Judge: Holly J. Fujie, Case: 22STCV28337, Date: 2023-04-07 Tentative Ruling

Case Number: 22STCV28337    Hearing Date: April 7, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendant Farbood Majd (“Moving Defendant”)

RESPONDING PARTY: Plaintiff

The Court has considered the moving, opposition and reply papers.  

BACKGROUND

This action arises out of an attorney-client relationship.  On August 30, 2022, Plaintiff filed a complaint (the “Complaint”) alleging: (1) legal malpractice; (2) breach of contract; and (3) breach of fiduciary duty. 

In relevant part, the Complaint alleges: On August 24, 2018, Plaintiff entered into a written retainer agreement (the “First Retainer”) for the purpose of having Moving Defendant and his law firm represent Plaintiff during the preparation of a pre-marital agreement (the “PMA”) before Plaintiff married Ladan Homayoon-Sefat (“Homayoon-Sefat”).  (Complaint ¶ 8, Exhibit A.)  Moving Defendant did not provide a draft of the proposed PMA until March 2019.  (Complaint ¶ 13.)  The draft of the PMA presented to Plaintiff in March 2019 was incomplete and the delay caused tension between Plaintiff and Homayoon-Sefat.  (See id.)  Moving Defendant’s delay also forced Plaintiff to retain additional counsel to assist with finalizing the PMA.  (Complaint ¶ 12.)  The PMA was ultimately signed on May 17, 2019, and Plaintiff and Homayoon-Sefat got married on May 24, 2019.  (Complaint ¶¶ 20-21, Exhibit B.)  The stress and tension that built during the preparation of the PMA on the eve of their wedding damaged Plaintiff’s relationship with Homayoon-Sefat, and the couple ultimately separated in November 2020.  (Complaint ¶¶ 23-26.) 

On December 14, 2020, Plaintiff entered into a second retainer agreement (the “Second Retainer”) for Moving Defendant to represent him in the marital dissolution action (the “Dissolution Action”) that commenced on December 15, 2020.  (Complaint ¶ 27, Exhibit C.)  The terms of the PMA allegedly left Plaintiff’s interests unprotected.  (See Complaint ¶¶ 17, 28-30.)  During the Dissolution Action, Moving Defendant concealed that the PMA was negligently drafted and failed to address the issues with its terms.  (See Complaint ¶¶ 30-32.)  Moving Defendant’s failure to present evidence during the Dissolution Action concerning the terms of the PMA and the value of Plaintiff’s assets, in addition to their inaccurate advice regarding the benefits of settling with Homayoon-Sefat, caused Plaintiff to enter into a settlement agreement (the “Settlement”) that obligated Plaintiff to pay Homayoon-Sefat a disproportionately large sum of money.  (See Complaint ¶¶ 35-42.) 

Moving Defendant also overcharged Plaintiff for his services, both in connection to the PMA and the Dissolution Action.  (Complaint ¶ 43.)  In addition, Moving Defendant has revealed confidential information about the representation.  (Complaint ¶¶ 46-47.) 

Moving Defendant filed a demurrer (the “Demurrer”) on the grounds that the Complaint fails to state facts sufficient to constitute a cause of action because the legal malpractice claim is not timely and that there is a misjoinder of parties.  Moving Defendant also filed a motion to strike (the “Motion”) portions of the Complaint.

REQUEST FOR JUDICIAL NOTICE

Plaintiff’s Request for Judicial Notice is GRANTED as to the existence of the documents, but not to the truth of the matters asserted therein.  (See Scott v. JP Morgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 752-54.)

DEMURRER

Meet and Confer

The meet and confer requirement has been met for the Demurrer and Motion.

Legal Standard

A demurrer tests the sufficiency of a complaint as a matter of law.  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)  The court accepts as true all material factual allegations and affords them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.  (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.)  With respect to a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.  (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.)  A demurrer will be sustained without leave to amend if there exists no reasonable possibility that the defect can be cured by amendment.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

Misjoinder of Parties

A defendant may demur to a complain on the ground that there is a defect or misjoinder of parties.  (CCP § 430.10, subd. (d).)  A demurrer is particularly unsuited to resolving questions of fact regarding the misjoinder of parties because a demurrer lies only for defects appearing on the face of the pleadings and a defendant may not make allegations of defect or misjoinder of parties in the demurrer if the pleadings do not disclose the existence of the matter relied on; such objection must be taken by plea or answer.  (Verizon California Inc. v. Board of Equalization (2014) 230 Cal.App.4th 666, 680.)

Moving Defendant argues that the Demurrer should be sustained because the attorneys that Plaintiff hired to assist with the completion of the PMA were not named as parties.  The Court finds that based on the allegations in the Complaint, misjoinder is not a proper basis to sustain the Demurrer because it sets forth allegations that are specific to Moving Defendant and that extend beyond the negotiation of the PMA.   

