Filed 9/3/19 Fakhrai v. Rosenberg CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MEHDI FAKHRAI,

Plaintiff and Appellant,

v.

DAVID ROSENBERG et al.,

Defendants and Respondents.

D075117

(Super. Ct. No. 37-2017-00018411-
CU-PN-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Katherine A. Bacal, Judge. Affirmed.

Soheila S. Azizi & Associates and Justin G. Lynch for Plaintiff and Appellant.

Klinedinst, Heather L. Rosing, Leah Plaskin Lorenz, and Robert M. Shaughnessy for Defendants and Respondents.

Mehdi Fakhrai, a cardiovascular surgeon, appeals a judgment in favor of his former attorneys, David Rosenberg and Rosenberg, Shpall & Associates (collectively, Rosenberg), following an order granting summary adjudication of Fakhrai’s claims for legal malpractice and breach of fiduciary duty. Rosenberg represented Fakhrai after his vascular surgery privileges were suspended by Providence Holy Cross Medical Center (Providence).

Fakhrai contends the trial court erred by summarily adjudicating the two claims because (1) the court misperceived the scope of Rosenberg’s duty of care to Fakhrai regarding malpractice litigation against another attorney and (2) the court should have allowed Fakhrai to amend his complaint to include allegations regarding a potential whistleblower retaliation cause of action against Providence. We conclude the court did not err. The undisputed facts show that Rosenberg did not owe Fakhrai a duty of care regarding the malpractice litigation, and the court did not abuse its discretion by refusing Fakhrai’s request to amend his complaint. The request was made for the first time in his opposition to Rosenberg’s motion for summary adjudication, long after Fakhrai was aware of the facts underlying the amendment and without any explanation for the delay. We therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Consistent with our standard of review of orders granting summary judgment or summary adjudication, we recite the historical facts in the light most favorable to Fakhrai as the nonmoving party. (See Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 (Saelzler); Light v. Dept. of Parks & Recreation (2017) 14 Cal.App.5th 75, 81.) Additional facts are discussed where relevant in the next section.

In July 2013, after an investigation into Fakhrai’s surgical practices, the medical executive committee at Providence summarily suspended Fakhrai’s vascular surgery privileges. Fakhrai contested the suspension and requested a hearing before Providence’s judicial review committee. Fakhrai was represented in the suspension proceedings by an attorney, Jeffrey Grant Kennedy. Following a multiday hearing, the judicial review committee upheld Fakhrai’s summary suspension. Fakhrai appealed the committee’s decision to Providence’s appeal board. The appeal board affirmed the committee’s decision, and Providence’s full governing board agreed. The suspension of Fakhrai’s vascular surgery privileges became final in December 2014.

Eight months later, in August 2015, Fakhrai contacted Rosenberg. Fakhrai executed an engagement letter with the subject, “Representation—Writ of Mandamus.” The letter stated, “The purpose of this letter is to set out our agreement regarding the retention of our firm to represent you, in regards to filing a Writ of Mandamus challenging the [Providence appeal board’s] decision sustaining the findings of the [judicial review committee] to support the [medical executive committee’s] decision to summar[ily] suspend and terminate your privileges at [Providence].” It further stated, “As we discussed, any Writ is an uphill battle, and I can not guarantee any results. . . . [F]or the Writ of Mandamus, and only for the Writ of Mandamus, the amount of attorneys fees will not exceed $30,000.00.” Rosenberg understood that the firm’s representation of Fakhrai was limited to a potential petition for writ of mandamus.

After assessing a potential writ petition, Rosenberg advised Fakhrai that the petition would likely be barred by the applicable statute of limitations and it was very unlikely to succeed on the merits. Rosenberg also advised Fakhrai he may have a legal malpractice claim against Kennedy, Fakhrai’s attorney in the suspension proceedings. However, Rosenberg said that the firm’s practice did not include legal malpractice, and the firm could not handle any legal malpractice litigation against Kennedy. Rosenberg attempted to find another attorney who would represent Fakhrai in that litigation, but the efforts were unsuccessful.

