Plaintiff’s Motion to Consolidate is GRANTED. The actions have been related. No opposition was filed. The actions arise from the same transaction and there will be a substantial, if not complete, overlap in discovery and presentation of evidence at trial.

Defendants’ Demurrer is OVERRULED as to the 1st c/a for tortious interference with contract/breach of contract and SUSTAINED W/O LEAVE as the 4th c/a for tortious interference with prospective economic advantage. The 1st c/a is erroneously captioned and states sufficient facts to plead breach of contract. The 4th c/a fails to plead any independent wrongful conduct against Defendants Mardirossian firm, Able and Jaime.

Plaintiff’s Motion to Compel Depositions of Able, Jaime and Alma is DENIED w/o prejudice. Plaintiff must contact Defense counsel and both parties must discuss in good faith the reasons for Defendants’ refusal to attend and possible alternative dates for deposition.

ANALYSIS:
I. Motion to Consolidate–GRANTED

Plaintiff moves to consolidate SC120450 and related case 12K17526. Both actions are based on the attorney-client relationship between Plaintiff and Defendant Alma. SC120450 alleges Alma breached the a/c client agreement by failing to pay Plaintiff its portion of the settlement from the personal injury action. 12K17526 is based on damages arising from Plaintiff’s refusal to sign the settlement check jointly made out to Alma, the Mardirossian firm and Plaintiff. Consolidation of these two actions is proper as they arise from the same events and occurrences and will require presentation of overlapping evidence.

II. Demurrer to Complaint–OVERRULE as to the 1st c/a and SUSTAIN W/O LEAVE as to the 4th c/a

Defendants demur to the entire complaint on grounds that it is a compulsory x-complaint in 12K17526. “Except as otherwise provided by statute, if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded.” CCP §426.30(a).

This argument is moot in light of the motion to consolidate. SC120450 is no longer a separate action from 12K1526.

1st c/a for tortious interference w/contract. Defendants also demur to the 1st c/a against Alma on grounds that a tortious interference with contract claim may not be asserted against a party to the contract. Plaintiff explains in opposition that the caption to the 1st c/a is erroneously entitled and Plaintiff intended to allege a breach of contract claim, as reflected by the caption to the complaint. The 1st c/a pleads all elements of a breach of contract against Alma and demurrer must be overruled regardless of the caption. If the essential facts of some valid cause of action are alleged, even if not the one intended by plaintiff, the complaint is good against a general demurrer. See Adelman v. Associated Int’l Ins. Co. (2001) 90 CA4th 352, 359.

4th c/a for intentional interference with prospective business advantage. Defendants finally demur to the 4th c/a on grounds that no independently wrongful conduct is alleged against them. The elements of an intentional interference with prospective business relations cause of action are (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant. See Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153.

“[W]hile intentionally interfering with an existing contract is a ‘wrong in and of itself’, intentionally interfering with a plaintiff’s prospective economic advantage is not. To establish a claim for interference with prospective economic advantage, therefore, a plaintiff must plead that the defendant engaged in an independently wrongful act. An act is not independently wrongful merely because defendant acted with an improper motive.” Id. at 1158. An act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard. Id. at 1159.

The complaint fails to specify how Defendants Mardirossian firm, Able and Jaime “forced, coerced, induced, instructed, demanded and manipulated” Alma into firing Plaintiff and hiring Mardirossian. Plaintiff states in opposition that Defendant Mardirossian agreed to hire Able, Alma’s husband, to perform construction work on Garo Mardirossian’s home if Plaintiff hired the Mardirossian firm as counsel. Even if this were alleged, this would not allege independently wrongful conduct. Demurer is properly SUSTAINED W/O LEAVE as to the 4th c/a.

III. Motion to Compel Depositions of Defendants Able, Jaime and Alma–DENIED

Plaintiff moves to compel the deposition of these three defendants on grounds that they failed to appear for their duly noticed depositions on 11/5/13, 11/6/13 and 11/7/13. Plaintiff contacted the Defense counsel on 11/5/13 regarding Able’s failure to appear on that date for deposition. See Motion, Ex. H.

CCP §2025.450(b)(2) required Plaintiff to contact Defendants regarding the nonappearance. Implicit in the requirement that counsel contact the deponent to “inquire” about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue by rescheduling the deposition. See Leko v. Cornerstone Building Inspection Service (2001) 86 Cal.App.4th 1109, 1124 (failure to consider rescheduling depo and instead filing motion to compel resulted in sanctions against deposing counsel for filing unnecessary motion).

After Able failed to appear, only one letter was sent to Defense counsel on 11/5/13, the day of Able’s deposition and only nine days before this motion to compel was filed. The letter is combative and offers to hold the depositions on 11/6/13, the next day. No other alternative is suggested.

Plaintiff’s motion is DENIED for failure to contact Defendants in good faith regarding their failure to appear and to investigate possible alternative dates. Parties are ordered to meet and confer as to dates for Alma’s deposition.