Judge: Robert C. Longstreth, Case: 37-2023-00041181-CU-PN-CTL, Date: 2024-02-16 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 15, 2024

02/16/2024  08:30:00 AM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited  Professional Negligence Demurrer / Motion to Strike 37-2023-00041181-CU-PN-CTL GRUNVALD VS HIRJI & CHAU LLP [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 11/20/2023

Defendants' Demurrer to Plaintiff's Complaint (ROA 19) is SUSTAINED with leave to amend as to the second, third, and seventh causes of action. As to the sixth cause of action, leave to amend is denied.

Second Cause of Action – False Promise Plaintiff's second cause of action is for False Promise, a species of fraud. (Civ. Code § 1710(4).) Fraud claims include the same basic elements; a plaintiff must plead '(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.' (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060 (internal citations omitted).) In addition, 'in a promissory fraud action, to sufficiently allege[] defendant made a misrepresentation, the complaint must allege (1) the defendant made a representation of intent to perform some future action, i.e., the defendant made a promise, and (2) the defendant did not really have that intent at the time that the promise was made, i.e., the promise was false.' (Ibid.) In addition, all fraud claims 'must be pled specifically; general and conclusory allegations do not suffice.' (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) 'This particularity requirement necessitates pleading facts which show how, when, were, to whom, and by what means the representations were tendered.' (Ibid., internal citations omitted.) Plaintiff alleges 'Partner Defendants intended for Plaintiff to rely on their promise of contingency fee representation in order to ensure that Plaintiff could not locate new counsel to represent them and their son and to force Plaintiff to instead remain with Partner Defendants on unfavorable or coerced terms.' (Compl. ¶ 167.) Plaintiff also alleges that '[a]t the time Partner Defendants told Plaintiff that they were going to timely provide a draft contingency fee agreement, that statement was false.' (Id. at ¶ 169.) Further, '[t]he representations made by Partner Defendants to Plaintiff that they would provide Plaintiff with draft complaints for A.G.'s state and federal court complaints were false at the time they were made and instead, Partner Defendants intentionally delayed in providing the complaints to Plaintiff in order to coerce Plaintiff into signing an unfavorable and one-sided contingency fee agreement with A.G.'s statutory deadline looming.' (Id. at ¶ 171.) Plaintiff has not sufficiently alleged Defendants made a promise without any intention of performing. To the contrary, Plaintiff has pled the Defendants emailed her a proposed contingency fee agreement on March 1, 2023. (Id. at ¶¶ 68, 164.) As to the draft federal and state court complaints, Plaintiff does not allege Defendant had no intention of finalizing them. Indeed, elsewhere in her Complaint Plaintiff alleges Calendar No.: Event ID:  TENTATIVE RULINGS

3053655  9 CASE NUMBER: CASE TITLE:  GRUNVALD VS HIRJI & CHAU LLP [IMAGED]  37-2023-00041181-CU-PN-CTL that Defendants had begun preparing these pleadings with the mutual understanding with Plaintiff that a contingency fee agreement would be executed. (Compl. ¶ 127, 'Plaintiff believed that Defendants were acting as her attorneys during the period after the OAH's December 15, 2022 Decision subject to the Parties entering into a formal written agreement documenting the scope of representation and the fees to be paid to Defendants.') The Complaint also lacks sufficient specificity to the extent makes allegations against the 'Partner Defendants' without specifying which specific Defendant made which alleged misrepresentations. This renders the pleading uncertain because the individual Defendants do not know which actions they are each accused of, and fraud must be pled with specificity. (Lazar, supra.) The demurrer is sustained with leave to amend on Plaintiff's second cause of action. (Code Civ. Proc. § 430.10(e),(f).) Third Cause of Action – Intentional Misrepresentation Plaintiff's third cause of action is for Intentional Misrepresentation, another species of fraud. (Civ. Code § 1710(2).) 'To establish a claim for fraudulent misrepresentation, the plaintiff must prove (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and, (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff.' (Perlas v. GMAC Mortgage, LLC (2010) 187 Cal.App.4th 429, 434 (italics omitted) (internal citations omitted).) As a fraud claim, Plaintiff's cause of action for intentional misrepresentation must also be pled with specificity. (Lazar, supra.) The facts underpinning this cause of action are the same as Plaintiff's second cause of action, and thus this claim fails for the same reasons.

