Deuschel v. Michelman & Robinson CA2/8 ( 2014 )

Filed 10/6/14 Deuschel v. Michelman & Robinson CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 EIGHT
MICHAEL DEUSCHEL, B245083
Plaintiff and Appellant (Los Angeles County
, Super. Ct. No. BC471655)
v.
MICHELMAN & ROBINSON, LLP, et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Richard Rico, Judge. Reversed.
Michael Deuschel, in pro per. for Appellant.
Michelman & Robinson, Marc R. Jacobs and Robin James for Respondents.
__________________________
Michael Deuschel appeals from the trial court’s judgment sustaining the demurrer
by his former attorneys (Michelman & Robinson, LLP; Marc Jacobs; Kira Sue Masteller;
and, Ryan Boyd) to his complaint against them for legal malpractice. The court sustained
the demurrer because it concluded Deuschel’s complaint was untimely. Because the
court misapplied the continuing representation doctrine, we reverse.
FACTS AND PROCEEDINGS
Because this appeal is from a demurrer, we rely on the allegations of appellant’s
complaint without judging their veracity. In 2007, appellant Michael Deuschel lent
$50,000 to Edward and Donna Vodicka and their company; we refer collectively to the
Vodickas and their company, who are not parties to this appeal, as the Vodickas. When
the Vodickas defaulted on the loan and damaged personal property that appellant had
stored with them, appellant hired respondent law firm Michelman & Robinson, LLP, to
sue the Vodickas for damages. In November 2008, Michelman & Robinson, LLP, filed a
complaint against the Vodickas. The complaint alleged the Vodickas had obtained the
loan from appellant through fraud. The Vodickas did not answer appellant’s complaint,
and the court entered their default.
In August 2010, respondent Michelman & Robinson filed pleadings with the court
to prove-up appellant’s damages. The pleadings were defective, however, in several
ways, the particulars of which are not important here other than they did not seek
recovery of the entire amount of almost $400,000 in damages to which appellant believed
he was entitled from the Vodickas’ fraud. Relying on respondents’ deficient pleadings,
the court entered judgment for appellant on August 23, 2010, of only $78,818, consisting
of $50,000 for the unpaid loan, $13,300 for conversion of his property, and the rest in
costs and statutory attorney’s fees.
One day later on August 24, 2010, respondent attorney Marc Jacobs of Michelman
& Robinson sent an email to appellant informing him of the judgment entered the
previous day. Jacobs wrote to appellant: “We are pleased to report that the Court entered
a Judgment in your favor on 8/23/10. A copy of this Judgment is attached. We were
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provided with a copy of this Judgment at the hearing this morning when we arrived at
Court. The Court entered a Judgment in the amount of $78,818.11 . . .” The following
day, appellant responded with an email expressing his displeasure with the damage
award. He wrote to Jacobs: “Thanks for this email but I am stunned. I asked to attend
the hearing as I wanted to speak with the judge but you never notified me of its date and
time. Also, why is the judgment so low? Why no punitive damages? Why only $2,000
in attorney fees when I spent more than $16,000? Were the defendants found guilty of
fraud to protect the judgment against bankruptcy, as discussed? Please call me so we
may discuss.” Jacobs replied with another email, stating the judgment was “an
outstanding outcome relative to your actual damages under any circumstances.”
Two weeks later on September 7, 2010, appellant at his request met with attorney
Jacobs and respondent attorney Kira Sue Masteller to express his disappointment with the
damage award. During the meeting, Jacobs and Masteller assured appellant they had
represented him competently. Appellant alleges, however, that they misled him by not
telling him that their deficient prove-up pleadings were the reason his damage award was
smaller than he expected. During the meeting, Jacobs promised to inform appellant when
respondents completed filing and serving notice of entry of judgment on the Vodickas so
that he could begin collection proceedings on the judgment.
On September 23, 2010, respondents served and filed notice of entry of judgment,
but did not inform appellant that they had done so. Instead, one month later on
October 22, 2010, appellant sent an email to Jacobs asking about the status of the notice
of entry. Appellant’s email asked, “Hi Marc, I was just wondering, did you send the
Vodickas a notice of service of judgment (if that’s the correct name)? Thanks, Michael.”
Jacobs replied that notice had been served. He wrote to appellant, “Yes, everything was
served at all possible addresses, including those additional that you forwarded.”
Four days short of one year later, appellant filed on October 18, 2011, his legal
malpractice complaint against respondents. The gist of his operative second-amended
complaint was that respondents’ defective prove-up to the court resulted in his not
recovering from the Vodickas all the damages to which he was entitled.
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Respondents demurred to appellant’s second amended complaint. Their demurrer
asserted that appellant knew, or should have known, by the time he received respondents’
email on August 25, 2010, informing him of entry of the $78,818 judgment that he had
been injured by the judgment’s purported inadequacy. Hence, the one-year statute of
limitation for legal malpractice began to run no later than August 25, 2010. Their
demurrer conceded for the purposes of their motion that the statute of limitation was
tolled, however, while they continued to represent appellant for about one month
afterward until September 23, 2010, when they filed notice of entry of judgment.1 Thus,
by the very latest according to respondents, appellant had until one year later on
September 23, 2011, to file his legal malpractice complaint. Because appellant filed his
complaint on October 18, 2011, it was untimely.
