Opinion
D039972.
7-29-2003
CAROL SORENSEN et al., Plaintiffs and Appellants, v. KENNETH M. SIGELMAN et al., Defendants and Respondents.
Carol Sorensen and Keith Sorensen (the Sorensens) appeal a summary judgment on their complaint for legal malpractice against Kenneth Sigelman and Kenneth M. Sigelman & Associates (collectively Sigelman). The Sorensens contend the court erred in ruling their complaint was time-barred because (1) it misconstrued the continuous representation exception to Code of Civil Procedure section 340.6, subdivision (a)(2) and (2) they raised triable issues of fact as to when Sigelman ceased to represent them. The Sorensens ask that we rule as a matter of law that an attorney of record in active, pending litigation has a continuing legal obligation to the client and thus represents that client within the meaning of section 340.6, subdivision (a)(2) until he or she is relieved of that obligation by the clients signed consent or court order. To rule otherwise, they maintain, would be to reward the attorney for violating his or her professional duties to the client and to the court.
All statutory references are to the Code of Civil Procedure unless otherwise indicated.
We conclude there is no support for the Sorensens proposed interpretation of section 340.6 in either its plain language or the legislative history. Viewing the undisputed evidence objectively, we hold Sigelman met his threshold summary judgment burden to demonstrate there is no material fact for a reasonable trier of fact to find as to his statute of limitations defense. That is, he has shown his representation of the Sorensens ended in October 1999, more than one year before they filed suit against him. Because the Sorensens have not shown a triable issue of material fact to defeat summary judgment on that issue, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We set forth the undisputed facts from the parties documents supporting their moving and opposing papers (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 327) and state other facts and draw inferences from them in the light most favorable to the Sorensens. ( § 437c, subd. (c); Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1520; Van Dyke v. S.K.I. Ltd. (1998) 67 Cal.App.4th 1310, 1313, fn. 2.) We do so despite the fact, more fully discussed below, the Sorensens set out an incomplete and inadequate factual recitation in their opening brief.
The Underlying Lawsuit
In May 1995, Carol Sorensen sustained injuries after she fell while disembarking a cruise ship owned and operated by Royal Caribbean Cruises, Ltd. (Royal). In March 1996, the Sorensens retained Sigelman to represent them in an action against Royal and also against the medical providers who later treated Carol Sorensen for her injuries. In May 1996, Sigelman filed such an action.
In December 1996, the superior court dismissed Royal from the Sorensens law suit because the Sorensens passenger tickets contained a forum selection clause requiring actions against Royal to be filed in Florida. Sigelman did not thereafter refile suit against Royal. At some unspecified point, the Sorensens agreed to submit their claims against the medical malpractice defendants to binding arbitration.
On December 17, 1998, the Sorensens, having heard little about their case and after demanding a face-to-face meeting with Sigelman, discussed the status of the matter with him. At the meeting, Sigelman told them for the first time the action against Royal was "dead." According to Keith Sorensen, he and his wife "threw up [their] hands and said okay." Sigelman also told the Sorensens that his prospective orthopedic surgery expert, Carol Sorensens former treating physician, believed the medical malpractice case was weak. Sigelman told them he felt it best he withdraw from the case. He did not, however, tell them he would do no further work on the case. Indeed, Sigelman agreed to obtain additional x-rays and meet again with the expert to review those materials. In a letter following the meeting, Carol Sorensen recapped their discussions, and confirmed her understanding of additional matters he agreed to handle. In part, she wrote: "It was decided by the three of us that: . . . [P] . . . [P] . . . c. You will informally request that all immediate pre-op and post- hardward [sic] removal x-rays be produced from Wilks [sic] office. [P] d. You will contact Dr. Wagner to ask him to review the x-rays personally with you at his office and obtain my post 1/18 records and x-rays which he has already seen (if he wants them)."
There appears to be no dispute that it was at this point the Sorensens became aware of Sigelmans alleged negligence and suffered actual injury, triggering the limitations period of section 340.6. (Fantazia v. County of Stanislaus (1996) 41 Cal.App.4th 1444, 1450.)
