Unreported / Non-Citable
Background
Jonathan Brodsky, as trustee of the ADCO Trust, sued Ervin Cohen & Jessup LLP and partner Reeve E. Chudd for legal malpractice, negligent misrepresentation, breach of fiduciary duty, aiding and abetting a breach of fiduciary duty, and fraudulent concealment. Because the appeal concerned a demurrer, the court treated the operative complaint's allegations as the factual basis for its analysis. The complaint alleged that Chudd replaced part of Leonard Cohen's 2005 trust restatement so that Robert Kory, rather than Adam Cohen, Lorca Cohen, and Anjani Thomas, would become sole successor trustee. It characterized that replacement as a forgery and alleged that the resulting control of the family trust enabled Kory and the attorneys to divert trust assets.
The defendants demurred on several grounds, including Brodsky's failure to obtain a prefiling order under Civil Code section 1714.10(a). That provision requires a reasonable-probability showing before certain claims accusing an attorney of conspiring with a client may be pleaded. The superior court overruled the demurrer, reasoning that the complaint did not actually assert a civil-conspiracy cause of action and, alternatively, that an independent-duty exception applied. The appeal addressed the prefiling issue, which section 1714.10(d) makes appealable. After an initial affirmance, the California Supreme Court transferred the matter back with directions to permit rehearing and supplemental briefing; the Court of Appeal vacated its earlier opinion and reconsidered the issue.
The Court’s Holding
The Court of Appeal again affirmed, but on the ground that section 1714.10(a) did not cover the pleaded conduct. Reviewing the demurrer ruling de novo, the court explained that the statutory hurdle applies to an attorney-client conspiracy arising from an attempt to contest or compromise a claim or dispute. Brodsky's complaint instead rested on the alleged replacement of the successor-trustee provision. The court found no allegation that a claim or dispute existed when Leonard died and the forgery allegedly occurred; Adam and Lorca's objections arose afterward, when they questioned Kory's status and the attorneys allegedly concealed what had happened.
The court relied on Stueve's treatment of fraudulent estate planning and asset diversion as transactional activity outside the prefiling statute. It rejected the argument that later concealment and litigation over Kory's trusteeship retroactively brought the original conspiracy within the statute. It also rejected reliance on Leonard's earlier disagreement with Kory: the pleaded conspiracy was between ECJ and Kory, while Leonard had been ECJ's client, so an ECJ-Kory conspiracy against Leonard was not an attorney conspiring with his or her own client for statutory purposes. Cortese was distinguishable because there an attorney's misrepresentations induced an heir to forgo challenges to conduct she already disputed. Here, the alleged forgery initiated the dispute rather than compromised an existing one.
Key Takeaways
- Section 1714.10's prefiling requirement does not automatically apply whenever a complaint describes collusion between an attorney and a client.
- The alleged conspiracy must arise from an attempt to contest or compromise a claim or dispute, not merely produce a dispute through the challenged conduct.
- The court treated the alleged alteration of estate-planning documents as transactional activity comparable to the conduct addressed in Stueve.
- Later concealment and challenges to Kory's appointment did not establish that a qualifying dispute existed when the alleged conspiracy began.
- The affirmance resolved the prefiling objection to the demurrer; it did not adjudicate the truth of the forgery, fiduciary-duty, or malpractice allegations.
Why It Matters
The decision applies the statutory text and existing appellate authority to distinguish estate-planning misconduct from attorney conduct undertaken to contest or settle an existing legal dispute. Its chronology analysis was tied to these pleadings: the court expressly said it was not announcing a universal rule that every conspiracy's first act must precede a dispute.
The immediate result is that Brodsky need not obtain section 1714.10 prefiling approval for the claims at issue, and he may recover costs on appeal. The order overruling the demurrer on that ground was affirmed, leaving the underlying allegations unresolved. The opinion is not certified for publication.