v. ) POINTS AND AUTHORITIES IN

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1 MICHAEL A. CONGER, ESQUIRE (State Bar No. 1) LAW OFFICE OF MICHAEL A. CONGER San Dieguito Road, Suite -1 Mailing: P.O. Box Rancho Santa Fe, California Telephone: () -00 Facsimile: () -0 Attorneys for Plaintiff San Diego Police Officers Association SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO. SAN DIEGO POLICE OFFICERS.) CASE NO: ASSOCIATION, ) CU-PN-CTL ) Plaintiff, ) ) PLAINTIFF'S MEMORANDUM OF v. ) POINTS AND AUTHORITIES IN ) OPPOSITION TO DEMURRER OF JACKSON, DeMARCO, TIDUS & ) GREGORY GLENN PETERSEN PECKENPAUGH; A LAW CORPORATION, ) GREGORY GLENN PETERSEN, an individual, ) MOHAMED ALIM AHMAD MALIK, an ) Date: July, individual, and DOES 1-0, ) Time: :00 a.m. ) Judge: Hon. Ronald S. Prager Defendants. ) Dept: C-1 ) Complaint Filed: March, ) Trial Date: February, Plaintiff s Memorandum of Points and Authorities in Opposition to Demurrer ofgregory Glenn Petersen

2 TABLE OF CONTENTS L INTRODUCTION... 1 II. STATEMENT OF MATERIAL FACTS... 1 III. A GENERAL DEMURRER TESTS THE LEGAL SUFFICIENCY OF THE FACTUAL ALLEGATIONS IN A COMPLAINT TO STATE A CAUSE OF ACTION... IV. THE SDPOA HAS ALLEGED THE FOUR ELEMENTS OF A CAUSE OF ACTION FOR PROFESSIONAL NEGLIGENCE: (1) DUTY; () BREACH; () PROXIMATE CAUSE; AND () ACTUAL LOSS OR DAMAGE... V. THE COMPLAINT IS NOT TIMR BARRED ON ITS FACE (OR FROM :t\1atters OF WHICH THE COURT MAY PROPERLY TAKE JUDICIAL NOTICE)... A. The One ;Y ear Statute of Limitations Commenced When the SDPOA Discovered or. Should Have Discovered the Facts Essential to the Malpractice Claim and Suffered Appreciable and Actual Harm. from the Malpractice B.. The SDPOA Has Alleged It Suffered Appreciable Harm 1 as a Proximate Result ofthe Defendants' Negligent Acts and Omissions... ;......,... C. There Are No Alleged or Judicially-Noticeable Facts from Which 1 the Court May Ascertain the Date of Commencement ofthe Statute of Limitations... '.'... 1 D. Ifthe Date of Commencement of the State of Limitations Cannot 1 Be Ascertained, the Existence of Non-Existence of Tolling for Continuous Representation Is Irrelevant... E. Because the Date of the SDPOA's Discovery of Petersen's Malpractice and the Date that Petersen's Representation of the SDPOA Ceased Are Not Alleged and Are Not the Proper Subjects of Judicial Notice, the Affirmative Defense of the Statute of Limitations Cannot Be Decided by General Demurrer "... VI. CAUSATION IS AN ISSUE OF F ACT THAT MAY NOT BE DECIDED BY DEMURRER... A. The Causation Element of a Cause of Action for Negligence Is Ordinarily an Issue of Fact, Not Law... B. The Element of Causation in This Case Involves Numerous Issues of Fact, Not a Single Question of Law... 1 Plaintiff s Memorandum of Points and Authorities in Opposition to Demurrer of Gregory Glenn Petersen

3 C. The Holding of Federal Courts-That the Retirement Health Benefits ofsdpoa Members Are Not Vested-Is the Product of the Defendants' Malpractice; That Holding Is Not Entitled to Preclusive Effect Under the Doctrine of Collateral Estoppel in a Subsequent Legal Malpractice Case... 1 VIII. CONCLUSION Plaintiffs Memorandum ofpoints and Authorities in Opposition to Demurrer of Gregory Glenn Petersen

4 TABLE OF AUTHORITIES Cases Adams v. Paul () CaLth... Ambriz v. Kelegian (0) 1 CaLAppAth..., Arthur v. Santa Monica Dairy Co. (0) 1 CaLApp.d... Aubry v. Tri-City Hospital Dist. ' () CaLth... Beal Bank, SSB v. Arter & Hadden, LLP (0) Ca1.th Budd v. Nixen. (1)Ca1.dI... :... :... Coscia v. McKenna & Cuneo.. (01) CaLth 1...,, Fox v. Ethicon Endo-Surgery, Inc. (0) Ca1.th... :... lordache Enterprises, Inc. v. Brobeck, Phleger & Harrison () 1 Ca1.th... Lombardo v. Huysentruyt (01) 1 CaLAppAth... McGee v. Weinberg () Cal.App.d... Piscitelli v. Friedenberg (01) Cal.AppAth... 1 Ruffalo v. Patterson (1) CaLApp.d Samuels v. }v.fix (), Ca1.th 1..., San Diego Police Officers' Association v. San Diego City Employees' Retirement System (0) F.d... 1 Vasquez v. Residential Investments, Inc. (0) Cal.AppAth... Viner v. Sweet (0) 0 Ca1.th... 1 Plaintiffs Memorandum of Points and Authorities in Opposition to Demurrer of Gregory Glenn Petersen

