Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06AS02365
SCOTLAND, P. J.
Plaintiffs Don Frazier, Charlotte Frazier, and their corporation, Don Frazier, Inc., appeal from the judgment entered in favor of defendants Patrick Greenwell and his law corporation after defendants successfully moved for summary judgment in the plaintiffs’ action for legal malpractice. We shall hereafter refer to plaintiffs as the Fraziers and to defendants as Greenwell.
The Fraziers contend the trial court erred in ruling that their action was barred by the one-year statute of limitations in Code of Civil Procedure section 340.6. (Further section references are to the Code of Civil Procedure unless otherwise specified.) In particular, they say triable issues of fact exist concerning (1) when they discovered Greenwell’s alleged malpractice, (2) when they suffered an actual injury as a result of his malpractice, and (3) whether the statute was tolled because Greenwell continued to represent them after they discharged him as their attorney. We shall affirm the judgment.
FACTS
This action against Greenwell arose out of a default on a lease/purchase agreement between the Fraziers, who owned a nursing facility called Hillcrest Manor, and the lessee/buyers, Hillcrest Enhanced Living, LLC, Susan Darling, and Brent Ort (collectively, Ort). The Fraziers retained Greenwell, who filed a complaint against Ort, alleging breach of contract, anticipatory breach of contract, unlawful detainer, accounting, waste, and breach of the covenant of good faith and fair dealing.
Ort cross-complained against the Fraziers, alleging breach of contract, fraudulent and negligent misrepresentation, fraudulent concealment, and breach of the covenant of good faith and fair dealing. Ort also cross-complained against the real estate professionals and attorneys involved in the transaction, alleging professional malpractice, breach of fiduciary duty and negligent misrepresentation.
The trial court severed the causes of action against the attorneys and real estate professionals, and set the remaining causes of action for trial, except that it bifurcated the issue of damages for resolution at a later date.
The Fraziers prevailed on their unlawful detainer action. But the result on the remaining issues was not as favorable. On November 12, 2004, the court issued a tentative decision in which it found that the Fraziers misrepresented the number of patients and concealed the fact that Hillcrest Manor did not generate enough income to make the rent payments, and that Ort’s inability to make the payments due under the lease was the direct result of the Fraziers’ misrepresentation and concealment. The court found Ort was not liable to the Fraziers for any of the remaining causes of action in their complaint, but the Fraziers were liable to Ort for their misrepresentation concerning the number of patients in the facility, as well as their concealment regarding the financial condition of the business.
Greenwell advised the Fraziers of the tentative decision no later than December 3, 2004, and discussed the need to protect their assets from any ensuing judgment. He advised them to contact an asset-protection attorney in Idaho, where the Fraziers lived. Greenwell declared that he also “discussed what we were going to do to have the ‘tentative decision’ set aside” and “discussed bringing in more parties.”
Greenwell prepared a motion for leave to file a cross-complaint for indemnity against various real estate professionals involved in the real estate transaction, which he would not have done if the tentative decision had not been adverse to the Fraziers.
On January 13, 2005, the Fraziers paid Greenwell $1,395 for work he performed following the adverse tentative decision and for an outstanding balance owed of $109.80. The payment included $560 for preparation of the motion for leave to amend the complaint.
The Fraziers retained Mark Wight, an attorney in Idaho, to advise them concerning the protection of their assets. He told them they should hire a new attorney to handle the Frazier v. Ort case.
On May 19, 2005, the Fraziers met with Greenwell and informed him that they were replacing him with Kevin Seibert as counsel in Frazier v. Ort. They told Greenwell that their Idaho counsel had suggested they replace him as counsel for the remainder of the trial. According to Greenwell, the Fraziers “clearly communicated to me that they were not happy with my representation and they were, therefore, getting a new attorney.” Greenwell told them that he would cooperate in turning over the files to Siebert and that Siebert could call Greenwell if any questions arose.
Greenwell signed the substitution of attorney form on May 31, 2005, and it was filed on June 7, 2005.
