Gonzalez v. Kalu

• Decision Date: 02 June 2006
• Docket Number: No. B183467.,B183467.
• Court: California Court of Appeals Court of Appeals
• Parties: Gabriela GONZALEZ, Plaintiff and Appellant, v. Emelike I. KALU, Defendant and Respondent.

43 Cal.Rptr.3d 866

140 Cal.App.4th 21

Gabriela GONZALEZ, Plaintiff and Appellant, v. Emelike I. KALU, Defendant and Respondent.

No. B183467.

Court of Appeal, Second District, Division 3.

June 2, 2006.

The Younger Law Firm and Robert J. Younger, Santa Ana, for Plaintiff and Appellant.

Blumberg Law Corporation and Ave Buchwald, Long Beach, for Defendant and Respondent.

CROSKEY, J.

Gabriela Gonzalez appeals a summary judgment in a legal malpractice action based on the statute of limitations, Code of Civil Procedure section 340.6. After filing an administrative complaint against her employer with the Department of Fair Employment and Housing (DFEH) and telling Gonzalez that the case would take a very long time and that he would call her or send her a letter, Emelike I. Kalu had no contact with Gonzalez for almost three years. Gonzalez contends the limitations period was tolled or did not commence during the time Kalu failed to communicate with her. We conclude that there are triable issues of fact as to whether Kalu continued to represent Gonzalez during that time, which would toll the limitations period, and whether such "continuing representation" was for a period sufficient to make her action timely. We therefore will reverse the summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Factual Background

Gonzalez worked for a building maintenance company as a cleaner in a food court. She hired Kalu on June 2, 2000, to represent her in a claim against her employer in connection with allegations of sexual harassment by a fellow employee. Kalu sent a letter to the employer on June 6, 2000, stating that the employer was legally responsible for the alleged harassment. The letter demanded a settlement and stated that if the employer failed to settle the matter, Gonzalez would file claims with the appropriate federal and state administrative agencies and proceed to litigation. The letter warned the employer not to retaliate by terminating Gonzalez's employment. By the end of the month, Gonzalez told Kalu that she had been fired.

Kalu filed an administrative complaint with the DFEH on July 31, 2000, alleging sexual harassment only.¹ He sent a letter to Gonzalez's former employer that same day stating that her discharge was an act of retaliation, that he had requested a right-to-sue letter, and that upon receipt of a right-to-sue letter he would sue the employer for sexual harassment and wrongful termination. According to Gonzalez, Kalu or someone in his office told her that same day "that the case was going to take very long, and they were going to call me or send me a letter."

Gonzalez maintains that she did not hear from Kalu and did not attempt to contact him from July 31, 2000, until June 2003, when she visited his office to pick up her file for purposes of separate litigation against her former employer and first learned that Kalu was not prosecuting her case.² She maintains that Kalu never informed her before June 2003 that he would not prosecute the matter further. According to Kalu, he orally informed Gonzalez at some time that he would not file a lawsuit on her behalf. Kalu maintains that Gonzalez agreed to drop the case if no settlement was forthcoming and that his last conversation with her before she picked up the file in June 2003 was in December 2000. Although Kalu's usual practice was to advise a client in writing upon his withdrawal from representation, there is no evidence of such a writing in this case.

2. Trial Court Proceedings

Gonzalez filed a complaint against Kalu in the superior court on January 23, 2004. She alleges in the complaint that she retained Kalu to represent her in an action for sexual harassment, that Kalu failed to adequately investigate and prosecute the case, and that he failed to commence a civil action within the one-year limitations period. She alleges counts for legal malpractice, breach of fiduciary duty, and breach of contract.

Kalu moved for summary judgment based on Code of Civil Procedure section 340.6 in December 2004. The sole ground for the motion was that Gonzalez in the exercise of reasonable diligence should have discovered more than one year before she filed her complaint that Kalu had failed to timely file a complaint for sexual harassment in the superior court. Kalu argued that his failure to communicate with Gonzalez after July 31, 2000, despite his purported promise to call her or send her a letter, should have alerted Gonzalez that he had not prosecuted her case and should have caused her to discover before January 23, 2003, that he had not commenced a civil action.

