Esparza vs. Holland

As this motion is unopposed, it is undisputed that the FAA applies here. Further, it is undisputed that Plaintiff, through her daughter, Arlene Rebuyon, acting as Plaintiff’s attorney-in-fact, agreed to arbitrate various claims arising out of her stay with Defendant, including “all disputes arising from or related to this Agreement or to your rights, obligations, care, or services at the Community shall be resolved by submission to neutral, binding arbitration...and it includes, without limitation, personal injury and wrongful death claims.” (Philson Decl. at ¶¶ 5, 6, Ex.

A, p. 25; Ex. B, power of attorney.) It is further undisputed that Plaintiff’s claims against Defendant falls within the Arbitration Agreement. In fact, Defendant represents that the parties have agreed to arbitration before Robert N. Dobbins, Esq. with Judicate West and have paid the required arbitration fees. (See, Ntc. Of Non-Opp, pp. 2:4-5, ROA 36.)

As Plaintiff does not oppose the instant motion, Plaintiff does not raise any issues related to the defense to enforcement.

In light of the above, Defendant’s Motion to Compel Arbitration is GRANTED. This action is STAYED pending resolution of the arbitration. (Code Civ. Proc. § 1281.4; 9 U.S.C. §§ 3 and 4.)

The Court hereby sets a post-arbitration status conference for March 26, 2027 in this department.

Moving Party to give notice.

54 Esparza vs.

1. Demurrer to Complaint Holland 2. Motion to Strike Complaint

25-01510068 Defendants Derek Holland and Holland & Holland Law Offices, Inc.’s demurer is OVERRULED as to the second cause of action for breach of fiduciary duty and SUSTAINED as to the third cause of action for breach of contract asserted in the Complaint. Should Plaintiff desire to file an amended complaint that addresses the issues in this ruling, Plaintiff must file and serve it within 20 days of service of notice of ruling.

In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.)

Second Cause of Action for Breach of Fiduciary Duty

The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, breach of fiduciary duty, and damages. [Citation.]” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820–821.)

In or around late February 2023, Plaintiff retained Defendants to represent him and litigate his personal injury claims arising from an incident in which a heavy display case fell on Plaintiff when Plaintiff was a customer in a retail store (“Underlying Matter”). (Compl. ¶ 7.) By virtue of their attorney-client relationship, a fiduciary relationship existed between Plaintiff and Defendants. (Id. at ¶ 21.) The second cause of action for breach of fiduciary duty alleges Defendants breached their fiduciary duties to Plaintiff by failing to competently handle the Underlying Matter; violating various Rules of Professional Conduct; failing to represent Plaintiff loyally; failing to keep Plaintiff fully informed about all aspects of the Underlying Matter; failing to properly communicate with Plaintiff; failing to dedicate a reasonable amount of time and attention to the Underlying Matter; and failing to protect Plaintiff’s rights in the Underlying Matter. (Id. at ¶ 22.)

Plaintiff incurred damages and losses as a result of Defendants’ breach. (Id. at ¶ 23.)

These allegations are sufficient to state a cause of action distinct for legal malpractice based on Defendants’ breach of their duty to adhere to the Rules of Professional Conduct, their duty of loyalty, and their duty to keep Plaintiff reasonably informed about significant developments in the Underlying Matter. (See Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086 [Rules of Professional Conduct define the fiduciary duty an attorney owes their client]; De Meo v. Cooley LLP (2025) 115 Cal.App.5th 17, 29 [“attorney has a duty of loyalty to his or her clients”]; Bus. & Prof.

Code, § 6068, subd. (m) [an attorney has a duty “ ‘to keep clients reasonably informed of significant developments in matters with regard to which the attorney has agreed to provide legal services’ ”]; Chambers v. Kay (2002) 29 Cal.4th 142, 157 [the Rules of Professional Responsibility are intended to regulate professional conduct of members of the State Bar.].) The demurrer is overruled as to the second cause of action.

Third Cause of Action for Breach of Contract

“[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff. [Citation.]” (Oasis, supra, 51 Cal.4th at p. 821.) “A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. [Citation.] In order to plead a contract by its legal effect, plaintiff must ‘allege the

substance of its relevant terms.’ [Citation.]” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)

The third cause of action for breach of contract alleges Plaintiff and Defendants entered into a written agreement in late February 2023. (Compl. ¶ 25.) In exchange for valuable consideration, Defendants agreed to perform legal services for Plaintiff in the Underlying Matter. (Id.) Implied in the agreement is Defendants’ performance of the legal services with reasonable care and in a manner consistent with the standard practice ordinarily followed by other attorneys in good standing. (Id. at ¶ 26.)

Plaintiff performed all of his obligations under the agreement, or performance was excused. (Id. at ¶ 27.) The Complaint alleges Defendants failed to perform under the agreement by failing to exercise the requisite skill and care of reasonable attorneys while representing Plaintiff. (Id. at ¶ 28.) As a result of Defendants’ breach of the representation agreement, Plaintiff incurred damages and losses. (Id. at ¶ 29.)

