Demurrer

Cal. Super. - 6th Dist.March 26, 2021

10 ll 12 13 14 15 l6 17 18 l9 20 21 22 23 24 25 26 27 28 21 CV381 370 Santa Clara - Civil R. Burc S.d C Fl SBN 64082 Electronically Filed 1 ney . ores, - FLORES & BARRIOS by Superior Court of CA, 601 N. First St. Ste. 200 C°unty 0f Santa C'araa San Jose, CA 95112 on 7/21/2021 4:54 PM Tel: (408) 292-3400 Reviewed By: R. Burciaga Fax: (408) 292-3421 Case #21 CV381 370 floreslawfirm@yahoo.com Envelope: 6898272 Attorney for Michael E. Hingle SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CIVIL UNLIMITED ) Case No.: 21CV381370 RITA KING, ) , , ) DEFENDANT’S NOTICE OF Plalntlff, ) DEMURRER AND DEMURRER TO ) VERIFIED COMPLAINT; VS- ) MEMORANDUM OF POINTS AND ) AUTHORITIES; DECLARATION OFMICHAEL E- HINGLE and DOES 1 t0 10, ) SIDNEY C. FLORES RE: COMPLIANCE ) WITH MEET AND CONFER Defendants. ) REQUIREMENTS 0F CCP §430.41 g Date: FB-D 10-12-21 ) Time: 9:00 AM ) Dept: 19 3 ) Date Complaint was filed: 03/26/2021 TO EACH PARTY AND TO THE COUNSEL OF RECORD FOR EACH PARTY: 1 0-1 2-21 YOU ARE HEREBY NOTIFIED THAT on at 9:00AM in Department 19 ofthe courthouse located at 191 N. First St., San Jose, California 951 13, Defendant Michael E. Hingle will and hereby does demur to the Verified Complaint filed by Plaintiff Rita King on March 26, 2021. This demurrer is based on this notice, the attached demurrer and points and authorities, the pleadings, records and files in this action, all matters which the Court may take judicial notice, and such further evidence and argument as may be presented to the Court at or before the hearing on demurrer. iaga 10 ll 12 l3 14 15 l6 17 18 l9 20 21 22 23 24 25 26 27 28 Pursuant to Local Rule 8(E), the Court follows CRC 3. 1 308(a)(l) for those depanments that have elected to issue tentative rulings in civil law and motion and discovery matters. Counsel and litigants are responsible for determining whether the department hearing their motion has made this election. Those departments issuing tentative rulings will do so generally by 2:00 p.m., and no later than 3:00 p.m., on the court day preceding the scheduled hearing. If the Court has not directed oral argument, a party contesting a tentative ruling must give notice of its intention to appear t0 the other side and the Court no later than 4:00 p.m. on the court day preceding the scheduled hearing. Appearances may be made by telephone (through CourtCall) or in person. The tentative ruling will automatically become the order of the Court on the scheduled hearing date if the Court has not directed oral argument and if the contesting party fails to timely notice an objection to the other side and the Court. Tentative rulings will be posted on the Court's website, www.scscourt.org, where further information may be found. If a party does not have access to the intemet, the tentative ruling may be accessed by calling Court Services at (408) 882-25 1 5. Questions about these procedures may be addressed to the specific department where the matter is to be heard. Date: 7/21/2021 FLORES & BARRIOS Sidney C. Flores Attorney for Defendant 10 ll 12 13 l4 15 l6 17 18 l9 20 21 22 23 24 25 26 27 28 DEMURRER TO VERIFIED COMPLAINT Defendant Michael E. Hingle (“Defendant” or “Hingle”) hereby demurs under Code Civ. Proc. §§ 430.10, subd. (e) and (f) to Plaintiff Rita King’s Verified Complaint (“Complaint”) as follows: DEMURRER TO FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT Pursuant to Code Civ. Proc. § 430.10(e), Plaintiff s cause of action for Breach of Contract fails to allege facts sufficient to constitute a cause of action against Defendant. DEMURRER TO SECOND CAUSE OF ACTION FOR ELDER ABUSE Pursuant to Code Civ. Proc. § 430.100), Plaintiff’s cause of action for Elder Abuse is uncertain and vague. DEMURRER TO THIRD CAUSE OF ACTION FOR FRAUD Pursuant to Code Civ. Proc. § 430.10(e), Plaintiff’s cause of action for Fraud fails to allege facts sufficient to constitute a cause of action against Defendant. Pursuant t0 Code Civ. Proc. § 430.106), Plaintiff s cause of action for Fraud is uncertain. DEMURRER TO FOURTH CAUSE OF ACTION FOR NEGLIGENT MISREPRESENTATION Pursuant to Code Civ. Proc. § 430.10(e), Plaintiff’s cause of action for Negligent Misrepresentation fails to allege facts sufficient to constitute a cause of action against Defendant. Pursuant to Code Civ. Proc. § 430.10(f), Plaintiff’s cause of action for Negligent Misrepresentation is uncertain. DEMURRER TO FIFTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Pursuant to Code Civ. Proc. § 430.10(e), Plaintiff’s cause of action for Intentional Infliction of Emotional Distress fails to allege facts sufficient to constitute a cause of action against Defendant. 10 11 12 13 l4 15 16 l7 18 19 20 21 22 23 24 25 26 27 28 Pursuant to Code Civ. Proc. § 430.106), Plaintiff s cause of action for Intentional lnfliction of Emotional Distress is uncertain. DEMURRER TO SIXTH CAUSE OF ACTION FOR STATE BAR ACT/PROFESSIONAL RESPONSIBILITY VIOLATIONS Pursuant to Code Civ. Proc. § 430.10(e), Plaintiff‘s cause of action for_State Bar Act/ Professional Responsibility Violations fails to allege facts sufficient to constitute a cause ofaction against Defendant. Pursuant to Code Civ. Proc. § 430.10(0, Plaintiff‘s cause of action for State Bar Act/Professional Responsibility Violations is uncertain. Date: 7/21/2021 FLORES & BARRIOS Sidney C. Flores Attorney for Defendant Table of Contents 10 11 12 l3 l4 15 l6 l7 18 19 20 21 22 23 24 25 26 27 28 Page I. Facts ............................................................................................. 1 II. Legal Authority ............................................................................... 4 III. Argument ..................................................................................... 5 A. The Court should sustain Defendant’s demurrer to the First Cause of Action for Breach of Contract without leave to amend because it fails to state facts sufficient to constitute a cause of action pursuant to Code Civ. Proc. § 430.10(e) ................................................................................. 6 B. The Court should sustain Defendant’s demurrer to the Second COA for Elder Abuse because it is uncertain and vague pursuant to Code Civ. Proc. § 430. 1 O(f) ................................................................................... 8 C. The Court should sustain Defendant’s demurrer to the Third COA for Fraud without leave to amend pursuant to Code Civ. Proc. §§ 430.10, subd. (e) and (f) ................................................................................. 10 1. The Complaint fails to state a cause of action for fraud because Plaintiff’s claim is barred by Code Civ. Proc. § 338(d) .................. 