Judge: Michael P. Linfield, Case: 23STCV15657, Date: 2024-04-10 Tentative Ruling

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Case Number: 23STCV15657    Hearing Date: April 10, 2024    Dept: 34

SUBJECT:        Demurrer to Complaint

Moving Party: Defendants Matthew Lane Bremont and Sweet James, LLP

Resp. Party:    None

RULING:

The Demurrer to the Complaint is SUSTAINED.  Plaintiff is granted 30 days leave to amend her Complaint.

BACKGROUND:

On July 6, 2023, Plaintiff Anita Jo Nave, in propria persona, filed a Complaint against Defendants Matthew Lane Bremont and Sweet James, LLP (erroneously sued as Sweet James LLC) on a cause of action for malpractice.

On July 6, 2023, Plaintiff filed Notice of Lien.

On March 1, 2024, Defendants filed their Demurrer to the Complaint. In support of their Demurrer, Defendants concurrently filed: (1) Memorandum of Points and Authorities; (2) Declaration of Andy Servais; (3) Proposed Order; and (4) Proof of Service.

No opposition or other response has been filed to the Demurrer.

ANALYSIS:

I.          Legal Standard

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of” various grounds listed in statute. (Code Civ. Proc., § 430.10.)

“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30, subd. (a).)

“A demurrer to a complaint or cross-complaint may be taken to the whole complaint or cross-complaint or to any of the causes of action stated therein.” (Code Civ. Proc., § 430.50, subd. (a).)

“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed. Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, citations and internal quotation marks omitted.)

II.       Discussion

A.      The Parties’ Arguments

Defendants demur to the Complaint and its sole cause of action for malpractice, arguing that the Complaint does not plead sufficient facts to constitute a cause of action and is uncertain. (Demurrer, p. 2:3–4.)

Plaintiff does not oppose or otherwise respond to the Demurrer.

B.      Legal Standard

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

. . .

“(e)¿The pleading does not state facts sufficient to constitute a cause of action.

“(f)¿The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.”

(Code Civ. Proc., 430.10, subds. (e)–(f).)

“In a legal malpractice action arising from a civil proceeding, the elements are (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. In a legal malpractice case arising out of a criminal proceeding, California, like most jurisdictions, also requires proof of actual innocence.” (Coscia V. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199–1200, citations omitted.)

“When such failure proximately causes damage, it gives rise to an action in tort. Since in the usual case, the attorney undertakes to perform his duties pursuant to a contract with the client, the attorney's failure to exercise the requisite skill and care is also a breach of an express or implied term of that contract. Thus legal malpractice constitutes both a tort and a breach of contract.” (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 180–181, footnotes omitted.)

“Causation here means that but for the attorneys' negligence the client would have prevailed in the underlying action. Though normally a question of fact, causation may be decided as a question of law if the undisputed facts permit only one reasonable conclusion.” (Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1529, citation omitted.)

C.      Discussion

Here, Plaintiff alleges in the entirety:

“Matthew Lane Bremont’s ineffective assistance of counsel which included not contacting me in over 10–12 months to discuss my case and his unethical disposition as my lawyer along with his abuse of power which led me to mental duress caused me to file this lawsuit. I am a 65 year old person with many disabilities, mental and physical.” (Complaint, capitalization omitted.)

The pleading is uncertain in numerous ways. Plaintiff makes numerous allegations against defendant, including:  (1) alleged ineffective assistance of counsel, (2) failure to contact Plaintiff, (3) “unethical disposition”, and (4) “abuse of power.” However, it is uncertain whether any of these allegations had any impact on the underlying case. While there could be other causes of action based on the conduct alleged, Plaintiff has not sufficiently pleaded the element of causation for a cause of action for legal malpractice.

        Because the cause of action could be clarified to reach the requisite level of sufficiency and certainty, leave to amend is appropriate here.

III.     Conclusion

The Demurrer to the Complaint is SUSTAINED. Plaintiff is granted 30  days leave to amend her Complaint.