Opinion
B223232
12-21-2011
YURY CHERNAVSKY, Plaintiff and Appellant, v. GUROVICH & ASSOCIATES et al., Defendants and Respondents.
Yury Chernavsky, in pro. per., for Plaintiff and Appellant. Victor Law Offices and Robert M. Victor for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication i ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC 328693)
APPEAL from a judgment of the Superior Court of Los Angeles County, Ernest Hiroshige, Judge. Affirmed.
Yury Chernavsky, in pro. per., for Plaintiff and Appellant.
Victor Law Offices and Robert M. Victor for Defendants and Respondents.
Yury Chernavsky appeals from the superior court's grant of a motion for judgment under Code of Civil Procedure section 631.8 brought by respondents Gurovich and Associates, Dmitry Y. Gurovich and Elon Berk after the close of appellant's case-in-chief. Appellant's opening brief, which is devoid of any citations to the record or legal authority, raises no issues cognizable on appeal, and his reply brief is unpersuasive. We affirm.
All further statutory references are to the Code of Civil Procedure unless otherwise noted.
FACTS AND PROCEDURAL HISTORY
On February 14, 2005, appellant filed the present action against respondents. The complaint alleged respondents committed legal malpractice in representing appellant in a prior action against appellant's former attorneys, Altman & Morris (Altman action). In the Altman action, appellant claimed Altman & Morris negligently failed to prevent a foreclosure of appellant's real property (quiet title action).
Trial in the present action was bifurcated into three phases. In the first phase, appellant was required to establish that, absent the negligence of Altman & Morris, appellant would have obtained a more favorable result in the quiet title action. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241 ["the plaintiff must establish that but for the alleged negligence of the defendant attorney, the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred"].) The trial court ruled that appellant was required to prove "'a case-within-a-case-within-a-case,'" noting the case within the present case was appellant's legal malpractice action against Altman & Morris, which in turn was based on appellant's claim that Altman & Morris had failed to properly prevent the foreclosure of appellant's property in the quiet title action. The court determined appellant was required to show in the first trial phase that, absent Altman & Morris's alleged negligence, he "would have obtained a more favorable result in the quiet title action."
After appellant rested his case-in-chief, respondents filed a motion for judgment under section 631.8. Among other things, respondents argued that appellant's action was barred by the one-year statute of limitations set forth in section 340.6. Respondents cited appellant's trial testimony to the effect that, as of December 22, 2003, he had decided to replace respondents with Attorney Armand Tinkerian in the Altman action. Respondents argued that the complaint in the present action, filed on February 14, 2005, was brought more than one year after appellant decided to discharge respondents as his attorneys; accordingly, the present action was barred by section 340.6.
Section 340.6, subdivision (a) provides, in pertinent part: "An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first."
Section 340.6, subdivision (a)(2) provides, "in no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time" that "[t]he attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred."
The trial court took the motion for judgment under submission and then issued a tentative decision granting the motion.
The tentative decision indicated that as of December 22, 2003, appellant had decided that Attorney Tinkerian would replace respondents in representing appellant in the Altman case. The court also determined the retention of Tinkerian to replace respondents ended the attorney-client relationship between appellant and respondents. The tentative decision indicated that appellant had sustained damages as early as December 9, 2003, when the court had granted a motion in the Altman action to deem requests for admission admitted. The court found that as of December 22, 2003, when appellant decided that Tinkerian would replace respondents in the Altman action, appellant "had information of the circumstances sufficient to place a reasonable person in inquiry concerning [respondents'] alleged negligence." When appellant hired Tinkerian to replace respondents, the court concluded, "it was implicit that Tinkerian's hiring was to remedy certain mistakes made by [respondents]." Because appellant's complaint in the present action was filed on February 14, 2005, the court tentatively concluded that appellant was barred by the one-year statute of limitations.
The trial court additionally tentatively found that appellant had failed to meet his burden of proof of establishing he would have obtained a more favorable result in the foreclosure action but for the negligence of his first attorneys.
