This case was last updated from Los Angeles County Superior Courts on 12/27/2021 at 06:47:34 (UTC).

LAW OFFICES OF MARC GROSSMAN (A PROFESSIONAL CORPORATION) VS ALEXANDER R. MARMUREANU, MD

Case Summary

On 05/24/2021 LAW OFFICES OF MARC GROSSMAN A PROFESSIONAL CORPORATION filed a Contract - Other Contract lawsuit against ALEXANDER R MARMUREANU, MD. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******9462

  • Filing Date:

    05/24/2021

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff

LAW OFFICES OF MARC GROSSMAN A PROFESSIONAL CORPORATION

Defendant

MARMUREANU ALEXANDER R. M.D.

Attorney/Law Firm Details

Plaintiff Attorney

GROSSMAN MARC E.

Defendant Attorney

AHN ANDREW J.

 

Court Documents

Reply - REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S SECOND AMENDED VERIFIED COMPLAINT

11/17/2021: Reply - REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S SECOND AMENDED VERIFIED COMPLAINT

Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE)

11/24/2021: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE)

Amended Complaint - AMENDED COMPLAINT (3RD)

12/17/2021: Amended Complaint - AMENDED COMPLAINT (3RD)

Proof of Service by Mail

12/17/2021: Proof of Service by Mail

Opposition - OPPOSITION PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER TO SECOND AMENDED VERIFIED COMPLAINT

11/10/2021: Opposition - OPPOSITION PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER TO SECOND AMENDED VERIFIED COMPLAINT

Demurrer - without Motion to Strike

10/21/2021: Demurrer - without Motion to Strike

Certificate of Mailing for - CERTIFICATE OF MAILING FOR [NOTICE OF REJECTION OF ELECTRONIC FILING]

10/13/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR [NOTICE OF REJECTION OF ELECTRONIC FILING]

Notice of Posting of Jury Fees

9/24/2021: Notice of Posting of Jury Fees

Amended Complaint - SECOND AMENDED COMPLAINT

9/30/2021: Amended Complaint - SECOND AMENDED COMPLAINT

Proof of Service by Mail

9/30/2021: Proof of Service by Mail

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

9/24/2021: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Minute Order - MINUTE ORDER (HEARING ON MOTION TO RECLASSIFY (WALKER MOTION))

9/17/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION TO RECLASSIFY (WALKER MOTION))

Proof of Service by Mail

9/9/2021: Proof of Service by Mail

Opposition - OPPOSITION OPPOSITION TO MOTION TO RECLASSIFY AS LIMITED JURISDICTION CASE

9/14/2021: Opposition - OPPOSITION OPPOSITION TO MOTION TO RECLASSIFY AS LIMITED JURISDICTION CASE

Proof of Service by Mail

9/14/2021: Proof of Service by Mail

Proof of Service by Mail

9/9/2021: Proof of Service by Mail

Case Management Statement

9/9/2021: Case Management Statement

Case Management Statement

9/9/2021: Case Management Statement

18 More Documents Available

 

Docket Entries

  • 09/26/2022
  • Hearing09/26/2022 at 08:30 AM in Department 34 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

    [+] Read More [-] Read Less
  • 09/13/2022
  • Hearing09/13/2022 at 09:00 AM in Department 34 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

    [+] Read More [-] Read Less
  • 12/17/2021
  • DocketProof of Service by Mail; Filed by Law Offices of Marc Grossman (A Professional Corporation) (Plaintiff)

    [+] Read More [-] Read Less
  • 12/17/2021
  • DocketAmended Complaint ( (3rd)); Filed by Law Offices of Marc Grossman (A Professional Corporation) (Plaintiff)

    [+] Read More [-] Read Less
  • 11/24/2021
  • Docketat 08:30 AM in Department 34; Hearing on Demurrer - without Motion to Strike - Held

    [+] Read More [-] Read Less
  • 11/24/2021
  • DocketMinute Order ( (Hearing on Demurrer - without Motion to Strike)); Filed by Clerk

    [+] Read More [-] Read Less
  • 11/17/2021
  • DocketReply (In Support of Demurrer to Plaintiff's Second Amended Verified Complaint); Filed by Alexander R. Marmureanu, M.D. (Defendant)

    [+] Read More [-] Read Less
  • 11/10/2021
  • DocketOpposition (Plaintiff's Memorandum of Points and Authorities in Opposition to Demurrer to Second Amended Verified Complaint); Filed by Law Offices of Marc Grossman (A Professional Corporation) (Plaintiff)

    [+] Read More [-] Read Less
  • 10/21/2021
  • DocketDemurrer - without Motion to Strike; Filed by Alexander R. Marmureanu, M.D. (Defendant)

    [+] Read More [-] Read Less
  • 10/13/2021
  • DocketCertificate of Mailing for ([Notice of Rejection of Electronic Filing]); Filed by Clerk

    [+] Read More [-] Read Less
17 More Docket Entries
  • 08/24/2021
  • DocketDemurrer - without Motion to Strike; Filed by Alexander R. Marmureanu, M.D. (Defendant)

    [+] Read More [-] Read Less
  • 08/24/2021
  • DocketRequest for Judicial Notice; Filed by Alexander R. Marmureanu, M.D. (Defendant)

    [+] Read More [-] Read Less
  • 08/05/2021
  • DocketRequest for Judicial Notice; Filed by Alexander R. Marmureanu, M.D. (Defendant)

    [+] Read More [-] Read Less
  • 08/05/2021
  • DocketMotion to Reclassify; Filed by Alexander R. Marmureanu, M.D. (Defendant)

    [+] Read More [-] Read Less
  • 06/22/2021
  • DocketAmended Complaint ( (1st)); Filed by Law Offices of Marc Grossman (A Professional Corporation) (Plaintiff)

    [+] Read More [-] Read Less
  • 06/08/2021
  • DocketCivil Case Cover Sheet; Filed by Law Offices of Marc Grossman (A Professional Corporation) (Plaintiff)

    [+] Read More [-] Read Less
  • 06/08/2021
  • DocketNotice of Case Management Conference; Filed by Clerk

    [+] Read More [-] Read Less
  • 05/24/2021
  • DocketComplaint; Filed by Law Offices of Marc Grossman (A Professional Corporation) (Plaintiff)

    [+] Read More [-] Read Less
  • 05/24/2021
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

    [+] Read More [-] Read Less
  • 05/24/2021
  • DocketSummons (on Complaint); Filed by Law Offices of Marc Grossman (A Professional Corporation) (Plaintiff)

    [+] Read More [-] Read Less

Tentative Rulings

Case Number: *******9462 Hearing Date: November 29, 2022 Dept: 34

SUBJECT: Application and Order for Appearance and Examination

Moving Party: Judgment Creditor Alexander R. Marmureanu, M.D.

