JACQUELINE MITCHELL v. DAMON LAMONT HOBDY (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Jacqueline M. Mitchell filed a malpractice lawsuit against her former attorney, Damon L. Hobdy.   She appeals from the trial court's denial of her request for continuance and the court's grant of summary judgment in Hobdy's favor.   We affirm.

BACKGROUND

On June 24, 2008, Mitchell filed a complaint against Hobdy alleging negligence, breach of contract, breach of fiduciary duty, fraud and deceit, and unfair business practices in violation of Business and Professional Code sections 17200 and 17500 et seq.   Hobdy filed a demurrer on December 4, 2008.   After a hearing on January 21, 2009, the trial court sustained the demurrer with leave to amend on three causes of action, and overruled the demurrer on Mitchell's causes of action for fraud and unfair business practices.

Mitchell filed a first amended complaint on January 30, 2009, alleging the following facts.   Mitchell and Hobdy entered into an attorney-client retainer agreement on October 26, 2006, under which Hobdy was to represent Mitchell in a medical malpractice lawsuit against Kaiser Permanente Hospital (Kaiser) related to Mitchell's knee replacement operation.   Mitchell paid $12,500 to Hobdy on October 24, 2006.   Hobdy filed a demand for arbitration on February 19, 2007.   Arbitration began.   Hobdy did not make any effort to retain, and did not retain, a medical expert to support Mitchell's allegations.   On October 2, 2007, Kaiser filed a motion for summary judgment.¹  Hobdy's motion to withdraw as Mitchell's attorney was granted on December 4, 2007, three days before Mitchell's response to the summary judgment motion was due.   The arbitrator granted an extension allowing Mitchell until January 15, 2008 to file her response, but Mitchell was unable to find new counsel in time to hire an expert or file an opposition.   Mitchell therefore filed a voluntary dismissal,² instead of obtaining a judgment of $200,000.   Hobdy's actions constituted legal malpractice, breached the retainer agreement, breached his fiduciary duty to Mitchell, and constituted fraud and deceit.   The retainer agreement violated Business and Professions Code sections 17200 and 17500 (the Unfair Competition Law, or UCL), because it did not comply with Business and Professions Code section 6148, as it did not set forth the basis of compensation or Hobdy's responsibilities.   Hobdy did not provide Mitchell with bills or statements, and to the extent that it was a contingency agreement, the retainer agreement did not comply with Business and Professions Code section 6147.   Further, Hobdy did not communicate with Mitchell or apprise her of the status of her case.   The complaint requested damages of $250,000 (the amount Mitchell would have recovered in her action against Kaiser),³ general damages, punitive damages, restitution of $12,500, and injunctive relief.

Hobdy filed a demurrer to the first amended complaint on February 27, 2009.   Mitchell's counsel failed to appear at a case management conference on March 4, 2009, at which the trial court set a date for jury trial of September 22, 2009, ordered the parties to mediation, and ruled that no amendments could be filed without an order of the court.   On March 18, 2009, Mitchell attempted to file a second amended complaint in lieu of opposing Hobdy's demurrer.   Hobdy objected that Mitchell had not obtained the required court order.   At a hearing on April 16, 2009, the trial court overruled the demurrer on the claims for legal malpractice, breach of contract, fraud, and violation of the Business and Professions Code. The court sustained the demurrer to the claim for breach of fiduciary duty.   Hobdy filed an answer to the first amended complaint on May 8, 2009.

On June 23, 2009, Hobdy filed a motion for summary judgment, supported by his declaration and a declaration from the arbitrator.   Hobdy also filed a separate statement of undisputed material facts and supporting evidence.   Mitchell's opposition to Hobdy's motion for summary judgment was due August 20, 2009.

On August 5, 2009, Mitchell filed an ex parte application requesting a 120–day continuance of the hearing on the summary judgment motion, the trial date, and the discovery cut-off date, pursuant to Code of Civil Procedure section 437c, subdivision (h).⁴  An attached declaration from her attorney stated that the continuance was necessary to allow Mitchell to conduct discovery (depositions of Mitchell's doctor, Kaiser's attorney and expert witnesses, and “possibly attorney Benjamin Fogel.”).   Hobdy filed an opposition, pointing out that Mitchell first served a written discovery request on July 28, 2009, more than one year after filing the action and after Hobdy had served and filed his motion for summary judgment, and the responses to Mitchell's discovery were due after the discovery cutoff date of August 23, 2009.   On May 15, 2009, Mitchell had noticed Hobdy's deposition, then amended the deposition notice three times without any request from Hobdy, ending with a date of July 28, 2009, when Hobdy had a trial scheduled and was not available;  Hobdy suggested two dates in August 2009, but Mitchell's counsel claimed he was not available.   Hobdy argued, “Plaintiff waited until the 9th hour to do discovery when faced with Hobdy's motion [for summary judgment] (boldface omitted),” and urged the court to deny the request for a continuance.

