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Tentative Ruling
Judge Thomas Anderle
Department 3 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Roger Artigo et al vs Katherine Teall et al

Case No: 1416335
Hearing Date: Tue May 13, 2014 9:30

Nature of Proceedings: Demurrer First Amend.Complt

Demurrer by defendant Artigo to Cabaron FAC

 

Ruling

 

The demurrer is overruled, and defendant Artigo is ordered to answer on or before May 20, 2014.

 

Note to Sunovion: The Court is aware that there is another demurrer set for hearing next week (5/20), filed by Artigo’s employer, Sunovion Pharmaceuticals. It is based upon the same grounds as this demurrer. The Court will inquire of Sunovion whether—in light of this ruling—their demurrer will be going forward next week.

 

Background

 

This case arises out of an automobile accident which occurred on 4/2/11 at the intersection of SR 154 with East Camino Cielo. The original complaint was filed on 3/28/13, by Roger Artigo, Raquel Artigo, Narzal Cabaron, and Rosalinda Cabaron, all represented by attorney Julian Ducre. Named as defendants were Katherine Teall, who operated the opposing vehicle, and Paul Teall, its owner. The complaint was a Judicial Council form complaint, which alleged at ¶ 3 that each plaintiff is a competent adult. Where ¶ 3 provided an opportunity for the plaintiffs to identify specific plaintiffs who are not competent adults, the relevant boxes remained unchecked.

 

On 10/29/13, attorney James McCallion substituted into the action as attorneys for Narzal Cabaron and Rosalinda Cabaron only, and filed DOE amendments naming Roger C. Artigo and Sunovion Pharmaceuticals, Inc. as defendants. Roger Artigo answered and filed a cross-complaint on 12/17/13, represented by the Wood Smith law firm. On 1/7/14, attorney McCallion filed applications for orders for appointment of Raquel Cabaron Artigo as guardian ad litem for both Rosalinda Cabaron and Narzal Cabaron, on the basis that each is an incompetent person.

 

As a defendant, Roger C. Artigo moved for judgment on the pleadings on the complaint as it was being asserted by the Cabaron plaintiffs, contending that the action against him was barred by the statute of limitations. He contended that the Cabarons at all times knew that he was the driver of the vehicle in which they were passengers at the time of the accident in which they were injured, and that there could be no tolling based upon alleged incapacity because they were bound by the original Judicial Council Form Complaint allegation that all plaintiffs were competent adults.

 

The Court granted the motion for judgment on the pleadings on 2/25/14, allowing the Cabarons leave to amend, with instructions that to the extent that the amended allegations contradicted those in the original complaint, the amended pleading should include allegations explaining the reasons for the inconsistent allegations. The Court noted further that adequate pleading of incompetency would still preserve the statute of limitations defense for trial, should it be asserted as an affirmative defense.

 

The Cabaron plaintiffs filed their own, separate First Amended Complaint on 3/18/14. Each is alleged to be an adult for whom a guardian or conservator of the estate or a guardian ad litem has been appointed. In an attachment to the form complaint, the FAC alleges in detail that their former attorney is a criminal attorney with limited civil experience who, while he knew both had sustained serious injuries in the accident, had significant memory issues, and required assistance to respond to discovery, he did not review their medical records, and did not appreciate their incompetence or have guardians at litem appointed on their behalf. The attachment alleges that had the medical records been consulted, they would have shown that Narzal Cabaron suffered a closed head injury in the accident, resulting in a cognitive disorder which left him incapacitated and unable to make decisions without assistance. Further, his personal physician had diagnosed him with dementia. A review of Rosalina Cabaron’s medical records would have shown that pre-accident scans showed evidence of old infarcts in her frontal lobes, and she also suffered a brain injury in, and had a craniotomy after, the accident. Both were also unable to care for themselves, take medication without supervision, handle their own affairs, transport themselves, cook, clean, and could not be permitted to go to a public restroom without supervision, out of fear they would become lost. Raquel Cabaron Artigo has been paid by In Home Supportive Services to provide the Cabarons with in-home care since 2009. The care she has been required to provide has increased exponentially since the accident. They need assistance bathing, cannot cook for fear of starting a fire, cannot go anywhere unsupervised for fear they will get lost, cannot be trusted with medication for fear they either will not take it at all or will take too much, and need assistance getting into and out of bed. Narzal Cabaron no longer recognizes old friends. While former counsel knew all of this information, he failed to appreciate its significance.

