Filed 11/16/22 Howard v. Solarz CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

MEIGHAN E.E. HOWARD, as 

Trustee, etc., 

Plaintiff and Appellant,

v.

M. NEIL SOLARZ et al.,

Defendants and Respondents.

B311973

(Los Angeles County 

Super. Ct. No. 19STCV31821)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Monica Bachner, Judge. Affirmed.

Levinson Arshonsky & Kurtz, Robert A. Levinson and Lori 

E. Eropkin for Plaintiff and Appellant.

Charlston, Revich, Harris & Hoffman, and Tim Harris for 

Defendants and Respondents.

_________________________________
2

INTRODUCTION

This is an appeal of a judgment after the trial court 

sustained a demurrer to the plaintiff’s first amended complaint 

as untimely. The court determined that, when the plaintiff 

commenced her action in 2019, more than one year had passed 

since her causes of action accrued under section 340.6 of the Code 

of Civil Procedure1—the limitations period the parties agree 

applies.

We are asked to consider whether the demurrer record 

supports such a determination. We find that it does. Some of the 

key facts underlying the plaintiff’s claims were alleged in a 

complaint against the plaintiff and defendants here in a separate 

action in 2017. Other key facts include that the plaintiff was 

sued in that action and was unable to easily dispose of it. Under 

the circumstances, including the plaintiff’s access to discovery in 

the separate action and the fact that she was represented in that 

action by independent counsel, there is no room for reasonable 

disagreement that plaintiff’s causes of action accrued more than 

one year before she sued the defendants. Accordingly, we affirm.

BACKGROUND2

Plaintiff and appellant Meighan Howard is the daughter of 

John Leroy Howard, M.D. (Dr. Howard) and Tommie Howard 

(Mrs. Howard). She is also the sister of John Cedric Howard. 

1 Subsequent undesignated statutory references are to the 

Code of Civil Procedure.

2 Because we are reviewing a judgment after a demurrer, 

we take the facts from the operative complaint—Meighan’s first 

amended complaint dated July 16, 2020—and from matters 

properly subject to judicial notice. (Heckart v. A-1 Self Storage, 

Inc. (2018) 4 Cal.5th 749, 753–754.)
3

We refer to Meighan and John Cedric by given names for clarity 

and not out of disrespect.

Defendant and respondent Weinstock Manion is a law 

corporation and Solarz is an attorney shareholder of Weinstock 

Manion. For convenience, we refer to the defendants simply as 

“Weinstock” except where the distinction between them is 

material. Weinstock provides estate planning services, including 

legal and tax advice, for high-wealth individuals. 

A. Meighan Works with Weinstock to Facilitate

Changes to Her Parents’ Estate Plan

Benefitting Her

In 2011, Dr. and Mrs. Howard engaged Weinstock to assist 

them in updating their joint estate plan. At the time, 

Dr. Howard was 85 years old and Mrs. Howard was 75. This 

representation extended at least through 2012 and resulted in, 

among other things, the creation of two irrevocable gift trusts

(one funded by Dr. Howard and the other by Mrs. Howard) and 

the modification of an existing family trust called the Howard 

Family Trust. The gift trusts were used to make irrevocable 

inter vivos gifts to Meighan, who was named trustee and sole 

beneficiary of each. These gifts were valuable, including a 

vacation home and ranch land in Hawaii and more real property 

in Pasadena. The effect of the family trust modification was to 

disinherit John Cedric and make Meighan the sole beneficiary of 

Dr. and Mrs. Howard’s estate (save for “a few specific gifts”

earmarked for others).

Throughout this process, Meighan interacted with 

Weinstock “on behalf of her parents.” But Weinstock also 

communicated with Dr. and Mrs. Howard directly, including in 

written correspondence, and Dr. and Mrs. Howard personally 
4

signed the trust instruments effecting the changes that 

benefitted Meighan.

Having come to trust Weinstock through their work for her 

parents, Meighan hired Weinstock in 2015 to prepare her own 

estate plan.

B. Dr. Howard Sues Meighan, Her Gift Trusts, and

Weinstock

In April 2017, Dr. Howard filed a complaint (the Initial

Howard Complaint) against Meighan, her two gift trusts, and

Weinstock, thereby commencing what we refer to as “Howard v.

Howard.” The Initial Howard Complaint contained a total of 15

counts. According to Meighan, the “essence” of the Initial

Howard Complaint was that “Meighan, [her gift trusts], Solarz,

and Weinstock acted jointly and conspired together to transfer

properties to Meighan without Dr. Howard’s knowledge by

creating irrevocable trusts in which Meighan was the sole

beneficiary and by disinheriting John Cedric from the Howard

Family Trust leading to Meighan ultimately being its sole

beneficiary.”

In addition to those counts asserted jointly against

Meighan, her gift trusts, and Weinstock, the Initial Howard

Complaint contained three counts against Weinstock only.

3 

3 We are not bound by Meighan’s characterization of the 

Initial Howard Complaint. Meighan requested and obtained 

judicial notice of the Initial Howard Complaint and, “where the 

allegations in the body of the complaint are contrary to 

documents incorporated by reference in it, we treat the 

documents as controlling over their characterization in the 

pleading.” (Executive Landscape Corp. v. San Vicente Country 

Villas IV Assn. (1983) 145 Cal.App.3d 496, 499.) As the trial 
5

These were for “Legal Malpractice,” “Disgorgement of Legal

Fees,” “Accounting,” and injunctive relief.

In support of the “Legal Malpractice” count, Dr. Howard

alleged that Weinstock communicated primarily with Meighan,

leaving Dr. Howard in the dark about changes to his estate plan. 

He alleged that Meighan established herself as the “primary

contact” with Weinstock for her parents and used this position to

effectuate changes to the Howard Family Trust and creation of

the gift trusts without Dr. Howard’s knowledge or consent. 

He further alleged that neither Meighan nor Weinstock “fully

informed [him] of the changes being made to his estate plan, and

[he] was, as a result, not aware of the changes being made.”

He further alleged that he signed the family trust amendment

and gift trust documents “[w]ithout being fully informed of the

provisions of these documents . . . .”

Dr. Howard also alleged that the benefits Meighan stood to

derive from the transactions created a conflict of interest to which

he did not consent. He alleged that Weinstock failed to obtain

Dr. Howard’s “informed written consent to represent [Meighan’s]

interests upon learning [Meighan] wanted [Dr. and Mrs. Howard]

to transfer several million dollars’ worth of property out of the

[Howard Family Trust] for [Meighan]’s benefit.” He further

alleged that Weinstock “actively favored [Meighan’s] interests . . .

without timely obtaining [Dr. Howard’s] informed written

consent to their concurrent representation of [Meighan] as

court did, we consider the Initial Howard Complaint and other 

judicially noticed documents for their existence and content but 

not for the truth of the matters asserted therein. (Glaski v. Bank

of America (2013) 218 Cal.App.4th 1079, 1090 (Glaski).)
6

required by Rule 3-310 of the California Rules of Professional

Conduct . . . .”

Dr. Howard ended up filing a total of three amended

complaints. The first amended complaint (the 1A Howard

Complaint) was filed on June 9, 2017. Most significant to our

analysis, the 1A Howard Complaint carried forward the “Legal

Malpractice” claim against Weinstock substantially as pled in the

Initial Howard Complaint.