In November 2006, Siebert obtained judgment for the Fraziers in the amount of $100,000 in the Frazier v. Ort litigation.
Meanwhile, on June 8, 2006, one year and one day after they filed the substitution of attorney forms, the Fraziers filed the present malpractice action against Greenwell.
Greenwell moved for summary judgment on the ground that the Fraziers’ action was barred by the statute of limitations set forth in section 340.6, subdivision (a), which states 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.... [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: [¶] (1) The plaintiff has not sustained actual injury. [¶] (2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred[.]”
The Fraziers opposed the motion, asserting triable issues of fact remained concerning (1) whether they had discovered Greenwell’s malpractice as of June 7, 2005, (2) whether they had sustained any actual injury as the result of Greenwell’s malpractice as of June 7, 2005, and (3) whether Greenwell continued to represent them after June 7, 2005, when he assisted their new attorney with their case.
The trial court ruled the undisputed facts showed the Fraziers had discovered, or through the use of reasonable diligence should have discovered, the facts concerning Greenwell’s wrongful acts or omissions before the substitution of attorneys form was filed. Rejecting the Fraziers’ contention that the statute of limitations was tolled because they had not suffered actual injury, the court found that they suffered actual injury when the tentative decision was issued and when they began to incur fees and costs to overturn the decision. Greenwell assisted new counsel in understanding the issues in the case and the file materials, but this was not the equivalent of continuing to provide legal services to the Fraziers. Thus, the statute was not tolled because Greenwell did not continue to represent them.
Accordingly, the court entered summary judgment for Greenwell on the ground that the action was barred by the one-year statute of limitations.
LEGAL FRAMEWORK
We review de novo the trial court’s decision to grant summary judgment. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1001.) Summary judgment is appropriate “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (§ 437c, subd. (c).) To prevail on the motion, a defendant must demonstrate the plaintiff’s cause of action has no merit, i.e., that either one or more elements of the cause of action cannot be established, or that a complete defense exists. (§ 437c, subds. (o), (p); Bardin v. Lockheed Aeronautical Systems Co. (1999) 70 Cal.App.4th 494, 499-500.) If the defendant meets this requirement, the burden shifts to the plaintiff to demonstrate a triable issue of material fact exists. (§ 437c, subd. (p)(2); Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 72.)
Here, Greenwell presented evidence supporting an affirmative defense that the Fraziers’ action was time-barred by the one-year statute of limitations in section 340.6.
Absent tolling, a legal malpractice action accrues, and the one-year limitations period commences running, when the plaintiff discovers or through the use of reasonable diligence should have discovered the facts constituting the wrongful act. (§ 340.6, subd. (a)(1), (2).) Even if the plaintiff has discovered the facts constituting the defendant’s negligent conduct, the statute provides for tolling under limited circumstances. For example, the statute is tolled if the plaintiff has not sustained actual injury. (§ 340.6, subd. (a)(1); Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 751-752.) In addition, if the attorney continues to represent the client regarding the specific subject matter in which the alleged wrongful act or omission occurred, the statute will not begin to run until the attorney ceases representing the client in connection with that subject matter. (§ 340.6, subd. (a)(2); Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1535-1536.)
“Resolution of a statute of limitations defense normally is a factual question for the trier of fact. [Citation.] Summary judgment is proper, however, if the court can draw only one legitimate inference from uncontradicted evidence regarding the limitations question.” (City of San Diego v. U.S. Gypsum Co. (1994) 30 Cal.App.4th 575, 582; Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison, supra, 18 Cal.4th at p. 751 [although determining when actual injury occurred is predominantly a factual inquiry, the trial court can resolve the question as a matter of law if the material facts are undisputed]; Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112 [unless the evidence can support only one reasonable conclusion, the question when a plaintiff discovered or reasonably should have discovered the facts for purposes of the delayed discovery rule is a question of fact].)
