Case Number: BC536591 Hearing Date: June 16, 2014 Dept: 58

JUDGE ROLF M. TREU
DEPARTMENT 58
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Hearing Date: Monday, June 16, 2014
Calendar No: 7
Case Name: Vaillancourt v. Sizemore Law Firm, et al.
Case No.: BC536591
Motion: (1) Demurrer and Motion to Strike
(2) Motion to Strike
Moving Party: (1) Defendants Sizemore Law Firm and J. Paul Sizemore
(2) Defendants Burke, Harvey, LLP (erroneously sued as Burke, Harvey & Frankowski, LLP) and Camille Edwards
Responding Party: Plaintiff Samantha Vaillancourt
Notice: OK

Tentative Ruling: Demurrer is overruled. Motions to strike are granted as to Plaintiff’s claim for punitive damages with 15 days leave to amend, and is otherwise denied.
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On 2/14/14, Plaintiff Samantha Vaillancourt filed this action against Defendants Sizemore Law Firm and J. Paul Sizemore (collectively “Sizemore Attorneys”) and Burke, Harvey & Frankowski and Camille Edwards (collectively “Burke Harvey Attorneys”) arising out of the provision of attorney services. Plaintiff asserts causes of action for (1) legal malpractice and (2) breach of fiduciary duty. Sizemore Attorneys have filed a demurrer to the 2nd COA and a motion to strike. Burke Harvey Attorneys have filed a motion to strike.

Factual Allegations of the Complaint –
Plaintiff was an accomplished athlete who underwent surgeries in 2003 after which pain pumps were used post-operatively. ¶ 11. However, pain pumps were recognized as potentially causing serious health problems including post-arthroscopic glenohumeral chondrolysis (“PAGCL”). ¶¶ 9-10. In Fall of 2007, Plaintiff was diagnosed with PAGCL. ¶ 12.

Plaintiff retained Burke Harvey Attorneys in late 2007 or early 2008 to handle a product liability claim arising out of the use of the pain pumps. ¶¶ 8, 14. In 2009, Edwards told Plaintiff that Sizemore Attorneys were being associated due to their expertise for pain pumps manufactured by I-Flow, Inc. which Burke Harvey Attorneys claimed to have identified as the manufacturer of Plaintiff’s pain pumps: Plaintiff was not informed that Burke Harvey Attorneys and Sizemore Attorneys had agreed to share any fee recovered. ¶ 15. On 6/23/10, Sizemore Attorneys filed an action against I-Flow on behalf of Plaintiff and other individuals; however, Plaintiff was not provided a conflict of interest disclosure. ¶ 16. On 7/1/10, an amended complaint was filed that added an additional plaintiff: Plaintiff was not told of the filing of the amended complaint and was not provided a conflict of interest disclosure. ¶ 17.

On 10/20/11, Defendants were advised by I-Flow’s attorneys that they had likely sued the wrong manufacturer as to Plaintiff; Defendants then spoke with Plaintiff and conducted an investigation and determined in 2012 that Plaintiff’s pain pumps were manufactured by McKinley Medical Products which had by then been acquired by The Broe Company; and Sizemore Attorneys amended Plaintiff’s complaint to add McKinley and Broe. ¶ 20.

By August 2012, Defendants told Plaintiff that there was little or no chance of recovering significant damages from Broe and advised accepting a $30,000 settlement: Plaintiff accepted the settlement based on this advice. ¶ 21.

Demurrer –
Sizemore Attorneys argue that professional negligence alone is insufficient to support a breach of fiduciary duty. However, Sizemore Attorneys rely on Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086, which does not stand for the principle put forth by Sizemore Attorneys. Stanley only acknowledged that breach of fiduciary duty is a distinct claim from professional negligence; and stated that the scope of an attorney’s fiduciary duty may be determined based on the Rules of Professional Conduct and statutes and general principles relating to other fiduciary relationships. Stanley, 35 Cal.App.4th at 1086-87.

That an attorney’s breach of fiduciary duty may include circumstances such as conflicts of interest (see, e.g., Tri-Growth Centre City, Ltd. v. Silldorf, Burdman, Duignan & Eisenberg (1989) 216 Cal.App.3d 1139, 1151) does not mean that these circumstances are exclusive.

Plaintiff alleges that Sizemore Attorneys failed to disclose or explain conflicts of interest arising from other plaintiffs, failed to disclose their financial interest in Plaintiff’s action and that Burke Harvey Defendants were not going to remain active co-counsel, failed to disclose their negligent failure to properly identify the correct manufacturer, failed to disclose that they turned Plaintiff’s case to an inexperienced attorney, and failed to disclose that they were essentially abandoning Plaintiff’s case because it was too much work for them. Complaint ¶ 31(a), (c)-(f). At the pleading stage, this is sufficient to support a breach of fiduciary duty claim. Therefore, the demurrer is overruled.

Motions to Strike –

1. Punitive Damages
Defendants’ motions to strike raise substantively identical issues with respect to punitive damages. Defendants argue that Plaintiff fails to allege facts supporting malice, fraud, or oppression. The Court agrees. Plaintiff fails to allege any facts to support malice or oppression. See, e.g., Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715-16. Although Plaintiff correctly notes that breach of fiduciary duty constitutes constructive fraud, mere negligence and constructive fraud are insufficient to support punitive damages. Palmer v. Ted Stevens Honda, Inc. (1987) 193 Cal.App.3d 530, 536. Therefore, the motions to strike are granted as to Plaintiff’s claim for punitive damages.

2. Emotional Distress and Physical Injury
Burke Harvey Attorneys also move to strike Plaintiff’s claims for emotional distress or physical injury. Burke Harvey Attorneys correctly note that these claims are not recoverable in ordinary attorney malpractice cases. See, e.g., Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1038-40; Merenda v. Superior Court (1992) 3 Cal.App.4th 1, 10 (disapproved of on other grounds in Ferguson v. Lieff, Cabraser, heimann & Bernstein (2003) 30 Cal.4th 1037, 1053). However, Plaintiff’s Complaint does not reveal that she is seeking such damages at the pleading stage. Cf. Complaint ¶¶ 33-35 (alleging only general, special and consequential damages). Therefore, Burke Harvey Attorneys’ motion to strike is otherwise denied.

Leave to Amend –
Plaintiff has requested leave to amend. Because this is the first challenge to the pleadings, leave to amend is granted.