Gita Shipkowitz vs Gamble Parks

Case Number

24CV06699

Case Type

Hearing Date / Time

Wed, 06/04/2025 - 10:00

Nature of Proceedings

Demurrer

Tentative Ruling

Plaintiff by John Blumberg.

Defendant by Michael Feenberg, Vikram Sohal. 

RULINGS

1. For the reasons set out below the Demurrer is GRANTED without leave to amend.

2. The request for Judicial Notice of the following is GRANTED.

A. RFJN No. 1: Verified Petition to Appoint and Instruct Successor Trustee filed by Plaintiff GITA SHIPKOWITZ (“Plaintiff”) in a probate case entitled In re The Matter of The Abraham Safina Trust, Santa Barbara County Superior Court Case No. 22PR00058 (the “Probate Action”); and

B. No. 1(a): The Amended and Restated William Safina Revocable Trust; and

C. No. 1(b): Abraham Safina Trust dated January 17, 1995; and

D. No. 1(c): First Amendment to Declaration of Trust; and

E. No. 1(d): Will of William Safina; and

F. No. 1(e): Death Certificate for William Safina; and

G. No. 2: Preliminary Objection and Opposition to Petition to Appoint and Instruct Successor Trustee filed in the Probate Action on March 21, 2022; and

H. No. 3: Reuben Shipkowitz’s Verified Petition for an Order Determining the Invalidity of William Safina’s Exercise of Power of Appointment, etc., filed in the Probate Action on May 5, 2022; and

I. No. 4: Petition for Instructions and Notice of Joinder and Joinder in Petitioner Reuben Shipkowitz’s Verified Petition filed in the Probate Action on December 19, 2022; and

J. No. 5: Plaintiff’s Consolidated Opposition to All Petitions for an Order Determining the Invalidity of William Safina’s Exercise of Power of Appointment, filed in the Probate Action on March 22, 2023; and

K. No. 6: Joint Status Report filed by the parties to the Probate Action on June 9, 2023; and

L. No. 7: The December 8, 2023, Order entered in the Probate Action; and.

M. Petition to Vacate Contractual Arbitration Award, Santa Barbara Superior Court Case No.: 22CV03223; and

N. Executed Settlement Agreement re: Administrative Proceedings.

Acknowledgements

   The Court acknowledges and appreciates the professional work done by counsel in the case.[1] The Court apologizes for the length of this decision but in such a case the Court cannot get it done on one or even two sittings and so the Court keeps its reference material here. The materials submitted have been comprehensive, voluminous and conscientiously crafted. The Court does not want to lose the thread of the arguments made. This is a matter of significant consequence. This case has been contentious; acrimonious at times.

Some Applicable Law

The court’s only task in ruling on a demurrer is to determine whether the complaint states a cause of action. Moore v. Regents of University of California, 51 Cal.3d 120, 125 (1990). The court assumes the truth of allegations in the complaint that have been properly pleaded and give it a reasonable interpretation by reading it as a whole and with all its parts in their context. Stop Youth Addiction, Inc. v. Lucky Stores, Inc., 17 Cal.4th 553, 558 (1998). The court assumes the truth of the reasonable inferences that may be drawn from the properly pleaded material facts. Reynolds v. Bement, 36 Cal.4th 1075, 1083 (2005). However, the assumption of truth does not apply to contentions, deductions, or conclusions of law and fact. People ex rel. Lungren v. Superior Court, 14 Cal.4th 294, 300–301 (1996).

Judicial Notice

Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter. Judicial notice may not be taken of any matter unless authorized or required by law. Matters that are subject to judicial notice are listed in Evid. Code §§ 451 and 452. A matter ordinarily is subject to judicial notice only if the matter is reasonably beyond dispute. Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. While courts take judicial notice of public records, they do not take notice of the truth of matters stated therein. When judicial notice is taken of a document, the truthfulness and proper interpretation of the document are disputable. Herrera v. Deutsche Bank National Trust Co., (2011) 196 Cal. App. 4th 1366.) 

Defendant’s Demurrer

Filed 4/4/25; 22 pages; summarized: Defendant demurs to Plaintiff’s legal malpractice cause of action[2] on the grounds that it is barred by the one-year statute of limitations set forth in Code of Civil Procedure section 340.6. (Code Civ. Proc. § 430.10(e); SLRP, L.L.C. v. San Diego Unified Port Dist. (2020) 49 Cal.App.5th 284, 316 [A statute of limitations defense may be asserted by general demurrer.])

Defendant is an attorney licensed to practice law in California. In 2015, Defendant represented Plaintiff’s uncle in the drafting of certain testamentary documents in which the uncle purported to, inter alia, exercise a power of appointment granted to him under his deceased brother’s trust. Almost ten years after that representation concluded, Plaintiff filed this lawsuit against Defendant asserting a single cause of action for legal malpractice. Plaintiff alleges that Defendant negligently drafted her uncle’s testamentary documents and, because of said negligence, she did not receive certain assets from her uncles’ trusts, and she also incurred substantial attorneys’ fees and costs in the probate litigation against her aunt and cousins.

