SAM SABER VS KINKLE RODIGERS AND SPRIGGS, APC, ET AL.,

Tentative Rulings

Case Number: ****6999    Hearing Date: November 04, 2020    Dept: P

Tentative Ruling

Sam Saber v. Kinkle, Rodiger & Spriggs APC et al., Case No. ****6999

Hearing Date November 4, 2020

PLS Defendants’ Demurrer to Fifth Amended Complaint

Plaintiff’s Motion for Leave to File Sixth Amended Complaint

On October 8, 2020 the court sustained a demurrer to the fifth amended complaint without leave to amend as to the Alderman and KRS defendants after considering plaintiff’s supplemental briefing. See 10/8/2020 minute order pg. 2. The court continued the demurrer as to the PLS defendants. See 10/8/20 minute order pg. 3.

The PLS demurrer is valid for the same reasons the court sustained the Alderman and KRS demurrers. The claims against PLS are based on Alderman’s alleged agency. The claims against Alderman are barred by the statute of limitations. Cal. Code of Civ. Proc. ;340.6. See 10/8/20 minute order pgs. 2-3. The claims against PLS are likewise barred. SUSTAINED

Plaintiff seeks leave to file a sixth amended complaint. The causes of action in the proposed pleading were previously dismissed in prior demurrer rulings. The court declines to reconsider those rulings or its decision to sustain the demurrer to the fifth amended complaint without leave to amend. It would not serve the interests of justice to grant plaintiff an additional chance to plead causes of action after he has failed to do so six times. DENIED.

DUE TO THE ONGOING COVID-19 PANDEMIC, PARTIES AND COUNSEL ARE ENCOURAGED TO APPEAR VIA LA COURT CONNECT.

Case Number: ****6999    Hearing Date: October 08, 2020    Dept: P

Tentative Ruling

Sam Saber v. Kinkle, Rodiger & Spriggs APC et al., Case No. ****6999

Hearing Date October 8, 2020

Demurrers (Alderman defendants, KRS defendants, and PLS defendants) to Fifth Amended Complaint – Supplemental Pleading

On August 20, 2020 the court issued a tentative ruling sustaining defendants’ demurrer to plaintiff’s fifth amended complaint. The court granted plaintiff an opportunity to file a supplemental brief to demonstrate why his cause of action for breach of fiduciary duty is not barred by the statute of limitations (Cal. Code of Civ. Proc. ;340.6).

The elements of a cause of action for breach of fiduciary duty are (1) existence of a fiduciary duty, (2) breach and (3) damages. Benasra v. Mitchell Silberberg & Knupp LLP (2004) 123 Cal.App.4^th 1179, 1183. An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional service, must be commenced within one year after the plaintiff discovers, or should have discovered, facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. Cal. Code of Civ. Proc. ;340.6. The one-year statute is tolled while the attorney continues representing plaintiff regarding the specific subject matter in which the wrongful act or omission occurred, or if the attorney willfully conceals the facts constituting the wrongful act or omission. Id. The statute of limitations under ;340.6 applies not only to legal malpractice claims but also to claims for breach of fiduciary duty arising out of the performance of an attorney’s professional duties. Prakashpalan v. Engstrom, Lipscomb and Lack (2014) 223 Cal.App.4th 1105, 1121.

Plaintiff argues the gravamen of his breach of fiduciary duty claim is not attorney malpractice, so ;340.6 does not apply. He argues that when Alderman advised plaintiff’s counsel Bauer to withdraw, he was not acting as an attorney. This does not comport with the fifth amended complaint, which states “[i]n March or April of 2014, Plaintiff communicated with defendant Alderman by telephone where they discussed in kind payment compensation for Alderman’s continued assistance with the case KRS v. Saber” and “Alderman agreed that his services would include but were not limited to negotiations with KRS and drafting of litigation documents.” 5AC at ¶¶ 143, 145.

There was an agreement between Alderman and plaintiff under which Alderman agreed to continue providing legal services. Alderman’s alleged statement that “Bauer should make sure to get paid $10,000.00 in advance of the trial, otherwise, she would never receive her money,” occurred in the context of this agreement. 5AC at ¶153. Plaintiff states “[t]his statement by Alderman breached his fiduciary duty first as an attorney providing assistance to Plaintiff.” 5AC at ¶ 153. Thus, plaintiff admits the statement was made in the context of defendant’s capacity as an attorney providing professional services, and ;340.6 applies.

