SEDGWICK, DETERT, MORAN ARNOLD LLP v. JDTP/Petersen's...hearing his demurrer to the complaint filed...
Transcript of SEDGWICK, DETERT, MORAN ARNOLD LLP v. JDTP/Petersen's...hearing his demurrer to the complaint filed...
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SEDGWICK DETERT MORAN amp ARNOLD LLP Gregory H Halliday (Bar No083554) bull I ltJ
gregory halli daysdmacom Frederick B Hayes (Bar No 165315) fredhayessdmacom 5middot6 3 Park Plaza 17th Floor Irvine CA 92614-8540 Telephone 9498528200 Fax 9498528282
Attorneys for Defendant GREGORY GLENN PETERSEN
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
SAN DIEGO POLlCE OFFICERS ) CASE NO 37-2010-00088794-CU-PN-CTL ASSOCIA TION )
) Plaintiff ) DEFENDANT GREGORY GLENN
) PETERSENS NOTICE OF DEMURRER v ) AND DEMURRER TO PLAINTIFFS
) COMPLAINT MEMORANDUM OFJACKSON DeMARCO TIDUS amp ) POINTS AND AUTHORITIESPECKENPAUGH A LAW CORPORATION )
GREGORY GLENN PETERSEN an ) individual MOHAMED ALIM AHMAD ) DATEmiddot July 2 2010 MALIK an individual and DOES I-50 ) TIME 1030 am
) DEPT 61Defendants )
) ) ) ) )
------------~--------------)
TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD
PLEASE TAKE NOTICE that on July 2 20 I 0 at 1030 am or as soon thereafter as
counsel may be heard in Department 61 of the above-entitled Court located at 330 West
Broadway San Diego California 92101 Defendant Gregory Glenn Petersen will bring on for
hearing his demurrer to the complaint filed by plaintiff San Diego Police Officers Association
pursuant to California Code of Civil Procedure section 43010 and 43030 Petersens demurrer
Defendant Petersens Demurrer To Complaint
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is made on the grounds that the complaint fails to state facts sufficient to constitute a cause of
action Petersen requests that Plaintiff be denied leave to amend
This demurrer is based upon this Notice of Demurrer and Demurrer the attached
Memorandum of Points and Authorities the Request for Judicial Notice and exhibits all other
pleadings papers records and documentary materials on file or deemed to be on file those other
matters of which this Court mayor must take judicial notice the arguments of counsel at the
hearing on this Demurrer and upon such other evidence and materials as this Court may
consider
DATED May 142010 SEDGWICK DETERT MORAN amp ARNOL~P
BYmiddotG~cf~ltfsmiddot ~ Imiddot Frederick B Hayes Attorneys for Defendant GREGORY GLENN PETERSEN
Defendant Petersens Demurrer To Complaint
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DEMURRER TO COMPLAINT
Defendant Gregory Glenn Petersen (Petersen) demurs to the complaint of plaintiff San
Diego Police Officers Association (the SDPOA) on the following grounds
1 The complaint fails to state facts sufficient to a cause of action See Code Civ
Proc sect 431l0(e)
DEMURRER TO FIRST CAUSE OF ACTION
Defendant Petersen demurs to the SDPOAs first cause of action labeled Attorney
Malpractice on the following grounds
1 The complaint fails to state facts sufficient to a cause of action Code Civ
Proc sect 43110(e)
WHEREFORE defendant Gregory Glenn Petersen prays that his Demurrer to the
SDPOAs complaint be sustained without leave to amend and that the court grant such other and
further relief as it deems just and appropriate
DATED May 142010 SEDGWICK DETERT MORAN amp ARNOL LLP
BY1Nd~ I-J Gregory H Halliday Frederick B Hayes Attorneys for Defendant GREGORY GLENN PETERSEN
Defendant Petersens Demurrer To Complaint
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MEMORANDUM OF POINTS AND AUTHORITIES
I
INTRODUCTION AND SUMMARY OF ARGUMENT
This legal malpractice lawsuit by Plaintiff San Diego Police Officers Association (the
SDPOA) arises from a protracted fight between it and the City of San Diego (the City) over
retirement benefits for the CityS police officers Plaintiff alleges that the Jackson DeMarco
Tidus amp Peckenpaugh law firm (JDTP) and two attorneys including defendant Gregory Glenn
Petersen (Petersen) committed legal malpractice while representing the SDPOA in several
underlying litigation matters against the City namely SDPOA v Aguirre et al (Aguirre) and
McGuigan v City ofSan Diego et al (McGuigan) (See Compiaint ~ 9)1middot
Defendant Petersen demurs to SDPOAs legal malpractice complaint on the grounds that
it is barred by Code of Civil Procedure section 3406 the one year statute of limitations
applicable to a cause of action for legal malpractice2
In the underlying McGuigan case the trial court granted judgment in favor of the City
defendants in December 2006 In the underlying Aguirre case the trial court granted summary
judgment in favor of the City defendants and against the SDPOA in May 2007 Although both
matters were appealed Petersens attorney-client relationship with the SDPOA ended in March
2008 when Petersen left the JDTP law firm The SDPOAs complaint offers no facts that would
toll Section 3406 as against Petersen once he left JDTP Beal Bank SSB v Arter amp Hadden
LLP (2007) 42 CaL4th 503 Because the present legal malpractice lawsuit was not filed until
I The cases identified in paragraph 9 of the SDPOAs instant complaint are San Diego Police Officers Association v Aguirre et al United States District Court Southern District of California Case No 05-CV-1581 and McGuigan v City of San Diego Superior Court of San Diego County Case No GIC949883 In the McGuigan case the SDPOA was an objector in the trial court proceedings
2 All further statutory references are to the Code of Civil Procedure unless stated otherwise
The SDPOA must concede that its attorney-client relationship with Petersen terminated in March 2008 when Petersen left the JDTP law firm In an unpublished opinion arising from the McGuigan case the appellate court noted that as of April 2008 the SDPOAs original lead attorney Gregory Peterson [sic] recently left the Jackson DeMarco firm and temporarily sought to take the case with him but at this time counsel for [the SDPOA] remains the Jackson DeMarco firm See McGuigan v City ofSan Diego 2008 WL 4358551 attached as Exh 1 to Petersens Request for Judicial Notice See also Petersens Request for Judicial Notice at Exh 2 [April 2008 order in Aaron]
-4shyDefendant Petersens Demurrer To Complaint
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March 2010 more than two years after Petersens attorney-client relationship with the SDPOA
ended it is time barred by Section 3406 Because no amendment can change this result
Petersens demurrer should be sustained without leave to amend
In addition to being time-barred the SDPOAs legal malpractice action also fails as a
matter of law because the SDPOA cannot meet the causation and damages elements of its
malpractice claim In particular the SDPOA cannot establish that but for the alleged legal
malpractice it is more likely than not that the SDPOA would have achieved a more favorable
outcome Viner v Sweet (2003) 30 Ca14th 1232 1240-1243 (Viner) The purpose of this
requirement which has been in use for more than 120 years is to safeguard against speculative
and conjectural claims Viner 30 CaL4th at p 1241 citing Matteo Forge Inc v Arthur Young
amp Co (1997) 52 CalAppAth 820 832-834 This requirement serves the essential purpose of
ensuring that damages awarded for an attorneys malpractice actually -were caused by the
malpractice Matteo Forge Inc v Arthur Young amp Co supra 52 CalAppAth at p 834 In this
case the SDPOAs failure to allege facts showing that but for the alleged negligence a
different result would have been obtained is another reason why the SDPOAs complaint fails to
state sufficient facts to constitute a cause of action against Petersen
In the underlying lawsuits the SDPOA argued that retirement health benefits were vested
and therefore the City could not unilaterally modify those benefits In this legal malpractice
lawsuit the SDPOA alleges that the defendant attorneys did a poor job of presenting the vested
retirement benefits issue to the courts The SDPOA further alleges that the defendant attorneys
malpractice caused the courts in the underlying litigation matters to rule against the SDPOA in
those cases In making these allegations the SDPOA does not identify a single negligent act or
omission and the SDPOAs silence on this point is telling
The fatal defect inherent in the SDPOAs present action is that it cannot plead or
establish that the defendant attorneys caused the SDPOA any harm In its complaint the
SDPOA speculates that it could have obtained a more favorable outcome had the defendant
attorneys merely done some unspecified act or presented some unidentified argument Whether
the retirement health benefits were vested under federal law is a legal question The SDPOAs
Defendant Petersens Demurrer To Complaint
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allegations fail to even hint at what fact or legal precedent or argument should have been
presented to the courts in the underlying actions to causes them to reach a different conclusion as
to whether under federal law the SDPOAs members retirement health benefits were vested
The SDPOAs inability to prove causation is also the result of the SDPOAs ovvD acts
Although the federal law claims brought by the SDPOA in the underlying litigation were
disposed of on their merits the state law causes of action were dismissed without prejudice and
subsequently the SDPOA filed a state court action SDPOA v Aguirre et aI Superior Court of
San Diego County Case No GIC 841845 After filing this state court lawsuit the SDPOA
dismissed it on December 9 2009 through its attorney Michael Conger who is also the
SDPOAs attorney of record in the present legal malpractice lawsuit Thus state law remedies
which had they been successfully prosecuted would have obviated any claim of damage by the
SDPOA were voluntarily relinquished by the SDPOA when it dismissed its state court lawsuit
Stated otherwise because the SDPOA voluntarily terminated its lawsuit asserting the
state law claims regarding the vesting of the retirement health benefits the SDPOA is now
precluded from asserting any act or omission by the defendants in the present matter caused it
any injury Because the SDPOA chose to dismiss its state claims their eventual outcome is
necessarily in the realm of speculation and conjecture and the SDPOAs present claim fails
Finally the SDPOA cannot seriously assert that it knows what motivated the City or that
the City would not have taken other steps to reduce its exposure for pay andor retirement
benefits if only some fact had been presented or some argument made As this court wells
knows as a result of pension liabilities the City was facing a deficit that exceeded one billion
dollars Simply put the SDPOA cannot show that but for the defendants alleged negligence
it is more likely than not that the courts in the underlying litigation matters would have reached
different conclusions or that these court decisions caused the City to reduce the compensation to
the SDPOAs members when the City had already stated before the underlying litigation
matters were filed that it intended to do so The SDPOA lawsuit fails as a matter of law and
should be dismissed
Defendant Petersens Demurrer To Complaint
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II
STATEMENT OF FACTS
On March 29 2010 the SDPOA filed its present legal malpractice lawsuit against the
JDTP law firm and two attorneys - Petersen and Mohamed Alim Ahmad Malik - asserting a
single cause of action labeled Attorney Malpractice The SDPOA alleges the defendants
represented it in underlying litigation against the City identified as SDPOA v Aguirre et al and
McGuigan v City oSan Diego et al (See Complaint ~ 9) The SDPOAs complaint alleges
nine generally described breaches of the duty of care such as the failure to present sufficient
evidence to prevail on the retiree health claim in SDPOA v Aguirre et al even though such
evidence existed resulting in a reduction of retiree heaith benefits to SDPOA members (Id at
~ 11(b)) As a result of these and the other alleged breaches of the duty of care the SDPOA
seeks damages including the fees it paid to the JDTP law firm in the underlying litigation (Jd
at ~ 11(b))
The SDPOAs bare bones complaint omits several key chronological facts that are
dispositive of its claims against Petersen
(1) The McGuigan court entered judgment on the SDPOAs claims in December
2006
(2) The Aguirre court entered summary judgment in favor of the City defendants and
against the SDPOA in May 2007
(3) Petersen left the JDTP law firm in March 2008 and his attorney-client
relationship with the SDPOA terminated then
Indeed the fact that Petersen left the JDTP law firm in March 2008 is patently obvious
from an April 2008 order entered by the United States District Court Southern District of
California in Aaron et a v Aguirre et at (Aaron) Case No 06-CV -1451 a related health
benefits litigation matter filed by approximately 1800 SDPOA members In Aaron the District
Court entered an order in April 2008 requiring each of the approximately 1800 plaintiffs to sign
a substitution of attorney stating whether he or she was represented by Petersen and the Petersen
Law Firm or the JDTP law firm or someone else (RJN Exh 2)
Defendant Petersens Demurrer To Complaint
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In other words court records firmly establish that the SDPOAs cause ofact10n for legal
malpractice against Petersen accrued no later than March 2008 As of March 2008 the SDPOA
had alleged suffered actual harm as a result of Petersens malpractice and he was not longer
representing it Accordingly the one year statute for any claim the SDPOA had against Petersen
for legal malpractice arising from the McGuigan and Aguirre matters commenced to run in
March 2008 Because the SDPOA did not file this lawsuit until March 29 2010 its claim for
legal malpractice against Petersen is time barred by Section 3406
III
DEMURRER IS PROPER WHERE ACTION IS BARRED
BY STATUTE OF LIMITATIONS
The party against whom a complaint has been filed may object by demurrer as
provided in Section 43030 to the pleading on the grounds that [tJhe pleading does not
state facts sufficient to constitute a cause of action (Code Civ Proc sect 43010 subd (e))
When the plaintiffs action is barred by the statute of limitations a general demurrer (ie
the pleading does not state facts sufficient to constitute a cause of action) is proper (Saliter v
Pierce Bros lvfortuaries (1978) 81 CaLApp3d 292300 fn 2 Iverson Yoakum Papiano amp
Hatch v Berwald (1999) 76 CalApp4th 990 995)
A demurrer is also appropriate if a pleading does not state facts sufficient to constitute a
cause of action Code Civ Proc sect 430l0e) Bockrath v Aldrich Chemical Co (1999) 21
Ca14th 7183 Here the SDPOA cannot state facts to support the causation and damages
elements of its legal malpractice cause of action Although a court must on demurrer accept as
true properly pleaded facts a demurrer does not admit contentions or conclusions of law or fact
freeman v San Diego Ass n ofRealtors (l999) 77 CaLApp4th 71 185 n 11
Under Section 43030 a demurrer can also be based on matter subject to judicial notice
is properly based on any matter of which the court is required to or may take judicial notice
(Code Civ Proc sect 43030 subd (a)) Under Evidence Code section 452(d) the court can take
judicial notice of the court records of any court of record of the United States (Evid Code sect
Defendant Petersens Demurrer To Complaint
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452(d))4 When court records subject to judicial notice disclose an absolute defense to the action
or a deficiency in the complaint the matter can be adjudicated at by way of demurrer
(Bistawros v Greenberg (1987) 189 CalApp3d 189 192 [court took judicial notice of its own
files in sustaining demurrer on ground of another action pending between same parties on same
cause1 see also Frornrnhagen v Board ofSupervisors ofSanta Cruz County (1987) 197
Ca1App3d 1292 1299 [court took judicial notice of complaint in prior action] Britz Inc v
Dow Chern Co (1999) 73 CalAppAth 177 180 [in ruling on demurrer court could take judicial
notice of prior order approving good faith settlement under Code of Civil Procedure sect 8776])
Here defendant Petersen requests that this court take judicial notice pursuant to Evidence
Code section 452(d) of the court records including court orders in the underlying actions on
which the SDPOAs present legal malpractice claims are based namely San Diego Police
Officers Association v Aguirre et al USDC Case No 05-CV -1581 McGuigan v City ofSan
Diego San Diego County Case No OIC 949883 and the action by the SDPOAs members
Aaron et al v Aguirre et at (Aaron) USDC Case No 06-CV -1451
These court records establish that as of March 2008 the SDPOA had allegedly suffered
actual injury and its attorney-client relationship with Petersen terminated Accordingly as of
March 2008 the one year statute commenced to run The SDPOAs failure to file its lawsuit
against Petersen within one year of March 2008 means its claim against him is now time barred
IV
THE ENTIRE ACTION AGAINST PETERSEN IS BARRED
BY CODE OF CIVIL PROCEDURE SECTION 3406
A The One Year Statute of Limitations Set Forth In Section 3406 Applies To
The SDPOAs Claims
The SDPOAs claims against Petersen are barred by the one year statute of limitations set
forth in Section 3406 which is the statute of limitations for all actions against attorneys for
4 Evidence Code section 452 provides as follows Judicial notice may be taken ofthe following matters (~~J (d) Records of (1) any court of this state or (2) any court of record of the United States
Defendant Petersens Demurrer To Complaint
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alleged wrongful acts or omissions arising out of the rendition of professional services
(Crowley v Katleman (1994) 8 Ca14th 666681-682) Section 3406 states
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 ofthe wrongful act or omission whichever occurs first (Code Civ Proc sect 3406(a))
Where an attorney has been accused of wrongful conduct the courts recognize that
regardless of the labels attached to the pleadings allegations the gravamen of the complaint is
legal malpractice (Kracht v Perrin Gartland amp Doyle (1990) 219 CalApp3d 1019 1022-1023
(Kracht) [complaint for breach of statutory duty constructive fraud and ordinary negligence
treated as malpractice claim for purposes of upholding order sustaining demurrer without leave
to amend] Jackson v Rogers amp Wells (1989) 210 CaLApp3d 336346349 [fraud and breach of
contract theories where alleged misfeasance Were acts requiring professional judgment calls
treated as malpractice claims for assignability purposes]) California case law treats all actions
arising out of the wrongful acts or omissions of attorneys as falling under the umbrella of legal
malpractice (Pompilio v Kosmo Cho amp Brown (1995) 39 CalAppAth 1324 1329 [plaintiffs
breach of fiduciary duty cause of action for attorneys errors and omissions sounds in legal
malpractice] see also Levin v Graham amp James (1995) 37 CalAppAth 798 Thompson v
Halvonik (1995) 36 CalAppAth 657664 Jacoby v Schenkel (1995) 36 CalAppAth 1701
Radovich v Locke-Paddon (1995) 35 CalAppAth 946 966 Stoll v Superior Court (1992) 9
CalAppAth 1362 1368)
Put simply when the claim concerns an alleged injury arising by reason of an attorneys
professional negligence the claim is one for legal malpractice subject to the statute of limitations
set forth in Section 3406 (Kracht 219 CaLApp3d at pp 1022-1023) Here the thrust of the
SDPOAs claim is that the Defendants including Petersen negligently handled the underlying
litigation (Complaint ~20) The complaints allegations plainly establish that the SDPOA is
suing Defendants for alleged errors and omissions arising from the provision oflegal services
Defendant Petersens Demurrer To Complaint
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with respect to underlying litigation Thus the applicable statute of limitations is Section 3406
(Kracht 219 CalApp3d at pp 1022-1023)
B The SDPOA Suffered Actual Injury When The Underlying Trial Courts
Entered Judgment Against It In The Underlying Litigation Matters
The California Supreme Court has made it clear that [a]ctual injury occurs when the
client suffers any loss or injury legally cognizable as damages in a legal malpractice action based
on the asserted errors or omissions (Jordache Enterprises Inc v Brobeck Phleger and
Harrison (1998) 18 Cal4th 739 743 (Jordache)) The Jordache court determined that the loss
or diminution of a right or remedy constitutes injury or damage Neither uncertainty of amount
nor difficulty of proof renders that injury speculative or inchoate (fd at p 744) As explained
by the Supreme Court in determining actual injury the inquiry necessarily is more qualitative
than quantitative because the fact of damage rather than the amount is the critical factor (Id
at p 752)
In Jordache the plaintiff alleged that the defendant committed malpractice by failing to
advise the plaintiff to tender a complaint filed against it to its insurance carrier (fd at p 746)
As a result of the defendants omission significant time passed before the plaintiff tendered the
complaint to the insurer (Id at p 745) The insurance carrier argued that the plaintiffs late
tender relieved its obligation to provide benefits (Ibid) The plaintiff initiated litigation against
the insurer regarding the coverage issue and the viability of the insurers late tender defense
(Ibid) The plaintiff did not file its professional malpractice claim against the defendant until
after resolution of the coverage litigation (fd at p 746)
In evaluating when the actual injury occurred under Section 3406 the California
Supreme Court concluded that in addition to incurring legal fees to prosecute the coverage
dispute the defendants alleged omissions also gave the insurers an objectively viable defense
which consequently reduced those [insurance] claims settlement value (Id at p 743)
Because the insurers objection rendered the plaintiffs claims immediately less valuable than
they were prior to the assertion of such defense and because the defense arose as a result of the
plaintiffs counsels omission the plaintiff was actually injured within the meaning of Section
Defendant Petersens Demurrer To Complaint
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3406 at the time the insurers defense was asserted (ld at pp 743-744) It does not matter
whether a plaintiff is able to quantify the amount by which its claims were devalued at the time
such a defense accrued and was asserted because actual injury may well precede quantifiable
financial costs (Adams v Paul (1995) 11 CaL4th 583 591 fn 5)
Thus under Jordache the test for actual injury under section 3406 therefore is
whether the plaintiff has sustained any damages compensable in an action against an attorney
for a wrongful act or omission arising in the performance of professional services (Jordache
18 CaL4th at p 751)
With respect to the present case the SDPOA suffered actual injury in the underlying
litigation matters when the trial courts entered judgment against the SDPOA Thus it suffered
actual injury in the McGuigan matter in December 2006 and it suffered actual injury in the
Aguirre matter in May 2007
c The SDPOA Discovered The Alleged Injuries In December 2006 and May
2007
To constitute discovery as that term is used in Section 3406 a plaintiff need only be
apprised of the fact that someone has done a wrong - plaintiff need not have a legal theory or
knowledge that he has a cause of action against an attorney at that point (McGee v Weinberg
(1979) 97 CaLApp3d 798 (lvfcGee) Worton v Worton (1991) 234 CaLApp3d 1368)
Discovery for purposes of triggering the commencement of the limitations period under Section
3406 occurs when the client discovered or should have discovered the facts giving rise to a
cause of action for legal malpractice As noted by the McGee court The test is whether the
plaintiff has information of circumstances sufficient to put a reasonable person on inquiry or has
the opportunity to obtain knowledge from sources open to his or her investigation (McGee 97
CaLApp3d at p 798)
Here the SDPOA knew it had lost the McGuigan case in December 2006 and the
Aguirre case in May 2007 The SDPOA also knew that its attorney client relationship with
Petersen terminated in March 2008 when he left the JDTP law firm
Defendant Petersens Demurrer To Complaint
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Thus as of March 2008 the SDPOA had information sufficient to put a reasonable
person on inquiry The possibility that the SDPOA may not have understood or that their
attorneys at JDTP may not have told them of all of the significance of Petersens departure from
the JDTP law firm (eg the commencement of the statute as to any claims against Petersen) does
not alter the fact that the SDPOA discovered (or should have discovered) the facts which gave
rise to their legal malpractice claims against Petersen no later than March 3 2008
D Plaintiffs Suffered Actual Injury More Than One Year Before Filing Their
Complaint And The Statute of Limitations Has Not Been Tolled
Under Code of Civil Procedure section 3406 an action must be commenced one year
from discovery unless tolled because among other things the attorney continues to represent the
plaintiff regarding the specific subject matter in which the alleged act or omission occurred
(Code Civ Proc sect 3406) In this case there is no dispute that Petersens representation of the
SDPOA terminated in March 2008 when he left the JDTP law firm and ceased his representation
of the SDPOA As such there is no tolling ofthe statute in this situation for continuous
representation The present situation is somewhat analogous to Beal Bank SSB v Arter amp
Hadden LLP (2007) 42 Ca14th 503 (Beal Bank)
Beal Bank acquired loans that contained default provisions and retained the AampH law
firm to handle the collection efforts The attorney handling the matter left the AampH law firm and
the attorneys new firm took over Beal Banks representation When the collections efforts were
unsuccessful Beal Bank sued the AampH law firm and the new law firm The AampH law firm
demurred to the malpractice complaint on the theory that when the lawyer left and took the client
with him there was no need to continue to toll the statute of limitations against the AampH law
firm due to continued representation The Supreme Court agreed and held that once the case
leaves the firm the representation of the prior firm ceases and the statute of limitations clock
begins to tick against the prior firm (Beal Bank 42 Ca14th at pp 512-514)
The Supreme Court recognized that this situation may require malpractice plaintiffs to
move swiftly and perhaps act in filing a lawsuit before the underlying action was resolved but
the Supreme Court did not let this concern affect its reasoning regarding when continuous
Defendant Petersens Demurrer To Complaint
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representation tolling ceases Here the clock for the SDPOAs malpractice claims against
Petersen commenced to tick in March 2008 when he left the JDTP law firm The SDPOA did
not file its action against Petersen within one year of March 2008 and therefore its legal
malpractice claim against him is time barred
The SDPOA may argue that because it appealed from the District Court and Superior
Courts orders in the underlying Aguirre and ~McGuigan litigation matters the statute of
limitations did not commence to run until the decisions on those appeals were rendered This
argument lacks merit and was rejected by the Jordache court when it determined that a causal
nexus between the injury and the malpractice does not need to be confirmed by settlement or
adjudication (Jordache 18 Cal4th at p 744) The Supreme Court reasoned that an existing
injury is not contingent or speculative simply because future events may effect its permanency or
the amount of monetary damages eventually incurred (fd at p 754)
Thus even if the SDPOA did not know whether future events (ie their appeals) may
effect the permanency of their injury (eg ruling that retiree benefits were not vested-
Complaint at 20) they still had suffered actual injury when the District Court and Superior Court
ruled against them and any tolling of the statute of limitations ended when Petersen departed the
JDTP law firm and his attorney-client relationship with the SDPOA terminated The fact that
appeals were still pending when he departed the JDTP law firm is of no consequence because in
determining actual injury the inquiry necessarily is more qualitative than quantitative because
the fact of damage rather than the amount is the critical factor (fd at p 752) The limitations
period is not tolled even ifthe injury is in some way remediable and appreciable actual injury
does not depend on the plaintiffs ability to attribute a quantifiable sum of money to
consequential damages (Jordache 18 Ca14th at p 750)
Here the underlying court records show Petersen no longer represented the SDPOA after
March 2008 The SDPOAs complaint offers no facts that would toll Section 3406 after the one
year limitations period commenced in March 2008 Because the SDPOA did not file this action
until March 29 2010 its claims against Petersen are time barred and this demurrer should be
sustained without leave to amend as to Petersen
-14shy--------- ---shy
Defendant Petersens Demurrer To Complaint
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OC46299lvl
V
PETERSENS DEMURRER SHOULD ALSO BE SUSTAINED BECAUSE THE SDPOA
HAS NOT PLEADED AND CANNOT PLEAD FACTS IN SUPPORT OF THE
CAUSATION AND DAMAGES ELEMENTS OF A CAUSES OF ACTION FOR LEGAL
MALPRACTICE
A To Prevail On A Claim For Legal Malpractice the Plaintiff Must Plead and
Prove the Defendant Caused the Plaintiffs Harm
The elements of a cause of action for professional negligence are (l) the duty ofthe
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 See ShopofJ amp Cavallo LLP v Hyon (2008) 167 CalApp4th 1489
1509 A claim for breach of contract also requires the plaintiff to prove that the defendants
breach caused the plaintiff to suffer damages See St Paul Fire amp Marin Ins Co v American
Dynasty Surplus Lines Ins Co (2002) 101 CaJApp4th 1038 1060 (An essential element of a
claim for breach of contract are damages resulting from the breach Causation ofdamages in
contract cases requires that the damages be proximately caused by the defendants breach)
The same causation test applies to both professional negligence and breach of contract claims
See Vasiion Therapeutics Inc v Foley amp Lardner LLP (SDCai 2008) 2008 WL 5147201 3 5
It is well settled that if the attorneys negligent conduct does not cause damage it
generates no cause of the action See ShopojJ 167 CaJApp4th at 1509 To show damages
proximately caused by the breach the pJaintiffmust demonstrate that but for the attorneys
malpractice it is more likely than not the plaintiff would have obtained a more favorable result
(d) See also Viner 30 Ca14th at 1240-43 Unless a party suffers damage as a consequence of
his attorneys negligence he cannot establish a cause of action for malpractice Breach of duty
causing only speculative harm is insufficient to create such a cause of action [D]amages may
5 SDPOA labels its claim as one for attorney malpractice and thus it is not clear if it intends to pursue a negligence theory a breach of contract theory or both See Complaint p 6 Regardless of whether the SDPOA pursues a tort or contract claim the same causation standard applies
-15shy----~---- ~----~~-~--~~~---------~------
Defendant Petersens Demurrer To Complaint
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OC462991 v J
not be based upon sheer speculation or surmise and the mere possibility or even probability that
damage will result from wrongful conduct does not render it actionable Thompson v Halvonik
(1995) 36 CalAppAth 657 661-62
As the California Supreme Court made clear in the seminal Viner case the crucial
causation inquiry is what would have happened if the defendant attorney had not been negligent
This is so because the very idea of causation necessarily involves comparing historical events to
a hypothetical alternative Viner 30 CaL4th at 1242 (emphasis in original) Although the label
of the test may differ from case to case the rule underlying the test is always the same to
prevail on a malpractice claim the plaintiff must demonstrate that the attorneys negligence
caused the plaintiffs harm See Viner at 1240 n 4 (noting that the causation inquiry is also
sometimes described as the case within the case or the trial within the trial)
B Causation in a Legal Malpractice Case is Appropriately Treated as an Issue
of Law Rather Than Fact When the Underlying Litigation Was Decided
Based on a Question of Law
The element of causation in a legal malpractice case is treated as an issue of law which
the underlying litigation was decided on a question of law As one California court has
explained no jury can reach its own judgment on the proper outcome of an earlier case that
hinged on an issue of law Piscitelli v Friedenberg (2001) 87 CalAppAh 953 974 quoting
with approval from Chocktoot v Smith (Ore 1977) 571 P2d 1255 1258 see also id at 971
(explaining that [i]n legal malpractice cases whether a court or jury decides the underlying
case-within-a-case [turns on] whether the issues are predominantly questions of fact or law)
C The SDPOA Cannot Establish That Had Defendants Made a Different
Argument the Plaintiff Would Have Obtained a More Favorable Outcome
The SDPOAs causation allegation against Petersen is not merely tenuous it is nonshy
existent First the SDPOA alleges that it was adversely affected before the lawsuit was filed and
Defendants were retained when the City implemented its last bet final offer at the bargaining
table which had the effect of reducing retirement health benefit As a matter of law Petersen is
not the cause of the Citys bargaining position Moreover the underlying litigation on which the
Defendant Petersens Demurrer To Complaint
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OCI46299I v I
SDPOAs legal malpractice claims are based were part of the SDPOAs response to the Citys
reduction of the health benefits
Second Plaintiff argues that because the Defendants did not put on evidence of some
unidentified and undisputed facts or make unidentifled arguments or cite unidentified precedent
the trial courts in those matters wrongly decided issues concerning whether the SDPOAs
members retirement health benefits were vested
Whether retirement health benefits were vested under the federal law at issue in the
underlying litigation was a contested issue of law the opposing parties in the underlying action
were represented by very able counsel (the law firms of Latham amp Watkins and Seltzer Caplan
McMahon Vitek) and the legal issues were before and decided by judges after extensive
litigation briefing and argument After considering the law those judges unanimously ruled that
as a matter of law the benefits were not vested The SDPOA cannot possibly satisfy its burden
of proving by a preponderance of the evidence that this legal result was the fault of the
defendants ie that had the defendants only done something different it is more likely than not
that the questions of federal law in the underlying litigation would have been resolved
differently See Shopof[ 167 CalApp4th at 1509 Viner 30 Ca14th at 1240-43 Stated
differently whether the SDPOAs complaint is pure speculation - which it is - is a question of
law for this Court in this demurrer
In addition the same fatal flaw arises because the SDPOA through their present attorney
dismissed its state law claims The SDPOAs voluntary dismissal of its state law claims
precludes it from making the current legal malpractice claim By dismissing those claims the
SDPOA made it impossible to demonstrate but for causation in this case If the SDPOA
suffered any harm it has been on account of its own voluntary actions that have nothing to do
with Petersen and the claims alleged against him here
Lastly it is frivolous for Plaintiff to contend that the Defendants should bear
responsibility for the Citys decision to amend its Municipal Code and impose an $8800 cap on
annual retirement health benefits These Defendants have no control over the City and are not a
-17shyDefendant Petersens Demurrer To Complaint
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1 cause of the Citys own financial predicament and did not cause the City to decide to reduce the
2 SDPOAs members benefits before the underlying lawsuits had even been filed
3 VI
4 CONCLUSION
As discussed above there are at least two reasons why this demurrer should be sustained
6 without leave to amend First the SDPOAs complaint and court records from the underlying
7 litigation firmly establish that the SDPOAs claim against defendant Petersen is barred by the
8 one year statute of limitations applicable to legal malpractice actions Second the SDPOAs
9 allegations also firmly establish that Petersen did not cause the SDPOA any damage as a matter
oflaw
11 For these reasons defendant Petersens demurrer to Plaintiffs complaint should be
12 sustained Moreover because no amendment will change this result this demurrer should be
13 sustained without leave to amend
14
DATED May 142010 SEDGWICK DETERT MORAN amp ARNOLD LLP
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By1~~tra18 Gregory H Halliday
Frederick B Hayes 19 Attorneys for Defendant
GREGORY GLENN PETERSEN
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OC46299 I v I 8shyDefendant Petersens Demurrer To Complaint
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PROOF OF SERVICE
San Diego Police Officers Association v Jackson Deivfarco Tidus amp Peckenpaugh et al San Diego Superior Court Case No 37-2010-00088794-CU-PN-CTL
I am a resident of the State of California over the age of eighteen years and not a party to the within action My business address is Sedgwick Detert Moran amp Arnold LLP 3 Park Plaza 17th Floor Irvine California 92614middot8540 On May 142010 I served the within document(s)
DEFENDANT GREGORY GLENN PETERSENS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS COMPLAINT MEMORANDUM OF POINTS AND
AUTHORITIES
o FACSIMILEmiddot by transmitting via facsimile the document(s) listed above to the fax number(s) set forth on the attached Telecommunications Cover Page(s) on this date before 500 pm
MAILmiddot by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid in the United States mail at Irvine California addressed as set forth below
PERSONAL SERVICE - by personally delivering the document(s) listed above to the persltm(s) at the addressees) set forth below
o OVERNIGHT COURIER - by placing the document(s) listed above in a sealed envelope with shipping prepaid and depositing in a collection box for next day delivery to the person(s) at the addressees) set forth below via OverNite Express
SEE ATTACHED LIST
I am readily familiar with the finns practice of collection and processing correspondence for mailing Under that practice it would be deposited with the US Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business I am aware that on motion of the party served service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit
I declare under penalty of perjury under the laws of the State of California that the above is true and correct Executed on May 142010 at Irvine California
OCI463303v I
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San Diego Police Officers Association v Jackson Ddvfarco Tidus amp Peckenpaugh et ai SDSC Case No 37-2010-00088794-CU-PN-CTL
2 ProofofService shy Page 2
3
4 I Michael A Conger Esq AhUUltys for Plaintiff Law Office of Michael A Conger San Diego Police Officers Association 16236 San Dieguito Road Suite 4-14 PO Box 9374 (858) 759-0200 - telephone
6 Rancho Santa Fe CA 92067 (858) 759-1906 facsimile congermike(aJaoLcom
7 Gregory A Long Esq Attorneys for Defendants
8 Sheppard Mullin Richter amp Hampton LLP Jackson DeMarco Tidus amp Peckenpaugh 333 S Hope Street 48 th Floor
9 Los Angeles CA 90071 (213) 617-5443 phone (213) 620-1398 - facsimile
Iglongsheppardmullincom
11 Matthew W Holder Esq
12 Sheppard Mullin Richter amp HamptonLLP 12275 EI Camino Real Suite 200
13 San Diego CA 92130-2006
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OC463303v I
Attorneys for Defendants Jackson DeMarco Tidus amp Peckenpaugh
(858) 720-8900 - phone (858) 509-3691 facsimile mholdersheppardmullincom
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OC46299I v I
is made on the grounds that the complaint fails to state facts sufficient to constitute a cause of
action Petersen requests that Plaintiff be denied leave to amend
This demurrer is based upon this Notice of Demurrer and Demurrer the attached
Memorandum of Points and Authorities the Request for Judicial Notice and exhibits all other
pleadings papers records and documentary materials on file or deemed to be on file those other
matters of which this Court mayor must take judicial notice the arguments of counsel at the
hearing on this Demurrer and upon such other evidence and materials as this Court may
consider
DATED May 142010 SEDGWICK DETERT MORAN amp ARNOL~P
BYmiddotG~cf~ltfsmiddot ~ Imiddot Frederick B Hayes Attorneys for Defendant GREGORY GLENN PETERSEN
Defendant Petersens Demurrer To Complaint
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OC46299I vI
DEMURRER TO COMPLAINT
Defendant Gregory Glenn Petersen (Petersen) demurs to the complaint of plaintiff San
Diego Police Officers Association (the SDPOA) on the following grounds
1 The complaint fails to state facts sufficient to a cause of action See Code Civ
Proc sect 431l0(e)
DEMURRER TO FIRST CAUSE OF ACTION
Defendant Petersen demurs to the SDPOAs first cause of action labeled Attorney
Malpractice on the following grounds
1 The complaint fails to state facts sufficient to a cause of action Code Civ
Proc sect 43110(e)
WHEREFORE defendant Gregory Glenn Petersen prays that his Demurrer to the
SDPOAs complaint be sustained without leave to amend and that the court grant such other and
further relief as it deems just and appropriate
DATED May 142010 SEDGWICK DETERT MORAN amp ARNOL LLP
BY1Nd~ I-J Gregory H Halliday Frederick B Hayes Attorneys for Defendant GREGORY GLENN PETERSEN
Defendant Petersens Demurrer To Complaint
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OC462991vi
MEMORANDUM OF POINTS AND AUTHORITIES
I
INTRODUCTION AND SUMMARY OF ARGUMENT
This legal malpractice lawsuit by Plaintiff San Diego Police Officers Association (the
SDPOA) arises from a protracted fight between it and the City of San Diego (the City) over
retirement benefits for the CityS police officers Plaintiff alleges that the Jackson DeMarco
Tidus amp Peckenpaugh law firm (JDTP) and two attorneys including defendant Gregory Glenn
Petersen (Petersen) committed legal malpractice while representing the SDPOA in several
underlying litigation matters against the City namely SDPOA v Aguirre et al (Aguirre) and
McGuigan v City ofSan Diego et al (McGuigan) (See Compiaint ~ 9)1middot
Defendant Petersen demurs to SDPOAs legal malpractice complaint on the grounds that
it is barred by Code of Civil Procedure section 3406 the one year statute of limitations
applicable to a cause of action for legal malpractice2
In the underlying McGuigan case the trial court granted judgment in favor of the City
defendants in December 2006 In the underlying Aguirre case the trial court granted summary
judgment in favor of the City defendants and against the SDPOA in May 2007 Although both
matters were appealed Petersens attorney-client relationship with the SDPOA ended in March
2008 when Petersen left the JDTP law firm The SDPOAs complaint offers no facts that would
toll Section 3406 as against Petersen once he left JDTP Beal Bank SSB v Arter amp Hadden
LLP (2007) 42 CaL4th 503 Because the present legal malpractice lawsuit was not filed until
I The cases identified in paragraph 9 of the SDPOAs instant complaint are San Diego Police Officers Association v Aguirre et al United States District Court Southern District of California Case No 05-CV-1581 and McGuigan v City of San Diego Superior Court of San Diego County Case No GIC949883 In the McGuigan case the SDPOA was an objector in the trial court proceedings
2 All further statutory references are to the Code of Civil Procedure unless stated otherwise
The SDPOA must concede that its attorney-client relationship with Petersen terminated in March 2008 when Petersen left the JDTP law firm In an unpublished opinion arising from the McGuigan case the appellate court noted that as of April 2008 the SDPOAs original lead attorney Gregory Peterson [sic] recently left the Jackson DeMarco firm and temporarily sought to take the case with him but at this time counsel for [the SDPOA] remains the Jackson DeMarco firm See McGuigan v City ofSan Diego 2008 WL 4358551 attached as Exh 1 to Petersens Request for Judicial Notice See also Petersens Request for Judicial Notice at Exh 2 [April 2008 order in Aaron]
-4shyDefendant Petersens Demurrer To Complaint
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OC46299 I y I
March 2010 more than two years after Petersens attorney-client relationship with the SDPOA
ended it is time barred by Section 3406 Because no amendment can change this result
Petersens demurrer should be sustained without leave to amend
In addition to being time-barred the SDPOAs legal malpractice action also fails as a
matter of law because the SDPOA cannot meet the causation and damages elements of its
malpractice claim In particular the SDPOA cannot establish that but for the alleged legal
malpractice it is more likely than not that the SDPOA would have achieved a more favorable
outcome Viner v Sweet (2003) 30 Ca14th 1232 1240-1243 (Viner) The purpose of this
requirement which has been in use for more than 120 years is to safeguard against speculative
and conjectural claims Viner 30 CaL4th at p 1241 citing Matteo Forge Inc v Arthur Young
amp Co (1997) 52 CalAppAth 820 832-834 This requirement serves the essential purpose of
ensuring that damages awarded for an attorneys malpractice actually -were caused by the
malpractice Matteo Forge Inc v Arthur Young amp Co supra 52 CalAppAth at p 834 In this
case the SDPOAs failure to allege facts showing that but for the alleged negligence a
different result would have been obtained is another reason why the SDPOAs complaint fails to
state sufficient facts to constitute a cause of action against Petersen
In the underlying lawsuits the SDPOA argued that retirement health benefits were vested
and therefore the City could not unilaterally modify those benefits In this legal malpractice
lawsuit the SDPOA alleges that the defendant attorneys did a poor job of presenting the vested
retirement benefits issue to the courts The SDPOA further alleges that the defendant attorneys
malpractice caused the courts in the underlying litigation matters to rule against the SDPOA in
those cases In making these allegations the SDPOA does not identify a single negligent act or
omission and the SDPOAs silence on this point is telling
The fatal defect inherent in the SDPOAs present action is that it cannot plead or
establish that the defendant attorneys caused the SDPOA any harm In its complaint the
SDPOA speculates that it could have obtained a more favorable outcome had the defendant
attorneys merely done some unspecified act or presented some unidentified argument Whether
the retirement health benefits were vested under federal law is a legal question The SDPOAs
Defendant Petersens Demurrer To Complaint
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OC462991v 1
allegations fail to even hint at what fact or legal precedent or argument should have been
presented to the courts in the underlying actions to causes them to reach a different conclusion as
to whether under federal law the SDPOAs members retirement health benefits were vested
The SDPOAs inability to prove causation is also the result of the SDPOAs ovvD acts
Although the federal law claims brought by the SDPOA in the underlying litigation were
disposed of on their merits the state law causes of action were dismissed without prejudice and
subsequently the SDPOA filed a state court action SDPOA v Aguirre et aI Superior Court of
San Diego County Case No GIC 841845 After filing this state court lawsuit the SDPOA
dismissed it on December 9 2009 through its attorney Michael Conger who is also the
SDPOAs attorney of record in the present legal malpractice lawsuit Thus state law remedies
which had they been successfully prosecuted would have obviated any claim of damage by the
SDPOA were voluntarily relinquished by the SDPOA when it dismissed its state court lawsuit
Stated otherwise because the SDPOA voluntarily terminated its lawsuit asserting the
state law claims regarding the vesting of the retirement health benefits the SDPOA is now
precluded from asserting any act or omission by the defendants in the present matter caused it
any injury Because the SDPOA chose to dismiss its state claims their eventual outcome is
necessarily in the realm of speculation and conjecture and the SDPOAs present claim fails
Finally the SDPOA cannot seriously assert that it knows what motivated the City or that
the City would not have taken other steps to reduce its exposure for pay andor retirement
benefits if only some fact had been presented or some argument made As this court wells
knows as a result of pension liabilities the City was facing a deficit that exceeded one billion
dollars Simply put the SDPOA cannot show that but for the defendants alleged negligence
it is more likely than not that the courts in the underlying litigation matters would have reached
different conclusions or that these court decisions caused the City to reduce the compensation to
the SDPOAs members when the City had already stated before the underlying litigation
matters were filed that it intended to do so The SDPOA lawsuit fails as a matter of law and
should be dismissed
Defendant Petersens Demurrer To Complaint
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OC46299]vj
II
STATEMENT OF FACTS
On March 29 2010 the SDPOA filed its present legal malpractice lawsuit against the
JDTP law firm and two attorneys - Petersen and Mohamed Alim Ahmad Malik - asserting a
single cause of action labeled Attorney Malpractice The SDPOA alleges the defendants
represented it in underlying litigation against the City identified as SDPOA v Aguirre et al and
McGuigan v City oSan Diego et al (See Complaint ~ 9) The SDPOAs complaint alleges
nine generally described breaches of the duty of care such as the failure to present sufficient
evidence to prevail on the retiree health claim in SDPOA v Aguirre et al even though such
evidence existed resulting in a reduction of retiree heaith benefits to SDPOA members (Id at
~ 11(b)) As a result of these and the other alleged breaches of the duty of care the SDPOA
seeks damages including the fees it paid to the JDTP law firm in the underlying litigation (Jd
at ~ 11(b))
The SDPOAs bare bones complaint omits several key chronological facts that are
dispositive of its claims against Petersen
(1) The McGuigan court entered judgment on the SDPOAs claims in December
2006
(2) The Aguirre court entered summary judgment in favor of the City defendants and
against the SDPOA in May 2007
(3) Petersen left the JDTP law firm in March 2008 and his attorney-client
relationship with the SDPOA terminated then
Indeed the fact that Petersen left the JDTP law firm in March 2008 is patently obvious
from an April 2008 order entered by the United States District Court Southern District of
California in Aaron et a v Aguirre et at (Aaron) Case No 06-CV -1451 a related health
benefits litigation matter filed by approximately 1800 SDPOA members In Aaron the District
Court entered an order in April 2008 requiring each of the approximately 1800 plaintiffs to sign
a substitution of attorney stating whether he or she was represented by Petersen and the Petersen
Law Firm or the JDTP law firm or someone else (RJN Exh 2)
Defendant Petersens Demurrer To Complaint
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OC4 62991 v I
In other words court records firmly establish that the SDPOAs cause ofact10n for legal
malpractice against Petersen accrued no later than March 2008 As of March 2008 the SDPOA
had alleged suffered actual harm as a result of Petersens malpractice and he was not longer
representing it Accordingly the one year statute for any claim the SDPOA had against Petersen
for legal malpractice arising from the McGuigan and Aguirre matters commenced to run in
March 2008 Because the SDPOA did not file this lawsuit until March 29 2010 its claim for
legal malpractice against Petersen is time barred by Section 3406
III
DEMURRER IS PROPER WHERE ACTION IS BARRED
BY STATUTE OF LIMITATIONS
The party against whom a complaint has been filed may object by demurrer as
provided in Section 43030 to the pleading on the grounds that [tJhe pleading does not
state facts sufficient to constitute a cause of action (Code Civ Proc sect 43010 subd (e))
When the plaintiffs action is barred by the statute of limitations a general demurrer (ie
the pleading does not state facts sufficient to constitute a cause of action) is proper (Saliter v
