Case Name:   Shuler v. Stein, et al.

Case No.:       1-13-CV-242279

After full consideration of the evidence, the separate statements submitted by each party, and the authorities submitted by each party, the court makes the following rulings:

This is an action for legal malpractice.  In the first amended complaint (“FAC”), plaintiff Randal Shuler (“Plaintiff”) alleges that defendants John C. Stein (“Stein”) and The Boccardo Law Firm represented him in a personal injury action against William Jacobs (“Jacobs”), a driver that injured him in an automobile collision, and filed a complaint against Jacobs in the underlying action (Shuler v. Jacobs, Santa Clara County Super. Ct. Case No. 1-11-CV-197914 [“PI Case”]).  (FAC, ¶¶ 1-3.)   Defendants allegedly promised to “promptly, and thoroughly provide for medical evaluation and appropriate monitoring of plaintiff’s injuries, and to provide all needed medical forensic services to bring the case to trial effectively.”  (Id., ¶ 8.)  Plaintiff alleges that Defendants: (1) failed to obtain necessary MRI images; (2) delayed medical evaluations and monitoring of Plaintiff’s injuries; (3) submitted incomplete/erroneous interrogatory responses using a pre-signed verification; and (4) failed to provide complete medical records to Jacobs’ counsel, thus “hampering case evaluation.”  (Id., ¶¶ 8 & 12.)  Defendants allegedly represented Plaintiff until March 6, 2012, at which point Plaintiff was forced to represent himself; however, due to Defendants’ mishandling of the PI Case, Plaintiff lost his opportunity to present records concerning the extent of his injuries.  (Id., ¶¶ 9-10.)  Plaintiff alleges that he obtained substitute counsel, and due to the harmful delay in preparing for trial, he had to consent to settle the PI Case—which was worth at least $1.5 million—for Jacobs’ insurance policy limit of $250,000.  (Id., ¶¶ 10-11.)

Defendants move for summary judgment of Plaintiff’s claims.[1]  (See Code Civ. Proc. [“CCP”], § 437c.)

Defendants’ request for judicial notice is GRANTED to the existence of the court records, but not as to the truth of any hearsay statements contained therein or as to any matters asserted in the records that are not the result of an adversarial hearing concerning the existence or nonexistence of such facts.  (See Evid. Code, § 452, subd. (d); see also People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 [“Shamrock Foods”] [relevant court records are subject to judicial notice]; see also Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [“Lockley”] [“courts are free to take judicial notice of the existence of each document in a court file,” but “may not take judicial notice of the truth of hearsay statements”; courts may only take notice of facts in court records that are the result of an adversarial hearing that involved the question of their existence or nonexistence].)

Plaintiff’s request for judicial notice is GRANTED as to the existence of the court records, including the results reached in the order granting Stein’s motion to be relieved as counsel in the PI Case and the order denying Defendants’ first motion for summary judgment (“Prior Order”), but not as to hearsay statements or facts stated in the records that are not the result of an adversarial hearing concerning the question of the facts’ existence or nonexistence.  (See Evid. Code, § 452, subd. (d); see also Shamrock Foods, supra, at p. 422; see also Lockley, supra, at p. 882.)

As an initial matter, Plaintiff argues that this motion should be “stricken” under CCP section 437c, subdivision (f)(2) and/or CCP section 1008 because Defendants’ first motion for summary judgment was denied in the Prior Order.  This argument is unavailing.  Therefore, the Court will not strike Defendants’ motion simply because they previously filed a motion for summary judgment.

Defendants move for summary judgment of Plaintiff’s malpractice claim on the following grounds: (1) the statute of limitations is a complete defense to the claim, (2) Defendants have not breached any duty, and (3) Defendants have not caused Plaintiff’s injuries.

With respect to the statute of limitations, an action against an attorney based on the attorney’s wrongful act or omission must “be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omissions, or four years from the date of the wrongful act or omission, whichever occurs first.”  (CCP, § 340.6, subd. (a).)  That period “shall be tolled during the time that” the “attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.”  (Id., subd. (a)(2).)  “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”; as a general rule, the attorney’s representation does not end until, for example, “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.)  By Defendants’ own evidence, the court granted Defendants’ motion to be relieved as counsel in an order filed on March 9, 2012, stating that Defendants are “relieved as counsel of record” for Plaintiff “effective upon the filing of the proof of service of this signed order upon the client.”  (Order Relieving Counsel, ¶ 5(a).)  Therefore, by Defendants’ own evidence, they were Plaintiff’s counsel of record in the PI Case until at least March 9, 2012.  The initial complaint in this action was filed on March 5, 2013, which is less than one year after Defendants were relieved as counsel in the PI Case.  Therefore, Defendants have not shown sufficient evidence to meet their initial burden with respect to the statute of limitations defense.

