Judge: Lee W. Tsao, Case: 23NWCV02035, Date: 2023-10-24 Tentative Ruling
Case Number: 23NWCV02035 Hearing Date: October 24, 2023 Dept: C
TERESINA BIEL V.
LAW OFFICE OF CYNTHIA QUINTERO, A.P.C. et al.
CASE NO.: 23NWCV02035
HEARING: 10/24/2023 at 9:30 a.m.
#5
TENTATIVE ORDER
Defendants’ Demurrer to Plaintiff’s Complaint is OVERRULED as to the
second cause of action and SUSTAINED as to the third cause of action. The
Motion to Strike is GRANTED.
Moving party(s) to give notice.
Background
This matter is a legal malpractice case. Teresina Biel (“Plaintiff”)
retained the Law Office of Cynthia Quintero, A.P.C., and its sole practitioner,
Cynthia Quintero (collectively, “Defendants”) on October 12, 2018 to assist
with a dissolution proceeding. During the representation Plaintiff alleges that
Defendants ignored her requests in regard to maintaining her rights surrounding
Epstein credits and Watts charges (Complaint, ¶ 14), misrepresented Plaintiff’s
ability to restore her maiden name during divorce proceedings (Complaint, ¶¶
20-23), and placed a lien on the family residence when Defendants informed
Plaintiff they would not do so. (Complaint, ¶ 18.) Based thereon, Plaintiff
brings causes of action for (1) Legal Malpractice, (2) Breach of Fiduciary
Duty, and (3) Misrepresentation.
Defendants demur to the second and third causes of action. In the Motion
to Strike, Defendants argue that Plaintiff has failed to state facts which
support a claim for punitive damages.
Meet and Confer
“Before filing a demurrer…the demurring party shall meet and confer in
person or by telephone with the party who filed the pleading that is subject to
demurrer for the purpose of determining whether an agreement can be reached
that would resolve the objections to be raised in the demurrer.” (CCP §
430.41(a); see also CCP § 435.5 (imposing similar requirements for a motion to
strike).) In the Declaration of Rebecca G. Goldstein, Defense counsel states
that they reached out to Plaintiff’s counsel on August 17, 2023 via email and a
phone call, however, no meet and confer took place. Therefore, the requirements
of CCP § 430.41(a) and CCP § 435.5 remain unsatisfied. However, per CCP §
430.41(a)(4), “A determination by the court that the meet and confer process was
insufficient shall not be grounds to overrule or sustain a demurrer.” Therefore,
the Court will turn to the merits of the Demurrer and Motion to Strike.
Legal Standard for Demurrer
“[A] demurrer tests the legal sufficiency of the allegations in a
complaint.” (Lewis v. Safeway, Inc.
(2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge
defects that appear on the face of the pleading under attack or from matters
outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in
ruling on a demurrer, a court may not consider declarations, matters not
subject to judicial notice, or documents not accepted for the truth of their
contents].) For purposes of ruling on a demurrer, all facts pleaded in a
complaint are assumed to be true, but the reviewing court does not assume the
truth of conclusions of law. (Aubry v.
Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)
Second Cause of Action
The elements of a cause of action for breach of fiduciary duty are the
existence of a fiduciary relationship, breach of fiduciary duty, and damages. (Oasis West Realty, LLC v. Goldman (2011)
51 Cal.4th 811, 820.) Examples of relationships that impose a fiduciary
obligation to act on behalf of and for the benefit of another are “a joint
venture, a partnership, or an agency. (Cleveland v. Johnson, (2012) 209
Cal.App.4th 1315, 1339.)
Defendants argue that the second cause of action for breach of fiduciary
duty should be dismissed because it is duplicative of the first cause of action
for legal malpractice. However, the
authority cited in support of this argument has been depublished. (Broadway
Victoria LLC v. Normington, Wiita & Fuster (April 19, 2017), B266060,
opn. ordered nonpub. July 26, 2017.) Plaintiff
argues that legal malpractice and breach of fiduciary duty are separate and
distinct causes of action. (Knutson v. Foster (2018) 25 Cal.App.5th
1075.) Ample case law supports this distinction. (See Stanley v. Richmond (1995) 35
CA4th 1070, 1086; Mireskandari v. Edwards Wildman Palmer LLP (2022) 77
Cal.App.5th 247, 265; and Mosier v. Southern California
Physicians Ins. Exchange (1998) 63 Cal.App.4th 1022, 1044.)