Appellant opposed the demurrer. He asserted that respondents’ representation of
him continued at least until his email inquiry on October 22, 2010, on the status of
service and entry of notice of judgment. Consequently, his complaint less than one year
later on October 18, 2011, was timely.
The trial court sustained the demurrer. The court found appellant’s cause of action
for legal malpractice accrued when he learned from respondents’ August 24, 2010, email
that the damage award was not as large as he believed to which he was entitled. Because
appellant did not retain respondents to represent him in post-judgment collection
proceedings, the trial court rejected appellant’s argument that respondents’ representation
of him continued past the filing and service of notice of entry of judgment on September
23, 2010. The court held that appellant’s October 22, 2010, email to Jacobs inquiring
about the status of service and filing did not manifest continued representation because
email “about events that had already occurred did not extend [Respondents’]
1 Respondents’ demurrer can be read to assert that respondents also told appellant
on September 23 that they had served notice on the Vodickas. Appellant alleges,
however, that he did not learn that respondents had served the Vodickas until October 22
when he sent his email. Because this is an appeal from a demurrer, we must accept
appellant’s allegation of the October date as when respondents told him they had fulfilled
their promise of serving notice.
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representation of [appellant] up to that time.” The court entered judgment for
respondents. This appeal followed.
STANDARD OF REVIEW
“A demurrer must assume the truth of a complaint’s properly pleaded allegations.”
(Century-National Ins. Co. v. Garcia (2011) 51 Cal.4th 564, 566, fn. 1.) “ ‘We treat [a]
demurrer as admitting all material facts properly pleaded, but not contentions, deductions
or conclusions of fact or law. [Citation.] We also consider matters which may be
judicially noticed.’ [Citation.] Further, we give the complaint a reasonable
interpretation, reading it as a whole and its parts in their context. [Citation.] When a
demurrer is sustained, we determine whether the complaint states facts sufficient to
constitute a cause of action. [Citation.] And when it is sustained without leave to amend,
we decide whether there is a reasonable possibility that the defect can be cured by
amendment . . . . [Citation.]’ ” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
DISCUSSION
Code of Civil Procedure section 340.6 establishes a one-year statute of limitation
for legal malpractice. It states: “An action against an attorney for a wrongful act or
omission . . . 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 . . . .” (Code
Civ. Proc., § 340.6, subd. (a).) The trial court found appellant’s malpractice cause of
action accrued when respondents told him in August 2010 about the trial court’s entry of
what he perceived to be an inadequate judgment.2 Thus, the trial court found appellant’s
2 Appellant contends his cause of action accrued either (1) when the six months by
which to set aside a judgment under Code of Civil Procedure section 473 expired; or
(2) when he actually discovered by reviewing the court file in April 2011 that
respondents had committed malpractice. We note as a general matter that a malpractice
cause of action accrues when the client is aware he has been injured in someway,
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complaint was untimely when appellant filed it more than one year later on October 18,
2011.
Appellant contends the statute of limitations was tolled while respondents
continued to represent him. In support, he cites subdivision (a)(2) of section 340.6,
which codifies the “continuing representation” doctrine under which the statute of
limitations is tolled while the “attorney continues to represent the plaintiff regarding the
specific subject matter in which the alleged wrongful act or omission occurred.”
(§ 340.6, subd. (a)(2).) Thus, according to appellant, the court erred in sustaining
respondents’ demurrer.
Appellant is correct. Tolling under the “continuing representation” doctrine stops
when the representation ends. (Laclette v. Galindo (2010) 184 Cal.App.4th 919, 927.)
The attorneys’ representation of the client continues until the agreed tasks have been
completed or events inherent in the representation have occurred. (Lockton v. O’Rourke
(2010) 184 Cal.App.4th 1051, 1063; Gold v. Weissman (2004) 114 Cal.App.4th 1195,
1200; Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1528.)
According to appellant, respondents promised during their September 7, 2010, meeting to
tell him when they served and filed notice of entry of judgment. With that promise,
respondents extended their representation of appellant until they had filed and served the
notice, and, in keeping with their promise, informed appellant they had done so. (Jocer
Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 559, 571 [“continuous representation
requires ‘an ongoing relationship and activities in furtherance of the relationship.’ ”].)
Informing appellant that service had been completed was particularly important here
because respondents had told appellant that the time for him to begin collection
regardless of whether he understands malpractice caused the injury. (Laird v. Blacker,
supra, 2 Cal.4th at p. 609; Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110;
Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005)
133 Cal.App.4th 658, 684-685.) We need not address appellant’s contentions because we
hold his complaint was timely even under the trial court’s finding that the cause of action
accrued on August 24, 2010, when appellant received respondent’s email discussing the
previous day’s entry of judgment.
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proceedings against the Vodickas was when service occurred. Respondents had thus
primed appellant to await word from them, and when he did not hear from them he
followed up with his October 22, 2010, email asking whether notice of entry of judgment
had been served. At that time, respondents informed him notice had been served, and by
implication, their representation of him had ended. Accordingly, his malpractice
complaint filed less than one year later on October 18, 2011, was timely.
DISPOSITION
The judgment is reversed and the trial court is directed to enter an order overruling
respondents’ demurrer. Appellant to recover his costs on appeal.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J.
FLIER, J.
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