Judge Olivia Rosales, Case 21NWCV00406 2022-10-11 Tentative Ruling

Judge: Olivia Rosales, Case: 21NWCV00406, Date: 2022-10-11 Tentative Ruling

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Case Number: 21NWCV00406 Hearing Date: October 11, 2022 Dept: SEC

AGUILA v. CIVIC PROPERTY AND CASUALTY COMPANY, et al.

CASE NO.: 21NWCV00406

HEARING: 10/11/22 @ 9:30 AM

TENTATIVE RULING

Defendant Wolk & Levine, LLP’s demurrer to Plaintiff’s second amended complaint is SUSTAINED without leave to amend.

Moving Party to give NOTICE.

Defendant Wolk & Levine, LLP demurs to the 5^th cause of action on the ground that they fail to state facts sufficient to constitute a cause of action.

This action was filed by Plaintiff Henry Aguila on June 22, 2021. The operative Second Amended Complaint (“SAC”) alleges the following relevant facts:

Defendant Guinevere Malley had been the attorney for Plaintiff and Thee Aguila Inc. for over 10 years. In July 2019, irreconcilable differences arose between the parties, and Malley ceased being Plaintiff’s representative. (SAC, ¶ 12.) “In March of 2020 Plaintiff sued Defendant Civic Property for breach of contract on an insurance claim… As part of Defendant’s Civic Property’s investigation of the Claim, Plaintiff had informed Defendant Civil Property that Malley had been his prior legal representative on numerous matters, including but not limited to the Entertainment Venue. Plaintiff identified Defendant Malley as the last known occupant of the insured property. Plaintiff further informed Defendant Civic Property that the termination of the legal representation by Malley was not amicable and that Malley had a substance abuse problem.” (SAC ¶ 13.)

“[I]nstead of paying the Claim under a reservation of rights after Malley refused to disclose any privileged information, Defendants Civic Property, Berger Kahn and Winston, made repeated attempts to solicit privileged information from Defendant Malley… by continuously contacting her through Defendant Wolk & Levine.” (SAC, ¶ 15.) “In November of 2020 Plaintiff sought the assistance from Defendant Malley, with respect to her prior involvement and legal representation in the Entertainment Venue. In November of 2020 Defendant Malley was employed by Defendant Wolk & Levine, and both owed a fiduciary duty to Plaintiff... Plaintiff is informed and believes, and thereon alleges that Defendant Malley refused to assist Plaintiff because of the compromise caused by Defendants Civic Property, Berger Kahn and Winston to the privileged relationship between Plaintiff and Defendant Malley. Defendant Malley's refusal to assist Plaintiff was a violation of The State Bar of California Rule 1.9. Plaintiff is informed and believes and thereon alleges that Defendant Civic Property, Berger Kahn's and Winston's conduct was a substantial factor in Malley's refusal to assist Plaintiff.” (SAC, ¶ 16.) Based thereon, the FAC asserts the following causes of action:

1. Interference with Prospective Advantage

2. Breach of Fiduciary Duty

3. Aiding and Abetting a Breach of Fiduciary Duty

4. Intentional Infliction of Emotional Distress

5. Negligence

5^th CAUSE OF ACTION

NEGLIGENCE: The elements of a cause of action for negligence are: a legal duty to use due care; breach of such legal duty; and the breach as the proximate or legal cause of the resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

Previously, this court sustained Defendant’s demurrer to the 1^st and 2^nd causes of action, but granted leave to amend to cure the deficient claims. Plaintiff was not given leave to assert an entirely new cause of action. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018.)

Notwithstanding such, the SAC fails to allege sufficient facts supporting a special relationship duty owed by Wolk & Levine:

Plaintiff alleges that Defendant owed a duty of care to Plaintiff because of the special relationship that existed between Defendant and Defendant Malley. (SAC, ¶ 41.) Plaintiff alleges that he had a prior attorney-client relationship with attorney Malley. (SAC, ¶ 12.) Plaintiff admits that “Malley ceased being Plaintiff’s representative” in July 2019. (Id.) Thereafter, Malley became employed by Wolk & Levine. Plaintiff now alleges that Wolk & Levine, somehow, as an employer of Malley, now has an attorney-client relationship with Plaintiff.

This theory fails based on the facts alleged in the SAC. The relationship between Plaintiff and Malley ended in July 2019. (SAC, ¶ 12.) An attorney’s duty depends on the existence of an attorney—client relationship. “If that relationship does not exist, the fiduciary duty to a client does not arise.” (Daniels v. DeSimone (1993) 13 Cal.App.4th 600, 607; see also Chang v. Lederman (2009) 172 Cal.,App.4^th 67, 82-83.)

Demurrer is SUSTAINED without leave to amend.