Judge: John J. Kralik, Case: 24BBCV00024, Date: 2024-05-17 Tentative Ruling
Case Number: 24BBCV00024 Hearing Date: May 17, 2024 Dept: NCB
North
Central District
|
HANI MAMMO, Plaintiff, v. ABA LAW GROUP, et al.,
Defendants. |
Case No.: 24BBCV00024 Hearing Date: May 17, 2024 [TENTATIVE] order RE: Demurrer; Motion to strike |
BACKGROUND
A.
Allegations
Plaintiff Hani Mammo (“Plaintiff”) alleges
that he hired and retained Defendant ABA Law Group (“ABA”) to represent him and
his businesses in several legal matters from 2021 to 2023. Plaintiff alleges that Defendant Christopher
Reyes was an attorney who has passed away in December 2023 and his estate is
believed to be Defendant Estate of Christopher Reyes (“Reyes”). Plaintiff alleges that Defendant Bianca
Santamaria (“Santamaria”) was Reyes’ wife and willfully took and received money
and property from Reyes with the intent to defraud Plaintiff and other
creditors. Plaintiff alleges that Defendants
Edward Damas (“Damas”) and Kurt Fredric Zimmerman (“Zimmerman”) are
attorneys.
Plaintiff alleges that in 2021 and
2022, he hired and paid Defendants to work on the following cases, alleging
that Defendants failed to perform legal services as follows. (Compl., ¶26.)
Plaintiff alleges that during the time
Defendants represented him, Plaintiff would regularly check in with Defendants
about the 7 active cases, and Zimmerman and Reyes repeatedly told him that they
were working on the cases and there was nothing for Plaintiff to do. Plaintiff alleges that he found out in 2023
that he could search the court website to check the status of the cases and
discovered that there were several missed hearings and trials, sanctions, and
gross legal malpractice by Defendants.
The complaint, filed January 3, 2024,
alleges causes of action for: (1) negligence; (2) breach of contract; (3)
negligence – legal malpractice; (4) legal malpractice/respondent
superior/agency; (5) fraud; (6) voidable transaction; (7) declaratory relief;
(8) creditor’s action; (9) fraudulent conveyance; and (10) conspiracy to
fraudulently convey property. The 1st to 3rd causes of
action are alleged against ABA, Damas, Zimmerman, and Reyes. The 4th cause of action is alleged
against ABA. The 5th to 10th
causes of action are alleged against Reyes and Santamaria.
B.
Motions on Calendar
On April 17, 2024, Defendant Kurt
Zimmerman filed a demurrer and a motion to strike portions of the
complaint.
On May 6, 2024, Plaintiff filed a single
opposition brief to the demurrer and motion to strike.
On May 10, 2024, Defendant filed reply
briefs.
REQUeST FOR JUDICIAL NOTICE
Zimmerman request
judicial notice of Exhibits: (A)-(C) documents filed in LASC Case No.
20CHCV00262, Mammo v. Athas Capital Group, et al.; (D)-(F) documents
filed in LASC Case No. BC604605, Vargas v. Mammo, et al.; (G) a minute
order filed in LASC Case No. 22CHRO00618, Lopez v. Mammo; (H)-(I) documents
filed in LASC Case No. 22STCV35495, Recinos et al. v. Mammo et al.;
(J)-(K) documents filed in LASC Case No. 23CHCV00863, Lopez. v. Mammo et al.;
(L)-(M) documents filed in LASC Case No. 23CHCV01428, Lopez v. Mammo et al.;
and (N) an answer to the complaint filed in LASC Case No. 23STCV01410, Haynes
et al. v. Mammo et al. The request is granted. (Evid. Code, § 452(d).)
DISCUSSION RE DEMURRER
Zimmerman demurs
to the 1st, 2nd, and 3rd causes of action in
the complaint on the grounds that they fail to state sufficient facts and are
uncertain.
The elements of a negligence cause of
action are “duty, breach of duty, proximate cause, and damages.” (Carlsen
v. Koivumaki (2014) 227 Cal.App.4th 879, 892.) In a legal malpractice action arising from a civil proceeding,
the elements are (1) the duty of the attorney to use
such skill, prudence, and diligence as a member of his or her profession
commonly possess and exercise; (2) a breach of that duty;
(3) proximate causal connection between the breach and
the resulting injury; and (4) actual loss or
damage resulting from the attorney's negligence.” (Jones v. Whisenand (2017)
8 Cal.App.5th 543, 550.) “Proof of legal
malpractice requires proof not only of negligence by the lawyer but also of
causation, a trial within a trial to establish that, but for the lawyer's
negligence, the client would have prevailed in the underlying action.” (United Community Church v. Garcin (1991)
231 Cal.App.3d 327, 334.)
In the 1st cause of action,
Plaintiff alleges that he was Defendants’ client and that by virtue of the
attorney-client relationship, Defendants owed him a duty to act with the utmost
good faith and in his best interest.
