Aly v. McCray, et al.

Association to give notice.

Dept. F43 Hearing Date: 09-02-26 Case # 26CHCV01801, Aly v. McCray, et al. Trial Date: None set. DEMURRERS AND MOTIONS TO STRIKE MOVING PARTIES: Defendant Law Offices of Ivey McCray and Ivey McCray, in pro per RESPONDING PARTY: Plaintiff Howayda Ann Aly RELIEF REQUESTED Order sustaining demurrer to the Complaint and striking the causes of action and personal attacks, legal conclusions, and redundant statements from the Complaint. RULING: Demurrers to the First Cause of Action are sustained with leave to amend.

Demurrers to the Second Cause of Action are overruled. Motions to Strike are denied. SUMMARY OF ACTION Plaintiff Howayda Ann Aly (Plaintiff) filed this legal malpractice action against defendants Ivey McCray and the Law Offices of Ivey McCray, asserting breach of contract and negligence. McCray is self-represented but represents her Law Office. On July 31, 2026, each defendant filed separate but identical demurrers and motions to strike various allegations from the Complaint. Plaintiff filed an opposition on August 17, 2026.

No replies were filed. Because Defendants' demurrers and motions to strike are identical, the court addresses all moving papers in a single order. MEET AND CONFER Demurrers and motions to strike must be accompanied by a "meet and confer" declaration stating that the parties met and conferred "in person, by telephone, or by video conference" and stating that (1) the parties failed to reach an agreement resolving the issues raised in the demurrer and motion to strike; or (2) that the party who filed the pleading subject to the demurrer or motion to strike failed to respond to the meet and confer request or failed to meet and confer in good faith. (Code Civ.

Proc., Sec.Sec. 430.41, subd. (a)(3), 435.5, subd. (a)(3).) In Department F43, meet and confer means in person or via phone, not by letter or email. (Department F43 Courtroom Information, p. 2.) Defendants filed declarations attesting that a telephonic meet and confer occurred five days before the responsive pleading

deadline. (7/31/2026 Declarations of Demurring Party P. 2.) Plaintiff does not oppose the declarations. Thus, the "meet and confer" requirement is met. THE COMPLAINT'S ALLEGATIONS On June 27, 2023, Plaintiff retained Defendant to represent her in a contested family law dissolution action, In re Marriage of Aly v. Mohamed, Los Angeles Superior Court, Case No. 21CHFL01673. (Compl. P. 7.) The parties entered into a written attorney fee agreement that same day. (Id. P. 8, Exh. 1.) The fee agreement required defendant McCray to provide competent legal representation, to exercise reasonable skill and diligence, comply with applicable court rules and orders, and to bill only for reasonable and necessary legal expenses. (Id.

P. 9.) Plaintiff claims she has paid Defendant substantial attorneys' fees and that Defendant currently demands further payment. (Ibid.) However, defendant McCray breached the contract and her independent professional duties by providing incompetent legal representation by engaging in a pattern of excessive, unnecessary, and unproductive litigation. (Compl. P.P. 10-20, 26.) McCray repeatedly filed motions, requests, and applications that were denied, withdrawn, or found to be procedurally improper for failing to include required supporting documents and forms or violating court rules and deadlines; used a litigation strategy that increased conflict, delayed resolution, and frustrated settlement opportunities; increased costs and the duration of the case without advancing Plaintiff's objectives; failed to timely exchange trial exhibits and attempted to introduce exhibits in violation of court rules and orders; failed to meaningfully respond to court inquiries; filed repetitive motions; and relitigated issues that had already been decided by the court.

Defendant's conduct required repeated court intervention and caused unnecessary consumption of court time. (Compl. P. 18.) The family court imposed a $45,000 sanction against Plaintiff pursuant to Family Code section 271, due to conduct that frustrated settlement, increased costs, and violated court rules and orders. (Id. P.P. 21-23.) Plaintiff now seeks damages "not less than $200,000.00, including but not limited to, costs and payments made to cover the multiple months of frivolous litigation, costs and payments of retaining an attorney to settle the case, costs of an attorneys fee judgment against him and loss in value of a settlement due to the mishandling of the case." (Compl.

