Judge: Joel L. Lofton, Case: 23AHCV01328, Date: 2023-09-12 Tentative Ruling

Case Number: 23AHCV01328    Hearing Date: September 12, 2023    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:      September 12, 2023                                        TRIAL DATE: No date set.

CASE:                         LAURA FETTIG, v. THOMAS F. MORTIMER; MORTIMER LAW FIRM; JIM ORLAND; ORLAND LAW GROUP; DOES 1 through 25, inclusive.  

CASE NO.:                 23AHCV01328

DEMURRER

MOVING PARTY:               Defendants Thomas F. Mortimer, Mortimer Law Firm, Jim Orland and Orland Law Group

                                                Demurrer to cross-Complaint filed by Plaintiff Laura Fettig

SERVICE:                             Demurrer filed July 21, 2023

                                                Demurrer to cross-complaint filed August 25, 2023

OPPOSITION:                     Opposition to demurrer to complaint filed  August 23, 2023

                                                Opposition to demurrer to cross-complaint filed September 8, 2023

REPLY:                                   Reply to demurrer to complaint filed September 5, 2023

                                                 Reply to demurrer to cross-complaint filed September 11, 2023

RELIEF REQUESTED

             Defendants demurrer to Plaintiff’s complaint.

            Plaintiff demurrers to Defendants’ cross-complaint.

BACKGROUND

             This case arises out of Plaintiff Laura Fettig’s (“Plaintiff”) legal malpractice claims against Defendants Thomas F. Mortimer, Mortimer Law Firm, Jim Orland, and Orland Law Group (“Defendants”). Plaintiff filed her complaint on June 12, 2023, alleging two causes of action for (1) legal malpractice and (2) breach of fiduciary duty.

            On July 21, 2023, Defendants Mortimer Law Firm and Orland Low Group, APC (“Cross-Complainants”) filed a cross-complaint alleging one causes of action for breach of contract. Cross-Complainants allege that Plaintiff failed to pay for legal services provided.

TENTATIVE RULING

            Defendant’s demurrer to Plaintiff’s complaint is OVERRULED.

            Plaintiff’s demurrer to Defendant’s cross-complaint is SUSTAINED with leave to amend.

REQUESTS FOR JUDICIAL NOTICE

Plaintiff’s requests for judicial notice are denied.

LEGAL STANDARD

A general demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code of Civ. Proc. § 430.10(e).) A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (Code Civ. Proc. section 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn v. Mirda, supra, 147 Cal.App.4th 740, 747.)

Additionally, a special demurrer to a complaint may be brought on the ground the pleading is uncertain, ambiguous, or unintelligible. Code Civ. Proc section 430.10(f); Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1191.) A demurrer based on uncertainty is disfavored and will be strictly construed even when the pleading is uncertain in some respects. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrers based on uncertainty are “granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)

DISCUSSION

            Demurer Complaint

            Defendants demurrer to Plaintiff’s two causes of action for legal malpractice and breach of fiduciary duty.

            “ ‘The failure to provide competent representation in a civil or criminal case may be the basis for civil liability under a theory of professional negligence.’ [Citation.] To prove a legal malpractice cause of action, the plaintiff must show: (1) a duty by the attorney to use such skill, prudence and diligence as members of his or her profession commonly possess and exercise; (2) 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.” (Redante v. Yockelson (2003) 112 Cal.App.4th 1351, 1356.)

            “ ‘The elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) its breach, and (3) damage proximately caused by that breach.’ ” (O’Neal v. Stanislaus County Employees’ Retirement Assn. (2017) 8 Cal.App.5th 1184, 1215.)

            Defendants argue that Plaintiff is unable to establish the causation element necessary to maintain her claims. However, Defendants’ arguments are more akin to arguments suitable for a motion for summary judgment. Defendants argue that background facts of the case demonstrate Plaintiff’s inability to show causation. Defendants’ factual arguments are misplaced at the pleading stage where the inquiry is of the allegations contained in the complaint.

            “ ‘ “A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.” ’ ” (Panterra GP, Inc. v. Superior Court of Kern County (2022) 74 Cal.App.5th 697, 709.) “In short, the ruling on a demurrer determines a legal issue on the basis of assumed facts, i.e., all those material, issuable facts properly pleaded in the complaint, regardless of whether they ultimately prove to be true.” (State of California ex rel. Bowen v. Bank of America Corp. (2005) 126 Cal.App.4th 225, 240.)

            Plaintiff alleges that Defendants actions caused her damages. (Complaint ¶¶ 21 and 28.) At the pleading stage, Plaintiff’s allegations are sufficient to allege causation.

            Defendants also argue that Plaintiff’s claims are barred by the statute of limitations.

            “An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after 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.” (Code Civ. Proc. § 340.6, subdivision (a).)

            Defendants argue that Plaintiff’s claims are barred by the statute of limitations because Plaintiff filed her complaint over a year after the appellate court released its opinion. However, Defendants do not request this court to take judicial notice of the appellate court’s opinion nor is the opinion incorporated into the complaint. Further, Defendants fail to demonstrate that the date of the appellate court’s decision is the same date that Plaintiff’s claims began to accrue for application of the statute of limitation.

            Defendants’ demurrer is overruled.

            Demurrer to Defendants’ Cross-Complaint

            Plaintiff demurrers to Defendants’ Cross-Complaint where Defendants alleged one cause of action for breach of contract for failure to pay legal fees.

            “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

            Plaintiff argues here that Defendants’ Cross-Complaint makes an improper request for fees because the agreement between the parties was on a contingency basis.

            “ ‘Where written documents are the foundation of an action and are attached to the complaint and incorporated therein by reference, they become a part of the complaint and may be considered on demurrer.’ ” (County of San Bernardino v. Superior Court (2022) 77 Cal.App.5th 1100, 1107.)

            Exhibit A attached to the Cross-Complaint, which forms the basis for Defendants’ sole cause of action for breach of contract, provides: “It is understood and agreed between Client and Attorneys that if there is no recovery in the pending lawsuit against Hilton Worldwide, Inc., Hilton Garden Inns Management LLC. and Madison Brown, that Client owes Attorneys nothing for legal services or fees.” Further, Defendants’ Cross-Complaint makes no reference of a recovery obtained during their representation to establish fees for legal services. Defendants fail to address this issue in their opposition. Defendants’ request for legal fees is without basis.

            Plaintiff’s demurrer to Defendants’ cross-complaint is sustained.

CONCLUSION

            Defendant’s demurrer to Plaintiff’s complaint is OVERRULED.  Defendant is ordered to file a Responsive pleading within 15 days notice of this ruling.

            Plaintiff’s demurrer to Defendant’s cross-complaint is SUSTAINED with 10 days leave to amend.

            Moving Parties to provide notice.

Dated:   September 12, 2023                          ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  Parties intending to appear are strongly encouraged to appear remotely.  alhdeptx@lacourt.org