For purposes of a demurrer the complaint’s allegations are accepted as true; the sole cause of action for legal malpractice asserted in Plaintiff’s Complaint is fatally flawed as a matter of law and said flaw cannot be cured with a leave to amend.

Plaintiff’s legal malpractice Complaint against Defendant is barred by the statute of limitations set forth in Code of Civil Procedure section 340.6, which requires an action against an attorney for a wrongful act or omission arising in the performance of professional services to be commenced within one year after the plaintiff discovers, or with reasonable diligence should have discovered, the facts constituting the wrongful act or omission. (Code Civ. Proc. § 340.6(a).) 

Plaintiff was on actual and/or constructive notice of Defendant’s alleged malpractice by no later than May of 2022. By that time, Plaintiff and her attorneys in the underlying probate action were served with the objections/petitions challenging her uncle’s testamentary documents as facially invalid.

Plaintiff suffered actual injury because of the alleged malpractice upon the passing of her uncle in September 2021, or affording Plaintiff every benefit of the doubt, by May of 2022 when she started incurring attorney’s fees and litigation costs in the underlying probate action.

Plaintiff did not file the instant malpractice action against Defendant until December 2, 2024; one year and seven months after the limitations period had already expired in May 2023. Plaintiff’s Complaint is time barred as a matter of law. The Demurrer should be sustained without leave to amend.

Some background. Abraham Safina created the Abraham Safina Trust in 1995. Under the Fifth section of the Abraham Trust, the settlor, granted to his brothers William Safina and Michael Safina a limited power of appointment to designate the remaining trust assets upon the survivor’s death, expressly prohibited either of them from exercising the power on behalf of, or in favor of, himself, his estate, his creditors, or the creditors of his estate, and also provided that in the event that the survivor should fail, omit, or otherwise default in the exercise of the power of appointment, that the Trust estate shall be distributed to Abraham’s heirs at law, excluding his siblings, but specifically including his nieces and nephews.

The Trust was amended in 2011 by way of the First Amendment. The purpose of the 2011 amendment was specifically explained in the Trust as follows: “Because Michael Safina filed a lawsuit against Settlor Abraham Safina, it is the intent of Settlor Abraham Safina to amend the Abraham Safina Trust to delete any references to Michael Safina as an income beneficiary of the Trust, to revoke any powers of appointment in favor of Michael Safina in the Trust, and to remove Michael Safina as a Trustee of the Trust.”

Under the terms of the Amended Trust, Abraham continued to prohibit William Safina from exercising the limited power of appointment on behalf of, or in favor of himself, his estate, his creditors or the creditors of his estate. The Amended Trust further provided that if William Safina survived but died intestate or failed to properly exercise the limited power of appointment, the remaining trust assets of the Trust shall be distributed to Abrahams’ heirs at law upon William’s death, and again specifically excluded his siblings but specifically included his nieces and nephews as his heirs in law.

Abraham Safina died in 2013 and, according to his Amended Trust, William Safina became the successor trustee with the limited power of appointment as set forth therein.

The Complaint alleges that, in 2015, it was the intention of William Safina that Plaintiff,

who was his niece, would be the beneficiary of the remaining principal of the Abraham Safina Trust and he wanted to exercise his power of appointment to effectuate his intention. To do so, the Complaint alleges that William Safina retained Defendant to advise him concerning revisions to his estate plans, including his wills and trusts, and to create testamentary documents in accordance with his instructions. Plaintiff contends that Defendant was instructed by [William] Safina to create testamentary instruments that would result in plaintiff becoming successor trustee of the Abraham Safina Trust and the sole beneficiary thereof.

On April 13, 2015, William Safina executed The Amended and Restated William Safina

Revocable Trust (“William Safina Trust”). Additionally, on that same date, William Safina also signed his Last Will and Testament (“William Safina Will.”). In the William Safina Will, allegedly drafted by Defendant, William purported to exercise his power of appointment under the Abraham Safina Trust as follows:

“I hereby exercise my power of appointment by directing the Trustee of the [Abraham Safina] Trust to distribute the remaining principal thereof to the Trustee of the William Safina Trust executed by me on the 7th day of March, 1995, as amended and restated in its entirety of the same date as, but immediately before, the execution of this will, to be added to and disposed of as part of the trusts created under the provisions of that trust instrument, including any amendments to it in effect at the time of my death.”

William Safina passed away in September 2021.

On February 8, 2022, Plaintiff as successor trustee of the William Safina Trust, filed a verified petition to appoint and instruct the successor trustee of the Abraham Safina Trust, in a matter entitled In re the Matter of The Abraham Safina Trust, Santa Barbara County Superior Court Case No. 22PR00058 (the “Probate Action”).

