Filed 4/18/16 Bastien v. Capielo CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



ROCHELLE T. BASTIEN,                                                 D067647

         Plaintiff and Appellant,

         v.                                                          (Super. Ct. No. 37-2014-00017176-
                                                                     CU-PN-CTL)
GEORG CAPIELO et al.,

         Defendants and Respondents.


         APPEAL from a judgment of the Superior Court of San Diego County, Joan M.

Lewis, Judge. Affirmed in part and reversed in part.



         Law Office of Stan Stern and Stan Stern for Plaintiff and Appellant.

         Klinedinst PC, Gregor A. Hensrude and David M. Majchrzak for Defendants and

Respondents.

         Rochelle T. Bastien appeals following judgment on the pleadings in her legal

malpractice lawsuit against Georg M. Capielo and Jack B. Winters who represented her

in two proceedings, namely: (1) a request to set aside a stipulated dissolution of marriage
judgment and to divide omitted assets in the dissolution of Bastien's marriage to Dennis

Dominguez (Bastien v. Dominguez (Super. Ct. San Diego County, 2014, No. ED55622)

(the dissolution action); and (2) a malpractice lawsuit against Bastien's certified financial

planner, Theodore Roman, that was resolved through binding arbitration (Bastien v.

Roman (Super. Ct. San Diego County, 2011, No. 37-2007-00070967-CU-BC-CTL) (the

Roman action).

       With respect to the portion of the legal malpractice claim arising from the

dissolution action, Bastien contends that the trial court erred in granting judgment on the

pleadings, as the motion did not address the part of her legal malpractice claim arising

from the request to divide omitted assets. In the alternative, she argues that she should at

least have been granted leave to amend to clarify that her legal malpractice claim

encompasses a claim arising from the request to divide omitted assets. Regarding the

portion of the legal malpractice case arising from the Roman action, Bastien contends that

the trial court erred in concluding that the statute of limitations barred that claim.

       We conclude that Bastien's argument has merit with respect to the portion of her

legal malpractice claim arising from the request to divide omitted assets in the dissolution

action. The motion for judgment on the pleadings should have been granted with leave to

amend to allow Bastien to allege legal malpractice claims arising from the request to

divide omitted assets in the dissolution action. We accordingly reverse and remand for

further proceedings.




                                               2
                                              I

                  FACTUAL AND PROCEDURAL BACKGROUND

       To understand Bastien's allegations in the current legal malpractice lawsuit, it is

necessary to review the previous legal proceedings in which Bastien has been involved,

two of which gave rise to opinions in this court: Bastien v. Kershek (Apr. 17, 2012,

D058424) (nonpub. opn.) (Kershek); and In re Marriage of Bastien and Dominquez

(Sept. 18, 2013, D061209) (nonpub. opn.) (the 2013 Opinion). All of Bastien's previous

litigation arose from Bastien's dissatisfaction with the marital settlement agreement

(MSA) that Bastien and Dominguez entered into and which was incorporated into the

judgment of dissolution in August 2002.

A.     The Lawsuit Against Mediator Denny Kershek

       As we explained in previous opinions, Bastien became dissatisfied with the MSA

at least by 2005, when she wrote a series of letters to the attorney and family friend who

mediated the MSA, Denny Kershek. Bastien accused Kershek of being biased against

her and colluding with Dominguez to hide assets.

       In 2009, Bastien filed a lawsuit against Kershek, alleging fraud and other causes of

action, based on the claim that Kershek had a preexisting attorney-client relationship with

Dominguez, and instead of acting as a neutral mediator, Kershek colluded with

Dominguez to prevent Bastien from receiving a full and fair division of the marital estate.

Bastien argued that although she first suspected the collusion between Kershek and

Dominguez in 2005, her 2009 lawsuit was not barred by the statute of limitations because



                                             3
she had recently discovered a cancelled check purportedly showing Kershek and

Dominguez had a preexisting attorney-client relationship.

