Judge: Anne Richardson, Case: 22STCV25917, Date: 2024-01-17 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 22STCV25917    Hearing Date: April 5, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

Plaintiff Jinwoo Park sues Defendants Keith K. Kim, John P. Yasuda, Herb Fox, Joseph Walsh, and State Bar of California pursuant to a November 1, 2023, Third Amended Complaint (TAC) alleging an undefined cause of action that is alleged not to be “legal malpractice” but is alleged to involve the willful destruction and losing of the People’s exhibits in a criminal prosecution defense and subsequent appeal, in breach of the professional ethical duty encompassed in the California Rules of Professional Conduct at rule 1.16(e)(1) and addressed in formal opinions by the California Bar Association and Los Angeles County Bar Association.

B. Demurrer and Motion to Strike [Defendant Fox]

On November 27, 2023, Defendant Fox filed a demurrer challenging the sufficiency of the TAC’s allegations as directed against Defendant Fox.

That same day, Defendant Fox filed a motion to strike challenging the TAC on two grounds: (1) alleging a new claim beyond the scope of the leave to amend afforded by the Court in granting leave to amend the prior Second Amended Complaint (SAC); and (2) a negligence claim, to the extent it is alleged in the TAC, even if alleged as professional negligence, fails to support allegations of and a prayer for punitive damages.

On January 17, 2024, Plaintiff Park filed an opposition to the demurrer and motion to strike.

On March 22, 2024, Defendant Fox filed separate replies to Plaintiff Park’s combined opposition.

The demurrer and motion to strike are now before the Court.

C. Motion Requesting Disclosure of Counsel’s Address by State Bar [Plaintiff Park]

On January 30, 2024, Plaintiff Park filed a motion to compel the disclosure of Defendant Keith Kim’s residential address from the State Bar, or for service on Defendant Kim by publication.

The motion attaches a proof of service purporting to show service of the motion by mail to counsel for Defendant Herb Fox, counsel for Defendant Joseph Walsh, the State Bar, and Defendant Keith Kim’s law office.

On March 22, 2024, Defendant the State Bar of California (the State Bar) filed an opposition to Plaintiff Park’s motion.

No other opposition or reply appears in the record.

Plaintiff Park’s motion for disclosure or publication order is now before the Court.

D. Motion Requesting Appointment of Attorney [Plaintiff Park]

On February 6, 2024, Plaintiff Park filed a motion requesting the appointment of an attorney to represent him based on an inability to fluently speak English.

No opposition or reply appears in the record.

Plaintiff Park’s motion for appointment of attorney is now before the Court.

II. Demurrer: SUSTAINED, without leave to amend.

A. Request for Judicial Notice

Per Defendant Herb Fox’s request in his moving papers, the court takes judicial notice of the dockets for the underlying criminal prosecution and appeal proceeding for Plaintiff Park. (Demurrer, RJN, Exs. 1-2; Evid. Code, §§ 452, subd. (d), 453, subds. (a)-(b).)

B. Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; see Code Civ. Proc., § 430.10, subd. (e).) This device can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) To sufficiently allege a cause of action, a complaint must allege all the ultimate facts—that is, the facts needed to establish each element of the cause of action pleaded. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212, superseded by statute as stated in Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.) Thus, “[t]o survive a [general] demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) In testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.) A demurrer, however, “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228, disapproved on other grounds, Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162.) The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence. (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447, superseded by statute on other grounds as stated in White v. Cridlebaugh (2009) 178 Cal.App.4th 506, 521.)

C. Court’s Determination

1. Demurrer, Entire TAC, Failure to Plead Actual Innocence Requirement

a. Relevant Law

The failure to provide competent representation in a civil or criminal case may be the basis for civil liability under a theory of professional negligence. (Redante v. Yockelson (2003) 112 Cal.App.4th 1351, 1356.)

“The elements of a cause of action for legal malpractice arising out of a criminal proceeding are (1) the attorney's duty to use a level of skill, prudence, and diligence commonly possessed and exercised by attorneys; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; (4) actual loss or damage resulting from the attorney's negligence; and (5) actual innocence of the former criminal defendant.” (Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 67.)

Consequently, in an action for legal malpractice by a criminal defendant against his or her defense attorney, the criminal defendant must prove his or her actual innocence of the criminal charges as a necessary element of the action. (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 536-537 (Wiley).) The rationale for this rule lies in several policy considerations. First, allowing a convicted criminal to pursue a legal malpractice claim without proof of innocence would permit the criminal to profit from his or her own fraud or take advantage of his or her own wrong. (Coscia v. McKenna v. Cuneo (2001) 25 Cal.4th 1194, 1200 (Coscia).) Second, convicted criminals should bear sole responsibility for their actions, and any subsequent negligence by counsel is superseded by the greater culpability of the criminal’s conduct. (Ibid.) Third, convicted criminals have an adequate remedy in the form of post-conviction relief for ineffective assistance of counsel. (Ibid.)