P.P. 27, 32.) ANALYSIS A. Demurrer A party may respond to a pleading against it by demurrer based on one or more of eight enumerated grounds, including that "the pleading does not state facts sufficient to constitute a cause of action" and is uncertain, meaning "ambiguous and unintelligible." (Code Civ. Proc., Sec. 430.10, subds. (e), (f).) The grounds for demurring must be

apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., Sec. 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading "by raising questions of law." (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) "In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties." (Code Civ.

Proc., Sec. 452.) The court "treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law[.]" (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

1. First Cause of Action: Breach of Contract Defendants contend the breach of contract claim fails because Plaintiff pleads no recoverable damages, does not indicate what conditions Defendant was required to perform under the contract, and does not state Plaintiff complied with her obligations under the contract. Moreover, Defendant asserts the cause of action is no more than personal criticism. (Demurrer at pp. 4:26-5:15.) In opposition, Plaintiff contends the Complaint pleads a written attorney-fee agreement, Defendants' agreed upon obligations under the agreement, Defendant's breach of the agreement through excessive, unnecessary, and improper conduct in a separate family law matter, and resulting damages of Family Code section 271 sanctions, litigation expenses, fees incurred to resolve the family law matter, attorney-fee judgment exposure, and loss of settlement. (Opp. at p. 6:4-17.)

To plead breach of contract, a complaint must allege facts showing (1) the existence of a contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) resulting damages to plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821; Aton Center, Inc. v. United Healthcare Ins. Co. (2023) 93 Cal.App.5th 1214, 1230.) Plaintiff adequately alleges the existence of a written contract the parties entered on June 27, 2023. (Compl. P. 25, Exh. 1 [defendant Ivey McCray as the attorney and owner of defendant Law Office].)

Pursuant to the contract, defendant Ivey McCray agreed to "provide those legal services reasonably required to represent" Plaintiff is the Family Law matter " Aly v. Mohamed, Los Angeles County Family Court Case No. 21CHFL01673" through trial and post-trial but not an appeal. (Compl., Exh. 1 at p. 1.) Moreover, defendant McCray agreed to take reasonable steps to keep Plaintiff informed of progress and to respond to Plaintiff's inquiries. (Compl., Exh. 1 at p. 1.) Plaintiff's obligations included being truthful with defendant McCray and not withholding information; cooperating, to keep defendant

McCray informed of any information or developments which may come to Plaintiff's attention; abiding by the contract, paying defendant McCray's bills on time when requested; and keeping defendant McCray advised of Plaintiff's address, telephone number and whereabouts. (Compl., Exh. 1 at pp. 1-2.) Plaintiff also agreed to assist defendant McCray "by timely providing necessary information and documents[,] appear[ing] at all legal proceedings when Attorney deems it necessary, and [cooperating] fully with Attorney in all matters related to the preparation and presentation" of Plaintiff's claims. (Compl., Exh. 1 at p. 2.)

Finally, Plaintiff was obligated to pay defendant McCray the reasonable value of the services she performed within a specific period and a $500 deposit. (Compl., Exh. 1 at pp. 2-4.) Plaintiff alleges she paid Defendant substantial attorneys' fees during the representation but does not allege whether she performed all obligations under the agreement or was excused from performing her obligations. (Compl. P. 9.) Plaintiff adequately alleges Defendants failed to perform their obligations by engaging in a pattern of excessive, unnecessary, and unproductive litigation in the Family Law matter. (Compl.

P.P. 10-20, 26.) Defendant McCray filed motions and applications that were denied, withdrawn, procedurally defective, or in violation of court rules; McCray increased conflict, delayed resolution of the family law matter, frustrated settlement opportunities, and billed Plaintiff for litigation activity that was neither necessary nor successful. Furthermore, defendant McCray went to trial inadequately prepared, failed to properly handle exhibits and court procedures, was unable to respond competently to the court's legal inquiries, and continued filing improper post-trial motions and submission that were struck by the court.

This resulted in court intervention and the imposition of $45,000 in sanctions under Family Code section 271. (Id. P.P. 21-22.) "The court expressly attributed the need for sanctions to the manner in which the case was litigated by Plaintiff's counsel." (Id. P. 23.) Plaintiff's allegations do demonstrate defendantse breached the agreement and caused Plaintiff to suffer damages of costs and payments made to cover months of frivolous litigation, costs to retain a separate attorney to settle the case, and costs of an attorneys fee judgment against him and loss in value of a settlement due to the mishandling of the case. (Compl.