Gonzalez argued in opposition that reasonable minds could differ as to when she reasonably should have discovered Kalu's failure to file a complaint in the superior court. She also argued that in light of Kalu's statement on July 31, 2000, that the case would take "very long" and that he would call her or send her a letter, and his failure to inform her that he was withdrawing from representation and would not commence a civil action, he continued to represent her for purposes of tolling the limitations period under Code of Civil Procedure section 340.6, subdivision (a)(2).

The court granted the motion. The order granting the motion stated in pertinent part, "plaintiff contends that she had retained defendant Emelike I. Kalu, an attorney, to file a complaint against her employer; that he had failed to do so within the applicable one-year period; and that her last contact with defendant Emelike I. Kalu was in July 2000 when she was told that she would be receiving a call or letter from him[.] ... [R]easonable persons cannot differ: the one-year period in which plaintiff could have filed suit against defendant Emelike I. Kalu had expired by the time plaintiff commenced this action on January 23, 2004."

Gonzalez moved for a new trial arguing that the limitations period was tolled during the time she reasonably believed that Kalu continued to represent her, and that her failure to discover before June 2003 that Kalu had not commenced a civil action was reasonable. The court denied the motion stating, "it is unreasonable that after almost three years of noncommunication, the plaintiff would believe that her case was still being pursued despite a total lack of communication from the defendant," and stating that Gonzalez could have simply called Kalu's office to inquire whether her case was still active.

CONTENTIONS

Gonzalez contends her complaint was timely because (1) the limitations period was tolled during the time she reasonably believed that Kalu continued to represent her; and (2) her failure to discover before June 2003 that Kalu had not commenced a civil action was reasonable.

DISCUSSION

1. Standard of Review

A party is entitled to summary judgment only if there is no triable issue of material fact and the party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment must show that one or more elements of the plaintiff's cause of action cannot be established or that there is a complete defense. (Id., subd. (p)(2).) If the defendant meets this burden, the burden shifts to the plaintiff to set forth "specific facts" showing that a triable issue of material fact exists. (Ibid.) We review the trial court's ruling de novo, liberally construing the evidence in favor of the opposing party and resolving all doubts concerning the evidence in favor of the opposing party. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460, 30 Cal.Rptr.3d 797, 115 P.3d 77.)

2. Code of Civil Procedure Section 340.6 and Continuous Representation

Code of Civil Procedure section 340.6 states that an action against an attorney for professional malpractice, other than actual fraud, must be commenced within one year after the plaintiff actually discovered or reasonably should have discovered the facts constituting the wrongful act or omission, or within four years after the wrongful act or omission, whichever is earlier. (Id., subd. (a).) The limitations period is tolled, however, if any of the statutory bases for tolling applies.³ (Ibid.)

The limitations period is tolled while the attorney continues to represent the plaintiff regarding the same specific subject matter. (Code Civ. Proc., § 340.6, subd. (a)(2).) The period is tolled even if the client is aware of the attorney's negligence. (O'Neill v. Tichy (1993) 19 Cal.App.4th 114, 120-121, 25 Cal.Rptr.2d 162; Gurkewitz v. Haberman (1982) 137 Cal.App.3d 328, 336, 187 Cal.Rptr. 14.) Quoting the legislative history, the California Supreme Court in Laird v. Blacker (1992) 2 Cal.4th 606, 618, 7 Cal.Rptr.2d 550, 828 P.2d 691 stated that the purposes of tolling based on continuous representation are "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.'" The latter purpose reflects the understanding that a client who relies on an attorney ordinarily is not able to evaluate the attorney's professional services and should be entitled to rely on the attorney's competence and good faith while the representation continues. (O'Neill, supra, at p. 120, 25 Cal. Rptr.2d 162; see Greene v. Greene (1982) 56 N.Y.2d 86, 451 N.Y.S.2d 46, 50, 436 N.E.2d 496.⁴)

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. An attorney's representation of a client ordinarily ends when the client discharges the attorney or consents to a withdrawal, the court consents to the attorney's withdrawal, or upon completion of the tasks for which the client...