Meighan and Weinstock each engaged their own separate

defense counsel in Howard v. Howard. Meighan engaged

Levinson Arshonsky & Kurtz, LLP (Levinson).

4 Through 

Levinson, Meighan unsuccessfully demurred to the 1A Howard

Complaint on July 11, 2017.

Meighan alleges in the FAC that, throughout the Howard

v. Howard proceedings, she and Weinstock each “took the

position that none of [them] had committed any wrongs against

Dr. Howard or the Howard Family Trust and that no conspiracy

as alleged by Dr. Howard existed between Meighan, [her gift

4 Although Meighan does not expressly allege as much in her 

FAC, the trial court specifically considered this fact in its ruling 

on Weinstock’s demurrer and Meighan does not challenge such 

consideration. There would be no merit in any such challenge. 

Meighan’s separate counsel is identified on numerous documents 

from Howard v. Howard of which the trial court took judicial 

notice and courts may take judicial notice of the attorney of 

record in another proceeding. (See Lewis v. Purvin (1989) 208

Cal.App.3d 1208, 1218 [“While the face of the cross-complaint 

does not reveal that Davis is the attorney of record for the 

Lewises in the complaint pending against Purvin, we are entitled 

to take judicial notice of this fact under Evidence Code sections 

452(d)(1) and 459”].)
7

trusts], and Weinstock. They each testified that Dr. Howard

consented to and instructed . . . Weinstock’s actions with respect

to Dr. Howard’s and Mrs. Howard’s estate plan and that Meighan

acted as a conduit for information to and from her parents and

. . . Weinstock.”

Dr. Howard filed his third amended complaint (the 3A

Howard Complaint) on September 24, 2018, more than a month

after trial commenced. The 3A Howard Complaint eliminated

multiple counts from prior complaints but carried forward the

“Legal Malpractice” claim against Weinstock substantially as

pled in the Initial Howard Complaint. 

Four days later, on September 28, 2018, the jury rendered

a verdict that Weinstock was liable to Dr. Howard under theories

of “Legal Malpractice,” “Breach of Fiduciary Duty,” and

“Constructive Fraud.” The jury found that Meighan was not

liable to Dr. Howard under any theory of the 3A Howard

Complaint.

C. Meighan Sues Weinstock

On September 9, 2019, Meighan, in her individual capacity

and as trustee of her gift trusts, filed a complaint against

Weinstock, thereby commencing the underlying action. The

complaint contains two counts, one for professional negligence

and the other for breach of fiduciary duty. 

Meighan’s professional negligence count alleges that the

various instruments benefitting her were “properly drafted” but

that Weinstock breached their duty to Meighan by “failing to act 

as reasonably careful estate planning attorneys” in three

fundamental respects: First, by “representing clients with 

conflicting or potentially conflicting interests” without obtaining 

“the necessary waivers.” Second, by failing to communicate with 
8

Dr. Howard in a manner that “would protect [Meighan] in case of 

an attack on the Trusts at a later time.” And third, by “failing to 

properly document” Dr. Howard’s intent to modify the Howard 

Family Trust and fund Meighan’s gift trusts by some means 

beyond obtaining his signature on the instruments, such as

obtaining his signature on another document confirming his 

intent, making a third party a witness to such intent, or 

videotaping a manifestation of that intent. 

Meighan alleged that these failures caused Dr. Howard to 

commence Howard v. Howard against her. She claimed as 

damages the legal fees and costs she incurred in defending the 

action, estimated in excess of $1.5 million, as well as losses 

flowing from temporary asset freezes the Howard v. Howard trial 

court imposed. 

Meighan’s breach of fiduciary duty count sought the same 

damages on the theory that Weinstock “breached their fiduciary 

duties” to her and her gift trusts by “causing Dr. Howard to 

commence litigation against [Meighan].” In the absence of such 

breach, she alleges, “Dr. Howard would not have commenced 

[Howard v. Howard] or such litigation would have been quickly 

and easily disposed of . . . .” 

As to the timing of her initial complaint, Meighan alleged

that she “did not discover, nor could have discovered through use

of reasonable diligence, [Weinstock’s] wrongful conduct against

[her] until September 28, 2018”—the date of the jury’s verdict in

Howard v. Howard. According to Meighan, whether Weinstock’s

actions with respect to her were proper “was contingent on the

outcome of [Howard v. Howard].” 
9

D. The Trial Court Dismisses Meighan’s Action on

Statute of Limitations Grounds

Weinstock demurred to Meighan’s initial complaint on,

among others, statute of limitations grounds. They asserted that

Meighan did not need a jury verdict against them to put her on

notice of potential claims; rather, the allegations of the Initial

Howard Complaint were sufficient. The trial court sustained the

demurrer for failure to plead around the one-year statute of

limitations imposed by section 340.6, subdivision (a), but gave

Meighan leave to amend.

Meighan filed an amended complaint (the FAC) that

elaborated on the allegations justifying her alleged delayed

discovery. For example, she added allegations that Weinstock

owed her additional fiduciary duties beginning in 2015 when she

hired them to prepare her personal estate plan and that she

trusted Weinstock. 

She further added that the Initial Howard Complaint and

the 3A Howard Complaint were materially different in that the

former “was based on a theory of conspiracy between Meighan

and [Weinstock] to intentionally defraud Dr. Howard,” whereas

the latter alleged damages “due to [Weinstock’s] actions,

regardless of whether [Weinstock] conspired with Meighan to

intentionally defraud him or intentionally to keep him unaware

of the full estate plan changes.” She bolstered her allegations

concerning the theory of the Initial Howard Complaint by

reference to discovery responses from Dr. Howard that all his

claims—even his “Legal Malpractice” claim—were premised on

misconduct by Meighan.
10

Meighan further added that Weinstock, in Howard v.

Howard discovery responses, denied the existence of any

conspiracy and contended that they effectively communicated

with, and acted at the direction of, Dr. and Mrs. Howard. She

also added that Weinstock separately told her the same. And she

added that Weinstock produced its entire file in the Howard v.

Howard proceedings, which contained direct communications

between Weinstock and her parents as well as instructions from

Meighan on behalf of her parents that Weinstock promised to

confirm with them.

Weinstock again demurred on statute of limitations

grounds, and the trial court again sustained the demurrer—this

time without leave to amend. A judgment of dismissal entered

and Meighan timely appealed.

DISCUSSION

I. Demurrer and Standard of Review

“When any ground for objection to a complaint . . . appears 

on the face thereof, or from any matter of which the court is 

required to or may take judicial notice, the objection on that 

ground may be taken by a demurrer to the pleading.” (§ 430.30, 

subd. (a).) The statute of limitations is one such “ground for 

objection to a complaint” and may therefore be raised by 

demurrer. (Cavey v. Tualla (2021) 69 Cal.App.5th 310, 325

(Cavey).)

“Generally, an order sustaining a demurrer on statute of 

limitations grounds is subject to de novo review on appeal. 

[Citation.] The untimeliness of the lawsuit must clearly and 

affirmatively appear on the face of the complaint and matters 

judicially noticed before an appellate court will affirm an order 

sustaining the demurrer. [Citation.] Under this standard, 
11

allegations in the complaint or judicially noticed materials 

showing the claim might be barred are not enough.” (Cavey, 

supra, 69 Cal.App.5th at p. 326.)

In conducting our review, “[w]e give the complaint a

reasonable interpretation and treat the demurrer as admitting

all material facts properly pleaded that are not inconsistent with

other allegations, exhibits, or judicially noticed facts. [Citations.] 

