Wang v. Nesse

81 Cal.App.5th 428

297 Cal.Rptr.3d 149

Dana X. WANG, Plaintiff and Appellant,

v.Eden S. NESSE, as Executor, etc., et al., Defendants and Respondents.

H048669

Court of Appeal, Sixth District, California.

Filed July 20, 2022

Joseph A. Hearst, Robert M. Vantress, Vantress Law Group, for Plaintiff/Appellant.

John P. Girarde, Stephanie Yee, Murphy, Pearson, Bradley & Feeney, San Francisco, Jerry R. Hauser, Miller-Hauser Law Group, San Francisco, for Defendant/Respondent.

Wilson, J. Dana X. Wang sued her former attorney, Paul S. Nesse, alleging professional malpractice in his representation of Wang in her marital dissolution action. Following Nesse's death, his estate moved for summary judgment on the grounds that Wang's complaint, filed on December 21, 2015, was barred by the one-year statute of limitations in Code of Civil Procedure section 340.6.¹ According to Nesse's estate, although Wang and Nesse filed a substitution of attorney form on December 30, 2014, Nesse's representation of Wang had actually ended earlier, on December 3 or December 17 at the latest, when Wang "discharged" Nesse or "consented" to his withdrawal. The trial court agreed and granted the motion.

Wang appeals, arguing that there is a triable issue of material fact as to whether Nesse continued to represent her on December 21, 2014, so that Nesse's estate failed to establish that the statute of limitations bars her complaint as a matter of law. We agree with Wang and reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND ²

A. Factual background

In November 2013, Wang retained Nesse and his professional corporation, Paul S. Nesse, APC (Nesse),³ to represent her in her marital dissolution action against her husband, Job Lawrence, in Santa Clara County Superior Court No. 2013-6-FL-010041. Nesse's representation of Wang continued until sometime in late 2014; the precise date that the representation ended comprises the crux of this appeal. Although the parties filed a fully executed substitution of attorney form with the court on December 30, 2014, after having signed it initially on December 23, Nesse contends the facts show that his representation of Wang ended prior to that.

Accordingly, we summarize herein the facts relating to Nesse's representation of Wang in the weeks preceding the filing of the substitution of attorney form.

On October 15, 2014, Leah Amini, counsel for Lawrence in the dissolution action, e-mailed Nesse asking if Wang would agree to let Lawrence take their children out of the state for the holidays. On October 24, Amini followed up her prior e-mail and asked Nesse, "May I hear from you regarding the below email please?" The record does not show any response from Nesse.

On October 30, Nesse e-mailed Wang with the subject "Wang/Lawrence—URGENT MATTERS," stating: "Despite my efforts to contact you, you have not responded regarding fees. Please give me a call so we can discuss that issue. [¶] Additionally, we have not heard from you regarding the choice of a mediator. Also, you have not responded to my letter to you enclosing Ms. Amini's letter regarding Christmas. [¶] Obviously, if you do not respond, I am sure Mr. Lawrence will file a Request for Order and seek an order shortening time. We should try to avoid that circumstance. [¶] I look forward to hearing from you forthwith."

The record does not include any further communications until December 2, when Eva Martelle, counsel in the dissolution action for Wang's and Lawrence's minor children, e-mailed Nesse, stating: "[Children] have asked to go to Maine for the holidays. I reached out to [Amini] to see if Father was supportive of this request and she indicated that he is. Is Mother willing to agree to permit the kids to spend time in Maine over the holidays? If so, I can draft a Stipulation and Order to this effect. Let me know."

Nesse e-mailed Wang the next day, December 3: "[My paralegal] and I have attempted to contact you on many recent occasions, both by telephone and email, all to no avail. It is becoming increasingly difficult to represent you, since there is no communication between us. Moreover, the issue of attorney's fees is once again something which must be resolved. According to the billing dated November 25, 2014, the balance is $9,924.47. I am at a loss to understand why you essentially have refused to pay this bill and will not even communicate regarding its content. If there is a problem with the billing, you can simply ask me questions and I will do my best to respond in a forthright manner. [¶] Therefore, I must call upon you once again to contact me, and, if not, then I will have no other choice but to withdraw as your counsel. Attorneys cannot represent clients who fail to communicate. The opposite is also true, i.e. attorneys should communicate with clients. [¶] If I do withdraw from your case, then your billings are still owed as of the date of withdrawal and we will move forward toward collection of those funds. [¶] Please contact me forthwith."

