Filed 9/3/15 Dolinger v. Murphy CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


NANCY DOLINGER,                                                      B255830

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC520982)
         v.

MICHAEL C. MURPHY,

         Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
William F. Fahey, Judge. Affirmed.
         Nancy Dolinger, in pro. per, for Plaintiff and Appellant.
         Michael C. Murphy, in pro. per, for Defendant and Respondent.
         Adam Van Susteren, Van Susteren Law Group, for amicus curiae AltaGolden on
behalf of Plaintiff and Appellant.


                                                    * * * * * *
       The beneficiary of a trust sued the lawyer who drafted the trust and who later
represented the trustee in litigation to recover trust assets; she alleged that the litigation
was unnecessary and that the lawyer’s fees substantially depleted the trust’s assets. The
trial court granted the lawyer’s motion to strike the lawsuit as a strategic lawsuit against
                                                                   1
public participation (SLAPP). (Code of Civ. Proc., § 425.16.) We conclude that the
primary source of the beneficiary’s alleged injury—namely, the lawyer’s prosecution of
the litigation—is “protected activity” within the meaning of the anti-SLAPP statute. We
further conclude that the beneficiary’s malpractice and breach of fiduciary duty claims
are precluded as a matter of law because a lawyer owes no duty to a beneficiary to refrain
from engaging in litigation that his client, the trustee, authorizes. We accordingly affirm.
                    FACTS AND PROCEDURAL BACKGROUND
I.     Facts
       Beverly Seeman (Beverly) died on April 28, 2008, at the age of 92. She had two
                                                                         2
children, Michael Seeman (Michael) and Nancy Dolinger (plaintiff).
       Michael died on August 9, 2003, leaving a will that bequeathed 25 percent of his
estate to Beverly, 25 percent to Ben Hayes (Ben), and 50 percent to his former wife, Rosa
Seeman (Rosa). At the time of his death, Michael owned Joseem, Inc. (Joseem), a
company that owned property that had been leased to 7-Eleven to run a minimart.
Michael left plaintiff one dollar.
       Between 2003 and 2007, plaintiff sued Michael’s estate in probate court. That
litigation concluded in 2007. Michael C. Murphy (defendant) was not involved in that
litigation.
       By 2007, the property held by Joseem was worth approximately $650,000. Rosa
was the executor of Michael’s estate, and she had yet to distribute any Joseem asset to


1      All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.

2       Because many individuals involved in this case share the same last name, we use
first names for clarity. No disrespect is intended.

                                               2
either Beverly or Ben. As a later court found, Rosa displayed a penchant for “game-
playing and foot dragging.” So, in November 2007, Beverly and Ben filed an action in
Los Angeles Superior Court to compel distribution of the assets in Michael’s estate.
Beverly and Ben personally signed the verified pleadings. In January 2008, Beverly and
Ben filed a companion lawsuit, as persons entitled to 50 percent of Joseem’s stock, to
compel the involuntary dissolution of Joseem. Again, Beverly and Ben personally signed
the verified pleadings. Beverly and Ben retained defendant to represent them in these
matters.
       In early 2008, Beverly created a trust and a pour-over will that poured certain of
her assets into the trust. These testamentary documents enabled and specifically
empowered the trustee to continue the litigation against Rosa, should Beverly die before
that litigation concluded. Both the trust and will were notarized. The trust named
Beverly as the trustee, Ben as her successor trustee, and Fe Balderama (Balderama), one
of Beverly’s former caregivers, as a second successor trustee should Ben also die. The
trust was expressly funded by Beverly’s 25 percent interest in Jossem, by a specifically
named certificate of deposit, and by Beverly’s personal belongings. The trust named
plaintiff as its primary and sole beneficiary, and Ben and Balderama as alternate
cobeneficiaries in the event of plaintiff’s death.
       Both lawsuits described above settled. With respect to the first lawsuit, Rosa
                                                                               3
made a cash distribution of approximately $25,000 to Beverly in March 2008, and issued
Beverly 305 shares of Joseem stock (constituting 25 percent of Joseem’s shares) in June
2008. With respect to the second lawsuit, Rosa agreed to dissolve Joseem and to sell the
property it owned; Rosa ultimately obtained net proceeds of $454,254.58 from that sale.
       However, Rosa’s distribution of those proceeds was not forthcoming. In
November 2009, Ben—on behalf of himself and on behalf of Beverly’s trust as successor
trustee following her death—petitioned the Los Angeles Superior Court to supervise the


3      The exact amount is unclear from the record. The March 2008 distribution is
referred to as both $24,545, and $25,000.

