Stuart v. Superior Court

Opinion

TURNER, P. J.

Bruce D. Stuart, a defendant in a legal malpractice action, seeks a writ of mandate directing the respondent court to grant his summary judgment motion.

On August 8, 1986, plaintiff Carmen Robledo Andrade suffered an injury while on the premises of Ron Rose Arco Station (Arco). He hired Mr. Stuart to represent him in a personal injury lawsuit. On March 6, 1987, Mr. Stuart filed a Judicial Council form personal injury complaint. The summons and complaint in the municipal court action were served on Arco on May 6, 1987. After effecting service of the summons and complaint, Mr. Stuart commenced settlement negotiations with Arco’s insurance carrier, Fireman’s Fund. Mr. Stuart granted Arco an open extension of time to answer the complaint. The open extension was confirmed in a letter from Fireman’s Fund to Mr. Stuart dated September 15, 1988.

In January, 1990, Mr. Stuart was advised that Mr. Andrade desired to be represented by a different attorney. Mr. Stuart signed a substitution of attorney form on January 26, 1990. Mr. Andrade’s new attorney, Speros Maniates, signed the form on the same day. The substitution of attorney form was filed with the municipal court on February 26, 1990. Since the summons and complaint were filed on March 6, 1987, pursuant to Code of Civil Procedure section 583.210,

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the complaint had to be served within 3 years and the proof of service had to be returned within 3 years and 60 days of that date, or May 5, 1990. Mr. Maniates did not return the summons prior to May 5, 1990. TTiere is no evidence Arco moved to dismiss the personal injury action filed in municipal court by Mr. Stuart at any time after May 5, 1990.

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Mr. Andrade filed his legal malpractice complaint against Attorneys Stuart and Maniates in superior court on June 4, 1991. The purported acts of malpractice consisted of “failing to file a meritorious action in the Superior Court where the damages exceeded $25,000 and in failing to serve any of the defendants within the three years of the date of the filing of the complaint.” On May 18, 1992, Mr. Stuart filed a motion for summary judgment. The motion was argued and taken under submission on July 23, 1992. In a minute order issued August 18, 1992, the respondent court denied the motion, finding there were “triable issues of fact regarding defendant’s alleged malpractice.” The minute order did not “specifically refer to the evidence proffered in support of and in opposition to the motion which indicate that a triable issue of controversy exists.” (§ 437c, subd. (g); see