Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This is a legal malpractice action.  Plaintiff Annunziata Crupi retained Defendant Barkhordarian law firm to represent her in an employment dispute with the University of Southern California (“USC”).  (Compl. ¶ 1.)  Plaintiff alleged she had been wrongfully terminated and also claimed whistleblower retaliation and discrimination.  (Id.) 

Plaintiff alleges the following negligent acts by Defendant in connection with its representation of Plaintiff in the underlying employment case: 

First, Plaintiff claims Defendant, without her consent, filed an arbitration demand in JAMS without properly explaining to Plaintiff the difference between arbitration and court, and without first attempting to file the case in court.  (Id. ¶ 3.)  Plaintiff further alleges that the arbitration agreement was not enforceable and had been repudiated by USC and therefore, the lawsuit should and could have been filed in court, instead of arbitration.  (Id. ¶4.) 

Second, Plaintiff alleges Defendant set the amount in controversy at $25,000, an arbitrary amount.  Defendant allegedly failed to properly investigate the amount of damages, failing to request any information from Plaintiff as to the extent of her claimed damages.  (Id. ¶5.) 

Third, Plaintiff alleges Defendant included in the arbitration demand only two of the claims that could have been filed, included an incorrect narrative in support of the claims, and unnecessarily disclosed “dangerously confidential information”.  (Id. ¶6.) 

Fourth, Plaintiff alleges that once the arbitration demand was filed, Defendant concealed facts, documents and deadlines from Plaintiff, depriving Plaintiff of the right to dismiss the arbitration demand before the arbitrator was appointed and often replied to Plaintiff’s questions in unclear, cryptic or deflecting ways.  (Id. ¶7.)  Defendant allegedly failed to disclose that USC had not responded to the arbitration demand on time and was not meeting the terms of the arbitration agreement, constituting a formal repudiation of the arbitration agreement which would have allowed Plaintiff to file her claims in court.  (Id. ¶¶8-10.)   

Fifth, Defendant allegedly forced Plaintiff to engage in settlement discussions, during which Defendant provided unilateral discovery to USC, prejudicing Plaintiff.  (Id. ¶12.)  Plaintiff alleges that Defendant asked Plaintiff to sign a settlement agreement that would have deprived Plaintiff of rightfully acquired intellectual property, would constitute potential self-incrimination by Plaintiff, would damage Plaintiff’s career and reputation, and would overall not be in Plaintiff’s best interests but would instead benefit USC.  (Id. ¶13.) 

Sixth, when Plaintiff refused to sign the settlement agreement, Defendant requested the payment of $33,630.90 of retainer fees, then discounted to $11,505.80, corresponding to the amount the law firm would have received if Plaintiff had signed the settlement.  Plaintiff claims Defendant “extorted” her to pay the amount, and when she asked to be reimbursed for such fees, the law firm refused.  (Id. ¶¶ 15-16.)  Plaintiff also signed a release of the law firm but claims that at the time of signing the release, she was unaware of Defendant’s alleged malpractice.  (Id. ¶ 19.)   

Seventh, Defendant failed to disclose that its lawyers were associated with USC, which constituted a conflict of interest.  (Id. ¶40.) 

Eighth, Defendant failed to request right-to-sue letters from the EEOC, allowing the statute of limitations to file a complaint with the EEOC to expire.  (Id. ¶45.) 

The operative complaint alleges four claims for (1) legal malpractice, (2) breach of duty, (3) fee dispute, and (4) breach of contract.  Plaintiff seeks “financial damage, social status damage, loss of life enjoyment, physical and mental health damage, emotional damage, possible self-incrimination, possible future conviction [and] possible death.”  (Id. ¶34.) 