                                              3
voluntary winding up of Joseem. Ben personally verified the pleadings. Ben died eight
months later, in July 2010. Tim Hayes (Tim), Ben’s son and a friend of defendant’s,
became the trustee of Ben’s estate; Balderama became the trustee of Beverly’s estate.
       After Tim and Balderama rejected Rosa’s offer to settle the matter for $74,000
(per 25 percent interest), the lawsuit proceeded to a bench trial. In addition to allocating
several expenses between and among Joseem’s shareholders, the trial court ruled that
Beverly’s trust was entitled to $113,405.65 and Ben’s estate was entitled to
$113,463.64—each being approximately 25 percent of the $454,254.58 proceeds from
the sale of the property. After accounting for federal and state taxes of $45,316 and
attorney’s fees and costs of $32,630.71, as well as the other allocations referred to in the
court’s order, defendant issued plaintiff two checks totaling $26,032.38 as her inheritance
under Beverly’s trust.
       Defendant asserts that plaintiff in 2009 also received $60,000 for the value of the
specified certificate of deposit, and that Beverly’s trust was credited $10,000 for a 2010
distribution from Joseem. Plaintiff denies both.
       Plaintiff was never defendant’s client.
II.    Procedural Background
       Plaintiff sued Balderama for breach of fiduciary duty, and separately sued
defendant. This appeal concerns the latter lawsuit. In the operative first amended
complaint (FAC) in this case, plaintiff sought damages on theories of malpractice and
                            4
breach of fiduciary duty.
       Plaintiff alleges that defendant breached his duty to her, as beneficiary of
Beverly’s trust, by allowing Beverly to create a trust at a time when Beverly suffered
from dementia; by not ensuring that Beverly funded the trust with two other bank
accounts and other certificates of deposit, including a bank account that had a balance of
nearly $30,000 in 2003; and by pursuing the trust’s efforts to recover its interest in

4      The FAC appears to be identical to the original complaint except for a different
cover page and verification page.


                                              4
Jossem through “unnecessary” litigation that Beverly did not want and that generated
attorney’s fees and costs that “depleted” the trust’s assets to plaintiff’s detriment and
defendant’s benefit. As relief, plaintiff seeks disgorgement of the attorney’s fees and
costs, the award of the assets not used to fund the trust, and emotional distress damages
arising from defendant’s alleged conduct in belittling plaintiff during and after a court
appearance.
       Defendant filed a motion to strike plaintiff’s lawsuit under the anti-SLAPP
       5
statute. Plaintiff opposed the motion. Defendant objected to much of plaintiff’s
evidence, and filed a reply.
       The trial court granted defendant’s motion, and dismissed plaintiff’s case with
prejudice. The court ruled that the gravamen of the FAC “concerns the defendant’s
action as litigation counsel for [the trust’s trustee],” which constitutes protected
petitioning activity under the anti-SLAPP statute. Plaintiff was thus required to show a
probability of prevailing on her claims. The court found that she did not carry that
burden because the evidence she submitted in opposition to defendant’s motion was
inadmissible and because the litigation privilege (Civ. Code, § 47, subd. (b)) applied, and
barred her claims.
       Plaintiff timely appeals.
                                       DISCUSSION
       Plaintiff argues that the trial court erred in granting defendant’s special motion to
strike the FAC under the anti-SLAPP statute (§ 425.16).
       Section 425.16 was created “to provide a procedural remedy to dispose of lawsuits
that are brought to chill the valid exercise of constitutional rights.” (PrediWave Corp. v.
Simpson Thacher & Bartlett LLP (2009) 179 Cal.App.4th 1204, 1217 (PrediWave).) To
effectuate this purpose, the anti-SLAPP statute empowers a trial court to strike a claim if
it “aris[es] from”—that is, if it is “based [on]”—one of four types of “protected activity”
enumerated in section 425.16, subdivision (e) unless the plaintiff “establishes that there is

