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EDWARD D. HAAS (State Bar # 76647) FLED ALAND « eouy
RUSSELL S. ROECA (State Bar # 97297)
DANIEL W. HAGER (State Bar # 121515) OCT i!
Wb
ROECA HAAS HAGER LLP
CLENS Op
180 Sutter Street, Suite 200 seo
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San Francisco, CA 94104 mur| a3
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Telephone: (415) 352-0980 |
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DEPUTY
Facsimile: (415) 352-0988
Attorneys for Defendants
THE MICHAEL BLUMENFELD CORPORATION as
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successor in interest to THE MICHAEL BLUMENFELD
LAW CORPORATION, MICHAEL BLUMENFELD, a
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Professional Corporation, and MICHAEL JOEL
BLUMENFELD, deceased
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SUPERIOR COURT OF CALIFORNIA
10
94104
COUNTY OF ALAMEDA
aal
CA
12
415.352.0988
Francisco,
VELMA SONNY-SONIA, a.k.a. VELMA Case No. RG-062793 17
LLP
SONIA,
13 NOTICE OF ORDER GRANTING
Hager
San
Plaintiff, MOTION FOR SUMMARY JUDGMENT
Fax
14
200,
Haas
415.352.0980
VS.
Suite
15
Roeca
Street,
THE MICHAEL BLUMENFELD LAW ACTION FILED: July 4, 2006
16 CORPORATION, MICHAEL TRIAL DATE: = April 25, 2008
Sutter
BLUMEMNFELD a Professional
17 Corporation, MICHAEL JOEL
180
BLUMENFELD, deceased, and DOES 1
18 through 50, inclusive,
19 Defendants.
20
21
22
23
24
25 TO ALL PARTIES, and to their attorneys of record:
26 NOTICE IS HEREBY GIVEN that on September 14, 2007 the Honorable David Hunter
27 of the above-entitled court entered an order granting defendants’ motion for summary judgment, a
28 true and correct copy of which isattached hereto as Exhibit A.
NOTICE OF ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
CASE NO. RG-06279317
‘ ° @ ©
Dated: September 26, 2007 ROECA NAAS HAGER LLP
WN
\
By:
WO
Daniel W. Hager
Attorneys for Defendants
FB
THE MICHAEL BLUMENFELD
CORPORATION as successor in interest to THE
A
MICHAEL BLUMENFELD LAW
CORPORATION, MICHAEL BLUMENFELD,
“sD
a Professional Corporation, and MICHAEL
JOEL BLUMENFELD, deceased
10
11
94104
12
CA
415.352.0988
Francisco,
13
Hager LLP
14
San
Fax
200,
Haas
15
415.352.0980
Suite
Roeca
16
Street,
17
180Sutter
18
19
20
21
22
23
24
25
26
27
28
NOTICE OF ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
CASE NO. RG-06279317
2
Webb, Matthew J ROECA HAAS HAGER LLP
409 13th Street, 17th Floor Attn: Roeca, Russell S
Oakland, CA 94612- 180 Sutter Street
Suite 200
San Francisco, CA 94104
Superior Court of California, County of Alameda
Hayward Hall of Justice
Sonny-Sonia No. RG06279317
Plaintiff/Petitioner(s)
Order
VS.
Motion for Summary Judgment
The Michael Blumenfeld Law Corporation Granted
Defendant/Respondent(s)
(AbbreviatedTitle)
The Motion for Summary Judgment was setfor hearing on 09/14/2007 at 09:30 AM in Department 520
before the Honorable David Hunter. The Tentative Ruling was published and has not been contested.
IT IS HEREBY ORDERED THAT:
The tentative rulingis affirmed asfollows: Defendants’ Motion forSummary Judgment is GRANTED.
The statuteof limitations for an attorney malpractice claim isone year afterPlaintiff discovers, or
should have discovered, the factsconstitution the wrongful act or omission, or four years from the date
of the wrongful act or omission, whichever occurs first. (See Code of Civil Procedure § 340.6.)
Here, the undisputed facts establish thatApril 7,2004, Plaintifffiled a prioraction against Defendants
for legal malpractice (Alameda County Case No. RG04-149832) based on the same conduct that is the
subject of this action. Therefore, Plaintiffwas aware of the facts constituting Defendants' wrongful acts
or omissions no laterthan April 7,2004, more than two years before the present action was filedon
July 14,2006.