The fact Sigelman told the Sorensens he felt it best he withdraw from the case is undisputed by the parties and supported by Keith Sorensens deposition testimony. Carol Sorensen, on the other hand, avers in a declaration in opposition to summary judgment that Sigelman never told them during the October 1998 meeting that "he did not want to continue to represent them or that he was doing no further work on the case" and that he did not give them a substitution of attorney form to sign at that time. We disregard facts contained in summary judgment declarations that contradict earlier deposition testimony. (See DAmico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-22, 112 Cal. Rptr. 786, 520 P.2d 10; Gosvener v. Coastal Corp. (1996) 51 Cal.App.4th 805, 813, disapproved on other grounds in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1030, fn. 6.) However, Sigelmans comment that he felt it best to withdraw does not strictly contradict Carol Sorensens statement that he did not tell them he would do no further work on the case. Thus, we take those facts as true.
Despite Sigelmans continued efforts, shortly after the December 1998 meeting, Carol Sorensen began inquiring with other attorneys about taking over her medical malpractice case. She provided documents to attorney Bruce Englebrecht and had telephone conversations with him in December 1998 and January 1999. In March 1999, she followed up with another attorney that Englebrecht had contacted on her behalf about her case. She spoke with a third attorney referred by Englebrecht. Englebrecht made other contacts on her behalf.
On April 20, 1999, Carol Sorensen wrote to Sigelman complaining about the inadequate factual information they had been given. She requested a complete set of her medical records as well as all depositions taken in the case, writing in part: "We have given this case a great deal of thought since we met last December. While we can understand your view regarding the relative merit of the remaining case without [Royal], we find ourselves very dissatisfied with the minimal factual information we have been given. As plaintiffs and as a patient of the defendants, we are legally entitled to a complete record of the case before we make our own decision."
In May 1999, the Sorensens authorized Sigelman to obtain the additional x-rays by subpoena, and also requested that he forward certain deposition transcripts. Sigelman or his office staff responded to the Sorensens requests. Around this time Carol Sorensen had several conversations with Sigelman and his secretary to advise him she and her husband had moved to San Diego, and to ask for return of x-rays, pictures and other records in connection with her medical malpractice case. They did not discuss the status of her case in any of those conversations.
In or about August 1999, Carol Sorensen consulted with an attorney regarding a possible legal malpractice case against Sigelman. That attorney declined representation due to a conflict.
In September or October 1999, Carol Sorensen spoke again with Sigelman. During that conversation, Sigelman told her that because of certain circumstances of the case against Royal, as well as the fact she had consulted with other attorneys with the intent to pursue a legal malpractice claim, his continued representation of the Sorensens was problematic and that he was not the best attorney to represent them. He strongly advised them to find another attorney. Carol Sorensen told Sigelman she wanted him to stay on the case. He agreed to waive his fees if they retained new counsel to take over the case and offered to speak to the new attorney to facilitate the process.
Following Carols telephone call, Keith Sorensen spoke with Sigelman and urged him to continue with the case. As Keith Sorenson recalled the gist of the conversation, Sigelman "basically was very curt and said he wasnt going to do a thing, and that he was going to send us a letter to - for substitution." Keith Sorensen responded they would not sign such a letter. Keith Sorensen felt Sigelman was unresponsive and the call unproductive because they "basically requested [Sigelman] to continue forth on the case, and he said no."
After October 1999, Carol Sorensen never spoke with Sigelman again. Keith Sorensen also had no further communications with Sigelman or his office staff.
On March 1, 2000, Sigelman served the Sorensens with a motion to withdraw from the action as their counsel and filed it the next day. In his declaration supporting the motion, he stated: "Irreconcilable differences have arisen between Plaintiffs and I, such that it would not be in anyones best interest for me to continue to represent them. However, Plaintiffs have advised me that they will not execute a substitution of attorney." Thereafter, on March 10, 2000, Carol Sorensen wrote Sigelman, advising him that while she disagreed with his view of the facts, she agreed it was not in either of their interests to have him continue to represent them. Although the Sorensens did not want Sigelman to withdraw from their case, they did not file opposition to the motion; Keith Sorensen testified at his deposition it would be futile to force Sigelman to continue as their counsel when he did not want to do so.
