Metropolitan News-Enterprise


Friday, July 28, 2017


Page 3


C.A. Shows Deference to Deceased Lawyer—Withholds Identity


By a MetNews Staff Writer


Div. Two of this district’s Court of Appeal has apparently determined that the reputation of an attorney who is deceased should not be besmirched, eliminating from an opinion the identity of the lawyer whose $317,800.53 defalcation led to the controversy before the court.

In an unpublished opinion filed Wednesday, the panel decided that a malpractice action against a lawyer who allegedly provided negligent representation in seeking a statutorily provided doubled recovery of the purloined funds, and against opposing counsel, was time-barred. The client who was cheated out of funds was Albert Duclos, now deceased; the lawyer who cheated him was Kelly W. Bixby, also deceased; Bixby was referred to in the opinion by Justice Brian Hoffstadt only as “Duclos’s attorney.”

Walter R. Burkley, who represented Duclos’s estate, said yesterday that no party to the appeal requested confidentiality with respect to the attorney’s identity.

Funds Not Released

The case, decided Wednesday, harks to Bixby’s representation of Duclos in 2009 in connection with his  dissolution of marriage. The family home was sold and Duclos’s share of the proceeds—the $318,000 in issue—was placed in the lawyer’s attorney-client trust fund, and never released to the client.

Duclos died and his estate on Jan. 19, 2011, sued Bixby—then still alive—in Probate Court. It also sought a doubling of damages, pursuant to Probate Code §859, based on “bad faith,” and for attorney’s fees.

Then-Los Angeles Superior Court Judge Dudley Gray II (now retired) on June 8 of that year, ordered Bixby to pay over the withheld funds and provide an accounting. He didn’t.

Instead, he hired James Scott Bovitz, of Bovitz & Spitzer, who filed bankruptcy for him on Sept. 28.

The Bankruptcy Court, on Feb. 21, 2012, granted the estate relief from the automatic stay so that proceedings could resume, but its order wasn’t entered until March 20.

Double Damages Granted

Meanwhile, back in the Superior Court in Torrance, Gray on March 7 granted double damages.

Div. Eight of this district’s Court of Appeal on Nov. 2, 2014, in an unpublished opinion, reversed the double-damages award. Justice Elizabeth Grimes explained:

“At the time of the March 7, 2012 hearing on the Probate Code section 859 petition, the order granting the estate’s motion for relief from the stay had not been entered on the bankruptcy court’s docket. Therefore, the order granting relief from the stay was not effective, and the stay was still in place at the time of the probate court’s hearing on the petition….

“We recognize that the probate court’s order doubling Mr. Bixby’s liability was entered in the minutes of the probate court on July 11, 2012, after the order lifting the stay was entered in the bankruptcy court docket on March 20, 2012. But the probate court had no legal basis for entering a minute order reporting proceedings that were conducted on March 7, 2012, before the stay had been lifted. The order granting the Probate Code section 859 petition is void because the court issued the order in proceedings held in violation of the stay, and, therefore, it must be reversed.”

Bixby died in 2013.

Attorneys Sued

Duclos’s estate was represented at the March 7, 2012 hearing by Torrance attorney Linda J. Retz. On Aug. 27, 2015, the estate sued her and her law firm for failing to apprise Gray that the stay was still in effect, and sued Bovitz and his firm on the same basis.

Los Angeles Superior Court Judge Rolf M. Treu determined that the action was time-barred under Code of Civil Procedure §340.6 which requires that legal malpractice actions be filed “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.”

Treu said the estate “suffered actual injury and was on inquiry notice at least as of November 22, 2013.” That’s when it filed its respondent’s brief in the case before Div. Eight, replying to the contention that Gray had entered his order while a stay was in effect.

Hoffstadt’s Opinion

In his opinion affirming the judgments of dismissal, Hoffstadt said:

“The time to file the malpractice lawsuit at the latest started running on November 22, 2013. By that time, the estate’s newly hired lawyers had filed the estate’s brief in the appeal of the probate court’s double damages order responding, in part, to the attack on that order as void….For obvious reasons, the estate was also on notice of the Retz defendants’ and Bovitz defendants’ potential negligence, as well as its resulting injury, by the time it filed its respondent’s brief.”

The case is Cavaretta v. Retz,  B270928.

Burkley was joined by Deborah C. Keesey in representing the estate. Their firm is Burkley, Brandlin, Swatik & Keesey.

Stephen R. Rykoff acted for Retz and her law firm.

Lawyers for Bovitz and Bovitz & Spitzer Lewis were Raul L. Martinez, Patrik Johansson, and Kenneth C. Feldman of Brisbois Bisgaard & Smith.

Feldman commented:

“I had the honor and privilege both in the trial court and in the Court of Appeal of representing J. Scott Bovitz, who is one of the finest bankruptcy attorneys I know.  In fact, I have previously retained Mr. Bovitz as an expert regarding bankruptcy matters.  The Court of Appeal—like the trial court—appropriately found the statute of limitations barred this frivolous claim.”    


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