Life v. County of Los Angeles

• Citation: 267 Cal.Rptr. 557,218 Cal.App.3d 1287
• Decision Date: 20 March 1990
• Docket Number: No. B042570,B042570
• Parties: Gabriel Y. LIFE aka Gebru Teklehaimanot, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant-Respondent. Cynthia Zuzga, Defendant and Appellant. Civ.
• Court: California Court of Appeals

Page 557

267 Cal.Rptr. 557

218 Cal.App.3d 1287

Gabriel Y. LIFE aka Gebru Teklehaimanot, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant-Respondent Cynthia Zuzga, Defendant and Appellant.

Civ. No. B042570.

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

March 20, 1990.

Review Denied June 6, 1990.

Tuverson & Hillyard and Christopher Brizzolara, Palm Springs, for defendant and appellant.

William E. Lloyd, Jr., Los Angeles, for plaintiff and cross-appellant.

Thomas & Price and Craig Donahue, Glendale, Greines, Martin, Stein & Richland, Martin Stein and Timothy T. Coates, Beverly Hills, for defendant, respondent and cross-respondent.

KLEIN, Presiding Justice.

Defendant, respondent and cross-respondent County of Los Angeles (the County) moves to dismiss the purported appeal of defendant and appellant Cynthia Zuzga (Zuzga), and the cross-appeal of plaintiff and cross-appellant Gabriel Y. Life, also known as Gebru Teklehaimanot (Life). ¹

The issues presented are (1) whether Zuzga, Life's former attorney, has standing to appeal a judgment in favor of the County on Life's claim for medical malpractice; and (2) whether Zuzga's timely but invalid appeal extended the time for the filing of Life's cross-appeal.

Because Zuzga's relation to the subject matter of the appeal arises solely from her employment as Life's attorney, she is not an aggrieved party and lacks standing to appeal. Zuzga's appeal therefore is dismissed.

While Zuzga's appeal is invalid, because her notice of appeal was timely, it operated to extend the time for Life to file notice of cross-appeal. Accordingly, the County's motion to dismiss Life's cross-appeal is denied.

FACTUAL & PROCEDURAL BACKGROUND

After Life was injured in an automobile accident, he was under the care of County physicians and personnel at Martin Luther King, Jr. Medical Center (Medical Center), a County facility, from December 1983 until February 10, 1984. On or about February 8, 1984, Life retained Zuzga to represent him in his suit against the driver of the other vehicle involved in the accident.

Subsequently, Life discovered the Medical Center's alleged negligence. Zuzga had no prior experience in filing a claim against a governmental entity. On or about May 10, 1984, Zuzga sent a personal injury claim on Life's behalf addressed to the Medical Center.

In September 1984, Life retained new counsel who, on October 1, 1984, filed a claim with the County Board of Supervisors. The claim sought compensation based on allegations of negligence by Medical Center personnel. The County denied the claim as untimely on or about October 30, 1984. Life's new attorney then filed an application for leave to present a late claim. The application was denied. On March 14, 1985, Life took his petition for relief from the claims statute off calendar.

On April 25, 1985, Life filed a complaint alleging medical negligence by the County and legal malpractice by Zuzga. ² Life On January 23, 1989, the County filed a motion for summary judgment on the grounds: the undisputed evidence demonstrated that Life had not filed a claim with the County Board of Supervisors within 100 days of the accrual of his cause of action as required by Government Code sections 911.2 and 915; the County was not estopped to assert the claims statute; and, Life could not obtain relief from the claims statute.

filed a first amended complaint on August 7, 1985, pleading two causes of action. The pleading did not name the other driver as a defendant. In the first cause of action directed against the County, Life alleged medical malpractice. In the second cause of action, against Zuzga, Life alleged legal malpractice based on Zuzga's failure to file a timely government tort claim.

Life's new counsel filed papers opposing the County's motion. Zuzga, who also had retained counsel, likewise opposed the County's motion. The County's reply to the opposition papers did not challenge Zuzga's standing to oppose its motion and addressed the merits of her contentions.

The trial court granted summary judgment in favor of the County on Life's complaint, and judgment was entered on April 3, 1989. On April 4, 1989, the County served notice of entry of judgment on Life and Zuzga.

Fifty-nine days later, on June 2, 1989, Zuzga filed notice of appeal from the judgment in favor of the County as against Life. Eleven days later, on June 13, 1989, Life filed notice of cross-appeal.

The County subsequently filed the subject motions to dismiss Zuzga's appeal and Life's cross-appeal.

CONTENTIONS

The County contends: (1) Zuzga's appeal must be dismissed because she is not aggrieved by the judgment and therefore lacks standing to appeal; and (2) Life's cross-appeal must be dismissed because Zuzga's invalid appeal cannot extend the time in which a cross-appeal could be taken.

