Judge Ralph C. Hofer, Case Number: 23GDCV02682, Date: 2024-11-22 Tentative Ruling

Plaintiff Nahideh Harooni alleges that plaintiff was going to take legal action against plaintiff’s former attorney, David S. Lin, and that defendant Raoul Severo from the law offices of Severo was referred by an agency which told plaintiff defendant would be accepting the case based on contingency. The complaint alleges that paralegal David Percillo and Severo himself also said Severo was accepting the case by contingency.

The complaint alleges that plaintiff was told to bring $10,000 for hiring an expert, and that Severo took the money then wrote the contract but did not mention anything about the contingency of contract, and wrote that he would be charging an hourly rate of $650.00. Plaintiff alleges that he wrote on the contract the case is based on contingency, and Severo got angry, tore the contract off and told plaintiff not to write on it by hand. Severo told plaintiff that the charge was for after defendant won the case for plaintiff.

The complaint alleges that plaintiff urged defendant to begin working on the case, as they did not have much time left and could pass the time limit for filing the complaint, but ultimately, in February of 2020, defendant sent plaintiff a letter that defendant could not help plaintiff with positive results. Plaintiff alleges that when plaintiff asked for return of the money, defendant angrily shouted at plaintiff, and told plaintiff that this is not all of the bill, and defendant would sent plaintiff the complete bill soon. Defendant then sent plaintiff a bill in the amount of $17,000.00.

“(a) Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.

(1) As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.

(2) The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.

(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer.

There is no meet and confer declaration submitted with this demurrer. It would appear that there has been no meet and confer, as counsel for defendant on September 4, 2024 filed a Declaration in Support of Automatic Extension which represented that counsel had “been unable to speak with the plaintiff regarding her position on defendant’s demurrer and motion to strike.” [Decl. 09/04/2024, para. 2]. The Court would be within its discretion to continue the matter and require the parties to meet and confer, but will require the parties to meet and confer and submit the required declaration on or before the hearing date, before the matter will be heard.

Here, the opposition was filed on November 15, 2024 and there is no proof of service submitted with the opposition. The filing was for a November 22, 2024 hearing date. Nine court days before the hearing fell on November 8, 2024. The opposition was accordingly filed and served four court days late, and on the date timely reply papers would have been due. The filing was also made after the court had prepared its evaluation of the motion as unopposed. This circumstance has been inconvenient for the court and the courtroom staff, and unfair to the moving party who has been deprived of the opportunity to file a timely reply. The court, in its discretion, could refuse to consider the untimely opposition. The court likely will consider the opposition, but will hear argument from defendant at the hearing concerning whether defendant would like an opportunity to file reply papers. Plaintiff is cautioned that in the future the court may refuse to consider papers not filed in conformity with the statutes, rules and procedures governing this litigation.

To plead a cause of action for breach of contract, plaintiff must plead the following elements: Contract formed and terms alleged verbatim or according to legal effect; plaintiff’s performance or excuse for nonperformance; defendant’s breach; and damage to plaintiff. Walsh v. Standart (1917) 174 Cal. 807.

Defendant argues that the complaint fails to sufficiently allege the existence of a contract, as plaintiff claims that an agreement was made based on contingency fees, but the complaint fails to provide evidence of a finalized, written contingency agreement signed by both parties as required under Business & Professions Code § 6147(a). This contention is a curious argument, as ordinarily a contingent fee agreement is required to be in writing to protect the client and the client’s expectations.

A noncomplying contingency contract accordingly would be voidable by the client, so it is not clear that this is a basis for a demurrer in this situation. However, the pleading is overall ambiguous with respect to whether there was a written contract, as it is alleged that plaintiff added some language to the written contract to which defendant objected. [Complaint, p. 4]. It is not clear from the allegations whether any written contract ultimately was entered by both parties, or whether plaintiff is relying on a contract which is part written and part oral. It is alleged that, after this conflict about the written agreement, the attorney said to plaintiff, “I told you this charge is for after we win the case for you.” [Complaint, p. 6].

As pointed out by defendant, if plaintiff is alleging that there was a written contract, ordinarily a plaintiff should attach a copy of the written contract to the pleading, or set forth the terms of the alleged contract verbatim. Otworth v. Southern Pacific Transportation Co. (1985) 166 Cal.App.3d 452, 459. In Otworth, the Second District stated:

“If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached or incorporated by reference.”

