Judge: Barbara M. Scheper, Case: 23STCV25583, Date: 2024-03-04 Tentative Ruling
Case Number: 23STCV25583 Hearing Date: March 4, 2024 Dept: 30
Dept. 30
Calendar No.
Zheng vs. The
Law Offices of Angela Swan, et. al., Case No. 23STCV25583
Tentative Ruling
re: Defendants’ Demurrer to Complaint;
Motion to Strike
Defendants
Law Offices of Angela Swan and Angela Swan demur to Plaintiff’s complaint for
professional negligence. The demurrer is
overruled. Defendants are ordered to
answer with ten (10) days of today’s date.
The party against whom a complaint has been
filed may object to the pleading, by demurrer, on several grounds, including
the ground that the pleading does not state facts sufficient to constitute a
cause of action and it cannot be determined how, or in what manner, Defendants
committed or can be liable for such cause of action. (Code Civ. Proc. §§
430.10(e) and 430.10(f).)
“A demurrer tests the sufficiency of a
complaint as a matter of law.” (Durell
v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives
the complaint a reasonable interpretation, and treats the demurrer as admitting
all material facts properly pleaded.” (Ibid.)
A demurrer accepts as true all well pleaded facts and those facts of which the
court can take judicial notice but not deductions, contentions, or conclusions
of law or fact. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068,
1078.) Although courts construe pleadings liberally, sufficient facts must be
alleged to support the allegations pled to survive a demurrer. (Rakestraw v.
California Physicians' Serv. (2000) 81 Cal.App.4th 39, 43.)
Where a demurrer is sustained, leave to amend
must be allowed where there is a reasonable possibility of successful
amendment. (Goodman v. Kennedy (1976) 18 Cal.3d
335, 349.) The burden is on the plaintiff to show the court that a pleading
can be amended successfully. (Ibid.) “If there is any reasonable
possibility that the plaintiff can state a good cause of action, it is error to
sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation
Dist. (1969) 70 Cal.2d 240, 245.)
Initially, the Court rejects
Defendants’ contention that the complaint is ambiguous,
unintelligible, and uncertain as the complaint clearly sets
forth the allegations against Defendants.
“The
elements of a cause of action in tort for professional negligence are: (1) the
duty of the professional to use such skill, prudence, and diligence as other
members of his profession commonly possess and exercise; (2) a breach of that
duty; (3) a proximate causal connection between the negligent conduct and the
resulting injury; and (4) actual loss or damage resulting from the
professional’s negligence.” (Budd v. Nixen (1971) 6 Cal.3d 195, 200.)
The Court
finds that Plaintiff has sufficiently alleged a cause of action for
professional negligence against Defendants. (Complaint, ¶¶ 6-21.)
As to
Defendants’ argument that the first cause of action is barred by the statute of
limitations, the Court rejects such contention. “An action against an attorney
for a wrongful act or omission . . . 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.” (Code Civ. Proc., § 340.6,
subd. (a).) Here, Plaintiff alleges that he discovered Defendants’ wrongful
actions on August 22, 2023 (Complaint, ¶ 20), and the complaint in this action
was filed on October 19, 2023. Thus, the first cause of action is not barred by
the statute of limitations.
The Court
finds that Defendants’ argument that Plaintiff failed to mitigate damages is
inapposite to a determination of whether the first cause of action states
sufficient facts to constitute a cause of action. Thus, Defendants’ citation to
Shaffer v. Debbas (1993) 17 Cal.App.4th 33, 41 is inapposite.
Motion to Strike
Defendants move to strike Paragraph
21 from the complaint and argue that Defendant Angela Swan should be dismissed
as she is an employee of The Law Offices of Angela Swan. (Motion, p.
10:1-11:13.)
“[A] notice of motion must state in the opening paragraph the
nature of the order being sought and the grounds for issuance of the order.”
(Cal. Rules of Court, Rule 3.1110, subd. (a).) “A notice of motion to strike a
portion of a pleading must quote in full the portions sought to be stricken
except where the motion is to strike an entire paragraph, cause of action,
count, or defense. Specifications in a notice must be numbered consecutively.”
(Cal. Rules of Court, Rule 3.1322, subd. (a).)
Defendants filed a “Demurrer With
Motion to Strike Plaintiff’s Complaint”; however, the notice of motion does not
specifically reference grounds for the motion to strike or what portions of the
complaint that Defendants seek to strike. Defendants merely provide a two-page
argument included in the demurrer which requests that the Court strike damages
from the first cause of action and dismiss Angela Swan as a defendant.
Defendants have improperly combined their demurrer and motion to strike into
one memorandum of points and authorities and have failed to give proper notice
concerning the motion to strike.