       The trial court dismissed the lawsuit based on the statute of limitations, and in

Kershek, supra, D058424, we affirmed the judgment. We explained that Bastien

discovered her cause of action for fraud against Kershek in 2005, not in 2009, because

that is when she began accusing Kershek of colluding with Dominguez.

B.     The Roman Action

       Meanwhile, in 2007, Bastien filed the Roman action, alleging fraud and breach of

fiduciary duty against certified financial planner Roman, who had advised her and

Dominguez during their marriage.1 According to the parties, the Roman action was

ordered to binding arbitration.

       Bastien alleges that in 2009 she hired Capielo to represent her in the Roman

action. According to Bastien, Capielo became associated with Winters's law firm

sometime in 2011, so that both Capielo and Winters allegedly represented her after that

date. In August 2011, the arbitrator issued a decision explaining that Roman "is not

liable to Dr. Bastien on her complaint for damages on any theory." Dismissal with

prejudice of the Roman action was entered in the trial court on November 16, 2011.


1      The appellate record does not contain the complaint in the Roman action, but it is
described in the 2013 Opinion as a complaint alleging fraud and breach of fiduciary duty.
In her appellate brief, Bastien represents that the operative first amended complaint
alleged (1) negligence and malpractice; (2) breach of contract; (3) fraud; and
(4) accounting and breach of fiduciary duty. She states that the gravamen of the
complaint was that "Roman had fraudulently failed to disclose financial information in
connection with the settlement of Dr. Bastien's divorce from Dr. Dominguez, which
resulted in assets being omitted from the divorce settlement."
                                             4
C.     The Dissolution Proceeding

       Although the record before us does not contain extensive information about all of

the proceedings that have occurred in the dissolution action since judgment was entered

on the MSA in 2002, the 2013 Opinion contains some pertinent information on that

subject.

       First, "[i]n January 2006 [Bastien] filed a motion to divide the Putnam retirement

account, which she asserted was a missing asset. [Dominguez] contended the Putnam

account was considered in the MSA and fell under a TD Waterhouse IRA."

       Second, "[i]n July 2007 [Bastien] sought additional funds for their daughter's

college tuition. She filed a motion in family court to force [Dominguez] to pay a $10,000

loan their daughter had incurred. [Bastien's] request . . . was denied by the court, the

court finding it was not clear from the MSA terms that [Dominguez] was liable for the

$10,000 loan."

       Third, "[i]n February 2008 [Bastien] sought the appointment of a special master to

determine if there were missing assets. This request was denied. A pension was valued

at $350,000 and it turned out its true value was $35,000, not $350,000. During the

hearing [Bastien] admitted the correct number was $35,000. At the end of the hearing,

the court stated [Bastien's] remedy was not the appointment of a special master but

instead might be moving to set aside the judgment on the basis of fraud."

       Fourth, "[i]n May 2008 [Bastien] filed a motion to set aside the judgment. She

alleged fraud was committed by [Dominguez] and Roman. She alleged there were

omitted assets including accounts at Putnam, and Community First National Bank, life

                                              5
insurance, pension and profit sharing plans and the value of [Dominguez's] business. The

court denied [Bastien's] motion."

       In December 2010, Bastien filed a motion (1) to set aside the judgment based on

fraud; and (2) to divide omitted assets, consisting of $15,000 that had allegedly been

moved by Dominguez to a different bank account and thus was not included in the MSA

(the December 2010 motion). According to Bastien, Capielo and Winters represented her

in litigating the December 2010 motion, and continued to represent her in the dissolution

action until July 2013.

       The details of the December 2010 motion are explained in our 2013 Opinion. "On

December 30, 2010 . . . [Bastien] filed . . . an order to show cause (OSC) to set aside the

August 2002 Judgment. This set aside request was again based upon alleged fraud.

