Judge: Mel Red Recana, Case: 22STCV04512, Date: 2024-06-11 Tentative Ruling
Case Number: 22STCV04512 Hearing Date: June 11, 2024 Dept: 45
Hearing
date: June
11, 2024
Moving
Party: Defendant
Klapach & Klapach, P.C.
Responding
Party: Plaintiff
Chelle Johnson
Defendant’s
Demurrer to Plaintiff’s First Amended Complaint
The Court
considered the moving papers, opposition, and reply. Defendant’s Demurrer to
Plaintiff’s First Amended Complaint is SUSTAINED without leave to
amend.
Background
Chelle
Johnson (Plaintiff) filed a Complaint on March 1, 2023 against Klapach &
Klapach, P.C. (Defendant) for the sole cause of action for legal malpractice.
On March 11, 2024, the Court sustained a demurrer to the initial Complaint,
granting leave to amend. The First Amended Complaint (FAC) was filed on March
29, 2024 with the same single cause of action for legal malpractice. Defendant
now demurs to the FAC, Plaintiff opposes the demurrer, and Defendant files a
reply.
The
case stems from Dr. Fred Parrott (Testator) who hired and utilized the services
of Defendant for over ten years. (FAC, ¶ 7.) Defendant is a law firm who
specializes in wills, trusts, and estate planning. In January of 2021, Testator
sought to further amend his trust by way of a Fifth Amendment to the Fourth
Amendment and Complete Restatement of the Fred D. Parrott Living Trust, Dated
May 16, 2014 (Id., at ¶ 8) and then amend further by way of a Sixth
Amendment to the Fourth Amendment and Complete Restatement of the Fred D.
Parrott Living Trust, Dated May 16, 2014 Id., at ¶ 11) (collectively,
the Amendments). Plaintiff alleges that the Amendments were to make Plaintiff
an express beneficiary of a monetary gift of $15,000.00. (Id. at ¶ 8.) The
Court notes that the $15,000.00 gift is not at issue. However, Plaintiff
alleges that the Amendments allocated an additional monetary bequeath to
Plaintiff of $500,000.00 which was representative of the amount of the
real-estate commissions for the Properties that were to be sold pursuant to the
Amendment. (Id. ¶ 14.) This gift is at issue.
Plaintiff
then alleges that Carl Patten (Patten or Trustee) was to be Trustee of the Fred
D. Parrott Living Trust, Dated May 16, 2014 (the Trust) if Testator was unable
to do so. (Id. at ¶23.) After Testator’s passing on January 30, 2022,
Plaintiff alleges that Patten failed to carry out their duties as trustee and
went on to fire Defendant. (Id. at ¶ 29.) Finally, Plaintiff alleges
that in drafting the Amendment, Defendant failed to draft the bequest of
$500,000.00 in a manner that the gift would have been perfected and not lost. (Id.
at ¶ 30.)
Requests
for Judicial Notice
Both parties file a request for judicial
notice. Plaintiff objects to the request for Defendant’s judicial notice.
Defendant’s requests asks the Court to judicially notice the following:
1.
Petition for: (1) Instructions
Regarding Use of Petitioner Chelle Johnson As Broker to Sell Trust Real
Property; or Alternatively, (2) For Modification of Trust and exhibit attached
thereto in the Los Angeles County Superior Court matter entitled In re: The
Fred D. Parrott Living Trust, dated October 8, 2014, as restated and amended
LASC Case No. 22STPB06275.
2.
Objection of Trustee Carl W. Patten, Jr. To Petition
of Chelle Johnson for Instructions Or, Alternatively, Modification of Trust in
the Los Angeles County Superior Court matter entitled In re: The Fred D.
Parrott Living Trust, dated October 8, 2014, as restated and amended LASC Case
No. 22STPB06275.
3.
Fourth Amendment to Fourth Amendment and Complete
Restatement of The Fred D.
Parrott Living Trust, dated May 16, 2014.
The
Court notes that none of the above exhibits were attached to Defendant’s
request for judicial notice or any other filings within the Court’s docket,
therefore judicial notice is denied, and Plaintiff’s objections are denied as
moot.