Pierce Bros lvfortuaries (1978) 81 CaLApp3d 292300 fn 2 Iverson Yoakum Papiano amp
Hatch v Berwald (1999) 76 CalApp4th 990 995)
A demurrer is also appropriate if a pleading does not state facts sufficient to constitute a
cause of action Code Civ Proc sect 430l0e) Bockrath v Aldrich Chemical Co (1999) 21
Ca14th 7183 Here the SDPOA cannot state facts to support the causation and damages
elements of its legal malpractice cause of action Although a court must on demurrer accept as
true properly pleaded facts a demurrer does not admit contentions or conclusions of law or fact
freeman v San Diego Ass n ofRealtors (l999) 77 CaLApp4th 71 185 n 11
Under Section 43030 a demurrer can also be based on matter subject to judicial notice
is properly based on any matter of which the court is required to or may take judicial notice
(Code Civ Proc sect 43030 subd (a)) Under Evidence Code section 452(d) the court can take
judicial notice of the court records of any court of record of the United States (Evid Code sect
Defendant Petersens Demurrer To Complaint
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OC46299 I v I
452(d))4 When court records subject to judicial notice disclose an absolute defense to the action
or a deficiency in the complaint the matter can be adjudicated at by way of demurrer
(Bistawros v Greenberg (1987) 189 CalApp3d 189 192 [court took judicial notice of its own
files in sustaining demurrer on ground of another action pending between same parties on same
cause1 see also Frornrnhagen v Board ofSupervisors ofSanta Cruz County (1987) 197
Ca1App3d 1292 1299 [court took judicial notice of complaint in prior action] Britz Inc v
Dow Chern Co (1999) 73 CalAppAth 177 180 [in ruling on demurrer court could take judicial
notice of prior order approving good faith settlement under Code of Civil Procedure sect 8776])
Here defendant Petersen requests that this court take judicial notice pursuant to Evidence
Code section 452(d) of the court records including court orders in the underlying actions on
which the SDPOAs present legal malpractice claims are based namely San Diego Police
Officers Association v Aguirre et al USDC Case No 05-CV -1581 McGuigan v City ofSan
Diego San Diego County Case No OIC 949883 and the action by the SDPOAs members
Aaron et al v Aguirre et at (Aaron) USDC Case No 06-CV -1451
These court records establish that as of March 2008 the SDPOA had allegedly suffered
actual injury and its attorney-client relationship with Petersen terminated Accordingly as of
March 2008 the one year statute commenced to run The SDPOAs failure to file its lawsuit
against Petersen within one year of March 2008 means its claim against him is now time barred
IV
THE ENTIRE ACTION AGAINST PETERSEN IS BARRED
BY CODE OF CIVIL PROCEDURE SECTION 3406
A The One Year Statute of Limitations Set Forth In Section 3406 Applies To
The SDPOAs Claims
The SDPOAs claims against Petersen are barred by the one year statute of limitations set
forth in Section 3406 which is the statute of limitations for all actions against attorneys for
4 Evidence Code section 452 provides as follows Judicial notice may be taken ofthe following matters (~~J (d) Records of (1) any court of this state or (2) any court of record of the United States
Defendant Petersens Demurrer To Complaint
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0CI462991vl
alleged wrongful acts or omissions arising out of the rendition of professional services
(Crowley v Katleman (1994) 8 Ca14th 666681-682) Section 3406 states
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 ofthe wrongful act or omission whichever occurs first (Code Civ Proc sect 3406(a))
Where an attorney has been accused of wrongful conduct the courts recognize that
regardless of the labels attached to the pleadings allegations the gravamen of the complaint is
legal malpractice (Kracht v Perrin Gartland amp Doyle (1990) 219 CalApp3d 1019 1022-1023
(Kracht) [complaint for breach of statutory duty constructive fraud and ordinary negligence
treated as malpractice claim for purposes of upholding order sustaining demurrer without leave
to amend] Jackson v Rogers amp Wells (1989) 210 CaLApp3d 336346349 [fraud and breach of
contract theories where alleged misfeasance Were acts requiring professional judgment calls
treated as malpractice claims for assignability purposes]) California case law treats all actions
arising out of the wrongful acts or omissions of attorneys as falling under the umbrella of legal
malpractice (Pompilio v Kosmo Cho amp Brown (1995) 39 CalAppAth 1324 1329 [plaintiffs
breach of fiduciary duty cause of action for attorneys errors and omissions sounds in legal
malpractice] see also Levin v Graham amp James (1995) 37 CalAppAth 798 Thompson v
Halvonik (1995) 36 CalAppAth 657664 Jacoby v Schenkel (1995) 36 CalAppAth 1701
Radovich v Locke-Paddon (1995) 35 CalAppAth 946 966 Stoll v Superior Court (1992) 9
CalAppAth 1362 1368)
Put simply when the claim concerns an alleged injury arising by reason of an attorneys
professional negligence the claim is one for legal malpractice subject to the statute of limitations
set forth in Section 3406 (Kracht 219 CaLApp3d at pp 1022-1023) Here the thrust of the
SDPOAs claim is that the Defendants including Petersen negligently handled the underlying
litigation (Complaint ~20) The complaints allegations plainly establish that the SDPOA is
suing Defendants for alleged errors and omissions arising from the provision oflegal services
Defendant Petersens Demurrer To Complaint
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OC46299 IvI
with respect to underlying litigation Thus the applicable statute of limitations is Section 3406
(Kracht 219 CalApp3d at pp 1022-1023)
B The SDPOA Suffered Actual Injury When The Underlying Trial Courts
Entered Judgment Against It In The Underlying Litigation Matters
The California Supreme Court has made it clear that [a]ctual injury occurs when the
client suffers any loss or injury legally cognizable as damages in a legal malpractice action based
on the asserted errors or omissions (Jordache Enterprises Inc v Brobeck Phleger and
Harrison (1998) 18 Cal4th 739 743 (Jordache)) The Jordache court determined that the loss
or diminution of a right or remedy constitutes injury or damage Neither uncertainty of amount
nor difficulty of proof renders that injury speculative or inchoate (fd at p 744) As explained
by the Supreme Court in determining actual injury the inquiry necessarily is more qualitative
than quantitative because the fact of damage rather than the amount is the critical factor (Id
at p 752)
In Jordache the plaintiff alleged that the defendant committed malpractice by failing to
advise the plaintiff to tender a complaint filed against it to its insurance carrier (fd at p 746)
As a result of the defendants omission significant time passed before the plaintiff tendered the
complaint to the insurer (Id at p 745) The insurance carrier argued that the plaintiffs late
tender relieved its obligation to provide benefits (Ibid) The plaintiff initiated litigation against
the insurer regarding the coverage issue and the viability of the insurers late tender defense
(Ibid) The plaintiff did not file its professional malpractice claim against the defendant until
after resolution of the coverage litigation (fd at p 746)
In evaluating when the actual injury occurred under Section 3406 the California
Supreme Court concluded that in addition to incurring legal fees to prosecute the coverage
dispute the defendants alleged omissions also gave the insurers an objectively viable defense
which consequently reduced those [insurance] claims settlement value (Id at p 743)
Because the insurers objection rendered the plaintiffs claims immediately less valuable than
they were prior to the assertion of such defense and because the defense arose as a result of the
plaintiffs counsels omission the plaintiff was actually injured within the meaning of Section
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3406 at the time the insurers defense was asserted (ld at pp 743-744) It does not matter
whether a plaintiff is able to quantify the amount by which its claims were devalued at the time
such a defense accrued and was asserted because actual injury may well precede quantifiable
financial costs (Adams v Paul (1995) 11 CaL4th 583 591 fn 5)
Thus under Jordache the test for actual injury under section 3406 therefore is
whether the plaintiff has sustained any damages compensable in an action against an attorney
for a wrongful act or omission arising in the performance of professional services (Jordache
18 CaL4th at p 751)
With respect to the present case the SDPOA suffered actual injury in the underlying
litigation matters when the trial courts entered judgment against the SDPOA Thus it suffered
actual injury in the McGuigan matter in December 2006 and it suffered actual injury in the
Aguirre matter in May 2007
c The SDPOA Discovered The Alleged Injuries In December 2006 and May
2007
To constitute discovery as that term is used in Section 3406 a plaintiff need only be
apprised of the fact that someone has done a wrong - plaintiff need not have a legal theory or
knowledge that he has a cause of action against an attorney at that point (McGee v Weinberg
(1979) 97 CaLApp3d 798 (lvfcGee) Worton v Worton (1991) 234 CaLApp3d 1368)
Discovery for purposes of triggering the commencement of the limitations period under Section
3406 occurs when the client discovered or should have discovered the facts giving rise to a
cause of action for legal malpractice As noted by the McGee court The test is whether the
plaintiff has information of circumstances sufficient to put a reasonable person on inquiry or has
the opportunity to obtain knowledge from sources open to his or her investigation (McGee 97
CaLApp3d at p 798)
Here the SDPOA knew it had lost the McGuigan case in December 2006 and the
Aguirre case in May 2007 The SDPOA also knew that its attorney client relationship with
Petersen terminated in March 2008 when he left the JDTP law firm
Defendant Petersens Demurrer To Complaint
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Thus as of March 2008 the SDPOA had information sufficient to put a reasonable
person on inquiry The possibility that the SDPOA may not have understood or that their
attorneys at JDTP may not have told them of all of the significance of Petersens departure from
the JDTP law firm (eg the commencement of the statute as to any claims against Petersen) does
not alter the fact that the SDPOA discovered (or should have discovered) the facts which gave
rise to their legal malpractice claims against Petersen no later than March 3 2008
D Plaintiffs Suffered Actual Injury More Than One Year Before Filing Their
Complaint And The Statute of Limitations Has Not Been Tolled
Under Code of Civil Procedure section 3406 an action must be commenced one year
from discovery unless tolled because among other things the attorney continues to represent the
plaintiff regarding the specific subject matter in which the alleged act or omission occurred
(Code Civ Proc sect 3406) In this case there is no dispute that Petersens representation of the
SDPOA terminated in March 2008 when he left the JDTP law firm and ceased his representation
of the SDPOA As such there is no tolling ofthe statute in this situation for continuous
representation The present situation is somewhat analogous to Beal Bank SSB v Arter amp
Hadden LLP (2007) 42 Ca14th 503 (Beal Bank)
Beal Bank acquired loans that contained default provisions and retained the AampH law
firm to handle the collection efforts The attorney handling the matter left the AampH law firm and
the attorneys new firm took over Beal Banks representation When the collections efforts were
unsuccessful Beal Bank sued the AampH law firm and the new law firm The AampH law firm
demurred to the malpractice complaint on the theory that when the lawyer left and took the client
with him there was no need to continue to toll the statute of limitations against the AampH law
firm due to continued representation The Supreme Court agreed and held that once the case
leaves the firm the representation of the prior firm ceases and the statute of limitations clock
begins to tick against the prior firm (Beal Bank 42 Ca14th at pp 512-514)
The Supreme Court recognized that this situation may require malpractice plaintiffs to
move swiftly and perhaps act in filing a lawsuit before the underlying action was resolved but
the Supreme Court did not let this concern affect its reasoning regarding when continuous
Defendant Petersens Demurrer To Complaint
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OC462991vl
representation tolling ceases Here the clock for the SDPOAs malpractice claims against
Petersen commenced to tick in March 2008 when he left the JDTP law firm The SDPOA did
not file its action against Petersen within one year of March 2008 and therefore its legal
malpractice claim against him is time barred
The SDPOA may argue that because it appealed from the District Court and Superior
Courts orders in the underlying Aguirre and ~McGuigan litigation matters the statute of
limitations did not commence to run until the decisions on those appeals were rendered This
argument lacks merit and was rejected by the Jordache court when it determined that a causal
nexus between the injury and the malpractice does not need to be confirmed by settlement or
adjudication (Jordache 18 Cal4th at p 744) The Supreme Court reasoned that an existing
injury is not contingent or speculative simply because future events may effect its permanency or
the amount of monetary damages eventually incurred (fd at p 754)
Thus even if the SDPOA did not know whether future events (ie their appeals) may
effect the permanency of their injury (eg ruling that retiree benefits were not vested-
Complaint at 20) they still had suffered actual injury when the District Court and Superior Court
ruled against them and any tolling of the statute of limitations ended when Petersen departed the
JDTP law firm and his attorney-client relationship with the SDPOA terminated The fact that
appeals were still pending when he departed the JDTP law firm is of no consequence because in
determining actual injury the inquiry necessarily is more qualitative than quantitative because
the fact of damage rather than the amount is the critical factor (fd at p 752) The limitations
period is not tolled even ifthe injury is in some way remediable and appreciable actual injury
does not depend on the plaintiffs ability to attribute a quantifiable sum of money to
consequential damages (Jordache 18 Ca14th at p 750)
Here the underlying court records show Petersen no longer represented the SDPOA after
March 2008 The SDPOAs complaint offers no facts that would toll Section 3406 after the one
year limitations period commenced in March 2008 Because the SDPOA did not file this action
until March 29 2010 its claims against Petersen are time barred and this demurrer should be
sustained without leave to amend as to Petersen
-14shy--------- ---shy
Defendant Petersens Demurrer To Complaint
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OC46299lvl
V
PETERSENS DEMURRER SHOULD ALSO BE SUSTAINED BECAUSE THE SDPOA
HAS NOT PLEADED AND CANNOT PLEAD FACTS IN SUPPORT OF THE
CAUSATION AND DAMAGES ELEMENTS OF A CAUSES OF ACTION FOR LEGAL
MALPRACTICE
A To Prevail On A Claim For Legal Malpractice the Plaintiff Must Plead and
Prove the Defendant Caused the Plaintiffs Harm
The elements of a cause of action for professional negligence are (l) the duty ofthe
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 See ShopofJ amp Cavallo LLP v Hyon (2008) 167 CalApp4th 1489
1509 A claim for breach of contract also requires the plaintiff to prove that the defendants
breach caused the plaintiff to suffer damages See St Paul Fire amp Marin Ins Co v American
Dynasty Surplus Lines Ins Co (2002) 101 CaJApp4th 1038 1060 (An essential element of a
claim for breach of contract are damages resulting from the breach Causation ofdamages in
contract cases requires that the damages be proximately caused by the defendants breach)
The same causation test applies to both professional negligence and breach of contract claims
See Vasiion Therapeutics Inc v Foley amp Lardner LLP (SDCai 2008) 2008 WL 5147201 3 5
It is well settled that if the attorneys negligent conduct does not cause damage it
generates no cause of the action See ShopojJ 167 CaJApp4th at 1509 To show damages
proximately caused by the breach the pJaintiffmust demonstrate that but for the attorneys
malpractice it is more likely than not the plaintiff would have obtained a more favorable result
(d) See also Viner 30 Ca14th at 1240-43 Unless a party suffers damage as a consequence of
his attorneys negligence he cannot establish a cause of action for malpractice Breach of duty
causing only speculative harm is insufficient to create such a cause of action [D]amages may
5 SDPOA labels its claim as one for attorney malpractice and thus it is not clear if it intends to pursue a negligence theory a breach of contract theory or both See Complaint p 6 Regardless of whether the SDPOA pursues a tort or contract claim the same causation standard applies
-15shy----~---- ~----~~-~--~~~---------~------
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OC462991 v J
not be based upon sheer speculation or surmise and the mere possibility or even probability that
damage will result from wrongful conduct does not render it actionable Thompson v Halvonik
(1995) 36 CalAppAth 657 661-62
As the California Supreme Court made clear in the seminal Viner case the crucial
causation inquiry is what would have happened if the defendant attorney had not been negligent
This is so because the very idea of causation necessarily involves comparing historical events to
a hypothetical alternative Viner 30 CaL4th at 1242 (emphasis in original) Although the label
of the test may differ from case to case the rule underlying the test is always the same to
prevail on a malpractice claim the plaintiff must demonstrate that the attorneys negligence
caused the plaintiffs harm See Viner at 1240 n 4 (noting that the causation inquiry is also
sometimes described as the case within the case or the trial within the trial)
B Causation in a Legal Malpractice Case is Appropriately Treated as an Issue
of Law Rather Than Fact When the Underlying Litigation Was Decided
Based on a Question of Law
The element of causation in a legal malpractice case is treated as an issue of law which
the underlying litigation was decided on a question of law As one California court has
explained no jury can reach its own judgment on the proper outcome of an earlier case that
hinged on an issue of law Piscitelli v Friedenberg (2001) 87 CalAppAh 953 974 quoting
with approval from Chocktoot v Smith (Ore 1977) 571 P2d 1255 1258 see also id at 971
(explaining that [i]n legal malpractice cases whether a court or jury decides the underlying
case-within-a-case [turns on] whether the issues are predominantly questions of fact or law)
C The SDPOA Cannot Establish That Had Defendants Made a Different
Argument the Plaintiff Would Have Obtained a More Favorable Outcome
The SDPOAs causation allegation against Petersen is not merely tenuous it is nonshy
existent First the SDPOA alleges that it was adversely affected before the lawsuit was filed and
Defendants were retained when the City implemented its last bet final offer at the bargaining
table which had the effect of reducing retirement health benefit As a matter of law Petersen is
not the cause of the Citys bargaining position Moreover the underlying litigation on which the
Defendant Petersens Demurrer To Complaint
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OCI46299I v I
SDPOAs legal malpractice claims are based were part of the SDPOAs response to the Citys
reduction of the health benefits
Second Plaintiff argues that because the Defendants did not put on evidence of some
unidentified and undisputed facts or make unidentifled arguments or cite unidentified precedent
the trial courts in those matters wrongly decided issues concerning whether the SDPOAs
members retirement health benefits were vested
Whether retirement health benefits were vested under the federal law at issue in the
underlying litigation was a contested issue of law the opposing parties in the underlying action
were represented by very able counsel (the law firms of Latham amp Watkins and Seltzer Caplan
McMahon Vitek) and the legal issues were before and decided by judges after extensive
litigation briefing and argument After considering the law those judges unanimously ruled that
as a matter of law the benefits were not vested The SDPOA cannot possibly satisfy its burden
of proving by a preponderance of the evidence that this legal result was the fault of the
defendants ie that had the defendants only done something different it is more likely than not
that the questions of federal law in the underlying litigation would have been resolved
differently See Shopof[ 167 CalApp4th at 1509 Viner 30 Ca14th at 1240-43 Stated
differently whether the SDPOAs complaint is pure speculation - which it is - is a question of
law for this Court in this demurrer
In addition the same fatal flaw arises because the SDPOA through their present attorney
dismissed its state law claims The SDPOAs voluntary dismissal of its state law claims
precludes it from making the current legal malpractice claim By dismissing those claims the
SDPOA made it impossible to demonstrate but for causation in this case If the SDPOA
suffered any harm it has been on account of its own voluntary actions that have nothing to do
with Petersen and the claims alleged against him here
Lastly it is frivolous for Plaintiff to contend that the Defendants should bear
responsibility for the Citys decision to amend its Municipal Code and impose an $8800 cap on
annual retirement health benefits These Defendants have no control over the City and are not a
-17shyDefendant Petersens Demurrer To Complaint
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1 cause of the Citys own financial predicament and did not cause the City to decide to reduce the
2 SDPOAs members benefits before the underlying lawsuits had even been filed
3 VI
4 CONCLUSION
As discussed above there are at least two reasons why this demurrer should be sustained
6 without leave to amend First the SDPOAs complaint and court records from the underlying
7 litigation firmly establish that the SDPOAs claim against defendant Petersen is barred by the
8 one year statute of limitations applicable to legal malpractice actions Second the SDPOAs
9 allegations also firmly establish that Petersen did not cause the SDPOA any damage as a matter
oflaw
11 For these reasons defendant Petersens demurrer to Plaintiffs complaint should be
12 sustained Moreover because no amendment will change this result this demurrer should be
13 sustained without leave to amend
14
DATED May 142010 SEDGWICK DETERT MORAN amp ARNOLD LLP
17
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By1~~tra18 Gregory H Halliday
Frederick B Hayes 19 Attorneys for Defendant
GREGORY GLENN PETERSEN
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OC46299 I v I 8shyDefendant Petersens Demurrer To Complaint
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PROOF OF SERVICE
San Diego Police Officers Association v Jackson Deivfarco Tidus amp Peckenpaugh et al San Diego Superior Court Case No 37-2010-00088794-CU-PN-CTL
I am a resident of the State of California over the age of eighteen years and not a party to the within action My business address is Sedgwick Detert Moran amp Arnold LLP 3 Park Plaza 17th Floor Irvine California 92614middot8540 On May 142010 I served the within document(s)
DEFENDANT GREGORY GLENN PETERSENS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS COMPLAINT MEMORANDUM OF POINTS AND
AUTHORITIES
o FACSIMILEmiddot by transmitting via facsimile the document(s) listed above to the fax number(s) set forth on the attached Telecommunications Cover Page(s) on this date before 500 pm
MAILmiddot by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid in the United States mail at Irvine California addressed as set forth below
PERSONAL SERVICE - by personally delivering the document(s) listed above to the persltm(s) at the addressees) set forth below
o OVERNIGHT COURIER - by placing the document(s) listed above in a sealed envelope with shipping prepaid and depositing in a collection box for next day delivery to the person(s) at the addressees) set forth below via OverNite Express
SEE ATTACHED LIST
I am readily familiar with the finns practice of collection and processing correspondence for mailing Under that practice it would be deposited with the US Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business I am aware that on motion of the party served service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit
I declare under penalty of perjury under the laws of the State of California that the above is true and correct Executed on May 142010 at Irvine California
OCI463303v I
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San Diego Police Officers Association v Jackson Ddvfarco Tidus amp Peckenpaugh et ai SDSC Case No 37-2010-00088794-CU-PN-CTL
2 ProofofService shy Page 2
3
4 I Michael A Conger Esq AhUUltys for Plaintiff Law Office of Michael A Conger San Diego Police Officers Association 16236 San Dieguito Road Suite 4-14 PO Box 9374 (858) 759-0200 - telephone
6 Rancho Santa Fe CA 92067 (858) 759-1906 facsimile congermike(aJaoLcom
7 Gregory A Long Esq Attorneys for Defendants
8 Sheppard Mullin Richter amp Hampton LLP Jackson DeMarco Tidus amp Peckenpaugh 333 S Hope Street 48 th Floor
9 Los Angeles CA 90071 (213) 617-5443 phone (213) 620-1398 - facsimile
Iglongsheppardmullincom
11 Matthew W Holder Esq
12 Sheppard Mullin Richter amp HamptonLLP 12275 EI Camino Real Suite 200
13 San Diego CA 92130-2006
14 ~ -
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OC463303v I
Attorneys for Defendants Jackson DeMarco Tidus amp Peckenpaugh
(858) 720-8900 - phone (858) 509-3691 facsimile mholdersheppardmullincom
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t VICK oo~laquo bull NOUgt~ 2 8
OC46299I vI
DEMURRER TO COMPLAINT
Defendant Gregory Glenn Petersen (Petersen) demurs to the complaint of plaintiff San
Diego Police Officers Association (the SDPOA) on the following grounds
1 The complaint fails to state facts sufficient to a cause of action See Code Civ
Proc sect 431l0(e)
DEMURRER TO FIRST CAUSE OF ACTION
Defendant Petersen demurs to the SDPOAs first cause of action labeled Attorney
Malpractice on the following grounds
1 The complaint fails to state facts sufficient to a cause of action Code Civ
Proc sect 43110(e)
WHEREFORE defendant Gregory Glenn Petersen prays that his Demurrer to the
SDPOAs complaint be sustained without leave to amend and that the court grant such other and
further relief as it deems just and appropriate
DATED May 142010 SEDGWICK DETERT MORAN amp ARNOL LLP
BY1Nd~ I-J Gregory H Halliday Frederick B Hayes Attorneys for Defendant GREGORY GLENN PETERSEN
Defendant Petersens Demurrer To Complaint
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OC462991vi
MEMORANDUM OF POINTS AND AUTHORITIES
I
INTRODUCTION AND SUMMARY OF ARGUMENT
This legal malpractice lawsuit by Plaintiff San Diego Police Officers Association (the
SDPOA) arises from a protracted fight between it and the City of San Diego (the City) over
retirement benefits for the CityS police officers Plaintiff alleges that the Jackson DeMarco
Tidus amp Peckenpaugh law firm (JDTP) and two attorneys including defendant Gregory Glenn
Petersen (Petersen) committed legal malpractice while representing the SDPOA in several
underlying litigation matters against the City namely SDPOA v Aguirre et al (Aguirre) and
McGuigan v City ofSan Diego et al (McGuigan) (See Compiaint ~ 9)1middot
Defendant Petersen demurs to SDPOAs legal malpractice complaint on the grounds that
it is barred by Code of Civil Procedure section 3406 the one year statute of limitations
applicable to a cause of action for legal malpractice2
In the underlying McGuigan case the trial court granted judgment in favor of the City
defendants in December 2006 In the underlying Aguirre case the trial court granted summary
judgment in favor of the City defendants and against the SDPOA in May 2007 Although both
matters were appealed Petersens attorney-client relationship with the SDPOA ended in March
2008 when Petersen left the JDTP law firm The SDPOAs complaint offers no facts that would
toll Section 3406 as against Petersen once he left JDTP Beal Bank SSB v Arter amp Hadden
LLP (2007) 42 CaL4th 503 Because the present legal malpractice lawsuit was not filed until
I The cases identified in paragraph 9 of the SDPOAs instant complaint are San Diego Police Officers Association v Aguirre et al United States District Court Southern District of California Case No 05-CV-1581 and McGuigan v City of San Diego Superior Court of San Diego County Case No GIC949883 In the McGuigan case the SDPOA was an objector in the trial court proceedings
2 All further statutory references are to the Code of Civil Procedure unless stated otherwise
The SDPOA must concede that its attorney-client relationship with Petersen terminated in March 2008 when Petersen left the JDTP law firm In an unpublished opinion arising from the McGuigan case the appellate court noted that as of April 2008 the SDPOAs original lead attorney Gregory Peterson [sic] recently left the Jackson DeMarco firm and temporarily sought to take the case with him but at this time counsel for [the SDPOA] remains the Jackson DeMarco firm See McGuigan v City ofSan Diego 2008 WL 4358551 attached as Exh 1 to Petersens Request for Judicial Notice See also Petersens Request for Judicial Notice at Exh 2 [April 2008 order in Aaron]
-4shyDefendant Petersens Demurrer To Complaint
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OC46299 I y I
March 2010 more than two years after Petersens attorney-client relationship with the SDPOA
ended it is time barred by Section 3406 Because no amendment can change this result
Petersens demurrer should be sustained without leave to amend
In addition to being time-barred the SDPOAs legal malpractice action also fails as a
matter of law because the SDPOA cannot meet the causation and damages elements of its
malpractice claim In particular the SDPOA cannot establish that but for the alleged legal
malpractice it is more likely than not that the SDPOA would have achieved a more favorable
outcome Viner v Sweet (2003) 30 Ca14th 1232 1240-1243 (Viner) The purpose of this
requirement which has been in use for more than 120 years is to safeguard against speculative
and conjectural claims Viner 30 CaL4th at p 1241 citing Matteo Forge Inc v Arthur Young
amp Co (1997) 52 CalAppAth 820 832-834 This requirement serves the essential purpose of
ensuring that damages awarded for an attorneys malpractice actually -were caused by the
malpractice Matteo Forge Inc v Arthur Young amp Co supra 52 CalAppAth at p 834 In this
case the SDPOAs failure to allege facts showing that but for the alleged negligence a
different result would have been obtained is another reason why the SDPOAs complaint fails to
state sufficient facts to constitute a cause of action against Petersen
In the underlying lawsuits the SDPOA argued that retirement health benefits were vested
and therefore the City could not unilaterally modify those benefits In this legal malpractice
lawsuit the SDPOA alleges that the defendant attorneys did a poor job of presenting the vested
retirement benefits issue to the courts The SDPOA further alleges that the defendant attorneys
malpractice caused the courts in the underlying litigation matters to rule against the SDPOA in
those cases In making these allegations the SDPOA does not identify a single negligent act or
omission and the SDPOAs silence on this point is telling
The fatal defect inherent in the SDPOAs present action is that it cannot plead or
establish that the defendant attorneys caused the SDPOA any harm In its complaint the
SDPOA speculates that it could have obtained a more favorable outcome had the defendant
attorneys merely done some unspecified act or presented some unidentified argument Whether
the retirement health benefits were vested under federal law is a legal question The SDPOAs
Defendant Petersens Demurrer To Complaint
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OC462991v 1
allegations fail to even hint at what fact or legal precedent or argument should have been
presented to the courts in the underlying actions to causes them to reach a different conclusion as
to whether under federal law the SDPOAs members retirement health benefits were vested
The SDPOAs inability to prove causation is also the result of the SDPOAs ovvD acts
Although the federal law claims brought by the SDPOA in the underlying litigation were
disposed of on their merits the state law causes of action were dismissed without prejudice and
subsequently the SDPOA filed a state court action SDPOA v Aguirre et aI Superior Court of
San Diego County Case No GIC 841845 After filing this state court lawsuit the SDPOA
dismissed it on December 9 2009 through its attorney Michael Conger who is also the
SDPOAs attorney of record in the present legal malpractice lawsuit Thus state law remedies
which had they been successfully prosecuted would have obviated any claim of damage by the
SDPOA were voluntarily relinquished by the SDPOA when it dismissed its state court lawsuit
Stated otherwise because the SDPOA voluntarily terminated its lawsuit asserting the
state law claims regarding the vesting of the retirement health benefits the SDPOA is now
precluded from asserting any act or omission by the defendants in the present matter caused it
any injury Because the SDPOA chose to dismiss its state claims their eventual outcome is
necessarily in the realm of speculation and conjecture and the SDPOAs present claim fails
Finally the SDPOA cannot seriously assert that it knows what motivated the City or that
the City would not have taken other steps to reduce its exposure for pay andor retirement
benefits if only some fact had been presented or some argument made As this court wells
knows as a result of pension liabilities the City was facing a deficit that exceeded one billion
dollars Simply put the SDPOA cannot show that but for the defendants alleged negligence
it is more likely than not that the courts in the underlying litigation matters would have reached
different conclusions or that these court decisions caused the City to reduce the compensation to
the SDPOAs members when the City had already stated before the underlying litigation
matters were filed that it intended to do so The SDPOA lawsuit fails as a matter of law and
should be dismissed
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II
STATEMENT OF FACTS
On March 29 2010 the SDPOA filed its present legal malpractice lawsuit against the
JDTP law firm and two attorneys - Petersen and Mohamed Alim Ahmad Malik - asserting a
single cause of action labeled Attorney Malpractice The SDPOA alleges the defendants
represented it in underlying litigation against the City identified as SDPOA v Aguirre et al and
McGuigan v City oSan Diego et al (See Complaint ~ 9) The SDPOAs complaint alleges
nine generally described breaches of the duty of care such as the failure to present sufficient
evidence to prevail on the retiree health claim in SDPOA v Aguirre et al even though such
evidence existed resulting in a reduction of retiree heaith benefits to SDPOA members (Id at
~ 11(b)) As a result of these and the other alleged breaches of the duty of care the SDPOA
seeks damages including the fees it paid to the JDTP law firm in the underlying litigation (Jd
at ~ 11(b))
The SDPOAs bare bones complaint omits several key chronological facts that are
dispositive of its claims against Petersen
(1) The McGuigan court entered judgment on the SDPOAs claims in December
2006
(2) The Aguirre court entered summary judgment in favor of the City defendants and
against the SDPOA in May 2007
(3) Petersen left the JDTP law firm in March 2008 and his attorney-client
relationship with the SDPOA terminated then
Indeed the fact that Petersen left the JDTP law firm in March 2008 is patently obvious
from an April 2008 order entered by the United States District Court Southern District of
California in Aaron et a v Aguirre et at (Aaron) Case No 06-CV -1451 a related health
benefits litigation matter filed by approximately 1800 SDPOA members In Aaron the District
Court entered an order in April 2008 requiring each of the approximately 1800 plaintiffs to sign
a substitution of attorney stating whether he or she was represented by Petersen and the Petersen
Law Firm or the JDTP law firm or someone else (RJN Exh 2)
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In other words court records firmly establish that the SDPOAs cause ofact10n for legal
malpractice against Petersen accrued no later than March 2008 As of March 2008 the SDPOA
had alleged suffered actual harm as a result of Petersens malpractice and he was not longer
representing it Accordingly the one year statute for any claim the SDPOA had against Petersen
for legal malpractice arising from the McGuigan and Aguirre matters commenced to run in
March 2008 Because the SDPOA did not file this lawsuit until March 29 2010 its claim for
legal malpractice against Petersen is time barred by Section 3406
III
DEMURRER IS PROPER WHERE ACTION IS BARRED
BY STATUTE OF LIMITATIONS
The party against whom a complaint has been filed may object by demurrer as
provided in Section 43030 to the pleading on the grounds that [tJhe pleading does not
state facts sufficient to constitute a cause of action (Code Civ Proc sect 43010 subd (e))
When the plaintiffs action is barred by the statute of limitations a general demurrer (ie
the pleading does not state facts sufficient to constitute a cause of action) is proper (Saliter v
Pierce Bros lvfortuaries (1978) 81 CaLApp3d 292300 fn 2 Iverson Yoakum Papiano amp
Hatch v Berwald (1999) 76 CalApp4th 990 995)
A demurrer is also appropriate if a pleading does not state facts sufficient to constitute a
cause of action Code Civ Proc sect 430l0e) Bockrath v Aldrich Chemical Co (1999) 21
Ca14th 7183 Here the SDPOA cannot state facts to support the causation and damages
elements of its legal malpractice cause of action Although a court must on demurrer accept as
true properly pleaded facts a demurrer does not admit contentions or conclusions of law or fact
freeman v San Diego Ass n ofRealtors (l999) 77 CaLApp4th 71 185 n 11
Under Section 43030 a demurrer can also be based on matter subject to judicial notice
is properly based on any matter of which the court is required to or may take judicial notice
(Code Civ Proc sect 43030 subd (a)) Under Evidence Code section 452(d) the court can take
judicial notice of the court records of any court of record of the United States (Evid Code sect
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452(d))4 When court records subject to judicial notice disclose an absolute defense to the action
or a deficiency in the complaint the matter can be adjudicated at by way of demurrer
(Bistawros v Greenberg (1987) 189 CalApp3d 189 192 [court took judicial notice of its own
files in sustaining demurrer on ground of another action pending between same parties on same
cause1 see also Frornrnhagen v Board ofSupervisors ofSanta Cruz County (1987) 197
Ca1App3d 1292 1299 [court took judicial notice of complaint in prior action] Britz Inc v
Dow Chern Co (1999) 73 CalAppAth 177 180 [in ruling on demurrer court could take judicial
notice of prior order approving good faith settlement under Code of Civil Procedure sect 8776])
Here defendant Petersen requests that this court take judicial notice pursuant to Evidence
Code section 452(d) of the court records including court orders in the underlying actions on
which the SDPOAs present legal malpractice claims are based namely San Diego Police
Officers Association v Aguirre et al USDC Case No 05-CV -1581 McGuigan v City ofSan
Diego San Diego County Case No OIC 949883 and the action by the SDPOAs members
Aaron et al v Aguirre et at (Aaron) USDC Case No 06-CV -1451
These court records establish that as of March 2008 the SDPOA had allegedly suffered
actual injury and its attorney-client relationship with Petersen terminated Accordingly as of
March 2008 the one year statute commenced to run The SDPOAs failure to file its lawsuit
against Petersen within one year of March 2008 means its claim against him is now time barred
IV
THE ENTIRE ACTION AGAINST PETERSEN IS BARRED
BY CODE OF CIVIL PROCEDURE SECTION 3406
A The One Year Statute of Limitations Set Forth In Section 3406 Applies To
The SDPOAs Claims
The SDPOAs claims against Petersen are barred by the one year statute of limitations set
forth in Section 3406 which is the statute of limitations for all actions against attorneys for
4 Evidence Code section 452 provides as follows Judicial notice may be taken ofthe following matters (~~J (d) Records of (1) any court of this state or (2) any court of record of the United States
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alleged wrongful acts or omissions arising out of the rendition of professional services
(Crowley v Katleman (1994) 8 Ca14th 666681-682) Section 3406 states
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 ofthe wrongful act or omission whichever occurs first (Code Civ Proc sect 3406(a))
Where an attorney has been accused of wrongful conduct the courts recognize that
regardless of the labels attached to the pleadings allegations the gravamen of the complaint is
legal malpractice (Kracht v Perrin Gartland amp Doyle (1990) 219 CalApp3d 1019 1022-1023
(Kracht) [complaint for breach of statutory duty constructive fraud and ordinary negligence
treated as malpractice claim for purposes of upholding order sustaining demurrer without leave
to amend] Jackson v Rogers amp Wells (1989) 210 CaLApp3d 336346349 [fraud and breach of
contract theories where alleged misfeasance Were acts requiring professional judgment calls
treated as malpractice claims for assignability purposes]) California case law treats all actions
arising out of the wrongful acts or omissions of attorneys as falling under the umbrella of legal
malpractice (Pompilio v Kosmo Cho amp Brown (1995) 39 CalAppAth 1324 1329 [plaintiffs
breach of fiduciary duty cause of action for attorneys errors and omissions sounds in legal
malpractice] see also Levin v Graham amp James (1995) 37 CalAppAth 798 Thompson v
Halvonik (1995) 36 CalAppAth 657664 Jacoby v Schenkel (1995) 36 CalAppAth 1701
Radovich v Locke-Paddon (1995) 35 CalAppAth 946 966 Stoll v Superior Court (1992) 9
CalAppAth 1362 1368)
Put simply when the claim concerns an alleged injury arising by reason of an attorneys
professional negligence the claim is one for legal malpractice subject to the statute of limitations
set forth in Section 3406 (Kracht 219 CaLApp3d at pp 1022-1023) Here the thrust of the
SDPOAs claim is that the Defendants including Petersen negligently handled the underlying
litigation (Complaint ~20) The complaints allegations plainly establish that the SDPOA is
suing Defendants for alleged errors and omissions arising from the provision oflegal services
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with respect to underlying litigation Thus the applicable statute of limitations is Section 3406
(Kracht 219 CalApp3d at pp 1022-1023)
B The SDPOA Suffered Actual Injury When The Underlying Trial Courts
Entered Judgment Against It In The Underlying Litigation Matters
The California Supreme Court has made it clear that [a]ctual injury occurs when the
client suffers any loss or injury legally cognizable as damages in a legal malpractice action based
on the asserted errors or omissions (Jordache Enterprises Inc v Brobeck Phleger and
Harrison (1998) 18 Cal4th 739 743 (Jordache)) The Jordache court determined that the loss
or diminution of a right or remedy constitutes injury or damage Neither uncertainty of amount
nor difficulty of proof renders that injury speculative or inchoate (fd at p 744) As explained
by the Supreme Court in determining actual injury the inquiry necessarily is more qualitative
than quantitative because the fact of damage rather than the amount is the critical factor (Id
at p 752)
In Jordache the plaintiff alleged that the defendant committed malpractice by failing to
advise the plaintiff to tender a complaint filed against it to its insurance carrier (fd at p 746)
As a result of the defendants omission significant time passed before the plaintiff tendered the
complaint to the insurer (Id at p 745) The insurance carrier argued that the plaintiffs late
tender relieved its obligation to provide benefits (Ibid) The plaintiff initiated litigation against
the insurer regarding the coverage issue and the viability of the insurers late tender defense
(Ibid) The plaintiff did not file its professional malpractice claim against the defendant until
after resolution of the coverage litigation (fd at p 746)
In evaluating when the actual injury occurred under Section 3406 the California
Supreme Court concluded that in addition to incurring legal fees to prosecute the coverage
dispute the defendants alleged omissions also gave the insurers an objectively viable defense
which consequently reduced those [insurance] claims settlement value (Id at p 743)
Because the insurers objection rendered the plaintiffs claims immediately less valuable than
they were prior to the assertion of such defense and because the defense arose as a result of the
plaintiffs counsels omission the plaintiff was actually injured within the meaning of Section
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3406 at the time the insurers defense was asserted (ld at pp 743-744) It does not matter
whether a plaintiff is able to quantify the amount by which its claims were devalued at the time
such a defense accrued and was asserted because actual injury may well precede quantifiable
financial costs (Adams v Paul (1995) 11 CaL4th 583 591 fn 5)
Thus under Jordache the test for actual injury under section 3406 therefore is
whether the plaintiff has sustained any damages compensable in an action against an attorney
for a wrongful act or omission arising in the performance of professional services (Jordache
18 CaL4th at p 751)
With respect to the present case the SDPOA suffered actual injury in the underlying
litigation matters when the trial courts entered judgment against the SDPOA Thus it suffered
actual injury in the McGuigan matter in December 2006 and it suffered actual injury in the
Aguirre matter in May 2007
c The SDPOA Discovered The Alleged Injuries In December 2006 and May
2007
To constitute discovery as that term is used in Section 3406 a plaintiff need only be
apprised of the fact that someone has done a wrong - plaintiff need not have a legal theory or
knowledge that he has a cause of action against an attorney at that point (McGee v Weinberg
(1979) 97 CaLApp3d 798 (lvfcGee) Worton v Worton (1991) 234 CaLApp3d 1368)
Discovery for purposes of triggering the commencement of the limitations period under Section
3406 occurs when the client discovered or should have discovered the facts giving rise to a
cause of action for legal malpractice As noted by the McGee court The test is whether the
plaintiff has information of circumstances sufficient to put a reasonable person on inquiry or has
the opportunity to obtain knowledge from sources open to his or her investigation (McGee 97
CaLApp3d at p 798)
Here the SDPOA knew it had lost the McGuigan case in December 2006 and the
Aguirre case in May 2007 The SDPOA also knew that its attorney client relationship with
Petersen terminated in March 2008 when he left the JDTP law firm
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Thus as of March 2008 the SDPOA had information sufficient to put a reasonable
person on inquiry The possibility that the SDPOA may not have understood or that their
attorneys at JDTP may not have told them of all of the significance of Petersens departure from
the JDTP law firm (eg the commencement of the statute as to any claims against Petersen) does
not alter the fact that the SDPOA discovered (or should have discovered) the facts which gave
rise to their legal malpractice claims against Petersen no later than March 3 2008
D Plaintiffs Suffered Actual Injury More Than One Year Before Filing Their
Complaint And The Statute of Limitations Has Not Been Tolled
Under Code of Civil Procedure section 3406 an action must be commenced one year
from discovery unless tolled because among other things the attorney continues to represent the
plaintiff regarding the specific subject matter in which the alleged act or omission occurred
(Code Civ Proc sect 3406) In this case there is no dispute that Petersens representation of the
SDPOA terminated in March 2008 when he left the JDTP law firm and ceased his representation
of the SDPOA As such there is no tolling ofthe statute in this situation for continuous
representation The present situation is somewhat analogous to Beal Bank SSB v Arter amp
Hadden LLP (2007) 42 Ca14th 503 (Beal Bank)
Beal Bank acquired loans that contained default provisions and retained the AampH law
firm to handle the collection efforts The attorney handling the matter left the AampH law firm and
the attorneys new firm took over Beal Banks representation When the collections efforts were
unsuccessful Beal Bank sued the AampH law firm and the new law firm The AampH law firm
demurred to the malpractice complaint on the theory that when the lawyer left and took the client
with him there was no need to continue to toll the statute of limitations against the AampH law
firm due to continued representation The Supreme Court agreed and held that once the case
leaves the firm the representation of the prior firm ceases and the statute of limitations clock
begins to tick against the prior firm (Beal Bank 42 Ca14th at pp 512-514)
The Supreme Court recognized that this situation may require malpractice plaintiffs to
move swiftly and perhaps act in filing a lawsuit before the underlying action was resolved but
the Supreme Court did not let this concern affect its reasoning regarding when continuous
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representation tolling ceases Here the clock for the SDPOAs malpractice claims against
Petersen commenced to tick in March 2008 when he left the JDTP law firm The SDPOA did
not file its action against Petersen within one year of March 2008 and therefore its legal
malpractice claim against him is time barred
The SDPOA may argue that because it appealed from the District Court and Superior
Courts orders in the underlying Aguirre and ~McGuigan litigation matters the statute of
limitations did not commence to run until the decisions on those appeals were rendered This
argument lacks merit and was rejected by the Jordache court when it determined that a causal
nexus between the injury and the malpractice does not need to be confirmed by settlement or
adjudication (Jordache 18 Cal4th at p 744) The Supreme Court reasoned that an existing
injury is not contingent or speculative simply because future events may effect its permanency or
the amount of monetary damages eventually incurred (fd at p 754)
Thus even if the SDPOA did not know whether future events (ie their appeals) may
effect the permanency of their injury (eg ruling that retiree benefits were not vested-
Complaint at 20) they still had suffered actual injury when the District Court and Superior Court
ruled against them and any tolling of the statute of limitations ended when Petersen departed the
JDTP law firm and his attorney-client relationship with the SDPOA terminated The fact that
appeals were still pending when he departed the JDTP law firm is of no consequence because in
determining actual injury the inquiry necessarily is more qualitative than quantitative because
the fact of damage rather than the amount is the critical factor (fd at p 752) The limitations
period is not tolled even ifthe injury is in some way remediable and appreciable actual injury
does not depend on the plaintiffs ability to attribute a quantifiable sum of money to
consequential damages (Jordache 18 Ca14th at p 750)
Here the underlying court records show Petersen no longer represented the SDPOA after
March 2008 The SDPOAs complaint offers no facts that would toll Section 3406 after the one
year limitations period commenced in March 2008 Because the SDPOA did not file this action
until March 29 2010 its claims against Petersen are time barred and this demurrer should be
sustained without leave to amend as to Petersen
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V
PETERSENS DEMURRER SHOULD ALSO BE SUSTAINED BECAUSE THE SDPOA
HAS NOT PLEADED AND CANNOT PLEAD FACTS IN SUPPORT OF THE
CAUSATION AND DAMAGES ELEMENTS OF A CAUSES OF ACTION FOR LEGAL
MALPRACTICE
A To Prevail On A Claim For Legal Malpractice the Plaintiff Must Plead and
Prove the Defendant Caused the Plaintiffs Harm
The elements of a cause of action for professional negligence are (l) the duty ofthe
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 See ShopofJ amp Cavallo LLP v Hyon (2008) 167 CalApp4th 1489
1509 A claim for breach of contract also requires the plaintiff to prove that the defendants
