Judge: Jon R. Takasugi, Case: 21STCV45244, Date: 2022-08-19 Tentative Ruling

Case Number: 21STCV45244    Hearing Date: August 19, 2022    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendant’s demurrer is SUSTAINED, WITH 10 DAYS LEAVE TO AMEND.

On 12/13/2021, Plaintiff Janice Carter (Plaintiff) filed suit against Lisa MacCarley (Defendant). On 5/27/2022, Plaintiff filed a first amended complaint (FAC) alleging professional negligence.

Now, Defendant demurs to Plaintiff’s Complaint.

Factual Background

            This action arises out of Defendant’s legal representation of Plaintiff during Plaintiff’s father’s probate (Probate Case).

Discussion

            Defendant argues that Plaintiff’s FAC still fails to allege facts which could show that her claim for professional negligence is not time-barred.

            CCP section 340.6 provides:

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.

In its 5/20/2022 Ruling, the Court sustained Defendants’ demurrer, with 10 days leave to amend. This was based on the fact that, by Plaintiff’s own admission, she alleged she discovered the alleged wrongful conduct during the end of October 2020 when she made an appointment with Defendant, and learned that the case had been settled without her permission. Given that this case was filed on 12/13/2021, over a year after the discovery, Plaintiff’s Complaint appeared time-barred on its face.

In Plaintiff’s FAC, she still alleges that the underlying Probate case settled on 12/12/2019, and that she was extremely disturbed when she discovered this because Defendant had not given her notice. Plaintiff alleges that she was finally able to secure an appointment with Defendant to discuss this in October 2020, and that she learned in this appointment that the Probate Case had, in fact, been settled. Plaintiff alleges that Defendant then offered to file a partition action, but Plaintiff rejected the offer.

However, Plaintiff’s FAC now alleges that she did not discover Defendant’s wrongdoing until she received the transcript records of the Probate settlement hearing, mailed on 4/15/2021. Plaintiff alleges that it was then that she learned that it was Defendant who had settled the case, as opposed to the Probate Judge. In other words, after the October 2020 meeting, Plaintiff was “under the impression from [Defendant] that it was the Judge who had settled the Probate Court case.” When she read the transcripts, however, she allegedly learned that Defendant had been the one to alert the judge to settlement.    

While a close call, the Court finds that Plaintiff’s new allegations could show that she did not discover the true nature of Defendant’s alleged misconduct until she received the transcript records sometime after 4/15/2021. More specifically, accepted as true at the pleading stage, Plaintiff’s allegations could show that Plaintiff did not understand until after April 2021 that the settlement was the result of Defendant’s actions, rather than the Probate Judge’s. As such, Plaintiff’s FAC does not appear time-barred on its face. While it may be that Defendant explained the circumstances of the settlement in October 2020, or Plaintiff should have actually discovered the wrongful conduct then, such that the statute of limitations began to run, this is a factual determination not properly made at this stage.

            However, the Court still finds Plaintiff’s claim to be insufficient to state a claim. This is because Plaintiff’s FAC does not include any allegations of damage that resulted from the alleged negligence.

            Based on the foregoing, Defendant’s demurrer is sustained, with 10 days leave to amend.

It is so ordered.

Dated:  August    , 2022

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

            Due to Covid-19, the court is strongly discouraging in-person appearances.  Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk.  The court encourages the parties wishing to argue to appear via L.A. Court Connect.  For more information, please contact the court clerk at (213) 633-0517.  Your understanding during these difficult times is appreciated.