Chancellor v. Ozzello CA2/2

Filed 10/8/20 Chancellor v. Ozzello CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
ROBERT CHANCELLOR, B292321
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC653597)
v.
MARK A. OZZELLO et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, William F. Fahey, Judge. Affirmed.
Robert Chancellor, in pro. per.; and Christopher E. Rolin
for Plaintiff and Appellant. [Retained.]
Law Offices of David R. Greifinger, and David R. Greifinger
for Defendant and Respondent Mark A. Ozzello.
Markun Zusman Freniere and Compton, and John A.
Marshall for Defendant and Respondent Markun Zusman
Freniere and Compton.
******
A doctor sued his former lawyer (and the firm with which
the lawyer was “of counsel”) for malpractice, breach of fiduciary
duty and fraud. The trial court denied the doctor’s motion to
continue the trial, denied his motion to make a late designation of
an expert witness, and after the doctor’s opening statement at
trial, granted a nonsuit in favor of the lawyer and firm because
the doctor could not establish two elements common to all of his
claims. We conclude there was no error, and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Loss of medical license
Robert Chancellor (plaintiff) is a medical doctor licensed in
Nevada. In the early 2000s, the Nevada Board of Medical
Examiners (the Board) revoked his license to practice medicine
on the ground that he was doing so while under the influence of
controlled substances. The Board reinstated his license in or
before 2014.
B. Lawsuits against the Board
1. Federal lawsuit
In 2015, plaintiff hired a disbarred lawyer to draft a
complaint that could be used to initiate a Nevada-based lawsuit
against the Board and others for abuse of process, defamation
and fraud in its handling of the administrative proceedings
regarding his medical license. At some point, plaintiff started
speaking with Brittany Hamilton (Hamilton), a newly admitted
California lawyer. Around that time, Hamilton began working
2
for Mark Ozzello (Ozzello), a more experienced California
attorney, who was then working “of counsel” at the law firm of
Markun Zusman Freniere and Compton, LLP (“the firm”).
Ozzello told plaintiff that the complaint drafted by the disbarred
lawyer “needed a fair amount of work.”
In late August 2015, plaintiff signed a written retainer
agreement with Ozzello. Under the agreement, Ozzello promised
to conduct legal research for plaintiff. The written retainer did
not obligate Ozzello to represent plaintiff, although Ozzello orally
promised to represent him if Ozzello was able to find a Nevada-
licensed cocounsel (because Ozzello himself was not authorized to
practice law in Nevada).
In early September 2015, Ozzello told plaintiff that the
complaint had to be filed the next day (to avoid statute of
limitations problems), that Ozzello had not found cocounsel, and
that plaintiff would therefore need to file the complaint as a self-
represented litigant. Because the complaint provided by the
disbarred lawyer had been formatted for filing in federal court,
plaintiff filed the complaint in federal court as a self-represented
litigant. Ozzello subsequently prepared an amended complaint,
which plaintiff also filed as a self-represented litigant.
In early 2016, the Board and other defendants moved for
judgment on the pleadings. Plaintiff paid Ozzello $8,000 to draft
an opposition to that motion. Ozzello took the money and drafted
the opposition, but refused to give it to plaintiff and urged
plaintiff to call the Board’s attorney and offer to dismiss the case
in exchange for a promise not to seek sanctions against plaintiff
for filing a frivolous lawsuit.
3
Plaintiff located a Nevada-based lawyer on his own,
obtained a continuance of the due date for the opposition, and
filed an opposition.
The federal court granted the motion for judgment on the
pleadings and dismissed plaintiff’s case.
2. State lawsuit
While the motion for judgment on the pleadings was
pending in plaintiff’s federal lawsuit, he filed a lawsuit against
the Board involving similar allegations in Nevada state court.
He was represented by a Nevada attorney.
II. Procedural Background
A. Complaint
As a self-represented litigant, plaintiff in March 2017 filed
a verified complaint against Ozzello and the firm alleging claims
for (1) legal malpractice, (2) breach of fiduciary duty, and (3)
fraud. All three claims were based on Ozzello’s alleged (1)
“fail[ure] to prepare and submit” plaintiff’s “lawsuit complaint
with a reasonable amount of skill,” (2) “knowing[] and
intentional[]” act of “provid[ing] false and incorrect information
concerning [his] role within the lawsuit as attorney of record, and
the strategy [of] prosecuting plaintiff’s case [in a manner that]
was designed more to protect [his] self-interest than that of”
plaintiff, and (3) giving of “poor legal advice which is the
proximate cause of the legal hurdles with the plaintiff’s . . . case.”