P.P. 26-27.) However, Plaintiff's failure to adequately plead performance of her obligations or excuse from performance renders the breach of contract cause of action incomplete. The court also notes that Plaintiff confusingly alleges the cause of action against a single unnamed "Defendant" and "Does 1 through 10." (Compl. at p. 5:4.) Therefore, the court sustains the demurrer to the First Cause of Action with leave to amend.

2. Second Cause of Action: Negligence Defendants contend the negligence claim fails because it relies too heavily on the wording of the Section 271 sanction order. (Demurrer at p. 5:17-28.) According to Defendant, the holding of an order from another case does not constitute necessary facts to support each element of negligence in this case, and Plaintiff pleads no facts showing

Defendant directly or legally caused Plaintiff's harm. In opposition, Plaintiff contends the Complaint adequately pleads that defendant McCray, a licensed attorney, owed Plaintiff a specific duty; that McCray breached the duty by failing to exercise the required skills, to recognize statute-of-limitations and consideration issues, to diligently pursue the matter, and engaged in unnecessary and improper litigation conduct; and the breach caused Plaintiff damages - "Plaintiff would have obtained a more favorable result but for Defendants' negligence and that Plaintiff suffered damages of not less than $200,000, including litigation costs, fees to retain counsel to settle the case, attorney-fee judgment exposure, and loss in settlement value." (Opp. at p. 7:14-26.)

A legal malpractice claim based on negligence requires the Plaintiff to plead the following: (1) the attorney owed a duty to use such skill, prudence, and diligence as members of the legal profession commonly possess and exercise; (2) the attorney breached their professional duty; (3) the attorney's breach proximately caused the plaintiff's resulting injury; and (4) the plaintiff suffered an actual loss or damage. (Engel v. Pech (2023) 95 Cal.App.5th 1227, 1241.) "Damages in a malpractice lawsuit include (1) the amount the client paid the attorney; and (2) the difference between what the client would have obtained had the lawyer's representation been competent and what the client actually obtained." (Engel, supra, 95 Cal.App.5th at p. 1241, citations omitted.) "The causation and damages elements of malpractice require the plaintiff to establish that 'but for the defendant's negligent acts or omissions, the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred.'" (Kaushansky v.

Stonecroft Att'ys, APC (2025) 109 Cal.App.5th 788, 800 [quoting Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 357]; Wise v. DLA Piper LLP (US) (2013) 220 Cal.App.4th 1180, 1191 ["[C]ollectibility of the hypothetical underlying judgment . . . is a component of the plaintiff's current case relating to damages, as caused by the current negligent attorney defendant."].) Plaintiff alleges Defendant owed her "a duty to use such skill, prudence, and diligence as members of her profession commonly possess and exercise." (Compl.

P. 29.) This duty arose due to the attorney-client relationship between defendant McCray and Plaintiff in the family law case. According to Plaintiff, Defendant breached this "duty by her failure to exercise the requisite skill and care in representing Plaintiff. Defendant should have known, had she exercised the normal skill as other attorneys, that the original complaint was barred by the statute of limitations as the subsequent agreements were not supported by adequate consideration. Defendant further breached her duty of care by failing to diligently pursue Plaintiff's matter leading to further costs and delays." (Compl.

P. 30.) This breach is demonstrated through defendant McCray's excessive, unnecessary, and improper filings; failing to comply with deadlines and procedural requirements; litigation strategy that increased conflict, delayed resolution, and frustrated opportunities at settlement,

directly affecting the final settlement amount; failing to timely exchange trial exhibits, submitting incomplete or improper exhibit lists, and attempting to introduce exhibits in violation of court rules and orders; inability to meaningfully respond to the Family Law court's inquiries concerning basic legal and procedural issues; and attempting to relitigate issue already decided by the court. (Id. P.P. 12-20.) Defendant McCray's conduct required repeated court intervention and caused unnecessary consumption of court time which resulted in the court striking multiple post-trial submissions and the court imposing $45,000 in monetary sanctions against Plaintiff pursuant to Family Code section 271. (Compl.