Resp. Party: None

The application and order for appearance and examination is GRANTED.

BACKGROUND:

On May 24, 2021, Plaintiff Law Offices of Marc Grossman filed its Verified Complaint against Defendant Alexander R. Marmureanu, M.D. on causes of action of fraud, breach of contract, recission, and unfair competition and business practices.

On December 17, 2021, Plaintiff filed its Third Amended Verified Complaint.

On February 22, 2022, the Court sustained without leave to amend Defendant’s Demurrer to Plaintiff’s Third Amended Verified Complaint in its entirety.

On March 4, 2022, the Court entered Judgment of Dismissal in favor of Defendant and against Plaintiff.

On May 20, 2022, the Court granted Defendant’s Motion for Attorney’s Fees in the amount of $19,583.00 in favor of Defendant (now Judgment Creditor) and against Plaintiff (now Judgment Debtor).

On August 24, 2022, Judgment Creditor filed: (1) Memorandum of Costs after Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest; and (2) Execution (Money Judgment).

On October 25, 2022, Judgment Creditor filed his Application and Order for Appearance and Examination against Judgment Debtor.

On November 16, 2022, Judgment Creditor filed his Proof of Service, which averred under penalty of perjury that Judgment Debtor had been personally served on November 8, 2022 with: (1) the Application and Order for Appearance and Examination; (2) a Minute Order; and (3) a Civil Subpoena for Personal Appearance and Production of Documents.

ANALYSIS:

I. Legal Standard

Code of Civil Procedure section 708.120, subdivision (a) provides:

“Upon ex parte application by a judgment creditor who has a money judgment and proof by the judgment creditor by affidavit or otherwise to the satisfaction of the proper court that a third person has possession or control of property in which the judgment debtor has an interest or is indebted to the judgment debtor in an amount exceeding two hundred fifty dollars ($250), the court shall make an order directing the third person to appear before the court, or before a referee appointed by the court, at a time and place specified in the order, to answer concerning such property or debt. The affidavit in support of the judgment creditor's application may be based on the affiant's information and belief.”

“Not less than 10 days prior to the date set for examination, a copy of the order shall be: (1) Served personally to the third person[;] (2) Served personally or by mail on the judgment debtor.” (Code Civ. Proc., 708.120, subd. (b).)

“An order made pursuant to subdivision (a) shall contain the following statements in 14-point boldface type if printed or in capital letters if typed:

[ ]

(2) ‘NOTICE TO JUDGMENT DEBTOR. The person in whose favor the judgment was entered in this action claims that the person to be examined pursuant to this order has possession or control of property which is yours or owes you a debt. This property or debt is as follows: (Description of property or debt). If you claim that all or any portion of this property or debt is exempt from enforcement of the money judgment, you must file your exemption claim in writing with the court and personally serve a copy on the judgment creditor not later than three days before the date set for the examination. You must appear at the time and place set for this examination to establish your claim of exemption or your exemption may be waived.’” (Code Civ. Proc., 708.120, subd. (e)(2).)

II. Discussion

Judgment Creditor applies for an order for Judgment Debtor to appear for examination. (Application, 1, 4, 5.a.)

The Court finds that Judgment Debtor was properly served.

The Court GRANTS Judgment Creditor’s application and order for appearance and examination.

III. Conclusion

Judgment Creditor’s application and order for appearance and examination is GRANTED.



Case Number: *******9462 Hearing Date: May 20, 2022 Dept: 34

SUBJECT: Motion for Attorney’s Fees

Moving Party: Alexander R. Marmureanu, M.D. (“Marmureanu”)

Resp. Party: Law Offices of Marc Grossman, a Professional Corporation (“Grossman”)

Defendant Alexander R. Marmureanu, M.D.’s motion for attorney’s fees is GRANTED in the amount of $19,583.00.

I. PRELIMINARY COMMENTS

Plaintiff states in its opposition that “Defendant's motion for fees comes on the heels of this Court granting Defendant's demurrer without leave to amend, which was a procedural victory obtained on a mere technicality.” (Opposition, p. 1:18-20.)

Not so. Plaintiff filed a complaint, a First Amended Complaint, a Second Amended Complaint and a Third Amended Complaint. Defendant was forced to file three demurrers; the Court sustained the demurrer to the TAC without leave to amend. The Court also stated, on several occasions:

“This case was filed by an attorney in pro per. We all know what is happening: this is a small case concerning a $5,000 retainer. If plaintiff weren’t an attorney, this case would have been filed in small claims court. Instead, because plaintiff is an attorney, he has added fraud, recission and UCL causes of action to inflate the value of the case.

“Further, Plaintiff Law Firm has now filed four versions of its complaint. Plaintiff still hasn’t been able to draft a complaint that will withstand a demurrer. That Court might excuse that lapse from a pro per plaintiff. The Court finds it hard to excuse such sloppy drafting from an attorney who has been a member of the State Bar for over 23 years.

The Court is sustaining the demurrer without leave to amend because there is no reason to give Plaintiff yet a fifth bite at the apple.” (See (9/17/21 Minute Order; 11/23/21 Minute Order,

2/22/2022 Minute Order.)

Plaintiff’s complaint was not dismissed on a technicality. It was a lawsuit that should never have been filed in an I/C court.

Plaintiff also states in its opposition that “the parties’ contractual dispute is not finally disposed of, and therefore, precludes this Court from making a prevailing party determination.” (Opposition, p. 1:28 – p. 2:2.) Again, this is incorrect. Judgment was entered for Defendant on March 4, 2022; defendant is the prevailing party. The fact that Plaintiff may file – at some unspecified date – a motion for relief from default does not change the fact that Defendant stands in front of this Court today as the prevailing party.

II. BACKGROUND

On May 24, 2021, the Law Offices of Marc Grossman, a Professional Corporation, filed a verified complaint against Alexander R. Marmureanu, M.D. alleging the following causes of action:

1. Fraud

2. Breach of Contract

3. Recission

4. Unfair Competition and Business Practices (B&P 17200)

On June 22, 2021, the Law Offices of Marc Grossman, a Professional Corporation, filed a First Amended Verified Complaint against Alexander R. Marmureanu, M.D. alleging the same causes of action.

