Judge: Joseph Lipner, Case: 21STCV35967, Date: 2024-01-18 Tentative Ruling

Case Number: 21STCV35967    Hearing Date: January 18, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant William P. Glavin (“Defendant”) moves for summary judgment against Plaintiff Elizabeth Karr (“Plaintiff”).

The Court GRANTS Defendant’s motion.

Background

This is a legal malpractice action. This action arises out of legal representation which Defendant provided to Plaintiff in an action dissolving her marriage to Peter Tashman.

Plaintiff filed a petition for dissolution of her marriage to Tashman on September 28, 1997. On January 12, 2000, a judgment was entered in the dissolution of marriage action (the “Judgment”).

Tashman had three employee retirement benefit plans which were paid into using community property money: one at Citigroup Inc. (the “Citigroup Plan”) and two annuities at John Hancock (the “John Hancock Plans”) (collectively, the “Plans”). Plaintiff had a partial interest in the Plans. However, Defendant did not join the Plans in the dissolution action or provide them notice of Plaintiff’s adverse interest in the plan benefits.

Plaintiff contends that, following the dissolution, she always assumed that Defendant was still her lawyer regarding her divorce. (Karr Decl. ¶ 9.)

In 2001, Tashman drew down the entirety of the benefits in the Citigroup Plan. In 2013, although he was not yet 65, Tashman began receiving benefits from the John Hancock Plans. No portion of these benefits was paid to or set aside for Plaintiff. Plaintiff was not aware of these transactions.

In June 2020, Tashman had informed Plaintiff that he would not cooperate in the preparation of a Qualified Domestic Relation Order (“QDRO”) regarding the John Hancock Plans, should one be necessary. (Karr Decl. ¶ 4.) As a result, Plaintiff contacted Defendant to ask whether Defendant and Tashman’s lawyer had determined whether a QDRO was necessary for the John Hancock Plan. (Karr Decl. ¶ 4.) Defendant referred Plaintiff to attorney Darren Goodman, whom Defendant said handled QDROs. (Karr Decl. ¶ 4.)

In August 2020, approaching the age of 65, Plaintiff contacted Citigroup to obtain the benefits to which she was entitled. In the first week of October, 2020, Citigroup informed Plaintiff that Tashman had taken a full distribution of the plan benefit in April 2001 and that, as a result, there were no remaining benefits payable to Plaintiff from the Citigroup Plan.

Between June 11, 2020 and May 28, 2021, Plaintiff spoke with Defendant between five and ten times regarding the next steps for dealing with Tashman’s noncooperation. (Karr Decl. ¶ 5.)

On April 14, 2021, Nancy Leary, a QDRO consultant at John Hancock, emailed Plaintiff to inform her that Tashman had two retirement accounts with John Hancock. (Karr Decl. ¶ 7.) Sometime after the April 14, 2021 email, Leary informed Plaintiff that Tashman had been receiving the entirety of the John Hancock Plans’ monthly benefit payments since July 2013. (Karr Decl. ¶ 8.) This was the first time that Plaintiff was informed that Tashman was receiving those payments. (Karr Decl. ¶ 8.)

On May 14, 2021, Goodman sent Plaintiff an email stating that Plaintiff would need to obtain a QDRO from a court in order to access the John Hancock Plans’ benefits. Plaintiff called Defendant’s office for assistance. Defendant stated that it would take about ten hours of his time to prepare and file a request for a QDRO. Defendant sent Plaintiff a proposed contract calling for Plaintiff to deposit $7,500.00 in Defendant’s trust account so that Defendant could start on the work.

Plaintiff filed this action on September 30, 2021. The operative complaint is now the First Amended Complaint (“FAC”), which states a claim for legal malpractice against Defendant. The other defendants have been dismissed from the case.

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) 

“In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn therefrom [citation] and must view such evidence [citations] and such inferences [citations] in the light most favorable to the opposing party.” (Aguilar, supra, at pp. 844-845 [quotation marks omitted].) 

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

Discussion

“To state a cause of action for legal malpractice, a plaintiff must plead (1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney’s negligence.” (Kumaraperu v. Feldsted (2015) 237 Cal.App.4th 60, 66, quotation marks omitted.)

“(a) An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services 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, or four years from the date of the wrongful act or omission, whichever occurs first. If the plaintiff is required to establish the plaintiff's factual innocence for an underlying criminal charge as an element of the plaintiff's claim, the action shall be commenced within two years after the plaintiff achieves postconviction exoneration in the form of a final judicial disposition of the criminal case. Except for a claim for which the plaintiff is required to establish the plaintiff's factual innocence, the time for commencement of legal action shall not exceed four years except that the period shall be tolled during the time that any of the following exist:

(1) The plaintiff has not sustained actual injury.

