Judge: Michelle Williams Court, Case: 20STCV21986, Date: 2022-10-26 Tentative Ruling
20STCV21986 MITRA JAFARI vs RICHARD BERBERIAN
1. Plaintiff’s Motion for Leave to File First Amended Complaint is DENIED.
2. Defendants Richard Berberian and Law Offices of Richard Berberian, APC’s Motion for Summary Judgment is DENIED.
Background
On June 10, 2020, Plaintiff Mitra Jafari and Seifali Esmaeili filed this action against Defendants Richard Berberian, the Law Offices of Richard Berberian, APC, Harout G. Keosian, Keosian Law Group, APC, Melkon R. Melkonian, Keosian Berberian LLP, Keosian Law Firm, APC, Keosian Law LLP, and Herb Fox. The complaint asserts a single claim for legal malpractice arising out of Defendants’ legal representation in a personal injury action.
MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT
On September 16, 2022, Plaintiffs filed the instant motion for leave to file a First Amended Complaint that adds a cause of action for breach of fiduciary duty and a prayer for punitive damages.
Opposition
In opposition, Defendant contends Plaintiffs’ motion was not timely served, Plaintiffs did not comply with California Rules of Court, rule 3.1324, Plaintiffs unreasonably delayed in seeking to amend the complaint, it will be prejudiced by the amendment, the proposed amendment does not state facts sufficient for punitive damages, and it is barred by the amendment is barred by the statute of limitations as to Defendants Richard Berberian and the Law Offices of Richard Berberian.
Reply
In reply, Plaintiffs contend untimely service of the motion was resolved when the instant motion was continued and Defendants are not prejudiced.
The Court Shall Consider the Motion on the Merits
The Court agrees with Plaintiffs that the notice issue was resolved by the hearing continuance. Additionally, Defendants responded on the merits and were not prejudiced.
Motion for Leave to File First Amended Complaint
Standard
In California, leave to amend is to be granted liberally, to accomplish substantial justice for both parties. (Code Civ. Proc. § 473(a); Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-89.) “[I]t is a rare case in which ‘a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case.” (Morgan v. Superior Court of Cal. In and For Los Angeles County (1959) 172 Cal.App.2d 527, 530. See also Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636, 642 (“The trial court has discretion to permit or deny the amendment of the complaint, but instances justifying the court's denial of leave to amend are rare.”); Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047 (“discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.”).)
Additionally, a party seeking to file an amended pleading must also comply with California Rules of Court, rule 3.1324 which requires that the motion:
(1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;
(2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and
(3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.
(Cal. R. Ct., rule 3.1324(a).) Additionally, the accompanying declaration of counsel must specify:
(1) The effect of the amendment;
(2) Why the amendment is necessary and proper;
(3) When the facts giving rise to the amended allegations were discovered;
(4) The reasons why the request for amendment was not made earlier.
(Cal. R. Ct., rule 3.1324(b).)
Procedural Requirements of Rule 3.1324
Plaintiffs provide a redlined copy of the proposed First Amended Complaint, which substantially satisfies the requirements of California Rules of Court, rule 3.1324(a). (Medel Decl. Ex. B.) Plaintiffs’ motion is also supported by the declaration of their counsel who states:
Plaintiff seeks leave to file her First Amended Complaint (“FAC”) which proposes to add a single cause of action for breach of fiduciary duty. The proposed First Amended Complaint also revises the parties to remove party which was previously dismissed (Herb Fox) and to remove parties which Plaintiffs have been requested to and now agree to eliminate.( KEOSIAN LAW GROUP, APC and KEOSIAN LAW FIRM, APC). Finally, the proposed First Amended Complaint adds a prayer for punitive damages. The duties which form the basis of the new cause of action are identical to those which form the basis of the negligence cause of action and have already been the subject of discovery and expert testimony.
(Medel Decl. ¶ 3(a).) Thus, Plaintiff failed to include in the declaration why the amendment is necessary and proper or the reasons why the request for amendment was not made earlier. (Cal. R. Ct. Rule 3.1324(b).)
Plaintiffs Unreasonably Delayed Seeking the Amendment, Provided No Excuse for the Delay, and Defendants Will Suffer Prejudice as a Result of the Amendment at this Late Stage of the Proceedings
Plaintiffs filed this action on June 10, 2020 and did not seek leave to amend until September 16, 2022, after the filing of the motion for summary judgment heard concurrently with this motion. Defendants have since filed a second motion for summary judgment.
