Filed 12/2 6 /23 Brooks v. Di ggs CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

MEHCAD BROOKS,

Plaintiff and Appellant

,

v.

RODNEY DIGGS et al.,

Defendant s and Respondents

. B 3 2 2575

(Los Angeles County Super. Ct. No. 2 0 STCV40105 )

A ppeal from order of the Superior Court of Los Angeles County, Holly J. Fujie, Judge. Affirmed

. Schneider & Branch, David K. Schneider ; Williams Iagmin and Jon R. Williams for Plaintiff and Appellant. Wood Smith Henning & Berman, Stephen M. Caine, Frances
M. O’Meara and Holly M. Teel for Defendants and Respondent s

.

______________________________2 In 2017, Mehcad Brooks (Brooks), an actor and writer, hired Rodney Diggs and his law firm, Ivie McNeill Wyatt Purcell & Diggs, A Professional Law Corporation (collectively, Diggs) to represent him in an arbitration against hi s former talent agency. Brooks contends that Diggs performed negligentl y , including by failing to timely designate expert witnesses and by agreeing to incomplete exhibit and witness lists for use at
the arbitration hearing. Brooks therefore fired Diggs , o btained

a continuance of the schedule d November 2017 hearing date, and retained replacement counsel to represent him in the arbitration proceedings. Notwithstanding the efforts of Brooks’s replacement
attorneys
, the arbitrator ruled against Brooks in a June 3, 2019 award. The superior court confirmed the award on February 28,
2020. Approximately eight months later, on October 20, 2020, Brooks filed a malpractic e action against Diggs. Diggs moved
for judgment on the pleadings under Code of Civil Procedure
section 438
, 1 arguing that Brooks ’s claims were untimely pursuant to section 340.6, subdivision (a). That subdivision establishes a

one

- year limitations period for malpractice claims, but also provides
that su ch claims are tolled until a plaintiff has “sustained actual injury.” (§ 340.6, subd. (a) (1) .) Brooks opposed the motion on the ground that he did not sustain actual injury until the superior court

1 All subsequent statutory references are to the Code of Civil Procedure. Section 438 provides, in relevant part, that a defendant may move for judgment on the pleadings on the ground that a plaintif f ’s complaint “does not state facts sufficient to constitute a cause of action against that defendant.” (§ 438, subd. (c)(1)(B)(ii ).)3

issued the February 28, 2020 order confirming the arbitr ation
award. The trial court granted Diggs’s motion, concluding that Brooks had “suffered actionable harm causing the statute of
limitations to accrue when the arbitrator issued the award on
June 3, 2019”

— i.e., more than one year before Brooks filed his

ma lpractice action

. (Capitalization omitted.) The court then issued
an order dismiss ing Brooks’s complaint with prejudice.
Brooks now asks us to reverse the trial court’s order dismissing his complaint , urging he did not sustain actual injury

— and thus his claims did not accrue

— until the superior court confirmed the arbitration award on February 28, 2020. Alternatively, he contends that even if he suffered actual injury

on June 3, 2019, the date of the arbitrat or’s award, an emergency tolling rule adopted by the Judicial Council in response to the
C OVID

- 19 pandemic renders his complaint timely. We conclude, however, that Brooks sustained actual injury no later than September 2018, when he incurred fees
from his replacement attorneys in their efforts to correct or mitigate Diggs’s alleged errors. (See Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 275

– 276 ( Pointe San Diego ) [“a plaintiff susta ins ‘actual injury’ when he or she incurs attorney
fees to rectify the problem caused by the prior attorney’s alleged negligence”].) Because Brooks’s claims accrued more than one

year before he filed his malpractice action against Diggs, his

c laims are untimely. We therefore affirm.4 FACTUAL SUMMARY AND PROCEDURAL HISTORY 2

Brooks is an actor and writer

. In the mid

- 2000s, he selected Innovative Artists Talent & Literary Agency, Inc. (Innovative) to represent him. Brooks contends that, as his agent, Inn ovative had a duty to use all reasonable efforts to procure employment for him
as a writer. In 2010, Brooks began developing an idea for a television project based on the Salem witch trials. He contends that he shared
his idea with Innovative ’s president, who expressed interest in the project. Rather than aiding Brooks in developing and marketing his Salem project, however, Innovative allegedly encouraged another of its clients “to develop and pursue a Salem television project ‘remarkably’ and not so coincidentally similar to Brooks’[s]
idea.” The competing Salem project “was sold to FOX 21, ran for several seasons, and generated in excess of $1.5 million in revenue to [Innovative ’s other client].” Bro oks discovered the competing Salem project shortly before the show’s second season when he saw a billboard advertising the program using the phrase “ w itch a mong

u s”

