18-CIV-04463 KAREN CUNDIFF, ET AL. VS. KENNETH SIMONCINI, ET AL.

KAREN CUNDIFF KENNETH SIMONCINI
CHARLES J. KATZ RUSSELL S. ROECA

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT TENTATIVE RULING:

Defendants Simoncini & Associates’s and Kenneth D. Simoncini’s (“Defendants”) Motion for Summary Judgment is DENIED. Defendants move for summary judgment solely on the basis that Plaintiffs’ cause of action for professional negligence is time-barred by Code of Civil Procedure §340.6. As the parties agree, 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 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.” Code of Civ. Proc. § 340.6(a).

The issue for the Court is whether it can say as a matter of law that Plaintiffs knew or should have known of Defendants’ malpractice more than one year before Plaintiffs filed suit. “When the issue is accrual, belated discovery is usually a question of fact, but may be decided as a matter of law when reasonable minds cannot differ.” Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 375 citing E–Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1320 see also Brewer v. Remington (Cal. Ct. App., Mar. 4, 2020, No. F076467) 2020 WL 1059201, at *9 (medical malpractice case).1 Under the undisputed facts of this case, the Court cannot say as a matter of law that Plaintiffs had facts or should have discovered them through reasonable diligence before August 27, 2027, one year before they filed suit, of all the elements of their cause of action.

The statute of limitations does not begin to run until the plaintiff knows all of the elements of his or her claim. As explained by the Supreme Court in a case cited by Defendants: “We therefore hold that in an action for professional malpractice against an attorney, the cause of action does not accrue until the plaintiff knows, or should know, all material facts essential to show the elements of that cause of action.” Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 190. One of the elements of a legal malpractice cause of action is that an attorney acted below the standard of care. CACI 600. Thus, in Village Nurseries, L.P. v. Greenbaum (2002) 101 Cal.App.4th 26, a case cited by Defendants, the plaintiff admitted in verified interrogatory responses that it had been advised of the gravity of the judge’s statements in ruling against plaintiff and advised that plaintiff might want to look into the possibility of malpractice given the judge’s statement. Id. at 43. The Court of Appeal held in this summary judgment case that these facts put plaintiff on notice of defendants’ wrongful acts or omissions. Id. at 45. Likewise, in Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, another case cited by Defendants, a bankruptcy report was highly critical of the attorneys’ participation in a Ponzi scheme, one plaintiff had information about the law firm’s fraudulent conduct, and plaintiffs knew or should have known that the primary wrongdoer had transferred $6 million to the law firm in violation of a court order. Id. at 682. Thus, the Court of Appeal found these facts, which the investors knew or should have known, put them on notice and barred their complaint. In contrast in this case, none of the material facts in Defendants’ Separate Statement demonstrate as a matter of law that the attorneys did anything wrong. They were simply acts in litigation. Losing a case, filing a cross-complaint, complaining about the cost of litigation or being threatened by an opposing party is not evidence that an attorney acted below the standard of care. If that were the case, then every client would have to sue an attorney when any adverse act occurred or risk being barred by the statute of limitations. Even when someone has the best attorney, cases are lost and a client does not always suspect that the failure has been because of the attorney. See Brewer v. Remington, 2020 WL 1059201, at *9 quoting Gutierrez v. Mofid (1985) 39 Cal.3d 892, 899 (medical malpractice cases). Thus, reasonable minds can come to different conclusions based on the evidence presented, and the Court cannot decide this issue as a matter of law. Baright v. Willis (1984) 151 Cal.App.3d 303, 311. In this case, the jury not this Court will need to decide the significance of the facts and whether they put unsophisticated plaintiffs on notice that their lawyer’s actions fell below the standard of care expected of an attorney.

Defendants’ Request for Judicial Notice is GRANTED pursuant to Evidence Code §452(d).

Defendants’ Objections to Evidence No. 1-5 are OVERRULED. Defendants Objections to Evidence No. 6 is SUSTAINED.