Petition for Writ of Certiorari — Magyar v. Olan

— a

Busremns Court, U3,

41° 496 FILED

SEP 23 \99)

!

NO. QeFINE OF THE CLERK |

IN THE

ae

COURT OF APPEAL OF THE UNITED STATES

OCTOBER TERM 1991

LEO MAGYAR and

MAGDALENA MAGYAR, Petitioners

vs.

BENNET OLAN, ESQ.,

LESTER, FRIEDMAN, ESQ. and

LINDA HORNER, ESQ, Respondents.

PETITION FOR A_WRIT OF CERTIORARI

TO THE CALIFORNIA SUPREME COURT

PETITION FOR A WRIT OF CERTIORARI

LEO D. MAGYAR

400 N. Martel Ave.

Los Angeles, CA 30036

Phone: (213) 653-3069

Petitioner Pro Persona

i

QUESTIONS PRESENTED FOR REVIEW

Whether the Law and Motion Judge to

order, or to allow, Summary Proceedings,

before opportunity is given to plaintiffs

to present their cases is in violation of

the plaintiffs' fundamental rights to be

heard.

Whether the Law and Motion Judge can

rightfully disregard petitioners' Motion

for Early Trial Setting Date filed before

the commencement of Summary Proceedings.

ii

TABLE OF CONTENTS

Page

Questions Presented i

Table of Contents ii

Table of Authorities iv

Opinions Below 1

Jurisdiction 3

Jurisdiction and Statutory 3

Provisions Involved

Manner in Which Constitutional 4

Claims are raised

Statement of the Case 6

Reasons for Granting the Writ 20

Conclusion

Appendix:

A. Supreme Court California la 1A

Denial of Review (626.91)

B. Court of Appeals California 1B

Opinion (4.4.91)

C. Court of Appeals California 1C

Denial of Rehearing (4.23.91)

D. Superior Court of California 1D

Notice of Ruling (5.14.90)

3]

@

iii

Superior Court of California

Order Granting Motion for Summary

Judgement and Judgement (1.5.90)

Superior Court of California

Motion of Ruling (12.20.89)

Superior Court of California

Notice of Ruling (9.18.89)

1E

iv

TABLE OF AUTHORITIES

Page

Gigax v. Ralston Purina Co. (1982) 24

136 CA 3d 591, 186 CR 395

Hayman v. Block 22

176 CA 3d 629, 638-639, 222CR 293, 298

Maxwell v. Coburn (1980) 22

105 3d 180, 185, 163 CR 912, 914

Segura v. Brundage (1979) 23

9. CA 34 19, 26; i535 CR 777, 782

Societe International Pour 10

Participations Industrielle

et Commerciales S.A. v. Rogers,

357 U.S. 197, 209 (19586),

Weid & Brown: GUIDE (10:10) as

CONSTITUTION & RULES

California Insurance Code 790.03, 7

and subsections

Court Code Sec. 68600 (AB3300) 9

Fifth Amendment of the Constitution 359530

Eighth Amendment of the Constitution 5,18

U.S. Supreme Ct Rule 13 © K

CCP §36 Motion for Preference 24

IN THE

COURT OF APPEAL OF THE UNITED STATES

OCTOBER Term 1991

LEO MAGYAR and

MAGDALENA MAGYAR, Petitioners

VS.

BENNET OLAN, ESQ.,

LESTER, FRIEDMAN, ESQ. and

LINDA HORNER, ESQ. Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE CALIFORNIA SUPREME COURT

Petitioner Leo Magyar, respectfully

prays that a writ of Certiorari issue to

review the California Supreme Court's

Denial, entered on June 26, 1991, to review

the California Court of Appeals Confirma-

tion of the Summary Judgement ordered by

the Superior Court of California.

0 NITOA RETO

The Second Appellate District,

Division One (No. B051691, $021010) in the

Supreme Court of the state of California,

IN BANK DENIED, Appellant's petition for

review of the Opinion of California Court

of Appeal; Leo Magyar et al. v. Olan,

Eriedman, et al. The Denial of the

California Supreme Court is reproduced in

Appendix A. The-reproduced unpublished

Opinion of the California Court of Appeals

(BO051691, Super Ct No. C603609, dated April

4, 1991), confirming the Summary Judgement

appears in Appendix B.

The California Court of Appeals Denial

of Petition for Rehearing in Appendix C.

The reproduced Order of Granting

Summary Judgement and the Notices of Ruling

of the Superior Court of California are

Appended as follows: Notice of Ruling

dated 5/14/90 in Appendix D, Order Granting

Summary Judgement, dated January 5, 1990 in

Appendix E, Notice of Ruling dated December

20, 1989 in Appendix F, Notice of Ruling

dated September 18, 1989 in Appendix G.

