Eisenberg v. Hughes

1 F. App'x 752
CourtCourt of Appeals for the Ninth Circuit
DecidedJanuary 18, 2001
DocketNo. 99-16558
StatusPublished

This text of 1 F. App'x 752 (Eisenberg v. Hughes) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eisenberg v. Hughes, 1 F. App'x 752 (9th Cir. 2001).

Opinion

MEMORANDUM1

In this diversity action, Plaintiffs Ian Eisenberg (“Eisenberg”), International Audiotext Network, Inc. (“IAN”) and Vir-gincom bring claims for legal malpractice against Defendants John Hughes, James Moushegian and Gordon & Rees. The district court entered summary judgment against Plaintiffs, holding that (1) Virgin-com was never represented by Defendants, (2) IAN failed to file within the statute of limitations period, and (3) Eisenberg lacked standing. Plaintiffs appealed. As the parties are familiar with the facts, we do not recite them here.

DISCUSSION

I. Lack of Representation (Virgincom)

The district court held that Virgincom cannot, as a matter of law, assert a claim for legal malpractice against Defendants because the undisputed evidence establishes that Defendants never represented Virgincom. Plaintiffs do not challenge this holding on appeal. Accordingly, we affirm the district court’s grant of summary judgment against Plaintiff Virgincom on this basis.

II. Statute of Limitations (IAN)

Plaintiffs assert a variety of arguments to avoid application of California’s one-year statute of limitations to IAN’s malpractice claims.

A. Choice of Law

First, Plaintiffs argue that Washington’s three-year statute of limitations, not California’s one-year statute of limitations, applies to IAN’s legal malpractice claims. The instant case, however, is indistinguishable from Ashland Chem. Co. v. Provence, 129 Cal.App.3d 790, 181 Cal.Rptr. 340 (1982) and Nelson v. International Paint Co., 716 F.2d 640 (9th Cir. 1983) (applying California law). In Ash-land and Nelson, the courts held that the California statute of limitations applied because, as in the instant case, the suit was filed in a court in California and the defendant was a California resident. Accordingly, we conclude that California’s one-year statute of limitations for malpractice claims governs the instant action.

B. Actual Injury

Second, Plaintiffs argue that, even if California’s one-year statute of limitations applies, they satisfied its requirements by filing the instant suit within one year of suffering “actual injury .” Under California Code of Civil Procedure § 340.6, the statute of limitations is tolled during the time that the plaintiff has not suffered an actual injury. Plaintiffs, however, waived this argument by failing to raise it before the district court. See Slaven v. American Trading Tramp. Co., 146 F.3d 1066,1069 (9th Cir.1998).

Even if the argument had not been waived, however, it fails on the merits. Plaintiffs acknowledge that, to prevail on [755]*755their “actual injury” argument, they must demonstrate that, Jordache Enters., Inc. v. Brobeck, Phleger & Harrison, 18 Cal.4th 739, 76 Cal.Rptr.2d 749, 958 P.2d 1062 (1998), should not have retroactive effect. “The preliminary finding necessary to support a determination of nonretroactivity is that the decision must establish a new principle of law by overruling clear past precedent or by deciding an issue of first impression whose resolution was not clearly foreshadowed.” Casas v. Thompson, 42 Cal.3d 131, 228 Cal.Rptr. 33, 720 P.2d 921, 927 (Cal.1986).

Plaintiffs cannot satisfy this preliminary consideration. While the California Supreme Court in Jordache was the first explicitly to overrule ITT Small Bus. Fin. Carp. v. Niles, 9 Cal.4th 245, 36 Cal. Rptr.2d 552, 885 P.2d 965 (1994), the holding of ITT, upon which Plaintiffs allegedly relied, was flatly contradicted three years earlier in Adams v. Paul, 11 Cal.4th 583, 46 Cal.Rptr.2d 594, 904 P.2d 1205 (1995). Plaintiffs, therefore, cannot show that Jordache established “a new principle of law by overruling clear past precedent” or decided “an issue of first impression whose resolution was not clearly foreshadowed.” See Casas, 228 Cal.Rptr. 33, 720 P.2d at 927. As such, Plaintiffs’ retroactivity argument fails.

Accordingly, we hold that Plaintiffs failed to raise a triable issue that actual injury occurred within the limitations period.

C. Continuous Representation

Third, Plaintiffs argue that the statute of limitations was tolled during the period in which Defendants continued to represent them. Under California Code of Civil Procedure § 340.6(a)(2), the statute of limitations is tolled while “[t]he attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred .... ”

Any legal representation Defendants provided to Plaintiffs, however, was unambiguously terminated on March 5, 1996. On that date, Defendant Hughes sent a letter to Plaintiffs’ counsel which stated, in part, “In light of Ian’s threat to sue us, we can no longer provide any further legal services on his behalf.” Plaintiffs filed the instant action more than a year after receiving that letter. The minimal degree of uncompensated assistance Defendants subsequently provided to Plaintiffs, in connection with the opposition to Ruth Parasol’s summary judgment motion, is insufficient to raise a triable issue that Defendants continued to represent IAN. See Foxbor-ough v. Van Atta, 26 Cal.App.4th 217, 31 Cal.Rptr.2d 525 (1994).

Accordingly, we conclude that Defendants did not continue to represent Plaintiffs for purposes of tolling the statute of limitations.

D. Equitable Estoppel

Fourth, Plaintiffs argue that Defendants are equitably estopped to assert a statute of limitations defense against IAN because Defendants orally suggested that IAN was covered by the written tolling agreement. Equitable estoppel precludes a defendant from invoking the statute of limitations when the defendant engaged in some conduct, reasonably relied upon by the plaintiff, which induces the belated filing of the action. Shaffer v. Debbas, 17 Cal.App.4th 33, 21 Cal.Rptr.2d 110, 115 (1993). Defendants’ purported oral statements, however, contradict the subsequent written tolling agreement. As such, Plaintiffs’ reliance on these oral statements is unreasonable as a matter of law.

Accordingly, we conclude that Plaintiffs failed to raise a triable issue that equitable [756]*756estoppel precludes Defendants from invoking the statute of limitations against IAN. Therefore, we hold that California’s statute of limitations bars IAN’s claims against Defendants and we affirm the district court’s grant of summary judgment against IAN.

III. Standing (Eisenberg)

Defendants argue that, although Eisenberg is not barred by the statute of limitations, he lacks the requisite standing to bring the instant suit. Defendants contend that the injury resulting from Defendants’ alleged malpractice (i.e.,

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Related

United States v. Patricia Campbell Hearst
563 F.2d 1331 (Ninth Circuit, 1977)
Jones v. H. F. Ahmanson & Co.
460 P.2d 464 (California Supreme Court, 1969)
Adams v. Paul
904 P.2d 1205 (California Supreme Court, 1995)
Casas v. Thompson
720 P.2d 921 (California Supreme Court, 1986)
Jordache Enterprises, Inc. v. Brobeck
958 P.2d 1062 (California Supreme Court, 1998)
Ashland Chemical Co. v. Provence
129 Cal. App. 3d 790 (California Court of Appeal, 1982)
Foxborough v. Van Atta
26 Cal. App. 4th 217 (California Court of Appeal, 1994)
Shaffer v. Debbas
17 Cal. App. 4th 33 (California Court of Appeal, 1993)
ITT Small Business Finance Corp. v. Niles
885 P.2d 965 (California Supreme Court, 1994)

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Bluebook (online)
1 F. App'x 752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eisenberg-v-hughes-ca9-2001.