Case Name: Bekah Du Bois v. Ismael Perez
Case No.: 2018-CV-335867

Demurrer to the Second Amended Complaint by Defendant Ismael Perez

Factual and Procedural Background

This is a professional negligence case. On May 26, 2009, plaintiff Bekah Du Bois (“Plaintiff”) (self-represented) filed an action against her husband, Gary B. Stratton (“Stratton”), for dissolution of marriage in Santa Clara County (case no. 6-09-FL-002093). (Second Amended Complaint [“SAC”] at ¶ 10.) The court entered a judgment for dissolution on November 30, 2010. (Id. at ¶ 12.)

On June 24, 2009, Plaintiff filed a civil action against Stratton for sexual battery (case no. 2009-1-CV-145620). (SAC at ¶ 11.) Plaintiff did not prevail in the civil action or subsequent appeal of that case. (Id. at ¶ 13.)

On April 21, 2011, Stratton filed a malicious prosecution action against Plaintiff (case no. 2011-1-CV-199490). (Id. at ¶ 14.)

Plaintiff hired defendant and attorney Ismael Perez (“Perez”) to represent her in the malicious prosecution case. (SAC at ¶¶ 17-18.) On April 20, 2016, defendant Perez determined that, due to illness, he would not be able to represent Plaintiff in the malicious prosecution case. (Id. at ¶ 19.) Perez thereafter contacted Anthony Boskovich (“Boskovich”), counsel for Stratton, seeking a stipulation to continue the trial date. (Ibid.) Boskovich agreed on condition that Plaintiff waive any objection based on the expiration of the five year statute of limitations for commencement of trial. (Ibid.)

In addition, Stratton demanded that Plaintiff produce copies of the transcript of the sexual battery case. (SAC at ¶ 20.) Plaintiff indicated she would waive the five year statute of limitations and produce the transcripts if Stratton agreed to a Mutual Waiver of Spousal Support in the dissolution case. (Ibid.) Defendant Perez negotiated the stipulation himself which included provisions applicable to the malicious prosecution action and the dissolution case. (Id. at ¶ 21.) Perez allegedly conducted these negotiations without communicating with Elainie Honjas (“Honjas”), Plaintiff’s counsel of record in the dissolution case. (Ibid.) The parties filed the stipulation in the malicious prosecution action on April 25, 2016. (Id. at ¶ 22.) On July 26, 2016, Honjas filed the Mutual Waiver of Spousal Support stipulation in the dissolution case. (Id. at ¶ 24.)

On May 17, 2017, Plaintiff discovered that Stratton had re-married on October 17, 2015. (SAC at ¶ 25.) Prior to this time, Plaintiff was not aware of any facts which led her to suspect that Stratton had re-married. (Id. at ¶ 27.) As a consequence, Stratton was ineligible for spousal support from Plaintiff, at the time he agreed to the Mutual Waiver of Spousal Support as part of the stipulation in the malicious prosecution case. (Ibid.)
The malicious prosecution case was set for trial on February 13, 2018. (SAC at ¶ 28.) On that day, Stratton dismissed the case. (Ibid.)

On June 17, 2019, Plaintiff learned for the first time that a Trial Setting Conference was held on January 5, 2016, which defendant Perez had attended. (SAC at ¶ 30.) On that day, the malicious prosecution case was set for trial on June 6, 2016. (Id. at ¶ 31.) This date is later than five years after the case was filed. (Ibid.) Plaintiff did not appear with Perez at the Trial Setting Conference and did not authorize him to waive the five year statute of limitations for commencement of trial. (Ibid.)

Had Plaintiff known about the re-marriage, she would not have agreed to the waiver of the statute of limitations which allowed Stratton to continue the malicious prosecution case. (SAC at ¶ 41.) Had attorney Perez exercised proper care and skill in the representation, Plaintiff would not have entered into the Mutual Waiver of Spousal Support and the five year statute of limitations would have expired prior to the commencement of trial. (Id. at ¶ 42.)

On February 20, 2019, Plaintiff filed a First Amended Complaint (“FAC”) against defendant Perez alleging causes of action for professional negligence and breach of contract. Perez filed a demurrer to the FAC which was sustained by the court with leave to amend.

