Case Number: 19PSCV00238 Hearing Date: March 16, 2020 Dept: J

HEARING DATE: Monday, March 16, 2020

NOTICE: See below[1]

RE: Fisch v. Gale (19PSCV00328)

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Defendant Lee W. Gale’s DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

Responding Party: Plaintiff, Scott Fisch

Tentative Ruling

Defendant Lee W. Gale’s Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED. The court will hear from counsel for Plaintiff as to whether leave to amend is requested and will require an offer of proof if so.

Background

Plaintiff Scott Fisch (“Plaintiff”) alleges that on or about March 2013, Plaintiff entered into a contract with attorney Lee W. Gale (“Gale”), wherein Gale agreed to provide legal services to Plaintiff in four matters: (1) an administrative case involving Plaintiff’s teaching credential (“administrative case”), (2) a criminal case styled People v. Fisch, Case No. KA102633 (“criminal case”), (3) a civil case styled Fisch v. De Avila, Case No. KC066014 (“civil defamation case”) and (4) a civil case styled Fisch v. CVUSD (“the unfiled civil breach of contract case”). Plaintiff alleges that, on or about April 2013 through June 2018, Gale breached the contract in numerous respects. On September 18, 2019, Plaintiff filed a First Amended Complaint (“FAC”), asserting a cause of action against Gale for:

Professional Negligence

A Case Management Conference is set for March 16, 2020.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

“A demurrer on the ground of the bar of the statute of limitations will not lie where the action may be, but is not necessarily, barred.” (Moseley v. Abrams (1985) 170 Cal.App.3d 355, 359-360.) “It must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred.” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.)

Discussion

Gale demurs, per CCP § 430.10(e), to Plaintiff’s complaint, on the basis that the sole cause of action alleged therein (i.e., for Professional Negligence) fails to state facts sufficient to constitute a cause of action.

November 5, 2018 General Order

Pursuant to the November 5, 2018 General Order Re Mandatory Electronic Filing for Civil, litigants are required to provide printed courtesy copies of, inter alia, pleadings and motions (including attachments such as declarations and exhibits) of 26 pages or more, pleadings and motions that include points and authorities and demurrers. Here, the court did not receive a courtesy copy of the papers filed by the parties. The parties are admonished. The parties are instructed to comply with the court’s general order in any future filings.

Request for Judicial Notice/Exhibits

The court rules on Gale’s Request for Judicial Notice (“RJN”) as follows: GRANTED as to Exhibit 1 (i.e., February 5, 2014 minute order in case styled People v. Fisch, Case No. KA102633); GRANTED as to Exhibit 2 (i.e., “Respondent’s Notice of Withdrawal of Request for Hearing” dated April 11, 2017) and GRANTED as to Exhibit 3 (i.e., December 14, 2018 minute order in Case No. KC066014, styled Fisch v. De Avila).

The court notes that Gale purports to attach Exhibits B-D to his demurrer. No such exhibits were attached. A demurrer, moreover, is based on the face of a pleading and judicially noticeable matters/documents. While Gale states that Exhibits B-D were “previously granted judicial notice by this Court in Defendant’s first demurrer), Gale has not requested judicial notice of these documents in the instant demurrer proceeding. Gale’s “Exhibits A-D IN Support of Defendant’s Demurrer to First Amended Complaint (Separately Lodged)” filed March 5, 2020 is STRICKEN.

California Rule of Court (“CRC”) Rule 3.1113

CRC Rule 3.1113(d) provides that “no opening or responding memorandum may exceed 15 pages.” The opposition filed by Plaintiff on March 4, 2020[2] violates this provision by attaching Plaintiff’s opposition filed December 23, 2019 as Exhibit 1 and his supplemental opposition filed January 27, 2020 as Exhibit 2. The court notes that Gale’s previous demurrer to the FAC was withdrawn on January 9, 2020 and that Gale’s current demurrer was filed on February 24, 2020; as such, the court will not consider Exhibits 1 and 2 attached to Plaintiff’s March 4, 2020 opposition.

Merits

Plaintiff has alleged, in relevant part, as follows: On or about March 2013, Plaintiff and Gale entered into a contract, wherein Gale agreed to provide legal services on behalf of Plaintiff for five matters, including 1) Plaintiff’s employment with Covina Valley Unified School District (“CVUSD”) concerning an alleged student hazing incident; 2) a criminal case entitled People v. Fisch, LASC Case Number KAI102633 (“criminal case”), 3) a civil case entitled Fisch v. De Avila, LASC Case No. KC066014 (“civil defamation case”), 4) a civil case entitled Fisch v. CVUSD which was not filed (“unfiled breach of contract case”) and 5) a California Teaching Credential administrative disciplinary action (“teaching credential case”). (FAC, ¶4.) The student hazing matter was resolved in May of 2013. (Id., ¶7.) On or about May 9, 2013 Defendant filed the civil defamation case. (Id., ¶9.) The criminal case was litigated from May 2013 until February 2014. (Id., ¶11.) On or about February 5 or 7, 2014, Plaintiff entered into a plea agreement to resolve the criminal case. (Id., ¶12.) On or about February 11, 2014, Plaintiff entered into a written agreement to separate from his employment with CVUSD. (Id., ¶13.) On or about March 3, 2015, Gale obtained a judgment in the civil defamation case in the amount of $40,000.00; however, the spelling of the defendant’s last name was incorrect, and Gale failed to correct the judgment. (Id., ¶17.) On or about April 25, 2015, the California Commission on Teaching Credentials revoked Plaintiff’s teaching credential. (Id., ¶18.) Although Gale promised Plaintiff that he would file an appeal with the CTC or the court to have Plaintiff’s teaching credential reinstated, Gale did not do so. (Id.) On or about April 30, 2017, Plaintiff emailed Gale and requested that the unfiled breach of contract case be filed immediately, but Gale failed to respond. (Id., ¶25.) On or about May 18, 2017, Plaintiff’s criminal convictions in the criminal case were set aside and the criminal records was expunged. (Id., ¶26.)