The court denied Mitchell's application for a continuance without prejudice on August 5, 2009, setting a further status conference for August 25, 2009.⁵  On August 18, 2009, Mitchell filed an “Objection and Application to Continue Defendant's Motion for Summary Judgment or in the Alternative to Deny Defendant's Motion,” with another declaration from her attorney.

At the hearing on August 25, 2009, the court asked why Mitchell had not commenced discovery sooner, given that Hobdy first appeared in August 2008.   Mitchell's attorney stated that Hobdy's deposition was scheduled for the end of the week, and pointed out that it was now too late for him to file an opposition to the summary judgment motion.   The court stated that counsel's declaration did not state “what you need, why you need it and how it's material to your opposition.  [¶] ․ [¶] You need more than this to get a continuance under 437c, counsel.”   When Mitchell's counsel explained who the individuals were that he wished to depose, the court rejoined that the declaration did not explain why the testimony was material, and “You knew all of this in August [2008], though, and you waited until July [2009] to set the first depositions.   That's inexcusable neglect, counsel.”   The court concluded:  “You have not made any showing to justify a continuance under 437c.   You haven't even filed an opposition.   I will permit you to prepare the appropriate declaration that's required under 437c to obtain a continuance.   If you demonstrate good cause for it, I'll entertain it and allow a continuation so you can complete only that specific narrowly drawn discovery that you justify being essential to oppose the motion for summary judgment.”   The declaration was due on August 28.

On August 27, 2009, Mitchell's attorney filed his third declaration in support of his request for a continuance.   The declaration stated that he had intended to commence discovery after Hobdy answered the first amended complaint, had waited until after the resolution of the second demurrer, and had then found it impossible to complete discovery in time to oppose the summary judgment motion.   He considered Hobdy's deposition the starting point, to determine what further depositions and discovery would be necessary, including deposing “some or all” of the following:  Mitchell's Kaiser physician “to establish Kaiser's negligence in the underlying case;” Kaiser's attorney to establish that Hobdy did not undertake any discovery or retain an expert, and abandoned Mitchell just before Kaiser's summary judgment motion was to be heard;  Kaiser's medical expert “to combat his opinions that Kaiser was not negligent;” and “[p]ossibly ․ Benjamin Fogel, an attorney that plaintiff consulted with after being abandoned by the defendant in the underlying action.”   Mitchell's attorney had thought Hobdy's deposition would be sufficient to allow him to oppose the summary judgment motion, but the deposition had to be rescheduled to August 27, 2009, after the discovery cutoff date.   He had propounded other discovery to Hobdy on July 28, 2009, “(responses to which will be approximately due upon reading of this declaration by the court).” ⁶  Assuming that some additional discovery would be necessary, Mitchell's attorney believed he could file an opposition to the summary judgment motion in 90 to 120 days.

Grant of summary judgment

At the summary judgment hearing on September 3, 2009, Mitchell's attorney stated that he had waited to avoid “a shotgun type of discovery,” that under the circumstances he had acted diligently, and that with “the simplest amount of discovery” he could successfully oppose the summary judgment motion.   The court rejoined that counsel “took the chance of not mounting any opposition whatsoever,” and “basically what's wrong with this case is that you'll never apparently be able to justify that the termination of the underlying medical malpractice was attributable to Mr. Hobdy.  [¶] The record shows that there was a reasonable period of time for [the] successive attorney to take remedial steps, and he didn't do so.   He dismissed the action instead.   That's the crux of the case.   That's why there is no case.”

In a written order, the trial court concluded that the undisputed facts could have been challenged by an opposing declaration from Mitchell and documents from Mitchell's file or the arbitration file;  no further discovery was necessary.  “The ultimate question is simple:  Did Hobdy's withdrawal from the arbitration while Kaiser's motion for summary judgment was pending irremediably prejudice Mitchell's right to oppose Kaiser's motion on the merits?”   The undisputed facts showed that Mitchell knew Hobdy desired to withdraw by no later than October 23, 2007.   While Mitchell likely already knew of Kaiser's motion for summary judgment by that date, she certainly knew of it by November 27, 2007, when she requested a 90–day postponement of the summary judgment hearing and stated that she was seeking new counsel.   When Mitchell's new attorney formally appeared on January 18, 2008, he had a full 30 days to file an opposition to the summary judgment motion, and Mitchell (as shown by her letter of January 15) was aware she would need to consult with a medical expert.   Nevertheless, her new attorney did not submit an opposition and did not request additional time to prepare an opposition.   The record contained nothing suggesting that the arbitrator would have denied a continuance, and Mitchell had submitted nothing to show otherwise.

