On 02/27/2014 ALLEN LETGOLTS filed a Contract - Professional Negligence lawsuit against SCOTT MARKS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ALLAN J. GOODMAN, JOSEPH R. KALIN, DANIEL S. MURPHY, MARC MARMARO and MARY H. STROBEL. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
ALLAN J. GOODMAN
JOSEPH R. KALIN
DANIEL S. MURPHY
MARY H. STROBEL
DOES 1 TO 50
ENGSTROM LIPSCOMB AND LACK
MARKS LAW FIRM INC. THE
CHARLES A. PRESSMAN ESQ. DOE 4
DAVID H. PIERCE & ASSOCIATES PC DOE 3
MARKS LAW FIRM INC. THE SUMM. JUDGM
ENGSTROM LIPSCOMB AND LACK SUMM. JUD
PLATTNER LAW OFFICES
MCGONIGLE TIMOTHY DESIDERIO ESQ.
PLATTNER GABRIELLA BARBARA
LACK WALTER J. ESQ.
HOLLINS BYRON SPENCER ESQ.
TEEL HOLLY MARIE ESQ.
COESTER THOMAS MATTHEW
LACK WALTER JOHN ESQ.
3/14/2018: PLAINTIFF'S RESPONSE TO ENGSTROM LIPSOMB & LACK'S SEPARATE STATEMENT OF UNDISPUTED FACTS; PLAINTIFF'S ADDITIONAL UNDISPUTED MATERIAL FACTS
3/14/2018: DECLARATION OF GABRIELLA PLATTNER IN OPPOSITION TO DEFENDANT ENGSTROM, LIPSCOMB & LACK'S MOTION FOR SUMMARY JUDGMENT
3/14/2018: DECLARATION OF ALLEN LETGOLTS IN OPPOSITION TO DEFENDANT ENGSTROM, LIPSCOMB & LACK'S MOTION FOR SUMMARY JUDGMENT
3/14/2018: PLAINTIFF'S RESPONSE TO DEFENDANT THE MARKS LAW FIRM'S SEPARATE STATEMENT OF UNDISPUTED FACTS; PLAINTIFF'S ADDITIONAL UNDISPUTED MATERIAL FACTS
3/22/2018: DEFENDANT ENGSTROM, LIPSCOMB & LACK'S REPLY MEMORANDUM TO PLAINTIFFS' OPPOSITION TO DEFENDANT ENGSTROM, LIPSCOMB & LACK'S MOTION FOR SUMMARY JUDGMENT
5/18/2018: SUBSTITUTION OF ATTORNEY
8/27/2018: Minute Order
12/24/2015: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE
6/9/2016: JOINT STATUS CONFERENCE STATEMENT AND ETC.
9/2/2016: NOTICE OF RULING
2/27/2017: DILIGENCE DECLARATION
3/6/2017: SUBSTITUTION OF ATTORNEY-CIVIL (WITHOUT COURT ORDER)
4/14/2017: Minute Order
4/18/2017: APPLICATION, DECLARATION AND [PROPOSED] ORDER TO SERVE THE SECRETARY OF STATE
6/26/2017: DEFENDANTS' ANSWER TO THIRD AMENDED COMPLAINT
11/28/2017: CIVIL DEPOSIT
Hearingat 08:30 AM in Department 32 at 111 North Hill Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearingat 08:30 AM in Department 32 at 111 North Hill Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Docketat 08:37 AM in Department 32, Daniel S. Murphy, Presiding; Jury Trial - Not Held - Advanced and Continued - by CourtRead MoreRead Less
Docketat 08:37 AM in Department 32, Daniel S. Murphy, Presiding; Final Status Conference - Not Held - Advanced and Continued - by CourtRead MoreRead Less
DocketAnswer (to Fifth Amended Complaint); Filed by Charles A. Pressman, Esq. (DOE 4) (Defendant); David H. Pierce & Associates PC (DOE 3) (Defendant)Read MoreRead Less
Docketat 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Status Conference (re BC720695) - HeldRead MoreRead Less
DocketMinute Order ( (Status Conference re BC720695)); Filed by ClerkRead MoreRead Less
Docketat 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Status Conference (re BC720695) - Not Held - Rescheduled by CourtRead MoreRead Less
DocketNotice of Ruling RE Demurrer to Fifth Amended ComplaintRead MoreRead Less
Docketat 1:55 PM in Department 32, Daniel S. Murphy, Presiding; Ruling on Submitted MatterRead MoreRead Less
DocketMinute OrderRead MoreRead Less
DocketREQUEST FOR CONTINUANCE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketSUMMONS FOR FIRST AMENDED COMPLAINTRead MoreRead Less
DocketFirst Amended Complaint; Filed by Plaintiff/PetitionerRead MoreRead Less
DocketFIRST AMENDED COMPLAINT FOR: 1. PROFESSIONAL NEGLIGENCE, ETCRead MoreRead Less
DocketComplaint; Filed by Allen Letgolts (Plaintiff)Read MoreRead Less
DocketCOMPLAINT FOR: 1. PROFESSIONAL NEGLIGENCE; ETC.Read MoreRead Less
DocketSUMMONSRead MoreRead Less
Case Number: BC537637 Hearing Date: January 13, 2020 Dept: 32
ALLEN LETGOLTS & GABRIELLA PLATTNER
THE MARKS LAW FIRM, INC., et. al.
