Judge: Mel Red Recana, Case: 23STCV04512, Date: 2024-03-11 Tentative Ruling

Case Number: 23STCV04512    Hearing Date: March 11, 2024    Dept: 45

Superior Court of California

County of Los Angeles

Hearing date:              March 11, 2024

Moving Party:             Defendant Klapach & Klapach, P.C.

Responding Party:      Plaintiff Chelle Johnson

Defendant’s Demurrer to Plaintiff’s Complaint  

The Court considered the moving papers, opposition, and reply. Defendant’s Demurrer to Plaintiff’s Complaint is SUSTAINED with 20 days leave to amend.

Background

            Chelle Johnson (Plaintiff) file a Complaint on March 1, 2023 against Klapach & Klapach, P.C. (Defendant) for the sole cause of action for legal malpractice. Defendant now demurs to the Complaint, 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. (Complaint, ¶ 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 Sixth Amendment to the Fourth Amendment and Complete Restatement of the Fred D. Parrott Living Trust, Dated May 16, 2014 (the Amendment). (Id., at ¶ 8.) Plaintiff alleges that this Amendment was to, among other things, name Plaintiff as the designated realtor for the sale of various properties (the Properties) after the Testator’s death. (Id.)

            Plaintiff alleges that Testator communicated this wish to Defendant via conference calls and emails. (Complaint, ¶¶10-13.) In these emails, it is revealed that Carl Patten (Trustee) is to be Trustee of the Fred D. Parrott Living Trust, Dated May 16, 2014 (the Trust). (Id., ¶ 11.) Plaintiff then alleges that through a series of emails, Defendant did not reflect the wishes of Testator in the drafting of the Amendment. Then in March of 2022, Trustee fired Defendant and informed Plaintiff that Plaintiff would not be engaged as the Trust’s realtor to sell the properties. (Id. at ¶ 24.) Plaintiff then filed suit against Defendant.

Requests for Judicial Notice

            Both parties file requests for judicial notice. Defendant requests that this Court 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.

Pursuant to CEC § 452(d), the aforementioned items[1] are judicially recognized. Plaintiff requests that the following be judicially recognized:

1.     Plaintiff’s Complaint dated March 1, 2023.

            The Court references the operative complaint in all demurrers; therefore, judicial notice is unnecessary.

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 presents the Declaration of Harold C. Trimmer (Trimmer Decl.) which states that the parties conferred on April 6, 2023, but were unable to come to an agreement. Nonetheless, the requirements of CCP § 430.41(a) are satisfied, therefore, the Court turns 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.)

            Here, the Demurrer is sustained because Plaintiff fails to demonstrate Defendant owed her a legal duty. Plaintiff alleges that, although she was not the client receiving legal services from Defendant, she nonetheless was owed a duty by Defendant to draft the Amendment in accordance with Testator’s wishes because Plaintiff was a beneficiary. The Court disagrees for two reasons. First, the Biakanja/Lucas factors weigh against a determination of Plaintiff being a non-client potential beneficiary. Second, the Complaint itself states that it was the Trustee that informed Plaintiff that Plaintiff would not be engaged as the Trust’s realtor to sell the properties, and the Complaint fails to show that this was caused by Defendant’s actions.     

a.     The Biakanja/Lucas Factors

            The case surrounded by the parties contentions is Chang v. Lederman (2009) 172 Cal.App.4^th, 67 (“Chang”). 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.) The Court will address each in turn.

                                     i.          the extent to which the transaction was intended to affect the plaintiff

            As the Complaint frames the allegations, the only intention Plaintiff claims is not that she was to receive any specific gift, but that she would be a realtor for the Properties to be sold. (Complaint, ¶ 8.) 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 draft Amendment should have “required” Plaintiff to be the realtor, instead Plaintiff alleges Defendant’s only “encouraged” the Trustee to engage Plaintiff as the realtor. (Complaint, ¶¶ 19-20.)  Here, Chang itself closes off any liability because when the claim is, as it is here, that the Amendment was properly executed and free of legal defects, but simply does not accurately express the testator’s intent, there is no liability on defendant to the nonclient beneficiary. (Chang, supra, 82.) 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 Amendment, the Trustee fired Defendant. Additionally, it appears, per the Complaint, that Defendant had in fact drafted the Amendment as per Testator’s wishes and in accordance with Plaintiff’s own contentions. (Complaint, ¶¶ 21-23.) However, without explanation, the Trustee discharged Defendant, and informed Plaintiff she would no longer be the realtor for the Properties. (Complaint, ¶ 24.) This factor weighs against Plaintiff.

                                  iv.          the closeness of the connection between the defendant's conduct and the injury

            The Complaint 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 Amendment to as to enlist Plaintiff as the realtor, prior to Defendant’s termination by Trustee.

                                  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 Amendment does not accurately express the testator’s intent is contrary to Chang.

            Upon opposition, Plaintiff argues that Chang is not controlling here. The Court disagrees. Chang only provides two situations 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 int eh beneficiary not receiving the bequest the testator clearly intended. (Chang, supra, at 82.) Neither of these situations apply here.  

b.     The Complaint 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 Complaint 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 in excess of $768,000.00. However, it is unclear from the Complaint, what conduct Defendant took to have caused Plaintiff to be removed as realtor for the Properties.

            The Complaint is mainly used to proffer a series of email conversations, between the Testator, Defendant, Trustee, and internal conversations Defendant had in providing legal services to Testator. Plaintiff alleges that at one point, Defendant drafted a pertinent section to state that “The Trustee is authorized and encouraged to engage the services of Fred Leeds and Chelle Johnson as real estate brokers to handle the sale of real property owned by the Trust.” Per Plaintiff, this does not effectuate Testator’s intent that Plaintiff be retained as the realtor. (Complaint, ¶¶ 19-20.)

            However, later, the Complaint provides that, in an email sent by one of Defendant’s attorneys to Trustee in an outline of tasks for the Trustee, Defendant’s attorney states  “Below is a brief outline of those tasks, but the most important thing is that you call us at that time so that we can help navigate you through your legal duties as Trustee… 8. Retain Chelle Johnson, realtor, to sell [the Properties]…” (Complaint, ¶ 21) The Complaint then notes that Trustee fired Defendant, however, the Complaint gives no details as to why or what became of the Amendment after the last series of emails.

            The Complaint fails to show either a legal duty or a causal connection between Defendant’s conduct and Plaintiff’s injury, therefore, the Demurrer is sustained.  

            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 may be reasonable possibility of successful amendment, the Court grants leave to amend.

Conclusion

The Court considered the moving papers, opposition, and reply. Defendant’s Demurrer to Plaintiff’s Complaint is SUSTAINED with 20 days leave to amend.

            It is so ordered.

Dated: March 11, 2024

_______________________

Rolf M. Treu

Judge of the Superior Court