Judge Thomas D. Long, Case 21STCV03013 2022-11-01 Tentative Ruling

On January 19, 2021, Plaintiff Nithya Vinayagam filed this action against Defendant Kyle James Todd. The Court entered default against Defendant on May 16, 2022. On July 11, 2022 and July 27, 2022, the Court denied Plaintiff’s request for entry of default judgment without prejudice and explained the many deficiencies in Plaintiff’s request.

On August 10, 2022, the Court again denied Plaintiff’s amended request for entry of default judgment without prejudice. The Court’s order again detailed the many deficiencies in Plaintiff’s request for default judgment. It also stated that, after considering that request and prior requests for entry of default judgment, the Court was inclined to dismiss this action because it appears that the causes of action are not viable and Plaintiff will not be able to prove any damages. The Court therefore set an Order to Show Cause Re: Dismissal and permitted Plaintiff to file an amended request for entry of default judgment that remedied all deficiencies and/or a brief regarding the Court’s observations about Plaintiff’s inability to prove damages or otherwise demonstrating why this case should not be dismissed. On September 22, 2022, the Court continued the OSC from October 11, 2022 to November 1, 2022.

On September 28, 2022, Plaintiff filed another amended request for entry of default judgment. Plaintiff did not file a brief regarding dismissal.

Plaintiff again did not file a brief summary of the case identifying the parties and the nature of Plaintiff’s claim. (See California Rules of Court, rule 3.1800(a).) Plaintiff also did not file a proposed judgment.

Plaintiff seeks a judgment of $9,010.366.00, consisting of $6,006,389.00 in damages, $3,003,627.00 in prejudgment interest, and $350.00 in costs. It is unclear how Plaintiff calculated the requested $6,006,398.00 in damages, as her declaration details only $3,040,330.00 related to lost wages and treble damages plus $1,000,000 for emotional distress.

“‘Plaintiffs in a default judgment proceeding must prove they are entitled to the damages claimed.’ [Citation].” (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 288.) “[T]he plaintiff must affirmatively establish his entitlement to the specific judgment requested.” (Id. at p. 287.)

The first seven causes of action all arise from Defendant’s representation of Plaintiff in two other cases. “Where the injury is suffered by reason of an attorney’s professional negligence, the gravamen of the claim is legal malpractice, regardless of whether it is pled in tort or contract.” (Kracht v. Perrin, Gartland & Doyle (1990) 219 Cal.App.3d 1019, 1022.) “In a legal malpractice action, the attorney is liable for all the damages proximately caused by the negligent act or omission. [Citation.] Where the attorney’s negligence does not result in a total loss of the client’s claim, the measure of damages is the difference between what was recovered and what would have been recovered but for the attorney’s wrongful act or omission.” (Norton v. Superior Court (1994) 24 Cal.App.4th 1750, 1758.) Plaintiff is therefore able to recover only “the difference between what a competent attorney would have obtained and what the negligent attorney obtained.” (Ibid.)

For the first cause of action for fraud (intentional and negligent misrepresentation), second cause of action for fraudulent concealment, and third cause of action for wire fraud, Plaintiff alleges she paid Defendant to represent her in Vinayagam v. Cronous, Case No. 2:18-cv-01206 in the United States District Court for the District of Nevada. (Vinayagam Decl. ¶¶ 55, 84.) Plaintiff claims $90,263.00 in unpaid wages from March 1, 2009 to September 28, 2010 in connection with the Cronous case. (Vinayagam Decl. ¶ 58.) Based on those unpaid wages, Plaintiff requests “Treble damages from RICO enterprise Cronous” in the amount of $270,789.00. (Vinayagam Decl. ¶ 58.) She also requests daily interest of $51.93 (seven percent) for 4958 days, in the total amount of $257,477.00. (Vinayagam Decl. ¶ 58.) In total, Plaintiff declares she “lost $528,266 in unpaid wages from RICO enterprise Cronous.” (Vinayagam Decl. ¶ 58.) Plaintiff also hired Defendant to represent her in Vinayagam v. Shravan Debbad, NriSoft Inc., but he stopped representing her and withdrew. (Vinayagam Decl. ¶¶ 59, 68, 84.) Plaintiff claims $497,889.00 in unpaid wages from February 2011 to December 2011, plus $374,585.00 in interest, for a total of $872,474.00. (Vinayagam Decl. ¶ 61.) Because Plaintiff has not been able to adjust her immigration status and work since December 24, 2015, she lost an additional $2,181,389.00 in income. (Vinayagam Decl. ¶ 63.)

