Judge: Alison Mackenzie, Case: 23STCV28830, Date: 2025-06-10 Tentative Ruling
Case Number: 23STCV28830 Hearing Date: June 10, 2025 Dept: 55
NATURE OF PROCEEDINGS: Hearing on Defendants' Motion
for Summary Judgment
Defendants' Motion for Summary Judgment is granted as to
the Complaint and denied as to the Cross-Complaint.
BACKGROUND
Plaintiff William B. Westwood
(Plaintiff) filed this action against his former attorney and law firm, Scott Alan Burroughs (Defendant), and Doniger
Burroughs (collectively “Defendants”),
alleging Defendants failed to adequately render legal services concerning a
copyright infringement claim against Armin Brott (Brott Matter).
The causes of action in the Complaint are: (1) Breach of
Contract; (2) Breach of Implied Covenant of Good Faith and Fair Dealing; (3)
Constructive Fraud; and (4) Professional Negligence.
Doniger Burroughs (Cross-Complainant)
filed a Cross-Complaint against Plaintiff, alleging: (1) Breach of Contract;
(2) Breach of Implied Covenant of Good Faith and Fair Dealing; and (3) Fraud.
Defendants filed a Motion for Summary Judgment or in the Alternative
Summary Adjudication, as to the Complaint and Cross-Complaint. Plaintiff
filed an Opposition.
LEGAL STANDARD
A party is
entitled to summary judgment only if there is no triable issue of material fact
and the party is entitled to judgment as a matter of law. § 437c, subd. (c). A
moving “defendant or cross-defendant has met his or her burden of showing that
a cause of action has no merit if the party has shown that one or more elements
of the cause of action, even if not separately pleaded, cannot be established,
or that there is a complete defense to the cause of action.” Code Civ. Proc., §
437c, subd. (p)(2). Once the defendant has satisfied that burden, the burden
shifts to the plaintiff to “show, by responsive separate statement and
admissible evidence, that triable issues of fact exist.” Ostyan v. Serrano
Reconveyance Co. (2000) 77 Cal.App.4th 1411, 1418, disapproved on other
grounds by Black Sky Cap., LLC v. Cobb (2019) 7 Cal.5th 156, 165; see
also Code Civ. Proc., § 437c, subd. (p)(2). Courts “liberally construe the
evidence in support of the party opposing summary judgment and resolve doubts
concerning the evidence in favor of that party.” Dore v. Arnold Worldwide,
Inc. (2006) 39 Cal.4th 384, 389.
To meet this burden of showing a cause of action cannot be
established, a defendant must show not only “that the plaintiff does not
possess needed evidence” but also that “the plaintiff cannot reasonably obtain
needed evidence.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 854 (Aguilar).
The supporting evidence can be in the form of affidavits, declarations,
admissions, depositions, answers to interrogatories, and matters of which
judicial notice may be taken. Id. at p. 855. “Once the defendant . . .
has met that burden, the burden shifts to the plaintiff . . . to show that a
triable issue of one or more material facts exists as to the cause of action or
a defense thereto.” Code Civ. Proc., § 437c, subd. (p)(2). The plaintiff may
not merely rely on allegations or denials of its pleadings to show that a
triable issue of material fact exists, but instead, “shall set forth the
specific facts showing that a triable issue of material fact exists as to the
cause of action.” Ibid. “If the plaintiff cannot do so, summary judgment
should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008)
159 Cal.App.4th 463, 467.
A plaintiff or cross-complainant moving for summary judgment “bears the
burden of persuasion that ‘each element of’ the ‘cause of action’ in question
has been ‘proved,’ and hence that ‘there is no defense’ thereto.” Aguilar,
25 Cal.4th at p. 850. “Once the plaintiff … has met that burden, the burden
shifts to the defendant … to show that a triable issue of one or more material
facts exists as to the cause of action or a defense thereto. The defendant …
shall set forth the specific facts showing that a triable issue of material
fact exists as to the cause of action or a defense thereto.” § 437c, subd.
(p)(1).
A triable issue of material fact exists if the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the party
opposing the motion in accordance with the applicable standard of proof. Ibid.
“When deciding whether to grant summary judgment, the court must consider
all of the evidence set forth in the papers (except evidence to which the court
has sustained an objection), as well as all reasonable inferences that may be
drawn from that evidence, in the light most favorable to the party opposing
summary judgment.” Avivi v. Centro Medico Urgente Medical Center (2008)
159 Cal. App. 4th 463, 467; Code Civ. Proc., § 437c, subd. (c).
COMPLAINT
I. Statute of Limitations
Defendant argues that each of Plaintiff’s causes of action
is time-barred.
