Case Number: 19GDCV01041 Hearing Date: December 13, 2019 Dept: NCD

TENTATIVE RULING

Calendar: 7

Date: 12/13/19

Case No: 19 GDCV01041 Trial Date: None Set

Case Name: Leeds v. Clark

DEMURRER

MOTION TO STRIKE

[CCP §430.10 et. seq.]

Moving Party: Defendant Charles E. Clark

Responding Party: Plaintiff Mark R. Leeds

(No Opposition to Demurrer; Motion to Strike Opposed)

Meet and Confer? Ok

RELIEF REQUESTED:

Sustain demurrer to First Amended Complaint

Strike Punitive Damages, improper allegations

CAUSES OF ACTION: from First Amended Complaint

Legal Malpractice

Breach of Fiduciary Duty

Breach of Contract

Breach of Implied Covenant of Good Faith and Fair Dealing

SUMMARY OF FACTS:

Plaintiff Mark Leeds alleges that in February of 2014, he retained defendant Charles Clark to represent him in an underlying action plaintiff had filed for declaratory relief against The Law Offices of Reino & Iilda, stemming from a purported contractual agreement between plaintiff and the Law Offices whereby plaintiff was to receive 25% of attorney fees earned for workers compensation cases plaintiff referred to the Law Offices, which the underlying defendant failed to pay.

Plaintiff alleges that during defendant’s representation of plaintiff in that matter, defendant failed to exercise reasonable care and skill, by, among other things, failing to competently and diligently advise plaintiff, failing to abide by plaintiff’s decisions concerning the objectives of the representation, failed to explain the action to permit plaintiff to make informed decisions, consistently advising plaintiff that plaintiff’s case was strong when defendant knew or should have known to the contrary, and ultimately failing to explain to plaintiff the immense risk of an adverse judgment where a contractual provision for attorney fees was valid and controlling in the matter. It is alleged that defendant’s representation ultimately resulted in substantial discovery sanctions being awarded against plaintiff, and a judgment being entered in favor of the underlying defendants and against plaintiff for substantial sums of attorney fees and costs. It is also alleged that during the course of the representation defendant coerced plaintiff into paying defendant more money on threat of immediate withdrawal, threatened to terminate representation during pivotal moments of the case, and violated several provisions of the California Rules of Professional Conduct.

Plaintiff has filed an untimely opposition to the motion to strike, filed and served on December 3, 2019, only eight court days prior to the hearing. There has been no opposition filed to the demurrer. Defendant Clark has filed a Notice of Non-Opposition indicating that defendant has not been served with opposition to the demurrer.

RULING:

The court has reluctantly considered the untimely opposition to the motion to strike, which was filed and served only eight court days prior to the hearing, so one court day late. The court has not received written opposition to the demurrer, and evidently none has been served on moving party.

UNOPPOSED Demurrer of Defendant Clark to Plaintiff’s First Amended Complaint is OVERRULED. The FAC alleges in sufficient detail facts supporting each element of the stated causes of action, and facts showing that plaintiff suffered damage as a result of the alleged conduct of defendant. [FAC ¶¶ 8-57; see also allegations in support of each cause of action].

Defendant Charles Edward Clark’s Motion to Strike (First Amended Complaint) is GRANTED WITH LEAVE TO AMEND as to the prayer for punitive damages. The factual allegations as alleged do not support a finding of oppression or malice, and the facts are insufficient to support a claim of direct fraud on the client.

Motion is DENIED as to the facts alleged concerning defendant’s professionalism in the representation. The facts are not immaterial to the claims being asserted by plaintiff or to the understanding of the factual background of this matter.

Ten days leave to amend, if possible.