DemurrerCal. Super. - 6th Dist.March 26, 2021lO ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 21 CV381 370 Santa Clara - Civil A. Villan Sidney C. Flores, SBN 64082 E'ecmn'f‘a'w Wed FLORES & BARRIOS by superlor court Of CA, 601 N. First St. Ste. 200 County of Santa Clara, San Jose, CA 951 12 on 1/3/2022 1:27 PM T611 (408) 292-3400 Reviewed By: A. Villanueva Em“ (1408f). 29%;“? Case #21 CV381 37o ores aw 11m ya oo.com Envelope: 7969146 Attorney for Michael E. Hingle SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CIVIL UNLIMITED ) Case No.2 21CV381370RITA KING, ) _ , ) DEFENDANT’S NOTICE OF Plalntlff, ) DEMURRER AND DEMURRER T0 ) VERIFIED FIRST AMENDED VS- ) COMPLAINT; MEMORANDUM OF ) POINTS AND AUTHORITIES;MICHAEL E. HINGLE and DOES 1 to 10, ) DECLARATION 0F SIDNEY C. FLORES ) UNDER CCP §430.41 Defendants. ) ) Date: TBD ) 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: YOU ARE HEREBY NOTIFIED THAT 0n at 9:00AM in Department 19 0f the courthouse located at 191 N. First St., San Jose, California 95 1 13, Defendant Michael E. Hingle Will and hereby does demur t0 the Verified First Amended Complaint 0f Plaintiff Rita King. This demurrer is based 0n 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 fithher evidence and argument as may be presented to the Court at or before the hearing 0n demurrer. ueva XXX 03/17/2022 03/17/2022 lO ll 12 13 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 Pursuant to Local Rule 8(E), the Court follows CRC 3.1308(a)(1) for those departments that have elected t0 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 d0 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 n0 later than 4:00 pm. on the court day preceding the scheduled hearing. Appearances may be made by telephone (through CourtCall) 0r in person. The tentative ruling Will automatically become the order 0f the Court on the scheduled hearing date if the Court has not directed oral argument and if the contesting party fails t0 timely notice an obj ection t0 the other side and the Court. Tentative rulings Will be posted 0n the Court's website, www.scscourt.0rg, Where further information may be found. If a party does not have access to the internet, the tentative ruling may be accessed by calling Court Services at (408) 882-2515. Questions about these procedures may be addressed to the specific department Where the matter is to be heard. Date: 01/03/2022 FLORES & BARRIOS Sidney C. Flores Attorney for Defendant lO ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 DEMURRER TO VERIFIED FIRST AMENDED COMPLAINT Defendant Michael E. Hingle (“Defendant” or “Hingle”) hereby generally and specifically demurs under Code CiV. Proc. § 430. 10, subd. (e) t0 Plaintiff Rita King’s Verified First Amended Complaint (“FAC”) as follows: DEMURRER TO FAC Pursuant t0 Code CiV. Proc. § 430.10(e), the entire FAC fails t0 allege facts sufficient to constitute a cause 0f action against Defendant. DEMURRER TO FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT Pursuant t0 Code CiV. Proc. § 430.10(e), Plaintiff’ s cause of action for Breach of Contract fails t0 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. § 430.10(e), Plaintiff’s cause of action for Elder Abuse fails t0 allege facts sufficient t0 constitute a cause of action against Defendant. DEMURRER TO THIRD CAUSE OF ACTION FOR FRAUD Pursuant t0 Code CiV. Proc. § 430.10(e), Plaintiff s cause 0f action for Fraud fails to allege facts sufficient to constitute a cause of action against Defendant. DEMURRER TO FOURTH CAUSE OF ACTION FOR NEGLIGENT MISREPRESENTATION Pursuant t0 Code CiV. Proc. § 430.10(e), Plaintiff’ s cause of action for Negligent Misrepresentation fails to allege facts sufficient t0 constitute a cause 0f action against Defendant. /// lO ll 12 l3 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 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. Date: 01/03/2022 FLORES & BARRIOS Sidney C. Flores Attorney for Defendant lO ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 Table 0f Contents I. Procedural Posture ....................................................................................... II. Facts .................................................................................................... III. Legal Authority ........................................................................................ VI. Argument ............................................................................................... A. The Court should sustain Defendant’s demurer to the entire FAC without leave t0 amend pursuant t0 CCP § 430. 