 

Current counsel is experienced in personal injury litigation, and substituted into the case on October 2013, and upon review of the Cabarons’ medical records revealing the nature and extent of their injuries and incapacity, sought to have guardians ad litem appointed on their behalf.

 

Demurrer

 

Roger Artigo, as a defendant, has demurred to the Cabarons’ FAC on statute of limitations grounds. As he did in the motion for judgment on the pleadings, he asserts that the claim that the limitations period was tolled due to the Cabarons’ incompetence fails because they admitted in their original complaint that they were competent. He asserts further that the FAC allegations that the admission resulted from their original attorney’s inadvertence or excusable neglect fails as a matter of law.

 

Artigo first argues that the Doe defendant cannot relate back to the original complaint, for statute of limitations purposes, because the Cabarons necessarily were aware of his identity and involvement in the accident. Relation back requires that a plaintiff be genuinely ignorant of the defendant’s identity or the facts rendering defendant liable when the original complaint was filed. Since Artigo was first named as a defendant seven months after the statute of limitations expired, the Doe amendment is barred by the statute of limitations.

 

Artigo then argues that the limitation period could not be tolled, since the Cabarons admitted in their original complaint that they were competent, and have failed to provide any reasonable explanation for making that admission. While a plaintiff can avoid the effect of an earlier admission by alleging facts explaining that admission, the explanation must be satisfactory, or else the amended pleading is treated as a sham and disregarded. Artigo contends the FAC failed to set forth any reasonable explanation for the prior admission of competence. Artigo asserts that even if the Cabarons were in fact incompetent, they cannot evade the statute of limitations based on the claim that their original attorney’s failure to allege that fact was inadvertent or excusable, since relief from a Court order—such as this Court’s prior order granting the motion for judgment on the pleadings—requires the party seeking relief to meet the burden of showing the mistake could not have been avoided through the exercise of ordinary care. A request for relief under Sec6tion 473 based upon attorney error requires an inquiry of whether a reasonably prudent attorney might have made the same error under similar circumstances, and attorney neglect is imputed to the client. If it is inexcusable, there is no basis for relief under 473. An attorney’s failure to discharge routine professional duties is not excusable; an attorney’s mistake of law is not ground for relief when it results from professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law. Artigo argues that it simply is not plausible that, if the Cabarons’ impairments are as severe as they claim, their original attorney would have been unaware of it; he could not possibly have not recognized their impairment. They argue his failure to recognize the extent of their impairment because he did not read or understand their medical records is “ridiculous on its face.”  Any misconception as to the need to assert their incompetence was patently unreasonable.

 

Finally, Artigo asserts they should not be allowed leave to amend.

 

Opposition

 

The Cabarons have opposed the demurrer, asserting that the demurrer asks the Court to go outside the scope of the pleadings, in asserting that its allegations could not possibly be true. The demurrer asks the Court to assume former counsel observed the Cabarons’ inability to use public restrooms, cook, clean, bathe, and assumes an attorney-client fee agreement existed in spite of no such language in the pleading. The Cabarons’ incompetency is a factual allegation, not a legal theory, and the failure of their former attorney to allege it is not akin to ignorance of the law, mistake of law, unjustified negligence in discovering the law, or professional negligence. Since the failure to allege incompetence is a factual error, the only determination for the Court to make is whether the FAC allegations are sham pleadings. The scope of an inquiry on demurrer is limited to the face of the pleadings, and not evidence or other extrinsic matters.

