Filed 12/30/20 Block v. Raines Feldman LLP CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

WILLIAM H. BLOCK,

Plaintiff and Appellant,

v.

RAINES FELDMAN LLP et al.,

Defendants and Appellants.

 B297871

 (Los Angeles County

 Super. Ct. No. SC125895)

APPEALS from a judgment of the Superior Court of Los 

Angeles County, Mark A. Young, Judge. Reversed with 

directions. 

Lavely & Singer, Martin D. Singer and Paul N. Sorrell for 

Plaintiff and Appellant.

Robie & Matthai, Edith R. Matthai and T. John Fitzgibbons 

for Defendant and Appellant Raines Feldman LLP.
2

Tantalo & Adler, Joel M. Tantalo and Michael S. Adler for 

Defendant and Appellant Noel C. Lohr.

INTRODUCTION

William H. Block appeals from the judgment in this legal 

malpractice action following the trial court’s orders granting 

motions by the law firm Raines Feldman LLP, attorney 

Noel Lohr, and Lohr’s company LHR Enterprises, LLC, for 

summary judgment and denying a motion by Block for leave to 

amend his complaint. Block alleged Raines Feldman, Lohr, and 

LHR Enterprises breached their duties of loyalty and care to him 

by representing him notwithstanding a conflict of interest created 

by simultaneously representing Block’s employer, QED Holdings, 

LLC (QED), negotiating deals for Block that increased his 

liability to QED, and failing to close and finalize a separation 

agreement between Block and QED (although Block subsequently 

abandoned this last claim). Block also alleged that the 

defendants breached an oral contract, that LHR Enterprises 

breached a written contract, and that Lohr (as of counsel with 

Raines Feldman) improperly refused to cooperate with Block in 

an arbitration proceeding QED commenced against him.

Raines Feldman and Lohr moved separately for summary 

judgment on the grounds that the statute of limitations 

governing legal malpractice actions barred Block’s complaint, 

that Block’s alleged damages were not caused by the defendants’ 

alleged professional negligence and were speculative, and that 

the defendants could not defend themselves in the action without 
3

disclosing attorney-client privileged information.1 The trial court 

granted both motions, ruling that the statute of limitations 

barred portions of Block’s action and that the remaining portions 

alleged only speculative damages. The court rejected the 

argument by Raines Feldman and Lohr that the court had to 

dismiss the case because they could not defend themselves 

without disclosing privileged information. The court denied 

Block’s motion for leave to amend the complaint, ruling that 

Block inexcusably delayed in seeking leave to amend until after 

Raines Feldman and Lohr filed their motions for summary 

judgment and that Block did not show the proposed causes of 

action were based on newly discovered facts. Block appealed the 

trial court’s adverse rulings, and Raines Feldman and Lohr 

protectively cross-appealed from the portion of the trial court’s 

order declining to grant summary judgment on the ground they 

could not defend themselves without disclosing attorney-client 

privileged information. 

We agree with the trial court that Block’s alleged damages 

arising from Lohr’s refusal to cooperate with Block or testify in 

the arbitration are speculative as a matter of law, but that 

Block’s alleged damages arising from Raines Feldman’s and 

Lohr’s breaches of fiduciary duty and negligence are not. 

1 Lohr joined Raines Feldman’s motion and filed a separate 

motion. LHR Enterprises did not file a motion for summary 

judgment or join in Raines Feldman’s or Lohr’s motion. Raines 

Feldman and Lohr assert Block voluntarily dismissed LHR 

Enterprises after the trial court granted the motions for 

summary judgment, although there is nothing in the record to 

corroborate their assertion. Block states only that the parties 

“stipulated to deal with claims against [LHR Enterprises] 

depending upon the results of this appeal.” 
4

Because at oral argument Block abandoned certain theories of 

liability, however, his potential damages from the claims that 

remain are significantly curtailed. We also conclude the trial 

court erred in granting summary judgment on the statute of 

limitations defense because Block submitted evidence that 

created triable issues of material fact on whether the statute of 

limitations was tolled while Raines Feldman and Lohr continued 

to represent Block. And we agree with the trial court that Raines 

Feldman and Lohr did not demonstrate they could not defend 

themselves without revealing attorney-client privileged 

information. Therefore, we reverse the orders granting the 

motions for summary judgment and the order denying Block 

leave to amend. 

FACTUAL AND PROCEDURAL BACKGROUND

A. Lohr Represents Block in Connection with Film 

Projects and His Separation from QED

Block created and controls several companies that produce 

entertainment content, including DG Licensing, LLC and Block 

Entertainment, LLC. In 2006 Block created QED International, 

LLC, and in 2012 sold that company to Media Content Capital, 

LP. The successor to QED International, QED Holdings, LLC 

(QED), retained Block as its Chief Executive Officer. Media 

Content Capital is the majority shareholder of QED. According 

to Lohr, she represented QED in film finance matters through 

LHR Enterprises beginning in November 2012. 

On September 30, 2013 Block, on behalf of DG Licensing, 

and Lohr, on behalf of LHR Enterprises, executed a consulting 

services agreement. The agreement stated LHR Enterprises 

would “furnish the consulting services of [Lohr]” in connection 
5

with production loans, distribution agreements, and “such other 

matters as may be requested [by DG Licensing]” for the motion 

picture Dirty Grandpa. The parties acknowledged “the services 

to be rendered include services of a business nature, although 

they may include rendering certain legal services or legal advice.” 

Two weeks later, in October 2013, Lohr joined Raines Feldman as 

of counsel with the firm. The agreement between Lohr and 

Raines Feldman stated a partner of the firm would supervise 

Lohr’s work. 

In 2014 Block began negotiating his separation from QED. 

On July 10, 2014 Block sent Lohr an email summarizing several 

key negotiating points he had exchanged with Joshua Grode, an 

attorney at Irell & Manella LLP, who represented QED and 

Media Content Capital. Block stated in his email to Lohr: 

“Noel—This is a brief summation of my new deal with QED. [I] 

[w]ould like you to prepare a draft for [counsel for QED].” Lohr 

responded by sending an email the next day stating: “I’ve spent 

some time looking at the original deal documents for the 

investment and your employment agreement and I have some 

questions and thoughts as we look to document the new 

arrangement. I’d like the opportunity to talk these through with 

you.” Block alleges this email exchange created an attorneyclient relationship between him and Lohr as of counsel to Raines 

Feldman.2 The managing director of Media Content Capital, 

Sasha Shapiro, also understood Lohr represented Block in his 

negotiations with QED. 

2 Block alleged he retained Lohr to represent him in his 

separation from QED in May 2014, but this email exchange 

occurred in July 2014. 
6

B. Block and QED Negotiate Block’s Separation 

Agreement

Negotiations on Block’s separation from QED continued 

through the end of 2014. Meanwhile, Block pursued Dirty 

Grandpa and other projects on which both Lohr and another 

Raines Feldman attorney, Josh Mogin, provided advice. 

On December 19, 2014 Shapiro sent Block the proposed 

terms for Block’s separation from QED, which Shapiro called the 

“framework for the settlement and separation agreement” 

between QED and Block (and which Block shortens to the 

“framework agreement” and Raines Feldman refers to as the 

“deal points”). The proposed agreement listed 10 terms, 

including a January 31, 2015 date for the termination of Block’s 

employment with QED; formulas for the division of proceeds, 

agency fees, producer fees, and the “back end (‘points’)” from 

various film projects, including Dirty Grandpa; methodologies for 

financing and allocating certain market expenses; a mutual 

release; an indemnification by Block; a $150,000 payment by 

Block for expenses QED had advanced him; and an office 

sublease for Block. After clarifying a point regarding the division 

of proceeds, Block sent an email to Shapiro, copied to Lohr, 

stating, “Unless Noel has a question, I am confirmed. Noel?” On 

December 21, 2014 Lohr responded that “[t]he clarification 

work[ed] for [her] as well.” Block stated that he directed Lohr “to 

immediately close the deal.” Shapiro sent Block an email 

suggesting Lohr draft “the long-form document for us.” 