Plaintiffs acknowledge they were in possession of all required facts when the action was filed. (Medel Decl. ¶ 3(a) (“The duties which form the basis of the new cause of action are identical to those which form the basis of the negligence cause of action.”). See Record v. Reason (1999) 73 Cal.App.4th 472, 486–487 (“Appellant had knowledge of the circumstances on which he based the amended complaint on the day he was injured, almost three years before he sought leave to amend.”); Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1380 (“Before filing the complaint, [plaintiff] had all of the necessary information to include the appropriate allegations if he wanted to recover damages under paragraph 9.”).)
Additionally, Plaintiffs do not provide any excuse or explanation for not seeking leave to amend earlier. (Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 939–940 (“The law is also clear that even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial. The cases indicate that the denial may rest upon the element of lack of diligence in offering the amendment after knowledge of the facts, or the effect of the delay on the adverse party.”); Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746 (“he failed to offer any explanation for his delay in seeking leave to amend.”); Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 136 (“The law is well settled that a long deferred presentation of the proposed amendment without a showing of excuse for the delay is itself a significant factor to uphold the trial court's denial of the amendment.”); Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 245 (“appellant offered no explanation for her delay in asserting this new cause of action. . . . Here, there was an unexplained delay of 14 months in raising the new cause of action. We find the trial court did not abuse its discretion in denying leave to amend to add the claim.”).)
“Leave to amend may be denied if there is prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation.” (Kolani v. Gluska (1998) 64 Cal.App.4th 402, 412.) The Court finds Defendants will be prejudiced by Plaintiffs’ proposed amendment only three months prior to the trial date. As noted by Defendants, they have completed discovery and filed their trial documents in this action. Defendants further not Plaintiffs seek to add “a new cause of action and new category of damages which are treated very differently than general or special damages with no additional time to conduct discovery and prepare for trial.” (Opp. at 7:7-9.) The Court agrees that the proposed amendment will likely necessitate further discovery, additional motion practice, and a further undue delay of the trial.
Under the circumstances, denial of leave to amend is appropriate. (P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345 (“We also find no merit to P & D's argument the court abused its broad discretion by denying it leave to amend the complaint to add causes of action for breach of the implied covenant of good faith and fair dealing and ‘breach of the duty to negotiate in good faith.’ The court's ruling was based on unreasonable delay. P & D did not seek leave to amend until after the trial readiness conference, an amendment would require additional discovery and perhaps result in a demurer or other pretrial motion, and P & D offered no explanation for the delay.”).)
MOTION FOR SUMMARY JUDGMENT
On August 10, 2022, Defendants Richard Berberian and Law Offices of Richard Berberian, APC filed the instant motion for summary judgment based upon the statute of limitations.
Opposition
In opposition, Plaintiffs contend there are triable issues of fact as to when Defendants ceased representing Plaintiffs, when Plaintiffs discovered the dismissal, whether Plaintiffs were under a disability restricting their ability to commence the action, and whether Defendants should be equitably estopped from asserting the statute of limitations.
Reply
In reply, Defendants contend Plaintiffs submitted sham declarations and failed to raise a triable issue of fact that would prevent the Court from determining the action is time barred as a matter of law.
Improper Reply Separate Statement
On October 21, 2022, Defendants filed documents entitled “Reply to Separate Statement of Undisputed Material Facts” and “Response to Plaintiffs’ Additional Material Facts in Opposition of Motion for Summary Judgment.” The Court does not consider these documents. (See e.g. Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 (“The deficiencies carried over to the reply papers, which included a 297–page reply separate statement. There is no provision in the statute for this.”); San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 313 (“While the code provides for reply papers, it makes no allowance for . . . filing a supplemental separate statement. (§ 437c, subd. (b).) This is consistent with the requirement supporting papers and the separate statement be served with the original motion. (§ 437c, subd. (a).).”).)
Plaintiffs’ Evidentiary Objections in Opposition
Plaintiffs’ objections to the declaration of Adam Ainslie – Objection Nos 2 is OVERRULED, the remaining objections are immaterial to the Court’s disposition of the motion. (Code Civ. Proc. § 437c(q).)
