The opinion of the court was delivered by: M. James LorenzUnited States District Court Judge
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [DOC. 10]
On August 3, 2011, Plaintiff Mafalda Casas-Cordero commenced this tort action against her former attorney, Defendant Frank Salz. Plaintiff alleges a cause of action for negligence / legal malpractice against Defendant. Defendant now moves for summary judgment, or in the alternative, partial summary judgment on the ground that Plaintiff's claim is barred by a one-year statute of limitations. Plaintiff opposes.
The Court found this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). (Doc. 23.) For the following reasons, the Court GRANTS Defendant's motion for summary judgment. (Doc. 10.)
In December 2004, Plaintiff sought the legal services of Defendant, when she sought to move with her minor daughter to Chile. (Salz Decl. ¶ 3.) Defendant advised Plaintiff against the move unless and until the custody order that was in place had been modified. (Id.) Against that advice, Plaintiff moved to Chile shortly thereafter. (Id.) Given the course of events, Defendant refunded the remainder of her retainer, and claims to have ended the representation.
Plaintiff's decision to move with her daughter to Chile gave rise to two subsequent lawsuits, a child-custody case ("Family Case") and a tort case ("Civil Case"). (Salz Decl. ¶¶ 4--5.) In the Family Case, Plaintiff's ex-husband, who is also the daughter's father, obtained custody of the daughter who was taken to Chile. (Id. ¶ 4.) That action began in early 2005 and ended, according to Defendant, in October 2008 at the latest. (Id.) In the Civil Case, the ex-husband obtained a money judgment for the removal of the daughter from the United States. ¶ 5.) According to Defendant, that action began in October 2006 and ended in January 2008. (Id.)
On August 12, 2008, Plaintiff sent an email to Defendant and her appellate attorney to express dissatisfaction with their performances. (Salz Decl. Ex. H.) In that email, she alleged deception and general lack of diligence. (See id.) Plaintiff also wrote:
I write now to let both of you know that I have had enough patience in waiting for your answer and information on how things stand. I would also like to confirm to both of you that Mr. Salz has ceased to be my attorney as of January 2008, and therefore he is not authorized to represent me nor to act on my behalf. ) And she informed Defendant that she was able to arrange a custody agreement with her ex-husband while representing herself. (Id.)
On March 17, 2010, Plaintiff emailed Defendant, requesting her case file. (Salz Decl. Ex. I.) Defendant offered to make arrangements for her to copy the file, but Plaintiff did not respond to the offer. (Salz Decl. ¶ 11.)
In May 2010, Plaintiff telephoned Defendant to once again express disappointment with his performance. (Salz Decl. ¶ 12.) Following a conversation that Defendant had with a mutual contact named Rudy Gammarino, Plaintiff sent Defendant an email on May 6, 2010. (Salz Decl. Ex. J.) In the email, Plaintiff expressed dissatisfaction with Defendant contacting Mr. Gammarino. (Id.) She also alleged that Defendant abused her vulnerability and neglected her. ) Plaintiff added, "if [Defendant] have any interest to talk about and settle this matter [Defendant] have to talk with [her] not with Rudy." (Id.) The matter that she referred to is Defendant's "malpractice concern" that he discussed with Mr. Gammarino. (Id.)
Despite all that had occurred, Plaintiff, then living in Arkansas, once again contacted Defendant to represent her in her custody battle. (Salz Decl. ¶ 13.) She and her ex-husband were living in Arkansas, and he had recently moved to California with their daughter. (Id.) As a result, Plaintiff sought assistance in obtaining a new or different custody arrangement. (Id.) In December 2010, Defendant informed Plaintiff that he would not represent her. (Id.) At around the same time, Defendant filed a notice of withdrawal from the Family Case because he "was worried that [he] could be served with papers intended for [Plaintiff] because [he] had never filed a formal withdrawal." (Id.) According to Defendant, he had no intention of performing work or accepting service on her behalf because he was no longer her attorney. (Id.)
On August 3, 2011, Plaintiff commenced this action, asserting a single
cause of action for "negligence / legal malpractice."*fn1
Defendant now moves for summary judgment. Plaintiff
Summary judgment is appropriate under Rule 56(c) where the moving party demonstrates the absence of a genuine issue of material fact and ...