TRAN VS. HN INJURY LAWYERS

Defendants demurred to the original Complaint on res judicata grounds. (ROA 12.) In response, on 11/24/25, Plaintiff filed the FAC alleging six causes of action for (1) Legal Malpractice; (2) Breach of Fiduciary Duty; (3) Breach of Contract; (4) Constructive Fraud; (5) Unjust Enrichment; (6) Intentional Infliction of Emotional Distress. (ROA 24.)

In the FAC, Plaintiff alleges that on 9/16/20, he filed a motor vehicle personal injury action in San Bernardino County Superior Court, and retained defendant Hess & Nghiem, APC (“H&N”) to represent him pursuant to a written agreement. (FAC, ¶¶ 8-9.) Throughout the litigation, Plaintiff repeatedly instructed Defendants to reject premature settlement offers, which increased from $25,000 to $55,000 and later to $70,000, and proceed to jury trial. (FAC, ¶¶9, 12-17.) However, Defendants unilaterally filed a Notice of Settlement of the Entire Action on 10/4/23, and dismissed the action on 10/16/23, without his informed consent or authorization. (FAC, ¶ 9.)

Defendants failed to conduct adequate discovery and trial preparation, preserve critical evidence and expert testimony, honor Plaintiff’s express instructions to proceed to jury trial, disclose material facts regarding settlement negotiations, and protect Plaintiff’s interests in maximizing recovery for permanent injuries. (FAC, ¶ 10.) Defendants misrepresented the status of the case, pressured him to accept settlement, and fraudulently induced him to sign the release, depriving him of his right to trial and full recovery. (FAC, ¶ 20; see also ¶¶ 18-19, 22-25.)

Sham Pleading

Defendants argue the FAC should be disregarded as a sham pleading because Plaintiff filed the FAC to avoid the res judicata effect of the small claims judgment.

“Under the sham pleading doctrine, ‘[i]f a party files an amended complaint and attempts to avoid the defects of the original complaint by either omitting facts which made the previous complaint defective or by adding facts inconsistent with those of previous pleadings, the court may take judicial notice of prior pleadings and may disregard any inconsistent allegations.’ [Citation omitted.] Where no explanation for an inconsistency is offered, the trial court is entitled to conclude that the pleading party’s cause of action is a sham and sustain a demurrer without leave to amend. [Citation omitted.]” (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 447; see also Vallejo Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th 929, 946 [“a court is ‘not bound to accept as true allegations contrary to factual allegations in former pleading in the same case.’ ”].)

Both the complaint in the Small Claims Action and the original Complaint in this action concern a fee dispute pursuant to a retainer agreement. After Defendants filed a demurrer on res judicata grounds, Plaintiff filed the FAC adding professional misconduct

allegations to the fee dispute allegations. However, the FAC does not omit facts since the fee dispute allegations are included in the FAC’s breach of contract cause of action. (See FAC, ¶¶ 48, 50.) Nor have Defendants identified any new facts alleged in the FAC that are inconsistent with the prior pleading in this action. (See Vallejo Development Co., supra, 24 Cal.App.4th at p. 946.) Thus, the sham pleading doctrine does not apply.

Res Judicata

The doctrine of res judicata has two aspects—claim preclusion and issue preclusion. (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824.) “Claim preclusion arises if a second lawsuit involves: (1) the same cause of action, (2) between the same parties, (3) after a final judgment on the merits in the first suit. If claim preclusion is established, it bars relitigation of the claim. [¶] Issue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action.

Under issue preclusion, the prior judgment conclusively resolves an issue actually litigated and determined in the first action. There is a limit to the reach of issue preclusion, however. In accordance with due process, it can be asserted only against a party to the first lawsuit, or one in privity with a party.” (Ibid. [cleaned up].) Similarly, “claim preclusion applies only to the relitigation of the same cause of action between the same parties or those in privity with them.” (Id. at p. 825 [emphasis in original].)

