2011-00096582-CU-PN

California Insurance Guarantee vs. William James Pursley

Nature of Proceeding:     Motion for Summary Judgment and/or Adjudication

Filed By:   Lucas, Robert W.

***  If oral argument is requested, the parties are directed to notify the clerk and
opposing counsel at the time of the request which of the 47 Undisputed Material
Facts offered by moving defendant in support of summary judgment will be
addressed at the hearing and the parties should be prepared to point to specific
evidence which is claimed to show the existence or non-existence of a triable
issue of material fact.  ***

Defendant Pursley’s motion for summary judgment or alternatively, for summary
adjudication of issues is GRANTED, as follows.

Plaintiff’s counsel is admonished for failing to comply with CRC Rule 3.1110(b)(3) and
(4).

Defendant’s request for judicial notice is unopposed and is granted subject to the
following limitation:  Judicial notice ordinarily does not extend to truth of facts asserted
in a document unless it is an order, a finding of fact or conclusion of law, or a
judgment. (See  e.g., Professional Engineers v. Dept. of Transp. (1997) 15 Cal.4th 543,
590; Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121;
see also, Bach v. McNelis (1989) 207 Cal.App.3d 852, 865 [“There exists a mistaken
notion that this means taking judicial notice of the existence of facts asserted in every
document of a court file, including pleadings and affidavits. … A court may take judicial
notice of the existence of each document in a court file, but can only take judicial
notice of the truth of facts asserted in documents such as orders, findings of fact and
conclusions of law, and judgments.” (Emphasis added).])

Defendant’s objections to plaintiff’s evidence in opposition are overruled.
Plaintiff filed no separate objections to defendant’s evidence.  To the extent plaintiff
has included in its separate statement in response to defendant’s undisputed material
facts (“UMF”) purported objections (see, Resp. to UMF Nos. 15, 48-54, 56-63 and 69-
110), these are overruled because they fail to comply with the express requirements of
CRC Rule 3.1354(b)(1)-(3) and because they appear to be directed at the UMF
themselves, rather than the evidence cited by defendant as support for these UMF.
(See, CRC Rules 3.1352, 3.1354.)

This litigation arises out of defendant attorney’s prior handling of the defense of a
worker compensation claim filed by Mr. Pina, an employee of Meyer Tomatoes.
Plaintiff alleges defendant attorney committed various acts of professional negligence
which caused or contributed to plaintiff expending substantially more on the worker
compensation claim than was warranted and/or appropriate under the circumstances.

Defendant now moves for summary judgment of the entire complaint on the ground it
is barred by the one year statute of limitations in Code of Civil Procedure §340.6.
Alternatively, defendant seeks summary adjudication of the several “claims” asserted
by plaintiff on various grounds, including that plaintiff lacks evidence to support its
“claims,” pursuant to Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848
[despite language of Code of Civil Procedure §437c(f), trial court may determine the
merits of summary adjudication motions “involving separate and distinct wrongful acts
which are combined in the same cause of action”].

Plaintiff opposes, arguing first that this action is not barred by Code of Civil Procedure
§340.6’s statute of limitations because it was tolled during defendant’s legal
representation through 3/5/2008 and because the complaint was filed less than one
year after plaintiff discovered defendant’s malpractice on or about 2/10/2010.  The
opposition also insists that questions of when a plaintiff discovered or should have
discovered malpractice typically raise issues of fact not amenable to summary
judgment/adjudication and that while a plaintiff must exercise reasonable diligence,
defendant here unquestionably owed the highest fiduciary obligations of honesty and
loyalty to plaintiff.  In fact, in light of this, plaintiff contends “there is no way” defendant
has carried his burden of demonstrating as a matter of law when plaintiff knew or
should have known of defendant’s malpractice when he repeatedly assured plaintiff his
handling of the worker compensation case was appropriate.  Plaintiff next asserts that
neither “judgment immunity” nor “collateral estoppel” applies and that defendant has
failed to demonstrate the prerequisites of each.  In response to defendant’s suggestion
that plaintiff’s discovery responses were factually devoid, the opposition maintains that
there is sufficient, substantial evidence that defendant fell below the applicable
standard of care in handling the worker compensation case and that defendant never
noticed the deposition of plaintiff’s person most knowledgeable through which
defendant could have obtained additional information on the malpractice claims
against him.  Regardless, plaintiff claims that malpractice of an attorney specialist
requires expert testimony so that plaintiff’s failure to provide in response to defendant’s
discovery more facts to support its allegations is simply not dispositive here.

As support for the motion for summary judgment based on a one year statute of
limitations, defendant offers UMF Nos. 1-47 and plaintiff admits that each of these 47
UMF, as phrased, is effectively undisputed.  Because plaintiff has offered no additional
material facts (“AMF”) of its own in an attempt to show a triable issue of material fact
with respect to defendant’s statute of limitations argument, the primary question here is
whether defendant’s UMF Nos. 1-47 are sufficient to satisfy his initial burden of             production under Code of Civil Procedure §437c(p)(2) and if not, summary judgment
on the statute of limitations must be denied. (See, Nazir v. United Airlines, Inc. (2009)
178 Cal.App.4th 243, 252 (citing Weil & Brown, Civil Procedure Before Trial,
Ch.10:95.1) [moving party’s inclusion of facts in its separate statement effectively
concedes each fact’s “materiality,” whether intended or not, and if there is a triable
dispute relating to any one, the motion must be denied].)  However, if defendant’s 47
UMF are sufficient to carry his initial burden, then the burden shifts to plaintiff to
produce admissible evidence which establishes the existence of at least one triable
issue of material fact that precludes summary judgment based on the statute of
limitations defense.

After a careful review of defendant’s UMF Nos. 1-47 and plaintiff’s response to each,
this Court holds that defendant has presented facts sufficient to satisfy his initial
burden of production under Code of Civil Procedure §437c(p)(2).  These 47 UMF
demonstrate that no later than 3/5/2008 plaintiff had in its possession, custody and/or
control information which would have caused a reasonable person to suspect legal
malpractice on the part of defendant and to diligently pursue such a claim even if
plaintiff was not aware of the specific nature of the malpractice. (See, UMF Nos. 11-
47.)  However, the complaint in this action was not actually filed until 2/7/2011 (UMF
47), long after the one year statute of limitations set forth in Code of Civil Procedure
§340.6 expired.  For these reasons, the Court concludes that defendant satisfied his
initial burden of production under §437c(p)(2) and thereby shifted to plaintiff the burden
to produce admissible evidence showing at least one triable issue of material fact that
precludes summary judgment based on the statute of limitations defense.  As noted
above, plaintiff effectively admitted that each of the 47 UMF offered by defendant is
undisputed since plaintiff’s responses to UMF Nos. 13, 15, 22, 27, 32, 38-39 and 47 do
not, on their face, establish any triable issue of material fact with respect to the
application of the one year statute of limitations.  Coupled with plaintiff’s failure to
include in its opposition any AMF which might otherwise create a triable issue of
material fact with regard to the statute of limitations, defendant is entitled to summary
judgment on the grounds the complaint was not timely filed.

Because summary judgment is granted, the Court need not address the alternative
motion for summary adjudication of issues.

This minute order is effective immediately.  Pursuant to CRC Rule 3.1312, counsel for
defendant to prepare an order which conforms to Code of Civil Procedure §437c(g)
along with a judgment of dismissal.