Search

Attributes

This case was last updated from Los Angeles County Superior Courts on 04/22/2021 at 01:06:35 (UTC).

JOHN MILLER, ET AL. VS MARTIN D. GROSS, ET AL.

Case Summary

On 09/20/2019 JOHN MILLER filed a Contract - Professional Negligence lawsuit against MARTIN D GROSS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are BARBARA M. SCHEPER, BARBARA A. MEIERS and CHRISTOPHER K. LUI. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******3496

  • Filing Date:

    09/20/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Professional Negligence

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

BARBARA M. SCHEPER

BARBARA A. MEIERS

CHRISTOPHER K. LUI

 

Party Details

Plaintiffs and Cross Defendants

THE MILLER FAMILY TRUST

CITY LIGHTS FINANCIAL EXPRESS INC

ESCOBAR-MILLER CHOLIQUE

MILLER JOHN

CITY LIGHTS FINANCIAL EXPRESS INC.

Defendants and Cross Plaintiffs

CORVI JR. A. STEPHEN AS TRUSTEE OF THE ALFRED STEPHEN CORVI JR LIVING TRUST

CORVI JR. A. STEPHEN LIVING TRUST

GROSS MARTIN D. DBA LAW OFFICES OF MARTIN D. GROSS

INTEGRATED LENDER SERVICES

APB PROPERTIES LLC

CORVI JR. A. STEVEN AS TRUSTEE OF THE ALFRED STEPHEN CORVI JR. LIVING TRUST

GROSS MARTIN D.

CORVI JR. A. STEPHEN AS TRUSTEE OF THE ALFRED STEPHEN CORVI JR. LIVING TRUST

CORVI A. STEPHEN JR.

INTERGRATED LENDER SERVICES

Not Classified By Court

LAW OFFICES OF MARTIN D. GROSS A PROFESSIONAL CORPORATION ERRONEOUSLY SUED AS MARTIN D. GROSS DBA LAW OFFICES OF MARTIN D. GROSS

Attorney/Law Firm Details

Plaintiff and Cross Defendant Attorneys

ORTEGA ROCKY

ORTEGA ROCKY VICTOR

Defendant and Not Classified By Court Attorneys

SAUNDERS JENNIFER

SAUNDERS JENNIFER K.

HUMES JACK THOMAS

HUMES JACK T.

GROSS MARTIN D.

EVANS ELIZABETH

EVANS ELIZABETH A.

Defendant and Cross Plaintiff Attorneys

HUMES JACK THOMAS

HUMES JACK T.

GROSS MARTIN D.

 

Court Documents

Status Report

3/23/2021: Status Report

Notice of Ruling

3/9/2021: Notice of Ruling

Answer

12/18/2020: Answer

Request for Entry of Default / Judgment

11/20/2020: Request for Entry of Default / Judgment

Notice of Ruling

9/3/2020: Notice of Ruling

Notice and Acknowledgment of Receipt

6/12/2020: Notice and Acknowledgment of Receipt

Amended Complaint - AMENDED COMPLAINT (2ND)

4/23/2020: Amended Complaint - AMENDED COMPLAINT (2ND)

Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER)

3/20/2020: Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER)

Case Management Statement

2/28/2020: Case Management Statement

Request - REQUEST REQUEST FOR ENTRY OF DEFAULT

12/13/2019: Request - REQUEST REQUEST FOR ENTRY OF DEFAULT

Notice of Rejection Default/Clerk's Judgment

1/6/2020: Notice of Rejection Default/Clerk's Judgment

Proof of Personal Service

11/18/2019: Proof of Personal Service

Challenge To Judicial Officer - Peremptory (170.6)

11/22/2019: Challenge To Judicial Officer - Peremptory (170.6)

Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW RE: PEREMPTORY CHALLENGE)

11/26/2019: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW RE: PEREMPTORY CHALLENGE)

Notice of Case Reassignment/Vacate Hearings

11/26/2019: Notice of Case Reassignment/Vacate Hearings

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE PEREMPTORY CHALLENGE) OF 10/02/2019

10/2/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE PEREMPTORY CHALLENGE) OF 10/02/2019

Notice of Case Reassignment/Vacate Hearings

10/2/2019: Notice of Case Reassignment/Vacate Hearings

Summons - SUMMONS ON COMPLAINT

9/20/2019: Summons - SUMMONS ON COMPLAINT

78 More Documents Available

 

Docket Entries

  • 05/28/2021
  • Hearing05/28/2021 at 08:30 AM in Department 76 at 111 North Hill Street, Los Angeles, CA 90012; Case Management Conference

    Read MoreRead Less
  • 05/28/2021
  • Hearing05/28/2021 at 08:30 AM in Department 76 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

    Read MoreRead Less
  • 05/28/2021
  • Hearing05/28/2021 at 08:30 AM in Department 76 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Terminating Sanctions

    Read MoreRead Less
  • 03/26/2021
  • Docketat 09:30 AM in Department 76, Christopher K. Lui, Presiding; Hearing on Motion for Terminating Sanctions - Held - Continued

    Read MoreRead Less
  • 03/26/2021
  • Docketat 09:30 AM in Department 76, Christopher K. Lui, Presiding; Case Management Conference - Not Held - Continued - Court's Motion

    Read MoreRead Less
  • 03/26/2021
  • Docketat 09:30 AM in Department 76, Christopher K. Lui, Presiding; Order to Show Cause Re: Failure to File Proof of Service (of 2nd Amended Complaint as to defendants Intergrated Lender Services and APB Properties LLC) - Not Held - Continued - Court's Motion

    Read MoreRead Less
  • 03/26/2021
  • Docketat 08:30 AM in Department 76, Christopher K. Lui, Presiding; Order to Show Cause Re: Failure to File Proof of Service (of 2nd Amended Complaint as to defendants Intergrated Lender Services and APB Properties LLC) - Not Held - Advanced and Continued - by Court

    Read MoreRead Less
  • 03/26/2021
  • Docketat 08:30 AM in Department 76, Christopher K. Lui, Presiding; Case Management Conference - Not Held - Advanced and Continued - by Court

    Read MoreRead Less
  • 03/26/2021
  • DocketMinute Order ( (Hearing on Motion for Terminating Sanctions; Case Management ...)); Filed by Clerk

    Read MoreRead Less
  • 03/23/2021
  • DocketRequest for Dismissal; Filed by John Miller (Plaintiff); Cholique Escobar-Miller (Plaintiff)

    Read MoreRead Less
97 More Docket Entries
  • 11/18/2019
  • DocketProof of Personal Service; Filed by John Miller (Plaintiff)

    Read MoreRead Less
  • 10/02/2019
  • Docketat 3:14 PM in Department 30, Barbara M. Scheper, Presiding; Court Order

    Read MoreRead Less
  • 10/02/2019
  • DocketNotice of Case Reassignment/Vacate Hearings; Filed by Clerk

    Read MoreRead Less
  • 10/02/2019
  • DocketMinute Order ( (Court Order Re Peremptory Challenge)); Filed by Clerk

    Read MoreRead Less
  • 10/02/2019
  • DocketCertificate of Mailing for ((Court Order Re Peremptory Challenge) of 10/02/2019); Filed by Clerk

    Read MoreRead Less
  • 09/30/2019
  • DocketChallenge To Judicial Officer - Peremptory (170.6); Filed by John Miller (Plaintiff)

    Read MoreRead Less
  • 09/20/2019
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

    Read MoreRead Less
  • 09/20/2019
  • DocketCivil Case Cover Sheet; Filed by John Miller (Plaintiff); Cholique Escobar-Miller (Plaintiff); City Lights Financial Express Inc. (Plaintiff) et al.

    Read MoreRead Less
  • 09/20/2019
  • DocketSummons (on Complaint); Filed by John Miller (Plaintiff); Cholique Escobar-Miller (Plaintiff); City Lights Financial Express Inc. (Plaintiff) et al.

    Read MoreRead Less
  • 09/20/2019
  • DocketComplaint; Filed by John Miller (Plaintiff); Cholique Escobar-Miller (Plaintiff); City Lights Financial Express Inc. (Plaintiff) et al.

    Read MoreRead Less

Tentative Rulings

Case Number: 19STCV33496    Hearing Date: March 26, 2021    Dept: 76

Defendant allegedly committed various acts of legal malpractice and breach of fiduciary duty in representing the various Plaintiffs.

Defendants Stephen Corvi Jr. Alfred individually and as trustee of the Alfred Stephen Corvi Jr. Living Trust filed a Cross-Complaint alleging that Plaintiffs John Miller and Lights Financial Express, Inc. failed to pay the monthly payments on two promissory notes when due.

