The judge's tenative was to sustain the bank demurrer without leave to amend, meaning, if I understand that correctly, that, if accepted, the case (stuck under the wrong body of law), would have essentially been decided, clearing the way for an appeal and/or proceeding with malpractice against attorney #1 who screwed up the case in the first place?
A: Okay, just to clarify -- a demurrer is not the same thing as a summary judgment motion.
A demurrer assumes that even if plaintiff's complaint is absolutely true in every respect, defendant must win, because (e.g., the law doesn't permit any recovery)....
Whereas, a summary judgment motion assumes that the nonmoving party is correct on each and every issue of material fact, and then requires that the moving party prove that the material facts are at least in dispute, such that a trier of fact (judge or jury) should be asked to consider the disputed facts and render a verdict.
In my opinion, judges who issue tentative rulings wreck the legal process, because the purpose of demurrers and summary judgment motions is to determine the outcome of the case -- not to give a signal about which way the case is going and then let the case proceed anyway. I would prefer that the court rule, and then appeal, rather than waste the client's time and money in a pyrric effort to convince the judge that he/she made an error in the tentative decision.
If a judge tells me that he/she tentatively intends to sustain a demurrer without leave to amend, that's the equivalent of "Don't confuse me with the facts, I've already made up my mind." In which case, as far as I'm concerned, I need to take the case to an appellate court, or tell my client to surrender, because the court has predetermined that the client will lose.
So, the answer to your question is "yes." You lost at the get go, and the correct move would have been to bail out or appeal. But, I cannot say that moving forward to trial is necessarily malpractice. A jury would have to decide what an objective attorney in the shoes of your attorney would have done in similar circumstances. If the answer is "move on to trial," then no malpractice -- otherwise, malpractice.
Whould there have been any legal protocol for my attorney to follow, other simply accepting the judge's tenative to sustain the motion for summary judgment without leave to amend (before my proceeding to malpractice and/or appleal)?
A: You're confusing the terms again. A demurrer is not a summary judgment motion. Regardless, I think my explanation above covers this question.
Hope this helps.