On December 9, Lawrence e-mailed Wang directly, stating: "Please alert Mr. Nesse that my attorney and Minor's Counsel (both cc'd) have sent Mr. Nesse several messages beginning in early October to last week (see below) regarding holiday travel for [children]. They have received no response from him. Please instruct Mr. Nesse to provide them with an answer. If we do not receive a reply our alternative is to file for a court order to allow [children] to travel as we have done in years past."

Wang responded to Lawrence via e-mail that same day. She posed a number of questions regarding the children, and asked Lawrence to "[p]lease inform me whether you will be replying to the questions below by December 10, 2014. You do not need to cc: my attorney."

Lawrence responded the next day, December 10, copying Amini and Martelle, stating: "Please share your concerns with Mr. Nesse and he can confer with Minor's Counsel on how to address them in the process of drafting the Stipulation and Order so [children] can spend time in Maine over the holidays. We all hope that we can avoid the time and expense of filing for a court order."

Also on December 10, Nesse's paralegal Kelly Stratico e-mailed Wang with the subject, "EXTREMELY URGENT," informing her that Lawrence had served an ex parte application seeking an order allowing the children to travel to the east coast for the holidays. The e-mail stated: "At 4:38 this afternoon, we were served with an ex-parte in your matter. I have attached a copy to this email. We must hear from you, as we need to file a response within 24 hours. [¶] It is imperative that you contact our office immediately ."

Shortly thereafter on the same day, Stratico e-mailed Wang again, stating: "Attached is a Substitution of Attorney form which Paul requests that you sign and return to our office. Due to your failure to pay fees, he will not be responding to the ex-parte served on our office this afternoon unless he is paid in full. Therefore, please either contact me to make payment arrangements or sign the attached Substitution of Attorney and return [it] to our office immediately . [¶] Thank you for your cooperation."

On December 12, Stratico forwarded Wang an e-mail from Amini informing them that the court had denied the ex parte application and had set a hearing on the matter for December 18, but that Nesse did not plan on attending the hearing: "Paul asked me to send you the attached and to tell you that he does not plan on attending the hearing. [¶] Please sign the Substitution of Attorney and forward to our office."

On December 15, Nesse e-mailed Amini and Martelle, with a copy to Wang, stating: "I will be withdrawing as Ms. Wang's attorney. Unless I receive a substitution of attorney forthwith, a Request for Order/Motion will be filed. As such, I will not be appearing at the hearing on December 18, 2014."

Later on December 15, Nesse e-mailed Wang directly, stating: "Once again, please sign the Substitution of Attorney and return to me immediately. If not, I will be required to file a Request for Order or Motion wherein I must state the reason for the request for withdrawal. I would rather handle this between you and I than to have the other two attorneys involved. [¶] I look forward to hearing from you, but so far you have been non-responsive."

On December 16, Nesse forwarded Wang an e-mail that he and Martelle had received from Amini regarding a stipulation Wang had agreed to, unbeknownst to Nesse, to allow the children to travel to the east coast for the holidays. Amini's e-mail stated: "It appears from Dana [Wang]'s email to Eva [Martelle] that Dana has agreed to allow the children to travel to Maine/East Coast during the winter holidays. [¶] I am attaching a stipulation and order that reflects the parties' agreement. Please review and let me know if we can take off Thursday's hearing. [¶] Although I did receive your email that you will no longer be representing Dana, until I receive a substitution of attorneys, I am obliged to send this to you."

The stipulation allowed the children to travel to the east coast for the holidays and took the December 18 hearing off calendar. It also stated that, "[t]he Petitioner Dana Wang, and the Respondent, Job Lawrence, together with their respective attorneys, Paul Nesse and Leah Moslehi Amini, and Eva Martelle, counsel for the minor children," agreed to the stipulation, and included signature blocks for those listed individuals. Wang had e-mailed Martelle directly on December 15, stating: "In light of Father's lack of response to my questions and to avoid a repeat of this summer's trip to Maine in court, please draft a stipulation and order for the children to spend time in Maine for the holiday season. Please bound the dates of travel and that the children must return to California by January 6 for the start of school on 1/7/2015. Please send the document directly to me for signature."

All parties and attorneys signed the stipulation, including Nesse on December 17; the court...