Judge: Michael Shultz, Case: 24STCV32790, Date: 2025-03-11 Tentative Ruling

Case Number: 24STCV32790    Hearing Date: March 11, 2025    Dept: 40

24STCV32790 Natale Mercuri v. Lisa G. Salisbury, et al.

[TENTATIVE] ORDER SUSTAINING DEMURRER TO PETITION BY RESPONDENTS

                                                                                         I.         BACKGROUND

      The Petition alleges that Petitioner retained Respondents to represent him in connection with a claim against Petitioner’s former landlord. Respondents represented that Petitioner’s claim had merit although it did not. Petitioner paid fees of $20,347.15 to Respondents.

      Respondents filed a federal court action for civil rights violations which was ultimately dismissed after the court granted summary judgment in the Respondents’ favor as Petitioner’s claims were not viable. Petitioner was forced to represent himself in the appeal of the judgment. Respondents filed a fee action against Petitioner in Case No. 23STLC00201 (“Fee Action”). Petitioner alleges claims for (1) financial elder abuse, (2) fraud and deceit, (3) constructive fraud, and (4) unjust enrichment.

                                                                                          II.        ARGUMENTS

      Respondents  argue that the complaint is erroneously styled a “petition.” Respondents argue that all claims are time barred, do not adequately allege causes of action, and are uncertain. All claims are a “repackaged” legal malpractice claim as they are based on Petitioner’s dissatisfaction with Respondents’ representation of Petitioner. The statute of limitations for legal malpractice is one year. The elder abuse claim cannot be based on Respondents’ filing of their Fee Action, which conduct is protected by the litigation privilege. As the defects are incurable, the action should be dismissed.

      In opposition, Petitioner argues that the four-year statute of limitations for elder abuse claims recommenced when Respondents filed their Fee Action in 2023. This is not a complaint for legal malpractice. A fiduciary relationship exists between attorney and client, and such a claim may be commenced within four years of the breach. All claims are appropriately alleged.

      In reply, Respondents argue the opposition is unpersuasive and ignores key points raised including that the claims arise out of protected activity and are barred to the extent they are based on the Fee Action. The fraud claim does not meet the heightened pleading standard. This action is a delay tactic filed to derail the Fee Action.

                                                                                       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.) Petitioner 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, alleged "with reasonable precision and with particularity that is sufficiently specific to acquaint the Respondent with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.)  Whether the Petitioner 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 Respondent 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).)

                                                                                                IV.       DISCUSSION

A.     Judicial notice.

      The court grants Respondents’ request for judicial notice of court records in the federal court action, the records filed in the appeal of that dismissal, and the complaint in the Fee Action.  (Evid. Code, § 452(d).) The court does not take judicial notice of an email sent to Petitioner as the date Respondents terminated the relationship.  The email is irrelevant.

B.     Respondents have not persuasively established that Petitioner’s claims assert a claim for legal malpractice.

      A lawyer owes a duty “’to use such skill, prudence, and diligence as members of [the legal] profession commonly possess and exercise’” when representing a client. (Coscia v. McKenna and Cuneo (2001) 25 Cal.4th 1194, 1199.) “A client may accordingly sue the lawyer for legal malpractice if the lawyer breaches that duty, that breach proximately injures the client, and the client suffers actual loss or damage." (Gordon v. Ervin Cohen & Jessup LLP (2023) 88 Cal.App.5th 543, 554.)

      Petitioner does not allege that Respondents failed to use “such skill, prudent, and diligence” of an attorney. (Id.) Rather, Petitioner alleges Respondents misrepresented the merits and viability of his claims against his former landlord. (Complaint, ¶ 8.) The district court judge in the federal court action ruled that the entire complaint lacked merit. (Complaint, ¶ 10.) Petitioner alleges that Respondents were motivated by their financial difficulties. (Complaint, ¶11.) The claim is in part based on Respondents’ filing of their Fee Action as Petitioner alleges that Respondents filed the Fee Action in “continuing their perfidy and elder abuse”. The significance of this allegation is addressed below.

C.     The elder abuse claim is barred by the statute of limitations.

      This cause of action is actionable against a person or entity who takes, obtains, or retains real or personal property of an elder adult for a wrongful use or with intent to defraud or both and where the person or entity knew or should have known that the conduct was likely harmful to the elder. (Welf. & Inst. Code, § 15610.30 subd. (a)(1).) “Taking”, “obtaining”, or “retaining”, occurs when an elder is “deprived of any property right including by means of an agreement”. (Welf. & Inst. Code, § 15610.30 subd. (c).)

      The claim is adequately alleged based on the case cited by Respondents. (Paslay v. State Farm General Ins. Co. (2016) 248 Cal.App.4th 639, 658 [The court concluded that “the fraud allegations were sufficient to state an elder abuse claim.”].) Thus, this claim necessarily depends on the viability of Petitioner’s fraud claims which is discussed post.

