2013-00153498-CU-BC

Michael L Klein vs. Clayeo C Arnold

Nature of Proceeding:   Hearing on Demurrer to Amended Complaint

Filed By:  Magarian, Toby M.

The demurrer of defendants Clayeo C. Arnold, APC, et al.’s to the First Amended
Complaint (“1AC”) is SUSTAINED with leave to amend, as follows.

Moving counsel is admonished because the notice of demurrer does not provide notice
of the Court’s tentative ruling system, as required by Local Rule 1.06, and does not
provide the correct address for Dept. 54.  Moving counsel is directed to contact plaintiff
and advise him/her of Local Rule 1.06 and the Court’s tentative ruling procedure and
the manner to request a hearing.  If moving counsel is unable to contact plaintiff
prior to hearing, moving counsel is ordered to appear at the hearing in person or
by telephone.

Both moving counsel and plaintiff are admonished for failing to comply with CRC Rule
3.1110(b)(3)-(4).

Plaintiff is admonished for failing to comply with CRC Rule 2.111(3).

This is a legal malpractice action which was commenced on 10/18/2013.  The 1AC
filed 2/11/2014 purports to assert five (5) causes of action (“COA”) for Professional
Negligence, Breach of Fiduciary Duty, Breach of Contract, Intentional & Negligent
Misrepresentation, and Intentional & Negligent Infliction of Emotional Distress.

Defendants now demur to all of the COA in the 1AC on the grounds each is barred by
the one year statute of limitations found in Code of Civil Procedure §340.6 and each is
uncertain since the 1AC fails to specify the date of any of the alleged conduct
attributed to defendants.

Plaintiff opposes, arguing primarily that the limitations period set forth at Code of Civil
Procedure §340.6 does not commence until plaintiff discovers the alleged wrongdoing
and that here, such discovery did not occur in this case until well after plaintiff obtained  new counsel on 5/14/2012.  The opposition also insists the 1AC is not uncertain.

At the outset, the Court notes that the 1AC (like the original complaint) is completely
devoid of even a single date on which any of defendants’ conduct allegedly occurred.
Plaintiffs failed to state when their legal representation by defendants began or ended.
They also failed to specify the date(s) on which defendants allegedly made the
th
misrepresentations described in the 4   COA, even though such specificity has long
been required by California pleading rules. (See, e.g., Tarmann v. State Farm Mut.
Auto. Ins. Co . (1991) 2 Cal.App.4th 153, 157-158 [complaint must plead “the names of
the persons who made the allegedly fraudulent misrepresentations, their authority to
speak, to whom they spoke, what they said or wrote, and when it was said or written”].)
Accordingly, the Court hereby sustains the demurrer to each COA on the ground of
uncertainty since the four corners of the 1AC fails to contain any facts which establish
that the COA were timely asserted against defendants.

With respect to the other ground asserted by defendants, plaintiff contends the statute
of limitations does not commence until the alleged wrongdoing is discovered.  To be
more precise, Code of Civil Procedure §340.6(a) provides that the limitations period
commences upon the earlier of the date on which plaintiff actually discovers the
wrongdoing attributed to the defendant attorneys or on which plaintiff, had s/he
exercised reasonable diligence, should have made the discovery.  The statute also
provides for the tolling of the limitations period when certain other circumstances exist.
(Code Civ. Proc. §340.6(a)(1)-(4).)

However, to the extent plaintiff here insists the 1AC’s various COA are timely as a
result of the delayed discovery of the underlying wrongdoing, the 1AC must in order to
invoke the delayed discovery rule must specifically plead facts which show not only (1)
the time and manner of discovery but also (2) the inability to have made the discovery
earlier despite reasonable diligence. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35
Cal.4th 797, 808.)  Since the 1AC is devoid of a single date on which any alleged
wrongdoing occurred and since the 1AC also lacks any specific date on which the
discovery of defendants’ alleged wrongdoing occurred, the present pleading of
plaintiffs’ COA is clearly deficient inasmuch as it fails even to suggest this action was
timely commenced within the meaning of §340.6.  For these reasons, the demurrer on
the statute of limitations ground is sustained as well.

The Court need not, and does not, decide here whether any of the COA asserted in
the 1AC “relate back” to the original complaint, which consisted of little more than a
single allegations regarding jurisdiction and a “list” of the theories of liability asserted
by plaintiffs.

Since this is the first challenge to the complaint on which this Court has opportunity to
rule, leave to amend is granted.  Plaintiffs may file and serve a second amended
complaint no later than 7/14/2014.  Although not required by court rule or statute,
plaintiffs are directed to present a copy of this order when the amended
complaint is presented for filing.

Defendants to respond within 10 days if the amended complaint is personally served,
15 days if served by mail.

If defendant demurs to the amended complaint or moves to strike, a copy of the
amended complaint shall be included with the moving papers.