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DEMURRER
Defendants’ demurrer to the First, Second, and Third Causes of Action is OVERRULED.
Procedural Deficiency
While Defendants’ counsel states in his declaration that he met and conferred prior to filing the demurrer, it is unclear from his declaration if this was done “in person, by telephone, or by video conference” as required by Code of Civil Procedure Section 430.41(a)(3). The demurrer will not be overruled on this basis. (Code Civ. Proc. § 430.41(a)(4).) The Court nevertheless reminds Defendants to follow all applicable rules when filing matters with the court.
Allegations in the Third Amended Complaint
Plaintiff Anne Prell alleges that after a foreclosure sale of her home in July 2023, she retained Defendants Jason W. Estavillo and the Law Offices of Jason Estavillo, erroneously sued as Estavillo Law Group (“Defendants”), to negotiate with the foreclosure buyer the timing of Plaintiff’s move out of the property and to assist in expediting Plaintiff’s receipt of the surplus funds from the foreclosure sale. (Third Amended Complaint (“TAC”), ¶¶11, 12.) The parties executed a retainer agreement on July 18, 2023 and Plaintiff signed forms allowing Defendants to deduct funds from her accounts and to sign pleadings. (Id., ¶13.)
Defendants advised Plaintiff not to move out of her home, advising her it would be an effective negotiation tactic if she remained in possession. The buyer then brought an unlawful detainer action against Plaintiff (the “UD Action”) and Plaintiff was evicted on December 12, 2023. Defendants filed a separate action on Plaintiff’s behalf against the lender and buyer for wrongful foreclosure (the “Wrongful Foreclosure Action”), which was dismissed. Defendants did not enter into any negotiations with the buyer about Plaintiff’s move out and eventually the buyer
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sued Plaintiff for damages and back rent. (Id., ¶¶14-16, 22.) Defendant Estavillo’s law license was suspended in September 2023 but he did not advise Plaintiff of this fact and his firm continued to generate legal work and charge Plaintiff for Estavillo’s services. (Id., ¶17.) Plaintiff’s surplus funds were deposited into an account bearing both her name and Defendant Estavillo’s name, after which he began money transfers and withdrawals from the account. (Id., ¶18.)
Plaintiff’s First Cause of Action alleges legal malpractice against Defendants, the Second Cause of Action alleges breach of fiduciary duty, and the Third Cause of Action alleges breach of contract. The Third Amended Complaint states that the Retainer Agreement executed by the parties is attached as Exhibits A and B, but the copy filed with the court does not include these exhibits.
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Standard
“The function of a demurrer is to test the sufficiency of the complaint as a matter of law, and it raises only a question of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) A complaint “ordinarily is sufficient if it alleges ultimate rather than evidentiary facts” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550), but the plaintiff must set forth the essential facts of his or her case “with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent” of the plaintiff’s claim. (Doheny Park Terrace Homeowners Assn., Inc. v.
Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099 [citation and internal quotations omitted].) Legal conclusions are insufficient. (Id. at 1098–1099; Doe, 42 Cal.4th at 551, fn. 5.) The court “assume[s] the truth of the allegations in the complaint, but do[es] not assume the truth of contentions, deductions, or conclusions of law.” (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.)
Request for Judicial Notice
Defendants’ request for judicial notice of Exhibits F through Q, which are documents filed in various court actions and the register of actions for two actions, is granted. (Evid. Code §§ 452, 453.) However, the court does not take judicial notice of the truth of matters stated therein. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) While Defendants attach versions of Plaintiff’s Complaint as Exhibits A-E, they do not request that the Court take judicial notice of them. The Court takes judicial notice of these pleadings sua sponte. (See Scott v. JPMorgan Chase Bank, NA (2013) 214 Cal.App.4th 743, 752 [“the court may take judicial notice on its own volition”].)