The trial court's tentative decision, dated January 26, 2010, directed the clerk to fax notice of the court's ruling to counsel and provided the time to request a statement of decision would run from such date. No request for statement of decision was ever made.
Appellant filed an appeal from "the ruling on the order for judgment after Phase 1" on March 23, 2010. On the same date, appellant's counsel substituted out as attorney and appellant substituted himself in propria persona.
CONTENTIONS
Appellant's three-page opening brief contains no reference to the record or to legal authority, except for a single reference to the reporter's transcript. The opening brief does not attempt to show error in the trial court's rulings. Rather, appellant asks this court to allow him an opportunity to "prove once and for all the original premise of this case," i.e., that the trust deed on the property that was the subject of the quiet title action for which he originally retained Altman & Morris was paid off. Not surprisingly, respondents object to appellant's failure to raise an appealable issue in his opening brief and attempt to relitigate issues already finally determined in a prior action.
In his reply brief, appellant belatedly quotes passages from the reporter's transcript and asserts the trial court erred in (1) concluding his claim is barred by the statute of limitations and (2) refusing him the right to prove the loan on his property was paid in full.
Points and arguments raised for the first time in a reply brief may be deemed abandoned. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 ["We treat the issue as abandoned and do not address it on the merits"]; see 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 723, pp. 790-791 [improper and unfair to raise new points on reply]; Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894-895, fn. 10 [court will not consider points raised for first time in reply brief, unless good reason is shown for failure to present them earlier].) Appellant has shown no good reason for his delay in raising new matter in the reply brief. However, we have reviewed the record and the matters raised in the reply brief and find appellant's arguments to be unmeritorious. (Greenlining Institute v. Public Utilities Com. (2002) 103 Cal.App.4th 1324, 1329, fn. 5.)
STANDARD OF REVIEW
A party may move for judgment under section 631.8 after the opposing party has rested its case. The trial court's findings on such a motion "are entitled to the same respect on appeal as any other findings and are not reversible if supported by substantial evidence." (Slater v. Alpha Beta Acme Markets, Inc. (1975) 44 Cal.App.3d 274, 278; see also Canales v. City of Alviso (1970) 3 Cal.3d 118, 126; San Diego Metropolitan Transit Development Bd. v. Handlery Hotel, Inc. (1999) 73 Cal.App.4th 517, 528 (Handlery); Heap v. General Motors Corp. (1977) 66 Cal.App.3d 824, 829-830.) We view the evidence in the light most favorable to respondents. (Handlery, supra, at p. 528.) Thus, when two or more inferences can be reasonably drawn from the facts, we are without power to substitute our deductions for those of the trial court. (Board of Education v. Jack M. (1977) 19 Cal.3d 691, 699; Slater, supra, at p. 279; Rodriguez v. North American Rockwell Corp. (1972) 28 Cal.App.3d 441, 447.) Our power begins and ends with the determination as to whether, on the whole record, there is substantial evidence, contradicted or uncontradicted, that will support the trial court's determination. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)
DISCUSSION
1. The Court's Order Is Appealable
Both parties assume without discussion that the court's minute order granting respondents' motion for judgment, together with the incorporated tentative decision, is an appealable order. However, the court's tentative decision does not purport to be a final order. The tentative decision recites, "This Tentative Decsion (TD) is rendered per [section] 632 and [California Rules of Court, rule] 3.1590[;] if a timely request for Statement of Decision (SOD) is made, counsel for [respondents] is ordered to prepare a Proposed SOD in timely response." The minute order entered by the court and served upon the parties is entitled, "Ruling on Submitted Matter/Notice of Entry of Order." The order simply stated that "[respondents'] motion for judgment after Phase I of trial is granted." Apparently, no party requested a statement of decision under section 632.
All further rule references are to the California Rules of Court.
