Filed 12/26/23 Brooks v. Diggs 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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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.,

Defendants and Respondents.

 B322575

 (Los Angeles County

 Super. Ct. No. 20STCV40105)

Appeal 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 Respondents.

______________________________
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 his former talent agency.

Brooks contends that Diggs performed negligently, 

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, obtained 

a continuance of the scheduled 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 malpractice 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 such 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 plaintiff’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 arbitration 

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 

malpractice action. (Capitalization omitted.) The court then issued 

an order dismissing 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 arbitrator’s award, an emergency 

tolling rule adopted by the Judicial Council in response to the 

COVID-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 sustains ‘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 

claims are untimely. We therefore affirm.
4

FACTUAL SUMMARY AND PROCEDURAL HISTORY2

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, Innovative 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].” Brooks discovered the competing 

Salem project shortly before the show’s second season when he saw

a billboard advertising the program using the phrase “witch among 

us”—a tagline Brooks contends he developed. (Capitalization 

omitted.)

In September 2016, Brooks 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.4th at p. 269 [“[b]ecause 

[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, approximately seven months after filing 

the arbitration claim, Brooks retained Diggs to represent him 

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 noticeably 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 arbitration on 

the eve of the originally scheduled November 2017 hearing date 

in a manner suggesting that Diggs “believed that Brooks’[s] lawsuit 

against [Innovative] was without good cause.”

Brooks contends further that “[d]espite filing a motion to 

withdraw, Diggs astoundingly failed to 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. The 
6

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] at 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 September 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, Brooks filed a complaint against Diggs 

asserting causes 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 [oneyear] 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 

malpractice 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 COVID-19 emergency tolling 

rules.
7

(Capitalization omitted.) The 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 demurrer: 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 action against an attorney for a wrongful act or omission, 

other than for actual fraud, arising in the performance of 

professional services shall be commenced within one year after 

the plaintiff discovers, or through the use of reasonable diligence 

should have discovered, the facts constituting the wrongful act 

or omission, or four years from the date of the wrongful act or 

omission, whichever occurs first. . . . Except for a claim for which 

the plaintiff is required to establish the plaintiff’s factual innocence, 

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, the one-year limitations period generally commences 

when the plaintiff actually or constructively discovers the facts 

of the wrongful act or omission . . . . [Citations.] 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. Brobeck, 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 particular 

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, “ ‘the 

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 contingent on an appeal or other final 

adjudication. [Citations.] 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 settled that ‘determining when actual 

injury occurred is predominantly a factual inquiry[,] [citations] 

[w]hen the material facts are undisputed, the trial court can resolve 
9

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 in 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 complaint. He nonetheless contends his 

claims 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 actual 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 

hearing 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 alleged malpractice constitute 

actual injury for purposes of section 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 California Rules of Court, emergency rule 9 provides, 

in relevant part: “Notwithstanding 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, emergency rule 9(a).)
10

& Crutcher LLP (2011) 194 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 pp. 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 required 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 arbitration 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, Brooks 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, 

195 Cal.App.4th at p. 275.) “ ‘[O]nce the plaintiff suffers actual 

harm, neither difficulty in proving damages nor uncertainty as to 
11

their amount tolls the limitations period.’ ” (Id. at p. 276.)

Here, the face of Brooks’s complaint discloses 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 list” 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 connection with the arbitration. 

The complaint thus alleges that Brooks incurred at least some 

of replacement counsel’s fees only because of Diggs’s alleged 

malpractice. We 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

The 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.