Judge: Daniel S. Murphy, Case: 22STCV28183, Date: 2023-05-05 Tentative Ruling

Case Number: 22STCV28183    Hearing Date: May 5, 2023    Dept: 32

BACKGROUND

            On August 29, 2022, Plaintiff Peter J. Zomber and Law Offices of Peter J. Zomber, PC initiated this action against Defendant John Patrick Johnson. Plaintiffs filed the operative First Amended Complaint on January 23, 2023, asserting (1) breach of contract and (2) quantum meruit.

            The FAC alleges that the parties entered into a written fee agreement in 2004, which encompassed representation in several matters. (FAC ¶ 7.) Plaintiff was retained to represent Defendant in business matters related to Defendant’s divorce. (Id., ¶ 8.) Around July 2011, Plaintiff left the law firm he was working for and formed his own firm, and Defendant decided to have Plaintiff continue representing him. (Id., ¶ 9.) At this time, the parties entered into an oral agreement relating to the representation and fees. (Ibid.)

            Around 2014, Plaintiff represented Defendant in family law matters after Defendant’s attorney substituted out. (FAC ¶ 10.) Defendant retained another family law attorney at the end of 2014. (Ibid.) In 2015, Plaintiff’s first law firm dissolved, and he formed Peter J. Zomber PC. (Id., ¶ 11.) Defendant again followed Plaintiff to the new firm and continued to be represented by Plaintiff. (Ibid.) Plaintiff continued to work on Defendant’s divorce case and other matters. (Ibid.) As in previous years, Defendant continued to pay periodic lump sums toward open invoices and ongoing work. (Ibid.) In January 2017, Defendant’s second family law attorney abruptly dissociated from the case and left Plaintiff to try the divorce case. (Id., ¶ 12.)

            Around April 2020, Defendant’s other wife filed for divorce, and Defendant attempted to represent himself in the matter for a while before retaining Plaintiff to represent him. (FAC ¶¶ 13-15.) The first divorce case concluded in May 2021, and Defendant continued to pay periodic sums for open invoices on both divorce cases. (Id., ¶ 17.) Defendant stopped making payments in December 2021 and has since refused to arbitrate the fee dispute. (Id., ¶¶ 18-22.) This lawsuit followed.

            On March 15, 2023, Defendant filed the instant demurrer to the FAC, arguing that Plaintiff improperly relies on oral contracts for fee arrangements over $1,000 and also seeks fees for an action that is still pending, which would result in violation of the attorney-client privilege.

LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.) A complaint will survive demurrer if it sufficiently apprises the defendant of the issues, and specificity is not required where discovery will clarify the ambiguities. (See Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608.) All reasonable inferences are drawn in favor of the complaint. (Kruss v. Booth (2010) 185 Cal.App.4th 699, 713.)

MEET AND CONFER

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court notes that Defendant has complied with the meet and confer requirement. (Lipofsky Decl. ¶ 4.)

DISCUSSION

I. Oral Contract

            “In any case not coming within Section 6147 in which it is reasonably foreseeable that total expense to a client, including attorney fees, will exceed one thousand dollars ($1,000), the contract for services in the case shall be in writing.” (Bus. & Prof. Code, § 6148(a).) However, this requirement does not apply to “[s]ervices rendered in an emergency to avoid foreseeable prejudice to the rights or interests of the client or where a writing is otherwise impractical,” or to “[a]n arrangement as to the fee implied by the fact that the attorney’s services are of the same general kind as previously rendered to and paid for by the client.” (Id., subd. (d).)

            While the FAC admits that the parties had an oral contract, the facts indicate that Plaintiff was retained for emergency services and that a fee arrangement was implied by prior services and payments. As discussed above, Plaintiff was retained after Defendant’s family law attorneys withdrew on two separate occasions. (FAC ¶¶ 10, 12.) Plaintiff also substituted in after Defendant was unable to effectively represent himself in the second divorce. (Id., ¶¶ 13-15.) Additionally, Plaintiff continuously provided, and Defendant continuously paid for, legal services related to the divorces. (Id., ¶¶ 11, 17.) Defendant brings up factual issues regarding whether the services were truly provided in an emergency and whether the services were of the same general kind throughout the entire course of the representation. These issues cannot be resolved on a demurrer. The complaint alleges enough facts to support a reasonable inference that Plaintiff provided at least some services that fall under the statutory exceptions.  

The elements of breach of contract have otherwise been adequately alleged. To establish breach of contract, a plaintiff must show: (1) the contract existed, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) It is sufficiently clear from the allegations that the parties entered into a contract for Plaintiff to provide legal representation related to Defendant’s divorces in exchange for payment. Defendant’s refusal to pay constitutes a breach and naturally causes damages in the unpaid amount.

            Alternatively, if the contracts are unenforceable, Plaintiff is entitled to quantum meruit. “Failure to comply with any provision of this section renders the agreement voidable at the option of the client, and the attorney shall, upon the agreement being voided, be entitled to collect a reasonable fee.” (Bus. & Prof. Code, § 6148(c).) “This provision of section 6148 codifies the general rule that when legal services have been provided without a valid written fee agreement, the attorney may recover the reasonable value of the services she performed in the action pursuant to a common count for quantum meruit.” (Leighton v. Forster (2017) 8 Cal.App.5th 467, 490.)

