Judge: John J. Kralik, Case: 24BBCV00024, Date: 2024-12-20 Tentative Ruling

Case Number: 24BBCV00024    Hearing Date: December 20, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

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 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 that she 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 who worked on Plaintiff’s case.

            Plaintiff alleges that in 2021 and 2022, he hired and paid Defendants to work on the following cases, but Defendants failed to perform legal services as follows (SAC, ¶26):

• LASC Case No. 22STCV35495, Sonia Recinos et al. v. Mammo et al.: Plaintiff alleges that Defendants failed to defend or engage in the matter, missed hearings and discovery deadlines, caused sanctions to be imposed against Plaintiff, and failed to report the matter to Plaintiff’s insurance.
• LASC Case No. 23CHCV00863, Monica Macias Lopez. v. Mammo Enterprises LLC et al.: Plaintiff alleges that Defendants were grossly negligent and failed to defend or engage in the matter and failed to report the matter to Plaintiff’s insurance. 
• LASC Case No. 23CHCV01428, Lopez v. Mammo et al.: Plaintiff alleges that Defendants were grossly negligent, failed to defend or engage in the matter, abandoned the case which caused sanctions to be imposed against Plaintiff, and failed to report the matter to Plaintiff’s insurance.
• LASC Case No. 23STCV01410, Racquel Haynes et al. v. Bushra Mammo et al.: Plaintiff alleges that Defendants were grossly negligent, failed to defend or engage in the matter, and failed to report the matter to Plaintiff’s insurance.
• LASC Case No. 22CHRO00618, Lopez v. Mammo: Plaintiff alleges that Defendants failed to defend or file the papers necessary to terminate and expunge the case. 
• LASC Case No. BC604605, Jorge Vargas v. Mammo, et al.: Plaintiff alleges that Defendants only appeared to a single hearing and then failed to attend any further hearings.  Plaintiff alleges that Defendants’ gross negligence caused them to miss several trial dates, such that judgment was entered against Plaintiff in excess of $600,000 in December 2022. 
• LASC Case No. 20CHCV00262, Mammo v. Athas Capital Group, et al.: Plaintiff alleges that Defendants failed to represent or pursue this matter, such that the failure to prosecute resulted in a dismissal and court sanctions against Plaintiff. 

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 first amended complaint (“FAC”), filed May 24, 2024, alleges causes of action for: (1) negligence; (2) breach of contract; (3) breach of fiduciary duty; (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 1^st to 3^rd causes of action are alleged against ABA, Damas, Zimmerman, and Reyes.  The 4^th cause of action is alleged against ABA.  The 5^th to 10^th causes of action are alleged against Reyes and Santamaria. 

On July 17, 2024, Defendant Kurt Zimmerman filed a demurrer to the FAC.   On September 20, 2024, the Court sustained with leave to amend Defendant’s demurrer as to the second and third causes of action.  On October 10, 2024, Plaintiff filed a Second Amended Complaint.

Motion on Calendar

On November 12, 2024, Defendant Zimmerman filed a demurrer to the SAC challenging the two causes of action which the Court previously sustained Defendant’s demurrer with leave to amend.  On December 9, 2024, Plaintiff filed an opposition to the demurrer.  On December 16, 2024, Defendant Zimmerman filed a reply to the opposition.

DISCUSSION

            Zimmerman demurs to the second (breach of contract) and third (breach of fiduciary duty) causes of action in the SAC on the grounds that they fail to state sufficient facts.  This Court previously sustained Zimmerman’s demurrer as to these counts with leave to amend.  Defendant argues that that Plaintiff has refiled the exact same allegations and facts.  

1. Second cause of action for Breach of Oral Contract

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.) “An oral contract may be pleaded generally as to its effect, because it is rarely possible to allege the exact words.”  (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Zimmerman argues that the SAC alleges oral contracts or a single oral contract, as well as facts that Plaintiff entered into the oral contract for himself and several businesses, but the businesses have not been included as parties to the action. 

In the SAC, Plaintiff alleges that he hired and retained ABA, he entered into a contract for legal services with ABA to represent himself and several businesses he owns (Mammo Enterprises LLC and others), and ABA assigned Reyes and Zimmerman to work as lead counsel on Plaintiff’s cases.  (SAC, ¶¶2, 25.) 