On December 20, 2014 Block sent Lohr an email stating 

Shapiro told him that he (Shapiro) wanted Lohr to represent 

Media Content Capital “for the administration of QED.” Block 

told Lohr he was “fine with that” and would “recus[e]” Lohr from 

representing him “once my deal is closed.” Lohr replied by 

thanking Block for his help in getting her work from Media 
7

Content Capital and QED. She also said she would prepare an 

engagement letter for that work “going forward after the 

settlement that clarifies that [she] can represent [Block] and 

Block Entertainment on other things” not adverse to Media 

Content Capital or QED. 

QED retained Raines Feldman to draft the long-form 

separation agreement. A January 12, 2015 conflict waiver letter 

from Lohr on Raines Feldman letterhead sought written consent 

from QED, Block, and Block Entertainment for Raines Feldman 

to represent QED “in connection with its general corporate, 

entertainment and employment matters and related legal issues, 

and particularly with respect to the documentation and review of 

the separation and settlement with Block.” The letter stated that

Raines Feldman “previously represented [QED] in unrelated 

matters” and “currently represents [QED]” and that Lohr, “who is 

of counsel to [Raines Feldman] also represents Block, [Block 

Entertainment] and other Block related entities and also

represents [QED] in unrelated matters in her capacity outside of 

[Raines Feldman].” The letter defined the “Parties” as QED, 

Media Content Capital, and Block. By signing the letter, the 

Parties consented to Raines Feldman’s representation of QED 

“even though there may be future actual conflicts between the 

Parties.” Though Lohr was not a “Party,” the letter stated Lohr 

“agrees by signing [the] letter on behalf of [Raines Feldman], that 

she will not represent Block or [Block Entertainment] in 

connection with any matter in which Block or [Block 

Entertainment] is adverse to [QED].” Block signed the letter 

“based on the assumption and agreement that [Raines Feldman 

and Lohr] would not represent [QED] until Block’s exit deal with 

[QED] was closed.” 

Long before Block signed the conflict waiver letter and just 

a day before Block (through Lohr) confirmed the terms of the 
8

framework agreement, however, Lohr sent an email to Shapiro 

(without sending a copy to Block) raising questions about the 

framework agreement’s general release, indemnity, and division 

of proceeds from unproduced film projects owned by QED as of 

the date of termination of Block’s employment that Block 

subsequently produced, including a film called Birth of a Dragon. 

The draft long-form agreement Lohr eventually sent Block and 

Shapiro on January 26, 2015 deviated from the framework 

agreement reached in December 2014 by, among other things, 

including carve-outs from the mutual release that favored QED 

and by giving QED rights in subsequent productions related to 

Dirty Grandpa that were not included in the framework 

agreement. 

On January 31, 2015 Block sent an email to Tim Connors, 

an attorney affiliated with QED, asking to “engage” him “to help 

finish” the separation agreement. About two weeks later 

Connors sent Block an email identifying the “two open issues [as] 

the 50% share of [Dirty Grandpa] sequels and the nonreciprocal 

release.” According to Raines Feldman, negotiations on Block’s 

separation agreement fell apart shortly thereafter because “QED

discovered liabilities that Block had created for QED without 

obtaining necessary approvals or disclosing them to QED.” 

C. Block Retains Lavely & Singer, and QED Commences 

an Arbitration and a Federal Action Against Block

Block retained the law firm of Lavely & Singer in February 

2015 to represent him in connection with his separation from 

QED. On March 18, 2015 QED commenced an arbitration 
9

against Block.3 The arbitration demand alleged Block and Blockowned entities usurped QED’s rights in Dirty Grandpa and Birth 

of a Dragon by entering into agreements with third parties 

without QED’s consent and by transferring certain rights from 

QED to Block-owned entities. QED also sued Block in federal 

district court on April 1, 2015. On April 2, 2015 Block filed a 

Statement of Counterclaims and Cross-claims in the arbitration.

D. Lohr Continues To Provide Legal Services to Block, 

but Refuses To Cooperate with Him in the Arbitration

Lohr continued to represent Block or Block Entertainment 

on matters related to Dirty Grandpa and other projects until 

October 2015. For example, in June 2015 Lohr helped Block 

negotiate a collection account management agreement (known in 

the industry as a CAMA) for Dirty Grandpa that is referred to in 

a draft of the long-form agreement that was supposed to 

formalize the framework agreement. Also in June 2015 LHR 

Enterprises sent an invoice to DG Licensing for “[s]ervices 

provided in connection with Dirty Grandpa,” including work on a 

distribution deal with Lionsgate, “chain-of-title follow-up,” “tax 

purchase documents and issues,” and “overbudget issues.” In 

August 2015 Block sent Lohr an email asking her to address the 

sales fee for Creative Artists Agency stemming from the 

Lionsgate deal. Lohr responded that she “will calendar.” In 

October 2015 Block and Lohr exchanged emails about an Eastern 

European distribution agreement for Dirty Grandpa, including a 

term sheet for the deal. 

3 QED supplemented its arbitration demand on July 21, 

2015, but the record on appeal includes only the demand filed in 

March 2015.
10

Block also sought Lohr’s cooperation in the arbitration with 

QED to prove the December 2014 framework agreement was 

enforceable. Through Raines Feldman, however, Lohr refused to 

meet with counsel for Block and took the position she had never 

represented Block in his separation from QED. On October 15, 

2015 Block served a subpoena for Lohr’s appearance at the 

arbitration hearing. Raines Feldman, as Lohr’s attorneys, 

objected to the subpoena, essentially taking the position she 

either represented all of the parties or was not sure which parties 

she represented and needed the arbitrator to determine that for 

her. Lohr’s objection stated (contrary to the position Raines 

Feldman had taken previously): “[S]ince [Lohr] acted as the 

attorney for the parties, testimony by her would raise attorney 

client privilege issues. Before she could testify at all, a 

determination or ruling would have to be made regarding which 

party or parties she represented, and during what time period. 

Without such a ruling, any testimony by her would potentially 

violate the attorney client privilege of one or the other of the 

parties.” Raines Feldman subsequently wrote to counsel for 

Block on behalf of Lohr and stated that Lohr “did NOT serve as 

Mr. Block’s attorney” in connection with Block’s separation from 

QED. Lohr also requested a hearing for the arbitrator to rule on 

her objections. On October 21, 2015 Block sent Lohr an email 

terminating the services of her “law firm.” 

E. Block and QED Settle Their Dispute

On November 2, 2015 Block and QED entered into a 

settlement agreement. The agreement provided for the division 

of proceeds from Dirty Grandpa and its sales fee, addressed 

certain costs and expenses for Dirty Grandpa as well as the 

collection account management agreement for Dirty Grandpa, 

and required Block to pay QED $1.5 million from Block’s share of 
11

back-end and sales fees. The settlement agreement also 

addressed production credits for Dirty Grandpa and included 

releases by Block and QED and an indemnification by Block.

F. Block Files This Action, Raines Feldman and Lohr 

Move for Summary Judgment, and Block Asks for 

Leave To Amend the Complaint

On May 23, 2016 Block filed this action against Raines 

Feldman, Lohr, and LHR Enterprises. Block alleged causes of 

action against all defendants for breach of fiduciary duty, 

negligence, breach of oral contract, and against LHR Enterprises 

for breach of a written contract. In his causes of action for breach 

of fiduciary duty and negligence, Block alleged the defendants 

“(a) represent[ed] Block notwithstanding a clear conflict of 

interest emanating from their representation of [QED], (b) 

negotiat[ed] new deals for Block outside [QED] that [QED]

contended were in violation of Block’s obligations under [a 2012 

contribution agreement] and his Employment Agreement, 

(c) fail[ed] to close the settlement reached between Block and 

[QED] on December 19-21, 2014, as referenced in emails 

exchanged between Block and [QED], and instead creat[ed] open 

issues and uncertainties that led to subsequent, costly litigation 

between the parties, (d) fail[ed] to discharge their duties and 

obligations to Block in connection with the negotiation and 

documentation of his separation and settlement agreement with 

[QED] because of their conflicts of interest, (e) fail[ed] and 

refus[ed] to reasonably cooperate with Block in connection with 

his arbitration hearing in the dispute between Block and [QED], 

including by failing to meet with Block and his counsel, and 

refus[ed] to testify at the arbitration hearing despite the fact that 

Lohr was a key witness and had been subpoenaed for the 

hearing, and (f) refus[ed] to acknowledge Defendants’ previous 
12

representation of Block, and [took] the position that Lohr had not 

represented Block . . . .” Block alleged that, as a result, he 

incurred “costly litigation,” “was forced to settle with QED . . . on 

a less favorable basis,” and suffered monetary damages in excess 

of $3 million. 