— a tagline Brooks contends he developed. (Capitalization omitted.) In September 2016, Brook s filed a claim against Innovative in
arbitration based on the agency’s alleged wrongdoing in promoting

2 We summarize here only the facts and procedural history relevant to our resolution of this appeal

. We draw many of the facts in this summary from the allegations of Brooks’s complaint. (See Pointe San Diego

, supra , 195 Cal.App. 4 th at p. 269 [“[ b]ec ause [the court was] reviewing a judgment on the pleadings . . . , [it] base [d] [the] factual description on the allegations of the complaint and documents that were properly the subject of judicial notice ”].) We express no view, however, concerning the veracity of the complaint’s allegations.5

the competing Salem project. He asserted causes of action for breach of contract, breach of fiduciary duty, and fraudulent
concealment and constructive fraud. On April 28, 2017, a pproximately seven months after filing the arbitration claim, Brooks retained Diggs to represent h im
in the proceedings. Brooks contends that Diggs “oftentimes was distracted by other pleasures in life,” and that his “performance [therefore] fell well below the standard of care that one would expect an attorney to provide to his client.” Brooks alleges , for example, that Diggs “would sometimes
be not iceably intoxicated” during case

- related calls

. In addition, “Diggs’ [ s ] [alleged] failure to timely and adequately retain
and prepare expert witnesses

— including a damage expert

— led directly to their disqualification and exclusion during the
arbitration.” (Capitalization omitted.) Diggs also purportedly neglected to prepare Brooks himself adequately for deposition, “fail[ing] to meet with Brooks as promised,” and instead “merely provid[ing] a general outline of how depositions work.” Finally, Diggs allegedly attempted to withdraw from the arbitra tion on the eve of the original ly scheduled November 2017 hearing date
in a manner suggest ing that Diggs “believed that Brooks’[s] lawsuit against [In novative] was without good cause.” Brooks contends further that “[d]espite filing a motion to withdraw, Diggs astoundingly failed t o also request a continuance of the arbitration hearing ” and related deadlines. “ Instead, Diggs brazenly

. . . continued to act as Brooks’[s] counsel for the following two weeks, filing and agreeing with [Innovative] on witness lists,
exhibit lists, and expert designations

, ” and improperly excluding from the lists “experts that Brooks had previously named.” Soon thereafter, Brooks fired Diggs and obtained a continuance of the arbitration hearing to August 2018. T he6

arbitrator ruled, however, “that because Diggs had already filed witness and exhibit[ ] lists, Brooks would be unable to amend
those filings once he obtained new counsel.” Brooks contends
that “Diggs’[s] failure to immediately seek a continuance of the arbitration hearing and filing deadlines upon moving to withdraw [thus] put [him] a t a disadvantage for the rest of the case as his new counsel was ultimately unable to rework or renegotiate the witness
list and exhibit list.”
The six

- day arbitration hearing commenced on August 24,

2018
, and concluded on Sep tember 29, 2018. On June 3, 2019,
the arbitrator issued his award

, ruling against Brooks and granting $170,550.97 in sanctions to Innovative based on the

“ ‘unwarranted delays of Brooks and his previous counsel.’ ” (Boldface & capitalization omitted.) The superior court eliminated the sanctions imposed against Brooks, but otherwise confirmed
the arbitrator’s award in a February 28, 2020 order. On October 20, 2020, Bro o ks filed a complaint against Diggs asserting cau ses of action for professional negligence, breach of fiduciary duty, and breach of contract. In response, Diggs moved for judgment on the pleadings on statute of limitations grounds. The trial court granted the motion without leave to amend

, explaining “[ Brooks] suffered actionable harm causing the [one

year] statute of limitations to accrue when the arbitrator issued
the award on June 3, 2019. [Brooks] did not file the complaint until over one year later, on October 20, 2020. As such, [Brooks’s] legal

m alpractice claim is barred by the statute of limitations.” 3

3 Brooks did not raise before the trial court any argument concerning the Judicial Council’s C OVID

- 19 emergency tolling rules.7

(Capitalization omitted.) T he court then issued an order dismissing Brooks’s complaint with prejudice. Brooks timely appealed.