However, rule 3.1590(b) contemplates the creation of a subsequent document constituting a judgment, as it provides that "[t]he tentative decision does not constitute a judgment and is not binding on the court. . . ." Rule 3.1590(h) further specifies that "[i]f no party requests or is ordered to prepare a statement of decision and a written judgment is required, the court must prepare and serve a proposed judgment on all parties . . . or the court may order a party to prepare, serve, and submit the proposed judgment . . . ." Rule 3.1590(i) similarly allows for the preparation and filing of a written judgment when the court deems a statement of decision to be waived. Rule 3.1590(l) further provides for the signing and filing of a judgment when a written judgment is required and states, "The judgment constitutes the decision on which judgment is to be entered under . . . section 664." Section 664 states that "[i]f the trial has been had by the court, judgment must be entered by the clerk, in conformity to the decision of the court, immediately upon the filing of such decision." Section 664 further provides, "In no case is a judgment effectual for any purpose until entered."
The tentative decision upon which appellant bases his appeal conforms to none of these requirements. However, it is well settled that the substance or effect of a judgment, not its designation, determines its finality. (Estate of Lock (1981) 122 Cal.App.3d 892, 897; see also MHC Financing Limited Partnership Two v. City of Santee (2005) 125 Cal.App.4th 1372, 1392; Estate of Conroy (1977) 67 Cal.App.3d 734, 737, fn. 1.) Appellate courts have discretion to treat a memorandum of decision or statement of decision as an appealable order or judgment if (1) it constitutes the trial court's final determination on the merits, and (2) is signed and filed. (Lock, supra, at p. 896; see also Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901; Solano County Employees' Assn. v. County of Solano (1982) 136 Cal.App.3d 256, 258.) Here, although entitled a "tentative decision" and incorporated in a minute order, the court's tentative decision in effect is a final judgment. The tentative decision is signed by the judge and bears a filing stamp indicative of its filing. It recites that "the motion for judgment after phase I of trial is granted in [respondents'] favor." (Italics added.) It further declares that "[t]his Tentative Decision resolves all issues before the Court in the Court trial . . . ." The minute order of the same date gives notice of entry of the order and also reiterates that the motion for judgment "is granted." The tentative decision clearly sets forth the court's final determination on the merits, and there is no indication in the record that any additional order or judgment was ever filed. Neither party has questioned the appealability of the court's minute order and tentative decision.
We therefore treat the minute order and incorporated tentative decision of January 26, 2010, as the final, appealable judgment. We thus turn to appellant's substantive appeal.
2. Appellant's Claim Is Barred by the Statute of Limitations
Section 340.6 bars an action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services not brought within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. Section 340.6, subdivision (a)(2) tolls the running of the statute during the time the attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred, but in no event more than four years. The purpose of the tolling under section 340.6, subdivision (a)(2) is to toll the period of limitations during the time that the client reasonably cannot be expected to initiate a malpractice action because to do so would disrupt an ongoing attorney-client relationship. (Hensley v. Caietti (1993) 13 Cal.App.4th 1165, 1171 (Hensley).) Once the client unambiguously decides the relationship is over, however, tolling under the statute no longer serves its purpose and accordingly comes to an end. (Ibid.)
In the present case, the trial court found that, as of December 22, 2003, appellant had decided that Attorney Tinkerian would replace respondents as his counsel in the Altman action and that retention ended the existing attorney-client relationship between appellant and respondents. The court further found that any cause of action for professional negligence that appellant might have against respondents accrued with Tinkerian's retention, and the one-year statute began to run. (Hensley, supra, 13 Cal.App.4th at p. 1172 [when plaintiff asked new counsel to replace her existing counsel, "the die was cast" ending tolling under § 340.6, subd. (a)(2)].)
Substantial evidence in the record before us supports the court's findings. Appellant testified that on December 19, 2003, he met with respondents to go over responses to discovery. He indicated that Tinkerian attended the meeting to assist him because of a purported "lack of communication" with respondents. On December 22, 2003, after respondents' meeting with appellant and Tinkerian, respondent Gurovich wrote an e-mail to appellant confirming his discussion with appellant to the effect that "Mr. Tinkerian will take over the case . . . ." The e-mail noted that because Tinkerian would be out of the country, however, respondents would be making an ex parte application to continue appellant's deposition, which was set for December 30, 2003. Gurovich testified that it was his understanding after the meeting with appellant and Tinkerian that respondents were being replaced by Tinkerian as appellant's counsel and that appellant never advised him to the contrary.
