Tarek Suleimanagich vs Cherie Brenner
Case No: 18CV02147
Hearing Date: Wed Oct 17, 2018 9:30

Nature of Proceedings: Demurrer and Motion for Sanctions; Case Management Conference

TENTATIVE RULING: For reasons which will be explained below, the demurrer is overruled in its entirety.

For reasons which will be explained below, the motion for sanctions is also denied.

Background: On April 27, 2018, plaintiff Tarek Suleimanagich filed a complaint for legal malpractice and unjust enrichment against defendant Cherie Brenner in Los Angeles Superior Court. On Brenner’s motion, the case was transferred to this court.

The original complaint alleged causes of action for malpractice and unjust enrichment. It alleged that plaintiff had retained defendant on December 19, 2015, to represent him in Case No. 1189545 (Jerge v. Suleimanagich), with respect to child custody, support, and visitation matters. Her representation of him was brief, she did little of value for him, and he believed she overcharged him. He contended that her services were also substandard because she failed to prepare a motion pursuant to Code of Civil Procedures section 664.6 to enforce a settlement related to custody and visitation issues with his minor child. Plaintiff alleged that he discovered defendant was not well-versed in family law, was incapable of writing basic motions, and had lied about her age, experience, and educational background. When he indicated he wished to terminate her services, she procrastinated in turning over his file. Upon withdrawing on April 15, 2016, she made comments on the record which unfairly prejudiced plaintiff. She padded her bills, and fraudulently charged $15,000 on his credit card for fees and costs. Although he disputed the charge, American Express allowed it to go through, advising him that he could seek recourse against defendant.

In response to defendant’s demurrer to the original complaint, the Court (1) overruled the demurrer made to the complaint as a whole on uncertainty grounds, (2) sustained the general demurrer to the professional negligence cause of action, with leave to amend, based upon plaintiff’s failure to allege that he would have achieved a more favorable result absent defendant’s negligent acts, and based upon the lack of any allegations with respect to how defendant’s overcharging for services, failure to promptly substitute out and return the client file, or misrepresentation of her educational background, age, and experience in family law caused actual loss resulting from the negligence, and (3) sustained the general demurrer to the unjust enrichment cause of action, but allowed leave to amend because it was not clear that plaintiff could not state a theory of recovery in contract, quasi-contract or otherwise related to the credit card charge.

Plaintiff filed his First Amended Complaint (FAC) on July 23, 2018. The FAC states causes of action for (1) professional negligence, (2) unlawful, fraudulent and unfair business practices, and (3) fraud. The FAC added allegations that, in addition to failing to file the motion to enforce settlement, defendant failed to take any other appropriate steps to secure a favorable custody and/or visitation result for him concerning his child, although he had specifically asked her to do so. Following her representation, plaintiff retained other counsel who effectively obtained the favorable visitation or custody result for him, including obtaining visitation which had been denied for several years, a favorable child support arrangement, denial of attorneys’ fees sought by his child’s mother, and having a biased judge replaced with a fair one. Plaintiff further added allegations that defendant’s professional negligence included not disclosing in the retainer agreement whether she had professional liability insurance, additional allegations regarding fraudulent overbilling, including for services after she substituted out and for services in excess of the amount she had told him would be charged for review of his file, and advising plaintiff’s subsequent counsel that she was not capable of drafting a motion to enforce settlement.

The cause of action for unfair, unlawful, or fraudulent business practices seeks restitution of the $15,000 that plaintiff contends she wrongfully charged to his credit card for fees that she did not earn. He alleges further that defendant’s wrongful conduct was done with malice, oppression, and fraud, entitling him to an award of punitive damages.

