MARYAM KHANI VS BOBBY BABAK SAADIAN, ET AL.

Tentative Rulings

Case Number: *******6639 Hearing Date: February 17, 2023 Dept: 32

BACKGROUND

On August 17, 2022, Plaintiff filed this legal malpractice action against Defendants Bobby Babak Saadian and Wilshire Law Firm, PLC. Plaintiff filed the operative First Amended Complaint on December 6, 2022, asserting causes of action for (1) legal malpractice, (2) breach of fiduciary duty, and (3) fraud.

On January 23, 2023, Defendants filed the instant demurrer to the FAC. Plaintiff has not filed an opposition.

LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc., 430.30, subd. (a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.) A complaint will survive demurrer if it sufficiently apprises the defendant of the issues, and specificity is not required where discovery will clarify the ambiguities. (See Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608.) All reasonable inferences are drawn in favor of the complaint. (Kruss v. Booth (2010) 185 Cal.App.4th 699, 713.)

MEET AND CONFER

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., 430.41, 435.5.) The Court notes that Defendant has complied with the meet and confer requirement. (Miller Decl. 5-7.)

DISCUSSION

I. Legal Malpractice and Breach of Fiduciary Duty

a. Statute of Limitations

“An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first.” (Code Civ. Proc., 340.6(a).)

Defendants argue that the FAC fails to identify “(a) when the alleged wrongful conduct occurred, (b) when the underlying case was resolved, (c) when the Plaintiff received her distribution from the underlying settlement (i.e. after attorney’s fees, costs, and medical expenses had been paid), (d) when the Plaintiff allegedly suffered harm as a result of the alleged wrongful conduct, or (e) when the attorney client relationship ended.” (Dem. 6:15-19.) Defendants contend that if Plaintiff had alleged these facts, it would become clear that her causes of action are barred by the statute of limitations, because “Plaintiff’s underlying matter had settled and all funds had been distributed to her well over a year prior to this lawsuit.” (Dem. 7:1-5.)

However, a statute of limitations defense does not appear on the face of the complaint. The FAC alleges that Defendants represented Plaintiff in the underlying action from September 2020 to July 2022 and that Plaintiff did not discover the causes of action until July 2022. (FAC 14, 22.) These facts do not indicate that Plaintiff discovered her injuries over one year prior to the lawsuit.

Plaintiff is not required to allege the dates of particular occurrences so long as the complaint adequately places Defendants on notice of the nature of the claims. Defendants rely on Gonzales v. State of California (1977) 68 Cal.App.3d 621, where additional details were required in a complaint due to the nature of that particular case. In Gonzales, the plaintiffs had their drunk driving convictions declared unconstitutional and filed suit accusing the State of improperly withholding money received as fines. (Id. at p. 626.) In that context, the court held that “in order for the individual plaintiffs to state a cause of action it was incumbent upon them to plead that the prior convictions in the instant case were vacated or set aside in the court in which the prior conviction was obtained and the sentence imposed,” as well as “set forth when the alleged causes of action arose and when the setting aside of the previous convictions occurred.” (Id. at p. 634.) Notably, the plaintiffs in Gonzales had “joined every county and city in this state as a defendant to this action. It would stretch credulity to assert that each of said defendants is presumed to know the court or jurisdiction in which plaintiffs' subject convictions have been declared unconstitutional and void.” (Id. at pp. 634-35.)

The circumstances that rendered the complaint uncertain in Gonzales are not present here. Gonzales does not stand for the proposition that all complaints are uncertain if they do not specify the dates of pertinent events. If Defendants are certain that the causes of action are time-barred, they are free to prove so, but that does not alter the standard on demurrer. In fact, Defendants’ confidence in a statute of limitations defense indicates that the complaint was clear enough to place Defendants on notice of the claim and thereby recognize which defense to pursue. It also shows that Defendants are aware of the facts supporting such a defense. Defendants’ own caselaw acknowledges that a complaint is not uncertain where material facts are “presumptively within the knowledge of defendant.” (See Gonzales, supra, 68 Cal.App.3d at p. 635.) Even if the complaint does not allege the dates of certain events, Defendants are aware of those facts or are capable of ascertaining them in discovery.

