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Guzey v. Kapp11/18/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
SUMMARY
This action arises from three prior lawsuits involving appellant Lynn Guzey and her former attorney, respondent Howard A. Kapp, dating back to 1996. In this action, Guzey sued Kapp for malicious prosecution based upon a prior malicious prosecution action Kapp filed against Guzey. The latter action followed a legal malpractice action brought by Guzey against Kapp.
Guzey appeals from a grant of summary judgment in Kapp's favor in the malicious prosecution action. She asserts the trial court abused its discretion in failing to grant her continuance request to oppose Kapp's motion for summary judgment. Additionally, she contends triable issues of fact exist regarding both probable cause and favorable termination in the underlying malicious prosecution action brought by Kapp against Guzey.
We conclude the court did not abuse its discretion in denying Guzey's continuance request. Furthermore, Guzey failed to demonstrate any triable issues of fact concerning whether the prior malicious prosecution action was pursued to a legal termination in Kapp's favor or whether Kapp's action was brought without probable cause. Accordingly, we affirm the judgment.
FACTUAL, LEGAL AND PROCEDURAL BACKGROUND
This action for malicious prosecution is the fourth in a series of related lawsuits.
A. The First Action for Medical Malpractice: Guzey v. Isenberg and Regents of the University of California
In 1980, Sherwin J. Isenberg M.D., an ophthalmologist employed by the Regents of the University of California at the U.C.L.A. Jules Stein Eye Institute, performed eye surgery on Guzey's left eye for an alleged focusing problem. Following the surgery, Guzey claimed she experienced "ongoing, intermittent problems with her left eye." Isenberg's surgery also caused her to experience "double vision, pain and extraordinary fatigue." However, when Guzey returned to Isenberg for reexamination, he told her that "everything was fine." Guzey accepted his reassurances. For several years, Guzey continued to see Isenberg for checkup treatments. During these checkups, Guzey continued to complain about her condition. Isenberg repeatedly told her "everything was fine," and "nothing more could be done." On June 20, 1991, Guzey filed a medical malpractice action against Isenberg. The lawsuit was filed by attorney Donald E. Karpel. In 1993, Guzey substituted attorney Howard A. Kapp to represent her in the medical malpractice action.
On February 2, 1995, the Regents moved for summary judgment claiming Guzey's action was barred by the statute of limitations. Code of Civil Procedure section 340.5 requires a plaintiff to file an action within one year following actual or constructive discovery of injury, unless the period is tolled by fraud, intentional concealment, or the presence of a foreign body. The Regents claimed Guzey had discovered by 1989 the alleged problems resulting from the eye surgery, citing as evidence two letters Guzey wrote suggesting she believed Isenberg had committed malpractice. Despite writing these letters in 1989, Guzey did not file her claim until 1991, two years after her suspicion arose concerning Isenberg's malpractice. When he received the Regents' motion, Kapp concluded Guzey's claim lacked merit. Kapp related his views to Guzey and asked her to consent to his withdr
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