Engel v. Pech ( 2023 )


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  • Filed 10/19/23 (unmodified opn. attached)
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION TWO
    JASON ENGEL et al.,                        B324560
    Plaintiffs and Appellants,          (Los Angeles County
    Super. Ct. No.
    v.                                  22STCV06062)
    RICHARD PECH,                              ORDER MODIFYING
    OPINION AND DENYING
    Defendant and                         REHEARING
    Respondent.
    NO CHANGE IN THE
    JUDGMENT
    THE COURT:
    It is ordered that the opinion filed herein on September 28, 2023,
    be modified as follows:
    1. On page 21, line 4, immediately after the sentence ending
    with “Engel’s malpractice claims were properly dismissed”
    add as footnote 4 the following footnote:
    4     Although the focus of Engel’s briefs was the
    potential malpractice claim, Engel’s petition for
    rehearing argues that Engel still has viable claims
    for breach of contract and breach of fiduciary duty.
    He is wrong. In the operative complaint, Engel
    alleges that Pech breached the retainer agreement
    and his fiduciary duty by (1) committing malpractice;
    and (2) charging fees that, due to his malpractice,
    were excessive. As described above, however, any
    damages arising from malpractice belong to the LLP,
    not Engel, and Engel’s payment of fees does not
    otherwise transfer ownership of the LLP’s
    malpractice claim (or the damages it may have
    suffered) to Engel. No amendment can cure these
    defects.
    *     *     *
    There is no change in the judgment.
    Appellant’s petition for rehearing is denied.
    ——————————————————————————————
    ASHMANN-GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J.
    2
    Filed 9/28/23 (unmodified opinion)
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION TWO
    JASON ENGEL et al.,                          B324560
    Plaintiffs and Appellants,            (Los Angeles County
    Super. Ct. No.
    v.                                    22STCV06062)
    RICHARD PECH,
    Defendant and
    Respondent.
    APPEAL from a judgment of the Superior Court of Los
    Angeles County, Maureen Duffy-Lewis, Judge. Affirmed.
    Parker Shaffie and David B. Parker for Plaintiffs and
    Appellants.
    Richard Pech, in pro. per., for Defendant and Respondent.
    ******
    A limited liability partnership and one of its partners
    retained a lawyer but limited the scope of representation to
    having the lawyer represent the partnership in a specific, ongoing
    case. After the partnership lost the case, the partner sued the
    lawyer for malpractice. In an amended complaint, the
    partnership was added as a plaintiff. The partner’s complaint
    was filed before the statute of limitations ran; the amendment
    was filed after. This case thus presents two questions: (1) Do
    the partnership’s malpractice claims “relate back” to the timely
    filing of the partner’s malpractice claims (such that the
    partnership may continue as a plaintiff); and (2) May the partner
    continue to press his timely claims for malpractice against the
    lawyer, when the lawyer’s sole task was to represent the
    partnership in the ongoing case? We conclude that the answer to
    both questions is “no.” An amendment adding a new plaintiff will
    not relate back to a prior complaint if the new plaintiff is
    “enforc[ing] an independent right” that imposes a “‘wholly
    distinct and different legal obligation against the defendant’”
    (Bartalo v. Superior Court (1975) 
    51 Cal.App.3d 526
    , 533, italics
    omitted (Bartalo); Branick v. Downey Savings & Loan Assn.
    (2006) 
    39 Cal.4th 235
    , 243 (Branick)). Because the partnership’s
    malpractice claims against the lawyer are distinct from—and in
    addition to—the partner’s malpractice claim, the partnership’s
    claims do not relate back and are untimely. And because the
    scope of the lawyer’s representation was to represent solely the
    partnership in the ongoing case, only the partnership has
    potentially viable claims for malpractice; those claims belong to—
    and any damages were suffered by—the partnership. As a result,
    the partner has suffered no damages as a matter of law. Thus,
    2
    the trial court properly sustained a demurrer to the amended
    complaint as to both plaintiffs. We accordingly affirm.
    FACTS AND PROCEDURAL BACKGROUND
    I.     Facts
    A.    The plaintiffs
    Jason Engel (Engel) is a forensic accountant. He is “the
    principal” of Engel & Engel, LLP (the LLP), a limited liability
    partnership.
    B.    The prior litigation
    In 2014, the LLP was retained by three investors who were
    in the midst of suing the people who solicited them to make that
    investment. The investors did not pay the full amount the LLP
    billed for accounting services.
    The LLP initiated an arbitration against one of the
    investors (John and Judith DeLong, or the DeLongs), which
    netted the LLP an award of $27,100.13 in unpaid fees, along with
    attorney fees and costs (the DeLong arbitration).
    On May 18, 2016, the LLP subsequently sued a second
    investor (Wells Fargo Equipment Finance, Inc.), its attorney, and
    the attorney’s law firm (the Wells Fargo litigation). Following a
    bench trial in the fall of 2018, the trial court entered judgment
    against the LLP, finding that the current lawsuit was based on a
    factual theory inconsistent with the position the LLP had
    asserted in the DeLong arbitration, and hence was barred by the
    doctrine of judicial estoppel. We affirmed the judgment against
    the LLP, but modified the investors’ cost award. (Engel & Engel,
    LLP v. Shuck et al. (Nov. 4, 2021, B297421, B300755) [nonpub.
    opn.].)