DISCUSSION
I
According to the Fraziers, there is a triable issue of fact whether they had discovered Greenwell’s negligence one year before they filed their action for malpractice. They claim they did not discover that his representation fell below the standard of care until Siebert reviewed their file in the Frazier v. Ort litigation and advised them they might wish to pursue a malpractice action against Greenwell. Although they were aware that an unfavorable tentative decision had been reached in the cross-complaint against them, Greenwell said nothing to them to indicate that the decision was the result of any act or omission by him.
It is of no moment that the Fraziers may not have realized that Greenwell’s conduct could be characterized as malpractice. The one-year period is triggered when the client discovers, or should have discovered, the facts constituting the wrongful act or omission and “not by his discovery that such facts constitute professional negligence, i.e., by discovery that a particular legal theory is applicable based on the known facts. ‘It is irrelevant that the plaintiff is ignorant of his legal remedy or the legal theories underlying his cause of action. Thus, if one has suffered appreciable harm and knows or suspects that professional blundering is its cause, the fact that an attorney has not yet advised him does not postpone commencement of the limitations period.’ [Citations.]” (Worton v. Worton (1991) 234 Cal.App.3d 1638, 1650.)
The Fraziers’ deposition testimony discloses that, before they replaced Greenwell with Siebert, they were aware of facts indicating that Greenwell’s professional blundering led to the adverse tentative decision against them. Don Frazier testified “it was obvious from the way the proceedings played out” that Greenwell was not prepared for trial. Charlotte Frazier testified she began to have concerns regarding Greenwell’s preparation on the second day of trial, as he was asking her to get witnesses for him. The Fraziers knew an unfavorable tentative decision was reached in the Frazier v. Ort action as of November or December 2004, and Greenwell suggested they seek “legal advice from a skilled attorney” in order to protect their assets.
The Fraziers consulted Attorney Wight in Idaho, and decided to get a new attorney to represent them in the Frazier v. Ort litigation after Wight advised them to do so. After meeting with Wight, the Fraziers understood that Greenwell had provided inadequate legal services. When Charlotte Frazier was asked whether she replaced Greenwell after the meeting with Wight because she did not think Greenwell was adequately representing them, she replied she and her husband were not in a position to judge adequate legal representation; rather, “[w]e were told by a legal professional that the job done was not good.” Don Frazier unequivocally testified that, prior to signing the substitution of attorney form, which was filed on June 7, 2005, he reached the conclusion that Greenwell provided inadequate legal services.
This amply demonstrates the Fraziers were aware of facts indicating Greenwell had bungled the Frazier v. Ort litigation more than one year before they filed their malpractice action against him.
The Fraziers attempted to create a triable issue of material fact with Charlotte Frazier’s declaration that Attorney Wight did not identify any wrongful conduct by Greenwell and that she “became aware of the nature of Mr. Greenwell’s potential wrongful acts and omissions through [her] subsequent attorney Kevin Seibert, after his thorough review of the Frazier v. Ort file materials, ” which led Siebert to advise her “to seek counsel to investigate any potential malpractice claims” she might have. According to the Fraziers, because Seibert did not review the file until “on or about June 23, 2005, ” the complaint filed on June 8, 2006, was timely.
As a general rule, however, a party cannot create an issue of fact by submitting a declaration that contradicts evidence obtained in the course of discovery, such as the party’s deposition testimony and the party’s answers to interrogatories. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22; see also Barton v. Elexsys Internat., Inc. (1998) 62 Cal.App.4th 1182, 1191 [“To the extent these descriptions directly contradict his discovery responses, they must be disregarded”]; Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1613 [“Admissions or concessions made during the course of discovery govern and control over contrary declarations lodged at a hearing on a motion for summary judgment”]; Thompson v. Williams (1989) 211 Cal.App.3d 566, 573 [“[A] party cannot rely on contradictions in his own testimony to create a triable issue of fact”].)
Accordingly, Charlotte Frazier’s declaration that she did not learn of Greenwell’s wrongful acts or omissions until after she hired Siebert cannot be used to contradict the Fraziers’ specific deposition testimony that they were aware that they had received inadequate legal representation in the Frazier v. Ort litigation before they replaced Greenwell with Siebert.
