PHILIP P. DELUCA v. ROBERT BISHOP, et al.

on the pleadings as to the entire FAC is GRANTED. In light of California's liberal policy favoring amendment of pleadings and considering that this is only Defendants' first substantive challenge to the pleadings, with Court will permit leave to amend with respect to each cause of action to the extent that Plaintiffs are able to state a claim.

II. REQUESTS FOR JUDICIAL NOTICE

Defendants request judicial notice of the following documents: (1) California Assembly Journal, 2023-2024 Rec. No. 28 (RJN, Exh. 1); (2) California Legislative Counsel's Digest (dated 12/2/2025) (RJN, Exh. 2); (3) California Department of Consumer Affairs List of Manufacturers That Opted In To New Lemon Law Procedures (RJN, Exh. 3); and (4) S enate Judiciary Analysis of AB 1755 (dated 8/26/2024) (RJN, Exh. 4).

The Court takes judicial notice of Exhibit 3 pursuant to Evidence Code Sec. 452, subds. (c) and (h). The Court declines to take judicial notice of Exhibits 1, 2, and 4, finding them unnecessary for the Court to reach a legal conclusion on the instant motion.

Defendants FCA US LLC and Pedder Chrysler Dodge Ram Jeep of Poway to serve notice of ruling. This tentative ruling ("TR") shall be the order of the Court unless changed at the hearing and shall by this reference be incorporated into the Minute Order. TR emailed to counsel and posted to court website on 9/3/26 at 1:15 p.

[1] First, Plaintiffs' first and second causes of action are brought under Civ. Code Sec.Sec. 1793.2, subds. (d) and (b), which are expressly covered by the language of section 871.20, subd. (a).

Second, Plaintiffs' third cause of action is brought under Civ. Code Sec. 1793.2, subd. (a)(3) and seeks to enforce FCA's express warranties under this section via civil penalties pursuant to Civ. Code Sec. 1794, subd. (c). (FAC, P. 68.) Claims for the enforcement of warranties under Civ. Code Sec. 1794, subd. (c) explicitly fall within the covered claims defined by section 871.20, subd. (a).

Third, Plaintiffs' fourth cause of action for Breach of the Implied Warranty of Merchantability is brought under Civ. Code Sec.Sec. 1791.1, 1794, and 1795.5. (FAC, P.P. 70-71, 73.) Again, claims brought under Civ. Code Sec. 1794 explicitly fall within the claims covered by section 871.20, subd. (a).

9:15 a.m, Friday, September 4, 2026 PHILIP P. DELUCA v. ROBERT BISHOP, et al. [26STCV09075] DEFENDANTS ROBERT BISHOP, JEROME A. CLAY, ESQ., AND LAW OFFICE OF JEROME A. CLAY'S DEMURRER AND MOTION TO STRIKE AS TO THE FIRST AMENDED COMPLAINT PLAINTIFF/CROSS-DEFENDANT PHILIP P. DELUCA'S DEMURRER AND MOTION TO STRIKE AS TO THE FIRST AMENDED CROSS-COMPLAINT

MEET AND CONFER: DEFECTIVE

For both motions, the parties failed to meet and confer telephonically, in-person, or by video conference in compliance with Code Civ. Proc. Sec. 4301.41. (Clay Decl., P.P. 5-6; DeLuca Decl., P.P. 2-6.)

BACKGROUND: FAC alleges attorney-client fee dispute; FAXC alleges legal malpractice, etc.

TIMELINE:

12/13/2019: Defendant Robert Bishop III ("Bishop") retains Plaintiff Philip P. DeLuca, Esq. DBA Law Offices of Philip P. DeLuca ("DeLuca") for legal representation in the underlying personal injury matter of Bishop v. Penatover, Case No. 20STCV47832 (the "Underlying Action"). Bishop and DeLuca execute a written contingency fee agreement (hereinafter sometimes referred to as the "Agreement") providing DeLuca with a contractual lien against any recovery in the Underlying Action.

