Judge Gail Killefer, Case 22STCV32851 2023-05-23 Tentative Ruling

MOTION: Defendant’s Demurrer to the First Amended Complaint; Motion to Strike Portions of the First Amended Complaint

TENTATIVE: Defendant’s demurrer is sustained in its entirety. Defendant’s motion to strike is therefore moot. Plaintiff is given 20 days leave to amend from this date. Defendant is to give notice.

Background

This action arises out of the representation of Joseph L. Shalant ("Plaintiff") by David H. Pierce ("Defendant") in the appeal of the underlying case of Joseph Shalant v. Robert Mackston, LASC SC116968 ("Mackston") in March 2020. The Mackston case was filed on May 8, 2012 and proceeded to a jury trial on October 29, 2019. Mr. Shalant represented himself in pro per at trial. The jury awarded no damages to Plaintiff, the verdict was entered on November 11, 2019, and Judgment was filed on February 27, 2020.

Mr. Shalant chose to file a notice of appeal. When the Court of Appeal denied his request for a prefiling order due to his vexatious litigant status, he sought appellate counsel and found Mr. Pierce through Legal Match. Although there is disagreement as to what Mr. Shalant told Mr. Pierce about his vexatious litigant status, the parties agreed that Mr. Pierce would represent Mr. Shalant on a limited basis, with Mr. Shalant performing most of the work. On March 9, 2020, Mr. Pierce provided Mr. Shalant with a fee agreement and Mr. Shalant paid a $2500 deposit. Mr. Pierce filed a notice of appeal in the Mackston appeal (8305061) on March 16, 2020.

On March 27, 2020, Mr. Pierce advised Mr. Shalant that he would no longer represent Mr. Shalant in the underlying matter. On March 31, 2020, Mr. Pierce advised the Los Angeles Superior Court that he would no longer represent Mr. Shalant, and, on April 1, 2020, Mr. Pierce advised the Court of Appeal that he would no longer represent Mr. Shalant in the appeal process.

After much discussion, the parties reached a stipulated agreement whereby they filed a Substitution of Attorney in the appellate action on April 6, 2020, and Mr. Pierce returned the $2,500 deposit. Mr. Shalant never engaged new counsel for his appeal. On December 2, 2021, the Court of Appeal advised counsel that based on Mr. Shalant's status as a vexatious litigant, the court was inclined to dismiss the appeal, which it did on January 11, 2022.

Plaintiff’s operative Complaint alleges the following causes of action: (1) fraud and (2) professional malpractice (legal malpractice) against Defendant Pierce.

On March 30, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”). The FAC alleges the same causes of action against Defendant Pierce.

On April 6, 2023, Defendant filed their demurrer to all causes of action of the FAC, as well as the motion to strike portions of the FAC. Plaintiff opposes both motions.

1. Exhibit A: The Judgment in the case of Joseph Shalant v. Robert Mackston, LASC Case No. SCl16968.

2. Exhibit B: March 31, 2020, notice to the Los Angeles Superior Court in writing, with copy to Mr. Shalant, that defendant would no longer be representing plaintiff in the Appeal process.

3. Exhibit C: April 1, 2020, notice to the Court of Appeal in writing, with copy to Mr. Shalant, that defendant would no longer be representing plaintiff in the Appeal process.

4. Exhibit D: Substitution of Attorney signed by both plaintiff, Joseph Shalant, and defendant, David H. Pierce and filed with the Court of Appeal on April 6, 2020.

5. Exhibit E: Docket sheet in Court of Appeal case No. B305061 (Shalant v. Mackson).

6. Exhibit F: December 2, 2021, letter from the Court of Appeal advising counsel in case No. B305061 (Shalant v. Mackson) that based on appellant's status as a vexatious litigant the Court was inclined to dismiss the appeal.

Defendant’s request is granted. The existence and legal significance of these documents are proper matters for judicial notice. (Evid. Code § 452(h).) However, the court may not take judicial notice of the truth of the contents of the documents. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) Documents are only judicially noticeable to show their existence and what orders were made. The truth of the facts and findings within the documents are not judicially noticeable. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885.)

Discussion[1]

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525 (Berkley).) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (CCP § 452; see also Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601.) “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3 (Mahan), citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

The elements of a fraud cause of action are: (1) misrepresentation (false representation, concealment, or omission); (2) knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Davis v. Southern California Edison Co. (2015) 236 Cal.App.4th 619.) Fraud must be pled in the complaint specifically. General and conclusory allegations are not sufficient. (Stansfield v. Starkey¿(1990)¿220 Cal.App.3d 59,¿74;¿Nagy v. Nagy¿(1989) 210 Cal.App.3d 1262, 1268.) Unlike most causes of action where the “the policy of liberal construction of the pleadings,” fraud requires particularity, that is, “pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Stansfield, supra, 220 Cal.App.3d at 73;¿Lazar v. Superior Court¿(1996) 12 Cal.4th 631, 645.) Every element of a fraud cause of action must be alleged both factually and specifically. (Hall v. Department of Adoptions¿(1975) 47 Cal.App.3d 898, 904; Cooper v. Equity General Insurance¿(1990) 219 Cal.App.3d 1252, 1262.)¿

“that on April 6, 2020, Mr. Shalant reached a stipulated agreement with Mr. Pierce to substitute into the case as his own attorney and signed a Substitution of Attorney which was filed in the Court of Appeal. The FAC further fails to describe the actions taken by Mr. Shalant, who acted as his own attorney, in pro per, for the nearly two years from April 6, 2020, when he substituted in as his own counsel, until January 11, 2022, when the Appeal was dismissed.” (Demurrer, 10.)