Defendant Law Offices of Martin D. Gross filed a Cross-Complaint alleging that Plaintiffs John Miller and Chlolique Escobar-Miller failed to pay legal fees.

Defendant Law Offices of Martin D. Gross, a Professional Corporation (erroneously sued and served as Martin D. Gross dba Law Offices of Martin D. Gross) for an order imposing evidentiary, issue and/or terminating sanctions against Plaintiff, a contempt finding, and the imposition of monetary sanctions.

TENTATIVE RULING

Defendant Law Offices of Martin D. Gross’s motion for imposing evidentiary, issue and/or terminating sanctions is MOOT due to the voluntary dismissal without prejudice of moving Defendant.

Defendant’s request for monetary sanctions against Plaintiff and Plaintiff’s counsel is GRANTED in the reduced amount of $1,900, jointly and severally. Sanctions are to be paid to Defendant’s counsel within 20 days.

ANALYSIS

Motion For Evidentiary, Issue and/or Terminating Sanctions, A Contempt Finding and Monetary Sanctions

Defendant Law Offices of Martin D. Gross, a Professional Corporation (erroneously sued and served as Martin D. Gross dba Law Offices of Martin D. Gross) for an order imposing evidentiary, issue and/or terminating sanctions against Plaintiff, as set forth in the notice of motion, a contempt finding, and the imposition of monetary sanctions in the amount of $3,510.00 with the consequence of dismissal if such sanctions are not paid within 10 days.

The basis for this motion is that Plaintiff John Miller failed to obey this Court’s October 1, 2020 order that Plaintiff answer, without objections, all Form Interrogatories, Special Interrogatories, and Request for Production of Documents, as well as produce all documents by October 10, 2020. Plaintiff was also ordered to pay total sanctions of $802.50 by November 15, 2020. Plaintiff failed to comply with any portion of the Court’s order. (See Declaration of Jennifer Saunders, ¶¶ 6-9; Exh. F.)

The court has the authority to impose sanctions against a party that engages in the misuse of the discovery process. (Code Civ. Proc., § 2023.030.) This includes failing to respond to an authorized method of discovery and disobeying a court order to provide discovery. (Code Civ. Proc. §§ 2023.010 (d) and (g).) A party engaging in such conduct may be subject to monetary, issue and/or evidentiary, and terminating sanctions. (Code Civ. Proc. §§ 2023.030(a), (b) (c) and (d).)

Where a party fails to obey an order compelling responses, “ the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction . . . In lieu of or in addition to that sanction, the court may impose a monetary sanction. . . .” (Code Civ. Proc., § 2030.290(c); § 2031.300(c).) Indeed, the court may impose terminating sanctions after a party’s failure to comply with one court order to produce discovery if it is an “attempt[ ] to tailor the sanction to the harm caused by the withheld discovery.” (Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1618-19.)

"[T]he question before this court is not whether the trial court should have imposed a lesser sanction; rather, the question is whether the trial court abused its discretion by imposing the sanction it chose. [Citation.] Moreover, imposition of a lesser sanction would have permitted [defendants] to benefit from their stalling tactics. [Citation.] The trial court did not abuse its discretion by tailoring the sanction to the particular abuse. [Citation.]" ( Id. at pp. 36-37.)

(Collisson, supra, 21 Cal.App.4th at 1620.)

In deciding whether to impose a terminating sanction, the trial court is to consider the totality of the circumstances: “conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.” (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.)

Here, disobedience of only one discovery order would normally not warrant terminating sanctions. Yet, it does appear that Plaintiff is evading his obligation to provide verified responses.

Accordingly, the Court continued the hearing on the motion for imposing evidentiary, issue and/or terminating sanctions to this date. Plaintiff John Miller was ordered to serve verified responses, without objection, and produce documents by March 19, 2021. The Court noted that if Plaintiff has not complied by this date, the Court will address which of the sanctions Defendant seeks is appropriate, including and up to terminating sanctions. Defendant to file a status report by March 22, 2021. The Court indicated that it intended to impose monetary sanctions in an amount to be determined at the March 26, 2021 hearing.

On March 23, 2021, Defendant filed a status report indicating that Plaintiff had not served any responses. However, also on March 23, 2021, Plaintiff filed a dismissal without prejudice as to moving Defendant Martin D. Gross dba Law Offices of Martin D. Gross. Accordingly, the motion for evidentiary, issue and/or terminating sanctions is MOOT.

Defendant’s request for monetary sanctions against Plaintiff and Plaintiff’s counsel is GRANTED in the reduced amount of $1,900 (8 hours at $230/hour, plus $60 filing fee), jointly and severally. (See Declaration of Jennifer K. Saunders, ¶ 10.) Sanctions are to be paid to Defendant’s counsel within 20 days.

Case Number: 19STCV33496    Hearing Date: March 04, 2021    Dept: 76

Defendant allegedly committed various acts of legal malpractice and breach of fiduciary duty in representing the various Plaintiffs.

Defendant Law Offices of Martin D. Gross, a Professional Corporation (erroneously sued and served as Martin D. Gross dba Law Offices of Martin D. Gross) for an order imposing evidentiary, issue and/or terminating sanctions against Plaintiff, a contempt finding, and the imposition of monetary sanctions.

TENTATIVE RULING

The hearing on Defendant Law Offices of Martin D. Gross’s motion for imposing evidentiary, issue and/or terminating sanctions is CONTINUED to March 26, 2021 at 9:30 AM. Plaintiff John Miller is ordered to serve verified responses, without objection, and produce documents by March 19, 2021. If Plaintiff has not complied by this date, the Court will address which of the sanctions Defendant seeks is appropriate, including and up to terminating sanctions. Defendant is to file a status report by March 22, 2021. While the Court is not inclined to hold Plaintiff in contempt yet, if Plaintiff completely fails to comply with the Court’s order, that circumstance may change.

ANALYSIS

Motion For Evidentiary, Issue and/or Terminating Sanctions, A Contempt Finding and Monetary Sanctions

Defendant Law Offices of Martin D. Gross, a Professional Corporation (erroneously sued and served as Martin D. Gross dba Law Offices of Martin D. Gross) for an order imposing evidentiary, issue and/or terminating sanctions against Plaintiff, as set forth in the notice of motion, a contempt finding, and the imposition of monetary sanctions in the amount of $3,510.00 with the consequence of dismissal if such sanctions are not paid within 10 days.

The basis for this motion is that Plaintiff John Miller failed to obey this Court’s October 1, 2020 order that Plaintiff answer, without objections, all Form Interrogatories, Special Interrogatories, and Request for Production of Documents, as well as produce all documents by October 10, 2020. Plaintiff was also ordered to pay total sanctions of $802.50 by November 15, 2020. Plaintiff failed to comply with any portion of the Court’s order. (See Declaration of Jennifer Saunders, ¶¶ 6-9; Exh. F.)

The court has the authority to impose sanctions against a party that engages in the misuse of the discovery process. (Code Civ. Proc., § 2023.030.) This includes failing to respond to an authorized method of discovery and disobeying a court order to provide discovery. (Code Civ. Proc. §§ 2023.010 (d) and (g).) A party engaging in such conduct may be subject to monetary, issue and/or evidentiary, and terminating sanctions. (Code Civ. Proc. §§ 2023.030(a), (b) (c) and (d).)

Where a party fails to obey an order compelling responses, “ the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction . . . In lieu of or in addition to that sanction, the court may impose a monetary sanction. . . .” (Code Civ. Proc., § 2030.290(c); § 2031.300(c).) Indeed, the court may impose terminating sanctions after a party’s failure to comply with one court order to produce discovery if it is an “attempt[ ] to tailor the sanction to the harm caused by the withheld discovery.” (Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1618-19.)

"[T]he question before this court is not whether the trial court should have imposed a lesser sanction; rather, the question is whether the trial court abused its discretion by imposing the sanction it chose. [Citation.] Moreover, imposition of a lesser sanction would have permitted [defendants] to benefit from their stalling tactics. [Citation.] The trial court did not abuse its discretion by tailoring the sanction to the particular abuse. [Citation.]" ( Id. at pp. 36-37.)

(Collisson, supra, 21 Cal.App.4th at 1620.)

In deciding whether to impose a terminating sanction, the trial court is to consider the totality of the circumstances: “conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.” (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.)

Here, disobedience of only one discovery order would normally not warrant terminating sanctions. Yet, it does appear that Plaintiff is evading his obligation to provide verified responses.

Accordingly, the hearing on the motion for imposing evidentiary, issue and/or terminating sanctions is CONTINUED to March 26, 2021 at 9:30 AM. Plaintiff John Miller is ordered to serve verified responses, without objection, and produce documents by March 19, 2021. If Plaintiff has not complied by this date, the Court will address which of the sanctions Defendant seeks is appropriate, including and up to terminating sanctions. Defendant is to file a status report by March 22, 2021. While the Court is not inclined to hold Plaintiff in contempt yet, if Plaintiff completely fails to comply with the Court’s order, that circumstance may change.

The Court intends to impose monetary sanctions in an amount to be determined at the March 26, 2021 hearing.

Case Number: 19STCV33496    Hearing Date: October 01, 2020    Dept: 76

Defendant allegedly committed various acts of legal malpractice and breach of fiduciary duty in representing the various Plaintiffs.

Defendant Law Offices of Martin D. Gross, a Professional Corporation (erroneously sued and served as Martin D. Gross dba Law Offices of Martin D. Gross) moves to compel Plaintiff to provide responses to form and special interrogatories, set one and requests for production of documents, set one.

TENTATIVE RULING

Conditioned upon Defendant paying an additional $60 filing fee, Defendant Law Offices of Martin D. Gross’s motion to compel responses to form and special interrogatories is GRANTED. Plaintiff John Miller is ordered to provide code-compliant, verified responses without objection within 10 days.

Defendant’s requests for sanctions against Plaintiff only is GRANTED in the requested amount of $487.50 (1.5 hours at $245/hour plus $120 in filing fees—see Saunders Dec., ¶ 10). Sanctions are to be paid to Defendant’s counsel within 10 days.

This order shall not become effective until Defendant pays an additional $60 filing fee.

Defendant Law Offices of Martin D. Gross’s motion to compel responses to requests for production of documents is GRANTED. Plaintiff John Miller is ordered to provide code-compliant, verified responses without objection within 10 days.

Defendant’s requests for sanctions against Plaintiff only is GRANTED in the requested amount of $305. Sanctions are to be paid to Defendant’s counsel within 10 days.

ANALYSIS

Motions To Compel Responses To Form and Special Interrogatories

Defendant Law Offices of Martin D. Gross, a Professional Corporation (erroneously sued and served as Martin D. Gross dba Law Offices of Martin D. Gross) moves to compel Plaintiff to provide responses to form and special interrogatories, set one.

This motion should have been reserved and filed as two separate motions: (1) motion to compel responses to form interrogatories; and (2) motion to compel responses to special interrogatories, and requests sanctions.  Combining multiple motions under the guise of one motion with one hearing reservation manipulates the Court Reservation System and unfairly jumps ahead of other litigants. Moreover, combining motions to avoid payment of separate filing fees deprives the Court of filing fees it is otherwise entitled to collect.

When a party to whom interrogatories are directed fails to respond, under CCP § 2030.290(b) a party propounding the interrogatories may move for an order compelling a response. A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (Code Civ. Proc., § 2030.290(a).) For a motion to compel initial responses, no meet and confer is required. All that needs to be shown is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Sup. Ct. (1980) 111 Cal.App.3d 902, 905-06.) Here, as of the date of the filing of the motions, Defendant had not received any responses to special interrogatories from Plaintiff. (See Declaration of Jennifer K. Saunders, ¶ 7.) Accordingly, Defendant is entitled to an order compelling responses. The motion to compel responses to form and special interrogatories is GRANTED. Plaintiff John Miller is ordered to provide code-compliant, verified responses without objection within 10 days.

Defendant’s requests for sanctions against Plaintiff only is GRANTED in the requested amount of $487.50 (1.5 hours at $245/hour plus $120 in filing fees—see Saunders Dec., ¶ 10). Sanctions are to be paid to Defendant’s counsel within 10 days.

This order shall not become effective until Defendant pays an additional $60 filing fee.

Motions To Compel Responses To Requests For Production of Documents

Defendant Law Offices of Martin D. Gross, a Professional Corporation (erroneously sued and served as Martin D. Gross dba Law Offices of Martin D. Gross) moves to compel Plaintiff to provide responses to requests for production of documents, set one, and requests sanctions.

When a party to whom an inspection demand is directed fails to respond, under CCP § 2031.300(b) a party making the demand may move for an order compelling a response to the inspection demand. A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (Code Civ. Proc, § 2031.300(a).)  For a motion to compel initial responses, no meet and confer is required.  All that needs to be shown is that a set of requests for production was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served.  (See, e.g., Leach v. Sup. Ct. (1980) 111 Cal.App.3d 902, 905-06.) Here, as of the date of the filing of the motions, Defendant had not received any responses to requests for production of document from Plaintiff. (See Declaration of Jennifer K. Saunders, ¶ 7.) Accordingly, Defendant is entitled to an order compelling responses. The motion to compel responses to requests for production of documents is GRANTED. Plaintiff John Miller is ordered to provide code-compliant, verified responses without objection within 10 days.

Defendant’s requests for sanctions against Plaintiff only is GRANTED in the requested amount of $305 (1 hour at $245/hour plus $60 in filing fees—see Saunders Dec., ¶ 10). Sanctions are to be paid to Defendant’s counsel within 10 days.  

Case Number: 19STCV33496    Hearing Date: August 26, 2020    Dept: 76

Defendant Law Offices of Martin D. Gross, a Professional Corporation (erroneously sued and served as Martin D. Gross dba Law Offices of Martin D. Gross)’s demurrer to the Second Amended Complaint is SUSTAINED without leave to amend as to the second and sixth causes of action. The demurrer to the fourth cause of action is OVERRULED. The demurrer to the fifth cause of action is MOOT.

Defendant’s motion to strike is DENIED as to Page 3, line 9 through Page 4, line 13 (agency allegations); Page 5, lines 10-12 (definition of an Assignment); Page 11, line 13 through page 12, line 3 (entire fourth cause of action for financial abuse); Prayer, Page 13, line 27, ¶ d (interest on judgments); Prayer, Page 14, line 1, ¶ e (attorney’s fees); Prayer, Page 14, lines 3-4, ¶ g (legal malpractice damages); Prayer, Page 14, lines 6-7, ¶ h (fraud damages); Prayer, Page 14, lines 8-9, ¶ i (financial abuse damages); Prayer, Page 14, lines 10-12, ¶ j (fraud damages); Prayer, Page 14, lines 13-14, ¶ k (civil conspiracy damages).

The motion to strike is GRANTED without leave to amend as to Page 4, lines 19-20 (“Date of Determination”); Page 6, lines 20-25; page 7, lines 1-13; Page 8, lines 9-25, ¶¶ 6-10; Page 9, lines 1-3; Page 9, lines 11-14: (allegations referring to The Miller Family Trust Dated March 29, 2007 and City Lights Financial Express, Inc.); Page 12, line 6 through 26 (entire fifth cause of action for conversion; Prayer, Page 13, line 26, ¶ 6 (punitive damages);

The motion to strike is MOOT as to Page 13, lines 1-20 (entire sixth cause of action for conspiracy)

Defendant is to answer the remaining allegations in the 2AC within 10 days.

ANALYSIS

Demurrer

Meet and Confer

The Declaration of Jennifer K. Saunders reflects that the meet and confer requirement set forth in CCP § 430.41 was satisfied.

Discussion

Defendant Law Offices of Martin D. Gross, a Professional Corporation (erroneously sued and served as Martin D. Gross dba Law Offices of Martin D. Gross) demurs to the Second Amended Complaint (“2AC”) on the following grounds.

1. Allegations As to Plaintiffs The Miller Family Trust Dated March 29, 2007 and City Lights Financial Express, Inc.

Defendant argues that Plaintiffs The Miller Family Trust Dated March 29, 2007 and City Lights Financial Express, Inc. were dismissed from this action, so the inclusion of allegations relating to these Plaintiffs, including damages, are improper ad the demurrer must be sustained without leave to amend as to all references to these two plaintiffs.

A motion to strike, not a demurrer, is the proper vehicle to attack such allegations which do not dispose of an entire cause of action. A demurrer does not lie to only part of a cause of action or a particular type of damage or remedy. (See Kong v. City of Hawaiian Gardens Redevelopment Agency (2003) 108 Cal.App.4th 1028, 1046; PH II, Inc. v. Superior Court (Ibershof) (1995) 33 Cal.App.4th 1680, 1682.) The proper procedure is to bring a motion to strike the substantively defective allegation. (Id. at 1682-83.)

In any event, since these two Plaintiffs have been dismissed, any allegations pertaining to damages sustained by the Plaintiffs are inoperative.

This ground for demurrer is OVERRULED.

2. Second Cause of Action (Fraud).

Plaintiff argues that Defendant Corvi executed an Assignment of Judgment to Plaintiff Miller and his brother as compensation for monies owed to Plaintiff by Corvi. (Complaint, Page 5:7-9.) Plaintiff and his brother hired Defendant Gross to collect on the Corvi Judgment. (Id. at Page 5:15-18.) Defendant Gross represented to Plaintiff and his brother that the Assignment was either fraudulent, worthless, or that nothing had been recovered from the Assignment. (Id. at Page 5:23-26.)

Plaintiff alleges that Defendant Gross intentionally misrepresented to Plaintiff the value of the Assignment that was sued in the Sheriff’s sale of the real property, and both Gross and Corvi kept the proceeds belonging to Miller for themselves. (2AC, ¶ 16.)

A. Re: Statute of Limitations.

Defendant argues that the three-year statute of limitations set forth in CCP § 338 bars this cause of action.

The limitations period for Powell's fraud and negligent misrepresentation claims is three years. (Code Civ. Proc., § 338, subd. (d).) The limitations period begins to run only when the aggrieved party discovers “the facts constituting the fraud.” (Ibid.; see Royal Thrift & Loan Co. v. County Escrow, Inc. (2004) 123 Cal.App.4th 24, 28 [20 Cal. Rptr. 3d 37] [three-year limitations period for fraud claims in Code Civ. Proc., § 338, subd. (d), incorporates “the delayed discovery rule”].)

(Broberg v. The Guardian Life Ins. Co. of America (2009) 171 Cal.App.4th 912, 920.)

Notably, the tolling provisions set forth in CCP § 340.6(a)(2)(continued representation by attorney), does not apply to this common law cause of action.

Although Plaintiff alleges that the sale of the property encumbered by the Assignment was held by the LASD in July 2017 (Page 6:1), the Sheriff’s Deed Upon Sale, attached as Exh C to the 2AC reflects that the Sheriff’s Sale occurred on July 20, 2016. 2AC, Exh. C[1]. Plaintiff alleges that the Sheriff’s Deed is dated November 24, 2015 (Complaint, Page 6:9), but November 24, 2015 is the date the writ of execution issued. (Exh. C.) The Sheriff’s Deed of Sale itself indicates that the sale occurred on July 20, 2016. (Id.) On that date, the fact that the Assignment of Judgment was not worthless was a matter of public knowledge, by virtue of the Sheriff’s Sale. The three-year statute of limitations would begin to run no later than July 20, 2016 date, and would have expired in July 20, 2019.

Plaintiff alleges that Defendant intentionally misled Plaintiff by informing them that no money or deed had been recovered from the sal.ee. (2AC, Page 6:7-9.) However, Plaintiff also admits that the means to discover the truth were readily available, alleging that he “subsequently checked with the Court Services Division of the L.A. Sheriff’s Department and was informed that CORVI had recovered the monies from the winning bid on the sale as well as a deed to the real property.” (Id. at 6:12-14.) Plaintiff also admits that he then met with Homan Mombasser, Esq., with the law firm that handled the proceeds from the Sheriff’s Sale. (Id. at 6:15-16.) Mombasser reviewed the Assignment, then gave Plaintiff a copy of the check for the sale proceeds, which had been made out to Defendant Gross. (Id. at 6:18-19.)

Plaintiff has admitted that he had the means of discovering Defendant’s fraud regarding the value of the assignment after Plaintiff knew the Sheriff’s Sale had occurred. Plaintiff did not factually allege why he could not, with reasonable diligence, have discovered this fact prior to September 20, 2016—three years before this action was filed on September 20, 2019. (Woodring v. Basso (1961) 195 Cal.App.2d 459, 466-67; (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.)

"Again, discovery and knowledge are not convertible terms and whether there has been a discovery within the contemplation of the statute is a question of law to be determined by the court from the facts pleaded. It is not, therefore, sufficient for the plaintiff to aver that he was ignorant of the facts at the time of their occurrence and was not informed of them until within the three years. He must show that the acts of fraud were committed under circumstances that he would not be presumed to have knowledge of them, it being the rule that if he has 'notice or information of circumstances which would put him on inquiry which if followed would lead to  [*467]  knowledge, or that the facts were presumptively within his knowledge, he will be deemed to have had actual knowledge of the facts.'" In the present case plaintiff has not shown that she could not have discovered with reasonable diligence prior to three years before the suit. ( Code Civ. Proc., § 338, subd. 4; see 1 Witkin, California Procedure, § 143, pp. 652, 653; 2 Witkin, California Procedure, § 479, p. 1465; Lady Washington C. Co. v. Wood, 113 Cal. 482 [43 P. 809]; Original Min. & Mill. Co. v. Casad, 210 Cal. 71 [290 P. 456]; Hobart v. Hobart Estate Co., 26 Cal.2d 412 [159 P.2d 958].) Therefore her claim is on its face barred by the statute of limitations.

(Woodring v. Basso (1961) 195 Cal.App.2d 459, 466-67 [bold emphasis and underlining added].)

In order to rely on the discovery rule for delayed accrual of a cause of action, “[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.” (Citation omitted.) In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to “show diligence”; “conclusory allegations will not withstand demurrer.” (Citation omitted.)

(Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808 [bold emphasis added].)

Plaintiff has had sufficient opportunity to plead around the statute of limitations and has not done so.

Accordingly, the second cause of action, as pled, is time-barred.

(B. Re: Failure To Plead Facts Sufficient To Constitute A Cause of Action.

Defendant also argues that fraud is not pled with sufficient particularity.

“To establish a claim for deceit based on intentional misrepresentation, the plaintiff must prove seven essential elements: (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff. (Citations omitted.)” (Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498 [italics omitted].)

Fraud must be pleaded with specificity rather than with “ ‘general and conclusory allegations.’ ” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184 [132 Cal. Rptr. 2d 490, 65 P.3d 1255].)  The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (Lazar v. Superior Court, supra, 12 Cal.4th at p. 645.)

We enforce the specificity requirement in consideration of its two purposes. The first purpose is to give notice to the defendant with sufficiently definite charges that the defendant can meet them. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216 [197 Cal. Rptr. 783, 673 P.2d 660].) The second is to permit a court to weed out meritless fraud claims on the basis of the pleadings; thus, “the pleading should be sufficient ‘ “to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.” ’ ” (Id. at pp. 216–217.)

(West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.)

The 2AC still does not sufficient plead exactly what Defendant Gross said to Plaintiff, when, why such representations were known to be false when made, and Plaintiffs actual reliance to his detriment.

“Actual reliance occurs when a misrepresentation is ‘“an immediate cause of [a plaintiff's] conduct, which alters his legal relations,”’ and when, absent such representation, ‘“he would not, in all reasonable probability, have entered into the contract or other transaction.”’ [Citations.] ‘It is not … necessary that [a plaintiff's] reliance upon the truth of the fraudulent misrepresentation be the sole or even the predominant or decisive factor in influencing his conduct. … It is enough that the representation has played a substantial part, and so has been a substantial factor, in influencing his decision.’” (Citation omitted.)

(Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1256.)

Conclusion

The demurrer to the second cause of action is SUSTAINED without leave to amend.

3. Fourth Cause of Action (Financial Abuse).

Defendant argues that, although the Court overruled Defendant’s demurrer to the fourth cause of action, Plaintiff amended this cause of action without seeking leave to amend. However, Defendant does not identify the manner in which it was amended, nor how the amendment prejudiced Defendant as to a cause of action which the Court ruled was sufficiently pled.

The demurrer to the fourth cause of action is OVERRULED.

4. Fifth Cause of Action (Conversion)

Defendant argues that this cause of action was added for the first time in the 2AC without leave of court. The Court agrees that this was improper and will order the fifth cause of action stricken in connection with the motion to strike.

As such, the demurrer to the fifth cause of action is MOOT.

6. Sixth Cause of Action (Civil Conspiracy).

In sustaining the demurrer to the civil conspiracy cause of action in the 1AC, the Court granted leave to amend to allege conspiracy in connection with a particular cause of action. However, the Court ruled that conspiracy itself is not a stand-alone cause of action. Plaintiff failed to heed this ruling.

The demurrer to the sixth cause of action is SUSTAINED without leave to amend.

Motion To Strike

Meet and Confer

No meet and confer declaration was submitted in connection with the motion to strike. The Declaration of Elizabeth A. Evans in support of the demurrer reflects that the meet and confer requirement set forth in CCP § 435.5 was satisfied as to punitive damages and attorney’s fees only, but not prejudgment interest. See Evans Decl., Exh. B thereto.