JURISDICTION

The Denial of the California Supreme

Court to Review the case was entered on

June 26, 1991. This petition is filed

within 90 days of that date. United States

Supreme Court Rule 13.

Federal questions conflicting the

Fifth and the Eighth Amendment to the

Constitution were timely raised by

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

UNITED STATES CONSTITUTION -

FIFTH AMENDMENT:

"No person shall be held to answer for

a capital, or otherwise infamous crime,

unless on a presentment or indictment of a

Grand Jury except in cases arising in the

land or naval forces, or in the Militia,

when in actual service in time of War or

public danger; nor shall any person be

subject for the same offense to be twice

put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a

witness against himself, nor be deprived of

life, liberty, or property, without due

process of law; nor shall private property

be taken for public use, without just

compensation."

UNITED STATES CONSTITUTION -

EIGHTH AMENDMENT.

Excessive bail shall not be required,

nor excessive fines imposed, nor cruel and

unusual punishments inflicted.

MANNER IN WHICH CONSTITUTIONAL

CLAIMS WERE RAISED-

The very first sentence in the

APPELLANT'S OPENING BRIEF to the California

Court of Appeals was: "Did the Superior

Court abuse its discretion and violate

appellant's due process rights by directing

respondents to move for summary judgement

and by granting summary judgement?" Please

see Fifth Amendment to the United States

Constitution.

On page 21 of the Brief (supra)

petitioners state as follows: "To represent

that the judgement was punitive is nothing

Short of putting the blame on the court,

for punishing for the conduct of the one,

the other plaintiff also, which judgement

would be, while far not as grave, but just

as unconstitutional as..."

The above was with reference to the

issue presented by respondents_in their

Motion for Summary Judgement in conflict

with the Eighth Amendment to the United

States Constitution.

STATEMENT OF THE CASE

Respondent -defendants have represented

as attorneys the Petitioner-plaintiffs ina

lawsuit against the United Fire Insurance

Company (hereafter UFIC) ina lawsuit

(hereafter underlying case) Claiming unpaid

benefits Promised by health insurance

policies, |

Petitioners, while they were husband

and wife, each of them have individually

Owned their Policies, and were separate

Dlaintiffs.

Petitioner Plaintiff Pro se Leo

Magyar, a high school graduate, has limited

command of English, and has no prior |

experience in legal matters.

Plaintiff Magdalena Magyar has worked

for years as a radiation therapist in

hospitals and, had she been asked at the

trial of the underlying case, she could

have competently testified on questions

relative to hospitals, doctors, and medical

treatments.

Both plaintiffs have been American

citizens since much before the underlying

action and before the insurance policies

offered by the defendant insurer were

accepted by them.

Respondent attorneys have filed suit

(NOV. 22, 1982) against the UFIC in the

Superior Court of California for Breach of

Contract, Intentional tort, Declaratory

relief, and breach of Insurance Code

section 790.03 with the claims being

Supported by the subsections (h) (2),

(h) (3), (mh) (4), (nh) (5), and (h) (13) asking

for damages of $56,067.64 plus 10% interest

and for exemplary damages of $500,000.00

(CT 45-52).

The policies involved were: one to

each of the petitioner-plaintiffs, insured

by Valley Forge Insurance Company policies

assumed by the UFIC and one of each of the

plaintiffs, issued by the UFIC. All of

these policies were promising nominal per

diem benefits payable on hospital stays,

and not on expense incurred basis. In

addition, petitioner Leo Magyar owned a

policy offered and issued by the UFIC with

benefits for hospital, medical and surgical

expenses limited to and aggregate benefit

of three thousand dollars.

The computation of the damage of

$56,067.64 was done by respondent-attorneys

(CT 204-208) with their listing marking the

unprecedented variations and frequency of

the years-long systematic violation of just

about every subsection of sect 790.03 of

the California Insurance Code.

Lacking opposition on the part of the

Respondents, the underlying case was

subsequently removed to the US District

Court which, after an aborted trial, ruled

that the dismissal of the case was on the

merit (CT 220-221).

On June 9, 1986, Petitioners filed

Suit against Respondents indicating tort as

the reason.

The instant case is provoked by the

Respondent-defendants' action and failure

to act before, during, and after the trial

of the underlying case.

The Superior Court has assigned the

case to its Department 18 to be processed

under the Rules of a pilot program to be

developed i.a. with the solicited

contributory suggestions of experienced

attorneys, to reduce the delays in trials.

This project, known as the "Fast Tract", is

operating under Court-Code Sec. 68600 also

known as AB3300.

During the courses of the proceedings,

Petitioner Magdalena Magyar has deceased at

age 76 (CT 138).

The present petition is on the

California Court of Appeals Opinion

confirming the Summary judgement brought in

the Superior Court of California.

The purpose of the Summary Proceedings

is to find whether there is at least one

triable issue.