The fraud cause of action alleges that defendant misrepresented that (1) she would review plaintiff’s family law file for a flat fee of $2,500, (2) she would promptly file a Section 664.6 motion to enforce settlement in the family law case, (3) she would reasonably, fairly, effectively, economically, and competently represent his interests in the family law case, (4) she would bill him fairly and would not overcharge him, and (5) she would promptly, effectively, and competently move for family law orders to allow him a fair and equitable custody and/or visitation arrangement with his child. Defendant knew those representations were false when she made them, or she made them in reckless disregard for the truth. She knew she was inexperienced and incompetent in family law matters, with substandard writing skills, wished to charge him to support her lifestyle and had no intention of doing any work for him that would result in favorable support, visitation, or custody. She has a reputation for being professionally negligent and overbilling clients. She intended that he rely upon the misrepresentation, and he reasonably relied upon her, suffering harm. The cause of action contains a punitive damage claim.

Demurrer: Defendant demurs generally demurs to each cause of action, and specially demurs to the unfair business practices cause of action on grounds of uncertainty. Defendant seeks judicial notice of (a) a November 15, 2016 Statement of Decision / Orders and Findings, issued in Case No. 1187545; and (b) the April 15, 2016 minute order granting defendant’s motion to be relieved as counsel in Case No. 1187545.

Sanctions motion: Defendant seeks sanctions against plaintiff pursuant to Code of Civil Procedure section 128.7, in the amount of $1772.

Plaintiff has opposed both the demurrer and the motion for sanctions.

No reply documents were filed with respect to either motion.

ANALYSIS: Demurrer For reasons that will be articulated below, the demurrer is overruled in its entirety.

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.)

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 CA4th 612, 616.)

The Court notes that defendant’s demurrer contains a tremendous amount of information that is neither found on the face of the FAC, nor in any of the documents of which judicial notice has been sought and taken. None of that information is properly before the Court, and it has been disregarded by the Court in ascertaining whether plaintiff’s complaint is sufficient to withstand defendant’s demurrer.

1. Judicial Notice.

For purposes of the demurrer, defendant seeks judicial notice of (a) a November 15, 2016 Statement of Decision / Orders and Findings, issued in Case No. 1187545; and (b) the April 15, 2016 minute order granting defendant’s motion to be relieved as counsel in Case No. 1187545.

“Evidence Code sections 452 and 453 permit the trial court to ‘take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached – in the documents such as orders, statements of decision, and judgments – but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.’” (People v. Woodell (1998) 17 Cal.4th 448, 455.)

The court can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments. (Day v. Sharp (1975) 50 Cal.App.3d 904, 914.) The court may take judicial notice of any orders, findings of facts and conclusions of law, and judgments within court records. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.)

The Court will take judicial notice of the documents.

2. Professional negligence.

As was noted in the Court’s ruling on the previous demurrer, the elements of a legal malpractice action arising from a civil proceeding include (1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney’s negligence. (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.) In addition to establishing malpractice on the part of an attorney in prosecuting or defending a lawsuit, a plaintiff must also prove that careful management of it would have resulted in recovery of a favorable judgment and collection of same.” (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 832.) This is known as “a trial-within-a-trial.” (Id.) Courts deny recovery in legal malpractice cases “where the unfavorable outcome was likely to occur anyway….” (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.)

The demurrer to the professional negligence cause of action contained in the original complaint was sustained because plaintiff had not alleged any facts to establish that, but for defendant’s negligence, he would have achieved a more favorable result. In the FAC, plaintiff added allegations that his subsequently retained attorney was able to clean up defendant’s professional negligence, by obtaining a favorable visitation result for him, after he had been unfairly denied visitation with his child for several years prior thereto, as well as a favorable child support arrangement, and denial of the fees sought by the child’s mother.

The FAC alleges that plaintiff requested defendant to file the 664.6 motion to enforce the settlement he had entered into with his child’s mother in 2012, and/or to otherwise seek and obtain custody of or visitation with his child, and she failed to do so. It alleges further that her replacement counsel was ultimately able to obtain visitation with his child, which had been denied to him for several years prior, as well as a favorable child support arrangement, and denial of the fees sought by the child’s mother.

