Judge Bruce G. Iwasaki

Department 58

Hearing Date: December 6, 2023

Case Name: Marroquin v. Horner

Case No.: 23STCV19956

Matter: Demurrer

Moving Party: Defendant Brenton Horner

Responding Party: Plaintiff Nancy Marroquin

Tentative Ruling: The Demurrer to the Complaint is overruled to the second cause of action and sustained with leave to amend as to the third cause of action.

This is a legal malpractice case. In May 2017, Plaintiff retained Defendant Brenton Horner (Defendant) to represent her in filing a wrongful death lawsuit stemming from a bus accident involving Plaintiff’s mother Yolanda Reyes Mendoza (Decedent) and twelve other passengers. The Complaint alleges causes of action for (1.) negligence, (2.) breach of fiduciary duty, and (3.) breach of contract.

On October 24, 2023, Defendant demurred to the second and third causes of action in the Complaint. Plaintiff filed an opposition to the demurrer.

The Court sustains the demurrer with leave to amend as to the third cause of action, and overrules as to the second cause of action.

Legal Standard for Demurrers

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc. § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc. § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

Second Cause of Action – Breach of Fiduciary Duties

Defendant argues that the breach of fiduciary duty claim is duplicative of the legal malpractice claim, and that Plaintiff has failed to allege a breach of loyalty or confidentiality.

First, the Court the claims are not duplicative.

A breach of fiduciary duty is a tort claim entirely distinct from a malpractice claim based on professional negligence. (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086; Barbara A. v. John G. (1983) 145 Cal.App.3d 369, 382-383.) “The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, breach of fiduciary duty, and damages. [Citation.]” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820–821.) To state a cause of action for legal malpractice, “a plaintiff must plead ‘(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.’ ” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 179.)

Preliminarily, there is a split of authority whether a demurrer may be sustained on the ground that a cause of action is duplicative. (Compare Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 [demurrer properly sustained on ground that cause of action was duplicative] with Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 890 [whether a cause of action is duplicative “is not a ground on which a demurrer may be sustained”].)

Moreover, no California court has explicitly held that a breach of fiduciary duty claim cannot merely duplicate a claim for professional negligence. (See Buehler v. Sbardellati (1995) 34 Cal.App.4th 1527, 1544, fn. 9 [noting “there is authority for the view the breach of fiduciary duty theory is separate from the professional negligence theory” but “leav[ing] any resolution of this separate cause of action question to another case”].)

Here, although the negligence claim and breach of fiduciary duty claim are predicated on the same facts, the two claims involve different elements. That is, the same facts have resulted in different breaches. (Compare Compl., ¶ 28 with ¶ 33.) Thus, at this demurrer stage, the Court declines to find the claims are duplicative as matter of law.

Second, the Complaint alleges that Defendant breached duties of loyalty and confidentiality.

Defendant quotes from Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1102, regarding the duty owed by attorney to client: “The basic fiduciary obligations are twofold: undivided loyalty and confidentiality. Although the phrasing ... is varied and often dependent upon the context of particular circumstances, this rule exists in every jurisdiction in the United States.”

As argued in the opposition, “[t]he scope of an attorney’s fiduciary duty may be determined as a matter of law based on the Rules of Professional Conduct which, ‘together with statutes and general principles relating to other fiduciary relationships, all help define the duty component of the fiduciary duty which an attorney owes to his [or her] client.’” (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086.)

Here, Plaintiff alleges Defendant never filed a lawsuit on her behalf and, instead, filed a wrongful death lawsuit on behalf of Plaintiff’s step-father. (Compl., ¶ 8.) After Plaintiff’s step-father died, Defendant advised Plaintiff to sign a declaration to become the successor in interest to her step-father’s claims, and she did so. (Compl., ¶ 10.) In advising Plaintiff to sign the declaration, Defendant misled Plaintiff into thinking that Defendant was helping her become the successor in interest to her step-father’s claims. (Compl., ¶ 21.) However, unbeknownst to Plaintiff, Defendant never filed this declaration, and Defendant did not assert any claims on Plaintiff’s behalf in the step-father’s wrongful death lawsuit or in any other lawsuit. (Compl., ¶ 12.) Instead, Defendant settled the step-father’s wrongful death lawsuit without Plaintiff’s input or consent and notified her that a purported settlement check in the amount of $39,400.00 was available for her. (Compl., ¶ 15.) Plaintiff alleges that if Defendant had asserted wrongful death claims on Plaintiff’s behalf and assisted Plaintiff in becoming the successor in interest to her step-father’s claims, Plaintiff would have received more than the $39,400.00 purported settlement. (Compl., ¶ 22.)

Plaintiff contends these allegations show Defendant violated the Rules of Professional Conduct, including: Rule 1.1 (Competence); Rule 1.2 (Scope of Representation and Allocation of Authority); Rule 1.3 (Diligence); Rule 1.4 (Communication with Clients); Rule 1.7 (Conflict of Interest: Current Clients); Rule 2.1 (Advisor); and Rule 8.4 (Misconduct).

These allegations are sufficient to state a claim for breach of fiduciary duty. The demurrer to the second cause of action is overruled.

Third Cause of Action – Breach of Contract

Defendant demurs to this cause of action on the grounds Plaintiff has not alleged the terms of the agreement, the parties to the agreement, or even whether it was written or oral.

To state a claim for breach of contract, a plaintiff must allege “(1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.)

Plaintiff alleges the existence of a contract in the form of the retainer agreement, and that she performed all of her nonexcused obligations. However, as argued by the demurrer, it is not clear what specific terms of the contract Defendant has breached. Moreover, although the opposition contends the contract is written, this allegation is not contained within the Complaint. (Code Civ. Proc., § 430.10, subd. (g).)

Accordingly, the breach of contract claim is insufficiently pled. The demurrer to the third cause of action is sustained with leave to amend.

Conclusion

The demurrer is overruled to the second cause of action and sustained as to the third cause of action. Plaintiff shall have leave to amend. The amended complaint shall be served and filed on or before January 8, 2024.