Case Number: EC068682 Hearing Date: August 24, 2018 Dept: A

Rockefeller v Alaynick

DEMURRER

Calendar: 13

Case No: EC068682

Hearing Date: 8/24/18

Action Filed: 5/23/18

Trial: None

MP: Defendant David Alaynick

RP: None

ALLEGATIONS:

Plaintiff (Queen) Yago Barbie Rockefeller alleges that she gave birth to (Prince) Yagito Skipper Rockefeller on May 25, 2014. She alleges that on May 29, 2014, the Department of Children and Family Services came to the hospital at Cedar Sinai Medical Center to have the child removed from her and placed the child in the care of foster parents, Christopher and Candice Samuels. Plaintiff alleges from June 3, 2014 to September 29, 2014, she received legal representation from Defendant David Alaynick, appointed counsel of children’s court. She alleges that Defendant chose not to represent her and gave her case to Jolene Metzger, who passed the case to Sherri Cunningham, who passed the case to Defendant, who then lost. The complaint was filed on May 23, 2018.

RELIEF REQUESTED:

Defendant demurs to the complaint.

DISCUSSION:

Defendant demurs to the complaint on the grounds that it fails to state any facts in support of her legal malpractice cause of action against him, and is barred by the statute of limitations.

The statute of limitations for a legal malpractice claim is 1 year after the plaintiff discovers, or through 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. (CCP §340.6(a).)

Here, the complaint alleges that Defendant represented Plaintiff until September 29, 2014 and that Plaintiff’s case was lost. Thus, the allegations of the complaint, on its face, shows that Plaintiff’s action was time barred as of September 29, 2015. This action was filed on May 23, 2018, which is nearly 4 years after Defendant ceased representing her and allegedly lost the case.

In addition, Plaintiff has not alleged sufficient facts to support her legal malpractice claim. “In a legal malpractice action arising from a civil proceeding, the elements 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.” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.)

In her complaint, Plaintiff has not alleged each element of a legal malpractice cause of action. At most, she alleges she retained Defendant from June 3 to September 29, 2014, and that Defendant lost her cause. None of the necessary elements of a legal malpractice claim have been alleged, such as Defendant’s duty and how he breached it, or how his legal representation of Defendant fell below that standard of care. There is also no showing of actual causation.

For the reasons above, the Court will sustain the demurrer. The Court will not grant leave to amend because the action is time-barred and Plaintiff has not alleged sufficient facts to constitute a legal malpractice claim against Defendant. In addition, Plaintiff has not opposed the demurrer to show how her cause of action may be cured with additional facts, nor has she requested leave to amend.

RULING:

Sustain the demurrer to the complaint without leave to amend.