Judge Joel R Wohlfeil, Case 37-2022-00048858-CU-PN-CTL 2024-01-25 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2022-00048858-CU-PN-CTL, Date: 2024-01-25 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 12, 2024

01/12/2024 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited Professional Negligence Demurrer / Motion to Strike 37-2022-00048858-CU-PN-CTL ROMERO VS DALY [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 11/08/2023

1. The general Demurrer (ROA # 58) of Defendants MICHAEL M. DALY and DALY LAW FIRM ('Defendants') to the Third Amended Complaint ('TAC') of Plaintiff RAMIRO ROMERO ('Plaintiff'), is OVERRULED in part and SUSTAINED in part.

The Demurrer is overruled to causes of action 1 - 5 and is sustained to cause of action 6.

Plaintiff is permitted leave to file and serve a Fourth Amended Complaint within twenty (20) days of this hearing addressing the deficiencies within the sixth cause of action, if possible.

This ruling is based on the analysis set forth below.

Defendants' Request (ROA # 60) for judicial notice is GRANTED IN PART and DENIED IN PART. The Court takes judicial notice of the dates only on which Exh's 'A' and 'B' were filed with the Court, Exh's 'C - H' and Exh. 'J;' otherwise, the Request is DENIED.

Plaintiff's Request (ROA # 77) for judicial notice is GRANTED.

1st COA: Professional Negligence (Legal Malpractice) In a litigation malpractice action, Plaintiff must establish that but for the alleged negligence of Defendant attorney, Plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred. Viner v. Sweet (2003) 30 Cal. 4th 1232, 1241.

The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm - not yet realized - does not suffice to create a cause of action for negligence. Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal. 4th 739, 750.

In this case, paragraphs 75, 78 and 79 allege causation and damages. These allegations are supported by additional factual allegations within the body of the pleading. Specific fact pleading is not required.

Whether this claim for damages is speculative or conjectural are questions of fact that cannot be determined via this Demurrer.

2nd COA: Breaches of Fiduciary Duty A breach of fiduciary duty is a species of tort distinct from a cause of action for professional negligence.

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3048870 13 CASE NUMBER: CASE TITLE: ROMERO VS DALY [IMAGED] 37-2022-00048858-CU-PN-CTL Stanley v. Richmond (1995) 35 Cal. App. 4th 1070, 1086.

This cause of action does not appear to be duplicative. Defendants' reliance on Broadway Victoria, LLC v. Norminton, Wiita & Fuster (2017) 217 Cal. Rptr. 3d 414 is misplaced because this opinion was ordered not published.

As discussed above, the TAC alleges sufficient facts demonstrating the breach of a fiduciary duty and that the breach caused damages.

3rd COA: Fraud As alleged, this cause of action is premised on Defendants' concealment and failure to disclose that Plaintiff was being charged for legal fees and costs associated with the representation of Antonio Mora in the underling litigation.

Fraud must be pled specifically; general and conclusory allegations do not suffice. Lazar v. Superior Court (1996) 12 Cal. 4th 631, 645.

This particularity requirement necessitates pleading facts which show how, when, where, to whom and by what means the representations were tendered. Id. Plaintiff's burden in asserting a fraud claim against a corporate employer is even greater. Id. In such a case, Plaintiff must allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. Id. Defendants argue the TAC alleges facts disclosing Plaintiff's knowledge and consent to the dual representation. Defendants also argue Plaintiff admits in the TAC that he was made aware he was being charged for Mora's representation via the billing invoices provided by Defendants. Defendants also argue: '[l]ogic dictates that if Plaintiff was being fraudulently charged - which he was not - a reasonably prudent person would dispute the errant charges relating to Mora.' These arguments are not persuasive. In fact, the TAC alleges detailed facts demonstrating a lack of knowledge and consent.

Whether Plaintiff should have disputed or discovered the charges is a question of fact that cannot be determined via this Demurrer.

4th COA: Unjust Enrichment for the Return of Excessive Attorney's Fees and Costs Paid This cause of action alleges Defendants were unjustly enriched through the attorney fees they received from Plaintiff. It seeks disgorgement of all or part of the fees paid.

There is no cause of action in California for unjust enrichment. Durell v. Sharp Healthcare (2010) 183 Cal. App. 4th 1350, 1370.

Unjust enrichment is synonymous with restitution. Id. Restitution may be awarded in lieu of breach of contract damages when the parties had an express contract, but it was procured by fraud or is unenforceable or ineffective for some reason. Id. As a matter of law, an unjust enrichment claim does not lie where the parties have an enforceable express contract. Id. This cause of action is properly alleged as an alternative claim in the event the retainer agreement is found to be unenforceable, inapplicable or void.