Plaintiffs’ objections to the declaration of Harout Keosian are OVERRULED.
Plaintiffs’ objection to the declaration of Richard Berberian is OVERRULED.
Defendants’ Evidentiary Objections in Reply
In their reply and their objections, Defendants contend Plaintiffs’ declarations are sham declarations that should not be considered under D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 and its progeny. “[I]n D'Amico the Supreme Court held that the court could disregard the later-prepared declaration that contradicted a clear and unequivocal admission.” (Turley v. Familian Corp. (2017) 18 Cal.App.5th 969, 982. See also Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1521 (“Properly applied, D’Amico is limited to instances where ‘credible [discovery] admissions ... [are] contradicted only by self-serving declarations of a party.’”) quoting Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465 482.)
Defendants cite Plaintiffs’ interrogatory responses and deposition testimony and contend “in written discovery and depositions Plaintiffs stated they could not remember any conversations or any meetings.” (Reply at 4:6-7. See also Reply at 3:19-26 (“comprehensive written discovery was served on Plaintiffs asking them to specifically identify the attorneys from Keosian Berberian LLP they met and communicated with in 2017, 2018, and 2019 as well as the dates of such meetings and communications. To each interrogatory, Plaintiffs both responded that they lacked sufficient information to respond. Ainslie Decl., at ¶ 17, Ex. 15 (Special Interrogatories Nos. 40, 43-54). Similarly, in deposition, they were each asked if they recalled any meetings with attorneys in 2017 and 2018, to which each stated they could not remember. Specifically, they both testified that they did not recall any conversations from 2017 or 2018 with their attorneys. Ainslie Decl., at ¶ 18, Ex. 16 (Jafari Depo., at 90:15-20, 92:2-17, 92:22-93:2, 95:23- 96:7, 96:16-97:3); ¶ 19, Ex. 17 (Esmaeili Depo., at 52:5-11, 52:15-17, [5]2:24-53:6).”).)
In the cases cited by Defendants, the parties stated one set of facts in their discovery responses and contradicted those facts in their subsequent declarations. (Shin v. Ahn (2007) 42 Cal.4th 482, 500 n.12 (plaintiff’s testimony that “he and defendant made eye contact “as I was cutting up the hill” could not be contradicted by declaration that “the eye contact occurred when he was standing at the location where he was struck.”); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1120-1121 (plaintiff admitted in deposition he “had no evidence Lucas treated him less favorably than a female under comparable circumstances . . . did not know of any instance in which Lucas condoned the failure of Charlene Davidson or Janet Tennison to obey Lucas's orders [and] . . . knew of no instance in which Lucas condoned the failure of any female to obey orders” and therefore could not defeat summary judgment with a conclusory declaration that he was “harassed, and subjected to a hostile work environment due to my gender.”); Worthington v. Rusconi (1994) 29 Cal.App.4th 1488, 1493 fn.4 (statement in plaintiff’s declaration that “[s]ubsequent to March 14, 1991, [he] performed no legal services for plaintiff and had no further contact with her” was “flatly contradicted by a letter Rusconi sent to plaintiff on April 5, 1991.”); Advanced Micro Devices, Inc. v. Great American Surplus Lines Ins. Co. (1988) 199 Cal.App.3d 791, 796 (“Discovery proceedings in this case produced a quantity of evidence on the issue of AMD's knowledge of chlorinated hydrocarbon contamination in the form of internal AMD memoranda and depositions of Michael E. Gingrass, supervisor of environmental operations, and his two immediate supervisors, Chris Mistry, manager of deionized water, and Max L. Chancellor, director of facilities. In opposition to the motion for summary judgment, AMD also filed a series of declarations of Gingrass and other AMD officials. The evidence produced by discovery is essentially in agreement although Chancellor's testimony differs somewhat from other evidence in emphasis and interpretation. The declarations, however, present a sharply different account of events.”).) No such direct contradictions exist here.