    3
    C.     The retention and termination of attorney
    Richard Pech
    On September 21, 2018—more than two years after the
    LLP initiated the Wells Fargo litigation but prior to trial—Engel
    and the LLP both signed an agreement retaining Richard Pech
    (Pech) “solely” “for legal representation” in the pending Wells
    Fargo “lawsuit.” While Engel signed both as a “client” and as a
    “partner” on behalf of the LLP, only the LLP (but not Engel) was
    a party to the Wells Fargo litigation and Pech’s “legal services”
    were explicitly “limited” to that “lawsuit.” The retainer
    agreement also prohibited any “side” agreements and required
    any modifications to be in “writing.”
    On February 25, 2021—after Pech filed an opening brief in
    the LLP’s appeal from the judgment in the Wells Fargo
    litigation—the LLP filed a substitution of counsel that
    terminated Pech’s representation.
    II.    Procedural Background
    A.     The original complaint
    On February 17, 2022, Engel—while representing
    himself—filed a complaint against Pech for (1) professional
    negligence, (2) breach of contract, and (3) breach of fiduciary
    duty. All of Engel’s professional negligence claims stem from
    Pech’s allegedly deficient representation during the Wells Fargo
    litigation; specifically, Engel alleges that Pech (1) “failed to
    conduct proper research, analysis and investigation” regarding a
    defense; (2) “failed to call” Wells Fargo’s attorney as a hostile
    witness to elicit damaging testimony; (3) “refused to comply” with
    one of the trial court’s procedural requests; (4) “declined” to
    “deliver” a closing argument at the bench trial; and (5)
    “repeatedly displayed a contemptuous attitude toward the trial
    4
    court throughout the three-day bench trial.” The breach of
    contract and breach of fiduciary duty claims similarly arise solely
    out of the Wells Fargo litigation; specifically, Engel alleges that
    Pech’s attempt to collect fees for his deficient representation
    amounted to breaches.
    Significantly, and contrary to the judicial opinions and
    retainer agreement attached as exhibits, the original complaint
    repeatedly but misleadingly alleges that Engel (rather than the
    LLP) was the party who initiated (and prevailed in) the DeLong
    arbitration as well as the party who prosecuted the Wells Fargo
    litigation.
    B.     The operative first amended complaint
    On April 21, 2022—one week after he retained counsel—
    Engel filed the first amended complaint. The amended complaint
    is identical to the original complaint, except that it (1) adds the
    LLP as a plaintiff, and (2) corrects the inaccuracies in the
    original complaint by noting that the LLP (not Engel) was the
    party who initiated (and prevailed in) the DeLong arbitration as
    well as the party who prosecuted the Wells Fargo litigation.
    C.     The demurrer is sustained
    Pech demurred to the first amended complaint on the
    grounds that (1) the LLP’s claims are barred by the one-year
    statute of limitations applicable to malpractice claims; and (2)
    Engel’s claims are barred because only the LLP, as Pech’s sole
    client in the Wells Fargo litigation, has standing to sue for
    malpractice arising out of that litigation.1 Engel and the LLP
    1     Pech also filed a motion to strike and a request for judicial
    notice in support of that motion. Engel and the LLP opposed the
    request, but the trial court never ruled on the motion or request.
    They are not at issue on appeal.
    5
    (collectively, plaintiffs) opposed the demurrer, responding that
    the LLP’s claims related back to the filing of Engel’s claims and
    that Engel had standing to sue for malpractice. After Pech filed a
    reply and the trial court held a hearing, the court sustained the
    demurrer without leave to amend.
    D.     Motion for reconsideration
    After the trial court issued its judgment of dismissal, Engel
    filed a motion for reconsideration along with a proposed second
    amended complaint. In the motion, Engel argued that he had
    standing to sue Pech because (1) he had an “oral agreement” with
    Pech in which Pech agreed he was litigating for the LLP “for the
    benefit of” Engel, and (2) Engel had an “implied attorney-client
    relationship” with Pech that Pech would “protect[]” Engel’s
    “interest in a successful recovery in the” Wells Fargo litigation.
    In the second amended complaint, plaintiffs added new
    allegations that Engel has an independent interest in the Wells
    Fargo litigation because (1) Engel, as “the principal and owner” of
    the LLP, “made all relevant decisions” regarding the Wells Fargo
    litigation; (2) Engel was the “sole beneficiary of any recovery”
    from the litigation; and (3) Engel was financing that litigation.
    After further briefing, the trial court denied the motion as
    untimely and without merit because the proffered second
    amended complaint did not “present any new allegations which
    could support the claim that . . . Engel was a client of Pech.”