10 2. Plaintiff’s claim for Fraud is not pleaded with sufficient particularity and is therefore uncertain and fails to state a cause of action ............................................................................ 11 D. The Court should sustain Defendant’s demurrer to the Fourth COA for Negligent Misrepresentation without leave to amend pursuant to Code Civ. Proc. §§ 430.10 subd., (e) and (f) ..................................................... 12 1. The Complaint fails to state a cause of action for negligent misrepresentation because Plaintiff’s claim is barred by the applicable statute of limitations .............................................. 12 2. Plaintiff’s claim for negligent misrepresentation is uncertain and fails to state a cognizable cause of action ................................... 13 E. The Court should sustain Defendant’s demurrer to the Fifth COA for Intentional Infliction of Emotional Distress without leave to amend pursuant to Code Civ. Proc. § 430.10(e) and § 430.10(e) .................................... 14 1. The Complaint fails to state a cause of action for IIED because Plaintiff’s claim is barred by Code Civ. Proc. § 335.1 .................... 14 10 11 12 13 14 15 16 17 l8 19 20 21 22 23 24 25 26 27 28 2. Plaintiff’s claim for IIED is uncertain and fails to state a cause of action ............................................................................. F. The Court should sustain Defendant’s demurrer to the Sixth COA for State Bar Act/Professional Responsibility Violations without leave to amend pursuant to Code Civ. Proc. §§ 430.10, subd. (e) and (t) .......................... 1. Plaintiff’s claims for State Bar Act/Professional Responsibility Violations are uncertain ....................................................... 2. The Complaint fails to state a cause of action for State Bar Act/Professional Responsibility Violations because Plaintiff is a nonclient and does not have standing to sue ................................ IV. Conclusion ................................................................................... 14 15 15 17 18 _ii_ lO 11 12 13 14 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 Table of Authorities Cases Aubry v. Tri-City Hospital District (1992) 2 Cal. 4th 962 ........................................................ Biakanja v. Irving (1958) 49 Cal.2d 647 ........................................................ Blank v. Kirwan (1985) 39 Cal.3d 3 11 ........................................................ Borissoffv. Taylor Faust (2004) 33 Cal.4th 523 ....................................................... CR. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094 .............................................. Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857 ................................................... Carney v. Simmonds (1957) 49 Cal.2d 84 ......................................................... Evans v. City ofBerkeley (2006) 38 Cal.4th 1 .......................................................... Gentry v. eBay, Inc. (2002) 99 Cal. App. 4th 816 ................................................ Guardian North Bay, Inc. v. Sup.Ct. (2001) 94 Cal.App.4th 963 ................................................. Hebert v. Los Angeles Raiders, Ltd. (1991) 23 Cal.App.4th 4 1 4 ................................................. Hoffman v. Smithwoods R V Park, LLC (2009) 179 Cal.App.4th 390 ............................................... Hooked Media Grp. v. Apple Inc. (2020) 55 Cal.App.5th 323 ................................................. Hughes v. Pair (2009) 46 Cal.4th 1035 ...................................................... Pages 4 6 5 7 5 14 12 5 4 4 5 5 13 14, 15 -iii- 10 11 12 13 14 15 16 l7 18 l9 20 21 22 23 24 25 26 27 28 Hydro-Mill Ca, Inc. v. Hayward, Tilton & Rolapp Ins. Assoc., Inc. (2004) 115 Cal.App.4th 1145 .............................................. Jones v. Hertz Corporation, 6037170, at *1 (Cal. Ct. App. May 10, 2007) .......................... Kelly v. General Telephone C0. (1982) 136 Cal.App.3d 278 ................................................. Khoury v. Maly’s ofCalifornia, Inc. (1993) 14 Cal.App.4th 612 .................................................. Lawrence v. Bank ofAmerica (1985) 163 Cal.App. 3d 431 ................................................ Mark K. v. Roman Catholic Archbishop (1998) 67 Cal.App.4th 603 ................................................. Musser v. Provencher (Cal. 2002) 28 Cal.4th 274 ................................................. Rakestaw v. California Physicians ’ Service (2000) 81 Cal.App.4th 39 ................................................... Richman v. Hartley (2014) 224 Cal.App.4th 1182 .............................................. St. Paul Title C0. v. Meier (1986) 181 Cal.App.3d 948 ................................................. Stansfield v. Starkey (1990) 220 Cal.App.3d 59 .................................................. Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153 ................................................... Ventura County Nat. Bank v. Mocker (1996) 49 Cal.App.4th 1528 ................................................ Statutes Business and Professions Code § 6148, subd. (a) ............................... Civ. Code § 1709 ...................................................................... 12 4 15,16 4 5 10 7, 17 4 5,6 7 11,12 13 12 17 11 -iV_ 10 ll 12 13 14 15 l6 17 18 19 20 21 22 23 24 25 26 27 28 Civ. Code§ 1710 ...................................................................... 11 Code Civ. Proc. § 335.1 .............................................................. 14 Code Civ. Proc. § 430.10, subd. (e) ................................................ 4-5, 8, 12, 14-15, 18 Code Civ. Proc. § 430.10, subd. (f) ................................................ 4-5, 8, 10, 12, 14-15, 17 Code Civ. Proc. § 430.50, subd. (a) ................................................. 4 Code Civ. Proc. §338, subd. (d) ..................................................... 10, 11, 12 Code Civ. Proc. § 339 ................................................................ 12 Welfare & Institutions Code § 15610.07 ........................................... 9 Welfare & Institutions Code § 15610.30 .......................................... 9 Rules California Rules of Professional Conduct, Rule 1.5(a) ......................... 16 California Rules of Professional Conduct, Rule 1.8.6 ........................... 17 California Rules of Professional Conduct, Rule 1.15(d)(3) ...................... 18 California Rules of Professional Conduct, Rule 4.1(a) ......................... 16 California Rules of Professional Conduct, Rule 8.4 .............................. 