Filed 5/26/16 Stafford v. Mains & Clark CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

LOUISE STAFFORD,

Plaintiff and Appellant,

v.

MAINS & CLARK et al.,

Defendants and Respondents.

 B263490

 (Los Angeles County

 Super. Ct. No. BC502809)

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael L. 

Stern, Judge. Affirmed.

Law Offices of Edi M. O. Faal and Edi M.O. Faal for Plaintiff and Appellant.

Klinedinst, Heather L. Rosing, Gregor A. Hensrude and Kyle T. Overs for 

Defendants and Respondents Mains & Clark and David M. Mains.

Yee & Belilove, Steven R. Yee, Steve R. Belilove and Rosely George for Defendants 

and Respondents The Trial Law Offices of Bradley I. Kramer and Bradley Kramer.

Manning & Kass, Ellrod, Ramirez, Trester, Rinat B. Klier Erlich and Candace E. 

Kallberg for Defendants and Respondents Frazee Law Group and Roseann Frazee.

* * * * * *
2

In this case involving alleged legal malpractice, the trial court granted summary 

judgment in favor of three defendant attorneys. The court found no evidence the attorneys 

caused Louise Stafford to lose her underlying litigation. Causation is a required element of

a legal malpractice claim. (Osornio v. Weingarten (2004) 124 Cal.App.4th 304, 319.)

On appeal, appellant Stafford argues that the trial court should have granted her 

request for an additional continuance of the hearing on summary judgment. We conclude 

that the trial court did not err in denying her requested additional continuance because

Stafford failed to show that such continuance would have assisted her in obtaining facts 

essential to her opposition. Further, we find no evidence raising a triable issue of material 

fact supporting the inference that Stafford’s attorneys in the underlying litigation caused her 

to lose the underlying litigation. We affirm the judgment.

FACTS AND PROCEDURE

This is a legal malpractice case against Stafford’s three prior attorneys—David 

Mains, Roseann Frazee, Bradley Kramer—and their law firms. The three attorneys 

represented Stafford in underlying litigation concerning an automobile collision. Mains 

represented Stafford first, but withdrew prior to trial because of difficulties in the attorneyclient relationship. On November 3, 2011, Frazee became Stafford’s attorney. Kramer 

assisted Frazee with the underlying trial, which started November 5, 2012.

1. Current Lawsuit

Stafford filed her complaint in the current litigation March 12, 2013. Her theory of

legal malpractice was that her attorneys in the underlying litigation should have presented 

evidence that the automobile collision exacerbated her degenerative disc condition.

According to her, they breached the standard of care by instead advancing the theory that 

the vehicle collision caused her degenerative disc condition.

In the operative pleading, Stafford alleged that Attorney Mains failed to investigate 

damages. Stafford alleged that because of Attorney Frazee’s negligence she was unable to 

prove causation or damages at trial. According to Stafford, both Attorneys Frazee and 

Kramer failed to present evidence of causation during the underlying trial.
3

2. Underlying Litigation

On October 14, 2008, in a low-impact collision, Teresa Dille rear-ended plaintiff 

Stafford. Prior to the accident, Stafford had been diagnosed with a degenerative disc 

condition.

On October 14, 2008, the same day as the accident, Stafford went to the emergency 

room and was examined by Dr. Victor Lopez-Cuenca. He diagnosed Stafford with a neck 

sprain. In later reviewing her X-ray from 2008, Dr. Lopez-Cuenca opined that Stafford had

chronic degenerative changes. Dr. Richard Gritz, the radiologist on call when Stafford went 

to the emergency room, observed a “possible compression fracture of T9” and “degenerative 

changes in the mid and lower thoracic spine.”

On September 9, 2010, Stafford filed a lawsuit against Dille.

Dr. Salvatore Danna was deposed and stated that he treated Stafford in April 2011 

and July 2011 for thoratic nerve pain infected by shingles. He diagnosed Stafford with 

shingles at “T6 level.” Also in July 2011, Dr. Ian Purcell concluded that Stafford suffered 

from degenerative disc changes.

At trial in the underlying case, jurors considered Dr. Lopez-Cuenca’s testimony that 

Stafford suffered from a neck injury. Dr. Purcell testified at trial that Stafford complained 

of pain following her car accident. He testified that the pain could have been caused by 

shingles or by a focal nerve root compression. He testified that he found Stafford suffered 

from a degenerative disc condition. Dr. Purcell testified he could not determine to a 

reasonable degree of medical certainty that any of his findings were caused by the motor 

vehicle accident. Dr. Larry Froch testified he never treated Stafford for any condition as a 

result of the motor vehicle accident.

3. Motions for Summary Judgment

As noted, Stafford sued Mains, Frazee and Kramer for legal malpractice. Each

attorney filed a separate motion for summary judgment.