Small claims judgments are claim preclusive. (Pitzen v. Superior Court (2004) 120 Cal.App.4th 1374, 1381.) However, they are not issue preclusive. (Sanders v. Walsh (2013) 219 Cal.App.4th 855, 871; accord Sanderson v. Niemann (1941) 17 Cal.2d 563.)

“To determine whether two proceedings involve identical causes of action for purposes of claim preclusion, California courts have consistently applied the ‘primary rights theory.” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797 [cleaned up].) Under the primary rights theory, “[t]he ‘cause of action’ is based upon the harm suffered, as opposed to the particular theory asserted by the litigant. Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief.

Hence a judgment for the defendant is a bar to a subsequent action by the plaintiff based on the same injury to the same right, even though he presents a different legal ground for relief. Thus, under the primary rights theory, the determinative factor is the harm suffered. When two actions involving the same parties seek compensation for the same harm, they generally involve the same primary right.” (Id. at p. 798 [cleaned up; emphasis in original].)

Here, it cannot be determined at the pleading stage whether claim preclusion applies because it is unclear whether the Small Claims

Action and the instant action concern the same retainer agreement. The retainer agreement at issue in this action is attached to the original Complaint and the FAC. However, the retainer agreement at issue in the Small Claims Action is not one of the documents submitted for judicial notice. Defendants conclude, without support, that the agreement attached to the original Complaint and FAC is “indisputably, the same agreement as alleged in the Small Clams action.” (Dem., p. 9:14-16.) Similarly, it is unclear if the two actions involved the same parties or those in privity with the same parties. In both actions, Plaintiff sued HN Injury Lawyers. However, Plaintiff amended the Complaint to name Defendants, omitting HN Injury Lawyers. The pleadings and the judicially noticed documents do not establish Defendants are in privity with HN Injury Lawyers.

Therefore, the demurrer is overruled on this ground.

Statute of Limitations

Defendants contend this legal malpractice action is barred by the one-year statute of limitations under Code of Civil Procedure section 340.6, subdivision (a). Plaintiff contends he has alleged actual fraud which is governed by the three-year statute of limitations under Code of Civil Procedure, section 338, subdivision (d).

“To determine the statute of limitations which applies to a cause of action it is necessary to identify the nature of the cause of action, i.e., the ‘gravamen’ of the cause of action. [Citations.] [T]he nature of the right sued upon and not the form of action nor the relief demanded determines the applicability of the statute of limitations under our code.” (Gutierrez v. Tostado (2025) 18 Cal.5th 222, 231 [cleaned up].)

Code of Civil Procedure section 340.6, subdivision (a), provides:

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.

Section 340.6, subdivision (a), “applies to claims whose merits necessarily depend on proof that an attorney violated a professional obligation in the course of providing professional services. In this context, a ‘professional obligation’ is an obligation that an attorney has by virtue of being an attorney, such as fiduciary obligations, the obligation to perform competently, the obligation to perform the services contemplated in a legal services contract into which an attorney has entered, and the obligations embodied in the Rules of Professional Conduct.” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1236– 1237.)

Here, the FAC’s six causes of action for legal malpractice, breach of fiduciary duty, breach of contract, constructive fraud, unjust enrichment, and intentional infliction of emotional distress “depend on proof that an attorney violated a professional obligation in the course of providing professional services. (Lee, supra, 61 Cal.4th at pp. 1236–1237.)

The gravamen of the FAC’s six causes of action is that Defendants’ breached their professional obligations to Plaintiff — the duty perform professional services competently and to give timely, competent and truthful professional advice about the status of his legal action and his options as a result thereof, including settlement. These causes of action therefore “depend on proof that an attorney violated a professional obligation in the course of providing professional services. (Lee, supra, 61 Cal.4th at pp. 1236–1237.) Accordingly, they are governed by section 340.6, subdivision (a). This conclusion extends to the fourth cause of action for constructive fraud because the “actual fraud” exception to section 340.6, subdivision (a), “does not extend to claims of constructive fraud.” (Austin v. Medicis (2018) 21 Cal.App.5th 577, 587; Code Civ. Proc., § 340.6, subd. (a).)