Defendant also argues that it is not clearly alleged that plaintiff performed all obligations required under the contract, or that defendant breached the contract. The pleading is not clear with respect to whether plaintiff fully performed, or that defendant breached a specific obligation. Since the terms of the agreement are not clear, it is not clear that defendant, for example, was required to return the $10,000.00 when the representation ended.

Defendant also argues that the pleading fails to sufficiently allege damages. It appears that the pleading references a $17,000 bill (actually, the complaint alleges a “$17.000.00” bill) being sent to plaintiff, which plaintiff is evidently claiming plaintiff does not owe, and the loss of the $10,000.00, when defendant did not hire an expert. However none of these facts are clearly alleged in terms of defendant causing plaintiff damages. The demurrer is sustained. On amendment plaintiff must clearly allege each element, and correct the typographical error concerning the amount of the bill.

Plaintiff in opposition argues that as a result of defendant’s breach, plaintiff incurred additional financial harm and fees, which were unexpected given the contingency arrangement. Plaintiff does not point to where these facts are alleged with clarity in the pleading itself. The demurrer is sustained with leave to amend.

Plaintiff has also included the “First Cause of Action” for “Breach of Contract” twice in the pleading, which appears duplicative. Plaintiff in the opposition addresses only two causes of action, one for breach of contract and one for misrepresentation, so the inclusion of the breach of contract cause of action twice appears to be a mistake, and on amendment should be corrected.

To state a cause of action for fraud, plaintiff must plead the following elements: A false representation, actual or implied, or concealment of a matter of fact material to the transaction which defendant had a duty to disclose, or defendant’s promise made without intention to perform; defendant’s knowledge of the falsity; defendant’s intent to deceive; plaintiff’s justifiable reliance thereon; and resulting damage to plaintiff. Pearson v. Norton (1964) 230 Cal.App.2d 1.

It is not clear from the pleading, which basically repeats the factual background and breach of contract allegations under the heading, “Misrepresentation,” that each element is alleged with the particularity required. While it appears that plaintiff is alleging that the attorney and his staff misrepresented the nature of the arrangement, whether contingency or hourly, and that plaintiff relied on the contingency representation in retaining the attorney, the claim is not stated with the required level of specificity as to each of what appear to be multiple alleged representations.

Plaintiff in the opposition again argues that the complaint alleges specific facts regarding the misrepresentation, but does not point to where such facts appear in the pleading. Plaintiff refers in the opposition to misrepresentation in the singular. If there is only one actionable misrepresentation at issue, this should be clarified in the amended pleading. In other words, there must be clear allegations as to each separate misrepresentation instead of “catch all” generic allegations as to all misrepresentations in the argument.

There is no meet and confer declaration submitted with this demurrer, as required under CCP § 430.41. The parties are ordered to engage in the required meet and confer before the matter will be called for hearing. Defendant is ordered to prepare the required declaration and file it on eCourt before the matter will be called for hearing.

The Court in its discretion reluctantly has considered the untimely opposition to the motion, filed four court days late, five court days prior to the hearing, after the court evaluated the motion had as unopposed, and on the date timely reply would have been due. The Court will hear argument from defendant concerning whether defendant would like an opportunity to file further reply, given the tentative ruling. Plaintiff is cautioned that in the future the Court may refuse to consider pleadings not filed in conformity with the statutes, rules and procedures governing this litigation.

Demurrer to Complaint is SUSTAINED WITH LEAVE TO AMEND to the first cause of action for breach of contract on the grounds each element of the cause of action is not clearly alleged, including plaintiff’s performance, and a breach causing damages, and because it cannot be ascertained from the pleading whether the contract is written, oral or implied by conduct. On amendment, that nature of the contract should be more clearly specified, along with the nature of each essential term, and if the contract is written, a copy of the contract must be attached, or its terms set forth verbatim. On amendment, plaintiff must correct any typographical errors, such as reference to the sum “$17.000.00,” and should delete the duplicative First Cause of Action—Breach of Contract from the end of the pleading.

Demurrer is SUSTAINED WITH LEAVE TO AMEND to the second cause of action for misrepresentation on the grounds each element of the cause of action is not clearly alleged and the cause of action is not alleged with sufficient specificity. See Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73 (plaintiff must allege specifically how, what, where, to whom and by what means a defendant made a misrepresentation). Such details must be provided for each misrepresentation. If there is only one misrepresentation, this should appear clearly in the amended pleading.

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