5 Windham at Carmel Mountain Ranch Assn. v. Superior Court (0) Cal.App.th 1... Worton v. Worton (1) Cal.App.d 1... Wright v. Williams () Cal.App.d 0... Code ofcivil Procedure Statutes IV Plaintiffs Memorandum ofpoints and Authorities in Opposition to Demurrer of Gregory Glenn Petersen

6 I. INTRODUCTION This is an action for attorney malpractice brought by the San Diego Police Officers Association (the "SDPOA") against defendant Jackson, DeMarco, Tidus & Peckenpaugh ("JDTP") and one of its current attorneys, Mohamed Alim Ahmad Malik, as well as Gregory Glenn Petersen ("Petersen"), a former JDTP named partner attorney who also represented the SDPOA. Petersen has demurred on two grounds: (1) the action is time-barred under the statute of limitations (Petersen Demurrer ("Petersen Dem."), pp. -1) and () causation and damages cannot be established as a matter oflaw (id., pp. -1). His demurrer should be overruled because (1) the complaint is not time-barred on its face (or from matters ofwhich the court may properly take judicial notice), () in this case, as in most legal malpractice cases, causation is a question ofjact, not law; () the SDPOAhas adequately pleaded causation and damages; () the SDPOA is not precluded by any adjudication in San Diego Police Officers J Association v. San Diego City Employees J Retirement System ("SDPOA v. SDCERS') (th Cir. 0) F.d, from proving that such an adjudicati"on was itself the product of litigation malpractice; and () even if it were, the SDPOA has alleged legal malpractice committed in several other cases in which such an argument could not possibly apply. II. STATEMENT OF MATERIAL FACTS The SDPOA is a mutual benefit corporation organized and doing business as a State of California sanctioned employee organization representing police officers holding the rank of lieutenant and below who are employed by the City of San Diego. (Complaint, ~ 1.) From 0 through late 0, the defendant attorneys, including JDTP, Petersen and Malik, represented the SDPOA in several litigation matters, including SDPOA v. SDCERS, and McGuigan v. City oj San Diego, et al. (Complaint, ~.) As such, the defendants owed a duty to the SDPOA to use skill, prudence, and diligence as members ofthe legal profession commonly possess and exercise. (Complaint, ~.) The defendants breached their duty to the SDPOA by, among other things: I Plaintiffs Memorandum of Points and Authorities in Opposition to Demurrer of Gregory Glenn Petersen

7 (a) (b) (c) (d) maintaining and losing numerous objectively frivolous claims; failing to present sufficient evidence to prevail on the retiree health claim in SDPOA v. SDCERS, although such evidence existed, resulting in a reduction of retiree health benefits to SDPOA members; failing to perform as promised, despite numerous guarantees of success which were not fulfilled; failing to obtain a retention agreement with the SDPOA in violation of Business and Professions Code section 1; (e) charging the SDPOA unreasonable fees in violation of rule -0 ofthe Rules of Professional Conduct; (f) failing 'to communicate several written settlement offers in violation of rule (A)() ofthe Rules ofprofessional Conduct; 1 1 (g) (h) (i) failingto inform the SDPOA of Petersen's malpractice; failing to inform the SDPOA ofthe benefits and costs ofthe litigation undertaken by defendants; and failing to apprise [t]he SDPOA of material developments in the litigation in violation ofbusiness and Professions Code section 0, and affirmatively misrepresenting the outcome of several hearings to thesdpoa. (Complaint, ~.) 1 1 As a proximate result ofthe breaches ofduty by the defendants, the SDPOA has sustained damages, including in excess of$ 1 million in fees and costs paid to these defendants. (Complaint, ~.) 1 III. A GENERAL DEMURRER TESTS THE LEGAL SUFFICIENCY OF THE FACTUAL ALLEGATIONS IN A COMPLAINT TO STATE A CAUSE OF ACTION. "A demurrer tests the legal sufficiency offactual allegations in a complaint. [Citation.]" (Windham at Carmel Mountain Ranch Assn. v. Superior Court (0) Cal.AppAth 1,.) In ruling on demurrers, the court must "treat[] the demurrer as admitting all facts properly pleaded." (Aubry v. Tri-City Hospital Dist. () Ca1.th,; Fox v. Ethicon Endo- Surgery, Inc. (0) Ca1.th,.) "[I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory." (Aubry, supra; Fox, supra.) "And it is an abuse of discretion to sustain a demurrer without leave to amend ifthe plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment." (Aubry, supra; Fox, supra.) Plaintiffs Memorandum ofpoints and Authorities in Opposition to Demurrer of Gregory Glenn Petersen

