Judge: Jon R. Takasugi, Case: 22STCV20693, Date: 2023-02-27 Tentative Ruling

Case Number: 22STCV20693    Hearing Date: February 27, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendant’s demurrer is SUSTAINED, WITH 15 DAYS LEAVE TO AMEND.

            Defendant’s motion to strike is GRANTED, WITH 15 DAYS LEAVE TO AMEND.

            On 6/24/2022, Plaintiff Alfredo Lopez (Plaintiff) filed suit against Martin L. Berman, Esq., Law Offices of Plaster, and Edward J. Siegler, Esq., alleging: (1) legal malpractice; and (2) breach of fiduciary duty.

            Now, Edward J. Siegler (Defendant) demurs to the second cause of action. Defendant also moves to strike portions of the Complaint.

            The motion is unopposed.

Discussion

            Defendant argues that Plaintiff has failed to allege sufficient facts to state a claim for breach of fiduciary duty.

            The elements of a claim for breach of fiduciary duty are nominally similar to legal malpractice—duty, breach, causation, and damages. (See Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 932.)

Breach of fiduciary duty is a distinct tort, however, from a claim for legal malpractice. (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086). Thus, although an attorney is generally considered the client’s fiduciary, negligence by the attorney does not automatically give rise to a civil action for breach of fiduciary duty. Rather, an action for breach of fiduciary duty will generally only lie when an attorney converts his client’s business opportunities, obtains an unfair advantage at the client’s expense, or has a conflict of interest. (See Tri-Growth Center City, Ltd. v. Silldorf, Berdman, Duignan & Eisenberg (1989) 216 Cal.App.3d 1139 (attorney purchased land sought by his client); David Welch Company v. Erskine & Tulley (1988) 203 Cal.App.3d 884 (attorneys converted client’s account for their own personal benefit); see also Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1102 [“The basic fiduciary obligations are twofold: undivided loyalty and confidentiality”], superseded by statute on other grounds.)

Here, Plaintiff has not alleged facts which could show a breach of fiduciary duty separate and apart from the legal malpractice cause of action. Whether an attorney breached his or her fiduciary duty to a client is irrelevant to whether an attorney fell below the standard of care, and vice-versa. (See Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086; Edwards v. Thorpe (E.D. Pa. 1995) 876 F. Supp. 693, 694 [“Negligence in a fiduciary relationship implicates the duty of care, not the duty of loyalty”].)

As such, Plaintiff has also not alleged facts which could show damages resulting from the alleged breach of fiduciary duty. Rather, Plaintiff has only alleged facts concerning legal malpractice.

Based on the foregoing, Defendant’s demurrer is sustained, with 15 days leave to amend.

Motion to Strike

            Defendant argues that Plaintiff seeks to strike the following from the Complaint:

1. Page 11, paragraph 44, lines 8: “the loss of the settlement value of a free and clear 9092 Jurupa”;

2. Page 11, line 22: “For prejudgment interest at the maximum legal rate”;

3. Page 11, line 25: “For attorney’s fees as permitted by law”;

4. Page 12, line 4: “For prejudgment interest at the maximum legal rate”; and

5. Page 12, line 6 “For attorney’s fees as permitted by law”

            As to the first request, the Court accepts well-pled allegations as true. As such, as long as Plaintiff alleges that he could have been able to recoup against the balance of his judgment, the Court cannot properly engage in a factual determination as to whether or not he, in fact, could have. However, given that Plaintiff does not expressly allege this, the Court grants Defendant’s motion as to this allegation, with 15 days leave to amend.

This leaves the allegations for prejudgment interest and attorneys fees.

As for attorney fees, absent an agreement or statute, a party is generally precluded from recovery of attorney fees. Here, Plaintiff has not alleged any basis for the recovery of attorney fees.

As for prejudgment interest, Civil Code section 3287, subdivision (a) states in pertinent part:

Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor from paying the debt.

            As a result, prejudgment interest is commonly awarded on contract claims for liquidated amounts. (See George v. Double D Foods (1984) 155 Cal.App.3d 36, 46.) In tort actions, prejudgment interest is given in cases of the type where damages can be made certain. For example, in tort actions for property damage where the value of the property destroyed can readily be calculated by reference to market value or expert testimony, prejudgment interest can be awarded. (Levy-Zentner Co. v. Southern Pacific Transportation Co. (1977) 74 Cal.App.3d 762, 798.)

            Here, however, Plaintiff alleged he has incurred damages by Defendant’s failure to discover a lien, impacting the value of property he received from a debtor. Plaintiff has not alleged facts which could show that there is a way to determine with certainty what damages flowed from this alleged negligence.

            Plaintiff’s failure to oppose is considered a concession to the merits of Defendant’s arguments.

            Based on the foregoing, Defendant’s motion to strike is granted, with 15 days leave to amend.

It is so ordered.

Dated:  February    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

            Due to Covid-19, the court is strongly discouraging in-person appearances.  Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk.  The court encourages the parties wishing to argue to appear via L.A. Court Connect.  For more information, please contact the court clerk at (213) 633-0517.  Your understanding during these difficult times is appreciated.