Attorney Malpractice in California

A claim for legal malpractice is tolled during the time that the plaintiff has not sustained “actual injury.” [CCP sec. 340.6(a)] In Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 747, the California Supreme Court addressed the issue of when “actual injury” is sustained by a former client who has discovered the facts constituting the attorney malpractice.

Here, Rummonds argues that Keystone’s indemnity cross-complaint is not a true legal malpractice claim because Keystone was not Rummonds’ client, and it has no standing to bring a legal malpractice claim for any alleged professional negligence arising out of Rummonds’ representation of Gerawan in the underlying action. In fact, Rummonds argues that it would violate the rule against the assignment of legal malpractice claims to allow a non-client to bring a legal malpractice claim against the attorney.

Discovery of attorney malpractice occurs when the aggrieved client knows or should have known the material facts constituting the attorney's wrongful act or omission (not when the client realizes that those facts amount to professional negligence). [Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 C3d 176, 190; Village Nurseries, L.P. v.

The bills themselves in no way constitute a worse result under the current standard for legal malpractice. An argument in defense to the recovery of common count and/or quauntum meruit requires a different pled cause of action or affirmative defense. The demurrer is sustained without leave to amend as to the first cause of action for legal malpractice.

Defendants' Demurrer to the FAC's Third Cause of Action for Negligence (Legal Malpractice). The SAC's Third Cause of Action alleges a cause of action solely by plaintiff Ali against all defendants for professional negligence based on attorney Woller's alleged negligent legal representation of Ali in the underlying action. Defendants Sterling and PCC are allegedly responsible for Woller's professional negligence under the "doctrine of Respondeat Superior." (See SAC ¶ 142.)

According to LKP, because this is a legal malpractice action which is necessarily dependent on Plaintiffs’ damages in the underlying action, then the legal malpractice action should be stayed until the resolution of the underlying action. (Motion, 11-12.)

Professional Negligence / Legal Malpractice (C/A 1) Cross-Defendants argue that this claim is barred by the applicable statute of limitations and barred because Seddick “cannot prove the elements” of the claim. Cross-Defendants’ argument that Seddick “cannot prove the elements” of the claim is really an argument that the facts alleged do not support a valid cause of action.

It is the discovery of facts constituting the wrongful act or omission that triggers the statute of limitations, not the discovery that such facts constitute professional negligence. (Worton v. Worton (1991) 234 Cal.App.3d 1638, 1649.) Even a suspicion of wrongdoing triggers a duty to file a malpractice action. (Peregrine Funding, Inc. v. Sheppared Mullin Richter & Hamptom LLP (2005) 133 Cal.App.4th 658, 685.)

.: 37-2022-00006708-CU-PN-CTL CASE TITLE: HARRISON VS GILLEON [IMAGED] CASE CATEGORY: Civil - Unlimited CASE TYPE: Professional Negligence EVENT TYPE: Demurrer / Motion to Strike CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 03/03/2023 Tentative Ruling on Motion to Strike SAC Harrison v. Gilleon, et al., Case No. 2022-6708 June 2, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

Merck & Co. (2003) 107 Cal.App.4th 454, Ogletree argues that emotional distress damages are not available in an attorney malpractice action outside the criminal defense context. Id. at 472. As an initial matter, Friedman was not a legal malpractice case and cannot be relied upon for the broad proposition Ogletree asserts. At best, the portion of Friedman cited in Ogletree’s motion is dicta.

As to the argument the cross-compliant is uncertain because the settlement agreement is not attached, the court knows of no authority, and none is cited, holding that the terms of any contract involved in a cause of action for breach of fiduciary duty or professional negligence must be plead in any particular fashion or that the contract must be attached. Ten days to answer.

Because the same plaintiff, UCR, in both this action and the Banooni action pursued identical causes of action for attorney malpractice against the same parties, Reiss and Pugh, it is clear that the two actions concern the same acts of professional negligence. Because Plaintiff was represented in the Banooni action, Plaintiff incurred attorney fees to rectify the alleged negligence when it filed the Complaint in the Banooni action.

