IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CLEAREAR LLC d/b/a ACQUAMD, a Washington Limited Liability Company, and ILICH VAHIMI and KAILA VAHIMI , Husband and Wife, and the Marital Community Which They Comprise,

Appellant,

v. DELUE LAW , PLLC, a Washington Professional Limited Liability Company, and ; DANA DANIEL DELUE a/k/a DAN DELUE, Individually and on Behalf of the Marital Community Comp rised of DANA DANIEL “DAN” DELUE and JANE DOE DELUE. Respondent. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 80773

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DIVISION ONE UNPUBLISHED OPINION

H AZELRIGG , J.

— Ilich Vahim i and a company he formed, ClearEar LLC , brought a legal malpractice claim against an attorney Vahimi hired to review and revise a contract between ClearEar and a manufacturer in China. The plaintiffs alleged that the attorney was negligent because revisions he suggested provided a basis for th e manufacturer to appropriate ClearEar’s intellectual property. The trial court granted the attorney’s motion for summary judgment and dismissed the complaint for lack of causation. Finding no error, we affirm.No. 80773

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2 FACTS Ilich Vahimi invented a medical/homecare device called “A c q uaMD,” to remove water from the ear canal using ultrasound technology. In 2015, Vahimi identified a potential manufacturer for the device in China, Guangdong Shunde Luhua Photoelectric New Material Industrial Co. , L td. ( “ Luhua”). In April 2015, Vahimi formed a corporation, ClearEar, LLC, for the purpose of produc ing and marketing the product. In June of 2015, Vahimi was preparing to travel to China in order to finalize a manufacturing contract with Luhua . After intervie wing several attorneys, Vahimi hired Seattle atto rney Dan DeLue to advise him and ClearEar in connection with the contract. Vahimi gave DeLue a copy of the contract Luhua had proposed and DeLue agreed to review it and propose changes. Vahimi told DeLue t hat his goal was to retain his intellectual property rights to the A c quaMD device. DeLue produced a “redline” version of th e contract with proposed revisions

. 1 After DeLue’s review of the contract was complete, V ahimi asked him to close his file and DeLu e r efunded $600 of the $1,500 Vahimi had paid him. About two wee ks later, on June 13, 2016, Vahimi and the principal of Luhua signed the “ Production Development Agreement

. ” More than a year later, in August 2017, the relation ship between ClearEar
and Luhu a became strained following d isagreements that arose during the manufacturing process

. Vahimi learned that Luhau had made copies of the

1 The contract is written in both Chinese and English. DeLue proposed changes only to the English provisions.No. 80773

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industrial molds and was “selling the A c quaMD device worldwide through four distributors.” When Vahimi later i nformed DeLue of this development , DeLue referred him and ClearEar to another attorney. On May 6, 2019, ClearEar and Vahimi, (c ollectively “ClearEar”) brought a lawsuit against DeLue and his law firm, DeLue Law, P

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. C., alleging legal malpractice. 2 ClearEa r focused on DeLue’s revisions to a provision of the contract in the section governing “Ownership of Technological Achievements.” Before DeLue’s edits , paragraph 3 of that section read : (3) After completion of the sampling work, [Luhua] is entitled to us e the results of follow

- up research and develop ment improvements. Any substantial or creative characteristics of the new technological advances and tech nological achievements will be all owned by [Luhua] DeLue’s redlined version, incorporated into the fin al contract, provided as follows: (3) After completion of the sampling work, [Luhau] is entitled to use the results of follow

- up research and development improvements that are derivative to the purpose of this contract. Those derivative develops 3 and tech nological achievements shall belong to [Luhua]. Any substantial or creative characteristics of the new technological advances and technological achievements which are derivative to this Agreement will be all owned by [Luhua]. ClearEar alleged that, in prop osing the above changes, DeLue’s negligent advice resulted in the “transfer significant and valuable intellectu al property rights” to Luhua. ClearEar claimed that this negligence caused damages, resulting from the loss of ClearEar’s intellectual property rights and lost revenue.

2 The complaint also asserted a cause of action fo r negligent misrepresentation. ClearEar does not challenge the d ismissal of that claim

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3 This is likely a translation or scrivener’s error contained in the dual language contract.No. 80773

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4 The defendants (collectively “ DeLue ” ) moved for summary judgment. DeLue’s motion focused on causation. He argued that any damages to ClearEar were caused solely by Luhua’s p iracy, and not by any proposed changes in the
contract a nd there was no evidence that different contract language could have prevented ClearEar’s alleged damages

. ClearEar opposed the motion, contending that proximate cause is “almost always” a question for the trier of fact. ClearEar also claimed that Luhua specifically relied on language “ approved” by Delue to justify its conduct, and therefore, DeLue was “responsible for the effects of [ those ] changes.” Following a hearing on the motion, the court granted the motio n and dismissed the complaint. Clear Ear timely appealed

