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 A. Flo 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 3/1 0/2022 5:39 PM 6 3 ' Reviewed B : A. Floresca Fa)“ (408) 2923421 Case #21 cv§8137ofl 1 f h .ores 3W 11m@ya 00 com Envelope: 8484531 Attorney for Michael E. Hingle SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA Case No.: 21CV381370 RITA KING, REPLY TO OPPOSITION TO DEMURRER TO VERIFIED FIRST AMENDED COMPLAINT Plaintiff, VS. Date: March 17, 2022 Time: 9:00 AM Dept: 19 MICHAEL E. HINGLE and DOES 1 t0 10, Defendants. VVVVVVVVVVVV Date Complaint was filed: 03/26/2021 Defendant, Michael Hingle (“Hingle”), hereby submits his reply to Plaintiff” s Opposition to Demurrer to Verified First Amended Complaint (“Opposition”). A. The Primary Right Being Sued Upon is the Right t0 Competent Legal Representation. In her Opposition, Plaintiff insists the primary right being sued upon in her First Amended Complaint (“FAC”) is not the right t0 competent legal representation, but the right t0 “get What she was promised” 0r “paid for.” (Opposition at p. 4-5.) Plaintiff contends she is the real party in interest because Hingle promised her that he would get the charges against her grandson, Willie, dropped in exchange for payment, that she made said payment, but the charges against her grandson were never dropped. Although Plaintiff has worded her allegations differently from that in her initial Complaint, the wrong complained of remains Hingle’s purported failure to d0 his job as Willie ’s attorney. esca lO ll 12 13 l4 l5 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 Plaintiff” s attempt to separate Hingle’s purported promise from the written retainer agreements does not change this analysis. Plaintiff clearly pleaded throughout her initial Complaint that she paid Hingle to be Willie ’s attorney pursuant to the written retainer agreements Which she signed as a third- parly payor. She cannot simply disregard these allegations. “[A] plaintiffmay not discard factual allegations of a prior complaint, 0r avoid them by contradictory averments, in a superseding amended pleading.” (Continental Ins. C0. v. Lexington Ins. C0. (1997) 55 Ca1.App.4th 637, 646.) “A pleader may not attempt to breathe life into a complaint by omitting relevant facts which made his previous complaint defective.” (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 946.) Moreover, Plaintiff has been unable to avoid these allegations even in her FAC and Opposition: “[Plaintiff] signed a written fee agreement t0 pay Hingle $20,000. . . (FAC $2)” (Opposition at p. 2.) “In Agreement 1, Rita agreed t0 pay a flat fee 0f $20,000 in advance 0f services t0 be rendered by Hingle.” (FAC 1] 9, emphasis added.) “After she paid him $20,000 pursuant t0 the first agreement, she paid him more money for What his second agreement describes as ‘representation necessary t0 process the case through preliminary examination.’ (FAC 1] 17)” (Opposition at p. 6.) Simply put, Plaintiff cannot escape the fact that she was a third-party payor t0 the retainer agreements between Hingle and Willie. She cannot change her status as a third-party payor 0r put herself in priVity of contract With Hingle merely by pleading that Hingle promised to get the charges against Willie dropped. Plaintiffs own arguments demonstrate that the primary right involved in the FAC is the right t0 competent legal representation: “Rita King alleges Hingle took and kept her money without earning it. . . .” (Opposition at p. 7, emphasis added.) “Hingle agreed in writing to perform services and took Rita King's money as payment. . . .” (Id. at p. 8, emphasis added.) These allegations relate directly to the legal services Hingle provided (or allegedly failed to provide) to Willie. Consequently, the claims asserted by Plaintiff belong solely t0 Willie and the entire FAC must fail. "An attorney's liability for lO ll 12 13 l4 l5 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 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.) Plaintiff attempts t0 distinguish this case from Khodayari v. Mashburn (201 1) 200 Cal.App.4th 1184 but fails to compare the facts 0f each case. That’s because a proper comparison will lead to the inevitable conclusion that this case is about legal malpractice. In Khodayari, the court found that although the appellant (the aggrieved client) gave various labels to his causes 0f action, “the alleged facts supporting the claims show that all 0f them are based 0n legal malpractice.” (Id. at p. 1191 .) “His complaint alleges that respondent’s [the attorney] deficient performance in the restitution and probation Violation proceedings caused the court to find him in Violation of probation, resulting in his being incarcerated longer than was necessary.” (Ibid.) The complaint also alleges that “respondent induced appellant's brother t0 pay restitution 0n appellant's behalf, Without appellant's permission, and did not inform the court that appellant was willing t0 make small installment payments.” The court found that t0 ‘6 the extent appellant’s claims are based 0n these allegations, the primary right is the right to competent representation, . . .” (Id. at p. 1192.) In Lynch v. Warwick (2002) 95 Ca1.App.4th 267, a case the court in Khodayari found instructive, the plaintiffWho sued his former