Tosca v. Brigham and Gaustad
Filed 9/14/06 Tosca v. Brigham and Gaustad CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
| MARC TOSCA, Plaintiff and Appellant, v. BRIGHAM AND GAUSTAD et al., Defendants and Respondents. | A112094 (Mendocino County Super. Ct. Nos. CV 79951 & CV 83255) |
I.
Introduction
In this appeal, appellant Marc Tosca (appellant) challenges rulings in two cases consolidated in the trial court. He contends it was error for the trial court to grant summary judgment in favor of respondents Brigham and Gaustad and Thomas Brigham on their claim for unpaid attorney fees, and to grant their motion to dismiss appellant's claim of legal malpractice. We affirm the summary judgment, and reverse the dismissal of appellant's legal malpractice action.
II.
Factual and Procedural Backgrounds
On July 8, 1998, respondents notified appellant of their intention to sue for unpaid attorney fees of more than $26,000, and advised him of his right to arbitrate the dispute under a program run by the local county bar association. Appellant elected arbitration, and the dispute was arbitrated on October 7, 1998. A decision was filed by the arbitrator on October 10 awarding respondents $24,814.04.
On November 9, 1998, appellant filed a petition for a trial de novo pursuant to Business and Professions Code section 6204, subdivision (c), seeking a trial of the fee dispute (General Case No. 79951, hereinafter referred to as the Fee Dispute Action). Thereafter, on April 28, 2000, appellant filed a separate complaint for professional negligence against respondents and others.[1] A first amended complaint for damages for professional negligence was filed on July 24, 2000 (Case No. CV G-00-83255, hereinafter referred to as the Legal Malpractice Action).
By minute order dated October 26, 2000, the Fee Dispute Action was set for nonjury trial to commence on March 5, 2001. Appellant contested the nonjury trial setting, which was denied by Superior Court Judge Conrad Cox on December 1, 2000 based on appellant's failure to demand a jury in his case management conference statement. The following month, on January 9, 2001, appellant filed a peremptory challenge against Judge Cox in the Fee Dispute Action pursuant to Code of Civil Procedure section 170.6.[2] Judge Cox then assigned both the Fee Dispute and Malpractice Actions for all purposes to Judge Richard J. Henderson, who consolidated the cases and granted appellant's request to vacate the trial date in the Fee Dispute Action, despite respondents' opposition. On the court's own motion, Judge Henderson then severed the Fee Dispute and Legal Malpractice Actions from the issues relating to the claims asserted against appellant's former counsel in the fee arbitration.
On June 20, 2001, appellant filed a notice of appeal after the trial court granted a discovery motion filed by respondents, and awarded sanctions against appellant. The matter was on appeal until it was dismissed as a nonappealable order, and the remittitur issued on September 28, 2001.
Thereafter, respondents filed a motion for summary judgment as to the Legal Malpractice Action on the grounds that the action was barred by the applicable statute of limitations. The motion was opposed by appellant. On August 16, 2002, Judge Henderson denied the motion on the ground that there existed triable issues of fact as to when appellant discovered or should have discovered the malpractice, and therefore it could not be determined as a matter of law if the statute of limitations had run.
More than a year later, on November 18, 2003, appellant filed a â€