10(6) because Plaintiff does not have standing to bring a claim for professional negligence ............................................................... 1. Plaintiff has not pleaded around the defects in her initial Verified Complaint ................................................................................... 2. The primary right involved in all causes of action 0f the FAC is the right to competent legal representation .......................................................... 3. Plaintiff does not have standing t0 bring a claim for professional negligence .................................................................................... B. The Court should sustain Defendant’s demurrer t0 the First Cause of Action for Breach of Contract Without leave t0 amend pursuant t0 CCP § 430.10(e) ................. C. The Court should sustain Defendant’s demurrer to the Second COA for Elder Abuse Without leave t0 amend pursuant to CCP § 430. 10(6) ................................. D. The Court should sustain Defendant’s demurrer to the Third COA for Fraud Without leave t0 amend pursuant to CCP § 430.10(e) ......................................... E. The Court should sustain Defendant’s demurrer to the Fourth COA for Negligent Misrepresentation Without leave t0 amend pursuant t0 CCP § 430.10(e) F. The Court should sustain Defendant’s demurrer t0 the Fifth COA for IIED Without leave to amend pursuant to CCP § 430.10(e) .................................................... V. Conclusion ................................................................................................ m 1 1 3 4 4 4 6 6 7 11 12 12 13 lO ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 Table 0f Authorities Cases Aubry v. Tri-City Hospital District (1992) 2 Cal. 4th 962 ............................................................ Berkley v. Dowds (2007) 152 Cal.App4th 518......... Berman v. Bromberg (1997) 56 Cal.App4th 936... Biakanja v. Irving (1958) 49 Ca1.2d 647 ............................................................ Bird, Marella, Boxer & Wolpert v. Superior Court (2003) 106 Cal.App4th 419......... Blank v. Kirwan (1985) 39 Ca1.3d 311 ............................................................ Borissoflv. Taylor Faust (2004) 33 Ca1.4th 523 ............................................................ Bounds v. Superior Court (KMA Group) (2014) 229 Cal.App4th 468... Continental Ins. C0. v. Lexington Ins. C0. (1997) 55 CalHApp 4th 637. Carter v. Prime Healthcare Paradise Valley LLC (2011) I98 Cal.App. 4th 396 .................................................... C.R. v. Tenet Healthcare Corp. (2009) 169 Ca1.App.4th 1094 .................................................. Delaney v. Baker (1999) 20 Camm 23... Evans v. City ofBerkeley (2006) 38 Ca1.4th 1 .............................................................. Gentry v. eBay, Inc. (2002) 99 Cal. App. 4th 816 .................................................... Guardian North Bay, Inc. v. Sup.Ct. (2001) 94 Ca1.App.4th 963 ...................................................... Hebert v. Los Angeles Raiders, Ltd. (1991) 23 Ca1.App.4th 414 ...................................................... Hilliard v. Harbour (2017) 12 Cal.Apthh 1006......... Hofi’man v. Smithwoods RVPark, LLC (2009) 179 Ca1.App.4th 390 ................................................... Hooked Media Grp. v. Apple Inc. (2020) 55 Ca1.App.5th 323 ...................................................... Hughes v. Pair (2009) 46 Ca1.4th 1035 .......................................................... Khodayari v. Mashburn (2011) 200 Cal.App.4th 1184... Pages 10 3,4 7 8,9 5 10 4 8 3 3 3 4 11 3,4 12 13 5,11 _ii_ lO ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 Lawrence v. Bank ofAmerica (1985) 163 Cal.App. 3d 431 ..................................................................... Musser v. Provencher (Cal. 2002) 28 Ca1.4th 274 .................................................. Nelson v. Anderson (1999) 72 Ca1.App.4th 111 Rakestaw v. California Physicians ’ Service (2000) 81 Ca1.App.4th 39 ................................................... Richman v. Hartley (2014) 224 Cal.App.4th 1182 .............................................. Simmons v. S. Pac. Transp. C0. (1976) 62 Caz. App. 3d 341 Stockton Mortgage, Inc. v. Tape (2014) 233 Cal.App.4th 437......... St. Paul Title C0. v. Meier (1986) 181 Cal.App.3d 948 ................................................. Tarmann v. State Farm Mut. Auto. Ins. C0. (1991) 2 Ca1.App.4th 153 ................................................... Statutes Code CiV. Proc. § 430.10, subd. (e) ............................................... Code CiV. Proc. § 430.50, subd. (a) ................................................ CiV. Code § 1575 ..................................................................... Welfare & Institutions Code § 15610.07 .......................................... Welfare & Institutions Code § 15610.27 ........................................... Welfare & Institutions Code § 15610.30 .......................................... 7 10 12 5,6 12 3-4 3 9 9, 10 11 9 -iii- lO ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. PROCEDURAL POSTURE Plaintiff Rita King (“Plaintiff’ or “Rita”) filed a Verified Complaint against Defendant Michael Hingle (“Defendant” or “Hingle”) 0n March 26, 2021. Defendant demurred t0 all causes 0f action in the Complaint and the matter was heard 0n November 30, 2021. The Court sustained the demurrer to the first, fourth, and sixth causes of action with 10 days leave to amend pursuant to Code CiV. Proc. (“CCP”) § 430. 10(6) based 0n Plaintiff’ s lack of standing. The Court overruled the demurrer t0 the second, third, and fifth causes 0f action. On December 10, 2021, Plaintiff served Defendant With a Verified First Amended Complaint (“FAC”) to which Defendant now demurrers. II. FACTS The FAC arises from Defendant’s legal representation 0f Willie King (“Willie”), Plaintiff s grandson, pursuant t0 the following events: On July 18, 2017, Willie was arrested and charged in the Superior Court 0f California, Santa Clara County Case No. C1769105 as an accessory t0 murder. On July 20, 2017, Plaintiff met with Defendant to discuss Willie’s representation and retainer agreement. A true and correct copy of said retainer agreement (“RA-l”) is included With Defendant’s Request for Judicial Notice filed concurrently herewith (“RJN”) as Exhibit 3 and is incorporated herein by reference. RA-l states that it is “a retainer agreement for representation of Client Willie King. . . entered into by Client and Michael E. Hingle, Attorney at Law. . . .” (RJN, EX. 3 at p. 1.) RA-l covered representation 0f Willie in Case No. C1769105 through preliminary examination and called for a flat fee of $20,000 t0 be paid in two installments. (RJN, EX. 3 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 t0 pay for attorney's fees and costs does not make Third Party Payor a client of Attorney and that an attorney-client relationship will exist only between Attorney and Client. Third Party Payor further agrees -1- lO ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 that they will not interfere with the attorney-client relationship and will not interfere with the Attorney's exercise of independent professional judgment on behalf of the client. In fithherance of the independent nature of the attorney-client relationship, Third Party Payor acknowledges that it has n0 right to direct Attorney's handling of Client's matter. (RJN, EX. 3 at p. 3.) Willie, Plaintiff, and Rita signed RA-l on August 10, 2017, and Plaintiff paid the flat fee 0f $20,000 in accordance With the terms of RA-l. On December 1, 2017, the case against Willie was consolidated with that 0f four other defendants in Case N0. C1646901 and the court in turn set preliminary examination for December 11, 2017. Consolidation of the two cases changed the nature and complexity of Willie’s criminal defense and thus required a new retainer agreement (“RA-Z”). (A true and correct copy ofRA-2 is included with Defendant’s RJN as Exhibit 4 and is incorporated herein by reference.) The terms 0fRA-2 were the same as RA-l, except that it covered representation of Willie in the new consolidated Case N0. C1646901 through preliminary examination and called for a flat fee of $35,000. (RJN, EX. 4 at p. 1.) On December 11, 2017, the date of Willie’s initial preliminary examination, the Court continued the matter to December 14, 2017. On December 14, 2017, When Defendant appeared for Willie’s preliminary hearing, Defendant was informed by the Court that Willie had been indicted in Case No.w through a grand jury proceeding 0n December 12, 2017. Thereafter, Defendant prepared a third retainer agreement (“RA-3”) t0 cover Willie’s legal representation through trial in Case N0. 216525. (A true and correct copy of RA-3 is included with Defendant’s RJN as Exhibit 5 and is incorporated herein by reference.) The terms 0fRA-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. (RA-l, RA-2, and RA-3 are collectively referred to herein as “Retainer Agreements”) Trial in Case N0. 