On 02/06/2018 BRETT A BERMAN filed a Contract - Other Contract lawsuit against JONAH FRIEDMAN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MITCHELL L. BECKLOFF and LISA HART COLE. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
MITCHELL L. BECKLOFF
LISA HART COLE
BERMAN BRETT A.
LAW OFFICE OF BRETT A. BERMAN
THE BERMAN LAW GROUP APC
THE BERMAN LAW GROUP APC
BERMAN BRETT A.
BERMAN BRETT ALAN
KNAUSS JOANNE MIRRAS
ALLISON JASON J.
Court documents are not available for this case.
Hearing04/16/2021 at 09:00 AM in Department P at 1725 Main Street, Santa Monica, CA 90401; Case Management ConferenceRead MoreRead Less
Docketat 08:30 AM in Department P; Case Management Conference (re relating of case 20SMCV01060) - HeldRead MoreRead Less
Docketat 08:30 AM in Department P; Trial Setting Conference - HeldRead MoreRead Less
Docketat 08:30 AM in Department P; Hearing on Motion for Judgment on the Pleadings - Held - Motion DeniedRead MoreRead Less
DocketMinute Order ( (Hearing on Motion for Judgment on the Pleadings; Trial Settin...)); Filed by ClerkRead MoreRead Less
DocketNotice of Posting of Jury Fees; Filed by JONAH FRIEDMAN (Cross-Complainant)Read MoreRead Less
Docketat 09:00 AM in Department P; Non-Jury Trial - Not Held - Advanced and VacatedRead MoreRead Less
Docketat 09:00 AM in Department P; Final Status Conference - Not Held - Advanced and VacatedRead MoreRead Less
Docketat 08:30 AM in Department P; Hearing on Motion for Judgment on the Pleadings - Held - ContinuedRead MoreRead Less
DocketMinute Order ( (Hearing on Motion for Judgment on the Pleadings; Final Status...)); Filed by ClerkRead MoreRead Less
DocketAnswer To ComplaintRead MoreRead Less
DocketAnswer to Complaint Filed; Filed by Attorney for DefendantRead MoreRead Less
DocketCross-Complaint; Filed by JONAH FRIEDMAN (Cross-Complainant)Read MoreRead Less
DocketProof-Service/SummonsRead MoreRead Less
DocketProof-Service/Summons; Filed by Attorney for PlaintiffRead MoreRead Less
DocketComplaint FiledRead MoreRead Less
DocketCivil Case Cover SheetRead MoreRead Less
DocketSummons; Filed by PlaintiffRead MoreRead Less
DocketSummons Filed; Filed by Attorney for PlaintiffRead MoreRead Less
DocketComplaint; Filed by nullRead MoreRead Less
Case Number: SC128794 Hearing Date: September 04, 2020 Dept: P
Brett A. Berman v. Jonah Friedman, Case No. SC128794
Hearing Date September 4, 2020
Cross-Defendant Berman’s Motion for Judgment on the Pleadings
Cross-defendant Berman represented cross-complainant Friedman in LVNV Funding v. Friedman beginning in November 2015. Friedman alleges Berman failed to file a responsive pleading to a cross-complaint, resulting in an entry of default. Berman previously moved for judgment on the pleadings, which was granted with leave to amend regarding statute of limitations and damages issues. See 2/5/2020 minute order. Berman now moves for judgment on the pleadings as to the entire second amended cross-complaint (2ACC), arguing the previous defects remain.
A motion for judgment on the pleadings may be made on the same ground as those supporting a general demurrer. Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650. The standard for ruling on a motion for judgment on the pleadings is that it appears a party is entitled to judgment as a matter of law. Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322, citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.
A cause of action for professional negligence is subject to a statute of limitations of one year after plaintiff discovers the facts of the wrongful act or omission or four years from the date of the wrongful act or omission, whichever occurs first. Code of Civ. Proc. §340.6. The statute of limitations for professional negligence does not start running until plaintiff suffers actual injury. Johnson v. Haberman & Kassoy (1988) 201 Cal.App.3d 1468, 1474; Adams v. Paul (1995) 11 Cal.4th 583, 585-586.
Berman argues lack of a clearly alleged contract. The first cause of action is essentially a claim for professional negligence, despite the breach of contract label, and is subject to a one-year statute of limitations (§340.6). The cause of action does not clearly set forth a separate, mutually binding oral agreement beyond cross-defendants’ “promise” to timely file a responsive pleading. SACC at ¶11. The statute of limitations for professional negligence applies.
Friedman alleges he suffered “actual damages” because of Berman’s failure to file a responsive pleading until December of 2017. The cross-complaint was filed in February 2018. 2ACC ¶ 19. It is not clear on the face of the complaint that the statute of limitations began running prior to December 2017. Based on the allegations in the 2ACC, the statute of limitations is a question of fact, not properly decided on a motion for judgment on the pleadings.
For the same reason, Friedman has resolved the other deficiency identified in the 2/5/2020 minute order. The cross-complaint adequately alleged damages, alleging both financial injuries and emotional distress through December 2017 because of the entry of default and the efforts to obtain relief. 2ACC ¶19. As the cross-complaint addressed the deficiencies identified in the 2/5/2020 minute order, the motion is DENIED.
