Filed 3/27/13 Colgan v. Howell CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE STATE OF CALIFORNIA

SEAN C. COLGAN, Plaintiff and Appellant,

v. JOSEPH A. HOWELL, Defendant and Respondent. D059980

(Super. Ct. No. 37-2009-00061332- CU-PO-CTL)

APPEAL from a judgment of the Superi or Court of San Diego County, William S. Dato, Judge. Affirmed. This legal malpractice action arises out of defendant Joseph A. Howell's representation of plaintiff Sean C. Colgan. In his complaint, Colg an, acting in propria persona, asserted that Howell committed two acts of professional negligence: (1) an alleged premature settlement of his persona l injury claim, and (2) the omission of a witness (Yolanda Chavez) from a witness list for the trial in his workers' compensation

case.2 At trial, following Colgan's opening st atement, the court gr anted Howell's motion for nonsuit on the basis that Colgan could not prove the elements of his cause of action for professional negligence because he had no expert testimony. On appeal, Colgan, again acting in propr ia person, asserts the court erred in granting the nonsuit motion because (1) the cour t ruled "too early" on the motion; (2) the court misapplied relevant case law; and (3) th e court "failed to consider the timing of its last minute notice and the e ffect it had." We affirm.
FACTUAL AND PROCEDUR AL BACKGROUND
A. Colgan's Claims of Allege d Professional Negligence As we have stated, ante , this action for professional negligence arises out of Howell's representation of Co lgan in connection with two matters: a third party claim and a workers' compensation claim, both of wh ich arose out of a motor vehicle accident in which Colgan was injured while on business on behalf of his employer. The thirdparty claim settled for $100,000 policy limits . Thereafter, the workers' compensation carrier asserted a credit agai nst that settlement in the amount of $47,476.49, which represented Colgan's settlement proceeds fro m the workers' compensation proceeding. Colgan asserted in the unde rlying workers' compensation action that the employer was not entitled to a credit as the accident and hi s injuries were the result of employer negligence because the se at in the employer's va n he was driving at the time of the rearend collision was defective and was a proximate cause of his injuries.3 1. Alleged premature settlement of third party claim Colgan claims that Howell was neg ligent by settling the third party claim prematurely in November 2005 and should have waited to file just before the two-year statute of limitations expired in November 2006 . Colgan contends th at as a result of the premature settlement of the third party claim, the workers' compensation carrier asserted a credit and delayed his treatment. Colgan asserts that had Howell waited to settle the claim just short of expiration of the two-year limitations period (1) he would have had his shoulder surgery before November 12, 2006; (2) the "pinched nerve" he suffered from at the time of trial, which arose after his should er surgery in 2008, would have appeared and been resolved by November 12, 2006; (3) he would have be en fully recovered from his workers' compensation injuri es by November 12, 2006; and (4) having reached full recovery, he would have been released back to wo rk by the time the two-year statute ran on November 12, 2006, on the third party claim.
2. Omission of witness Chavez from witne ss list for workers' compensation trial on credit issue Colgan claims that as a result of Howe ll's omission of Yolanda Chavez, the office manager for his employer, from the witness list for the trial on the employer credit issue, he was forced to enter into an unfavorable settlement on the credit issue. Colgan asserts that but for this omission he would have prev ailed because she would have testified that his employer knew about the defects in the employer's van he was driving.4 B. Colgan's Opening Statement at Trial When he appeared at trial, in propria persona, Colgan's gave an opening statement that consisted of the following: "Basically , the evidence is going to show that I was injured on the job and that while the medical care may have been complex, as far as surgeries and such, the actual course of treat ment, what needed to be done and getting it done should have been fairly simple and would have been fa irly simple, if not for the malpractice of my counsel at the time, Joe Howell. [¶] I'm going to be introducing various letters, emails, testimony to show that this is so." 1
C. Colgan's Trial Brief Colgan's trial brief addressed his claim regarding Howell's alleged failure to list witness Chavez, but failed to discuss or refe rence the alleged premature settlement of the third party claim. Colgan also admitted he needed a biomechanical engineer to demonstrate the defect in the vehicle and that such deficiencies were the primary cause of his injury. According to Colgan, Howe ll was negligent in failing to put Colgan's employer's office manager, Chavez, on the w itness list. According to Colgan, Chavez was a crucial witness against his employer because she was going to testify that the employer knew about the defects in the work van. Without the tes timony of this witness, Colgan