In her demurrer, defendant contends that the November 2016 Statement of Decision of which she requests judicial notice establishes that defendant’s allegations are false, since all of the orders sought by her replacement counsel were denied by the court, including the motion made pursuant to Section 664.6. She asserts that plaintiff has not “demonstrated” that she did not exercise reasonable skill and judgment, or that her actions caused him damage. She asserts that causation requires “proof” that the defendant’s conduct was a substantial factor in bringing about harm to plaintiff, and that it is “clear from the court’s records” that she “was successfully able to negotiate and accomplish the difficult task of starting the reunification process.”

As noted above, a demurrer is not concerned with proof, and is concerned only with whether plaintiff’s allegations are sufficient to state a cause of action. Further, in resolving a demurrer, the court considers only those facts contained on the face of the complaint—which it is legally required to assume are true—or matters of which judicial notice may be taken. The vast majority of plaintiff’s comments made with respect to the professional negligence cause of action consist of matters neither pleaded in the complaint nor matters of which judicial notice was taken, including her personal version of the history of the case, her approach to the case, her experience, her contacts with the other side, her perceptions about the child, her strategies, her opinions of plaintiff, her disputes with plaintiff’s allegations, her interpretation of the court’s November 2016 order as providing plaintiff with less visitation than he had previously had, her interpretation that the visitation that was granted in the order did not result from her replacement counsel’s efforts, and her conclusion that it was only through her consistent-with-the-standard-of-care efforts that plaintiff was ultimately able to obtain visitation, months after she had ceased representing him. Absolutely none of that information is permissibly raised by a demurrer, and the Court has completely disregarded it.

The Court has reviewed the Statement of Decision issued by Judge Anderle in November 2016. It did, in fact, deny the Code of Civil Procedure section 664.6 motion which had been filed on plaintiff’s behalf by the attorney who replaced defendant. However, the Statement of Decision also resulted in restored visitation by plaintiff with his child, after he had been deprived of visitation for several years. Defendant is never mentioned in the trial court’s lengthy order, nor is there any mention of any of the efforts defendant contends she made on plaintiff’s behalf which she contends led to the order. The order simply does not, on its face, refute the relevant allegations made in plaintiff’s professional negligence cause of action, as claimed by defendant.

Other than claiming that the Statement of Decision proved plaintiff’s contentions false, and upon disregarding all of the information that was impermissibly included in the demurrer, all that remains are citations to authorities regarding the elements of professional negligence, and no explanation of how or why the allegations of the FAC (as opposed to defendant’s own version of what she contends really happened) are insufficient to state a cause of action for professional negligence. As a result, the Court finds that defendant’s demurrer has failed to meet its burden of showing that the allegations are insufficient to state a cause of action for professional negligence, and will overrule the demurrer to the professional negligence cause of action.

3. Unfair, unlawful, or fraudulent business practices.

Plaintiff’s second cause of action for unfair, unlawful, or fraudulent business practices seeks restitution of the $15,000 which plaintiff contends she wrongfully charged to his credit card for fees that she did not earn. It includes a request for punitive damages of ten million dollars, contending that defendant’s conduct was performed with malice, oppression, or fraud.

Defendant’s demurrer contends that the cause of action fails because it seeks ten million dollars in damages (without identifying those damages as consisting of punitive damages), and asserts that damages are not available in causes of action brought pursuant to Business & Professions Code section 17200, citing Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1266.) She reasons that since “relief” is an element of a cause of action, if the only relief a plaintiff seeks is something that is specifically prohibited, the entire cause of action fails. This argument necessarily fails, because the punitive damage claim is not the only relief sought in the complaint. Indeed, the cause of action expressly seeks the restitution of the $15,000 which defendant charged to plaintiff’s credit card, which plaintiff alleges was for fees that defendant did not earn.

Whether or not punitive damages are available for a cause of action for unfair, unlawful, or fraudulent business practices pursuant to Business & Professions Code section 17200, a demurrer could not address the issue, since a demurrer is not the proper vehicle for challenging the relief sought in a complaint. (Venice Town Council v. City of L.A. (1996) 47 Cal.App.4th 1547, 1562.). Rather, when punitive damages are not legally recoverable, the proper means of challenging the claim is through use of a motion to strike. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.)

