Carlton v. Quint

• Decision Date: 14 January 2000
• Citation: Carlton v. Quint, 91 Cal.Rptr.2d 844, 77 Cal.App.4th 690 (Cal. App. 2000)
• Parties: (Cal.App. 2 Dist. 2000) JACK A. CARLTON, Individually and as Administrator, etc., Plaintiff and Appellant, v. RICHARD L. QUINT et al., Defendants and Respondents. B119887 Filed
• Court: California Court of Appeals

91 Cal.Rptr.2d 844 (Cal.App. 2 Dist. 2000)

JACK A. CARLTON, Individually and as Administrator, etc Plaintiff and Appellant, v. RICHARD L. QUINT et al., Defendants and Respondents.

B119887

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT DIVISION THREE

Filed 1/14/00

APPEAL from a judgment of the Superior Court of Los Angeles County.

Robert T. Altman, Judge. Affirmed.

(Super. Ct. No. SC002408)

Law Offices of Kim D. McGuire and Kim D. McGuire for Plaintiff and Appellant.

Haight, Brown & Bonesteel, L.L.P., Rita Gunasekaran and Stephen M. Caine for Defendants and Respondents.

CERTIFIED FOR PUBLICATION

SCHNEIDER, J.^*

Plaintiff and appellant Jack A. Carlton, individually and as the administrator of the estate of Elizabeth A. Carlton,¹ appeals from a summary judgment granted in favor of defendant and respondent Richard L. Quint and his professional corporation.²

Carlton claims the judgment must be reversed because he was not properly served with the motion and did not receive proper notice of the summary judgment hearing. He also contends there is a triable issue of material fact as to every element of his legal malpractice cause of action against Quint. We conclude Carlton's claims that he was not properly served and did not receive proper notice, given the facts of this case, is without merit and that the trial court properly granted summary judgment in favor of Quint.

FACTUAL AND PROCEDURAL BACKGROUND

This case has, to say the least, a tortured history that spans almost 20 years. Based on the manner in which Carlton opposed Quint's motion for summary judgment, it is unnecessary to examine that entire history in microscopic detail. Rather, a sufficient understanding of the facts of this case can be gleaned by examining Quint's Separate Statement of Material Facts, not one of which was disputed by Carlton in his Separate Statement. (Italics added.)

The facts set forth in Quint's Separate Statement are as follows:

"1. On July 18, 1996 [sic], Jack A. Carlton and Elizabeth Carlton ('plaintiffs') in pro per filed a legal malpractice action against Tyre Kamins Katz & Granof ('TKKG') styled Jack and Elizabeth Carlton v. Tyre, Kamins, Katz & Granof, a California corporation, Robert C. Aronoff, Peter Appleton, Donald S. Simons and DOES 1 through 100, inclusive, LASC No. WEC 10 4945. ('the [sic] West District Action')." (Original italics.) Although Carlton disputed this allegation, it is clear the dispute related to a non-material typographical error. Specifically, although Quint's undisputed fact asserted that the Carltons filed their malpractice action on July 18, 1996, in fact the action was filed on July 18, 1986.

"2. The plaintiffs requested the West District Action filing be kept secret pursuant to C.C.P. 482.05." Carlton did not dispute this fact.

"3. Plaintiffs allege that Richard L. Quint, an individual, and Richard L. Quint, a professional corporation, ('defendants') were retained as legal counsel 'on or about May 11, 1988', twenty-two months after the filing of the West District Action Complaint." This fact was not disputed by Carlton.

"4. Plaintiffs filed a cross-complaint alleging identical causes of action as set forth in the West District Action against TKK&G on or about June 7, 1988 in Case No. C682757, in response to TKK&G's fee complaint against plaintiffs in the Central District (the 'Central District Action')." This fact was not disputed by Carlton.

"5. The cross-complaint in the Central District Action was served on TKK&G on June 6, 1988." This fact was not disputed by Carlton.

"6. The cross-[complaint] in the Central District Action was transferred to the West District on December 7, 1988." This fact was not disputed by Carlton.

"7. Defendants, on behalf of plaintiffs, filed an at-issue memorandum on the cross-[complaint] to the Central District Action on May 11, 1989." This fact was not disputed by Carlton.

"8. Defendants, on behalf of plaintiffs, filed an at-issue memorandum in the West District Action on May 19, 1989." This fact was not disputed by Carlton.

"9. The West District Action was dismissed August 18, 1989." This fact was not disputed by Carlton.

"10. Defendants' Motion to be Relieved as Attorney of Record in the Central District action was granted September 11, 1989." This fact was not disputed by Carlton.

