Friday, March 15, 2019
Court of Appeal:
Contention Rejected That Statute of Limitation on Legal Malpractice Actions Was Tolled Because Fired Lawyer Continued to Perform Minimal Tasks, Didn’t Formally Withdraw
By a MetNews Staff Writer
A Woodland Hills attorney yesterday lost her bid in the Court of Appeal for a reinstitution of her action against a lawyer and his firm over allegedly botched representation in her divorce case, with this district’s Div. Five rejecting her contention that the one-year statute of limitation on malpractice actions was tolled during the period when the defendants supposedly continued to represent her even after she had picked up her file.
Acting Presiding Justice Lamar Baker wrote the opinion, which was not certified for publication. It affirms Los Angeles Superior Court Judge Teresa Beaudet’s granting of summary judgment in favor of attorney Dean Masserman and his Woodland Hills law firm of Vorzimer Masserman.
The plaintiff, Lesa Slaughter, on March 26, 2014, sent an email to her husband’s downtown Los Angeles lawyer, Catherine Bohen, in which she said:
“Masserman is no longer my attorney, and I write to you pro per.”
She picked up her case file on April 4, 2014.
Slaughter had to nag Masserman to file a notice of withdrawal, which he did on Oct. 30, 2014. She brought her malpractice action on Oct. 30, 2015.
In contesting the defendants’ insistence that her action was time-barred, she did not argue that representation continued until Oct. 30, 2014; rather she contended it persisted until July of 2015 based on continued advice from Masserman up until then.
CCP Section Cited
She pointed to Code of Civil Procedure §340.6(a)(2) which provides for a tolling of the statute where “[t]he attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.”
Beaudet found that representation of Slaughter by the defendants ended no later than March 26, 2014, when Slaughter told Bohen she was now in pro per.
Baker said in yesterday’s opinion:
“We hold the attorney-client relationship between plaintiff and defendants ended in April 2014, over a year before plaintiff filed suit on October 30, 2015, and did not thereafter continue for purposes of tolling the applicable one-year statute of limitations. By the end of April, plaintiff had informed Bohen she was representing herself, retrieved her file from defendants, and told Masserman she needed from him a notice of withdrawal as counsel.”
Withdrawal Not Essential
The retainer agreement between Slaughter and the law firm provided that the client “may discharge” the lawyers “at any time.” Baker observed:
“Although Masserman did not file a notice of withdrawal in court until several months later, that is immaterial: plaintiff had the right to end the relationship unilaterally—as the retainer agreement she signed expressly recognized—and her conduct demonstrated she did so.”
“In the weeks thereafter, Masserman sporadically communicated with plaintiff and even performed some minimal tasks at her request, but these actions were performed without charge and undertaken in the context of his repeated reminders that he was no longer her lawyer and plaintiff had taken over her own case. Even in the light most favorable to plaintiff, no reasonable jury could find this post-termination conduct constituted continued representation.”
Retention of Funds
Slaughter also asserted that representation continued because the firm had not disbursed to her a $1,146.19 credit she had with it. Baker dismissed the notion that the retention of some money belonging to Slaughter “suggests plaintiff reasonably believed defendants represented her after April 2014.”
The jurist wrote:
“[P]laintiff overpaid for services rendered. Even if it is not clear why defendants did not promptly return the money, nothing in the record suggests the money was not disbursed because it was intended as a retainer to guarantee availability for future legal services.”
The case is Slaughter v. Masserman, B282420.
Former Los Angeles County Bar Association President Margaret P. Stevens, a mid-Wilshire sole practitioner, represented Slaughter. Stephen M. Caine and Frances M. O’Meara of the West Los Angeles firm of Thompson Coe & O’Meara acted for Masserman.
Copyright 2019, Metropolitan News Company