Plaintiffs Margaret Miller (hereinafter Miller) and her adult children (Larry, Michael and Karen Miller) appeal from a summary judgment in favor of defendants Lewis Metzinger (hereinafter Metzinger) and Sepulveda & Metzinger, a professional corporation, in plaintiffs' suit for attorney malpractice.
A prior action for wrongful death (medical malpractice against two doctors and a hospital) brought by plaintiffs as heirs of Jack Miller was decided in favor of the defendants therein after a bifurcated trial of the defense of statute of limitations (Code Civ. Proc., § 340.5). Jack Miller died on January 4, 1973, and plaintiffs were found to be chargeable with knowledge of the cause of his death as of that date. The suit was not commenced until January 30, 1974.
The complaint in the case at bench charged four different attorneys or law firms with negligently failing to bring the wrongful death action within the applicable statute of limitations. It alleged that the first attorneys consulted (in early 1973) were Rudofsky & Meo, and that after they obtained copies of decedent's medical records they declined to handle the matter. However, the records were sent to the second attorney, Bernard Echt, who retained them until on or about December 28, 1973. The third firm, Sepulveda & Metzinger, allegedly became involved when plaintiffs consulted Metzinger on or about July 1, 1973, but this firm also withdrew. The allegations in this respect were: "On or about November 1, 1973, LEWIS METZINGER informed Plaintiffs that he did not have sufficient expertise to handle a medical malpractice cause of action and referred Plaintiffs to Defendants, CHEREN & GOLDBERG. On or about
Plaintiffs did not allege which defendant was in possession of the file on January 4, 1974, only that the complaint filed January 30, 1974, "after the statute of limitations had run" was filed by defendants Cheren & Goldberg.
Between the filing of the complaint and the summary judgment, discovery was undertaken, including depositions of Miller and of defendants Metzinger and Matthew Meo, and interrogatories were answered by plaintiffs.
Defendants Meo, Meo & Rudofsky, and Bernard Echt were voluntarily dismissed.
In June 1977, defendants Metzinger and Sepulveda & Metzinger filed a motion for summary judgment. This motion was heard August 29, 1977. Prior to the hearing, the original depositions of Matthew Meo and Metzinger with attached exhibits were completed and filed. The deposition testimony of plaintiff Miller was presented by the moving defendants through the declaration of Victor Sepulveda which stated that he took the deposition and that exhibit A attached to the declaration is a "transcript of the deposition."
In addition to the deposition testimony, the moving defendants submitted three declarations of Metzinger.
In opposition, plaintiffs relied upon the deposition testimony, upon the declaration of David H. Cheren, and upon the opposition declaration of Miller.
An additional undisputed fact of critical importance was that Metzinger sent a letter to Meo, dated December 27, 1973, which read as follows:
"Dear Mr. Meo:
"Pursuant to our conversation regarding the above-captioned matter I am writing you this letter to indicate to you that we are possibly interested in taking over this file.
Beyond those above recited, the facts were uncertain or there were conflicts. There was great uncertainty as to the dates when (1) Miller contacted Metzinger, and (2) Metzinger advised Miller of his inability to handle the case and referred her to Cheren & Goldberg. The unverified complaint alleged that the original consultation was on or about July 1, 1973, and that "[o]n or about November 1, 1973, LEWIS METZINGER informed Plaintiffs that he did not have sufficient expertise to handle a medical malpractice cause of action and referred Plaintiff to Defendants, CHEREN & GOLDBERG."
In her deposition, Miller testified that she saw Metzinger two or three times but could not remember the dates because she "was going through a very trying period at that time." She could not say whether it was more than six months or less than six months after her husband died. She was equally unable to date this event by reference to the succeeding contact with Cheren & Goldberg. She did testify that this contact was in 1973 and when asked if it was "before the month of December" said, "I am sure it must have been." However, when admonished not to guess, plaintiff stated, "I don't know," and in her declaration in opposition, Miller stated, "I do not know when these meetings or conversations occurred."
The deposition testimony of Meo also bore upon the dating of the contacts between Miller and Metzinger. He testified that the December 27, 1973, letter, as indicated by the statement therein that it was written "[p]ursuant to our conversation" was preceded by a phone conversation of like content, and that a handwritten notation on the original of the letter, "Called Echt 12-28-73, 2:30" was in his handwriting and reflected the fact that on that date he called Bernard Echt and asked for the records.