Extrinsic Evidence
In ruling on the demurrer, the Court does not consider the letter Plaintiff states she attaches to her declaration1 or Exhibits A-F of her Opposition brief. (See Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 359 [“[A] demurrer looks only to the face of the pleadings and to matters judicially noticeable and not to the evidence or other extrinsic matter”][citation and internal quotations omitted] [emphasis in original]; McKenney v. Purepac Pharmaceutical Co. (2008)
1 The copy of the declaration filed with the court does not actually have any letter attached.
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167 Cal.App.4th 72, 77 [only issue in demurrer hearing is “whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action”] [citation and internal quotations omitted].)
The Court also does not consider the discovery responses attached as Exhibits R and S to the declaration of Defendants’ counsel Geoffrey Macbride. Defendants did not request that the Court take judicial notice of these responses and, even if they did, judicial notice would only be appropriate to extent the responses contain statements by Plaintiff that are inconsistent with the allegations in her Third Amended Complaint. (See Bounds v. Superior Court (2014) 229 Cal.App.4th 468, 477.) Defendants do not offer the discovery responses for this purpose.
Discussion
Defendants demur to all three causes of action on the ground that they are untimely.
“ʽA 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 of the statute of limitations 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.’“ (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972 [citations omitted]; see also Childs v. State of California (1983) 144 Cal.App.3d 155, 161 [“‘[a] demurrer on the ground of the bar of the statute of limitations does not lie where the complaint merely shows that the action may have been barred. It must appear affirmatively that, upon the facts stated, the right of action is necessarily barred”’] [citation omitted][emphasis in original].)
The statute of limitations for legal malpractice is one year and starts to run when the client discovers or should have discovered the cause of action. (Code Civ. Proc. § 340.6; Troche v. Daley (1990) 217 Cal.App.3d 403, 408.) The limitations period is tolled during any time “[t]he attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.” (Code Civ. Proc. § 340.6(a)(2).) “An attorney continues to represent a client on the same specific subject matter until the agreed tasks have been completed or events inherent in the representation have occurred.” (Gold v.
Weissman (2004) 114 Cal.App.4th 1195, 1200 [citation and internal quotations omitted].) “In determining whether an attorney continues to represent a client, [courts] . . . objectively examine evidence of an ongoing mutual relationship and of activities in furtherance of the relationship. Representation ends when the client actually has or reasonably should have no expectation that the attorney will provide further legal services.” (Wang v. Nesse (2022) 81 Cal.App.5th 428, 440 [citations and internal quotations omitted] [emphasis in original].)
The one year limitation period for legal malpractice under Section 340.6 also applies to a client’s claims against the attorney for breach of fiduciary duty and for breach of contract. (See Stoll v. Superior Court (1992) 9 Cal.App.4th 1362, 1368-1369 [breach of fiduciary duty]; Southland Mechanical Constructors Corp. v. Nixen (1981) 119 Cal.App.3d 417, 429, disapproved on other grounds in Laird v. Blacker, supra, (1992) 2 Cal.4th 606, 617 [breach of contract]; Levin v. Graham & James (1995) 37 Cal.App.4th 798, 805.) All parties agree that the one year period applies to all three of Plaintiff’s claims.
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Plaintiff’s original Complaint was filed on December 2, 2024. Defendants argue that all of Plaintiff’s causes of action are untimely because they accrued before December 2, 2023.
Defendants’ demurrer to all causes of action based on the statute of limitations is overruled. There are no facts alleged in any of the versions of Plaintiff’s Complaint that clearly show Plaintiff discovered or should have discovered her causes of action against Defendants before December 2, 2023. These pleadings allege, at most, that Plaintiff sought to end the relationship with Defendants in late November 2023. Defendants do not cite to any allegations where Plaintiff states that the reason she did this was due to any perceived malpractice or breach of fiduciary duty by Defendants.
