Filed 8/24/20 Sturm v. McDowell Forester Associates CA2/7
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN


TIMOTHY J. STURM,                                               B288399

         Plaintiff and Appellant,                               (Los Angeles County
                                                                Super. Ct. No. BC591112)
         v.

MCDOWELL FORSTER
ASSOCIATES et al.,

         Defendants and Respondents.




      APPEAL from a judgment of the Superior Court of
Los Angeles County, Richard E. Rico, Judge. Affirmed.
      Timothy J. Sturm, in pro. per.; Law Office of Cliff Dean
Schneider, Cliff Dean Schneider, Tiffany Schneider; Law Offices
of Michael C. Murphy and Michael C. Murphy for Plaintiff and
Appellant.
      Lewis Brisbois Bisgaard & Smith and H. Gilbert Jones for
Defendants and Respondents.
       Timothy Sturm appeals from a judgment entered after the
trial court granted the summary judgment motion filed by
attorneys Lonnie McDowell and McDowell Forster Associates
(collectively, McDowell). Sturm sued McDowell for legal
malpractice in connection with its representation of Sturm in
prosecuting a legal malpractice action against Sturm’s previous
lawyers, who in turn represented Sturm in an administrative
appeal and settlement relating to his termination from public
employment. On appeal, Sturm contends (1) the trial court erred
in sustaining McDowell’s demurrer to four causes of action in
Sturm’s first amended complaint without leave to amend; (2) the
court erred by denying Sturm’s ex parte application to continue
the hearing on McDowell’s summary judgment motion; and
(3) the court erred in granting summary judgment because
McDowell did not meet its burden to prove there were no issues
of triable fact. We affirm.

      FACTUAL AND PROCEDURAL BACKGROUND

A.    Sturm’s Employment and Disciplinary Proceedings1
      Sturm was employed by the Los Angeles County Probation
Department (Department) from February 15, 1975 to June 3,
2010. In May 2008 Sturm was suspended for 10 days following
an incident in 2007 when he accidentally struck the forehead of a
ward at the juvenile offender facility where Sturm was working.
Sturm appealed the suspension to the Los Angeles County Civil

1     The factual background is taken from the evidence
submitted by the parties in connection with McDowell’s motion
for summary judgment. We indicate where the evidence is in
dispute.




                                2
Service Commission (Commission). After a hearing on July 1,
2009 at which Sturm was represented by a lawyer provided by
his union, the Commission sustained the suspension.
      On April 7, 2009 Sturm was involved in a more serious
incident where he forcibly removed a ward from a bathroom stall.
In his opposition separate statement, Sturm admitted his conduct
“could be interpreted as a ‘technical’ violation” of Department
regulations that required an officer to request assistance during
an escalated encounter and obtain approval before using force.
On March 31, 2010 the Department issued Sturm a notice of
intent to discharge for misuse of force and failure to exercise
sound judgment.2 The Department set a Skelly3 hearing for
May 19, 2010.
      Sturm consulted his nephew Derek Newman, who was an
attorney, concerning the threat of discharge, and Newman
referred Sturm to Newman’s law partner, John Du Wors, who
specialized in employment matters. Sturm met with Du Wors on
April 12, 2010 to discuss the matter, but Sturm did not request
Du Wors represent him.
      The day before the Skelly hearing, Sturm contacted the
Department to request permission to record the hearing and
examine the Department’s files. The Department denied Sturm’s


2     The notice of intent to discharge was based on the 2009
incident, but it noted Sturm had been previously disciplined for
inappropriate use of force and failure to follow procedures in
connection with the 2007 incident.
3      In Skelly v. State Personnel Board (1975) 15 Cal.3d 194, the
Supreme Court held a civil service employee has a due process
right to be informed and respond to allegations prior to
disciplinary action by his or her employer.




                                3
request. Sturm then contacted Du Wors and asked Du Wors to
represent him at the hearing. Du Wors responded that he could
not properly prepare and appear on behalf of Sturm the next day,
and he advised Sturm to request a continuance. Sturm did not
request a continuance and did not appear at the hearing.
Because the notice of intent to discharge was not opposed, the
Department terminated Sturm’s employment effective June 4,
2010.

B.     Appeal of the Termination and Settlement
       In January 2011 Sturm retained Newman, Du Wors, and
Newman’s law firm (collectively, Newman) to represent him in an
appeal of his termination to the Commission (the termination
appeal). After a three-month continuance to accommodate
Du Wors’s availability, the Commission set a hearing on Sturm’s
appeal for July 11, 2011. On the day of the hearing, Du Wors and
the Department’s attorney negotiated a settlement, the outline of
which was put on the record at the hearing.4 The terms of the
settlement included the Department rescinding its termination
and reinstating Sturm effective July 12, 2011; Sturm agreeing to
retire by September 30, 2011; payment of four months and
10 days of back pay and benefits; future pay until Sturm’s
retirement on September 30, 2011 with benefits determined


4     Prior to negotiating the settlement, the hearing officer
heard argument on the scope of the evidence to be presented at
the hearing. Sturm sought to introduce evidence related to the
2007 incident and Sturm’s 2008 suspension, which the
Department opposed. The hearing officer excluded the evidence
unless there was testimony Sturm’s 10-day suspension in 2008
was a factor in his 2009 suspension.