The demurrer next appears to contend that the cause of action does not allege an unlawful business act or practice, or an unfair business act or practice, citing cases that explain what is meant by “unlawful” or “unfair,” for purposes of Section 17200, et seq. Defendant contends that plaintiff alleged that she oppressed him, but that he did not allege any facts which, if true, would amount to oppressive conduct.

Without even analyzing the sufficiency of defendant’s arguments regarding whether the cause of action has shown “unfair” or “unlawful” business practices, the demurrer to the cause of action for violation of Sections 17200 et seq. must be overruled based upon the demurrer’s failure to address whether a fraudulent business practice existed. By the terms of the statutes, a violation of Sections 17200 et seq. can be stated upon allegation of business practices which are “unfair,” business practices which are “unlawful,” OR business practices which are “fraudulent.” Plaintiff alleged that defendant’s conduct in representing to him that she would charge the $15,000 to plaintiff’s credit card for attorneys’ fees and costs incurred in her representation, and failure to provide any services for or earn the fees charged, thereby causing him damage, was unlawful, unfair, and fraudulent. (See FAC @ ¶¶ 8, 10(vii) and (xi), and 17-19.) In focusing solely upon only two of the three alternatives by which a claim may be stated, the demurrer—on its face—fails to meet its burden of establishing that no cause of action for violation of Sections 17200 et seq. has been stated.

4. Fraud.

Plaintiff’s final cause of action is for fraud. Plaintiff alleges that defendant represented to him that (1) she would review plaintiff’s family law file for a flat fee of $2,500, (2) she would promptly file a Section 664.6 motion to enforce settlement in the family law case, (3) she would reasonably, fairly, effectively, economically, and competently represent his interests in the family law case, (4) she would bill him fairly and would not overcharge him, and (5) she would promptly, effectively, and competently move for family law orders to allow him a fair and equitable custody and/or visitation arrangement with his child. He further alleges that defendant knew those representations were false when she made them, knew she was inexperienced and unable to accomplish those tasks, and had no intention of doing any work for him that would accomplish favorable support, visitation, or custody, and wished only to charge him to support her lifestyle. He alleges she intended that he rely upon her representations, and he did so, suffering harm as a result.

Once again, defendant’s demurrer ignores the facts that are alleged, and is based upon her own version of the factual background of the events in question, including her contentions: that plaintiff made libelous remarks about her; that she has practiced for 28 years and is in good standing with the State Bar; that the $15,000 was a retainer that was used up and plaintiff still owes her more fees; that plaintiff never contested her bills, that he violated the terms of the retainer agreement in filing this case; that American Express got wise to his scam; that plaintiff has made up false claims, includes hearsay inferences, and uses histrionic dramatic phrases; that plaintiff initiates or causes litigation; that plaintiff tries to get free services from professionals by using their services and not paying them or by giving them a credit card so that he can later dispute the charges; that plaintiff is currently in litigation with another attorney for unpaid fees; that plaintiff brags that he is judgment proof; that plaintiff has cheated a co-parenting counselor out of fees; that plaintiff owes her sanctions ordered by the Los Angeles Court; and that plaintiff has cheated Dr. Marlene Valter.

As this Court set out above: (1) 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); (2) in resolving a demurrer, the court 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.); and (3) 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. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Defendant’s demurrer has made no effort to address the facts actually alleged by defendant—which this court is legally required to accept as true in determining the propriety of a demurrer—and instead has impermissibly asserted facts and contentions which are outside the face of the FAC or the matters of which judicial notice have been taken. While setting forth the elements of a fraud claim, the demurrer’s contention that plaintiff alleged only a conclusory basis for his fraud claims is not explained, except by the demurrer’s insistence that the allegations are contrary to the plethora of facts and contentions it impermissibly sets forth.

