Judge Mark C. Kim, Case 22LBCV00207 2022-08-30 Tentative Ruling

Judge: Mark C. Kim, Case: 22LBCV00207, Date: 2022-08-30 Tentative Ruling

Case Number: 22LBCV00207 Hearing Date: August 30, 2022 Dept: S27

Background Facts

Plaintiff, Israel Pena filed this action against Defendant, Jonathan Fernando Rayas for legal malpractice and negligence per se. Plaintiff alleges Defendant represented him in connection with proceedings against the post office, but failed to advise him properly and fraudulently charged him improper fees.

Demurrer

a. Legal Standard on Demurrer

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be.

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. Blank v. Kirwan 39 Cal.3d 311 (1985). No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under CCP § 430.10 [grounds], § 430.30 [as to any matter on its face or from which judicial notice may be taken], and § 430.50(a) [can be taken to the entire complaint or any cause of action within]. Specifically, a demurrer may be brought per CCP § 430.10(e) if insufficient facts are stated to support the cause of action asserted. Per CCP §430.10(a) a demurrer may be brought where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. Furthermore, demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. CCP § 430.10(f).

However, in construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. Financial Corporation of America v. Wilburn, 189 Cal.App.3rd 764, 769 (1987). And, if the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control. Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief. Special demurrers are not allowed in limited jurisdiction courts. (CCP § 92(c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. Goodman v. Kennedy, 18 Cal.3d 335, 348 (1976). The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, CCP section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party 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.” (CCP § 430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP § 430.41(a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (CCP § 430.41(a)(3).)

b. Meet and Confer

Defendant provided his own declaration with the demurrer. His declaration details his efforts to meet and confer prior to filling the demurrer. The Court finds the meet and confer efforts sufficient, and will rule on the demurrer on its merits.

c. Analysis

Defendant demurs to the entire complaint on the ground that it is barred by the statute of limitations. Pursuant to CCP §340.6, an action for legal malpractice must be filed within one year after the plaintiff discovers or reasonably should have discovered the attorney’s wrongful act or omission, or four years from the date of the wrongful act or omission, whichever comes first.

Plaintiff’s complaint alleges a series of acts occurring in 2017 and 2018, and no acts occurring after 2018. Plaintiff does not allege any facts showing delayed discovery of Defendant’s allegedly wrongful acts or omissions. The complaint therefore shows, on its face, that it is barred by the statute of limitations, and the demurrer is sustained. Absent opposition, the Court denies leave to amend. The Court will grant leave to amend if and only if Plaintiff appears at the hearing and articulates how he would amend if given leave to do so. If there is no appearance at the hearing, or Plaintiff fails to do so, the Court’s ruling is to sustain the demurrer without leave to amend.

Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. 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. 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.