Case Name: Ravi Sharma v. Steven Fabbro, et al.

Case No.: 1-16-CV-291372

  • Demurrer to Plaintiff Ravi Sharma’s First Amended Complaint by Defendant Eric Hartman
  • Demurrer to First Amended Complaint by Defendant Steven A. Fabbro

Plaintiff Ravi Sharma (“Sharma”) alleges defendant Steven Fabbro (“Fabbro”), a licensed attorney, owed him a fiduciary duty to perform legal services in a medical malpractice lawsuit (“Underlying Action”) that plaintiff Sharma inherited from his mother, Shiela Sharma (“Decedent”), who passed away while the Underlying Lawsuit was pending. (First Amended Complaint (“FAC”), ¶¶1 – 2 and 8.) Defendant Fabbro failed to exercise reasonable care and skill in performing legal services. (FAC, ¶4.) Defendant Fabbro dismissed the Underlying Action without talking to plaintiff Sharma and later told Sharma there were no other options. (FAC, ¶11.) As a result, plaintiff Sharma failed to recover in the Underlying Action. (FAC, ¶5 – 6.)

On or about October 4, 2012, plaintiff Sharma retained defendant Eric Hartman (“Hartman”) to represent plaintiff Sharma in a wrongful death action (“Wrongful Death Action”). (FAC, ¶15.) Defendant Hartman failed to exercise reasonable care and skill in undertaking such legal services. (FAC, ¶16.) Defendant Hartman failed to obtain a proper expert and wrote an inflammatory memorandum of points and authorities. (FAC, ¶21.) Defendant Hartman told plaintiff Sharma he would prepare a proper response but delivered a deficient response a day before it was due and plaintiff could not cure the deficiency. The court granted summary judgment against plaintiff Sharma. (FAC, ¶¶22 and 24.) As a result, plaintiff Sharma lost the Wrongful Death Action and suffered damages in the sum of $250,000. (FAC, ¶¶17 – 18.)

On February 9, 2016, plaintiff Sharma filed a complaint against defendants Fabbro and Hartman. On March 2, 2016, plaintiff Sharma filed a FAC against defendants Fabbro and Hartman asserting causes of action for:

  • Legal Malpractice [versus defendant Fabbro]
  • Constructive Fraud [versus defendant Fabbro]
  • Legal Malpractice [versus defendant Hartman]
  • Constructive Fraud [versus defendant Hartman]

On April 25, 2016, defendant Hartman filed a demurrer to plaintiff Sharma’s FAC. On that same date, defendant Fabbro also filed a demurrer to plaintiff Sharma’s FAC.

On May 17, 2016, plaintiff Sharma filed a single opposition to both demurrers.

  1. Defendant Hartman’s demurrer to plaintiff Sharma’s FAC is SUSTAINED, in part, and OVERRULED, in part.
  1. Request for Judicial Notice.

In support of his demurrer, defendant Hartman requests judicial notice of the FAC. Evidence Code section 452, subdivision (d) states that the court may take judicial notice of “[r]ecords of any court of this state.” This section of the statute has been interpreted to mean that the trial court may take judicial notice of the existence of the court’s own records. Evidence Code section 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.)

Accordingly, defendant Hartman’s request for judicial notice is GRANTED. The court takes judicial notice of the existence of the document, not necessarily the truth of any matters asserted therein.

  1. Demurrer to Third Cause of Action – Legal Malpractice.

Defendant Hartman demurs to the third cause of action for legal malpractice on the ground that the pleading is uncertain. (Code Civ. Proc., §430.10, subd. (f).) Defendant Hartman offers extrinsic evidence concerning the history of the Underlying Action and the Wrongful Death Action. Defendant Hartman asserts the extrinsic fact that he was hired for the limited purpose of preparing opposition to a demurrer and a motion for summary judgment in the Wrongful Death Action. Defendant Hartman contends the legal malpractice action presently directed against him is uncertain because it does not identify the relevant dates and procedural history of the Underlying Action and the Wrongful Death Action, does not identify what legal services he performed, and does not identify the proper standard of care.

“In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213 – 214.)

While the extrinsic evidence that defendant Hartman relies upon in demurring may very well be relevant, defendant Hartman cites no relevant legal authority which would require plaintiff Sharma to specifically plead such facts in a cause of action for legal malpractice. “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.)

