Judge Stephen I. Goorvitch, Case 21STCV44349 2023-03-27 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 21STCV44349, Date: 2023-03-27 Tentative Ruling

Case Number: 21STCV44349 Hearing Date: March 27, 2023 Dept: 39

Jasmine Quezada, et al. v. Patrick Valdez, et al.

Case No. 21STCV44349

Demurrer

BACKGROUND

Plaintiffs Jasmine and Sigifredo Quezada (collectively, “Plaintiffs”) filed this action against Patrick Valdez (“Valdez”) and his law firm, the Valdez Law Firm (collectively, “Defendants”), asserting a single cause of action for fraud. Plaintiffs allege that Valdez represented that he could successfully obtain a green card for Sigifredo Quezada “[w]hen he in fact knew he did not have the necessary legal elements to successfully obtain plaintiff, Sigifredo Quezada, legal residency (resident card) for the USA.” Defendant now demurs to this single cause of action.

LEGAL STANDARD

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint. (Code Civ. Proc., § 452.) “This rule of liberal construction means that the reviewing court draws inferences favorable to the Farias, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

REQUEST FOR JUDICIAL NOTICE

Defendants request judicial notice of three documents: (1) The operative complaint in this matter; (2) A brief Plaintiffs filed before the U.S. Court of Appeals for the Ninth Circuit; and (3) The underlying retainer agreement, which states that Valdez “has made no guarantee with regard to the successful outcome of this case . . . .” The Court grants the request with respect to Exhibit #1 and Exhibit #2, per Evidence Code section 452(d). The Court denies the request with respect to Exhibit #3. Defendants rely on Evidence Code section 452(h). The Court cannot take judicial notice of a contract between the parties under this section. (See Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145.)

DISCUSSION

Plaintiffs assert once cause of action for fraud. “This means: (1) general pleading of the legal conclusion of fraud is insufficient; and (2) every element of the cause of action for fraud must be alleged in full, factually and specifically, and the policy of liberal construction of pleading will not usually be invoked to sustain a pleading that is defective in any material respect.” (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331.) To state a claim for promissory fraud, Plaintiffs must allege specific factual circumstances beyond contract breach, which reflect Defendants’ contemporaneous intent not to perform. (Hills Transportation Co. v. Southwest Forest Ind., Inc. (1968) 266 Cal.App.2d 702, 707.)

In this case, Plaintiffs allege that Valdez misrepresented that he could obtain a resident card for Sigifredo Quezada, knowing that he did not qualify for one. Plaintiffs do not allege any facts demonstrating that Valdez knew at the time that his representations were false. Therefore, the Court sustains the demurrer to Plaintiffs’ complaint.

The Court denies Plaintiffs’ request for leave to amend, as it does not appear that any amendment would be successful. Plaintiffs’ brief before the U.S. Court of Appeals for the Ninth Circuit makes clear that there was an open question whether Sigifredo Quezada was eligible for a resident visa. In the brief, Plaintiffs concede:

“This case raises an issue which has yet to be addressed by the federal courts. Plaintiffs-Appellants . . . challenge a denial of an immigrant visa. However, they do not challenge a consular officials’ discretionary determination. Rather, their challenge is one of pure statutory interpretation, as they challenge the Department of State’s legal determination that the ‘permanent bar’ at 7 U.S.C. § 1182(a)(9)(C)(i)(I) applies to time spent in the United States as a minor.”

(Request for Judicial Notice, Exh. #2, p. 1.) Plaintiffs appeal “present[ed] the pure statutory issue of whether the ‘permanent bar’ to the inadmissibility at 8 U.S.C. § 1182(a)(9)(C)(i)(I) bars individuals from obtaining permanent residency if they accrued unlawful presence as a minor.” (Id., Exh. #2, p. 16.) Plaintiffs argued that the Ninth Circuit “should find that 8 U.S.C. § 1182(a)(9)(C)(i)(I) does not apply to time spent in the Untied States while the applicant for residency was a minor.” (Id., Exh. #2, p. 8.) In light of this open question of law, it is unclear how Plaintiffs ever could allege facts demonstrating that Valdez knew that Sigifredo Quezada would not qualify for an immigration visa when he accepted the representation. Plaintiffs’ counsel articulates no factual allegations suggesting that an amendment would be successful.

The Court considered whether to afford leave to amend to allege other causes of action, such as professional negligence. However, the statute of limitations is one year from when the client discovered, or should have discovered, the cause of action, or four years from the date of the wrongful act, whichever occurs first. (Code Civ. Proc., § 340.6(a).) According to Plaintiffs’ Ninth Circuit brief, Sigifredo Quezada’s application for an immigrant visa was denied on December 6, 2019. (Request for Judicial Notice, Exh. #3, p. 6.) Therefore, it appears that a legal malpractice claim would be untimely. Plaintiffs’ counsel did not request leave to assert any claims other than fraud.

CONCLUSION AND ORDER

Based upon the foregoing, the Court orders as follows:

1. Defendants’ demurrer is sustained.

2. The Court denies leave to amend.

3. This case is dismissed with prejudice.

4. Defendants’ counsel shall provide notice and file proof of such with the Court.