And, as stated in (Dvorin v. Appellate

Dept. (1975) 15c 3d 648, 125 CR 771)

"Summary Judgement cannot, however, be

ordered by the court on its own motion"

In their Opening Brief (on page 15)

petitioners pointed out that the Law and

Trial Judge directed Respondents to move

for Summary Judgement and have shown that

the Fifth Amendment to the Constitution

ensures that no person will be deprived of

property without the due process of law.

The United States Supreme Court, in Societe

International Pour Participations

10

Industrielle et Commerciales S.A. v.

Rogers, 357 U.S. 197, 209 (1958),

recognized that "there are constitutional

limitations upon the power of courts, even

in aid of their own valid processes, to

dismiss an action without affording a party

the opportunity for hearing on the merits

of his cause.”

Respondents were unable to controvert

this fact.

The California Court of Appeals'

statement that "neither is there any

evidence the trial court directed

defendants to move for summary judgement"

is erroneously taken as if any motion for

summary judgement had been previously

filed, it had not been any Status

Conference held.

In addition, summary proceedings

should not be granted, due to the fact,

that the petitioner's motions listing about

11

twenty causes of action were twice before

the Court of Appeals and before the Law and

Motion Judge (CT 14-22, 212-49). A third

sampling of the issues claimed was included

in the Appellant's Opening Brief, as

follows:

Pages numbered 3 through 10 of Exhibit

No. 2S (CT 15-22), enclosed to the

opposition of the Appellants to the motion

of the Respondents for Summary Judgment,

lists the damaging actions, the negligence

and the lack of understanding the

underlying case by the Respondents. Some of

these causes of actions are listed below:

The Respondents

- did not name in the Complaint as

Defendants one of the insurers who

issued two of the policies in the

case,

- kept Appellants uninformed on the

Status of the case by hiding important

12

documents from tnem,

- did not properiy oppose the

transfer of the case to the U.os.

District Court,

- carried the case without being

informed on the rules of the court,

- neglected to call in witnesses for the

trial,

- failed to prepare Appellants-

Plaintiffs for witnessing,

Appellants,

- discredited plaintiffs several times

before the Court, saying that the

plaintiff wanted his day in the court

and that the plaintiff wanted the sun,

the moon and the stars,

- appeared unprepared to assist

Appellants at the depositions,

- failed to prepare the case for trial,

- failed to present the proofs at the

13

trial,

- failed to point out that the

adverse party

a) lied

b) manipulated documents

c) deceived the Court

d) extorted insurance policy

provisions,

- appeared at the trial unprepared,

uninformed, uninterested,

preconditioned to lose the case,

- did not understand the policy contract

or the dispositions of the laws,

- _-abandoned their client-Appellants,

contumaciously to the order of the

Court,

- confirmed the court order that the

case was tried on the merits, and

- refused to timely release the files,

resisting the court order, and they

did so in spite of the multiple

14

a

requests by attorney J. Lichtman and

on behalf of the Appellants.

In their Opening Brief, petitioner

cited authors R.I. Weil and I.A. Brown, Jr.

relating (10:144,1) Courts follow a three

prong analysis in ruling a motion for

summary judgement...... Se ane ae First what

issues are framed by the pleadings, since

the motion and opposition must be addressed

to these issues (10:145.1)?”"

None of the above issues were

mentioned in the respondents' motion. The

Court of Appeals was thoughtless about it.

The court of appeals was thoughtless

as well about the petitioners calling the

Court's attention to the fact that the

issues raised by the respondents as non-

disputed were sham pleadings, presenting no

real issues of facts to be determined by

court procedures (CT 41-43). Exceptions to

15

a

it are the issues #5, stating that because

of the plaintiff's refusal to answer

question the court dismissed the case and

issue #7 which was supported by the

declaration of John Taylor.

Notwithstanding the fact that none of

the issues were framed to the claims

pleaded by petitioners, respondents (CT 42)

and declarant (CT 44) stated that the

underlying case was dismissed by the court

because of the refusal by plaintiff to

answer questions while witnessing.

This position of the respondents was

adopted by the Court of Appeals of

California in the last entry of part II of

the Opinion:

"In short, it is unequivocally clear

that Mr. Magyar's conduct in the face of

repeated warnings from the trial judge did,

in the end, result in the dismissal of the

underlying action."

16

The above Opinion of the California

Court of Appeals is in striking conflict

with the Opinion of the United States Court

of Appeals for the Ninth Circuit which read

in part as follows:

"Point #5 in Discussion. . . “if the

dismissal had been a sanction for failure

to comply with a court order, might have

amounted to an abuse of discretion..."

"However, the record shows that plaintiffs

were scheduled to present at least one

other witness after Mr. Magyar. When

plaintiff's counsel declined to produce it,

the record was left devoid of evidence

Supporting the Magyar's case... with

nothing in the record to support

plaintiff's case, United was clearly

entitled to a dismissal." Copy of the

above cited Opinion has been enclosed as

Exhibit (#11) to Appellant's Briefs.