4-5/2025: DeLuca demands that Bishop advance $30,000.00 in litigation costs to DeLuca. Bishop refuses.

7/28/2025: DeLuca voluntarily withdraws from representing Bishop in the Underlying Action. Thereafter, Bishop retains the legal services of Defendants Jerome A. Clay, Esq. and the Law Office of Jerome A. Clay (collectively, "Clay" or the "Clay Defendants").

7/29/2025: DeLuca serves a written Notice of Attorney's Lien upon Bishop and Clay against any settlement proceeds in the Underlying Action.

11/25/2025: Clay and Bishop allegedly settle the Underlying Action. DeLuca is not notified of the settlement until he is served with a Motion to Strike and/or Expunge the Contractual Lien for Attorney Fees in the Underlying Action, filed by Clay.

3/5/2026: The Court denies the Motion to Strike/Expunge the Contractual Lien based on lack of jurisdiction.

3/20/2026: DeLuca files the Complaint in this action against Bishop and the Clay Defendants.

5/7/2026: Bishop files a Cross-Complaint against DeLuca.

7/2/2026: The Court enters a final ruling on Bishop and Clay's Special Motion to Strike the Complaint, Bishop and Clay's Demurrer to the Complaint, and DeLuca's Demurrer to the Cross-Complaint. The Anti-SLAPP Motion is granted in part and denied in part. The Demurrer to the Complaint is sustained (with leave to amend in part and without leave to amend in part). The Demurrer to the Cross-Complaint is overruled in part, sustained without leave to amend in part, and sustained with leave to amend in part.

7/13/2026: DeLuca files the operative First Amended Complaint ("FAC"), alleging causes of action for: 1. Breach of Contract (Contingency Fee Agreement) 2. Quantum Meruit 3. Declaratory Relief (Validity of Attorney Lien)

7/16/2026: Bishop files the operative First Amended Cross-Complaint ("FAXC") against DeLuca, alleging causes of action for: 1. Professional Negligence (Legal Malpractice) 2. Breach of Fiduciary Duty 3. Fraudulent Concealment 4. Declaratory Relief

8/6/2026: Bishop and Clay file this Demurrer and Motion to Strike as to the FAC, which is followed by DeLuca's Opposition (8/21/2026) and Bishop and Clay's Reply (8/27/2026). DeLuca files this Demurrer and Motion to Strike as to the FAXC, which is followed by Bishop's Opposition (8/24/2026) and DeLuca's Reply (8/27/2026).

8/24/2026: The Court denies DeLuca's Motion to Disqualify Counsel.

TENTATIVE RULING: DEFENDANTS ROBERT BISHOP, JEROME A. CLAY, ESQ., AND LAW OFFICE OF JEROME A. CLAY'S DEMURRER AS TO THE FIRST AMENDED COMPLAINT is SUSTAINED with LEAVE TO AMEND. DEFENDANTS ROBERT BISHOP, JEROME A. CLAY, ESQ., AND LAW OFFICE OF JEROME A. CLAY'S MOTION TO STRIKE is DENIED as MOOT. PLAINTIFF/CROSS-DEFENDANT PHILIP P. DELUCA'S DEMURRER AS TO THE FIRST AMENDED CROSS-COMPLAINT is OVERRULED in part and SUSTAINED with LEAVE TO AMEND in part. PLAINTIFF/CROSS-DEFENDANT PHILIP P. DELUCA'S MOTION TO STRIKE is DENIED.

I. DEMURRER TO THE FAC -- SUSTAINED with LEAVE TO AMEND

Bishop and the Clay Defendants demur to each cause of action asserted in the FAC pursuant to Code of Civil Procedure section 430.10, subd. (e). The Court on its own motion takes judicial notice of the existence of the Motion to Be Relieved as Counsel (filed 6/27/2025) and the Declaration in Support of the Motion to Be Relieved as Counsel (filed 6/26/2026) in the Underlying Action pursuant to Evidence Code section 452, subd. (d).

