FEATHERS v. DLA PIPER LLP, et al.

LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 18, 2026 TIME: 8:30 A.M.

No. 26CV00483

FEATHERS v. DLA PIPER LLP, et al.

DEFENDANTS’ DEMURRER TO COMPLAINT

The demurrer is sustained without leave to amend. Plaintiff’s complaint is time-barred and there is no reasonable possibility that the defects can be cured by amendment. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037.)

Self-represented plaintiff Mark Feathers filed his first amended complaint (“FAC”) on February 17, 2026, alleging a single cause of action for professional negligence against defendants DLA Piper LLP and Nicolas Morgan, Esq. Plaintiff claims he hired defendants in 2011 to advise and defend him in a Securities and Exchange Commission (“SEC”) investigation, and later 2012 enforcement action, but they failed to properly assess and respond so he could avoid the ex parte TRO that froze his assets. He alleges defendants failed to use the six-month period between December 2011 and June 2012 to assess and avoid consequences of a TRO, and breached their duty by withdrawing from his representation when the TRO was issued. (FAC ¶¶ 15-34, 37.)

Defendants argue the FAC is time-barred by statute. (Code Civ. Proc., § 340.6 [“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.”].) Defendants contend plaintiff’s claim is barred by both the one-year and four-year limitations periods since their allegedly negligent conduct occurred on or before June 27, 2012, and plaintiff did not file until February 2026. They also argue he is not entitled to tolling of those periods.

Plaintiff contends he lacked access to records, funding and counsel at the time of the TRO which prevented his discovery of the wrongdoing, and that those allegations preclude sustaining a demurrer.

Defendants object to plaintiff’s multiple filings (opposition and supplemental) but since they were filed months before the hearing, providing defendants with sufficient time to respond, the Court will consider all pleadings filed in this matter.

I. LEGAL STANDARDS

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the

LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 18, 2026 TIME: 8:30 A.M.

allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ....” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)

A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

“A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. In order for the bar...to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.)

II. DISCUSSION

The Court agrees that plaintiff’s claim for professional negligence is time-barred. “[T]he four-year period is indeed an occurrence period which will run whether or not the plaintiff has discovered the malpractice.” (Radovich v. Locke-Paddon (1995) 35 Cal.App.4th 946, 970 [emphasis in original]; Code Civ. Proc., § 340.6, subd. (a).)

“To protect clients, the Legislature codified the Neel/Budd delayed discovery rule, albeit with a one-year limit from the time of actual or imputed discovery. To protect attorneys, it adopted a firm four-year outside limit on liability...Committee reports indicate this four-year limit was intended to counteract the otherwise “open-ended” liability to which lawyers were subject under the delayed discovery rule.” (Escamilla v. Vannucci (2025) 17 Cal.5th 571, 582–583 [cit. omitted].)

In both the FAC and plaintiff’s opposition, he concedes his claim is based on the manner and timing of defendants’ 2012 withdrawal. (Supp. Resp. at p. 3; FAC ¶¶ 24, 28, 29, 31-33, 36; Def. RJN 1, 2.) Plaintiff therefore had until June 2016 to bring his claim, but did not.

Plaintiff’s claim also appears time-barred under the shorter one-year period. Plaintiff’s allegations -- that defendants failed to plan and prepare for the enforcement action and a possible asset freeze -- demonstrate that he discovered the wrongdoing he alleges in this action no later than June 27, 2012, or at least had a suspicion of wrongdoing which creates a duty to discover the facts. (FAC ¶¶ 24, 28, 36, 37; Peregrine Funding Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 685.)

LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 18, 2026 TIME: 8:30 A.M.

When either of the following tests is met, the limitations period begins to run: (1) a subjective test requiring actual suspicion that the injury was caused by the wrongdoing, or (2) an objective test requiring a showing that a reasonable person would have suspected the harm was caused by the wrongdoing. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110.) At the latest, it appears plaintiff discovered the alleged wrongdoing by defendants when in 2023 he sought to join defendant Morgan to his civil case against the SEC based on Morgan’s “failure to provide effective counsel.” (Defs. RJN 17.) Therefore, based on this concession, plaintiff’s one-year limitations period would have run in 2024.

Further, plaintiff’s burden is to establish tolling of the one-year limitations period, and he has failed to do so. First, he admits his actual injury occurred due to the TRO and asset freeze in 2012. (FAC ¶ 38; Code Civ. Proc., § 340.6, subd. (a)(1).) Second, he cannot establish that the offending attorney continued representation since he admits defendants withdrew in June 2012. (FAC ¶¶ 31, 36; Code Civ. Proc., § 340.6, subd. (a)(2).) Finally, plaintiff was not incarcerated related to the SEC criminal action until 2018, so that tolling provision will not apply. (Defs. RJN 14; Code Civ. Proc., § 340.6, subd. (a)(4).)

The Court finds plaintiff’s claim is time-barred and that no amendment can cure such defect. The FAC is dismissed with prejudice.

III. REQUESTS FOR JUDICIAL NOTICE AND OBJECTIONS TO EVIDENCE

Pursuant to Evidence Code section 452, subsections (c) and (d), the Court grants requests for judicial notice of the following:

Defendants’ request:

• Exhibits 1 through 10, filed documents in Securities and Exchange Commission v. Small Business Capital Corp., et al. (Case No. 5:12-cv-03237-EJD) • Exhibits 11 through 14, filed documents in United States v. Mark Feathers (Case No. 5:14-cr-00531-LHK) • Exhibit 15, Federal Bureau of Prisons Inmate Locater for Mark Feathers (Register No. 20055-111); • Exhibits 16 through 19, filed documents in Mark Feathers v. United States Securities and Exchange Commission (Case No. 3:22-cv-05756-JD).

Plaintiff’s request:

• Exhibit 1, filed document in Feathers v. Commissioner (Case No. 25-4936 (9th Cir.))

LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 18, 2026 TIME: 8:30 A.M.

• Exhibit 2 and 3, filed documents in United States v. Mark Feathers (Case No. 5:14-cr-00531-LHK) • Exhibit 4, U.S. Probation Office correspondence, July 25, 2022 • Exhibit 5, U.S. Department of the Treasury correspondence, November 19, 2025 • Exhibit 6, Opinion filed in Feathers v. Commissioner, T.C. Memo 2024-88 (U.S. Tax Court September 23, 2024) • Exhibit A, filed document in Mark Feathers v. Commissioner (U.S. Tax Court, September 13, 2021)

Plaintiff’s request for judicial notice of the following documents is denied as they are incomplete:

• Exhibit B, a single page of Exhibit 6, above. • Exhibit C, filed document in Mark Feathers v. U.S. Securities and Exchange Comm. (Case No. 5:23-cv-05610-SVK) • Exhibit D, filed document in SEC v. Small Business Capital Corp. (Case No. 5:12-cv-03237-EJD)

The Court declines to rule on defendants’ objections to plaintiff’s declaration since it is immaterial to the Court’s analysis on demurrer (limited to the FAC and RJN only).