Lee v. Stearn CA2/4 ( 2013 )

Filed 8/2/13 Lee v. Stearn CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
KYUNG RYUN LEE, B244790
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC460556)
v.
MARTIN STEARN et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County, Deirdre
Hill, Judge. Affirmed.
Law Offices of Andrew Kim and Andrew Kim for Plaintiff and Appellant.
No appearance for Defendants and Respondents.
__________________________________
Kyung Ryun Lee appeals from a judgment against her after a court trial of her
legal malpractice action against Martin Stearn and others. She claims the trial court erred
in denying her a continuance for proper preparation for trial, and that it erred in finding
no liability based on her failure to produce an expert witness at trial. We find no error
and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
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We glean our factual statement from the limited record provided on appeal. Ms.
Lee retained attorney Stearn to represent her in a dental malpractice case against Sang
Don Choi. She told Stearn she suffered injury during dental treatment by Dr. Choi in
December 2007. Stearn filed an action against Dr. Choi on her behalf in Los Angeles
Superior Court. In February 2010, Dr. Choi moved for summary judgment. According
to Stearn, he attempted to contact all the healthcare workers who treated Ms. Lee for her
alleged injuries in the underlying case, but none was willing to act as an expert witness or
sign a declaration to oppose the summary judgment motion. Stearn did not file
opposition to the motion, and did not appear at the hearing on the motion. Summary
judgment was granted and the dental malpractice action was dismissed.
In April 2011, Ms. Lee, in propria persona (pro. per.), brought this legal
malpractice action against Stearn and others. On January 30, 2012, defendants moved
for summary judgment on the ground that there was no expert willing to provide a
declaration to oppose the motion for summary judgment in the underlying dental
malpractice case.
Ms. Lee, still in pro. per., filed opposition. In her declaration, she stated that she
had attempted to obtain declarations of various experts, but some had moved away and
the University of Southern California School of Dentistry would not help her, which she
believed was a matter of policy. She visited Daniel Chang’s clinic to ask him to become
her expert witness. He refused to sign the declaration, but “I think if this Court issue a
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The record does not contain any pleadings or rulings from the dental malpractice
case, nor does it contain the complaint or the summary judgment motion in the legal
malpractice case.
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subpoena, he will come to this Court at the trial to become an expert witness.” She also
submitted the declaration of a licensed acupuncturist who had treated Ms. Lee for pain
from her teeth. According to that declaration, Ms. Lee had explained that the damage
was caused by dentist Sang Don Choi, and “After considering all other possible causes, I
could not find or infer that there have been any other causes for her injuries, and I opine
that her explanation is credible.” Ms. Lee indicated a third witness, Dr. Cristina Lim,
would not sign a declaration but told her that if ordered by a judge, she would come to
court as an expert witness.
The court took the matter under submission and then denied the motion.
“Defendants do not include letters or other records of correspondence where dental
professionals refused requests to offer expert opinions, nor do Defendants declare the
names of the professionals they supposedly contacted or how many they contacted. The
only letter Defendants include with the instant motion requests an interview with a dental
professional that Plaintiff saw after the alleged medical malpractice by Choi. It does not
indicate that the dental professional refused to offer expert testimony. Furthermore, this
is evidence of correspondence with only one professional. It does not support the
statement that Defendants contacted and were refused by all dental professionals that
treated Plaintiff.”
On May 7, 2012, the date set for the final status conference, Ms. Lee told the
court she had retained an attorney. She told the court if she had one more month, she
would bring the attorney; the court reminded her that trial was set for May 15. The court
continued the status conference to May 14, with May 15 for trial. On May 14, an
attorney from the law firm of Jeong & Likens appeared as counsel for Ms. Lee. The
court ordered the parties to arrange a mandatory settlement conference, set August 16 for
the final status conference, and continued the trial to August 30.
On July 26, 2012, Chan Yong Jeong moved to be relieved as counsel “based upon
my client’s refusal to communicate and breach of our representation agreement.” Ms.
Lee substituted herself in as counsel, and then on August 16, substituted in Timothy
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Yoon Chung as counsel. Counsel did not appear that date for the final status conference,
and the court continued that conference to August 30, to be held just prior to the trial.