This hearing is on Defendant’s demurrer and motion to strike the complaint.  Defendant argues that (1) the legal malpractice claim is subject to demurrer because Defendant’s claimed legal malpractice has not been specifically alleged and the facts subject to judicial notice show Plaintiff’s wrongful termination claim is not in arbitration; (2) the claims for breach of duty and fee dispute are subject to demurrer because they are duplicative of the causes of action for legal malpractice and breach of contract; (3) Plaintiff’s request for attorneys’ fees should be stricken because Plaintiff has no statutory or contractual bases to recover attorneys’ fees; (4) Plaintiff’s claim for emotional damages should be stricken because such damages cannot be recovered in a legal malpractice action; (5) Plaintiff’s claim for punitive damages should be stricken because she has alleged nothing more than a garden variety legal malpractice claim, and (6) Plaintiff has no right to her claim for injunctive relief (requesting the Court to disbar Defendant) because such relief is not recoverable in any civil action.   

There was no opposition filed as of the posting of this tentative ruling.  Instead, Plaintiff filed a “request for continuance and late filing.”  Plaintiff claims she was not served with the demurrer and motion to strike.   

LEGAL STANDARD 

“[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 Ins. 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 Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc. § 436, subd. (a).)  The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. § 436, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. § 437.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  

MEET AND CONFER 

Code Civ. Proc. §§ 430.41 and 435.5 requires that before the filing of a demurrer or motion to strike, the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer or motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike.  (Code Civ. Proc. §§ 430.41(a), 435.5(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. §§ 430.41(a)(2), 435.5(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. §§ 430.41(a)(3), 435.5(a)(3).)  Defendant submits the Declaration of Howard Smith which attests the parties met and conferred by videoconference, but the conference took place on March 21, 2024, less than five days before the demurrer and motion to strike was filed (on March 25, 2024).  Notwithstanding, the Court cannot overrule a demurrer or deny a motion to strike based on an insufficient meet and confer.  (Code Civ. Proc. §§430.41(a)(4) and 435.5(a)(4).) 

REQUEST FOR JUDICIAL NOTICE 

Defendant requests judicial notice of the following documents: 

(1) a February 21, 2024 tentative ruling regarding motion to remand and denying motion to compel arbitration in Annunziata Crupi v. University of Southern California, et al., pending in the United States District Court for the Central District of California, Case No. 2:23-cv-05077-GW; 

(2) a February 22, 2024 final ruling regarding motion to remand and denying motion to compel arbitration in Annunziata Crupi v. University of Southern California, et al., pending in the United States District Court for the Central District of California, Case No. 2:23-cv-05077-GW, and   

(3) a February 29, 2024 case status report filed in Annunziata Crupi v. University of Southern California, et al., pending in the Los Angeles Superior Court, Case No. 23STCV11353. 

Defendant’s request for judicial notice is not made in a separate document in violation of California Rules of Court, Rule 3.113. (Cal. Rules Ct., 3.1113(1) (“Any request for judicial noticemust be made in a separate document listing the specific items for which notice is requested….”).)  Accordingly, the Court denies the request.   

REQUEST FOR LATE FILING 

Plaintiff requests leave to file a late opposition to the demurrer.  Plaintiff claims she was not served with the demurrer despite the proof of service showing the demurrer was served on her by U.S. mail and email.  Plaintiff’s claims are not supported by a declaration under penalty of perjury.  Plaintiff also fails to specify the length of continuance she would need to file an opposition.  Her opposition is now 9 days overdue (it was due on April 11, 2024), and she does not include an opposition she would file if granted a continuance.  For all of these reasons, the Court denies her request for a late filing.           

DISCUSSION 

Legal Malpractice Claim 

Defendant demurs to the legal malpractice claim on two grounds: (1) the claimed legal malpractice has not been specifically alleged, and (2) the claim is contradicted by facts subject to judicial notice.  Neither ground has merit.   

As to the first ground, Defendant never explains what is lacking in the Complaint.  The Complaint specifies in detail the alleged wrongdoing by Defendant (as summarized in the background section of this Order).  There is no ambiguity or uncertainty in the allegations.   

