Filed 2/23/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

BRUCE GORDON et al.,

Plaintiffs and Appellants,

v.

ERVIN COHEN & JESSUP 

LLP et al.,

Defendants and 

Respondents.

 B313903

 (Los Angeles County

 Super. Ct. No. BC715251)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Patricia Nieto, Judge. Affirmed.

Complex Appellate Litigation Group, Rex S. Heinke, 

Jessica Weisel; Joshua R. Furman Law and Joshua R. Furman 

for Plaintiffs and Appellants.
2

Halpern May Ybarra Gelberg, Joseph J. Ybarra, Kevin H. 

Scott, Joel Mallord; Ervin Cohen & Jessup and Allan B. Cooper 

for Defendants and Respondents. 

* * *

A lawyer retained to draft a client’s will or trust has a duty 

to “use such skill, prudence, and diligence as members of [the 

legal] profession commonly possess and exercise.” (Coscia v. 

McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199 (Coscia).) If the 

lawyer fails to do so, the client can sue for legal malpractice. 

What is more, the lawyer’s duty—and the concomitant right to 

sue for legal malpractice—can extend to nonclients, but only if 

the client’s intent to benefit the nonclient is “clear,” “certain” and 

“undisputed.” (Heyer v. Flaig (1969) 70 Cal.2d 223, 229 (Heyer), 

disapproved on other grounds by Laird v. Blacker (1992) 2 

Cal.4th 606; Paul v. Patton (2015) 235 Cal.App.4th 1088, 1097, 

1098 (Paul).)

But when is the client’s intent clear, certain and 

undisputed enough that the lawyer then owes the nonclient a 

duty? Here, the client retained an attorney to amend her 

testamentary trust in a way that disinherited the three children 

of one of her sons upon her death. Soon thereafter, the client 

retained the attorney to place three parcels of real estate held by 

the trust into three limited liability companies (LLCs) and then 

gifted equal membership interests in the LLCs to each of her 

three sons. Notably, the LLC operating agreements did not 

prohibit the sons from gifting their LLC membership interests to 

their children, thereby making it possible for membership 

interests in the LLC to be passed to the grandchildren whom the 

client had disinherited from her testamentary trust. Thus, this 
3

case presents the question: Does a client’s intent to disinherit 

someone in a testamentary trust by itself constitute clear, certain 

and undisputed intent to disinherit them in every subsequent 

transaction the client makes with the property contained in the 

trust? We conclude that the answer is no, that the attorney in 

this case accordingly owed no duty to guard against that result, 

and that the trial court properly granted summary judgment to 

the attorney and his law firm sued in this case by certain

beneficiaries of the testamentary trust. We accordingly affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. The Gordon family

Arnold and Claire Gordon married, and had three children 

in the 1940s—Jeffrey (born 1941), Bruce (born 1945), and 

Kenneth (born 1948).1 Bruce married, and had two sons—Brian 

and Steven. Kenneth married, and had three children—Dara, 

Michael, and David. Jeffrey married, but had no children.

B. The 1983 Gordon Family Trust

In 1983, Arnold and Claire created The Gordon Family 

Trust, dated June 28, 1983 (the “family trust” or the “trust”). The 

trust was funded, in part, with several parcels of commercial real 

estate as well as stocks and other securities.

As pertinent here, the trust provided that it would be 

broken into three subtrusts—called Trust A, Trust B, and Trust 

C—upon the death of either Arnold or Claire. Trust A would hold 

all of the surviving spouse’s separate property as well as one-half 

of the couple’s community property. Because the surviving 

1 Because these family members all share the same last 

name, we use first names for clarity’s sake. We mean no 

disrespect.
4

spouse would be individually entitled to the property in Trust A, 

the surviving spouse would have the power to use and devise the 

income and principal of Trust A however they wished. Trust B 

and Trust C would hold all of the deceased spouse’s separate 

property as well as the other half of the couple’s community 

property. More specifically, Trust B would be a “bypass trust” 

containing stocks and other securities, while Trust C would be a 

qualified terminable interest property trust (or QTIP trust) 

designed to qualify for the unlimited federal estate tax marital 

deduction and contain various parcels of real property. Because 

the surviving spouse would not be personally entitled to the 

property in Trust B and Trust C, the surviving spouse’s power to 

access the property in Trust B and Trust C would be more 

limited: The surviving spouse could draw upon the income 

generated from the property in those two subtrusts, but could

invade or alienate the principal of those subtrusts only if needed 

for their “care, support and maintenance.” Upon the surviving 

spouse’s death, any property in Trust A not devised by the 

surviving spouse during her lifetime and all properties in Trust B 

and Trust C would be divided into shares among Arnold and 

Claire’s still-living sons (or, to a lesser degree, a deceased son’s 

spouse) and the grandchildren. 

C. Further events

1. Arnold’s death

Arnold died on March 25, 1989.

2. Claire’s relationship with her family

Among her three sons, Claire was “closest” with Kenneth. 

However, Claire had “strained relationship[s]” with Kenneth’s 

wife and his three children. 
5

Between 1997 and 2006, Claire went back and forth 

disinheriting one or more of Kenneth’s children from the trust, 

and toward that end executed a number of amendments to the 

trust. In January 2006, Claire executed the twelfth and final 

amendment to the trust that disinherited all three of Kenneth’s 

children under the trust. 

These amendments were all drafted by attorney Reeve 

Chudd (Chudd), who was a partner at Ervin Cohen & Jessup LLP 

(the law firm).

Because Claire wanted to maintain her close relationship 

with Kenneth, she did not tell him about her disinheritance of his 

children until 2014 or 2015, and did not tell her son Bruce about 

it until 2016.