On August 30, Ms. Lee substituted in Andrew Kim as counsel. The court
proceeded with the trial. Ms. Lee testified on her own behalf. Mr. Stearn testified and
was cross-examined regarding his efforts to obtain an expert’s opinion to counter the
summary judgment motion brought in the underlying dental malpractice action. The
court took judicial notice of the file in that underlying case. Ms. Lee failed to subpoena
or produce any witnesses. In its minute order the court stated: “Plaintiff does not have a
professional expert to testify as to the standard of care in the dental practice community
which is necessary to establish that a defense could have been marshaled to the summary
judgment motion in the underlying action. The court therefore finds that in providing no
expert opinion, Plaintiff has necessarily failed to show any disputed facts could have been
presented for Plaintiff herein to have prevailed on the underlying motion for summary
judgment . . . . [¶] The Court finds Plaintiff has failed to meet the burden of proof on
professional negligence. The Court further finds that Plaintiff is consequently unable to
prove legal malpractice. Judgment is rendered in favor of the defendant.”
Ms. Lee filed a timely appeal from the judgment. There is no appearance by
defendants on appeal.
DISCUSSION
I
Ms. Lee argues that the trial court should have granted a reasonable continuance of
trial to allow her new counsel to prepare for trial and procure an expert witness. She
claims she was the victim of having three different attorneys within 30 days of trial,
which caused her legal representation to be fragmented and disjointed. It has long been
settled that a trial court has wide discretion to grant or deny a continuance, and its
decision will not be disturbed unless a clear abuse of discretion is shown. (Agnew v.
Parks (1963) 219 Cal.App.2d 696, 700.)
The court granted Ms. Lee a reasonable continuance from the original trial date of
May 15 to the end of August. The fact that Ms. Lee changed attorneys three times during
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that extended period, including twice in the last two weeks, did not require the court to
grant additional time for trial preparation. (See Agnew v. Parks, supra, 219 Cal.App.2d
at pp. 701-702.) There was no abuse of discretion.
II
Ms. Lee claims the court erred by failing to weigh the evidence of legal
malpractice. To prevail in a legal malpractice action, it is not enough to show that the
attorney erred. (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 166.) The plaintiff
must also establish that, but for the alleged legal malpractice, the trial or settlement of the
underlying lawsuit would have resulted in a better outcome. (Ibid.) To prevail on her
claim for legal malpractice, Ms. Lee first had to establish that “but for” defendant
Stearns’ negligence, she would have obtained a better result in the underlying dental
malpractice case. That was the court’s focus at trial.
“A physician’s [or dentist’s] standard of care is the key issue in a malpractice
action and can only be proved by expert testimony unless the circumstances are such that
the required conduct is within the layperson’s common knowledge.” (Curtis v. Santa
Clara Valley Medical Center (2003) 110 Cal.App.4th 796, 800; see also Avivi v. Centro
Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) This case does not
fall within the layperson’s knowledge exception. Defendant Stearns presented evidence
that in the underlying case, he attempted to obtain expert opinion to raise a triable issue
of fact as to the standard of care in the relevant community and whether the defendant
dentist, Dr. Choi, met that standard of care. He was unable to secure such an expert
witness. Apparently the trial court credited his testimony. The trier of fact is entitled to
accept or reject all the testimony of any witness; on appeal, this court will not reweigh the
evidence or pass upon a witness’s credibility. (Kelly-Zurian v. Wohl Shoe Co. (1994)
22 Cal.App.4th 397, 409.)
Ms. Lee presented no witnesses—expert or lay—who could or would have
testified to the standard of care in the relevant dental community and whether Dr. Choi
failed to meet that standard. Without such evidence, she did not meet her burden to prove
that attorney Stearns could have succeeded in defending against Dr. Choi’s motion for
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summary judgment. There was thus no evidence that, but for attorney Stearns’ failure to
oppose the summary judgment, Ms. Lee could have successfully defended against
summary judgment and prevailed in her dental malpractice case.
As the trial court properly noted, because Ms. Lee failed to meet the burden of
proof on professional negligence in the underlying action, she is consequently unable to
prove legal malpractice. The court properly found in favor of defendants.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
MANELLA, J.
SUZUKAWA, J.
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