Case Number: 19STCV04691 Hearing Date: August 21, 2019 Dept: 32

greg phillips,

Plaintiff,

v.

W. ANTHONY WILLOUGHBY, et al.

Defendants.

Case No.: 19STCV04691

Hearing Date: August 21, 2019

[TENTATIVE] order RE:

Demurrer to Complaint

BACKGROUND

On February 13, 2019, Plaintiff Greg Phillips (“Plaintiff”) filed the original complaint against Defendants W. Anthony Willoughby and Anthony Willoughby, II (collectively, “Defendants”) asserting cause of action for (1) legal malpractice and (2) breach of fiduciary duty. The Complaint alleges in pertinent part as follows.
Plaintiff sued a business partner, Samuel Emad (“Emad”), in Los Angeles Superior Court in an action entitled Greg Phillips v. Emad Samuel, et al. (Case No. BC575625) (“Real Property Action”). Plaintiff alleged that Samuel had breached their partnership agreement involving a parcel of real property in Oxnard, California. Plaintiff hired Defendants to represent him in the case. Plaintiff lost the case through a default. Defendants advised Plaintiff that he should appeal the case because the default was improperly entered. Plaintiff paid Defendants over $30,000 in representing him on appeal based upon Defendants’ representations. On February 15, 2018, Plaintiff’s appeal was dismissed because Defendants made several errors including failing to timely file an appeal and failing to file an objection to opposing counsel’s motion to dismiss.

LEGAL STANDARD

A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff’s ability to prove those allegations. (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.) The court must treat as true all the complaint’s material factual allegations, but not contentions, deductions or conclusions of fact or law. (Id. at 732-33.) The complaint is to be construed liberally to determine whether a cause of action has been stated. (Id. at 733.)

REQUEST FOR JUDICIAL NOTICE

Plaintiff’s and Defendants’ requests for judicial notice are GRANTED in full. (Evid. Code § 452(d).)

ANALYSIS

Defendants demur to each cause of action in the Complaint on the grounds that each fails to allege facts sufficient to constitute a valid cause of action.

A. First Cause of Action for Legal Malpractice

The elements of a legal malpractice claim arising from a civil proceeding are (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. (Wilkinson v. Zelen (2008) 167 Cal.App.4th 37, 45.)

1. Statute of Limitations

The statute of limitations for legal malpractice actions is contained in CCP section 340.6(a). Under this statute, the one-year limitations period commences when the plaintiff actually or constructively discovers the facts of the wrongful act or omission, but no later than four years. However, this limitations period is tolled until the plaintiff suffers actual loss or damage resulting from the allegedly negligent actions and/or while the attorney continues to represent the client in the same matter. For purposes of the tolling rule, the test for “actual injury” under CCP section 340.6 is whether the plaintiff has sustained any damages compensable in an action. Under this standard, the fact of damage rather than the amount, is the critical factor. (Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 275.)

Defendants argue that Plaintiff’s first cause of action fails because it is time-barred by the aforementioned statute of limitations. Defendants contend that Plaintiff’s legal malpractice claim accrued, at the latest, on March 3, 2017 when the Court of Appeal dismissed Plaintiff’s appeal.

The judicially noticed appellate dockets reflect two appeals taken in the Real Property Action. The first was taken by petition for writ of mandate on February 23, 2017. Buccat Law Group represented Plaintiff. The appellate court denied that petition on March 3, 2017 for failure to provide an adequate record for review. The second was taken by direct appeal on October 6, 2017. Defendants represented Plaintiff in that appeal. The appellate court granted Respondents’ motion to dismiss on December 13, 2017. Plaintiff filed a motion for relief from default, and the appellate court denied that motion on December 14, 2017. Remittitur issued on February 13, 2018.

Defendants’ argument is puzzling because it premises the accrual date on the denial of the petition for writ of mandate. While the Complaint is not a model of clarity, it still clearly hangs Defendants’ liability on their alleged errors handling Plaintiff’s appeal of the default. (Compl. ¶ 12.) Defendant acknowledges that default was not entered until March 13, 2017. Therefore, Plaintiff’s petition initiated on February 23, 2017 and dismissed on March 3, 2017, while represented by a different law firm no less, has no bearing on this claim’s accrual date.

2. Sufficiency

Defendants contend that Plaintiff has not alleged facts showing that Plaintiff would have obtained a different result but for Defendants’ alleged malpractice.

“In the legal malpractice context, the elements of causation and damage are particularly closely linked.” (Namikas v. Miller (2014) 225 Cal.App.4th 1574, 1582.) “In a litigation malpractice action, the plaintiff must establish that but for the alleged negligence of the defendant attorney, the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred.” (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.) “This standard requires a ‘trial-within-a-trial’ of the underlying case, in which the malpractice jury must decide what a reasonable jury or court would have done if the underlying matter had been tried instead of settled.” (Namikas, supra, 225 Cal.App.4th at 1582.) “The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm—not yet realized—does not suffice to create a cause of action for negligence.” (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 750.)

In the usual case, causation need only be plead succinctly and generally where “the complaint’s factual recitations show plainly the connection between cause and effect.” (See Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 78.) However, where the pleaded facts of negligence and injury do not naturally give rise to an inference of causation, the plaintiff must plead specific facts affording an inference the one caused the others. (Ibid.)

Defendants’ argument is well-taken. The Complaint’s factual allegations do not show a clear connection between Defendants’ alleged legal malpractice and the damages allegedly suffered by Plaintiff. To be sure, Defendants’ purported mishandling of Plaintiff’s appeal indicates that the Court of Appeal would not have dismissed Plaintiff’s appeal as early as it did (Compl. ¶ 13). But this effect alone does not mean that Defendants’ alleged malpractice caused Plaintiff the loss of a “substantial investment, a larger amount of money, and years of work in a partnership.” (Compl. ¶ 15.) To plead a malpractice action for those damages, Plaintiff must allege facts showing why Plaintiff’s appeal would have been successful, viz., (1) why the appellate court would overturn the trial court’s entry of default following imposition of terminating sanctions and (2) why a reasonable jury or court would have found in favor of Plaintiff on the underlying case.

Defendants’ demurrer to Plaintiff’s first cause of action is SUSTAINED WITH LEAVE TO AMEND.

B. Second Cause of Action for Breach of Fiduciary Duty

Defendants argue that Plaintiff’s second cause of action is meritless as a matter of law because it is duplicative of his first cause of action. The Court concurs. Like Plaintiff’s first cause of action, Plaintiff’s second cause of action is premised on Defendants’ alleged failure to file a timely appeal, to file corrections, and to fight a motion to dismiss. (Compl. ¶ 27.)

As such, Defendants’ demurrer to Plaintiff’s second cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

C. Conclusion

Defendants’ demurrer is SUSTAINED WITH LEAVE TO AMEND as to Plaintiff’s first cause of action and SUSTAINED WITHOUT LEAVE TO AMEND as to Plaintiff’s second cause of action.