There was also considerable uncertainty as to the content of the discussions between Miller and Metzinger. In his deposition, Metzinger stated that he did not "remember any of the substance" of the conversations he had with Mrs. Miller and could not say whether he ever advised her that an action "should be filed on her behalf prior to one year from the day of her husband's death." When asked, "Did you ever agree to perform any work on Margaret Miller's children's behalf in connection with the medical-malpractice claim?" he answered, "I don't know." However, in his declaration, Metzinger stated that Miller asked him to investigate the case, that he had advised her that in order to do so it was necessary to examine the medical records and suggested he would obtain them from her present counsel, but "never indicated at this time that I would undertake this matter nor represent her." In the declaration Metzinger summarized: "At no time during any conversation or consultation period did I agree to represent Mrs. Miller in any regard to this claim.... My entire relationship to this action was of an investigatory nature."
The testimony of plaintiff Miller, however, concerning their conversation was as follows:
"A. Yes. At that time he said he didn't understand the hospital records. He said he was going to have Max read them, and then he never sent them to Max and he — Max is Dr. McElroy[
Another matter on which the record was unclear was whether Metzinger contacted Cheren & Goldberg in connection with the reference or merely sent Miller there. In his deposition, Metzinger said he did not "believe" that he contacted Cheren & Goldberg prior to referring Miller because it was "not my usual practice." Miller, however, testified in her deposition that she believed "he called up and made arrangements for me to make an appointment to go see him." In Miller's opposition declaration, she stated that Metzinger "made an appointment for me to see the law firm of Cheren & Goldberg."
On August 29, 1977, the motion for summary judgment was submitted upon the depositions and declarations, the memoranda of points and authorities, and oral argument. On that date the motion was granted, followed by the judgment entered November 9, 1977.
Plaintiffs contend that the motion for summary judgment was improperly granted inasmuch as there were issues of fact as to (1) the date upon which Metzinger informed plaintiff Miller that he would not represent her, (2) whether Metzinger advised plaintiffs as to the running of the statute of limitations, and (3) when plaintiffs established an attorney-client relationship with Cheren & Goldberg. Plaintiffs also contend that the declaration of Victor Sepulveda improperly incorporates the deposition testimony of plaintiff Miller. Defendants controvert all of plaintiffs' contentions.
There Is an Issue of Fact as to the Existence of the Attorney-Client Relationship
The deposition testimony of plaintiff Margaret Miller describes an agreement under which defendant Metzinger undertook to obtain medical records necessary to an evaluation of the wrongful death claim and to advise concerning appropriate action to be taken. Metzinger "would take care of it or have somebody take care of it that knew about trying malpractice suits." Metzinger's statements in his declaration that his function was purely investigatory and that he did not agree to represent her, charge any fee for his services or secure a retainer agreement do not suffice to eliminate the existence of an attorney-client relationship.
In People v. Singh (1932) 123 Cal.App. 365 [11 P.2d 73], communications made by a criminal defendant to an attorney were held privileged despite the fact that they failed to agree upon a fee arrangement.
In Westinghouse Elec. Corp. v. Kerr-McGee Corp. (7th Cir.1978) 580 F.2d 1311, 1319, the court said: "The fiduciary relationship existing between lawyer and client extends to preliminary consultation by a prospective client with a view to retention of the lawyer, although actual employment does not result. [Fn. omitted.]"
There Is an Issue of Fact as to the Time When Metzinger Referred Plaintiffs to Cheren & Goldberg
The allegations of the complaint do not forever set in concrete the date upon which defendant Metzinger advised plaintiffs of his inability to
It is, therefore, apparent that there is a serious issue of fact in the case as to whether Metzinger advised the plaintiffs to seek other representation at any time prior to a date when the one-year statute of limitations had run or was about to run within a matter of a few days.
There Is a Genuine Issue as to Whether There Was a Breach of Duty to Plaintiffs by Metzinger's Failure to Advise Concerning the Statute of Limitations
Plaintiff Miller's declaration and her deposition both indicate that she was never advised by Metzinger of the bar of the statute of limitations. He does not attempt to take issue with her in this respect. If, therefore, the correct dating of the conversation, which both of them agreed occurred prior to her seeking representation with Cheren & Goldberg, is subsequent to the December 27 date of Metzinger's letter to Meo, defendants have failed to negate the existence of a breach of duty.
According to the declaration of Miller, Metzinger made the appointment for her with Cheren & Goldberg. If that is true and if the appointment was not until late January, there was a breach of duty. It appears, therefore, that in order to prevail on this issue, defendants were required to conclusively negate Miller's testimony or show that the appointment was prior to January 4. They did neither.
Moreover, in view of Metzinger's apparent knowledge of the statute of limitations problem, a breach of duty to plaintiffs might exist even though he left it up to Miller to make the appointment. If, as her deposition and declaration indicate, she was given no advice as to the statute of limitations (when Metzinger declined the case on the basis of his lack of expertise, at a time when there remained only a few days within which to commence the action), there was a breach of duty.
The judgment is reversed and the cause is remanded to the trial court for further proceedings consistent with the views above expressed.
Cobey, Acting P.J., and Allport, J., concurred.