216525 was set for December 9, 2019. In 0r around October 2019, Willie and his family advised Defendant that they had hired another attorney. On November 20, 2019, the Court approved Willie’s substitution of attorney. lO ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 Plaintiffnow sues Defendant for breach of contract, elder abuse, fraud, negligent misrepresentation, and intentional infliction of emotional distress (“IIED”) under the FAC. Plaintiff’ s claims revolve around her allegations that she made “an agreement” with Defendant that he would get the criminal charges against Wille dropped in exchange for payment (FAC, WW 2, 7, 13, 20), but that “the charges against Willie were not dropped. And plaintiff is informed and believes that Hingle performed substantially n0 legal services for Willie's benefit.” (FAC, 1] 14.) III. LEGAL AUTHORITY Objection t0 a complaint Via demurrer is sustainable if “[t]he pleading does not state facts sufficient t0 constitute a cause 0f action.” (CCP § 430.10, subd. (6).) A demurrer can be made t0 an entire complaint or individual causes of action therein. (CCP. § 430.50(a).) A demurrer can be utilized Where the complaint itself is incomplete 0r 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 t0 demurrer for failure t0 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.) 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 element 0f each cause 0f action. (Rakestaw v. California Physicians ’ Service (2000) 81 Ca1.App.4th 39, 43.) In addition t0 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, 318 (“Blank”); Hoflman v. Smithwoods RV Park, LLC (2009) 179 Ca1.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 Ca1.4th 1, 6.) “False allegations of fact. . . contrary t0 facts judicially noticed [citation], may lO ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 be disregarded. . . ." (Hoflman, 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 t0 a fact 0fWhich 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 n0 reasonable probability that the defect can be cured by amendment.” (Hebert v. Los Angeles Raiders, Ltd. (1991) 23 Ca1.App.4th 414, 426; citations omitted.) The burden of proving such reasonable possibility is squarely 0n 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 0f America (1985) 163 Cal.App. 3d 43 1, 436.) IV. ARGUMENT Defendant generally and specifically obj ects t0 the FAC under CCP § 430.10(e) because the allegations contained therein fail to state a cause 0f action for which relief can be granted. The primary right involved in all causes 0f action is the right t0 competent legal representation, and as such, Plaintiff does not have standing for any 0f her claims. Defendant further contends that there is n0 reasonable probability that said defects can be cured by amendment, and therefore requests that this Court sustain his demurrer to all causes 0f action without leave t0 amend pursuant t0 CCP § 430. 10(6). A. The Court should sustain Defendant’s demurer t0 the entire FAC without leave t0 amend pursuant t0 CCP § 430.10(e) because Plaintiff does not have standing t0 bring a claim for professional negligence. 1. Plaintiff has not pleaded around the defects in her initial Verified Complaint. In Plaintiff s Verified Complaint, she alleged: she “signed one 0r more written fee agreements t0 hire Defendant. . . t0 perform legal services in exchange for payment”; that “[W]hen Hingle was hired, he represented he would perform legal services in exchange for the payment of his fees in advance. Rita expected that defendant Hingle would perform legal services for Willie as he promised”; that “[b]ecause -4- lO ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 Mr. Hingle did not perform any legal services, Willie King and his family members including Rita were forced t0 hire a different attorney to defend him” (Complaint, 1H1] 2, 13, 23.) In ruling on Defendant’s demurrer t0 the initial Complaint, this Court stated: In the context of evaluating a legal malpractice claim brought by a former criminal defendant, the Court of Appeal has stated that claims for “fraud, intentional misrepresentation, concealment, deceit, constructive fraud, negligent representation, negligence, breach 0f fiduciary duty, intentional infliction of emotional distress, abuse of process, [and] breach of contract” were all “properly characterized as claims for legal malpractice” because these claims all involved the right to competent legal representation. (Khodayari v. Mashbum (201 1) 200 Cal.App.4th 1184, 1190 (“Khodayari”).) This supports the conclusion that the instant claim of breach of contract is also properly characterized as a legal malpractice claim because it involves the Defendant’s alleged failure to perform his job as an attorney. The Court notes further that a Defendant’s liability for professional negligence does not ordinarily extend beyond the client. (St. Paul Title C0. v. Meier (1986) 181 