[Bastien] alleged that in 2002 attorney Kershek did not disclose he had previously

represented [Dominguez]. [¶] [Bastien] alleged, as she did in her action against Kershek,

that on December 31, 2009, . . . she found a check dated April 3, 2000, . . . written by

[Dominguez] to Kershek for $180 for 'legal fees.' " Describing the portion of the

December 2010 motion that sought to divide omitted assets, the 2013 Opinion states,

"[Bastien] further alleged she did not receive one-half of the community estate because

[Dominguez's] medical practice was undervalued, he had opened a checking account with

$15,000 from his medical practice in July 2002, and in September 2002, after the MSA

was signed, he issued a check back to his corporate account."

       As we explained in the 2013 Opinion, the family court granted Dominguez's

motion to dismiss Bastien's December 2010 motion and awarded Dominguez $10,000 in

                                             6
fees and costs. The portion of the December 2010 motion seeking to set aside the

judgment based on fraud was dismissed because it was not timely in that Bastien believed

more than one year prior to filing the December 2010 motion that Kershek was in

collusion with Dominguez and not acting as neutral mediator.

       The family court's basis for dismissing the portion of the December 2010 motion

that sought to divide the $15,000 in omitted assets is not discussed in the 2013 Opinion.

This is apparently because, as Bastien explains, she did not appeal from that portion of

the family court's ruling. However, as Bastien describes that ruling in her briefing of this

appeal, the family court denied the "request to divide the omitted bank account for failure

to provide sufficient information."

       In the 2013 Opinion, we affirmed the family court's dismissal of Bastien's

December 2010 motion, explaining that the motion to set aside the judgment based on

fraud was not timely, as Bastien suspected wrongdoing by Kershek no later than 2005.

D.     The Instant Malpractice Lawsuit Against Capielo and Winters

       On May 29, 2014, representing herself in propria persona, Bastien filed the

complaint in this action against Capielo and Winters. Bastien was self-represented when

filing the complaint, and her allegations are not focused or easy to understand. The

complaint purports to allege a single cause of action for "Negligence, Breach of Fiduciary

Duty and Legal Malpractice." The complaint appears to focus on Capielo and Winters's

representation of Bastien in both the Roman action and the dissolution action, and sets

forth a long list of things that Bastien contends should have been done differently during



                                             7
those proceedings.2 As each item of purported malpractice is not always clearly

explained, it is sometimes difficult to tell whether a specific item relates to the litigation

of the Roman action or the dissolution action.

       Capielo and Winters answered the complaint and then brought a motion for

judgment on the pleadings. They argued (1) the malpractice claims arising out of their

litigation of the Roman action were barred by the one-year statute of limitations (Code

Civ. Proc., § 340.6, subd. (a)) that applies after the discovery of legal malpractice; and

(2) they could not have caused Bastien any harm in litigating the December 2010 motion

in the dissolution action because the attempt to set aside the judgment based on fraud

failed, as it was time barred due to Bastien's discovery of Kershek's alleged wrongdoing

in 2005, not based on any failure in Capielo and Winters's representation of Bastien.

       Bastien, still representing herself in propria persona, filed an opposition to the

motion for judgment on the pleadings. Although the opposition was not clearly drafted,

Bastien's main focus was to point out that her legal malpractice claims arising out of

Capielo and Winters's litigation of the December 2010 motion were also based on the

portion of that motion that sought to divide omitted assets. Bastien argued that the

request to divide omitted assets had not been determined to be time barred due to her

discovery of Kershek's alleged wrongdoing in 2005, and thus Capielo and Winters's

argument that their litigation of the December 2010 motion could not have harmed



2       Bastien has subsequently clarified that her legal malpractice claims are not based
on Kershek, supra, D058424, although she was represented by Winters during some part
of that litigation.
                                               8
Bastien, in that it was already time barred due to circumstances beyond their control, did

not apply to the portion of that motion that sought to divide omitted assets.3

       Bastien further argued that Capielo and Winters committed malpractice in

litigating the request to divide omitted assets. She explained that "[Capielo and Winters]

never brought forward [Bastien's] dates of discovery" of the omitted assets. In support of


