Case Number: 19STCV04288 Hearing Date: May 13, 2019 Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

CHATEAU LAKESIDE PARTNERS, LLC,

Plaintiff,

vs.

LAW OFFICE OF FREDERICK L. SPINRAD, etc., et al.,

Defendants.

CASE NO.: 19STCV04288

[TENTATIVE] ORDER RE: DEFENDANT’S DEMURRER TO COMPLAINT

Date: May 13, 2019

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Defendant James McCone (“Moving Defendant”)

RESPONDING PARTY: Plaintiff Chateau Lakeside Partners, LLC

The Court has considered the moving, opposition, and reply papers.

Plaintiff filed a complaint against Defendants arising from alleged subpar legal representation in an unlawful detainer action involving Plaintiff. The basis of Plaintiff’s complaint is that a 3-day notice that it believed was legally valid and served validly upon the tenant whom it sought to evict via the unlawful detainer action was not in fact legally valid. Plaintiff’s complaint alleges causes of action for: (1) legal malpractice; and (2) breach of fiduciary duty.

Moving Defendant filed a demurrer to the first and second causes of action in Plaintiff’s complaint.

MEET AND CONFER

The meet and confer requirement has been met.

JUDICIAL NOTICE

Moving Defendant’s request for judicial notice is GRANTED.

DISCUSSION

Statute of Limitations

“An action against an attorney for a wrongful act or omission . . . 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.” (Code Civ. Proc. § 340.6(a).) Nevertheless, where an attorney “continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred” the statute of limitations is tolled during that time period. (Code Civ. Proc. § 340.6(a)(2).)

The Complaint alleges that Moving Defendant provided legal services to Plaintiff in the unlawful detainer action as its attorney of record until February 28, 2018. Thus, for statute of limitations purposes, Plaintiff’s legal malpractice claim was tolled until that date and Plaintiff’s complaint is this action is timely as the complaint here was filed on February 7, 2019.

Therefore, there is no statute of limitations bar to Plaintiff’s case.

First Cause of Action

The elements of a cause of action for legal malpractice are: (1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney’s negligence.” (Jones v. Whisenand (2017) 8 Cal.App.5th 543, 550.) “In a litigation malpractice action, the plaintiff must establish that but for the alleged negligence of the defendant attorney, the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred.” (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.) “To prevail in a legal malpractice action, [s]imply showing the attorney erred is not enough.” (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 166.)

Plaintiff does not respond to Moving Defendant’s argument in his demurrer with respect to the sufficiency of the first cause of action. Plaintiff presents mere factual assertions that the complaint properly sets forth the first cause of action without any citation to legal authority with respect to the elements of a legal malpractice cause of action. Plaintiff’s complaint fails to state sufficient facts to establish a legal malpractice cause of action.

Therefore, Moving Defendant’s demurrer to the first cause of action in Plaintiff’s complaint is SUSTAINED with 20 days leave to amend.

Second Cause of Action

“In order to plead a cause of action for breach of fiduciary duty . . . the plaintiff must show the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach; the absence of any one of these elements is fatal to the cause of action.” (LaMonte v. Sanwa Bank California (1996) 45 Cal.App.4th 509, 517.)

Plaintiff does not cite any legal authority in its opposition to support its argument that it has stated a sufficient claim for breach of fiduciary duty. Plaintiff only presents factual arguments that its second cause of action is sufficient to constitute a cause of action.

Moving Defendant’s demurrer to the second cause of action in Plaintiff’s complaint is SUSTAINED with 20 days leave to amend.

Moving party to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 13th day of May 2019

Hon. Holly J. Fujie

Judge of the Superior Court