A failure to recall specific facts during a deposition or a statement that a party lacks sufficient information to respond are not factual admissions that are contradicted by a factual representation in a subsequent declaration. “[E]vasive answers to written discovery do not constitute a legally sufficient ground for granting a motion for summary judgment . . .” (Ahn v. Kumho Tire U.S.A., Inc. (2014) 223 Cal.App.4th 133, 145.) Moreover, the interrogatories cited request Plaintiffs to state all facts demonstrating that Berberian continued to represent Plaintiffs and to identify every lawyer they met with or communicated with and the dates of each and every such meeting or communication. (Ainslie Decl. Ex. 15.) Plaintiffs’ stated lack of information and belief in response to these interrogatories is not contradicted by declarations stating they were never told about the dismissal or the termination of Berberian’s representation. (Jafari Decl. ¶¶ 5-7; Esmaeili Decl. ¶¶ 5-7.)
Similarly, Plaintiffs’ declarations do not contradict clear and unequivocal admissions of fact in their depositions. In the cited portions of Plaintiff Jafari’s deposition, Jafari indicated she did not recall “any meetings with attorneys regarding [her] personal injury lawsuit in 2017,” (Ainslie Decl. Ex. 16, Jafari Depo. at 90:15-20), could not “remember exactly” how many meetings she attended with lawyers in 2017, but did “remember that we were seeing them,” (id. at 92:2-17), estimated they had one meeting in 2017, but could not remember the date, (id. at 92:22-93:2), did not remember any meetings with lawyers in 2018, (id. at 95:23-96:7), and did not remember any of the conversations she had with lawyers in 2018, but remembered speaking “with them about our court date” in response to whether she could recall any conversations with lawyers in 2017. (Id. at 96:16-97:3.) In the cited deposition testimony of Plaintiff Esmaeili, he testified he did not “remember exactly” any meetings with his attorneys in 2017 or 2018. (Ainslie Decl. Ex. 17, Esmaeili Depo. at 52:5-11, 52:15-17.) When asked “[d]o you recall any conversations with Richard Berberian where he told you that he was no longer going to be your attorney but that Harout was still going to be your attorney?,” Plaintiff Esmaeili responded “Not at all. At the time he called and went with Mitra there, as we got into their door, the first person that we saw was Richard, whose office was right across from the door, and he would come out and take us to the conference room.” (Id. at 52:24-53:10).) Nothing in the cited deposition testimony is directly contradicted by or materially inconsistent with Plaintiffs’ declarations.
Accordingly, the Court shall consider Plaintiffs’ declarations.
Additionally, Defendants’ evidentiary objections refer to D’Amico or contend portions of Plaintiffs’ declarations are “sham” declarations. However, “in D’Amico, the California Supreme Court did not hold that declarations contradicting discovery responses must be ‘excluded.’ Rather, the court stated only that such declarations may be insufficient to create a triable issue of fact.” (Harris v. Thomas Dee Engineering Co., Inc. (2021) 68 Cal.App.5th 594, 604.)
Each of Defendants’ objections to Plaintiffs’ declarations are OVERRULED.
Request for Judicial Notice
Plaintiffs request the Court take judicial notice of documents filed in the underlying action as well as the associated appeal. The Court takes judicial notice of the existence of these documents as well as their legal effect, but not the truth of hearsay statements made therein, and the requests are GRANTED. (Evid. Code § 452(d); Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 (“while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.”).)
Motion for Summary Judgment
Standard
The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial.¿(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In analyzing such motions, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”¿(Hinesley¿v.¿Oakshade¿Town Center¿(2005) 135 Cal.App.4th 289, 294.)¿Thus, summary judgment or summary adjudication is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law.¿(Code Civ. Proc. § 437c(c);¿Villa v.¿McFarren¿(1995) 35 Cal.App.4th 733, 741.) ¿
¿
Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”¿(Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Code Civ. Proc. § 437c(f)(1).)
Relevant Allegations in the Complaint
The complaint alleges “[o]n or about June 3, 2013, Berberian, Berberian Law, Keosian and Keosian Group filed the action entitled Mitra Jafari et al v. McCadden Place LLC et al, Los Angeles Superior Court Case No. BC510830.” (Compl. ¶ 16.) Plaintiffs further allege Defendants failed to keep Plaintiffs informed of the litigation and, “[a]fter repeated continuances and warnings from the Court that the Litigation would be dismissed for unexcused failure to prosecute, none of which were conveyed to Plaintiffs, the Court dismissed the Litigation when Defendants appeared unprepared to commence trial.” (Compl. ¶ 19.) As a result, “[j]udgment was entered on or about August 24, 2018.” (Ibid.)