We need not accept as true, however, deductions, contentions or

conclusions of law or fact.” (Morris v. JPMorgan Chase Bank,

N.A. (2022) 78 Cal.App.5th 279, 292.) It is the plaintiff’s burden

to demonstrate that the trial court erred. (Id. at p. 293.)

We separately review for abuse of discretion a trial court’s 

denial of leave to amend in connection with the sustaining of a 

demurrer. (SLPR, L.L.C. v. San Diego Unified Port Dist. (2020) 

49 Cal.App.5th 284, 317.) In this regard, the plaintiff bears the 

burden to show that “there is a reasonable possibility that the 

defect in the complaint can be cured by amendment.” (Ibid.)

II. Analysis

A. The Trial Court Properly Sustained Weinstock’s

Demurrer

The parties agree that Meighan’s claims are subject to the 

one-year limitations period contained in section 340.6, 

subdivision (a), which 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 

. . . .” Section 340.6 further provides for the tolling of the 

limitations period until the plaintiff has, in relevant part,
12

“sustained an actual injury.” (§ 340.6, subd. (a)(1).) As such, 

accrual for purposes of section 340.6, subdivision (a), ordinarily

occurs when the aggrieved party (i) knows or should know of facts

constituting the wrongful act or omission; and (ii) suffers

appreciable and actual harm. (Samuels v. Mix (1999) 22 Cal.4th

1, 11.)

Meighan and Weinstock disagree as to when Meighan’s 

claims against Weinstock accrued. Meighan contends they 

accrued on September 24, 2018, the date of the 3A Howard 

Complaint, by which “Dr. Howard’s action against [Weinstock] 

took a sharp right turn” to allege wrongdoing by Weinstock 

“wholly distinct from any allegation of wrongdoing by Meighan.” 

According to Meighan, it was only at “th[is] moment [that she] 

went from alleged participant in the failure of professional 

services by [Weinstock] to potentially injured party.” Weinstock 

contends the limitations period began to run no later than July

17, 2017, when Meighan demurred to Howard’s first amended 

complaint. We, like the trial court did, agree with Weinstock.

1. Accrual May Be Decided on Demurrer

When discovery should have occurred or harm was

sustained are generally questions of fact. (Jordache Enterprises,

Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 743

(Jordache).) However, “courts should sustain demurrers based on 

section 340.6 in appropriate circumstances.” (Croucier v. Chavos

(2012) 207 Cal.App.4th 1138, 1145 (Croucier).) “[I]f the

undisputed facts do not leave any room for reasonable differences

of opinion, the question of when ‘a plaintiff reasonably should

have discovered facts for purposes of the accrual of a cause of

action or application of the delayed discovery rule . . .’ should be

decided as a matter of law, by evaluating the allegations in light
13

of matters that are properly subject to judicial notice.” 

(Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166,

175.)

2. Meighan’s Claims Against Weinstock Accrued 

More Than One Year Before She Sued Them

Meighan filed her demurrer to the 1A Howard Complaint

on July 17, 2017. The pleadings and documents of which the trial

court properly took judicial notice5 demonstrate that, by this

date, Meighan had information sufficient to cause her to discover

the facts constituting Weinstock’s wrongful acts and omissions

underlying the claims of the FAC. Specifically, by this date,

Meighan had notice of Dr. Howard’s legal malpractice allegations

against Weinstock and that Dr. Howard had sued her and

Weinstock. Moreover, Meighan incurred legal fees defending

Dr. Howard’s claims more than a year before she commenced her

action against Weinstock.

5 Meighan’s opening brief begins with an argument that the 

trial court “errantly employed judicial notice to resolve a disputed 

veracity and import of pleadings from [Howard v. Howard].” 

We are unpersuaded by this contention. Indeed, the trial court 

limited its judicial notice to the fact of the documents offered by 

the parties (without objection by either side). It specifically did 

not consider “the truth of the matters asserted” therein. Even if

the trial court had erred as Meighan asserts, we do not repeat the 

error in our independent analysis, rendering the point moot. We 

consider the judicially noticed documents only for their existence 

and content but not for the truth of such content. (Glaski, supra,

218 Cal.App.4th at p. 1090.)
14

a. Meighan Knew or Should Have Known of the

Wrongdoing Alleged in Her FAC from Dr.

Howard’s Legal Malpractice Allegations

A person should know of the facts constituting the wrongful 

act or omission once she “suspects or should suspect that her 

injury was caused by wrongdoing, that someone has done 

something wrong to her.” (Jolly v. Eli Lilly & Co. (1988) 44 

Cal.3d 1103, 1110 (Jolly).) The limitations period thus begins to 

run when a plaintiff “ ‘ “ ‘ “has notice or information of 

circumstances to put a reasonable person on inquiry . . . .” ’ ”

[Citation.] A plaintiff need not be aware of the specific “facts”

necessary to establish the claim; that is a process contemplated 

by pretrial discovery. Once the plaintiff has a suspicion of 

wrongdoing, and therefore an incentive to sue, she must decide 

whether to file suit or sit on her rights. So long as a suspicion 

exists, it is clear that the plaintiff must go find the facts; she 

cannot wait for the facts to find her.’ ” (Bergstein v. Stroock & 

Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 818

(Bergstein), quoting Jolly, supra, 44 Cal.3d at pp. 1110–1111.)

The wrongful acts or omissions underlying Meighan’s 

claims in the FAC are that: (1) Weinstock failed to obtain 

requisite conflicts waivers from Dr. and Mrs. Howard while 

communicating with Meighan about creating the gift trusts and 

modifying the Howard Family Trust for her benefit; 

(2) Weinstock failed to communicate with Dr. Howard in a 

manner that would protect Meighan in case he later challenged 

the gift trusts and family trust modifications; and (3) Weinstock 

failed to document Dr. Howard’s intent with respect to the gift 

trusts and family trust modifications beyond obtaining his 

signature on the relevant trust instruments.
15

There is no room for dispute that a reasonable person in 

Meighan’s situation would have made further inquiry concerning 

the wrongdoing alleged in the FAC based on the legal malpractice 

allegations contained in the Initial Howard Complaint and 

1A Howard Complaint. Meighan had notice of such allegations 

not later than July 17, 2017—more than a year before she 

commenced the underlying action—when she demurred to the 

1A Howard Complaint. This is so because, whether or not 

Meighan personally reviewed the 1A Howard Complaint, her 

counsel, Levinson, had to in order to prepare Meighan’s July 17, 

2017, demurrer. Levinson’s knowledge of the allegations in the 

1A Howard Complaint is imputed to Meighan for discovery 

purposes. (See Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 875

(Miller).)

Further, Meighan had the ability to investigate the 

allegations by virtue of her status as a party to the litigation, 

represented by independent counsel, where the allegations were 

made. As an example of the information available to her as a 

party, Meighan alleges that, in the course of discovery in Howard

v. Howard, Weinstock produced its “entire file related to Dr.

