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Case Name: Ahluwalia Law P.C. v. Kumar

Case No.: 19CV351458

Plaintiff/cross-defendant Ahluwalia P.C. and cross-defendant Madan Mohan Singh Ahluwalia (“Ahluwalia”) (collectively, “Cross-Defendants”) move to strike portions of the cross-complaint (“Cross-Complaint”) filed by defendant/cross-complainant Akash Kumar (“Kumar”).

I. Background
II.

A. Factual
B.

This is an action for breach of contract for failure to pay legal fees and a cross-action for legal malpractice arising out of that representation. According to the operative complaint, Kumar retained Cross-Defendants in the spring of 2018 to represent him in divorce proceedings in Contra Costa County. He allegedly failed to pay all fees owed to Cross-Defendants and then, on July 19, 2019, hired an attorney alleging malpractice, and demanding $50,000 from Cross-Defendants.

C. Procedural
D.

On August 6, 2019, Kumar filed the Cross-Complaint, alleging a single claim for legal malpractice. According to the allegations of this pleading, Cross-Defendants committed legal malpractice by, among other things: filing to ensure that a child custody evaluation was conducted before a child custody hearing; causing Kumar to incur unnecessary fees and costs and failing to adequately prepare for the aforementioned hearing. (Cross-Complaint, ¶ 11.)

On November 15, 2019, Cross-Defendants filed the instant motion to strike portions of the Cross-Complaint. (Code Civ. Proc., §§ 435 and 436.) Kumar opposes the motion.

III. Kumar’s Request for Judicial Notice
IV.

In connection with his opposition to Cross-Defendants’ motion to strike, Kumar requests that the Court take judicial notice of a Suspension Order issued by the California State Bar against cross-defendant Ahluwalia. While a court may properly take judicial notice of State Bar records as a general matter (see, e.g., In re White (2004) 121 Cal.App.4th 1453, 1469, fn. 14), only relevant matters may actually be noticed. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [explaining that “judicial notice, since it is a substitute for proof, is always confined to those matters which are relevant to the issue at hand,” internal citations omitted].) Here, the Court is not persuaded that a disciplinary order pertaining to cross-defendant’s professional conduct in completely unrelated cases over fifteen years ago has any relevance to his conduct in the underlying marital dissolution proceeding in which he represented Kumar. Accordingly, Kumar’s request for judicial notice is DENIED.

V. Motion to Strike
VI.

With the instant motion, Cross-Defendants move to strike Kumar’s request for attorney’s fees and emotional distress damages, as well as allegations regarding Ahluwalia having been subject in the past to a one-year suspension from the California State Bar for failure to competently perform legal services for various clients.

A. State Bar Allegations
B.

Cross-Defendants first assert that allegations pertaining to a disciplinary order against Ahluwalia by the State Bar should be stricken as irrelevant. A motion to strike may be used to cut out any “irrelevant, false or improper” matters asserted therein. (Code Civ. Proc., 436, subd. (a).) “Irrelevant matter” includes (1) an allegation that is not essential to the statement of a claim or defense, (2) an allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense and (3) a demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint. (Code Civ. Proc., § 430.10, subd. (a).)

Here, the Court agrees with Cross-Defendants that allegations pertaining to Ahluwalia’s actions that are the subject of past, unrelated bar disciplinary proceedings are irrelevant to Kumar’s legal malpractice claim and should therefore be stricken. It is well-settled that character evidence is inadmissible to prove that individual’s conduct on a particular occasion. (Evid. Code § 1101, subd. (a).) The Court is not persuaded by Kumar’s argument that such evidence is admissible to establish that Ahluwalia has a “habit” of not competently representing clients. The cases cited by Kumar in support of his argument are distinguishable and involve the provision of medical care. In one, Snibbe v. Superior Court (2014) 224 Cal.App.4th 184, evidence pertaining to the physician’s habits relative to the preparation of postoperative orders, daily conduct, was deemed admissible because the physician had himself placed at issue his custom and practice of preparing those orders, and in the second, Dincau v. Tamayose (1982) 131 Cal.App.3d 780, evidence of the physician’s habitual response to telephone calls about minors’ condition, was deemed relevant and admissible because it represented a regular, weekly occurrence in his office. Allegations pertaining to Ahluwalia’s conduct with a select number of clients over many years is hardly equivalent to practices engaged in by physicians on a weekly or daily basis. The Court is not aware of any authority which provides that evidence of a past disciplinary State Bar proceeding can be used in the manner in which Kumar indicates he intends to use it here. Therefore, the State Bar allegations are stricken from the Cross-Complaint.