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3048870 13 CASE NUMBER: CASE TITLE: ROMERO VS DALY [IMAGED] 37-2022-00048858-CU-PN-CTL 5th COA: Money Had and Received Defendants argue this cause of action is improper because 'there has not been a total lack of consideration under the agreement.' As alleged, this cause of action seeks the return of the entire sum Plaintiff has paid to Defendants. As with cause of action 4, the restitution claim, this cause of action is necessarily alleged in the alternative.

This cause of action sufficiently alleges the contract is unenforceable and Plaintiff is entitled to a return of all money paid to Defendants. Whether these allegations are accurate is a question of fact that cannot be determined via this Demurrer.

6th COA: Intentional Infliction of Emotional Distress This cause of action alleges that Defendants' wrongful and negligent conduct gives rise to a claim for IIED. The elements of the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by Defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) Plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by Defendant's outrageous conduct. Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal. 4th 965, 1001.

Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. Id. Defendant must have engaged in conduct intended to inflict injury or engaged in with the realization that injury will result. Id. Conduct is extreme and outrageous when it exceeds all bounds of decency usually tolerated by a decent society, and is of a nature which is especially calculated to cause, and does cause, mental distress.

Molko v. Holy Spirit Assn. (1988) 46 Cal. 3d 1092, 1122.

Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions or other trivialities. Id. Behavior may be considered outrageous if Defendant: (1) abuses a relation or position which gives him or her power to damage Plaintiff's interest; (2) knows Plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.

This cause of action is not sufficiently alleged. The conduct alleged does not rise to the level of 'extreme and outrageous.' Even the alleged intentional fraud was not, as alleged, calculated to cause mental distress. As alleged, Defendants committed fraud to enrich themselves, and not necessarily with the intent to cause injury or emotional distress.

_____ 2. Defendants' Motion (ROA # 62) to strike portions of Plaintiff's TAC, is GRANTED in part and DENIED in part.

The Court strikes paragraph 9 ('For attorney's fees;') within the prayer for relief; otherwise, the Motion is DENIED.

This ruling is based on the analysis set forth below.

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3048870 13 CASE NUMBER: CASE TITLE: ROMERO VS DALY [IMAGED] 37-2022-00048858-CU-PN-CTL Defendants' Request (ROA # 63) for judicial notice is GRANTED IN PART and DENIED IN PART. The Court takes judicial notice of the dates only on which Exh's 'A' and 'B' were filed with the Court, Exh's 'C - H' and Exh. 'J;' otherwise, the Request is DENIED.

Plaintiff's Request (ROA # 79) for judicial notice is GRANTED.

The Court's May 12, 2023 order (ROA # 34) granted the previous Motion to strike with leave to amend.

As a result, the amended pleading was permitted to re-plead the disputed allegations so long as the deficiencies were addressed.

The Court's order permitting leave to file and serve an amended pleading was not limited to existing causes of action. Thus, it was not improper to allege additional causes of action in the amended pleading.

The revisions in the amended pleading do not necessarily violate the 'sham pleading doctrine.' Plaintiff is permitted to correct perceived mistakes and flesh out the causes of action.

The claim for punitive damages within the prayer for relief is proper because the fraud cause of action is sufficiently alleged. A properly pled fraud claim will itself support recovery of punitive damages. No allegations of 'malice' or intent to injure Plaintiff are required because fraud is an alternative and independent basis for recovery. See Civ. Code 3294(a); Stevens v. Superior Court (1986) 180 Cal. App. 3d 605, 610; and Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal. App. 3d 1220, 1239.

The claim at paragraph 9 of the prayer '[f]or attorney's fees' is improper. Attorney fees wrongfully billed and incurred in the underlying action would be an element of special damages, as alleged at paragraph 2 within the prayer. Paragraph 9, in contrast, is an element of costs related to litigating this action. A prevailing party is entitled to attorney fees when authorized by statute or contract. Bear Creek Planning Committee v. Ferwerda (2011) 193 Cal. App. 4th 1178, 1185 (citing Code Civ. Proc. 1032 and 1033.5(a)(10)). The TAC does not allege a contractual or statutory right to attorney fees.

Finally, Defendants argue many allegations within the TAC should be stricken as contradictory, false and/or irrelevant. This aspect of the Motion is not persuasive. This argument is largely dependent on facts extrinsic to the pleading. The allegations are not necessarily contradictory.

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3048870 13