3. Creation of the LLCs

Soon after Claire executed the final amendment to the 

trust in January 2006, Claire’s accountant told Chudd that Claire 

was now open to allowing her three sons to receive current 

income from three of the commercial real estate properties held 

in Trust C, and that doing so would reduce the estate taxes due 

upon her death because any subsequent appreciation in the value 

of those properties would—by virtue of this new arrangement—

be “out of [the] Estate.”

With Chudd’s assistance, Claire took the following steps. 

First, Claire in December 2006 created three LLCs. Into each, 

she transferred one of the income-producing commercial 

properties in Trust C; consistent with that subtrust’s limitations, 

Claire named Trust C as the owner of each LLC. Second, Claire 

had Trust C transfer ownership of each LLC to Trust A; in 

exchange, Trust A executed promissory notes to Trust C for the 

value of the properties. Third, and because the LLCs’ ownership 
6

interests were in Trust A over which Claire had more control,

Claire in April 2007 assigned a 30 percent interest in each LLC to 

each of her three sons and retained a 10 percent interest in each 

LLC for herself. 

As pertinent here, the operating agreement for each LLC 

drafted by Chudd provides that a member of the LLC can

transfer his “Economic Interest” to anyone, but can only transfer 

his “Membership Interest” (which includes the right to vote as 

well as the “Economic Interest”) (1) only “with[] the consent of all 

of the [other] Members” or (2) without that unanimous consent, 

but only if the transfer is to any of the “descendants of the 

marriage of [Claire and Arnold]” (either directly or through a 

trust).2 Thus, nothing in the LLCs’ operating agreements

2 In full, sections 6.1 and 6.2 of the operating agreements 

(which were identical for each LLC) read as follows:

“6.1 Transfer and Assignment of Interests. No 

Member shall be entitled to transfer, assign, convey, 

sell, encumber or in any way alienate (collectively, 

‘transfer’) all or any part of his or her Membership 

Interest without the consent of all of the Members, 

which consent may be withheld unreasonably. The 

term ‘Membership Interest’ means Economic Interest 

plus all other rights of a Member under the Act or 

this Agreement, including, but not limited to, the 

right to vote or participate in the management of the 

Company and any right to information concerning 

the business and affairs of the Company. The term 

‘Economic Interest’ means only the right to receive 

distributions of the Company’s assets and allocations 

of income, gain, loss, deduction, credit and similar 

items from the Company pursuant to this Agreement 

and the Act. Notwithstanding the foregoing, without 

the consent of the other Members, a Member may 
7

prevented Kenneth (or, for that matter, Jeffrey or Bruce) from 

transferring their membership interests to Kenneth’s children. 

Although Claire never told Chudd that “her intention” “about 

inheritance” “had changed” in the time between her execution of 

the final amendment to the trust and her creation of the LLCs, 

Claire also never told Chudd that she wished to prohibit 

Kenneth’s children from obtaining membership interests in the 

LLCs. In the more than 10 years between the execution of these 

documents and Claire’s death, Claire never told anyone that the 

terms of the operating agreements were inconsistent with her 

intent.

assign his or her Membership Interest to (a) one or 

several of the descendants of the marriage of CLAIRE 

GORDON and the late ARNOLD G. GORDON, or (b) a 

trust for which such Member serves as one of the 

Trustees or as sole Trustee so long as the beneficiary 

or beneficiaries of any such trust who shall, upon the 

death [of] the original Member, inherit such original 

Member’s interest transferred to said trust, shall be 

restricted to the descendants of the marriage of 

CLAIRE GORDON and the late ARNOLD G. GORDON.”

“6.2 No Effect to Transfers in Violation of 

Agreement. Any transfer in violation of this Article 

VI shall be null and void at the election of any nontransferring Member, that such Member may elect in 

his, her or its sole and absolute discretion. Any 

transferee other than a Transferee permitted by 

Section 6.1 (‘the Assignee’) shall be entitled to receive 

only the rights of an Economic Interest in the 

Company, and shall not have any other rights of a 

Membership Interest or be a Member, unless all of 

the non-transferring Members agree to admit the 

Assignee as a Member.” 
8

4. Subsequent, unrestricted gifts to Claire’s 

progeny

In 2012, Claire made a gift of $2 million placed in a trust to 

her sons Kenneth and Jeffrey—with $1 million allocated to each. 

Those trust funds were to be distributed outright, and had no 

restrictions on how Kenneth or Jeffrey could use them.

Claire also took out a life insurance policy, paid the 

premiums out of her own funds, and designated that the proceeds 

would be split between her sons (90 percent) and her 

grandchildren (10 percent), without any prohibition on Kenneth’s 

children receiving their share of the proceeds.

5. Claire’s death

Claire died on March 9, 2017, at the age of 100. By this 

time, the value of the Gordon family assets exceeded $40 million.

II. Procedural Background

A. The pleadings

Bruce and his sons Steven and Brian (collectively, 

plaintiffs) sued Chudd and the law firm (collectively, the lawyers) 

for legal malpractice on the theory that the lawyers in drafting 

the LLC operating agreements did not adhere to Claire’s intent 

because they did not prohibit Kenneth’s three children from 

inheriting any interests in the LLCs.3 Had the operating 

agreements done so, plaintiffs alleged, Kenneth’s interests in the 

LLCs would have passed to Jeffrey and Bruce upon Kenneth’s 

death, such that Bruce would have a greater membership 

3 Plaintiffs also sued for breach of fiduciary duty, but the 

trial court granted the lawyers’ motion for judgment on the 

pleadings as to that claim and plaintiffs did not avail themselves 

of the leave to amend granted by the trial court. The claim is 

therefore dead.
9

interest in the LLCs and Bruce’s sons might inherit those shares 

if Bruce elected to devise his interests to them.