1 st and 2 nd Cause of Action: Breach of Contract (Fee Agreement) and Quantum Meruit -- SUSTAINED with LEAVE TO AMEND

DeLuca's causes of action for breach of contract and quantum meruit are insufficiently pled. DeLuca alleges that he entered into the underlying Contingency Fee Agreement with Bishop in December 2019 in connection with DeLuca's representation of Bishop in the Underlying Action. (FAC, P.P. 4, 15, 36, Exh. 1.)

The Agreement states, in relevant part: COSTS: The undersigned client upon request shall advance all costs of suit and expenses of representation, investigation, and preparation in this case. All costs not advanced will be deducted from the client's share of the recovery if a recovery is obtained. (Id., Exh. 1, at p. 2.)

The Agreement further states: WITHDRAWAL: Attorney may withdraw from this case at any time upon giving reasonable notice, but upon such withdrawal Attorney shall be reimbursed for any costs expended. This provision of fee waiver shall not apply to any withdrawal caused by the failure of the Client to reasonably cooperate with Attorney, in which case Attorney shall be entitled to a lien for services rendered in the same manner as if Attorney were discharged by Client, as detailed below. ATTORNEY'S LIEN: I hereby give and assign to Attorney a lien on any sum to which I become entitled to secure Attorney's compensation and any costs advanced by Attorney. I further understand that in the event of a termination of the Attorney-Client relationship by the Client, the reasonable value of Attorney's services if $250.00 per hour. (Id., Exh. 1, at p. 3.)

DeLuca alleges that Bishop breached the Agreement by refusing to pay attorney fees and reimburse litigation costs upon entering into a settlement agreement resolving the Underlying Action. (FAC, P.P. 38-39.) In or around late April or early May 2025, DeLuca demanded that Bishop pay $30,000.00 toward litigation costs (after DeLuca had already advanced $19,500.00 of his own funds), but Bishop refused. (Id., P. 39.)

DeLuca further alleges that Bishop breached the Agreement by: (1) refusing to honor DeLuca's attorney lien, (2) refusing to follow legal advice relative to mitigating Bishop's damages in the Underlying Action and lying to DeLuca about getting a surgery, (3) refusing recommended medical treatment by Bishop's physicians, (4) failing to follow legal advice to hire counsel to resolve Bishop's child support liens, (5) interfering with the prosecution of the Underlying Action, engaging in "abusive" communications with DeLuca, and telling DeLuca to make "bogus, untenable and in some instances fraudulent arguments" to the jury, and (6) demanding that DeLuca reduce his fees and costs. (Id., P.P. 40-44.)

In sum, like in the original Complaint, DeLuca is once again alleging that Bishop breached the Contingency Fee Agreement by failing to pay DeLuca after reaching a settlement in the Underlying Action (even though DeLuca had withdrawn as his counsel prior to the settlement) and by failing to follow DeLuca's legal advice during the Underlying Action, thereby making DeLuca's representation of Bishop more difficult and resulting in his permissive withdrawal as counsel. Relatedly, DeLuca's quantum meruit claim is also based on the same conduct underlying his breach of contract claim (i.e. Bishop's refusal to pay for DeLuca's services, the wrongful withholding of settlement proceeds, and Bishop's failure to cooperate with legal advice). (FAC, P.P. 49-50b.) However, DeLuca's quantum meruit claim is expressly pleaded as an alternative to his potential contract-based remedies. (Id., P. 32.)

To the extent that DeLuca is alleging that Bishop failed to follow his legal advice, this Court has already determined that these allegations do not amount to a breach of an attorney-client fee agreement as a matter of law. (FAC, P.P. 39, 41-44; see Minute Order, 7/2/2026.) "A lawyer cannot properly compel a client to take his or her advice; ... there is no duty on the part of the client to follow the lawyer's lead ..." (Purdy v. Pacific Automobile Ins. Co. (1984) 157 Cal.App.3d 59, 77-78.) Bishop was within his right to disagree with DeLuca's litigation strategy with respect to claims and trial arguments and he was not under a legal duty to accept DeLuca's advice regarding mitigation of damages, medical treatment, or child support liens. (FAC, P.P. 39, 41-44.)

Further, DeLuca's allegations that Bishop engaged in "abusive communications" with him continue to be impermissibly vague and insufficient to constitute a breach of any contractual obligation. (FAC, P.P. 21, 44.) The only specific examples of "abusive" conduct DeLuca provides is that Bishop stated, "you're not fighting for me," and he accused DeLuca of not communicating with him. (Id., at pp. 9:10-12, 19:16-18.) Without additional context, no reasonable jury could conclude that these isolated comments amount to "abusive" communications from Bishop.

Even if Bishop's conduct was disruptive to the attorney-client relationship such that DeLuca felt inclined to voluntarily withdraw as Bishop's counsel, this Court has already concluded that this type of "constructive discharge" is not actionable as a breach of contract. (Estate of Falco (1987) 188 Cal.App.3d 1004, 1012-1013 (Falco) ["A client's right and power to discharge his or her attorney at any time, with or without cause, is absolute. [...] Such a discharge does not constitute a breach of contract for the reason that it is a basic term of the contract, implied by law."].)

[1] This leaves the remaining allegations pertaining to Bishop's refusal to advance or reimburse DeLuca's litigation costs for the Underlying Action and Bishop's refusal to honor DeLuca's fee lien. (FAC, P.P. 39-40.) The Court finds that the amended allegations in the FAC still fail to establish a viable claim for either breach of contract or quantum meruit as a matter of law.

First, DeLuca has not demonstrated that his representation of Bishop in the Underlying Action was contingent on Bishop's advancement of costs, such that Bishop materially breached the Agreement before DeLuca's withdrawal. DeLuca argues that Bishop materially breached the "Costs" provision of the Agreement, interpreting the term " shall advance all costs" as a mandatory obligation on the client to immediately advance costs upon request of the attorney (i.e. before any recovery). (FAC, Exh. 1, at p. 2, italics added.)

Even so, when considered as a whole, particularly with the "Attorney's Lien" provision and the language "[a]ll costs not advanced will be deducted from the client's share of the recovery if a recovery is obtained," the "Costs" provision suggests that the parties did not intend to construe the failure to immediately advance costs to be a material breach justifying withdrawal and a claim for contract damages. (Id., at pp. 2-3; see Kroff v. Larson (1985) 167 Cal.App.3d 857, 861 [in a contingency agreement, "the obligation to reimburse the attorney for costs advanced, matures, if at all, only upon the occurrence of the agreed contingency, i.e. recovery by the client."].)

For example, the Agreement contains no terms identifying up-front costs as a "material" term of the attorney-client relationship or characterizing the non-payment of up-front costs as a "breach" of the Agreement. Nor does the Agreement impose any specific terms pertaining to the deadline for payment or make the payment of costs a condition of continued representation. Instead, the Agreement expressly contemplates the remedy for unadvanced costs: reimbursement from any future recovery. (Id., at p. 2.) Finally, even if the "Costs" provision in the Agreement could be interpreted to the contrary, such language would raise issues of ambiguity and must be construed against the drafted (here, DeLuca). (Civ. Code, Sec. 1654; see Oakland-Alameda County Coliseum Authority v. Golden State Warriors, LLC (2020) 53 Cal.App.5th 807, 823.)

Second, the Court must once again consider whether DeLuca's permissive (voluntary) withdrawal as Bishop's counsel in the Underlying Action preserved his right to recover contingent fees and costs even after his withdrawal. As summarized in its prior ruling, an attorney's ability to recover from a former client in a contingency fee case depend on "who wanted out of the relationship and why." (Rus, Miliband & Smith v. Conkle & Olesten (2003) 113 Cal.App.4th 656, 671 (Rus).) Where the client discharges the attorney, "the law is clear that the attorney may assert a quantum meruit claim against any recovery." (Ibid.)