Plaintiff argues Alderman should be estopped from alleging the statute of limitations because he “explicitly advised Plaintiff not to file a malpractice suit because Alderman was in charge of settlement and he would make sure it got settled.” 5AC at ¶195. However, this alleged advice related to claim against KRS for malpractice in Saber v. Saber and Saber v. Delta. The basis of this suit is alleged malpractice in the KRS v. Saber, and there are no allegations that Alderman prevented plaintiff from timely filing a malpractice claim in that matter. 5AC at ¶208. The estoppel arguments fail. The court’s tentative ruling will be the final ruling. SUSTAINED without leave to amend on statute of limitations grounds.

DUE TO THE ONGOING COVID-19 PANDEMIC, PARTIES AND COUNSEL ARE ENCOURAGED TO APPEAR REMOTELY VIA LA COURT CONNECT.

Case Number: ****6999    Hearing Date: August 20, 2020    Dept: P

Tentative Ruling

Sam Saber v. Kinkle, Rodiger & Spriggs APC et al., Case No. ****6999

Hearing Date August 20, 2020

Demurrers (by Alderman defendants, KRS defendants, and PLS defendants) to Fifth Amended Complaint

Plaintiff retained defendant Kinkle, Rodiger & Spriggs (KRS) to provide legal services in Saber v. Delta, a theft of trade secrets and unfair competition lawsuit, and Saber v. Saber, a property dispute between plaintiff and his sister. Plaintiff alleges KRS attorney defendants Alderman and Hilgers provided insufficient and/or negligent legal services.

Defendants Alderman and Hilgers left KRS in 2010 to start Alderman & Hilgers, LLP (A&H). Plaintiff alleges Alderman continued acting as an intermediary between him and KRS. In 2011 KRS demand the unpaid fees, and in June 2012 KRS sued plaintiff for those unpaid fees. Alderman agreed to assist in defending the claim but did not want to be attorney of record because of an ongoing interest in a KRS retirement account. Plaintiff alleges Alderman’s continued relationship with and financial interest in KRS constituted a conflict of interest.

In 2014 plaintiff retained attorney Bauer to represent him in KRS v. Alderman. Plaintiff alleges that thirteen days before trial Bauer demanded a $10,000 retainer in violation of the parties’ agreement. Plaintiff alleges Alderman breached his duty of loyalty by telling Bauer she “should make sure to get paid $10,000.00 in advance of the trial.” Bauer moved to be relieved as counsel, and KRS prevailed at trial; judgment was entered in 2014. In 2017 plaintiff filed this suit against A&H, the other firms involved in KRS v. Alderman and multiple individual attorneys.

The court previously sustained demurrer to the fourth amended complaint without leave to amend on the grounds that the complaint was uncertain, and plaintiff’s claims were barred by the statute of limitations. Following plaintiff’s motion for reconsideration, the court granted leave to amend as to the breach of fiduciary duty claim only. The defendants associated with Alderman & Hilgers, Pyka Lenhart Schnaider, APC (“PLS defendants”) and the KRS defendants all demur to the fifth amended complaint.

The elements of a cause of action for breach of fiduciary duty are (1) existence of a fiduciary duty (2) breach and (3) damages. Benasra v. Mitchell Silberberg & Knupp LLP (2004) 123 Cal.App.4^th 1179, 1183. An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional service, shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, facts constituting the wrongful act or omission or four years from the date of the wrongful act or omission, whichever occurs first. Cal. Code of Civ. Proc. ;340.6. The statute of limitations is tolled while the attorney continues representing plaintiff regarding the subject matter in which the wrongful act or omission occurred or if the attorney willfully conceals facts constituting the wrongful act or omission. Id. The statute of limitations under ;340.6 applies both to legal malpractice claims and claims for breach of fiduciary duty arising out of the performance of professional duties. Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1121.

Alderman Defendants’ Demurrer

Plaintiff alleges various acts of malpractice against the Alderman defendants in connection with Saber v. Delta and Saber v. Saber, but, as alleged in the 5AC and the arguments in plaintiff’s opposition, the breach of fiduciary duty claim arises entirely out of Alderman’s alleged conflict of interest during KRS v. Saber. 5AC at ¶¶208-214, 242-246.