1 On December 19, 2011, Ho well filed a motion to augmen t to include the April 6, 2011 reporter's transcri pt because Colgan did not designate it as part of the record. On January 4, 2012, we granted the motion.5 asserted, he had no chance of proving his claim against the employer. Therefore, he had to accept an inadequa te settlement.
D. Motion for Nonsuit Following Colgan's opening statemen t, Howell made a motion for nonsuit, asserting, among other grounds, that Colgan could not prove th e elements of his claim for professional negligence because he had no expe rt testimony on the issues of the standard of care, breach of the standard of care, and his damages. At no time during the hearing did Colg an make a motion to enlarge his opening statement, reopen the case, or seek leave to de signate an expert witn ess. Colgan further did not make a request that he be able to respond to the motion in writing. The court granted Howell's motion for nonsuit. The co urt ruled that Colgan was unable to introduce evidence sufficient to establish a prima facie case for professional negligence because he lacked an y expert testimony on the standard of care, breach of the standard of care, expert medical testimony co ncerning his injuries, and the cause of his damages.
DISCUSSION
I. STANDARD OF REVIEW We review a grant of a mo tion for nonsuit de novo. ( Curtis v. Santa Clara Valley Medical Center (2003) 110 Cal.App.4t h 796, 800 [affirming gr ant of nonsuit where plaintiff in medical malpractice action soug ht to proceed without the presentation of expert testimony]; Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC (2010) 185 Cal.App.4th 1050, 1060.)6 II. ANALYSIS
A. Waiver California Rules of Court, rule 8.204(a)(1)( C) provides in part that appellate briefs must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter a ppears." "If a party fails to support an argument with the necessary c itations to the reco rd, that portion of the brief may be stricken and the argument deemed to have been waived." ( Duarte v. Chino Community Hospital (1999) 72 Cal.App. 4th 849, 856.) Here, Colgan's opening brief lacks any cita tion to the record be low. Accordingly, he has waived the right to claim the court e rred in granting Howell's motion for nonsuit. Furthermore, were we to reach the merits of Colgan's claims of error, we would conclude they are unavailing.
B. Merits 1. Timing of court's ruling Colgan asserts that the court "ruled to o early" on the motion for nonsuit. This contention is unavailing. A defendant may bring a motion for nonsuit after the plaintiff has completed his or her opening statement. (Cal. Code of Civ. Proc., § 581c, subd. (a); Lingenfelter v. County of Fresno (2007) 154 Cal.App.4t h 198, 207.) Thus, th e court did not grant Howell's motion for nonsuit "too early" as Colgan admittedl y did not have any expert witnesses and did not seek leav e to designate one, request a continuance, or reopen his