breach caused the plaintiff to suffer damages See St Paul Fire amp Marin Ins Co v American
Dynasty Surplus Lines Ins Co (2002) 101 CaJApp4th 1038 1060 (An essential element of a
claim for breach of contract are damages resulting from the breach Causation ofdamages in
contract cases requires that the damages be proximately caused by the defendants breach)
The same causation test applies to both professional negligence and breach of contract claims
See Vasiion Therapeutics Inc v Foley amp Lardner LLP (SDCai 2008) 2008 WL 5147201 3 5
It is well settled that if the attorneys negligent conduct does not cause damage it
generates no cause of the action See ShopojJ 167 CaJApp4th at 1509 To show damages
proximately caused by the breach the pJaintiffmust demonstrate that but for the attorneys
malpractice it is more likely than not the plaintiff would have obtained a more favorable result
(d) See also Viner 30 Ca14th at 1240-43 Unless a party suffers damage as a consequence of
his attorneys negligence he cannot establish a cause of action for malpractice Breach of duty
causing only speculative harm is insufficient to create such a cause of action [D]amages may
5 SDPOA labels its claim as one for attorney malpractice and thus it is not clear if it intends to pursue a negligence theory a breach of contract theory or both See Complaint p 6 Regardless of whether the SDPOA pursues a tort or contract claim the same causation standard applies
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not be based upon sheer speculation or surmise and the mere possibility or even probability that
damage will result from wrongful conduct does not render it actionable Thompson v Halvonik
(1995) 36 CalAppAth 657 661-62
As the California Supreme Court made clear in the seminal Viner case the crucial
causation inquiry is what would have happened if the defendant attorney had not been negligent
This is so because the very idea of causation necessarily involves comparing historical events to
a hypothetical alternative Viner 30 CaL4th at 1242 (emphasis in original) Although the label
of the test may differ from case to case the rule underlying the test is always the same to
prevail on a malpractice claim the plaintiff must demonstrate that the attorneys negligence
caused the plaintiffs harm See Viner at 1240 n 4 (noting that the causation inquiry is also
sometimes described as the case within the case or the trial within the trial)
B Causation in a Legal Malpractice Case is Appropriately Treated as an Issue
of Law Rather Than Fact When the Underlying Litigation Was Decided
Based on a Question of Law
The element of causation in a legal malpractice case is treated as an issue of law which
the underlying litigation was decided on a question of law As one California court has
explained no jury can reach its own judgment on the proper outcome of an earlier case that
hinged on an issue of law Piscitelli v Friedenberg (2001) 87 CalAppAh 953 974 quoting
with approval from Chocktoot v Smith (Ore 1977) 571 P2d 1255 1258 see also id at 971
(explaining that [i]n legal malpractice cases whether a court or jury decides the underlying
case-within-a-case [turns on] whether the issues are predominantly questions of fact or law)
C The SDPOA Cannot Establish That Had Defendants Made a Different
Argument the Plaintiff Would Have Obtained a More Favorable Outcome
The SDPOAs causation allegation against Petersen is not merely tenuous it is nonshy
existent First the SDPOA alleges that it was adversely affected before the lawsuit was filed and
Defendants were retained when the City implemented its last bet final offer at the bargaining
table which had the effect of reducing retirement health benefit As a matter of law Petersen is
not the cause of the Citys bargaining position Moreover the underlying litigation on which the
Defendant Petersens Demurrer To Complaint
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SDPOAs legal malpractice claims are based were part of the SDPOAs response to the Citys
reduction of the health benefits
Second Plaintiff argues that because the Defendants did not put on evidence of some
unidentified and undisputed facts or make unidentifled arguments or cite unidentified precedent
the trial courts in those matters wrongly decided issues concerning whether the SDPOAs
members retirement health benefits were vested
Whether retirement health benefits were vested under the federal law at issue in the
underlying litigation was a contested issue of law the opposing parties in the underlying action
were represented by very able counsel (the law firms of Latham amp Watkins and Seltzer Caplan
McMahon Vitek) and the legal issues were before and decided by judges after extensive
litigation briefing and argument After considering the law those judges unanimously ruled that
as a matter of law the benefits were not vested The SDPOA cannot possibly satisfy its burden
of proving by a preponderance of the evidence that this legal result was the fault of the
defendants ie that had the defendants only done something different it is more likely than not
that the questions of federal law in the underlying litigation would have been resolved
differently See Shopof[ 167 CalApp4th at 1509 Viner 30 Ca14th at 1240-43 Stated
differently whether the SDPOAs complaint is pure speculation - which it is - is a question of
law for this Court in this demurrer
In addition the same fatal flaw arises because the SDPOA through their present attorney
dismissed its state law claims The SDPOAs voluntary dismissal of its state law claims
precludes it from making the current legal malpractice claim By dismissing those claims the
SDPOA made it impossible to demonstrate but for causation in this case If the SDPOA
suffered any harm it has been on account of its own voluntary actions that have nothing to do
with Petersen and the claims alleged against him here
Lastly it is frivolous for Plaintiff to contend that the Defendants should bear
responsibility for the Citys decision to amend its Municipal Code and impose an $8800 cap on
annual retirement health benefits These Defendants have no control over the City and are not a
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1 cause of the Citys own financial predicament and did not cause the City to decide to reduce the
2 SDPOAs members benefits before the underlying lawsuits had even been filed
3 VI
4 CONCLUSION
As discussed above there are at least two reasons why this demurrer should be sustained
6 without leave to amend First the SDPOAs complaint and court records from the underlying
7 litigation firmly establish that the SDPOAs claim against defendant Petersen is barred by the
8 one year statute of limitations applicable to legal malpractice actions Second the SDPOAs
9 allegations also firmly establish that Petersen did not cause the SDPOA any damage as a matter
oflaw
11 For these reasons defendant Petersens demurrer to Plaintiffs complaint should be
12 sustained Moreover because no amendment will change this result this demurrer should be
13 sustained without leave to amend
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DATED May 142010 SEDGWICK DETERT MORAN amp ARNOLD LLP
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By1~~tra18 Gregory H Halliday
Frederick B Hayes 19 Attorneys for Defendant
GREGORY GLENN PETERSEN
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PROOF OF SERVICE
San Diego Police Officers Association v Jackson Deivfarco Tidus amp Peckenpaugh et al San Diego Superior Court Case No 37-2010-00088794-CU-PN-CTL
I am a resident of the State of California over the age of eighteen years and not a party to the within action My business address is Sedgwick Detert Moran amp Arnold LLP 3 Park Plaza 17th Floor Irvine California 92614middot8540 On May 142010 I served the within document(s)
DEFENDANT GREGORY GLENN PETERSENS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS COMPLAINT MEMORANDUM OF POINTS AND
AUTHORITIES
o FACSIMILEmiddot by transmitting via facsimile the document(s) listed above to the fax number(s) set forth on the attached Telecommunications Cover Page(s) on this date before 500 pm
MAILmiddot by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid in the United States mail at Irvine California addressed as set forth below
PERSONAL SERVICE - by personally delivering the document(s) listed above to the persltm(s) at the addressees) set forth below
o OVERNIGHT COURIER - by placing the document(s) listed above in a sealed envelope with shipping prepaid and depositing in a collection box for next day delivery to the person(s) at the addressees) set forth below via OverNite Express
SEE ATTACHED LIST
I am readily familiar with the finns practice of collection and processing correspondence for mailing Under that practice it would be deposited with the US Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business I am aware that on motion of the party served service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit
I declare under penalty of perjury under the laws of the State of California that the above is true and correct Executed on May 142010 at Irvine California
OCI463303v I
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San Diego Police Officers Association v Jackson Ddvfarco Tidus amp Peckenpaugh et ai SDSC Case No 37-2010-00088794-CU-PN-CTL
2 ProofofService shy Page 2
3
4 I Michael A Conger Esq AhUUltys for Plaintiff Law Office of Michael A Conger San Diego Police Officers Association 16236 San Dieguito Road Suite 4-14 PO Box 9374 (858) 759-0200 - telephone
6 Rancho Santa Fe CA 92067 (858) 759-1906 facsimile congermike(aJaoLcom
7 Gregory A Long Esq Attorneys for Defendants
8 Sheppard Mullin Richter amp Hampton LLP Jackson DeMarco Tidus amp Peckenpaugh 333 S Hope Street 48 th Floor
9 Los Angeles CA 90071 (213) 617-5443 phone (213) 620-1398 - facsimile
Iglongsheppardmullincom
11 Matthew W Holder Esq
12 Sheppard Mullin Richter amp HamptonLLP 12275 EI Camino Real Suite 200
13 San Diego CA 92130-2006
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OC463303v I
Attorneys for Defendants Jackson DeMarco Tidus amp Peckenpaugh
(858) 720-8900 - phone (858) 509-3691 facsimile mholdersheppardmullincom
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MEMORANDUM OF POINTS AND AUTHORITIES
I
INTRODUCTION AND SUMMARY OF ARGUMENT
This legal malpractice lawsuit by Plaintiff San Diego Police Officers Association (the
SDPOA) arises from a protracted fight between it and the City of San Diego (the City) over
retirement benefits for the CityS police officers Plaintiff alleges that the Jackson DeMarco
Tidus amp Peckenpaugh law firm (JDTP) and two attorneys including defendant Gregory Glenn
Petersen (Petersen) committed legal malpractice while representing the SDPOA in several
underlying litigation matters against the City namely SDPOA v Aguirre et al (Aguirre) and
McGuigan v City ofSan Diego et al (McGuigan) (See Compiaint ~ 9)1middot
Defendant Petersen demurs to SDPOAs legal malpractice complaint on the grounds that
it is barred by Code of Civil Procedure section 3406 the one year statute of limitations
applicable to a cause of action for legal malpractice2
In the underlying McGuigan case the trial court granted judgment in favor of the City
defendants in December 2006 In the underlying Aguirre case the trial court granted summary
judgment in favor of the City defendants and against the SDPOA in May 2007 Although both
matters were appealed Petersens attorney-client relationship with the SDPOA ended in March
2008 when Petersen left the JDTP law firm The SDPOAs complaint offers no facts that would
toll Section 3406 as against Petersen once he left JDTP Beal Bank SSB v Arter amp Hadden
LLP (2007) 42 CaL4th 503 Because the present legal malpractice lawsuit was not filed until
I The cases identified in paragraph 9 of the SDPOAs instant complaint are San Diego Police Officers Association v Aguirre et al United States District Court Southern District of California Case No 05-CV-1581 and McGuigan v City of San Diego Superior Court of San Diego County Case No GIC949883 In the McGuigan case the SDPOA was an objector in the trial court proceedings
2 All further statutory references are to the Code of Civil Procedure unless stated otherwise
The SDPOA must concede that its attorney-client relationship with Petersen terminated in March 2008 when Petersen left the JDTP law firm In an unpublished opinion arising from the McGuigan case the appellate court noted that as of April 2008 the SDPOAs original lead attorney Gregory Peterson [sic] recently left the Jackson DeMarco firm and temporarily sought to take the case with him but at this time counsel for [the SDPOA] remains the Jackson DeMarco firm See McGuigan v City ofSan Diego 2008 WL 4358551 attached as Exh 1 to Petersens Request for Judicial Notice See also Petersens Request for Judicial Notice at Exh 2 [April 2008 order in Aaron]
-4shyDefendant Petersens Demurrer To Complaint
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OC46299 I y I
March 2010 more than two years after Petersens attorney-client relationship with the SDPOA
ended it is time barred by Section 3406 Because no amendment can change this result
Petersens demurrer should be sustained without leave to amend
In addition to being time-barred the SDPOAs legal malpractice action also fails as a
matter of law because the SDPOA cannot meet the causation and damages elements of its
malpractice claim In particular the SDPOA cannot establish that but for the alleged legal
malpractice it is more likely than not that the SDPOA would have achieved a more favorable
outcome Viner v Sweet (2003) 30 Ca14th 1232 1240-1243 (Viner) The purpose of this
requirement which has been in use for more than 120 years is to safeguard against speculative
and conjectural claims Viner 30 CaL4th at p 1241 citing Matteo Forge Inc v Arthur Young
amp Co (1997) 52 CalAppAth 820 832-834 This requirement serves the essential purpose of
ensuring that damages awarded for an attorneys malpractice actually -were caused by the
malpractice Matteo Forge Inc v Arthur Young amp Co supra 52 CalAppAth at p 834 In this
case the SDPOAs failure to allege facts showing that but for the alleged negligence a
different result would have been obtained is another reason why the SDPOAs complaint fails to
state sufficient facts to constitute a cause of action against Petersen
In the underlying lawsuits the SDPOA argued that retirement health benefits were vested
and therefore the City could not unilaterally modify those benefits In this legal malpractice
lawsuit the SDPOA alleges that the defendant attorneys did a poor job of presenting the vested
retirement benefits issue to the courts The SDPOA further alleges that the defendant attorneys
malpractice caused the courts in the underlying litigation matters to rule against the SDPOA in
those cases In making these allegations the SDPOA does not identify a single negligent act or
omission and the SDPOAs silence on this point is telling
The fatal defect inherent in the SDPOAs present action is that it cannot plead or
establish that the defendant attorneys caused the SDPOA any harm In its complaint the
SDPOA speculates that it could have obtained a more favorable outcome had the defendant
attorneys merely done some unspecified act or presented some unidentified argument Whether
the retirement health benefits were vested under federal law is a legal question The SDPOAs
Defendant Petersens Demurrer To Complaint
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allegations fail to even hint at what fact or legal precedent or argument should have been
presented to the courts in the underlying actions to causes them to reach a different conclusion as
to whether under federal law the SDPOAs members retirement health benefits were vested
The SDPOAs inability to prove causation is also the result of the SDPOAs ovvD acts
Although the federal law claims brought by the SDPOA in the underlying litigation were
disposed of on their merits the state law causes of action were dismissed without prejudice and
subsequently the SDPOA filed a state court action SDPOA v Aguirre et aI Superior Court of
San Diego County Case No GIC 841845 After filing this state court lawsuit the SDPOA
dismissed it on December 9 2009 through its attorney Michael Conger who is also the
SDPOAs attorney of record in the present legal malpractice lawsuit Thus state law remedies
which had they been successfully prosecuted would have obviated any claim of damage by the
SDPOA were voluntarily relinquished by the SDPOA when it dismissed its state court lawsuit
Stated otherwise because the SDPOA voluntarily terminated its lawsuit asserting the
state law claims regarding the vesting of the retirement health benefits the SDPOA is now
precluded from asserting any act or omission by the defendants in the present matter caused it
any injury Because the SDPOA chose to dismiss its state claims their eventual outcome is
necessarily in the realm of speculation and conjecture and the SDPOAs present claim fails
Finally the SDPOA cannot seriously assert that it knows what motivated the City or that
the City would not have taken other steps to reduce its exposure for pay andor retirement
benefits if only some fact had been presented or some argument made As this court wells
knows as a result of pension liabilities the City was facing a deficit that exceeded one billion
dollars Simply put the SDPOA cannot show that but for the defendants alleged negligence
it is more likely than not that the courts in the underlying litigation matters would have reached
different conclusions or that these court decisions caused the City to reduce the compensation to
the SDPOAs members when the City had already stated before the underlying litigation
matters were filed that it intended to do so The SDPOA lawsuit fails as a matter of law and
should be dismissed
Defendant Petersens Demurrer To Complaint
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II
STATEMENT OF FACTS
On March 29 2010 the SDPOA filed its present legal malpractice lawsuit against the
JDTP law firm and two attorneys - Petersen and Mohamed Alim Ahmad Malik - asserting a
single cause of action labeled Attorney Malpractice The SDPOA alleges the defendants
represented it in underlying litigation against the City identified as SDPOA v Aguirre et al and
McGuigan v City oSan Diego et al (See Complaint ~ 9) The SDPOAs complaint alleges
nine generally described breaches of the duty of care such as the failure to present sufficient
evidence to prevail on the retiree health claim in SDPOA v Aguirre et al even though such
evidence existed resulting in a reduction of retiree heaith benefits to SDPOA members (Id at
~ 11(b)) As a result of these and the other alleged breaches of the duty of care the SDPOA
seeks damages including the fees it paid to the JDTP law firm in the underlying litigation (Jd
at ~ 11(b))
The SDPOAs bare bones complaint omits several key chronological facts that are
dispositive of its claims against Petersen
(1) The McGuigan court entered judgment on the SDPOAs claims in December
2006
(2) The Aguirre court entered summary judgment in favor of the City defendants and
against the SDPOA in May 2007
(3) Petersen left the JDTP law firm in March 2008 and his attorney-client
relationship with the SDPOA terminated then
Indeed the fact that Petersen left the JDTP law firm in March 2008 is patently obvious
from an April 2008 order entered by the United States District Court Southern District of
California in Aaron et a v Aguirre et at (Aaron) Case No 06-CV -1451 a related health
benefits litigation matter filed by approximately 1800 SDPOA members In Aaron the District
Court entered an order in April 2008 requiring each of the approximately 1800 plaintiffs to sign
a substitution of attorney stating whether he or she was represented by Petersen and the Petersen
Law Firm or the JDTP law firm or someone else (RJN Exh 2)
Defendant Petersens Demurrer To Complaint
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OC4 62991 v I
In other words court records firmly establish that the SDPOAs cause ofact10n for legal
malpractice against Petersen accrued no later than March 2008 As of March 2008 the SDPOA
had alleged suffered actual harm as a result of Petersens malpractice and he was not longer
representing it Accordingly the one year statute for any claim the SDPOA had against Petersen
for legal malpractice arising from the McGuigan and Aguirre matters commenced to run in
March 2008 Because the SDPOA did not file this lawsuit until March 29 2010 its claim for
legal malpractice against Petersen is time barred by Section 3406
III
DEMURRER IS PROPER WHERE ACTION IS BARRED
BY STATUTE OF LIMITATIONS
The party against whom a complaint has been filed may object by demurrer as
provided in Section 43030 to the pleading on the grounds that [tJhe pleading does not
state facts sufficient to constitute a cause of action (Code Civ Proc sect 43010 subd (e))
When the plaintiffs action is barred by the statute of limitations a general demurrer (ie
the pleading does not state facts sufficient to constitute a cause of action) is proper (Saliter v
Pierce Bros lvfortuaries (1978) 81 CaLApp3d 292300 fn 2 Iverson Yoakum Papiano amp
Hatch v Berwald (1999) 76 CalApp4th 990 995)
A demurrer is also appropriate if a pleading does not state facts sufficient to constitute a
cause of action Code Civ Proc sect 430l0e) Bockrath v Aldrich Chemical Co (1999) 21
Ca14th 7183 Here the SDPOA cannot state facts to support the causation and damages
elements of its legal malpractice cause of action Although a court must on demurrer accept as
true properly pleaded facts a demurrer does not admit contentions or conclusions of law or fact
freeman v San Diego Ass n ofRealtors (l999) 77 CaLApp4th 71 185 n 11
Under Section 43030 a demurrer can also be based on matter subject to judicial notice
is properly based on any matter of which the court is required to or may take judicial notice
(Code Civ Proc sect 43030 subd (a)) Under Evidence Code section 452(d) the court can take
judicial notice of the court records of any court of record of the United States (Evid Code sect
Defendant Petersens Demurrer To Complaint
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452(d))4 When court records subject to judicial notice disclose an absolute defense to the action
or a deficiency in the complaint the matter can be adjudicated at by way of demurrer
(Bistawros v Greenberg (1987) 189 CalApp3d 189 192 [court took judicial notice of its own
files in sustaining demurrer on ground of another action pending between same parties on same
cause1 see also Frornrnhagen v Board ofSupervisors ofSanta Cruz County (1987) 197
Ca1App3d 1292 1299 [court took judicial notice of complaint in prior action] Britz Inc v
Dow Chern Co (1999) 73 CalAppAth 177 180 [in ruling on demurrer court could take judicial
notice of prior order approving good faith settlement under Code of Civil Procedure sect 8776])
Here defendant Petersen requests that this court take judicial notice pursuant to Evidence
Code section 452(d) of the court records including court orders in the underlying actions on
which the SDPOAs present legal malpractice claims are based namely San Diego Police
Officers Association v Aguirre et al USDC Case No 05-CV -1581 McGuigan v City ofSan
Diego San Diego County Case No OIC 949883 and the action by the SDPOAs members
Aaron et al v Aguirre et at (Aaron) USDC Case No 06-CV -1451
These court records establish that as of March 2008 the SDPOA had allegedly suffered
actual injury and its attorney-client relationship with Petersen terminated Accordingly as of
March 2008 the one year statute commenced to run The SDPOAs failure to file its lawsuit
against Petersen within one year of March 2008 means its claim against him is now time barred
IV
THE ENTIRE ACTION AGAINST PETERSEN IS BARRED
BY CODE OF CIVIL PROCEDURE SECTION 3406
A The One Year Statute of Limitations Set Forth In Section 3406 Applies To
The SDPOAs Claims
The SDPOAs claims against Petersen are barred by the one year statute of limitations set
forth in Section 3406 which is the statute of limitations for all actions against attorneys for
4 Evidence Code section 452 provides as follows Judicial notice may be taken ofthe following matters (~~J (d) Records of (1) any court of this state or (2) any court of record of the United States
Defendant Petersens Demurrer To Complaint
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alleged wrongful acts or omissions arising out of the rendition of professional services
(Crowley v Katleman (1994) 8 Ca14th 666681-682) Section 3406 states
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 ofthe wrongful act or omission whichever occurs first (Code Civ Proc sect 3406(a))
Where an attorney has been accused of wrongful conduct the courts recognize that
regardless of the labels attached to the pleadings allegations the gravamen of the complaint is
legal malpractice (Kracht v Perrin Gartland amp Doyle (1990) 219 CalApp3d 1019 1022-1023
(Kracht) [complaint for breach of statutory duty constructive fraud and ordinary negligence
treated as malpractice claim for purposes of upholding order sustaining demurrer without leave
to amend] Jackson v Rogers amp Wells (1989) 210 CaLApp3d 336346349 [fraud and breach of
contract theories where alleged misfeasance Were acts requiring professional judgment calls
treated as malpractice claims for assignability purposes]) California case law treats all actions
arising out of the wrongful acts or omissions of attorneys as falling under the umbrella of legal
malpractice (Pompilio v Kosmo Cho amp Brown (1995) 39 CalAppAth 1324 1329 [plaintiffs
breach of fiduciary duty cause of action for attorneys errors and omissions sounds in legal
malpractice] see also Levin v Graham amp James (1995) 37 CalAppAth 798 Thompson v
Halvonik (1995) 36 CalAppAth 657664 Jacoby v Schenkel (1995) 36 CalAppAth 1701
Radovich v Locke-Paddon (1995) 35 CalAppAth 946 966 Stoll v Superior Court (1992) 9
CalAppAth 1362 1368)
Put simply when the claim concerns an alleged injury arising by reason of an attorneys
professional negligence the claim is one for legal malpractice subject to the statute of limitations
set forth in Section 3406 (Kracht 219 CaLApp3d at pp 1022-1023) Here the thrust of the
SDPOAs claim is that the Defendants including Petersen negligently handled the underlying
litigation (Complaint ~20) The complaints allegations plainly establish that the SDPOA is
suing Defendants for alleged errors and omissions arising from the provision oflegal services
Defendant Petersens Demurrer To Complaint
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with respect to underlying litigation Thus the applicable statute of limitations is Section 3406
(Kracht 219 CalApp3d at pp 1022-1023)
B The SDPOA Suffered Actual Injury When The Underlying Trial Courts
Entered Judgment Against It In The Underlying Litigation Matters
The California Supreme Court has made it clear that [a]ctual injury occurs when the
client suffers any loss or injury legally cognizable as damages in a legal malpractice action based
on the asserted errors or omissions (Jordache Enterprises Inc v Brobeck Phleger and
Harrison (1998) 18 Cal4th 739 743 (Jordache)) The Jordache court determined that the loss
or diminution of a right or remedy constitutes injury or damage Neither uncertainty of amount
nor difficulty of proof renders that injury speculative or inchoate (fd at p 744) As explained
by the Supreme Court in determining actual injury the inquiry necessarily is more qualitative
than quantitative because the fact of damage rather than the amount is the critical factor (Id
at p 752)
In Jordache the plaintiff alleged that the defendant committed malpractice by failing to
advise the plaintiff to tender a complaint filed against it to its insurance carrier (fd at p 746)
As a result of the defendants omission significant time passed before the plaintiff tendered the
complaint to the insurer (Id at p 745) The insurance carrier argued that the plaintiffs late
tender relieved its obligation to provide benefits (Ibid) The plaintiff initiated litigation against
the insurer regarding the coverage issue and the viability of the insurers late tender defense
(Ibid) The plaintiff did not file its professional malpractice claim against the defendant until
after resolution of the coverage litigation (fd at p 746)
In evaluating when the actual injury occurred under Section 3406 the California
Supreme Court concluded that in addition to incurring legal fees to prosecute the coverage
dispute the defendants alleged omissions also gave the insurers an objectively viable defense
which consequently reduced those [insurance] claims settlement value (Id at p 743)
Because the insurers objection rendered the plaintiffs claims immediately less valuable than
they were prior to the assertion of such defense and because the defense arose as a result of the
plaintiffs counsels omission the plaintiff was actually injured within the meaning of Section
Defendant Petersens Demurrer To Complaint
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3406 at the time the insurers defense was asserted (ld at pp 743-744) It does not matter
whether a plaintiff is able to quantify the amount by which its claims were devalued at the time
such a defense accrued and was asserted because actual injury may well precede quantifiable
financial costs (Adams v Paul (1995) 11 CaL4th 583 591 fn 5)
Thus under Jordache the test for actual injury under section 3406 therefore is
whether the plaintiff has sustained any damages compensable in an action against an attorney
for a wrongful act or omission arising in the performance of professional services (Jordache
18 CaL4th at p 751)
With respect to the present case the SDPOA suffered actual injury in the underlying
litigation matters when the trial courts entered judgment against the SDPOA Thus it suffered
actual injury in the McGuigan matter in December 2006 and it suffered actual injury in the
Aguirre matter in May 2007
c The SDPOA Discovered The Alleged Injuries In December 2006 and May
2007
To constitute discovery as that term is used in Section 3406 a plaintiff need only be
apprised of the fact that someone has done a wrong - plaintiff need not have a legal theory or
knowledge that he has a cause of action against an attorney at that point (McGee v Weinberg
(1979) 97 CaLApp3d 798 (lvfcGee) Worton v Worton (1991) 234 CaLApp3d 1368)
Discovery for purposes of triggering the commencement of the limitations period under Section
3406 occurs when the client discovered or should have discovered the facts giving rise to a
cause of action for legal malpractice As noted by the McGee court The test is whether the
plaintiff has information of circumstances sufficient to put a reasonable person on inquiry or has
the opportunity to obtain knowledge from sources open to his or her investigation (McGee 97
CaLApp3d at p 798)
Here the SDPOA knew it had lost the McGuigan case in December 2006 and the
Aguirre case in May 2007 The SDPOA also knew that its attorney client relationship with
Petersen terminated in March 2008 when he left the JDTP law firm
Defendant Petersens Demurrer To Complaint
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Thus as of March 2008 the SDPOA had information sufficient to put a reasonable
person on inquiry The possibility that the SDPOA may not have understood or that their
attorneys at JDTP may not have told them of all of the significance of Petersens departure from
the JDTP law firm (eg the commencement of the statute as to any claims against Petersen) does
not alter the fact that the SDPOA discovered (or should have discovered) the facts which gave
rise to their legal malpractice claims against Petersen no later than March 3 2008
D Plaintiffs Suffered Actual Injury More Than One Year Before Filing Their
Complaint And The Statute of Limitations Has Not Been Tolled
Under Code of Civil Procedure section 3406 an action must be commenced one year
from discovery unless tolled because among other things the attorney continues to represent the
plaintiff regarding the specific subject matter in which the alleged act or omission occurred
(Code Civ Proc sect 3406) In this case there is no dispute that Petersens representation of the
SDPOA terminated in March 2008 when he left the JDTP law firm and ceased his representation
of the SDPOA As such there is no tolling ofthe statute in this situation for continuous
representation The present situation is somewhat analogous to Beal Bank SSB v Arter amp
Hadden LLP (2007) 42 Ca14th 503 (Beal Bank)
Beal Bank acquired loans that contained default provisions and retained the AampH law
firm to handle the collection efforts The attorney handling the matter left the AampH law firm and
the attorneys new firm took over Beal Banks representation When the collections efforts were
unsuccessful Beal Bank sued the AampH law firm and the new law firm The AampH law firm
demurred to the malpractice complaint on the theory that when the lawyer left and took the client
with him there was no need to continue to toll the statute of limitations against the AampH law
firm due to continued representation The Supreme Court agreed and held that once the case
leaves the firm the representation of the prior firm ceases and the statute of limitations clock
begins to tick against the prior firm (Beal Bank 42 Ca14th at pp 512-514)
The Supreme Court recognized that this situation may require malpractice plaintiffs to
move swiftly and perhaps act in filing a lawsuit before the underlying action was resolved but
the Supreme Court did not let this concern affect its reasoning regarding when continuous
Defendant Petersens Demurrer To Complaint
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representation tolling ceases Here the clock for the SDPOAs malpractice claims against
Petersen commenced to tick in March 2008 when he left the JDTP law firm The SDPOA did
not file its action against Petersen within one year of March 2008 and therefore its legal
malpractice claim against him is time barred
The SDPOA may argue that because it appealed from the District Court and Superior
Courts orders in the underlying Aguirre and ~McGuigan litigation matters the statute of
limitations did not commence to run until the decisions on those appeals were rendered This
argument lacks merit and was rejected by the Jordache court when it determined that a causal
nexus between the injury and the malpractice does not need to be confirmed by settlement or
adjudication (Jordache 18 Cal4th at p 744) The Supreme Court reasoned that an existing
injury is not contingent or speculative simply because future events may effect its permanency or
the amount of monetary damages eventually incurred (fd at p 754)
Thus even if the SDPOA did not know whether future events (ie their appeals) may
effect the permanency of their injury (eg ruling that retiree benefits were not vested-
Complaint at 20) they still had suffered actual injury when the District Court and Superior Court
ruled against them and any tolling of the statute of limitations ended when Petersen departed the
JDTP law firm and his attorney-client relationship with the SDPOA terminated The fact that
appeals were still pending when he departed the JDTP law firm is of no consequence because in
determining actual injury the inquiry necessarily is more qualitative than quantitative because
the fact of damage rather than the amount is the critical factor (fd at p 752) The limitations
period is not tolled even ifthe injury is in some way remediable and appreciable actual injury
does not depend on the plaintiffs ability to attribute a quantifiable sum of money to
consequential damages (Jordache 18 Ca14th at p 750)
Here the underlying court records show Petersen no longer represented the SDPOA after
March 2008 The SDPOAs complaint offers no facts that would toll Section 3406 after the one
year limitations period commenced in March 2008 Because the SDPOA did not file this action
until March 29 2010 its claims against Petersen are time barred and this demurrer should be
sustained without leave to amend as to Petersen
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Defendant Petersens Demurrer To Complaint
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OC46299lvl
V
PETERSENS DEMURRER SHOULD ALSO BE SUSTAINED BECAUSE THE SDPOA
HAS NOT PLEADED AND CANNOT PLEAD FACTS IN SUPPORT OF THE
CAUSATION AND DAMAGES ELEMENTS OF A CAUSES OF ACTION FOR LEGAL
MALPRACTICE
A To Prevail On A Claim For Legal Malpractice the Plaintiff Must Plead and
Prove the Defendant Caused the Plaintiffs Harm
The elements of a cause of action for professional negligence are (l) the duty ofthe
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 See ShopofJ amp Cavallo LLP v Hyon (2008) 167 CalApp4th 1489
1509 A claim for breach of contract also requires the plaintiff to prove that the defendants
breach caused the plaintiff to suffer damages See St Paul Fire amp Marin Ins Co v American
Dynasty Surplus Lines Ins Co (2002) 101 CaJApp4th 1038 1060 (An essential element of a
claim for breach of contract are damages resulting from the breach Causation ofdamages in
contract cases requires that the damages be proximately caused by the defendants breach)
The same causation test applies to both professional negligence and breach of contract claims
See Vasiion Therapeutics Inc v Foley amp Lardner LLP (SDCai 2008) 2008 WL 5147201 3 5
It is well settled that if the attorneys negligent conduct does not cause damage it
generates no cause of the action See ShopojJ 167 CaJApp4th at 1509 To show damages
proximately caused by the breach the pJaintiffmust demonstrate that but for the attorneys
malpractice it is more likely than not the plaintiff would have obtained a more favorable result
(d) See also Viner 30 Ca14th at 1240-43 Unless a party suffers damage as a consequence of
his attorneys negligence he cannot establish a cause of action for malpractice Breach of duty
causing only speculative harm is insufficient to create such a cause of action [D]amages may
5 SDPOA labels its claim as one for attorney malpractice and thus it is not clear if it intends to pursue a negligence theory a breach of contract theory or both See Complaint p 6 Regardless of whether the SDPOA pursues a tort or contract claim the same causation standard applies
-15shy----~---- ~----~~-~--~~~---------~------
Defendant Petersens Demurrer To Complaint
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OC462991 v J
not be based upon sheer speculation or surmise and the mere possibility or even probability that
damage will result from wrongful conduct does not render it actionable Thompson v Halvonik
(1995) 36 CalAppAth 657 661-62
As the California Supreme Court made clear in the seminal Viner case the crucial
causation inquiry is what would have happened if the defendant attorney had not been negligent
This is so because the very idea of causation necessarily involves comparing historical events to
a hypothetical alternative Viner 30 CaL4th at 1242 (emphasis in original) Although the label
of the test may differ from case to case the rule underlying the test is always the same to
prevail on a malpractice claim the plaintiff must demonstrate that the attorneys negligence
caused the plaintiffs harm See Viner at 1240 n 4 (noting that the causation inquiry is also
sometimes described as the case within the case or the trial within the trial)
B Causation in a Legal Malpractice Case is Appropriately Treated as an Issue
of Law Rather Than Fact When the Underlying Litigation Was Decided
Based on a Question of Law
The element of causation in a legal malpractice case is treated as an issue of law which
the underlying litigation was decided on a question of law As one California court has
explained no jury can reach its own judgment on the proper outcome of an earlier case that
hinged on an issue of law Piscitelli v Friedenberg (2001) 87 CalAppAh 953 974 quoting
with approval from Chocktoot v Smith (Ore 1977) 571 P2d 1255 1258 see also id at 971
(explaining that [i]n legal malpractice cases whether a court or jury decides the underlying
case-within-a-case [turns on] whether the issues are predominantly questions of fact or law)
C The SDPOA Cannot Establish That Had Defendants Made a Different
Argument the Plaintiff Would Have Obtained a More Favorable Outcome
The SDPOAs causation allegation against Petersen is not merely tenuous it is nonshy
existent First the SDPOA alleges that it was adversely affected before the lawsuit was filed and
Defendants were retained when the City implemented its last bet final offer at the bargaining
table which had the effect of reducing retirement health benefit As a matter of law Petersen is
not the cause of the Citys bargaining position Moreover the underlying litigation on which the
Defendant Petersens Demurrer To Complaint
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OCI46299I v I
SDPOAs legal malpractice claims are based were part of the SDPOAs response to the Citys
reduction of the health benefits
Second Plaintiff argues that because the Defendants did not put on evidence of some
unidentified and undisputed facts or make unidentifled arguments or cite unidentified precedent
the trial courts in those matters wrongly decided issues concerning whether the SDPOAs
members retirement health benefits were vested
Whether retirement health benefits were vested under the federal law at issue in the
underlying litigation was a contested issue of law the opposing parties in the underlying action
were represented by very able counsel (the law firms of Latham amp Watkins and Seltzer Caplan
McMahon Vitek) and the legal issues were before and decided by judges after extensive
litigation briefing and argument After considering the law those judges unanimously ruled that
as a matter of law the benefits were not vested The SDPOA cannot possibly satisfy its burden
of proving by a preponderance of the evidence that this legal result was the fault of the
defendants ie that had the defendants only done something different it is more likely than not
that the questions of federal law in the underlying litigation would have been resolved
differently See Shopof[ 167 CalApp4th at 1509 Viner 30 Ca14th at 1240-43 Stated
differently whether the SDPOAs complaint is pure speculation - which it is - is a question of
law for this Court in this demurrer
In addition the same fatal flaw arises because the SDPOA through their present attorney
dismissed its state law claims The SDPOAs voluntary dismissal of its state law claims
precludes it from making the current legal malpractice claim By dismissing those claims the
SDPOA made it impossible to demonstrate but for causation in this case If the SDPOA
suffered any harm it has been on account of its own voluntary actions that have nothing to do
with Petersen and the claims alleged against him here
Lastly it is frivolous for Plaintiff to contend that the Defendants should bear
responsibility for the Citys decision to amend its Municipal Code and impose an $8800 cap on
annual retirement health benefits These Defendants have no control over the City and are not a
-17shyDefendant Petersens Demurrer To Complaint
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1 cause of the Citys own financial predicament and did not cause the City to decide to reduce the
2 SDPOAs members benefits before the underlying lawsuits had even been filed
3 VI
4 CONCLUSION
As discussed above there are at least two reasons why this demurrer should be sustained
6 without leave to amend First the SDPOAs complaint and court records from the underlying
7 litigation firmly establish that the SDPOAs claim against defendant Petersen is barred by the
8 one year statute of limitations applicable to legal malpractice actions Second the SDPOAs
9 allegations also firmly establish that Petersen did not cause the SDPOA any damage as a matter
oflaw
11 For these reasons defendant Petersens demurrer to Plaintiffs complaint should be
12 sustained Moreover because no amendment will change this result this demurrer should be
13 sustained without leave to amend
14
DATED May 142010 SEDGWICK DETERT MORAN amp ARNOLD LLP
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By1~~tra18 Gregory H Halliday
Frederick B Hayes 19 Attorneys for Defendant
GREGORY GLENN PETERSEN
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OC46299 I v I 8shyDefendant Petersens Demurrer To Complaint
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PROOF OF SERVICE
San Diego Police Officers Association v Jackson Deivfarco Tidus amp Peckenpaugh et al San Diego Superior Court Case No 37-2010-00088794-CU-PN-CTL
I am a resident of the State of California over the age of eighteen years and not a party to the within action My business address is Sedgwick Detert Moran amp Arnold LLP 3 Park Plaza 17th Floor Irvine California 92614middot8540 On May 142010 I served the within document(s)
DEFENDANT GREGORY GLENN PETERSENS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS COMPLAINT MEMORANDUM OF POINTS AND
AUTHORITIES
o FACSIMILEmiddot by transmitting via facsimile the document(s) listed above to the fax number(s) set forth on the attached Telecommunications Cover Page(s) on this date before 500 pm
MAILmiddot by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid in the United States mail at Irvine California addressed as set forth below
PERSONAL SERVICE - by personally delivering the document(s) listed above to the persltm(s) at the addressees) set forth below
o OVERNIGHT COURIER - by placing the document(s) listed above in a sealed envelope with shipping prepaid and depositing in a collection box for next day delivery to the person(s) at the addressees) set forth below via OverNite Express
SEE ATTACHED LIST
I am readily familiar with the finns practice of collection and processing correspondence for mailing Under that practice it would be deposited with the US Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business I am aware that on motion of the party served service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit
I declare under penalty of perjury under the laws of the State of California that the above is true and correct Executed on May 142010 at Irvine California
OCI463303v I
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San Diego Police Officers Association v Jackson Ddvfarco Tidus amp Peckenpaugh et ai SDSC Case No 37-2010-00088794-CU-PN-CTL
2 ProofofService shy Page 2
3
4 I Michael A Conger Esq AhUUltys for Plaintiff Law Office of Michael A Conger San Diego Police Officers Association 16236 San Dieguito Road Suite 4-14 PO Box 9374 (858) 759-0200 - telephone
6 Rancho Santa Fe CA 92067 (858) 759-1906 facsimile congermike(aJaoLcom
7 Gregory A Long Esq Attorneys for Defendants
8 Sheppard Mullin Richter amp Hampton LLP Jackson DeMarco Tidus amp Peckenpaugh 333 S Hope Street 48 th Floor
9 Los Angeles CA 90071 (213) 617-5443 phone (213) 620-1398 - facsimile
Iglongsheppardmullincom
11 Matthew W Holder Esq
12 Sheppard Mullin Richter amp HamptonLLP 12275 EI Camino Real Suite 200
13 San Diego CA 92130-2006
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OC463303v I
Attorneys for Defendants Jackson DeMarco Tidus amp Peckenpaugh
(858) 720-8900 - phone (858) 509-3691 facsimile mholdersheppardmullincom
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OC46299 I y I
March 2010 more than two years after Petersens attorney-client relationship with the SDPOA
ended it is time barred by Section 3406 Because no amendment can change this result
Petersens demurrer should be sustained without leave to amend
In addition to being time-barred the SDPOAs legal malpractice action also fails as a
matter of law because the SDPOA cannot meet the causation and damages elements of its
malpractice claim In particular the SDPOA cannot establish that but for the alleged legal
malpractice it is more likely than not that the SDPOA would have achieved a more favorable
outcome Viner v Sweet (2003) 30 Ca14th 1232 1240-1243 (Viner) The purpose of this
requirement which has been in use for more than 120 years is to safeguard against speculative
and conjectural claims Viner 30 CaL4th at p 1241 citing Matteo Forge Inc v Arthur Young
amp Co (1997) 52 CalAppAth 820 832-834 This requirement serves the essential purpose of
ensuring that damages awarded for an attorneys malpractice actually -were caused by the
malpractice Matteo Forge Inc v Arthur Young amp Co supra 52 CalAppAth at p 834 In this
case the SDPOAs failure to allege facts showing that but for the alleged negligence a
different result would have been obtained is another reason why the SDPOAs complaint fails to
state sufficient facts to constitute a cause of action against Petersen
In the underlying lawsuits the SDPOA argued that retirement health benefits were vested
and therefore the City could not unilaterally modify those benefits In this legal malpractice
lawsuit the SDPOA alleges that the defendant attorneys did a poor job of presenting the vested
retirement benefits issue to the courts The SDPOA further alleges that the defendant attorneys
malpractice caused the courts in the underlying litigation matters to rule against the SDPOA in
those cases In making these allegations the SDPOA does not identify a single negligent act or
omission and the SDPOAs silence on this point is telling
The fatal defect inherent in the SDPOAs present action is that it cannot plead or
establish that the defendant attorneys caused the SDPOA any harm In its complaint the
SDPOA speculates that it could have obtained a more favorable outcome had the defendant
attorneys merely done some unspecified act or presented some unidentified argument Whether
the retirement health benefits were vested under federal law is a legal question The SDPOAs
Defendant Petersens Demurrer To Complaint
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OC462991v 1
allegations fail to even hint at what fact or legal precedent or argument should have been
presented to the courts in the underlying actions to causes them to reach a different conclusion as
to whether under federal law the SDPOAs members retirement health benefits were vested
The SDPOAs inability to prove causation is also the result of the SDPOAs ovvD acts
Although the federal law claims brought by the SDPOA in the underlying litigation were
disposed of on their merits the state law causes of action were dismissed without prejudice and
subsequently the SDPOA filed a state court action SDPOA v Aguirre et aI Superior Court of
San Diego County Case No GIC 841845 After filing this state court lawsuit the SDPOA
dismissed it on December 9 2009 through its attorney Michael Conger who is also the
SDPOAs attorney of record in the present legal malpractice lawsuit Thus state law remedies
which had they been successfully prosecuted would have obviated any claim of damage by the
SDPOA were voluntarily relinquished by the SDPOA when it dismissed its state court lawsuit
Stated otherwise because the SDPOA voluntarily terminated its lawsuit asserting the
state law claims regarding the vesting of the retirement health benefits the SDPOA is now
precluded from asserting any act or omission by the defendants in the present matter caused it
any injury Because the SDPOA chose to dismiss its state claims their eventual outcome is
necessarily in the realm of speculation and conjecture and the SDPOAs present claim fails
Finally the SDPOA cannot seriously assert that it knows what motivated the City or that
the City would not have taken other steps to reduce its exposure for pay andor retirement
benefits if only some fact had been presented or some argument made As this court wells
knows as a result of pension liabilities the City was facing a deficit that exceeded one billion
dollars Simply put the SDPOA cannot show that but for the defendants alleged negligence
it is more likely than not that the courts in the underlying litigation matters would have reached
different conclusions or that these court decisions caused the City to reduce the compensation to
the SDPOAs members when the City had already stated before the underlying litigation
matters were filed that it intended to do so The SDPOA lawsuit fails as a matter of law and
should be dismissed
Defendant Petersens Demurrer To Complaint
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OC46299]vj
II
STATEMENT OF FACTS
On March 29 2010 the SDPOA filed its present legal malpractice lawsuit against the
JDTP law firm and two attorneys - Petersen and Mohamed Alim Ahmad Malik - asserting a
single cause of action labeled Attorney Malpractice The SDPOA alleges the defendants
represented it in underlying litigation against the City identified as SDPOA v Aguirre et al and
McGuigan v City oSan Diego et al (See Complaint ~ 9) The SDPOAs complaint alleges
nine generally described breaches of the duty of care such as the failure to present sufficient
evidence to prevail on the retiree health claim in SDPOA v Aguirre et al even though such
evidence existed resulting in a reduction of retiree heaith benefits to SDPOA members (Id at
~ 11(b)) As a result of these and the other alleged breaches of the duty of care the SDPOA
seeks damages including the fees it paid to the JDTP law firm in the underlying litigation (Jd
at ~ 11(b))
The SDPOAs bare bones complaint omits several key chronological facts that are
dispositive of its claims against Petersen
