Filed 6/24/14 Lusk v. Baker CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


LA VERNE LUSK,                                                       B241890

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                      Super. Ct. No. NC056327)
         v.

RICHARD M. BAKER,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Judith A. VanderLans, Judge. Affirmed.



         Law Offices of George T. Kelly and George T. Kelly for Plaintiff and Appellant.

         Thompson Coe & O’Meara, Frances M. O’Meara and Stephen M. Caine for
Defendant and Respondent.




                                       __________________________
      La Verne Lusk appeals from the trial court’s judgment dismissing as untimely her
legal malpractice complaint against Attorney Richard M. Baker, whom she alleged
mishandled her workers’ compensation claim. We affirm.

                            FACTS AND PROCEEDINGS

      Appellant La Verne Lusk worked as a Delta Airlines flight attendant for 20 years
until she retired from the airline in 1993. In June 2002, appellant saw Dr. Michael Gray
for her exposure to toxic chemicals while working as a flight attendant. In a medical
report dated June 18, 2002, Dr. Gray wrote that appellant claimed work-related exposure
to:

      “machine and cutting oils, solvents, degreasers, cleaning fluids, paints and
      varnishes, coatings, gasoline and other fuels, certainly jet fuel, insect, rodent and
      weed killers, other chemical liquids or vapors, gasses and by-products thereof,
      smoke from burning materials, engine exhaust and carbon monoxide, loud noises
      and vibration, extremes of heat and cold, heavy lifting, long-term standing,
      repetitive motions all day, job stress and pressure, infectious materials, x-rays
      from materials carried in the hold, and radioactive materials as well. [¶] She lists
      as significant exposures during the course of her work including carbotransport
      materials, high altitudes, cigarette smoke, and aircraft oils and other hazardous
      materials. She did eat on the plane and wore protective gear when advised
      including a respirator and face mask in her training for emergency evacuations.
      After 1993, these things were available, prior to that, they were not. [¶] She
      indicates that she feels the problems associated with her immune system, nervous
      systems, hearing, diabetes, eyes, memory loss, bones and muscle problems, in her
      belief, are all related to the exposures sustained while working as a flight
      attendant, including the ingestion of the methanol.” (Italics added.)




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       Notwithstanding Dr. Gray’s report that appellant attributed her symptoms to her
work as a flight attendant, appellant did not pursue a workers’ compensation claim in
2002. Instead, two years later in 2004, appellant saw Dr. Gary Ordog for her exposure to
toxic chemicals while working as a flight attendant. According to appellant, upon
consulting with Dr. Ordog she learned from him for the first time in December 2004 that
her medical symptoms were related to her on-the-job exposure to toxic chemicals.
       Two months later in February 2005, appellant met respondent Richard Baker and
told him about Dr. Ordog’s December 2004 medical findings. The following month on
March 16, 2005, appellant retained respondent to represent her in pursuing a workers’
compensation claim against Delta Airlines.1 Over two years later in September 2007,
respondent filed appellant’s application for workers’ compensation benefits for her work-
related injuries caused by “Exposure to noxious/toxic aircraft cabin air contaminants.”
       During the administrative hearing in May 2009 on her application for benefits,
appellant testified that Dr. Ordog, whom she met in 2004, was the first doctor with whom
she discussed any connection between her medical symptoms and her employment.
Contrary, however, to her testimony in the administrative hearing, appellant had
previously testified in her pre-hearing deposition “that both Dr. Ordog and Dr. Gray told
her that her physical problems were related to her work as a flight attendant.”
Additionally, Delta Airlines impeached appellant during the hearing with Dr. Gray’s June
2002 report, in which she indicated to him that she felt her symptoms were related to her
work-related exposure to toxic chemicals.



1      The parties dispute when appellant retained respondent, but we rely on the
allegations of appellant’s first amended complaint because this appeal is from judgment
on the pleadings of that complaint. (Ott v. Alfa-Laval Agri, Inc. (1995) 31 Cal.App.4th
1439, 1448 [“Review of a judgment on the pleadings requires the appellate court to
determine, de novo and as a matter of law, whether the complaint states a cause of action.
For purposes of this review, we accept as true all material facts alleged in the complaint.
Denial of leave to amend after granting a motion for judgment on the pleadings is
reviewed for abuse of discretion.”].)

