Judge: Lynette Gridiron Winston, Case: 24PSCV03070, Date: 2025-01-16 Tentative Ruling

Case Number: 24PSCV03070    Hearing Date: January 16, 2025    Dept: 6

CASE NAME:  Louis R. Jacobs v. Jeffrey Helmuth, et al. 

Defendants Jeffrey Helmuth and Cynthia Helmuth’s Demurrer to Complaint 

TENTATIVE RULING 

The Court OVERRULES Defendants Jeffrey Helmuth and Cynthia Helmuth’s demurrer to the complaint. Defendants must file and serve an answer to the complaint within 10 days of the Court’s order. 

            Plaintiff Louis R. Jacobs is ordered to give notice of the Court’s ruling within five calendar days of this order. 

BACKGROUND 

This is a breach of contract case. On September 17, 2024, plaintiff Louis R. Jacobs (Plaintiff) filed this action against defendants Jeffrey Helmuth (Jeffrey) and Cynthia (Cynthia) Helmuth (collectively, Defendants), alleging one cause of action for breach of contract. 

On November 22, 2024, Defendants demurred to the complaint. On December 4, 2024, and December 23, 2024, Plaintiff opposed the demurrer. On December 26, 2024, Defendants replied. On January 8, 2025, Plaintiff responded to Defendants’ reply. 

LEGAL STANDARD 

            A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (Donabedian).) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id. at pp. 993-994.) 

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. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862, disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287 [error to consider contents of release not part of court record].) 

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits”].) 

A demurrer can only be sustained when it disposes of an entire pleading, cause of action, or affirmative defense. (See Cal. Rules of Court, rule 3.1320, subd. (a); Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046-1047.)  

PRELIMINARY ISSUES 

            The Court did not authorize Plaintiff to file a response to Defendants’ reply and therefore declines to consider Plaintiff’s response. (See Guimei v. Gen. Elec. Co. (2009) 172 Cal.App.4th 689, 703 [court retains discretion to consider sur-reply.) 

DISCUSSION 

Meet and Confer 

Per Code of Civil Procedure section 430.41, subdivision (a), Defendants were required to meet and confer in person, by telephone, or by video conference before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court finds Defendants’ efforts to meet and confer sufficient. (Leech Decl., ¶ 3.) 

First Cause of Action – Breach of Contract 

“A cause of action for breach of contract requires pleading of a contract, plaintiff's performance or excuse for failure to perform, defendant's breach and damage to plaintiff resulting therefrom. A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489, internal citations omitted.) Illegal contracts are generally not enforceable. (Agam v. Gavra (2015) 236 Cal.App.4th 91, 112; but see Dunkin v. Boskey (2000) 82 Cal.App.4th 171, 196 [“an illegal contract may be enforced to avoid unjust enrichment or unconscionable injury”].) No person may practice law in the State of California unless they are licensed to do so. (Bus. & Prof., § 6125.) 

Defendants demur to the First Cause of Action for breach of contract on the grounds that the alleged contract is illegal and unenforceable because it constitutes the unauthorized practice of law. Defendants contend the complaint alleges that Plaintiff helped Defendant Cynthia to not pay a broker commission to CBRE, and that Plaintiff did so by writing numerous letters for Cynthia, participating in numerous calls with CBRE, and numerous calls and texts of encouragement and advice on how to get the commission back. Defendants contend these actions constitute the unauthorized practice of law, and that the complaint does not allege Plaintiff is a licensed attorney. Defendants then contend that the fee agreement at issue is an illegal contract and is therefore unenforceable. 

In opposition, Plaintiff contends he never claimed to be a lawyer or acted as a lawyer. Plaintiff contends he simply wrote down facts and helped Cynthia write letters regarding actions of CBRE and never made any legal references. Plaintiff contends he never told or assisted in preparation of any legal instruments or gave any advice on legal matters. Plaintiff contends he was merely writing the facts that the Defendants had expressed verbally. Plaintiff further contends he never tried to negotiate for the Defendants, but simply wrote down the Defendants’ thoughts. Plaintiff then contends Defendants always knew Plaintiff was not a lawyer, and that the correspondence he wrote for them was created after numerous discussions between the parties. Plaintiff also contends the agreement was not a commission or a fee, but was suggested by Jeffrey and the parties agreed to give Plaintiff half of the commission if it was returned. 

The Court finds Defendants’ demurrer unavailing. It is unclear to the Court from the facts alleged in the complaint whether Plaintiff was engaged in the unauthorized practice of law. The allegations of writing letters, participating in phone calls, or providing advice are vague and ambiguous, and do not necessarily constitute the unauthorized practice of law. (Compl., ¶¶ BC-1, BC-2, BC-4; see, e.g., In re Thomson (Cal. Bar Ct. 2006), No. 02-O-10930, 2006 WL 2370242, at *7, italics added [suspended attorney who wrote letters on office letterhead engaged in unauthorized practice of law]; Birbrower, Montalbano, Condon & Frank v. Superior Ct. (1998) 17 Cal.4th 119, 129 [virtually entering state by telephone does not automatically result in unauthorized practice of law]; People v. Landlords Pro. Servs. (1989) 215 Cal.App.3d 1599, 1609 [“Our research has found no case in which one friend was either enjoined from giving legal advice to a friend or prosecuted for the giving of such advice”].) Where the allegations are ambiguous, the preferred route is to let the matter proceed to discovery. (Cf. Lickiss v. Fin. Indus. Regul. Auth. (2012) 208 Cal.App.4th 1125, 1135 [demurrers for uncertainty generally disfavored because ambiguities can be clarified through modern discovery].) As such, the complaint does not allege sufficient facts to show that the alleged contract was illegal. 

The Court otherwise finds the complaint alleges sufficient facts to state a cause of action for breach of contract. The complaint alleges an agreement between the parties for Plaintiff to receive half of the returned commission fee from CBRE, if any, Plaintiff provided the agreed upon assistance, the commission was returned, and Defendants have not paid Plaintiff as promised. (Compl., ¶¶ BC-1 – BC-6.) 

Based on the foregoing, the Court OVERRULES the demurrer. 

CONCLUSION 

The Court OVERRULES Defendants Jeffrey Helmuth and Cynthia Helmuth’s demurrer to the complaint. Defendants must file and serve an answer to the complaint within 10 days of the Court’s order. 

            Plaintiff Louis R. Jacobs is ordered to give notice of the Court’s ruling within five calendar days of this order.