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Allen v. Drexler11/14/2002
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
INTRODUCTION
Carole Sacks Allen (Allen) appeals from a judgment in favor of defendants David Drexler (Drexler) and Rodolfo and Isabel Ramirez (the Ramirezes). Allen filed the present lawsuit alleging that the Ramirezes, represented by Drexler, maliciously prosecuted an action for legal malpractice, which action arose out of her purported representation of the Ramirezes in a personal injury action. The central issue in this appeal is whether appellant proved that the malpractice action was favorably terminated.
Allen asserts as grounds for reversal that the trial court failed to correctly instruct the jury on the issue of favorable termination; committed evidentiary error based on the trial court's refusal to admit evidence regarding the favorable resolution of summary judgment obtained by her co-defendant in the underlying malpractice action; and, finally, contends the trial court erred in granting a directed verdict in favor of the Ramirezes based on the defense that they acted in good faith reliance on the advice of counsel in bringing the present malicious prosecution action. We disagree with all of Allen's contentions except the last, which is demonstrably harmless in view of the jury verdict finding Allen did not obtain a favorable termination in the malpractice action and requires that judgment be entered in favor of the Ramirezes.
Allen further appeals from the order awarding costs, including expert witness fees and discovery referee fees, against her, based on her refusal of a Code of Civil Procedure section 998 offer to settle made before trial by Drexler. Finding no error, we affirm.
Drexler cross-appeals from an order denying an award of expenses he contends he incurred in proving matters that were the subject of a request for admissions, which Allen refused to admit. (ยง 2033, subd. (o).) Because we conclude he did not prove those matters, we affirm the order.
Factual and Procedural Background
The Personal Injury Case
Beginning in August 1992, Sheldon Sacks and the Law Offices of Sheldon Sacks represented Rodolfo and Isabel Ramirez in a personal injury action against a farm to which Rodolfo was delivering fertilizer when he was injured. Allen is Sacks's daughter and worked as a lawyer for the Law Offices of Sheldon Sacks. The Ramirezes testified at trial in the present case that Sacks introduced Allen to them as his daughter and partner, and told them that he and his daughter would both work on their case.
During the course of the personal injury case, Sacks represented the Ramirezes at a voluntary settlement conference six days before trial. Allen participated in the settlement conference, but to what extent was hotly disputed. The Ramirezes contend that Sacks and Allen tried to pressure them into accepting an inadequate structured settlement worth about $400,000. Ultimately, the Ramirezes decided they did not want to settle on the terms proposed. The next day, Sacks received a letter from Drexler informing him the Ramirezes had signed a substitution of attorney and that Drexler would be representing the Ramirezes in the future.
Drexler tried the Ramirezes' case and obtained a verdict of $1,961,500, which was reduced by the jury's finding of 42 percent comparative negligence (24 percent as to Mr. Ramirez, and 18 percent as to his employer). The Ra
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