attorney alleged that his former attorney “failed t0 interview witnesses, failed t0 prevent the loss 0r destruction 0f evidence, and otherwise failed t0 prepare for trial.” (Khodayari, supra, 200 Cal.App.4th at p. 1190.) He labeled his causes 0f action legal malpractice, breach 0f contract, and breach 0f fiduciary duty; but despite the labels, the court found all three claims t0 be based on his former attorney’s negligent or inadequate representation, and accordingly ruled that all claims were legal malpractice claims requiring plaintiff to prove the actual innocence requirement. (119121.) lO ll 12 13 l4 l5 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 Here, like in Khodayari and Lynch, Plaintiff s claims are based 0n Hingle’s allegedly deficient performance as Willie’s criminal defense attorney. The FAC alleges that Hingle represented he would get the charges against Willie dropped in exchange for payment and that Rita paid him expecting him to get the charges dropped. (FAC 1] 13.) However, “the charges. . . were not dropped” and “Hingle performed substantially no legal services for Willie's benefit.” (FAC fl 14.) The FAC further alleges that Hingle represented he was “experienced in handling criminal defense cases and capable of advising and representing Willie King,” that he “had the expertise, staffing and experience to handle Willie's case,” and that Plaintiff relied 0n these representations in paying the legal fees Hingle demanded. (FAC fl 39.) ‘6However, Hingle’s representations were false” because he “failed t0 perform even basic evaluation 0f the charges against Willie, failed t0 contact 0r interview Witnesses and failed t0 maintain and preserve Willie's notes and papers. . . t0 assist with his defense,” and “did not prepare for trial and did not competently defend Willie King or provide him With even the most basic advice or counsel and did not maintain original notes and other file documents.” (FAC 11 40.) As a result, “Plaintiff was induced to pay [Hingle] and was thereby damaged in the amounts paid to [Hingle] for which Willie King received substantially n0 services 0r other benefit. . . .” (FAC 1] 43.) Clearly, these allegations are all based 0n Hingle’s purported failure t0 perform as Willie’s attorney. It thus should be questioned Why Willie, as the real party in interest, is not the party suing Hingle. Perhaps it is because Willie, as a former criminal defendant, would be required to prove actual innocence as a predicate t0 all his causes 0f action pursuant t0 Khodayari, et a1. Plaintiff, as a third-party payor, should not be allowed t0 circumvent this requirement. California’s policy against the assignability 0f legal malpractice claims is in place precisely to prevent lawsuits like this. “It is the unique quality 0f legal services, the personal nature 0f the attorney's duty t0 the client and the confidentiality of the attorney-client relationship that invoke public policy considerations in our lO ll 12 13 l4 l5 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 conclusion that malpractice claims should not be subj ect to assignment." (Musser v. Provencher (Cal. 2002) 28 Ca1.4th 274, 285.) At bottom, Plaintiff” s argument that the primary right involved in the FAC is the “right t0 get what she paid for” and not the “right t0 competent legal representation” is nonsensical. Plaintiff paid Hingle pursuant t0 the retainer agreements t0 provide legal services t0 Willie. Even if Hingle promised to get the charges against Willie dropped and Plaintiff paid him pursuant to that promise, that promise is fulfilled only through Hingle’s legal representation 0f Willie. That the promise was not fulfilled is a question about the competency 0f that legal representation. B. Plaintiff Fails t0 State a Claim for Breach 0f Contract. Plaintiff was not in privity of contract With Hingle and has cited no legal authority to support her claim for breach 0f contract against Hingle as a third-party payor. As argued above, Hingle’s alleged promise t0 get the charges against Willie dropped does not constitute an independent agreement between Plaintiff and Hingle separate from the written retainer agreements of Which this Court has taken judicial notice. The existence 0f such an agreement is inconsistent with the terms of the written retainer and the allegations of the initial Complaint, and therefore should be disregarded. “False allegations 0f fact. . . contrary t0 facts judicially noticed [citation], may be disregarded. . . ." (Hofman v. Smithwoods RV Park, LLC (2009) 179 Ca1.App.4th 390, 400.) C. Plaintiff Fails t0 State a Claim for Elder Abuse. Plaintiff fails t0 state a claim for elder abuse because the factual allegations 0n Which her claim is based arises from her status as a third-party payor to the retainer agreements. That Plaintiff happened to be an elder does not confer 0n her broader standing to sue than any other third-party payor. “Nothing in the Act, its legislative history, 0r the cases interpreting the measure suggest it was designed to confer on elders broader standing to sue than allowed by the legal principle applied in Nelson [v. Anderson lO ll 12 13 l4 l5 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 (1999) 72 Ca1.App.4th 111, 124].” (Hilliard v. Harbour (2017) 12 Ca1.App.5th 1006, 1015.) In analyzing Whether