2017-00220422-CU-PN

Sohrab Mansourian vs. Bowman & Associates

Nature of Proceeding: Hearing on Demurrer to Plaintiff’s Unverified Amended Complaint

Filed By: Bowman Jr., Robert C.

*** If oral argument is requested, the parties must at the time oral argument is requested notify the clerk and opposing counsel of the causes of action that will be addressed at the hearing. The parties are also reminded that pursuant to local court rules, only limited oral argument is permitted on law and motion matters. ***

Defendant Bowman & Associates’ demurrer to Plaintiff Sohrab Mansourian’s first amended complaint (“FAC”) is ruled upon as follows.

Defendant Christopher C. Phillips’ joinder to the demurrer is DENIED. Pursuant to Local Rule 2.09, a joining party must comply with all procedural requirements for the filing of motions, including proper notice. Here, mail service on May 4, 2018 did not provide 16 court days plus 5 calendar days notice. Additionally, the joinder was not served on Bowman & Associates.

Defendant’s request for judicial notice is granted. In taking judicial notice of these documents, the court accepts the fact of their existence, not the truth of their contents. (See Professional Engineers v. Dep’t of Transp. (1997) 15 Cal.4th 543, 590 [judicial notice of findings of fact does not mean that those findings of fact are true]; Steed v.

Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121.)

This is a legal malpractice action. Plaintiff alleges that in November 2010 he retained Defendant to represent him in a Chapter 13 bankruptcy. Plaintiff alleges that Defendant failed to properly and reasonably advise him about the treatment of his student loans in the bankruptcy, and failed to create a bankruptcy plan to properly schedule repayment of Plaintiff’s loans in the bankruptcy plan. The bankruptcy was completed in December 2015. The Trustee filed his final report and account on February 25, 2016. (RJN, Ex. 7.) Plaintiff alleges that in October 2016, he received two collection notices demanding payment of the student loan and in January 2017 was sued in two lawsuits for failure to pay.

Plaintiff filed this action on 10/11/2017.

The FAC asserts a cause of action for breach of contract and legal malpractice.

Defendant demurs to each cause of action on the grounds that each is barred by the applicable statute of limitations and fails to state sufficient facts.

Breach of Contract

The statute of limitations for a breach of contract is four years. (CCP §337.) According to Defendant, the breach (if any) occurred on December 13, 2010 when the bankruptcy was filed. Defendant also contends that Plaintiff was aware, or should have been aware, that his student loans were not being paid through the bankruptcy. Plaintiff insists that he did not learn of the breach until October 2016 when he received the two collection notices.

Plaintiff, however, fails to sufficiently plead the delayed discovery rule. Plaintiff merely alleges that he first learned of the breach in October 2016 when he received the collection notices. Plaintiff does not allege that he could not have discovery the breach through reasonable diligence such that the delayed discovery rule applies. The complaint must plead facts showing: (1) the time and manner of discovery, and (2) the inability to have made earlier discovery despite reasonable diligence. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808 see April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 832 [“plaintiff must plead facts sufficient to convince the trial judge that delayed discovery was justified”].)

The demurrer is SUSTAINED with leave to amend.

Legal Malpractice

Defendant demurs on the ground that the complaint is barred by the one year statute of limitation. (CCP §340.6.) According to Defendant, the malpractice (if any) occurred on December 13, 2010 when the bankruptcy was filed.

A legal malpractice action “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.” (CCP § 340.6(a).) The statute will begin to run when the client discovers or should have discovered the facts essential to the malpractice claim. (Beal Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 511.)

In opposition, Plaintiff insists that the statute of limitations is tolled to either December 2015 or February 25, 2016 when the Trustee filed the final report. The legal malpractice statute of limitations provides for tolling during the period when: (2) the attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred. (CCP§ 340.6(a)(2).) Thus, Plaintiff advances that the statute of limitations expired December 2019 or February 2020.

Plaintiff’s complaint, however, is silent as to when Defendant continued to represent him or when Defendant’s representation concluded. Thus, the demurrer is SUSTAINED with leave to amend.

Having sustained the demurrer on this ground, the Court need not address Defendant’s remaining arguments.

Plaintiff may file and serve a second amended complaint (“SAC”) by no later than May 21, 2018, Response to be filed and served within 30 days thereafter, 35 days if the SAC is served by mail. (Although not required by any statute or rule of court, Plaintiff is requested to attach a copy of the instant minute order to the SAC to facilitate the filing of the pleading.)