Response ReplyCal. Super. - 6th Dist.March 26, 2021lO ll 12 13 l4 l5 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 21 CV381 370 Santa Clara - Civil Sidney C. Flores, SBN 64082 E'ec"°"'°a"y Wed FLORES & BARRIOS by Superior Court of CA, 601 N. First St. Ste. 200 County 0f Santa Clara, F??? {2%e§)%329§£1“1)3 on 10/5/2021 7:35 PM 63 ' Reviewed B : L. N u en Fa)“ (408) 2923421 Case #21cvgs137g y fl 1 f h .ores aW lrm@ya 00 00m Envelope: 7406190 Attorney for Michael E. Hingle SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CIVIL UNLIMITED Case No.2 21CV381370 REPLY TO OPPOSITION TO DEMURRER TO VERIFIED COMPLAINT Date: October 12, 2021 Time: 9:00 AM Dept: 19 RITA KING, Plaintiff, VS. MICHAEL E. HINGLE and DOES 1 t0 10, Defendants. vvvvvvvvvvvvvvvvv Date Complaint was filed: 03/26/2021 Defendant, Michael Hingle, submits herein his reply t0 Plaintiff’s Opposition t0 Demurrer t0 Verified Complaint (“Opposition”). lO ll 12 13 l4 l5 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 A. Rita King Has N0 Standing t0 Sue for Breach 0f Contract. Plaintiff insists she has standing t0 sue for breach of contract as a third-party payor. In support, at p. 3, Footnote 1 of her Opposition, Plaintiff cites an article entitled “When a third-party pays legal fees.” This article cites n0 legal authority and is aimed at providing advice to attorney practitioners. It does not support Plaintiff s position. There simply was n0 independent agreement between Plaintiff and Defendant, and the Complaint does not allege there was. Plaintiff argues she is a real party in interest because “[i]f Hingle were trying t0 collect payment from [her], he would undoubtedly argue she breached her agreement. . .” (Opposition at p. 4, lines 3-4.) “Because Rita King is the only person who paid Hingle for this work, she is the only person who has the right t0 enforce that obligation. . .” (Id. at p. 4, lines 8-9.) These assertions are misguided and contrary t0 the terms 0f the agreements and Rules 0f Professional Conduct. Section 13 0f the Retainer Agreements states: “Client will remain responsible for and will pay attorney’s bills in the event that third party payor fails for any reason t0 pay attorney’s bills as they become due;” and “Third Party Payor acknowledges that it has n0 right t0 direct Attorney’s handling 0f the Client’s matter.” Thus, if there was a fee dispute in Defendant’s representation 0f Willie, Defendant can only sue Willie; and if there was a dispute over Defendant’s handling 0f Willie’s case, as the case is here, only Willie can enforce his substantive contract rights. The cases cited in Plaintiff s Opposition supports Defendant’s position: It is well settled that only parties With a real interest in a dispute have standing to seek its adjudication. (Code Civ. Proc., § 367) A real party in interest ordinarily is defined as the person possessing the right sued upon by reason of the substantive law. [Citation] . . . "The right to relief . . . goes t0 the existence 0f a cause of action . . . [w]here the complaint states a cause 0f action in someone, but not in the plaintiff, a general demurrer for failure t0 state a cause 0f action Will be sustained." [Citation] (Killian v. Millard (1991) 228 Cal.App.3d 1601, 1605.) The substantive law at issue here is whether Defendant breached the Retainer Agreements by failing t0 perform his duties t0 Willie. In alleging that Defendant failed to earn the fees charged for lO ll 12 13 l4 l5 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 representing Willie, the gravamen of Plaintiff’s complaint sounds in legal malpractice, which Defendant has shown precludes claims from third parties like Plaintiff, except in limited circumstances. (St. Paul Title C0. v. Meier (1986) 181 Cal.App.3d 948, 950.) The real party in interest is one "having an actual and substantial interest in the subj ect matter of the action and Who would be benefitted 0r injured by the judgment in the action." [Citation] "[A]n action not founded upon an actual controversy between the parties t0 it, . . Will not be entertained; and the same is true ofa suit the sole object 0f which is t0 settle rights 0fthim’pers0ns who are notparties. " [Citation] . . . We shall conclude that neither the County 0fAlameda nor Don Perata has standing to assert the claims of crime Victims . . . because the substantive right to make a claim for restitution belongs only t0 a crime Victim. . . . (County ofAlameda v. State Bd. OfCom‘rol (1993) 14 Ca1.App.4th 1096, 1103.) Here, the substantive right t0 sue for breach 0f contract under the Retainer Agreements belongs solely to Willie King. B. Plaintiff Lacks Standing to Sue for Violations 0f the State Bar Act and Rules 0f Professional Conduct. Just because the State Bar Act (“SBA”) and Rules 0f Professional Conduct (“RPC”) are intended t0 regulate the profession and protect the public, does not mean that anyone can sue for Violation thereof. Plaintiff has failed to cite any legal authority giving her standing t0 sue Defendant for Violation of the SBA and RPC. By the plain language in Business and Professions Code (“BPC”) § 6148, an attorney’s duties are owed to the client.1 Failure t0 comply With § 6148 “renders the agreement voidable at the option 0f the client.” (BPC § 6148(0), emphasis added.) Plaintiff is a third party payor, not a client. “A lawyer’s responsibilities in a matter are owed only t0 the client except where the lawyer also represents the payor in the same matter.” (RPC, Rule 1.8.6, Comment 1.) Accordingly, Plaintiff has no standing under BPC § 6148 and no standing t0 sue for Violations of Defendant’s duties t0 Willie under the RPC. C. Plaintiff’s Claim for Elder Abuse Based 0n Fraud is Wholly Conclusory. 