Therefore, the legal malpractice and fiduciary duty claims are not uncertain or barred by the statute of limitations.

b. Damages

Defendants argue that the complaint fails to “identify that the result actually would have resulted in a higher collectible verdict or settlement or that the liens asserted by the Plaintiff’s health care providers would not have necessitated the same payment amounts.” (Dem. 8:6-9.) Defendants emphasize that causation is an essential element of these claims.

However, the FAC details the alleged breaches of duty and the resulting damages. (FAC 11, 13, 17, 18.) In particular, Plaintiff alleges that due to Defendants’ poor advice, she resolved the underlying lawsuit for an insufficient amount, was exposed to payment for health care that should have been covered by insurance, was charged for unnecessary medical care, and signed a lien in favor of the health care providers. (FAC 13.) It can be inferred from these allegations that but for Defendants’ alleged malpractice, Plaintiff would have obtained a higher settlement and not owed as much money to health care providers.

Defendants are free to disprove damages or causation, but as discussed above, the allegations are sufficient to place Defendants on notice.

II. Fraud

“The elements of fraud that will give rise to a 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.’” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974, quoting Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Fraud must be pleaded with specificity rather than with general and conclusory allegations. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made. (Lazar, supra, 12 Cal.4th at p. 645.)

The FAC lacks the requisite specificity for fraud. The allegations attribute a multitude of statements to Defendant Saadian over the entire course of the representation without specifying how or when those statements were made to Plaintiff. (See FAC 22.)

CONCLUSION

Defendants’ demurrer is SUSTAINED with leave to amend as to the third cause of action and OVERRULED in all other respects.

Case Number: *******6639 Hearing Date: December 9, 2022 Dept: 32

BACKGROUND

On August 17, 2022, Plaintiff filed this legal malpractice action against Defendants Bobby Babak Saadian and Wilshire Law Firm, PLC. On November 9, 2022, Plaintiff filed the instant motion to compel the deposition of Defendant Saadian, the managing attorney of Defendant Wilshire Law Firm. Defendant invokes the apex doctrine in opposition.

LEGAL STANDARD

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document … described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document … described in the deposition notice.” (Code Civ. Proc., 2025.450, subd. (a).)

DISCUSSION

The “apex doctrine” protects high-level officers of an organization from depositions when the officer has no first-hand knowledge of the facts of the case or where the officer’s testimony would be repetitive. (Liberty Mut. Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1289.) To depose an officer at the apex of an organization requires “a reasonable indication of the officer’s personal knowledge of the case and . . . exhaustion of less intrusive discovery methods.” (Id. at p. 1287.) “The rule applies to officials summoned to testify as third parties as well as those who are named defendants.” (Westly v. Superior Court (2004) 125 Cal.App.4th 907, 910.) “An exception to the rule exists only when the official has direct personal factual information pertaining to material issues in the action and the deposing party shows the information to be gained from the deposition is not available through any other source.” (Id. at p. 911.)

Here, Plaintiff’s only bases for deposing Saadian is that Saadian heads the law firm that represented Plaintiff in the underlying case and that Saadian is a defendant. Neither of these are sufficient reasons to compel Saadian’s deposition. (See Westly, supra, 125 Cal.App.4th at pp. 910-11.) Plaintiff does not dispute the evidence that two other attorneys from the firm handled Plaintiff’s case. (Miller Decl. 3-4, Ex. 1-2.) Plaintiff does not present any evidence that Saadian has personal knowledge of relevant facts or that those facts cannot be obtained from any other source. It is Plaintiff’s burden to establish these elements when seeking to depose the head of an organization. Plaintiff has not done so. Therefore, the deposition is barred under the apex doctrine.

CONCLUSION

Plaintiff’s motion to compel deposition is DENIED. Sanctions are denied as the parties acted with substantial justification.