On September 30, 2021, the Law Offices of Marc Grossman, a Professional Corporation, filed a Second Amended Verified Complaint against Alexander R. Marmureanu, M.D. alleging the same causes of action.

On December 17, 2021, the Law Offices of Marc Grossman, a Professional Corporation, filed a Third Amended Verified Complaint against Alexander R. Marmureanu, M.D. alleging the same causes of action.

On February 22, 2022, the Court sustained without leave to amend Marmureanu’s demur to Grossman’s Third Amended Verified Complaint in its entirety for failure to state facts sufficient to constitute a cause of action pursuant to CCP 430.10(e). (Minute Order, filed February 22, 2022, p. 1.)

On April 26, 2022, Marmureanu moved “for an order awarding attorney’s fees and costs pursuant to Civil Code section 1717.” (Motion, p. 2:4-5.) “Defendant applies to the Court for an award of $17,935.50 in attorney’s fees and costs, plus fees and costs incurred in bringing this motion in the amount of $2,185.00, for a total of $20,120.50 in attorney’s fees and costs.” (Motion, p. 2:6-8.)

On May 9, 2022, Grossman opposed Marmureanu’s motion for attorney’s fees and costs.

III. ANALYSIS

A. Legal Standard

The determination of reasonable amount of attorney fees is within the sound discretion of trial courts. PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095; Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal. App. 4th 1127, 1134. “In determining what constitutes a reasonable attorney fee when a contract or statute provides for such an award, courts should consider the nature of the litigation, its difficulty, the amount involved, and the skill required and success of the attorney's efforts, his or her learning, age and experience in the particular type of work demanded, the intricacies and importance of the litigation, the labor and necessity for skilled legal training and ability in trying the cause, and the time consumed.” Contractors Labor Pool, Inc. v. Westway Contractors, Inc. (1997) 53 Cal.App.4th 152, 168.

“Except as provided by statute or agreement, each party to a lawsuit must ordinarily pay their own attorney’s fees.” (Glaviano v. Sacramento City Unified School Dist. (2018) 22 Cal.App.5th 744, 750.) During statutory fee-shifting cases, when the prevailing party is statutorily authorized to recover their attorney’s fees from the losing party, the lodestar method is the primary method for establishing the recoverable fee amount. (Id.) The basic fee for comparable legal services in a community is called the lodestar; adjustment of this figure by the Court is based on factors including issue novelty/ difficulty, skill in legal presentation, the extent to which litigation precludes other attorney employment, and the contingent nature of the fee award. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) “The “‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.’”” (Id.) Once a party establishes that they are entitled to attorney’s fees the lodestar is the presumed analytical starting point to determine the appropriate amount. (K.I. v. Wagner (2014) 225 Cal.App.4th 1412, 1425.)

“Under the lodestar adjustment methodology, the trial court must initially determine the actual time expended and then “ascertain whether under all the circumstances of the case the amount of actual time expended, and the monetary charge being made for the time expended are reasonable.”” (Id.) “The reasonable hourly rate is that prevailing for private attorneys in the community conducting non-contingent litigation of the same type.” (Glaviano, 22 Cal.App.5th at 751.)

The court may rely on its own knowledge and familiarity with the legal market in setting a reasonable hourly rate. [Citation.] “Affidavits of the plaintiffs' attorney and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, particularly those setting a rate for the plaintiffs' attorney, are satisfactory evidence of the prevailing market rate.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009.) Trial courts enjoy discretion to increase or decrease the amount of attorney's fees they award pursuant to the lodestar adjustment method. Such adjustment is known as a "fee enhancement" or "multiplier." (Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 247.) "The Supreme Court has “set forth a number of factors the trial court may consider in adjusting the lodestar figure. These include: ‘(1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; [and] (3) the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award.’”” (Mikhaeilpoor, 48 Cal.App.5th at 248.)

B. Discussion

Under the Expert Witness Retention Contract signed by the parties, in “any arbitration or court proceeding, the prevailing party shall be entitled to recover all its attorney’s fees and costs, including any collection costs.” (Third Amended Verified Complaint, Ex. 1, 5.) The Court finds that Marmureanu is the prevailing party in the present litigation because the Court sustained without leave to amend Marmureanu’s demurrer to Grossman’s Third Amended Verified Complaint in its entirety on February 22, 2022.

1. Hourly Rates

Marmureanu seeks the following hourly rates for his attorneys: $275.00 per hour for Andrew J. Ahn billings in 2021; $300.00 per hour for Andrew J. Ahn billings in 2022, $800.00 per hour for Timothy J. Reuben, $650.00 per hour for Stephen L. Raucher, and $195 per hour for paralegals Nima Abtahi and Nathalie Quach. (Ahn Decl., 2-5.) The Court finds these hourly rates reasonable.

2. Number of Hours Worked

The Court’s review of Marmureanu’s counsel’s billing records confirmed that Marmureanu’s counsel spent fifty hours of work on the case, with the following distribution: Andrew Ahn (2021) – 29.25 hours; Andrew Ahn (2022) – 9.6 hours; Timothy Reuben – 5.75 hours; Stephen Raucher – one hour; Nima Abtahi – 0.6 hour; Nathalie Quach – 3.8 hours. (Ahn Decl., Ex. 1.) The Court finds these hours reasonable, including hours billed on Marmureanu’s reclassification motion. (See Opposition, p. 8:8—9:12.) Although the Court denied this motion, the Court did not consider the motion “meritless,” as stated in the Opposition.

However, the Court agrees with Plaintiff’s argument, that Defendant has requested $537.50 in duplicative attorney's fees. The Court will therefore deduct $537.50 from the lodestar.

Marmureanu’s counsel anticipates that it will spend 2.25 hours preparing the instant motion and anticipates spending another 4 hours on the Grossman’s opposition and their reply. (Ahn Decl., 7.) “Fees on fees,” – i.e., fees incurred in litigating the award of attorney fees – are allowable. (See, e.g., Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1141.) The Court grants Marmureanu the 6.25 hours requested.

3. Lodestar

The Court grants Marmureanu attorney's fees of $19,156.75 – $537.50 = $18,619.25.

Marmureanu lists $903.75 in litigation costs, and a $60.00 filing fee for the present motion. The Court finds these costs reasonable. The Court grants $19,583.00 in attorney’s fees and costs to Marmureanu.