5      Defendant also filed a demurrer, which was dismissed as moot.

                                              5
a probability that the plaintiff will prevail on the claim.” (§ 425.16, subds. (b)(1), (b)(2)
& (e); PrediWave, at p. 1219.) We independently review the trial court’s assessment of
whether a claim is based on “protected activity” as well as its evaluation of a plaintiff’s
probability of prevailing. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055 (Rusheen);
Bergstein v. Strook & Strook & Lavan LLP (2015) 236 Cal.App.4th 793, 803
(Bergstein).)
I.     Whether Plaintiff’s Claims Are Based On “Protected Activity”
       Section 425.16’s screening mechanism applies when a “[a] cause of action against
a person arise[s] from any act of that person in furtherance of the person’s right of
petition or free speech under the United States Constitution or the California Constitution
in connection with a public issue” (§ 425.16, subd. (b)(1)), and defines such acts to
include “(1) any written or oral statement or writing made before a legislative, executive
or judicial proceeding, or any other official proceeding authorized by law, (2) any
written or oral statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial body, or any other official
proceeding authorized by law, (3) any written or oral statement or writing made in a
place open to the public or a public forum in connection with an issue of public interest,
or (4) any other conduct in furtherance of the exercise of the constitutional right of
petition or the constitutional right of free speech in connection with a public issue or an
issue of public interest.” (§ 425.16, subd. (e), italics added.)
       A claim “arises from” so-called “protected activity” if it is “based on” that
activity. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) In assessing what a claim is
“based on,” courts are to “focus [] on the wrongful, injurious acts or omissions identified
in the complaint, and whether those acts or omissions come within the statute’s
description of protected conduct.” (Old Republic Constr. Program Group v. The
Boccardo Law Firm, Inc. (2014) 230 Cal.App.4th 859, 862, 868.) What matters is the
“defendant’s activity,” not how the plaintiff has decided to frame her cause of action.
(Bergstein, supra, 236 Cal.App.4th at p. 811.) The party moving to strike a claim does
not need to prove that the plaintiff subjectively intended that her claim squelch the

                                               6
defendant’s exercise of his protected rights (Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 67-68 (Equilon Enteprises)); does not need to prove that defendant
undertook the protected activity on his own behalf (Briggs v. Eden Council For Hope &
Opportunity (1999) 19 Cal.4th 1106, 1116 (Briggs)); and does not need to prove, if the
party is relying on any type of protected activity italicized above, that the protected
activity also concerns an issue of public significance (id., at p. 1123). When a claim rests
on both protected and unprotected activity, “the court looks to the gravamen of the claim
to determine if the claim” involves protected activity. (Bergstein, at p. 804.) Just like
ascertaining what a claim is “based on,” the gravamen of a claim is determined by
looking at the defendant’s alleged conduct (and not how the plaintiff formulates her claim
based on that conduct) and by identifying “‘[t]he allegedly wrongful and injury-
producing conduct . . . that provides the foundation for the claim.’” (Hylton v. Frank E.
Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1272). As long as the protected activity
is not “merely incidental to the claim,” the whole claim will be subject to the anti-SLAPP
statute. (Bergstein, at p. 804.)
       A lawsuit is a “judicial proceeding” within the meaning of section 425.16, so the
acts of filing and litigating a lawsuit, as well as any prelitigation statements “in
connection with” that lawsuit, can constitute protected activity. (§ 425.16, subds. (e)(1)
& (e)(2); PrediWave, supra, 179 Cal.App.4th at p. 1221; Coretronic Corp. v. Cozen
O’Connor (2011) 192 Cal.App.4th 1381, 1388 (Coretronic); Briggs, supra, 19 Cal.4th at
p. 1115 [“‘[J]ust as communications preparatory to or in anticipation of the bringing of an
action or other official proceeding are within the protection of the litigation privilege . . .,
such statements are equally entitled to the benefits of section 425.16.’ [Citation.]”].)
However, it is not enough that a lawsuit was filed “after [the] protected activity took
place” or was “triggered” by the protected activity. (PrediWave, at p. 1219; Freeman v.
Schack (2007) 154 Cal.App.4th 719, 730 (Freeman).) Instead, the lawsuit must be the
protected activity; in other words, the wrongful, injurious conduct the plaintiff alleges
must be the lawsuit itself.



