Jul 19, 2019
TENTATIVE RULINGS
LAW & MOTION CALENDAR
Wednesday, July 17, 2019, 3:00 p.m.
Courtroom 18 – Hon. Jennifer V. Dollard
3055 Cleveland Avenue, Santa Rosa
 
 
CourtCall is available for all Law & Motion appearances, EXCEPT parties in motions for claims of exemption which are mandatory appearances.   Please contact CourtCall directly at (888) 882-6878.
 
The following tentative rulings will become the ruling of the court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, YOU MUST notify the court by telephone at (707) 521-6730, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday July 16, 2019. Parties in motions for claims of exemption are exempt from this requirement.
 

 

PLEASE NOTE: The court WILL provide a court reporter for this calendar. If there are any concerns, please contact the court at the number provided above.
 
1.         MCV-240899, Alliance United Insurance Company v. Saunders
 
            Plaintiff’s unopposed motion to enforce the settlement agreement and to enter judgment in the amount of $1,289.96 is GRANTED.
 
The court notes that the plaintiff has lodged a proposed judgment. However, the court requires an order after hearing prior to executing any judgment. Plaintiff shall submit an order after hearing consistent with the above ruling.
 
           
2.         SCV-261960, Aronow v. Thomas
 
            Defendants’ motion for summary judgment is GRANTED.
 
Defendants’ evidentiary objections numbers 5 and 6 to the declaration of plaintiff are overruled. The court declines to rule on the objections to the declaration of Christopher Wimmer. (CCP §437c(q); “the court need rule only on those objections to evidence that it deems material to its disposition of the motion…”) 

Defendants’ unopposed request for judicial notice of the complaint, first amended complaint and a court ruling issued in Sonoma County Superior Court case SCV-255664 is granted. Plaintiff’s unopposed request for judicial notice is granted. The court notes that it only takes judicial notice of the fact the documents were filed or particular orders were made. The court does not take judicial notice of the truth of the matters asserted in the documents. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)
 
This is a legal malpractice action alleging the following causes of action: (1) professional negligence; (2) breach of fiduciary duty; and (3) breach of contract.
 
Defendants move for summary judgment or adjudication on the ground that all plaintiff’s claims are time-barred by the one-year statute of limitations pursuant to CCP §340.6. Plaintiff does not dispute that CCP §340.6 applies to all three causes of action but argues that the statute of limitations was tolled until defendants stopped representing him by February 9, 2017, at the earliest.[1]
 
Section 340.6, subdivision (a) sets forth the statute of limitations for legal malpractice actions. [Citation.] It provides that such a claim is timely if ‘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 omission, or four years from the date of the wrongful act or omission, whichever occurs first.’ (§ 340.6, subd. (a).)” (Genisman v. Carley (2018) 29 Cal.App.5th 45, 50.)
 
The running of the statute of limitations is tolled during the time that ‘[t]he attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.’ [Citations.] The tolling is referred to as ‘the continuous representation exception.’ [Citations.] ‘Code of Civil Procedure section 340.6 does not expressly state a standard to determine when an attorney's representation of a client regarding a specific subject matter continues or when the representation ends, and the legislative history does not explicitly address this question.’ [Citation.]” (GoTek Energy, Inc. v. SoCal IP Law Group, LLP (2016) 3 Cal.App.5th 1240, 1246.)
 
As opined in Gonzalez v. Kalu (2006) 140 Cal.App.4th 21, 30-31:
 