The court concluded that nothing Hobdy did prevented Mitchell's new attorney from pursuing a consultation with an expert, requesting additional time from the arbitrator, or drafting, serving and filing an opposition.  “Nothing Hobdy did, or failed to do, required attorney Fogel to file a voluntary dismissal of the arbitration.  [¶] Thus, even if Hobdy's rendition of professional services from October 200[6] until December 4, 2007 was below the standard of care, and even if he never intended to continue to represent Mitchell ‘until the finality of the case at the trial court level,’ and even if this negligence, breach of contract, and fraud constitute predicate acts supporting a UCL cause of action, the simple fact is that none of that alleged misconduct caused the dismissal of Mitchell's arbitration case.   For this reason, Hobdy is entitled to summary judgment upon all the remaining causes of action stated in Mitchell's complaint.”

Denial of motion to continue hearing on motion for summary judgment

The court characterized as “equivocal” and “ambiguous” Mitchell's attorney's recitation in his declaration of what discovery was necessary and why it was material and for good cause.   It was insufficient to state that the discovery “is anticipated to produce the specific facts relating to the manner in which [Hobdy] represented [Mitchell] in her underlying medical malpractice action,” including facts regarding medical opinions, sequence of events, the relationship between Hobdy and Mitchell, and the reasons for Hobdy's acts or omissions.   Hobdy's motion, supported by his declaration, the declaration of the arbitrator, and the record in the arbitration action, presented no purported undisputed facts or legal issues regarding medical opinions.   As to the attorney-client relationship between Mitchell and Hobdy and the sequence of events, Mitchell could have presented a declaration on her own knowledge, and could have submitted documents from the file to dispute Hobdy's narration of the events in the underlying case, without any further discovery.   The court denied the motion to continue the hearing pursuant to section 437c, subdivision (h).

Mitchell timely appealed from the judgment filed September 28, 2009.⁷

DISCUSSION

I. The trial court was not required to grant a continuance and did not abuse its discretion.

“A plaintiff generally cannot defeat a well-founded summary judgment motion without setting forth specific facts controverting the motion.  [Citation.]  An exception is made for an opposing party who has not had an opportunity to marshal the evidence, and a summary judgment motion will be denied or continued if the opposing party declares that ‘facts essential to justify opposition may exist but cannot, for reasons stated, then be presented.’ (§ 437c, subd. (h).)  Upon such a declaration, the trial court's discretion is strictly limited and a continuance may be mandated.  [Citation.]”  (Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765, 770–771.)   A continuance under section 437c, subdivision (h) ⁸ “is for a particular purpose—production of opposition evidence.”  (Ibid.) When an opposing party makes a good faith showing by affidavit that additional time is necessary to obtain facts essential to justify opposition, the statute requires that the court grant a continuance, but “[c]ontinuance of a summary judgment hearing is not mandatory ․ when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h).  [Citations.]”  (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.)   When a continuance is not mandated because the affidavit does not meet the requirements of the statute, the court has discretion to determine whether the party requesting the continuance has established good cause for the court to grant it.  (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716.)

In this case, Mitchell offered a declaration by her counsel stating that he decided to postpone discovery in January 2009 when the court partially sustained the demurrer on the initial complaint.   He intended to begin discovery when Hobdy answered the first amended complaint, but Hobdy instead filed a demurrer on February 17, 2009.   At the March 4 case management conference (which counsel did not attend), the court set the matter for trial in September 2009 (“[t]here was no way for me to reasonably anticipate that the court would set a date so early in the litigation process”).   After the second demurrer was heard, Hobdy filed an answer in May 2009, and counsel noticed Hobdy's deposition as “the starting point of my discovery plan.”   Counsel anticipated taking three other depositions and “possibly” that of Fogel.   Counsel subsequently had to reschedule Hobdy's deposition, then Hobdy had a conflict with the subsequent date, and the final date was August 27, 2009, after the date of the status conference to discuss the continuance request and after the discovery cutoff date.   Hobdy did not attend the deposition.   While Hobdy's deposition “might” be sufficient to oppose the summary judgment motion, counsel might need additional discovery, which he believed he could complete in 90 to 100 days.   Mitchell's counsel blamed:  “[t]he time constraints involved with the lack of cooperation of the defendant.”

“A declaration in support of a request for continuance under section 437c, subdivision (h) must show:  ‘(1) the facts to be obtained are essential to opposing the motion;  (2) there is reason to believe such facts may exist;  and (3) the reasons why additional time is needed to obtain these facts.   [Citations.]’  [Citation.]”  (Cooksey v. Alexakis, supra, 123 Cal.App.4th at p. 254.)   Mitchell's counsel's declaration fails on all counts.