On July 10, 2019, Plaintiff filed the operative SAC alleging causes of action for professional negligence, breach of fiduciary obligation, and breach of contract.

Demurrer to the SAC

Currently before the Court is the demurrer to the SAC by defendant Perez. Perez filed a request for judicial notice in conjunction with the motion. Plaintiff filed written opposition. Perez filed reply papers.

Request for Judicial Notice

In support of the motion, defendant Perez requests judicial notice of the following: (1) Complaint in Bekah Du Bois v. Elaine Honjas (San Mateo County Case No. 18CIV02488) filed on May 16, 2018 (Exhibit A); (2) Online Case Docket in Gary Stratton v. Bekah Du Bois (Santa Clara County Case No. 2011-1-CV-199490) as of March 19, 2019 (Exhibit B); (3) Online Case Docket in Stratton v. Stratton (Santa Clara County Case No. 2009-6-FL-002093) as of March 19, 2019 (Exhibit C); and (4) Substitution of Attorney filed on February 24, 2017 in Gary Stratton v. Bekah Du Bois (Santa Clara County Case No. 2011-1-CV-199490) (Exhibit D).

Here, Exhibits A through D constitute records of the superior court subject to judicial notice under Evidence Code section 452, subdivision (d). (See Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500 [the court may take judicial notice of its own file]; see also Miller v. Super. Ct. (2002) 101 Cal.App.4th 728, 734 fn.2 [appellate court took judicial notice of superior court files under Sections 452, subd. (d) and 459].) There is no opposition to the request. In addition, the request appears relevant to issues raised on demurrer. (See Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [judicial notice is confined to those matters which are relevant to the issue at hand].)

Accordingly, the request for judicial notice is GRANTED.

Legal Standard

“In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213–214.)

“The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. … [I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.)

Grounds for Demurrer to the SAC

Defendant Perez raises the following arguments on demurrer: (1) the SAC is barred by the statute of limitations; and (2) each claim fails to state a valid cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

Statute of Limitations

“Statute of limitations is the collective term applied to acts or parts of acts that prescribe the periods beyond which a plaintiff may not bring a cause of action.” (V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499, 509.) “A plaintiff must bring a claim within the limitations period after accrual of the cause of action. In other words, statutes of limitation do not begin to run until a cause of action accrues. Generally speaking, a cause of action accrues at the time when the cause of action is complete with all of its elements.” (Id. at pp. 509-510, internal citations and quotation marks omitted.)

“A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. In order for the bar…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.” (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42, citation omitted.)

The applicable statute of limitations for legal malpractice claims is Code of Civil Procedure section 340.6. That section states: (a) An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. In no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist: [¶] (1) The plaintiff has not sustained actual injury; [¶] (2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred; [¶] (3) The attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney, except that this subdivision shall toll only the four-year limitation; and [¶] (4) The plaintiff is under a legal or physical disability which restricts the plaintiff’s ability to commence legal action. (Code Civ. Proc., § 340.6, subd. (a).)

“Absent tolling, a legal malpractice action accrues, and the one-year limitations period commences running, when the plaintiff discovers or through the use of reasonable diligence should have discovered the facts constituting the wrongful act. [Citation.] The one-year period is triggered when the client discovers, or should have discovered, the facts constituting the wrongful act or omission and not by his discovery that such facts constitute professional negligence, i.e., by discovery that a particular legal theory is applicable based on the known facts. It is irrelevant that the plaintiff is ignorant of his legal remedy or the legal theories underlying his cause of action. [Citation.]” (Truong v. Glasser (2009) 181 Cal.App.4th 102, 110, internal quotation marks omitted.)

Defendant Perez here argues the alleged wrongful act or omission occurred, at the latest, on July 27, 2016 when Plaintiff entered into and filed the Mutual Spousal Support Waiver in the dissolution case. (SAC at ¶ 24.) Perez contends that Plaintiff could have discovered information about Stratton’s remarriage from Honjas, her counsel in the dissolution case, or through internet searches of her daughter, Sarah Stratton. Perez asserts these internet searches would have made Plaintiff aware of the article from October 17, 2015 about Stratton’s remarriage. Perez thus claims that Plaintiff should have had notice of the remarriage as early as that date but not later than July 27, 2016. As the original complaint was not filed until May 16, 2018, defendant Perez argues the action is barred by the one-year statute of limitations under section 340.6.