B. Motion for summary judgment

The lawyers moved for summary judgment on three 

grounds—namely, (1) they owed plaintiffs no duty of care, (2) 

plaintiffs’ claim was time barred, and (3) Steven and Brian had 

too contingent of an interest to have standing to sue. After full 

briefing and a hearing, the trial court granted summary 

judgment. Specifically, the court ruled that plaintiffs had 

presented “no evidence of Claire’s” intent to disinherit Kenneth’s 

children from obtaining membership interests in the LLCs, such 

that the lawyers owed plaintiffs no duty to effectuate that intent; 

the court rejected plaintiffs’ argument that Claire’s intent to 

disinherit Kenneth’s children in the “separate testamentary” 

trust translated to an intent to preclude their ownership of LLC 

interests.

C. Appeal

After judgment was entered, plaintiffs filed this timely 

appeal.

DISCUSSION

Plaintiffs argue that there is a triable issue of material fact 

as to whether the lawyers owed them a duty to draft the LLC 

operating agreements in a way that precluded Kenneth’s children 

from obtaining any interest in the LLCs; as a result, plaintiffs 

urge, the trial court erred in granting summary judgment for the 

lawyers. Summary judgment is appropriate when the moving 

party shows that “[it] is entitled to a judgment as a matter of 

law.” (Code Civ. Proc., § 437c, subd. (c).) A party is entitled to 

judgment as a matter of law when, among other things, the 

nonmoving party (here, plaintiffs) cannot establish “[o]ne or more 
10

elements of [their] cause of action” (id., subd. (o)(1); see id., subd. 

(p)(2)). A “‘“key element”’” of plaintiffs’ sole cause of action for 

malpractice is “‘“the establishment of a duty by the [lawyer] to 

the claimant.”’” (Moore v. Anderson Zeigler Disharoon Gallagher 

& Gray (2003) 109 Cal.App.4th 1287, 1294 (Moore); accord, 

Bucquet v. Livingston (1976) 57 Cal.App.3d 914, 921 (Bucquet) 

[duty is the “all important element”].) Absent a duty, plaintiffs 

cannot establish an element of their malpractice cause of action 

and defendants are entitled to summary judgment. Whether a 

duty exists is a question of law that we independently assess. 

(Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 

26, 57.) We also independently determine whether a trial court’s 

grant of summary judgment was appropriate. (Jacks v. City of 

Santa Barbara (2017) 3 Cal.5th 248, 273.)

I. The Law of Malpractice

A. A lawyer’s duties, generally

A lawyer has a “duty . . . to use such skill, prudence, and 

diligence as members of [the legal] profession commonly possess 

and exercise” when representing a client. (Coscia, supra, 25 

Cal.4th at p. 1199.) A client may accordingly sue the lawyer for 

legal malpractice if the lawyer breaches that duty, that breach 

proximately injures the client, and the client suffers actual loss or 

damage. (Ibid.; Budd v. Nixen (1971) 6 Cal.3d 195, 200.)

Although the lawyer’s duty typically runs only to the client 

because that duty arises from the privity of contract that forms 

the lawyer-client relationship (Borissoff v. Taylor & Faust (2004) 

33 Cal.4th 523, 529; Berg & Berg Enterprises, LLC v. Sherwood 

Partners, Inc. (2004) 131 Cal.App.4th 802, 826), a lawyer can 

sometimes owe a duty to third parties who are the intended 

beneficiaries of the lawyer’s legal work for the client, such as 
11

when the lawyer is retained by the client to draft a will, a 

testamentary trust, or an inter vivos trust or gift. (Heyer, supra, 

70 Cal.2d at p. 228; Lucas v. Hamm (1961) 56 Cal.2d 583, 590-

591 (Lucas); Bucquet, supra, 57 Cal.App.3d at pp. 920-921; 

Borissoff, at p. 530.)

The fact that a lawyer creates a will, trust, or gift for the 

client that benefits a third party does “not automatic[ally]” give 

rise to a duty running from the lawyer to the third party that is 

actionable in a malpractice claim. (Bucquet, supra, 57 

Cal.App.3d at p. 921; Ventura County Humane Society v. 

Holloway (1974) 40 Cal.App.3d 897, 903 (Ventura County 

Humane Society); Boranian v. Clark (2004) 123 Cal.App.4th 

1012, 1017 (Boranian); Moore, supra, 109 Cal.App.4th at p. 1295.) 

Because malpractice is a common law tort, and because “duty” in 

the context of such torts reflects a conclusion made by the 

courts—based on considerations of public policy—that one person 

should be liable to another (Dillon v. Legg (1968) 68 Cal.2d 728, 

734; Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 221; 

Radovich v. Locke-Paddon (1995) 35 Cal.App.4th 946, 954-955 

(Radovich)), the question of whether a lawyer has a duty to a 

nonclient third party is similarly based on an amalgam of 

competing public policy considerations. 

