2013-00156878-CU-PN

Rachel Sanchez vs. Rando Rodriguez

Nature of Proceeding:      Motion to Strike

Filed By:   Strong, Alissa J.

Defendants Rando Rodriguez, John S. Sargetis and United Law Center’s (collectively
“Defendants”) motion to strike Plaintiff’s complaint is ruled upon as follows.

Defendants’ request for judicial notice is granted.  In taking judicial notice of these
documents, the court accepts the fact of their existence, not the truth of their contents.
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(See Professional Engineers v. Dep’t of Transp. (1997) 15 Cal.4   543, 590 [judicial
notice of findings of fact does not mean that those findings of fact are true]; Steed v.
Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121.)

This is a legal malpractice action against Plaintiff’s former attorneys in connection with
an underlying medical malpractice lawsuit against Dr. Guida.  The complaint alleges
the following. In the middle of 2010, she retained co-defendant Mayall Hurley
(“Mayall”) to represent her in the medical malpractice action.  (Complaint, para. 9.)
Mayall assigned the case to Rando Rodriguez (“Rodriguez”).  (Id. para. 10.)  In middle
of 2012, Mayall terminated Rodriguez for cause, but allowed Rodriguez to take
Plaintiff’s case with him.  (Id. para. 14.) Rodriguez did not have malpractice insurance
in violation of Cal. Rules of Professional Conduct 3-410.  (Id. para. 14.)  In violation of
B&P Code section 6147, Rodriguez did not execute a new written contingent fee
agreement with Plaintiff.  (Id. para. 15.)
In late 2012, Rodriguez informed Plaintiff that he lacked funds to retain expert
witnesses or to try her case and recommended that she consult another attorney.  (Id.
para. 16.)  Rodriguez did not file a motion to withdraw.  (Id.)  Rodriguez became an
employee of The United Law Center, which thereafter represented Plaintiff in the
medical malpractice claim.  (Id. para. 17.)  Rodriguez settled the medical malpractice
complaint, without Plaintiff’s consent.  (Id. para. 19.)  The settlement provided that
each party would bear their own fees and costs.  (Id.) Plaintiff did not recover any
monetary award or other compensation.  (Id.)

The complaint alleges that following causes of action against Defendants: (1)
Professional Negligence, and (2) Breach of Fiduciary Duty.

Defendants move to strike allegations related to the following: (1) request for attorneys’
fees, (2) request for punitive damages, and (3) Rodriguez’s violation of the State Bar
Act and Rules of Professional Conduct.

Attorneys’ Fees

Defendants move to strike Plaintiff’s request for attorneys’ fees on the grounds that the
complaint fails to provide a statutory or contractual basis for attorneys’ fees.
Defendant further argues that pursuant to Jordache Enterprises, Inc. v. Brobeck,
Phleger & Harrison (1998) 18 Cal.4th 739, plaintiff is not entitled to attorneys’ fees
incurred in prosecuting the instant action.

In opposition to the motion, Plaintiff argues that she has alleged a contract with
Mayhall and the complaint includes a breach of contract cause of action.  She argues
that at this time, she does not have a copy of her fee agreement with Defendants, but
that it is proper for her to reserve her right to recover attorneys’ fees.

The motion to strike attorneys’ fees against Defendants is GRANTED with leave to
amend. Although Plaintiff has alleged a written contract with Mayhall, she has not
alleged a written contract with an attorneys’ fees provision with Defendants. The
request for attorneys’ fees against Mayhall remains.

Punitive Damages

Defendants argue that Plaintiff fails to allege facts demonstrating any basis for punitive
damages, specifically, that Plaintiff’s allegations are conclusory and merely based in
negligence. Defendants further argue that Plaintiff fails to allege facts to support her
allegations that Defendants’ conduct was
oppressive, malicious or fraudulent.

