Case Number: 14K00018    Hearing Date: September 30, 2014    Dept: 77

Defendants William W. Bloch and Excelus Law Group, Inc.’s Demurrer to Plaintiff’s Complaint is SUSTAINED WITHOUT LEAVE TO AMEND. CCP § 430.10(e).

Defendant’s request for judicial notice is granted. A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. The Court takes judicial notice of Defendants’ Exhibits A and B.

The Complaint in this case alleges wrongful acts by an attorney and law firm arising out of their performance of professional services; i.e., that the attorneys failed to act to set aside a default judgment. Such an action must be commenced within four years from the date of the wrongful act or omission; or one year after discovery of the facts constituting the wrongful act or omission, whichever occurs first. (CCP § 340.6(a).)

Here, this action is barred by the statute of limitations. The Complaint was filed on January 3, 2014, and on its face it alleges wrongful conduct occurring in 2007. Thus, the action was not commenced within four years of the wrongful conduct.

Alternatively, the action also was not commenced within one year of the discovery of facts constiuting the wrongful conduct. From the judicially noticed documents, plaintiff had knowledge the facts underlying her cause of action no later than November 20, 2012, when she filed a motion to set aside the defaut judgment. The January 3, 2014, Complaint thus was filed more than one year after that discovery.

For each of the above independent reasons, the demurrer is sustained as the Complaint is time-barred.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. Goodman v. Kennedy (1976) 18 Cal.3d 335, 348. The burden is on the complainant to show the Court that a pleading can be amended successfully. Here, plaintiff has failed to file an opposition. As such, the court has no reason to conclude that there is a basis for granting leave to amend. Accordingly, the demurrer is sustained without leave to amend.

Moving party to give notice.