3       In the trial court, Bastien filed a notice of lodgment of exhibits in opposition to the
motion for judgment on the pleadings, which attached several documents, including
Capielo's attorney-client fee agreements with Bastien (Ex. 1 & Ex. 2) and a reporter's
transcript from the hearing on the December 2010 motion in the dissolution action
(Ex. 4). Bastien did not file a request for judicial notice of the documents in the trial
court or set forth any other legal basis for the trial court to consider them in the context of
a motion for judgment on the pleadings. The trial court's order ruling on the motion for
judgment on the pleadings made no mention of whether it considered the documents
attached to Bastien's notice of lodgment, although it did state that it had granted
defendants' request for judicial notice. On appeal, the clerks transcript contains the cover
page of the notice of lodgment filed by Bastien, but it does not include the attached
documents. In December 2015, after the filing of the opening brief and the respondents'
brief in this appeal, Bastien filed a motion requesting that the record be augmented to
include exhibits 1, 2, and 4 to her notice of lodgment. We deny the December 2015
motion to augment the record on two grounds. First, there is no indication that the lodged
documents were ever properly before the trial court, as they were not the subject of a
request for judicial notice and, absent such a request, Bastien did not establish that
documents outside of the pleadings could be considered in ruling on a motion for
judgment on the pleadings. (See Cloud v. Northrop Grumman Corp. (1998) 67
Cal.App.4th 995, 999 ["Presentation of extrinsic evidence is . . . not proper on a motion
for judgment on the pleadings."].) Second, the motion is not timely and it would be
unfair to Capielo and Winters to include those documents in the appellate record, as they
did not have a chance to address them in their respondents' brief.
        In December 2015, Bastien also requested that we take judicial notice of certain
documents that were not before the trial court, but that she believes are relevant to
support the arguments in her reply brief. Specifically, she requested that we take judicial
notice of (1) the pleadings filed in support of the December 2010 motion in the
dissolution action; and (2) the trial court's order ruling on that motion. We deny the
request to take judicial notice, as it encompasses documents that were not before the trial
court in ruling on the motion for judgment on the pleadings, and the request is untimely
for the same reason as the December 2015 motion to augment the record.

                                              9
this claim, she purportedly quoted the family court's ruling addressing the request to

divide omitted assets: " 'The Court will decline to address that issue [because] . . . There

[sic] is insufficient information before the court to establish that this meets the

requirements of [Family Code section 2122, subdivision (f)].' "4 (First brackets in

original, emphasis omitted.) Bastien also went on to claim that the reason Capielo and

Winters did not provide sufficient information to the family court to establish that the

request to divide omitted assets was timely was that they knew they had purportedly

committed malpractice in allowing the one-year limitations period to expire after Bastien

came to them with evidence of the missing $15,000 bank account. Specifically, Bastien

stated that she "brought records to [Capielo] well within the one year period of time that

they had been discovered and with sufficient time for him to bring these matters before

the family court for a simple division." Bastien argued, "[t]he records demonstrate that

[Bastien] had a viable case to pursue missing assets in the family court until [Capielo]

allowed the time to expire. [Capielo] should have filed for a partial set aside in the

family court before the end of 2009 . . . ."




4      The last bracketed phrase indicates that we have corrected Bastien's reference to
"2212" to read "Family Code 2122." Family Code section 2122, subdivision (f) states
that motion to set aside a judgment based on failure to comply with the financial
disclosure requirements of parties to a dissolution must be brought within one year of
discovery. Here, the trial court apparently concluded that the division of the allegedly
omitted $15,000 bank account would require the judgment to be set aside, and thus
denied the request to divide that omitted asset on the ground that Bastien had provided
insufficient information to establish her discovery of the $15,000 bank account within the
one-year limitations period.
                                               10
       Regarding the Roman action, Bastien argued that the legal malpractice claims

arising from Capielo and Winters's handling of that litigation were not time barred

because the one-year limitations period began to run only after Capielo and Winters

ceased representing her in related matters, which included the dissolution action.

       Bastien also filed a separate pleading requesting that she be granted leave to

amend to specifically allege that defendants committed legal malpractice in allowing the

statute of limitations to expire for the request to divide omitted assets.