 

The Cabarons assert they have stated sufficient facts to show their prior counsel’s failure to allege their incompetency was due to mistake or inadvertence, given that he is a criminal defense attorney with limited civil experience, failed to read or understand the medical records, and did not understand that his clients were incompetent and need of a GAL. Specific allegations with respect to each plaintiff shows the medical records could have revealed the incompetence, had the records been understood. Other specific allegations state the Cabarons could not care for themselves in basic ways, both physically and financially, and both had significant memory and cognitive issues. This Court has already ruled that the prior allegation of competence is not necessarily binding for all time. For purposes of the demurrer, the facts are assumed true, and the Cabarons are entitled to the tolling provisions of 352(a) on demurrer. Incompetency cannot be adjudicated on demurrer, as Artigo suggests.

 

The Cabarons emphasize that competence is a medical issue, and an attorney is not presumed to be able to recognize it any more than any other lay person. The law provides relief from mistakes of fact. As a result, the explanation for the inconsistency in the allegations related to competence is sufficient, and the demurrer should be overruled.

 

Reply

 

Artigo argues that the Cabarons cannot be entitled to relief under CCP § 473(b), because they have never moved for or submitted any evidence in support of such relief. Even assuming they could seek relief just based on allegations in their FAC, those allegations do not show an entitlement to 473 relief. Artigo asserts that the failure to allege the Cabarons incompetence could not have resulted from excusable neglect or inadvertence, and any neglect was inexcusable. No reasonably prudent attorney would have made the same error under similar circumstances, and conduct falling below the applicable standard of care such as failing to advance an argument properly does not meet the standards. Artigo argues that when an attorney is aware of circumstances requiring further investigation, failure to conduct such investigation falls below the standard of care. He asserts that former counsel’s failure to investigate whether his clients actually were competent to prosecute their action without the appointment of a guardian or conservator could not have been excusable, in that he had to have known of the nature of their injuries. If he did not understand their medical records, he should have hired an expert to help him understand. That he was a criminal attorney with little civil experience does not excuse his conduct, since it is the duty of an attorney to refer his client to a specialist if a reasonably prudent practitioner would do so under those circumstances.

 

Artigo asserts that written fee agreements are required in California, and plaintiffs cannot evade the consequences of their admission that they were competent by arguing their attorney did not negotiate a fee agreement with them. If he didn’t, he violated the law. If he did, he should have seen that they were not competent.

 

Artigo asserts that arguing the original attorney’s mistake of fact fails. A mistake of fact can preclude 473 relief if it resulted from a failure to investigate under circumstances where a reasonable person would have done so. Further, former counsel’s representation involved multiple mistakes of law inextricably intertwined with his failure to plead the Cabarons’ incompetence, including the failure to recognize he had a fundamental conflict of interest in representing both Artigo and the Cabaron plaintiffs in their action against Teall, when the Cabarons obviously had potential claims against him and his employer. That conflict of interest has been especially egregious because it resulted in significant harm to Artigo, and Artigo did not have notice that the issue of their competence would be material until their new attorney obtained guardians ad litem for them. He made a fundamental mistake of law in failing to assert the Cabarons’ claims against Artigo and his employer before the statute of limitations on them lapsed.

 

Artigo contends the demurrer is not based solely upon his contention that the Cabarons were actually competent, but that even if they were incompetent, their former attorney had actual and constructive notice of that fact and his failure to allege it in the original complaint was inexcusable under any standard.

 

Analysis

 

The demurrer is overruled. Defendant Artigo is ordered to answer on or before May 20, 2014.

 

The accident at issue occurred on 4/2/11. Five days before the expiration of the 2-year personal injury statute of limitations, attorney Ducre filed the original Judicial Council Form Complaint on behalf of driver Roger Artigo, and passengers Raquel Cabaron Artigo, Narzal Cabaron, and Rosalina Cabaron, naming as defendants the driver and owner of the adverse vehicle. The pre-printed form complaint alleges at ¶ 3 that “Each plaintiff named above is a competent adult.” It then, at ¶3.a. and ¶ 3.b., provides the ability for the pleader to check a box stating “except plaintiff (name),” and then check a further box indicating whether the plaintiff is a corporation, an unincorporated entity, a public entity, or a minor or adult for whom a guardian or conservator of the estate or a guardian ad litem has been appointed. In the original complaint, no boxes were checked, and no plaintiffs were identified as anything other than a competent adult.