B. Denial of continuance
Following the initial case management conference in July
2017, the trial court set trial for March 12, 2018. In November
2017, plaintiff, Ozzello and the firm submitted a written
stipulation to continue the trial date to June 11, 2018. The trial
4
court did not sign the stipulation. Plaintiff learned of the court’s
refusal to continue the trial on January 25, 2018.
On February 8, 2018, plaintiff—now represented by
counsel—filed an ex parte application to continue the March trial
date for four months (ostensibly, to July 2018). Citing the still-
ongoing Nevada state lawsuit, plaintiff urged that a continuance
of this case was warranted (1) because “possible inconsistent
judgments” might arise in the two lawsuits, (2) because the
outcome of the Nevada state lawsuit might “limit[]” the remedies
available in this case, including having a possible collateral
estoppel effect, and (3) because plaintiff could use discovery
obtained in the Nevada state lawsuit in this case.
The trial court denied plaintiff’s request the very same day.
Plaintiff filed a petition for a writ of mandate with this
court to review the denial of his continuance request. We stayed
the trial court proceedings to review the petition, but ultimately
denied the petition and dissolved the stay.
Upon dissolution of the stay, the trial court fixed a new
trial date for July 9, 2018, more than four months after the
previously set trial date.
C. Motion for late designation of expert
Discovery in this case was completed by January 25, 2018,
except for plaintiff’s deposition, which occurred in February 2018.
On April 27, 2018, plaintiff—once again self-represented —
filed an ex parte motion to designate an expert witness to testify
about “the standard of care in legal malpractice cases.” Plaintiff
explained that he had not designated this expert earlier because
(1) he had mistakenly thought the court had signed the parties’
stipulation to continue the trial, (2) he “did not realize [he]
needed to designate an expert” on the standard of care “prior to
5
that time,” and (3) he had difficulty retaining an expert because
he was a self-represented litigant.
Following an unreported hearing on May 23, 2018 at which
the trial court heard “argument,” the court denied the motion.
D. Trial
On July 9, 2018, the matter proceeded to a jury trial.
The trial court allowed plaintiff, who was still proceeding
as a self-represented litigant, to have a lawyer as his “cocounsel.”
Plaintiff moved for a continuance on the ground that
Hamilton was unavailable as a witness. The trial court denied
the motion after finding that plaintiff had never subpoenaed her
as a witness and had not attempted to do so until June 21, 2018,
which was nearly three months after the trial court set the
current trial date. The court found that plaintiff’s efforts were
“insufficient and not due diligence.”
Plaintiff then gave his opening statement, which was
comprised of the facts set forth above. The only additional fact
the plaintiff articulated was that the Nevada state lawsuit was
still ongoing.
After plaintiff finished his opening statement, both Ozzello
and the firm moved in writing and orally for a nonsuit. The court
entertained argument outside the jury’s presence, and allowed
plaintiff to consult with his cocounsel. The court granted nonsuit
in favor of the firm because plaintiff had not argued for the firm’s
liability at all during his opening statement. The court also
granted nonsuit in favor of Ozzello. The court found that, even
accepting the facts set forth by plaintiff in his opening statement
as true, plaintiff could not prove Ozzello’s negligence as a lawyer
because doing so required expert testimony and plaintiff had not
designated an expert witness. The court rejected plaintiff’s
6
argument that Ozzello’s malpractice—including his willingness to
undertake tasks beyond those set forth in the written retainer
agreement—was so obvious as to be subject to the “common
knowledge” of the jurors and thus susceptible to proof without an
expert witness. The court found that plaintiff’s remaining claims
were derivative of his malpractice claim, and thus mandated the
same ruling.
E. Entry of judgment and appeal
Following the trial court’s entry of judgment for Ozzello
and the firm, plaintiff filed this timely appeal.
