Case Number: SC117432    Hearing Date: July 29, 2014    Dept: P

TENTATIVE RULING – DEPT. P

JULY 29, 2014 CALENDAR No: 3

SC117432 — DARNELL v. SWANSON LAW, et al.

DEMURRER TO SECOND AMENDED COMPLAINT

The complaint at bar alleges one cause of action, for legal malpractice (in connection with an unfiled personal injury action). Plaintiff asserts that Defendants failed to file a personal injury action on her behalf prior the expiration of the two-year statute of limitations on her personal injury claim. Defendants, representing themselves in propria persona, demur to the malpractice claim, asserting that the claim is time- barred under the one-year provision of CCP 340.6.

Defendants served Plaintiff with the motion at bar by personal service via registered process server (as ordered by the Court on April 16, 2014). Nevertheless, Plaintiff failed to oppose the motion. It is not the Court’s function to act as Plaintiff’s “back-up” counsel. Indeed: “There is neither reason nor justification for compelling a trial judge to act as a sort of advisory or ‘backup’ counsel.” Gagosian v. Burdick’s Television and Appliances (1967) 254 Cal.App.2d 316, 318. This is true notwithstanding Plaintiff is representing herself; a litigant who decides to appear in propria persona “is entitled to the same, but no greater, consideration than other litigants and attorneys.” Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638; accord, Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193.

In any event, the demurrer has merit:

CCP 340.6(a) provides in pertinent part that: “[a]n 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, or four years from the date of the wrongful act or omission, whichever occurs first.” The running of the statute must appear “clearly and affirmatively” from the dates alleged in the complaint. Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.

The Court concludes that, as is explained in the moving brief, Plaintiff has not properly pled facts demonstrating that the second tolling provision of CCP 340.6, which tolls the limitation period for the time in which the attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred. See, Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782, 797 (a plaintiff “may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict the facts pleaded in the original complaint”); Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 384 (“a plaintiff’s failure to explain inconsistencies with his prior pleading entitles the court to read into the amended complaint the allegations of the superseded complaint”).

The Court concludes that this action is time-barred under CCP 340.6.

Demurrer is sustained without leave to amend. Defendants are to serve and lodge a proposed order pursuant to CRC 3.1312. They are to concurrently serve and lodge a proposed judgment of dismissal.

NOTICE

Defendants shall give notice of today’s rulings and orders and timely file proof of service thereof, pursuant to CCP 1019.5 and CRC 3.1312.