2017-00220422-CU-PN

Sohrab Mansourian vs. Bowman & Associates

Nature of Proceeding: Hearing on Demurrer to Second Amended Complaint

Filed By: Fayard, Gregory T.

The demurrer of Defendants Bowman & Associates, PC dba The Law Offices of Bowman & Associates (Bowman), and Christopher C. Phillips (collectively “Defendants”) to the second amended complaint (SAC) is SUSTAINED with leave to amend.

Defendants’ requests for judicial notice of court documents are GRANTED. In the future, defense counsel shall file all requests for judicial notice as separate documents pursuant to CRC 3.1113(l).)

Plaintiff Sohrab Mansourian’s (Mansourian) third amended complaint (TAC) filed without leave of court on 6/19/18 is STRICKEN.

This is a dispute between attorney and client. Mansourian was the client. The SAC contains causes of action against one or both Defendants for breach of contract and negligence. Mansourian alleges Defendants misadvised him about the treatment of his student loans, which he understood would be discharged in bankruptcy.

The demurrer focuses on the one-year / four-year statute of limitations in CCP § 340.6.

Subd. (a) of that section reads, in relevant part:

(a) An action against an attorney for a wrongful act or omission…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. […] Except for a claim for which the plaintiff is required to establish his or her factual innocence, 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.

Defendants argue the allegations demonstrate that the action is time-barred. The timeline of events alleged in the SAC is the following: (1) Defendants represented

Mansourian in his bankruptcy case between 11/15/10 and 5/06/16; (2) on 5/06/16 Mansourian received the discharge order from the bankruptcy court; (3) Bowman breached the representation agreement on or about 10/13/16, when Mansourian received notices his lender sought to collect on the student loans; (4) Mansourian discovered the breach of contract when he received these collection notices; (5) on 1/05/17 Mansourian was sued in two lawsuits based on the outstanding student loans;

(6) Defendants negligently caused damage on 10/13/16 and 1/05/17; and (7) Mansourian commenced this action on 10/11/17. Notably, Mansourian alleges that Defendants breached the contract on or about 10/13/16–after the representation had ended.

Citing the one-year provision in CCP § 340.6, Defendants argue both causes of action are time-barred because Mansourian did not file the action until more than one year after the representation had ended. Defendants also argue that the allegations do not establish any delayed discovery of the causes of action that might overcome the one-year statute.

Mansourian concedes that the delayed-discovery allegations are insufficient. (See Opp. at 4:16-22.) Given the concession, the demurrer is sustained.

Despite his concession of the merits, Mansourian argues the demurrer is moot because he filed the TAC. Because Mansourian did not obtain leave of court to do so, the TAC is stricken and does not render the demurrer moot. A plaintiff may only file an amended pleading once without leave of court. (See CCP § 472.)

Defendants ask the court to deny leave to amend. They base the request on judicially noticeable records generated in the bankruptcy proceedings. They argue the bankruptcy trustee or court sent these records directly to Mansourian and notified him that his student loans were not dischargeable. Because Mansourian assertedly received these records outside the limitations period, they argue he cannot allege delayed discovery, which requires an allegation the plaintiff acted diligently once on notice of a potential legal claim.

Although the court may take judicial notice of the contents of bankruptcy records, it may not take judicial notice of the asserted fact that Mansourian received the records, with one exception: Mansourian alleges he received the bankruptcy 10/06/16 discharge order. The court thus accepts that fact and the contents of the order.

Among many other things, the discharge order provides that “[s]ome debts are not discharged,” including “debts for most student loans[.]” By its terms, then, the order did not notify Mansourian that his student loans were not discharged. It only informed him that most student loans are not dischargeable. Furthermore, Mansourian could have been relieved of any duty to inquire into the dischargeability issue given his fiduciary relationship with Defendants, his legal counsel. (See Hobbs v. Bateman Eichler, Hill Richards (1985) 164 Cal.App.3d 174, 202-203.)

In short, the allegations and judicially noticeable documents do not command an order denying leave to amend, and the court is not persuaded leave to amend should be denied.

The court expresses no opinion about the sufficiency of the allegations in the stricken TAC.

Disposition

The demurrer is sustained with leave to amend.

No later than 8/07/18, Mansourian may file and serve a third amended complaint; response(s) due within 30 days thereafter, 35 days if the third amended complaint is served by mail.

Although not required by any statute or rule of court, Mansourian is requested to attach a copy of the instant minute order to the third amended complaint to facilitate the filing of the pleading.

If any defendant intends to demur to the third amended complaint or move to strike, it shall determine if any other defendant who has appeared in this action also intends to demur or move to strike. If so, all such defendants shall coordinate a single hearing date for the demurrers and motions to strike. Additionally, a copy of the third amended complaint shall be included with the moving papers.