8 IV. THE SDPOA HAS ALLEGED THE FOUR ELEMENTS OF A CAUSE OF ACTION FOR PROFESSIONAL NEGLIGENCE: (1) DUTY; () BREACH; () PROXIMATE CAUSE; AND () ACTUAL LOSS OR DAMAGE. The elements of a cause of action in tort for professional negligence are "(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; () a breach of that duty; () a proximate causal connection between the negligent conduct and the resulting injury; and () actual loss or damage resulting from the professional's negligence." (Buddv. Nixen (1) Ca1.d,0; Judicial Council of California, Civil Jury Instructions, No. 00.) Moreover, an attorney who holds himself out as a specialist has an even higher standard of care. (Wright v. Williams () CaLApp.d 0,.) In its complaint, the SDPOA pleaded the elements of a claim for legal malpractice, including duty (Complaint, ~~ -), breach of duty (id.,.~ ), causation (id., ~ ), and damages (id., ~ ). V. THE COMPLAINT IS NOT TIME-BARRED ON ITS FACE (OR FROM MATTERS OF WHICH THE COURT MAY PROPERLY TAKE JUDICIAL NOTICE). Defendant Petersen contends the complaint fails to state facts sufficient to constitute a cause of action (Defendant Gregory Glenn Petersen's Notice of Demurrer and Demurrer to Plaintiff's Complaint; Memorandum of Points and Authorities ("Petersen Dem."), pp. 1-) because it "is barred by Code ofcivil Procedure section 0., the one-year statute oflimitations applicable to a cause of action for legal malpractice" (id., p. : -1). "When a ground for objection to a complaint, such as the statute of limitations, appears on its face or from matters of which the court mayor must take judicial notice, a demurrer on that ground is proper." (Howe v. Bank ofamerica NA. (0) Cal.AppAth 1,.) However, this is not such a case, because it cannot be ascertained from the face ofthe complaint, or from the matters ofwhich the court may properly take judicial notice, when the SDPOA's cause of action for legal malpractice accrued, i.e., when the statute oflimitations commenced to run. In support ofhis demurrer, defendant Petersen requests the court to take judicial notice of several court records. (Request for Judicial Notice in Support of Defendant Gregory Glenn Plaintiffs Memorandum ofpoints and Authorities in Opposition to Demurrer of Gregory Glenn Petersen

9 Petersen's Demurrer to Plaintiffs Complaint ("Petersen RJN"), 1-.) He contends those court records "establish that [1] as of March, 0, the SDPOA had allegedly suffered actual injury, and [J its attorney-client relationship with Petersen terminated. Accordingly, as ofaiarch 0, the one-year statute oflimitations commenced to run." (Petersen Dem., p. : -1, italics added.) As the SDPOA will show, that argument is legally incorrect. The one-year statute of limitations does not commence to run when a client suffers actual injury; and it does not commence to run when an attorney-client relationship is terminated. It commences to run only when "the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission." (Code Civ. Proc., 0., subd. (a).) Because that date cannot be determined from either the face of the complaint or the documents of which judicial notice is requested, the demurrer is not well taken. If defendant Petersen contends the action is time barred, he must allege the statute of limitations as an affirmative defense and prove it. A. The One-Year Statute of Limitations Commenced When. the SDPOA Discovered or Should Have Discovered the Facts Essential to the Malpractice Claim and Suffered Appreciable and Actual Harm from the Malpractice. As noted above, "[t]he elements of a legal malpractice cause of action are '(1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; () a breach ofthat duty; () a proximate causal connection between the breach and the resulting injury; and () actual loss or damage resulting from the attorney's negligence. [Citation.]''' (Ambriz v. Kelegian (0) 1 Cal.AppAth, 1, quoting Coscia v. McKenna & Cuneo (01) Ca1.th 1, 1.) The SDPOA agrees that the applicable statute of limitations is set forth in Code of Civil Procedure section 0. ("section 0."), which provides in relevant part: (a) An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the 'wrongful act or omission, or four years from the date of the wrongful act or omission, Plaintiffs Memorandum of Points and Authorities in Opposition to Demurrer of Gregory Glenn Petersen

