TANYA CARVALHO VS. ERIC HARTMAN et al

Complaint Information

COUNTY OF SAN FRANCISCO

TANYA CARVALHO, NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT HA% LEY lA e nded Plaintff, TO PLAINTIFF'S COMPLAINT FOR: "% LEGAL MALPRACTICE, BREACH OF vs. CONTRACT AND BREACH OF FIDUCIARY DUTY: PURSUANT TO HARTMAN ET AL, CALIFORNIA CODE OF CIVIL

PROCEDURE 8430.10, ET SEQ. Ao Defendant gesh: O2 \ Q4 —o- i3 Y E’“‘%}{ | DATE: March 17, 2014 e TIME: 9:30 A.M. DEPARTMENT: 302 ESTIMATED TIME: 10 minutes

C&EC-1~520773

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

e e 1 . e e e .l-e, e ArdetsS

PLEASE TAKE NOTICE that on March 17, 2014 at 9:30 am in Department 302 of the above-enlitled court, located at 400 McAllister Street, #400. San Francisco, CA 94104, Defendant JAMIE HARLEY will and hereby does move the Court for an order sustaining general and/or special demurrers to each count of the First Amended Complaint in this matter.

This demurrer is based upon the notice of hearing. the attached Demurrer, the Memorandum of Points and Authorities and upon such oral and documentary evidence as may b presented by Defendant at the hearing of the matter.

AUTHORITIES

MEMORANDUM OF POINTS AND AUTHORITIES

A. INTRODUCTION

Plaintiff filed her complaint against Defendant, and others on December 9, 2013.

Defendant HARLEY asserts that each cause of action fails to establish sufficient facts upon which a claim may be based. Each is vague, unintelligible, ambiguous and therefore uncertain within the meaning of California law. With respect to the Second Cause of Action, Plaintiff has failed to specify whether the contract she claims was breached was express, impled or oral.

The gravamen of Plaintiff’s Complaint is that all defendants were involved in a contractual relationship with Plaintiff as attorneys, a fiduciary duty was created thereby, and that such duty was breached by defendants, and that defendants committed malpractice. Defendant HARLEY asserts that absent facts to support an attorney-client relationship, each of the causes of action must fail. Defendant further alleges that the entirety of the First Amended Complaint 1 ambiguous, vague and so uncertain as to be unintelligible.

B. STATEMENT OF FACTS

1. “General Allegations”

A condition precedent to each of Plaintiff’s causes of action is the existence of an attorney-client relationship. Defendant HARLEY contends that Plaintiff has failed to plead adequate facts to demonstrate that such a relationship existed between HARLEY and Plaintiff. No express contract is pleaded, nor is one attached to the complaint, and Plaintiff has failed to plead sufficient facts to establish, in the alternative, either by oral promise or implicit agreement,

NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND

AUTHORITIES

that a contractual relationship was created between herself and HARLEY. Further, Plaintiff has failed to specify, as required by law, upon which form of contractual relationship she relies in claiming a breach thereof.

Each cause of action incorporates six paragraphs, or “General Allegations.” Paragraph 1 describes the Plaintiff, who resides in Alameda County. (Complaint 1: 21-22) Paragraph 2, (Complaint 1:23-26) alleges that all defendants were practicing law under various names in two counties (neither of which includes San Francisco). Paragraph 4 purports to establish that each defendant, despite the existence of multiple law offices and practice locations were each agents of the other, and “were acting in the course and scope of said agency, employment and/or representation, or in the alternative, ratified and approved the conduct of the other defendants.” (Complaint 2:4-6) No facts are cited to support this claim.

Paragraph 5 asserts that Defendants Dobbins, Harley Defense Associates, Harley, Stalcup and Does “were practicing together as an actual or ‘de facto’ partnership but failed to disclose this to Plaintiff, and instead advised her the [Defendants] Dobbins and Stalcup were not partners or employees of Harley Defense Associates, operated by [Defendant] Harley Defense Associates, operated by Jamie L. Harley aka Jamie L. Harmon.” (2: 8-12) No dates, locations or specific facts are alleged to support these conclusions.