In that petition, Plaintiff alleged that William Safina was given the power of appointment under Abraham Safina Trust and, in the William Safina Will, he exercised his power of appointment and named the Successor Trustee of the William Safina Revocable Trust as the sole beneficiary of the Abraham Safina Trust. Plaintiff further alleged that, in her capacity as Successor Trustee of the William Safina Revocable Trust she had standing under Probate Code section 17200(a) as the only beneficiary to the Abraham Safina Trust.

On March 21, 2022, Abraham Safina’s sole surviving sister and his other nieces and nephews filed preliminary objections to Plaintiff’s petition in the Probate Action. In their preliminary objections, the objectors alleged that William Safina’s purported exercise of

the power of appointment through his Will was invalid on its face for a variety of reasons including the following: The purported Power of Appointment proffered by Petitioner purports to exercise a Power of Appointment in a 1995 Trust by the Decedent, Abraham Safina, that the Petition alleges was amended and superseded in 2011. Consequently, the alleged appointment under a superseded instrument necessarily exercises nothing.

Moreover, the instrument proffered by Petitioner, the alleged Will of William Safina, purports to exercise a Power of Appointment in a manner that is contrary to the express terms of the 1995 Trust by Abraham Safina, as well as contrary to the terms of the 2011 First Amendment to Declaration of Trust.

Both instruments, the purported 1995 Trust and the 2011 Amendment, require that the Power of Appointment be exercised in favor of anyone or one or more charitable organizations. The purported Power of Appointment proffered by Petitioner fails to do this. Both instruments expressly prohibit the Power of Appointment from being exercised in favor of William Safina's own estate, or William Safina’s creditors, or the creditors of William Safina’s estate. The purported Power of Appointment proffered by Petitioner, to give the trust estate of the Abraham Safina Trust to William Safina's own trust estate, purports to do exactly what is prohibited by Abraham’s Power of Appointment. 

On May 5, 2022, a petition was filed in the Probate Action by one of the objectors, Reuben Shipkowitz (Abraham’s nephew), seeking to invalidate William Safina’s exercise of power of appointment under the Abraham Safina Trust. That petition alleged that the Abraham Safina Trust granted William Safina only a limited power of appointment under which William could essentially designate any person to receive the remainder of the Trust estate after William’s death, so long as William did not exercise the power to benefit himself, his estate, or his creditors.

However, in direct violation of the Trust terms, William attempted to exercise the power of appointment by designating the successor trustee of his revocable living trust as the remainder beneficiary of the Abraham Trust. In doing so, William attempted to benefit himself, his estate, and his creditors in direct contravention of the Trust terms.

On December 19, 2022, Abraham’s sole surviving sister and his other nephews and nieces

filed a notice of joinder and joinder to the May 5 petition to invalidate William’s exercise of the power of appointment. In that joinder, it was again alleged that Petitioners join in the allegations of the Petition Determining Invalidity of Power of Appointment that the purported exercise by William Safina of an alleged power of appointment under the

Abraham Trust to favor himself, his estate and his creditors, was a violation of the terms of the Abraham Safina Trust and that William Safina therefore defaulted in the proper exercise of the limited power of appointment for the Abraham Trust, and upon William’s death, Abraham’s heirs at law are to receive the remainder of the Abraham Trust estate.

As a party to the Probate Action, Plaintiff was on notice of the foregoing and all other filings

by the objectors. She opposed the objectors’ petitions. Among other things, Plaintiff filed a

consolidated opposition to the objectors’ petitions.

On June 9, 2023, all parties to the Probate Action, including Plaintiff, submitted a joint status report to the probate court expressing their agreement for the case to proceed as follows:

The Parties agree that it would be beneficial for the Court to determine the validity

of the exercise or purported exercise by William Safina of any power of appointment granted by Abraham Safina as a legal question based solely upon the face of the relevant documents, assuming, without determining, the validity of those documents. The vehicle for doing so would be through a hearing on the Amended Petition for Instructions and Notice of Joinder and Joinder in Petitioner Reuben Shipkowitz’s Verified Petition for an Order Determining the Invalidity of William Safina’s Exercise of Power of Appointment.

The hearing on the issue of determining the validity of William Safina’s exercise of power of appointment as raised in the Amended Petition would be based upon the face and legal effect of documents stipulated to by the Parties that could be considered by the Court pursuant to a hearing and briefing schedule agreed to by the Parties and approved by the Court.

On December 8, 2023, after extensive briefing by the parties (including Plaintiff), the Court

in the Probate Action granted the objectors’ petitions/joinders and determined that the power of appointment under the Abraham Safina Trust that was purportedly exercised in the William Safina Will was invalid and that Abraham’s heirs at law, excluding his siblings, but including the issue of Abraham’s siblings, his nieces and nephews, were the rightful beneficiaries of the entire remaining trust estate of the Abraham Safina Trust.

The probate court explained that under the terms of the Abraham Safina Trust and the 2011 Amended Abraham Safina Trust, “William Safina was not a beneficiary of the Abraham Safina Trust following the death of Abraham Safina and was further precluded from making himself or his estate a beneficiary of the Abraham Safina Trust through the limited power of appointment.” Thus, “the Power of Appointment at issue here was, by name and by operation of law, a limited, or special, power of appointment.” Because the 2015 William Safina Will purported to exercise the power of appointment by transferring the Abraham Safina Trust assets to William’s own trust, it did not “observe the limitations of the creating instrument and was therefore invalid as a matter of law.”