She wrote: "I have reviewed the documents you sent last week. While, as you know, I disagree strongly with your view of the facts and scope of the case, I agree with your statement that it is not in the best interest of either of us for you to continue to represent me. My difficulty in releasing you has been because of fear of my personal exposure to legal ramifications in accepting uncovered pro per representation without another attorney in place, just as Judge Brickner points out in his letter. I cannot afford to hire another attorney nor to carry the case in pro per as it stands now. [P] As we both know, since it is the reason I was happy to have you represent me, you have an excellent reputation. Others have been unwilling to assume responsibility for his case in the wake of your desire to withdraw. [P] I believe there is more merit to the case than you have discovered and I would still like to find an attorney to carry it through the arbitration process. So we have a dilemma here. I would need your assurances of financial release, non-interference with the legal arbitration and some resolution as to personal legal repercussions in order to grant your request to the court. If you have solutions to the above dilemma, please feel free to call me."
The superior court granted Sigelmans unopposed motion to withdraw by minute order dated March 31, 2000. The courts ruling became final on April 6, 2000 and was formally set out in an order filed on May 16, 2000.
The Present Legal Malpractice Action
On March 5, 2001, the Sorensens filed a complaint for legal malpractice against Sigelman, alleging he negligently failed to timely file the action against Royal in the proper forum, resulting in the loss of their claims against it. Sigelman moved for summary judgment on the ground the Sorensens causes of action were barred by the one-year statute of limitations of section 340.6. In opposition, the Sorensens argued the limitations period had been tolled until May 16, 2000, when the court filed its order granting Sigelmans withdrawal motion. They maintained Sigelman was not relieved as counsel of record — and thus as a matter of law continued to represent them for purposes of tolling under section 340.6, subdivision (a) — until that time.
The superior court granted the motion. In part, it observed there was no evidence to indicate Sigelman had actually assisted the Sorensens with any matters tangential to the Royal case or even the medical malpractice case after the summer of 1999, and noted the Sorensens had earlier consulted with other counsel concerning a possible legal malpractice claim against Sigelman. It concluded as a matter of law Sigelman established his representation of the Sorensens ceased more than one year before the legal malpractice action was filed; that Sigelman met his burden of establishing a complete defense to the action and the Sorensens did not create a triable issue of material fact to defeat the motion. The court entered judgment in Sigelmans favor. This appeal followed.
DISCUSSION
I. Waiver
We begin with Sigelmans contention that the Sorensens waived their claims on appeal because they did not fairly set out the evidence and the material facts relied upon by the trial court with appropriate record citations, and recited only the evidence favorable to their case. He maintains their block citations render it impossible for this court to evaluate what facts or factual disputes the Sorensens rely upon and what evidence may support a proposed factual dispute for purposes of opposing summary judgment. We agree the Sorensens brief is seriously deficient in its recitation of the pertinent facts and record citations. In particular, they do not provide exact citations to the evidence demonstrating a disputed material issue of fact on the question of tolling; they do not acknowledge or discuss Sigelmans supporting evidence other than to provide block citations to his reply separate statement; and they largely cite to their own separate statement of material facts. This inadequacy, combined with the fact the Sorensens did not make this argument to the trial court below, compels us to conclude they have waived any argument that the trial court erred in concluding they did not raise a material factual dispute for trial. (E.g., Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116, citing 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 589, p. 624 [it is the duty of counsel to refer the reviewing court to the portion of the record which supports appellants contentions on appeal]; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 [scope of review on appeal is limited to those issues adequately raised and supported in opening brief, even where review is de novo]; Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal. App. 3d 1203, 1205, 277 Cal. Rptr. 401 [summary judgment affirmed where appellants brief did not include exact page citations to the record; problem is "especially acute" when considering an appeal from a summary judgment].)
In the trial court, the Sorensens advanced only the legal theory that until Sigelman formally withdrew from the case by court authorization, he continued to represent them within the meaning of the continuous representation tolling provision of section 340.6. Their failure to make the argument to the trial court is an independent basis for us to decline consideration of the point. (See American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal. App. 3d 1271, 1281, 241 Cal. Rptr. 466.)
Nevertheless, we proceed to consider the Sorensens main argument, which is based on a theory of statutory interpretation and is a question of law on a narrow set of undisputed facts. The Sorensens urge they have set out the material facts necessary to support their argument (although we note again, those facts are not supported by exact record citations), and the facts relied upon by Sigelman and the trial court are essentially irrelevant to resolution of that question. Because we need not comb through the record in search of the supporting facts to resolve the issue, we exercise our discretion to consider it.