    E.     Appeal
    Plaintiffs filed this timely appeal.2
    2     Although plaintiffs’ notice of appeal indicates that they
    appeal from both the dismissal order following the demurrer
    ruling and the ruling denying Engel’s motion for reconsideration,
    they raise no separate argument in their briefs regarding the
    6
    DISCUSSION
    Plaintiffs argue that the trial court erred in sustaining
    Pech’s demurrer to their first amended complaint without leave
    to amend.
    In assessing whether the trial court erred in this ruling, we
    ask two questions: “(1) Was the demurrer properly sustained;
    and (2) Was leave to amend properly denied?” (Shaeffer v. Califia
    Farms, LLC (2020) 
    44 Cal.App.5th 1125
    , 1134 (Shaeffer).) In
    answering the first question, “we ask whether the operative
    complaint ‘“states facts sufficient to constitute a cause of
    action.”’” (California Dept. of Tax & Fee Administration v.
    Superior Court (2020) 
    48 Cal.App.5th 922
    , 929 (Tax & Fee
    Administration); Loeffler v. Target Corp. (2014) 
    58 Cal.4th 1081
    ,
    1100; Code Civ. Proc., § 430.10, subd. (e).) In undertaking that
    inquiry, “we accept as true all ‘“‘“material facts properly
    pleaded”’”’” in the operative complaint (Tax & Fee
    Administration, at p. 929; Brown v. USA Taekwondo (2021) 
    11 Cal.5th 204
    , 209-210) as well as facts appearing in the exhibits
    attached to it, giving “‘“precedence”’” to the facts in the exhibits if
    they “‘“contradict the allegations”’” (Gray v. Dignity Health (2021)
    
    70 Cal.App.5th 225
    , 236, fn. 10; Brakke v. Economic Concepts,
    Inc. (2013) 
    213 Cal.App.4th 761
    , 767). In answering the second
    question, we ask “‘“whether ‘“‘there is a reasonable possibility
    that the defect [in the operative complaint] can be cured by
    amendment.’”’”’” (Shaeffer, at p. 1134.) We review the trial
    court’s ruling regarding the first question de novo (Rodas v.
    Spiegel (2001) 
    87 Cal.App.4th 513
    , 517; People ex rel. Harris v.
    Pac Anchor Transportation, Inc. (2014) 
    59 Cal.4th 772
    , 777), and
    reconsideration ruling and have accordingly abandoned their
    appeal from that ruling.
    7
    review its ruling regarding the second for an abuse of discretion
    (Branick, 
    supra,
     39 Cal.4th at p. 242).
    Because a demurrer is properly sustained if a claim is
    “‘necessarily[] barred’” by the applicable statute of limitations
    (Geneva Towers Ltd. Partnership v. City and County of San
    Francisco (2003) 
    29 Cal.4th 769
    , 781) or if a plaintiff is unable to
    establish an element of his claim as a matter of law (Wilson v.
    Parker, Covert & Chidester (2002) 
    28 Cal.4th 811
    , 826, partially
    superseded by statute on other grounds as stated in Hutton v.
    Hafif (2007) 
    150 Cal.App.4th 527
    , 547), the first step of assessing
    whether the demurrer in this case was properly sustained boils
    down to two questions: (1) Are the LLP’s claims time-barred,
    which turns on whether the untimely filing of the LLP’s claims
    relates back to the timely filing of Engel’s claims; and (2) Are any
    of Engel’s timely filed, malpractice-related claims viable?
    I.     Are the LLP’s Claims Time-Barred?
    A claim for legal malpractice (that is, a claim “whose merits
    necessarily depend on proof that an attorney violated a
    professional obligation in the course of providing professional
    services”) has a one-year statute of limitations—whether it
    sounds in tort or contract. (Code Civ. Proc., § 340.6, subd. (a); Lee
    v. Hanley (2015) 
    61 Cal.4th 1225
    , 1236-1237.) That limitations
    period begins to run when the attorney-client relationship ends,
    which happens when the attorney is “formally substituted out as
    counsel” or “‘“complet[es] the tasks for which [he was] retained.”’”
    (Michaels v. Greenberg Traurig, LLP (2021) 
    62 Cal.App.5th 512
    ,
    536; Nguyen v. Ford (2020) 
    49 Cal.App.5th 1
    , 13.) Because the
    LLP formally substituted Pech out as an attorney on February
    25, 2021, the LLP’s claims that were asserted for the first time in
    the first amended complaint are untimely because that amended
    8
    complaint was not filed until April 21, 2022—nearly two months
    after the one-year limitations period expired.
    Thus, whether the LLP’s malpractice-related claims were
    properly dismissed as untimely depends entirely on whether
    those claims “relate back” to Engel’s claims asserted in the timely
    filed complaint.
