                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4067-16T2

PAUL WIEBEL,

          Plaintiff-Appellant,

v.

MORRIS, DOWNING & SHERRED,
LLP and DAVID JOHNSON, ESQ.,

     Defendants-Respondents.
______________________________

                    Argued November 13, 2018 – Decided December 6, 2018

                    Before Judges Haas, Sumners, and Mitterhoff.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Sussex County, Docket No. L-0681-14.

                    Peter A. Ouda argued the cause for appellant.

                    Marshall D. Bilder argued the cause for respondents
                    (Eckert, Seamans, Cherin & Mellott, LLC, attorneys;
                    Christopher J. Carey and Venanzio E. Cortese, on the
                    brief).

PER CURIAM
      Plaintiff Paul Wiebel appeals from the Law Division's May 25, 2017 order

granting summary judgment to defendants Morris, Downing & Sherred, LLP

and David Johnson and dismissing his legal malpractice complaint with

prejudice. We affirm.

                                       I.

      We summarize the following facts from the record, viewing "the facts in

the light most favorable to [plaintiff,] the non-moving party." Globe Motor Co.

v. Igdalev, 225 N.J. 469, 479 (2016) (citing R. 4:46-2(c)). Defendant David

Johnson has been a partner at Morris, Downing & Sherred since 1980. Plaintiff

and Johnson have had a longstanding professional relationship for roughly

twenty-five years on a variety of business matters, some in which Johnson

served as plaintiff's attorney and others in which Johnson loaned money to

plaintiff or to businesses in which plaintiff had invested. The disputes in this

case arise from plaintiff and Johnson's investments in Destiny Plastics, Inc.

("Destiny"), a Nevada corporation with operations and officers in Orange

County, California.

      On March 25, 2002, Destiny and A-1 Business Products, Inc., d/b/a

Premium Financial Services ("A-1") entered into a factoring and security

agreement ("the factoring agreement"), by which A-1 purchased the rights to


                                                                        A-4067-16T2
                                       2
accounts receivable of Destiny.     In 2003, plaintiff purchased one-third of

Destiny's stock for $1.2 million and loaned it $2.5 million. On March 24, 2003,

plaintiff executed a personal guaranty in favor of A-1 in exchange for A-1's

continued financial support of Destiny ("the A-1 guaranty"). Prior to executing

the A-1 guaranty, plaintiff retained defendants to review the guaranty

agreement.

      On October 27 2003, Johnson, as the sole member of Jawbone, LLC

("Jawbone"), executed a sale, lease and repurchase agreement with Destiny,

regarding molds for plastic products.       Per this agreement, Jawbone loaned

Destiny $430,000 "to commence and complete the manufacture of, and to

acquire title to, a mold for plastic cutlery manufactured to specifications

satisfactory to Destiny." The agreement included a personal guaranty signed by

plaintiff as an inducement for Jawbone to enter into the agreement. Plaintiff

also agreed to indemnify Johnson for any defense costs if litigation ensued.

      In 2006, plaintiff discovered that Destiny's controlling shareholder,

director, and CEO had been fraudulently misrepresenting Destiny's financial

condition. After this discovery, the CEO initiated three frivolous retaliatory

lawsuits on behalf of Destiny against plaintiff and others, including Johnson and




                                                                         A-4067-16T2
                                        3
Jawbone, in California ("the Destiny actions"). 1 Plaintiff hired Winston &

Strawn, LLP ("Winston & Strawn"), a California law firm, and Greenberg Rowe

Smith & Davis, LLP ("Greenbaum Rowe"), a New Jersey law firm, to represent

plaintiff, Johnson, and Jawbone in the Destiny actions.

      Thereafter, Winston & Strawn engaged in extensive settlement

negotiations with counsel for Destiny to settle all claims in the Destiny actions .