(Meyberg Defendants) (collectively, Defendants) alleging five causes of action: (1) professional negligence (legal malpractice) [against Payne Defendants and Meyberg Defendants]; (2) breach of fiduciary duty [against Payne Defendants and Meyberg Defendants]; (3) breach of contract (legal) [against Payne Defendants and Meyberg Defendants]; (4) professional negligence (accounting malpractice) [against CBIZ Defendants]; and (5) breach of contract (accounting) [against CBIZ Defendants].

Plaintiffs’ first two causes of action are for professional negligence. “‘The elements of a cause of action for professional negligence are: (1) the duty of the professional to use such skill, prudence and diligence as other members of the profession commonly possess and exercise; (2) breach of that duty; (3) a causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional negligence.’ [Citation.]” (Shopoff & Cavallo LLP v.

These questions of fact in a case such as the one at bench require expert evidence...After a shaky start, the California law has evolved the proposition that the issue of attorney malpractice is in essence a question of fact similar to that involved in other professional negligence.” Lipscomb v. Krause (1978) 87 Cal.App.3d 970, 975.

Demurrer Legal Malpractice The elements of legal malpractice 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.]’ [Citation.]” (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 536.)

(Meyberg Defendants) (collectively, Defendants) alleging five causes of action: (1) professional negligence (legal malpractice) [against Payne Defendants and Meyberg Defendants]; (2) breach of fiduciary duty [against Payne Defendants and Meyberg Defendants]; (3) breach of contract (legal) [against Payne Defendants and Meyberg Defendants]; (4) professional negligence (accounting malpractice) [against CBIZ Defendants]; and (5) breach of contract (accounting) [against CBIZ Defendants] [1] .

DISCUSSION On 7/28/16, Plaintiffs Virginia Castro and Roco Industries, Inc. dba Get’m Wear (referred to herein jointly as “Plaintiffs”) filed a First Amended Complaint (hereinafter, “FAC”) for (1) Professional Negligence; and (2) Breach of Fiduciary Duty against Defendants Oaktree Law (hereinafter, “Oaktree”); Rene J. Dupart (hereinafter, “Dupart”); and DOES 1-10. The compliant is for alleged attorney malpractice and breach of fiduciary duty. Pursuant to Charnay v.

Jacobson (dba Bay Oak Law) to stay the instant professional negligence action pending the final resolution of the underlying case, Kathleen K. Reeves v. Monica Leasure, et al. (Case No. HG17880338) is GRANTED. Attorney Jacobson represented Plaintiff Reeves from April 19, 2018 to June 3, 2019 in the underlying case. The Court takes notice of the recent setting of the April 2023 trial date in the underlying case.

This is a “settle-and-sue” legal malpractice situation. “In the legal malpractice context, the elements of causation and damage are particularly closely linked.” (Hecht, Solberg, Robinson, Goldberg & Bagley LLP v. Superior Court (2006) 137 Cal.App.4th 579, 591 [40 Cal. Rptr. 3d 446].)

As to the 1st Cause of Action for Legal Malpractice, Defendant’s motion for summary adjudication is granted. Defendant has met her burden of demonstrating Plaintiff cannot establish the elements of his cause of action for legal malpractice.

“In a typical professional negligence case against a litigation attorney, a determination of the merits of the underlying lawsuit must be made in order to adjudicate the elements of causation and damages.” (Ibid., internal citations omitted.) “This method of presenting a legal malpractice lawsuit is commonly called a trialwithin a trial.” (Ibid., internal citations omitted.)

procedural history Plaintiffs filed the Complaint on November 25, 2019, alleging one cause of action for professional negligence. On July 21, 2020, Plaintiffs filed the FAC alleging four causes of action: Professional negligence Professional negligence Breach of contract Interference with prospective economic advantage On August 5, 2020, Defendants filed the instant Demurrer to the FAC. On November 24, 2020, Plaintiffs filed an Opposition. On December 2, 2020, Defendants filed a Reply.