    As a general rule, subsequent amendments to a pleading
    will “relate back” to an earlier, timely filed pleading if they “(1)
    rest on the same general set of facts, (2) involve the same injury,
    and (3) refer to the same instrumentality, as the original
    [pleading].” (Norgart v. Upjohn Co. (1999) 
    21 Cal.4th 383
    , 408-
    409; Branick, 
    supra,
     39 Cal.4th at p. 244.) Subsequent
    amendments that might relate back encompass amendments
    adding new causes of action between previously named parties
    (San Diego Gas & Electric Co. v. Superior Court (2007) 
    146 Cal.App.4th 1545
    , 1549-1550 (San Diego Gas)), adding new
    defendants (ibid.; Barnes v. Wilson (1974) 
    40 Cal.App.3d 199
    ,
    201-202), and, as is pertinent here, adding new plaintiffs
    (Hutcheson v. Superior Court (2022) 
    74 Cal.App.5th 932
    , 940
    (Hutcheson) [“Relation back may apply to amendments that
    substitute a plaintiff”]; American Western Banker v. Price
    Waterhouse (1993) 
    12 Cal.App.4th 39
    , 49 [same]).
    However, when it comes to adding a new plaintiff, courts
    have refined the general rule: A new plaintiff’s claims relate
    back to claims asserted in a previously and timely filed complaint
    if the new plaintiff is seeking to enforce the same right as a
    previously named plaintiff (because, in that case, the amendment
    relies on the same general set of facts, involves the same injury,
    and refers to the same instrumentality of the defendant’s
    conduct). (Klopstock v. Superior Court (1941) 
    17 Cal.2d 13
    , 16-21
    9
    (Klopstock) [amendment to a derivative action in a corporation’s
    name that substitutes a new plaintiff relates back because the
    relief “sought on behalf of the corporation [entails] . . . exactly the
    same liability” as previously alleged]; Pasadena Hospital Assn.,
    Ltd. v. Superior Court (1988) 
    204 Cal.App.3d 1031
    , 1034-1037
    (Pasadena Hospital) [amendment adding the prior plaintiff’s
    professional corporation as a new plaintiff to a defamation
    lawsuit against a defendant who defamed the plaintiff relates
    back because “the resulting harms to [the plaintiff] and [his
    professional] corporation”—because damage was to their
    reputation, which was inseparable between the two—“do not
    appear to be distinct”]; Bank of America v. Superior Court (1973)
    
    35 Cal.App.3d 555
    , 556-557 [amendment correcting an error in
    one word of the new plaintiff’s three-word corporate name in a
    check forgery claim relates back because the claim is the same
    and because the check with the plaintiff’s correct name was
    attached to the original complaint].) This is why amendments
    that do no more than swap in a new plaintiff for an existing cause
    of action—when the new plaintiff is the real party in interest and
    the original plaintiff was not—typically relate back. (Cox v. San
    Joaquin Light & Power Corp. (1917) 
    33 Cal.App. 522
    , 523-524
    [amendment swapping in decedent’s personal representative as
    plaintiff instead of decedent’s heir relates back]; California
    Gasoline Retailers v. Regal Petroleum Corp. (1958) 
    50 Cal.2d 844
    ,
    850-851 [amendment swapping in individual as plaintiff instead
    of business association relates back]; California Air Resources Bd.
    v. Hart (1993) 
    21 Cal.App.4th 289
    , 301 (Hart) [amendment
    swapping in State of California as plaintiff instead of state
    agency relates back]; Cloud v. Northrop Grumman Corp. (1998)
    
    67 Cal.App.4th 995
    , 1000, 1005 [amendment swapping in
    10
    bankruptcy trustee as plaintiff relates back]; see generally
    Garrison v. Board of Directors (1995) 
    36 Cal.App.4th 1670
    , 1678
    [amended complaint “‘by the right party’” relates back when it
    “‘restates the identical cause of action’”].)
    Conversely, a new plaintiff’s claims do not relate back if the
    new plaintiff is seeking to “enforce a[] right” “independent” of the
    right asserted by the previously named plaintiff(s). (Bartalo,
    supra, 51 Cal.App.3d at p. 533, italics omitted; Quiroz v. Seventh
    Ave. Center (2006) 
    140 Cal.App.4th 1256
    , 1264, 1278 (Quiroz).)
    This occurs when (1) the new plaintiff’s claims rest on a “wholly
    different legal liability or obligation” (that is, a “distinct” “cause
    of action”) “from that originally [alleged]” (Klopstock, supra, 17
    Cal.2d at p. 20 [claim does not relate back “where the effect of
    such amendment is to state ‘another and distinct cause of
    action’”]; Branick, 
    supra,
     39 Cal.4th at pp. 243-244; Pasadena
    Hospital, supra, 204 Cal.App.3d at p. 1035); (2) the new plaintiff’s
    claims entail a distinct injury (Quiroz, at p. 1279); or (3) the new
    plaintiff’s claims “‘impose greater liability upon the defendant’”
    than the original plaintiff’s claims (Quiroz, at p. 1278; Bartalo, at
    p. 533; Estrada v. Royalty Carpet Mills, Inc. (2022) 
    76 Cal.App.5th 685
    , 715, review granted June 22, 2022, S274340).
