(4) NOTICE OF JOINDER IN MOTION TO STRIKE;

(5) MOTION FOR ORDER TO SHOW CAUSE RE CONTEMPT

MOVING PARTY: (1) & (2) Defendant Dennis P. Riley and Mesisca, Riley & Kreitenberg LLP;

(3) Defendant David S. Hamilton;

(4) Defendants Roger B. Frederickson and Frederickson Law;

(5) Defendant Davis S. Hamilton

RESPONDING PARTY(S): (1) – (3) & (5) Plaintiff Madeline Moore, individually and as Successor Trustee of the Moore Family Trust dated June 1, 1983

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that her mother’s attorney and CPA advised Plaintiff’s mother to engage in unnecessary transfers of Trust assets that had significant tax consequences for the Trust which could have been avoided, but which generated fees for the attorney and CPA. Plaintiff then retained the professional services of the Defendant attorneys herein, who allegedly committed legal malpractice in prosecuting claims against the attorney and CPA in the handling of the case, which caused her to settle for less than she was entitled to recover.

Defendants Dennis P. Riley and Mesisca, Riley & Kreitenberg LLP demur to the first amended complaint and move to strike portions thereof.

Defendant David S. Hamilton moves to strike portions of the first amended complaint, and also moves for issuance of an order to show cause re: contempt.

Defendants Roger B. Frederickson and Frederickson Law filed a notice of joinder in Defendant Hamilton’s motion to strike.

TENTATIVE RULING:

Defendant Dennis P. Riley and Mesisca, Riley & Kreitenberg LLP’s demurrer to the first amended complaint is OVERRULED as to the second cause of action and SUSTAINED without leave to amend as to the third, fourth, seventh and eighth causes of action unless Plaintiff can demonstrate a reasonable possibility of successful amendment at the hearing, via sufficient offer of proof.

Defendant Dennis P. Riley and Mesisca, Riley & Kreitenberg LLP’s motion to shrike ¶ 32, Page 8:19-22 re: punitive damages is GRANTED without leave to amend, unless Plaintiff can demonstrate a reasonable possibility of successful amendment. The motion to strike Prayer for Relief, Item No. 2, Page 12:17-19 re: treble punitive damages pursuant to Civil Code § 3345 is GRANTED without leave to amend. Given the ruling on the demurrer, the motion to strike is MOOT as to ¶¶ 33-36, page 8:23-9:11; ¶ 36, Page 9:8-11; ¶¶ 37-39, and Page 9:12-25.

Defendant David S. Hamilton’s motion to strike Prayer for Relief, Item No. 2, Page 12:17-19 re: treble punitive damages pursuant to Civil Code § 3345 is GRANTED without leave to amend.

Defendants Roger B. Frederickson and Frederickson Law’s notice of joinder in Defendant David S. Hamilton’s motion to strike is DENIED. This is not a proper motion, as it lacks points and authorities.

Defendant David S. Hamilton’s motion for an order to show cause re: contempt is DENIED without prejudice.

DISCUSSION:

Defendant Dennis P. Riley and Mesisca, Riley & Kreitenberg LLP’ Demurrer

Meet and Confer

The Declaration of Jonathan M. Starre reflects that the meet and confer requirement set forth in CCP § 430.41 was satisfied.

Analysis

1. Second Cause of Action (Breach of Fiduciary Duty).

To establish a cause of action for breach of fiduciary duty, a plaintiff must demonstrate the existence of a fiduciary relationship, breach of that duty and damages. (Benasra v. Mitchell Silberberg & Knupp LLP (2004) 123 Cal.App.4th 1179, 1183 [20 Cal. Rptr. 3d 621]; Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1101 [3 Cal. Rptr. 2d 236].) Charnay alleges Cobert breached his fiduciary duty by billing for tasks not performed and by billing at an inflated rate. Although, as the trial court found, the retainer agreement on its face may not have been “substantively unconscionable,” by alleging Cobert and his firm improperly inflated the billings sent to Charnay by including tasks not performed and incorrectly using higher hourly rates than justified, Charnay has adequately pleaded a claim for breach of fiduciary duty. (See Bird, Marella, Boxer & Wolpert v. Superior Court (2003) 106 Cal.App.4th 419, 431 [130 Cal. Rptr. 2d 782] [client who alleged former defense counsel fraudulently inflated his charges stated breach of fiduciary duty claim; all members of the bar owe clients “fiduciary duty to charge only fair, reasonable and conscionable fees”].)