Finally, the probate court determined that William Safina’s exercise of the power of

appointment set forth in his Will was also invalid on its face because it solely referred to the 1995 Abraham Safina Trust as granting him said power.  The 2011 Amended Abraham Safina Trust, however, “expressly revoked and replaced the entire provisions granting the power of appointment set forth in the 1995 Abraham Safina Trust instrument and substituted it for an entirely new paragraph. By purporting to exercise a power of appointment under another document other than the 2011 Amendment to the Abraham Safina Trust, William Safina failed to specifically reference the power of appointment given to him in the only instrument that granted him a power of appointment at the time that he purported to exercise the power of appointment."

Plaintiff filed the instant action on December 2, 2024.  In the Complaint, Plaintiff alleges that Defendant negligently drafted William Safina’s testamentary instruments, the legal and proximate result of which was that Plaintiff did not receive 8/9ths of the assets of the Abraham Safina Trust, causing economic damage to Plaintiff in the sum of $9,000,000. Plaintiff further alleges that Defendant’s alleged negligence in drafting the 2015 testamentary documents for William Safina also caused Plaintiff economic damage exceeding $250,000, because she was required to expend money for attorney fees and litigation costs that would not have been necessary if defendant had competently

created the testamentary documents that carried out William Safina’s instructions.

Plaintiff’s Complaint is time barred and that is the basis of the instant Demurrer.

Under Code of Civil Procedure section 430.30(a), when any ground for objection to a

complaint appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading. The statute of limitations is a ground for objection to a complaint for purposes of this provision and may be raised in a demurrer. (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 493.)

Although a court treats all properly pleaded material facts as admitted for the purposes of

deciding a general demurrer, it need not accept contentions, deductions, or conclusions of fact or law as true. Moreover, a court can also consider matters which may be judicially noticed. Sustaining a demurrer without leave to amend is within the trial court’s discretion if the plaintiff is unable to show there is a reasonable possibility any defect can be cured by

amendment. (Trader Sports, Inc. v. City of San Leandro (2001) 93 Cal.App.4th 37, 43-44.)

All such claims are to be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the attorney’s wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. (Code Civ. Proc. § 340.6(a).)  

The limitations period is tolled, however, for the period: (i) the plaintiff has not sustained

“actual injury;” (ii) the defendant attorney continues to represent plaintiff in the same matter; (iii) the defendant attorney willfully conceals the wrongful acts or omissions from plaintiff; (iv) the plaintiff is under a legal or physical disability rendering him unable to commence action; or (v) a dispute between the attorney and client concerning fees, costs, or both is pending resolution.  (Code Civ. Proc. § 340.6(a) (1)-(5).)  

Summarized: The limitations period [under Section 340.6] is one year from actual or imputed discovery, or four years (whichever is sooner), unless tolling applies. (Beal Bank, v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 508.)

The one-year limitations period of section 340.6 is triggered when a plaintiff discovers, or

through the use of reasonable diligences should have discovered, the facts constituting the alleged wrongful action or omission, and not when the plaintiff discovers that such acts constitute professional negligence. (McGee v. Weinberg (1979) 97 Cal.App.3d 798, 804.) Under Code of Civil Procedure section 340.6 the one-year period is triggered by the client’s discovery of the facts constituting the wrongful act or omission, not by his discovery that such facts constitute professional negligence, i.e., by discovery that a particular legal theory is applicable based on the known facts. It is irrelevant that the plaintiff is ignorant of his legal remedy or the legal theories underlying his cause of action. Thus, if one has suffered appreciable harm and knows or suspects that professional blundering is its cause, the fact that an attorney has not yet advised him does not postpone commencement of the limitations period. Worton v. Worton (1991) 234 Cal.App.3d 1638.

It has long been the rule in California that notice to an agent is notice to the principal.  This rule applies equally to an attorney-client relationship—i.e., both the actual and constructive knowledge of the attorney is imputed to his or her client.

Here, Plaintiff and her attorney in the Probate Action were placed on actual and/or constructive notice of Defendant’s alleged malpractice by no later than May of 2022, when the objectors filed their objections and a petition specifically setting forth the grounds why William Safina’s Will purporting to exercise the power of appointment under the Abraham Safina Trust was invalid on its face. Those documents were more than sufficient to cause

Plaintiff and her counsel to, at a minimum, suspect professional malpractice.

In her consolidated opposition to the objectors’ petitions/joinders, Plaintiff recognized the real possibility that William Safina’s exercise of the power of appointment may be held invalid by the probate court and, therefore, she sought equitable relief in the alternative.

