Worthington v. Rusconi

• Decision Date: 03 November 1994
• Docket Number: No. H011126,H011126
• Citation: 35 Cal.Rptr.2d 169,29 Cal.App.4th 1488
• Court: California Court of Appeals Court of Appeals
• Parties: Dorthia L. WORTHINGTON, Plaintiff & Appellant, v. Ernest RUSCONI, et al., Defendants & Respondents.

Page 169

35 Cal.Rptr.2d 169

29 Cal.App.4th 1488

Dorthia L. WORTHINGTON, Plaintiff & Appellant, v. Ernest RUSCONI, et al., Defendants & Respondents.

No. H011126.

Court of Appeal, Sixth District, California.

Nov. 3, 1994.

Review Denied Jan. 25, 1995.

W. Bartley Anderson, Martin G. Occhipinti, Jr., Law Offices of Michael T. Morrissey, San Jose, for appellant.

Diane C. Deckard, Brian S. Kreger, Langley, Lamberto & Deckard, Los Altos, for respondents.

COTTLE, Presiding Justice.

I. INTRODUCTION

Plaintiff appeals from a judgment entered after the trial court determined, on a summary judgment motion, that plaintiff's attorney malpractice action was time barred. The applicable statute of limitations (Code of Civ.Proc., § 340.6) ¹ is tolled during that period "[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).) In the court below, defendant asserted that his representation of plaintiff ceased, as a matter of law, more than one year before plaintiff's action was filed, as plaintiff lost confidence in him and consulted with another attorney. Plaintiff, on the other hand, claimed that defendant continued to represent her until 11 months before she filed suit. As the evidence presented at the summary judgment hearing discloses a triable issue of material fact regarding the date on which defendant's representation of plaintiff ended, summary judgment was not properly granted. Accordingly, we shall reverse the judgment.

II. FACTS AND PROCEDURAL HISTORY

In November 1982 plaintiff's mother executed a last will and testament, leaving her Morgan Hill home, which was essentially the whole of her estate, to plaintiff, Dorthia L. Worthington, "for the duration of her life or until she remarries, whichever occurs first, ... with the remainder over to my children above-named who survive me at the time of my death. [Plaintiff] also has the power to sell the property prior to the expiration of her life estate determinable upon terms and conditions acceptable to her. However, the net proceeds from the sale shall be divided equally among my children above-named who survive me at the time of my death." The will named plaintiff as executrix. Plaintiff's mother died on May 5, 1988, survived by six children.

On May 7, 1988, plaintiff retained attorney Ernest Rusconi ² to probate her mother's estate. Plaintiff alleges Rusconi "put [his] interests ahead of [her] interests [ ] by recommending and advising that she would have to give up her life estate. [He] concealed from her at that time the fact that, by her giving up her life estate, [he] would make more money in probating the estate and secure a source of funds for the payment of [his] fees." As a result of Rusconi "caus[ing] her to renounce her interest in the life estate," plaintiff alleges she was damaged in a sum in excess of $150,000.

The record on appeal shows that plaintiff, on January 26, 1989, signed a "Partial Disclaimer of Interest in Realty" that was filed in the Santa Clara County Superior Court on January 30, 1989. ³ The disclaimer, after describing the property, states: "The portion that I disclaim pursuant to the provisions of §§ 275, et seq., California Probate Code, consists of my life estate in said realty, but I retain a term of one year only from the date of this instrument in this real property.... [p] I retain the equal one-sixth ( 1/6) interest that I have with my brothers and sisters pursuant to said Paragraph Fifth of the will."

Two months later, plaintiff signed an agreement with her siblings, essentially reiterating the provisions in the disclaimer of interest in realty. The agreement provided that plaintiff could live in the house rent free until it was sold or for one year, whichever occurred sooner, and would receive a one-sixth undivided interest in the property, in exchange for giving up her life estate in the property.

Plaintiff continued to live in the Morgan Hill home through early 1991. At that time two of her siblings discovered that she had turned down a $300,000 offer on the home. They filed a petition for suspension of powers and removal of executrix and for appointment of a successor personal representative, pursuant to Probate Code section 8500. In response to these actions by her siblings, plaintiff sought out new counsel, Douglas Allen.

