Judge: Peter A. Hernandez, Case: 23STCV15657, Date: 2024-09-09 Tentative Ruling

The Court often posts its tentative several days in advance of the hearing. Please re-check the tentative rulings the day before the hearing to be sure that the Court has not revised the ruling since the time it was posted.

Please call the clerk at (213) 633-0154 by 4:00 pm. the court day before the hearing if you wish to submit on the tentative.

Case Number: 23STCV15657    Hearing Date: September 9, 2024    Dept: 34

Nave v. Bremont, et al. (23STCV15657)

1.     Defendants Matthew Lane Bremont and Sweet James, LLP’s Demurrer to First Amended Complaint is SUSTAINED without leave to amend.

Background

On July 6, 2023, Plaintiff Anita Jo Nave (“Plaintiff”), in pro per, filed a complaint alleging malpractice against Defendants Matthew Lane Bremont and Sweet James LLC (together “Defendants”), alleging the following:

“Matthew Lane Bremont’s ineffective assistance of counsel, which included not contacting me in over 10-12 months to discuss my case and his unethical disposition as my lawyer along with his abuse of power which led me to mental duress caused me to file this lawsuit. I am a 65 year old person with many disabilities. Mental and Physical.”

(Complaint, p. 1.)

On March 1, 2024, Defendants filed a Demurrer to the Complaint, which the Court sustained with leave to amend on April 10, 2024. The Notice of Ruling on the Demurrer was filed and served by both mail and electronic service on April 12, 2024.

On May 8, 2024, and May 9, 2024, Plaintiff served and filed, respectively, an Opposition to the Demurrer and a First Amended Complaint (“FAC”) by first-class mail on Defendants. In the FAC, Plaintiff made the following additional allegations:

“Matthew Lane Bremont did not communicate with me as an attorney should with his client. He was dishonest about being an attorney for seven years when it had only been five years. I checked with CSBA. His admission date was 12-2016. I don’t know why he was being dishonest about that.

Mathew Lane Bremont was again dishonest when he said that he had spoken or discussed with me about not receiving therapy or treatment anymore. He never mentioned anything to me. As a matter of fact, it was Kiana Vahid that spoke to me about using my own health insurance until they figured out a way to pay the doctor’s bills. Not Matthew Lane Bremont, because I didn’t even know of him at the time.

The lies and being dishonest is a breach of contract in CCC-3300, California Civil Code.

Also, Matthew Lane Bremont’s unethical disposition as my attorney did not contact me in a period of 10-12 months. Professional Disconduct, Rule 1-300.

His abuse of power as an attorney was that Matthew Lane Bremont willfully delayed the lawsuit with the view of his own gain. He said, and I quote, I want to get paid, which included not informing me that the other party, which was AAA Insurance Company, was ready to settle in May of 2021. Instead, Matthew Lane Bremont prolonged the lawsuit for his own satisfaction, especially when he knew it was an open and shut case. I was not at fault.

Matthew Lane Bremont’s abuse of power led me to mental, physical, and emotional duress. All the lies and verbal negative abuse is what caused me to file this lawsuit.”

Plaintiff also attached an Exhibit A showing a forwarded email thread from Plaintiff to drrosie@aol.com on April 9, 2024 from March 4, 2023, and an original message from kianava@sweetjames.com to Plaintiff on January 18, 2021 asking Plaintiff to send a photo of declarations, and a January 22, 2021, message from kianava@sweetjames.com to Plaintiff including recommendations to three physical therapy and MRI facilities, asking Plaintiff to “Please go through your health insurance to schedule your appointments until we figure out liability.”.

(FAC, pp. 1-2, Exhibit A.)

On June 12, 2024, following unsuccessful meet and confer efforts, Defendants filed a Demurrer to the FAC in its entirety, concurrently with a request for judicial notice and proof of service and supporting declarations.

On July 5, 2024, the hearing on Defendant’s Demurrer without Motion to Strike the FAC, previously set for July 18, 2024, was continued to September 9, 2024.

On July 30, 2024, the case was reassigned from Judge Michael P. Linfield to Judge Peter A. Hernandez.

On July 31, 2024, Plaintiff filed a Second Amended Complaint (“SAC”) for Legal Malpractice against Defendants alleging as follows, and attaching exhibits A, B, C, and D.

“Matthew Lane Bremont, Sweet James, LLP are not the law firm they say they are. Matthew Lane Bremont, Sweet James, LLP are liars, cheaters, and disrespectful. They took my money and never got me a settlement.”

(SAC, p. 1.)

Exhibit A contains letters from Plaintiff to Judge Linfield;

Exhibit B contains a summary of Plaintiff’s legal charges;

Exhibit C contains 14 customer reviews filed with the Better Business Bureau against Defendant Sweet James LLP and a letter dated May 26, 2021, from the Interinsurance Exchange of the Automobile Club regarding a settlement of $30,000 on the insurance policy of Romeo Hamrick for Claimants Anita Nave, Darren Kendrix, Aliah Hansan, and Evadney Nicholson, and a letter from State Farm to Plaintiff regarding the insurance policy of Altheia Mitchell asking Plaintiff to call State Farm and provide a declaration to support their investigation.

Exhibit D contains Plaintiff’s mental health diagnoses and psychiatric evaluation notes.

(SAC, Exhibits A-D.)

            On August 30, 2024, Defendants filed a Reply to the Demurrer to the FAC concurrently with a declaration.

            The hearing on this motion is scheduled for September 9, 2024.