DISCUSSION

A. Standard of Review

“ ‘ “ The standard of review for a motion for judgment on
the pleadings is the same as that for a general demurre r : We

treat the pleadings as admitting all of the material facts properly pleaded, but not any contentions, deductions or conclusions
of fact or law contained therein.

. . . We review the complaint
de novo to determine whether it alleges facts sufficient to state

a cause of action under any theory. ” ’ [Citation .]” ( Tarin v. Lind (2020) 47 Cal.App.5th 395, 403

– 404 .)

B. Law Governing Limitations Period for Legal Malpractice Claims

“ The statute of limitations for legal malpractice actions

is contained in

. . . section 340.6, subdivision (a). [ 4 ] Under this

4 Section 340.6, subdivision (a) provides, in relevant part: “[a]n actio n 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.

. . . Except for a claim for which the plaintiff is required to establish the plaintif f ’s factual innocenc e, the time for commencement of legal action shall not exceed four years except that the period shall be tolled during the time that

. . . the following exist [s] : [¶] (1) the plaintiff has not sustained actual injury.” (§ 340.6, subd. (a) (1) .)8

statute, t he one

- year limitations period generally commences
when the plaintiff actually or constructively discovers the facts
of the wrongful act or omission

. . . . [Citation s .] However, this limitations period is tolled until the plaintiff suffers actual loss

or damage resulting from the allegedly negligent actions. ” ( Pointe
San Diego

, supra , 195 Cal.App. 4th at p. 275.) “ For purposes of
the tolling rule, the ‘test for actual injury under section 340.6

. . . is whether the plaintiff has sustained any damages compensable in
an action

. ’ ” ( Pointe San Diego

, supra , at p. 275 , quoting Jordache Enterprises, Inc. v. Bro beck, Phleger & Harrison (1998) 18 Cal. 4th 739, 751 ( Jordache ) , italics added .) The determination of actual injury does not “depend on facile, ‘bright line’ rules. [Citations.] Instead, the part icular
facts of each case must be examined in light of the wrongful act

or omission the plaintiff alleges against the attorney.” ( Jordache

, supra , 18 Cal. 4th at p. 764.) In performing this inquiry, “ ‘t he
fact of damage, rather than the amount, is the critical factor.’ [Citation.] Thus, a plaintiff sustains ‘actual injury’ when he or
she incurs attorney fees to rectify the problem caused by the prior attorney’s alleged negligence. [Citation.] Further, actual injury may occur even if the loss is cont ingent on an appeal or other final adjudication. [Citation s .] The analysis ‘concerns whether “events have developed to a point where plaintiff is entitled to a legal remedy, not merely a symbolic judgment such as an award of nominal damages.” [Citation. ] However, once the plaintiff suffers actual harm, neither difficulty in proving damages nor uncertainty as to their amount tolls the limitations period.’ [Citation.]” ( Pointe San Diego

, supra , 195 Cal.App.4th at pp. 275

– 276.) “Although it is well settl ed that ‘determining when actual injury occurred is predominantly a factual inquiry[,] [citations] [w]hen the material facts are undisputed, the trial court can resolve9

the matter as a question of law. ’ ” ( Truong v. Glasser (2009) 181 Cal.App.4th 102, 111 ( Truong ).)

C. The Trial Court Properly Granted Judgment on the Pleadings i n Favor of Diggs

Brooks does not dispute he was contemporaneously aware
of Diggs’s alleged negligence in 2017

, nearly three years before
he filed his malpractice c omplaint

. He nonetheless contends his

c laims are timely because he did not sustain actual injury within the meaning of section 340.6 until the superior court confirmed the arbitration award on February 28, 2020. Alternatively, he argues
that even if he sustained actua l injury at the time of the arbitrator’s
June 3

, 2019 award, the tolling provided due to the COVID

- 19 pandemic under California Rules of Court, emergency rule 9 renders his claims timely. 5
We agree with Diggs, however, that Brooks’s claims are
time

