Judge: Michael Shultz, Case: 24STCV25984, Date: 2025-03-18 Tentative Ruling

Case Number: 24STCV25984    Hearing Date: March 18, 2025    Dept: 40

24STCV25984 Gloria Estiandan v. Jessie Max Creed

Tuesday, March 18, 2025

 

[TENTATIVE] ORDER SUSTAINING IN PART AND OVERRULING IN PART DEMURRER TO PLAINTIFF’S COMPLAINT

[TENTATIVE] ORDER GRANTING MOTION TO STRIKE IN PART AND DENYING IN PART

 

                                                        I.          BACKGROUND

       The complaint alleges that Defendant represented Plaintiff with respect to claims against the Southern California Gas Company for injuries sustained in the Porter Ranch Gas Leak. Plaintiff alleges Defendant failed to timely file Plaintiff’s claims. Plaintiff alleges causes of action for negligence/legal malpractice, breach of fiduciary duty, negligent misrepresentation, and negligent infliction of emotional distress.

                                                         II.         ARGUMENTS

       Defendant demurs to the second, third, and fourth, causes of action for breach of fiduciary duty, negligent misrepresentation, and negligent infliction of emotional distress, respectively. Defendant argues that the fiduciary duty claim is identical to the first cause of action for negligence. The third cause of action is not alleged with required specificity. The emotional distress claim does not allege injury that is separate from the negligence claim to support an independent tort for emotional distress.

       In opposition, Plaintiff argues that all of Defendant’s arguments lack merit. There is no duplication of claims. The misrepresentation claim meets pleading standards. It is irrelevant whether Defendant’s assistant was responsible for the harm. The emotional distress claim is not a stand alone cause of action and is such damages are recoverable.

       In reply, Defendant argues the Plaintiff’s “red herrings” should be ignored. Defendant did not demur to the claim for professional negligence. Plaintiff did not distinguish between the claim for legal malpractice and breach of fiduciary duty.

                                              III.        LEGAL STANDARDS

       A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the complaint’s sufficiency, the court must assume the truth of the properly pleaded factual allegations as well as facts that can be reasonably inferred from those expressly pleaded facts. The court may also consider matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

       The court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.4th 634, 638.) Plaintiff is required to allege facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. Code Civ. Proc., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)

       Sufficient facts are the essential facts of the case stated “with reasonable precision and with particularity that is sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.)  Whether the Plaintiff will be able to prove the pleaded facts is irrelevant. (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)

       A demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing, they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2; Code Civ. Proc., § 430.10(f).)

       A pleading is required to assert general allegations of ultimate fact. Evidentiary facts are not required. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 26, 47; Lim v. The.TV Corp. Internat. (2002) 99 Cal. App. 4th 684, 690.)

                                                         IV.        DISCUSSION

A.      Demurrer to the second cause of action for breach of fiduciary duty is OVERRULED.

       A breach of fiduciary duty claim is a “species of tort distinct from a cause of action for professional negligence." (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086.) Legal malpractice is a tort based on an attorney’s failure to "use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 179.) A claim for breach of fiduciary duty requires proof of a fiduciary relationship and breach of that duty that proximately causes damage. (Id.) According to Stanley, cited by Defendant, "[t]he scope of an attorney's fiduciary duty may be determined as a matter of law based on the Rules of Professional Conduct which, ‘together with statutes and general principles relating to other fiduciary relationships, all help define the duty component of the fiduciary duty which an attorney owes to his [or her] client." (Stanley at 1086.)

       The claim for breach of fiduciary duty is not duplicative of the negligence claim, as the latter claim alleges that Defendant failed to apply the learning and skill necessary to perform a service for a client, failed to act diligently, and failed to keep the client informed, among other things. (Complaint, ¶ 19-22.)

       On the other hand, the fiduciary duty claim is based on Defendant’s alleged failure to act with loyalty, fidelity, and integrity, by failing to maintain communication and to communicate material information to the client. (Complaint, ¶32.)  While there is some overlap, the fiduciary duty claim is based on a breach of the duty of loyalty, integrity, and confidentiality, which is distinct from the claim for Defendant’s failure to apply the necessary skill in performing legal services.

B.      The third cause of action for negligent misrepresentation is not alleged with specificity.

              Negligent misrepresentation is a “species of the tort of deceit” that requires proof of a “(1) misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.” (Borman v. Brown (2021) 59 Cal.App.5th 1048, 1060.) The tort does not require knowledge of falsity. (Id.) The claim differs from fraud only as to the second element which requires proof that the defendants made the representation without reasonable ground for believing it to be true. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 196.)

        Plaintiff alleges that Defendant, through his assistant, Sophia Del Rey, misrepresented the status of Plaintiff’s legal matter, assuring Plaintiff that her case and the settlement thereof were progressing, and that Defendant was legally safeguarding Plaintiff’s legal rights. (Complaint, ¶44.) At the time the statements were made, Defendant had no reasonable grounds for believing them to be true. (Complaint, ¶46.) The representations made by Del Rey were intended to induce Plaintiff to continue relying on Defendant’s representations that her case was being handled competently in order to prevent Plaintiff from seeking alternative legal counsel or taking any other action to protect Plaintiff’s legal rights (Complaint, ¶47.) Plaintiff justifiably relied on the misrepresentation to her detriment and suffered financial and emotional loss. (Complaint, ¶¶48-49.)

       Defendant argues the claim is vague as it relies solely on an allegation that the assistant made a misrepresentation, not Defendant.  Assuming the assistant’s representation could be imputed to Defendant, the claim is not alleged with specificity as to where, when, to whom, and by what means the statements were made.