(1) The McGuigan court entered judgment on the SDPOAs claims in December
2006
(2) The Aguirre court entered summary judgment in favor of the City defendants and
against the SDPOA in May 2007
(3) Petersen left the JDTP law firm in March 2008 and his attorney-client
relationship with the SDPOA terminated then
Indeed the fact that Petersen left the JDTP law firm in March 2008 is patently obvious
from an April 2008 order entered by the United States District Court Southern District of
California in Aaron et a v Aguirre et at (Aaron) Case No 06-CV -1451 a related health
benefits litigation matter filed by approximately 1800 SDPOA members In Aaron the District
Court entered an order in April 2008 requiring each of the approximately 1800 plaintiffs to sign
a substitution of attorney stating whether he or she was represented by Petersen and the Petersen
Law Firm or the JDTP law firm or someone else (RJN Exh 2)
Defendant Petersens Demurrer To Complaint
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OC4 62991 v I
In other words court records firmly establish that the SDPOAs cause ofact10n for legal
malpractice against Petersen accrued no later than March 2008 As of March 2008 the SDPOA
had alleged suffered actual harm as a result of Petersens malpractice and he was not longer
representing it Accordingly the one year statute for any claim the SDPOA had against Petersen
for legal malpractice arising from the McGuigan and Aguirre matters commenced to run in
March 2008 Because the SDPOA did not file this lawsuit until March 29 2010 its claim for
legal malpractice against Petersen is time barred by Section 3406
III
DEMURRER IS PROPER WHERE ACTION IS BARRED
BY STATUTE OF LIMITATIONS
The party against whom a complaint has been filed may object by demurrer as
provided in Section 43030 to the pleading on the grounds that [tJhe pleading does not
state facts sufficient to constitute a cause of action (Code Civ Proc sect 43010 subd (e))
When the plaintiffs action is barred by the statute of limitations a general demurrer (ie
the pleading does not state facts sufficient to constitute a cause of action) is proper (Saliter v
Pierce Bros lvfortuaries (1978) 81 CaLApp3d 292300 fn 2 Iverson Yoakum Papiano amp
Hatch v Berwald (1999) 76 CalApp4th 990 995)
A demurrer is also appropriate if a pleading does not state facts sufficient to constitute a
cause of action Code Civ Proc sect 430l0e) Bockrath v Aldrich Chemical Co (1999) 21
Ca14th 7183 Here the SDPOA cannot state facts to support the causation and damages
elements of its legal malpractice cause of action Although a court must on demurrer accept as
true properly pleaded facts a demurrer does not admit contentions or conclusions of law or fact
freeman v San Diego Ass n ofRealtors (l999) 77 CaLApp4th 71 185 n 11
Under Section 43030 a demurrer can also be based on matter subject to judicial notice
is properly based on any matter of which the court is required to or may take judicial notice
(Code Civ Proc sect 43030 subd (a)) Under Evidence Code section 452(d) the court can take
judicial notice of the court records of any court of record of the United States (Evid Code sect
Defendant Petersens Demurrer To Complaint
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OC46299 I v I
452(d))4 When court records subject to judicial notice disclose an absolute defense to the action
or a deficiency in the complaint the matter can be adjudicated at by way of demurrer
(Bistawros v Greenberg (1987) 189 CalApp3d 189 192 [court took judicial notice of its own
files in sustaining demurrer on ground of another action pending between same parties on same
cause1 see also Frornrnhagen v Board ofSupervisors ofSanta Cruz County (1987) 197
Ca1App3d 1292 1299 [court took judicial notice of complaint in prior action] Britz Inc v
Dow Chern Co (1999) 73 CalAppAth 177 180 [in ruling on demurrer court could take judicial
notice of prior order approving good faith settlement under Code of Civil Procedure sect 8776])
Here defendant Petersen requests that this court take judicial notice pursuant to Evidence
Code section 452(d) of the court records including court orders in the underlying actions on
which the SDPOAs present legal malpractice claims are based namely San Diego Police
Officers Association v Aguirre et al USDC Case No 05-CV -1581 McGuigan v City ofSan
Diego San Diego County Case No OIC 949883 and the action by the SDPOAs members
Aaron et al v Aguirre et at (Aaron) USDC Case No 06-CV -1451
These court records establish that as of March 2008 the SDPOA had allegedly suffered
actual injury and its attorney-client relationship with Petersen terminated Accordingly as of
March 2008 the one year statute commenced to run The SDPOAs failure to file its lawsuit
against Petersen within one year of March 2008 means its claim against him is now time barred
IV
THE ENTIRE ACTION AGAINST PETERSEN IS BARRED
BY CODE OF CIVIL PROCEDURE SECTION 3406
A The One Year Statute of Limitations Set Forth In Section 3406 Applies To
The SDPOAs Claims
The SDPOAs claims against Petersen are barred by the one year statute of limitations set
forth in Section 3406 which is the statute of limitations for all actions against attorneys for
4 Evidence Code section 452 provides as follows Judicial notice may be taken ofthe following matters (~~J (d) Records of (1) any court of this state or (2) any court of record of the United States
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0CI462991vl
alleged wrongful acts or omissions arising out of the rendition of professional services
(Crowley v Katleman (1994) 8 Ca14th 666681-682) Section 3406 states
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 ofthe wrongful act or omission whichever occurs first (Code Civ Proc sect 3406(a))
Where an attorney has been accused of wrongful conduct the courts recognize that
regardless of the labels attached to the pleadings allegations the gravamen of the complaint is
legal malpractice (Kracht v Perrin Gartland amp Doyle (1990) 219 CalApp3d 1019 1022-1023
(Kracht) [complaint for breach of statutory duty constructive fraud and ordinary negligence
treated as malpractice claim for purposes of upholding order sustaining demurrer without leave
to amend] Jackson v Rogers amp Wells (1989) 210 CaLApp3d 336346349 [fraud and breach of
contract theories where alleged misfeasance Were acts requiring professional judgment calls
treated as malpractice claims for assignability purposes]) California case law treats all actions
arising out of the wrongful acts or omissions of attorneys as falling under the umbrella of legal
malpractice (Pompilio v Kosmo Cho amp Brown (1995) 39 CalAppAth 1324 1329 [plaintiffs
breach of fiduciary duty cause of action for attorneys errors and omissions sounds in legal
malpractice] see also Levin v Graham amp James (1995) 37 CalAppAth 798 Thompson v
Halvonik (1995) 36 CalAppAth 657664 Jacoby v Schenkel (1995) 36 CalAppAth 1701
Radovich v Locke-Paddon (1995) 35 CalAppAth 946 966 Stoll v Superior Court (1992) 9
CalAppAth 1362 1368)
Put simply when the claim concerns an alleged injury arising by reason of an attorneys
professional negligence the claim is one for legal malpractice subject to the statute of limitations
set forth in Section 3406 (Kracht 219 CaLApp3d at pp 1022-1023) Here the thrust of the
SDPOAs claim is that the Defendants including Petersen negligently handled the underlying
litigation (Complaint ~20) The complaints allegations plainly establish that the SDPOA is
suing Defendants for alleged errors and omissions arising from the provision oflegal services
Defendant Petersens Demurrer To Complaint
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OC46299 IvI
with respect to underlying litigation Thus the applicable statute of limitations is Section 3406
(Kracht 219 CalApp3d at pp 1022-1023)
B The SDPOA Suffered Actual Injury When The Underlying Trial Courts
Entered Judgment Against It In The Underlying Litigation Matters
The California Supreme Court has made it clear that [a]ctual injury occurs when the
client suffers any loss or injury legally cognizable as damages in a legal malpractice action based
on the asserted errors or omissions (Jordache Enterprises Inc v Brobeck Phleger and
Harrison (1998) 18 Cal4th 739 743 (Jordache)) The Jordache court determined that the loss
or diminution of a right or remedy constitutes injury or damage Neither uncertainty of amount
nor difficulty of proof renders that injury speculative or inchoate (fd at p 744) As explained
by the Supreme Court in determining actual injury the inquiry necessarily is more qualitative
than quantitative because the fact of damage rather than the amount is the critical factor (Id
at p 752)
In Jordache the plaintiff alleged that the defendant committed malpractice by failing to
advise the plaintiff to tender a complaint filed against it to its insurance carrier (fd at p 746)
As a result of the defendants omission significant time passed before the plaintiff tendered the
complaint to the insurer (Id at p 745) The insurance carrier argued that the plaintiffs late
tender relieved its obligation to provide benefits (Ibid) The plaintiff initiated litigation against
the insurer regarding the coverage issue and the viability of the insurers late tender defense
(Ibid) The plaintiff did not file its professional malpractice claim against the defendant until
after resolution of the coverage litigation (fd at p 746)
In evaluating when the actual injury occurred under Section 3406 the California
Supreme Court concluded that in addition to incurring legal fees to prosecute the coverage
dispute the defendants alleged omissions also gave the insurers an objectively viable defense
which consequently reduced those [insurance] claims settlement value (Id at p 743)
Because the insurers objection rendered the plaintiffs claims immediately less valuable than
they were prior to the assertion of such defense and because the defense arose as a result of the
plaintiffs counsels omission the plaintiff was actually injured within the meaning of Section
Defendant Petersens Demurrer To Complaint
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3406 at the time the insurers defense was asserted (ld at pp 743-744) It does not matter
whether a plaintiff is able to quantify the amount by which its claims were devalued at the time
such a defense accrued and was asserted because actual injury may well precede quantifiable
financial costs (Adams v Paul (1995) 11 CaL4th 583 591 fn 5)
Thus under Jordache the test for actual injury under section 3406 therefore is
whether the plaintiff has sustained any damages compensable in an action against an attorney
for a wrongful act or omission arising in the performance of professional services (Jordache
18 CaL4th at p 751)
With respect to the present case the SDPOA suffered actual injury in the underlying
litigation matters when the trial courts entered judgment against the SDPOA Thus it suffered
actual injury in the McGuigan matter in December 2006 and it suffered actual injury in the
Aguirre matter in May 2007
c The SDPOA Discovered The Alleged Injuries In December 2006 and May
2007
To constitute discovery as that term is used in Section 3406 a plaintiff need only be
apprised of the fact that someone has done a wrong - plaintiff need not have a legal theory or
knowledge that he has a cause of action against an attorney at that point (McGee v Weinberg
(1979) 97 CaLApp3d 798 (lvfcGee) Worton v Worton (1991) 234 CaLApp3d 1368)
Discovery for purposes of triggering the commencement of the limitations period under Section
3406 occurs when the client discovered or should have discovered the facts giving rise to a
cause of action for legal malpractice As noted by the McGee court The test is whether the
plaintiff has information of circumstances sufficient to put a reasonable person on inquiry or has
the opportunity to obtain knowledge from sources open to his or her investigation (McGee 97
CaLApp3d at p 798)
Here the SDPOA knew it had lost the McGuigan case in December 2006 and the
Aguirre case in May 2007 The SDPOA also knew that its attorney client relationship with
Petersen terminated in March 2008 when he left the JDTP law firm
Defendant Petersens Demurrer To Complaint
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Thus as of March 2008 the SDPOA had information sufficient to put a reasonable
person on inquiry The possibility that the SDPOA may not have understood or that their
attorneys at JDTP may not have told them of all of the significance of Petersens departure from
the JDTP law firm (eg the commencement of the statute as to any claims against Petersen) does
not alter the fact that the SDPOA discovered (or should have discovered) the facts which gave
rise to their legal malpractice claims against Petersen no later than March 3 2008
D Plaintiffs Suffered Actual Injury More Than One Year Before Filing Their
Complaint And The Statute of Limitations Has Not Been Tolled
Under Code of Civil Procedure section 3406 an action must be commenced one year
from discovery unless tolled because among other things the attorney continues to represent the
plaintiff regarding the specific subject matter in which the alleged act or omission occurred
(Code Civ Proc sect 3406) In this case there is no dispute that Petersens representation of the
SDPOA terminated in March 2008 when he left the JDTP law firm and ceased his representation
of the SDPOA As such there is no tolling ofthe statute in this situation for continuous
representation The present situation is somewhat analogous to Beal Bank SSB v Arter amp
Hadden LLP (2007) 42 Ca14th 503 (Beal Bank)
Beal Bank acquired loans that contained default provisions and retained the AampH law
firm to handle the collection efforts The attorney handling the matter left the AampH law firm and
the attorneys new firm took over Beal Banks representation When the collections efforts were
unsuccessful Beal Bank sued the AampH law firm and the new law firm The AampH law firm
demurred to the malpractice complaint on the theory that when the lawyer left and took the client
with him there was no need to continue to toll the statute of limitations against the AampH law
firm due to continued representation The Supreme Court agreed and held that once the case
leaves the firm the representation of the prior firm ceases and the statute of limitations clock
begins to tick against the prior firm (Beal Bank 42 Ca14th at pp 512-514)
The Supreme Court recognized that this situation may require malpractice plaintiffs to
move swiftly and perhaps act in filing a lawsuit before the underlying action was resolved but
the Supreme Court did not let this concern affect its reasoning regarding when continuous
Defendant Petersens Demurrer To Complaint
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representation tolling ceases Here the clock for the SDPOAs malpractice claims against
Petersen commenced to tick in March 2008 when he left the JDTP law firm The SDPOA did
not file its action against Petersen within one year of March 2008 and therefore its legal
malpractice claim against him is time barred
The SDPOA may argue that because it appealed from the District Court and Superior
Courts orders in the underlying Aguirre and ~McGuigan litigation matters the statute of
limitations did not commence to run until the decisions on those appeals were rendered This
argument lacks merit and was rejected by the Jordache court when it determined that a causal
nexus between the injury and the malpractice does not need to be confirmed by settlement or
adjudication (Jordache 18 Cal4th at p 744) The Supreme Court reasoned that an existing
injury is not contingent or speculative simply because future events may effect its permanency or
the amount of monetary damages eventually incurred (fd at p 754)
Thus even if the SDPOA did not know whether future events (ie their appeals) may
effect the permanency of their injury (eg ruling that retiree benefits were not vested-
Complaint at 20) they still had suffered actual injury when the District Court and Superior Court
ruled against them and any tolling of the statute of limitations ended when Petersen departed the
JDTP law firm and his attorney-client relationship with the SDPOA terminated The fact that
appeals were still pending when he departed the JDTP law firm is of no consequence because in
determining actual injury the inquiry necessarily is more qualitative than quantitative because
the fact of damage rather than the amount is the critical factor (fd at p 752) The limitations
period is not tolled even ifthe injury is in some way remediable and appreciable actual injury
does not depend on the plaintiffs ability to attribute a quantifiable sum of money to
consequential damages (Jordache 18 Ca14th at p 750)
Here the underlying court records show Petersen no longer represented the SDPOA after
March 2008 The SDPOAs complaint offers no facts that would toll Section 3406 after the one
year limitations period commenced in March 2008 Because the SDPOA did not file this action
until March 29 2010 its claims against Petersen are time barred and this demurrer should be
sustained without leave to amend as to Petersen
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OC46299lvl
V
PETERSENS DEMURRER SHOULD ALSO BE SUSTAINED BECAUSE THE SDPOA
HAS NOT PLEADED AND CANNOT PLEAD FACTS IN SUPPORT OF THE
CAUSATION AND DAMAGES ELEMENTS OF A CAUSES OF ACTION FOR LEGAL
MALPRACTICE
A To Prevail On A Claim For Legal Malpractice the Plaintiff Must Plead and
Prove the Defendant Caused the Plaintiffs Harm
The elements of a cause of action for professional negligence are (l) the duty ofthe
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 See ShopofJ amp Cavallo LLP v Hyon (2008) 167 CalApp4th 1489
1509 A claim for breach of contract also requires the plaintiff to prove that the defendants
breach caused the plaintiff to suffer damages See St Paul Fire amp Marin Ins Co v American
Dynasty Surplus Lines Ins Co (2002) 101 CaJApp4th 1038 1060 (An essential element of a
claim for breach of contract are damages resulting from the breach Causation ofdamages in
contract cases requires that the damages be proximately caused by the defendants breach)
The same causation test applies to both professional negligence and breach of contract claims
See Vasiion Therapeutics Inc v Foley amp Lardner LLP (SDCai 2008) 2008 WL 5147201 3 5
It is well settled that if the attorneys negligent conduct does not cause damage it
generates no cause of the action See ShopojJ 167 CaJApp4th at 1509 To show damages
proximately caused by the breach the pJaintiffmust demonstrate that but for the attorneys
malpractice it is more likely than not the plaintiff would have obtained a more favorable result
(d) See also Viner 30 Ca14th at 1240-43 Unless a party suffers damage as a consequence of
his attorneys negligence he cannot establish a cause of action for malpractice Breach of duty
causing only speculative harm is insufficient to create such a cause of action [D]amages may
5 SDPOA labels its claim as one for attorney malpractice and thus it is not clear if it intends to pursue a negligence theory a breach of contract theory or both See Complaint p 6 Regardless of whether the SDPOA pursues a tort or contract claim the same causation standard applies
-15shy----~---- ~----~~-~--~~~---------~------
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OC462991 v J
not be based upon sheer speculation or surmise and the mere possibility or even probability that
damage will result from wrongful conduct does not render it actionable Thompson v Halvonik
(1995) 36 CalAppAth 657 661-62
As the California Supreme Court made clear in the seminal Viner case the crucial
causation inquiry is what would have happened if the defendant attorney had not been negligent
This is so because the very idea of causation necessarily involves comparing historical events to
a hypothetical alternative Viner 30 CaL4th at 1242 (emphasis in original) Although the label
of the test may differ from case to case the rule underlying the test is always the same to
prevail on a malpractice claim the plaintiff must demonstrate that the attorneys negligence
caused the plaintiffs harm See Viner at 1240 n 4 (noting that the causation inquiry is also
sometimes described as the case within the case or the trial within the trial)
B Causation in a Legal Malpractice Case is Appropriately Treated as an Issue
of Law Rather Than Fact When the Underlying Litigation Was Decided
Based on a Question of Law
The element of causation in a legal malpractice case is treated as an issue of law which
the underlying litigation was decided on a question of law As one California court has
explained no jury can reach its own judgment on the proper outcome of an earlier case that
hinged on an issue of law Piscitelli v Friedenberg (2001) 87 CalAppAh 953 974 quoting
with approval from Chocktoot v Smith (Ore 1977) 571 P2d 1255 1258 see also id at 971
(explaining that [i]n legal malpractice cases whether a court or jury decides the underlying
case-within-a-case [turns on] whether the issues are predominantly questions of fact or law)
C The SDPOA Cannot Establish That Had Defendants Made a Different
Argument the Plaintiff Would Have Obtained a More Favorable Outcome
The SDPOAs causation allegation against Petersen is not merely tenuous it is nonshy
existent First the SDPOA alleges that it was adversely affected before the lawsuit was filed and
Defendants were retained when the City implemented its last bet final offer at the bargaining
table which had the effect of reducing retirement health benefit As a matter of law Petersen is
not the cause of the Citys bargaining position Moreover the underlying litigation on which the
Defendant Petersens Demurrer To Complaint
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OCI46299I v I
SDPOAs legal malpractice claims are based were part of the SDPOAs response to the Citys
reduction of the health benefits
Second Plaintiff argues that because the Defendants did not put on evidence of some
unidentified and undisputed facts or make unidentifled arguments or cite unidentified precedent
the trial courts in those matters wrongly decided issues concerning whether the SDPOAs
members retirement health benefits were vested
Whether retirement health benefits were vested under the federal law at issue in the
underlying litigation was a contested issue of law the opposing parties in the underlying action
were represented by very able counsel (the law firms of Latham amp Watkins and Seltzer Caplan
McMahon Vitek) and the legal issues were before and decided by judges after extensive
litigation briefing and argument After considering the law those judges unanimously ruled that
as a matter of law the benefits were not vested The SDPOA cannot possibly satisfy its burden
of proving by a preponderance of the evidence that this legal result was the fault of the
defendants ie that had the defendants only done something different it is more likely than not
that the questions of federal law in the underlying litigation would have been resolved
differently See Shopof[ 167 CalApp4th at 1509 Viner 30 Ca14th at 1240-43 Stated
differently whether the SDPOAs complaint is pure speculation - which it is - is a question of
law for this Court in this demurrer
In addition the same fatal flaw arises because the SDPOA through their present attorney
dismissed its state law claims The SDPOAs voluntary dismissal of its state law claims
precludes it from making the current legal malpractice claim By dismissing those claims the
SDPOA made it impossible to demonstrate but for causation in this case If the SDPOA
suffered any harm it has been on account of its own voluntary actions that have nothing to do
with Petersen and the claims alleged against him here
Lastly it is frivolous for Plaintiff to contend that the Defendants should bear
responsibility for the Citys decision to amend its Municipal Code and impose an $8800 cap on
annual retirement health benefits These Defendants have no control over the City and are not a
-17shyDefendant Petersens Demurrer To Complaint
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1 cause of the Citys own financial predicament and did not cause the City to decide to reduce the
2 SDPOAs members benefits before the underlying lawsuits had even been filed
3 VI
4 CONCLUSION
As discussed above there are at least two reasons why this demurrer should be sustained
6 without leave to amend First the SDPOAs complaint and court records from the underlying
7 litigation firmly establish that the SDPOAs claim against defendant Petersen is barred by the
8 one year statute of limitations applicable to legal malpractice actions Second the SDPOAs
9 allegations also firmly establish that Petersen did not cause the SDPOA any damage as a matter
oflaw
11 For these reasons defendant Petersens demurrer to Plaintiffs complaint should be
12 sustained Moreover because no amendment will change this result this demurrer should be
13 sustained without leave to amend
14
DATED May 142010 SEDGWICK DETERT MORAN amp ARNOLD LLP
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By1~~tra18 Gregory H Halliday
Frederick B Hayes 19 Attorneys for Defendant
GREGORY GLENN PETERSEN
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OC46299 I v I 8shyDefendant Petersens Demurrer To Complaint
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PROOF OF SERVICE
San Diego Police Officers Association v Jackson Deivfarco Tidus amp Peckenpaugh et al San Diego Superior Court Case No 37-2010-00088794-CU-PN-CTL
I am a resident of the State of California over the age of eighteen years and not a party to the within action My business address is Sedgwick Detert Moran amp Arnold LLP 3 Park Plaza 17th Floor Irvine California 92614middot8540 On May 142010 I served the within document(s)
DEFENDANT GREGORY GLENN PETERSENS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS COMPLAINT MEMORANDUM OF POINTS AND
AUTHORITIES
o FACSIMILEmiddot by transmitting via facsimile the document(s) listed above to the fax number(s) set forth on the attached Telecommunications Cover Page(s) on this date before 500 pm
MAILmiddot by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid in the United States mail at Irvine California addressed as set forth below
PERSONAL SERVICE - by personally delivering the document(s) listed above to the persltm(s) at the addressees) set forth below
o OVERNIGHT COURIER - by placing the document(s) listed above in a sealed envelope with shipping prepaid and depositing in a collection box for next day delivery to the person(s) at the addressees) set forth below via OverNite Express
SEE ATTACHED LIST
I am readily familiar with the finns practice of collection and processing correspondence for mailing Under that practice it would be deposited with the US Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business I am aware that on motion of the party served service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit
I declare under penalty of perjury under the laws of the State of California that the above is true and correct Executed on May 142010 at Irvine California
OCI463303v I
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San Diego Police Officers Association v Jackson Ddvfarco Tidus amp Peckenpaugh et ai SDSC Case No 37-2010-00088794-CU-PN-CTL
2 ProofofService shy Page 2
3
4 I Michael A Conger Esq AhUUltys for Plaintiff Law Office of Michael A Conger San Diego Police Officers Association 16236 San Dieguito Road Suite 4-14 PO Box 9374 (858) 759-0200 - telephone
6 Rancho Santa Fe CA 92067 (858) 759-1906 facsimile congermike(aJaoLcom
7 Gregory A Long Esq Attorneys for Defendants
8 Sheppard Mullin Richter amp Hampton LLP Jackson DeMarco Tidus amp Peckenpaugh 333 S Hope Street 48 th Floor
9 Los Angeles CA 90071 (213) 617-5443 phone (213) 620-1398 - facsimile
Iglongsheppardmullincom
11 Matthew W Holder Esq
12 Sheppard Mullin Richter amp HamptonLLP 12275 EI Camino Real Suite 200
13 San Diego CA 92130-2006
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OC463303v I
Attorneys for Defendants Jackson DeMarco Tidus amp Peckenpaugh
(858) 720-8900 - phone (858) 509-3691 facsimile mholdersheppardmullincom
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OC462991v 1
allegations fail to even hint at what fact or legal precedent or argument should have been
presented to the courts in the underlying actions to causes them to reach a different conclusion as
to whether under federal law the SDPOAs members retirement health benefits were vested
The SDPOAs inability to prove causation is also the result of the SDPOAs ovvD acts
Although the federal law claims brought by the SDPOA in the underlying litigation were
disposed of on their merits the state law causes of action were dismissed without prejudice and
subsequently the SDPOA filed a state court action SDPOA v Aguirre et aI Superior Court of
San Diego County Case No GIC 841845 After filing this state court lawsuit the SDPOA
dismissed it on December 9 2009 through its attorney Michael Conger who is also the
SDPOAs attorney of record in the present legal malpractice lawsuit Thus state law remedies
which had they been successfully prosecuted would have obviated any claim of damage by the
SDPOA were voluntarily relinquished by the SDPOA when it dismissed its state court lawsuit
Stated otherwise because the SDPOA voluntarily terminated its lawsuit asserting the
state law claims regarding the vesting of the retirement health benefits the SDPOA is now
precluded from asserting any act or omission by the defendants in the present matter caused it
any injury Because the SDPOA chose to dismiss its state claims their eventual outcome is
necessarily in the realm of speculation and conjecture and the SDPOAs present claim fails
Finally the SDPOA cannot seriously assert that it knows what motivated the City or that
the City would not have taken other steps to reduce its exposure for pay andor retirement
benefits if only some fact had been presented or some argument made As this court wells
knows as a result of pension liabilities the City was facing a deficit that exceeded one billion
dollars Simply put the SDPOA cannot show that but for the defendants alleged negligence
it is more likely than not that the courts in the underlying litigation matters would have reached
different conclusions or that these court decisions caused the City to reduce the compensation to
the SDPOAs members when the City had already stated before the underlying litigation
matters were filed that it intended to do so The SDPOA lawsuit fails as a matter of law and
should be dismissed
Defendant Petersens Demurrer To Complaint
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II
STATEMENT OF FACTS
On March 29 2010 the SDPOA filed its present legal malpractice lawsuit against the
JDTP law firm and two attorneys - Petersen and Mohamed Alim Ahmad Malik - asserting a
single cause of action labeled Attorney Malpractice The SDPOA alleges the defendants
represented it in underlying litigation against the City identified as SDPOA v Aguirre et al and
McGuigan v City oSan Diego et al (See Complaint ~ 9) The SDPOAs complaint alleges
nine generally described breaches of the duty of care such as the failure to present sufficient
evidence to prevail on the retiree health claim in SDPOA v Aguirre et al even though such
evidence existed resulting in a reduction of retiree heaith benefits to SDPOA members (Id at
~ 11(b)) As a result of these and the other alleged breaches of the duty of care the SDPOA
seeks damages including the fees it paid to the JDTP law firm in the underlying litigation (Jd
at ~ 11(b))
The SDPOAs bare bones complaint omits several key chronological facts that are
dispositive of its claims against Petersen
(1) The McGuigan court entered judgment on the SDPOAs claims in December
2006
(2) The Aguirre court entered summary judgment in favor of the City defendants and
against the SDPOA in May 2007
(3) Petersen left the JDTP law firm in March 2008 and his attorney-client
relationship with the SDPOA terminated then
Indeed the fact that Petersen left the JDTP law firm in March 2008 is patently obvious
from an April 2008 order entered by the United States District Court Southern District of
California in Aaron et a v Aguirre et at (Aaron) Case No 06-CV -1451 a related health
benefits litigation matter filed by approximately 1800 SDPOA members In Aaron the District
Court entered an order in April 2008 requiring each of the approximately 1800 plaintiffs to sign
a substitution of attorney stating whether he or she was represented by Petersen and the Petersen
Law Firm or the JDTP law firm or someone else (RJN Exh 2)
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OC4 62991 v I
In other words court records firmly establish that the SDPOAs cause ofact10n for legal
malpractice against Petersen accrued no later than March 2008 As of March 2008 the SDPOA
had alleged suffered actual harm as a result of Petersens malpractice and he was not longer
representing it Accordingly the one year statute for any claim the SDPOA had against Petersen
for legal malpractice arising from the McGuigan and Aguirre matters commenced to run in
March 2008 Because the SDPOA did not file this lawsuit until March 29 2010 its claim for
legal malpractice against Petersen is time barred by Section 3406
III
DEMURRER IS PROPER WHERE ACTION IS BARRED
BY STATUTE OF LIMITATIONS
The party against whom a complaint has been filed may object by demurrer as
provided in Section 43030 to the pleading on the grounds that [tJhe pleading does not
state facts sufficient to constitute a cause of action (Code Civ Proc sect 43010 subd (e))
When the plaintiffs action is barred by the statute of limitations a general demurrer (ie
the pleading does not state facts sufficient to constitute a cause of action) is proper (Saliter v
Pierce Bros lvfortuaries (1978) 81 CaLApp3d 292300 fn 2 Iverson Yoakum Papiano amp
Hatch v Berwald (1999) 76 CalApp4th 990 995)
A demurrer is also appropriate if a pleading does not state facts sufficient to constitute a
cause of action Code Civ Proc sect 430l0e) Bockrath v Aldrich Chemical Co (1999) 21
Ca14th 7183 Here the SDPOA cannot state facts to support the causation and damages
elements of its legal malpractice cause of action Although a court must on demurrer accept as
true properly pleaded facts a demurrer does not admit contentions or conclusions of law or fact
freeman v San Diego Ass n ofRealtors (l999) 77 CaLApp4th 71 185 n 11
Under Section 43030 a demurrer can also be based on matter subject to judicial notice
is properly based on any matter of which the court is required to or may take judicial notice
(Code Civ Proc sect 43030 subd (a)) Under Evidence Code section 452(d) the court can take
judicial notice of the court records of any court of record of the United States (Evid Code sect
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452(d))4 When court records subject to judicial notice disclose an absolute defense to the action
or a deficiency in the complaint the matter can be adjudicated at by way of demurrer
(Bistawros v Greenberg (1987) 189 CalApp3d 189 192 [court took judicial notice of its own
files in sustaining demurrer on ground of another action pending between same parties on same
cause1 see also Frornrnhagen v Board ofSupervisors ofSanta Cruz County (1987) 197
Ca1App3d 1292 1299 [court took judicial notice of complaint in prior action] Britz Inc v
Dow Chern Co (1999) 73 CalAppAth 177 180 [in ruling on demurrer court could take judicial
notice of prior order approving good faith settlement under Code of Civil Procedure sect 8776])
Here defendant Petersen requests that this court take judicial notice pursuant to Evidence
Code section 452(d) of the court records including court orders in the underlying actions on
which the SDPOAs present legal malpractice claims are based namely San Diego Police
Officers Association v Aguirre et al USDC Case No 05-CV -1581 McGuigan v City ofSan
Diego San Diego County Case No OIC 949883 and the action by the SDPOAs members
Aaron et al v Aguirre et at (Aaron) USDC Case No 06-CV -1451
These court records establish that as of March 2008 the SDPOA had allegedly suffered
actual injury and its attorney-client relationship with Petersen terminated Accordingly as of
March 2008 the one year statute commenced to run The SDPOAs failure to file its lawsuit
against Petersen within one year of March 2008 means its claim against him is now time barred
IV
THE ENTIRE ACTION AGAINST PETERSEN IS BARRED
BY CODE OF CIVIL PROCEDURE SECTION 3406
A The One Year Statute of Limitations Set Forth In Section 3406 Applies To
The SDPOAs Claims
The SDPOAs claims against Petersen are barred by the one year statute of limitations set
forth in Section 3406 which is the statute of limitations for all actions against attorneys for
4 Evidence Code section 452 provides as follows Judicial notice may be taken ofthe following matters (~~J (d) Records of (1) any court of this state or (2) any court of record of the United States
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alleged wrongful acts or omissions arising out of the rendition of professional services
(Crowley v Katleman (1994) 8 Ca14th 666681-682) Section 3406 states
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 ofthe wrongful act or omission whichever occurs first (Code Civ Proc sect 3406(a))
Where an attorney has been accused of wrongful conduct the courts recognize that
regardless of the labels attached to the pleadings allegations the gravamen of the complaint is
legal malpractice (Kracht v Perrin Gartland amp Doyle (1990) 219 CalApp3d 1019 1022-1023
(Kracht) [complaint for breach of statutory duty constructive fraud and ordinary negligence
treated as malpractice claim for purposes of upholding order sustaining demurrer without leave
to amend] Jackson v Rogers amp Wells (1989) 210 CaLApp3d 336346349 [fraud and breach of
contract theories where alleged misfeasance Were acts requiring professional judgment calls
treated as malpractice claims for assignability purposes]) California case law treats all actions
arising out of the wrongful acts or omissions of attorneys as falling under the umbrella of legal
malpractice (Pompilio v Kosmo Cho amp Brown (1995) 39 CalAppAth 1324 1329 [plaintiffs
breach of fiduciary duty cause of action for attorneys errors and omissions sounds in legal
malpractice] see also Levin v Graham amp James (1995) 37 CalAppAth 798 Thompson v
Halvonik (1995) 36 CalAppAth 657664 Jacoby v Schenkel (1995) 36 CalAppAth 1701
Radovich v Locke-Paddon (1995) 35 CalAppAth 946 966 Stoll v Superior Court (1992) 9
CalAppAth 1362 1368)
Put simply when the claim concerns an alleged injury arising by reason of an attorneys
professional negligence the claim is one for legal malpractice subject to the statute of limitations
set forth in Section 3406 (Kracht 219 CaLApp3d at pp 1022-1023) Here the thrust of the
SDPOAs claim is that the Defendants including Petersen negligently handled the underlying
litigation (Complaint ~20) The complaints allegations plainly establish that the SDPOA is
suing Defendants for alleged errors and omissions arising from the provision oflegal services
Defendant Petersens Demurrer To Complaint
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with respect to underlying litigation Thus the applicable statute of limitations is Section 3406
(Kracht 219 CalApp3d at pp 1022-1023)
B The SDPOA Suffered Actual Injury When The Underlying Trial Courts
Entered Judgment Against It In The Underlying Litigation Matters
The California Supreme Court has made it clear that [a]ctual injury occurs when the
client suffers any loss or injury legally cognizable as damages in a legal malpractice action based
on the asserted errors or omissions (Jordache Enterprises Inc v Brobeck Phleger and
Harrison (1998) 18 Cal4th 739 743 (Jordache)) The Jordache court determined that the loss
or diminution of a right or remedy constitutes injury or damage Neither uncertainty of amount
nor difficulty of proof renders that injury speculative or inchoate (fd at p 744) As explained
by the Supreme Court in determining actual injury the inquiry necessarily is more qualitative
than quantitative because the fact of damage rather than the amount is the critical factor (Id
at p 752)
In Jordache the plaintiff alleged that the defendant committed malpractice by failing to
advise the plaintiff to tender a complaint filed against it to its insurance carrier (fd at p 746)
As a result of the defendants omission significant time passed before the plaintiff tendered the
complaint to the insurer (Id at p 745) The insurance carrier argued that the plaintiffs late
tender relieved its obligation to provide benefits (Ibid) The plaintiff initiated litigation against
the insurer regarding the coverage issue and the viability of the insurers late tender defense
(Ibid) The plaintiff did not file its professional malpractice claim against the defendant until
after resolution of the coverage litigation (fd at p 746)
In evaluating when the actual injury occurred under Section 3406 the California
Supreme Court concluded that in addition to incurring legal fees to prosecute the coverage
dispute the defendants alleged omissions also gave the insurers an objectively viable defense
which consequently reduced those [insurance] claims settlement value (Id at p 743)
Because the insurers objection rendered the plaintiffs claims immediately less valuable than
they were prior to the assertion of such defense and because the defense arose as a result of the
plaintiffs counsels omission the plaintiff was actually injured within the meaning of Section
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3406 at the time the insurers defense was asserted (ld at pp 743-744) It does not matter
whether a plaintiff is able to quantify the amount by which its claims were devalued at the time
such a defense accrued and was asserted because actual injury may well precede quantifiable
financial costs (Adams v Paul (1995) 11 CaL4th 583 591 fn 5)
Thus under Jordache the test for actual injury under section 3406 therefore is
whether the plaintiff has sustained any damages compensable in an action against an attorney
for a wrongful act or omission arising in the performance of professional services (Jordache
18 CaL4th at p 751)
With respect to the present case the SDPOA suffered actual injury in the underlying
litigation matters when the trial courts entered judgment against the SDPOA Thus it suffered
actual injury in the McGuigan matter in December 2006 and it suffered actual injury in the
Aguirre matter in May 2007
c The SDPOA Discovered The Alleged Injuries In December 2006 and May
2007
To constitute discovery as that term is used in Section 3406 a plaintiff need only be
apprised of the fact that someone has done a wrong - plaintiff need not have a legal theory or
knowledge that he has a cause of action against an attorney at that point (McGee v Weinberg
(1979) 97 CaLApp3d 798 (lvfcGee) Worton v Worton (1991) 234 CaLApp3d 1368)
Discovery for purposes of triggering the commencement of the limitations period under Section
3406 occurs when the client discovered or should have discovered the facts giving rise to a
cause of action for legal malpractice As noted by the McGee court The test is whether the
plaintiff has information of circumstances sufficient to put a reasonable person on inquiry or has
the opportunity to obtain knowledge from sources open to his or her investigation (McGee 97
CaLApp3d at p 798)
Here the SDPOA knew it had lost the McGuigan case in December 2006 and the
Aguirre case in May 2007 The SDPOA also knew that its attorney client relationship with
Petersen terminated in March 2008 when he left the JDTP law firm
Defendant Petersens Demurrer To Complaint
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Thus as of March 2008 the SDPOA had information sufficient to put a reasonable
person on inquiry The possibility that the SDPOA may not have understood or that their
attorneys at JDTP may not have told them of all of the significance of Petersens departure from
the JDTP law firm (eg the commencement of the statute as to any claims against Petersen) does
not alter the fact that the SDPOA discovered (or should have discovered) the facts which gave
rise to their legal malpractice claims against Petersen no later than March 3 2008
D Plaintiffs Suffered Actual Injury More Than One Year Before Filing Their
Complaint And The Statute of Limitations Has Not Been Tolled
Under Code of Civil Procedure section 3406 an action must be commenced one year
from discovery unless tolled because among other things the attorney continues to represent the
plaintiff regarding the specific subject matter in which the alleged act or omission occurred
(Code Civ Proc sect 3406) In this case there is no dispute that Petersens representation of the
SDPOA terminated in March 2008 when he left the JDTP law firm and ceased his representation
of the SDPOA As such there is no tolling ofthe statute in this situation for continuous
representation The present situation is somewhat analogous to Beal Bank SSB v Arter amp
Hadden LLP (2007) 42 Ca14th 503 (Beal Bank)
Beal Bank acquired loans that contained default provisions and retained the AampH law
firm to handle the collection efforts The attorney handling the matter left the AampH law firm and
the attorneys new firm took over Beal Banks representation When the collections efforts were
unsuccessful Beal Bank sued the AampH law firm and the new law firm The AampH law firm
demurred to the malpractice complaint on the theory that when the lawyer left and took the client
with him there was no need to continue to toll the statute of limitations against the AampH law
firm due to continued representation The Supreme Court agreed and held that once the case
leaves the firm the representation of the prior firm ceases and the statute of limitations clock
begins to tick against the prior firm (Beal Bank 42 Ca14th at pp 512-514)
The Supreme Court recognized that this situation may require malpractice plaintiffs to
move swiftly and perhaps act in filing a lawsuit before the underlying action was resolved but
the Supreme Court did not let this concern affect its reasoning regarding when continuous
Defendant Petersens Demurrer To Complaint
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representation tolling ceases Here the clock for the SDPOAs malpractice claims against
Petersen commenced to tick in March 2008 when he left the JDTP law firm The SDPOA did
not file its action against Petersen within one year of March 2008 and therefore its legal
malpractice claim against him is time barred
The SDPOA may argue that because it appealed from the District Court and Superior
Courts orders in the underlying Aguirre and ~McGuigan litigation matters the statute of
limitations did not commence to run until the decisions on those appeals were rendered This
argument lacks merit and was rejected by the Jordache court when it determined that a causal
nexus between the injury and the malpractice does not need to be confirmed by settlement or
adjudication (Jordache 18 Cal4th at p 744) The Supreme Court reasoned that an existing
injury is not contingent or speculative simply because future events may effect its permanency or
the amount of monetary damages eventually incurred (fd at p 754)
Thus even if the SDPOA did not know whether future events (ie their appeals) may
effect the permanency of their injury (eg ruling that retiree benefits were not vested-
Complaint at 20) they still had suffered actual injury when the District Court and Superior Court
ruled against them and any tolling of the statute of limitations ended when Petersen departed the
JDTP law firm and his attorney-client relationship with the SDPOA terminated The fact that
appeals were still pending when he departed the JDTP law firm is of no consequence because in
determining actual injury the inquiry necessarily is more qualitative than quantitative because
the fact of damage rather than the amount is the critical factor (fd at p 752) The limitations
period is not tolled even ifthe injury is in some way remediable and appreciable actual injury
does not depend on the plaintiffs ability to attribute a quantifiable sum of money to
consequential damages (Jordache 18 Ca14th at p 750)
Here the underlying court records show Petersen no longer represented the SDPOA after
March 2008 The SDPOAs complaint offers no facts that would toll Section 3406 after the one
year limitations period commenced in March 2008 Because the SDPOA did not file this action
until March 29 2010 its claims against Petersen are time barred and this demurrer should be
sustained without leave to amend as to Petersen
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V
PETERSENS DEMURRER SHOULD ALSO BE SUSTAINED BECAUSE THE SDPOA
HAS NOT PLEADED AND CANNOT PLEAD FACTS IN SUPPORT OF THE
CAUSATION AND DAMAGES ELEMENTS OF A CAUSES OF ACTION FOR LEGAL
MALPRACTICE
A To Prevail On A Claim For Legal Malpractice the Plaintiff Must Plead and
Prove the Defendant Caused the Plaintiffs Harm
The elements of a cause of action for professional negligence are (l) the duty ofthe
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 See ShopofJ amp Cavallo LLP v Hyon (2008) 167 CalApp4th 1489
1509 A claim for breach of contract also requires the plaintiff to prove that the defendants
breach caused the plaintiff to suffer damages See St Paul Fire amp Marin Ins Co v American
Dynasty Surplus Lines Ins Co (2002) 101 CaJApp4th 1038 1060 (An essential element of a
claim for breach of contract are damages resulting from the breach Causation ofdamages in
contract cases requires that the damages be proximately caused by the defendants breach)
The same causation test applies to both professional negligence and breach of contract claims
See Vasiion Therapeutics Inc v Foley amp Lardner LLP (SDCai 2008) 2008 WL 5147201 3 5
It is well settled that if the attorneys negligent conduct does not cause damage it
generates no cause of the action See ShopojJ 167 CaJApp4th at 1509 To show damages
proximately caused by the breach the pJaintiffmust demonstrate that but for the attorneys
malpractice it is more likely than not the plaintiff would have obtained a more favorable result
(d) See also Viner 30 Ca14th at 1240-43 Unless a party suffers damage as a consequence of
his attorneys negligence he cannot establish a cause of action for malpractice Breach of duty
causing only speculative harm is insufficient to create such a cause of action [D]amages may
5 SDPOA labels its claim as one for attorney malpractice and thus it is not clear if it intends to pursue a negligence theory a breach of contract theory or both See Complaint p 6 Regardless of whether the SDPOA pursues a tort or contract claim the same causation standard applies
-15shy----~---- ~----~~-~--~~~---------~------
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OC462991 v J
not be based upon sheer speculation or surmise and the mere possibility or even probability that
damage will result from wrongful conduct does not render it actionable Thompson v Halvonik
(1995) 36 CalAppAth 657 661-62
As the California Supreme Court made clear in the seminal Viner case the crucial
causation inquiry is what would have happened if the defendant attorney had not been negligent
This is so because the very idea of causation necessarily involves comparing historical events to
a hypothetical alternative Viner 30 CaL4th at 1242 (emphasis in original) Although the label
of the test may differ from case to case the rule underlying the test is always the same to
prevail on a malpractice claim the plaintiff must demonstrate that the attorneys negligence
caused the plaintiffs harm See Viner at 1240 n 4 (noting that the causation inquiry is also
sometimes described as the case within the case or the trial within the trial)
B Causation in a Legal Malpractice Case is Appropriately Treated as an Issue
of Law Rather Than Fact When the Underlying Litigation Was Decided
Based on a Question of Law
The element of causation in a legal malpractice case is treated as an issue of law which
the underlying litigation was decided on a question of law As one California court has
explained no jury can reach its own judgment on the proper outcome of an earlier case that
hinged on an issue of law Piscitelli v Friedenberg (2001) 87 CalAppAh 953 974 quoting
with approval from Chocktoot v Smith (Ore 1977) 571 P2d 1255 1258 see also id at 971
(explaining that [i]n legal malpractice cases whether a court or jury decides the underlying
case-within-a-case [turns on] whether the issues are predominantly questions of fact or law)
C The SDPOA Cannot Establish That Had Defendants Made a Different
Argument the Plaintiff Would Have Obtained a More Favorable Outcome
The SDPOAs causation allegation against Petersen is not merely tenuous it is nonshy
existent First the SDPOA alleges that it was adversely affected before the lawsuit was filed and
Defendants were retained when the City implemented its last bet final offer at the bargaining
table which had the effect of reducing retirement health benefit As a matter of law Petersen is
not the cause of the Citys bargaining position Moreover the underlying litigation on which the
Defendant Petersens Demurrer To Complaint
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OCI46299I v I
SDPOAs legal malpractice claims are based were part of the SDPOAs response to the Citys