C. Emotional Distress Damages
D.

Next, Cross-Defendants contend that Kumar’s request for emotional distress damages should be stricken because such damages are not recoverable in this action.

As Cross-Defendants explain in their supporting memorandum, generally, emotional distress damages are not recoverable in legal malpractice actions where the alleged attorney misconduct only causes the client economic loss or property damage. (Merenda v. Superior Court (1992) 3 Cal.App.4th 1, 10.) Such damages are recoverable only where the distress suffered “naturally ensues from the acts complained of,” and emotional distress is “not an inevitable consequence of the loss of money.” (Id.)

Cross-Defendants explain that Kumar’s Cross-Complaint seeks only economic damages and therefore emotional distress damages are not recoverable. They continue that this legal malpractice action stems from Cross-Defendants’ representation of Kumar in an underlying family law matter and emotional distress damages are not recoverable in such cases.

In his opposition, Kumar counters that such damages are recoverable because he suffered more than just an economic injury , particularly the fear that Cross-Defendants’ negligence would result in him losing custody of his children or that they would otherwise be endangered. The only authorities cited by Kumar in support of his position, however, either precede Merenda, the seminal authority on this issue, and are factually distinguishable (see Betts v. Allstate Ins. Co. (1984) 154 Cal.App.3d 688; Holliday v. Jones (1989) 215 Cal.App.3d 102), or are from other jurisdictions (see, e.g., McEvoy v. Helikson (1977) 277 Ore. 781). The Court is not persuaded that Kumar has pleaded factual circumstances that would permit him to recover emotional distress damages. He does not allege, for example, that he actually lost custody of his children as a result of Cross-Defendants’ alleged misconduct. Thus, his recovery is confined to economic damages and therefore Cross-Defendants’ request to have emotional distress damages stricken from the Cross-Complaint is granted.

E. Attorney’s Fees
F.

Finally, Cross-Defendants move to strike Kumar’s request for attorney’s fees based on their assertion that has not pleaded facts establishing an entitlement to such fees.

Generally, each party is required to bear his or her own attorney fees unless a statute or agreement of the parties provides otherwise. (Code Civ. Proc., § 1021; see Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 504.) Cross-Defendants explain that since Kumar has not alleged that he is entitled to recover attorney’s fees from them pursuant to statute or contract, his request must be stricken.

Kumar responds that the basis of his request is not contractual or statutory, but rather the so-called “tort of another” doctrine. This doctrine provides that “[a] person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney’s fees, and other expenditures thereby suffered or incurred.” (Prentice v. North American Title Guar. Corp., Alameda Div. (1963) 59 Cal.2d 618, 620-621, emphasis added.) Attorney fees are recoverable in malpractice actions where the plaintiff client incurred such fees instituting an action against a third party, or defending an action brought by a third party, as a direct result of attorney malpractice. (Orrick Herrington & Sutcliffe LLP v. Superior Court (2003) 107 Cal.App.4th 1052, 1059-1060.)

Kumar suggests that the doctrine entitles him to recover fees that he has had to pay to new counsel to correct the harm purportedly caused by Cross-Defendants’ alleged negligence, but recovery of attorney’s fees via the tort of another doctrine is clearly limited to those fees incurred by a plaintiff client in instituting an action against a third party, or defending an action against a third party. (See Orrick, supra, 107 Cal.App.4th at 1059-1060.) Here, there is no allegation in the Cross-Complaint that Kumar incurred attorney’s fees in this manner, i.e., that he had to institute an action against a third party, or defend an action brought by a third party, as a result of Cross-Defendants’ conduct, and consequently occurred attorney’s fees. Thus, Kumar’s request for attorney’s fees is stricken.

In accordance with the foregoing analysis, Cross-Defendants’ motion to strike is GRANTED WITHOUT LEAVE TO AMEND.