Judge: Gary Y. Tanaka, Case: 22TRCV00557, Date: 2023-01-17 Tentative Ruling
Case Number: 22TRCV00557 Hearing Date: January 17, 2023 Dept: B
LOS ANGELES SUPERIOR COURT –
SOUTHWEST DISTRICT
Honorable Gary Y. Tanaka Tuesday,
January 17, 2023
Department B Calendar No. 3
PROCEEDINGS
Steven
Bliss v. Corey William Glave, et al.
22TRCV00557
1. Corey Glave’s Demurrer to Complaint
TENTATIVE RULING
Corey Glave’s Demurrer to Complaint is overruled.
Background
Plaintiff filed the Complaint
on July 7, 2022. Plaintiff alleges the following facts. Plaintiff was an L.A.
County Sheriff’s deputy undergoing administrative disciplinary proceedings.
Plaintiff retained Defendant to represent him. Defendant told Plaintiff not to
attend an administrative hearing known as a Skelly hearing. Defendant also
failed to attend. Plaintiff was discharged after not attending the hearing. Defendant
also improperly disclosed privileged matters. Plaintiff alleges the following causes of action: 1. Professional
Negligence (Legal Malpractice); 2. Breach of Fiduciary Duty.
Meet and Confer
Defendant set forth a meet and confer declaration in
sufficient compliance with CCP §§ 430.41. (Decl., Corey Glave, ¶ 4.)
Request for Judicial Notice
Defendant’s request for judicial notice is granted
pursuant to Evidence Code section 452(d). The Court takes judicial notice of
the Court’s own file. The taking of judicial notice is not a determination that
any of the matters set forth in the request has any impact on the Court’s
ruling herein.
Demurrer
A demurrer tests the sufficiency of a complaint as a
matter of law and raises only questions of law. (Schmidt v. Foundation Health
(1995) 35 Cal.App.4th 1702, 1706.) In
testing the sufficiency of the complaint, the court must assume the truth of
(1) the properly pleaded factual allegations; (2) facts that can be reasonably
inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank
v. Kirwan (1985) 39 Cal.3d 311, 318.)
The Court may not consider contentions, deductions, or conclusions of
fact or law. (Moore v. Conliffe
(1994) 7 Cal.App.4th 634, 638.) Because
a demurrer tests the legal sufficiency of a complaint, the plaintiff must show
that the complaint alleges facts sufficient to establish every element of each
cause of action. (Rakestraw v.
California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts
sufficient to constitute a cause of action, courts should sustain the
demurrer. (C.C.P., § 430.10(e); Zelig
v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)
Sufficient facts are the essential facts of the case
"with reasonable precision and with particularity sufficiently specific to
acquaint the defendant with the nature, source, and extent of his cause of
action.” (Gressley v. Williams
(1961) 193 Cal.App.2d 636, 643-644.)
"Whether the plaintiff will be able to prove the pleaded facts is
irrelevant to ruling upon the demurrer."
(Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)
Under Code Civil Procedure § 430.10(f), a demurrer may
also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s
factual allegations are so confusing they do not sufficiently apprise a
defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp.
(1986) 185 Cal.App.3d 135, 139, fn. 2.) “Demurrers for uncertainty under
Code of Civil Procedure section 430.10, subdivision (e) are disfavored.
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.
A demurrer for uncertainty should be overruled when the
facts as to which the complaint is uncertain are presumptively within the
defendant's knowledge.” Chen v. Berenjian (2019) 33 Cal.App.5th
811, 822 (internal citations and quotations omitted).
Defendant demurs to the Complaint and the first
through second causes of action on the grounds that the causes of action are
uncertain and fail to state sufficient facts to constitute a cause of action
against Defendant.
First Cause of Action for Professional Negligence
(Legal Malpractice)
Defendant’s demurrer to the first cause of action is overruled.
Plaintiff states sufficient facts to constitute a cause of action and the cause
of action is not uncertain.
“In order to establish a cause of action for legal
malpractice the plaintiff must demonstrate: (1) breach of the attorney's duty
to use such skill, prudence, and diligence as other members of the profession
commonly possess and exercise; (2) a proximate causal connection between the
negligent conduct and the resulting injury; and (3) actual loss or damage
resulting from the negligence.” Carlton v. Quint (2000) 77 Cal.App.4th
690, 699
Plaintiff has stated sufficient facts to meet each of
the elements of the cause of action. Plaintiff
alleges that by informing Plaintiff to not attend the Skelly hearing, and by he
himself not attending the Skelly hearing and, also, by disclosing
attorney/client privileged matters, Defendant breached his duty to use skill,
prudence, and diligence. (Complaint, ¶¶ 21, 22.) Defendant alleges facts showing a causal
connection between the conduct and the harm. (Complaint, ¶¶ 21, 23.) Plaintiff alleges damages. (Complaint, ¶¶ 21, 24.)
Defendant’s demurrer improperly attempts to impose a
heightened specific pleading standard upon Plaintiff’s causes of action. In addition, the demurrer relies upon facts
outside the scope of the pleadings and attempts to argue defenses and factual
matters which are improper when analyzing a demurrer. At times, the demurrer resembles, quite
frankly, arguments made at trial rather than even a motion for summary judgment.
The demurrer attempts to persuade the
Court of Defendant’s non-liability. Defendant
asserts arguments that rely upon the weight of the evidence and credibility. All these arguments, made upon demurrer, are
not proper for the Court to consider, as the Court must deem the matters in the
Complaint as true when analyzing a demurrer. In addition, nothing in the Request for
Judicial Notice acts to completely contradict the allegations of the Complaint.
Thus, the demurrer to the first cause of action is
overruled.
Second Cause of Action for Breach of Fiduciary Duty
The demurrer to the second cause of action is
overruled. Plaintiff states facts sufficient to state a cause of action and the
cause of action is not uncertain.
“[B]reach of fiduciary duty is a species of tort
distinct from a cause of action for professional negligence. The elements of a
cause of action for breach of fiduciary duty are: (1) existence of a fiduciary
duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by
the breach. The scope of an attorney's fiduciary duty may be determined as a
matter of law based on the Rules of Professional Conduct which, together with
statutes and general principles relating to other fiduciary relationships, all
help define the duty component of the fiduciary duty which an attorney owes to
his [or her] client. Whether an attorney has breached a fiduciary duty to his
or her client is generally a question of fact.” Stanley v. Richmond
(1995) 35 Cal.App.4th 1070, 1086–87 (internal citations and quotations
omitted).
Plaintiff has alleged facts indicating the existence
of a fiduciary duty, breach of that duty, and resulting damages. (Complaint, ¶¶ 25-31.) Similar to the demurrer to the first cause of
action, Defendant’s demurrer seeks to impose a specific pleading standard when
it is not required and consists of arguments attempting to persuade the Court
that he is not liable for the causes of action alleged against him. Defendant will have an opportunity to assert
his defenses and persuade the trier of fact at the appropriate time.
Defendant’s Demurrer to the Complaint is overruled.
Defendant is ordered to file and serve an Answer
within 10 days of this date.
Plaintiff is ordered to give notice of this ruling.