Defendant Ronan Cohen?s (?Cohen?) Motion for Judgment on the Pleadings as to the second and third causes of action of the Fourth Amended Complaint (?4thAC?) alleged against him, is granted without leave to amend.
Second Cause of Action (Fraud/Fraudulent Concealment) and Third Cause of Action (Negligent Misrepresentation)
The misrepresentation causes of action consist of two categories of allegations: (1) Cohen?s statements about his experience and that of Defendant Chaim J. Woolf (4thAC, ?? 34, 48, 51, and 69); and (2) Plaintiffs? claims regarding improper legal advice (4thAC, ?? 49, 69, and 71).
The 4thAC fails to state sufficient facts to state a cause of action for fraud/fraudulent concealment and negligent misrepresentation. The elements of fraud are (1) a misrepresentation (false representation, concealment, or nondisclosure), (2) knowledge of falsity (scienter), (3) intent to defraud (i.e., to induce reliance), (4) justifiable reliance, and (5) resulting damage.? (Conroy v. Regents of University of California?(2009) 45 Cal.4th 1244, 1255.)??To establish fraud through nondisclosure or concealment of facts, it is necessary to show the defendant was under a legal duty to disclose them.? (OCM Principal Opportunities Fund v. CIBC World Markets Corp.?(2007) 157 Cal.App.4th 835, 845.)
The elements for negligent misrepresentation are the same as those for fraud, except that the second element, which for negligent misrepresentation is the defendant made the representation without reasonable ground for believing it to be true.?? (West v. JPMorgan Chase Bank, N.A.?(2013) 214 Cal.App.4th 780, 792.)? Negligent misrepresentation is a form of deceit, and allegations of negligence are insufficient.? (Gagne v. Bertran?(1954) 43 Cal.2d 481, 487-488.)
First, Cohen?s statements regarding attorney experience,?there are not misrepresentations of fact, but rather are an expression of opinion.? For instance, Cohen and Woolf were qualified attorneys.? Woolf was ?better than nothing?. In most instances, opinions are not considered statements of fact, and thus are not actionable. (Neu-Visions Sports, Inc. v. Soren/McAdam/Bartells?(2000) 86 Cal.App.4th 303, 308;?Graham v. Bank of America, N.A.?(2014) 226 Cal.App.4th 594, 606.) Here, Cohen?s representations are about his own skill level and that of Mr. Woolf?s. (4thAC, ?? 34, 48, 51, and 69.)
Second, as to the allegations regarding Cohen?s improper or inadequate legal advice,?Plaintiffs complain of work not being performed in a methodical or logical manner (4thAC, ??49), giving poor advice regarding defenses that could have been raised at plaintiffs? trial (4thAC, ??61(ii)), and providing an inadequate defense and concealing their lack of expertise (4thAC, ??69(iii).? If true, these deficiencies all amount to acts of professional negligence.
?[T]he nature of a cause of action does not depend on the label the plaintiff gives it or the relief the plaintiff seeks but on the primary right involved.? (Bird, Marella, Boxer & Wolpert v. Superior Court?(2003) 106 Cal.App.4th 419, 427, as modified on denial of reh?g (Mar. 17, 2003).)
Code of Civil Procedure section 340.6 provides, in relevant part:
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.
Here, Plaintiffs allege that they had notice of possible malpractice in mid-June 2012 when Woolf forwarded to Younessi an email from Diamond?s attorney. (4thAC, ??54.) Moreover, Plaintiffs discovered, or should have discovered, Cohen?s lack of expertise in October 2011 when Harrison Long withdrew as trial counsel, telling plaintiff ?that the case file and trial preparation was too disorganized for him to be able to sort it out by the time of trial.?? (4thAC, ? 50.) Plaintiffs did not commence this action until October 15, 2013, which is after the one-year statute of limitations provided by Code of Civil Procedure section 340.6.
Finally,?Plaintiffs have not alleged sufficient facts showing how, when, where, and by what means the alleged misrepresentations were tendered. The allegations do not meet the specificity requirements for a fraud cause of action. (Stansfield v. Starkey?(1990) 220 Cal.App.3d 59, 73 [the particularity requirement requires that the party show how, when, where, to whom, and by what means the representations were tendered].)? Therefore, the judgment on the pleadings as to the second and third causes of action is granted.
To be granted leave to amend, Plaintiffs must show how the complaint could be pleaded to state a valid cause of action. (Schifando v. City of Los?Angeles (2003) Cal.4th 1074, 1081.)? In sustaining the previous demurrers to the TAC, the court provided a lengthy ruling with detailed analysis as to the deficiencies of the TAC.? Despite having this ruling, Plaintiffs have not cured the deficiencies.? Plaintiffs have been given fair and ample opportunity to amend their pleadings to cure the defects.? Plaintiffs have offered no basis for the Court to conclude that they could amend the 4thAC to state new facts that would cure the 4thAC?s defects.? Accordingly, leave to amend the 4thAC is denied.
Defendant Cohen shall give notice of the ruling.