16 Secondary Sources Vapnek et a1., Cal. Practice Guide: Professional Responsibility (The Rutter Group 2004) .................................................... 7 10 11 12 13 l4 15 16 l7 l8 l9 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. FACTS Plaintiff Rita King’s (“Plaintiff’ or “Rita”) Complaint against Defendant Michael Hingle (“Defendant” or “Hingle”) arises from Defendant’s legal representation of Willie King (“Willie”), Plaintiff’s grandson, pursuant to the following events: On July 18, 2017, Willie was arrested and charged in the Superior Court of California, Santa Clara County Case No. C1769105 as an accessory to murder (Cal. Pen. Code § 32/1 87). Thereafter, Plaintiff contacted Defendant about representing Willie in his criminal case. On July 19, 201 7, Defendant visited Willie in custody at the main jail to obtain his consent regarding representation. On the morning of July 20, 2017, Plaintiff, along with a family member Sharon Reese, met with Defendant to discuss Willie’s retainer agreement before Willie’s court appearance later that afternoon. A true and correct copy of the retainer agreement presented to Plaintiff on July 20, 2017 (“RA- 1”) is included with Defendant’s Request for Judicial Notice filed concurrently herewith and is incorporated herein by reference. RA-l states that it is “a retainer agreement for representation of Client Willie King (hereinafter referred to as ‘Client’) entered into by Client and Michael E. Hingle, Attorney at Law. . . .” (Defendant’s Request for Judicial Notice, Ex. A at p. 1.) RA-l covered representation of Willie in Case No. C1769105 through preliminary examination and called for a flat fee of $20,000 to be paid in two installments. (RA-l at p. 1.) RA-l further acknowledges Plaintiff’s role as a “Third Party Payor” and states in pertinent part: Third Party Payor Rita King acknowledges this agreement to pay for attorney's fees and costs does not make Third Party Payor a client of Attorney and that an attomey-client relationship will exist only between Attorney and Client. Third Party Payor further agrees that they will not interfere with the attomey-client relationship and will not interfere with the Attorney's exercise of independent professional judgment on behalf of the client. In furtherance of the independent nature of the attomey-client relationship, Third Party Payor acknowledges that it has no right to direct Attorney's handling of Client's matter. (RA-l at p. 3.) It further states: 10 11 12 13 14 15 l6 17 18 l9 20 21 22 23 24 25 26 27 28 By signing this Agreement, Client and Third Party Rita King acknowledge they have: (l) read and fiJlly understand this disclosure and consent form, (2) agreed that Attorney may accept compensation from Rita King to provide legal services to Client under the terms and conditions of this Agreement and (3) that Rita King has been represented and advised by counsel in entering into this Agreement or has waived their right to such representation and advice. (RA-l at p. 4.) Willie, Plaintiff, and Rita signed RA-l on August 10, 2017, and Plaintiff paid the flat fee of $20,000 in accordance with the terms of RA-l. On December 1, 2017, the District Attorney by motion consolidated the case against Willie with that of four other defendants, two ofwhom were charged with murder, in Case No. C1646901 and the court in turn set preliminary examination for December 11, 2017. Consolidation of the two cases changed the nature and complexity of the issues to be analyzed and the work to be done in Willie’s criminal defense and Defendant therefore required a new retainer agreement (“RA-Z”) for Willie’s representation. (A true and correct copy ofRA-2 is included with Defendant’s Request for Judicial Notice filed concurrently herewith and is incorporated herein by reference.) The terms of RA-2 were the same as RA-l , except that it covered representation of Willie in the new consolidated Case No. C1646901 through preliminary examination and called for a flat fee of $35,000 ($20,000 ofwhich was credited per payments made under RA-l ). (Defendant’s Request for Judicial Notice, Ex. B at p. 1.) Defendant discussed RA-2 with Plaintiff on December 5, 2017, and Willie signed it on December 12, 201 7. On December 11, 2017, the date of Willie’s initial preliminary examination, one of the defendants refused to leave his cell for the hearing, so the Court, on its own motion, continued the matter to December 14, 201 7. (A true and correct copy of the Minute Order from the December 11, 201 7 hearing is included with Defendant’s Request for Judicial Notice filed concurrently herewith and is incorporated herein by reference.) On December 14, 2017, when Defendant appeared for Willie’s lO ll 12 13 l4 15 l6 17 18 19 20 21 22 23 24 25 26 27 28 preliminary hearing, Defendant was infomed by the Court that Willie had been indicted in Case No. 2M through a grand jury proceeding that took place on December 12, 201 7. Thereafter, Defendant prepared a third retainer agreement (“RA-3”) to cover Willie’s legal representation through trial in the new murder case, Case No. 216525. (A true and correct copy of RA-3 is included with Defendant’s Request for Judicial Notice filed concurrently herewith and is incorporated herein by reference.) The terms of RA-3 are the same as RA-l and RA-2, except that it covered Willie’s representation through trial and called for a non-refundable flat fee of $135,000. RA-3 was signed by Plaintiff on January 3, 2018. Trial in Case No. 216525 was set for December 9, 2019, with a time not waived last day of December 30, 2019. In or around October 2019, Willie and his family advised Defendant that they had hired another attorney, David Johnson, to replace Defendant as counsel for Willie. On November 20, 2019, the Court approved Willie’s substitution of attorney on the condition that Mr. Johnson be ready for trial as scheduled. Plaintiff now sues Defendant for Breach of Contract, Elder Abuse, Fraud, Negligent Misrepresentation, Intention Infliction of Emotional Distress (“IIED”), and State Bar Act/Professional Responsibility Violations. Plaintiff alleges, on information and belief, that Defendant provided no legal services, or substantially no legal services under RA-l , RA-2, and RA-3 (collectively “Retainer Agreements”). The thrust of Plaintiff‘s claims is based on her allegations, formed on information and belief, that Defendant fraudulently induced her to enter into the Retainer Agreements to wrongfully receive payment for Willie’s defense. She alleges, on information and belief, that Defendant promised to competently represent Willie, but had no intention to provide the legal services he promised, that he promised to represent Willie through preliminary examination when he in fact knew there would be no 10 ll 12 13 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 preliminary examination, that Defendant breached his professional/fiduciary duties to Willie, and that Plaintiff suffered damages and emotional distress as a result. II. LEGAL AUTHORITY Objection to a complaint via demurrer is sustainable if “[t]he pleading does not state facts sufficient to constitute a cause of action” and “[t]he pleading is uncertain” or “vague.” (Code Civ. Proc. §§ 430.10, subd, (e) and (0.) The term “uncertain” includes the issue of whether the pleading is "ambiguous and unintelligible." (Code Civ. Proc. § 430.10, subd. (1).) Uncertainty covers any defective statement leaving the cause of action or any part of it unclear. Ambiguity is narrower, available when the complaint is doubtful in meaning. [Citation.]