As stated above, the one-year limitations begins to run when Plaintiff discovers facts constituting the wrongful act. Plaintiff here alleges she did not discover facts constituting Stratton’s remarriage until May 17, 2017. (SAC at ¶ 25.) She also claims that, prior to that day, she was not aware of any facts which would have led her to believe that Stratton had remarried and thus was ineligible for spousal support. (Id. at ¶¶ 26-27.) Defendant Perez disputes these allegations arguing that Plaintiff should have been aware of Stratton’s remarriage because of her internet searches or her attorney-client relationship with attorney Honjas. These contentions however are factual arguments that cannot be resolved on demurrer. (See Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 889-890 [resolution of factual issues is not appropriate on demurrer].) For example, the fact that Plaintiff conducts internet searches of her daughter does not necessarily translate to finding online articles about whether Stratton had remarried. Instead, for purposes of demurrer, the Court must accept the allegations as true. (See Olson v. Toy (1996) 46 Cal.App.4th 818, 823 [for purposes of demurrer, we accept these allegations as true].) As Plaintiff allegedly discovered facts in support of her claims on May 17, 2017 and filed this case on May 18, 2018, the action is timely and falls within the one-year limitations period under section 340.6.

Accordingly, the demurrer to the SAC on the ground that the pleading is barred by the statute of limitations is OVERRULED.

First Cause of Action: Professional Negligence

Defendant Perez argues the professional negligence claim fails as Plaintiff does not allege facts establishing the existence of a duty or damages.

The four essential elements of a professional negligence claim are: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence. (Osornio v. Weingarten (2004) 124 Cal.App.4th 304, 319 (Osornio).)

“[T]he existence of the attorney’s duty of care owing to the plaintiff is generally a question of law that may be addressed on demurrer.” (Osornio, supra, 124 Cal.App.4th at p. 319.) “If the plaintiff does not and cannot show a duty owed directly to him, the action is subject to dismissal.” (Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 612.)

Plaintiff here alleges defendant Perez owed her a duty to competently represent her interests in the malicious prosecution case. (SAC at ¶ 34.) Plaintiff also claims Perez assumed a voluntary duty to competently represent her interests in the dissolution case as to the Mutual Waiver of Spousal Support and waiver of the five year statute of limitations for commencement of trial. (Id. at ¶¶ 36-37.) Defendant Perez does not address these allegations in challenging whether a legal duty exists between Perez and Plaintiff. Such a duty would likely exist given the attorney-client relationship in the malicious prosecution case. Instead, Perez disputes whether he breached any such duty by (1) failing to determine if Stratton had re-married; and (2) agreeing to waive the five year statute of limitations for commencement of trial. (See Memo of P’s & A’s at pp. 17-19.) In doing so, he argues he was not involved in the drafting or filing of the Mutual Waiver of Spousal Support and he did not represent Plaintiff in the dissolution action or sexual battery case. Again, these are factual contentions that cannot be resolved on demurrer. (See Boon v. Rivera (2000) 80 Cal.App.4th 1322 [question relating to breach of duty is a factual question not appropriately resolved by demurrer].)

Nevertheless, as defendant Perez persuasively argues, Plaintiff fails to properly plead damages arising from any of the alleged breaches. “Unless a party suffers damage, i.e., appreciable and actual harm, as a consequence of his (or her) attorney’s negligence, he (or she) cannot establish a cause of action for malpractice.” (Thompson v. Halvonik (1995) 36 Cal.App.4th 657, 661.) “[D]amages may not be based upon sheer speculation or surmise, and the mere possibility or even probability that damage will result from the wrongful conduct does not render it actionable.” (Ventura County Humane Society v. Holloway (1974) 40 Cal.App.3d 897, 907.)

