Judge: Theresa M. Traber, Case: 22STCV36600, Date: 2024-01-17 Tentative Ruling
Case Number: 22STCV36600 Hearing Date: January 17, 2024 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: January 17, 2024 TRIAL
DATE: NOT SET
CASE: Walid Muhammad v. Elizabeth Yang, et al.
CASE NO.: 22STCV36600 
DEMURRER
TO COMPLAINT
MOVING PARTY: Defendants Tommy SF Wang and Wang IP Law Group, P.C.
RESPONDING PARTY(S): Plaintiff Walid
Muhammad
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is a professional negligence action that was filed on November 18,
2022. Plaintiff alleges that Defendants committed numerous errors in filing a
trademark application on Plaintiff’s behalf, including, inter alia, filing
the mark under the wrong class. As a result, Plaintiff alleges that he was
forced to settle a trademark infringement action against Nike, Inc. for less than
would have otherwise been possible.
Defendants
Tommy SF Wang and Wang IP Law Group, P.C. demur to the Complaint in its
entirety as barred by the applicable statute of limitations.
TENTATIVE RULING:
Defendants
Tommy SF Wang and Wang IP Law Group, P.C.’s Demurrer to the Complaint is
OVERRULED.
DISCUSSION:
Defendants Tommy SF Wang and Wang
IP Law Group, P.C. demur to the Complaint in its entirety as barred by the
applicable statute of limitations.
Legal Standard
A demurrer tests whether the
complaint states a cause of action. (Hahn v. Mirda (2007) 147
Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations
liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and
Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the
defects must be apparent on the face of the pleading or via proper judicial
notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968,
994.) “A demurrer tests the pleadings alone and not the evidence or other
extrinsic matters. Therefore, it lies only where the defects appear on the face
of the pleading or are judicially noticed.” (SKF Farms v. Superior Court
(1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing
is whether the complaint, as it stands, unconnected with extraneous matters,
states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) The
ultimate facts alleged in the complaint must be deemed true, as well as all
facts that may be implied or inferred from those expressly alleged. (Marshall
v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields
v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n
demurrer, pleadings are read liberally and allegations contained therein are
assumed to be true”].) “This rule of liberal construction means that the
reviewing court draws inferences favorable to the plaintiff, not the
defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th
1228, 1238.)
Meet and Confer
Before filing a demurrer, the
demurring party shall meet and confer in person or by telephone with the party
who has filed the pleading subject to the demurrer and file a declaration
detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a).)
However, an insufficient meet and confer process is not grounds
to overrule or sustain a demurrer. (Code Civ. Proc., §
430.41(a)(4).)
The Declaration of Marta Alcumbrac
attached to the motion states that counsel for the parties met and conferred
telephonically on July 7, 2023 and on July 21, 2023, as well as via email on
July 17, 2023 and July 20, 2023. (Declaration of Marta Alcumbrac ISO Demurrer
¶¶ 2-3.) Defendants have therefore satisfied their statutory meet and confer
obligations.
Request for Judicial Notice
Defendants
request that the Court take judicial notice of (1) the Complaint filed in the
action IFIMAKEIT Clothing Co. v. Nike Inc. in U.S. District Court D. NJ
Case No. 2:20-cv-17893-JMV-JBC; (2) the Motion to Dismiss in that action filed
on April 19, 2021; (3) the Petition for Cancellation of the Mark in the U.S.
Patent & Trademark Office filed by Nike on July 16, 2021, Docket No.
247958-277; (4) a Request for Extension of Time to Respond to the Petition,
filed August 26, 2021; and (5) the Docket for the U.S. PTO matter involving
Nike and Plaintiff, case No. 92077618.
Plaintiff objects to the documents
as not relevant, improperly offered for the truth of the matters asserted
therein, and not authenticated. The Court concurs with Plaintiff that the
documents are not properly authenticated, nor are they certified copies of
court or administrative records. (See Ross v. Creel Printing &Publishing
Co. (2002) 100 Cal.App.4th 736, 743.) Moreover, the documents are not
relevant to the matter before the Court because they cannot establish that
Plaintiff suffered an actual injury so as to lift the tolling period for Code
of Civil Procedure section 340.6, as described infra. Accordingly,
Defendants’ Requests for Judicial Notice are DENIED. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 (“[J]udicial
notice . . . is always confined to those matters which are relevant to the
issue at hand.”].)
Analysis
Defendants Tommy SF Wang and Wang
IP Law Group, P.C. demur to the Complaint in its entirety on the grounds that
it is barred by the applicable statute of limitations.