. . . A complaint is unintelligible when it is incomprehensible. [Citation.] Even though a complaint is in some respects uncertain, courts may overrule the demurrer if the allegations, liberally construed, are sufficient to apprise the defendant of the issues raised. [Citation.] (Jones v. Hertz Corporation, G037170, at *1 (Cal. Ct. App. May 10, 2007) (citations omitted).) A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond. (Khoury v. Maly's ofCalifornia, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer can be made to an entire complaint or individual causes of action therein. (Code Civ. Proc. § 430.50(a).) A demurrer can be utilized where the complaint itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Sup.Ct. (2001) 94 Cal.App.4th 963, 971-972.) A cause of action is subject to demurrer for failure to state a claim if the complaint discloses an affirmative defense on its face, and the plaintiff has not "pleaded around" that defense. (Gentry v. eBay, Inc. (2002) 99 Cal. App. 4th 816, 824-25.) In reviewing a demurrer, the court must accept as true all material facts properly pleaded, but not the contentions, deductions, or conclusions of fact 0r law. (Aubry v. Tri-City Hospital District (1992) 2 Cal. 4th 962, 967.) The plaintiff must show that the complaint alleges facts sufficient to establish every 10 11 12 13 l4 15 16 l7 l8 19 20 21 22 23 24 25 26 27 28 element of each cause of action. (Rakestaw v. California Physicians ’ Service (2000) 81 Cal.App.4th 39, 43.) In addition to the complaint's allegations and exhibits, courts consider matters that must or may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 31 1, 3 1 8 (“Blank”); Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 400.) If such judicially noticeable facts render an otherwise facially valid complaint defective, judgment on the pleadings is proper. (Evans v. City ofBerkeley (2006) 38 Cal.4th 1, 6.) “False allegations of fact. . . contrary to facts judicially noticed [citation], may be disregarded. . . ." (Hoffman, supra, 179 Cal.App.4th at p. 400; accord, CR. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1102 [allegations contrary to the law 0r to a fact of which judicial notice may be taken will be treated as a nullity].) “Sustaining a general demurrer without leave t0 amend is not an abuse of discretion if it appears from the complaint that under applicable substantive law there is no reasonable probability that the defect can be cured by amendment.” (Hebert v. Los Angeles Raiders, Ltd. (1991) 23 Cal.App.4th 414, 426; citations omitted.) The burden of proving such reasonable possibility is squarely on the plaintiff. (Blank, supra, 39 Cal.3d at p. 3 1 8.) “Leave t0 amend should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law.” (Lawrence v. Bank Qf America (1985) 163 Cal.App. 3d 431, 436.) III. ARGUMENT Defendant objects to the Complaint because the allegations contained therein fail to state a cause of action for which relief could be granted under Code Civ. Proc. § 430.10(e) and/or are uncertain and vague under Code Civ. Proc. § 430.10(f). Defendant further asserts that there is no reasonable probability that said defects can be cured by amendment, and therefore requests that this Court sustain his demurrer without leave to amend pursuant to Code Civ. Proc. §§ 430.10, subd. (e) and (f). 10 11 12 l3 l4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. The Court should sustain Defendant’s demurrer t0 the First Cause of Action for Breach of Contract without leave to amend because it fails to state facts sufficient to constitute a cause of action pursuant to Code Civ. Proc. § 430.l0(e). “To prevail on a cause of action for breach of contract, the plaintiff must prove (l) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) Here, Plaintiff has failed to properly plead the first element for breach of contract because she has not alleged the existence of a contract between herself, as the real party in interest, and Defendant. Nor has she alleged that she was Defendant’s client or an intended beneficiary of the Retainer Agreements. The Retainer Agreements, of which the Courts may take judicial notice, clearly state that they were entered into between “Client and Attorney” and that Rita King was a “Third Party Payor” and her agreement to pay for Willie’s attorney's fees and costs did not make her a client. Accordingly, Defendant’s duties to perform under the Retainer Agreements were owed solely to Willie, and Plaintiff, as a third party, has no standing to sue for Defendant’s alleged breach thereof. The California Supreme Court held that whether the defendant in a specific case “will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors,” including: (l) “the extent to which the transaction was intended to affect the plaintiff,” (2) “the foreseeability of harm to [the plaintiff],” (3) “the degree of certainty that the plaintiff suffered injury,” (4) “the closeness of the connection between the defendant's conduct and the injury suffered,” (5) “the moral blame attached to the defendant's conduct,” and (6) “the policy of preventing future harm.” (Biakanja v. Irving (1958) 49 Cal.2d 647, 650 (“Biakanja”).) In this matter, none of the Retainer Agreements were intended to affect Plaintiff-she was not a client nor an intended beneficiary. The Retainer Agreements affected Plaintiff only to the extent that she agreed to be financially responsible for Willie’s attorney’s fees. Nonetheless, the Retainer Agreements were explicitly clear that Defendant’s duties were owed solely to his client, Willie. Further, the only -6- 10 ll 12 13 l4 15 l6 l7 18 19 20 21 22 23 24 25 26 27 28 foreseeable harm to Plaintiff was that she would be dissatisfied with the legal services provided to Willie. But again, as a third payor party, Plaintiff