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Scarzella v. Demers

8/24/1993

COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT DISTRICT


No. C012818.


1993.CA.42840 ; 22 Cal. Rptr. 2d 329; 17 Cal. App. 4th 1762


Decided: August 24, 1993.


JACK R. SCARZELLA, PLAINTIFF AND APPELLANT,
v.
LOUIS DEMERS ET AL., DEFENDANTS AND RESPONDENTS.


Superior Court of Sacramento County, No. CV513593, Ronald B. Robie, Judge.


Eisen & Johnston, Jay-Allen Eisen, Marian M. Johnston, Karen Leaf and Ann Perrin Farina for Plaintiff and Appellant.


Hansen, Boyd, Culhane & Watson, David E. Boyd and Thomas L. Riordan for Defendants and Respondents.


Opinion by Blease, Acting P. J., with Nicholson and Raye, JJ., Concurring.


Blease


This is an appeal from a discretionary dismissal of an attorney malpractice action under Code of Civil Procedure sections 583.410 and 583.420, subdivision (a)(1), for failure to make service of summons on the defendant within two years after the action was commenced. Plaintiff Jack Scarzella contends that the trial court abused its discretion in granting the motion for dismissal because the delay in service of summons was excused by the pendency of an appeal in the underlying wrongful termination action which is the subject of the malpractice claim. We will conclude that the mere pendency of such an appeal does not excuse a delay in the service of summons. We will affirm the judgment (order of dismissal).


FACTS AND PROCEDURAL BACKGROUND


Defendant Louis DeMers represented Scarzella in a wrongful termination of employment action in the Sacramento Superior Court. Scarzella prevailed, recovering a substantial judgment for compensatory and punitive damages against the corporation which was his former employer and, on a theory of wrongful interference with the contractual employment relationship, against the major stockholder of the corporation.


Both sides appealed; Scarzella was represented by new counsel on appeal. He contended, in pertinent part, that the trial court erred in instructing the


jury, that the damages awarded were insufficient under the evidence, and that the trial court erred in failing to award attorney fees and costs despite failure to plead and prove them as damages.


On February 22, 1988, during the pendency of the first appeal, Scarzella filed a complaint in propria persona initiating this malpractice action in the San Joaquin County Superior Court. The complaint does not disclose the nature of the claimed malpractice; it simply asserts that DeMers somehow injured Scarzella through malpractice. The prayer of the complaint seeks general damages and recovery of the attorney fees Scarzella incurred for appeal in the wrongful termination action.


On March 23, 1990, this court issued its opinion in the wrongful termination action, rejecting Scarzella's contentions and affirming the judgment with the exception of a punitive damages award against the corporation. Thereafter, Scarzella, represented by counsel, filed a motion to change the venue of the malpractice action to Sacramento, based on the declaration that "investigation" by his counsel "disclosed" that DeMers and his law firm were located in Sacramento.


On June 6, 1990, Scarzella filed a first amended complaint in the Sacramento Superior Court. The allegations reveal that Scarzella claims that malpractice

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