Nonetheless, the Court will address all items noticed in the motion to strike. “A determination by the court that the meet and confer process was insufficient is not grounds to grant or deny the motion to strike.” (Code Civ. Proc., § 435.5(a)(4).)

Discussion

Defendant Law Offices of Martin D. Gross, a Professional Corporation moves to strike the following portions of the 2AC:

u Page 3, line 9 through Page 4, line 13 (allegations): DENIED. Defendant does not quote the language to be stricken. To the extent Defendant argues that these agency allegations were added without leave to amend, the Court deems these to be an imperfect attempt to allege conspiracy liability (see, e.g., Page 4, line 13 re: aiding and abetting), as to which the Court granted leave. These allegations will be permitted.

u Page 4, lines 19-20 (“Date of Determination”): GRANTED without leave to amend. This allegation is irrelevant. (Code Civ. Proc., ¶ 436(a).) Although a date of determination may be relevant to a quiet title or declaratory relief cause of action, neither is asserted in the 2AC.

u Page 5, lines 10-12 (definition of an Assignment): DENIED. Defendant did not present an argument as to why this should be stricken.

u Page 6, lines 20-25; page 7, lines 1-13; Page 8, lines 9-25, ¶¶ 6-10; Page 9, lines 1-3; Page 9, lines 11-14: (allegations referring to The Miller Family Trust Dated March 29, 2007 and City Lights Financial Express, Inc.): GRANTED without leave to amend. In ruling on the demurrer to the 1AC, the Court found that these entities’ claims were time-barred.

u Page 11, line 13 through page 12, line 3 (entire fourth cause of action for financial abuse): DENIED. See demurrer re: fourth cause of action.

u Page 12, line 6 through 26 (entire fifth cause of action for conversion): GRANTED without leave to amend. Plaintiff did not obtain leave to add this new cause of action, which is improper. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order. (People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785 [57 Cal. Rptr. 227] [leave to amend complaint does not constitute leave to amend to add new defendant].) The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend. (See Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015 [84 Cal. Rptr. 3d 642] [acknowledging rule but finding it inapplicable where new cause of action “directly responds” to trial court's reason for sustaining the demurrer].) Here, the new cause of action is not within the scope of the order granting leave to amend.

(Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

u Page 13, lines 1-20 (entire sixth cause of action for conspiracy): MOOT given the ruling on the demurrer to the sixth cause of action. u Prayer, Page 13, line 26, ¶ 6 (punitive damages): GRANTED without leave to amend. Plaintiff did not even attempt to allege that Defendant acted with malice, oppression or fraud as those terms are defined in Civil Code § 3294(c)(1) – (3). Plaintiff has had sufficient chances to do so.

u Prayer, Page 13, line 27, ¶ d (interest on judgments): DENIED. This appears to be a request for post-judgment interest, to which Plaintiff is entitled.

u Prayer, Page 14, line 1, ¶ e (attorney’s fees): DENIED. “[A]s a general rule, attorney fees are not recoverable as costs unless they are authorized by statute or agreement.” People ex rel. Dept. of Corporations v. Speedee Oil Change Systems, Inc. (2007) 147 Cal. App. 4th 424, 429. Because the fourth cause of action for Elder Financial Abuse is viable (see demurrer), Plaintiff might be able to recover attorney’s fees pursuant to Welf. & Inst. Code § 15657.5(a).

u Prayer, Page 14, lines 3-4, ¶ g (legal malpractice damages); Prayer, Page 14, lines 6-7, ¶ h (fraud damages); Prayer, Page 14, lines 8-9, ¶ i (financial abuse damages); Prayer, Page 14, lines 10-12, ¶ j (fraud damages); Prayer, Page 14, lines 13-14, ¶ k (civil conspiracy damages): DENIED. Jury instructions will prevent windfall or double recovery.

Defendant is to answer the remaining allegations in the 2AC within 10 days.


[1] “[F]acts appearing in exhibits attached to the complaint will also be accepted as true and, if contrary to the allegations in the pleading, will be given precedence. (Citation omitted.)” (Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624, 1627.)

Case Number: 19STCV33496    Hearing Date: March 11, 2020    Dept: 76

Demurrer

Meet and Confer

The Declaration of Elizabeth A. Evans reflects that the meet and confer requirement set forth in CCP § 430.41 was satisfied. See Exh. 6 thereto.

Request For Judicial Notice

Defendant’s request that the Court take judicial notice of various documents in Frank Ultimo v. City Lights Financial Express Inc., LASC BC512719 and The Bank of New York Mellon v. Finkelstein, Venture County Superior Court Case No. 56-2014-00458130-CU-OR-VTA is GRANTED per Evid. Code § 452(d)(court records).

Discussion

Defendant Law Offices of Martin D. Gross, a Professional Corporation (erroneously sued and served as Martin D. Gross dba Law Offices of Martin D. Gross) demurs to the First Amended Complaint (“1AC”) on the following grounds:

1. Entire First Amended Complaint[1].

Defendant argues that Plaintiffs lack standing as to the entire 1AC because they are not the real party in interest.

Only a real party in interest has standing to prosecute an action, except as otherwise provided by statute. Section 367 states, “Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” “A real party in interest ordinarily is defined as the person possessing the right sued upon by reason of the substantive law. [Citation.]” (Citation omitted.) A real party in interest must have an actual, substantial interest in the subject matter of the action. (Citation omitted.) A person who has no interest in the subject matter of an action, and therefore no right to relief, has no standing and cannot state a cause of action, so a general demurrer will be sustained. (Citation omitted.)

City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 208.

A. Re: Plaintiffs City Lights and The Miller Family Trust.

Defendant argues that there are no allegations in the 1AC specifically identifying either City Lights Financial Express, Inc. or The Miller Family Trust Dated March 29, 2007 on their own behalf.

This argument is incorrect as to the First Cause of Action for Legal Malpractice. Paragraphs 4, 5, 8, and 9 allege that Defendant Gross committed legal malpractice in connection with using an assignment of property to bid on real property without telling Miller. Paragraphs 6, 8, and 9 allege that Defendant Gross committed legal malpractice in connection by settling a case in which City Lights Financial Express Inc. was named as defendant, without authorization. Paragraphs 7, 8, and 9 allege that Defendant Gross committed legal malpractice by failing to do discovery in a case in which the Co-Trustees of the Miller Family Trust dated March 29, 2007 was a defendant, resulting in a judgment against it. While Defendant is correct that a trust is not a legal entity with standing to sue, Plaintiff may Miller may amend to substitute in the co-trustees of the Trust. “At common law, where a cause of action is prosecuted on behalf of an express trust, the trustee is the real party in interest because the trustee has legal title to the cause.” Saks v. Damon Raike & Co. (1992) 7 Cal.App.4th 419, 427.

The demurrer to the first cause of action on the ground of lack of standing is OVERRULED as to Plaintiffs Miller and City Lights Financial Express, Inc. and is SUSTAINED with leave to amend as to Plaintiff Miller Family Trust dated March 29, 2007.

As to the second, third, fourth and eighth causes of action asserted against demurring Defendant Gross, there are no allegations on behalf of either City Lights Financial Express, Inc. or The Miller Family Trust Dated March 29, 2007.

The demurrer to the second, third, fourth and eighth causes of action is SUSTAINED without leave to amend as to Plaintiffs City Lights Financial Express, Inc. and The Miller Family Trust Dated March 29, 2007, unless Plaintiffs demonstrate a reasonable possibility of successful amendment.

B. Re: Plaintiff John Miller.

Defendant argues that Plaintiff Miller was not a party to either the Bank of New York Mellon case, nor the Ultimo case, and thus, he is not the real party in interest for either of those claim “which have been interwoven into the first cause of action for legal malpractice.” However, as noted above, Plaintiff Miller has standing as to the first cause of action based upon Defendant Gross’ acquisition and sale of the real property. A demurrer does not lie to a part of a cause of action.

“A demurrer must dispose of an entire cause of action to be sustained.” Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 119.

A demurrer does not lie to only part of a cause of action or a particular type of damage or remedy. See Kong v. City of Hawaiian Gardens Redevelopment Agency (2003) 108 Cal.App.4th 1028, 1046; PH II, Inc. v. Superior Court (Ibershof) (1995) 33 Cal.App.4th 1680, 1682. The proper procedure is to bring a motion to strike the substantively defective allegation. Id. at 1682-83.

