Kulesa v. Castleberry

• Decision Date: 10 July 1996
• Docket Number: No. G015354,G015354
• Citation: 47 Cal.App.4th 103,54 Cal.Rptr.2d 669
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 5171, 96 Daily Journal D.A.R. 8305 James W. KULESA et al., Plaintiffs and Appellants, v. Robert W. CASTLEBERRY et al., Defendants and Respondents.

Page 669

54 Cal.Rptr.2d 669

47 Cal.App.4th 103, 96 Cal. Daily Op. Serv. 5171,

96 Daily Journal D.A.R. 8305

James W. KULESA et al., Plaintiffs and Appellants, v. Robert W. CASTLEBERRY et al., Defendants and Respondents.

No. G015354.

Court of Appeal, Fourth District, Division 3, California.

July 10, 1996.

Review Denied Oct. 16, 1996.

Becker & Becker and Geoffrey Becker, South San Francisco, for Plaintiffs and Appellants

Sedgwick, Detert, Moran & Arnold, Thomas B. McNutt and Amand K. Mines, Los Angeles, for Defendants and Respondents.

OPINION

SONENSHINE, Associate Justice.

James W. Kulesa (Kulesa) and Mary H. Kulesa appeal from a summary judgment in favor of Kulesa's former attorneys, Robert W. Castleberry and the law firm of Callahan, McCune & Willis (Callahan), in the Kulesas' legal malpractice action. We reverse the judgment, holding the statute of limitations on a legal malpractice action is unconditionally tolled during the time the attorney continues to represent the client regarding the specific subject matter in which the alleged malpractice occurred. (Code Civ. Proc., § 340.6, subd. (a)(2).) ¹ The continued representation tolling is unaffected by events which might otherwise trigger the commencement of the statutory period. We further decide a trial court must consider all of the papers submitted to determine whether triable issues of fact exist (§ 437c, subd. (c)) before exercising its discretion to grant a summary judgment based on the failure of the opposing party to file an adequate separate statement. (§ 437c, subd. (b).)

FACTUAL AND PROCEDURAL BACKGROUND

On January 12, 1989, Kulesa was injured in an automobile accident. Within a few weeks, he retained Castleberry and Callahan to represent him in a personal injury action. The attorneys filed a lawsuit against the driver of the other vehicle and retained a consultant to investigate potential liability for Kulesa's failed seat belt. Based upon the consultant's report, they did not assert causes of action against either the auto manufacturer or the seat belt manufacturer. Moreover, they did not name Kulesa's wife, Mary, as a plaintiff and allege loss of consortium on her behalf. The statute of limitations within which to make those claims expired on January 12, 1990, one year from the date of the accident. (§ 340, subd. (3).) The record does not indicate whether Kulesa and the defendant settled the case, but Castleberry and Callahan filed a request for dismissal of the action on December 14, and the dismissal was entered on December 27.

On November 29, 1991, the Kulesas retained Geoffrey Becker. They filed a malpractice suit against the former attorneys on December 16, alleging Castleberry and Callahan negligently failed to (1) refer the case to product liability attorneys, (2) sue the auto manufacturer and the seat belt manufacturer, (3) retain a competent consultant to investigate the seat belt failure, and (4) assert Mary's loss of consortium claim.

On February 16, 1993, Castleberry and Callahan moved for summary judgment, contending the Kulesas' lawsuit was time-barred. Their separate statement listed only three undisputed material facts: The Kulesas filed the legal malpractice suit on December 16, 1991; the action arose out of the underlying auto accident which occurred on January 12, 1989; and the Kulesas sought damages for the attorneys' failure to sue the manufacturers and assert Mary's loss of consortium claim. They argued: (1) An attorney's liability for failing to assert a claim arises when the claim is "proscribed;" (2) any claims against the auto or seat belt manufacturer or on behalf of Mary Kulesa for loss of consortium were proscribed when the attorneys failed to assert them within one year of the accident, i.e., by January 12, 1990 (§ 340, subd. (3)); (3) under Finlayson v. Sanbrook (1992) 10 Cal.App.4th 1436, 13 Cal.Rptr.2d 406, the statute of limitations on the legal malpractice action commenced to run the same day because that was when they sustained "actual injury;" (4) the legal malpractice The Kulesas filed a separate statement which neither disputed the attorneys' material facts nor set forth any additional facts. However, in their points and authorities, supported with a relevant evidentiary exhibit, they argued the statute had been tolled because of the attorneys' continued representation at least until mid-December 1990. (§ 340.6, subd. (a)(2).) And after the court continued the hearing, the Kulesas filed supplemental opposition papers, once again citing section 340.6, subdivision (a)(2) and noting, in a boldface, upper case heading on the first page of the document, "THE STATUTE OF LIMITATIONS WAS TOLLED DURING THE PERIOD OF TIME THAT THE LAWYERS CONTINUED TO REPRESENT MR. KULESA." Attached as an exhibit was a copy of the dismissal of the personal injury action, filed by Castleberry and Callahan on December 27, 1990. They cited authority setting forth the public policy reasons against allowing negligent attorneys to avoid malpractice actions by continuing to represent a client until the expiration of the statute of limitations. In short, their position was they had created a triable issue of fact as to the timeliness of the complaint. ³

