Miller v. Metzinger

• Decision Date: 27 March 1979
• Citation: Miller v. Metzinger, 154 Cal.Rptr. 22, 91 Cal.App.3d 31 (Cal. App. 1979)
• Court: California Court of Appeals
• Parties: Margaret MILLER, Larry Miller, Michael Miller, and Karen Miller, Plaintiffs and Appellants, v. Lewis METZINGER and Sepulveda & Metzinger, Defendants and Respondents. Civ. 53649.

Page 22

154 Cal.Rptr. 22

91 Cal.App.3d 31

Margaret MILLER, Larry Miller, Michael Miller, and Karen Miller, Plaintiffs and Appellants, v.Lewis METZINGER and Sepulveda & Metzinger, Defendants and Respondents.

Civ. 53649.

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

March 27, 1979.

Flame, Sanger, Grayson & Ginsburg, Encino, Frank & Rappaport, Los Angeles, and Ronald S. Sofen, Encino, for plaintiffs and appellants.

Gregg M. Oester, Encino, for defendants and respondents.

POTTER, Associate Justice.

PlaintiffsMargaret Miller(hereinafter Miller) and her adult children (Larry, Michael and Karen Miller) appeal from a summary judgment in favor of defendantsLewis Metzinger(hereinafter Metzinger) and Sepulveda & Metzinger, a professional corporation, in plaintiffs' suit for attorney malpractice.

A prior action for wrongful death (medical malpractice against two doctors and a hospital) brought by plaintiffs as heirs of Jack Miller was decided in favor of the defendants therein after a bifurcated trial of the defense of statute of limitations (Code Civ.Proc., § 340.5).Jack Miller died on January 4, 1973, and plaintiffs were found to be chargeable with knowledge of the cause of his death as of that date.The suit was not commenced until January 30, 1974.¹

The complaint in the case at bench charged four different attorneys or law firms with negligently failing to bring the wrongful death action within the applicable statute of limitations.It alleged that the first attorneys consulted (in early 1973) were Rudofsky & Meo, and that after they obtained copies of decedent's medical records they declined to handle the matter.However, the records were sent to the second attorney, Bernard Echt, who retained them until on or about December 28, 1973.The third firm, Sepulveda & Metzinger, allegedly became involved when plaintiffs consulted Metzinger on or about July 1, 1973, but this firm also withdrew.The allegations in this respect were:

"On or about November 1, 1973, LEWIS METZINGER informed Plaintiffs that he did not have sufficient expertise to handle a medical malpractice cause of action and referred Plaintiffs to Defendants, CHEREN & GOLDBERG.On or about December 1, 1973, Defendants, CHEREN & GOLDBERG, agreed to handle the matter for Plaintiffs.A written retainer agreement was entered into.Said written retainer agreement was entered into on or about December 26, 1973."

Plaintiffs did not allege which defendant was in possession of the file on January 4, 1974, only that the complaint filed January 30, 1974, "after the statute of limitations had run" was filed by defendants Cheren & Goldberg.

Between the filing of the complaint and the summary judgment, discovery was undertaken, including depositions of Miller and of defendants Metzinger and Matthew Meo, and interrogatories were answered by plaintiffs.

Defendants Meo, Meo & Rudofsky, and Bernard Echt were voluntarily dismissed.

In June 1977, defendants Metzinger and Sepulveda & Metzinger filed a motion for summary judgment.This motion was heard August 29, 1977.Prior to the hearing, the original depositions of Matthew Meo and Metzinger with attached exhibits were completed and filed.The deposition testimony of plaintiff Miller was presented by the moving defendants through the declaration of Victor Sepulveda which stated that he took the deposition and that exhibit A attached to the declaration is a "transcript of the deposition."²

In addition to the deposition testimony, the moving defendants submitted three declarations of Metzinger.

In opposition, plaintiffs relied upon the deposition testimony, upon the declaration of David H. Cheren, and upon the opposition declaration of Miller.³Miller did not attempt to correct or qualify any of her deposition testimony.

