1 MICHAEL A. CONGER, ESQUIRE (State Bar No. …

1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MICHAEL A. CONGER, ESQUIRE (State Bar No. 147882) LAW OFFICE OF MICHAEL A. CONGER 16236 San Dieguito Road, Suite 4-14 :Mailing: Box 9374 Rancho Santa Fe, California 92067 Telephone: (858) 759-0200 Facsimile: (858) 759-1906 Attorneys for Plaintiffs Christopher Ellis, Bradley D. Elow, Robert Finch and Howard LaBore individually, and on behalf of all others similarly situated SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO CHRlSTOPHER ELLIS, BRADLEY D. ELOW, ) CASE NO: 37-2010-00086284 ROBERT FINCH and HOWARD LaBORE, ) CU-PN-CTL individually, and on behalf of all others similarly ) situated, . ) ) Plaintiffs, ) PLAINTIFFS' MEMORANDUM OF ) POINTS AND AUTHORlTIES IN v. ) OPPOSITION TO DEMURRER OF ) GREGORY GLENN PETERSEN JACKSON, DeMARCO, TIDUS & ) PECKENPAUGH, A LAW CORPORATION, ) GREGORY GLENN PETERSEN, an individual, ) CHRlSTOPHERD.

2 NISSEN, an individual, ) BRADLEY MATHEWS, an individual, ) STEPHENEY R. WINDSOR, an individual, ) MICHAEL ANTHONY JENKINS, an individual, ) Date: July 23,2010 and DOES 1-50, ) Time: 10:00 ) Judge: Hon. Ronald S. Prager Defendants. ) Dept: C-71 ) Complaint Filed: February 24, 2010 Trial: February 10,2011 .~---------------) Plaintiffs' Memorandum of Points and Authorities in Opposition to DemurrerofGregory Glenn Petersen 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS I. INTRODUCTION .. 1 II. STATEMENT OF MATERIAL FACTS .. 1 III. A GENERAL DEMURRER TESTS THE LEGAL SUFFICIENCY OF THE FACTUAL ALLEGATIONS IN A COMPLAINT TO STATE A CAUSE OF ACTION .. 4 IV. THE PLAINTIFFS HAVE ALLEGED THE FOUR ELEMENTS OF A CAUSE OF ACTION FOR PROFESSIONAL NEGLIGENCE: (1) DUTY; (2) BREACH; (3) PROXIMATE CAUSE; AND (4) ACTUAL LOSS OR DAMAGE.

3 4 V. THE COMPLAINT IS NOT TIME-BARRED ON ITS FACE (OR FROM . MATTERS OF WHICH THE COURT MAY PROPERLY TAKE JUDICIAL NOTICE) .. 5 A. The One-Year Statute ofLimitations Commences When the Client Discovers or Should Discover the Facts Essential to the Malpractice Claim and Suffers Appreciable and Actual Harm from the Malpractice.. 5 B. The Date the Plaintiffs Discovered Defendant Peterson's Malpractice Is Not Ascertainable from the Face ofthe Complaint or Judicially . Noticeable Facts .. 7 . C. The Plaintiffs Have Alleged They Suffered Appreciable Harm Less Than a Year Before the Action Was Filed, , When the City Capped Retiree Health Benefits in Reliance Upon SDPOA v. SDCERS .. '.. 7 D. There Are No Alleged or Judicially-Noticeable Facts from Which the Court May Ascertain the Date of Commencement ofthe Statute of Limitations.

4 8 E. Ifthe Date of Commencement ofthe State ofLimitations Cannot Be Ascertained, the Existence ofNon-Existence of Tolling for Continuous Representation Is Irrelevant .. 9 F. Because the Complaint Was Filed Within a Year ofthe Accrual ofthe Plaintiffs' Cause ofAction, It Is Not Time-Barred; and the Affirmative Defense ofthe Statute ofLimitations Must Be Raised by Answer .. 12 VI. BECAUSE THE ATTORNEY-CLIENT PRIVILEGED HAS BEEN WAIVED BY THE FILING OF A LEGAL MALPRACTICE ACTION, PETERSEN CAN DEFEND HIMSELF .. 12 A. Under Evidence Code Section 958, There Is No Attorney-Client Privilege as to Communications Relevant to an Issue ofLegal Malpractice .. 12 B. Petersen May Disclose His Communications With All Members of the Class; and Any ofHis Existing Clients Who Wish To Preserve the Privilege May Opt Out.

5 13 Plaintiffs' Memorandum of Points and Authorities in Opposition to Demurrer ofGregory Glenn Petersen 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Petersen Has Not Shown VJny (1) Privileged Communications With Opt-Outs (If Any) Would Be Relevant, Much Less Necessary, To His Defense ofthe Claims of Class Members, (2) the "Extraordinary Step of Dismissing a Plaintiff s Claim" is Warranted, (3) the Court Should Skip the Required Consideration of Competing Interests, or (4) This Qualifies as One of the "Rarest of Cases" in VJnich the "Drastic Action" of Dismissal Should Occur .. 13 D. The Cases on Which Petersen Relies Are Distinguishable .. 14 VII. CONCLUSION .. 15 11 Plaintiffs' Memorandum of Points and Authorities in Opposition to Demurrer of Gregory Glenn Petersen 1 2 3 4 5 6 7 8 9 10 11 12 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Adams v.

6 Paul (1995) 11 583 .. 8 Ambriz v. Kelegian (2007) 146 1519 .. 0 5 Aubry v. Tri-City Hospital Dist. (1992) 2 CaL4th 962 .. 4 Beal Bank, SSB v. Arter & Hadden, LLP (2007) 42 503 .. 10-11 Budd v. Nixen (1971) 6 195 .. 5 Coscia McKenna &Cuneo (2001) 25 CalAth 1194 .. : .. 5, 7 General Dynamics Corp. v. Superior Court (1994) 7 1164 .. 14 Howe v. Bank ofAmerica NA. (2009) 179 CaLAppAth 1443 .. 5 Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 739 .. 8-9 lvfcDermott, Will & Emery v. Superior Court (2000) 83 378 .. 12, 15 Miller v. Bechtel Corp. (1983) 33 868 .. 9 Pacific Tel. & Tel. Co. v. Fink (1956) 141 332 .. 0 12 Samuels v. Mix (1999) 22, 1 .. 0 6, 12 San Diego Police Officers Association v.

7 San Diego City Employees Retirement System (2009) 568 Fo2d 725 .. 1-3,7, 13 0 , iii Plaintiffs' Memorandum ofPoints and Authorities in Opposition to Demurrer ofGregory Glenn Petersen 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Solin v. 0 'A1elveny & Meyers, LLP (2001) 89 451 .. 15 Windham at Carmel A10untain Ranch Assn. v. Superior Court (2003) 109 1162 .. Wright v. Williams (1975) 47 802 .. 5 Statutes Code ofCivil Procedure ..6, 8 (a) .. 7-8, 12 (a)(1) .. ~ .. : .. 7-8 (a)(2) .. 9-10, 12 (a)(3) .. 12 Evidence Code 95S ..,.. 1,12,14 Government Code 3500 .." .. 1 United states Code 42 1983 .. '.. 2 iv Plaintiffs' Memorandum ofPoints and Authorities in Opposition to Demurrer ofGregory Glenn Petersen 5 10 15 20 25 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 26 27 28 1.

8 INTRODUCTION This is a class action attorney malpractice lawsuit brought by San Diego police officers Christopher Ellis, Bradley D. Elow, Robert Finch, and Howard LaBore, employees of the City of San Diego ("City"). (Class Action Complaint for Attorney Malpractice ("Complaint"), ~. 1.) Defendant Gregory Glenn Petersen ("Petersen"), one ofthe primary attorneys who represented the plaintiffs in previous litigation, has filed a demurrer to the complaint raising two arguments: (1) the action is time-barred under the statute of limitations and (2) he is unable to defend himself because ofthe attorney-client privilege. However, as will be shown below, Petersen's demurrer should be overruled. The complaint is not time-barred on its face (or from matters of which the court may properly take judicial notice ).

9 Furth~r, because the attorney-client privileged has been waived by the filing of a legal malpractice action (Evid. Code, 958), Petersen can defend himself. II. STATEMENT OF MATERIAL FACTS! In 2005 the plaintiffs, and approximately 1,800 oftheir fellow police officers, retained the defendant attorneys, including Petersen, to contest the City ofSan Diego's imposition of contract terms on the San Diego Police Officers Association ("SDPOA"), the recognized bargaining agent for San Diego police officers under the Meyers-Milias-Brown Act (Gov. Code, 3500, et seq.). (Complaint, ~ 14.) The defendants agreed to represent the plaintiffs and approximately 1,800 of their fellow police officers on precisely the same terms and conditions. (Complaint, ~ 16.) The defendant attorneys filed two lawsuits ("the underlying litigation"f on behalf of the The following statement of material facts states the allegations ofthe complaint, filed February 24, 2010.)

10 In the accompanying Notice of Lodgment in Support of Plaintiffs' Opposition to Demurrers [etc.] ("NOL"), Exhibit 1, the plaintiffs have lodged Plaintiff Christopher Ellis' Response to Special Interrogatories Propounded by Defendant Jackson, DeMarco, Tidus & Peckenpaugh, which particularly in response to interrogatories 7,9-10,27, and 35 contain more detailed statement of facts. Should the court deem any amendment necessary, plaintiffs request leave to amend to state these additional facts. 2 The first was SDPOA, on behalfofitselfand on behalfofall ofits members v. Aguirre, et aI., United states District Court for the Southern District of California, Case No. 05 cv-1581. Because the United states Court of Appeals for the Ninth Circuit titled this case San 1 . Plaintiffs' Memorandum of Points and Authorities in Opposition to Demurrer of Gregory Glenn Petersen 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28.