                               4
“according to county code”; and a letter of commendation for
Sturm’s lengthy service.
       Over the next several months, Du Wors and the
Department’s attorney finalized a written settlement agreement,
which Sturm signed on November 3, 2011. The settlement
agreement provided the Department would rescind Sturm’s
discharge effective June 3, 2010 and Sturm would be “made
whole” for four months and 10 days of service from June 3 to
October 12, 2010 “in accordance with applicable provisions of
County Code.” Sturm would be reinstated to his prior position
effective July 12, 2011; however, “Sturm’s assignment from his
reinstatement on July 12, 2011, until his retirement from the
Department and County service on September 30, 2011, will be at
the discretion of the [Department].” Sturm would receive a letter
of commendation upon retirement. Sturm agreed to withdraw
his administrative appeal and waive future administrative and
judicial remedies relating to his discharge.
       By early 2012 Sturm believed the Department and its
retirement benefits administrator, the Los Angeles County
Employees Retirement Association (LACERA), were refusing to
honor the settlement agreement. LACERA delayed paying
Sturm retirement service credit for the four months and 10 days
for which he was awarded back pay under the settlement
agreement (June 3, 2010 through October 12, 2010), and it
rejected Sturm’s demand it pay him for the entire 15 months
from the date of Sturm’s discharge to his retirement (from
June 3, 2010 through September 30, 2011). Sturm requested
Du Wors’s assistance in enforcing the settlement agreement, to
which Du Wors responded, “We would be pleased to assist you in
enforcing the agreement by contacting the opposing lawyer




                               5
and/or initiating arbitration. But I have two concerns. First, you
expressed dissatisfaction with our services. . . . [¶] Second, you
have a substantial unpaid balance with our firm. We cannot
work for free. If you pay the outstanding invoice—and you
believe that we are the best firm for you—then we’d be pleased to
assist you in enforcing the settlement agreement.”
      On March 16, 2012 Sturm filed a client petition for
arbitration with the Los Angeles County Bar Association,
disputing fees of more than $30,000 billed by Newman.

C.     Fee Arbitration and Malpractice Lawsuit
       In late 2012 Sturm engaged McDowell to represent him in
the fee arbitration against Newman, to enforce the settlement
agreement against the Department, and to represent him in a
potential malpractice action against Newman. The parties’
retainer agreement stated, “Client understands that no
representation has been made that a cause of action for [l]egal
[m]alpractice against John DuWors, DuWors & Newman, and/or
Newman & Newman has been established. Attorney and [c]lient
will evaluate said [l]egal [m]alpractice claim to determine
whether or not to go forward. Attorney is only filing said
complaint now to ensure compliance with the [s]tatute of
[l]imitations in this case.” The retainer agreement expressly
excluded “[r]e-litigation of the underlying case in this action.”

       1.     Newman fee arbitration
       The attorney fee arbitration took place on January 11,
2013. Newman sought $30,491.15, consisting of $40,491.15 in
billed fees, costs, and interest, less a $10,000 retainer paid by
Sturm. Sturm, represented by McDowell, contended Sturm owed




                                6
nothing beyond the retainer because of Newman’s inadequate
performance and improper billing. In its statement of decision,
the arbitrator found “the billing statements contain some
improper, excessive, and duplicative charges” and Newman was
not entitled to interest, and held Sturm owed the firm
$17,799.47, a reduction of 43 percent from what Newman
claimed. With respect to the underlying representation, the
arbitrator found the Department’s “offer of reinstatement—the
result of Wors’ discussion with [the Department attorney] about
the strong points in Sturm’s case—was an outstanding
accomplishment especially since it was achieved so early in the
case when the cost of representation was still relatively low.”
“The terms of the settlement agreement were also impressive,”
and the “nonmonetary settlement benefits were also of
considerable value.” Although the terms of the written
settlement “varied slightly” from the oral agreement by providing
for back pay from June 3 to October 12, 2010 (instead of four
months and 10 days), the variance favored Sturm.5 The
arbitrator also found Du Wors properly counseled Sturm to settle
the termination appeal because Sturm’s asserted goal to expose
corruption in the Department could not be achieved at the
Commission hearing. The arbitrator further found the fact
“LACERA and the Department have refused to honor the
settlement agreement does not affect the value of the [f]irm’s
work. . . . [T]he [f]irm is not to blame for the intransigence of
LACERA and the Department.” The arbitrator made further
findings Newman did not unreasonably seek a continuance of the

5     It is not clear what variation the arbitrator was
referencing. By our math, back pay from June 3 to October 12,
2010 is the equivalent of payment for four months and 10 days.




                                7
Commission hearing and did not unjustifiably delay in concluding
the settlement agreement. To the contrary, Sturm delayed two
months after the hearing “to search for ways to get out of it and
attempted to retain other attorneys to accomplish that objective.”