Paragraph 6 concludes that “PLAINTIFF consulted with a retained defendants to provide her with legal counsel, advice and representation in a case arising out of an [sic] in connection with her employment and wrongful termination” involving racial discrimination. (2:13-15). Although several causes of action for the underlying action are described with some specificity,

NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND

AUTHORITIES

there 1s no mention of defendant(s) or proposed defendant(s). The only facts provided are that 7 “[t]he action was venued in the County of Alameda, California.” (2: 20) Plaintiff next asserts that “Defendants agreed to and did advise, and consult with plaintiff, about her case and eventually, represent PLAINTIFF in those proceedings...defendants’ representation of PLAINTIFF in the Superior Court Matter [sic] continued, and Plaintiff did not suffer damages until less than one year of the filing of this action.” (2:21-24)

No specific facts concerning whether an action was filed or any dates upon which that may have occurred are alleged, other than that Plaintiff did not suffer damages “until less than one year from the filing of this action.”

No dates or locations are specified concerning defendants’ advice, consultation and agreement to enter into an attorney-client relationship with Plaintiff. No facts are provided which detail the nature of such an agreement, whether explicit, oral or implied. Although Plaintiff apparently concludes Defendants represented her, there are no facts to support such a conclusion: there is no indication that any defendant took any specific action at any time. The very language used is ambiguous, failing to illuminate whether any defendant undertook representation of Plaintiff, or merely agreed to consult with her. The language of the entire paragraph is, in nearly every way, convoluted, vague and unintelligible.

2. First Cause of Action (Legal Malpractice)

The ostensible purpose of paragraph 8 of the complaint is entirely unclear. It doesg, however, provide the only general time frame in the entire document. “In June 2010, DEFENDANTS agreed to and did begin to provide legal services to PLAINTIFF...Defendants

NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND

AUTHORITIES

operated their practice(s) at ADDRESS and used the name “Harley Defense Associates.” Plaintiff alleges that, contrary to her previous allegation of agency between all defendants, “Defendants initially presented themselves to Plaintiff as independent attorneys sharing office space.” (3: 1-5) Plaintiff further claims that Defendant HARLEY was apparently not involved in this collaboration: “Defendants concealed from plaintiff that they were in fact ‘de facto’ partner or associates of Harley Defense Associates, Jamie L. Harley, aka, Jamie L. Harmon...” (3: 5-7) This language seems to specifically exclude defendant HARLEY from the relationship Plaintiff claims to have formed with other defendants. It would, in fact, be impossible to “conceal” defendant HARLEY s relationship with other defendants if she were present.

Plaintitf alleges that defendants were incompetent, that they lied to her and made false representations concerning their abilities “in order to persuade her to retain them and pay them.” No facts are alleged to support the claim of incompetence: no behaviors are ascribed to defendants with respect to their acts or omissions on Plaintiff’s behalf; there exist only the conclusions that defendants were incompetent, dishonest and incapable of handling some illuso legal concern relating to Plaintiff’s employment somewhere in Alameda County.

Paragraph 9, consistent with those which precede it, lacks any specificity as to the existence or absence of any defendants’ conduct. Plaintiff’s legal concern in Alameda County is described mysteriously, only as “the Underlying Matter” [sic]. Although Plaintiff previously indicated that defendants represented her “in the Superior Court Matter” [sic] (2: 22-23), here she controverts that claim by asserting that “DEFENDANTS failed to determine the correct date by which to file a legal action, and let that date pass without filing an action.” (3: 21) Plaintiff

NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND

AUTHORITIES

the breach by defendant of his contractual duties, Plaintiff has suffered the damages [sic] by not receiving the sums they were entitled to recover in the underlining [sic] matter.” (emphasis supplied) (5:15-17) Again Plaintiff prays for damages “as set forth below” and fails to set them forth anywhere. (5: 18) 4. Third Cause of Action (Breach of Fiduciary Duty)

This cause of action i1s incomplete, ending in the middle of a sentence at paragraph 18. Both page 4 and page 5 appear at the bottom of the page. Defendant has received two copies of Plaintiff’s First Amended Complaint, and both are identical. No facts are specified or set forth i the copies of the complaint which Defendant HARLEY has received which support a cause of action for breach of fiduciary duty. Further, no prayer for damages is offered. In addition to its

factual msufficiency, this cause of action fails for ambiguity and uncertainty.

C. ARGUMENT

Code of Civil Procedure §430.10 states in relevant part: “The party against whom a complaint...has been filed, may object by demurrer...to the pleading on any one or more of the following grounds... €) the pleading does not state facts sufficient to constitute a cause of action...f) the pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible...g) in an action founded upon a contract, it cannot be ascertained whether the contract 1s written, is oral or is implied by conduct.

Here, Plaintiff sets forth no facts which establish an attorney-client relationship between E herself and Defendant HARLEY. Apart from the conclusory statement that “Plaintiff consulted

NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND

AUTHORITIES