Judge Kenneth J. Medel, Case 37-2023-00024173-CU-CO-CTL 2024-03-22 Tentative Ruling

Judge: Kenneth J. Medel, Case: 37-2023-00024173-CU-CO-CTL, Date: 2024-03-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 21, 2024

03/22/2024 09:30:00 AM C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited Contract - Other Demurrer / Motion to Strike 37-2023-00024173-CU-CO-CTL BURNETT VS SHARIF FAUST LAWYERS LTD [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 09/13/2023

Defendant, SHARIF FAUST LAWYERS LTD's UNOPPOSED Demurrer is SUSTAINED. This is an attorney malpractice case. The Complaint alleges that on September 8, 2020, Defendant undertook to provide legal services for plaintiff in connection with Family Court matters. Paragraph 6 alleges negligence and breach of fiduciary duty related to the representation.

The basis of the demurrer is statute of limitations.

An action against an attorney for a wrongful act or omission, other than for actual fraud, that arises in the performance of professional services must 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. (Code Civ. Proc. § 340.6.) There are 'two distinct and alternative limitation periods: one year after actual or constructive discovery, or four years after occurrence (the date of the wrongful act or omission), whichever occurs first.' (Nguyen v. Ford (2020) 49 Cal.App.5th 1, 12, [granting demurrer on statute of limitations under the one-year rule because Plaintiff was on at least inquiry notice of Defendant's alleged negligence more than a year before the suit was commenced]; Flake v. Neumiller & Beardslee (2017) 9 Cal. App. 5th 223, 229.) Based on the facts of which the Court takes judicial notice as requested, Plaintiff initially retained Sharif to represent her in connection with the dissolution Petition and related custody dispute in 2018. (See RJN Ex. 2.) However, on May 3, 2019, Sharif withdrew as counsel for Plaintiff and Plaintiff began representing herself in pro per. (Id.) On September 8, 2020, Plaintiff once again retained Sharif to represent her in connection with the dispute. (See RJN Ex. 4.) Around one year later, on September 21, 2021, Sharif withdrew as counsel for Plaintiff. (See RJN Ex. 9.) Plaintiff consented to Sharif's withdrawal as counsel, as evidenced by the substitution of attorney filed on September 21, 2021. (Id.) An attorney's representation of a client ends when the client discharges the attorney or consents to a withdrawal; therefore, Sharif's representation ended on September 21, 2021.

Plaintiff's allegations in Paragraph 6 regarding the alleged negligence would put plaintiff knowledge of the facts constituting the alleged wrongful act or omission when they occurred. For example, one allegation relates to the custody decision on September 11, 2020. Plaintiff was present at the September 11, 2020, hearing where Mr. Burnett was awarded sole legal and physical custody of the child. (See RJN Ex.5.) Plaintiff would have had knowledge of the change in custody almost immediately. Once Plaintiff learned about the change in custody, she had notice of the need to investigate and the statute of limitations on any associated claims began to run.

Plaintiff also alleges facts related to a continuance granted. Plaintiff candidly admits that she was aware of the continuance (i.e. the alleged harm) in September 2021. Plaintiff also alleges she asked Sharif to file for a risk assessment several times in January 13, 2021, but it was not until August of 2021 that Sharif sent an email to minor counsel to request the risk assessment. Plaintiff suspected an omission on the part of Sharif as early as January 13, 2021, but chose not to pursue her claims until the filing of this Calendar No.: Event ID: TENTATIVE RULINGS

3019961 34 CASE NUMBER: CASE TITLE: BURNETT VS SHARIF FAUST LAWYERS LTD [IMAGED] 37-2023-00024173-CU-CO-CTL Complaint on June 8, 2023, well after the Statute of Limitations had run.

Further, this Demurrer is UNOPPOSED. Pursuant to CRC 8.54(c), failure to oppose a motion may be deemed consent to the granting of the motion.

The Court will hear as to whether leave to amend should be granted.

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3019961 34