Judge: Maurice A. Leiter, Case: 21STCV04534, Date: 2022-10-20 Tentative Ruling

Case Number: 21STCV04534    Hearing Date: October 20, 2022    Dept: 54

Hearing Date: October 20, 2022

Department 54, Judge Maurice A. Leiter

Motion for Sanctions

Moving Party: Defendants John K. Paulson, Rachel E. Boden and Ford Walker Haggerty & Behar LLP

Responding Party: None

T/R:    DEFENDANTS’ MOTION FOR SANCTIONS IS DENIED.

PLAINTIFF TO SERVE VERIFIED RESPONSES, WITHOUT OBJECTION, TO THE SUBJECT DISCOVERY WITHIN 15 DAYS OF NOTICE OF RULING.

DEFENDANTS 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. No opposition has been received.

BACKGROUND

            On May 20, 2022, Plaintiff Mahrou Hanassab filed the operative first amended complaint against Defendants John K. Paulson, Rachel E. Boden, and Ford Walker Haggerty & Behar LLP, asserting causes of action for legal malpractice and breach of fiduciary duty. Plaintiff alleges Defendants represented Plaintiff in a personal injury action as a defendant. The jury awarded damages against Plaintiff in an amount that exceeded the limit of Plaintiff’s insurance policy. Plaintiff alleges Defendants were negligent in defending the personal injury action.

ANALYSIS

It is a misuse of the discovery process to fail “to respond or to submit to an authorized method of discovery,” (CCP § 2023.010(d)) or to disobey “a court order to provide discovery.”  (CCP § 2023.010(g).)  Under CCP § 2023.030, courts have the authority to issue monetary sanctions, evidentiary sanctions, or terminating sanctions after giving parties proper notice and the opportunity to be heard.

In determining whether sanctions should be imposed, courts consider the totality of the circumstances, including the “conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.”  (Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246.)   “The penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.”  (Wilson v. Jefferson (1985) 163 Cal. App. 3d 952, 959.)

Defendants move for terminating sanctions, or alternatively evidence and issue sanctions, on the ground that Plaintiff failed to comply with the Court’s March 28, 2022 order to provide responses to discovery and pay sanctions. Defendants assert that Plaintiff has been consistently uncooperative and noncommunicative with respect to discovery, and sanctions are necessary to remedy these abuses.

The Court declines to award additional sanctions at this juncture. The Court will grant Plaintiff one more opportunity to comply with her discovery obligations. If Plaintiff again fails to comply, the Court may revisit the imposition of sanctions.

Defendants’ motion for sanctions is DENIED. Plaintiff is ordered to comply with the Court’s March 28, 2022 order within 15 days of notice of ruling.

Hearing Date: October 20, 2022

Department 54, Judge Maurice A. Leiter

Demurrer to First Amended Complaint and Motion to Strike

Moving Party: Defendants John K. Paulson, Rachel E. Boden and Ford Walker Haggerty & Behar LLP

Responding Party: Plaintiff Mahrou Hanassab

T/R:    DEFENDANTS’ DEMURRER IS SUSTAINED WITH LEAVE TO AMEND.

DEFENDANTS’ MOTION TO STRIKE IS GRANTED.

PLAINTIFF TO FILE AND SERVE A SECOND AMENDED COMPLAINT WITHIN 30 DAYS OF NOTICE OF RULING. DEFENDANTS TO FILE AND SERVE A RESPONSE WITHIN 30 DAYS THEREAFTER.

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.

            DEFENDANTS to notice. 

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

BACKGROUND

            On May 20, 2022, Plaintiff Mahrou Hanassab filed the operative first amended complaint against Defendants John K. Paulson, Rachel E. Boden, and Ford Walker Haggerty & Behar LLP, asserting causes of action for legal malpractice and breach of fiduciary duty. Plaintiff alleges Defendants represented Plaintiff in a personal injury action as a defendant. The jury awarded damages against Plaintiff in an amount that exceeded the limit of Plaintiff’s insurance policy. Plaintiff alleges Defendants were negligent in defending the personal injury action.

ANALYSIS

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

A. Second Cause of Action for Breach of Fiduciary Duty

The elements for a breach of fiduciary duty cause of action are “the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach.” (Thomson v. Canyon (2011) 198 Cal.App.4th 594, 604.)  

Defendants demur to the second cause of action on the ground that Plaintiff has not adequately alleged that Defendants breached the fiduciary duties of loyalty and confidentiality owed by an attorney to their client. In opposition, Plaintiff argues that Defendants made a myriad of mistakes in the underlying action, including failure to conduct proper discovery, failure to retain experts, and failure to take depositions. These are allegations of malpractice. Plaintiff also alleges Defendants did not consider the potential conflicts of interest between Plaintiff and her insurer. This is vague and does not establish a breach of a fiduciary duty.

The demurrer to the second cause of action is SUSTAINED with leave to amend.

B. Motion to Strike

“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.) 

Defendants move to strike Plaintiff’s claims for punitive damages and emotional distress damages. As Plaintiff has alleged only negligent conduct, Plaintiff has failed to allege entitlement to punitive damages.

“…[E]motional distress damages are not generally recoverable in cases of attorney malpractice related to litigation. (Camenisch v. Superior Ct. (1996) 44 Cal.App.4th 1689, 1697.)

Defendants’ motion to strike is GRANTED.