Case Name: Erblich. v. Marsten
Case No.: 17CV320907

According to the allegations of the first amended complaint (“FAC”), plaintiff Mitchell Erblich (“Plaintiff”) hired defendant Michelle Marsten (“Defendant”) to represent him in a family law action filed in November 2007. (See FAC, ¶ 5.) On February 15, 2016, the arbitrator issued a ruling entitled “Erblich Binding Arbitration Award” regarding the valuation and division of personal property. (See Def.’s request for judicial notice, exh. A.) On May 31, 2016, the Court [Hon. Towery] issued its statement of decision, granting Lenora D. Erblich’s petition to confirm contractual arbitration, and denying Plaintiff’s petition to vacate contractual arbitration award. (See Def.’s request for judicial notice, exh. D.)

Over the course of a ten-year litigation, Plaintiff paid Defendant over $160,000; however, he has an outstanding bill of $42,600.12. (Id.) On July 7, 2016, the Court [Hon. Towery] granted Marsten’s motion to be relieved as counsel for Plaintiff. (See Def.’s request for judicial notice, exh. B.) On August 31, 2016, the Court [Hon. Towery] confirmed its prior order granting Marsten’s motion to be relieved as counsel in the “Findings and Order After Hearing,” and also confirmed Lenora D. Erblich’s petition to confirm contractual arbitration and denied Plaintiff’s petition to vacate contractual arbitration award in the “Order Confirming Arbitration Award, Arbitrator’s Fees, Allocation, and Judgment.” (See Def.’s request for judicial notice, exh. D.) On December 22, 2017, Plaintiff filed his initial complaint against Defendant, asserting causes of action for:

1) Legal malpractice;
2) Breach of fiduciary duty; and,
3) Breach of contract.

On March 19, 2018, Plaintiff filed the FAC against Defendant, asserting causes of action for:

1) Legal malpractice;
2) Breach of fiduciary duty;
3) Breach of contract;
4) Breach of the covenant of good faith and fair dealing; and,
5) Fraud.

Plaintiff contends that Defendant committed legal malpractice through her failure to allow Plaintiff to secure his premarital property from the marital residence, to enforce numerous court orders against his former spouse, to secure a proper first right of refusal to purchase the marital residence, and to enforce court orders during the course of her representation, including one that required his former spouse to pay principal and interest payments on the mortgage on the marital residence which she failed to do, nearly resulting in foreclosure. (See FAC, ¶¶ 8-11, 18, 28.)

Defendant demurs to the first through fourth causes of action on the ground that they are barred by the one-year statute of limitations of Code of Civil Procedure section 340.6. Defendant also demurs to each cause of action on the ground that they fail to state facts sufficient to constitute a cause of action, and to the second cause of action on the ground that it is uncertain. Defendant also moves to strike portions of the FAC.

The demurrer to the first through fourth causes of action for fraud and negligent misrepresentation

Defendant demurs to the first through fourth causes of action on the ground that they are barred by the one-year statute of limitations provided by Code of Civil Procedure section 340.6. In opposition, Plaintiff acknowledges that “[t]he gravamen of a complaint and the nature of the right sued on, rather than the form of the action or relief demanded, determines which statute of limitation applies…. [w]here the injury is suffered by reason of an attorney’s professional negligence, the gravamen of the claim is legal malpractice, regardless of whether it is pled in tort or contract.” (Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54, 65-66; see also Levin v. Graham & James (1995) 37 Cal.App.4th 798, 805 (stating that “[i]n all cases other than actual fraud, whether the theory of liability is based on the breach of an oral or written contract, a tort, or a breach of a fiduciary duty, the one-year statutory period applies”); see also Stoll v. Super. Ct. (S-K-I Ltd.) (1992) 9 Cal.App.4th 1362, 1369 (reversing trial court’s overruling of demurrer, stating that “the action below is time barred under section 340.6, and that the demurrer should have been sustained without leave to amend”); see Opposition to Def.’s motion to strike , pp. 3:22-25, 4:1-9 (citing to above cases and stating “[m]alpractice statute cannot be circumvented by alleging breach of fiduciary duty by, among other things, charging excessive fees”).) Instead, Plaintiff contends that his participation in the Santa Clara County Bar Association’s fee arbitration program “either tolls the applicable statute of limitations or in the alternative in and of itself constitutes the filing of a malpractice action by the Plaintiff….”

However, Plaintiff’s opposition fails to set forth and facts or citations as to how any kind of tolling might apply here. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended”).) Moreover, it should be noted that the fee arbitration program is separate and apart from the alleged malpractice. Plaintiff’s argument regarding the first through fourth causes of action lack merit. The demurrer to the first through fourth causes of action on the ground that they are time-barred by Code of Civil Procedure section 340.6 is SUSTAINED without leave to amend.

The demurrer to the fifth cause of action for fraud

Defendants demur to the fifth cause of action for fraud, asserting that it is not pled with the requisite specificity and fails to allege a misrepresentation. Indeed, “fraud actions are subject to strict requirements of particularity in pleading.” (Furia v. Helm (2003) 111 Cal.App.4th 945, 956; see also Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1268 (stating same); see also Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184 (stating that “[i]n California, fraud must be pled specifically; general and conclusory allegations do not suffice”).) The specificity requirement has two purposes: to apprise the defendant of certain definite accusations against him so that he can intelligently respond to them, and also to weed out nonmeritorious actions on the basis of the pleadings. (See Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 838.) Minimally, a fraud cause of action must “allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” (Lazar v. Super. Ct. (Rykoff-Sexton, Inc.) (1996) 12 Cal. 4th 631, 645; see also Tenet Healthsystem Desert, supra, 245 Cal.App.4th at p.838 (stating same).) It is clear that the fifth cause of action is not pled with sufficient particularity as it does not allege when the misrepresentation occurred. Accordingly, the demurrer to the fifth cause of action is SUSTAINED with 10 days leave to amend after notice of the signed order.

In light of the above ruling, the motion to strike portions of the FAC is MOOT.

The Court will prepare the Order.