In opposition, Plaintiff argues that she has specifically alleged oppressive, malicious or
fraudulent conduct.  Plaintiff alleges that Rodriguez informed Dr. Guida’s counsel, that
Defendants wanted to withdraw from representing Plaintiff, thus impairing Plaintiff’s
ability to obtain a monetary settlement from Dr. Guida.  (Complaint, para. 18.)
Rodriguez settled the medical malpractice complaint, without Plaintiff’s consent
because Defendants had not adequately prepared Plaintiff’ case for trial and did not
want to advance funds to retain expert witnesses.  (Id. para. 19.)  Defendants acts
were done with a willful and intentional disregard for the rights of Plaintiff and a breach
of their fiduciary duties.  (Id. paras. 30, 32.)

The motion is DENIED.  At this stage of the proceedings, these allegations are
sufficient.

Violation of the State Bar Act and Rules of Professional Conduct.

Defendants move to strike allegations related to Rodriguez’s violation of the State Bar
Act and Rules of Professional Liability on the grounds that liability is improper unless
the rule or statute specifically provides such a right.  According to Defendants, these
allegations must be stricken because they are irrelevant and improper.

In opposition to the motion, Plaintiff argues that she is not basing her claim upon
violation of the State Bar Act or Rules of Professional Conduct.  Rather, these are
factual allegations to provide background against which the malpractice occurred.

The motion is DENIED.  “We emphasize that such use of the motion to strike should
be cautious and sparing. We have no
intention of creating a procedural ‘line item veto’ for the civil defendant.” (PH II, Inc. v.
Superior Court (1995) 33 Cal. App. 4th 1680, 1683.)
Where leave to amend is granted, Plaintiff may file and serve a first amended
complaint (“FAC”) by no later than May 8, 2014, Response to be filed and served
within 10 days thereafter, 15 days if the FAC is served by mail. (Although not required
by any statute or rule of court, Plaintiff is requested to attach a copy of the instant
minute order to the FAC to facilitate the filing of the pleading.)

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.

2013-00156878-CU-PN

Rachel Sanchez vs. Rando Rodriguez

Nature of Proceeding:      Hearing on Demurrer

Filed By:   Abbott, J. Anthony

***  If oral argument is requested, the parties must at the time oral argument is
requested notify the clerk and opposing counsel of the causes of action that will
be addressed at the hearing.  Counsel are also reminded that pursuant to local
court rules, only limited oral argument is permitted on law and motion matters.
***

Defendant Mayall Hurley’s demurrer to Plaintiff Rachel Sanchez’s complaint is ruled
upon as follows.

Defendant’s request for judicial notice is granted.  In taking judicial notice of these
documents, the court accepts the fact of their existence, not the truth of their contents.
th
(See Professional Engineers v. Dep’t of Transp. (1997) 15 Cal.4   543, 590 [judicial
notice of findings of fact does not mean that those findings of fact are true]; Steed v.
Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121.)

This is a legal malpractice action against Plaintiff’s former attorneys in connection with
an underlying medical malpractice lawsuit against Dr. Guida.  The complaint alleges
the following. In the middle of 2010, she retained Defendant to represent her in the
medical malpractice action.  (Complaint, para. 9.)  Defendant assigned the case to
Rando Rodriguez (“Rodriguez”).  (Id. para. 10.)  Rodriguez lacked the skill, expertise,
and financial means to handle the medical malpractice action.  (Id.)  Defendant served
Dr. Guida with a CCP section 998 offer for $250,000 without Plaintiff’s consent. (Id.
para. 12.)  Defendant failed to adequately prepare Plaintiff’s case for trial.  (Id. para.
14.)  In middle of 2012, Defendant terminated Rodriguez for cause, but allowed
Rodriguez to take Plaintiff’s case with him.  (Id. para. 14.)  Defendant violated Cal.
Rule of Prof. Conduct 3-410 by failing to disclose to Plaintiff the risks of allowing
Rodriguez to substitute in as Plaintiff’s attorney. (Id.)  In late 2012, Rodriguez informed
Plaintiff that he lacked funds to retain expert witnesses or to try her case and
recommended that she consult another attorney.  (Id. para. 16.)  Rodriguez did not file  a motion to withdraw.  (Id.)  Rodriguez became an employee of The United Law
Center, which thereafter represented Plaintiff in the medical malpractice claim.  (Id.
para. 17.)  Rodriguez settled the medical malpractice complaint, without Plaintiff’s
consent.  (Id. para. 19.)  The settlement provided that each party would bear their own
fees and costs.  (Id.) Plaintiff did not recover any monetary award or other
compensation.  (Id.)