First, the declaration does not state what essential facts would be obtained by taking Hobdy's deposition.   The declaration also states that the deposition of Mitchell's treating physician was necessary to “help establish Kaiser's negligence in the underlying case,” and the deposition of Kaiser's medical expert in the underlying case was necessary “to combat his opinions that Kaiser was not negligent.”   At issue in this appeal, however, is not whether Kaiser was liable for medical malpractice in the underlying case, but whether Hobdy committed legal malpractice in his representation of Mitchell.   The declaration states that the deposition of Kaiser's attorney “would establish that [Hobdy] did not undertake any discovery or retain an expert in the underlying action, [and] his testimony would also substantiate the fact that [Hobdy] abandoned the plaintiff just before the Kaisers [sic] Summary Judgment Motion was to be heard.”   Mitchell had the entire case file from Hobdy, however, and as a result Mitchell already knew the chronology of the case and whether discovery was undertaken.   The declaration makes short shrift of a possibly highly relevant deposition, that of “Benjamin Fogel, an attorney that plaintiff consulted with after being abandoned by the defendant in the underlying action.”   Counsel did not specify any essential facts to be obtained by Fogel's deposition.   This is consistent with counsel's failure (as described below in our discussion of the grant of summary judgment) to acknowledge at any time in the trial court, or on this appeal, that Mitchell retained Fogel, and that Fogel substituted in as her counsel and filed the voluntary dismissal.  “The statute makes it a condition that the party moving for a continuance show ‘facts essential to justify opposition may exist.’ ”  (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548.)   Without “a statement which suggests what facts might exist to support the opposition to the motion[ ],” the trial court acts within its discretion in finding the declaration insufficient to support granting a continuance.   (Id. at p. 549.)

Second, having failed to specify any essential facts counsel hoped to obtain by these depositions, the declaration necessarily does not provide any reason to believe such facts exist.

Third, the declaration provides no reason why additional time was required to obtain the depositions, except for conflicts that required rescheduling Hobdy's deposition to after the discovery cut-off date, and counsel's tactical decisions to delay initiating discovery.   He failed to explain why the discovery sought could not have been initiated, and therefore completed, sooner.  “[L]ack of diligence may be a ground for denying a request for a continuance of a summary judgment hearing․  There must be a justifiable reason why the essential facts cannot be presented.   An inappropriate delay in seeking to obtain the facts may not be a valid reason why the facts cannot then be presented.”  (Cooksey v. Alexakis, supra, 123 Cal.App.4th at p. 257.)   Counsel stated that although he knew he could have begun discovery after service of process, “I decided to withhold initiating discovery until the court finalized the framework of the plaintiff[']s lawsuit.”   This entailed waiting through two demurrers.   After the second demurrer was decided on April 16, 2009, Hobdy filed his answer on May 8, 2009.   A week later, counsel noticed Hobdy's deposition for July 16, 2009, planning to notice the other depositions later.   Counsel was called out for trial and rescheduled Hobdy's deposition for July 28, 2009, a date on which Hobdy had two preliminary hearings.   Because of counsel's and Hobdy's vacations, the deposition had to be scheduled for August 27, 2009.

Counsel took a risk by waiting to initiate discovery until May 2009, and his inability to complete it timely is due to a lack of diligence.   A desire to save a client money does not justify postponing all discovery until a dispositive motion has been filed and is scheduled for hearing.  (See Cooksey v. Alexakis, supra, 123 Cal.App.4th at p. 257.)   Mitchell's attorney could have served a deposition notice as early as 20 days after Hobdy was served.  (Code Civ. Pro., § 2025.210, subd. (b).)

In addition, while Mitchell's counsel emphasizes the expense of depositions as a reason for postponement, the declaration does not explain why he delayed until July 28, 2009 to propound any written discovery in the form of interrogatories and requests for admissions, responses to which were not due until after the discovery cutoff date.  “ ‘[T]here was no justification for the failure to have commenced the use of appropriate discovery tools at an earlier date.’  [Citation.]”  (Cooksey v. Alexakis, supra, 123 Cal.App.4th at pp.   255–256.)   The declaration states that the reason additional time is necessary is that scheduling conflicts arose in fixing a date for Hobdy's deposition.   These conflicts were due to the entirely predictable circumstances that both sole practioners had busy schedules and had planned summer vacations.   As we noted above, the declaration does not indicate what essential facts necessary for opposition to the summary judgment motion Mitchell would obtained by Hobdy's deposition, and the case record was already in Mitchell's possession.

