Arno Patrick Kuigoua v. Ranojoy Guha, et al. 

(1) DEMURRER TO FIRST AMENDED COMPLAINT

(2) MOTION TO STRIKE

 

MOVING PARTY: Defendants Ranojoy Guha, The Guha Law Firm, and HB Vanguard Legal Group APC

RESPONDING PARTY(S): Plaintiff Arno Patrick Kuigoua

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Arno Patrick Kuigoua brings this action against his former attorneys, Ranojoy Guha, Guha Law Firm, and HB Vanguard Legal Group APC, who represented Plaintiff in an employment dispute with his former employer, the California Department of Veterans Affairs. Plaintiff alleges Defendants committed legal malpractice by failing to file his claims with the DFEH and EEOC, resulting in the dismissal of his lawsuit.  

Defendants now demurrer to the First Amended Complaint and move to strike portions therein. Plaintiff opposed.

TENTATIVE RULING:

Defendants’ Demurrer to the First, Third, and Sixth Causes of Action is OVERRULED.

Defendants’ Demurrer to the Second, Fourth, Fifth, and Eighth Causes of Action is SUSTAINED.  Unless otherwise expressly stated herein, whether leave to amend is allowed will be determined at the hearing.

Defendants’ Motion to Strike is GRANTED IN PART AND DENIED IN PART, as expressly stated herein. 

If requested and allowed, Plaintiff is ordered to file a Second Amended Complaint within 21-days of this Ruling, consistent with this ruling.

Defendants are ordered to give notice, unless waived.  

DISCUSSION:

Demurrer

I. Judicial Notice

Pursuant to Defendants’ request, the court takes judicial notice of Exhibits A through E. To the extent necessary, the court also takes judicial notice that 300 days from October 1, 2018 was July 28, 2019. 

Plaintiff’s objections to the request for judicial notice are OVERRULED.

II. Service on Defendants

In Reply, Defendants contend they were not served with Plaintiff’s opposition papers. They assert they “did not have knowledge of Plaintiff’s Oppositions or Objections until May 27, 2025, one day before the instant Reply was due. Defendants have therefore been prejudiced in preparing their response.” (Reply 2: 13-15.) 

Here, whether the opposition was properly served or not, Defendants had time to prepare a Reply and did not seek a continuance of the hearing date. To the extent necessary, Defendants will be afforded the opportunity at the hearing to supplement any arguments made in the reply. Therefore, even assuming Defendants were not timely served with the opposition, they will not be unduly prejudiced. 

III. Meet and Confer

The Declaration of attorney Bianca M. Bonjean reflects that Defendants’ counsel emailed a meet and confer letter to Plaintiff, but that Plaintiff did not respond. Plaintiff then failed to respond to a subsequent meet and confer email. (Bonjean Decl. ¶¶ 3-5.)

While this demonstrates the absence of any substantive meet and confer, in the interests of judicial economy, the court will proceed to address the demurrer on the merits. The parties are admonished to comply with all meet and confer obligations going forward. (CCP § 430.41.)

IV. Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) 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. (Code Civ. Proc., §§ 430.30, 430.70.) 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 of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

V. Analysis

Defendants demurrer to the First, Second, Third, Fourth, Fifth, Sixth, and Eighth Causes of Action in the FAC. Each is addressed in turn. 

A. First Cause of Action for Professional Negligence

Defendants argue Plaintiff’s cause of action for professional negligence fails “because Plaintiff’s own errors and omissions with respect to the Administrative Charge caused the dismissal of the underlying action.” (Dem. 3: 5-6.) It is Defendants’ position contention that Plaintiff was the one who filed out the administrative complaint.

For context, Defendants represented Plaintiff in the underlying lawsuit. On June 14, 2022, the trial court granted the employer’s motion for summary judgment, concluding Plaintiff did not exhaust administrative remedies because the allegations in the administrative complaint did not cover the allegations in the civil suit. (RJN, Exh. C.) On July 12, 2024, the Court of Appeal affirmed the trial court’s ruling. (Id., Exh. D.) 

