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This case was last updated from Los Angeles County Superior Courts on 05/24/2019 at 03:47:50 (UTC).

PHYLLIS WEINSTEIN SIEBOLD S LAW OFFICES OF MICHAEL J BERGER

Case Summary

On 08/18/2017 PHYLLIS WEINSTEIN SIEBOLD S LAW OFFICES OF MICHAEL J BERGER was filed as a Contract - Professional Negligence lawsuit. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GREGORY W. ALARCON. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2969

  • Filing Date:

    08/18/2017

  • 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 Judge

GREGORY W. ALARCON

 

Party Details

Plaintiff and Petitioner

WEINSTEIN-SIEBOLD PHYLLIS

Defendants and Respondents

LAW OFFICES OF MICHAEL J BERGER

BERGER MICHAEL J.

DOES 1 TO 100

LAW OFFICES OF MICHAEL J. BERGER APLC

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

GLICKMAN STEVEN C. ESQ.

GLICKMAN & GLICKMAN ALC

GLICKMAN STEVEN C.

Defendant Attorneys

DONAHOE & YOUNG LLP

DONAHOE TIMOTHY CULLUM

 

Court Documents

NOTICE RE: CONTINUANCE OF HEARING

8/22/2018: NOTICE RE: CONTINUANCE OF HEARING

NOTICE RE: CONTINUANCE OF HEARING

8/22/2018: NOTICE RE: CONTINUANCE OF HEARING

NOTICE OF CONTINUANCE OF STATUS CONFERENCE

8/28/2018: NOTICE OF CONTINUANCE OF STATUS CONFERENCE

NOTICE OF CONTINUANCE OF STATUS CONFERENCE

8/28/2018: NOTICE OF CONTINUANCE OF STATUS CONFERENCE

Minute Order

10/22/2018: Minute Order

DECLARATION OF STEVEN C. GLICKMAN RE STATUS OF STAYED CASE

3/28/2018: DECLARATION OF STEVEN C. GLICKMAN RE STATUS OF STAYED CASE

Minute Order

4/4/2018: Minute Order

NOTICE OF INTENTION TO APPEAR BY TELEPHONE AT THE STATUS CONFERENCE RE STAY CASE

8/10/2018: NOTICE OF INTENTION TO APPEAR BY TELEPHONE AT THE STATUS CONFERENCE RE STAY CASE

Minute Order

10/4/2017: Minute Order

NOTICE OF STATUS CONFERENCE AND ORDER

10/6/2017: NOTICE OF STATUS CONFERENCE AND ORDER

DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION TO STAY, ETC

9/21/2017: DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION TO STAY, ETC

PLAINTIFF'S REPLY TO DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION TO STAY

9/26/2017: PLAINTIFF'S REPLY TO DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION TO STAY

PROOF OF SERVICE OF SUMMONS

9/8/2017: PROOF OF SERVICE OF SUMMONS

SUMMONS ON FIRST AMENDED COMPLAINT

9/13/2017: SUMMONS ON FIRST AMENDED COMPLAINT

FIRST AMENDED COMPLAINT FOR DAMAGES: 1. PROFESSIONAL NEGLIGENCE, ETC

9/13/2017: FIRST AMENDED COMPLAINT FOR DAMAGES: 1. PROFESSIONAL NEGLIGENCE, ETC

DEFENDANTS REQUEST FOR JUDICIAL NOTICE OF: 1) PETITION FOR DISSOLUTION OF MARRIAGE; ETC

9/15/2017: DEFENDANTS REQUEST FOR JUDICIAL NOTICE OF: 1) PETITION FOR DISSOLUTION OF MARRIAGE; ETC

SUMMONS

8/18/2017: SUMMONS

COMPLAINT FOR DAMAGES: 1. PROFESSIONAL NEGLIGENCE JURY TRIAL DEMANDED

8/18/2017: COMPLAINT FOR DAMAGES: 1. PROFESSIONAL NEGLIGENCE JURY TRIAL DEMANDED

15 More Documents Available

 

Docket Entries

  • 03/22/2019
  • at 08:30 AM in Department 36, Gregory W. Alarcon, Presiding; Status Conference - Held - Continued

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  • 03/22/2019
  • Minute Order ( (Status Conference Matter is called for hearing.)); Filed by Clerk

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  • 03/18/2019
  • Declaration (Declaration of Steven C. Glickman re Status of Stayed Case); Filed by Phyllis Weinstein-Siebold (Plaintiff)

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  • 10/22/2018
  • at 08:30 AM in Department 36, Gregory W. Alarcon, Presiding; Status Conference - Held

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  • 10/22/2018
  • Minute Order ((Status Conference)); Filed by Clerk

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  • 10/22/2018
  • Minute order entered: 2018-10-22 00:00:00; Filed by Clerk

