Augusta v. Keehn & Assocs.
Plaintiff and appellant Mark Augusta appeals from a summary judgment in favor of his former bankruptcy attorneys, defendants and respondents L. Scott Keehn and Keehn & Associates on Augusta's first amended complaint for professional negligence, breach of fiduciary duty and fraud. In that pleading, Augusta alleged defendants' negligence caused him to lose valuable claims against other attorneys who had represented him in securities arbitrations, leading to a settlement that was $3 million less than if those claims had been included in the settlement. The trial court granted summary judgment on grounds Augusta lacked evidence of causation and damages, and his professional negligence claim against Keehn and his law firm was time barred by the one-year statute of limitations of Code of Civil Procedure[1] section 340.6. On appeal, Augusta contends (1) defendants did not make a prima facie showing of entitlement to summary judgment on causation; (2) there are triable issues of material fact as to causation; and (3) there are triable issues of fact as to whether the one-year statute of limitations was tolled by defendants' continuous representation.
We agree defendants' evidence, including Augusta's response to a special interrogatory asking him to state all facts concerning his claim that the settlement in the underlying legal malpractice case was greatly reduced, did not meet its threshold summary judgment burden to demonstrate Augusta does not possess, and cannot reasonably obtain, evidence as to causation and damages. We further conclude Augusta's evidence raises a triable issue of material fact as to tolling under section 340.6, subdivision (a)(2), precluding summary judgment. Accordingly, we reverse.
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