From January to July 2007, attorneys from Winston & Strawn circulated drafts

of a proposed settlement agreement via email to plaintiff and Johnson. Johnson

responded to some of these emails with questions or comments. For example,

on April 24, 2007, Johnson emailed an attorney from Winston & Strawn about

concerns with language in the proposed settlement agreement, stating: "[I]f you

feel my prior comments have merit, those involved in negotiating and drafting

the agreement should address those points and cause the language to be revised

to eliminate the ambiguities and conflicting terms, and address the other issues

raised." (emphasis in original).

      Eventually, the parties executed a final settlement agreement on

November 26, 2008. The agreement called for Destiny and its CEO to pay



1
  Three other lawsuits were filed in New Jersey and Nevada over the parties'
disputes.
                                                                           A-4067-16T2
                                        4
$750,000 to plaintiff and for plaintiff to relinquish his stock in Destiny. The

agreement also dismissed the claims the parties had against each other in

California and New Jersey and resolved a number of other contractual issues

between the parties.

      Billing records indicate that defendants billed plaintiff for legal work

related to Destiny during this time period.      Defendants billed plaintiff for

"Destiny Matters" in October and November 2016, for telephone conferences

with Winston & Strawn in January 2007, for telephone conferences with

plaintiff regarding Destiny issues in February and March 2007, and for review

of correspondence from Winston & Strawn regarding terms of the settlement

agreement in April and May 2007. Throughout 2008, defendants billed plaintiff

for research, strategy, and litigation to domesticate the settlement agreement in

New Jersey. 2

      In 2008, A-1 discovered that Destiny was in breach of the factoring

agreement. On November 10, 2008, A-1 sent Destiny and plaintiff a letter titled


2
  Winston & Strawn terminated its representation of plaintiff in April 2008 due
to nearly $200,000 in outstanding legal fees. On August 15, 2008, Winston &
Strawn sued plaintiff in California for unpaid legal fees. Plaintiff filed a cross-
complaint against Winston & Strawn for legal malpractice, breach of fiduciary
duty, and breach of contract. On January 31, 2011, Winston & Strawn and
plaintiff settled, with plaintiff agreeing to pay Winston & Strawn $65,000 for
the dismissal of the parties' claims against each other.
                                                                           A-4067-16T2
                                        5
"notice of termination and demand for payment-factoring agreement,"

demanding $1,324,801.64 due under the terms of the factoring agreement. The

letter is stamped as received on November 13, 2008. On July 18, 2012, A-1

filed an action against plaintiff in California for breach of the A-1 guaranty ("the

guaranty action"), which arose from Destiny's breach of the factoring agreement,

seeking damages of $2,575,062.39. Plaintiff retained a different California

attorney to represent him in the guaranty action.

        In a California bench trial held in August 2014, plaintiff argued that A-1's

claim against him was time-barred under California's four-year statute of

limitations for actions arising from written contracts. The court held that the

statute of limitations for A-1's claim against Destiny for breach of the factoring

agreement began to run on July 11, 2008, when "the information available to A-

1 . . . was sufficiently problematic" to put A-1 on notice of the default of the

factoring agreement. Accordingly, A-1's complaint, filed on July 18, 2012, was

untimely.     The court, however, held that plaintiff waived the statute of

limitations through an August 10, 2010 email from his attorney to counsel for

A-1.     Because of plaintiff's waiver, a jury trial was held in October and

November 2014, with the jury returning a verdict in favor of A-1 for $871,803.3


3
    A-1 and plaintiff later settled this judgment.
                                                                            A-4067-16T2
                                          6
                                              II.

      On November 10, 2014, plaintiff filed the complaint against defendants in

this case, alleging legal malpractice, breach of fiduciary duty, and breach of

contract. Plaintiff alleged that, notwithstanding the fact that Johnson was a co-

defendant in the Destiny actions, Johnson acted as his attorney in negotiating

the settlement agreement and negligently failed to ensure that the A-1 guaranty

was extinguished by the settlement agreement.         On September 15, 2015,

defendants filed an answer denying the allegations. Defendants then filed a

motion for summary judgment on December 16, 2016, which plaintiff opposed.

On January 6, 2017, the trial court denied the motion without prejudice to allow

plaintiff to take Johnson's deposition.

