Judge Armen Tamzarian, Case 22STCV16884 2023-05-03 Tentative Ruling

Judge: Armen Tamzarian, Case: 22STCV16884, Date: 2023-05-03 Tentative Ruling

Case Number: 22STCV16884 Hearing Date: May 3, 2023 Dept: 52

Defendants Marc A. Collins, Azim Khanmohamed, and Collins & Khan LLP’s Demurrer and Motion to Strike Portions of First Amended Complaint

Requests for Judicial Notice

Defendants Marc A. Collins, Azim Khanmohamed, and Collins & Khan LLP request judicial notice of four documents. All four documents are court records whose existence, contents, and legal effects are subject to judicial notice. (Evid. Code, § 452(d).) Defendants’ requests for judicial notice are granted.

Demurrer

Defendants Marc A. Collins, Azim Khanmohamed, and Collins & Khan LLP demur to all three causes of action alleged in the first amended complaint by plaintiffs Marshall Knoll and Reni Knoll.

1. Professional Negligence

Plaintiffs do not allege sufficient facts for professional negligence or legal malpractice. Its “elements 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 v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.)

Plaintiffs do not allege facts showing proximate causation of damages. In an action for legal malpractice, the plaintiff must do more than show “it was possible to obtain a better settlement or a better result at trial. The mere probability that a certain event would have happened will not furnish the foundation for malpractice damages.” (Barnard v. Langer (2003) 109 Cal.App.4th 1453, 1461.) “[T]he plaintiff must establish that but for the alleged negligence of the defendant attorney, the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred.” (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.)

The first amended complaint alleges, “Defendants failed to meet multiple deadlines and failed to meet the standard of care in” representing plaintiffs in the underlying action. (FAC, ¶ 8.) “Among others, the Defendants failed to calendar and meet deadlines for responding to and filing papers in connection with opposing and bringing motions for summary judgment, designating experts and others -- even though opposing counsel on some of these occasions called these deadlines to Defendants’ attention and offered to extend them -- all with disastrous results for Plaintiffs.” (Ibid.)

Plaintiffs do not allege facts showing any of these alleged breaches of the standard of care resulted in a worse outcome in the underlying case. They make only a conclusory allegation of “disastrous results.” Missing deadlines to oppose summary judgment could only cause damages if the plaintiffs lost the underlying action on summary judgment. Plaintiffs do not allege that. Missing deadlines to move for summary judgment could only cause damages if plaintiffs would have won on summary judgment. On these allegations, the fact that plaintiffs ultimately lost after bench trial (RJN, Ex. 4) negates the conclusion that missing deadlines to move for summary judgment harmed them. Plaintiffs similarly allege no facts suggesting that timely designating expert witnesses would have resulted in a better outcome.

2. Extortionate Threats

Plaintiffs do not allege sufficient facts for this cause of action. Civil extortion seeks “recovery of money obtained by the wrongful threat of criminal or civil prosecution.” (Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 426 (Fuhrman) overruled on other grounds by Silberg v. Anderson (1990) 50 Cal.3d 205.) “It is essentially a cause of action for moneys obtained by duress, a form of fraud.” (Ibid.)

Plaintiffs do not allege any wrongful threat of criminal or civil prosecution. The first amended complaint alleges, “In March of 2021, Khanmohamed made extortionate threats to the Plaintiffs in an effort to force Plaintiffs to pay fees previously waived due to Defendants failure to perform professionally. Among others, Kahnmohamed threatened to cause the Knolls to be abandoned at the eve of trial in such a way as to deliberately prejudice them leaving them, as he put it, ‘fucked’.” (FAC, ¶ 9.) Threatening to abandon clients on the eve of trial may be unethical, but it is not a threat of criminal or civil prosecution.

Moreover, plaintiffs have not alleged facts showing they suffered damages from any extortion. Such damages require that the plaintiffs “actually paid the money demanded by the defendants.” (Fuhrman, supra, 179 Cal.App.3d at p. 428.) Plaintiffs do not allege they paid the fees defendants demanded. They therefore have not alleged any resulting damages.

3. Intentional Infliction of Emotional Distress

Plaintiffs fail to allege sufficient facts for this cause of action. Its elements are “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050 (Hughes).)

Plaintiffs do not allege sufficiently extreme or outrageous conduct for this cause of action. “An essential element of such a claim is a pleading of outrageous conduct beyond the bounds of human decency.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.) “Liability for intentional infliction of emotional distress ‘ “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” ’ ” (Hughes, supra, 46 Cal.4th at p. 1051.)

As discussed above, the first amended complaint alleges defendant Khanmohamed “threatened to cause the Knolls to be abandoned at the eve of trial in such a way as to deliberately prejudice them leaving them, as he put it, ‘fucked’.” (FAC, ¶ 9.) This alleged conduct, though unprofessional and unkind, is not beyond the bounds of human decency. At most, it is a mere threat or indignity.

Plaintiffs also do not allege sufficiently severe emotional distress for this cause of action. “Only emotional distress of ‘such substantial quantity or enduring quality’ that an individual in civilized society should not be expected to endure it constitutes severe emotional distress.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) “[T]he mere allegation that the plaintiffs suffered severe emotional distress, without facts indicating the nature or extent of any mental suffering incurred as a result of the defendant’s alleged outrageous conduct, failed to state a cause of action for intentional infliction of emotional distress.” (Pitman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1047.)

Plaintiffs make only the conclusory allegation that defendants’ conduct “cause[d] severe emotional distress.” (FAC, ¶ 9.) They allege no facts indicating the nature of extent of any emotional distress they suffered.

Motion to Strike

Defendants Marc A. Collins, Azim Khanmohamed, and Collins & Khan LLP move to strike the first amended complaint’s prayer for attorney fees. A party may move to strike a “demand for judgment requesting relief not supported by the allegations of the complaint.” (CCP § 431.10(b)(3).) A plaintiff may only recover attorney fees when authorized by contract, statute, or other law. (CCP § 1033.5(a)(10).) Plaintiffs allege no contractual or other legal basis for recovering attorney fees.

Disposition

Defendants Marc A. Collins, Azim Khanmohamed, and Collins & Khan LLP’s demurrer to plaintiffs’ first amended complaint is sustained with 20 days’ leave to amend.

Defendants’ motion to strike is granted with 20 days’ leave to amend. The court hereby strikes the following portion of the first amended complaint: “For attorneys fees.” (Page 3, line 23.)