Filed 4/14/14 Certified for publication 5/7/14 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

ALEXANDER NAMIKAS, 

 Plaintiff and Appellant,

v.

PAUL A. MILLER et al., 

 Defendants and Respondents.

2d Civil No. B244685

(Super. Ct. No. 56-2011-00393530-

CU-BC-VTA)

(Ventura County)

In this "settle and sue" case,1 Alexander Namikas sued his former 

attorneys, Paul A. Miller and the Law Offices of Lowthorp, Richards, McMillan, Miller 

& Templeman P.C. (collectively respondents), for negligently recommending he pay his 

ex-wife permanent spousal support of $7,000 per month. He alleged the settlement was 

excessive because respondents improperly calculated his permanent support obligation 

based upon DissoMaster guidelines instead of a forensic marital standard of living 

analysis. Family Code section 43202 requires trial courts to consider the marital standard 

 

1 This is a type of malpractice action in which the disgruntled client claims the 

underlying case was worth significantly more or less than what he or she settled for. 

(Barnard v. Langer (2003) 109 Cal.App.4th 1453, 1461, fn. 12; Filbin v. Fitzgerald

(2012) 211 Cal.App.4th 154, 157, 167.)

2 All statutory references are to the Family Code unless otherwise stated. 
2

of living, along with numerous other factors, in assessing the need for permanent spousal 

support. 

The trial court granted summary judgment for respondents. It determined 

Namikas had failed to establish a triable issue of material fact as to whether, in the 

absence of the alleged negligence, he would have obtained a more favorable judgment or 

settlement. We affirm. 

FACTS AND PROCEDURAL BACKGROUND3

Namikas married Joanne in 1978. He was a dentist and she a pharmacist. 

Joanne worked part time while their children were growing up, allowing Namikas to 

concentrate on his dental practice. 

Joanne petitioned for dissolution in 2000, after nearly 22 years of marriage. 

At that time, Namikas's annual income was $314,718. Joanne's income was $44,841. 

Namikas agreed to pay Joanne temporary spousal support of $7,080 per month. Joanne 

continued to work part time until 2003, when she entered the Betty Ford Clinic for 

substance abuse treatment. She successfully completed the program, but did not 

immediately resume working. 

Respondents represented Namikas in the dissolution proceeding. Joanne 

was represented by Richard L. Taylor. In June 2004, after extensive negotiations, the 

parties stipulated to entry of judgment based upon a marital settlement agreement (MSA). 

Pertinent to this action, Namikas received the family home and his dental practice, which 

generated monthly income of over $30,000. Joanne received the parties' second home,

plus two properties with combined monthly rental income of $3,000. 

The MSA also provided for permanent spousal support to Joanne of $7,000

per month, $80 less than the temporary support payment. The amount was calculated 

through the DissoMaster program4 based on Namikas's "compromise" monthly income of 

 

3 Our factual statement is based upon the undisputed or established facts appearing 

in the moving and opposing papers on summary judgment.

 

4 DissoMaster is a computer software program widely used by courts to set child 

support and temporary spousal support. (In re Marriage of Olson (1993) 14 Cal.App.4th 
3

$27,902 and Joanne's imputed income of $4,000. A copy of the DissoMaster calculation 

was attached to the MSA. 

Prior to recommending the settlement, Miller informed Namikas the marital 

standard of living is a factor courts consider in awarding spousal support, but did not 

suggest that Namikas obtain a forensic marital standard of living analysis. Namikas 

grudgingly accepted the settlement, in part, because it imputed $4,000 in income to 

Joanne even though she was unemployed, ended the costly dissolution proceeding and 

resulted in after-tax support payments of $3,855 per month. Joanne agreed to pay her 

own attorney fees. 

Over the next few years, Namikas periodically asked respondents about 

modifying support. He was told it was too soon to seek modification. In 2008, Namikas 

consulted with another attorney, who recommended an analysis of Joanne's monthly 

needs based on the marital standard of living. At Namikas's request, respondents retained 

a forensic accountant, William Scott Mowrey, Jr., to perform the analysis. Using the date 

of separation claimed by Joanne, Mowrey determined Joanne had monthly support needs 

of $7,738 to maintain her marital standard of living. Based on that analysis, Namikas 

concluded Joanne needed $738 in monthly spousal support to supplement the $7,000 she 

was receiving in rental income ($3,000) and imputed income ($4,000). 

