Judge Teresa A. Beaudet, Case Number: 20STCV05310, Date: 2024-06-20 Tentative Ruling

On February 10, 2020, Plaintiff Nahideh Harooni (“Plaintiff”) filed this action against Defendant Law Offices of David S. Lin a Professional Corporation. Plaintiff filed the operative First Amended Complaint (“FAC”) on December 10, 2020 against Defendant David S. Lin, individually and dba Law Offices of David S. Lin, APC. The FAC alleges causes of action for (1) breach of contract, and (2) general negligence. Law Offices of David S. Lin (“Defendant”) filed an answer to the FAC on January 14, 2021.

In the FAC, Plaintiff alleges, inter alia, that on or about November 27, 2017, an agreement was made between Plaintiff and “David S. Lin, Law Offices of David S. Lin, APC.” (FAC, p. 3.) Plaintiff alleges that “Defendant was retained to sue a dentist for malpractice on LASC BC 665427.” (Ibid.) In the first cause of action for breach of contract, Plaintiff alleges that on or about December 7, 2018, Defendant breached the agreement because “Defendant failed to retain an expert in a timely manner.” (Ibid.) Plaintiff alleges that “[a]s a result of that failure, Defendant failed to sufficiently address the Separate Statement of Facts in Dispute attached to Defendant’s Motion for Summary Judgment that should have been based on expert witness testimony.” (Ibid.)

In the second cause of action for general negligence, Plaintiff similarly alleges, inter alia, that on December 7, 2018 “Defendant failed to retain an expert in a timely manner. As a result of that failure, Defendant failed to sufficiently address the Separate Statement of Facts in Dispute attached to Defendant’s Motion for Summary Judgment that should have been based on expert witness testimony. Defendants owed Plaintiff a duty as her attorney of record to timely prepare for trial and ability [sic] to respond to a Motion for Summary Judgment based on the expert witness that should have been retained at the beginning of the case. Defendants breached that duty owed to Plaintiff by early preparation of the case with the aid of an expert [sic].” (FAC, p. 5.)

On May 14, 2024, a minute order was issued in this action providing, inter alia, that “[t]he Cause is called for trial…Plaintiff waives opening statement. Defendant makes and [sic] oral and written motion for nonsuit. The Court reviewed the motion for nonsuit filed after Plaintiff waived opening statement. Defendant failed to cite any California Authorities regarding the need for expert testimony as to Plaintiff’s legal malpractice cause of action. Defendant also did not address Plaintiff’s breach of contract cause of action. The motion is denied without prejudice.”

On May 21, 2024, a minute order was issued in this action providing, inter alia, that “[t]rial resumes from May 14, 2024 with all parties and counsel present as heretofore. Defendant makes a[n] oral and written Motion for Nonsuit…The Court sets a briefing schedule for the Motion for Nonsuit. Opposition to the Motion is due May 28, 2024. The reply is due May 31, 2024. Hearing on Motion - Other for Nonsuit is scheduled for 06/10/24 at 10:00 AM in Department 50 at Stanley Mosk Courthouse.”

Defendant now moves for an order granting nonsuit in Defendant’s favor and against Plaintiff. Plaintiff opposes.

Objection No. 1: sustained. Plaintiff does not appear to show that the Court denied two previous motions for nonsuit filed by Defendant.

Pursuant to Code of Civil Procedure section 581c, subdivision (a), “[o]nly after, and not before, the plaintiff has completed his or her opening statement, or after the presentation of his or her evidence in a trial by jury, the defendant, without waiving his or her right to offer evidence in the event the motion is not granted, may move for a judgment of nonsuit.”[1] As set forth above, the Court’s May 14, 2024 minute order in this case provides, inter alia, that “Plaintiff waives opening statement.”

