Monday, June 5, 2006
C.A. Revives Malpractice Action Against Mid-Wilshire Attorney
Panel Says Statute of Limitations Period May Have Been Tolled During Period That Lawyer Failed to Communicate
By TINA BAY, Staff Writer
The statute of limitations period as to a legal malpractice claim may be tolled during the period that a lawyer failed to communicate with the client after agreeing to accept representation, the Court of Appeal for this district ruled Friday.
Div. Three reinstated a suit against Emelike I. Kalu, who practices in the mid-Wilshire area, overturning Los Angeles Superior Court Judge Morris B. Jones’ grant of summary judgment in favor of the lawyer.
In opposing Kalu’s motion, which was based on Code of Civil Procedure Sec. 340.6’s one-year limitations period for legal malpractice actions, Gabriela Gonzales said she retained the lawyer in July 2000 to represent her in a sexual harassment claim against her employer, and that Kalu sent a letter to the employer saying the employer was legally responsible for the alleged harassment committed against Gonzales by a fellow employee.
When the employer thereafter fired Gonzales, Kalu filed an administrative complaint with the Department of Fair Employment and Housing. He also notified the employer that the termination had been retaliatory and he would sue for sexual harassment and wrongful termination upon receipt of a right-to-sue letter from the DFEH.
Kalu never filed the sexual harassment action, which had a one-year limitations period. Gonzales alleges she did not discover this fact until June 2003 when Kalu told her he would not prosecute her case.
She filed a legal malpractice suit against him in January 2004. The suit was timely, her attorneys argued, because Sec. 340.6(a)(2) tolls the one-year period where the attorney “continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.”
Gonzales maintained that because Kalu did not tell her he was dropping her claim before June 2003, he continued to represent her in the sexual harassment matter—even though they allegedly had no communication whatsoever between July 2000 and June 2003. Her explanation for the long silence was that she waited on Kalu to contact her after his office told her the case would take a “very long” time and they would call or write.
Kalu countered that Gonzalez had agreed to drop the case if no settlement was forthcoming and that his last conversation with her prior to June 2003 was in December 2000.
Trial Court Ruling
In granting Kalu’s motion, Jones concluded that “reasonable persons cannot differ: the one-year period in which plaintiff could have filed suit against defendant Emelike I. Kalu had expired by the time plaintiff commenced this action on January 23, 2004.”
Jones further denied Gonzales’ motion for new trial, saying that “[i]t is unreasonable that after almost three years of noncommunication, the plaintiff would believe that her case was still being pursued despite a total lack of communication from the defendant.”
Writing for the appellate panel, Justice Walter Croskey disagreed. He noted that Kalu never informed Gonzales that review of her DFEH complaint should not take a long time, that the time limit on filing her lawsuit was one year, or what the timeline of litigation would be.
“[R]easonable minds could differ as to whether Gonzalez reasonably should have believed more than one year before filing suit that Kalu had withdrawn from representation or abandoned her,” the justice wrote.
Croskey explained that Sec. 340.6 does not expressly state, nor does legislative history indicate, a standard for determining when an attorney’s representation of a client regarding a specific subject matter continues or ends.
“Absent a statutory standard to determine when an attorney’s representation of a
client regarding a specific subject matter ends, and consistent with the purposes of the
continuing representation rule, we conclude that for purposes of Code of Civil Procedure section 340.6, subdivision (a)(2), in the event of an attorney’s unilateral withdrawal or abandonment of the client, the representation ends when the client actually has or reasonably should have no expectation that the attorney will provide further legal services,” he wrote. “That may occur upon the attorney’s express notification to the client that the attorney will perform no further services, or, if the attorney remains silent, may be inferred from the circumstances.”
Rejecting the dicta of three previous state Court of Appeal cases, the justice said that continuous representation should be viewed objectively from the client’s perspective. Moreover, he said, the reasonableness of a client’s belief that her attorney would provide further legal services in a particular matter “is predominantly a question of fact for the trier of fact.”
The court concluded that the evidence raised “triable issues of fact as to whether the limitations period was tolled based on continuing representation, and, if so, whether it was tolled for a period sufficient to make Gonzalez’s action timely.”
Attorneys on appeal were Robert J. Younger of The Younger Law Firm for the plaintiff and Ave Buchwald of Blumberg Law Corporation for the defendant.
The case is Gonzalez v. Kalu, 06 S.O.S.
Copyright 2006, Metropolitan News Company