Case Number: BC668748 Hearing Date: August 09, 2018 Dept: 47

Richard Quintilone II, an individual and dba Quintilone & Associates v. Jerid R. Maybaum, et al.

(1) DEMURRER TO SECOND AMENDED COMPLAINT;

(2) MOTION TO STRIKE RE: SECOND AMENDED COMPLAINT

MOVING PARTY: (1) & (2) Defendants Jerid R. Maybaum and Jacks & Maybaum LLP

RESPONDING PARTY(S): (1) & (2) Plaintiffs Richard Quintilone and Quintilone & Associates

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendants steered litigation/arbitration against attorney Plaintiff by his clients toward emotional distress damages, which were not covered by the subject malpractice liability insurance policy issued by Defendant insurer.

Defendants Jerid R. Maybaum and Jacks & Maybaum LLP demurrer to the second amended complaint and move to strike portions thereof.

TENTATIVE RULING:

Defendants Jerid R. Maybaum and Jacks & Maybaum LLP’s demurrer to the second amended complaint is SUSTAINED without leave to amend as to the first and second causes of action, unless Plaintiff can demonstrate a reasonable possibility of successful amendment.

The motion to strike Page 12, line 10 (attorney’s fees), Page 13, line 6 (attorney’s fees) and Page 13, ¶¶ 51 and 52 (punitive damages) is MOOT by virtue of the ruling on the demurrer. The motion to strike the Prayer Page 18, Prayer D (damages as to Defendant Maybaum) and Prayer, Page 18, Prayer E (attorneys’ fees) is GRANTED without leave to amend.

DISCUSSION:

Demurrer

Meet and Confer

The Declaration of Shawn S. Shaffie reflects that the meet and confer requirement set forth in CCP § 430.41 was satisfied.

Request For Judicial Notice

Defendant requests that the Court take judicial notice of: (1) September 12, 2016 Final Award in the arbitration matter entitled Roland, et al. v. Callahan & Blaine, et al., Judicate West Case No. A175720 (hereinafter, “the Arbitration”); (2) July 18, 2016 Interim Award in the Arbitration; (3) July 28 2016 Motion re: Offset in the Arbitration; (4) September 12, 2016 Ruling on Motion Re Offset in Arbitration; (5) September 26, 2016 Notice of Petition to Correct Arbitration Award in Roldan v. Callahan & Blaine, Orange County Superior Court, Case No. 30-2009-00303966; (6) December 1, 2016 Notice of Ruling re: Petition To Correct Arbitration Award in Orange County Superior Court case; (7) April 13, 2016 Defendants’ Closing Argument in the Arbitration; (8) November 4, 2016 Defendants’ Notice of Petition To Vacate Arbitration Award in Orange County Superior Court case; (9) Court of Appeal, Fourth Appellate District, opinion in Roldan v. Quintilone & Associates.

Requests Nos. 1 and 2 are GRANTED. The Court may take judicial notice of an arbitration award. Greenspan v. LADT LLC (2010) 191 Cal.App.4th 486, 525. Plaintiff’s objections are OVERRULED.

Requests Nos. 3, 4 and 7 are DENIED. Plaintiff’s objections are SUSTAINED. It would appear that judicial notice may not be taken of records submitted in arbitration proceedings because such records are not court records:

In an attempt to overcome this procedural bar to consideration of the res judicata defense on a demurrer, the State Bar asks this court to take judicial notice of the entire record of the arbitration proceeding. It concedes that the record is not a court record, but argues that judicial notice may be taken of the arbitration record as a quasi-judicial proceeding under Evidence Code section 452, subdivisions (d) and (h). Subdivision (d) permits the court to take judicial notice of the record of a court, however, and the State Bar offers no authority for expanding the statutory authorization to include the records of arbitration proceedings that are not conducted as part of a judicial action. Subdivision (h) authorizes judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.”

Brosterhous v. State Bar (1995) 12 Cal.4th 315, 324-25.

Requests Nos. 5, 6, 8 and 9 are GRANTED per Evid. Code § 452(d)(court records). Plaintiff’s objections are OVERRULED.

Page Limit

For motions that are not for summary judgment or summary adjudication, CRC Rule 3.1113 sets forth a 15-page limit on points and authorities in support of or in opposition to motions, and a 10-page limit on reply memoranda, unless the party applies for an application to file a longer memorandum, which did not occur here. CRC Rule 3.1113(d) & (e). A memorandum filed in excess of the page limits “must be filed and considered in the same manner as a late-filed paper.” CRC Rule 3.1113(g). The Court has discretion to disregard a late-filed brief. CRC Rule 3.1300(d). Accordingly, while the Court could completely disregard the entirety of the opposition, instead, the Court will only read the first 15 pages of the 20-page moving memorandum of points and authorities and of the 19-page Opposition.

Discussion

As an initial matter, the Court takes issue somewhat with Plaintiff analogizing Maybaum’s alleged malpractice to Mark Sanchez’s “butt fumble” while playing for the New York Jets. The unintentional butt fumble was arguably one of the more interesting moments in recent football history (and led to a New England touchdown off the fumble recovery). Maybaum’s alleged malpractice lacks these hallmarks of potential tragic or comedic history. Plaintiff’s further attempt to analogize Maybaum’s “two man operation” defense to football might have better been served by reference to the Indianapolis Colts’ punt “attempt” against the New England Patriots on October 18, 2015, wherein, by design, “[a]fter lining up in punt formation, the Colts rolled nine players — including their entire offensive line — to the far right side of the field, leaving wideout Griff Whalen to kneel over the ball like a center, with safety Colt Anderson stationed behind him for the snap.”[1] A predictable disastrous result for the Colts ensued following said snap.[2]

1. First Cause of Action (Legal Malpractice).

The Court considers the Final Arbitration Award, of which the Court takes judicial notice pursuant to Defendants’ request. Def’s RJN, Exh. 1. The reasoning set forth in the Arbitrator’s Decision will prevail, to the extent it contradicts the allegations in the Complaint:

“ ‘Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.’ ” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [110 Cal. Rptr. 2d 877].) “In determining the sufficiency of a complaint against demurrer a court will consider matters that may be judicially noticed.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374 [228 Cal. Rptr. 878].) A court may take judicial notice of something that cannot reasonably be controverted, even if it negates an express allegation of the pleading. (Columbia Casualty Co. v. Northwestern Nat. Ins. Co. (1991) 231 Cal.App.3d 457, 468–469 [282 Cal. Rptr. 389].) This includes recorded deeds. (Maryland Casualty Co. v. Reeder (1990) 221 Cal.App.3d 961, 977 [270 Cal. Rptr. 719].)

Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.

Plaintiff alleges that as a result of Defendants’ legal malpractice, he suffered damages in the amount of $135,000 (2AC, ¶¶ 26, 46), which is the amount of the arbitration award in the Roldan arbitration. Def’s RJN, Exh. 1 (“Final Award”). Here, the arbitrator found that the Roldan Plaintiffs were not entitled to prevail on the negligence cause of action against Quintilone because there was no proof in the underlying suit that the Roldan Plaintiffs’ medical conditions were caused by the alleged toxic mold, if any, present in their apartments. Final Award, Page 8:17 – 9:2. As to the breach of fiduciary duty cause of action against Quintilone, the arbitrator found that “Quintilone’s breach of fiduciary duty caused the plaintiffs economic and noneconomic damage.” Final Award, Page 9:3-4 (bold emphasis added). The arbitrator found that “Quintilone breached his fiduciary duty causing serious mental distress and upset, and financial loss.” Final Award, Page 10:7-8 (bold emphasis added). The arbitrator then recited the conduct by which Quintilone breached his fiduciary duty, so as to give the Roldan Plaintiffs the right to recover damages for emotional distress. Final Award, Page 10:9-17. However, the arbitrator awarded noneconomic damages, i.e., emotional distress damages, in the following amount: $10,000.00 to Francisco Roldan; $50,000 to Joan Roldan; $50,000.00 to Gail Chudacoff; and $25,000.00 to Jennie Mendoza. Thus, even though the arbitrator indicated in his decision that the Roldan Plaintiffs also suffered economic damage/financial loss, he only awarded damages for noneconomic damages/emotional distress.