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ANALYSIS As below, ClearEar argues that causation , as a general matter, is reserved for the trier of fact and that here in particular, genuine issues of material fact as to causation preclude summary judgment. This court reviews a su mmary judgment order de novo. Loeffelholz v. Univ. of Wash. , 175 Wn.2d 264, 271, 285 P.3d 854 (2012). We review the evidence in the light most favorable t o the nonmoving party and draw all

reas onable inferences in that party’s favor. Klinke v. Famous Re cipe Fried Chicken, Inc. , 94 Wn.2d 255, 256, 616 P.2d 644 (1980). Summary judgment is appropriate where there are no genuine issue s of material fact and the moving party is entitled to judgment as a matter of law. Jones v. Allstate Ins. Co. , 146No. 80773

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Wn.2d 29 1, 300

- 01, 45 P.3d 1068 (2002). A material fact is one upon which the outcome of the litigation depen ds, either in whole or in part. VersusLaw, Inc. v. Stoel Rives , LLP , 127 Wn. App. 309, 319, 111 P.3d 866 (2005). The court should grant summary judgment when reasonable minds c ould reach only one conclusion. Id

. To establish legal malpractice, a plaintiff must show “(1) the existence of an attorney
- client relationship giving rise to a duty of care to the client, (2) act or omission in breach of the duty, (3) damages to the client, and (4) proximate causation between the breach and damages.” Smith v. Preston Gates Ellis, LLP , 135 Wn. App. 859, 863

- 64, 147 P.3d 600 (2006). DeLue moved for summary judgment solely based on lack of proximate causation. For this reason, we address only causation

. “General principles of causation are no different in a legal malpractice action than i n an ordinary negligence case.” Halvorsen v. Ferguson , 46 Wn. App. 708, 719, 735 P.2d 675 (1986). The burden is on the legal mal practice plaintiff to show that the attorney’s negligenc e was the proximate cause of the injury. Hansen v. Wightman , 14 Wn. App. 78, 88, 538 P.2d 1238 (1975) ( abrogated in part by , Bowman v. Two , 104 Wn.2d. 181, 704 P.2d 140 (1985))

. Proximate cause is t he nexus between bre a ch of duty and resulting injury. Halvorsen , 46 Wn. App. at 719

. Proximate cause has two elements: cau se in fact and legal causation. City of Seattle v. Blume , 134 Wn.2d 243, 251, 947 P.2d 223 (1997). “Cause in fact refers to the ‘b ut for’ consequences of an act, that is, the immediate connection between an act and an injury.” Id. at 251

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plaintiff must demonstr ate that “but for” the attorney’s negligence the plaintiff would have obtained a better result. Smith , 135 Wn. App . at 864. Legal causation is based on policy considerations in determining how far the
conseq uences of an act should extend. Blume , 134 Wn .2d at 252. Proximate cause is us ually the province of the jury. Brust v. Newton , 70 Wn. App. 286, 291

- 93, 852 P.2 d 1092 (1993). However, the trial court can decide proximate cause as a matter of law if “ ‘ reasonable minds could not differ. ’ ” Smith , 135 Wn. App. at
864 (quoting Hertog v. City of Seattle , 138 Wn.2d 265, 275, 979 P.2d 400 (1999))

. To avoid summary judgment on p roximate cause, ClearEar had to show that DeLue’s breach of his profe ssional duties caused the loss of its intellectual property and lost revenue

. In the context of this negotiated contract, ClearEar had to show that but for DeLue’s neglige nc e, he would have secured a “better” contract (more favorable to ClearEar) or an improved outcome. See Id. at 864. With no analysis of the specific language DeLue inserted, Cl earEar maintains that paragraph 3 “facilitated” Luhua’s piracy. The plain langua ge of that pro vision does not support this assertion

. The proposed amendments to paragraph 3 clarified that Luhua ’s rights to use research a nd development improv ements were limited to those that were “derivative to the purpose of the
contract

. ” Viewing th is paragraph in the context of the other provisions of the contract, which ClearEar fails to address, it is evident that the challenged language, and the contract in general did not transfer ClearEar’s intellectualNo. 80773

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property interests in the AcquaMD product and prohibited Luhua from producing and marketing the same product. ClearEar fails to mention t hat paragraph 1 of the “Ownership of Technological Achievements” section, as originally proposed by Luhua , provided that the intellectual property rights to the A cquaMD device woul d be jointly owned by ClearEar and the manufacturer

. But t he redlined version of that provision, which Luhau accepted, provides that ClearEar solely retain s the intellectual propert y rights to its product : (1) In the performance of [ the ] contract herein, all the technological achievements and [ r ] elated intellectual property rights [are] owned by both only [ClearEar] as concerns the product and necessary tooling. a nd [Luhua]. [ClearEa r] only at the unit and their subordinate units in rang e , beyond the agreed scope of use, and should be resolved through consultation with [Luhua]. 4 DeLue also proposed amendments to the r ight to manufacture provision that were protect ive of ClearEar. As redlined by DeLu e and memorialized in the final contract , the provision states : (2) In the performance of [ the ] contract herein, the license to the right of manufacturing the products developed by [Luhua] belongs to [Luhua] for the benefit of [ClearEar] o nly. DeLue also added an “ INTELLECTUAL PROPERTY OWNERSHIP ” section to the contract. That section provides , in relevant part, that there would be no transfer of “background technology.” Specifically, any technology or
int ellectual property that was created or developed before the effective date of the contract would be retained by the party who developed such technology or intellectual property. Foreground technology, created in connection with the manufacturing contract , would belong to the party who created it. This section

