Judge: Virginia Keeny, Case: BC669520, Date: 2025-03-10 Tentative Ruling

Case Number: BC669520    Hearing Date: March 10, 2025    Dept: 45

BERNEY LAW CORPORATION v. ROBERT G BARLETT

DEMURRER to plaintiff’s complaint

Date of Hearing:        March 10, 2025                     Trial Date:       TBD

Department:              45                                            Case No.:        BC669520

Moving Party:            Cross-Defendants Berney Law Corporation and Russell L. Berney

Responding Party:     Cross-Complainant Robert G. Bartlett  

Meet and Confer:      Yes

BACKGROUND

This is an action for declaratory relief on a contract. Plaintiff Berney Law Corporation (“BLC” or “Plaintiff”) represented defendant Robert G. Bartlett (“Bartlett”) in two legal disputes. In the first matter, BLC secured a settlement of the claim and Bartlett agreed in writing to pay BLC a fixed sum on a monthly basis upon Bartlett’s receipt of the settlement proceeds. Bartlett abided by this agreement for a time but has since stopped proving payments to BLC. Bartlett claims that the agreement to distribute the proceeds is unenforceable.

In the second matter, BLC represented Bartlett against a country club which had revoked his privileges after an administrative hearing. BLC discovered that the club had engaged in misconduct regarding member deposits, and subsequently filed a qui tam action against the club with Bartlett as the relator. Bartlett then dismissed all of his individual claims in the matter. That matter settled, and BLC entered into an agreement with Bartlett and co-counsel whereby each would receive a certain portion of the settlement proceeds. Bartlett now claims that BLC is not entitled to its portions of the proceeds from this agreement.

BLC filed its complaint on July 31, 2017, alleging three causes of action: (1) declaratory relief re: Matter 1; (2) declaratory relief re: Matter 2; and (3) declaratory relief (restitution of money paid to defendant).

            Bartlett’s Cross-Complaint

Bartlett initially filed a Cross-Complaint on September 5, 2017. Bartlett then filed a First Amended Cross-Complaint on December 1, 2017, a Second Amended Cross Complaint on July 2, 2018, a Third Amended Cross-Complaint on March 8, 2022, and a Fourth Amended Cross-Complaint on July 7, 2022. On February 1, 2024, the court granted cross-defendants’ motion for judgment on the pleadings as to the first and seventh causes of action raised in the Fourth Amended Cross-Complaint, with leave to amend. On February 9, 2024, Bartlett filed the operative Fifth Amended Cross-Complaint (“5ACC”) against BLC and Russell L. Berney (collectively herein “BLC”). The 5ACC alleges causes of action for (1) elder abuse; (2) declaratory relief; (3) declaratory relief; and (4)-(8) breaches of fiduciary duty.

The 5ACC alleges the following: In June 2016, after settlement of the first matter in which Bartlett retained BLC to represent him, BLC pressured Bartlett into signing an agreement entitling BLC to 10 percent of the settlement proceeds. This was notwithstanding that cross-defendant Russell L. Berney had initially agreed to represent Bartlett free of charge. Bartlett has since paid BLC $3,392 in connection with this agreement.

With regard to the second matter, Bartlett retained BLC to serve as his attorney on a contingency fee agreement whereby BLC was entitled to 50% of the expected recovery. BLC brought a new firm into the matter, and the parties executed a new retainer agreement reflecting this fact and agreeing that BLC would receive no fee if a certain motion to dismiss was granted. That motion to dismiss was in fact granted and then later reversed by the Court of Appeal. The second matter settled in March 2017. BLC approached Bartlett on the busiest day of his work life, the filing deadline for tax returns, in order to pressure him into signing an agreement entitling BLC to 39 percent of the settlement funds.

For both matters, Bartlett seeks a declaration that BLC is not entitled to any of the settlement funds. The 5ACC also includes allegations that BLC and Berney breached their fiduciary duties during the course of these matters.

            Motion for Judgment on the Pleadings

On December 18, 2023, BLC moved for judgment on the pleadings (MJOP) as to the first and seventh causes of actions for (1) elder abuse and (7) breach of fiduciary duty in Barlett’s Fourth Amended Cross Complaint (“4ACC”).  That motion was heard on February 1, 2024.

The Court ruled as follows:

As to the merits of Cross-Defendants’ motion, the court finds it is appropriate to provide Cross-Complainant leave to amend to include his theory that the Qui Tam Agreement superseded the Tort Claims Contingency Fee Agreement. As Cross-Defendants indicate, Cross-Complainant argues this theory to support his claim for damages but nowhere is it pled in the FACC. Cross- Defendants proceed to argue against this theory, but the court finds it futile to address a theory or allegations that are not even pled in the cross-complaint.

[T]he court notes Cross-Defendants’ argument that this is not a summary judgment motion because the interpretation and legal effect of agreements are matters of law for the court. While this is generally true, the court notes that in contract cases a claimant need only plead a “meaning to which the instrument is reasonably susceptible.” (See Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 239 [“Where a complaint is based on a written contract which it sets out in full, a general demurrer to the complaint admits not only the contents of the instrument but also any pleaded meaning to which the instrument is reasonably susceptible.”].) Thus, as long as Cross-Complainant can plead an interpretation of the agreements to which they are reasonably susceptible, the court is inclined to find the pleadings sufficient. It is inappropriate for Cross-Defendants to turn any motion or demurrer regarding the sufficiency of the pleadings into a contested evidentiary hearing, which the instant motion borders on. (See Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4^th 343, 365 [“The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. [Citation.] ...” (Internal quotations omitted.)].)