On August 22, 2014, Mains sought summary judgment on the ground that the statute 

of limitations barred the litigation and Stafford could not show that Mains’s alleged 

wrongdoing caused her harm.
4

On November 5, 2014, Frazee moved for summary judgment on the ground Stafford 

could not show she would have recovered in the underlying lawsuit but for Frazee’s 

conduct. She argued there was no evidence plaintiff had any admissible evidence of 

damages.

Also on November 5, 2014, Kramer moved for summary judgment, arguing that 

Stafford could not prove she would have prevailed in the underlying litigation.

4. Stafford’s Opposition to Summary Judgment and Requests for Continuances

On October 6, 2014, Stafford’s then-counsel Leo James Terrell sought a continuance

of the summary judgment hearing. Counsel represented that there had been a breakdown in 

the attorney-client relationship making it impossible for counsel to continue representing

Stafford. The court granted Attorney Terrell’s motion to be relieved. It continued the 

hearing on the motions for summary judgment to January 22, 2015.

Stafford hired new counsel December 16, 2014. At the request of Stafford’s new 

counsel, the court continued the hearing on the summary judgment motions to February 10, 

2015. On January 27, 2015, Stafford’s new attorney sought another continuance of the 

hearing on the summary judgment motions. The continuance was requested for the 

following reasons: “At the deposition of Defendant Frazee, she made numerous admissions 

of negligent conduct, and provided testimony about Defendant Kramer’s negligent conduct. 

The deposition transcript of Kramer also contains evidence of numerous acts of negligence. 

Plaintiff is entitled to present Frazee’s deposition, as well as Kramer’s deposition testimony,

as part of the opposition to the summary judgment motions.”

Although Stafford’s request for a continuance identified no purported admission, her 

separate statement in opposition to summary judgment elucidated what she believed to be 

the admissions, all of which concerned Attorneys Frazee and Kramer. Stafford stated that

(1) Frazee admitted that she did not explain to Dr. Purcell the standard reasonable degree of 

medical certainty; (2) Frazee admitted that she thought the standard was “substantial factor,” 

(3) Frazee admitted that she did not provide Drs. Purcell and Salvador Danna medical 

records prior to their depositions; (4) Frazee did not understand the standard of reasonable 

degree of medical certainty; (5) Frazee had not read the deposition transcript of Dr. Danna 
5

when she argued his testimony was admissible; (6) Kramer did not confront Dr. LopezCuenca with an X-ray; (7) Kramer did not accept Frazee’s invitation to work together in 

preparation for trial; (8) Frazee and Kramer failed to call Dr. Gritz “who saw a possible 

fracture at T9” to testify; (9) Kramer failed to elicit testimony that Dr. Froch prescribed 

Lyrica for plaintiff; (10) Frazee failed to obtain the consent of medical experts prior to 

designating them; (11) Frazee did not know what opinions her experts would render at their 

depositions; (12) Frazee failed to elicit testimony from Stafford regarding her pain and 

suffering; (13) Kramer made improper or tactically disadvantageous jury arguments; (14) 

Kramer and Frazee failed to offer evidence of Stafford’s medical bills; (15) Kramer “argued 

that Plaintiff’s pre-existing condition (dis[c] disease) was aggravated, yet he failed to elicit 

or offer any evidence to support the argument.” (In her separate statement, Stafford did not 

identify any evidence supporting the claim that her preexisting disc disease was aggravated.)

In her memorandum of points and authorities in opposition to summary judgment 

Stafford argued that Attorneys Frazee and Kramer did not understand “the basic principle 

that a plaintiff is entitled to damages if her preexisting degenerative dis[c] disease was 

aggravated by the accident. The Defendants [Frazee and Kramer] pursued the implausible 

theory that Plaintiff’s degenerative dis[c] disease was caused by the accident.” Stafford 

argued that Mains first proposed the “implausible” theory.

5. The Trial Court Granted Summary Judgment

At the hearing on the summary judgment motions, counsel for Stafford admitted that 

she presented no expert physician who would testify that the collision caused Stafford injury 

or aggravated an injury. Counsel also admitted that no expert opined that any of the 

defendant attorneys breached the standard of care.

The court granted summary judgment as to Mains based on the statute of limitations 

and lack of causation. As to Frazee and Kramer, the court granted summary judgment on 

lack of causation. This appeal followed.

DISUCSSION

It is undisputed that to prevail in this legal malpractice case, plaintiff Stafford was 

required to show that her former attorneys caused her injury. Her theory of injury was that 
6

the attorneys pursued the wrong theory of causation in the underlying litigation. Stafford 

raises two arguments on appeal: A continuance was required and the court erred in granting 

summary judgment for Mains. As we shall explain, both arguments lack merit.

