Filed 10/28/19 Stameroff v. McIntosh CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

GEORGE STAMEROFF,

Plaintiff and Appellant,

v.

WAYNE K.D. MCINTOSH,

Defendant and Respondent.

A153344

(Marin County

Super. Ct. No. CIV 1601303)

In this legal malpractice action, George Stameroff contends that the trial court erred by granting summary judgment in favor of his former attorney, Wayne K.D. McIntosh. The court held that Stameroff’s suit is barred by the statute of limitations. The sole issue here is whether, after unequivocally telling Stameroff that he would not represent him further, McIntosh’s efforts to help him find an appellate attorney tolled the limitations period. We hold they did not, and we therefore affirm.

BACKGROUND

A.

McIntosh represented Stameroff in successive probate and family law proceedings aimed at establishing an entitlement to trust assets. The last of the proceedings ended in February 2015 when a probate court denied Stameroff’s claim against the trust. In the instant malpractice action, Stameroff alleges McIntosh failed to file the probate claim on time.

The parties’ retainer agreement in the probate matter was expressly limited in scope, and McIntosh filed in the probate court a “Notice of Limited Scope Representation” stating he would represent Stameroff at an April 2014 hearing and “until submission of the order after hearing.” In March 2015, McIntosh and Stameroff received notice of the court’s order denying Stameroff’s claim.

The next day, McIntosh told Stameroff he did not handle appeals, Stameroff was “on his own now,” and Stameroff needed to find an appellate attorney to file an appeal within 60 days. A few days later, Stameroff asked about next steps, and McIntosh replied, “The issue is only one of appeal. I am not an appellate lawyer and so you will need to urgently locate an appellate lawyer.” McIntosh promised to help Stameroff find an appellate attorney, and Stameroff began contacting McIntosh’s referrals. The last date McIntosh billed Stameroff for legal services was February 9, 2015.

Stameroff paid appellate attorney John Derrick $1,000 to review his file, which Stameroff picked up from McIntosh. On April 7, McIntosh participated in a conference call with Stameroff and Derrick. During the call, Derrick faulted McIntosh for failing to file a timely claim on Stameroff’s behalf. Derrick did not thereafter represent Stameroff on appeal. Stameroff concedes that “on April 7 he became aware that McIntosh had committed malpractice.”

The relevant actions that took place within the one-year limitations period applicable to Stameroff’s malpractice action (filed April 11, 2016) are as follows. Stameroff asked McIntosh for his complete file, stating “I need these for my appeal, the timing is urgent.” McIntosh responded by email: “I thought I had provided you with the documents you needed but if your appellate attorney wants further documents please ask John Derek [sic] to call me to discuss what he needs.” On April 20, 2015, McIntosh also orally assured Stameroff that he had a strong appeal and that McIntosh would continue seeking appellate counsel for him.

B.

Stameroff filed his malpractice suit on April 11, 2016. McIntosh moved for summary judgment on the ground that the complaint was untimely. In opposition, Stameroff maintained McIntosh continued to represent him “in his efforts at trying to find an appellate attorney” until April 20, 2015. The trial court agreed with McIntosh, citing McIntosh’s statements that Stameroff needed to find an appellate attorney, Stameroff’s search for such an attorney, the transfer of Stameroff’s files, and the fact that McIntosh did not bill Stameroff for legal services after February 2015. The court denied a subsequent motion for reconsideration and entered judgment for McIntosh.

DISCUSSION

A.

“[A] motion for summary judgment shall be granted 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.” (Code Civ. Proc., § 437c, subd. (c).) In reviewing an order granting summary judgment, “we independently examine the record in order to determine whether triable issues of fact exist to reinstate the action.” (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) We presume the judgment is correct. As the appellant, Stameroff has the burden of demonstrating that the trial court erred. To do so, he must identify triable issues of fact with citations to the record and supporting legal authority. (GoTek Energy, Inc. v. SoCal IP Law Group, LLP (2016) 3 Cal.App.5th 1240, 1245.)

