Chancellor v. Ozzello

ROBERT CHANCELLOR, Plaintiff and Appellant, v. MARK A. OZZELLO et al., Defendants and Respondents.

B292321

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

October 8, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BC653597)

APPEAL from a judgment of the Superior Court of Los Angeles County, William F. Fahey, Judge. Affirmed.

Robert Chancellor, in pro. per.; and Christopher E. Rolin for Plaintiff and Appellant. [Retained.]

Law Offices of David R. Greifinger, and David R. Greifinger for Defendant and Respondent Mark A. Ozzello.

Markun Zusman Freniere and Compton, and John A. Marshall for Defendant and Respondent Markun Zusman Freniere and Compton.

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A doctor sued his former lawyer (and the firm with which the lawyer was "of counsel") for malpractice, breach of fiduciary duty and fraud. The trial court denied the doctor's motion to continue the trial, denied his motion to make a late designation of an expert witness, and after the doctor's opening statement at trial, granted a nonsuit in favor of the lawyer and firm because the doctor could not establish two elements common to all of his claims. We conclude there was no error, and affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. Loss of medical license

Robert Chancellor (plaintiff) is a medical doctor licensed in Nevada. In the early 2000s, the Nevada Board of Medical Examiners (the Board) revoked his license to practice medicine on the ground that he was doing so while under the influence of controlled substances. The Board reinstated his license in or before 2014.

B. Lawsuits against the Board

1. Federal lawsuit

In 2015, plaintiff hired a disbarred lawyer to draft a complaint that could be used to initiate a Nevada-based lawsuit against the Board and others for abuse of process, defamation and fraud in its handling of the administrative proceedings regarding his medical license. At some point, plaintiff started speaking with Brittany Hamilton (Hamilton), a newly admitted California lawyer. Around that time, Hamilton began workingfor Mark Ozzello (Ozzello), a more experienced California attorney, who was then working "of counsel" at the law firm of Markun Zusman Freniere and Compton, LLP ("the firm"). Ozzello told plaintiff that the complaint drafted by the disbarred lawyer "needed a fair amount of work."

In late August 2015, plaintiff signed a written retainer agreement with Ozzello. Under the agreement, Ozzello promised to conduct legal research for plaintiff. The written retainer did not obligate Ozzello to represent plaintiff, although Ozzello orally promised to represent him if Ozzello was able to find a Nevada-licensed cocounsel (because Ozzello himself was not authorized to practice law in Nevada).

In early September 2015, Ozzello told plaintiff that the complaint had to be filed the next day (to avoid statute of limitations problems), that Ozzello had not found cocounsel, and that plaintiff would therefore need to file the complaint as a self-represented litigant. Because the complaint provided by the disbarred lawyer had been formatted for filing in federal court, plaintiff filed the complaint in federal court as a self-represented litigant. Ozzello subsequently prepared an amended complaint, which plaintiff also filed as a self-represented litigant.

In early 2016, the Board and other defendants moved for judgment on the pleadings. Plaintiff paid Ozzello $8,000 to draft an opposition to that motion. Ozzello took the money and drafted the opposition, but refused to give it to plaintiff and urged plaintiff to call the Board's attorney and offer to dismiss the case in exchange for a promise not to seek sanctions against plaintiff for filing a frivolous lawsuit.

Plaintiff located a Nevada-based lawyer on his own, obtained a continuance of the due date for the opposition, and filed an opposition.

The federal court granted the motion for judgment on the pleadings and dismissed plaintiff's case.

2. State lawsuit

While the motion for judgment on the pleadings was pending in plaintiff's federal lawsuit, he filed a lawsuit against the Board involving similar allegations in Nevada state court. He was represented by a Nevada attorney.

II. Procedural Background

A. Complaint

As a self-represented litigant, plaintiff in March 2017 filed a verified complaint against Ozzello and the firm alleging claims for (1) legal malpractice, (2) breach of fiduciary duty, and (3) fraud. All three claims were based on Ozzello's alleged (1) "fail[ure] to prepare and submit" plaintiff's "lawsuit complaint with a reasonable amount of skill," (2) "knowing[] and intentional[]" act of "provid[ing] false and incorrect information concerning [his] role within the lawsuit as attorney of record, and the strategy [of] prosecuting plaintiff's case [in a manner that] was designed more to protect [his] self-interest than that of" plaintiff, and (3) giving of "poor legal advice which is the proximate cause of the legal hurdles with the plaintiff's . . . case."