In his opposition, Plaintiff identifies paragraph 25 as the definition of his contract. In paragraph 25 of the SAC, Plaintiff has alleged a single oral contract with ABA Law Group. Plaintiff has not alleged a second, individual contract with Zimmerman, and Zimmerman is not alleged to be a party to this contract. As this is the second time that Plaintiff has failed to allege facts sufficient for a cause of action for breach of oral contract against Defendant, the demurrer to the 2^nd cause of action is sustained without leave to amend.

2. 3^rd cause of action for Breach of Fiduciary Duty  

To state a cause of action for breach of fiduciary duty, Plaintiff must allege: (1) the existence of a fiduciary relationship; (2) its breach; and (3) damage proximately caused by that breach.  (Roberts v. Lomanto (2003) 112 Cal. App. 4th 1553, 1562.)  A fiduciary relationship is any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party.  (Wolf v. Superior Court (2003) 106 Cal.App.4th 625, 629.)  “The relation between attorney and client is a fiduciary relation of the very highest character, and binds the attorney to most conscientious fidelity ....”  (Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1102.)  The basic fiduciary obligations include undivided loyalty and confidentiality. (Id.)  Such fiduciary duty includes the obligation to render a full and fair disclosure to the client of all facts which materially affect his rights and interests.  (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 188-189.) 

In the 3^rd cause of action, Plaintiff alleges that all Defendants had an attorney-client relationship with Plaintiff and they each owed him a fiduciary duty to act with the utmost good faith and in his best interests and legal representation – a duty which they breached by failing to represent him, abandoning his legal matters, and making false and willfully misleading statements to Plaintiff.  (SAC, ¶53.)  He alleges that these actions fell below the fiduciary duty owed under the attorney-client relationship to Plaintiff.  (Id.)  Plaintiff alleges that the attorneys and employees of ABA breach their fiduciary duty by failing to prosecute, failing to defend, and making false statements to the Plaintiff when he asked about the cases’ progress and status.  (Id., ¶54.) 

In the prior order, this Court found that “[f]urther facts should be alleged to support the nature of the fiduciary relationship and how Defendants (and Zimmerman) breached that duty.”  (Order, 09/20/24, p. 9).  Zimmerman again argues that a breach of fiduciary duty claim in the attorney-client context will only lie where an attorney converts his client’s business opportunities, obtains an unfair advantage at his client’s expense, or has a conflict of interest.  (Dem. to SAC, p.7.)  He argues that Plaintiff’s allegations in the SAC still fail to allege “any breach of the twofold fiduciary obligations of undivided loyalty or confidentiality” or any other breach of fiduciary duty as established by caselaw.  (Dem. to SAC, p. 8.)

In response, Plaintiffs argue that Defendant’s demurrer is redundant, as Plaintiff resolved the issues this Court sustained in the First Amended Complaint.  However, in the SAC, Plaintiff yet again repeats general allegations made in connection with previous causes of action.  This is not sufficient to support a cause of action for breach of fiduciary duty.  Defendant Zimmerman is entitled to details of which case he supposedly abandoned, and what he did, if anything, that is beyond mere negligence.

Complete abandonment without withdrawal as counsel of record could be a breach of fiduciary duty. Yet Plaintiff has again not alleged facts that are distinct from the general legal malpractice allegations against all defendants jointly.  Some fact or hopefully facts specific to Zimmerman should be alleged. Was he counsel of record in a specific case? Did he abandon it while still counsel of record? How? What were the specific consequences? What facts infer that he was at least reckless or intended to cause injury?

Without more, there is no consequence to the allegations of breach of fiduciary duty. If Plaintiff is going to seek punitive damages, there will need to be some definition of what specifically Mr. Zimmerman did that constitutes reckless or malicious behavior. The demurrer to the 3^rd cause of action is sustained with leave to amend. Plaintiff is cautioned that this may be the final opportunity to amend this cause of action against Mr. Zimmerman.

CONCLUSION AND ORDER

Defendant Kurt Zimmerman’s demurrer to the SAC is sustained without leave to amend as to the second cause of action, and with leave to amend as to the third cause of action.  

Defendant shall provide notice of this order.

DATED:  December 20, 2024                                    ___________________________

                                                                              JOHN KRALIK, Judge

                                                                              Superior Court of California

                                                                              County of Los Angeles