Chavez v. McKneely

A general demurrer, “admits the truth of all material factual allegations in the complaint;” the plaintiff’s “ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court ....” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496; Stella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 190 [“We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.”].)

Defendant Mike McKneely demurs to each cause of action of the complaint filed by plaintiff Giovanni Chavez. The complaint4 alleges plaintiff hired defendant to provide legal representation for him in a criminal action. Defendant is alleged to have made representations of his opinions to plaintiff that discouraged him from pursuing trial and to instead accept a plea. Defendant is alleged to have refused to allow plaintiff to accept the plea based on plaintiff maintaining his innocence and requested to withdraw as counsel on this basis.

First Cause of Action: Breach of Contract

A cause of action for damages for breach of contract is comprised of the following elements: (1) the existence of a contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff. (Careau & Co. v. Security Pacific Business Center (1990) 222 Cal.App.3d 1371, 1388.)

Where plaintiff alleges breach of contract, “the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307). However, more recent California Supreme Court authority provides otherwise: “In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v.

TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198–199; see Miles v. Deutsche Bank National Trust Company (2015) 236 Cal.App.4th 394, 402 [“we are bound by our Supreme Court...plaintiff's failure either to attach or to set out verbatim the terms of the contract was not fatal to his breach of contract cause of action.”]; see also Pneucrete Corp. v. U.S. Fidelity & Guaranty Co. (1935) 7 Cal.App.2d 733, 741–742 [“That a contract may be pleaded in its legal effect and need not be set forth in haec verba is thoroughly settled”].)

To sufficiently allege a contract’s legal effect, plaintiff must allege the making of the contract, and then the substance of its relevant terms. (4 Witkin, Cal. Proc. (6th 2026) Plead. §§ 527-528.)

Here, the complaint alleges that plaintiff entered into a retainer with defendant, defendant breached the contract in various ways, and plaintiff was damaged as a result. (Complaint, ¶¶ 17-19.)

Defendant challenges the sufficiency of the allegations as no copy of a written agreement was attached to the complaint and there are no allegations attempting to plead the legal effect in lieu of attaching the written agreement. The court agrees that the contract is not sufficiently plead and additionally notes that there is no allegation as to whether the contract was written or oral. It is further unclear what damages resulted from the breach of contract. The general demurrer and special demurrer for uncertainty are sustained with leave to amend.

4 Defendant’s request for judicial notice of the complaint filed by plaintiff on November 14, 2025

is granted. (Evid. Code, § 452, subd. (d).) 9

Professional Negligence-Based Causes of Action

Plaintiff’s second cause of action for breach of fiduciary duty, third cause of action for legal malpractice/professional negligence, and sixth cause of action for wrongful refusal to follow client’s lawful decisions are restatements of the same allegations of legal malpractice under different titles. Defendant demurs to the second and sixth causes of action on the basis that they are duplicative of the third cause of action. The demurrer to the second and sixth causes of action on this basis is sustained. (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)

The elements of a cause of action for professional negligence are: (1) the duty of the professional to use such skill, prudence and diligence as other members of the profession commonly possess and exercise; (2) breach of that duty; (3) a causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional negligence.’ [Citation.]” (Loube v. Loube (1998) 64 Cal.App.4th 421, 429.)

Defendant demurs to the third cause of action alleging professional negligence as failing to state a cause of action and uncertain as plaintiff’s cannot allege damages. “To show damages proximately caused by the breach, the plaintiff must allege facts establishing that, ‘but for the alleged malpractice, it is more likely than not the plaintiff would have obtained a more favorable result.’ [Citations.]” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 179.)

Here, plaintiff’s underlying criminal case remains pending5, thus plaintiff has obtained no result against which he can establish he would have obtained a better result. As such, any damages alleged in the complaint are speculative and will not support a cause of action. (Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1509.) The speculative nature of the damages alleged further renders the complaint uncertain. As such, the general and special demurrer are sustained.

Plaintiff’s eighth cause of action alleging negligent infliction of emotional distress is premised on the claim for professional negligence and damages arising therefrom. (Complaint, ¶¶ 37-38.) Negligent causing of emotional distress is not an independent tort but, rather, rests on the tort of negligence. Thus, plaintiff must state a prima facie negligence action--i.e., the usual duty, breach, causation and damages elements apply. (Marlene F. v. Affiliated Psychiatric Med. Clinic, Inc. (1989) 48 Cal.3d 583, 588.) As plaintiff has pled only speculative damages in the professional negligence claim, the cause of action for emotional distress caused by this professional negligence is also subject to demurrer for failure to state a claim and is rendered uncertain.

Fraud-Based Causes of Action

Plaintiff’s fourth cause of action for constructive fraud and fifth cause of action for negligent misrepresentation sound in fraud and must be pleaded with specificity. (Hills Transp. Co. v. Southwest Forest Industries, Inc. (1968) 266 Cal.App.2d 702, 707.)

5 Defendant’s request for judicial notice of the court’s docket in Fresno Superior Court Case no.

F24905971 is granted. (Evid. Code, § 452, subd. (d).) 10

Accordingly, the policy of liberal construction of the pleadings “will not ordinarily be invoked to sustain a pleading defective in any material respect[;]” instead, this “particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73, internal citations and quotation marks omitted.)

The elements of constructive fraud cause of action are (1) a fiduciary or confidential relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive, and (4) reliance and resulting injury (causation.) (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1131.) While the complaint includes allegations of what was not disclosed to plaintiff, there are no allegations of defendant’s intent to deceive or plaintiff’s reliance. (See Complaint, ¶¶ 26-27.)

The elements of a cause of action for negligent misrepresentation are: (1) The defendant must have made a representation as to a past or existing material fact; (2) The representation must have been untrue; (3) Regardless of his actual belief the defendant must have made the representation without any reasonable ground for believing it to be true; (4) The representation must have been made with the intent to induce plaintiff to rely upon it; (5) The plaintiff must have been unaware of the falsity of the representation; he must have acted in reliance upon the truth of the representation and he must have been justified in relying upon the representation; and (6) As a result of his reliance upon the truth of the representation, the plaintiff must have sustained damage. (Christiansen v.

Roddy (1986) 186 Cal.App.3d 780, 785-786.) The allegations of the complaint include several purported false statements but fail to allege defendant’s having made the statements with intent to induce plaintiff’s reliance or that the statements were made without reasonable ground for believing them to be true. (Complaint, ¶¶ 28-29.)

As the complaint fails to allege facts to support every element of the fourth and fifth causes of action, the general demurrer to these causes of action is sustained. Additionally, as the nature of the damages alleges is speculative the cause s of action are also uncertain. The special demurrers are sustained.

Seventh Cause of Action: Intentional Infliction of Emotional Distress

The elements of a prima facie case of intentional infliction of emotional distress are: (1) outrageous conduct by the defendant; (2) intent to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of emotional distress. "Outrageous conduct" denotes conduct which is so extreme as to exceed all bounds of decency and which is to be regarded as "atrocious and utterly intolerable in a civilized community." (Bartling v. Glendale Adventist Medical Center (1986) 184 Cal.App.3d 961, 969.)

The complaint does not include allegations of any outrageous conduct on the part of the defendant. As a result, no cause of action is stated. The general demurrer is sustained. Although the conclusory allegation that plaintiff suffered emotional distress is inadequate to state a claim the inadequate pleading is not uncertain. The special demurrer to the seventh cause of action is overruled.

Motion to Strike

Defendant moves to strike the claims for punitive damages, special damages, emotional distress damages, and damages in the form of “prejudice in a criminal case.” Inasmuch as the general demurrer to each of the causes of action of the complaint was sustained, the claims for damages are stricken as well. Leave to amend is granted.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: JS on 6/15/2026. (Judge’s initials) (Date)

12