Plaintiff now alleges he “retained Defendants on November 16, 2022, and December 16, 2023, for legal representation against the California Department of Veterans Affairs (CALVET).” (FAC ¶ 8.) Plaintiff’s underlying lawsuit based on “incidents of harassment, discrimination, and retaliation.” (Id. ¶ 9.) Plaintiff alleges that “[o]n or about March 1, 2023, Defendants failed to file Plaintiff’s claims with the DFEH and EEOC, despite Plaintiff’s explicit instructions in an email dated December 20, 2022 (Exhibit 4) and the statutory deadlines provided by law.” (Id. ¶ 10.) “As a direct result of this failure, Plaintiff’s employment discrimination lawsuit (Case No. 20STCV09073) was dismissed by the court on June 15, 2023, citing the lack of administrative exhaustion as the basis for dismissal (Exhibit 1).” (Id.) Plaintiff alleges “Defendants ignored Plaintiff's instructions to include critical claims regarding overtime denial and harassment, as evidenced by email correspondence (Exhibit 4),” and “knowingly and intentionally misrepresented on December 16, 2023, that all claims had been properly included in filings with the DFEH and EEOC.” (Id. ¶ 12.) “Defendants made these misrepresentations,” Plaintiff alleges, “to induce Plaintiff to forgo seeking alternative legal representation. Plaintiff reasonably relied on these statements, resulting in the dismissal of his lawsuit and causing significant financial and emotional harm.” (Id.) 

“In order to establish a cause of action for legal malpractice the plaintiff must demonstrate: (1) breach of the attorney's duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a proximate causal connection between the negligent conduct and the resulting injury; and (3) actual loss or damage resulting from the negligence.” (Carlton v. Quint (2000) 77 Cal. App. 4th 690, 699.) To prevail, the plaintiff must prove that but for the attorney’s negligent acts or omissions, the plaintiff would have obtained a more favorable result. (Viner v. Sweet (2003) 30 Cal.4th 1232.)

Here, it does not appear obvious from the complaint nor the documents which the court can take judicial notice that Plaintiff—as opposed to his attorneys—filled out the administrative charge. 

But even assuming that Plaintiff did, this does not mean as a matter of law that Defendants were not the proximate cause of his injury. Rather, there still exists the issue that Defendants, once retained to represent Plaintiff, failed to conform the lawsuit to the existing allegations in the administrative charge. Thus, at this stage, Plaintiff has alleged Defendants were the but-for-cause of his injuries.

Accordingly, Defendants’ Demurrer to the First Cause of Action is OVERRULED. 

B. Second Cause of Action for Breach of Contract; Fifth Cause of Action for Breach of Implied Covenant

Next, Defendants argue Plaintiff has not alleged any breach of the retainer agreements. 

A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff. (Careau & Co. v. Security Pacific Business (1990) 222 Cal.App.3d 1371, 1388).  The rule in California is that “[a] written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. [Citation.] In order to plead a contract by its legal effect, plaintiff must ‘allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.’ [Citation.]”  (Heritage Pac. Fin., LLC v. Monroy, (2013) 215 Cal. App. 4th 972, 993.)

Plaintiff alleges only that “Defendants breached explicit terms of the retainer agreements (Exhibits 2 and 3) by failing to diligently pursue Plaintiff's claims, including omitting essential claims for overtime denial and harassment.” (FAC ¶ 20.) 

The version of Plaintiff’s First Amended Complaint filed with this court does not include any attached exhibits.  In addition, the FAC does not identify any particular provision of the retainer agreements allegedly breached. Without properly alleging a contractual underpinning, Plaintiff’s claims for breach of contract and breach of the implied covenant fail. 

Accordingly, Defendants’ Demurrer to the Second and Fifth Causes of Action is SUSTAINED.  Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff is given leave to amend to include the retainer agreement(s) and identify the provision(s) allegedly breached. 

C. Third Cause of Action for Breach of Fiduciary Duty

Next, Defendants argue Plaintiff has not alleged a breach of fiduciary duty because the cause of action “requires some further violation beyond mere allegations of professional negligence.” (Dem. 6: 10-11.) They contend the cause of action, as pled, is duplicative of the professional negligence cause of action. For this proposition, they rely primarily on 2 Mallen & Smith, Legal Malpractice § 15.3, pp.660-61 (2017) (“[F]iduciary breach allegations that constitute negligence, which do not implicate a duty of confidentiality or loyalty, and are merely duplicative of a negligence cause of action, do not support a cause of action for fiduciary breach.”)

It does not appear that any published California authorities have adopted the same rule. In other words, a breach of fiduciary duty and legal malpractice can apparently rest on the same facts. Absent further guidance from a higher court, this court declines to find the breach of fiduciary duty cause of action duplicative at the demurrer stage.

