Judge: Maurice A. Leiter, Case: 20STCV38176, Date: 2023-05-01 Tentative Ruling

Case Number: 20STCV38176    Hearing Date: May 1, 2023    Dept: 54

Hearing Date: May 1, 2023

Department 54, Judge Maurice A. Leiter

Motion for Judgment on the Pleadings

Moving Party: Defendant Ruben Fuentes

Responding Party: Plaintiff Ricardo Arrendondo

T/R:    DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS IS DENIED.

            DEFENDANT to notice. 

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

            The Court considers the moving papers, opposition, and reply.

BACKGROUND

            On May 19, 2022, Plaintiff Ricardo Arrendondo filed the operative second amended complaint against Defendant Ruben Fuentes, asserting one cause of action for legal malpractice. Plaintiff alleges Defendant mishandled Plaintiff’s bankruptcy proceedings, resulting in the wrongful foreclosure of Plaintiff’s home.

ANALYSIS

A defendant may move for judgment on the pleadings when the “complaint does not state facts sufficient to constitute a cause of action against that defendant.”  (CCP § §§ 438(b)(1) and (c)(1)(B)(ii).)  The grounds for motion provided for in this section shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.  (CCP § 438(d).)  Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings.  (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.)   

A. Statute of Limitations

A demurrer lies where the dates alleged in the complaint show “clearly and affirmatively” that the action is barred by a statute of limitations.  It is not enough that the complaint shows that the action may be barred.  (Geneva Towers Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4th 769, 781.)  

Defendant asserts the SAC is barred by the one year statute of limitations in Code of Civil Procedure § 340.6(a), which provides, “[a]n action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services 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.”

Defendant argues that Plaintiff’s claims accrued no later than July 17, 2019, when Plaintiff filed the first malpractice suit against Defendant. This action was filed on October 5, 2020.

Plaintiff asserts the statute of limitations was tolled until June 12, 2020, while Defendant continued working with Plaintiff’s counsel on the lawsuit against the purchasers of Plaintiff’s home. (SAC ¶ 31.) CCP § 340.6(a)(2) tolls the statute while “[t]he attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.”

In reply, Defendant asserts that the lawsuit against the purchasers was not the “specific subject matter in which the alleged wrongful act or omission occurred.” Whether that lawsuit is over the same subject matter is a question of fact, not suitable for determination on demurrer. The SAC is not clearly and affirmatively barred by the statute of limitations.

B. Unnecessary and Vexatious

Defendant asserts that the SAC is unnecessary and vexatious because there is another action pending that involves the same parties and same causes of action. The procedural posture of this action and the first action is unusual. In the first action, Plaintiff’s operative pleading is cross-complaint against Defendant and Defendant’s operative pleading is a cross-complaint against Plaintiff. Defendant has appealed Plaintiff’s right to file a cross-complaint in the first action. Defendant has failed to provide authority showing dismissal of this action is required in the unique circumstances of these cases.

Defendant’s motion is DENIED.