Date: 06-06-2006

Case Style: Gabriela Gonzalez v. Emelike I. Kalu

Case Number: B183467

Judge: Croskey

Court: California Court of Appeal Second Appellate District on appeal from the Superior Court of Los Angeles County

Plaintiff's Attorney:

Robert Younger of The Younger Law Firm, Newport Beach, California

Defendant's Attorney:

Ave Buchwald, Blumberg Law Corporation, Los Beach, California

Description: Gabriela Gonzalez appeals a summary judgment in a legal malpractice action based on the statute of limitations, Code of Civil Procedure section 340.6. After filing an administrative complaint against her employer with the Department of Fair Employment and Housing (DFEH) and telling Gonzalez that the case would take a very long time and that he would call her or send her a letter, Emelike I. Kalu had no contact with Gonzalez for almost three years. Gonzalez contends the limitations period was tolled or did not commence during the time Kalu failed to communicate with her. We conclude that there are triable issues of fact as to whether Kalu continued to represent Gonzalez during that time, which would toll the limitations period, and whether such "continuing representation" was for a period sufficient to make her action timely. We therefore will reverse the summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Factual Background

Gonzalez worked for a building maintenance company as a cleaner in a food court. She hired Kalu on June 2, 2000, to represent her in a claim against her employer in connection with allegations of sexual harassment by a fellow employee. Kalu sent a letter to the employer on June 6, 2000, stating that the employer was legally responsible for the alleged harassment. The letter demanded a settlement and stated that if the employer failed to settle the matter, Gonzalez would file claims with the appropriate federal and state administrative agencies and proceed to litigation. The letter warned the employer not to retaliate by terminating Gonzalez's employment. By the end of the month, Gonzalez told Kalu that she had been fired.

Kalu filed an administrative complaint with the DFEH on July 31, 2000, alleging sexual harassment only.1 He sent a letter to Gonzalez's former employer that same day stating that her discharge was an act of retaliation, that he had requested a right-to-sue letter, and that upon receipt of a right-to-sue letter he would sue the employer for sexual harassment and wrongful termination. According to Gonzalez, Kalu or someone in his office told her that same day "that the case was going to take very long, and they were going to call me or send me a letter."

Gonzalez maintains that she did not hear from Kalu and did not attempt to contact him from July 31, 2000, until June 2003, when she visited his office to pick up her file for purposes of separate litigation against her former employer and first learned that Kalu was not prosecuting her case.2 She maintains that Kalu never informed her before June 2003 that he would not prosecute the matter further. According to Kalu, he orally informed Gonzalez at some time that he would not file a lawsuit on her behalf. Kalu maintains that Gonzalez agreed to drop the case if no settlement was forthcoming and that his last conversation with her before she picked up the file in June 2003 was in December 2000. Although Kalu's usual practice was to advise a client in writing upon his withdrawal from representation, there is no evidence of such a writing in this case.

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Click the case caption above for the full text of the court's opinion.

Outcome: The judgment is reversed. The matter is remanded for further proceedings consistent with the views expressed herein. Gonzalez is entitled to recover her costs on appeal.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None