Altwiji v. Behjatnia 4/12/10 CA2/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B209914

Case Date: 07/19/2010

Preview:Filed 4/12/10 Altwiji v. Behjatnia CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

ABBOTT ALTWIJI, Plaintiff and Appellant, v. RUSSELL R. BEHJATNIA et al., Defendants and Respondents.

B209914 (Los Angeles County Super. Ct. No. LC078980)

APPEAL from an order of the Superior Court of Los Angeles County, Richard B. Wolf, Judge. Affirmed. Abbott Altwiji, in pro. per. Law Offices of Afzali & Behjatnia and Russell F. Behjatnia for Defendants and Respondents.

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Plaintiff Abbott Altwiji (plaintiff) appeals from an order of dismissal granted in favor of defendants Russell F. Behjatnia and the Law Offices of Afzali and Behjatnia (defendant). The order was granted after the trial court sustained without leave to amend, on statute of limitations grounds, defendants demurrer to plaintiffs second amended complaint. The case is based on a medical malpractice suit (the underlying action) which plaintiff lost. Initially defendant represented plaintiff in the underlying action but then, according to plaintiffs allegations in the instant suit, defendant tricked plaintiff into substituting defendant out of that case and representing himself. Plaintiff alleges a cause of action against defendant for attorney malpractice, which has a one-year statute of limitations. However, we find that the essential claims asserted by plaintiff in this case are really claims of actual fraud, which has a three-year statute of limitations. Nevertheless, plaintiff did not file this suit within three years of losing the underlying action, and the statute of limitations for fraud does not provide grounds for tolling that limitation period. Therefore, we will affirm the order of dismissal. BACKGROUND OF THE CASE 1. The Original and First Amended Complaints

Plaintiff filed this suit on August 31, 2007. The original complaint alleges a cause of action against defendant for attorney malpractice. Defendant demurred on statute of limitations grounds and also filed a motion to strike. Those responses were placed off calendar when plaintiff filed a first amended complaint. Defendant demurred to the first amended complaint and also moved to strike portions of it. The demurrer 2

was sustained and plaintiff was again given leave to amend. The motion to strike was deemed moot and placed off calendar. Plaintiff filed a second amended complaint. 2. Allegations in the Operative Complaint

The second amended complaint (complaint) alleges all of the matters set out in this portion of our opinion. Plaintiff retained the defendant to represent him in a medical malpractice suit against UCLA and a doctor. Plaintiff and defendant entered into a written retainer agreement on June 13, 2003, with defendant telling plaintiff he had a meritorious medical malpractice case. Defendant thereafter refused to give plaintiff a copy of the retainer agreement. Because of their agreement, defendant was under a duty to take the measures necessary to protect plaintiffs rights. The agreement called for plaintiff to deposit $2,500 with defendant and plaintiff paid $2,000 on the date the agreement was signed and paid the remaining $500 in July 2003. The retainer was to pay for defendants deposition, mediation, exhibits and expert witness expenses. Defendant understood that plaintiff had no money to pay for his representation until trial, and defendant agreed to accept the hourly rate of $100 until completion of trial. Plaintiff performed as agreed. On August 28, 2003, after mediation, defendant requested $25,000 from plaintiff to "continue into trial." That was contrary to defendants agreement to charge plaintiff $100 per hour. This request by defendant was defendants tactic to gain a release from the retainer agreement with plaintiff because defendant knew plaintiff did not have the funds to make such a payment. Plaintiff requested that defendant perform his duties to plaintiff and defendant countered that if plaintiff would sign a substitution of attorney 3

form and agree to represent himself, defendant would continue to help plaintiff with the case by overseeing it, including trial, and that arrangement would reduce plaintiffs legal costs. When defendant made the representation to plaintiff that he would oversee the case he did so (1) after having represented to plaintiff, when plaintiff hired him, that he would protect plaintiffs interests in the underlying action, and (2) while he was still plaintiffs attorney of record. Defendant made the representation without any reasonable grounds for believing it was true. Defendant never intended to act in good faith and deal with plaintiff in a fair manner. Plaintiff was not aware that the representation was false. Plaintiff reasonably relied on it because defendant had promised to protect plaintiffs interest in the underlying suit. It was foreseeable to defendant that plaintiff would rely on it. Based upon defendants promise of future help with the underlying suit, plaintiff executed the substitution of attorney. Plaintiff believed, "and continued to believe that Defendant was be [sic] the attorney overseeing the case and advise Plaintiff at all times as to the pre-trial litigation process for the underlying case including trial." However, defendant failed to help plaintiff with the underlying case. Had plaintiff known that the representations of help were false he would not have agreed to act as his own attorney but would have remained defendants client until new representation could be found. The following occurred as a result of defendants failure to honor the terms of "the agreement." Defendant charged plaintiff an hourly rate of $250 instead of $100; defendant failed to take the deposition of the defendant in the underlying action; plaintiff was not able to timely designate an expert witness for his case because 4

defendant failed to advise him that an expert witness was required and that there was a statutory time limit for designation of a witness; defendant failed to advise plaintiff that motions filed by the defendant in the underlying action required timely filing of opposition; defendant failed to advise plaintiff regarding procedures in trial preparation; plaintiff was not prepared for trial; and ultimately plaintiff lost the underlying action "due to technical deficiencies and due to plaintiffs failure to follow statutory procedures, including being precluded from introducing medical records "and related issues." Plaintiff lost the underlying suit on March 23, 2004, and "[s]oon after" he filed an appeal. On March 5, 2005, plaintiff telephoned the State Bar of California to report defendants "wrongful conduct and misrepresentations." On March 24, 2005, the State Bar informed plaintiff that defendant may have committed malpractice, and it was not until then that plaintiff "had knowledge and discovered that a malpractice may have existed." Although this suit was not filed until August 31, 2007, the one-year statute of limitations for filing suits for attorney malpractice (Code Civ. Proc.,

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