Legal Malpractice Statute of Limitations

The elements of legal malpractice are: (1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney's negligence.¿¿(Namikas¿v. Miller¿(2014) 225 Cal.App.4th 1574, 1581.)  Under California Code of Civil Procedure (“CCP”) section 340.6, subdivision (a), the statute of limitations for a legal malpractice claim, other than a claim for actual fraud, is one year from when 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.  (CCP § 340.6, subd. (a).)  The time for commencing an action is tolled during the time when: (1) the plaintiff has not sustained actual injury; (2) the attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred; (3) the attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney, except that this subdivision shall toll only the four-year limitation; or (4) the plaintiff is under a legal or physical disability which restricts the plaintiff’s ability to commence legal action.  (Id.; see Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 313.)

For purposes of the tolling rule, the test for actual injury is whether the plaintiff has sustained any damages compensable in an action.  (Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 275.)  Under this standard, the fact of damage, rather than the amount, is the critical factor.  (Id.)  Thus, a plaintiff sustains “actual injury” when he or she incurs attorney fees to rectify the problem caused by the prior attorney's alleged negligence.  (Id. at 275-76.)  Further, actual injury may occur even if the loss is contingent on an appeal or other final adjudication.  (Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26, 42.)  The inquiry concerns whether events have developed to a point where plaintiff is entitled to a legal remedy, not merely a symbolic judgment such as an award of nominal damages.  (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 752.)  Once the plaintiff suffers actual harm, however, neither difficulty in proving damages nor uncertainty as to their amount tolls the limitations period.  (Id.)

While determining whether an attorney continues to represent the plaintiff regarding the specific subject matter under CCP section 340.6, subdivision (a)(2) is generally a question of fact, it can be decided as a question of law if the undisputed facts can support only one conclusion.  (Nguyen v. Ford (2020) 49 Cal.App.5th 1, 14.)  Consequently, courts should sustain demurrers based on section 340.6 in appropriate circumstances.  (Id. at 14-15.) 

            The Court finds that the legal malpractice claim is not time-barred on its face.  As alleged, Moving Defendant withdrew as Plaintiff’s counsel in the Dissolution Action on September 23, 2021, and the Complaint was filed under a year after the representation ended. (See Complaint ¶ 60.)  In addition, the Complaint alleges wrongdoing that occurred during the Dissolution Action (pursuant to the Second Retainer) that is distinct from the alleged malpractice that occurred before the PMA was entered into.  A determination regarding whether Plaintiff’s legal malpractice claim is time-barred would require the Court to make factual findings that are inappropriate at the pleading stage.  The Court therefore OVERRULES the Demurrer to the first cause of action.

Second and Third Causes of Action

            Moving Defendant argues that the breach of contract and breach of fiduciary duty claims are time-barred because they flow from the alleged legal malpractice claim and are therefore insufficient.  In light of the Court’s ruling on the legal malpractice claim, the Court is not persuaded by this argument.  In addition, the Complaint alleges that in addition to the negligence during the representation, Moving Defendant failed to accurately charge Plaintiff for his services and revealed confidential information.  The Court therefore OVERRULES the Demurrer to the second and third causes of action.

Moving Defendant is ordered to file and serve a responsive pleading within 20 days of the date of this order. 

MOTION TO STRIKE

Legal Standard

Under CCP section 436, a motion to strike either: (1) strikes any irrelevant, false or improper matter inserted in any pleading; or (2) strikes any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court.  (CCP § 436.)

The Motion seeks to strike allegations concerning Plaintiff’s entitlement to attorney’s fees and punitive damages.  As a preliminary matter, both Retainer Agreements contain attorney’s fees provisions.  (See Civ. Code § 1717, subd. (a).) 

Punitive Damages

A plaintiff may recover punitive damages in an action for breach of an obligation not arising from contract when the plaintiff proves by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice.  (Civ. Code § 3294, subd. (a).)  Malice is conduct which is intended by the defendant to cause injury to the plaintiff, or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.  (Civ. Code § 3294, subd. (c)(1).)  Despicable conduct is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.  (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331.)  Oppression is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.  (Civ. Code § 3294, subd. (c)(2).) 

            The Court finds that as a whole, the Complaint states sufficiently specific facts to allow Plaintiff to allege his entitlement to recover punitive damages based on Moving Defendant’s malice, fraud, or oppression.  The Complaint alleges that Moving Defendant negligently represented Plaintiff in two representations.  During the second representation, Moving Defendant failed to disclose the problems with the PMA and purposely concealed facts that may have been favorable to Plaintiff.  The Court therefore DENIES the Motion. 

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person.  The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.  This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

        Dated this 7th day of April 2023