Judge Lynne M. Hobbs, Case Number: 24STCV05021, Date: 2024-12-19 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 24STCV05021, Date: 2024-12-19 Tentative Ruling

Case Number: 24STCV05021 Hearing Date: December 19, 2024 Dept: 61

MAJID GHAMAMI vs F. BARI NEJADPOUR, et al.

TENTATIVE

Defendants F. Bari Nejadpour, Nejadpour & Associates, and Law Offices of LA Law’s Motion for Judgment on the Pleadings is GRANTED with leave to amend as to the first, third, fourth, and fifth causes of action, within 20 days, and is otherwise DENIED.

Moving party to give notice.

DISCUSSION

A party may move for a judgment on the pleadings as to an entire complaint or as to a particular cause of action in a complaint. (Code Civ. Proc. § 438 subd. (c)(2)(A).) If a defendant moves for a judgment on the pleadings and argues that a complaint does not state facts sufficient to constitute a cause of action against that defendant, then the court should grant a defendant’s motion only if the court finds as a matter of law that the complaint fails to allege facts sufficient to constitute the cause of action. (See id., § 438 subd. (c)(1)(B)(ii); see also Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 677.)

“The standard for granting a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law.” (Bezirdjian v. O’Reilly (2010) 183 Cal.App.4th 316, 321.) When considering a motion for judgment on the pleadings, the court not only should assume that all facts alleged in the SAC are true but also should give those alleged facts a liberal construction. (See Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515–516, 101 Cal.Rptr.2d 470, 12 P.3d 720.) In particular, the court should liberally construe the alleged facts “‘with a view to attaining substantial justice among the parties.’ [Citation.]” (See Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1232, 44 Cal.Rptr.2d 352, 900 P.2d 601.)

Defendants F. Bari Nejadpour, Nejadpour & Associates, and Law Offices of LA Law (Defendants) move for judgment on the Complaint of Plaintiff Majid Ghamami (Plaintiff) on the following grounds. They argue that Plaintiff’s claims are time-barred because they were not brought within the 30-day time limit following fee arbitration in Business & Professions Code § 6204. (Motion at pp. 4–6.) They argue that the division of the present action and the prior fee arbitration is an impermissible act of claim-splitting. (Motion at pp. 6–7.) They further argue that the first, third, and fourth causes of action for breach of contract, breach of covenant of fair dealing, and breach of fiduciary duty are barred by the one-year limitations period applicable to actions against attorneys for the provision of professional services under Code of Civil Procedure § 340.6. (Motion at pp. 7–9.) And they finally argue that the fifth cause of action for fraud is not pleaded with sufficient particularity. (Motion at p. 9.)

Business & Professions Code § 6204 provides that following an attorney-client fee arbitration, if there is no agreement to be bound by the arbitration, a trial on the amount in question “shall be initiated by the commencement of an action in the court having jurisdiction over the amount of money in controversy within 30 days after service of notice of the award.” (Bus. & Prof. Code § 6204, subd. (c).) Plaintiff alleges that the arbitration took place and reached an “erroneous judgment” (Complaint ¶ 9), while Defendants present the arbitrator’s award, reached on October 27, 2022. (RJN Exh. B.) Defendants argue that the present action, brought on February 28, 2024, more than 30 days after the arbitration award, is untimely. (Motion at pp. 4–6.)

This argument is persuasive only insofar as Plaintiff seeks to overturn the arbitrator’s ruling as to Defendants’ entitlement to keep their retainer fee, which was the subject matter of the arbitration. Such proceedings are statutorily limited to the subject matter of the fees and costs at issue, to the exclusion of any affirmative relief: “Evidence relating to claims of malpractice and professional misconduct, shall be admissible only to the extent that those claims bear upon the fees, costs, or both, to which the attorney is entitled. The arbitrators shall not award affirmative relief, in the form of damages or offset or otherwise, for injuries underlying the claim.” (Bus. & Prof. Code, § 6203, subd. (a).) Even if the arbitrator makes findings on issues of malpractice or other misconduct, “the award and determinations of the arbitrators shall not be admissible nor operate as collateral estoppel or res judicata in any action or proceeding.” (Bus. & Prof. Code, § 6204, subd. (e).)

Courts have therefore held that claims for affirmative relief not directed to vacating the arbitration award — i.e. the return of fees awarded by the arbitrator — are not barred if brought outside the 30-day deadline: “Any other damages suffered by [the client] as the result of breach of contract, fraud or malpractice by the attorneys is, as the MFA clearly recognizes, a separate claim, to which the statute of limitations for the respective claim applies.” (Liska v. The Arns Law Firm (2004) 117 Cal.App.4th 275, 289.)

Here, the Complaint alleges that the arbitration reached an “erroneous judgment,” and seeks at several points the return of the $11,000 retainer fee that was the subject matter of that arbitration. (Complaint ¶¶ 16, 20, 33.) In this respect, the Complaint seeks relief it cannot obtain. But the Complaint is not solely addressed to a refund of the retainer fee, but also seeks damages resulting from the unfavorable judgment entered against Plaintiff. (Ibid.) The only claim solely addressed to the retainer fee is the first cause of action for breach of contract. (Complaint ¶ 16.) The other claims are not subject to judgment because a portion of the relief they seek is barred. (See Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119 [“A demurrer must dispose of an entire cause of action to be sustained.”].) The only claim solely directed to the refund of the funds already decided by the arbitration is the first cause of action for breach of contract. (Complaint ¶ 16.) Accordingly, the motion is GRANTED as to the first cause of action for breach of contract, with leave to amend.

Defendant’s argument from claim-splitting is, as the court understands it, based on the contention that Plaintiff has divided his claim arising from the retainer fee into seven different causes of action. (Motion at pp. 6–7.) But this is not claim-splitting; it is merely pleading several alternative legal theories as alternative counts in a complaint, as is common in civil litigation. “A plaintiff is permitted to plead alternative inconsistent theories.” (Dubin v. Robert Newhall Chesebrough Trust (2002) 96 Cal.App.4th 465, 477.) This argument thus furnishes no basis to dismiss any claim.

But Defendants’ argument as to the application of the true statute of limitations is persuasive as to the third and fourth causes of action. The statute of limitations for such claims is as follows:

An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first.

(Code Civ. Proc. § 340.6, subd. (a).) Here, Plaintiff’s claims accrued when judgment was entered against him, and Defendants refused to return the money they allegedly promised, all of which occurred prior to the October 2022 arbitration award. (RJN Exh. B.) More than one year elapsed between the entry of that award and the filing of the present action on February 28, 2024. Thus the third and fourth causes of action are time-barred, and the motion is GRANTED as to the third and fourth causes of action, with leave to amend.

Defendants’ final argument on the fraud claim is also persuasive. The elements of fraud are “(1) a representation, (2) that is false, (3) made with knowledge of its falsity, and (4) with an intent to deceive, coupled with (5) actual detrimental reliance and (6) resulting damage.” (Lim v. The.TV Corp. Internat. (2002) 99 Cal.App.4th 684, 694.) Fraud causes of action must be pleaded with particularity, meaning that the plaintiff must allege “how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) The Complaint does not plead specifically either the nature of the representations allegedly made, alleging instead that Defendants represented by unspecified means their qualifications and guaranteed victory in the suit, without stating where or how these representations were made, or who made them. (Complaint ¶¶ 5, 6.)

The motion is therefore GRANTED with leave to amend as to the first, third, fourth, and fifth causes of action.