Superior Court of California 

County of Los Angeles – West District 

Beverly Hills Courthouse / Department 205 

 

 

 

BACKGROUND 

  This case arises from an attorney-client dispute.  Plaintiff Young Chow Dai sues her former attorneys, Defendants Feldman & Rothstein PC, Anthony Ranieri, Marsha Mao, The Law Office of Mauro Fiore and Krystale L. Rosal.  She alleges they engaged in wrongdoing in connection with a $50,000 settlement she received from the City of Santa Monica for a personal injury action arising out of a bus accident.   

Plaintiff filed a prior complaint against Defendants in the Los Angeles Superior Court, Department 25.  As with the present complaint, the prior complaint alleged wrongdoing relating to a $50,000 settlement in connection with a bus accident involving Plaintiff.  (Ranieri Decl. ¶2.)   

On November 28, 2022, following a long history of litigation misconduct, including Plaintiff’s forgery of opposing counsel’s and the Court’s names on filed documents, the Court in Department 25 dismissed the action with prejudice.  (Id. ¶3.)  No timely appeal was taken.  Plaintiff then filed six post-judgment motions, all of which were denied.  (Id. ¶3.)   

 

On April 8, 2024, the Court declared Plaintiff to be a vexatious litigant.  (Id. ¶6.)  The current lawsuit before the Court was filed on February 16, 2024, before the April 8 order declaring Plaintiff a vexatious litigant.  (Id. ¶5.) 

This hearing is on Defendant Anthony Ranieri’s (“Moving Defendant’s”) demurrer.  Moving Defendant argues that (1) this action is barred by the doctrine of res judicata; (2) the Complaint is time-barred; (3) Plaintiff has not sufficiently alleged fraud; (4) Plaintiff fails to allege whether the contract sued upon is written or oral, fails to set forth the terms of the contract or attach a copy of the alleged contract, and fails to allege breach of a contract or how that breach caused the damages claimed; (5) Plaintiff fails to allege that her attorneys “stole” property belonging to her; and (6) Plaintiff’s claim for declaratory relief lacks merit because there are no allegations of a pending contractual relationship or future performance alleged to be due under the contract sued upon.   

After the demurrer was filed, Plaintiff filed a short form third amended complaint (“TAC”).  Plaintiff was not given leave to file the third amended complaint, and therefore, the Court disregards the TAC, which therefore does not moot the demurrer.   

LEGAL STANDARD 

A demurrer to a complaint may be general or special.¿ A general demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).)¿ A special demurrer challenges other defects in the complaint, including whether a pleading is uncertain. (Code Civ. Proc. § 430.10, subd. (f).)¿ The term uncertain means “ambiguous and unintelligible.”¿ (Id.)¿ A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond, i.e., the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿ 

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.)  

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 requires that before the filing of a demurrer, the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  (Code Civ. Proc. § 430.41(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).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. § 430.41(a)(3).)   

Moving Defendant submits the Declaration of Anthony Ranieri which states counsel tried calling Plaintiff twice to meet and confer on the issues raised in the demurrer, but the phone number on her pleadings was disconnected.  Ranieri then sent an email setting forth the reasons stated in his demurrer, but no response was received.  This satisfies the meet and confer requirements of § 430.41.   

 

REQUEST FOR JUDICIAL NOTICE 

Moving Defendant requests judicial notice of the court’s file in Dai v. Feldman & Rothstein, LASC No. 18STCV010154.  The Court denies the request.  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., rule 3.1113(l)¿(“Any¿request for judicial notice must be made in a¿separate document listing the specific items for which notice is requested….”).)  Moreover, the request that the Court take judicial notice of the entire file in Case No. 18STCV010154 does not sufficiently identify the specific items for which notice is requested.     

JOINDER 

Defendants Mauro Fiore Jr. APC (erroneously sued as The Law Office of Mauro Fiore) and Krystale Rosal join in the demurrer filed by Moving Defendant.   

DISCUSSION 

Moving Defendant argues that all of Plaintiff’s claims are time-barred.  The Court agrees. 

The applicable statute of limitations for each of Plaintiff’s claims are: (1) three years for fraud (Code Civ. Proc. § 338(d)); (2) one year for any action against an attorney for wrongful act or omission, other than fraud (Code Civ. Proc. § 340.6); (3) three years for a violation of Penal Code §496 (Code Civ. Proc. 338(c)); (4) four years for breach of written contract (Code Civ. Proc. §337); (5) two years for breach of oral contract (Code Civ. Proc. §339); and (6) three years for a claim of conversion (Code Civ. Proc. § 338(c).)  

The transaction that is the basis for Plaintiff’s complaint is the settlement of her personal injury claim against Santa Monica occurring on August 7, 2017.  This lawsuit was filed on February 16, 2024, more than 6 years after the transaction Plaintiff alleges is the basis for her case and more than 2 years after the longest applicable limitations period expired.  The complaint is untimely on its face.   

Plaintiff’s Opposition, in addition to violating the Court rule against single-spacing (California Rules of Court, rule 2.108), fails to address Defendants’ statute of limitations argument.  Instead, the Opposition focuses on an argument not made anywhere in the demurrer, relating to whether or not Defendants were properly served.  Defendants’ argument that the Complaint is time-barred is, therefore, unopposed,      

Given the foregoing, the Court sustains the demurrer without leave to amend and declines to consider other arguments raised by Moving Defendant as to why the Complaint should be dismissed.    

CONCLUSION 

Based on the foregoing, the Court SUSTAINS the demurrer without leave to amend.   

 

IT IS SO ORDERED. 

 

DATED:  November 20, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court