       2.    Malpractice action against Newman
       On October 12, 2012 McDowell filed a complaint on behalf
of Sturm against Newman (Sturm v. John DuWors et al. (Super.
Ct. Los Angeles County, 2012, No. BC 493608) (Newman action).
The operative first amended complaint asserted causes of action
for legal malpractice and breach of fiduciary duty, alleging
Newman failed adequately to prepare for the Commission
hearing, improperly delayed the Commission hearing and
execution of the settlement agreement, misled Sturm about the
scope and nature of the representation, and failed to perform due
diligence in ascertaining whether LACERA or the Department
had the power to bind the Department as to payment of benefits.
       On May 23, 2014 Newman filed a motion for summary
judgment in which it argued Sturm was unable to prove a breach
of the standard of care or to show damages and causation.
McDowell submitted with its opposition the declaration of
attorney Lawrence Jacobson as an expert on legal malpractice.
Jacobson stated in his declaration, “[I]t appears undisputed that
in order to be enforceable the settlement agreement had to
include and be consented to and signed by [LACERA]. Failing to
include a necessary party either by inadvertence, oversight or a
failure to properly research the law to determine who the
necessary parties would be, falls below the standard of care.”
Jacobson also opined Du Wors “fell below the standard of care by
not familiarizing himself with the specific statutory provisions




                                8
relating to a Probation Officer in Los Angeles County. Any
expert in any highly specified area would be expected to be
familiar with who would be the necessary parties to a settlement
agreement in a dispute within that area of expertise.”
        Newman submitted with its reply the declaration of Dennis
Carroll, the Department executive responsible for Sturm’s
discipline for the 2009 incident. Carroll declared that had Sturm
not settled with the Department, Carroll was prepared to testify
at the Commission hearing that Sturm’s termination was
appropriate. Carroll stated, “If Mr. Sturm had not accepted our
‘last, best and final’ offer, we were prepared to proceed to a
hearing on the merits and we were confident the hearing officer
would uphold the decision to discharge Mr. Sturm.” Carroll
further stated, “I have reviewed and approved settlement
agreements in the past and LACERA is never a party and does
not need to be. This is true even when the settlement
agreements contemplate a retroactive retirement, which is not
uncommon.” Newman also submitted the declaration of attorney
Daniel Carmichael, who negotiated the settlement on behalf of
the Department. Carmichael declared, “[T]he Department would
never have agreed to [full back pay] as part of a settlement
because it does not represent a compromise on the employee’s
part. (The best the employee can do at the hearing is obtain
reinstatement and full back pay, so there is almost never any
reason to agree to that in a settlement in general.) And, to be
clear, the Department would not have agreed to it in Mr. Sturm’s
case because we believed we were likely to prevail if the hearing
were actually held.” Carmichael believed the Department’s case
for Sturm’s termination was strong because Sturm had admitted
he violated Department policy, refused to take responsibility for




                                9
his actions, and argued his actions were justified. Carmichael
also stated, like Carroll, “I have negotiated and reviewed dozens
of settlement agreements and LACERA is never a party and does
not need to be. . . . The date of retirement for LACERA is the
date when an employee submits a letter to LACERA indicating
he is retiring.”
       After a hearing, on August 20, 2014 the trial court6 issued a
five-page order granting the summary judgment motion. The
court found, “The admissible evidence contained in [Sturm’s]
declaration does not establish causation or damages. . . .
[¶] [Sturm] has not presented any evidence of what a reasonable
settlement would have been or that such allegedly reasonable
terms would have been agreed to by the County. [Sturm] cannot
demonstrate that but for the negligence of [d]efendants, the
result of [the Commission] hearing would have resulted in a
higher settlement with the County or a better result had [Sturm]
proceeded with his hearing.” The court also found Jacobson’s
expert declaration in opposition was “largely without foundation.”
“For example, [Jacobson] opines without any foundation that the
settlement agreement in issue is not an enforceable settlement
agreement. . . . Nothing in the evidence suggests that the signed
settlement agreement is, in fact, unenforceable; the expert’s
statement is conclusory. Moreover, Plaintiff’s expert relied upon
nothing other than various unverified pleadings in reaching his




6   Judge Mitchell L. Beckloff presided over the Newman action.




                                 10
opinions.” The court entered judgment for Newman on
September 9, 2014.7

D.     Malpractice Lawsuit Against McDowell
       1.     Complaint and demurrer
       On August 12, 2015 Sturm, representing himself, filed this
action, asserting causes of action against McDowell for legal
malpractice, breach of fiduciary duty, fraud and concealment,
fraud and intentional misrepresentation, and intentional
infliction of emotional distress (IIED). After the trial court8
sustained McDowell’s demurrer with leave to amend, Sturm filed
a first amended complaint asserting the same five causes of
action with more detailed allegations. McDowell again demurred
to the second through fifth causes of action on the same grounds
as the first demurrer.
       On June 27, 2016 the trial court sustained the demurrer to
the second through fifth causes of action without leave to amend.
The court held the second cause of action “pleads no breach of
duty other than the alleged failure to prosecute Plaintiff’s three
claims properly. . . . As such, the alleged breach of fiduciary duty
action is subsumed in the legal malpractice claim.” As to the
third and fourth causes of action, the court held Sturm failed to
state additional facts “to establish the necessary how, when,
where, and to whom” to support his fraud claims. Finally, as to
the fifth cause of action for IIED, the court found Sturm failed to


7    Sturm appealed from the judgment, but the appeal was
dismissed for failure to procure the record on appeal. (Rules of
Court, rule 8.140(b).)
8     Judge Richard E. Rico presided over this action.