Subsequently, Namikas retained a different law firm to request 

modification of spousal support. Judge William Liebmann granted the request in 2012. 

Rejecting Mowrey's calculations as outdated, Judge Liebmann "accepted [Joanne's] 

evidence regarding the amount of her reasonable needs, and [found] that a net disposable 

income from all sources of approximately $9,575 [was] sufficient for [all] her needs." He 

recognized Joanne could meet these needs if she worked full-time as a pharmacist, but 

was "not convinced from the evidence presented that she is capable of working that 

schedule at this time, nor that she would have been capable of doing so if she had made 

additional efforts since the entry of the judgment." 

 

1, 5, fn. 3; see Cal. Rules of Court, rule 5.275 [standards for computer software to assist 

in determining support].)
4

Weighing the factors enumerated in section 4320, Judge Liebmann found 

that "[t]he balance of hardships [is] clearly in favor of [Joanne]." He determined that if 

she works 24 hours per week, a monthly spousal support payment of $2,750, along with 

her other sources of income, will meet her needs of $9,575. Judge Liebmann ordered 

Namikas to pay $2,750 per month for two years to give Joanne time to increase her work 

schedule to fully support herself. He reduced support to zero at the end of that period. 

Namikas filed a complaint for legal malpractice against respondents, 

claiming their negligence caused him to pay excessive spousal support. He alleged they 

negligently failed to conduct a marital standard of living analysis prior to recommending 

settlement and had improperly used the DissoMaster program to calculate permanent 

support. Respondents moved for summary judgment, contending they were not negligent 

and that even if they were, Namikas could not prove that Joanne would have settled for 

less than $7,000 per month or that he would have obtained a better outcome at trial. 

Respondents submitted a declaration from Taylor that stated, inter alia, that even if he 

had received Mowrey's calculations at the time of the settlement negotiations, he "still 

would not have agreed to a settlement of the spousal support issue for less than $7,000 

monthly." 

Namikas responded with a declaration from Roslyn Soudry, an 

experienced family law attorney, who opined that respondents' failure to "strongly"

recommend that Namikas obtain a forensic marital standard of living analysis fell below 

the standard of care for attorneys practicing family law in Southern California. Soudry 

offered her expert opinion, based on her experience, that "the fact that permanent spousal 

support was based on a DissoMaster analysis resulted in a higher level of spousal support 

than would have been obtained based on an actual trial of the factors set forth in . . . 

[s]ection 4320." 

The trial court granted the summary judgment motion. It determined a 

triable issue of material fact exists as to breach of the duty of professional care, but not as 

to causation and damages. The court concluded Joanne would not have accepted a 

settlement of less than $7,000 per month even if a forensic standard of living analysis had 
5

been prepared. It stated: "Reasonable minds cannot differ as to the legal effect of this 

evidence: plaintiff could not have obtained a more favorable settlement. As for what 

[plaintiff] might have obtained at trial, [respondents] point out that plaintiff said he didn't 

know whether the court would have awarded Joanne less than $7,000 in spousal support." 

The court further determined there was no evidence of "actual damage to plaintiff as 

opposed to possibility or probability." 

The trial court rejected Namikas's contention that an inference of causation 

and damage may be drawn from the subsequent modification of spousal support. It 

explained: "[Judge Liebmann] in 2012 couldn't go back and find that the spousal support 

the parties agreed to [in 2004] was excessive, even if it was. [He] had to determine that 

circumstances had changed since the settlement, and [he] did. In short, [he] found that 

Joanne had not used sufficient reasonable efforts to improve her financial situation. This 

finding has no bearing on what [a] court might have granted in spousal support had the 

parties not settled." Namikas appeals. 

DISCUSSION

Standard of Review

Summary judgment is proper where there is no triable issue of material fact 

and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., 

§ 437c, subd. (c).) To prevail on a summary judgment motion, the moving defendant has 

the initial burden to show a cause of action has no merit because an element of the claim 

cannot be established or there is a complete defense to the cause of action. (Id. at subd. 