17

The California Court of Appeals has

also overlooked that the statement in Mr.

Taylor's Declaration (CT 44) showing that

the case was dismissed due to plaintiff's

failure to respond to examination...", and

that the issues #4 and 5 in respondents

separate statements of undisputed material

facts to read: "...plaintiff Leo Magyar

refused to answer many of the questions

posed..." and "5. Because of this refusal

by plaintiff, the court dismissed the case

in its entirety." are, both statements,

virtual allegations that the US District

Court was covering up with its Judgement on

the merit, penalties, imposed not only on

the witnessing party, but on the other

separate plaintiff who, except of spelling

her name, wordlessly attended the trial,

which judgement had heen too cruel and too

unusual punishment for her, conflicting the

Amendment VIII of the Constitution.

18

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[THE COURT:

THAT BEING THE CASE, THIS MATTER IS

DISMISSED ON THE COURT'S MOTION AND I GRANT

FURTHER THE DEFENDANT'S MOTION EARLIER

MADE. (CT 161-162).

REASONS FOR GRANTING THE WRIT

Certiorari should be granted for the

following reasons:

The case has never reached trial and

in essence not even status conference, as

the conference was used only the Law and

Motion Judge to direct respondents to move

for summary judgement.

The subject of the present petition is

on the granting the Summary Judgement by

the Superior Court of California, and on

the Confirmation of the Judgement by the

California Court of Appeal.

In summary proceedings the motion must

be directed to issues raised by pleadings.

20

The material facts for purpose of summary

judgement motion are those pleaded. Thus,

the declarations or other evidence

submitted must be addressed to the claims

raised in the pleadings. (Weil and Brown)

Guide (10:10)

None of the issues pleaded were

brought up by respondents in that motion.

John Taylor, who had admitted that he was

not designated as expert witness in this

law suit and that he had reviewed several

(not all of the) materials, did not address

in his declaration to any of the issues

pleaded by petitioners. In fact, delcarant

J. Taylor produced no admissible evidence

and the declaration was nothing more than

hearsay. His opinicn was his belief, and

not personal knowledge of facts.

21

The declaration mist:

° Show the deciarant's personal

knowledge and competency to

testify.

° State evidenciary facts, not

conclusions, and

° Not contain inadmissible hearsay

Or opinions (Hayman v. Block

(1986) 176 CA 3d 629, 638-639,

222 CR 293, °98)

Moreover: "The oprosing party has no

burden to controvert the moving party's

declarations if such declarations

themselves,... disclose a eviabic issue" of

fact. (Maxwell v. Coburn 1980) 105 3d 180,

185, 163 CR 912, 914).

The declaration is in conflict with

the opinion of the U.S. Court of Appeal.

"Defendant's burden is to dispute

every claim or theory presentec in the

complaint, even those ceficiently

22

pleaded..." (Segura v. Brundage (1979) 91

CT 3d 19,28, 153 CR 777, 782).

Non of the twenty claims presented in

petitioners' pleadings have been disproved.

In the order Granting Motion for

Summary Judgement (Appendix E) it is stated

"Having considered all of the evidence set

forth in the papers submitted, and the

inferences reasonably deductible therefrom,

the Court determined that there is not

triable issue as to any material fact and

that defendants are entitled to judgement

is a matter of law".

The order was prepared by respondents

and was signed by Judge of the Superior

Court.

If it is not specified that the

judgement was rendered by the Judge, while

in his capacity of Law and Motion Judge.

"However a law and motion judge has no

power to weigh evidence or references..."

23

(Gigax v. Ralston Purina Co. (1982) 136 CA

3d 591, 186 CR 395).

Weighing evidence or inferences is

trying, which means that there is issue to

be tried at trial.

Most importantly, in conflict with the

Fifth Amendment to the Constituion it was

denied plaintiffs to present their cases.

One other reason why certiorary should

be issued is that Summons indicated TORT as

issue, what includes abuse of fiduciary

responsibilities. Part of the $56,000

claim in the Summons disappeared,

presenting claims for $13,000 at the trial

of the underlying case.

The conclusion; certiorary should be

granted because petitioner moved for early

trial setting date before summary

proceedings have commenced.

"CCP-§36 Motion for Preference in

Civil Action - Party who is over 70...

24

(a) A party to a civil (1) action who

s over the age of 70 years may petition

the court for a preference, which the court

shall grant if the court makes all of the

SLlowing findings:

(1) The party has a substantial

r in the action as a whole."

This petition of the petitioner was

r “) Cy : ig c i } . + -

iot granted by the Superior Court of California.