The trial court was not required to grant the request for continuance as the requirements of section 437c, subdivision (h) were not met, and the trial court did not abuse its discretion in denying it.  (Futrell v. Payday California, Inc. (2010) 190 Cal.App.4th 1419, 1438 [denial of continuance will be upheld unless “court's decision was beyond the bounds of reason”].)

II. Summary judgment was proper.

Mitchell does not (and cannot, given that she filed no opposition) claim that any of the material facts (as set forth in Hobdy's separate statement, declarations, and supporting evidence) is disputed.   Mitchell argues that on its face, Hobdy's motion did not establish a prima facie showing entitling Hobdy to summary judgment.   We disagree.

“Because plaintiffs appealed from the trial court's order granting defendants summary judgment, we independently examine the record in order to determine whether triable issues of fact exist to reinstate the action.”  (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)   We view the evidence in the light most favorable to Mitchell, the losing party.  (Ibid.) Our independent review renders the trial court's reasoning irrelevant, and we may affirm on any ground supported by the record.  (Jimenez v. County of Los Angeles (2005) 130 Cal.App.4th 133, 140.)  “Because plaintiff did not controvert defendants' declarations in support of their motion for summary judgment, the trial court properly accepted them as true for purposes of the summary judgment motion. (§ 437c, subdivision (e).)”  (Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 417.)

We have independently reviewed the record, and, like the trial court, have distilled undisputed facts from the evidence (including declarations from Hobdy and the arbitrator) submitted with Hobdy's statement of undisputed facts, which the trial court characterized as “unwieldy” and “fraught with inadmissible argument, opinions and conclusions.”

In October 2006, Hobdy and Mitchell signed an agreement providing that Hobdy would represent Mitchell through trial in her lawsuit against Kaiser related to her knee replacement operation.   Hobdy commenced an arbitration on Mitchell's behalf, with the Hon. Margaret Grignon as the arbitrator.   Hobdy sent Mitchell the entire case file, including discovery documents, on September 5, 2007, and informed her that her deposition was scheduled for October 5, 2007.   On September 17, 2007, at an arbitration management conference, the arbitrator scheduled a mandatory settlement conference for December 21, 2007, and an arbitration hearing date for March 25 to 27, 2008.   In October 2007, Kaiser filed a motion for summary judgment set for hearing on December 21, 2007, supported by a declaration from a medical expert who had reviewed the medical records, opining that all the care and treatment Mitchell received was within the standard of medical practice.

On October 23, 2007, Hobdy faxed and then mailed Mitchell a letter requesting that she consent to his withdrawal as her attorney, but Mitchell did not respond.   On November 5, 2007, in a telephone conference with the arbitrator and Kaiser's attorney, Hobdy informed the arbitrator that he would be filing a motion to withdraw as Mitchell's counsel, and that the hearing on the motion for summary judgment was set for December 21, 2007.   The arbitrator informed Hobdy that she would set a hearing on the motion to withdraw for December 4, 2007.   The arbitrator told counsel that at the December 4 hearing (and depending on the ruling on the motion to withdraw) she would consider continuing Kaiser's motion for summary judgment to permit Mitchell and her new counsel adequate time to respond.

Hobdy filed a motion to withdraw, serving Mitchell on November 7, 2007.   The motion stated that Hobdy was seeking to withdraw because Mitchell's conduct had caused a breakdown in the attorney-client relationship, and Hobdy had received no response to his request that she consent to his withdrawal.

The arbitrator granted Hobdy's motion to withdraw at the hearing on December 4, 2007 (with Mitchell, Hobdy, and Kaiser's counsel participating), after receiving correspondence from Mitchell dated November 27, 2007, requesting a postponement of the summary judgment hearing to allow her to obtain new counsel.   At Hobdy's request, the arbitrator continued the hearing on the summary judgment motion to January 29, 2008, and continued the date that Mitchell's opposition was due to January 15, 2008 (and then to January 18, 2008, at a January 3, 2008 status conference).

In a letter dated January 15, 2008, Mitchell informed the arbitrator that a new attorney, Benjamin Fogel, was reviewing her file and scheduling an appointment for her with a medical expert.   The arbitrator informed her that if the new attorney submitted a substitution of attorney by January 18, 2008, the arbitrator would again continue the date to file an opposition to the summary judgment motion.   The substitution was submitted on January 18, and the arbitrator continued the due date of the opposition to February 18, 2008, setting the hearing for February 29, 2008.   On February 12, 2008, Mitchell's new attorney faxed the arbitrator a letter stating that Mitchell had decided to dismiss her case, and Fogel signed a request for dismissal of Mitchell's arbitration on February 29, 2008.

