Case Name: Vasu D. Arora v. William C. Dresser, et al.
Case No.: 1-13-CV-254667

Defendant William C. Dresser (“Dresser”) demurs to the first amended complaint (“FAC”) by plaintiff Vasu Arora (“Plaintiff”) as a whole on the grounds of uncertainty and failure to allege sufficient facts to constitute a cause of action, and to each cause of action contained therein on the ground of failure to allege sufficient facts to constitute a cause of action. (See Code Civ. Proc. [“CCP”], § 430.10, subds. (e)-(f).) Defendant Roger Sisneros (“Sisneros”) brings a motion for attorney’s fees in connection with his anti-SLAPP motion. (See CCP, § 425.16, subd. (c).)

Dresser’s request for judicial notice in support of his demurrer is GRANTED. (See Evid. Code, § 452, subd. (d); People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters subject to judicial notice].)

Plaintiff’s request for judicial notice in support of his opposition to the demurrer is GRANTED IN PART and DENIED IN PART. The request is GRANTED to the extent Plaintiff seeks judicial notice of the dismissal in Vasu Arora v. Arnold Laub, et al. (San Francisco County Super. Ct., Case No. CGC-10-501595 [“the Underlying Action”]). (See Evid. Code, § 452, subd. (d); see also People ex rel. Lockyer v. Shamrock Foods Co., supra, 24 Cal.4th, at p. 422, fn. 2.) The request is DENIED to the extent Plaintiff seeks judicial notice of statements made in exhibits. (See Evid. Code, § 450 [“[j]udicial notice may not be taken of any matter unless authorized or required by law”].)

Plaintiff argues that Dresser’s papers are procedurally defective, but cites no legal authority for the Court to overrule a demurrer based on the procedural deficiencies he identified. Plaintiff also contends that Dresser’s demurrer is untimely; however, according to the Court’s order entered on March 6, 2014 (the “Prior Order”), Dresser prevailed on his motion to quash service of the FAC, and Plaintiff does not submit a proof of service indicating that he served the FAC after the Court entered the Prior Order. Therefore, Plaintiff’s arguments are unavailing. In addition, Dresser persuasively argues that Plaintiff’s papers are not code-compliant because they are typed in an impermissibly small font and the line spacing is improper. (See Cal. Rules of Court [“CRC”], rules 2.104 [“[a]ll papers must be printed or typewritten . . . in type not smaller than 12 points”] & 2.108 [line spacing].) The Court will not refuse to consider Plaintiff’s opposition based on these defects; however, the Court admonishes Plaintiff for failing to comply with the CRC.

Dresser’s demurrer to the FAC as a whole on the ground of uncertainty is OVERRULED. (See Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616 [“a demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures”].)

Dresser contends that each cause of action is barred by the statute of limitations. (See Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403 [“for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred”]; see also CCP, § 340.6, subd. (a)(2) [an action against an attorney for malpractice “arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or . . . should have discovered, . . . the wrongful act or omission,” and is tolled while the “attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred”].) Plaintiff filed this action on October 16, 2013, and in the FAC, he alleges that Dresser continued to represent him in negotiations to recover the monies owed under the terms of the negotiated settlement agreement (“Settlement Agreement”) in the Underlying Action until March 3, 2013. (FAC, ¶¶ 72(3) & 153.) Dresser insists that he ceased representing Plaintiff when the dismissal of the Underlying Action was filed on April 4, 2012, but that date is not necessarily the date when the attorney-client relationship terminated. (Gurkewitz v. Haberman (1982) 137 Cal.App.3d 328, 333 [“so long as there are unsettled matters tangential to a case, and the attorney assists the client with these matters, he is acting as his representative”].) Since the FAC alleges that Dresser represented Plaintiff until March 3, 2013, and original complaint was filed less than one year from that date, the causes of action are not barred by the statute of limitations. Dresser also asserts that there is no legal basis for any of Plaintiff’s claims against him because Plaintiff wanted a settlement agreement and the defendants in the Underlying Action were permitted to conduct discovery. These arguments are based on facts not alleged in the FAC or subject to judicial notice, and therefore, they are unavailing. (See Hall v. Great Western Bank (1991) 231 Cal.App.3d 713, 719, fn.7 [“Hall”] [“[a] court will not consider facts which have not been alleged in the complaint unless they may be reasonably inferred from the matters which have been pled or are proper subjects of judicial notice”].)