II. Section 340.6s Plain Language and Principles of Statutory Construction do not Support a Bright Line Test to Determine Whether Representation Has Concluded
The Sorensens urge us to interpret section 340.6, subdivision (a)(2) to reach a result that they concede is without precedent in California law. The Sorensens contend in circumstances involving an attorneys negligence occurring in active litigation, the only date on which a counsel of record can be deemed to cease representing the client for purposes of section 340.6, subdivision (a)(2) is "the date on which either (a) the client consents to withdrawal (and a substitution signed by both counsel and client is filed with the court) or (b) the attorney obtains a court order granting leave to withdraw." Their proposed interpretation of section 340.6 would result in a bright-line test in cases involving malpractice arising out of pending litigation matters. As we explain, we find no support in either the legislative history or principles of statutory construction for the Sorensens proposed interpretation, and we conclude it is contrary to existing California law on the point.
Section 340.6, subdivision (a) provides: "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. 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 any of the following exist: [P] (1) The plaintiff has not sustained actual injury; [P] (2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred . . . ." The continuous representation tolling provision of section 340.6, subdivision (a)(2) 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 (1998) 67 Cal.App.4th 1509, 1535, citing Laird v. Blacker (1992) 2 Cal.4th 606, 618, 828 P.2d 691.)
"In interpreting a statute where the language is clear, courts must follow its plain meaning. [Citation.] However, if the statutory language permits more than one reasonable interpretation, courts may consider various extrinsic aids, including the purpose of the statute, the evils to be remedied, the legislative history, public policy, and the statutory scheme encompassing the statute. [Citation.] In the end, we "must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences."" (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1003; see also Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1165-1166, 278 Cal. Rptr. 614, 805 P.2d 873.)
In support of their theory of interpretation the Sorensens argue: (1) section 340.6 must be narrowly construed because it is a disfavored limitations statute, but its express exceptions should be expansively construed; (2) the Legislatures specific enumeration of allowable tolling exceptions, and the fact the continuous representation tolling exception has no time limitation, signals the Legislatures favorable view of those exceptions; (3) the Legislature limited continuous representation for purposes of tolling to the specific subject matter in which the wrongful act or omission occurred, thus serving the interests of both attorneys and plaintiffs; and (4) there is no indication the tolling provision should not apply to both transactional representation as well as representation in pending litigation. We will not give a broad or expansive reading of section 340.6s tolling provisions based on the theory limitations defenses are either favored or disfavored. To the contrary, the California Supreme Court has made it clear there is no policy predisposition on either side. (Vu v. Prudential Property and Casualty Ins. Co. (2001) 26 Cal.4th 1142, 1148-1149 [affirmative defense based on statute of limitations should not be characterized as either favored or disfavored; the public policies for repose and for disposition on the merits are equally strong, the one being no less important or substantial than the other].) And the Sorensens remaining points are not helpful because they do not compel any particular interpretation of the term "represent" within section 340.6, subdivision (a)(2).
The Sorensens further argue there is nothing in section 340.6 or its history to suggest the Legislature intended to supplant or overrule existing mandatory court rules and California law governing attorneys who appear in California courts as counsel of record. They contend we must construe section 340.6 in harmony with Rules of Professional Conduct, rule 3-700, Code of Civil Procedure sections 284 and 285 and California Rules of Court, rule 376 , specifying procedures for withdrawal as counsel of record, so that representation within the meaning of Code of Civil Procedure section 340.6, subdivision (a)(2) does not conclude until the client consents or the court so orders. According to the Sorensens, any other interpretation will reward violations of laws and a trial lawyers ethical duties.
Rule 3-700, subdivision (A) of the Rules of Professional Conduct, provides: "(A) In General. [P] (1) If permission for termination of employment is required by the rules of a tribunal, a member shall not withdraw from employment in a proceeding before that tribunal without its permission. [P] (2) A member shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, complying with rule 3-700(D), and complying with applicable laws and rules."
Code of Civil Procedure section 284 provides: "The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, as follows: [P] 1. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes; [P] 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other." Section 285 provides: "When an attorney is changed, as provided in [section 284], written notice of the change and of the substitution of a new attorney, or of the appearance of the party in person, must be given to the adverse party. Until then he must recognize the former attorney."
The Sorensens cite to subdivisions (a) and (d) of California Rules of Court, rule 376. Before amendments effective July 1, 2000, subdivision (a) of that rule provided: " [Format] A notice of motion to be relieved as counsel under Code of Civil Procedure section 284(2) shall be directed to the client and shall be worded in clear, simple and nontechnical terms." Subdivision (d) of that rule provided in part: "[Order] The order relieving counsel shall be served as specified in subdivision (c) for service of the notice. The order shall . . . inform the client that failure to take appropriate action may result in serious legal consequences and the client might want to seek legal assistance."