1.               Defendants Bremont & Sweet James, LLP’s Demurrer

Meet and Confer

On review of the Declaration of Madison R. Kneadler, the Court notes that Defendant has satisfied its meet and confer obligation prior to filing the instant motion, as Code of Civil Procedure section 430.41, subdivision (a), and section 435.5, subdivision (a), require meeting and conferring “in person or by telephone.” On June 3, 2024, Defense Counsel Kneadler emailed Plaintiff requesting a phone call to meet and confer. (Kneadler Decl., ¶ 6.) Attorney Kneadler followed up with Plaintiff by mail and by email thereafter. (Id., ¶¶ 7-8.) On June 6, 2024, Defense counsel and Irean Z. Swan, a shareholder of Defendant Sweet James, LLP discussed the merits of this demurrer by telephone. (Kneadler Decl. ¶ 9.)

Timeliness

All opposition papers must be served on the demurring party and filed with the court at least 9 court days before the hearing. (CCP § 1005(b).)

Plaintiff has failed to file a timely Opposition on Defendants by filing her Opposition 27 calendar days after the Court posted its Notice of Ruling on the Demurrer. Plaintiff’s Opposition challenges the service of the Demurrer, and the effectiveness of parties’ prior meet and confer effort on February 29, 2024.

Plaintiff’s Opposition to Defendant’s Demurrer to the original Complaint is untimely filed.

Legal Standard

A demurrer may be made on the grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action and/or is uncertain. (Code Civ. Proc., § 430.10, subds. (e) and (f).)

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

Defendants demur, pursuant to Code of Civil Procedure § 430.10, subdivisions (e) and (f), to the entirety of Plaintiff’s FAC, on the basis that it fails to state facts sufficient to constitute a cause of action and is uncertain.  

“To state a cause of action for legal malpractice, a plaintiff must plead (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.” (Kumaraperu v. Feldsted (2015) 237 Cal.App.4th 60, 66, quotation marks omitted.)

Plaintiff has alleged that Defendant Bremont “did not communicate with [her] as an attorney should with his client” and Defendant Bremont’s “unethical disposition as [her] attorney did not contact [her] in a period of 10-12 months. Professional Disconduct, Rule 1-300.” (FAC, p. 1:16-19, 2:1-11.) Plaintiff has also alleged that Defendant Bremont was dishonest about the length of his legal experience, claiming seven years of experience, but Plaintiff does not allege when this statement was allegedly made, given that the FAC was filed on May 9, 2024. The Court notes that Defendant Bremont has been actively admitted to the State Bar of California since December 2016, nearly eight years ago. Plaintiff also fails to allege how this alleged misrepresentation was material to her resulting injury.

Plaintiff also alleges that Defendant Breman willfully delayed the progress of her lawsuit when he failed to inform her of AAA Insurance Company’s willingness to settle the presumable personal injury matter in May 2021. (FAC, p. 2:15-19.) Plaintiff fails to sufficiently state a factual basis for the proximate causal connection between Defendants’ conduct and her resulting injury, alleging only that Defendant Bremont’s “abuse of power led me to mental, physical, and emotional duress. All the lies and verbal negative abuse is what caused me to file this lawsuit.” (Id., p. 2:24-28.)

While a party may choose to act as his or her own attorney, “ ‘such a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]’ [Citation.] Thus, as is the case with attorneys, [self-represented] litigants must follow correct rules of procedure. [Citations.]” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246–1247, 19 Cal.Rptr.3d 416; Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 524, 134 Cal.Rptr.3d 604 [“Although plaintiffs appear in this court without counsel, that does not entitle them to special treatment”]; ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 208.) 

As confusing as Plaintiff’s FAC is, at a minimum, Plaintiff has not factually alleged how Defendants Bretman and Sweet James LLP purportedly breached their professional obligations to her. Defendants’ demurrer to Plaintiff’s FAC, then, is sustained without leave to amend.

What Plaintiff lacks in allegations against Defendants would not be cured by allowing leave to amend at this time.

2.     Plaintiff’s Second Amended Complaint

In Reply to the Demurrer to the FAC, Defendants request the Court strike Plaintiff’s SAC because it was filed without leave of the Court, without a stipulation between the parties, and never served on Defendants. (Reply, p. 3:4-15; Declaration of Madison Kneadler, ¶¶ 4-5.)

Pursuant to Code of Civil Procedure section 473, subdivision (a)(1), “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.”  Amendment may be allowed at any time before or after commencement of trial. (Code Civ. Proc., § 576.) “[T]he court’s discretion will usually be exercised liberally to permit amendment of the pleadings. The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428 (internal citations omitted).) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend….”  (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.)

A motion to amend a pleading before trial must include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments. (Cal. Rules of Court, rule 3.1324(a).) The motion must also state what allegations are proposed to be deleted or added, by page, paragraph, and line number.  (Cal. Rules of Court, rule 3.1324(a).) Finally, a separate supporting declaration specifying the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and the reason the request for amendment was not made earlier must also accompany the motion. (Cal. Rules of Court, rule 3.134(b).)

On July 31, 2024, Plaintiff filed a Second Amended Complaint (“SAC”) for Legal Malpractice against Defendants. There is no indication that Plaintiff sought leave to amend the FAC prior to the filing of the SAC. Although Plaintiff has attached four new exhibits to corroborate the allegations against Defendants, Plaintiff has not followed the adequate procedures requiring first seeking permission from the Court to file an amendment to the FAC, or reached a mutual agreement with Defendants.

            Accordingly, the Court strikes Plaintiff’s SAC.