10 whichever occurs first.... [I]n no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist: (1) The plaintiff has not sustained actual injury. () The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred. () The attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney, except that this subdivision shall toll only the four-year limitation. (See Petersen Dem., pp. -.) "On its face,section 0. states 'two distinct and alternative limitation periods: one year after actual or constructive discovery, orfour years after occurrence (the date of the wrongful act or omission), whichever occurs first.' [Citations]." (Samuels v. Mix () Ca1.th 1,.) The period relied upon by defendant Petersen is the one-year period which commences on discovery, not the four-year period which commences on the occurrence ofthe breach of duty.. Under the statute and cases, a cause of action for legal malpractice accrues when (1) the client discovers or should discover the facts essential to the malpractice claim and () suffers appreciable and actual harm from the malpractice. (Samuels v. Mix. supra, Ca1.th at p..) It is the defendant's burden, not the plaintiff's burden, to prove "when the plaintiff discovered, or through the use of reasonable diligence should have discovered, the facts constituting the defendant's alleged malpractice." (ld at p..) The SDPOA has not alleged when it "discover[ed]... the facts constituting the wrongful act[s] or omission[s)" ( 0., subd. (a» ofdefendant Petersen. (Complaint for Attorney Malpractice ("Complaint"), passim.) If that date was within one year of the date the complaint was filed, March,, the action is not time-barred. ( 0., subd. (a).) Defendant Petersen does not request the court to take judicial notice of (1) the fact that the SDPOA did discover or () the fact that thesdpoa, "through the use ofreasonable diligence should have discovered, the facts constituting [his] wrongful act[s] or omission[s]" ( 0., subd. (a)(1), italics added) before March,0. He only asks the court to take judicial notice of certain judicial records. (Petersen RJN, pp. 1-.) Plaintiff s Memorandum ofpoints and Authorities in Opposition to Demurrer of Gregory Glenn Petersen

11 Even if the court could take judicial notice ofthe documents which defendant Petersen has requested, those documents do not establish the date of actual or constructive discovery, i.e., the date the statute oflimitations commenced. The documents are apparently offered to show (1) the date of the adverse appellate decision in it1cguigan v. City o/san Diego ("Jt1cGuigan"), Court of Appeal Case No. D00 (Petersen RJN, Exh. I)-September,0; and () the date when the United States District Court for the Southern District of California, in Abbe, et al. v. City a/san Diego, et ai., Case Nos. 0cv DMS (RBB) and 0cv H (POR), ordered all plaintiffs to sign substitution ofattorney forms designating their attorney of record as Gregory Petersen and the Petersen Law Firm, () Jackson, DeMarco, Tidus, Petersen & Peckenpaugh, or () someone else (Petersen RJN, Exh. )-Apri, 0. But neither of those dates establish when the SDPOA discovered "the facts constituting the wrongful act or omission." ( 0., subd. (a).) Obviously, the date ofexpiration of a statute of limitations cannot be ascertained ifthe date of commencement of the statute cannot be ascertained. Therefore, it was incumbent upon defendant Petersen to demonstrate-from the face of the complaint or matters of which the court may properly take judicial notice-when the SDPOA "discover[ed], or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission." ( 0., subd. (a).) Because he has not done so, his demurrer should be overruled. B. Tbe SDPOA Has Alleged It Suffered Appreciable Harm as a Proximate Result oftbe Defendants' Negligent Acts and Omissions. With regard to the fourth element of their cause of fiction, "actual loss or damage resulting from the attorney's negligence" (Coscia v. McKenna & Cuneo, supra, Ca1.th at p. 1), the SDPOA alleges that "[a]s a proximate result of the [defendants' alleged negligent acts and omissions], [it] has sustained damages, including in excess of$1 million in fees and costs paid to the defendants." (Complaint, ~, p. :-.) Because they did not allege when they suffered those damages, the date the SDPOA "sustained actual injury" ( 0., subd. (a)(1» is not apparent from the face of the complaint. Ifdefendant Petersen contends the SDPOA "sustained actual injury" ( 0., subd. Plaintiffs Memorandum of Points and Authorities in Opposition to Demurrer of Gregory Glenn Petersen