In November 2018 Raines Feldman and Lohr filed motions 

for summary judgment. They argued they were entitled to 

judgment as matter of law because (1) the one-year statute of 

limitations under Code of Civil Procedure section 340.6 barred 

the action,4 (2) Block could not establish causation because QED 

would not have agreed to terms more favorable to Block, and 

(3) the evidence necessary to disprove Block’s allegations was 

subject to the attorney-client privilege. 

Two months after Raines Feldman and Lohr filed their 

motions for summary judgment, Block deposed Lohr. According 

to Block, Lohr testified she “knowingly lied” about representing 

Block personally in the conflict waiver letter. Based on that 

testimony, Block filed a motion for leave to amend his complaint. 

Block proposed to add causes of action for intentional 

misrepresentation, declaratory relief, and rescission, as well as 

allegations to support the new causes of action. 

G. The Trial Court Grants the Motions for Summary 

Judgment and Denies the Motion for Leave To Amend 

the Complaint

The trial court granted Raines Feldman’s and Lohr’s 

motions for summary judgment. The court ruled the statute of 

limitations barred Block’s action to the extent it was based on 

“the failure of the deal and the subsequent arbitration” because 

the allegedly actionable conduct occurred in February and March 

4 Statutory references are to the Code of Civil Procedure. 
13

2015, respectively, and Block did not file this action until May 

2016. The court rejected Block’s argument that Lohr’s continued 

representation of Block on matters related to his separation from 

QED tolled the statute of limitations for conduct occurring in 

February and March 2015. 

With respect to Lohr’s refusal to cooperate with the 

arbitration in October 2015 (which occurred within a year of 

Block’s filing of this action), the trial court ruled that Lohr did 

not breach her fiduciary duties to Block by objecting to Block’s 

subpoena and refusing to testify at the arbitration. The trial 

court ruled in the alternative that any damages from the alleged 

breach were speculative. Although the court had already 

concluded that the alleged breaches of duty based on the 

defendants’ failure to close the 2014 framework agreement were 

time-barred, the trial court found the alleged damages caused by 

that conduct were not speculative. The court stated the “evidence 

suggesting the presence of a ‘framework’ with terms more 

favorable to [Block] than the ultimate agreement that was 

reached creates a non-speculative question of fact as to a 

potential better deal that was defeated by Defendant’s [sic] 

alleged conduct.” 

Finally, the court rejected Raines Feldman and Lohr’s 

argument that the court had to dismiss Block’s complaint because 

their defense required them to disclose attorney-client privileged 

communications. The court concluded that the communications 

the defendants claimed were privileged were not “highly 

material” or necessary to their defense and that they did not 

show it would be fundamentally unfair to allow Block’s action to 

proceed. 

The trial court denied Block’s motion for leave to amend the 

complaint, ruling the proposed new causes of action were based 

on evidence available to Block at the time he filed the original 
14

complaint. In particular, the court found that Block knew when 

he filed the original complaint Lohr had taken the position she 

did not represent Block personally and that Block “even 

reference[d] [Lohr’s] belief in the complaint.” The court also 

concluded that allowing Block to amend the complaint would 

prejudice the defendants because they had already filed motions 

for summary judgment. Thus, the court ruled, the motion for 

leave to amend presented “a ‘moving target’” for summary 

judgment. 

Block timely appealed.5 Raines Feldman and Lohr filed 

notices of cross-appeal from the portion of the trial court’s order 

denying their motions for summary judgment on the ground the 

attorney-client privilege prevented them from defending against 

Block’s complaint. 

H. At Oral Argument in This Court, Block Abandons 

Some but Not All of His Claims

During questioning at oral argument in this court about 

the bases for Block’s causes of action, counsel for Block stated 

that, contrary to the allegations in the complaint, Block was not 

5 On May 16, 2019 Block filed a notice of appeal purporting 

to appeal from a judgment after an order granting the 

defendants’ motions for summary judgment and an order denying 

his motion for leave to amend the complaint. The trial court, 

however, did not enter judgment until June 3, 2019. Orders 

granting summary judgment or denying leave to amend are not 

appealable, but in the interests of justice and efficiency, we 

construe Block’s notice of appeal as filed immediately after entry 

of judgment. (See H.N. & Frances C. Berger Foundation v. City of 

Escondido (2005) 127 Cal.App.4th 1, 6-7, fn. 5; Cal. Rules of 

Court, rule 8.104(d)(2).)
15

claiming Raines Feldman or Lohr committed malpractice by 

failing to adequately document and close the framework 

agreement concerning Block’s separation from QED. Counsel for 

Block said that Block “can’t force Ms. Lohr to make a party sign 

the agreement.” Instead, counsel for Block argued that Raines 

Feldman and Lohr breached their duties to Block beginning in 

early 2015, after Block and QED had agreed to a broad release in 

the framework agreement, by representing Block in a manner 

contrary to his interests and creating future liabilities for him. 

For example, counsel for Block stated that Lohr proposed 

modifications to the general release in the framework agreement 

that increased Block’s liability. As a result of counsel for Block’s 

concessions at oral argument, Block has abandoned the third and 

fourth bases for his causes of action for breach of fiduciary duty 

and negligence (claims (c) and (d) above) to the extent they arise 

from the defendants’ alleged failure to adequately document the 

framework agreement and finalize the agreement in a long-form 

contract. 

DISCUSSION

A. Summary Judgment Principles and the Standard of 

Review

A court may grant a motion for summary judgment when 

“all the papers submitted show that there is no triable issue as to

any material fact and that the moving party is entitled to a 

judgment as a matter of law.” (§ 437c, subd. (c); see Regents of 

University of California v. Superior Court (2018) 4 Cal.5th 607, 

618.) “When a defendant moves for summary judgment in a 

situation in which the plaintiff at trial would have the burden of 

proof by a preponderance of the evidence, the defendant may, but 
16

need not, present evidence that conclusively negates an element 

of the plaintiff’s cause of action. Alternatively, the defendant 

may present evidence to ‘“show[ ] that one or more elements of 

the cause of action . . . cannot be established” by the plaintiff.’” 

(Mattei v. Corporate Management Solutions, Inc. (2020) 

52 Cal.App.5th 116, 122; see § 437c, subd. (p)(2); Aguilar v. 

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.) The moving 

party has the burden to show that the plaintiff has not 

established, and cannot reasonably expect to establish, the 

elements of his or her cause of action. (Mattei, at p. 122; see

Ennabe v. Manosa (2014) 58 Cal.4th 697, 705.)

“‘A defendant has the initial burden to show that 

undisputed facts support summary judgment based on the 

application of an affirmative defense.’” (Drexler v. Petersen (2016) 

4 Cal.App.5th 1181, 1188.) “A defendant moving for summary

judgment based on the affirmative defense of the statute of 

limitations carries its burden by presenting evidence establishing 

that the plaintiff’s claim is time barred.” (Genisman v. Carley

(2018) 29 Cal.App.5th 45, 49; see The Police Retirement System of 

St. Louis v. Page (2018) 22 Cal.App.5th 336, 340.) “‘It then falls 

to plaintiff[ ] to counter with evidence creating a dispute about a 

fact relevant to that defense.’ [Citation.] That is, the plaintiff 

must submit evidence that would allow a ‘reasonable trier of fact 

[to] find in plaintiff[’s] favor on the statute of limitations issue.’” 