did not have any rights under the Retainer Agreements to dictate Defendant’s representation of Willie. Most importantly, well-established policy considerations weigh against holding Defendant liable to Plaintiff for his alleged breach of Retainer Agreements. In California, "[a]n attorney's liability for professional negligence does not ordinarily extend beyond the client except in limited circumstances." (St. Paul Title C0. v. Meier (1986) 181 Cal.App.3d 948, 950; see also Vapnek et al., Cal. Practice Guide: Professional Responsibility (The Rutter Group 2004) 1] 6:240, p. 6-38 [attorney generally has no professional obligation to nonclient].) The California Supreme Court has reiterated that "the general rule [is] that an attorney owes a duty of care, and is thus answerable in malpractice, only to the client with whom the attorney stands in privity of contract." (Borissoffv. Taylor Faust (2004) 33 Cal.4th 523, 530.) “It is the unique quality of legal services, the personal nature of the attorney's duty to the client and the confidentiality of the attorney-client relationship that invoke public policy considerations in our conclusion that malpractice claims should not be subject to assignment." (Musser v. Provencher (Cal. 2002) 28 Cal.4th 274, 285 (“Musser”).) An “attorney owes a duty of undivided loyalty and diligence in representing the client. Such duty is personally owed by the attorney and may not be delegated to others, and is owed solely t0 the client, the attorney's one intended beneficiary.” (Id. at p. 286.) Assignability would encourage commercialization of claims, and would force attorneys to defend themselves against persons to whom no duty was ever owed. Moreover, the legal profession is debased by such commercialization because it could (1) encourage unjustified lawsuits; (2) generate increased malpractice lawsuits, burdening the profession, the court system and (to the extent malpractice premiums would inevitably rise and be passed to the consumers) the public; and (3) promote champerty. [Citation.] Assignability could conceivably reduce the public's access to legal services, since the ever present threat of assignment by irresponsible clients (seeking quick financial gain) could cause lawyers to evaluate more selectively the desirability of representing a particular client. [Citation.]' (Ibid.; citations omitted.) 10 ll 12 13 l4 15 16 l7 18 l9 20 21 22 23 24 25 26 27 28 Here, although labeled as a breach of contract claim, Plaintiff’s claim sounds in malpractice. She alleges on information and belief that “Hingle performed substantially no legal services for the benefit of her grandson. Rita is informed and believes that Hingle did not collect evidence, contact witnesses, evaluate the claims against Willie and/or competently advise and/or defend Willie.” (Complaint at 1] 14.) She further alleges, on information and belief, “that Hingle performed no legal services of value and did not earn any of the advance fees paid for representation of Willie King.” (Complaint at 1] 23.) As a nonclient, Plaintiff is not in a position to make these claims-Defendant’s legal services were not provided to her, she had no right to control Willie’s legal representation, and she was not entitled to disclosure of certain matters related to Willie’s case. Defendant duties were owed solely to Willie, and only Willie can evaluate whether Defendant’s legal services were “competent” or “of value.” Furthermore, because of the personal and confidential nature of the attomey-client relationship, Defendant is prejudiced and cannot defend himself in this action. Defendant should be able to disclose and present certain information and evidence in his own defense, but his ability to do so is severally limited by his duty of loyalty and confidentiality to Willie-especially since Willie has not waived those rights. Accordingly, the public policy against malpractice lawsuits by nonclients should apply with equal force here to Plaintiff’s claim for breach of contract. At bottom, the First Cause of Action (“COA”) fails to state a cause of action for which relief could be granted pursuant to Code Civ. Proc. § 430.10(e). Plaintiff does not have standing to sue Defendant for breach of contract because she is a nonclient, a third party, and Defendant’s duties under the Retainer Agreements were owed solely to his client, Willie. These defects cannot be cured by amendment as Plaintiff is not the real party in interest and cannot plead around this fact. Accordingly, Defendant’s demurrer to the First COA should be sustained without leave to amend. B. The Court should sustain Defendant’s demurrer to the Second COA for Elder Abuse because it is uncertain and vague pursuant to Code Civ. Proc. § 430.100). 10 ll 12 13 14 15 16 l7 l8 19 20 21 22 23 24 25 26 27 28 In Plaintiff‘s Second COA for elder abuse, she realleges her general allegations and the allegations for breach of contract, and specifically alleges: At the time of Defendant Hingle and Does 1-10's acts in fraudulently inducing Rita to sign multiple invalid, unconscionable and coercive fee agreements and to pay $190,000 in "non-refundable" "flat fees," by obtaining a loan secured by her personal residence, Rita was 92 years old. She was an "elder" as defined by Welfare & Institutions Code section 15610.27 and is, therefore, entitled to the statutory protections from abuse provided by Welfare & Institutions Code section 1561 0.07. Defendants knew Rita was an elder. (Complaint at 11 32.) By their actions, Defendant Hingle and Does 1-10 are responsible for elder abuse because their treatment of Rita, as described above, resulted in physical harm and or pain and or mental suffering in violation of Welfare & Institutions Code § 15610.07(a) and Plaintiff is entitled t0 the remedies provided by the Elder Abuse Act. (Complaint at 1] 33.) These allegations are vague and wholly conclusionary. Plaintiff does not make any factual allegations as to the invalidity, unconscionability, or the coerciveness of the Retainer Agreements. Nor does she set forth facts relating to Defendant’s alleged fraudulent acts and mistreatment of Rita or the physical harm, pain and mental suffering that resulted therefrom. As relevant here, WIC §15610.07 defines "abuse of an elder" as "[p]hysical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering" 0r “[fjinancial abuse as defined in Section 15610.30.” Subdivision (a)(l) and (3) of section 15610.30 provides: "Financial abuse of an elder. . . occurs when a person or entity. . . [t]akes, secretes, appropriates, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both . . . or by undue influence as defined in Section 15610.70.” From the face of the Complaint, Defendant