Case Number: BC690062 Hearing Date: February 01, 2019 Dept: A

Rosen v Reicheneder

DEMURRER (2); MOTION TO STRIKE (2)

Calendar: 2

Case No: BC690062

Hearing Date: 2/1/19

Action Filed: 1/11/18

Trial Date: None

MP: (1) Defendant Arturo Aguilar; and

(2) Defendant James Moorhead

RP: Plaintiffs Jonathan C. Rosen, individually and dba Law Office of Jonathan C. Rosen, and JCR Law Group

ALLEGATIONS:

In this action, Plaintiffs Jonathan C. Rosen, individually and dba Law Office of Jonathan C. Rosen (“Rosen”), and JCR Law Group (“JCR”) (collectively, “Rosen Plaintiffs”) commenced this action against Defendant Dale Reicheneder (“Reicheneder”), Reichender Law Group (“RLG”), James Moorhead (“Moorhead”), and Arturo Aguilar (“Aguilar”).

Rosen is a lawyer specializing in criminal defense. In 2013, the district attorney charged Aguilar with lewd conduct and sexual assault of a minor. At the time the criminal conduct occurred, Aguilar also was a minor. Aguilar confessed to the charges. Aguilar then hired Rosen to defend him against these charges. Rosen defended Aguilar and procured a plea bargain, which Aguilar accepted. As a result, Aguilar was convicted and sentenced to 1 year in the juvenile facility.

About 2.5 years after the conviction, Aguilar, acting through his attorney Reicheneder of RLG and Aguilar’s godfather, Moorhead, filed a lawsuit against Rosen and JCR for legal malpractice. The lawsuit was entitled Aguilar v. Rosen et al. (LASC Case No. EC064392) (hereinafter, “Underlying Lawsuit”). Plaintiffs allege that before Aguilar filed the Underlying Lawsuit, that Reicheneder and RLG had the duty to objectively and fairly evaluate the merits of the claim they were pursuing on behalf of Aguilar. In February 2017, Plaintiffs allege that Aguilar’s Underlying Lawsuit was dismissed with prejudice, constituting a termination in Plaintiffs’ favor.

The first amended complaint (“FAC”), filed October 22, 2018, alleges a single cause of action for malicious prosecution.

RELIEF REQUESTED:

Defendants Arturo Aguilar and James Moorhead each filed a demurrer and motion to strike the FAC.

DISCUSSION:

Demurrer and Motion to Strike of Defendant James Moorhead

Demurrer

“To prevail on a malicious prosecution claim, the plaintiff must show that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination favorable to the plaintiff; (2) was brought without probable cause; and (3) was initiated with malice.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Ca1.4th 260, 292.)

The Court notes that the demurrer is not in its proper form. The demurrer does not comply with CRC Rule 3.1320, which requires that each ground of demurrer be stated in separate paragraphs. Similarly, the demurrer papers also lack a notice stating upon what ground James Moorhead is objecting to the complaint or the causes of action therein. (See CCP §430.10.)

Upon reviewing the demurrer and accompanying documents, James Moorhead has provided arguments and exhibits, explaining why he is not liable in this action for conduct that occurred in connection with the Underlying Lawsuit and thereafter. However, these arguments and exhibits are better raised in a dispositive motion that considers the evidence. “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.¿ Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”¿ (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)¿ “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”¿ (Hahn, supra, 147 Cal. App. 4th at 747.) “The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of affidavits, declarations, depositions, and other such material which was filed on behalf of the adverse party and which purports to contradict the allegations and contentions of the plaintiff.” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-05.)

In addition, a review of the FAC shows that Plaintiffs have alleged sufficient facts at the pleading stage for a malicious prosecution cause of action. First, Plaintiffs allege that Aguilar, acting through Reicheneder and RLG, and his godfather and confidante Moorhead, filed the Underlying Lawsuit against Plaintiffs. (FAC, ¶¶9, 48.) Plaintiffs allege that the Underlying Action resolved in a termination favorable to Plaintiffs when Judge Hofer sustained Plaintiffs’ demurrers without leave to amend as to Aguilar’s operative complaint and dismissed the action with prejudice. (Id., ¶¶12, 87-88.) Second, Plaintiff alleges that the action was brought without probable cause because Aguilar pled guilty to the underlying criminal charge, could not demonstrate actual innocence, and did not challenged his conviction. (Id., ¶¶9, 39-40, 50, 52, 87.) Third, Plaintiffs argue that they alleged that the Underlying Action was initiated with malice because of the lack of probable cause. (See Ross v. Kish (2006) 145 Cal.App.4th 188, 204 [stating that malice may be inferred when a party knowingly brings an action without probable cause].) At the pleading stage, Plaintiffs’ FAC is sufficient to allege a malicious prosecution action against James Moorhead.

James Moorhead’s demurrer fails to raise arguments that attacked the sufficiency of Plaintiff’s complaint and relies on extrinsic evidence that cannot be considered at the demurrer stage. Thus, the Court will overrule the demurrer in its entirety.

Motion to Strike

James Moorhead also moves to strike allegations from the complaint, including: (1) references to his height and intimidation; (2) that he demanded entrance to the juvenile court hearings; and (3) rushing to have the juvenile file sealed. He argues that such allegations are lies.

In ruling on a motion to strike, “judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) Although false or irrelevant allegations may be stricken from the pleading (CCP §436), James Moorhead’s motion fails to include a notice that quotes in full the portions sought to be stricken. (CRC Rule 3.1322(a).) The motion also fails to specify what paragraphs, causes of action, or allegations are being stricken. Without proper notice, the Court cannot ascertain which allegations (with specific paragraph or page and line references are) James Moorhead is seeking to strike.