Ca1.App.3d 948, 950.) (RJN, EX. 2, Min. Order 11/30/2021 at p. 3.) In an effort to plead around this defect in the FAC, Plaintiffnow alleges she “made an agreement With Defendant. . . that he would get criminal charges against her great grandson dropped in exchange for payment”; that she “expected that defendant Hingle would get the charges against Willie dropped as he promised; however, “the charges against Willie were not dropped. And plaintiff is informed and believes that Hingle performed substantially no legal services for Willie's benefit.” (FAC, 11W 2, 13, 14.) While Plaintiffnow alleges Defendant “promised to get the charges against her grandson dropped in exchange for payment” rather than Defendant “represented he would provide legal services in exchange for payment,” the wrong complained of remains Defendant’s purported failure to provide legal services t0 Willie as promised. As such, Plaintiff has not pleaded around the defects in the initial Complaint. Plaintiff” s attempt to separate Defendant’s purported “promise to get the charges against Willie dropped” from the Retainer Agreements does not change this analysis. “[A] plaintiffmay not discard factual allegations 0f a prior complaint, or avoid them by contradictory averments, in a superseding amended pleading.” (Continental Ins. C0. v. Lexington Ins. C0. (1997) 55 Ca1.App.4th 637, 646.) lO ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 “[W]here an amended complaint attempts t0 avoid defects set forth in a prior complaint by ignoring them[,] [t]he court may examine the prior complaint to ascertain Whether the amended complaint is merely a sham.” (Berman v. Bromberg (1997) 56 Ca1.App.4th 936, 946) “A pleader may not attempt to breathe life into a complaint by omitting relevant facts which made his previous complaint defective.” (Ibid) Thus, Plaintiff cannot plead around the fact that she was not Defendant’s client and that she paid Defendant t0 represent Willie under the written Retainer Agreements. 2. The primary right involved in all causes 0f action 0f the FAC is the right t0 competent legal representation. Although Plaintiff sues Defendant for breach 0f contract, elder abuse, fraud, negligent misrepresentation and IIED, her claims are more properly characterized as legal malpractice. “[T]he nature of a cause of action does not depend 0n the label the plaintiff gives it or the relief the plaintiff seeks but 0n the primary right involved.” (Bird, Marella, Boxer & Wolpert v. Superior Court (2003) 106 Ca1.App.4th 419, 427.) When the primary right involved is the right t0 competent legal representation, then the cause 0f action is for professional negligence. (Ibid) Here, Plaintiff complains Defendant promised to get the charges against Willie dropped in exchange for payment but failed to do so even though he was paid. In other words, Defendant did not provide the legal services Plaintiff paid him for because he failed to obtain the result he purportedly promised. The only wrongful conduct alleged in the FAC relates solely and directly to Defendant’s failure t0 perform his job as an attorney. Consequently, all of Plaintiff’ s claims are for professional negligence. 3. Plaintiff does not have standing t0 bring a claim for professional negligence. 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 Ca1.App.3d 948, 950.) The California Supreme Court has reiterated "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 lO ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 priVity of contract." (Borissoflv. Taylor Faust (2004) 33 Ca1.4th 523, 530.) “It is the unique quality of legal services, the personal nature of the attorney's duty to the client and the confidentiality 0f 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 Ca1.4th 274, 285.) An “attorney owes a duty 0f 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 to the client, the attorney's one intended beneficiary.” (Id. at p. 286.) Here, the FAC does not allege that Defendant legally represented Plaintiff, and the Retainer Agreements, 0fWhich this Court has previously taken judicial notice, make clear that an attorney-client relationship existed solely between Defendant and Willie. As a result, Plaintiff does not have standing t0 bring any 0f the causes of action in the FAC. This defect cannot be cured by amendment so demurrer t0 the entire FAC should be sustained Without leave to amend. B. The Court should sustain Defendant’s demurrer t0 the First Cause 0f Action for Breach 0f Contract without leave to amend pursuant to CCP § 430.10(e). “T0 prevail 0n a cause 0f action for breach 0f contract, the plaintiff must prove (1) the contract, (2) the plaintiff’ s performance 0f the contract 0r excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage t0 the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) Here, Plaintiff has failed to properly plead the first element for breach 0f 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 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. The California Supreme Court held that whether the defendant in a specific case “will be held liable t0 a third person not in priVity is a matter of policy and involves the lO ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 balancing of various factors,” including: (1) “the extent t0 which the transaction was intended to affect the plaintiff,” (2) “the foreseeability ofharm t0 [the plaintiffl,” (3) “the degree 0f certainty that the plaintiff suffered injury,” (4) “the closeness 0f the connection between the defendant's conduct and the injury suffered,” (5) “the moral blame attached t0 the defendant's conduct,” and (6) “the policy 0f preventing future harm.” (Biakanja v. Irving (1958) 49 Cal.2d 647, 650 (“Biakanja”).) In this matter, none 0f the Retainer Agreements were intended t0 affect Plaintiff-she was not a client nor an intended beneficiary. The Retainer Agreements affected Plaintiff only to the extent that she agreed t0 pay for Willie’s attorney’s fees, and the only foreseeable harm t0 her was that she would be dissatisfied With the legal services provided t0 Willie. But as a third-party payor, Plaintiff did not have any right under the Retainer Agreements to dictate Defendant’s representation of Willie. Moreover, as argued above, although labeled as a breach 0f contract claim, Plaintiff’ s claim is for professional negligence and Plaintiff has n0 standing t0 bring such a claim. Accordingly, the First Cause of Action (“COA”) fails to state a cause 0f action for which relief can be granted pursuant to CCP § 430. 10(6). These defects cannot be cured by amendment because Plaintiff cannot plead around the fact that she was not Defendant’s client and was not the real party in interest under the Retainer Agreements. Suitably, Defendant’s demurrer to the First COA should be sustained without leave to amend. C. The Court should sustain Defendant’s demurrer t0 the Second COA for Elder Abuse Without leave t0 amend pursuant t0 CCP § 430.10(e). The Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) (Act) permits "private, civil enforcement 0f laws against elder abuse and neglect." (Delaney v. Baker (1999) 20 Ca1.4th 23, 33.) [T]he Act provides that “financial abuse” of an elder occurs When “a person 0r entity. . . [flakes [or] assists in taking. . . real or personal property 0f an elder for a wrongful use or With intent t0 defraud, 0r both” (§ 15610.30, subds. (a)(l) & (2), italics added) 0r “by undue influence.” (§ 15610.30, subd. (a)(3), italics added.) It provides that someone “takes” such property when the elder “is deprived 0f any property right, including by means 0f an agreement. . . .” (§ 15610.30, subd. (c), italics added.) -8- lO ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 (Bounds v. Superior Court (KMA Group) (2014) 229 Ca1.App.4th 468, 472 (“Bounds”).) Under 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 0f Defendant Hingle and Does 1-10's acts in fraudulently inducing Rita t0 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 01d. 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 15610.07. Defendants knew Rita was an elder. (FAC, 11 33.) 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 0r mental suffering in Violation 0f Welfare & Institutions Code § 15610.07(a) and Plaintiff is entitled to the remedies provided by the Elder Abuse Act. (FAC, 1] 34.) These allegations are vague, Wholly conclusionary, and do not amount t0 a claim for elder abuse. 99 C6 Plaintiff does not allege that Defendant took property from her for a “wrongful use, with intent t0 defraud,” 0r “by undue influence.” A taking is for a “wrongful use” when a party “knew 0r should have known that [its] conduct is likely t0 be harmful t0 the elder. . . adult.” (§ 15610.30, subd. (b).) “Undue influence consists: [fl] 1. In the use, by one in Whom a confidence is reposed by another, 0r Who holds a real or apparent authority over him, of such confidence 0r authority for the purpose of obtaining an unfair advantage over him; [1]] 2. In taking an unfair advantage of another's weakness 0f mind; or, [11] 3. In taking a grossly oppressive and unfair advantage 0f another's necessities or distress.” (Civ. Code, § 1575.) (Bounds, supra, 229 Ca1.App.4th at p. 478-79.) Nowhere in the FAC does Plaintiff allege Defendant knew or should have known his conduct