CONCLUSION

For the reasons set forth above,

petitioner respectfully requests that a

writ of certiorari issue to review the

judgement of the California Supreme Court.+/|

Dated, September 21, 1991

Respectfully submitted,

Leo D. Magyar

400 No. Martel Avenue

Los Angeles, CA 90036

Petitioner Pro Per

1 If this Court elects to summary direct the Superior

Court of California to hold a trial of the case, it is requested to

order a jury trial and the respecting petitioner's motion for an

early trial setting date.

26

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NOT TO RE PUBLISHED

IN THE

COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT DIVISION ONE

LEO MAGYAR and MAGDALENA

MAGYAR, B051691

Case No.C603609

Plaintiffs and Appellants )NOTICE oF RULING

vs.

OLAN & FRIEDMAN,

BENNET OLAN,

LESTER FRIEDMAN and

LINDA HORNER,

Defendants and

Respondents.

eee eee ee ee ee ee

APPEAL from a judgment of the Superior

Court of Los Angeles County, Eric E.

Younger, Judge. Affirmed.

Leo D. Magyar, in pro. per., for Plaintiffs

and Appellants.

Baker, Silberberg & Keener and Thomas F.

McAndrews for Defendants and Respondents.

1B

INTRODUCTION

Plaintiffs Leo Magyar and Magdalena

Magyar appeal from a summary judgment

entered in favor of defendants Olan &

Friedman, Bennet Olan, Lester Friedman and

Linda Horner.

STATEMENT OF FACTS

Defendants represented plaintiffs ina

federal suit against United Fire Insurance

Company, in which plaintiffs sought

declaratory relief and alleged breach of

contract and fraud. Specifically,

plaintiffs alleged United Fire Insurance

Company acted in bad faith in refusing to

make payments on plaintiffs' claims for

health insurance benefits. United Fire

Insurance Company defended the action by

asserting plaintiffs were attempting to

obtain insurance proceeds fraudulently by

visiting a number of European health spas

2B

and then claiming the visits as hospital

stays. In addition, United Fire Insurance

Company asserted plaintiff Leo Magyar had

made material misrepresentations when

applying for the policies.

During the trial of the underlying

action, plaintiff Leo Magyar repeatedly

gave non-responsive answers to questions

asked on cross-examination. He continued to

do so even after the trial judge gave him

several warnings and expressly directed him

to give responsive answers. Each of the

questions to which he gave a non-responsive

answer posed a potential danger to the

success of plaintiffs' case. After warning

Mr. Magyar that another non-responsive

answer would result in the striking of his

testimony, the district court judge took

precisely that step when Mr. Magyar again

gave a non-responsive answer. Defendants

informed the court the plaintiffs had no

3B

other witnesses to offer, after which the

district court dismissed the case.

John Taylor is an expert in the field

of legal malpractice. In his opinion,

defendants' representation of plaintiffs in

the underlying action complied with the

professional standard of care and did not

result in the dismissal of the underlying

action.

CONTENTIONS

I

Plaintiffs contend the trial court erred in

_ granting summary judgment, in that there

clearly are triable issues of material

fact.

bs

Plaintiffs further contend the trial

court violated their right to due process

of law by directing defendants to move for

4B

Summary judgment, predetermining the

outcome of the summary proceedings and

denying plaintiffs an early trial setting

date.

III

Finally, plaintiffs assert the trial

court erroneously continued to handle the

case under the delay reduction project.

DISCUSSION

I

Plaintiffs contend the trial court

erred in granting summary judgment, in that

there clearly are triable issues of

material fact. We disagree.

Summary judgment properly is granted

where the “affidavits, declarations,

admissions, answers to interrogatories,

depositions, and matters as to which

judicial notice... may be taken" in

5B

support of and opposition to the motion

"show that there is no triable issue as to

any material fact and that the moving party

is entitled to a judgment as a matter of

law." (Code Civ. Proc., § 437c, subds. (b),

(c).) Summary judgment is a drastic

procedure to be used with caution;

accordingly, the moving papers will be

Strictly construed while the opposing

papers will be liberally construed. (Molko

v. Holy Spirit Assn, (1988) 46 Cal.3d 1092,

1107.)

In order to secure summary judgment,

the moving party must demonstrate that

there is no material question of fact

requiring trial on any hypothesis

whatsoever. (Molko v. Holy Spirit Assn.,

Supra, 46 Cal.3d at p. 1107.) In

determining the motion, the court must

consider presumptions and draw inferences

from the facts adduced where the inference

6B

is the only reasonable one which may be

drawn (see Unjian v. Berman (1989) 208

Cal.App.3d 881, 884, review den. May 23,

1989; Hooks v. Southe Per te

Medical Group (1980) 107 Cal.App.3d 435,

441), but has no power in a summary

proceeding to weigh one inference against

another or against other evidence (id. at

p. 442; Brown v.

Genes oe 144, 145). (Code Civ. Proc.,

Sorc, SUBG. (c).)