Charnay v. Cobert (2006) 145 Cal.App.4th 170, 182 (bold emphasis added).

¶¶ 29, 30 of the 1AC allege that all attorneys breached their duty not to bill Plaintiff for unnecessary work and not to charge Plaintiff unreasonable and unconscionable fees. This is sufficient to allege a breach of fiduciary duty. Defendants may conduct discovery to ascertain the details of the alleged overbilling.

The demurrer to the second cause of action is OVERRULED.

2. Third Cause of Action (Fraud (Including Concealment).

“To establish a claim for deceit based on intentional misrepresentation, the plaintiff must prove seven essential elements: (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff’s reliance on the defendant’s representation was a substantial factor in causing that harm to the plaintiff. (Citations omitted.)” Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498 (italics omitted).

“The mere failure to carry out a promise is not a tort, and it is therefore essential, in pleading fraud consisting of a false promise, to allege the elements of fraud.” Maynes v. Angeles Mesa Land Co. (1938) 10 Cal.2d 587, 589.

Fraud must be pleaded with specificity rather than with “ ‘general and conclusory allegations.’ ” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184 [132 Cal. Rptr. 2d 490, 65 P.3d 1255].) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (Lazar v. Superior Court, supra, 12 Cal.4th at p. 645.)

We enforce the specificity requirement in consideration of its two purposes. The first purpose is to give notice to the defendant with sufficiently definite charges that the defendant can meet them. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216 [197 Cal. Rptr. 783, 673 P.2d 660].) The second is to permit a court to weed out meritless fraud claims on the basis of the pleadings; thus, “the pleading should be sufficient ‘ “to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.” ’ ” (Id. at pp. 216–217.)

West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.

[T]he elements of a cause of action for fraud based on concealment are: “ ‘(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage. [Citation.]’ [Citation.]” (Citation omitted.)

Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal. App. 4th 830, 850.

Moreover: “[c]oncealment is a species of fraud, and ‘[f]raud must be pleaded with specificity.’ (Citation omitted.) To plead tort liability based on false or incomplete statements, the pleader must set forth at least the substance of those statements.” Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 878.

Here, as to demurring Defendants, Plaintiff only alleges that:

In or about September 2013, plaintiff had several communications with defendant Dennis P. Riley concerning retaining RILEY to prosecute actions against WATERWORTH and SPALING for their failure to take action against WEITKAMP and LUCOVE. In those communications, RIELY, through defendant Dennis P. Riley, represented to plaintiff on several occasions that RIELY had the competence to represent plaintiff in those actions and to devote the time and attention necessary to represent plaintiff in those actions.

1AC, ¶ 11; see also ¶ 34.

Plaintiff has not pled exactly what Dennis Riley told Plaintiff, when and in what manner (orally or in writing), and why such representations were known to be false when made, or what material fact was concealed from Plaintiff in light of the representations made, especially in that they pertained to future events..

The demurrer to the third cause of action in SUSTAINED without leave to amend. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. Goodman v. Kennedy (1976) 18 Cal.3d 335, 348. In this instance, however, Plaintiff must demonstrate this possibility at the hearing, otherwise no leave to amend will be given.

3. Fourth Cause of Action (Negligent Misrepresentation).

“The elements of negligent misrepresentation are ‘(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.’ (Citation omitted.)” National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal. App.4th 35, 50.

The same pleading specificity requirement applicable to fraud applies to pleading negligent misrepresentation. Cadlo v. Owens-Illinois, Inc., (2004) 125 Cal.App.4th 513, 519.

Plaintiff has not pled exactly what Dennis Riley told Plaintiff, when and in what manner (orally or in writing), and why such representations were made without a reasonable basis for believing them to be true, especially in that they pertained to future events.