reduction of the health benefits
Second Plaintiff argues that because the Defendants did not put on evidence of some
unidentified and undisputed facts or make unidentifled arguments or cite unidentified precedent
the trial courts in those matters wrongly decided issues concerning whether the SDPOAs
members retirement health benefits were vested
Whether retirement health benefits were vested under the federal law at issue in the
underlying litigation was a contested issue of law the opposing parties in the underlying action
were represented by very able counsel (the law firms of Latham amp Watkins and Seltzer Caplan
McMahon Vitek) and the legal issues were before and decided by judges after extensive
litigation briefing and argument After considering the law those judges unanimously ruled that
as a matter of law the benefits were not vested The SDPOA cannot possibly satisfy its burden
of proving by a preponderance of the evidence that this legal result was the fault of the
defendants ie that had the defendants only done something different it is more likely than not
that the questions of federal law in the underlying litigation would have been resolved
differently See Shopof[ 167 CalApp4th at 1509 Viner 30 Ca14th at 1240-43 Stated
differently whether the SDPOAs complaint is pure speculation - which it is - is a question of
law for this Court in this demurrer
In addition the same fatal flaw arises because the SDPOA through their present attorney
dismissed its state law claims The SDPOAs voluntary dismissal of its state law claims
precludes it from making the current legal malpractice claim By dismissing those claims the
SDPOA made it impossible to demonstrate but for causation in this case If the SDPOA
suffered any harm it has been on account of its own voluntary actions that have nothing to do
with Petersen and the claims alleged against him here
Lastly it is frivolous for Plaintiff to contend that the Defendants should bear
responsibility for the Citys decision to amend its Municipal Code and impose an $8800 cap on
annual retirement health benefits These Defendants have no control over the City and are not a
-17shyDefendant Petersens Demurrer To Complaint
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1 cause of the Citys own financial predicament and did not cause the City to decide to reduce the
2 SDPOAs members benefits before the underlying lawsuits had even been filed
3 VI
4 CONCLUSION
As discussed above there are at least two reasons why this demurrer should be sustained
6 without leave to amend First the SDPOAs complaint and court records from the underlying
7 litigation firmly establish that the SDPOAs claim against defendant Petersen is barred by the
8 one year statute of limitations applicable to legal malpractice actions Second the SDPOAs
9 allegations also firmly establish that Petersen did not cause the SDPOA any damage as a matter
oflaw
11 For these reasons defendant Petersens demurrer to Plaintiffs complaint should be
12 sustained Moreover because no amendment will change this result this demurrer should be
13 sustained without leave to amend
14
DATED May 142010 SEDGWICK DETERT MORAN amp ARNOLD LLP
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By1~~tra18 Gregory H Halliday
Frederick B Hayes 19 Attorneys for Defendant
GREGORY GLENN PETERSEN
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OC46299 I v I 8shyDefendant Petersens Demurrer To Complaint
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PROOF OF SERVICE
San Diego Police Officers Association v Jackson Deivfarco Tidus amp Peckenpaugh et al San Diego Superior Court Case No 37-2010-00088794-CU-PN-CTL
I am a resident of the State of California over the age of eighteen years and not a party to the within action My business address is Sedgwick Detert Moran amp Arnold LLP 3 Park Plaza 17th Floor Irvine California 92614middot8540 On May 142010 I served the within document(s)
DEFENDANT GREGORY GLENN PETERSENS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS COMPLAINT MEMORANDUM OF POINTS AND
AUTHORITIES
o FACSIMILEmiddot by transmitting via facsimile the document(s) listed above to the fax number(s) set forth on the attached Telecommunications Cover Page(s) on this date before 500 pm
MAILmiddot by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid in the United States mail at Irvine California addressed as set forth below
PERSONAL SERVICE - by personally delivering the document(s) listed above to the persltm(s) at the addressees) set forth below
o OVERNIGHT COURIER - by placing the document(s) listed above in a sealed envelope with shipping prepaid and depositing in a collection box for next day delivery to the person(s) at the addressees) set forth below via OverNite Express
SEE ATTACHED LIST
I am readily familiar with the finns practice of collection and processing correspondence for mailing Under that practice it would be deposited with the US Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business I am aware that on motion of the party served service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit
I declare under penalty of perjury under the laws of the State of California that the above is true and correct Executed on May 142010 at Irvine California
OCI463303v I
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San Diego Police Officers Association v Jackson Ddvfarco Tidus amp Peckenpaugh et ai SDSC Case No 37-2010-00088794-CU-PN-CTL
2 ProofofService shy Page 2
3
4 I Michael A Conger Esq AhUUltys for Plaintiff Law Office of Michael A Conger San Diego Police Officers Association 16236 San Dieguito Road Suite 4-14 PO Box 9374 (858) 759-0200 - telephone
6 Rancho Santa Fe CA 92067 (858) 759-1906 facsimile congermike(aJaoLcom
7 Gregory A Long Esq Attorneys for Defendants
8 Sheppard Mullin Richter amp Hampton LLP Jackson DeMarco Tidus amp Peckenpaugh 333 S Hope Street 48 th Floor
9 Los Angeles CA 90071 (213) 617-5443 phone (213) 620-1398 - facsimile
Iglongsheppardmullincom
11 Matthew W Holder Esq
12 Sheppard Mullin Richter amp HamptonLLP 12275 EI Camino Real Suite 200
13 San Diego CA 92130-2006
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OC463303v I
Attorneys for Defendants Jackson DeMarco Tidus amp Peckenpaugh
(858) 720-8900 - phone (858) 509-3691 facsimile mholdersheppardmullincom
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OC46299]vj
II
STATEMENT OF FACTS
On March 29 2010 the SDPOA filed its present legal malpractice lawsuit against the
JDTP law firm and two attorneys - Petersen and Mohamed Alim Ahmad Malik - asserting a
single cause of action labeled Attorney Malpractice The SDPOA alleges the defendants
represented it in underlying litigation against the City identified as SDPOA v Aguirre et al and
McGuigan v City oSan Diego et al (See Complaint ~ 9) The SDPOAs complaint alleges
nine generally described breaches of the duty of care such as the failure to present sufficient
evidence to prevail on the retiree health claim in SDPOA v Aguirre et al even though such
evidence existed resulting in a reduction of retiree heaith benefits to SDPOA members (Id at
~ 11(b)) As a result of these and the other alleged breaches of the duty of care the SDPOA
seeks damages including the fees it paid to the JDTP law firm in the underlying litigation (Jd
at ~ 11(b))
The SDPOAs bare bones complaint omits several key chronological facts that are
dispositive of its claims against Petersen
(1) The McGuigan court entered judgment on the SDPOAs claims in December
2006
(2) The Aguirre court entered summary judgment in favor of the City defendants and
against the SDPOA in May 2007
(3) Petersen left the JDTP law firm in March 2008 and his attorney-client
relationship with the SDPOA terminated then
Indeed the fact that Petersen left the JDTP law firm in March 2008 is patently obvious
from an April 2008 order entered by the United States District Court Southern District of
California in Aaron et a v Aguirre et at (Aaron) Case No 06-CV -1451 a related health
benefits litigation matter filed by approximately 1800 SDPOA members In Aaron the District
Court entered an order in April 2008 requiring each of the approximately 1800 plaintiffs to sign
a substitution of attorney stating whether he or she was represented by Petersen and the Petersen
Law Firm or the JDTP law firm or someone else (RJN Exh 2)
Defendant Petersens Demurrer To Complaint
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OC4 62991 v I
In other words court records firmly establish that the SDPOAs cause ofact10n for legal
malpractice against Petersen accrued no later than March 2008 As of March 2008 the SDPOA
had alleged suffered actual harm as a result of Petersens malpractice and he was not longer
representing it Accordingly the one year statute for any claim the SDPOA had against Petersen
for legal malpractice arising from the McGuigan and Aguirre matters commenced to run in
March 2008 Because the SDPOA did not file this lawsuit until March 29 2010 its claim for
legal malpractice against Petersen is time barred by Section 3406
III
DEMURRER IS PROPER WHERE ACTION IS BARRED
BY STATUTE OF LIMITATIONS
The party against whom a complaint has been filed may object by demurrer as
provided in Section 43030 to the pleading on the grounds that [tJhe pleading does not
state facts sufficient to constitute a cause of action (Code Civ Proc sect 43010 subd (e))
When the plaintiffs action is barred by the statute of limitations a general demurrer (ie
the pleading does not state facts sufficient to constitute a cause of action) is proper (Saliter v
Pierce Bros lvfortuaries (1978) 81 CaLApp3d 292300 fn 2 Iverson Yoakum Papiano amp
Hatch v Berwald (1999) 76 CalApp4th 990 995)
A demurrer is also appropriate if a pleading does not state facts sufficient to constitute a
cause of action Code Civ Proc sect 430l0e) Bockrath v Aldrich Chemical Co (1999) 21
Ca14th 7183 Here the SDPOA cannot state facts to support the causation and damages
elements of its legal malpractice cause of action Although a court must on demurrer accept as
true properly pleaded facts a demurrer does not admit contentions or conclusions of law or fact
freeman v San Diego Ass n ofRealtors (l999) 77 CaLApp4th 71 185 n 11
Under Section 43030 a demurrer can also be based on matter subject to judicial notice
is properly based on any matter of which the court is required to or may take judicial notice
(Code Civ Proc sect 43030 subd (a)) Under Evidence Code section 452(d) the court can take
judicial notice of the court records of any court of record of the United States (Evid Code sect
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452(d))4 When court records subject to judicial notice disclose an absolute defense to the action
or a deficiency in the complaint the matter can be adjudicated at by way of demurrer
(Bistawros v Greenberg (1987) 189 CalApp3d 189 192 [court took judicial notice of its own
files in sustaining demurrer on ground of another action pending between same parties on same
cause1 see also Frornrnhagen v Board ofSupervisors ofSanta Cruz County (1987) 197
Ca1App3d 1292 1299 [court took judicial notice of complaint in prior action] Britz Inc v
Dow Chern Co (1999) 73 CalAppAth 177 180 [in ruling on demurrer court could take judicial
notice of prior order approving good faith settlement under Code of Civil Procedure sect 8776])
Here defendant Petersen requests that this court take judicial notice pursuant to Evidence
Code section 452(d) of the court records including court orders in the underlying actions on
which the SDPOAs present legal malpractice claims are based namely San Diego Police
Officers Association v Aguirre et al USDC Case No 05-CV -1581 McGuigan v City ofSan
Diego San Diego County Case No OIC 949883 and the action by the SDPOAs members
Aaron et al v Aguirre et at (Aaron) USDC Case No 06-CV -1451
These court records establish that as of March 2008 the SDPOA had allegedly suffered
actual injury and its attorney-client relationship with Petersen terminated Accordingly as of
March 2008 the one year statute commenced to run The SDPOAs failure to file its lawsuit
against Petersen within one year of March 2008 means its claim against him is now time barred
IV
THE ENTIRE ACTION AGAINST PETERSEN IS BARRED
BY CODE OF CIVIL PROCEDURE SECTION 3406
A The One Year Statute of Limitations Set Forth In Section 3406 Applies To
The SDPOAs Claims
The SDPOAs claims against Petersen are barred by the one year statute of limitations set
forth in Section 3406 which is the statute of limitations for all actions against attorneys for
4 Evidence Code section 452 provides as follows Judicial notice may be taken ofthe following matters (~~J (d) Records of (1) any court of this state or (2) any court of record of the United States
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alleged wrongful acts or omissions arising out of the rendition of professional services
(Crowley v Katleman (1994) 8 Ca14th 666681-682) Section 3406 states
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 ofthe wrongful act or omission whichever occurs first (Code Civ Proc sect 3406(a))
Where an attorney has been accused of wrongful conduct the courts recognize that
regardless of the labels attached to the pleadings allegations the gravamen of the complaint is
legal malpractice (Kracht v Perrin Gartland amp Doyle (1990) 219 CalApp3d 1019 1022-1023
(Kracht) [complaint for breach of statutory duty constructive fraud and ordinary negligence
treated as malpractice claim for purposes of upholding order sustaining demurrer without leave
to amend] Jackson v Rogers amp Wells (1989) 210 CaLApp3d 336346349 [fraud and breach of
contract theories where alleged misfeasance Were acts requiring professional judgment calls
treated as malpractice claims for assignability purposes]) California case law treats all actions
arising out of the wrongful acts or omissions of attorneys as falling under the umbrella of legal
malpractice (Pompilio v Kosmo Cho amp Brown (1995) 39 CalAppAth 1324 1329 [plaintiffs
breach of fiduciary duty cause of action for attorneys errors and omissions sounds in legal
malpractice] see also Levin v Graham amp James (1995) 37 CalAppAth 798 Thompson v
Halvonik (1995) 36 CalAppAth 657664 Jacoby v Schenkel (1995) 36 CalAppAth 1701
Radovich v Locke-Paddon (1995) 35 CalAppAth 946 966 Stoll v Superior Court (1992) 9
CalAppAth 1362 1368)
Put simply when the claim concerns an alleged injury arising by reason of an attorneys
professional negligence the claim is one for legal malpractice subject to the statute of limitations
set forth in Section 3406 (Kracht 219 CaLApp3d at pp 1022-1023) Here the thrust of the
SDPOAs claim is that the Defendants including Petersen negligently handled the underlying
litigation (Complaint ~20) The complaints allegations plainly establish that the SDPOA is
suing Defendants for alleged errors and omissions arising from the provision oflegal services
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OC46299 IvI
with respect to underlying litigation Thus the applicable statute of limitations is Section 3406
(Kracht 219 CalApp3d at pp 1022-1023)
B The SDPOA Suffered Actual Injury When The Underlying Trial Courts
Entered Judgment Against It In The Underlying Litigation Matters
The California Supreme Court has made it clear that [a]ctual injury occurs when the
client suffers any loss or injury legally cognizable as damages in a legal malpractice action based
on the asserted errors or omissions (Jordache Enterprises Inc v Brobeck Phleger and
Harrison (1998) 18 Cal4th 739 743 (Jordache)) The Jordache court determined that the loss
or diminution of a right or remedy constitutes injury or damage Neither uncertainty of amount
nor difficulty of proof renders that injury speculative or inchoate (fd at p 744) As explained
by the Supreme Court in determining actual injury the inquiry necessarily is more qualitative
than quantitative because the fact of damage rather than the amount is the critical factor (Id
at p 752)
In Jordache the plaintiff alleged that the defendant committed malpractice by failing to
advise the plaintiff to tender a complaint filed against it to its insurance carrier (fd at p 746)
As a result of the defendants omission significant time passed before the plaintiff tendered the
complaint to the insurer (Id at p 745) The insurance carrier argued that the plaintiffs late
tender relieved its obligation to provide benefits (Ibid) The plaintiff initiated litigation against
the insurer regarding the coverage issue and the viability of the insurers late tender defense
(Ibid) The plaintiff did not file its professional malpractice claim against the defendant until
after resolution of the coverage litigation (fd at p 746)
In evaluating when the actual injury occurred under Section 3406 the California
Supreme Court concluded that in addition to incurring legal fees to prosecute the coverage
dispute the defendants alleged omissions also gave the insurers an objectively viable defense
which consequently reduced those [insurance] claims settlement value (Id at p 743)
Because the insurers objection rendered the plaintiffs claims immediately less valuable than
they were prior to the assertion of such defense and because the defense arose as a result of the
plaintiffs counsels omission the plaintiff was actually injured within the meaning of Section
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3406 at the time the insurers defense was asserted (ld at pp 743-744) It does not matter
whether a plaintiff is able to quantify the amount by which its claims were devalued at the time
such a defense accrued and was asserted because actual injury may well precede quantifiable
financial costs (Adams v Paul (1995) 11 CaL4th 583 591 fn 5)
Thus under Jordache the test for actual injury under section 3406 therefore is
whether the plaintiff has sustained any damages compensable in an action against an attorney
for a wrongful act or omission arising in the performance of professional services (Jordache
18 CaL4th at p 751)
With respect to the present case the SDPOA suffered actual injury in the underlying
litigation matters when the trial courts entered judgment against the SDPOA Thus it suffered
actual injury in the McGuigan matter in December 2006 and it suffered actual injury in the
Aguirre matter in May 2007
c The SDPOA Discovered The Alleged Injuries In December 2006 and May
2007
To constitute discovery as that term is used in Section 3406 a plaintiff need only be
apprised of the fact that someone has done a wrong - plaintiff need not have a legal theory or
knowledge that he has a cause of action against an attorney at that point (McGee v Weinberg
(1979) 97 CaLApp3d 798 (lvfcGee) Worton v Worton (1991) 234 CaLApp3d 1368)
Discovery for purposes of triggering the commencement of the limitations period under Section
3406 occurs when the client discovered or should have discovered the facts giving rise to a
cause of action for legal malpractice As noted by the McGee court The test is whether the
plaintiff has information of circumstances sufficient to put a reasonable person on inquiry or has
the opportunity to obtain knowledge from sources open to his or her investigation (McGee 97
CaLApp3d at p 798)
Here the SDPOA knew it had lost the McGuigan case in December 2006 and the
Aguirre case in May 2007 The SDPOA also knew that its attorney client relationship with
Petersen terminated in March 2008 when he left the JDTP law firm
Defendant Petersens Demurrer To Complaint
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Thus as of March 2008 the SDPOA had information sufficient to put a reasonable
person on inquiry The possibility that the SDPOA may not have understood or that their
attorneys at JDTP may not have told them of all of the significance of Petersens departure from
the JDTP law firm (eg the commencement of the statute as to any claims against Petersen) does
not alter the fact that the SDPOA discovered (or should have discovered) the facts which gave
rise to their legal malpractice claims against Petersen no later than March 3 2008
D Plaintiffs Suffered Actual Injury More Than One Year Before Filing Their
Complaint And The Statute of Limitations Has Not Been Tolled
Under Code of Civil Procedure section 3406 an action must be commenced one year
from discovery unless tolled because among other things the attorney continues to represent the
plaintiff regarding the specific subject matter in which the alleged act or omission occurred
(Code Civ Proc sect 3406) In this case there is no dispute that Petersens representation of the
SDPOA terminated in March 2008 when he left the JDTP law firm and ceased his representation
of the SDPOA As such there is no tolling ofthe statute in this situation for continuous
representation The present situation is somewhat analogous to Beal Bank SSB v Arter amp
Hadden LLP (2007) 42 Ca14th 503 (Beal Bank)
Beal Bank acquired loans that contained default provisions and retained the AampH law
firm to handle the collection efforts The attorney handling the matter left the AampH law firm and
the attorneys new firm took over Beal Banks representation When the collections efforts were
unsuccessful Beal Bank sued the AampH law firm and the new law firm The AampH law firm
demurred to the malpractice complaint on the theory that when the lawyer left and took the client
with him there was no need to continue to toll the statute of limitations against the AampH law
firm due to continued representation The Supreme Court agreed and held that once the case
leaves the firm the representation of the prior firm ceases and the statute of limitations clock
begins to tick against the prior firm (Beal Bank 42 Ca14th at pp 512-514)
The Supreme Court recognized that this situation may require malpractice plaintiffs to
move swiftly and perhaps act in filing a lawsuit before the underlying action was resolved but
the Supreme Court did not let this concern affect its reasoning regarding when continuous
Defendant Petersens Demurrer To Complaint
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representation tolling ceases Here the clock for the SDPOAs malpractice claims against
Petersen commenced to tick in March 2008 when he left the JDTP law firm The SDPOA did
not file its action against Petersen within one year of March 2008 and therefore its legal
malpractice claim against him is time barred
The SDPOA may argue that because it appealed from the District Court and Superior
Courts orders in the underlying Aguirre and ~McGuigan litigation matters the statute of
limitations did not commence to run until the decisions on those appeals were rendered This
argument lacks merit and was rejected by the Jordache court when it determined that a causal
nexus between the injury and the malpractice does not need to be confirmed by settlement or
adjudication (Jordache 18 Cal4th at p 744) The Supreme Court reasoned that an existing
injury is not contingent or speculative simply because future events may effect its permanency or
the amount of monetary damages eventually incurred (fd at p 754)
Thus even if the SDPOA did not know whether future events (ie their appeals) may
effect the permanency of their injury (eg ruling that retiree benefits were not vested-
Complaint at 20) they still had suffered actual injury when the District Court and Superior Court
ruled against them and any tolling of the statute of limitations ended when Petersen departed the
JDTP law firm and his attorney-client relationship with the SDPOA terminated The fact that
appeals were still pending when he departed the JDTP law firm is of no consequence because in
determining actual injury the inquiry necessarily is more qualitative than quantitative because
the fact of damage rather than the amount is the critical factor (fd at p 752) The limitations
period is not tolled even ifthe injury is in some way remediable and appreciable actual injury
does not depend on the plaintiffs ability to attribute a quantifiable sum of money to
consequential damages (Jordache 18 Ca14th at p 750)
Here the underlying court records show Petersen no longer represented the SDPOA after
March 2008 The SDPOAs complaint offers no facts that would toll Section 3406 after the one
year limitations period commenced in March 2008 Because the SDPOA did not file this action
until March 29 2010 its claims against Petersen are time barred and this demurrer should be
sustained without leave to amend as to Petersen
-14shy--------- ---shy
Defendant Petersens Demurrer To Complaint
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V
PETERSENS DEMURRER SHOULD ALSO BE SUSTAINED BECAUSE THE SDPOA
HAS NOT PLEADED AND CANNOT PLEAD FACTS IN SUPPORT OF THE
CAUSATION AND DAMAGES ELEMENTS OF A CAUSES OF ACTION FOR LEGAL
MALPRACTICE
A To Prevail On A Claim For Legal Malpractice the Plaintiff Must Plead and
Prove the Defendant Caused the Plaintiffs Harm
The elements of a cause of action for professional negligence are (l) the duty ofthe
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 See ShopofJ amp Cavallo LLP v Hyon (2008) 167 CalApp4th 1489
1509 A claim for breach of contract also requires the plaintiff to prove that the defendants
breach caused the plaintiff to suffer damages See St Paul Fire amp Marin Ins Co v American
Dynasty Surplus Lines Ins Co (2002) 101 CaJApp4th 1038 1060 (An essential element of a
claim for breach of contract are damages resulting from the breach Causation ofdamages in
contract cases requires that the damages be proximately caused by the defendants breach)
The same causation test applies to both professional negligence and breach of contract claims
See Vasiion Therapeutics Inc v Foley amp Lardner LLP (SDCai 2008) 2008 WL 5147201 3 5
It is well settled that if the attorneys negligent conduct does not cause damage it
generates no cause of the action See ShopojJ 167 CaJApp4th at 1509 To show damages
proximately caused by the breach the pJaintiffmust demonstrate that but for the attorneys
malpractice it is more likely than not the plaintiff would have obtained a more favorable result
(d) See also Viner 30 Ca14th at 1240-43 Unless a party suffers damage as a consequence of
his attorneys negligence he cannot establish a cause of action for malpractice Breach of duty
causing only speculative harm is insufficient to create such a cause of action [D]amages may
5 SDPOA labels its claim as one for attorney malpractice and thus it is not clear if it intends to pursue a negligence theory a breach of contract theory or both See Complaint p 6 Regardless of whether the SDPOA pursues a tort or contract claim the same causation standard applies
-15shy----~---- ~----~~-~--~~~---------~------
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OC462991 v J
not be based upon sheer speculation or surmise and the mere possibility or even probability that
damage will result from wrongful conduct does not render it actionable Thompson v Halvonik
(1995) 36 CalAppAth 657 661-62
As the California Supreme Court made clear in the seminal Viner case the crucial
causation inquiry is what would have happened if the defendant attorney had not been negligent
This is so because the very idea of causation necessarily involves comparing historical events to
a hypothetical alternative Viner 30 CaL4th at 1242 (emphasis in original) Although the label
of the test may differ from case to case the rule underlying the test is always the same to
prevail on a malpractice claim the plaintiff must demonstrate that the attorneys negligence
caused the plaintiffs harm See Viner at 1240 n 4 (noting that the causation inquiry is also
sometimes described as the case within the case or the trial within the trial)
B Causation in a Legal Malpractice Case is Appropriately Treated as an Issue
of Law Rather Than Fact When the Underlying Litigation Was Decided
Based on a Question of Law
The element of causation in a legal malpractice case is treated as an issue of law which
the underlying litigation was decided on a question of law As one California court has
explained no jury can reach its own judgment on the proper outcome of an earlier case that
hinged on an issue of law Piscitelli v Friedenberg (2001) 87 CalAppAh 953 974 quoting
with approval from Chocktoot v Smith (Ore 1977) 571 P2d 1255 1258 see also id at 971
(explaining that [i]n legal malpractice cases whether a court or jury decides the underlying
case-within-a-case [turns on] whether the issues are predominantly questions of fact or law)
C The SDPOA Cannot Establish That Had Defendants Made a Different
Argument the Plaintiff Would Have Obtained a More Favorable Outcome
The SDPOAs causation allegation against Petersen is not merely tenuous it is nonshy
existent First the SDPOA alleges that it was adversely affected before the lawsuit was filed and
Defendants were retained when the City implemented its last bet final offer at the bargaining
table which had the effect of reducing retirement health benefit As a matter of law Petersen is
not the cause of the Citys bargaining position Moreover the underlying litigation on which the
Defendant Petersens Demurrer To Complaint
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OCI46299I v I
SDPOAs legal malpractice claims are based were part of the SDPOAs response to the Citys
reduction of the health benefits
Second Plaintiff argues that because the Defendants did not put on evidence of some
unidentified and undisputed facts or make unidentifled arguments or cite unidentified precedent
the trial courts in those matters wrongly decided issues concerning whether the SDPOAs
members retirement health benefits were vested
Whether retirement health benefits were vested under the federal law at issue in the
underlying litigation was a contested issue of law the opposing parties in the underlying action
were represented by very able counsel (the law firms of Latham amp Watkins and Seltzer Caplan
McMahon Vitek) and the legal issues were before and decided by judges after extensive
litigation briefing and argument After considering the law those judges unanimously ruled that
as a matter of law the benefits were not vested The SDPOA cannot possibly satisfy its burden
of proving by a preponderance of the evidence that this legal result was the fault of the
defendants ie that had the defendants only done something different it is more likely than not
that the questions of federal law in the underlying litigation would have been resolved
differently See Shopof[ 167 CalApp4th at 1509 Viner 30 Ca14th at 1240-43 Stated
differently whether the SDPOAs complaint is pure speculation - which it is - is a question of
law for this Court in this demurrer
In addition the same fatal flaw arises because the SDPOA through their present attorney
dismissed its state law claims The SDPOAs voluntary dismissal of its state law claims
precludes it from making the current legal malpractice claim By dismissing those claims the
SDPOA made it impossible to demonstrate but for causation in this case If the SDPOA
suffered any harm it has been on account of its own voluntary actions that have nothing to do
with Petersen and the claims alleged against him here
Lastly it is frivolous for Plaintiff to contend that the Defendants should bear
responsibility for the Citys decision to amend its Municipal Code and impose an $8800 cap on
annual retirement health benefits These Defendants have no control over the City and are not a
-17shyDefendant Petersens Demurrer To Complaint
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1 cause of the Citys own financial predicament and did not cause the City to decide to reduce the
2 SDPOAs members benefits before the underlying lawsuits had even been filed
3 VI
4 CONCLUSION
As discussed above there are at least two reasons why this demurrer should be sustained
6 without leave to amend First the SDPOAs complaint and court records from the underlying
7 litigation firmly establish that the SDPOAs claim against defendant Petersen is barred by the
8 one year statute of limitations applicable to legal malpractice actions Second the SDPOAs
9 allegations also firmly establish that Petersen did not cause the SDPOA any damage as a matter
oflaw
11 For these reasons defendant Petersens demurrer to Plaintiffs complaint should be
12 sustained Moreover because no amendment will change this result this demurrer should be
13 sustained without leave to amend
14
DATED May 142010 SEDGWICK DETERT MORAN amp ARNOLD LLP
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By1~~tra18 Gregory H Halliday
Frederick B Hayes 19 Attorneys for Defendant
GREGORY GLENN PETERSEN
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OC46299 I v I 8shyDefendant Petersens Demurrer To Complaint
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PROOF OF SERVICE
San Diego Police Officers Association v Jackson Deivfarco Tidus amp Peckenpaugh et al San Diego Superior Court Case No 37-2010-00088794-CU-PN-CTL
I am a resident of the State of California over the age of eighteen years and not a party to the within action My business address is Sedgwick Detert Moran amp Arnold LLP 3 Park Plaza 17th Floor Irvine California 92614middot8540 On May 142010 I served the within document(s)
DEFENDANT GREGORY GLENN PETERSENS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS COMPLAINT MEMORANDUM OF POINTS AND
AUTHORITIES
o FACSIMILEmiddot by transmitting via facsimile the document(s) listed above to the fax number(s) set forth on the attached Telecommunications Cover Page(s) on this date before 500 pm
MAILmiddot by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid in the United States mail at Irvine California addressed as set forth below
PERSONAL SERVICE - by personally delivering the document(s) listed above to the persltm(s) at the addressees) set forth below
o OVERNIGHT COURIER - by placing the document(s) listed above in a sealed envelope with shipping prepaid and depositing in a collection box for next day delivery to the person(s) at the addressees) set forth below via OverNite Express
SEE ATTACHED LIST
I am readily familiar with the finns practice of collection and processing correspondence for mailing Under that practice it would be deposited with the US Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business I am aware that on motion of the party served service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit
I declare under penalty of perjury under the laws of the State of California that the above is true and correct Executed on May 142010 at Irvine California
OCI463303v I
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San Diego Police Officers Association v Jackson Ddvfarco Tidus amp Peckenpaugh et ai SDSC Case No 37-2010-00088794-CU-PN-CTL
2 ProofofService shy Page 2
3
4 I Michael A Conger Esq AhUUltys for Plaintiff Law Office of Michael A Conger San Diego Police Officers Association 16236 San Dieguito Road Suite 4-14 PO Box 9374 (858) 759-0200 - telephone
6 Rancho Santa Fe CA 92067 (858) 759-1906 facsimile congermike(aJaoLcom
7 Gregory A Long Esq Attorneys for Defendants
8 Sheppard Mullin Richter amp Hampton LLP Jackson DeMarco Tidus amp Peckenpaugh 333 S Hope Street 48 th Floor
9 Los Angeles CA 90071 (213) 617-5443 phone (213) 620-1398 - facsimile
Iglongsheppardmullincom
11 Matthew W Holder Esq
12 Sheppard Mullin Richter amp HamptonLLP 12275 EI Camino Real Suite 200
13 San Diego CA 92130-2006
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OC463303v I
Attorneys for Defendants Jackson DeMarco Tidus amp Peckenpaugh
(858) 720-8900 - phone (858) 509-3691 facsimile mholdersheppardmullincom
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OC4 62991 v I
In other words court records firmly establish that the SDPOAs cause ofact10n for legal
malpractice against Petersen accrued no later than March 2008 As of March 2008 the SDPOA
had alleged suffered actual harm as a result of Petersens malpractice and he was not longer
representing it Accordingly the one year statute for any claim the SDPOA had against Petersen
for legal malpractice arising from the McGuigan and Aguirre matters commenced to run in
March 2008 Because the SDPOA did not file this lawsuit until March 29 2010 its claim for
legal malpractice against Petersen is time barred by Section 3406
III
DEMURRER IS PROPER WHERE ACTION IS BARRED
BY STATUTE OF LIMITATIONS
The party against whom a complaint has been filed may object by demurrer as
provided in Section 43030 to the pleading on the grounds that [tJhe pleading does not
state facts sufficient to constitute a cause of action (Code Civ Proc sect 43010 subd (e))
When the plaintiffs action is barred by the statute of limitations a general demurrer (ie
the pleading does not state facts sufficient to constitute a cause of action) is proper (Saliter v
Pierce Bros lvfortuaries (1978) 81 CaLApp3d 292300 fn 2 Iverson Yoakum Papiano amp
Hatch v Berwald (1999) 76 CalApp4th 990 995)
A demurrer is also appropriate if a pleading does not state facts sufficient to constitute a
cause of action Code Civ Proc sect 430l0e) Bockrath v Aldrich Chemical Co (1999) 21
Ca14th 7183 Here the SDPOA cannot state facts to support the causation and damages
elements of its legal malpractice cause of action Although a court must on demurrer accept as
true properly pleaded facts a demurrer does not admit contentions or conclusions of law or fact
freeman v San Diego Ass n ofRealtors (l999) 77 CaLApp4th 71 185 n 11
Under Section 43030 a demurrer can also be based on matter subject to judicial notice
is properly based on any matter of which the court is required to or may take judicial notice
(Code Civ Proc sect 43030 subd (a)) Under Evidence Code section 452(d) the court can take
judicial notice of the court records of any court of record of the United States (Evid Code sect
Defendant Petersens Demurrer To Complaint
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452(d))4 When court records subject to judicial notice disclose an absolute defense to the action
or a deficiency in the complaint the matter can be adjudicated at by way of demurrer
(Bistawros v Greenberg (1987) 189 CalApp3d 189 192 [court took judicial notice of its own
files in sustaining demurrer on ground of another action pending between same parties on same
cause1 see also Frornrnhagen v Board ofSupervisors ofSanta Cruz County (1987) 197
Ca1App3d 1292 1299 [court took judicial notice of complaint in prior action] Britz Inc v
Dow Chern Co (1999) 73 CalAppAth 177 180 [in ruling on demurrer court could take judicial
notice of prior order approving good faith settlement under Code of Civil Procedure sect 8776])
Here defendant Petersen requests that this court take judicial notice pursuant to Evidence
Code section 452(d) of the court records including court orders in the underlying actions on
which the SDPOAs present legal malpractice claims are based namely San Diego Police
Officers Association v Aguirre et al USDC Case No 05-CV -1581 McGuigan v City ofSan
Diego San Diego County Case No OIC 949883 and the action by the SDPOAs members
Aaron et al v Aguirre et at (Aaron) USDC Case No 06-CV -1451
These court records establish that as of March 2008 the SDPOA had allegedly suffered
actual injury and its attorney-client relationship with Petersen terminated Accordingly as of
March 2008 the one year statute commenced to run The SDPOAs failure to file its lawsuit
against Petersen within one year of March 2008 means its claim against him is now time barred
IV
THE ENTIRE ACTION AGAINST PETERSEN IS BARRED
BY CODE OF CIVIL PROCEDURE SECTION 3406
A The One Year Statute of Limitations Set Forth In Section 3406 Applies To
The SDPOAs Claims
The SDPOAs claims against Petersen are barred by the one year statute of limitations set
forth in Section 3406 which is the statute of limitations for all actions against attorneys for
4 Evidence Code section 452 provides as follows Judicial notice may be taken ofthe following matters (~~J (d) Records of (1) any court of this state or (2) any court of record of the United States
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alleged wrongful acts or omissions arising out of the rendition of professional services
(Crowley v Katleman (1994) 8 Ca14th 666681-682) Section 3406 states
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 ofthe wrongful act or omission whichever occurs first (Code Civ Proc sect 3406(a))
Where an attorney has been accused of wrongful conduct the courts recognize that
regardless of the labels attached to the pleadings allegations the gravamen of the complaint is
legal malpractice (Kracht v Perrin Gartland amp Doyle (1990) 219 CalApp3d 1019 1022-1023
(Kracht) [complaint for breach of statutory duty constructive fraud and ordinary negligence
treated as malpractice claim for purposes of upholding order sustaining demurrer without leave
to amend] Jackson v Rogers amp Wells (1989) 210 CaLApp3d 336346349 [fraud and breach of
contract theories where alleged misfeasance Were acts requiring professional judgment calls
treated as malpractice claims for assignability purposes]) California case law treats all actions
arising out of the wrongful acts or omissions of attorneys as falling under the umbrella of legal
malpractice (Pompilio v Kosmo Cho amp Brown (1995) 39 CalAppAth 1324 1329 [plaintiffs
breach of fiduciary duty cause of action for attorneys errors and omissions sounds in legal
malpractice] see also Levin v Graham amp James (1995) 37 CalAppAth 798 Thompson v
Halvonik (1995) 36 CalAppAth 657664 Jacoby v Schenkel (1995) 36 CalAppAth 1701
Radovich v Locke-Paddon (1995) 35 CalAppAth 946 966 Stoll v Superior Court (1992) 9
CalAppAth 1362 1368)
Put simply when the claim concerns an alleged injury arising by reason of an attorneys
professional negligence the claim is one for legal malpractice subject to the statute of limitations
set forth in Section 3406 (Kracht 219 CaLApp3d at pp 1022-1023) Here the thrust of the
SDPOAs claim is that the Defendants including Petersen negligently handled the underlying
litigation (Complaint ~20) The complaints allegations plainly establish that the SDPOA is
suing Defendants for alleged errors and omissions arising from the provision oflegal services
Defendant Petersens Demurrer To Complaint
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OC46299 IvI
with respect to underlying litigation Thus the applicable statute of limitations is Section 3406
(Kracht 219 CalApp3d at pp 1022-1023)
B The SDPOA Suffered Actual Injury When The Underlying Trial Courts
Entered Judgment Against It In The Underlying Litigation Matters
The California Supreme Court has made it clear that [a]ctual injury occurs when the
client suffers any loss or injury legally cognizable as damages in a legal malpractice action based
on the asserted errors or omissions (Jordache Enterprises Inc v Brobeck Phleger and
Harrison (1998) 18 Cal4th 739 743 (Jordache)) The Jordache court determined that the loss
or diminution of a right or remedy constitutes injury or damage Neither uncertainty of amount
nor difficulty of proof renders that injury speculative or inchoate (fd at p 744) As explained
by the Supreme Court in determining actual injury the inquiry necessarily is more qualitative
than quantitative because the fact of damage rather than the amount is the critical factor (Id
at p 752)
In Jordache the plaintiff alleged that the defendant committed malpractice by failing to
advise the plaintiff to tender a complaint filed against it to its insurance carrier (fd at p 746)
As a result of the defendants omission significant time passed before the plaintiff tendered the
complaint to the insurer (Id at p 745) The insurance carrier argued that the plaintiffs late
tender relieved its obligation to provide benefits (Ibid) The plaintiff initiated litigation against
the insurer regarding the coverage issue and the viability of the insurers late tender defense
(Ibid) The plaintiff did not file its professional malpractice claim against the defendant until
after resolution of the coverage litigation (fd at p 746)
In evaluating when the actual injury occurred under Section 3406 the California
Supreme Court concluded that in addition to incurring legal fees to prosecute the coverage
dispute the defendants alleged omissions also gave the insurers an objectively viable defense
which consequently reduced those [insurance] claims settlement value (Id at p 743)
Because the insurers objection rendered the plaintiffs claims immediately less valuable than
they were prior to the assertion of such defense and because the defense arose as a result of the
plaintiffs counsels omission the plaintiff was actually injured within the meaning of Section
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3406 at the time the insurers defense was asserted (ld at pp 743-744) It does not matter
whether a plaintiff is able to quantify the amount by which its claims were devalued at the time
such a defense accrued and was asserted because actual injury may well precede quantifiable
financial costs (Adams v Paul (1995) 11 CaL4th 583 591 fn 5)
Thus under Jordache the test for actual injury under section 3406 therefore is
whether the plaintiff has sustained any damages compensable in an action against an attorney
for a wrongful act or omission arising in the performance of professional services (Jordache
18 CaL4th at p 751)
With respect to the present case the SDPOA suffered actual injury in the underlying
litigation matters when the trial courts entered judgment against the SDPOA Thus it suffered
actual injury in the McGuigan matter in December 2006 and it suffered actual injury in the
Aguirre matter in May 2007
c The SDPOA Discovered The Alleged Injuries In December 2006 and May
2007
To constitute discovery as that term is used in Section 3406 a plaintiff need only be
apprised of the fact that someone has done a wrong - plaintiff need not have a legal theory or
knowledge that he has a cause of action against an attorney at that point (McGee v Weinberg
(1979) 97 CaLApp3d 798 (lvfcGee) Worton v Worton (1991) 234 CaLApp3d 1368)
Discovery for purposes of triggering the commencement of the limitations period under Section
3406 occurs when the client discovered or should have discovered the facts giving rise to a
cause of action for legal malpractice As noted by the McGee court The test is whether the
plaintiff has information of circumstances sufficient to put a reasonable person on inquiry or has
the opportunity to obtain knowledge from sources open to his or her investigation (McGee 97
CaLApp3d at p 798)
Here the SDPOA knew it had lost the McGuigan case in December 2006 and the
Aguirre case in May 2007 The SDPOA also knew that its attorney client relationship with
Petersen terminated in March 2008 when he left the JDTP law firm
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Thus as of March 2008 the SDPOA had information sufficient to put a reasonable
person on inquiry The possibility that the SDPOA may not have understood or that their
attorneys at JDTP may not have told them of all of the significance of Petersens departure from
the JDTP law firm (eg the commencement of the statute as to any claims against Petersen) does
not alter the fact that the SDPOA discovered (or should have discovered) the facts which gave
rise to their legal malpractice claims against Petersen no later than March 3 2008
D Plaintiffs Suffered Actual Injury More Than One Year Before Filing Their
Complaint And The Statute of Limitations Has Not Been Tolled
Under Code of Civil Procedure section 3406 an action must be commenced one year
from discovery unless tolled because among other things the attorney continues to represent the
plaintiff regarding the specific subject matter in which the alleged act or omission occurred
(Code Civ Proc sect 3406) In this case there is no dispute that Petersens representation of the
SDPOA terminated in March 2008 when he left the JDTP law firm and ceased his representation
of the SDPOA As such there is no tolling ofthe statute in this situation for continuous
representation The present situation is somewhat analogous to Beal Bank SSB v Arter amp
Hadden LLP (2007) 42 Ca14th 503 (Beal Bank)
Beal Bank acquired loans that contained default provisions and retained the AampH law
firm to handle the collection efforts The attorney handling the matter left the AampH law firm and
the attorneys new firm took over Beal Banks representation When the collections efforts were
unsuccessful Beal Bank sued the AampH law firm and the new law firm The AampH law firm
demurred to the malpractice complaint on the theory that when the lawyer left and took the client
with him there was no need to continue to toll the statute of limitations against the AampH law
firm due to continued representation The Supreme Court agreed and held that once the case
leaves the firm the representation of the prior firm ceases and the statute of limitations clock
begins to tick against the prior firm (Beal Bank 42 Ca14th at pp 512-514)
The Supreme Court recognized that this situation may require malpractice plaintiffs to
move swiftly and perhaps act in filing a lawsuit before the underlying action was resolved but
the Supreme Court did not let this concern affect its reasoning regarding when continuous
Defendant Petersens Demurrer To Complaint
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representation tolling ceases Here the clock for the SDPOAs malpractice claims against
Petersen commenced to tick in March 2008 when he left the JDTP law firm The SDPOA did
not file its action against Petersen within one year of March 2008 and therefore its legal
malpractice claim against him is time barred
The SDPOA may argue that because it appealed from the District Court and Superior
Courts orders in the underlying Aguirre and ~McGuigan litigation matters the statute of
limitations did not commence to run until the decisions on those appeals were rendered This
argument lacks merit and was rejected by the Jordache court when it determined that a causal
nexus between the injury and the malpractice does not need to be confirmed by settlement or
adjudication (Jordache 18 Cal4th at p 744) The Supreme Court reasoned that an existing
injury is not contingent or speculative simply because future events may effect its permanency or
the amount of monetary damages eventually incurred (fd at p 754)
Thus even if the SDPOA did not know whether future events (ie their appeals) may
effect the permanency of their injury (eg ruling that retiree benefits were not vested-
Complaint at 20) they still had suffered actual injury when the District Court and Superior Court
ruled against them and any tolling of the statute of limitations ended when Petersen departed the
JDTP law firm and his attorney-client relationship with the SDPOA terminated The fact that
appeals were still pending when he departed the JDTP law firm is of no consequence because in
determining actual injury the inquiry necessarily is more qualitative than quantitative because
the fact of damage rather than the amount is the critical factor (fd at p 752) The limitations
period is not tolled even ifthe injury is in some way remediable and appreciable actual injury
does not depend on the plaintiffs ability to attribute a quantifiable sum of money to
consequential damages (Jordache 18 Ca14th at p 750)
Here the underlying court records show Petersen no longer represented the SDPOA after
March 2008 The SDPOAs complaint offers no facts that would toll Section 3406 after the one
year limitations period commenced in March 2008 Because the SDPOA did not file this action
until March 29 2010 its claims against Petersen are time barred and this demurrer should be
sustained without leave to amend as to Petersen
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Defendant Petersens Demurrer To Complaint
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V
PETERSENS DEMURRER SHOULD ALSO BE SUSTAINED BECAUSE THE SDPOA
HAS NOT PLEADED AND CANNOT PLEAD FACTS IN SUPPORT OF THE
CAUSATION AND DAMAGES ELEMENTS OF A CAUSES OF ACTION FOR LEGAL
MALPRACTICE
A To Prevail On A Claim For Legal Malpractice the Plaintiff Must Plead and
Prove the Defendant Caused the Plaintiffs Harm
The elements of a cause of action for professional negligence are (l) the duty ofthe
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 See ShopofJ amp Cavallo LLP v Hyon (2008) 167 CalApp4th 1489
1509 A claim for breach of contract also requires the plaintiff to prove that the defendants
breach caused the plaintiff to suffer damages See St Paul Fire amp Marin Ins Co v American
Dynasty Surplus Lines Ins Co (2002) 101 CaJApp4th 1038 1060 (An essential element of a
claim for breach of contract are damages resulting from the breach Causation ofdamages in
contract cases requires that the damages be proximately caused by the defendants breach)
The same causation test applies to both professional negligence and breach of contract claims
See Vasiion Therapeutics Inc v Foley amp Lardner LLP (SDCai 2008) 2008 WL 5147201 3 5
It is well settled that if the attorneys negligent conduct does not cause damage it
generates no cause of the action See ShopojJ 167 CaJApp4th at 1509 To show damages
proximately caused by the breach the pJaintiffmust demonstrate that but for the attorneys
malpractice it is more likely than not the plaintiff would have obtained a more favorable result
(d) See also Viner 30 Ca14th at 1240-43 Unless a party suffers damage as a consequence of
his attorneys negligence he cannot establish a cause of action for malpractice Breach of duty
