Judge: Joseph Lipner, Case: 24STCV33759, Date: 2025-02-20 Tentative Ruling
Case Number: 24STCV33759 Hearing Date: February 20, 2025 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
JOHN EDWARD ALTAMIRANO, Plaintiff, v. THE LAW FIRM OF FOX AND FOX, et
al., Defendants. |
Case No:
24STCV33759 Hearing Date: February 20, 2025 Calendar Number: 8 |
Defendants The Law Firm of Fox and Fox (“LFFF”) and Frank O.
Fox (“Fox”) (collectively, the “Fox Parties”) demur to the Complaint filed by
Plaintiff John Edward Altamarino. The Fox Parties additionally move to strike
the entire Complaint; Plaintiff’s claims for compensatory, general, and special
damages; and Plaintiff’s claim for punitive damages.
The
Court SUSTAINS the demurrer WITH LEAVE TO AMEND. Plaintiff may amend the complaint within 30
days.
The
Court DENIES the motion to strike as MOOT and on the basis that it was filed
with an insufficient notice period.
The following facts are taken from the allegations of the
Complaint, which the Court accepts as true for the purposes of the demurrer.
In 2008, due to Plaintiff’s mother’s illness, the Fox
Parties created Plaintiff’s family trust, entitled “The Altamirano Living
Trust, dated November 10, 2008” (the “Trust”).
Around 2019, Plaintiff again sought legal advice from the
Fox Parties. Fox told Plaintiff that a conservatorship would be necessary and
represented Plaintiff in the matter of Conservatorship of Amada Victoria
Altamirano, Los Angeles County Superior Court Case No. 19STPB03762 (the
“Conservatorship Case”). A conservatorship was filed on April 22, 2019 (the
“Conservatorship”) and Plaintiff was appointed the conservator on October 19,
2020. Plaintiff alleges that the conservatorship was unnecessary due to the existence
of the Trust.
In the time that followed, the Fox Parties informed
Plaintiff that they could no longer represent him due to a conflict of
interest, and Plaintiff retained Defendant Liran R. Aliav (“Aliav”).
On September 28, 2022, Plaintiff’s mother passed away. Aliav
told Plaintiff that he would need to pursue certain proceedings in probate
court. Plaintiff alleges that his mother’s bank account had $300,000.00 in it
that could have been funded into the Trust during the Conservatorship process.
Plaintiff alleges that he went through unnecessary probate proceedings as a
result.
Plaintiff filed this action on December 20, 2024, raising
claims for (1) professional negligence; (2) breach of fiduciary duty; (3)
tortious interference; (4) intentional infliction of emotional distress
(“IIED”); (5) unfair competition; and (6) fraud.
On January 28, 2024, the Fox Parties demurred to the
Complaint. Plaintiff has not filed an
opposition.
On February 13, 2024, the Fox Parties filed a motion to
strike.
The Court grants the Fox Parties’ request for judicial
notice and takes notice of the submitted public records.
The Fox Parties argue that the statute of limitations for
each claim has run. The shortest statute of limitations that the Fox Parties
raise is two years. Plaintiff alleges that he discovered in 2023 that the
conservatorship was unnecessary. Plaintiff filed this claim in 2024. The Court
therefore concludes that Plaintiff’s Complaint does not demonstrate that his
claims fall outside the statute of limitations as a matter of law.
“The elements of a cause of action for professional
negligence are (1) the existence of the duty of the professional to use such
skill, prudence, and diligence as other members of the profession commonly
possess and exercise; (2) breach of that duty; (3) a causal connection between
the negligent conduct and the resulting injury; and (4) actual loss or damage
resulting from the professional negligence.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)
“In a litigation malpractice action, the plaintiff must
establish that but for the alleged negligence of the defendant attorney, the
plaintiff would have obtained a more favorable judgment or settlement in the
action in which the malpractice allegedly occurred. The purpose of this
requirement, which has been in use for more than 120 years, is to safeguard
against speculative and conjectural claims.” (Viner v. Sweet (2003) 30
Cal.4th 1232, 1240.)