P. 18, 20-21.) Family Code section 271 authorizes a family law court to award attorney's fees and costs as a sanction against any party or attorney whose conduct frustrates the state's policy of promoting settlement and reducing litigation costs through cooperation. (Fam. Code, Sec. 271, subd. (a).) According to Plaintiff, she would have obtained a more favorable result (settlement) in the family law matter if defendant McCray had provided competent representation and not breached her duty. Plaintiff seeks the following damages for the harm caused by defendant McCray's breach of duty: not less than $200,000.00, including but not limited to, costs and payments made to cover the multiple years of frivolous litigation, costs and payments of retaining an attorney to settle the case, costs of an attorney's fee judgment against him, and loss in value of a settlement due to the mishandling of the case. (Compl.

P. 32.) Thus, the court finds that Plaintiff adequately alleges negligence. Therefore, the court overrules the demurrer to the Second Cause of Action. As with the First Cause of Action, the caption under the Second Cause of Action identifies a single unnamed "Defendant." (Compl. at p. 5:19.) The court infers from the use of the term "her" in the subsequent allegations that the singular "Defendant" is defendant Ivey McCray. Because Plaintiff also seeks to hold defendant Law Office liable for negligence, Plaintiff must clarify this is in an amended complaint.

B. Motion to Strike "Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof." (Code Civ. Proc., Sec. 435.) A court may, upon motion or at any time, strike from the complaint "any irrelevant, false, or improper matter" or "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., Sec.Sec. 436, subds. (a)-(b), 187; Greshko v.

County of Los Angeles (1987) 194 Cal.App.3d 822, 830 [noting the court's inherent power to limit the focus of the proceedings to the issues framed by the remaining viable pleadings].) An "irrelevant matter" is an allegation that "is not essential to the statement of a claim or defense," "is neither pertinent to nor supported by an otherwise sufficient claim or defense," or "a demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint." (Code Civ. Proc., Sec. 431.10, subds. (b)-(c).)

The court must read the factual allegations in the complaint as a whole and assume their truth. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) Defendants move to strike the following from the Complaint: · "an individual residing in the County of Los Angeles, California." (Complaint 1:24) · "with its principal place of business within County of Los Angeles, State of California." (Complaint 2:1-2) · "agreed to provide competent legal representation, exercise reasonable skill and diligence, comply with applicable court rules and orders, and bill only for reasonable legal services." (Complaint 3:4-6) · "engaged in a pattern of excessive, unnecessary and unproductive litigation". (Complaint 3:10-11; 24-25) · "found to be procedurally improper," (Compl. 3:15) · "Improper motions to reconsider"(Complaint 3:17) · "increased conflict, delayed resolution, and frustrated opportunities for settlement, thereby increasing the cost and duration of the case without advancing Plaintiff's objectives. "Unnecessary litigation despite its lack of success or necessity." (Complaint 3: 20-23) · Defendant engage in a pattern of excessive, unnecessary, and unproductive litigation in the Family Law Action." (Complaint 3:24-25) · Page 3, line 26 - 27 " Defendant's litigation strategy increased conflict, delayed resolution, and frustrated opportunities for settlement, thereby increasing the cost and duration of the case without advancing Plaintiff's objectives.

Defendant billed Plaintiff for this excessive." (Complaint 3:26-27) · "unnecessary litigation despite its lack of success or necessity....while inadequately prepared." (Complaint 4:1-2) · "Defendant failed to timely exchange trial exhibits, submitted incomplete or improper exhibit lists, and attempted to introduce exhibits in violation of court rules and orders...Defendant repeatedly failed to follow court instructions, improperly interrupted witnesses, and demonstrated a lack of familiarity with governing law and

procedure." (Complaint 4:3-6) · "Defendant was unable to meaningfully respond to the court's inquires regarding basic legal and procedural issues relevant to the case." (Complaint 4:7-8) · "Defendant's conduct required repeated court interventon and caused unnecessary consumption of court time." (Complaint 4:9-10) · "After trial concluded, Defendant continued to engage in improper litigation conduct, including filing unauthorized, untimely, or repetitive motions and declarations." (Complaint 4:11-12) · "Defendant attempted to relitigate issues already decided by the court and filed documents in violation of established deadlines and procedural requirements....due to Defendant's failure to comply with court rules and orders." (Complaint 4:13-14) · "..excessive, unnecessary, and improper litigation conducted.." (Complaint 4:16) · "...due to litigation conduct that frustrated settlement, increased costs, and violated court rules and orders." (Complaint 4:19-20) · "The court expressly attributed the need for sanctions to the manner n which the case was litigated by Plaintiff's counsel.