(See Anderson Zeigler Disharoon Gallagher & Gray (2003) 109 Cal.App.4th 1287, 1294 [stating that the existence of an attorney-client relationship is essential to the “duty” element of attorney malpractice]; see Borissoff v. Taylor & Faust (2004) 33 Cal.4th 523, 529 [stating that attorneys have no professional obligation to nonclients and thus cannot be held liable to them for the consequences of their professional negligence].)

Accordingly, Plaintiff’s first cause of action for professional negligence is not time-barred as a matter of law. 2.

At best, this is a garden variety action for professional negligence.” However, plaintiff’s claim for punitive damages does not relate to the third cause of action for legal malpractice, but to the fourth cause of action for breach of fiduciary duty. Punitive damages are available for a breach of fiduciary duty so long as the requirements of Civil Code Section 3294(a) are met. See, Sequoia Vacuum Systems v.

The court does not and need not reach the issue of the sufficiency of the aider/abettor allegations. 3rd Cause of Action – Professional Negligence (Legal Malpractice) Plaintiffs expressly allege the sole reason they have standing to maintain an action against defendants for legal malpractice while defendants were acting as Lewis Grauss’ attorney is that they are the intended express beneficiaries of Lewis Grauss’ estate as identified in the various trust documents at issue. (1st Amended Complaint, paragraph

Plaintiff discharged her attorneys and filed a notice of appeal as a self-represented litigant, but later voluntarily dismissed her appeal. ( Id. ) Plaintiff then sued her attorneys for legal malpractice. ( Id. ) The California Supreme held that the statute of limitations for legal malpractice commences “on entry of adverse judgment or final order of dismissal.” ( Id. at 615.)

Plaintiff discharged her attorneys and filed a notice of appeal as a self-represented litigant, but later voluntarily dismissed her appeal. ( Id. ) Plaintiff then sued her attorneys for legal malpractice. ( Id. ) The California Supreme held that the statute of limitations for legal malpractice commences “on entry of adverse judgment or final order of dismissal.” ( Id. at 615.)

Attorney Malpractice Defendants claim that the malpractice claim fails because plaintiff has not pled facts sufficient to constitute a cause of action.

Based on the plain language of the March 11, 2020 Amendment, the arbitration agreement does not cover the claims for professional negligence and breach of fiduciary duty asserted here.

Based on the foregoing, Plaintiffs filed their initial complaint in this action on June 29, 2017, asserting claims for: (1) attorney malpractice; (2) breach of fiduciary duty (concealment); (3) breach of fiduciary duty; and (4) attorney malpractice (conflict of interest).

To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.’ (Citation.)” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.) As noted above, section 631 requires jury fees to be deposited “on or before the date scheduled for the initial case management conference in the action.”

Therefore, Defendants have not identified a missing element within the cause of action for professional negligence. Defendants also cite Belcher & Collins, P.C. v. Northwest Airlines, Inc., (1994) 858 F.Supp. 1442, for the proposition “[p]arties who settle their underlying case and then later regret it cannot sue their attorneys for legal malpractice on that basis alone.” (Dem., p. 8:23- 24.) The case does not stand for the broad rule Defendants suggest. (See Belcher & Collins, P.C. v.

A Legal Malpractice Cause Of Action May Not Be Lawfully Assigned In California Under The Circumstances Established By The Stipulated Facts. A cause of action for legal malpractice is not assignable under California law. (Goodley v. Wank & Wank, Inc. (1976) 62 Cal. App. 3d 389, 398; Jackson v. Rogers & Wells (1989) 210 Cal. App. 3d 336; Kracht v. Perrin, Gartland & Doyle (1990) 219 Cal. App. 3d 1019, 1022-1023, [involuntary assignment of attorney malpractice claim, made pursuant to Code Civ.

Emotional Damages/Legal Malpractice: Generally speaking, an attorney’s liability in a legal malpractice action is for damages directly caused by the attorney’s negligence. (Ferguson v. Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037, 1045; see also Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.)

Thus, legal malpractice constitutes both a tort and a breach of contract. (Jackson v. Rogers & Wells (1989) 210 Cal.App.3d 336, 342.) Here, all three causes of action in the FAC sound in legal malpractice, and rely on those supporting facts. Thus, the gravamen of the FAC is legal malpractice, which Plaintiff lacks standing to bring.

