Filippini Wealth Management Inc et al vs Meister & Nunes PC
Case No: 19CV00164
Hearing Date: Fri Apr 05, 2019 9:30

Nature of Proceedings: Demurrer and Motion to Strike

TENTATIVE RULINGS: Plaintiffs have acknowledged that the demurrer and motion to strike have merit. As a result, they will be sustained, with leave to amend on or before April 19, 2019. To the extent that plaintiffs believe that some portion of the FAC must necessarily be filed under seal, the Court will consider the April 19 filing deadline to have been met if a properly-constituted motion for leave to file the FAC under seal has been filed by that date, as described below.

Background: On January 10, 2019, Filippini Wealth Management, Inc., Filippini Financial Group, Inc., Ian Filippini, and Alexandro Filippini (collectively “Filippinis”) filed their complaint (19CV00164) against Meister & Nunes, P.C. (“Meister”) in this action, alleging causes of action for (1) professional negligence, (2) breach of fiduciary duty, (3) constructive fraud, and (4) violation of Business & Professions Code section 17200, et seq. Each of the causes of action is maintained by all of the plaintiffs. The complaint generally alleges that Meister and its predecessor accounting firm have acted as plaintiffs’ CPA for many years, but breached its duty to plaintiffs with respect to (a) the preparation and unauthorized filing of financial documents, (b) its conduct in performing plaintiffs’ tax work fell below the standard of care, and (c) in gaining an unfair advantage as a result of its position as plaintiffs’ fiduciary. The constructive fraud and unfair business practices causes of action contend that defendant wrongfully charged its fees to plaintiffs’ credit card (singular, without specification as to which plaintiff or plaintiffs owned the account the card belonged to), and filed financial documents without plaintiffs’ consent or authorization.

On February 25, 2019, Meister filed a demurrer and motion to strike. The demurrer contends that the complaint fails to allege any factual allegations to support their claims that Meister acted wrongfully, or to support their claims of damage. The motion to strike seeks to strike the claim for attorneys’ fees, on the ground that there is no legal basis for such a claim.

The Filippinis’ “opposition” to the demurrer and motion to strike essentially acknowledged the insufficiency of the complaint and the impropriety of the fee request, and stated that plaintiffs would file a partially redacted First Amended Complaint, with tax return and other private financial information filed under seal.

Plaintiffs sought an ex parte order allowing them to file the FAC with redactions and with tax returns sealed. That application was denied by the Honorable Thomas P. Anderle.

Meister then filed a reply with respect to the demurrer and motion to strike, in which it asserted that unless the Filippinis filed a completely unredacted FAC before the April 5 hearing date, it would seek to have the demurrer and motion to strike sustained without leave to amend.

ANALYSIS: The demurrer is sustained and the motion to strike is granted, with leave to amend on or before April 19, 2019.

The Filippini parties acknowledged the insufficiency of their original complaint, and have indicated their intent to file a proper FAC. Meister seeks to have the demurrer and motion to strike sustained without leave to amend unless a completely unredacted FAC is filed. That request has no merit, and is rejected.

Given the acknowledged insufficiency of the complaint, the Court will sustain the demurrer and grant the motion to strike, with leave to amend, as noted above. To the extent that the Filippini parties believe that the filing of any portion of the FAC under seal is necessary, they may, pursuant to the terms of California Rules of Court, rule 2.551(b)(2) and (4), file a redacted version of the FAC and lodge an unredacted version of the FAC “conditionally under seal” with the Court, simultaneously with the filing and service of a properly constituted-motion permitting portions of the FAC to be filed under seal. The Court will consider the April 19, 2019 filing deadline for the FAC to have been met if these procedures have been followed and the motion to file under seal and related documents have been filed by that date, and a future hearing date scheduled, at which the sealing issue will be determined by the Court.