Case Number: BC707076 Hearing Date: August 08, 2018 Dept: 32

JOSE FLORES,

Plaintiff,

v.

DANIEL B. SPITZER.,

Defendant.

Case No.: BC707076

Hearing Date: August 8, 2018

[TENTATIVE] order RE:

DEMURRER TO THE COMPLAINT

BACKGROUND

Plaintiff Jose Flores (“Plaintiff”) alleges four causes of action against his former attorney Defendant Daniel Spitzer (“Defendant”) including (1) breach of written contract; (2) breach of fiduciary duty; (3) legal malpractice; and (4) fraud.

ANALYSIS

A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff’s ability to prove those allegations. (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.) The court must treat as true all of the complaint’s material factual allegations, but not contentions, deductions or conclusions of fact or law. (Id. at 732–33.) The complaint is to be construed liberally to determine whether a cause of action has been stated. (Id. at 733.)

Defendant demurs to the Complaint on the grounds that the claims are barred by the statute of limitations and duplicative of the cause of action for legal malpractice.

Based on a reading of the complaint, all causes of action are duplicative of the legal malpractice cause of action. “Where duplicative causes of action add nothing by way of factual theory, it is proper to sustain a demurrer.” (Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135.)

The Court takes judicial notice of the substitution of attorney filed in BC584674, the underlying case, on February 16, 2017. Plaintiff filed the instant action against Defendant on May 22, 2018. As such, the instant action is barred by the one year statute of limitations for claims against attorneys under CCP §340.6. Plaintiff’s Complaint alleges that he did not sustain actual injury until the Court of Appeal affirmed the dismissal of the underlying Complaint. (Complaint ¶18.) However, a Plaintiff sustains actual injury when the trial court dismissed the underlying action and Plaintiff is compelled to incur legal costs and expenditures in pursuing an appeal, but the limitations period is not tolled pending an appeal of the adverse judgment or dismissal. (See Laid v. Blacker (1992) 2 Cal.4th 606). Plaintiff does not oppose this motion to contend the statute of limitations is tolled under circumstances specified in CCP §340.6.

As such, the demurrer is SUSTAINED WITH LEAVE TO AMEND.