Regardless, a demurrer for uncertainty is disfavored and strictly construed because “ambiguities can reasonably be clarified under modern rules of discovery.”  (Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal. App. 4th 1125, 1135.)  Moreover, special demurrers will be overruled where “the facts alleged in the complaint are presumptively within the knowledge of the demurring party or ascertainable by invoking discovery procedures… .” (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)  Furthermore, to sustain a demurrer for uncertainty, the complaint must be so vague or ambiguous that the defendant cannot reasonably respond. (Id. at 614.)  Given the details in the Complaint (as summarized above), it cannot be seriously argued the Complaint is so vague and ambiguous that Defendant cannot respond.   

As to the second ground, the Court has denied Defendant’s request for judicial notice, and therefore, the argument is not supported by any judicially noticeable facts.  But even if the Court took judicial notice of the fact that Plaintiff’s complaint against USC is now pending in Superior Court rather than in an arbitration, it does not mean there was no prior arbitration proceeding or that Plaintiff was not harmed by Defendant’s alleged wrongdoing relating to the arbitration proceeding.  There are also allegations in the Complaint that go beyond Defendant’s allegedly negligent decision to pursue the case in arbitration, including, for example, Defendant’s alleged attempts to coerce Plaintiff to sign a settlement agreement that was not in Plaintiff’s best interests, or purported failure to timely request right to sue letters from the EEOC, or failing to disclose its attorneys were allegedly associated with USC.   

Accordingly, the Court overrules the demurrer to Plaintiff’s legal malpractice claim. 

Fee Dispute/Breach of Duty Claims 

Defendant argues that Plaintiff’s claim for breach of duty is duplicative of its claim for legal malpractice and Plaintiff’s claim for fee dispute is duplicative of the breach of contract claim.  The Court agrees. 

A demurrer will be granted as to a cause of action that adds no additional facts or theories of recovery.  (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 (“a cause of action for breach of governing documents [that] appear[ed] to be duplicative of [a] cause of action for breach of fiduciary duty” is “recognized ... as a basis for sustaining a demurrer”); Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501 (finding demurrer was properly sustained without leave to amend as to cause of action that contained allegations of other claims and “thus add[ed] nothing to the complaint by way of fact or theory of recovery”); see also Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135 (demurrer should have been sustained as to duplicative causes of action).) 

Here, the facts supporting Plaintiff’s claim for breach of duty are indistinguishable from the facts supporting Plaintiff’s claim for legal malpractice.  There is also no difference in the theory of recovery as a legal malpractice claim requires a breach of duty.  (Kumarperu v. Feldsted (2015) 237 Cal.App.4th 60, 66 (to state a cause of action for legal malpractice, a plaintiff must lead the duty of the attorney to use such skill, prudence and diligence as members of his or her profession commonly possess and exercise and a breach of that duty).)      

Likewise, Plaintiff’s claim for fee dispute and breach of contract are based on the same facts, i.e., Defendant’s alleged extortion of fees.  They seek the same relief, namely, full reimbursement of the fees paid by Plaintiff to Defendant.       

Accordingly, the Court sustains the demurrer to Plaintiff’s claims for breach of duty and fee dispute.   

Attorneys’ Fees 

Defendant moves to strike Plaintiff’s prayer for attorneys’ fees as there is no statutory or contractual basis for the claim.  The Court agrees. 

Attorneys’ fees are only recoverable when authorized by contract, statute or law.  (Code Civ. Proc. §1033.5(a)(10)(A), (B), (C).)  The Complaint has not identified any contract, statute or law that would entitle Plaintiff to attorneys’ fees.  Accordingly, the Court grants Defendant’s motion to strike Plaintiff’s prayer for attorneys’ fees. 

Emotional Distress Damages 

Defendant argues that emotional distress damages are not generally recoverable in a legal malpractice claim.  The Court agrees.   

Emotional distress damages ordinarily are not recoverable in a legal malpractice action if the representation concerned primarily the client’s economic interests and the emotional injury derived from an economic loss.  (Camenisch v. Superior Court (1996) 44 Cal.App.4th 1689, 1697 ; Merenda v. Superior Court (1992) 3 Cal.App.4th 1, 8–11, disapproved on another point in Ferguson v. Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037, 1053; see also Erlich v. Menezes (1999) 21 Cal.4th 543, 556.)  