Finally, the arguments raised by James Moorhead in his motion to strike are better left for a dispositive motion where the Court may consider the evidence and make factual findings.

Thus, the Court will deny the motion to strike as it fails to comply with CRC Rule 3.1322.

Demurrer and Motion to Strike of Defendant Arturo Aguilar

Demurrer

Defendant Arturo Aguilar demurs to the entirety of the complaint and the single cause of action for malicious prosecution.

Aguilar argues that he had probable cause to bring the underlying lawsuit because in the Underlying Lawsuit, Judge Ralph Hofer denied Rosen’s motion for CCP §128.5 attorney’s fees and costs and did not find that the underlying legal malpractice action was completely without merit. However, Aguilar’s argument does not address the allegations of the FAC and whether they are legally tenable to allege a malicious prosecution claim. At the pleading stage, the Court will not construe Judge Hofer’s language in the Underlying Action as dispositive of whether a malicious prosecution action is proper or improper.

Next, Aguilar also relies on the arguments raised in the Underlying Lawsuit, where his counsel (Reicheneder Defendants) consulted with an expert attorney in juvenile criminal matters and obtained his opinions that the sealing of a juvenile criminal matter operates to render that matter as never having occurred. In other words, he argues that prior to filing the legal malpractice action, he was not required to set aside any convictions because there was no conviction to set aside in the first place.

For the most part, Aguilar’s arguments rely on extrinsic evidence. While court records are subject to judicial notice under Evidence Code, §452(d) (which the Court notes that Aguilar did not request judicial notice of), the truth of the matters asserted therein are not subject to judicial notice.

Again, at the demurrer stage, the Court considers that there is truth in the allegations. In alleging that Aguilar did not have probable cause to file a legal malpractice claim against them, Rosen Plaintiffs allege that the law clearly stated that Aguilar was required to set aside his conviction first and prove factual innocence of any charges. (FAC, ¶61.) Rosen Plaintiffs allege that Aguilar failed to do this because he confessed guilt to his criminal charges and did not set aside his conviction, thereby failing to fulfill prerequisites in order to bring a legal malpractice claim against Rosen Plaintiffs. (Id.; Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1200 [“In a legal malpractice case arising out of a criminal proceeding, California, like most jurisdictions, also requires proof of actual innocence”—i.e., that the person’s conviction has been reversed on appeal or through post-conviction relief, or the person has otherwise been exonerated].)

Lastly, Aguilar argues that the Underlying Lawsuit for legal malpractice against Rosen Plaintiffs did not result in a favorable termination. He argues that Rosen Plaintiffs claim in the complaint in this action that he obtained a dismissal of the Underlying Lawsuit pursuant to his demurrer being sustained, but argues that this is false because there was no determination on the merits. However, Aguilar’s arguments fail to be supported by any judicially noticeable documents. Further, Aguilar’s bare arguments, without more, fail to show that Rosen Plaintiffs did not adequately plead a favorable termination in Rosen Plaintiffs’ favor in the Underlying Lawsuit. Rather, in the complaint, Rosen Plaintiffs allege that a judgment was entered in his favor in the Underlying Lawsuit. (See FAC, ¶¶12, 87-88.)

Thus, taking Rosen Plaintiffs’ allegations as true at the demurrer stage, the Court will overrule Aguilar’s demurrer to the FAC.

Motion to Strike

Aguilar also moves to strike portions of the complaint, including any allegations that are “laced” with the unlawful disclosure of attorney-client privileged communications between Aguilar and Rosen or Aguilar’s Sealed Juvenile Court records, as well as any allegations that are “flamboyant, incendiary or legally conclusory” in the malicious prosecution allegations.

Aguilar argues that Judge Hofer affirmed that Aguilar’s juvenile court records were sealed and that Rosen Plaintiffs should be admonished for any references to the juvenile court records. Aguilar provides Judge Hofer’s order ruling on Rosen’s motion to file under seal his motion for attorney’s fees, which states that portions of the juvenile criminal records are sealed and confidential, but may narrowly be used in the Underlying Action. (Mot. at Ex. B.) Out of the abundance of caution, the Court will grant the motion to strike the allegations that refer to the contents of Aguilar’s juvenile criminal records, as they may be subject to protection and confidentiality. In opposition, Rosen Plaintiffs have not provided any contrary evidence (or court orders) showing that the juvenile records have been unsealed for all purposes. Further, to the extent such allegations are necessary, Rosen Plaintiffs should seek to file the pleading (or future records discussing the contents of the juvenile records) under seal, as Aguilar’s juvenile criminal records may be relevant to this action and necessary to be considered.

Next, Aguilar moves to strike language supporting the malicious prosecution action that he argues are flamboyant, incendiary, or legally conclusory. This argument has partial merit as several of Rosen Plaintiffs’ allegations state in a conclusory fashion that Aguilar acted without probable cause and with malice. (See e.g., FAC, ¶¶60, 64, 83.) However, the Court notes that though some of the allegations are legally conclusory and lack factual allegations, the malicious prosecution action as a whole sufficiently alleges facts to constitute a cause of action against Aguilar, as discussed above regarding Aguilar’s demurrer. Nevertheless, the Court should grant in part the motion to strike with 20 days leave to amend with regard to those allegations that are legally conclusory in support of the malicious prosecution cause of action.

RULING:

Overrule Moorhead’s demurrer to the complaint and deny Moorhead’s motion to strike.

Overrule Aguilar’s demurrer to the complaint. Grant Aguilar’s motion to strike with 20 days leave to amend regarding the allegations that discuss the contents of Aguilar’s juvenile court records and the various malicious prosecution allegations that constitute legal conclusions.