Judge: Gail Killefer, Case: 19STCV42472, Date: 2023-12-13 Tentative Ruling
Case Number: 19STCV42472 Hearing Date: December 13, 2023 Dept: 37
HEARING DATE: Tuesday, December 12, 2023
CASE NUMBER: 19STCV42472
CASE NAME: Carl Gordon v. Felton Thomas Newell, Jr.
MOVING PARTY: Defendant Felton Thomas Newell,
Jr.
OPPOSING PARTY: None
TRIAL DATE: Not Set
PROOF OF SERVICE: OK
PROCEEDING: Demurrer with Motion to
Strike
OPPOSITION: None filed.
REPLY: None
filed.
TENTATIVE: Defendant Newell’s Demurrer is sustained
without leave to amend. Plaintiff’s request to strike and enter default against
Defendant Newell is denied.
Background
Self-represented Plaintiff Carl
Gordon (“Gordon”) alleged his former attorney Defendant Felton Thomas Newell
Jr. (“Newell”) and his law firm, The Newell Law Firm (“Newell Firm”) committed
malpractice in representing Plaintiff giving rise to multiple causes of action.
On November 21, 2019, Plaintiff
filed his Complaint which alleged six causes of action against Defendant: (1)
legal malpractice; (2) elder abuse; (3) intentional and negligent
misrepresentation; (4) intentional and negligent infliction of emotional
distress; (5) breach of fiduciary duty; and (6) unfair business practices. Plaintiff
alleges that he engaged Newell and Newell Firm for assistance on a Public
Records Act request.
On March 8, 2022, Defendant’s
Motion for Judgment on the Pleadings was granted without leave to amend as to
all causes of action except the third cause of action, and Plaintiff was
granted 30 days leave to amend only as to the third cause of action.
On March 23, 2023, the court
sustained Defendant Newell’s demurrer to the third cause of action for
intentional and negligent misrepresentation with leave to amend.
On August 28, 2023, Plaintiff
filed the operative Third Amended Complaint (“TAC”). Now Defendant Newell
demurs again to the third cause of action for intentional and negligent
misrepresentation as pled in the TAC. No opposition or reply has been filed.
I. Legal Standard
Where pleadings are defective, a party may raise the defect
by way of a demurrer. (Coyne v. Krempels (1950) 36 Cal.2d 257, 262.) A
demurrer tests the sufficiency of a pleading, and the grounds for a demurrer
must appear on the face of the pleading or from judicially noticeable matters.¿
(CCP, § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In
evaluating a demurrer, the court accepts the complainant’s properly pled facts
as true and ignores contentions, deductions, and conclusory statements. (Daar
v. Yellow Cab Co. (1976) 67 Cal.2d 695, 713; Serrano v. Priest (1971)
5 Cal.3d 584, 591.) Moreover, the court does not consider whether a plaintiff
will be able to prove the allegations or the possible difficulty in making such
proof. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d
590, 604.)
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 complainant to
show the Court that a pleading can be amended successfully. (Id.)
II. Demurrer[1]
The
sole cause of action in the TAC is Plaintiff’s original third cause of action
for intentional and negligent misrepresentation.
The
TAC alleges that Plaintiff employed Defendant Newell and the Newell Law Firm
from February 21, 2017, to December 15, 2017, to represent him in the
underlying action entitled Gordon v. Regents of the University of California,
et al. (LASC Case No. No. BS165809). (TAC ¶¶ 28, 36, 37.) Plaintiff
describes the underlying action as “California Public Records Act action” that
was straightforward” considering “the published opinion from the Court of
Appeals, Fifth Appellate District[.]” (TAC ¶¶ 15, 32.) Plaintiff alleges
Defendant Newell represented the Newell Law Firm as a firm composed of more
than one attorney rather than as a practice owed by a sole practitioner. (TAC
¶¶ 24, 25, 27, 29, 30.) The TAC alleges Defendant Newell sabotaged the
underlying action but also that Plaintiff “was the prevailing party” in the
underlying action.
(TAC
¶¶ 33, 37.)
A. Negligent
and Intentional Misrepresentation
“The
essential elements of a count for intentional misrepresentation are (1) a
misrepresentation, (2) knowledge of falsity, (3) intent to induce
reliance, (4) actual and justifiable reliance, and (5) resulting damage.
[Citations.] The essential elements of a count for negligent
misrepresentation are the same except that it does not require knowledge of
falsity but instead requires a misrepresentation of fact by a person who has no
reasonable grounds for believing it to be true. [Citations.] Each element of a
fraud count must be pleaded with particularity so as to apprise the defendant
of the specific grounds for the charge and enable the court to determine
whether there is any basis for the cause of action, although less specificity
is required if the defendant would likely have greater knowledge of the facts
than the plaintiff. [Citation.]” (Chapman v. Skype Inc. (2013) 220
Cal.App.4th 217, 230–231.)
Fraud
actions are subject to strict requirements of particularity in pleading. (Lazar
v. Superior Court (1996) 12 Cal.4th 631, 645.) A plaintiff must allege what
was said, by whom, in what manner (i.e. oral or in writing), when, and, in the
case of a corporate defendant, under what authority to bind the corporation.
(See Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25
Cal.App.4th 772, 782.)
Defendant
Newell argues that Plaintiff failed to state a claim of negligent and
intentional representation with the required particularity, as CCP § 430.10(e)
requires. Moreover, Defendant argues the
claim, which is premised on the fact that Defendant violated his professional
obligations while providing legal services, is time barred under CCP § 340.7. (Lee v. Hanley (2015)
61 Cal.4th 1225, 1236 [“Thus, while section 340.6(a) applies to claims other
than strictly professional negligence claims, it does not apply to claims that
do not depend on proof that the attorney violated a professional
obligation”].) In light of these
observations, we conclude that section 340.6(a)'s time bar applies to claims
whose merits necessarily depend on proof that an attorney violated a
professional obligation in the course of providing professional services.” (Id.
at 1236-1237.)
Here,
the TAC alleges that Newell was employed by Plaintiff until December 15, 2017,
and that he violated the California Rules of Professional Conduct by
representing himself as a law firm. (TAC ¶¶ 23, 30, 36, 37, 42, 48, 54, 57.) The court finds that the claim for negligent
and intentional misrepresentation is not adequately pled as Plaintiff fails to
state facts to show justifiable reliance due to Defendant Newell’s
misrepresentations or that Plaintiff was damaged due to Newell’s
representations about being Newell practicing in a law firm rather than a solo
practitioner and how these misrepresentations harmed Plaintiff in the
underlying action.
Moreover,
the third cause of action is barred by the statute of limitations. (CCP § 340.6.)
The court sustains Defendant’s demurrer.
Plaintiff also failed to oppose Newell’s demurrer and show that the pleadings
are capable of successful amendment. As
this is Plaintiff’s second demurrer to the claim for negligent and intentional
misrepresentation, the demurrer to the third cause of action is sustained
without leave to amend.
The
court also denies Plaintiff’s request to strike and enter default against
Defendant Newell is denied.
Conclusion
Defendant Newell’s Demurrer is
sustained without leave to amend. Plaintiff’s request to strike and enter
default against Defendant Newell is denied.