2011-00110785-CU-PN

Alexander A. De Los Reyes vs. Pre Paid Legal Services, Inc.
Nature of Proceeding: Hearing on Demurrer

Filed By: Barrett Jr., John D.

Defendants Parker Stanbury LLP, Nelson Schwartz, David Biggs, Ricardo Mercado,
and Robert LoPresti’s Demurrer to the 4th amended complaint is sustained without
leave to amend for failure to state facts sufficient to constitute a cause of action.

Defendant’s Request for Judicial Notice is granted: (1) Dismissals of defendants Drs.
Bronshvag, Schier and Hanley in underlying action against the doctors, Case No. 2009
55133. (Ex. XX, YY, and ZZ), and (2) the Complaint in this case. Defendants’ Points
and Authorities refer to Requests for Judicial Notice of WCAB and Appellate Court
materials, however the Request for Judicial Notice submitted with this demurrer is
limited to Exs. XX, YY and ZZ, and the Complaint in this action. The Court has
considered only the documents set forth in the Request for Judicial Notice attached to
this demurrer.

Plaintiff alleges a 1st cause of action for General Negligence (legal malpractice), 2nd
cause of action for Breach of Fiduciary Duty, and a 3rd cause of action for “Negligent
infliction of emotional distress.” Plaintiff alleges that defendants were his pre paid legal
provider beginning in 2005. Plaintiff was injured in 2006 and filed a workers
compensation claim. Plaintiff alleges that he told defendants of “fraud” committed by
the workers compensation doctors who allegedly misrepresented the severity of his
injury. Before the Workers Compensation settlement conference in June of 2009,
plaintiff alleges that defendants told him that if he settled his workers compensation
claim, he could still sue the doctors for fraud in Superior Court. Plainitiff, in propria
persona, thereafter sued Dr. Bronshvag, Dr. Schier, and Dr. Hanley in Sacramento
Superior Court, Case No. 2009 55133. The Judgment of Dismissal in favor of Dr
Hanley was entered August 26, 2010. The Judgment of Dismissal in favor of Dr.
Schier was entered July 30, 2010, and the Judgment of Dismissal in favor of Dr.
Bronshvag was entered March 15, 2010. The complaint in this action was filed on
September 14, 2011.

Plaintiff appealed the judgment as to Dr. Hanley. The Court of Appeal Affirmed the
judgment on July 27, 2012

Although the body of the 4AC alleges that the negligence occurred in June of 2009
when defendants told plaintiff that he could sue the doctors for fraud, Plaintiff alleges in
his Judicial Council form 4th Amended Complaint that the malpractice occurred on
September 15, 2010. He explains that accrual date by stating in his opposition that he
did not discover the malpractice until mid September 2010 when he read the case of
“Monterey Mushroom Inc. vs Stephen Thompson, et al.” This allegation of tolling is
insufficient on its face. Plaintiff has not explained the facts to support any tolling until
this date. A plaintiff whose complaint shows on its face that his claim would be barred
without the benefit of the discovery rule must specifically plead facts to show (1) the
time and manner of the discovery and (2) the inability to have made earlier discovery
despite reasonable diligence. The burden is on the plaintiff to show diligence, and
conclusionary allegations will not withstand demurrer. E-Fab Inc. v Accountants, Inc.
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Svcs (2007) 153 Cal.App.4 1308, 1319. Plaintiff’s discovery of a case is not sufficient
to allege tolling.

The Court finds that the claims for legal malpractice, breach of fiduciary duty, and
negligent infliction of emotional distress (negligence) are barred by the one year
statute of limitations, and that no tolling rule applies. On the face of the Complaint and
matters judicially noticed, plaintiff suffered actual injury no later than August of 2010
when all doctor defendants had obtained a judgment of dismissal in the underlying
action.

An 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 should have discovered, the facts….” CCP
340.6. The one year statute applies to all claims arising out of the alleged legal
malpractice. Vafi v McCloskey (2011) 193 Cal.App.4th 874, 882.
The limitations period is tolled during the time that plaintiff has not sustained actual
injury. CCP 340.6(a)(1). However, as a matter of law, the plaintiff suffered an actual
injury on the dates that his “fraud” cause of action against the doctors were dismissed.
Plaintiff was on notice no later than August 26, 2010 that he was unsuccessful in his
efforts to sue the doctors for fraud. Pursuant to Laird v Blacker (1992) 2 Cal.4th 606,
the statute of limitations began to run at the time the underlying case was dismissed
and judgment was entered against plaintiff. That time was not tolled during the appeal
of the Hanley judgment. Laird v Blacker (1992) 2 Cal.4th 606, 615. As stated in Laird
, “The policy behind the limited tolling periods in the statute is clear. If we nonetheless
hold that the statute is tolled pending an appeal, we allow clients, with knowledge that
they have suffered actual injury, unilaterally to control the commencement of the
statute of limitations and hence undermine the legislative goal of resolving cases while
the evidence is fresh, witnesses are available, and memories have not faded. Laird, at
618. Actual injury occurs when the client suffers any loss or injury legally cognizable
as damages in a legal malpractice action based on the asserted errors or omissions.
Jordache Enterprises v Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 743, 748.