DISCUSSION
Plaintiff argues that the trial court erred in (1) denying his
February 2018 motion for a continuance, (2) denying his April
2018 motion for late designation of an expert, and (3) granting
the nonsuit.1
I. Denial of February 2018 Continuance Motion
Trial courts enjoy “broad discretion” in deciding whether to
continue a trial. (Freeman v. Sullivant (2011) 192 Cal. App. 4th
523, 527.) Because the date set for trial is meant to be a “firm”
date (Cal. Rules of Court, rule 3.1332(a)), continuances of the
1 Plaintiff seems to hint at a fourth argument—namely, that
the trial court was biased against him. At various points in his
briefs, plaintiff states that the trial court was “hostile,” “overly
harsh,” “abusive” “intimidate[ing]” and “condescen[ding]” to him,
was “biased” against him, and had “predetermined” that he
“could not win.” Because plaintiff offers no legal argument in
support of his accusations, he has forfeited the issue on appeal.
(People v. Hovarter (2008) 44 Cal. 4th 983, 1029; Bullock v. Philip
Morris USA, Inc. (2008) 159 Cal. App. 4th 655, 685.) In any event,
our review of the portions of the trial record presented to us does
not bear out plaintiff’s accusations.
7
trial date are “disfavored” (ibid.; Thurman v. Bayshore Transit
Management, Inc. (2012) 203 Cal. App. 4th 1112, 1127, overruled
on other grounds as stated in ZB, N.A. v. Superior Court (2019) 8
Cal. 5th 175, 196) and to be “‘sparingly’” granted (County of San
Bernardino v. Doria Mining & Engineering Corp. (1977) 72
Cal. App. 3d 776, 781). This general policy is reflected in the
requirement that a party seeking a continuance, at a minimum,
make “an affirmative showing of good cause requiring [a]
continuance.” (Cal. Rules of Court, rule 3.1332(c); In re Marriage
of Falcone & Fyke (2008) 164 Cal. App. 4th 814, 823 (Falcone).)
Once he does, the trial court may then exercise its discretion to
grant or deny the continuance, bearing in mind that it “‘must
exercise [that] discretion with due regard to all interests
involved’” (Cotton v. StarCare Medical Group, Inc. (2010) 183
Cal. App. 4th 437, 445), and that “‘the refusal of a continuance
which has the practical effect of denying the applicant a fair
hearing is reversible error’” (In re Marriage of Hoffmeister (1984)
161 Cal. App. 3d 1163, 1169 (Hoffmeister)). We review the denial
of a continuance solely for an abuse of that discretion. (Falcone,
at p. 823.)
The trial court did not abuse its discretion in denying
plaintiff’s February 2018 motion for a continuance for two
reasons.
First, plaintiff did not make an affirmative showing of good
cause. The California Rules of Court list seven different
circumstances that “may indicate good cause.” (Cal. Rules of
Court, rule 3.1332(c).)2 At most, only one such circumstance—
2 These circumstances are (1) “[t]he unavailability” of an
“essential witness,” a party, or trial counsel “because of death,
8
that is, “[a] party’s excused inability to obtain essential
testimony, documents, or other material evidence” (id., rule
3.1332(c)(6))—might support plaintiff’s proffered reasons for the
continuance in order to wait and see what happens during the
Nevada state trial. But that exception requires proof of “diligent
efforts” (ibid.; Kuhland v. Sedgwick (1860) 17 Cal. 123, 128 [“The
absence of evidence is no cause for a continuance, unless
reasonable diligence has been used to procure it”]), and plaintiff
had not exercised any diligence in bringing the Nevada case to a
resolution or in informing the trial court of the significance of its
pendency despite the fact that it had been pending throughout
the duration of this litigation. (Cf. Hernandez v. Superior Court
(2004) 115 Cal. App. 4th 1242, 1244, 1246-1247 [error to deny trial
continuance when plaintiff’s counsel became stricken with
“serious physical illness and its debilitating effects culminating
in death during the final stages of litigation”].)
Second, plaintiff has not demonstrated that the “‘practical
effect’” of the court’s denial of the continuance motion was to
“‘deny[]’” him “‘a fair hearing.’” (Hoffmeister, supra, 161
Cal.App.3d at p. 1169.) At the time he filed his continuance
request, plaintiff had completed discovery, was represented by
illness, or other excusable circumstances” (Cal. Rules of Court,
rule 3.1332(c)(1), (c)(2), (c)(3)), (2) “[t]he substitution of trial
counsel” when that substitution “is required in the interests of
justice” (id., rule 3.1332(c)(4)), (3) “[t]he addition of a new party”
(if certain additional requirements are met) (id., rule
3.1332(c)(5)), (4) “[a] party’s excused inability to obtain essential
testimony, documents, or other material evidence despite diligent
efforts” (id., rule 3.1332(c)(6)), and (5) “[a] significant,
unanticipated change in the status of the case as a result of
which the case is not ready for trial” (id., rule 3.1332(c)(7)).