In their Reply, Defendants misrepresent the original Complaint in an attempt to make this showing. Defendants state: “Plaintiff alleged in her initial Complaint she fired Estavillo in November 2023 because of alleged ‘grossly excessive, wasteful, unauthorized, unnecessary, and repetitive work on the case.’ (Ex. A, ¶ 15.)” (Reply, p. 6:19-21.) This is not what is actually alleged in paragraph 15 of the original Complaint, however. Rather, there, Plaintiff alleges: “Defendants’ billing records evidence grossly excessive, wasteful, unauthorized, unnecessary, and repetitive work on the case.
Moreover, notwithstanding being fired in late November 2023, Defendants continued to generate legal paper-work. For example, Estavillo submitted an invoice for services rendered in February 2024.” The actual language of the original Complaint is important because unlike what Defendants imply, there is no allegation that Plaintiff knew the billing records evidenced grossly excessive, wasteful, unauthorized, unnecessary and repetitive work in November 2023. The Reply also argues that Plaintiff had a duty to plead facts to avoid the discovery rule, but this applies only where the other facts alleged reflect that the claim is time-barred. (See Czajkowksi v.
Haskell & White LLP (2012) 208 Cal.App.4th 166, 174.) That is not the case here.
Moreover, the facts alleged indicate that the continued representation exception may apply. Plaintiff’s Third Amended Complaint alleges that in late November 2023, the parties agreed that Defendants would drop the Wrongful Foreclosure Action and try to resolve the UD Action promptly. They also agreed that Defendants would remain as Plaintiff’s counsel with this understanding in mind, and pending the finalization of the tasks agreed to after November 30, 2023. Despite the agreements reached in late November 2023, Defendants continued to generate legal paperwork.
Defendants also maintained control over the surplus funds account until January 10, 2024. (TAC, ¶¶20, 24.) Based on these allegations, Plaintiff’s claims are not clearly barred by the one-year limitations period because Plaintiff alleges the parties agreed in late November 2023 that Defendants would remain on as counsel and Defendants continued to generate legal paperwork after that time.
Defendants argue that the Court should disregard the allegations in the Third Amended Complaint because they are different and often contradictory from the allegations in the three previous versions of Plaintiff’s Complaint. Under the sham pleading doctrine, “ʽplaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment.’” (Water Audit California v. Merced Irrigation Dist. (2025) 111 Cal.App.5th 1147, 1157 [citation omitted].)
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In her original Complaint, Plaintiff alleged that in late November 2023, she fired Defendants. She further alleges that notwithstanding this fact, Defendants continued to generate legal paperwork, including for services rendered in February 2024. (RNJ Exh. A, ¶¶13, 15.) In her First Amended Complaint, Plaintiff alleged that in November 2023, Defendants had prepared a motion for withdrawal of counsel, and Plaintiff told Defendants to cease work on all the cases except the UD Action and the related holdover negotiations.
Plaintiff further alleged that Defendants agreed to continue with the eviction matters, continued to generate legal work, and moved to withdraw as counsel in January 2024. (RJN Exh. B, ¶¶20, 25.) In her Second Amended Complaint, Plaintiff alleged that in three telephone calls between November 2 and 15, 2023, she told Defendants to cease work on all the cases except the stay over agreement and the surplus funds issue. Plaintiff also alleged that in a phone call in late November 2023, she and Defendants agreed that Defendants would drop further prosecution of Wrongful Foreclosure Action and concentrate on the move-out agreement, the UD Action, and the surplus funds issues. (RJN Exh.
C, ¶¶18, 19, 36.)2
Even if the Court considers Plaintiff’s allegation in the original Complaint that she fired Defendants in November 2023, the attorney-client relationship would not necessarily terminate as of the exact time she made that statement to Defendants. Plaintiff also alleged in her original Complaint that Defendants continued to generate legal paperwork after that date, which raises a reasonable inference that Defendants continued to work on Plaintiff’s legal matters. (See Gurkewitz v. Haberman (1982) 137 Cal.App.3d 328, 333 [“[S]o long as there are unsettled matters tangential to a case, and the attorney assists the client with these matters, he is acting as his representative”]; Miyahara v.