For the fourth cause of action for professional negligence, fifth cause of action for intentional breach of fiduciary duty, and sixth cause of action for breach of contract, Plaintiff claims a total of $3,579,579.00 in damages due to lost compensation. (Vinayagam Decl. ¶¶ 85, 91, 102.) This appears to be the total of alleged lost income from Cronous and Nrisoft, plus interest on that amount, plus loss of income since December 24, 2015. (Id. at ¶ 102.)

For the seventh cause of action for legal malpractice, Plaintiff similarly claims $3,579,579.00 in damages for loss of compensation from Cronous and Nrisoft, plus her payment of $6,389.17 in legal fees to Defendant. (Vinayagam Decl. ¶ 102.)

Supporting the Cronous damages, the cited exhibit is Plaintiff’s counsel’s pretrial brief in the Cronous case without any supporting evidence, and Plaintiff does not establish any personal knowledge of its contents. (Vinayagam Decl., Ex. “Pre Trial Brief.”) Supporting the Nrisoft damages, the cited exhibit is a proof of service of a default judgment package, without any supporting evidence. (Vinayagam Decl., Ex. “Nrisoft - Default.”)

Plaintiff again does not provide admissible evidence proving the value of her claims in the underlying lawsuits. To the extent that Plaintiff claims that Defendant’s conduct led to her losing the cases and not recovering the damages owed to her by Cronous and Nrisoft, that is contradicted by her statements that the cases remain pending. (Vinayagam Decl. ¶¶ 57, 64, 67, 73, 80, 90, 94-96, 100, 112.)

Plaintiff cannot prove damages for legal malpractice in the underlying lawsuits. Because those cases are still pending, Plaintiff cannot yet prove the difference between what she did obtain and could have obtained, and she cannot prove any damages for legal malpractice.

The first, second, third, fourth, fifth, sixth, and seventh causes of action are therefore subject to dismissal.

The statute of limitations for fraud is three years. (Code Civ. Proc., § 338.) For the first and second causes of action, Plaintiff states that Defendant confirmed in a January 18, 2017 email that he had concealed the fact that he has no expertise and experience in handling H1B visa wage claims, H1B fraud, and H1B visa unlawful termination. (Vinayagam Decl. ¶¶ 19, 54, 65 & Ex. “Fraud”; see Complaint ¶¶ 80-85.) Plaintiff filed this action on January 19, 2021, more than three years after her discovery of the alleged fraud. And despite Plaintiff’s position that the continuing violations doctrine applies, Plaintiff does not clearly identify any harm caused by the other alleged concealments, including Defendant failing to inform the court that he stopped representing Plaintiff or concealing the fact that he still represented Plaintiff. (See Vinayagam Decl. ¶ 68; Complaint ¶¶ 86-88.)

Accordingly, on their face, the first and second causes of action are barred by the statute of limitations. This is an additional ground for dismissing the first and second causes of action.

The eighth cause of action for perjury is not a valid civil cause of action, and Plaintiff’s declaration does not address it except for passing references to perjury in Defendant’s request to withdraw as counsel in the Nrisoft case. (Vinayagam Decl. ¶¶ 72, 83, 90, 96.)

Plaintiff cannot obtain damages for this cause of action, and it is subject to dismissal.

For the ninth cause of action for unfair business practices, Plaintiff relies on the above-described causes of action and seeks restitution of $3,579.579.00. (Vinayagam Decl. ¶¶ 108, 110.)

As discussed above, it appears that Plaintiff cannot prove her entitlement to the $3,579.579.00. Accordingly, the ninth cause of action is subject to dismissal.

