Opinion
A130692
06-13-2012
LAVERNE N. JONES, Plaintiff and Appellant, v. JOSEPH M. MORRILL, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County
Super. Ct. No. MSC0802114)
Plaintiff Laverne N. Jones (Jones), in propria persona, appeals from the judgment entered following the trial court's grant of defendant Joseph M. Morrill's (Morrill) motion for summary judgment. Jones contends the trial court erred in concluding that her legal malpractice action is time-barred. We affirm.
BACKGROUND
In June 2007, Jones retained attorney Morrill to assist her in a conservatorship proceeding regarding her father, who suffered from dementia. Jones was having a dispute with her stepmother regarding, among other things, Jones's access to her father. On July 23, following a July 11 hearing that resulted in Jones being limited to twice weekly supervised visitation with her father, Jones and Morrill had a contentious phone call. During the call, Jones accused Morrill of overbilling her and failing to litigate the case, and she threatened to report him to the State Bar and sue him for malpractice. Jones testified in her deposition that her relationship with Morrill "officially fell apart" during that phone call.
Following the call, Morrill sent Jones a letter explaining he could no longer represent her and requesting that she execute an enclosed substitution of attorney form. He also advised her to "immediately retain" other legal counsel. Jones did not sign the substitution form and, on July 31, 2007, Morrill filed a motion to be relieved as counsel of record in the conservatorship proceeding.
Before August 15, 2007, Jones retained another attorney to represent her in the conservatorship proceeding. On August 29, the trial court granted Morrill's motion to be relieved as counsel. The order stated that Morrill "is relieved as counsel of record for client effective immediately."
Morrill's replacement, attorney Gordon Brown, testified in his deposition that he assisted Jones with the preparation of a petition filed in the conservatorship proceeding on August 15, 2007, and that he "probably" began discussing the petition with her "a few days" before the petition was filed.
The order was dated August 29 and filed on August 31, 2007, although Morrill's notice of entry of the order asserts the order was issued at the August 22 hearing on the motion. Jones agrees the order was issued on August 22.
On August 21, 2008, Jones filed her lawsuit against Morrill, asserting causes of action for declaratory relief, legal malpractice, fraud, and intentional infliction of emotional distress. In August 2010, Morrill filed a motion for summary judgment, contending, among other things, that the entire lawsuit was time-barred under the one-year statute of limitations in Code of Civil Procedure section 340.6. In response, Jones argued her action is timely because the limitations period was tolled until Morrill's motion to be relieved as counsel was granted, which was after August 21, 2007. The trial court rejected that argument and granted the motion for summary judgment, concluding, "even with the benefit of tolling for continued representation, the one-year statutory period ran by August 16, 2008, and this action filed on August 21, 2008 is time-barred as a matter of law." This appeal followed.
All undesignated section references are to the Code of Civil Procedure.
DISCUSSION
"Summary judgment 'motions are to expedite litigation and eliminate needless trials. [Citation.] They are granted "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." [Citations.]' [Citation.] [¶] A defendant meets its burden upon such a motion by showing one or more essential elements of the cause of action cannot be established, or by establishing a complete defense to the cause of action. [Citations.] Once the moving defendant has met its initial burden, the burden shifts to the plaintiff to show a triable issue of one or more material facts exists as to that cause of action or a defense thereto. [Citations.]" [¶] We review the trial court's ruling on a motion for summary judgment under the independent review standard. [Citation.]" (Laclette v. Galindo (2010) 184 Cal.App.4th 919, 925-926 (Laclette).)
The trial court concluded Jones's lawsuit is time-barred under section 340.6, subdivision (a), which provides in relevant part: "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. . . . [T]he period shall be tolled during the time that . . . (2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred." The section 340.6, subdivision (a)(2) tolling period is known as the " 'continuous representation' rule;" it "was adopted in order to 'avoid the disruption of an attorney-client relationship by a lawsuit while enabling the attorney to correct or minimize an apparent error, and to prevent an attorney from defeating a malpractice cause of action by continuing to represent the client until the statutory period has expired.' [Citation.]" (Laird v. Blacker (1992) 2 Cal.4th 606, 618 (Laird).)
In Gonzalez v. Kalu (2006) 140 Cal.App.4th 21 (Gonzalez), the Court of Appeal considered when an attorney's representation ends for purposes of the continuous representation rule. The court reasoned: "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 . . . 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." (Gonzalez, at pp. 30-31, fns. omitted; accord Laclette, supra, 184 Cal.App.4th at p. 928.)
