2017-00219526-CU-BC

Patricia Gilberg vs. Abir, Cohen, Treyzon, Salo, LLP

Nature of Proceeding: Motion to Stay Action

Filed By: Goodman, Cynthia

The motion of Defendants Abir Cohen Treyzon Salo LLP and Federico C. Sayre (collectively “Defendants”) to stay the action is DENIED.

The parties’ requests for judicial notice are GRANTED.

This is a legal malpractice action. The plaintiff is Patricia Gilberg (Gilberg). In her current complaint, Gilberg alleges Defendants represented her in a personal injury case against the City of Sacramento (City), which she intended to pursue on a theory of dangerous condition of public property. Gilberg allegedly was injured while crossing in an unmarked City crosswalk. Her personal injury case was Sacramento County Superior Court Case No. 2016-196124 (“Gilberg’s personal injury case”). According to Gilberg, she lost her claims against the City because Defendants failed to comply with the claim-presentation requirements in the Government Claims Act. This malpractice action followed.

In Sacramento County Superior Court Case No. 2016-201755, Gilberg’s minor children Andre and Steven Gilberg (the “minors”) are suing the City for their own injuries allegedly received while inside the unmarked crosswalk. Gilberg is the guardian ad litem in that case, but she is not advancing her own legal claims.

Defendants move the court to stay this malpractice case so that the issue whether there was a dangerous condition of public property can be resolved in the minors’ case first. The parties dispute whether Gilberg, by virtue of her role as guardian ad litem in the minors’ case, could be collaterally estopped to litigate that issue in this case if it were determined adversely to the minors’ first. Assuming collateral estoppel would apply, the parties also dispute whether Gilberg would be able to prove any damages in this case. The court does not resolve these disputes.

The motion is denied because (1) it is predicated on the assumption the minors’ case will be resolved on the merits and (2) the minors’ case has not even been given a trial date. An order staying Gilberg’s case could yield a delay of several months (or more) without any determination in the minors’ case that the crosswalk was or was not a dangerous condition of public property. The court will not enter a stay under such circumstances.

The court need not rule and does not rule on Defendants’ objections to evidence.