For the tenth cause of action for intentional and negligent infliction of emotional distress, Plaintiff claims $1,000,000.00 in damages caused by Defendant’s mishandling of the Cronous and Nrisoft cases, engagement in “misleading, false, or deceptive acts to force Plaintiff enter into a contract with him,” and breach of legal duty. (Vinayagam Decl. ¶¶ 111, 114.) Plaintiff alleges that Defendant knew that Plaintiff suffers from diabetes, and Plaintiff suffers from “great pain of mind and body, shock, emotional distress, physical manifestations of emotional distress, embarrassment, loss of self esteem, disgrace, humiliation, and loss of enjoyment of life; has suffered and continues to suffer and was prevented and will continue to be prevented from performing daily activities and obtaining the full enjoyment of life; will sustain loss of earnings and earning capacity, and/or has incurred and will continue to incur expenses for medical treatment.” (Id. ¶ 114.)

This claim is rooted in Defendant’s alleged malpractice, and “damages for emotional distress arising out of acts which invade an interest protected by established tort law are recoverable only if the claimed emotional distress naturally ensues from the acts complained of. Plaintiff has made no showing that emotional distress naturally ensues from the garden variety claim of legal malpractice involved here.” (Merenda v. Superior Court (1992) 3 Cal.App.4th 1, 6 (Merenda).)

Some of Plaintiff’s damages may include her requested punitive damages of $1,000,000.00 in each of the first, second, third, and fifth causes of action. (Vinayagam Decl. ¶¶ 64, 68, 74, 85, 91.)

The amount of punitive damages must reasonably relate to the amount of actual damages. (Uzyel v. Kadisha (2010) 188 Cal.App.4th 866, 924.) “An award of punitive damages hinges on three factors: the reprehensibility of the defendant’s conduct; the reasonableness of the relationship between the award and the plaintiff’s harm; and, in view of the defendant’s financial condition, the amount necessary to punish him or her and discourage future wrongful conduct.” (Kelly v. Haag (2006) 145 Cal.App.4th 910, 914.)

First, Plaintiff has not proven any actual damages upon which to base punitive damages. Second, Plaintiff also does not provide any evidence of Defendant’s financial condition, so the Court cannot determine whether the request for punitive damages is reasonable to punish and deter. (On September 26, 2022, Plaintiff filed with the Court “PLAINTIFF’S REQUESTS FOR PRODUCTION OF FINANCIAL DOCUMENTS,” requesting that Defendant produce certain financial documents pursuant to Code of Civil Procedure sections 209.010 and 209.260. This is not the proper method for propounding discovery requests, and such a request still does not establish Defendant’s financial condition.)

Claims for breach of contract accrue prejudgment interest at a rate of 10-percent. (Civ. Code, § 3289, subd. (b).) Tort claims, such as Plaintiff’s other claims, accrue prejudgment interest at a rate of 7-percent. (Cal. Const. Art. 15 § 1.)

Plaintiff’s interest declaration, which lacks the required detailed calculations, seeks both 10-percent interest ($1,902,976.00) and 7-percent interest ($1,100,651.00) on unpaid wages and lost income. Plaintiff cannot recover interest twice on the same damages.

Plaintiff’s CIV-100 requests $30.00 for “Print, Mailing Costs” and $70.00 for “Efiling, Download docs from Courtwebsite.” These are not recoverable costs. (See Code Civ. Proc., § 1033.5.) The request for $250.00 for process server fees is reasonable and allowable.

As discussed in detail above, Plaintiff’s causes of action are not viable and she has shown that she cannot prove any damages. Plaintiff cannot prove any malpractice damages for the first, second, third, fourth, fifth, sixth, and seventh causes of action. The underlying actions remain pending, and after multiple attempts, Plaintiff has failed to provide competent evidence of any malpractice damages. The first and second causes of action are also facially barred by the statute of limitations. The eighth cause of action is not a valid civil cause of action. The ninth cause of action is derivative of the malpractice causes of action, and it too fails in the absence of malpractice. For the tenth cause of action, Plaintiff does not allege and cannot prove emotional distress that naturally ensues from a basic claim of legal malpractice, even assuming she could prove any legal malpractice.

Plaintiff has now had four attempts to prove her damages. It is clear to the Court that she will be unable to do so. The Court therefore orders this action DISMISSED WITHOUT PREJUDICE.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court