Plaintiffcontends that the statuteof limitations on her claim was tolled until June 2, 2006, because
Defendants continued to represent her in her bankruptcy matter (but not the Adversarial Proceeding in
Bankruptcy Court) untilJune 2,2006. (See Code of Civil Procedure § 340.6(a)(2) and Plaintiff's
Declaration, paragraph 14.) Neither the evidence nor the law supports Plaintiff'scontention.
Once a client acts unmistakably to end an attorney-clientrelationship, the clienthas no equitable claim
to tollthe statute oflimitations past that period. (See Hensley v. Caietti (1993) 13 Cal. App.4th 1165,
1172-1173.) Here, the undisputed evidence demonstrates that on May 19, 2003, Plaintifffiled aNotice
of Substitution of Counsel inBankruptcy Court indicating that Defendants were no longer her attorney,
and thather new counsel was Matthew Webb. That Notice does not differentiatebetween Plaintiff's
bankruptcy matter and the Adversarial Proceeding or indicate thatMr. Webb was only substituting for
Defendants inthe Adversarial Proceeding.
The evidence further demonstrates that on March 12, 2003, Defendants provided Plaintiffwith afinal
accounting for alllegal services performed, refunded allunused retainer sums, and closed theirfileson
Plaintiff'scase. (See the Declaration ofHelga Gruber and the exhibit attached thereto.) Finally, the
evidence demonstrates that on September 16, 2003, Plaintiffrequested thatDefendants surrender her
"entirecase file"pertaining to her bankruptcy matter and the Adversarial Proceeding to Mr. Webb.
(See the Declaration of Laura Perrault and the exhibit attached thereto.) Both theNotice of Substitution
Order
EXHIBIT_A__
of Counsel and Plaintiff'sSeptember 16,2003 letter constituteunmistakable actions to terminate
Plaintiff'sattorney-client relationship with Defendants. Therefore, Plaintiffhas no claim to tollthe
statute of limitationspast that date. (See Hensley, supra.)
Furthermore, as amatter of law Defendants could not represent Plaintiff aftershe filedher prior
malpractice action against them on April 7,2004, because such representation would constitute a
manifest conflictof interest. (See California Rules of Professional Conduct, Rules 3-310 and 3-700.)
Plaintiffhas submitted evidence that she was asked by Defendants’ officemanager, after the death of
Michael Blumenfeld, to sign Substitution of Attorney notices discharging Defendants as her legal
representative. Plaintiff'ssignature on these notices are not sufficient todemonstrate the existence of an
attorney-client relationship between Plaintiff and Defendants when Plaintiffshad already acted
unmistakably to terminate such a relationship no laterthan April 7,2004.
Nor does the fact that theBankruptcy Court's "PACER" records erroneously refer to Mr. Blumenfeld as
Plaintiff'scounsel ofrecord in 2007 demonstrate the existence of an attorney-client relationship, after
Plaintiffhad already filed aNotice of Substitution of Counsel on May 19,2003.
Plaintifffurther argues that because she has not yet sustained any actual injury as a resultof
Defendants' negligence, the statute of limitations istolled. However, once Plaintiff has incurred legal
fees or costs as a resultof an attorney's negligent acts or omissions, Plaintiffhas suffered actual harm
sufficientto begin the running of the statute of limitations. (See e.g.Horne v.Peckham (1979) 97
Cal.App.3d 404, 417.) Here, Plaintiffhas alleged that this happened no laterthan April 7, 2004, when
her prior malpractice action against Defendants was filed.(See Complaint in Case No. RG04-149832,
paragraph 15.) :
If,on the other hand, Plaintiffhas not yet sustained any actual damage as a resultof Defendants’ alleged
negligence and the possibility of ever incurrmg such damages is "speculative" (see Opposition brief,
page 10:5 and 14-15), then this action ispremature. To prevail on a legalmalpractice claim, Plaintiff
must demonstrate actual loss or damage resulting from Defendants’ negligence. Breach of duty causing
only speculative harm isinsufficient to create a cause of action. (See Thompson v. Halvonik (1995) 36
Cal.App.4th 657, 661.)
