Opinion
A111713
12-14-2006
ROSS DODSON, et al., Plaintiffs and Appellants, v. EDWARD M. FISHMAN, et al., Defendants and Respondents.
Plaintiffs first amended complaint against respondents Edward Marc Fishman and Rebecca Lynne Mann was dismissed on the ground the action was time-barred. We agree with plaintiffs that the court erred in concluding that respondents established as a matter of law that the action was time-barred. Accordingly, we reverse and remand the matter for further proceedings.
Plaintiffs timely notice of appeal filed on September 12, 2005, encompasses both the June 27, 2005, judgment dismissing the action against respondents, and August 25, 2005, first amended judgment setting the amount of costs awarded to respondents. (see Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 998.) Additionally, although the judgments do not resolve plaintiffs claims against all named defendants, plaintiffs may properly appeal from the judgments, which are final as to their claims against respondents. (Desaigoudar v. Meyercord (2003) 108 Cal.App.4th 173, 182, fn. 2; Wells Fargo Bank v. California Ins. Guarantee Assn. (1995) 38 Cal.App.4th 936, 941-942, fn. 5.)
FACTS
In June 1996, plaintiffs Ross Dodson and Ona S. Dodson hired respondent Edward Marc Fishman (Fishman) and associates of his law firm, including respondent Rebecca Lynne Mann (Mann) (hereinafter referred to as respondents) to provide "a [d]efense of a quiet title action," Troup v. Dodson (Troup). The Troup action was filed by plaintiffs neighbors to resolve a property dispute. As part of the representation, respondents filed a cross-complaint against City Center Realty and its associates Philis Sargent and Byron Whipple, and Realty World Brokers and Associates and its associate Robert Thompson, the real estate agencies and brokers that represented plaintiffs and the sellers from whom plaintiffs purchased their property in 1993. The cross-complaint was severed and continued as a separate action, Dodson v. City Center Realty (City Center Realty).
The Troup action went to trial on May 12, 1998, resulting in a judgment in favor of plaintiffs. Division Two of this court reversed the judgment. (Troup v. Dodson (Aug. 31, 1999, A084658) [nonpub. opn.].) After remand, the trial court entered judgment in favor of the Troups. Plaintiffs second appeal was unsuccessful, and respondents informed plaintiffs of the adverse judgment in the Troup action shortly after the appellate decision.
The City Center Realty action was also resolved, in part, by motions for summary judgment. On April 10, 2001, the trial court orally granted motions for summary judgment dismissing the complaint against defendants City Center Realty, Philis Sargent, Bryon Whipple, and Robert Thompson. After learning of the adverse rulings and a few days before the court entered its written orders granting summary judgment, plaintiffs signed substitution of attorney forms relieving respondents as counsel in the Troup and City Center Realty actions as of June 15, 2001. According to respondents, plaintiffs discharged them because they believed respondents "had committed errors, and acted negligently, which [plaintiffs] knew and believed caused them harm." For the next two months, plaintiffs represented themselves in both the Troup and City Center Realty actions by serving pleadings, sending letters to opposing parties, filing motions, and filing a notice of appeal in the City Center Realty action.
Named defendant Realty World Brokers and Associates was not a party to these motions for summary judgment.
However, on August 17, 2001, plaintiffs signed a substitution of attorney form consenting to respondents resuming representation of plaintiffs in the City Center Realty action. According to respondents, the representation was for the limited purpose of handling plaintiffs appeal of the judgment in that action, which was not successful. Immediately after notification of the adverse appellate decision in City Center Realty, plaintiffs signed a substitution of attorney form, again terminating the services of respondents, which form was filed on October 24, 2002.
Although the parties June 1996 retainer agreement specifically excluded legal services by respondents for "[a]ny appeal" in which plaintiffs were appellants appealing from a court judgment, respondents contend their representation "was marked by the signing of a Substitution of Attorney" form by plaintiffs on August 17, 2001.
Within one year thereafter, on September 26, 2003, plaintiffs filed their complaint in this action seeking damages for legal malpractice against respondents. In their answer to the first amended complaint, the operative pleading, respondents pleaded the affirmative defense of the statute of limitations.
In their first complaint, plaintiffs also named as defendants Jackie Lynn Martens and Michael Arthur Villa (Villa), described as being "associated in some manner with" Fishman. In their first amended complaint, plaintiffs named as defendants only Fishman, Mann and Villa. Villa is not a party to this appeal.
On January 11, 2005, respondents moved for summary judgment, arguing the complaint against them was time-barred. At the hearing on the motion, the court denied plaintiffs request for a continuance. Additionally, the court refused to consider plaintiffs written opposition because it was not timely served on respondents. Nevertheless, the court permitted plaintiff Ross Dodson to orally oppose the motion. On May 25, 2005, the court granted summary judgment in favor of respondents, dismissing the complaint as time-barred. This appeal ensued.
