Nicholas DiSalvo v. Nancy Bucknell

9:00 25CV469523 Sara Taghizadeh Order on Defendant Solimani’s 1 v. Demurrer to Plaintiff’s First Nezhat Solimani, M.D., et al. Amended Complaint and Motion to Strike Portions of Plaintiff’s First Amended Complaint

See Line 1 below for complete tentative ruling.

After the hearing, the Court will prepare and file one formal Order on Defendant Solimani’s Demurrer and Motion to Strike.

9:00 25CV469523 Sara Taghizadeh Order on Defendant Solimani’s 2 v. Motion to Strike Portions of Nezhat Solimani, M.D., et al. Plaintiff’s First Amended Complaint

See Line 1 below for complete tentative ruling on Defendant Solimani’s Motion to Strike.

After the hearing, the Court will prepare and file one formal Order on Defendant Solimani’s Demurrer and Motion to Strike.

9:00 25CV481555 Nicholas DiSalvo Order on Defendant Bucknell’s 3 v. Demurrer to Plaintiff’s Complaint Nancy Bucknell See Line 3 below for complete tentative ruling.

After the hearing, the Court will prepare and file the formal Order.

Line 3 Case Name: Nicholas DiSalvo v. Nancy Bucknell Case No.: 25CV481555 Defendant Nancy Bucknell (“Defendant”) demurs under Code of Civil Procedure Sections 430.10 et seq. to Plaintiff’s Complaint on the grounds that it fails to state facts sufficient to constitute his causes of action for (1) legal malpractice); (2) breach of fiduciary duty; and (3) intentional infliction of emotional distress. Notice of Demurrer (the “Demurrer”) at 1:22-2:2 (filed: Jan. 14, 2026).

The Demurrer came on for hearing on August 26, 2026, at 9:00 AM in Department 16. After reviewing all the papers and the record, and giving counsel for all parties the full and fair opportunity to be heard, the Court finds and rules as follows.

Defendant Nancy Bucknell (“Defendant”) demurs under Code of Civil Procedure Sections 430.10 et seq. to Plaintiff’s Complaint on the grounds that it fails to state facts sufficient to constitute his causes of action for (1) legal malpractice); (2) breach of fiduciary duty; and (3) intentional infliction of emotional distress. Notice of Demurrer (the “Demurrer”) at 1:22-2:2 (filed: Jan. 14, 2026).

The Demurrer came on for hearing on August 26, 2026, at 9:00 AM in Department 16. After reviewing all the papers and the record, and giving counsel for all parties the full and fair opportunity to be heard, the Court finds and rules as follows.

I. Factual Allegations

According to the fact allegations of the Complaint, Defendant Nancy Bucknell represented Plaintiff in two separate domestic violence criminal matters in Santa Clara County Superior Court from 2021 to 2025, case numbers C2406224 and C2412653. (Complaint at 2:11-13)

During the representation, Defendant referred Plaintiff to Danis Bucknell, Defendant’s cousin-in-law, for services as a “life coach” without disclosing their familial relationship. From 2023 to 2025, Plaintiff paid the life coach Danis Bucknell “for therapeutic help and received terror” by being told “horrific secrets about Defendant” Nancy Bucknell while “simultaneously extracting Plaintiff’s own trauma.” (Complaint at 2: 14-18)

During Plaintiff’s interactions with Defendant, she allegedly made racist and sexually inappropriate comments, repeatedly ignored communications, habitually

interrupted plaintiff, spoke over him, and spoke to him in a condescending and belittling tone. (Complaint at 2: 22-28)

In July 2025, Defendant allegedly sabotaged plaintiff’s plea deal, forcing Plaintiff to accept a misdemeanor battery conviction he was never supposed to take. Plaintiff subsequently retained Attorney Stephanie Rickard, who corrected the plea. During this time, Defendant became aware of Plaintiff’s familiarity with aspects of her personal life and subsequently sent a scathing email to her cousin, Danis Bucknell’s spouse, disclosing confidential information about Plaintiff. (Complaint at 2:19-21, 24-26, 3:3-6)

After the resolution of the criminal cases, Defendant refused to return Plaintiff’s complete client file despite four written demands. (Complaint at 3: 6-7)

Plaintiff initiated this action by filing his Complaint on December 10, 2025, asserting causes of action for (1) legal malpractice, (2) breach of fiduciary duty, and (3) intentional infliction of emotional distress.

II. Legal Standard on Demurrer

“The party against whom complaint or cross-complaint has been filed may object, by demurrer or answer as provided in [Code of Civil Procedure] section 430.30, to the pleading on any one or more of the following grounds: . . . (e) The pleading does not state sufficient facts to constitute cause of action, (f) The pleading is uncertain.” (C.C.P. § 430.10(e) & (f).)

