Judge: Mark E. Windham, Case: 24STLC05623, Date: 2024-10-30 Tentative Ruling
Case Number: 24STLC05623 Hearing Date: October 30, 2024 Dept: 26
Zhang v. Shen, et al.
DEMURRER
(CCP § 430.10, et seq.)
TENTATIVE RULING:
Defendant Ping C. Shen’s Demurrer
to the COMPLAINT IS SUSTAINED WITHOUT LEAVE TO AMEND.
ANALYSIS:
On August 6, 2024, Plaintiff Yan
Zhang (“Plaintiff”), in propria persona, filed the
Complaint in this action against Defendant Ping C. Shen (“Defendant”). On
September 19, 2024, Defendant filed the instant Demurrer to the Complaint. No
opposition has been filed to date.
Discussion
Allegations
in the Complaint
Although
not the clearest of pleadings, the Complaint appears to allege the following
facts: Plaintiff hired Defendant in LASC Case No. 19STCV00777, Shih v. Chu.
(Compl., p. 2:2-3.) The discovery document contains 70-80 percent untruth. (Id.
at p. 2:8-9.) Defendant never asked Plaintiff any questions, he directly
answered the other attorney. (Id. at p. 2:9-10.) When Plaintiff went to
Defendant’s office, he said he is so busy and has to leave. (Id. at p.
2:10-11.) Plaintiff went to the court on the September 8, 2023 trial date and
was asked by the judge, “where is your attorney?” (Id. at p. 2:12-13.)
After the trial, Plaintiff tried to speak with Defendant who told her the case
is over and to wait for his phone call. (Id. at p. 2:14-16.) Plaintiff
called Defendant many times but was told he was busy or out of town. (Id.
at p. 2:16-17.) Plaintiff’s friend reviewed the case and Plaintiff already lost
the case. (Id. at p. 2:17-18.) Defendant never let Plaintiff know. (Id.
at 18-19.) Plaintiff wants to know how many times Defendant went to Court, what
did Defendant do, and why did Plaintiff lose the case? (Id. at p.
2:19-20.) Defendant Ping lacks diligence and Plaintiff wants fair justice. (Id.
at p. 2:20-21.)
Demurrer
to the Complaint
The Complaint alleges a single cause
of action for professional negligence. The Demurrer is accompanied by a meet
and confer declaration as required by Code of Civil Procedure section 430.41.
(Demurrer, Shen Decl., ¶¶2-3.) Defendant
demurs on the grounds that the Complaint fails to allege facts sufficient to
state a cause of action and is uncertain. (Citing Code Civ. Proc., § 430.10,
subd. (e), (f).) Special demurrers, however, are not permitted in a limited
jurisdiction court. (Code Civ. Proc., § 92, subd. (c).) Therefore, the Court
will not consider the demurrer for uncertainty.
The elements of a cause of action
for legal malpractice are “(1) the duty of the professional to use such skill,
prudence, and diligence as other members of his profession commonly possess and
exercise; (2) a breach of that duty; (3) a proximate causal connection between
the negligent conduct and the resulting injury; and (4) actual loss or damage
resulting from the professional’s negligence.” (Budd v. Nixen (1971) 6
Cal. 3d 195, 200; Carlton v. Quint (2000) 77 Cal.App.4th 690, 699.) The
Complaint does not clearly allege the duty Defendant owed Plaintiff or how it was
breached. Plaintiff does not allege that Defendant was to “use such skill,
prudence, and diligence as other members of his profession commonly possess and
exercise” nor the manner in which Defendant’s conduct breached such a duty. It
is also not clear how Defendant’s alleged failings with respect to discovery,
communication, and court appearances proximately caused Plaintiff’s injuries,
or even what injuries Plaintiff suffered. Therefore, the demurrer to the
Complaint for failure to allege sufficient facts is sustained.
Leave to amend must be allowed
where there is a reasonable possibility of successful amendment. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to
show the Court that a pleading can be amended successfully. (Id.) Plaintiff has not opposed the
demurrer or otherwise shown that an amendment to the Complaint is possible.
Leave to amend is denied.
Conclusion
Defendant Ping C. Shen’s Demurrer
to the COMPLAINT IS SUSTAINED WITHOUT LEAVE TO AMEND.
Court clerk to give notice.