During counsel’s meet and confer in advance of the filing of this Demurrer, Plaintiff’s

attorney took the position that the one-year limitations period did not accrue until the probate court’s December 8, 2023, ruling finding William Safina’s exercise of the power of appointment to be invalid. According to counsel, that ruling was what placed Plaintiff on notice of Defendant’s alleged malpractice. That is not how the discovery rule works under section 340.6. The limitations period is triggered by discovery of facts, and not when the legal impact of those facts comes to fruition. 

The appellate court’s opinion in Sharon v. Porter (2019) 41 Cal.App.5th 1 is instructive and dispositive. In Sharon, the attorney defendant represented the plaintiff Elise Sharon in a lawsuit resulting in a 2008 default judgment entered in favor of Sharon. In October 2015, the attorney for the judgment debtor wrote to Sharon, claiming that the default judgment was void. In November 2015, Sharon’s new attorney correctly opined that the judgment was indeed void. In September 2016, the judgment debtor filed a motion to vacate the judgment, which was granted by the court the following month. In May 2017, Sharon filed a legal malpractice lawsuit against the attorney defendant. During a court trial on stipulated facts, the trial court found that the default judgment had been valid until it was vacated. The court also found the statute of limitations applicable to Sharon’s

lawsuit had been tolled until “actual injury” first occurred in September 2016, when Sharon began incurring hourly attorney fees to oppose the judgment debtor’s motion to vacate the judgment. The court of appeal reversed, however, finding that the default judgment was void independent of it being vacated by the underlying court. The court determined that, discovery of the void judgment and whatever injury resulted therefrom occurred at least by November 2015 when the judgment debtor wrote to Sharon and her new attorney claiming the judgment was void. The statute ran one year from that date. Sharon’s 2017 lawsuit was time-barred.

Here, the objectors’ objections and petition filed in the Probate Action on March 21, 2022

and May 5, 2022, respectively, were more than sufficient to place Plaintiff and her

counsel on actual and/or inquiry notice of the facts constituting Defendant’s alleged wrongful acts or omissions to trigger the one-year limitations period under section 340.6. Despite the foregoing knowledge that she had since May of 2022, however, Plaintiff did not take any action against Defendant for well over two years. She did not file a lawsuit against Defendant or seek to secure a tolling agreement from Defendant. While Plaintiff’s filing of this lawsuit on December 2, 2024, was within one-year of the probate court’s December 8, 2023, order declaring William Safina’s purported exercise of power of appointment to be invalid, it was over nineteen months past the expiration of the one-year limitations period for Plaintiff’s legal malpractice claim against Defendant.

None of the tolling provisions of section 340.6 bring Plaintiff’s legal malpractice claim

against Defendant within the one-year limitations period.

Plaintiff suffered “actual injury” in September 2021. “When 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.”

When the alleged malpractice is claimed because of a negligently drawn will or trust,

the courts have found the purported beneficiary under that will/trust to have suffered “actual injury” upon the passing of the testator/settlor, or when said purported beneficiary is compelled to incur attorney fees and costs because of the malpractice.

Here, Plaintiff suffered “actual injury” upon William Safina’s passing in September 2021.

At that time, Plaintiff lost her purported ability to have William cure the alleged errors/defects in his testamentary instruments. Alternatively—and affording her every benefit of the doubt; Plaintiff suffered “actual injury” by no later than the time when the objectors filed their objections and petition in the Probate Action on March 21, 2022, and May 5, 2022, respectively. Those objections/petition weakened Plaintiff’s position to enforce William Safina’s purported exercise of the power of appointment.

Additionally, Plaintiff was compelled to start incurring attorney’s fees and costs to oppose those objections/petitions. Indeed, the Complaint herein specifically contends that Defendant’s alleged negligence was “the legal and proximate cause of additional economic damage to plaintiff who was required to expend money for attorney fees and litigation costs that would not have been necessary if defendant had competently created the testamentary documents that carried out William Safina’s instructions. Based on matters alleged in the Complaint and those subject to judicial notice, Plaintiff suffered actual injury in September 2021, or alternatively by no later than May 5, 2022, both of which are well over a year before the date the instant lawsuit was filed (December 2, 2024).

Other than Defendant’s alleged representation of William Safina in 2015, the Complaint is

devoid of any facts suggesting any other representation provided by Defendant to William Safina or Plaintiff. Moreover, Plaintiff was represented in the Probate Action by attorney Stephen E. Penner, and not Defendant. Thus, the continued representation tolling provision of section 340.6 is not applicable.

The Complaint also is devoid of any facts that could support tolling by intentional and

willful concealment of the malpractice by Defendant, a legal or physical disability preventing Plaintiff from filing action, or a pending dispute over fees between Plaintiff and Defendant.  

Based on the matters alleged in the Complaint and those subject to judicial notice, it cannot

be disputed that Plaintiff was on actual and/or constructive notice of Defendant’s alleged

malpractice, and that she had suffered actual injury as a result of said malpractice, by no later than May 2022. Under Code of Civil Procedure section 340.6, Plaintiff had one year to file a malpractice claim against Defendant or, alternatively, secure a tolling agreement from Defendant. Defendant requests that the Court sustain her Demurer without leave to amend.    