The evidence compels the conclusion that the Fraziers were aware of facts indicating that they did not receive adequate representation in the Frazier v. Ort litigation, knew that the trial resulted in an adverse decision against them on the issue of liability, and were on inquiry notice to investigate the matter further prior to the time they hired Siebert (which was one year and a day before they filed their malpractice action against Greenwell).
Consequently, their malpractice action is time-barred unless the statute of limitations is tolled pursuant to section 340.6, subdivision (a)(1) or (2).
For reasons that follow, the Fraziers have not demonstrated there is a triable issue of fact concerning whether the one-year statute is tolled.
II
The Fraziers contend the statute of limitations was tolled because they had not yet sustained an actual injury as of one year before they filed their action. (§ 340.6, subd. (a)(1).)
The test for actual injury under section 340.6 turns on the issue “whether the plaintiff has sustained any damages compensable in an action, other than one for actual fraud, against an attorney for a wrongful act or omission arising in the performance of professional services.” (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison, supra, 18 Cal.4th at p. 751 (hereafter Jordache).) “Actual injury refers only to the legally cognizable damage necessary to assert the cause of action. There is no requirement that an adjudication or settlement must first confirm a causal nexus between the attorney’s error and the asserted injury.” (Id. at p. 752.)
In determining actual injury, “[t]he inquiry necessarily is more qualitative than quantitative because the fact of damage, rather than the amount, is the critical factor.” (Jordache, supra, 18 Cal.4th at p. 752.) The injury may consist of the total loss or extinction of a right or remedy, but impairment or diminution of the right or remedy will suffice as well. (Id. at p. 750.) A plaintiff need not suffer a complete loss of a right or reach final adjudication of an issue to sustain actual injury under section 340.6. (Id. at pp. 750, 753; Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26, 42.)
Jordache contrasted actual injury, which causes the statute to accrue, with speculative or contingent damage, which does not: “[S]peculative and contingent injuries are those that do not yet exist, as when an attorney’s error creates only a potential for harm in the future. [Citation.] An existing injury is not contingent or speculative simply because future events may affect its permanency or the amount of monetary damages eventually incurred. [Citations.]” (Jordache, supra, 18 Cal.4th at p. 754.) It distinguished between an existing injury that might be remedied or reduced in the future, and a speculative or contingent one that might or might not arise. (Ibid.)
Here, the trial court found that the undisputed evidence demonstrated the Fraziers suffered actual injury when the tentative decision against them on the liability issues was reached in Frazier v. Ort, and again when they began to incur legal fees in seeking to overturn the court’s tentative ruling. At that point, Greenwell’s alleged negligence placed the Fraziers in a position where it became necessary to seek relief. (Safine v. Sinnott (1993) 15 Cal.App.4th 614, 617-618 [injury occurs when the attorney’s negligence places the client in a position where it is necessary to seek relief]; Sirott v. Latts (1992) 6 Cal.App.4th 923, 928 [“[a] client suffers damage when he is compelled, as a result of the attorney’s error, to incur or pay attorney fees”].)
The Fraziers argue “[t]he first flaw in this analysis is that there is no evidence that the mechanism of injury, the ‘tentative decision’ is a product of malpractice.” It appears they believe Greenwell had the burden to show that his malpractice caused the trial court to issue the tentative decision. Not so.
Greenwell did not have to make the Fraziers’ case for them and prove that his negligent representation caused the adverse tentative decision; he needed only to demonstrate that, more than one year before the Fraziers filed their complaint, they incurred injuries from the malpractice alleged in the Fraziers’ complaint. This is so because, when moving for summary judgment, the defendant may rely “on the pleadings, competent declarations, binding judicial admissions contained in the allegations of the plaintiff’s complaint, responses or failures to respond to discovery, and the testimony of witnesses at noticed depositions.” (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1375.)
