Judge Daniel M. Crowley, Case Number: 23STCV09708, Date: 2024-02-05 Tentative Ruling

Defendants Vahagn Koshkaryan’s, Ara Saroian’s, and Koshkaryan Law Group’s demurrer to Plaintiff Charles Alvarez’s 1st and 2nd causes of action in his first amended complaint is sustained with 20 days leave to amend.

Defendants Vahagn Koshkaryan (“Koshkaryan”), Ara Saroian (“Saroian”), and Koshkaryan Law Group (“Law Group”) (collectively, “Defendants”) demur to Plaintiff Charles Alvarez’s (“Alvarez”) (“Plaintiff”) first amended complaint (“FAC”) as to each cause of action. (Notice of Demurrer, pgs. 1-2; C.C.P. §430.10(e).)

Defendants’ 10/5/23 request for judicial notice of the 8/23/23 Minute Order in LASC Case No. 18STCV05596, Alvarez et al. v. Ruskin et al., is granted. (D-RJN, Exh. A.)

Plaintiff filed his initial Complaint on May 1, 2023. Plaintiff filed the operative FAC on June 22, 2023, against Defendants alleging two causes of action: (1) professional negligence- legal malpractice; and (2) breach of fiduciary duty.

Plaintiff alleges on or about November 26, 2016, he and Defendants entered into an attorney client retainer agreement contract and Defendants agreed to represent Plaintiff for personal injuries received in an auto accident that occurred November 26, 2016. (FAC ¶4.) Plaintiff alleges Defendants also represented two other people, Jose Luiz Flores (“Flores”) and Miguel Carmona (“Carmona”), who were also passengers injured in the same vehicle that Plaintiff was injured in. (FAC ¶4.)

Plaintiff alleges on November 26, 2016, he was severely injured as a passenger by Jorge Favela (“Favela”), a driver who was under the influence of alcohol at the time of the crash. (FAC ¶5.) Plaintiff alleges Favela left the scene of the accident and hid from the police. (FAC ¶5.) Plaintiff alleges he accompanied the police to Favela’s home and on the way, the police found Favela and arrested him for DUI. (FAC ¶5.) Plaintiff alleges Favela was convicted of DUI. (FAC ¶5.) Plaintiff alleges Aaron Ruskin (“Ruskin”) was the owner of the vehicle who consented to Favela driving the vehicle and using the vehicle that injured Plaintiff. (FAC ¶5.)

Plaintiff alleges Defendants represented Plaintiff, Flores, and Carmona in a lawsuit against Favela and Ruskin in LASC Case No. 18STCV05596. (FAC ¶6.) Plaintiff alleges he has a meritorious case against Favela and Ruskin because he was severely injured and has incurred $267,416.46 in medical bills and future medical costs for knee surgery rehabilitation and rehabilitation of $150,000.00 for total medical damages of $417,416.46. (FAC ¶7.)

Plaintiff alleges prior to May 19, 2022, Plaintiff substituted Behrouz Shafie in place of Defendants in his lawsuit against Favela and Ruskin, and as of May 19, 2022, Plaintiff was no longer represented by Defendants. (FAC ¶¶8-9.) Plaintiff alleges on May 19, 2022, Koshkaryan signed and filed a request for dismissal to dismiss the entire action. (FAC ¶10, Exh. 1.)

On October 5, 2023, Defendants filed the instant demurrer. On December 26, 2023, Plaintiff filed his opposition. As of the date of this hearing no reply has been filed.

Defendants demur to Plaintiff’s 1st and 2nd causes of action on the basis they fail to state facts sufficient to constitute causes of action. (Demurrer, pg. 2; C.C.P. §430.10(e).)

Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (C.C.P. §430.41(a), emphasis added.) A declaration must be filed with a demurrer regarding the results of the meet and confer process. (C.C.P. §430.41(a)(3).)

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) 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. (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

Professional Negligence- Legal Malpractice & Breach of Fiduciary Duty (1st & 2nd COAs)

“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.) “[I]f the allegedly negligent conduct does not cause damage, it generates no cause of action in tort.” (Moua v. Pittullo, Howington, Barker, Abernathy, LLP (2014) 228 Cal.App.4th 107, 112-113.)

“‘The breach of fiduciary duty can be based upon either negligence or fraud depending on the circumstances. It has been referred to as a species of tort distinct from causes of action for professional negligence [citation] and from fraud [citation].’ ‘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.’” (Knutson v. Foster (2018) 25 Cal.App.5th 1075, 1093-1094, internal citations omitted.)