The complaint alleges “Defendants did not notify Plaintiffs of the entry of judgment until after an appeal was already pending.” (Ibid.) The appeal “was dismissed for failure to file an opening brief on June 11, 2019.” (Id. ¶ 20.) Plaintiffs allege they “brought this action within one year of the discovery of the claim and the conclusion of the representation by Defendants, as extended pursuant to the Emergency Orders of the Governor of the State of California and/or Chief Justice Tani Cantil-Sakauye, and emergency Rules of Court approved by the Judicial Council related to COVID-19 pandemic.” (Compl. ¶ 26.)
Statute of Limitations
Defendants argue Plaintiffs’ claims are untimely. “Generally, statute of limitations issues raise questions of fact that must be tried, however, when the uncontradicted facts are susceptible of only one legitimate inference, summary judgment is proper.” (Kline v. Turner (2001) 87 Cal.App.4th 1369, 1374.)
Legal malpractice claims are governed by Code of Civil Procedure section 340.6, which provides: “[a]n 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.” (Code Civ. Proc. § 340.6(a).) The statute further provides “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.
(5) A dispute between the lawyer and client concerning fees, costs, or both is pending resolution under Article 13 (commencing with Section 6200) of Chapter 4 of Division 3 of the Business and Professions Code. As used in this paragraph, “pending” means from the date a request for arbitration is filed until 30 days after receipt of notice of the award of the arbitrators, or receipt of notice that the arbitration is otherwise terminated, whichever occurs first.
(Code Civ. Proc. § 340.6(a).)
Plaintiffs underlying action was dismissed on May 21, 2018, and reduced to judgment on August 24, 2018. (Ainslie Decl. Ex. 4, 11.) “[T]he limitations period of section 340.6 commences when a client suffers an adverse judgment or order of dismissal in the underlying action on which the malpractice action is based.” (Laird v. Blacker (1992) 2 Cal.4th 606, 609.) Plaintiffs filed this action on June 10, 2020, more than one-year after the dismissal and entry of judgment.
Defendants provide evidence that Plaintiffs were informed of the dismissal in the underlying case within a day or two of the May 21, 2018 dismissal. (Ainslie Decl. Ex. 2, Melkonian Depo. at 98:7-11, 99:22-100:10.) However, this was not done in writing. (Id. at 98:12-13.) While Melkonian sent Plaintiffs an email on April 17, 2019 regarding the filing of documents with the Court of Appeal, it does not provide any information about a dismissal. (Ainslie Decl. Ex. 9.) As noted below, Plaintiffs raise a triable issue of fact as to whether they were notified of the dismissal. (Jafari Decl. ¶¶ 6-7; Esmaeili Decl. ¶¶ 6-7.)
In 2014, Defendant Law Offices of Richard Berberian, APC, formed a partnership with Keosian Law Group, APC, and thereafter “all litigation between the two firms proceeded through the partnership of Keosian Berberian LLP as opposed to the individual law firms.” (Berberian Decl. ¶ 2; Keosian Decl. ¶ 2.) This change was reflected in a substitution of attorney signed by Plaintiffs and filed on April 15, 2014 in the underlying action. (Keosian Decl. ¶ 3, Ex. 19.) The firms unwound this partnership in either 2017, (Ainslie Decl. Ex. 3, Berberian Depo. at 6:18-6:25), or early 2018. (Ainslie Decl. Ex. 2, Melkonian Depo. at 72:16-18.) Berberian did not tell Plaintiffs he was splitting from the joint partnership. (Pltf. Ex. K, Berberian Depo. at 150:12-15.)
Defendant Berberian indicated he stopped working on Plaintiffs’ case prior to the split. (Ainslie Decl. Ex. 2, Melkonian Depo. at 72:19-23; Ainslie Decl. Ex. 3 Berberian Depo. at 43:4-11.) Berberian testified he “remember[s] the clients clearly, verbally understanding that [he] was not their attorney and them acknowledging that.” (Ainslie Decl. Ex. 3, Berberian Depo. at 42:7-11.) Berberian “considered [his] conversation with [Plaintiffs] being -- them being notified that [he’s] not their attorney and then acknowledging that and that their performance or their conduct moving forward as a knowledge and agreement of that.” (Id. at 42:17-24.) Berberian was not communicating with Plaintiffs in 2018 or 2017 and Plaintiffs “knew [he] was not their attorney.” (Id. at 43:4-11.) Melkonian also stated he informed Plaintiffs that Berberian was no longer working on the case and, when the split occurred, that Berberian was no longer in their office. (Ainslie Decl. Ex. 2, Melkonian Depo. at 74:13-24.)