Fortunately, our Supreme Court has already articulated 

eight factors bearing on whether a lawyer should owe a duty to a 

nonclient, and those factors fall into three groups. The first 

group of factors looks to “the extent to which the transaction 

[between the lawyer and the client] was intended to affect the 

[nonclient] plaintiff” (the first factor). (Lucas, supra, 56 Cal.2d at 

p. 588.) The clearer it is that the client intended to affect (that is, 

to benefit) the nonclient plaintiff, the more “foreseeabl[e]” the 
12

harm due to any malpractice is to the nonclient plaintiff (the 

second factor), the greater the “degree of certainty that the 

[nonclient plaintiff] suffered injury” (the third factor), the greater 

the “closeness of the connection between [the lawyer’s] conduct 

and the [nonclient] plaintiff’s injury” (the fourth factor), and the 

more that recognizing a duty furthers “the policy of preventing 

future harm” (the sixth factor).4 (Ibid.; see also Ventura County 

Humane Society, supra, 40 Cal.App.3d at pp. 906-907 [noting how 

the second through fourth as well as sixth factors largely turn on 

the first factor]; Radovich, supra, 35 Cal.App.4th at p. 964 

[same]; Paul, supra, 235 Cal.App.4th at p. 1098 [same].) As 

vividly illustrated by the number of factors related to the client’s 

intent to benefit the nonclient plaintiff, the clarity of the client’s

intent is accordingly “central to the duty analysis.” (Paul, at p. 

1097.) The second group of factors examines the “likelihood that 

impos[ing] liability [on the lawyer to the nonclient plaintiff] 

might interfere with the [lawyer’s] ethical duties to the client” 

(the seventh factor). (Boranian, supra, 123 Cal.App.4th at p. 

1017; accord, Goodman v. Kennedy (1976) 18 Cal.3d 335, 344 

(Goodman).) A lawyer’s “paramount” and “primary” duty is to 

the client and, more immediately, to carrying out the client’s 

intent (Ventura County Human Society, at pp. 904-905; Boranian, 

at pp. 1014, 1019), so courts are less willing to impose a duty 

running from the client to a nonclient plaintiff if recognizing that 

4 Another factor courts consider in determining whether a 

duty exists is the “moral blame attached to the [lawyer’s] 

conduct” (the fifth factor). (Biakanja v. Irving (1958) 49 Cal.2d 

647, 650.) However, this factor is “rarely appl[ied] as part of 

the[]” analysis of duty when it comes to claims of legal 

malpractice. (Osornio v. Weingarten (2004) 124 Cal.App.4th 304, 

321, fn. 15 (Osornio).) 
13

additional duty might interfere with the lawyer’s chief duty to 

the client (Boranian, at p. 1018; Moore, supra, 109 Cal.App.4th at 

p. 1299). The third group of factors assesses whether the 

recognition of a duty running to the nonclient plaintiff—and the 

resultant “recognition of liability” against the lawyer—“would 

impose an undue burden on the profession” (the eighth factor)

(Lucas, at p. 589), either by (a) making the lawyer “subject to 

conflicting duties to different sets of [nonclient] beneficiaries” 

(Moore, at p. 1299; Boranian, at p. 1020), or (b) saddling the 

lawyer with open-ended liability that could act as a disincentive 

for lawyers to practice in that area of law and hence dry up 

access to the legal services in that area (Ventura County Humane 

Society, at p. 905).

B. A lawyer’s duty to a nonclient, specifically

After balancing the factors articulated above, the California 

courts have uniformly settled upon the following rule: A lawyer 

has a duty to a nonclient third party only if the client’s intent to 

benefit that third party (in the way the third party asserts in 

their malpractice claim) is “clear,” “certain” and “undisputed.” 

(Heyer, supra, 70 Cal.2d at p. 229 [“certain”]; Paul, supra, 235 

Cal.App.4th at pp. 1097, 1098 [“clear”; “undisputed”]; Radovich,

supra, 35 Cal.App.4th at pp. 958-959 [“certain”]; Moore, supra, 

109 Cal.App.4th at p. 1299 [“certain”].) In other words, courts 

will recognize a duty to a nonclient plaintiff—and thereby allow

that plaintiff to sue the lawyer for legal malpractice—only when 

the plaintiff, as a threshold matter, establishes that the client, in 

a clear, certain and undisputed manner, told the lawyer, “Do X” 

(where X benefits the plaintiff).
14

There are a few reasons why the courts have consistently 

insisted upon this heightened showing when it comes to the

clarity of the client’s intent.

First, it is only when the client’s intent to benefit the 

nonclient third party is abundantly clear that the courts can be 

sure that the third party’s malpractice claim is enforcing the 

client’s wishes, which is the ‘“main purpose”’ of a malpractice 

lawsuit—no matter who is prosecuting it. (Paul, supra, 235 

Cal.App.4th at p. 1098; accord, Garcia v. Borelli (1982) 129 

Cal.App.3d 24, 32 (Garcia); Ventura County Humane Society, 

supra, 40 Cal.App.3d at p. 903.)

Second, the pertinent factors support the recognition of a

duty running to the nonclient plaintiff only when the client’s 

intent to benefit that nonclient is clear, certain and undisputed. 

When the client’s intent meets this heightened standard, there is 

no doubt that the transaction between the lawyer and the client 

was intended to affect the nonclient plaintiff, which means that 

the injury to the plaintiff from the lawyer’s negligence in carrying 

out that intent is foreseeable, the injury to the plaintiff is more 

certain, the connection between the lawyer’s conduct and the 

plaintiff’s injury is closer, and it is more likely that allowing the 

malpractice claim to move forward would prevent future harm. 