would be harmful to her. Neither does she allege Defendant put himself in a position ofpower over her to gain unfair advantage 0f her, that he took unfair advantage of her weakness 0f mind, or that he took grossly oppressive and unfair advantage 0f her necessities 0r distress. lO ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 Likewise, acts of simple or even gross negligence will not justify the remedies under the Act. (Berkley v. Dowds (2007) 152 Ca1.App.4th 518, 529 citing Welf. Inst. Code § 15610.07.) A claim for financial elder abuse requires a showing of willful misconduct by the defendant. T0 state a claim for willful misconduct, Plaintiff must show “(1) actual 0r constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed t0 a possible, result 0f the danger, and (3) conscious failure t0 act t0 avoid the peril.” (Simmons v. S. Pac. Transp. C0. (1976) 62 Cal. App. 3d 341, 360, citations omitted.) Here, Plaintiff has merely pleaded that Defendant promised to get the charges against Willie dropped in exchange for payment, collected said payment, but failed t0 get the charges dropped. Allegations regarding Defendant’s intent, apprehension ofharm to Plaintiff, 0r failure to act t0 avoid such harm are completely absent from this cause of action. Furthermore, Plaintiff does not allege any causal link between Defendant’s purported wrongful conduct and her alleged injuries. A plaintiff must allege facts demonstrating that the abuse caused the elder to suffer physical harm, pain or mental suffering such that the causal link between the abuse and injury is specifically alleged. (Carter v. Prime Healthcare Paradise Valley LLC (201 1) 198 Ca1.App.4th 396, 407.) “[W]here the pleaded facts 0f [misconduct] and injury do not naturally give rise to an inference 0f causation the plaintiff must plead specific facts affording an inference the one caused the others.” (Berkley, supra, 152 Cal.App.4th at p. 528.) Lastly, as argued above, all the allegations 0f the FAC amount to a claim of legal malpractice for which Plaintiff does not have standing. Plaintiff s claim for elder abuse does not originate in circumstances independent of her status as a third-party payor to the Retainer Agreements. “Nothing in the Act, its legislative history, or the cases interpreting the measure suggest it was designed to confer 0n elders broader standing to sue than allowed by the legal principle applied in Nelson [V. Anderson (1999) -10- lO ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 72 Ca1.App.4th 111, 124]1.” (Hilliard v. Harbour (2017) 12 Cal.App.5th 1006, 1015.) That transactions entered by elders should be subj ect t0 special scrutiny, does not mean Defendant, as an attorney, owed special duties to Plaintiff, different from those to other third-party payors, simply because she is an elder. (See Id. [“It is one thing to say that financial agreements entered into by elders should be ‘subject t0 special scrutiny’ [citation], but quite another t0 suggest. . . that a lender has duties t0 a borrower who resides in this state and is "65 years 01d 0r older" (§ 15610.27) different from those it owes other borrowers . ”] .) Given Plaintiff’ s failure t0 plead a claim for elder abuse independent of her malpractice claims, the FAC cannot be cured by amendment. Defendant therefore requests the Court sustain this demurrer t0 the Second COA pursuant to CCP § 430.10(e) without leave to amend. D. The Court should sustain Defendant’s demurrer t0 the Third COA for Fraud without leave t0 amend pursuant t0 CCP § 430.10, subd. (e). Plaintiff does not have a claim for fraud because the gravamen 0f the FAC involves the right to competent legal representation. As discussed above and as the Court pointed out: In the context of evaluating a legal malpractice claim brought by a former criminal defendant. . . claims for “fraud, intentional misrepresentation, concealment, deceit, constructive fraud, negligent representation, negligence, breach 0f fiduciary duty, intentional infliction of emotional distress, abuse 0f process, [and] breach of contract” were all “properly characterized as claims for legal malpractice” because these claims all involved the right to competent legal representation. (RJN, EX. 2, Min. Order 11/30/2021 at p. 3 citing Khodayari, supra, 200 Ca1.App.4th at p. 1190.) Plaintiff does not allege any facts independent of Defendant’s legal representation of Willie which would constitute a claim for fraud. Consequently, the defects in the FAC cannot be cured by amendment and demurrer to Plaintiff s Third COA should be sustained Without leave t0 amend. 