Plaintiff
requests that this Court judicially notice the initial Complaint filed on March
1, 2023. Judicial notice is denied because it is unnecessary for the Court to
judicially notice documents it inherently references when ruling on a demurrer.
Discussion
Legal Standard and Analysis for
Meet and Confer
“Before filing a demurrer…the
demurring party shall meet and confer in person or by telephone with the party
who filed the pleading that is subject to demurrer for the purpose of
determining whether an agreement can be reached that would resolve the objections
to be raised in the demurrer.” (CCP § 430.41(a).) Defendant provides the
Declaration of Harold C. Trimmer (Trimmer Decl.) which states that the parties
conferred on April of 2023 regarding the initial Complaint and initial demurrer
but were unable to come to an agreement. However, no agreement was reached.
Although this pertains to the initial Complaint and not the operative FAC, the
Court will turn its attention to the demurrer.
Legal Standard for Demurrer
“[A] demurrer tests the legal
sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015)
235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects
that appear on the face of the pleading under attack or from matters outside
the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins.
Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not
consider declarations, matters not subject to judicial notice, or documents not
accepted for the truth of their contents].) For purposes of ruling on a
demurrer, all facts pleaded in a complaint are assumed to be true, but the
reviewing court does not assume the truth of conclusions of law. (Aubry v.
Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)
Analysis for Demurrer
“To state a cause of action for
legal malpractice, a plaintiff must plead (1) the duty of the attorney to use
such skill, prudence, and diligence as members of his or her profession
commonly possess and exercise; (2) a breach of that duty; (3) a proximate
causal connection between the breach and the resulting injury; and (4) actual
loss or damage resulting from the attorney’s negligence.” (Kumaraperu v.
Feldsted (2015) 237 Cal.App.4th 60, 66, quotation marks omitted.)
Defendant demurs to the FAC on two main
grounds: (1) the FAC fails to properly allege that Defendant owed Plaintiff a
duty of care and (2) the FAC fails to demonstrate how Defendant’s conduct was
the cause of Plaintiff’s injuries. The Court agrees and sustains the demurrer
without leave to amend.
(1) Duty of Care and The Biakanja/Lucas Factors
Upon opposition to this demurrer,
Plaintiff presents similar arguments raised against the prior demurrer,
specifically regarding the parties’ contentions around Chang v. Lederman
(2009) 172 Cal.App.4th, 67 (“Chang”). Plaintiff argues that Chang’s
facts are distinguishable and that Chang’s applicability here is
limited. The Court disagrees. Chang
stands for the proposition that an attorney who drafts a will or trust owes no
duty of care to a nonclient potential beneficiary in absence of an executed
will or trust instrument expressly reflecting the testator’s intent to benefit
the nonclient. Whether an attorney owes a duty to a nonclient beneficiary is a
question of law and a matter of policy that involves the balancing of six
factors, which are known as the Biakanja/Lucas factors. These factors
are: “[1] the extent to which the transaction was intended to affect the
plaintiff, [2] the foreseeability of harm to him, [3] the degree of certainty
that the plaintiff suffered injury, [4] the closeness of the connection between
the defendant's conduct and the injury, [5] the policy of preventing future harm,
and [6] whether the recognition of liability to beneficiaries of wills
negligently drawn by attorneys would impose an undue burden on the profession.”
(Chang, supra, at 83-84.)
In the Court’s prior order, the
Court analyzed and addressed whether the Biakanja/Lucas factors weighed
in favor of Plaintiff or Defendant and concluded that they weighed in favor of
Defendant. In light of the new allegations in the FAC, the Court reviews that
analysis here.
i.
the
extent to which the transaction was intended to affect the plaintiff
In the FAC, Plaintiff now frames the
transaction as one in which she was to receive $500,000.00. However, the FAC
makes clear that this was not a flat monetary gift, but the expected
commissions of the Properties that were to be sold by her as realtor. (FAC, ¶ 14.)
