2013-00146107-CU-PN
BAPH3, Inc. vs. Joseph A. Salazar
Nature of Proceeding: Motion to Strike
Filed By: Mille-Henricks, Christine
Defendants Lewis Brisbois Bisgaard & Smith LLP and Joseph A. Salazar’s Motion to Strike Specified Portions of the Plaintiffs’ Complaint is GRANTED, with and without
leave to amend.
The Notice of Motion does not provide notice of the Court’s Tentative Ruling System
as required by with C.R.C., Rule 3.1308 and Local Rule 1.06(d). Local rules for the
Sacramento Superior Court are available on the court’s website at
ordered to notify opposing party immediately of the Tentative Ruling System and to 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(b).
The motion to strike paragraph 2 of the prayer for punitive and exemplary damages
according to proof is GRANTED with leave to amend. As set forth in the ruling on the
demurrer heard concurrently herewith, the plaintiffs have pled insufficient facts to
support an award of punitive damages.
The motion to strike paragraph 3 of the prayer “For injunctive relief preventing
Defendants from causing such further injuries to Baph3 and other clients of
Defendants” and of paragraph 6 “For additional remedial measures requiring
Defendants to strictly adhere to the professional standards to which they are bound by
law and submit to an annual audit by Baph3 for compliance with the same” are
GRANTED without leave to amend.
There are no allegations of continuing or future injuries sufficient to support injunctive
relief and no basis in the law is cited in opposition for allowing the remedy of judicial
monitoring of attorneys’ adherence to professional standards.
The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.
Item 10 2013-00146107-CU-PN
BAPH3, Inc. vs. Joseph A. Salazar
Nature of Proceeding: Hearing on Demurrer
Filed By: Mille-Henricks, Christine
Defendants Lewis Brisbois Bisgaard & Smith LLP and Joseph A. Salazar’s Demurrer
to the Plaintiffs’ Complaint is OVERRULED in part and SUSTAINED in part, with leave
to amend.
The Notice of Motion does not provide notice of the Court’s Tentative Ruling System
as required by with C.R.C., Rule 3.1308 and Local Rule 1.06(d). Local rules for the
Sacramento Superior Court are available on the court’s website at
ordered to notify opposing party immediately of the Tentative Ruling System and to 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(b).
Plaintiffs’ complaint sets forth seven causes of action: the 1 for professional
negligence, the 2nd for breach of fiduciary duty, the 3rd for intentional and negligent
infliction of emotional distress, the 4 for negligent infliction of emotional distress the for breach of contract, the 6 for fraud, and the 7 for unfair business practices
pursuant to California Business & Professions Code sections 17200, et seq.
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Defendants demur to the 2 through 7 causes of action only.
The allegations of the complaint arise from the alleged legal malpractice by defendants
in their representation of plaintiffs in the underlying action.
Demurrer to the 2nd for breach of fiduciary duty is OVERRULED.
Defendants concede, as they must, that attorneys are fiduciaries of their clients. See,
e.g. Oasis West Realty, LLC v. Goldman, (2011) 51 Cal. 4th 811, 821.
The court finds that facts to support each of the required elements have been alleged.
Plaintiffs may allege alternate theories of liability based on the same facts. The Court
is not prepared to conclude that no recovery may be had against defendants for
breach of fiduciary duty on the facts pled.
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Demurrer to the 3 for intentional infliction of emotional distress is SUSTAINED, with
leave to amend.
The elements of the tort of intentional infliction of emotional distress are: (1) extreme
and outrageous conduct by the defendant with the intention of causing, or reckless
disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering
severe or extreme emotional distress; and (3) actual and proximate causation of the
emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous
must be so extreme as to exceed all bounds of that usually tolerated in a civilized
community. Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal. 4th 965, 1001. The
defendant must have engaged in “conduct intended to inflict injury or engaged in with
the realization that injury will result.” Christensen v. Superior Court (1991) 54 Cal. 3d
868, 903.
“Outrageous conduct” denotes conduct which is so extreme as to exceed all bounds of
decency and which is to be regarded as “atrocious, and utterly intolerable in a civilized
community.’” (Bartling v. Glendale Adventist Medical Center (1986) 184 Cal.App.3d
961, 970, quoting Bogard v. Employers Casualty Co. (1985) 164 Cal.App.3d 602, 616.)
“Whether a defendant’s conduct can reasonably be found to be outrageous is a
question of law that must initially be determined by the court; if reasonable persons
may differ, it is for the jury to determine whether the conduct was, in fact,
outrageous.” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534.)
Here, there are no facts pled which reflect that either defendant intended to cause
emotional distress to plaintiffs, or that they suffered severe emotional distress.
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Demurrer to the 4 for negligent infliction of emotional distress is SUSTAINED with
leave to amend.
It may be foreseeable that a client who is the victim of legal malpractice will suffer
emotional distress. But the lawyer’s obligation to the client, at least absent knowledge
of any unusual susceptibility, is economic; the lawyer does not assume an obligation to
protect the client’s emotional state. Courts have refused to permit the victims of
attorney malpractice to recover emotional distress damages. Friedman v. Merck & Co.
(2003) 107 Cal. App. 4th 454, 472-473, and cases cited therein.
As this is a legal malpractice case, in the absence of a legal duty, leave to amend is
denied.
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Demurrer to the 5 for breach of contract is SUSTAINED, with leave to amend.
Plaintiff have failed to either set out the terms of the contract verbatim in the complaint,
or attached a copy of the written agreement. As plaintiffs concede that they have
failed to do so, the demurrer is sustained, with leave to amend.
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Demurrer to the 6 for fraud is SUSTAINED, with leave to amend.
In California, fraud must be pled specifically; general and conclusory allegations do not
suffice. Thus the policy of liberal construction of the pleadings will not ordinarily be
invoked to sustain a pleading defective in any material respect. This particularity
requirement necessitates pleading facts which ‘show how, when, where, to whom, and
by what means the representations were tendered. Lazar v. Superior Court (1996) 12
Cal. 4th 631, 645.
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Demurrer to the 7 for unfair business practices pursuant to California Business &
Professions Code sections 17200, et seq. is SUSTAINED, with leave to amend.
Plaintiffs have failed to plead sufficient facts to establish that the defendants’ conduct
was unlawful, unfair or fraudulent.
Plaintiffs shall file and serve their First Amended Complaint not later than Monday,
Oct. 21, 2013. The responsive pleading shall be due 10 days thereafter (or 15 days, if
service is by mail).
This minute order is effective immediately. No formal order nor further notice is
required, the tentative ruling providing sufficient notice.
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