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       The administrative law judge presiding over the hearing disbelieved appellant’s
assertion about when she learned of the connection between her work and her symptoms.
He found appellant learned of the connection when she met Dr. Gray in June 2002, not
when she met Dr. Ordog in 2004. The administrative law judge’s findings stated:
“Applicant became aware of the industrial relationship between her medical condition(s)
on or about (at least) June 18, 2002, when she was seen by Michael Gray, M.D. [¶]
Applicant was later seen by Gary Ordog, M.D., in 2004 and thereafter filed her
Application for Adjudication of Claim. [¶] Applicant’s testimony as to her date of
knowledge of the industrial relationship to her condition(s) was not convincing and
tended to be ‘selective’.” Because appellant waited more than one year to file her
application for benefits after acquiring “knowledge of the industrial relationship of her
condition(s) to her work,” the administrative law judge found her application was
untimely.
       Appellant filed with the Workers’ Compensation Appeals Board a petition for
reconsideration. In her petition, which she filed in pro per, she argued Dr. Gray’s 2002
report described an old injury from her ingestion of methanol, but Dr. Ordog’s December
2004 report covered new injuries. In support of her petition, she submitted a letter
written by Dr. Gray in June 2009. He wrote that his examination of appellant in 2002
was “related to the methanol ingestion that had occurred [in 1987]. [¶] At that time, I
was not privy to information that later came forward relating to additional toxic
exposures that were contributing factors to her neurologic injury. [¶] . . . [¶] There is
nothing in [my records] that would suggest that I had concluded that there were illnesses
or toxins at play that related to anything other than the methanol exposure.” Appellant
summarized the contents of Dr. Gray’s letter as “confirm[ing] that prior to December
2004, only old claim issues (methanol injury) were discussed. The new claim diagnosed
by Dr. Gary Ordog on December 7, 2004 are the only issues” which the Workers’
Compensation Appeals Board ought to consider.
       The Workers’ Compensation Appeals Board denied appellant’s petition for
reconsideration. The board noted that the law attached great weight to the administrative

                                              4
law judge’s finding that appellant lacked credibility because of her “selective” testimony
about when she learned of the connection between her employment and her injuries. The
board found that Dr. Gray’s and Dr. Ordog’s findings described a “cumulative” injury of
which appellant first learned when saw Dr. Gray in June 2002. The board thus affirmed
the administrative law judge’s ruling that appellant’s application for workers’
compensation benefits was untimely.
       In June 2010, appellant filed her complaint alleging legal malpractice by
respondent Baker. Filed as a limited civil case, her complaint’s sole substantive
allegation was the following: “On September 14, 2007, [respondent] undertook to
prosecute an action in Worker’s Compensation on behalf of [appellant]. At said time,
[respondent] knew or should have known that the applicable statute of limitations had run
on the said action and that no viable cause of action existed. Nonetheless, [respondent]
prosecuted the action thereby causing [appellant] to expend funds in support of her claim
and ancillary thereto.”
       Respondent moved for summary judgment. He argued appellant had first
consulted with him in September 2007, at which time she told him about Dr. Ordog’s
December 2004 report, but not Dr. Gray’s June 2002 report. His motion further argued
that he learned while investigating appellant’s application for workers’ compensation
benefits that she had met with Dr. Gray, but Dr. Gray did not disclose his June 2002
report despite respondent’s subpoena to Dr. Gray for all of the doctor’s records involving
his care of appellant. He learned about Dr. Gray’s June 2002 report during the workers’
compensation administrative hearing when Delta Airlines used it to impeach appellant’s
testimony on when she learned about a connection between her employment and her
symptoms. It was, according to respondent, appellant’s impeachment during the hearing
that resulted in the administrative law judge’s ruling denying her benefits on the ground
her application was untimely.
       Appellant opposed respondent’s motion for summary judgment. In her response
to respondent’s separate statement of undisputed material facts, which she filed in pro
per, she acknowledged as undisputed that she first consulted with respondent in

                                             5
September 2007 – thereby contradicting her first amended complaint, filed three months
later in which she alleged she retained respondent in March 2005.2 She also
acknowledged as undisputed that she told respondent she first learned her symptoms were
work-related from Dr. Ordog in December 2004. She further accepted as undisputed that
Dr. Gray’s June 2002 report was used to impeach her testimony about when she learned
of the connection between her work and her symptoms. And finally, she asserted that
“Regardless of when [she] may be said to have had knowledge of her injuries, 2002 or
2004, [her] workers’ compensation claim was statutorily time-barred at the time
[respondent] agreed to be retained by [her] in 2007.”
       After filing her opposition to respondent’s motion for summary judgment,
appellant amended her complaint. The court denied the motion as moot.3 She moved her
action from a court of limited jurisdiction to one of general jurisdiction. Additionally,
she added allegations addressing the date she retained respondent. Her original
complaint was arguably ambiguous by alleging that in September 2007 respondent
“undertook to prosecute an action in Workers’ Compensation on behalf of” appellant,
without specifically stating the date that appellant retained respondent.4 (Italics added.)