Howard and Mrs. Howard.” As further discussed below, even if

she made no other investigation, what was absent from that file

makes up the factual core of Meighan’s claims against

Weinstock.6

6 We acknowledge that Meighan may have gained access to 

Weinstock’s file later than the date of her demurrer to the 1A 

Howard Complaint. However, the precise date does not matter 

because the FAC reflects that Weinstock’s file was produced more 

than a year before Meighan sued Weinstock on September 9, 
16

As to the lack of a conflict waiver, Dr. Howard alleged in 

the 1A Howard Complaint that Weinstock failed to obtain his

“informed written consent to represent [Meighan’s] interests

upon learning [Meighan] wanted [Dr. and Mrs. Howard] to

transfer several million dollars’ worth of property out of the

[Howard Family Trust] for [Meighan]’s benefit.” He alleged that

Weinstock represented Meighan and her parents concurrently,

and, as the representation proceeded without Dr. Howard’s

informed written consent, it constituted a violation of Rule 3-310

of the California Rules of Professional Conduct then in effect

(governing, among other things, conflicts of interest). A review of

Weinstock’s file would have revealed the absence of a conflicts

waiver. Finding none would have permitted Meighan to make

her FAC allegations concerning Weinstock’s failure to obtain a

conflicts waiver.

As to the inadequacy of communication from Weinstock to

Dr. Howard, the 1A Howard Complaint is replete with allegations

that Weinstock failed to communicate the significance of

documents they had him sign. For example, Dr. Howard alleged

that (a) Weinstock failed to keep him “informed of any of the

changes being drafted into his estate plan”; (b) no one “fully

informed [him] of the changes being made to his estate plan, and

[he] was, as a result, not aware of the changes being made”; (c) no

2019: Meighan alleges that the discovery in Howard v. Howard

took place before trial commenced on August 20, 2018. And, 

Meighan had a full complement of discovery tools at her disposal 

after reviewing the 1A Howard Complaint to probe the existence 

or non-existence of conflicts waivers, supplemental 

documentation of intent, or any of the other documentation the 

absence of which Meighan claims caused her harm.
17

one “ever explained to [him] the consequences of making

irrevocable transfers of property to [Meighan]”; (d) “nobody fully

explained” to him the various trust instruments; (e) no one ever

“explained the provisions contained in the estate planning

documents [he] signed”; and (f) Weinstock had him sign other

documents whose “contents, effect and significance were not

explained to him.” Dr. Howard’s allegations, at a minimum, put

Meighan on notice there was a claim of deficient communication

by Weinstock. A review of Weinstock’s file would have revealed

the extent to which Weinstock documented its communication

with Dr. Howard and the quality of the communication so

documented. What she found would have allowed Meighan to

make her FAC allegations concerning the inadequacy of

Weinstock’s communication with Dr. Howard and/or its

documentation of such communication.

As to the failure to document Dr. Howard’s intent in

executing the trust instruments and other documents, the 1A

Howard Complaint contains allegations that Dr. Howard did not

intend the effect of these things. For example, Dr. Howard

alleged that (a) the only estate plan changes he ever understood

Weinstock was helping him make were “to ensure [John Cedric]

would receive his inheritance . . . over time rather than all at

once”; (b) “it was never a part of [his] expressed desires to make

immediate inter vivos and irrevocable gifts of property worth

several million dollars to [Meighan]”; (c) the revisions Weinstock

made to his estate plan “were a dramatic departure from his

desires”; (d) the trust instruments effected property transfers to

Meighan “without his knowledge or consent”; and (e) he had no

intent to execute the grant deeds that funded Meighan’s gift

trusts.
18

Even though Dr. Howard did not specifically allege the

absence of supplemental documentation (e.g., videos, third-party

witness, etc.) that Meighan complains of in the FAC, his

allegations of contrary intent were sufficient to put Meighan on

inquiry notice as to whether such supplemental documentation

existed. Meighan asserts she “knew” Dr. Howard’s allegations

that she overrode his intent were false when he made them. 

A reasonable person in her position of defending against these

allegations would have promptly ascertained—by, for example,

reviewing the Weinstock file to which she had access—whether

any evidence existed to corroborate her understanding of Dr.

Howard’s contemporaneous intent in 2012.

Meighan’s own theory of her case confirms as much. 

Meighan’s allegations are that a reasonably careful estate

planning attorney would have documented Dr. Howard’s intent in

a way that would have prevented Dr. Howard from suing her or,

at the very least, allowed Howard v. Howard to be “quickly and

easily disposed of instead of contested litigation and a lengthy

trial.” But Dr. Howard did sue her. And Meighan was unable to

“quickly and easily dispose[] of” Howard v. Howard. As alleged

in the FAC, “extensive discovery and heavily contested law and

motion” took place through as late as August 20, 2018, and the

ensuing mixed court and jury trail spanned more than a month.

Meighan surely knew before September 9, 2018—when she was

halfway through trial—that Weinstock failed to create the

silver-bullet documentation to avoid trial that Meighan claims it

should have.
19

Even if Meighan disbelieved Dr. Howard’s specific

allegations that Weinstock failed to obtain a conflicts waiver and

failed to adequately communicate to him the import of the trust

instruments, she ignored them at her own peril. They were made

in serial complaints signed by counsel. By each signature,

counsel certified that “[t]he allegations and other factual

contentions ha[d] evidentiary support or, if specifically so

identified, [we]re likely to have evidentiary support after a

reasonable opportunity for further investigation or discovery.” 

(§ 128.7, subd. (b)(3).) Dr. Howard’s allegations concerning a lack

of conflicts waiver and inadequacy of communication were made

without qualification concerning the need for further

investigation or discovery. Thus, by no later than July 2017,

Meighan had the certification of a member of the bar that the

basic allegations now underlying her complaint had evidentiary

support. A reasonable person in her situation would have

investigated these allegations. Given the access to information

her situation afforded her, such an investigation would have

uncovered the facts underlying her claims against Weinstock.

In short, the allegations on the face of the 1A Howard 

Complaint leave no room for reasonable difference of opinion: 

Meighan had knowledge of facts that, at the very least, were 

sufficient to put a reasonable person on inquiry of the conduct she 

alleges as wrongful in her FAC. We underscore that we reach

this conclusion without accepting that Dr. Howard’s allegations

were true; only that they were made. Meighan’s arguments to 

the contrary are unpersuasive.
20

i. Accrual Does Not Turn on Resolution of 

Meighan’s “Issues of Disputed Fact”

Meighan argues that the trial court erred in concluding 

that the 1A Howard Complaint put Meighan on notice of her 

claims against Weinstock because such conclusion rested on three 

“heavily disputed material issues of fact.” According to Meighan, 

these issues were (1) whether she controlled Dr. Howard’s estate 

at the time of the trust instruments; (2) whether she was the 

“sole conduit” between Weinstock and Dr. Howard; and

(3) whether Weinstock was serving her interests, and not 

Dr. Howard’s, in preparing the trust instruments. The 

fundamental problem with Meighan’s argument is she fails to 

demonstrate the relevance of these purported factual disputes.

As a preliminary matter, we review the trial court’s 

conclusion, not its reasoning. (Martis Camp Community Assn. v. 

County of Placer (2020) 53 Cal.App.5th 569, 610.) Thus, even if 

the trial court had employed the mode of analysis Meighan 

ascribes to it,7 it would not matter to the outcome of the appeal. 

