Wednesday, July 20, 2016
Art Dealer’s Son Too Late to Sue for Legal Malpractice—C.A.
By KENNETH OFGANG, Staff Writer
The son of a prominent Los Angeles art dealer waited too long to bring a malpractice suit against the attorneys who prepared his father’s estate plan, the Court of Appeal for this district has ruled.
Div. Eight Monday affirmed an order granting summary judgment to McDermott Will & Emery in the action brought by James Rhys Kantor.
The plaintiff was one of the children of Paul Kantor, whose galleries featured works by Richard Diebenkorn, Robert Motherwell, Mark Rothko, Adolph Gottlieb and Willem de Kooning as they were achieving prominence in the 1950s and 1960s.
Kantor died in 2002. He had been married to James Kantor’s stepmother, Ulrike Kantor, from 1960 to 1979 and again from 1997 until his death.
His previous marriage ended in divorce.
Before he married Ulrike Kantor for the second time, he executed a trust instrument leaving his artwork to whichever of his children survived him by at least 30 days.
When he remarried, he executed a new trust instrument creating the Kantor Family Trust, leaving his “tangible personal property” including “works of art” to a survivor’s trust. Under its terms, Ulrike Kantor would receive the trust property if she survived her husband.
The Kantors used attorneys from McDermott Will in order to update their estate plan six months before Paul Kantor died.
The lawyers prepared a will transferring all of Paul Kantor’s assets to the Kantor Family Trust, and a new trust instrument providing that if his wife survived him, she would, as surviving trustee, distribute his tangible assets according to a personal effects list he would prepare. Any assets not listed would be allocated to a survivor’s trust.
Separately, $300,000 was allocated, effective upon his death, to James Kantor, with another $300,000 payable to him upon Ulrike Kantor’s death. A month after he executed those documents, he deposited $700,000 in James Kantor’s trust.
Paul Kantor died Dec. 23, 2002, not having prepared the personal effects list. Under the terms of the trust, all of the artwork passed to his wife.
Millions in Sales
Ulrike Kantor sold more than $7 million in artwork from her husband’s collection in 2007. In 2011, James Kantor sued his stepmother and his father’s longtime accountant, Arnold Kaufman, claiming his father never intended for Ulrike Kantor to obtain the entire collection.
The court disagreed, and confirmed the disposition of the collection on Feb. 26, 2013.
Just shy of one year later, James Kantor sued McDermott Will & Emery. He subsequently discharged his lawyers, after they had moved to withdraw, and was representing himself with opposition to a pending summary judgment motion due.
Los Angeles Superior Court Judge Lawrence Cho denied his request to continue the hearing, but allowed him to argue without having filed written opposition. Cho ruled that the defendants were entitled to judgment based on the statute of limitations, for lack of standing, and for lack of causation.
Justice Madeleine Flier, in an unpublished opinion for the Court of Appeal, said Cho was correct in ruling that the action was time-barred, and that it was unnecessary for the appellate panel to rule on the other two grounds.
Flier noted that the plaintiff himself pled the allegation that the “wrongful act or omission” for which he was suing occurred before his father’s death, when the defendants “failed to properly prepare and execute” Paul Kantor’s estate plan, thereby depriving the plaintiff of a share of his father’s art collection. Suit was not filed until more than a decade later, long after the one-year limitations period expired, the justice said.
She rejected the argument that the statue was tolled because the plaintiff did not suffer “actual injury” until the court in his prior action ruled against him in February 2013. It was beyond argument, Flier said, that James Kantor was harmed when his father died and the artwork passed to his stepmother.
The jurist went on to say that Cho did not abuse his discretion by denying a continuance of the summary judgment hearing in order to permit further discovery. There was nothing the plaintiff could have discovered that would have defeated the limitations defense, she said, nor did he show that he diligently pursued discovery prior to seeking the continuance.
Attorneys on appeal were Eric Y. Nishizawa for the plaintiff and Gibson, Dunn & Crutcher’s James P. Fogelman, Shannon E. Mader and Lily Bu for the defendants.
The case is Kantor v. McDermott Will & Emery, B264278.
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