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  • 08/31/2018
  • at 08:30 AM in Department 36; Status Conference

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  • 08/31/2018
  • Minute order entered: 2018-08-31 00:00:00; Filed by Clerk

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  • 08/28/2018
  • Notice Re: Continuance of Hearing and Order; Filed by Defendant/Respondent

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  • 08/28/2018
  • Notice Re: Continuance of Hearing and Order; Filed by Plaintiff/Petitioner

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40 More Docket Entries
  • 09/13/2017
  • First Amended Complaint; Filed by Phyllis Weinstein-Siebold (Plaintiff)

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  • 09/13/2017
  • SUMMONS ON FIRST AMENDED COMPLAINT

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  • 09/08/2017
  • Proof of Service (not Summons and Complaint); Filed by Plaintiff/Petitioner

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  • 09/08/2017
  • Proof of Service (not Summons and Complaint); Filed by Plaintiff/Petitioner

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  • 09/08/2017
  • PROOF OF SERVICE OF SUMMONS

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  • 09/08/2017
  • PROOF OF SERVICE SUMMONS

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  • 08/24/2017
  • NOTICE OF MOTION AND MOTION TO STAY LEGAL MALPRACTICE ACTION PENDING RESOLUTION OF THE UNDERLYING MATTER; ETC

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  • 08/18/2017
  • Complaint; Filed by Phyllis Weinstein-Siebold (Plaintiff)

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  • 08/18/2017
  • COMPLAINT FOR DAMAGES: 1. PROFESSIONAL NEGLIGENCE JURY TRIAL DEMANDED

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  • 08/18/2017
  • SUMMONS

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Tentative Rulings

Case Number: BC672969    Hearing Date: October 14, 2020    Dept: 20

Tentative Ruling

Judge David J. Cowan

Department 20


Hearing Date:     Wednesday, October 14, 2020

Case Name: Phyllis Weinstein-Siebold v. Law Offices of Michael J. Berger

Case No.: BC672969

Motion: Demurrer w/o Motion to Strike

Moving Party: Defendant Law Offices of Michael J. Berger

Responding Party: Plaintiff Phyllis Weinstein-Siebold

Notice: OK


Ruling: The Demurrer is CONTINUED to November 13, 2020 at 8:30   a.m. in Dept. 20 for supplemental briefing.

Defendant shall file its Supplemental Brief, if any, at least ten days before the hearing. Plaintiff shall file its Responsive Supplemental Brief, if any, at least five days before the hearing.

The Further Status Conference set for October 14, 2020 is CONTINUED to November 13, 2020 at 8:30 a.m., concurrent with the Demurrer.

Defendants to give notice.

If the parties do not submit on the tentative, they are strongly encouraged to appear by LA Court Connect rather than in person in view of the COVID-19 pandemic.


BACKGROUND

 

On August 18, 2017, Plaintiff Phyllis Weinstein-Siebold filed a Complaint against Defendants Michael J. Berger, an individual; the Law Offices of Michael J. Berger; and Does 1-100, inclusive, stating a single claim for professional negligence arising from Defendants’ representation of Plaintiff in connection with a prenuptial agreement and other marital matters.

On September 13, 2017, Plaintiff filed a First Amended Complaint (“FAC”) against the same Defendants stating a single claim for professional negligence arising from Defendants’ representation of Plaintiff in the matter described above. The FAC is the operative pleading.

On September 15, 2017, Defendant filed a Demurrer to the FAC on the ground that the professional negligence claim was time-barred.

On October 4, 2017, the Court granted Defendants’ motion to stay the entire action pending resolution of Plaintiff’s underlying family court action.

On July 17, 2020, the Court held a status conference re: the underlying family court action. The parties indicated the family court action had resolved. The Court set a further status conference for October 28, 2020, set a final status conference for July 1, 2021, and set jury trial for July 19, 2021.

On August 18, 2020, Defendants re-filed the Demurrer previously filed on September 15, 2017, again arguing Plaintiff’s claim is time-barred. Defendants requested judicial notice of the Petition for Dissolution in the underlying family court action.

On September 16, 2020, Plaintiff filed an Opposition to the Demurrer.

