Judge: Michael Small, Case: 23STCV21161, Date: 2023-12-07 Tentative Ruling

Case Number: 23STCV21161    Hearing Date: December 7, 2023    Dept: 57

Plaintiff Maria Elena Salazar (“Maria Elena”) sued her former attorneys, Defendants Claudia C. Osuna (“Osuna”) and Osuna & Dotson Law Firm (collectively, “Defendants”), for legal malpractice and fraud arising out of Defendants’ representation of Maria Elena in a family law proceeding related to Salazar’s marriage to her former husband Cesar Salzar (“Cesar”).  Pending before the Court are the Defendants’ demurrer to Maria Elena’s fraud claim and motion to strike the prayers for general damages and punitive damages in Maria Elena’s complaint.  The Court is overruling the demurrer.  The Court is denying the motion to strike, at least as to the grounds on which the Defendants’ motion rests.  On its own motion, however, the Court is striking the prayer for relief for punitive damages on the ground that it sets forth a specific amount of punitive damages that Maria Elena is seeking.  This violates Civil Code Section 3925(e ).

The critical allegations in Maria Elena’s complaint are as follows.  First, Osuna failed to obtain an appraisal of property in Long Beach, California that would have given another property located at 9444 Rendalia Street, in Bellflower, (“Bellflower Property”) to Maria Elena in the family law proceeding.  Second, Osuna represented to Salazar that Osuna would ensure that the Bellflower Property would remain Maria Elena’s property.  Third, Osuna falsely represented to Maria Elena that Osuna had taken steps to actualize Maria Elena’s share of property in Mexico that the Court in the family law proceeding ordered sold and shared equally between Maria Elena and Cesar.          

Defendants’ demur to the fraud clam on the ground that the complaint fails to state facts sufficient to constitute a cause of action for fraud and that allegations are uncertain.  In their Memorandum of Points and Authorities, however, Defendants make arguments only as to the insufficiency ground, not uncertainty.  Those arguments do not hold water.         

First, Defendants argue that Maria Elena’s allegations of fraud spring out of the claim for legal malpractice, and therefore her fraud claim is “nothing more than negligence” and as such is “duplicative and baseless.” (Demurrer at p. 4.)   To support this argument, Defendants rely on Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992. There, the Supreme Court held that claims for general and professional negligence/legal malpractice “comprise essentially one form of action.”  (Id. at p. 995.)  Defendants maintain that under Flowers, Maria Elena’s claim for malpractice -- i.e. professional negligence --  and claim for fraud are one in the same.  Defendants’ reliance on Flowers is misplaced.  Maria Elena has alleged fraud in addition to professional negligence, not general negligence in addition to professional negligence.  “Fraud is an intentional tort distinct from malpractice.” (Knutson v. Foster (2018) 25 Cal. App. 5th 1075, 1091.)  They are not one in the same.  Maria Elena can assert both.

Second, Defendants argue that the allegations supporting the fraud claim are insufficient because Osuna’s alleged statement to Maria Elena that “Osuna was on top of things as far as ensuring that the Bellflower [P]roperty . . . would remain Salazar’s property” is an opinion, not a representation of fact.  (See Complaint, ¶ 27.)  The Court disagrees.   The alleged statement in question is a representation that Osuna had done something, which Maria Elena alleges that Osuna did not do.   The same is true for the alleged statement of Osuna that Osuna “had taken steps to actualize Salazar’s share of the Mexico property.” (Id., ¶ 28.)

Turning to the motion to strike, Defendants’ lead argument is that punitive damages are available only on the fraud claim, and because the fraud claim is insufficiently pled, Maria Elena is not entitled to punitive damages.  This argument stands or falls with the sufficiency of the allegations supporting the fraud claim.  In light of the Court’s ruling on the demurrer that the fraud claim is sufficiently pled, the argument that punitive damages are unavailable falls.  

Equally unavailing is Defendants’ argument regarding the sufficiency of the allegations to support an award of punitive damages.  In the Court’s view, the allegations regarding Osuna’s conduct are sufficient to support a finding by a jury under Civil Code Section 3294 that there is clear and convincing evidence that Osuna acted with malice, oppression and fraud in her representation of Maria Elena.

Defendants also argue that general damages for emotional distress are not recoverable for legal malpractice claims.  Maria Elena counters that she is seeking those damages for her fraud claim and that they are recoverable here because she has alleged intentional or affirmative misconduct by her former attorneys.  Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1040, supports Maria Elena on this point.

Although not raised in Defendants’ motion to strike, the Court on its own motion is striking the prayer for punitive damages because it contains a specific amount of punitive damages that Maria Elena is seeking.  This is prohibited by Civil Code Section 3925(e), which provides that “[n]o claim for exemplary damages shall state an amount or amounts.”  Maria Elena is granted leave to amend her complaint to remove the request for a specific amount of punitive damages.