As stated above, Plaintiff alleges defendant Perez breached his duty by (1) failing to determine if Stratton had re-married; and (2) agreeing to waive the five year statute of limitations for commencement of trial. (See SAC at ¶¶ 38, 40.) Plaintiff however alleges the malicious prosecution case was dismissed on February 13, 2018. (Id. at ¶ 28.) As the case was dismissed, is not clear from the SAC how any of the alleged breaches caused Plaintiff to suffer damages to support a claim for professional negligence. In opposition, Plaintiff refers the Court to allegations in paragraphs 28 and 29 regarding payment to an attorney for his services who later withdrew prior to the malicious prosecution trial. (See OPP at p. 6.) But, as noted in the reply papers, such allegations do not indicate whether these legal services charged to Plaintiff resulted from negligence by defendant Perez. (See Reply at p. 8.) Nor do these allegations constitute a causal link between the alleged malpractice and Plaintiff’s claim for damages. The professional negligence cause of action therefore fails to state a valid claim.

Accordingly, the demurrer to the first cause of action is SUSTAINED.

Second Cause of Action: Breach of Fiduciary Obligation

The second cause of action is a claim for breach of fiduciary obligation. This claim does not appear to be properly before the Court as it exceeds the Court’s order granting leave to amend from the prior demurrer.

Following an order sustaining a demurrer with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court’s order. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) “The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.” (Ibid.; see Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015 [acknowledging rule but finding it inapplicable where new cause of action “directly responds” to trial court’s reason for sustaining the demurrer].)

As stated above, the Court sustained the demurrer with leave to amend as to the claims for professional negligence and breach of contract. The Court did not give Plaintiff leave to amend to add a claim for breach of fiduciary obligation. Nor does this cause of action “directly respond” to the Court’s reasons for sustaining the demurrer to the FAC. Thus, the second cause of action exceeds the scope of amendment permitted by the Court’s order on the demurrer and is hereby STRICKEN. (See Code Civ. Proc., § 436, subd. (b) [court may strike any pleading not drawn or filed in conformity with an order of the court].)

As the claim has been stricken, the Court declines to address the arguments raised on demurrer.

Third Cause of Action: Breach of Contract

The third cause of action is a claim for breach of contract. To state a cause of action for breach of contract, a party must plead the existence of a contract, his or her performance of the contract or excuse for nonperformance, the defendant’s breach and resulting damage. (Lortz v. Connell (1969) 273 Cal.App.2d 286, 290.) Defendant Perez incorporates the same arguments in his demurrer to the first cause of action. Thus, for reasons stated above, there is no claim for damages in support of the breach of contract cause of action.

Consequently, the demurrer to the third cause of action is SUSTAINED.

Leave to Amend

Should the Court sustain the demurrer, Plaintiff requests further leave to amend. (See OPP at p. 7.)

“The plaintiff bears the burden of proving there is a reasonable possibility of amendment.” (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43 (Rakestraw).) To satisfy this burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) “Plaintiff must clearly and specifically set forth the ‘applicable substantive law’ [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. Further, plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action. [Citations.] Allegations must be factual and specific, not vague or conclusionary.” (Rakestraw, supra, at pp. 43-44.)

Here, Plaintiff has already been given two chances to amend her pleading. While Plaintiff requests leave to amend once again, she does not provide any guidance on how she intends to amend her pleading to state a valid claim. Having failed to carry this burden, the Court finds no legal basis for further amendment.

Accordingly, leave to amend is DENIED. (See Davies v. Sallie Mae, Inc. (2008) 168 Cal.App.4th 1086, 1097 [appellate court determined that trial court did not abuse its discretion in sustaining demurrer without leave to amend after plaintiff had two previous opportunities to amend the complaint].)
Disposition

The request for judicial notice by defendant Perez is GRANTED.

The demurrer to the SAC by defendant Perez on the ground that the pleading is barred by the statute of limitations is OVERRULED.

The Court, on its own motion, STRIKES the second cause of action as it is not drawn in conformity with the Court’s prior order on the demurrer to the FAC.

The demurrer to the first and third causes of action in the SAC by defendant Perez is SUSTAINED WITHOUT LEAVE TO AMEND for failure to state a valid claim.

The Court will prepare the Order.