       In the trial court, Capielo and Winters's reply to Bastien's opposition did not

expressly address the points upon which Bastien focused her opposition. The trial court

also did not focus on Bastien's arguments in its ruling granting the motion for judgment

on the pleadings. Instead, the trial court's ruling stated: "The motion is granted for the

reasons argued by Defendants. Specifically, that with respect to the . . . [dissolution]

action Defendants could not have caused [Bastien] any harm because her claims were

time-barred before she retained these Defendants. [¶] With respect to the Roman action,

the motion is granted because the claim is time-barred." The trial court did not address

Bastien's request for leave to amend, but apparently intended to grant the motion for

judgment on the pleadings with prejudice. Judgment was entered against Bastien on

November 14, 2014.

                                              II

                                       DISCUSSION

       Now represented by an attorney, Bastien develops two arguments on appeal:

(1) the Roman action was not time barred because it was part of a continuous

                                              11
representation of Bastien by Capielo and Winters in the dissolution proceedings until July

2013; and (2) the portion of the legal malpractice claims arising from Capielo and

Winters's litigation of the portion of the December 2010 motion that focused on a request

to divide omitted assets was not subject to the motion for judgment on the pleadings and,

in the alternative, to the extent those claims were not clearly set forth in the complaint,

Bastien should be granted leave to amend to allege malpractice arising out of the

litigation of the request to divide omitted assets.

A.     Standard of Review

       "A motion for judgment on the pleadings is akin to a general demurrer; it tests the

sufficiency of the complaint to state a cause of action. [Citation.] The court must assume

the truth of all factual allegations in the complaint, along with matters subject to judicial

notice. [Citation.] Appellate courts review judgments on the pleadings de novo." (Wise

v. Pacific Gas & Electric Co. (2005) 132 Cal.App.4th 725, 738.) "[A]s with a demurrer

sustained without leave to amend, a judgment on the pleadings without leave to amend

should not be granted if there is a reasonable possibility that a defect in the complaint can

be cured by amendment. . . . The burden of proving there is a reasonable possibility the

defect can be cured by amendment is on the plaintiff." (La Jolla Village Homeowners'

Assn. v. Superior Court (1989) 212 Cal.App.3d 1131, 1141, citations omitted (La Jolla

Village).) " 'Denial of leave to amend after granting a motion for judgment on the

pleadings is reviewed for abuse of discretion.' " (Ludgate Ins. Co. v. Lockheed Martin

Corp. (2000) 82 Cal.App.4th 592, 602.)



                                              12
B.     The Legal Malpractice Claims Arising Out of the Roman Action Are Time Barred

       The statute of limitations provision that applies to Bastien's legal malpractice

action against Capielo and Winters is set forth in Code of Civil Procedure section 340.6,

which states in relevant part: "(a) An 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, or four years from the date of the wrongful act or omission, whichever occurs

first. . . . [T]he period shall be tolled during the time that any of the following exist: [¶]

. . . [¶] (2) The attorney continues to represent the plaintiff regarding the specific subject

matter in which the alleged wrongful act or omission occurred."

       Here, Bastien does not dispute that she discovered or should have discovered her

legal malpractice claim arising out of the Roman action by 2011, when she lost the

arbitration in the Roman action and the case was dismissed with prejudice in the trial

court. However, Bastien contends that the statute of limitations was tolled under Code of

Civil Procedure section 340.6, subdivision (a)(2) while Capielo and Winters continued to

represent her in the dissolution proceeding until July 2013. She argues that her May 2014

complaint in this action was accordingly filed within the one-year limitations period.

       "[I]n order to fall within the tolling provision of Code of Civil Procedure section

340.6, subdivision (a)(2), the attorney must have continued 'to represent the plaintiff

regarding the specific subject matter[]' (§ 340.6, subd. (a)(2), italics added) as to which

the negligence occurred. 'Once representation on that matter ends, a client must bring

                                              13
timely suit, notwithstanding that the attorney may continue to represent the client on a

range of matters and a direct suit against the attorney may interfere with the attorney-

client relationship in all other such matters.' " (Nielsen v. Beck (2007) 157 Cal.App.4th

1041, 1052-1053.)