However, where the attorney leaves voluntarily, "[a]ny claim to a subsequent recovery depends on whether the attorney had 'justifiable cause so as to permit a recovery of compensation.'" (Id., at p. 672, quoting Falco, supra, 188 Cal.App.3d at p. 1015.) "[A]s the law stands, the justifiability of the reason for withdrawal is dependent on the particular facts of the case." (Rus, supra, 113 Cal.App.4th at p. 672.) "The test, as stated in Falco, is whether the cause for withdrawal is sufficiently justifiable so as to permit recovery by the withdrawn attorney." (Id., at pp. 672-673.)

Under Falco, an attorney may typically recover compensation where "professional ethics require a withdrawal." (Id., at pp. 673-674.) In such cases, "(1) the withdrawal be truly mandatory under the professional rules and (2) the 'overwhelming and primary' motivation be the desire to adhere to the professional ethical rules, as distinct from some private ulterior motive." (Id., at p. 674.) By contrast, "[a]n attorney who voluntarily abandons a case without good cause will be denied compensation." (Falco, supra, 188 Cal.App.3d at p. 1014.)

For example, "the withdrawal for breakdown in communications [is] clearly not mandatory under State Bar rules." (Rus, supra, 113 Cal.App.4th at p. 674.) Likewise, a client's alleged failure to cooperate, "mutual animosity" in the attorney-client relationship, or a mere "personality clash" are not grounds for compensation after a permissive withdrawal. (Ibid.) A " successful withdrawal motion," standing alone, is not necessarily "justified as to merit fees" under the Falco test. (Ibid.)

In sum, while "[t]he Falco court was ... willing to entertain the possibility that some permissive withdrawals might qualify for a quantum meruit claim later," the evaluation of whether a particular permissive withdrawal qualifies is a factual inquiry into whether the attorney was not only justified in his withdrawal but was also separately justified in an award of fees and costs. (Id., at p. 675.)

Here, DeLuca's Opposition repeatedly conflates the "justified" nature of the permissive withdrawal as counsel itself with a conclusion that he was "justified" in recovering compensation for his services under the meaning of Rus and Falco. (Opp., at pp. 7, 9.) DeLuca admits that his withdrawal from representing Bishop was "permissive" in nature, as opposed to "mandatory" under the professional rules. (FAC, P.P. 6, 21, 48.) However, DeLuca alleges that he was "justified" in his withdrawal such that he should be compensated because: (1) Bishop breached the Contingency Fee Agreement by failing to pay litigation costs upon demand, (2) Bishop wanted to assert "bogus, untenable and even fraudulent allegations," which DeLuca believed were not appropriate, and (3) Bishop lied to DeLuca about his medical treatment and his injuries in connection with the vehicle accident. (FAC, P.P. 20, 52.)

DeLuca ultimately withdrew as counsel due to Bishop's "failure to cooperate, refusal to follow legal advice, abusive communications" and his "breach" of the Agreement by failing to advance litigation costs upon request. (Id., P. 21.)

Notably, according to the judicially noticed declaration filed in support of the original Motion to Be Relieved as Counsel, the grounds for DeLuca's withdrawal from the Underlying Action was the "irreparable breakdown in the attorney client relationship." (Decl. Supp. Mot., 6/26/2025, Case No. 20STCV47832.) DeLuca made no specific reference to any ethical concerns regarding his representation of Bishop in this declaration. (Ibid.)

Based on these factual allegations, the Court finds that DeLuca still fails to overcome the Falco test because his allegations are not pled with adequate factual specificity to determine whether his withdrawal was motivated by genuine ethical concerns rather than a "private ulterior motive," such as animosity in the attorney-client relationship or a dispute over strategy and costs. DeLuca sets forth no legal authority to suggest that a client's failure to advance costs creates "good cause" for withdrawal, particularity where the fee agreement expressly contemplates that costs can later be deducted from the client's recovery. As discussed above, DeLuca has not identified any particular provision of the Contingency Fee Agreement which mandated Bishop's payment of up-front costs as a condition precedent to representation.