1. A Continuance Was Not Warranted

Code of Civil Procedure section 437c, subdivision (h) provides: “If it appears from 

the affidavits submitted in opposition to a motion for summary judgment or summary 

adjudication or both that facts essential to justify opposition may exist but cannot, for 

reasons stated, then be presented, the court shall deny the motion, order a continuance to 

permit affidavits to be obtained or discovery to be had, or make any other order as may be 

just. The application to continue the motion to obtain necessary discovery may also be made 

by ex parte motion at any time on or before the date the opposition response to the motion is 

due.” “ ‘ “The purpose of the affidavit required by Code of Civil Procedure section 437c, 

subdivision (h) is to inform the court of outstanding discovery which is necessary to resist 

the summary judgment motion. [Citations.]” ’ [Citation.] ‘It is not sufficient under the 

statute merely to indicate further discovery or investigation is contemplated. The statute 

makes it a condition that the party moving for a continuance show “facts essential to justify 

opposition may exist.” ’ ” (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.)

Here, Stafford included no declarations or affidavits in support of her requested 

continuance. For that reason alone, her request for a continuance as to the motions of all 

three defendants was insufficient and the trial court properly denied it.

Even if we overlook this deficiency and even if we generously interpret the record to 

indicate that Stafford would have been able to prove the existence of all of the facts stated in 

her separate statement, Stafford still fails to identify any facts “essential to justify opposition 

may exist.” (Code Civ. Proc., § 437c, subd. (h).) The “facts” she sought to present were not 

material because none of the evidence she sought to present would have supported her 

theory that her attorneys should have presented evidence that the automobile accident 

aggravated her preexisting condition—degenerative disc disease. None of the purported 

admissions by Frazee and Kramer link the vehicle collision to Stafford’s preexisting 

condition. Simply put, the assumed “facts” in Frazee and Kramer’s deposition do not assist 
7

Stafford in raising an inference that the vehicle collision aggravated a preexisting condition. 

Therefore, the trial court properly denied a continuance. (Roth v. Rhodes (1994) 25 

Cal.App.4th 530, 548 [party seeking continuance of hearing on summary judgment motion 

must show “ ‘facts essential to justify opposition may exist.’ ”].)

Finally, as Mains points out, the requested continuance did not implicate his motion 

for summary judgment and was properly denied as to him for this additional reason.

2. Stafford Identifies No Error in Granting Mains’s Summary Judgment

Stafford argues that like Frazee and Kramer, Mains also was responsible for pursuing 

the wrong theory, i.e. that the vehicle collision caused her degenerative disc condition rather 

than aggravating it. She argues “[i]n opposition to Mains’ motion for summary judgment, 

Stafford showed that Mains never pursued the case on the theory that the accident 

exacerbated or aggravated a pre-existing degenerative dis[c] condition . . . .” Stafford’s 

argument lacks merit. She fails to show any error in granting summary judgment in favor of 

all three attorneys in the underlying litigation.

Stafford fails to identify any evidence raising the inference that her attorneys in the 

underlying litigation were negligent for failing to present evidence that the vehicle collision 

aggravated her preexisting condition. Although she cites to the depositions of her 

physicians in the underlying litigation, none of the depositions supported Stafford’s theory 

that the vehicle collision aggravated a preexisting injury. In his deposition Dr. Purcell 

testified that he could not determine whether the accident exacerbated Stafford’s injury 

because he did not have an image of Stafford’s spinal cord prior to the accident. Purcell 

stated that “certainly there is a high probability that her changes that we see here may have 

been exacerbated by a significant whiplash trauma to the spinal cord, but I cannot say that 

without medical reasonable doubt.” Purcell clarified that he could not opine “that there is a 

direct correlation with what I see here August 11, 2011 and what may have happened in 

2008.”

Stafford correctly points out that Dr. Gritz identified a possible “compression fracture 

of T9.” There is no evidence Dr. Gritz opined that this fracture was caused by the vehicle 

collision. Nor is there any evidence linking a compression fracture to the aggravation of 
8

degenerative disc disease. Stafford also correctly points out that Dr. Danna testified in 2011 

she suffered from shingles at theT6 level. However, as important here, Dr. Danna testified 

that he could not testify to a reasonable degree of certainty that the accident caused Stafford 

to suffer shingles. Nor did he testify that the shingles aggravated a preexisting degenerative 

disc disease. To the extent Stafford is arguing her attorneys failed to ask Drs. Danna and 

Lopez-Cuenca the proper questions, she presented no evidence of what their responses 

would have been to additional questions. More specifically, she presented no evidence that 

either doctor would have testified that the vehicle collision exacerbated her preexisting 

degenerative disc condition. Thus, none of the evidence cited by Stafford supported her 

theory that the 2008 low impact vehicle collision aggravated her preexisting degenerative 

disc disease. Simply put without presenting evidence that the collision aggravated her 

preexisting condition she cannot fault her attorneys for failing to adequately investigate or 

present that evidence.1 The trial court properly granted summary judgment as to all three 

attorneys.

DISPOSITION

The judgment is affirmed. Respondents are entitled to costs on appeal.

FLIER, J.

WE CONCUR:

RUBIN, Acting P. J. GRIMES, J.

 

1 Because we find Stafford failed to present evidence of causation, we need not 

consider whether the statute of limitations vis-à-vis Mains expired before Stafford filed the 

current litigation.