Judge: Walter P. Schwarm, Case: 30-2022-01244757, Date: 2022-09-06 Tentative Ruling
Motion No. 1:
Defendant’s (Law Offices of Tony J. Park, Inc. and Tony J. Park) Demurrer to Complaint (Demurrer), filed on 4-19-22 under ROA No. 28, is OVERRULED. The Notice for this Demurrer (Notice) was filed on 4-19-22 under ROA No. 17.
The court GRANTS Defendant’s Request for Judicial Notice, filed on 4-19-22 under ROA No. 32, pursuant to Evidence Code section 452, subdivision (d).
“A demurrer tests the pleading alone, and not the evidence or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provides, “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. [Citations.]” C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 872 (C.A.), provides, “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged. [Citation.]”
The Demurrer challenges the first and second causes of action in Plaintiff’s (Anita McQuigg) Complaint, filed on 2-9-22 under ROA No. 2, pursuant to Code of Civil Procedure section 430.10, subdivision (e). (Notice; 1:27-2:9.)
First Cause of Action—Legal Malpractice:
The Demurrer states, “. . . Plaintiff’s Complaint fails to allege sufficient factual support that but for Defendant’s withdrawal from representation of her, she would have received a more favorable outcome.” Knapp v. Ginsberg (2021) 67 Cal.App.5th 504, 525-526 (Knapp), states, “The elements of a cause of action for legal malpractice are ‘(1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney's negligence.’ [Citation.] A plaintiff must prove all four elements to prevail; failure to prove even one is fatal to recovery. [Citation.] [¶] ‘ “In the legal malpractice context, the elements of causation and damage are particularly closely linked.” ’ [Citation.] ‘The plaintiff must prove, by a preponderance of the evidence, that but for the attorney's negligent acts or omissions, he [or she] would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred.’ [Citations.]”
Yanez v. Plummer (2013) 221 Cal.App.4th 180, 186-187 (Yanez), “In a legal malpractice action where, as here, there is a combination of causes, none of which is sufficient without the others to have caused the harm, the test for causation is the ‘but for’ test: but for the defendant's conduct, the harm would not have occurred. [Citations.] [¶] Because the ‘substantial factor’ test of causation subsumes the ‘but for’ test, the ‘but for’ test has been phrased in terms of ‘substantial factor,’ as follows, in the context, as here, of a combination of causes dependent on one another: A defendant's negligent conduct may combine with another factor to cause harm; if a defendant's negligence was a substantial factor in causing the plaintiff's harm, then the defendant is responsible for the harm; a defendant cannot avoid responsibility just because some other person, condition, or event was also a substantial factor in causing the plaintiff's harm; but conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct. [Citations.] [¶] In a legal malpractice action, causation is an issue of fact for the jury to decide except in those cases where reasonable minds cannot differ; in those cases, the trial court may decide the issue itself as a matter of law. [Citation.]”
The Complaint alleges that Defendants had an attorney-client relationship with Plaintiff “. . . pertaining to the underlying Board matter and administrative proceeding.” (Complaint, ¶ 26.) “This attorney-client relationship began no later than December 12, 2019, when Park sent a letter or representation on behalf of McQuigg to the Board . . . and continued for more than a year until Defendants unexpectedly terminated their representation of McQuigg on December 23, 2020.” (Complaint, ¶ 26.) Paragraph 27 of the Complaint pleads that Defendants’ “. . . had a legal duty to use such skill, prudence, and diligence as other members of he legal profession commonly possess and exercise.” Paragraph 28 of the Complaint pleads that Defendants breached that duty “. . . knowingly and intentionally assum[ing] a position adverse to McQuigg vis a vis the conflict with Phantastic without obtaining McQuigg’s written informed consent . . . .” (See also, Complaint at ¶¶ 10, 11, and 13-24.) Under Yanez, Paragraphs 29 and 30 of the Complaint adequately allege causation and damages.
Therefore, the Complaint adequately alleges the first cause of action for Legal Malpractice, and the court OVERRULES the Demurrer as to the first cause of action.
Second Cause of Action—Breach of Fiduciary Duty:
The Demurrer asserts, “. . . Plaintiff has not alleged facts that rise to a separate claim for breach of fiduciary duty. . . These allegations are identical to the alleged breaches supporting the professional negligence causes of action. At best, these allegations constitute negligence, and otherwise arise from the same fats and seek the same relief as the claim for professional negligence.” (Demurrer; 6:13-23.)
Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1534-1535 (Slovensky), explains, “ ‘[A] breach of fiduciary duty is a species of tort distinct from a cause of action for professional negligence. [Citations.] The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach. [Citation.]’ [Citation.] [¶] ‘The attorney-client relationship is a fiduciary relation of the very highest character imposing on the attorney a duty to communicate to the client whatever information the attorney has or may acquire in relation to the subject matter of the transaction. [Citations.]’ [Citation.] [¶] ‘The scope of an attorney's duty may be determined as a matter of law based on the Rules of Professional Conduct which, “together with statutes and general principles relating to other fiduciary relationships, all help define the duty component of the fiduciary duty which an attorney owes to his [or her] client.” [Citations.] Whether an attorney has breached a fiduciary duty to his or her client is generally a question of fact. [Citation.]’ [Citation.]”