12 (a)(1» as a result ofhis negligence more than a year before the action was filed, he may allege that fact as an affirmative defense and attempt to prove it at trial. c. There Are No Alleged or Judicially-Noticeable Facts from Which the Court May Ascertain the Date of Commencement of the Statute of Limitations. Defendant Petersen argues that "the SDPOA suffered 'actual injury' when the underlying trial courts entered judgment against it in the underlying litigation matters" (Petersen Dem., p. :-, boldface and capitalization omitted.) However, even if the SDPOA suffered actual injury before March,0, the one-year statute of limitations does not commence to run until "the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission." ( 0., subd. (a)(1); Petersen Dem., p. :.. ["[d]iscovery for purposes of triggering the commencement ofthe limitations period under [s]ection 0. occurs When the client discovered or should have discovered the facts giving rise to a cause of action for legal malpractice"]') A plaintiffs knowledge of an adverse judicial decision (which itself is not sho,",'ll by the documents of which judicial notice is requested) is not equivalent to knowledge of"the facts constituting the wrongful act or omission" ( 0., subd. (a». Neither of the cases cited by defendant Petersen, lordache Enterprises, Inc.' v. Brobeck, Phleger & Harrison () 1 Cal.th and Adams v. Paul () Cal.th,1, fn. (Petersen Dem., pp. -), holds that the statute of limitations for litigation malpractice commences to run upon the entry of an adverse judicial decision or a client's knowledge of such a ruling. Those cases concerned the meaning of"actual injury" (lordache at p. ; Adams at pp. -), not imputed discovery.l Defendant Petersen argues "the SDPOA discovered the alleged injuries in December 0 and May 0" (Petersen Dem., p , boldface omitted and capitalization modified). (Id., pp. -1.) Apparently, he contends that a client's discovery of an adverse result in In lordache, "[t]he client acknowledged it discovered its attorneys' alleged malpractice more than one year before it commenced" the action. (lordache at p..) In Adams, the court "reaffirm[ed] that actual injury is generally a question of fact." (Adams at p..) Plaintiff s Memorandum of Points and Authorities in Opposition to Demurrer of Gregory Glenn Petersen

13 litigation commences the one-year statute oflimitations for lijigation malpractice. (Ibid.) However, neither ofthe cases he cites, l\lfcgee v. Weinberg () CaLApp.d and Worton v. Worton (1) Cal.App.d 1 (Petersen Der" p. ), supports that proposition, which is inconsistent with the language of sectioj 0., subdivision (a). Imputed knowledge of an adverse judicial ruling is not equivalent to knowledge of facts constituting legal malpractice. Needless to say, not all adverse judicial rulings are the result of legal malpractice. In the vast maj ori ty ofcases decided in ou1 system ofjustice, the losing parties, through no fault of their attorneys, are simply not entitled to prevail under the adjudicated i facts or applicable laws. In a small percentage of cases, the adverse ruling is a result of legal malpractice. Occasionally, adverse rulings can also be the res~t ofjudicial or jury error. A layperson cannot be presumed to know that any adverse judicjal decision was the result of legal malpractice. D. Ifthe Date of Commencement of the State JLimitations Cannot Be Ascertained, the Existence of Non-Existerce of Tolling for Continuous Representation Is Irrelevant.! Even though defendant Petersen has not established th date of commencement ofthe one-year statute oflimitations, he argues that the one-year sta~te of limitations was not tolled for continuous representation under section 0., subdivision (a)b), because "there is no dispute that [his] representation ofthe SDPOA terminated in March 0 when he left the JDTP law firm and ceased his representation of the SDPOA." (Petersen ~em., p. 1: -1). (ld., pp. 1 1.) I This "no tolling" argument is unavailing because it begs the question of when the statute of limitations commenced. While a substitution of attorneys 1ay bear on whether the statutory McGee was decided under a predecessor statute, former Code ofcivil Procedure i section, subdivision (1). ( CaLApp.d at p. 0.) I In Worton a legal malpractice action was time-~arred because undisputed evidence showed that, more than a year before the plaintiff sued, she was aware of facts showing that a prior judgment for dissolution of marriage was based upbn her former attorney's failure to discover and obtain evidence ofexcess assets in her former hu band's defined benefit pension plan. (Worton at p. 10.) Plaintiff s Memorandum of Points and Authorities in Opposition to pemurrer of Gregory Glenn Petersen i i

