Cross-defendants Law Offices of Danning Jiang, and Danning Jiang (collectively, “Cross-Defendants”) demur to the Third Amended Cross-Complaint (“TACC”) of cross-complainant Ailan Hu (“Cross-Complainant”). Cross-Defendants also move to strike certain portions of the TACC.

Cross-Defendants’ demurrer on the grounds of uncertainty in connection with the classification of this action is OVERRULED. Cross-Defendants’ argument regarding the classification of this action is not the proper subject of a demurrer. The Court has addressed this argument in connection with the motion to strike.

Cross-Defendants’ demurrer to the sixth cause of action on the grounds of uncertainty is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

The first cause of action is for breach of contract. The elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal. 4th 811, 821.) Cross-Defendants argue that Cross-Complainant does not identify any specific breach of any agreement entered into between Cross-Defendants and Cross-Complainant. Cross-Complainant alleges various breaches in paragraph 33 of the TACC. Cross-Defendants also argue that Cross-Complainant has not alleged how she was damaged by any alleged breach. Cross-Complainant alleges generally that she suffered damages, including amounts paid to Law Offices of Danning Jiang and damages resulting from improper and inadequate legal representation. (TACC, ¶ 34.) This is a sufficient allegation of damages. (See Colvig v. RKO Gen. (1965) 232 Cal. App. 2d 56, 69 [“[T]he natural and ordinary damages resulting from a breach of contract may be recovered under a general allegation of damages.”].) Accordingly, Cross-Defendants’ demurrer to the first cause of action is OVERRULED.

The second cause of action is for breach of the implied covenant of good faith and fair dealing. The implied covenant of good faith is read into contracts in order to protect the express promises of the contract. (Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 373, citing Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 690).) The scope of the conduct prohibited by the covenant of good faith is circumscribed by the purposes and terms of the contract. (Id., citing Foley, supra, 47 Cal.3d at 683; Ellis v. Chevron, U.S.A., Inc. (1988) 201 Cal.App.3d 132, 139; Gerdlund v. Electronic Dispensers Intl. (1987) 190 Cal.App.3d 263, 277).) The covenant is implied as a supplement to the express terms of a contract, to prevent a contracting party from engaging in conduct that frustrates the other party’s rights to the benefits of the contract. (Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal. App. 4th 1026, 1031-1032.) Cross-Complainant has not alleged any facts demonstrating that Cross-Defendants engaged in conduct that frustrated Cross-Complainant’s rights to the benefits of the subject contracts other than the actual breaches encompassed by the breach of contract cause of action. Accordingly, Cross-Defendants’ demurrer to the second cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

The third cause of action is for professional negligence. “The elements of a cause of action in tort for professional negligence 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.” (Budd v. Nixen (1971) 6 Cal. 3d 195, 200.) Cross-Defendants’ only argument in the moving papers is that Cross-Complainant must show that Cross-Defendants actions caused damage to Cross-Complainant in connection with her underlying criminal and family law matters. In other words, Cross-Defendants contend that Cross-Complainant must show that, but for Cross-Defendants’ negligence, Cross-Complainant would have prevailed in the underlying litigation. Cross-Defendants assert that Cross-Complainant’s criminal case was dismissed and the family law matter was resolved, so Cross-Complainant cannot show that she was damaged in those matters. The requirement to show that a plaintiff would have prevailed in an underlying lawsuit only applies when the alleged malpractice concerns the prosecution of that lawsuit. (See DiPalma v. Seldman (1994) 27 Cal. App. 4th 1499, 1506-1507.) Cross-Complainant has alleged damages resulting from Cross-Defendants’ alleged negligence other than the loss of an underlying action. Accordingly, Cross-Defendants’ demurrer to the third cause of action is OVERRULED.

The fourth cause of action is for breach of fiduciary duty. “The elements of a cause of action for breach of fiduciary duty are: (1) existence of fiduciary duty; (2) the breach of that duty; and (3) damage proximately caused by that breach.” (Mosier v. Southern California Physicians Insurance Exchange (1998) 63 Cal.App.4th 1022, 1044; see also CACI, No. 605.) “In order to plead a cause of action for breach of fiduciary duty, there must be shown the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach. The absence of any one of these elements is fatal to the cause of action.” (Brown v. California Pension Administrators & Consultants, Inc. (1996) 45 Cal.App.4th 333, 347 – 348.) Cross-Defendants argue that there is no allegation showing a breach of the duty of confidentiality or loyalty. Cross-Complainant alleges, inter alia, that Cross-Defendants made misrepresentations to her and charged her for legal services they did not perform. (See TACC, ¶¶ 20, 22, 25-26.) This is sufficient to demonstrate breaches of fiduciary duty by Cross-Defendants. Accordingly, Cross-Defendants’ demurrer to the fourth cause of action is OVERRULED.

