Judge: Jon R. Takasugi, Case: 23STCV21506, Date: 2024-01-31 Tentative Ruling

Case Number: 23STCV21506    Hearing Date: January 31, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendant’s demurrer is SUSTAINED, WITHOUT LEAVE TO AMEND.  

            On 9/7/2023, Plaintiff Mid-Valley Industrial Center (Plaintiff) filed suit against Joelle M. Drucker, Drucker Law Offices, Elizabeth T. Pierson, and Gillpierson, LLP, alleging: (1) legal malpractice; (2) breach of fiduciary duty; and (3) breach of contract.

            Now, Defendants Elizabeth T. Pierson and Elizabeth T. Pierson dba Gillpierson, LLP (collectively, Pierson Defendants) demur to Plaintiff’s Complaint.

            The motion is unopposed.

Factual Background

Plaintiff alleges that it engaged Co-Defendant Joelle M. Drucker (Ms. Drucker) on or about June 17, 2022 for representation in connection with the underlying probate proceeding styled In re Estate of Brett Andrew Bereny, Los Angeles Superior Court Case No. 22STPB04561 (the Underlying Proceeding) (Complaint, ¶ 8.) Plaintiff alleges that Ms. Drucker agreed to file a claim based upon rents owed by the decedent in the Underlying Proceeding in the amount of $356,440. (Complaint, ¶ 9.)

Plaintiff alleges that her file was transferred to the Pierson Defendants after Ms. Drucker experienced a medical emergency.

Plaintiff alleges that when she later inquired with the Pierson Defendants about the status of her claim, it learned that no claim had been filed. Thus, Plaintiff contends that it lost the ability to pursue a claim based on unpaid rents. (Complaint, ¶ 12.)

Discussion

            Pierson Defendants argue that Plaintiffs claim against them is time-barred as a matter of law.

            In support, Pierson Defendants note that the decedent in the Underlying Proceeding died on September 5, 2021. (Request for Judicial Notice (RJN, Exh. 2.) While this date is not alleged as part of Plaintiff’s Complaint, the date of death is listed in the official Petition for Probate. (Ibid.) The Court may properly take judicial notice of the records of “any court of record of the United States,” as well as “[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.” (Evid. Code § 452, subds. (c), (d); see also Greenspan v. LADT LLC (2010) 191 Cal.App.4th 486, 525 (holding that trial court properly took judicial notice of arbitration award under Evidence Code section 452, subdivision (d).)

            CCP section 366.2 provides:

(a)   If a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply.

(emphasis added.)

“Upon a person's death, Code of Civil Procedure section 366.2 ‘provides for an outside time limit of one year for filing any type of claim against a decedent.’” (Estate of Holdaway (2019) 40 Cal.App.5th 1049, 1053, emphasis added.) A creditor’s claim tolls section 366.2’s limitations period only if it is filed before the one-year limitations period elapses. (See Dobler v. Arluk Medical Ctr. Indus. Group (2001) 89 Cal.App.4th 530, 535-536 [“[I]f a claim is not filed in a probate proceeding . . . within the one-year limitation period of Code of Civil Procedure section 366.2, a creditor will be forever barred from asserting a claim against the decedent”].)

Indeed, Probate Code section 9100—which establishes the deadlines for filing a creditor’s claim in a probate administration—expressly provides that “[n]othing in this section shall be interpreted to extend or toll any other statute of limitations or to revive a claim that is barred by any statute of limitations. The reference in this subdivision to a ‘statute of limitations’ includes Section 366.2 of the Code of Civil Procedure.” (Prob. Code § 9100, subd. (c), emphasis added.) Thus, the statute of limitations for a creditor’s claim in a probate administration is the earlier of (a) one year after date of death or (b) four months after letters testamentary had been issued. In the Underlying Proceeding, the earlier of those two dates was September 5, 2022

Here, decedent died on 9/5/2021. Accordingly, Plaintiff had one year to commence a claim. Ms. Drucker first transferred Plaintiff’s file to the Pierson Defendants on 11/18/2022. Accordingly, at the time of transfer, Plaintiff’s claim had already expired.

A claim asserting that an attorney failed to timely file an underlying lawsuit requires that the plaintiff “must first plead and prove that at the critical times in question there existed the relationship of attorney and client with its accompanying responsibilities.” (Shelly v. Hansen (1966) 244 Cal.App.2d 210, 214; accord Stuart v. Superior Court (1992) 14 Cal.App.4th 124, 128 (affirming summary judgment where the attorney defendant was not counsel of record at “critical in time in question” when damage occurred).) Here, as set forth above, the “critical time” regarding the underlying claim for unpaid rents was between September 5, 2021 and September 5, 2022—i.e., the one-year limitations period under Code of Civil Procedure 366.2. Any creditor’s claim to be filed in that time period needed to be filed before the one-year period elapsed. But the Complaint establishes that the Pierson Defendants were not involved at all until November 2022. (Complaint, ¶ 10.)

Moreover, it is axiomatic that an attorney is only liable where a claimant can establish “a proximate causal connection between the negligent conduct and the resulting injury . . . .” (Thompson v. Halvonik (1995) 36 Cal.App.4th 657, 661; Kasem v. Dion-Kindem (2014) 230 Cal.App.4th 1395, 1399.) Thus, Plaintiff must establish that but for the Pierson Defendants’ alleged misconduct, it would not have suffered damages. (Viner v. Sweet (2003) 30 Cal.4th 1232.)

Here, Plaintiff has not alleged facts which could show that Defendants caused Plaintiff’s damage when the claim had expired before Defendants ever become involved with Plaintiff’s claim.

Plaintiff did not file an opposition. The Court takes this to be a concession to the merits of Defendants’ motion. Plaintiff has not set forth any argument that the deficiencies identified could be addressed through amendment. Accordingly, the Court is without any basis to award leave to amend. (McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 303- 304.)

Based on the foregoing, Defendants’ demurrer is sustained, without leave to amend.  

It is so ordered.

Dated:  January    , 2024

   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.  For more information, please contact the court clerk at (213) 633-0517.