It is Meighan’s burden on appeal to show that the purportedly 

disputed facts preclude determination of the accrual date at the 

demurrer stage. Meighan fails to demonstrate how 

disagreements about the degree of her control over the estate, the 

extent of her involvement in facilitating communications between 

7 This is not apparent from either the trial court’s decision or 

Meighan’s briefing. All citations in Meighan’s opening brief to 

where the purportedly disputed facts were discussed are to 

Weinstock’s demurrer papers, with further references to the FAC

or Meighan’s request for judicial notice in support of the FAC to 

show the claimed dispute. Meighan does not direct us to a 

resolution by the trial court of any of the three identified 

“disputed material issues of fact.”
21

Weinstock and Dr. Howard, or her understanding of legal ethics

meant accrual could not be determined on the pleadings and 

documents subject to judicial notice before the trial court.

As the trial court found, and as we affirm, supra, Meighan’s 

knowledge of the allegations of the 1A Howard Complaint in the 

context of Dr. Howard’s lawsuit against her and Weinstock is 

sufficient to charge her with knowledge of the facts underlying 

her later claims against Weinstock. She had knowledge of 

Dr. Howard’s allegations in 2017 without regard to whether she 

controlled Dr. Howard’s estate in 2011 and 2012 when Weinstock 

was planning and preparing the trust instruments; without 

regard to her status as an exclusive or non-exclusive conduit 

during that period; and without regard to whether she 

understood in 2017 that the conflict waiver she alleges in the 

FAC was obligatory was, in fact, obligatory.

Meighan argues that her status as a layperson meant she 

lacked “actual knowledge” in 2017 that would allow her “to 

identify whether [Weinstock] had committed negligence in the 

frequency, quality, or scope of communications with Dr. Howard, 

absent further investigation.” But accrual under section 340.6 

does not require her actual knowledge, nor does it disregard what 

she might have learned from “further investigation.”8 To the 

8 Meighan elsewhere states that she was “not properly 

charged with knowledge of [her] causes of action for malpractice 

and breach of fiduciary duty until [she] had an opportunity to 

investigate, to obtain a more complete view of [Weinstock’s] 

actual services, and to learn that Dr. Howard was the victim of 

[Weinstock’s] negligence.” This again misstates the law. The 

one-year limitation period affords the prospective plaintiff the 

opportunity to investigate the facts and determine whether to 
22

contrary, a plaintiff is charged with knowledge of facts she does 

not know but would know if she had performed the investigation 

a reasonable person would have under the circumstances. 

(Bergstein, supra, 236 Cal.App.4th at p. 818.) Further, it was not 

necessary that Meighan understood the specific legal theory that 

the discoverable facts would support. (Croucier, supra, 207

Cal.App.4th at p. 1146.) The discoverable facts alone are

sufficient to trigger accrual.

For this reason, too, Meighan did not need to understand 

what gave rise to the need for a conflict waiver to be put on 

inquiry notice that Weinstock failed to obtain one when it should 

have. Dr. Howard’s complaints alleged there was none and that 

one was needed. Meighan argues that Dr. Howard’s allegations 

were not sufficient to put her on notice because he alleged that a 

conflicts waiver was necessary only because Meighan was using 

Weinstock “to accomplish a fraud upon Dr. Howard” and she 

knew she was not attempting to defraud him. Whether or not 

this is a reasonable interpretation of Dr. Howard’s allegations 

concerning conflict waivers, Meighan again is putting theory over 

facts. Meighan was aware that she was heavily involved in 

Weinstock’s work for Dr. and Mrs. Howard—in her words, 

“a conduit for information to and from her parents and . . . 

Weinstock.” She was also aware that the work greatly benefitted 

her. For example, she knew that, by Weinstock’s work, she 

received the Hawaiian vacation home, the Hawaiian ranch land,

and a property in Pasadena, and she also became the sole 

sue. (See Miller, supra, 33 Cal.3d at p. 875 [duty to investigate 

triggered by “facts which would make a reasonably prudent 

person suspicious”].) It does not await her investigation once she 

is on inquiry notice.
23

beneficiary of the Howard Family Trust. Finally, Meighan was 

aware that Weinstock’s failure to obtain a conflicts waiver 

contributed to the harm she complains of in the FAC: Dr. Howard 

suing to attack the validity of Weinstock’s work that she 

facilitated and resulted in tremendous benefits to her. These 

facts were sufficient to put her on inquiry notice as to the 

necessity of a conflicts waiver under the circumstances, even if 

the circumstances proved not to be what Dr. Howard was alleging 

at the time.

Simply put, resolution of Meighan’s “disputed facts” is 

unnecessary to conclude that, with notice of Dr. Howard’s 

allegations in the 1A Howard Complaint, Meighan, through use 

of reasonable diligence, should have discovered the facts 

constituting the wrongful acts or omissions underlying the FAC. 

By no later than July 2017, Meighan had notice of allegations of 

wrongdoing by Weinstock in the 1A Howard Complaint that 

Meighan later adopted as her own. Under the circumstances, 

that was enough to commence the limitations period for her to 

commence an action based on those allegations herself.

ii. Dr. Howard’s Factual Allegations, Not His Legal 

Theories, Are What Put Meighan on Inquiry

Notice.

Meighan also argues that the malpractice allegations in the 

1A Howard Complaint were insufficient to put her on notice of 

the facts underlying her claims because they were intertwined 

with Dr. Howard’s fraud allegations that she knew to be, and 

were later proven to be, false. She reasons that it was not until

the September 24, 2018, 3A Howard Complaint, wherein Dr. 

Howard dropped his fraud allegations and added his constructive 

fraud claim against Weinstock, that she was properly charged 

with notice of Weinstock’s wrongful acts. We cannot agree.
24

The factual allegations of inadequate communication and 

documentation and lack of waiver were there for her to see from 

the Initial Howard Complaint on through the 3A Howard 

Complaint. They were not dependent on the fraud allegations or 

fraud theories.

9 Indeed, Meighan’s acknowledgement that the 

3A Howard Complaint’s constructive fraud allegations were 

sufficient to put her on notice is a concession that the legal 

malpractice allegations in the 1A Howard Complaint were, too. 

The operative allegations underlying the new constructive fraud 

count were that Weinstock had a fiduciary duty to Dr. Howard;

that Weinstock failed to explain or disclose to Dr. Howard the 

purpose and effect of the estate planning documents; that those 

documents did not align with Dr. Howard’s intentions; and that 

Dr. Howard suffered harm in the form of lost assets and legal 

fees as a result. None of these alleged facts were novel.

Weinstock’s fiduciary duty flowed directly from a fact 

known to Meighan from 2011: that Weinstock acted as 

Dr. Howard’s attorneys. (GAB Business Services, Inc. v. Lindsey 

& Newsom Claim Services, Inc. (2000) 83 Cal.App.4th 409, 416, 

disapproved on other grounds in Reeves v. Hanlon (2004) 33 

Cal.4th 1140, 1154 [fiduciary duty to clients imposed on 

9 Meighan refers to an interrogatory response from 

Dr. Howard which she characterizes as stating “that even 

[Dr. Howard’s malpractice claim against [Weinstock] was based 

on Meighan’s alleged conspiracy with [Weinstock].” This does not 

diminish Dr. Howard’s specific allegations of independent 

failures by Weinstock. That they may have been offered as the 

basis for one theory of wrong does not mean that the same facts, 

or the facts that would have been uncovered if Meighan had 

made a reasonable investigation, would not also support a 

different theory.
25

attorneys by law].) The 1A Howard Complaint included

allegations that Weinstock “never explained the provisions 

contained in the estate planning documents” to Dr. Howard. 

And the purpose of the 1A Howard Complaint was to recover the 

assets transferred pursuant to those estate planning documents 

because Dr. Howard alleged he never intended the transfers. 