IV. CONCLUSION

Defendant Alexander R. Marmureanu, M.D.’s motion for attorney’s fees is GRANTED in the amount of $19,583.00.



Case Number: *******9462 Hearing Date: February 22, 2022 Dept: 34

SUBJECT: Demurrer to Plaintiff’s Third Amended Verified Complaint

Moving Party: Defendant Alexander R. Marmureanu, M.D.

Resp. Party: Plaintiff Law Offices of Marc Grossman (A Professional Corporation)

The Court SUSTAINS WITHOUT LEAVE TO AMEND Defendant’s demur to Plaintiff’s Third Amended Verified Complaint in its entirety for failure to state facts sufficient to constitute a cause of action pursuant to CCP 430.10(e).

I. PRELIMINARY COMMENTS

The Court has twice previously chided Plaintiff Law Firm for filing and maintaining this action in a general jurisdiction court:

“This case was filed by an attorney in pro per. We all know what is happening: this is a small case concerning a $5,000 retainer. If plaintiff weren’t an attorney, this case would have been filed in small claims court. Instead, because plaintiff is an attorney, he has added fraud, recission and UCL causes of action to inflate the value of the case.” (9/17/21 Minute Order; 11/23/21 Minute Order.)

The parties have already spent substantially more on attorneys fees than they could have possibly earned or saved in litigating or defending this lawsuit.

Further, Plaintiff Law Firm has now filed four versions of its complaint. Plaintiff still hasn’t been able to draft a complaint that will withstand a demurrer. That Court might excuse that lapse from a pro per plaintiff. The Court finds it hard to excuse such sloppy drafting from an attorney who has been a member of the State Bar for over 23 years.

The Court is sustaining the demurrer without leave to amend because there is no reason to give Plaintiff yet a fifth bite at the apple.

II. BACKGROUND

This case concerns a contract to provide expert witness services to a lawyer.

On May 24, 2021, Plaintiff filed a Complaint against Defendant for fraud, breach of contract, rescission, and violations of Business and Professions Code 17200. A First Amended Complaint was filed on June 22, 2021. Defendant filed a demurrer to the First Amended Complaint on August 24, 2021.

On September 10, 2021, Plaintiff filed a stipulation and order to request leave to file a Second Amended Complaint.

On September 30, 2021, Plaintiff filed a Second Amended Complaint. Defendant filed a demurrer to the Second Amended Complaint on October 21, 2021. Plaintiff filed an opposition on November 10, 2021. Defendant filed a reply on November 17, 2021.

On November 24, 2021, the Court sustained Defendant’s demurrer to the Second Amended Complaint. Plaintiff was given fifteen (15) days leave to amend.

On December 17, 2021, Plaintiff filed a Third Amended Verified Complaint for (1) fraud, (2) breach of contract, (3) recission, and (4) unfair competition and business practices under Business and Professions Code 17200.

On January 25, 2022, Defendant filed the instant demurrer to the Third Amended Verified Complaint. Plaintiff filed an opposition to this demurrer on February 9, 2022. On February 14, 2022, Defendant filed a reply to Plaintiff’s opposition.

III. ANALYSIS

A. Legal Standard

A demurrer is a pleading used to test the legal sufficiency of other pleadings. (Cty. of Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1008–09; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 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. (Unruh-Haxton v. Regents of Univ. of California (2008) 162 Cal.App.4th 343, 365, as modified (May 15, 2008).) For purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be. (CCP 422.10, 589.)

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 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).

A demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted. A demurrer for uncertainty may be brought pursuant to Code of Civil Procedure section 430.10, subdivision (f). “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) “In general, ‘demurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.’” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)

The demurring party must file with the court, and serve on the other party, the: (1) demurrer; (2) notice of hearing; (3) memorandum of points and authorities; and (4) proof of service. (See Cal. Rules of Court, rule 3.1112(a), rule 3.1300(c), rule 3.1320; Code Civ. Proc., 1005(b).) “A demurrer shall distinctly specify the grounds upon which any of the objections to the complaint . . . are taken. Unless it does so, it may be disregarded.” (CCP 430.60.)

B. Discussion

Defendant demurs to the First, Second, Third, and Fourth Causes of Action of Plaintiff’s Third Amended Verified Complaint for failure to state facts sufficient to constitute a cause of action pursuant to CCP 430.10, subd. (e).

1. Plaintiff’s Opposition Brief is Untimely and Exceeds the Page Limits

Under CCP 1005(b), “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.” Under California Rules of Court, Rule 3.1113(d), excepting summary judgment or summary adjudication motions, “no opening or responding memorandum may exceed 15 pages.”

The deadline for filing an opposition brief to the instant motion was February 7, 2022. Plaintiff’s opposition brief, dated February 8, 2022, was filed on February 9, 2022. It is twenty-five pages long. The Court has discretion to refuse to consider this late-filed brief outright.

Instead, the Court will consider the first fifteen pages of Plaintiff’s Opposition only.

2. First Cause of Action for Fraud

“The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (5 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, 676, p. 778.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) In California, fraud must be pled specifically; general and conclusory allegations do not suffice. ... This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Lazar, 12 Cal.4th at 645; see also Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73-74.)

Defendant argues that the only addition to Plaintiff’s cause of action for fraud in the Third Amended Verified Complaint in relation to the previous three is the allegation that Defendant’s Office represented to Plaintiff that “the total charge for reviewing medical records and preparing an opposition declaration would be $5,000.” (TAVC, 37; Demurrer, p. 5:4-9.) Plaintiff further alleges Defendant’s knowledge of the falsity (TAVC, 38), intent to defraud (TAVC, 39), justifiable reliance (TAVC, 40), and damage (TAVC, 41, 43). Plaintiff has pled the elements of a fraud cause of action.

However, the particularity requirement imposed on fraud pleadings requires specific facts as to how, when, where, to whom, and by what means the representations were tendered. (Lazar, 12 Cal.4th at 645.) Defendant argues that Plaintiff’s allegation that Defendant’s Office represented to Plaintiff that the total charge for medical record review and an opposition declaration would be $5,000 lacks the how, when, where, to whom, and by what means required by the particularity requirement. (Demurrer, p. 5:22-26.) Defendant argues that plaintiff failed to plead any representation made by Defendant that Plaintiff could justifiably rely upon to “reasonably believe that the total charge would be $5,000.” (Demurrer, p. 6:1-3.)