 

The allegation that all plaintiffs were competent adults had no consequence in the action until after new counsel was obtained for the Cabaron plaintiffs, and that attorney, James McCallion, DOE amendments filed on 10/29/13 (almost exactly seven months after the complaint was filed) to name as defendants the driver of the vehicle in which they were passengers at the time of the accident, Roger C. Artigo and his employer, Sunovion Pharmaceuticals, Inc. Attorney McCallion proceeded to seek to have guardians ad litem appointed to act in the litigation on behalf of each of the Cabaron plaintiffs. However, attorney McCallion made no attempt to amend the complaint to explain why it was that the Cabaron plaintiffs could not earlier have had any knowledge that Artigo might have liability for their injuries (such that the addition of him as a defendant might relate back to the filing of the original complaint, in spite of the fact that they at all times knew he was the driver of the vehicle in which they were injured), or to correct the allegation that each plaintiff was a competent adult (so as to establish a possible tolling of the statute of limitations).

 

Artigo therefore moved for judgment on the pleadings contending that the action was barred by the statute of limitations, and urged that plaintiffs should be bound by their pleading admissions that they were at all times competent adults and should therefore be precluded from amending the complaint to allege otherwise. This Court granted the motion for judgment on the pleadings, but allowed leave to amend to allow the plaintiffs to explain the inconsistency in the allegations with respect to the competency of these plaintiffs. They did so, and this demurrer resulted, again raising the issue of the statute of limitations defense, and contending that plaintiffs’ explanation of the reasons for the original erroneous allegation of competence did not meet the standard of mistake or inadvertence, and plaintiffs should therefore be bound by their pleading admission.

 

Indeed, ordinarily a court will allow an amendment to cure a mistaken or inadvertent allegation. Savage v. Pacific Gas & Electric Co. (1993) 21 Cal.App.4th 434, 441. However, the Court is not required to accept an amendment that is not filed in good faith, is frivolous or sham. People v. Oken (1958) 159 Cal.App.2d 456, 462. As was noted by this Court when it allowed leave to amend after granting Artigo’s motion for judgment on the pleadings, the judicial policy against sham pleading allows the court to take judicial notice of a prior pleading, and to require the pleader to explain the consistency. If the party fails to do so, an inconsistent allegation may be disregarded, and the allegations of the superseded pleading may be read into the complaint. Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 384.

 

The Court believes that the original allegation of competence, supplied by the Judicial Council Form complaint, was the result of the Cabaron plaintiffs’ original counsel’s inadvertence. Certainly, the complaint was filed only days before the expiration of the 2-year personal injury statute of limitations, but it was clearly within that period. As a result, the competence or incompetence of an adult plaintiff would not have had great significance at that time, and could easily have been overlooked while counsel was attempting to state claims against the adverse driver and vehicle owner. The absence of an incompetence allegation did not prevent their subsequent attorney from obtaining the appointment of a guardian ad litem for each of these plaintiffs, and would not have precluded the filing of a request for Court approval of the compromise of a dependent adult’s claims, or the protected handling of any settlement or judgment proceeds for such dependent adult. To bind the Cabaron plaintiffs to an allegation that had little to no significance at the time it was made would work a substantial injustice. The purported failure of attorney Ducre to note the apparent conflict of interest in representing both Roger Artigo and the Cabaron plaintiffs is a separate issue, and does not convince this Court that it provides any legal reason to alter this Court’s perception of the inadvertent and/or mistaken nature of the competence allegation.

 

Certainly, as this Court noted previously, allowing the amended allegation to stand does not preclude either Artigo or Sunovion from asserting a statute of limitations defense at trial.

 

Please note: As a result of staffing limitations, the Court has experienced delays in routing time-sensitive documents, including oppositions and replies, for prompt review. The Court encourages the parties to email courtesy copies to the Court at: tanderle@sbcourts.org.