Here, the third cause of action is not so uncertain that defendant is unable to respond. Accordingly, defendant Hartman’s demurrer to the third cause of action in plaintiff Sharma’s FAC on the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (f)] is OVERRULED.

  1. Demurrer to Fourth Cause of Action – Constructive Fraud.

Constructive fraud is defined by Civil Code section 1573 to consist of, “any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or anyone claiming under him, by misleading another to his prejudice, or to the prejudice of anyone claiming under him; or, any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud.” “In addition to the traditional liability for intentional or actual fraud, a fiduciary is liable to his principal for constructive fraud even though his conduct is not actually fraudulent. Constructive fraud is a unique species of fraud applicable only to a fiduciary or confidential relationship.” (Salahutdin v. Valley of California, Inc. (1994) 24 Cal.App.4th 555, 562.) “[A]s a general principle constructive fraud comprises any act, omission or concealment involving a breach of legal or equitable duty, trust or confidence which results in damage to another even though the conduct is not otherwise fraudulent. Most acts by an agent in breach of his fiduciary duties constitute constructive fraud. The failure of the fiduciary to disclose a material fact to his principal which might affect the fiduciary’s motives or the principal’s decision, which is known (or should be known) to the fiduciary, may constitute constructive fraud. Also, a careless misstatement may constitute constructive fraud even though there is no fraudulent intent.” (Ibid.)

Constructive fraud, like actual fraud, must be pleaded with specificity. (See Schauer v. Mandarin Gems of Cal., Inc. (2005) 125 Cal.App.4th 949, 961.) In the fourth cause of action, plaintiff Sharma alleges, in part, defendant Hartman “fail[ed] to deliver on his promises” but it is unclear from the FAC what those promises entailed. Plaintiff Sharma does not address this inadequacy in his opposition.

Accordingly, defendant Hartman’s demurrer to the fourth cause of action in plaintiff Sharma’s FAC on the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (f)] is SUSTAINED with 10 days’ leave to amend.

  1. Defendant Fabbro’s demurrer to plaintiff Sharma’s FAC is SUSTAINED.
  1. Request for Judicial Notice.

In support of his demurrer, defendant Fabbro requests judicial notice of records from the Underlying Action, the Wrongful Death Action, and the instant action. Evidence Code section 452, subdivision (d) states that the court may take judicial notice of “[r]ecords of any court of this state.” This section of the statute has been interpreted to mean that the trial court may take judicial notice of the existence of the court’s own records. Evidence Code section 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.)

Accordingly, defendant Fabbro’s request for judicial notice in support of demurrer to the FAC is GRANTED. The court takes judicial notice of the existence of the document, not necessarily the truth of any matters asserted therein.

  1. Demurrer – Statute of Limitations.

“Where the dates alleged in the complaint show the action is barred by the statute of limitations, a general demurrer lies.” (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PROC. BEFORE TRIAL (The Rutter Group 2015) ¶7:50, p. 7(I)-30 citing Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995, et al.) “The running of the statute must appear ‘clearly and affirmatively’ from the dates alleged. It is not enough that the complaint might be barred.” (Id. citing Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4th 32, 42, et al.)

Defendant Fabbro demurs to plaintiff Sharma’s FAC on the ground that it is barred by Code of Civil Procedure section 340.6 which sets forth the statute of limitations for an action against an attorney. That section states, in relevant part:

(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. 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; and

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

From the request for judicial notice, defendant Fabbro asks this court to take judicial notice of the fact that defendant Fabbro filed the Underlying Lawsuit on behalf of Decedent on November 11, 2009 alleging medical malpractice against Dr. Jean Luong occurring on December 8, 2008. Decedent died on November 14, 2010 and on December 16, 2010, defendant Fabbro filed a dismissal of the Underlying Lawsuit without prejudice.

Plaintiff Sharma filed the Wrongful Death Action on January 31, 2012. On May 7, 2012, plaintiff Sharma filed a first amended complaint in the Wrongful Death Action asserting claims for (1) negligence; (2) survivor action; and (3) wrongful death. On July 19, 2012, Dr. Luong filed a demurrer to the first amended complaint in the Wrongful Death Action. On September 19, 2012, plaintiff Sharma simultaneously filed opposition to that demurrer and a dismissal of the first and second causes of action. On October 2, 2012, the court sustained Dr. Luong’s demurrer to the first and second causes of action without leave to amend and overruled the demurrer to the third cause of action.