Hobdy had sent Mitchell the entire case file on September 5, 2007.   Neither side ever designated expert witnesses pursuant to Code of Civil Procedure section 2034.210.

“Generally, ‘[a] defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail.  [Citation.]’  [Citation.]   The defendant may carry this burden by showing ‘that the plaintiff cannot establish at least one element of the cause of action—for example, that the plaintiff cannot prove element X.’ (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.)   The defendant need not ‘conclusively negate’ the element;  all that is required is a showing ‘that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.’  (Id. at pp.   853–854.)”  (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1176.)   Because Mitchell filed no opposition to the summary judgment motion, we examine whether Hobdy met his initial burden of showing there is no triable issue of material fact as to one of the elements of Mitchell's malpractice action.  (See Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1228.)

Under California law, a plaintiff asserting an attorney malpractice claim must establish the following elements:  “ ‘(1) the attorney-client relationship or other basis for duty;  (2) a negligent act or omission;  (3) causation ;  and (4) damages.’  [Citation.]  Summary judgment is appropriate if the defendant negates any of these elements.  [Citation.]  [¶] Causation here means that but for the attorneys' negligence the client would have prevailed in the underlying action.  [Citation.]  Though normally a question of fact, causation may be decided as a question of law if the undisputed facts permit only one reasonable conclusion.  [Citation.]”  (Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1528;  see Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.)

Hobdy asked Mitchell to consent to his withdrawal in a letter dated October 23, 2007, and then filed a motion to withdraw.   At a hearing on December 4, 2007, the arbitrator granted Hobdy's motion to withdraw, and continued the hearing on the summary judgment motion to January 29, 2008.   Mitchell stated in a letter to the arbitrator on January 15, 2008 that new counsel, Benjamin Fogel, was reviewing her file and scheduling an appointment with a medical expert.   Fogel filed a substitution on January 18, 2008, and the arbitrator continued the due date of the opposition to February 18, 2008, and again continued the hearing to February 29, 2008.   Fogel did not file an opposition and did not request that the arbitrator continue the due date of the opposition.   On February 12, 2008, Fogel informed the arbitrator that Mitchell had decided to dismiss her lawsuit, and on February 29, 2008, Fogel signed a request for dismissal.   Neither Mitchell nor Kaiser ever designated expert trial witnesses pursuant to section 2034.210.

Mitchell did not oppose the summary judgment motion, and as a result the record on this appeal is devoid of any undisputed facts regarding the details of Fogel's representation or the reasons for the voluntary dismissal of Mitchell's underlying malpractice action.

After our independent review, we conclude that the undisputed facts show that Hobdy was not negligent in his representation of Mitchell.   In the underlying action against Kaiser, Hobdy and Mitchell signed an agreement in October 2006, providing that Hobdy would represent Mitchell through trial in her medical malpractice action against Kaiser.   Hobdy commenced arbitration, and a year later, in October 2007, Kaiser filed a motion for summary judgment, with a hearing date of December 21, 2007.   Faced with a breakdown in his relationship with Mitchell, who did not respond to his October 23, 2007 request that she consent to his withdrawal, Hobdy informed the arbitrator that he would file a motion to withdraw.   When the arbitrator set the hearing on the motion to withdraw on December 4, 2007, Hobdy reminded the arbitrator that the hearing on the motion for summary judgment was set for hearing on December 21, 2007, and the arbitrator informed both counsel that she would consider continuing the summary judgment motion to give Mitchell and new counsel adequate time to respond.   At the December 4, 2007 hearing, the arbitrator continued the hearing to January 29, 2008, with Mitchell's opposition due January 15, 2008 (later moved to January 18, 2008).   After Mitchell requested a further postponement and after Fogel filed a substitution of attorney, the arbitrator agreed to continue the due date of the opposition to February 18, 2008 and the hearing to February 29, 2008.   Fogel informed the arbitrator on February 12, 2008 that Mitchell had decided to dismiss the case, and Mitchell dismissed her claims with prejudice on February 29, 2008.   These facts do not show negligence by Hobdy.   After Mitchell did not consent to Hobdy's withdrawal, he filed a motion to withdraw, and at every subsequent stage requested and obtained continuances of the date for responding to Kaiser's summary judgment motion and of the hearing on the motion, which allowed Mitchell time to obtain the declaration of an expert to oppose Kaiser's expert declaration.  (See Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)   The arbitrator indicated no unwillingness to grant further continuances had Mitchell requested any.   Although represented by new counsel, Mitchell did not hire an expert or request more time to oppose the summary judgment motion, instead dismissing the case with no explanation.

