Kabbe v. Miller

226 Cal. App. 3d 93, 275 Cal. Rptr. 893, 90 Daily Journal DAR 13964, 90 Cal. Daily Op. Serv. 8984, 1990 Cal. App. LEXIS 1286

• Court: California Court of Appeal
• Decided: December 10, 1990
• Docket: B045302
• Status: Published

Opinions

Opinion

JOHNSON, J.

Plaintiff filed this malpractice action against her former attorney, Melvin W. Miller, on December 30, 1987. Miller successfully moved for summary judgment on the ground the suit was barred by the one-year statute of limitations. (Code Civ. Proc., § 340.6.)¹ Plaintiff filed a timely notice of appeal.

Facts and Proceedings Below

This is a legal malpractice action arising out of defendant’s representation of plaintiff in a dissolution proceeding. The complaint accuses defendant of failing to introduce relevant evidence in the proceeding and various other wrongs. The trial court granted defendant’s motion for summary judgment on the ground plaintiff’s complaint was barred by the statute of limitations. We have reviewed the parties’ moving papers and find the summary judgment was correct on the statute of limitations ground as well as on the merits of plaintiff’s claims. The uncontradicted evidence in support of defendant is outlined below.

Discussion

I. The Uncontradicted Evidence Submitted to the Trial Court Supported the Summary Judgment.

Ms. Kabbe’s principal complaint against Mr. Miller is that he failed to introduce evidence which would have resulted in a more favorable outcome in her dissolution proceedings. Contrary to Ms. Kabbe’s assertions, the undisputed evidence shows most of this evidence was, in fact, introduced in the dissolution proceedings. We refer specifically to the W-3 form showing husband’s earnings; records from Loeb Richards brokerage firm showing stock purchased by husband; evidence showing ownership of a condominium in Flawaii; and evidence of husband’s life insurance policies.

Ms. Kabbe alleges Mr. Miller failed to introduce records of joint checking accounts which would have shown the standard of living of the parties. Ms. Kabbe claims she first learned Mr. Miller had possession of these records in January 1987. However, the existence of records of a joint checking account and Mr. Miller’s failure to introduce them must have been known to Ms. Kabbe at the time of the dissolution proceedings in 1984. Ms. Kabbe could have discovered the whereabouts of these records through the use of reasonable diligence within a year of the judgment in the dissolution action. Thus, this claim is barred by the statute of limitations.

The statute of limitations also bars Ms. Kabbe’s claims relating to Mr. Miller’s handling of the proceeds of her personal injury action and a trust deed. The personal injury action was settled and the proceeds distributed prior to the judgment in the dissolution action in 1984. Furthermore, the record shows Ms. Kabbe complained to the State Bar in October or November of 1986 regarding Mr. Miller’s handling of the personal injury proceeds. She complained at the same time of Mr. Miller’s handling of the trust deed. Therefore, it is clear she discovered the alleged misconduct more than a year before filing suit.

Next, Ms. Kabbe alleges she did not discover until January 1987 that Mr. Miller had in his possession “transcripts” containing information about the husband’s business dealings, and interrogatories from the husband’s law firm, and that Mr. Miller had forged subpoenas in the divorce action. Ms. Kabbe does not explain how these items relate to the injury she allegedly suffered. Therefore, even accepting her allegations about the date of discovery, there is no triable issue of fact raised as to defendant’s malpractice.

Finally, Ms. Kabbe alleges Mr. Miller failed to provide her with records of certain stock transactions in time to file a suit against the brokerage firm that handled the transactions. The evidence shows Mr. Miller supplied the records before the statute of limitations expired on a suit against the brokerage firm. Furthermore, we see no reason why failure to possess these records prevented Ms. Kabbe from filing a lawsuit.

Ms. Kabbe argues on appeal she did not suffer actual harm from Mr. Miller’s malpractice until she received her file from him in January 1987. Citing our decision in Robinson v. McGinn (1987) 195 Cal.App.3d 66, 72-73 [240 Cal.Rptr. 423], she argues the one-year statute of limitations should run from the time she received the file. But it is clear from her complaint the harm Ms. Kabbe suffered, if any, occurred at the time of the judgment of dissolution or before. Indeed, in her reply brief Ms. Kabbe states:

“Because of the outrageous conduct of Respondent’s failure to produce the files and records at trial. (Sic.) The outrageous conduct of Respondent caused Appellant to receive a mere $200 per month in child support; emotional distress caused by Respondent’s outrageous conduct; further financail [s/c] ruin.” Robinson is inapplicable to the facts of this case.

II. Sanctions for a Frivolous Appeal Are Not Appropriate in This Action.

Respondent’s brief requests sanctions against Ms. Kabbe in the amount of $3,000 for bringing an appeal which “indisputably has no merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650 [183 Cal.Rptr. 508, 646 P.2d 179].) In Flaherty, our Supreme Court instructed “[Ain appeal should be held to be frivolous only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit.” (Ibid.)

We recognize a litigant appearing in propria persona is generally held to the same restrictive rules and procedures as an attorney. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639 [178 Cal.Rptr. 167].) However, we have found no case imposing sanctions on a propria persona appellant solely on the ground the appeal lacked merit. In each case the court has found some impropriety in addition to lack of merit to support the imposition of sanctions. In some cases the court found the appeal was brought for the purposes of delay. (See, e.g., In re Marriage of Stich (1985) 169 Cal.App.3d 64, 75 [214 Cal.Rptr. 919]; Weber v. Willard (1989) 207 Cal.App.3d 1006, 1010 [255 Cal.Rptr. 165].) Because Ms. Kabbe is the plaintiff in this action, delay is not a factor here. In Sui v. Landi (1985) 163 Cal.App.3d 383, 385-386 [209 Cal.Rptr. 449] and Weber v. Willard, supra, 207 Cal.App.3d at page 1010, the court found the appeal was brought in order to harass the respondent. We find no evidence of a vexatious motive in this case and none is alleged by respondent. In both Sui v. Land and Weber v. Willard the court noted the propria persona litigants, although not attorneys, were experienced litigators. We do not believe it is appropriate to hold a propria persona appellant to the standard of what a “reasonable attorney” should know is frivolous unless and until that appellant becomes a persistent litigant.

Disposition

The judgment is affirmed. Respondent’s request for sanctions is denied.

Woods (Fred), J., concurred in the judgment.

1 Section 340.6, subdivision (a) provides:

“An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first.”