2     Appellant attributes the contradiction to the attorney who supposedly filed her
response to the separate statement, but appellant filed her response in pro per.

3      Because the court did not grant respondent’s motion for summary judgment,
appellant contends we should not take the motion into account, but appellant cites no
authority to support that contention.

4       Respondent interprets appellant’s allegation as meaning appellant retained
respondent in September 2007, but that reads too much into the allegation. Read
carefully, the allegation discusses when respondent began to pursue appellant’s workers’
compensation claim, but does not specifically address when appellant retained
respondent. In full, appellant’s allegation states: “Defendant, Richard M. Baker is an
attorney licensed to practice law in the State of California. On or about September 14,
2007, Defendants undertook to prosecute an action in Worker’s Compensation on behalf
of Plaintiff. At said time, Defendants knew or should have known that the applicable
statute of limitation had run on the said action and that no viable cause of action existed.
Nonetheless, defendants prosecuted the action thereby causing Plaintiff to expend funds
                                              6
Her first amended complaint ended the ambiguity by alleging she retained respondent on
March 16, 2005, three months after Dr. Ordog informed her in December 2004 of the
connection between her employment and her symptoms. But, according to appellant,
respondent negligently waited until 2007 to file appellant’s application for workers’
compensation benefits, a delay which made the application untimely.
       Respondent thereafter moved for judgment on the pleadings. Noting the
implication of appellant’s amended allegation of when she retained respondent,
respondent wrote “Rather than claim that [the workers’ compensation application] should
not have been filed because it was time-barred [as she alleged in her original complaint,
appellant] now claims that it was not time barred. She attempts to blame its dismissal for
untimeliness on [respondent because] he did not file it fast enough after he was retained.
[¶] To allege this, [appellant] changed the date she alleges that she retained” respondent.
Respondent argued appellant’s amended complaint established that the statute of
limitations for her workers’ compensation claim expired before appellant retained him.
He noted that the workers’ compensation proceedings had found that appellant learned of
the connection between her symptoms and her work when Dr. Gray examined her in June
2002. Thus, the statute of limitations for her workers’ compensation claim expired one
year later in June 2003. The trial court agreed, and entered judgment on the pleadings
for respondent without leave to amend, finding that collateral estoppel barred appellant’s
complaint. This appeal followed.

                                      DISCUSSION

       Appellant’s first amended complaint alleged respondent agreed to represent her in
her workers’ compensation case on March 16, 2005. The statute of limitations for an
employee to file a workers’ compensation claim is one year from the time the employee
knew, or reasonably should have known, about a link between the employee’s job and


in support of her claim and ancillary thereto. Within the year last past, Defendants
ceased to represent Plaintiff.”

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symptoms. (Lab. Code, §§ 5405, subd. (a), 5412, 3208.1; City of Fresno v. Workers’
Comp. Appeals Bd. (1985) 163 Cal.App.3d 467, 471 [whether an employee knew or
should have known injury was industrially caused is a question of fact].) Thus, if
appellant’s workers’ compensation claim had accrued more than one year before she
retained respondent in March 2005, her compensation claim was already time-barred
under the one-year statute of limitation when she retained him. Consequently, any delay
attributable to respondent in filing appellant’s application for workers’ compensation
benefits was not the proximate cause of her failing to recover workers’ compensation
benefits. Here, the administrative law judge found that appellant learned of a connection
between her work as a flight attendant and her symptoms no later than June 2002. Thus,
her time to file for workers’ compensation benefits ended in June 2003. Accordingly,
respondent was not responsible for the untimeliness of her application for benefits.
       The trial court granted judgment on the pleadings because it found appellant was
collaterally estopped from relitigating June 2002 being the date when she learned about
the connection between her work and her symptoms.5 The trial court ruled correctly.
Collateral estoppel, which is also known as issue preclusion, applies when five elements
are satisfied. “First, the issue sought to be precluded from relitigation must be identical
to that decided in a former proceeding. Second, this issue must have been actually
litigated in the former proceeding. Third, it must have been necessarily decided in the
former proceeding. Fourth, the decision in the former proceeding must be final and on
the merits. Finally, the party against whom preclusion is sought must be the same as, or
in privity with, the party to the former proceeding.” (Johnson v. GlaxoSmithKline, Inc.,
supra, 166 Cal.App.4th at pp. 1507-1508.) Those elements were satisfied here. The