       "In some circumstances, an attorney may also provide continuous representation to

clients by acting in different, but related, actions." (Jocer Enterprises, Inc. v. Price

(2010) 183 Cal.App.4th 559, 571, italics added.) However, " 'the limitations period is not

tolled when an attorney's subsequent role is only tangentially related to the legal

representation the attorney provided to the plaintiff. . . . Therefore, "[t]he inquiry is not

whether an attorney-client relationship still exists but when the representation of the

specific matter terminated." . . . Tolling does not apply where there is a continuing

relationship between the attorney and client 'involving only unrelated matters.' "

(Lockton v. O'Rourke (2010) 184 Cal.App.4th 1051, 1064, citations omitted (Lockton).)

       "The test for whether the attorney has continued to represent a client on the same

specific subject matter is objective, and ordinarily the representation is on the same

specific subject matter until the agreed tasks have been completed or events inherent in

the representation have occurred." (Crouse v. Brobeck, Phleger & Harrison (1998) 67

Cal.App.4th 1509, 1528.) "A leading treatise also states that to qualify as the same

subject matter '[t]he activities allegedly constituting continuous representation must relate

to the main task or particular undertaking in which the error occurred. . . . [¶] . . . The

focus should be on the objectives of the prior retention and whether the present activities

fall within those objectives.' " (Id. at p. 1530.)

                                               14
       Here, we conclude that Capielo and Winters did not provide continuous

representation to Bastien in the Roman action and the dissolution action. The two

proceedings had different objectives, focused on different specific subject matters, and

involved different parties. In the Roman action, Bastien sought damages from Roman for

alleged negligence and misconduct in his provision of professional services. In contrast,

the relevant proceedings in the dissolution action sought to amend the judgment to obtain

a different division of the marital estate, or to divide omitted assets. Specifically, Bastien

contends in her appellate brief that Capielo and Winters continued to represent her in the

dissolution action until July 2013 by "providing ongoing advice and counsel in regard to

taking further action respecting the potential division of other assets undivided in the

divorce settlement." Although both proceedings originated as a result of Bastien's belief

that she was somehow cheated during the process of entering into the MSA, they were

focused on two separate tasks: obtaining damages from Roman, on the one hand, and

amending the judgment in the dissolution action, on the other. Therefore, there was no

continuing representation. (See Lockton, supra, 184 Cal.App.4th at pp. 1066-1068

[attorneys who represent the plaintiff in a state court lawsuit against specific parties, did

not continue to represent the plaintiff for the purposes of tolling the statute of limitations

when they continued as the plaintiff's lawyer in a federal lawsuit that alleged wrongdoing

by those same specific parties, but did not name those specific parties as defendants].)

       Accordingly, the trial court properly granted the motion for judgment on the

pleadings as to the portion of the legal malpractice claims arising out of Capielo and

Winters's litigation of the Roman action.

                                              15
C.     The Motion for Judgment on the Pleadings Did Not Encompass All of the Legal
       Malpractice Claims Arising Out of the Litigation of the December 2010 Motion in
       the Dissolution Action, and Leave to Amend Should Have Been Granted for
       Bastien to Clarify Her Claims Arising from the Litigation of the Request to Divide
       Omitted Assets

       We next consider Bastien's argument that the trial court erred in granting judgment

on the pleadings with respect to the legal malpractice claims arising from the dissolution

action, without giving her leave to amend. Specifically, Bastien points out that Capielo

and Winters's attempt to show that they could not have harmed her in litigating the

December 2010 motion did not address the portion of the legal malpractice claim arising

from Capielo and Winters's litigation of Bastien's request to divide omitted assets in the

December 2010 motion. Bastien further argues that if her complaint was not clear

enough to set forth her allegation that Capielo and Winters committed legal malpractice

in litigating her request to divide omitted assets, she should have been granted leave to

amend.