"11. A Status and Trial Setting Conference was set for September 29, 1989 in the Central District Action." This fact was not disputed by Carlton.

"12. Plaintiffs, in pro per, request for a continuance was granted on September 29, 1989." (Original italics.) This fact was not disputed by Carlton.

"13. Plaintiffs failed to appear at the Trial Setting Conference on December 1, 1989." This fact was not disputed by Carlton.

"14. The court in the Central District action, based upon plaintiffs' failure to appear at the Trial Setting Conference, issued an order striking the at-issue memorandum." This fact was not disputed by Carlton.

"15. Albert Vogel, Esq. ('Vogel') substituted in as plaintiffs' counsel in the Central District Action on September 12, 1990, twelve months after defendants' court-sanctioned withdrawal." This fact was not disputed by Carlton.

"16. Plaintiffs filed a new at-issue memorandum in the Central District action on April 5, 1991, six months after Mr. Vogel was retained." This fact was not disputed by Carlton.

"17. A trial date was set in the Central District Action for May 4, 1992." This fact was not disputed by Carlton.

"18. Vogel substituted out as counsel in the Central District Action on August 28, 1991, to be succeeded by Jack Carlton, in pro per." (Original italics.) This fact was not disputed by Carlton.

"19. Phillip Putnam, Esq. substituted in as counsel in the Central District Action on February 7, 1992, six months after Mr. Vogel's withdrawal." This fact was not disputed by Carlton.

"20. On April 2, 1992, Putnam substituted out as counsel for Jack A. Carlton, who then proceeded in pro per." (Original italics.) This fact was not disputed by Carlton.

"21. On April 27, 1992, plaintiffs in the Central District action settled the case for $2,000,000." This fact was not disputed by Carlton.

In addition to the foregoing, Carlton added the additional fact that it was Quint's failure to serve the summons in the West District that caused the case to be dismissed. This assertion is supported by no reference to the record.

Neither The Method Of Service Nor The Notice Of The Summary Judgment Hearing Requires Reversal Of The Judgment³

The hearing on Quint's motion for summary judgment was held on January 23, 1998. Carlton claims the motion was not served twenty-eight days before the hearing, as required by Code of Civil Procedure section 437c, subdivision (a). He also claims the proof of service was inadequate (because it did not reveal on whom, where, and when the summary judgment documents were served). He further claims the service could not have been made on December 26, 1998 [sic]⁴ (the date specified in the proof of service) because he was out of California on that date and at all times between December 16, 1997 and January 2, 1998. None of these claims has merit. The trial court found that "service was properly effectuated" in this matter. Although the basis of the court's conclusion is not stated in the record, it may be that the court simply did not believe Carlton's claim that he was out of the state on December 26, 1997. If Carlton was served on December 26, 1997, the statutory mandate that service be made twenty-eight days before the summary judgment hearing was satisfied, given the fact the hearing was held on January 23, 1998 -- twenty-eight days after service.

Even if Carlton was not properly served on December 26, 1997, such service does not, under the facts of this case, require reversal of the judgment. The same is true with respect to any alleged defect in the proof of service.⁵

The record in this case reveals that, his claim of inadequate notice and improper service notwithstanding, Carlton filed an opposition to the motion for summary judgment eight days before the hearing. Moreover, Carlton appeared and argued at the summary judgment hearing. At no time did he request a continuance of the summary judgment hearing or contend he was prejudiced by inadequate notice or service. He simply stated that service had not been made in compliance with Code of Civil Procedure section 1011.

"It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. (Citations.) This rule applies even when no notice was given at all. (Citations.) Accordingly, a party who appears and contests a motion in the court below cannot object on appeal or by seeking extraordinary relief in the appellate court that he had no notice of the motion or that the notice was insufficient or defective." (Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930; see also Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7-8.)

In De Luca v. Board of Supervisors (1955) 134 Cal.App.2d 606, 609, the court stated that the "general rule is that one who has been notified to attend a certain proceeding and does do so, cannot be heard to complain of alleged insufficiency of the notice; it has in such instance served its purpose. This rule applies to one who appears in a lawsuit after defective service of process upon him (citation), to one who responds to a notice of motion without adequate notice (citation)."

In this case, as indicated, despite his claim of inadequate service and notice in his opposition to the motion and at the summary judgment hearing, Carlton did file an opposition to the motion, appeared and argued at the hearing, never requested a continuance of the hearing and never claimed prejudice by reason of insufficient notice or service. Under these circumstances, we conclude Carlton waived...