                                 11
allege sufficiently intentional or affirmative misconduct or any
injury other than the financial loss from his attorney’s
malpractice.

      2.     McDowell’s summary judgment motion and Sturm’s
             ex parte application for a continuance
      On September 11, 2017 McDowell filed a motion for
summary judgment on the remaining claim for legal malpractice.
McDowell’s principal argument was that Sturm could not show
causation because he could not “demonstrate to a legal certainty
either that his underlying claim against his former attorneys
was viable, or that [McDowell’s] alleged negligence caused him
damage.” McDowell filed a separate statement, exhibits, and
declarations from Lonnie McDowell and Linda Savitt, an expert
on legal malpractice. McDowell noticed the hearing for
December 6, 2017.
      On November 8, 2017, two weeks before Sturm’s opposition
was due, Sturm filed an ex parte application to continue the
hearing from December 6, 2017 “to May, 2018, or later,” or in the
alternative, to shorten the time in which to hear a motion to
continue the hearing. In his supporting declaration, Sturm
explained his grounds for a continuance: “[T]rial in my related
case, Case No. MC025485 has been continued to March 16, 2018,
due to scheduling conflicts of attorneys and to incomplete
discovery. . . . [¶] 3. . . . [¶] 4. . . . [¶] 5. . . . [¶] 6. . . . I have
been focusing most of my time and effort trying to retain my
counsel by responding to and writing motions, appearing in court,
or looking for alternate counsel and completing additional
inspection demands, motions to compel and preparing for and
conducting additional depositions in this case and the related




                                    12
case.”9 Sturm added, “I still have a few witnesses yet to depose.
If I prevail in the related case, I have a greater chance of
retaining an attorney for this instant malpractice case. If I retain
counsel in this case in the future, the attorney may want to
depose additional witnesses in preparation for trial.” Sturm did
not identify any particular witnesses or explain what testimony
they would provide.
       Sturm also declared, “[T]he crux of [McDowell’s] motion for
summary judgment is their belief that if I cannot obtain a better
result at trial [then] my case should be dismissed. Obviously,
resolution of my related case will answer that concern. For that
reason, I am asking the Court to continue the motion for
summary judgment in this case from December 6, 2017, to a date
in May, 2018. That will give me adequate time to focus on and
prepare for trial in the related case and a small window of time to
prepare the opposition to the motion for summary judgment in
this case.”
       On November 8, 2017, the trial court granted Sturm’s
alternative request for relief and set a hearing on Sturm’s
application for a continuance for December 1, 2017. McDowell
filed an opposition to Sturm’s application, arguing Sturm had

9     On our own motion, we take judicial notice of the operative
third amended complaint and trial court docket in Sturm v.
County of Los Angeles Department of Probation (Super. Ct. Los
Angeles County, 2015, No. MC025485) (Dept. of Probation
action). (Evid. Code, § 452, subd. (d).) In that case Sturm asserts
claims against the Department for breach of contract and
rescission of the settlement agreement. Although Sturm filed a
notice of related case in both this action and in the Dept. of
Probation action, the dockets do not reflect an order relating the
actions.




                                13
conducted minimal discovery during the two years the case had
been pending and Sturm had been on notice for five months of
the December 6 hearing date. McDowell also argued Sturm did
not identify the additional discovery he sought other than
Sturm’s conclusory statement he still had “a few witnesses yet to
depose.”
       On December 1, 2017 the trial court denied Sturm’s
requested continuance, finding “[t]he moving papers fail to
discuss any supportive legal authority. Rather, [Sturm] contends
that this action should be set after trial in the related case
(MC025485) due to ‘scheduling conflicts of attorneys and to
incomplete discovery.’ . . . This action was filed in August 2015
and [Sturm] should not wait until a summary
judgment/adjudication motion to conduct key discovery.”
Although the court denied Sturm’s request to continue the
hearing to May 2018, it continued the hearing to January 3, 2018
and allowed Sturm until December 18, 2017 in which to file his
opposition.
       Sturm filed his opposition on December 18, supported by
his own declaration and exhibits. In his declaration Sturm stated
why he believed McDowell was negligent in its handling of the
Newman action and why Sturm was entitled to more back pay
than what he obtained under the settlement agreement. But
Sturm failed to submit any declarations or documents to support
his conclusory statements McDowell was negligent, nor did he
present any evidence why he would have achieved a better result
in the termination appeal had Newman provided adequate
representation. For example, Sturm declared, “The assertion by
McDowell that I did not attend the Skelly hearing and therefore,
failed to make a record of my potential defenses is false. . . . The




                                14
Skelly hearing was going to be a kangaroo court. I had been
collecting documents since 2007 that proved that I was being
framed and was being denied due process. I have volumes of
evidence to prove my case against the County as well as my case
against the Defendants.”
       McDowell filed a reply memorandum and evidentiary
objections on December 22, 2017.10 Sturm filed an unauthorized
surreply on December 27.