- barred because the face of the complaint discloses that Brooks
suffered actual injury no later than the conclusion of the arbitration
h earing in September 2018. Brooks concedes that he incurred
fees for replacement counsel’s services at the time of the 2018
arbitration. He also acknowledges the many cases recognizing the established principle that fees incurred as a result of an attorney’s effort to correct another attorney’s a lleged malpractice constitute actual injury for purposes of s ection 340.6. (See Jordache

, supra , 18 Cal. 4th at p. 751 [“attorney fees incurred as a direct result of another’s tort are recoverable damages”]; Callahan v. Gibson, Dunn

5 Califor nia Rules of Court, e mergency r ule 9 provides, in relevant part: “ N otwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020, until October 1, 2020.” ( Cal. Rules of Court, e mergency r ule 9(a).)10

& Crutcher LLP (2011) 1 94 Cal.App.4th 557, 575 [plaintiffs

“ suffered actual injury when . . . [they] were required to incur attorney fees to respond to [a] claim” resulting from their former attorneys’ alleged negligence]; Pointe San Diego

, supra , 195 Cal.App.4th at p p

. 275

– 276 [“a plaintiff sustains ‘actual injury’
when he or she incurs attorney fees to rectify the problem caused by the prior attorney’s alleged negligence”]; Truong

, supra , 181 Cal.App.4th at p. 114 [“[p]laintiffs first sustained actual injury when they were requ ired to obtain and pay new counsel to file

a lawsuit seeking to escape the consequences of

. . . signing [ a ]
lease and lease addendum, which were among the actual damages plaintiffs suffered as a result of [their former attorney’s] alleged malpractice

, ” capitalization omitted ].) Brooks contends, however, that these cases are distinguishable because they involve fees incurred “in litigation arising because of the malpractice .” He urges that here, in contrast, he “elected to pursue arbitratio n proceedings against his former talent agency well before Diggs had provided legal representation or committed any malpractice .” Thus, Brooks insists , “the meter was running on legal fees, independent of any malpractice by Diggs

. ” Brooks argues further that, once the alleged malpractice occurred, he necessarily had to pay either Diggs or replacement counsel to correct or mitigate Diggs’s errors. And because discovery might reveal that Diggs would have charged more than replacement counsel to do so, Broo ks insists that we cannot determine at
the pleading stage whether he suffered any injury as a result
of retaining replacement counsel

. But in assessing actual injury, “ ‘the fact of damage, rather
than the amount

, is the critical factor.’ ” ( Pointe San Diego

, supra , 1 95 Cal. App. 4th at p. 275.) “ ‘ [O]nce the plaintiff suffers actual harm, neither difficulty in proving damages nor uncertainty as to11

their amount tolls the limitations period. ’ ” ( Id

. at p. 276.)
H ere, the face of Brooks’s complaint disclo ses that at least some portion of his replacement counsel’s fees resulted from efforts

to correct Diggs’s alleged errors. Brooks alleges , for example,
that replacement counsel “was ultimately unable to rework or renegotiate the witness list and exhibit li st” for the arbitration hearing and “could not unring the proverbial bell Diggs had

rung about his doubts in Brooks and the case.” In addition, the complaint seeks as damages the entirety of the $323,000 charged by Brooks’s replacement counsel in connecti on with the arbitration.
The complaint thus allege s that Brooks incurred at least some
of replacement counsel’s fees only because of Diggs’s alleged malpractice . W e therefore are not persuaded by Brooks’s attempts to distinguish the authorities on which Diggs relies. Accordingly, we conclude that Brooks suffered actual injury
no later than September 2018

. Brooks therefore filed his October 2020 complaint outside the operative one

- year limitations period, and the trial court properly granted judgment on the pleadings for Diggs. 6

6 Although the trial court reached its ruling through reasoning different from that we employ here, we affirm an order granting judgment on the pleadings if it “is correct upon

any theory of law applicable to the case .” ( Tukes v. Richard (2022) 81 Cal.App.5th 1, 19.)12 DISPOSITION

T he June 9, 2022 order is affirmed . Respondents are awarded their costs on appeal.

NOT TO BE PUBLISHED

.

ROTHSCHILD, P. J.
We concur :

CHANEY , J.

WEINGART , J

.