The Complaint does not attach the representation agreement or quote the representation agreement verbatim. The allegation that “Defendants agreed to perform legal services for Plaintiff in the Underlying Matter” is not sufficient to allege the agreement’s relevant substantive terms. The demurrer is SUSTAINED as to the third cause of action with leave to amend.

Uncertainty

Demurrers for uncertainty are generally disfavored (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822) because “under [California’s] liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.” (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) The court will only sustain a demurrer for uncertainty if it is so poorly drafted that defendants cannot reasonably respond. (Khoury v. Maly’s of California Inc. (1993) 14 Cal. App. 4th 612, 616.) A demurrer for uncertainty must identify by line and page number, the language that creates the uncertainty. (Fenton v. Groveland Community Services Dist. (1982) 135 Cal. App. 3d 797, 809.)

Here, Complaint is not “so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal. App. 4th 1125, 1135.) Any “ambiguities can be clarified under modern discovery procedures.” (Khoury, supra, 14 Cal. App. 4th at p. 616.) The demurrer based on uncertainty is OVERRULED.

Sanctions

Plaintiff requests an award of attorney’s fees incurred in opposing the demurrer pursuant to Code of Civil Procedure section 128.5. Plaintiff’s request is DENIED. As an initial matter, a motion for sanctions under section 128.5 “shall be made separate from other motions or requests ....” (Code Civ. Proc., § 128.5, subd. (f)(1)(A).) Additionally, a 21-day safe harbor provision applies. (Id. at subd. (f)(1)(B).)

Defendants to give notice.

___________________________________________________________

Defendants Derek Holland and Holland & Holland Law Offices, Inc. move to strike allegations and prayers for general damages from the Complaint. The motion to strike is DENIED as to identified items 1-20 (Notice of Motion at 2:4-5 [ROA 22].). The motion is GRANTED as to item 21, the prayer for general damages in connection with the first cause of action for professional negligence/legal malpractice. Should Plaintiff desire to file an amended complaint that addresses the issues in this ruling, Plaintiff must file and serve it within 20 days of service of notice of ruling.

A court may strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court. (Code Civ. Proc., § 436.)

Descriptive Language

Defendants seek to strike the allegations identified in items 1-20 on the grounds that they are irrelevant and conclusory. Items 1-20 consist of terms such as “competently”, “properly,” and “diligently”, “negligence”, “breached” and “loyally”. (Notice of Motion at 2:4-3:1.)

The directive to construe pleadings liberally and the courts’ reluctance to use motions to strike a “a procedural ‘line item veto’ for the civil defendant” weighs in favor of a denial with regard to items 1-20. (See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683 [motion to strike may challenge portions of causes of action or where a complaint fails to state particular facts, and its use “should be cautious and sparing” so as not to create a “procedural ‘line item veto’ for the civil defendant”].)

The motion to strike is denied as to items 1-20. Defendants have not demonstrated such allegations are irrelevant, false, or improper. Rather, the descriptive language is supported by factual allegations and is not clearly irrelevant or unduly prejudicial.

General Damages

Plaintiff seeks “general and special compensatory and consequential damages in an amount to be proven at trial.” (Compl., Prayer for Relief at 7:12-19.) Defendants contend Plaintiff’s prayer for general damages is not drawn in conformity with California law because the measure of damages in this legal malpractice action is the “difference between what was recovered and what would have been recovered but for the attorney’s wrongful act or omission.” (Mosier v. S. California Physicians Ins. Exch. (1998) 63 Cal.App.4th 1022, 1049–1050.)

California courts have considered the issue of damages for emotional distress due to attorney malpractice and established the rule that “emotional distress damages are not generally recoverable in cases of attorney malpractice related to litigation. [Citation.]” (Camenisch v. Superior Court (1996) 44 Cal.App.4th 1689, 1697.) “In lawyer malpractice cases alleging negligence in an earlier civil case involving a property interest, recovery of damages for emotional distress is precluded absent intentional or affirmative wrongdoing by the defendant.” (Holliday v. Jones (1989) 215 Cal.App.3d 102, 114.) Here, the Complaint does not allege any intentional malfeasance on the part of the Defendants. The motion to strike “general” from the prayer for relief for the first cause of action for professional negligence/legal malpractice (Compl., Prayer for Relief at 7:12-13) is GRANTED.

The Complaint states facts sufficient to constitute a cause of action for breach of fiduciary duty. “Recovery for damages based upon breach of fiduciary duty is controlled by Civil Code section 3333, the traditional tort recovery.” (Michelson v. Hamada (1994) 29 Cal.App.4th 1566, 1582.) Civil Code section 3333 provides: “For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.”

The damages recoverable under section 3333 for breach of fiduciary duty include emotional distress damages. (Stanley, supra, 35 Cal.App.4th at p. 1097 [emotional distress damages are recoverable if directly caused by the attorney’s conduct in breach of fiduciary duties].) The motion to strike “For general” from the prayer for relief for the second cause of action for breach of fiduciary duty is DENIED.

Since the Court sustained the demurrer as to the third cause of action for breach of contract, the motion to strike this cause of action is DENIED.

Defendants to give notice.