(Genisman, at p. 49; see Aguilar v. Atlantic Richfield Co., supra,

25 Cal.4th at pp. 850-851.) If a defendant presents evidence 

establishing an action was time-barred, and the plaintiff did not 

effectively dispute any of the relevant facts, the court properly 

granted summary judgment. (Genisman, at p. 49; see § 437c, 

subd. (p)(2).)
17

“We review a grant of summary judgment de novo and 

decide independently whether the facts not subject to triable 

dispute warrant judgment for the moving party as a matter of 

law.” (Mattei v. Corporate Management Solutions, Inc., supra,

52 Cal.App.5th at p. 122; see Hampton v. County of San Diego

(2015) 62 Cal.4th 340, 347.) “The reviewing court ‘liberally 

constru[es] the evidence in favor of the party opposing the motion 

and resolv[es] all doubts about the evidence in favor of the 

opponent.’ [Citation.] Similarly, ‘any doubts as to the propriety 

of granting a summary judgment motion should be resolved in 

favor of the party opposing the motion.’” (Ghazarian v. Magellan 

Health, Inc. (2020) 53 Cal.App.5th 171, 182; see Reid v. Google, 

Inc. (2010) 50 Cal.4th 512, 535.)

B. Raines Feldman and Lohr Did Not Demonstrate That 

All of Block’s Damages Claims Were Speculative 

In determining whether certain types of injuries Block 

alleged were caused by Raines Feldman’s and Lohr’s alleged 

negligence, the trial court concluded some damages were 

speculative while others were not. As a result, both sides 

challenge the trial court’s rulings on causation and damages. 

1. Applicable Law

To prevail on a legal malpractice claim, a plaintiff must 

prove “‘a proximate causal connection between the breach and 

the resulting injury’” and “‘actual loss or damage resulting from 

the attorney’s negligence.’” (Namikas v. Miller (2014) 

225 Cal.App.4th 1574, 1581.) “‘In the legal malpractice context, 

the elements of causation and damage are particularly closely 

linked.’ [Citation.] The plaintiff must prove, by a preponderance 

of the evidence, that but for the attorney’s negligent acts or 
18

omissions, he would have obtained a more favorable judgment or 

settlement in the action in which the malpractice allegedly 

occurred. [Citations.] This standard requires a ‘trial-within-atrial’ of the underlying case, in which the malpractice jury must 

decide what a reasonable jury or court would have done if the 

underlying matter had been tried instead of settled. [Citation.] 

This method ‘“is the most effective safeguard yet devised against 

speculative and conjectural claims. . . . It is a standard of proof 

designed to limit damages to those actually caused by a 

professional’s malfeasance.”’” (Id. at p. 1582; see Viner v. Sweet

(2003) 30 Cal.4th 1232, 1241 [requiring the plaintiff to “establish 

that but for the alleged negligence of the defendant attorney, the 

plaintiff would have obtained a more favorable judgment or 

settlement” serves “the essential purpose of ensuring that 

damages awarded for the attorney’s malpractice actually have 

been caused by the malpractice”].) 

“Because causation is a question of fact for the jury, it 

ordinarily cannot be resolved on summary judgment. [Citation.] 

In legal malpractice claims, the absence of causation may be 

decided on summary judgment ‘only if, under undisputed facts, 

there is no room for a reasonable difference of opinion.’” 

(Namikas v. Miller, supra, 225 Cal.App.4th at p. 1583.)

2. Block’s Damages Caused by Lohr’s Refusal To 

Cooperate in the Arbitration Are Speculative as 

a Matter of Law

The trial court found Block’s claim based on Lohr’s refusal 

to testify at the arbitration lacked merit as a matter of law 

because Block “provided nothing more than speculation to 

indicate that he would have obtained a better arbitration result 

had [Lohr] testified.” The trial court explained that Block’s 
19

allegations invited speculation about whether the arbitrator 

would overrule Lohr’s objections to Block’s subpoena, whether 

Block would have prevailed at arbitration had Lohr testified, and 

whether Block still would have settled the dispute if Lohr had 

agreed to testify. As Raines Feldman and Lohr argue, these 

multiple layers of uncertainty support the trial court’s ruling that 

“it would be entirely speculative to conclude that [Block] would 

have received a better result” had Lohr testified in the 

arbitration proceeding. 

Block argues the damages caused by Lohr’s refusal to 

testify in the arbitration are not speculative as a matter of law 

for several reasons. First, Block argues the trial court failed to 

consider evidence showing Raines Feldman refused to allow Lohr 

to testify, which made her a hostile witness that “no litigator 

would want to compel” to testify. This evidence does not diminish 

the mental gymnastics required to conclude Block would have 

achieved a better result in the arbitration had Lohr testified. 

Second, Block argues the trial court ignored evidence Lohr also 

failed to cooperate with Block in preparing for the arbitration. 

But Block does not explain how Lohr’s unspecified cooperation 

would have bolstered his position in the arbitration or how her 

noncooperation made his damages any less speculative. Third, 

Block argues the trial court ignored evidence Lohr falsely 

testified in a deposition she had never represented Block in 

connection with the separation agreement. Again, whether Lohr 

testified truthfully did not make it any easier to resolve the 

speculation inherent in determining whether, but for Lohr’s 

transgressions, she would have testified, would have testified 

truthfully about her representation of Block, and would have 

helped Block obtain a more favorable arbitration decision or 

settlement.
20

3. Raines Feldman and Lohr Did Not 

Demonstrate Block’s Damages Caused by Lohr’s 

Representation After December 2014 Are 

Speculative as a Matter of Law

Although the trial court ruled Block’s action based on 

Raines Feldman’s and Lohr’s representation of Block prior to 

March 2015 was time-barred, the court nevertheless found the 

damages their alleged breaches of duty caused were not 

speculative. The trial court stated that Block’s “evidence 

suggesting the presence of a ‘framework’ with terms more 

favorable to [him] than the ultimate agreement . . . create[d] a 

non-speculative question of fact as to a potential better deal that 

was defeated by [Raines Feldman and Lohr’s] conduct.” 

As discussed, however, Block has now abandoned his 

claims Raines Feldman and Lohr committed malpractice by 

failing to obtain a better deal for Block (i.e., part of claim 

labeled (c) and all of claim labeled (d) in the complaint). And his 

claims related to Lohr’s refusal to cooperate with the arbitration 

and acknowledge her representation of Block (claims labeled (e) 

and (f) in the complaint) are speculative. At oral argument 

counsel for Block did not abandon Block’s claim that Raines 

Feldman and Lohr “creat[ed] open issues and uncertainties that 

led to subsequent, costly litigation between the parties” (the other 

part of the claim labeled (c)). But counsel for Block argued Lohr 

created those uncertainties by “modify[ing] the language in a 

release that had already been agreed to [in the framework 

agreement].” Without holding Raines Feldman and Lohr 

responsible for failing to finalize the long-form agreement with a 

broad release, Block cannot prove this conduct caused him any 

damages. Moreover, if the framework agreement’s broad release 

is enforceable, then Lohr’s attempts to “modify” the release are 
21

not relevant to (or are at best extremely remote and speculative 

causes of) Block’s damages. 

Block’s remaining claims are that after December 2014 

Lohr (through Raines Feldman) represented him 

“notwithstanding a clear conflict of interest emanating from [her] 

representation of [QED]” and “negotiat[ed] new deals for Block 

outside [QED] that [QED] contended were in violation of Block’s 

obligations” (claims labeled (a) and (b) in the complaint). In the 

absence of Block’s (abandoned) claims arising from the failure of 

the framework agreement, these two remaining claims 

essentially collapse into one based on Lohr’s representation of 

Block in connection with deals that allegedly increased his 

liability to QED and caused him to incur additional attorneys’ 

fees, because Block has not identified any other conduct that 

resulted in nonspeculative damages. Under this theory, Block’s 

damages are not the difference between the 2014 framework 

agreement and the November 2015 settlement agreement. 