(o); Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) To satisfy this burden, 

the defendant must present evidence which either conclusively negates an element of the 

plaintiff's cause of action, or which shows the plaintiff does not possess, and cannot 

reasonably obtain, needed evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 

826, 855.) Once the defendant has made this showing, the burden shifts to the plaintiff to 

set forth specific facts which show a triable issue of material fact exists. (Merrill v. 

Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.)
6

We review the trial court's decision de novo, considering all the evidence 

presented by the parties (except evidence properly excluded by the trial court) and the 

uncontradicted inferences reasonably supported by the evidence. (Merrill v. Navegar, 

Inc., supra, 26 Cal.4th at p. 476.) The evidence is viewed in the light most favorable to 

the plaintiff, liberally construing the plaintiff's submissions while strictly scrutinizing the 

defendant's showing, and resolving any evidentiary doubts or ambiguities in the plaintiff's 

favor. (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 768.)

Legal Malpractice

To prevail on his legal malpractice claim, Namikas must prove four 

elements: "(1) the duty of the attorney to use such skill, prudence, and diligence as 

members of his or her profession commonly possess and exercise; (2) a breach of that 

duty; (3) a proximate causal connection between the breach and the resulting injury; and 

(4) actual loss or damage resulting from the attorney's negligence. [Citations.]" (Coscia 

v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199-1200; Filbin v. Fitzgerald, supra, 

211 Cal.App.4th at p. 165.) "[F]ailure to prove[ ] any of [the elements] is fatal to 

recovery." (Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1682.) 

The trial court determined, and the parties do not dispute, that triable issues 

of material fact exist regarding whether respondents breached a duty of professional care. 

The question presented here is whether the evidence established the absence of any 

triable issue as to causation and damages.

"In the legal malpractice context, the elements of causation and damage are 

particularly closely linked." (Hecht, Solberg, Robinson, Goldberg & Bagley LLP v. 

Superior Court (2006) 137 Cal.App.4th 579, 591.) The plaintiff must prove, by a 

preponderance of the evidence, that but for the attorney's negligent acts or omissions, he 

would have obtained a more favorable judgment or settlement in the action in which the 

malpractice allegedly occurred. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241; Barnard

v. Langer, supra, 109 Cal.App.4th at p. 1461.) This standard requires a "trial-within-atrial" of the underlying case, in which the malpractice jury must decide what a reasonable 

jury or court would have done if the underlying matter had been tried instead of settled. 
7

(Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 834.) This 

method "'is the most effective safeguard yet devised against speculative and conjectural 

claims . . . . It is a standard of proof designed to limit damages to those actually caused

by a professional's malfeasance. . . .'" (Jalali v. Root (2003) 109 Cal.App.4th 1768, 

1773-1774.) 

"It is not enough for [the plaintiff] to simply claim . . . that it was possible 

to obtain a better settlement or a better result at trial. The mere probability that a certain 

event would have happened will not furnish the foundation for malpractice damages." 

(Barnard, supra, 109 Cal.App.4th at p. 1461.) "'Damage to be subject to a proper award 

must be such as follows the fact complained of as a legal certainty.' [Citation.]" 

(Marshak v. Ballesteros (1999) 72 Cal.App.4th 1514, 1518 (Marshak).) In other words, 

the plaintiff must show that "[he] would certainly have received more money [or had to 

pay less] in settlement or at trial." (Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 

1528, italics added; see Thompson v. Halvonik (1995) 36 Cal.App.4th 657, 662-664

[evidence fails to show that but for that attorney's delay in handling action, case would 

have settled sooner or on more favorable terms].) 

"The requirement that a plaintiff need prove damages to 'a legal certainty' is 

difficult to meet in any case. It is particularly so in 'settle and sue' cases," which are 

inherently speculative. (Filbin v. Fitzgerald, supra, 211 Cal.App.4th at p. 166.) "[T]he 

amount of a compromise is often 'an educated guess of the amount that can be recovered 

at trial and what the opponent was willing to pay or accept. Even skillful and 

experienced negotiators do not know whether they received the maximum settlement or 

paid out the minimum acceptable. Thus, the goal of a lawyer is to achieve a "reasonable"

settlement, a concept that involves a wide spectrum of considerations and broad 

discretion. [¶] Theoretically, any settlement could be challenged as inadequate, and the 

resolution is likely to require a trial. . . .'" (Barnard v. Langer, supra, 109 Cal.App.4th at 

pp. 1462-1463, fn. 13.) 