      Defendants moved for reconsideration of the denial of summary judgment

on February 3, 2017. Before the trial court rendered a decision on the motion

for reconsideration, defendants withdrew the motion and filed a new motion for

summary judgment on April 25, 2017, which plaintiff also opposed. On May

19, 2017, the trial court held a case management conference and ordered the

following: fact depositions to be completed by September 19, 2017; plaintiff to

provide a supplemental expert report, if necessary, by October 27, 2017;

defendant to submit an expert report by November 30, 2017; expert deposition


                                                                         A-4067-16T2
                                          7
to be completed by January 15, 2018; and all discovery to be completed by

January 31, 2018.

      On May 25, 2017, the trial court held oral argument on defendant's April

25, 2017 motion for summary judgment and rendered an oral decision granting

the motion. First, the trial court held that the statute of limitations began to run

on November 13, 2008, when plaintiff received notice of A-1's demand for

payment, and that plaintiff timely filed a malpractice complaint against

defendants under New Jersey's six-year statute of limitations. Next, the court

found that there was an issue of material fact as to whether an attorney-client

relationship existed between plaintiff and Johnson, citing "several emails in

which Johnson was holding himself out as an attorney acting on behalf of

plaintiff" and records showing that defendants billed plaintiff "for work

conducted on the Destiny litigation from a period beginning around October 12,

2006 through October of 2008."

      The trial court, however, held that plaintiff was unable to establish

proximate causation because of plaintiff's waiver of the statute of limitations in

the guaranty action. The court reasoned: "The statute of limitations on the

guaranty claim had expired. Plaintiff was no longer subject to any obligation

under the guarant[y] as a matter of law. However, plaintiff waived this d efense


                                                                            A-4067-16T2
                                         8
thereby renewing his obligation under the A-1 guarant[y]." Additionally, the

trial court held that plaintiff's expert, Barry E. Levine, Esq., issued a net opinion

with regard to causation, noting that the expert's report did not discuss plaintiff's

waiver of the statute of limitations in the A-1 action. For these two reasons, the

trial court granted defendants' motion for summary judgment.

      On appeal of the trial court's grant of summary judgment, plaintiff raises

the following points for our review:

             [POINT I] SUMMARY JUDGMENT WAS
             IMPROPERLY DENIED AS THERE WERE
             GENUINE ISSUES OF FACT AS TO WHETHER
             THE PLAINTIFF WAIVED THE STATUTE OF
             LIMITATIONS DEFENSE IN THE UNDERLYING
             LAWSUIT.

             POINT  II  SUMMARY    JUDGMENT   WAS
             IMPROPERLY GRANTED BECAUSE DISCOVERY
             HAD BEEN EXTENDED BY THE COURT.

             POINT III SUMMARY JUDGMENT WAS
             INAPPROPRIATE BECAUSE OF THE ERRONEOUS
             CONCLUSION THAT BARRY E. LEVINE ISSUED
             A NET OPINION.

      We review a grant of summary judgment de novo, applying the same

standard as the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320,

330 (2010). Summary judgment must be granted if "the pleadings, depositions,

answers to interrogatories and admissions on file, together with the affidavits, if


                                                                             A-4067-16T2
                                         9
any, show that there is no genuine issue as to any material fact challenged and

that the moving party is entitled to a judgment or order as a matter of law." R.

4:46-2(c). The court considers whether "the competent evidential materials

presented, when viewed in the light most favorable to the non-moving party, are

sufficient to permit a rational factfinder to resolve the alleged disputed issue in

favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 540 (1995).

      Having reviewed the record and applicable legal principles, we agree with

the trial court that plaintiff's expert issued a net opinion with respect to causation

and that plaintiff cannot establish proximate causation as a matter of law. For

these reasons, we find that the trial court properly granted summary judgment

to defendants.

                                              III.

