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Ken Shifren v. Randy M. Spiro et al

May 24, 2012

KEN SHIFREN, PLAINTIFF AND APPELLANT,
v.
RANDY M. SPIRO ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from a judgment of the Superior Court of Los Angeles County, John Kronstadt, Judge. (Los Angeles County Super. Ct. No. BC427789)

The opinion of the court was delivered by: Aldrich, J.

CERTIFIED FOR PUBLICATION

Reversed.

Ken Shifren filed a legal malpractice action in 2009 against defendants Randy M. Spiro and the firm Altshuler & Spiro (Attorneys) after a court determined in Shifren's marriage dissolution action that the trust documents Attorneys prepared failed to ensure that Shifren's mother's gift of real property would be characterized as his separate property. In the marriage dissolution action, the court concluded the trust documents did not terminate and revoke an agreement between Shifren and his wife stating that all property acquired during the marriage would be characterized as community property (transmutation agreement).

Attorneys obtained summary judgment on Shifren's legal malpractice action, contending the complaint was time barred by the applicable statute of limitations. (Code Civ. Proc., § 340.6, subd. (a).)*fn1 Attorneys argued Shifren suffered actual injury for purposes of the accrual of the statute of limitations as early as 2001 when the trust documents were prepared, but at the latest in 2007 when Shifren incurred attorney fees in the marriage dissolution action to resolve the dispute over the validity of the trust documents.

In this case, we conclude the allegations of attorney error arising from the preparation of the trust documents required a resolution of the marriage dissolution action to establish that Attorneys breached a duty of care owed to Shifren and to establish the consequences of Attorneys' error. Thus, the facts do not indisputably show that Shifren's cause of action accrued, and the statute began to run on his claim, before a judicial determination in the marriage dissolution action. Accordingly, we reverse and remand for further proceedings.

UNDISPUTED MATERIAL FACTS

1. Shifren Family Trust Documents

a. Transmutation Agreement

In 1988, Shifren and his wife established the Shifren Family Trust (1988 trust) and executed the transmutation agreement. The transmutation agreement stated: "We, KENNETH SHIFREN and BARBARA K. SHIFREN, husband and wife, of Los Angeles County, California, hereby confirm our intention that each and all items of property, or interests therein, of whatever kind or character, whether now owned or later acquired, and however title thereto may be held by either of us, either on the date hereof or at any time in the future, including any property which either of us may in the future acquire by inheritance or gift, is and constitutes community property held as such by both of us . . . ."

b. 2001 Amendment and Restatement of the Shifren Family Trust

In 2001, Shifren and his wife hired Attorneys to make further amendments to their family trust before Shifren's mother transferred property to him. Shifren's mother held a 60 percent interest in commercial property located at 2940 E. Olympic Boulevard (Olympic property), and Shifren and his wife held the remaining interest. Shifren and his wife wanted to ensure that the amended estate plan included a provision that Shifren's mother's gift of her interest in the Olympic property would remain his separate property.

Attorneys prepared the "Amendment to and Restatement of the Shifren Family Trust, Under Trust Agreement dated November 7, 1988" (2001 trust). The 2001 trust stated the 1988 trust, and subsequent amendments, were amended by deleting "all provisions thereof and by restating said Trust as follows." The fifth provision of the 2001 trust was titled "Retention of Character of Property," and stated: "All property now or hereafter conveyed or transferred to the Trustee to be held by the Trustee pursuant to this Trust Agreement which was at the date of such conveyance or transfer community property or quasi-community property of the Trustors, or the separate property of either Trustor shall remain the community property or quasi-community property of the Trustors, or the separate property of either Trustor as it was before such conveyance or transfer. Notwithstanding the foregoing, any property held by the Trustors as joint tenants which is conveyed to the Trustee shall be deemed to be the community property of the Trustors."

In 2002, Shifren's mother transferred her interest in the Olympic property to Shifren "a married man as his ...


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