Full Opinion

Filed 11/10/26 Frink v. Manka CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta) SAMUEL E. FRINK, C105312 Plaintiff and Appellant, (Super. Ct. No. 23CV0201842) v. PAUL J. MANKA, Defendant and Respondent. Plaintiff Samuel E. Frink appeals from a judgment after trial finding in favor of defendant Paul J. Manka on all of plaintiff’s causes of action, which related to defendant’s alleged legal malpractice. Plaintiff argues the trial court committed error by finding he failed to demonstrate he would have had a better result absent defendant’s unsatisfactory performance. We affirm. FACTUAL AND PROCEDURAL BACKGROUND 1 Plaintiff hired defendant in September 2019 to represent him in a probate matter. “Plaintiff’s goal in the probate matter was to invalidate the second amendment to the trust at issue.” “During the pendency of the proceedings, [d]efendant failed to appear at a settlement conference on November 9, 2020. In response to this failure to appear, the 1 We adopt the facts as related in the trial court’s order, omitting footnotes. There was no court reporter for trial, and we do not have a transcript of the proceedings. 1 judge issued an order to show cause why [d]efendant should not be sanctioned for his failure to appear. [¶] Upon receiving the order to show cause, [d]efendant filed a declaration with the court, explaining the reasons for his nonappearance on November 9. In the declaration, [d]efendant explained that, due to medical conditions from which he had been suffering in October[ through ]November 2020, he ‘was NOT in full control of [his] mental faculties to address [his] clients’ needs.’ [Citation.] Plaintiff was not provided with a copy of this declaration and was therefore apparently not aware of [d]efendant’s physical maladies detailed within it. “Defendant remained as counsel for [p]laintiff in the challenge to the second amendment. The matter proceeded to trial before Judge Monique McKee over the course of three days in January 2021. At trial, [d]efendant’s primary legal argument to invalidate the second amendment to the trust was that the second amendment was the result of undue influence on Barbara Weaver by Deborah Sims. Following the trial, Judge McKee issued a written ruling in which she denied [p]laintiff’s petition to invalidate the second amendment to the trust. “At the trial in this matter, [d]efendant further elaborated on his medical condition during the relevant time period. He testified that by the time the trial took place in early 2021, he did not believe he was impaired by substances or ill to the point where he was unable to effectively try the case. [¶] Contradicting [d]efendant’s testimony, [p]laintiff testified that he attended the probate trial and believed that [d]efendant did not do a very good job, opining that [d]efendant was not organized or well-prepared to try the case. “In support of his claim of legal malpractice, [p]laintiff presented testimony from expert witness David Ostrove. Mr. Ostrove is a practicing attorney with approximately 65 years in practice. He also has many years of experience as a certified public accountant. Mr. Ostrove opined that [d]efendant, in his representation of [p]laintiff in the probate matter, deviated from the appropriate standard of care. [¶] Mr. Ostrove cited several areas in which he believed [d]efendant did not meet the standard of care for an 2 attorney. He believed that [d]efendant did not satisfactorily prepare witnesses for trial, and he stated that [defendant] should have called an expert witness as well as the attorney originally involved in the formation of the trust. Mr. Ostrove also faulted [d]efendant for his alleged failure to address certain legal and factual shortcomings of the second amendment itself.” (Fns. omitted.) Following trial, the trial court found in favor of defendant and against plaintiff on all causes of action and entered judgment. As relevant to this appeal, the basis of the trial court’s rejection of plaintiff’s causes of action for professional negligence and breach of contract was that plaintiff failed to demonstrate defendant caused him harm, i.e., a more favorable result would have occurred had defendant satisfactorily performed. In particular, the trial court found: “In this case, [p]laintiff’s malpractice claim was based entirely on the opinion of expert witness Mr. Ostrove. While [d]efendant was a State Bar [of California] certified probate specialist, Mr. Ostrove was not. While this lack of certification does not automatically invalidate Mr. Ostrove’s opinion, it is a factor for the [c]ourt to consider in evaluating the weight to be accorded to his testimony. [¶] While Mr. Ostrove certainly has had a lengthy career in law of which he can be proud, the [c]ourt did not find his opinion here at all persuasive. His written report was full of typographical errors, provided incomplete and incorrect legal citations, was repetitive and conclusory, and failed to present the key issues in the case in any kind of cogent or rational manner. Nor did Mr. Ostrove’s live testimony at trial sufficiently clear up these issues. Many of his responses to questions were nonresponsive and were recitations of what he had written in his report. “Notwithstanding the issues above, even if the [c]ourt were to accept Mr. Ostrove’s expert opinion that [d]efendant’s performance as [p]laintiff’s lawyer was