9
counsel, and his sole proffered justification for the request was
the pendency of a lawsuit that had been pending all along.
Although, as plaintiff noted, the Nevada state lawsuit might alter
the remedies available in this case, plaintiff was the one who
created this situation by not seeking to stay this malpractice
action until the Nevada state lawsuit was completed. (Adams v.
Paul (1995) 11 Cal. 4th 583, 593 (Adams) [noting availability of
this remedy when a plaintiff files a malpractice action to meet
the statute of limitations for such actions].) What is more, the
factors that a trial court is to weigh in considering how to
exercise its discretion whether to grant a continuance cut both
ways:3 Some (such as the absence of any prior continuances and
the filing of the request a month before trial) favored granting a
continuance, while others (such as the proposed four-month
duration of the continuance, the absence of a stipulation, and
plaintiff’s failure to seek a stay of the entire litigation) favored
3 These “factors” include, in pertinent part, (1) “[t]he
proximity of the trial date,” (2) “[w]hether there was any previous
continuance,” (3) “[t]he length of the continuance requested,” (4)
“[t]he availability of alternate means to address the problem that
gave rise to the motion or application for a continuance,” (5)
“[t]he prejudice that parties or witnesses will suffer as a result of
the continuance,” (6) “[i]f the case is entitled to a preferential
trial setting, the reasons for that status and whether the need for
a continuance outweighs the need to avoid delay,” (7) “[t]he
court’s calendar and the impact of granting a continuance on
other pending trials,” (8) “[w]hether trial counsel is engaged in
another trial,” (9) “[w]hether all parties have stipulated to a
continuance,” (10) “[w]hether the interests of justice are best
served by a continuance . . . ,” and (11) “[a]ny other fact or
circumstance relevant to the fair determination of the motion or
application.” (Cal. Rules of Court, rule 3.1332(d).)
10
denying one. We are not at liberty to reweigh these factors in
order to come to a different outcome. (County of Imperial v.
Superior Court (2007) 152 Cal. App. 4th 13, 35.)
Plaintiff resists this conclusion with five arguments.
First, he argues that parties are entitled to one, “garden-
variety” trial continuance in each case. As explained above, that
is not the law. Plaintiff cites Pham v. Nguyen (1997) 54
Cal. App. 4th 11, but that case merely acknowledged that Code of
Civil Procedure section 595.2 sets forth a policy favoring the
grant of a one-month continuance when all parties agree.4 (Id. at
pp. 14, 17.) Pham is of no relevance here, where plaintiff alone
was seeking a four-month continuance.
Second, plaintiff contends that there was “no prevailing
reason not to” grant his continuance motion. This contention
shifts the burden to the party opposing the continuance. The
law, as noted above, is to the contrary.
Third, plaintiff indicates that he did not learn about the
trial court’s denial of the parties’ stipulation to a continuance
until weeks after that rejection, in part because the trial court
did not create a docket entry for that denial, and that this delay
created “confusion.” At best, these facts explain why plaintiff
made his continuance request one month before the trial date
then set (rather than earlier); they do not bear on why a
continuance was needed.
Fourth, plaintiff asserts that Hamilton was not available to
testify at trial. We reject this assertion. Plaintiff is trying to
retroactively import the basis for his July 2018 continuance
request as a basis for the February 2018 continuance request he
4 All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
11
challenges on appeal. This is not allowed. (See People v. Doolin
(2009) 45 Cal. 4th 390, 450 [in reviewing the denial of a
continuance, “[a] reviewing court considers . . . the reasons
presented”], italics added.) Even if it were, plaintiff’s lack of
diligence in securing Hamilton as a witness supports the denial
of a continuance. (E.g., Jensen v. Superior Court (2008) 160
Cal. App. 4th 266, 270-272.)