The court therefore GRANTS Cross-Defendants’ motion for judgment on the pleadings as to the first and seventh causes of action of Cross-Complainant’s Fourth Amended Cross- Complaint, with 20 days leave to amend.

(2.1.24 MJOP Ruling, emphasis added.)

On February 9, 2024, Barlett filed the underlying Fifth Amended Cross Complaint (“5ACC”) which is now the subject of this motion.

Motion to Dismiss

On March 10, 2024, Cross-Defendants moved to dismiss Bartlett’s 5ACC for failure to bring it to trial within the five-year deadline under CCP § 583.310. Cross-Defendants maintained that the parties stipulated to extend the five-year deadline to February 28, 2024. (See 3.10.24 Mot. Dismiss 5ACC, pgs. 5-6.) Accordingly, Cross-Defendants pointed out that by February 5, 2024, the Court determined that the action was not ready for trial following the granting of cross-defendants’ motion for judgment on the pleadings. (Id., at pg. 6.) Because trial did not commence by February 29, 2024, Cross-Defendants argued that Bartlett failed to bring his claims within the time allowed and stipulated. (Id., at pg. 8.) Thus, they asserted that dismissal was required under Section 583.360.

On March 13, 2024, BLC brought the instant demurrer as to Bartlett’s 5ACC on the grounds that it fails to state a cause of action as to causes of action (1); and (6) – (8) per California Code of Civil Procedure (“CCP”) section 430.10, subdivision e. (CCP § 4310.10(e).)  

On June 10, 2024, the Honorable Mel Red Recana denied Cross-Defendants’ Motion to Dismiss, considering that under the totality of the circumstances, it was impracticable for trial to be brought within the stipulated trial because Cross-Defendants had filed the MJOP. Thus, Judge Recana concluded the cross-action was not subject to dismissal under the five-year dismissal statute. 

Peremptory Writ

Although the court could not find any record of a Court of Appeal order directed to the superior court in this case, on September 20, 2024, the Honorable Mel Red Recana issued the following ruling:

In compliance with the Court of Appeal Order to vacate my Order of June 10, 2024 denying Berney Law Corporation and Russell L. Berney's Motion to dismiss and thereafter make a new and different order granting the motion OR SHOW CAUSE why a peremptory writ of mandate should not be issued, I noticed a Brown, Winfield & Canzoneri, Inc. hearing on Sept. 20, 2024 at 8:30 AM in Dept. 45 to give the parties notice and opportunity to be heard. Today, Sept. 20, 2024 the parties appeared via Court Connect.

Defendant Robert Bartlett asked that the peremptory writ be issued because

given the important issues involved, he would like to pursue his appellate

rights.

It is so ordered.

(9/20/24 Order, emphasis added.) 

            Accordingly, the court understands that the issue of the cross-complaint is currently on appeal pursuant to a petition for writ of mandamus.  

[Tentative] Ruling

Cross-Defendants’ Demurrer to the 5ACC  as to causes of action for (1) elder abuse; and (6)-(8) for breach of fiduciary duty is continued, or in the alternative, the proceedings are stayed in light of the Court’s September 20, 2024 Minute Order issued by the Honorable Mel Red Recana, indicating this Court will not take any action pending the findings of the peremptory writ challenging this Court’s ruling of the June 10, 2024 Motion to Dismiss which Judge Recana previously denied.

ANALYSIS

On March 13, 2024, BLC brought the instant demurrer as to Bartlett’s 5ACC on the grounds that it fails to state a cause of action as to causes of action (1); and (6) – (8) per California Code of Civil Procedure (“CCP”) section 430.10, subdivision e. (CCP § 4310.10(e).) BLC concurrently brought a Request for Judicial Notice (“BLC RJN.”) On November 25, 2024, Barlett filed the Opposition, along with his Request for Judicial Notice (“Barlett’s RJN.”) On December 3, 2024, BLC filed the Reply.

Requests for Judicial Notice

Cross-Defendants request the Court take judicial notice of Exhibits (1) – (9).

Cross-Defendants’ Request for Judicial Notice is GRANTED pursuant to Evid. Code §452(d), (h).

Cross-Complainant requests the Court take judicial notice of Exhibits (A) – (E). Cross-Complainant’s Request for Judicial Notice is GRANTED pursuant to Evid. Code §452(d), (h).

Continue Demurrer or Stay Proceedings

Cross-Defendants on reply argue that the instant motion should be stayed in light of subsequent orders and proceedings before the court of Appeal. Given the denial of the June 10, 2024 Motion for Dismissal is now subject to further determination per peremptory writ, the Court declines to further adjudicate the merits of the instant demurrer in the interim. At present, it remains unclear whether such 5ACC remains subject to demurrer or is subject to dismissal per the Court of Appeal’s determination.

Moving Party to give notice.