Contrary to Plaintiff’s contention, the FAC does not allege actual fraud. Plaintiff’s bare allegations that Defendants falsely stated trial was “years away”, the settlement had already been approved, and the case was already dismissed (FAC ¶¶ 18, 19, 22) does not state a cause of action for fraud or transform this entire action into one for fraud.

Regarding accrual, the FAC alleges: “Throughout the litigation Plaintiff repeatedly instructed Defendants to reject premature settlement offers and proceed to jury trial.” (FAC, ¶ 9.) Plaintiff was initially offered a settlement of $25,000, which he rejected . . .” (FAC, ¶ 12.) “[T]he settlement offer increased to $55,000. Plaintiff again refused, stating his minimum acceptable settlement was $250,000.” (FAC ¶ 16.) “The offer was later raised to $70,000, but Plaintiff continued to reject settlement and instructed Defendants to proceed to jury trial.” (FAC, ¶ 17.) “Around September 24, 2023— near Plaintiff’s birthday—Defendants called Plaintiff and falsely stated that the settlement had already been approved and that the Dismissal of Entire Action had already been submitted to the San Bernardino Superior Court.” (FAC, ¶ 18.)

Given Plaintiff’s express instructions to reject the settlement offers and proceed to trial, Plaintiff knew as early as 9/24/23, that Defendants had violated his express instructions. However, Plaintiff did not commence this action until 5/27/25, more than 19 months later. Thus, this action is time-barred.

Plaintiff contends the delayed discovery rule applies because he did not discover the fraud until 11/4/24, when he accessed the court docket via Trellis and discovered the trial had actually been

scheduled for just months later rather than years away, proving Defendants’ statements were categorically false. (See FAC ¶ 23.) The docket is attached to the FAC and is dated 11/4/24. (FAC, ¶ 24, Ex. B.)

Plaintiff’s argument lacks merit. Plaintiff’s discovery of wrongdoing on 9/24/23 triggered the one-year limitations period to diligently investigate and bring suit. The court’s docket was available online. Plaintiff could have accessed it any time after realizing Defendants did not follow his instructions. He failed to do so until 11/4/24.

The demurrer is sustained with 20 days leave to amend.

13. LAW OFFICES OF MARK B. PLUMMER, PC VS. NETWORKSOLUTIONS.COM 2020-01141868 1. DEMURRER TO AMENDED COMPLAINT

Defendant Nili Alai, M.D.’s Demurrer to Plaintiffs’ First Amended Complaint is OVERRULED.

Alai’s request for judicial notice (ROA 606) of filings in various court proceedings is granted.

Defendant demurs to the first cause of action for defamation and the fourth cause of action for declaratory relief. The First Amended Complaint (FAC) was filed on 1/25/21.

Alai filed a motion to deem Plaintiff a vexatious litigant an anti- SLAPP motion to strike on 2/2/21, automatically staying the litigation. Alai’s counsel filed a declaration under Code of Civil Procedure section 430.41 on 3/15/21 stating they intended to meet and confer regarding a demurrer.

On 11/4/21, the Court ruled this action was stayed pending the appellate court’s resolution of the appeal regarding Defendant’s anti-SLAPP motion. A remittitur was issued on 12/9/22.

Alai’s vexatious litigant motion was denied on 2/9/23.

On 4/27/23, the Court stayed the matter “pending resolution of” another anti-SLAPP appeal. On 8/15/24, the remittitur in the second appeal was issued. In summary, the case was stayed between approximately February 2021 and August 2024.

Defendant filed an Answer to the FAC on 12/6/24.

The Demurrer was filed on 12/4/25.

In opposition, Plaintiffs contend Alai improperly filed the demurrer after filing her answer, which is incorrect as stated above.

However, Plaintiffs also argue the subject demurrer had to be filed within 30 days of the remittitur issued on 8/15/24, which lifted the stay that had been in effect since 2/2/21. Alai does not respond to