Lastly, plaintiff posits that three further cases dictate
reversal—namely, Hamilton v. Orange County Sheriff’s Dept.
(2017) 8 Cal. App. 5th 759 (Hamilton), Denton v. City and County
of San Francisco (2017) 16 Cal. App. 5th 779 (Denton), and
Oliveros v. County of Los Angeles (2004) 120 Cal. App. 4th 1389
(Oliveros). They do not. Hamilton and Denton both dealt with
continuances of a summary judgment motion pursuant to section
437c, subdivision (h), and not trial continuances. More to the
point, Hamilton and Denton both involved a trial court’s
inequitable grant of a continuance to one party but denial of a
continuance to the appellant (Hamilton, at pp. 765-767; Denton,
at p. 793); that did not happen here. Oliveros dealt with a trial
court’s categorical refusal to grant a continuance when a party’s
counsel developed a last-minute conflict of interest (Oliveros, at
pp. 1395-1396); that also did not happen here.
II. Denial of April 2018 Motion for Late Designation of
Expert Witness
The Civil Discovery Act (§ 2016 et seq) regulates the
disclosure of information regarding “expert trial witnesses.”
(§ 2034.210.) Once a trial date is set, a party has the statutory
right to “demand a mutual and simultaneous exchange” of the
names of all persons “whose oral or deposition testimony in the
form of an expert opinion any party expects to offer in evidence at
the trial.” (Ibid.; §§ 2034.230 [requiring that demand be in
12
writing], 2034.260 [contents of exchange]; accord, Perry v.
Bakewell Hawthorne, LLC (2017) 2 Cal. 5th 536, 538 [so noting].)
If at the time of trial an expert is not disclosed, the trial court
“shall exclude” the expert’s testimony from evidence if (1) the
failure to disclose is “unreasonabl[e],” (2) a party objects, and (3)
the objecting party has itself complied with the rules governing
disclosure of expert witnesses.” (§ 2034.300; Tesoro del Valle
Master Homeowners Assn. v. Griffin (2011) 200 Cal. App. 4th 619,
641; Richaud v. Jennings (1993) 16 Cal. App. 4th 81, 92.) “The
purpose of the[se] expert witness discovery statutes is ‘to give fair
notice of what an expert will say at trial,’ [citation],” which is
critical because a party needs more time to prepare to meet an
expert witness’s specialized knowledge. (Cottini v. Enloe Medical
Center (2014) 226 Cal. App. 4th 401, 416 (Cottini).)
Where, as here, a party has not complied with its obligation
to timely disclose an expert witness, he may ask the trial court
for leave to make a late designation of an expert witness.
(§ 2034.710.) A court may not grant such a request unless it
finds that the moving party (1) “[f]ailed to submit the information
as the result of mistake, inadvertence, surprise, or excusable
neglect,” (2) “[s]ought leave to submit the information promptly
after learning of the mistake, inadvertence, surprise, or excusable
neglect,” and (3) “[p]romptly thereafter served a copy of the
proposed expert witness information described in Section
2034.260 on all other parties who have appeared in the action.”
(§ 2034.720, subd. (c).) We review a trial court’s denial of a
motion for late designation of an expert witness for an abuse of
discretion. (Cottini, supra, 226 Cal.App.4th at p. 418; Dickison v.
Howen (1990) 220 Cal. App. 3d 1471, 1476.)
13
The trial court did not abuse its discretion in denying
plaintiff’s motion for late designation of an expert witness on the
standard of care because plaintiff did not satisfy the statutory
prerequisites for such relief. As noted above, plaintiff offered
three reasons in support of his motion—that he mistakenly
thought the trial court had signed the parties’ stipulation to
continue the trial, that he “did not” previously “realize” he needed
an expert on this topic, and that he had difficulty obtaining an
expert witness due to his status as a self-represented litigant.
But none of these reasons explains why he waited until late April
2018 to bring his motion. Plaintiff learned the stipulation to
continue was denied in late January 2018, and he offered no
evidence as to when he realized he needed an expert witness or
when he realized that his efforts to locate an expert witness were
unavailing. We cannot grant plaintiff any “greater[]
consideration than other litigants and attorneys” merely because
he is self-represented. (Nelson v. Guant (1981) 125 Cal. App. 3d
623, 638-639.) Because plaintiff failed to satisfy the necessary
prerequisites of seeking leave to submit the information
promptly, the trial court acted well within its discretion in
denying his request.
