2016-00195625-CU-PN

Jean Cadette vs. Robert N. Kitay

Nature of Proceeding: Motion for Summary Judgment

Filed By: Kitay, Robert N.

Defendant Robert N. Kitay’s, individually and doing business as the Law Office of Robert N. Kitay (hereinafter, “Mr. Kitay”) Motion for Summary Judgment is DENIED.

Factual Background

This is a legal malpractice action. In early 2010, Plaintiffs Jean Cadette and minor Jenna Cadette (together, “Plaintiffs”) retained Mr. Kitay to represent them in a lawsuit involving a motor vehicle accident. On December 3, 2014, Mr. Kitay was temporarily suspended from practicing law, and Plaintiffs retained a new attorney – defendant Lora Grevious (“Ms. Grevious”) – who substituted into Plaintiffs’ case shortly thereafter. (UMF nos. 5, 6, 7.) On December 30, 2014, Plaintiffs moved to continue the trial date, and the motion was granted. (UMF nos. 8, 9.) On May 19, 2015, the Court issued a tentative ruling granting the defendant’s motion to dismiss in the underlying motor vehicle action for failure to bring the case to trial within five years. (UMF 14.) There was no request for oral argument, and the Court adopted its tentative ruling on May

20, 2015. (Kitay Decl. Ex. E.) The Order granting defendant’s motion to dismiss was filed on June 8, 2015. (Weinberger Decl. ¶5.) Plaintiffs filed the instant action on June 7, 2016.

Mr. Kitay argues that summary judgment must be granted in his favor because Plaintiffs’ legal malpractice action is indisputably barred by the statute of limitations. As stated above, Plaintiffs filed their legal malpractice action on June 7, 2016. Mr. Kitay argues that under CCP §340.6, Plaintiffs had one year to file their claim once (1) they had sustained their injury and (2) knew or should have known of the facts giving rise to the potential legal malpractice claim.

Here, Mr. Kitay argues several alternative theories regarding when Plaintiffs knew or should have known of the alleged malpractice. First, he contends that the briefing in the motion to continue trial shows that Plaintiffs had knowledge of the factual and legal basis for their malpractice claim. Thus, he contends that Plaintiffs had knowledge on the date the motion to continue trial was granted: December 30, 2014. Alternatively, Mr. Kitay contends that Ms. Grevious, Plaintiffs’ substitute attorney, informed Plaintiffs prior to the motion to dismiss hearing of all the facts necessary to form the legal and factual basis for Plaintiffs’ legal malpractice claim on May 19, 2015/May 20, 2015. Mr. Kitay does not state his position as to precisely when Plaintiffs suffered their alleged injury.

Legal Standard – Summary Judgment

A defendant moving for summary judgment bears the burden of showing that the causes of action have no merit or that there are one or more complete defenses to them. (CCP § 437c(p)(2).) A judge must grant a motion for summary judgment 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 judgment as a matter of law. (Id. § 437c(c); Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35.) Summary judgment is properly granted only if the moving party’s evidence establishes that there is no issue of material fact to be tried. (Lipson v. Superior Court (1982) 31 Cal.3d 362, 374.) A judge may not grant summary judgment when any material factual issue is disputed. (O’Riordan v. Federal Kemper Life Assur. (2005) 36 Cal.4th 281, 289.)

Discussion

A cause of action against an attorney for a wrongful act or omission in the performance of professional services must be brought within the earliest of either one year after the plaintiff discovers, or should have discovered, the wrongful act or omission, or four years from the date of the wrongful omission. (Code Civ. Proc. sec. 340.6). The test is when the “plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission.” (Code Civ. Proc. sec. 340.6).

The one year limitations is triggered by plaintiff’s discovery of an event causing injury. It is the occurrence of some such cognizable event rather than knowledge of its legal significance that starts the running of the statute of limitations. (McGee v. Weinberg (1979) 97 Cal. App. 3d 798, 804. [An injury does not disappear or become suspended because a more final adjudication of the result is sought.] Adams v. Paul (1995) 11 Cal. 4th 583, 591.)

In support of his motion, Mr. Kitay presents 16 purportedly undisputed material facts (“UMF”) intended to show that Mr. Cadette knew or should have known the facts constituting Mr. Kitay’s alleged malpractice on either (1) December 30, 2014 (when the motion to continue was granted) or (2) May 20, 2015 (when the motion to dismiss was granted) . Regardless of which date is used, Mr. Kitay argues that filing the Complaint on June 7, 2016 exceeds the one year statute of limitations.

However, as will be discussed below, although Mr. Kitay provides some evidence in support of his UMFs, Plaintiffs provide evidence that dispute Mr. Kitay’s UMF nos. 11, 12, 13, 15, and 16.

UMF nos. 11-13 state that after receiving the motion to dismiss, Ms. Grevious “communicated extensively with Mr. Cadette in regards to the legal and factual basis for the Motion to Dismiss . . . [and] communicated with Mr. Cadette about the alleged incidents of malpractice” and that this discussion “regarding alleged malpractice of Mr. Kitay, took place with Mr. Cadette on or about 4/20/2015.” (SS UMF nos. 11-13.) UMF nos. 15 and 16 state that the tentative ruling for the motion to dismiss was communicated to Mr. Cadette on May 19, 2015, at which time Ms. Grevious explained the factual and legal basis for the tentative ruling and for a potential malpractice claim, and advised Mr. Cadette to seek independent counsel. (SS UMF nos. 15-16.)