When the client’s intent meets this heightened standard, it is 

more likely that the nonclient plaintiff’s interests in prosecuting 

a malpractice claim perfectly represent the client’s interests, 

thereby reducing the likelihood that a duty running from the 

lawyer to the nonclient plaintiff would put the lawyer in an 

ethical quandary. (Paul, supra, 235 Cal.App.4th at p. 1100 [if 

“there is no dispute regarding the decedent’s intent, the 

imposition of liability will not compromise the [lawyer’s] duty of 
15

undivided loyalty to the testator”].) And when the client’s intent 

meets this heightened standard, there is less danger that the 

lawyer will be subject to conflicting duties to different nonclient 

beneficiaries because only those beneficiaries as to whom the 

client’s intent is crystal clear may sue for malpractice. This

heightened standard also reduces the danger of open-ended 

liability for lawyers because it can be decided as a matter of law, 

either on demurrer or summary judgment (because a nonclient

plaintiff would be unable to raise a factual dispute about the 

client’s intent absent evidence that the client had a clear, certain 

and undisputed intent to benefit the plaintiff). (Chang v. 

Lederman (2009) 172 Cal.App.4th 67, 83 (Chang) [so noting].)

California courts have routinely insisted that nonclient 

plaintiffs bringing malpractice claims adduce clear, certain and 

undisputed evidence of the client’s intent to benefit them in the 

way they are seeking to vindicate. In Heyer, supra, 70 Cal.2d 

223, the client tasked her lawyer with drafting a will that left her 

estate only to the client’s two daughters and told the lawyer she 

was about to get married. Heyer held that the daughters could 

sue the lawyer for malpractice when the lawyer failed to account 

for how the client’s marriage would disrupt her clearly 

articulated intent to pass her estate to only her daughters. (Id.

at pp. 225-229.) In Bucquet, supra, 57 Cal.App.3d 914, the client 

tasked the lawyer with drafting an inter vivos trust in a manner 

that would reduce estate taxes. Bucquet held that the trust’s 

beneficiaries could sue when the lawyer’s use of a general power 

of appointment (rather than a more tax-savvy mechanism) 

disrupted the client’s clearly articulated intent to reduce those

taxes. (Id. at pp. 918-919.) In Garcia, supra, 129 Cal.App.3d 24, 

the client tasked the lawyer with ensuring that some of the 
16

property that was delineated in his will remained his separate 

property and would be passed to his son. Garcia held that the 

son could sue the lawyer when the lawyer’s careless drafting 

disrupted the client’s clearly articulated intent to ensure that the 

property was designated as separate property. (Id. at pp. 29, 32.) 

In Osornio, supra, 124 Cal.App.4th 304, the client tasked her 

lawyer with drafting a will that would leave all of her property to 

the woman who served as the client’s care custodian. Osornio

held that the care custodian could sue the lawyer when the 

lawyer’s failure to obtain a “certificate of independent review” 

necessary to permit an otherwise disqualified care custodian to 

inherit disrupted the client’s clearly articulated intent to benefit 

the care custodian. (Id. at pp. 329, 334.) And in Paul, supra, 235 

Cal.App.4th 1088, the client tasked his lawyer with drafting an 

amendment to his testamentary trust that gave several items of 

property to his children and not his wife. Paul held that the 

children could sue the lawyer when the lawyer’s amendment 

allowing the wife also to inherit that property disrupted the 

client’s undisputed intent that his children (and children alone) 

inherit. (Id. at pp. 1091, 1093, 1097.)

C. The limits of a lawyer’s duty to a nonclient

The carefully delineated rule that a nonclient plaintiff may 

sue a lawyer for malpractice only when the client’s intent to “Do 

X” (that is, to do something to benefit that plaintiff) is clear, 

certain and undisputed means that there are several scenarios in 

which the lawyer owes no duty to that nonclient plaintiff. Two of 

those scenarios are relevant here.

First and most obviously, a lawyer owes no duty to a 

nonclient plaintiff to effectuate the client’s directive to “Do X”

when the nonclient’s claim raises a question about what “X” is—
17

that is, where there is a question about whether the client 

intended to benefit the plaintiff or how the client intended to do 

so. (Chang, supra, 179 Cal.App.4th at p. 82 [no liability to a third 

party “where there is a question about whether the third party 

beneficiary was, in fact, the decedent’s intended beneficiary”]; 

Boranian, supra, 123 Cal.App.4th at p. 1018 [no liability to a 

third party “where there is a substantial question about whether 

the third party was in fact the decedent’s intended beneficiary”].) 

Because uncertainty regarding the client’s intent 

necessarily means that the client’s intent is not clear, certain or 

undisputed, the absence of a duty in this scenario is 

unsurprisingly dictated by the analysis of the factors bearing on 

whether to recognize a duty. When the client’s intent behind the 

directive to “Do X” is anything less than abundantly clear, there 

is by definition greater doubt about whether the transaction 

between the lawyer and the client was intended to benefit the 

nonclient plaintiff. As a consequence, the plaintiff’s injury is a 

less foreseeable result of the lawyer’s conduct, the plaintiff’s 

injury is less certain, the connection between the lawyer’s 

conduct and the plaintiff’s injury is less close, and it is less likely 

that allowing the malpractice claim to move forward would 

prevent future harm. (Paul, supra, 235 Cal.App.4th at p. 1098 

[so noting].) When the client’s intent is anything less than 

abundantly clear, it is more likely that the client’s interests will

end up conflicting with the nonclient plaintiff’s interests, thereby 

placing the lawyer in an “untenable position of divided loyalty.” 

(Boranian, supra, 123 Cal.App.4th at p. 1014.) What is more, 

courts will inevitably encounter “difficulties of proof” in resolving 

this conflict because the one person who can most authoritatively 

speak to the client’s intent—namely, the client—will in all cases 
18

involving testamentary interests be dead. (Moore, supra, 109 

Cal.App.4th at p. 1297; Radovich, supra, 35 Cal.App.4th at p. 