4 Terms added by DeLue are indicated by underlining and terms deleted indicated by strike through.No. 80773

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expressly gives ClearEar “full and exclusive” ownership of preexisting or “Background” technology and “Foreg round” technology, as it relates to the “product to be manufactured.” This section also confirms Luhua’s ownership of preexisting background technology and of “derivative technological advancements,” as set forth in paragraph 3 of the “Ownership of Technological Achievements” section. The amendment DeLue proposed which assigned rights to “development improvements that ar e derivative to the purpose of this contract ” to Luhua did not facilitate or permit the manufacturer to produ ce and market a product that is undisputedly “exactly the same” as the A cquaMD devic e. ClearEar places great emphasis on the fact tha t when it conf ronted Luhua by e mail about whether it had appropriated ClearEar’s intellectual property, Luhua pointe d to language DeLue proposed in paragraph 3 as justi fication for its actions. However, there are c ritical flaws in its argument. First, in the e mail Clea rEar relies on, Luhua quo ted the language of the initial proposed contract, not the final contract. Luhua asserted that according to paragraph 1 in the “Ownership of Technological Achievements” section, all “technological achievements” and “intellectual p roperty rights” in conn ection with the product are owned j ointly by ClearEar and the manufacturer

. But, as explained, DeLue proposed material changes to that language which Luhua accepted and t he final contract provides for ClearEar’s exclusive intellectu al property rights

. Luhua also cit ed the former language of paragraph 3, omitting the language added by DeLue, which clarified that Luhua’s right to use “follow

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research and development improvements” was limited to “derivative develops” 5 that were “derivative to the purpose of [ the ] contract.” Second, even if it were clear that Lu hua relied on language proposed by DeLue in the final contract to justify its actions, ClearEar makes no attempt to explain why it would be reasonable for Luhua construe those terms as conferring intellectual property rights on the manufacturer as to the Ac quaMD devic e. Luhua was asserting a right to produce and market “exactly the same” product, not a product based on derivative technologica l developments. The contract, as

am ended based on DeLue’s revisions , only gave Luhua rights to derivative technology and improvements, and protected ClearEar’s intellectual property rights to the A c quaMD product itself. ClearEar claims the trier of fact could draw reasonable inferences from the facts to conclude that, but for DeLue’s professional negligence, the manufacturer would have either proceeded with the ori ginal contract or would have accepted other unspecified amendments that fully protected its intellectual property rights. ClearEar cites the following “facts” : (1) Luhua proposed a n initial contract that

was “more favorable” to ClearEar , (2) Luhua accepted all changes proposed by Delue, (3) and Luhua expressly relied on language inserted by DeLue to justify its “pira cy.” These conclusory assertions are not supported by the evidence in the record. ClearEar fails to identify any contract provision that, before revision by DeLue, was more favorable or more protective of its intellectual property rights. And a review o f the red lined contract reveals the opposite. As Delue

5 This is likely a translation or scrivener’s error contained in the dual language contract.No. 80773

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pointed out in his declaration, the contract Luhua originally proposed could be characterized as “fairly one

- sided” and “arguably gave Luhua rights to the technology ClearEar had already developed.”
A nd while Luhua accept ed the majority of amendments DeLue proposed, it did not accept all of them. Luhua rej ected DeLue’s proposals regarding jurisdiction and choice of law. The record does not establish that the manufactur er would have accepted any and a ll terms ClearEar proposed . And more importantly, ClearEar does not describe wha t terms DeLue should have suggested that would have effectively prevented the manufacturer’s act ions. Finally, as noted , Luhua’s claim that it was acting within its contractual rights was based on the language of the preliminary contract , not language proposed by DeLue

. In sum, ClearEar does not point to any facts supporting the inference that it would have “ ‘ achieved a be tter result had the attorney not been negligent. ’ ” Id. at 870 (quoting VersusLaw , 127 Wn

. A pp. at 328 )

. A nd a s here, where the causal connection is “ ‘ so speculative and indirect ’ ” that reasonable minds could not differ , c ausation is a que stion of law fo r the court

. Behla v. R.J. Jung, LLC , 11 Wn. App. 2d 329, 347, 453 P.3d 729 (2019) (quoting Mehlert v. Baseball of Seattle, Inc ., 1 Wn . App. 2d 115, 119, 404 P.3d 97 (2017) ). ClearEar failed to establish a prima facie case of causation and its legal

ma lpr actice case cannot withstand a motion for summary judgment with out such a showing. We affirm the trial court’ s order grant ing su mmary judgment

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11 Affirmed.

WE CONCUR: