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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

MEIG H AN E.E. HOWARD

, as

Trustee, etc.,

Plaintiff and Appellant

,

v.

M. NEIL SOLARZ et al

.,

Defendant s and Respondents

. B3 1 1973

(Los Angeles County

Super. Ct. No. 19 STC V31821 )

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 o f action accrued under section 340.6 of the Code

of Civil Procedure 1

— 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 acti on accrued more than

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

BACKGROUND 2

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,

w e 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 conv enience, 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 Fac ilitate

Changes to Her Parents’ Estate Plan

Benefit ting 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 , wh o 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”

ear marked for others).

Throughout this process, Meighan interacted with

Weinstock “o n behalf of her parents. ” But Weinstock also

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

written correspondence, and Dr. and Mrs. Howard personally4

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 Mei ghan, 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 Ini tial Howard Complaint and, “ w here 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 trial5

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 F amily T rust 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 chang es 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 docu ments

. . . .”

Dr. Howard also alleged that the benefits Meighan stood to

derive from the transactions created a conflict of interest to w hich

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 o f the

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

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

. . .

without timely ob taining [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

C onduct

. . . .”

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.

Meig h an and Weinstock each engaged their own separate

defense counsel in Howard v. Howard

. Meighan engaged

Levinson Arshonsky & Kurtz, LLP (Levinson)

. 4 Th r ough

Levinson, Meighan unsuccessfully demurred to the 1A Howard

Complaint on July 11, 2017.

Meighan alleges in the FAC that, t hroughout 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.

Meigh an’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 1 208, 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 W e instock. 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. Ho ward 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 with8

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 t hese 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 dispose d of .

. . .”

As to the timing of her initial c omplaint, 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 ground s. 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 3 40.6, 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, s he 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 c onspiracy 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 Me i ghan

.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

ground s, 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

. . . a ppears

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

required to or may take judic ial 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 noti ced 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. 32 6 .)

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. [Cita tions.]

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 plaintif f’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 plainti ff 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 s hould know of facts

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

appreciable and actual harm. ( S amuels 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 shar p 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 question s of fact. ( Jordache Enterprises,

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

( Jordache )

. ) However, “ c ourts 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 di scovery rule

. . .’ should be

decided as a matter of law, by evaluating the allegations in light13

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 Su ed Them

Meighan filed her demurrer to the 1A Howard Complaint

on July 17, 2017

. T he pleadings and documents of which the trial

court properly took judicial notice 5 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, b y this date

, Meighan had notice of Dr. Howard’s legal malpractice allega tions

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 part ies (without objection by either side) . It specifically did

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

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

error in our independent analysis , rendering the point moot

. W e

consider the judicially noticed documents only for their existence

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

, supra

, 218 Cal.App.4t h 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 “ ‘ “ ‘ “ ha s notice or information of

circumstances to put a reasonable person on i nquiry

. . . . ” ’ ”

[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 f

acts to find her

. ’ ” ( Bergstein v. Stroock &

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

( Bergstein ) , quoting Jolly

, supra

, 44 Cal.3d at p p. 1110

– 1111.)

The wrongful acts or omissions underlying Meighan’s

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

requisite conflicts waiver s from Dr. and Mrs. Howard while

communicating with Meighan about creating the gift trusts and

modifying the Howard Family Trust for her benefit ;

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

manner that would protect Meighan in case he later challenged

the gift trusts and family trust modification s ; and (3) Weinstock

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

trusts and family trust modific ations beyond obtaining his

signature on the relevant trust instruments

.15 The re 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 prepar e Meighan’s July 17,

201 7, 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, Meigha n alleges that, i n 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, w hat 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 [Meig han’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 allege s 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 “ev er 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

M eighan 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 Comp laint contains allegations that Dr. Howard did not

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

alleged that (a) the only e state 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 i r revocable 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 t ransfers to

Meighan “with out his knowledge or consent”; and ( e ) he had no

intent to execute the grant deeds that fund ed 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 supplementa l documentation

existed

. Meighan asserts she “knew” Dr. Howard’s allegation s

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, a llowed 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, “ e xtensive 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 conflict s 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 fac tual

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 reaso nable person on inquiry of the conduct she

alleges as wrongful in her FAC. W e underscore that we reach

this conclusion without accepting that Dr. Howard’s allegations

were true; only that the y 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 ar gues that the trial court erred in concluding