case.7 Colgan's reliance on Pete v. Henderson (1954) 124 Cal.App.2d 487 also does not assist our analysis. The Court of Appeal in Pete held that in ruling on a motion for nonsuit the court had the discretion to grant re lief to a party acting in propria persona to amend his complaint to properly state a claim and to reopen his case. ( Id. at p. 491.) Here, however, as noted, ante , Colgan did not seek relief to designate an expert or reopen his case.
2. Requirement of expert testimony Colgan asserts that the court "misapplied relevant case law" because "there is no case that absolutely re quires the presentation of expert testimony to show a breach of the Standard of Care required of a lawy er." We reject this contention. The elements of a cause of action for profe ssional negligence are: "(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent cond uct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence." ( Budd v. Nixen (1971) 6 Cal.3d 195, 200.) "[A]bsence o f, or failure to prove, any of them is fatal to recovery." ( Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1682.) In most cases, expert testimony is required to establish an attorney's standard of care and whether he or she breach ed the standard of care. ( Wright v. Williams (1975) 47 Cal.App.3d 802, 810; Wilkinson v. Rives (1981) 116 Cal.App.3d 641, 647.) Expert testimony is not required, however, when "the failure of attorney pe rformance is so clear that a trier of fact may find professional ne gligence unassisted by expert testimony."8 ( Wilkinson v. Rives, supra, at pp. 647-648.) "In other words, if the attorney's negligence is readily apparent from the f acts of the case, then the tes timony of an expert may not be necessary." ( Goebel v. Lauderdale (1989) 214 Cal.App.3d 1502, 1508.) Here, the narrow exception to the require ment of expert testimony in professional negligence cases does not apply. The alleged malpractice consisted of strategic decisions made by Howell in pursuing Colgan's third party and workers' compensation claims. Expert testimony was re quired because the legal consequen ces of what impact resolution of one has on the other were not within the common knowledge of laymen. "Frequently an a ttorney is confronted with legitimate but competing considerations, and we have recently recogn ized a latitude granted the attorney engaged in litigation in choosing between alternative tac tical strategies." ( Kirsch v. Duryea (1978) 21 Cal.3d 303, 309.) Expe rt testimony is required wher e an attorney is accused of malpractice based upon tactical trial strategies. ( Lipscomb v. Krause (1978) 87 Cal.App.3d 970, 976, Wright v. Williams, supra, 47 Cal.App.3d at p. 810; Kirsch v. Duryea, supra, 21 Cal.3d at p. 311 [expert tes timony required regarding reasonableness of investigation don e by attorney].) In support of his assertion that expert testimony was not required in this case, Colgan relies upon Day v. Rosenthal (1985) 170 Cal.App.3d 1125. However, Day does not support Colgan's position. Day was a case involving attorney misconduct that involved numerous "blatant and egregious vi olations of attorney responsibility." ( Id. at p. 1147.) The conduct in Day involved multiple violations of the California State Bar Rules of Professional Conduct, conflicts of interest , and commingling of client funds. As the9 Court of Appeal noted, the attorney there "trampled on basic attorney obligations: he abandoned the [clients'] best interest in defe rence to his own; he failed truthfully to disclose potential and actual conf licts of interests . . . ." ( Day , at p. 1147.) As the Court of Appeal stated, "[t]he litany could go on, al most without end. An d each phrase would add to the mountain of evidence that [the attorney] violated rules 4 and 5 [of the California State Bar Rules of Professional Conduct]." ( Day , at p. 1148.) The Court of Appeal concluded that "[t]he standards go verning an attorney's ethical duties are conclusively established by the [California State Bar] Rules of Professional Conduct. They cannot be changed by expert testimony." ( Day, at p. 1147.) In that case, based upon the egregious actions of th e attorney, the Court of Appeal held that "[i]t required no expert to tell the trial court that [the attorney's] perverted sense of duty to his clients . . . is attorney negligence." ( Id. at p. 1146.) This case does not involve conduct that invo lved violations of an attorney's ethical duties as set forth in the State Bar Rules of Professional Conduct, thereby obviating the need for expert testimony. Therefore, Day is inapplicable.
3. Last Minute Notice Colgan's claims that the court failed to consider th e timing of its "last minute notice" and the effect it had on his presentation of his case. This contention is unavailing. First, there is nothing in the trial court record to substantiate Colgan's assertion that the decision to grant nonsuit in favo r of Howell was made during "an ex parte meeting initiated by [Howell]."10 Colgan asserts that he su ffers from severe insomnia, a nd therefore the "'bombshell' didn't help [him] make a coherent presentation. " There is also nothing in the record to support this assertion, or that Colgan advi sed the court that he was unable to make a "coherent presentation." Rather, the motion for nonsuit was granted because Colgan had no expert testimony necessary to prove the elements of his claim of professional negligence.
DISPOSITION The judgment is affirmed. Howell shall recover his costs on appeal.

NARES, J.
WE CONCUR:
BENKE, Acting P. J.

McINTYRE, J.