Opinion
C052538.
2-20-2009
DANIEL E. GONZALEZ, Plaintiff and Appellant, v. BEYER, PONGRATZ & ROSEN et al., Defendants and Respondents.
Not to be Published
In plaintiff Daniel E. Gonzalezs view of the world he has been victimized by employers, other dentists, patients, parents of patients, the Board of Dental Examiners, his insurance carrier, and, in this legal malpractice action, his lawyers. He has been involved in litigation with all of them and lost, most recently when the trial court granted his lawyers motion for summary judgment. Plaintiff appears to believe that the sheer weight of the record he amasses will create triable issues. Not so.
This case is quite simple. In the underlying malpractice claim, he contends Beyer, Pongratz & Rosen; Etan Rosen; and Erik Child failed to competently represent him in four different actions. As the trial court found, however, the statute of limitations had run in two of the cases, and in the other two, plaintiff failed to present evidence sufficient to create a triable issue that, but for his lawyers negligence, he would have obtained a more favorable result. We agree with the trial court and affirm.
I
STATUTES OF LIMITATIONS
Section 340.6 of the Code of Civil Procedure sets forth the statute of limitations for legal malpractice. It provides, in pertinent part: "(a) An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall 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 omission, or four years from the date of the wrongful act or omission, whichever occurs first. In no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist:
"(1) The plaintiff has not sustained actual injury;
"(2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred;
"(3) The attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney, except that this subdivision shall toll only the four-year limitation; and [¶] . . . ."
Embroiled in the controversy swirling around defendants representation of plaintiff in numerous lawsuits, the parties entered into a tolling agreement while they attempted to resolve their disputes. The agreement provides, in pertinent part:
"1. In consideration of Claimants forbearance from commencing or instituting any action against Attorneys until the termination of this Agreement, the statute of limitations on Claimants claims shall be tolled for that period of time commencing on March 20, 2002, and ending upon the Expiration of this Agreement, as defined herein.
"[¶] . . . [¶]
"4. It is the express purpose and intent of the parties hereto to preserve all claims and all defenses which any party hereto had or could have asserted as of March 20, 2002. The parties agree that nothing in this agreement shall operate to revive or reinstate any claim which would be barred by any applicable statute of limitations . . . ."
Plaintiff insists that his causes of action against his defendant lawyers were all timely under the terms of the tolling agreement because they continued to represent him and/or they fraudulently concealed the facts or omissions constituting the wrongful acts for which he attempts to hold them accountable. Although plaintiffs ardent belief he has suffered a series of injustices is palpable, he fails to deliver the evidence he has the burden to produce. The trial court found that in each case, he failed to create a triable issue of material fact by introducing admissible and authenticated evidence to rebut defendants initial showing. Our review is guided by some basic principles.
A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. We review the trial courts decision de novo, considering all the evidence the parties offered in connection with the motion, except that which the court properly excluded, and the uncontradicted inferences the evidence reasonably supports. In the trial court, once a defendant has shown that one or more elements of the plaintiffs cause of action cannot be established, the burden shifts to the plaintiff to show the existence of a triable issue. To meet that burden, the plaintiff may not rely upon the mere allegations or denials in his pleadings but, instead, must set forth the specific facts showing that a triable issue of material fact exists as to that cause of action. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.)
Affidavits in opposition to summary judgment need only show the existence of an issue of fact and are not required to persuade the trier of fact as to the proper disposition of that issue. (Johnson v. Canadian Transport Co. (1976) 54 Cal.App.3d 827, 834.) The facts alleged in the affidavits of a party opposing summary judgment must be accepted as true, and such affidavits, to be sufficient, need not necessarily be composed wholly of evidentiary facts. (Blaustein v. Burton (1970) 9 Cal.App.3d 161, 175-176.)