The complaint alleges that following causes of action: (1) Professional Negligence, (2)
Breach of Fiduciary Duty, and (3) Breach of Contract.

Professional Negligence

Defendant demurs on the grounds that Plaintiff fails to plead actionable malpractice
during Rodriguez’s employment with the firm.  Specifically, Defendant argues that no
specific act or omission that occurred during Rodriguez’s employment is alleged
except for the CCP section 998 offer.  Defendant argues that the offer cannot
constitute actionable malpractice because it was never accepted and thus, could not
have caused “actual loss or damage.”

The complaint, however, additionally alleges that Defendant: (1) failed to prepare the
case for trial, (2) failed to advance sufficient funds to retain expert witnesses, and (3)
failed to advise Plaintiff that most of the discovery and trial preparation and expenses
had not yet been completed or invested, even though trial was less than five months
away.  The complaint further alleges that as a proximate result of Defendant’s wrongful
conduct, Plaintiff was caused to forfeit her entire claim for no practical consideration.

Taking these allegations as true, and at this stage of the proceedings, these
allegations are sufficient.  Accordingly, the demurrer is OVERRULED.

Breach of Fiduciary Duty

Defendant demurs to this cause of action on the grounds that Plaintiff has failed to
plead that Defendant violated its fiduciary duty to Plaintiff.

The Court disagrees.  As discussed above, Plaintiff has alleged various breaches and
that those breaches caused her to forfeit her entire claim.

Taking these allegations as true, and at this stage of the proceedings, these
allegations are sufficient.  Accordingly, the demurrer is OVERRULED.

Breach of Contract

Defendant demurs to this cause of action on the grounds that its contract with Plaintiff
terminated no later than July 9, 2012, when the substitution of attorney was filed.
According to Defendant, no harm or damage occurring prior to termination has been
pled, and that once the contract terminated, it did not have a contract-based obligation
to provide Plaintiff with legal services.

The Court disagrees.  As discussed above, Plaintiff has alleged various breaches and
that those breaches caused her to forfeit her entire claim.

Taking these allegations as true, and at this stage of the proceedings, these
allegations are sufficient.  Accordingly, the demurrer is OVERRULED.

Damages

Defendant demurs on the grounds that Plaintiff will be unable to prove that but for the
alleged malpractice, settlement of the underlying litigation would have resulted in a
better outcome.  (Filbin v. Fitzgerald (2012) 211 Cal. App. 4th 154, 166 [a plaintiff who
alleges an inadequate settlement in the underlying action must prove that, if not for the
malpractice, she would certainly have received more money in settlement or at trial.]
[emphasis in original].)

Filbin, however, is inapposite as it did not deal with a challenge to the pleadings but
rather factual determinations at trial.

Accordingly, the demurrer is OVERRULED on this ground.

Given that the Court has overruled the demurrer, Defendant would ordinarily be
required to file an answer to the complaint. However, because the Court has granted
with leave to amend Rando Rodriguez, John S. Sargetis and United Law Center’s
motion to strike and Plaintiff may file/serve a first amended complaint by May 8, 2014,
Defendant need not file an answer to the original complaint at this time. In the event
Plaintiff does not file and serve a first amended complaint by May 8, 2014, Defendant
shall file and serve an answer to the original complaint by May 19, 2014.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.

The notice of motion does not provide notice of the Court’s tentative ruling system, as
required by Local Rule 1.06(A).  Defendant’s counsel is directed to contact Plaintiff’s
counsel forthwith and advise counsel of Local Rule 1.06 and the Court’s tentative
ruling procedure.  If Defendant’s counsel is unable to contact Plaintiff’s counsel prior to
hearing, Defendant’s counsel shall be available at the hearing, in person or by
telephone, in the event opposing party appears without following the procedures set
forth in Local Rule 1.06(A).