Case Number: BC511860??? Hearing Date: July 26, 2016??? Dept: 34
SUBJECT: Demurrer to cross-complaint
Moving Party: Plaintiff and cross-defendant Shahrokh Mokhtarzadeh, a professional law corporation (?plaintiff?)
Resp. Party: None
Plaintiff?s demurrer to Jamshid Aryeh?s cross-complaint is OVERRULED.
PRELIMINARY COMMENTS:
At the Status Conference on June 14, 2016, defendant stated that he might be hiring an attorney. Apparently, defendant is still self-represented.
Nonetheless, the Court is concerned that this demurrer is unopposed, and yet plaintiff has not indicated that he is planning on filing an amended complaint. If cross-complainant Aryeh believed that the demurrer should be overruled, he should have filed an opposition.
BACKGROUND:
Plaintiff commenced this action against defendant and cross-complainant Jamshid Aryeh on 6/11/13 for: (1) common counts; (2) account stated; (3) quantum meruit; and (4) breach of contract. Plaintiff alleges that defendant has failed to pay for legal services rendered by plaintiff.
On 7/11/13, defendant filed a cross-complaint for legal malpractice. Defendant alleges plaintiff failed to appear in court when required, failed to file proper pleadings, and was evasive and dishonest with the court. (Cross-Compl., ? 4.) As a result, defendant lost the underlying action and a judgment of over $68,000.00 was rendered against defendant. (Id., ? 5.)
ANALYSIS:
Defendant demurs to the cross-complaint?s only cause of action for legal malpractice on the grounds that the cross-complaint fails to allege sufficient facts and is uncertain.
“In order to establish a cause of action for legal malpractice the plaintiff must demonstrate: (1) breach of the attorney’s duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a proximate causal connection between the negligent conduct and the resulting injury; and (3) actual loss or damage resulting from the negligence.” (Thompson v. Halvonik (1995) 36 Cal.App.4th 657, 661.) In the cross-complaint, defendant alleges that he retained plaintiff to represent him in the underlying action. (Cross-Compl., ? 3.) Defendant alleges that plaintiff breached the duty to exercise reasonable care and skill by failing to appear in court, failing to file proper pleadings, and being evasive and dishonest with the court. (Id., ? 4.) Defendant alleges that this conduct caused him to lose the case, which resulted in an actual loss of $568,000.00, plus costs. (Id., ?? 4-6.) Therefore, defendant has sufficiently alleged the elements of a legal malpractice claim against plaintiff.
The Court rejects plaintiff?s argument that more particularized pleadings are necessary. Under Code of Civil Procedure section 425.10, subd. (a), a complaint must contain a “statement of facts constituting the cause of action, in ordinary and concise language.” Complaints must contain ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) The allegations in the cross-complaint present sufficient ultimate facts to support the sole cause of action for legal malpractice.
Plaintiff also demurs on the ground that the cross-complaint is uncertain. Demurrers for uncertainty are strictly construed, because discovery can be used for clarification, and apply where defendants cannot reasonably determine what issues or claims are stated. (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) “Demurrer for uncertainty will be sustained only where the complaint is so bad that the 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.” (Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2013) ? 7:85.) Here, the facts are not so uncertain that plaintiff cannot reasonably determine what issues must be admitted or denied. To the extent that plaintiff wishes to learn more specific facts about defendant?s claims, plaintiff may do so through the discovery process.
Accordingly, plaintiff?s demurrer to the cross-complaint of defendant Aryeh is OVERRULED.