Plaintiff'sRequest for Judicial Notice is GRANTED. However, the Court only takes judicial notice of
the fact thatthe Bankruptcy Court's "PACER" records contain theindicated information. The Court
does nottake judicial notice of the accuracy of the information inthe PACER records pertaining to who
was or was not Plaintiff's
counsel of record at any given time in theBankruptcy Court actions,
The Court rulesas follows on Defendants' evidentiary objections:
As toPlaintiff'sDeclaration, Objection No. 1is SUSTAINED as inadmissible hearsay without
exception. Objection No. 2 isSUSTAINED as improper opinion testimony on a legalissue, and as
without sufficientfoundation as to whether or not Defendants continued to represent Plaintiff inher
bankruptcy case.
As tothe Request for Judicial Notice, the Objection isOVERRULED, but subject to the Court's
discussion above.
This entire action is DISMISSED.
i. an
Dated: 09/14/2007
Judge David Hunter
Order
PROOF OF SERVICE
I,Peter Korcsinszky, hereby declare:
I am over the age of 18 years and not a party to or interested in the within entitled cause. I
am an employee of Roeca Haas Hager LLP and my business address is 180 Sutter Street, Suite
200, San Francisco, CA 94104. On the date stated below, I served a true copy of:
NOTICE OF ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
aD
By mail, by placing said document(s) in an envelope addressed as shown below. I am
oO
readily familiar with my firm’s practice for collection and processing of correspondence
for mailing with the United States Postal Service. Said correspondence will be deposited
with the United States Postal Service this same day in the ordinary course of business. I
10 sealed said envelope and placed itfor collection and mailing on the date stated below to
the addressee stated below, following the firm’s ordinary business practices.
11
94104
Matthew J.Webb, Esq.
12 Yvette M. Davis, Esq.
CA
Law Offices of Matthew J. Webb
415.352.0988
Francisco,
13 409 13" Street, 17" Floor
LLP
Oakland, CA 94612
Hager
14
San
I declare under penalty of perjury, under the laws of the State of California that the
Fax
200,
Haas
15 foregoing is true and correct, and that this declaration was executed at San Francisco, California
415.352.0980
Suite
on September 26, 2007.
Roeca
16
Street,
17
Wo
180Sutter
18
Peter Koresinszky
19
20
21
22
23
24
25
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G:\Sonny-Sonia\Pleadings\MSJ\MSJ notice.order.doc
28
NOTICE OF ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
CASE NO. RG-06279317
3
Preview
' ninwneee *6 33456" EDWARD D. HAAS (State Bar # 76647) FLED ALAND « eouy RUSSELL S. ROECA (State Bar # 97297) DANIEL W. HAGER (State Bar # 121515) OCT i! Wb ROECA HAAS HAGER LLP CLENS Op 180 Sutter Street, Suite 200 seo WwW eo ; 4gaCOURad y San Francisco, CA 94104 mur| a3 nmeheeneEy pOT Mee joopen Telephone: (415) 352-0980 | kr DEPUTY Facsimile: (415) 352-0988 Attorneys for Defendants THE MICHAEL BLUMENFELD CORPORATION as nN successor in interest to THE MICHAEL BLUMENFELD LAW CORPORATION, MICHAEL BLUMENFELD, a w~ Professional Corporation, and MICHAEL JOEL BLUMENFELD, deceased wo o SUPERIOR COURT OF CALIFORNIA 10 94104 COUNTY OF ALAMEDA aal CA 12 415.352.0988 Francisco, VELMA SONNY-SONIA, a.k.a. VELMA Case No. RG-062793 17 LLP SONIA, 13 NOTICE OF ORDER GRANTING Hager San Plaintiff, MOTION FOR SUMMARY JUDGMENT Fax 14 200, Haas 415.352.0980 VS. Suite 15 Roeca Street, THE MICHAEL BLUMENFELD LAW ACTION FILED: July 4, 2006 16 CORPORATION, MICHAEL TRIAL DATE: = April 25, 2008 Sutter BLUMEMNFELD a Professional 17 Corporation, MICHAEL JOEL 180 BLUMENFELD, deceased, and DOES 1 18 through 50, inclusive, 19 Defendants. 