The fifth cause of action is for fraud and deceit. Cross-Defendants argue that Cross-Complainant’s allegations do not meet the heightened specificity requirement for a fraud cause of action. “In California, fraud must be pled specifically; general and conclusory allegations do not suffice.” (Lazar v. Superior Court (1996) 12 Cal. 4th 631, 645.) Cross-Complainant provides sufficiently detailed factual allegations regarding the alleged fraud in the “general allegations” section of the TACC, which is incorporated into the fifth cause of action. Accordingly, Cross-Defendants’ demurrer to the fifth cause of action is OVERRULED.

The seventh cause of action is for unfair competition under Business & Professions Code section 17200. Cross-Defendants argue that Cross-Complainant’s allegation in this cause of action regarding Cross-Defendants’ other clients being intimidated by the court process (TACC, ¶ 61) is irrelevant. This is not the only allegation in this cause of action. Cross-Complainant has alleged certain other practices engaged in by Cross-Defendants. (See TAC, ¶¶ 62-63.) A demurrer cannot be sustained to part of a cause of action. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal. App. 4th 1028, 1047.) Accordingly, Cross-Defendants’ demurrer to the seventh cause of action is OVERRULED.

In addition the arguments discussed above, Cross-Defendants argue that the first, second, third, fourth, sixth, and seventh causes of action are time-barred. In their reply papers, Cross-Defendants appear to limit their argument to the first, second, and fourth causes of action. Cross-Defendants contend that the applicable statute of limitations is Code of Civil Procedure section 340.6. Section 340.6 states, in relevant part:

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.

Cross-Complainant argues that this code section does not apply because all of her causes of action are based in fraud. While there are allegations of fraud in the TACC, the first, second, and fourth causes of action are not fraud causes of action. Cross-Complainant is bringing this action against an attorney for a wrongful act arising in the performance of professional services. Therefore, Code of Civil Procedure section 340.6 is the proper statute of limitations.

The original Complaint was filed on October 19, 2011. It is not apparent from the allegations of the TACC when Cross-Complainant discovered, or should have discovered, Cross-Defendants’ alleged wrongful acts. Cross-Complainant alleges she retained new counsel on October 20, 2010, but this allegation by itself does not show that the new counsel was retained in response to any alleged conduct by Cross-Defendants. Moreover, October 20, 2010, was less than one year prior to the filing of the Complaint.

“A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred.” (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403, citing Mosely v. Abrams (1985) 170 Cal.App.3d 355, 359-360).) “In order for the bar of the statute of limitations 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.” (Id., citing Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1155).) It is not clear from the allegations on the face of the TACC that the action is time-barred. Therefore, Cross-Defendants’ demurrer is not sustained on this basis.

Cross-Defendants move to strike certain portions of the TACC. First, Cross-Defendants argue that Cross-Complainant improperly seeks to change the classification of this case from limited to unlimited. Cross-Complainant’s only argument in opposition is that the Court permitted Cross-Complainant to file an amended pleading, the TACC, so Cross-Complainant had Court approval for the reclassification. While it is true that the Court granted leave to file an amended pleading, that does not mean that the Court authorized any specific changes to be made. Generally, a court will not consider the validity of a proposed amended pleading; the legal sufficiency of an amendment can be tested by a motion to strike or demurrer at a later date. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal. App. 3d 1045, 1048.) Cross-Complainant never filed a motion for reclassification pursuant to Code of Civil Procedure section 403.040. Consequently, the reclassification allegations in the TACC were not added in conformity with the law and are struck. (See Code Civ. Proc, § 436.)

Cross-Defendants argue that the sixth cause of action fails to state a cause of action. The motion to strike is MOOT with regard to the sixth cause of action.

Cross-Defendants contend that Cross-Complainant has not set forth facts supporting her punitive damages claim. As discussed in connection with the demurrer, Cross-Complainant has alleged fraudulent conduct by Cross-Defendants. This is sufficient to support a claim for punitive damages. (See Civ. Code, § 3294, subd. (a).)

Lastly, Cross-Defendants argue that Cross-Complainant is not entitled to attorney’s fees. Attorney’s fees are generally only recoverable pursuant to contract or statute. (Code Civ. Proc., § 1021.) Cross-Defendants contend that there is no contract or statute authorizing attorney’s fees in this action. Cross-Complainant correctly points out in opposition that this case previously went through arbitration (TACC, ¶ 28) and therefore attorney’s fees are authorized by statute. (Bus. & Prof. Code, § 6204, subd. (d).)

The currently-scheduled CMC date of March 25, 2014 is CONTINUED TO May 13, 2014 at 10:00 a.m. in Department 5.