Accordingly, Defendants’ Demurrer to the Third Cause of Action is OVERRULED. 

D. Fourth Cause of Action for Fraudulent Misrepresentation

Next, Defendants argue Plaintiff has not alleged the elements of fraud with the requisite specificity. 

The essential elements of a count for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638. Generally, “[i]n California, fraud must be pled specifically; general and conclusory allegations do not suffice.” (Alfaro v. Community Housing Improvement System & Planning Assn., Inc.¿(2009) 171 Cal.App.4th 1356, 1384, internal quotations omitted.) “The normal policy of liberally construing pleadings against a demurrer will not be invoked to sustain a fraud cause of action that fails to set forth such specific allegations. (Id.)” The heightened pleading standard for fraud requires “pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Id.) 

Plaintiff alleges “Defendants knowingly and intentionally misrepresented on December 16, 2023, that all claims had been properly filed with the DFEH and EEOC to induce Plaintiff not to seek other legal counsel. Plaintiff reasonably relied on these misrepresentations, resulting in the dismissal of his lawsuit and causing substantial financial and emotional harm. [¶] Defendants knew that their failure to include critical claims would likely result in the dismissal of Plaintiff’s case. Defendants made these misrepresentations with intent to deceive and avoid accountability.” (FAC ¶¶ 25, 26.)

Here, these allegations are conclusory and lack the specificity necessary to plead fraud. In particular, Plaintiff has not alleged facts showing Defendants intentionally misrepresented that certain charges had been filed.  

Accordingly, Defendants’ Demurrer to the Fourth Cause of Action is SUSTAINED. 

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must proffer a sufficient offer of proof at the hearing that Plaintiff is able to plead sufficient facts showing fraudulent misrepresentation(s).

 

E. Sixth Cause of Action for Unfair Business Practices

Next, Defendants contend Plaintiff has not stated a claim under the UCL because there are “no facts that would indicate that members of the general public are likely to be deceived by Defendants’ alleged misrepresentations to Plaintiff regarding Plaintiff’s claim status;” because it is “devoid of facts alleging that Defendants engaged in unlawful behavior or otherwise violated any laws that resulted in any financial or other benefit to Defendant;” and because “Plaintiff has not alleged any facts that would support a claim seeking injunctive relief or restitution here.”

Business and Professions Code section 17200 defines “unfair competition” to include “any unlawful, unfair or fraudulent business act or practice....” “The scope of section 17200 is broad, encompassing ‘anything that can properly be called a business practice and that at the same time is forbidden by law.’ ... It governs ‘anti-competitive business practices’ as well as injuries to consumers, and has as a major purpose ‘the preservation of fair business competition.’” [Citations.] (Linear Tech. Corp. v. Applied Materials, Inc., (2007) 152 Cal. App. 4th 115, 133).  Whether a practice violates the section “is generally a question of fact which requires ‘consideration and weighing of evidence from both sides’ and which usually cannot be made on demurrer.” [Citation].  (Id.) Despite its broad applicability, “[i]njunctive relief and restitution are the only remedies available under the UCL.”  (Esparza v. Safeway, Inc. (2019) 36 Cal. App. 5th 42, 53.)  Thus, “[a] UCL claim must be based on the existence of harm supporting injunctive relief or restitution.”  (Id.)

Here, given the broad applicability of section 17200 and the requirement that a court “weigh[] evidence from both sides,” the demurrer is improper.  Plaintiff has alleged facts under the liberal pleading standard, that if proven true, could violate section 17200, et seq. For pleadings purposes, Plaintiff has also alleged facts to possibly support restitution and/or injunctive relief.

Accordingly, Defendants’ Demurrer to the Sixth Cause of Action is OVERRULED.

Of course, perhaps Plaintiff (and his attorneys) should be careful for what they ask.  This Court has the authority at this time to bifurcate this cause of action (including any request for injunctive relief) and hear this matter in a few weeks and/or months.  The adjudication of this cause of action and/or request for injunctive relief could arguably moot many of the other causes of action in this case.  If Plaintiff still wants to pursue this UCL cause of action, this Court intends to have this discussion at the upcoming CMC.  Plaintiff should frankly ask himself the following question:  What additional remedies and/or damages can he received under the UCL cause of action, to which are not available by means of the other causes of action?  The answer is rather simple:  None.

F. Eighth Cause of Action for Declaratory Relief

Finally, Defendants argue Plaintiff’s cause of action for declaratory relief must fail with the breach of contract cause of action. 