California courts have explained that an attorney’s duty to his or her client in civil litigation ordinarily concerns the client’s economic interests and does not extend to protection against emotional injury.  (Pleasant v. Celli (1993) 18 Cal.App.4th 841, 853–854, disapproved on another point in Adams v. Paul (1995) 11 Cal.4th 583, 591, fn. 4; Merenda, 3 Cal.App.4th at p. 10; see also Friedman v. Merck & Co. (2003) 107 Cal.App.4th 454, 472–473.)   If the representation concerns primarily economic interests, “the foreseeability of serious emotional harm to the client and the degree of certainty that the client suffered such injury by loss of an economic claim are tenuous.” (Merenda, 3 Cal.App.4th at 10; accord, Erlich, 21 Cal.4th at 556 (quoting Merenda).) 

Here, Defendant’s representation of Plaintiff in the underlying employment action concerned Plaintiff’s economic interests, i.e., a claim for damages against USC.  It is not foreseeable that Plaintiff would suffer emotional distress as a result of Defendant’s allegedly negligent handling of her lawsuit.  Accordingly, the Court grants Defendant’s motion to strike Plaintiff’s request for emotional distress damages.    

Punitive Damages 

Defendant argues that this is a “garden variety legal malpractice claim” for which punitive damages are not recoverable.  The Court agrees. 

Civil Code § 3294(a) authorizes the recovery of punitive damages in non-contract cases “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.  

(1) ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. 

 

(2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. 

 

(3) ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the party of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”  

Civ. Code § 3294(c)(1)-(3). 

“Despicable conduct” that rises to the level of supporting an award of punitive damages against a defendant is that which is “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people” and has been described as “conduct…having the character of outrage frequently associated with a crime.”  (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)   

“Conscious disregard” means “the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.”  (Hoch v. Allied-Signal, Inc. (1994) 25 Cal.App.4th 1269, 1287.)  To be liable for punitive damages, the defendant must “have actual knowledge of the risk of harm it is creating, and in the face of the knowledge, fail to take steps it knows will reduce or eliminate the risk of harm.”  (Ehrhardt v. Brunswick, Inc. (1986) 186 Cal.App.3d 734, 742.) 

Punitive damages are appropriate if the defendant’s acts are reprehensible, fraudulent or in blatant violation of law or policy.  (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1051.)  “The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages.”  (Tomaselli, 25 Cal.App.4th at 1287.)  “Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.”  (Id.)  

Here, taken together, the facts alleged in the Complaint only amount to gross negligence or recklessness, not malice, oppression or fraud.  Gross negligence and reckless conduct cannot support a claim for punitive damages.  (Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 87 (“Inasmuch as Civil Code Section 3294 requires as a prerequisite to the recovery of punitive damages that the defendant ‘has been guilty of oppression, fraud, or malice,’ the cases have uniformly recognized that proof of negligence, even gross negligence, or recklessness is insufficient to warrant an award of punitive damages”; Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 285-286 (“Conduct classified only as unintentional carelessness, while it may constitute negligence or even gross negligence, will not support an award of punitive damages.”); G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 32 (“When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.”).)  

Accordingly, the Court grants the motion to strike Plaintiff’s claim for punitive damages. 

Injunctive Relief 

Defendant argues that Plaintiff’s claim for injunctive relief, seeking to disbar Defendant, is not recoverable in this action.  The Court agrees. 

Only the Supreme Court has the authority to disbar an attorney.  (Cal. Bus. & Prof. Code § 6100.)  Accordingly, the Court grants the motion to strike Plaintiff’s request for injunctive relief.   

CONCLUSION 

Based on the foregoing, the Court SUSTAINS IN PART and OVERRULES IN PART Defendant’s demurrer without leave to amend and GRANTS the motion to strike without leave to amend.  As there was no opposition, Plaintiff has not carried her burden to show she could successfully amend her Complaint, and accordingly, the Court does not grant Plaintiff leave to amend.       

 

IT IS SO ORDERED. 

 

DATED:  April 24, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court