964.) And when the client’s intent is anything less than 

abundantly clear, there is a greater danger of conflicting duties 

between competing beneficiaries as well as a greater likelihood

that the lawyer will be hit with a flood of malpractice claims 

brought by nonclient plaintiffs asserting that the client “once 

promised them X” and the like; this potential liability would 

place an “intolerable” “burden” on the legal profession. (Chang, 

supra, 172 Cal.App.4th at p. 84.)

California courts have unfailingly rejected the existence of 

a duty where there is a question about “X.” In Ventura County 

Humane Society, supra, 40 Cal.App.3d 897, the client directed the

lawyer to designate that a charity with a specific name inherit 

part of her estate. When it later came to light that no charity 

bore that specific name provided by the client, a charity with a 

similar name sued the lawyer for malpractice. The court 

dismissed the claim, reasoning that the client’s intent to benefit 

the plaintiff was “ambiguous,” such that the plaintiff could not 

bring suit. (Id. at 902-905.) And in Chang, supra, 172

Cal.App.4th 67, the client executed a trust that named the 

nonclient plaintiff, but the plaintiff sued the lawyer for 

malpractice claiming that the client had intended to revise that 

trust to increase the plaintiff’s share of the estate. The court 

dismissed the claim, reasoning that the client’s intent to revise 

the bequest did not appear anywhere in the trust, that the 

plaintiff’s assertion about the client’s intent at best presented a 

“question” about the client’s intent, and that simply raising a 

“question” about the client’s intent did not meet the standard 

that the client’s intent was abundantly clear. (Id. at pp. 82-84.)
19

Second, a lawyer has no duty to a nonclient plaintiff beyond 

implementing the client’s clear directive to “Do X” (when, as 

noted above, X benefits that nonclient plaintiff). The lawyer has 

no duty to remind the client to follow through with implementing 

the client’s directive once the lawyer has prepared the requested 

documents (Radovich, supra, 35 Cal.App.4th at pp. 954, 965 [no 

duty for failing to remind the client to execute a new will that the 

client had asked the lawyer to draft]), no duty to “urge the [client] 

to consider . . . alternative plan[s]” to forestall will contests by 

persons who would lose out once the client’s intent was 

effectuated (Boranian, supra, 123 Cal.App.4th at pp. 1019-1020), 

no duty to effectuate an expression of intent from the client that 

falls short of a directive (Hall v. Kalfayan (2010) 190 Cal.App.4th 

927, 929, 935-938 [no duty for failing to follow up with a client to 

see if the client wanted the lawyer to draft a new will when the 

client never asked the lawyer to do so, but had casually expressed 

a desire to change the then-existing disposition of her estate], and

no duty to evaluate whether the client has the mental capacity to 

make a directive that disinherits the nonclient plaintiff (Moore,

supra, 109 Cal.App.4th at p. 1290). In other words, a lawyer’s 

duty to a nonclient does not extend to being a babysitter, a risk 

mitigation strategist, a sounding board, or a mental health 

specialist for the client. Making a lawyer liable in malpractice to 

a nonclient for failing to act in any role beyond the role of 

implementing the client’s undisputed intent to benefit that 

nonclient is bad public policy because it places an “incentive [on 

the lawyer] to exert pressure on the client to complete and 

execute estate planning documents summarily” (Radovich, at p. 

965), a result that contravenes the lawyer’s overarching duty of 

loyalty to the client.
20

II. Analysis

Applying the principles articulated above, we conclude that 

the lawyers did not owe plaintiffs a duty to draft the LLC 

operating agreements in a way that disinherited Kenneth’s 

children because Claire’s intent to disinherit Kenneth’s children 

from being assigned any interest in the LLCs was not, as a 

matter of law, clear, certain or undisputed. We reach this 

conclusion for two reasons.

First, this is the conclusion mandated by the governing 

legal rule because the undisputed facts in this case present the 

scenario where there is uncertainty about the intent of Claire 

that plaintiffs are trying to effectuate in their malpractice claim. 

Claire’s intent to disinherit Kenneth’s children from holding any

interests in the LLCs appears nowhere in the LLC operating 

agreements themselves (Chang, supra, 172 Cal.App.4th at p. 82 

[intent is clear where nonclient plaintiff “was an expressly named

beneficiary of an express bequest”]) and was never conceded by 

the lawyers (Paul, supra, 235 Cal.App.4th at p. 1100 [intent is 

clear where lawyer admits to what client’s intent was]). To the 

contrary, it is undisputed that Claire never told Chudd of a desire 

to prevent Kenneth from passing his interest in the LLCs to his 

children, as well as undisputed that Claire—in the 10-plus years 

between executing the LLC operating agreements and her 

death—never expressed any discontent with the terms of the LLC 

operating agreements.

Plaintiffs’ chief response is that Claire does have a clearly 

articulated intent to prohibit Kenneth’s children from receiving 

any interest in the LLCs. Plaintiffs’ position boils down to the 

following syllogism: The LLCs and the testamentary trust are 

part of Claire’s “integrated estate plan”; Claire expressed a clear 
21

intent to disinherit Kenneth’s children from her testamentary 

trust when she amended it in 2006; therefore, Claire had the 

same clear intent to disinherit Kenneth’s children from taking 

any interest in the LLCs.

We reject plaintiffs’ argument for several reasons. 