20 21 22 23 24 25 TO ALL PARTIES, and to their attorneys of record: 26 NOTICE IS HEREBY GIVEN that on September 14, 2007 the Honorable David Hunter 27 of the above-entitled court entered an order granting defendants’ motion for summary judgment, a 28 true and correct copy of which isattached hereto as Exhibit A. NOTICE OF ORDER GRANTING MOTION FOR SUMMARY JUDGMENT CASE NO. RG-06279317 ‘ ° @ © Dated: September 26, 2007 ROECA NAAS HAGER LLP WN \ By: WO Daniel W. Hager Attorneys for Defendants FB THE MICHAEL BLUMENFELD CORPORATION as successor in interest to THE A MICHAEL BLUMENFELD LAW CORPORATION, MICHAEL BLUMENFELD, “sD a Professional Corporation, and MICHAEL JOEL BLUMENFELD, deceased 10 11 94104 12 CA 415.352.0988 Francisco, 13 Hager LLP 14 San Fax 200, Haas 15 415.352.0980 Suite Roeca 16 Street, 17 180Sutter 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF ORDER GRANTING MOTION FOR SUMMARY JUDGMENT CASE NO. RG-06279317 2 Webb, Matthew J ROECA HAAS HAGER LLP 409 13th Street, 17th Floor Attn: Roeca, Russell S Oakland, CA 94612- 180 Sutter Street Suite 200 San Francisco, CA 94104 Superior Court of California, County of Alameda Hayward Hall of Justice Sonny-Sonia No. RG06279317 Plaintiff/Petitioner(s) Order VS. Motion for Summary Judgment The Michael Blumenfeld Law Corporation Granted Defendant/Respondent(s) (AbbreviatedTitle) The Motion for Summary Judgment was setfor hearing on 09/14/2007 at 09:30 AM in Department 520 before the Honorable David Hunter. The Tentative Ruling was published and has not been contested. IT IS HEREBY ORDERED THAT: The tentative rulingis affirmed asfollows: Defendants’ Motion forSummary Judgment is GRANTED. The statuteof limitations for an attorney malpractice claim isone year afterPlaintiff discovers, or should have discovered, the factsconstitution the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. (See Code of Civil Procedure § 340.6.) Here, the undisputed facts establish thatApril 7,2004, Plaintifffiled a prioraction against Defendants for legal malpractice (Alameda County Case No. RG04-149832) based on the same conduct that is the subject of this action. Therefore, Plaintiffwas aware of the facts constituting Defendants' wrongful acts or omissions no laterthan April 7,2004, more than two years before the present action was filedon July 14,2006. Plaintiffcontends that the statuteof limitations on her claim was tolled until June 2, 2006, because Defendants continued to represent her in her bankruptcy matter (but not the Adversarial Proceeding in Bankruptcy Court) untilJune 2,2006. (See Code of Civil Procedure § 340.6(a)(2) and Plaintiff's Declaration, paragraph 14.) Neither the evidence nor the law supports Plaintiff'scontention. Once a client acts unmistakably to end an attorney-clientrelationship, the clienthas no equitable claim to tollthe statute oflimitations past that period. (See Hensley v. Caietti (1993) 13 Cal. App.4th 1165, 1172-1173.) Here, the undisputed evidence demonstrates that on May 19, 2003, Plaintifffiled aNotice of Substitution of Counsel inBankruptcy Court indicating that Defendants were no longer her attorney, and thather new counsel was Matthew Webb. That Notice does not differentiatebetween Plaintiff's bankruptcy matter and the Adversarial Proceeding or indicate thatMr. Webb was only substituting for Defendants inthe Adversarial Proceeding. The evidence further demonstrates that on March 12, 2003, Defendants provided Plaintiffwith afinal accounting for alllegal services performed, refunded allunused retainer sums, and closed theirfileson Plaintiff'scase. (See the Declaration ofHelga Gruber and the exhibit attached thereto.) Finally, the evidence demonstrates that on September 16, 2003, Plaintiffrequested thatDefendants surrender her "entirecase file"pertaining to her bankruptcy matter and the Adversarial Proceeding to Mr. Webb. (See the Declaration of Laura Perrault and the exhibit attached thereto.) Both theNotice of Substitution Order EXHIBIT_A__ of Counsel and Plaintiff'sSeptember 16,2003 letter constituteunmistakable actions to terminate Plaintiff'sattorney-client relationship with Defendants. Therefore, Plaintiffhas no claim to tollthe statute of limitationspast that date. (See Hensley, supra.) Furthermore, as amatter of law Defendants could not represent Plaintiff aftershe filedher prior malpractice action against them on April 7,2004, because such representation would constitute a manifest conflictof interest. (See California Rules of Professional Conduct, Rules 3-310 and 3-700.) Plaintiffhas submitted evidence that she was asked by Defendants’ officemanager, after the death of Michael Blumenfeld, to sign Substitution of Attorney notices discharging Defendants