2. First Cause of Action (Legal Malpractice).

A. Re: Statute of Limitations.

Defendant argues that this cause of action is barred by the statute of limitations set forth in CCP § 340.6. The version of CCP § 340.6 in effect when this action was filed[2] on September 20, 2019 read as follows:

(a) An action against an attorney for a wrongful act or omission, other than for actual fraud[3], 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. . . . Except for a claim for which the plaintiff is required to establish his or her factual innocence, in no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist:  (1) The plaintiff has not sustained actual injury.  (2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.  (3) The attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney, except that this subdivision shall toll only the four-year limitation.  (4) The plaintiff is under a legal or physical disability which restricts the plaintiff's ability to commence legal action. (b) In an action based upon an instrument in writing, the effective date of which depends upon some act or event of the future, the period of limitations provided for by this section shall commence to run upon the occurrence of that act or event.

(Bold emphasis and underlining added.)

Defendant argues that demurring Defendant Gross allegedly acted wrongfully in connection with: (1) the March 27, 2014 assignment (1AC, ¶¶ 4-5, 8-25, 40-56); (2) Settlement in Frank Ultimo v City Lights Financial Express Inc., entered into on July 8, 2015 (RJN, Exh. B); and (3) the pre-April 2017 representation provided in Bank of New York Mellon v. Maria Finkelstein, et al. (RJN, Exhs. E-F).

Defendant argues that Plaintiffs discovered or should have discovered the facts leading to the instant action well over one year before the action was filed on September 20, 2019. Defendant argues that judgment was rendered in the Bank of New York Mellon case in October 2016, the settlement in the Ultimo case was entered into on July 8, 2015, and the bid was made at the Sheriff’s sale in July of 2016. Original Complaint, Exh. B[4]; RJN Exhs. B, E-F. Defendant argues that, because Plaintiff Miller alleges that he was familiar with and involved in these three actions, the only conclusion is that Plaintiffs were well aware of, discovered, or should have discovered all facts upon which the instant action is based well before September 20, 2019.

Defendant argues that there is no applicable tolling provision, as the attorney-client relationship terminated and any damages were incurred more than one year prior to September 20, 2019. Defendant argues that the relationship between Plaintiff Miller and Defendant Gross ended in June 29, 2018 relative to the March 27, 2014 Assignment, as pled in ¶ 11 of the original Complaint. Defendant argues that the relationship actually ended well before that based on the allegation that moving Defendant informed Plaintiffs repeatedly that the Assignment had no value and that no recovery had been obtained. 1AC, ¶¶ 5, 12-13. Also, the two lawsuits terminated in April/May 2017. Defendant obtained an order of withdrawal of counsel of record on May 23, 2017 as to the Ultimo action. RJN, Exh. C. With regard to the Bank of New York Mellon action, judgment was entered in February 2017, and it was Plaintiff’s current counsel who represented Plaintiffs in that action from April 2017 onward. RJN, Exh. F.

Defendant also argues that the cause of action against Defendant attorney accrued upon the appreciable and actual harm flowing from the attorney’s negligence. Defendant argues that this occurred no later than October 2016.

Here, the 1AC alleges that Defendant Gross continued to represent Miller in the collection and handling of the Assignment and Gross never terminated collection efforts or stopped his advising to Miller on the assignment, continuing discussions with Plaintiff into the period of one year before the filing of the lawsuit. 1AC, ¶ 10. The Court notes that ¶ 11 of the Complaint alleged that Gross continued to represent John Miller and City Lights Financial Express “until a date after June 29, 2018.” This is not an allegation that the attorney-client relationship terminated on June 29, 2018. The allegation that Gross continued to represent Miller in connection with the handling of the Assignment up to one year prior to the filing of the Complaint is sufficient to allege tolling of the statute of limitations, such that the first cause of action for legal malpractice asserted by Miller based upon Gross’ utilizing the Assignment for his own benefit without Plaintiff Miller’s knowledge is timely under CCP § 340.6(a)(2). Whether or not Plaintiff Miller can prove this is not relevant on demurrer. The sole issue raised by a general demurrer is whether the facts pleaded state a valid cause of action, not whether they are true. No matter how unlikely or improbable, plaintiff's allegations must be accepted as true for the purpose of ruling on the demurrer. (Citation omitted.) Furthermore, plaintiff's possible inability or difficulty in proving the allegations of the complaint is of no concern. (Citation omitted.)” Kerivan v. Title Ins. & Trust Co. (1983) 147 Cal.App.3d 225, 229.

However, this allegation of continued representation would not apply to the Bank of New York Mellon or Ultimo cases. As Defendant points out, the settlement was entered into on July 8, 2015 (RJN Exh. B). An Order dismissing the Ultimo action with prejudice based upon the settlement was entered on July 28, 2015. RJN Exh. B. Accordingly, Plaintiff City Lights Financial Express, Inc., as Defendant in the Ultimo action, knew or through the use of reasonable diligence should have discovered the fact of the settlement which was allegedly made without authorization from Miller. The Court takes judicial notice of the records of the Los Angeles Superior Court, Case No. 512719 that the motion for attorney’s fees was heard on September 18, 2015. That motion was denied without prejudice, but the parties were ordered to meet and confer as to the attorney’s fees and costs award. On December 15, 2015, the Court granted the motion for attorney’s fees in the amount or $20,000.00. December 15, 2015. Accordingly, Plaintiff City Lights Financial Express, Inc., as Defendant in the Ultimo action, knew or should have known it suffered damages from Gross’ alleged legal malpractice no later than December 15, 2015. Defendant Gross’s motion to withdraw as counsel was granted on May 23, 2017. RJN, Exh. C; thus any tolling pursuant to CCP § 340.6(a)(2) ended on that date. This cause of action asserted by Plaintiff City Lights Financial Express, Inc. is barred by the one-year statute of limitations set forth in CCP § 340.6(a), which expired no later than May 23, 2018.

As to the New York Mellon case, summary judgment against Defendants, co-trustees of the Miller Family Trust, was granted on October 24, 2016. RJN, Exh. E. Judgment was entered on February 17, 2017. RJN, Exh. F. As such, the co-trustees of the Miller Family Trust knew or should have through the use of reasonable diligence discovered the injury caused by Defendant Gross’ alleged legal malpractice no later than February 17, 2017. As noted by Defendant, Plaintiffs’ present counsel, Rocky Ortega, represented the co-trustees Finkelstein, Miller and Escobar as of April 8, 2017. See RJN, Exh. F (Notice of Appeal). Accordingly, this cause of action, even if asserted on behalf of the real parties in interest co-trustees of the Miller Family Trust, is barred by the one-year statute of limitations set forth in CCP § 340.6(a), which expired no later than April 8, 2018.

Accordingly, the statute of limitations argument is not successful as to the first cause of action asserted by Miller, but is successful as to the first cause of action asserted by Plaintiffs City Lights Financial Express, Inc. and the Miller Family Trust.

B. Re: Failure To Plead Facts Sufficient To Constitute A Cause of Action.

As to Plaintiff Miller, as against whom the statute of limitations argument was not successful, Defendant argues that Plaintiffs have failed to allege that any of the Plaintiffs retained this Defendant and, if so, at what time and the material terms of this retention. However, these are not elements of the cause of action.

To state a cause of action for legal malpractice, a plaintiff must plead “(1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney's negligence.” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199 [108 Cal. Rptr. 2d 471, 25 P.3d 670].) Whether an attorney sued for malpractice owed a duty of care to the plaintiff “is a question of law and depends on a judicial weighing of the policy considerations for and against the imposition of liability under the circumstances.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 342 [134 Cal. Rptr. 375, 556 P.2d 737].) In addressing the issue of breach, “‘the crucial inquiry is whether [the attorney's] advice 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.]’ [Citations.]” (Dawson v. Toledano (2003) 109 Cal.App.4th 387, 397 [134 Cal. Rptr. 2d 689].)

Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 693.

Moreover, Defendant’s RJN reflects that he represented Defendant City Lights Financial Express, Inc. in the Ultimo case (RJN, Exhs. B, C) and the Miller Family Trust co-trustees in the Bank of New York Mellon case (RJN Exhs. D, E). And there are sufficient allegations throughout the 1AC that Defendant Gross represented Miller in his personal capacity.

This argument is not persuasive.

Conclusion

The demurrer to the first cause of action is OVERRULED as to Plaintiff John Miller. The demurrer to the first cause of action is SUSTAINED without leave to amend as to Plaintiffs City Lights Financial Express, Inc. and the Miller Family Trust, unless Plaintiffs can demonstrate a reasonable possibility of successful amendment.

3. Second Cause of Action (Fraud).

A. Re: Statute of Limitations.

This cause of action is asserted by Plaintiff Miller only.

Defendant argues that the three-year statute of limitations set forth in CCP § 338 bars this cause of action.

