Van Dyke Vs. Cogburn ( 2021 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
FAITH ELIAS VAN DYKE, No. 80921
INDIVIDUALLY,
Appellant,
VS.
FILED
JAMIE S. COGBURN, INDIVIDUALLY,
DEC 1 7 2021
Res • ondent.
ELIZABETH A_ BROWN
CLERXg ZIPREME COURT
BY
ORDER OF AFFIRMANCE DEPUTY CLERK
This is an appeal from a district court order granting
respondent summary judgment in a professional negligence action. Eighth
Judicial District Court, Clark County; Gloria Sturman, Judge.
Appellant Faith Elias Van Dyke tripped and fell over a broken
floor tile at the Los Angeles International Airport (LAX) in September 2014.
About five months later, Van Dyke hired respondent Jamie S. Cogburn (a
Nevada-licensed attorney) to represent her in an action against LAX and
other potential defendants for injuries that she allegedly suffered from the
fall. On February 4, 2015, Cogburn sent a letter of representation to LAX's
risk management department notifying the government entity of Van
Dyke's impending claim. Two weeks later, Los Angeles World Airports
(LAWA), LAX's parent entity, responded to Cogburn's letter with a set of
empty claim forms and instructed Van Dyke to complete and return the
forms to the city clerk's office before the six-month deadline provided under
California Government Code Section 911.2(a) (West Supp. 2021)
(California's notice-of-claims statute). But Cogburn failed to file the forms
ahead of the deadline, and Van Dyke sued alleging legal malpractice and
breach of fiduciary duty.
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To establish a prima facie case for legal malpractice, a plaintiff
must show that (1) an attorney-client relationship existed, (2) the attorney
owed a duty to the client, (3) the attorney breached that duty, (4) the breach
was the proximate cause of the client's damages, and (5) damages. Sernenza
v. Nev. Med. Liab. Ins. Co., 104 Nev. 666, 667-68, 765 P.2d 184, 185 (1988).
Generally, a plaintiff must produce expert testimony to establish the
professional standard of care and an attorney's breach of that standard.
Boesiger v. Desert Appr., LLC, 135 Nev. 192, 195, 444 P.3d 436, 439 (2019);
Allyn v. McDonald, 112 Nev. 68, 71, 910 P.2d 263, 266 (1996). Van Dyke
did not produce such evidence to establish the professional standard of care
or Cogburn's breach of that standard in the underlying malpractice action,
and the district court thus granted summary judgment in Cogburn's favor.
On appeal, Van Dyke argues that Cogburn's failure to timely
submit the forms that LAWA provided him falls within an exception to the
expert-testimony requirement because the "breach of care or lack thereof is
so obvious that it may be determined by the court as a matter of law or is
within the ordinary knowledge and experience of laymen." Allyn, 112 Nev.
at 71-72, 910 P.2d at 266. An attorney's failure to meet the applicable
statute of limitations may be within a layperson's knowledge in certain
circumstances, see id., but not these. LAWNS forms aside, Cogburn timely
submitted a letter of representation to LAX/LAWA that included: (1) Van
Dyke's name and address, with directions to send further notices to the
provided address; (2) the date, time, and location of Van Dyke's fall; (3) the
nature of Van Dyke's claim (i.e., personal injury); and (4) Van Dyke's intent
to remit a full accounting of damages with a demand for payment once
available. Inasmuch as the letter appears to have substantially complied
with the form-and-content requirements of California Government Code
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01) 1947A 41/frA.
Section 910 (2012)1 within the six-month deadline provided under Section
911.2(a) (A claim relating to a cause of action for . . . injury to
person . . . shall be presented . . . not later than six months after the accrual
date of the cause of action . . . ."), it is not obvious that more was required
under California law to preserve Van Dyke's claim against LAX/LAWA.
See, e.g., City of San Jose v. Superior Court, 525 P.2d 701, 706-07 (Cal. 1974)
(holding that a substantial-compliance standard applies to determine
whether notice is sufficient under California's notice-of-claims statutes);
'Section 910 provides:
A claim shall be presented by the claimant or by a person acting
on . . . her behalf and shall show all of the following:
(a) The name and post office address of the claimant.
(b) The post office address to which the person presenting
the claim desires notices to be sent.
(c) The date, place and other circumstances of the
occurrence or transaction which gave rise to the claim
asserted.
(d)A general description of the . . . injury.. . . incurred so
far as it may be known at the time of presentation of
the claim.
(e) The name or names of the public employee or
employees causing the injury, damage, or loss, if
known.
(f) The amount claimed if it totals less than ten thousand
dollars ($10,000) as of the date of presentation of the
claim . . . insofar as it may be known at the time of the
presentation of the claim, together with the basis of
computation of the amount claimed. If the amount
claimed exceeds ten thousand dollars ($10,000), no
dollar amount shall be included in the claim.
However, it shall indicate whether the claim would be
a limited civil case.
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(0) 1947A alfet.
Wheeler v. County of San Bernadino, 143 Cal, Rptr. 295, 299 (Ct. App. 1978)
(same); cf. Green v. State Ctr. Cmty. Coll. Dist., 41 Cal. Rptr. 2d 140, 144-46
(Ct. App. 1995) (holding that the content of the correspondence is sufficient
if it communicates a party's "assertion of a compensable claim against the
entity" under threat of litigation); Michael P. Thomas, California Civil
Courtroom Handbook & Deskbook Reference § 2:10 (2021 ed.); Judge Robert
I. Weil et al., Prelawsuit Notices, Claims and Demands, in The Rutter Grp.,
California Practice Guide: Civil Procedure Before Trial § 1:682-83 (Supp.
2021). And summary judgment in Cogburn's favor was therefore
appropriate based on the absence of necessary expert testimony. See Wood
v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005) (reviewing
a district court's summary judgment decision de novo).
Summary judgment was alternatively appropriate because Van
Dyke voluntarily abandoned her appeal of the California superior court's
order deeming her application untimely. Cogburn appealed this order, but
withdrew as Van Dyke's counsel when she initiated her first Nevada
malpractice action against him. Despite Cogburn's advice to the contrary,
Van Dyke never hired replacement counsel or filed an opening brief on
appeal. Given that Cogburn's letter of representation appears to have
substantially met the relevant requirements of California's notice-of-claims
statutes, as discussed above, the California court of appeals could have
corrected the California superior court's denial. Van Dyke's failure to
pursue that remedy to disposition provides Cogburn with a viable defense
that the proximate cause of Van Dyke's damages was not his asserted
negligence. See Hewitt v. Allen, 118 Nev. 216, 222, 43 P.3d 345, 348 (2002)
C[T]he defendants in [a] legal malpractice action are able to assert, as an
affirmative defense, that the proximate cause of the damages was not the
4
attorney's negligence, but judicial error that could have been corrected on
appeal."). Accordingly, we
ORDER the judgment of the district court AFFIRMED.
J.
Cadish
J.
Pickering
(7422.1 J.
Herndon
cc: Hon. Gloria Sturman, District Judge
Salvatore C. Gugino, Settlement Judge
Muehlbauer Law Office, Ltd.
Lipson Neilson P.C.
Eighth District Court Clerk
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(01 1947A atekt.