In addition, Defendants point out that a future promise to perform is generally not actionable as a fraudulent misrepresentation. 'A declaration of intention, although in the nature of a promise, made in good faith, without intention to deceive, and in the honest expectation that it will be fulfilled, even though it is not carried out, does not constitute a fraud.' (Edmunds v. Valley Circle Estates (1993) 16 Cal.App.4th 1290, 1301 (internal citations omitted); see also Beckwith, supra, at p. 1060.) The demurrer is sustained with leave to amend on Plaintiff's third cause of action. (Code Civ. Proc. § 430.10(e),(f).) Sixth Cause of Action – Negligent Infliction of Emotional Distress Plaintiff alleges 'Partner Defendants' negligence was a substantial factor in causing Plaintiff's serious emotional distress which included suffering, anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, and shame.' (Compl. ¶ 324.) In this cause of action, Plaintiff plainly seeks emotional damages based on the alleged negligence of Defendants during their representation of her, which is not a cognizable claim under the law. 'Emotional 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.' (Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 73.) In opposition, Plaintiff asserts emotional distress damages are available, citing Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1040: 'where a plaintiff sufficiently alleges intentional or affirmative conduct Calendar No.: Event ID:  TENTATIVE RULINGS

3053655  9 CASE NUMBER: CASE TITLE:  GRUNVALD VS HIRJI & CHAU LLP [IMAGED]  37-2023-00041181-CU-PN-CTL by an attorney or noneconomic injury resulting from an attorney's professional negligence, recovery of emotional distress damages is permitted.' Plaintiff has not alleged intentional conduct in her sixth cause of action; her claim for emotional distress damages is based instead on Defendants' alleged negligence.

(Compl. ¶ 324.) Further, Plaintiff has not identified any noneconomic injury resulting from the alleged professional negligence.

Furthermore, 'there is no independent tort of negligent infliction of emotional distress.' (Belen v. Ryan Seacrest Productions, LLC (2021) 65 Cal.App.5th 1145, 1165.) Instead, the claim is simply 'the tort of negligence to which the traditional elements of duty, breach of duty, causation, and damages apply.' (Ibid.) Plaintiff has already asserted a negligence claim by way of her first cause of action for legal malpractice.

The demurrer is sustained without leave to amend on Plaintiff's sixth cause of action. (Code Civ. Proc. § 430.10(e).) Seventh Cause of Action – Intentional Infliction of Emotional Distress Plaintiff alleges Partner Defendants' alleged intentional misrepresentations regarding the contingency fee agreement and preparation of the federal and state court complaints, and Defendants' decision to terminate their representation of Plaintiff shortly before the complaints were due to be filed, was 'outrageous conduct which was meant to cause Plaintiff extreme emotional suffering.' (Compl. ¶ 329.) 'The elements of the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.' (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.) 'Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.' (Ibid.) '[T]he trial court initially determines whether a defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. Where reasonable men can differ, the jury determines whether the conduct has been extreme and outrageous to result in liability. Otherwise stated, the court determines whether severe emotional distress can be found; the jury determines whether on the evidence it has, in fact, existed.' (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1614.) Plaintiff has not sufficiently alleged extreme and outrageous conduct by the Partner Defendants. Her allegations that Partner Defendants allegedly represented to her that they would provide a draft contingency agreement and prepare the complaints, and that Partner Defendants terminated the representation, are not 'so extreme and outrageous as to permit recovery.' (Plotnik at p. 1614.) The demurrer is sustained with leave to amend on Plaintiff's seventh cause of action. (Code Civ. Proc. § 430.10(e).) Plaintiff is to file a First Amended Complaint on or before March 8, 2024.

Defendants' Motion to Strike Allegations in Complaint (ROA 22) is DENIED on the grounds it is moot, in light of the court's ruling sustaining Defendants' demurrer with leave to amend as to Plaintiff's fraud and intentional infliction of emotional distress claims.

Once confirmed, this ruling shall be the final ruling of the court and no further written order is required.

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