Because the statute of limitations on any legal malpractice action against Kennedy was likely about to run, Rosenberg prepared a complaint against Kennedy that Fakhrai could file as a self-represented plaintiff. Rosenberg again told Fakhrai that the firm would not be representing him if he filed the complaint.

Fakhrai filed the complaint against Kennedy in December 2015. (Fakhrai v. Kennedy (Super. Ct. L.A. County, 2016, No. BC604404).) He identified himself as a self-represented litigant. The complaint did not identify Rosenberg in the caption or otherwise. Rosenberg was never counsel of record in that litigation, it did not appear in court on Fakhrai’s behalf or file any documents, and it never had any substantive communications about the case with Fakhrai following the filing of the complaint.

Several months later, because Fakhrai did not serve the complaint on Kennedy or appear at a scheduled case management conference, the court issued an order to show cause why the action should not be dismissed for failure to prosecute. When Fakhrai did not respond or appear, the court dismissed the action.

Fakhrai retained another attorney, who filed an ex parte application and a noticed motion to set aside the dismissal. In a supporting declaration, Fakhrai explained that he asked a different attorney (not Rosenberg) to appear at the case management conference and inform the court that Fakhrai was still seeking representation. For unknown reasons, the attorney did not attend. Afterward, Fakhrai received a notice from the court, but he did not understand it. In his declaration, Fakhrai stated, “I have been looking for an attorney to take my case. It has been difficult to find someone interested in taking my case. I finally found [the current attorney], who agreed to take my case, provided that the dismissal has been overturned.” In her own declaration, Fakhrai’s attorney, stated that Fakhrai had been representing himself in the malpractice litigation and had unsuccessfully attempted to find an attorney to represent him. The court denied the ex parte application and motion to set aside.

Meanwhile, Fakhrai, represented by still other attorneys, filed this action against Rosenberg. His complaint alleged causes of action for legal malpractice, breach of fiduciary duty, and breach of contract. The first two causes of action were premised on Rosenberg’s alleged failure to timely file a petition for writ of mandamus against Providence and its alleged failure to provide adequate legal advice in Fakhrai’s legal malpractice action against Kennedy. In addition to these grounds, the third cause of action was premised on Rosenberg’s failure to find other counsel to represent Fakhrai in the legal malpractice action.

Rosenberg filed a motion for summary judgment or, in the alternative, summary adjudication of Fakhrai’s three causes of action. Regarding any alleged failure to file a writ petition, Rosenberg argued that Fakhrai could not show any harm because any petition would have been time-barred and meritless. Regarding any alleged failure to prosecute the legal malpractice action against Kennedy, Rosenberg argued that the scope of its representation did not include that action so it had no duty of care that could be breached. Rosenberg also argued that Fakhrai could not show he would have obtained a better result in that action. Lastly, Rosenberg addressed an allegation outside the pleadings that Fakhrai had “informally asserted” in the litigation. Fakhrai appeared to assert that Rosenberg should have advised him to file an action against Providence under Health and Safety Code section 1278.5. The action would be based on the claim that Providence unlawfully retaliated against Fakhrai for his complaints regarding medical care at the hospital. Rosenberg argued that any such action would also have been time-barred and meritless.

In his opposition, Fakhrai conceded that a petition for writ of mandate would have been time-barred. He therefore addressed only the legal malpractice action against Kennedy and the retaliation action against Providence. He argued that Rosenberg assumed a duty to advise him how to proceed in the Kennedy litigation and that the litigation would have been successful. He formally requested leave to amend his complaint to add an allegation based on Rosenberg’s failure to advise him to file a retaliation claim against Providence. On the merits of that claim, he argued that the doctrine of equitable tolling applied to prevent the statute of limitations from running and he would have prevailed.

The trial court granted Rosenberg’s motion in part. It found based on the undisputed facts that Rosenberg was entitled to judgment on Fakhrai’s claims for legal malpractice and breach of fiduciary duty. The court determined that Fakhrai’s theory based on the legal malpractice action against Kennedy failed because Rosenberg did not undertake to represent Fakhrai in that matter. The court noted that Rosenberg’s engagement letter limited its work to a potential writ petition, Rosenberg told Fakhrai it would not represent him in the legal malpractice action, Fakhrai filed his complaint as a self-represented litigant, and Fakhrai explained in his later declaration that he was looking for representation. He did not mention representation by Rosenberg.

