 28 entity's name. 27 4 1 On June 28, 2010, Defendant filed this Motion for 2 Summary Judgment ("Motion"), and noticed a hearing for 3 August 23, 2010. The Greene and Panish Firms' 4 Oppositions and Defendant's Reply were filed timely.5 5 6 7 II. LEGAL STANDARD A motion for summary judgment shall be granted when 8 there is no genuine issue as to any material fact and the 9 moving party is entitled to judgment as a matter of law. 10 Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 11 477 U.S. 242, 247-48 (1986). The moving party must show 12 that "under the governing law, there can be but one 13 reasonable conclusion as to the verdict." Anderson, 477 14 U.S. at 250. 15 16 Generally, the burden is on the moving party to 17 demonstrate that it is entitled to summary judgment. 18 Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998); 19 Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 20 F.2d 1030, 1033 (9th Cir. 1983). The moving party bears 21 the initial burden of identifying the elements of the 22 claim or defense and evidence that it believes 23 demonstrates the absence of an issue of material fact. 24 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 25 5 Defendant additionally filed objections to evidence submitted by the Panish Firm in opposition to Defendant's 27 Motion. The Court does not rely on any such evidence in considering the Motion, however. Accordingly, 28 Defendant's objections are moot. 26 5 1 Where the non-moving party has the burden at trial, 2 however, the moving party need not produce evidence 3 negating or disproving every essential element of the 4 non-moving party’s case. Id. at 325. Instead, the 5 moving party’s burden is met by pointing out that there 6 is an absence of evidence supporting the non-moving 7 party’s case. Id. The burden then shifts to the non- 8 moving party to show that there is a genuine issue of 9 material fact that must be resolved at trial. Fed. R. 10 Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 11 U.S. at 256. The non-moving party must make an 12 affirmative showing on all matters placed in issue by the 13 motion as to which it has the burden of proof at trial. 14 Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 252. See 15 also William W. Schwarzer, A. Wallace Tashima & James M. 16 Wagstaffe, Federal Civil Procedure Before Trial § 14:144 17 (2010). A defendant has the burden of proof at trial 18 with respect to any affirmative defense. Payan v. 19 Aramark Mgmt. Servs. Ltd. P'ship, 495 F.3d 1119, 1122 20 (9th Cir. 2007). 21 22 A genuine issue of material fact will exist "if the 23 evidence is such that a reasonable jury could return a 24 verdict for the nonmoving party." 25 248. Anderson, 477 U.S. at In ruling on a motion for summary judgment, the 26 Court construes the evidence in the light most favorable 27 to the non-moving party. Barlow v. Ground, 943 F.2d 28 6 1 1132, 1135 (9th Cir. 1991); T.W. Elec. Serv. Inc. v. Pac. 2 Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 3 1987). 4 5 III. DISCUSSION 6 Through this Motion, Defendant seeks (1) summary 7 judgment of Plaintiff's claims against her; (2) summary 8 adjudication of the question of whether the Green and 9 Panish Firms breached their duty to her; and (3) summary 10 adjudication of Daimler's "waiver of the one action 11 rule." The Court already has dismissed Plaintiff's 12 Second Amended Complaint with prejudice; accordingly, to 13 the extent Defendant seeks summary judgment as to 14 Plaintiff's claims against her, her Motion is moot. 15 Furthermore, Defendant has not asserted any claims 16 against Daimler, and the Court has already dismissed 17 Daimler's cross-claims against her without leave to 18 amend. (Docket No. 109.) Accordingly, no claims or 19 defenses exist between Defendant and Daimler for the 20 Court to adjudicate. Therefore, the only issue presented 21 to the Court in this Motion is whether or not the Third 22 Party Defendants were negligent in their representation 23 of Defendant in the Underlying Action. 24 25 "A legal malpractice action is . . . composed of the 26 same elements as any other negligence claim, i.e., 'duty, 27 breach of duty, proximate cause, and damage.'" 28 7 Osornio 1 v. Weingarten, 124 Cal. App. 4th 304, 319 (2004). "In 2 negligence cases arising from the rendering of 3 professional services, as a general rule the standard of 4 care against which the professional's acts are measured 5 remains a matter peculiarly within the knowledge of 6 experts. Only their testimony can prove it, unless the 7 lay person's common knowledge includes the conduct 8 required by the particular circumstances." Unigard Ins. 9 Group v. O'Flaherty & Belgum, 38 Cal. App. 4th 1229, 1239 10 (1995); see also Wilkinson v. Rives, 116 Cal. App. 3d 11 641, 648 (1981) (holding that where there was no expert 12 testimony on the standard of care and an attorney's 13 performance in relation to that standard, there was "no 14 evidence from which the trier of fact could have found 15 negligence"). 16 17 Defendant has provided the Court with no expert 18 testimony concerning either the standard of care or the 19 Third Party Defendants' performance in relation to that 20 standard. Accordingly, she fails to meet her burden of 21 showing she is entitled to summary adjudication on the 22 issue of whether or not these firms breached their duty 23 of care in representing her in the Underlying Action. 24 25 Defendant's argument that she is not required to 26 present expert testimony because the Third Party 27 Defendants' breach of duty is so clear that as to be 28 8 1 easily understood by a lay person is unpersuasive. 2 Reply at 7:15–8:16.) (See A lay person's common knowledge 3 includes neither the duty to join all heirs in a single 4 action for wrongful death, nor the steps that reasonably 5 competent counsel should undertake in performing that 6 duty. Accordingly, expert testimony is necessary as to 7 both the standard of care and whether or not the Panish 8 and Greene Firms' conduct breached that standard. See 9 Unigard, 38 Cal. App. 4th at 1239; Wilkinson, 116 Cal. 10 App. 3d at 648 . 11 12 13 IV. CONCLUSION For the foregoing reasons, the Court DENIES the 14 Motion. 15 16 17 Dated: September 2, 2010 18 VIRGINIA A. PHILLIPS United States District Judge 19 20 21 22 23 24 25 26 27 28 9
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