Dresser cites no legal authority and proffers no legal argument in support of his demurrer to the second and third causes of action for failure to allege sufficient facts, and thus, the Court treats his demurrer to those claims as waived. (See Badie v. Bank of America (1998) 67 Cal. App. 4th 779, 784-785 [“[w]hen [a party] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”]; see also Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 [“a point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion”].) Accordingly, Dresser’s demurrer to the second and third causes of action for failure to allege sufficient facts is OVERRULED.

Plaintiff’s first cause of action is essentially a breach of fiduciary duty and malpractice claim, and it is substantially identical to his fifth cause of action (labeled as the seventh cause of action in the FAC). (See Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 26, 38 [if the complaint states a claim, “regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer”]; see also Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1621, [elements of legal malpractice are: (1) the duty “to use such skill, prudence and diligence as members of the profession commonly possess;” (2) breach; (3) a “proximate causal connection” between the breach and injury; and (4) actual loss or damage”]: see also Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086 [“Stanley”] [breach of fiduciary duty and malpractice are separate torts] and Brown v. California Pension Administrators & Consultants, Inc. (1996) 45 Cal.App.4th 333, 347-348 [elements of a breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) its breach, and (3) damage proximately caused by the breach].)

Dresser cites Noble v. Sears Roebuck & Company (1973) 33 Cal.App.3d 654 (“Noble”) and Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324 (“Wilhelm”) for the proposition that “[c]laimed violations of rules of professional conduct do not support a civil cause of action.” However, Noble and Wilhelm preclude civil claims based on violations of the rule of professional conduct prohibiting attorneys from contacting parties represented by counsel, but do not bar claims based on other violations of the rules of professional conduct. (See Noble, supra, at p. 658; see also Wilhelm, supra, at p. 1333, fn.5.) Since Plaintiff alleges that he retained Dresser to represent him in the Underlying Action (FAC, ¶ 12), Plaintiff alleges sufficient facts to support the existence of a duty with respect to malpractice and/or breach of fiduciary duty claims. (See Vescovo v. New Way Enterprises, Ltd. (1976) 60 Cal.App.3d 582, 589 [“facts that cause a duty to arise (or from which it is inferred) must be pleaded”]; see also Ishmael v. Millington (1966) 241 Cal.App.2d 520, 523 [“Ishmael”] [an attorney owes duties to his or her client upon “accepting employment”].)

Dresser next argues that Plaintiff does not allege facts in support of the breach element, but bases his argument almost entirely on facts not alleged in the FAC or subject to judicial notice. (See Hall, supra, at p. 719, fn.7.) The only fact mentioned by Dresser that is alleged in the FAC is that Plaintiff signed the Settlement Agreement; however, Plaintiff further alleges that “Dresser coerced [Plaintiff] into signing the Settlement Agreement” by failing to give Plaintiff time to ask questions about the contract and responding to Plaintiff’s complaint about the length of the contract and his lack of understanding of its terms by instructing him to “sign it, don’t worry . . . attorneys write long agreements.” (See FAC, ¶¶ 31 & 84.) These allegations support the element of breach in support of the malpractice claims, but not in support of breach of fiduciary duty claims, because Plaintiff does not allege facts supporting the existence of a fiduciary duty prohibiting an attorney from engaging in such conduct. (See Ishmael, supra, at p. 523; see also Stanley, supra, at p. 1086 [scope of an attorney’s fiduciary duty may be determined as a matter of law based on the rules of professional conduct together with statutes and general principles relating to fiduciary relationships], Bus. & Prof. Code, § 6103, subd. (a), and Cal. Rules of Prof. Conduct, rule 3-510 [settlement offer must be communicated to client].)

