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Fisher v. Ginsburg10/31/2002
rred on the side of caution and granted a continuance, Fisher's argument must fail. None of the newly discovered evidence would have made a difference as far as the final outcome is concerned, even if it had been offered in a timely fashion. GSOR successfully negated several elements of Fisher's causes of action for breach of contract and legal malpractice, and summary judgment was properly granted.
Fisher's malpractice claim was premised on GSOR's "failure" to secure the presence of its lead attorney and defense expert at the arbitration, or to obtain a continuance based on their unavailability. But the undisputed evidence showed the defense expert notified GSOR of his unavailability the day before the arbitration was to occur. GSOR produced evidence to show it is not common practice for an expert witness to be subpoenaed by the party by whom he or she is retained. And Fisher did not produce any competent evidence to rebut this proposition. In any event, the arbitrator agreed to review and consider the expert's deposition testimony in full, including his opinions. Thus, there was no showing of negligence or that the alleged negligence resulted in any harm.
Fisher also claimed GSOR breached its duty of care by failing to obtain a continuance of the arbitration hearing so attorney Ginsburg could handle the proceeding. Again, the undisputed facts show Ginsburg was starting a trial in San Diego and recruited an apparently able associate to handle the hearing. More to the point, the evidence showed GSOR did, in fact, request and obtain a continuance, but neither Fisher nor his insurer were willing to pay for the costs associated with the delay. GSOR cannot be faulted for that decision.
Similarly, the undisputed evidence showed Fisher's insurance paid the entire sum of the judgment, demonstrating he had not suffered any damages as a consequence of GSOR's alleged negligence. Because Fisher did not set forth any evidence to show any damages he had sustained as a result of the alleged malpractice, he failed to establish yet another element of this cause of action.
As to the contract claim, we reach the same conclusion. Assuming Ginsburg did make an oral agreement to personally handle the arbitration hearing, the undisputed evidence showed his failure to appear was excused by the doctrine of impossibility. Ginsburg filed a supporting declaration stating he was denied permission to leave the San Diego court to handle the arbitration hearing. Fisher did not offer any competent evidence to rebut that contention. Nor did he offer any evidence to show that Ginsburg's absence led to the an adverse result at the arbitration hearing or to prove he suffered any damages as a result of Ginsburg's failure to appear.
The judgment is affirmed. Respondents shall recover their costs on appeal.
WE CONCUR:
SILLS, P.J.
BEDSWORTH, J.
Page 1 2 3 4 California Personal Injury Attorneys
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