can infer that Plaintiff is alleging elder abuse based on financial abuse, however, he cannot ascertain whether the alleged financial abuse was by fraud or undue influence, or both. Likewise, Defendant cannot ascertain whether “other treatment with resulting 10 11 12 13 14 15 l6 l7 l8 19 20 21 22 23 24 25 26 27 28 physical harm, pain, or mental suffering” as used in Section 15610.07(a) is applicable to Plaintiff’s claim. While it is clear that Plaintiff’s claims for elder abuse are largely based on fraud, the general allegations incorporated into her Second COA do not amount to fraud. As will be discussed further below, a claim for fraud must be pleaded with sufficient specificity. With such vague and conclusory allegations, Defendant cannot determine what specific acts constituted fraud or mistreatment and what rendered the Retainer Agreements invalid, unconscionable, or coercive and therefore cannot appropriately respond. Defendant therefore requests the Court sustain his demurrer to the Second COA pursuant to Code of Civ. Proc. § 430.100). C. The Court should sustain Defendant’s demurrer to the Third COA for Fraud without leave to amend pursuant t0 Code Civ. Proc. §§ 430.10, subd. (e) and (f). l. The Complaint fails to state a cause of action for fraud because Plaintiff’s claim is barred by Code Civ. Proc. § 338(d). “An action for relief on the ground of fraud or mistake” must be filed within three years. (Code Civ. Proc. §338(d).) “The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” (Ibid.) Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that [her] injury was caused by wrongdoing, that someone has done something wrong t0 [her]. The limitations period begins once the plaintiff has notice or information of circumstances to put a reasonable person on inquiry. [Citations.] A plaintiff need not be aware of the specific ‘facts' necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, [she] must decide whether to file suit or sit on [her] rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; [she] cannot wait for the facts to find [her]. [Citation.] (Mark K. v. Roman Catholic Archbishop (1998) 67 Cal.App.4th 603, 610; cleaned up; internal quotations omitted.) In the instant case, Plaintiff alleges she was fraudulently induced into entering and/or rendering payment under RA-l, RA-2, and RA-3 on July 20, 201 7, on or around December 12, 2017, and on or -10- 10 11 12 l3 l4 15 16 17 18 l9 20 21 22 23 24 25 26 27 28 around December 14, 2017, respectively. (Complaint at 11111] 8, 16, 19.) Plaintiff further alleges, chiefly on information and belief, that: o Between July 20, 2017 and December 1, 2017, “Hingle performed substantially no legal services for the benefit of her grandson. . . . Hingle did not collect evidence, contact witnesses, evaluate the claims against Willie and/or competently advise and/or defend Willie.” (Complaint at {I 14.) 0 Defendant knew Willie’s “indictment was forthcoming and that there would be no preliminary examination” before he requested “another $35,000 to handle the case through preliminary examination” under RA-2. (Complaint at 1] 18.) o Willie was indicted only two days after RA-2 was purportedly signed. (Ibid) o She never received a copy of RA-Z. (Complaint at 1} 17.) These events should have raised Plaintiff’s suspicions of Defendant’s alleged wrongdoing to her when they occurred, especially since Plaintiff’s belief regarding Defendant’s alleged fraudulent intent and misrepresentations appear to be based on the timing of RA-2 and Willie’s indictment. Accordingly, Plaintiff was put on inquiry notice of Defendant’s alleged fraud as early as December 14, 2017 and should have filed suit no later than December 13, 2020 pursuant to Code Civ. Proc. §338(d). However, Plaintiff filed her claim on March 26, 2021, rendering her fraud claim time barred under Code Civ. Proc. §338(d). Consequently, there is no reasonable probability Plaintiff can plead around the defect and Defendant’s demurrer to the Third COA for Fraud should be sustained without leave to amend. 2. Plaintiff’s claim for Fraud is not pleaded with sufficient particularity and is therefore uncertain and fails t0 state a cause of action. “The elements offraud or deceit (see Civ. Code, §§ 1709, 1710) are: a representation, usually 0f fact, which is false, knowledge of its falsity, intent to defraud, justifiable reliance upon the misrepresentation, and damage resulting from that justifiable reliance.” (Stcznqfield v. Starkey (1990) 220 Cal.App.3d 59, 72-73.) “Every element of the cause ofaction for fraud must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity t0 allow defendant t0 understand fully the nature 0f the charge made.” (Id. at p. 73; internal quotations omitted.) “[A]llegations of fraud involve a serious attack on character, and fairness t0 the defendant demands that -11- 10 11 12 l3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 he should receive the fullest possible details 0f the charge in order to prepare his defense. . . . This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Ibid; internal quotations and citations omitted.) Here, Plaintiff has not pleaded with particularity how Defendant’s alleged misrepresentations were made and how her alleged reliance 0n those misrepresentations were justified. Moreover, all of Plaintiff’s allegations regarding Defendant’s knowledge of falsity and intent to defraud are made 0n information and belief without any factual allegations as to how those beliefs were formed. “It is not sufficient to allege fraud 0r its elements upon information and belief, unless the facts upon which the belief is founded are stated in the pleading.” (Carney v. Simmonds (1957) 49 Cal.2d 84, 100; internal quotations omitted.) “While it is true that ‘there must be cases in which the knowledge of the fraud by its perpetrator must be charged on information and belief, . . . [still] in such cases there must be allegations of facts which show positively or by reasonable inference that such knowledge must have been possessed by the person accused of the fraud.” (Ibid) Given the above, Plaintiff’s fraud claim is also uncertain and vague, and thus fails to state a cause of action and should be dismissed pursuant to Code Civ. Proc. §§ 430.10, subd. (e) and (t). D. The Court should sustain Defendant’s demurrer to the Fourth COA for Negligent Misrepresentation without leave to amend pursuant to Code Civ. Proc. §§ 430.10 subd., (e) and (f). 