Appellant's complaint in this action alleged that appellant made reasonable attempts to mitigate his damages as a result of respondents' actions, including engaging a different law firm to move for a new trial after the Altman action was dismissed. The complaint further alleged that a substitution of attorney form was executed on February 15, 2004, and filed on February 18, 2004. At trial, Tinkerian testified he was hired by appellant to replace respondents as appellant's counsel; he signed a substitution of attorney replacing respondents as counsel for appellant in the Altman action. Appellant's expert, Steven Gourley, opined that respondents no longer represented appellant as of the time Attorney Tinkerian came into the Altman action.
Although Tinkerian confirmed a substitution of attorneys form was filed with the court in the Altman action, the original document could not be located in the clerk's file. No one appears to have kept a copy of the document.
Appellant's retention of an attorney to "mitigate his damages" was a clear indication of the breakdown of the attorney-client relationship. That a formal substitution of attorney was not filed until February 18, 2004, or arguably might not have been filed at all, in itself is not determinative. "[T]he failure to formally withdraw as attorney of record, standing alone, will not toll the statute of limitations under the rubric of continued representation." (Shapero v. Fliegel (1987) 191 Cal.App.3d 842, 846.)
Long before the substitution of attorney was filed, appellant was put on inquiry notice. Appellant suffered damages as early as December 9, 2003, when the court in the Altman action ruled that requests for admission propounded upon appellant were deemed admitted. At that juncture, appellant sustained injury from respondents' alleged negligence and knew or should have known of his cause of action. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808 ["plaintiffs are required to conduct a reasonable investigation after becoming aware of an injury, and are charged with knowledge of the information that would have been revealed by such an investigation"]; Gutierrez v. Mofid (1985) 39 Cal.3d 892, 898 [statute commences once one "has suffered appreciable harm and knows or suspects that professional blundering is its cause"].) The breakdown of the attorney-client relationship between appellant and respondents became manifest when appellant informed respondents they were being replaced by Tinkerian as counsel. Respondent Gurovich confirmed this understanding in his December 22, 2003 e-mail to appellant. At that point, "the die was cast." (Hensley, supra, 13 Cal.App.4th at p. 1172.) Gurovich testified appellant never subsequently notified him to the contrary.
Thus, the trial court appropriately found upon the evidence that appellant sustained damages as early as December 9, 2003, and his attorney-client relationship with respondents ended as of December 22, 2003. Appellant's complaint in this action, filed on February 14, 2005, more than one year later, is clearly barred by the one-year statute of limitations.
The record indicates that respondents made two court appearance on appellant's behalf after December 22, 2003. At best, however, those appearances would serve to extend the statute of limitations only by an additional two days, a period insufficient to overcome the limitations bar.
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3. Appellant Fails to Show Reversible Error
Appellant complains in his reply brief that he was "completely blocked" from demonstrating he would have had a more favorable result in the underlying actions but for the negligence of Altman & Morris. Appellant claims the court eliminated any possibility for a fair trial by its refusal to allow him to prove he paid off the original loan, a contention made in the original foreclosure action in which he was represented by Altman & Morris.
Even if it is assumed the court committed error in this regard, no principle is more fundamental to appellate law than the concept of prejudicial error. Because the trial court properly ruled appellant's claim is barred by the statute of limitations, appellant cannot demonstrate a reasonable probability he would have obtained a more favorable outcome absent the court's supposed error in its evidentiary rulings. (People v. Watson (1956) 46 Cal.2d 818, 836; see Cal. Const., art. VI, § 13; § 475; Evid. Code, § 354.) As our Supreme Court has declared, "No form of civil trial error justifies reversal and retrial, with its attendant expense and possible loss of witnesses, where in light of the entire record, there was no actual prejudice to the appealing party." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580.)
DISPOSITION
The judgment is affirmed. Respondents are to recover costs on appeal.
FLIER, J. WE CONCUR: BIGELOW, P. J. RUBIN, J.