The Court further found that, based on the totality of the circumstances, it lacked confidence in Plaintiff's counsel's ability to properly implement court orders." (Complaint 4:21-24) · Complaint Page 5 Lines 5-6 · Complaint Page 5 Lines 20-21 · "For damages ...., but not less than $200,000,00" (Complaint 6:14-16) Defendants contend the above allegations are irrelevant, false, and improper because they are "mere personal attacks, legal conclusions, redundant statements having no evidentiary value. (Mot. to Strike at p. 6:14-16.)

In opposition, Plaintiff contends Defendants seek to strike allegations which are relevant to establishing material facts - venue, the parties, breach, duty, causation, and damages - and are therefore, not irrelevant, false, or improper. (Opp. at p. 9:13-19.) Plaintiff also asserts the combined demurrer and motion to strike is improper because the notice of motion fails to identify each specific relief sought.

(Opp. at pp. 9:24-10:9.) The court denies the motion to strike as procedurally deficient and lacking sufficient legal support. First, the motions to strike are procedurally improper because Defendants' notices of motion does not comply with California Rules of Court, rules 3.1110(a) and 3.1322(a). "A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order." (Cal. Rules of Court, rule 3.1110(a).) "A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense.

Specifications in a notice must be numbered consecutively." (Cal. Rules of Court, rule 3.1322(a).) "The purpose of the notice requirements is to cause the moving party to sufficiently define the issues for the information and attention of the adverse party and the court." (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125, citation omitted.) Here, the notices of motion mention Defendants' intent to strike portions of the complaint or causes of action. But the notices do not quote the portions sought to be stricken or cite page, paragraph, or line numbers.

Thus, the notices violate Rule 3.1322. Although the notices of motion identify both the demurrers and the motions to strike pursuant to California Rule of Court, rule 3.1112(c), Defendants improperly combine both into the same document without identifying the legal grounds for the motion to strike in the notice of motion. (Cal. Rules of Court, rule 3.1110(a) ["A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order."].)

Despite the inadequate notice of motion and combining of the motions and demurrers, Plaintiff filed a timely opposition addressing the merits of Defendants' motions to strike, including several of the paragraphs targeted by Defendants. "[A]ppearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion." (Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930.) Thus, the court still considers the merits of the motions.

But the motions to strike are substantively improper because Defendants fail to provide a thorough analysis as to each allegation it seeks to strike. Absent a good faith basis for modifying or extending an existing law, litigants are generally prohibited from asserting a position in litigation without authority. (See, e.g., In re Estate of Randall (1924) 194 Cal. 725, 728-729 ["Contentions supported neither by argument nor by citation of authority are deemed to be without foundation, and to have been abandoned."]; see also Lafferty v.

Wells Fargo Bank (2013) 213 Cal. App. 4th 545, 571-572 ["When a point is asserted without argument and authority for the proposition, 'it is deemed to be without foundation and requires no discussion by the reviewing court.'"]; Atchley

v. City of Fresno (1984) 151 Cal. App. 3d 635, 647 ["Where a point is merely asserted by appellant's counsel without any argument of or authority for the proposition, it is deemed to be without foundation and requires no discussion by the reviewing court."].) The extent of Defendants' arguments is reference to Code of Civil Procedure sections 435 and 436, Oiye v. Fox (2021) 211 Cal.App.4th 1036, and the contention that the listed allegations are mere personal attacks, legal conclusions, and redundant statements having no evidentiary value.

Defendants provide no analysis as to each allegation, explaining how or why the allegation is improper, false, or irrelevant. Thus, the court finds Defendants' motions are inadequate and fail to support their contention. Therefore, the court denies Defendants' motions to strike. CONCLUSION and ORDER Demurrers to the First Cause of Action are sustained with leave to amend. Demurrers to the Second Cause of Action are overruled. Motions to Strike are denied. Plaintiff may file and serve an amended complaint within 30 days of the issuing of this order.

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