Judge: David A. Hoffer, Case: 30-2021-1230350, Date: 2022-08-08 Tentative Ruling

Petitioner JN Financial Services, LLC’s (“Petitioner”) Petition to File Complaint Under Civ. Code § 1714.10 (“Petition”) is MOOT as not subject to pre-filing requirements.

Petitioner brings its Petition pursuant to Civ. Code § 1714.10, which in relevant part states:

“(a) No cause of action against an attorney for a civil conspiracy with his or her client arising from any attempt to contest or compromise a claim or dispute, and which is based upon the attorney's representation of the client, shall be included in a complaint or other pleading unless the court enters an order allowing the pleading that includes the claim for civil conspiracy to be filed after the court determines that the party seeking to file the pleading has established that there is a reasonable probability that the party will prevail in the action. The court may allow the filing of a pleading claiming liability based upon such a civil conspiracy following the filing of a verified petition therefor accompanied by the proposed pleading and supporting affidavits stating the facts upon which the liability is based. . .

(b) Failure to obtain a court order where required by subdivision (a) shall be a defense to any action for civil conspiracy filed in violation thereof. . .

(c) This section shall not apply to a cause of action against an attorney for a civil conspiracy with his or her client, where (1) the attorney has an independent legal duty to the plaintiff, or (2) the attorney's acts go beyond the performance of a professional duty to serve the client and involve a conspiracy to violate a legal duty in furtherance of the attorney's financial gain. . .”  [Emphasis added.] (Civ. Code § 1714.10.)

Petitioner requests the court grant it permission to sue respondents Brian P. White and Daspin & Aument, LLP (“Respondents” together) under civil conspiracy based causes of action.

“Applying section 1714.10 ... requires the court to initially determine whether the pleading falls ... within the coverage of the statute[.]” [Citation.] “Once it is determined that the pleading falls within the coverage of subdivision (a) of section 1714.10, the next step is to ascertain whether the pleaded claims fall within either of the exceptions set forth in subdivision (c) of the statute.”  (Cortese v. Sherwood (2018) 26 Cal. App. 5th 445, 454.)  “Section 1714.10 was intended to weed out the harassing claim of conspiracy that is so lacking in reasonable foundation as to verge on the frivolous.”  (Rickley v. Goodfriend (2013) 212 Cal. App. 4th 1136, 1148 (“Rickley”.)

Petitioner specifically states that it is not claiming the acts of Respondents were performed in relation to a claim or dispute.  (Petition ¶ 13.)  There are no allegations in the proposed complaint that the acts of Respondents performed were to contest or compromise a claim or dispute.  Thus, Petitioner’s claims do not fall under the first requirement for such a petition under Civ. Code § 1714.10(a).  Additionally, the allegations in the proposed complaint also fall under the one of the two exceptions to the Civ. Code § 1714.10 requirement.  Specifically, Petitioners have alleged Respondents’ actions, “go beyond the performance of a professional duty to serve the client and involve a conspiracy to violate a legal duty in furtherance of the attorney's financial gain.”  (Civ. Code § 1714.10(c)(2).)  Thus, the proposed complaint does not fall within the coverage of Civ. Code § 1714.10.  Petitioner did not need to seek leave of the court to file its action against Respondents as not only are the claims not covered under the statute, but also fall under express exceptions to the statute.

Petitioner cites to Howard v. Superior Ct. (1992) 2 Cal. App. 4th 745 (“Howard”), to support its overabundance of caution in filing the present Petition.  Howard is not applicable as it analyzed the prior version of Civ. Code § 1714.10, which did not contain the “contest or compromise a claim or dispute” wording.  Civ. Code § 1714.10 was amended in 1991 to contain the new language and requirements. 

As there is no need to Petitioner to seek permission of the court to file its action, the Petition is moot.

Petitioner is free to file its proposed complaint at will.

Petitioner is ordered to give notice.