causing only speculative harm is insufficient to create such a cause of action [D]amages may
5 SDPOA labels its claim as one for attorney malpractice and thus it is not clear if it intends to pursue a negligence theory a breach of contract theory or both See Complaint p 6 Regardless of whether the SDPOA pursues a tort or contract claim the same causation standard applies
-15shy----~---- ~----~~-~--~~~---------~------
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not be based upon sheer speculation or surmise and the mere possibility or even probability that
damage will result from wrongful conduct does not render it actionable Thompson v Halvonik
(1995) 36 CalAppAth 657 661-62
As the California Supreme Court made clear in the seminal Viner case the crucial
causation inquiry is what would have happened if the defendant attorney had not been negligent
This is so because the very idea of causation necessarily involves comparing historical events to
a hypothetical alternative Viner 30 CaL4th at 1242 (emphasis in original) Although the label
of the test may differ from case to case the rule underlying the test is always the same to
prevail on a malpractice claim the plaintiff must demonstrate that the attorneys negligence
caused the plaintiffs harm See Viner at 1240 n 4 (noting that the causation inquiry is also
sometimes described as the case within the case or the trial within the trial)
B Causation in a Legal Malpractice Case is Appropriately Treated as an Issue
of Law Rather Than Fact When the Underlying Litigation Was Decided
Based on a Question of Law
The element of causation in a legal malpractice case is treated as an issue of law which
the underlying litigation was decided on a question of law As one California court has
explained no jury can reach its own judgment on the proper outcome of an earlier case that
hinged on an issue of law Piscitelli v Friedenberg (2001) 87 CalAppAh 953 974 quoting
with approval from Chocktoot v Smith (Ore 1977) 571 P2d 1255 1258 see also id at 971
(explaining that [i]n legal malpractice cases whether a court or jury decides the underlying
case-within-a-case [turns on] whether the issues are predominantly questions of fact or law)
C The SDPOA Cannot Establish That Had Defendants Made a Different
Argument the Plaintiff Would Have Obtained a More Favorable Outcome
The SDPOAs causation allegation against Petersen is not merely tenuous it is nonshy
existent First the SDPOA alleges that it was adversely affected before the lawsuit was filed and
Defendants were retained when the City implemented its last bet final offer at the bargaining
table which had the effect of reducing retirement health benefit As a matter of law Petersen is
not the cause of the Citys bargaining position Moreover the underlying litigation on which the
Defendant Petersens Demurrer To Complaint
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SDPOAs legal malpractice claims are based were part of the SDPOAs response to the Citys
reduction of the health benefits
Second Plaintiff argues that because the Defendants did not put on evidence of some
unidentified and undisputed facts or make unidentifled arguments or cite unidentified precedent
the trial courts in those matters wrongly decided issues concerning whether the SDPOAs
members retirement health benefits were vested
Whether retirement health benefits were vested under the federal law at issue in the
underlying litigation was a contested issue of law the opposing parties in the underlying action
were represented by very able counsel (the law firms of Latham amp Watkins and Seltzer Caplan
McMahon Vitek) and the legal issues were before and decided by judges after extensive
litigation briefing and argument After considering the law those judges unanimously ruled that
as a matter of law the benefits were not vested The SDPOA cannot possibly satisfy its burden
of proving by a preponderance of the evidence that this legal result was the fault of the
defendants ie that had the defendants only done something different it is more likely than not
that the questions of federal law in the underlying litigation would have been resolved
differently See Shopof[ 167 CalApp4th at 1509 Viner 30 Ca14th at 1240-43 Stated
differently whether the SDPOAs complaint is pure speculation - which it is - is a question of
law for this Court in this demurrer
In addition the same fatal flaw arises because the SDPOA through their present attorney
dismissed its state law claims The SDPOAs voluntary dismissal of its state law claims
precludes it from making the current legal malpractice claim By dismissing those claims the
SDPOA made it impossible to demonstrate but for causation in this case If the SDPOA
suffered any harm it has been on account of its own voluntary actions that have nothing to do
with Petersen and the claims alleged against him here
Lastly it is frivolous for Plaintiff to contend that the Defendants should bear
responsibility for the Citys decision to amend its Municipal Code and impose an $8800 cap on
annual retirement health benefits These Defendants have no control over the City and are not a
-17shyDefendant Petersens Demurrer To Complaint
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1 cause of the Citys own financial predicament and did not cause the City to decide to reduce the
2 SDPOAs members benefits before the underlying lawsuits had even been filed
3 VI
4 CONCLUSION
As discussed above there are at least two reasons why this demurrer should be sustained
6 without leave to amend First the SDPOAs complaint and court records from the underlying
7 litigation firmly establish that the SDPOAs claim against defendant Petersen is barred by the
8 one year statute of limitations applicable to legal malpractice actions Second the SDPOAs
9 allegations also firmly establish that Petersen did not cause the SDPOA any damage as a matter
oflaw
11 For these reasons defendant Petersens demurrer to Plaintiffs complaint should be
12 sustained Moreover because no amendment will change this result this demurrer should be
13 sustained without leave to amend
14
DATED May 142010 SEDGWICK DETERT MORAN amp ARNOLD LLP
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By1~~tra18 Gregory H Halliday
Frederick B Hayes 19 Attorneys for Defendant
GREGORY GLENN PETERSEN
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OC46299 I v I 8shyDefendant Petersens Demurrer To Complaint
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PROOF OF SERVICE
San Diego Police Officers Association v Jackson Deivfarco Tidus amp Peckenpaugh et al San Diego Superior Court Case No 37-2010-00088794-CU-PN-CTL
I am a resident of the State of California over the age of eighteen years and not a party to the within action My business address is Sedgwick Detert Moran amp Arnold LLP 3 Park Plaza 17th Floor Irvine California 92614middot8540 On May 142010 I served the within document(s)
DEFENDANT GREGORY GLENN PETERSENS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS COMPLAINT MEMORANDUM OF POINTS AND
AUTHORITIES
o FACSIMILEmiddot by transmitting via facsimile the document(s) listed above to the fax number(s) set forth on the attached Telecommunications Cover Page(s) on this date before 500 pm
MAILmiddot by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid in the United States mail at Irvine California addressed as set forth below
PERSONAL SERVICE - by personally delivering the document(s) listed above to the persltm(s) at the addressees) set forth below
o OVERNIGHT COURIER - by placing the document(s) listed above in a sealed envelope with shipping prepaid and depositing in a collection box for next day delivery to the person(s) at the addressees) set forth below via OverNite Express
SEE ATTACHED LIST
I am readily familiar with the finns practice of collection and processing correspondence for mailing Under that practice it would be deposited with the US Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business I am aware that on motion of the party served service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit
I declare under penalty of perjury under the laws of the State of California that the above is true and correct Executed on May 142010 at Irvine California
OCI463303v I
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San Diego Police Officers Association v Jackson Ddvfarco Tidus amp Peckenpaugh et ai SDSC Case No 37-2010-00088794-CU-PN-CTL
2 ProofofService shy Page 2
3
4 I Michael A Conger Esq AhUUltys for Plaintiff Law Office of Michael A Conger San Diego Police Officers Association 16236 San Dieguito Road Suite 4-14 PO Box 9374 (858) 759-0200 - telephone
6 Rancho Santa Fe CA 92067 (858) 759-1906 facsimile congermike(aJaoLcom
7 Gregory A Long Esq Attorneys for Defendants
8 Sheppard Mullin Richter amp Hampton LLP Jackson DeMarco Tidus amp Peckenpaugh 333 S Hope Street 48 th Floor
9 Los Angeles CA 90071 (213) 617-5443 phone (213) 620-1398 - facsimile
Iglongsheppardmullincom
11 Matthew W Holder Esq
12 Sheppard Mullin Richter amp HamptonLLP 12275 EI Camino Real Suite 200
13 San Diego CA 92130-2006
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OC463303v I
Attorneys for Defendants Jackson DeMarco Tidus amp Peckenpaugh
(858) 720-8900 - phone (858) 509-3691 facsimile mholdersheppardmullincom
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452(d))4 When court records subject to judicial notice disclose an absolute defense to the action
or a deficiency in the complaint the matter can be adjudicated at by way of demurrer
(Bistawros v Greenberg (1987) 189 CalApp3d 189 192 [court took judicial notice of its own
files in sustaining demurrer on ground of another action pending between same parties on same
cause1 see also Frornrnhagen v Board ofSupervisors ofSanta Cruz County (1987) 197
Ca1App3d 1292 1299 [court took judicial notice of complaint in prior action] Britz Inc v
Dow Chern Co (1999) 73 CalAppAth 177 180 [in ruling on demurrer court could take judicial
notice of prior order approving good faith settlement under Code of Civil Procedure sect 8776])
Here defendant Petersen requests that this court take judicial notice pursuant to Evidence
Code section 452(d) of the court records including court orders in the underlying actions on
which the SDPOAs present legal malpractice claims are based namely San Diego Police
Officers Association v Aguirre et al USDC Case No 05-CV -1581 McGuigan v City ofSan
Diego San Diego County Case No OIC 949883 and the action by the SDPOAs members
Aaron et al v Aguirre et at (Aaron) USDC Case No 06-CV -1451
These court records establish that as of March 2008 the SDPOA had allegedly suffered
actual injury and its attorney-client relationship with Petersen terminated Accordingly as of
March 2008 the one year statute commenced to run The SDPOAs failure to file its lawsuit
against Petersen within one year of March 2008 means its claim against him is now time barred
IV
THE ENTIRE ACTION AGAINST PETERSEN IS BARRED
BY CODE OF CIVIL PROCEDURE SECTION 3406
A The One Year Statute of Limitations Set Forth In Section 3406 Applies To
The SDPOAs Claims
The SDPOAs claims against Petersen are barred by the one year statute of limitations set
forth in Section 3406 which is the statute of limitations for all actions against attorneys for
4 Evidence Code section 452 provides as follows Judicial notice may be taken ofthe following matters (~~J (d) Records of (1) any court of this state or (2) any court of record of the United States
Defendant Petersens Demurrer To Complaint
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0CI462991vl
alleged wrongful acts or omissions arising out of the rendition of professional services
(Crowley v Katleman (1994) 8 Ca14th 666681-682) Section 3406 states
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 ofthe wrongful act or omission whichever occurs first (Code Civ Proc sect 3406(a))
Where an attorney has been accused of wrongful conduct the courts recognize that
regardless of the labels attached to the pleadings allegations the gravamen of the complaint is
legal malpractice (Kracht v Perrin Gartland amp Doyle (1990) 219 CalApp3d 1019 1022-1023
(Kracht) [complaint for breach of statutory duty constructive fraud and ordinary negligence
treated as malpractice claim for purposes of upholding order sustaining demurrer without leave
to amend] Jackson v Rogers amp Wells (1989) 210 CaLApp3d 336346349 [fraud and breach of
contract theories where alleged misfeasance Were acts requiring professional judgment calls
treated as malpractice claims for assignability purposes]) California case law treats all actions
arising out of the wrongful acts or omissions of attorneys as falling under the umbrella of legal
malpractice (Pompilio v Kosmo Cho amp Brown (1995) 39 CalAppAth 1324 1329 [plaintiffs
breach of fiduciary duty cause of action for attorneys errors and omissions sounds in legal
malpractice] see also Levin v Graham amp James (1995) 37 CalAppAth 798 Thompson v
Halvonik (1995) 36 CalAppAth 657664 Jacoby v Schenkel (1995) 36 CalAppAth 1701
Radovich v Locke-Paddon (1995) 35 CalAppAth 946 966 Stoll v Superior Court (1992) 9
CalAppAth 1362 1368)
Put simply when the claim concerns an alleged injury arising by reason of an attorneys
professional negligence the claim is one for legal malpractice subject to the statute of limitations
set forth in Section 3406 (Kracht 219 CaLApp3d at pp 1022-1023) Here the thrust of the
SDPOAs claim is that the Defendants including Petersen negligently handled the underlying
litigation (Complaint ~20) The complaints allegations plainly establish that the SDPOA is
suing Defendants for alleged errors and omissions arising from the provision oflegal services
Defendant Petersens Demurrer To Complaint
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OC46299 IvI
with respect to underlying litigation Thus the applicable statute of limitations is Section 3406
(Kracht 219 CalApp3d at pp 1022-1023)
B The SDPOA Suffered Actual Injury When The Underlying Trial Courts
Entered Judgment Against It In The Underlying Litigation Matters
The California Supreme Court has made it clear that [a]ctual injury occurs when the
client suffers any loss or injury legally cognizable as damages in a legal malpractice action based
on the asserted errors or omissions (Jordache Enterprises Inc v Brobeck Phleger and
Harrison (1998) 18 Cal4th 739 743 (Jordache)) The Jordache court determined that the loss
or diminution of a right or remedy constitutes injury or damage Neither uncertainty of amount
nor difficulty of proof renders that injury speculative or inchoate (fd at p 744) As explained
by the Supreme Court in determining actual injury the inquiry necessarily is more qualitative
than quantitative because the fact of damage rather than the amount is the critical factor (Id
at p 752)
In Jordache the plaintiff alleged that the defendant committed malpractice by failing to
advise the plaintiff to tender a complaint filed against it to its insurance carrier (fd at p 746)
As a result of the defendants omission significant time passed before the plaintiff tendered the
complaint to the insurer (Id at p 745) The insurance carrier argued that the plaintiffs late
tender relieved its obligation to provide benefits (Ibid) The plaintiff initiated litigation against
the insurer regarding the coverage issue and the viability of the insurers late tender defense
(Ibid) The plaintiff did not file its professional malpractice claim against the defendant until
after resolution of the coverage litigation (fd at p 746)
In evaluating when the actual injury occurred under Section 3406 the California
Supreme Court concluded that in addition to incurring legal fees to prosecute the coverage
dispute the defendants alleged omissions also gave the insurers an objectively viable defense
which consequently reduced those [insurance] claims settlement value (Id at p 743)
Because the insurers objection rendered the plaintiffs claims immediately less valuable than
they were prior to the assertion of such defense and because the defense arose as a result of the
plaintiffs counsels omission the plaintiff was actually injured within the meaning of Section
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3406 at the time the insurers defense was asserted (ld at pp 743-744) It does not matter
whether a plaintiff is able to quantify the amount by which its claims were devalued at the time
such a defense accrued and was asserted because actual injury may well precede quantifiable
financial costs (Adams v Paul (1995) 11 CaL4th 583 591 fn 5)
Thus under Jordache the test for actual injury under section 3406 therefore is
whether the plaintiff has sustained any damages compensable in an action against an attorney
for a wrongful act or omission arising in the performance of professional services (Jordache
18 CaL4th at p 751)
With respect to the present case the SDPOA suffered actual injury in the underlying
litigation matters when the trial courts entered judgment against the SDPOA Thus it suffered
actual injury in the McGuigan matter in December 2006 and it suffered actual injury in the
Aguirre matter in May 2007
c The SDPOA Discovered The Alleged Injuries In December 2006 and May
2007
To constitute discovery as that term is used in Section 3406 a plaintiff need only be
apprised of the fact that someone has done a wrong - plaintiff need not have a legal theory or
knowledge that he has a cause of action against an attorney at that point (McGee v Weinberg
(1979) 97 CaLApp3d 798 (lvfcGee) Worton v Worton (1991) 234 CaLApp3d 1368)
Discovery for purposes of triggering the commencement of the limitations period under Section
3406 occurs when the client discovered or should have discovered the facts giving rise to a
cause of action for legal malpractice As noted by the McGee court The test is whether the
plaintiff has information of circumstances sufficient to put a reasonable person on inquiry or has
the opportunity to obtain knowledge from sources open to his or her investigation (McGee 97
CaLApp3d at p 798)
Here the SDPOA knew it had lost the McGuigan case in December 2006 and the
Aguirre case in May 2007 The SDPOA also knew that its attorney client relationship with
Petersen terminated in March 2008 when he left the JDTP law firm
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Thus as of March 2008 the SDPOA had information sufficient to put a reasonable
person on inquiry The possibility that the SDPOA may not have understood or that their
attorneys at JDTP may not have told them of all of the significance of Petersens departure from
the JDTP law firm (eg the commencement of the statute as to any claims against Petersen) does
not alter the fact that the SDPOA discovered (or should have discovered) the facts which gave
rise to their legal malpractice claims against Petersen no later than March 3 2008
D Plaintiffs Suffered Actual Injury More Than One Year Before Filing Their
Complaint And The Statute of Limitations Has Not Been Tolled
Under Code of Civil Procedure section 3406 an action must be commenced one year
from discovery unless tolled because among other things the attorney continues to represent the
plaintiff regarding the specific subject matter in which the alleged act or omission occurred
(Code Civ Proc sect 3406) In this case there is no dispute that Petersens representation of the
SDPOA terminated in March 2008 when he left the JDTP law firm and ceased his representation
of the SDPOA As such there is no tolling ofthe statute in this situation for continuous
representation The present situation is somewhat analogous to Beal Bank SSB v Arter amp
Hadden LLP (2007) 42 Ca14th 503 (Beal Bank)
Beal Bank acquired loans that contained default provisions and retained the AampH law
firm to handle the collection efforts The attorney handling the matter left the AampH law firm and
the attorneys new firm took over Beal Banks representation When the collections efforts were
unsuccessful Beal Bank sued the AampH law firm and the new law firm The AampH law firm
demurred to the malpractice complaint on the theory that when the lawyer left and took the client
with him there was no need to continue to toll the statute of limitations against the AampH law
firm due to continued representation The Supreme Court agreed and held that once the case
leaves the firm the representation of the prior firm ceases and the statute of limitations clock
begins to tick against the prior firm (Beal Bank 42 Ca14th at pp 512-514)
The Supreme Court recognized that this situation may require malpractice plaintiffs to
move swiftly and perhaps act in filing a lawsuit before the underlying action was resolved but
the Supreme Court did not let this concern affect its reasoning regarding when continuous
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representation tolling ceases Here the clock for the SDPOAs malpractice claims against
Petersen commenced to tick in March 2008 when he left the JDTP law firm The SDPOA did
not file its action against Petersen within one year of March 2008 and therefore its legal
malpractice claim against him is time barred
The SDPOA may argue that because it appealed from the District Court and Superior
Courts orders in the underlying Aguirre and ~McGuigan litigation matters the statute of
limitations did not commence to run until the decisions on those appeals were rendered This
argument lacks merit and was rejected by the Jordache court when it determined that a causal
nexus between the injury and the malpractice does not need to be confirmed by settlement or
adjudication (Jordache 18 Cal4th at p 744) The Supreme Court reasoned that an existing
injury is not contingent or speculative simply because future events may effect its permanency or
the amount of monetary damages eventually incurred (fd at p 754)
Thus even if the SDPOA did not know whether future events (ie their appeals) may
effect the permanency of their injury (eg ruling that retiree benefits were not vested-
Complaint at 20) they still had suffered actual injury when the District Court and Superior Court
ruled against them and any tolling of the statute of limitations ended when Petersen departed the
JDTP law firm and his attorney-client relationship with the SDPOA terminated The fact that
appeals were still pending when he departed the JDTP law firm is of no consequence because in
determining actual injury the inquiry necessarily is more qualitative than quantitative because
the fact of damage rather than the amount is the critical factor (fd at p 752) The limitations
period is not tolled even ifthe injury is in some way remediable and appreciable actual injury
does not depend on the plaintiffs ability to attribute a quantifiable sum of money to
consequential damages (Jordache 18 Ca14th at p 750)
Here the underlying court records show Petersen no longer represented the SDPOA after
March 2008 The SDPOAs complaint offers no facts that would toll Section 3406 after the one
year limitations period commenced in March 2008 Because the SDPOA did not file this action
until March 29 2010 its claims against Petersen are time barred and this demurrer should be
sustained without leave to amend as to Petersen
-14shy--------- ---shy
Defendant Petersens Demurrer To Complaint
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V
PETERSENS DEMURRER SHOULD ALSO BE SUSTAINED BECAUSE THE SDPOA
HAS NOT PLEADED AND CANNOT PLEAD FACTS IN SUPPORT OF THE
CAUSATION AND DAMAGES ELEMENTS OF A CAUSES OF ACTION FOR LEGAL
MALPRACTICE
A To Prevail On A Claim For Legal Malpractice the Plaintiff Must Plead and
Prove the Defendant Caused the Plaintiffs Harm
The elements of a cause of action for professional negligence are (l) the duty ofthe
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 See ShopofJ amp Cavallo LLP v Hyon (2008) 167 CalApp4th 1489
1509 A claim for breach of contract also requires the plaintiff to prove that the defendants
breach caused the plaintiff to suffer damages See St Paul Fire amp Marin Ins Co v American
Dynasty Surplus Lines Ins Co (2002) 101 CaJApp4th 1038 1060 (An essential element of a
claim for breach of contract are damages resulting from the breach Causation ofdamages in
contract cases requires that the damages be proximately caused by the defendants breach)
The same causation test applies to both professional negligence and breach of contract claims
See Vasiion Therapeutics Inc v Foley amp Lardner LLP (SDCai 2008) 2008 WL 5147201 3 5
It is well settled that if the attorneys negligent conduct does not cause damage it
generates no cause of the action See ShopojJ 167 CaJApp4th at 1509 To show damages
proximately caused by the breach the pJaintiffmust demonstrate that but for the attorneys
malpractice it is more likely than not the plaintiff would have obtained a more favorable result
(d) See also Viner 30 Ca14th at 1240-43 Unless a party suffers damage as a consequence of
his attorneys negligence he cannot establish a cause of action for malpractice Breach of duty
causing only speculative harm is insufficient to create such a cause of action [D]amages may
5 SDPOA labels its claim as one for attorney malpractice and thus it is not clear if it intends to pursue a negligence theory a breach of contract theory or both See Complaint p 6 Regardless of whether the SDPOA pursues a tort or contract claim the same causation standard applies
-15shy----~---- ~----~~-~--~~~---------~------
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OC462991 v J
not be based upon sheer speculation or surmise and the mere possibility or even probability that
damage will result from wrongful conduct does not render it actionable Thompson v Halvonik
(1995) 36 CalAppAth 657 661-62
As the California Supreme Court made clear in the seminal Viner case the crucial
causation inquiry is what would have happened if the defendant attorney had not been negligent
This is so because the very idea of causation necessarily involves comparing historical events to
a hypothetical alternative Viner 30 CaL4th at 1242 (emphasis in original) Although the label
of the test may differ from case to case the rule underlying the test is always the same to
prevail on a malpractice claim the plaintiff must demonstrate that the attorneys negligence
caused the plaintiffs harm See Viner at 1240 n 4 (noting that the causation inquiry is also
sometimes described as the case within the case or the trial within the trial)
B Causation in a Legal Malpractice Case is Appropriately Treated as an Issue
of Law Rather Than Fact When the Underlying Litigation Was Decided
Based on a Question of Law
The element of causation in a legal malpractice case is treated as an issue of law which
the underlying litigation was decided on a question of law As one California court has
explained no jury can reach its own judgment on the proper outcome of an earlier case that
hinged on an issue of law Piscitelli v Friedenberg (2001) 87 CalAppAh 953 974 quoting
with approval from Chocktoot v Smith (Ore 1977) 571 P2d 1255 1258 see also id at 971
(explaining that [i]n legal malpractice cases whether a court or jury decides the underlying
case-within-a-case [turns on] whether the issues are predominantly questions of fact or law)
C The SDPOA Cannot Establish That Had Defendants Made a Different
Argument the Plaintiff Would Have Obtained a More Favorable Outcome
The SDPOAs causation allegation against Petersen is not merely tenuous it is nonshy
existent First the SDPOA alleges that it was adversely affected before the lawsuit was filed and
Defendants were retained when the City implemented its last bet final offer at the bargaining
table which had the effect of reducing retirement health benefit As a matter of law Petersen is
not the cause of the Citys bargaining position Moreover the underlying litigation on which the
Defendant Petersens Demurrer To Complaint
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SDPOAs legal malpractice claims are based were part of the SDPOAs response to the Citys
reduction of the health benefits
Second Plaintiff argues that because the Defendants did not put on evidence of some
unidentified and undisputed facts or make unidentifled arguments or cite unidentified precedent
the trial courts in those matters wrongly decided issues concerning whether the SDPOAs
members retirement health benefits were vested
Whether retirement health benefits were vested under the federal law at issue in the
underlying litigation was a contested issue of law the opposing parties in the underlying action
were represented by very able counsel (the law firms of Latham amp Watkins and Seltzer Caplan
McMahon Vitek) and the legal issues were before and decided by judges after extensive
litigation briefing and argument After considering the law those judges unanimously ruled that
as a matter of law the benefits were not vested The SDPOA cannot possibly satisfy its burden
of proving by a preponderance of the evidence that this legal result was the fault of the
defendants ie that had the defendants only done something different it is more likely than not
that the questions of federal law in the underlying litigation would have been resolved
differently See Shopof[ 167 CalApp4th at 1509 Viner 30 Ca14th at 1240-43 Stated
differently whether the SDPOAs complaint is pure speculation - which it is - is a question of
law for this Court in this demurrer
In addition the same fatal flaw arises because the SDPOA through their present attorney
dismissed its state law claims The SDPOAs voluntary dismissal of its state law claims
precludes it from making the current legal malpractice claim By dismissing those claims the
SDPOA made it impossible to demonstrate but for causation in this case If the SDPOA
suffered any harm it has been on account of its own voluntary actions that have nothing to do
with Petersen and the claims alleged against him here
Lastly it is frivolous for Plaintiff to contend that the Defendants should bear
responsibility for the Citys decision to amend its Municipal Code and impose an $8800 cap on
annual retirement health benefits These Defendants have no control over the City and are not a
-17shyDefendant Petersens Demurrer To Complaint
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1 cause of the Citys own financial predicament and did not cause the City to decide to reduce the
2 SDPOAs members benefits before the underlying lawsuits had even been filed
3 VI
4 CONCLUSION
As discussed above there are at least two reasons why this demurrer should be sustained
6 without leave to amend First the SDPOAs complaint and court records from the underlying
7 litigation firmly establish that the SDPOAs claim against defendant Petersen is barred by the
8 one year statute of limitations applicable to legal malpractice actions Second the SDPOAs
9 allegations also firmly establish that Petersen did not cause the SDPOA any damage as a matter
oflaw
11 For these reasons defendant Petersens demurrer to Plaintiffs complaint should be
12 sustained Moreover because no amendment will change this result this demurrer should be
13 sustained without leave to amend
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DATED May 142010 SEDGWICK DETERT MORAN amp ARNOLD LLP
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By1~~tra18 Gregory H Halliday
Frederick B Hayes 19 Attorneys for Defendant
GREGORY GLENN PETERSEN
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OC46299 I v I 8shyDefendant Petersens Demurrer To Complaint
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PROOF OF SERVICE
San Diego Police Officers Association v Jackson Deivfarco Tidus amp Peckenpaugh et al San Diego Superior Court Case No 37-2010-00088794-CU-PN-CTL
I am a resident of the State of California over the age of eighteen years and not a party to the within action My business address is Sedgwick Detert Moran amp Arnold LLP 3 Park Plaza 17th Floor Irvine California 92614middot8540 On May 142010 I served the within document(s)
DEFENDANT GREGORY GLENN PETERSENS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS COMPLAINT MEMORANDUM OF POINTS AND
AUTHORITIES
o FACSIMILEmiddot by transmitting via facsimile the document(s) listed above to the fax number(s) set forth on the attached Telecommunications Cover Page(s) on this date before 500 pm
MAILmiddot by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid in the United States mail at Irvine California addressed as set forth below
PERSONAL SERVICE - by personally delivering the document(s) listed above to the persltm(s) at the addressees) set forth below
o OVERNIGHT COURIER - by placing the document(s) listed above in a sealed envelope with shipping prepaid and depositing in a collection box for next day delivery to the person(s) at the addressees) set forth below via OverNite Express
SEE ATTACHED LIST
I am readily familiar with the finns practice of collection and processing correspondence for mailing Under that practice it would be deposited with the US Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business I am aware that on motion of the party served service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit
I declare under penalty of perjury under the laws of the State of California that the above is true and correct Executed on May 142010 at Irvine California
OCI463303v I
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San Diego Police Officers Association v Jackson Ddvfarco Tidus amp Peckenpaugh et ai SDSC Case No 37-2010-00088794-CU-PN-CTL
2 ProofofService shy Page 2
3
4 I Michael A Conger Esq AhUUltys for Plaintiff Law Office of Michael A Conger San Diego Police Officers Association 16236 San Dieguito Road Suite 4-14 PO Box 9374 (858) 759-0200 - telephone
6 Rancho Santa Fe CA 92067 (858) 759-1906 facsimile congermike(aJaoLcom
7 Gregory A Long Esq Attorneys for Defendants
8 Sheppard Mullin Richter amp Hampton LLP Jackson DeMarco Tidus amp Peckenpaugh 333 S Hope Street 48 th Floor
9 Los Angeles CA 90071 (213) 617-5443 phone (213) 620-1398 - facsimile
Iglongsheppardmullincom
11 Matthew W Holder Esq
12 Sheppard Mullin Richter amp HamptonLLP 12275 EI Camino Real Suite 200
13 San Diego CA 92130-2006
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OC463303v I
Attorneys for Defendants Jackson DeMarco Tidus amp Peckenpaugh
(858) 720-8900 - phone (858) 509-3691 facsimile mholdersheppardmullincom
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0CI462991vl
alleged wrongful acts or omissions arising out of the rendition of professional services
(Crowley v Katleman (1994) 8 Ca14th 666681-682) Section 3406 states
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 ofthe wrongful act or omission whichever occurs first (Code Civ Proc sect 3406(a))
Where an attorney has been accused of wrongful conduct the courts recognize that
regardless of the labels attached to the pleadings allegations the gravamen of the complaint is
legal malpractice (Kracht v Perrin Gartland amp Doyle (1990) 219 CalApp3d 1019 1022-1023
(Kracht) [complaint for breach of statutory duty constructive fraud and ordinary negligence
treated as malpractice claim for purposes of upholding order sustaining demurrer without leave
to amend] Jackson v Rogers amp Wells (1989) 210 CaLApp3d 336346349 [fraud and breach of
contract theories where alleged misfeasance Were acts requiring professional judgment calls
treated as malpractice claims for assignability purposes]) California case law treats all actions
arising out of the wrongful acts or omissions of attorneys as falling under the umbrella of legal
malpractice (Pompilio v Kosmo Cho amp Brown (1995) 39 CalAppAth 1324 1329 [plaintiffs
breach of fiduciary duty cause of action for attorneys errors and omissions sounds in legal
malpractice] see also Levin v Graham amp James (1995) 37 CalAppAth 798 Thompson v
Halvonik (1995) 36 CalAppAth 657664 Jacoby v Schenkel (1995) 36 CalAppAth 1701
Radovich v Locke-Paddon (1995) 35 CalAppAth 946 966 Stoll v Superior Court (1992) 9
CalAppAth 1362 1368)
Put simply when the claim concerns an alleged injury arising by reason of an attorneys
professional negligence the claim is one for legal malpractice subject to the statute of limitations
set forth in Section 3406 (Kracht 219 CaLApp3d at pp 1022-1023) Here the thrust of the
SDPOAs claim is that the Defendants including Petersen negligently handled the underlying
litigation (Complaint ~20) The complaints allegations plainly establish that the SDPOA is
suing Defendants for alleged errors and omissions arising from the provision oflegal services
Defendant Petersens Demurrer To Complaint
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OC46299 IvI
with respect to underlying litigation Thus the applicable statute of limitations is Section 3406
(Kracht 219 CalApp3d at pp 1022-1023)
B The SDPOA Suffered Actual Injury When The Underlying Trial Courts
Entered Judgment Against It In The Underlying Litigation Matters
The California Supreme Court has made it clear that [a]ctual injury occurs when the
client suffers any loss or injury legally cognizable as damages in a legal malpractice action based
on the asserted errors or omissions (Jordache Enterprises Inc v Brobeck Phleger and
Harrison (1998) 18 Cal4th 739 743 (Jordache)) The Jordache court determined that the loss
or diminution of a right or remedy constitutes injury or damage Neither uncertainty of amount
nor difficulty of proof renders that injury speculative or inchoate (fd at p 744) As explained
by the Supreme Court in determining actual injury the inquiry necessarily is more qualitative
than quantitative because the fact of damage rather than the amount is the critical factor (Id
at p 752)
In Jordache the plaintiff alleged that the defendant committed malpractice by failing to
advise the plaintiff to tender a complaint filed against it to its insurance carrier (fd at p 746)
As a result of the defendants omission significant time passed before the plaintiff tendered the
complaint to the insurer (Id at p 745) The insurance carrier argued that the plaintiffs late
tender relieved its obligation to provide benefits (Ibid) The plaintiff initiated litigation against
the insurer regarding the coverage issue and the viability of the insurers late tender defense
(Ibid) The plaintiff did not file its professional malpractice claim against the defendant until
after resolution of the coverage litigation (fd at p 746)
In evaluating when the actual injury occurred under Section 3406 the California
Supreme Court concluded that in addition to incurring legal fees to prosecute the coverage
dispute the defendants alleged omissions also gave the insurers an objectively viable defense
which consequently reduced those [insurance] claims settlement value (Id at p 743)
Because the insurers objection rendered the plaintiffs claims immediately less valuable than
they were prior to the assertion of such defense and because the defense arose as a result of the
plaintiffs counsels omission the plaintiff was actually injured within the meaning of Section
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OC46299 1 vI
3406 at the time the insurers defense was asserted (ld at pp 743-744) It does not matter
whether a plaintiff is able to quantify the amount by which its claims were devalued at the time
such a defense accrued and was asserted because actual injury may well precede quantifiable
financial costs (Adams v Paul (1995) 11 CaL4th 583 591 fn 5)
Thus under Jordache the test for actual injury under section 3406 therefore is
whether the plaintiff has sustained any damages compensable in an action against an attorney
for a wrongful act or omission arising in the performance of professional services (Jordache
18 CaL4th at p 751)
With respect to the present case the SDPOA suffered actual injury in the underlying
litigation matters when the trial courts entered judgment against the SDPOA Thus it suffered
actual injury in the McGuigan matter in December 2006 and it suffered actual injury in the
Aguirre matter in May 2007
c The SDPOA Discovered The Alleged Injuries In December 2006 and May
2007
To constitute discovery as that term is used in Section 3406 a plaintiff need only be
apprised of the fact that someone has done a wrong - plaintiff need not have a legal theory or
knowledge that he has a cause of action against an attorney at that point (McGee v Weinberg
(1979) 97 CaLApp3d 798 (lvfcGee) Worton v Worton (1991) 234 CaLApp3d 1368)
Discovery for purposes of triggering the commencement of the limitations period under Section
3406 occurs when the client discovered or should have discovered the facts giving rise to a
cause of action for legal malpractice As noted by the McGee court The test is whether the
plaintiff has information of circumstances sufficient to put a reasonable person on inquiry or has
the opportunity to obtain knowledge from sources open to his or her investigation (McGee 97
CaLApp3d at p 798)
Here the SDPOA knew it had lost the McGuigan case in December 2006 and the
Aguirre case in May 2007 The SDPOA also knew that its attorney client relationship with
Petersen terminated in March 2008 when he left the JDTP law firm
Defendant Petersens Demurrer To Complaint
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Thus as of March 2008 the SDPOA had information sufficient to put a reasonable
person on inquiry The possibility that the SDPOA may not have understood or that their
attorneys at JDTP may not have told them of all of the significance of Petersens departure from
the JDTP law firm (eg the commencement of the statute as to any claims against Petersen) does
not alter the fact that the SDPOA discovered (or should have discovered) the facts which gave
rise to their legal malpractice claims against Petersen no later than March 3 2008
D Plaintiffs Suffered Actual Injury More Than One Year Before Filing Their
Complaint And The Statute of Limitations Has Not Been Tolled
Under Code of Civil Procedure section 3406 an action must be commenced one year
from discovery unless tolled because among other things the attorney continues to represent the
plaintiff regarding the specific subject matter in which the alleged act or omission occurred
(Code Civ Proc sect 3406) In this case there is no dispute that Petersens representation of the
SDPOA terminated in March 2008 when he left the JDTP law firm and ceased his representation
of the SDPOA As such there is no tolling ofthe statute in this situation for continuous
representation The present situation is somewhat analogous to Beal Bank SSB v Arter amp
Hadden LLP (2007) 42 Ca14th 503 (Beal Bank)
Beal Bank acquired loans that contained default provisions and retained the AampH law
firm to handle the collection efforts The attorney handling the matter left the AampH law firm and
the attorneys new firm took over Beal Banks representation When the collections efforts were
unsuccessful Beal Bank sued the AampH law firm and the new law firm The AampH law firm
demurred to the malpractice complaint on the theory that when the lawyer left and took the client
with him there was no need to continue to toll the statute of limitations against the AampH law
firm due to continued representation The Supreme Court agreed and held that once the case
leaves the firm the representation of the prior firm ceases and the statute of limitations clock
begins to tick against the prior firm (Beal Bank 42 Ca14th at pp 512-514)
The Supreme Court recognized that this situation may require malpractice plaintiffs to
move swiftly and perhaps act in filing a lawsuit before the underlying action was resolved but
the Supreme Court did not let this concern affect its reasoning regarding when continuous
Defendant Petersens Demurrer To Complaint
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representation tolling ceases Here the clock for the SDPOAs malpractice claims against
Petersen commenced to tick in March 2008 when he left the JDTP law firm The SDPOA did
not file its action against Petersen within one year of March 2008 and therefore its legal
malpractice claim against him is time barred
The SDPOA may argue that because it appealed from the District Court and Superior
Courts orders in the underlying Aguirre and ~McGuigan litigation matters the statute of
limitations did not commence to run until the decisions on those appeals were rendered This
argument lacks merit and was rejected by the Jordache court when it determined that a causal
nexus between the injury and the malpractice does not need to be confirmed by settlement or
adjudication (Jordache 18 Cal4th at p 744) The Supreme Court reasoned that an existing
injury is not contingent or speculative simply because future events may effect its permanency or
the amount of monetary damages eventually incurred (fd at p 754)
Thus even if the SDPOA did not know whether future events (ie their appeals) may
effect the permanency of their injury (eg ruling that retiree benefits were not vested-
Complaint at 20) they still had suffered actual injury when the District Court and Superior Court
ruled against them and any tolling of the statute of limitations ended when Petersen departed the
JDTP law firm and his attorney-client relationship with the SDPOA terminated The fact that
appeals were still pending when he departed the JDTP law firm is of no consequence because in
determining actual injury the inquiry necessarily is more qualitative than quantitative because
the fact of damage rather than the amount is the critical factor (fd at p 752) The limitations
period is not tolled even ifthe injury is in some way remediable and appreciable actual injury
does not depend on the plaintiffs ability to attribute a quantifiable sum of money to
consequential damages (Jordache 18 Ca14th at p 750)
Here the underlying court records show Petersen no longer represented the SDPOA after
March 2008 The SDPOAs complaint offers no facts that would toll Section 3406 after the one
year limitations period commenced in March 2008 Because the SDPOA did not file this action
until March 29 2010 its claims against Petersen are time barred and this demurrer should be
sustained without leave to amend as to Petersen
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Defendant Petersens Demurrer To Complaint
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OC46299lvl
V
PETERSENS DEMURRER SHOULD ALSO BE SUSTAINED BECAUSE THE SDPOA
HAS NOT PLEADED AND CANNOT PLEAD FACTS IN SUPPORT OF THE
CAUSATION AND DAMAGES ELEMENTS OF A CAUSES OF ACTION FOR LEGAL
MALPRACTICE
A To Prevail On A Claim For Legal Malpractice the Plaintiff Must Plead and
Prove the Defendant Caused the Plaintiffs Harm
The elements of a cause of action for professional negligence are (l) the duty ofthe
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 See ShopofJ amp Cavallo LLP v Hyon (2008) 167 CalApp4th 1489
1509 A claim for breach of contract also requires the plaintiff to prove that the defendants
breach caused the plaintiff to suffer damages See St Paul Fire amp Marin Ins Co v American
Dynasty Surplus Lines Ins Co (2002) 101 CaJApp4th 1038 1060 (An essential element of a
claim for breach of contract are damages resulting from the breach Causation ofdamages in
contract cases requires that the damages be proximately caused by the defendants breach)
The same causation test applies to both professional negligence and breach of contract claims
See Vasiion Therapeutics Inc v Foley amp Lardner LLP (SDCai 2008) 2008 WL 5147201 3 5
It is well settled that if the attorneys negligent conduct does not cause damage it
generates no cause of the action See ShopojJ 167 CaJApp4th at 1509 To show damages
proximately caused by the breach the pJaintiffmust demonstrate that but for the attorneys
malpractice it is more likely than not the plaintiff would have obtained a more favorable result
(d) See also Viner 30 Ca14th at 1240-43 Unless a party suffers damage as a consequence of
his attorneys negligence he cannot establish a cause of action for malpractice Breach of duty
causing only speculative harm is insufficient to create such a cause of action [D]amages may
5 SDPOA labels its claim as one for attorney malpractice and thus it is not clear if it intends to pursue a negligence theory a breach of contract theory or both See Complaint p 6 Regardless of whether the SDPOA pursues a tort or contract claim the same causation standard applies
-15shy----~---- ~----~~-~--~~~---------~------
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OC462991 v J
not be based upon sheer speculation or surmise and the mere possibility or even probability that
damage will result from wrongful conduct does not render it actionable Thompson v Halvonik
(1995) 36 CalAppAth 657 661-62
As the California Supreme Court made clear in the seminal Viner case the crucial
causation inquiry is what would have happened if the defendant attorney had not been negligent
This is so because the very idea of causation necessarily involves comparing historical events to
a hypothetical alternative Viner 30 CaL4th at 1242 (emphasis in original) Although the label
of the test may differ from case to case the rule underlying the test is always the same to
prevail on a malpractice claim the plaintiff must demonstrate that the attorneys negligence
caused the plaintiffs harm See Viner at 1240 n 4 (noting that the causation inquiry is also
sometimes described as the case within the case or the trial within the trial)
B Causation in a Legal Malpractice Case is Appropriately Treated as an Issue
of Law Rather Than Fact When the Underlying Litigation Was Decided
Based on a Question of Law
The element of causation in a legal malpractice case is treated as an issue of law which
the underlying litigation was decided on a question of law As one California court has
explained no jury can reach its own judgment on the proper outcome of an earlier case that
hinged on an issue of law Piscitelli v Friedenberg (2001) 87 CalAppAh 953 974 quoting
with approval from Chocktoot v Smith (Ore 1977) 571 P2d 1255 1258 see also id at 971
(explaining that [i]n legal malpractice cases whether a court or jury decides the underlying
case-within-a-case [turns on] whether the issues are predominantly questions of fact or law)
C The SDPOA Cannot Establish That Had Defendants Made a Different
Argument the Plaintiff Would Have Obtained a More Favorable Outcome
The SDPOAs causation allegation against Petersen is not merely tenuous it is nonshy
existent First the SDPOA alleges that it was adversely affected before the lawsuit was filed and
Defendants were retained when the City implemented its last bet final offer at the bargaining
table which had the effect of reducing retirement health benefit As a matter of law Petersen is
not the cause of the Citys bargaining position Moreover the underlying litigation on which the
Defendant Petersens Demurrer To Complaint
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OCI46299I v I
SDPOAs legal malpractice claims are based were part of the SDPOAs response to the Citys
reduction of the health benefits
Second Plaintiff argues that because the Defendants did not put on evidence of some
unidentified and undisputed facts or make unidentifled arguments or cite unidentified precedent
the trial courts in those matters wrongly decided issues concerning whether the SDPOAs
members retirement health benefits were vested
Whether retirement health benefits were vested under the federal law at issue in the
underlying litigation was a contested issue of law the opposing parties in the underlying action
were represented by very able counsel (the law firms of Latham amp Watkins and Seltzer Caplan
McMahon Vitek) and the legal issues were before and decided by judges after extensive
litigation briefing and argument After considering the law those judges unanimously ruled that
as a matter of law the benefits were not vested The SDPOA cannot possibly satisfy its burden
of proving by a preponderance of the evidence that this legal result was the fault of the
defendants ie that had the defendants only done something different it is more likely than not
that the questions of federal law in the underlying litigation would have been resolved
differently See Shopof[ 167 CalApp4th at 1509 Viner 30 Ca14th at 1240-43 Stated
differently whether the SDPOAs complaint is pure speculation - which it is - is a question of
law for this Court in this demurrer
In addition the same fatal flaw arises because the SDPOA through their present attorney
dismissed its state law claims The SDPOAs voluntary dismissal of its state law claims
precludes it from making the current legal malpractice claim By dismissing those claims the
SDPOA made it impossible to demonstrate but for causation in this case If the SDPOA
suffered any harm it has been on account of its own voluntary actions that have nothing to do
with Petersen and the claims alleged against him here
Lastly it is frivolous for Plaintiff to contend that the Defendants should bear
responsibility for the Citys decision to amend its Municipal Code and impose an $8800 cap on
annual retirement health benefits These Defendants have no control over the City and are not a
-17shyDefendant Petersens Demurrer To Complaint
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1 cause of the Citys own financial predicament and did not cause the City to decide to reduce the
2 SDPOAs members benefits before the underlying lawsuits had even been filed
3 VI
4 CONCLUSION
As discussed above there are at least two reasons why this demurrer should be sustained
6 without leave to amend First the SDPOAs complaint and court records from the underlying