       As this claim sounds in fraud, Plaintiff must allege each element with specificity by alleging facts showing how, when, where, to whom, and by what means the representations were made. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166–1167.) The allegation that Defendant’s assistant allegedly made the misrepresentations does not render the claim vague, as Defendant contends. In Daniels, cited by Defendant, the plaintiff’s identification of a bank employee as the person who made the misrepresentation met particularity requirements, although liability for the misrepresentations for another required agency allegations. (Id. at 1171.) Here, the agency allegation is met, but the specific time period when the representations is not alleged.

       The allegation of a “general time frame” for when a misrepresentation was made is sufficient to support the claim. (Daniels at 1168 [allegation that the misrepresentation was made over the phone in 2011 deemed proper].) However, Plaintiff has not alleged a general time frame. The complaint alleges that the gas leak lasted from October 23, 2015 to February 18, 2016; Plaintiff’s family received settlements from SoCal Gas; Plaintiff was left without compensation although she believed Defendant was addressing Plaintiff’s claim; Defendant’s assistant informed Plaintiff in August 2023 by telephone that Plaintiff may have been denied settlement for discriminatory reasons; the claim “ran until 2024” and following that conversation; and Defendant’s assistant cut off further communication (Complaint, ¶¶ 9-13.) The allegations do not identify a general time frame for when the misrepresentations were made.

C.      The fourth cause of action for negligent infliction of emotional distress is sufficient.

       Defendant argues that Plaintiff cannot recover for emotional distress damage flowing from the alleged breach of Defendant’s duty arising from the attorney-client relationship. Where the harm in a legal malpractice action is economic, the Plaintiff cannot recover emotional distress damages where the primary interest protected is “typically economic.”  (Merenda v. Superior Court (1992) 3 Cal.App.4th 1, 10.)

       Here, Plaintiff alleges that Defendant’s alleged misconduct deprived her of a settlement of $60,000 which her relatives successfully obtained, when Defendant failed to file Plaintiff’s claim. (Complaint, ¶ 11.) Where the interest is economic, “serious emotional distress is not an inevitable consequence of the loss of money, and as noted, precedents run strongly against recovery.” (Id.)

       Plaintiff, however, has also alleged a claim for breach of fiduciary duty, which is a separate tort. Emotional distress damages are recoverable for such claims. (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1097 [attorney’s breach of fiduciary duty by abandoning and betraying plaintiff client, the client’s anxiety over the loss of plaintiff’s family home and loss of benefits]; Branch v. Homefed Bank (1992) 6 Cal.App.4th 793, 800 [emotional distress damages for bad faith refusal to pay insurance proceeds]; Knutson v. Foster (2018) 25 Cal.App.5th 1075, 1095 [recovery of emotional distress damages for breach of fiduciary duty arising from attorney’s breach of the duty of loyalty to client by, among other things, failing to keep the client informed of all information needed to make an informed decision.].)

IV.  CONCLUSION

       Based on the foregoing, demurrer is SUSTAINED in part only as to the third cause of action for negligent misrepresentation with leave to amend, since there is a reasonable possibility that the claim can be alleged with specificity. (Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302.). Plaintiff is ordered to file an amended complaint within 30 days.

 

 

[TENTATIVE] ORDER GRANTING MOTION TO STRIKE IN PART AND DENYING IN PART

I.        ARGUMENTS

       Defendant separately moves to strike the claim for statutory penalties or attorney’s fees for which no basis is alleged.  Defendant contends that Plaintiff cannot recover emotional distress in a legal malpractice case that alleges purely economic loss, nor can Plaintiff recover punitive damages based on the legal malpractice claim as Plaintiff has not alleged malice, fraud, or oppression on Defendant’s part.

       In opposition, Plaintiff argues that all claims are legally and factually supported. With respect to civil penalties, the motion is premature. Recovery of punitive damages is permissible based on the alleged facts.

       In reply, Defendant adds that the request for attorney’s fees should be stricken because there is no alleged basis therefor under contract or under Code Civ. Proc., § 1021. There is no basis for statutory civil penalties or for punitive damages.

II.      LEGAL STANDARDS

       A motion to strike is limited to matters that appear on the face of the pleading or on any matter of which the court can take judicial notice. (Code Civ. Proc., § 437.) The court may strike out any irrelevant, false, or improper matter inserted in any pleading; or strike all or any part of the pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. §436 subd. (a)-(b).)

III.    DISCUSSION

       Plaintiff has not alleged any basis for statutory penalties. Plaintiff does not allege a claim for violation of a statute, and Plaintiff’s opposition does not identify any statute that Defendant purportedly violated. Claims for statutory penalties are STRICKEN.

       Exemplary damages may be recovered if a plaintiff establishes “by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” (Civ. Code, § 3294 subd. (a).). The predicate acts to support a claim for punitive damages must be intended to cause injury or must constitute fraud, or “malicious” or “oppressive” conduct as defined by statute. (Civ. Code, § 3294 subd. (c)(1); College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)  The court has granted Plaintiff leave to amend the negligent misrepresentation cause of action, which claim is a species of fraud and may support the prayer for punitive damages. The motion to strike that prayer is DENIED.

       Plaintiff prays for recovery of attorney’s fees. There is no requirement that complaint assert recovery of attorney’s fees in the first instance. It is not an abuse of discretion to refuse to strike a claim for attorney fees where plaintiff has not had a full opportunity to determine the basis for such fees. (Camenisch v. Superior Court (1996) 44 Cal.App.4th 1689, 1699. Yassin v. Solis (2010) 184 Cal.App.4th 524, 533) ["There is no requirement that a party plead that it is seeking attorney fees, and there is no requirement that the ground for a fee award be specified in the pleadings."].

IV.    CONCLUSION

       The motion to strike is GRANTED as to the allegations for recovery of statutory penalties. In all other respects the motion is DENIED.