Judge: Elaine Lu, Case: 22STCV12361, Date: 2022-10-20 Tentative Ruling

Case Number: 22STCV12361    Hearing Date: October 20, 2022    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

On April 12, 2022, Plaintiff Yehuda Fulda (“Plaintiff”) filed the instant legal malpractice action against Defendant Donna Boris dba Boris and Associates (“Defendant”).  The complaint asserts seven causes of action for (1) Breach of Contract, (2) Legal Malpractice, (3) Breach of Fiduciary Duty, (4) Conversion, (5) Breach of Implied Covenant of Good Faith and Fair Dealing, (6) Promissory Estoppel, and (7) Intentional Infliction of Emotional Distress. 

On July 20, 2022, Defendants filed the instant demurrer to the seventh cause of action of the complaint.  On September 30, 2022, Plaintiff filed an opposition.  No reply has been filed.

Allegations of the Operative Complaint

The Complaint alleges in relevant part that:

            On January 17, 2019, Plaintiff retained Defendant to handle the appeal of Channa Grundman vs. PayPal, Santa Clara Superior Court; Case No.: 17CV311182; Sixth District Court Appeal (H046729).  (Complaint ¶ 6.)  “Specifically, Plaintiff sought to obtain appellate review of pleadings, orders or Judgment naming him as a party to the action when in fact he had not been a party or participant in the underlying arbitration which was the subject of the suit.”  (Ibid.)

            “The agreement with Defendant provided terms for legal services at the rate of $95.00 per hour, with a $7,500.00 retainer, and a cap at $7,500.00. The payments from the Plaintiff to the Defendant in accordance with the contract were 8,500.00, which included a $1,000.00 filing fee.”  (Id. ¶ 7.)  Plaintiff repeatedly contacted Defendant about the appeal which Defendant responded to noting delays due to family members in hospice and due to the COVID-19 Pandemic.  (Id. ¶¶ 8-20.) 

            “Defendant failed, despite numerous and constant requests by Plaintiff to communicate, confer, consult, advise and use information from Plaintiff to represent Plaintiff in the matters described. Due to her action and inaction, Plaintiff who was never part of the underlying arbitration proceeding, was arbitrarily joined in a judgment and named as a defendant and made liable for the award $48,484.17.”  (Id. ¶ 21.)  “Defendant never properly filed the . . . Appeal and failed to post the required transcript fees. (Santa Clara Superior Court; Case No.: 17CV311182; Sixth District Court Appeal (H046729)) despite numerous warnings and extensions of time to post fees and file the Brief on Appeal from the Second District Court of Appeal.”  (Id. ¶ 22.) 

Request for Judicial Notice

Defendant requests judicial notice of the following:

A.    The Petition to Vacate Arbitration Award; Complaint for Damages [for] Malicious Prosecution, Abuse of Process in the underlying case Yehuda Fulda and Channah Grundman v. Paypal, Inc. (Santa Superior Court Case No. 17CV311182)

As the Court may take judicial notice of court records (see Evid. Code, § 452(d)), Defendant’s request is granted. However, the Court will not take judicial notice of the truth of the matters asserted in the court documents. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

Legal Standard

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. (Blank v. Kirwan (1985) 39 Cal 3d 311, 318.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

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 Dep’t of Water & Power (2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.)  “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.) 

A special demurrer for uncertainty, Code of Civil Procedure §430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her.  (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)  Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.) 

Meet and Confer Requirement

Code of Civil Procedure section 430.41, subdivision (a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring 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.” The parties are to meet and confer at least five days before the date the responsive pleading is due and if they are unable to meet the demurring party shall be granted an automatic 30-day extension.  (CCP § 430.41(a)(2).)  The demurring party must also file and serve a declaration detailing the meet and confer efforts.  (Id.¿at (a)(3).)¿ If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading.  (Id.¿at (a).) 

Defendant has fulfilled the meet and confer requirement.  (Boris Decl. ¶ 2.) 

Discussion

Seventh Cause of Action: Intentional Infliction of Emotional Distress

Defendant asserts that the seventh cause of action for intentional infliction of emotional distress fails because (1) Plaintiff has not alleged extreme and outrageous conduct, and (2) emotional distress damages are not recoverable in the instant action.

