Tarek Suleimanagich v. Laura Grace Dewey
Case No: 19CV01842
Hearing Date: Tue Jun 04, 2019 9:30

Nature of Proceedings: Demurrer/Motion to Strike

Demurrer/motion to strike

ATTORNEYS:

Both parties are self-represented

RULING: For the reasons which will be explained below, the demurrer is sustained as to the first cause of action for professional negligence, with leave to file an amended complaint on or before June 25, 2019, and the demurrer is overruled as to the unfair business practices and fraud causes of action. The motion to strike is denied as improperly made. The sanction request is denied.

Background

Plaintiff’s complaint, filed April 8, 2019, alleges causes of action for professional negligence, unfair business practices, and fraud, arising from defendant Dewey’s brief representation of plaintiff in a family law matter involving issues of child custody, support, and visitation. Plaintiff alleges that Dewey performed very little work of value, other than reviewing the file, making phone calls, preparing a few e-mails and correspondence, and a court appearance. He alleges that she excessively overcharged him, and negligently failed to take appropriate steps to secure favorable custody or visitation of one of his children, and he was forced to hire competent attorneys to clean up her negligence. He found out during her representation that she had a history of overcharging clients and doing minimal, substandard work, and alleges that he never got his complete file from Dewey, and that which he did receive was “in shambles.” He also discovered she was temporarily suspended for failing to pay bar dues. He alleges that he discovered, on December 12, 2018 and March 25, 2019, that Dewey committed malpractice by discussing privileged and confidential communications with recently deceased Woodland Hills attorney Marcia Kraft, and falsely claimed in verified discovery responses on those dates that Kraft represented plaintiff and was his attorney of record at some point in his family law case. He alleges he never authorized Dewey to discuss his case with Kraft or any attorneys with her firm.

Plaintiff expressly alleges that Dewey committed malpractice by (a) failing to promptly return his file, (b) overbilling, (c) failing to inform him of attorney Kraft’s involvement in his case, (d) failing to advise him that her physical and mental impairments would not allow her to properly represent him in the family law case; (e) charging fees which did not advance his case, (f) not disclosing in the retainer whether she carried professional liability insurance, (g) not adequately reviewing the file to protect plaintiff’s rights, (h) failing to properly account for fees and costs, (i) failing to properly credit to plaintiff money for her use and occupation of property in Bel Air, and failing to compensate him for property damage contrary to representations that she would do so, and (j) breaching “other ethical and professional responsibilities and obligations” toward him.

The unfair business practices cause of action is based upon Dewey’s alleged conduct in submitting false and fraudulent information to falsely claim that Marcia Kraft had been an attorney of record in his family law case, and discussing his case with attorney Kraft, and seeks general and punitive damages. The fraud cause of action is based upon Dewey’s verified discovery responses in Case No. 17CV03571 (Dewey v. Suleimanagich) stating that the Law Office of Marcia Kraft had taken over his family law case, which Dewey knew were false. He generically alleges Dewey’s intent that he rely upon the representations, and his reasonable reliance resulting in harm. The fraud claim seeks compensatory and punitive damages.

Dewey has demurred to the complaint, improperly including in the demurrer document a request to strike the entire complaint. Dewey contends that the complaint is barred by the statute of limitations set forth in Code of Civil Procedure section 340.6, that the claims should have been brought as a compulsory cross-complaint in her separate action to collect from plaintiff unpaid fees which she was owed; that the complaint is uncertain in failing to identify acts constituting malpractice and in referring to a different defendant named Brenner; and fails to identify the duty, standard of care, and way in which the standard of care was violated. She summarily states that “for the reasons stated above,” the demurrer should not only be sustained, but the complaint should be stricken. Finally, she seeks sanctions of $435 to cover the filing fee incurred in being forced to respond to the complaint. No statutory basis for imposition of fees is stated.

Plaintiff has opposed the demurrer.

ANALYSIS

For the reasons which will be explained below, the demurrer is sustained as to the first cause of action for professional negligence, with leave to file an amended complaint on or before June 25, 2019, and the demurrer is overruled as to the unfair business practices and fraud causes of action. The motion to strike is denied as improperly made. The sanction request is denied.

The Court’s task in ruling on a demurrer is to determine whether the complaint states a cause of action. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer admits the truth of all material facts properly pleaded (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967), no matter how unlikely or improbable they may be (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604), or how unlikely it will be that plaintiff will be able to prove the claim (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214). The Court also assumes the truth of all reasonable inferences that may be drawn from the properly pleaded facts. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083.) The assumption of truth does not apply, however, to contentions, deductions, or conclusions of law or fact. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters, and therefore lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.)

Where a demurrer is made upon this ground, it must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears (by reference to page and line numbers of the complaint). (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809; disapproved on other grounds in Katzberg v. Regents of Univ. of Calif. (2002) 29 C4th 300, 328, 127 CR2d 482, 504, fn. 30.)] A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)

Defendant has demurred to the complaint, asserting a variety of claims, many of which are unsupported by any authority or analysis.

1. Demurrer for uncertainty.

The Court overrules the demurrer, to the extent it is based upon uncertainty. The demurrer does not specify exactly how or why the complaint is uncertain, and does not specify (by page and line number) where the uncertainty appears. Further, while not a model pleading, the complaint is not so bad that defendant cannot reasonably respond to its allegations. The allegations are adequate to allow defendant to reasonably determine what issues must be admitted or denied.

2. Compulsory cross-complaint.

Dewey asserts a demurrer to the entire complaint, on the basis that it cannot stand because the claims it asserts should have been asserted in a compulsory cross-complaint in her action to collect fees. The Court notes that the sole grounds upon which a demurrer can be made are set forth in Code of Civil Procedure section 430.10. It is not clear from the demurrer which of the bases Dewey believes is implicated by her argument. More importantly, however, regardless of the specific basis for the demurrer, there is no legal basis upon which the Court could sustain such a demurrer, on the information which is currently properly before it.

As noted above, a demurrer challenges only defects which appear on the face of the complaint, or which appear from matters judicially noticed. The complaint itself mentions Case No. 17CV03571 only in its allegation that Dewey made representations about attorney Kraft taking over the family law case, in verified responses to written discovery. (Complaint @ ¶ 22.) The nature of that case is never alleged in the complaint, such that there would be any basis from the face of the complaint to ascertain that the current action should have been brought as a compulsory cross-complaint in that action. Further, Dewey has not requested judicial notice of any part of the purported collections case, apparently pending in a different department of this court, and of which this department has no knowledge. Because no information supporting Dewey’s contention that this action is barred because it should have been brought as a compulsory cross-complaint in her collections action is properly before the Court on demurrer, the demurrer made on this basis must be overruled.

3. Failure to state a cause of action.

A. Elements of causes of action.

The complaint alleges three causes of action. Dewey’s argument in support of the purported general demurrer that the complaint fails to state facts sufficient to maintain a cause of action consists of two sentences, no citations of authority, and no analysis of the allegations. She simply contends—in a single sentence—that the complaint fails to identify the duty, standard of care, and the way in which the standard of care was violated. Even if that were sufficient for the professional negligence cause of action—which it is not—the demurrer completely fails to address the causes of action for fraud and for unfair business practices. To the extent the demurrer is based upon the contention that the complaint fails to allege facts sufficient to state a cause of action, it fails to meet its burden of showing that the complaint or any of its alleged causes of action are insufficient, and must necessarily be overruled.

B. Statute of limitations.

Dewey contends that the action is barred by the statute of limitations set forth in Code of Civil Procedure section 340.6.

Section 340.6(a) provides:

(a) 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. If the plaintiff is required to establish his or her factual innocence for an underlying criminal charge as an element of his or her claim, the action shall be commenced within two years after the plaintiff achieves postconviction exoneration in the form of a final judicial disposition of the criminal case. Except for a claim for which the plaintiff is required to establish his or her factual innocence, in no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist:

(1) The plaintiff has not sustained actual injury.

(2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.

(3) The attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney, except that this subdivision shall toll only the four-year limitation.

(4) The plaintiff is under a legal or physical disability which restricts the plaintiff’s ability to commence legal action.

The Court notes that Section 340.6(a) applies to claims against an attorney for a wrongful act or omission which arise in the performance of professional services. This has been construed as applying to more than legal malpractice actions, and broadly includes any claim alleging an attorney’s violation of his or her professional obligations while providing professional services, regardless of how those claims were styled. (Lee v. Hanley (2015) 61 Cal.4th 1226, 1235.) For these purposes, a “professional obligation” is an obligation a lawyer has by virtue of being a lawyer, e.g., the duty to perform competently, fiduciary obligations, the responsibility to perform the services contemplated in the legal services contract, and the duties embodied in the California Rules of Professional Conduct. (Id., at p. 1237.) However, such a claim does not require proof that the attorney violated a professional obligation, and it applies to wrongful conduct arising in the performance of legal services, and therefore can include performance of nonlegal services governed by an attorney’s professional obligations. (Id.)

If a complaint alleges facts establishing a defense to the claim, such as a statute of limitations defense, the plaintiff must allege sufficient specific facts to “plead around” and avoid that defense. (See Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 174-175.) Absent such allegations, the complaint is subject to demurrer for failure to state a cause of action. (Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 825.) The grounds for tolling of the statute which are set forth in Section 340.6 are exclusive—in no event shall the limitations period be tolled except as provided in the statute. (Laird v. Blacker (1992) 2 Cal.4th 606, 618.)