B. Denial of continuance

Following the initial case management conference in July 2017, the trial court set trial for March 12, 2018. In November 2017, plaintiff, Ozzello and the firm submitted a written stipulation to continue the trial date to June 11, 2018. The trialcourt did not sign the stipulation. Plaintiff learned of the court's refusal to continue the trial on January 25, 2018.

On February 8, 2018, plaintiff—now represented by counsel—filed an ex parte application to continue the March trial date for four months (ostensibly, to July 2018). Citing the still-ongoing Nevada state lawsuit, plaintiff urged that a continuance of this case was warranted (1) because "possible inconsistent judgments" might arise in the two lawsuits, (2) because the outcome of the Nevada state lawsuit might "limit[]" the remedies available in this case, including having a possible collateral estoppel effect, and (3) because plaintiff could use discovery obtained in the Nevada state lawsuit in this case.

The trial court denied plaintiff's request the very same day.

Plaintiff filed a petition for a writ of mandate with this court to review the denial of his continuance request. We stayed the trial court proceedings to review the petition, but ultimately denied the petition and dissolved the stay.

Upon dissolution of the stay, the trial court fixed a new trial date for July 9, 2018, more than four months after the previously set trial date.

C. Motion for late designation of expert

Discovery in this case was completed by January 25, 2018, except for plaintiff's deposition, which occurred in February 2018.

On April 27, 2018, plaintiff—once again self-represented — filed an ex parte motion to designate an expert witness to testify about "the standard of care in legal malpractice cases." Plaintiff explained that he had not designated this expert earlier because (1) he had mistakenly thought the court had signed the parties' stipulation to continue the trial, (2) he "did not realize [he] needed to designate an expert" on the standard of care "prior tothat time," and (3) he had difficulty retaining an expert because he was a self-represented litigant.

Following an unreported hearing on May 23, 2018 at which the trial court heard "argument," the court denied the motion.

D. Trial

On July 9, 2018, the matter proceeded to a jury trial.

The trial court allowed plaintiff, who was still proceeding as a self-represented litigant, to have a lawyer as his "cocounsel."

Plaintiff moved for a continuance on the ground that Hamilton was unavailable as a witness. The trial court denied the motion after finding that plaintiff had never subpoenaed her as a witness and had not attempted to do so until June 21, 2018, which was nearly three months after the trial court set the current trial date. The court found that plaintiff's efforts were "insufficient and not due diligence."

Plaintiff then gave his opening statement, which was comprised of the facts set forth above. The only additional fact the plaintiff articulated was that the Nevada state lawsuit was still ongoing.

After plaintiff finished his opening statement, both Ozzello and the firm moved in writing and orally for a nonsuit. The court entertained argument outside the jury's presence, and allowed plaintiff to consult with his cocounsel. The court granted nonsuit in favor of the firm because plaintiff had not argued for the firm's liability at all during his opening statement. The court also granted nonsuit in favor of Ozzello. The court found that, even accepting the facts set forth by plaintiff in his opening statement as true, plaintiff could not prove Ozzello's negligence as a lawyer because doing so required expert testimony and plaintiff had not designated an expert witness. The court rejected plaintiff'sargument that Ozzello's malpractice—including his willingness to undertake tasks beyond those set forth in the written retainer agreement—was so obvious as to be subject to the "common knowledge" of the jurors and thus susceptible to proof without an expert witness. The court found that plaintiff's remaining claims were derivative of his malpractice claim, and thus mandated the same ruling.

E. Entry of judgment and appeal

Following the trial court's entry of judgment for Ozzello and the firm, plaintiff filed this timely appeal.

DISCUSSION

Plaintiff argues that the trial court erred in (1) denying his February 2018 motion for a continuance, (2) denying his April 2018 motion for late designation of an expert, and (3) granting the nonsuit.¹

I. Denial of February 2018 Continuance Motion

Trial courts enjoy "broad discretion" in deciding whether to continue a...