Judge: Peter A. Hernandez, Case: 21PSCV00669, Date: 2022-10-31 Tentative Ruling

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Case Number: 21PSCV00669    Hearing Date: October 31, 2022    Dept: O

 

1.         Defendant Ronald McCollum’s Motion to Set Aside Request for Entry of Default Judgment is GRANTED.

2.         Defendant Eyad Yaser Abdeljawad’s Demurrer to Plaintiff’s Complaint is OVERRULED.

Background   

Plaintiff Kim Louise Slater (“Plaintiff”) alleges as follows: On April 4, 2017, Plaintiff’s brother, Christopher Andrew Slater (“decedent”), died intestate, leaving Plaintiff as his sole heir and beneficiary. On June 6, 2018, decedent’s home was foreclosed upon. On August 31, 2018, Plaintiff entered into a contractual relationship with National Recovery Solutions (“NRS”) to recover surplus funds from the foreclosure sale. NRS is owned and operated by Defendant Ronald McCollum (“McCollum”). McCollum falsely represented to Plaintiff that he was an attorney licensed in California and that he held an “Attorney IOLTA Trust Account.” On December 5, 2018, a petition for letters of administration was filed in Case No. RP18931075, wherein McCollum was appointed as executor of decedent’s estate. Defendant Eyad Yaser Abdeljawad (“Abdeljawad”) was substituted in as Plaintiff’s counsel in said case, without Plaintiff’s knowledge. Plaintiff did not know about McCollum’s appointment and Plaintiff never signed any documents or declarations to that effect. McCollum thereafter recovered surplus funds in the amount of $330,234.57, but never paid any of these monies to Plaintiff.

On August 17, 2021, Plaintiff filed a complaint, asserting causes of action against McCollum, Abdeljawad and Does 1-10 for:

1.                  Breach of Contract

2.                  Unjust Enrichment

3.                  Breach of Fiduciary Duty of a Personal Representative

4.                  Fraud; Intentional Misrepresentation of Material Facts; Concealment of Material Facts

5.                  Common Counts

6.                  Legal Malpractice Against Eyad Yaser Abdeljawad

On December 21, 2021, Abdeljawad’s default was entered. On December 22, 2021, McCollum’s default was entered.

An Order to Show Cause Re: Default Judgment is set for May 16, 2022.

1.         Set Aside Entry of Default

Legal Standard

Relief under Code of Civil Procedure section 473 is either discretionary or mandatory. A motion for mandatory relief must be “made no more than six months after entry of judgment” and be “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subd. (b).)

The attorney affidavit of fault must contain a “straightforward admission of fault.” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) The attorney affidavit of fault, however, need not include an explanation of the reasons for the attorney’s mistake, inadvertence surprise or neglect. (Martin Potts & Assocs., Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438-441.) “Relief is mandatory when a complying affidavit is filed, even if the attorney’s neglect was inexcusable.” (Rodrigues v. Superior Court (2005) 127 Cal.App.4th 1027, 1033.) Relief must be granted unless the court finds that the default or dismissal was not in fact caused by the attorney's fault. (Id.)

Where a party cannot obtain an attorney affidavit of fault, the party may seek discretionary relief under section 473(b) due to “mistake, inadvertence, surprise, or excusable neglect.” (Code Civ., Proc., § 473, subd. (b).) A motion for discretionary relief must be made “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Id.) “The burden of proof. . . is on the moving party who must establish his position by a preponderance of the evidence.” (Luz v. Lopes (1960) 55 Cal.2d 54, 62.) “Because the law favors disposing of cases on their merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Rapplyea v. Campbell (1994) 8 Cal.4th 975, 980 [quotation marks and citation omitted].)

A motion for relief under section 473, subdivision (b) “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted. . .” (Code Civ. Proc., § 473, subd. (b).)

Discussion

McCollum moves the court for an order setting aside the December 22, 2021 entry of default on the basis of excusable neglect.

McCollum has not sought relief pursuant to the mandatory attorney affidavit of fault provision. A motion under section 473 for discretionary relief accompanied by a declaration of an attorney suggesting attorney fault does not require the court to grant relief under the mandatory provision of section 473. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1124 [“The trial court is not required to consider the availability of relief under the discretionary or mandatory grounds in the absence of any request for relief under those grounds . . . Just as the trial court may under appropriate circumstances overlook certain procedural deficiencies in pleadings . . . it is not precluded from considering a motion under section 473 to be one under the mandatory provision. If such relief is to be considered, the parties should have fair notice of the possibility of such relief. But, when faced with a motion for relief under section 473, the trial court does not have to consider the availability of relief under the mandatory provision unless such relief is requested in an appropriate manner”].)

Again, the instant motion originally came on calendar for hearing on May 9, 2022; the court communicated in its ruling dated May 13, 2022 that it was unclear when Abdeljawad became McCollum’s counsel. McCollum’s declaration was devoid of any facts pertaining to his own excusable neglect; instead, he attested that he sought relief “based on the excusable neglect of [his] attorney.” (McCollum Decl., ¶ 1.) The court instructed both Abdeljawad and McCollum to file and serve supplemental declarations ten court days prior to the continued hearing date of June 9, 2022 specifically addressing the issue of when Abdeljawad became McCollum’s counsel and whether or not either of them ever advised Soleimanian of such representation at any point in time prior to the entry of McCollum’s default. The court further instructed that Soleimanian was permitted to file and serve a supplemental declaration limited to the representation issue five court days prior to the continued hearing date.

