Daniels v. DeSimone

• Decision Date: 17 February 1993
• Docket Number: No. B064309,B064309
• Citation: 16 Cal.Rptr.2d 615,13 Cal.App.4th 600
• Court: California Court of Appeals Court of Appeals
• Parties: Robert DANIELS et al., Plaintiffs and Appellants, v. Salvatore DeSIMONE, Defendant and Respondent.

Page 615

16 Cal.Rptr.2d 615

13 Cal.App.4th 600

Robert DANIELS et al., Plaintiffs and Appellants, v. Salvatore DeSIMONE, Defendant and Respondent.

No. B064309.

Court of Appeal, Second District, Division 5, California.

Feb. 17, 1993.

As Modified Feb. 24 and March 11, 1993.

Paul A. deMontesquiou, McCulloch & deMontesquiou, Encino, for plaintiffs and appellants.

Haight, Brown & Bonesteel, Roy G. Weatherup, Lori R. Behar, Thomas N. Charchut, Holly M. Teel, Maureen Haight Gee, Santa Monica, for defendant and respondent.

TURNER, Presiding Justice.

I. INTRODUCTION

Plaintiffs, Robert and Mitzie Jean Daniels, appeal from a summary judgment entered against them in favor of defendant Salvatore DeSimone on an attorney malpractice action. We affirm.

II. PROCEDURAL HISTORY

Plaintiffs filed the original complaint on March 3, 1990, and named as defendants Dale D. Billips, the Law Offices of Dale D. Billips, and Patricia Ramsey. ¹ The complaint alleged that defendants negligently failed to timely serve an underlying medical malpractice and loss of consortium action within three years after the action was filed which resulted in a dismissal pursuant to Code of Civil Procedure section 583.210. ² On April 27, 1990, plaintiffs amended the complaint by designating Mr. DeSimone and the law firm of Billips & DeSimone as fictitiously named defendants pursuant to section 474.

Mr. DeSimone answered the complaint and on August 2, 1991, filed a motion for summary judgment on the grounds that he owed no duty to plaintiffs to serve the complaint because he was never their attorney and that he did not proximately cause plaintiffs' injuries. The trial court granted the motion and entered judgment in favor of Mr. DeSimone from which plaintiffs filed a timely notice of appeal.

III. FACTS

The evidence produced in connection with the summary judgment motion established that on or about February 28, 1979, Mr. DeSimone and Mr. Billips began practicing law as a partnership under the firm name of Billips & DeSimone. On February 13, 1986, Mr. Daniels had a telephone conversation with Mr. DeSimone about a claim for medical malpractice that he wished to pursue. The parties disagree as to whether Mr. Daniels was referred to the partnership or to Mr. DeSimone or Mr. Billips. In opposition to the summary judgment motion, Mr. Daniels declared he "was referred to the firm of Billips & DeSimone by an attorney who declined to represent [him]." Mr. Billips testified at his deposition that an attorney friend of plaintiffs', Hugh Sommers, referred plaintiffs to David Harney who in turn referred plaintiffs to Mr. Billips. However, Mr. Billips did not personally speak to plaintiffs. On March 4, 1986, Ms. Ramsey, who was employed as an associate of the law firm of Billips & DeSimone, wrote a letter to Mr. Daniels confirming the conversation with Mr. DeSimone. Ms. Ramsey advised Mr. Daniels that he should forward copies of his medical records to "us" for review. The letter provided in part: "This is to follow up your telephone conversation of February 13, 1986 with Mr. DeSimone. You indicated to Mr. DeSimone you would have Mr. Slotnick forward the medical records to us for our review. Please do this as soon as possible so we can review this situation and make a determination regarding our representation of you."

On May 1, 1986, during lunch, Mr. DeSimone and Mr. Billips agreed to terminate the partnership effective the same date. Plaintiffs' opposition to the summary judgment motion indicated upon the dissolution, Mr. Billips and Mr. DeSimone "each went their separate ways." Ms. Ramsey continued to work with Mr. Billips. The terms of the dissolution included an agreement that the partners would split the partnership files and share the proceeds with regard to cases "wherein a suit had been filed." As will be noted, as of May 1, 1986, no suit had yet been filed on behalf of plaintiffs. Mr. Billips testified that as of May 1, 1986, the date of the partnership dissolution, no decision had been made as to whether to file suit on behalf of plaintiffs. The case had been referred directly to Mr. Billips as distinguished from the partnership. If suit were filed, as it was, after the May 1, 1986, dissolution of the partnership, Mr. DeSimone would not recover any of the proceeds of a contingent fee. The contingent fee recovery would have solely belonged to Mr. Billips.