To begin, the net effect of the syllogism is to require a court

to infer that the intent that a person has when fixing the 

distribution of their property at the time of their death is the 

intent they have when distributing any of that property through 

inter vivos transfers prior to their death. But this inference is 

not a reasonable one. Under plaintiff’s syllogism, all it takes for 

an inter vivos transfer of property to be part of an “integrated 

estate plan” is that the property be subject to distribution under 

a will or testamentary trust and that the inter vivos transfer

made after the will or trust is created be capable of reducing the 

amount of estate taxes due. Yet these attributes are true of every

inter vivos transfer: Property not transferred away through an 

inter vivos transfer necessarily remains part of a person’s estate 

and hence is always subject to distribution under the person’s

will or testamentary trust, and an inter vivos transfer of property 

will necessarily remove the property from the estate and hence

always reduce estate taxes. Given the sheer breadth of inter 

vivos transfers that would be considered part of a person’s 

“integrated estate plan,” plaintiffs’ proffered inference of intent is 

not reasonable because people regularly transfer their property to 

different recipients at different points in their lives. That is 

precisely what Claire did here. She clearly did not want 

Kenneth’s children to inherit any of the property left in her estate 

at the time of her death, but evinced no qualms whatsoever about 

those children getting some of the $1 million she gave to Kenneth 
22

in 2012 or sharing in the life insurance proceeds that would be 

paid out when she died. Put differently, Claire quite reasonably 

had multiple different intents regarding Kenneth’s children; 

consequently, her failure to tell Chudd that “her intention” 

“about inheritance” had changed between the final amendment to 

the trust and creating the LLCs was fully consistent with 

allowing Kenneth’s children to receive interests in the LLCs. 

More to the point, and contrary to what plaintiffs repeatedly 

insist in their briefs, plaintiff’s proffered inference is nowhere 

near compelling enough, by itself, to meet the high threshold 

necessary to create a duty that can support a malpractice claim 

by a nonclient plaintiff. That is because a person’s intent 

regarding how to distribute their property when they die—even if 

it might allow a court to infer some evidence of their intent 

behind inter vivos transfers of their property—does not constitute 

evidence of a clear, certain and undisputed intent with regard to 

those inter vivos transfers. 

Further, an analysis of the various factors bearing on 

whether to recognize a duty supports our rejection of plaintiffs’

“integrated estate plan” argument. Because a person’s intent 

regarding the disposition of their property at the time of their 

death is fairly weak evidence of their intent with regard to inter 

vivos transfers, there is greater doubt that the client intended to 

benefit a nonclient plaintiff with a particular inter vivos transfer 

merely because the client intended to benefit that plaintiff in 

their testamentary disposition. This greater doubt means that 

the plaintiff’s injury is a less foreseeable result of the lawyer’s 

conduct in effectuating the inter vivos transfer, that the 

plaintiff’s injury is less certain, that the connection between the 

lawyer’s conduct and the plaintiff’s injury is less close, and that it 
23

is less likely that allowing the malpractice claim to move forward 

would prevent future harm. This greater doubt also means that 

it is more likely that the client’s interests will end up conflicting 

with the nonclient plaintiff’s interests. And because the client’s 

intent regarding the inter vivos transfer is murky when drawn 

solely from the client’s testamentary intent, allowing a 

malpractice claim to exist whenever a client’s inter vivos transfer 

deviates from the client’s testamentary disposition of property 

would place an intolerable burden upon the legal profession by 

subjecting lawyers to malpractice claims by beneficiaries named 

in the will whenever a client takes the commonplace action of 

choosing to benefit different people with their inter vivos 

transfers than the people who will inherit from them at the time 

of death. Even if we confine our analysis of burden to the burden 

in a given case, and even though the universe of possible thirdparty malpractice plaintiffs would be limited to persons named in 

the will, such beneficiaries will be able to sue whenever any inter 

vivos transfer is made after a testamentary instrument is 

created; this would add up to quite a burden.

Second, we conclude that the lawyers did not owe plaintiffs 

a duty to draft the LLC operating agreements in a way that 

disinherited Kenneth’s children from obtaining any interest in 

the LLCs because such a duty would obligate the lawyers to act 

as a sounding board and babysitter, effectively requiring them to 

“second guess” Claire’s otherwise clear directive. If, as plaintiffs 

urge, a client’s intent regarding who should inherit their property 

at the time of death creates an inference of the same intent for 

any and all inter vivos transfers, then the client’s previously 

expressed testamentary intent would forever after operate as a 

sort of “super-intent” that would seemingly be controlling unless 
24

and until the client affirmatively expressed a contrary intent. So 

in a case, such as this one, where the client says “Do Y” in 

effectuating an inter vivos transfer, a lawyer who knows that the 

client’s will or testamentary trust says, “Do X” would be obligated 

to ask the client: “I know you said you wanted to ‘Do Y’ for this 

inter vivos transfer, but you previously said in your will or 

testamentary trust that you wanted to ‘Do X,’ so which is it—X or 

Y?” This calls upon the lawyer to second guess the client. What 

is more, it puts the lawyer in the middle of a potential conflict 

between the people who are the beneficiaries of X and the people 

who are the beneficiaries of Y. 

Plaintiffs resist our analysis with what can be grouped into 

four further arguments.

First, plaintiffs urge that their syllogism is valid because a 

person’s “integrated estate plan” always includes both their will 

and testamentary trusts and inter vivos transfers of property 

covered by that will or trust, such that a client is rightly 

presumed to have the same intent as to all aspects of their estate 

plan. For support, plaintiffs cite Genger v. Delsol (1997) 56 

Cal.App.4th 1410 and Burch v. George (1994) 7 Cal.4th 246. 

Genger and Burch held that a beneficiary’s assertion of an 

interest in property that is in the decedent’s estate at the time of 

the decedent’s death triggered the “no contest” clauses contained 

in each decedent’s will or testamentary trust. (Genger, at pp. 