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

claims against Weinstock because such conclusion res ted on three

“ heavily disputed material issues of f act .” 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 releva nce 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 pur portedly 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

mea nt 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 r egard 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 wa s 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 [Wei nstock] 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 , n or 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 opportuni ty 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 t he

opportunity to investigate th e facts and determine whether to22

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 th eory 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 nee d 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 complaint s alleg ed 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. F o r 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 complain s 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 Mei ghan’s “disputed facts” is

unnecessary to conclude that

, with notice of Dr. Howa rd’s

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

of reasonable diligence

, should have discovered the facts

constituting the wrongful act s or omission s underlyi ng 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,

t hat 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 i t 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 T he 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

Comp laint . They were not depe ndent 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

malpract ice 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 fo rm 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 [We instock]. ” 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 ].) T he 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 h e 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 plain tiff 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 charg e 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 p laintiff, 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. 131 3 .) This prompted a criminal

investigation du ring 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 C ourt

of A ppe al 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 there after , they were

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

mixed with allegations of other wrongful acts used to sup port

other theories of recover y

— 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 Du ty 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 attorney

client relationship is under no duty to investigate [the] attorneys ’

actions unless [the client] has actual noti ce 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 attor neys. 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 in28

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 w ith a limited partnership int e rest

. 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 secre tly 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] c lient

damaged in the context of an attorney

- clien t 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 entit lement,

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

second lawyer in every case for another opinion. ” ( Ibid .) In29

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 , he r co

- defendant, to represent her when Dr.

Howard sued them. Instead, she hired Levinson. Thus, she w as

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

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

represented by Levinson, s ubjec ting Meighan to the duty to

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

would not burden her with consult ing a new lawyer regarding

Weinstock’s actions

— she already had one . To treat her as a n

“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

conclu sion 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” a s justifying his reliance on the

accounting firm. That justifiable reliance continued until the

business hir ed a new accountant to replace the defendant

accounting firm. ( Id . at pp. 842 , 849 .) The court found30

substantial evidence supported the conclusion that only the new

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

work , and not th e presi dent’s knowledge of accounting

discrepancies, were enough to trigger accrual

. ( Id. at p. 849.)

T he 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 compellin g reversal in this case.

Even setting these issues aside, the deference the Electronic

Equipment president received as a lay person 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 C al.App.3d 693, the

plaintiff was a limited partner in a partnership. The general

partner had specifically told the plaintiff that the par tnership

was properly structured. Later, the plaintiff obtained

independent counsel who advised that th e 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 entitle d 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 had31

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

doctor s 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 doctor s

. ( Ibid .) The trial court

entered summary judgment for the doctor s 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’ af fect 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

. Th at Levinson was representing Meighan at

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

Meighan cites in her briefing reflect that independent32

representation is material. Even thou gh 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

“actu al 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 paren ts “ understood their estate plans ” and

“ consented to their estate plans as prepared by .

. . Weinstock.”

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

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

allege that Weinstock a ssured 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 c ontending that Dr. and Mrs. Howard33

“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 allegation s that

Dr. Howard did consent to and understand his estate pl an

.

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 dis inheriting

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

. . wishes”

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

Howard th e instruments contemplated to effect these objectives

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

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

pleadings reflect that assurances of consent and understanding

are not incompatibl e 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 fai ling 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 la ter time.” Indeed, the FAC

reflect s 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 beca use 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.

. . . Ins tead

, 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 couns el.” 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 ignore s 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

att ack

. 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 n ot have com m enced litigation against Meighan

. . . or

such litigation would have been quickly and easily disposed of

instead of contested litigation and a lengthy trial. ” T hus, t he

$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 leg al theories

are irrelevant.

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

of Meighan’s claimed damages w as incurred more than year

before Meighan sued Weinstock on September 9, 2019

.

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

that “ e xtensive discovery and heavily contested law and motion”

practice occurred prior to trial, which commenced August 20,

2018

, and culminat ed in a jury verdict on Sep tember 28, 2018

.

It would be unreasonable to read Meighan’s complaint as36

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 “exten sive 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

M eighan cites Fox

, su

pr a

, 35 Cal. 4 th at p age 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 de nying 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 o w n 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 t hat 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 possibil ity 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.

[Citation s ].” ( Rakestraw

, supra

, 81 Cal.App.4th at p p. 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 e state plan update.”

S he 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

o ffers 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 est ablish that she did not

“command or control all communications between Dr. Howard

and [Weinstock],” showing that “she did no t 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 comm unications 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.