5      The trial court also found res judicata, also known as claims preclusion, barred
appellant’s complaint for legal malpractice. Because appellant’s workers’ compensation
claim against former employer Delta Airlines involved a different party and different
cause of action from her claim for legal malpractice against respondent, we decline to
address res judicata’s application here. (See Johnson v. GlaxoSmithKline, Inc. (2008)
166 Cal.App.4th 1497, 1507, 1516-1517 [res judicata bars “relitigation of the same cause
of action in a second suit between the same parties or parties in privity with them”].)
                                              8
same issue was involved: When did appellant learn of the connection between her work
and her symptoms? The workers’ compensation proceedings fully litigated that issue in a
proceeding in which appellant fully participated, reaching a final decision on the merits.
(See 7 Witkin, Cal. Procedure (3d ed. 1985) Judgment, § 190, p. 623 [“The rule of issue
preclusion, sometimes referred to as collateral estoppel . . . is that a party ordinarily may
not relitigate an issue that he fully and fairly litigated on a previous occasion.”].)
Accordingly, appellant cannot state a cause of action for legal malpractice against
respondent because whether one relies on her first amended complaint, in which she
alleges she retained respondent in March 2005, or her earlier admission in her opposition
to summary judgment, in which she acknowledges as undisputed that she first met with
respondent in September 2007, her application for benefits was time-barred as of June
2003, well before she retained respondent (be it in March 2005 or September 2007).
       Appellant contends respondent negligently failed to argue in the workers’
compensation proceedings that Dr. Gray’s June 2002 report covered only her symptoms
from ingesting methanol. According to appellant, Dr. Ordog’s December 2004 report
covered new and different work-related symptoms from toxins other than methanol,
thereby triggering a new accrual date by which to apply for workers’ compensation
benefits. In principle, exposure to different toxins might constitute more than one
compensable work-related injury. (General Dynamics Corp. v. Workers’ Comp. Appeals
Board (1999) 71 Cal.App.4th 624, 626-627 [pulmonary disease caused by exposure to
ammonia and asbestos].) But the record does not support that principle’s application
here. The administrative law judge received both Dr. Gray’s 2002 report and Dr.
Ordog’s 2004 report into evidence. Thus, the distinction, if any, to be drawn between the
nature of the injuries was laid before the administrative law judge. Also, appellant
testified in the administrative hearing that she first learned in December 2004 about a
connection between her symptoms and her job from Dr. Ordog. But the administrative
law judge discredited her testimony as “selective.” She appealed the administrative law
judge’s adverse ruling to the Workers’ Compensation Appeals Board. Pursuing that
appeal in pro per, appellant told the board that Dr. Ordog’s 2004 report involved new

                                               9
work-related symptoms and Dr. Gray’s June 2002 report covered only “old claim issues
(methanol injury).” The board nevertheless affirmed the administrative law judge’s
finding. Appellant cannot show the causation element of malpractice if she made the
same arguments that she asserts respondent should have made, for she offers only
speculation that respondent would have succeeded where she failed. The remedy for the
administrative law judge’s and Workers’ Compensation Appeal Board’s purportedly
wrongful rejection of her application for benefits was a judicial appeal from their
purported error, not a malpractice action against respondent.
       Ruffalo v. Patterson (1991) 234 Cal.App.3d 341, 344 is distinguishable. There, an
attorney negligently advised his client in a marital dissolution to characterize her separate
property as community property, a characterization the court adopted. (Id. at pp. 342-
343.) In the client’s later malpractice action against the attorney, the attorney cited the
court’s ruling that the property was community property as binding on the client under
collateral estoppel, thereby barring the malpractice action. (Id. at p. 343.) On appeal, the
Ruffalo court rebuffed the attorney’s reliance on collateral estoppel. The Ruffalo court
reasoned that a negligent attorney cannot use a court’s adoption of an attorney’s
negligently-made argument as a bar to the client’s malpractice complaint against the
attorney for having made that argument. (Id. at p. 343.) Here, in contrast, the two
medical reports were before the administrative law judge and appellant in pro per argued
to the Workers’ Compensation Appeals Board that Dr. Ordog’s 2004 report involved new
symptoms unrelated to her ingestion of methanol, but the board rejected her argument.

                                      DISPOSITION

       The judgment is affirmed. Respondent to recover his costs on appeal.



                                                  RUBIN, J.
WE CONCUR:


              BIGELOW, P. J.                                                   FLIER, J.

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