On May 26, 2022, Soleimanian filed an amended declaration, wherein he advised that Abdeljawad sent a meet and confer email to him regarding the complaint in or about November 12, 2021 and that on or about November 16, 2021 at 3:00 p.m., he and Abdeljawad had a 15-minute phone call. (Soleimanian Amended Decl., ¶¶ 3 and 4, Exh. 1.) Soleimanian attests that Abdeljawad never communicated to him verbally or in writing that he represented McCollum. (Id., ¶ 6.) Soleimanian’s statement is supported by a November 12, 2021 email from Soleimanian to Abdeljawad in response to Abdeljawad’s meet and confer; this states, in relevant part, “[m]eet and confer noted. . . You have no standing to object unless you represent the other defendant which you have not stated. . .” (Id., ¶ 7, Exh. 3.)

On June 9, 2022, the motion came on calendar for continued hearing; at that time, Abdeljawad represented that he did not receive the court’s May 13, 2022 order on the submitted matter. On that date, the court continued the hearing to September 1, 2022 and mailed a copy of the May 13, 2022 minute order to Abdeljawad.

On August 17, 2021, McCollum and Abdeljawad filed supplemental declarations. Both McCollum and Abdeljawad attest that McCollum hired Abdeljawad as his attorney in this matter on or about November 8, 2021. (McCollum Supp. Decl., ¶ 1; Abdeljawad Supp. Decl., ¶ 1.) The court notes that Soleimanian and Abdeljawad dispute whether Abdeljawad advised Soleimanian during the November 16, 2021 phone call referenced above that Abdeljawad represented McCollum; Abdeljawad claims that he did. (Abdeljawad Supp. Decl., ¶ 2.) Regardless, Abdeljawad represents that on November 21, 2021, he was alerted by McCollum that McCollum had been served “lawsuit documents” by a “process server from Soleimanian’s office” and that he assured McCollum that he would file a response. (Id., ¶ 3.) Abdeljawad unequivocally states that he “completely and straightforwardly admit[s] fault for not filing a response on behalf of [his] client Mr. McCollum.” (Id., ¶ 4.)

The court will treat the instant motion as seeking mandatory relief, based on Abdeljawad’s declaration filed August 17, 2022. The motion is granted.

2.         Demurrer

Legal Standard

A demurrer may be made on grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action and is uncertain. (Code Civ. Proc., § 430.10, subds. (e) and (f).) A demurrer may also be made on grounds that the person who filed the pleading does not have the legal capacity to sue and that there is another action pending between the same parties on the same cause of action. (Code Civ. Proc., §§ 430.10, subds. (b) and (c).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Discussion

Abdeljawad demurs to the sixth cause of action (i.e., for Legal Malpractice) in Plaintiff’s complaint, on the basis that it fails to state facts sufficient to constitute a cause of action and is uncertain. Abdeljawad further demurs on the basis that Plaintiff lacks legal capacity to sue and that there is another action pending between the same parties on the same cause of action.

Request for Judicial Notice

The court rules on Abdeljawad’s Request for Judicial Notice (“RJN”) as follows: Granted as to Exhibit A (i.e., grant deed recorded May 11, 2010); Granted as to Exhibit B (i.e., Trustee’s Deed Upon Sale recorded August 29, 2018); Denied in part as to Exhibit C (i.e., unsigned “Order Appointing Administrator”) and Granted in part as to Exhibit C (i.e., “Petition for Letters of Administration” filed December 5, 2018 in case styled Estate of Christopher Andrew Slater, Case No. RP18931075 [“Probate Action”] and “Duties and Liabilities of Personal Representative and Acknowledgement of Receipt” filed December 5, 2018 in the Probate Action), Granted as to Exhibit D (i.e., “Order Appointing Administrator” filed March 5, 2019 in the Probate Action) and Granted as to Exhibit E (i.e., “Letters of Administration” filed March 7, 2019 in the Probate Action).

Merits

At the outset, Abdeljawad’s Code of Civil Procedure § 430.10, subdivision (c) argument is summarily rejected, inasmuch as it is beyond the scope of the pleadings and judicially noticeable documents whether or not “[t]here exists a current[ly] pending action in Alameda County Superior Court,” let alone that said action is “pending between the same parties on the same cause of action.”

Abdeljawad’s remaining arguments are likewise rejected. “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.” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.)

Plaintiff has alleged the existence of an attorney-client relationship between Abdeljawad and herself. (See Complaint, ¶ 17; see also, Exhibit D). Abdeljawad’s own RJN (i.e., Exhibit E thereto) identifies Abdeljawad as Plaintiff’s attorney. Plaintiff has asserted that Abdeljawad substituted into case styled Estate of Christopher Slater, Case No. RP18931075 as Plaintiff’s attorney of record on December 21, 2018 and that she discovered the fact of this representation, as well as that a probate case had been filed and that surplus proceeds had been recovered on or about September 17, 2020. (Id., ¶¶ 60 and 61.) Plaintiff has alleged that Abdeljawad was never in contact with her and that he failed to her of his representation, of the fact that a probate case had been filed or that McCollum had been appointed as Personal Representative. (Id., ¶ 64.) Plaintiff has alleged that Abdeljawad had “neglected to inform Plaintiff that any Surplus Funds had been recovered, or that such funds had been deposited.” (Id.) Plaintiff has also alleged that Abdeljawad was paid by McCollum to represent Plaintiff, which money “came from the Surplus Fund recovered by Defendants,” and that she has been damaged because the recovered surplus funds were absconded with. (Id., ¶¶ 21-25 and 67.)

The demurrer is overruled.