                                               7
       In this case, the gravamen of plaintiff’s malpractice and breach of fiduciary duty
claims is that defendant engaged in litigation for Beverly’s trust that was unnecessary and
designed to enrich himself at the expense of plaintiff by depleting her inheritance through
attorney’s fees and litigation costs. To be sure, plaintiff also alleges that she suffered
injury when defendant urged Beverly to create the trust in the first place and when
defendant berated her (and caused her emotional distress). But the primary thrust of
plaintiff’s claims remains her contentions regarding defendant’s pursuit of the litigation
on behalf of the trust; those contentions are not “incidental.” (Bergstein, supra, 236
Cal.App.4th at p. 804.) What is more, the primary damages plaintiff seeks arise from the
allegedly wrongful pursuit of litigation. Indeed, the trust was originally created to allow
the continuation of litigation Beverly personally initiated in the event she died before it
was resolved. In light of these considerations, plaintiff’s inclusion of unprotected
conduct does not take her complaint outside of the anti-SLAPP statute (PrediWave,
supra, 179 Cal.App.4th at p. 1220, quoting Club Members for an Honest Election v.
Sierra Club (2008) 45 Cal.4th 309, 319 [Plaintiff “cannot ‘deprive [the] defendant of
anti-SLAPP protection by bringing a complaint based upon both protected and
unprotected conduct’”].)
       Plaintiff offers two arguments in response. First, she invokes the long line of
cases holding that a client’s claims against his own attorney for malpractice or breach of
fiduciary duty is not subject to the anti-SLAPP statute because such claims arise out of
the attorney’s alleged “failure to protect their client’s rights in the underlying action” and
not the “attorney’s First Amendment right to petition.” (Jespersen v. Zubiate-Beauchamp
(2003) 114 Cal.App.4th 624, 627; accord, Chodos v. Cole (2012) 210 Cal.App.4th 692,
702 (Chodos); Coretronic, supra, 192 Cal.App.4th at p. 1391; PrediWave, supra, 179
Cal.App.4th at p. 1227; Freeman, supra, 154 Cal.App.4th at pp. 732-733; Benasra v.
Mitchell Silberberg & Knupp LLC (2004) 123 Cal.App.4th 1179, 1189.) But the
principle articulated in these cases is limited by its rationale. By its own terms, it does
not extend to “clients’ causes of action against attorneys based on statements or conduct
solely on behalf of different clients” or “nonclients’ causes of action against attorneys.”

                                              8
(PrediWave, supra, 179 Cal.App.4th at p. 1227, italics added; Chodos, supra, 210
Cal.App.4th at p. 704.) Thus, when a plaintiff sues someone else’s lawyer for litigation-
related conduct, the anti-SLAPP statute applies if the gravamen of the plaintiff’s claim is
that litigation. (Bergstein, supra, 236 Cal.App.4th at p. 797 [lawsuit against adversary’s
lawyers for their alleged litigation-related misconduct; “protected activity”]; Finton
Constr., Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 210.) Because
plaintiff frankly concedes that defendant was never her lawyer, her claims are not ones
for malpractice and breach of fiduciary duty between a client and her lawyer, and the
precedent she cites is inapposite.
       Second, plaintiff suggests that defendant engaged in illegal conduct by drafting a
will that named Balderama, Beverly’s former caregiver, as a successor trustee. Where a
defendant’s conduct is “illegal as a matter of law,” it cannot constitute protected activity
under the anti-SLAPP statute. (Finton, supra, 238 Cal.App.4th at p. 210; Flatley v.
Mauro (2006) 39 Cal.4th 299, 320 (Flatley).) But to fit within this exception, a
defendant’s conduct must be “criminal, and not merely violative of a statute” (Mendoza
v. ADP Screening & Selection Servs., Inc. (2010) 182 Cal.App.4th 1644, 1654), and the
criminal violation must either be conceded by the defendant or “conclusively shown by
the evidence” (Flatley, at p. 316). Here, Probate Code section 21380 erects a rebuttable
presumption that a testator naming a current or recent caregiver as a beneficiary has done
so through undue influence (Prob. Code, § 21380, subds. (a)(3) & (b)), but Beverly
named Balderama as a successor trustee; Balderama was only an alternate beneficiary,
and one who ended up receiving nothing from the trust. More to the point, Probate Code
section 21380—as well as the other Probate Code sections plaintiff argues on appeal that
defendant violated (sections 15201 and 1060 to 1064)—are not criminal and thus fall
outside this narrow exception for criminal conduct.
       We accordingly conclude that the gravamen of plaintiff’s FAC is protected
activity, and now examine whether she has demonstrated a probability of prevailing on
the claims in the FAC.