We disagree with this reasoning. Although the Sorensens discuss section 340.6s legislative history and the purposes of the tolling provision of subdivision (a)(2), they do not adequately explain how this history and the cited cannons of statutory construction show the Legislature intended that the end of representation should equate with an attorneys formal withdrawal as counsel of record in pending litigation. The Legislatures silence on the relationship between representation for purposes of tolling and the rules governing an attorneys withdrawal from employment does not persuade us it intended the two be equivalent. And even if we assume for purposes of applying cannons of statutory construction that section 340.6 addresses the same subject matter as the statutes governing formal withdrawal (Dyna- Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387, 241 Cal. Rptr. 67, 743 P.2d 1323 [statutes or statutory sections relating to the same subject must be harmonized both internally and with each other to the extent possible]), we agree with Sigelman the principles of construction operate against the Sorensens proposed interpretation. We are to consider the specific language used by the Legislature, and it did not use the terms "withdraw from employment," "substitute" or "relieved as counsel," although we presume it was aware of Code of Civil Procedure section 284 and rule 3-700 of the Rules of Professional Conduct when it enacted Code of Civil Procedure section 340.6, subdivision (a) in 1977. "`The courts assume that the Legislature, when enacting a statute, was aware of existing related laws and intended to maintain a consistent body of rules. " (People v. Wood (1998) 62 Cal.App.4th 1262, 1270.) Had the Legislature intended that a filed substitution of counsel or court order constitute the end of an attorneys representation in litigation matters under section 340.6, it would have so provided. (See Shapero v. Fliegel (1987) 191 Cal. App. 3d 842, 847, 236 Cal. Rptr. 696 (Shapero) ["If the Legislature had intended the running of the statute of limitations in section 340.6 to be tolled by the failure of an attorney to file a withdrawal . . . it could have said so. We do not believe that the Legislature intended the presence or absence of a formal withdrawal to be dispositive of the continued representation issue"].)
Stats.1977, ch. 863, § 1, p. 2609. Section 284 was last amended in 1967 (Stats. 1967, ch. 161, p. 124, § 1); rule 3-700 of the Rules of Professional Conduct is derived from former rule 2-111, approved effective January 1, 1975. (23 Wests Ann. Rules Prof. Conduct (1996 ed.) foll. rule 3-700, p. 409.)
We cannot agree with the proposition that an attorney-client relationship should be deemed to exist for purposes of tolling under section 340.6 absent the filing of a substitution of attorney form or court order granting an attorneys withdrawal. It is settled that a client has an absolute right to terminate his or her attorneys services at any time with or without cause. (Fracasse v. Brent (1972) 6 Cal.3d 784, 790, 100 Cal. Rptr. 385, 494 P.2d 9; see also General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1173-1175, 876 P.2d 487.) Thus, the client may terminate his or her attorneys authority — and the relationship may irretrievably break down — well before the filing of any formal withdrawal. In such a case the end of representation should not be solely within the clients control, as in the event the dissatisfied client refuses to execute or file a substitution so to delay the running of the statute. And while Sigelman could not unilaterally terminate his attorney-client relationship simply by failing to perform services expressly or impliedly authorized by the Sorensens, that relationship does not continue indefinitely simply because there has been no formal termination.
Nor can we agree with the Sorensens assertion that eschewing a bright line rule will somehow condone or encourage an attorneys breach of his or her ethical duties or violation of laws. They argue: "Withdrawing from a pending action without the consent of the client or approval of the court, and without taking reasonable steps to avoid causing foreseeable prejudice to clients violates disciplinary rules." While this is a true statement, it does not explain how the rule they propose furthers the purposes behind the tolling provision. Indeed, the policy underlying the continuous representation rule - permitting attempts to repair the attorney-client relationship or allow the attorney to correct or minimize an apparent error (Laird v. Blacker , supra, 2 Cal.4th at p. 618) — compels against such a rule. Under a bright line rule ending representation upon the filing of a court order granting withdrawal, for example, a negligent attorney may sooner take formal steps to withdraw from an action at a time that is against the clients interests, solely to trigger commencement of the limitations period. On the other hand, a negligent attorney may take remedial steps to correct his or her errors in connection with the same subject matter even after formally withdrawing as counsel of record, and activities in furtherance of an attorney-client relationship might continue beyond that formal step. We do not purport to decide whether the statute is tolled in these instances, we simply point out the question, as commentators observe, should be a fact-based inquiry in each case. (See 3 Mallen & Smith, Legal Malpractice (5th ed. 2000) § 22.13, p. 443 [there is no bright-line rule for determining when representation ends, because the particular circumstances need to be evaluated].) Given its rationale, we believe the inquiry of whether the continuous representation rule is triggered must take into account whether the attorneys conduct - notwithstanding formal withdrawal - is intended to be remedial and thus consistent with its underlying goals. (See e.g., 3 Mallen & Smith, Legal Malpractice, supra, § 22.13, p. 449.)