The demurrer to the fourth cause of action in SUSTAINED without leave to amend, unless Plaintiff can demonstrate a reasonable possibility of successful amendment.

4. Seventh Cause of Action (Breach of Contract).

This cause of action is not based upon billing in excess of amounts agreed to in the retainer agreement—as in Charney, supra, 145 Cal.app.4th at 186 (relied upon by Plaintiff). Rather this cause of action is based upon an “implied[ ] agree[ment] to provide . . . legal services competently and in accordance with the Rules of Professional conduct and the standard of care for attorneys in California”: 1AC, ¶ 42. All attorneys allegedly breached the agreement by failing to provide legal services reasonably required to represent Plaintiff in the underlying litigation and in accordance with the rules and stand for attorneys in California. ¶ 43.

This cause of action is duplicative of the professional negligence cause of action. The fact that Plaintiff seeks repayment of legal fees and costs paid does not transform this into a breach of contract, where the obligation breached was the duty of professional care.

A demurrer should be sustained to a cause of action which merely duplicates another cause of action, and “adds nothing to the complaint by way of fact or theory.” Award Metals v. Superior Court (1991) 228 Cal.App.3d 1128, 1135.

The demurrer to the seventh cause of action is SUSTAINED without leave to amend unless Plaintiff can demonstrate a reasonable possibility of successful amendment.

5. Eighth Cause of Action (Financial Elder Abuse).

Financial abuse of an elder adult “occurs when a person or entity does any of the following: [¶] (1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. [¶] (2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.” (Welf. & Inst. Code, § 15610.30, subd. (a).)

The Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) was enacted to provide for the “private, civil enforcement of laws against elder abuse and neglect” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82 Cal. Rptr. 2d 610, 971 P.2d 986]). The statutory provisions are not limited to mentally incompetent or physically impaired elders, or persons of limited financial means. (Welf. & Inst. Code, §§ 15600, 15610.27, 15610.30.) Under the statute, it is not necessary that the taker maintain an intent to defraud if it can be shown that the person took the property for a wrongful use and “knew or should have known that [his or her] conduct is likely to be harmful to the elder … .” (Id., § 15610.30, subd. (b).) n9

FOOTNOTES

n9 Subdivision (b) of section 15610.30 of the Welfare and Institutions Code provides: “A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secrets, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.” (Italics added; see also CACI No. 3100.)

Bonfigli v. Strachan (2011) 192 Cal.App.4th 1302, 1315.

“[S]tatutory causes of action must be pleaded with particularity.” Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.

Plaintiff did not plead the elements of a Financial Elder Abuse cause of action with particularity.

The demurrer to the eighth cause of action is SUSTAINED without leave to amend, unless Plaintiff can demonstrate a reasonable possibility of successful amendment.

Defendant Dennis P. Riley and Mesisca, Riley & Kreitenberg LLP’s Motion To Strike

Meet and Confer

The Declaration of Jonathan M. Starre reflects that the meet and confer requirement set forth in CCP § 435.5 was satisfied.

Analysis

The motion to strike ¶ 32, Page 8:19-22 re: punitive damages is GRANTED without leave to amend, unless Plaintiff can demonstrate a reasonable possibility of successful amendment. Although the breach of fiduciary duty claim survived demurrer on the theory of excessive billing, there were no facts pled to constitute malice, oppression or fraud on the part of moving Defendants.

The motion to strike Prayer for Relief, Item No. 2, Page 12:17-19 re: treble punitive damages pursuant to Civil Code § 3345 is GRANTED without leave to amend. Civil Code § 3345 only applies where actions are brought to impose a fine, civil penalty or other penalty. None of Plaintiff’s causes of action fall into this category.

Given the ruling on the demurrer, the motion to strike is MOOT as to ¶¶ 33-36, page 8:23-9:11; ¶ 36, Page 9:8-11; ¶¶ 37-39, and Page 9:12-25.

