Judge: Maurice A. Leiter, Case: 21STCV27602, Date: 2022-10-06 Tentative Ruling

Case Number: 21STCV27602    Hearing Date: October 6, 2022    Dept: 54

Hearing Date: October 6, 2022

Department 54, Judge Maurice A. Leiter

Demurrer to First Amended Complaint and Motion to Strike

Moving Party: Defendant Steve Escovar

Responding Party: Plaintiff Jeff Baoling Zhang

T/R:     DEFENDANT’S DEMURRER IS SUSTAINED WITHOUT LEAVE TO AMEND.

DEFENDANT’S MOTION TO STRIKE IS MOOT.

            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 July 28, 2021, Plaintiff Jeff Baoling Zhang sued Defendant Steve Escovar, asserting claims for breach of contract, intentional tort, violation of work ethics, violation of Plaintiff’s human rights, and violation of the Bill of Rights. Plaintiff alleges he hired Defendant to represent him in a criminal proceeding. Plaintiff contends that Defendant worked for Plaintiff’s “opponent,” the “Chinese communist government,” and Defendant failed to adequately represent Plaintiff, resulting in an excessive prison sentence.

            On March 17, 2022, the Court sustained Defendant’s demurrer on the ground that the complaint was barred by the statute of limitations. On April 5, 2022, Plaintiff filed the operative first amended complaint.

REQUEST FOR JUDICIAL NOTICE

Defendant’s request for judicial notice is GRANTED as to the existence of the documents.

ANALYSIS

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

            Defendant demurs to all of Plaintiff’s causes of action on the grounds that they are barred by the statute of limitations and fail to state sufficient facts.

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.)  The statute of limitations begins to run when the cause of action “accrues.”  (CCP § 312.) A cause of action “accrues” when, under the substantive law, the wrongful act is done or the wrongful result occurs, and the consequent liability arises.  (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.)  That is, a cause of action accrues “upon the occurrence of the last element essential to the cause of action.”  (Howard Jarvis Taxpayers Ass’n v. City of La Habra (2001) 25 Cal.4th 809, 815.)

Plaintiff alleges that Defendant represented him from November 2014 to October 2015. Defendant asserts that Plaintiff’s complaint arises from Defendant’s legal representation of Plaintiff and is barred by the one-year statute of limitations of CCP § 340.6. This section provides, “An 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.” This statute of limitation may be tolled if “[t]he plaintiff has not sustained actual injury.” (CCP § 340.6(a)(1).) 

Plaintiff discovered Defendant’s wrongful acts in 2015. Plaintiff alleges that Defendant began working for Plaintiff’s opponents, threatened and coerced him into taking a plea deal for 10 years in prison, requested and performed an improper mental health evaluation, and told the judge not to give Plaintiff parole. The first amended complaint makes clear that Plaintiff was aware of Defendant’s alleged wrongful acts in 2015; Plaintiff had one year to file suit.

All of Plaintiff’s causes of action, except for intentional tort (fraud), are barred by the statute of limitations provided in CCP § 340.6. Plaintiff’s cause of action for fraud is similarly barred by the three-year statute of limitation of CCP § 338(d).

The Court is unpersuaded that the defects in the first amended complaint can be remedied by amendment. Defendant’s demurrer is SUSTAINED without leave to amend.