In the present case, the trial court concluded: "[T]he undisputed facts establish that defendant Morrill[] terminated his representation of plaintiff in writing on July 23, 2007; and plaintiff retained new counsel to represent her prior to August 14, 2007. [Citation.] There is no evidence that defendant Morrill rendered any legal services beyond August 16, 2007. [Citation.] Therefore, even with the benefit of tolling for continued representation, the one-year statutory period ran by August 16, 2008, and this action filed on August 21, 2008 is time-barred as a matter of law." On appeal, Jones does not dispute those facts. She concedes Morrill informed her on July 23, 2007, that he was no longer her attorney and asserts only that Morrill continued to represent her through August 16, 2007. Neither does Jones dispute that the undisputed facts as found by the trial court are sufficient to show she actually had or reasonably should have had no expectation that Morrill would provide further legal services, at least after August 16. (Gonzalez, supra, 140 Cal.App.4th at p. 30.) Moreover, several courts have emphasized the importance of the retention of new counsel as an indication that the previous representation has ended. (See Hensley v. Caietti (1993) 13 Cal.App.4th 1165, 1172 [after the plaintiff obtained "replacement counsel . . . the die was cast and the tolling afforded under . . . section 340.6, subdivision (a)(2) ended"]; see also Truong v. Glasser (2009) 181 Cal.App.4th 102, 116-117 (Truong); Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 229.)
On August 16, 2007, Morrill billed Jones for one-tenth of an hour for "Letter/email to client." He also billed her for one-tenth of an hour for letters and/or emails on August 14 and 15, and for 1.2 hours on August 13 for "Court Appearance; ex parte." Morrill argues that those billings do not actually reflect legal representation provided to Jones for the purposes of the continued representation rule. We need not resolve that issue because, in any event, Jones does not argue that Morrill provided any representation after August 16.
Instead of disputing that the facts satisfy the Gonzalez test for termination of representation for the purposes of section 340.6, subdivision (a)(2), Jones argues that, where a motion to be relieved as counsel of record has been filed, the representation does not end for the purposes of the continuing representation rule until the trial court has granted the motion or the withdrawal is otherwise officially entered into the trial court record. In the present case, that did not occur until at the earliest August 22, 2007, when the trial court apparently granted Morrill's motion to be relieved as counsel at the hearing on the motion.
As noted previously, the order was not filed until August 31, 2007.
We decline to adopt the proposed new rule proffered by Jones, which is unsupported by the case law. In Worthington v. Rusconi (1994) 29 Cal.App.4th 1488, 1497, the court stated, " 'The rule is that, for purposes of the statute of limitations, the attorney's representation is concluded when the parties so agree, and that result does not depend upon formal termination, such as withdrawing as counsel of record.' [Citations.]" Courts in other circumstances have rejected a focus on counsel's status as official attorney of record. Thus, in Shapero v. Fliegel (1987) 191 Cal.App.3d 842, 848-849, the court stated that an attorney's failure to formally withdraw as counsel of record in a dissolution action by filing and serving a notice of withdrawal did not necessarily compel the conclusion that the representation was continuing. (Accord, Truong, supra, 181 Cal.App.4th at p. 116.) In Hensley, supra, 13 Cal.App.4th at page 1173, the court rejected a focus on the date of the client's letter of discharge, reasoning, "The period of tolling should not turn upon the fortuity of the time of delivery of notice of discharge to counsel, a matter entirely within [plaintiff's] control." Although Jones did not have control over the date withdrawal was approved by the trial court, the undisputed evidence shows that the date was a fortuity unrelated to the date of actual termination of representation. Finally, the rule proposed by Jones is unnecessary to serve the purposes of the continued representation rule in the present case. (See Laird, supra, 2 Cal.4th at p. 618.) The record shows that after July 23, 2007, there was no relationship between Jones and Morrill that would have been disrupted by the filing of a malpractice action, and, after Morrill filed his motion to be relieved as counsel and Jones retained new counsel, there was no danger that Jones would fail to file a timely action due to Morrill's status as official counsel of record. (See Gonzalez, supra, 140 Cal.App.4th at p. 31.)
Notably, a new rule focusing on the date of official withdrawal as counsel of record could present difficulty for plaintiffs in other cases because, if an attorney provides representation even after official withdrawal as counsel of record, such continued representation would arguably extend the tolling period under the current rule. (See Nielsen v. Beck (2007) 157 Cal.App.4th 1041, 1052 [tolling period continues after signing of substitution of attorney form if attorney continues to provide legal advice].)
The trial court did not err in concluding that Jones's action is time-barred under section 340.6.
Jones also contends her action should not be time-barred under theories of extrinsic fraud, equitable estoppel, and judicial estoppel. Each of the theories presupposes that Morrill represented to her or to the trial court that August 22 would be the effective date for purposes of tolling under section 340.6, subdivision (a)(2). However, Jones cites to no evidence that Morrill made any such representation.
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DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondent.
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SIMONS, Acting P.J.
We concur.
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NEEDHAM, J.
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BRUINIERS, J.