1 “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 0r representative. (BPC § 6148, emphasis added.) -3- lO ll 12 13 l4 l5 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 Plaintiff alleges Defendant fraudulently induced her “t0 sign multiple invalid, unconscionable and coercive fee agreements . . . ” and that Defendant is “responsible for elder abuse because [his] treatment of Rita. . . resulted in physical harm and or pain and 0r mental suffering. . . .” (Complaint atfl 32 - 33.) These allegations are vague and Wholly conclusory. Plaintiff does not make factual allegations as t0 the “invalidity, unconscionability, 0r the coerciveness” 0f the agreements, nor does she plead sufficient facts regarding Defendant’s alleged fraud 0r mistreatment 0f Rita 0r the physical harm, pain and mental suffering that resulted therefrom. “[A]llegations of fraud involve a serious attack on Character, and fairness t0 the defendant demands that he should receive the fullest possible details of the charge in order t0 prepare his defense. . . . This particularity requirement necessitates pleading facts which show how, when, where, t0 whom, and by what means the representations were tendered.” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) D. Plaintiff’s Claim for Intentional Infliction of Emotional Distress is Barred by the Statutes 0f Limitations. A cause of action for IIED accrues “once the plaintiff suffers severe emotional distress as a result 0f outrageous conduct 0n the part 0f the defendant.” (Cantu v. Resolution Trust Corp. (1992) 4 Ca1.App.4th 857, 889.) Plaintiff alleges that Defendant used the Retainer Agreements t0 commit a fraud on her. The Retainer Agreements were executed 0n July 20, 2017, December 12, 2017 and December 14, 2017 (Complaint, W 7, 16, 19-20); and from July 20, 2017 t0 December 12, 2017, Plaintiff alleges Defendant did substantially n0 legal work for her grandson (Complaint, fl 14). She further alleges she suffered severe emotional distress caused by the actions and coverups by Defendant. (Complaint, 1] 50.) Thus, it is clear from the face of the Complaint that Plaintiff s claim for IIED accrued, at latest, by December 2017 in conjunction With Defendant’s alleged “outrageous conduct.” Because a claim for lO ll 12 13 l4 l5 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 IIED involves injury to the person, it must be brought Within two years. (Code CiV. Proc. § 335. 1 .) As such, Plaintiff s IIED claim expired in December 2019.2 E. Plaintiff’s Claim for Fraud is not Pleaded With Sufficient Particularity. The elements 0f fraud are: “[1] a representation, usually of fact, [2] which is false, [3] knowledge 0f its falsity, [4] intent to defraud, [5] justifiable reliance upon the misrepresentation, and [6] damage resulting from that justifiable reliance.” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 72-73.) “Every element of the cause 0f action for fraud must be alleged in the proper manner. . . .” (Id. at p. 73.) “[F]raud must be specifically pleaded (who said what to whom and when and where) and the circumstances ofdiscovery 0f the fraud must be pleaded (when, by Whom, Where and how).” (Id., at p. 64, emphasis added.) Here, Plaintiff failed t0 plead facts regarding her information and belief that Defendant misrepresented the preliminary hearing (See Complaint, 11 18). She also does not plead how and When she discovered Defendant’s “fraud.”3 Further, at least as to the third agreement, Plaintiff fails t0 plead justifiable reliance; this omission is significant given Plaintiff s knowledge of Defendant’s “fraud” under the first two agreements. F. Plaintiff has Not Properly Pleaded a Claim for Negligent Misrepresentation. “T0 be actionable, a negligent misrepresentation must ordinarily be as t0 past 0r existing material facts. Predictions as to future events, or statements as to 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).) Here, Plaintiff alleges Defendant misrepresented that he would competently represent Willie through preliminary hearing and trial, and claims her fraud allegations (Complaint 1W 2 At p. 8 of her Opposition, by arguing that Defendant has only made “self-serving presumptions” about Plaintiff” s injuries, Plaintiff essentially concedes the Complaint does not allege how and When Plaintiff” s injury occurred. The fact that Defendant must guess as t0 Plaintiff” s alleged IIED injuries goes to the uncertainty of Plaintiff’ s IIED claim. 3 This is significant given that Plaintiff was not in an attorney-client relationship with Defendant and did not have personal knowledge 0f his services to Willie. 10 ll 12 l3 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 38-42) support her negligent representation claim. However, Defendant’s alleged misrepresentation does not involve a past or existing material fact. Rather, it involves a promise t0 perform at some future time. (See Stockton Mortgage, Inc. v. Tape, 233 Cal. App. 4th 437, 458 [a promise of fiJture performance cannot be basis for negligent misrepresentation].) Additionally, “[t]here is n0 recognized cause 0f action for a negligent misrepresentation based 0n a false promise.” (Hooked Media Grp. v. Apple Inc. (2020) 55 Cal.App.5th 323, 33 1 .) “An action based 0n 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. 159.) Accordingly, Plaintiff has failed t0 state a cause of action for negligent misrepresentation. G. Plaintiff has Not Properly Pleaded a Claim for IIED. “A cause 0f action for intentional infliction 0f emotional distress exists When there is ‘(1) extreme and outrageous conduct by the defendant With the intention 0f causing, 0r reckless disregard of the probability of causing, emotional distress; (2) the plaintiff s suffering severe 0r extreme emotional distress; and (3) actual and proximate causation 0f the emotional distress by the defendant’s outrageous conduct.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.) The Complaint is completely devoid of facts relating to the second and third elements of IIED. Plaintiff only makes conclusory statements that she has suffered severe emotion distress. She does not allege how and when her injuries occurred, Which forces Defendant t0 make guesses t0 their occurrence and their actual and proximate cause. Date: 10/5/2021 Sidney C. Flores, Attorney for Michael Hingle
