Judge Holly J. Fujie, Case Number: 24STCV10296, Date: 2024-10-28 Tentative Ruling

MOVING PARTY: Plaintiff/Cross-Defendant GERALDINE ANGEL (“Plaintiff” or “Cross-Defendant”)

GEORGE W. ANGEL, GEORGE C. FERNANDEZ (collectively, “Defendants” or “Cross-Complainants”)

This case stems from an alleged agreement between Plaintiff and Defendants regarding certain services to be provided by Plaintiff to Defendants. On April 24, 2024, Plaintiff filed a complaint against Defendants asserting the following causes of action: (1) Fraudulent Inducement of Contract; (2) Fraud and Deceit; (3) Breach of the Covenant of Good Faith and Fair Dealing; (4) Promissory Estoppel; (5) Intentional Infliction of Emotional Distress; (6) Negligence Per Se; (7) Negligence; (8) Quantum Meruit; (9) Breach of Contract; and (10) Declaratory Relief.

On May 29, 2024, Defendants filed a cross-complaint (the “Cross-Complaint”) alleging 1) Negligence; 2) Fraud and Deceit; 3) Breach of Contract; 4) Fraudulent Billing; 5) Violation of CCP § 1029.8; and 6) Breach of Fiduciary Duty.

On July 15, 2024, Plaintiff filed the instant Demurrer to the Cross-Complaint (the “Demurrer”). Defendants filed an opposition on September 24, 2024, and Plaintiff filed a reply on October 21, 2024.

“The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not “read passages from a complaint in isolation; in reviewing a ruling on a

demurrer, we read the complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v.

JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth

of the properly pleaded factual allegations, facts that reasonably can be inferred from those

expressly pleaded and matters of which judicial notice has been taken.” (Harris, supra, 56 Cal.4^th p. 240.) “The court does not, however, assume the truth of contentions, deductions or

conclusions of law. [Citation.]” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350,

As a general matter, 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.) “The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Here, Plaintiff demurs to the Cross-Complaint generally, as well as specifically to each of the six causes of action asserted therein on the grounds that the Cross-Complaint fails to state a cause of action and is vague and uncertain.

Preliminarily, Plaintiff asserts that the Cross-Complaint lacks any specific dates regarding the alleged acts or omissions, making it impossible to determine compliance with the statute of limitations, and is therefore inherently and fatally vague on its face. The Court, however, declines to sustain the demurrer solely on this ground. “If the dates establishing the running of the statute of limitations do not clearly appear in the complaint, there is no ground for general demurrer. The proper remedy ‘is to ascertain the factual basis of the contention through discovery and, if necessary, file a motion for summary judgment....’ (Roman v. Cnty. of Los Angeles (2000) 85 Cal. App. 4th 316, 324–25, citing United Western Medical Centers v. Superior Court (1996) 42 Cal.App.4th 500, 505.) “While a demurrer based on statute of limitations lies where the dates in question are shown on the face of the complaint, if those dates are missing, there is no ground for a general demurrer.” (United Western, supra, at 505.)

To plead a cause of action for negligence, one must allege (1) a legal duty owed to plaintiffs to use due care; (2) breach of duty; (3) causation; and (4) damage to plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal. App. 4th 292, 318.) “In order to state a cause of action for negligence, the complaint must allege facts sufficient to show a legal duty on the part of the defendant to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.” (Bellah v. Greenson (1978) 81 Cal.App.3d 614, 619.)

In the same vein, the following elements must be alleged to plead breach of fiduciary duty: 1) fiduciary duty; 2) breach of the duty; and 3) damage caused by the breach. (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 182; Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086.

Here, the Cross-Complaint asserts conclusory allegations that “19. Cross-Defendant was negligent in the handling of the Cross-Complainants' legal matters…. 20. Cross-Defendant was negligent in not providing proper legal representation and in misrepresenting her qualifications and role to the Cross-Complainants.” (Cross-Complaint, ¶¶ 19-20.) The Cross-Complaint does not state facts, however, to support the essential element of whether Plaintiff had a duty of care towards Defendants in the first place, and what that duty consists of, since the Cross-Complaint does not clearly state what type of services the parties have agreed upon (i.e., whether Plaintiff, as agreed, had the duty to render legal services and legal representation as a non-attorney, or merely in a secretarial or administrative role).

Similarly, for the breach of duty cause of action, the Cross-Complaint again states in a conclusory manner that Plaintiff “breached her fiduciary duty to Cross-Complainants by not rendering proper care to them over their legal matter” (Cross-Complaint, ¶ 69.) Defendants must first show the existence of a fiduciary relationship. Alleging that “Cross-Defendant acted as fiduciaries over Cross-Complainants having taken over as their legal advisor and consultant” (Id.) does not suffice. Facts giving rise to a confidential, fiduciary or trustee relationship must be pled, and a “bare allegation that defendants assumed a fiduciary relationship” is a conclusion. (Zumbrun v. Univ. of So. Cal. (1972) 25 Cal.App.3d 1, 13.)