Defendants argue that Plaintiff’s claim for breach of fiduciary duty
cannot be maintained by simply alleging legal malpractice; rather, the breach
must relate to the duties that give life to a fiduciary duty – duties of
loyalty and confidentiality. (Stanley
v. Richmond (1995) 35 Cal.App.4th 1070.) After reviewing the
Complaint, the Court is satisfied that all elements of breach of fiduciary duty
are sufficiently alleged. Defendants
owed a fiduciary duty to Plaintiff by virtue of their attorney-client
relationship. Defendants breached their
fiduciary duty of loyalty by ignoring Plaintiff’s wishes regarding her Epstein/Watts
rights and by failing to inform Plaintiff that the settlement agreement
contained a waiver of these rights. (Complaint,
¶ 14.) Although the underlying case is
still pending, damages would be apparent if an adverse judgment, including the
prepared settlement which Plaintiff alleges disregards her wishes, was
enforced. Therefore, the Demurrer to the second cause of action is OVERRULED.
Third Cause of Action
The third cause of action pertains to payment for the legal services
provided by Defendants. The cause of action is misrepresentation. “The elements
of a cause of action for intentional misrepresentation are (1) a
misrepresentation, (2) with knowledge of its falsity, (3) with the intent to
induce another’s reliance on the misrepresentation, (4) actual and justifiable
reliance, and (5) resulting damage.” (Daniels
v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166.) 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.) 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 alleges Defendant Quintero falsely represented that Defendant
Quintero would not place an attorney’s lien on Plaintiff’s family residence, Plaintiff
could only change her married name after the divorce process was completed, and
Defendant Quitero would protect Plaintiff’s Watts/Epstien rights. (Complaint,
¶¶ 37-39.) Defendants argue that Plaintiff does not state sufficient facts to
maintain this cause of action. The Court agrees. As alleged, the Complaint fails to allege facts demonstrating that Defendant
Quintero knew her statements were false at the time she made them. Accordingly, the Demurrer to the third cause
of action is SUSTAINED with 30 days leave to amend.
Motion to Strike
The court may, upon motion, or at any time in its discretion, and upon
terms it deems proper, strike any irrelevant, false, or improper matter
inserted in any pleading. (CCP § 436, subd. (a).) The court may also strike all
or any part of any pleading not drawn or filed in conformity with the laws of
this state, a court rule, or an order of the court. (CCP § 436, subd. (b).) The
grounds for a motion to strike are that the pleading has irrelevant, false, or
improper matter, or has not been drawn or filed in conformity with laws. (CCP §
436.) The grounds for moving to strike must appear on the face of the pleading
or by way of judicial notice. (CCP § 437.)
A motion to
strike punitive damages may be granted where the alleged facts do not support
conclusions of malice, fraud or oppression. (Turman v. Turning Point of
Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.)
In the Motion to Strike, Defendants target allegations
of intentional and fraudulent conduct and the request for punitive damages. CIV § 3294 governs punitive damages and provides the following: “In an
action for the breach of an obligation not arising from contract, where it is
proven by clear and convincing evidence that the defendant has been guilty of
oppression, fraud, or malice, the plaintiff, in addition to the actual damages,
may recover damages for the sake of example and by way of punishing the defendant.”
(CIV § 3294(a).) “Fraud” means an intentional misrepresentation, deceit, or
concealment of a material fact known to the defendant with the intention on the
part of the defendant of thereby depriving a person of property or legal rights
or otherwise causing injury. (CIV § 3294(c)(1).)
Fraud is
subject to a heightened pleading requirement and may not be pleaded in a
general or conclusory fashion. (Glaski v. Bank of America (2013) 218
Cal.App.4th 1079, 1090.) Plaintiff seeks
punitive damages in connection with the third cause of action. As discussed earlier, Plaintiff fails to allege
facts demonstrating that Defendant Quintero knew her statements were false at
the time she made them. Accordingly,
Defendants’ motion to strike is GRANTED with 30 days leave to amend.