A demurrer may be used by “[t]he party against whom complaint has been filed” to object to the legal sufficiency of the pleading as whole, or to any “cause of action” stated therein, on one or more of the grounds enumerated by statute. (C.C.P. §§ 430.10 & 430.50(a).)

A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Redfearn v. Trader Joe’s Co. (2018) 20 Cal. App. 5th 989, 996.) The court must determine “whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Ibid.) The court assumes “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.” (Ibid.) Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer. (Erlach v. Sierra Asset Servicing, LLC, (2014) 226 Cal. App. 4th 1281, 1291.)

Courts “give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Goncharov v. Uber Techs., Inc. (2018) 19 Cal. App. 5th 1157, 1165.) Courts “construe the complaint ‘liberally ... with a view to substantial justice between the parties[.]’” (Ibid.) “A demurrer must dispose of an entire cause of action to be sustained.” (Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal. App. 4th 97, 119.)

Under Code. Civ. Proc. § 430.10(f), a demurrer may also be sustained if a complaint is uncertain i.e., ambiguous and unintelligible. Demurrers for uncertainty are

granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond. 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. (See, A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695; internal citation and quotes omitted.)

Under California law, even if a demurrer is sustained, leave to amend the complaint is routinely granted. “Liberality in permitting amendment is the rule, if fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal. App. 4th 1217, 1227.) “Unless the complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion, irrespective of whether leave to amend is requested or not.” (McDonald v. Sup. Ct. (Flintkote Co.) (1986) 180 Cal. App. 3d 297, 303-304.)

III. Request for Judicial Notice by Defendant

Defendant requests judicial notice of the following documents:

Exhibit A - People v. DiSalvo, Nicholas, Santa Clara County Superior Court, Case No.: C2406224, sentencing minute order entered on July 16, 2025.

Exhibit B - People v. DiSalvo, Nicholas, Santa Clara County Superior Court, Case No.: C2412653, sentencing minute order entered on October 1, 2025.

Defendant’s request is GRANTED, IN PART. The existence of these documents may be judicially noticed pursuant to Evid. Code § 452(d). While the Court can and does here take judicial notice of the truth of facts asserted in these documents such as orders, Judgments, findings of fact and conclusions of law, it cannot and does not take judicial notice of any contained hearsay statements. (See, Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879.)

IV. Analysis of the Demurrer

As an initial matter, the Court notes with disapproval Plaintiff’s failure to cite any legal authorities in support of his opposition. California Rules of Court, Rule 3.1113 requires a memorandum that “contain[s] a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (California Rules of Court, Rule 3.1113(b); emphasis added.). Therefore, a party’s failure to provide a memorandum as required by the Rule may be considered an “admission that the [opposition] is without merit and cause for its denial.” (Cal. Rules of Court, Rule 3.1113(a), (b); In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 976.)

Nonetheless, under the strong policy of California law to resolve matters on their merits, the Court now addresses the merits of Defendant’s Demurrer and Plaintiff’s Opposition.

A. The First Cause of Action for Legal Malpractice is Deficiently Pleaded

To state a cause of action for legal malpractice, a plaintiff must allege (1) the duty of the defendant attorney to use such skill, prudence, and diligence as members of the profession commonly possess and exercise; (2) a breach of that duty; (3) a resulting injury proximately caused by the breach; and (4) actual loss or damage. In an action for legal malpractice by a criminal defendant against his/her defense attorney, the criminal defendant must prove his/her actual innocence of the criminal charges as a necessary element of the action. (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 536-537, 545; Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1200.)

“Public policy considerations require that only an innocent person wrongly convicted be deemed to have suffered a legally compensable harm. Unless a person convicted of a criminal offense is successful in obtaining postconviction relief, the policies reviewed in Wiley preclude recovery in a legal malpractice action.” (Coscia, supra, 25 Cal.4th at p. 1201.) This requirement applies regardless of whether the conviction resulted from guilty or nolo contendere pleas or trial. (Id. at p. 1205.)

Here, the judicially-noticed court records establish that Plaintiff entered pleas of no contest to criminal charges in two separate cases. On July 16, 2025, Plaintiff entered a no contest plea to violating Penal Code section 166(c)(1) in case number C2406224. On October 1, 2025, Plaintiff entered a no contest plea to violations of Penal Code sections 243(e)(1) and 166(c)(1) in case number C2412653. Both minute orders reflect that judgment was entered, sentencing occurred, and probation was granted.