On appeal, review is limited to the

facts shown in the evidence submitted in

support of and opposition to the motion.

(McDaniel v. Sunset Maner Co, (1990) 220

Cal.App.3d 1, 5; Garcia v. Wetzel (1984)

159 Cal.App.3d 1093, 1095.) Since the trial

court's decision is one of law, the

reviewing court independently considers the

construction and effect of the supporting

and opposing papers. (McDaniel, supra, at

7B

|

Pp. 5; Hoffman v. Citade] General Assurance,

Ltd, (1989) 194 Cal.App.3d 1356, 1362.) Any

factual conflicts will be resolved in favor

of the party opposing the motion. (Zejijlman

v. County of Kern (1985) 168 Cal.App.3d

Notwithstanding plaintiffs'

characterizations, the instant action

really involves nothing more than a claim

»9£ legal malpractice. While plaintiffs

allege numerous omissions on the part of

the defendants, each of these omissions

pertains to the manner in which the

defendants prosecuted the underlying action

on plaintiffs’ behalf. In one instance,

plaintiffs do allege a seemingly unrelated

breach of contract, asserting defendant

Bennet Olan contracted to provide his

personal services in the prosecution of the

underlying action rather than the services

of his associates, but he did not do so.

8B

pate:

,

22 Q1iIM 1 me - 2 ? a F + - 2 > - Bs r

AsSSuUMIiNg the UGC OI 1 Allegation,

wnetner plaintiffs were damaged again turns

ym tne manner in wnich the defendants

prosecuted tne underlying action. If either

"nere was no professional negligence or any

- - on < ~ . ‘ +

professional negligence was not ne

pProzimate cause of plaintiffs' failure to

prevali in the underlying action, then

plaintiffs suffered no damage from tne

2A4hEC9GC0 Dpreacn of contract.

7ne maintenance of 4 ,aUusSe oF aCEL AGI

for .segal malpractice requires evidence o!

The existence of an attorney-client

- , rea ; - +) > mayan} r

re iatio ISN1Ip and awrongful act Or omission

7

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of the bar practicing in a similar locale

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9B

Krause (1978) 87 Cal.App.3d 970, 976.)

Since each of the foregoing elements is

essential to the maintenance of the action,

a defendant will be entitled to a summary

judgment upon a showing that there is no

triable issue of fact as to any one of the

elements.

Generally, expert testimony on the

professional standards of care and the

consequences of any breach will be required

to prove or disprove a claim of legal

malpractice, for this is not a matter of

common knowledge. (Lipscomb v. Krause,

Supra, 87 Cal.App.3d at p. 976; see also

Wright v. Williams (1975) 47 Cal.App.3d

802, 810.) Accordingly, expert testimony on

the subject is conclusive proof of the

propriety or iwpropriety of particular

conduct. (Lipscomb, supra, at p. 976.)

In support of their motion for summary

judgment, defendants submitted the

10B

declaration of Jonn Taylor, an attorney

well known in the community for his

expertise in matters of civil litigation

and legal malpractice. In Mr. Taylor's

opinion, defendants' representation of

plaintiffs complied with the applicable

standard of care and did not result in the

dismissal of the case. Pather, the case was

is

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Plaintiffs presented no controverting

expert testimony. Hence, Mr. Taylor's

opinion is conclusive proof of defendants'

at inves 2oe COncius > VEO JL GCLenaants

competent representation unless other

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the case. They argue it was defendants

11B

witnesses after Mr. Magyar's testimony was

stricken that resulted in the dismissal of

the case.

Defendants attached to their motion

for summary judgment most of the trial

transcript in the underlying action. Upon

reading the transcript, it is clear there

waS no point in calling further witnesses

-- even Mrs. Magyar -- after Mr. Magyar's

testimony was stricken. It was Mr. Magyar

alone who submitted the claims to and

communicated with the insurance company.

Thus, it was he alone who could testify to

the supporting documentation he submitted

for each claim and to the contents of his

communication with the insurance company.

Moreover, it is clear only Mr. Magyar could

have authenticated much of the documentary

evidence crucial to plaintiffs' success in

the underlying action. In other words, had

defendants called additional witnesses the

12B

underlying action might have been concluded

with a judgment in favor of the underlying

defendants rather than with a judgment of

dismissal, but the end result would have

been the same.

In short, it is unequivocally clear

that Mr. Magyar's conduct in the face of

repeated warnings from the trial judge did,

in the end, result in the dismissal of the

underlying action. Accordingly, there is no

evidence defendants breached their

professional duties in any manner, let

aione in a manner which proximately caused

plaintiffs' injury. It necessarily follows

that the trial court did not err in

granting summary judgment.

bf

Plaintiffs further contend the trial

court violated their right to due process

of law by directing defendants to move for

13B

summary judgment, predetermining the

outcome of the summary proceedings and

denying plaintiffs an early trial setting

date. We perceive no merit in the

contention.