In addition, as a prerequisite to proving actual innocence in a malpractice action, the criminal defendant “‘must obtain postconviction relief in the form of a final disposition of the underlying criminal case—for example, by acquittal after retrial, reversal on appeal with directions to dismiss the charges, reversal followed by the People’s refusal to continue the prosecution, or a grant of habeas corpus relief.’” (Khodayari v. Mashburn (2011) 200 Cal.App.4th 1184, 1189 (Khodayari); see also Sangha v. LaBarbera (2006) 146 Cal.App.4th 79, 90 [“Postconviction exoneration is a ‘final disposition’ of the underlying case”].) This requirement applies regardless of whether the conviction resulted from guilty or nolo contendere pleas or trial. (Coscia, supra, 25 Cal.4th at p. 1205.)  

b. Parties’ Arguments

In his demurrer, Defendant Fox first argues that the TAC alleges a legal malpractice claim but fails to sufficiently allege the actual innocence requirement that must be alleged in relation to competent representation in a civil or criminal case. Second, Defendant Fox argues that the TAC alleges that the evidence was lost or destroyed in the trial court proceedings, where Fox is only alleged as appellate counsel. Third, Defendant Fox argues that the Rules of Professional Conduct do not contemplate civil causes of action based on violations of any specific rule. Fourth, Defendant Fox argues that Plaintiff Park has unclean hands. Last, Defendant Fox argues that should the actual innocence requirement not apply, the statute of limitations on this claim renders the TAC’s sole cause of action untimely. (Demurrer, pp. 4-8.)

In opposition, Plaintiff Park—in a 55 page, single spaced memorandum of points and authorities that far exceed the page limits in California Rules of Court, rule 3.1113(d)—argues among many other things that he does not state a legal malpractice claim but rather a violation of the Professional Rules of Conduct and that the digital videos and photos that were “willfully concealed” by Defendants support such a claim. (See, e.g., Opp’n, 3:12-4:3.)

In reply, Defendant Fox reiterates the points in the moving papers, notes the exceeding length of the opposition’s points and authorities, and argues that leave to amend should not be granted because Plaintiff Park made no showing that he can cure the defects raised in the pleadings. (Reply, pp. 2-6.)

c. Merits

The Court finds in favor of Defendant Fox.

It is “an elementary principle of modern pleading that the nature and character of a pleading is to be determined from its allegations, regardless of what it may be called, and that the subject matter of an action and issues involved are determined from the facts alleged rather than from the title of the pleadings or the character of the damage recovery suggested in connection with the prayer for relief.” (McDonald v. Filice (1967) 252 Cal.App.2d 613, 622; accord. Ananda Church of Self-Realization v. Massachusetts Bay Ins. Co. (2002) 95 Cal.App.4th 1273, 1281; Lovejoy v. AT&T Corp. (2001) 92 Cal.App.4th 85, 98.) To determine the nature of a cause of action, California courts look at the facts alleged, not its label. (See, e.g., Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.)

The elements of a legal malpractice action are: (1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney’s negligence. (Coscia, supra, 25 Cal.4th at p. 1199.)

Here, the TAC alleges all counsel in the underlying criminal prosecution and appellate proceedings violated rule 16(a) of the Rules of Professional Conduct by destroying or losing evidence. (TAC, ¶ 8.) Such conduct is clearly professional negligence insofar as the essence of the claim being stated against Defendant Fox is that he acted under the proper standard of care. This conclusion is supported by the TAC alleging that the cause of action at issue arises from violation of the California Rules of Professional conduct, i.e., conduct that fell below what is required of an attorney acting in conformity with the Rules. To state a legal malpractice claim in relation to a criminal prosecution defense, actual innocence and postconviction relief must be alleged. (Wiley, supra, 19 Cal.4th at pp. 536-537 [actual innocence]; Khodayari, supra, 200 Cal.App.4th at p. 1189 [postconviction relief].) Here, the TAC does neither and clearly establishes that Plaintiff Park is an incarcerated individual based on the underlying criminal prosecution. Nor does the FAC allege that Plaintiff’s sentence or conviction is likely to change in the near future.