Instead, the measure of Block’s damages is the additional 

liability and attorneys’ fees created by Lohr’s representation of 

Block after December 2014 when Lohr represented both Block 

and QED. Raines Feldman (joined by Lohr) argued in its motion 

for summary judgment Block could not prove Lohr’s alleged 

malpractice caused these damages because there was no 

evidence that, had Lohr advised Block to obtain permission from 

QED to enter into these deals, QED would have given Block such 

permission. The trial court did not address this argument or 

grant Raines Feldman’s motion for summary judgment on this 

ground.

To defeat the motions for summary judgment, however, 

Block did not have to present evidence QED would have given 

him permission to enter into the deals QED claimed were 

unauthorized. Block only needed to create a triable issue of 
22

material fact regarding whether he would not have committed 

QED to such deals had Lohr told him to seek QED’s prior 

authorization, or at least advised him authorization was an issue. 

And Block did just that. Block stated in his declaration he 

believed he had authority “to proceed with projects in which [he] 

was involved at [the time he began negotiating his separation 

from QED], including projects on which [he] had worked at QED,” 

such as Dirty Grandpa and others. Block stated Lohr knew, “as 

she claimed to be counsel to [QED], that [QED] took the position 

that [he] did not have authority to work on or finance these 

projects elsewhere without [QED’s] consent.” And Lohr’s email to 

Shapiro in December 2014 suggesting QED narrow the release in 

the long-form agreement shows that Lohr discussed the scope of 

Block’s authorization with QED. In addition, Block submitted 

evidence showing Lohr continued to “counsel[ ] and assist[ ]” 

Block on matters related to Dirty Grandpa (and other projects) 

that could have “expos[ed] him to liability to QED” and “resulted 

in [QED] suing Block.” 

Meanwhile, QED sued Block for working on those very 

projects and deals. QED’s March 2015 arbitration demand 

alleged Block entered into certain agreements without QED’s 

authorization, including deals relating to Dirty Grandpa. And 

the November 2015 settlement agreement reduced Block’s share 

of the back-end fee from Dirty Grandpa, required Block to 

transfer to QED certain assets and rights related to Dirty 

Grandpa, and required Block to pay QED $1.5 million. To the 

extent these liabilities (and attorneys’ fees resulting from the 

arbitration and settlement) were attributable to deals Lohr 

negotiated or documented on Block’s behalf after December 2014, 

a trier of fact could conclude Lohr’s alleged malpractice caused 

Block’s damages. (See Viner v. Sweet, supra, 30 Cal.4th at 

p. 1241.) 
23

To sum up, Block has one claim remaining that he has not 

abandoned or that is not speculative as a matter of law: Lohr 

through Raines Feldman breached her duties to Block in 

representing him in transactions with third parties after 

December 2014 that increased his potential liability to QED and 

caused him to incur attorneys’ fees. We now consider whether 

Raines Feldman and Lohr are entitled to summary judgment on 

that claim on the other grounds raised by the motion: Whether 

the claim is barred by the statute of limitations or because Raines 

Feldman and Lohr cannot defend themselves against the claim 

without revealing attorney-client privileged communications.

C. Block Created Triable Issues of Material Fact 

Regarding Whether the Defendants’ Continuing 

Representation Tolled the Statute of Limitations 

What remains of Block’s causes of action for breach of 

fiduciary duty, negligence, and breach of oral contract is the

claim based on Raines Feldman’s and Lohr’s representation of 

Block after December 2014 in connection with deals that QED 

claimed were unauthorized. Counsel for Block stated at oral 

argument that Lohr’s actionable conduct (through Raines 

Feldman) occurred as early as January and February 2015. 

Because QED’s March 2015 arbitration demand alleged that 

QED did not authorize certain agreements Block entered into on 

QED’s behalf and demanded Block pay QED monetary damages, 

Block discovered at that time, or through the use of reasonable 

diligence should have discovered, the facts constituting Lohr’s 

alleged wrongful conduct. Thus, Block had one year under 

section 340.6, subdivision (a), or until March 2016, to sue to 

recover damages caused by the wrongful acts Block alleges Lohr 

committed in early 2015. Because Block did not file this action 
24

until May 2016, his claim for those damages is barred unless the 

statute of limitations is tolled. 

Block argues that Raines Feldman’s and Lohr’s continued 

representation of him on related matters tolled the statute of 

limitations under section 340.6, subdivision (a)(2). Block 

submitted sufficient evidence to create triable issues of material 

fact on this issue.

1. Applicable Law

Section 340.6, subdivision (a), provides the statute of 

limitations for actions arising from legal malpractice. (See 

Nguyen v. Ford (2020) 49 Cal.App.5th 1, 11-12, 17 (Nguyen) 

[section 340.6, subdivision (a), applies to any causes of action that 

depend “‘on proof that an attorney violated a professional 

obligation’ . . . notwithstanding how they are styled”]; Bergstein v. 

Stroock & Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 819 

[“‘[w]hen determining which statute of limitations applies to a 

particular action, a court considers what the principal purpose or 

“gravamen” of the action is, rather than the form of action or the 

relief demanded’”].) Legal malpractice causes of action are timely 

if “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 . . . .” (§ 340.6, 

subd. (a).)

Section 340.6, subdivision (a)(2), tolls the statute of 

limitations “during the time that . . . [¶] [t]he attorney continues 

to represent the plaintiff regarding the specific subject matter in 

which the alleged wrongful act or omission occurred.” The 

purpose of this provision is “‘to “avoid the disruption of an 

attorney-client relationship by a lawsuit while enabling the 

attorney to correct or minimize an apparent error, and to prevent 
25

an attorney from defeating a malpractice cause of action by 

continuing to represent the client until the statutory period has 

expired.”’” (Nielsen v. Beck (2007) 157 Cal.App.4th 1041, 1048

(Nielsen); accord, Beal Bank, SSB v. Arter & Hadden, LLP (2007) 

42 Cal.4th 503, 511.) 

“Section 340.6(a)(2) does not provide a standard for 

determining when an attorney’s representation in a ‘specific 

subject matter’ terminates, thus ending the tolling period.”

(Nguyen, supra, 49 Cal.App.5th at p. 12; see Nielsen, supra,

157 Cal.App.4th at pp. 1048-1049 [neither section 340.6 nor its 

legislative history states a standard to determine when an 

attorney’s representation of a client regarding a specific subject 

matter continues or when the representation ends].) “In the 

absence of specific statutory guidance, courts have developed a 

number of principles to direct the inquiry.” (Nguyen, at p. 12.) In 

general courts consider whether an attorney defendant continued 

to represent the plaintiff after the plaintiff discovered the alleged 

malpractice, and if so, whether the continued representation 

encompassed the specific subject matter giving rise to the alleged 

malpractice. (See Nielsen, at pp. 1052-1053.) Whether an 

attorney continued to represent the plaintiff regarding the 

specific subject matter is generally a question of fact, but the 

court can decide the issue as a matter of law if the undisputed 

facts support only one conclusion. (Nguyen, at p. 14; Gonzalez v. 

Kalu (2006) 140 Cal.App.4th 21, 31.)
26

2. Block Submitted Evidence Creating Triable 

Issues of Fact Regarding Whether Raines 

Feldman and Lohr Continued To Represent 

Him

Block contends there were triable issues of fact regarding 

whether Lohr, through Raines Feldman, continued to represent 

him after March 2015. “‘“An attorney’s representation of a client 

ordinarily ends when the client discharges the attorney or 

consents to a withdrawal, the court consents to the attorney’s 

withdrawal, or upon completion of the tasks for which the client 

retained the attorney.”’” (Nguyen, supra, 49 Cal.App.5th at p. 13; 

see GoTek Energy, Inc. v. SoCal IP Law Group, LLP (2016) 

3 Cal.App.5th 1240, 1246; Nielsen, supra, 157 Cal.App.4th at 

p. 1049.) “[T]he inquiry into when representation has terminated 

does not focus on the client’s subjective beliefs about whether the 

attorney continues to represent him or her in the matter. 