The Fraziers’ complaint alleges that (1) they entered into a lease/purchase agreement for the sale of Hillcrest Manor to Ort and Darling, (2) the buyers defaulted, (3) the Fraziers retained Greenwell to represent them as a result of the default, (4) he agreed to represent their interests in a skillful manner in accordance with the legal standard of care, (5) he filed suit on their behalf, (6) the buyers filed a cross-complaint for damages based on various theories, including breach of contract, misrepresentation, and concealment, (7) Greenwell negligently misrepresented them in the litigation, and (8) as a result, they suffered damages, including incurring attorney fees.
In January 2007, in response to Greenwell’s interrogatories concerning the exact nature of his negligence and how he injured them, the Fraziers declined to provide many specifics, asserting that discovery was just commencing so Greenwell’s “contention interrogatories are premature.” However, they indicated that Greenwell had admitted he did not represent them properly because he was preoccupied with a large housing development project on which he was working, and after Ort was evicted by the court in August 2004 and “Hillcrest Manor foreclosed in January 2005, ” which was after the tentative decision, the Fraziers tried to return and stabilize the business but “were never able to recover because the sums due were insurmountable.” As a result, “they lost their business, earning capability and were forced to pay legal fees in order to prosecute their case against [Ort].”
The Fraziers’ depositions indicated that Greenwell failed to adequately represent them and was not prepared at trial. Soon after the adverse tentative decision was reached on the liability issues in Frazier v. Ort, the Fraziers consulted with Wight, who advised them that they needed a more competent attorney for the remainder of the litigation. Thus, they replaced Greenwell with Siebert.
The logical inference from the Fraziers’ complaint and discovery responses is that Greenwell’s inadequate representation led to the unfavorable tentative deposition, which injured them because it foreclosed recovery on their causes of action against Ort, and led to unnecessary attorney fees in seeking to avoid the consequences of the court’s determination that they were liable to Ort on certain causes of action in the cross-complaint. If the Fraziers’ malpractice action was based on some other act or omission by Greenwell, it was incumbent on them to demonstrate their pleading was broad enough to encompass the other theory and they presented evidence supporting it. In other words, the burden shifted to them to show that they were not complaining that Greenwell’s malpractice caused the tentative decision and the resulting attorney fees that were incurred to untangle the problems created thereby. They did not do so and no triable issue of fact exists on this point. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 894 [if the defendant meets its prima facie case, the burden shifts to the plaintiff to show the existence of a triable issue of material fact].)
Next, the Fraziers contend the “second flaw” in the trial court’s reasoning is that the tentative decision at the liability phase of trial never became an enforceable ruling, so the only conceivable damage was “the incursion of attorneys’ fees.” They assert Greenwell’s fees are insufficient to show the requisite appreciable harm, as opposed to nominal harm. They further contend that the fees were incurred in the continued defense of the cross-complaint, not in an effort to set aside the tentative decision. According to the Fraziers, Greenwell admitted the case would have continued on and fees been incurred regardless of the tentative decision. Thus, they argue, the fees they paid to him do not reflect an “actual injury.”
The Fraziers overlook that “the determination of actual injury does not necessarily require some form of adjudication, judgment, or settlement.” (Jordache, supra, 18 Cal.4th at p. 755.) The fact Siebert was able to remedy the effect of the tentative decision does not negate that the Fraziers were injured by the decision. (Id. at p. 754.) The trial of the cross-complaint against them continued on only because the trial court found in its tentative decision that the Fraziers were liable to Ort on the certain causes of action in the cross-complaint, which necessitated a trial of the bifurcated damages phase. Thus, it was the tentative decision that (1) caused a continuation of trial as to the amount of damages, (2) caused Greenwell to move for leave to add a cross-complaint for indemnification against the real estate professionals in the transaction and charge the Fraziers for his services, (3) caused the Fraziers to seek the advice of Wight concerning protecting their assets from the ensuing judgment, which advice presumably was not free, and (4) caused the Fraziers to retain Siebert and incur even further costs and fees. Absent the alleged inadequate representation by Greenwell, the tentative decision would not have been unfavorable to the Fraziers and they would not have incurred those fees.
