Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIC857088, Judith F. Hayes, Judge.
McINTYRE, J.
Cynthia Kaiser appeals a judgment after a jury found against her in this action for professional negligence against her former law firm, Simpson & Brenner, LLP, and its attorneys. She contends the trial court abused its discretion in allowing respondents' expert to testify regarding the ultimate issue of whether her application to file a late claim against a public entity under the Government Tort Claims Act (Gov. Code, § 810 et seq. (the Act)) would have been granted. (All other undesignated statutory references are to the Government Code.) We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On December 18, 2001, Kaiser, an employee of Gambro Healthcare, was injured in a slip-and-fall accident. The accident occurred at Palomar Medical Center (Palomar), where Gambro had assigned Kaiser that day.
After the accident, Kaiser filed a claim for workers' compensation with Gambro and a report of unsafe conditions with Palomar. Kaiser initially received treatment for her injuries at the University of California, San Diego's Thornton Hospital. In April 2002, after her condition dramatically worsened, Kaiser sought further medical treatment. A June 2002 M.R.I. showed a herniated disc impinging on Kaiser's sciatic nerve. Her physician recommended back surgery to correct the condition.
Shortly after she learned she needed surgery, Kaiser retained the law firm of Rose, Klein & Marias to prosecute her workers' compensation claim. On September 27, 2002, Kaiser retained Simpson & Brenner to prosecute a third-party liability claim against Palomar.
On December 17, 2002, Simpson & Brenner filed an action against Palomar for Kaiser's personal injuries in the superior court. Palomar successfully demurred to the complaint on the ground that it was a public entity and Kaiser had not alleged compliance with the Act, nor had she sought leave to file a late claim as required by section 911.4. A motion for reconsideration and an appeal, both brought by Simpson & Brenner on Kaiser's behalf, did not succeed.
Kaiser subsequently brought this action alleging that Simpson & Brenner and its attorneys negligently failed to file an application to file a late claim against Palomar as required by section 911.4. Kaiser asserted the circumstances surrounding her injury would have warranted relief from the six-month statute of limitations for the filing of a claim imposed by section 911.2. By special verdict, a jury found Simpson & Brenner's conduct in failing to move under section 911.4 for relief from the six-month limitations requirement did not amount to professional negligence.
DISCUSSION
1. General Principles
The plaintiff must establish the following elements of a cause of action for professional negligence: (1) a duty by the attorney to use such skill, prudence and diligence as members of the profession commonly possess; (2) the attorney's breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage. (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 536.) To establish a breach, the plaintiff must show that the attorney's advice was "so legally deficient when it was given that he [or she] may be found to have failed to use 'such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake.' [Citation.]" (Dawson v. Toledano (2003) 109 Cal.App.4th 387, 397.)
To establish causation and damages, the plaintiff is required to prove that but for the defendant's negligent acts or omissions, she 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; accord, DiPalma v. Seldman (1994) 27 Cal.App.4th 1499, 1506-1507.) This requirement essentially requires a "trial-within-a-trial" of the underlying case. (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 834; accord, Viner v. Sweet, supra, 30 Cal.4th at p. 1241.)
The trial-within-a-trial method does not recreate what the trier of fact would have done, but instead requires the jury to determine what a reasonable court or jury would have done. (Mattco Forge, Inc. v. Arthur Young & Co., supra, 52 Cal.App.4th at p. 840.) The standard is an objective one, with the malpractice jury to decide what should have been, not what the result would have been, or could have been, or might have been, had the matter been before a particular judge or jury. (Ibid.; see also Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 973 (Piscitelli).) Thus, if the issue in the underlying action was a factual one, the jury in the malpractice action must decide what the underlying trier of fact would have concluded. (Piscitelli, supra, 87 Cal.App.4th at pp. 969-971.)
2. The Act
The Act imposes a six-month statute of limitations for tort claims against public entities. (§ 911.2.) If the claimant fails to submit a timely claim, it may apply to the public entity, within a reasonable time not to exceed one year after accrual of the claims, for leave to present a late claim. (§ 911.4.) If an application for leave to present a late claim is denied, the claimant must, within six months of the denial of the application, petition the court for an order relieving it from the Act's claim presentation requirement. (§ 946.6.) To obtain relief from the entity or the court, the claimant must show, inter alia, that "[t]he failure to present the claim was through mistake, inadvertence, surprise or excusable neglect and the public entity was not prejudiced in its defense of the claim by the failure to present the claim within the time specified[.]" (§ 911.6, subd. (b)(1); accord, § 946.6, subd. (c)(1).)
3. Propriety of King's Expert Testimony
An expert witness may offer an opinion based on his experience, training and education, related to a subject "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact" (Evid. Code, § 801), including an opinion regarding an ultimate issue to be decided by the trier of fact (Evid. Code, § 805). This principle does not, however, "bestow upon an expert carte blanche to express any opinion he or she wishes." (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1178.)