Instead, the test is objective and focuses on the client’s 

reasonable expectations in light of the particular facts of the 

attorney-client relationship. ‘In deciding whether an attorney 

continues to represent a client, we do not focus “‘on the client’s 

subjective beliefs’”; instead, we objectively examine “‘evidence of 

an ongoing mutual relationship and of activities in furtherance of 

the relationship.’”’” (Nguyen, at p. 14; see GoTek Energy, at 

p. 1248; Shaoxing City Maolong Wuzhong Down Products, Ltd. v. 

Keehn & Associates, APC (2015) 238 Cal.App.4th 1031, 1038 

(Shaoxing City).) “Representation ends ‘“‘when the client actually 

has or reasonably should have no expectation that the attorney 

will provide further legal services.’”’” (Nguyen, at p. 14.) “In 

other words, tolling under the continuous representation 

exception ends when ‘“‘a client has no reasonable expectation that 

the attorney will provide further legal services.’”’” (Ibid.)
27

Continuing representation can toll the limitations period 

even though the client is aware of the attorney’s negligence and 

consults another attorney. (Nielsen, supra, 157 Cal.App.4th at 

p. 1049; O’Neill v. Tichy (1993) 19 Cal.App.4th 114, 120-121.) For 

example, “evidence that an attorney continued to bill a client for 

work related to the matter defeated summary judgment over the 

application of section 340.6(a)(2), notwithstanding evidence that 

another attorney had taken over the representation.” (Nguyen, 

supra, 49 Cal.App.5th at p. 14; see O’Neill, at p. 121.) 

“Conversely, a Court of Appeal found as a matter of law that the 

continuous tolling exception did not apply where the attorney had 

substituted out as counsel and it was ‘undisputed’ that the 

attorney did not provide legal advice, perform work, send bills, or 

appear on behalf of the plaintiff after the attorney substitution.” 

(Nguyen, at p. 14; see Shaoxing City, supra, 238 Cal.App.4th at 

p. 1039 [“the relationship can continue—notwithstanding the 

withdrawal and substitution—if the objective evidence shows 

that the attorney continues to provide legal advice or services”].)

Block contends Lohr, through Raines Feldman, continued 

to represent him on numerous matters related to the alleged 

malpractice after March 2015. Block submitted evidence (and 

the defendants do not appear to deny, at least for purposes of 

their motions for summary judgment) Lohr continued to provide 

legal services to him or his companies. To apply the continuous 

representation exception to Block’s action, however, Lohr must 

have provided those services through Raines Feldman and on 

behalf of Block personally.6

6 If Lohr provided such services through LHR Enterprises 

and not Raines Feldman, the statute of limitations may be tolled 

against Lohr and LHR Enterprises, but not Raines Feldman.
28

Block submitted sufficient evidence to create triable issues 

of material fact on both questions. Block submitted emails 

concerning Lohr’s work on Dirty Grandpa in 2014, in which she 

copied Mogin, and Mogin joined a “kickoff call” for Dirty Grandpa

on October 2, 2014. Block stated in his declaration that Lohr 

confirmed to him that Mogin and other Raines Feldman 

attorneys were involved in the negotiations relating to Dirty 

Grandpa. The January 12, 2015 conflict waiver letter shows 

Raines Feldman represented Block in some capacity; otherwise, 

the firm would not have required Block to waive conflicts created 

by Raines Feldman’s representation of QED. Indeed, Block “as 

an individual” was a party to the conflict waiver, and Lohr signed 

the letter “on behalf of” Raines Feldman. The evidence submitted 

by Block showing Lohr continued to provide him services after 

March 2015 does not directly refer to Raines Feldman or any 

other Raines Feldman attorney, but those services involved the 

same or similar matters as those on which Mogin was previously 

involved, and Lohr was of counsel at Raines Feldman at the time. 

Finally, Lohr’s objections to Block’s subpoena in connection with 

the arbitration stated that she “acted as the attorney for the 

parties,” which included Block as an individual. Taken together, 

this evidence created triable issues of material fact regarding 

whether Lohr and Raines Feldman continued to represent Block 

after March 2015 and within one year before he filed this action. 

3. Block’s Evidence Created Triable Issues of 

Material Fact Regarding the Scope of Raines 

Feldman’s and Lohr’s Representation After 

March 2015

Courts have variously described the connection required 

between the “specific subject matter in which the alleged 
29

wrongful act or omission occurred” and the subject matter in 

which an attorney continues to represent the client for purposes 

of the continuous representation tolling provision in section 

340.6, subdivision (a)(2). Courts generally interpret “specific 

subject matter” to include “different, but related, actions.” (Jocer 

Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 559, 571.) For 

example, courts have held section 340.6, subdivision (a)(2), tolled 

the statute of limitations when the continuing matter is 

“intertwined and related, having overlapping objectives and 

purposes” (Nielsen, supra, 157 Cal.App.4th at p. 1054), arose 

“from the same event” (ibid.; see Gold v. Weissman (2004) 

114 Cal.App.4th 1195, 1200), sought “to protect the interests 

acquired by the client in the original transaction” (Crouse v. 

Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1530), 

is affected by the client’s position in the original matter (Lockley 

v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 

91 Cal.App.4th 875, 890), or presented “unsettled” matters 

“tangential” to the original matter (Kelly v. Orr (2016) 

243 Cal.App.4th 940, 949; see Lockton v. O’Rourke (2010) 

184 Cal.App.4th 1051, 1063 [“the representation is on the same 

specific subject matter until the agreed tasks have been 

completed or events inherent in the representation have 

occurred”]). 

In ruling on the motions for summary judgment, the trial 

court defined the original matter as “the failed QED separation 

deal” and ruled there was no evidence linking the services Lohr 

continued to provide Block to his separation deal. Block’s 

reframed complaint, as described by counsel for Block at oral 

argument, focuses less on the failed long-form agreement and 

more on Lohr’s allegedly conflicted representation of Block after 
30

Block and QED agreed to the terms of the framework. And Block 

submitted evidence showing that after May 2015, and as late as 

October 2015, well within the one-year limitations period, Block 

sought and Lohr gave advice concerning Block’s rights in projects 

including Dirty Grandpa and others. For example, Block 

submitted evidence showing Lohr advised him in connection with 

a collection account management agreement, distribution deals, 

and a sales fee for Dirty Grandpa. These appear to be the same 

types of deals that QED alleged in the March 2015 arbitration 

demand Block had no authorization to enter. Lohr’s 

representation of Block in the distribution and other agreements 

for Dirty Grandpa indicate the later deals were “intertwined and 

related, having overlapping objectives and purposes” (Nielsen, 

supra, 157 Cal.App.4th at p. 1054), arose “from the same event,” 

namely the production of Dirty Grandpa and other projects Block 

began while still employed by QED (Gold v. Weissman, supra,

114 Cal.App.4th at p. 1200), and were incomplete tasks “inherent 

in the [prior] representation” (Lockton v. O’Rourke, supra, 

184 Cal.App.4th at p. 1063). Block therefore created a triable 

issue of fact whether Lohr later represented Block on the same 

specific subject matter from which Block’s allegations of 

malpractice arose. 

D. The Attorney-client Privilege Does Not Preclude 

Raines Feldman and Lohr from Defending 

Themselves in This Action

Because we conclude that Block’s action is not time-barred 

and that some of his claimed damages are not speculative, we 

consider whether, as Raines Feldman and Lohr contend, the trial 

court erred in refusing to dismiss Block’s complaint on the ground 

they could not defend themselves without disclosing attorney-
31

client privileged communications between them and QED. The 

trial court ruled Raines Feldman and Lohr “failed to clearly show 

that privileged information is ‘highly material’ to [their] 

defenses” and that fundamental fairness dictated dismissal. The 

court’s analysis centered on Raines Feldman and Lohr’s 

argument they had to reveal privileged information, including 

“communications with QED, the drafts [of the separation 

agreement] Raines Feldman prepared that were not shared with 

Block, and Raines Feldman’s internal communications about 

those drafts” to show their actions did not derail the separation 

agreement. 

