Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TC023364, William P. Barry, Judge.
Janel Buycks, in pro. per., for Plaintiff and Appellant.
Schneider Wallace Cottrell Brayton Konecky LLP, Todd M. Schneider, Guy B. Wallace and Andrew W. Lee for Defendants and Respondents.
TURNER, P. J.
I. INTRODUCTION
Plaintiff, Janel Buycks, appeals from a judgment sustaining the demurrer of defendants Todd Schneider, Guy Wallace, and Schneider Wallace Cottrell Brayton Konecky LLP (the law firm), without leave to amend. Mr. Schneider and Mr. Walker are principals in the law firm. The trial court ruled plaintiff’s professional negligence and fiduciary duty breach claims against her former attorneys were barred by res judicata principles and the statute of limitations. We affirm the judgment.
II. BACKGROUND
A. Class Action Against FedEx
Plaintiff worked at FedEx as a part-time freight handler from January 20, 2000 until February 6, 2002, when she was fired. Plaintiff alleges FedEx discriminated against her based on her sex and race, and wrongfully terminated her because of her complaints about sexual harassment and workplace safety issues. In November 2002, plaintiff was directed by a friend to a Web site that described an employment class action lawsuit against FedEx and provided contact information for the law firm.
Plaintiff contacted the law firm and spoke with a codefendant, Sheryl Harris, an attorney at the law firm. Plaintiff allegedly had 15 to 20 telephone conversations with Ms. Harris. The conversations principally concerned the sexual harassment plaintiff endured while working at FedEx and its retaliatory termination, while some discussions centered on race-based related issues. Ms. Harris helped plaintiff obtain a “right to sue” letter from the Department of Fair Employment and Housing. Plaintiff received the letter on February 6, 2003, and sent it to Ms. Harris. On April 10, 2003, Ms. Harris sent plaintiff a letter. The letter informed plaintiff that any class action would only include federal discrimination claims and she would need to take separate action to pursue any state causes of action. Plaintiff had a series of conversations with Ms. Harris. Plaintiff was told she would need to sign a retainer agreement. If plaintiff signed the retainer letter, she was told she would be represented by class counsel in her claims against FedEx.
Plaintiff alleges no one explained to her that there was a difference between her federal race discrimination claims and her sexual harassment and retaliatory termination causes of action. On May 13, 2003, plaintiff signed a retainer letter with class counsel, which included the law firm. On June 13, 2003, plaintiff signed a second retainer agreement with the law firm.
On November 10, 2003, plaintiff received a letter informing her that the class action claims had been amended and she was not one of the nine class representatives. The November 10, 2003 letter states in part: “The amended and consolidated complaint that we now propose to file will address race discrimination in four specific areas: (1) Initial assignments (whether you were assigned to part or full time when you first start at [FedEx])[;] (2) Promotion (including promotion to full-time positions and promotion to management)[;] (3) Equal compensation (different pay for same work, increased or more difficult job duties, reduced work hours and denial of overtime)[;] and (4) Differential discipline (discipline for infractions for which non-minority employees are not disciplined, or harsher discipline for same infractions).” The November 10, 2003 letter further states: “Additionally, be aware that the class claims will not include termination, harassment (hostile work environment), retaliation or any claims other than the class claims listed above. Therefore, if you wish to pursue these claims (along with any of the class claims), rather than participate in the class action, you may choose to be represented by us in an individual action, before Judge Illston. If you decide to pursue an individual action, you will be required to ‘opt out’ as a member of the class action and will not be entitled to any monetary relief awarded to class members.” On the same date, Michael Davis, another class attorney, sent plaintiff a letter confirming his discussion with her that she wished to be an unnamed class member and that she would forego filing an individual discrimination complaint against FedEx.
On September 27, 2005, the federal district court certified two classes in the class action. First, the district court certified a minority employee class which included African-American and Latino freight handlers. Second, the federal court certified an African-American lower management class. The district court certified class claims concerning compensation and discipline for all minority class members. Subsequently, the class action was settled. On December 7, 2005, notice of the settlement was sent to all class members. On April 13, 2007, the district court preliminarily approved the class action settlement. On August 14, 2007, the district court approved the class action settlement.
Plaintiff alleges she became aware of the settlement in mid-August 2007 when she read an article in Jet magazine. Plaintiff contacted the law firm. Someone at the law firm told plaintiff to call the class action settlement administrator. On September 24, 2007, plaintiff spoke to a representative at the claims administrator’s office. Plaintiff was informed that all claim forms were mailed using the addresses FedEx had provided for current and former employees. Plaintiff did not receive a claim form during the claim period. This was because it was sent to plaintiff’s old address based on FedEx’s information. The settlement administrator later sent the settlement notice and claim form to plaintiff on September 24, 2007. The last day to file a claim was August 1, 2007. Thus, the claims administrator rejected plaintiff’s claim as untimely on October 17, 2007.
