Judge Thomas D. Long, Case 21STCV39682 2022-09-01 Tentative Ruling

On June 21, 2022, Plaintiff Randi Sue Gerber filed a first amended complaint (“FAC”) against Defendants Kira Masteller; Lewitt, Hackman, Shapiro, Marshall & Harlan (erroneously sued as Lewitt Hackman); Fred Berger; Sarai Estupinian; Sarai Nursing Hospice Staffing, Inc.; and Avieli Itah. “The parties and relevant individuals share a last name. For clarity, convenience, and in order to avoid confusion, we refer to them by their first names and intend no disrespect.” (Cruz v. Superior Court (2004) 120 Cal.App.4th 175, 188, fn. 13.)

The FAC alleges (1) breach of contract, (2) breach of the covenant of good faith and fair dealing, (3) professional negligence and legal malpractice; (4) breach of fiduciary duty; (5) elder abuse; (6) wrongful death, (7) conversion, (8) unfair business practices, (9) intentional interference with contractual relations, (10) intentional interference with prospective economic advantage, and (11) negligence interference with prospective economic advantage.

On July 27, 2022, Kira Masteller and Lewitt, Hackman, Shapiro, Marshall & Harlan (collectively, “Defendants”) filed a demurrer. Plaintiff did not file an opposition.

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.) “Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice.” (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 556.)

As with their prior demurrer, Defendants argue Plaintiff lacks standing to bring legal malpractice causes of action because they owed her no duty. “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.) A claim for legal malpractice requires: (1) breach of the attorney’s duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a proximate causal connection between the negligent conduct and the resulting injury; and (3) actual loss or damage resulting from the negligence. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 699.)

The first and second causes of action allege breach of contract and breach of the implied covenant of good faith and faith dealing in connection with Plaintiff’s mother, Marcie H. Sherman, retaining Defendants for legal services. The third cause of action alleges legal malpractice and the fourth cause of action alleges breach of fiduciary duty in Defendants’ representation of Marcie Sherman. The fifth cause of action alleges elder abuse through Masteller’s failure to investigate abuse towards Plaintiff’s uncle, Ed Sherman, mishandling Ed’s estate, and isolating Marcie from Plaintiff. The sixth cause of action alleges wrongful death of Marcie Sherman and Ed Sherman through these actions. The seventh cause of action alleges Defendants converted legal fees that were paid to them through fraud, deceit, and misconduct. The eighth cause of action alleges unfair business practices based on conduct alleged in the prior causes of action. The ninth, tenth, and eleventh causes of action allege interference with the retainer agreement Marcie Sherman signed, Ed Sherman’s will, and Plaintiff’s power of attorney with Marcie Sherman. Accordingly, the gravamen of all causes of action is legal malpractice.

Defendants argue they owed no duty to Plaintiff. (Demurrer at pp. 17-18.) “A key element of any action for professional malpractice is the establishment of a duty by the professional to the claimant. Absent duty there can be no breach and no negligence.” (Goldberg v. Frye (1990) 217 Cal.App.3d 1258, 1267.) The complaint alleges Defendants had a professional relationship with Marcie Sherman. Marcie hired Masteller to negotiate and prepare a settlement agreement on Ed Sherman’s behalf. (FAC ¶ 17.) Marcie also hired Defendants to contest a probate proceeding regarding Ed Sherman’s estate. (FAC ¶ 18.) In Fall 2018, Defendants sent Marcie unsolicited trust documents. (FAC ¶ 20.) The complaint contains no facts establishing Defendants had a professional relationship with Plaintiff or owed a duty to Plaintiff.

Defendants also argue Plaintiff’s claims are barred to the extent that the malpractice is based on questions of Marcie Sherman’s intent or capacity and Plaintiff’s status as an intended beneficiary. (Demurrer at pp. 18-20.) When “there is a question about whether the third-party beneficiary was, in fact, the decedent’s intended beneficiary, and the beneficiary’s claim is that the lawyer failed to adequately ascertain the testator’s intent or capacity, the lawyer will not be held accountable to the beneficiary—because any other conclusion would place the lawyer in an untenable position of divided loyalty.” (Boranian v. Clark (2004) 123 Cal.App.4th 1012, 1014.) Here, Plaintiff alleges Fred Berger had almost no involvement with the family for decades until a few months before Marcie Sherman’s death. (FAC ¶ 21.) The day after Marcie moved into Fred’s house, Marcie signed a trust document prepared by Defendants that named Fred as trustee. (FAC ¶ 24.) Thus, the question is whether Marcie intended for Plaintiff to be the beneficiary. The FAC does not allege facts showing Defendants owed Plaintiff a duty in that regard.

Defendants argue that after Marcie’s death, they owed duties only to the trustee and not to Plaintiff as a beneficiary. (Demurrer at p. 20.) “[T]he trustee, rather than the beneficiary, is the client of an attorney who gives legal advice to the trustee, whether on the subject of trust administration [citations’ or of the trustee’s own potential liability [citation].” (Wells Fargo Bank v. Superior Court (2000) 22 Cal.4th 201, 213.) Marcie signed a trust document naming Fred as trustee of her estate, and Fred engaged Defendants to represent him during probate proceedings. (FAC ¶¶ 24, 30.) Because Plaintiff alleges Fred was the trustee, the complaint indicates Defendants owed a duty to him, not Plaintiff.

Defendants also argue Plaintiff has no standing to bring claims on Marcie’s behalf because Fred, not Plaintiff, is Marcie’s successor-in-interest. (Demurrer at pp. 16-17; see RJN, Exs. 3-4.) Therefore, Plaintiff does not have standing to make claims on behalf of Marcie Sherman or Marcie Sherman’s estate. Plaintiff’s allegation that she is the successor-in-interest are contradicted by judicially noticeable court records reflecting Fred’s status as executor and trustee.

Accordingly, the demurrer is sustained because the FAC does not establish that Defendants owed a duty to Plaintiff or that Plaintiff has standing to sue on behalf of Marci Sherman or her estate.

To sustain a demurrer on the statute of limitations, the running of the statute must appear clearly and affirmatively on the face of the complaint. (Geneva Towers Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4th 769, 781.) “‘[I]t is not enough that the complaint might be time-barred. [Citation.]’” (Ibid.)

Defendants argue all causes of action, except for fraud, are barred by the statute of limitations for legal malpractice. (Demurrer at pp. 20-25.) An action against an attorney for a wrongful act or omission arising from professional services must be brought within the earlier of (1) one year after the plaintiff discovers (or through the use of reasonable diligence should have discovered) the fact constituting the wrongful act or omission, or (2) four years after the date of the wrongful act or omission. (Code Civ. Proc., § 340.6, subd. (a).) Defendants argue Plaintiff suffered actual injury in October 2018 and knew or should have known the facts giving rise to her claims by August 2019. (Demurrer at pp. 22-24.) With respect to the probate proceedings for Ed Sherman, Marcie suffered actual injury before her death on October 27, 2018. (See FAC ¶¶ 18, 23.) Plaintiff also knew of the other alleged malpractice by the conclusion of the probate proceedings in August 2019. (Demurrer at p. 23; see RJN, Exs. 8, 14, 15.)

The demurrer is SUSTAINED. Because Plaintiff has already had an opportunity to amend, did not remedy any of the Complaint’s defects, and did not show how she can further amend the FAC to remedy the defects, no leave to amend is granted.

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