The applicable statute of limitations for legal malpractice causes of action is CCP § 340.6. CCP § 340.6 states, in relevant part, that “[a]n 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 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. If the plaintiff is required to establish his or her factual innocence for an underlying criminal charge as an element of his or her claim, the action shall be commenced within two years after the plaintiff achieves postconviction exoneration in the form of a final judicial disposition of the criminal case. Except for a claim for which the plaintiff is required to establish his or her factual innocence, in no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist: . . . (2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred . . .”

Again, “[t]he continuous relationship tolling provision applies only so long as representation continues ‘regarding the specific subject matter in which the alleged wrongful act or omission occurred.’ (§ 340.6, subd. (a)(2)) Once representation on that matter ends, a client must bring timely suit, notwithstanding that the attorney may continue to represent the client on a range of matters . . .” (Beal Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 514, fn. 8.) “The test for whether the attorney has continued to represent a client on the same specific subject matter is objective, and ordinarily the representation is on the same specific subject matter until the agreed tasks have been completed or events inherent in the representation have occurred.” (Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1528.)

With regards to the “criminal case,” Plaintiff concedes that on February 5 or 7, 2014, Plaintiff entered into a plea agreement to resolve same. (Id., ¶12.) Plaintiff further acknowledges that on or about May 18, 2017, Plaintiff’s criminal convictions in the criminal case were set aside and the criminal records was expunged. (Id., ¶26.) Plaintiff, however, did not file this instant lawsuit until April 10, 2019, nearly two years later. While Plaintiff claims that “[o]n or about June 2018 to January 2019 Plaintiff did online research, reviewed public records, completed legal research and discovered Defendant had . . . lied to Plaintiff about the legal defenses available to Plaintiff in the criminal case and the negative impact on Plaintiff’s teaching career” this allegation does not constitute “concealment” for purposes of tolling the statute. As well, “in a criminal malpractice action actual innocence is a necessary element of the plaintiff’s cause of action.” (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 545.) Significantly, “a plaintiff must obtain postconviction relief in the form of a final disposition of the underlying criminal case—for example, by acquittal after retrial, reversal on appeal with directions to dismiss the charges, reversal followed by the People’s refusal to continue the prosecution, or a grant of habeas corpus relief—as a prerequisite to proving actual innocence in a malpractice action against former criminal defense counsel.” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1205.) This rule applies to convictions based upon guilty or no contest pleas as well as convictions based on trials before a judge or jury. (Id. at 1194.)

With regards to the “civil defamation case,” Plaintiff concedes that he obtained a default judgment on or about March 3, 2015, years before this lawsuit was instituted on April 10, 2019. (FAC, ¶17.) Again, Plaintiff has not pled facts regarding concealment for purposes of tolling the statute. At any rate, Plaintiff cannot show actual injury. Plaintiff cites to Gale’s misspelling of the civil judgment debtor’s name as grounds for Gale’s alleged professional negligence. (Id.) However, Plaintiff subsequently alleges that on/about June 2018 to January 2019 Plaintiff “file[d] all appropriate pleadings to have the judgment corrected” and resolved the case for $30,000.00 “because Armando De Avila aka Armando D’Avila was threatening to retire or file bankruptcy.” (Id., ¶29.) RJN Exhibit 3 reflects that the court in the civil defamation case granted Plaintiff’s motion to amend “nunc pro tunc” judgment entered on March 3, 2015. Plaintiff foes not allege that the failure to obtain the remaining $10,000.00 balance was due to the misspelling of the judgment debtor’s name or any other defect in the judgment obtained by Gale.

With regards to the “administrative case,” involving Plaintiff’s California teaching credential, Plaintiff concedes that he entered into a written agreement to separate from his employment on or about February 11, 2014 (Id., ¶13.) and that on or about April 25, 2015, the California Commission on Teaching Credentials revoked Plaintiff’s teaching credential. (Id., ¶18.) The purported negligent by Defendant, with respect to the agreement with CVUSD, happened on February 11, 2014, when the agreement was executed. Regarding the CTC hearing, Plaintiff should have filed an action by April 25, 2016. Plaintiff admittedly alleges that Gale promised Plaintiff that he would file an appeal with the CTC or the court to have Plaintiff’s teaching credential reinstated, but did not do so. (Id., ¶18) However, RJN Exhibit 2 reflects that Plaintiff withdrew his request for an administrative hearing with the CTC via a notice dated April 11, 2017, which Plaintiff had requested on or about March 26, 2015. Plaintiff has again failed to plead any facts relative to concealment.

With regard to the unfiled breach of contract case, Plaintiff concedes that on or about April 30, 2017, Plaintiff emailed Gale and requested that the unfiled breach of contract case be filed immediately, but Gale failed to respond. (FAC, ¶25.) Again, Plaintiff has failed to plead any facts regarding concealment.

Gale’s demurrer, then, is SUSTAINED.

[1] The demurrer was filed and mail-served on February 24, 2020 for a hearing on March 16, 2020. The motion should have been filed no later than February 21, 2020, with an additional 5 calendar days’ notice given for mailing. With that said, the demurrer has been opposed on the merits. “It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion.” (Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930.) Accordingly, the court elects to proceed to the merits of the demurrer.

[2] The court notes that the opposition was technically due on March 3, 2020. The opposition was served via email on that date. The court will consider same, on the basis that no prejudice has been articulated and that the demurrer itself was insufficiently noticed (see above).