       3.    Trial court ruling
       After a hearing, on January 4, 2018 the trial court issued a
five-page ruling granting McDowell’s summary judgment motion.
The court identified several defects in Sturm’s opposition: Sturm
failed to provide any authentication for most of the documents
submitted with his opposition; Sturm relied exclusively on his
own declaration to refute the declarations of McDowell and Savitt
but failed to establish a foundation for the exhibits cited in his
opposition; Sturm’s testimony that McDowell failed to research
whether LACERA was a necessary party was speculative and
lacked personal knowledge; and Sturm’s separate statement was
defective under California Rules of Court, rule 3.1350(f) in that it

10    Although the trial court at the hearing made general
statements about Sturm’s exhibits and portions of his declaration
being inadmissible, it did not specifically rule on McDowell’s
evidentiary objections. Where the trial court fails to rule on
evidentiary objections in the context of a summary judgment
motion, on appeal we presume the objections have been
overruled, with the objector having the burden to renew its
objections in the Court of Appeal. (Reid v. Google, Inc. (2010)
50 Cal.4th 512, 534.) Neither party asserts an argument on
appeal relating to McDowell’s evidentiary objections.




                                15
did not include McDowell’s moving evidence and did not include
specific cites to Sturm’s evidence by page and line numbers.
Based on these defects, the trial court found Sturm’s “responsive
papers carry no evidentiary value.”
      The trial court found McDowell met its burden to show
Sturm could not establish a “proximate causal connection
between the negligent conduct and the resulting injury”
necessary to prove malpractice. As framed by the complaint,
Sturm alleged McDowell failed properly to prosecute the fee
arbitration against Newman; enforce the settlement agreement
with the Department; and prosecute the Newman action. As to
the fee arbitration, the court found the evidence showed
McDowell obtained a favorable outcome in the 43 percent
reduction of the fees claimed by Newman, and Sturm’s assertion
McDowell was unprepared was speculative and lacked merit. As
to the settlement agreement, the court found Sturm had received
the funds specified in the agreement with back pay, and his
“unsupported belief that he was shortchanged do[es] not
represent a disputed material fact.” Finally, with respect to the
Newman action, the court found “the evidence establishes that
[Sturm] failed to appear at the underlying termination hearing
against the county, limiting the grounds upon which [he] could
argue. . . . Further, there can be no possible damages arising
from [McDowell’s] effort to settle the underlying malpractice
claim against Newman.” The court granted the motion and
entered judgment for McDowell on January 11, 2018.
      Sturm timely appealed.




                               16
                          DISCUSSION

A.     The Trial Court Did Not Err in Sustaining the Demurrer to
       the First Amended Complaint Without Leave to Amend
       Sturm contends the trial court erred in sustaining
McDowell’s demurrer as to four of the five causes of action
alleged in the first amended complaint because he had pleaded
one viable claim, and therefore “the [c]ourt was required to
overrule the general demurrer and allow all of the causes of
action to proceed.” Sturm is fundamentally mistaken as to the
nature of demurrer, which countenances disposition of some but
not all claims in a complaint. Rules of Court, rule 3.1320(b)
specifically addresses a “[d]emurrer not directed to all causes of
action,” and provides, “A demurrer to a cause of action may be
filed without answering other causes of action.” Rules of Court,
rule 3.1320(a) states, “Each ground of demurrer. . . must state
whether it applies to the entire complaint, . . . or to specified
causes of action or defenses.” (Italics added.) Here, consistent
with the Rules of Court, McDowell demurred only to the second,
third, fourth, and fifth causes of action of the first amended
complaint. McDowell did not challenge, and the trial court did
not address, the sufficiency of Sturm’s first cause of action for
legal malpractice.
       Sturm’s reliance on Mills v. Mills (1956) 147 Cal.App.2d
107 is misplaced. Although Sturm accurately cites the language
in Mills that “[a] general demurrer to a complaint containing
more than one count should be overruled if there is a good count
stating a cause of action,” that sentence is in the context of the
Court of Appeal’s conclusion that the trial court erred in entering
a judgment of dismissal where two viable counts remained. (Id.




                                17
at p. 124.) Here, the trial court correctly allowed the viable claim
for legal malpractice to proceed.
       Sturm does not assert any argument in his opening brief or
reply concerning the sufficiency of the dismissed causes of action,
nor does Sturm argue he was entitled to leave to amend. Sturm
has therefore forfeited these issues. (Tiernan v. Trustees of Cal.
State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4
(Tiernan) [“Plaintiff has not raised this issue on appeal, however,
and it may therefore be deemed waived.”]; Sierra Palms
Homeowners Assn. v. Metro Gold Line Foothill Extension
Construction Authority (2018) 19 Cal.App.5th 1127, 1136 (Sierra
Palms) [appellant forfeited challenge to issue not raised on
appeal].)

B.    The Trial Court Did Not Abuse Its Discretion in Denying
      Sturm’s Request for a Continuance
      Sturm contends the trial court erred in denying his
application to continue the hearing on McDowell’s summary
judgment motion from December 6, 2017 to May 2018 or later
because he demonstrated good cause for a continuance under
Code of Civil Procedure section 437c, subdivision (h),11 and the
court’s general discretion to grant a continuance. The trial court
did not abuse its discretion, especially in light of its
approximately one-month extension of Sturm’s deadline to file an
opposition (continuing the hearing from December 6, 2017 to
January 3, 2018).