Defendant also suggests that the knowledge of falsity is not sufficiently pleaded, because the allegations that Plaintiff and Defendant worked together to review the medical record during a two-and-a-half-hour phone call on May 18, 2021, and later document reviews and revisions of the expert declaration between the parties belies Plaintiff’s claim that Defendant did not inform Plaintiff “of the amount of review time to generate an opinion on the case.” (TAVC, 13-25, 37; Demurrer, p. 6:7-10.) Further, Defendant argues that allegations that Defendant improperly inflated his time billed relies on “additional evidence in the possession of Plaintiff” about which no facts have been alleged. (Demurrer, p. 6:17-22; TAVC, 28.) Plaintiff argues that it specifically pleads the misrepresentation, justifiable reliance, and knowledge of falsity elements. (Opposition, pp. 8-15.)

Defendant also argues that Plaintiff’s fraud claim has shifted. In the first three pleadings, Plaintiff alleged that Defendant represented that he would “work with” Plaintiff, that he would refund any part of the retainer not used, and that he would charge less than competing expert witnesses. The TAC alleges that Defendant’s assistant “unequivocally promised Plaintiff that Defendant would complete all work for $5,000.” Defendant argues that this new fraud allegation constitutes a sham pleading. (Demurrer, p. 8:4-5.)

Under the sham pleading doctrine, “plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment . . . . A plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict the facts pleaded in the original complaint or by suppressing facts which prove the pleaded facts false.” (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 344.) Defendant argues that the new allegation is inconsistent with the terms of the Expert Witness Retention Contract the parties signed which states:

“The non-refundable retention retainer amount is $5,000. Expert will invoice against this retainer. This Non-refundable retainer amount is the minimum fee due Expert and is earned upon receipt. This Contract does not become effective until Expert receives the retainer.” (TAVC, Ex. 1, 3(b).)

Plaintiff’s fraud allegations require the Court to believe that the contract the parties signed was disregarded by Plaintiff because at some point between May 7, 2021, and May 21, 2021, Defendant’s assistant allegedly informed Plaintiff that all of Defendant’s work would be billed for the minimum fee due under the contract only. The Court finds that Plaintiff’s fraud allegations fail to explain with sufficient particularity the circumstances under which Defendant’s assistant allegedly promised that Defendant would complete all work for $5,000 and fails to explain why that allegation was not part of Plaintiff’s fraud allegations in the first three iterations of the complaint.

The Court SUSTAINS WITHOUT LEAVE TO AMEND Defendant’s demur to Plaintiff’s First Cause of Action for Fraud pursuant to CCP 430.10(e) for failure to state facts sufficient to constitute a cause of action.

3. Second Cause of Action for Breach of Contract

The elements of a cause of action for breach of contract are: (1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff. (Coles v. Glaser (2016) 2 Cal.App.5th 384, 391.)

Plaintiff pleads the existence of the contract (TAVC, 50-52.), Plaintiff’s performance (TAVC, 53.), Defendant’s breach (TAVC, 54-56.), and resulting damage to Plaintiff (TAVC, 58-62.) Plaintiff argues three breaches:

a. “that Defendant “had the $5,000 retainer sent to PayPal account and not Dr. Alexander Marmureanu / California Heart & Lung Surgery Medical Center, Inc. as stated in the Retainer Agreement.” (TAVC, 54.)

b. “Defendant doctor failed to provide 30 days for payment of his invoice which is a typical arrangement in these types of agreements.” (TAVC, 55.)

c. “Specifically, Defendant doctor breached the agreement by failing to provide a signed Declaration to be filed in support of the Opposition to Motion for Summary Judgment.” (TAVC, 56.)

The Court finds that Plaintiff has not alleged a breach of contract. The form of payment Plaintiff used to retain Defendant is not material to the existence of a contract between the parties; the fact of payment is. The second breach allegation is largely immaterial, because under the Expert Witness Retention Agreement, paragraphs 3(f) and 3(g), “All fees must be paid in full before any report is released to Client, other parties, or anyone else. Expert is under no contractual duty to appear to testify and provide opinions until Expert has been paid in full for all outstanding services performed and expenses incurred on behalf of Client.” (TAVC, Ex. 1, 3(f), 3(g).) Defendant did not breach the contract by failing to sign the completed report until after his invoices were paid. The third breach allegation similarly fails because of Defendant’s adherence to paragraphs 3(f) and 3(g) of the Expert Witness Retention Agreement.

The Court finds that Plaintiff fails to establish breach of contract because it does not sufficiently plead Defendant’s breach.

The Court SUSTAINS WITHOUT LEAVE TO AMEND Defendant’s demur to Plaintiff’s Second Cause of Action for Breach of Contract pursuant to CCP 430.10(e) for failure to state facts sufficient to constitute a cause of action.

4. Third Cause of Action for Recission and Fourth Cause of Action for Unfair Competition and Business Practices Pursuant to Business and Professions Code 17200

“Rescission” is a “retroactive termination” of a contract, as compared to “cancellation,” which is a “prospective termination.” [Citation.] “The consequence of rescission is not only the termination of further liability, but also the restoration of the parties to their former positions by requiring each to return whatever consideration has been received.” (Nmsbpcsldhb v. County of Fresno (2007) 152 Cal.App.4th 954, 959–960.)[R]escission is a remedy that disaffirms the contract. [Citations.] Rescission extinguishes the contract (Civil Code, 1688.), terminates further liability, and restores the parties to their former positions by requiring them to return whatever consideration they have received. (Sharabianlou v. Karp (2010) 181 Cal.App.4th 1133, 1145, as modified on denial of reh'g (Mar. 3, 2010).) “Rescission” means to “restore the parties to their former position.” (Young v. Flickinger (1925) 75 Cal.App. 171, 174.)

“As used in this chapter, unfair competition shall mean and include any unlawful, unfair, or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code.” (Bus. & Prof. Code, 17200.)

The Parties agree that Plaintiff’s Third Cause of Action for Recission and Fourth Cause of Action for Unfair Competition rely upon Plaintiff’s fraud allegations. (Demurrer, p. 10:28—11:1; Opposition, p. 4:10-18.) Since the Court finds that Plaintiff’s fraud allegations were insufficiently pled, the Court is precluded from finding that either Plaintiff’s recission claims or its unfair competition claims state facts sufficient to state a cause of action.