As with the 1AC, Plaintiff alleges vaguely in the 2AC that Defendant Maybaum, at American Guarantee/Zurich’s direction, directed the arbitration into a more favorable result for American Guarantee/Zurich to Plaintiff’s detriment, thereby resulting in a less favorable conclusion for Plaintiff. 2AC, ¶ 27. Although Plaintiff lists alleged acts of malpractice at ¶ 28 and concludes that, but for Defendants’ malpractice, it is more likely than not that Plaintiff would have obtained a more favorable result, Plaintiff still fails to articulate how (logically) damages from the arbitration award would have been limited to economic damages covered by the subject policy, or no noneconomic damages would have been awarded. 2AC, ¶ 44.

Plaintiff alleges in vague, conclusory language that “[t]he underlying reason why the arbitrator made the award in this manner necessarily stems from the numerous errors made by Maybaum in his representation of Quintilone.” 2AC ¶ 27. “Although a court must on demurrer accept as true properly pleaded facts, a demurrer does not admit contentions or conclusions of law or fact.” Freeman v. San Diego Assn. of Realtors (1999) 77 Cal.App.4th 171, 185.

Plaintiff has added an allegation that but for Defendant Maybaum’s alleged legal malpractice, Plaintiff would have obtained “a full defense verdict against the Roldan Plaintiffs.” 2AC, ¶ 44. However, Plaintiff does not articulate how a complete victory would have been achieved absent Maybaum’s legal malpractice.

In this regard, Plaintiff has still failed to allege facts as to why the arbitrator’s reasoning in rendering the award was caused by Defendants’ arguments, or lack thereof, after the arbitrator found that the Roldan Plaintiffs suffered both economic and noneconomic damages. In other words, how did Defendants’ arguments, or lack thereof, alter the arbitrator’s reasoning?

How did the alleged legal malpractice of the demurring Maybaum Defendants cause the arbitrator to award the foregoing noneconomic damages—not covered by the subject policy[3]—instead of allocating at least some of the award to economic damages—covered by the subject policy, which would have reduced Quintilone’s liability.

To state a cause of action for legal malpractice, a plaintiff must plead “(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.” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199 [108 Cal. Rptr. 2d 471, 25 P.3d 670].) To show damages proximately caused by the breach, the plaintiff must allege facts establishing that, “but for the alleged malpractice, it is more likely than not the plaintiff would have obtained a more favorable result.” (Viner v. Sweet (2003) 30 Cal.4th 1232, 1244 [135 Cal. Rptr. 2d 629, 70 P.3d 1046]; see Judicial Council of Cal. Civ. Jury Instns. (2006) CACI No. 601 [plaintiff must prove he or she “would have obtained a better result if [defendant] had acted as a reasonably careful attorney”].)

Charnay v. Cobert (2006) 145 Cal.App.4th 170, 179 (bold emphasis and underlining added).

In a typical professional negligence case against a litigation attorney, a determination of the merits of the underlying lawsuit must be made in order to adjudicate the elements of causation and damages. (Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 357 [89 Cal. Rptr. 3d 710] (Blanks).) The plaintiff is required to prove that but for the defendant’s misconduct, “ ‘the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred.’ ” (Ibid., quoting Viner v. Sweet (2003) 30 Cal.4th 1232, 1241 [135 Cal. Rptr. 2d 629, 70 P.3d 1046].) “This method of presenting a legal malpractice lawsuit is commonly called a trial within a trial. It may be complicated, but it avoids speculative and conjectural claims.” (Blanks, at p. 357.)

“The trial-within-a-trial method does not ‘recreate what a particular judge or fact finder would have done. Rather, the jury’s task is to determine what a reasonable judge or fact finder would have done … .’ [Citation.] Even though ‘should’ and ‘would’ are used interchangeably by the courts, the standard remains an objective one. The trier of facts determines what should have been, not what the result would have been, or could have been, or might have been, had the matter been before a particular judge or jury.” (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 840 [60 Cal. Rptr. 2d 780]; accord, Blanks, supra, 171 Cal.App.4th at p. 357).

Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 934.

Breach of duty causing only speculative harm is insufficient to create such a cause of action. (Budd v. Nixen [(1971)] 6 Cal. 3d [195,] 200 [98 Cal. Rptr. 849, 491 P.2d 433].) ‘Damages may not be based upon sheer speculation or surmise, and the mere possibility or even probability that damage will result from wrongful conduct does not render it actionable. [Citation.]’ (In re Easterbrook (1988) 200 Cal. App. 3d 1541, 1544 [244 Cal. Rptr. 652] [disapproved on other grounds in People v. Romero (1994) 8 Cal. 4th 728, 744, fn. 10 [35 Cal. Rptr. 2d 270, 883 P.2d 388]].) Neither appellant’s complaint nor his documentation opposing respondents’ motion for summary judgment state[s] any facts demonstrating actual damage resulting from respondents’ delay in handling the underlying action.” (Thompson v. Halvonik, supra, 36 Cal. App. 4th at pp. 661-662; see also Campbell v. Magana (1960) 184 Cal. App. 2d 751, 758 [8 Cal. Rptr. 32]; Williams v. Wraxall (1995) 33 Cal. App. 4th 120, 130-131 [39 Cal. Rptr. 2d 658].)

Marshak v. Ballesteros (1999) 72 Cal.App.4th 1514, 1518-19.

The Court is not, as Plaintiff suggests, treating this as a motion for summary judgment. Rather, if Plaintiff cannot sufficiently articulate causation, he cannot survive demurrer.

[W]here the pleaded facts of negligence and injury do not naturally give rise to an inference of causation the plaintiff must plead specific facts affording an inference the one caused the others.’ ” (Citation omitted.)

Animal Legal Defense Fund v. Mendes (2008) 160 Cal.App.4th 136, 146.

As such, the demurrer to the first cause of action is 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.

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

“For causation to be established, there must be a nexus between the compensatory damages assessed and the breaches of fiduciary duty. (Stanley v. Richmond, supra, 35 Cal. App. 4th at p. 1086; DiPalma v. Seldman (1994) 27 Cal. App. 4th 1499, 1506 [33 Cal. Rptr. 2d 219]; Jackson v. Johnson (1992) 5 Cal. App. 4th 1350, 1355 [7 Cal. Rptr. 2d 482].)” Mosier v. S. Cal. Physicians Ins. Exch. (1998) 63 Cal.App.4th 1022, 1048-49. “The trial-within-a-trial method has been expanded to breach of fiduciary duty cases.” Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 934.

Plaintiff alleges that as a result of Defendants’ breach of fiduciary duty, he suffered damages in the amount of $135,000 (2AC, ¶ 50), which is the amount of the arbitration award in the Roldan arbitration. For the reasons discussed above re: the first cause of action,

Plaintiff has failed to allege facts explaining how the alleged breach of fiduciary duty of the demurring Maybaum Defendants caused the arbitrator to award the foregoing noneconomic damages—not covered by the subject policy—instead of allocating at least some of the award to economic damages—covered by the subject policy, which would have reduced Quintilone’s liability.

As such, the demurrer to the second cause of action is SUSTAINED without leave to amend, unless Plaintiff demonstrates a reasonable possibility of successful amendment.

Motion To Strike

Meet and Confer

The Declaration of Shawn S. Shaffie reflects that the meet and confer requirement set forth in CCP § 435.5 was satisfied.

Analysis

The motion to strike Page 12, line 10 (attorney’s fees), Page 13, line 6 (attorney’s fees) and Page 13, ¶¶ 51 and 52 (punitive damages) is MOOT by virtue of the ruling on the demurrer.

The motion to strike the Prayer Page 18, Prayer D (damages as to Defendant Maybaum) and Prayer, Page 18, Prayer E (attorneys’ fees) is GRANTED without leave to amend.

Conclusion

By virtue of the ruling on the demurrer, there are currently no viable causes of action pending against moving Defendants, unless leave to amend is allowed at the hearing.

Moving Party to give notice, unless waived.

IT IS SO ORDERED.

Dated: August 9, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court