Plaintiff offers two further arguments. First, he argues
that the trial court had “no plausible reason” not to grant his
request. This argument impermissibly shifts the burden to the
trial court or to the non-moving party when that burden belongs
with the moving party. Second, plaintiff argues that Ozzello and
the firm would not have been prejudiced by the late designation
of his expert. The absence of prejudice from granting the relief
plaintiff seeks, however, does not make up for his failure to
satisfy the threshold requirements for that relief.
14
III. Grant of Nonsuit
In a jury trial, a trial court may grant a nonsuit for the
defendant(s) after a plaintiff’s opening statement if the court,
after accepting all of the stated facts as true and drawing all
reasonable inferences from those facts, concludes that “as a
matter of law there will be no evidence of sufficient substantiality
to support a judgment” for the plaintiff. (§ 581c; Russell v.
Soldinger (1976) 59 Cal. App. 3d 633, 640; Rokos v. Peck (1986)
182 Cal. App. 3d 604, 611; Jensen v. Hewlett-Packard Co. (1993) 14
Cal. App. 4th 958, 965 (Jensen).) Nonsuit is a generally
“disfavored” remedy, but must be granted if its requirements are
met. (Jensen, at p. 965.) We independently review a trial court’s
grant of a nonsuit. (Wheeler v. Raybestos-Manhattan (1992) 8
Cal. App. 4th 1152, 1154.)
As pled, all of plaintiff’s three claims turn on the viability of
his malpractice claim. To support a judgment for legal
malpractice, the plaintiff must establish that (1) the attorney
breached his “duty . . . to use such skill, prudence and diligence
as members of the profession commonly possess,” (2) “a proximate
causal connection between the breach and the resulting injury,”
and (3) “actual loss or damage.” (Wiley v. County of San Diego
(1998) 19 Cal. 4th 532, 536; Lucas v. Hamm (1961) 56 Cal. 2d 583,
591-592; Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971)
6 Cal. 3d 176, 180-181 (Neel).)
As a general matter, the standard of conduct defined by the
“skill, prudence and diligence” that attorneys “commonly
possess”—and whether an attorney’s conduct in any particular
case has fallen below that standard—are “matter[s] peculiarly
within the knowledge of experts.” (Unigard Ins. Group v.
O’Flaherty & Belgum (1995) 38 Cal. App. 4th 1229, 1239
15
(Unigard); Goebel v. Lauderdale (1989) 214 Cal. App. 3d 1502,
1508 (Goebel); Jeffer v. Glickman (1991) 234 Cal. App. 3d 1432,
1441.) In such cases, a malpractice plaintiff’s failure to call an
expert witness on these issues is fatal to his case. (Unigard, at p.
1239.) But if “the failure of attorney performance is so clear that
a trier of fact may find professional negligence unassisted by
expert testimony”—chiefly, because the attorney’s malfeasance is
“so clear” or obvious as to be within the “common knowledge” of
jurors—then the malpractice plaintiff’s failure to call an expert
witness is not fatal to his case. (Wilkinson v. Rives (1981) 116
Cal. App. 3d 641, 647-648; Wright v. Williams (1975) 47
Cal. App. 3d 802, 810; Stanley v. Richmond (1995) 35 Cal. App. 4th
1070, 1093 (Stanley).) An expert witness is not needed when the
malpractice consists of advising a client to take actions that
violate the criminal law (Goebel, at p. 1509), failing to do any
legal research whatsoever (id. at p. 1508; Stanley, at pp. 1093-
1094), or taking actions that constitute a “blatant and egregious”
violation of the ethical rules against taking a financial interest
adverse to a client (Day v. Rosenthal (1985) 170 Cal. App. 3d 1125,
1146-1148).