Paragraphs 10, 11, 13-24, and 32-44 adequately plead a cause of action for breach of fiduciary duty. Therefore, the court OVERRULES the Demurrer as to the second cause of action.
Based on the above, the court OVERRULES Defendant’s (Law Offices of Tony J. Park, Inc. and Tony J. Park) Demurrer to Complaint (Demurrer) filed on 4-19-22 under ROA No. 28. The court ORDERS Defendants to file an answer to the Complaint within 15-days from the date of service of the notice of the court’s ruling.
Plaintiff is to give notice.
Motion No. 2:
Defendant’s (Law Offices of Tony J. Park, Inc. and Tony J. Park) Motion to Strike Complaint (Motion), filed on 4-19-22 under ROA No. 34, is DENIED. The Notice for this Motion (Notice) was filed on 4-19-22 under ROA No. 22.
The court GRANTS Defendants’ Request for Judicial Notice, filed on 4-19-22 under ROA No. 30, pursuant to Evidence Code section 452, subdivision (d).
Code of Civil Procedure section 436, states, “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. [¶] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” Code of Civil Procedure section 435, subdivision (b)(1), states, “Any party, within the time allowed to respond to a pleading may serve and file, a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342, explains, “Preliminarily, we note a motion to strike is generally used to reach defects in a pleading which are not subject to demurrer. A motion to strike does not lie to attack a complaint for insufficiency of allegations to justify relief; that is a ground for general demurrer. [Citation.]”
The Notice requests the court to strike the following portions of Plaintiff’s (Anita McQuigg) Complaint filed on 2-9-22 under ROA No. 2: (1) “1. The Complaint's allegations regarding Defendants Obligations to obtain a Written Agreement Regarding Fees are Improper and Irrelevant, and therefore must be stricken.” (Notice; 1:26-28.); and (2) “2. Plaintiff's claim for punitive damages is does not allege facts that give rise to punitive damages and, therefore, it must be stricken.” (Notice; 2:1-2.)
Streit v. Covington & Crowe (2000) 82 Cal.App.4th 411, 444-445 (Streit), states, “Although the relationship usually arises from an express contract between the attorney and the client, it may also arise by implication. [Citation.] ‘ “Neither contractual formality nor compensation nor expectation of compensation is required.” ’ [Citations.] [¶] The relationship may arise without any direct dealings between the client and the attorney. For instance, by retaining a single attorney, a client establishes an attorney-client relationship with any attorney who is a partner of or is employed by the retained attorney. [Citations.] ‘The relationship also arises from a simple association for a particular case.’ [Citations.]” (Italics in Streit.)
The Motion does not cite any legal authority as to why the allegations regarding a lack of a written agreement are improper or irrelevant. Plaintiff’s Opposition to Defendant’s Motion to Strike (Opposition), filed on 8-23-22 under ROA No. 57, states, “As such, the allegations regarding Defendants’ failure to enter into a written attorney-client agreement with Plaintiff in accordance with Bus. & Prof. Code, § 6148, and failure to obtain Plaintiff’s informed written consent in accordance with Cal. Rules of Professional Conduct, rules 1.7 and 1.8.6, demonstrate that Defendants never disclosed to Plaintiff that since Phantastic was paying for their services, they prioritized Phantastic’s interest above hers and that they would abandon Plaintiff if her ‘primary defense . . . relie[d] on shifting liability to [Defendants’] already established Client, Phantastic Pharmacy.’ ” (Opposition, 5:12-19; Complaint.) Here, the allegations regarding a lack of a written agreement are not improper at this stage of the proceedings.
As to punitive damages, the Motion states, “Plaintiff has not alleged facts sufficient to give rise to punitive damages. Rather, Plaintiff’s causes of action sets forth various conclusory allegations concerning Defendant alleged conduct before concluding that the same entitle Plaintiff to an award of punitive damages.” (Motion; 5:25-28.) The Opposition responds, “. . . Defendants breached their duty of confidentiality to Plaintiff by facilitating Phantastic’s owner’s use of Plaintiff’s confidential information to Plaintiff’s detriment at the ALJ hearing.” (Opposition; 7:10-12.)
Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63, states, “ ‘In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.’ [Citation.] [¶] In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. [Citation.] These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ.Code, § 3294, subd. (a).) ‘ “Malice” ’ is defined in the statute as conduct ‘intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others.’ [Citations.] ‘ “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.’ [Citation.] ‘ “Fraud” ’ is ‘an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.’ [Citation.]”
Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1159 (Butte), states, “ ‘Despicable conduct’ is conduct that is ‘ “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by most ordinary decent people.” ’ [Citation.]”
Here, the Complaint contains sufficiently specific allegations to support the request for punitive damages. (For example, see Complaint at ¶¶ 16 and 22 of the Complaint.) These allegations are sufficient to support a finding of malice based on despicable conduct with a willful and conscious disregard for Plaintiff’s rights. Therefore, the court DENIES the Motion to strike Plaintiff’s claim for punitive damages.
Based on the above, the court DENIES Defendant’s (Law Offices of Tony J. Park, Inc. and Tony J. Park) Motion to Strike Complaint filed on 4-19-22 under ROA No. 34. The court ORDERS Defendants to file an answer to Plaintiff’s Complaint within 15-days from the date of service of the notice of the court’s ruling.
Plaintiff is to give notice.