They also assert Sigelman here took none of the mandatory steps to withdraw. Even assuming the latter point is factually supported, which it is not, it is irrelevant for purposes of our analysis. The Sorensens did not argue to the trial court below that Sigelman is somehow estopped from applying the one-year limitations period due to his failure to give notice or by acts lulling them into believing he continued to represent them. (E.g., Johnson v. Haberman & Kassoy (1988) 201 Cal. App. 3d 1468, 1474-1475, 247 Cal. Rptr. 614.)
Our rejection of the Sorensens proposed rule is consistent with California decisions addressing continuous representation tolling, which make clear it is not possible to determine the end of representation by any bright-line test. Several courts have expressly held withdrawal as attorney of record is not, standing alone, dispositive on the continuous representation issue. (Shapero, supra, 191 Cal. App. 3d at p. 847 [tolling should not automatically be defeated by the formal withdrawal of an attorney as the clients counsel of record]); Baltins v. James (1995) 36 Cal.App.4th 1193, 1199, fn. 5 ["simply remaining as a counsel of record does not constitute continued representation that tolls the limitations period of section 340.6"] disapproved on other grounds in Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 761, fn. 9, 958 P.2d 1062; Worthington v. Rusconi (1994) 29 Cal.App.4th 1488, 1497 [" Ordinarily, an attorneys representation is not completed until the agreed tasks or events have occurred, the client consents to termination or a court grants an application by counsel for withdrawal. [Citation.] The rule is that, for purposes of the statute of limitations, the attorneys representation is concluded when the parties so agree, and that result does not depend upon formal termination, such as withdrawing as counsel of record "].) In Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 228, the court said continuous representation tolling "is not triggered by the mere existence of an attorney-client relationship." Other cases implicitly support this conclusion. (See Hensley v. Caietti (1993) 13 Cal.App.4th 1165, 1170, 1172-1173, & fn. 3 [rejecting plaintiffs contention her attorneys representation continued until he received a letter from her new attorney and the substitution of attorney form; "the period of tolling should not turn upon the fortuity of the time of delivery of notice of discharge to counsel, a matter entirely within [the clients] control"].)
We decline the Sorensens invitation to disregard or distinguish these authorities, particularly Shapero, supra, 191 Cal. App. 3d 842, on the ground it involved a marital dissolution and thus a different withdrawal statute, section 285.1. The Sorensens argue the cases "cannot be extrapolated to this case" without explaining why that is so. We perceive no meaningful distinction that would prevent us from relying on Shaperos rationale. We also disagree with the Sorensens argument that Gurkewitz v. Haberman (1982) 137 Cal. App. 3d 328, 187 Cal. Rptr. 14 contains language supporting their proposed bright-line test for situations involving active litigation. Gurkewitz involved an underlying action against a title insurance company that was dismissed for failure to prosecute. (Id. at p. 331.) The plaintiffs learned of the dismissal from their lawyers in October 1977, and after an unsuccessful appeal, were advised of the adverse decision in November 1978. At that time, the plaintiffs lawyers advised them against seeking rehearing or further appeal and told them: "Since this matter is now completed we are closing our files." (Ibid.) Thereafter, however, the attorneys negotiated a reduction in the amount of costs awarded on appeal and informed the plaintiffs of the reduction in March 1979. (Id. at p. 332.) The plaintiffs sued the lawyers for malpractice in November 1979. ( Ibid.)
