Metropolitan News-Enterprise


Wednesday, September 20, 2006


Page 1


Staleness of Underlying Claim Fatal to Malpractice Suit—C.A.


By TINA BAY, Staff Writer


 The plaintiff in a toxic mold lawsuit had no viable malpractice claim against her lawyers over their settlement of her case, since her cause of action was time-barred before she consulted them, the Third District Court of Appeal ruled yesterday.

 The court affirmed Sacramento Superior Court Judge Loren E. McMaster’s order dismissing a legal malpractice and breach of fiduciary duty lawsuit against Sacramento attorneys Morton L. Friedman and C. Brooks Cutter.

 Tamara Slovensky retained Friedman and Cutter in 2000 to prosecute her toxic mold personal injury suit against Sequioa Fairways Apartments. Slovensky, one of many other tenants and former tenants similarly suing the Fairways, allegedly suffered from headaches, respiratory ailments, chronic fatigue, and various other health problems due to toxic mold exposure while living at the apartments.

 Friedman and Cutter represented a number of toxic mold plaintiffs living at the complex in addition to Slovensky, and in September 2001 reached a global settlement in the matter as to all of their clients. Slovensky’s case settled for $340,000.

Coerced Settlement

 In a post-settlement complaint against the attorneys, Slovensky alleged that they negligently failed to obtain an adequate recovery. Without properly analyzing her individual case, she claimed, her attorneys coerced her into accept a quick settlement—by harassing her with unannounced home visits, for instance—thereby preventing her from proving greater damages at trial.

 Additionally, Slovensky alleged that Friedman and Cutter breached their fiduciary duties toward her by misrepresenting material facts in the course of the litigation, for example telling her that her case was not being treated as part of a global settlement and that the medical information she had was unreliable.

 Moving for summary judgment, Friedman and Cutter asserted that both claims failed as a matter of law because at the time Slovensky retained their services, her underlying personal injury claim was barred by the one-year statute of limitations then in effect.

Discovery of Claim

They argued Slovensky was on notice of her exposure to toxic mold from the fall of 1997, when she began experiencing water intrusion into her unit. In 1998, they alleged, the Fairways sent her multiple notices apprising her of a potential mold problem and requesting entry into her unit for inspection. They further alleged that in 1999, prior to moving out, Slovensky photographed stains on her units walls that she said looked like runny mascara.

 Since her claim was time-barred and would have been tossed out by the court, she could not have obtained a better result than what the settlement afforded her, and thus could not prove the element of damages required for either a malpractice or a fiduciary duty claim, the attorneys said.

 McMaster granted Friedman and Cutter summary judgment, rejecting Slovensky’s claim that she was unaware of her toxic mold exposure until a television news show apprised her of the issue in 2000. Slovensky had argued that prior to2000, she did not know the stains on her walls could be mold—and that her health problems could be mold-related—because she thought mold was “fuzzy,” not “runny” in appearance.

 Writing for the court of appeal, Justice Richard Sims III said that Slovensky had reason to know of the existence of toxic mold in her apartment when Sequoia Fairways notified her of possible mold problems in 1998. A reasonable person in her shoes whose apartment suffered from significant water intrusion, would have “put two and two together” and permitted an inspection of her apartment to discover she had a toxic mold claim, Sims explained.

 “[P]laintiff . . . believes she was entitled to put her head in the sand and ignore all warning signals for years merely because she thought she could explain the facts in some other way,” the justice wrote. “When it comes to statutes of limitations, the law disagrees.”

 Because Slovensky’s claim was time-barred on the day she filed it, she was entitled to no recovery, and was therefore not damaged by her attorneys’ alleged malpractice, Sims explained.

 In fact, he noted, the settlement Friedman and Cutter obtained for her was a windfall:

 “If a plaintiff has let the limitations period on her cause of action expire because she clung to a mistaken theory until it was too late, she will normally lose her lawsuit. That did not happen to plaintiff here because defendants won her a settlement. If she had fired them so as to proceed apart from the other plaintiffs, The Fairways certainly would have found the fatal flaw in her case. It had no incentive to do so as long as the case was part of a package settlement.”

 As to Slovensky’s other claim, Sims said that Friedman and Cutter undisputedly breached their fiduciary duty to her, but she could still not establish any triable issue of fact as to damages.

 Justices Coleman Blease and Tami Cantil-Sakauye concurred in the opinion.

 Sacramento attorney Betsy S. Kimball, who represented Friedman and Cutter on appeal, told the MetNews her clients agreed with the court’s result, but clarified that they never raised or conceded the issue of breach in their summary judgment motion.

 “My clients did an exceptionally good job for all of their clients, former and current tenants of The Fairways, and achieved a very positive outcome financially for all of them,” she said. “I might point out the absurdity of all of this in light of the fact that the Court of Appeal found that the $340,000 was a windfall for Ms. Slovensky because her claim against The Fairways was time-barred at the time it was brought.”

 Slovensky’s appellate counsel, Guy D. Calladine of Carlson, Calladine & Peterson in San Francisco, could not be reached for comment.

 The case is Slovensky v. Friedman, 06 SOS 5028.


Copyright 2006, Metropolitan News Company