Judge Bruce G. Iwasaki, Case Number: 23STCV31807, Date: 2024-08-08 Tentative Ruling

Tentative Ruling: Defendants’ Demurrer to the First Amended Complaint is overruled. Defendants’ Motion to Strike is denied. Defendants to answer in 20 days.

Plaintiff retained Defendants to prosecute a legal action for personal injury and property damage arising from a car accident. Plaintiff alleges Defendants failed to prosecute the action, incurring sanctions, including terminating sanctions. Plaintiff alleges Defendants also failed to file the case within the statute of limitations. Plaintiff alleges Defendants concealed dismissal of the action from him despite Plaintiff’s inquiries.

On December 29, 2023, Plaintiff filed this action against Defendants. On April 17, 2024, Plaintiff filed the operative First Amended Complaint (“FAC”) against Defendants alleging (1) breach of contract; (2) fraud; (3) general negligence. Plaintiff also seeks exemplary damages.

Defendants demur to the second cause of action for fraud pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f). Defendants argue Plaintiff fails to allege fraud with specificity, because the nature of the misrepresentations are not clearly alleged.

The elements of fraud are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages. (Civ. Code §1709.) Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 216.)

Consistent with the rule requiring specificity in pleading fraud, a complaint must state ultimate facts showing that the defendant intended or had reason to expect reliance by the plaintiff or the class of persons of which he is a member.” (Geernaert v. Mitchell (1995) 31 Cal. App. 4th 601, 608.) A plaintiff must allege what was said, by whom, in what manner (i.e. oral or in writing), when, and, in the case of a corporate defendant, under what authority to bind the corporation. (Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.)

Plaintiff alleges fraud with sufficient specificity. Plaintiff alleges that Defendant Daniel M. Bald d/b/a Law Offices of Daniel Bald affirmatively misrepresented to him repeatedly from April 13, 2018 to January 2023 that he was actively “working on the case.” (FAC, Second Cause of Action, FR-2.a.) Plaintiff also alleges Defendant told him he was no longer practicing law prior to referring him to another attorney. (Id.) Plaintiff discovered later that the case had been dismissed from the subsequent attorney’s paralegal. (Id.) Plaintiff also later discovered that Defendant did not prosecute the case and did not inform Plaintiff of discovery requests served by the opposing party. (Id. at FR-2.b.)

Plaintiff identifies with specificity the nature of the misrepresentation, who said it and when it was said. These allegations are sufficient.

Defendants move to strike Plaintiff’s requests for attorney’s fees, general damages for medical expenses and emotional distress and punitive damages.

Defendants fail to make a coherent argument regarding the impropriety of Plaintiff’s request for attorney’s fees. Defendants merely state that such fees are not recoverable in a legal malpractice action. Defendants cite to Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976) 57 Cal.App.3d 104, 111-112 in support of their position that fees cannot be recovered in a malpractice action. However, Roberts stands for the opposite proposition, citing multiple grounds for recovery of fees in a legal malpractice claim, including contract, statute and where claimed as damages, the tort of another doctrine. (Roberts, supra, 57 Cal.App.3d at 112.)

Defendants argue Plaintiff may not recover emotional distress damages in a legal malpractice action. Generally, a plaintiff may not recover emotional distress damages for legal malpractice. (Merenda v. Supr. Ct. (1992) 3 Cal.App.4^th 1, 4. (disapproved of on other grounds in Ferguson v. Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal.4^th 1037).)

However, Plaintiff does not only allege legal malpractice. Plaintiff also alleges a fraud cause of action, for which emotional distress damages are legally recoverable. “Although damages for emotional distress can be recovered in a fraud cause of action, such damages have been allowed only as an aggravation of other damages.” (Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1269.)

Defendants argue Plaintiff cannot recover punitive damages for legal malpractice. However, Plaintiff successfully alleges a cause of action for fraud. Under Code of Civil Procedure section 3294, punitive damages are available for fraud, malice or oppression.

Defendants’ Demurrer to the FAC is overruled. Defendants’ Motion to Strike is denied. Defendants shall serve and file an answer on or before August 30, 2024.

Department 58