# Petition for Writ of Certiorari — Cullen v. Trainor > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1088%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1994 - **Citation:** 512 U.S. 1271 ## Text >) aati _— vont, ! Ss ! 93- 10): * ‘ = a No. eoeeeoeesec8ekee8e IN THE SUPREME COURT OF THE UNITED STATES October, 1992, Term MARK T. CULLEN PETITIONER vs. TRAINOR, ROBERTSON, SMITS & WADE, ET. AL., RESPONDENTS PETITION FOR REVIEW To The Supreme Court of the State of California PETITION FOR WRIT OF CERTIORARI MARK T. CULLEN P.O. Box 1215 Shingle Springs, CA 95682 (916) 933-3112 PETITIONER, IN PRO SE QUESTIONS PRESENTED FOR REVIEW A. Whether California’s statute of limitation for legal malpractice (Civil Code of Procedure §340.6) is unconstitutional as it violates due process since the statute is vague as to the meaning of “actual injury". B. Whether a partnership is a separate legal entity, and if so, should the appellate court differentiate a partnership cause of action from an individual cause of action as it relates to the statute of limitations for legal malpractice under Civil Code of Procedure §340.6. C. Whether petitioner has been denied due process and equal protection of the law since the lower courts have barred petitioner from bringing a cause of action for fraud against respondents. i TABLE OF CONTENTS OPINIONS BELOW ... + « «© «© «© «© © © « « 1 St de Cs a a a a 1 CONSTITUTIONAL PROVISIONS INVOLVED... 2 STATEMENT OF THE CASE . ..-. « « «© © «© « « 2 A. The underlying Housing Authority v. Cullen Claim... 3 B. The underlying legal malpractice and fraud claims by petitioner against respondents ..... .- 19 C. The Court of Appeal’s first decision in Cullen v. Trainor . 23 D. The Court of Appeal’s Second Decision in Cullen v. Trainor . 24 REASONS FOR GRANTING WRIT .. +. + «© « « « 26 I. II. CALIFORNIA’S STATUTE OF LIMITATION FOR LEGAL MALPRACTICE (CIVIL CODE OF PROCEDURE §340.6) IS UNCONSTITUTIONAL AS IT VIOLATES DUE PROCESS SINCE THE STATUTE IS VAGUE AS TO THE MEANING OF "ACTUAL INJURY" . . «© « «© «© «© «© « « 26 SINCE A PARTNERSHIP IS A SEPARATE LEGAL ENTITY THE APPELLATE COURT FAILED TO DIFFERENTIATE A PARTNERSHIP CAUSE OF ACTION FROM AN INDIVIDUAL CAUSE OF ACTION AS IT RELATES TO THE STATUTE OF LIMITATIONS FOR LEGAL MALPRACTICE UNDER C.C.P. §340.6 . « « « «© «© © © © © «© 37 ii III. PETITIONER HAS BEEN DENIED DUE PROCESS AND EQUAL PROTECTION OF THE LAW SINCE THE LOWER COURTS HAVE BARRED PETITIONER FROM BRINGING A CAUSE OF ACTION FOR FRAUD AGAINST RESPONDENTS .....-.« -« 50 CONCLUS ION es e . es es ° . - 7 a e es se « + 62 APPENDIX: A. DENIAL OF PETITION FOR REVIEW BY THE CALIFORNIA SUPREME COURT FILED MARCH 31, 1993 A-1 B. OPINION OF DENIAL OF PETITION FOR REHEARING BY THE COURT OF APPEAL, THIRD APPELLATE DISTRICT, FILED FEBRUARY 1, 1993 B-1 C. OPINION OF THE COURT OF APPEAL THIRD APPELLATE DISTRICT, FILED JANUARY 4, 1993 C-1 D. SECOND OPINION OF SACRAMENTO COUNTY SUPERIOR COURT FILED ON SEPTEMBER 27, 1991 D-1 E. FIRST OPINION OF SACRAMENTO COUNTY SUPERIOR COURT FILED ON JULY 16, 1991 E-1 F. DENIAL OF PETITION FOR REVIEW BY THE CALIFORNIA SUPREME COURT IN HOUSING AUTHORITY v. CULLEN FILED FEBRUARY 10, 1993 F-1 G. OPINION DENIAL OF REHEARING OF THE COURT OF APPEAL, THIRD APPELLATE DISTRICT, IN HOUSING AUTHORITY v. CULLEN, FILED DECEMBER 15, 1992 G-1 Wsacnsiimeiieimmiaei iliac i iii OPINION OF THE COURT OF APPEAL, THIRD APPELLATE DISTRICT, IN HOUSING v. CULLEN FILED NOVEMBER 20, 1992 F-1 SECOND OPINION OF SACRAMENTO COUNTY SUPERIOR COURT IN HOUSING AUTHORITY v. CULLEN, FILED APRIL 4, 1991 I-1 OPINION OF CALIFORNIA ADMINISTRATIVE LAW COURT FILED JULY 25, 1990 J-1 FIRST OPINION OF SACRAMENTO COUNTY SUPERIOR COURT IN HOUSING AUTHORITY v. CULLEN FILED JUNE 21, 1987 K-l iv TABLE OF AUTHORITIES CASES Alton v. Rogers (1954) 127 Cal. App.2d 667 55 Board of Regents v Roth, 408 US, at 570-571, n8, 33 L. Ed2d 548, 92 Ss ce 2701 s a . + se 7 - - s s * aoe 61 Clean Air Transport Systems v. San Mateo County Transit Dist. (1988) 198 Cal. App. 3d 576 o se 2 s . * o . = 44 Cox v. Delmas (1893) 99 C. 104 ...... 60 Epstein v. Frank (1981) 125 Cal.App.3d 111 40 Evans v. Galardi (1976) 16 Cal.3d 300... 41 Fazzi v. Peters (1968) 68 Cal.2d 590 ... 43 Finlayson v. Sanbrook (Nov. 1992, Sixth Dist.) 10 Cal. App. 4th 1436 . . 32 First Amendment Foundation v. Brookfield (1983, ND ILL) 575 F. Supp. 1207... 44 Giaccio v. Pennsylvania (1966) 382 U.S. 399, 402-403, 15 L ed 2d 447, 86 8 Ct 518 ....e 36 Hensley v. Caietti (Feb. 1993, Third Dist.) Bs Cal. App. 66H 1265 « «© «6 we ow we et se 3S Johnson v. Simonelli (1991) 231 Cal. App. 3d 105 s a * om o = © . . 22 Kimball v. Pacific Gas & Electric Company (3934) 220 C. 203 «se ase vnsse Knapp v. Knapp (1940) 15 Cal.2d 237... . 57 Vv Kovacevich v. McKinney & Wainwright (June 1993) 93 Daily Journal D.A.R. 6983 ° . 2 ° o e 7 * se . - . o 34 Laird v. Blacker (1992) 2 Cal.4éth 606 ..-«-. 27, 28, 31, 49, 63 Logan v. Zimmerman Brush Company (1982) 455 US 422, 433, 71 L.Ed2d 265, 102 Ss cet 1148 . * e s o e is 7 e * 35, 61 Lynch v. Glass (1975) 44 Cal. App.3d 948 . 30 People v. Sobiek (1973) 30 Cal.App.3d 458 . 42 Promotus Enterprises, Inc. v. Jiminez (1971) 21 Cal.App.3d 560 * - a eo e se - e se Safine v. Sinnot (May 1993, First Dist., Div. One) AS Cal. App. 408 GIE \. «© ws sw we woos SB Sirott v. Latts (May 1992) 6 Cal. App. 4th 923 o . J 7 7 e a _ * - 31 Stoll v. Superior Court (Sept. 1992, First Dist., Div. Five) 9 Cal.App.4th 1362 32 Turner v. American Bar Asso. (1975, DC Tex) 407 F. Supp. 451 *. . se es . * e e e es so 44 United States v. A. & P. Trucking Co. (1959) 358 U.S. 121, 79 S.Ct. 203, 3 L.Ed.2d 165 e es = 2 a * se . 7 s o e 39 Vann v. Shilleh (1975) 54 Cal. App.3d 192 . 44 CONSTITUTION United States Constitution Fifth Rmemament «ss es te tb eee ew ew ew Oy CST Ly ee a a vi United States Constitution Fourteenth Amendment . ° - © . ° * ° 7 . 7 ~ . 43 California Code of Civil Procedure § 170.6 a oe * * a . a * . e e e se J y California Civil Code of Procedure Section 338 ~ ” a - e - a a . es 38, 52 California Code of Civil Procedure §340.6 : + s 6 bo 6 Re Oe ate Bae aes. Ses. BO 37, 39, 49, 50, 62 California Code of Civil Procedure §579 . . 39 Corporations Code Section 15006 ..... . 38 California Government Code §§ 900 et. seq. ‘ie ow ee oe ee i a ee oe ee oe California Government Claims Act ..... 59 California Government Tort Claims Act ... 59 vii Ceepeer Zi 2« «© © 8 6 et ee ee elle le CUR Deering’s California Codes, annotated... 52 OTHER 1 Witkin, California Procedure, Attorneys, Section 95 at p- 113 e = e o a _ . - a s * 60 5 Witkin, Calif. Proc. 3d, Pleading §856 . 38 6 Witkin, Summary of Cal. Law (Oth ed. 1974 . «+ «ess esvesnves ec oS) 7 Witkens, (3rd ed.) Judgements Section 288 (c) .«..+«+«-+s«-e-+-ee-eee Sl 9 Witkins, California Procedure, Appeals, Section 49, page 74 .... +... 46 13 Cal Jur 3d, Constitutional Law §294, Se 7p : Se ee ee eee ee ee ee ee ee ee Bankruptcy Form 4... ..+ «+ .+-+«-+.«-«-« « 44 Bankruptcy Rule 2009(e) . .... +. +++ + 44 Blacks Law Dictionary, 5th Ed. 594 .... 52 Civil Procedure, 3rd ed. James, Hazard (1985) Pp. 477 s + a = J * - se * _ 7” 39 Entity and Aggregate Theories, §14, pp. 4264-4265 ...«+«-+«e2ee eee 41 meget. ow TOECM, GE32 «© «© we oe we sb we weseess 23 U.S. Code & Congressional and Administrative News 5, 95th Congress, 2nd Session 1978, page 6158 ...«-+«-e«-e«-e«e see ce « « « 45 1 OPINIONS BELOW The Supreme Court of California denied Petition for Review March 31, 1993. A copy is attached as Appendix A of Appendix. The Court of Appeal, Third Appellate District, Opinion on Denial of Petition For Rehearing was filed on February 1, 1993. A copy is attached as Appendix B of Appendix. The Court of Appeal, Third Appellate District, first Opinion was filed January 4, 1993. A copy is attached as Appendix C of Appendix. The second opinion of the Superior Court filed on September 27, 1991. A copy is attached as Appendix D of Appendix. The first opinion of the Superior Court filed on July 16, 1991. A copy is attached as Appendix E of Appendix. JURISDICTION This petition for writ of certiorari is taken from a decision rendered on March 31l, ay enn 2 1993, by the Supreme Court of California, a court of last resort, in the case styled MARK T. CULLEN v. TRAINOR, ROBERTSON, SMITS, & WADE, et. al., Case No. 8031216. This Court has jurisdiction pursuant to the provisions of 28 CONSTITUTIONAL PROVISIONS INVOLVED No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. Amend. XIV, §l. “No person shall be .. . deprived of . . - property, without due process of law;" U.S. Const. Amend. V. STATEMENT OF THE CASE The underlying action for legal malpractice 3 and fraud arose out of legal representation provided to Mark T. Cullen (hereinafter “petitioner"), and Cullen Development Company, a general partnership, by the law firm of Trainor, Robertson, Smits and Wade - and individual attorneys: Charles Trainor, Stuart Smits, William Davis, Dave Robertson, and Gary Funamura (hereinafter collectively referred to as "“respondents"). Due to the complexity of the underlying case wherein the legal malpractice and fraud were committed, petitioner, will first set forth a summary of the Housing Authority v. Cullen, et al. case. A. The underlying Housing Authority v. Cullen Claim.’ Cullen Development Company was a California General Partnership comprised of petitioner, . Petitioner has petitioned the Court for a WRIT OF CERTIORARI to review the underlying connected ousi Authority v. Cullen case, No. 92-1765. Pursuant to Rule 201 of the Federal Rules of Evidence, petitioner respectfully requests the Court take Judicial Notice of the above referenced case. nn [ee Richard Cullen, and James Cullen. The partnership was formed for the sole purpose of doing construction work. Petitioner was the managing and qualifying partner with the California State Contractors License Board. Additionally, petitioner was responsible for providing all of the financial backing for the partnership, whereas, Richard Cullen and James Cullen provided onsite field work. In 1984, Cullen Development Company entered into four Public Works Construction Contracts with the Housing’ Authority, County of Sacramento. Late that year, problems and disputes developed between the Housing Authority and Cullen Development Company. On or about April 22, 1985, Cullen Development Company filed a Cessation of Work Notice on all four contracts and stopped any, and all, further work with the Housing Authority.’ . A detailed discussion of the dispute between the Housing Authority and petitioner may be found in Administrative Law Judge Smith’s decision. (Appendix J) Pursuant to Rule 201 of the Federal Rules of Evidence, petitioner respectfully requests that the Court take Judicial Notice of the above- 5 Thereafter, the Housing Authority sued Cullen Development Company, a general partnership, and petitioner individually, for breach of Contract on the Rio Linda Project and filed four complaints with the California State Contractors License Board. On or about September of 1985, Cullen Development Company, as_a artnership, and petitioner, as an individual, employed respondents to represent petitioner and Cullen Development Company throughout the litigation, including the filing of four Cross-Complaints as to the four contracts. On October 25, 1985, respondents filed a Demurrer to the Housing Authority First Amended Complaint, which was overruled by the court, and an Answer was ordered to be filed. Thereafter, on December 9, 1985, respondents filed an Answer to the First Amended Complaint. For reasons unknown to petitioner, respondents took no further actions for almost 14 months. referenced decision. 6 On February 5, 1987, respondents entered into a stipulation (without petitioner’s knowledge or approval) with Housing Authority attorney Bleier for the filing of a single cause of action Cross-Complaint on only one contract, the Rio Linda Contract, just thirteen days before the February 18, 1987 scheduled trial date. On February 6, 1987, twelve (12) days before the scheduled trial date, respondents made a Motion to Amend the Trial Setting Order and to allow for further Law and Motion. This was a direct result of respondents’s complete failure to prepare for trial. As an example of how reprehensible and inadequate respondents’s legal representation was, see Declaration of respondents (dated February 6, 1987).?’ The 3 Declaration of Cullen Attorney Davis [Trainor], in pertinent part: "8. Defendants [Cullens] timely propounded a request for Production of Documents on Plaintiff’s [Housing Authority] Counsel. To date defendant’s counsel has not reviewed said records. At no point in time did plaintiff’s counsel represent that said documents could not be removed after the discovery cut-off date. In order to adequately prepare this matter for trial, it is necessary that these documents be 7 trial court denied said request by respondents. The bottom line is, that respondents were faced with going to trial on February 18, 1987, without any pre-trial preparation or discovery. On February 24, 1987, respondents sent petitioner a letter stating that the trial date had been rescheduled to June 16, 1987. On June 3, 1987, just thirteen days before the second scheduled trial date of June 16, 1987, respondents abandoned legal representation of the partnership, Cullen Development Company, and individual petitioner. Not only were the individual partners forced to represent themselves, In Pro Se, but the partnership itself was forced into, In Pro Se. Respondents reviewed. 9. In addition, Defendant’s counsel had no idea that Plaintiff’s counsel would be objecting to the discovery cut-off date, given the fact that Plaintiff was agreeing to stipulate to the filing of a Cross-Complain within thirty (30) days of trial, and giving th fact that the Cross-Defendants will be answering the Cross-Complaint by February 10, 1987. 10. In order to adequately prepare this matter for trial, it will be necessary to depose approximately eight (8) to ten (10) witnesses prior to trial. ll. The above-stated discovery can be completed without jeopardizing the case from going to trial on February 18, 1987..." 