In her complaint, Plaintiff has not alleged each element of a legal malpractice cause of action. At most, she alleges she retained Defendant from June 3 to September 29, 2014, and that Defendant lost her cause. None of the necessary elements of a legal malpractice claim have been alleged, such as Defendant’s duty and how he breached it, or how his legal representation of Defendant fell below that standard of care. There is also no showing of actual causation.

In her complaint, Plaintiff has not alleged each element of a legal malpractice cause of action. At most, she alleges she retained Defendant from June 3 to September 29, 2014, and that Defendant lost her cause. None of the necessary elements of a legal malpractice claim have been alleged, such as Defendant’s duty and how he breached it, or how his legal representation of Defendant fell below that standard of care. There is also no showing of actual causation.

LEGAL MALPRACTICE against the Layfield Defendants; 2. BREACH OF FIDUCIARY DUTY against the Layfield Defendants; 3. DECLARATORY JUDGMENT against the Layfield Defendants; 4. LEGAL MALPRACTICE against Holt-Brooke; 5. BREACH OF FIDUCIARY DUTY against Holt-Brooke; 6. LEGAL MALPRACTICE against the Makarem Defendants; 7. BREACH OF FIDUCIARY DUTY against the Makarem Defendants; 8. FRAUD against Ronald Wael Makarem; and 9. RESTITUTION (UNJUST ENRICHMENT) against the Makarem Defendants.

The Court’s finding on the issue of legal malpractice was based on two bases: 1) the Defendant did not provide admissible evidence that the Plaintiff’s legal services were below the standard of care; and 2) the Defendant’s answer did not plead legal malpractice as an affirmative defense. Either basis supports the Court’s finding that the Defendant had not established a question of fact by claiming that legal malpractice applies.

To recover emotional distress damages related to legal malpractice, the client must show intentional or affirmative misconduct by the attorney, or the client must have sustained, as a direct and reasonably foreseeable consequence of the attorney’s negligence, an injury apart from the financial loss that is the normal consequence of attorney malpractice. ( Merenda v. Superior Court (1992) 3 Cal.App.4th 1, 10; see Smith v.

On June 29, 2017, Plaintiffs filed the first amended complaint (“FAC”) asserting the following causes of action: (1) attorney malpractice; (2) breach of fiduciary duty (concealment); (3) breach of fiduciary duty; and (4) attorney malpractice (conflict of interest). Defendants subsequently demurred to the second, third and fourth causes of action on the ground of failure to state facts sufficient to constitute a cause of action, and moved to strike portions of the FAC. (Code Civ. Proc., §§ 430.10, subd.

First and Second Causes of Action Plaintiff’s first and second causes of action are for legal malpractice and professional negligence. Defendant correctly notes that the two causes of action are entirely duplicative, and should be pled as one single cause of action for legal malpractice. The demurrer to the first and second causes of action is therefore sustained.

Under the settlement, OTHC’s legal malpractice claims are being released in exchange for waiver of the $100,000 attorney’s fee award imposed against Plaintiff individually. As such, OTHC is not receiving any benefit for waiver of derivative legal malpractice claims that are technically OTHC’s claims.

The motion to bifurcate the issue of subrogation from the issues of legal malpractice by defendants Madison Harbor, ALC, Robert Sabahat and Ali Parvaneh in regard to plaintiff Matthew Foster’s claim for professional legal malpractice is DENIED. The 1977 amendment to C.C.P. § 598 has rendered the holding in Cook essentially vitiated. See, Younger on California Motions, § 23:7.

Although no claim for legal malpractice was expressly alleged, plaintiff's counsel admits this is a legal malpractice case. The Demurrers for uncertainty and failure to allege whether the contract is written, oral or implied are overruled. The Demurrer for failure to state sufficient facts is sustained. Plaintiff has not alleged sufficient facts to support a claim for legal malpractice. (See, Herrington v.