In Barnard, the plaintiff claimed his attorney's negligence caused him to 

settle an inverse condemnation action for too little money or on different terms. The 
8

court granted a nonsuit, concluding he had only submitted evidence of speculative harm 

and could not establish that, but for his attorney's negligence, he would have received a 

better outcome than was represented by the negotiated settlement. (Barnard v. Langer, 

supra, 109 Cal.App.4th at pp. 1462-1463.) The court observed that the plaintiff was 

required to present "more than a wish list of damages, unsupported by evidence that the 

[defense] would have settled for more, or by expert testimony to show that [the 

plaintiff's] amounts could have been recovered had the case been tried . . . ." (Id. at p. 

1463, fn. omitted.)

Because causation is a question of fact for the jury, it ordinarily cannot be 

resolved on summary judgment. (Vasquez v. Residential Investments, Inc. (2004) 118 

Cal.App.4th 269, 288.) In legal malpractice claims, the absence of causation may be 

decided on summary judgment "only if, under undisputed facts, there is no room for a 

reasonable difference of opinion." (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 

853, 864.) 

Causation and Damages

Applying the foregoing principles, we must decide whether a triable issue 

of material fact exists regarding whether, but for respondents' alleged negligence, 

Namikas would have received a better settlement or outcome at trial. Namikas alleged

that if respondents had advised him to obtain a forensic marital standard of living 

analysis, he would have obtained Mowrey's analysis prior to settlement. He further 

alleged that had that analysis been available, he "never would have agreed to pay $7,000 

per month in support. If Joanne had refused to settle for a reasonable amount close to her 

actual marital standard of living [he] would have insisted on [respondents] trying the 

spousal support issue then." 

Respondents presented evidence, through Taylor's declaration, that even if 

Taylor had been given Mowrey's standard of living analysis in 2004, he would not have 

settled the spousal support claim for less than $7,000 per month. Namikas objected on 

the basis that Joanne, and not Taylor, had authority to settle. In reply, respondents

submitted a declaration from Joanne, who stated: "When agreeing to settle the amount of 
9

spousal support to be paid to me, I always would have followed the advice of my 

attorney, Mr. Taylor, and if Mr. Taylor had advised me not to agree to accept less than 

$7,000 monthly spousal support, I would have followed his advice." Namikas claims that 

Taylor's declaration is inadmissible and that Joanne's declaration was untimely. He also 

contends the trial court abused its discretion by denying his request for a continuance to 

"test" Joanne's declaration through cross-examination. 

It is undisputed Taylor negotiated the support settlement on Joanne's behalf. 

Namikas has not shown Taylor's statements are irrelevant or otherwise inadmissible. 

Although Taylor stated he "would not have agreed to a settlement" of less than $7,000 

per month, instead of saying what his client would have agreed to, he implied he had 

personal knowledge of what Joanne would have done in that situation. Joanne's late-filed 

declaration is more persuasive, but Taylor's declaration was enough to shift the burden to 

Namikas to produce admissible evidence demonstrating a triable issue of fact. (Code 

Civ. Proc., § 437c, subd. (p)(2); Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 

72.) He failed to do so. The record is devoid of any suggestion Joanne would have 

settled for less than $7,000. 

Even if an inference to the contrary could be drawn, there is no evidence as 

to what the settlement amount would have been. Lawsuits often "settle for reasons not 

necessarily related to [their] merits." (People v. Fuiava (2012) 53 Cal.4th 622, 723.) If 

Joanne had agreed to less spousal support, for example, she may have demanded a larger 

property settlement or required that Namikas pay her attorney fees. Thus, any "actual 

harm from respondents' conduct is only a subject of surmise, given the myriad of 

variables that affect settlements . . . . '[T]he mere probability that a certain event would 

have happened, upon which a claim for damages is predicated, will not support the claim 

or furnish the foundation of an action for such damages. [Citations.]'" (Thompson v. 

