JANCE M. WEBERMAN A PROFESSIONAL LAW CORPORATION, ET AL. VS MIA ADLER OZAIR, AN INDIVIDUAL

Tentative Rulings

Case Number: 19STLC08413    Hearing Date: January 15, 2020    Dept: 94

Jance M. Weberman APC et al. v. Ozair

DEMURRER; MOTION TO STRIKE

(CCP §§ 430.31, et seq., 435-436)

TENTATIVE RULING:

Defendant Mia Adler Ozair’s Demurrer to First Amended Complaint is OVERRULED. Defendant’s Motion to Strike Portions of First Amended Complaint is GRANTED.

ANALYSIS:

On December 12, 2018, Plaintiffs Jance M. Weberman, A Professional Law Corporation and Jance M. Weberman, Esq. (collectively, “Plaintiffs”) and Defendant Mia Adler Ozair (“Defendant”) executed an Attorney-Client Contingent Fee Retainer Agreement (the “Retainer Agreement”) in connection with a slip and fall action.

On September 12, 2019, Plaintiffs filed an action for breach of the Retainer Agreement against Defendants. This Complaint was filed before a Notice of Client’s Right to Fee Arbitration (the “Arbitration Notice”) was provided to Defendant. On November 7, 2019, Plaintiffs filed a First Amended Complaint (“FAC”), which included the Arbitration Notice.

On December 5, 2019, Defendant filed a Demurrer to Plaintiffs’ First Amended Complaint (the “Demurrer”). That same day, Defendant filed a Motion to Strike a Portion of Plaintiffs’ First Amended Complaint (the “Motion”). On December 12, 2019, Plaintiffs filed an Opposition to Defendant’s Demurrer to First Amended Complaint and an Opposition to Defendant’s Motion to Strike Portions of Plaintiffs’ First Amended Complaint. Defendant filed a Reply brief on January 7, 2020.

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be.

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under Code of Civil Procedure, section 430.10 [grounds], section 430.30 [as to any matter on its face or from which judicial notice may be taken], and section 430.50 subdivision (a) [can be taken to the entire complaint or any cause of action within]. Specifically, a demurrer may be brought per Code of Civil Procedure, section 430.10 subdivision (e) if insufficient facts are stated to support the cause of action asserted. Per Code of Civil Procedure, section 430.10 subdivision (a) a demurrer may be brought where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. Furthermore, demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. (Code Civ. Proc., § 430.10, subd. (f).)

However, in construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) And, if the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control. Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92 subd. (c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, Code of Civil Procedure, section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41 subd. (a)(3).)

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (Code Civ. Proc., § § 435; 436, subd. (a).) Motions may also target pleadings or parts of pleadings that are not filed or drawn in conformity with applicable laws, rules or orders. (Code Civ. Proc., § 436 subd. (b).) Motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc., § 92 subd. (d).) A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer. (Pierson v. Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v. Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).) In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers. (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.) California’s policy of liberal construction applies to motions to strike. (Code Civ. Proc., § 452; see also Duffy v. Campbell (1967) 250 Cal.App.2d 662, 666 (noting that courts must resolve all reasonable doubts in favor of the pleading when considering a motion to strike).) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (Code Civ. Proc., § 436.)

Finally, CCP section 435.5 requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).)

The Demurrer and Motion to Strike filed on December 5, 2019 are accompanied by a meet and confer declaration pursuant to Code of Civil Procedure section 430.41. (Taylor Decl., ¶ 3, Exhs. A, B, C.) Defendant’s counsel requested by email that he and Plaintiffs’ counsel speak to discuss the matter October 17, 2019, but received no response. (Id., Exh. A.) Defense counsel followed-up on the October 17, 2019 email but received no response. (Id.)

Defendant alleges that Plaintiffs FAC fails to state facts sufficient to constitute a cause of action for breach of contract.

“To establish a cause of action for breach of contract, the plaintiff must plead and prove (1) the existence of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damages to the plaintiff. [Citation.] ‘In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.’ [Citation.]” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.) When the dispute arises from a contract between an attorney and client over fees, Business and Professions Code § 6201 requires an attorney to send written notice to the client of his or her right to fee arbitration before an action is initiated against that client. (Bus. & Prof. Code, § 6201, subd. (a).) Failure to give such notice of arbitration is a ground for dismissal. (Id.) (Italics added.)