Loube (1998) 64 Cal.App.4th 421 does hold that attorney’s fees are not available in a professional negligence case, Plaintiffs plead more than just attorney malpractice in this case. The motion to strike attorney fees allegations is denied. Emotional Distress Damages Plaintiffs’ claim for emotional distress damages also is adequately set forth. Conversion is an intentional tort, and is pled as such in the TAC. (Collin v. American Empire Ins. Co. (1994) 21 Cal.App.4th 787, 812.)

Sustain the demurrer to the 5th cause of action for legal malpractice as to individual defendants Gary W. Nevers and Robert E. Wynner for uncertainty, with leave to amend. Mr. Dodson alleges that the law firm defendant committed legal malpractice in connection with the firm's representation of Mr. Dodson relating to the underlying litigation but he fails to plead facts that show that any cause of action for legal malpractice lies against the individual defendants Nevers and Wynner. 5.

First Cause of Action Professional Negligence Defendants demur to the first cause of action for legal malpractice on the ground that it has not been sufficiently alleged.

On August 24, 2022, Plaintiffs filed their Complaint alleging three causes of action for: (1) General Negligence, (2) Professional Negligence, and (3) Wrongful Death.

The statute of limitations for attorney professional negligence claims is one year from the date the plaintiff discovers or should have discovered the facts underlying the malpractice claim. (Code Civ. Proc. § 340.6, subd. (a).) “Discovery of any appreciable and actual harm from the attorney's negligent conduct establishes a cause of action and begins the running of the limitations period.” (Laird v. Blacker (1992) 2 Cal.4th 606, citing Budd v. Nixen (1971) 6 Cal.3d 195, 201.)

Plaintiff’s claims are subject to arbitration under ¶16 of the retainer agreement Plaintiff argues the only cause of action encompassed by the arbitration agreement is the 5 th c/a for professional negligence. Plaintiff argues the remaining claims involve Defendant’s actions after Defendant’s representation of Plaintiff was over. Plaintiff argues the remaining claims pertain to Defendant’s failure to remit funds due and owing to her from the prior litigation.

Plaintiff’s claims are subject to arbitration under ¶16 of the retainer agreement Plaintiff argues the only cause of action encompassed by the arbitration agreement is the 5 th c/a for professional negligence. Plaintiff argues the remaining claims involve Defendant’s actions after Defendant’s representation of Plaintiff was over. Plaintiff argues the remaining claims pertain to Defendant’s failure to remit funds due and owing to her from the prior litigation.

Attorney Kyle Kveton (“Kveton”) stated that he too did not have any communications with Woosley by which he learned any confidential information concerning the handling of legal malpractice actions or which would be material to the present action. (Kveton decl., ¶ 4.)

Specifically, the Legal Malpractice Plaintiffs alleged that Johal and Hanson Bridgett's malpractice necessitated the filing of the instant action. As such, as part of their claimed damages in the Legal Malpractice Action, the Legal Malpractice Plaintiffs sought reimbursement for the legal fees and costs incurred in the instant action. In January 2015, the Legal Malpractice Action settled, with Johal and Hanson Bridgett, LLP paying an undisclosed sum to Plaintiffs (the "Settlement Agreement").

However, the FAC alleges 4 different causes of action, and the moving papers discuss only the 1st cause of action for legal malpractice. Defendants fail to discuss any of the 3 remaining causes of action. The argue that the one-year statute of limitations governs a claim for legal malpractice, but they make no showing that the one-year statute of limitations also governs the three remaining causes of action.

The demurrer to the first cause of action for legal malpractice and sixth cause of action for breach of fiduciary duties is overruled. Defendants Frank De Santis dba Law Offices of Frank De Santis; Valorie E. Ryan and Thomas De Santis are directed to answer the TAC within 14 days of this ruling. Because non-lawyer Defendant Tessie M. Ocampo is not subject to the causes of action that remain in the complaint (legal malpractice/breach of fiduciary duty), she is dismissed from this case.

Elements of a Cause of Action for Criminal Legal Malpractice: “ ‘The elements of a cause of action in tort for professional negligence are: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise: (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.