Plaintiff alleged facts that, if proven, show Alderman breached his fiduciary duty in KRS v. Saber. Plaintiff alleges Alderman acted as an agent for both KRS and plaintiff, though KRS and plaintiff were litigation opponents. Additionally, plaintiff alleges Alderman provided unsound legal advice to protect his own financial interest in KRS. 5AC at ¶¶259, 282, 284. Plaintiff alleges Alderman wrongfully advised him against filing a cross complaint, failed to adequately assist him in preparing discovery responses and failed to adequately inform him regarding case developments. 5AC ¶¶288, 291, 325. The claim does not fail for uncertainty.

However, a cause of action for breach of fiduciary duty is subject to the statute of limitations of Cal. Code of Civ. Proc. ;340.6 if it arises out of an attorney’s wrongful act or omission in the performance of professional services. Prakashpalan, supra, at 1121. Plaintiff alleges Alderman was his attorney in KRS v. Saber, and the damages alleged in the 5AC arise out of Alderman’s failure to provide adequate representation. e.g. 5AC ¶¶288, 325. The ;340.6 statute of limitations for attorney wrongdoing applies.

This action was filed on January 30, 2017. Defendant Alderman stopped representing plaintiff in September 2014. Any tolling of the statute due to continued representation ceased by that date. Plaintiff admittedly was aware of Alderman’s alleged conflict of interest by “late July or early August of 2012.” 5AC at ¶118. Plaintiff alleges Alderman told him on that date of “his interest in a KRS retirement account.” Id. Plaintiff admits judgment was entered in KRS v. Saber in 2014. 5AC at ¶277. Therefore, upon entry of judgment, plaintiff suffered all the injuries forming the basis of his breach of fiduciary duty claim. The statute began running in 2012 at the earliest – when plaintiff became aware of Alderman’s conflict of interest – and in 2014 at the latest, when judgment was entered. Since plaintiff was aware of the alleged conflict of interest in “late July or early August of 2012,” the one-year statute of limitations – which begins running when a plaintiff discovers or should have discovered the wrongful acts underlying his or her claim – under ;340.6 applies. Plaintiff’s cause of action expired in 2015 (one year post-judgment) at the latest. Under either calculation, the 5AC is untimely. SUSTAINED without leave to amend.

Alderman Defendants’ Motion to Strike

Because the demurrer was sustained without leave to amend as to the sole remaining cause of action, the motion to strike is MOOT.

Other Defendants’ (PLS/KRS) Demurrer

PLS and KRS and their individual defendant attorneys also demur. The causes of action alleged against arise out of the same set of facts as the claims against the Alderman defendants and are based either on a theory of principal/agent liability through Alderman or allegations that KRS and PLS owed direct duties of loyalty to plaintiff throughout the KRS v. Saber litigation. 5AC at ¶¶270-282. As stated, plaintiff was aware of the alleged conflict of interest in summer 2012 at the latest and suffered all the injuries underlying his claim by 2014. His causes of action against all other defendants expired alongside his claims against the Alderman defendants in 2015. SUSTAINED without leave to amend, for the reasons stated.

DUE TO THE ONGOING COVID-19 PANDEMIC, PARTIES AND COUNSEL ARE STRONGLY ENCOURAGED TO AVOID IN-PERSON APPEARANCES AND TO APPEAR REMOTELY. LA COURT CONNECT IS AVAILABLE.

Case Number: ****6999    Hearing Date: December 05, 2019    Dept: P

Sam Saber v. Kinkle, Rodiger, and Spriggs, APC Case No. ****6999

Plaintiff’s Motion to Set Aside and Vacate Judgment

Hearing Date: December 5, 2019

Plaintiff alleged defendants breached their fiduciary duties and colluded with opposing counsel to undermine plaintiff’s interests in a lawsuit. On June 26, 2019 this court sustained defendants’ demurrer to plaintiff’s fourth amended complaint without leave to amend on the grounds that plaintiff failed to cure multiple fatal pleading defects despite several opportunities to do so. On August 16, 2019 dismissal was entered in defendants’ favor.