Supported by the Declaration Michael Feenberg re: meet and confer.  

Plaintiff’s Opposition

Filed 5/21/25; 62 pages; summarized: The one-year statute of limitations on a claim of legal malpractice commences when a reasonable person (or lawyer) discovers facts constituting the attorney’s wrongdoing and suffers actual injury. (Code of Civ. Proc. §340.6.) The filing of a trust contest arguing that a trust is defective does not prove that a reasonable person

(or lawyer) would conclude wrongdoing by the lawyer who drafted the trust. The possibility that the probate court would ultimately find that the trust was defective

does not start the statute of limitations. The law does not require a prophylactic

lawsuit to be filed when there is a good faith dispute whether a trust is defective.

The demurrer cites Worton v. Worton (1991) 234 Cal.App.3d 1638, 1650 for the proposition that “Thus, if one has suffered appreciable harm and knows or suspects that professional blundering is its cause, the fact that an attorney has not yet advised him does not postpone commencement of the limitations period.”  However, the demurrer provides no evidence that plaintiff had reason to suspect that defendant had blundered. The demurrer argues that plaintiff is bound by the knowledge of the attorneys who were representing her.

As authority, defendant cites Sharon v. Porter (2019) 41 Cal.App.5th 1, as “instructive and dispositive.” Although it may be instructive, it is not dispositive.

The Sharon opinion does not support the demurrer.

In Sharon, supra, attorney Porter represented Sharon. He drafted a complaint against Perot that did not properly state the damages sought. When there was no responsive pleading to the complaint, a default judgment was obtained for an amount of money that was not stated in the complaint. Sharon, the plaintiff-client hired another lawyer - Goldman, to enforce the judgment. “In October 2015, an attorney representing Perot wrote a letter to Goldman arguing the judgment was void and unenforceable because the underlying complaint had not specified the amount of money damages sought against Perot as required by [Code of Civ. Proc. section 580.3].

Goldman forwarded the information to Porter. In November 2015, several e-mails were exchanged between Goldman and Porter wherein Goldman opined to Porter that the judgment was indeed void.” (Sharon v. Porter (2019) 41 Cal.App.5th 1, 4–5.)

These facts led the Court of Appeal to find that because there was a concession by plaintiff’s lawyer in November 2015 that the judgment was void, that is when the one-year statute of limitations commenced, and not later when a judge ultimately ruled that it was void.

The facts of this underlying probate case do not contain any such concession.

To the contrary, plaintiff’s lawyers argued that the trust had a valid power of appointment and that the objectors were wrong regarding the “technicality.”

This argument is contained in defendant’s Exhibit 5, entitled “Consolidated Opposition to All Petitions for an Order Determining the Invalidity of William Safina's Exercise of Power of Appointment, [etc.]” At page 3, lines 19-20, plaintiff’s attorney argues that the claimed “technicality” does not invalidate the power of appointment: “Not only are PETITIONERS and REUBEN actually wrong about the technicality . . . .” plaintiff continues to make the same argument, as demonstrated by her opening brief on appeal, namely Point VII at page 31:VII:

“Bill’s Exercise of the Power of Appointment Made Sufficient Reference to the Power Being Exercised. He Was Not Required to Refer to the Instrument Granting Him that Power. The Probate Court Erred by Invalidating the Exercise on this Ground.” The Opening Brief is attached as plaintiff’s Exhibit “A” to the request for judicial notice.

Defendant argues that the defect in the trust was recognized by plaintiff’s attorneys because they made an alternative argument regarding the law that applies if the trust had a technical error. It is true that plaintiff’s alternative argument was that the court was required to give effect to the trustor’s intent to cure a technical defect, if one existed. However, that is far from a concession that there was a defect. Rather, it is competent advocacy in case the court disagreed with the primary argument that there was no defect. Accordingly, it does not establish, as a matter of law, that Plaintiff was on notice of an error by defendant that likely would invalidate William Safina’s power of appointment. 

Defendant argues that the knowledge of plaintiff’s lawyers is imputed to Plaintiff. However, unlike the situation in Sharon v. Porter, supra, there is no evidence that Plaintiff’s lawyers knew or should have known that William’s trust and power of appointment were defective. To the contrary, they continue to assert on appeal that the trust and power of appointment were valid and that the probate court was required to uphold the power of appointment.

If there was (and is) a good faith belief that the law required the probate court to find the power of appointment to be valid and give effect to the trustor’s intent, why would a reasonable person (and their legal counsel) believe that an error by William’s attorney (defendant herein) would cause harm to a person in Plaintiff’s position? Probate contests are hardly uncommon. And the parties (represented by competent counsel) argue that their respective positions are the correct ones.

Ultimately, a judge decides and orders entry of a judgment. But until that happens, and in the absence of a concession or an unavoidable outcome, any prediction would be speculative.

“Actual injury” does not include “speculative and contingent injuries that do not yet exist.”  (Shaoxing City Maolong Wuzhong Down Products, Ltd. v. Keehn & Associates, APC (2015) 238 Cal.App.4th 1031, 1036.)

