Judge Mark E. Windham, Case Number: 24STLC02143, Date: 2024-08-08 Tentative Ruling

Judge: Mark E. Windham, Case: 24STLC02143, Date: 2024-08-08 Tentative Ruling

Case Number: 24STLC02143 Hearing Date: August 8, 2024 Dept: 26

Mashian Law Group v. Husson, et al.

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Cross-Defendant Mashian Law Group’s Demurrer to the Cross-Complaint is OVERRULED. CROSS-DEFENDANT IS TO FILE AND SERVE AN ANSWER TO THE CROSS-COMPLAINT WITHIN 20 DAYS OF THIS RULING.

ANALYSIS:

On March 22, 2024, Plaintiff Mashian Law Group (“Cross-Defendant”) filed the Complaint in this action against Defendants Tony Husson and 21 Choices, LLC (“Cross-Complainants”). On May 10, 2024, Cross-Complainants answered the Complaint and filed the Cross-Complaint against Cross-Defendant for (1) professional negligence; and (2) breach of contract.

Cross-Defendant filed the instant Demurrer to the Cross-Complaint on July 11, 2024. Cross-Complainants filed an opposition on July 26, 2024 and Cross-Defendant replied on August 1, 2024.

Discussion

The Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Demurrer, Stanton Decl., ¶¶3-5 and Exh. 2.) Cross-Defendant demurs on the grounds that the Cross-Complaint fails to allege facts sufficient to state a cause of action and is uncertain. (Citing Code Civ. Proc., § 430.10, subds. (e), (f).) Special demurrers, however, are not permitted in the limited jurisdiction court. (Code Civ. Proc., § 92, subd. (c).) Therefore, the Court will not consider the demurrer for uncertainty.

The Complaint alleges causes of action for (1) breach of contract; (2) account stated; and (3) quantum meruit. These claims are based on the allegations that Cross-Complainants retained Cross-Defendant to perform legal services in connection with Los Angeles Superior Court case 21 Choices, LLC v. Guinart Construction, Inc. (“Case No. 20STCV27023”) but failed to pay all the legal fees and costs incurred. (Compl., ¶¶6-12.) Cross-Complainants allegedly still owe $19,116.54 in legal fees and costs for the legal services performed by Cross-Defendant. (Ibid.)

The Cross-Complaint asserts causes of action for (1) professional negligence; and (2) breach of contract. First, it alleges that Cross-Defendant owed Cross-Complainants a duty of care to: “(i) properly provide attorneys experienced in litigation and trial as promised at the inception if litigation was not avoided; and/or (ii) use due diligence to know of the pertinent lease provisions affecting Cross-Complainants in its issues with their commercial landlord, the reason for the representation, to avoid litigation.” (Cross-Compl., ¶7.) Cross-Defendant allegedly breached these duties “by failing to: (i) properly provide attorneys experienced in litigation and trial as promised at the inception; and/or (ii) use due diligence to know of the pertinent lease provisions in affecting Cross-Complainants in its issues with their commercial landlord.” (Id. at ¶9.) As a result, Cross-Complainants have sustained damages in an amount to be proven at trial. (Ibid.) Cross-Defendant also allegedly breached the retainer agreement attached the Complaint, thereby causing Cross-Complainants business losses and other harm such as payment of fees for work not performed in accordance with the standard of care. (Id. at ¶¶12-14.)

Request for Judicial Notice

Cross-Defendant requests that the Court take judicial notice of (1) the Complaint filed in the Los Angeles Superior Court action 21 Choices, a California limited liability company v. Guinart Construction, Inc., a California corporation (Case No. 20STCV27023), filed on July 17, 2020; (2) the Substitution of Attorney filed March 21, 2021 by Mashian Law Group on behalf of the Husson Defendants in Case No. 20STCV27023; and (3) the Request for Dismissal filed August 31, 2022 by Mashian Law Group on behalf of the Husson Defendants in Case No. 20STCV27023.

The request for judicial notice is brought pursuant to Evidence Code section 452, subdivision (d). With respect to court records, the Court cannot take judicial notice of the facts contained therein and may only take judicial notice of the existence of those records. (See Adams v. Bank of America, N.A. (2020) 51 Cal.App.5th 666, 673 [citing Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1569–1570].) The Court’s judicial notice of these documents is limited accordingly to the following: (1) Case No. 20STCV27023 was filed on July 17, 2020; (2) Mashian Law Group substituted in as counsel of record for Cross-Complainants in Case No. 20STCV27023 on March 21, 2021; and (3) Case No. 20STCV27023 was dismissed on August 31, 2022.

Cross-Defendant also filed a supplemental request for judicial notice of certain documents which are attached but not listed. (Supp. Request for Judicial Notice, filed 08/01/24.) As noted above, judicial notice of the content of documents simply because they were filed with the Court is improper. Therefore, Cross-Defendant’s supplemental request for judicial notice is denied.

Statute of Limitations

Cross-Defendant argues that the first cause of action for professional negligence is barred by the one-year statute of limitations set forth in Code of Civil Procedure section 340.6. The statute provides that an action for legal malpractice “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.” (Code Civ. Proc., § 340.6, subd. (a).) To sustain a demurrer based on a statute of limitations defense “[i]t must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred.” (Leasequip, Inc. v. Dapeer (2002) 103 Cal.App.4th 394, 400.)

Cross-Defendant argues that the statute of limitations must have run by February 1, 2024, one year after the termination of its representation of Cross-Complainants in Case No. 20STCV27023. However, no allegations from the Cross-Complainant or judicially noticeable facts are cited for the purported date Cross-Defendant’s representation terminated. Nor are any allegations or judicially noticeable facts cited regarding when Cross-Complainants discovered, or through the use of reasonable diligence, should have discovered the wrongful acts or omissions of Cross-Defendant. The reply concedes that the Cross-Complaint is silent as to all dates of representation. Nor does the opposition contend that the statute of limitations is tolled, as argued in the reply. It simply refers to subdivision (a)(2) of section 340.6 of the Code of Civil Procedure, without any analysis, for the proposition that continuing representation tolls the statute of limitations. Even if the opposition were to make a tolling argument, this does not impose an obligation on Cross-Complainants to allege facts in the Cross-Complaint showing that tolling applies because, as already discussed, nothing in the Cross-Complaint demonstrates that the cause of action for legal malpractice is time-barred.

Cross-Defendant also relies on the statute of limitations in Code of Civil Procedure section 340.6 to demur to the second cause of action for breach of contract. For the reasons discussed above, the Demurrer also does not demonstrate that breach of contract claim is overcome by the statute of limitations.

Conclusion

Cross-Defendant Mashian Law Group’s Demurrer to the Cross-Complaint is OVERRULED. CROSS-DEFENDANT IS TO FILE AND SERVE AN ANSWER TO THE CROSS-COMPLAINT WITHIN 20 DAYS OF THIS RULING.

Court clerk to give notice.