8 made no explanation to the court as to who was going to represent the partnership. The purpose of said substitution of legal representation by respondents, was a last effort delay tactic by respondents to continue the June 16, 1987, trial date. At this time petitioner was not aware that respondents had completely failed to prepare petitioner’s case for trial. On June 8, 1987, respondents called petitioner, who was residing in Arizona, stating that the court would require a Declaration from petitioner in order to hear a Motion to Continue the scheduled trial date. Respondents dictated the contents of said Motion (dated June 8, 1987) that respondents requested. Two critical statements in the Declaration were that petitioner allegedly owed respondents legal fees, and that, petitioner desired to be placed, In Pro Se. Each of these statements were fabricated by respondents in order to delay the pending trial date. At the time of this Declaration, 9 respondents knew that the firm was paid in full, with extra monies still on retainer. Then respondents drafted the Motion to Continue the June i6, 1987, trial date and on June 11, 1987, respondents made a Special Appearance on petitioner’s behalf, anticipating that the Motion would be granted, but the court denied said Continuance. On the morning of June 16, 1987, petitioner continued the morning trial by -making a California Civil Code of Procedure §170.6 Motion to recuse the first assigned judge from the case. The case was then trailed to an afternoon hearing on the same date. Shortly thereafter on the advise of respondents, petitioner as an individual, filed a voluntary Chapter II Bankruptcy Petition with the Federal Bankruptcy Court (Eastern Dist.) before appearing at the afternoon trial on June 16, 1987. The sole purpose of petitioner’s Chapter II filing was to initiate the automatic stay of 10 litigation of the Housing Authority case. Petitioner, thought, and was led to believe by respondents, that the filing of the Chapter II Petition would stay the Housing Authority trial as it related to petitioner and Cullen Development Company. Petitioner attended the trial, on the afternoon of June 16, 1987, for the sole purpose of having the Federal Bankruptcy Automatic Stay Petition read into the court record. Judge Morris promptly ordered the Petition into the record.‘ On June 16, 1987, before the trial against unrepresented, individual and partner James Cullen commenced, James Cullen stated he would voluntarily default as he was not prepared, nor capable of representing himself, much less the partnership Cullen Development Company. Petitioner did not actively participate in the trial of June 16, 1987, as it related to unrepresented Cullen Development Company and/or ¢ Mark Cullen presented a copy of his Bankruptcy Petition filed on June 16, 1987. The court thereafter ordered no further action be taken against Mark Cullen. ee 11 himself. Petitioner did request to help translate a few times for James Cullen who suffers from a reading and speech impediment.° On June 16, 1987, after an approximately 15 minute trial, Judge Morris entered a Judgment against James Cullen and Cullen Development Company.*° However, the trial judge made very clear that the judgment rendered was to have no effect on Mark T. Cullen.’ S“MARK CULLEN: Your Honor, my brother has a little speech problem; do you mind if I speak for him? THE COURT: Well let me determine to what extent you have this speech problem. Mr. James Cullen, have you understood all we have said here? MR. JAMES CULLEN: Not really. It’s all above my head this level deal.” THE COURT: After Mr. Cullen has had a chance to examine the document. MR. JAMES CULLEN: Can I get this read to me? My reading is real bad. . This judgment is set forth in Appendix K. Pursuant to Rule 201 of the Federal Rules of Evidence, petitioner respectfully requests the Court take Judicial Notice of the above-referenced judgment. “MR. MARK CULLEN: Your Honor, I wouldn’t agree that it was against me if I am still a part. THE COURT: James Cullen and Cullen Development Company. MR. MARK CULLEN: I’d like the record to state that clearly. THE COURT: This record states that, ..." 12 On April 20, 1988, the California State Contractors License Board caused the California State Attorney General to file an Accusation against Cullen Development Company, and the three individual partners, under’ various provisions of the California Business and Professions Code. On May 16, 1988, petitioner and Cullen Development Company filed a General Denial to the Contractors State License Board Accusation. The Contractors State License Board Complaint was litigated, in a Judicial Trial Format, for eight days in 1989. The Contractors State License Board was represented by Deputy Attorney General June Long, and petitioner represented the partnership and himself, In Pro Se. Testimony was presented by more that eighteen witnesses and over 425 evidentiary documents were entered into evidence. The Administrative Law decision found, inter alia, that the Housing Authority breached the Rio Linda Contract, that the Housing Authority breached five Implied 13 Covenants, that the Housing Authority committed Negligent Misrepresentation, and that the Hous Aut it committed Fraud in Labor Compliance. On July 25, 1990, the Registrar of Contractors, David R. Phillips, accepted Administrative Law Judge Smith’s decision as a Final Judgment. (See Appendix J) No appeal was taken by either party. Therefore, after 30 days it became a final order of the court.*® It is important to note that this was the first decision as it relates to petitioner on either the complaint or cross-complaint. On August 14, 1990, petitioner filed a Motion for Leave to File an Amended Cross- Complaint (in the Housing Authority v. Cullen case), accompanied by a Memorandum of Points and Authorities in support thereof, in an effort to ’ “The decision became effective 30 days after it was mailed to the respondent [Cullen}] unless a reconsideration is ordered within that time ...." Government Code, Title 2 Div. 2, §11519 (a). Pursuant to Rule 201 of the Federal Rules of Evidence, petitioner respectfully requests that the court take Judicial Notice of the above- referenced decision. eee 14 remedy the negligent and fraudulent conduct of respondents. On August 30, i990, the Housing Authority filed an Opposition to petitioner’s Motion. Petitioner filed a Reply on September 4, 1990. On September 7, 1990, Superior Court Judge Gray denied petitioner’s Motion for Leave to File an Amended Cross-Complaint, on grounds of the court’s discretion. Judge Gray referred to the prior stipulation that was entered by the Cullen attorneys.’ This was the first time that individual petitioner suffered actual injury as it relates to California’s Legal Malpractice Statute (Civil 9 “THE COURT: Well, Mr. Campbell, among other reasons for exercising discretion against allowing the amendment was the fact that it was carefully stated in your moving papers how the decision not to add this cross-complaint or to litigate this matter was a tactical decision that was made by the parties. And having made that tactical decision, I think the parties should live with it. MR. CAMPBELL: Yes, your Honor. The stipulation that was entered at a time just a matter of days before the first trial date. ..." After argument by petitioner the court further stated: “THE COURT: I’m saying that you’ve made your bed and you can lie in it.” 15 Code of Procedure §340.6). On September 19, 1990, respondents sent petitioner a letter referencing a_ recent Sacramento Bee newspaper article wherein petitioner’s favorable Administrative Law decision was written about. Respondents offered to provide legal services to petitioner in the upcoming trial.*® On September 26, 1990, the Housing Authority filed a Motion for Summary Judgement on petitioner’s individual remaining Cross- Complaint on the Rio Linda Contract. Petitioner filed an Opposition to the Motion for Summary Judgment on October 16, 1990. The Housing Authority filed a Reply to petitioner’s Opposition on October 25, 1990. Thereafter, on October 30, 1990, Judge Gray granted Summary ” In pertinent part: “I know you must be very happy to have turned the tide and to accomplish this first large step in vindicating the rights of you personally and Cullen Development Company. The article indicated that you have a November trial date with Mr. Bleier. If you are still in pro per in that litigation, I would be pleased to respond to any inquiries you might have with respect to appropriate litigation strategy.” 16 Judgment against individual petitioner. The result of this judgment was that petitioner’s remaining Cross-Complaint against the Housing Authority was finally dismissed. Soon thereafter, a trial date was scheduled for February 11, 1991, for the Housing Authority’s remaining Complaint against individual petitioner on the Rio Linda Contract. The trial began February 11, 1991. One and one-half days into trial, Judge Morris made a ruling on a Motion in Limine (presented by Housing Authority Attorney Campbell), wherein petitioner was disallowed the opportunity to allege his affirmative defenses against the Housing Authority. In effect, petitioner was finally denied the right to have the Housing Authority v. Cullen case tried by the Superior Court in an actual trial format.” Before concluding the trial, Judge Morris took under consideration petitioner’s Oral Motion that the “ Petitioner was procedurally barred from presenting his case-in-chief. Further, petitioner was barred from the opportunity to even present a defense. en GAA : 17 prior Administrative Law Judgement should have a Collateral Estoppel effect on the Housing Authority’s complaint against individual petitioner. Judge Morris ruled for both the Housing Authority and petitioner to present Post Trial Briefs arguing the issue. On April 4, 1991, Judge Morris ruled on the Collateral Estoppel Issue in favor of the Housing Authority. On April 4, 1991, the Housing Authority’s individual judgment against petitioner was filed into the record. Appendix I of Appendix. On May 29, 1991, petitioner filed an Appeal in the Housing Authority v. Cullen, et.al., case. Third District Court of Appeals: 3 Civil No. C011217. On November 20, 1992, Honorable Justice Davis, with the Third District Court of Appeals, rendered a 22 page decision, on the one hand, affirming petitioner’s denial of a "trial on the merits" in the underlying Superior Court action. But on the other hand, Justice Davis stated: 18 “Indeed, in light of the findings of the CSLB’s administrative law judge, this is not a case where the result bespeaks “justice” in an abstract sense since SCHA is being permitted to recover from a breach occasioned by its own obstructionist bureaucratic conduct." (See Appendix H, pp. H-31-B32)? The resultant effect of the Housing Authority case is as follows: petitioner has lost in excess of 2.7 Million dollars (1985 value) and has incurred judgements against him in excess of $2 Million by certain sureties and others. In addition the petitioner has incurred a judgment, of $367,000 in favor of the Housing Authority, against petitioner for Breach of Contract while at the same time the Appellate Court states, it believes the Housing Authority breached the contract. Administrative Law Judge Smith (after 18 days of trial, over 18 witnesses, and in excess of 425 documentary exhibits) found in his decision, that the Housing Authority breached the Rio Linda Contract. (Appendix J) ad Appendix H of appendix. Pursuant to Rule 201 of the Federal Rules of Evidence, petitioner respectfully requests the Court to take Judicial Notice of the above-referenced decision. 19 Succinctly stated, petitioner has been denied the opportunity to present his evidence, or a defense, in the trial court and a judgment has been rendered against him. While at the same time, the facts of the case have proven that the Housing Authority was at fault. B. The underlying legal malpractice and fraud claims by petitioner against respondents. On April 29, 1991, petitioner and Cullen Development, a general partnership, filed a Complaint for Damages for Legal Malpractice, and Fraud, against the Law Offices of Trainor, Robertson, Smits & Wade, and Charles Trainor, Stuart Smits, William Davis, Dave Robertson, and Gary Funarmura, individually. Respondents employed attorney Henry Crowle to represent the law firm and each of them individually. On May 30, 1991, respondents filed a Demurrer to the Complaint. The Demurrer Hearing was set for July 2, 1991. On June 25, 1991, petitioner filed a Notice of Opposition to Demurrer; Points and Authorities in Support Thereof; Declaration 20 of Mark T. Cullen; and Judicial Notice in Support Thereof. On June 27, 1991, respondents requested ex- parte, and were granted an Extension of Time to file a Reply to petitioner’s Opposition to Demurrer. Thereafter, on June 28, 1991, respondents filed a Notice of Change of Hearing Date. On July 9, 1991, respondents filed a Reply to petitioner’s Opposition to Demurrer. The First Demurer by the Trial Court in Cullen _v. Trainor was, again, considered by Judge Gray. On July 10, 1991, Judge Gray made the following Tentative Ruling: "22. CULLEN DEVELOPMENT CO. V. TRAINOR, ROBERTSON, ETC. Demurrer to complaint of Cullen Development Company sustained without leave to amend. Demurrer to third count (breach of contract) sustained for failure to state whether the alleged contract is oral or written. Demurrer to lst, 2d, and 4th counts sustained with leave to amend based w1 the statutes of limitations. 10 says to amend, 10 days thereafter to respond." On July 11, 1991, Judge Gray ordered his hd s i : ghia Ua vale hace 21 Tentative Ruling accepted. Thereafter, on July 16, 1991, the Order was Noticed and filed.’ Next, on July 29, 1991, petitioner filed a First Amended Complaint for Damages for Legal Malpractice. On July 22, 1991 (Filed August l, 1991), petitioner mailed Judge Gray a letter, bringing to the court’s attention a conflict between the Court’s Tentative Ruling and the Order Filed." Then, on July 31, 1991, petitioner sent a confirming letter to the court (confirming a telephone conversation between the Bailiff and petitioner) wherein the Bailiff stated Judge Gray recognized the conflict and that the Filed Order would prevail. Next, on August 6, 1991, petitioner and respondents stipulated to allow petitioner to File a Further Amended First Amended Complaint. The ‘ See Appendix E of appendix. Pursuant to Rule 201 of the Federal Rules of Evidence, petitioner respectfully requests the Court take Judicial Notice of the above-referenced case. 14 The tentative ruling barred petitioner from filing a cause of action based on breach of contract. The Final Order granted petitioner the opportunity to refile a cause of action based on breach of contract. 