Judge: David A. Hoffer, Case: 30-2022-1251143, Date: 2022-09-19 Tentative Ruling

The Demurrer filed by moving parties defendants Law Offices of Marshall Silberberg, P.C., Marshall Silberberg, Esq., and Kimberly Carasso, Esq. (here “MPs”) as to the Second and Third Causes of Action (each a “COA”) in Plaintiffs’ Complaint is OVERRULED.

The Demurrer relies on Broadway Victoria, LLC v. Norminton, Wiita & Fuster (2017) 10 Cal.App.5th 1185 for the proposition that COAs 2 and 3 are duplicative of COA 1. But Broadway  was depublished on July 26, 2017. 

A breach of fiduciary claim and a professional negligence claim are distinct causes of action. (See Mosier v. Southern California Physicians Ins. Exchange (1998) 63 Cal.App.4th 1022, 1043-1044 [“the theory of this case was breach of fiduciary duty, a concept which is separate and distinct from traditional professional negligence but which still comprises legal malpractice”]; and Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086 [“a breach of fiduciary duty is a species of tort distinct from a cause of action for professional negligence”].)  COAs 2 and 3 here are thus not necessarily duplicative of COA 1.  Nor are COAs 2 and 3 duplicative of one another, as the latter asserts claims of intent not stated in the former. The Demurrer is therefore overruled.

In light of the ruling on the Demurrer, MPs’ Motion to Strike, to the extent directed to those same COAs, is MOOT.  Furthermore, the Motion to Strike as to the punitive damages allegations is DENIED as Plaintiffs have stated the factual basis for that demand with adequate specificity in the Complaint at ¶ 15. Whether those assertions lack merit is beyond the scope of this Motion.

Plaintiffs are ordered to give notice of this ruling.  MPs are to file their Answer to the Complaint within 10 days of this hearing.