The Complaint does not allege that Plaintiff is actually innocent of these charges. Instead, the Complaint alleges that Defendant sabotaged the plea deal by forcing Plaintiff to accept convictions. A successor attorney corrected the plea, thereby allegedly saving Plaintiff from the sabotage. (Complaint at 2:19-25) These allegations go to whether Plaintiff received a favorable plea bargain, not to whether Plaintiff committed the underlying offenses. The fact that the successor counsel subsequently “corrected the plea” does not establish innocence; it suggests only that a different resolution was negotiated. Hence, the Complaint’s focus on the negotiated outcome rather than factual innocence is fatal to the malpractice claim under Wiley.

In opposition, Plaintiff argues that the claims arise from Defendant’s conduct outside the criminal judgment itself, including billing misconduct, conflicts of interest, and abandonment. However, Plaintiff’s Opposition fails for two independent reasons:

1. Plaintiff has not opposed Defendant’s argument on lack of innocence, nor has he submitted any argument on this issue in his opposition. Failure to address an issue in the memorandum may be construed as a concession on the merits of that issue. (California Rules of Court Rule 3.1113(a); See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 [failure to oppose issue raised in demurrer deemed abandonment of the issue].)

2. Plaintiff’s first cause of action specifically alleges malpractice in connection with the criminal representation and plea negotiations; not in connection with billing misconduct and/or abandonment. To the extent Plaintiff suffered harm from an unfavorable criminal outcome, that harm is attributable to the antecedent criminality established by the no contest pleas absent an allegation of actual innocence. Plaintiff has neither alleged nor established postconviction relief in the underlying criminal cases. As actual innocence is an element of this cause of action, and the Complaint fails to plead facts showing Plaintiff’s actual innocence, this cause of action is deficiently pleaded because it does not plead facts sufficient to constitute this cause of action.

Accordingly, Defendant’s Demurrer to the First Cause of Action for Legal Malpractice is SUSTAINED under Code of Civil Procedure Section 430.10(e) for its failure to plead facts sufficient to constitute this cause of action.

However, while this cause of action is deficiently pleaded, the Complaint does not show on its face that it is incapable of amendment; it is conceivable that Plaintiff might be able to cure the pleading deficiencies identified above in a First Amended Complaint. Accordingly, under the liberal amendment standards of McDonald, supra, 180 Cal. App. 3d at 303-304, supra, the Court SUSTAINS the demurrer to Plaintiff’s First Cause of Action but gives Plaintiff LEAVE TO AMEND to file a First Amended Complaint within 10 days of today to try to cure the pleading deficiencies identified in this Order if he can do so truthfully.

B. The Second Cause of Action for Breach of Fiduciary Duty is Sufficiently Pleaded.

To plead a cause of action for breach of fiduciary duty, a plaintiff must allege facts showing the existence of a fiduciary duty owed to that plaintiff, a breach of that duty and resulting damage. (Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 524.) A fiduciary duty is founded upon a special relationship imposed by law or under circumstances in which “confidence is reposed by persons in the integrity of others” who voluntarily accept the confidence. (Tri-Growth Centre City, Ltd. v. Silldorf, Burdman, Duignan & Eisenberg (1989) 216 Cal.App.3d 1139, 1150.) “[A] breach of fiduciary duty is a species of tort distinct from a cause of action for professional negligence.” (Stanley v. Richmond (1995), 35 Cal.App.4th 1070, 1086.)

There is no dispute Defendant owed Plaintiff a fiduciary duty stemming from their attorney-client relationship. The disputed issue is whether Defendant breached this duty. The Complaint alleges several distinct breaches of fiduciary duty:

• Defendant referring Plaintiff to Danis Bucknell for life coaching services without disclosing that Danis was Defendant’s cousin-in-law, despite their shared surname. This allegation by itself may constitute a breach of the duty of loyalty by creating an undisclosed conflict of interest or business relationship. (Complaint at 2:14-18)

• Defendant violating attorney-client confidentiality by sending an email “containing plaintiff’s confidential information” to Danis Bucknell’s husband (Defendant’s cousin) after learning that Ms. Bucknell had disclosed family secrets to Plaintiff. The Complaint states that this occurred in July 2025, immediately after which Ms. Bucknell sent frantic texts to Plaintiff expressing fear that the disclosure would “ruin my family” and cause her husband to “hate me.” This allegation by itself may constitute a breach of the duty of confidentiality owed to a client. (Complaint 3:3-6)

• Defendant repeatedly ignoring communications and refusal to return the complete client file despite four written demands. The failure to communicate and the refusal to return client property may constitute breaches of the duties of communication and diligence. (Complaint at 2:26, 3:6-7.)