14 tolling provision for continuous representation ( 0., subd. (a)()) applies, it does not commence the statute oflimitations applicable to a cause of action for the undiscovered legal malpractice of the substituted attorney. Moreover, the documents sought to be judicially noticed do not establish that defendant Petersen "left the JDTP law firm and ceased his representation of the SDPOA" in March 0, as he argues. (Petersen Dem., p. 1:-1) Such a fact is not alleged by the SDPOA. (Complaint, passim,) The date ofhis departure from JDTP may be alleged and proved as part of an affirmative defense, but it cannot be assumed for the purpose of a general demurrer. Defendant Petersen contends "the present situation is somewhat analogous to Beai Bank, SSB v. Arter & Hadden, LLP (0) Ca1.th 0" (Petersen Dem., p. 1:-1). (Id., pp. 1 1.) In that case, the Supreme Court held that when an attorney leaves a firm an takes a client with him or her, the tolling provision of section 0., subdivision (a)(), does not continue for claims against the former firm and partners. (Beal Bank, SSB v. Arter & Hadden, LLP ("Beal Bank") (0) CaLth 0, 0.) Defendant Peterson urges that holding should be extended to apply to a materially different situation. Here, the SDPOA was represented by the defendant attorneys in several litigation matters, including SDPOA v. SDCERS and McGuigan v. City of San Diego, et ai. (Complaint, ~, p. :-.) Several individual attorneys employed by defendant Jackson, DeMarco, Tidus & Peckenpaugh may have worked on the SDPOA's litigation matter. Several of those attorneys, including defendant Petersen, may have left the firm. But there is no allegation that they took the SDPOA's matters with them. Defendant Petersen urges the court to hold that the tolling provision for continuous representation should cease to apply to the departing attorneys on the date they left the firm. For several reasons, the court cannot and should not decide any issue of tolling by demurrer. First, because the date of accrual ofthe SDPOA's legal malpractice action cannot even be ascertained from the face of the complaint, tolling of the statute of limitations is irrelevant at this early stage of the lawsuit. Second, the court has not even been requested to, and may not, take judicial notice of the fact that defendant Petersen "left the JDTP law firm and ceased his representation of the Plaintiffs Memorandum of Points and Authorities in Opposition to Demurrer of Gregory Glenn Petersen

15 SDPOA" in March 0. (Petersen Dem., p. 1:-1.) That unpleaded fact is the cornerstone of defendant Petersen's "no tolling" argument. Third, even if that fact had been alleged by the SDPOA, the facts of this case are materially different from those of Beal Bank. Wilen an attorney leaves a firm and takes a client with him or her, the client is well aware that he or she has no further attorney-client relation with the former firm and its attorneys. However, when an attorney leaves a firm and does not take a client with him or her, the client believes that he or she is still being represented by the firm and its attorneys. The client may not even know that an attorney who previously worked on his or her case has departed the firm..law firms frequently send out announcements to clients when new attorneys have joined as partners or associates. However, they rarely send out announcements to clients when former partners or associates have left the firm. Tpat is.. especially so if the reason for the attorney's departure was the mishandling of the client's case. The extension of Beal Bank proposed by defendant Petersen, in which the statute of limitations would resume upon an event (an attorney's departure from the firm) unknown to the client, would work a great hardship on unknowing victims of legal malpractice. It would disrupt "the balance the Legislature struck between a plaintiff s interest in pursuing a meritorious claim and the public policy interests in prompt assertion of known claims." (Beal Bank, supra, Ca1.th at p..) As the court well noted in Beal Bank: "attorneys have a fiduciary duty to disclose material facts to their clients, an obligation that includes disclosure of acts of malpractice [citation]." ( Ca1.th at p. 1.) Just as "[f]ormer counsel are powerless to control whether current counsel breach that obligation" (ibid.), current counsel are powerless to control whether former counsel breach that obligation. Here, there is no allegation that defendant Petersen or continuing counsel, As the court noted in Beal Bank, supra, Ca1.th at pp. -: "When a lawyer leaves a firm and takes a client with him, the firm's representation of the client ceases. There is no risk the firm will attempt to run out the clock on the statute of limitations by offering reassurances and blandishments about the state ofthe case. Conversely, the firm loses all ability to mitigate any damage to the client. [Citation.] Nor is there any ongoing firm-client relationship to disrupt." Plaintiff's Memorandum of Points and Authorities in Opposition to Demurrer of Gregory Glenn Petersen.

16 Jackson, DeMarco, Tidus & Peckenpaugh, ever advised the SDPOA that any act of malpractice had occurred. (Complaint,passim.) To the contrary, the SDPOA has alleged that JDTP, Petersen, and defendant Malik breached their duty to the SDPOA by "failing to inform the SDPOA of Petersen's malpractice." (Complaint, ~ (g), p.: 1; cf. 0., subd. (a)() [intentional concealment ofmalpractice tolls the four-year statute of limitations].) Under such circumstances, the continuous representation tolling provision ( 0., subd. (a)(» should not be limited as defendant Petersen proposes. E. Because the Date ofthe SDPOA'sDiscovery of Petersen's Malpractice and the Date that Petersen's Representation ofthe SDPOA Ceased Are Not Alleged and Are Not the Proper Subjects of Judicial Notice, the Affirmative Defense of the Statute of Limitations Cannot Be Decided by General Demurrer. If defendant Petersen contends that the SDPOA (1) "through the use ofreasona~le diligence should have discovered the facts constituting [his] wrongful act or omission" ( 0., subd. (a» and () his continuous representation of the SDPOA ceased more than a year 'before the action was filed, he must allege those facts as an affirmative defense and prove them at trial (Samuels v, Mix, supra, Ca1.th at p. ). They are not apparent from the face of the complaint or from matters of which the court may properly take judicial notice. VI. CAUSATION IS AN ISSUE OF FACT THAT MAY NOT BE DECIDED BY DEMURRER. Petersen contends the SDPOA has not pled, and cannot plead, facts in support ofthe causation and damages elements of a claim for legal malpractice. (Petersen Oem., pp. -1.) The parties agree that "[t ]he elements of a legal malpractice cause of action are '(1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; () a breach of that duty; () a proximate causal connection between the breach and the resulting injury; and () actual loss or damage resulting from the attorney's negligence. [Citation.]'" (Ambriz v. Kelegian, supra, 1 Cal.App.th at p. 1, quoting Coscia v. McKenna & Cuneo, supra, Ca1.th at p.1; Petersen Dem., p..) They also agree that in legal malpractice cases, a plaintiff "must show that butfor the alleged malpractice, it is more likely than not that the plaintiff would have obtained a more Plaintiffs Memorandum of Points and Authorities in Opposition to Demurrer of Gregory Glenn Petersen