In this instant action, plaintiff Sharma alleges defendant Fabbro failed to exercise reasonable care and skill in performing legal services in the Underlying Lawsuit. (FAC, ¶4.) Defendant Fabbro dismissed the Underlying Action without talking to plaintiff Sharma and later told Sharma there were no other options. (FAC, ¶11.)

Based on the judicially noticeable facts, defendant Fabbro contends the claims against him in the instant action are barred by the one year statute of limitations set forth in Code of Civil Procedure section 340.6 because plaintiff Sharma actually discovered or should have discovered the facts constituting the wrongful act or omission (dismissal of the Underlying Action and misrepresentation concerning plaintiff Sharma’s legal options or lack thereof). Plaintiff Sharma knew of the dismissal when he filed the Wrongful Death Action on January 31, 2012. By October 2, 2012, the date the court ruled on Dr. Luong’s demurrer in the Wrongful Death Action, plaintiff Sharma knew or should have known about defendant Fabbro’s purported misrepresentation concerning the viability of any legal options because the court sustained the demurrer to the survivor action without leave to amend based upon the statute of limitations. Any error by defendant Fabbro concerning the viability of a survivor action would have been apparent by that date. Thus, plaintiff Sharma had until October 2, 2013 to commence this instant action, but plaintiff did not do so until February 9, 2016 and is, therefore, barred by Code of Civil Procedure section 340.6.

“It is well settled that the one-year limitations period of section 340.6 is triggered by the client’s discovery of the facts constituting the wrongful act or omission, not by his discovery that such facts constitute professional negligence, i.e., by discovery that a particular legal theory is applicable based on the known facts. It is irrelevant that the plaintiff is ignorant of his legal remedy or the legal theories underlying his cause of action.” (Peregrine Funding, Inc. v. Sheppard, Mullin, Richter & Hampton, LLP (2005) 133 Cal.App.4th 658, 685; punctuation omitted; see also Pompilio v. Kosmo (1995) 39 Cal.App.4th 1324, 1328—“discovery of facts essential to malpractice and the suffering of actual harm from the malpractice establish a cause of action and start the statute of limitations.”)

In opposition, plaintiff Sharma argues that the statute of limitations was tolled. Specifically, Code of Civil Procedure section 340.6, subdivision (a)(1) states that an action against an attorney for his wrongful act or omission is tolled while, “[t]he plaintiff has not sustained actual injury.” Defendant Fabbro argued plaintiff Sharma suffered an injury when he incurred legal costs (filing fees) to file the Wrongful Death Action. “A plaintiff alleging legal malpractice in the prosecution or defense of a legal claim must prove that, but for the negligence of the attorney, a better result could have been obtained in the underlying action.” (Herrington v. Superior Court (2003) 107 Cal.App.4th 1052, 1057.) Plaintiff Sharma contends he did not suffer any injury from incurring legal costs because he would have had to incur the same legal costs if Fabbro continued to prosecute the Underlying Action or prosecuted a survival/ wrongful death action. According to plaintiff Sharma, he did not sustain an actual injury based on defendant Fabbro’s negligence until the court entered judgment against him in the Wrongful Death Action. By his own admission, the court granted summary judgment against him in the wrongful death action on February 13, 2013. On its own, the court takes judicial notice that entry of judgment in the Wrongful Death Action occurred on March 22, 2013. In either case, plaintiff Sharma sustained an injury by 2013 and since he did not commence this instant action until February 9, 2016, plaintiff Sharma’s claims against defendant Fabbro are barred by the one year statute of limitations set forth in Code of Civil Procedure section 340.6.

Accordingly, defendant Fabbro’s demurrer to the first and second causes of action in plaintiff Sharma’s FAC on the ground that the pleading does not state facts sufficient to constitute causes of action [Code Civ. Proc., §430.10, subd. (e)], i.e., that plaintiff Sharma’s first and second causes of action are barred by the one-year statute of limitations of Code of Civil Procedure section 340.6, are SUSTAINED WITHOUT LEAVE TO AMEND.