       Bastien is correct that Capielo and Winters's motion for judgment on the pleadings

did not address the lack of merit to the portion of Bastien's legal malpractice claim

alleging that they committed legal malpractice in litigating the request to divide omitted

assets. Accordingly, the trial court's ruling on the motion for judgment on the pleadings

also did not address the legal malpractice claim arising out of portion of the December

2010 motion that sought to divide omitted assets. As a result, to the extent that Bastien is

pursuing a claim based on Capielo and Winters's litigation of the request to divide

omitted assets, that specific claim has not yet been adjudged to lack merit.



                                             16
       As we have noted, because Bastien's complaint was drafted without the assistance

of an attorney, the complaint is hard to understand and does not contain any specific

allegations regarding Capielo and Winters's legal malpractice in litigating the portion of

the December 2010 motion that sought to divide omitted assets. However, Bastien

requested — both in the trial court and on appeal — that she be permitted to amend her

complaint to include clearer allegations on that issue. Bastien proposes to allege (1) that

Capielo and Winters failed to submit sufficient information to the family court in

connection with the December 2010 motion to establish that the request to divide omitted

assets was timely; (2) in the event that the request to divide omitted assets was not timely,

Capielo and Winters are the fault of the untimeliness, as they delayed after Bastien

informed them of newly discovered omitted assets at a point when a request to divide

omitted assets would have been timely, but they delayed in taking action;5 and

(3) Capielo and Winters improperly decided not to include other omitted assets in the

request to divide omitted assets, focusing only on the $15,000 bank account.

       As we have explained, "a judgment on the pleadings without leave to amend

should not be granted if there is a reasonable possibility that a defect in the complaint can

be cured by amendment," and the plaintiff has the "burden of proving there is a

reasonable possibility the defect can be cured by amendment." (La Jolla Village, supra,

212 Cal.App.3d at p. 1141.) Here, as the defect in the pleadings that formed the basis for


5      We note that if Winters did not join the representation until 2011, some of
Bastien's theories of liability may not be supported against Winters due to the timing of
events.

                                             17
the motion for judgment on the pleadings concerned the litigation of the portion of the

December 2010 motion that sought to set aside the judgment based on fraud, not on the

portion that requested to divide omitted assets, Bastien has shown that she can overcome

the defect in her pleadings identified by Capielo and Winters if she is granted leave to

amend her complaint to focus on the legal malpractice arising from the litigation of the

request to divide omitted assets.6

       Accordingly, we conclude that instead of granting the motion for judgment on the

pleadings without leave to amend, the trial court should have given Bastien leave to

amend the complaint to focus on claims of legal malpractice arising from Capielo and

Winters's efforts in attempting to obtain a division of omitted assets in the dissolution

action. We remand to the trial court to permit Bastien to file an amended complaint that

is limited to those allegations.7




6       Capielo and Winters argue that Bastien could not have been injured by their
litigation of the portion of December 2010 motion seeking to divide omitted assets
because purportedly there is no limitations period for a motion to divide omitted assets
under Family Code section 2556. However, this argument does not prove that Bastien's
proposed amendments to her complaint lack merit. As Capielo and Winters observe, this
argument applies only to the extent that a division of assets "would not require the MSA
to be set aside." The MSA is not in the appellate record, and we have insufficient
information to determine whether the division of a specific omitted asset would require
the MSA to be set aside. Accordingly, Capielo and Winters have not established that it
would be futile for Bastien to file an amended complaint to allege that they committed
legal malpractice in litigating the request to divide omitted assets.

7     We express no opinion on the potential merit of Bastien's proposed amended
complaint or the merits of any legal challenge that Capielo and Winters may bring to that
complaint.
                                             18
                                     DISPOSITION

      The judgment is affirmed in part and reversed in part, and is remanded for further

proceedings consistent with our opinion. The parties are to bear their own costs on

appeal.



                                                                                IRION, J.

WE CONCUR:



McDONALD, Acting P. J.



AARON, J.




                                           19