This weighs against Plaintiff.
ii.
the
foreseeability of harm to him
The foreseeability of harm is unclear, because the
primary difference between the two parties contentions is that Plaintiff
alleges the Amendments should have “required” Plaintiff to be the realtor,
instead Plaintiff alleges Defendant’s only “encouraged” the Trustee to engage
Plaintiff as the realtor. (FAC, ¶ 22.) However, by the FAC’s own
allegations, that was not what Testator desired. “The Trustee is authorized and
encouraged to engage the services of Fred Leeds and Chelle Johnson as
real estate brokers…” (FAC, ¶22(d), emphasis added.) Here, Chang itself
closes off any liability because when the claim is, as it is here, that the
Amendments were properly executed and free of legal defects, but simply do not
accurately express the testator’s intent, there is no liability on defendant to
the nonclient beneficiary. (Chang, supra, 82.) Even more, per the FAC,
it appears as though the Amendments were drafted exactly as Testator had
intended. This weighs against Plaintiff.
iii.
the
degree of certainty that the plaintiff suffered injury
Here, the degree of certainty is low
because before the completion of the Amendments, the Patten fired Defendant.
Additionally, it appears, per the FAC, that Defendant had in fact drafted the
Amendments as per Testator’s wishes. (FAC, ¶22.) However, without explanation, Patten
discharged Defendant. (FAC, ¶ 29.) This factor weighs against Plaintiff, as it
appears the injury was caused by Patten, not Defendant.
iv.
the
closeness of the connection between the defendant's conduct and the injury
The FAC provides no facts supporting
a connection between Defendant’s conduct and the injury (see further discussion
below). This weighs against Plaintiff.
v.
the
policy of preventing future harm
The policy of preventing future harm
here is unclear because as aforementioned, it appears that Defendant did in
fact draft the Amendments as to enlist Plaintiff as the realtor, prior to
Defendant’s termination by Patten.
vi.
whether
the recognition of liability to beneficiaries of wills negligently drawn by
attorneys would impose an undue burden on the profession
The final factor weighs in favor of
Defendant. Imposing a duty upon Defendant where the primary contention is that
the Amendments do not accurately express the testator’s intent is contrary to Chang.
Finally, the opposition papers make
the contention that Chang’s two exceptions are fulfilled here. Again,
the Court disagrees. Chang only provides two exceptions in which
non-client beneficiaries are owed a duty of care that it includes (1) when a
will unambiguously states the testator’s intention that a beneficiary receive a
specific bequest and (2) when the attorney drafted the instrument with a legal
defect which results in the beneficiary not receiving the bequest the testator
clearly intended. (Chang, supra, at 82.) First, the gift at issue
is the $500,000.00 gift. As noted above, this was to be derived from the
commissions of the sales from the Properties, not a flat bequest. Second, the
FAC states in a merely conclusory manner that the instrument possessed a legal defect
but provides no facts to support such an assertion. Therefore, neither of the
exceptions apply here.
(2) The FAC Fails to show a proximate causal connection
between the breach and the resulting injury
Not only do the Biakanja/Lucas
factors counsel against Plaintiff as a non-client potential beneficiary, but
the FAC also fails to show a causal connection between Defendant’s conduct, and
Plaintiff’s harm. Plaintiff alleges that the commissions on the sale of the
Properties were to be $500,000.00. However, it is unclear from the FAC, what
conduct Defendant took to have caused Plaintiff to be removed as realtor for
the Properties.
The FAC does not allege that
Testator had any desire to require that Plaintiff be the realtor, merely
that it be encouraged to use Plaintiff’s services. (FAC, ¶22.) The FAC then
notes that Patten fired Defendant, from this Plaintiff alleges that because of
Patten’s subsequent failure to carry out the terms of the Trust, that Defendant
is liable for not drafting in a contingency plan. However, Plaintiff provides
no legal authority to support such a contention.
Legal Standard and Analysis for
Leave to Amend
Leave
to amend must be allowed where there is a reasonable possibility of successful amendment.
(See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a
demurrer without leave to amend if there is any reasonable possibility that the
defect can be cured by amendment”]. As there is no reasonable possibility of
successful amendment, the Court will deny leave to amend.
Conclusion
Accordingly,
Defendant’s Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED without
leave to amend.
It
is so ordered.
Dated: June 11, 2024
_______________________
Mel Red Recana
Judge of the
Superior Court