22 Stipulation was so Ordered by the Court. On August 15, i991, petitioner filed his Further Amended First Amended Complaint for Damages for Legal Malpractice and fraud. Thereafter, on August 27, 1991, respondents filed a Notice of Demurrer, and other supporting documents. Then, on September 16, 1991, petitioner filed a Notice of Opposition to Demurrer and supporting documents. On September 20, 1991, respondents filed a Reply Memorandum of Points and Authorities in Support of Demurrer. The second Demurrer by the trial court in Cullen v. Trainor was also considered by Judge Gray. On September 24, 1991, Judge Gray made a Tentative Ruling sustaining respondents’ demurrer.’* Petitioner requested a hearing on the tentative ruling and one was calendared for the next morning. Thereafter, on September 24, a “This matter argued by counsel and submitted. Demurrer sustained without leave to amend for failure to state a cause of action. The statute of limitations has expired. Johnson v. Simonelli 1991 231 Cal. App. 3d 105” 23 1991, petitioner and respondents submitted Oral Argument to the court. Judge Gray affirmed his Tentative Ruling. Then, on September 27, 1991, an Order and Judgment of Dismissal Re: Demurrer, was filed.*® On November 20, 1991, petitioner filed a Notice of Appeal. Cc. The Court of Appeal’s first decision in Cullen v. Trainor. The appellate court’s first decision affirmed the trial court’s judgment of dismissal against petitioner. See Appendix C. The opinion held, as to the commencement of the statute of limitations for Legal Malpractice: "We will conclude that’ the statute of limitations began on the date the judgment in the underlying action was entered against’ the partnership of which Cullen was a member, October 13, 1987, for that is the date upon which he _ suffered injury to his interests." Appendix C, p 2? - See Appendix D of appendix. a Although the trial was held June 16, 1987, the judgment was not correctly filed until October 13, 1987. 24 Secondly, as to the commencement of the statute of limitations for Actual Fraud: "We also will conclude that the limitations period was not tolled by reason of an alleged fraud in the nondisclosure of defendants’ failure to meet the claim statute, an alleged predicate to success on the cross- complaint brought in the Housing Authority action, because such a fraud was not the legal cause of the injury sustained." Appendix C p. 2 In rebuttal to this decision, petitioner petitioned the appellate court for rehearing on the following grounds: One, the appellate Court’s opinion failed to differentiate between a partnership cause of action for legal malpractice and an individual cause of action for legal malpractice. Secondly, the opinion failed to address the three other projects, whereupon, the respondents also committed actual fraud in respondents’ concealment of their failure to file claims under the Government Claims Act. D. The Court of Appeal’s Second Decision in Cullen v. Trainor. The appellate court stated: "His sole noteworthy complaint is that the opinion’s. principal theory of resolution of his fraud claim does not squarely extend to part of his case. While the point has arguable merit, the underlying claim has no merit for reasons that closely parallel those given in the Te ; : 4 Supreme Court to review the Cullen v. Trainor, 31, 25 opinion." (Appendix B, p. 1-2) Then the appellate court stated: "Cullen knew in 1987 that the cross-complaint prepared by defendants did not put in issue the other three contract causes of action. He took no action to pursue these causes until 1990. Assuming for the sake of discussion that defendants concealed a failure to file government tort claims concerning these contracts, no harm to Cullen can be attributed to this delict." (Appendix B, p. 4) Further the appellate court held: "“Defendants’ failure to disclose that they had not filed government tort claims did not prevent Cullen from pursuing these causes of action on a theory sounding in contract. Having slept on his rights sounding in contract, if any, to recover from the Housing Authority for the breach of these three contracts, Cullen cannot recover from his’ former counsel for failing to perfect a potential alternative remedy, for the reasons given. The petition for rehearing is denied." (Appendix B, pp- 5) Petitioner, petitioned the California et al. case and that request was denied on March 1993. See Appendix A of appendix. 26 REASONS FOR GRANTING WRIT I. CALIFORNIA’S STATUTE OF LIMITATION FOR LEGAL MALPRACTICE (CIVIL CODE OF PROCEDURE §340.6) IS UNCONSTITUTIONAL AS IT VIOLATES DUE PROCESS SINCE THE STATUTE IS VAGUE AS TO THE MEANING OF ACTUAL INJURY. The statute of limitations for legal malpractice in California may be found in West’s Annotated Civil Code of Procedure Section 340.6: (a) An action against an attorney for a wrongful act or omission, other than for. actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discover, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, whichever occurs first. In no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist: (1) The plaintiff has not sustained actual injury; (2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred; (3) The attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney, Te ed ina iad 27 except that this subdivision shall toll only the four year limitation; and (4) The plaintiff is under a legal or physical disability which restricts the plaintiff’s ability to commence legal action. (b) In an action based upon an instrument in writing, the effective date of which depends upon some act or event of the future, the period of limitations provided for by this section shall commence to run upon the occurrence of such act or event. The meaning of the words “Actual Injury" has been the subject of multiple interpretations as a result of numerous lawsuits preceding California’s landmark case of Laird v. Blacker (1992) 2 Cal.4th 606. In the Laird case, the California Supreme Court held: "We conclude the limitations period of section 340.6 commences when a client suffers an adverse judgment or order of dismissal in the underlying action on which the malpractice action is based." Id. p. 609. It seems clear from C.C.P. §340.6, and its Laird case interpretation, that in order for the statute of limitations for legal malpractice to commence running, (1) the client must discover 28 the malpractice, and (2) also suffer “actual injury" from the malpractice. It took the California Supreme court, in the Laird case, 16 pages to explain the meaning of two words: "actual injury". The meaning is still not clear and has resulted in numerous lawsuits since the Laird decision. "It is a general principle of statutory law that a statute must be definite and certain to be valid. A statute that either forbids or requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess at the meaning of the statute, and differ as to its application violates the first essential of due process of law." 13 Cal Jur 3d, Constitutional Law §294, p. 733 In his dissent to the Laird case, Justice Mosk stated: "The majority err in declaring (maj. opn,. ante, p.620) that section 340.6 is “clear on its face." A statute that is clear on its face does not require a lengthy opinion to expound its meaning, nor does it generate the varying interpretations seen in the case law. On the contrary, the phrase “actual injury" in section 340.6 is not self- explanatory, as noted by the State Bar in a prescient letter to the Governor. (Letter of Edward Rubin, ’ 4 7 4 A i 29 Pres. of State Bar, Sept. 13, 1977, warning that the phrase was ambiguous and would lead to litigation.)" Id. p. 621 “Actual injury" has been held to be an adverse order, as compared to aée final adjudication of a matter. Unfortunately, what is not clear is, at what point in the litigation do we start counting the adverse order? For example, is it the denial of a motion? A demurrer? A summary judgment motion? An order to compel? And so forth. In petitioner’s underlying Housing Authority case, the first adverse order, against petitioner, was on September 7 990. Notwithstanding that, the lower courts have refused to recognize that date. A judgment was entered against’ the partnership entity, Cullen Development Company on June 16, 1987, although petitioner has petitioned this Court in case No. 92-1765, that the judgment should be void, ab initio. For argument sake, if the judgment is upheld on appeal, petitioner did not expect to 30 be bound by the June 16, 1987, judgment. In fact, to be sure he wasn’t, petitioner asked the trial judge at the end of the hearing if the judgment would have any effect on petitioner and the trial judge clearly stated that it would not. (See Footnotes 4 and 7, supra) Appellate Justice Davis, made this same conclusion in the Housing Authority first appellate decision: "No action was taken against Mark T. Cullen on the complaint or on the cross- complaint." Appendix H, p. 8 In the underlying Housing Authority case, James Cullen could not adequately represent himself, much less the partnership entity and petitioner. Petitioner therefore, did not receive his due process protection guaranteed under the constitution. “Nevertheless, due process requirements must be met. The non party must have had an identity or community of interest with, and adequate representation by, the losing party in the first action; and the circumstances must have been such that the nonparty expected to be bound by the prior adjudication." Lynch v. Glass (1975) 44 Cal. App.3d ? Neti t iene age iaioe eae Pes | ev DE aC PEE iets 1 ARG Doe 31 948. (7 Witkens, (3rd ed.) Judgements Section 288 (c)). In the underlying Trainor case, the Housing Authority judgment against the partnership entity, has been used by the trial court to commence the statute of limitations for legal malpractice as to petitioner’s individual ciaim. Neither CCP §340.6 nor the Laird case infer that a judgment against one individual [Cullen Development Company] can be used to commence the statute of limitations against another individual [petitioner]. Either the lower courts have misapplied the malpractice statute or given the statute interpretation beyond the plain meaning of the words. Subsequent to the Laird case, just as Justice Mosk predicted, several lower courts have interpreted the meaning of “actual injury" in a variety of ways: In Sirott v. Latts (May 1992) 6 Cal. App. 4th 923, a case which involved a retiring doctor whom, it appears, received bad legal advise in regards to the purchasing of "tail" insurance 32 for medical malpractice, the court held: “Any appreciable and actual harm flowing from the attorney’s negligent conduct establishes a cause of action upon which the client may sue. [{] Indeed, once having discovered his attorney’s negligence and having suffered some damage, the client must institute his action within the time prescribed..." Id. p. 930 In Stoll _v. Superior Court (Sept. 1992, First Dist., Div. Five) 9 Cal.App.4th 1362, a case which involved a rather unique approach by plaintiff to extend the time to commence his suit against defendants by using a "fiduciary duty" attack, the court held: "the action is time barred, since the corporation had knowledge of facts constituting the cause of action more than one year before filing the action, . .. " Id. p. 1362 | In Finlayson v. Sanbrook (Nov. 1992, Sixth Dist.) 10 Cal. App. 4th 1436, a case which involved an action wherein the defendant attorneys missed a statute of limitations in an _underlying case, the court held: a ee that the one-year limitations period of Code Civ. Proc., §340.6, commences when the 33 statute of limitations for’ the underlying cause of action expires in 4 casege of attorney malpractice ; predicated on missing a statute of i limitations. The fact of damage is apparent when a right or remedy is lost due to an attorney’s failure to file within a statutory limitation. Plaintiff’s attempts to "remedy" some of the harm by filing a third party action did not delay accrual of the statute of limitations, the court held, since once plaintiff’s right was lost, he was damaged even though the amount of his damages had not been ascertained. The focus of the statute of limitations for legal malpractice should be on discovery of the fact of damage, not the amount." Id. p. 1346 In Hensley v. Caietti (Feb. 1993, Third Dist.) 13 Cal. App. 4th 1165, a case which involved client dissatisfaction with a marital settlement agreement, the court held: ". «.