Plaintiffs rely on the following

sequence of events as support for the

foregoing theory: On September 13, 1989,

the parties attended a status conference in

the instant action. At the conclusion of

the conference, the court ruled it would

hear defendants' motion for summary

judgment on December 11, 1989 and, if the

motion were denied, then would hold a

Status conference to determine whether to

send the matter to arbitration or to set a

trial date. On November 8, 1989, plaintiffs

requested the release of defendants’ work

product. On November 22, 1989, plaintiffs

moved for an early trial setting date.

Plaintiffs state the trial court failed to

14B

rule on these motions before the hearing on

the motion for summary judgment, but there

is nothing in the record indicating this is

the case. Neither is there any evidence the

trial court directed defendants to move for

Summary judgment.

Plaintiffs perceive in these events

ominous proof that the trial court had

predetermined the motion for summary

judgment. In their view, the failure to

rule on the motions -- a fact not

established by the record -- and the

court's intention to set a trial date only

if the motion were denied clearly indicate

the court had decided in advance to grant

the motion. Absolutely nothing in the

record -- apart from pure conjecture and

speculation -- supports that conclusion. If

anything, the trial court's pronouncement

of the procedure to be followed should the

motion for summary judgment be denied

15B

supports the contrary conclusion.

There is nothing inherently suspicious

in the trial court's willingness to

entertain a motion for summary judgment

before setting a trial date. The purpose of

the summary judgment procedure is to

penetrate the language of the pleadings and

ascertain whether a cause has any substance

in fact. (Chern v. Bank of America (1976)

15 Cal.3d 866, 873; Lucchesi v. Giannini §

Hence, if it appears it may be possible to

resolve a matter by summary judgment, it is

only sensible to delay setting a trial date

until such a motion has been heard.

In short, there is not a scintilla of

evidence in the instant record that the

trial court infringed upon any of

plaintiffs’ due process rights. Whether

plaintiffs were entitled to an early trial

date became moot once the trial court

16B

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18B

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J9FFICE OF THE CLERK

(OURT OF APPEAL

STATE OF CALIFORNIA

‘ORO ARIT ADDL rATLO mrerpT mn

Je LOND Al PELLATE Uiolnd A

. “pm KT IT CR ‘TrpY

ROBERT N. WILSON, LERK

TTtTTC Ty " foal A }

A AwWd iN ATI 1/ / |

7 RA -

Leo D. Magyar

an RY nA; —

400 N. Martel Avenue

a ~ - “* r, 2

Los Angeles, A 10036

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Thomas F. McAndrews, #120014

BAKER, SILBERBERG & KEENER

2850 Ocean Park Boulevard

Suite 300

Santa Monica, California 90405

Telephone: (213) 399-0900

Attorneys for Defendants

BENNET OLAN, ESQ.

LESTER FRIEDMAN, ESQ.

LINDA HORNER, ESQ.

CHARLES A. CORREIA, ESQ.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

LEO MAGYAR and MAGDALENA Case No.C603609

MAGYAR,

Plaintiffs, NOTICE OF RULING

vs.

BENNET OLAN, et al.,

)

)

)

)

)

)

)

)

)

Defendants. )

)

TO PLAINTIFFS LEO MAGYAR and MAGDALENA

MAGYAR, In Propria Persona:

The Motion of plaintiffs, Leo MAGYAR

and MAGDALENA MAGYAR, for Reconsideration

ID

of the Court's earlier ruling granting

summary judgement as to defendants, came on

for hearing on May 8, 1990 in Department

"18" of the above-entitled court before the

Honorable Eric Younger. Plaintiff, LEO

MAGYAR, appeared in Propria Persona.

Defendants appeared by way of counsel,

Thomas F. McAndrews, of the law firm of

Baker, Silberberg & Keener.

Reconsideration as well as defendant's

opposition thereto, and listening to oral

argument from plaintiff, the court ordered

as follows:

1) That plaintiffs' Motion for

Reconsideration be denied.

2) That defendants give notice.

DATED:

May

14,

1990

BAKER, SILBERBERG & KEENER

THOMAS F. MCANDREWS

Attorney for Defendants,

BENNET OLAN, ESQ.

LESTER FRIEDMAN, ESQ.

LINDA HORNER, ESQ.

CHARLES A. CORREIA, ESQ.

3D

APPENDIX E

ORDER GRANTING MOTION

FOR SUMMARY JUDGEMENT

AND JUDGEMENT

SUPERIOR COURT OF CALIFORNIA

MAGYAR V. OLAN (C603609)

DATED: JANUARY 5, 1990

BAKER, SILBERBERG & KEENER

2850 Ocean Park Boulevard

Suite 300

Santa Monica, California 90405

Telephone: (213) 399-0900

Attorneys for Defendants

BENNET OLAN, ESQ.