statute of limitations, section 340.6, subdivision (a), gave the Kulesas one year (until January 12, 1991) to sue the attorneys; and (5) the action filed December 16, 1991, was untimely under Finlayson. ²

The reply papers filed by Castleberry and Callahan did not dispute the Kulesas' factual evidence. Instead, the lawyers argued neither delayed discovery of actual harm nor continued representation tolls the legal malpractice statute of limitations in "missed statute" cases. ⁴ The trial court agreed and entered summary judgment. We reverse.

DISCUSSION

We must address two issues. The first is whether the trial court committed legal error in concluding the Kulesas' action was untimely despite the attorneys' continued representation to a date within a year of the filing of the legal malpractice complaint. The second is, even if there was error, can the summary judgment be affirmed on the ground the trial court had discretion to grant it because the Kulesas failed to follow proper procedures in presenting their opposition?

I

To prevail on their summary judgment motion, Castleberry and Callahan had to establish their complete defense to the Kulesas' action as a matter of law. (See Baker v. Superior Court (1983) 150 Cal.App.3d 140, 146, 197 Cal.Rptr. 480.) Their defense was the Kulesas' claims for legal malpractice were barred by the statute of limitations. Thus, the starting point of our analysis is section 340.6, the legal malpractice Under the plain language of the statute, the continued representation tolling applies categorically, not conditionally: The clock stands still. ⁵ As the California Supreme Court observed in Laird v. Blacker (1992) 2 Cal.4th 606, 618, 7 Cal.Rptr.2d 550, 828 P.2d 691, section 340.6's tolling "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.' " (See also Hensley v. Caietti (1993) 13 Cal.App.4th 1165, 1171, 16 Cal.Rptr.2d 837 ["When the client has discovered an attorney's negligence the purpose of ... section 340.6 is to toll the period of limitations during the time that the client cannot reasonably be expected to initiate a malpractice action because to do so would disrupt an ongoing attorney-client relationship."].)

statute of limitations, which, as relevant here, provides the action "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, ... except that the period shall be tolled during the time ... [p] ... [p] ... [t]he attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred." (§ 340.6, subd. (a)(2), italics added.)

Castleberry and Callahan present no argument regarding the substantive merits of continued representation tolling. Instead, they focus entirely on Finlayson, insisting its holding is dispositive regarding accrual of the legal malpractice cause of action. They contend regardless of continued representation, as a matter of law, the statute of limitations on the legal malpractice action began to run on the day the Kulesas lost their rights to pursue their personal injury claims due to the attorneys' failure to timely assert those claims and expired one year later. They are wrong.

In Finlayson, the trial court dismissed as untimely a legal malpractice action based on the defendant attorney's alleged failure to file his client's personal injury suit against potential asbestos defendants within one year after the client discovered his disability was caused by asbestos exposure. The relevant dates were: 1981, the plaintiff discovered the cause of his illness and retained an attorney; 1982, the asbestos claims became time-barred (§ 340.2, subd. (a)(2)); 1983, the plaintiff discovered his attorney's negligence and the attorney ceased to represent him in the matter; 1988, summary judgment on limitations grounds was granted in favor of certain asbestos defendants in the personal injury action; and 1989, the legal malpractice action was filed. ⁶ (Finlayson v. Sanbrook, supra, 10 Cal.App.4th at pp. 1439-1440 & 1444-1445, fn. 8, 13 Cal.Rptr.2d 406.)

In its review, the Finlayson court was required to interpret section 340.6, subdivision (a)(1), which provides for tolling of the legal malpractice statute of limitations during the time "[t]he plaintiff has not sustained actual injury." The plaintiff contended the action against his attorney was timely because he did not...