Legal
malpractice actions are governed by Code of Civil Procedure section 340.6,
which provides in relevant part:
(a) 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. [. . . ]
Except for a claim for which the plaintiff is required to establish the
plaintiff's factual innocence, the time for commencement of legal action shall
not exceed four years except that the period shall be tolled during the time
that any of the following exist:
(1) The plaintiff has not sustained
actual injury.
(Code Civ. Proc. § 340.6(a)(1).) These provisions, taken
together, effectively state that a claim for professional negligence does not
accrue until the plaintiff sustains actual injury. (Jordache Enterprises,
Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 751.) The test
for “actual injury” is “whether the plaintiff has sustained any damages
compensable in an action, other than one for actual fraud, against an attorney
for a wrongful act or omission arising in the performance of professional
services.” (Id.)
Defendants
argue that this action is barred by the one-year statute of limitations because
Plaintiff admitted to having discovered the alleged wrongful act more than one
year before this action was filed. The Complaint alleges that Defendants committed
several errors in filing a trademark application on Plaintiff’s behalf,
including, inter alia, by filing the mark under the wrong class.
(Complaint ¶¶ 11-13, 15.) According to the pleadings, Plaintiff subsequently
sued Nike Inc. for infringing on Plaintiff’s trademark by using the mark on
shoes. (Id. ¶ 12.) Nike argued that the Mark was not enforceable because
it was filed under a class that did not cover footwear and was based on an
inaccurate Statement of Use and therefore void ab initio. (¶ 13.)
According
to Defendants, Nike filed a Petition for Cancellation of the Mark on July 16,
2021. (RJN Exh. C.) Defendants argue that the statute of limitations began to
run on the date the Petition for Cancellation was filed because the Petition
placed Plaintiff on actual or constructive notice of the deficiencies in the
Trademark Application. Thus, Defendants contend, since Plaintiff did not file
this action until November 2022, the statute of limitations expired before the Complaint
was filed. Even if the Court were to take judicial notice of these filings,
they would not be relevant to this line of argument. The one-year statute of
limitations for legal malpractice actions does not run until the plaintiff
suffers actual injury. (Code Civ. Proc. § 340.6(a)(1); Jordache, supra,
18 Cal.4th at 751.) It is not sufficient to argue that Plaintiff had actual
notice of the deficiencies more than one year before filing the Complaint;
Defendants must establish that Plaintiff was injured more than one year before
filing the Complaint.
Defendants contend
that Plaintiff was injured with the filing of the Petition for Cancellation on
July 16, 2021, notwithstanding the allegations in the Complaint that
Plaintiff’s injury was sustained when the infringement action settled in
November 2022. (Complaint ¶ 14.) Defendants cite no authority—and the Court is
aware of none—standing for the proposition that the filing of a claim
constitutes a legal injury. It is true that “actual injury” does not
necessarily require some form of final adjudication such as judgment or
settlement. (Adams v. Paul (1995) 11 Cal.4th 583, 591.) Were the Court
to adopt Defendants’ position, any petition or claim for relief filed by
anyone, regardless of its validity, would constitute an impairment of the
rights of the party against whom the claim is brought. The Court rejects such a
far-reaching construction of the term “actual injury.” Moreover, the question
of when an “actual injury” occurs is predominantly a factual injury. (Adams,
supra, 11 Cal.4th at 588; Jordache, supra, 18 Cal.4th at
751.) The Complaint alleges that the injury was sustained when the settlement
occurred in November 2022, the same month as this action was filed. (Complaint
¶ 14.) Defendants offer no valid basis to dispute that allegation. Defendants
have thus failed to establish that the Complaint is barred by the one-year
statute of limitations for professional negligence actions.
CONCLUSION:
Accordingly,
Defendants Tommy SF Wang and Wang IP Law Group, P.C.’s Demurrer
to the Complaint is OVERRULED.
Moving
Parties to give notice.
IT IS SO ORDERED.
Dated: January 17,
2024 ___________________________________
Theresa
M. Traber
Judge
of the Superior Court
Any party may submit on the
tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day
before the hearing. All interested parties must be copied on the email. It
should be noted that if you submit on a tentative ruling the court will still
conduct a hearing if any party appears. By submitting on the tentative you
have, in essence, waived your right to be present at the hearing, and you
should be aware that the court may not adopt the tentative, and may issue an
order which modifies the tentative ruling in whole or in part.