LESTER FRIEDMAN, ESQ.

LINDA HORNER, ESQ.

CHARLES A. CORREIA, ESQ.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

LEO MAGYAR and MAGDALENA ) Case No.C60360

MAGYAR, )

Plaintiffs, )ORDER GRANTING

)MOTION FOR

vs. ) SUMMARY

) JUDGEMENT AND

BENNET OLAN, et al., ) JUDGEMENT

)

Defendants. )

)

TO: PLAINTIFF, LEO MAGYAR, IN PROPRIA

PERSONA:

THE MOTION OF DEFENDANTS BENNET OLAN,

ESQ., LESTER FRIEDMAN, ESQ., LINDA HORNER,

ESQ., AND CHARLES A. CORREIA, ESQ. for

1E

i=

4

7

4

oP ers Foe.

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od

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DATED: JANUARY 5, 1990

JUDGE OF THE SUPERIOR COURT

3E

APPENDIX F

NOTICE OF RULING

WORDED AND SIGNED BY RESPONDENT

SUPERIOR COURT OF CALIFORNIA

MAGYAR V. OLAN (C603609)

DATED: DECEMBER 20, 1989

BAKER, SILBERBERG & KEENER

2850 Ocean Park Boulevard

Suite 300

Santa Monica, California 90405

Telephone: (213) 399-0900

Attorneys for Defendants

BENNET OLAN, ESQ.

LESTER FRIEDMAN, ESQ.

LINDA HORNER, ESQ.

CHARLES A. CORREIA, ESO.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

Case No.C603609

LEO MAGYAR and MAGDALENA

MAGYAR,

)

)

)

Plaintiffs, )NOTICE OF RULING

)

- vs. )

)

BENNET OLAN, et al.,

Defendants. )

TO: PLAINTIFFS, LEO MAGYAR and MAGDALENA

MAGYAR, In Propria Persona:

NOTICE IS HEREBY GIVEN that the Motion

for Summary Judgment of defendants, BENNET

OLAN, ESQ., LESTER FRIEDMAN, ESQ., LINDA

lF

HORNER, ESQ., and CHARLES CORREIA, ESQ.

came before the Honorable Eric Younger,

Judge presiding in Department 18 of the

above-entitled court located at 111 North

Hill Street, Los Angeles, California. Rick

D. Navarrette of the law firm of Baker,

Silberberg & Keener appeared on behalf of

defendants and moving parties. Plaintiff

Leo Magyar, appeared in propria persona.

After reviewing the papers submitted

in Support of the Motion, and entertaining

Oral argument, the Court granted defendants

Motion for Summary Judgment finding that

there was no triable issue of material fact

and defendants were entitled to judgment as

a matter of law. DATED: December 20, 1989

BAKER, SILBERBERG 6& KEENER

THOMAS F. MCANDREWS

Attorney for Defendants,

BENNET OLAN, ESQ.

LESTER FRIEDMAN, ESQ.

LINDA HORNER, ESQ.

CHARLES A. CORREIA, ESQ.

2F

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MALL, Meer L1G! © 7

BAKER, SILBERBERG & KEENER

2850 Ocean Park Boulevard

Suite 300

Santa Monica, California 90405

Telephone: (213) 399-0900

Attorneys for Defendants

BENNET OLAN, ESQ.

LESTER FRIEDMAN, ESQ.

LINDA HORNER, ESQ.

CHARLES A. CORREIA, ESQ.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

LEO MAGYAR and MAGDALENA Case No.C603609

MAGYAR,

Plaintiffs, NOTICE OF RULIN

BENNET OLAN, et al.,

)

)

)

)

)

vs. )

)

)

)

Defendants. )

)

TO: PLAINTIFFS, LEO MAGYAR and MAGDALENA

MAGYAR, In Propria Persona:

PLEASE TAKE NOTICE that on September

13, 1989, in Department 18 of the Los

Angeles Superior Court, Central District,

1G

the Honorable Judge Younger held a Status

Conference and ruled as follows:

1) That the date of December hie

1989 has been pre-cleared with the Court's

calendar to hear defendant's Motion for

Summary Judgement;

2) That on the aforementioned

hearing date of December 11, 1989, the

Court will also hold a Status Conference.

Judge Younger indicated that if defendants'

Motion is denied, that he will, at that

time, decide whether or not to send this

matter into arbitration or give this matter

a trial date;

3) Counsel for defendants, Olan &

Friedman, was requested to give notice of

the Court's rulings.DATED: 12/20/89

BAKER, SILBERBERG & KEENER

JOHN C. KELLY

Attorney for Defendants,

BENNET OLAN, ESQ.

LESTER ¢cRIEDMAN, ESQ.

LINDA HORNER, ESQ.

CHARLES A. CORREIA, ESQ.

2G