Plaintiff alleges Defendants negligently rendered legal services because, without Plaintiff’s knowledge or consent and without any authority, Defendants dismissed Plaintiff’s personal injury case. (FAC ¶22.) Plaintiff alleges he has lost the opportunity to recover on his meritorious case against Favela and Ruskin as Plaintiff was severely injured and has incurred $267,416.46 in medical bills and future medical costs for knee surgery rehabilitation of $150,000.00 for total medical damages of $417,416.46 and $1,000,000 in pain and suffering. (FAC ¶23.)

Plaintiff alleges Defendants failed to file a valid motion to set aside judgment based upon attorney excusable neglect. (FAC ¶24.) Plaintiff alleges Defendants failed to properly prosecute an appeal to preserve Plaintiff’s claims. (FAC ¶25.) Plaintiff alleges Defendants failed to exercise reasonable care and skill in conducting the post dismissal motion to set aside and file and appeal, which would have been sufficient to reinstate Plaintiff’s case. (FAC ¶26.) Plaintiff alleges Defendants failed to exercise reasonable care and skill in conducting the post dismissal motion to set aside and appeal, and neglected to present available evidence that was competent and relevant to the issues therein, and that the additional evidence, together with other evidence presented would have been sufficient to prove Plaintiff’s cause of action for the applicable burden of proof. (FAC ¶27.)

Plaintiff alleges on information and belief that had such evidence been presented to the Court by Defendants, set aside the dismissal, and filed an appeal, Plaintiff would have been awarded a judgment. (FAC ¶28.)

Plaintiff alleges Defendants and Plaintiff were in an attorney-client relationship and Plaintiff was in a vulnerable fragile condition and was unable to understand the proceedings. (FAC ¶¶37-38.) Plaintiff alleges Defendant knew of Plaintiff’s disability and took advantage of Plaintiff. (FAC ¶38.) Plaintiff alleges by virtue of the attorney-client relationship that existed between Defendants and Plaintiff, and by virtue of Plaintiff having placed confidence in the fidelity and integrity of Defendants and in entrusting Defendants with representation of his personal injury case, and a confidential relationship existed at all times herein mentioned between Plaintiff and Defendants, Defendants owed to Plaintiff a fiduciary duty even after the attorney-client relationship was terminated. (FAC ¶39.)

Plaintiff alleges despite having voluntarily accepted the trust and confidence of Plaintiff with regard to Defendants’ representation of the Plaintiff before discharge of their employment by Plaintiff, and in violation of this relationship of trust and confidence, Defendants abused the trust and confidence of Plaintiff during the attorney-client relationship by dismissing the Plaintiff’s case without his consent. (FAC ¶40.) Plaintiff alleges that Defendants would benefit and collect their attorneys’ fees on the co-plaintiffs’ case and put Defendants’ interests ahead of the interests of Plaintiff in this case. (FAC ¶41.) Plaintiff alleges Defendants did this just so they would be paid their attorneys’ fees due from Plaintiff in complete disregard of the fact that Defendants were no longer the Plaintiff’s attorney. (FAC ¶41.) Plaintiff alleges Defendants failed to advise him of the conflict of interest and the severe damage it would cause and did cause to Plaintiff. (FAC ¶41.)

Plaintiff alleges because of Defendant’ breach of fiduciary duties to him, Defendants were paid more than $150,000.00 in attorneys’ fees and the Plaintiff received no money. (FAC ¶42.)

Plaintiff filed a motion to set aside and vacate the May 2022 dismissal in the underlying case, which was heard on August 23, 2023, and granted in full, restoring the underlying case to active status. (D-RJN, Exh. A.) Because Plaintiff’s underlying case is allowed to go forward, he can no longer allege damages he sustained from Defendants’ conduct. (Moua, 228 Cal.App.4th at pgs. 112-113.)

Plaintiff argues he should be granted leave to amend his damages based on the legal fees incurred in correcting Defendants’ erroneous dismissal of Plaintiff’s case and the upset, worry, and emotional distress he felt for a year when his case was dismissed. The Court agrees.

Defendants’ demurrer to Plaintiff’s 1st and 2nd causes of action is sustained with 20 days leave to amend.

Defendants’ demurrer to Plaintiffs’ 1st and 2nd causes of action is sustained with 20 days leave to amend.

Hon. Daniel M. Crowley

Judge of the Superior Court