Judge: Daniel S. Murphy, Case: 24STCV22893, Date: 2024-11-22 Tentative Ruling

Case Number: 24STCV22893    Hearing Date: November 22, 2024    Dept: 32

BACKGROUND

            On September 6, 2024, Plaintiff Yan Zhang filed this legal malpractice action against Defendant Ping C. Shen. The complaint alleges that Plaintiff hired Defendant to represent her in a civil case regarding her late husband. Defendant allegedly failed to appear for a hearing on September 8, 2023, causing Plaintiff to lose her case. Plaintiff sues for unspecified monetary damages.

            On October 17, 2024, Defendant filed the instant demurrer to the complaint. Plaintiff filed a late opposition on November 18, 2024.

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.)

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. (See Shen Decl.)

DISCUSSION

            “The elements of a claim 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.” (Paul v. Patton (2015) 235 Cal.App.4th 1088, 1095, internal citations omitted.)

            The facts alleged are sufficient to state a claim for legal malpractice. Plaintiff has alleged that Defendant was her attorney and therefore owed her a duty of care. Plaintiff has alleged that Defendant breached his duty by failing to appear at a hearing. Plaintiff has alleged causation and damages because the failure to appear caused her to lose the case and sustain monetary damages. The precise hearing that Defendant supposedly failed to appear for, and how the failure to appear caused Plaintiff to lose the case, are factual matters for discovery. For pleading purposes, the allegations are sufficient “to put the defendant on notice about what the plaintiff is complaining and what remedies are being sought.” (See Leek v. Cooper (2011) 194 Cal.App.4th 399, 415.)

CONCLUSION

            Defendant’s demurrer is OVERRULED.