On these grounds, the demurrer to the first and sixth causes of action is SUSTAINED with 20 days leave to amend.

“The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal. 4th 631, 638.) “[F]raud must be pled specifically; general and conclusory allegations do not suffice... This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Lazar, supra, 12 Cal. 4th at 645.)

Here, the Cross-Complaint does not clearly allege what misrepresentations were made by Plaintiff on which Defendants justifiably relied. It is alleged that “Cross-Defendant held and presented herself as a professional equivalent to a lawyer who was able to perform legal services when, in fact, she was unlicensed and unqualified to provide legal services.” (Cross-Complaint, ¶ 33 [emphasis added].) It is thus clear from the Cross-Complaint that Cross-Complainants knew that Plaintiff was not an attorney.

Representing herself as “a professional equivalent to a lawyer” is not the same as misrepresenting that she is a lawyer. As a corollary to that issue, Defendants cannot justifiably or reasonably rely on any representation that she would be qualified to perform legal services. The allegation that “reliance was reasonable under the circumstances because it appeared to save them money” (Id., ¶ 36) suggests that Defendants knew of Plaintiff’s qualification, or lack thereof, and seems to contradict the position that they were induced to rely on Plaintiff’s misrepresentation.

Moreover, allegations of fraud and deceit must be pled with particularity, and the Cross-Complaint also fails in this respect. As currently alleged, the cause of action for fraud cannot stand.

Thus, the demurrer to the second cause of action for fraud and deceit is SUSTAINED with twenty days leave to amend.

“To establish a cause of action for breach of contract, the plaintiff must plead and prove (1) the existence of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damages to the plaintiff.” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98 [internal citation omitted].)

Here, the Cross-Complaint does not clearly allege the existence of the contract. Paragraphs 13 and 14 of the Cross-Complaint make reference to a written agreement between the parties, but do not set forth what the relevant terms of the agreement are (e.g. what type of services or billing arrangements were agreed upon), nor is the purported agreement attached to the Cross-Complaint. Instead, the Cross-Complaint states “a copy of which will be provided during discovery” as Ex. 1 and Ex.2. (Cross-Complaint, ¶¶ 13-14.)

“In an action based on a written contract, the plaintiff may plead the legal effect of the contract rather than its precise language.” Ochs v. PacifiCare of Cal. (2004) 115 Cal.App.4th 782, 795. Accord Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.) To “plead a contract by its legal effect, plaintiff must ‘allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.’ ” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)

Without clearly alleging the contract terms, the Cross-Complaint necessarily does not state facts to support allegations of performance or excuse for non-performance (which the Cross-Complaint also does not allege) as well as any alleged breach. Moreover, the Cross-Complaint confusingly alleges in paragraph 36 that “Cross-Complainants do not believe there ever was a binding legal contract other than a contingency that did not come about” (Cross-Complaint, ¶ 36), which negates any allegations of the existence of a contract.

Therefore, the demurrer to the third cause of action is SUSTAINED with twenty days leave to amend.

The Cross-Complaint alleges that Plaintiff fabricated charges and billed Defendants with charges that were unauthorized under the agreement. (Cross-Complaint, ¶¶ 49-52.) As discussed above, neither the existence nor the terms of the agreement are clearly alleged. In any case, “fraudulent billing” is not a separate tort, but any allegations of fraudulent billing for legal services can form the basis or be pursued under claims of fraud or breach of fiduciary duty. (Charnay v. Cobert (2006) 145 Cal.App.4th 170 [billing for work not performed or performed by others at lower rates constitutes a breach of fiduciary duty and fraud]; Bird, Marella, Boxer & Wolpert v. Superior Court (2003) 106 Cal.App.4th 419 [the court recognized a fraud claim where the plaintiff alleged that the defendants engaged in block billing, vague descriptions of work, excessive fees, and inflated billings for simple tasks].)

Accordingly, the demurrer to the fourth cause of action for fraudulent billing is SUSTAINED without leave to amend.

Code Civ. Proc. § 1029.8 provides that “[a]ny unlicensed person who causes injury or damage to another person as a result of providing goods or performing services for which a license is required… shall be liable to the injured person for treble the amount of damages assessed in a civil action in any court having proper jurisdiction. The court may, in its discretion, award all costs and attorney’s fees to the injured person if that person prevails in the action.” (CCP, § 1029.8(a).) Under subdivision (b), however, of the same provision, it states that “[t]his section shall not be construed to confer an additional cause of action or to affect or limit any other remedy, including, but not limited to, a claim for exemplary damages.” (Id., § 1029.8(b) (emphasis added).)

Clearly, this provision provides for a remedy, but does not authorize a separate cause of action. Accordingly, the demurrer to the fifth cause of action is SUSTAINED without leave to amend.

Based on the foregoing, the demurrer to the first, second, third, and sixth causes of action is SUSTAINED with twenty days leave to amend. The demurrer to the fourth and fifth causes of action is SUSTAINED without leave to amend.

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.

Hon. Holly J. Fujie

Judge of the Superior Court