Case Name: Nhan Tran v. Lily Huang, et al.
Case No.: 16CV299625

Defendant Amiel Wade’s Demurrer to Complaint for Damages

Factual and Procedural Background

On or about September 30, 2014, plaintiff Nhan Tran (“Tran”) retained attorney, defendant Lily Huang (“Huang”), to represent her in an action against her ex-husband (“Underlying Family Law Action”). (Complaint, ¶¶5 – 6 and Exh. A.) On or about September 4, 2014, plaintiff Tran retained defendant Amiel Wade (“Wade”) to represent her in an action against her ex-husband and her ex-husband’s girlfriend (“Underlying Civil Action”). (Complaint, ¶¶5 – 6 and Exh. B.) The essential allegations of the two actions were that plaintiff Tran’s ex-husband, Linden Crawforth, and his girlfriend, Cristina Griffith, conspired to strip the marital estate of assets and that large sums of money were diverted from the marital estate in an effort to defraud plaintiff in her dissolution of marriage action. (Complaint, ¶6.)

Defendant Huang breached her duty of care to plaintiff Tran by incorrectly entering into a global settlement of the two underlying actions, failing to set aside the resulting incorrect judgment, failing to communicate the partial nature of the settlement, and failing to adequately communicate with plaintiff. (Complaint, ¶8.)

Defendant Wade breached his duty of care to plaintiff Tran by entering a dismissal of the Underlying Civil Action in which he represented plaintiff without first speaking to defendant Huang and failing to explain the nature of the dismissal to plaintiff. (Complaint, ¶9.)

As a result of defendants’ conduct, plaintiff Tran lost her right to recover the money and property diverted from her marital estate, an amount in excess of $500,000, and incurred additional attorney fees in trying to cure the defendants’ errors. (Complaint, ¶10.)

On September 2, 2016, plaintiff Tran filed a complaint against defendants Huang and Wade asserting a single cause of action for negligence.

On October 19, 2016, defendant Huang filed an answer to plaintiff Tran’s complaint.

On November 14, 2016, defendant Wade filed the motion now before the court, a demurrer to plaintiff Tran’s complaint.

I. Request for Judicial Notice.

In support of his demurrer, defendant Wade requests judicial notice of various court records from the underlying actions, a hearing transcript, statutory law, rules of professional conduct, and emails. Plaintiff Tran objects to the request for judicial notice.

With regard to the statutory law and the rules of professional conduct, judicial notice is mandatory. (See Evid. Code, §451, subd. (a) and (c)—“Judicial notice shall be taken of … the public statutory law of this state” and “rules of professional conduct for members of the bar adopted pursuant to Section 6076 of the Business and Professions Code.”

With regard to court records, Evidence Code section 452, subdivision (d) states that the court may take judicial notice of “[r]ecords of any court of this state.” Evidence Code section 452 and 453 permit the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (People v. Woodell (1998) 17 Cal.4th 448, 455.)

With regard to reporter’s transcripts, appellate courts have properly considered reporter’s transcripts in the course of reviewing a lower court’s decision. (See People v. Meloney (2003) 30 Cal.4th 1145, 1152 at footnote 3; In re Pipinos (1982) 33 Cal.3d 189, 195, 198 and footnote 4; People v. Murray (1978) 77 Cal.App.3d 305, 308; and In re Beal (1975) 46 Cal.App.3d 94, 99.)

Defendant Wade provides no legal authority (and the court is aware of none) which would allow the court to take judicial notice of an email communication.

Accordingly, defendant Wade’s request for judicial notice is GRANTED, in part, and DENIED, in part. Defendant Wade’s request for judicial notice, numbers 7, 10, and 13 are DENIED. Defendant Wade’s request for judicial notice is otherwise GRANTED. To the extent the court takes judicial notice of court records, the court takes judicial notice of the existence of the documents, not necessarily the truth of any matters asserted therein.

II. Demurrer.

“Where the dates alleged in the complaint show the action is barred by the statute of limitations, a general demurrer lies.” (Weil & Brown, CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2016) ¶7:50, p. 7(I)-30 citing Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995, et al.) “The running of the statute must appear ‘clearly and affirmatively’ from the dates alleged. It is not enough that the complaint might be barred.” (Id. citing Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4th 32, 42, et al.)