This is not a case like Cline v. Watkins (1977) 66 Cal.App.3d 174, in which we considered upon an appeal (from a judgment of dismissal following the sustaining of a demurrer without leave to amend) “whether the substitution of new counsel who negligently fails to cure the results of negligence of prior counsel in representation of his client in pending litigation relieves the first attorney of liability.”  (Id. at p. 176.)   The amended complaint alleged that the negligent misrepresentation of both Cline's first and second attorneys resulted in her loss of Cline's community property share in her husband's pension.  (Id. at pp.   176–177.)   We agreed that the failure of Watkins, Cline's first attorney, to assert in the divorce complaint his client's community property interest in a pension “supports the factual inference that the attorney was negligent in the representation of his client's interest.  [Citation.]”  (Id. at p. 178.)   Nevertheless, “ ‘[a]n attorney's negligence need not be the sole cause of his client's loss in order to subject him to liability.   That is to say, where there is causation in fact it need not be the sole proximate cause.’  [Citation.]”  (Ibid.) The complaint alleged that both lawyers were negligent, and that Watkins' negligence caused damage to the plaintiff.  “We thus reach directly the issue of whether the negligence of [the second attorney] disclosed by the file in the dissolution action to have occurred after that of Watkins is a superseding cause which as a matter of law excuses the latter from liability.  [Citation.]”  (Ibid.) “An independent intervening act is a superseding cause relieving the actor of liability for his negligence only if the intervening act is highly unusual or extraordinary and hence not reasonably foreseeable.  [Citation.]  Reasonable foreseeability in this context is a question for the trier of fact.”  (Ibid.) A third person's failure to act to prevent harm to another threatened by the actor's negligent conduct is not a superseding cause of the harm, so that “the original negligent actor generally remains liable although a third person negligently fails to discharge a duty to take affirmative action which would have prevented the harm if the third person's conduct is reasonably foreseeable.”  (Id. at p. 179.)   Stating, “[A] negligent lawyer [should] not be relieved because he is replaced by another,” we concluded:  “[t]he issue of the proximate causation of damage flowing from Watkins' negligence is thus one of foreseeability to be determined by the trier of fact and not on demurrer.”  (Ibid.)

Unlike Cline v. Watkins, the undisputed facts in this case do not establish negligence by the first attorney, Hobdy.   Mitchell filed no opposition to the summary judgment motion in this case, and so she has not met the burden of production, shifted to her, to make a prima facie showing that negligence can be established.  (Avivi v. Centro Medico Urgente Medical Center, supra, 159 Cal.App.4th at p. 467.) ⁹

III. Mitchell is not entitled to restitution.

Mitchell also argues on appeal that the trial court erred in granting summary judgment on her cause of action for restitution of $12,500, because the retainer agreement she signed with Hobdy in the underlying action does not comply with Business and Professions Code sections 6147, which sets forth requirements for written contingency fee contracts, or 6148, which sets forth requirements for written attorney fee contracts not on a contingency basis.   Both sections, however, provide “[f]ailure to comply with any provision of this section renders the agreement voidable at the option of the client,” and further provide that upon the voiding of the agreement “the attorney shall ․ be entitled to collect a reasonable fee.”  (Bus. & Prof.Code, §§ 6147, subd. (b), 6148, subd. (c);  Flannery v. Prentice (2001) 26 Cal.4th 572, 589.)   Under the statutes, a retainer agreement not meeting the requirements is voidable, not void, and upon the client's election to void the contract, the attorney is entitled to the reasonable value of his services.  (Alderman v. Hamilton (1988) 205 Cal.App.3d 1033, 1038.)   The election to rescind the contract must be timely.  (See Neet v. Holmes (1944) 25 Cal.2d 447, 457.)   There is no evidence that in the underlying medical malpractice action Mitchell exercised her option to void the agreement.   Even if she had, Hobdy would have been entitled to the reasonable value of his services under the theory of quantum meruit.  (Spires v. American Bus Lines (1984) 158 Cal.App.3d 211, 216–217.)   Summary judgment was proper on Mitchell's restitution cause of action.

DISPOSITION

The judgment is affirmed.   Each party shall bear its own costs on appeal.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. Kaiser's motion for summary judgment was accompanied by a declaration by a medical expert stating that Mitchell's medical treatment was within the standard of care.   The motion argued that unless Mitchell submitted expert testimony to controvert the declaration, the motion for summary judgment must be granted..  FN1. Kaiser's motion for summary judgment was accompanied by a declaration by a medical expert stating that Mitchell's medical treatment was within the standard of care.   The motion argued that unless Mitchell submitted expert testimony to controvert the declaration, the motion for summary judgment must be granted.

FN2. The first amended complaint also states that as a result of Hobdy's negligent representation, Kaiser's summary judgment motion was granted..  FN2. The first amended complaint also states that as a result of Hobdy's negligent representation, Kaiser's summary judgment motion was granted.