    (See Quiroz, at pp. 1278-1279 [amendment adding spouse as a
    plaintiff in her capacity as representative for the decedent in a
    survivor action does not relate back to prior complaint naming
    spouse as a wrongful death plaintiff because the two claims
    involve “different injur[ies]”]; Dominguez v. City of Alhambra
    (1981) 
    118 Cal.App.3d 237
    , 243 [same]; Bartalo, at p. 533
    [amendment adding injured person’s spouse as a plaintiff to
    assert a loss of consortium claim does not relate back to
    complaint alleging personal injury to person because the two
    11
    claims involve distinct injuries]; Shelton v. Superior Court (1976)
    
    56 Cal.App.3d 66
    , 74 [same].)
    At bottom, this refined, plaintiff-focused test is aimed at
    assessing whether adding the new plaintiff merely corrects a
    “‘misnomer in the description of the [plaintiff]’” or instead
    “interject[s] a new party into the litigation for the first time
    under the guise of a misnomer.” (Hart, supra, 21 Cal.App.4th at
    pp. 300-301; Stephens v. Berry (1967) 
    249 Cal.App.2d 474
    , 478.)
    This distinction seeks to harmonize competing policies. On the
    one hand, public policy favors liberal amendment of pleadings in
    order to effectuate the resolution of lawsuits on their merits if the
    party being sued has timely notice of its potential liability.
    (Branick, 
    supra,
     39 Cal.4th at p. 243; Pointe San Diego
    Residential Community, L.P. v. Procopio, Cory, Hargreaves &
    Savitch, LLP (2011) 
    195 Cal.App.4th 265
    , 277 (Pointe San Diego)
    [noting “‘strong policy in this state that cases should be decided
    on their merits’”]; Pointe San Diego, at p. 277 [“‘The policy behind
    statutes of limitations . . . to put defendants on notice of the need
    to defend against a claim . . . is satisfied when recovery under an
    amended complaint is sought on the same basic set of facts as the
    original pleading’”].) On the other hand, public policy favors
    finality and repose once a limitations period for a particular
    potential liability has passed. (Bartalo, supra, 51 Cal.App.3d at
    p. 534 [“Once the statute of limitation has passed as to other
    possible plaintiffs, a defendant is entitled to dismiss them from
    his considerations”].)
    Applying this law, we conclude that the malpractice claims
    brought by the LLP do not relate back to the timely filing of the
    malpractice claims brought by Engel because Pech’s “legal
    liability or obligation” to the LLP is “different” and “distinct” from
    12
    his “legal liability or obligation” to Engel. To begin, the retainer
    agreement that is the sole basis for any malpractice liability in
    this case explicitly identifies two “clients”—the LLP and Engel as
    an individual. That is because Engel signed the agreement both
    as a representative for the LLP and also in his individual
    capacity as a “client.” Thus, there are two potential sets of
    malpractice claims—one owned by the LLP, and another owned
    by Engel.3 (Borissoff v. Taylor & Faust (2004) 
    33 Cal.4th 523
    ,
    529 [liability for malpractice “normally” runs “to the client with
    whom the attorney stands in privity of contract”]; Stine v.
    Dell’Osso (2014) 
    230 Cal.App.4th 834
    , 840 [same].) (Whether
    any such claim by Engel is unviable as a matter of law is a
    separate question we confront in section II of the Discussion.)
    What is more, the LLP is “an entity distinct” from Engel himself
    3      We accordingly disagree with the trial court’s finding—
    implicit in its dismissal of Engel’s claims without elaborating on
    the basis—that Engel lacked standing to pursue his otherwise
    timely filed malpractice claims. As a “client” under the retainer
    agreement, Engel, as an individual, stands in privity of contract
    and, as discussed in the text above, has standing to sue for
    malpractice. We consequently reject Pech’s argument that we
    may sidestep examination of the relation-back question because
    Engel—as the originally named plaintiff—never had standing
    both (1) because Engel did have standing, and (2) because an
    original plaintiff’s lack of standing is not, in any event, a bar to
    adding a new plaintiff if the test for relation back is otherwise
    satisfied. (River’s Side at Washington Square Homeowners Assn.
    v. Superior Court (2023) 
    88 Cal.App.5th 1209
    , 1239 [“‘[A] named
    plaintiff’s lack of standing at the beginning of an action is not
    necessarily fatal to continuation of the action’”]; San Diego Gas,
    supra, 146 Cal.App.4th at p. 1550 [same]; Branick, 
    supra,
     39
    Cal.4th at pp. 243, 244 [rejecting argument that lack of standing
    is fatal to amendment].)
    13
    (Corp. Code, § 16201 [“[a limited liability] partnership is an
    entity distinct from its partners”]), and this distinctness includes
    the LLP’s right and ability to sue in its own name (id., § 16307,
    subd. (a); Code Civ. Proc., § 369.5, subd. (a)). As a result, Pech
    owes each Engel and the LLP a separate “legal liability or
    obligation” to perform competently the services for which he was
    retained, and each therefore owns its own potential malpractice
    claims against Pech. Engel himself seems to recognize this: The
    amended complaint did not replace Engel as an individual with
    the LLP, as it would if the LLP were merely stepping into Engel’s
    shoes as a plaintiff; instead, the complaint added the LLP as a
    second plaintiff, because Engel and the LLP stand in different
    shoes. Because, and as explained more fully below, the scope of
    Pech’s retention—and hence his duties—was “limited” solely to
    the pending Wells Fargo litigation involving the LLP, and
    because any damages resulting from deficient representation in
    that litigation accordingly were suffered only by the LLP (and
    none by Engel, who was not a party to that litigation), adding the
    LLP as a plaintiff also risks “impos[ing] greater liability upon”
    Pech. Plaintiffs asserted at oral argument that Pech’s liability to
    the LLP was “coextensive” with (and, ostensibly, no different
    from) his liability to Engel as an individual, such that a trier of
    fact’s sole duty would be to “allocate” damages between the two.
    We reject this argument because it incorrectly conflates Pech’s
    liability to the LLP for malpractice with his liability to Engel as
    an individual; as noted above, that liability is distinct.
    Our conclusion is consistent with the analysis—and the
    conclusion—set forth in Diliberti v. Stage Call Corp. (1992) 
    4 Cal.App.4th 1468
     (Diliberti). There, two sisters were involved in
    a car crash; one was injured, the other was not. The uninjured
    14
    sister filed a timely lawsuit against the driver at fault. That
    sister later sought to amend her complaint to add the injured
    sister as a new plaintiff, but did so after the statute of limitations
    had run. The trial and appellate courts did not allow the
    amendment, reasoning that each sister had a distinct claim for
    damages, such that adding the new sister interjected a new
    plaintiff (with different and greater liability to the defendant)
    into the lawsuit. This case before us is analogous: Both Engel
    and the LLP have distinct potential claims for malpractice, so it
    is equally inappropriate to add the injured party (the LLP) to the
    lawsuit after the limitations period has run merely because the
    uninjured party (Engel) had previously filed a timely claim.
    Plaintiffs’ chief response is that Engel’s original complaint
    put Pech on notice of his liability for malpractice arising out of
    the Wells Fargo litigation. Because “the most important
    consideration” into “whether an amended complaint rests on the
    same general set of facts” for purposes of the relation-back
    doctrine “is whether the original pleading gave the defendant
    adequate notice of the claim” (Hutcheson, supra, 74 Cal.App.5th
    at p. 940; Pointe San Diego, supra, 195 Cal.App.4th at p. 280),
    plaintiffs continue, the LLP’s claims also arising out of Pech’s
    malpractice in the Wells Fargo litigation should relate back. We
    reject this argument because it conflates notice of potential
    liability to Engel with notice of potential liability to the LLP. The
    retainer agreement attached to the original complaint explicitly
    named both Engel and the LLP as clients, yet the original
    complaint (misleadingly) reported that Engel was the named
    party in the Wells Fargo litigation and Engel had suffered injury
    as a result. It nowhere referred to the LLP as a party-litigant in
    the Wells Fargo litigation who was itself seeking to vindicate its
    15
    own rights as a client under the agreement. The original
    complaint effectively said, “There are two possible plaintiffs, but
    only one of them is suing for malpractice.” The separateness of
    Pech’s potential liability for malpractice to Engel and Pech’s
    potential liability for malpractice to the LLP means that the two
    liabilities do not rest on the same general set of facts; notice of
    one is not synonymous with notice of the other.
    At bottom, plaintiffs seem to be suggesting that Pech
    should have known that Engel’s original complaint was wrong to
    name Engel as the plaintiff rather than the LLP. Diliberti
    implicitly rejected this “should have known” argument when it
    refused to let the injured sister join the lawsuit previously filed
    by the uninjured sister. We see no reason to part ways with
    Diliberti on this issue, particularly when it is well established
    that “the failure to comply with a statute of limitations cannot be
    excused on the ground of lack of prejudice” (which, here, would be
    the lack of prejudice to the party being sued possibly knowing of
    an error in naming the actually injured plaintiff). (San Diego
    Gas, supra, 146 Cal.App.4th at p. 1553; State Farm Fire &
    Casualty Co. v. Superior Court (1989) 
    210 Cal.App.3d 604
    , 612.)
    Because plaintiffs do not attempt to articulate any way to
    amend the complaint to avoid the time bar (and because we
    independently perceive no such way), we conclude that the trial
    court properly sustained the demurer to the LLP’s claims without
    leave to amend.
    II.    Can Engel State Viable Claims?
    A.     Does the first amended complaint state viable
    malpractice-related claims by Engel?
    Although, as noted above, Engel—as a party in privity with
    Pech under the retainer agreement—has standing to sue for
    16
    malpractice, we must next ask: Are Engel’s malpractice claims
    otherwise defective as a matter of law?
    We conclude they are. Liability for legal malpractice
    requires proof by the client-plaintiff that (1) the attorney owed a
    duty to the client “‘to use such skill, prudence and diligence as
    members of the profession commonly possess’”; (2) the attorney
    breached that duty; (3) the breach proximately caused the client’s
    injury; and (4) the client was damaged. (Wiley v. County of San
    Diego (1998) 
    19 Cal.4th 532
    , 536.) Damages in a malpractice
    lawsuit include (1) the amount the client paid the attorney
    (Simke, Chodos, Silberfeld & Anteau, Inc. v. Athans (2011) 
    195 Cal.App.4th 1275
    , 1288); and (2) the difference between what the
    client would have obtained had the lawyer’s representation been
    competent and what the client actually obtained (Merenda v.