The court denied Fakhrai’s request to amend his complaint to add allegations regarding the retaliation claim. It noted that Fakhrai had not given any explanation for his delay in requesting leave to amend. The lawsuit had been pending for almost 16 months, Rosenberg served its summary judgment motion some four months prior, and Fakhrai was aware of the theory because he had mentioned it in discovery responses. The court found that Fakhrai’s request was unreasonably delayed, without explanation, and would prejudice Rosenberg. Moreover, the court found that any claim based on the retaliation allegations would be meritless. A retaliation claim against Providence would have been barred by the statute of limitations; equitable tolling did not apply.

Several months after the summary adjudication order, Fakhrai dismissed with prejudice his remaining cause of action for breach of contract. The court entered judgment in favor of Rosenberg, and Fakhrai appeals.

DISCUSSION

I
Summary Adjudication Standards

Our review following an order granting summary adjudication is substantively identical to our review following an order granting summary judgment. (See Orange County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 367.) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) “A defendant’s motion for summary judgment should be granted if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law. [Citation.] The burden of persuasion remains with the party moving for summary judgment. [Citation.] When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff ‘does not possess and cannot reasonably obtain, needed evidence.’ ” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003 (Kahn).)

If the defendant “carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.) “The plaintiff . . . shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

“We review the record and the determination of the trial court de novo.” (Kahn, supra, 31 Cal.4th at p. 1003.) “In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [the plaintiff’s] evidentiary submission while strictly scrutinizing defendants’ own showing, and resolving any evidentiary doubts or ambiguities in plaintiff’s favor.” (Saelzler, supra, 25 Cal.4th at p. 768.) “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.” (Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.)

II
The Legal Malpractice Action

Fakhrai first contends the court erred by finding that Rosenberg had no duty to advise him in his legal malpractice action against Kennedy. To sustain a claim for legal malpractice, a plaintiff must prove the following elements: “(1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney’s negligence.” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.)

We are concerned here with the element of duty. “The question of the existence of a legal duty of care in a given factual situation presents a question of law which is to be determined by the courts alone. Entry of summary judgment in favor of the defendant in a professional negligence action is proper where the plaintiff is unable to show the defendant owed such a duty of care. [Citations.] Absent the existence of a duty by the professional to the claimant, there can be no breach and no negligence.” (Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1682-1683 (Nichols).)

“Except for those situations where an attorney is appointed by the court, the attorney-client relationship is created by some form of contract, express or implied, formal or informal.” (Fox v. Pollack (1986) 181 Cal.App.3d 954, 959.) “California law is settled that a client’s subjective belief that an attorney-client relationship exists, standing alone, cannot create such a relationship, or a duty of care owed by the attorney to that plaintiff. [Citation.] This is because a plaintiff cannot unilaterally establish an attorney-client relationship, and its hindsight ‘beliefs’ that such a relationship existed are thus legally irrelevant. [Citation.] Instead, it is the intent and conduct of the parties that control the question as to whether an attorney-client relationship has been created.” (Zenith Insurance Co. v. O’Connor (2007) 148 Cal.App.4th 998, 1010.)

“An attorney’s duty to his or her client depends on not only the existence of an attorney-client relationship, but also the scope of the duties assumed by the lawyer.” (Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 983.) “[T]he scope of this relationship may be limited by the agreement between the attorney and the client. [Citation.] But an attorney who undertakes one matter on behalf of a client owes that client the duty to at least consider and advise the client if there are apparent related matters that the client is overlooking and that should be pursued to avoid prejudicing the client’s interests.” (Janik v. Rudy, Exelrod & Zieff (2004) 119 Cal.App.4th 930, 940.)

“[E]ven when a retention is expressly limited, the attorney may still have a duty to alert the client to legal problems which are reasonably apparent, even though they fall outside the scope of the retention. The rationale is that, as between the lay client and the attorney, the latter is more qualified to recognize and analyze the client’s legal needs. The attorney need not represent the client on such matters. Nevertheless, the attorney should inform the client of the limitations of the attorney’s representation and of the possible need for other counsel.” (Nichols, supra, 15 Cal.App.4th at p. 1684, italics added.)