Absent a statutory standard to determine when an attorney's representation of a client regarding a specific subject matter ends, and consistent with the purposes of the continuing representation rule, we conclude that for purposes of Code of Civil Procedure section 340.6, subdivision (a)(2), in the event of an attorney's unilateral withdrawal or abandonment of the client, the representation ends when the client actually has or reasonably should have no expectation that the attorney will provide further legal services. [Citations.] That may occur upon the attorney's express notification to the client that the attorney will perform no further services, or, if the attorney remains silent, may be inferred from the circumstances. Absent actual notice to the client that the attorney will perform no further legal services or circumstances that reasonably should cause the client to so conclude, a client should be entitled to rely on an attorney to perform the agreed services and should not be required to interrupt the attorney-client relationship by filing a malpractice complaint. After a client has no reasonable expectation that the attorney will provide further legal services, however, the client is no longer hindered by a potential disruption of the attorney-client relationship and no longer relies on the attorney's continuing representation, so the tolling should end. To this extent and for these reasons, we conclude that continuous representation should be viewed objectively from the client's perspective…”
 
“Whether the client actually and reasonably believed that the attorney would provide further legal services regarding a specific subject matter is predominantly a question of fact for the trier of fact, but can be decided as a question of law if the undisputed facts can support only one conclusion. [Citations.]” (Gonzalez v. Kalu, supra, 140 Cal.App.4th 21, 31.)
 
Here, plaintiff’s complaint was filed on February 8, 2018 and defendants contend they ended their representation of plaintiff on January 23, 2017.Defendants rely largely on two letters they sent to plaintiff on that date. One letter identified a conflict of interest and stated that the firm could not represent plaintiff in any matters concerning disbursement of certain settlement proceeds. (Ex. K to Defendants’ Appendix of Exhibits.) It is undisputed that the other letter informed plaintiff that his accusations of legal malpractice made it “untenable” for defendants to continue its representation of plaintiff in the case. (Defendants’ Separate Statement of Undisputed Facts (“SSUF”), No. 11.) A substitution of attorney form was enclosed, which defendants requested plaintiff complete and return within two days or else they would file a motion to be relieved as counsel. Defendants also indicated in the letter that they would make plaintiff’s files “promptly available for pick up” once they received the substitution of attorney. Thomas then executed a substitution of attorney form on February 8, 2017. (Ex. N to Defendants’ Appendix of Exhibits.) Additionally, it is undisputed that defendants filed a notice of appeal on plaintiff’s behalf on January 9, 2017, but that they discussed with plaintiff hiring of an appellate attorney and facilitated interviews with appellate attorneys. (Defendants’ SSUF, Nos. 9 & 10.)
 
Plaintiff argues there are triable issues of material fact as to whether representation continued beyond January 23, 2017. Per plaintiff, he responded by email to the January 23rd letter by asserting that the “arbitrary” deadline imposed by defendants for completion of the substitution of attorney was unrealistic. (Plaintiff’s Fact No. 2.) Plaintiff declined to accept defendants’ attempted termination. (Plaintiff’s Fact No. 4.) He further indicated he was going to seek new counsel and requested a “detailed analysis of the current status of the case.” (Plaintiff’s Facts, Nos. 2&3.) Defendant Thomas offered to assist plaintiff as needed to facilitate the transition, agreed to include a summary of the case status and agreed to extend the deadline for plaintiff to seek new counsel to February 3, 2017. (Plaintiff’s Facts, Nos. 6, 8 and 9.) Plaintiff ultimately signed the substitution of attorney on February 9, 2017. (Plaintiff’s Fact No. 10.)
 
“Assisting the transition from one attorney to another is not providing assistance on the same subject matter. [Citations.]” (Shaoxing City Maolong Wuzhong Down Products, Ltd. v. Keehn & Associates, APC (2015) 238 Cal.App.4th 1031, 1039.)
 
