Letgolts v. David H. Pierce & Assocs., PC
| Decision Date | 02 November 2021 |
| Docket Number | B306905 |
| Parties | Allen LETGOLTS et al., Plaintiffs and Appellants, v. DAVID H. PIERCE & ASSOCIATES, PC, et al., Defendants and Respondents. |
| Court | California Court of Appeals Court of Appeals |
Timothy D. McGonigle Professional Corporation and Timothy D. McGonigle, Los Angeles, for Plaintiffs and Appellants.
Freeman Mathis & Gary, Frances M. O'Meara, Stephen M. Caine, Los Angeles and Holly M. Teel, Lexington, for Defendants and Respondents.
A case within a case can arise when a legal malpractice suit accuses lawyers of poor work. The main case is the malpractice suit: were the defendant lawyers’ performances deficient? The case within the case is whether the lawyers’ performances mattered. If the underlying suit on which the lawyers worked lacked merit, then their alleged malpractice could not have had an impact, because the client would have lost anyway. The issue is causation: whether possible malpractice could have caused harm. (See Viner v. Sweet (2003) 30 Cal.4th 1232, 1239–1240, 135 Cal.Rptr.2d 629, 70 P.3d 1046.)
This appeal follows that pattern.
Married couple Allen Letgolts and Gabriella Plattner hired a law firm to get money from an insurance company: National Contractors Insurance Company, Inc. But National's policy was a special and narrow kind of manuscript policy that excluded the kind of construction defect claims Letgolts and Plattner were pursuing. Plaintiffs Letgolts and Plattner also asserted a claim for personal injury from when Plattner fell down stairs. National's policy did cover personal injuries. But Plattner's tardy and uncorroborated claim was at odds with the detailed lists of problems Plattner herself gave the insurer years before. Plattner thus effectively impeached herself. The trial court implicitly rejected Plattner's testimony about her personal injury claim. We credit this implied credibility determination.
As a result, the trial court rejected the legal malpractice suit against the defendant law firm because pursuing insurance money from National was a lost cause from the start. This ruling was correct: whether the law firm committed malpractice did not matter, because Letgolts and Plattner could not have won their insurance case. We affirm.
Letgolts and Plattner are the plaintiffs and appellants. They had a bad experience remodeling their home in 2008. The fallout continues today, 13 years later, with this appeal.
The defendants and respondents in this legal malpractice case are the law firm of David H. Pierce and Associates, P.C., and Charles Pressman, who is a lawyer with that firm. We refer to this firm and Pressman collectively as Pierce.
We summarize the facts in three phases.
First is the 2007 to 2010 time frame. In these years, Letgolts and Plattner hired contractor Boris Pinchevskiy to remodel their home. Pinchevskiy made a mess of the project and then walked away, so Letgolts and Plattner sued him and others.
The second phase is 2010 to 2015, which was a quiescent interval.
The third phase is 2015 to 2020, which produced forward motion in the dispute, culminating in a 2020 bench trial. The trial court ruled against Letgolts and Plattner, who now appeal.
We describe these three phases.
The first factual phase was from 2007 to 2010. This phase began with Letgolts and Plattner planning their home remodel and room addition. This remodel ended in litigation.
Letgolts and Plattner planned their remodel with care, according to their later unverified complaint. Their allegations tell this story.
In 2007, Letgolts and Plattner consulted Maritza Hartnett, an insurance agent who had helped them obtain car insurance, homeowners insurance, flood insurance, and earthquake insurance. Plattner, a practicing lawyer, told Hartnett about the planned remodel. Plattner said it would be major: it would take some of their home "down to the studs." Plattner wanted full insurance against all hazards.
Hartnett assured Plattner her existing homeowners policy with Fire Insurance Exchange fully covered the situation.
Hartnett was wrong: the Fire Insurance Exchange policy excluded property damage caused by "construction activities." "Construction activities" were what Plattner and Letgolts wanted Pinchevskiy to undertake.
Plattner and Letgolts alleged that, had Hartnett accurately disclosed that the Fire Insurance Exchange policy excluded property damage caused by construction activities, they would have obtained different insurance or a similar product, such as a bond, to protect them against the risk of construction-related property damage.
In reliance on Hartnett's bad advice and with no bond or other insurance, Letgolts and Plattner signed a contract with Pinchevskiy on December 8, 2007. His crew began demolition.
On January 15, 2008 , an event central to this appeal either did, or did not, occur. In 2020 , Plattner would claim she fell down a home staircase Pinchevskiy allegedly had rebuilt in a negligent way. Plattner in 2020 portrayed the supposed fall as serious: "On January 15, 2008, I fell down the unfinished stairs at the job site and suffered a concussion, lacerations, muscle strain, and tendonitis
and sought care from a physician."
We will return to the uncertainty surrounding this alleged January 15, 2008 fall and Plattner's alleged concussion, lacerations, and medical care. For now, we continue in chronological order.
As 2008 progressed, Pinchevskiy botched the home remodel. He had cashed six figures of prepayment from Letgolts and Plattner and demolished parts of their home, but he abandoned the unfinished job on July 1, 2008. His negligence caused extensive damage to the home. Plattner claimed Pinchevskiy left the place "completely uninhabitable."
Later in 2008, Letgolts and Plattner sought relief from Pinchevskiy and his insurer National.
Pinchevskiy went bankrupt. National became insolvent. Neither is party to this suit.
On September 11, 2008, Plattner wrote a claims letter to Pinchevskiy's insurance broker to make a claim against National. Plattner enumerated her problems with the home remodel:
In this letter, Plattner did not mention falling down stairs, her concussion, her lacerations, or her medical expenses. Plattner signed her claims letter "Plattner Law Office" with a Century City address different from her home address.
On January 20, 2009, Plattner sent National's insurance adjuster another letter detailing her claims against Pinchevskiy. Plattner now itemized 19 problems:
As we have just listed, item three described Pinchevskiy's removal of a spiral staircase. Plattner's letter did not mention a defectively reconstructed staircase, Plattner's fall, her concussion, her lacerations, or her medical treatment.
Letgolts and Plattner retained attorney Scott Marks, who on November 13, 2009, filed a complaint against three defendants:
This complaint alleged Hartnett assured Letgolts and Plattner their existing homeowners policy with Fire Insurance Exchange would cover possible property damage by Pinchevskiy. Relying on Hartnett's advice, Letgolts and Plattner did not obtain a bond or other insurance. Then Pinchevskiy damaged their property during his bungled remodeling effort. Letgolts and Plattner sought to hold Hartnett, Fire Insurance Exchange, and Pinchevskiy liable for the property damage Pinchevskiy caused.
Hartnett and Fire Insurance Exchange are not parties to this appeal.
This 2009 complaint mentioned "property damage" in 19 different paragraphs. The complaint did not mention a staircase, a fall down it, a concussion, lacerations, or medical treatment for Plattner.
On February 2, 2010, National's coverage counsel responded to Plattner's claims letters with a 26-page analysis of why National had no duty to defend or indemnify Pinchevskiy against the lawsuit by Letgolts and Plattner. This analysis summarized the dispute and stated counsel "would appreciate being advised of any corrections or comments" about its account of the situation. The parties call this document the "claims rejection letter."
This letter reviewed why National's policy did not cover Plattner's claims. The letter mentioned coverage counsel's independent investigation of Plattner's claims.
The letter does not allude to a supposed fall by Plattner, a concussion, lacerations, or medical treatment. Nor is there a reference to "stairs," apart from item three, quoted above, reciting Plattner's report of "Spiral staircase removed and...
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