Judge: Upinder S. Kalra, Case: 20STCV41299, Date: 2023-10-31 Tentative Ruling
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Case Number: 20STCV41299 Hearing Date: February 6, 2024 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: February
6, 2024
CASE NAME: Pacific
Attorney Group v. Fred Panahi, et al.
CASE NO.: 20STCV41299
DEMURRER
TO FIRST AMENDED COMPLAINT
MOVING PARTY: Defendants
Kamelia Jalilvand and Jalilvand Law Corporation
RESPONDING PARTY(S): Plaintiff Pacific Attorney Group
REQUESTED RELIEF:
1. Demurrer
to the Complaint for failure to state sufficient facts to constitute a cause of
action; Plaintiff lacks standing to sue; and Ms. Jalilvand individually has no
liability to Plaintiff.
TENTATIVE RULING:
1. Demurrer
to the FAC is SUSTAINED without leave to amend.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On October 28, 2020, Plaintiff Pacific Attorney Group (Plaintiff)
filed a Complaint against Defendants Fred Panahi, Kamelia Jalilvand, and
Jalilvand Law Corporation with ten causes of action for:
1. Intentional Interference with Prospective Economic
Advantage;
2. Negligent Interference with Prospective Economic Advantage;
3. Fraud;
4. Conversion;
5. Breach of Written Contract;
6. Unjust Enrichment;
7. Declaratory Relief;
8. Accounting;
9. Constructive Trust;
10. Money Had and Received.
Plaintiff alleges that Defendant Panahi retained their
office to represent him in a personal injury matter on a contingency fee basis.
Plaintiff alleges that they were entitled to one-third of the gross amount
recovered from any source in connection with the claim or, if Defendant Panahi
terminated their services, to pay the value of their services from any recovery
in connection with the claim. Defendant Panahi terminated Plaintiff’s
representation and retained Defendants Jalilvand and Jalilvand Law Corporation.
Plaintiff alleges to have informed Jalilvand Defendants of their attorney lien.
Plaintiff alleges that Defendants refused to confirm the true settlement
amount, refused to share the settlement agreement, and refused to honor the
attorney lien.
On December 17, 2020, Defendants Kamelia Jalilvand and
Jalilvand Law Corporation (Moving Defendants) filed a Special Motion to Strike
under CCP § 425.16. Plaintiff opposed this motion.
On January 29, 2021, the court denied the Special Motion to
Strike as to the Seventh Cause of Action for Declaratory Relief and granted the
Special Motion to Strike as to the remaining causes of action. Moving
Defendants appealed, seeking to strike the Seventh Cause of Action, too.
On June 15, 2023, the Court of Appeal issued a remittitur
which affirmed the trial court’s ruling on the Special Motion to Strike.
On
October 31, 2023, the court SUSTAINED Moving Defendants’ demurrer to the
Complaint with leave to amend and DENIED their motion to strike as moot.
On
November 22, 2023, Plaintiff filed a First Amended Complaint (FAC).
On December 22, 2023, Moving Defendants filed the instant
demurrer. On January 24, 2024, Plaintiff filed an opposition. On January 30,
2024, Moving Defendants filed a reply.
LEGAL STANDARD:
Meet and Confer
Prior to filing a demurrer, the demurring party is required
to satisfy their meet and confer obligations pursuant to Code of Civ. Proc.
(CCP) §430.41 and demonstrate that they so satisfied their meet and confer
obligation by submitting a declaration pursuant to CCP §430.41(a)(2) & (3). Here, the parties met and conferred via
telephone on December 20, 2023. (Mahram Decl. ¶ 4.)
Demurrer
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.¿In a demurrer proceeding, the defects
must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004)
116 Cal.App.4th 968, 994.)¿“A demurrer tests the pleadings alone and not the
evidence or other extrinsic matters. …. The only issue involved in a demurrer
hearing is whether the complaint, as it stands, unconnected with extraneous
matters, states a cause of action.”¿(Hahn¿147
Cal.App.4th at 747.)
ANALYSIS:
Moving Defendants contend that Plaintiff failed to address
any of the issues leave to amend was granted to address and that the demurrer
should be sustained without leave to amend. Plaintiff argues that Mojtahedi does not apply here because
they named their former client, Defendant Panahi, for the purpose of
establishing the amount and enforceability of its lien. Moving Defendants reply
that this court already adjudicated that Mojtahedi
applies and Plaintiff should have raised this argument at the first demurrer
hearing or filed a motion for reconsideration.
A plaintiff’s declaratory relief complaint must specifically
allege that an actual, present controversy exists, and must state the facts of
the respective claims concerning the disputed subject matter. (City of Cotati v. Cashman (2002) 29
Cal.4th 69, 79; Connerly v.
Schwarzenegger (2007) 146 Cal.App.4th 739, 746 (Connerly).) A sufficient complaint: (1) sets forth facts showing
the existence of an actual controversy relating to the parties’ legal rights
and duties, and (2) requests the court to adjudge these rights and duties. (Ludgate Ins. Co. v. Lockheed Martin Corp.
(2000) 82 Cal.App.4th 592, 606; Qualified Patients Ass’n v. City of Anaheim
(2010) 187 Cal.App.4th 734, 751; see also Travers
v. Louden (1967) 254.Cal.App.2d 926, 931-32 (Travers) [commenting that declaratory relief may be appropriate for
parties with a continuing relationship].) A declaratory relief claim should not
be used to determine issues that are already engaged by other causes of action.
(Hood v. Superior Court (1995) 33
Cal.App.4th 319, 324.)
Failure to establish standing is a separate ground for
demurrer based on a failure to allege facts sufficient to constitute a cause of
action. (CCP § 430.10(e).) “It is well established that after the client
obtains a judgment, the attorney must bring a separate, independent action
against the client to establish the existence of the lien, to determine the
amount of the lien, and to enforce it.” (Mojtahedi, supra, at p. 977-98.)
(internal quotations omitted.) Like Mojtahedi,
where the plaintiff failed to allege facts establishing that he adjudicated the
existence, value, or enforceability of his lien, here, Plaintiff alleges that
Defendant Panahi “signed a contingency fee agreement . . . promising to pay
thirty three and one-third of all gross amounts recovered from any source in
connection with the claim” or “the value of Plaintiff’s services out of any
recovery . . . received” if Defendant Panahi terminated Plaintiff’s services.
(Compl. ¶ 9.) This does not allege that Plaintiff has already adjudicated the
existence, value, or enforceability of his lien.
Upon reviewing the FAC, Plaintiff has not only failed to
sufficiently allege facts but failed to amend its factual contentions at all from its prior Complaint. Indeed,
the only changes are deleting causes of action that were dismissed due to the
Anti-SLAPP motion. The other factual allegations are verbatim and retain the same paragraph numbers. The court’s
analysis accordingly remains unchanged from the first demurrer. However, this
time, leave to amend will not be forthcoming.
Thus, the court SUSTAINS Moving Defendants’ demurrer
without leave to amend.
CONCLUSION:
For
the foregoing reasons, the Court decides the pending motion as follows:
1.Demurrer to the FAC is SUSTAINED
without leave to amend.
Pursuant to CCP § 581d, this written
order of dismissal constitutes a judgment and shall be effective for all
purposes. The Clerk shall note this judgment in the register of actions in this
case.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: February 5, 2024 __________________________________ Upinder
S. Kalra
Judge
of the Superior Court