The limitations period for Powell's fraud and negligent misrepresentation claims is three years. (Code Civ. Proc., § 338, subd. (d).) The limitations period begins to run only when the aggrieved party discovers “the facts constituting the fraud.” (Ibid.; see Royal Thrift & Loan Co. v. County Escrow, Inc. (2004) 123 Cal.App.4th 24, 28 [20 Cal. Rptr. 3d 37] [three-year limitations period for fraud claims in Code Civ. Proc., § 338, subd. (d), incorporates “the delayed discovery rule”].)

Broberg v. The Guardian Life Ins. Co. of America (2009) 171 Cal.App.4th 912, 920.

Notably, the tolling provisions set forth in CCP § 340.6(a)(2)(continued representation by attorney), does not apply to this common law cause of action.

As discussed above, the bid on the Sheriff’s sale occurred in July 2016. Original Complaint, Exh. B. The three year statute of limitations would begin to run no later than that date, and would have expired in July 2019. Plaintiff has not pled facts justifying delayed discovery for purposes of delaying the running of the statute of limitations:

"Again, discovery and knowledge are not convertible terms and whether there has been a discovery within the contemplation of the statute is a question of law to be determined by the court from the facts pleaded. It is not, therefore, sufficient for the plaintiff to aver that he was ignorant of the facts at the time of their occurrence and was not informed of them until within the three years. He must show that the acts of fraud were committed under circumstances that he would not be presumed to have knowledge of them, it being the rule that if he has 'notice or information of circumstances which would put him on inquiry which if followed would lead to knowledge, or that the facts were presumptively within his knowledge, he will be deemed to have had actual knowledge of the facts.'" In the present case plaintiff has not shown that she could not have discovered with reasonable diligence prior to three years before the suit. ( Code Civ. Proc., § 338, subd. 4; see 1 Witkin, California Procedure, § 143, pp. 652, 653; 2 Witkin, California Procedure, § 479, p. 1465; Lady Washington C. Co. v. Wood, 113 Cal. 482 [43 P. 809]; Original Min. & Mill. Co. v. Casad, 210 Cal. 71 [290 P. 456]; Hobart v. Hobart Estate Co., 26 Cal.2d 412 [159 P.2d 958].) Therefore her claim is on its face barred by the statute of limitations.

Woodring v. Basso (1961) 195 Cal.App.2d 459, 466-67 (bold emphasis added).

Accordingly, the second cause of action, as pled, is time-barred.

B. Re: Failure To Plead Facts Sufficient To Constitute A Cause of Action.

Defendant argues that fraud is not pled with sufficient particularity.

“To establish a claim for deceit based on intentional misrepresentation, the plaintiff must prove seven essential elements: (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff. (Citations omitted.)” Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498 (italics omitted).

Fraud must be pleaded with specificity rather than with “‘general and conclusory allegations.’ ” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184 [132 Cal. Rptr. 2d 490, 65 P.3d 1255].)  The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (Lazar v. Superior Court, supra, 12 Cal.4th at p. 645.)

We enforce the specificity requirement in consideration of its two purposes. The first purpose is to give notice to the defendant with sufficiently definite charges that the defendant can meet them. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216 [197 Cal. Rptr. 783, 673 P.2d 660].) The second is to permit a court to weed out meritless fraud claims on the basis of the pleadings; thus, “the pleading should be sufficient ‘“to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.”’” (Id. at pp. 216–217.)

West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.

Paragraphs 11 – 17 do not sufficient plead exactly what Defendant Gross said to Plaintiff, when, why such representations were known to be false when made, and Plaintiffs actual reliance to his detriment.

“Actual reliance occurs when a misrepresentation is ‘“an immediate cause of [a plaintiff's] conduct, which alters his legal relations,”’ and when, absent such representation, ‘“he would not, in all reasonable probability, have entered into the contract or other transaction.”’ [Citations.] ‘It is not … necessary that [a plaintiff's] reliance upon the truth of the fraudulent misrepresentation be the sole or even the predominant or decisive factor in influencing his conduct. … It is enough that the representation has played a substantial part, and so has been a substantial factor, in influencing his decision.’” (Citation omitted.)

Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1256.

Conclusion

The demurrer to the second cause of action is SUSTAINED with leave to amend.

4. Third Cause of Action (Breach of Fiduciary Duty).

A. Re: Statute of Limitations.

Defendant argues that this cause of action is barred by the statute of limitations set forth in CCP § 340.6.

Cases[5] have held that the statute of limitations set forth in CCP § 340.6 applies whether a claim is characterized as one for legal malpractice of breach of fiduciary duty:

In this case, we hold that the statute of limitations within which a client must commence an action against an attorney on a claim for legal malpractice or breach of a fiduciary duty is identical. Unless tolled, a claim  [*1364]  based on either theory falls within the statutory term "wrongful act or omission" and must be commenced within one year after the client discovers, or with reasonable diligence should have discovered, the facts constituting the act or omission, or four years from the date of the act or omission, whichever occurs first.

Stoll v. Superior Court (1992) 9 Cal.App.4th 1362, 1363-1364 (bold emphasis added).

This cause of action is based upon Gross’ representation of Plaintiff Miller and Corvi on the collection of the above assignment. For the reasons set forth above re: Plaintiff Miller’s first cause of action, the statute of limitations set forth in CCP § 340.6 does not bar the third cause of action.

B. Re: Failure To Plead Facts Sufficient To Constitute A Cause of Action.

As to Plaintiff Miller, as against whom the statute of limitations argument was not successful, Defendant argues that this cause of action is duplicative, uncertain and fails to plead facts support a cause of action for breach of fiduciary duty. Defendant argues that Plaintiff does not plead a personal advantage concerning the subject matter of the retainer or circumstances that create adversity to the client’s interest. Defendant argues that no agreement with Defendant existed.

“[A] breach of fiduciary duty is a species of tort distinct from a cause of action for professional negligence. [Citations.] The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach. [Citation.]” (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086 [41 Cal. Rptr. 2d 768] (Stanley).)

“The attorney-client relationship is a fiduciary relation of the very highest character imposing on the attorney a duty to communicate to the client whatever information the attorney has or may acquire in relation to the subject matter of the transaction. [Citations.]” (Beery v. State Bar (1987) 43 Cal.3d 802, 813 [239 Cal. Rptr. 121, 739 P.2d 1289].)

Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1534.

As discussed above, there are sufficient allegations that an attorney-client relationship existed between Defendant Gross and Plaintiff Miller regarding the assignment of real property. Here, Defendant allegedly represented both sides in an Assignment, used the Assignment to bid on real property without telling Miller, recovered a deed for real property and then recovered cash and failed to inform Miller of that recovery. 1AC, ¶ 5. Gross insisted that the Assignment had no value and that no recovery had happened at the Sheriff’s sale of the real property. Id. This caused Plaintiff damage in the amounts set forth at ¶ 5. Benefit to the attorney is not an element of the cause of action. This is sufficient to plead a cause of action for breach of fiduciary duty.

Conclusion

 

The demurrer to the third cause of action is OVERRULED.

5. Fourth Cause of Action (Financial Abuse).

A. Re: Statute of Limitations.

Defendant argues that this cause of action is barred by the statute of limitations set forth in CCP § 340.6.

Cases have held that the statute of limitations set forth in CCP § 340.6 applies whether a claim necessarily depends on proof of an attorney violation of a professional obligation.

We hold that section 340.6(a) applies to a claim when the merits of the claim will necessarily depend on proof that an attorney violated a professional obligation—that is, an obligation the attorney has by virtue of being an attorney—in the course of providing professional services. Such claims brought more than one year after the plaintiff discovers or through reasonable diligence should have discovered the facts underlying the claim are time-barred by section 340.6(a) unless the plaintiff alleges actual fraud.

Lee v. Hanley (2015) 61 Cal.4th 1225, 1229.

For the reasons set forth above re: Plaintiff Miller’s first cause of action, the statute of limitations set forth in CCP § 340.6 does not bar the fourth cause of action.

Alternatively, the statute of limitations set forth in Welf. & Inst. Code § 15657.7 provides:

An action for damages pursuant to Sections 15657.5 and 15657.6 for financial abuse of an elder or dependent adult, as defined in Section 15610.30, shall be commenced within four years after the plaintiff discovers or, through the exercise of reasonable diligence, should have discovered, the facts constituting the financial abuse.

Notably, the tolling provisions set forth in CCP § 340.6(a)(2)(continued representation by attorney), does not apply to Welf. & Inst. Code § 15657.7.