In ITT Small Business Finance Corp. v. Niles (1994) 9 Cal.4th 245, the Supreme Court held that, in a transactional legal malpractice case, when adequacy of documentation prepared by an attorney is disputed, the action does not accrue until entry of an adverse judgment. The Court then overruled in ITT in Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 763, holding that “The resolution of litigation related to alleged malpractice may or may not mark the point at which a plaintiff first sustains actual injury under section 340.6.” The Jordache Court concluded that “only the facts and circumstances of each case, analyzed in light of the alleged negligence and its consequences as revealed by the evidence, can establish when the plaintiff sustained actual injury under section 340.6.”

Accordingly, “[a] demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred.” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1232.)

Defendant cites Horne v. Peckham (1979) 97 Cal.App.3d 404, 417 for that court’s comment that “No actual and true damage flowed from defendant's negligence until the trust was challenged and plaintiffs were forced to pay legal fees to defend the negligently drafted trust documents.” However, Horne does not establish a rule that, in all cases, when a challenge is made to the validity of a trust, the statute of limitations commences to run against the lawyer who drafted the trust. In Horne, an attorney drafted a trust and there was a subsequent IRS audit that led to the need to hire a lawyer to defend. The facts were adduced at the legal malpractice trial. There was no discussion in the Horne appellate opinion of what facts should have alerted the plaintiffs or their lawyers to conclude that there were “negligently drafted trust documents.” 

Defendant argues that plaintiff was required to file a lawsuit and seek tolling, based on the comments of the court in Sharon, supra, 41 Cal.App.5th 1, 11: “It is true our legal conclusion, in effect, put Sharon in the awkward position of having to file a malpractice lawsuit based upon a void judgment prior to the superior court confirming the judgment was indeed void.” But that comment was based on the fact that there had been a concession that the judgment was void. Sharon, supra, does not stand for the proposition that because there is a possibility that a trust might be found to be defective, a legal malpractice lawsuit must be filed when there is an objection.

Lawyers should not be subject to prophylactic lawsuits because of the possibility that a document they drafted might be found defective and unenforceable.

There must be a good faith belief that the lawyer did something wrong. For example,

in Dieckmann v. Superior Court (1985) 175 Cal.App.3d 345, 363, the court dealt with

whether a lawyer should have named a doctor as a defendant in a medical malpractice

case. The court held: “Section 474 allows a plaintiff in good faith to delay suing particular persons as named defendants until he has knowledge of sufficient facts to cause a reasonable person to believe liability is probable.” The key word in the quote is “probable” and it is important that the court did not use the word, “possible.”

Malicious prosecution law is similar. A lawyer must have probable cause to name a defendant. “Probable cause is synonymous with reasonable cause. One who commences a civil suit acts upon probable cause if he has an honest belief, founded upon facts sufficiently strong to justify his belief, that grounds exist for the proceeding.” (Masterson v. Pig'n Whistle Corp. (1958) 161 Cal.App.2d 323, 335.)

The complaint contains no allegations that can form the basis of a demurrer based on the statute of limitations. The documents from the underlying case do not conclusively prove that Plaintiff’s lawyers were on notice of wrongdoing by Defendant that would cause actual injury. Whether Plaintiff’s lawyers should have been on notice is a question of fact and not a conclusion that the court should reach in ruling on a demurrer. For this reason, the demurrer should be overruled.

Exhibit 1: Appellant’s Opening Brief in Shipkowitz v Berston written by Herb Fox

The Reply

Filed 5/28/ 9 pages; read and considered.

The Court’s Conclusions

The Court should find that the Demurrer should be sustained without leave to amend.

1. Realizing that Plaintiff cannot defeat the Demurrer on the merits, the opposition attempts to obfuscate the straightforward legal analysis applicable to the issues at hand by presenting erroneous and inapplicable legal arguments. Plaintiff ignores the law and instead argues that any authorities contrary to her interests must not be logical or correct.

2. As Defendant demonstrated in her moving papers, Plaintiff’s legal malpractice claim is subject to the one-year statute of limitations of section 340.6, and said claim is time barred based on the matters alleged in the Complaint and those subject to judicial notice (to which Plaintiff does not object), including the following:

3. In 2015, Plaintiff’s uncle William Safina retained Defendant to draft the William Safina Trust and William Safina Will, in order to exercise his power of appointment under the Abraham Safina Trust, making Plaintiff the sole beneficiary of the remaining principal of the Abraham Safina Trust upon her uncle’s passing.  Plaintiff alleges Defendant’s testamentary services were negligent.

4. In September 2021, William Safina passed away, purportedly making Plaintiff the sole beneficiary of the remaining principal of Abraham Safina Trust under the testamentary documents prepared by Defendant.  Plaintiff suffered “actual injury” at this moment as a matter of law. (Adams v. Paul (1995) 11 Cal.4th 583, 590.)