As such, Defendant contends that any potential fraud or malpractice claims against him “had to have occurred during the approximate one-month period of time between the first meeting of the parties on March 7, 2020, and the filing of the Substitution of Attorney on April 6, 2020.” (Id.)

Therefore, Defendant contends the first cause of action for fraud is not particularly pled as they fail to include “foundational facts,” and further are “specious in that the $2,500, the total amount paid by plaintiff, was returned to the plaintiff.” (Dem., 11-12.)

In opposition, Plaintiff again points to the retainer agreement and initial deposit of $2,500 but fails to explain how that is relevant anymore, considering all paid monies were returned to Plaintiff. (Opposition, 3-6.) Further, Plaintiff contends that the harm done was beyond the $2,500 deposit, and was “outrageous” and fraudulent, pointing to paragraphs 3, 4, 5, 6, 7, 8, 9, 13, 15, 16,17, 20, 22, 23, 24 and 25 of the FAC. (Opp., 9-10.)

However, a review of the FAC shows the aforementioned paragraphs fail to show, without conclusory opinions, factual allegations to establish that any alleged modification of a retainer agreement caused Plaintiff harm, especially considering Plaintiff represented himself for nearly two years after Defendant’s removal from the representation.

“Nowhere in the opposition, and certainly nowhere in the FAC, does the Plaintiff postulate what material fact was intentionally misrepresented or concealed by the Defendant. Similarly, nowhere in the opposition does the Plaintiff attempt to show where in the FAC it is alleged that it was the intention of Mr. Pierce to deprive Mr. Shalant of property or a legal right. Nowhere does the opposition point out where in the FAC Plaintiff alleges property or a legal right that was deprived.” (Reply, 2-3.)

A review of the first cause of action shows it to be insufficiently pled. Namely, Plaintiff fails to include factual allegations to establish the elements of a fraud claim—importantly, the particularity required for any misrepresentation and a showing of damage or harm done to Plaintiff.

Therefore, the court sustains Defendant’s demurrer to the first cause of action.

The elements of a claim for professional negligence are: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.” (Paul v. Patton (2015) 235 Cal.App.4th 1088, 1095.)

Pursuant to CCP § 340.6 (a), an action against an attorney for a “wrongful act or omission,” other than for actual fraud, shall be commenced within one year after “the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. “

Defendant contends that the second cause of action must fail because it is barred by the statute of limitations. (Demurrer, 12-14.) Specifically, Defendant contends that Plaintiff’s cause of action is untimely because it was filed nearly two years after the attorney-client relationship terminated on April 6, 2020, and beyond the time Plaintiff should have known through the exercise of reasonable diligence that he had a cause of action. (Id.)

“Any deleterious effects of the defendant's actions occurred in 2020. The effects of the representation were not contingent on the appeal being successful or being dismissed. This action for legal malpractice is time-barred.” (Dem., 14-15.)

Alternatively, Defendant contends the second cause of action is insufficiently pled as it is “vague and uncertain” as to any damages cause by Defendant’s conduct, and “devoid of any facts which would establish that the defendant is in any way responsible for plaintiff’s appeal being dismissed.” (Demurrer, 16-17.)

In opposition, Plaintiff contends that the second cause of action is sufficiently pled because “until the appeal was dismissed in 2022, plaintiff had not incurred any definable and unambiguous damages amounting to an actual injury.” (Opposition, 10-11.) However, Plaintiff fails to explain how a reasonable person could not have discovered any alleged wrongful act or omission with reasonable diligence in the nearly two years following the end of the attorney-client relationship.

Plaintiff contends that the statute of limitations was sufficiently tolled because of tolling due to the underlying Mackston action. (Opposition, 11-12.)

The court finds that the second cause of action is insufficiently pled. First, the court liberally construes the FAC in favor of Plaintiff and but cannot accept Plaintiff’s assertion that he was injured, absent factual pleadings showing a wrongful act or omission. Nevertheless, the court agrees with Defendant that even if Plaintiff was injured no earlier than April 2020, Plaintiff offers no explanation for why he “discovered” that he had a legal malpractice claim in 2022 and did not file this action in 2022, more than 2 years after he was alleged injured. Plaintiff’s FAC fails to demonstrate how he could not have discovered, through the use of reasonable diligence, that he had a cause of action for legal malpractice within one year of April 2020. Thus, the FAC demonstrates that Plaintiff and Defendant Pierce were each in an equal position to discover Defendant’s alleged wrongdoing, and Plaintiff offers no explanation for why this is not the case and why he did not discover the basis for his action until 2022.

For these reasons, Defendant’s demurrer to the second cause of action is sustained.

Defendant’s demurrer is sustained in its entirety. Defendant’s motion to strike is therefore moot. Plaintiff is given 20 days leave to amend from this date. Defendant is to give notice.

[1] Defendant submit his own declaration to demonstrate that he has fulfilled the meet and confer obligations prior to filing the instant demurrer. (“Pierce Decl.”) Defendant attests that on April 4, 2023, his associate sent Plaintiff’s counsel a letter raising the same issues in this demurrer. (Pierce Decl. ¶ 14.) Defendant attests Plaintiff’s counsel responded on April 4, 2023, indicating no resolution would be reached. (Pierce Decl. ¶15.) The Pierce Declaration is sufficient for purposes of CCP § 430.41.