    Superior Court (1992) 
    3 Cal.App.4th 1
    , 12, disapproved on other
    grounds by Ferguson v. Lieff, Cabraser, Heimann & Bernstein
    (2003) 
    30 Cal.4th 1037
    , 1053).
    The allegations in the operative complaint as well as the
    attached exhibits show, as a matter of law, that the only entity to
    have suffered damages attributable to Pech’s alleged malpractice
    is the LLP, not Engel. Although both Engel and the LLP signed
    the retainer agreement as clients, that agreement explicitly
    “limit[s]” Pech’s duties to “legal representation” in the pending
    Wells Fargo litigation. But only the LLP was a party to that
    litigation; Engel never was. Because the malpractice alleged in
    the operative complaint is also explicitly limited to deficiencies in
    Pech’s representation during the Wells Fargo litigation, the only
    entity that could have suffered damages as a result of that
    malpractice was the LLP, not Engel. What is more, because the
    LLP’s potentially viable claims for malpractice are a type of
    17
    property (Potter v. Alliance United Ins. Co. (2019) 
    37 Cal.App.5th 894
    , 907; Schauer v. Mandarin Gems of Cal., Inc. (2005) 
    125 Cal.App.4th 949
    , 956), and because “[p]roperty acquired by a
    [limited liability] partnership is property of the partnership and
    not of the partners individually” (Corp. Code, § 16203; Bartlome
    v. State Farm Fire & Casualty Co. (1989) 
    208 Cal.App.3d 1235
    ,
    1240 (Bartlome) [although limited liability partnerships are a
    type of “‘hybrid’ organization that is viewed as an aggregation of
    individuals for some purposes, and as an [independent] entity for
    others,” “a partnership is viewed as an [independent] entity . . .
    with respect to ownership of property”]), the LLP’s malpractice
    claims belong solely to the LLP, and not to Engel. (Accord,
    Wallner v. Parry Professional Bldg., Ltd. (1994) 
    22 Cal.App.4th 1446
    , 1449 [“When a partnership has a claim, the real party in
    interest is the partnership and not an individual member of the
    partnership”].) Consequently, Engel cannot establish he was
    damaged by Pech’s malpractice, such that Engel’s malpractice
    claims fail as a matter of law.
    Engel resists this conclusion with what boils down to three
    arguments.
    First, Engel argues that he has a viable malpractice claim
    against Pech because he is an “intended beneficiary” of the
    retainer agreement between Pech and the LLP. Because Engel’s
    arguably greater status as a signatory to the retainer agreement
    does not compensate for the fact that the damages attributable to
    any malpractice belong to the LLP and not him, his lesser status
    as an intended beneficiary—even if we assume him to have that
    status—is also not enough. Indeed, were we to accept Engel’s
    argument, we would effectively permit an individual partner to
    step into a limited liability partnership’s shoes by the simple
    18
    expedient of labeling himself an “intended beneficiary”; in so
    doing, we would effectively eliminate the otherwise clear—and
    statutorily mandated—line between property owned by a limited
    liability partnership and property owned by the partnership’s
    individual partners, as well as effectively authorize a transfer of
    the malpractice claims from the LLP to Engel in violation of the
    general rule prohibiting such transfers (Curtis v. Kellogg &
    Andelson (1999) 
    73 Cal.App.4th 492
    , 504 [such claims are
    generally not assignable]; cf. White Mountains Reinsurance Co. of
    America v. Borton Petrini, LLP (2013) 
    221 Cal.App.4th 890
    , 909
    [such assignment may be permissible as part of a sale of all
    assets]).
    Second, Engel argues that the LLP’s malpractice claims
    effectively belong to him because he was the one speaking with
    Pech on the LLP’s behalf and paying its legal bills. We are
    unpersuaded. An LLP—as an incorporeal entity—must
    communicate with its lawyer through someone, and the fact of
    that communication does not itself make the communicator a
    concurrent owner of the LLP’s malpractice claims (see Zenith Ins.
    Co. v. O’Connor (2007) 
    148 Cal.App.4th 998
    , 1009 (Zenith)), let
    alone transfer any resulting malpractice claim belonging to the
    LLP to the communicator. For much the same reason, the
    payment of attorney fees also does not transfer ownership of the
    malpractice claims. (Ibid.) Consistent with this analysis, claims
    for malpractice suffered by a partnership must be brought by the
    partnership, and not by the individual partners. (Mayer v. C.W.
    Driver (2002) 
    98 Cal.App.4th 48
    , 60 [so holding]; Tinseltown
    Video, Inc. v. Transportation Ins. Co. (1998) 
    61 Cal.App.4th 184
    ,
    199-200 [same]; Bartlome, supra, 208 Cal.App.3d at pp. 1239-
    1240 [same].)