Neither can the TAC be cured to state a claim based on the Rules of Professional Conduct. As stated by the Rules themselves: “The Rules of Professional Conduct are intended to establish the standards for lawyers for purposes of discipline. (See Ames v. State Bar (1973) 8 Cal.3d 910, 917.) Therefore, failure to comply with an obligation or prohibition imposed by a rule is a basis for invoking the disciplinary process. Because the rules are not designed to be a basis for civil liability, a violation of a rule does not itself give rise to a cause of action for enforcement of a rule or for damages caused by failure to comply with the rule. (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1097.) Nevertheless, a lawyer’s violation of a rule may be evidence of breach of a lawyer’s fiduciary or other substantive legal duty in a non-disciplinary context. (Ibid.; see also Mirabito v. Liccardo (1992) 4 Cal.App.4th 41, 44.) A violation of a rule may have other non- disciplinary consequences. (See, e.g., Fletcher v. Davis (2004) 33 Cal.4th 61, 71-72 [enforcement of attorney’s lien]; Chambers v. Kay (2002) 29 Cal.4th 142, 161 [enforcement of fee sharing agreement].)” (Rules Prof. Conduct, rule 1.0, com. [1].)

The TAC therefore states a single, undefined count, which reads as a professional negligence claim, and is premised on violations of the California Rules of Professional Conduct (see TAC, ¶ 8), where violation of one of those Rules cannot serve as a basis for a civil action against counsel (Rules Prof. Conduct, rule 1.0, com. [1]), and where the legal malpractice component of the count is defectively pled. The TAC instead alleges that the State Bar reviewed counsels’ conduct in the criminal prosecution and appellate proceedings and failed to find counsel acted below the standard of care. (TAC, ¶ 8, Attach., 4:21-28.) Such a count is fatally defective.

For both these reasons, Defendant Fox’s demurrer is SUSTAINED, without leave to amend, as to Defendant Herb Fox.

III. Motion to Strike: MOOT.

A. Legal Standard

The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (a) strike out any irrelevant, false, or improper matter inserted in any pleading; or (b) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. § 436, subds. (a), (b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

For the purposes of a motion to strike pursuant to Sections 435 to 437 of the Code of Civil Procedure, the term “pleading” generally means a demurrer, answer, complaint, or cross-complaint, (Code Civ. Proc., § 435, subd. (a)), and an immaterial allegation or irrelevant matter in a pleading entails (1) an allegation that is not essential to the statement of a claim or defense, (2) an allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense, or (3) a demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint (Code Civ. Proc., § 431.10, subds. (b)(1)-(3), (c)).

B. Court’s Determination

Given the Court’s determination on Defendant Fox’s demurrer, Defendant Fox’s motion to strike is MOOT.

IV. Motion to Compel State Bar’s Disclosure of Counsel’s Residential Address or for Publication [Keith Kim]: DENIED.

A. Legal Standard

A motion to compel an initial response can be made on the ground that a party did not serve a timely response to interrogatories or a demand to produce. (Code Civ. Proc., § 2031.300, subd. (a); see Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404 (Sinaiko).) To establish this ground, a movant must show:

(1) Proper service (see Code Civ. Proc., § 2031.040);

(2) Expiration of the deadline for the initial response 30 days after service or on date agreed to by parties (see Code Civ. Proc., § 2031.260, subds. (a), (b)); and

(3) No timely response (see Code Civ. Proc., § 2031.300).

A court must deny a motion to compel initial discovery where the discovery sought is outside the scope of discovery. (See CBS, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 19; see also Code. Civ. Proc., § 2017.010 [scope of discovery].)

B. Court’s Determination

1. Parties’ Arguments

In his moving papers, Plaintiff Park seeks an order (1) that compels Defendant the State Bar to disclose the residential address of Defendant Kim for service to be effected on Kim or (2) for publication of service of Defendant Kim, who has failed to oppose this motion. (Mot, pp. 1-4.)

In opposition, the State Bar argues that Plaintiff Park has failed to comply with the California Discovery Act’s provisions relating to compelling production from another party, which should take the form of a request for production and not a direct request to the Court. The State Bar also raises the privacy interest that Defendant Kim has in his residential address and argues that the interest in serving Defendant Kim does not overcome Kim’s privacy rights, which the State Bar must protect. (Opp’n, pp. 1-2.)

No reply appears in the record.

2. Merits

The Court finds in favor of Defendant the State Bar.

As to disclosure of Defendant Kim’s residential address, the Court agrees that a request for production must be made for that information consistent with the Discovery Act as it relates to production requests. (See Code Civ. Proc., § 2031.010 et seq.)