We note a respondents brief was filed on behalf of Fishman only. In response to this courts inquiry, the parties submitted letters addressing Manns failure to file a brief. After reviewing this courts records, and the parties arguments, we conclude Mann has failed to justify her default in filing a brief. In the absence of any showing of prejudice, we deny her requests for relief from her default.
DISCUSSION
By their motion for summary judgment, respondents sought dismissal of the action based on the affirmative defense of statute of limitations. In order to prevail on a motion for summary judgment, "a defendant . . . has the obligation of conclusively . . . establishing a complete defense" to a plaintiffs causes of action. (ONeill v. Tichy (1993) 19 Cal.App.4th 114, 119 (ONeill).) We conclude that summary judgment was not properly granted because respondents evidence failed to conclusively establish that the complaint was time-barred.
Code of Civil Procedure section 340.6 provides, in relevant part, that an action against an attorney for legal malpractice "shall be commenced within one year after the plaintiff discovers . . . the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. [And,] [i]n no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist: [¶] . . . [¶] (2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred . . . ."
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
In determining when a representation ends, "the clients awareness of the attorneys negligence does not interrupt the tolling of the limitations period" provided that "the client permits the attorney to continue representing the client regarding the specific subject matter in which the alleged negligence occur[s]." (ONeill, supra, 19 Cal.App.4th at pp. 120-121.) However, "[s]ection 340.6, subdivision (a)(2) does not state that the statute of limitations is tolled so long as, from the clients perspective, `the attorney continues to represent [him or her] regarding the specific subject matter in which the alleged wrongful act or omission occurred. Neither, of course, does it state that the statute is not tolled if, from the attorneys perspective, the representation has ceased. Rather, the statutory language requires an objective determination of whether the representation has ended." (Worthington v. Rusconi (1994) 29 Cal.App.4th 1488, 1497.)
In this case, plaintiffs were represented by respondents during two periods relating to the litigation for which respondents were hired in 1996: (a) from June 1996 to June 15, 2001 (hereinafter referred to as the first representation), and (b) from August 17, 2001 to October 24, 2002 (hereinafter referred to as the second representation). The courts ruling was based on its finding that respondents second representation was not "continuous" to the first representation because plaintiffs severed the attorney-client relationship by signing the June 15, 2001, substitution of attorney forms, thereby discharging respondents. Although two months later, respondents agreed to perform additional legal services relating to the same litigation, plaintiffs could no longer claim respondents " `continue[d] to represent "them in the same subject matter because in the first amended complaint they alleged negligent conduct that occurred no later than June 15, 2001, and therefore, plaintiffs had to file their action by June 15, 2002. We conclude the court erred in its ruling.
"[B]y `continues to represent the Legislature meant that the statute of limitations for legal malpractice is tolled as long as the attorney `continues to represent a client who comes to him or her after the potential malpractice manifests itself and before the statute of limitations has run in an attempt to rectify the problem or mitigate damages." (Fritz v. Ehrmann (2006) 136 Cal.App.4th 1374, 1391.) "[T]o qualify as the same subject matter `[t]he activities allegedly constituting continuous representation must relate to the main task or particular undertaking in which the error occurred. . . . [¶] . . . The focus should be on the objectives of the prior retention and whether the present activities fall within those objectives. [Citation.]" (Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1530.) Here, the record shows that after the potential malpractice manifested itself and before the statute of limitations ran, respondents undertook to resume representation of plaintiffs to pursue an appeal of the adverse judgment in the City Center Realty action, which appeal "arose out of, and related to, the same general set of facts as the matter [respondents allegedly] negligently handled." (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1201; see also ONeill, supra, 19 Cal.App.4th at pp. 120-121.) Thus, respondents did not establish as a matter of law that their second representation was not continuous to the first representation on the same specific subject matter in which the malpractice occurred as alleged in the first amended complaint. Accordingly, it was improper for the court to grant respondents summary judgment on the ground that the action was time-barred. The reversal of the summary judgment also requires reversal of the first amended judgment awarding costs to respondents. (Department of Industrial Relations v. Nielsen Construction Co. (1996) 51 Cal.App.4th 1016, 1031.)
In light of our determination, we need not address plaintiffs argument that reversal is warranted because the court abused its discretion in denying their request for a continuance of the hearing on the summary judgment motion. Additionally, because the issue is raised for the first time in their reply brief, we decline to address plaintiffs request for attorney fees if they prevail on appeal, except to note plaintiffs citation of Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464 (Premier Medical) is inapposite. Unlike this case, Premier Medical concerned an award of attorney fees to an appellant who prevailed on a special motion to strike a complaint under section 425.16, which statute authorizes an award of attorney fees to a prevailing party. (Id. at p. 480; see § 425.16, subd. (c).)
DISPOSITION
The judgment filed June 27, 2005, and the first amended judgment filed August 25, 2005, are reversed. The matter is remanded to the superior court to enter a new order denying the motion by defendants Edward Marc Fishman and Rebecca Lynne Mann for summary judgment. Plaintiffs are awarded costs on appeal.
We concur:
Parrilli, J.
Siggins, J.