      An elder abuse action must be commenced within four years after the Petitioner discovers, or through the use of reasonable diligence, should have discovered the facts constituting the financial abuse. (Welf. & Inst. Code, § 15657.7.) Petitioner alleges that the federal court granted summary judgment in the underlying case, on May 20, 2019. (Complaint, ¶ 10.) Petitioner refused to pay anything further to Respondents after the Motion for Summary Judgment had been granted, at which time Respondents withdrew as Petitioner’s counsel. (Complaint, ¶ 11.)

      These facts establish that Petitioner discovered that Respondents’ representations of the viability of his claims were false on May 20, 2019, when his claims were dismissed. Therefore, Petitioner had to file this action by May 20, 2023. Petitioner untimely filed this action on December 12, 2024.

      Petitioner asserts that the statute of limitations began to accrue when Respondents filed their Fee Action on March 1, 2023. (Opp. 4:16-20.) Petitioner appears to contend that the elder abuse claim is based on the filing of the Fee Action. Respondents correctly argue that such conduct is subject to the litigation privilege and precludes civil liability. A communication is privileged if "(1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action." (Civ. Code, § 47 subd (b); Cabral v. Martins (2009) 177 Cal.App.4th 471, 485.) The privilege is absolute and is not limited to statements made during trial, but “may extend to steps taken prior thereto, or afterwards.” (Id. [“No complaint can be grounded upon such pleading”.].)

      Therefore, this claim, to the extent it is based on the date Petitioner discovered Respondents misrepresented the merits of his claims, is barred by the statute of limitations. If it is based on the Respondents’ filing of their Fee Action as Petitioner now asserts in opposition, the claim is barred by the litigation privilege.

D.     The claim for fraud and deceit is barred by the three-year statute of limitations.

      The statute of limitations on a fraud claim is three years. (Code Civ. Proc., § 338 subd. (d).) This claim is based on the alleged misrepresentation by Respondents that Petitioner had a meritorious claim “when by any standard he did not.” (Complaint, ¶17.) As discussed, ante, Petitioner discovered that his claim did not have merit when the federal court judge granted a motion for summary judgment and dismissed his entire complaint on May 20, 2019. (Complaint, ¶ 10.) The limitations period expired on May 20, 2022. Petitioner commenced this action more than two years later on December 12, 2024.

      Even if not barred by the statute of limitations, the claim does not meet heightened pleading requirements. A claim for fraud requires facts to support the following elements: (1) a misrepresentation, (2) made with knowledge of its falsity, (3) Respondent intended to defraud Petitioner, i.e., induce Petitioner’s reliance, (4) Petitioner justifiably relied on the misrepresentation, (5) causing damage. (Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1268.)

      Petitioner must allege facts showing “how, when, where, to whom, and by what means the representations were tendered."(Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) The requirement “applies not only to the alleged misrepresentation, but also to the elements of causation and damage." (Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 776.)

      Petitioner alleges the date the misrepresentation was made but not other elements required by Stansfield.

E.     The claim for constructive fraud is equally barred by the three-year statute of limitations which commenced from the date of discovery of the fraud, May 20, 2019.

      Constructive fraud is presumed from a party’s breach of a confidential or fiduciary relationship that results in damage even if the conduct is not otherwise fraudulent. (Jones v. Wagner (2001) 90 Cal.App.4th 466, 471.) An attorney owes a fiduciary duty to his or her client. (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086.) This claim is barred by the three-year statute of limitations applicable to fraud claims. (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 828, fn. 11 ["We also note that section 338(4) of the Code of Civil Procedure, which expressly allows three years from the date of discovery in actions based on fraud or mistake, is also applicable in this case since the breach of a fiduciary duty often constitutes a constructive fraud."].)

F.      Unjust enrichment

      Unjust enrichment is not a cause of action but is an equitable principle that underlies “various legal doctrines and remedies.” (County of San Bernardino v. Walsh (2007) 158 Cal.App.4th 533, 542.) Petitioner alleges that this principle is based on the claims for financial elder abuse, fraud, and constructive fraud, all of which are barred by the statute of limitations and the litigation privilege.

                                                                                               V.        CONCLUSION

      Leave to amend is ordinarily given if there is a reasonable possibility that the defect can be cured. However, it is the Petitioner’s burden to show how an amendment will change the legal effect of the pleading. (Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302.) Petitioner requests leave to amend but does not state how he can save the claims to avoid the statute of limitations or the litigation privilege. Leave to amend should be denied only where the facts are not in dispute, and the nature of the Petitioner's claim is clear, “but under substantive law, no liability exists and no amendment would change the result.” (Jo Redland Trust, U.A.D. 4-6-05 v. CIT Bank, N.A. (2023) 92 Cal.App.5th 142, 162.)

      Based on the foregoing, demurrer to the complaint is SUSTAINED. The court is inclined to deny leave to amend but will allow Petitioner to make a proffer at the hearing. (Humane Society of the United States v. State Bd. of Equalization (2007) 152 Cal.App.4th 349, 364 [No abuse of discretion in denying leave to amend when the trial court asked “’how are you in good faith going to be able to amend to state a cause of action?’…  appellant's counsel never articulated a cogent answer. … "].)