DISCUSSION

 

Applicable Law

When considering demurrers, courts read the allegations liberally and in context, and “treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The defects must be apparent on the face of the pleading or from matters judicially noticed. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) The Court is “not concerned with plaintiff's possible inability or difficulty in proving the allegations of the complaint.” (Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 572.) A demurrer based on a statute of limitations is proper, but “will not lie where the action may be, but is not necessarily, barred. In order for the bar . . . to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42 (emphasis added))

CCP sec. 340.6 provides that “[a]n action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first.” Further, CCP sec. 340.6 provides that “the time for commencement of legal action shall not exceed four years except that the period shall be tolled” if certain conditions are in place, including (non-exhaustively) where “[t]he plaintiff has not sustained actual injury” or “[t]he attorney continues to represent the plaintiff regarding the specific subject matter” at issue. (CCP sec. 340.6(a))

Thus, “[i]n the absence of tolling, the statute commences to run upon the discovery or constructive discovery of the wrongful conduct on the part of the attorney. . . . However, the limitation period (the shorter of the one-year discovery or four-year wrongful act or omission period) is tolled as long as the client has not sustained ‘actual injury.’” (Tchorbadjian v. Western Home Ins. Co. (1995) 39 Cal.App.4th 1211, 1218.) If “at the point of actual injury, the client has already discovered the wrongdoing, he or she has only one year to bring a malpractice action.” (Id.) “On the other hand, if the client suffers actual injury such as an adverse judgment or settlement before discovering the facts constituting the wrongful conduct or malpractice by the attorney, the statute commences to run from the date of discovery.” (Id.) Our “appellate courts have construed the statutory tolling requirement of ‘actual injury’ in various ways in various contexts,” but “cases fall into two general categories: litigation and transactional malpractice.” (Id. at 1219.) “The actual injury occurs in litigation malpractice when the malpractice results in an adverse judgment or settlement in the underlying action.” (Id.)

But “[w]ithin the transactional category, there are two different types of scenarios: (1) those in which there is an adverse disposition in a dispute-resolution proceeding separate from the malpractice action, similar to the situation in litigation malpractice [citation] and (2) those in which there is no such dispute resolving determination in a separate proceeding.” (Id.) As relevant here, in “transactional malpractice without a separate dispute resolution process, actual injury may result when a client enters into a binding contract which is detrimental to his interests.” (Id.) Indeed, “[s]everal courts have found that actual injury appeared with sufficient empirical certainty in the execution of a binding marital settlement agreement or prenuptial agreement, despite the fact that the agreement could be subjected to challenge in later proceedings.” (Id.; see Radovich v. Locke–Paddon (1995) 35 Cal.App.4th 946, 974; Turley v. Wooldridge (1991) 230 Cal.App.3d 586, 593 (“When she signed the purportedly unfair Agreement on the alleged negligent advice of counsel and thereby rendered it effective, all essential elements of her cause of action for legal malpractice had occurred”); Hensley v. Caietti (1993) 13 Cal.App.4th 1165, 1175 (holding “[n]egligent legal advice which induces a client to enter into a binding contract resolving marital property and support issues results in actual injury at the point of entry [because e]ntering a contract is a jural act which alters the legal relations of the parties and creates an obligation.”))

Application to Facts

At the outset, the Court takes judicial notice, as requested, of the Petition for Dissolution and attached exhibits under Evid. Code sec. 452(d).

Defendants demur on the sole ground that Plaintiff’s claim is time-barred under CCP sec. 340.6. Defendants argue the claim is time-barred because “from the face of Plaintiff’s [FAC], it is admitted that she incurred injury (i.e. damage) prior to October 2016.” (Demurrer, p. 7.) Specifically, Defendants point to Plaintiff’s allegation that she suffered “nominal damages” before October 2016 (FAC, para. 7). Defendants also note the judicially-noticed fact that the underlying family court action was initiated on June 25, 2014 and the petition served on Plaintiff on October 3, 2014. In response, Plaintiff argues the claim is not time-barred because she did not suffer “more than nominal damages,” i.e. “actual injury,” until Plaintiff’s spouse asserted the prenuptial agreement in October 2016. Plaintiff argues the claim was therefore timely brought by August 18, 2017.

Plaintiff fails to allege when she entered into the prenuptial agreement—which is the crux of her claim and likely needs to be alleged. (FAC, para. 4.) But it appears that Plaintiff may have been actually injured as of the date she executed the prenuptial agreement. (Tchorbadjian, supra, 39 Cal.App.4th at 1219; Hensley, supra, 13 Cal.App.4th at 1175; Radovich, supra, 35 Cal.App.4th at 974.) It appears to the Court that Plaintiff likely sustained actual injury when she entered into the prenuptial agreement. “Negligent legal advice which induces a client to enter into a binding contract resolving marital property and support issues results in actual injury at the point of entry.” (Hensley, supra, 13 Cal.App.4th at 1175.) “Entering a contract is a jural act which alters the legal relations of the parties and creates an obligation.” (Id.)