Wells Fargo Bank, NA (2014) 99 Cal.App.5th 687, 703 [on demurrer, court draws reasonable inferences in favor of the plaintiff].) This fact would be consistent with Plaintiff’s allegations in the later versions of her Complaint. The work Defendants performed and the extent of their involvement are unclear from the face of the original Complaint, thus raising a factual and evidentiary issue not appropriate for determination on demurrer. (See Michaels v. Greenberg Traurig, LLP (2021) 62 Cal.App.5th 512, 528 [triable issues of fact existed as to whether limitations period was tolled based on continuing representation]; Gonzalez v.
Kalu (2006) 140 Cal.App.4th 21, 32-33 [same]; O’Neill v. Tichy (1993) 19 Cal.App.4th 114, 121 [same].) The Court also notes that the continued representation
2 Defendants also cite to (i) their motions to withdraw as counsel in both the UD Action and the Wrongful Foreclosure Action, filed on November 27, 2023 (RJN Exhs. H-M); (ii) the clerk’s setting of hearings for these motions for January 23, 2024 in the Wrongful Foreclosure Action and January 30, 2024 for the UD Action (RJN Exhs. H, K), and (iii) Plaintiff’s execution of Substitutions of Counsel in both actions on January 10, 2024 (RNJ Exhs. N, O.) Defendants argue that their motions to withdraw as counsel are inconsistent with Plaintiff’s allegations in any of her versions of her Complaint that the parties agreed Defendants would continue to represent her after November 27, 2023.
However, Defendants do not cite to any authority that the Court can consider anything other than prior allegations in a plaintiff’s earlier pleading to determine the applicability of the sham pleading doctrine. Moreover, even if the Court considered these documents for this purpose, they would not change the Court’s ruling. The filing of a motion to withdraw as counsel does not necessarily terminate the relationship as of the date of filing. (See Flake v. Neumiller & Beardslee (2017) 9 Cal.App.5th 223, 230; Worthington v.
Rusconi (1994) 29 Cal.App.4th 1488, 1498; Hensley v. Caietti (1993) 13 Cal.App.4th 1165, 1172-1173.) In Flake, cited by Defendants, the court held that once the former attorney advised the client, via motion to withdraw, that the case had already been handed off to another attorney, the client was on notice the former attorney no longer worked for him. Here, Plaintiff does not allege she was represented by other counsel before December 2, 2023 or that she discussed retaining other counsel with Defendants before that date, and Defendants’ exhibits show that Plaintiff did not agree to a substitution of counsel until January 2024.
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exception could apply even if Plaintiff knew of alleged wrongful acts or omissions before December 2, 2023. (See O'Neill, 19 Cal.App.4th at pp. 121; Laclette v. Galindo (2010) 184 Cal.App.4th 919, 926.)
Therefore, even in light of Plaintiff’s earlier allegations, the bar of the statute of limitations does not clearly appear on the face of the pleadings so as to warrant the sustaining of the demurrer. The demurrer to all three causes of action is overruled.
All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B) to contest the tentative decision. Parties who request oral argument are required to appear in person or remotely by ZOOM. Regardless of whether a party requests oral argument in accordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with the announced ruling as required by Marin County Superior Court Local Rules, Rule 2.11.
The Zoom appearance information for May, 2026 is as follows: https://marin-courts-ca-gov.zoomgov.com/j/1605267272?pwd=908CbP6TV2mhCAyai1nzo6lyz2dKaw.1
Meeting ID: 160 526 7272 Passcode: 026935 If you are unable to join by video, you may join by telephone by calling (669) 254-5252 and using the above-provided passcode. Zoom appearance information may also be found on the Court’s website: https://www.marin.courts.ca.gov