Relatedly, Meighan’s 2017 notice of the facts alleged in the 

1A Howard Complaint that form the basis of her claims against 

Weinstock distinguish her situation from those of the plaintiffs in 

Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797 (Fox) and 

E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 

1308 (E-Fab). In Fox, the plaintiff sued her doctor for 

malpractice relating to a failed surgery and then, through 

discovery, learned that a medical device her doctor used during 

the surgery might have been defective and contributed to her 

injury. (Fox, supra, 35 Cal.4th at p. 804.) When she sued the 

device manufacturer, it demurred on grounds that her cause of 

action against it accrued at the same time as her cause of action 

against the doctor. The Supreme Court held that her suspicion of 

the doctor’s malpractice did not necessarily charge her with 

suspicion of the manufacturer’s device defect: “a diligent 

plaintiff’s investigation may only disclose an action for one type of 

tort . . . and facts supporting an entirely different type of tort 

action . . . may, through no fault of the plaintiff, only come to 

light at a later date.” (Id. at p. 814.) It was only through 

discovery that the plaintiff was reasonably able to learn about 

issues with the medical device.
26

E-Fab presents a similar fact pattern. In that case, the

plaintiff discovered that an employee, referred to it by a staffing 

agency, had embezzled money from the plaintiff. (E-Fab, supra, 

153 Cal.App.4th at p. 1313.) This prompted a criminal 

investigation during which the police informed the plaintiff that 

the employee had a criminal record prior to being referred by the 

staffing agency. Only then did the plaintiff realize that the 

staffing agency had failed to discover or disclose the criminal 

record. (Id. at p. 1314.) When the plaintiff sued the embezzler 

and the staffing agency, the staffing agency demurred, arguing 

the plaintiff’s causes of action accrued in the year it provided 

staffing services (when the embezzlement also began). The Court 

of Appeal disagreed, concluding that the accrual was not earlier 

than when the police notified the plaintiff of the embezzler’s 

criminal record. It was only through the police investigation that 

the plaintiff was reasonably able to learn that the staffing 

agency’s representations about its screening efforts were false. 

(Id. at p. 1323.)

Here, the allegations sufficient to put Meighan on notice of 

the facts underlying Weinstock’s alleged wrongful acts were not 

hidden from Meighan until some later event. Starting with the 

Initial Howard Complaint and in each one thereafter, they were 

there for her to see. That in the earlier complaints they were 

mixed with allegations of other wrongful acts used to support 

other theories of recovery—that they were not, in Meighan’s 

words, in a “spotlight”—did not render them invisible. Meighan 

needed only to give any of the complaints a reasonably careful

read to be aware of the allegations that Weinstock had committed 

the wrongful acts or omissions Meighan alleges in the FAC. Fox

and E-Fab are inapposite.
27

iii. Meighan’s Engagement of Weinstock to Prepare 

Her Personal Estate Plan in 2015 Does Not 

Affect Her Duty to Investigate Dr. Howard’s 

Allegations

Meighan argues that, because she “was in [a] fiduciary 

relationship with [Weinstock]” at the time she is charged with 

having gained knowledge of their wrongdoing, accrual was 

delayed until she actually discovered Weinstock’s wrongdoing. 

She further argues that, because of their fiduciary relationship, 

she was entitled to rely on “assurances” Weinstock gave her 

about their dealing with Dr. Howard.

In support of her arguments that her relationship with 

Weinstein reduced her burden of discovery, Meighan cites 

authority that “[a] client damaged in the context of an attorneyclient relationship is under no duty to investigate [the] attorneys’

actions unless [the client] has actual notice of facts sufficient to 

arouse the suspicions of a reasonable person” (italics added); and 

that once attorneys “undertake to represent [a client], [the client 

is] entitled to rely on their recommendations as licensed 

professionals and to assume they were acting solely in [the 

client’s] best interest.” (Johnson v. Haberman & Kassoy (1988) 

201 Cal.App.3d 1468, 1476 (Johnson).) However, Meighan cites 

no authority imposing a reduced burden of discovery based on a 

fiduciary relationship under the circumstances presented here.

Weinstock’s wrongdoing allegedly occurred when they were 

estate planning attorneys for Meighan’s parents. Approximately 

three years after that representation concluded, Meighan hired 

Weinstock as her own estate planning attorneys. But when 

Dr. Howard sued Meighan and Weinstock approximately two 

years later, Meighan hired Levinson as her own independent 

counsel. It was while Meighan was represented by Levinson in 
28

Howard v. Howard that Meighan was charged with knowledge of 

Dr. Howard’s allegations sufficient to put her on inquiry notice. 

Meighan cites no case in which a plaintiff’s discovery burden was 

reduced as to facts discoverable while represented by separate 

counsel in connection with the matter in which the wrongdoing 

was alleged to have occurred.

In Johnson, supra, 201 Cal.App.3d 1468, the plaintiff

alleged his lawyers committed malpractice while representing 

him in connection with a limited partnership interest. He alleged 

that his lawyers gave him bad advice to sell his interest at a loss. 

Approximately six years later, a second lawyer advised him of the 

flaw in his former lawyers’ advice and that his former lawyers 

had secretly undertaken an adverse representation around the 

time that they gave the flawed advice. (Id. at p. 1472.) When the 

plaintiff sued his former lawyers, they obtained summary 

judgment on statute of limitations grounds. The appellate court 

reversed and found that the plaintiff did not discover his claims 

until the second lawyer alerted him to the first lawyers’ 

wrongdoing. (Id. at p. 1478.)

In its analysis, the Johnson court noted that “[a] client 

damaged in the context of an attorney-client relationship is under 

no duty to investigate his attorneys’ actions unless he has actual 

notice of facts sufficient to arouse the suspicions of a reasonable 

person.” (Johnson, supra, 201 Cal.App.3d at p. 1476.) Once a

client has engaged counsel in a matter, it continued, the client is

“entitled to rely on their recommendations as licensed 

professionals and to assume they were acting solely in his best 

interest.” (Ibid.) A rule failing to respect such an entitlement, 

the court reasoned, “would in effect require a client to consult a 

second lawyer in every case for another opinion.” (Ibid.) In 
29

recognition of “the inability of the layman to detect 

misapplication,” the Johnson court applied relaxed discovery 

rules in that case. (Id. at p. 1477.)

While Meighan may have been a client of Weinstock’s when 

Dr. Howard sued them, her claimed harm did not arise “in the

context of” that relationship. Rather, it arose from work that 

Weinstock had done for Meighan’s parents. And Meighan did not 

hire Weinstock, her co-defendant, to represent her when Dr. 

Howard sued them. Instead, she hired Levinson. Thus, she was 

relying on Levinson, and not Weinstock, for legal advice in 

connection with Howard v. Howard. Moreover, because she was 

represented by Levinson, subjecting Meighan to the duty to 

investigate Dr. Howard’s allegations made in Howard v. Howard

would not burden her with consulting a new lawyer regarding 

Weinstock’s actions—she already had one. To treat her as an 

“unsophisticated lay[person]” as the Johnson court treated the 

plaintiff in that case before he obtained independent counsel 

would be to disregard these material differences.

Electronic Equipment Express, Inc. v Donald H. Seiler & 

Co. (1981) 122 Cal.App.3d 834 (Electronic Equipment) was an 

appeal following a verdict for the plaintiff business in an 

accounting malpractice case. The defendant accounting firm 

challenged the sufficiency of the evidence supporting the 

conclusion that the plaintiff’s claims were not time barred. 

