Judge: Maurice A. Leiter, Case: 19STCV36838, Date: 2022-10-28 Tentative Ruling

Case Number: 19STCV36838    Hearing Date: October 28, 2022    Dept: 54

Hearing Date: October 28, 2022

Department 54, Judge Maurice A. Leiter

Motion to Strike Portions of the Third Amended Complaint

Moving Party: Defendant Larson LLP

Responding Party: Plaintiff Gianna Breliant

T/R:     DEFENDANT’S MOTION TO STRIKE IS DENIED.

DEFENDANT TO FILE AND SERVE AN ANSWER TO THE THIRD AMENDED COMPLAINT WITHIN 20 DAYS OF NOTICE OF RULING.

            DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

            On August 23, 2022, Plaintiff Gianna Breliant filed the operative third amended complaint against Defendants Arent Fox LLP and Larson O’Brien LLP, asserting causes of action for (1) breach of fiduciary duty; (2) legal malpractice; and (3) violation of Bus. & Prof. Code § 17200. This action arises out of Defendants’ representation of Plaintiff in litigation relating to the alleged wrongful death of her daughter.

REQUEST FOR JUDICIAL NOTICE

            Defendant’s requests for judicial notice are GRANTED as to the existence of the documents, but not as to the truth of the matters asserted in them.

ANALYSIS

“Any party, within the time allowed to response to a pleading, may serve and file a notice of motion to strike the whole or any part" of that pleading. (CCP § 435(b)(1).) “The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false or improper matter asserted in any pleading; (b) Strike out 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.) The Court's authority to strike improper pleadings includes the power to strike those pleadings that are "not filed in conformity with its prior ruling." (Janis v. California State Lottery Com (1998) 68 Cal.App.4th 824, 829.)

Defendant moves to strike allegations that Defendant negligently failed to designate or prepare the liability expert in the underlying action to testify about money given to the decedent by her sober companion days before her death. Plaintiff alleges the expert should have testified that giving an addict money would result in the addict’s buying drugs. Plaintiff complains that the sober companion’s decision to give decedent money was a substantial factor in decedent’s death.

Defendant asserts that these allegations are too speculative to establish that Defendant should have instructed the expert on the money gift; or that this testimony would have been admissible; or that the money gift was a substantial cause of decedent’s death. Defendant is correct that experts may not base an opinion on unfounded speculation. (See e.g. Wise v. DLA Piper LLP (US) (2013) 220 Cal.App.4th 1180, 1190-1191, 1192-1194.) But Defendant does not cite authority with analogous facts. Nor has Defendant established as a matter of law that the allegations are so speculative as to be inadmissible.

Defendant also seeks to strike allegations that Defendant negligently prepared jury instructions. Defendant argues that it cannot be held liable for preparing jury instructions because Plaintiff terminated Defendant’s representation before trial and proceeded with new counsel. In support, Defendant cites cases which hold an attorney cannot be liable for failing to file an action within the statute of limitations if the representation ends before the statute has run. (See Steketee v. Lintz, Williams & Rothberg (1985) 38 Cal.3d 46, 57; Stuart v. Superior Court (1992) 14 Cal.App.4th 124, 127–28.) Again, Defendant does not cite cases with facts analogous to the ones here. These cases do not foreclose as a matter of law that Defendant can be held liable for events after representation ends.

Defendant’s motion to strike is DENIED.