KANE, J.
Plaintiff Eugene Forte sued his former attorney, Larry Lichtenegger, and the law firm of Lichtenegger & Lee (collectively defendants) for alleged legal malpractice. Defendants had represented plaintiff in an action for specific performance of a real estate purchase contract. Plaintiff's complaint in the present case alleged that defendants committed malpractice by failing to advise him of the statute of limitations for certain other claims that plaintiff may have had against other parties. At the commencement of the trial below, after plaintiff made his opening statement to the jury, defendants moved for nonsuit on the ground that plaintiff had no expert witness and therefore could not prove that defendants' conduct fell below the applicable standard of care. The trial court agreed, granted nonsuit and entered judgment in favor of defendants. Plaintiff appeals. We will affirm.
In July 2004, plaintiff filed his "COMPLAINT FOR DAMAGES FOR MALPRACTICE" (the complaint) against defendants in Monterey County Superior Court. The complaint alleged that in March 2000, plaintiff retained the legal services of defendants "to represent plaintiff as plaintiff's attorney(s) at law ... in the case of Forte v. Powell, M45327...." Forte v. Powell was a lawsuit for specific performance of a real estate purchase contract in which plaintiff sought to enforce his rights under that contract as the prospective buyer.
In 2001, plaintiff had commenced an action against the Hudson firm for legal malpractice stemming from the alleged bad advice given by that law firm during the real estate purchase escrow.
In our nonpublished opinion in Forte v. Albov, supra, F055229, we briefly summarized some of the events preceding the Powells' decision (as sellers of the subject real estate) to cancel the sale. We reiterate here, as background, a portion of that summary:
Plaintiff purportedly followed that advice and, almost immediately thereafter, the Powells cancelled the contract and escrow. Thus, the sale never occurred and plaintiff believed the Hudson firm was at fault for giving him erroneous legal advice. However, as noted above, plaintiff delayed too long before filing suit against the Hudson firm and that firm prevailed based on the statute of limitations.
When plaintiff began to realize that his case against the Hudson firm might be time-barred, he commenced the instant action against defendants.
Prior to trial, defendants filed a motion asking the trial court to dismiss plaintiff's action. The motion was made on the ground that plaintiff could not prove his case of legal malpractice against defendants without expert testimony and that plaintiff was precluded under Code of Civil Procedure section 2034.300 from introducing any expert testimony.
The trial court denied the motion to dismiss, without prejudice. The trial court explained its ruling from the bench: "I'm going to deny the motion because I do believe it's premature. You're certainly welcome to raise it again at trial. But for the moment, the motion is denied."
After the jury was selected, plaintiff made an opening statement in which he presented to the jury what he believed the evidence would show. Plaintiff told the jury he would be demonstrating what "any lay person" would understand an attorney should do, and that "you don't need a whole bunch of expert witnesses to tell you what's wrong simply about basic standard of care." At the end of plaintiff's opening statement, and out of the presence of the jury, defendants renewed their motion to dismiss the action, but this time the motion was formally couched as a motion for a judgment of nonsuit under Code of Civil Procedure section 581c. The trial court agreed with defendants' motion, explaining to plaintiff that "[y]ou have no expert. You can't represent to the jury that you have an expert, and the case simply cannot be proven without an expert."
Plaintiff's timely appeal to the Sixth District Court of Appeal followed. On May 25, 2011, the Supreme Court ordered the appeal transferred to this court.
Under Code of Civil Procedure section 581c, subdivision (a): "Only after, and not before, the plaintiff has completed his or her opening statement, or after the presentation of his or her evidence in a trial by jury, the defendant, without waiving his or her right to offer evidence in the event the motion is not granted, may move for a judgment of nonsuit." A nonsuit on the opening statement is warranted only if it is clear there will be no evidence of sufficient substantiality to support a judgment in favor of the plaintiff. (Willis v. Gordon (1978) 20 Cal.3d 629, 633.)
"`The standard of review for a nonsuit after [the] conclusion of the opening statement is well settled. Both the trial court in its initial decision and the appellate court on review of that decision must accept all facts asserted in the opening statement as true and must indulge every legitimate inference which may be drawn from those facts. [Citations.] A nonsuit at this early stage of the proceedings is disfavored. [Citation.] It can only be upheld on appeal if, after accepting all the asserted facts as true and indulging every legitimate inference in favor of plaintiff, it can be said those facts and inferences lead inexorably to the conclusion plaintiff cannot establish an essential element of its cause of action or has inadvertently established uncontrovertible proof of an affirmative defense. [Citations.]' [Citation.]" (Galanek v. Wismar (1999) 68 Cal.App.4th 1417, 1424.)
The ground on which the trial court granted nonsuit was that plaintiff could not prove his case for legal malpractice without expert testimony. On appeal, plaintiff argues that the trial court erred in so concluding. We disagree.
We begin with a summary of the applicable legal principles. "`In civil malpractice cases, the elements of a cause of action for professional negligence are: "(1) the duty of the attorney to use such skill, prudence and diligence as members of the profession commonly possess; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage. [Citations.]" [Citation.]' [Citations.]" (Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 356-357.)