Plaintiff, now in pro per, moves to set aside the entry of judgment under Code of Civ. Proc. ;473. Plaintiff argues the defects in his five prior complaints were caused by his first counsel’s mental incapacity and his second counsel’s failure to fully review the case file. Additionally, plaintiff argues it was improper for the court to dismiss the breach of fiduciary duty cause of action without leave to amend since that cause of action was first included in the fourth amended complaint.

Under Code of Civ. Proc. ;473, “upon any terms as may be just” a court may “relieve a party or his or her legal representative from a judgment dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Since the law favors trial on the merits, “any doubts in applying section 473 must be resolved in favor of the party seeking relief. When the moving party promptly seeks relief and there is no prejudice to the opposing party, very slight evidence is required to justify relief. Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1343.

In February 2018 plaintiff’s initial counsel Michael Feldman abandoned the case after filing and amending the complaint. Feldman’s withdrawal was allegedly the result of mental and emotional incapacity. Plaintiff’s Exhibit B. Plaintiff retained Thomas Sands in March 2018 and filed a second amended complaint after demurrer to the first amended complaint was sustained with leave to amend. Plaintiff acknowledges the second amended complaint was “not the best,” because attorney Sands did not review the voluminous materials received from Feldman. Motion at pg. 9. The third amended complaint was immediately superseded by a fourth amended complaint. Demurrer to the fourth amended complaint was sustained without leave to amend. After demurrer was sustained, plaintiff reviewed the case file, then filed a fifth amended complaint addressing the issues of the most recent demurrer.

Plaintiff argues the second amended complaint’s deficiencies were excusable because Sands had inadequate time to review the file. Motion at pgs. 10-11. While this may constitute neglect, plaintiff does not explain counsel’s failure to review the documents before filing the third or fourth amended complaints.

Plaintiff amended once without leave of the court (the first amended complaint). The court then granted leave to add a cause action for breach of fiduciary duty, which was deficiently pleaded via the fourth amended complaint. The interests of justice dictate plaintiff should have an opportunity to cure the defects, which he has not previously had regarding the breach of fiduciary duty claim. As plaintiff had multiple chances to amend the other causes of action, he is not entitled another chance to amend those.

Motion GRANTED as to the breach of fiduciary duty claim ONLY and DENIED as to all other causes of action. Plaintiff may file a final fifth amended complaint containing a single cause of action for breach of fiduciary duty. No further leave to amend will be granted.

Case Number: ****6999    Hearing Date: November 05, 2019    Dept: P

TENTATIVE RULING

Sam Saber v. Kinkle Rodiger and Spriggs, APC Case No.: ****6999

Plaintiff’s Motion for Reconsideration of Order Granting Demurrer Without Leave to Amend

Hearing Date: 11/5/2019

Plaintiff alleges fraud and legal malpractice by his former counsel. On June 26, 2019 the court sustained defendants’ demurrers to plaintiff’s fourth amended complaint without leave to amend after allowing plaintiff multiple prior opportunities to amend. Judgment was entered for defendants on August 19, 2019.

Plaintiff moves for reconsideration, arguing he discovered “new and different evidence” supporting a new cause of action for negligence when he recovered his case file, which was returned on July 2, 2019. Plaintiff also argues his attorney’s failure to follow the court’s instructions set forth in prior demurrer rulings was the result of “severe mental problems.” Plaintiff argues it would be inequitable to deprive him of his day of court because of his attorney’s failings.

A court may reconsider a prior ruling if the party affected provides notice of “new or different facts, circumstances, or law.” Cal. Code of Civ. Proc. ;1008(a). When a trial court enters judgment, it loses jurisdiction to consider a motion for reconsideration. Safeco Ins. Co. v. Architectural Facades Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1482.

The court entered judgment against plaintiff in August 2019. Per Safeco, this court no longer has jurisdiction to hear a motion for reconsideration. Furthermore, even if it did consider the motion, plaintiff has not identified any alleged “new and different evidence” that might justify granting leave to file a fifth amended complaint.

Finally, plaintiff’s argument that judgment was entered due to his attorney’s negligence or incapacity is not a valid basis for granting a motion for reconsideration. Such would be addressed via a motion pursuant to Cal. Code of Civ. Proc. ;473 for relief from a judgment due to mistake, inadvertence, surprise, or excusable neglect. Motion DENIED.