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Laclette v. Galindo

May 17, 2010

AMARILLYS LACLETTE, JR., PLAINTIFF AND APPELLANT,
v.
ALEXIS GALINDO ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from a judgment of the Superior Court of Los Angeles County, Alan S. Rosenfield, Judge. Reversed. (Los Angeles County Super. Ct. No. BC366179).

The opinion of the court was delivered by: Klein, P. J.

CERTIFIED FOR PUBLICATION

Plaintiff and appellant Amarillys Laclette, Jr. (Laclette) appeals a judgment following a grant of summary judgment in favor of defendants and respondents Alexis Galindo (Galindo) and Curd, Galindo and Smith (the Galindo firm) (sometimes collectively referred to as Galindo) in an action for legal malpractice.

The essential issue presented is whether Laclette's action is barred by the one-year statute of limitations, or whether the statute of limitations was tolled by Galindo's continuing representation of Laclette. (Code Civ. Proc., § 340.6, subd. (a)(2).)*fn1

We conclude a triable issue of material fact exists as to whether Galindo continued to represent Laclette during the pendency of a settlement agreement in the underlying action, so as to toll the limitations period in the malpractice action. Irrespective of the lack of contact between Galindo and Laclette over a two-year period, the evidence established the following: the trial court retained jurisdiction over the underlying settlement; the settlement obligated Laclette to pay the sum of $175,000 at the rate of $3,500 per month; Laclette was paying the installments as agreed; and Galindo remained Laclette's counsel of record.

Given these circumstances, we cannot say as a matter of law that Laclette could not reasonably expect Galindo to represent her in the event of issues arising concerning the performance of the settlement. We reject Galindo's theory that the two-year hiatus, when no legal services were required of Galindo with respect to the settlement agreement, had the effect of implicitly terminating Galindo's representation of Laclette.

Accordingly, the judgment is reversed.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Underlying Action

Laclette was employed by Elite Properties dba First Class Realty (Elite). Laclette was Natalie Ramirez's (Ramirez) real estate agent in the purchase of certain real property located on Strickland Avenue in Los Angeles. Laclette's mother, Amaryllis Laclette, Sr., assisted Laclette in the transaction.

In the underlying action, Ramirez sued the Laclettes and Elite for breach of contract and fraud, contending they assured her there were no significant problems with the property and that she did not need an inspection, causing Ramirez to forego an inspection of the property as a condition of purchase.

Galindo and the Galindo firm defended the Laclettes and Elite in the underlying action.

The underlying action originally was set for trial on February 18, 2004. On the date set for trial, the parties agreed to settle the matter (the initial settlement) on the following terms: $35,000 was to be paid equally by Laclette and Elite; an additional $15,000 would be paid equally by Laclette and Elite one year later; and the property would be advertised for sale at $450,000 with Elite waiving its commission on the listing and sale. Thus, under the initial settlement, Laclette would have paid Ramirez the total sum of $25,000.

The initial settlement subsequently was set aside by the trial court on various grounds, including the determination of a court appointed appraiser that the property could not be sold for $450,000 and was only worth $365,000. The underlying action was then reset for trial.

Trial of the underlying action commenced on January 5, 2005, resulting in a jury verdict which found Laclette, while in the course and scope of her employment with Elite, breached her fiduciary duty to Ramirez and that her actions constituted fraud. The jury awarded Ramirez $275,000 in compensatory damages.

Prior to proceeding with the punitive damages phase of the trial, the parties reached a settlement on January 25, 2005, in the total amount of $350,000, under which Elite would pay one-half and Laclette would pay one-half (the final settlement). As part of the final settlement, Laclette ...


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