Judge: Maurice A. Leiter, Case: 22STCV04908, Date: 2022-08-18 Tentative Ruling

Case Number: 22STCV04908    Hearing Date: August 18, 2022    Dept: 54

Hearing Date: August 18, 2022

Department 54, Judge Maurice A. Leiter

Motion for Leave to Add Counsel as a Cross-Defendant

Moving Party: Defendant/Cross-Complainant Candice Heiden

Responding Party: Plaintiff/Cross-Defendant Crystal Roseborough

T/R:     CROSS-COMPLAINANT’S MOTION FOR LEAVE TO ADD COUNSEL AS A CROSS-DEFENDANT UNDER CIV. CODE § 1714.10(a) IS DENIED.

            CROSS-COMPLAINANT 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.

Civ. Code § 1714.10 provides,  

(a) No cause of action against an attorney for a civil conspiracy with his or her client arising from any attempt to contest or compromise a claim or dispute, and which is based upon the attorney’s representation of the client, shall be included in a complaint or other pleading unless the court enters an order allowing the pleading that includes the claim for civil conspiracy to be filed after the court determines that the party seeking to file the pleading has established that there is a reasonable probability that the party will prevail in the action. The court may allow the filing of a pleading claiming liability based upon such a civil conspiracy following the filing of a verified petition therefor accompanied by the proposed pleading and supporting affidavits stating the facts upon which the liability is based. The court shall order service of the petition upon the party against whom the action is proposed to be filed and permit that party to submit opposing affidavits prior to making its determination. The filing of the petition, proposed pleading, and accompanying affidavits shall toll the running of any applicable statute of limitations until the final determination of the matter, which ruling, if favorable to the petitioning party, shall permit the proposed pleading to be filed. . . . 

(c) This section shall not apply to a cause of action against an attorney for a civil conspiracy with his or her client, where (1) the attorney has an independent legal duty to the plaintiff, or (2) the attorney’s acts go beyond the performance of a professional duty to serve the client and involve a conspiracy to violate a legal duty in furtherance of the attorney’s financial gain. 

Under Civ. Code § 1714.10(a) “the trial court is not weighing conflicting evidence, determining credibility or drawing inferences.  It is performing a ‘gatekeeping’ function, filtering out frivolous allegations of conspiracy but without subjecting them to the ‘fact adjudicative screen’ that would violate the right to a jury trial.”  (Burtscher v. Burtscher (1994) 26 Cal.App.4th 720, 726.) 

            Cross-Complainant Candice Heiden moves for leave to add attorney David Huynh as a cross-defendant. The cross-complaint alleges a civil conspiracy involving Crystal Roseborough and Huynh to wrongfully oust Heiden from LA Roller Girls Entertainment LLC, Heiden and Roseborough’s company.

Heiden argues she need not comply with Civ. Code § 1714.10 because the action falls within the exception in subsection (c)(1); she contends Huynh owed Heiden an independent legal duty. Heiden asserts Huynh represented LA Roller Girls Entertainment by assisting Roseborough in filing corporate documents with the Secretary of State. By representing the entity, Heiden says Huynh owed her an independent legal duty as a 50% member of the entity.

In opposition, Roseborough asserts that no independent duty existed between Huynh and Heiden because Huynh only represented Roseborough. Roseborough also argues that Heiden has failed to show a reasonable probability of prevailing.

This motion asks the Court to grant Heiden leave to add Huynh as a cross-defendant. Applying subsection (a), Heiden has failed to establish a probability of success on the merits, citing only the verified cross-complaint as evidence.

Based on the limited briefing provided, the Court cannot determine whether this action falls within one of the exceptions in subsection (c)(1). Should Plaintiff add Huynh through a Doe amendment, Huynh may challenge the amendment in a demurrer or motion to strike. Heiden’s motion is DENIED.