Judge Stephen P. Pfahler, Case Number: 24STCV05121, Date: 2025-02-18 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 24STCV05121, Date: 2025-02-18 Tentative Ruling

Case Number: 24STCV05121 Hearing Date: February 18, 2025 Dept: 68

Dept. 68

Date: 2-18-25 a/f 5-20-25

Case: 24STCV05121 related to 24STCV01168

Trial Date: Not Set

DEMURRER

MOVING PARTY: Defendant, Nick Alden

RESPONDING PARTY: Plaintiffs, David Westley, et al.

RELIEF REQUESTED

Demurrer to the Complaint

· 1st Cause of Action: General Negligence/Legal Malpractice

· 2nd Cause of Action: Breach of Fiduciary Duty

SUMMARY OF ACTION

On an unspecified date, Defendants Nick Alden and Aleksey Sirotin represented Plaintiffs David and Victoria Westley, and Han Realty, Inc., in an action identified as “Westley v. Palumbo, et al.,” LC104523. Plaintiffs allege Defendants breached numerous professional duties in the provision of legal services. On February 29, 2024, Plaintiffs filed their form complaint for General Negligence (legal malpractice), and Intentional Tort (Breach of Fiduciary Duty). On July 30, 2024, Plaintiffs dismissed Aleksey Sirotin.

RULING: Sustained with Leave to Amend.

Requests and Supplemental Request for Judicial Notice: Granted

Defendant Nick Alden submits a demurrer to the entire complaint on grounds the statute of limitations, and lack of accrued damages. Plaintiffs in opposition challenge the meet and confer effort, deny any bar under the statute of limitations, and maintain properly pled damages. The court electronic filing system shows no reply on file at the time of the tentative ruling publication cutoff.

The subject action is the second between the parties pending in this court. The first action, Alden v. Han Realty, Inc., et al., 24STCV01168, was deemed related and the lead case on October 11, 2024. The court subsequently vacated all hearings in the later filed case. Notwithstanding, on January 15, 2025, the court specifically advanced the demurrer filed in the instant action and previously scheduled in Department 3 for May 20, 2025, to the instant hearing date.

Meanwhile, Palumbo v. Westley, LC 104523, remains currently pending in Department A in Van Nuys. The Van Nuys action filed on August 12, 2016. Trial is currently set for May 19, 2025. The court system shows no other pending actions pending between the parties.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial

justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

The court declines to address the opposition regarding the meet and confer effort. Challenges to the meet and confer efforts are in NO way dispositive towards ruling on the demurrer. (Code Civ. Proc., § 430.41, subd. (a)(4) [“A determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer”].)

The parties extensively cite pleadings, orders and opinions in support of the respective positions via three separate requests for judicial notice. The court cannot consider the truth of any matters submitted, and remains limited to the operative acts of the recorded documents and orders.

Alden first challenges the complaint on the basis of the one year statute of limitations due to the Westleys failure to file said complaint within one year of the December 8, 2021, order disqualifying counsel. Alden additionally maintains the Westleys fail to state any actual damages in support of any claim given the trial remains pending in Van Nuys Superior Court for May 19, 2025. The Westleys contend the order disqualifying counsel was stayed pending the Alden filed appeal. Alden filed a notice of appeal on December 9, 2021, one day after the order, and remittitur on the order affirming the disqualification was only issued on April 21, 2023. The subject complaint was filed on February 29, 2024—less than one year from the remitter. On the damages claim, the Westleys maintain the attorneys fees arising from new counsel taking over the case constitutes the damages.

The complaint in the instant action indisputably relies on a claim of alleged legal malpractice and a conflict of interest in the prosecution of the Van Nuys Superior Court action. The statute of limitations on an action against an attorney arising from wrongful acts of the attorney in the representation of a client accrues within one year of discovery of the acts constituting the wrongful act, or within four years from the date plaintiff should have discovered the wrongful acts. (Code Civ. Proc., § 340.6.) The disqualification order establishes a basis for inferring actual or constructive knowledge of the purported malpractice within the scope of the demurrer. Nevertheless, the discovery of the alleged acts still requires a showing of damages.

“In civil malpractice cases, the elements of a cause of action for professional negligence are: ‘(1) the duty of the attorney to use such skill, prudence and diligence as members of the profession commonly possess; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage. [Citations.]’” (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 536.) “In a litigation malpractice action, the plaintiff must establish that but for the alleged negligence of the defendant attorney, the plaintiff would have

obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred.” (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.) The statute tolls where plaintiff has not sustained actual injury, the attorney continues to represent plaintiff on the specific subject matter, the attorney willfully conceals facts constituting the wrongful act or omission, a legal or physical incapacity prevents action, or in cases of a written instrument, an event triggered from the written instrument. (Ibid.) Wrongful acts include breach of contract, tort and breach of fiduciary claims. Only actual fraud claims are excluded from the statute of limitations. (Levin v. Graham & James (1995) 37 Cal.App.4th 798, 805.) The cause of action accrues when the party sustains actual injury. (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 764.)

The operative complaint lacks a sufficient showing of accrued damages from the purported malpractice itself, and that attorney fees in assuming the role as new counsel (assuming a billable hourly agreement) in any way constitutes a form of damages for purposes of determining a legal malpractice claim. The lack any judgment due to the pending action in Van Nuys Superior Court precludes any determination of any incurrence of damages based on the legal malpractice and breach of fiduciary duty claims, as currently presented in the subject action. The otherwise legally unsupported position regarding the incurrence of attorney fees as a function of taking over representation following disqualification inadequately supports any finding of legal malpractice or breach of fiduciary duty damages. The court declines to consider legally unsupported argument.

The demurrer is therefore sustained with leave to amend. The court will not consider argument to sustain the demurrer without leave to amend in that such an order could preclude a potential claim pending the outcome of the Van Nuys jury trial.

The court however finds sustaining the demurrer with any typical leave period of 30 days brings the parties back for a demurrer to the amended pleading potentially before completion of the May 2025 trial in Van Nuys. The trial in Van Nuys is set 90 days from the date of the hearing on the subject order. The court assumes a trial of no more than two weeks, and full resolution within 30 days. The court therefore sustains the demurrer with 120 days leave to amend. The Westleys may NOT add any new causes of action, but may add new facts updating the result of the jury trial as a function of the damages claim.

The court also declines to consider any request for a stay of the subject complaint. The Westleys filed the instant action prior to their March 15, 2024, filed cross-complaint for Professional Negligence, Breach of Fiduciary Duty, and Declaratory Relief, in the lead case, 24STCV01168. The Westleys dismissed the cross-complaint in the lead case without prejudice on July 29, 2024. While procedurally questionable and perhaps an effort to forum shop, because of the order deeming the cases related, and potential consolidation of the two actions could lead to a designation of the subject action as a cross-complaint (again), the court finds a stay of the action impractical.

The court will concurrently conduct the Casement Management Conference

All parties are also ordered to acknowledge the lead case, 24STCV01168, and related status, on ALL future pleadings. A number of motions appear scheduled from March 5 through September 24, 2025, with a lead off motion for trial preference.

Defendant Alden to give notice.