unsatisfactory, there was no evidence whatsoever that, but for this unsatisfactory performance, [p]laintiff would have received a better result at trial. No witness rendered such an opinion. The closest that the evidence came to this mark was when Mr. Ostrove 3 testified that, had [d]efendant performed differently, it ‘might have made a difference’ in the success of the case. A claim for legal malpractice cannot be satisfied based on such speculation.” (Fn. omitted.) Plaintiff appeals. DISCUSSION Plaintiff argues there was insufficient evidence supporting the trial court’s finding that he would not have obtained a more favorable result at the trust trial had defendant satisfactorily performed. We disagree. In challenging the sufficiency of the evidence supporting the trial court’s findings, plaintiff faces a “ ‘ “daunting burden.” ’ ” (Padideh v. Moradi (2023) 89 Cal.App.5th 418, 438.) Under the substantial evidence standard, a trial court’ s findings are reviewed deferentially: “[W]e view the record in the light most favorable to respondent, resolving all evidentiary conflicts and indulging all reasonable inferences to support the judgment.” (Ibid.) Moreover, under the substantial evidence standard, review “ ‘begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted,’ ” supporting the finding in question. (DeNike v. Mathew Enterprise, Inc. (2022) 76 Cal.App.5th 371, 381, italics omitted.) Evidence qualifies as “substantial” if it is “ ‘of ponderable legal significance,’ ‘reasonable in nature, credible, and of solid value,’ and ‘ “substantial” proof of the essentials [that] the law requires in a particular case.’ ” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1006.) If substantial evidence is found, “ ‘it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.’ ” (Perry v. Stuart (2025) 111 Cal.App.5th 472, 500.) “We do not determine credibility or reweigh the evidence.” (Curcio v. Pels (2020) 47 Cal.App.5th 1, 12.) The substantial evidence standard is even more deferential where the appellant bears the burden of proof on the fact at issue. In that situation, the issue on appeal is not whether there is enough evidence in the record to support the trial court’s finding; the 4 issue is whether the evidence concerning that fact compels a finding in the appellant’s favor. (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 466 (Sonic Manufacturing).) To demonstrate that a finding is compelled, an appellant must show that the evidence at trial supporting that finding was “ ‘(1) “uncontradicted and unimpeached” and (2) “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support [that] finding.” ’ ” (Ibid.) Here, plaintiff contends he supplied the trial court with ample evidence to demonstrate defendant’s unsatisfactory performance caused him to experience a worse result than he otherwise would have. Plaintiff points to Mr. Ostrove’s testimony and declaration linking defendant’s unsatisfactory performance with a lesser outcome than expected. But the trial court found Mr. Ostrove’s opinion unpersuasive given the conclusory nature of his opinion and typographical and legal errors in his declaration. This amounted to a credibility finding we are precluded from revisiting on appeal. (Curcio v. Pels, supra, 47 Cal.App.5th at p. 12.) Consequently, the evidence provided by Mr. Ostrove was controverted and of a weight that left room for an adverse judicial determination. (See Sonic Manufacturing, supra, 196 Cal.App.4th at p. 466.) Plaintiff also cites his declaration in support of his trial testimony submitted after trial for the proposition he would have experienced a more favorable result had his attorney satisfactorily performed at the trust trial. But plaintiff’s declaration is not evidence introduced at trial, so it cannot be considered when determining the sufficiency of the trial record. (See Ajaxo, Inc. v. E*Trade Financial Corp. (2020) 48 Cal.App.5th 129, 163-164.) Further, plaintiff’s declaration suffers from the same problem as Mr. Ostrove’s declaration—it provides only conclusory opinions based on the alleged deficiencies of defendant at the trust trial. Thus, plaintiff’s opinion is controverted and subject to an adverse judicial determination. (See Sonic Manufacturing, supra, 196 Cal.App.4th at p. 466.) 5 Other documents plaintiff points to are his motion to review the judgment and his declaration to contest the ruling. These documents were submitted after trial and are not evidence. The documents further rely on plaintiff’s and Mr. Ostrove’s conclusory opinions that the result would have been better had defendant satisfactorily performed at the trust trial. As discussed, these opinions are insufficient to reverse the trial court’s findings. Plaintiff also points to his closing argument brief as demonstrating causation. But again, this document pointed to Mr. Ostrove’s opinion as evidence of causation, which the trial court rejected as unpersuasive. This is a credibility determination we cannot revisit. (Curcio v. Pels, supra, 47 Cal.App.5th at p. 12.) Accordingly, plaintiff has not demonstrated that insufficient evidence supports the trial court’s finding or that he is entitled to judgment in his favor as a matter of law. DISPOSITION The judgment is affirmed. Plaintiff shall pay costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1)-(2).) /s/ ROBIE, Acting P. J. We concur: /s/ KRAUSE, J. /s/ FEINBERG, J. 6