Pursuant to Code of Civil Procedure section 581c, subdivision (b), “[i]f it appears that the evidence presented, or to be presented, supports the granting of the motion as to some but not all of the issues involved in the action, the court shall grant the motion as to those issues and the action shall proceed as to the issues remaining. Despite the granting of the motion, no final judgment shall be entered prior to the termination of the action, but the final judgment in the action shall, in addition to any matters determined in the trial, award judgment as determined by the motion herein provided for.” In addition, “[i]f the motion is granted, unless the court in its order for judgment otherwise specifies, the judgment of nonsuit operates as an adjudication upon the merits.” (Code Civ. Proc., § 581c, subd. (c).)

Defendant asserts that “a motion for nonsuit should be granted because Plaintiff has failed to and cannot provide any evidence of sufficient substantiality to support a judgment in favor of Plaintiff and against Defendant Lin in this action.” (Mot. at p. 8:22-24.) Defendant asserts that “Plaintiff HAROONI has failed to and…cannot present any relevant, material and admissible evidence required to prove up any…alleged…professional negligence/breach of contract as levied against Defendant LIN in this Action…” (Mot. at p. 2:20-22.) Defendant states that here, Plaintiff failed to “timely designate[] and retain[] a proper Legal Negligence or Legal Malpractice expert in this present Action…” (Mot. at p. 7:12-13.)

Defendant cites to Lipscomb v. Krause (1978) 87 Cal.App.3d 970, 975, where the Court of Appeal noted that “[i]t is the current view in California that the legal malpractice suit is but one variety of negligence action and is governed by the general doctrines of pleading and proof prevailing in negligence actions…These questions of fact in a case such as the one at bench require expert evidence. The issue of whether and when expert evidence is required in a legal malpractice action appears to have been resolved in the affirmative by Wright v. Williams (1975) 47 Cal.App.3d 802 [121 Cal.Rptr. 194].”

In Lipscomb Court found that “[g]enerally, the creation of the attorney-client relationship imposes upon the lawyer the obligation to represent his client with such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake. The standard is that of members of the profession in the same or a similar locality under similar circumstances…Plaintiffs’ proof relative to these issues generally requires the testimony of experts as to the standards of care and consequences of breach. Expert evidence in a malpractice suit is conclusive as to the proof of the prevailing standard of skill and learning in the locality and of the propriety of particular conduct by the practitioner in particular instances because such standard and skill is not a matter of general knowledge and can only be supplied by expert testimony…We conclude that the trial court did not err in granting the motion for nonsuit based on its conclusion that legal consequences of the facts by which Lipscomb sought to establish malpractice were not within the common knowledge of laymen and required expert testimony.” (Lipscomb v. Krause, supra, 87 Cal.App.3d at p. 976 [internal quotations and citations omitted].)

Defendant asserts that here, “none of Plaintiff’s witnesses, i.e., Plaintiff HAROONI herself and the two dental expert witnesses retained and designated to testify as witnesses at Trial of this Action have any of the requisite knowledge to testify as to the standard of care against which Defendant LIN’s professional acts carried out in his prior handling of the underlying case can be measured, which…remains a matter within the scope of a legal negligence expert only.” (Mot. at p. 10:14-19.)

In the motion, Defendant asserts that he did “retain and hire an expert witness, Dr. Alan Zweig…to review the subject dental records of Plaintiff HAROONI…” (Mot. at p. 4:21-22.)

Defendant states in the motion that Dr. Zweig “determined that all of Dr. Aghaloo’s dental work and care as rendered to Plaintiff HAROONI in the conduct of [the] dental procedure fell within the scope of the standard of care within the profession.” (Mot. at p. 5:7-9.) Defendant asserts that here, “whether Defendant Attorney Lin timely retained an expert witness on Plaintiff HAROONI’s dental malpractice claims or whether Defendant LIN has a duty to engage in expert witness shopping to find an expert who is willing to offer a contrary finding or determination on the issue of dental professional negligence…constitutes an issue and legal determination which requires an [e]xpert in the field of legal negligence to render an expert opinion on…” (Mot. at p. 11:21-27 [internal quotations omitted].)

In the opposition, Plaintiff does not dispute that she did not designate an expert in this action for purposes of establishing legal malpractice. Rather, Plaintiff asserts that “the matter may proceed without an expert witness because Defendant’s negligence is within the scope of Plaintiff’s ‘common knowledge.’” (Opp’n at p. 2:9-10.)