« «»« that the trial court properly concluded that plaintiff suffered actual injury on the date of entry into the marital settlement agreement, even though some or all of the provisions were to be subsequently incorporated in a judgment." Id. p. 1165 In Safine v. Sinnot (May 1993, First Dist., Div. One) 15 Cal. App. 4th 614, a case which involved an attorney suing his client over legal : 3 A 3 34 fees and a subsequent cross-claim by the client for malpractice, the court held: "., . . that the claim for attorney malpractice based on an erroneous amount in a judgment payable by plaintiff was barred by the statute of limitations (Code Civ. Proc., §340.6). The limitations period was not tolled until the date when the corrected judgment was reversed on appeal; that an appeal has been taken does not alter that fact that an adverse judgment injured the client." In Kovacevich v. McKinney & Wainwright (June 1993) 93 Daily Journal D.A.R. 6983, a case which involved a group of attorneys, and others, hoodwinking a farmer into guaranteeing a line of credit for a proposed private bank that failed, the court held: "Under section 340.6, the one- year statute of limitations for legal malpractice does not begin to run until a plaintiff knows of the attorney’s negligence and sustains actual and appreciable harm. [Footnote omitted]" Id. p. 6983 Neither petitioner nor other plaintiffs, in legal malpractice actions, can receive due process of law under a statute that is not clear as to its meaning. As Civil Code of Procedure 3 $ ~ 8 é £ a . a 35 §340.6 has shown, as reported in case after case, the courts have been free to interpret the meaning (ie., legislate the law). This type of adjudicating is not fair and equal protection of the law as constitutionally guaranteed. In fact, one could justifiably take the position that there is an underlying agenda to protect attorneys, from liability, notwithstanding the fact they have committed legal malpractice. The Court has not sanctioned the denial of due process of law. As this Court has stated: "As our decisions have emphasized time and again, the Due Process Clause grants the aggrieved party the opportunity to present his case and have its merits fairly judged. Thus it has become a truism the “some form of hearing" is required before the owner is finally deprived of a protected property interest. Board of Regents v Roth, 408 US, at 570-571, n8, 33 L. Ed2d 548, 92 S Ct 2701 (emphasis in original)." Logan v. Zimmerman Brush Company (1982) 455 US 422, 433, 71 L.Ed2d 265, 102 S Ct 1148. "The Court traditionally has held that the Due Process Clauses protect civil litigants who seek recourse in the courts, either as defendants hoping to protect their property or as plaintiffs attempting 36 to redress grievances. Id. p. 429 In the Logan case, Justice Powell, with whom Justice Renquist joins, concurring in the judgment, stated: "It is necessary for this Court to decide cases during almost every Term on due process and equal protection grounds. Our opinion in these areas are often criticized, with justice, as lacking consistency and clarity. Because these issues arise in various’ settings, and opinions are written by each of nine Justices, consistency of language is an ideal unlikely to be achieved." Id. p. 443 Fn. Any statute should be written clearly, concisely, and be able to withstand scrutiny as to whether it violates "due process" under the United States Constitution. A statute violates due process "if it is so vague and standardless that is leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case. [Citations.]" Giaccio Vv. Pennsylvania (1966) 382 U.S. 399, 402-403, 15 L ed 2d 447, 86 S Ct 518 Petitioner respectfully requests that the Court grant review of this case to decide if wer Abit EL aig SIO | % i 37 California Civil Code of Procedure §340.6 is unconstitutionally vague. II. SINCE A PARTNERSHIP IS A SEPARATE LEGAL ENTITY THE APPELLATE COURT FAILED TO DIFFERENTIATE A PARTNERSHIP CAUSE OF ACTION FROM AN INDIVIDUAL CAUSE OF ACTION AS IT RELATES TO THE STATUTE OF LIMITATIONS FOR LEGAL MALPRACTICE UNDER C.C.P. §340.6. The trial court is a state actor, and is mandated to enforce the constitutional rights of each individual (including petitioner) that are guaranteed under the United States Constitution and a state Constitution. Trial courts must afford petitioner, as well as a partnership legal entity, the constitutional safeguards of the due process clauses of the Fourteenth and Fifth Amendments, as well as Equal Protection of the laws under the Fourteenth Amendment. A partnership, like a corporation, is a separate legal entity. As such, a partnership, like a corporation, can incur a judgment, separate from an individual member partner. 38 Partnerships are defined under California Corporations Code Section 15006: (1) A partnership is an association of two or more persons to Carry on as co-owners a business for profit. California Code of Civil Procedure Section 388, in pertinent part states: (a) Any partnership or unincorporated association, whether organized for profit or not, may sue and be sued in the name which it has assumed or by which it is known. There is no question that the law, and case history, over the years regarding partnerships is contradictory and sometimes’ confusing. Justice Blease’s opinion (Appendix C), twice mentions the exceptional recognition of a partnership “entity” theory, but goes on to hold that a partnership is really not _a_ separate legal entity. The appellate court, clearly erred finding that petitioner’s individual interests were the same as his partnership interests. Petitioner asserts that a partnership (i.e., an individual) and an individual [Petitioner] can each be a real party in interest. (See generally 5 Witkin, Calif. Proc. 1 i Ay AND lsat Lak aa ABT i 39 3d, Pleading §856, p. 299, C.C.P. §579) As such, “Since different individuals suffering personal injury obviously have separate legal rights, it followed that any such claimant had a separate cause of action that did not effect \ another claimant." Civil Procedure, 3rd ed. James, Hazard (1985) p. 477. In support of petitioner’s legal conclusion, this Court has taken the opportunity, in a criminal case, to previously set forth guidance on this issue. In the United States v. A. & P. Trucking Co. (1959) 358 U.S. 121, 79 S.Ct. 203, 3 L.Ed.2d 165, this Court held: " ,. . ethat a partnership can violate each of the statutes here in question quite apart from’ the participation and knowledge of the partners as_ individuals. The corollary is, of course, that the conviction of a partnership cannot be used to punish the individual partners, who might be completely free from personal guilt. As in the case of corporations, the conviction of the entity can lead only to a fine levied on the firms assets." In the Trucking Co. case, two partnerships 40 were charged as_— entities, in separate informations with violations of 18 U.S.C. §835, 18 U.S.C.A. §835, which makes it criminal knowingly to violate Interstate Commerce Commission regulations for the safe transportation in interstate commerce of “explosives and other dangerous articles." The District Court dismissed, on motion, the informations on the ground that .a partnership entity cannot be guilty of violating the statutes involved. The Court found that partnerships are entities and that judgments, or fines, can be rendered against these entities separate from the individual partners. California case law and public policy, lend support to the emerging position that a partnership is a separate legal entity. In Epstein _v. Frank (1981) 125 Cal.App.3d 111, held: ", »« « a limited partnership is regarded an entity separate and apart from its partners when it is sued, when it is served with process, and when executing upon its assets. We can perceive of: no compelling reason he ee ee TOR ENG GeMa ey ee ee he ee eee MO, Pete: jFiat aNne, SD. ata lb Sala! 68 tno et 41 why, in determining the applicability of Code of Civil Procedure section 351, it should not be regarded as an entity, which, like a corporation, is considered ..." Id. p. 120 The Epstein case goes on further to state: “A partnership, however, is not always regarded as an aggregate of individuals. The authorities are replete with instances where the partnership is considered an entity. (See 6 Witkin, Summary of Cal. Law (8th ed. 1974) Entity and Aggregate Theories, §14, pp. 4264-4265.)" Id. p. 119 "In the area of procedures, a partnership is treated substantially the same as a corporation [Fn 4 omitted], and an entity concept predominates. Thus in order to acquire jurisdiction over a partnership the partnership entity must be designated as the defendant, and the naming of the individual partner is not sufficient. [Citations omitted] The interest of an individual partner in partnership assets is not subject to attachment or execution except on a claim against the partnership. [Citations omitted]." Id. pp. 119-120 Petitioner’s position is further supported by Evans v. Galardi (1976) 16 Cal.3d 300 wherein the California Supreme Court held: ". «+ »« we need only point out that a limited partnership is viewed as an entity separate and apart from 42 the limited partners for purposes of suing and being sued. (Code of Civ. Proc. §388. subd. (a); §15526.)[Fn 16 omitted] The limited partner is not a proper party to proceedings by or against the limited partnership (§ 15526), and the limited partnership is not involved in suits against the limited partners in their individual Capacity." Id. p. 31l In People v. Sobiek (1973) 30 Cal.App.3d 458 the court held: "Under traditional legal concepts the partnership is regarded as an aggregate of individuals with each partner acting as agent for all other partners in the transaction of the partnership business, and the agents of the partnership acting as agents for all of the partners." [Citation omitted] Id. p. 467 "Thus, given the recent trend in the law in recognizing unincorporated associations as separate legal entities ..." Id. p. 468 In Promotus Enterprises, Inc. v. Jiminez (1971) 21 Cal.App.3d 560, the court held: "We are supported in our conclusion by a recent partnership decision of our Supreme Court, Fazzi v. Peters, 68 Cal.2d 590, wherein a copartnership was sued and service was made on all of the partners individually. As the action named only the copartnership as a defendant and did not name as defendants either of the partners individually, the 43 court held that a judgment’ in personam could not be entered against one not a party to the action and ‘ voided the judgment against the individual partners." Id. p. 566 In Fazzi_ v. Peters (1968) 68 Cal.2d 590, ; this Court held: "., . » an individual judgment : may not be rendered against a partner not joined as a defendant in an action against the partnership of which he is, or is alleged to be, a member [Fn 7 Omitted]". Id. p. 597 In addition, there is other sound legal support to conclude a partnership is a separate legal entity, distinct from its individual RE a ARE PT ELE ti POP G5 Rl ei a members. First, by statute a partner, not licensed to practice law, to a general partnership cannot epee = SL eee os een) Cee ond represent the partnership in legal matters, In Pro Se. (See Calif. B&PC §61257*) “Corporations and partnerships both of which are fictional legal persons, obviously cannot appear for themselves personally. With regard to these two types of business associations, the longstanding and * 4 : j $ 3 18 "No person shall practice law in this State unless he is an active member of the State Bar." Deerings, B&PC §6125, Page 389. 44 consistent court interpretation of §1654 is that they must be represented by licensed counsel." [Turner _v. American Bar Asso. (1975, DC Tex) 407 F. Supp. 451, 476] “Corporations must be represented in court by attorneys admitted to practice, and may not apply through an officer or other lay representative." "The same _ rule applies to partnerships and other unincorporated associations." [First Amendment _. Foundation v. Brookfield (1983, ND ILL) 575 F. Supp. 1207.) Partnerships and corporations are independent legal entities. In Vann v. Shilleh (1975) 54 Cal. App.3d 192, the holding is that a corporation cannot appear in pro per. [Clean Air ransport stems v. San Mateo Count Transit Dist. (1988) 198 Cal. App.3d 576) holding that “an unincorporated association must be represented by a licensed attorney." Secondly, the Federal Bankruptcy Courts, have continually allowed partnerships to file for bankruptcy protection, notwithstanding the fact that the individual partners do not have to file unless they become insolvent, or vise versa. (See generally 11 U.S.C. §303(3), 11 U.S.C. §723, Bankruptcy Rule 2009(e), and Bankruptcy Form 4) "There is no requirement that any partner in a case under Title II file under the same chapter as the 45 partnership or vise versa." U.S. Code & Congressional and Administrative News 5, 95th Congress, 2nd Session 1978, page 6158. In addition: “A partner may file a voluntary case under II U.S.C. 301 whether or not the partnership is a debtor under a case under Title II." U.S. Code & : Congressional and Administrative News 5, 95th Congress, 2nd Session 1978, page 6158. | Third, and finally, the underlying trial court determined that petitioner had individual claims separate from the partnership Cullen Development Company. On June 16, 1987, Judge Morris stated: "Mark Thomas Cullen has just filed with the court a voluntary petition in bankruptcy under chapter eleven, which was ordered filed in : the federal bankruptcy court at 1:20 P.M. this day, and Mr. Mark Cullen, who’s present together with James Cullen, has lodged that with the court, and I [the court] will order it filed as a record of this case. That precludes any further proceedings against defendant Mark Thomas Cullen." At that point, Judge Morris protected petitioner’s individual rights as to the complaint, against petitioner, and petitioner’s 46 cross-complaint against the Housing Authority. Therefore, petitioner suffered no “actual injury" by reason of the adverse judgment of 1987 because the action was stayed with respect to his individual liability and his cross- complaint against the Housing Authority. Witkin, also concurs that if there are separate and distinct interests that they are separately appealable. "It is well settled that where parties have distinct interests there can be a_ separate, final and appealable judgment for each." 9 Witkins, California Procedure, Appeals, Section 49, page 74. So too, should the partnership, Cullen Development Company and petitioner have had separate causes of action for legal malpractice against respondents because both individuals were separately represented by respondents. This should lead to the correct legal conclusion that a partnership oor other unincorporated association capable of suing or being sued as "an entity" in the State in which an action is brought should be deemed a citizen LAI Niet Wena No sw Tt he Wh 9 ait add ely Sa aie ieee be Ae te 47 of the State where it has its principal place of business, whether such action is brought by or against such partnership or other unincorporated association or by or against any person as an agent or representative thereof. Notwithstanding the fact that a judgment was entered against the partnership, Cullen Development Company on June 16, 1987, no judgment _was entered against individual petitioner until September 7, 1990. According to the California Statute of Limitations for legal malpractice, petitioner had suffered no “actual injury" in the underlying Housing Authority case until the above-referenced date. The appellate court correctly focused into the heart of the issue in deciding when petitioner sustained actual injury. The problem is, the Appellate Court in the two underlying cases (Housing Authority v. Cullen and Cullen v. Trainor) came to two diametrically opposed opinions as to when petitioner suffered actual injury. 