Case No.: BC537637
Hearing Date: January 6, 2020
[TENTATIVE] order RE:
Motion for Summary judgment
Plaintiffs Allen Letgolts (“Letgolts”) and Gabriella Plattner (“Plattner”) (collectively, “Plaintiffs”) commenced this legal malpractice action on February 27, 2014. Defendants David H. Pierce and Associates, PC (“Pierce & Associates”) and Charles A. Pressman (“Pressman”) (collectively, “Defendants”) were added to this lawsuit pursuant to Doe Amendments filed on February 23, 2018. The operative pleading is the Fifth Amended Complaint (“FAC”) filed against Defendants on September 17, 2018. The FAC asserts a single cause of action for professional negligence. The FAC alleges in pertinent part as follows.
In December 2007, Plaintiffs hired a contractor Boris Pinchevskiy (“Pinchevskiy”) to perform remodeling work on their home. Pinchevskiy’s work was negligent, causing extensive damage to their property. In November 2009, Plaintiffs retained attorney Scott Marks (“Marks”), and Marks initiated a lawsuit against Pinchevskiy and others entitled Gabriella Plattner, et al. v. Martiza Hartnett, et al., Case No. BC425940 (“Underlying Action”). Pinchevskiy did not retain an attorney to defend himself in the action. Despite this, Marks failed to obtain a default judgment against Pinchevskiy and withdrew from the case in July 2012.
In October 2012, Plattner consulted with David. H. Pierce (“Pierce”) of Pierce & Associates concerning the case. Pierce expressed interest in representing Plaintiffs in the Underlying Action and completing the case that Marks had begun. Plaintiffs signed a retainer agreement with Pierce. The purpose and objective of Pierce’s representation was to obtain and collect on a judgment against Pinchevskiy and his insurance carrier to redress Plaintiffs for their injuries arising from his negligent remodeling work.
After several delays and rejected requests for entry of default, Defendants obtained a default judgment against Pinchevskiy for approximately $3.5 million on June 15, 2015. Defendants, however, failed to keep Pinchevskiy’s insurance carrier NCIC apprised of the status of Plaintiffs’ claim. About a month later, NCIC filed for liquidation. Defendants deemed it necessary to file a claim in NCIC’s liquidation proceeding in Montana. Defendants continued to represent Plaintiffs in the liquidation proceedings in Montana through September 11, 2017. But for Defendants’ negligence, including their lack of due diligence in obtaining a default judgment, Plaintiffs would have been able to collect a judgment from NCIC in the range of $2 million.
CCP section 437c(c) states: “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” A material fact is one that “must relate to some claim or defense in issue under the pleadings, and it must also be essential to the judgment in some way.” (Riverside County Community Facilities District v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 653.) The court may not weigh the evidence. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 39.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (CCP § 437c(f)(2).) The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51.)
REQUESTS FOR JUDICIAL NOTICE
Defendants’ requests for judicial notice are GRANTED. (Evid. Code § 452(d).)
Defendants move for summary judgment on Plaintiffs’ FAC. Defendants argue that Plaintiffs’ Doe Amendments adding Defendants to this action are invalid and thus do no relate back to the filing date of the original complaint for purposes of the statute of limitations. Defendants contend that, absent this relation back, Plaintiffs’ sole cause of action s is time-barred.
CCP section 474 “permits a plaintiff to amend complaints by adding parties as Doe defendants ‘when the plaintiff is ignorant of the name of a defendant’ at the time the complaint is filed.” (Davis v. Marin (2000) 80 Cal.App.4th 380, 386.) To be effective, “the plaintiff must actually be ignorant of the Doe defendant’s name, i.e., ‘ignorant of the facts giving rise to a cause of action against that defendant.’ ” (Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1143.) If the requirements of CCP section 474 are met, “the amendment is deemed to ‘relate back’ to the filing date of the original complaint for purposes of the statute of limitations.” (Ibid.) “Failure to comply with Code of Civil Procedure section 474 does not prevent a plaintiff from filing an amendment adding a new defendant; however, it does prevent the amendment from relating back.” (Id. at 1144.) In other words, the invalidity of these Doe Amendments is immaterial if Plaintiffs’ cause of action is not time-barred without application of the relation back doctrine.