“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.” Code Civ. Proc.,
§ 340.6, subd. (a). “Except for a claim for which the plaintiff is required to establish
the plaintiff’s factual innocence, the time for commencement of legal action
shall not exceed four years except that the period shall be tolled during the
time that … [¶] (1)The plaintiff has not sustained actual injury.” Ibid.
“In all cases other than actual fraud, whether the theory of liability is based
on the breach of an oral or written contract, a tort, or a breach of a
fiduciary duty, the one-year statutory period applies.” Levin v. Graham
& James (1995) 37 Cal.App.4th 798, 805.
The Code of Civil Procedure section 340.6, subdivision (a), “tolling
provision tolls both the one-year and the four-year provisions of the statute.”
Gurkewitz v. Haberman (1982) 137 Cal.App.3d 328, 332. “Section 340.6,
subdivision (a), states that … the prescriptive period [‘shall not’] be tolled
except under those circumstances specified in the statute. Thus, the
Legislature expressly intended to disallow tolling under any circumstances not
enumerated in the statute.” Laird v. Blacker (1992) 2 Cal.4th 606, 618.
Plaintiff alleges “(1) Defendants failed to act with
reasonable diligence in pursuing Plaintiff’s claim of copyright infringement
against Brott; (2) Defendants failed to keep Plaintiff informed of their
minimal efforts; (3) Burroughs proposed a settlement payment to Brott’s counsel
without Plaintiff’s authorization or consent; (4) Defendants refused litigation
services to Plaintiff, despite their contractual obligation to provide such
services based upon the terms of the Agreement; and (5) Defendants essentially
abandoned Plaintiff in violation of Rule of Prof. Conduct 1.16(d).” Compl. ¶
20.
A. Discovery
Defendants argue that Plaintiff discovered his malpractice
claims against them no later than April or May of 2022. Mot. at p. 6:2-3.
“The one-year period 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.’” Worton v. Worton (1991) 234
Cal.App.3d 1638, 1650 (Worton) (quoting Gutierrez v. Mofid (1985)
39 Cal.3d 892, 898).
Here, Plaintiff alleges that Defendant, while representing
Plaintiff in the Brott Matter, failed to file a complaint within the
limitations period. Plaintiff hired Defendants in June of 2021. Westwood Decl.
¶ 4. Plaintiff’s claim in the Brott Matter was time-barred as of March 16,
2022. Complaint, ¶12; Westwood Decl. ¶ 7. On April 20, 2022, Defendant emailed
the Plaintiff stating that he valued the case at $7,000 and would not be able
to take the case on a contingency basis, as per their agreement. Westwood Decl.
¶¶ 9-11. On April 29, 2022, Plaintiff hired new counsel to represent him in the
Brott Matter. Westwood Decl. ¶ 11.
Here, the undisputed facts show that Plaintiff knew that he
had discovered his copyright claims in the Brott Matter in 2019. As of April
20, 2022, Plaintiff knew that Defendants had not filed a Complaint in the Brott
Matter, Defendant proposed a settlement payment to Brott’s counsel, and
Defendants would not continue to represent Plaintiff in the Brott Matter.
Based on these facts, Plaintiff had discovered all facts
relating to Defendants’ alleged wrongful acts or omissions, no later than April
20, 2022. That Plaintiff did not learn that Defendants had allowed the statute
of limitations on his claim against Brott to expire until May 2022, that speaks
to his knowledge of legal theories giving rise to a claim against Defendants,
not to the existence of facts supporting such a claim. Westwood Decl. ¶ 12.
B. Actual Injury
“[A] plaintiff who actually or constructively discovered the
attorney’s error, but who has suffered no damage to support a legal malpractice
cause of action, need not file suit prematurely. Rather, that plaintiff still
has one year after sustaining actionable injury to assess whether, and how, to
pursue a remedy against the attorney.” Jordache Enterprises, Inc. v.
Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 757 (Jordache).
“There is no bright-line rule to apply in determining when
actual injury has occurred within the meaning of Code of Civil Procedure
section 340.6.” Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th
26, 40. “(1) determining actual injury is predominantly a factual inquiry; (2)
actual injury may occur without any prior adjudication, judgment, or
settlement; (3) nominal damages, speculative harm, and the mere threat of
future harm are not actual injury; and (4) the relevant consideration is the
fact of damage, not the amount.” Jordache, supra, 18
Cal.4th at p. 743 (Jordache). “Ordinarily, the client already has
suffered damage when it discovers the attorney’s error.” Ibid. “Actual
injury must be noticeable, but the language of the tolling provision does not
require that it be noticed.” Foxborough v. Van Atta (1994) 26
Cal.App.4th 217, 227.