In other words, as of the time they substituted Siebert in as counsel to replace Greenwell, the Fraziers had suffered actual injury because Greenwell’s alleged negligence placed them in a position where it was necessary to seek relief (Safine v. Sinnott, supra, 15 Cal.App.4th at pp. 617-618) and they were compelled to incur or pay attorney fees as the result of Greenwell’s error. (Sirott v. Latts, supra, 6 Cal.App.4th at p. 928.) It does not matter that the majority of the Fraziers’ attorney fees were incurred after they hired Siebert. The fact is they suffered an actual injury, not a speculative one, at the time Greenwell’s alleged inadequate representation caused the adverse decision and caused them to take steps to correct or minimize the injurious effect of the decision.
Accordingly, the trial court properly ruled the statute of limitations was not tolled under section 340.6, subdivision (a)(1).
III
The Fraziers contend the statute of limitations was tolled beyond June 7, 2005, when they substituted Seibert as their attorney. This is so, they argue, because Greenwell continued to represent them “regarding the specific subject matter in which the alleged wrongful act or omission occurred....” (§ 340.6, subd. (a)(2).) We disagree.
“The continuing-representation tolling provision has two purposes: to prevent the attorney from defeating a malpractice action by continuing to represent the client until the statute of limitations has run; and to avoid forcing the client to file a lawsuit that would disrupt the ongoing attorney-client relationship and thereby prevent the negligent attorney from attempting to correct or minimize the error.” (Crouse v. Brobeck, Phleger & Harrison, supra, 67 Cal.App.4th at p. 1535; see also Laird v. Blacker (1992) 2 Cal.4th 606, 618.) “Continuity of representation ultimately depends, not on the client’s subjective beliefs, but rather on evidence of an ongoing mutual relationship and of activities in furtherance of the relationship.” (Worthington v. Rusconi (1994) 29 Cal.App.4th 1488, 1498, italics in original.) The general rule is that an attorney’s representation of a client ends when the client discharges the attorney or consents to a withdrawal, the court consents to the attorney’s withdrawal, or upon completion of the tasks for which the client retained the attorney. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 887-888.)
Here, the Fraziers definitively advised Greenwell they were replacing him with another attorney and filed a substitution of attorney form on June 7, 2005. At that point, Greenwell ceased to represent them. (Hensley v. Caietti (1993) 13 Cal.App.4th 1165, 1172-1173; Vapnek et al., Cal. Practice Guide: Professional Responsibility (The Rutter Group 2009) § 6:388.5, pp. 6-86 to 6-86.1.)
The Fraziers disagree, asserting that, even though they discharged Greenwell and hired Siebert to replace him, Greenwell continued to represent them by assisting Siebert in the Frazier v. Ort litigation. They point out that Charlotte Frazier declared that, when Greenwell signed the substitution of attorney form on or about May 31, 2005, “he agreed to work with Mr. Seibert until he was able to properly get up to speed on the case, and obtain the necessary file materials.” In addition, Seibert declared that he had several conversations with Greenwell regarding the Frazier v. Ort matter between June 2005 and September 2005, which “contributed to [Seibert’s] education of the Frazier v. Ort matter, and [his] overall representation of the Fraziers.” Siebert stated Greenwell signed a declaration in support of Seibert’s motion to obtain relief from the proposed judgment or reopen the first phase of trial, and met with Seibert to prepare for Greenwell’s deposition. According to Seibert, Greenwell’s post-substitution involvement “on behalf of the Fraziers, contributed to [his] representation and protection of the Fraziers’ interests by educating me about the case, ” and “assisted [him] in formulating the facts and arguments to address the tentative ruling, ” the cross-complaint, and the remaining damage issues.
The Fraziers believe this shows that Greenwell continued to represent them because he cooperated with Siebert, who was their agent. They rely primarily on Nielsen v. Beck (2007) 157 Cal.App.4th 1041 (hereafter Nielsen) to support their position. Their reliance on Nielsen is misplaced.