But again, Block no longer claims Raines Feldman and 

Lohr are liable for derailing the separation agreement, and 

neither Raines Feldman nor Lohr argued in the trial court or on 

appeal they cannot defend against Block’s allegations that they 

“represent[ed] Block notwithstanding a clear conflict of interest 

emanating from their representation of [QED]” or “negotiat[ed]

new deals for Block outside [QED] that [QED] contended were in 

violation of Block’s obligations” to QED without revealing 

privileged information. Therefore, Raines Feldman and Lohr 

forfeited that argument. (See Johnson v. Greenelsh (2009) 

47 Cal.4th 598, 603; Colyear v. Rolling Hills Community Assn. of 

Rancho Palos Verdes (2017) 9 Cal.App.5th 119, 137, fn. 5.) And 

even if not forfeited, the argument lacks merit.

1. Applicable Law

The court in Dietz v. Meisenheimer & Herron (2009) 

177 Cal.App.4th 771 (Dietz) identified four factors a court should 

consider before dismissing a case on the ground that “a defendant 

attorney’s due process right to present a defense would be 

violated by the defendant’s inability to disclose a client’s 

confidential information if the action were allowed to proceed.” 
32

(Id. at p. 792; see Reilly v. Greenwald & Hoffman, LLP (2011) 

196 Cal.App.4th 891, 904.) “First, the evidence at issue must be 

the client’s confidential information, and the client must be 

insisting that the information remain confidential.” (Dietz, at 

p. 792.) Second, the confidential information at issue must be 

“highly material” to the defendant’s defenses. (Ibid.) Third, 

“before dismissing a case on due process grounds, the trial court 

must determine whether it is able to effectively use ‘ad hoc 

measures from [its] equitable arsenal,’ including techniques such 

as ‘sealing and protective orders, limited admissibility of 

evidence, orders restricting the use of testimony in successive 

proceedings, and, where appropriate, in camera proceedings,’ so 

as to permit the action to proceed.” (Id. at p. 793, quoting 

General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164,

1191.) “Finally, a trial court should consider whether it would be 

‘fundamentally unfair’ to allow the action to proceed.” (Dietz, at 

p. 793.) 

In general, “a court may take the extraordinary step of 

dismissing a plaintiff’s claim on the ground that an attorney 

defendant’s due process right to present a defense is 

compromised by the defendant’s inability to present confidential 

information in support of that defense only in the rarest of cases, 

after the court has considered all of the factors discussed above.” 

(Dietz, supra, 177 Cal.App.4th at p. 794.) Dismissing an action

“whenever a lawyer’s ethical duties prevented the lawyer from 

presenting evidence having any relevance to the action, without 

respect to the materiality of the evidence” would render “the 

‘drastic action’ of dismissal” commonplace. (Id. at p. 792; see 

People ex rel. Herrera v. Stender (2012) 212 Cal.App.4th 614, 

646.)
33

2. The Dietz Factors Do Not Support Dismissal

We assume for purposes of this appeal that QED supplied 

confidential information relevant to Raines Feldman’s and Lohr’s 

defense and that QED has not waived the attorney-client 

privilege to allow Raines Feldman or Lohr to disclose it.7 With 

regard to the second Dietz factor, Block’s remaining claim does 

not for the most part depend on QED’s communications with 

Raines Feldman or Lohr. The evidence relating to this claim 

primarily involves communications between and among Block, 

Lohr, and the third parties with whom Lohr communicated on 

Block’s behalf, with the exception of evidence reflecting Lohr’s 

knowledge that QED disapproved of certain deals Block pursued. 

As discussed, however, Block submitted in opposition to the 

motion for summary judgment an email showing Lohr likely had 

knowledge of the scope of Block’s authority to enter into deals 

concerning projects he began while employed by QED. Thus, any 

other privileged communications relevant to Raines Feldman’s 

and Lohr’s defense are not “highly material” under Dietz. (See 

Dietz, supra, 177 Cal.App.4th at p. 795 [“merely because some 

evidence that might be beneficial to the defendant is protected by 

a privilege and is therefore not subject to discovery and/or may 

not be introduced in evidence” is not sufficient to dismiss an 

entire action]; id. at p. 794 [rejecting the argument that due 

process required dismissal if the defendant is “prevented . . . from 

7 Block disputes whether QED instructed Raines Feldman to 

maintain the confidentiality of QED’s communications with 

Raines Feldman and Lohr.
34

presenting ‘any of the relevant evidence that may bolster the 

defense’”].)8

The trial court did not make a specific finding on the third 

Dietz factor: the availability of ad hoc measures, such as privilege 

logs and protective orders, to permit the action to proceed. (See 

Dietz, supra, 177 Cal.App.4th at p. 793.) But the trial court 

suggested Raines Feldman and Lohr could have shown privileged 

information was “highly material” to their defense (the second 

Dietz factor) without exposing any such information “via a 

privilege log or other means, but [they] failed to do so.” Raines 

Feldman and Lohr argue the trial court erred because they 

submitted a privilege log in connection with a motion to compel 

8 Raines Feldman and Lohr argue Solin v. O’Melveny & 

Myers (2001) 89 Cal.App.4th 451 requires dismissal if any 

evidence relevant to their defense strategy is privileged. Unlike 

the information in this case or in Dietz, the clients’ information in 

Solin was critical to the defense because the information was the 

basis for the defendant’s allegedly negligent advice. (Solin, at 

p. 463; see id. at pp. 460-461 [the content of the privileged 

communication was “‘likely to prove outcome determinative 

before a jury’”].) Because “the central disputed issues” in Solin

were “‘incapable of complete resolution without breaching the 

attorney-client privilege,’” due process required dismissal. (See 

id. at pp. 466-467.) The same cannot be said of Block’s allegation 

that Lohr’s conflicted representation increased his liability to 

QED, which is based on Lohr’s negotiations and communications 

with third parties, not communications with QED. (See 

Dietz, supra, 177 Cal.App.4th at pp. 792-793 [distinguishing 

Solin and holding the defendants’ privileged information was not 

highly material because they could “present ‘a[ ] meaningful 

defense’” without “disclos[ing] privileged or confidential 

information”]; see also Reilly v. Greenwald & Hoffman, LLP, 

supra, 196 Cal.App.4th at p. 904.)
35

Block filed in discovery. Raines Feldman and Lohr, however, 

made no mention of the privilege log in their motions for 

summary judgment. Instead, Raines Feldman and Lohr argued 

only that Block’s suggestion the defendants seek “a sealing order 

allowing the privileged communications to be used” is barred by 

California law. Raines Feldman and Lohr, however, had the 

burden to show that sealing and protective orders, in camera 

proceedings, or other procedural mechanisms would not have 

been enough to allow the action to proceed. (See General 

Dynamics Corp. v. Superior Court, supra, 7 Cal.4th at p. 1191; 

Dietz, at p. 793.) They did not meet their burden.

Finally, fundamental fairness weighs against dismissal. 

“Fundamental fairness in this context is an extension of the 

principle that, ‘[t]he privilege which protects attorney-client 

communications may not be used both as a sword and a shield.’” 

(Dietz, supra, 177 Cal.App.4th at p. 793.) The court in Dietz

“noted the inherent unfairness in allowing a plaintiff to bring a 

claim, which, by its very nature necessitates a defense based on 

confidential information, where the plaintiff has either directly 

supplied such confidential information to the defendant, as in

Solin [v. O’Melveny & Myers (2001) 89 Cal.App.4th 451], or where 

the plaintiff seeks to derivatively represent a third party who has 

supplied such information to the defendant, as in” McDermott, 

Will & Emery v. Superior Court (2000) 83 Cal.App.4th 378. 