While plaintiff’s cause of action for fraud is not a model pleading, it adequately and specifically alleges the elements of a fraud cause of action. He alleges specific representations, made directly to him by defendant, which induced him to retain her services. He alleges that the representations were false, and that defendant knew they were false, or acted with reckless disregard of their truth. He alleges that he suffered harm as a result of his reliance upon those representations. The truth of those allegations, and his ability to prove them, are not at issue on demurrer, in the absence of matter of which judicial notice may be taken that conclusively shows their falsity. None of the matters of which judicial notice have been taken bear any relationship to the fraudulent conduct alleged to have been committed by defendant. As a result, the demurrer to the fraud cause of action must be overruled.

Sanctions motion The motion is denied.

Defendant seeks sanctions against plaintiff, apparently based upon his filing of the complaint and amended complaint, pursuant to Code of Civil Procedure section 128.7.

Under Section 128.7(a), every party not represented by an attorney must sign every pleading or paper. Under subdivision (b), by presenting any such paper to the court, the unrepresented party is certifying to the best of his or her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances that, among other things, it is not being presented for an improper purpose, the claims are warranted by existing law, and the factual contentions have evidentiary support or are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

Section 128.7(c) provides, in relevant parts:

(c) If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation. In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence.

(1) A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). Notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. . . .

Defendant’s motion for sanctions suffers from several fatal defects. First and foremost, it is unsupported by any evidence to support its claims that the filing of the action was sanctionable conduct, under the terms of Section 128.7(b), i.e., that it is presented for an improper purpose, that its claims are not warranted by existing law, or that its claims have no evidentiary support or are not likely to have evidentiary support after reasonable opportunity for further investigation or discovery. The motion includes four declarations, each of which is limited to the identification and articulation of the nature of the monetary amounts that defendant seeks from plaintiff. The motion contends that the filing of the action was sanctionable under Section 128.7, based upon factual allegations set forth in the memorandum of points and authorities, none of which are supported by any evidence whatsoever. The Court notes that the request for judicial notice filed by defendant on August 13, 2018, expressly notes that it was filed in support of defendant’s demurrer only, and makes no mention of defendant’s sanction motion. Even if the Court were to consider the judicially noticed documents with respect to the sanction motion, however, the bulk of the factual contentions set forth in the sanction motion remain unsupported by any evidence or proof of any sort, and there is insufficient evidence before the Court in the judicially noticed documents to allow it to conclude that the very filing of the action, and every claim against defendant set forth therein, constitutes conduct that is sanctionable, within the meaning of Section 128.7(b).

Second, Section 128.7(c) includes the 21 day “safe harbor” period, in which the moving party serves but does not file a motion for sanctions, during which the supposedly offending party may correct or withdraw the challenged paper or action, thereby avoiding sanctions. Here, the sole proof of service attached to the motion states that it was served upon plaintiff on August 13, 2018. The motion itself was filed on August 17, 2018, four days later, setting the matter for hearing on September 12—which hearing date was continued by the court to October 17 at the August 29, 2018 CMC. While the body of the motion itself briefly acknowledges the “safe harbor” requirement (at p. 7, lines 18-20), and claims to have given plaintiff two opportunities to dismiss the complaint and amended complaint, there is no evidence or proof of any sort before the Court that any such thing occurred.

Further, as noted above, the purpose of the safe harbor provision is to provide the offending party the opportunity to avoid sanctions by performing a particular action. The nature of that action depends upon the act that the moving party contends gives rise to sanctions under Section 128.7. The motion itself seeks monetary sanctions against plaintiff, but never clearly articulates what it is that plaintiff can do to avoid imposition of sanctions. Again, it is only at page 7, buried deep within the motion, that defendant contends that she gave plaintiff two opportunities to “dismiss” the action. The motion never establishes that this information was clearly articulated to plaintiff—who is representing himself, and as a non-attorney may not have been immediately able to identify how he could avoid being sanctioned, except through a filed opposition to the sanction motion—as the statute clearly intends by providing the “safe harbor” period within which a party can act to avoid imposition of sanctions.

For the foregoing reasons, the Court will deny the motion for sanctions.