Judge: Frank M. Tavelman, Case: 22BBCV00743, Date: 2023-10-27 Tentative Ruling

Case Number: 22BBCV00743    Hearing Date: October 27, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER AND MOTION TO STRIKE

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS:

On October 12, 2022, Arnon Raphael, individually and as trustee of the Arnon and Terry Raphael Trust (“Plaintiff”) filed suit against Scott Amin Sheikh and The Sheikh Law Firm APC (collectively “Defendants”) alleging Defendants failed to adequately represent him in prior legal matters. The First Amended Complaint (“FAC”) contains causes of action for (1) Negligence (Legal Malpractice), (2) Breach of Fiduciary Duty, and (3) Breach of Contract.

On June 2, 2023, the Court sustained a demurrer to each cause of action in Plaintiff’s Complaint with leave to amend. On June 22, 2023, Plaintiff filed his Second Amended Complaint (“SAC”) containing the same causes of action, albeit with revised allegations. Defendants now demur only to the third cause of action in the SAC. Defendants also move to strike paragraph 46 of the SAC, as well as the second prayer for relief. Plaintiff opposes the demurrer and motion to strike.

ANALYSIS:

I.            LEGAL STANDARD

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Id.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at 318.)

Pursuant to Code of Civil Procedure (“C.C.P.”) §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See C.C.P. §§ 435, 436, and 437.) The proper procedure to attack false allegations in a pleading is a motion to strike. (C.C.P. § 436(a).) In granting a motion to strike made under C.C.P. § 435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (C.C.P. § 436(a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (C.C.P. § 431.10.)

The court may also “[s]trike out 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.” (C.C.P. § 436 (b).)

II.            MEET AND CONFER

C.C.P. §§ 430.41(a) and 435.5(a) require that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer and/or motion to strike. Upon review the Court finds the meet and confer requirements were met. (Sheikh Decl.)

III.            MERITS

Demurrer

Defendants demur to the third cause of action on grounds that it does not properly set forth an alternative theory to Plaintiff’s case of action for breach of contract. Defendants demurrer arguing (1) the cause of action states insufficient facts and (2) the cause of action is uncertain. The Court notes that Defendants’ papers contain no arguments speaking to the factual sufficiency of the cause of action, and instead focus entirely on the certainty grounds. Defendants argue that Plaintiff cannot simultaneously plead a breach of contract action and their legal malpractice action because both are premised on the same operative facts. The relevant facts are as follows:

On or about February 18, 2024, Plaintiff entered into a written agreement with Defendants in connection with various lease related disputes (SAC ¶ 37.) The written agreement explicitly provided that the representation did not include litigation services and that any such litigation would need to be governed by a separate agreement. (SAC ¶ 38.) Sometime in 2015 it became apparent litigation was needed and the parties entered into an oral agreement to modify the scope of the written contract to include litigation services. (SAC ¶ 40.) Alternatively, sometime in 2015 the parties entered into an entirely separate contract in which Defendants agreed to represent Plaintiff in litigation of the property dispute. (SAC ¶ 47.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)  Further, a plaintiff is permitted to plead alternative theories of liability such that their complaint would survive demurrer. (Adams v. Paul (1995) 11 Cal.4th 583, 593 [“a party may plead in the alternative and may make inconsistent allegations”]; see also Gebert v. Yank (1985) 172 Cal.App.3d 544, 554 [“Pleading of alternative theories of relief on the same set of facts is, of course, quite proper…”].)

Plaintiff incorporates the facts of the written agreement into his cause of action for breach of contract. (SAC ¶ 36.) Defendants argue this incorporation renders the cause of action at odds with the causes of action for Professional Negligence and Breach of Fiduciary Duty. Defendants argue the third cause of action fails to “separately and coherently plead inconsistent facts and causes of action”. (Dem. p. 7.)

The Court finds that Plaintiff’s allegations in the third cause of action are clear. Plaintiff pleads that the parties either entered into an oral modification of their written retainer agreement or entered a separate oral contract covering litigation services. Plaintiff alleges Defendants breached both the agreement and the oral modification or, in the alternative, Defendants breached both the written and oral contracts. Plaintiff’s allegations are not so unclear that Defendants cannot respond to them, nor are they so unclear that any factual issues could not be resolved in discovery. It may be these factual allegations could have been structured differently to present a more readable complaint, however such arguments are not grounds for demurrer. 

Defendants next argue that the cause of action for breach of contract is duplicative of the cause of action for Professional Negligence. Defendants argue the cause of action for breach of contract adds nothing to the SAC in the way of theory of recovery or liability. The Court disagrees.

A demurrer may be sustained when a cause of action is duplicative of another cause of action and “thus adds nothing to the complaint by way of fact or theory of recovery.” (Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501.) There is a split among the courts as to whether redundancy of a cause of action is a ground on which a demurrer may be sustained. (Compare Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858 [holding redundancy is not a proper ground for demurrer] to Rodrigues supra, 87 Cal.App.3d at 501 [holding demurrer may be sustained on grounds of redundancy].)

The Court finds Plaintiff’s Breach of Contract and Professional Negligence causes of action, while overlapping in some factual regards, have a different theory of recovery as contract and tort causes of action. Further, Plaintiff’s cause of action for Professional Negligence contains allegations of Defendants’ failure to provide adequate legal expertise in addition to failure to provide services under the retainer agreement. If Plaintiff is unable to show the elements required to prove Professional Negligence, it should not be that he is left without a remedy for the alleged breach of the retainer agreement.

Accordingly, the demurrer to the third cause of action is OVERRULED.

Motion to Strike

Defendants move to strike paragraph 46 of the SAC, as well as the second prayer for relief. Paragraph 46 concerns consequential damages for Plaintiff’s breach of contract cause of action. The second prayer for relief concerns the recovery of attorney’s fees.

Defendants argue that because the written agreement between the parties did not include litigation services, there can be no consequential damages for failure to adequately perform such services. As previously discussed, the Court finds Plaintiff has adequately pled his breach of contract claim. To the extent that Plaintiff has adequately pled his claim for breach, he is entitled to seek consequential damages related to that breach.

Further, the Court finds Plaintiff is entitled to pursue attorneys’ fees. “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.” (C.C.P. § 1717(a).) Here, Plaintiff alleges the initial contract contained a clause providing for attorneys’ fees. (SAC ¶ 38, subpara. 11.) The Court, having found Plaintiff adequately pled breach of this contract, also finds that Plaintiff is entitled to plead damages in the form of attorneys’ fees.

Accordingly, the motion to strike is DENIED.

RULING:

In the event the parties request a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER

Scott Amin Sheikh and The Sheikh Law Firm APC’s Demurrer and Motion to Strike came on regularly for hearing on October 27, 2023, with appearances/submissions as noted in the minute order for said hearing, and the Court, being fully advised in the premises, did then and there rule as follows: 

THE DEMURRER IS OVERRULED.

THE MOTION TO STRIKE IS DENIED.

DEFENDANTS ARE TO FILE A RESPONSIVE PLEADING WITHIN 20 DAYS.

CASE MANAGEMENT CONFERENCE IS CONTINUED TO FEBRUARY 6, 2024, AT 9:00 A.M.

UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFF TO GIVE NOTICE.

IT IS SO ORDERED.

DATE:  October 27, 2023                              

_______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles