Judge: Gail Killefer, Case: 23STCV13792, Date: 2023-11-22 Tentative Ruling

Case Number: 23STCV13792    Hearing Date: November 22, 2023    Dept: 37

HEARING DATE:                 Wednesday, November 22, 2023

CASE NUMBER:                   23STCV13792

CASE NAME:                        Florinda Barrientos Godoy v. Sedgwick Claims Management

MOVING PARTY:                 Defendant Diefer Law Group, PC

OPPOSING PARTY:             None

TRIAL DATE:                        Not Set

PROOF OF SERVICE:           OK

PROCEEDING:                      Demurrer to Plaintiff’s Complaint

OPPOSITION:                        Non-Filed.

REPLY:                                  *Notice of Non-Opposition filed on November 15, 2023

TENTATIVE:                         Defendant’s demurrer is sustained without leave to amend.  The Case Management Conference is taken off calendar.  The complaint is dismissed with prejudice.  Defendant is to give notice.   

Background

on June 15, 2023, Florinda Barrientos Godoy (“Plaintiff”), in pro per, filed a Complaint against Sedwick Claims Management Services; TD Ameritrade; Laughlin, Falbo, Levy & Moresi LLP and Diefer Law Group PC.

On September 12, 2023, Defendant Diefer Law Group (“Diefer”), PC filed a demurrer to Plaintiff’s Complaint. A Notice of Non-Opposition to Defendant’s demurrer was filed on November 15, 2023. The demurrer came before the court on November 22, 2023.

Discussion

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.        Request for Judicial Notice

The Court may take judicial notice of records of any court of record of the United States. (Evid. Code, § 452(d)(2).) However, the court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.) 

Defendant Diefer requests judicial notice of the following:

1)     The Notice of Dismissal of Attorney filed by Plaintiff on May 28, 2021, with the California Workers’ Compensation Appeals Board (Case No. ADJ10018780), a true and correct copy of which is attached hereto as Exhibit “C.”

Defendant’s request for judicial notice is granted.

III.      Demurrer[1]

A.        Statement of Facts

Plaintiff’s two-page Complaint alleges that she was the beneficiary of a workers’ compensation lawsuit (WCAB Case No. ADJ10018780), in which Plaintiff would receive $14,875.00 via a check mailed to her apartment. (Compl. at p. 1.) Plaintiff states that for weeks she attentively checked her mailbox and was in constant email communication with Diefer Law Group, P.C. On July 16, 2020, Vicky Barajas of Diefer Law Group informed her that the insurance company (Sedgwick Claims) had notified Ms. Barajas that the check was sent on June 11, 2020, and was cashed in by July 16, 2020. (Compl. at p. 1.)

Plaintiff states that Ms. Barajas emailed her a copy of the signed check with a fraudulent signature using Plaintiff’s name “and for mobile deposit at TD Ameritrade.” (Compl. at p. 2.) Plaintiff states that for months she urged her attorney at Diefer Law Group to see what could be done about the stolen check “and the fact that TD Ameritrade allowed someone to use my identity and deposit that stolen check of $14,875.00.” (Compl. at p. 2.) Plaintiff states that by March 2022, all parties involved had stopped investigating and blamed one another but mostly Plaintiff for the error. (Compl. at p. 2.) Plaintiff has now filed this lawsuit seeking to resolve the issue in order to recuperate the $14,875.00 stolen from her “along with other appropriate reparations for my stolen identity to open the TD Ameritrade account and for all the time I’ve spent fighting for what belongs to me.” (Compl. at p. 2.)

Defendant Diefer Law Group, PC (“Diefer”) now demurrers to Plaintiff’s Complaint on the grounds of uncertainty because the Complaint fails to state a cause of action and is barred by the statute of limitations.

B.        Plaintiff’s Failure to State a Cause of Action Renders the Complaint Uncertain

CCP § 425.10 requires that a Complaint contain “[a] statement of facts constituting the cause of action, in ordinary and concise language.” Here, the Complaint provides a statement of facts but fails to allege a cause of action under which relief may be granted. Therefore, the court agrees that the Complaint is uncertain because Defendant Diefer is not reasonably certain as to how to respond and what issues must be admitted or denied or what counts or claims are directed against it. (See Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

Defendant Diefer also argues if Plaintiff’s claims arise out of Diefer’s professional obligations to Plaintiff as her former attorneys, then a one-year statute of limitations applies to Plaintiff’s claims and the claims are time-barred^[2]. (CCP § 340.6(a).) “[B]ased on its plain language, section 340.6 applies to all actions ‘against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services....’ [Citation.]” (Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 819.) 

Plaintiff’s Complaint states that in March 2022, Plaintiff knew that all parties involved had stopped investigating, such that pursuant to CCP § 340.6, Plaintiff should have brought suit by March 2023 for any wrongful act or omission, relating to legal services rendered. Therefore, the court also agrees that Plaintiff’s claims against Defendant Diefer appear to be time-barred.

Based on Plaintiff’s failure to oppose the demurrer and show that her Complaint is capable of successful amendment, the court sustains the demurrer without leave to amend.

Conclusion

Defendant’s demurrer is sustained without leave to amend. .  The Case Management Conference is taken off calendar.  The complaint is dismissed with prejudice.  Defendant to give notice.