The issue here is not whether Rosenberg had a duty to alert Fakhrai that he may have claims against Kennedy. Nor is the issue whether Rosenberg competently drafted the complaint against Kennedy that Fakhrai later filed. The issue instead is whether Rosenberg had a duty to advise Fakhrai regarding the litigation itself. As noted, the existence of a duty is a question of law. Viewing the evidence in the light most favorable to Fakhrai, we conclude he cannot show that Rosenberg undertook a duty to advise Fakhrai on the conduct of his malpractice action against Kennedy. Rosenberg’s engagement letter expressly limited its representation of Fakhrai to a potential petition for writ of mandate. While Rosenberg advised Fakhrai he may have claims against Kennedy, it repeatedly told Fakhrai it would not represent him in such litigation. Rosenberg provided a draft complaint to Fakhrai to file on his own behalf; it did not file the complaint itself. Likewise, Fakhrai did not turn to Rosenberg for advice in the litigation and instead sought other representation. After the litigation was dismissed, Fakhrai admitted he had been representing himself, blamed a different attorney for failing to appear, and did not mention Rosenberg. Under these circumstances, there was no express or implied agreement that Rosenberg would advise Fakhrai on the conduct of his litigation against Kennedy, and Rosenberg did not have a duty to do so.

Fakhrai argues that Rosenberg “impliedly expanded the scope of [its] representation by providing legal advice pertaining to the Kennedy legal malpractice action, and by drafting the complaint.” Even if the scope of Rosenberg’s representation expanded beyond a potential petition for writ of mandate when Rosenberg drafted a complaint for Fakhrai to file, Fakhrai’s claim that the representation encompassed the conduct of the malpractice action is unpersuasive. Rosenberg told Fakhrai it would not represent him in that action, and Fakhrai acted accordingly. Even where an attorney has a duty to alert a client to the existence of additional claims beyond the scope of representation, “[t]he attorney need not represent the client on such matters.” (Nichols, supra, 15 Cal.App.4th at p. 1684, italics added.)

Because Fakhrai’s legal malpractice claim against Rosenberg depends on the existence of a duty with respect to Fakhrai’s action against Kennedy, the court did not err by granting summary adjudication of that claim in favor of Rosenberg. In light of our conclusion, we need not consider whether summary adjudication was proper on other grounds as well.

III
The Retaliation Claim

Fakhrai contends the trial court erred by denying his request to amend his complaint to add an additional theory of legal malpractice. This additional theory was based on Rosenberg’s failure to advise him to file a retaliation action against Providence under Health and Safety Code section 1278.5. Fakhrai made this request in his opposition to Rosenberg’s summary judgment motion. After laying out the standards for such an amendment, Fakhrai wrote, “In order to render substantial justice to the parties, [Fakhrai] respectfully requests an opportunity for leave to file an amended complaint to plead a cause of action for legal malpractice for failure to advise [Fakhrai] of his rights to file a complaint against [Providence] for violation of the health care whistleblower statute.” Fakhrai did not provide a copy of the proposed amendment or a supporting declaration addressing his request to amend.

In its order denying leave to amend, the trial court wrote, “[Fakhrai] presents no explanation for the delay in seeking an amendment.” It noted that Fakhrai was aware of the facts underlying his claims when he filed his complaint. Fakhrai had even mentioned this theory in discovery responses. And, despite having received Rosenberg’s summary judgment motion several months prior, Fakhrai waited until his opposition to request leave to amend.

” ‘ “[T]he trial court has wide discretion in allowing the amendment of any pleading [citations], [and] as a matter of policy the ruling of the trial court in such matters will be upheld unless a manifest or gross abuse of discretion is shown. [Citations.]” ‘ [Citations.] Courts must apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial, when no prejudice is shown to the adverse party. [Citation.] However, ‘ “even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial.” ‘ ” (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746 (Huff).)

“[U]nwarranted delay in seeking leave to amend may be considered by the trial court when ruling on a motion for leave to amend [citation], and appellate courts are less likely to find an abuse of discretion where, for example, the proposed amendment is ‘ “offered after long unexplained delay . . . or where there is a lack of diligence” ‘ [citation]. Thus, when a plaintiff seeks leave to amend his or her complaint only after the defendant has mounted a summary judgment motion directed at the allegations of the unamended complaint, even though the plaintiff has been aware of the facts upon which the amendment is based, ‘[i]t would be patently unfair to allow plaintiffs to defeat [the] summary judgment motion by allowing them to present a “moving target” unbounded by the pleadings.’ ” (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1280 (Falcon).)

Fakhrai requested leave to amend for the first time in his opposition to Rosenberg’s summary judgment motion. He admits in his appellate briefing that his opposition “failed to identify the justifiable and reasonable delay in requesting leave to amend.” Given this admission, and the record before the trial court, we fail to see how the trial court abused its discretion by denying leave to amend. (See Falcon, supra, 224 Cal.App.4th at p. 1280; see also Melican v. Regents of the University of California (2007) 151 Cal.App.4th 168, 176 [no abuse of discretion where plaintiff gave no explanation for delay]; Huff, supra, 138 Cal.App.4th at p. 746 [no abuse of discretion where plaintiff gave no explanation for delay]; Record v. Reason (1999) 73 Cal.App.4th 472, 486-487 [no abuse of discretion where plaintiff gave no adequate explanation for delay].)

In his briefing here, Fakhrai contends the delay was not unreasonable because he did not know his retaliation claim was time-barred (and therefore that Rosenberg was negligent) until he pursued the claim against Providence and lost. Even if we could consider this explanation, which was not presented to the trial court, it would not show the trial court abused its discretion. Fakhrai pursued his retaliation claim in another trial court, in a separate lawsuit. (Fakhrai v. Providence Health System – Southern California (Super. Ct. L.A. County, 2017, No. BC643887).) That court rejected Fakhrai’s claim in June 2017, and he abandoned his appeal of that judgment in October 2017. (Fakhrai v. Providence Health System – Southern California (B284454, app. abandoned Oct. 2, 2017).) The abandonment occurred more than five months before he filed his opposition and requested leave to amend, three months before Rosenberg filed its summary judgment motion, and two months before Rosenberg even answered Fakhrai’s complaint. Even accepting Fakhrai’s premise, he provides no explanation for not promptly seeking to amend his complaint after the separate litigation of his retaliation claim ended—especially given the fact that Fakhrai was aware of the facts underlying the amendment and had mentioned this theory in discovery responses nine months before. Under these circumstances, Fakhrai has not shown the trial court abused its discretion by denying leave to amend.

Fakhrai claims that Rosenberg could not be prejudiced by any amendment because he mentioned the retaliation claim in discovery responses and it did not constitute an entirely new cause of action. We disagree. Discovery responses are not a substitute for proper pleadings. And, if Fakhrai’s late amendment had resulted in the denial of Rosenberg’s motion for summary adjudication of this claim, Rosenberg would have been prejudiced. “[W]hen a plaintiff seeks leave to amend his or her complaint only after the defendant has mounted a summary judgment motion directed at the allegations of the unamended complaint, even though the plaintiff has been aware of the facts upon which the amendment is based, ‘[i]t would be patently unfair to allow plaintiffs to defeat [the] summary judgment motion by allowing them to present a “moving target” unbounded by the pleadings.’ ” (Falcon, supra, 224 Cal.App.4th at p. 1280.)

Fakhrai also claims the trial court was inconsistent because it allowed an oral request to amend his breach of contract claim to add allegations of excessive billing. Fakhrai has not provided any transcript of the summary judgment hearing, so we have no way of assessing any such alleged inconsistency. Fakhrai’s unsupported assertion is insufficient to show error. (See Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259 [“The absence of a record concerning what actually occurred at the hearing precludes a determination that the court abused its discretion.”].)

Fakhrai has not shown the court erred by denying leave to amend on the grounds that the amendment was untimely and offered without adequate explanation for delay. We therefore need not consider whether the amendment was also properly refused because the undisputed facts showed it had no merit.

DISPOSITION

The judgment is affirmed.

GUERRERO, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.