Judge Thomas D. Long, Case Number: 24STCV24452, Date: 2025-05-20 Tentative Ruling

On September 20, 2024, Plaintiff Michael Hakim filed this legal malpractice action against Defendants Greenberg Glusker Fields Claman & Machtinger LLP and Fred A Fenste.

Defendants’ request for judicial notice of filings in Har-Bro West, Inc. v. Michael Hakim, Case No. 19SMCV0158 is granted. The Court takes judicial notice of the existence, legal effect, and arguments advanced in the documents, and not the truth of the contents as fact. (Day v. Sharp (1975) 50 Cal.App.3d 904, 914 [“‘[A] court cannot take judicial notice of hearsay allegations as being true, just because they are part of a court record or file. A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.’”]; Bach v. McNelis (1989) 207 Cal.App.3d 852, 864-865 [a court “may not judicially notice the truth of assertions in declarations or affidavits filed in court proceedings.”].)

A demurrer for sufficiency 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, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.) “Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice.” (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 556.)

Defendants argue that Plaintiff’s claims are barred by the statute of limitations for legal malpractice.

To sustain a demurrer on the statute of limitations, the running of the statute must appear clearly and affirmatively on the face of the complaint. (Geneva Towers Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4th 769, 781.) “‘[I]t is not enough that the complaint might be time-barred. [Citation.]’” (Ibid.)

An action against an attorney for a wrongful act or omission arising from professional services must be brought within the earlier of (1) one year after the plaintiff discovers (or through the use of reasonable diligence should have discovered) the fact constituting the wrongful act or omission, or (2) four years after the date of the wrongful act or omission. (Code Civ. Proc., § 340.6, subd. (a).) The time shall not exceed four years, but it is tolled when the plaintiff has not sustained actual injury. (Ibid.) “The test for actual injury under section 340.6 . . . 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.” (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 751.)

Plaintiff alleges that Defendants failed to timely designate an expert for trial in another matter regarding fire damage and real property. (Complaint ¶¶ 8-9.) This failure “cost Hakim millions of dollars in value of the case as, without an expert, he was forced to settle the matter for pennies on the dollar.” (Complaint ¶ 10.)

Defendants substituted into Case No. 19SMCV0158 as Plaintiff’s counsel on July 30, 2021. (RJN, Ex. 2.) The plaintiff in Case No. 19SMCV0158 filed a motion in limine to exclude Plaintiff’s (the defendant in that action) expert witness because the witness was not made available for deposition. (RJN, Ex. 4.) On July 28, 2022, the Court granted Defendants’ motion to be relieved as Plaintiff’s counsel. (RJN, Ex. 5.) On February 3, 2023, Plaintiff filed a motion for leave to designate experts. (RJN, Ex. 10.) That motion asserted that “[t]he failure to submit the expert witnesses information was the result of mistake, inadvertence, or excusable neglect on Defendants previous counsel, as the Court previously was made aware of at the time of the Motions in Limine to exclude Defendants and Cross-Complainants from having any experts not disclosed.” (Id. at p. 6.) Plaintiff therefore knew or should have known that Defendants, as his former counsel, “failed to timely designate an expert for trial” no later than February 3, 2023—more than one year before Plaintiff filed this action. (See Complaint ¶ 9.)

Additionally, the parties in Case No. 19SMCV0158 filed a Notice of Settlement on August 9, 2023. (RJN, Ex. 13.) Plaintiff sustained his injury of being “forced to settle the matter for pennies on the dollar” no later than August 9, 2023—also more than one year before Plaintiff filed this action.

This action for legal malpractice is barred by the one-year statute of limitations. The demurrer is sustained.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court