Filed 1/29/20 Shumaker v. C.S. Scarcella & Associates CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

SOPHIA SHUMAKER,

Plaintiff and Appellant,

v.

C.S. SCARCELLA & ASSOCIATES et al.,

Defendants and Respondents. B294200

(Los Angeles County

Super. Ct. No. KC069557)

APPEAL from a judgment of the Superior Court of Los Angeles County, Dan Thomas Oki, Judge. Affirmed.

Law Offices of Marc E. Grossman, Marc E. Grossman, and Anthony Sgherzi for Plaintiff and Appellant.

No appearance for Defendants and Respondents.

__________________________

Plaintiff Sophia Shumaker sued defendants Christopher Scarcella and his law firm, C.S. Scarcella & Associates, for legal malpractice arising from defendants’ representation in her marital dissolution proceedings. The trial court granted summary judgment in defendants’ favor, after finding the malpractice action was time-barred under Code of Civil Procedure section 340.6 (all further statutory references are to the Code of Civil Procedure) because defendants did not continue to represent plaintiff in the dissolution proceeding within the year preceding the filing of this action. We affirm.

BACKGROUND

The following facts are undisputed: On August 17, 2017, plaintiff sued defendants for legal malpractice and breach of fiduciary duty. In her second amended complaint, plaintiff alleged that Mr. Scarcella caused her to enter into a stipulated judgment that awarded all of the equity in the marital home to her husband, and failed to account for plaintiff’s community interest in the property as agreed by the parties. The stipulated judgment was entered on December 15, 2015.

When plaintiff learned about the error in the stipulated judgment, Mr. Scarcella assured her he would “fix the situation,” and filed a motion for relief under section 473, subdivision (b). The motion was supported by a declaration by Mr. Scarcella testifying the judgment did not accurately reflect the parties’ agreement. On February 18, 2016, the family court denied the motion, without prejudice.

On April 18, 2016, plaintiff signed a retainer agreement with Marc Elliot Grossman’s law firm for “preparation [and] []filing of [a section] 473 motion to set aside [the] stipulated judgment.” As part of that agreement, Mr. Grossman promised to correspond and communicate with “prior counsel” regarding “issues relating to 473 relief.”

That same day, Mr. Scarcella received a letter from Mr. Grossman, advising that plaintiff “retained our office to advise her and assist her in the filing of a Substitution of Attorney.” Mr. Scarcella signed the enclosed standard Judicial Council substitution of attorney form on April 19, 2016, consenting to the substitution (whereby plaintiff would represent herself in the dissolution proceedings), and returned it to Mr. Grossman. Mr. Scarcella testified that after April 19, 2016, he “never appeared in court on Plaintiff’s behalf or as Plaintiff’s representative, and never spoke to Plaintiff again.”

On June 10, 2016, Mr. Grossman wrote to Mr. Scarcella, advising he had been retained “in connection with seeking to set aside the [December 15, 2015] judgment” under the attorney fault provisions of section 473, subdivision (b), and that he had prepared a declaration in support of the motion for Mr. Scarcella to sign, “in conformity with” the declaration Mr. Scarcella had filed with his earlier section 473 motion.

The enclosed proposed declaration was not sent in electronic format, and could not be edited. Mr. Scarcella testified that he had no correspondence with Mr. Grossman regarding the declaration, and simply signed and returned it. Mr. Grossman confirmed in his deposition that he “[did] not recall ever speaking to” Mr. Scarcella.

According to the declaration, Mr. Scarcella failed to realize the stipulated judgment “incorrectly and contrary to the negotiated agreement failed to provide for [plaintiff’s] share of the proceeds of the community residence.” At the conclusion of the declaration, as is customary in declarations supporting motions for summary judgment, defendant averred: “If called to testify as a witness in this matter, I could and would competently testify to the above facts.” (See § 437c, subd. (d) [“Supporting . . . declarations shall be made by a person on personal knowledge . . . and shall show affirmatively that the affiant is competent to testify to the matters stated in the . . . declarations”].)

Mr. Grossman filed the section 473 motion on June 18, 2016. It was denied by the family court on August 24, 2016.