1. The Complaint fails to state a cause 0f action for negligent misrepresentation because Plaintiff’s claim is barred by the applicable statute of limitations. “A cause of action for negligent misrepresentation is barred by the two-year statute of limitations (§ 339) where the allegations amount to a claim of professional negligence.” (Hydro-Mill C0., Inc. v. Hayward, Tilton & Rolapp Ins. Assoc, Inc. (2004) 115 Cal.App.4th 1145, 1155.) Negligent misrepresentation is also a "species of fraud," which is subject to the three-year statute provided in Code 0f Civ. Proc. § 338, subd. (d). (Ventura County Nat. Bank v. Mocker (1996) 49 Cal.App.4th 1528, 1530- -12- 10 ll 12 13 14 15 16 17 l8 19 20 21 22 23 24 25 26 27 28 153 1 .) Here, Plaintiff’s claim is time barred whether Code Civ. Proc. § 339 or § 338(d) applies. As discussed above, Plaintiff was put on inquiry notice of Defendant’s alleged fraudulent acts as earliest as December 14, 2017 and thus should have brought suit no later than December 13, 2020. As such, there is no reasonable probability that Plaintiff can plead around the defect and Defendant’s demurrer to the Fourth COA for negligent misrepresentation should be sustained without leave to amend. 2. Plaintiff’s claim for negligent misrepresentation is uncertain and fails to state a cognizable cause of action. Plaintiff’s misrepresentation claims appear to be based on her allegations that (1) Defendant promised to render performance under the Retainer Agreements, but had no intention to perform as promised, and that (2) Defendant misrepresented facts relating to future events (representation of Willie through preliminary hearing) to induce Plaintiff to tender payment for Willie’s legal fees. While the former allegations relating to Defendant’s promises are actionable deceit, the latter allegations relating to Defendant’s statements as to future events are not, as they are deemed opinions. (Tarmann v. State Farm Mut. Auto. Ins. C0. (1991) 2 Cal.App.4th 153, 158 (“Tarmann”).) Consequently, only the allegations relating to Defendant’s false promises are actionable fraud. Nevertheless, “there is no recognized cause of action for a negligent misrepresentation based on a false promise.” (Hooked Media Grp. v. Apple Inc. (2020) 55 Cal.App.5th 323, 33 1 .) To maintain an action for deceit based on a false promise, one must specifically allege and prove, among other things, that the promisor did not intend to perform at the time he or she made the promise and that it was intended to deceive or induce the promisee to do or not do a particular thing. Given this requirement, an action based on a false promise is simply a type of intentional misrepresentation, i.e., actual fraud. The specific intent requirement also precludes pleading a false promise claim as a negligent misrepresentation, i.e., "The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true." (Civ. Code, § 171 O, subd. (2).) Simply put, making a promise with an honest but unreasonable intent to perform is wholly different from making one with no intent to perform and, therefore, does not constitute a false promise. Moreover, we decline to establish a new type of actionable deceit: the negligent false promise. (Tarmann, supra, 2 Cal.App.4th at p. 159.) -13- 10 ll 12 l3 l4 15 l6 17 18 19 20 21 22 23 24 25 26 27 28 To the extent Plaintiff’s negligent misrepresentation claim is based on professional negligence, it is vague and uncertain. Under this COA, Plaintiff merely realleges the preceding allegations, which is not sufficient to inform Defendant whether the basis of Plaintiff’s claim lies in fraud or professional negligence. Moreover, Plaintiff has no standing to sue for profession negligence as Defendant did not owe any professional duties to her. Given the above, Plaintiff’s claim for negligent misrepresentation is not actionable and uncertain and should be dismissed without leave to amend pursuant to this demurrer. E. The Court should sustain Defendant’s demurrer to the Fifth COA for Intentional Infliction 0f Emotional Distress without leave t0 amend pursuant to Code Civ. Proc. § 430.10(e) and § 430.10(e). l. The Complaint fails to state a cause 0f action for IIED because Plaintiff’s claim is barred by Code Civ. Proc. § 335.1. Because a claim for IIED involves injury to the person, it must be brought within two years. (Code Civ. Proc. § 335.1.) “A cause of action for intentional infliction of emotional distress accrues, and the statute of limitations begins to run, once the plaintiff suffers severe emotional distress as a result of outrageous conduct on the part of the defendant.” (Cantu v. Resolution Trust Corp. (1 992) 4 Cal.App.4th 857, 889.) Here, while Plaintiff fails to plead when, how, and in what manner she suffered severe emotional distress, it can be reasonably inferred that her alleged injury occurred around the signing of the Retainer Agreements or when she tendered payments thereunder. Plaintiff does not allege the date she last tendered payment to Defendant, however she does allege the final payment of $130,000 was due on or before March 30, 201 8. (Complaint at 11 20.) Thus, presumably, Plaintiff’s alleged injury occurred sometime around March 30, 201 8, rendering her IIED claim time barred as of sometime around March 29, 2020. Therefore, Defendant’s demurrer should be sustained without leave to amend. 2. Plaintiff’s claim for IIED is uncertain and fails to state a cause of action. “A cause of action for intentional infliction 0f emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of -14- 10 ll 12 l3 14 15 16 l7 18 19 20 21 22 23 24 25 26 27 28 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.’ A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.”’ (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.) “Plaintiff employs in part a ‘chain letter’ or cumulative type of pleading.” (Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278, 285 (“Kelly”).) That is, Plaintifi‘s Fifth COA for IIED incorporates by reference all previous allegations. “This type 0f pleading should be avoided as it tends to cause ambiguity and creates redundancy.” (Ibid.) From the face of the Complaint, Defendant cannot determine what conduct Plaintiff is alleging was “extreme and outrageous.” Further, Plaintiff’s allegations as to actual and proximate causation are vague or non-existent; and as mentioned above, Plaintiff fails to plead when and in what manner she allegedly suffered severe emotional distress. This uncertainty in the pleading has in turn severely limited Defendant’s ability to defend himself. Plaintiff’s IIED claim should therefore be dismissed pursuant to Code Civ. Proc. § 430.10, subd. (e) and (f). F. The Court should sustain Defendant’s demurrer t0 the Sixth COA for State Bar Act/Professional Responsibility Violations without leave to amend pursuant to Code Civ. Proc. §§ 430.10, subd. (e) and (f). 