Defendant does not allege Plaintiffs fail to plead an element of cause of action. Indeed, Defendant does not allege a contract did not exist, that the Plaintiff did not perform or was not excused, that the Defendant did not breach, or that Plaintiff was not damaged as a result of the alleged breach. Rather, she argues that Plaintiffs’ cause of action fails because they failed to give the required notice to Defendant. (Demurrer, p. 4.) Defendant argues that because Plaintiffs did not serve her with the Arbitration Notice before any action was filed, and was provided to Defendant over six weeks after, the Court should exercise its discretion and sustain this Demurrer.

However, demurrers can only be used to challenge defects that appear on the face of the pleading and no extrinsic evidence can be considered. (Blank v. Kirwan (1985) 39 Cal.3d 311.) Plaintiff’s FAC alleges (1) a contract existed between the parties, the Retainer Agreement (FAC, ¶ 6), (2) that Plaintiffs provided Defendant with legal services as agreed (Id., ¶¶ 8-11), (3) that Defendant breached the Retainer Agreement when she refused to pay Plaintiffs (Id., ¶¶ 11-12), and (4) damages in the amount of $3,333.33. (Id., p. 4:24.). In addition, Plaintiffs’ FAC demonstrates that Defendant did eventually receive notice of the right to arbitrate and that the FAC informed Defendant that “since Plaintiffs have already filed the lawsuit, [Defendant] may have this lawsuit postponed until after [Defendant] has filed her application for arbitration under this program.” (FAC, ¶ 14 and Exh. B.)

Thus, because Plaintiffs’ FAC alleges sufficient facts to state a cause of action for breach of contract, Defendant’s Demurrer is OVERRULED.

Defendant moves to strike Plaintiffs’ prayer for relief for “reasonable attorney’s fees in the amount of $15,000.00 or according to proof” on page 5, line 2 of the FAC. Defendant argues that the Retainer Agreement does not contain a provision for attorney’s fees in connection with the breach of contract claim they bring against Defendant. (Mot., p. 3). Defendant further argues that absent an authorizing statute or an agreement by the parties, allowing Plaintiffs to recover attorney’s fees would contradict the American rule that parties to a litigation must pay for their own attorney’s fees. (Mot., 5.) Plaintiff relies on three provisions in the Retainer Agreement.

First, paragraph 5 of the Retainer Agreement provides,

“In the event of discharge or withdrawal of Attorney as provided in Paragraph 10, Client agrees that Attorney shall be entitled to be paid by Client, upon payment of the settlement, arbitration award, or judgment in favor of Client, a reasonable fee for the legal services provided by Attorney to Client.”

(FAC, Exh. A., ¶ 5.)

The Court agrees that this provision does not allow for recovery of attorneys’ fees for the instant breach of contract action, but rather allows for the recovery of fees for services already rendered in the underlying slip and fall action.

Plaintiff also cites paragraphs 11 and 12. Paragraph 11 states that in the event of discharge or withdrawal, Defendant is not relieved of “the obligation to pay any costs incurred prior to such termination, and attorney has the right to recover from [Defendant] the reasonable value of [Plaintiffs’] legal services rendered from the effective date of the Agreement.” (FAC, Exh. A, ¶ 11.) Paragraph 12 states that Defendant grants Plaintiffs a lien on any and all claims that are the subject of Plaintiffs’ representation, and the lien will be for “unpaid costs or attorney’s fees’ under the Retainer Agreement. (Id., ¶ 11.)

However, these provisions similarly do not provide for attorney’s fees in connection with an action for instant breach of contract action. Paragraph 11 merely reiterates that Defendant is required to compensate Plaintiff for legal services rendered and paragraph 12 provides for a means to recover any attorney’s fees earned in the underlying slip and fall case.

Thus, because Plaintiffs’ breach of contract action does not support an award of attorney’s fees, Defendant’s Motion is GRANTED.

For the foregoing reasons, Defendant Mia Adler Ozair’s Demurrer to First Amended Complaint is OVERRULED. Defendant’s Motion to Strike Portions of First Amended Complaint is GRANTED.

Moving party is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.