Esposito is a defendant in three separate actions, 1 venued in Fresno and 2 in Los Angeles Counties, wherein he alleges that judgments have been taken against him (or will be entered) due to the defendant's legal malpractice in allowing defaults to be taken, not timely moving to set them aside etc. 2. Due to the commonalities of law and fact among the various legal malpractice actions, plaintiff has sound reason to bring all of his claims against Attorney Bright in a single action.

In response, Plaintiff dismissed her second cause of action for fraud and stipulates that the Demurrer has merit as to her first cause of action for legal malpractice. Plaintiff asks that the court allow her to file a Second Amended Complaint. Therefore, the Court sustains the Demurrer based on Plaintiff’s acknowledgment that her pleading fails to state a claim for legal malpractice and/or is uncertain. The Court allows leave to amend to state a claim for legal malpractice.

The statute of limitations for a legal malpractice action is one year. (Code Civ. Proc., § 340.6, subd. (a).) Defendants formally substituted out of the underlying action on May 14, 2014, and thus, under the general rule, plaintiff had until May 14, 2015, within which to file this legal malpractice action. Because this action was not filed until April 20, 2017, or almost two years beyond the limitations period, the complaint is time-barred unless the statute of limitations is otherwise tolled.

Breach of Contract Defendants demur to the 2nd cause of action for breach of contract, arguing that this cause of action is essentially a professional negligence (legal malpractice) claim. “Legal malpractice consists of the failure of an attorney ‘to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake.’ [Citation.]

However, the Court of Appeal found that even when the complaint only alleges that the attorney engaged in self-dealing in an otherwise satisfactory representation and settlement of the underlying case, “[w]hile not a model of pleading, such an allegation is sufficient to charge an act of professional negligence.” (Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1621.)

Legal Malpractice, 1st COA – Defendants contend Plaintiff has failed to allege facts supporting legal malpractice. The TAC alleges that Defendants failed to meet the standard of care for conduct concerning the settlement, and by failing to appropriately counsel Plaintiff on possible insurance coverage and the terms of settlement. These allegations are sufficient, and this ground is overruled.

Sullivan (1975) 48 Cal.App.3d 557, 569, 122 Cal.Rptr. 119; 1 Mallen & Smith, Legal Malpractice (2007 ed.) Vicarious Liability, § 5.8, p. 609 [“A law firm, of course, is liable for the conduct of its principals and employees”].)

“To prevail in a legal malpractice action, [s]imply showing the attorney erred is not enough.” (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 166.) Plaintiff does not respond to Moving Defendant’s argument in his demurrer with respect to the sufficiency of the first cause of action. Plaintiff presents mere factual assertions that the complaint properly sets forth the first cause of action without any citation to legal authority with respect to the elements of a legal malpractice cause of action.

While the legal malpractice claim is not uncertain, consideration of the judicially noticeable motion for reconsideration filed by plaintiff Steve Ryan in the underlying action discloses that it may be time-barred per Code of Civil Procedure 340.6. Mr. Ryan is given leave to amend, if he can do so in good faith, to allege facts showing that his legal malpractice claim is not time-barred notwithstanding the motion for reconsideration he filed in the underlying action.

The legal malpractice claim arises from the adverse ruling in the Ventura County case (see Complaint ¶ 14) which is currently on appeal (see RJN Exs. 2-3). Therefore, a temporary stay is apparently appropriate in this legal malpractice case (see Adams v. Paul (1995) 11 Cal.4th 583, 593), and the motion is granted. The Court expects to set this matter for OSC’s re Lifting the Stay at 90-day intervals. Sometimes appeals are noticed and that is the end of it.

) - Defendants knew at the time the legal malpractice action was filed that they could have redressed the failure to tender at any time after commencing representation of the Eiselsteins in May of 2015, and knew there was no tenable claim against Plaintiffs for legal malpractice, yet initiated the claim anyway. (Complaint ¶ 35.)

If Plaintiffs are alleging legal malpractice based on Miller’s attorney-client relationship with Gross and legal malpractice based on Integria’s attorney-client relationship with Gross, these claims must be segregated into different causes of action. If Plaintiffs are alleging legal malpractice based on Meyer’s attorney-client relationship with Gross, Plaintiffs must clearly allege the existence of such a relationship between Meyer and Gross.