The Court SUSTAINS WITHOUT LEAVE TO AMEND Defendant’s demur to Plaintiff’s Third Cause of Action for Recission and Plaintiff’s Fourth Cause of Action for Unfair Competition and Business Practices Pursuant to Business and Professions Code 17200 pursuant to CCP 430.10(e) for failure to state facts sufficient to constitute a cause of action.

IV. CONCLUSION

The Court SUSTAINS WITHOUT LEAVE TO AMEND Defendant’s demur to Plaintiff’s Third Amended Verified Complaint in its entirety for failure to state facts sufficient to constitute a cause of action pursuant to CCP 430.10(e).



b'

Case Number: *******9462 Hearing Date: November 24, 2021 Dept: 34

SUBJECT: Demurrer

Moving Party: Defendant Alexander R. Marmureanu, M.D.

Resp. Party: Plaintiff Law Offices of Marc Grossman

The Court SUSTAINS the demurrer with 10 days leave to amend.

I. PRELIMINARY COMMENTS

The Court previously stated:

“This case was filed by an attorney in pro per. We all know what is happening: this is a small case concerning a $5,000 retainer. If plaintiff weren’t an attorney, this case would have been filed in small claims court. Instead, because plaintiff is an attorney, he has added fraud, recission and UCL causes of action to inflate the value of the case.” (9/17/21 Minute Order.)

This Court has made no judgment on the merits of this action. However, the Court is concerned that the parties have collectively incurred attorney\'s fees that already come close to half of the value of the main contract claim. It might behoove both parties to resolve this case amicably, before both parties’ sunk costs exceed the value of this action.

II. BACKGROUND

This case revolves around a contract to provide expert witness services to a lawyer. On May 24, 2021, Plaintiff filed a Complaint against Defendant for fraud, breach of contract, rescission, and violations of Business and Professions Code ; 17200. A First Amended Complaint was filed on June 22, 2021. Defendant filed a demurrer to the First Amended Complaint on August 24, 2021.

On September 10, 2021, Plaintiff filed a stipulation and order to request leave to file a Second Amended Complaint. On September 30, 2021, Plaintiff filed a Second Amended Complaint. Defendant filed the instant demurrer to the Second Amended Complaint on October 21, 2021. Plaintiff filed an opposition on November 10, 2021. Defendant filed a reply on November 17, 2021.

III. ANALYSIS

Defendant demurs to the First, Second, Third, and Fourth Causes of Action of Plaintiff’s Second Amended Complaint for failure to state facts sufficient to constitute a cause of action pursuant to CCP ; 430.10, subd. (e).

A. Legal Standard

A demurrer is a pleading used to test the legal sufficiency of other pleadings. (Cty. of Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1008–09; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 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. (Unruh-Haxton v. Regents of Univ. of California (2008) 162 Cal.App.4th 343, 365, as modified (May 15, 2008).) For purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be. (CCP ;; 422.10, 589.)

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 ; 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).

A demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted. 10The demurring party must file with the court, and serve on the other party, the: (1) demurrer; (2) notice of hearing; (3) memorandum of points and authorities; and (4) proof of service. (See Cal. Rules of Court, rule 3.1112(a), rule 3.1300(c), rule 3.1320; Code Civ. Proc., ; 1005(b).) “A demurrer shall distinctly specify the grounds upon which any of the objections to the complaint . . . are taken. Unless it does so, it may be disregarded.” (CCP ; 430.60.)

B. Discussion

1. First Cause of Action for Fraud

“The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (5 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, ; 676, p. 778.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) In California, fraud must be pled specifically; general and conclusory allegations do not suffice. ... This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Lazar, 12 Cal.4th at 645; see also Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73-74.)

“A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. [Citations.]” (Lazar, supra, 12 Cal.4th at 638.) Thus, in a promissory fraud action, to sufficiently alleges defendant made a misrepresentation, the complaint must allege (1) the defendant made a representation of intent to perform some future action, i.e., the defendant made a promise, and (2) the defendant did not really have that intent at the time that the promise was made, i.e., the promise was false. (Id. at 639.) To sufficiently plead the first requirement, that the defendant made a promise, the complaint must state “‘facts which “show how, when, where, to whom, and by what means the representations were tendered.”’ [Citation.]” (Lazar, supra, 12 Cal.4th 631, 645.) As for the second requirement, the falsity of that promise is sufficiently pled with a general allegation the promise was made without an intention of performance.” (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060.)

Plaintiff argues that Defendant’s office “let Plaintiff to believe that the total charge for reviewing medical records and preparing an opposition declaration would be $5,000,” because the “Executive Assistant assured Mr. Wood and Mr. Grossman that the Doctor would charge less than competing bids.” (SAC, ¶ 33.) Plaintiff argues further that “[A]s a direct and proximate result of the acts and omissions of defendants Plaintiff justifiable [sic] relied on the representation of Doctor in that the initial retainer would cover the Doctor’s review of the file, revisions on a declaration, and signing of the declaration.” (SAC, ¶ 37.) Defendant argues that this allegation fails to allege a misrepresentation sufficient to support a fraud claim because these allegations lack the specificity – the how, when, where, to whom, and by what means – required to meet the particularity requirement of pleading fraud elements.

Defendant argues that (1) Plaintiff’s representations of Defendant’s words “do not constitute a promise that the initial retainer would cover the review of the file, revisions on a declaration, and signing of the declaration” and (2) that Plaintiff “fails to allege facts demonstrating that Dr. Marmureanu had knowledge of the alleged falsity of his (inadequately alleged) misrepresentations and that he acted with the intent to defraud. (Demurrer, p. 5:12-18.) Rather, Defendant argues, Plaintiff’s Second Amended Complaint (“SAC”) shows that Defendant stated that he would not begin his medical records review until the retainer was paid, but once Plaintiff paid the non-refundable retainer, Plaintiff and Defendant worked together on Plaintiff’s tasks, receiving an “Excellent work” remark from Plaintiff when Defendant delivered the final, unsigned expert declaration, pending payment of the outstanding invoice. (SAC, ¶¶ 13-22.)

Plaintiff opposes the demurrer to the First Cause of Action for Fraud by illustrating how the elements of a fraud claim are adequately pled in the SAC. Plaintiff relies on paragraph 33 of the SAC to illustrate intentional misrepresentation, paragraph 36 for scienter, paragraph 33 for intent, paragraph 37 for reasonable reliance, and paragraph 37 for damages. (Opposition, p. 3:17—5:5; SAC, ¶¶ 33, 36, 37.) Defendant replies that Plaintiff’s allegations simply do not fulfill the heightened pleading standard required for fraud claims, specifically those that involve Dr. Marmureanu’s development and signing of a legal declaration. (Reply, p. 2:4-5; p. 2:12-15.)