Lastly, Dresser persuasively argues that Plaintiff does not allege that his conduct caused damages. (See Charnay v. Cobert (2008) 145 Cal.App.4th 170 179, quoting Viner v. Sweet (2003) 30 Cal.4th 1232, 1244 [“[t]o 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’”].) Plaintiff does not allege any facts to support his claim that he would have obtained a more favorable settlement but for Dresser’s alleged coercion. Thus, he has not alleged facts in support of the causation element. Therefore, Dresser’s demurrer to the first and fifth (i.e. seventh) causes of action for failure to allege sufficient facts is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

In support of his demurrer to the fourth cause of action (labeled as the fifth cause of action in the FAC) for failure to state a claim, Dresser states that this claim was “already decided against” Plaintiff, “[a]nd appropriately so.” Dresser cites Mallard v. Progressive Choice Insurance Company (2010) 188 Cal.App.4th 531 (“Mallard”), but the holding in that case is inapplicable here, since that court deliberated the merits of an anti-SLAPP motion—not a demurrer—and the applicability of the litigation privilege where an individual sued an adverse party’s attorney as opposed to his own lawyer. (See Mallard, supra, at pp. 543-544.) Presumably, Dresser’s argument is that the Court should sustain his demurrer simply because the Court granted Sisneros’s anti-SLAPP motion and sustained defendant Michael J. DePaul’s (“DePaul”) demurrer to the FAC on the ground that the litigation privilege bars claims against them based on their representation of the defendants in the Underlying Action. (See Prior Order, at p.3:6-26; see also Order re: DePaul’s Demurrer, at pp. 2:16-3:19.) To the contrary, the litigation privilege does not bar causes of action against Dresser by Plaintiff because Plaintiff was his client. (See Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1541.) Accordingly, Dresser’s demurrer to the fourth (i.e. fifth) cause of action for failure to allege sufficient facts is OVERRULED.

In light of the foregoing, Dresser’s demurrer to the FAC as a whole on the ground of failure to allege sufficient facts is OVERRULED. (See Jones v. Iverson (1900) 131 Cal. 101, 104 [“[t]he rule is well established that a general demurrer directed to the whole of the complaint should be overruled, if some portion of the complaint states a cause of action”].)
Sisneros’ motion for attorney’s fees is GRANTED IN PART in the amount of $3,140. (See CCP, § 425.16, subd. (c)(1); see also Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448 [“prevailing defendant may recover any reasonable costs and fees incurred . . . , including the costs incurred in bringing the anti-SLAPP motion and costs incurred in defending against the pleading,” and the reasonableness of fees “is within the discretion of the trial court”].) Sisneros’s counsel declares that he spent 4.4 hours preparing the anti-SLAPP motion and defending against the FAC, and a reasonable hourly rate for an attorney with his expertise is $350; and another attorney at his firm spent 4 hours preparing the anti-SLAPP motion and defending against the FAC, and a reasonable hourly rate for an attorney with such expertise is $400. (Meyer Decl., ¶¶ 2-3 & 5-6.) Based these figures, the Court concludes that Sisneros reasonably incurred $3,140 in attorney’s fees ([4.4 hours x $350 = $1,540] + [4 hours x $400 = $1,600] = $3,140) in bringing the anti-SLAPP motion and defending against the FAC. Counsel further declares that Sisneros incurred “costs of filing fees and other costs billed of $887.87 in connection with responding to the complaint and moving to strike.” (Id., ¶¶ 2-4.) However, Sisneros proffers no documentation or description of the “filing fees and other costs billed” to him in this case. Absent such information, the Court cannot asses the reasonableness of the “filing fees and other costs billed,” and therefore, will not include them in the award of fees. Accordingly, within 30 days of the date of the filing of this order, Plaintiff shall pay $3,140 to Sisneros’s counsel.