The Gurkewitz court phrased the relevant tolling inquiry as follows: "We must decide when an attorney ceases to represent a client, absent a withdrawal or change of attorneys." (Id . at p. 333.) This language does not suggest legal representation must be deemed to continue in the absence of a formal withdrawal. It may suggest representation cannot be deemed to continue beyond formal withdrawal, but it in no way suggests the end of representation cannot occur before a formal substitution or order is filed. In fact, the court of appeal there held that "so long as there are unsettled matters tangential to a case, and the attorney assists the client with these matter, he is acting as his representative." Accordingly, we do not find support for a bright line test in the Gurkewitz courts dictum.
We also decline to consider non-California authority on the question, when case authority from this state sets out the relevant inquiry. This court has held the test for whether the attorney has continued to represent a client on the same specific subject matter is an objective one. (Crouse v. Brobeck, Phleger & Harrison, supra, 67 Cal.App.4th at p. 1528.) Although there is some disagreement on the question, other courts are in accord. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 887 (Lockley); Worthington v. Rusconi, supra, 29 Cal.App.4th at p. 1497 [the language of section 340.6, subdivision (a)(2) "requires an objective determination of whether the representation has ended"]; but see Hensley v. Caietti, supra, 13 Cal.App.4th at p. 1172 ["the question of representation should be viewed from the perspective of the client because that tailors the rule in Code of Civil Procedure section 340.6, subdivision (a)(2) to the purpose it serves"].) Continuity of representation ultimately depends not on the clients subjective beliefs, but rather on "evidence of an ongoing mutual relationship and of activities in furtherance of the relationship." (Lockley, at p. 887; Worthington v. Rusconi, at p. 1498.) What is ultimately determinative is not whether the attorney-client relationship exists, but when the representation of the specific subject matter concluded. (3 Mallen & Smith, Legal Malpractice, supra, § 22.13, pp. 439-440.) We agree with the Sorensens that the question is not solely dependent on whether the client has lost trust and confidence or retained other counsel to consider a malpractice action. (ONeill v. Tichy (1993) 19 Cal.App.4th 114). We must decide how reasonable parties would have understood the status of representation. Applying these standards, we proceed to resolve whether the undisputed evidence reveals Sigelman was entitled to summary judgment in his favor.
III. The Court Properly Granted Summary Judgment
A. Standard of Review
"A defendant moving for summary judgment based upon an affirmative defense, as here, bears an overall burden of persuasion that there is a complete defense to the plaintiffs action, that is, he must persuade the court there is no material fact for a reasonable trier of fact to find as to that defense. (See Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 850, fn. 11 [107 Cal.Rptr.2d 841, 24 P.3d 493] (Aguilar).) In meeting its overall burden of persuasion, the defendant has the initial burden of production entailing him to present[ ] . . . "evidence" (id. at p. 850, citing Evid. Code, § 110) supporting a prima facie showing of the nonexistence of any triable issue of material fact as to the defense. (Aguilar , at p. 850.) Once the defendant has met that initial burden of production, the burden shifts to the plaintiff to present evidence showing the existence of a triable issue of one or more material facts as to that defense. (Ibid.; § 437c, subd. (o )(2).)" (Rancho Viejo LLC v. Tres Amigos Viejos LLC (2002) 100 Cal.App.4th 550, 557-558 (Rancho Viejo).) " There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof at trial." (Id. at p. 558, quoting Aguilar, at p. 850.)
On appeal, the reviewing court exercises its independent judgment in determining whether there are no triable issues of material fact and the moving party thus is entitled to judgment as a matter of law. (Guz v. Bechtel National, Inc. (2000) 25 Cal.4th 327, 334-335.) "We construe the defendants evidence strictly and plaintiffs evidence liberally, and resolve any doubts as to the propriety of granting the motion in favor of the plaintiff as the opposing party. [Citation.] We affirm the ruling if it is correct on any ground, regardless of the trial courts stated reasons." (Rancho Viejo, supra, 100 Cal.App.4th at p. 558.)
B. Sigelmans Burden
The threshold issue is whether Sigelman met his initial summary judgment burden to present evidence establishing his representation of the Sorensens within the meaning of section 340.6, subdivision (a)(2) ceased more than a year before March 5, 2001, the date the Sorensens filed their malpractice lawsuit. "The moving party is not entitled to summary judgment unless and until it meets its procedural burden of establishing one of these grounds for granting the motion, regardless of whether the opposing party responds or presents any evidence. If the moving defendant fails to meet its initial burden, the burden never shifts to the opposing party to raise a factual issue." (Weinstein v. St. Marys Medical Center (1997) 58 Cal.App.4th 1223, 1228.)
