On 07/15/2019 RICARDO HERNANDEZ filed a Contract - Other Contract lawsuit against MARK J WERKSMAN. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is WENDY CHANG. The case status is Disposed - Dismissed.
Disposed - Dismissed
Los Angeles County Superior Courts
Spring Street Courthouse
Los Angeles, California
WERKSMAN MARK J.
8/28/2020: Judgment - Judgment
6/18/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order
3/9/2020: Motion for Reconsideration - Motion for Reconsideration
3/9/2020: Minute Order - Minute Order (Non-Appearance Case Review)
2/13/2020: Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)
2/18/2020: Notice of Ruling - Notice of Ruling
2/26/2020: Memorandum of Costs (Summary) - Memorandum of Costs (Summary)
12/17/2019: Opposition (name extension) - Opposition Notice of Opposition to Defendants Sur-Reply
12/4/2019: Opposition (name extension) - Opposition Notice Hernandez Oppositin to Demurrer
12/9/2019: Reply (name extension) - Reply in Support of Defendant's Demurrer to the Complaint; Declaration of Vikram Sohal
12/10/2019: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order
12/11/2019: Notice (name extension) - Notice of Continuance of the Hearing on Defendant's Demurrer to the Complaint
11/8/2019: Notice (name extension) - Notice of Continued Hearing on Demurrer
11/8/2019: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)
10/17/2019: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike
10/17/2019: Request for Judicial Notice - Request for Judicial Notice
7/17/2019: Order on Court Fee Waiver (Superior Court) - Order on Court Fee Waiver (Superior Court) GRANTED
7/15/2019: First Amended Standing Order - First Amended Standing Order
Hearing07/18/2022 at 10:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of ServiceRead MoreRead Less
Hearing01/11/2021 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury TrialRead MoreRead Less
Hearing10/08/2020 at 10:00 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for ReconsiderationRead MoreRead Less
DocketJudgment; Filed by: Mark J. Werksman (Defendant); As to: Ricardo Hernandez (Plaintiff)Read MoreRead Less
DocketUpdated -- Judgment: Status changed from Filed to Signed and FiledRead MoreRead Less
DocketNotice Re: Continuance of Hearing and Order; Filed by: ClerkRead MoreRead Less
DocketReset - Court Unavailable, Hearing on Motion for Reconsideration scheduled for 07/27/2020 at 09:00 AM in Spring Street Courthouse at Department 26 Not Held - Advanced and Continued - by Court was rescheduled to 10/08/2020 10:00 AMRead MoreRead Less
DocketNotice Re: Continuance of Hearing and Order; Filed by: ClerkRead MoreRead Less
DocketReset - Court Unavailable, Hearing on Motion for Reconsideration scheduled for 05/21/2020 at 10:30 AM in Spring Street Courthouse at Department 26 Not Held - Rescheduled by Court was rescheduled to 07/27/2020 09:00 AMRead MoreRead Less
DocketMotion for Reconsideration; Filed by: Ricardo Hernandez (Plaintiff)Read MoreRead Less
DocketOrder on Court Fee Waiver (Superior Court) GRANTED; Filed by: Clerk; As to: Ricardo Hernandez (Plaintiff)Read MoreRead Less
DocketRequest to Waive Court Fees; Filed by: Ricardo Hernandez (Plaintiff)Read MoreRead Less
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 07/18/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
DocketNon-Jury Trial scheduled for 01/11/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
DocketUpdated -- Request to Waive Court Fees: Status Date changed from 07/16/2019 to 07/15/2019Read MoreRead Less
DocketCase assigned to Hon. Wendy Chang in Department 94 Stanley Mosk CourthouseRead MoreRead Less
DocketFirst Amended Standing Order; Filed by: ClerkRead MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
DocketCivil Case Cover Sheet; Filed by: Ricardo Hernandez (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by: Ricardo Hernandez (Plaintiff); As to: Mark J. Werksman (Defendant)Read MoreRead Less
Case Number: 19STLC06542 Hearing Date: February 13, 2020 Dept: 26
Hernandez v. Werksman, et al.
(CCP §§ 430.31, et seq.)
Defendant Mark J. Werksman’s Demurrer to the Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.
On July 15, 2019, Plaintiff Ricardo Hernandez (“Plaintiff”) filed the instant action for breach of retainer agreement and fraud against Defendant Mark J. Werksman (“Defendant”), his former attorney. The Complaint alleges that “[o]n or about 11/26/07” the parties entered into an oral retainer agreement whereby Defendant was to represent Plaintiff on Case No. VA103436 and at trial until judgment, in exchange for payment. (Compl., pp. 1-2.) Defendant allegedly breached the agreement by failing to represent Plaintiff and instead, delegating the representation to another attorney. (Id. at p. 2, ¶2.) That attorney then withdrew as counsel. (Ibid.)