(2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.

(3) The attorney willfully conceals the facts constituting the wrongful act or omission when those facts are known to the attorney, except that this subdivision shall toll only the four-year limitation.

(4) The plaintiff is under a legal or physical disability that restricts the plaintiff's ability to commence legal action. ….”

(Code Civ. Proc., § 340.6.)

          Defendant argues that Plaintiff’s claim is barred by the statute of limitations.

Date of Actual Injury

“Any appreciable and actual harm flowing from the attorney's negligent conduct establishes a cause of action upon which the client may sue.” (Budd v. Nixen (1971) 6 Cal.3d 195, 201.) “Indeed, once having discovered [the] attorney's negligence and having suffered some damage, the client must institute [an] action within the time prescribed in the statute of limitations or [they] will be barred from thereafter complaining of [the] attorney's conduct.” (Ibid.)

It is undisputed that Tashman had drawn down the entirety of the Citigroup benefits by the end of 2001. Thus, Plaintiff had suffered actual injury by the end of 2001.

Date of Wrongful Ommission

          Plaintiff asserts that there are two mechanisms by which a nonemployee spouse can bind an employee benefit plan under a QDRO. First, the nonemployee can join the plan as a party to the dissolution action. (Fam. Code, § 2070.) The judgment in the dissolution action was entered on January 12, 2000. Thus, Defendant’s failure to join the Plans certainly occurred by that time.  From this date, the 4-year period would ordinarily run no later than the end of 2005. 

Second, according to Plaintiff, the nonemployee can provide written notice of their adverse interest in the benefits to the plan, after the date of which notice the plan will be liable to the nonemployee spouse for subsequent payments made to the employee spouse. (In re Marriage of Baker (1988) 204 Cal.App.3d 206, 215 [discussing prior statute].)  Defendant does not address this argument.  Plaintiff’s argument, however, relies on a case, Baker, which is interpreting a statute that is no longer in effect, so the continued viability of this rule is not clear to the Court.  But even assuming for the sake of argument that Plaintiff is correct, any obligation to provide notice would have ended when Defendant stopped being Plaintiff’s lawyer.  As explained below, the undisputed facts show that this representation ended no later than 2004, making the 4-year statute run no later than 2008.

Continued Representation

“In deciding whether an attorney continues to represent a client, [courts] do not focus on the client's subjective beliefs; instead, [courts] objectively examine evidence of an ongoing mutual relationship and of activities in furtherance of the relationship.” (Shaoxing City Maolong Wuzhong Down Products, Ltd. v. Keehn & Associates, APC (2015) 238 Cal.App.4th 1031, 1038 [citations and quotation marks omitted].) “[R]epresentation ends when the client actually has or reasonably should have no expectation that the attorney will provide further legal services.” (Nguyen v. Ford (2020) 49 Cal.App.5th 1, 13.) “[T]he failure to formally withdraw as attorney of record, standing alone, will not toll the statute of limitations under the rubric of continued representation.” (Ibid, quoting Flake v. Neumiller & Beardslee (2017) 9 Cal.App.5th 223, 230–231.)

Plaintiff argues that Defendant continued to represent her, tolling the statute of limitations. Plaintiff has declared that she always assumed that Defendant was still her lawyer regarding her divorce. (Karr Decl. ¶ 9.) Defendant contends that there was no continued representation after 2002 at the latest.

Plaintiff’s deposition indicates that she continued speaking with Defendant to discuss legal strategy in 2003. (Exhibit List, Exh. M-19 at p. 222:1-224:4.) However, Plaintiff has no recollection of any communications with Defendant in 2004. (Exhibit List, Exh. M-19 at p. 224:5-19.) The same is true for the years 2005 through 2019 – Plaintiff does not dispute that she had no conversations with Defendant, has no documents reflecting communications with Defendant, and does not recall receiving billing statements, making payments, or asking Defendant for legal advice in that time period. (Plaintiff’s Separate Statement (“RUMF”) ¶¶ 39-50.) These facts unambiguously show a breakdown in the mutual relationship and a cessation of activities in furtherance of the attorney-client relationship.

As a result, the latest that the attorney-client relationship could have lasted is 2004. The 4-year period would then reach through 2008. Plaintiff filed this action on September 30, 2021. Thus, continued representation could not toll the statute of limitations long enough to extend it to the actual date of filing.