As a general matter, an attorney's standard of care must be established by expert testimony. "The fact of breach is proved by expert opinion on whether the attorney followed the standards of skill and diligence prevailing in the profession." (1 Witkin, Cal. Procedure, supra, Attorneys, § 291, p. 367.) "In negligence cases arising from the rendering of professional services, as a general rule the standard of care against which the professional's acts are measured remains a matter peculiarly within the knowledge of experts. Only their testimony can prove it, unless the lay person's common knowledge includes the conduct required by the particular circumstances. [Citation.] This rule applies to legal malpractice cases. [Citation.]" (Unigard Ins. Group v. O'Flaherty & Belgum (1995) 38 Cal.App.4th 1229, 1239; accord, Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1093.) The exception to the general rule has been stated elsewhere as follows: "`[W]here the failure of attorney performance is so clear that a trier of fact may find professional negligence unassisted by expert testimony, then expert testimony is not required.' [Citations.]" (Goebel v. Lauderdale (1989) 214 Cal.App.3d 1502, 1508; accord, Day v. Rosenthal (1985) 170 Cal.App.3d 1125, 1146-1147 [expert testimony was not required to sustain a finding of negligence where attorney committed numerous "blatant" and "egregious" violations of professional ethical standards as prescribed by the State Bar Rules of Professional Conduct].)
The case before us plainly comes within the general rule that expert testimony is necessary to prove the applicable standard of care of an attorney. The question of whether defendants' alleged conduct (i.e., failure to advise plaintiff on the statute of limitations regarding potential claims against the Hudson firm) fell below the applicable standard of care was not something that could be resolved by the jury based on mere common sense or general knowledge of laypersons. Rather, an expert witness would have to inform the jury with respect to the applicable standard of care under all the circumstances of this case. We believe some of the relevant circumstances that such an expert would have to consider would include the following: (i) the limited scope of what defendants were hired to do in representing plaintiff in Forte v. Powell; (ii) the extent to which plaintiff had a reasonable basis to expect defendants to engage in a broader legal representation of plaintiff's interests that would include plaintiff's potential claims against other parties and the statute of limitations for such claims; (iii) whether plaintiff had retained other counsel to look into the potential claims against the Hudson firm; and (iv) the extent to which the parties understood that plaintiff would be relying on other counsel with respect to the potential claims against the Hudson firm. These complexities fly in the face of plaintiff's contention that a jury could have readily determined the attorney's standard of care or breach thereof. Quite to the contrary, it is clear that plaintiff could not prove the standard of care in this case in the absence of opinion testimony of an expert witness concerning the standard of care of an attorney.
Defendants point out there was another element of plaintiff's case that could not be proven without expert testimony. In addition to the standard of care for defendants' representation of plaintiff, plaintiff would also have to prove the elements of causation and damages by evidence that but for defendants' negligence, plaintiff would have been successful in the underlying malpractice case against the Hudson firm. (Blanks v. Seyfarth Shaw LLP, supra, 171 Cal.App.4th at p. 357 [referring to this as the trial within a trial]; Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.) To do so here, plaintiff would have to be able prove (among other things) that the Hudson firm's advice during the escrow was "`so legally deficient when it was given that he [or she] may be found to have failed to use "such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake." [Citation.]'" (Dawson v. Toledano (2003) 109 Cal.App.4th 387, 397.) The trial court in our case noted that this issue as well would require expert testimony. We agree. The mere fact that the Powells were able to successfully cancel the transaction after plaintiff sent his letter raising the property boundary issues did not mean that defendants' advice was so clearly or blatantly below the standard of care such that no assistance of an expert witness would be needed by the jury.
We conclude that since plaintiff could not prove his case for legal malpractice without the opinion testimony of an expert witness, and because plaintiff was barred from introducing such evidence pursuant to Code of Civil Procedure section 2034.300, the trial court correctly granted the motion for nonsuit. (Lipscomb v. Krause (1978) 87 Cal.App.3d 970, 975-976 [where plaintiff failed to produce expert testimony on standard of care, grant of nonsuit affirmed].)
We have concluded from the entire record that the trial court properly granted defendants' motion for a judgment of nonsuit. Without an expert, plaintiff could not prove his case—therefore, a judgment of nonsuit was appropriate. Although unnecessary to do so, we now briefly comment on and dispose of several contentions and arguments raised by plaintiff.
First, plaintiff argues that inasmuch as the Court of Appeal determined in Forte v. Albov, that he, as a mere layman, had a reasonable suspicion of wrongdoing which triggered the running of the statute of limitations for his claims against the Hudson firm (see Forte v. Albov, supra, F055229, at pp. *28-29), defendants must have breached the standard of care as a matter of law when they, as attorneys, failed to advise him about the statute of limitations. Plaintiff's argument is flawed for several reasons, including that it confuses the minimum threshold to trigger the statute of limitations—i.e., whether plaintiff had sufficient knowledge or notice of facts to create a suspicion of wrongdoing
Second, plaintiff contends that the trial court was "premature" in granting nonsuit. Plaintiff argues that even though he did not designate his own expert, defendant's expert might have surprised everyone by adopting plaintiff's position that defendants breached the standard of care, or plaintiff might possibly have elicited such expert testimony via cross-examination. Plaintiff's argument is mistaken because unless he was able to prove his case with competent evidence, defendants did not need to put their expert on the stand at all.
Third, plaintiff makes the argument that somehow the proposed jury instructions he submitted to the trial court obviated the need to introduce expert testimony on the applicable standard of care. This argument is without merit. If plaintiff cannot prove his case, his proposed jury instructions are completely irrelevant.
Fourth, plaintiff makes a vague accusation that the trial judge should have disqualified herself. Plaintiff's argument is difficult to decipher, but appears to be premised on the fact that the trial judge denied plaintiff's motion to continue the trial date. However, that denial was apparently based on the trial judge's concern about the approach of the five-year dismissal statute and, in any event, plaintiff has not demonstrated that the denial was unreasonable or an abuse of the court's broad discretion under the circumstances. We fail to see how any lack of impartiality could possibly be inferred from that ruling.
The judgment is affirmed. Costs on appeal are awarded to defendants.
Cornell, Acting P.J. and Detjen, J., concurs.
