Case Number: EC061517    Hearing Date: July 25, 2014    Dept: A

Rael v Brown

DEMURRER

Calendar: 3
Case No: EC061517
Date: 7/25/14

MP: Defendants, John Anderson, Karie Horie, and Anderson, Horie & Co., LLC
RP: Plaintiff, Mark Rael, interim successor trustee of The Rael Family 1993 Inter Vivos Trust and interim successor administrator of the Estate of Tony G. Rael, Jr.

ALLEGATIONS IN COMPLAINT:
The Defendants, Lorne Brown, Matthew Brown, Brown & Associates, LLP, breached their duty of care by providing legal services below the standard of care with regards to a trust, tax planning, and litigation.
In addition, the Defendants John Andersen, Karie Horie, and the Andersen, Horie & Co. breached their duty of care when they provided accounting services below the standard of care with regards to accounting services, maintaining adequate records, advising on tax strategy, and filing tax returns.

CAUSES OF ACTION IN CROSS-COMPLAINT:
1) Legal Malpractice
2) Breach of Fiduciary Duty
3) Accountancy Malpractice

RELIEF REQUESTED:
Demurrers to third cause of action.

DISCUSSION:
This hearing concerns demurrers brought by Defendants, Providence John Anderson, Karie Horie, and Anderson, Horie & Co., LLC. The Defendants argue that the third cause of action in the First Amended Complaint lack sufficient facts and is uncertain.

The Defendants argue that there are no specific facts identifying its negligence. However, specific facts are not required because California law permits the Plaintiff to state his professional negligence claim in general terms, without stating the facts constituting such negligence. Smith v. Beauchamp (1945) 71 Cal. App. 2d 250, 254-255 (holding it is sufficient to plead that the thing done was negligently done). The Plaintiff meets this requirement by alleging in paragraphs 27 that the when the Defendants provided accounting services, they provided the services negligently. In paragraph 29, the Plaintiff alleges that as a result, he suffered damages in an amount to be proven at trial. This is sufficient to plead a negligence claim.
Further, the argument lacks persuasive force because the Plaintiff pleaded specific facts. The Plaintiff alleges in paragraph 28 that the Defendants failed to adequately maintain accounting records and failed to prepare tax returns. This indicates that there are specific allegations that identify the manner in which the Defendants were negligent, e.g., they did not prepare adequate tax returns.
Therefore, the Court will overrule the general demurrer to the third cause of action.

In addition, the Defendants argue that the cause of action is uncertain. A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. Khoury v. Maly’s of California Inc. (1993) 14 Cal.App.4th 612, 616. A demurrer for uncertainty will be sustained only when the complaint is so bad that the defendant cannot reasonably respond because the defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against the defendant. Id.
A review of the pleadings reveals that the Plaintiff identified the nature of the claim directed at the Defendants, i.e., a cause of action for negligence. Further, the Defendants can reasonably respond by admitting or deny that they acted negligently when they provided accounting services to the Plaintiff, e.g., they can admit or deny the allegation that they failed to prepare adequately tax returns. Since the Defendants can reasonably determine the nature of the count and what issues to admit or deny, the cause of action is not uncertain.

Therefore, the Court will overrule the demurrer for uncertainty to the third cause of action.

RULING:
OVERRULE demurrers to third cause of action.