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Wong v. Yoss6/30/2004
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
INTRODUCTION
Plaintiffs Stanton Alan Wong and Karen Wong appeal from a judgment in favor of defendants Jan Yoss, John Younesi and Younesi & Yoss, LLP. The judgment followed the sustaining of defendants' demurrer to plaintiffs' first amended complaint without leave to amend. Plaintiffs contend the trial court erred in sustaining the demurrer or, at the very minimum, abused its discretion in denying them leave to amend. We agree that the trial court erred in sustaining the demurrer and reverse the judgment.
FACTS
Allegations of the First Amended Complaint
On September 30, 1999, plaintiffs retained defendants "to provide any and all necessary legal representation of them in connection with Pegorare Trust v. Wong" (Super. Ct. L.A. County, SC045922). "This legal representation of plaintiffs by said defendants . . . continued uninterrupted through November, 2001."
Defendants had a duty to represent plaintiffs' interests competently. Defendants breached this duty by failing to exercise reasonable care, skill and diligence in their representation of plaintiffs. Specifically, they failed to advise plaintiffs in a timely fashion of a legal malpractice claim against plaintiffs' original attorney, Peter T. Steinberg of Steinberg, Nutter & Brant in the Pegorare Trust action; this attorney had caused plaintiffs serious and substantial financial loss. Defendants failed to take action in a timely fashion to protect plaintiffs' financial interests. They failed to make a recommendation to plaintiffs in a timely fashion that legal action be taken in order to maintain and protect important legal rights arising out of the Pegorare Trust action.
The legal malpractice claim against the original attorney was meritorious. Had an action been brought thereon, plaintiffs would have remedied their serious and substantial financial loss. Due to defendants' negligence, however, plaintiffs' legal malpractice action against the original attorney became time-barred and plaintiffs lost their opportunity to remedy their financial loss. Further, plaintiffs incurred additional expenditures including attorney's fees.
Facts Contained Within Defendants' Request for Judicial Notice
Judgment in the Pegorare Trust action was entered on August 20, 1999 in favor of Thomase J. Scalese, trustee of the Pegorare Trust, and against plaintiffs, the Wongs, in the amount of $127,050.00, plus prejudgment interest in the amount $50,080.83 and attorney's fees and costs. In the action, plaintiffs were represented by Attorney Steinberg.
On October 15 and 21, 1999, defendant Yoss substituted into the action as plaintiffs' attorney in place of Attorney Steinberg. All defendants represented plaintiffs in the appeal of the judgment in the Pegorare Trust action. An opinion in the matter was filed on October 19, 2000, affirming the trial court judgment. (Scalese v. Wong (2000) 84 Cal.App.4th 863.) The Supreme Court denied review in the case on January 17, 2001.
PROCEDURAL BACKGROUND
Plaintiffs filed their complaint for legal malpractice against defendants on February 11, 2002. Defendants demurred on the ground the action was barred by the statute of limitations. In conjunction with their demurrer, defendants requested that the trial court take judicial notice of
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