Case Name: John Klimek v. Carlos Martinez
Case No: 18CV328114

This is a legal malpractice action brought by John Klimek (“Plaintiff”) against Carlos Martinez (“Defendant”).

According to the allegations of the operative first amended complaint (“FAC”), Plaintiff retained Defendant as his attorney in 2012 to defend and prosecute a claim against Plaintiff’s former attorney, Pauline Reimer (“Pauline”). In that case, the Santa Clara County Fee Arbitration Committee issued an award in favor of Plaintiff and Pauline requested a trial de novo. During that appeal, Defendant was negligent in representing Plaintiff by failing to timely respond to motions and orders, causing a series of judgments and sanctions to be issued against him.

Defendant continued to represent Plaintiff in reference to the claims with Pauline until June 6, 2017, when he was substituted out in Santa Clara Superior Court Case number 16CV296777, Earle & Reimer v. Pacific Power and John Klimek.

Plaintiff asserts one cause of action for general negligence. Defendant presently demurs and filed an accompanying request for judicial notice. Plaintiff opposes the demurrer and filed an accompanying request for judicial notice.

I. Requests for Judicial Notice

“Judicial notice is the recognition and acceptance by the court . . . of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” (Unruh-Haxton v. Regents of the University of California (2008) 162 Cal.App.4th 343, 364, internal quotation marks and citations omitted.) Matters subject to judicial notice are listed in Evidence Code sections 451 and 452. (Id. at p. 364.)

Defendant requests judicial notice of the following court records from Earle & Reimer v. Klimek, Case No. 12CV230539: Register of Actions reflecting judgment entered on March 24, 2014; Judgment entered March 24, 2014 (“Defendant’s Exhibit 2”); Register of Actions reflecting Remittitur affirming judgment entered on September 9, 2016; Remittitur affirming judgment on September 9, 2016.

Plaintiff requests judicial notice of the following court records: Substitution of Attorney for John Klimek in Earle & Reimer, et al v. Pacific Power Control, John Klimek, Case No. 16CV296777, filed June 6, 2017 (“Plaintiff’s Exhibit 1”); Court of Appeal Opinion in Earle & Reimer, APC, et al. v. John Klimek, Case No. H041037, filed July 5, 2016 (“Plaintiff’s Exhibit 2”); Court of Appeal Opinion in Earle & Reimer, APC, et al. v. John Klimek, Case No. H041638, filed February 1, 2017 (“Plaintiff’s Exhibit 3”); and Register of Actions in Earle & Reimer, APC v. John Klimek, Case No. 12CV230539 (“Plaintiff’s Exhibit 4”).

A court may take judicial notice of court records. (Evid. Code, § 452, subd. (d).) Because these documents are court records and are relevant to the parties’ arguments, they are proper subjects of judicial notice.

Accordingly, Defendant and Plaintiff’s requests for judicial notice are GRANTED.

II. Merits of the Demurrer

Defendant demurs to Plaintiff’s negligence cause of action on the ground of failure to state sufficient facts. (See Code Civ. Proc., § 430.10, subd. (e).) He argues the claim is barred by the statute of limitations.

Code of Civil Procedure section 340.6 provides that any action against an attorney arising from the performance of professional services must be initiated 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.” (Code Civ. Proc., § 340.6, subd. (a).) However, the limitations period is tolled when the “attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.” (Code Civ. Proc. § 340.6, subd. (a)(2).) Continuous representation requires “an ongoing relationship and activities in furtherance of the relationship.” (Jocer Enters., Inc. v. Price (2010) 183 Cal.App.4th 559, 571; Worthington v. Rusconi (1994) 29 Cal.App.4th 1488, 1498.) “So long as there are unsettled matters tangential to a case, and the attorney assists the client with these matters, he is acting as his representative.” (Ibid.; see Gurkewitz v. Haberman (1982) 137 Cal.App.3d 328, 333.)

Although not clear from the allegations of the FAC alone, when the FAC and matters subject to judicial notice are read together, it is apparent the FAC implicates two separate cases in which Defendant represented Plaintiff as counsel: Earle & Reimer v. John Klimek, Case No. 12CV230539, (“Reimer 1”), and Earle & Reimer, et al. v. Pacific Power Control, Inc. and John Klimek, Case No. 16CV296777, (“Reimer 2”).

In Reimer 1, Defendant failed to respond to discovery requests and orders to compel that resulted in issue and evidence sanctions, monetary sanctions, and terminating sanctions against Plaintiff. (Plaintiff’s Exhibit 2, p. 2.) The court entered judgment on March 24, 2014. (Defendant’s Exhibit 2.) Defendant subsequently appealed the granting of sanctions, among other things, and the appellate court issued an opinion in July 2016. (Id. p. 3.) Additionally, Defendant separately appealed the trial court’s granting of Earle & Kramer’s request for attorney fees in its entirety and the appellate court issued an opinion in February 2017. (Plaintiff’s Exhibit 3, p. 2.) On October 6, 2017, the court issued an order to Defendant’s motion for amended order for attorney fees. (Plaintiff’s Exhibit 4, p. 43.)

Specific to Reimer 2, the allegations of the FAC and matters subject to judicial notice only provide that Defendant represented Plaintiff in that case and substituted out in June 2017. (FAC, p. 4; Plaintiff’s Exhibit 1.) The records do not provide any further information on this case.

Here, the parties disagree over when Defendant’s representation of Plaintiff in Reimer 1 ended and triggered the statute of limitations. Defendant argues his representation of Plaintiff ended March 24, 2016, because the scope of his representation “did not include post-judgment motions, or debtor representation, all of which occurred after the March 24, 2014 judgment.” (Memo., p. 3:11-12.) He contends those appeal motions were “separate representations, related to separate subject matters.” (Memo., p. 3:13.) In opposition, Plaintiff contends Defendant’s representation did not end until Reimer 1 concluded on October 6, 2017. He argues the appellate motions were regarding the specific subject matter in which the alleged wrongful conduct occurred and that Defendant continually represented him throughout the case.

The Court agrees with Plaintiff. The appellate motions filed by Defendant regarding sanctions and attorney fees were unsettled matters tangential to the Plaintiff’s case and Defendant continued to represent Plaintiff in those matters. Accordingly, Defendant’s representation of Plaintiff did not end until October 6, 2017, which was six months before the present action commenced. The FAC is therefore not time-barred by the statute of limitations.

In consideration of the foregoing, Defendant’s demurrer to the first and second causes of action on the ground of failure to state sufficient facts is OVERRULED.