“A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’”  (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–1051.)   With regard to the first element, IIED “calls for intentional, or at least reckless conduct—conduct intended to inflict injury or engaged in with the realization that injury will result.”  (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 210.) 

For “[c]onduct to be outrageous[, it] must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.”  (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.)  “[W]hether conduct is outrageous is ‘usually a question of fact’ … [however] many cases have dismissed intentional infliction of emotional distress cases on demurrer, concluding that the facts alleged do not amount to outrageous conduct as a matter of law.” (Bock v. Hansen (2014) 225 Cal.App.4th 215, 235, [internal citations omitted].)  “‘Behavior may be considered outrageous if a defendant (1) abuses a relation or position that gives him power to damage the plaintiff’s interests; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress. . . .’” (Molko v. Holy Spirit Ass’n (1988) 46 Cal.3d 1092, 1122, superseded by statute as noted in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn. 19 [internal citation omitted].)  “[T]he requisite emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry.”  (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.) 

However, “the primary interest protected in legal malpractice actions is economic and ‘serious emotional distress is not an inevitable consequence of the loss of money....’”  (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1038.)  “Whether recovery of damages for emotional distress attributable to legal malpractice should be allowed must be considered in light of the primary interest protected by the duty to avoid malpractice. [Citation.] Where the interest of the client is economic, serious emotional distress is not an inevitable consequence of the loss of money and, as noted, the precedents run strongly against recovery.”  (Merenda v. Superior Court (1992) 3 Cal.App.4th 1, 10 disapproved of on other grounds by Ferguson v. Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037.)

            Here, the complaint alleges only legal malpractice and a primary interested that is economic.  (Complaint ¶¶ 6-23.)  The only damage that Plaintiff asserts from the underlying action is at most the judgment of $48,484.17 against Plaintiff.  (RJN Exh. A.)  The complaint does not suggest that Defendant was informed of any unusual susceptibility on Plaintiff’s part to emotional injury if the underlying action was unsuccessful.  Further, the only moral blame attached to Defendant’s alleged conduct is ordinary negligence.  Accordingly, there is no basis for emotional damages in the instant action.

            In opposition, Plaintiff does not dispute that the seventh cause of action is improper.  Rather, Plaintiff asserts that Plaintiff filed a motion to amend the complaint on September 21, 2022 set for April 6, 2023 that omits the seventh cause of action.  However, the motion to amend was unnecessary.  Plaintiff is entitled to amend at least once without leave of court before the answer or demurrer is filed; or if a defendant files a demurrer, no later than when the opposition is due on the hearing on the demurrer.  (CCP § 472(a).)  Because Plaintiff filed the motion for leave to amend on September 21, 2022 – before the opposition to the instant demurrer was due -- Plaintiff could have filed the First Amended Complaint instead of the opposition.

            Accordingly, Defendant’s demurrer to the seventh cause of action is SUSTAINED.

Leave to Amend

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Goodman v. Kennedy, supra, 18 Cal.3d at p. 348; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) 

Here, there does not appear to be a reasonable possibility of successful amendment as to the seventh cause of action for intentional infliction of emotional distress.  However, Plaintiff has attached a proposed amended complaint omitting the seventh cause of action.  Accordingly, the Court finds that it is proper to grant Plaintiff leave to amend the complaint to file the proposed First Amended Complaint, which omits the seventh cause of action.

CONCLUSION AND ORDER

            Based on the foregoing, Defendant Donna Boris dba Boris and Associates’ demurrer to the seventh cause of action of the Complaint is SUSTAINED WITH LEAVE.

            Plaintiff may file and serve the proposed First Amended Complaint (omitting the seventh cause of action) within 5 days of notice of this order.

            As leave to amend has been granted, the motion for leave to amend the complaint set for April 6, 2023 is taken off calendar as MOOT.

            The case management conference is continued to December 1, 2022 at 8:30 am.

            Moving Party is to give notice and file proof of service of such.

DATED:  October 20, 2022                                                   _____________________________

                                                                       Elaine Lu

                                                                        Judge of the Superior Court