Superior Court of California 

County of Los Angeles 

Department 78 

 

SAIED YAHAYAKSHANI, et al.

Plaintiffs,  

vs. 

TERESA A. LIBERTINO, et al.

Defendants. Case No.: 22STCV34821 

DEFENDANTS THERESA LIBERTINO, GERALD MALANGA, JONATHAN LATTIE, AND LATTIE MALANGA LIBERTINO, LLP’S DEMURRER

Defendants’ Demurrer is SUSTAINED with leave to amend.

If Plaintiffs wish to file and serve an amended complaint, they are ordered to do so within 20 days after the date of this order.

Defendants are ordered to file an answer or other responsive pleading within 20 days after service of any first amended complaint.

The stay is lifted.

Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.

FACTUAL BACKGROUND

This is an action for professional negligence arising from legal representation which ended in December 2021. (Compl., ¶4.) Plaintiffs allege that they retained Defendants Theresa Libertino, Gerald Malanga, Jonathan Lattie, and Lattie Malanga Libertino, LLP to represent them in a breach of contract and negligence matter and that Defendants’ representation fell below the standard of care, causing damages. (Compl., ¶¶4-6.)

PROCEDURAL HISTORY 

On November 1, 2022, Plaintiffs Saied Yahayakshani and Vered Corsandi filed their Complaint against Defendants Theresa Libertino, Gerald Malanga, Jonathan Lattie, and Lattie Malanga Libertino, LLP.

On March 6, 2023, the parties stipulated to stay this action pending the resolution of another action, BC715816. The stipulation provided that Defendants were not required to file a responsive pleading in the present matter until 14 days after the stay is lifted. The stay did not preclude Defendants from filing a responsive pleading during the stay.

On January 18, 2023, Defendants filed the instant demurrer.

On June 27, 2023, Plaintiffs filed an opposition. 

On June 28, 2023, Defendants filed a reply.

DISCUSSION 

Defendants demur to Plaintiffs’ Complaint on the grounds that (1) the Complaint fails to state facts sufficient to allege a cause of action for professional negligence and (2) the Complaint is uncertain.

Defendants attempted to meet and confer over the contents of the Complaint, but Plaintiffs’ counsel was out of the country. (Emdee Decl., ¶3.) The parties stipulated to stay the action, but the Court was unavailable to review the stipulation until after Defendants’ deadline to file a responsive pleading. (Id.) Defendants then filed the instant demurrer to preserve its rights and interests. (Id.) Defendants’ attempts to meet and confer meet the requirements of Code Civ. Proc., § 430.41(a).

A. Sufficiency

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. 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 pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.)

Here, Defendants demur to the Complaint on the grounds that it fails to state facts sufficient to support a cause of action for professional negligence.

To prevail on legal malpractice a party must prove four elements: “(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.)  

 

“[T]he elements of causation and damage are particularly closely linked” for legal malpractice claims.¿(Id. at 1582.) “The¿plaintiff must prove, by a preponderance of the evidence, that but for the attorney's negligent acts or omissions, he would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred.”¿(Id.)

Here, the Complaint alleges that Plaintiffs retained Defendants, attorneys licensed to engage in the practice of law in California. (Compl., ¶2.) Plaintiff’s retained Defendants to represent them in a breach of contract and negligence matter. (Id., ¶4.) Defendants’ representation fell below the applicable standard of care, causing damages of $1,000,000 or according to proof. (Compl ¶¶4-6.) But for Defendants’ negligence, the loss would not have occurred. (Compl., ¶7.)

The Complaint adequately alleges that Defendants owed a duty of care because it alleges Defendants are licensed to engage in the practice of law. As licensed attorneys, Defendants owed a duty to Plaintiffs to use skill, prudence, and diligence as members of his profession commonly possess. However, the allegations of the Complaint are conclusory because they merely state Defendants’ conduct fell below the standard of care without any facts to support this conclusion. The Complaint also fails to allege facts showing how Defendants’ breach led to Plaintiff’s damages. 

The demurrer is sustained on this ground.

B. Uncertainty

Defendants argue that the Complaint is fatally uncertain.

“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.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) “A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.” (Weil & Brown, Civil Procedure Before Trial (The Rutter Group) § 7:85 (emphasis in original).) “The objection of uncertainty does not go to the failure to allege sufficient facts.” (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459.) “It goes to the doubt as to what the pleader means by the facts alleged.” (Id.) “Such a demurrer should not be sustained where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.” (People v. Lim (1941) 18 Cal.2d 872, 882.)  

Upon review of the Complaint, the Court finds that the allegations are not so bad Defendants cannot reasonably respond because the Complaint alleges that Plaintiffs are suing Defendants because their representation in another matter fell below the standard of care. Accordingly, the Demurrer as to uncertainty is overruled. 

DATED: August 24, 2023 

____________________________

Hon. Jill Feeney

Judge of the Superior Court