According to the second amended complaint, Mr. “Scarcella’s participation and assistance in the family court proceeding . . . did not end until August 24, 2016, when the second [section] 473 motion was denied.”

Mr. Scarcella testified that between April 19 and August 24, 2016, he did not speak with plaintiff or her attorneys, did not provide any legal advice to plaintiff or her attorneys, performed no legal work for plaintiff, did not appear in court for plaintiff, did not hold himself out as a representative of plaintiff, did not negotiate on plaintiff’s behalf, and did not send any bills to plaintiff or her attorneys. After he returned the substitution of attorney form to Mr. Grossman, Mr. Scarcella was never served with any documents in the family law case, and never drafted, edited, modified, or discussed any documents filed in the family law case with plaintiff or her attorneys.

Defendants moved for summary judgment, arguing plaintiff’s claims were time-barred under section 340.6 because Mr. Scarcella stopped representing plaintiff in April 2016, more than a year before this action was filed, when plaintiff and Mr. Scarcella executed a substitution of attorney, at which point plaintiff was represented by new counsel.

Plaintiff’s opposition argued the statute of limitations was tolled until August 24, 2016, the date the second section 473 motion was denied, because “Mr. Scarcella was a participant in the representation of” plaintiff and assisted her with the section 473 motion. The opposition was not supported by any evidence, except for a declaration from an associate at Mr. Grossman’s firm, purporting to attach excerpts from Mr. Scarcella’s deposition. The excerpts were not attached to the declaration.

The trial court granted the motion, finding there was no evidence of continuing legal representation by Mr. Scarcella, and that the action was time-barred.

This timely appeal followed.

DISCUSSION

As an initial matter, plaintiff has forfeited any claim of error on appeal. Her appellate brief does not contain any citations to the record, and does not fairly discuss the evidence or proceedings below. Her brief makes unsupported claims such as: “Mr. Scarc[e]lla continued to provide legal assistance to Plaintiff and worked with the Grossman law office to prepare and present the strongest possible [section] 473 motion. In fact, Defendant Scarcella was available to testify before the Court and continued to assist until the Judge finally denied the motion on August 24, 2016.” No evidence in the record supports these claims. (Cal. Rules of Court, rule 8.204(a)(1)(C) [an appellant must “[s]upport any reference to a matter in the record by a citation”], rule (a)(2)(C) [an appellant’s brief must “[p]rovide a summary of the significant facts limited to matters in the record”]; Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 737-738 [failure to state all of the evidence fairly in an appellate brief waives the alleged error]; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [failure to support an argument with citations to the record waives any claim of error on appeal].)

The appeal fails on its merits.

Legal malpractice claims are subject to a one-year statute of limitations. (§ 340.6, subd. (a).) The limitations period is tolled, however, during the time “[t]he attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.” (Id., subd. (a)(2).)

Section 340.6’s legislative history makes clear that “[the] ‘continuous representation’ rule was adopted in order to ‘avoid the disruption of an attorney-client relationship by a lawsuit while enabling the attorney to correct or minimize an apparent error, and to prevent an attorney from defeating a malpractice cause of action by continuing to represent the client until the statutory period has expired.’ ” (Laird v. Blacker (1992) 2 Cal.4th 606, 618.) “An objective standard is used to determine whether an attorney’s representation has been continuous. . . . ‘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.’ . . . The general rule is that the attorney’s representation does not end ‘until the agreed tasks or events have occurred, the client consents to termination or a court grants an application by counsel for withdrawal.’ ” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 887-888, citations omitted.)

Here, it is undisputed that plaintiff and Mr. Scarcella consented to termination of the attorney-client relationship in April 2016, and that plaintiff and Mr. Scarcella had no ongoing mutual relationship after April 19, 2016. After April 19, 2016, when Mr. Scarcella signed the declaration in support of Mr. Grossman’s motion for relief from default, Mr. Scarcella acted as a witness, not as counsel for plaintiff. (See, e.g., Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 229 [no tolling where former attorney no longer provided legal representation to client, but instead acted as a consultant and expert witness retained by client’s new counsel in the same litigation].)

DISPOSITION

The judgment is affirmed.

GRIMES, J.

WE CONCUR:

BIGELOW, P. J.

WILEY, J.