Judge Carolyn M. Caietti, Case 37-2022-00052021-CU-BC-CTL 2023-10-06 Tentative Ruling

Judge: Carolyn M. Caietti, Case: 37-2022-00052021-CU-BC-CTL, Date: 2023-10-06 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 05, 2023

10/06/2023 10:30:00 AM C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited Breach of Contract/Warranty Demurrer / Motion to Strike 37-2022-00052021-CU-BC-CTL LAVILLOTTI VS DONALD R HOLBEN & ASSOCIATES APC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 07/12/2023

Defendants Donald R. Holben & Associates APC, Donald Holben, Jack Fischer, Paul Duvall, Seana Scholtemeyer, Nicole Baldwin, Stephanie Marie Atkinson, Eugene Raymond Long, Jr., Mark Raymond Raftery, and Todd Griffin Glanz's Demurrer to the First Amended Complaint is OVERRULED.

Preliminary Matters On September 5, 2023, and while this demurrer was pending, Plaintiff filed a request for dismissal of the FAC against Defendant Benjamin Bartlett and the Court entered a dismissal. (ROA 34.) Thus, this demurrer no longer pertains to Defendant Bartlett.

On September 8, 2023, Plaintiff filed a request for dismissal of the FAC against Defendant Douglas Pettit and the Court entered a dismissal. (ROA 30.) Plaintiff's unopposed request for judicial notice of the State Bar of California Rules of Professional Conduct is granted and notice will be taken to the extent permitted.

Discussion A demurrer 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; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no 'speaking demurrers'). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) Plaintiffs' 51-page FAC asserts causes of action against each demurring-defendant for (1) legal malpractice – professional negligence; (2) breach of fiduciary duty; (3) breach of contract; and (4) fraud.

The FAC alleges Defendants represented Plaintiff in the underlying wrongful termination and sexual harassment lawsuit against her former employer (Lavillotti v. InnovaSystems International, LLC). Plaintiff never gave Defendants permission to file a lawsuit on her behalf. Defendants breached their fiduciary Calendar No.: Event ID: TENTATIVE RULINGS

2971586 47 CASE NUMBER: CASE TITLE: LAVILLOTTI VS DONALD R HOLBEN & ASSOCIATES APC [IMAGED] 37-2022-00052021-CU-BC-CTL and contractual duties to Plaintiff by, inter alia: failing to timely subpoena percipient witnesses for trial; instructed a private investigator to stop work on Plaintiff's case when she was late paying Defendant's bills; failed to send defense evidence to Plaintiff and to prepare Plaintiff for trial testimony; misappropriated Plaintiff's retainer funds which were designated to be used for costs only; practiced predatory billing practices; defrauded Plaintiff when they knowingly improperly billed for attorney fees for other firm clients and matters unrelated to Plaintiff's case.

Defendants demur to each cause of action on grounds each cause of action in the FAC does not state sufficient facts to constitute each cause of action. Defendants repeatedly argue the FAC only asserts general and conclusory allegations and lacks evidentiary support; and heavily relies on extrinsic evidence not reviewable on a demurrer (Ex., Demurrer, at p. 2:11-3:5, 6:22-28, 7:8-20, 8:11-16.) Defendants also argue the causes of action are uncertain.

Each Cause of Action States Sufficient Facts First Cause of Action: The first cause of action states sufficient facts to constitute legal malpractice (professional negligence). In a legal malpractice action arising from a civil proceeding, the 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.) Here, specifically, paragraph 121 sets forth examples of Defendants' alleged negligence, including: filing the underlying complaint without Plaintiff's consent; and failing to prepare her for trial, supervise and assist subordinate attorneys; timely and properly designate and make experts available for deposition and trial, introduce evidence of economic damages and object to subpoenas. (See also, e.g., FAC, at ¶¶ 120-122.) Second Cause of Action: The second cause of action states sufficient facts to constitute breach of fiduciary duty. The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach.

(Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086.) Here, the FAC at paragraph 126 sets forth Defendants' purported violations of the California Rules of Professional Conduct. (See also, e.g., FAC, at ¶¶ 125-127.) Third Cause of Action: The third cause of action states sufficient facts to constitute breach of contract.

(Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821; see also, Stanley, supra, 35 Cal.App.4th at p. 1092, fn. 7 (stating proof the attorney violated the Rules of Professional Conduct and other fiduciary duties owed to her client is sufficient to support a claim the attorney's conduct amounted to a breach of contract as well).) Here, the FAC at paragraph 133 alleges how Defendants breached the parties' retainer agreement. (See also, e.g., FAC, at ¶¶ 130-134 & Ex. A.) Fourth Cause of Action: The fourth cause of action states sufficient facts to constitute fraud. The elements of fraud are: (i) a misrepresentation; (ii) knowledge of falsity; (iii) intent to defraud, i.e., to induce reliance; (iv) justifiable reliance; and (v) damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Here, the FAC alleges Defendants knowingly improperly billed Plaintiff for attorney fees incurred for other clients and unrelated matters and represented they would end representation if not paid. (FAC, at ¶¶ 136-143.) For these reasons, the demurrer to each cause of action is OVERRULED.

The Causes of Action Are Not Uncertain The demurrer is OVERRULED to the extent it is on grounds of uncertainty. (C.C.P., § 430.10(e).) Demurrers for uncertainty are disfavored. (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) 'A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.' Calendar No.: Event ID: TENTATIVE RULINGS

2971586 47 CASE NUMBER: CASE TITLE: LAVILLOTTI VS DONALD R HOLBEN & ASSOCIATES APC [IMAGED] 37-2022-00052021-CU-BC-CTL (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty should be overruled when the facts as to which the complaint is uncertain are presumptively within the defendant's knowledge. (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.) Here, although the FAC makes the same allegations against all defendants, the actions taken by each defendant are presumptively within the defendant's knowledge and can be further clarified in discovery.

For these reasons, the demurrer is OVERRULED.

Concluding Orders Defendants are ordered to file and serve an answer to the FAC by October 13, 2023.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling.

Defendants are ordered to serve written notice of the Court's final ruling on all appearing parties by October 3, 2023.

All parties are reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of all motion paperwork.

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