As for publication, the Court determines that Plaintiff Park’s motion is not in proper form and must therefore be denied. This is because the moving papers do not intelligibly clarify how or why publication is the proper form of service at this juncture following failed attempts at other methods of service aside from email. (Code Civ. Proc., § 415.50, subd. (a) [“A summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that …”].) This is particularly so given that Defendant Kim appears on the California Bar website, which discloses his working address, where service can be effected by substituted service pursuant to Code of Civil Procedure section 415.20.

Plaintiff Park’s motion is therefore DENIED.

V. Motion for the Appointment of Counsel: DENIED.

A. Legal Standard

“[W]hen an indigent plaintiff in a civil action requests the appointment of counsel, that request should be interpreted as invoking the right of meaningful access to the courts, even if the indigent plaintiff does not explicitly mention that right. Courts generally are required to give pleadings a liberal, yet reasonable, construction (Code Civ. Proc., § 452), and the same approach is warranted when an indigent, self-represented plaintiff requests the appointment of counsel. Based on current State of California and federal constitutional law, it is objectively reasonable to interpret such requests as being based on the right to meaningful access to the courts. The alternate principle, which would conclude a trial court need consider its discretionary authority to appoint counsel if and only if a self-represented, indigent plaintiff explicitly mentions the right of meaningful access, would itself operate as a barrier to meaningful access.

[¶] We further conclude that trial courts evaluating a request for the appointment of counsel by an indigent plaintiff must (1) recognize their discretionary authority to appoint counsel or implement other measures to afford the plaintiff meaningful access to the courts and (2) exercise that discretion in an informed manner.

[¶] This obligation or responsibility imposes a small burden on trial courts as they should be aware of their role in the administration of justice, the constitutional principles that define that role, and the rights of persons resorting to the court system. If this responsibility was not inherent in the constitutional and statutory right of access to the courts, then indigent litigants most in need of protection because of their inability to effectively represent themselves would be the least likely to obtain protection.” (Smith v. Ogbuehi (2019) 38 Cal.App.5th 453, 475-476 (Smith), paragraph breaks added.)

B. Court’s Determination

1. Parties’ Arguments

In his moving papers, Plaintiff Kim asks for the appointment of counsel based on his inability to speak English and the resulting difficulties in advancing a civil action against five Defendants. The moving papers otherwise go into the merits of the case in dense paragraphs. (Mot., pp. 1-13.)

No opposition or reply appears in the record.

2. Merits

The exercise of a trial court’s discretion to appoint counsel in a incarcerated individual’s civil case is guided by a three-step inquiry: (1) the trial court determines whether the incarcerated individual is indigent; (2) the court determines whether the lawsuit involves a bona fide threat to the incarcerated individual’s personal or property interests; and (3) if both conditions are satisfied, the trial court must consider the measures available to protect the incarcerated individual’s right of meaningful access to the courts, including the appointment of counsel. (Cal. Const. art. 1, § 3; Cal. Penal Code § 2601, subd. (d); Smith, supra, 38 Cal.App.5th at pp. 475-476.)

Here, based on past Court orders and discussions with Plaintiff Kim, the Court can facially accept that he is indigent, though the Court lacks a declaration from Plaintiff Kim giving greater detail as to his financial condition.

However, the Court fails to find a bona fide threat to Plaintiff Kim’s property interests, i.e., any interest he has in a cause of action against Defendant for violation of Plaintiff Kim’s rights.

This is because the right at issue—as discussed above in Section II—is legal malpractice, a question that is not ripe until there are allegations of (1) actual innocence and (2) postconviction relief, which is clearly not the case where Plaintiff Kim remains an incarcerated individual.

Plaintiff Park’s motion is therefore DENIED. 

VI. Conclusion

A. Demurrer [Defendant Herb Fox]

Defendant Herb Fox’s Demurrer to Plaintiff Jinwoo Park’s Third Amended Complaint [CRS# 2143] is SUSTAINED, without leave to amend, as to Defendant Herb Fox.

B. Motion to Strike [Defendant Herb Fox]

Defendant Herb Fox’s Motion to Strike Plaintiff Park’s Third Amended Complaint [CRS# 2143] is MOOT.

C. Motion Requesting Disclosure of Counsel’s Address [Plaintiff Jinwoo Park]

Plaintiff Jinwoo Park’s Motion to Request the State Bar for Defendant Keith Kim’s Residence Address is DENIED.

D. Motion for Appointment of Attorney [Plaintiff Jinwoo Park]

Plaintiff Jinwoo Park’s Motion to Request [] Appointment of Attorney is DENIED.