Nonetheless, as discussed above, the bid on the Sheriff’s sale occurred in July 2016. Original Complaint, Exh. B. Accordingly, the four-year statute of limitations set forth in Welf. & Inst. Code § 15657.7 expires in July 2020.

The fourth cause of action is not time-barred.

B. Re: Failure To Plead Facts Sufficient To Constitute A Cause of Action.

As to Plaintiff Miller, as against whom the statute of limitations argument was not successful, Defendant argues that the conclusory allegations supporting this cause of action are insufficient to plead this statutory cause of action with specificity.

Financial abuse of an elder adult “occurs when a person or entity does any of the following: [¶] (1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. [¶] (2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.” (Welf. & Inst. Code, § 15610.30, subd. (a).) The Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) was enacted to provide for the “private, civil enforcement of laws against elder abuse and neglect” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82 Cal. Rptr. 2d 610, 971 P.2d 986]). The statutory provisions are not limited to mentally incompetent or physically impaired elders, or persons of limited financial means. (Welf. & Inst. Code, §§ 15600, 15610.27, 15610.30.) Under the statute, it is not necessary that the taker maintain an intent to defraud if it can be shown that the person took the property for a wrongful use and “knew or should have known that [his or her] conduct is likely to be harmful to the elder … .” (Id., § 15610.30, subd. (b).)

Bonfigli v. Strachan (2011) 192 Cal.App.4th 1302, 1315.

Welf. & Inst. Code § 15610.30(b) provides:

(b) A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.

(emphasis added.)

As discussed above, Defendant allegedly represented both sides in an Assignment, used the Assignment to bid on real property without telling Miller, recovered a deed for real property and then recovered cash and failed to inform Miller of that recovery. 1AC, ¶ 5. Gross insisted that the Assignment had no value and that no recovery had happened at the Sheriff’s sale of the real property. Id. Gross allegedly intended to defraud Miller on his Assignment. ¶ 23. This caused Plaintiff damage in the amounts set forth at ¶ 5. Moreover, ¶ 43 alleges that Gross and Corvi kept the profits of the Sheriff’s sale for themselves. ¶ 43.

The cause of action is sufficiently pled.

Conclusion

The demurrer to the fourth cause of action is OVERRULED.

6. Eighth Cause of Action (Civil Conspiracy).

A. Re: Statute of Limitations.

Defendant argues that this cause of action is barred by the statute of limitations set forth in CCP § 340.6.

This cause of action is based on the allegation that Gross and Corvi conspired to commit the damages flowing from the assignment that was assigned to Miller and then subsequently u sed at the Sheriff’s sale of the apartment. 1AC, ¶ 42. For the reasons discussed above re: Plaintiff Miller’s first cause of action, which are hereby incorporated by reference, the statute of limitations set forth in CCP § 340.6 does not bar the eighth cause of action.

B. Re: Failure To Plead Facts Sufficient To Constitute A Cause of Action.

As to Plaintiff Miller, as against whom the statute of limitations argument was not successful, the Court agrees with Defendant that civil conspiracy is not an independent cause of action. “Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. … [¶] Standing alone, a conspiracy does no harm and engenders no tort liability. It must be activated by the commission of an actual tort.” (Citation omitted.) “A conspiracy cannot be alleged as a tort separate from the underlying wrong it is organized to achieve.” (Citation omitted.) Moran v. Endres (2006) 135 Cal.App.4th 952, 954-55 (bold emphasis added).

However, Plaintiff may amend to allege conspiracy liability in connection with a particular cause of action.

The demurrer to the eighth cause of action is SUSTAINED with leave to amend to allege conspiracy in connection with a particular cause of action.

Motion To Strike

Meet and Confer

Although no meet and confer declaration was submitted in connection with the motion to strike, the Declaration of Elizabeth A. Evans in support of the demurrer reflects that the meet and confer requirement set forth in CCP § 434.4 was satisfied. See Exh. 6 thereto.

Discussion

Defendant Law Offices of Martin D. Gross, a Professional Corporation moves to strike the following portions of the 1AC:

¿ Prayer, ¶ 5, Page 14 (attorney’s fees). TENTATIVE RULING: DENY.

Defendant argues that there is no basis to recover attorney’s fees.

“[A]s a general rule, attorney fees are not recoverable as costs unless they are authorized by statute or agreement.” People ex rel. Dept. of Corporations v. Speedee Oil Change Systems, Inc. (2007) 147 Cal. App. 4th 424, 429.

Because the fourth cause of action for Elder Financial Abuse is viable (see demurrer), Plaintiff might be able to recover attorney’s fees pursuant to Welf. & Inst. Code § 15657.5(a).

¿ ¶¶ 45 and 56, Page 13 (punitive damages). TENTATIVE RULING: MOOT.

Based on the ruling on the demurrer, the motion to strike is MOOT as to these paragraphs contained in the eighth cause of action for civil conspiracy.

¿ Prayer, ¶ 3, Page 14 (punitive damages). TENTATIVE RULING: GRANT with leave to amend.

With respect to the causes of action which remain viable against moving Defendant Gross, there are insufficient allegations of malice, oppression or fraud, as those terms are defined in Civil Code § 3294(c)(1) – (3).

¿ ¶¶ 40-45, 56 (civil conspiracy). TENTATIVE RULING: MOOT.

Based on the ruling on the demurrer, the motion to strike is MOOT as to these paragraphs contained in the eighth cause of action for civil conspiracy.

¿ ¶¶ 57-59, page 13-14, Sections I and J (re: Corvi’s Trust). TENTATIVE RULING: DENY.

Allegations as to Corvi’s Trust are proper to show where the real property ended up, for purposes of a constructive trust (Page 14).

¿ Prayer, ¶ 14, Page 15 (civil conspiracy). TENTATIVE RULING: GRANT without leave to amend.

Including this in the Prayer does not make sense, and thus, it is irrelevant. CCP § 436(a).

¿ Prayer, ¶ 15, Page 15 (Corvi’s Trust). TENTATIVE RULING: GRANT without leave to amend.

Including this in the Prayer does not make sense, and thus, it is irrelevant. CCP § 436(a).

¿ Prayer, ¶ 16, Page 15 (Corvi’s Trust). TENTATIVE RULING: DENY.

This appears to be a prayer for the imposition of a constructive trust. A constructive trust may properly be imposed upon the proceeds of the sale of real property where there is fraud or a breach of contract. GHK Assocs. v. Mayer Group (1990) 224 Cal.App.3d 856, 878.

[1] The Court only addresses the causes of action asserted against demurring Defendant Gross, not those causes of action asserted against non-demurring Defendant Corvi.

[2] CCP § 340.6 was amended, effective January 1, 2020.

[3] In the case of actual fraud, presumably, the statute of limitations for fraud causes of action applies. The fraud statute of limitations is also discussed below.

[4] Although this exhibit is not attached to the operative 1AC, “evidentiary facts found in recitals of exhibits attached to a complaint or superseded complaint which can be considered on demurrer. (4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, §§ 387, 411, 412, pp. 436, 458-459; 5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 896, p. 337.)” Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.

[5] The case of David Welch Co. v. Erskine & Tully, which held that a four year statute of limitations applies to breach of fiduciary duty claims against attorneys has been discredited:

In this case, however, the trial court essentially engrafted a second limitation on the one-year period for malpractice which happens to involve a breach of fiduciary duty. Because such a breach is ungoverned by a specific statutory limitations period, the trial court concluded that the four-year "catch-all" limitations period applied. In our view, this disregards the intent of the Legislature and, because much attorney malpractice may be considered a fiduciary breach, reinstates a lengthy limitations period and thus increases the very insurance costs the Legislature sought to decrease.  [*1369]  We recognize that the David Welch decision, on which the trial court relied, did  distinguish between legal malpractice which does and does not involve a fiduciary's breach: "where a cause of action is based on a defendant's breach of its fiduciary duties, the four-year catchall statute set forth in Code of Civil Procedure section 343 applies." (David Welch Co. v. Erskine & Tulley, supra, 203 Cal.App.3d at p. 893.) However, we respectfully disagree with this conclusion. David Welch did not discuss Southland or the legislative history cited therein. It stated its conclusion without extensive analysis of the purpose behind the enactment of section 340.6. It cited no authority involving a breach of fiduciary duty in the context of legal malpractice. Stoll v. Superior Court (1992) 9 Cal.App.4th 1362, 1368-1369.

related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where THE MILLER FAMILY TRUST is a litigant

Latest cases where INTEGRATED LENDER SERVICES INC. A DELAWARE CORPORATION is a litigant

Latest cases where CITY LIGHTS FINANCIAL EXPRESS INC. is a litigant

Latest cases where APB PROPERTIES LLC is a litigant