Plaintiff cites to, inter alia, Ryan v. Real Estate of Pacific, Inc. (2019) 32 Cal.App.5th 637, 643, where the Court of Appeal noted that the “common knowledge” theory “states an expert witness is not needed to establish the standard of care in a professional negligence cause of action when the conduct required by the particular circumstances is within the common knowledge of a layman.” Plaintiff contends that here, “[t]he issues are simple: 1) defendant did not designate an expert in the matter; 2) had no expert to offer evidence in opposition to a Motion for Summary Judgment; 3) resulting in, the grant of the MSJ because for [sic] inability to raise a triable issue of fact. This three part analysis is not complex and already established by the record from the prior action.” (Opp’n at p. 3:1-4.) Plaintiff asserts that “Plaintiff as a layperson, clearly understood why the court ruled the way it did, and that understanding does not require an expert witness.” (Opp’n at p. 3:17-18.)

But Plaintiff does not appear to dispute Defendant’s statement that he did hire an expert witness in the underlying action, Dr. Zweig, who determined that no professional dental negligence existed. (Mot. at p. 5:10.) Plaintiff asserts that “[w]hen Defendant discovered his expert was not favorable to Plaintiff’s position, and had a conflict with defendants (prior affiliation(s) with medical providers), he had an obligation to pursue other experts and did not.” (Opp’n at p. 5:2-4.) However, as noted by Defendant, Plaintiff does not cite any legal authority in support of this assertion. Moreover, Plaintiff does not cite any legal authority demonstrating that such obligation purportedly required by the circumstances is within the “common knowledge of laymen.”

Plaintiff also does not appear to show that it is “within the common knowledge of laymen” as to whether Defendant should have found another expert “willing to offer a contrary finding or determination on the issue of dental professional negligence.” (Mot. at p. 11:23-24.) As discussed, Ryan v. Real Estate of Pacific, Inc., supra, 32 Cal.App.5th at page 643, cited by Plaintiff, provides that the “common knowledge” theory “states an expert witness is not needed to establish the standard of care in a professional negligence cause of action when the conduct required by the particular circumstances is within the common knowledge of a layman.”

Plaintiff also asserts that “[b]ecause Defendant failed to retain an expert witness early on in the litigation, there was no expert testimony offered to raise a triable issue of fact in opposition to a Motion for Summary Judgment. The ‘MSJ’ was entered against Plaintiff on her then action.” (Opp’n at p. 4:21-23.) But Plaintiff does not appear to show that the issue of whether Defendant should have “retaine[d] an expert witness early on in the litigation” is “within the common knowledge of laymen.” (See Opp’n at p. 4:21.)

In addition, in the reply, Defendant asserts that “the legal negligence issue in this case…does not fall within a layperson’s common knowledge such that a legal negligence expert witness is required…” (Reply at p. 7:18-20.) Defendant cites to O’Shea v. Lindenberg (2021) 64 Cal.App.5th 228, 230-231, where the Court of Appeal noted that “[t]his is a legal malpractice case. Plaintiff Michael O’Shea hired Attorney Susan F. Lindenberg to represent him in a child support action. After O’Shea’s ex-wife was awarded what he believed to be an excessive amount of child support, he filed this action. His most significant allegation of negligence was that Lindenberg should have retained a forensic accountant. The case went to trial and the jury concluded, in a special verdict, that Lindenberg owed a professional duty of care that she breached. The jury was unable to agree, however, on whether the breach of duty caused him damage, and the judge declared a mistrial. Lindenberg moved for a directed verdict on the grounds that the evidence presented at trial did not support a finding of causation, specifically, that without the alleged malpractice, O’Shea would have received a better result. The trial court agreed and directed a verdict in Lindenberg’s favor. After reviewing the evidence in accordance with the applicable standard of review, we find O’Shea failed to present sufficient testimony on the issue of causation, and therefore we affirm the judgment.” The O’Shea Court noted as follows:

There is an exception when the alleged malpractice is so utterly egregious and obvious that no expert testimony is needed. Goebel v. Lauderdale (1989) 214 Cal.App.3d 1502 [263 Cal. Rptr. 275] is a leading contemporary case recognizing this exception…There, a bankruptcy attorney—but one who, nonetheless, still “handle[d] other legal matters”—specifically advised a contractor to collect $15,000 from a job on which he was working even though he himself owed the laborers and material suppliers, and then stop work on the project. (Goebel, at p. 1505.) The contractor followed the advice and within about a month filed for bankruptcy. (Ibid.) But there was a substantial problem with the attorney’s advice—it constituted a felony under Penal Code section 484b. When the contractor was prosecuted, he sued the attorney for legal malpractice. The contractor’s expert witness was not a bankruptcy specialist and could not testify about attorneys as a general matter. In reversing a subsequent nonsuit, the appellate court said the malpractice was “so clear,” or readily obvious from the facts of the case, that no expert was necessary. (Goebel, at pp. 1508–1509; see Wilkinson v. Rives, supra, 116 Cal.App.3d at pp. 647–648; Wright v. Williams, supra, 47 Cal.App.3d at pp. 810–811.)

The case O’Shea repeatedly cites here is another example of this exception, Stanley v. Richmond (1995) 35 Cal.App.4th 1070 [41 Cal. Rptr. 2d 768]. In that case, the plaintiff (who herself was a bankruptcy attorney) was going through a divorce with a husband who had a VA (Department of Veterans Affairs) pension. The plaintiff had also completed a buyout of her partnership from her previous law firm. Her family law attorney advised her to cede her entire interest in the VA pension as a way to help her stay in her house, despite the fact that even keeping a mere $1 interest in it would have made her eligible for lifetime health insurance “at very low cost.” (Id. at p. 1083.) The family law attorney also failed to advise her of the “immediate and specific” tax consequences of the partnership buyout. (Id. at p. 1095.) Despite the lack of expert testimony on the standard of care, the appellate court reversed a nonsuit. As to the VA pension, the court stated a “few hours” of research would have shown that even a nominal interest in the pension would have allowed her to keep those “valuable benefits.” (Id. at pp. 1094–1095.) As to the tax liability, the court stated the lack of research, “coupled” with evidence the family law attorney was “unnecessarily rushing to finalize” a settlement, was enough for the plaintiff’s claim to survive the absence of expert testimony…” (O’Shea v. Lindenberg, supra, 64 Cal.App.5th at pp. 236-238.)

Defendant notes that here, “[u]nlike Goebel v. Lauderdale, Plaintiff HAROONI did not and has not alleged that Defendant LIN gave her wrongful legal advice and caused her violation of statutes. As well, unlike Stanley v. Richmond, this case is not about any deficient legal advice rendered without basic legal research.” (Reply at p. 8:15-17.)

As discussed, the issues here involve, inter alia, whether Defendant should have retained another expert after Dr. Zweig determined that Dr. Aghaloo’s dental work fell within the standard of care, and whether Defendant should have retained an expert witness early on in the litigation. The Court does not find that Plaintiff has demonstrated that the purported conduct required by Defendant in the underlying action is within the common knowledge of a layman. As discussed above, “[t]he general rule is that expert evidence is required to establish legal malpractice.” (O'Shea v. Lindenberg, supra, 64 Cal.App.5th at p. 236.)

In light of the foregoing, the Court grants Defendant’s renewed motion for nonsuit.

Based on the foregoing, Defendant’s renewed motion for nonsuit is granted. Defendant is ordered to file and serve a proposed judgment within 10 days of the date of this Order.

[1]In Lingenfelter v. County of Fresno (2007) 154 Cal.App.4th 198, 208, the Court of Appeal “conclude[d] that the words and punctuation used in section 581c(a) produce a plain and unambiguous meaning—specifically, a superior court conducting a court trial has the authority to grant a motion for nonsuit after the plaintiff’s opening statement.”

Superior Court of California

County of Los Angeles

Department 50