B. Small Claims Action
On September 9, 2008, plaintiff sued defendants in small claims court in Los Angeles. The Los Angeles small claims action was dismissed without prejudice on improper venue grounds. On April 29, 2009, plaintiff sued defendants in small claims court in the San Francisco Superior Court. Plaintiff alleged Mr. Schneider and Mr. Wallace failed to represent her as a member in a class action suit. Plaintiff also alleged the law firm failed to represent her as a client in a class action suit after she signed a retainer agreement.
On July 16, 2009, plaintiff’s small claims action was tried. After trial, but before the judgments were entered, plaintiff sought to dismiss her claims without prejudice. The dismissals were initially accepted by the San Francisco court clerk. But the dismissals were later vacated. This occurred because the small claims court discovered the dismissal was filed after the matter had been taken under submission. On September 10, 2009, the San Francisco small claims court entered separate judgments in defendants’ favor.
On June 29, 2009, the federal class action monitoring counsel sought approval from the district court to pay plaintiff’s late claim from a portion of the settlement fund. The settlement fund was established to pay class counsel for monitoring the consent decree. On July 16, 2009, defendants appeared at the small claims trial with a check for plaintiff in the amount of her portion of the class action settlement plus interest to date.
C. Superior Court Action
On July 28, 2009, plaintiff filed a complaint against defendants and other individuals alleging claims for: professional negligence; contract breach; fiduciary duty breach; accounting of class action settlement; and declaratory and injunctive relief. On October 22, 2009 plaintiff filed her first amended complaint for professional negligence and fiduciary duty breach.
On November 30, 2009, defendants demurred to the first amended complaint. Defendants’ demurrer was heard on January 22, 2010, and sustained without leave to amend on February 4, 2010. The trial court ruled: “The First Amended Complaint shows that defendants were representing her, and that she sued them in the small claims action for their acts or omissions in connection with that representation. A decision was rendered against her in that case; that decision is now final because she did not appeal it. She cannot sue them again. Even if she could, her claims are stale.” On March 8, 2010, plaintiff dismissed her claims against Ms. Harris without prejudice. Judgment was entered in favor of defendants on March 11, 2010. Plaintiff filed a timely appeal on April 6, 2010.
III. DISCUSSION
A. Standard of Review
We review de novo the trial court’s ruling sustaining the demurrer without leave to amend. (McCall v. PacifiCare of California, Inc. (2001) 25 Cal.4th 412, 415; Hellum v. Breyer (2011) 194 Cal.App.4th 1300, 1308.) When reviewing a judgment sustaining a demurrer without leave to amend, we give the first amended complaint a reasonable interpretation by reading it as a whole and its parts in their context, and all material facts properly pleaded are deemed admitted. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967; Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) However, we do not assume the truth of contentions, deductions or conclusions of law. (Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at p. 967; Moore v. Regents of University of California, supra, 51 Cal.3d at p. 125.) It is error to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. (Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at 967; Bologna v. City and County of San Francisco (2011) 192 Cal.App.4th 429, 433-434.) Our Supreme Court has held: “[I]t is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at p. 967; Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)
In evaluating the sufficiency of the complaint, we will consider matters that may be judicially noticed. (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1040; N.V. Heathorn, Inc. v. County of San Mateo (2005) 126 Cal.App.4th 1526, 1531.) When the complaint’s allegations contradict or are inconsistent with judicially noticed matters, we accept the facts and reject the claims. (Blatty v. New York Times Co., supra, 42 Cal.3d at p. 1040; GlobeInternat., Inc. v. Superior Court (1992) 9 Cal.App.4th 393, 398.) Here, the trial court took judicial notice of the trial exhibits submitted by plaintiff at the July 16, 2009 trial in small claims court. We assume the documents were properly before the trial court and we consider them in this appeal.
B. Res Judicata
The trial court ruled plaintiff’s claims were barred by res judicata principles. Our Supreme Court has held, “Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896; Citizens Planning Assn. v. City of Santa Barbara (2011) 191 Cal.App.4th 1541, 1549.) Further, our Supreme Court has explained, “Under this doctrine, all claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date. ‘“Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief.”’ [Citation.]” (Mycogen Corp. v. Monsanto Co., supra, 28 Cal.4th at 897, quoting Weikel v. TCW Realty Fund II Holding Co. (1997) 55 Cal.App.4th 1234, 1245.)
The res judicata bar applies if: a claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; the prior proceeding resulted in a final judgment on the merits; and the party against whom the doctrine is being asserted was one in privity with another to the prior proceeding. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 798; Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 577.) Res judicata principles preclude a plaintiff from relitigating the same issues decided against him or her in small claims court. (Pitzen v. Superior Court (2004) 120 Cal.App.4th 1374, 1381, 1385; Allstate Ins. Co. v. Mel Rapton, Inc. (2000) 77 Cal.App.4th 901, 907.)