I. Attorney Zuzga lacks standing to appeal the judgment in favor of the County on Life's complaint. ³

a. General principles.

Any aggrieved party may appeal from an adverse judgment. (Code Civ.Proc., § 902.) ⁴ It is generally held, however, that only parties of record may appeal. Nonetheless, one who is legally aggrieved by a judgment may become a party of record and obtain a right to appeal by moving to vacate the judgment pursuant to section 663. (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736, 97 Cal.Rptr. 385, 488 P.2d 953.)

Obviously, Zuzga is a party of record to Life's action as she is named as a defendant in Life's second cause of action. However, she is not a party to the judgment, which was entered in favor of the County on Life's first cause of action for medical malpractice. An appeal by a defendant against whom there is no judgment entered and who is not a party aggrieved by the judgment must be dismissed. (Wallace v. Pacific Electric Ry. Co. (1930) 105 Cal.App. 664, 672-673, 288 P. 834.) Therefore, the essential issue is whether Zuzga is aggrieved by the judgment so as to have standing to take an appeal therefrom.

One is considered aggrieved whose rights or interests are injuriously affected by the judgment. An appellant's interest " ' "must be immediate, pecuniary, and substantial and not nominal or a remote consequence of the judgment." ' " (County of Alameda, supra, 5 Cal.3d at p. 737, 97 Cal.Rptr. 385, 488 P.2d 953; see Leoke v. County of San Bernardino (1967) 249 Cal.App.2d In re Marriage of Tushinsky, supra, 203 Cal.App.3d 136, 249 Cal.Rptr. 611, addresses the issue of standing by a party's attorney to appeal. In Tushinsky, the trial court entered a " 'Further Judgment on Reserved Issues' " awarding the wife's former attorneys the sum of $5,000 as attorney's fees in the dissolution proceeding. (Id., at p. 140, 249 Cal.Rptr. 611.) That amount was offset by $2,500, which figure represented sanctions against the same attorneys regarding a discovery matter. The trial court further found unenforceable a lien filed by the attorneys regarding their services to the wife in another action. (Id., at p. 141, 249 Cal.Rptr. 611.)

                767, 771, 57 Cal.Rptr. 770.)   A party who would be bound by the doctrine of res judicata, whether or not a party of record, is a party sufficiently aggrieved to assert appellate rights.  (Leoke, supra, at p. 771, 57 Cal.Rptr. 770.)
                

The attorneys filed a purported appeal from the judgment. The appeal was dismissed because the attorneys lacked standing to appeal. Tushinsky observed the right to attorney's fees and costs under Civil Code 4370 belongs to the client spouse and accrues to the benefit of the attorney only indirectly. (Tushinsky, supra, 203 Cal.App.3d at p. 142, 249 Cal.Rptr. 611.) Accordingly, the wife's attorneys were not aggrieved parties within section 902 with respect to a ruling on a request for attorney's fees encompassed in the final judgment in the dissolution proceeding. (Ibid.)

Tushinsky relied, inter alia, on Telander v. Telander (1943) 60 Cal.App.2d 207, 209, 140 P.2d 204, wherein a husband moved to dismiss an appeal taken by his wife's attorney from an order denying her attorney's motion for attorney's fees. The wife had retained the attorney to represent her in an action for separate maintenance. After the husband and wife reconciled, the wife requested her attorney to dismiss her action. The attorney refused to do so, contending he was entitled to additional fees for services allegedly rendered. The wife then engaged the services of another attorney and served upon her first attorney a notice of motion to substitute. The discharged attorney then moved for an order directing the husband to pay him additional compensation. The trial court granted the wife's motion to substitute and denied the attorney's request for additional fees. (Id., at pp. 208-209, 140 P.2d 204.) The attorney appealed.

The attorney's appeal was dismissed. Telander held "whatever relation appellant had to the subject matter of the litigation arose solely and alone from and out of his employment." (Telander, supra, 60 Cal.App.2d at p. 210, 140 P.2d 204.) Because the attorney had no interest in the subject matter of the wife's action for separate maintenance, the attorney was not an aggrieved party and was not entitled to appeal orders made in the action. (Id., at p. 209, 140 P.2d 204.) ⁵

b. Zuzga's interest a nominal or remote consequence of the judgment.

In view of the fact the fees sought by the attorneys in Tushinsky and Telander did not give them an immediate, pecuniary and substantial interest in the judgment, it necessarily follows that Zuzga's potential pecuniary liability for legal malpractice would be a nominal or remote consequence of the summary judgment in favor of the County.

If one's status as attorney were sufficient to confer standing to intervene on appeal, attorneys routinely would inject themselves into their clients' litigation in an attempt to preempt or minimize potential malpractice claims. Such a consequence obviously would wreak havoc with the attorney/client...