Legal Question in Legal Malpractice in California

In a California legal malpractice action, the trial court granted summary judgement on 10 counts. The appellate court provided a written opinion deciding 8 counts, not 10.[Cal. Const. Art. VI, section 14] The reviewing court never mentioned the remaining 2 causes of action from the summary judgment. The appellate court refused rehearing, and the CA Supreme denied petition for review.[3 months ago] The remittitur issued returning jurisdiction to the trial court. [5 months ago]

Can the original summary judgment or appeal be challenged under declaratory relief to determine it is interlocutory in nature [CCP 904.1(a)] and thus set aside the prior summary judgment allowing to move for jury trial under CCP 473 on constitutional or error of law grounds?

The 2 causes remaining have triable issues present based on the evidence and as a matter of law established in the appellate brief.

Thanks


Asked on 12/27/09, 10:52 am

1 Answer from Attorneys
Robert F. Cohen Law Office of Robert F. Cohen

It sounds like you've gone very far without an attorney, so why seek a legal opinion at this point - especially when you're suing a lawyer for malpractice? From what you have written, it appears that the matters determined on appeal have been fully adjudicated. If the summary adjudication of issues was against you, then those causes of action are gone. It all depends on 1) how you framed the appeal and whether the court of appeal's decision was dispositive of the entire motion; and 2) whether the motion for summary judgment addressed all of the causes of action.

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Answered on 1/01/10, 11:56 am


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