The Court SUSTAINS with leave to amend Defendant’s demurrer to the First Cause of Action for Fraud pursuant to Code of Civil Procedure section 430.10, subd. (e).

2. Second Cause of Action for Breach of Contract

“The elements of a cause of action for breach of contract are: “‘(1) the contract, (2) plaintiff\'s performance or excuse for nonperformance, (3) defendant\'s breach, and (4) the resulting damages to plaintiff.’” (Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1614, 126 Cal.Rptr.3d 174.)” (Coles v. Glaser (2016) 2 Cal.App.5th 384, 391.) Defendant argues that Plaintiff’s SAC “fails to allege the element of Dr. Marmureanu’s breach of the Expert Witness Retention Contract.” (Demurrer, p. 6:22-23.) Plaintiff alleges that breach occurred when Defendant allegedly informed Plaintiff “that Doctor would only sign the declaration after receiving a full invoice payment totaling $7,750 in addition to the $5,000 retainer paid under the original written agreement.” (SAC, ¶ 44.) Defendant counters that such language is fully consistent with the terms of the Expert Witness Retention Contract, specifically paragraphs 3(f) and 3(g). Parties agreed in paragraph 3(f) that “All fees must be paid in full before any report is released to Client, other parties, or anyone else.” (SAC, Ex. 1., ¶ 3(f).) Parties agreed under paragraph 3(g) that the “Expert is under no contractual duty to appear to testify and provide opinions until Expert has been paid in full for all outstanding services performed and expenses incurred on behalf of Client.” (SAC, Ex. 1., ¶ 3(g).) Signatures from both Dr. Marmureanu and Mr. Grossman appear on the Expert Witness Retention Contract about the date “5/11/21” the parties’ interest to be bound by the contract’s terms. (SAC, Ex. 1., p. 2.)

Plaintiff’s opposition identifies paragraphs within the SAC where Plaintiff pleads the breach of contract cause of action elements. Plaintiff argues that the parties entered a written contract (SAC, ¶ 42.), that Plaintiff performed under the contract (SAC, ¶ 43.), that Defendant breached the contract (SAC, ¶ 44.), and that Plaintiff was damaged by the alleged breach (SAC, ¶ 45.) Plaintiff also contests that he sought a report to be released, and insists he merely requested Defendant’s signature on a declaration. (Opposition, p. 6:26-28.) Plaintiff insists that he did not request the Defendant ‘to appear to testify and provide opinions …’ He requested the doctor provide his input on a declaration.” (Opposition, p. 6:28—7:2.) Defendant reiterates in his reply that the alleged statements Plaintiff provides as evidence of Defendant’s breach are not incompatible with their contract’s terms as discussed above. (Reply., p. 2:26—3:3.) Further, Defendant argues that their contract is not ambiguous and that Plaintiff’s argument that his request of Defendant for a signature on an expert witness declaration does not equal a desire for a report or an appearance to testify “is clearly erroneous and disingenuous.” (Reply, p. 3:24-27.) Further, Defendant notes that if Plaintiff’s signature argument is to be believed, then Plaintiff sought, and their contract required Defendant “to sign a declaration that is somehow not a report or a testimony of expert opinion.” (Reply, p. 4:3-5.)

Plaintiff’s Second Cause of Action for Breach of Contract requires evidence that Defendant acted contrary to the terms of the parties’ agreement. The alleged statements Plaintiff attributes to Defendant in SAC ¶ 44, if true, do not themselves offer evidence of a breach of contract because they are compatible with paragraphs 3(f) and 3(g) of the Expert Witness Retention Contract. In the alleged quote Defendant holds Plaintiff to paragraphs 3(f) and 3(g) of the Expert Witness Retention Contract before final performance, as the parties agreed on May 11, 2021. Further, an expert witness declaration is made under the penalty of perjury and requires both brief narrative statements of the expert’s qualifications and the general substance of the expert’s testimony, and “a representation that the expert has agreed to testify at the trial.” (CCP ; 2034.260.)

The Court finds that Defendant could not sign the expert declaration without some acknowledgement of a willingness to testify to the representations made in the declaration at trial, made under penalty of perjury. There was and is no material difference between an expert witness’ report, an expert witness’ trial testimony, or an expert witness’ signed declaration. For purposes of the Expert Witness Retention Contract, Defendant acted within the terms of the signed agreement.

The Court SUSTAINS with leave to amend Defendant’s demurrer to the Second Cause of Action for Breach of Contract pursuant to Code of Civil Procedure section 430.10, subd. (e).

3. Third Cause of Action for Rescission and Fourth Cause of Action for Violation of Business and Professions Code ; 17200

“Rescission is a remedy that disaffirms the contract. [Citations.] Rescission extinguishes the contract (Civ.Code, ; 1688), terminates further liability, and restores the parties to their former positions by requiring them to return whatever consideration they have received.” (Sharabianlou v. Karp (2010) 181 Cal.App.4th 1133, 1145, as modified on denial of reh\'g (Mar. 3, 2010).) ““Rescission” means to “restore the parties to their former position.” (Young v. Flickinger (1925) 75 Cal.App.171, 174; accord, Sanborn v. Ballanfonte (1929) 98 Cal.App.482, 488.) “Rescission” is a “retroactive termination” of a contract, as compared to “cancellation,” which is a “prospective termination.”” (Nmsbpcsldhb v. County of Fresno (2007) 152 Cal.App.4th 954, 959.)

"... unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code. (Bus. & Prof. Code, ; 17200.)

Defendant argues that the Third Cause of Action for Recission and the Fourth Cause of Action for Unfair Competition and Business Practices (Violation of Business and Professions Code ; 17200) “are entirely based” on Plaintiff’s fraud claim. (Demurrer, p. 7:14.) Plaintiff argues in his Second Amended Complaint that he “is entitled to a declaration that the Expert Witness Retention Contract is rescinded and void ab initio” and the return of his $5,000 retainer because of Defendant’s alleged misrepresentations concerning billing in excess of the original retainer and the timing of the expert declaration produced. (SAC, ¶ 49-52; 56.) Defendant argues that the allegations used to support the demurred fraud claim undergird the Third Cause of Action. To support his Fourth Cause of Action Plaintiff “alleges that Dr. Marmureanu engaged in acts of unfair competition by his ‘failures to disclose and suppression of facts with regard to the retainer agreement and the signing of a declaration.’” (Demurrer, p. 7:25-27; SAC, ¶ 60.) Defendant considers this pleading wholly dependent on Plaintiff’s initial fraud claim. (Demurrer, p. 7:27.)