Radovich v. Locke-Paddon is on point here. In Radovich, the plaintiff had entered into a “prenuptial agreement which on its face was sufficient . . . to fix the property rights of the properties in accordance with its terms.” (Radovich, supra, 35 Cal.App.4th at 974.) The Court of Appeal found plaintiff’s argument that he did not suffer injury under the prenuptial agreement until after his wife’s death “inexplicable.” (Id. at 1975.) “Throughout his marriage to the decedent Radovich would have had a ‘present, existing and equal’ interest [citation] in community property acquired by either of them during the marriage . . . and the community property would have been subject in varying measure to his control and disposition and to application to his debts,” including by being “subject to division . . . in the event of a dissolution of the marriage.” (Id. at 975) The court held that “[e]ach of these considerations would have been of real and immediate benefit to Radovich ‘[t]hroughout the thirty-four years of the marriage.’” (Id.) Therefore, “it follows that the agreement by which he ostensibly relinquished any community-property right in the decedent's acquisitions . . . caused him immediate and actual injury throughout the same thirty-four years.” (Id.) Indeed, the Court notes that the Radovich court followed Hensley, supra and Turley, supra in drawing this conclusion.

One important point of distinction here is that the prenuptial agreement itself is not before the Court. However, Plaintiff alleged that, in connection with the agreement, Defendants “failed to properly counsel plaintiff regarding the issues relating to separate property and any potential community property in the future.” (FAC, para. 4.) Plaintiff alleged “Defendants’ negligence caused plaintiff to be exposed to losing her community property interest in what should have been community property.” (FAC, para. 5.) In other words, Plaintiff entered into a prenuptial agreement which, one way or another, deprived her of community property interests she would have otherwise possessed. This case is then directly analogous to Radovich—throughout the marriage, Plaintiff was deprived of her “‘present, existing and equal’ interest[] in community property acquired by either of them during the marriage.” (Id. at 975.) Plaintiff would have reaped the “real and immediate benefit[s]” of community property interests throughout the marriage, but for the prenuptial agreement. Therefore, Plaintiff’s execution of the agreement “caused [her] immediate and actual injury throughout” her marriage—not merely when the agreement was asserted against her later in a court action. (Id.; see Tchorbadjian, supra, at 1219 (recognizing cases found actual injury from execution of an agreement “despite the fact that the agreement could be subjected to challenge in later proceedings.”))

The date Plaintiff executed the prenuptial agreement is therefore critical—that is (likely) the date on which Plaintiff sustained an actual injury, which would cause the statute of limitations to run. The date of execution is not alleged in the Complaint. However, the Court notes that the meet and confer communications provided by Defendants indicate it is Plaintiff’s position that Defendants worked on the prenuptial agreement “almost 16 years ago” as of August 29, 2017. (Donahoe Decl., Ex. A.) Further, having taken judicial notice of the Petition for Dissolution filed June 25, 2014 in the family court action, the Court notes the schedule of assets (Attachment 4) lists eleven real properties as separate property, as well as several bank accounts, shares in several entities, as well as vehicles and furniture. In the absence of a prenuptial agreement, such items would ordinarily be community property. The atypical contents of this schedule therefore suggest that a prenuptial agreement was in play in the family court action.[1]

However, the Court recognizes that neither party raised the cases relied upon by the Court—particularly Radovich but also Hensley, supra—and so the Court seeks further briefing on the issue of actual injury in the context of a prenuptial agreement. Indeed, though a demurrer based on a statute of limitations is proper, it “will not lie where the action may be, but is not necessarily, barred.” (Green Foothills, supra, 48 Cal.4th at 42.) It “is not enough that the complaint shows that the action may be barred.” (Id.) The Complaint and judicially noticed facts do not establish that the claim is “necessarily” barred, though it appears key facts are not alleged, such as the date the agreement was executed. Therefore, the Demurrer is CONTINUED to November 13, 2020 at 8:30 a.m. in Dept. 20 for supplemental briefing on the issue of actual injury. The Court also seeks input on whether Plaintiff must allege the date the prenuptial agreement was executed—a matter undoubtedly within Plaintiff’s knowledge and apparently critical to resolving this threshold statute of limitations issue for legal services rendered nearly twenty years ago.

CONCLUSION

The Demurrer is CONTINUED to November 13, 2020 at 8:30 a.m. in Dept. 20.

Defendant shall file its Supplemental Brief, if any, at least ten days before the hearing. Plaintiff shall file its Responsive Supplemental Brief, if any, at least five days before the hearing.

The Further Status Conference set for October 14, 2020 is CONTINUED to November 13, 2020 at 8:30 a.m., concurrent with the Demurrer.

Defendants to give notice.

If the parties do not submit on the tentative, they are strongly encouraged to appear by LA Court Connect rather than in person in view of the COVID-19 pandemic.

 


[1] The Court is not taking notice of any facts asserted in the Petition for Dissolution, schedules, or attachments thereto. The Court is acknowledging that the Petition and attachments state certain points, not that those points are true. (Herrera v. Deutsche Bank Nat’l Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

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