We review a trial court's determination of whether to admit or exclude expert testimony for abuse of discretion. (Mateel Environmental Justice Foundation v. Edmund A. Gray Co. (2003) 115 Cal.App.4th 8, 25.) "The trial court's 'discretion is only abused where there is a clear showing [it] exceeded the bounds of reason[.]'" (People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 640 .)
In this appeal, Kaiser contends the trial court abused its discretion and violated its prior in limine ruling by allowing expert King to testify that Simpson & Brenner did not violate the standard of care in failing to seek leave to file a late claim because the initial six-month statute of limitations had expired by the time Kaiser retained Simpson & Brenner and therefore, the case was "dead on arrival." Citing Piscitelli, supra, 87 Cal.App.4th 953, Kaiser asserts this testimony constituted inadmissible opinion evidence regarding the ultimate issue of whether Palomar would have granted her application to file a late claim or whether a court would have granted relief from the Act's claim presentation requirement.
"When a client seeks to recover damages for his attorney's negligence in the prosecution or defense of the client's claim, the client must prove causation—that 'but for that negligence a better result could have been obtained in the underlying action.' [Citations]." (Piscitelli, supra, 87 Cal.App.4th at p. 973.) In Piscitelli, the plaintiff stockbroker hired the defendant lawyer to bring an action against the plaintiff's former employer. (Id. at p. 965.) The lawyer failed to opt the plaintiff out of a class action settlement, resulting in the dismissal of the plaintiff's claim. (Id. at pp. 966-967.) The plaintiff sued the lawyer for professional negligence in failing to opt the plaintiff out of the class action, and a jury found the plaintiff would have prevailed in the underlying case and awarded him compensatory and punitive damages. (Id. at pp. 967-968.)
On appeal, the lawyer asserted that the trial court erred in allowing the plaintiff's expert witness to testify that the plaintiff would have obtained a favorable outcome had he been able to present his case to a panel of New York Stock Exchange arbitrators. (Piscitelli, supra, 87 Cal.App.4th at pp. 970-971.) We agreed and held "the court improperly shifted the jury's responsibility to decide the issue by permitting Piscitelli's expert to, in essence, testify that arbitrators would have granted Piscitelli monetary relief... had the matter been presented to them. To entrust that ultimate determination to an expert, i.e., to allow the expert to reach the ultimate question of whether Piscitelli's underlying arbitration would have been successful, invades the jury's function." (Id. at p. 974.) In light of the trial court's failure to instruct the jury on the rules governing the underlying arbitration, we held the error in admitting the expert's testimony was prejudicial and reversed. (Id. at pp. 974-975.)
Here, the trial court properly applied Piscitelli to preclude the parties' experts from testifying as to whether the hospital board would have granted Kaiser's section 911.6 application to file a late claim. The court's discussion of the issue with counsel concluded with the following colloquy:
"THE COURT: Well, the problem is Piscitelli seems to address the subject of witnesses who come in and talk about what usually happens at these hearings. It disapproves that practice of letting that testimony go forward, unless I'm wrong, in my reading of Piscitelli. That is a bit of a problem for you.
"I know what you want to tell them is the way they make their decision is that they don't ever grant these things.
"[DEFENSE COUNSEL]: Which is actually what happens.
"THE COURT: After actually doing some government tort practice, I can tell you is that in my experience that happens too. But I can't testify to that before the jury, and Piscitelli would seem to say that even an expert can't come in and say--or a percipient witness can't say I've sat there for ten years and I've never seen them grant one of those."
Although we view the precise contours of the court's ruling as ambiguous in light of the entire record, the parties apparently interpreted the ruling to only preclude their experts from expressly testifying as to whether Palomar or a court would have granted Kaiser's application under section 911.6 of the Act. In fact, the court sustained Kaiser's objections on the two occasions Simpson & Brenner's counsel asked King whether Palomar would have granted her leave to file a late claim or whether a court would have granted relief from the Act's claim presentation requirement.
Kaiser nonetheless points out that King repeatedly testified that her case was "dead on arrival" at Simpson & Brenner's office, and that, by the time she brought her case to Simpson & Brenner, her rights were "set in stone" because of her failure to act diligently. Although this testimony came in without objection, Kaiser now contends that these statements constituted improper opinion testimony as to causation in violation of the court's in limine ruling. While we do not express an opinion as to the propriety of this testimony under Piscitelli, its admission was not precluded by the court's in limine ruling. Because Kaiser failed to object to this testimony at trial, we deem her claims of error in its admission waived. (See Evid. Code § 353; Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486.) Accordingly, we perceive no error in the admission of King's expert testimony.
DISPOSITION
The judgment is affirmed. Respondent to recover costs on appeal.
WE CONCUR: McCONNELL, P. J., NARES, J.