Plaintiff contends the trial court abused its discretion by considering evidence from the small claims action and sustaining the demurrer on res judicata grounds. Plaintiff argues defendants never filed a notice of related case under rule 3.300(b) of the California Rules of Court. But defendants are not required to file a notice of related case before demurring. Here, the trial court judicially noticed the small claims judgments and trial exhibits submitted by plaintiff as authorized by Evidence Code section 452, subdivision (d). (Planning and Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 225; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1284 (con. & dis. opn. of Hollenhurst, Acting P. J.).)
As to the merits, res judicata principles preclude plaintiff from relitigating her professional negligence and fiduciary duty breach claims against defendants. Plaintiff and defendants were the same parties to the prior San Francisco small claims action. The causes of action raised in this action are identical to the issue litigated by plaintiff in her prior San Francisco small claims action. At plaintiff’s San Francisco small claims trial, she submitted numerous exhibits to support her claim of inadequate legal representation including: her retainer agreement with the law firm; her correspondence with defendants relating to the federal class action matter; and her correspondence with the class action claims administrator. Plaintiff references these same documents in her first amended complaint. Plaintiff’s professional negligence and fiduciary duty breach claims are the same as the inadequate legal representation cause of action that was tried and adjudicated in San Francisco small claims court. Finally, the small claims action resulted in a final judgment on the merits. The small claims court rendered judgments in favor of defendants after conducting a trial. (Code Civ. Proc., § 116.710, subd. (a); Parada v. Small Claims Court (1977) 70 Cal.App.3d 766, 769.) Thus, the judgments were on the merits and final because they cannot be appealed. All of her claims against defendants are barred by res judicata principles.
C. Statute of Limitations
Also, plaintiff’s claims are barred by the statute of limitations. Plaintiff’s professional negligence and breach of fiduciary duty claims are governed by the statute of limitations for attorney malpractice set forth in Code of Civil Procedure section, 340.6, subdivision (a), which 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 of the wrongful act or omission, 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. [¶] (2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred. [¶] (3) 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. [¶] (4) The plaintiff is under a legal or physical disability which restricts the plaintiff’s ability to commence legal action.” (Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54, 67- 68; Stoll v. Superior Court (1992) 9 Cal.App.4th 1362, 1369.) Our Supreme Court has explained, “[The statute of] limitations period is one year from actual or imputed discovery, or four years (whichever is sooner), unless tolling applies.” (Beal Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 508; Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 559, 566.) Section 340.6, subdivision (a) provides in part that with the exception of section 340.6, subdivision (a)(3), the tolling provisions apply to both the one-year and four-year limitations periods. (Jocer Enterprises, Inc., supra, 183 Cal.App.4th at p. 567; Bennett v. McCall (1993) 19 Cal.App.4th 122, 126.)
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Actual injury occurs when the client suffers any loss or injury legally cognizable as damages in a legal malpractice action. (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 743; Adams v. Paul (1995) 11 Cal.4th 583, 588-589.) The loss or diminution of a right or remedy constitutes injury or damages. (Adams v. Paul, supra, 11 Cal.4th at p. 590; Truong v. Glasser (2009) 181 Cal.App.4th 102, 112.) The Court of Appeal has held, “‘[W]hen malpractice results in the loss of a right, remedy, or interest, or in the imposition of a liability, there has been actual injury regardless of whether future events may affect the permanency of the injury or the amount of monetary damages eventually incurred.’” (Id. at p. 112, quoting Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 227.) In the first amended complaint, plaintiff concedes that the four-year statute of limitations began to run on February 6, 2003, the day after her sexual harassment and retaliatory termination claims against FedEx expired. But plaintiff contends the statute of limitations was tolled until August 16, 2007, the date the district court entered a final order approving the FedEx class settlement. Plaintiff further asserts she first discovered that the settlement did not include sexual harassment and retaliatory termination claims during her July 16, 2009 small claims trial. Plaintiff acknowledges the one-year statute of limitations on her attorney malpractice claims expired before the four-year statute of limitations. But, plaintiff asserts that the statute of limitations on her attorney malpractice claims did not run until July 16, 2010. Plaintiff’s arguments have no merit. As plaintiff conceded in her first amended complaint, the statute of limitations was not tolled under section 340.6, subdivision (a)(1). This is because she suffered actual injury on February 6, 2003, the day after her sexual harassment and retaliatory termination claims against FedEx expired. The filing of the complaint on July 28, 2009, was untimely.
D. Leave to Amend Complaint
Here, plaintiff fails to show how she can cure the defects in her claims. Plaintiff’s professional negligence and fiduciary duty breach claims are barred by res judicata principles and the statute of limitations. She has not demonstrated how she can further amend to avoid the res judicata bar and statute of limitations defense. The trial court did not abuse its discretion in sustaining the demurrer without leave to amend because any amendment would be futile.
IV. DISPOSITION
The March 11, 2010 judgment is affirmed. Defendants, Todd Schneider, Guy Wallace and Schneider Wallace Brayton Konecky LLP, are to recover their costs from plaintiff, Janel Buycks.
We concur: MOSK, J., KRIEGLER, J.