With respect to plaintiff’s cause of action for professional negligence, the complaint alleges that Dewey briefly represented him in a family law matter in 2013, and that her conduct was deficient in a manner that required him to hire subsequent counsel to “clean up” her professional negligence, and that such attorneys were able to obtain a favorable result for him. He specifically alleges deficiencies in her performance in representing him, in billing him, in failing to advise him of personal reasons she would not be able to properly represent him, in failing to promptly return the entire client file to him, in not disclosing in the retainer whether she carried professional liability insurance, and similar claims. (Complaint @ ¶ 10.) His professional negligence cause of action then alleges that on or about March 25, 2019, Dewey breached the duty of care owed to plaintiff “as herein alleged and described.” (Complaint @ ¶ 14.) However, the complaint contains no specific factual allegations to overcome the application of the statute of limitations, or to explain how or why anything that occurred on March 25, 2019, could possibly have rendered timely allegations of misconduct which occurred in 2013.

As a result, the demurrer to the professional negligence cause of action must be sustained on the ground that it is barred on its face by the statute of limitations set forth in Code of Civil Procedure section 340.6. However, since this is plaintiff’s first attempt to plead such a cause of action, and since this Court has no information as to whether plaintiff could truthfully allege specific facts sufficient to bring the action within any of the tolling provisions set forth in Section 340.6, the Court will allow plaintiff leave to file an amended complaint in which to attempt to do so. Should plaintiff opt to file an amended complaint, he should do so on or before June 25, 2019.

With respect to the fraud cause of action, the Court notes that, by its express terms, Section 340.6(a) does not apply to causes of action for actual fraud. In this case, plaintiff alleges a cause of action for fraud against defendant Dewey. The demurrer does not allege any other statutory limitation that might apply to the fraud cause of action, and the fraud allegations in the complaint appear to be based upon representations purportedly made by Dewey in December 2018, in verified responses to discovery. The claim therefore appears to be based upon conduct which occurred within the last year, and would not likely be barred by any statutory limitation period.

Additionally, as noted above, the demurrer contains no discussion of the complaint’s fraud allegations or the elements of a fraud claim, and cites no authorities that could legally allow the Court to evaluate the viability of the fraud cause of action. Certainly, the Court sees significant problems with the fraud cause of action, but without the problems being presented to it in a proper manner, through identification of the defects and discussion of the elements of such a claim in the demurrer, accompanied by citation to authorities establishing its invalidity, the Court has no legal ability to address any such defects in the context of Dewey’s current demurrer. Consequently, because Section 340.6(a) expressly excepts causes of action for actual fraud from its terms, because Dewey’s demurrer has raised no other statutory limitation period applicable to the claim, and because the demurrer does not establish the invalidity of the fraud claim, the demurrer to the fraud cause of action must be overruled.

With respect to plaintiff’s cause of action for unfair business practices, the Court notes that the factual basis for plaintiff’s claim is that defendant committed unfair, unlawful, and fraudulent business practices by perjuring herself and submitting false and fraudulent information in verified discovery responses to plaintiff, including falsely claiming that attorney Marcia Kraft was an attorney of record in his family law case. In other words, the claim is based upon conduct by Dewey which was not committed in the course of her representation of plaintiff, but rather in providing verified discovery responses to him within the last year in more recent litigation. Consequently, the cause of action does not fall within the terms of Section 340.6, and is not barred thereby. No other statutory limitation period is alleged, and in any event the facts upon which the claim is based appear to have occurred within the last year and would not likely be barred by any statutory limitation period.

Further, much as was true with the fraud cause of action, the Court sees significant problems with the unfair business practices cause of action. However, without the problems being properly articulated as a basis for demurrer, and properly supported by analysis and citation to authorities establishing the claim’s invalidity, the Court has no legal ability to address any such defects in the context of the current demurrer. Because the demurrer does not establish either that the unfair business practices cause of action is legally invalid or is barred by any applicable limitation period, the demurrer to the cause of action must be overruled.

4. Motion to strike.

Dewey’s demurrer also includes a purported “motion to strike,” the entire substance of which is the sentence: “For the reasons stated above, the Demurrer should be sustained and the Complaint should be stricken.” The motion was improper and invalid, and will be denied.

Motions to strike and demurrers are separate procedures, and should be filed as separate documents although, if both are filed, they must be heard concurrently. (Cal. Rules of Court, rule 3.1322, subd. (b).) Motions to strike are used to reach defects in or objections to pleadings that are not challengeable by demurrer. A motion lies either to strike any “irrelevant, false or improper matter inserted in any pleading”, or to strike any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.) The latter provision authorizes the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed. (Ferraro v. Carmarlinghi (2008) 161 Cal.App.4th 509, 528.) Failure to state facts sufficient to state a cause of action is ground for general demurrer, but is not a proper basis for a Section 436 motion to strike. (Id. at p. 529.) As with demurrers, the grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice. (Code Civ. Proc., § 437.)

The document filed by Dewey did not include a notice of motion to strike, and did not articulate or present in any way any matter for which a motion to strike was proper. The motion must therefore be denied as invalid.

5. Sanctions

Dewey’s demurrer/motion to strike sought sanctions from plaintiff, in the amount of the filing fee she was required to pay when responding to the complaint. No statutory basis for a sanction award is set forth in the demurrer. Because her demurrer/motion to strike did not legally establish the invalidity of the complaint or its allegations, the Court finds no basis for any sanction award, and will deny the request.