Judge: Robert B. Broadbelt, Case: 21STCV30535, Date: 2022-12-13 Tentative Ruling
Case Number: 21STCV30535 Hearing Date: December 13, 2022 Dept: 53
Superior Court of California
County of Los Angeles – Central District
Department
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21STCV30535 |
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Hearing
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December
13, 2022 |
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[Tentative]
Order RE: defendants’ demurrer to plaintiff’s
complaint |
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MOVING PARTIES:
Defendants Donald S. Eisenberg
and The Law Office of Donald S. Eisenberg
RESPONDING PARTY: Plaintiff Jordan S. Esensten
Demurrer to Complaint
The court
considered the moving, opposition, and reply papers filed in connection with
this demurrer.
BACKGROUND
Plaintiff Jordan
S. Esensten (“Plaintiff”) filed this action against defendants Donald S.
Eisenberg and Law Office of Donald S. Eisenberg (“Defendants”) on August 17,
2021, alleging five causes of action for (1) legal malpractice; (2) breach of
fiduciary duty; (3) breach of contract; (4) intentional infliction of emotional
distress; and (5) negligent infliction of emotional distress.
Defendants now move
the court for an order sustaining their demurrer to each cause of action
alleged in Plaintiff’s Complaint.
REQUEST FOR JUDICIAL NOTICE
The court grants Defendants’
request for judicial notice. (Evid.
Code, § 452, subd. (d).)
The court overrules
Defendants’ demurrer to Plaintiff’s Complaint on the basis of claim or issue preclusion. (Code Civ. Proc., § 430.10, subd. (e).) The court notes that Defendants assert, in
their notice of demurrer and request for judicial notice, that Plaintiff’s
Complaint is barred by res judicata.
(Notice, pp. 1:27-2:13; Request for Judicial Notice, p. 2:6-13.) Although it is possible that the claims
alleged by Plaintiff in his Complaint might be barred by the doctrine of issue
preclusion, Defendants do not (1) assert the legal doctrine of issue preclusion
in their supporting memorandum of points and authorities, or (2) provide the
court with analysis establishing that the Arbitrator’s findings in the
arbitration award have preclusive effect on the claims alleged by Plaintiff in
his Complaint in this action.
The court overrules
Defendants’ demurrer to Plaintiff’s Complaint on the ground that Plaintiff does
not attach a written fee agreement between the parties because Plaintiff sufficiently
alleges the existence of an attorney-client relationship between Plaintiff and
Defendants. (Code Civ. Proc.,
§ 430.10, subd. (e); Compl., ¶ 9.)
The court overrules
Defendants’ demurrer to Plaintiff’s first cause of action for legal malpractice
on the ground of the bar of the statute of limitations because it does not
“appear clearly and affirmatively that, upon the face of the complaint,” this cause
of action is necessarily barred. (Code
Civ. Proc., § 430.10, subd. (e); Lockley v. Law Office of Cantrell,
Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.)
The court overrules Defendants’
demurrer to Plaintiff’s first cause of action for legal malpractice because it
states facts sufficient to constitute a cause of action since Plaintiff
alleges facts establishing that Defendants breached their duty of care to
Plaintiff by unilaterally rejecting the visitation offer without Plaintiff’s authority,
which caused Plaintiff harm because he obtained a less favorable visitation
agreement. (Code Civ. Proc., § 430.10,
subd. (e); Compl., ¶¶ 11-12, 18, 21; Filbin v. Fitzgerald (2012) 211
Cal.App.4th 154, 166.)
The court overrules
Defendants’ demurrer to Plaintiff’s second cause of action for breach of
fiduciary duty because it states facts sufficient to constitute a cause of
action since Plaintiff alleges the existence of Defendants’ fiduciary duty to
Plaintiff and a breach of that duty.
(Code Civ. Proc., § 430.10, subd. (e); Compl., ¶¶ 24-26.)
The court sustains Defendants’
demurrer to Plaintiff’s third cause of action for breach of contract because it
fails to state facts sufficient to constitute a cause of action since Plaintiff
(1) fails to allege the element of Plaintiff’s performance or excuse for
nonperformance, and (2) fails to allege the terms of the agreement or attach
the agreement to the Complaint. (Code
Civ. Proc., § 430.10, subd. (e); Oasis West Realty, LLC v. Goldman (2011)
51 Cal.4th 811, 821.)
The court sustains Defendants’
demurrer to Plaintiff’s fourth cause of action for intentional infliction of
emotional distress because it fails to state facts sufficient to
constitute a cause of action since Plaintiff fails to allege facts establishing
that Defendants’ conduct in disclosing unspecified confidential information was
“so extreme as to exceed all bounds of that usually tolerated in a civilized community”
and therefore has failed to allege the element of extreme and outrageous
conduct. (Code Civ. Proc., § 430.10,
subd. (e); Hughes v. Pair (2009) 46 Cal.4th 1036, 1050-1051 [internal
quotations omitted].)
The court overrules Defendants’
demurrer to Plaintiff’s fifth cause of action for negligent infliction of
emotional distress because it states facts sufficient to constitute a
cause of action since (1) a claim for negligent infliction of emotional distress
is the tort of negligence, to which the traditional elements of negligence
apply, and (2) Plaintiff has adequately alleged his first cause of action for
professional negligence and incorporates the allegations supporting that cause
of action into his fifth cause of action and seeks to recover damages for
emotional distress. (Code Civ. Proc.,
§ 430.10, subd. (e); Belen v. Ryan Seacrest Productions, LLC (2021)
65 Cal.App.5th 1145, 1165; Furia v. Helm (2003)111 Cal.App.4th 945, 953-954
[“‘Actionable legal malpractice is compounded of the same basic elements as
other kinds of actionable negligence:
duty, breach of duty, proximate cause, damage.’”].)
ORDER
The
court overrules defendants Donald S. Eisenberg and Law Office of Donald S.
Eisenberg’s demurrer to plaintiff Jordan S. Esensten’s first cause of action
for legal malpractice, second cause of action for breach of fiduciary duty, and
fifth cause of action for negligent infliction of emotional distress. (Code Civ. Proc., § 430.10, subd. (e).)
The
court sustains defendants Donald S. Eisenberg and Law Office of Donald S.
Eisenberg’s demurrer to plaintiff Jordan S. Esensten’s third cause of action
for breach of contract and fourth cause of action for intentional infliction of
emotional distress. (Code Civ. Proc.,
§ 430.10, subd. (e).)
The
court grants plaintiff Jordan Esensten 20 days leave to file a First Amended
Complaint to cure the deficiencies as to the third and fourth causes of action
set forth above.
The court orders defendants Donald S. Eisenberg and Law Office of
Donald S. Eisenberg to give notice of this ruling.
IT IS SO ORDERED.
DATED:
_____________________________
Robert
B. Broadbelt III
Judge
of the Superior Court