7 litigation firmly establish that the SDPOAs claim against defendant Petersen is barred by the
8 one year statute of limitations applicable to legal malpractice actions Second the SDPOAs
9 allegations also firmly establish that Petersen did not cause the SDPOA any damage as a matter
oflaw
11 For these reasons defendant Petersens demurrer to Plaintiffs complaint should be
12 sustained Moreover because no amendment will change this result this demurrer should be
13 sustained without leave to amend
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DATED May 142010 SEDGWICK DETERT MORAN amp ARNOLD LLP
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By1~~tra18 Gregory H Halliday
Frederick B Hayes 19 Attorneys for Defendant
GREGORY GLENN PETERSEN
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OC46299 I v I 8shyDefendant Petersens Demurrer To Complaint
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PROOF OF SERVICE
San Diego Police Officers Association v Jackson Deivfarco Tidus amp Peckenpaugh et al San Diego Superior Court Case No 37-2010-00088794-CU-PN-CTL
I am a resident of the State of California over the age of eighteen years and not a party to the within action My business address is Sedgwick Detert Moran amp Arnold LLP 3 Park Plaza 17th Floor Irvine California 92614middot8540 On May 142010 I served the within document(s)
DEFENDANT GREGORY GLENN PETERSENS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS COMPLAINT MEMORANDUM OF POINTS AND
AUTHORITIES
o FACSIMILEmiddot by transmitting via facsimile the document(s) listed above to the fax number(s) set forth on the attached Telecommunications Cover Page(s) on this date before 500 pm
MAILmiddot by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid in the United States mail at Irvine California addressed as set forth below
PERSONAL SERVICE - by personally delivering the document(s) listed above to the persltm(s) at the addressees) set forth below
o OVERNIGHT COURIER - by placing the document(s) listed above in a sealed envelope with shipping prepaid and depositing in a collection box for next day delivery to the person(s) at the addressees) set forth below via OverNite Express
SEE ATTACHED LIST
I am readily familiar with the finns practice of collection and processing correspondence for mailing Under that practice it would be deposited with the US Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business I am aware that on motion of the party served service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit
I declare under penalty of perjury under the laws of the State of California that the above is true and correct Executed on May 142010 at Irvine California
OCI463303v I
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San Diego Police Officers Association v Jackson Ddvfarco Tidus amp Peckenpaugh et ai SDSC Case No 37-2010-00088794-CU-PN-CTL
2 ProofofService shy Page 2
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4 I Michael A Conger Esq AhUUltys for Plaintiff Law Office of Michael A Conger San Diego Police Officers Association 16236 San Dieguito Road Suite 4-14 PO Box 9374 (858) 759-0200 - telephone
6 Rancho Santa Fe CA 92067 (858) 759-1906 facsimile congermike(aJaoLcom
7 Gregory A Long Esq Attorneys for Defendants
8 Sheppard Mullin Richter amp Hampton LLP Jackson DeMarco Tidus amp Peckenpaugh 333 S Hope Street 48 th Floor
9 Los Angeles CA 90071 (213) 617-5443 phone (213) 620-1398 - facsimile
Iglongsheppardmullincom
11 Matthew W Holder Esq
12 Sheppard Mullin Richter amp HamptonLLP 12275 EI Camino Real Suite 200
13 San Diego CA 92130-2006
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OC463303v I
Attorneys for Defendants Jackson DeMarco Tidus amp Peckenpaugh
(858) 720-8900 - phone (858) 509-3691 facsimile mholdersheppardmullincom
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OC46299 IvI
with respect to underlying litigation Thus the applicable statute of limitations is Section 3406
(Kracht 219 CalApp3d at pp 1022-1023)
B The SDPOA Suffered Actual Injury When The Underlying Trial Courts
Entered Judgment Against It In The Underlying Litigation Matters
The California Supreme Court has made it clear that [a]ctual injury occurs when the
client suffers any loss or injury legally cognizable as damages in a legal malpractice action based
on the asserted errors or omissions (Jordache Enterprises Inc v Brobeck Phleger and
Harrison (1998) 18 Cal4th 739 743 (Jordache)) The Jordache court determined that the loss
or diminution of a right or remedy constitutes injury or damage Neither uncertainty of amount
nor difficulty of proof renders that injury speculative or inchoate (fd at p 744) As explained
by the Supreme Court in determining actual injury the inquiry necessarily is more qualitative
than quantitative because the fact of damage rather than the amount is the critical factor (Id
at p 752)
In Jordache the plaintiff alleged that the defendant committed malpractice by failing to
advise the plaintiff to tender a complaint filed against it to its insurance carrier (fd at p 746)
As a result of the defendants omission significant time passed before the plaintiff tendered the
complaint to the insurer (Id at p 745) The insurance carrier argued that the plaintiffs late
tender relieved its obligation to provide benefits (Ibid) The plaintiff initiated litigation against
the insurer regarding the coverage issue and the viability of the insurers late tender defense
(Ibid) The plaintiff did not file its professional malpractice claim against the defendant until
after resolution of the coverage litigation (fd at p 746)
In evaluating when the actual injury occurred under Section 3406 the California
Supreme Court concluded that in addition to incurring legal fees to prosecute the coverage
dispute the defendants alleged omissions also gave the insurers an objectively viable defense
which consequently reduced those [insurance] claims settlement value (Id at p 743)
Because the insurers objection rendered the plaintiffs claims immediately less valuable than
they were prior to the assertion of such defense and because the defense arose as a result of the
plaintiffs counsels omission the plaintiff was actually injured within the meaning of Section
Defendant Petersens Demurrer To Complaint
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OC46299 1 vI
3406 at the time the insurers defense was asserted (ld at pp 743-744) It does not matter
whether a plaintiff is able to quantify the amount by which its claims were devalued at the time
such a defense accrued and was asserted because actual injury may well precede quantifiable
financial costs (Adams v Paul (1995) 11 CaL4th 583 591 fn 5)
Thus under Jordache the test for actual injury under section 3406 therefore is
whether the plaintiff has sustained any damages compensable in an action against an attorney
for a wrongful act or omission arising in the performance of professional services (Jordache
18 CaL4th at p 751)
With respect to the present case the SDPOA suffered actual injury in the underlying
litigation matters when the trial courts entered judgment against the SDPOA Thus it suffered
actual injury in the McGuigan matter in December 2006 and it suffered actual injury in the
Aguirre matter in May 2007
c The SDPOA Discovered The Alleged Injuries In December 2006 and May
2007
To constitute discovery as that term is used in Section 3406 a plaintiff need only be
apprised of the fact that someone has done a wrong - plaintiff need not have a legal theory or
knowledge that he has a cause of action against an attorney at that point (McGee v Weinberg
(1979) 97 CaLApp3d 798 (lvfcGee) Worton v Worton (1991) 234 CaLApp3d 1368)
Discovery for purposes of triggering the commencement of the limitations period under Section
3406 occurs when the client discovered or should have discovered the facts giving rise to a
cause of action for legal malpractice As noted by the McGee court The test is whether the
plaintiff has information of circumstances sufficient to put a reasonable person on inquiry or has
the opportunity to obtain knowledge from sources open to his or her investigation (McGee 97
CaLApp3d at p 798)
Here the SDPOA knew it had lost the McGuigan case in December 2006 and the
Aguirre case in May 2007 The SDPOA also knew that its attorney client relationship with
Petersen terminated in March 2008 when he left the JDTP law firm
Defendant Petersens Demurrer To Complaint
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Thus as of March 2008 the SDPOA had information sufficient to put a reasonable
person on inquiry The possibility that the SDPOA may not have understood or that their
attorneys at JDTP may not have told them of all of the significance of Petersens departure from
the JDTP law firm (eg the commencement of the statute as to any claims against Petersen) does
not alter the fact that the SDPOA discovered (or should have discovered) the facts which gave
rise to their legal malpractice claims against Petersen no later than March 3 2008
D Plaintiffs Suffered Actual Injury More Than One Year Before Filing Their
Complaint And The Statute of Limitations Has Not Been Tolled
Under Code of Civil Procedure section 3406 an action must be commenced one year
from discovery unless tolled because among other things the attorney continues to represent the
plaintiff regarding the specific subject matter in which the alleged act or omission occurred
(Code Civ Proc sect 3406) In this case there is no dispute that Petersens representation of the
SDPOA terminated in March 2008 when he left the JDTP law firm and ceased his representation
of the SDPOA As such there is no tolling ofthe statute in this situation for continuous
representation The present situation is somewhat analogous to Beal Bank SSB v Arter amp
Hadden LLP (2007) 42 Ca14th 503 (Beal Bank)
Beal Bank acquired loans that contained default provisions and retained the AampH law
firm to handle the collection efforts The attorney handling the matter left the AampH law firm and
the attorneys new firm took over Beal Banks representation When the collections efforts were
unsuccessful Beal Bank sued the AampH law firm and the new law firm The AampH law firm
demurred to the malpractice complaint on the theory that when the lawyer left and took the client
with him there was no need to continue to toll the statute of limitations against the AampH law
firm due to continued representation The Supreme Court agreed and held that once the case
leaves the firm the representation of the prior firm ceases and the statute of limitations clock
begins to tick against the prior firm (Beal Bank 42 Ca14th at pp 512-514)
The Supreme Court recognized that this situation may require malpractice plaintiffs to
move swiftly and perhaps act in filing a lawsuit before the underlying action was resolved but
the Supreme Court did not let this concern affect its reasoning regarding when continuous
Defendant Petersens Demurrer To Complaint
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OC462991vl
representation tolling ceases Here the clock for the SDPOAs malpractice claims against
Petersen commenced to tick in March 2008 when he left the JDTP law firm The SDPOA did
not file its action against Petersen within one year of March 2008 and therefore its legal
malpractice claim against him is time barred
The SDPOA may argue that because it appealed from the District Court and Superior
Courts orders in the underlying Aguirre and ~McGuigan litigation matters the statute of
limitations did not commence to run until the decisions on those appeals were rendered This
argument lacks merit and was rejected by the Jordache court when it determined that a causal
nexus between the injury and the malpractice does not need to be confirmed by settlement or
adjudication (Jordache 18 Cal4th at p 744) The Supreme Court reasoned that an existing
injury is not contingent or speculative simply because future events may effect its permanency or
the amount of monetary damages eventually incurred (fd at p 754)
Thus even if the SDPOA did not know whether future events (ie their appeals) may
effect the permanency of their injury (eg ruling that retiree benefits were not vested-
Complaint at 20) they still had suffered actual injury when the District Court and Superior Court
ruled against them and any tolling of the statute of limitations ended when Petersen departed the
JDTP law firm and his attorney-client relationship with the SDPOA terminated The fact that
appeals were still pending when he departed the JDTP law firm is of no consequence because in
determining actual injury the inquiry necessarily is more qualitative than quantitative because
the fact of damage rather than the amount is the critical factor (fd at p 752) The limitations
period is not tolled even ifthe injury is in some way remediable and appreciable actual injury
does not depend on the plaintiffs ability to attribute a quantifiable sum of money to
consequential damages (Jordache 18 Ca14th at p 750)
Here the underlying court records show Petersen no longer represented the SDPOA after
March 2008 The SDPOAs complaint offers no facts that would toll Section 3406 after the one
year limitations period commenced in March 2008 Because the SDPOA did not file this action
until March 29 2010 its claims against Petersen are time barred and this demurrer should be
sustained without leave to amend as to Petersen
-14shy--------- ---shy
Defendant Petersens Demurrer To Complaint
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OC46299lvl
V
PETERSENS DEMURRER SHOULD ALSO BE SUSTAINED BECAUSE THE SDPOA
HAS NOT PLEADED AND CANNOT PLEAD FACTS IN SUPPORT OF THE
CAUSATION AND DAMAGES ELEMENTS OF A CAUSES OF ACTION FOR LEGAL
MALPRACTICE
A To Prevail On A Claim For Legal Malpractice the Plaintiff Must Plead and
Prove the Defendant Caused the Plaintiffs Harm
The elements of a cause of action for professional negligence are (l) the duty ofthe
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 See ShopofJ amp Cavallo LLP v Hyon (2008) 167 CalApp4th 1489
1509 A claim for breach of contract also requires the plaintiff to prove that the defendants
breach caused the plaintiff to suffer damages See St Paul Fire amp Marin Ins Co v American
Dynasty Surplus Lines Ins Co (2002) 101 CaJApp4th 1038 1060 (An essential element of a
claim for breach of contract are damages resulting from the breach Causation ofdamages in
contract cases requires that the damages be proximately caused by the defendants breach)
The same causation test applies to both professional negligence and breach of contract claims
See Vasiion Therapeutics Inc v Foley amp Lardner LLP (SDCai 2008) 2008 WL 5147201 3 5
It is well settled that if the attorneys negligent conduct does not cause damage it
generates no cause of the action See ShopojJ 167 CaJApp4th at 1509 To show damages
proximately caused by the breach the pJaintiffmust demonstrate that but for the attorneys
malpractice it is more likely than not the plaintiff would have obtained a more favorable result
(d) See also Viner 30 Ca14th at 1240-43 Unless a party suffers damage as a consequence of
his attorneys negligence he cannot establish a cause of action for malpractice Breach of duty
causing only speculative harm is insufficient to create such a cause of action [D]amages may
5 SDPOA labels its claim as one for attorney malpractice and thus it is not clear if it intends to pursue a negligence theory a breach of contract theory or both See Complaint p 6 Regardless of whether the SDPOA pursues a tort or contract claim the same causation standard applies
-15shy----~---- ~----~~-~--~~~---------~------
Defendant Petersens Demurrer To Complaint
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OC462991 v J
not be based upon sheer speculation or surmise and the mere possibility or even probability that
damage will result from wrongful conduct does not render it actionable Thompson v Halvonik
(1995) 36 CalAppAth 657 661-62
As the California Supreme Court made clear in the seminal Viner case the crucial
causation inquiry is what would have happened if the defendant attorney had not been negligent
This is so because the very idea of causation necessarily involves comparing historical events to
a hypothetical alternative Viner 30 CaL4th at 1242 (emphasis in original) Although the label
of the test may differ from case to case the rule underlying the test is always the same to
prevail on a malpractice claim the plaintiff must demonstrate that the attorneys negligence
caused the plaintiffs harm See Viner at 1240 n 4 (noting that the causation inquiry is also
sometimes described as the case within the case or the trial within the trial)
B Causation in a Legal Malpractice Case is Appropriately Treated as an Issue
of Law Rather Than Fact When the Underlying Litigation Was Decided
Based on a Question of Law
The element of causation in a legal malpractice case is treated as an issue of law which
the underlying litigation was decided on a question of law As one California court has
explained no jury can reach its own judgment on the proper outcome of an earlier case that
hinged on an issue of law Piscitelli v Friedenberg (2001) 87 CalAppAh 953 974 quoting
with approval from Chocktoot v Smith (Ore 1977) 571 P2d 1255 1258 see also id at 971
(explaining that [i]n legal malpractice cases whether a court or jury decides the underlying
case-within-a-case [turns on] whether the issues are predominantly questions of fact or law)
C The SDPOA Cannot Establish That Had Defendants Made a Different
Argument the Plaintiff Would Have Obtained a More Favorable Outcome
The SDPOAs causation allegation against Petersen is not merely tenuous it is nonshy
existent First the SDPOA alleges that it was adversely affected before the lawsuit was filed and
Defendants were retained when the City implemented its last bet final offer at the bargaining
table which had the effect of reducing retirement health benefit As a matter of law Petersen is
not the cause of the Citys bargaining position Moreover the underlying litigation on which the
Defendant Petersens Demurrer To Complaint
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OCI46299I v I
SDPOAs legal malpractice claims are based were part of the SDPOAs response to the Citys
reduction of the health benefits
Second Plaintiff argues that because the Defendants did not put on evidence of some
unidentified and undisputed facts or make unidentifled arguments or cite unidentified precedent
the trial courts in those matters wrongly decided issues concerning whether the SDPOAs
members retirement health benefits were vested
Whether retirement health benefits were vested under the federal law at issue in the
underlying litigation was a contested issue of law the opposing parties in the underlying action
were represented by very able counsel (the law firms of Latham amp Watkins and Seltzer Caplan
McMahon Vitek) and the legal issues were before and decided by judges after extensive
litigation briefing and argument After considering the law those judges unanimously ruled that
as a matter of law the benefits were not vested The SDPOA cannot possibly satisfy its burden
of proving by a preponderance of the evidence that this legal result was the fault of the
defendants ie that had the defendants only done something different it is more likely than not
that the questions of federal law in the underlying litigation would have been resolved
differently See Shopof[ 167 CalApp4th at 1509 Viner 30 Ca14th at 1240-43 Stated
differently whether the SDPOAs complaint is pure speculation - which it is - is a question of
law for this Court in this demurrer
In addition the same fatal flaw arises because the SDPOA through their present attorney
dismissed its state law claims The SDPOAs voluntary dismissal of its state law claims
precludes it from making the current legal malpractice claim By dismissing those claims the
SDPOA made it impossible to demonstrate but for causation in this case If the SDPOA
suffered any harm it has been on account of its own voluntary actions that have nothing to do
with Petersen and the claims alleged against him here
Lastly it is frivolous for Plaintiff to contend that the Defendants should bear
responsibility for the Citys decision to amend its Municipal Code and impose an $8800 cap on
annual retirement health benefits These Defendants have no control over the City and are not a
-17shyDefendant Petersens Demurrer To Complaint
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1 cause of the Citys own financial predicament and did not cause the City to decide to reduce the
2 SDPOAs members benefits before the underlying lawsuits had even been filed
3 VI
4 CONCLUSION
As discussed above there are at least two reasons why this demurrer should be sustained
6 without leave to amend First the SDPOAs complaint and court records from the underlying
7 litigation firmly establish that the SDPOAs claim against defendant Petersen is barred by the
8 one year statute of limitations applicable to legal malpractice actions Second the SDPOAs
9 allegations also firmly establish that Petersen did not cause the SDPOA any damage as a matter
oflaw
11 For these reasons defendant Petersens demurrer to Plaintiffs complaint should be
12 sustained Moreover because no amendment will change this result this demurrer should be
13 sustained without leave to amend
14
DATED May 142010 SEDGWICK DETERT MORAN amp ARNOLD LLP
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By1~~tra18 Gregory H Halliday
Frederick B Hayes 19 Attorneys for Defendant
GREGORY GLENN PETERSEN
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OC46299 I v I 8shyDefendant Petersens Demurrer To Complaint
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PROOF OF SERVICE
San Diego Police Officers Association v Jackson Deivfarco Tidus amp Peckenpaugh et al San Diego Superior Court Case No 37-2010-00088794-CU-PN-CTL
I am a resident of the State of California over the age of eighteen years and not a party to the within action My business address is Sedgwick Detert Moran amp Arnold LLP 3 Park Plaza 17th Floor Irvine California 92614middot8540 On May 142010 I served the within document(s)
DEFENDANT GREGORY GLENN PETERSENS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS COMPLAINT MEMORANDUM OF POINTS AND
AUTHORITIES
o FACSIMILEmiddot by transmitting via facsimile the document(s) listed above to the fax number(s) set forth on the attached Telecommunications Cover Page(s) on this date before 500 pm
MAILmiddot by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid in the United States mail at Irvine California addressed as set forth below
PERSONAL SERVICE - by personally delivering the document(s) listed above to the persltm(s) at the addressees) set forth below
o OVERNIGHT COURIER - by placing the document(s) listed above in a sealed envelope with shipping prepaid and depositing in a collection box for next day delivery to the person(s) at the addressees) set forth below via OverNite Express
SEE ATTACHED LIST
I am readily familiar with the finns practice of collection and processing correspondence for mailing Under that practice it would be deposited with the US Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business I am aware that on motion of the party served service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit
I declare under penalty of perjury under the laws of the State of California that the above is true and correct Executed on May 142010 at Irvine California
OCI463303v I
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San Diego Police Officers Association v Jackson Ddvfarco Tidus amp Peckenpaugh et ai SDSC Case No 37-2010-00088794-CU-PN-CTL
2 ProofofService shy Page 2
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4 I Michael A Conger Esq AhUUltys for Plaintiff Law Office of Michael A Conger San Diego Police Officers Association 16236 San Dieguito Road Suite 4-14 PO Box 9374 (858) 759-0200 - telephone
6 Rancho Santa Fe CA 92067 (858) 759-1906 facsimile congermike(aJaoLcom
7 Gregory A Long Esq Attorneys for Defendants
8 Sheppard Mullin Richter amp Hampton LLP Jackson DeMarco Tidus amp Peckenpaugh 333 S Hope Street 48 th Floor
9 Los Angeles CA 90071 (213) 617-5443 phone (213) 620-1398 - facsimile
Iglongsheppardmullincom
11 Matthew W Holder Esq
12 Sheppard Mullin Richter amp HamptonLLP 12275 EI Camino Real Suite 200
13 San Diego CA 92130-2006
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Attorneys for Defendants Jackson DeMarco Tidus amp Peckenpaugh
(858) 720-8900 - phone (858) 509-3691 facsimile mholdersheppardmullincom
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3406 at the time the insurers defense was asserted (ld at pp 743-744) It does not matter
whether a plaintiff is able to quantify the amount by which its claims were devalued at the time
such a defense accrued and was asserted because actual injury may well precede quantifiable
financial costs (Adams v Paul (1995) 11 CaL4th 583 591 fn 5)
Thus under Jordache the test for actual injury under section 3406 therefore is
whether the plaintiff has sustained any damages compensable in an action against an attorney
for a wrongful act or omission arising in the performance of professional services (Jordache
18 CaL4th at p 751)
With respect to the present case the SDPOA suffered actual injury in the underlying
litigation matters when the trial courts entered judgment against the SDPOA Thus it suffered
actual injury in the McGuigan matter in December 2006 and it suffered actual injury in the
Aguirre matter in May 2007
c The SDPOA Discovered The Alleged Injuries In December 2006 and May
2007
To constitute discovery as that term is used in Section 3406 a plaintiff need only be
apprised of the fact that someone has done a wrong - plaintiff need not have a legal theory or
knowledge that he has a cause of action against an attorney at that point (McGee v Weinberg
(1979) 97 CaLApp3d 798 (lvfcGee) Worton v Worton (1991) 234 CaLApp3d 1368)
Discovery for purposes of triggering the commencement of the limitations period under Section
3406 occurs when the client discovered or should have discovered the facts giving rise to a
cause of action for legal malpractice As noted by the McGee court The test is whether the
plaintiff has information of circumstances sufficient to put a reasonable person on inquiry or has
the opportunity to obtain knowledge from sources open to his or her investigation (McGee 97
CaLApp3d at p 798)
Here the SDPOA knew it had lost the McGuigan case in December 2006 and the
Aguirre case in May 2007 The SDPOA also knew that its attorney client relationship with
Petersen terminated in March 2008 when he left the JDTP law firm
Defendant Petersens Demurrer To Complaint
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Thus as of March 2008 the SDPOA had information sufficient to put a reasonable
person on inquiry The possibility that the SDPOA may not have understood or that their
attorneys at JDTP may not have told them of all of the significance of Petersens departure from
the JDTP law firm (eg the commencement of the statute as to any claims against Petersen) does
not alter the fact that the SDPOA discovered (or should have discovered) the facts which gave
rise to their legal malpractice claims against Petersen no later than March 3 2008
D Plaintiffs Suffered Actual Injury More Than One Year Before Filing Their
Complaint And The Statute of Limitations Has Not Been Tolled
Under Code of Civil Procedure section 3406 an action must be commenced one year
from discovery unless tolled because among other things the attorney continues to represent the
plaintiff regarding the specific subject matter in which the alleged act or omission occurred
(Code Civ Proc sect 3406) In this case there is no dispute that Petersens representation of the
SDPOA terminated in March 2008 when he left the JDTP law firm and ceased his representation
of the SDPOA As such there is no tolling ofthe statute in this situation for continuous
representation The present situation is somewhat analogous to Beal Bank SSB v Arter amp
Hadden LLP (2007) 42 Ca14th 503 (Beal Bank)
Beal Bank acquired loans that contained default provisions and retained the AampH law
firm to handle the collection efforts The attorney handling the matter left the AampH law firm and
the attorneys new firm took over Beal Banks representation When the collections efforts were
unsuccessful Beal Bank sued the AampH law firm and the new law firm The AampH law firm
demurred to the malpractice complaint on the theory that when the lawyer left and took the client
with him there was no need to continue to toll the statute of limitations against the AampH law
firm due to continued representation The Supreme Court agreed and held that once the case
leaves the firm the representation of the prior firm ceases and the statute of limitations clock
begins to tick against the prior firm (Beal Bank 42 Ca14th at pp 512-514)
The Supreme Court recognized that this situation may require malpractice plaintiffs to
move swiftly and perhaps act in filing a lawsuit before the underlying action was resolved but
the Supreme Court did not let this concern affect its reasoning regarding when continuous
Defendant Petersens Demurrer To Complaint
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representation tolling ceases Here the clock for the SDPOAs malpractice claims against
Petersen commenced to tick in March 2008 when he left the JDTP law firm The SDPOA did
not file its action against Petersen within one year of March 2008 and therefore its legal
malpractice claim against him is time barred
The SDPOA may argue that because it appealed from the District Court and Superior
Courts orders in the underlying Aguirre and ~McGuigan litigation matters the statute of
limitations did not commence to run until the decisions on those appeals were rendered This
argument lacks merit and was rejected by the Jordache court when it determined that a causal
nexus between the injury and the malpractice does not need to be confirmed by settlement or
adjudication (Jordache 18 Cal4th at p 744) The Supreme Court reasoned that an existing
injury is not contingent or speculative simply because future events may effect its permanency or
the amount of monetary damages eventually incurred (fd at p 754)
Thus even if the SDPOA did not know whether future events (ie their appeals) may
effect the permanency of their injury (eg ruling that retiree benefits were not vested-
Complaint at 20) they still had suffered actual injury when the District Court and Superior Court
ruled against them and any tolling of the statute of limitations ended when Petersen departed the
JDTP law firm and his attorney-client relationship with the SDPOA terminated The fact that
appeals were still pending when he departed the JDTP law firm is of no consequence because in
determining actual injury the inquiry necessarily is more qualitative than quantitative because
the fact of damage rather than the amount is the critical factor (fd at p 752) The limitations
period is not tolled even ifthe injury is in some way remediable and appreciable actual injury
does not depend on the plaintiffs ability to attribute a quantifiable sum of money to
consequential damages (Jordache 18 Ca14th at p 750)
Here the underlying court records show Petersen no longer represented the SDPOA after
March 2008 The SDPOAs complaint offers no facts that would toll Section 3406 after the one
year limitations period commenced in March 2008 Because the SDPOA did not file this action
until March 29 2010 its claims against Petersen are time barred and this demurrer should be
sustained without leave to amend as to Petersen
-14shy--------- ---shy
Defendant Petersens Demurrer To Complaint
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OC46299lvl
V
PETERSENS DEMURRER SHOULD ALSO BE SUSTAINED BECAUSE THE SDPOA
HAS NOT PLEADED AND CANNOT PLEAD FACTS IN SUPPORT OF THE
CAUSATION AND DAMAGES ELEMENTS OF A CAUSES OF ACTION FOR LEGAL
MALPRACTICE
A To Prevail On A Claim For Legal Malpractice the Plaintiff Must Plead and
Prove the Defendant Caused the Plaintiffs Harm
The elements of a cause of action for professional negligence are (l) the duty ofthe
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 See ShopofJ amp Cavallo LLP v Hyon (2008) 167 CalApp4th 1489
1509 A claim for breach of contract also requires the plaintiff to prove that the defendants
breach caused the plaintiff to suffer damages See St Paul Fire amp Marin Ins Co v American
Dynasty Surplus Lines Ins Co (2002) 101 CaJApp4th 1038 1060 (An essential element of a
claim for breach of contract are damages resulting from the breach Causation ofdamages in
contract cases requires that the damages be proximately caused by the defendants breach)
The same causation test applies to both professional negligence and breach of contract claims
See Vasiion Therapeutics Inc v Foley amp Lardner LLP (SDCai 2008) 2008 WL 5147201 3 5
It is well settled that if the attorneys negligent conduct does not cause damage it
generates no cause of the action See ShopojJ 167 CaJApp4th at 1509 To show damages
proximately caused by the breach the pJaintiffmust demonstrate that but for the attorneys
malpractice it is more likely than not the plaintiff would have obtained a more favorable result
(d) See also Viner 30 Ca14th at 1240-43 Unless a party suffers damage as a consequence of
his attorneys negligence he cannot establish a cause of action for malpractice Breach of duty
causing only speculative harm is insufficient to create such a cause of action [D]amages may
5 SDPOA labels its claim as one for attorney malpractice and thus it is not clear if it intends to pursue a negligence theory a breach of contract theory or both See Complaint p 6 Regardless of whether the SDPOA pursues a tort or contract claim the same causation standard applies
-15shy----~---- ~----~~-~--~~~---------~------
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OC462991 v J
not be based upon sheer speculation or surmise and the mere possibility or even probability that
damage will result from wrongful conduct does not render it actionable Thompson v Halvonik
(1995) 36 CalAppAth 657 661-62
As the California Supreme Court made clear in the seminal Viner case the crucial
causation inquiry is what would have happened if the defendant attorney had not been negligent
This is so because the very idea of causation necessarily involves comparing historical events to
a hypothetical alternative Viner 30 CaL4th at 1242 (emphasis in original) Although the label
of the test may differ from case to case the rule underlying the test is always the same to
prevail on a malpractice claim the plaintiff must demonstrate that the attorneys negligence
caused the plaintiffs harm See Viner at 1240 n 4 (noting that the causation inquiry is also
sometimes described as the case within the case or the trial within the trial)
B Causation in a Legal Malpractice Case is Appropriately Treated as an Issue
of Law Rather Than Fact When the Underlying Litigation Was Decided
Based on a Question of Law
The element of causation in a legal malpractice case is treated as an issue of law which
the underlying litigation was decided on a question of law As one California court has
explained no jury can reach its own judgment on the proper outcome of an earlier case that
hinged on an issue of law Piscitelli v Friedenberg (2001) 87 CalAppAh 953 974 quoting
with approval from Chocktoot v Smith (Ore 1977) 571 P2d 1255 1258 see also id at 971
(explaining that [i]n legal malpractice cases whether a court or jury decides the underlying
case-within-a-case [turns on] whether the issues are predominantly questions of fact or law)
C The SDPOA Cannot Establish That Had Defendants Made a Different
Argument the Plaintiff Would Have Obtained a More Favorable Outcome
The SDPOAs causation allegation against Petersen is not merely tenuous it is nonshy
existent First the SDPOA alleges that it was adversely affected before the lawsuit was filed and
Defendants were retained when the City implemented its last bet final offer at the bargaining
table which had the effect of reducing retirement health benefit As a matter of law Petersen is
not the cause of the Citys bargaining position Moreover the underlying litigation on which the
Defendant Petersens Demurrer To Complaint
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OCI46299I v I
SDPOAs legal malpractice claims are based were part of the SDPOAs response to the Citys
reduction of the health benefits
Second Plaintiff argues that because the Defendants did not put on evidence of some
unidentified and undisputed facts or make unidentifled arguments or cite unidentified precedent
the trial courts in those matters wrongly decided issues concerning whether the SDPOAs
members retirement health benefits were vested
Whether retirement health benefits were vested under the federal law at issue in the
underlying litigation was a contested issue of law the opposing parties in the underlying action
were represented by very able counsel (the law firms of Latham amp Watkins and Seltzer Caplan
McMahon Vitek) and the legal issues were before and decided by judges after extensive
litigation briefing and argument After considering the law those judges unanimously ruled that
as a matter of law the benefits were not vested The SDPOA cannot possibly satisfy its burden
of proving by a preponderance of the evidence that this legal result was the fault of the
defendants ie that had the defendants only done something different it is more likely than not
that the questions of federal law in the underlying litigation would have been resolved
differently See Shopof[ 167 CalApp4th at 1509 Viner 30 Ca14th at 1240-43 Stated
differently whether the SDPOAs complaint is pure speculation - which it is - is a question of
law for this Court in this demurrer
In addition the same fatal flaw arises because the SDPOA through their present attorney
dismissed its state law claims The SDPOAs voluntary dismissal of its state law claims
precludes it from making the current legal malpractice claim By dismissing those claims the
SDPOA made it impossible to demonstrate but for causation in this case If the SDPOA
suffered any harm it has been on account of its own voluntary actions that have nothing to do
with Petersen and the claims alleged against him here
Lastly it is frivolous for Plaintiff to contend that the Defendants should bear
responsibility for the Citys decision to amend its Municipal Code and impose an $8800 cap on
annual retirement health benefits These Defendants have no control over the City and are not a
-17shyDefendant Petersens Demurrer To Complaint
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1 cause of the Citys own financial predicament and did not cause the City to decide to reduce the
2 SDPOAs members benefits before the underlying lawsuits had even been filed
3 VI
4 CONCLUSION
As discussed above there are at least two reasons why this demurrer should be sustained
6 without leave to amend First the SDPOAs complaint and court records from the underlying
7 litigation firmly establish that the SDPOAs claim against defendant Petersen is barred by the
8 one year statute of limitations applicable to legal malpractice actions Second the SDPOAs
9 allegations also firmly establish that Petersen did not cause the SDPOA any damage as a matter
oflaw
11 For these reasons defendant Petersens demurrer to Plaintiffs complaint should be
12 sustained Moreover because no amendment will change this result this demurrer should be
13 sustained without leave to amend
14
DATED May 142010 SEDGWICK DETERT MORAN amp ARNOLD LLP
17
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By1~~tra18 Gregory H Halliday
Frederick B Hayes 19 Attorneys for Defendant
GREGORY GLENN PETERSEN
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OC46299 I v I 8shyDefendant Petersens Demurrer To Complaint
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PROOF OF SERVICE
San Diego Police Officers Association v Jackson Deivfarco Tidus amp Peckenpaugh et al San Diego Superior Court Case No 37-2010-00088794-CU-PN-CTL
I am a resident of the State of California over the age of eighteen years and not a party to the within action My business address is Sedgwick Detert Moran amp Arnold LLP 3 Park Plaza 17th Floor Irvine California 92614middot8540 On May 142010 I served the within document(s)
DEFENDANT GREGORY GLENN PETERSENS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS COMPLAINT MEMORANDUM OF POINTS AND
AUTHORITIES
o FACSIMILEmiddot by transmitting via facsimile the document(s) listed above to the fax number(s) set forth on the attached Telecommunications Cover Page(s) on this date before 500 pm
MAILmiddot by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid in the United States mail at Irvine California addressed as set forth below
PERSONAL SERVICE - by personally delivering the document(s) listed above to the persltm(s) at the addressees) set forth below
o OVERNIGHT COURIER - by placing the document(s) listed above in a sealed envelope with shipping prepaid and depositing in a collection box for next day delivery to the person(s) at the addressees) set forth below via OverNite Express
SEE ATTACHED LIST
I am readily familiar with the finns practice of collection and processing correspondence for mailing Under that practice it would be deposited with the US Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business I am aware that on motion of the party served service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit
I declare under penalty of perjury under the laws of the State of California that the above is true and correct Executed on May 142010 at Irvine California
OCI463303v I
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San Diego Police Officers Association v Jackson Ddvfarco Tidus amp Peckenpaugh et ai SDSC Case No 37-2010-00088794-CU-PN-CTL
2 ProofofService shy Page 2
3
4 I Michael A Conger Esq AhUUltys for Plaintiff Law Office of Michael A Conger San Diego Police Officers Association 16236 San Dieguito Road Suite 4-14 PO Box 9374 (858) 759-0200 - telephone
6 Rancho Santa Fe CA 92067 (858) 759-1906 facsimile congermike(aJaoLcom
7 Gregory A Long Esq Attorneys for Defendants
8 Sheppard Mullin Richter amp Hampton LLP Jackson DeMarco Tidus amp Peckenpaugh 333 S Hope Street 48 th Floor
9 Los Angeles CA 90071 (213) 617-5443 phone (213) 620-1398 - facsimile
Iglongsheppardmullincom
11 Matthew W Holder Esq
12 Sheppard Mullin Richter amp HamptonLLP 12275 EI Camino Real Suite 200
13 San Diego CA 92130-2006
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OC463303v I
Attorneys for Defendants Jackson DeMarco Tidus amp Peckenpaugh
(858) 720-8900 - phone (858) 509-3691 facsimile mholdersheppardmullincom
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OC46299 I vI
Thus as of March 2008 the SDPOA had information sufficient to put a reasonable
person on inquiry The possibility that the SDPOA may not have understood or that their
attorneys at JDTP may not have told them of all of the significance of Petersens departure from
the JDTP law firm (eg the commencement of the statute as to any claims against Petersen) does
not alter the fact that the SDPOA discovered (or should have discovered) the facts which gave
rise to their legal malpractice claims against Petersen no later than March 3 2008
D Plaintiffs Suffered Actual Injury More Than One Year Before Filing Their
Complaint And The Statute of Limitations Has Not Been Tolled
Under Code of Civil Procedure section 3406 an action must be commenced one year
from discovery unless tolled because among other things the attorney continues to represent the
plaintiff regarding the specific subject matter in which the alleged act or omission occurred
(Code Civ Proc sect 3406) In this case there is no dispute that Petersens representation of the
SDPOA terminated in March 2008 when he left the JDTP law firm and ceased his representation
of the SDPOA As such there is no tolling ofthe statute in this situation for continuous
representation The present situation is somewhat analogous to Beal Bank SSB v Arter amp
Hadden LLP (2007) 42 Ca14th 503 (Beal Bank)
Beal Bank acquired loans that contained default provisions and retained the AampH law
firm to handle the collection efforts The attorney handling the matter left the AampH law firm and
the attorneys new firm took over Beal Banks representation When the collections efforts were
unsuccessful Beal Bank sued the AampH law firm and the new law firm The AampH law firm
demurred to the malpractice complaint on the theory that when the lawyer left and took the client
with him there was no need to continue to toll the statute of limitations against the AampH law
firm due to continued representation The Supreme Court agreed and held that once the case
leaves the firm the representation of the prior firm ceases and the statute of limitations clock
begins to tick against the prior firm (Beal Bank 42 Ca14th at pp 512-514)
The Supreme Court recognized that this situation may require malpractice plaintiffs to
move swiftly and perhaps act in filing a lawsuit before the underlying action was resolved but
the Supreme Court did not let this concern affect its reasoning regarding when continuous
Defendant Petersens Demurrer To Complaint
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OC462991vl
representation tolling ceases Here the clock for the SDPOAs malpractice claims against
Petersen commenced to tick in March 2008 when he left the JDTP law firm The SDPOA did
not file its action against Petersen within one year of March 2008 and therefore its legal
malpractice claim against him is time barred
The SDPOA may argue that because it appealed from the District Court and Superior
Courts orders in the underlying Aguirre and ~McGuigan litigation matters the statute of
limitations did not commence to run until the decisions on those appeals were rendered This
argument lacks merit and was rejected by the Jordache court when it determined that a causal
nexus between the injury and the malpractice does not need to be confirmed by settlement or
adjudication (Jordache 18 Cal4th at p 744) The Supreme Court reasoned that an existing
injury is not contingent or speculative simply because future events may effect its permanency or
the amount of monetary damages eventually incurred (fd at p 754)
Thus even if the SDPOA did not know whether future events (ie their appeals) may
effect the permanency of their injury (eg ruling that retiree benefits were not vested-
Complaint at 20) they still had suffered actual injury when the District Court and Superior Court
ruled against them and any tolling of the statute of limitations ended when Petersen departed the
JDTP law firm and his attorney-client relationship with the SDPOA terminated The fact that
appeals were still pending when he departed the JDTP law firm is of no consequence because in
determining actual injury the inquiry necessarily is more qualitative than quantitative because
the fact of damage rather than the amount is the critical factor (fd at p 752) The limitations
period is not tolled even ifthe injury is in some way remediable and appreciable actual injury
does not depend on the plaintiffs ability to attribute a quantifiable sum of money to
consequential damages (Jordache 18 Ca14th at p 750)
Here the underlying court records show Petersen no longer represented the SDPOA after
March 2008 The SDPOAs complaint offers no facts that would toll Section 3406 after the one
year limitations period commenced in March 2008 Because the SDPOA did not file this action
until March 29 2010 its claims against Petersen are time barred and this demurrer should be
sustained without leave to amend as to Petersen
-14shy--------- ---shy
Defendant Petersens Demurrer To Complaint
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OC46299lvl
V
PETERSENS DEMURRER SHOULD ALSO BE SUSTAINED BECAUSE THE SDPOA
HAS NOT PLEADED AND CANNOT PLEAD FACTS IN SUPPORT OF THE
CAUSATION AND DAMAGES ELEMENTS OF A CAUSES OF ACTION FOR LEGAL
MALPRACTICE
A To Prevail On A Claim For Legal Malpractice the Plaintiff Must Plead and
Prove the Defendant Caused the Plaintiffs Harm
The elements of a cause of action for professional negligence are (l) the duty ofthe
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 See ShopofJ amp Cavallo LLP v Hyon (2008) 167 CalApp4th 1489
1509 A claim for breach of contract also requires the plaintiff to prove that the defendants
breach caused the plaintiff to suffer damages See St Paul Fire amp Marin Ins Co v American
Dynasty Surplus Lines Ins Co (2002) 101 CaJApp4th 1038 1060 (An essential element of a
claim for breach of contract are damages resulting from the breach Causation ofdamages in
contract cases requires that the damages be proximately caused by the defendants breach)
The same causation test applies to both professional negligence and breach of contract claims
See Vasiion Therapeutics Inc v Foley amp Lardner LLP (SDCai 2008) 2008 WL 5147201 3 5
It is well settled that if the attorneys negligent conduct does not cause damage it
generates no cause of the action See ShopojJ 167 CaJApp4th at 1509 To show damages
proximately caused by the breach the pJaintiffmust demonstrate that but for the attorneys
malpractice it is more likely than not the plaintiff would have obtained a more favorable result
(d) See also Viner 30 Ca14th at 1240-43 Unless a party suffers damage as a consequence of
his attorneys negligence he cannot establish a cause of action for malpractice Breach of duty
causing only speculative harm is insufficient to create such a cause of action [D]amages may
5 SDPOA labels its claim as one for attorney malpractice and thus it is not clear if it intends to pursue a negligence theory a breach of contract theory or both See Complaint p 6 Regardless of whether the SDPOA pursues a tort or contract claim the same causation standard applies
-15shy----~---- ~----~~-~--~~~---------~------
Defendant Petersens Demurrer To Complaint
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OC462991 v J
not be based upon sheer speculation or surmise and the mere possibility or even probability that
damage will result from wrongful conduct does not render it actionable Thompson v Halvonik
(1995) 36 CalAppAth 657 661-62
As the California Supreme Court made clear in the seminal Viner case the crucial
causation inquiry is what would have happened if the defendant attorney had not been negligent
This is so because the very idea of causation necessarily involves comparing historical events to
a hypothetical alternative Viner 30 CaL4th at 1242 (emphasis in original) Although the label
of the test may differ from case to case the rule underlying the test is always the same to
prevail on a malpractice claim the plaintiff must demonstrate that the attorneys negligence
caused the plaintiffs harm See Viner at 1240 n 4 (noting that the causation inquiry is also
sometimes described as the case within the case or the trial within the trial)
B Causation in a Legal Malpractice Case is Appropriately Treated as an Issue
of Law Rather Than Fact When the Underlying Litigation Was Decided
Based on a Question of Law
The element of causation in a legal malpractice case is treated as an issue of law which
the underlying litigation was decided on a question of law As one California court has
explained no jury can reach its own judgment on the proper outcome of an earlier case that
hinged on an issue of law Piscitelli v Friedenberg (2001) 87 CalAppAh 953 974 quoting
with approval from Chocktoot v Smith (Ore 1977) 571 P2d 1255 1258 see also id at 971
(explaining that [i]n legal malpractice cases whether a court or jury decides the underlying
case-within-a-case [turns on] whether the issues are predominantly questions of fact or law)
C The SDPOA Cannot Establish That Had Defendants Made a Different
Argument the Plaintiff Would Have Obtained a More Favorable Outcome
The SDPOAs causation allegation against Petersen is not merely tenuous it is nonshy
existent First the SDPOA alleges that it was adversely affected before the lawsuit was filed and
Defendants were retained when the City implemented its last bet final offer at the bargaining
table which had the effect of reducing retirement health benefit As a matter of law Petersen is
not the cause of the Citys bargaining position Moreover the underlying litigation on which the
Defendant Petersens Demurrer To Complaint
-----
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OCI46299I v I
SDPOAs legal malpractice claims are based were part of the SDPOAs response to the Citys
reduction of the health benefits
Second Plaintiff argues that because the Defendants did not put on evidence of some
unidentified and undisputed facts or make unidentifled arguments or cite unidentified precedent
the trial courts in those matters wrongly decided issues concerning whether the SDPOAs
members retirement health benefits were vested
Whether retirement health benefits were vested under the federal law at issue in the
underlying litigation was a contested issue of law the opposing parties in the underlying action
were represented by very able counsel (the law firms of Latham amp Watkins and Seltzer Caplan
McMahon Vitek) and the legal issues were before and decided by judges after extensive
litigation briefing and argument After considering the law those judges unanimously ruled that
as a matter of law the benefits were not vested The SDPOA cannot possibly satisfy its burden