1. Plaintiff’s claims for State Bar Act/Professional Responsibility Violations are uncertain. Under her Sixth COA, Plaintiff alleges on information and belief that Defendant violated Business and Professions Code § 6148 because he failed to provide fully executed copies of the fee agreements to Willie King and/or Plaintiff. (Complaint at 1] 52.) She also alleges, on information and belief, that the actions and inactions of Defendants set forth in the Complaint constitute violations of the California Rules of Professional Conduct, including but not limited t0 Rules 1.5, 1.8.6, 1.15, 4.1, and 8.4. (Complaint at 1I 53.) All authorities cited by Plaintiff contain multiple subsections and subdivisions, -15- 10 ll 12 13 14 15 l6 l7 18 19 20 21 22 23 24 25 26 27 28 and Plaintiff makes no other factual allegations, but again improperly employs a cumulative type pleading by incorporating all the previous allegations. (Kelly, supra, 136 Cal.App.3d at p. 285.) As a result, Plaintiffs Sixth COA is ambiguous and uncertain, especially since it is expressly not limited to the authorities cited therein. With only sparse facts alleged under the Sixth COA, Defendant must guess as to the charges against him. For example, California Rules of Professional Conduct, Rule 1.5(a) provides: A lawyer shall not make an agreement for, charge, or collect an unconscionable or illegal fee. While Defendant can reasonably infer that he is charged with violation of Rule 1.5(a) (rather than the other subsections of Rule 1.5), he cannot ascertain what factual allegations render his fees “unconscionable” or “illegal.” Plaintiff has only made conclusionary allegations as to these claims. However, this is not appropriate as “unconscionability” is a fact intensive inquiry. Rule 4.1(a) states: “[i]n the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.” “This rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances.” (California Rules of Professional Conduct, Rule 4. 1 , Comment 2.) Nevertheless, Plaintiff makes no allegations regarding a “false statement of fact” or the circumstances surrounding it under her Sixth COA. Lastly, Rule 8.4 states [i]t is professional misconduct for a lawyer to violate these rules or the State Bar Act. . . or engage in conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation. (California Rules of Professional Conduct, Rule 8.4, subs. (a) and (c).) Again, because of the ambiguity of the Sixth COA and the fact that Plaintiff is making charges against Defendant on Willie’s behalf (which she has no standing to do), Defendant cannot properly defend himself here. -16- 10 ll 12 13 l4 15 16 l7 18 19 20 21 22 23 24 25 26 27 28 On account of the above, Defendant respectfully requests this Court sustain his demurrer to the Sixth COA pursuant to Code Civ. Proc. § 430.10(f). 2. The Complaint fails to state a cause of action for State Bar Act/Professional Responsibility Violations because Plaintiff is a nonclient and does not have standing to sue. Notwithstanding the vagueness and uncertainty of the Sixth COA, Plaintiff fails to state a claim and does not have standing to sue for most State Bar Act/Professional Responsibility Violations. Business and Professions Code § 6148, subd. (a) provides in part: In any case. . . in which it is reasonably foreseeable that total expense to a client, including attorney fees, will exceed one thousand dollars ($1,000), the contract for services in the case shall be in writing. At the time the contract is entered into, the attorney shall provide a duplicate copy of the contract signed by both the attorney and the client. . . to the client or to the client’s guardian or representative. It thus follows that Defendant’s duties pursuant to Business and Professions Code § 6148 are personally owed to his client, Willie King, not Plaintiff. Plaintiff does not allege that she is Willie’s representative or guardian, and Willie cannot delegate his rights as a client to her. (Musser, supra, 28 Cal.4th at p. 285.) Under Rule 1.8.6(c), a lawyer shall not enter into an agreement for, charge, or accept compensation for representing a client from one other than the client unless “the lawyer obtains the client’s informed written consent at or before the time the lawyer has entered into the agreement for, charged, or accepted the compensation, 0r as soon thereafter as reasonably practicable.” “A lawyer’s responsibilities in a matter are owed only to the client except where the lawyer also represents the payor in the same matter.” (California Rules of Professional Conduct, Rule 1.8.6, Comment 1.) As discussed above, Plaintiff was not and is not Defendant’s client and Willie’s rights pursuant to his attomey-client relationship with Defendant cannot be assigned to Plaintiff. (Musser, supra, 28 Cal.4th at p. 285.) Therefore, Plaintiff does not have standing to sue for violation of Rule 1.8.6. -17- 10 ll 12 l3 l4 15 16 l7 l8 19 20 21 22 23 24 25 26 27 28 Rule 1.15(d)(3) states in relevant part that “a lawyer shall. . . maintain complete records of all funds, securities, and other property of a client or other person coming into the possession of the lawyer or law firm.” Plaintiff alleges that Willie gave Defendant his personal notes and that Defendant has not returned those notes to Willie. She did not allege she gave anything to Defendant for safekeeping. Moreover, Rule 1.15 applies to funds, securities, or other property subject to disbursement held by a lawyer in trust or for safekeeping. Plaintiff does not allege she gave any funds, securities, or other property subject to disbursement to Defendant in trust or for safekeeping. Therefore, Plaintiff lacks standing and fails to state a cause of action for violation of Rule 1.15. As Plaintiff does not having standing to sue for the above-mentioned violations, the Sixth COA should be dismissed without leave to amend pursuant t0 Code Civ. Prov. § 430.10(e). IV. CONCLUSION For the reasons set forth above, Defendant respectfully requests the Court sustain his demurrer to the Verified Complaint and each cause of action as set forth herein. Date: 7/21/2021 FLORES & BARRIOS Sidney C. Flores Attorney for Defendants -18- 10 11 12 l3 l4 15 16 l7 l8 19 20 21 22 23 24 25 26 27 28 DECLARATION OF DEMURRING PARTY RE: MEET AND CONFER I, Sidney C. Flores, declare: l. I am the attorney for Defendant Michael Hingle. 2. Mr. Hingle was served with a complaint in the above-titled action and is filing a demurrer. 3. On the morning of July 20, 2021 , I met and conferred with counsel for Plaintiff, Margaret Schneck, by telephone and we did not reach an agreement resolving the matters raised by demurrer. I declare under penalty ofperjury under the laws of the State of California that the information above is true and correct. Date: 7/2 1/2021 Sidney C. Flores