Defendant filed the instant Demurrer to the Complaint on October 17, 2019. The Demurrer was initially set for hearing on December 12, 2019. Plaintiff untimely filed an opposition on December 4, 2019 and Defendant replied on December 9, 2019. The day before the hearing, Defendant continued the matter to February 13, 2020. Plaintiff filed an “opposition to Defendant’s sur-reply” on December 17, 2019.
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 CCP § 430.10 [grounds], § 430.30 [as to any matter on its face or from which judicial notice may be taken], and § 430.50(a) [can be taken to the entire complaint or any cause of action within]. Specifically, a demurrer may be brought per CCP § 430.10(e) if insufficient facts are stated to support the cause of action asserted. Per CCP §430.10(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. CCP § 430.10(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. (CCP § 92(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, CCP 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.” (CCP § 430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP § 430.41(a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (CCP § 430.41(a)(3).)
The Demurrer is exempt from the meet and confer requirements. (Code Civ. Proc., § 430.41, subd. (d)(1).) Defendant demurs to the Complaint on the grounds that it is barred by the statute of limitations, does not plead Defendant’s actual innocence and fails to allege facts sufficient to state a cause of action under Code of Civil Procedure section 430.41, subdivision (e). In support of the Demurrer, Defendant requests that the Court take judicial notice of the following:
Inmate information report for Plaintiff obtained on October 11, 2019 from the California Department of Corrections and Rehabilitation’s website;
Criminal Case Summary for People v. Hernandez, Case No. XSEVA103436-01, obtained on October 11, 2019 from the Los Angeles county Superior Court’s website;
The March 8, 2010 California Court of Appeal's opinion entered in People v. Hernandez, No. 8214573;
The September 24, 2012 Report and Recommendation of the United States Magistrate Judge filed in Hernandez v. DeMorales, United States District Court - Central District of California Case No. cv-11-3950-MWF (FFM);
The Judgment entered on November 3,2012 in Hernandez v. DeMorales, United States District Court - Central District of California Case No. cv- 1 1-3950-MWF (FFM); and
The July 17, 2019 California Court of Appeal’s opinion entered in People v. Hernandez, No. B293935;
Letter sent from Defendant to Plaintiff on March 6, 2019.
The request for judicial notice is granted pursuant to Cal. Evidence Code section 452, subdivisions (c) and (d). (Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1285, fn. 3.)
Statute of Limitations
The statute of limitations for breach of contract is one year, and the statute of limitations for fraud is three years. (Code Civ. Proc., §§ 340.6, 338.) The retainer agreement entered into by the parties specifically states that Defendant was retained for pre-filing investigation and consultation, and that if Plaintiff wanted Defendant to represent him in court or if criminal charges were filed, a separate retainer agreement would be required. (Compl., Exh. 4 at ¶1.) Charges were filed against Defendant on March 11, 2008 and his trial commenced on July 10, 2008. (Demurrer, RJN, Exh. 2 at pp. 6-7.) To the extent Plaintiff alleges Defendant failed to provide representation as agreed after these dates, such claims should have been brought by 2011 at the latest. (Compl., p. 1.) The Complaint, however, was not filed until July 15, 2019. Therefore, the Complaint for breach of contract and fraud is barred by the statute of limitations.
Defendant also argues that Plaintiff failed to plead actual innocence, which is required in any suit brought by a criminal defendant against the attorney who represented him or her. (Citing Wiley v. County of San Diego (1998) 19 Cal.4th 532, 539-540; Weiner v. Mitchell, Silverberg & Knupp (1981) 114 Cal.App.3d 39, 48.) “Common to all these decisions are considerations of public policy: ‘[P]ermitting a convicted criminal to pursue a legal malpractice claim without requiring proof of innocence would allow the criminal to profit by his own fraud, or to take advantage of his own wrong, or to found [a] claim upon his iniquity, or to acquire property by his own crime.’” (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 537.)
The Complaint does not allege that Plaintiff was actually innocent of the crime of which he was convicted. (See RJN, Exh. 2.)
Failure to Allege Sufficient Facts
Finally, to the extent Plaintiff alleges that the parties had an oral contract for representation through trial, those allegations are defeated by the terms of the written retainer agreement and the timing of the parties’ performance. The oral contract was allegedly created on November 26, 2007, yet Plaintiff paid for the purported representation two weeks earlier on November 9, 2007. (Compl., p. 1 and Exh. 2.) Plaintiff, therefore, has not alleged the existence of an oral agreement that was allegedly breached by Defendant. Nor has he alleged that he relied upon any statement made by Defendant regarding representation through trial.
Based on the foregoing, Defendant Mark J. Werksman’s Demurrer to the Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.
Moving party to give notice.