In Shazoxing, “the undisputed evidence establishe[d] that plaintiffs' relationship with Keehn ended when Landsberg substituted in as counsel. The sole evidence of a continuing relationship after that point in time [wa]s the statement of a Keehn employee that Keehn would ‘oversee the transition’ and ‘assist’ Landsberg ‘with his work on the case.’” (Shaoxing City Maolong Wuzhong Down Products, Ltd. v. Keehn & Associates, APC, supra, 238 Cal.App.4th at p. 1039) The Shaoxing Court reasoned: “[T]he undisputed evidence–as well as counsel's concession at oral argument–establishes that Keehn provided no legal services or representation after Keehn was substituted out as counsel. It is undisputed that Keehn provided no advice to plaintiffs or to Landsberg; they performed no work for them; they sent no bills for legal services relating to ongoing representation; they never appeared for plaintiffs and never negotiated on plaintiffs' behalf; they never even spoke or communicated with Landsberg or plaintiffs regarding the pending bankruptcy case. Such acts are required for there to be a continuing attorney-client relationship. [Citations.]” (Ibid.)
 
Here, there is no evidence that defendants continued to provide further legal services to plaintiff. Defendants’ January 23rd letter was unequivocal in stating that they could no longer represent plaintiff in light of his accusations of malpractice. And, the case law is clear that facilitating the transfer of the case is not providing assistance to plaintiff on the same subject matter. “If client actually believed that firm one would continue to provide legal services by transferring its files to replacement counsel, its belief was unreasonable as a matter of law. Firm one made clear in its e-mail that it would not provide further legal services. The transfer of the files was a clerical, ministerial activity.”
(GoTek Energy, Inc. v. SoCal IP Law Group, LLP, supra, 3 Cal.App.5th 1240, 1247–1248.) Additionally, there are no facts provided regarding if or when any summary of the case status was ever delivered to plaintiff. Nor is there any argument as to why such a summary does not fall under the umbrella of facilitating the transfer of the case. Under the facts at bar, an objectively reasonable person would not have believed he was still represented by defendants.
 
Plaintiff argues defendants violated Rules of Professional Conduct, Rule 3-700 by not giving plaintiff a reasonable amount of time to employ alternative counsel and by not indicating that defendants had or would take reasonable steps to avoid reasonably foreseeable prejudice to plaintiff’s rights. Plaintiff argues a finding that defendants’ representation ended on January 23, 2017 would be tantamount to encouraging attorneys to violate their ethics obligations under the Rules of Professional Conduct. These are two different standards aimed at achieving separate policy goals improperly conflated. The question before the court in this case is only whether it would be unreasonable to rely on an ongoing attorney client relationship given a unilateral termination by the attorney for the purpose of tolling. In any event, defendants extended plaintiff’s time to file a substitution of attorney and plaintiff has provided no evidence that he was actually prejudiced by defendants’ deadline. Furthermore, plaintiff has articulated no reason why violating Rule 3-700 would undermine tolling of the statute of limitations under the continuing representation rule. Certainly attorneys can start the one-year statute running a little sooner, but plaintiffs still have an entire year from that date to bring suit.
 
Based on the foregoing, the court finds this action is time-barred as a matter of law and grants the motion.
 
The court notes that its tentative ruling was written with knowledge that plaintiff’s motion for leave to amend request for admission responses was granted and the court’s conclusions above are not based on the admission of plaintiff which is to be amended.
 
Defendants shall submit an order consistent with this ruling.
 
           
3.         SCV-263130, Big Toy Storage, LLC v. Spanier
 
Matter is dismissed.
           
 
4.         SCV-263635, M&M Services, Inc., a California corporation v. Junk in the Box
 
Defendant Junk In the Box’s motion to set aside entry of default under the mandatory relief provisions of CCP §473(b) is GRANTED. “The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (CCP §473(d).) In plaintiff’s response to the motion, plaintiff expressly waives its right to recover compensatory legal fees and costs. Therefore, no such fees and costs are awarded. Junk In the Box shall file its answer within two days of the hearing.
 
Defendant Brenden James Dean’s motion for leave to file an amended answer is GRANTED. The amended answer shall be filed within two days of the hearing.
 
 
 
 



[1] The court notes that cross-defendants Emergent LLP and Christopher Wimmer also filed opposition to this motion, but they failed to file a supporting separate statement as required under CCP §437c(b)(3). Accordingly, the court will disregard cross-defendants’ opposition. 
 
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