Defendant Wade demurs to the only cause of action for negligence on the ground that plaintiff’s claim is barred by Code of Civil Procedure section 340.6 which sets forth the statute of limitations for an action against an attorney. That section states, in relevant part:

(a) 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 the 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. In no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist:
(1) The plaintiff has not sustained actual injury;
(2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred;
(3) The attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney, except that this subdivision shall toll only the four-year limitation; and
(4) The plaintiff is under a legal or physical disability which restricts the plaintiff’s ability to commence legal action.

“It is well settled that the one-year limitations period of section 340.6 is triggered by the client’s discovery of the facts constituting the wrongful act or omission, not by his discovery that such facts constitute professional negligence, i.e., by discovery that a particular legal theory is applicable based on the known facts. It is irrelevant that the plaintiff is ignorant of his legal remedy or the legal theories underlying his cause of action.” (Peregrine Funding, Inc. v. Sheppard, Mullin, Richter & Hampton, LLP (2005) 133 Cal.App.4th 658, 685; punctuation omitted; see also Pompilio v. Kosmo (1995) 39 Cal.App.4th 1324, 1328—“discovery of facts essential to malpractice and the suffering of actual harm from the malpractice establish a cause of action and start the statute of limitations.”)

Based on the judicially noticed court records, defendant Wade filed a request for dismissal of plaintiff Tran’s Underlying Civil Action on December 17, 2014. Defendant Wade asserts further that plaintiff Tran met with him on that date, informed him of the settlement in the Underlying Family Law Action, provided him with a copy of the transcript from the Underlying Family Law Action and showed him that plaintiff Tran had agreed to dismiss the Underlying Civil Action in its entirety. However, the basis for this assertion is not from any judicially noticed facts. “In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long settled rules.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213 – 214.) “[A] court cannot consider … the substance of declarations, matter not subject to judicial notice, or documents judicially noticed but not accepted for the truth of their contents.” (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)

Alternatively, defendant Wade demurs to the complaint on the ground that, as a matter of law, he did not breach his duty to plaintiff Tran. “In order to establish a cause of action for legal malpractice the plaintiff must demonstrate: (1) breach of the attorney’s duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a proximate causal connection between the negligent conduct and the resulting injury; and (3) actual loss or damage resulting from the negligence.” (Carlton v. Quint (2000) 77 Cal.App.4th 690, 699; see also CACI No. 600.) “It is well settled that an attorney is liable for malpractice when his negligent investigation, advice, or conduct of the client’s affairs results in loss of the client’s meritorious claim.” (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 900.)

Defendant Wade contends the issue of breach can be decided by the court as a matter of law. (See Unigard Ins. Group v. O’Flaherty & Belgum (1995) 38 Cal.App.4th 1229, 1237-1238—“The question of whether the conduct of the O’Flaherty law firm breached the duty by failing to conform to the standard of care is a matter of law only if reasonable minds cannot differ on whether the conduct does or does not satisfy the standard of care. In all other cases the question will be treated as a question of fact, as it is in any other negligence action.”) Defendant Wade directs the court to the transcript from the Underlying Family Law Action in which plaintiff Tran entered into a settlement and one of the terms of the settlement that plaintiff Tran agreed to was a dismissal of the Underlying Civil Action in its entirety.

Here, plaintiff Tran alleges defendant Wade breached his duty of care by entering a dismissal without first speaking to defendant Huang. “Had [defendant Wade] spoken with said Defendant he would have learned that the recitation of the settlement was in error.” (Complaint, ¶9(a).) Plaintiff Tran alleges additionally that defendant Wade breached his duty of care by failing to explain the nature of the dismissal or the effect such a dismissal would have on the case. “Had he provided such an explanation, Plaintiff would have informed him of the true facts and the dismissal would not have been entered.” (Complaint, ¶9(b).) The hearing transcript unequivocally shows that plaintiff Tran agreed to dismiss the Underlying Civil Action in its entirety, that plaintiff understood the terms of the settlement, had an opportunity to discuss those terms with her attorney, and agreed to abide by the terms of the settlement. Based on these unequivocal statements, the court holds, as a matter of law, defendant Wade cannot be liable for negligence on the asserted breaches. In opposition, plaintiff Tran asserts a number of additional breaches. However, the breaches asserted in opposition are not stated in the complaint.

Accordingly, defendant Wade’s demurrer to plaintiff Tran’s complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for negligence is SUSTAINED with 10 days’ leave to amend.