A plaintiff must establish that in absence of the legal malpractice “it is more likely than not the plaintiff would have obtained a more favorable result.” (Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1509.) “To prevail in a legal malpractice action, [s]imply showing the attorney erred is not enough.” (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 166.) Under this standard, the FAC fails to state sufficient facts to constitute a legal malpractice cause of action.

Gravamen of Contract Claim is Legal Malpractice DENIED on this ground. Pistone argues correctly that the gravamen of Reid’s breach of contract claim is legal malpractice. However, Pistone argues incorrectly that he has demonstrated as a matter of law that Reid cannot prevail on his legal malpractice claim. Plaintiff shall serve notice of both rulings above.

Based on the complaint allegations, CCP §340.6 applies to the 1 st cause of action for legal malpractice cause of action. Professional negligence does not fall within the exception to CCP §340.6 for actual fraud. Defendant Sichi was Plaintiffs attorney as an associate with Finnegan & Diba. See TAC, ¶3. Defendant Finnegan & Diba represented Plaintiff in the prior litigation from 11-21-16 to 10-11-18. See TAC, ¶12; Defendants RJN, Exs. A and C.

The court declines to consider this argument as a basis for granting summary judgment because the complaint allege such communications as a factual basis for the claim of legal malpractice. Plaintiff’s motion is denied. 6

Legal malpractice The first cause of action is for legal malpractice. The Complaint alleges that Urgiles was never served with any correspondence regarding the settlement and suggests that the settlement procedure was inadequate. (Complaint ¶¶ 16–19.) The settlement procedures utilized in the underlying action were judicially approved. (RJN 1, 5.)

Plaintiff’s complaint alleges a cause of action for: (1) negligence against Hernandez and New Alliance in connection with the sale of the home; and (2) legal malpractice against Rosiak. Plaintiff’s claim against Rosiak arises from Rosiak’s alleged professional negligence with respect to the home-buying transaction and representation in the lawsuit filed by the prospective home buyer against Plaintiff.

Defendants argues that Plaintiffs’ sole cause of action for legal malpractice arises out of protected activity. The Court agrees. In a straight-forward legal malpractice case, a plaintiff seeking correction of the alleged scrivener’s error would bring a claim for legal malpractice, and the wrong complained of would be the attorney’s negligent preparation of the estate documents because the estate documents do not reflect the testator’s actual intent. This is not a straight-forward legal malpractice case.

“‘The elements of a cause of action for professional negligence are: (1) the duty of the professional to use such skill, prudence and diligence as other members of the profession commonly possess and exercise; (2) breach of that duty; (3) a causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional negligence.’ [Citation.]” Loube v. Loube, 64 Cal.App.4th 421, 429 (1998).

Background This action arises out of a legal malpractice claim. On July 11, 2018 Plaintiff Hossein Fatehmanesh (“Plaintiff”) filed a complaint, using a PLD-PI-001 form, against Defendant David Lally (“Defendant”) alleging causes of action for (1) negligent breach of contract and (2) professional negligence for legal malpractice. On February 26, 2019, Defendant filed the instant demurrer to the complaint. Plaintiff filed an opposition on February 21, 2019, before the demurrer was filed.

The OShea court held that testimony of an expert on the alleged legal malpractice in that case was necessary to establish whether the defendants purported professional negligence in failing to retain a forensic expert caused the adverse ruling in the underlying family court action. ( OShea , supra , 64 Cal.App.5th at 239.)

MOTION Amended** To Stay Legal Malpractice Action; Matter on calendar for Wednesday, September 12, 2012, Line 5, DEFENDANT ERIC NORDSKOG'S MOTION (Amended) To Stay Legal Malpractice Action. Denied without prejudice to filing a motion for a trial continuance to be heard in department 206. The motion is, in actuality, a motion for a trial continuance which, according to the local rules, needs to be heard in department 206.