    19
    Third, Engel argues that he should be able to sue
    individually because he—as the self-proclaimed “principal” of the
    LLP—will individually benefit if the LLP prevails in proving
    malpractice. Although counsel for a limited liability partnership
    can sometimes, depending on a variety of factors, be deemed to
    “represent” the individual partners (Wortham & Van Liew v.
    Superior Court (1987) 
    188 Cal.App.3d 927
    , 932-933; Johnson v.
    Superior Court (1995) 
    38 Cal.App.4th 463
    , 475-476; Responsible
    Citizens v. Superior Court (1993) 
    16 Cal.App.4th 1717
    , 1732-
    1733), this potential for an attorney-client relationship running
    between the partnership’s counsel and the individual partner
    does not mean that those individual partners own the
    partnership’s property—including its potential claims for
    recovery—simply because those partners may eventually benefit
    financially from how the partnership uses that property. The law
    is to the contrary. (O’Flaherty v. Belgum (2004) 
    115 Cal.App.4th 1044
    , 1062 [claims owned by receiver for a partnership belong
    solely to the receiver, not individual partners]; Sausser v.
    Barrack (1954) 
    123 Cal.App.2d Supp. 948
    , 950 [money owed to a
    partnership did not “belong” to partners “individually”]; Swanson
    v. Siem (1932) 
    124 Cal.App. 519
    , 528 [same].) Indeed, “to allow a
    [partner] to sue on his own behalf” (as Engel suggests) “would
    run the risk of double recovery—once to the [partner] and once to
    the [partnership].” (Vinci v. Waste Management, Inc. (1995) 
    36 Cal.App.4th 1811
    , 1815 [applying this principal to shareholders
    of a corporation].) And because partnerships by definition have
    at least two partners (see Corp. Code 16101, subd. (a)(9) [defining
    "partnership" to mean two or more partners]), the risk here is of
    at least triple recovery.
    20
    For these reasons, we conclude as a matter of law that
    Engel has suffered no damage as a result of Pech’s alleged
    malpractice to the LLP during the Wells Fargo litigation, and
    that Engel’s malpractice claims were properly dismissed.
    B.     Can Engel amend the complaint to state a claim
    on his own behalf for malpractice?
    Given that all damages for any malpractice claims were
    suffered by and belong to the LLP, there is no “reasonable
    possibility” that Engel can amend the complaint to state a viable
    malpractice claim.
    Engel offers two sets of arguments to the contrary.
    First, Engel argued in his motion for reconsideration that
    he can amend the complaint to state that (1) he had an “oral
    agreement” with Pech that Pech “would pursue the [Wells Fargo
    litigation] for the benefit of . . . Engel based on . . . Engel’s
    commitment to pay the legal fees,” and (2) he had an “implied
    attorney-client relationship whereby . . . Engel had an actual and
    reasonable expectation that Pech would protect[] his interest in a
    successful recovery in the underlying [litigation].” These
    proposed amendments would not cure the defects in Engel’s
    pleading. To begin, these allegations are little more than an end
    run around the legal principles stated above—namely, they allege
    that Engel’s payment of the attorney fees and expectation of a
    payout somehow transfer ownership of the LLP’s malpractice
    claims to him. As explained above, they do not. What is more,
    both of these proposed amendments are flatly foreclosed by the
    terms of the retainer agreement, which prohibit all “side”
    agreements not memorialized in writing—whether “oral” or
    “implied.” Because “implied” agreements are grounded in the
    parties’ mutual intent (Zenith, supra, 148 Cal.App.4th at p.
    21
    1010), no implied agreement could be consistent with the parties’
    express mutual intent in the retainer agreement to not have
    unwritten, “implied” agreements.
    Second, Engel alleged in the proposed second amended
    complaint that he had an interest in the Wells Fargo litigation
    prosecuted by the LLP because he “made all relevant decisions”
    for the LLP regarding that lawsuit, he was the “sole beneficiary
    of any recovery,” and he was “financing” that lawsuit personally.
    These allegations do not cure the defects in the complaint for the
    same reasons the arguments he makes in his reconsideration
    motion fail: They do nothing more than allege legal conclusions
    contrary to the governing law (and to which we owe no deference)
    (Berry v. State of California (1992) 
    2 Cal.App.4th 688
    , 691
    [“conclusions of law are not binding on a court reviewing a
    demurrer”]; Today’s IV, Inc. v. Los Angeles County Metropolitan
    Transportation Authority (2022) 
    83 Cal.App.5th 1137
    , 1169
    [“conclusion[s] of law” are “to be disregarded”]), and they seek to
    blur the otherwise clear distinction between claims owned by an
    LLP and claims owned by individual partners.
    22
    DISPOSITION
    We affirm the judgment. Pech is entitled to his costs on
    appeal.
    CERTIFIED FOR PUBLICATION.
    ______________________, J.
    HOFFSTADT
    We concur:
    _________________________, Acting P. J.
    ASHMANN-GERST
    _________________________, J.
    CHAVEZ
    23
    

Document Info

Docket Number: B324560M

Filed Date: 10/19/2023

Precedential Status: Precedential

Modified Date: 10/19/2023