48 "The question is when did Cullen "sustain actual injury" within the meaning of that statute. Defendants argue that Cullen sustained injury in 1987 when the adverse judgment was entered against Cullen Development Company, among other reasons, because "his interest in the partnership claims against the Housing Authority were [sic] lost and he had sustained injury at that time." The argument is persuasive." Appendix C, p. C-12- 13 This conclusion by Appellate Justice Blease is in complete contrast to the Housing Authority v. Cullen appellate decision by Appellate Justice Davis, wherein Justice Davis held: On June 16, 1987,"no action was taken against Mark T. Cullen on the complaint or on the cross-complaint." Appendix H, p. 8 The contradiction of these two decisions focusses on the confusion between’ the partnership, Cullen Development Company’s, cause of action for legal malpractice and petitioner’s individual cause of action for legal malpractice. Petitioner respectfully suggests’ the appellate court erred in finding petitioner sustained “actual injury" under Civil Code of 49 Procedure §340.6 at the same time the partnership did since petitioner had a separate cause of action. Petitioner’s case went on for approximately four years before his cause of action for legal malpractice against respondents became ripe. The partnership Cullen Development Company, as a legal entity, could have brought a lawsuit for legal malpractice against defendants (on or after June 16, 1987), but not petitioner, as an individual, since petitioner had suffered no individual "actual injury". (See generally CCP §340.6 and Laird v. Blacker (1992) 2 Cal.4th 606) Simply because the partnership failed to assert its legal rights does not bar petitioner from asserting his individual legal rights. Petitioner suffered "actual injury" on September 7, 1990, as pleaded. Since petitioner had suffered no injury, until this time, petitioner, on April 29, 1991, timely filed his action for Legal Malpractice against respondents. The court, in Laird v. Blacker 2 Cal.4th 50 606, 615 (May 1992), held that: ". . « under section 340.6, the statute of limitations for legal malpractice actions commences’ on entry of adverse judgment or final order of dismissal." Petitioner respectfully requests that the Court grant review of this case to decide if petitioner and Cullen Development Company have separate causes of action for legal malpractice against respondents. Itt. PETITIONER HAS BEEN DENIED DUE PROCESS AND EQUAL PROTECTION OF THE LAW SINCE THE LOWER COURTS HAVE BARRED PETITIONER FROM BRINGING A CAUSE OF ACTION FOR FRAUD AGAINST RESPONDENTS. Respondents voluntarily agreed to provide legal representation for petitioner, individually, and the partnership, Cullen Development Company, in the underlying Housing Authority case. Respondents were employed to answer the complaint by the Housing Authority and file cross-complaints for petitioner and Cullen Development Company on four separate contracts. As a prerequisite to the filing of a cross- debit eat wg Wn RS se bie Petes OB: 51 complaint on three of the contracts’ the respondents were under an obligation to file claims’*® with Sacramento County before any legal action was commenced on the _ three projects.”° It should distinguished, a claim was not required to be filed for the Rio Linda contract because the Housing Authority was the plaintiff. Respondents failed to file the required claims, and thereafter, concealed this fact from petitioner. Fraud is defined as: “An intentional perversion of truth for purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. A false representation of a matter of fact, whether by words or conduct, by false or misleading allegations, or by concealment of that which should have - been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal 19 California Government Code §§ 900 et. seq. Deerings California Codes. ” Those three projects being the South Sacramento Family Residence, the North Highlands Family Residence, and the Elk Grove Family Residence. 52 injury." (Emphasis added). [Blacks Law Dictionary, 5th Ed. 594.] Once respondents discovered their error, a date upon which petitioner is uncertain, respondents practiced damage control and concealed from petitioner their negligence. After petitioner’s discovery of respondents’ concealment in August’ 1989, petitioner timely filed an action for fraud against respondents. California Civil Code of Procedure Section 338 sets forth the statutory limitation for, inter alia, fraud or mistake, as three years. In pertinent part CCP §338 (d): "An action for relief on the ground of fraud or mistake. The cause of action in the case is not to have been deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake." Deering’s California Codes, annotated. Petitioner filed his cause of action for fraud against respondents on April 29, 1991, well within the required statutory period. The appellate court’s decision held: 53 ) ". . »« Cullen’s argument fails : for the reason that the alleged fraud was not the legal cause of his injuries." (AD1 p.12) In support of that argument, the appellate court relied simply on Rest. 2d Torts, §432, subd. (1) "[Tjhe actor’s negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent." Appendix C, p. C-19 _ we vty took ei, ae Daa Ae it by re Then the appellate court’s decision states: "Cullen seeks to prize off a tort theory of liability from the contract theory which was pled in the cross-complaint. He claims the tort theory could have been brought if a governmental tort claim had been filed against the public entity." Appendix C, p. C-20 Then the appellate court held: “Whether the cross-complaint sounded in tort or in contract or both, it advanced but one cause of action. Had the defendants done what Cullen says they should have done, i.e., timely filed a tort claim and amended the cross-complaint to advance this as an additional but alternative theory of recovery, the unfavorable default judgment nonetheless would have been entered in the Housing Authority case and would have barred any subsequent . action on this claim." Appendix C, pp. C-20-21 Then the appellate court’s decision held: 54 "The cause of harm to Cullen thus occurred at the point of entry of the judgment on the cross- complaint.” Further, the appellate court’s decision stated: "The alleged failure to plead the tort theory and the "fraudulent" failure to disclose the reason did not cause Cullen any harm because it cannot be said that Cullen would have recovered “but for" these wrongs." Appendix C, Pp. C-21 The appellate court has overlooked and wrongfully lumped four contracts together. The appellate court is correct in stating that a judgment was entered against Cullen Development Company on the Rio Linda Contract. However, no judgment was entered on the other’ three contracts. These three contracts were not part of the underlying judgment entered against Cullen Development Company on June 16, 1987. Since these contracts are independent, petitioner should not be denied the opportunity to bring a cause of action for fraud against respondents. The lower courts failed to recognize that as a prerequisite to the filing of cross- complaint by petitioner on three of the | - : : a 55 underlying contracts respondents were statutorily required to file claims*’, with the County of Sacramento, first. The lower courts have confused these claims with tort claims. Accordingly, whether petitioner’s cause[s] of action fell under contract, tort, or both, a claim was required to be filed by respondents. Respondents failed to file said claims and, wantonly and willfully, concealed this from petitioner. In support of petitioner’s position, in the Alton v. Rogers case (1954) 127 CA2d 667, the defendant attorney withheld information from his client regarding the status of a promissory note. Plaintiff- client knew the attorney was not fulfilling the promises in the year 1941. Plaintiff filed his action for fraud some 10 years later. In view of the confidential relationship that existed between the parties, plaintiff was legally entitled to rely on the many reassurances of the defendant attorney that "= See Footnote 19, supra. 56 everything was alright, and the court held this legitimately delayed the discovery of fraud. “Causes of action based on fraud of attorney are not barred when brought within three years after discovery of fraud, and attorney may not successfully claim that plaintiff should have discovered fraud when he knew that loan he purportedly made to third person, at attorney’s instigation, was not paid within a year as attorney had represented, and that the plaintiff should not have been so credulous as to have believed attorney’s subsequent representations and continuing promises." Id. p.668 In petitioner’s underlying Housing Authority case, petitioner relied on the respondents to be truthful. Petitioner had every right to believe, and did in fact believe, and follow all recommendations made by the respondents. Petitioner should not be penalized for following the guidance of the respondents and now be barred from seeking damages for respondents’ incompetence, lies, and deceit. Respondents’ abandonment of petitioner in the underlying Housing Authority case had no reason to excite petitioner’s suspicion that the respondents had done anything wrong. ee eee en “ado sedies 57 After all, respondents told petitioner that the Substitution of Attorneys and their fabricated claim that monies were owed [to the respondents] would certainly delay the pending trial date of June 16, 1987. The Court should not lose sight of who procedurally controlled the underlying Housing Authority case--the respondents. The Knapp v. Knapp case (1940) 15 Cal.2d 237, also supports petitioner’s position. This case involved the sale of real property jointly owned by two brothers. One brother sold the property and defrauded the other as to the amount of the sale, and kept more than his share, of monies, which he converted to his own use. The court held: ". .« »« a plaintiff who sues to recover damages for fraudulent representations made more than three years prior to the commencement of his action is required to affirmatively plead that he did not discover the facts constituting the fraud until within the _ statutory period of limitation. A further element of his cause of action is a statement of facts showing that he had no notice or means of knowledge 58 which, if followed by inquiry, would have shown the true facts." [Citations omitted] "However, the latter requirement has been relaxed in cases involving’ confidential relationship,-—because facts which justify investigation in the ordinary case would not excite suspicion where the circumstances show a right to rely upon the representations of another and the same degree of diligence should not be required." Id. p. 242 Nothing happened in petitioner’s underlying case to excite petitioner’s suspicion that he was being defrauded by the respondents. Because of the existence of a fiduciary relationship between respondents and petitioner, petition had every right and justification to detrimentally rely on the statements) and representations conveyed to him by respondents in the underlying Housing Authority case. In Kimball _v. Pacific Gas & Electric Company (1934) 220 C. 203, a very similar concealment [to the one petitioner alleges respondents committed] took place. Plaintiff in this case was injured in a work related injury by an employee of a company other than 4S inl Aeit bs 59 plaintiff’s. P.G. & E. and the other company set out on a campaign to conceal this fact from the damaged plaintiff. This concealment of the two companies was successful, until plaintiff discovered a letter that set forth the true facts and facts regarding the concealment. [So too, was respondents’ concealment successful until petitioner discovered the concealment. ] The court held: "., . « a fraudulent concealment by the defendant of the facts upon which a legal common-law action is based, under the proper circumstances, tolls the statute until discovery and that upon discovery the statute applicable to that particular action then commences to run." Id. p. 210 The respondents set out on ae similar concealment in the underlying case. Respondents failed to file required claims under the Government Claims Act. Then respondents concealed this negligent act from petitioner for over one and one-half years. Even when respondents abandoned representation of petitioner, respondents continued to conceal 60 this negligent act from petitioner. Respondents’ defense, by way of the underlying Demurrer, was that petitioner should have discovered this negligent act as soon as petitioner was substituted, In Pro Se. Respondents were under a Fiduciary Duty and Ethical Duty to disclose this concealment to petitioner. Respondents breached both of these duties. After all, an attorney [respondents] is [are] an officer[s] of the court. "The relation between attorney and client is a fiduciary relation of the very highest character, and binds the attorney to most conscientious fidelity--uberrima fides. (Cox v. Delmas (1893) 99 C. 104" 1 Witkin, California Procedure, Attorneys, Section 95 at p. 113 It is a clear violation of petitioner’s right to "due process of law" to bar petitioner from litigating a valid and ripe cause of action for fraud against respondents. This Court has not sanctioned the denial of due process of law. As the Court has stated: "As our decisions have 61 emphasized time and again, the Due Process Clause grants the aggrieved party the opportunity to present his case and have its merits’ fairly judged. Thus it has become a truism the “some form of hearing" is required before the owner is finally deprived of a protected property interest. Board of Regents v Roth, 408 US, at 570-571, n8, 33 L. Ed2d 548, 92 S Ct 2701 (emphasis in original)."“ Logan v. Zimmerman Brush Company (1982) 455 US 422, 433, 71 L.Ed2d 265, 102 S Ct 1148. "The Court traditionally has held that the Due Process Clauses protect civil litigants who seek recourse in the courts, either as defendants hoping to protect their property or as plaintiffs attempting to redress grievances. Id. p. 429 In the Logan case, Justice Powell, judgment, stated: "It is necessary for this Court to decide cases during almost every Term on due process and equal protection grounds. Our opinion in these areas are often criticized, with justice, as lacking consistency and clarity. Because these issues arise in various’ settings, and opinions are written by each of nine Justices, consistency of language is an ideal unlikely to be achieved." Id. p. 443 Fn. with whom Justice Renquist joins, concurring in the Petitioner respectfully requests the Court 62 grant review of this case to decide if petitioner has a valid cause of action for fraud against respondents. CONCLUSION No individual, whether it be a partnership, legal entity or petitioner should be denied due process and equal protection of the law under the United States Constitution, made applicable to each state through the Fourteenth Amendment. The Court should not allow state courts, even the highest state court, to legislate the law. The separation of powers concept is deeply rooted in our system of government. Accordingly, when a vague statute is passed into law, such as California Civil Code of Procedure §340.6, that statute should be stricken from use until the legislature writes a statute clear enough so that persons of common intelligence must not necessarily guess at the meaning. If the Court allows California’s present statute of limitations for Legal Malpractice to go unchallenged, the appellate 63 courts will continue to be inundated with legal malpractice cases, just as they have since the Laird decision. A result that Justice Mosk legally reasoned and so accurately predicted in the Laird case. Petitioner respectfully prays that this Court consider the grave effects when due process is denied upon the public, other general partnerships and petitioner, grant this writ, accord petitioner the process deserved, and order the California Supreme Court to reverse the Court of Appeal, Third Appellate District, to overturn the lower court’s denial of Cullen’s procedural DUE PROCESS right to bring causes of action for legal malpractice and fraud against respondents. DATED: June 25, 1993 Respectfully submitted, frie | LX -Mark~?.