      Although not in the order raised by plaintiff, we first turn to plaintiff's

contention that the trial court erroneously concluded that plaintiff's expert issued

a net opinion with respect to causation. Plaintiff argues that Levine's expert

report was focused on the issue of attorney-client relationship and was subject

to amendment after further fact depositions were completed. He argues that the

trial court improperly struck Levine's opinion with respect to causation, because


                                                                              A-4067-16T2
                                         10
Levine could have amended that portion of his opinion after the close of

discovery. We reject plaintiff's arguments.

      "The admission or exclusion of expert testimony is committed to the

sound discretion of the trial court." Townsend v. Pierre, 221 N.J. 36, 52 (2015)

(citation omitted). N.J.R.E. 703 requires that an expert opinion be based on

"facts or data . . . perceived by or made known to the expert at or before the

hearing." N.J.R.E. 703. "The net opinion rule is a 'corollary of [N.J.R.E. 703]

. . . which forbids the admission into evidence of an expert's conclusions that

are not supported by factual evidence or other data.'" Townsend, 221 N.J. at 53-

54 (alteration in original) (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 583

(2008); see also Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 103-04

(App. Div. 2001) (holding that trial court properly excluded expert report in

legal malpractice action where expert failed to reference any evidential support

of duty of care).

      Applying these standards, we conclude that plaintiff's expert issued net

opinions with respect to breach, causation, and damages. While Levine did

discuss the underlying factual basis for his opinion on the issue of the attorney-

client relationship between plaintiff and Johnson, he failed to do so on the issues

of breach, causation, and damages. With regard to these issues, Levine merely


                                                                           A-4067-16T2
                                       11
provided brief statements of the law, repeated the allegations in plaintiff's

complaint, and made bare conclusions. See Buckelew v. Grossbard, 87 N.J. 512,

524 (1981) ("[A]n expert's bare conclusions, unsupported by factual evidence,

is inadmissible."). Indeed, as noted by the trial court, the expert failed to address

plaintiff's waiver of the statute of limitations in the A-1 action, which is an

essential fact to the issue of proximate causation. 4 For these reasons, we find

that it was well within the trial court's discretion to strike Levine's opinion on

causation as a net opinion.

      We next turn to plaintiff's contention that the trial court erred in holding

that plaintiff could not establish proximate causation as a matter of law. Plaintiff

argues that the trial court improperly resolved issues of disputed fact in

concluding that plaintiff was unable to establish proximate causation because of

his waiver of the statute of limitations in the A-1 action. He contends: "A fact-

finder could find that Johnson's negligence caused the guaranty suit in the first

place, (which it did) and that the fees incurred by [c]ounsel are an element of



4
  To the extent that plaintiff suggests that Levine could amend his expert report
to address these deficiencies, we note that Levine was aware of the issue of the
waiver of the statute of limitations in the A-1 action from the documents he
reviewed, but failed to mention this issue in his report. See Townsend, 221 N.J.
at 57 (finding expert issued net opinion on causation where opinion "diverged
from the evidence").
                                                                             A-4067-16T2
                                        12
damages that are recoverable irrespective of the outcome of the statute of

limitations motion."    He also argues that defendants face the burden of

establishing that A-1 would have filed outside of the statute of limitations even

if his attorney in the guaranty actions had not inadvertently waived the statute

of limitations. We reject plaintiff's arguments.

      To establish proximate causation, a plaintiff must first establish causation

in fact, which "requires proof that the result complained of probably would not

have occurred 'but for' the negligent conduct of the defendant." Conklin v.

Hannoch Weisman, 145 N.J. 395, 417 (1996) (quoting Vuocolo v. Diamond

Shamrock Chemicals Co., 240 N.J. Super. 289, 295 (App. Div. 1990)).

Additionally, a plaintiff "must present evidence to support a finding that

defendant's negligent conduct was a 'substantial factor' in bringing about

plaintiff's injury, even though there may be other concurrent causes of the harm."

Froom v. Perel, 377 N.J. Super. 298, 313 (App. Div. 2005) (quoting Conklin,

145 N.J. at 419). Stated differently, proximate cause is "any cause which in the

natural and continuous sequence, unbroken by an efficient intervening cause,

produces the result complained of and without which the result would not have

occurred." Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 322

(App. Div. 1996) (quotation omitted).