as her legal representative. Plaintiff'ssignature on these notices are not sufficient todemonstrate the existence of an attorney-client relationship between Plaintiff and Defendants when Plaintiffshad already acted unmistakably to terminate such a relationship no laterthan April 7,2004. Nor does the fact that theBankruptcy Court's "PACER" records erroneously refer to Mr. Blumenfeld as Plaintiff'scounsel ofrecord in 2007 demonstrate the existence of an attorney-client relationship, after Plaintiffhad already filed aNotice of Substitution of Counsel on May 19,2003. Plaintifffurther argues that because she has not yet sustained any actual injury as a resultof Defendants' negligence, the statute of limitations istolled. However, once Plaintiff has incurred legal fees or costs as a resultof an attorney's negligent acts or omissions, Plaintiffhas suffered actual harm sufficientto begin the running of the statute of limitations. (See e.g.Horne v.Peckham (1979) 97 Cal.App.3d 404, 417.) Here, Plaintiffhas alleged that this happened no laterthan April 7, 2004, when her prior malpractice action against Defendants was filed.(See Complaint in Case No. RG04-149832, paragraph 15.) : If,on the other hand, Plaintiffhas not yet sustained any actual damage as a resultof Defendants’ alleged negligence and the possibility of ever incurrmg such damages is "speculative" (see Opposition brief, page 10:5 and 14-15), then this action ispremature. To prevail on a legalmalpractice claim, Plaintiff must demonstrate actual loss or damage resulting from Defendants’ negligence. Breach of duty causing only speculative harm isinsufficient to create a cause of action. (See Thompson v. Halvonik (1995) 36 Cal.App.4th 657, 661.) Plaintiff'sRequest for Judicial Notice is GRANTED. However, the Court only takes judicial notice of the fact thatthe Bankruptcy Court's "PACER" records contain theindicated information. The Court does nottake judicial notice of the accuracy of the information inthe PACER records pertaining to who was or was not Plaintiff's counsel of record at any given time in theBankruptcy Court actions, The Court rulesas follows on Defendants' evidentiary objections: As toPlaintiff'sDeclaration, Objection No. 1is SUSTAINED as inadmissible hearsay without exception. Objection No. 2 isSUSTAINED as improper opinion testimony on a legalissue, and as without sufficientfoundation as to whether or not Defendants continued to represent Plaintiff inher bankruptcy case. As tothe Request for Judicial Notice, the Objection isOVERRULED, but subject to the Court's discussion above. This entire action is DISMISSED. i. an Dated: 09/14/2007 Judge David Hunter Order PROOF OF SERVICE I,Peter Korcsinszky, hereby declare: I am over the age of 18 years and not a party to or interested in the within entitled cause. I am an employee of Roeca Haas Hager LLP and my business address is 180 Sutter Street, Suite 200, San Francisco, CA 94104. On the date stated below, I served a true copy of: NOTICE OF ORDER GRANTING MOTION FOR SUMMARY JUDGMENT aD By mail, by placing said document(s) in an envelope addressed as shown below. I am oO readily familiar with my firm’s practice for collection and processing of correspondence for mailing with the United States Postal Service. Said correspondence will be deposited with the United States Postal Service this same day in the ordinary course of business. I 10 sealed said envelope and placed itfor collection and mailing on the date stated below to the addressee stated below, following the firm’s ordinary business practices. 11 94104 Matthew J.Webb, Esq. 12 Yvette M. Davis, Esq. CA Law Offices of Matthew J. Webb 415.352.0988 Francisco, 13 409 13" Street, 17" Floor LLP Oakland, CA 94612 Hager 14 San I declare under penalty of perjury, under the laws of the State of California that the Fax 200, Haas 15 foregoing is true and correct, and that this declaration was executed at San Francisco, California 415.352.0980 Suite on September 26, 2007. Roeca 16 Street, 17 Wo 180Sutter 18 Peter Koresinszky 19 20 21 22 23 24 25 26 27 G:\Sonny-Sonia\Pleadings\MSJ\MSJ notice.order.doc 28 NOTICE OF ORDER GRANTING MOTION FOR SUMMARY JUDGMENT CASE NO. RG-06279317 3