—Cullen—— P.O. Box 1215 Shingle Springs, CA 95682 PETITIONER, IN PRO SE i A-1 APPENDIX A Third Appellate District No. C012365 $031216 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA IN BANK MARK T. CULLEN, Appellant Vv. FILED: MAR. 31, 1993 Robert Wandruff Clerk ROBERTSON, SMITS & WADE MTRAINOR Et Al., Respondents Appellant’s petition for review DENIED. LUCAS Chief Justice B-1 APPENDIX B NOT FOR PUBLICATION IN THE COURT OF APPEAL FOR THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (SACRAMENTO ) FILED: FEBRUARY 1, 1993 MARK T. CULLEN, Plaintiff and Appellant, 3 Civ.C012365 (Super.Ct.No. CV520230) Vv. TRAINOR, ROBERTSON, SMITS & WADE, Defendants and Respondents. mm ee ee eee eee eee OPINION ON DENIAL OF PETITION FOR REHEARING Cullen petitions for a rehearing. His sole noteworthy complaint is that the opinion’s principal theory of resolution of his fraud claim does not squarely extend to part of his case. While the point has arguable merit, the underlying claim has no merit for reasons that B-2 closely parallel those given in the opinion. Cullen had worked on four construction contracts for the Housing Authority, all of which were canceled in April 1985. The Housing Authority filed its suit, in July 1985, for breach of contract as to only one of these, the Rio Linda contract. Cullen retained the defendant law firm and they agreed to file a cross-complaint for damages for breach on all four contracts on tort and contract theories. The cross-complaint defendants filed, in February 1987, was limited to the Rio Linda contract and only presented a theory sounding in contract. As explained in the opinion, Cullen sustained actual injury when this cause of action was lost in the trial of June 1987. Cullen represented himself thereafter. He alleged that, when he learned of the Tort Claims Act in law school in the fall of 1989, he discovered defendants had defrauded him by failing to tell him that they had impaired his opportunity to pursue tort theories on the four B-3 causes of action. On August 14, 1990, he filed a motion to amend his existing cross-complaint, apparently seeking, inter alia, to add counts stating causes of action for damages on the other three contracts. The Housing Authority opposed this motion and it was denied. Cullen suggests that the theory in the opinion rejecting his fraud claim for lack of causation of harm only pertains to the Rio Linda contract cause of action that had been stated in the original cross-complaint. He argues that he was defrauded by defendants concealing their failure to file government tort claims as to the other three contracts, and as to this he suffered no actual harm until the denial of his motion to amend in 1990. He submits that the statute of limitations to litigate the three other contract claims was not barred by the statute of limitations because "they relate back" to the date the Housing Authority sued him on the Rio Linda contract. The relation back theory is untenable. B-4 (See 5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § § 1161-1162.) A claim of breach of separate contracts concerning the construction - of structures at different locations is a wholly different legal liability or obligation from that stated in the original cross-complaint and cannot relate back for purposes of evading the statute of limitations. Cullen knew in 1987 that the cross- complaint prepared by defendants did not put in issue the other three contract causes of action. He took no action to pursue these causes until 1990. Assuming for the sake of discussion that defendants concealed a failure to _ file government tort claims concerning’ these contracts, no harm to Cullen can be attributed to this delict. These causes of action must have arisen prior to April 1985 when all of the contracts were terminated. If, as Cullen suggests, these were independent causes of action, he was free to pursue them in an independent action or to axe ee B-5 move to amend and include them in the existing action. The failure to do so until after the expiration of the period of limitations on a action for breach of contract is the cause of any harm for loss of a judicial remedy on the causes of action. Defendants’ failure to disclose that they had not filed government tort claims did not prevent Cullen from pursuing these causes of action on a theory sounding in contract. Having slept on his rights sounding in contract, if any, to recover from the Housing Authority for the breach of these three contracts, Cullen cannot recover from his former counsel for failing to perfect a potential alternative remedy, for the reasons given in the opinion. The petition for rehearing is denied. BLEASE , Je os We concur: PUGLIA , P.J. SCOTLAND , Je Cel APPENDIX C NOT TO BE PUBLISHED IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (SACRAMENTO) FILED: JANUARY 4, 1993 MARK T. CULLEN, Plaintiff and Appellant, 3 Civ.C012365 (Super.Ct.No. CV520230) Ve TRAINOR, ROBERTSON, SMITS & WADE, Defendants and Respondents. This is an appeal froma judgment following dismissal after a general demurrer was sustained without leave to amend. Plaintiff Mark Cullen seeks to prosecute a cause of action against defendants Trainor, Robertson, Smits & Wade, the law firm whose attorneys represented him during a lawsuit brought against him for breach of contracts to construct public housing for the County of Sacramento. He claims that the law C-2 firm abandoned its defense and failed to prosecute a counter claim against the plaintiff in that action. A general demurrer was sustained on the ground that the action is barred by the statute of limitations, Code of Civil Procedure section 340.6.” Cullen contends that the trail court erred in applying the statute of limitations. We will conclude that the statute of limitations began on the date the judgment in the underlying action was entered against the partnership of which Cullen was a member, October 13, 1987, for that is the date upon which he suffered injury to his interests. That date is more than one year form the date on which the complaint in this action was filed, April 29, 1991. We also will conclude that the limitations period was not tolled by reason of an alleged fraud in the nondisclosure of defendants’ failure to meet the claims statute, an alleged predicate to success 22 References to a section are to the Code of Civil Procedure unless otherwise indicated. es C-3 on the cross-complaint brought in the Housing Authority action, because such a fraud was not a legal cause of injury sustained. We will affirm the judgment (order of dismissal). FACTS AND PROCEDURAL BACKGROUND Cullen’s first complaint for malpractice in this action was filed on April 29, 1991. The verified complaint was filed in propria persona, on his own behalf and in the name of Cullen Development Company, a partnership. He alleged, among other things, that Cullen Development Company suffered severe financial damages as a result of the same alleged attorney malpractice of which he complains. A demurrer was sustained to the first complaint as to Cullen Development Company without leave to amend and with respect to Cullen with leave to amend. No issue is tendered on the appeal concerning the propriety of the demurrer granted with respect to Cullen Development Company. The demurrer we review was granted as to c-4 Cullen’s first amended complaint, styled "Further Amended First Amended Complaint" consisting of an introduction and four counts. Stripped of conclusions of law, evidentiary matter (see 4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § § 338, 346), and immaterial asides the complaint makes the following material allegations of fact. In September 1985 Cullen retained Trainor, Robertson, Smits & Wade (Counsel) to represent him in the defense and prosecution of a cross- complaint in a lawsuit brought against him by the Housing Authority of Sacramento County (Housing Authority). Cullen was led to believe that the cross-complaint would include counts stating causes of action for breach of contract and tortious breach of contract. Counsel failed to file a governmental tort claim as a predicate for the contemplated cross-complaint within the period prescribed by statute. The cross- complaint, filed on February 5, 1987, asserted only a cause of action for breach of contract. C-5 Counsel also failed to prepare properly for trail. Counsel concealed the true reason for failing to file the cross-complaint as originally proposed and informed Cullen that the original scope of the cross-complaint could be achieved under affirmative defenses and by way of an amendment to conform to proof at trial. Less than a month before the scheduled trial date of June 16, 1987, Counsel informed Cullen that they desired to terminate the attornment. At their request, Cullen signed the papers substituting him as his own attorney and the substitution was filed two weeks prior to trial. The day before trial Counsel advised Cullen that if the matter came on for trial as scheduled he could delay the trial _ by peremptorily challenging tthe first judge assigned and filing a bankruptcy petition to obtain a stay of pending proceedings against him. Counsel failed to inform Cullen of the proper method to file a bankruptcy when both an individual and a partnership were involved. In C-6 terminating the attornment Counsel “again concealed their procedural errors, by not informing [Cullen] of [their] procedural errors to date." Cullen had a meritorious defense and counterclaim in the Housing Authority lawsuit. If Counsel had acted competently in representing him he would have prevailed. During 1989 Cullen represented himself and Cullen Development Company, a general partnership operating under a general building contractor’s license of which Cullen was the qualifying partner, in an administrative hearing before the Registrar of Contractors, defending against an accusation that discipline was warranted against the license because of failure to complete the contracts in issue in the Housing Authority’s lawsuit without legal excuse. On June 25, 1990, the Registrar of Contractors issued a decision in the matter finding that discipline was not warranted on the ground of failure to complete the contracts because the failure was caused by C-7 misconduct of the Housing Authority in the administration of the contracts. On August 30, 1990, Cullen filed a motion to amend his cross-complaint in the Housing Authority lawsuit. On September 7, 1990, the motion was denied. On October 30, 1990, the court granted a partial summary judgment motion in favor of the Housing Authority denying relief under the cross-complaint. On April 4, 1991, judgment was entered against Cullen in favor of the Housing Authority. Despite numerous opportunities to disclose their negligence in failing to file a governmental tort claim counsel failed to do so. Counsel concealed this negligence by falsely stating to Cullen, for the purpose of deceiving him, that the reason they delayed in filing the cross-complaint and filed the abbreviated version of the cross-complaint was Cullen’s lack of funds. The true en that counsel failed to research the Tort Claims Act in a timely fashion, failed to file a governmental C-8 tort claim within the required time, and failed to do the research necessary to find an exception to cure their error. Cullen relied upon the misrepresentation in believing that counsel had made a zealous effort to file the appropriate cross-complaint. He did not discover Counsel’s failure to file a governmental tort claim until the fall of 1989. That ends the pertinent allegations in Cullen’s complaint. Counsel demurred contending that Cullen’s first amended complaint fails to state a cause of action not barred by the applicable statutes of limitations. The demurrer attacks the complaint, viewed in the context of matters occurring in the Housing Authority lawsuit - of which judicial notice had been taken in proceedings on the earlier demurrer. The record of that litigation shows the following. The defendants in the Housing Authority lawsuit included Cullen and Cullen Development Company. When the matter came on for trial on June 16, C-9 1987, it was stayed as to Cullen because of his bankruptcy petition filing but went forward as to the other defendants. At the conclusion of the trial, the court announced that judgment would be granted in favor of the Housing Authority against Cullen Development Company. On October 13, 1987, that judgment was entered. - After the bankruptcy stay was lifted as to Cullen the Housing Authority lawsuit proceeded as to him. The issues tendered in the cross- complaint were resolved in favor of the Housing Authority in a partial summary judgment which was based upon the theory the earlier judgment against Cullen Development Company warranted issue preclusion against Cullen. The trial court in this action sustained the demurrer to Cullen’s first amended complaint. DISCUSSION Introduction I "In reviewing the sufficiency of a C-10 complaint against a general demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ (Serrano v. Priest (1971) 5 Cal.3d 584, 591, [96 Cal.Rptr. 601, 487 P.2d 1241, 41 A.L.R.3d 1187].) Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 42 [172 P.2d 867].) When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. (See Hill v. Miller (1966) 64 Cal.2d 757, 759 [51 Cal.Rptr. 689, 415 P.2d 33].) And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; C-11 if not, there has been no abuse of discretion and we affirm. (Kilgore v. Younger (1982) 30 Cal.3d 770, 781, [180 Cal.Rptr. 657, 640 P.2d 793]; Copper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636 [75 Cal.Rptr. 766, 451 P.2d 406].) The burden of proving such reasonable possibility is squarely on the plaintiff. (Copper v. Leslie Salt Co., supra, at p. 636.)" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) . Cullen contends that the trial court erred in sustaining the demurrer. He argues that he should not have been barred under the statute of limitations pertaining to legal malpractice, section 340.67*, for two reasons. The first is 23° section 340.6 in pertinent part provides: “An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. In no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist: (1) The plaintiff has not sustained actual injury; C-12 that he suffered no "actual damages" until the order denying him leave to amend the cross- complaint. The second is that he pled actual fraud in concealing the failure to file a governmental tort claim. We will discuss these claims seriatim; neither is persuasively supported and the contention of error is not meritorious. II Cullen claims that his cause of action is timely under section 340.6 because he suffered no “actual damages" until the order denying him leave to amend the cross-complaint. He asserts he “discover[ed] . . . the facts constituting the wrongful act or omission" of Counsel in the allegedly wrongful failure to prepare the case for trial in June 1987. The question is when did Cullen “sustain actual injury" within the meaning of the (3) The attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney, except that this subdivision shall toll only the four- year limitation;. . C-13 statute. Defendants argue that Cullen sustained injury in 1987 when the adverse judgement was entered against Cullen Development Company, among other reasons, because "his interest in | all partnership claims against the Housing Authority were [sic] lost and he had sustained injury at that time." The argument is persuasive. The statutory provision that the limitations period is tolled during the time "the plaintiff has not sustained actual injury" is premised upon the view that the cause of action does not accrue until the alleged negligence results in some actionable harm to the plaintiff. "If the allegedly negligent conduct does not cause damage, it generates no cause of action in tort. The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm - - not yet realized -- does not suffice to create a cause of action for negligence. Hence, until the client suffers appreciable harm as a consequence of his attorney’s negligence, the client cannot establish a cause of action for malpractice. Prosser states the proposition succinctly, ‘It follows that the statute of limitations does not begin to run against a negligence action until some damage _ has C-14 occurred.’ [{] The cause of action arises, however, before the client sustains all, or even the greater part, of the damages occasioned by his attorney’s negligence. Any appreciable and actual harm flowing from the _ attorney’s negligent conduct establishes a cause of action upon which the client may sue." (Budd v. Nixen (1971) 6 Cal.3d 195, 200-201, citations and fn. omitted. ) Cullen submits that he suffered no appreciable harm by reason of the adverse judgement in 1987 because the action was stayed with respect to his liability and his cross- claim against the Housing Authority. Cullen’s implicit claim is that the harm he suffered while wearing his partnership hat cannot be considered harm to him under his individual hat. This is not persuasive. "The underlying fallacy in respondent’s argument is the assumption that the partnership is a distinct unit, separate form the members thereof. Occasional suggestions of this ‘entity’ theory of partnership are found in statutes or decisions, but apart from exceptional situations, a partnership is not considered an entity, but an association of C-15 individuals." (Reed v. Industrial Acc. Com. (1937) 10 Cal.2d 191, 192-193.) "A partner is a coowner with the other partners of specific partnership property holding as a tenant in partnership." (Corp. Code, § 15025, subd. (1).) As related, Cullen alleged in his first verified complaint that the partnership suffered the loss of a valuable property right, a chose in action, under the adverse judgment by reason of the alleged malpractice of Counsel. Cullen suffered appreciable harm in the loss or destruction of this partnership property of which he was a coowner. As a partner Cullen could have commenced an action to recover for the alleged malpractice upon the entry of the adverse judgment on the partnership’s cross-complaint. (See Laird v. Blacker (1992) 2 Cal.4th 606, 615; Corp. Code, § 15009; see generally Owens v. Palos Verdes Monaco (1983) 142 Cal.App.3d 855.) The policy of the statutes of limitation is one of repose, to preclude the assertion of stale claims. (See C-16 3 Witkin, Cal. Procedure, supra, Actions, § 309.) In these circumstances, an exceptional recognition of a partnership "entity" theory would defeat this policy and is unwarranted. Cullen also makes a protracted argument that is an attempted collateral attack in this court on the judgment in 1987 in an independent lawsuit. He argues that judgment should be found “not controlling in the case at bar" because in his view the trial court in that lawsuit erred in failing to stay the proceedings against his partners and Cullen Development Company as a result of his filing of a bankruptcy petition. He argues that the trial court in that lawsuit lacked jurisdiction to enter judgment against his codefendants because it had an adverse effect on his bankruptcy estate. He requests that we "vacate" the 1987 judgment in the Housing Authority action. He also argues that the degree of misconduct of Counsel was so egregious as to warrant equitable relief from the adverse 1987 judgment. C-17 We imply no view on the potential merit of these arguments if raised in an appropriate forum. This is not such a forum. The 1987 judgment was obtained in an entirely different action than the one we review. It runs in favor of a different party. If the 1987 judgment can be "“vacated" or otherwise overcome that must occur in an action to which the parties to that judgment are joined. If Cullen were to succeed in such an endeavor he could pursue his original remedy against the alleged underlying malefactor and has no claim against Counsel for depriving him of that remedy. If not, then it follows, as Cullen himself artlessly suggests, harm was done to him in the entry of the judgment in 1987 and at that point time under the one year period of limitations provided in section 340.6 pertaining to his cause of action against Counsel began to run. IIl Failing these claims Cullen argues that the statute of limitations was tclled until his C-18 discovery that defendants fraudulently concealed their alleged negligence in failing to file a governmental tort claim which would have allowed them to plead a tort theory in the cross- complaint against the Housing Authority as an alternative to the contract theory which was plead. This, he argues, renders section 340.6 inapplicable. This theory is based upon the view that, in addition to the cause of action for malpractice for abandonment of his defense to the Housing Authority action, Cullen stated a cause of action for fraud relating to his cross-complaint which could be maintained within three years of discovery under section 338, subdivision (d).** That discovery, so he alleges, occurred in August 1989 when he became aware of the concealment. The argument does not attend to 24 section 338, subdivision (d), provides a three year period of limitation for “An action for relief on the ground of fraud or mistake. The cause of action in that case is not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake." —— C-19 the language of section 340.6, which distinguishes between "actual fraud", that is excepted from its ambit, and “wilfully conceal[ing] the facts constituting the wrongful act or omission when such facts are known to the attorney .. ." Regardless of that distinction, Cullen’s argument fails for the reason that the alleged fraud was not the legal cause of his injuries. "“[Tjhe actor’s negligent conduct is not a substantial factor in bringing about harm to ' another if the harm would have been sustained even if the actor had not been negligent." (Rest.2d Torts, § 432, subd. (1).) As discussed above, Cullen’s interest were injured when the judgment was entered against Cullen Development Company in favor of the Housing Authority on its complaint and against the company on its cross- complaint. As explained, the statute of limitations started to run on regarding Cullen’s malpractice claims predicated upon defendants’ TR eT om failures to defend against the Housing Authority C-20 action. For the same reason the statute of limitations started to run against Cullen’s malpractice claims regarding the - cross- complaint. Cullen seeks to prize off a tort theory of liability from the contract theory which was pled in the cross-complaint. He claims the tort theory could have been brought if a governmental tort claim had been filed against the public entity. As to this theory he claims the statute of limitations was tolled until discovery of the reason why the tort theory was not pursued. The viability of this theory is dependent upon its survivability as an independent cause of action. That is the defect in the argument. Whether the cross-complaint sounded in tort or in contract or both, it advanced but one cause of action. Had the defendants done what Cullen says they should have done, i.e., timely filed a tort claim and amended the cross- complaint to advance this as an additional but alternative theory of recovery, the unfavorable C-21 default judgment nonetheless would have been entered in the Housing Authority case and would have barred any subsequent action on the claim. The judgment entered in favor of the Housing Authority adjudicated the merits of Cullen’s cross-complaint against the Housing Authority regardless of theory of recovery. (See generally, Perry v. Robertson (1988) 201 Cal.app.3d 333.) The cause of harm to Cullen thus occurred at the point of entry of the judgment on the cross-complaint. For the reasons already advanced, the statute of limitations then began to run on claims arising out of loss of that cause of action. The alleged failure to plead the tort theory and the "fraudulent" failure to disclose the reason did not cause Cullen any harm because it cannot be said that Cullen would have recovered “but for" these wrongs. DISPOSITION Cullen’s motion for judicial notice on this appeal of certain materials in the record of his C-22 appeal in the Housing Authority v. Cullen litigation is denied. The judgment (order of dismissal) is affirmed. BLEASE , Je We concur: PUGLIA , P.J. SCOTLAND , J. | \ D-1 APPENDIX D | MEMERING, VARANINI, HURST, CROWLE & TRIMBLE POST OFFICE BOX 590 SACRAMENTO, CALIFORNIA 95812-0590 TELEPHONE: (916) 923-2800 \ Attorneys for Defendants Law Firm of Trainor, Robertson, Smits & Wade and CHARLES TRAINOR, STUART SMITS, WILLIAM DAVIS, DAVE ROBERTSON and GARY FUNAMURA, individually FILED: SEPTEMBER 27, 1991 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SACRAMENTO CULLEN DEVELOPMENT COMPANY, NO. 520230 et al., Plaintiffs, ORDER AND JUDGMENT OF DISMISSAL RE: DEMURRER vs. DATE: SEPT. 24, 1991 TRAINOR, ROBERTSON, SMITS TIME: 9:00 A.M. & WADE, et al., DEPT: 28 THE HONORABLE JOE S. GRAY Defendants. / The demurrer of defendants, LAW FIRM of TRAINOR, ROBERTSON, SMITS & WADE, and CHARLES ) TRAINOR, STURART SMITS, DAVE ROBERTSON, WILLIAM DAVIS AND GARY FUNAMURA, individually, to the D-2 Further Amended First Amended Complaint of plaintiff, MARK T. CULLEN, came on regularly for hearing in this Court, Department 28 of Sacramento County Superior Court, before the Honorable Joe S. Gray on September 24, 1991. Plaintiff MARK T. CULLEN, represented himself and appeared on his own behalf. Defendants, Law Firm of TRAINOR, ROBERTSON, SMITS & WADE, and CHARLES TRAINOR, STUART SMITS, DAVE ROBERTSON, WILLIAM DAVIS and GARY FUNAMURS, individually, were represented by their counsel, HENRY W. CROWLE of MEMERING, VARANINNI, HURST, CROWLE & TRIMBLE. On proof made to the satisfaction of the court that grounds for dismissal, with prejudice, and judgment thereon were proper as supported by defendants’ demurrer, points and authorities, declarations, and other moving papers herein, and that defendants’ demurrer be sustained without leave to amend, IT IS HEREBY ADJUDGED, ORDERED AND DECREED that defendants’ demurrer be, and the same D-3 hereby is, sustained, without leave to amend on the basis that plaintiff’s Further First Amended Complaint states no facts to constitute any cause of action whereby the action be dismissed, with prejudice, in its; entirely, and that judgment of dismissal be awarded to defendants. DATED: SEPTEMBER 27, 1991 JOE S. GRAY JUDGE OF THE SUPERIOR COURT E-1 APPENDIX E MEMERING, VARANINI, HURST, CROWLE & TRIMBLE POST OFFICE BOX 590 SACRAMENTO, CALIFORNIA 95812-0590 TELEPHONE: (916) 923-2800 Attorneys for Defendants Law Firm of Trainor, Robertson, Smits & Wade and CHARLES TRAINOR, STUART SMITS, WILLIAM DAVIS, DAVE ROBERTSON and GARY FUNAMURA, individually FILED: JULY 16, 1991 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SACRAMENTO CULLEN DEVELOPMENT COMPANY, NO. 520230 et al., Plaintiffs, ORDER AFTER HEARING vs. DATE: JULY 11, 1991 TRAINOR, ROBERTSON, SMITS TIME: 9:00 A.M. & WADE, et al., DEPT: 28 THE HONORABLE JOE S. GRAY Defendants. s / The defendants’ Demurrer in the above- entitled action came on regularly before this E-2 court for hearing on July 11, 1991. Considering defendants’ demurrer, plaintiffs’ opposition, ‘. supporting points and authorities, the court files herein and on proof made to the satisfaction of the this Court, IT IS HEREBY ORDERED THAT: 1. The Demurrer to Complaint of Cullen Development Company is sustained without leave to amend. 2. The Demurrer to the third cause of action for breach of contract is sustained with leave to amend for failure to state whether the alleged contract was written or oral. 3. The Demurrer to the first, second and fourth causes of action are sustained with leave to amend based on the statutes of limitations. 