Judge: H. Jay Ford, III, Case: 24SMCV02876, Date: 2025-02-11 Tentative Ruling

Case Number: 24SMCV02876    Hearing Date: February 11, 2025    Dept: O

Case Name:               Angel Perez v. Lalezary Law Firm, et al.

SUBJECT:                Demurrer without Motion to Strike

MOVING PARTY:   Defendants Shervin Lalezary, Shawn Lalezary, Lalezary Law Firm, LLP, and Law Brothers

RESP. PARTY:         Plaintiff Angel Perez

TENTATIVE RULING

            Defendants’ demurrer to Plaintiff’s complaint is SUSTAINED WITHOUT LEAVE TO AMEND.  Plaintiff’s claims for legal malpractice, breached of the implied are barred by the one-year statute of limitations under Code of Civil Procedure §340.6 that expired prior to September 8, 2023.

Defendant’s request for judicial notice is granted under California Evidence Code §§ 452, and 453. as to the existence and date of the court records, and their legal effect, but not the truth of the facts stated therein.

REASONING

            Defendants demurer to Plaintiff’s complaint on the grounds all of plaintiff’s claims are barred by the one-year statute of limitations pursuant for actions to C.C.P. § 340.6(a). (“An action against an attorney for a wrongful act or omission, other than 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 whichever occurs first....”) California courts have consistently found that CCP § 340.6 is the controlling statute in an action by a former client against an attorney for any and all disputes, except actual fraud, arising in the performance of professional services. The one-year statute of limitations applies regardless of what label the plaintiff places on the cause of action. (Southland Mechanical Constructors Corporation v. Nixen (1981) 119 Cal.App.3d 417, 424-425 (overruled, in part, on other grounds).)

The Court finds that Plaintiff’s complaint is barred by the one-year statute of limitations because the allegations of the complaint establish the date of actual injury as January 2020, but the complaint was not filed until June 14, 2024.

The complaint alleges:

            “13. That on or about January 07, 2020, Defendants  . . . accepted the settlement on behalf of Plaintiff; that said Defendants, and each of them, negligently and carelessly failed to properly and thoroughly counsel, supervise, direct, instruct, guide, recommend to, advise, inform and/or notify Plaintiff as to her rights and remedies and what rights and remedies she was waiving if entering into the Settlement Agreement; and that the terms of the Settlement Agreement waived, terminated, vitiated and/or destroyed any right or claim Plaintiff had for bringing or filing a negligence claim against the Defendant GARCIA for Plaintiffs’ injury.

            “14.  That after discovering that Defendants ... accepted the settlement on behalf of Plaintiff without his consent, Plaintiff sought other counsel to obtain estoppel on the settlement; that Plaintiff retained the Carrillo Law Firm and Abron Law to attempt to obtain the estoppel and to try the case on the merits. On November 22, 2022, Plaintiff’s counsel appeared for a bench trial on behalf of Plaintiff on the issue of whether the Lalezary Firm had authority to settle Plaintiff’s case. Defense sought to enforce the alleged settlement. Both parties presented their evidence at a bench trial in El Centro Courthouse. The Court took the case under submission and on April 5, 2023, in its Statement of Decision the Court expressly stated that: “…the Court does note that the internal firm communications regarding the case do not reference in any way obtaining consent from the client …plaintiff’s testimony (indicates) that he gave no consent for the settlement.” The court found in favor of Plaintiff that the Lalezary Firm did not have authority to settle Plaintiff’s case.”

            As pled, the complaint establishes that Plaintiff was aware of the alleged misconduct as early as January 2020 when Plaintiff learned Defendants accepted a settlement offer without Plaintiff’s consent and engaged new counsel to oppose the enforcement of that settlement. (Complaint ¶14; RJN no. 1 (Plaintiff’s Substitution of Attorney signed on January 27, 2020 and filed March 5, 2020.)  Plaintiffs argue the one-year statute does not begin to run until the resolution of the underlying case in July 2023.  The allegations of the complaint belie that conclusion.  

            In Sharon v. Porter (2019) 41 Cal.App.5th 1.) the attorney defendant failed to specify money damages in the complaint which rendered a 2008 default judgment void. (Id. at 5.) Attorney defendant argued injury had occurred when the judgment was entered in 2008 while plaintiff argued that she first sustained injury in September 2016, when judgment was vacated, and she began to incur attorney fees related to the motion to vacate. (Id.) The Court of Appeal reversed the trial court’s decision that plaintiff’s lawsuit was not time-barred because her actual injury occurred once the judgment was vacated. (Id. at 11.)  The Court of Appeal reasoned that “[s]ince the undisputed facts show the first actual injury was sustained no later than November 2015, at the same time when [plaintiff] discovered the facts supporting her malpractice claim, it follows that her May 2017 lawsuit was filed more than one year after section 340.6's statute of limitations had commenced. In other words, [plaintiff’s] lawsuit in this case was time-barred independent of when she began to incur [new counsel’s] hourly fees to address the consequences of attorney defendant’s admitted malpractice. (Id.) The Court of Appeal further reasoned that “[u]nder [plaintiff’s] view, [defendant’s] motion to vacate the judgment could have been filed 20 years in the future and a legal malpractice claim filed within 21 years would still have been timely as long as no specific attorney fee had been charged to [plaintiff]. No authority supports that outcome.” (Id. at 12.)

            The same reasoning applies here. Plaintiff argues his actual injury took place in 2023 when he had to incur attorney’s fees for his new counsel and not in 2020 when he first discovered the attorney misconduct. But Plaintiff was not only aware of the misconduct in 2020, but suffered the actual injury of Defendants binding him to a Settlement that he did not give consent to. Plaintiff’s argument that actual injury occurred in 2023 is not supported by the allegations of the complaint.