1 In analyzing Whether a claim for elder abuse was personal or derivative, the court in Nelson stated: “an individual cause 0f action exists only if the damages were not incidental t0 an injury t0 the corporation. [Citation] The cause of action is individual, not derivative, only Where it appears that the injury resulted from the Violation 0f some special duty owed the stockholder by the wrongdoer and having its origin in circumstances independent 0f the plaintiffs status as a shareholder.” (Internal quotations omitted.) -11- lO ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 E. The Court should sustain Defendant’s demurrer t0 the Fourth COA for Negligent Misrepresentation without leave to amend pursuant to CCP § 430.10 subd. (e). “T0 be actionable, a negligent misrepresentation must ordinarily be as to past or existing material facts. Predictions as t0 fiJture events, or statements as t0 future action by some third party, are deemed opinions, and not actionable fraud.” (Tarmann v. State Farm Mut. Auto. Ins. C0. (1991) 2 Ca1.App.4th 153, 159 (“Tarmann ”).) A promise of future performance cannot be basis for negligent misrepresentation. (Stockton Mortgage, Inc. v. Tope (2014) 233 Cal App.4th 437, 458.) Additionally, “[t]here is no recognized cause 0f action for a negligent misrepresentation based on a false promise.” (Hooked Media Grp. v. Apple Inc. (2020) 55 Ca1.App.5th 323, 331.) “An action based on a false promise is simply a type of intentional misrepresentation. . . . The specific intent requirement also precludes pleading a false promise claim as a negligent misrepresentation.” (Tarmann, supra, 2 Cal.App.4th at p. 1 59 .) Here, Plaintiff has not pleaded that Defendant made a misrepresentation as to a past or existing material fact. She has only pleaded that Defendant made a false promise to provide competent legal representation to Willie. As such, Plaintiff’s claim is for professional negligence, which she lacks standing for. This defect cannot be cured by amendment; therefore, demurrer t0 the Fourth COA should be sustained Without leave t0 amend. F. The Court should sustain Defendant’s demurrer t0 the Fifth COA for Intentional Infliction of Emotional Distress without leave t0 amend pursuant t0 CCP § 430.10(e). As discussed above, because the gravamen 0f the FAC involves the right to competent legal representation, Plaintiff’ s claim for IIED must fail. Plaintiff does not allege any facts constituting a claim for IIED independent from her claim for professional negligence. “A cause 0f action for [IIED] exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, 0r reckless disregard 0f the probability 0f causing, emotional distress; (2) the plaintiff’ s suffering severe or extreme emotional distress; and (3) actual and proximate causation 0f the emotional distress by the -12- lO ll 12 13 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 defendant’s outrageous conduct.’ A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds 0f that usually tolerated in a civilized community.” And the defendant’s conduct must 9” be ‘intended to inflict injury or engaged in with the realization that injury will result. (Hughes v. Pair (2009) 46 Ca1.4th 1035, 1050-1051.) Here, the “outrageous conduct” complained of is Defendant’s collection of fees pursuant t0 the Retainer Agreements under Which Plaintiff was a third-party payor and Defendant’s legal representation 0f Willie. Such conduct cannot be said t0 be aimed at 0r likely t0 cause injury to Plaintiff and simply does not amount to a claim for IIED. Accordingly, demurrer to the Fifth COA should be sustained without leave t0 amend. V. CONCLUSION For the reasons set forth above, Defendant respectfully requests the Court sustain his demurrer to the entire Verified First Amended Complaint and each cause of action set forth therein. Date: 01/03/2022 FLORES & BARRIOS Sidney C. Flores Attorney for Defendant -13- lO ll 12 13 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 DECLARATION OF DEMURRING PARTY RE: MEET AND CONFER I, Sidney C. Flores, declare: 1. I am the attorney for Defendant Michael Hingle. 2. I was served With the First Amended Verified Complaint (FAC) by mail on December 10, 2021. 3. On December 30, 2021, I met and conferred with Margaret Schneck, counsel for Plaintiff Rita King, by telephone to discuss my objections t0 the FAC. Ms. Schneck understood the basis for my obj ections and that I would be moving forward With demurrer t0 the FAC as there is no alternative for resolution ofmy obj ections. I declare under penalty 0f perjury under the laws of the State of California that the information above is true and correct. Date: 01/03/2022 Sidney C. Flores Attorney for Michael Hingle