Certain basic facts, as shown by the deposition testimony and declarations, were undisputed.In early 1973, Miller contacted Rudofsky & Meo with respect to the wrongful death claim arising out of Jack Miller's death.She gave them a written authorization dated March 2, 1973, to obtain the medical records, which they did obtain.These were forwarded by Meo to Bernard Echt for his evaluation and were still in his possession in December 1973.At some time in 1973, Miller consulted with Metzinger ⁴ concerning the wrongful death claim and ultimately Metzinger advised her that he was unable to handle the case because he"did not have sufficient expertise in medical malpractice."Metzinger summarized, ". . . I met with her one time and wrote down a statement of the facts of the case, evaluated my ability to handle the case, met with her again to tell her I couldn't handle the case and sent her to somebody else."It was also undisputed that (1) the firm to which plaintiff was sent was Cheren & Goldberg, (2)plaintiff Miller did retain Cheren & Goldberg to prosecute the claim, and (3) a retainer agreement (not necessarily the first) was executed by Miller and by that firm on January 21, 1974, after the statute of limitations had already run on the wrongful death claim.

An additional undisputed fact of critical importance was that Metzinger sent a letter to Meo, dated December 27, 1973, which read as follows:

"December 27, 1973

Meo & Rudofsky

16255 Ventura Boulevard, Suite 1008

Encino, California 91316

Re: Jack Miller, Deceased

(Possible malpractice)

Dear Mr. Meo:

Pursuant to our conversation regarding the above-captioned matter I am writing you this letter to indicate to you that we are possibly interested in taking over this file.

It is my understanding that this file is presently in the hands of Attorney Bernard Echt and that you are attempting to return this file to your office.As soon as you have had an opportunity to have this file returned to your office, I would request that you have your secretary contact my office so that I may come over to see you and review the file to see if we will, in fact, take the case.It is my understanding that the statute of limitations on this matter is running shortly.I, therefore, would appreciate any assistance that you could give us in promptly setting up a date for my review of the file.

I remain,

Sincerely yours,

SEPULVEDA & METZINGER

TL Called Echt

12-28-73

230

By /s/ Signature

------

LEWIS METZINGER "

LM:ck Beyond those above recited, the facts were uncertain or there were conflicts.There was great uncertainty as to the dates when (1) Miller contacted Metzinger, and (2) Metzinger advised Miller of his inability to handle the case and referred her to Cheren & Goldberg.The unverified complaint alleged that the original consultation was on or about July 1, 1973, and that "(o)n or about November 1, 1973, LEWIS METZINGER informed Plaintiffs that he did not have sufficient expertise to handle a medical malpractice cause of action and referred Plaintiff to Defendants, CHEREN & GOLDBERG."

In her deposition, Miller testified that she saw Metzinger two or three times but could not remember the dates because she"was going through a very trying period at that time."She could not say whether it was more than six months or less than six months after her husband died.She was equally unable to date this event by reference to the succeeding contact with Cheren & Goldberg.She did testify that this contact was in 1973 and when asked if it was "before the month of December" said "I am sure it must have been."However, when admonished not to guess, plaintiff stated, "I don't know," and in her declaration in opposition Miller stated, "I do not know when these meetings or conversations occurred."

Metzinger's deposition testimony was equally uncertain as to the dating of these conversations.When asked if he had any contact with Miller at all during the year 1973, Metzinger answered, "I honestly don't know."Specifically, he could not state whether his last meeting with Mrs. Miller was before or after he wrote the December 27, 1973 letter to Meo and Rudofsky.This testimony contrasted with the statement in Metzinger's declaration executed some weeks later in which he stated that he advised plaintiff that he would attempt to get the medical records from her then present attorney, was unsuccessful in that attempt, and in November 1973, told her that he would be unwilling to undertake the representation.

The deposition testimony of Meo also bore upon the dating of the contacts between Miller and Metzinger.He testified that the December 27, 1973 letter, as indicated by the statement therein that it was written "(p)ursuant to our conversation" was preceded by a phone conversation of like content, and that the handwritten notation on the original of the letter, "Called Echt 12-28-73, 2:30" was in his handwriting and reflected the fact that on that date he called Bernard Echt and asked for the records.

There was also considerable uncertainty as to the content of the discussions between Miller and Metzinger.In his deposition, Metzinger stated that he did not "remember any of the substance" of the conversations he had with Mrs. Miller and could not say whether he ever advised her that an action should be filed on her behalf prior to one year from the day of her husband's death." When asked, "Did you ever agree to perform any work on Margaret Miller's children's behalf in connection with the medical-malpractice claim?"he answered, "I don't know. " However, in his declaration, Metzinger stated that Miller asked him to investigate the case, that he had advised her that in order to do so it was necessary to examine the medical records and suggested he would obtain them from her present counsel, but "never indicated at this time that I would undertake this matter nor represent her. " In the declaration Metzinger summarized: "At no time during any conversation or consultation period did I agree to represent Mrs. Miller in any regard to this claim . . . .My entire relationship to this action was of an investigatory nature."

The testimony of p...