Plaintiff alleges a “judicial determination is necessary to clarify the parties’ rights and obligations under the retainer agreements, including whether Defendants were required to file all claims as instructed by Plaintiff and whether their failure to do so constitutes a breach of contract.” (FAC ¶ 33.) 

Because this cause of action is solely based on the retainer agreements, it fails for the same reason the breach of contract cause of action does: Plaintiff has not identified any breached portion of the retainer agreements. 

Accordingly, Defendants’ Demurrer to the Eighth Cause of Action is SUSTAINED.

Motion to Strike

Defendants’ Motion to Strike is GRANTED IN PART AND DENIED IN PART, as discussed below:. 

I. Legal Standard

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court.  (CCP § 436.)

II. Analysis

A. Seventh Cause of Action for Negligent Infliction of Emotional Distress

Defendants first move to strike the second cause of action for negligent infliction of emotional distress, arguing it is duplicative of the negligence cause of action. The court agrees. 

“[T]here is no independent tort of negligent infliction of emotional distress”— it is merely “a species of negligence.” (Delfino v. Agilent Techs., Inc. (2006) 145 Cal. App. 4th 790, 818.) 

Accordingly, Defendants’ Motion to Strike the Seventh Cause of Action is GRANTED WITHOUT LEAVE TO AMEND.

B. Pain and Suffering, Emotional Distress Damages

Next, Defendants move to strike the allegations pertaining to Plaintiff’s pain and suffering and/or emotional distress. 

“Emotional distress damages may be recoverable if directly caused by an attorney's conduct in breach of his fiduciary duties…By contrast, ‘[e]motional distress damages ordinarily are not recoverable in a legal malpractice action if the representation concerned primarily the client's economic interests and the emotional injury derived from an economic loss.’” (Kaushansky v. Stonecroft Att'ys, APC (2025) 109 Cal. App. 5th 788, 806.) This means that “where a plaintiff sufficiently alleges intentional or affirmative misconduct by an attorney or noneconomic injury resulting from an attorney's professional negligence, recovery of emotional distress damages is permitted.” (Id.)

Here, as discussed more fully in the demurrer, Plaintiff has not alleged intentional misconduct by the Defendants. As currently pled, the allegations do not exceed negligence.

Accordingly, Defendants’ Motion to Strike these damages is GRANTED.  Whether leave to amend is allowed is based upon whether leave is granted to the Fourth Cause of Action.

C. Attorney’s Fees

Next, Defendants argue Plaintiff has not alleged a right to recover attorney’s fees. Plaintiff has not identified any contractual or statutory basis to recover attorney’s fees.

Accordingly, Defendants’ Motion to Strike Attorney’s Fees is GRANTED. 

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must proffer a sufficient offer of proof at the hearing that Plaintiff is able to plead sufficient facts showing a possible right to attorney’s fees, especially when he represents himself, in pro per.

D. Punitive Damages

Next, Defendants move to strike Plaintiff’s request for punitive damages. 

Civil Code § 3294 provides that “[i]n an action for the breach of an obligation not arising from contract where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” 

As defined in § 3294(c):

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. 

(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. 

(3) “Fraud” means that a defendant intentionally misrepresented or concealed a material fact and did so intended to harm a plaintiff.

Here, as currently pled, Plaintiffs allegations of wrongdoing do not go beyond mere negligence. He has not alleged the requisite malice, oppression, or fraud necessary to support an award of punitive damages. 

Accordingly, Defendants’ Motion to Strike Punitive Damages is GRANTED.  Whether leave to amend is allowed is based upon whether leave is granted to the Fourth Cause of Action.

E. Allegations Re: Loss of Income and Damage to Reputation 

Finally, Defendants argue Plaintiff’s allegations regarding loss of income and damage to reputation should be stricken as irrelevant.

Courts are given “broad discretion” when ruling on a motion to strike.  (Camenisch v. Superior Court (1996) 44 Cal.App.4th 1689, 1699).  Courts need not strike a prayer for damages before a party “has had a full opportunity to determine, through discovery, whether a basis for recovery exists.”  (Id.)  At this stage, this court cannot conclude that the loss of income and reputational damage are truly “irrelevant” to this action.

Accordingly, Defendants’ Motion to Strike these allegations is DENIED.

Concluding Observations re: Over-Pleading

IT IS SO ORDERED.

Dated:   June 4, 2025 ___________________________________