The Sorensens contend Sigelman did not meet this burden. They argue: "[Sigelman] had the initial burden of establishing that his construction of [section 340.6, subdivision (a)(2)] was legal [sic] correct, acceptable and supported by the weight of authority and/or the history, purposes and intent of the Legislature." But as we have explained, this is not a correct statement of the test for purposes of continuous representation tolling, nor is it a correct statement of Sigelmans burden on his motion. Sigelman would meet his summary judgment burden if he were to present undisputed evidence demonstrating the absence of an "ongoing mutual relationship" and "activities in furtherance of the relationship" at some point more than one year before the Sorensens filed suit against him.
Sigelman contends he met his burden on this issue by showing his representation of the Sorensens in connection with the action against Royal - the specific subject matter in which he was alleged to be negligent - ended as of December 1998, when he advised them the case against Royal was over. He maintains the cause of action against Royal is separate and distinct from the cause of action against Carol Sorensens medical providers, and thus the specific subject matter of the alleged negligence cannot be deemed to include the claim for medical negligence. Alternatively, Sigelman contends there is no dispute he ceased representing the Sorensens for all purposes after October 1999, when he told the Sorensens it was no longer in anyones interests for him to continue to represent them and they should seek other counsel. He points out there is no dispute the Sorensens had no further contact with Sigelman after that time, and he did no additional work of any kind on their behalf.
We need not decide whether the specific subject matter of Sigelmans representation for purposes of section 340.6 excluded the cause of action brought against Carol Sorensens medical providers, because we agree Sigelman met his burden to show there is no dispute that, after October 1999, he and the Sorensens did not have an ongoing mutual relationship and he did not perform activities in furtherance of the relationship. (Lockley , supra, 91 Cal.App.4th at p. 887; Worthington v. Rusconi, supra, 29 Cal.App.4th at p. 1497.) In December 1998, Sigelman had suggested to the Sorensens that because of his perception the medical malpractice case was weak, he felt it best he withdraw as their counsel. The Sorensens concede they thereafter consulted with other attorneys about their medical malpractice case, and also sought to consult with an attorney about a possible legal malpractice action against Sigelman. Although Sigelman continued to perform some tasks on the Sorensens behalf in the spring of 1999, by the time he spoke with both of them in October 1999, Sigelman obviously intended to give them notice he would be taking steps to end his representation; he strongly advised them to obtain new counsel, told Carol Sorensen he wanted her to substitute him out of the case, and told Keith Sorensen he would not do anything with respect to the case. After the call, the Sorensens had no further communications with Sigelman until after he had already served and filed his motion to withdraw as counsel in early March 2000, when on March 10, 2000, Carol Sorensen wrote she agreed it was in neither parties interests for Sigelman to continue as their counsel. There is no evidence Sigelman performed legal services or any other activities on their behalf after their conversations in October 1999. He thereafter moved to withdraw from the case without opposition.
The only legitimate inference that can be drawn from this evidence is that the parties mutual attorney-client relationship ceased by the end of October 1999. We cannot say a reasonable person in the Sorensens position as of that time could believe they had an ongoing mutual relationship with Sigelman as their attorney. Rather, it is evident both Sigelman and the Sorensens believed their relationship had deteriorated to a point where representation ceased. " While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper. " (Clark v. Baxter Healthcare Corporation (2000) 83 Cal.App.4th 1048, 1054-1055.) Sigelmans evidence was sufficient to shift the burden to the Sorensens to raise a triable issue of fact on this question.
C. The Sorensens Burden
The Sorensens argue they disputed any inference they acquiesced in Sigelmans termination at any time before May 16, 2000, the date the court filed its order granting his motion to withdraw as counsel. Without addressing the facts relied upon by Sigelman or the trial court, they point to their mere refusal to sign a substitution of attorneys form, as well as the fact Sigelman was aware he had to move for leave to withdraw as counsel of record but did not do so until March of 2000, and the fact the court did not grant the motion until May 16, 2000. Of course these facts go to the Sorensens proposed legal theory that representation must continue as a matter of law until the filing of formal withdrawal, which is in part the basis for our conclusion the Sorensens waived any argument on this point. These facts do not raise a triable issue as to whether they had an ongoing mutual relationship with Sigelman and performed activities in furtherance of that relationship after October 1999.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., NARES, J.