Defendant David S. Hamilton’s Motion To Strike

Meet and Confer

The Declaration of Briana E. McCarthy reflects that the meet and confer requirement set forth in CCP § 435.5 was satisfied.

Analysis

The motion to strike Prayer for Relief, Item No. 2, Page 12:17-19 re: treble punitive damages pursuant to Civil Code § 3345 is GRANTED without leave to amend. Civil Code § 3345 only applies where actions are brought to impose a fine, civil penalty or other penalty. None of Plaintiff’s causes of action fall into this category.

The Court of Appeal denied Plaintiff’s petition for writ of mandate. Plaintiff’s reliance upon her arguments in the petition for writ of mandate to persuade this Court that its prior order was void is equally not persuasive before this Court.

Defendants Roger B. Frederickson and Frederickson Law’s Notice of Joinder In Defendant David S. Hamilton’s Motion To Strike

Defendants Roger B. Frederickson and Frederickson Law’s notice of joinder in Defendant David S. Hamilton’s motion to strike is DENIED.

A “Notice of Joinder” is not a proper motion unless (1) relief is sought on behalf of the joining party, (2) it is timely filed, (3) contains points and authorities, and (4) specifically states the grounds for the demurrer separately (see CRC Rule 3.1320(a) [“[e]ach ground of demurrer shall be in a separate paragraph and shall state whether it applies to the entire complaint….”]; See Grieves v. Superior Court (1982) 157 Cal.App.3d 159, 163 [“the trial court treated [defendant’s] notice of joinder as a motion”].) Short of meeting all of these requirements, the Notice of Joinder is not a proper motion.

Defendant Davis S. Hamilton’s Motion For Issuance of Order to Show Cause re Contempt

The Court GRANTS Defendant’s request for judicial notice of court records pertaining to this action and the petition of writ of mandate before the Court of Appeal. Evid. Code § 452(d)(court records).

Defendant David S. Hamilton moves pursuant to CCP § 1209(a)(5) for an order to show cause why Attorney Leonard Steiner and Madeline Moore should not be held in contempt of the Court’s December 19, 2017 Order in that Plaintiff realleged the Prayer seeking trebling of punitive damages under Civil Code § 3345 despite the Court striking such relief without leave to amend. In this regard, Defendant seeks sanctions against Plaintiff and her counsel, jointly and severally, per CCP § 1218[1] in the amount of $7,670.00.

(a) The following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court:

. . .

(5) Disobedience of any lawful judgment, order, or process of the court.

CCP § 1209(a)(5).

Although Plaintiff and her counsel disobeyed this Court’s prior ruling granting the motion to strike treble punitive damages pursuant to Civil Code § 3345 without leave to amend, the Court does not find that realleging this prayer for relief warrants the imposition of sanction, let alone the staggering amount of over $7,000. At this time, the appropriate remedy is to once against strike the same prayer for relief without leave to amend.

However, Plaintiff’s counsel of record, Leonard Steiner and Steiner & Libo, are specifically warned that if they try to reassert the prayer for treble punitive damages pursuant to Civil Code § 3345, without obtaining the appropriate mandate from the appellate courts, the Court will be more amenable to setting an order to show cause re: contempt.[2]

Accordingly, the motion for an order to show cause re: contempt is DENIED without prejudice.

Defendant David S. Hamilton to give notice.

IT IS SO ORDERED.

Dated: April 5, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

[1]

(a) Upon the answer and evidence taken, the court or judge shall determine whether the person proceeded against is guilty of the contempt charged, and if it be adjudged that he or she is guilty of the contempt, a fine may be imposed on him or her not exceeding one thousand dollars ($1,000), payable to the court, or he or she may be imprisoned not exceeding five days, or both. In addition, a person who is subject to a court order as a party to the action, or any agent of this person, who is adjudged guilty of contempt for violating that court order may be ordered to pay to the party initiating the contempt proceeding the reasonable attorney’s fees and costs incurred by this party in connection with the contempt proceeding.

CCP § 1218(a).

[2]

The Court sees no evidence whatsoever that the Plaintiff herself has played an affirmative role in ignoring this Court’s prior order in this regard.