11   All further undesignated statutory references are to the
Code of Civil Procedure.




                                 18
       Section 437c, subdivision (h), provides, “If it appears from
the affidavits submitted in opposition to a motion for summary
judgment or summary adjudication, or both, that facts essential
to justify opposition may exist but cannot, for reasons stated, be
presented, the court shall deny the motion, order a continuance to
permit affidavits to be obtained or discovery to be had, or make
any other order as may be just.” The party opposing summary
judgment who seeks a continuance must show: “‘“(1) the facts to
be obtained are essential to opposing the motion; (2) there is
reason to believe such facts may exist; and (3) the reasons why
additional time is needed to obtain these facts.”’” (Jade Fashion
& Co., Inc. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th
635, 656 (Jade Fashion) [affirming trial court denial of
continuance where declaration supporting request did not show
specific facts that could be obtained by deposing witness or why
facts were essential to opposition]; cf. Chavez v. 24 Hour Fitness
USA, Inc. (2015) 238 Cal.App.4th 632, 643-644 (Chavez) [trial
court abused its discretion in denying request for continuance to
depose witness where “[i]t was apparent from the summary
judgment briefing that [the witness] likely possesse[d] unique
knowledge regarding the primary dispute”].) “‘The party seeking
the continuance must justify the need, by detailing both the
particular essential facts that may exist and the specific reasons
why they cannot then be presented.’” (Chavez, at p. 643; accord,
Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 [“‘It is not
sufficient under the statute merely to indicate further discovery
or investigation is contemplated. The statute makes it a
condition that the party moving for a continuance show “facts
essential to justify opposition may exist.”’”].) We review a trial
court’s decision whether to grant a continuance under




                                19
section 437c, subdivision (h), for an abuse of discretion. (Jade
Fashion, at p. 656; Chavez, at p. 643.)
       Sturm’s declaration in support of his request for a
continuance failed to meet the requirements of section 437c,
subdivision (h). Sturm stated in his declaration he had “a few
witnesses to depose” and if he could retain an attorney in the
future, “the attorney may want to depose additional witnesses in
preparation for trial.” Sturm did not identify the witnesses he
sought to depose, the facts he believed the depositions would
reveal, or why the facts were essential to his opposition. 12
Further, Sturm failed to explain why he was not able to obtain
the necessary discovery during the two years the action was
pending. (See Rodriguez v. Oto (2013) 212 Cal.App.4th 1020,
1038 [“In exercising its discretion the court may properly consider
the extent to which the requesting party’s failure to secure the
contemplated evidence more seasonably results from a lack of
diligence on his part.”].)
       Where a party does not meet the requirements of
section 437c, subdivision (h), “the court must determine whether
the party requesting the continuance has nonetheless established
good cause therefor. That determination is within the court’s
discretion.” (Lerma v. County of Orange (2004) 120 Cal.App.4th
709 716; accord, Chavez, supra, 238 Cal.App.4th at p. 643.) The
trial court did not abuse its discretion finding no good cause
under this more general standard. Sturm asserted in his

12    Although Sturm’s attorney at oral argument asserted
Sturm needed a continuance to retain his own expert or depose
McDowell’s expert, nowhere in Sturm’s request for a continuance
did he state he needed a continuance for this purpose, only
generally stating he had additional witnesses to depose.




                                20
declaration he needed a continuance because of the delay in the
trial of the Dept. of Probation action to March 2018. Specifically,
Sturm asserted he was “overwhelmed” in his trial preparation,
had a dispute with his attorney in that case, and if he prevailed
in the Dept. of Probation action, he had a better chance of
retaining an attorney and prevailing in this action. Sturm made
no showing in his application as to what the Dept. of Probation
action involved, why a result in that action would affect this
action, or why he should be allowed to delay this action so he
could litigate the Dept. of Probation action first. The one-year
continuance of the Dept. of Probation action should have allowed
Sturm more, not less, time to prepare his opposition to
McDowell’s summary judgment motion, and Sturm’s breakdown
with his attorney in the Dept. of Probation action is not relevant
to this action. Sturm’s assertion a win in the Dept. of Probation
action would help him find a new attorney in this action, who in
turn might seek discovery, is highly speculative, as is Sturm’s
assertion he would have a better chance of prevailing in this
action if he could first prevail in the Dept. of Probation action.

C.    The Trial Court Did Not Err in Granting McDowell’s
      Motion for Summary Judgment
      Sturm contends the trial court erred in granting
McDowell’s motion for summary judgment because there was a
triable issue of fact whether McDowell was negligent in
prosecuting the Newman action, and in particular, opposing
Newman’s motion for summary judgment.13 McDowell responds

13    On appeal, Sturm does not address the trial court’s rulings
concerning McDowell’s representation of Sturm in the fee




                                21
that it is irrelevant whether any triable issue exists as to its
negligence because Sturm cannot show causation in that he
cannot prove he would have obtained a more favorable outcome
but for McDowell’s negligence. McDowell has the better
argument.