                                              9
II.    Whether Plaintiff Has Established a Probability of Prevailing on Her Claims
       Once a claim is shown to fall within the ambit of the anti-SLAPP statute, the
burden shifts to the plaintiff to establish a “probability” of prevailing on that claim at
trial. (§ 425.16, subd. (b)(1); Chodos, supra, 210 Cal.App.4th at p. 701.) In making this
assessment, “the [trial] court shall consider the pleadings, and supporting and opposing
affidavits stating the facts upon which the liability or defense is based.” (§ 425.16,
subd. (b)(2).) The pleadings “frame the issue to be decided” (Church of Scientology v.
Wollersheim (1996) 42 Cal.App.4th 628, 655, abrogated on other grounds in Equilon
Enterprises, supra, 29 Cal.4th at p. 53), and the court then evaluates whether the
evidence submitted by the parties and admissible at trial amounts to “‘sufficient prima
facie showing of facts to sustain a favorable judgment if the evidence submitted by the
plaintiff is credited’” or instead whether defendant is entitled to prevail “‘as a matter of
law.’” (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003)
106 Cal.App.4th 1219, 1235, quoting Wilson v. Parker, Covert & Chidester (2002) 28
Cal.4th 811, 821; Kashian v. Harriman (2002) 98 Cal.App.4th 892, 906 (Kashian) [“The
court considers only the evidence that would be admissible at trial”].) Because the
plaintiff’s evidence must be credited, a court is not to make credibility determinations or
otherwise weigh the evidence submitted. (Kashian, at p. 906.)
       To prevail on either of her claims for malpractice or for breach of fiduciary duty,
plaintiff must show that defendant owed her a duty. (Moore v. Anderson Zeigler
Disharoon Gallagher & Gray (2003) 109 Cal.App.4th 1287, 1294 (Moore) [“A key
element of any action for professional malpractice is the establishment of a duty by the
professional to the claimant”]; Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th
811, 820 [“The elements of a cause of action for breach of fiduciary duty are the
existence of a fiduciary relationship, breach of fiduciary duty, and damages”].) When it
comes to duties owed by attorneys, “[a]n attorney-client relationship normally is essential
to the existence of an attorney’s duty toward others.” (Berg & Berg Enterprises, LLC v.
Sherwood Partners, LLC (2004) 131 Cal.App.4th 802, 826 (Berg & Berg Enterprises);
Goldberg v. Frye (1990) 217 Cal.App.3d 1258, 1268 (Goldberg) [fact that beneficiaries

                                              10
may benefit from attorney’s representation of estate “does not give rise to a duty by the
attorney to such third parties”].) An attorney’s duties of loyalty, confidentiality and
competence and other fiduciary duties all flow from that relationship. (E.g., Fremont
Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1174 [“An attorney’s
fiduciary obligations to his or her client include the duties of loyalty and
confidentiality”].)
       In this case, plaintiff has admitted that she was never defendant’s client. Further,
it is well settled that “the attorney for the trustee of a trust . . . represents only the
trustee,” not the trust’s beneficiaries. (Wells Fargo Bank v. Superior Court (2000) 22
Cal.4th 201, 213 (Wells Fargo Bank) [“The trustee, rather than the beneficiary, is the
client of the attorney who gave legal advice to the trustee,” italics omitted]); Goldberg,
supra, 217 Cal.App.3d at p. 1267 [same, for estates].) Defendant accordingly owes
plaintiff no duties as her attorney.
       However, an attorney can be liable to a nonclient, third party if (1) “the attorney
participated in a breach of duty owed by [a trustee-client] and did so for his or her own
personal financial advantage” “over and above professional fees earned,” or (2) “the
attorney violated a separate duty that he or she independently owed to the third party.”
(Berg & Berg Enterprises, supra, 131 Cal.App.4th at pp. 827-828.) The first basis is
available only if the defendant-attorney made a “conscious decision to participate in
tortious activity for the purpose of assisting [the trustee] in performing a wrongful act”
and received a benefit beyond his usual fees. (American Master Lease LLC v. Idanta
Partners (2014) 225 Cal.App.4th 1451, 1475-1476; Berg & Berg Enterprises, at pp. 823,
fn. 10, 828 [aiding and abetting liability does not require aider and abettor to owe the
victim an “independent duty”; conspiratorial liability does].) Plaintiff neither alleged nor
adduced proof that defendant obtained more than his usual fees.
       Consequently, plaintiff’s ability to sue defendant in this case hinges on whether
she can invoke the second basis for holding an attorney liable to a nonclient third party by
establishing that defendant, as the attorney for the initial and successor trustees,