In this case, the trial court did not err in granting a
nonsuit—against either Ozzello or the firm—because the facts
plaintiff stated as the basis for his legal malpractice claim
required the testimony of an expert witness and plaintiff was not
going to call any such expert witness.5 In his opening statement
5 There is a second reason the trial court’s grant of a nonsuit
was proper—namely, that the viability of malpractice action
based on negligence in representing a client in an underlying
lawsuit turns on whether the plaintiff was injured by the
16
and in the additional facts he recounted to the trial court during
the argument on the nonsuit motion, plaintiff identified four
alleged deficiencies in Ozzello’s representation; none was within
the “common knowledge” of jurors. Plaintiff argued that Ozzello
was negligent for telling him to file the initial complaint the day
before it was due, but whether Ozzello properly calculated the
due date, whether his advice on where to file the lawsuit (federal
versus state court) was correct, and whether the complaint was of
good quality are all matters within the special knowledge of
lawyers. This is not a case, like Goebel and Stanley, where the
lawyer failed to conduct any legal research whatsoever. Plaintiff
argued that Ozzello did not hand over the opposition to the
motion for judgment on the pleadings despite plaintiff paying for
it, but plaintiff found another lawyer to file that opposition in a
timely manner; whether plaintiff would have done any better
with Ozzello’s draft over his lawyer’s draft turns on the quality of
outcome of that lawsuit (Viner v. Sweet (2003) 30 Cal. 4th 1232,
1241; Blanks v. Seyfarth Shaw LLP (2009) 171 Cal. App. 4th 336,
357), and here the Nevada state lawsuit was not yet finished at
the time plaintiff gave his opening statement. Nor can we look to
other sources of possible injury (such as plaintiff’s incursion of
attorney fees) because plaintiff did not state those as damages.
(Adams, supra, 11 Cal.4th at p. 591; Jordache Enterprises, Inc. v.
Brobeck, Phleger & Harrison (1998) 18 Cal. 4th 739, 755.) And
the fact that the Nevada state lawsuit was dismissed at some
point after the trial in this case (as plaintiff states for the first
time in his reply brief on appeal) does not retroactively alter the
propriety of the trial court’s ruling at the time of trial. We
therefore affirm on this alternative ground. (Doe v. Roman
Catholic Archbishop of Los Angeles (2016) 247 Cal. App. 4th 953,
960 [“we may affirm on any ground supported by the record
regardless of whether the trial court relied upon it”].)
17
the drafts’ content, which is a matter within the special
knowledge of lawyers. Plaintiff argued that Ozzello’s drafting of
the complaint and opposition went beyond the scope of the
written retainer (because Ozzello promised in the retainer only to
conduct legal research), but whether Ozzello’s agreement to
perform tasks based on an oral agreement constitutes
malpractice is a matter within the special knowledge of lawyers.
Plaintiff argued that Ozzello failed to tell him, up front, that his
Nevada lawsuits were meritless, but whether they were meritless
under the pertinent law is a matter within the special knowledge
of lawyers. For the first time on appeal, plaintiff argues that
Ozzello’s conduct violated various rules of professional
responsibility; aside from being an argument not presented to the
trial court, whether Ozzello violated those rules and whether
those violations constitute a breach of the duty of care are also all
matters within the special knowledge of lawyers.
Plaintiff makes two further arguments. First, he argues
that he should not be penalized for failing to set forth all of his
evidence in his opening statement because he should have had
the rest of the trial to do so. This argument ignores the statutory
procedure for nonsuit and, more to the point, ignores that he was,
for the reasons explained above, barred from introducing expert
testimony at any point during the trial. Second, plaintiff argues
that Ozzello did not do as he promised because he did not deliver
the opposition to the motion for judgment on the pleadings.
While it is true that an act of legal malpractice necessarily
constitutes a breach of the contract for services (e.g., Neel, supra,
6 Cal.3d at p. 181), the fact that a lawyer breaches a contract
does not necessarily constitute legal malpractice. Plaintiff’s
reliance on the latter proposition is accordingly flawed.
18
In light of our analysis, we have no occasion to address
plaintiff’s further arguments.
* * *
We are mindful that the rulings the trial court made in this
case—regarding the continuance, the late designation of an
expert, and the nonsuit—may have been different (or obviated
entirely) if plaintiff had had the assistance of counsel, and may
have allowed plaintiff to present his case to the jury. But this is
a case where plaintiff apparently had the wherewithal to hire
counsel (as he did for a brief period of time here and as he did in
Nevada) but elected not to do so. The law is clear in such
situations: We must treat him no differently than a party with
counsel. And under that law, the trial court’s rulings were
correct and within its discretion at the time they were made.
DISPOSITION
We affirm the judgment. Ozzello and the firm are entitled
to their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P.J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
19