THE SECOND CAUSE OF ACTION FOR DISGORGEMENT IS BASED UPON PLAINTIFF'S LEGAL MALPRACTICE CLAIM AND IS BARRED BY THE ONE YEAR STATUTE OF LIMITATIONS. C.C.P. SECTION 340.6. FURTHER, IT IS UNLIKELY THAT PLAINTIFF CAN STATE A CLAIM BASED UPON DEFENDANT'S PREPARATION OF A STATEMENT OF DECISION AND THE ALLEGATIONS RELATED TO DEFENDANT'S HANDLING OF THE APPEAL LACK THE REQUISITE SPECIFICITY TO ALLEGE A LEGAL MALPRACTICE CLAIM. =(302/PJM/VC)

First Cause of Action for Legal Malpractice For a legal malpractice cause of action, the plaintiff must plead: (1) the duty of the attorney to use such skill, prudence and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorneys negligence. ( Jocer Enterprises, Inc. v.

Court cannot say, based on the face of the complaint, that the claim is necessarily barred by the statute of limitations for legal malpractice. Moreover, Plaintiff’s first cause of action also alleges a breach of contract, and McKiernan does not show that a breach of contract action is barred on its face.

The Court takes judicial notice of the denials of Plaintiff's petitions for writ of habeas corpus, as well as the orders sustaining demurrers in the other four actions filed by Plaintiff concerning the same alleged legal malpractice.

Overrule Defendant's demurrer to the sole cause of action for legal malpractice in Plaintiff Gotek Energy, Inc.'

The motion is timely and plaintiff's inability to present expert testimony on the legal malpractice claim is a new fact. Defendant shifted the burden of proof by demonstrating that expert testimony is necessary to prove the legal malpractice claim. The question of the application San Francisco Rent Ordinance is critical to plaintiff's claim and it is far from obvious (particularly to a lay person) that the subject unit is covered by the Rent Ordinance.

Here, the facts supporting Plaintiffs claim for breach of duty are indistinguishable from the facts supporting Plaintiffs claim for legal malpractice . There is also no difference in the theory of recovery as a legal malpractice claim requires a breach of duty . ( Kumarperu v.

On November 13, 2015, Cross-Defendant voluntarily dismissed her legal malpractice claim, with prejudice. On June 10, 2016, Cross-Complainants filed a motion for summary judgment and/or summary adjudication on their cross-complaint for unpaid legal fees, which was granted on February 23, 2017. Judgment was entered in favor of cross-complainants on March 2, 2017.

 Legal Malpractice Claim: Defendant also moves to strike the cause of action, legal malpractice, listed on the FAC, Judicial Council Form item 10, box (f), because plaintiff has failed to check the box indicating “Other” cause of actions.

Conduct that falls below the professional standard of care is not excusable because to hold otherwise would eliminate the express statutory requirement of excusability and eviscerate the concept of attorney malpractice. Henderson v. Pacific Gas and Elec. Co. (2010) 187 Cal.App.4th 215, 229. Fujishige relies on Pietak in support of her Motion.

Defendants say accounting malpractice is equivalent to attorney malpractice, inferring it cannot be assigned as well, citing to Mattco Forge v. Arthur Young & Co. (1997) 52 CA4th 820, 837. However, Mattco only provides that accounting malpractice "is analogous to a malpractice case in which an attorney is accused of losing a plaintiff's case through negligence, and the same evidentiary burden applies."

The Third Amended Complaint in the Southern District case alleges as the Seventh Cause of Action a cause of action for "Professional/Legal Malpractice."

Arthur Young & Co. (1997) 52 Cal.App.4th 820, 834 that where a legal malpractice case arises out of an unsuccessful plaintiff's case, the legal malpractice plaintiff is required to prove that (1) he or she would have obtained a judgment in the underlying case; and (2) the judgment that he or she would have obtained would have been collectable.

Defendants have maintained from the outset of this litigation that this action is barred by California’s legal malpractice statute of due to Plaintiffs having inquiry notice of Defendants’ alleged legal malpractice for over one (1) year prior to April 26, 2018, when they filed the instant action.

The demurrer is sustained with 14 days leave to amend to plead, if possible, a cause of action for legal malpractice and/or breach of fiduciary duty.

Here, Defendant has not offered substantial evidence to support a finding that it is reasonably possible that he will prevail in this legal malpractice action.