5. In May 2022, Abraham and William Safina’s sole surviving sister and their other nieces and nephews filed probate petitions challenging William Safina’s exercise of the power of appointment in the testamentary documents prepared by Defendant to be void and invalid “on its face” for a “variety of reasons.”  Plaintiff was on notice of facts giving rise to a claim for legal malpractice as a matter of law. (Sharon v. Porter (2019) Cal.App.5th 1; McGee v. Weinberg (1979) 97 Cal.App.3d 798.)

6. As a result of those petitions, Plaintiff alleges that she was required to expend over $250,000 in fees and litigation costs “that would not have been necessary if Defendant had competently created the testamentary documents that carried out William Safina’s instructions.”  Further admissions of “actual injury” sustained by Plaintiff are a matter of law.  (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739.)

7. The foregoing events that are either alleged in Plaintiff’s own Complaint or are subject to judicial notice, establish as a matter of law that Plaintiff was on actual and/or constructive notice of the facts constituting Defendant’s alleged malpractice by no later than May 2022.

8. Moreover, Plaintiff suffered “actual injury” because of the alleged malpractice upon the passing of William Safina in September 2021, or affording Plaintiff every benefit of the doubt, by May 2022 when she started incurring attorney’s fees and litigation costs in the underlying Probate Action.

9. The instant action that Plaintiff filed against Defendant on December 2, 2024, was one year and seven months past the May 2023 expiration of the one-year limitations period.

10. In the opposition, Plaintiff argues that the probate petitions challenging her uncle’s testamentary documents as facially invalid did not place her on actual or inquiry notice of Defendant’s malpractice because “plaintiff’s lawyers argued that the trust had a valid power of appointment and that the objectors were wrong regarding the ‘technicality’.” Plaintiff’s argument is wrong.

11. The one-year limitations period of section 340.6 is triggered when a plaintiff discovers, or using reasonable diligence should have discovered, the facts constituting the alleged wrongful action or omission, and not when the plaintiff discovers or realizes that such acts constitute professional negligence. (McGee v. Weinberg (1979) 97 Cal.App.3d 798, 804.) The underlying petitions placed Plaintiff on notice of the factual basis of the challenges against the testamentary documents as facially invalid/void.

12. It is irrelevant whether Plaintiff at the time believed that such facts amounted to legal malpractice.

13. Plaintiff also argues that the limitations period was tolled because she did not sustain actual injury from the probate petitions challenging her uncle’s testamentary documents. 14. According to Plaintiff, “actual injury does not occur when the outcome of litigation cannot be predicted.”

15. Plaintiff is wrong and her argument that she does not suffer actual injury until resolution of the probate petitions is one that has been rejected by the California courts. It is settled that quantifiable financial loss is not determinative as to when actual injury occurred.

16. A legal malpractice plaintiff may suffer actual injury without any prior adjudication, judgment or settlement because the relevant consideration is the fact of damage, not the amount. Neither uncertainty of amount nor difficulty of proof renders the actual injury speculative or inchoate.

17. It has been made clear by the California Supreme Court, actual injury sufficient to commence the one-year limitations period is any appreciable and actual harm flowing from the attorney’s negligent conduct. (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 750.)

18. Plaintiff’s argument that “she was not required to file a prophylactic lawsuit for legal malpractice” is wrong and contrary to applicable law.  California case law makes clear that Plaintiff was absolutely required to either obtain a tolling agreement from Defendant (which she did not do) or file a “prophylactic” lawsuit timely. 

19. As articulated in Sharon: “It is true our legal conclusion, in effect, put Sharon in the awkward position of having to file a malpractice lawsuit based upon a void judgment prior to the superior court confirming the judgment was indeed void. However, such a situation did not justify tolling based upon any of the exclusive grounds under section 340.6.” (41 Cal.App.5th at 11; see also Adams v. Paul (1995) 11 Cal.4th 583, 593 [explaining that concerns over potential “premature filing of legal malpractice claims” can be readily overcome because “trial courts have inherent authority to stay malpractice suits, holding them in abeyance pending resolution of underlying litigation” and “a party may plead in the alternative and may make inconsistent allegations”].) 

20. Plaintiff was obligated to file the action within one year of the challenge of the validity of the testamentary documents in May of 2022. 

21. She failed to do so.

22. The sole cause of action for legal malpractice asserted in Plaintiff’s Complaint is fatally flawed as a matter of law and said flaw cannot be cured with a leave to amend.

23. There are very competent lawyers here and there has been no showing, or even a suggestion, how the Complaint might conceivably be amended considering the facts.

24. The Court will sustain the Demurrer without leave to amend.

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[1] The Court apologizes for any grammatical and typographical errors in this ruling.

[2] The Complaint filed 12/2/24 is crafted as one cause of action for legal malpractice; alleges Defendants negligently drafted William Safina’s testamentary instruments, the legal and proximate result of which was that Plaintiff did not receive 8/9ths of the assets of the Abraham Safina Trust, causing economic damage to Plaintiff in a sum exceeding $9,000,000