Judge Helen Zukin, Case Number: 23SMCV00668, Date: 2023-06-20 Tentative Ruling

Judge: Helen Zukin, Case: 23SMCV00668, Date: 2023-06-20 Tentative Ruling

Case Number: 23SMCV00668 Hearing Date: June 20, 2023 Dept: 207

Background

Plaintiffs The Lawman Group, APC and Shahin Gozarkhah (“Plaintiffs”) bring this action against California Lawyers Group, Inc. and Mitra Chegini (“Defendants”). Plaintiff The Lawman Group previously acted as counsel for third party Ali Reza Daneshi (“Daneshi”) in connection with an automobile accident he was involved in while operating a vehicle as an Uber driver. Daneshi eventually terminated Plaintiffs’ representation and retained Defendants to act as counsel in connection with the accident. Daneshi’s claims relating to the accident were eventually settled and Plaintiffs bring this action asserting they are owed a share of those settlement funds pursuant to the retention agreement between The Lawman Group and Daneshi. Defendants now bring a demurrer to three of the four causes of action asserted against them in Plaintiffs’ Complaint, arguing each fails to state facts sufficient to constitute a cause of action against them pursuant to Code Civ. Proc. § 430.10(e). Defendants’ demurrer is unopposed.

Legal Standard

When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) However, it does not accept as true deductions, contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)

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.)

Analysis

1. Meet and Confer Requirement

Before filing a demurrer, the demurring party is required to “meet and confer in person or by telephone” with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading to resolve the objections to be raised in the demurrer. (C.C.P. § 430.41(a).) Defendants have not satisfied this meet and confer requirement. Defendants’ motion indicates their counsel sent a single letter to Plaintiffs’ counsel prior to filing the demurrer without making any attempt to meet and confer by telephone or in person as required by section 430.41(a). (Demurrer at 5.) Nonetheless, the Court will consider the merits of Defendants’ demurrer. (C.C.P. § 430.41(a)(4).) However, counsel are cautioned that any further failure to comply with these requirements will result in the relevant motion being taken off calendar until these requirements have been satisfied.

2. First Cause of Action

Plaintiffs’ first cause of action is for breach of contract. To state a cause of action for breach of contract, Plaintiff must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

Defendants argue Plaintiffs’ cause of action is based on Defendants’ alleged breach of Plaintiffs’ retention agreement with Daneshi, which they are not parties to and thus are not bound by. It is clear that the breach of contract action is based on Plaintiffs’ contract with Daneshi. (Complaint at ¶28.) That retention agreement is attached as Exhibit A to Plaintiffs’ Complaint, and Defendants are not listed as parties to that agreement.

Schick v. Lerner (1987) 193 Cal.App.3d 1321 is on point. In Schick, plaintiff sued an attorney for inducing breach of contract based on the advice the attorney gave his client, who had contracted with plaintiff. The trial court sustained the attorney's demurrer without leave to amend. In affirming, the Court of Appeal stated: “Plaintiff's attempt to plead a cause of action against Lerner for inducing a breach of contract is barred as a matter of law. Contrary to the argument advanced by plaintiff, absent extraordinary circumstances, an attorney may not be held liable for urging a client to breach a contract with some third party. [Citation.] As we discuss in greater detail, infra, public policy dictates that attorneys must remain free to counsel their clients without fear of subjecting themselves to liability as a result of the proper discharge of their professional obligations. Clients as well must feel free to seek out an attorney's advice on any issue at any time. ‘Any rule to the contrary would constitute a serious impairment to the attorney-client relationship, and a resulting deleterious effect on the administration of justice. [Citation.]’ [Citation.]” (Id. at 1329 [quoting Wolfrich Corp. v. United Services Automobile Assn. (1983) 149 Cal.App.3d 1206, 1211].)

Plaintiffs have not opposed Defendants demurrer and have made no showing that they can state a cause of action for breach of contract against Defendants based on their contract with Daneshi. The Court SUSTAINS Defendants’ demurrer to the first cause of action for breach of contract without leave to amend.

3. Second Cause of Action

The required elements of a common count claim are “(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment. A cause of action for money had and received is stated if it is alleged the defendant is indebted to the plaintiff in a certain sum for money had and received by the defendant for the use of the plaintiff.” (Farmers Insurance Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [citation and quotation marks omitted].)

Defendants argue Plaintiffs’ second cause of action for common count is derivative of their first cause of action for breach of contract and must fail for the same reasons. The Court agrees. Plaintiffs’ common count claim is based on Defendants’ purported failure to abide by the terms of the retention agreement they entered with Daneshi. (Complaint at ¶¶34-36.) “When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394.) As the Court has sustained Defendants’ demurrer to the first cause of action without leave to amend, the same result follows with respect to the derivative common count claim. Defendants’ demurrer to the second cause of action is SUSTAINED without leave to amend.

4. Fourth Cause of Action

“To qualify for declaratory relief, a party would have to demonstrate its action presented two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the party’s rights or obligations.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909 [quotation marks and brackets omitted].)

A cause of action for declaratory relief should not be used as a second cause of action for the determination of identical issues raised in another cause of action. (General of America Insurance Co. v. Lilly (1968) 258 Cal.App.2d 465, 470.) “The availability of another form of relief that is adequate will usually justify refusal to grant declaratory relief” (California Insurance Guarantee Association v. Superior Court (1991) 231 Cal.App.3d 1617, 1624), and a duplicative cause of action is subject to demurrer (Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290). Further, “there is no basis for declaratory relief where only past wrongs are involved.” (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 366 [quotation marks omitted].)

Defendants argue Plaintiffs have failed to state a cause of action against them for declaratory relief because Plaintiffs “solely rely on the written contract between them and their former attorney and seek a judicial declaration of the rights and obligations of the parties in this action.” (Demurrer at 7.) The Court finds Plaintiffs sufficiently state a cause of action for declaratory relief. Plaintiffs’ Complaint is based on the allegation that Defendants are holding settlement funds on behalf of Daneshi and that they have a legal claim to ownership of some portion of those settlement funds by virtue of their contract with Daneshi. The Complaint seeks a judicial determination as to the parties’ respective claims over those funds based on the parties’ respective contracts with Daneshi. Defendants have not shown such controversy is insufficient to support a claim for declaratory relief. Defendants’ demurrer to the fourth cause of action is OVERRULED.

Conclusion

Defendants’ demurrer is SUSTAINED without leave to amend as to Plaintiffs’ first and second causes of action and is OVERRULED as to Plaintiffs’ fourth cause of action.