      1.     Standard of review on summary judgment
      Summary judgment is appropriate if there are no triable
issues of material fact and the moving party is entitled to
judgment as a matter of law. (§ 437c, subd. (c); Regents of
University of California v. Superior Court (2018) 4 Cal.5th 607,
618; Valdez v. Seidner-Miller, Inc. (2019) 33 Cal.App.5th 600,
607.) A defendant moving for summary judgment has the initial
burden of presenting evidence that a cause of action lacks merit
because the plaintiff cannot establish an element of the cause of
action or there is a complete defense. (§ 437c, subd. (p)(2);
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853
(Aguilar); Quidel Corp. v. Superior Court (2019) 39 Cal.App.5th
530, 537 (Quidel).) If the defendant satisfies this initial burden,
the burden shifts to the plaintiff to present evidence
demonstrating there is a triable issue of material fact. (§ 437c,
subd. (p)(2); Aguilar, at p. 850; Quidel, at p. 607.)




arbitration or in connection with enforcing the settlement
agreement. Any challenge to these rulings is therefore waived.
(Tiernan, supra, 33 Cal.3d at p. 216, fn. 4; Sierra Palms, supra,
19 Cal.App.5th at p. 1136.) Accordingly, we consider only
Sturm’s contention McDowell committed malpractice in
prosecuting the Newman action.




                                22
      We review the trial court’s ruling on a motion for summary
judgment de novo. (Hampton v. County of San Diego (2015)
62 Cal.4th 340, 347; Quidel, supra, 39 Cal.App.5th at p. 537.)
“‘We liberally construe the evidence in support of the party
opposing summary judgment and resolve doubts concerning the
evidence in favor of that party.’” (Hampton, at p. 347; accord,
Quidel, at pp. 537-538.)

       2.      Applicable law
       The elements of a cause of action for legal malpractice are
“(1) the duty of the attorney to use such skill, prudence, and
diligence as members of his or her profession 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.” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th
1194, 1199; accord, Kumaraperu v. Feldsted (2015) 237
Cal.App.4th 60, 66.) “‘In the legal malpractice context, the
elements of causation and damage are particularly closely
linked.’” (Namikas v. Miller (2014) 225 Cal.App.4th 1574, 1582
(Namikas).) “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.” (Ibid.;
Viner v. Sweet (2003) 30 Cal.4th 1232, 1241; accord, Masellis v.
Law Office of Leslie F. Jensen (2020) 50 Cal.App.5th 1077, 1091
(Masellis).)
       “‘It is not enough for [the plaintiff] to simply claim . . . that
it was possible to obtain a better settlement or a better result at
trial. The mere probability that a certain event would have




                                  23
happened will not furnish the foundation for malpractice
damages.’” (Namikas, supra, 225 Cal.App.4th at p. 1582;
Masellis, supra, 50 Cal.App.5th at pp. 1091-1092.) Rather,
“‘“[d]amage to be subject to a proper award must be such as
follows the fact complained of as a legal certainty.” [Citations.]’
In other words, the plaintiff must show that ‘[he] would certainly
have received more money [or had to pay less] in settlement or at
trial.’” (Namikas, at p. 1582.)
        “The requirement that a plaintiff need prove damages to ‘a
legal certainty’ is difficult to meet in any case. It is particularly
so in ‘settle and sue’ cases.” (Filbin v. Fitzgerald (2012)
211 Cal.App.4th 154, 166; accord Thompson v. Asimos (2016)
6 Cal.App.5th 970, 990-991.) “‘[T]he amount of a compromise is
often “an educated guess of the amount that can be recovered at
trial and what the opponent was willing to pay or accept. . . .
Thus, the goal of a lawyer is to achieve a ‘reasonable’ settlement,
a concept that involves a wide spectrum of considerations and
broad discretion”’” (Namikas, supra, 225 Cal.App.4th at p. 1583;
Barnard v. Langer (2003) 109 Cal.App.4th 1453, 1462-1463 &
fn. 13 [affirming grant of nonsuit where trial court found plaintiff
failed to present “more than a wish list of damages, unsupported
by evidence that the [defense] would have settled for more, or by
expert testimony to show that [the plaintiff's] amounts could
have been recovered had the case been tried”].)
        Although causation is ordinarily a question of fact for the
jury, “[i]n legal malpractice claims, the absence of causation may
be decided on summary judgment ‘only if, under undisputed
facts, there is no room for a reasonable difference of opinion.’”
(Namikas, supra, 225 Cal.App.4th at p. 1583 [affirming summary
judgment for defendant attorneys in legal malpractice case




                                 24
following settlement of family law case because plaintiff husband
could not establish he would have obtained a more favorable
result through settlement or litigation than he achieved in a
marital settlement agreement in light of ex-wife’s declaration
stating she would not have accepted a lower settlement amount].)
      3.     Sturm failed to show he could have obtained a more
             favorable resolution of the underlying termination
             appeal
      Sturm contends on appeal there is a triable issue of fact
whether McDowell was negligent in its handling of the Newman
action, specifically, by its preparation of an inadequate expert
declaration. But to prevail on its summary judgment motion,
McDowell only had to show that Sturm could not prove one
element of his malpractice claim. (§ 437c, subd. (p)(2); Aguilar,
supra, 25 Cal.4th at p. 853.) McDowell met this burden by
showing Sturm could not prove causation, that is, Sturm could
not show he would have achieved a more favorable settlement or
judgment in the termination appeal absent Newman’s negligence,
and in turn, Sturm could not show he would have achieved a
better result in his malpractice claim against Newman in the
Newman action absent McDowell’s negligence. (Masellis, supra,
50 Cal.App.5th at p. 1091; Namikas, supra, 225 Cal.App.4th at
p. 1582.) In other words, even if Newman and McDowell were
negligent in their handling of the termination appeal and the
Newman action, respectively, Sturm could not have achieved a
better result in either action. McDowell met his burden; Sturm
did not.
      McDowell presented competent evidence Sturm could not
have achieved a better result in the termination appeal than the
terms of the settlement agreement. Carroll, the Department




                               25
employee responsible for Sturm’s discipline, declared the
settlement embodied “our ‘last, best and final’-offer,” and had
Sturm not agreed to the settlement, the Department would have
proceeded to the Commission hearing, where Carroll would have
testified Sturm’s termination was appropriate. Carroll stated he
was “confident the hearing officer would uphold the decision to
discharge Mr. Sturm.” Carmichael, the Department’s lawyer who
negotiated the settlement, stated in his declaration, “[T]he
Department would never have agreed to [full back pay] as part of
a settlement because it does not represent a compromise on the
employee’s part. (The best the employee can do at the hearing is
obtain reinstatement and full back pay, so there is almost never
any reason to agree to that in a settlement in general.).”
Carmichael stated the Department believed it would prevail at
trial because Sturm had admitted to violating the Department’s
policies regarding use of force. Both Carmichael and Carroll
stated LACERA did not need not be included as a party to a
settlement with the Department, and LACERA had never been
included in a settlement.
       McDowell also submitted the statement of decision from
the fee arbitration, in which the arbitrator found the
Department’s “offer of reinstatement—the result of Wors’
discussion with Carmichael about the strong points in Sturm’s
case—was an outstanding accomplishment,” the “terms of the
settlement agreement were also impressive,” and the
“nonmonetary settlement benefits were also of considerable
value.” The arbitrator also found the failure of LACERA and the
Department “to honor the settlement agreement does not affect
the value of the [f]irm’s work.”




                              26
       Savitt opined in her expert declaration that based on her
review of the records of the termination appeal and Newman
action, “Whether to settle the case or proceed with a hearing at
the Civil Service Commission level is clearly a judgment call.
Based on Sturm’s April 13, 2010 e-mail to Derek Newman
(Du Wors’ partner), wherein he states: ‘In this case, I have done
something wrong’ and ‘I planned on leaving this year or next
anyway’ and expressing his desire to retain his pension
(NDW 001963), a reasonable attorney would have tried to settle
Mr. Sturm’s case because of his recognition that he had done
something wrong (as apparently also testified to at his deposition
in the Du Wors matter), his lack of damages due to his intended
retirement, and because of the unpredictability of the outcome of
the appeal before the Civil Service Commission.”
       Lonnie McDowell stated in his declaration, “One of the
major problems we had in the underlying matter, which went and
goes directly to causation (i.e., both in the underlying case
against Newman and here), is that Plaintiff did not appear at the
hearing on his termination on May 19, 2010, as noted in the . . .
[n]otice of [d]ischarge. . . . As a result, Plaintiff failed to make a
record of his potential defenses and much of the evidence on
which he might have relied. Therefore, the grounds for any
potential appeal of his termination were limited, and we were
severely restricted in making any such appeal.”
       Based on this evidence McDowell met its affirmative
burden to show Sturm could not have obtained a better
settlement with the Department, nor could he have obtained a
better outcome had he rejected the settlement and proceeded to
the Commission hearing. And because Sturm could not have
prevailed in the Newman action due to a failure to show




                                 27
causation there, he cannot show that but for McDowell’s
negligence in opposing Newman’s judgment motion, Sturm could
not have obtained a better outcome in this action either.
       The burden therefore shifted to Sturm to present
admissible evidence that but for Newman’s negligence in the
underlying termination appeal, the Department would have
offered more in settlement or Sturm could have received a more
favorable result at a hearing. (§ 437c, subd. (p)(1); Aguilar,
supra, 25 Cal.4th at p. 850; Quidel, supra, 39 Cal.App.5th at
p. 537.) Sturm failed to carry this burden. He submitted a
defective separate statement and conclusory declaration
supported by documents that were not authenticated, lacked
foundation, and did not corroborate his testimony. Moreover,
although Sturm’s separate statement and declaration addressed
Newman’s negligence and the Department’s alleged
noncompliance with the settlement agreement, Sturm did not
offer evidence of even a conclusory nature that he could have
achieved a better outcome. Nor does Sturm offer any competent
evidence the failure to include LACERA as a party to the
settlement, as argued by Sturm, had any effect on enforceability
of the settlement agreement. Finally, whether or not the
Department breached the settlement agreement is not a material
issue bearing on whether Sturm was damaged by his lawyers’
negligence in entering into the settlement.




                               28
                           DISPOSITION

      The judgment is affirmed. The Department is to recover its
costs on appeal.



                                           FEUER, J.
We concur:



             PERLUSS, P. J.



             DILLON, J.*




*     Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




                                29