(Dietz, at p. 793; see Solin, at p. 463; see also McDermott, at 

p. 384.) Like the plaintiff in Dietz, Block did not supply any 

confidential information relevant to Raines Feldman’s and Lohr’s 

defense to Block’s remaining claim. (See Dietz, at p. 797 [the 

“plaintiff in this case did not participate in the sharing of 

confidential information with the defendant attorney”].) Because 

Block’s action “does not involve the affirmative use of the 

confidential information” (ibid.), notions of fundamental fairness 
36

do not dictate dismissal of Block’s action. This is not one of the 

rare cases where dismissal is appropriate. 

E. The Trial Court Should Allow Block To Refile His 

Motion for Leave To Amend

1. Relevant Proceedings

Block filed a motion for leave to amend his complaint on 

February 11, 2019, over two years after he filed his original 

complaint and two months after Raines Feldman and Lohr filed 

their motions for summary judgment. Block based his motion on 

what he characterized as newly discovered information from 

Lohr’s January 2019 deposition in which, according to Block, she 

testified she made knowingly false statements in the January 15, 

2015 conflict waiver letter. In particular, Block stated he learned 

in the deposition Lohr falsely stated in the conflict waiver letter 

she represented Block individually in matters related to the 

separation agreement between Block and QED. Block argued 

that he relied to his detriment on Lohr’s false representations 

and that, had Lohr been truthful, he would not have signed the 

conflict waiver letter and would not have consented to Raines 

Feldman’s representation of QED. Based on this evidence, Block 

proposed to add, among other things, a cause of action for 

intentional misrepresentation. 

Raines Feldman and Lohr opposed Block’s motion, arguing 

Block had known since filing the original complaint Lohr had 

taken the position she never represented Block personally.9 

9 Raines Feldman and Lohr also argued the proposed first 

amended complaint was a sham pleading and failed to allege 

facts constituting a cause of action because Block could not 

establish a causal relationship between the alleged 
37

Raines Feldman and Lohr cited Block’s allegation in the original 

complaint that Lohr “took the outrageous and patently false 

position that she had never represented Block,” an October 2015 

email from counsel for Lohr stating Lohr had never represented 

Block personally, and Lohr’s verified written discovery responses 

from March 2017 that stated: “Lohr has never represented 

[Block] personally, whether through LHR Enterprises, Raines 

Feldman, or otherwise. She has never had a written engagement

agreement with [Block] to represent him personally, in 

connection with his separation from [QED] or otherwise. She has 

never billed [Block], personally, for any services in connection 

with the separation or otherwise.” Raines Feldman and Lohr 

argued that “Block’s delay in seeking leave to amend is reason 

alone to deny his motion” and that Block’s delay prejudiced them 

because he filed his motion in response to their motions for 

summary judgment. 

In reply, Block drew a distinction between knowing that 

Lohr had previously taken the position she did not represent 

Block personally and learning that Lohr knowingly made false 

statements in the conflict waiver letter to induce him to sign it. 

Block stated he believed Lohr previously claimed she did not 

represent Block to get out of having to testify at the arbitration, 

but he did not realize until her deposition in January 2019 she 

used false statements to induce Block to sign the conflict waiver 

misrepresentation and his damages. Because the trial court 

agreed with Raines Feldman and Lohr’s argument that Block’s 

delay in filing his motion until after they had filed their motions 

for summary judgment was prejudicial, the trial court did not 

consider, and no party reasserts, these other reasons for denying 

Block’s motion for leave to amend. 
38

letter, presumably to allow her and Raines Feldman to represent 

a more lucrative client, QED. 

The trial court denied the motion, finding that Block 

“discovered nothing new regarding the truthfulness of Ms. Lohr’s 

conflict letter representations” and that Block could have 

included the proposed new causes of action in the original 

complaint. The court concluded Block’s “delay in presenting 

these amendments are unwarranted and prejudicial to 

defendants in light of the pending summary judgment motions.” 

2. Applicable Law

“‘[S]ection 473, subdivision (a)(1) permits a court, “in 

furtherance of justice,” to “allow a party to amend any pleading

. . . in any . . . respect.”’” (Duchrow v. Forrest (2013)

215 Cal.App.4th 1359, 1377.) “‘“Courts must apply a policy of 

liberality in permitting amendments at any stage of the 

proceeding, including during trial, when no prejudice to the 

opposing party is shown.”’” (Eng v. Brown (2018) 21 Cal.App.5th 

675, 706; see Duchrow, at p. 1377.) 

“‘Generally, “the trial court has wide discretion in 

determining whether to allow the amendment, but the 

appropriate exercise of that discretion requires the trial court to 

consider a number of factors: ‘including the conduct of the moving 

party and the belated presentation of the amendment. [Citation.]

. . . . The law is well settled that a long deferred presentation of 

the proposed amendment without a showing of excuse for the 

delay is itself a significant factor to uphold the trial court’s denial 

of the amendment.’”’” (Eng v. Brown, supra, 21 Cal.App.5th at 

pp. 706-707.) “‘“‘The law is also clear that even if a good 

amendment is proposed in proper form, unwarranted delay in 

presenting it may—of itself—be a valid reason for denial.’”’” (Id.
39

at p. 707; see Duchrow v. Forrest, supra, 215 Cal.App.4th at 

p. 1377; Fair v. Bakhtiari (2011) 195 Cal.App.4th 1135, 1147.) 

“On the other hand, where there is no prejudice to the adverse 

party, it may be an abuse of discretion to deny leave to amend.” 

(Fair, at p. 1147.) The appellant has the burden of establishing 

an abuse of discretion. (Eng, at p. 707.)

3. On Remand Block Should Have an Opportunity 

To Ask for Leave To Amend His Complaint 

Block argues the trial court abused its discretion in denying 

his motion for leave to amend the complaint because the court 

based its ruling on the erroneous finding that Block discovered 

nothing material during Lohr’s January 2019 deposition. Block 

argues it was not until Lohr’s deposition that he learned Lohr 

knowingly made false statements in the conflict waiver letter by 

stating she represented Block personally. Block contends his 

earlier knowledge Lohr denied ever personally representing 

Block was not sufficient to state a cause of action for intentional 

misrepresentation. Thus, Block argues, he did not delay in 

seeking leave to amend the complaint. 

Even if Lohr’s deposition testimony was not a critical 

(missing) element of Block’s proposed cause of action for 

intentional misrepresentation, our reversal of the judgment 

affects the ruling on Block’s motion for leave to amend. The trial 

court denied the motion for two reasons: (1) Block waited too 

long to file his motion for leave to amend and (2) Block filed his 

motion after the defendants filed their motions for summary 

judgment, which prejudiced the defendants. On the latter issue, 

the trial court cited Melican v. Regents of University of 

California (2007) 151 Cal.App.4th 168, where the court affirmed 

the denial of an oral request to amend the complaint during the 
40

hearing on a motion for summary judgment. (Id. at p. 177.) The 

court in Melican stated: “It would be patently unfair to allow 

plaintiffs to defeat [the defendant’s] summary judgment motion

by allowing them to present a ‘moving target’ unbounded by the 

pleadings.” (Id. at p. 176.) 

Because the motions for summary judgment are no longer 

pending, however, the basis for the trial court’s finding of 

prejudice no longer exists. There is only the delay in seeking 

leave to amend, which may or may not be sufficient to justify 

denial of the motion. It is unclear from the record, which 

indicates the trial court relied equally on the fact the motions for 

summary judgment were pending and on Block’s delay in seeking 

leave to amend, whether the court would have denied Block’s 

motion if the court had denied the motions for summary 

judgment. Therefore, on remand, the trial court should allow 

Block, if he chooses, to refile his motion for leave to amend his 

complaint.
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DISPOSITION

The judgment is reversed. The orders granting the motions 

for summary judgment and denying the motion for leave to 

amend are vacated. The trial court is directed to enter new 

orders denying the motions for summary judgment and to allow 

Block to refile his motion for leave to amend. The parties are to 

bear their costs on appeal. 

SEGAL, Acting P. J.

We concur:

FEUER, J.

DILLON, J.*

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.