Plaintiff argues that he has alleged sufficient facts to state a cause of action for recission because of earlier allegations on fraud and mentions that he received no benefit for his payment of Defendant’s retainer. (Opposition, p. 8:7-8.) Plaintiff notes that the Fourth Cause of Action incorporates the rest of the SAC, and then argues that Defendant’s acts, “as herein alleged, constitute unlawful, unfair, fraudulent, and deceptive conduct as proscribed by California Business & Professions Code, Section 17200 et seq.” (SAC, ¶ 61.)

Plaintiff’s Third and Fourth Causes of Action require a finding of fraudulent action under the First Cause of Action. As indicated above, the Court is sustaining the demurer to the First Cause of Action. As a result, the Third and Fourth Causes of Action cannot survive.

The Court SUSTAINS with leave to amend Defendant’s demurrer to the Third Cause of Action for Rescission and the Fourth Cause of Action for Violation of Business and Professions Code ; 17200 pursuant to Code of Civil Procedure section 430.10, subd. (e).

IV. CONCLUSION

The Court SUSTAINS with leave to amend Defendant’s demurrer.

'


b"

Case Number: *******9462 Hearing Date: September 17, 2021 Dept: 34

SUBJECT: Motion to Reclassify

Moving Party: Defendant Alexander R. Marmureanu

Resp. Party: None

The Court DENIES the motion to reclassify.

PRELIMINARY COMMENTS:

As indicated below, the Court is denying the motion to reclassify. However, the Court must indicate that it is concerned about this case being filed in a general jurisdiction court. The case was filed by an attorney in pro per. We all know what is happening: this is a small case concerning a $5,000 retainer. If plaintiff weren’t an attorney, this case would have been filed in small claims court. Instead, because plaintiff is an attorney, he has added fraud, recission and UCL causes of action to inflate the value of the case.

The fact that the Court is denying this unopposed motion does not preclude the parties from agreeing between themselves to reclassify the case, or to settle the case and avoid attorney's fees that will vastly exceed the expected return to either party.

BACKGROUND:

On May 24, 2021, Plaintiff Law Offices of Marc Grossman, APC commenced this action. On June 22, 2021, Plaintiff filed the operative First Amended Verified Complaint (“FAC”) against Defendant Alexander R. Marmureanu for (1) fraud, (2) breach of contract, (3) recission, and (4) unfair competition and business practices.

On September 10, 2021, the Court granted Plaintiff leave to file a Second Amended Complaint. As of September 14, 2021, Plaintiff has not filed a Second Amended Complaint.

On August 8, 2021, Defendant filed the instant motion to reclassify this unlimited civil case to a limited civil case. Though Plaintiff was properly served, Plaintiff has not opposed the motion.

ANALYSIS:

A. Request for Judicial Notice

Defendant requests that the Court take judicial notice of the FAC in this action. The Court DENIES Plaintiff’s request for judicial notice as superfluous. (Cal. Rules of Court, rule 3.1110(d).) Any party that wishes to draw the Court’s attention to a matter filed in this action may simply cite directly to the document by execution and filing date. (See Cal. Rules of Court, rule 3.1110(d).)

B. Legal Standard

Actions in which the amount in controversy is $25,000 or less are classified as limited jurisdiction cases. (Code Civ. Proc. ; 86, subd. (a)(1).) California Code of Civil Procedure section 403.040 provides, in relevant part:

“(a) The defendant . . . may file a motion for reclassification

within the time allowed for that party to respond to the initial pleading. . . . The court shall grant the motion and enter an order for reclassification, regardless of any fault or lack of fault, if the case has been classified in an incorrect jurisdictional classification.

(b) If a party files a motion for reclassification after the time for

that party to amend that party’s initial pleading or to respond to a complaint, cross-complaint, or other initial pleading, the court shall grant the motion and enter an order for reclassification only if both of the following conditions are satisfied:

(1) The case is incorrectly classified.

(2) The moving party shows good cause for not seeking

reclassification earlier.”

(Code Civ. Proc. ; 403.040, subd. (a)-(b).)

The governing standard for reclassifying a case from unlimited to limited jurisdiction is found in Walker v. Superior Court (1991) 53 Cal. 3d 257. Pursuant to Walker, a trial court must conclude that the amount in controversy will “necessarily” fall short of the jurisdictional minimum before transferring a case from unlimited to limited jurisdiction. (Id. at p. 270.) “The [trial] court may believe it highly unlikely that plaintiff will recover the amount demanded, but this is not enough to defeat jurisdiction, unless it appears to a legal certainty that plaintiff cannot recover the amount which he has demanded.” (Ibid.)

Appellate courts have underscored the high threshold set by Walker: “[The plaintiff] may well not prevail on the factual disputes regarding the extent of his injuries…But a [Walker] hearing is not to be perceived as a mini-trial or an opportunity for a trial judge to put forth a well-educated guess of a verdict. The unlikeliness of a judgment in excess of $25,000 is not the test. The trial court reviews the record to determine whether the result is obtainable. Simply stated, the trial court looks to the possibility of a jurisdictionally appropriate verdict, not to its probability.” (Maldonado v. Sup. Ct. (1996) 45 Cal. App. 4th 397, 402.)

C. Discussion

Plaintiff’s FAC alleges damages greater than $25,000. (FAC, ¶

46.) Specifically, Plaintiff seeks special damages, general damages, punitive damages, and disgorgement of the $5,000 retainer. (FAC, Prayer for Relief.)

Defendant seeks to reclassify this case on grounds that Plaintiff

demands only $5,000 in money or damages, and Plaintiff fails to allege any facts supporting a verdict in excess of $25,000. (Mot., 4:25-5:3.)

Defendant relies solely on the FAC; however, “[w]ithout further evidence as to the value of the case, the allegations of the complaint preclude a finding that the verdict will “necessarily” fall short of the $25,001 jurisdictional requirement.” (Stern v. Superior Court (2003) 105 Cal.App.4th 223, 234.)

The Court DENIES the motion to reclassify.

"


related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases represented by Lawyer AHN ANDREW J.