1420-1422; Burch, at pp. 251-263.) These cases do not aid 

plaintiffs. To start, Genger and Burch are inapt. They deal with 

the scope of express “no contest” clauses in wills and 

testamentary trusts, and do no more than give effect to the 

“uncontroverted” intent of the testator as reflected in those 

express clauses. (Burch, at pp. 254-255, 258.) Here, by contrast,
25

plaintiffs are asking us to import a testator’s intent from a 

testamentary trust into an inter vivos transfer document that, on 

its face, contradicts that testamentary intent. What is more, the 

challenges that triggered the no contest clauses in Genger and 

Burch concerned properties that were still part of the estates at 

the time of the testators’ deaths (and thus subject to the “no 

contest” clauses in the wills or testamentary trusts); indeed, the 

property challenged in Genger was the very “cornerstone” of the 

decedent’s “integrated estate plan”—a plan that would have 

“unravel[ed]” if left open to challenge. (Genger, at pp. 1421-1422.) 

Here, by contrast, the property at issue has been removed from 

the Gordon family’s estate by the inter vivos transfers at issue in 

this case. Thus, neither Genger nor Burch supports plaintiffs’ 

broad assertion that everything a person does with the property 

they own after they make a will or testamentary trust is part of 

their “integrated estate plan.” 

Second, plaintiffs attempt to qualify their syllogism—and 

thereby narrow the reach of the inference of intent that it 

mandates—by arguing that an inter vivos transfer is part of a 

person’s “integrated estate plan” (and hence subject to their 

proffered inference of intent) only where, as here, the inter vivos

transfer has a “temporal proximity” to the person’s earlier 

execution of their will or testamentary trust and where the inter 

vivos transfer is not “random.” But how proximate in time must 

an inter vivos transfer be to be “temporally proximate”? And 

when is an inter vivos transfer “random” versus not random 

given that all transfers are necessarily intentional? These 

proffered “limits” on the scope of plaintiffs’ inference of intent are 

malleable, flimsy and manipulable. They would make a lawyer’s 

malpractice liability to nonclient plaintiffs turn on questions that 
26

would inevitably be subject to factual dispute and thus could not 

be resolved prior to trial; it would therefore place the same 

intolerable burden on lawyers as plaintiffs’ unlimited syllogism. 

Third, plaintiffs express their disagreement with several 

aspects of the trial court’s reasoning in granting summary 

judgment—namely, that the trial court erred in (1) insisting that 

Claire’s intent be derived from the LLC operating agreements, 

because that insistence somehow wrongly conflates the element 

of duty with the element of breach of duty, and (2) focusing on the 

intent “element.” These disagreements are both irrelevant and 

incorrect. They are irrelevant because our task in independently 

evaluating the summary judgment ruling means that we are 

reviewing the court’s ruling and not its reasoning. (Minish v. 

Hanuman Fellowship (2013) 214 Cal.App.4th 437, 455.) 

Plaintiffs’ disagreements are also incorrect. The trial court’s 

insistence upon clear, certain and undisputed evidence of Claire’s 

intent properly focuses on the very question of duty; the court 

was not examining the breach of duty element. Plaintiffs

disagree, insisting that the clarity of the testator’s intent is 

relevant to the breach element rather than the duty element. 

Plaintiffs are wrong: The cases we cite above all deal with the 

duty element, which is why they discuss the public policy factors 

that define duty (rather than the case-specific inquiry attendant 

to whether a lawyer’s conduct in any given case breaches that 

duty). To the extent plaintiffs are arguing that the court erred in 

looking at the LLC operating agreements in a vacuum because 

Claire’s intent to disinherit Kenneth’s children would have been 

expressed in those operating agreements but for the lawyers’ 

malpractice, it is plaintiffs who are conflating duty and breach. 

And plaintiffs’ argument that only the intent “element” was at 
27

issue rests on a misapprehension of the law: The only “element” 

at issue is duty; intent is but one of many factors bearing on 

whether to recognize such a duty. 

Lastly, plaintiffs insist that any deficiencies in their case 

are cured by the declaration submitted by their expert witness, 

which they point out was never contradicted by a competing 

expert declaration from the lawyers. Plaintiffs are wrong. 

Plaintiffs’ expert opined that (1) the LLCs “were a part of Claire’s 

. . . integrated estate plan” and that her intent regarding the 

LLCs “must” therefore “be viewed in concert with the trust 

agreement,” and (2) the lawyers “breached the applicable 

standard[] of care.” The first opinion effectively opines that the 

lawyers owe plaintiffs a duty. We have concluded otherwise, and 

“it is well settled that ‘expert testimony is incompetent on the . . . 

question whether [a legal] duty [of care] exists because this is 

question of law for the court alone’ to decide.” (QDOS, Inc. v. 

Signature Financial, LLC (2017) 17 Cal.App.5th 990, 1004.) The 

second opinion that the lawyers breached the standard of care 

similarly suggests that they owed plaintiffs a duty in the first 

place. But that suggestion is wrong because it assumes its 

conclusion. (Issakhani v. Shadow Glen Homeowners Assn., Inc.

(2021) 63 Cal.App.5th 917, 935 [“The standard of care is relevant 

only if there is a duty of care for it to impose. The standard of 

care presupposes a duty; it cannot create one.”].)

* * *

Because summary judgment was properly granted due to 

the absence of any duty running from the lawyers to plaintiffs, 

we have no occasion to reach the alternative grounds for 

affirmance (namely, that plaintiffs’ claims are time barred or that 

Brian and Steven lack standing).
28

DISPOSITION

The judgment is affirmed. The lawyers are entitled to their 

costs on appeal.

CERTIFIED FOR PUBLICATION.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

ASHMANN-GERST