FN3. The first amended complaint earlier states that the amount that Mitchell would have received in a judgment against Kaiser is in excess of $200,000..  FN3. The first amended complaint earlier states that the amount that Mitchell would have received in a judgment against Kaiser is in excess of $200,000.

FN4. Unless otherwise indicated, all subsequent statutory references are to the Code of Civil Procedure..  FN4. Unless otherwise indicated, all subsequent statutory references are to the Code of Civil Procedure.

FN5. The status conference date was after the August 20, 2009 due date for Mitchell's opposition to the summary judgment motion.   Both Mitchell's opening and reply briefs state that Mitchell's attorney “relayed this information to the judge, through the Clerk,” and the court did not change its ruling.   The record shows otherwise.   In his declaration, Mitchell's attorney stated that the court made the ruling from chambers, and although he advised the clerk that opposition to the summary judgment motion was due on August 20, five days before the further status conference, the clerk did not relay that message to the court..  FN5. The status conference date was after the August 20, 2009 due date for Mitchell's opposition to the summary judgment motion.   Both Mitchell's opening and reply briefs state that Mitchell's attorney “relayed this information to the judge, through the Clerk,” and the court did not change its ruling.   The record shows otherwise.   In his declaration, Mitchell's attorney stated that the court made the ruling from chambers, and although he advised the clerk that opposition to the summary judgment motion was due on August 20, five days before the further status conference, the clerk did not relay that message to the court.

FN6. The declaration does not state what discovery Mitchell propounded, but Hobdy's opposition to the request for continuance characterizes the discovery as interrogatories and request for admissions..  FN6. The declaration does not state what discovery Mitchell propounded, but Hobdy's opposition to the request for continuance characterizes the discovery as interrogatories and request for admissions.

FN7. Mitchell does not appeal from the trial court's order sustaining the demurrer to her claim for breach of fiduciary duty..  FN7. Mitchell does not appeal from the trial court's order sustaining the demurrer to her claim for breach of fiduciary duty.

FN8. Section 437c, subdivision (h) provides:  “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just.”.  FN8. Section 437c, subdivision (h) provides:  “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just.”

FN9. We are troubled that on this appeal, Mitchell's opening brief does not acknowledge that after Hobdy withdrew she hired another attorney, who filed a substitution of attorney 31 days before the opposition was due.   The brief simply states that counsel's declaration stated a continuance was necessary because, among other things, counsel “possibly” needed to depose “the attorney, Benjamin Fogel.”   In her reply brief, Mitchell cites to the first amended complaint, which alleges that between Hobdy's withdrawal and January 15, 2008, she was unable to retain new counsel, and “[a]s a direct consequence of not being able to retain new counsel ․, she filed a dismissal.”  (Italics added.)   It is disingenuous for Mitchell not to acknowledge in her appellate briefs that after Hobdy withdrew, she did hire new counsel who had a full 30 days to file an opposition to the summary judgment motion, and who did not request a continuance before filing a voluntary dismissal.   This omission is consistent with Mitchell's requests for a continuance of the hearing on the motion for summary judgment in this case, in which she stated that she might depose “attorney Benjamin Fogel” but never acknowledged that he had filed a substitution of attorney in the underlying action.   Nevertheless, on summary judgment the trial court had before it undisputed facts establishing that Mitchell did hire a new attorney, Fogel, who subsequently filed a dismissal..  FN9. We are troubled that on this appeal, Mitchell's opening brief does not acknowledge that after Hobdy withdrew she hired another attorney, who filed a substitution of attorney 31 days before the opposition was due.   The brief simply states that counsel's declaration stated a continuance was necessary because, among other things, counsel “possibly” needed to depose “the attorney, Benjamin Fogel.”   In her reply brief, Mitchell cites to the first amended complaint, which alleges that between Hobdy's withdrawal and January 15, 2008, she was unable to retain new counsel, and “[a]s a direct consequence of not being able to retain new counsel ․, she filed a dismissal.”  (Italics added.)   It is disingenuous for Mitchell not to acknowledge in her appellate briefs that after Hobdy withdrew, she did hire new counsel who had a full 30 days to file an opposition to the summary judgment motion, and who did not request a continuance before filing a voluntary dismissal.   This omission is consistent with Mitchell's requests for a continuance of the hearing on the motion for summary judgment in this case, in which she stated that she might depose “attorney Benjamin Fogel” but never acknowledged that he had filed a substitution of attorney in the underlying action.   Nevertheless, on summary judgment the trial court had before it undisputed facts establishing that Mitchell did hire a new attorney, Fogel, who subsequently filed a dismissal.

MALLANO, P. J. CHANEY, J.