Plaintiff contends that a letter he received from defendants on September 2, 2010
extends the period in which he could file an action. That letter referenced a
September 1, 2010 conversation confirming that plaintiff did not want representation
regarding the entry of judgment in the case against the doctors. The letter also told
plaintiff that he must file a motion to Set Aside Judgment as soon as possible. Nothing
in this letter provides a basis to cure the defects, as it does not constitute continuing
representation and does not alter the date of actual injury. Even if the letter were to
constitute continuing representation until September 2, 2010, the claim is still barred
by the one year statute of limitations.

The demurrer to the 1st cause of action for Malpractice, 2nd cause of action for Breach
of Fiduciary Duty, and 3rd cause of action for Negligent Infliction of Emotional Distress
is sustained without leave to amend for failure to state facts sufficient to constitute a
cause of action. The claims are barred by the one year statute of limitations. CCP
340.6.

The Court disregards all arguments that were previously considered and rejected.
Defendants again argue that “Defendants never represented plaintiff in any relevant
underlying matter,” contending that plaintiff’s authority, relied on by the Court in its
submitted ruling of June, 7, 2013, is incorrect. The Court previously overruled the
demurrer on that ground and considers the argument on this point to be an improper
motion for reconsideration of the ruling on the demurrer to the 3AC.

Defendants also challenge the claim for emotional distress damages in the Negligence
cause of action. However, a challenge to a claim for emotional distress damages is
made by a motion to strike, not a demurrer. However, the claim for negligence, like
the claim for malpractice, is barred by the statute of limitations.

The Court is aware that it previously overruled a demurrer on statute of limitations
grounds as to LoPresti only. The grounds for that demurrer were that LoPresti was not
named in the action until June of 2012, and therefore the action was filed more than
one year from the date plaintiff alleged he discovered the malpractice in mid-
September of 2010. This was a different ground than the ground raised in this
demurrer.

A demurrer must be sustained without leave to amend absent a showing by plaintiff
that a reasonable possibility exists that the defect can be cured by amendment. Blank
v Kirwan (1985) 39 Cal.3d 311, 318. The burden of proving such reasonable possibility
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rests squarely on the plaintiff. Torres v City of Yorba Linda (1993) 13 Cal.App.4 1035,
1041. Plaintiff has not met that burden.

The prevailing party shall prepare a formal order and proposed judgment for the
Court’s signature pursuant to C.R.C. 3.1312.

2011-00110785-CU-PN

Alexander A. De Los Reyes vs. Pre Paid Legal Services, Inc.

Nature of Proceeding: Motion to File Amended Complaint

Filed By: De Los Reyes, Alexander

Plaintiff’s Motion to File a “Fifth” Amended Complaint is denied.

Defendant’s Request for Judicial Notice is granted.

The motion does not comply with CRC 3.1324. That rule requires that a motion to
amend state what allegations in the previous pleading are sought to be deleted, if any,
and where, by page, paragraph, and line number, the deleted allegations are located.
The motion must also state what allegations are proposed to be added to the previous
pleading, if any , and where, by page, paragraph, and line number the additional
allegations are located. CRC 3. 1324(a)(2)(3). A separate declaration must
accompany the motion and must specify:(1) the effect of the amendment (2) why the
amendment is necessary and proper and (3) when the facts giving rise to the amended
allegations were discovered, and (4) the reasons why the request for amendment was
not made earlier. CRC 3.1324(b).

Plaintiff’s motion meets none of the above requirements.

Aside from the procedural defects noted above, plaintiff admittedly is not seeking to
amend to add any allegations as to the moving defendants. All new allegations are to
be asserted against new parties.

The Court is concurrently dismissing the Fourth Amended Complaint against the
remaining defendants on the ground it is barred by the statute of limitations.

Therefore, the motion to amend is denied.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.