of proving by a preponderance of the evidence that this legal result was the fault of the
defendants ie that had the defendants only done something different it is more likely than not
that the questions of federal law in the underlying litigation would have been resolved
differently See Shopof[ 167 CalApp4th at 1509 Viner 30 Ca14th at 1240-43 Stated
differently whether the SDPOAs complaint is pure speculation - which it is - is a question of
law for this Court in this demurrer
In addition the same fatal flaw arises because the SDPOA through their present attorney
dismissed its state law claims The SDPOAs voluntary dismissal of its state law claims
precludes it from making the current legal malpractice claim By dismissing those claims the
SDPOA made it impossible to demonstrate but for causation in this case If the SDPOA
suffered any harm it has been on account of its own voluntary actions that have nothing to do
with Petersen and the claims alleged against him here
Lastly it is frivolous for Plaintiff to contend that the Defendants should bear
responsibility for the Citys decision to amend its Municipal Code and impose an $8800 cap on
annual retirement health benefits These Defendants have no control over the City and are not a
-17shyDefendant Petersens Demurrer To Complaint
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1 cause of the Citys own financial predicament and did not cause the City to decide to reduce the
2 SDPOAs members benefits before the underlying lawsuits had even been filed
3 VI
4 CONCLUSION
As discussed above there are at least two reasons why this demurrer should be sustained
6 without leave to amend First the SDPOAs complaint and court records from the underlying
7 litigation firmly establish that the SDPOAs claim against defendant Petersen is barred by the
8 one year statute of limitations applicable to legal malpractice actions Second the SDPOAs
9 allegations also firmly establish that Petersen did not cause the SDPOA any damage as a matter
oflaw
11 For these reasons defendant Petersens demurrer to Plaintiffs complaint should be
12 sustained Moreover because no amendment will change this result this demurrer should be
13 sustained without leave to amend
14
DATED May 142010 SEDGWICK DETERT MORAN amp ARNOLD LLP
17
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By1~~tra18 Gregory H Halliday
Frederick B Hayes 19 Attorneys for Defendant
GREGORY GLENN PETERSEN
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OC46299 I v I 8shyDefendant Petersens Demurrer To Complaint
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PROOF OF SERVICE
San Diego Police Officers Association v Jackson Deivfarco Tidus amp Peckenpaugh et al San Diego Superior Court Case No 37-2010-00088794-CU-PN-CTL
I am a resident of the State of California over the age of eighteen years and not a party to the within action My business address is Sedgwick Detert Moran amp Arnold LLP 3 Park Plaza 17th Floor Irvine California 92614middot8540 On May 142010 I served the within document(s)
DEFENDANT GREGORY GLENN PETERSENS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS COMPLAINT MEMORANDUM OF POINTS AND
AUTHORITIES
o FACSIMILEmiddot by transmitting via facsimile the document(s) listed above to the fax number(s) set forth on the attached Telecommunications Cover Page(s) on this date before 500 pm
MAILmiddot by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid in the United States mail at Irvine California addressed as set forth below
PERSONAL SERVICE - by personally delivering the document(s) listed above to the persltm(s) at the addressees) set forth below
o OVERNIGHT COURIER - by placing the document(s) listed above in a sealed envelope with shipping prepaid and depositing in a collection box for next day delivery to the person(s) at the addressees) set forth below via OverNite Express
SEE ATTACHED LIST
I am readily familiar with the finns practice of collection and processing correspondence for mailing Under that practice it would be deposited with the US Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business I am aware that on motion of the party served service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit
I declare under penalty of perjury under the laws of the State of California that the above is true and correct Executed on May 142010 at Irvine California
OCI463303v I
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San Diego Police Officers Association v Jackson Ddvfarco Tidus amp Peckenpaugh et ai SDSC Case No 37-2010-00088794-CU-PN-CTL
2 ProofofService shy Page 2
3
4 I Michael A Conger Esq AhUUltys for Plaintiff Law Office of Michael A Conger San Diego Police Officers Association 16236 San Dieguito Road Suite 4-14 PO Box 9374 (858) 759-0200 - telephone
6 Rancho Santa Fe CA 92067 (858) 759-1906 facsimile congermike(aJaoLcom
7 Gregory A Long Esq Attorneys for Defendants
8 Sheppard Mullin Richter amp Hampton LLP Jackson DeMarco Tidus amp Peckenpaugh 333 S Hope Street 48 th Floor
9 Los Angeles CA 90071 (213) 617-5443 phone (213) 620-1398 - facsimile
Iglongsheppardmullincom
11 Matthew W Holder Esq
12 Sheppard Mullin Richter amp HamptonLLP 12275 EI Camino Real Suite 200
13 San Diego CA 92130-2006
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OC463303v I
Attorneys for Defendants Jackson DeMarco Tidus amp Peckenpaugh
(858) 720-8900 - phone (858) 509-3691 facsimile mholdersheppardmullincom
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OC462991vl
representation tolling ceases Here the clock for the SDPOAs malpractice claims against
Petersen commenced to tick in March 2008 when he left the JDTP law firm The SDPOA did
not file its action against Petersen within one year of March 2008 and therefore its legal
malpractice claim against him is time barred
The SDPOA may argue that because it appealed from the District Court and Superior
Courts orders in the underlying Aguirre and ~McGuigan litigation matters the statute of
limitations did not commence to run until the decisions on those appeals were rendered This
argument lacks merit and was rejected by the Jordache court when it determined that a causal
nexus between the injury and the malpractice does not need to be confirmed by settlement or
adjudication (Jordache 18 Cal4th at p 744) The Supreme Court reasoned that an existing
injury is not contingent or speculative simply because future events may effect its permanency or
the amount of monetary damages eventually incurred (fd at p 754)
Thus even if the SDPOA did not know whether future events (ie their appeals) may
effect the permanency of their injury (eg ruling that retiree benefits were not vested-
Complaint at 20) they still had suffered actual injury when the District Court and Superior Court
ruled against them and any tolling of the statute of limitations ended when Petersen departed the
JDTP law firm and his attorney-client relationship with the SDPOA terminated The fact that
appeals were still pending when he departed the JDTP law firm is of no consequence because in
determining actual injury the inquiry necessarily is more qualitative than quantitative because
the fact of damage rather than the amount is the critical factor (fd at p 752) The limitations
period is not tolled even ifthe injury is in some way remediable and appreciable actual injury
does not depend on the plaintiffs ability to attribute a quantifiable sum of money to
consequential damages (Jordache 18 Ca14th at p 750)
Here the underlying court records show Petersen no longer represented the SDPOA after
March 2008 The SDPOAs complaint offers no facts that would toll Section 3406 after the one
year limitations period commenced in March 2008 Because the SDPOA did not file this action
until March 29 2010 its claims against Petersen are time barred and this demurrer should be
sustained without leave to amend as to Petersen
-14shy--------- ---shy
Defendant Petersens Demurrer To Complaint
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OC46299lvl
V
PETERSENS DEMURRER SHOULD ALSO BE SUSTAINED BECAUSE THE SDPOA
HAS NOT PLEADED AND CANNOT PLEAD FACTS IN SUPPORT OF THE
CAUSATION AND DAMAGES ELEMENTS OF A CAUSES OF ACTION FOR LEGAL
MALPRACTICE
A To Prevail On A Claim For Legal Malpractice the Plaintiff Must Plead and
Prove the Defendant Caused the Plaintiffs Harm
The elements of a cause of action for professional negligence are (l) the duty ofthe
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 See ShopofJ amp Cavallo LLP v Hyon (2008) 167 CalApp4th 1489
1509 A claim for breach of contract also requires the plaintiff to prove that the defendants
breach caused the plaintiff to suffer damages See St Paul Fire amp Marin Ins Co v American
Dynasty Surplus Lines Ins Co (2002) 101 CaJApp4th 1038 1060 (An essential element of a
claim for breach of contract are damages resulting from the breach Causation ofdamages in
contract cases requires that the damages be proximately caused by the defendants breach)
The same causation test applies to both professional negligence and breach of contract claims
See Vasiion Therapeutics Inc v Foley amp Lardner LLP (SDCai 2008) 2008 WL 5147201 3 5
It is well settled that if the attorneys negligent conduct does not cause damage it
generates no cause of the action See ShopojJ 167 CaJApp4th at 1509 To show damages
proximately caused by the breach the pJaintiffmust demonstrate that but for the attorneys
malpractice it is more likely than not the plaintiff would have obtained a more favorable result
(d) See also Viner 30 Ca14th at 1240-43 Unless a party suffers damage as a consequence of
his attorneys negligence he cannot establish a cause of action for malpractice Breach of duty
causing only speculative harm is insufficient to create such a cause of action [D]amages may
5 SDPOA labels its claim as one for attorney malpractice and thus it is not clear if it intends to pursue a negligence theory a breach of contract theory or both See Complaint p 6 Regardless of whether the SDPOA pursues a tort or contract claim the same causation standard applies
-15shy----~---- ~----~~-~--~~~---------~------
Defendant Petersens Demurrer To Complaint
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OC462991 v J
not be based upon sheer speculation or surmise and the mere possibility or even probability that
damage will result from wrongful conduct does not render it actionable Thompson v Halvonik
(1995) 36 CalAppAth 657 661-62
As the California Supreme Court made clear in the seminal Viner case the crucial
causation inquiry is what would have happened if the defendant attorney had not been negligent
This is so because the very idea of causation necessarily involves comparing historical events to
a hypothetical alternative Viner 30 CaL4th at 1242 (emphasis in original) Although the label
of the test may differ from case to case the rule underlying the test is always the same to
prevail on a malpractice claim the plaintiff must demonstrate that the attorneys negligence
caused the plaintiffs harm See Viner at 1240 n 4 (noting that the causation inquiry is also
sometimes described as the case within the case or the trial within the trial)
B Causation in a Legal Malpractice Case is Appropriately Treated as an Issue
of Law Rather Than Fact When the Underlying Litigation Was Decided
Based on a Question of Law
The element of causation in a legal malpractice case is treated as an issue of law which
the underlying litigation was decided on a question of law As one California court has
explained no jury can reach its own judgment on the proper outcome of an earlier case that
hinged on an issue of law Piscitelli v Friedenberg (2001) 87 CalAppAh 953 974 quoting
with approval from Chocktoot v Smith (Ore 1977) 571 P2d 1255 1258 see also id at 971
(explaining that [i]n legal malpractice cases whether a court or jury decides the underlying
case-within-a-case [turns on] whether the issues are predominantly questions of fact or law)
C The SDPOA Cannot Establish That Had Defendants Made a Different
Argument the Plaintiff Would Have Obtained a More Favorable Outcome
The SDPOAs causation allegation against Petersen is not merely tenuous it is nonshy
existent First the SDPOA alleges that it was adversely affected before the lawsuit was filed and
Defendants were retained when the City implemented its last bet final offer at the bargaining
table which had the effect of reducing retirement health benefit As a matter of law Petersen is
not the cause of the Citys bargaining position Moreover the underlying litigation on which the
Defendant Petersens Demurrer To Complaint
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OCI46299I v I
SDPOAs legal malpractice claims are based were part of the SDPOAs response to the Citys
reduction of the health benefits
Second Plaintiff argues that because the Defendants did not put on evidence of some
unidentified and undisputed facts or make unidentifled arguments or cite unidentified precedent
the trial courts in those matters wrongly decided issues concerning whether the SDPOAs
members retirement health benefits were vested
Whether retirement health benefits were vested under the federal law at issue in the
underlying litigation was a contested issue of law the opposing parties in the underlying action
were represented by very able counsel (the law firms of Latham amp Watkins and Seltzer Caplan
McMahon Vitek) and the legal issues were before and decided by judges after extensive
litigation briefing and argument After considering the law those judges unanimously ruled that
as a matter of law the benefits were not vested The SDPOA cannot possibly satisfy its burden
of proving by a preponderance of the evidence that this legal result was the fault of the
defendants ie that had the defendants only done something different it is more likely than not
that the questions of federal law in the underlying litigation would have been resolved
differently See Shopof[ 167 CalApp4th at 1509 Viner 30 Ca14th at 1240-43 Stated
differently whether the SDPOAs complaint is pure speculation - which it is - is a question of
law for this Court in this demurrer
In addition the same fatal flaw arises because the SDPOA through their present attorney
dismissed its state law claims The SDPOAs voluntary dismissal of its state law claims
precludes it from making the current legal malpractice claim By dismissing those claims the
SDPOA made it impossible to demonstrate but for causation in this case If the SDPOA
suffered any harm it has been on account of its own voluntary actions that have nothing to do
with Petersen and the claims alleged against him here
Lastly it is frivolous for Plaintiff to contend that the Defendants should bear
responsibility for the Citys decision to amend its Municipal Code and impose an $8800 cap on
annual retirement health benefits These Defendants have no control over the City and are not a
-17shyDefendant Petersens Demurrer To Complaint
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1 cause of the Citys own financial predicament and did not cause the City to decide to reduce the
2 SDPOAs members benefits before the underlying lawsuits had even been filed
3 VI
4 CONCLUSION
As discussed above there are at least two reasons why this demurrer should be sustained
6 without leave to amend First the SDPOAs complaint and court records from the underlying
7 litigation firmly establish that the SDPOAs claim against defendant Petersen is barred by the
8 one year statute of limitations applicable to legal malpractice actions Second the SDPOAs
9 allegations also firmly establish that Petersen did not cause the SDPOA any damage as a matter
oflaw
11 For these reasons defendant Petersens demurrer to Plaintiffs complaint should be
12 sustained Moreover because no amendment will change this result this demurrer should be
13 sustained without leave to amend
14
DATED May 142010 SEDGWICK DETERT MORAN amp ARNOLD LLP
17
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By1~~tra18 Gregory H Halliday
Frederick B Hayes 19 Attorneys for Defendant
GREGORY GLENN PETERSEN
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OC46299 I v I 8shyDefendant Petersens Demurrer To Complaint
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PROOF OF SERVICE
San Diego Police Officers Association v Jackson Deivfarco Tidus amp Peckenpaugh et al San Diego Superior Court Case No 37-2010-00088794-CU-PN-CTL
I am a resident of the State of California over the age of eighteen years and not a party to the within action My business address is Sedgwick Detert Moran amp Arnold LLP 3 Park Plaza 17th Floor Irvine California 92614middot8540 On May 142010 I served the within document(s)
DEFENDANT GREGORY GLENN PETERSENS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS COMPLAINT MEMORANDUM OF POINTS AND
AUTHORITIES
o FACSIMILEmiddot by transmitting via facsimile the document(s) listed above to the fax number(s) set forth on the attached Telecommunications Cover Page(s) on this date before 500 pm
MAILmiddot by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid in the United States mail at Irvine California addressed as set forth below
PERSONAL SERVICE - by personally delivering the document(s) listed above to the persltm(s) at the addressees) set forth below
o OVERNIGHT COURIER - by placing the document(s) listed above in a sealed envelope with shipping prepaid and depositing in a collection box for next day delivery to the person(s) at the addressees) set forth below via OverNite Express
SEE ATTACHED LIST
I am readily familiar with the finns practice of collection and processing correspondence for mailing Under that practice it would be deposited with the US Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business I am aware that on motion of the party served service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit
I declare under penalty of perjury under the laws of the State of California that the above is true and correct Executed on May 142010 at Irvine California
OCI463303v I
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San Diego Police Officers Association v Jackson Ddvfarco Tidus amp Peckenpaugh et ai SDSC Case No 37-2010-00088794-CU-PN-CTL
2 ProofofService shy Page 2
3
4 I Michael A Conger Esq AhUUltys for Plaintiff Law Office of Michael A Conger San Diego Police Officers Association 16236 San Dieguito Road Suite 4-14 PO Box 9374 (858) 759-0200 - telephone
6 Rancho Santa Fe CA 92067 (858) 759-1906 facsimile congermike(aJaoLcom
7 Gregory A Long Esq Attorneys for Defendants
8 Sheppard Mullin Richter amp Hampton LLP Jackson DeMarco Tidus amp Peckenpaugh 333 S Hope Street 48 th Floor
9 Los Angeles CA 90071 (213) 617-5443 phone (213) 620-1398 - facsimile
Iglongsheppardmullincom
11 Matthew W Holder Esq
12 Sheppard Mullin Richter amp HamptonLLP 12275 EI Camino Real Suite 200
13 San Diego CA 92130-2006
14 ~ -
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OC463303v I
Attorneys for Defendants Jackson DeMarco Tidus amp Peckenpaugh
(858) 720-8900 - phone (858) 509-3691 facsimile mholdersheppardmullincom
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OC46299lvl
V
PETERSENS DEMURRER SHOULD ALSO BE SUSTAINED BECAUSE THE SDPOA
HAS NOT PLEADED AND CANNOT PLEAD FACTS IN SUPPORT OF THE
CAUSATION AND DAMAGES ELEMENTS OF A CAUSES OF ACTION FOR LEGAL
MALPRACTICE
A To Prevail On A Claim For Legal Malpractice the Plaintiff Must Plead and
Prove the Defendant Caused the Plaintiffs Harm
The elements of a cause of action for professional negligence are (l) the duty ofthe
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 See ShopofJ amp Cavallo LLP v Hyon (2008) 167 CalApp4th 1489
1509 A claim for breach of contract also requires the plaintiff to prove that the defendants
breach caused the plaintiff to suffer damages See St Paul Fire amp Marin Ins Co v American
Dynasty Surplus Lines Ins Co (2002) 101 CaJApp4th 1038 1060 (An essential element of a
claim for breach of contract are damages resulting from the breach Causation ofdamages in
contract cases requires that the damages be proximately caused by the defendants breach)
The same causation test applies to both professional negligence and breach of contract claims
See Vasiion Therapeutics Inc v Foley amp Lardner LLP (SDCai 2008) 2008 WL 5147201 3 5
It is well settled that if the attorneys negligent conduct does not cause damage it
generates no cause of the action See ShopojJ 167 CaJApp4th at 1509 To show damages
proximately caused by the breach the pJaintiffmust demonstrate that but for the attorneys
malpractice it is more likely than not the plaintiff would have obtained a more favorable result
(d) See also Viner 30 Ca14th at 1240-43 Unless a party suffers damage as a consequence of
his attorneys negligence he cannot establish a cause of action for malpractice Breach of duty
causing only speculative harm is insufficient to create such a cause of action [D]amages may
5 SDPOA labels its claim as one for attorney malpractice and thus it is not clear if it intends to pursue a negligence theory a breach of contract theory or both See Complaint p 6 Regardless of whether the SDPOA pursues a tort or contract claim the same causation standard applies
-15shy----~---- ~----~~-~--~~~---------~------
Defendant Petersens Demurrer To Complaint
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OC462991 v J
not be based upon sheer speculation or surmise and the mere possibility or even probability that
damage will result from wrongful conduct does not render it actionable Thompson v Halvonik
(1995) 36 CalAppAth 657 661-62
As the California Supreme Court made clear in the seminal Viner case the crucial
causation inquiry is what would have happened if the defendant attorney had not been negligent
This is so because the very idea of causation necessarily involves comparing historical events to
a hypothetical alternative Viner 30 CaL4th at 1242 (emphasis in original) Although the label
of the test may differ from case to case the rule underlying the test is always the same to
prevail on a malpractice claim the plaintiff must demonstrate that the attorneys negligence
caused the plaintiffs harm See Viner at 1240 n 4 (noting that the causation inquiry is also
sometimes described as the case within the case or the trial within the trial)
B Causation in a Legal Malpractice Case is Appropriately Treated as an Issue
of Law Rather Than Fact When the Underlying Litigation Was Decided
Based on a Question of Law
The element of causation in a legal malpractice case is treated as an issue of law which
the underlying litigation was decided on a question of law As one California court has
explained no jury can reach its own judgment on the proper outcome of an earlier case that
hinged on an issue of law Piscitelli v Friedenberg (2001) 87 CalAppAh 953 974 quoting
with approval from Chocktoot v Smith (Ore 1977) 571 P2d 1255 1258 see also id at 971
(explaining that [i]n legal malpractice cases whether a court or jury decides the underlying
case-within-a-case [turns on] whether the issues are predominantly questions of fact or law)
C The SDPOA Cannot Establish That Had Defendants Made a Different
Argument the Plaintiff Would Have Obtained a More Favorable Outcome
The SDPOAs causation allegation against Petersen is not merely tenuous it is nonshy
existent First the SDPOA alleges that it was adversely affected before the lawsuit was filed and
Defendants were retained when the City implemented its last bet final offer at the bargaining
table which had the effect of reducing retirement health benefit As a matter of law Petersen is
not the cause of the Citys bargaining position Moreover the underlying litigation on which the
Defendant Petersens Demurrer To Complaint
-----
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OCI46299I v I
SDPOAs legal malpractice claims are based were part of the SDPOAs response to the Citys
reduction of the health benefits
Second Plaintiff argues that because the Defendants did not put on evidence of some
unidentified and undisputed facts or make unidentifled arguments or cite unidentified precedent
the trial courts in those matters wrongly decided issues concerning whether the SDPOAs
members retirement health benefits were vested
Whether retirement health benefits were vested under the federal law at issue in the
underlying litigation was a contested issue of law the opposing parties in the underlying action
were represented by very able counsel (the law firms of Latham amp Watkins and Seltzer Caplan
McMahon Vitek) and the legal issues were before and decided by judges after extensive
litigation briefing and argument After considering the law those judges unanimously ruled that
as a matter of law the benefits were not vested The SDPOA cannot possibly satisfy its burden
of proving by a preponderance of the evidence that this legal result was the fault of the
defendants ie that had the defendants only done something different it is more likely than not
that the questions of federal law in the underlying litigation would have been resolved
differently See Shopof[ 167 CalApp4th at 1509 Viner 30 Ca14th at 1240-43 Stated
differently whether the SDPOAs complaint is pure speculation - which it is - is a question of
law for this Court in this demurrer
In addition the same fatal flaw arises because the SDPOA through their present attorney
dismissed its state law claims The SDPOAs voluntary dismissal of its state law claims
precludes it from making the current legal malpractice claim By dismissing those claims the
SDPOA made it impossible to demonstrate but for causation in this case If the SDPOA
suffered any harm it has been on account of its own voluntary actions that have nothing to do
with Petersen and the claims alleged against him here
Lastly it is frivolous for Plaintiff to contend that the Defendants should bear
responsibility for the Citys decision to amend its Municipal Code and impose an $8800 cap on
annual retirement health benefits These Defendants have no control over the City and are not a
-17shyDefendant Petersens Demurrer To Complaint
5
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1 cause of the Citys own financial predicament and did not cause the City to decide to reduce the
2 SDPOAs members benefits before the underlying lawsuits had even been filed
3 VI
4 CONCLUSION
As discussed above there are at least two reasons why this demurrer should be sustained
6 without leave to amend First the SDPOAs complaint and court records from the underlying
7 litigation firmly establish that the SDPOAs claim against defendant Petersen is barred by the
8 one year statute of limitations applicable to legal malpractice actions Second the SDPOAs
9 allegations also firmly establish that Petersen did not cause the SDPOA any damage as a matter
oflaw
11 For these reasons defendant Petersens demurrer to Plaintiffs complaint should be
12 sustained Moreover because no amendment will change this result this demurrer should be
13 sustained without leave to amend
14
DATED May 142010 SEDGWICK DETERT MORAN amp ARNOLD LLP
17
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By1~~tra18 Gregory H Halliday
Frederick B Hayes 19 Attorneys for Defendant
GREGORY GLENN PETERSEN
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OC46299 I v I 8shyDefendant Petersens Demurrer To Complaint
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PROOF OF SERVICE
San Diego Police Officers Association v Jackson Deivfarco Tidus amp Peckenpaugh et al San Diego Superior Court Case No 37-2010-00088794-CU-PN-CTL
I am a resident of the State of California over the age of eighteen years and not a party to the within action My business address is Sedgwick Detert Moran amp Arnold LLP 3 Park Plaza 17th Floor Irvine California 92614middot8540 On May 142010 I served the within document(s)
DEFENDANT GREGORY GLENN PETERSENS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS COMPLAINT MEMORANDUM OF POINTS AND
AUTHORITIES
o FACSIMILEmiddot by transmitting via facsimile the document(s) listed above to the fax number(s) set forth on the attached Telecommunications Cover Page(s) on this date before 500 pm
MAILmiddot by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid in the United States mail at Irvine California addressed as set forth below
PERSONAL SERVICE - by personally delivering the document(s) listed above to the persltm(s) at the addressees) set forth below
o OVERNIGHT COURIER - by placing the document(s) listed above in a sealed envelope with shipping prepaid and depositing in a collection box for next day delivery to the person(s) at the addressees) set forth below via OverNite Express
SEE ATTACHED LIST
I am readily familiar with the finns practice of collection and processing correspondence for mailing Under that practice it would be deposited with the US Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business I am aware that on motion of the party served service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit
I declare under penalty of perjury under the laws of the State of California that the above is true and correct Executed on May 142010 at Irvine California
OCI463303v I
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San Diego Police Officers Association v Jackson Ddvfarco Tidus amp Peckenpaugh et ai SDSC Case No 37-2010-00088794-CU-PN-CTL
2 ProofofService shy Page 2
3
4 I Michael A Conger Esq AhUUltys for Plaintiff Law Office of Michael A Conger San Diego Police Officers Association 16236 San Dieguito Road Suite 4-14 PO Box 9374 (858) 759-0200 - telephone
6 Rancho Santa Fe CA 92067 (858) 759-1906 facsimile congermike(aJaoLcom
7 Gregory A Long Esq Attorneys for Defendants
8 Sheppard Mullin Richter amp Hampton LLP Jackson DeMarco Tidus amp Peckenpaugh 333 S Hope Street 48 th Floor
9 Los Angeles CA 90071 (213) 617-5443 phone (213) 620-1398 - facsimile
Iglongsheppardmullincom
11 Matthew W Holder Esq
12 Sheppard Mullin Richter amp HamptonLLP 12275 EI Camino Real Suite 200
13 San Diego CA 92130-2006
14 ~ -
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19
21
22
23
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26
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28
OC463303v I
Attorneys for Defendants Jackson DeMarco Tidus amp Peckenpaugh
(858) 720-8900 - phone (858) 509-3691 facsimile mholdersheppardmullincom
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25
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OC462991 v J
not be based upon sheer speculation or surmise and the mere possibility or even probability that
damage will result from wrongful conduct does not render it actionable Thompson v Halvonik
(1995) 36 CalAppAth 657 661-62
As the California Supreme Court made clear in the seminal Viner case the crucial
causation inquiry is what would have happened if the defendant attorney had not been negligent
This is so because the very idea of causation necessarily involves comparing historical events to
a hypothetical alternative Viner 30 CaL4th at 1242 (emphasis in original) Although the label
of the test may differ from case to case the rule underlying the test is always the same to
prevail on a malpractice claim the plaintiff must demonstrate that the attorneys negligence
caused the plaintiffs harm See Viner at 1240 n 4 (noting that the causation inquiry is also
sometimes described as the case within the case or the trial within the trial)
B Causation in a Legal Malpractice Case is Appropriately Treated as an Issue
of Law Rather Than Fact When the Underlying Litigation Was Decided
Based on a Question of Law
The element of causation in a legal malpractice case is treated as an issue of law which
the underlying litigation was decided on a question of law As one California court has
explained no jury can reach its own judgment on the proper outcome of an earlier case that
hinged on an issue of law Piscitelli v Friedenberg (2001) 87 CalAppAh 953 974 quoting
with approval from Chocktoot v Smith (Ore 1977) 571 P2d 1255 1258 see also id at 971
(explaining that [i]n legal malpractice cases whether a court or jury decides the underlying
case-within-a-case [turns on] whether the issues are predominantly questions of fact or law)
C The SDPOA Cannot Establish That Had Defendants Made a Different
Argument the Plaintiff Would Have Obtained a More Favorable Outcome
The SDPOAs causation allegation against Petersen is not merely tenuous it is nonshy
existent First the SDPOA alleges that it was adversely affected before the lawsuit was filed and
Defendants were retained when the City implemented its last bet final offer at the bargaining
table which had the effect of reducing retirement health benefit As a matter of law Petersen is
not the cause of the Citys bargaining position Moreover the underlying litigation on which the
Defendant Petersens Demurrer To Complaint
-----
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OCI46299I v I
SDPOAs legal malpractice claims are based were part of the SDPOAs response to the Citys
reduction of the health benefits
Second Plaintiff argues that because the Defendants did not put on evidence of some
unidentified and undisputed facts or make unidentifled arguments or cite unidentified precedent
the trial courts in those matters wrongly decided issues concerning whether the SDPOAs
members retirement health benefits were vested
Whether retirement health benefits were vested under the federal law at issue in the
underlying litigation was a contested issue of law the opposing parties in the underlying action
were represented by very able counsel (the law firms of Latham amp Watkins and Seltzer Caplan
McMahon Vitek) and the legal issues were before and decided by judges after extensive
litigation briefing and argument After considering the law those judges unanimously ruled that
as a matter of law the benefits were not vested The SDPOA cannot possibly satisfy its burden
of proving by a preponderance of the evidence that this legal result was the fault of the
defendants ie that had the defendants only done something different it is more likely than not
that the questions of federal law in the underlying litigation would have been resolved
differently See Shopof[ 167 CalApp4th at 1509 Viner 30 Ca14th at 1240-43 Stated
differently whether the SDPOAs complaint is pure speculation - which it is - is a question of
law for this Court in this demurrer
In addition the same fatal flaw arises because the SDPOA through their present attorney
dismissed its state law claims The SDPOAs voluntary dismissal of its state law claims
precludes it from making the current legal malpractice claim By dismissing those claims the
SDPOA made it impossible to demonstrate but for causation in this case If the SDPOA
suffered any harm it has been on account of its own voluntary actions that have nothing to do
with Petersen and the claims alleged against him here
Lastly it is frivolous for Plaintiff to contend that the Defendants should bear
responsibility for the Citys decision to amend its Municipal Code and impose an $8800 cap on
annual retirement health benefits These Defendants have no control over the City and are not a
-17shyDefendant Petersens Demurrer To Complaint
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1 cause of the Citys own financial predicament and did not cause the City to decide to reduce the
2 SDPOAs members benefits before the underlying lawsuits had even been filed
3 VI
4 CONCLUSION
As discussed above there are at least two reasons why this demurrer should be sustained
6 without leave to amend First the SDPOAs complaint and court records from the underlying
7 litigation firmly establish that the SDPOAs claim against defendant Petersen is barred by the
8 one year statute of limitations applicable to legal malpractice actions Second the SDPOAs
9 allegations also firmly establish that Petersen did not cause the SDPOA any damage as a matter
oflaw
11 For these reasons defendant Petersens demurrer to Plaintiffs complaint should be
12 sustained Moreover because no amendment will change this result this demurrer should be
13 sustained without leave to amend
14
DATED May 142010 SEDGWICK DETERT MORAN amp ARNOLD LLP
17
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By1~~tra18 Gregory H Halliday
Frederick B Hayes 19 Attorneys for Defendant
GREGORY GLENN PETERSEN
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OC46299 I v I 8shyDefendant Petersens Demurrer To Complaint
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PROOF OF SERVICE
San Diego Police Officers Association v Jackson Deivfarco Tidus amp Peckenpaugh et al San Diego Superior Court Case No 37-2010-00088794-CU-PN-CTL
I am a resident of the State of California over the age of eighteen years and not a party to the within action My business address is Sedgwick Detert Moran amp Arnold LLP 3 Park Plaza 17th Floor Irvine California 92614middot8540 On May 142010 I served the within document(s)
DEFENDANT GREGORY GLENN PETERSENS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS COMPLAINT MEMORANDUM OF POINTS AND
AUTHORITIES
o FACSIMILEmiddot by transmitting via facsimile the document(s) listed above to the fax number(s) set forth on the attached Telecommunications Cover Page(s) on this date before 500 pm
MAILmiddot by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid in the United States mail at Irvine California addressed as set forth below
PERSONAL SERVICE - by personally delivering the document(s) listed above to the persltm(s) at the addressees) set forth below
o OVERNIGHT COURIER - by placing the document(s) listed above in a sealed envelope with shipping prepaid and depositing in a collection box for next day delivery to the person(s) at the addressees) set forth below via OverNite Express
SEE ATTACHED LIST
I am readily familiar with the finns practice of collection and processing correspondence for mailing Under that practice it would be deposited with the US Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business I am aware that on motion of the party served service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit
I declare under penalty of perjury under the laws of the State of California that the above is true and correct Executed on May 142010 at Irvine California
OCI463303v I
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25
San Diego Police Officers Association v Jackson Ddvfarco Tidus amp Peckenpaugh et ai SDSC Case No 37-2010-00088794-CU-PN-CTL
2 ProofofService shy Page 2
3
4 I Michael A Conger Esq AhUUltys for Plaintiff Law Office of Michael A Conger San Diego Police Officers Association 16236 San Dieguito Road Suite 4-14 PO Box 9374 (858) 759-0200 - telephone
6 Rancho Santa Fe CA 92067 (858) 759-1906 facsimile congermike(aJaoLcom
7 Gregory A Long Esq Attorneys for Defendants
8 Sheppard Mullin Richter amp Hampton LLP Jackson DeMarco Tidus amp Peckenpaugh 333 S Hope Street 48 th Floor
9 Los Angeles CA 90071 (213) 617-5443 phone (213) 620-1398 - facsimile
Iglongsheppardmullincom
11 Matthew W Holder Esq
12 Sheppard Mullin Richter amp HamptonLLP 12275 EI Camino Real Suite 200
13 San Diego CA 92130-2006
14 ~ -
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OC463303v I
Attorneys for Defendants Jackson DeMarco Tidus amp Peckenpaugh
(858) 720-8900 - phone (858) 509-3691 facsimile mholdersheppardmullincom
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OCI46299I v I
SDPOAs legal malpractice claims are based were part of the SDPOAs response to the Citys
reduction of the health benefits
Second Plaintiff argues that because the Defendants did not put on evidence of some
unidentified and undisputed facts or make unidentifled arguments or cite unidentified precedent
the trial courts in those matters wrongly decided issues concerning whether the SDPOAs
members retirement health benefits were vested
Whether retirement health benefits were vested under the federal law at issue in the
underlying litigation was a contested issue of law the opposing parties in the underlying action
were represented by very able counsel (the law firms of Latham amp Watkins and Seltzer Caplan
McMahon Vitek) and the legal issues were before and decided by judges after extensive
litigation briefing and argument After considering the law those judges unanimously ruled that
as a matter of law the benefits were not vested The SDPOA cannot possibly satisfy its burden
of proving by a preponderance of the evidence that this legal result was the fault of the
defendants ie that had the defendants only done something different it is more likely than not
that the questions of federal law in the underlying litigation would have been resolved
differently See Shopof[ 167 CalApp4th at 1509 Viner 30 Ca14th at 1240-43 Stated
differently whether the SDPOAs complaint is pure speculation - which it is - is a question of
law for this Court in this demurrer
In addition the same fatal flaw arises because the SDPOA through their present attorney
dismissed its state law claims The SDPOAs voluntary dismissal of its state law claims
precludes it from making the current legal malpractice claim By dismissing those claims the
SDPOA made it impossible to demonstrate but for causation in this case If the SDPOA
suffered any harm it has been on account of its own voluntary actions that have nothing to do
with Petersen and the claims alleged against him here
Lastly it is frivolous for Plaintiff to contend that the Defendants should bear
responsibility for the Citys decision to amend its Municipal Code and impose an $8800 cap on
annual retirement health benefits These Defendants have no control over the City and are not a
-17shyDefendant Petersens Demurrer To Complaint
5
10
15
20
25
1 cause of the Citys own financial predicament and did not cause the City to decide to reduce the
2 SDPOAs members benefits before the underlying lawsuits had even been filed
3 VI
4 CONCLUSION
As discussed above there are at least two reasons why this demurrer should be sustained
6 without leave to amend First the SDPOAs complaint and court records from the underlying
7 litigation firmly establish that the SDPOAs claim against defendant Petersen is barred by the
8 one year statute of limitations applicable to legal malpractice actions Second the SDPOAs
9 allegations also firmly establish that Petersen did not cause the SDPOA any damage as a matter
oflaw
11 For these reasons defendant Petersens demurrer to Plaintiffs complaint should be
12 sustained Moreover because no amendment will change this result this demurrer should be
13 sustained without leave to amend
14
DATED May 142010 SEDGWICK DETERT MORAN amp ARNOLD LLP
17
16
By1~~tra18 Gregory H Halliday
Frederick B Hayes 19 Attorneys for Defendant
GREGORY GLENN PETERSEN
21
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27
OC46299 I v I 8shyDefendant Petersens Demurrer To Complaint
5
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l3
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PROOF OF SERVICE
San Diego Police Officers Association v Jackson Deivfarco Tidus amp Peckenpaugh et al San Diego Superior Court Case No 37-2010-00088794-CU-PN-CTL
I am a resident of the State of California over the age of eighteen years and not a party to the within action My business address is Sedgwick Detert Moran amp Arnold LLP 3 Park Plaza 17th Floor Irvine California 92614middot8540 On May 142010 I served the within document(s)
DEFENDANT GREGORY GLENN PETERSENS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS COMPLAINT MEMORANDUM OF POINTS AND
AUTHORITIES
o FACSIMILEmiddot by transmitting via facsimile the document(s) listed above to the fax number(s) set forth on the attached Telecommunications Cover Page(s) on this date before 500 pm
MAILmiddot by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid in the United States mail at Irvine California addressed as set forth below
PERSONAL SERVICE - by personally delivering the document(s) listed above to the persltm(s) at the addressees) set forth below
o OVERNIGHT COURIER - by placing the document(s) listed above in a sealed envelope with shipping prepaid and depositing in a collection box for next day delivery to the person(s) at the addressees) set forth below via OverNite Express
SEE ATTACHED LIST
I am readily familiar with the finns practice of collection and processing correspondence for mailing Under that practice it would be deposited with the US Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business I am aware that on motion of the party served service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit
I declare under penalty of perjury under the laws of the State of California that the above is true and correct Executed on May 142010 at Irvine California
OCI463303v I
5
10
15
20
25
San Diego Police Officers Association v Jackson Ddvfarco Tidus amp Peckenpaugh et ai SDSC Case No 37-2010-00088794-CU-PN-CTL
2 ProofofService shy Page 2
3
4 I Michael A Conger Esq AhUUltys for Plaintiff Law Office of Michael A Conger San Diego Police Officers Association 16236 San Dieguito Road Suite 4-14 PO Box 9374 (858) 759-0200 - telephone
6 Rancho Santa Fe CA 92067 (858) 759-1906 facsimile congermike(aJaoLcom
7 Gregory A Long Esq Attorneys for Defendants
8 Sheppard Mullin Richter amp Hampton LLP Jackson DeMarco Tidus amp Peckenpaugh 333 S Hope Street 48 th Floor
9 Los Angeles CA 90071 (213) 617-5443 phone (213) 620-1398 - facsimile
Iglongsheppardmullincom
11 Matthew W Holder Esq
12 Sheppard Mullin Richter amp HamptonLLP 12275 EI Camino Real Suite 200
13 San Diego CA 92130-2006
14 ~ -
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19
21
22
23
24
26
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28
OC463303v I
Attorneys for Defendants Jackson DeMarco Tidus amp Peckenpaugh
(858) 720-8900 - phone (858) 509-3691 facsimile mholdersheppardmullincom
5
10
15
20
25
1 cause of the Citys own financial predicament and did not cause the City to decide to reduce the
2 SDPOAs members benefits before the underlying lawsuits had even been filed
3 VI
4 CONCLUSION
As discussed above there are at least two reasons why this demurrer should be sustained
6 without leave to amend First the SDPOAs complaint and court records from the underlying
7 litigation firmly establish that the SDPOAs claim against defendant Petersen is barred by the
8 one year statute of limitations applicable to legal malpractice actions Second the SDPOAs
9 allegations also firmly establish that Petersen did not cause the SDPOA any damage as a matter
oflaw
11 For these reasons defendant Petersens demurrer to Plaintiffs complaint should be
12 sustained Moreover because no amendment will change this result this demurrer should be
13 sustained without leave to amend
14
DATED May 142010 SEDGWICK DETERT MORAN amp ARNOLD LLP
17
16
By1~~tra18 Gregory H Halliday
Frederick B Hayes 19 Attorneys for Defendant
GREGORY GLENN PETERSEN
21
22
23
24
26
27
OC46299 I v I 8shyDefendant Petersens Demurrer To Complaint
5
10
15
20
25
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l3
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28
PROOF OF SERVICE
San Diego Police Officers Association v Jackson Deivfarco Tidus amp Peckenpaugh et al San Diego Superior Court Case No 37-2010-00088794-CU-PN-CTL
I am a resident of the State of California over the age of eighteen years and not a party to the within action My business address is Sedgwick Detert Moran amp Arnold LLP 3 Park Plaza 17th Floor Irvine California 92614middot8540 On May 142010 I served the within document(s)
DEFENDANT GREGORY GLENN PETERSENS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS COMPLAINT MEMORANDUM OF POINTS AND
AUTHORITIES
o FACSIMILEmiddot by transmitting via facsimile the document(s) listed above to the fax number(s) set forth on the attached Telecommunications Cover Page(s) on this date before 500 pm
MAILmiddot by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid in the United States mail at Irvine California addressed as set forth below
PERSONAL SERVICE - by personally delivering the document(s) listed above to the persltm(s) at the addressees) set forth below
o OVERNIGHT COURIER - by placing the document(s) listed above in a sealed envelope with shipping prepaid and depositing in a collection box for next day delivery to the person(s) at the addressees) set forth below via OverNite Express
SEE ATTACHED LIST
I am readily familiar with the finns practice of collection and processing correspondence for mailing Under that practice it would be deposited with the US Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business I am aware that on motion of the party served service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit
I declare under penalty of perjury under the laws of the State of California that the above is true and correct Executed on May 142010 at Irvine California
OCI463303v I
5
10
15
20
25
San Diego Police Officers Association v Jackson Ddvfarco Tidus amp Peckenpaugh et ai SDSC Case No 37-2010-00088794-CU-PN-CTL
2 ProofofService shy Page 2
3
4 I Michael A Conger Esq AhUUltys for Plaintiff Law Office of Michael A Conger San Diego Police Officers Association 16236 San Dieguito Road Suite 4-14 PO Box 9374 (858) 759-0200 - telephone
6 Rancho Santa Fe CA 92067 (858) 759-1906 facsimile congermike(aJaoLcom
7 Gregory A Long Esq Attorneys for Defendants
8 Sheppard Mullin Richter amp Hampton LLP Jackson DeMarco Tidus amp Peckenpaugh 333 S Hope Street 48 th Floor
9 Los Angeles CA 90071 (213) 617-5443 phone (213) 620-1398 - facsimile
Iglongsheppardmullincom
11 Matthew W Holder Esq
12 Sheppard Mullin Richter amp HamptonLLP 12275 EI Camino Real Suite 200
13 San Diego CA 92130-2006
14 ~ -
16
17
18
19
21
22
23
24
26
27
28
OC463303v I
Attorneys for Defendants Jackson DeMarco Tidus amp Peckenpaugh
(858) 720-8900 - phone (858) 509-3691 facsimile mholdersheppardmullincom
5
10
15
20
25
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PROOF OF SERVICE
San Diego Police Officers Association v Jackson Deivfarco Tidus amp Peckenpaugh et al San Diego Superior Court Case No 37-2010-00088794-CU-PN-CTL
I am a resident of the State of California over the age of eighteen years and not a party to the within action My business address is Sedgwick Detert Moran amp Arnold LLP 3 Park Plaza 17th Floor Irvine California 92614middot8540 On May 142010 I served the within document(s)
DEFENDANT GREGORY GLENN PETERSENS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS COMPLAINT MEMORANDUM OF POINTS AND
AUTHORITIES
o FACSIMILEmiddot by transmitting via facsimile the document(s) listed above to the fax number(s) set forth on the attached Telecommunications Cover Page(s) on this date before 500 pm
MAILmiddot by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid in the United States mail at Irvine California addressed as set forth below
PERSONAL SERVICE - by personally delivering the document(s) listed above to the persltm(s) at the addressees) set forth below
o OVERNIGHT COURIER - by placing the document(s) listed above in a sealed envelope with shipping prepaid and depositing in a collection box for next day delivery to the person(s) at the addressees) set forth below via OverNite Express
SEE ATTACHED LIST
I am readily familiar with the finns practice of collection and processing correspondence for mailing Under that practice it would be deposited with the US Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business I am aware that on motion of the party served service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit
I declare under penalty of perjury under the laws of the State of California that the above is true and correct Executed on May 142010 at Irvine California
OCI463303v I
5
10
15
20
25
San Diego Police Officers Association v Jackson Ddvfarco Tidus amp Peckenpaugh et ai SDSC Case No 37-2010-00088794-CU-PN-CTL
2 ProofofService shy Page 2
3
4 I Michael A Conger Esq AhUUltys for Plaintiff Law Office of Michael A Conger San Diego Police Officers Association 16236 San Dieguito Road Suite 4-14 PO Box 9374 (858) 759-0200 - telephone
6 Rancho Santa Fe CA 92067 (858) 759-1906 facsimile congermike(aJaoLcom
7 Gregory A Long Esq Attorneys for Defendants
8 Sheppard Mullin Richter amp Hampton LLP Jackson DeMarco Tidus amp Peckenpaugh 333 S Hope Street 48 th Floor
9 Los Angeles CA 90071 (213) 617-5443 phone (213) 620-1398 - facsimile
Iglongsheppardmullincom
11 Matthew W Holder Esq
12 Sheppard Mullin Richter amp HamptonLLP 12275 EI Camino Real Suite 200
13 San Diego CA 92130-2006
14 ~ -
16
17
18
19
21
22
23
24
26
27
28
OC463303v I
Attorneys for Defendants Jackson DeMarco Tidus amp Peckenpaugh
(858) 720-8900 - phone (858) 509-3691 facsimile mholdersheppardmullincom
5
10
15
20
25
San Diego Police Officers Association v Jackson Ddvfarco Tidus amp Peckenpaugh et ai SDSC Case No 37-2010-00088794-CU-PN-CTL
2 ProofofService shy Page 2
3
4 I Michael A Conger Esq AhUUltys for Plaintiff Law Office of Michael A Conger San Diego Police Officers Association 16236 San Dieguito Road Suite 4-14 PO Box 9374 (858) 759-0200 - telephone
6 Rancho Santa Fe CA 92067 (858) 759-1906 facsimile congermike(aJaoLcom
7 Gregory A Long Esq Attorneys for Defendants
8 Sheppard Mullin Richter amp Hampton LLP Jackson DeMarco Tidus amp Peckenpaugh 333 S Hope Street 48 th Floor
9 Los Angeles CA 90071 (213) 617-5443 phone (213) 620-1398 - facsimile
Iglongsheppardmullincom
11 Matthew W Holder Esq
12 Sheppard Mullin Richter amp HamptonLLP 12275 EI Camino Real Suite 200
13 San Diego CA 92130-2006
14 ~ -
16
17
18
19
21
22
23
24
26
27
28
OC463303v I
Attorneys for Defendants Jackson DeMarco Tidus amp Peckenpaugh
(858) 720-8900 - phone (858) 509-3691 facsimile mholdersheppardmullincom