In discussing the evidence supporting delayed discovery, the 

court noted the plaintiff’s president’s lack of “knowledge of 

financing and accounting” as justifying his reliance on the 

accounting firm. That justifiable reliance continued until the 

business hired a new accountant to replace the defendant 

accounting firm. (Id. at pp. 842, 849.) The court found 
30

substantial evidence supported the conclusion that only the new 

accountant’s professional assessment of the old accounting firm’s 

work, and not the president’s knowledge of accounting 

discrepancies, were enough to trigger accrual. (Id. at p. 849.) 

The court separately noted that the date of discovery was “moot”

due to damages not occurring until later. (Id. at p. 851, fn. 4

[“since the jury found that no actual damages had occurred until 

after September 19, 1973, the date respondents discovered the 

negligence is moot”].) Given the procedural posture and 

alternative basis for the result, we do not view the facts in 

Electronic Equipment as compelling reversal in this case. 

Even setting these issues aside, the deference the Electronic 

Equipment president received as a layperson unversed in 

accounting did not extend into the period that the plaintiff had a 

new accountant assisting it in the matter in which the prior 

accountant’s wrongdoing occurred.

In Sherman v. Lloyd (1986) 181 Cal.App.3d 693, the 

plaintiff was a limited partner in a partnership. The general 

partner had specifically told the plaintiff that the partnership 

was properly structured. Later, the plaintiff obtained 

independent counsel who advised that the partnership was not 

properly structured. The appellate court held that “[s]ince [the 

plaintiff] was in a fiduciary relationship with [the general 

partner], he was entitled to rely on [the general partner’s] 

statements concerning the propriety of the investment structure. 

As such, [the plaintiff]’s cause of action did not accrue until he 

learned from counsel that the investment structure may have 

been improperly created.” (Id. at p. 700.) Here again, the delay 

in discovery did not extend into the time that the plaintiff had 
31

independent counsel to advise him in the matter in which the 

wrongdoing was alleged to have occurred.

Gutierrez v. Mofid (1985) 39 Cal.3d 892, underscores the 

effect on discovery of a plaintiff’s consultation with an 

independent fiduciary. In that case, the plaintiff suspected her 

doctors of malpractice and consulted an attorney about it. 

The attorney told her she had no provable claim. (Id. at p. 896.) 

She later consulted a second attorney, who advised that she did 

have a claim, and sued the doctors. (Ibid.) The trial court 

entered summary judgment for the doctors on statute of 

limitations grounds. The Supreme Court affirmed. It held that 

the first lawyer’s advice that the plaintiff had no claim did not 

serve to extend her discovery period, finding no good reason to 

“extend[] a defendant’s exposure when, despite plaintiff’s 

discovery of the facts constituting his claim, and without 

defendant’s fault, plaintiff is dissuaded from suit by the conduct 

of a third person.” (Id. at p. 899.) It explained, “insofar as 

‘constructive notice’ and ‘diligent investigation’ affect the 

computation of the limitations period, the plaintiff is generally 

charged with the lapses of attorneys acting in his behalf.” (Id. at 

p. 900.) Put another way, Meighan’s authorities suggest that a 

layperson advised by counsel who is independent of the 

wrongdoer is not treated as a layperson for the purposes of 

calculating accrual.

In urging that her discovery burden was reduced because 

she engaged Weinstock in 2015 in an unrelated matter, Meighan 

simply ignores that she was represented by Levinson in 2017 in 

Howard v. Howard. That Levinson was representing Meighan at 

the time was dispositive in the trial court’s analysis. The cases 

Meighan cites in her briefing reflect that independent 
32

representation is material. Even though our review is 

independent, it is Meighan’s burden to show error in the trial 

court’s decision. (See Claudio v. Regents of the University of

California (2005) 134 Cal.App.4th 224, 252.) She cannot meet 

this burden by ignoring facts her own cases show to be 

significant.

Even if the reduced discovery burden applied here based on 

the alleged fiduciary relationship between Meighan and 

Weinstock, we would not find it useful to Meighan. As to the 

relaxed actual notice requirement, Meighan does not contend she 

lacked actual knowledge of the allegations that we have 

concluded were sufficient to put her on inquiry notice. Indeed, 

she concedes actual notice in her reply brief, acknowledging 

“actual notice of the[] allegations [of the 1A Howard Complaint] 

in 2017.” 

As to her claimed right to rely on Weinstock’s purported 

“assurances” they committed “no wrongdoing,” the actual alleged 

assurances are irrelevant to her later claims. The specific 

“assurance” Weinstock provided Meighan is alleged in the FAC as 

follows: “During [Howard v. Howard], Solarz . . . directly 

communicated with Meighan and denied any conspiracy between 

them” and Meighan’s parents “understood their estate plans” and 

“consented to their estate plans as prepared by . . . Weinstock.”

These “assurances” did not address Dr. Howard’s allegations that 

now form the basis of Meighan’s claims. Nowhere does Meighan 

allege that Weinstock assured her that they obtained all 

necessary conflict waivers. Denying “any conspiracy” is not a 

denial of all allegations of “wrongdoing” where some of the 

alleged acts or omissions amounted to wrongdoing in the absence 

of any conspiracy. And contending that Dr. and Mrs. Howard 
33

“understood” and “consented to” their estate plans is not an 

assurance that Weinstock “communicate[d] with [Dr. and Mrs. 

Howard] in a manner which would protect [Meighan] in case of 

an attack on the Trusts at a later time.”10

Indeed, Meighan’s FAC includes allegations that 

Dr. Howard did consent to and understand his estate plan. 

For example, Meighan alleges that (a) Dr. Howard “wished to 

have Meighan act as trustee” and “intended Meighan as the sole 

beneficiary” of the gift trust he funded; (b) making Meighan the 

sole beneficiary of the Howard Family Trust and disinheriting 

John Cedric was “in accordance with Dr. Howard’s . . . wishes”

and was his “express desire”; (c) Weinstock summarized for Dr. 

Howard the instruments contemplated to effect these objectives 

in October and November of 2012; and (d) Dr. Howard executed 

these instruments on December 18, 2012. Thus, Meighan’s own 

pleadings reflect that assurances of consent and understanding 

are not incompatible with failure to communicate with Dr. 

Howard or document his intentions in a manner that would 

protect the transactions benefitting Meighan from later attack.

b. Meighan Suffered Actual Injury More Than a

Year Before She Sued Weinstock

The primary harm Meighan alleges in her FAC is an

estimated $1.5 million in “attorneys’ fees and costs” that she

10 Meighan also points to Weinstock discovery responses 

wherein they deny failing to communicate with Dr. Howard.

But this is not incompatible with Meighan’s claims in her FAC 

that Weinstock failed to adequately communicate with Dr. 

Howard, e.g., “in a manner which would protect [Meighan] in 

case of an attack on the Trusts at a later time.” Indeed, the FAC 

reflects that Weinstock did communicate with Dr. Howard, and 

even includes copies of illustrative correspondence as exhibits.
34

incurred defending herself in Howard v. Howard. Meighan

argues that when she first suffered this harm is not susceptible

to determination on demurrer because the timing of “actual

injury” for accrual purposes requires “a case-by-case analysis,

without many bright-line rules.”

