Judge Jill Feeney, Case Number: 23STCV18431, Date: 2024-04-08 Tentative Ruling

This is an action for professional negligence arising from legal representation which began around June 2020. Plaintiff alleges that it retained Defendants Law Offices of Saul Reiss, Saul Reiss, and Firouzeh Pugh to represent them in matters involving corporate law, contract law, and arbitration. Plaintiff alleges that Defendants did not have the skill and expertise to represent Plaintiff and performed incompetently.

A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., section 430.41(a).) “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., section 430.41(a)(2).) A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., sections 430.41 (a)(4).)

The parties dispute whether the Court may take judicial notice of the truth of the matters asserted in these records. Pugh alleges that Plaintiff experienced actual injury as of February 28, 2022, when it filed the Complaint in the Banooni action, meaning the time to bring a cause of action for professional negligence began accruing on that date.

Evidence Code, section 452 states that a court may take judicial notice of (b) regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States, (c) official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States, and (h) facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort of sources of reasonably indisputable accuracy, among others.

Although a court may take judicial notice of court records and files, judicial notice is limited to matters that are indisputably true. (Evid. Code, section 452(d); Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.) The truth of the matters asserted in these records is not subject to judicial notice. (Arce at p.483.) A court may take judicial notice of a document’s legal effect. (Julian Volunteer Fire Co. Assn. v. Julian-Cuyamaca Fire Protection Dist. (2021) 62 Cal.App.5th 583, 600.)

Here, although the Court may not take judicial notice of the truth of the matters asserted in the court records in the Banooni action, the Court may take judicial notice of matters that are not reasonably subject to dispute, such as the party names, the date the action was filed and dismissed, and the causes of action and allegations set forth in the complaint. Additionally, the Court may take judicial notice of the legal effect of these records. Because the Court may take judicial notice of the records’ existence and the records’ legal effect, Pugh’s requests for judicial notice are granted.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.)

Pursuant to Code Civ. Proc., section 340.6, subdivision (a), the statute of limitations for a legal malpractice claim, other than a claim for actual fraud, is one year from when 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. (CCP § 340.6, subd. (a).) The time for commencing an action is tolled during the time when: (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; (3) the attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney, except that this subdivision shall toll only the four-year limitation; or (4) the plaintiff is under a legal or physical disability which restricts the plaintiff’s ability to commence legal action. (Id.; see Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 313.)

For purposes of the tolling rule, the test for actual injury is whether the plaintiff has sustained¿any¿damages compensable in an action. (Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 275.) Under this standard, the fact of damage, rather than the amount, is the critical factor. (Id.) Thus, a plaintiff sustains “actual injury”¿when he or she incurs attorney fees to rectify the problem caused by the prior attorney's alleged negligence. (Id.¿at 275-76.) Further, actual injury may occur even if the loss is contingent on an appeal or other final adjudication. (Village Nurseries v. Greenbaum¿(2002) 101 Cal.App.4th 26, 42.) The inquiry concerns whether events have developed to a point where plaintiff is entitled to a legal remedy, not merely a symbolic judgment such as an award of nominal damages. (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 752.) Once the plaintiff suffers actual harm, however, neither difficulty in proving damages nor uncertainty as to their amount tolls the limitations period. (Id.)

Here, Pugh argues that Plaintiff suffered an actual injury when it filed the complaint in the Banooni action. The complaint in the Banooni action shows that United Clinical Research, Inc. (UCR) and other parties brought an action for attorney malpractice against Reiss and Pugh on February 28, 2022. (Pugh’s RJN, Exh. 1.) The contents of this complaint are substantially similar to the Complaint in this action. Both complaints state UCR retained Reiss and Pugh in June 2020 to represent them in matters involving corporate law, contract law, and arbitration. Because the same plaintiff, UCR, in both this action and the Banooni action pursued identical causes of action for attorney malpractice against the same parties, Reiss and Pugh, it is clear that the two actions concern the same acts of professional negligence. Because Plaintiff was represented in the Banooni action, Plaintiff incurred attorney fees to rectify the alleged negligence when it filed the Complaint in the Banooni action. Therefore, the statute of limitations began accruing on February 28, 2022, more than one year before Plaintiff filed this action. Because this action was filed more than one year after Plaintiff suffered an actual injury arising from the alleged professional negligence, Plaintiff’s claim is time barred.

Although Plaintiff disputes whether the records in the Banooni action are properly the subject of judicial notice, the fact that both actions concern the same parties and facts is not reasonably subject to dispute and may be immediately verified. Moreover, these allegations are not being considered for their truth, but rather to show that the two matters involve the same dispute.

Pugh also argues for the first time on reply that Plaintiff admitted to knowing the facts giving rise to this action on February 28, 2022. However, because this issue was raised for the first time on reply and Plaintiff has not had the opportunity to respond, the Court will not consider this argument.

Nevertheless, the Complaint and matters which may be judicially noticed show that Plaintiff’s claim against Pugh and Reiss is time barred. The demurrer is sustained. The Court does not see how the Complaint may be amended to cure this defect. Therefore, leave to amend is denied.