                                                                          A-4067-16T2
                                        13
      Additionally, "in cases involving transactional legal malpractice, there

must be evidence to establish that the negligence was a substantial factor in

bringing about the loss of a gain or benefit from the transaction." Froom, 377

N.J. at 315. A plaintiff who alleges an attorney failed to take steps to protect

his or her interest in a transaction "must present evidence that, even in the

absence of negligence by the attorney, the other parties to the transaction would

have recognized plaintiff's interest and plaintiff would have derived a benefit

from it." Ibid. (citation omitted).

      The burden is on the plaintiff to establish proximate causation "by a

preponderance of the competent, credible evidence and is not satisfied by mere

'conjecture, surmise or suspicion.'" 2175 Lemoine Ave. Corp. v. Finco, Inc.,

272 N.J. Super. 478, 488 (App. Div. 1994) (quoting Long v. Landy, 35 N.J. 44,

54 (1961)). Although issues of proximate causation are typically for the jury to

resolve, "a court may decide the issue as a matter of law where 'no reasonable

jury could find that the plaintiff's injuries were proximately caused ' [by the

defendant's conduct.]'' Broach-Butts v. Therapeutic Alternatives, Inc., 456 N.J.

Super. 25, 40 (App. Div. 2018) (quoting Vega by Muniz v. Piedilato, 154 N.J.

496, 509 (1998)).




                                                                         A-4067-16T2
                                      14
      In this case, we agree with the trial court that plaintiff cannot establish

proximate causation as a matter of law. Even viewing the evidence in the light

most favorable to him, plaintiff submits no evidence supporting that the parties

in the Destiny actions would have agreed to extinguish the A-1 guaranty as part

of the settlement agreement. Indeed, A-1 was not a party to the Destiny actions.

Without such evidence, plaintiff is unable to establish that Johnson's alleged

negligence in advising plaintiff about the settlement agreement was a substantial

factor in causing plaintiff's damages resulting from the guaranty action. See

Froom, 377 N.J. at 315-16 (holding that plaintiff had not established proximate

causation where no evidence showed that other parties would have agreed to

give plaintiff his desired ownership interest in property development); Finco,

272 N.J. Super. at 487-91 (holding that plaintiff had not established proximate

causation because plaintiff did not present sufficient evidence supporting that

other parties to real estate transaction were willing to include plaintiff's desired

terms in agreement).

      Further, in legal malpractice cases, proximate causation must ordinarily

be established by expert testimony. See Froom, 377 N.J. Super. at 318 (holding

that expert testimony was required on the issue of proximate causation where

the legal transaction involved "a complex real estate acquisition and


                                                                            A-4067-16T2
                                        15
development"); Finco, 272 N.J. Super. at 490 (holding that expert testimony was

required to establish proximate causation in legal malpractice case involving

complex commercial transaction); Vort v. Hollander, 257 N.J. Super 56, 61

(App. Div. 1992) (holding that expert testimony was required to establish

proximate causation in legal malpractice case). As discussed above, plaintiff's

expert issued an inadmissible net opinion with respect to proximate causation

and failed to address whether plaintiff's waiver of the statute of limitations in

the guaranty action severed the chain of causation. In legal malpractices cases

involving complex transactions and litigation, such as this case, expert

testimony addressing the particular facts of the case is necessary to aid the trier

of fact in determining the issue of proximate causation. See Froom, 377 N.J.

Super. at 318; Finco, 272 N.J. Super. at 490.

      As noted by the trial court, the undisputed facts establish that plaintiff

would not have been liable in the guaranty action had his attorney in that action

not waived the statute of limitations. In that regard, Johnson did not represent

plaintiff in the guaranty action. Without any admissible expert opinion or other

evidence to the contrary, we find that the inadvertent waiver of the statute of

limitations by plaintiff's attorney in the guaranty actions was a superseding

cause that severed the chain of causation from Johnson's alleged negligence.