17 favorable result." (Viner v. Sweet (0) 0 Ca1.th,1; Petersen Dem., p. 1.) However, the SDPOA strongly disagrees with the Petersen's contention that (1) causation is a question of law that may be decided by demurrer (Petersen Dem., p. 1:-) and () the SDPOA cannot establish that, but for the defendants' negligence, it would have obtained a more favorable outcome in San Police Officers' Association v. San Diego City Employees' Retirement System, et al. ("SDPOA v. SDCERS") Fd, -0 (Petersen Dem., pp. 1-1). Causation involves numerous issues of fact. (Sections VI(A)-(B), post.) And a prior adjudication is not entitled to preclusive effect in a later legal malpractice action. (Section VI(C), post.) A. The Causation Element of a Cause of Action for Negligence Is Ordinarily an Issue of Fact, Not Law. "In a negligence action the plaintiff must show the defendant's act or omission (breach of duty) was a cause of the plaintiffs injury. [Citation.] The element ofcausation generally' consists of two components.' [Citation.] The plaintiff must show (1) the defendant's act or omission was a cause infadof the plaintiff s injury, and () the defendant should be held responsible for negligently causing the plaintiffs injury. [Citation.] The second component," sometimes referred to as proximate causation, "is a normative or evaluative one that asks whether the defendant should owe the plaintiff a legal duty of reasonable care under the circumstances of the case. [Citation.]" (Vasquez v. Residential Investments, Inc. (Vasquez) (0) Cal.AppAth,, italics added.) "The first component of causation in fact generally is a question of/act for the jury. Causation in fact is shown if the defendant's act or omission is 'a substantial/actor' in bringing about the plaintiff's injury. [Citations.] This issue ordinarily may not be resolved on summary judgment" (Vasquez, supra, 1 CaLAppAth at p., italics added), much less by demurrer. It is not a question oflaw for the court. The issue is one oflaw only when the facts are undisputed and only one conclusion may be drawn. (Lombardo v. Huysentruyt (01) 1 Cal.AppAth,; Arthur v. Santa Monica Dairy Co. (0) 1 Cal.App.d,.) Plaintiff's Memorandum of Points and Authorities in Opposition to Demurrer of Gregory Glenn Petersen

18 Defendant Petersen contends: "The element of causation in a legal malpractice case is treated as an issue of law which (sic] the underlying litigation was decided on a question of law." (Petersen Dem., p. 1: -1.) However, the authorities he cites do not support his position. In Piscitelli v. Friedenberg (01) Cal.AppAth, the court reversed a judgment for the plaintiff entered after ajury trial in a legal malpractice case. The issue was whether the trial court had abused its discretion in permitting an expert to testify that the plaintiff would probably have prevailed had an arbitration been permitted to go forward. (Jd. at p..) The court held such evidence was inadmissible: "the [trial] court improperly shifted the jury's responsibility to decide the issue by permitting Piscitelli's expert to, in essence, testify that arbitrators would have granted Piscitelli monetary relief... had the matter been presented to them." (Id. at p..) The court did not hold that causation would have been a question of law in the underlying arbitration or that causation was a question of law in the legal malpractice action. B. The Element of Causation in This Case Involves Numerous Issues of Fact, Not a Single Question of Law. The allegations of the multiple breaches of Petersen's professional duty in multiple cases, including failing to inform the SDPOA of written settlement offers, misinforming the SDPOA regarding the outcome ofcourt ruling in order to encourage the SDPOA to continue paying fees (Complaint, ~, -) present numerous,jactual issues of causation, including without limitation: (1) whether the SDPOA would have litigated any issue of retiree health benefits had it been properly advised of the risks of such litigation; () whether the federal courts would have decided that retiree health benefits are not vested had the defendants exercised due care in presenting the available evidence and supporting legal argument; () whether an adverse adjudication should have been avoided by withdrawing the issue of retiree health benefits-an issue that was unwinnable as presented; () whether the defendants caused the SDPOA injury by charging unreasonable fees for negligently performed, harmful legal services; 1 Plaintiff s Memorandum of Points and Authorities in Opposition to Demurrer of Gregory Glenn Petersen