On the other hand, although affidavits of the opposing party are to be liberally construed in its favor, summary judgment will stand where the supporting affidavits state facts sufficient to sustain a judgment and the counteraffidavits do not proffer competent and sufficient evidence to present a triable issue of fact. (McCunn v. California Teachers Assn. (1970) 3 Cal.App.3d 956, 964.) A party cannot avoid summary judgment based on mere speculation and conjecture, but instead must produce admissible evidence. (Pacific Gas & Electric Co. v. City of Oakland (2002) 103 Cal.App.4th 364, 371.) Opinions or conclusions in an opposing partys declarations are not sufficient to create a triable issue of fact. (Barisich v. Lewis (1990) 226 Cal.App.3d 12, 20-21.)
We summarize the evidentiary deficiencies in each case.
Gonzalez v. Kutschbach
In January 1995 defendant Etan Rosen filed a first amended complaint on behalf of plaintiff against plaintiffs employer, Dr. Richard Kutschbach. (Gonzalez v. Kutschbach (Super. Ct. Sacramento County, filed Nov. 21, 1994, No. 544304 (Kutschbach ).) On February 27, 1995, Kutschbach served a notice of bankruptcy and the imposition of a stay. In March, Rosen filed a proof of claim to preserve plaintiffs interest. In December 1996 the bankruptcy court trustee issued a report indicating there would be no distribution because Kutschbach had no funds available from the estate for distribution to creditors. On February 10, 1997, plaintiff wrote to Rosen that "allowing the discharge to proceed without objection is a mistake." On February 21, 1997, the bankruptcy court discharged plaintiffs claim against Kutschbach. Plaintiff was on the mailing list of creditors and was sent notices directly, which he forwarded to his attorneys.
The trial court concluded: "If plaintiff was damaged by the discharge, it occurred at that time. Thus, no later than February 21, 1997, plaintiff had been injured and he was at least suspicious that his `injury was caused by wrongdoing. Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 110 [sic]. The one year limitation period of section 340.6 began to run at that time. Even if it had not, the four year limitation period would have expired no later than February 21, 2001, more than one year prior to the tolling agreement date. Defendants showing is sufficient to shift to plaintiff the burden of demonstrating the existence of a triable issue of material fact. He fails to do so."
Relying on Laird v. Blacker (1992) 2 Cal.4th 606 (Laird ), plaintiff asserts the statute of limitations did not begin to run in February 1997 because he had not suffered an actual injury when the bankruptcy court discharged his claim. He seems to argue that the discharge was not an "actual injury" under Code of Civil Procedure section 340.6 because no adverse judgment had been entered. He misunderstands Laird. In Laird, the issue was "whether the one-year statute of limitations for attorney malpractice actions under Code of Civil Procedure section 340.6, subdivision (a) . . . is tolled during the time the client appeals from the underlying judgment on which the claim of malpractice is based." (Laird, at p. 608.) The Supreme Court recognized that "the focus of section 340.6 is on discovery of the malpractice and actual injury, not success on appeal or proof of the total amount of monetary damages suffered by the former client." (Laird, at p. 614.) The court held the statute of limitations is not tolled pending an appeal so as not to "allow clients, with knowledge that they have suffered actual injury, unilaterally to control the commencement of the statute of limitations and hence undermine the legislative goal of resolving cases while the evidence is fresh, witnesses are available, and memories have not faded." (Id. at p. 618.)
It is true that the court in Laird used the entry of adverse judgment or final order of dismissal as the trigger for the commencement of the statute of limitations. But a discharge in bankruptcy is analogous to a final order of dismissal. Once the debtor is discharged, the plaintiff has suffered the type of actual injury encompassed by the statute.
Plaintiff insists Rosen could and should have requested a further determination by the bankruptcy court that his claim was not subject to discharge based on one of the grounds set forth in title 11 United States Code section 523, subdivision (a). We conclude that such a further determination would be similar to the appeal pursued in Laird. Like an appeal, the request for a further determination did not postpone the actual injury plaintiff sustained as explained by the court in Laird, and consequently, it did not toll the running of the statute. Simply put, plaintiff sustained the injury when his claim against Kutschbach was discharged in bankruptcy in February 1997.