                                                                           A-4067-16T2
                                       16
See Komlodi v. Picciano, 217 N.J. 387, 418 (2014) ("A superseding or

intervening act is one that breaks the chain of causation linking a defendant's

wrongful act and an injury or harm suffered by a plaintiff." (internal quotation

omitted)). We reject plaintiff's argument that defendants faced the burden of

establishing that A-1 would have filed outside of the statute of limitations even

if his attorney in the guaranty actions had not inadvertently waived the statute

of limitations. It is plaintiff's burden to prove proximate causation beyond mere

speculation. See Finco 272 N.J. Super. at 488. In this case, plaintiff only

speculates that his waiver of the statute of limitations did not break the chain of

causation, failing to address the undisputed fact that he would not have been

liable in the guaranty action absent this waiver.

      In sum, even when viewing the evidence in the light most favorable to

him, plaintiff is unable to establish that the other parties to the Destiny actions

would have agreed to extinguish plaintiff's liability on the A-1 guaranty, or that

his other attorney's waiver of the statute of limitations did not sever the chain of

causation from Johnson's alleged negligence in advising plaintiff regarding the

settlement agreement. On the record before us, we find that no reasonable jury

could find that plaintiff's alleged damages were proximately caused by Johnson's




                                                                            A-4067-16T2
                                        17
negligence. For these reasons, the trial court correctly held that plaintiff is

unable to establish proximate causation as a matter of law.

      We next address plaintiff's contention that the trial court improperly

granted summary judgment prior to the close of discovery. Although Rule 4:46-

1 permits a party to file a motion for summary judgment before the close of

discovery, "[g]enerally, summary judgment is inappropriate prior to the

completion of discovery." Wellington v. Estate of Wellington, 359 N.J. Super.

484, 496 (App. Div. 2003) (citing Velantzas v. Colgate-Palmolive Co., 109 N.J.

189, 193 (1988)). A party opposing a motion for summary judgment on the

grounds that discovery is incomplete, however, must "demonstrate with some

degree of particularity the likelihood that further discovery will supply the

missing elements of the cause of action." Badiali v. New Jersey Mfrs. Ins. Grp.,

220 N.J. 544, 555 (2015) (quoting Wellington, 359 N.J. Super. at 496). The

party must identify the specific discovery that is still needed. See Trinity Church

v. Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007) ("A party opposing

summary judgment on the ground that more discovery is needed must specify

what further discovery is required, rather than simply asserting a generi c

contention that discovery is incomplete."). "[D]iscovery need not be undertaken




                                                                           A-4067-16T2
                                       18
or completed if it will patently not change the outcome." Minoia v. Kushner,

365 N.J. Super. 304, 307 (App. Div. 2004) (citations omitted).

      In this case, plaintiff fails to specify with sufficient particularity the

additional discovery he seeks to conduct and how such discovery would change

the outcome of this case. Plaintiff points out that under the trial court's May 19,

2017 order, he had time remaining to conduct additional fact depositions and to

submit a supplemental expert report. Plaintiff, however, does not identify any

specific individuals he sought to depose or how additional discovery would aid

his expert in forming an opinion on proximate causation. See Trinity Church,

394 N.J. Super. at 178 (rejecting argument that summary judgment was

premature where briefs in opposition to summary judgment did not specify

additional discovery needed on any disputed issue). Based on our review of the

record, we find that plaintiff fails to show that additional discovery would

establish proximate causation or otherwise change the result of this case. See

Badiali, 220 N.J. at 555; Minoia, 365 N.J. Super. at 307. For these reasons, the

trial court did not err by granting summary judgment prior to the close of

discovery.

      Additionally, although this determination does not undermine the trial

court's grant of summary judgment, we find that the trial court also had an


                                                                           A-4067-16T2
                                       19
independent basis to grant summary judgment because plaintiff's complaint was

time-barred under California's statute of limitations for attorney malpractice.

Defendants argue that New Jersey's choice-of-law rules dictate that California's

statute of limitations govern plaintiff's claims, but that plaintiff's claims are

time-barred under either California's or New Jersey's statute of limitations. 5 The

trial court found that plaintiff timely filed the complaint within New Jersey's

six-year statute of limitations for attorney malpractice, but did not address the

choice-of-law issue. Having considered this issue, we conclude that California's

one-year statute of limitations for attorney malpractice applies and bars

plaintiff's claims.