Turning to the breach of duty element, to determine whether attorneys breached their duty of care, “the crucial inquiry is whether their advice and actions were so legally deficient when given that it demonstrates a failure to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in performing the tasks they undertake.”  (Unigard Ins. Group v. O’Flaherty & Belgum (1995) 38 Cal.App.4th 1229, 1237.)  Defendants proffer evidence that they filed the complaint in the PI Case, propounded written discovery and deposed witnesses, retained an engineer to analyze Jacobs’ vehicle’s data, and no trial date or discovery cut-off date had been set when they withdrew as counsel.  (Defendants’ Undisputed Material Fact [“UMF”] Nos. 6-13.)  However, Plaintiff’s malpractice claim is based on the allegation that Defendants undertook to arrange for Plaintiff’s medical care, but then failed to promptly schedule necessary medical evaluations and MRI studies to substantiate Plaintiff’s damages claims.  Defendants present evidence that they were retained on January 20, 2011 (Defendants’ UMF No. 6), only scheduled for Plaintiff to be seen by one physician (id. No. 13), knew that other evaluations were necessary and intended to schedule such evaluations (id. No. 14), and never actually scheduled any of the other necessary medical evaluations (id.).  Notably, they proffer no evidence indicating that they never agreed to arrange Plaintiff’s medical treatments.  Thus, Defendants have not proffered sufficient evidence to negate the breach of duty element or otherwise show that Plaintiff does not possess or cannot reasonably obtain necessary evidence to support the breach of duty element.  (See Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 334 [defendants may negate an essential element of the plaintiff’s claim]; see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-55 [defendants may proffer evidence showing that the plaintiff does not have or cannot reasonably obtain evidence necessary to establish a prima facie element of the claim].)  Therefore, Defendants have not met their initial burden with respect to the breach of duty element.

Lastly, with respect to causation, causation in a legal malpractice action means that but for the attorney’s negligence, the client would have achieved a more favorable result in the underlying action.  (See Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1528.)  Causation “is ordinarily a question of fact which cannot be resolved by summary judgment.  The issue of causation may be decided as a question of law only if, under undisputed facts, there is no room for a reasonable difference of opinion.”  (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 864, internal citations omitted.)  Defendants assert that Plaintiff became dissatisfied with their handling of his case and terminated the attorney-client relationship in December 2011; however, as discussed above, Defendants’ evidence shows that they were Plaintiff’s counsel until March 9, 2012.  In any event, Defendants present evidence that no trial date or discovery cut-off date had been set when they withdrew as counsel, and they had not taken any actions that would prevent Plaintiff from prosecuting his claims.  (Defendants’ UMF Nos. 19-22 & 26.)

Defendants also assert that Plaintiff retained new counsel in June 2012, and that attorney’s decision to issue the 998 Offer was unrelated to any supposed harm to the PI Case caused by Defendants and instead based on his own litigation strategy, and that attorney had been unable to identify any act/omission on Stein’s part that impaired Plaintiff’s ability to prepare the case for trial and maximize settlement value. (Id. Nos. 27-37.)  However, Defendants’ evidence does not address the alleged acts/omissions giving rise to Plaintiff’s claims against them, e.g., that they agreed to arrange for Plaintiff’s medical care and then failed to do so, ultimately causing Plaintiff to go nearly fourteen months with only one medical evaluation to support his alleged injuries.  Therefore, Defendants’ evidence does not negate the causation element or suggest that Plaintiff does not possess and cannot reasonably obtain necessary evidence to support this element.  Accordingly, Defendants have not presented sufficient evidence to meet their initial burden with respect to the causation element.

In light of the foregoing, Defendants’ motion for summary judgment is DENIED.

Plaintiff’s evidentiary objections lack merit and are OVERRULED.[2]

Defendants’ evidentiary objections also lack merit and are OVERRULED.

The Court will prepare the order.

[1] With their reply papers, Defendants submit a separate statement in response to Plaintiff’s separate statement.  There is no legal basis authorizing a moving party to submit a separate statement or evidence with its reply papers.  (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.)  Therefore, Court will not consider the separate statement submitted with Defendants’ reply papers.

[2] In addition, Plaintiff submits a “motion to strike” a declaration submitted by Defendants, but the “motion to strike” is not a properly noticed motion and, essentially, sets forth objections to the declaration.  The Court will not rule on an improperly noticed motion, and to the extent the arguments in the “motion to strike” may be construed as evidentiary objections, those objections lack merit and are OVERRULED.