Halvonik (1995) 36 Cal.App.4th 657, 663; Doe v. Salesian Soc. (2008) 159 Cal.App.4th

474, 481 [plaintiff cannot controvert the moving party's declarations or evidence "based 

on speculation, imagination, guesswork, or mere possibilities"]; see Orrick Herrington & 

Sutcliffe v. Superior Court (2003) 107 Cal.App.4th 1052, 1058 [summary judgment 
10

proper where plaintiff produced no evidence his ex-wife would have agreed to a 

settlement that included the terms he claims were negligently omitted].) 

As to whether Namikas would have received a better outcome at trial, 

respondents produced Namikas's statement during his deposition that he did not know 

whether the trial court would have ordered him to pay less than $7,000 in spousal 

support. Respondents contend this "admission" shifted the burden to Namikas to 

introduce evidence of cognizable damages. (See Visueta v. General Motors Corp. (1991) 

234 Cal.App.3d 1609, 1613.) Namikas responds that because he is not a legal expert, his 

statement was insufficient to shift the evidentiary burden. (Code Civ. Proc., § 437c, 

subd. (p)(2); see Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) Even 

assuming he is correct, we are entitled under Code of Civil Procedure section 437c, 

subdivision (c) to consider "all of the evidence set forth in the papers." (Villa v. 

McFerren (1995) 35 Cal.App.4th 733, 749 [testimony produced by plaintiff, coupled 

with moving party's evidence, shifted burden of proof to plaintiff].) Namikas's opposing 

evidence cured any evidentiary gap in the moving papers by corroborating the speculative 

nature of his damages claim. (Id. at pp. 749-750.) 

Namikas introduced (1) Mowrey's declaration and marital standard of 

living analysis, (2) Soudry's opinion that the use of the DissoMaster calculation resulted 

in a higher level of support than would have been obtained at trial, and (3) Judge 

Liebmann's order reducing spousal support in 2012. This evidence fell short of the 

showing of damage required to survive summary judgment. (See Marshak, supra, 72 

Cal.App.4th at p. 1518.) To the extent this evidence implied that Namikas would have 

received a better outcome had he gone to trial, it failed to show "what that better outcome 

would have been." (Ibid., italics added.) 

Namikas is correct that the trial court would not have used the DissoMaster 

guidelines to calculate permanent spousal support. Unlike temporary spousal support 

orders, permanent support orders must be premised on an analysis of the factors set forth 

in section 4320. (In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 525-528.) 

"Because dissolution of marriage is, in the mathematical sense, a negative-sum game 
11

where each party will not have the same access to the whole of the marital property he or 

she had during the marriage, permanent support orders will usually be lower than 

temporary orders." (Id. at p. 525.) 

"In ordering [permanent] spousal support, the trial court must consider and 

weigh all of the circumstances enumerated in [section 4320], to the extent they are 

relevant to the case before it. [Citations.] The first of the enumerated circumstances, the 

marital standard of living, is relevant as a reference point against which the other 

statutory factors are to be weighed. [Citations.] The other statutory factors include: 

contributions to the supporting spouse's education, training, or career; the supporting 

spouse's ability to pay; the needs of each party, based on the marital standard of living; 

the obligations and assets of each party; the duration of the marriage; the opportunity for 

employment without undue interference with the children's interests; the age and health 

of the parties; tax consequences; the balance of hardships to the parties; the goal that the 

supported party be self-supporting within a reasonable period of time; and any other 

factors deemed just and equitable by the court. [Citation.]" (In re Marriage of Cheriton 

(2001) 92 Cal.App.4th 269, 302-304, fns. omitted.)

Relying upon Mowrey's analysis, Namikas asserts Joanne needed only 

$7,738 per month to maintain the marital standard of living. Because she had undisputed 

monthly rental income of $3,000, Namikas claims that even if the trial court imputed no 

employment income to Joanne given her health issues, any spousal support order would 

have been no more than $4,738 per month. From this, he concludes the $7,000 

settlement was at least $2,262 more than what he would have been ordered to pay 

following trial. Although this result is possible, it is not certain. It is one in a range of 

outcomes that could have occurred based on an analysis of the section 4320 factors. 

Namikas's expert evidence failed to raise a triable issue because it focused 

on the marital standard of living without taking into account all of the relevant statutory 

factors or the broad discretion afforded the trial court in determining the weight to accord 

each factor. (See In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475.) The marital 

standard of living "is not 'an absolute measure of reasonable need, but merely a "basis" or 
12

reference point for determining need and support.' [Citation.]" (In re Marriage of 

Ackerman (2006) 146 Cal.App.4th 191, 207.) The court must consider all of the relevant

statutory factors. (In re Marriage of Cheriton, supra, 92 Cal.App.4th at pp. 302-304.) 