                                                11
independently owes plaintiff a duty as the beneficiary of Beverly’s trust. This plaintiff
cannot do.
       “As a general rule,” as noted above, “an attorney has no professional obligation to
nonclients and thus cannot be held liable to nonclients . . . .” (Moore, supra, 109
Cal.App.4th at p. 1294.) “[U]nder certain circumstances,” however, “an attorney may . . .
owe a duty to some third party.” (Ibid.) However, such duties will be implied in law
only after “‘a judicial weighing of the policy considerations for and against the
imposition of liability under the circumstances.’” (Ibid., quoting Goodman v. Kennedy
(1976) 18 Cal.3d 335, 342.) These considerations include (1) “the extent to which the
transaction was intended to affect the plaintiff,” (2) “the foreseeability of harm to [the
plaintiff],” (3) “the degree of certainty that the plaintiff suffered injury,” (4) “the
closeness of the connection between the defendant’s conduct and the injury suffered,”
(5) “the moral blame attached to the defendant’s conduct,” (6) “the policy of preventing
future harm,” (7) “the likelihood that imposition of liability might interfere with the
attorney’s ethical duties to the client,” and (8) “whether the imposition of liability ‘would
impose an undue burden on the profession.’” (Id. at p. 1295; Boranian v. Clark (2004)
123 Cal.App.4th 1012, 1019 (Boranian); Ventura County Humane Society v. Holloway
(1974) 40 Cal.App.3d 897, 903, 905 (Ventura County Humane Society).)
       Applying these factors, courts have recognized that “an attorney who assumes
preparation of a will”—or, for that matter, a trust—“incurs a duty not only to the testator
client, but also to [her] intended beneficiaries” that can give rise to liability in tort or in
contract (as a third-party beneficiary). (Ventura County Humane Society, supra, 40
Cal.App.3d at p. 903.) But “the attorney’s liability towards the intended beneficiaries . . .
is not automatic” (ibid.), and “is determined by reference to the attorney-client
relationship” between the attorney and the testator. (Id. at pp. 903-904; Heyer v. Flaig
(1969) 70 Cal.2d 223, 229 (Heyer), abrogated on other grounds in Laird v. Blacker
(1992) 2 Cal.4th 606.) Because “the attorney’s paramount obligation [to his testator-
client] is to serve and carry out the intention of the testator” (Ventura County Humane
Society, at pp. 904-905; Heyer, at p. 228 [noting how “an attorney undertakes to fulfill

                                               12
the testamentary instructions of his client”]), the cases recognizing an attorney’s duty to a
beneficiary involve instances where the attorney has been negligent in effectuating the
testator’s intent. Thus, an attorney is potentially liable to intended beneficiaries for not
advising a client how a contemplated, post-testamentary marriage would affect the
beneficiaries of the client’s will (Heyer, at pp. 225-229), for drafting a will negligently
(Lucas v. Hamm (1961) 56 Cal.2d 583, 589-590), and for drafting a trust in a way that
incurs additional tax liability (Bucquet v. Livingston (1976) 57 Cal.App.3d 914, 922-925).
       For the same reasons, courts have been reluctant to create a duty between a
testator’s attorney and an intended beneficiary in instances not involving the failure to
carry out the testator’s clearly articulated intent. Consequently, courts have rejected
lawsuits by beneficiaries premised on the testator’s attorney’s (1) failure to clarify which
of many humane societies the testator meant to name in his will when the attorney used
the specific language for that bequest that the testator specified (Ventura County Humane
Society, supra, 40 Cal.App.3d at pp. 904-905), (2) failure to evaluate the testator’s
testamentary capacity (Moore, supra, 109 Cal.App.4th at p. 1290), (3) failure to remind
the testator to sign the will the attorney drafted (Radovich v. Locke-Paddon (1995) 35
Cal.App.4th 946, 965), (4) failure to urge the testator to consider alternative plans to
forestall potential will contests (Boranian, supra, 123 Cal.App.4th at pp. 1019-1020), and
(5) failure to ascertain whether the testator desired to give a named beneficiary a larger
inheritance (Chang v. Lederman (2009) 172 Cal.App.4th 67, 86 (Chang)). In each of
these situations, the creation of a duty would have “subjected” the attorney “to conflicting
duties” (as between his client (the testator) and the beneficiaries) (Boranian, at p. 1020),
and to “inevitably . . . speculative” liability because the only witness capable of saying
what she intended will necessarily be dead (and hence unavailable) (Chang, at p. 86).
Plaintiff observes that these cases only involve unnamed beneficiaries, but this
observation is inaccurate and irrelevant. Chang involved a named beneficiary and, more
to the point, the policy concerns underlying every one of these decisions had nothing to
do with whether the beneficiary was named or unnamed.



