Demurrer and Motion to Strike
(46) Tentative Ruling
Re: Michael Williams v. Tracy Agrall Superior Court Case No. 25CECG04193
Hearing Date: August 13, 2026 (Dept. 503)
Motion: Demurrer and Motion to Strike
Tentative Ruling:
To overrule the demurrer. To grant the motion to strike those items specified in the Notice of Motion, with leave to amend. Plaintiff is granted 10 days’ leave to file an amended complaint; the time in which the complaint may be amended will run from service of the order by the clerk. New allegations/language must be set in boldface type.
Explanation:
Demurrer
“The applicable statute of limitations for legal malpractice claims is section 340.6.” (Truong v. Glasser (2009) 181 Cal.App.4th 102, 110, 103 Cal.Rptr.3d 811.) It provides that a malpractice action must 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....” (§ 340.6, subd. (a).) The running of the statute of limitations is tolled during the time that “[t]he attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.” (Id. subd. (a)(2); see also Beal Bank, SSB v.
Arter & Hadden, LLP (2007) 42 Cal.4th 503, 505, 66 Cal.Rptr.3d 52, 167 P.3d 666 [“Under California law, the statute of limitations for attorney malpractice claims arising from a given matter is tolled for the duration of the attorney's representation of the client in that matter”].) The tolling is referred to as “the continuous representation exception.” (Id., at p. 511, 66 Cal.Rptr.3d 52, 167 P.3d 666; Truong v. Glasser, supra, 181 Cal.App.4th at p. 115, 103 Cal.Rptr.3d 811.) “Code of Civil Procedure section 340.6 does not expressly state a standard to determine when an attorney's representation of a client regarding a specific subject matter continues or when the representation ends, and the legislative history does not explicitly address this question.” (Gonzalez v.
Kalu (2006) 140 Cal.App.4th 21, 28, 43 Cal.Rptr.3d 866.)
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The Complaint in this action was filed on September 8, 2025. Defendants contend that the representation ended on July 8, 2024, over a year prior to the filing, when
Defendants substituted out of the Trust proceedings.3 Defendants argue this is sufficient to demonstrate there was no continuing representation.
Plaintiff retained Defendants in or about 2020-2021 to represent him in connection with a merger of CWES, Inc. into the Laura Williams Survivor’s Trust. (Compl., ¶ 9.) In or about April 2024, Defendants also undertook representation of him in defending against a petition connected to trust litigation of the Laura Williams Survivor Trust. (Id., ¶¶ 12-13.) Plaintiff alleges that Defendants (1) failed to advise him that the Trust required an independent evaluation of CWES, Inc. prior to the merger and failed to obtain the independent evaluation; and (2) in 2025, negligently advised Plaintiff to enter into a settlement agreement regarding the issues raised by the petition and failed to protect his interests. (Id., ¶¶ 12, 15-16, 27.)
Plaintiff alleges that he discovered such professional negligence and legal malpractice in December 2024. (Id., ¶ 8.) The present action was filed on September 8, 2025, less than a year later.
Defendants argue that Plaintiff knew or should have known about the facts giving rise to his malpractice claim prior to September 8, 2024, as Plaintiff knew he was defending against allegations concerning his role as co-trustee of the Trust, and should have known from his successor counsel in July 2024. Any actual injury suffered was no later than April 10, 2024, when the petition against him was filed in the trust litigation.
Plaintiff opposes4 the demurrer and argues that although Defendants were formally substituted out of the underlying action, Ms. Agrall continued to encourage him to telephone her whenever he had questions and remained responsive to his calls and e-mails; she purportedly did not tell Plaintiff that she could not or would not advise him concerning the Trust after substitution. He asserts that Ms. Agrall continued providing guidance on the related Trust and corporate matters after her formal substitution. (See Opp., ¶¶ 15-16, 24.)
On a demurrer, a court's function is limited to testing the legal sufficiency of the complaint. A demurrer is simply not the appropriate procedure for determining the truth of disputed facts. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-114.) In determining a demurrer, the court assumes the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 883.)
On general demurrer, the court determines if the essential facts of any valid cause of action have been stated. (Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 572; Code Civ. Proc. § 430.10 subd. (e).) A plaintiff is not required to plead evidentiary facts supporting the allegation of ultimate fact; the pleading is adequate if it apprises defendant of the factual basis for plaintiff's claim. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.)
Defendants filed a substitution of counsel on July 8, 2024. (RJN, ¶ 1, Exh. A.) However, the Complaint alleges that Defendants continued to advise him on Trust matters until at least 2025, which is well beyond the one year statute of limitations prior to filing this action. (Compl., ¶ 15.) Filing a substitution of attorneys does not, as a matter of law, end representation. (Code Civ. Proc., § 340.6, subd. (a)(2); see Shaoxing City
3 Defendants’ Request for Judicial Notice may be granted. 4 The court in its discretion will consider the late filed opposition.
Maolong Wuzhong Down Products, Ltd. v. Keehn & Associates, APC (2015) 238 Cal.App.4th 1031, 1039.) Plaintiff further alleges in the Complaint that his discovery of the facts underlying his claims did not occur until December 2024, still within the one-year timeframe. (Id., ¶ 8.) On demurrer, the court assumes the truth of the facts alleged in the Complaint. While Defendants dispute the truth of these allegations, they have been alleged in the Complaint and their truth is not at issue on demurrer. Plaintiff at this stage need only plead ultimate fact and not evidentiary facts. “At this stage, [...] without any development of the facts, we cannot conclude that section 340.6(a) necessarily bars [Plaintiff’s] claim.” Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.) The court intends to overrule the demurrer.
Motion to Strike
“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading; (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.) A motion to strike may be used to remove a claim for punitive damages that is not adequately supported by the facts alleged in the complaint. (Cryolife, Inc. v. Superior Court (2003) 110 CalApp.4th 1145; Kaiser Foundation Health Plan, Inc. v. Superior Court (2012) 203 Cal.App.4th 696.)
Defendants move to strike from the Complaint the prayers for exemplary, general, treble, punitive, and emotional distress damages, as well as the request for prejudgment interest. These types of damages are either statutorily authorized (i.e. treble damages) or must be supported by specific factual allegations of malice, oppression, fraud, or more than financial harm (e.g. a liberty interest at stake). Such specifics are not presently alleged in the Complaint, and the court intends to grant the motion to strike the requested items, with leave to amend.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: JS on 8/11/2026. (Judge’s initials) (Date)
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