(Compl., ¶39.) Plaintiff alleges
that Defendants grossly failed to meet the standards of care when representing
him in the 7 underlying cases and thereby breached their duty to
Plaintiff. (Id., ¶¶40-41.) Plaintiff alleges that Defendants’ negligence
was a deviation from the regular standard of care and their acts/omissions fell
below the standard of care for comparable attorneys who practice in the
community. (Id., ¶¶43-44.)
Zimmerman argues that Plaintiff has not
alleged a valid contractual relationship between Plaintiff and Zimmerman to
create an attorney-client relationship.
He also argues that Plaintiff has not alleged any facts regarding
causation—i.e., but for Zimmerman’s negligence, Plaintiff would have succeeded
in the underlying litigations.
The complaint alleges that Plaintiff hired
and entered into a contract for legal services with ABA to represent Plaintiff
and several businesses, and that ABA assigned Reyes and Zimmerman to work on
Plaintiff’s cases. (Compl., ¶25.) He alleges that the parties had an
attorney-client relationship at least for the purposes of this cause of
action. (Id., ¶39.) However, Plaintiff has not alleged facts
regarding causation that Plaintiff would have prevailing in the underlying
actions or in the defense of the underlying actions. While Plaintiff need not prove such facts at
the pleading stage, he must at least allege facts supporting this element.
The demurrer to the 1st cause
of action is sustained with leave to amend.
The essential elements of a cause of
action for breach of contract are: “(1) the
existence of the contract, (2) plaintiff's performance or excuse for
nonperformance, (3) defendant's breach, and (4) the resulting damages to
plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)
In the 2nd cause
of action, Plaintiff alleges that during the period of their legal services and
representation of Plaintiff, Defendants knew or should have known the perils
posed to Plaintiff for their failure to comply with their duties of care and
failure to attend hearings, and that their conduct deviated from the standard
of care, which caused him to suffer legal injuries and financial losses. (Compl., ¶¶48-49.) Plaintiff alleges that Defendants’ negligence
and breaches of the standard of care constituted clear negligence. (Id., ¶50.)
Zimmerman argues that the 2nd
cause of action fails to allege a breach of contract and appears to be
duplicative of the 1st cause of action.
Based on the allegations of the complaint,
it cannot be ascertained whether the contract for legal services was oral or
written. CCP §430.10(g) states that
there are grounds for a demurrer when it cannot be determined from the
pleadings whether the contract is written, oral, or implied by conduct. Further, as pointed out by Zimmerman, the allegations
appear to be directed towards negligent conduct as opposed to a breach of
contract, making it duplicative of the 1st cause of action for negligence (or
legal malpractice).
As such, the demurrer to the 2nd
cause of action is sustained with leave to amend.
In the 3rd cause of action,
Plaintiff alleges that he was a patient under Defendant’s care and supervision
for a hemorrhoid removal, such that they had a healthcare provider/patient
relationship. (Compl., ¶¶56-57.) Plaintiff alleges that ABA and its agents/employees
failed to follow the standard of care when performing an appendectomy on
Plaintiff, thereby breaching their fiduciary duty. (Id., ¶58.)
This is not a case for medical malpractice,
but rather for legal malpractice. The
general facts supporting this case are regarding Defendants’ failure to
represent Plaintiff in the 7 underlying cases, not for performing a medical
procedure.
In the demurrer, Zimmerman argues that
Plaintiff has already alleged a legal malpractice cause of action in the 1st
cause of action, such that the 3rd cause of action is
unnecessary. In the opposition brief, Plaintiff
argues that this cause of action is better titled as a breach of fiduciary
duty. However, Plaintiff does not
address the allegations regarding the appendectomy and healthcare relationship
in the complaint or how this relates to the legal malpractice action.
The demurrer to the 3rd cause
of action is sustained. The Court will
allow Plaintiff an opportunity to amend this cause of action to allege facts
consistent with this action.
DISCUSSION RE MOTION TO STRIKE
Zimmerman moves to strike
the request for punitive damages in the prayer for relief in the complaint.
In light of the
ruling on the demurrer, the motion to strike is taken off-calendar as moot.
CONCLUSION
AND ORDER
Defendant Kurt
Zimmerman’s demurrer to the complaint is sustained with 20 days leave to amend
as to the 1st, 2nd, and 3rd causes of action.
Defendant’s motion
to strike is taken off-calendar as moot.
Defendant shall
provide notice of this order.
DATED:
May 17, 2024 ___________________________
John
Kralik
Judge
of the Superior Court