Judge: Latrice A. G. Byrdsong, Case: 21STLC01780, Date: 2023-11-16 Tentative Ruling

Case Number: 21STLC01780    Hearing Date: November 16, 2023    Dept: 25

Hearing Date:                         Thursday, November 16, 2023

Case Name:                             ROBERT BARE d/b/a BARE LAW v. MICHELLEI CEPHUS

Case No.:                                21STLC01780

Motion:                                   DEMURRER TO CROSS-COMPLAINT

Moving Party:                         Plaintiff/X-Defendant Robert Bare d/b/a Bare Law

Responding Party:                   Defendant/X-Complainant Michellei Cephus

Notice:                                    OK

Tentative Ruling:  Plaintiff/X-Defendant Robert Bare d/b/a Bare Law’s Demurrer to the Cross-Complaint filed on May 16, 2023 is OVERRULED.  Bare answered the cross-complaint on October 26, 2023    

Bare’s Answer to the First Amended Cross-Complaint to be filed within 30-days of the date of this court’s order.           

BACKGROUND

            On February 4, 2021, Plaintiff Robert Bare d/b/a Bare Law filed this action against Defendant Michellei Cephus alleging a single cause of action for breach of contract.  Plaintiff represented Cephus in a prior action.  Plaintiff alleges Cephus has failed to pay for the legal services rendered and owes Plaintiff $3,475 in fees.

            On July 13, 2021, default was entered against Defendant Cephus. On August 4, 2022, default judgment was entered against Defendant in the amount of $4,697.21.    

            On May 11, 2023, Defendant filed an answer to the complaint.  On May 12, 2023, Defendant filed a Motion to Set Aside/Vacate Default. 

            On May 16, 2023, Defendant filed a cross-complaint against Plaintiff alleging (1) legal malpractice and (2) breach of contract. 

            On August 10, 2023, Plaintiff demurred to Defendant’s cross-complaint.

            On September 12, 2023, the Court granted Defendant’s motion to set aside and vacate the default and default judgment entered against her on July 13, 2021 and August 4, 2022.  The Court also deemed Defendant’s answer and cross-complaint filed as of May 11, 2023 and May 16, 2023.

              On September 21, 2023, the Court continued the hearing date on Plaintiff’s demurrer to the cross-complaint to November 16, 2023. 

            On October 26, 2023, Plaintiff filed an answer to the cross-complaint.

            On October 30, 2023, Defendant filed an opposition to Plaintiff’s demurrer to the cross-complaint.

            On November 3, 2023, Defendant submitted a First Amended Cross-Complaint. 

MOVING PARTY POSITION

            Plaintiff argues Defendant’s cross-complaint is barred by the one-year statute of limitations under CCP §340.6.  Plaintiff argues Defendant alleges she fired Plaintiff on October 22, 2020 for his failure to properly represent her at a hearing on that date in the prior action.  Plaintiff argues the statute of limitations therefore expired on October 22, 2021.  Plaintiff argues Defendant is also in default and may not serve a cross-complaint without first obtaining leave of court. 

OPPOSITION

             Defendant argues the statute of limitations is subject to the discovery rule.  Defendant claims she did not discover Plaintiff’s malpractice until the court in the family law action specifically referenced Plaintiff’s breach of his duty as counsel.  Defendant argues her claims are sufficiently stated.  

REPLY

            None as of November 14, 2023. 

ANALYSIS

            Plaintiff/X-Defendant filed an answer to the cross-complaint on October 26, 2023.  By doing so, Defendant/X-Complainant lost the right to amend once of course pursuant to CCP §472, which provides:  “A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties.”  (CCP §472.)  Although CCP §472 provides allows a plaintiff/x-complaint to amend once a matter of right after a demurrer or motion to strike is filed under certain circumstances, CCP §472 does not provide for any right to amend after an answer is filed.  As such, Defendant/X-Complainant’s FAXC submitted on November 3, 2023 does not moot the demurrer.

            Plaintiff/X-Defendant demurs to the x-complaint on grounds of statute of limitations under CCP §340.6.  “A general demurrer based on the statute of limitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations. The running of the statute must appear clearly and affirmatively from the dates alleged. It is not sufficient that the complaint might be barred. If the dates establishing the running of the statute of limitations do not clearly appear in the complaint, there is no ground for general demurrer. The proper remedy is to ascertain the factual basis of the contention through discovery and, if necessary, file a motion for summary judgment.” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324-325.)

            The cross-complaint is a compulsory cross-complaint against Plaintiff/X-Defendant. If defendant's cause of action against plaintiff is related to the subject matter of the complaint, it must be raised by cross-complaint; failure to plead it will bar defendant from asserting it in any later lawsuit. (CCP § 426.30; AL Holding Co. v. O'Brien & Hicks, Inc. (1999) 75 Cal.App.4th 1310, 1313-1314.)  The cross-complaint therefore relates back to the filing date of Plaintiff/X-Defendant’s complaint.  “It is well established that the filing of an underlying lawsuit tolls the statute of limitations for compulsory cross-complaints.”  (Paredes v. Credit Consulting Services, Inc. (2022) 82 Cal.App.5th 410, 428.) 

            As such, for purposes of statute of limitations, Defendant/X-Complainant’s cross-complaint relates back to the filing date of Plaintiff/X-Defendant’s complaint.  Plaintiff/X-Defendant’s complaint was filed on February 4, 2021. 

            Even assuming Plaintiff/X-Defendant’s position that Defendant/X-Defendant’s legal malpractice claim accrued on October 22, 2020 and the 1-year limitations under CCP §340.6 applies, the statute of limitations was tolled once Plaintiff/X-Defendant filed this action on February 4, 2021, approximately eight months before expiration of the statute of limitations argued by Plaintiff/X-Defendant.  Plaintiff/X-Defendant therefore fails to establish that Defendant/X-Complainant’s May 16, 2023 cross-complaint is clearly and affirmatively time-barred on its face. 

            Plaintiff/X-Defendant demurs to the cross-complaint on grounds that leave to file it was never obtained under CCP §428.50 and Defendant/X-Complainant was in default.  Plaintiff/X-Defendant’s arguments based on CCP §428.50 and Defendant/X-Complainant’s default is moot.  Defendant/X-Complainant is no longer in default.  The Court vacated the default and default judgment against Defendant/X-Complainant on September 12, 2023 and also deemed her cross-complaint filed as of May 16, 2023.  Defendant/X-Complainant is no longer in default and the cross-complaint was recognized as validly filed by the Court on September 12, 2023. 

            Plaintiff/X-Defendant’s Demurrer is OVERRULED.  The Court notes Plaintiff/X-Defendant filed an answer on October 26, 2023.