Judge Thomas D. Long, Case Number: 20STCV44732, Date: 2023-08-17 Tentative Ruling

On August 17, 2023, Plaintiffs Xing Wu and Yingying Jiang filed a third amended complaint (“TAC”) against Defendants Roseann Frazee and Frazee Law Group. The TAC alleges (1) professional misconduct; (2) breach of contract; (3) breach of contract; (4) breach of fiduciary duty; (5) breach of fiduciary duty; (6) conversion; (7) intentional misrepresentation; and (8) negligent misrepresentation.

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, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)

A. The Court Previously Found That the Fifth Cause of Action Stated a Claim.

Defendants demur to the fifth cause of action for breach of fiduciary duty. (Demurrer at pp. 4-6.)

On May 12, 2021, the Court overruled Defendants’ demurrer to the same allegations. Accordingly, this demurrer is an improper request for reconsideration. Although the May 12, 2021 order was issued by a different judge, “‘[f]or one superior court judge, no matter how well intended, even if correct as a matter of law, to nullify a duly made, erroneous ruling of another superior court judge places the second judge in the role of a one-judge appellate court.’ [Citation.]” (Marriage of Oliverez (2015) 238 Cal.App.4th 1242, 1248.)

Furthermore, on the merits, this cause of action continues to be sufficiently alleged. “‘A breach of fiduciary duty can be based upon either negligence or fraud depending on the circumstances.’ [Citations.]” (Knutson v. Foster (2018) 25 Cal.App.5th 1075, 1093.) A breach of fiduciary duty can occur by, among other things, failing to keep the client informed with all the information necessary to make informed decisions and failing to provide a complete copy of the client file when requested. (Id. at pp. 1094-1095.)

Plaintiffs allege that Defendants owed Plaintiffs the duties “to keep Plaintiffs reasonably informed about significant developments relating to the employment or representation, including a duty to disclose any conflicts of interest . . . [and] to provide to Plaintiff his papers and property upon demand, which legally belong to Plaintiff as the client,” among other things. (TAC ¶ 64.) Defendants “failed to use their best efforts on Plaintiffs’ behalf, Defendants failed to keep Plaintiff reasonably informed and communicate with Plaintiff regarding the progress of the Action, and finally, refus[ed] to provide to Plaintiff his file when requested multiple times.” (TAC ¶ 65) These allegations are sufficient to allege breach of fiduciary duties.

B. The Seventh and Eighth Causes of Action Allege Sufficient Facts for Fraud.

Defendants demur to the seventh cause of action for intentional misrepresentation and eighth cause of action for negligent misrepresentation. (Demurrer at pp. 6-8.)

“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. [Citations.] The essential elements of a count for negligent misrepresentation are the same except that it does not require knowledge of falsity but instead requires a misrepresentation of fact by a person who has no reasonable grounds for believing it to be true. [Citations.]” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-231.) “Causes of action for intentional and negligent misrepresentation sound in fraud and, therefore, each element must be pleaded with specificity.” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166.) “‘This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.’ [Citation.]” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 (Lazar).)

Plaintiffs allege that in October 2019, Frazee represented (through an interpreter) that she was one of the “Top 10 Attorneys” in the area and could represent Plaintiffs in the underlying action. (TAC ¶¶ 14-15, 77-78, 86-87.) Frazee assured Plaintiffs that she would provide legal services and representation with reasonable care and skill, promised to provide legal services diligently and competently, and specifically guaranteed that Plaintiffs would prevail in the underlying action. (TAC ¶¶ 15-16, 78-79, 87-88.) Frazee knew that the representations were false, or she unreasonably believed they were true, and she intended for Plaintiffs to rely on the representations so they would retain her. (TAC ¶¶ 82, 91.) As a result of these representations, Plaintiffs signed a retainer agreement. (TAC ¶ 80, 88.) Plaintiffs did not prevail in the underlying action, and they were harmed when judgment was entered against them. (TAC ¶¶ 20, 81, 84, 90, 93.)

Although Plaintiffs’ harm was caused by the alleged malpractice, this cause of action is not duplicative because it alleges misrepresentations that led to the attorney-client relationship, when Plaintiffs were induced to sign the retainer agreement. Plaintiffs allege sufficient facts to establish the “how, when, where, to whom, and by what means” for the representations.

The demurrer is OVERRULED. Defendants are ordered to file an answer within 10 days. (California Rules of Court, rule 3.1320(j)(1).)

The court may, upon a motion or at any time in its discretion: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subds. (a)-(b).)

Defendants move to strike paragraphs 16, 17, and 79 for being barred by the parol evidence rule. (Motion at pp. 6-7.) Parol evidence is admissible to prove fraud. (E.g., Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1180-1183.) The motion to strike is denied on this ground.

Defendants move to strike paragraphs 38 and 70, which allege emotional distress. (Motion at pp. 8-10.) Specifically, Plaintiffs allege “constant stress and worry” when Defendants did not keep them informed during the underlying action and “shock and fright” after learning of the judgment against them. (TAC ¶¶ 38, 70.) “[W]here 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.” (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1040; see Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1097 [feelings of abandonment and betrayal by attorney, anxiety, and undue pressure may support an award of emotional distress damages].) The motion to strike is denied on this ground.

Defendants move to strike paragraph 71 and the prayer for punitive damages. (Motion at pp. 10-12.) A plaintiff can recover punitive damages in tort cases where “the defendant has been guilty of oppression, fraud, or malice.” (Civ. Code § 3294, subd. (a).) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166, fn. omitted.) The Court overrules the demurrer to the fraud causes of action, so there are sufficient facts to support punitive damages based on fraud. The motion to strike is denied.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court