Plaintiff does not contend he was unaware of the discharge in 1997. And indeed, he had complained to his lawyer in writing that it would be a mistake to permit the discharge. Nevertheless, he asserts the statute of limitations was tolled because his lawyers continued to represent him.
Code of Civil Procedure section 340.6 explicitly tolls the running of the statute of limitations only if "[t]he attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred." There is no question the defendant firm continued to represent plaintiff in a number of legal matters after the court issued its order in the Kutschbach bankruptcy. The question, however, is whether plaintiff presented sufficient evidence to create a triable issue of material fact that Rosen continued to perform work for him on the Kutschbach bankruptcy. In his opposition to the motion for summary judgment, plaintiff asserts that Rosen had verbally advised him he was "`continuing to proceed with collection because the proof of claim is filed or something similar to that."
Plaintiff fails to appreciate his evidentiary burden and attempts to foist his appellate burden on us. Defendants urged the trial court not to consider plaintiffs opposition to the motion for summary judgment because it was late and incomplete. Defendants also lodged a meaty list of objections to the admissibility and authenticity of much of the delinquent evidence. The trial court sustained defendants objections in part. Without any legal argument or citation to the record, plaintiff summarily suggests, "[T]his court is competent to reconsider these objections as part of its [sic] consideration of the pleadings filed in this matter relative to Defendants Motion for Summary Judgment." While plaintiffs failure to abide by the rules is a persistent theme in this litigation, we will not consider issues that are not properly briefed.
This leaves plaintiff in quite a pickle. The trial court sustained defendants objection that most of the exhibits attached to plaintiffs separate statement of material facts were inadmissible because they were not properly authenticated. Defendants argued that plaintiffs separate statement "bears no attestation under penalty of perjury (Code Civ.Proc. §2015.5), nor does it expressly demonstrate Plaintiffs personal knowledge or his competency to testify to the matters stated, or set forth admissible evidence. (CCP §437c(d))" We therefore cannot consider any references to the exhibits encompassed by the courts evidentiary ruling, which, as relevant here, include letters he wrote.
Defendants make the threshold showing that plaintiff sustained damage by their alleged negligence at least by February 21, 1997, when the bankruptcy court discharged his claim. We are then left with plaintiffs bald assertion that Rosen told him he was continuing to pursue collection. But that assertion is not supported by admissible evidence. Plaintiff has not cited to any correspondence by Rosen or billing by him to demonstrate he was continuing to work on a case in which plaintiff had been discharged. We are left only with plaintiffs self-serving and uncorroborated declaration that Rosen continued to represent him in the matter. A "genuine issue" is not created by uncorroborated and self-serving testimony. (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433; Villiarimo v. Aloha Island Air, Inc. (9th Cir. 2002) 281 F.3d 1054, 1061.) In the absence of some shred of corroborating evidence that Rosen continued to represent him in the Kutschbach action, the statute was not tolled and plaintiff was required to file the action within the four-year time frame, or by February 21, 2001. The tolling agreement did not take effect for another year. Thus, as the trial court concluded, the statute had run years before he filed his belated malpractice claim as to the Kutschbach case.
Nor do we accept his excuse of fraud. Although he argues the opinion letter by a bankruptcy lawyer is evidence of an egregious cover-up, in fact the letter did not involve the Kutschbach case at all. Again, the trial court was right to dismiss the unsupported allegation of fraud as a means to toll the statute. Evidence, not allegations, creates triable issues of fact.
Gonzalez v. Board of Dental Examiners
In December 1998 plaintiff retained Erik Child, one of Rosens associates, to file a petition for a writ of mandate to challenge the findings of the Board of Dental Examiners. (Gonzalez v. Board of Dental Examiners (Super. Ct. Sacramento County, filed Dec. 11, 1998, No. 98CS03258.) Rosen was never personally involved in plaintiffs representation in this matter. On October 5, 1999, the court sustained the demurrer of the Board of Dental Examiners because plaintiffs writ petition was not filed within the limitations period. On December 3, 1999, Child filed a declaration in support of plaintiffs motion for reconsideration and then withdrew from the case. The court accepted his withdrawal.