a claim for elder abuse was personal 0r derivative, the court in Nelson stated: An individual cause of action exists only if the damages were not incidental to 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 of some special duty owed the stockholder by the wrongdoer and having its origin in circumstances independent 0f the plaintiffs status as a shareholder. (Nelson v. Anderson (1999) 72 Ca1.App.4th 111, 124.) Here, Plaintiff has not alleged any injuries arising out 0f circumstances independent of her status as a third-party payor t0 the retainer agreements. Likewise, Plaintiff does not plead willful misconduct constituting elder abuse 0r a causal link between the willful misconduct and her alleged injuries. Although Plaintiff argues her allegations that Hingle “purposefully tricked her into paying unnecessary amounts. . . adequately pleads both willful misconduct and causation,” she does not explain what Hingle “tricked” her about. The FAC only alleges Hingle promised to get the charges against Willie dropped in exchange for payment and that the charges were never dropped. There is n0 allegation of willful misconduct: the FAC does not allege Hingle directed his actions towards Plaintiff with intent to cause her harm; nor does it allege Hingle made a misrepresentation 0f existing 0r past material fact constituting fraud. Plaintiff cannot just throw conclusory words around and expect t0 establish fraud 0r willful misconduct. D. Plaintiff Fails t0 State a Claim for Fraud. “A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent t0 deceive 0r induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages.” (Service by Medallion, Inc. v. Clorox C0. (1996) 44 Cal.App.4th 1807, 1816.) “The law is well established that actionable misrepresentations must pertain t0 past or existing material facts. Statements or predictions regarding future events are deemed t0 be mere opinions which are not actionable.” (Cansino v. Bank ofAmerica (2014) 224 Ca1.App.4th 1462, 1469, internal citation omitted.) lO ll 12 13 l4 l5 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 Here, Plaintiff’s claim for fraud fails because it is a disguised claim for legal malpractice (as argued above) and because she has not established all the elements of fraud. Plaintiff does not allege Hingle made a misrepresentation as to past or existing material facts and does not allege Hingle made a false promise to her, i.e. that he promised to provide legal services t0 Willie 0r get the charges against Willie dropped With n0 intention 0f doing so. E. Plaintiff Fails t0 State a Claim for Negligent Misrepresentation. As argued above, Plaintiff’s claim for negligent misrepresentation fails because it is a claim for legal malpractice for Which Plaintiff has n0 standing. Additionally, t0 be actionable, a negligent misrepresentation must ordinarily be as to past or existing material facts; there is no claim for negligent misrepresentation based on a false promise or a promise of future performance. (Tarmann v. State Farm Mut. Auto. Ins. C0. (1991) 2 Cal.App.4th 153, 159; Stockton Mortgage, Inc. v. Tape (2014) 233 Cal App.4th 437, 458.) Plaintiff’s Opposition completely ignores these authorities and argues “[t]he gravamen 0f Rita King's claim for negligent misrepresentation is that Hingle gave her false information t0 cause her to pay him additional funds.” (Opposition at p. 6.) This again begs the question: What was the false information? That Hingle would get the charges against Willie dismissed? That he would represent Willie through preliminary examination? That he would represent Willie through trial? None 0f this amounts to a misrepresentation 0f existing 0r past material facts, and therefore nothing alleged in the FAC amounts t0 actionable negligent misrepresentation. F. Plaintiff Fails t0 State a Claim for Intentional Infliction 0f Emotional Distress. Plaintiff argues she has sufficiently pled a cause of action for Intentional Infliction of Emotional Distress (“HED”) because “she alleges that the defendant intentionally abused his position as counsel for her grandson t0 induce her to make unnecessary payments t0 him and Without delivering on his promises.” (Opposition at p. 9.) This argument again demonstrates that the primary right involved here 10 ll 12 l3 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 is the right to competent legal representation. “Delivering on his promises” here means getting the charges against Willie dismissed by providing him with competent legal representation. Further, the FAC alleges Plaintiff’s mental distress was “compounded by dashed false hopes caused byfailure t0 defend 0r advance the defense 0f Willie King.” (FAC 1] 50, emphasis added.) Any way Plaintiff puts it, the wrong complained of is Hingle’s legal representation 0f her grandson and the results he allegedly failed t0 obtain through said representation. The right to sue Hingle for this wrong belongs solely to Willie King, and Rita, as non-client and third-party payor, has n0 right t0 assert Willie’s claim for him. Plaintiff has no claim for IIED independent from her claim for professional negligence which she asserts 0n Willie’s behalf. Accordingly, Plaintiff’s claim for IIED should be dismissed. Date: 03/10/2022 FLORES & BARRIOS Sidney C. Flores Attorney for Michael Hingle
