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Basco v. Tishgart6/14/2005
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
At the conclusion of a bench trial attorney and appellant Kenneth Tishgart was ordered to pay $30,510 to former client and respondent Cleofe Basco for professional negligence. We affirm.
BACKGROUND
Viewed most favorably to respondent (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 787), the evidence received at the trial may be summarized as follows:
On the late afternoon of May 21, 1998, respondent Basco was at the Serramonte Shopping Center in Daly City. The California Farmers' Market Association (Farmers' Market), set up in the center's parking lot, was closing down for the day. One of the tents was being dismantled by the vendor using it, Barbara Casarez, when a gust of wind blew one of the metal tent poles into respondent's head. Although she did not immediately seek medical treatment, beginning the following day respondent has seen a constant stream of physicians and physical therapists at Kaiser Permanente. At the time of the accident respondent was an in-home caregiver, earning $100 a day and working full time. She has not worked since the accident. She suffers from frequent headaches and reduced capacity to speak, function and perform daily activities. Due to her injury-related impairments, she has no foreseeable expectation of returning to work.
In June of 1998, respondent engaged appellant to file suit on her behalf. Respondent did not file a complaint within the applicable statute of limitations, and the case was dismissed in May of 2000. Appellant never indicated to her that there was any difficulty with her case.
Accident analysis expert Kimberly Hawthorne concluded that Casarez was negligent in attempting to dismantle the tent when it was so windy, and the Farmers' Market was negligent in not having and enforcing guidelines about vendors dismantling their tents.
During discovery and at trial Tishgart refused to produce his file for the underlying case, claiming that he did not know where it was. Nor could he remember anything about the case. Neil Moran testified as an expert on the standard of care for attorneys. With respect to appellant losing/misplacing the case file of respondent's action against Casarez and the Farmers' Market, Mr. Moran gave his opinion that appellant's failure to preserve the file-particularly because there might be an issue of his professional negligence-was a breach of appellant's fiduciary obligation to respondent. "In the circumstance where it is a personal injury case, if the lawyer's file becomes lost or destroyed or otherwise disappears," having to reconstruct or do without medical records or witness statements "can be extremely prejudicial to the client."
Dr. Tracy Newkirk testified that because of the accident respondent suffers from Thoracic Outlet Syndrome, which "usually involves variable periods of cognitive decline." Respondent's "difficulty with memory and concentration [ ] . . . [ ] followed immediately" from her injury, as did the constant headaches and problems in expressing herself. Concerning respondent's occupation as an in-home caregiver, Dr. Newkirk testified " he couldn't possibly do that now." Even with ameliorative measures, respondent cannot make a full recovery; at best "we have a 50/50 percent chance of making a 50 percent improvement in lifestyle."
The sole witness for appellant was
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