In support of UMF nos. 11 and 12, Mr. Kitay refers first to his own declaration, in which he attests that Ms. Grevious communicated with Plaintiffs regarding the factual and legal basis for the motion to dismiss and advised Mr. Cadette to consult independent counsel. (Kitay Decl. ¶¶9-10, 12.) The Court notes that Mr. Kitay does not explain how he purportedly has personal knowledge of this conversation between Mr. Cadette and his counsel, which took place months after Mr. Kitay withdrew from the case.

In further support of UMF nos. 11-13, 15-16, Mr. Kitay cites to two declarations from Ms. Grevious. The first was filed in opposition to the motion to dismiss in the underlying vehicle action (“MTD Declaration”). (Kitay Decl. Ex. D.) In the MTD Declaration, Ms. Grevious states that she learned that Mr. Kitay had done nothing to prosecute the case, and that when she “discussed the state of the case with the Plaintiffs, they did not seem to be aware of what was going on or to have been kept informed. . .” (Kitay Decl. Ex. D ¶¶8-10.) The second Grevious Declaration was filed in opposition to a demurrer in the instant action (“Demurrer Declaration.”) In the Demurrer Declaration, Ms. Grevious states that no later than May 1, 2015, Ms. Grevious explained the 5-year rule in connection to the motion to dismiss to Mr. Cadette, and that there were not adequate grounds to contest the ruling, and further advised him to consult with independent counsel about filing a malpractice suit against Mr. Kitay. (Kitay Decl. Ex. G pp. 2:21-3:19.)

In opposition, Mr. Cadette provided a declaration in which he attests that “at no time prior to the dismissal of the case did Lora Grevious advise me that Mr. Kitay had committed malpractice or that I should seek independent counsel,” and that Mr. Cadette “never received any written correspondence Lora Grevious [sic] advising me that Mr. Kitay had committed malpractice or that I should seek independent counsel.” (Cadette Decl. ¶¶2-3.) Mr. Cadette further attests that Ms. Grevious contacted him about the motion to dismiss and simply advised him that she would oppose the motion and that “[c]ertainy at no point did she tell me that my case would be dismissed without trial.” (Cadette Decl. ¶4.) Finally, Mr. Cadette attests that he has no recollection of Ms. Grevious contacting him on May 19, 2015 “regarding the

tentative ruling or on any other date that the case would be dismissed.” (Id. ¶5.)

Additionally, Mr. Cadette’s attorney, Joseph Weinberger, submits a declaration in which he attests that he has reviewed the entirety of the original file from the underlying vehicle case as provided by Ms. Grevious, and that there is no documentation memorializing or indicating any conversation or discussion with Mr. Cadette on or about May 19, 2015. (Weinberger Decl. ¶5.)

This above evidence sufficiently disputes UMF nos. 11-13, 15, and 16. If there is any issue of fact as to any of undisputed material facts, the motion must be denied. As noted In Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4″‘ 243,252, a party moving for summary judgment concedes the materiality of each fact enumerated in its separate statement and, as a consequence, cannot argue that the motion should be granted because one or more of these facts are not truly material. As the Nazir court noted, the facts enumerated in a moving separate statement have a due-process dimension in that they define for the opposing party the facts which, if disputed with admissible evidence, result in the motion being denied. (178 Cal.App.4th at 2521 [citation omitted].) In reliance on the universe of facts in the moving separate statement, a party opposing a summary judgment motion is entitled to stop working on the opposition once (s)he has produced admissible evidence demonstrating that a single fact presents a triable issue.

Accordingly, the motion is DENIED.

In reaching this ruling, the Court notes Mr. Kitay’s unsupported argument that even if Mr. Cadette never had a conversation with Ms. Grevious regarding Mr. Kitay’s alleged malpractice or the motion to dismiss, there is still no triable issue of material fact because Ms. Grevious’s knowledge is attributable to Mr. Cadette as his attorney. Mr. Kitay provides no legal authority in support of this statement. Moreover, as noted above, Mr. Kitay provided the Court with a set of UMFs, and at least five UMFs are disputed.

The Court further notes Mr. Kitay’s alternative position that Plaintiffs had knowledge of the factual and legal basis for their malpractice claim as of the date the motion to continue trial was granted: December 30, 2014. This position purportedly would be supported by UMF no. 9, which states that “[p]er Ms. Grevious’s declaration filed in support of the motion to continue trial, Mr. Kitay had not adequately prepared the case for trial and that Mr. Cadette should consult independent counsel.” (SS UMF no. 9.) However, the evidence provided in support of this UMF is a declaration from Ms. Grevious in support of the motion to continue, in which she attests that Mr. Kitay had not conducted discovery in the case and Plaintiffs would therefore be prejudiced if the trial was not continued. (Kitay Decl. ¶7; Ex. B at ¶¶4, 6.) This evidence does not support the UMF’s statement that Ms. Grevious informed Mr. Cadette at that time to consult independent counsel. And again, regardless, UMF nos. 11-13 and 15-16 are disputed.

As a result of the foregoing, the motion is denied.