In the trial court, the Fraziers also argued that Greenwell’s continued representation of them in a workers’ compensation case, Wood v. Hillcrest Enhanced Living, was sufficient to demonstrate that Greenwell continued to represent them after the substitution of attorney form was filed. The trial court found this was not continuing representation by Greenwell regarding the specific subject matter in which the wrongful act or omission occurred within the meaning of section 340.6, subdivision (a)(2). The Fraziers do not contest that determination on appeal. Although they briefly mention the Wood case in their opening brief, they do not argue that it demonstrates that Greenwell continued to represent them, and do not contest Greenwell’s assertion in his respondent’s brief that they have abandoned the claim as a basis for appeal. Under the circumstances, the Fraziers have forfeited any such claim on appeal. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [when an appellant fails to raise a point, or fails to support a point with reasoned argument and citations to authority, it is forfeited]; Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 [same].)
In Nielsen, Robert and William Nielsen, brought a malpractice action against an attorney, Paul Beck, who had represented them in bankruptcy and unlawful detainer matters. On August 26, 2004, the Nielsens and Beck executed a substitution of attorney form, which was filed with the court on September 3, 2004. (Nielsen, supra, 157 Cal.App.4th at pp. 1044-1046.) Thereafter, Robert Nielsen contacted Beck by telephone on three different occasions in September 2004, to ask for legal advice in resolving the underlying claims for which the Nielsens had hired Beck; and Beck billed him for professional services rendered in connection with the telephone calls. (Id. at pp. 1046, 1051.) On September 2, 2005, the Nielsens filed their malpractice action against Beck. (Id. at p. 1047.)
The appellate court determined it was unnecessary to decide whether the date the parties executed the substitution of attorney form governed (in which case the action was untimely) or whether the date the form was filed governed (in which case the action was timely by one day). This was so because there were triable issues of material fact regarding whether Beck continued to represent the Nielsens after the substitution of attorneys form was executed and filed. (Nielsen, supra, 157 Cal.App.4th at pp. 1051-1052 & fn. 6.) The Nielsen court noted that “[a] reasonable trier of fact could conclude that the parties intended that Beck no longer act as litigation counsel, but he was expected to continue to provide transactional advice, as evidenced by the three September 2004 telephone calls. After all, Beck not only provided legal services, but he billed for that advice.” (Id. at p. 1052.)
Thus, Nielsen simply stands for the proposition that, where a client obtains replacement counsel but continues to call the prior attorney for advice and the prior attorney bills the client for that advice, then a triable issue of fact exists as to whether the attorney continues to represent the client, which precludes summary judgment on statute of limitations grounds. (Vapnek et al., Cal. Practice Guide: Professional Responsibility, supra, § 6:388.6, p. 6-86.1.)
Here, there is no evidence that the Fraziers had any continuing contact with Greenwell, or that he offered them advice about the case after they replaced him with Siebert. There is no evidence that Greenwell acted as co-counsel in the Frazier v. Ort litigation; Siebert declared only that Greenwell helped to educate him regarding the case and that Greenwell signed a declaration in support of Siebert’s motion to reopen the first phase of trial. Greenwell declared that he told the Fraziers he would cooperate with turning over the files to Siebert, and that he could call Greenwell if he had any questions. There is no evidence that Greenwell billed the Fraziers for his time in answering Siebert’s questions. Thus, the undisputed evidence simply shows that Greenwell transferred the Fraziers’ file to Siebert and helped to educate him about the case, and was a witness/declarant for Siebert’s new trial motion.
Under the circumstances, it is irrelevant that Siebert was the Fraziers’ agent. The law of agency did not transform Greenwell’s communications with Siebert into a continuing representation of Siebert’s clients.
There is no triable issue of material fact concerning whether Greenwell continued to represent the Fraziers within the meaning of section 340.6, subdivision (a)(2). He did not, and the trial court correctly granted Greenwell’s motion for summary judgment on the ground that the Fraziers’ malpractice action was barred by the statute of limitations.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, J. SIMS, J.