Case Number:?BC611304????Hearing Date:?January 10, 2018????Dept:?56
Case Name:????????????????Tavana v. The Cochran Firm, et al.
Case No.:????????????????????BC611304
Matter:????????????????????????Defendants? Motion for Summary Judgment/Adjudication
Tentative Ruling:??Summary judgment and adjudication are denied.?
Plaintiff Ali Tavana filed this legal malpractice action against Defendants The Cochran Firm and Robert Torres. Defendants move for summary judgment or adjudication.
Evidence ?
Both parties have requested judicial notice of court records. All RJNs are granted.
Plaintiff objects to the Torres declaration; all objections are overruled. Defendants object to the King declaration and statements in RJN Ex. 6; all objections are overruled.
Causation ?
Plaintiff?s claims concern the handling of an underlying employment action (BC494694) in which Plaintiff had been represented by an attorney who engaged in repeated discovery violations. Defendants argue that by the time they were substituted into the action, Plaintiff?s case was in dire condition because the court was set to hear a motion for terminating sanctions. Defendants substituted as counsel to oppose the motion for terminating sanctions, rectify outstanding discovery, and then try the matter. Defendants contend that because of the actions and omissions of Plaintiff?s prior counsel, the motion for terminating sanctions was granted and Plaintiff?s case was dismissed. Defendants contend Plaintiff cannot establish that his losses were caused by their conduct. See Viner v. Sweet (2003) 30 Cal.4th 1232, 1241; Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 165.
While Defendants have met their initial burden, Plaintiff has presented evidence which supports triable issues of fact. Plaintiff has shown that the motion for terminating sanctions was continued based on Defendants? pledge to rectify all outstanding discovery problems (RJN Ex. 5); the motion was ultimately granted because Defendants failed to provide all outstanding discovery to opposing counsel (RJN Ex. 7); and Plaintiff was at all times cooperative in working with Defendants to provide the requested discovery (RJN Ex. 6). This is sufficient to support a triable issue that Defendants were negligent and their negligence contributed to Plaintiff?s losses.
Defendants argue that Plaintiff could not have prevailed at trial because he faced issue sanctions as a result of his prior attorney?s failure to respond to discovery. Plaintiff has shown that this is speculative because issue sanctions were never issued or seriously considered by the court; the court merely admonished Plaintiff that further discovery violations could lead to issue or terminating sanctions (RJN Ex. C). In addition, the evidence referred to above supports a triable issue that Defendants? conduct contributed to the court?s ultimate ruling on discovery sanctions.
Defendants argue that Plaintiff could not have prevailed at trial because he and his prior attorney never propounded discovery and trial was imminent at the time the case was dismissed. Plaintiff has supported triable issues on this question, by presenting evidence that he had personal knowledge of various forms of harassment and he could have called on several witnesses and medical providers to corroborate his account of events and injuries (King Decl. ? 2).
Finally, in their Reply Defendants argue that Plaintiff has failed to present evidence as to every element of his claims in the underlying action. But Defendants did not move for summary adjudication on this ground, did not meet their initial burden of showing that Plaintiff had insufficient evidence, and did not affirmatively show that Plaintiff could not support his claims.
Statute of Limitations ?
Defendants move for summary judgment as to The Cochran Firm on the ground that Plaintiff?s claims are time barred. Defendants have shown that Torres left Cochran Firm on December 31, 2014, and then represented Plaintiff on his own. Under cases such as Beal Bank v. Arter & Hadden (2007) 42 Cal.4th 503, 508, the statute of limitations against Cochran Firm commenced at the time of Torres? departure and the action was filed more than one year after that date. See CCP ? 340.6(a)(2).
While Defendants have met their initial burden, Plaintiff has presented evidence which supports triable issues of fact. Plaintiff has shown that Torres merely filed a notice that his address had changed. No substitution of counsel or other action was taken to relieve Cochran Firm as counsel of record for Plaintiff until February 27, 2015 when Plaintiff was formally discharged. In addition, Plaintiff has presented evidence that he did not discover negligent conduct by Torres and Cochran Firm until April 2015. This supports a triable issue that the period of limitations did not commence until that time. See CCP ? 340.6(a)(2) (a malpractice action ?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?).
Ruling ?
The motion for summary judgment / adjudication is denied on all grounds.