19 () whether the SDPOA should have opposed the $1 million lvfcguigan settlement without any evidence that the plaintiff class suffered greater damages that could have been proved at trial; () whether the SDPOA would have accepted settlement offers that were not even communicated, much less recommended, by the defendants; and () whether the SDPOA would have maintained the litigation if the outcomes of hearings had not been misrepresented by the defendants. c. The Holding of Federal Courts-That the Retirement Health Benefits ofsdpoa Members Are Not Vested-Is the Product of the Defendants' Malpractice; That Holding Is Not Entitled to Preclusive Effect Under the Doctrine of Collateral Estoppel in a Subsequent Legal Malpractice Case. Petersen also contends that the court in one ofthe underlying litigations"ruled as a matter ) '. oflaw [that retirement health benefit,s] were not vested." (Petersen Dem., p. 1:-.) Ifsuch an argument were correct, no plaintiff alleging litigation malpractice would ever be entitled to a proverbial "trial within a trial." To the extent Petersen is contending that the SDPOA is precluded from proving that the defendants' negligence was a cause of its alleged injury (Petersen Dem., pp. 1-1), he is mistaken for numerous reasons. The defendants in a legal malpractice action cannot shield themselves from liability by disputing causation based upon on the very adjudication that was the product of that malpractice. That is so whether the adjudication was based upon a negligent failure to introduce evidence to prove a critical fact or a negligent failure to cite persuasive legal authority on a question of law. Petersen, like his co-defendants JDTP and Malik, does not say what specific legal doctrine (e.g., res judicata, collateral estoppel, judicial estoppel, or law of the case) precludes such allegation and proof. As fully discussed by the SDPOA in Section V(C) of its opposition to the JDTP and Malik demurrers, incorporated herein, neither the doctrines of res judicata nor collateral estoppel apply. As the court well explained in Ruffalo v. Patterson (1) CaLApp.d 1,: "[the contention that] where an attorney's negligence has caused a court to make an erroneous adjudication of an issue, the fact that the court has made that adjudication 1 Plaintiff s Memorandum of Points and Authorities in Opposition to Demurrer of Gregory Glenn Petersen

20 absolves the attorney of all accountability and responsibility for his negligence... cannot be and is not the rule..." Petersen's position here is indistinguishable from the defendants' rejected position in Ruffalo. He contends that the federal court's adjudication in SDPOA v. SDCERS-that the retiree health benefits of San Diego Police Officers are not vested contractual rights-precludes the SDPOA from proving in this subsequent legal malpractice action that Petersen's negligence in that case caused an erroneous adjudication ofthat issue and resulting damages. In short, no adjudication made in SDPOA v. SDCERS can preclude the SDPOA from proving in this case that: (1) had Petersen exercised due care, the SDPOA (a) would never have raised any issue regarding the vesting of retiree health care benefits in SDPOA v. SDCERS (because the risk of such litigation outweighed th~ potential benefit) and (b) would have voluntarily dismissed that.. claim before an adverse adjudication; () the defendants negligently prosecuted the issue ofthe vesting ofretiree health benefits in that case; and () had Petersen exercised due care, the result would have been different and favorable. Petersen has failed even to address, much less meet, his burden of showing the threshold requirements ofcollateral estoppel, including an identity of issues and the actual litigation and necessary adjudication ofthe issue in the underlying action. Finally,Petersen argues "it is frivolous for [p ]laintiff to contend that the [d]efend ants should bear responsibility for the City's decision to amend its Municipal Code and impose an $,00 cap on annual retirement health benefits." (Petersen Dem., p. 1:-.) Because the SDPOA is not an employee entitled to receive retirement health benefits from the City, the SDPOA is not claiming damages that derive from the City's imposition of a cap on those benefits. Whether the plaintiffs in Ellis may do so has no bearing on the sufficiency of the SDPOA's complaint. VIII. CONCLUSION overruled. Based on the foregoing arguments and authorities, Petersen's demurrer should be lfthe Court perceives any defect in the SDPOA's complaint, it formally requests leave to amend. Plaintiffs Memorandum of Points and Authorities in Opposition to Demurrer of Gregory Glenn Petersen

21 Dated: July, LAW OFFICE OF MICHAEL A. CONGER By: Mic ael A. Conger Attorney for the San Association 1 Plaintiff s Memorandum of Points and Authorities in Opposition to Demurrer of Gregory Glenn Petersen