CCP section 340.6 is the governing statute of limitations for legal malpractice claims. The statute states in relevant part: “An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced 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, or four years from the date of the wrongful act or omission, whichever occurs first.”
The statute is subject to a well-known continuous representation tolling provision. This provision tolls the limitations period during the time that “[t]he attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.” (CCP § 340.6(a)(2).) This provision “is rooted in two considerations: it prevents the attorney from defeating a malpractice action by continuing to represent the client until the statute of limitations has run; and it avoids forcing the client to file a lawsuit that would disrupt the ongoing attorney-client relationship, which would prevent the negligent attorney from attempting to correct or minimize the error.” (Truong v. Glasser (2009) 181 Cal.App.4th 102, 116.) “The test for whether the attorney has continued to represent a client on the same specific subject matter is objective, and ordinarily the representation is on the same specific subject matter until the agreed tasks have been completed or events inherent in the representation have occurred.” (Lockton v. O’Rourke (2010) 184 Cal.App.4th 1051, 1063.) The question of whether the continuous representation tolling provision applies is a question of fact. (See Truong, supra, 181 Cal.App.4th at 116 (“The inquiry here is whether, using an objective standard, there is evidence raising a triable issue of fact about whether there was an ongoing relationship and activities in furtherance of the specific subject matter in which the alleged wrongful act or omission occurred.”).)
In the FAC, Plaintiffs were clearly cognizant of the governing statute of limitations. Plaintiffs noted that Defendants had demurred to the Fourth Amended Complaint on the grounds that they were not proper Doe defendants, that the relation back doctrine did not apply, and that Plaintiffs’ claims were subsequently time-barred. (FAC ¶ 39.) To circumvent this objection, Plaintiffs allege in the FAC that they did not discover that they were damaged by Defendants’ negligence until January 2018, the same month that they filed the Doe amendments. (FAC ¶ 37.) Plaintiffs also allege that Defendants “represented Plaintiffs continuously on the same matter from November 2012 through at least October 16, 2017.” (FAC ¶ 46.) While acknowledging that the matter was litigated in two different forums — Los Angeles Superior Court and Montana District Court — Plaintiffs allege that the representation regarded the same subject matter, viz., obtaining and collecting on a judgment against Pinchevskiy and his insurance carrier to redress Plaintiffs for their injuries arising from Pinchevskiy’s negligent remodeling work. (Ibid.)
Defendants have not contested that they continued to represent Plaintiffs in the Montana proceedings within a year of the Doe amendments’ filing. Instead, Defendants contend that the continuous representation tolling provision does not apply because the “specific subject matter in which the alleged wrongful act or omission occurred” was the attempt to obtain a default judgment against Pinchevskiy in the Underlying Action in Los Angeles Superior Court. Defendants argue that the liquidation proceeding in the Montana District Court was “a completely different legal proceeding, pertaining to a liquidation of an insurance carrier, and not to the obtaining of any default judgment.” (Mot. at 13.)
Defendants’ argument is unpersuasive. Defendants provide no legal authority to support the premise of their argument — that an attorney’s representation of a client in two different judicial forums precludes the conclusion that the attorney “continue[d] to represent the” client with respect to the same “specific subject matter in which the alleged wrongful act or omission occurred.” Indeed, such a premise is unfounded as it conflates different specific subject matters with different judicial fora. As this case indicates, an attorney could be hired for a specific subject matter — e.g., obtaining a default judgment against a defendant and collecting on it from the defendant and his insurance carrier (FAC ¶ 46) — and such a retention could entail litigation in several fora because the object of the retention requires such diverse litigation.
The issue of whether Defendants continued to represent Plaintiffs in the same “specific subject matter” is a question of fact. Defendants have not made a prima facie showing in their favor on this question because their evidence gives rise to the reasonable inference that the Los Angeles Superior Court and Montana District Court proceedings were based on the same specific subject matter. Specifically, Defendants’ evidence and memorandum show that the Montana proceedings were pursued because of collection efforts flowing from the Los Angeles proceedings. Bolstering this, in opposition, Plaintiffs have produced the parties’ retainer agreement which notes in pertinent part: “Clients are hiring Attorney to represent Clients relating to collection of the judgment obtained by Atty against Alliance Services West and Boris Pinchevskiy relating to construction performed at their property….” (Plattner Decl. Ex. 1 (emphasis added).) In later correspondence between Plattner and Pierce, Pierce confirmed that he would execute the default judgment against Pinchevskiy’s insurance carrier. (Plattner Decl. Ex. 2.) Viewed in light of the clear nexus between the Los Angeles Superior Court proceedings and the Montana District Court proceedings, this evidence establishes a triable issue of material fact as to whether Defendants’ representation of Plaintiffs in the Montana proceedings regarded the same specific subject matter.
Defendants’ motion for summary judgment on the FAC is DENIED.