California Appellate Court Affirms Demurrer in Legal Malpractice Case


A California appellate court has affirmed a ruling sustaining a demurrer without leave to amend a first amended complaint alleging legal malpractice.  In Siegen v. Lewis., a client filed a legal malpractice action against his former attorney alleging the attorney negligently represented him in a civil action against another individual.  The client alleged that the attorney’s failure to request a case management conference, which resulted in the case being dismissed, constituted legal malpractice.

The client’s original pro se complaint was successfully demurred by the attorney because the client failed to plead sufficient facts to constitute a cause of action. However, the court granted the client leave to amend his complaint.  The client then filed his first amended complaint, which the attorney again successfully demurred, but the court did not allow the client to amend his complaint a third time.  The client then appealed.

Under California law, the plaintiff bears the burden of proving that there is a reasonable possibility that an amendment can cure the defects of a complaint. If a complaint cannot be cured, then a dismissal without leave to amend is appropriate.

The appellate court found that the client had failed to meet this burden. It reasoned that the client had failed to show that the attorney’s conduct fell below the standard of care because the client had alternative methods of remedying the attorney’s failure to schedule the conference. This included calling the court himself or seeking a writ to compel the attorney to schedule the conference. The client was therefore unable to show that an amendment would have cured the defects of his complaint, and thus the trial court had correctly dismissed the complaint without leave to amend.  
Decision: Siegen v. Lewis.doc


Contact Information