B.

The statute of limitations for attorney malpractice claims is one year. (§ 340.6, subd. (a).) The limitations period is tolled, however, as long as the attorney “continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.” (§ 340.6, subd. (a)(2).)

Attorney-client relationships typically end when the agreed legal tasks have been completed, the attorney withdraws, or the client fires the attorney, with or without retaining new counsel. (See Nielsen v. Beck (2007) 157 Cal.App.4th 1041, 1049.) The question is whether there is evidence of “ ‘an ongoing mutual relationship and of activities in furtherance of the relationship.’ ” (Id., citing Worthington v. Rusconi (1994) 29 Cal.App.4th 1488, 1498.) The relationship ends if an attorney expressly withdraws and a reasonable client would no longer expect the attorney to provide further legal services. (Gonzalez v. Kalu (2006) 140 Cal.App.4th 21, 30-31.)

C.

Stameroff argues that the limitations period was tolled beyond April 11, 2015 (one year prior to his lawsuit, filed on April 11, 2016) while McIntosh tried to help him find appellate counsel. There are three reasons why Stameroff fails to convince us there is a triable issue of fact on this issue.

First, Stameroff points to no evidence supporting a reasonable belief that McIntosh would provide further legal services. The parties agreed to limit McIntosh’s representation to the probate hearing on April 14, 2014, and “until submission of the order after [that] hearing.” They received notice of the court’s order in March 2015. Stameroff identifies no evidence that McIntosh performed any further legal services. Following the order, McIntosh did not bill Stameroff for any legal work. He told Stameroff he did not handle appeals, Stameroff was “on his own now,” and he needed to find an appellate attorney to file an appeal within 60 days. McIntosh could hardly have been clearer that his representation of Stameroff had ended. His efforts to find an appellate attorney for Stameroff, and to help the transition to a new attorney, only emphasized the point. (See Shaoxing City Maolong Wuzhong Down Products, Ltd. v. Keehn & Associates, APC (2015) 238 Cal.App.4th 1031, 1039 [no continuing representation where law firm promised to oversee transition to new attorney, provided no legal services, and sent no bills]; GoTek Energy Inc. v. SoCal IP Law Group, LLP, supra, 3 Cal.App.5th at pp. 1247-1248 [“[i]f client actually believed that (his former counsel) would continue to provide legal services by transferring its files to replacement counsel, its belief was unreasonable as a matter of law”].)

Second, the language of the statute does not support Stameroff’s position. (§ 340.6, subd. (a)(2) [tolling applies when “attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred”].) McIntosh did nothing to “represent” Stameroff in the “specific subject matter” (the probate case) within the limitations period—he did not provide legal advice, perform legal research, appear at a hearing, file pleadings, negotiate with an opposing party, or bill Stameroff for any legal services regarding the probate matter. (Shaoxing City Maolong Wuzhong Down Products, Ltd. v. Keehn & Associates, APC, supra, 238 Cal.App.4th at p. 1039.)

Third, imputing a continuing relationship here would not serve the purposes of the statute, which are (1) to avoid disrupting the attorney-client relationship with a malpractice action when the attorney still could correct or mitigate any errors, and (2) to prevent an attorney from defeating a malpractice action by continuing to represent the client until the limitation period expires. (Laird v. Blacker (1992) 2 Cal.4th 606, 618.) Neither of these risks exists when an attorney completes the agreed legal tasks, tells the client that he will not represent the client in the next stage of the litigation, and advises the client to get a new attorney.

In short, Stameroff has not met his burden of demonstrating that the trial court erred. The evidence, construed liberally in Stameroff’s favor, shows that McIntosh affirmatively ended his representation of Stameroff more than a year before Stameroff filed suit. We need not address the parties’ other contentions.

DISPOSITION

The judgment is affirmed. Stameroff shall bear McIntosh’s costs on appeal.

 

_________________________

BURNS, J.

WE CONCUR:

_________________________

JONES, P. J.

_________________________

NEEDHAM, J.

A153344