On June 11, 1986, after the termination of the partnership, the Law Offices of Dale D. Billips filed a complaint for personal injuries on behalf of plaintiffs entitled, Daniels v. St. Joseph's Medical Center (Super.Ct.L.A.County, No. NCC029824B). The complaint "was filed to toll the Statute of Limitations." The complaint was signed by Ms. Ramsey on behalf of the Law Offices of Dale D. Billips. After the partnership dissolution, Ms. Ramsey worked exclusively for Mr. Billips and she "handled the entire case" filed on behalf of plaintiffs. In October 1986, the Law Offices of Dale E. Billips filed a "Certificate of Reasonable and Meritorious Cause" in the case which was signed by Mr. Billips. On October 3, 1986, Ms. Ramsey sent a letter to plaintiffs on behalf of the Law Offices of Dale D. Billips. The letter provided: "Pursuant to my conversation of October 2, 1986 with Mr. Daniels, enclosed is a retainer agreement in the above-captioned matter. Please review the agreement and if you have any questions concerning it, we can discuss them at our upcoming meeting." A copy of the unsigned retainer agreement indicated that the Law Offices of Dale D. Billips would be retained to represent plaintiffs.

On June 19, 1987, Mr. Billips became ill and was hospitalized. He went to Stanford University Hospital on November 9, 1987, where he received a heart transplant. He stayed at Stanford until October 12, 1988. He did not go into the office during the entire year of 1988. His condition ultimately led to a complete abandonment of his law practice.

While Mr. Billips was in the hospital, Mr. DeSimone moved out of the office that the two had continued to share for over one and one-half years after the partnership was dissolved. When Mr. DeSimone moved, he put Mr. Billips' files in storage. Mr. DeSimone sent the bill from the storage company to Mr. Billips each month. Before the partnership was terminated, Mr. DeSimone bought a computer. Ms. Ramsey prepared a diskette for every case that came into the office. When he moved from the offices he had previously shared with Mr. Billips, Mr. DeSimone took the computer diskette which contained information relating to plaintiffs' medical malpractice action. Mr. Billips did not know anything about the Daniels diskette until April 1989. The Daniels's case file was either lost or destroyed; none of the parties knew what happened to it. Mr. Billips testified that he believed that he "signed something a while back where a whole bunch [of files] were destroyed." Mr. Billips did not inventory any of the files before he authorized their destruction.

While Mr. Billips was ill, Mr. DeSimone handled the cases that had belonged to the partnership. Mr. DeSimone did not handle nor was he asked by Mr. Billips to do any legal work on the Daniels's case. Mr. DeSimone never agreed with Mr. Billips or plaintiffs to handle the medical malpractice action. According to Mr. Billips, plaintiffs' case fell "through the cracks."

On April 4, 1989, two months before the three-year statute ran, Mr. Daniels called Mr. Billips to inquire about the medical malpractice action. Mr. Billips advised Mr. Daniels to get another attorney because he was no longer practicing law. The underlying action was subsequently dismissed for lack of service and this suit for legal malpractice followed.

IV. DISCUSSION

A. Standard of Review

A motion for summary judgment will be granted if the moving papers establish that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (§ 437c, subd. (c).) The standard for appellate review of a summary judgment motion was set forth by our Supreme Court as follows: "Summary judgment is a drastic measure that deprives the losing party of a trial on the merits. [Citation.] It should therefore be used with caution, so that it does not become a substitute for trial. [Citation.] The affidavits of the moving party should be strictly construed, and those of the opponent liberally construed. [Citation.] Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. [Citation.] [p] A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail. [Citation.] To succeed, the defendant must conclusively negate a necessary element of the plaintiff's case, and demonstrate that under no hypothesis is there a material issue of fact that requires the process of a trial." (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.) An appellate court determines de novo whether there is a genuine issue of material fact and the moving party was entitled to summary judgment as a matter of law. (Wilson v. Blue Cross of So. California (1990) 222 Cal.App.3d 660, 670, 271 Cal.Rptr. 876.)

B. There Are No Triable Issues of Material Fact

Plaintiffs argue that summary judgment was improper because triable issues of material fact remained as to whether Mr. DeSimone was liable to them for attorney malpractice because the underlying complaint was not served within three years after it was filed. The elements of a cause of action for attorney malpractice are: (1) the duty to use such skill, prudence, and diligence as other attorneys commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the attorney's negligence. (Budd v. Nixen (1971) 6 Cal.3d 195, 200...