Judge: Stephen P. Pfahler, Case: 22CHCV00801, Date: 2023-03-15 Tentative Ruling
Case Number: 22CHCV00801 Hearing Date: March 15, 2023 Dept: F49
Dept. F-49
Date: 3-15-23
Case #
Trial Date: Not Set
DEMURRER
MOVING PARTY: Defendant, Martinian & Associates, et
al.
RESPONDING PARTY: Plaintiff, Margarita Carranza, pro per
RELIEF REQUESTED
Demurrer to the First Amended Complaint for Attorneys
Misconduct
·
1st Cause of Action: Breach of
Contract Cause of Action
SUMMARY OF ACTION
Defendants Martinian & Associates, et al. represented
Plaintiff Margrarita Carranza in an action against the County of Los Angeles,
et al. for Negligence, Government Tort Liability, and Premises Liabiity
(19STCV05567). According to Plaintiff the case settled for $50,000, which led
to a (contingency recovery) fee of $25,000. Plaintiff expected a net payment of
$25,000, but when presented with the final check, additional “expenses” were
also deducted, thereby leading to a net payment of “20K.” The expenses included
medical “liens,” which Plaintiff contends were never “authorized.”
On September 29, 2022, Plaintiff, in pro per, filed a
complaint for Breach of Contract and General Negligence. On January 12, 2023,
Plaintiff, in pro per, filed a first amended complaint for “Attorney
Misconduct.” The first amended complaint contains a conformed copy of a
December 8, 2022, filed “Request to Re-Open Complaint,” as well as a Breach of
Contract, General Negligence, and Fraud attachments.
RULING:
Sustained with Leave to Amend.
Request for
Judicial Notice: Denied.
While the items
are arguably referenced in the case, the documents are not subject to judicial
notice as court orders or government agency issued documents. (Scott v. JPMorgan Chase Bank, N.A. (2013) 214
Cal.App.4th 743, 759; Wolkowitz v. Redland Ins. Co. (2003) 112
Cal.App.4th 154, 160 (footnotes 10 & 11).) Even if the court took notice of
the existence of the documents, the court declines to take judicial notice of
the content of the documents for the truth of the matter asserted.
Defendants Martinian & Associates, et al. brings the
subject demurrer to the first amended complaint for “Attorney Misconduct” on
grounds the operative pleading fails to allege a claim for breach of contract. Defendant
in a 5 court/7 calendar day late opposition challenges the request for judicial
notice. The opposition otherwise lacks any apparent substantive challenge to
the merits of the demurrer. The court electronic filing system shows no reply
at the time of the tentative ruling publication cutoff.
A demurrer is an objection to a pleading, the grounds for
which are apparent from either the face of the complaint or a matter of which
the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see
also Blank v. Kirwan (1985) 39 Cal.3d
311, 318.) The purpose of a demurrer is to challenge the sufficiency of a
pleading “by raising questions of law.” (Postley
v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a
pleading, for the purpose of determining its effect, its allegations must be
liberally construed, with a view to substantial justice between the parties.”
(Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all
material facts properly pleaded, but not contentions, deductions or conclusions
of fact or law . . . .” ’ ” (Berkley v.
Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the
court liberally construes the complaint to determine whether a cause of action
has been stated. (Picton v. Anderson
Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)
“A demurrer for uncertainty is
strictly construed, even where a complaint is in some respects uncertain,
because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of
California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986)
185 Cal.App.3d 135, 139 [“[U]nder our liberal
pleading rules, where the complaint contains substantive factual allegations
sufficiently apprising defendant of the issues it is being asked to meet, a
demurrer for uncertainty should be overruled or plaintiff given leave to
amend.]
The January 12, 2023, filed a first amended complaint
identifies an action for “Attorney Misconduct” in the caption. The first
amended complaint contains a conformed copy of a December 8, 2022, filed
“Request to Re-Open Complaint,” as well as a Breach of Contract, General
Negligence, and Fraud attachments. The court assumes Defendants are therefore
challenging said form attachments.
1st Cause of Action: Breach of Contract
Martinian
& Associates, et al. challenges the cause of action on grounds that the
complaint fails to articulate the terms or attach a copy of the relied upon
agreement, and furthermore fails to allege a breach of said agreement.
“To state a cause of action for
breach of contract, [a plaintiff] must plead the
contract, his performance of the contract or excuse for nonperformance, [defendant’s]
breach and the resulting damage. (Citation.) Further, the complaint must
indicate on its face whether the contract is written, oral, or implied by
conduct. (Citation.)” (Otworth v.
Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458–59.) In
examining a breach of contract claim, the court is required to examine the
terms, or at least the legal effect of the contract. (Blank v. Kirwan, supra,
39 Cal.3d at p. 318 [“we give the complaint a reasonable interpretation,
reading it as a whole and its parts in their context”]; Otworth v. Southern Pac. Transportation Co.,
supra, 166 Cal.App.3d at p. 459 [“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 and incorporated by reference”]; Construction Protective Services, Inc. v.
TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198–199 [“In an action
based on a written contract, a plaintiff may plead the legal effect of the
contract rather than its precise language”].) Formation of a contract requires
four elements: The parties capable of
contracting, the parties consent, the contract is for a lawful object, and
sufficient consideration is given. (Civ. Code, § 1550.) Consent of the parties
must be free, mutual and communicated by each to the other. (Civ. Code, § 1565.) A cause
of action for damages for breach of contract is comprised of the following
elements: (1) the contract, (2) plaintiff's performance or excuse for
nonperformance, (3) defendant's breach, and (4) the resulting damages to
plaintiff.” (Careau & Co. v. Security
Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.)
The operative complaint
apparently references the parties’ retainer agreement for the underlying case
against County of Los Angeles, et al. Plaintiff appears to allege a breach
based on the excessive withholding of fees and costs on the settlement, thereby
leading to an improperly low net payment to the client. The allegations
themselves allege an actual refusal to agree with the payment of the alleged
medical liens underlying part of the deductions and “fraud” in some capacity
related to claims of “misappropriation” of client funds.
The complaint lacks a copy of the
actual retainer agreement. While Plaintiff need not attach a copy of the
agreement, the court finds the lack of specific terms combined with allegations
of fraud and other alleged wrongful conduct, lacks a sufficiently specific
foundation for a strictly contract based claim. The court declines to parse out
distinctions between potential bases of fraud and the contract itself
especially given the demurrer remains substantively unopposed.
The demurrer is therefore
sustained with 30 days leave to amend. Plaintiff may elect to file a second
amended complaint, or may simply proceed with the two unchallenged causes of
action for negligence and fraud. If Plaintiff declines to file an amended
complaint within the 30-day window, Defendants are ordered to answer the
remaining causes of action within 10 days of the lapsed amendment period.
Case Management Conference set
for April 6, 2023.
Moving parties to give notice.