Plaintiff contends Child was negligent by failing to inform the court he had filed an earlier petition for writ that would have satisfied the statute of limitations. The trial court rejected his argument. The court ruled: "Plaintiff was aware of Childs alleged wrongdoing, however, no later than December 3, 1999, the date of Childs declaration in support of plaintiffs motion for reconsideration. Plaintiff had one year from that date to file a legal action for professional negligence. Defendants showing is sufficient to shift to plaintiff the burden of demonstrating the existence of a triable issue of material fact. He fails to do so. Defendants representation of plaintiff in other matters, even though all were ultimately related to plaintiffs dental practice, is not sufficient to demonstrate further representation in this distinct legal matter."
Plaintiff rejects the contentions of defendants law firm and attorney Rosen that they did not represent him in this matter. He would hold them vicariously liable for the alleged negligence of Erik Child, an associate of the firm. We need not resolve this issue because, as we explain below, the statute of limitations bars the claim against Child or any of the members of the law firm.
Plaintiff is dismissive of the language and purpose of Code of Civil Procedure section 340.6. "Section 340.6, subdivision (a), states that `in no event shall the prescriptive period be tolled except under those circumstances specified in the statute. Thus, the Legislature expressly intended to disallow tolling under any circumstances not enumerated in the statute." (Laird, supra, 2 Cal.4th at p. 618.) "`[S]ection 340.6 reflects the balance the Legislature struck between a plaintiffs interest in pursuing a meritorious claim and the public policy interests in prompt assertion of known claims. The courts may not shift that balance by devising expedients that extend or toll the limitations period. The Legislature expressly disallowed tolling under any circumstances not stated in the statute. [Citations.]" (Beal Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 512.)
The trial court recognized that the statute was tolled where the lawyer continued to represent the client in the same "specific subject matter" in which the negligence occurred. (Code Civ. Proc., § 340.6, subd. (a)(2).) "The purpose of tolling during continued representation is twofold: First, it is to `"avoid the disruption of an attorney-client relationship by a lawsuit while enabling the attorney to correct or minimize an apparent error, and [second] to prevent an attorney from defeating a malpractice cause of action by continuing to represent the client until the statutory period has expired." [Citations.]" (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1199-1200.)
Plaintiff fails to produce admissible evidence that Erik Child continued to represent him after he withdrew from the case. Nor does he suggest that Rosen or any other lawyer at the firm continued to represent him in the same specific subject matter. The fact that the law firm represented him in his other legal troubles does not provide us the opening to toll the statute for, as the courts have clearly stated, we are constrained by the express language of the tolling statute. We are not at liberty to expand or contract the time within which a plaintiff must file his malpractice claim. Once again, plaintiff simply failed to create a triable issue of material fact that the statute of limitations had not expired.
II
CAUSATION
Gonzalez v. Penn Mutual Life Insurance Co.
Plaintiff filed a bad faith action against his insurance company. (Gonzalez v. Penn Mutual Life Insurance Co. (Super. Ct. Sacramento County, filed Mar. 9, 1999, No. 99AS01315.) Defendant Rosen withdrew from the case seven months before a federal court granted the insurers motion for summary judgment. Because the "uncontroverted evidence" demonstrated plaintiff had misrepresented that he was practicing full time, the magistrate held the insurer was entitled to rescission of the contract and granted its motion for summary judgment.
"In a clients action against an attorney for legal malpractice, the client must prove, among other things, that the attorneys negligent acts or omissions caused the client to suffer some financial harm or loss." (Viner v. Sweet (2003) 30 Cal.4th 1232, 1235.) Again, the trial court found that plaintiff "fail[ed] to present admissible evidence demonstrating that absent defendants alleged errors, e.g. `failed to initiate proceedings he might have obtained a different result at trial." As a result, he loses.
