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Fisher v. Ginsburg10/31/2002
The law firm of Ginsburg, Stephan, Oringher & Richman (GSOR), and its successor in interest, Stephan, Oringher, Richman, & Theodora, obtained summary judgment in an action filed by a former client, physician John Fisher, for legal malpractice and breach of contract. Fisher complains the trial court abused its discretion in denying his new trial motion, claiming he offered new facts and evidence to show the defendants negligently failed to obtain a continuance in the underlying arbitration proceeding, based on the unavailability of a defense expert and lead counsel. We discern no abuse of discretion and affirm.
I.
In January 1992, James Martin sued Fisher, a plastic surgeon , for medical malpractice, claiming Fisher failed to allow sufficient healing time between some 25 procedures performed from 1988 through 1990. The parties stipulated to a binding arbitration. With the insurance carrier's approval, Attorney William Ginsburg and his law firm substituted into the action in March 1993. Later that summer, Ginsburg retained Dr. Stanley Frileck as an expert witness in the action. His deposition was taken on January 30, 1996, approximately 21 days before the arbitration hearing date.
The day before the hearing, Frileck's office advised GSOR he would not be able to attend the arbitration. Complicating matters further, Ginsburg was starting a trial in San Diego and was also unable to attend the hearing. Attorney Laurel Hyde appeared in his stead, and requested a continuance on the grounds that neither the designated trial attorney nor defense expert was available. The arbitrator ruled Fisher could have a continuance, if he agreed to pay the sum of $11,225 (plaintiff's attorney and expert witness fees, plus the arbitrator's nonrefundable fee). Fisher and his insurer both refused to pay, and the arbitration went forward.
At Hyde's request, the arbitrator agreed to review and consider Frileck's deposition testimony, including his opinions on informed consent, standard of care, causation, and damages. At the conclusion of the proceeding, the arbitrator found for the plaintiff, and awarded $206,300. The trial court rejected Fisher's complaints regarding the arbitrator's failure to postpone the arbitration and granted a petition to confirm the award. Fisher appealed, claiming the order conditioning the continuance on the payment of fees was an abuse of discretion. In an unpublished opinion, a panel of this court affirmed the judgment, finding no abuse of discretion. (Martin v. Fisher (Nov. 23, 1998, G020395).) Our Supreme Court denied review and Fisher's insurer paid the full amount of the judgment.
Dissatisfied with the outcome, Fisher initiated a legal malpractice/breach of contract action against GSOR, citing the firm's failure to have an expert witness testify at the arbitration, or to obtain a continuance of the proceeding. Fisher also complained the firm's lead attorney, Ginsburg, reneged on his promise to personally handle the arbitration.
Discovery commenced, in anticipation of a February 2001 trial date, and GSOR eventually noticed a motion for summary judgment. Less than a month before the hearing on the motion, Fisher's attorney filed an ex parte motion to withdraw from the case and to continue the trial date and discovery cut-off. The court granted an order shortening time for a noticed motion and continued the summary judgment and trial dates. The court declined to extend the discovery cut-off, except to continue any depositions noticed before the initial trial date.
The court granted the motion and allowed Fisher's attorney to withdraw as counsel of record. The first order of business for Fisher's new attorn
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