“[F]or purposes of Code of Civil Procedure section 340.6, subdivision (a)(2), in the event of an attorney's unilateral withdrawal or abandonment of the client, the representation ends when the client actually has or reasonably should have no expectation that the attorney will provide further legal services. That may occur upon the attorney’s express notification to the client that the attorney will perform no further services . . . After a client has no reasonable expectation that the attorney will provide further legal services, however, the client is no longer hindered by a potential disruption of the attorney-client relationship and no longer relies on the attorney's continuing representation, so the tolling should end.” (Gonzalez v. Kalu (2006) 140 Cal.App.4th 21, 30-31 (citations omitted).)
In opposition, Plaintiff Jafari provides a declaration indicating “Richard Berberian never told [Jafari] orally or in writing that he was no longer representing [Jafari,] and he never requested or received [Jafari’s] oral or written consent to withdraw from the McCadden Case.” (Jafari Decl. ¶ 5.) Additionally, Plaintiffs “regularly included Mr. Berberian’s name in our email to our lawyers throughout the case and Mr. Berberian would almost always come out of his office to greet us as his clients whenever we visited his office.” (Ibid.) Plaintiff Jafari states she “first learned of the dismissal of the McCadden Case in or about August of 2019 when [her] physician, Dr. Babaali, told [her] and Mr. Esmaeili that one of [her] lawyers said [her] case had been dismissed during a discussion on an unrelated matter,” and Plaintiff “was never told by [her] lawyers or anyone at their firm that the McCadden Case had been dismissed.” (Id. ¶¶ 6-7.) Similarly, Plaintiff Esmaeili provides a declaration with the same averments. (Esmaeili Decl. ¶¶ 4-8.)
Berberian also never formally substituted out of the underlying action or sought to be relieved as counsel. (Pltf. Ex. K, Berberian Depo. at 149:12-150:3.) The Notice of Entry of Judgment in the underlying case was served upon Harout Keosian and Richard Berberian on September 14, 2018 as Plaintiffs’ counsel of record. (Pltf. Ex. F-G.) On November 1, 2018, Harout Keosian signed Notice of Disassociation of Counsel noting “Harout G. Keosian and Richard Berberian, of Keosian Berberian, LLP will continue to represent Plaintiffs in this matter.” (Pltf. Ex. M.)
Based upon the evidence described above, there are triable issues of fact precluding summary judgment regarding when Plaintiffs learned of the dismissal, when the moving Defendants’ representation of Plaintiffs concluded under California law, and whether Defendants concealed the dismissal from Plaintiffs. The Court cannot determine, as a matter of law, that Plaintiffs had or reasonably should have had no expectation that Berberian was still their counsel. Defendants do not cite any authority suggesting that a lack of communication from their counsel is sufficient to put Plaintiffs on notice that defendants may have been negligent in their representation, resulting in a dismissal of their case. (Reply at 7:10-18.) The undisputed facts do not establish Plaintiffs were on sufficient notice of the facts constituting their cause of action more than a year prior to the filing of the complaint. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 803 (“under the delayed discovery rule, a cause of action accrues and the statute of limitations begins to run when the plaintiff has reason to suspect an injury and some wrongful cause.”).)
August 2019, the date Plaintiffs indicate they learned of the dismissal, is less than one year from the date Plaintiffs filed this action. Therefore, the Court finds triable issues of fact as to whether Plaintiffs’ claims are time barred.
Plaintiffs’ arguments regarding a lack of capacity and estoppel are not supported by any facts or analysis. (Opp. at 12:7-13:23. See Fenton v. City of Delano (1984) 162 Cal.App.3d 400, 410 (“A point totally unsupported by argument and authority may be rejected by the reviewing court without discussion.”).) Plaintiffs do not provide any evidence they were suffered from a legal or physical disability that restricted their ability to commence legal action and Plaintiffs appear to admit they did not suffer from such an infirmity. (See Jafari Decl. ¶ 9, Esmaeili Decl. ¶ 9.) Additionally, these arguments are immaterial to the Court’s disposition of the motion.