Plaintiffs misrepresentation trumped any negligence by his lawyer. He lost on the merits, and his lawyers actions or inactions were irrelevant. Because he did not produce any evidence to create a triable issue of material fact regarding causation, the trial court properly granted summary judgment on the causes of action against his insurer.
Gonzalez v. Aubrey
This brings us to the last case and the one with which we have particular familiarity, having affirmed the judgment in a 2001 appeal. As we wrote then, "Defendant James Aubrey, based in part on information he was given by two dental colleagues, defendants Leo Townsend and Harry Chin, wrote a letter to the Board of Dental Examiners explaining two mothers had reported that plaintiff Daniel Gonzalez had molested their children and that female employees had complained he had sexually harassed them. Because of this letter, Gonzalez sued his colleagues for defamation, emotional distress, and business torts. Townsends and Aubreys motions to strike pursuant to the anti-SLAPP (strategic lawsuit against public participation) suit statute were granted and they were awarded attorney fees. (Code Civ. Proc., § 425.16.)" (Gonzalez v. Aubrey (May 15, 2001, C034326) [nonpub. opn.].)
Plaintiff now claims Rosens representation throughout the trial and appeal of this case constitutes malpractice primarily because he failed to offer sufficient evidence to avoid summary judgment. We explained: "Based on the moving and opposing papers, including the declarations submitted by the parties, we see no possibility that plaintiff could prevail on the merits. The very purpose of defendants conversations and Aubreys letter was to notify the Board of information that called into question plaintiffs qualifications, fitness, and character. Because the communications fall within the purview of both Civil Code sections 47 and 43.8, defendants have an absolute defense to plaintiffs defamation claim. Neither good faith nor reasonableness in making a report must be shown." (Gonzales v. Aubrey, supra, C034326.)
Plaintiffs opposition to the summary judgment in the malpractice case is as inadequate as the opposition he offered in the SLAPP suit. We explained in the earlier appeal that "[d]efendants statements are absolutely privileged under sections 43.8 and 47 of the Civil Code." (Gonzalez v. Aubrey, supra, C034326.) Yet plaintiff has failed to present evidence or any legal authority to overcome the absolute privilege. He alludes to the facts that he had hired a private investigator and that Rosen had failed to depose any witnesses. The investigators letter, attached as an exhibit to his declaration, includes only a vague reference to an interview he conducted that does nothing to rebut the privilege. But more importantly, the court ruled it was inadmissible. In plaintiffs opposition to the motion for summary judgment, he did not include declarations by anyone else that would have established a triable issue of material fact to overcome the absolute privilege.
Nor does he explain what type of evidence he believes can legally defeat an absolute privilege. Rather, he cites two cases, Laffer v. Levinson, Miller, Jacobs & Phillips (1995) 34 Cal.App.4th 117 and Ascherman v. San Francisco Medical Society (1974) 39 Cal.App.3d 623, both of which involved a qualified, not an absolute, privilege.
Thus the trial court properly granted the summary judgment. We agree, as the trial court expressly stated, "Plaintiff fails to present admissible evidence demonstrating that absent defendants alleged errors, e.g. `failure to conduct proper and adequate discovery he might have obtained a different result either at trial or on appeal." Since plaintiff failed to carry his burden of creating a triable issue of fact regarding causation, defendants are entitled to judgment as a matter of law.
DISPOSITION
The judgment is affirmed. Defendants shall recover costs on appeal.
We concur:
BLEASE, Acting P. J.
SIMS, J. --------------- Notes: Plaintiff alludes to letters written by Child in May 1999 as evidence of his representation of plaintiff in this matter. First, we point out that the court ruled these exhibits were inadmissible. Second, he did not withdraw until December 1999, and therefore, these letters do not demonstrate Child continued to represent him in the administrative matter after he withdrew.