THE MATTER IS SET FOR FINAL STATUS CONFERENCE ON 9/4/20, WITH COURT TRIAL SET FOR 9/8/20. DUE TO THE ONGOING COVID-19 PANDEMIC, THE COURT TRIAL WILL NOT BE ABLE TO PROCEED AS SCHEDULED (SEE COURT GENERAL ORDERS). THE PARTIES SHOULD BE PREPARED TO DISCUSS TRIAL ISSUES ON 9/4/20.
DUE TO THE ONGOING COVID-19 PANDEMIC, PARTIES AND COUNSEL ARE STRONGLY ENCOURAGED TO AVOID IN-PERSON APPEARANCES AND TO APPEAR REMOTELY. LA COURT CONNECT IS NOW AVAILABLE.
Case Number: SC128794 Hearing Date: February 05, 2020 Dept: P
Brett A. Berman v. Jonah Friedman, Case No. SC128794
Hearing Date: February 5, 2020
Cross-Defendants’ Motion for Judgment on the Pleadings
Cross-defendant attorneys represented cross-complainant Friedman in Case no. SC124960, in which Friedman was a cross-defendant. Friedman alleges defendants failed to file a timely responsive pleading, resulting in entry of default. The FACC contains causes of action for breach of contract, professional negligence and fraud. Cross-defendants Jason J. Allison and Brett A. Berman move for judgment on the pleadings.
A motion for judgment on the pleadings may be made on the same ground as those supporting a general demurrer. Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650. The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that it appears a party is entitled to judgment as a matter of law. Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322, citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.
A motion for judgment on the pleadings cannot be made “if a pretrial conference order has been entered pursuant to section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits.” Cal. Code of Civ. Proc. §438(e). Courts have discretion to grant leave to file an untimely motion for judgment on the pleadings. Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1063.
Trial was initially scheduled for July 22, 2019, and a final status conference order was issued on July 16, 2019. Though under CCP §438(e), the motion is untimely, the court exercises discretion to hear the motion. It would be inefficient to allow trial on issues and claims without determining whether the complaint is well-pleaded.
An expired statute of limitations is a valid basis for granting judgment on the pleadings if it appears on the face of the complaint or from judicially noticeable matters that the complaint is untimely. E.g. Larson v. UHS of Rancho Springs, Inc. (2014) 230 CA4th 336, 344. An action for professional negligence against an attorney “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[.]” Cal. Code of Civ. Proc. §340.6. A defendant’s fraud in concealing a cause of action against him tolls the statute for as long as plaintiff’s reliance on the misrepresentations is reasonable. Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623.
The court takes judicial notice of the following (per Cal. Evid. Code §452(d)):
- On September 8, 2015 Audrey G. Friedman filed a cross-complaint against Jonah Friedman (Case no. SC124960)
- Default was entered against Jonah Friedman on February 4, 2016
- Friedman, represented by Brett A. Berman and Jason J. Allison, answered the cross-complaint on May 10, 2016
- The court struck the answer on October 25, 2016
Defendants argue Friedman was aware by no later than October 25, 2016 that the May 10, 2016 answer was untimely, since he was present at the court hearing where the answer was struck. They argue a claim for professional negligence based on that untimely answer should have been filed no later than October 25, 2017. The attorneys argue the gravamen of all claims is professional negligence, so the entire cross-complaint (filed 7/6/2018) is untimely under Code of Civ. Proc. §340.6.
Friedman argues the statute was tolled because of actual fraud. The fraud alleged is “cross-defendant Allison lured cross-complainant to believe that he had not engaged in wrongful conduct,” and would “not file a motion to set aside the default but would file an untimely answer to the cross-complaint.” The alleged fraud took place prior to the untimely filing of the answer on May 10, 2016. Friedman does not clarify how he could have reasonably relied on these representations after October 25, 2016. Friedman argues the statute should be tolled because he did not suffer actual damage until the default was set aside, two years after the untimely filing. As explained below, however, it is unclear on the face of the complaint when or whether Friedman suffered damages.
The statute of limitations for the second cause of action began to run on October 25, 2016, when the untimely answer was stricken. That limitations period expired on October 25, 2017, before the FACC was filed. It is unclear how the breach of contract claim differs from the professional negligence claim, since it is based on the same conduct, and no specific contractual term is alleged to have been breached. The breach of contract claim is time-barred. The third cause of action is based on intentional fraud, so the one-year statute of limitations does not apply.
Cross-defendants argue Friedman has not alleged damages. The FACC acknowledges no default judgment was entered. FACC at ¶12. Additionally, the judicially noticeable record in Case no. SC124960 indicates Friedman never filed a motion to set aside the default, and he participated in the action through the bench trial held in December 2019. It is unclear how Friedman suffered any injury as a result of the alleged malpractice.
The motion is GRANTED with ten days leave to amend as to the first cause of action to allege damages and to distinguish the breach of contract claim from the professional negligence claim. The motion is GRANTED without leave to amend as to the second cause of action. The motion is GRANTED with ten days leave to amend as to the third cause of action to allege damages.