After weighing those factors, the court may "fix spousal support at an amount greater 

than, equal to or less than what the supported spouse may require to maintain the marital 

standard of living, in order to achieve a just and reasonable result under the facts and 

circumstances of the case." (Marriage of Smith, at p. 475.) In particular, "where the 

supporting party has the ability to pay, a trial court has discretion to award spousal 

support at a level above the actual marital standard of living. [Citation.]" (Marriage of 

Cheriton, at p. 308.) 

Eight years after the settlement, Judge Liebmann found the balance of 

hardships favored Joanne. This imbalance was more evident in 2004, when Joanne was 

unemployed and undergoing treatment for substance abuse, while Namikas was earning 

more than $30,000 per month. Given this income discrepancy, Joanne's health and age 

(50), a trial court reasonably could have required Namikas to pay support at a level above 

the marital standard of living to give Joanne time to recover and become self-supporting 

after a 22-year marriage. Namikas produced no evidence suggesting the trial court

"certainly" would have ordered him to pay less than the $7,000 settlement amount. 

(Marshak, supra, 72 Cal.App.4th at p. 1519.) Nor did he show that a lower support 

award necessarily would have resulted in a "better outcome," given the added cost of 

going to trial and his potential liability for Joanne's attorney fees. Indeed, Namikas 

agreed to the settlement, in part, because it avoided further litigation expenses, imputed 

$4,000 in income to an unemployed, long-term spouse with health issues, and resulted in 

after-tax support payments of $3,855 per month. Even in hindsight, these reasons do not 

appear unreasonable. 

Marshak upheld the grant of summary judgment in a similar situation. 

After settling his dissolution proceeding, the plaintiff claimed his attorney negligently 

failed to object to both the overvaluation of his business accounts receivable and the 

undervaluation of the family residence. (72 Cal.App.4th at p. 1519.) The court 
13

determined that even if the plaintiff could prove that the residence was worth more and 

that the receivables were worth less, it does not necessarily mean that "a judge would 

have entered judgment more favorable than that to which he stipulated. Plaintiff has not 

even intimated how he would establish [this result] with the certainty required to permit 

an award of damages." (Ibid.) 

Finally, Judge Liebmann's order modifying spousal support in 2012 also 

failed to raise a triable issue. As the trial court pointed out, the reduction was based on a 

change of circumstances, i.e., Joanne's failure to undertake reasonable efforts to improve 

her financial situation after so many years. Judge Liebmann did not make any findings 

regarding what the support order should have been in 2004. He only considered what 

was appropriate in 2012. It is not logical to infer that a court would have made the same 

or similar order eight years earlier. 

In sum, we agree with the trial court that Namikas did not produce evidence 

to justify a finding of triable issues of fact about whether, without any legal malpractice 

occurring, he would have received a more favorable settlement or outcome at trial. Nor 

does the record as a whole support a conclusion that causation questions remain about 

damages, based on any argument the settlement was excessive in light of all the variables 

and circumstances.5

DISPOSITION

The judgment is affirmed. Respondents shall recover their costs on appeal. 

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.

 

5 Because we affirm the judgment, we need not address respondents' argument that 

tactical immunity insulated them from liability. 
14

Rebecca S. Riley, Judge

Superior Court County of Ventura

______________________________

Michael A. Lotman for Appellant. 

Nemecek & Cole, Jonathan B. Cole, Mark Schaeffer, Steve R. Segura for 

Respondents. 
Filed 5/7/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

ALEXANDER NAMIKAS, 

 Plaintiff and Appellant,

v.

PAUL A. MILLER et al., 

 Defendants and Respondents.

2d Civil No. B244685

(Super. Ct. No. 56-2011-00393530-

CU-BC-VTA)

(Ventura County)

ORDER CERTIFYING OPINION

FOR PUBLICATION

THE COURT:

The opinion in the above-entitled matter filed on April 14, 2014, was not 

certified for publication in the Official Reports. For good cause it now appears that the 

opinion should be published in the Official Reports and IT IS SO ORDERED.