Court Sustains Demurrer Without Leave To Amend In Legal Malpractice Case

March 26, 2019

Sharon L. Hightower, a partner in the San Jose office, and Mingzi Ouyang, an associate in the San Jose office, successfully obtained a Court Order sustaining Defendant’s Demurer to Plaintiff’s Complaint in a legal malpractice case in Monterey County Superior Court, following a hearing held on January 25, 2019. 

In this contested action, Ms. Hightower and Ms. Ouyang represented Defendant, a lawyer from Monterey, California, who was Plaintiff’s counsel in a prior lawsuit filed by Plaintiff against her former federal entity employer for alleged discrimination, violation of civil rights, and under the Due Process Clause.  This employment lawsuit was initially filed in the United States District Court.  After a Judgment was entered against Plaintiff in the District Court, Plaintiff appealed to the Court of Appeals for the Ninth Circuit.  Defendant was Plaintiff’s sole counsel of record through the trial proceeding in the District Court and several months into the appellate proceedings, until Defendant moved to withdraw as counsel of record and obtained an order granting the requested withdrawal from the Ninth Circuit Court.  Approximately three years later, the Ninth Circuit issued a decision affirming the District Court’s ruling in the employment lawsuit.   Although Defendant filed a notice of withdrawal with the District Court, her name remained as Plaintiff’s counsel of record in the District Court’s docket.  

Plaintiff contended that Defendant failed to exercise reasonable care and diligence in representing her in the prior employment lawsuit.  Ms. Hightower and Ms. Ouyang filed the Demurer on the grounds that Plaintiff’s claims were barred by the statute of limitations for legal malpractice cases prescribed in Code of Civil Procedure § 340.6.  In opposing the demurrer, Plaintiff’s counsel argued that Defendant continued to represent Plaintiff in the District Court and the fact that Defendant remained as the named counsel of record in the District Court constituted “continuous representation” for the purpose of Code of Civil Procedure § 340.6 (a)(2) that tolled the statute of limitations. 

In responding to the Opposition to Demurrer, Ms. Hightower and Ms. Ouyang argued that Plaintiff’s counsel’s interpretation of Code of Civil Procedure § 340.6 (a)(2) was inconsistent with the Legislative intent, which narrowly defined the type of “continuous legal representation” tolling the statute of limitations.   While Defendant remaining counsel of record for Plaintiff in the District Court may be considered legal representation under the broad standards applicable to attorney-client relationship, it is not the type of “continuous legal representation” that would trigger an extended period of statute of limitations.  Additionally, Ms. Hightower and Ms. Ouyang argued that the appeal to the Ninth Circuit divested the District Court of jurisdiction over the matters set forth in the Notice of Appeal.

The Court agreed with defense counsel’s interpretation of Section 340.6(a)(2) and the analysis of the divestment of jurisdiction after appeal.  After hearing the oral argument from both sides, the Court sustained the Demurer without leave to amend.