II. Attorney-Client Privilege

            The attorney-client privilege does not apply “as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.” (Evid. Code, § 958.) Here, the lawsuit arises from Defendant’s breach of his duty to pay for Plaintiff’s services. The case Defendant relies on acknowledges that the privilege applies “unless a statutory provision removes the protection” and specifically cites Section 958 as one such provision. (Solin v. O'Melveny & Myers, LLP (2001) 89 Cal.App.4th 451, 458, 463.)

            Defendant cites to Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 288, where the court held that “[t]he privilege . . . protects the confidentiality of invoices for work in pending and active legal matters.” The court reasoned that “the information contained within certain invoices may be within the scope of the privilege.” (Id. at p. 297.) For example, “an invoice that shows a sudden uptick in spending might very well reveal . . . investigative efforts and trial strategy.” (Ibid.) Defendant argues that the same risk is present here because the second divorce case, for which Plaintiff seeks compensation, is still pending. However, Los Angeles County concerned the trial court’s writ of mandate compelling the County of Los Angeles to produce billing statements pursuant to a Public Records Act request. (Id. at p. 289.) By contrast, this case is merely at the pleading stage, and no particular information has been put at issue by a discovery request or court order. Los Angeles County does not support dismissing a case at the pleading stage because of the possibility that confidential information may be put at issue later in the litigation. That case also did not concern an issue of breach between an attorney and client, and it does not override the exception embodied in Section 958.

            Defendant also relies on Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, which discussed the dismissal of a lawsuit against an attorney that cannot be properly defended without forcing the defendant attorney to expose confidential client information. In Dietz, the plaintiff was an attorney who referred a case to the defendant law firm. (Id. at pp. 775-76.) The defendant allegedly agreed to pay the plaintiff a portion of the fees that it received in the matter. (Ibid.) The defendant filed a motion for protective order, requesting dismissal of the case on the grounds that it could not present a complete defense to the case without violating its ethical duties to the third party client. (Id. at p. 776.) The trial court only dismissed the plaintiff’s fraud claim, not the entire lawsuit, and only did so after an evidentiary hearing. (Ibid.) The Court of Appeal affirmed, holding that “the trial court did not violate [the defendant’s] right to due process by refusing to dismiss the action.” (Ibid.)

            Dietz is distinguishable because, as discussed above, no particular information has been placed at issue. A demurrer only tests the sufficiency of the allegations, and at the pleading stage, it cannot be determined as a matter of law that the attorney-client privilege precludes Defendant from presenting a complete defense. The trial court in Dietz only ruled on the matter after an evidentiary hearing, and even then, did not find sufficient cause to dismiss the entire action. Furthermore, Dietz and Solin involved the privilege held by a nonparty client. By contrast, this case involves only Plaintiff and Defendant. Defendant is not an attorney and would not be violating any ethical duties to a third party by defending this lawsuit. Therefore, this case does not implicate Defendant’s due process rights. Plaintiff is the attorney in this case, and Defendant is the former client. A client cannot assert the privilege to preclude an attorney from obtaining information necessary to litigate an issue of breach between the attorney and client. (Evid. Code, § 958; Solin, supra, 89 Cal.App.4th at pp. 463-64.)

            Ultimately, Plaintiff has alleged sufficient facts to state the causes of action for breach of contract and quantum meruit. A demurrer is concerned with nothing more. Should the evidence in this case implicate the attorney-client privilege, the issue may be dealt with when it arises.

III. Special Demurrer

A demurrer for uncertainty is granted “if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.) Usually, a complaint does not need to be a “model of clarity” to survive a demurrer because most ambiguities can be clarified through discovery. (Ibid.)     

Defendant also demurs to the FAC on the grounds of uncertainty, arguing that Plaintiff has conflated (i) Peter Zomber the individual, (ii) the Law Offices of Peter Zomber, (iii) Zomber & Panagiotis, and (iv) Murphy, Pearson, Bradley & Feeney. Defendant takes issue with the fact that the complaint references “Zomber” without specifying. Defendant argues that this is important because an attorney cannot be excused from the written retainer requirement by relying on a written agreement with a former law firm.

            However, it is sufficiently clear that Peter Zomber and Peter Zomber, PC are the only Plaintiffs in this case and therefore the only ones pursuing unpaid fees. The complaint mentions Zomber’s prior law firms as background information, but it does not conflate them. Nor are Plaintiffs relying on the original written agreement from when Zomber was employed at Murphy Pearson. Instead, Plaintiffs rely on the exceptions to the written agreement rule because they acknowledge that the fee agreements were oral.

            There are no grounds for a special demurrer because the FAC alleges sufficient facts to place Defendant on notice of the claims, and any ambiguities may be resolved in discovery.

CONCLUSION

            Defendant’s demurrer is OVERRULED.