4. Plaintiff MARK T. CULLEN shall have 10 days after service of this order in compliance with Local Rules, Rule 32, to amend his complaint. 5. Defendants shall have 10 days from date of service of amended complaint to file a _—— responsive pleading. DATED: JULY 16, 1991 JOE S. GRAY JUDGE OF THE SUPERIOR COURT tae | APPENDIX F Third Appellate District No. C011217 S030563 IN THE SUPREME COURT OF CALIFORNIA IN BANK HOUSING AUTHORITY OF THE COUNTY OF SACRAMENTO, RESPONDENT Ve. FILED: FEB. 10, 1993 Robert Wandruff Clerk MARK T. CULLEN, APPELLANT Appellant’s petition for review DENIED. LUCAS Chief Justice G-1 APPENDIX G COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT FILED: DECEMBER 15, 1992 HOUSING AUTHORITY OF THE COUNTY OF SACRAMENTO, ) ) ) 3 Civ.C0i112i7 Plaintiff and Respondent, ) ) (Super.Ct.No. ) CV331596) V. ) ) ) ) ) MARK T. CULLEN, Defendant and Appellant. By the Court: Appellant’s petition for rehearing is denied. Dated: December 15, 1992 SIMS, Acting P.J. H-1 APPENDIX H NOT TO BE PUBLISHED COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT ( SACRAMENTO) FILED: NOVEMBER 20, 1992 HOUSING AUTHORITY OF THE COUNTY OF SACRAMENTO, — 3 Civ.C011217 Plaintiff and Respondent, (Super.Ct.No. CV331596) Vv. MARK T. CULLEN, Defendant and Appellant. INTRODUCTION Although what is past is always prologue, in this appeal we must get a particularly long running start to comprehend the nature of the appellate contentions. Plaintiff Housing Authority of Sacramento County (SCHA) filed this action in 1985 for breach of contract against Mark T. Cullen.” The Cullens and _ the = Also named defendants in the amended complaint were James and Richard Cullen and the business in which the three Cullens were partners, Cullen Development Company (hereafter, “the partnership”). Any subsequent undesignated “Mr. Cullen” references will be to Mark Cullen. H-2 partnership filed a cross-complaint for breach of contract in February 1987. At the eventual start of trial in June 1987, Mr. Cullen produced a copy of a petition for voluntary bankruptcy (pursuant to title 11 of the United States Code) that he had just filed in federal court, which the trial court stated "preclude[d] any further proceedings against Defendant Mark Thomas Cullen." Ultimately, the court entered judgment against James and Richard Cullen and the partnership on both the complaint and cross- complaint in 1987. Following Mr. Cullen’s voluntary dismissal of his bankruptcy petition in December 1989, SCHA resumed proceedings against him. In August 1990, Mr. Cullen sought to amend his surviving portion of the cross-complaint (on which the trial court had taken no action) to add causes of action based on his successful defense of his contractor’s license in a 1989-1990 disciplinary administrative proceeding instigated by SCHA. The trial court denied the motion without H-3 comment. SCHA then moved for summary judgment on the cross-complaint on the ground of issue- preclusion, based on the fact it had prevailed on the cross-complaint against the other cross- claimants. The trial court granted the motion. Immediately prior to the February 1991 trial against Mr. Cullen, SCHA successfully moved in limine to exclude the introduction of any evidence in support of affirmative defenses which were related to the now-defunct cross- complaint. At the conclusion of trial, the court ruled in favor of SCHA but stayed entry of judgment pending additional argument on any issue-preclusive effect of the administrative proceeding. Ruling (after supplementary briefing) that there was no preclusive effect, the trial court entered judgment against Mr. Cullen in April 1991. This brings us to Mr. Cullen’s pro. per. appellate contentions. He asserts the 1987 judgments entered against the partnership and his partners are invalid because the Cullens H-4 were abandoned by the attorneys representing them and because his bankruptcy stay should have been extended to his co-defendants. He also claims the trial court should never have allowed the attorneys to substitute out of the action, and should have allowed a continuance once they did. The short answer to this category of argument is that it comes too late in the day-- the 1987 judgments against the partnership and the other Cullens, never having been appealed, are now final and may not be attacked here by Mr. Cullen either directly or collaterally. Mr. Cullen also challenges the denial of his motion to amend his cross-complaint, the grant of summary judgment on the cross-complaint, the preclusive effect on his affirmative defense accorded to the summary judgment ruling, and the failure to accord the administrative proceeding any preclusive effect in the present action. We shall affirm. FACTS To focus (at least initially) on the H-5 transaction which is the subject of the original complaint and cross-complaint, SCHA and the Cullen partnership executed a written contract in August 1984 for construction of a 20-unit low/moderate-income housing project in Rio Linda at 6029 Dry Creek Road. The project was to begin in August 1984 and be _ substantially completed by March 1985. The partnership stopped work on the project in April 1985, having completed 46 percent of it, and ignored SCHA’s demands to finish the job. SCHA took charge of the project and rebid it to another contractor. After deducting a number of credits, the cost to SCHA of completion was approximately $366,000. In a curious maneuver, SCHA filed both a complaint and an amended complaint for breach of this contract on July 22, 1985. James, Richard, and Mark Cullen filed an unverified answer individually and as Cullen Development Company; they included the affirmative defense of a breach of contract on the part of SCHA, as well H-6 as misrepresentation and fraud by SCHA in the inducement of the contract. For some reason, Tom Cullen also answered, although not named in the amended complaint.*® On February 5, 1987, the parties filed a stipulation for an order permitting defendants Cullen and the partnership to file a cross- complaint (despite the pending February 18 trial date) "containing a cause of action for Breach of Contract only." This pleading alleged that SCHA had frustrated the ability of the partnership to complete the project by altering terms and failing to pay for work completed in a timely fashion. On February 19, the case was reset for trial in June 1987 because there were no available courtrooms. On June 3, 1987, James, Richard, and Mark i The original complaint included Tom Cullen as a defendant; the amended complaint deleted him. There is no explanation of the change. There were indications at the second trial in this matter that Tom Cullen was not a member of the partnership (although he is a brother of Mr. Cullen). As he is not a significant character in the lawsuits (other than as the executor of numerous proofs of service), we will not further concern ourselves with him. | : H-7 Cullen filed a substitution of themselves in propria persona for their retained counsel (Trainor, Robertson & Smits); Mark Cullen signed a substitution on behalf of the partnership. Trainor, Robertson & Smits nonetheless appeared "specially" to argue for a continuance of trial, arguing they had substituted out because they had not been paid and their former clients would not be able to find alternative counsel in time for trial. Mark Cullen represented that he and his fellow litigants would be able to come up with the money for new counsel within the next 60 days. The court denied that motion. On the morning of June 16, Richard Cullen failed to appear for trial and a default judgment was entered against him. Mark Cullen filed a peremptory challenge against’ the assigned judge, and the matter was reassigned to a different judge for trial that afternoon. When the matter was called for trial at 1:30 p.m., Mark Cullen presented the court with his bankruptcy petition, which had been filed 10 H-8 Minutes earlier. He remained present at the hearing. After perfunctory questioning of James Cullen and a witness testifying to SCHA’s damages, the court ruled against James Cullen and the partnership on SCHA’s complaint and on the cross-complaint. No action was taken against Mark Cullen on the complaint or on the cross-complaint. The court initially entered judgment in favor of SCHA only on the complaint against Richard and James Cullen and the partnership; it later amended the judgment to include the cross-complaint. The judgment recited that the partnership had appeared "Pro per by JAMES CULLEN." In April 1988, the Contractors’ State License Board (CSLB) filed an accusation against Mark Cullen’s contractor’s license. This was based on consumer complaints filed by SCHA in June 1985 alleging the partnership had abandoned the Rio Linda Project and three other projects in April 1985 for which SCHA held contracts with the partnership. In a decision rendered May 22, 2 ine bsad H-9 1990 (and adopted by the CSLB on June 25, 1990),?’ the administrative law judge found no basis for discipline for abandonment of these four projects because SCHA’s conduct rendered performance by the partnership impracticable due to excessive and unreasonable expense and difficulty.” The CSLB did impose a 30-day suspension of the license for failure to account sah Mr. Cullen had requested the trial court to take judicial notice of the complaint, accusation, and decision; SCHA raised no objection. We therefore take judicial notice of this decision as an official act of the executive branch. (Evid. Code, §452, subd. (c).) We may take judicial notice of the truth of its findings of fact. (Bach v. McNelis (1989) 207 Cal.App.3d 852, 865.) ” To quote a representative passage of the decision, “[SCHA]’s breaches of covenants and implied warranties, infra, coupled with selfish and incompetent project administration, constituted a material failure of consideration and rendered Cullen’s continued performance on the Rio Linda project impracticable due to excessive and unreasonable difficulty and expense [SCHA]‘s administrators significantly interfered with Cullen on the job site and with Cullen’s relationships with its bonding companies and private line of credit, substantially hampering Cullen’s ability to {perform successfully]. The totality of [SCHA]’s conduct toward Cullen operated to deny Cullen the benefit of its bargain made with [SCHA] in signing the contract. The material failure of consideration and the impracticability due to excessive and unreasonable difficulty and expense extinguished Cullen’s obligation to further perform under the contract and provided Cullen the right to rescind." H-10 properly for funds received on the Rio Linda project. In September 1990, Mr. Cullen moved for leave to file an amended cross-complaint. According to his notice of motion, these new allegations “were discovered in a_e recent Administrative Law Case hearing the same legal issues," which was final as to the CSLB. He asserted any delay was reasonable because of his bankruptcy filing. He also claimed he had wished to await the resolution of the CSLB proceeding, since it presented the same factual and legal issues. The proposed cross-complaint now encompassed all four contracts with SCHA and contained causes of action for breach of contract and miscellaneous torts. SCHA opposed the amendment on several grounds: unreasonable delay and concomitant prejudice to SCHA; issue preclusion; failure to comply with procedural prerequisites for filing tort claims against governmental agencies; and the _ statute of limitations with respect to any new cross- H-11 defendants brought into the action. SCHA’s counsel also averred he had stipulated to permitting a cross-complaint to be filed on the eve of the 1987 trial only if it were limited to the single breach-of-contract cause of action. At the hearing on the motion, the court stated it felt the scope of the cross-complaint in 1987 was a tactical compromise by which Mr. Cullen should be _ bound.’® The court was also disturbed by expanding the number of contracts at issue from one to four and adding tort claims (although Mr. Cullen expressed his willingness to abandon the tort claims). The court denied the motion "in its discretion." Shortly after obtaining the order denying this motion to amend, SCHA filed a motion for summary judgment on the original cross-complaint. It argued the issue of whether it had breached the contract with Mr. Cullen 29 The trial court thus accepted the truth of SCHA’s declaration on this point, which we may not gainsay. (Beckett v. Kaynar Mfg. Co., Inc. (1958) 49 Cal.2d 695, 699; Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1077.) H-12 had previously been adjudicated when the trial court had entered judgment against the other cross-complainants (i.e., the partnership and James and Richard Cullen) on the cross- complaint. The court granted the motion "for the reasons stated in the moving party’s points and authorities." In its final procedural salvo against Mr. Cullen, SCHA filed a motion in limine to exclude evidence of damages arising out of facts related to the dismissed cross-complaint. In arguing the motion, SCHA expanded the scope to any "legal excuse to not .. . performon... the contract." The court at first denied the motion. After reexamining SCHA’s authority, the court ruled that Mr. Cullen was precluded from introducing any evidence of the conduct on which the cross-complaint was based as an affirmative defense. During trial, Mr. Cullen raised the CSLB proceedings as a defense, claiming SCHA was precluded from relitigating the question of his H-13 breach of contract. The court told him he would have the opportunity to brief the issue before it rendered a written judgment. After receiving the parties’ supplementary briefing, the trial court ruled it would not give an effect to the CSLB decision (giving five bases in its written order). This appeal followed. DISCUSSION I Mr. Cullen’s bankruptcy petition has no relevance to these proceedings Woven throughout Mr. Cullen’s brief on appeal are references to the effect of his bankruptcy filing on the validity of the 1987 judgments. We must first purge this spectre from the discussion. It is true his interest in the partnership is considered part of his bankruptcy estate (In re Manning (10th Cir. 1987) 831 F.2d 205, 207) and therefore any proceeding by a creditor against that interest would be subject to the H-14 automatic stay that is the "fundamental protection provided by the bankruptcy laws" (11 U.S. [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1088%3A1. Public record. Not legal advice.