Rusconi states, in a declaration submitted in support of his summary judgment motion, that Allen called his office on or about March 14, 1991. When Rusconi attempted to return the call, he was unable to reach Allen. He did talk to plaintiff, however. Furthermore, according to his declaration, "[s]ubsequent to March 14, 1991, [he] performed no legal services for plaintiff and had no further contact with her."

This last statement in Rusconi's declaration under penalty of perjury is flatly contradicted by a letter Rusconi sent to plaintiff on April 5, 1991. ⁴ In the letter he makes no mention of a change of counsel. Instead, he suggests to plaintiff how they should proceed with the probate action, as follows: "I have some new thoughts which I have not discussed with you, so will do so in this letter. I believe it would be a good idea to close the estate and distribute the property to the 7 heirs, so you are all joint owners. Then when you come to sell the house, you could sell directly without any court supervision or court proceedings. Since there is no money in the estate to pay your fees and my fees, we would get a note secured by a deed of trust on the property payable in two years or on sale of the property, whichever occurred sooner. We would ask the court to approve 10% interest on the note, which is the amount of interest that judgments bear. [p] By closing the estate, we would resolve the problems of the claims your brothers and sisters are making that you should be paying rent now. I believe we can justify not paying rent because of your duties to keep up the property for if vacant, even the fire insurance would be canceled, and also that it is to the benefit of all the heirs to not sell at a lower price for real estate prices are now beginning to move up. [p] In that connection, I have not heard from any realtor and am wondering if you have listed it again, and whether that realtor is showing the property. [p] Please give me your thoughts regarding this new proposal after you have had a chance to think it over. Please let me hear from you in about a week."

On May 1, 1991, plaintiff and her new attorney signed a substitution of attorneys form. Rusconi signed it the next day. The form was then filed in the probate court on May 14, 1991.

Eleven months later--on April 2, 1992--plaintiff filed the instant legal malpractice action against Rusconi and his firm. In depositions taken in connection with the malpractice lawsuit, plaintiff admitted that she sought alternate counsel because she was dissatisfied with the way Rusconi was handling her case. She felt she "had been misrepresented" by him with respect to her "lifetime estate." ⁵

Rusconi moved for summary judgment, claiming that plaintiff's action was time barred pursuant to section 340.6. Although subdivision (a)(2) tolls the statute of limitations for the period the attorney continues to represent the client, Rusconi asserted his representation of plaintiff ceased when, on or about March 14, 1991, Attorney Allen called his office. Plaintiff argued in opposition to the motion that Rusconi's representation continued until May 14, 1991, when the formal substitution of attorney form was filed. The trial court found Rusconi's position to be the more persuasive and granted summary judgment. From the ensuing judgment, plaintiff appeals.

III. DISCUSSION

A. Summary Judgment: Standard of Review

Defendant Rusconi's contention that the granting of a summary judgment motion is "left to the sound discretion of the trial court" and "will not be disturbed on appeal in the absence of a clear showing of abuse of discretion" is patently incorrect. (See Barisich v. Lewis (1990) 226 Cal.App.3d 12, 14-16, 275 Cal.Rptr. 331.) As this court explained in AARTS Productions, Inc. v. Crocker National Bank, "[s]ince a summary judgment motion raises only questions of law regarding the construction and effect of the supporting and opposing papers, we independently review them on appeal...." (AARTS Production, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064, 225 Cal.Rptr. 203.)

The matter to be determined by the appellate court is "whether facts have been presented which give rise to a triable factual issue. The court may not pass upon the issue itself." (Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181, 89 Cal.Rptr. 737, 474 P.2d 689.) "The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (§ 437c, subd. (c).)

B. Tolling of the Statute of Limitations: Continuing Representation

The sole issue on appeal is whether Rusconi established as a matter of law that his representation of plaintiff ceased more than a year before she filed suit. Relying primarily upon the Third District Court of Appeal's opinion in Hensley v. Caietti (1993) 13 Cal.App.4th 1165, 16 Cal.Rptr.2d 837, Rusconi asserts that the malpractice limitations period commenced in this case no later than March 14, 1991, when plaintiff consulted another attorney after losing confidence in him.

As noted earlier, section 340.6, subdivision (a)(2) tolls the attorney malpractice limitations period for as long as the attorney "continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred." The purpose of this "continuous representation" rule, the Supreme Court observed in Laird v. Blacker (1992) 2 Cal.4th 606, 7 Cal.Rptr.2d 550, 828...