      We agree with the trial court that the statute of limitations was triggered

on November 13, 2008, when plaintiff received the demand for payment under

the factoring agreement by A-1, under both New Jersey and California law. By

this date, plaintiff had sufficient knowledge to realize that he suffered damages

by the failure to have the A-1 guaranty extinguished by the settlement agreement

in the Destiny actions. See Vision Mortg. Corp. v. Patricia J. Chiapperini, Inc.,


5
   Although defendants primarily argued that the complaint was time-barred
under New Jersey's statute of limitations at oral argument on the summary
judgment motion and in their brief in support of summary judgment, they did
also briefly in their summary judgment brief argue that California's statute of
limitations applied.
                                                                           A-4067-16T2
                                       20
156 N.J. 580, 586 (1999) ("[P]ursuant to the discovery rule, a professional

malpractice claim accrues when: (1) the claimant suffers an injury or damages;

and (2) the claimant knows or should know that its injury is attributable to the

professional negligent advice." (quotation omitted and alteration in original));

Cal. Civ. Proc. Code § 340.6(a).6 Therefore, plaintiff's complaint would be

timely under New Jersey's six-year statute of limitations for attorney

malpractice, N.J.S.A. 2A:14-1, but would be untimely under California's one-

year statute of limitations, Cal. Civ. Proc. Code § 340.6(a). Accordingly, there

is a true conflict of law between New Jersey's and California's statutes of

limitations in this case. See McCarrell v. Hoffmann-La Roche, Inc., 227 N.J.

569, 584 (2017) ("[W]hen a complaint is timely filed within one state's statute

of limitations but is filed outside another state's, then a true conflict is present.").

        "[S]ection 142 of the Second Restatement [of Conflicts of Laws] is now

the operative choice-of-law rule for resolving statute-of-limitations conflicts."


6
    Cal. Civ. Proc. Code § 340.6(a) provides:
              An action against an attorney for a wrongful act or
              omission, other than for actual fraud, arising in the
              performance of professional services shall be
              commenced within one year after the plaintiff
              discovers, or through the use of reasonable diligence
              should have discovered, the facts constituting the
              wrongful act or omission, or four years from the date of
              the wrongful act or omission, whichever occurs first.
                                                                               A-4067-16T2
                                         21
Id. at 574. Applying this test, we find that California's statute of limitations

applies because New Jersey lacks a substantial interest in plaintiff's claims and

California has a more significant relationship to the claims. See MTK Food

Servs., Inc. v. Sirius Am. Ins. Co., 455 N.J. Super. 307, 314 (App. Div. 2018)

(holding that Pennsylvania's statute of limitations for legal malpractice applied

when New Jersey did not have a substantial interest in claims). As in MTK, the

primary connection to New Jersey is that defendants are attorneys licensed in

New Jersey, whereas all other relevant facts point to California. See id. at 314-

15.   The underlying litigations, including the Destiny actions, plaintiff's

malpractice claim against Winston & Strawn, and the guaranty action, took place

in California and involved parties operating in California.             Therefore,

California's one-year statute of limitations applies to bar plaintiff's claims. See

McCarrell, 227 N.J. at 594 (citing Restatement (Second) of Conflicts of Law §

142(2) (Am. Law Inst. 1971)) ("[W]hen New Jersey has no substantial interest

in the litigation, under section 142, our courts will not apply our State's statute

of limitations to save a claim when another state has a more significant

relationship to the case.").

      In sum, we conclude that the trial court properly granted summary

judgment because plaintiff's expert issued a net opinion with respect to causation


                                                                           A-4067-16T2
                                       22
and because plaintiff cannot establish proximate causation on the facts of th is

case as a matter of law. To the extent we have not specifically addressed any of

plaintiff's remaining arguments, we find them without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




                                                                         A-4067-16T2
                                      23