“The determination of actual injury requires only a factual

analysis of the claimed error and its consequences. The inquiry

necessarily is more qualitative than quantitative because the fact

of damage, rather than the amount, is the critical factor.

[Citation.] [¶] Of course, nominal damages will not end the

tolling of section 340.6’s limitations period. . . . Instead, the

inquiry 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.” (Jordache, supra, 18 Cal.4th at p. 752.)

The parties’ arguments concerning actual injury refer to

judicially noticed documents. Meighan acknowledges her own

declaration testimony that “Dr. Howard had notified [her] of the

alleged wrongdoing of [Weinstock] as early as January 2017,

causing her to retain counsel.” But she claims that the reference

to “wrongdoing” is ambiguous and could have referred either to

alleged actual fraud or to simple negligence, resulting in a

disputed issue of material fact. Weinstock ignores this argument,

and further notes Meighan’s acknowledgment below that “at all

times prior to September, 2018, [she] incurred legal fees to defend

against claims of intentional torts committed in an alleged

conspiracy.”
35

We do not view the type of wrongdoing Dr. Howard told

Meighan he thought Weinstock had committed as material to the

determination of when Meighan was harmed. Meighan claims in

the FAC that deficiencies in Weinstock’s work rendered the asset

transfers and estate plan changes benefitting her susceptible to

attack. To put it broadly, Meighan alleges that Dr. Howard

would have had no colorable claims if Weinstock had properly

discharged their duties: but for Weinstock’s failures, “Dr. Howard

would not have commenced litigation against Meighan . . . or

such litigation would have been quickly and easily disposed of

instead of contested litigation and a lengthy trial.” Thus, the

$1.5 million damages she claims is not limited to any particular

theory underpinning Dr. Howard’s eventual attack. In

particular, it is not limited to fees and costs Meighan incurred

defending Dr. Howard’s claims against Weinstock for their

professional negligence. Meighan generally claims for the fees

and costs she incurred “in defending herself,” individually and as

trustee, in Howard v. Howard. (Italics added.) Put simply,

Meighan’s claimed damages are because Dr. Howard sued her

and Weinstock’s work did not allow Meighan to quickly and

easily dispose of his claims. Dr. Howard’s changing legal theories

are irrelevant.

Further, the face of the FAC reflects that a material portion

of Meighan’s claimed damages was incurred more than year

before Meighan sued Weinstock on September 9, 2019. 

Dr. Howard sued Meighan on April 10, 2017. Meighan alleges

that “extensive discovery and heavily contested law and motion”

practice occurred prior to trial, which commenced August 20,

2018, and culminated in a jury verdict on September 28, 2018. 

It would be unreasonable to read Meighan’s complaint as
36

permitting that all or substantially all of Meighan’s $1.5 million

in claimed legal fees were incurred after September 9, 2018,

such that only some nominal amount was incurred in the

preceding 17 months the lawsuit was pending. Those same

17 months encompassed “extensive discovery,” “heavily contested

law and motion,” and the first 20 calendar days of trial.

For these reasons, we conclude that the actual injury

Meighan alleges occurred more than a year before she sued

Weinstock. Because she also should have discovered her injury

more than a year before she sued Weinstock, her claims are time

barred and the trial court properly sustained Weinstock’s

demurrer.

B. Leave to Amend

Meighan cites Fox, supra, 35 Cal.4th at page 810, for the 

proposition that it is abuse of a trial court’s discretion to deny 

leave to amend when there is a reasonable probability that a 

complaint’s defect can be cured. Weinstock responds that the 

trial court did not err in denying her “pro forma and five-line 

request for leave to amend” contained in her opposition to 

Weinstock’s second demurrer.11 Be that as it may, a plaintiff 

may show entitlement to leave to amend for the first time on 

appeal. (Rakestraw v. California Physicians’ Service (2000) 81 

Cal.App.4th 39, 43 (Rakestraw).)

11 Meighan’s request to the trial court was as follows: 

“Plaintiffs should be given leave to amend to add evidentiary 

facts as well, including Weinstock’s own admissions made in the 

[Howard v. Howard] and its own identification of facts, 

witnesses, and documents denying any legal malpractice as 

alleged by Dr. Howard.” 
37

To show such entitlement, a “plaintiff ‘must show in what 

manner he can amend his complaint and how that amendment 

will change the legal effect of his pleading.’ [Citation.] The 

assertion of an abstract right to amend does not satisfy this 

burden. . . . [Proposed] [a]llegations must be factual and specific, 

not vague or conclusionary. [Citation.] [¶] The burden of 

showing that a reasonable possibility exists that amendment can 

cure the defects remains with the plaintiff; neither the trial court 

nor this court will rewrite a complaint. Where the appellant 

offers no allegations to support the possibility of amendment and 

no legal authority showing the viability of [his] causes of action, 

there is no basis for finding the trial court abused its discretion 

when it sustained the demurrer without leave to amend. 

[Citations].” (Rakestraw, supra, 81 Cal.App.4th at pp. 43–44.)

Meighan fails to satisfy her burden. She first asserts that

she “can plead additional facts evidencing [her] lack of complete

authority and control over Dr. Howard’s estate at the time he

retained [Weinstock] to perform the estate plan update.”

She then offers the conclusion that her lack of actual control over

Dr. Howard’s estate or his relationship with Weinstock renders

her “not reasonably charged, as of 2017, with knowledge of the

omissions that occurred” in the course of Weinstock’s work. She

offers no authority for this conclusion and we are aware of none. 

As discussed above, Meighan was properly charged with

knowledge of the wrongdoing she alleges against Weinstock

because the core facts underlying that wrongdoing were alleged

in Dr. Howard’s complaints against her and Weinstock, including

in the July 2017 1A Howard Complaint. The degree of Meighan’s

control over the Howard estate in 2011 and 2012 does not affect

her duty to investigate those allegations.
38

Meighan next asserts that she can plead more examples,

from Weinstock’s file produced in Howard v. Howard, of

Weinstock’s “direct dealings and communications with

Dr. Howard concerning the 2011 and 2012 Trust Instruments.”

These, Meighan argues, would establish that she did not

“command or control all communications between Dr. Howard

and [Weinstock],” showing that “she did not read the complaint in

[Howard v. Howard] from a place of inherent and actual

knowledge of all communications between [Weinstock] and the

omissions therein.” First, Meighan fails to identify what her new

allegations would be. And second, she again fails to establish

what legal significance they would have. She did not need to

know the full nature and extent of the communications between

Dr. Howard and Weinstock to have her suspicions aroused by

Dr. Howard’s allegations that the communications were

inadequate.

Finally, Meighan asserts that she “could allege, in more

detail, the timing of [Weinstock’s] production of their file,” as

well as other “sworn testimony provided by [Respondents]” (of

undisclosed content), that “will confirm [her] reasonable diligence

in investigating the fraud claims and the proper accrual of [her]

present claims no earlier than September 2018.” Again, Meighan

fails to identify what her allegations would be. And she again

fails to explain the legal basis for her conclusion that the

undisclosed allegations would assist her.

For these reasons, Meighan has failed to show entitlement

to leave to amend.
39

DISPOSITION

The judgment is affirmed. Weinstock shall recover their 

costs on appeal.

HARUTUNIAN, J.*

We concur:

GRIMES, Acting P. J.

WILEY, J.

* Judge of the San Diego Superior Court, assigned by the 

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

Constitution.