                                              13
       In this case, plaintiff seeks to impose liability on defendant for his breach of three
duties as an attorney: (1) his failure to ascertain Beverly’s testamentary capacity; (2) his
drafting of a will and trust that, despite Beverly’s signature on the will and trust, did not
really reflect what she wanted; and (3) his failure to ignore the directions of his clients
(the trustees and successor trustees) in favor of what plaintiff wanted.
       However, defendant owed plaintiff none of those duties. As noted above, Moore
rejected the notion that the testator’s attorney owes a beneficiary a duty to assess the
testator’s capacity. (Moore, supra, 109 Cal.App.4th at p. 1290.) Chang and Boranian
refused to require testators to second guess—or even question—the testator’s clearly
expressed intentions as to what she wants to do with her property. (Boranian, supra, 123
Cal.App.4th at p. 1020; Chang, supra, 172 Cal.App.4th at pp. 82-83.) And the final duty
plaintiff seeks to impose would, by definition, place a trustee’s attorney in an untenable
conflict of interest between the trustee (his client) and the intended beneficiary, and
would open the floodgates to lawsuits against attorneys by beneficiaries who would
prefer to administer the trust differently. This goes far beyond the context of “the
attorney-client relationship” between the trustee and his attorney that is, as noted above,
the touchstone for any duties to be imposed. (Ventura County Humane Society, supra,
40 Cal.App.3d at pp. 903-904.)
       Contrary to what amicus curiae AltaGolden suggests, our refusal to recognize a
duty on the facts of this case does not leave beneficiaries like plaintiff without a remedy
when faced with irresponsible trustee’s counsel. The trustee, as the attorney’s client, can
sue an unscrupulous or incompetent lawyer for malpractice. (See Wells Fargo Bank,
supra, 22 Cal.4th at p. 213.) And, if the attorney is colluding with the trustee, the
beneficiary can sue the trustee for breach of the trust (Prob. Code, § 16420, subd. (a)(3);
Estate of Giraldin (2012) 55 Cal.4th 1058, 1068) or, as noted above, potentially sue the
attorney for aiding and abetting the trustee’s breach.
       Because no duty runs between plaintiff and defendant for the injuries alleged in
this case, plaintiff’s claims fail as a matter of law. We consequently have no occasion to
examine whether the litigation privilege (Civ. Code, § 47, subd. (b)) also bars plaintiff’s

                                              14
claims or whether plaintiff has made a sufficient evidentiary showing to withstand a
motion to strike. (See People v. Chism (2014) 58 Cal.4th 1266, 1295, fn. 12 [“‘We
review the ruling, not the court’s reasoning . . .’”].) We also decline amicus curiae’s
invitation to redraft plaintiff’s complaint to assert a claim for intentional interference with
the expectation of an inheritance because such a claim would fail for the same reason—
namely, the absence of any tortious conduct by defendant. (Beckwith v. Dahl (2012)
205 Cal.App.4th 1039, 1057 [requiring proof, among other things, of interference
“conducted by independently tortious means”].)
                                      DISPOSITION
       The judgment is affirmed. Defendant is awarded his costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                                          _______________________, J.
                                                                 HOFFSTADT
We concur:


_______________________, P. J.
BOREN


_______________________, J.
ASHMANN-GERST




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