“On the other hand,
‘the statute of limitations will not run during the time the plaintiff cannot
bring a cause of action for damages from professional negligence’ because the
plaintiff cannot allege actual injury resulted from an attorney’s
malpractice.’” Croucier v. Chavos (2012) 207 Cal.App.4th 1138, 1148
(quoting Jordache, supra,18 Cal.4th at p. 743
“In the ‘classic’ missed statute situation, in which the
attorney negligently fails to file the underlying lawsuit within the applicable
statutory period and does nothing further, the plaintiff suffers actual harm at
the time the statutory period lapses because, assuming the claim was otherwise
viable, the right and/or remedy of recovery on the action has been
substantially impaired. Adams v. Paul (1995) 11 Cal.4th 583, 589 (Adams).
This case resembles the so-called “classic” missed statute
situation, referred to in Adams. Plaintiff alleges that Defendant
negligently failed to file the lawsuit in the Brott Matter prior to the
applicable statutory period, and did nothing further. Therefore, Plaintiff
suffered an actual injury when the copyright claims became time-barred on March
17, 2022. This was noticeable because Plaintiff had the requisite factual
information to calculate the limitations period. That Plaintiff was not aware
of the relevant statute of limitations does not change the accrual of actual
injury, because it is not required that Plaintiff notice he had suffered an
actual injury.
Plaintiff suffered actual injury on March 17, 2022, and discovered
the facts constituting Defendant’s wrongful acts on April 20, 2022. Therefore,
Plaintiff’s claims against Defendants accrued on April 20, 2022. Plaintiff
filed the instant action on November 27, 2023. Accordingly, Plaintiffs’ claims
are time-barred.
II. Merits
Even if Plaintiff only discovered Defendants’ wrongdoing
regarding the statute of limitations in the Brott Matter on March 23, 2022, the
undisputed evidence shows that Plaintiff told Defendants the wrong date of
discovery. See Litinsky v. Kaplan (2019) 40 Cal.App.5th 970, 986 “an
attorney may rely upon information supporting a client's claim unless the
information is indisputably false.”
In his declaration, Defendant states, “Westwood contacted
Defendant, Doniger / Burroughs (“Doniger”), in 2021, advising the firm that he
had recently discovered a blog post from 2013 that used his artwork. When
William Westwood contacted Doniger, and thereafter, he falsely and expressly
represented to Doniger that he discovered his infringement claims in 2021.”
Burroughs Decl. ¶ 1. Defendant attaches an email, sent by Plaintiff, to his
declaration. Burroughs Decl. ¶ 1 Ex. 1. The email, dated June 1, 2021, begins “For
your review and consideration, I’m sending you files (screen captures,
registrations, etc.) on three current (discovered in January 2021)
California statutory infringement cases via Hightail.” Ibid (emphasis
added). In a prior email dated May 28, 2021, Plaintiff stated, “The artwork in
each case was fully registered before the infringements occurred (all of which
I discovered earlier this year).” Westwood Decl. ¶ 1. Ex. A at p. 30.
Plaintiff does not dispute that he told Defendant that he
discovered the infringement in 2021, but testifies, “I provided Mr. Burroughs
with information and documents relating to my claims, including screenshots and
other materials which indicated the dates I became aware of the infringements.
For the Brott matter, the documents I provided showed that I had discovered the
infringement in or around March 2019.” Westwood Decl. Ex. A. However, while the
Plaintiff attaches a copy of his email correspondence with the Defendant as an
exhibit to his complaint, he fails to include any of the documents that he
states show he discovered the infringement in 2019.
Therefore, the available evidence indicates that Plaintiff
informed Defendant that he had discovered the Brott claims in 2021.
Accordingly, the Court alternatively grants Defendants’ motion for summary
judgment on the grounds that Defendant was entitled to rely on Plaintiff’s statement
of when he discovered the infringing material.
CROSS-COMPLAINT
Cross-Complainant
moves for summary judgment as to its Cross-Complaint for breach of contract,
breach of the implied covenant of good faith and fair dealing, and fraud.
The parties’ fee agreement states, “Client will at all times
be truthful and honest with Attorney, and will provide all information and
evidence relevant or in any way related to the case, as requested by Attorney.”
Burrough’s Declaration ex. 2.
Here, as discussed above, the undisputed evidence shows that
Plaintiff incorrectly stated that he had discovered Brott’s alleged
infringement in 2021. However, Defendant fails to provide evidence that this
was intentional dishonesty, rather than a mistake. Because the Court must
consider the evidence as well as
all reasonable inferences that may be drawn from that evidence, in the light
most favorable to the party opposing summary judgment, it concludes that
Defendant has not met its burden of showing breach of the duty of candor or
intentional misrepresentation.
Accordingly, Cross-Complainant’s motion for summary judgment
is denied.
CONCLUSION
Defendants' Motion for Summary Judgment is granted as to
the Complaint and denied as to the Cross-Complaint.