These fact allegations, which California law requires this Court to deem to be true for purposes of resolving this Demurrer, establish a pattern of conduct that collectively supports a claim for breach of fiduciary duty. However, Defendant argues that these allegations are insufficient to state a cause of action since Plaintiff fails to establish any resulting damages. (Demurrer at 4:21-22) The Court respectfully disagrees.

Plaintiff alleges that he “remains in therapy specifically for the terror, betrayal, and emotional harm inflicted” by Defendant and Danis Bucknell. (Complaint at 3:8-9) Accepting the Complaint’s allegations as true, as the Court must for purposes of resolving this Demurrer, Plaintiff’s allegation sufficiently satisfies the causation element to defeat the demurrer. Defendant’s argument that the therapy costs can be attributed to domestic violence trauma and not her misconduct (Demurrer at 5:21-24), presents a dispute of fact cannot be resolved on Demurrer. To be sure, it’s quite possible that on summary judgment or at trial Defendant will win on this issue. But not today at the pleading stage in the context of this Demurrer.

Therefore, Defendant’s demurrer to Plaintiff’s Second Cause of Action for Breach of Fiduciary Duty is OVERRULED.

C. The Third Cause of Action for Intentional Infliction of Emotional Distress (IIED) is Sufficiently Pleaded.

To state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by defendant; (2) defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by defendant’s outrageous conduct. (Yau v. Allen, 229 Cal. App. 4th 144, 160-161.)

“Severe emotional distress means emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Bock v. Hansen, 225 Cal. App. 4th 215, 233; internal citations and quotes omitted)

“Conduct, to be ‘outrageous’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society. In order to avoid a demurrer, the plaintiff must allege with ‘great [] specificity’ the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832; internal citations and quotes omitted.) The tort does not extend to “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Cochran v. Cochran, (1998) 65 Cal. App. 4th 488, 496.)

Defendant argues that the alleged conduct—interrupting Plaintiff, speaking in a condescending tone, and making inappropriate comments—does not rise to the level of extreme and outrageous conduct required for IIED. Defendant further contends that Plaintiff fails to allege severe emotional distress specifically resulting from Defendant’s conduct, as opposed to distress from the domestic violence proceedings or interactions with Danis Bucknell.

While the Complaint does not allege isolated instances of rudeness, it alleges a sustained pattern of conduct over multiple years including: (1) creating an undisclosed conflict of interest by referring Plaintiff to a family member; (2) habitual belittling and mockery causing Plaintiff to leave “in tears” after ninety percent of contacts; (3) deliberately sabotaging a plea agreement; (4) ambushing and mocking Plaintiff in front of witnesses while refusing to provide a remedy; (5) breaching client confidentiality by sharing information with family members; and (6) refusing to return client property. As to severe emotional distress, the complaint alleges that Plaintiff “remains in therapy specifically for the terror, betrayal, and emotional harm inflicted” by Defendant and Danis Bucknell, and that Plaintiff “paid for therapeutic help and received terror.” (Complaint pp. 2-3)

The Complaint’s allegations, taken as true, describe conduct beyond mere insults, indignities, or petty oppressions. The combination of professional misconduct, breach of trust, sabotage of legal proceedings affecting custody and liberty interests, and deliberate infliction of emotional harm while Plaintiff was vulnerable satisfy the pleading requirements. Whether the combined conduct actually constitutes extreme and outrageous behavior and whether Plaintiff can prove severe emotional distress specifically caused by Defendant’s actions are disputes of fact that cannot be resolved at the pleading stage in the context of this Demurrer.

Therefore, Defendant’s Demurrer to the Third Cause of Action for Intentional Infliction of Emotional Distress is OVERRULED.1

1 Lest there be any doubt or confusion, the Court underscores that in making these

rulings at the pleading stage in the context of this Demurrer, the Court is not making any findings of fact that any of the allegations in Plaintiff’s Complaint are true. Defendant is free to challenge any and all of them during the summary judgment stage and at trial. And Plaintiff is forbidden to cite any part of this Order as evidence that any of the allegations of his Complaint are true.

V. Conclusion & Order

For the reasons explained above:

• Defendant’s Demurrer to the First Cause of Action is SUSTAINED WITH LEAVE TO AMEND within 10 days of today.

• Defendant’s Demurrer to the Second and Third Causes of Action is OVERRULED.

SO ORDERED.

Date: August 26, 2026

Vincent I. Parrett Judge of the Superior Court of California, County of Santa Clara

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