Here, Plaintiff has not alleged that he would have obtained
a more favorable outcome had the Fox Parties not advised him to pursue the
Conservatorship – indeed, Plaintiff has not alleged facts that clearly show
what the outcomes were. Plaintiff may
clarify his allegations in an amended complaint.
The Court sustains the demurrer to this claim with leave to
amend.
Plaintiff has not alleged facts that show a breach of
fiduciary duty. As noted above, the Court is providing this opportunity for
Plaintiff to set forth his allegations with greater clarity. The Court
therefore sustains the demurrer with leave to amend.
It is not clear which of these claims Plaintiff means to
raise. In any event, Plaintiff’s Complaint does not specify what the
preexisting relationship in question is, or how the Fox Parties wrongfully
interfered with it.
The Court sustains the demurrer to this claim with leave to
amend.
“The elements of a prima facie case for the tort of
intentional infliction of emotional distress are: (1) extreme and outrageous
conduct by the defendant with the intention of causing, or reckless disregard
of the probability of causing, emotional distress; (2) the plaintiff’s
suffering severe or extreme emotional distress; and (3) actual and proximate
causation of the emotional distress by the defendant’s outrageous conduct.
Conduct to be outrageous must be so extreme as to exceed all bounds of that usually
tolerated in a civilized community.” (Wilson
v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.) “Whether
a defendant’s conduct can reasonably be found to be outrageous is a question of
law that must initially be determined by the court; if reasonable persons may
differ, it is for the jury to determine whether the conduct was, in fact,
outrageous.” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534.)
Plaintiff alleges that the Fox Parties unnecessarily advised
him to pursue the Conservatorship and represented him in the Conservatorship
proceedings. While Plaintiff alleges that this advice was incorrect, incorrect
legal advice does not rise to the level of outrageous conduct that exceeds all
bounds of that usually tolerated in a civilized society.
The Court sustains the demurrer to this claim with leave to
amend.
Plaintiff’s unfair competition claim hinges on the conduct
alleged in his other claims. Because the Court sustains the demurrer to those
claims with leave to amend, the Court sustains the demurrer to this claim with
leave to amend.
The facts constituting the alleged fraud must be alleged
factually and specifically as to every element of fraud, as the policy of
“liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12
Cal.4th 631, 645.) “[Fraud’s] particularity requirement necessitates pleading
facts which ‘show how, when, where, to whom, and by what means the
representations were tendered.’ [Citation.]” (Stansfield v. Starkey
(1990) 220 Cal.App.3d 59, 73.) “Less specificity is required when it appears
from the nature of the allegations that the defendant must necessarily possess
full information concerning the facts of the controversy.” (Wald v. TruSpeed
Motorcars, LLC (2010) 184 Cal.App.4th 378, 394 [quotation marks omitted].)
To properly allege fraud against a corporation, the
plaintiffs must plead the names of the persons allegedly making the false
representations, their authority to speak, to whom they spoke, what they said
or wrote, and when it was said or written. (Tarmann
v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)
Plaintiff has not specifically alleged the “how, when where,
to whom, and by whom” of the alleged misrepresentations.
The Court therefore sustains the demurrer with leave to
amend.
“A notice of motion to strike must be given within the time
allowed to plead, and if a demurrer is interposed, concurrently therewith, and
must be noticed for hearing and heard at the same time as the demurrer.”
(California Rules of Court, rule 3.1322(b).)
“Unless otherwise ordered or specifically provided by law,
all moving and supporting papers shall be served and filed at least 16 court
days before the hearing.” (Code Civ. Proc., § 1005, subd. (b).)
The motion to strike was filed only seven calendar days
before the hearing date for the demurrer.
The Court is therefore unable to consider it.