Additionally, DeLuca has not expressly alleged in the FAC that his continued representation of Bishop would have necessarily resulted in a breach of his ethical duties. For example, although DeLuca alleges that Bishop asked DeLuca to assert "bogus" allegations and that DeLuca discovered that Bishop had lied about the causes of his injuries, it remains unclear why DeLuca was unable to communicate with his client about his ethical obligations in advancing a litigation position or whether Bishop continued such conduct after further communications about DeLuca's ethical limits. (FAC, P. 20.)

DeLuca's genuine motive for withdrawal is also further confused by his own characterization of the circumstances of his withdrawal as a "deterioration of the attorney-client relationship" and his allegations related to Bishop's failure to cooperate with settlement negotiations, his refusal to mitigate damages, his ongoing child support liens, and Bishop's "abusive" or "ludicrous" comments toward DeLuca. (Id., P.P. 20-21a; Opp., at p. 6.)

Considered in their totality, DeLuca's allegations related to the parties' deteriorating relationship continue to be more consistent with a breakdown in attorney-client communications, DeLuca's frustrations regarding Bishop's failure to cooperate, and a growing animosity regarding fees and costs rather than genuine ethical concerns. Withdrawal under these circumstances does not rise to the level of mandatory withdrawal or suggest that DeLuca was compelled to withdraw under the rules of professional ethics such that he should be entitled to recover under the Contingency Fee Agreement for Bishop's recovery after DeLuca's withdrawal. (Rus, supra, 113 Cal.App.4th at p. 674.)

Therefore, Bishop's demurrer to the first and second causes of action in the FAC is SUSTAINED with LEAVE TO AMEND. If an amended pleading is filed, DeLuca is instructed to amend the pleading to focus on only those allegations relevant to the Falco test, particularly with respect to his ethical obligations, while omitting allegations related to the business and personal nature of the conflict which DeLuca currently characterizes as mere "context" for the withdrawal but which do not support the Falco test.

3 rd Cause of Action: Declaratory Relief (Validity of Attorney Lien) -- SUSTAINED with LEAVE TO AMEND

DeLuca's claim for declaratory relief is insufficiently pled due to the same factual deficiencies identified above. In the FAC, DeLuca seeks a judicial declaration that his attorney's lien for fees and costs advanced is valid and enforceable. (FAC, P. 55.)

[2] Bishop and the Clay Defendants once again argue that DeLuca's claim for declaratory relief is merely duplicative of his contract and quantum meruit theories. (Mot., at p. 13.) On this point, the Court disagrees. To the extent that DeLuca seeks a declaration pertaining to the validity, amount, and priority of the attorney's lien, DeLuca's request for declaratory relief is not superfluous of his fee recovery theories. As the Court previously concluded, declaratory relief provides a procedural mechanism to calculate and enforce the predecessor attorney's interest in Bishop's settlement proceeds, whereas the breach of contract any quantum meruit theories seek to impose monetary liability.

Although the Court finds that DeLuca has not yet alleged adequate facts to demonstrate that he is entitled to recover fees from Bishop in connection with the Underlying Action, it is theoretically appropriate to include a declaratory relief request as a separate claim for relief in an amended pleading. (Jacobs v. Papez (2026) 119 Cal.App.5th 123, 130 ["... it would be 'appropriate' for the attorney to institute a declaratory relief action against the judgment lien holder under Code of Civil Procedure section 1060 in which the attorney might seek a declaration of his rights with respect to the judgment lien holder or with respect to the proceeds of the judgment."].)

On the other hand, in his Prayer for Relief, DeLuca is also seeking a declaration that he "justifiably withdrew from representation" of Bishop in the Underlying Action. (FAC, at p. 23:9-15.) This relief is plainly duplicative of the predicate legal and factual questions that must be resolved in evaluating DeLuca's first and second causes of action. Because the breach of contract and quantum meruit theories already provide a basis for such relief, a judicial declaration as to these findings is not appropriate. These aspects of DeLuca's Prayer for Relief should not be included in an amended pleading.

Similarly, the Court finds that the third cause of action is also permeated with immaterial and prejudicial allegations pertaining to the Clay Defendants' alleged negligence that have no relevance to the validity of DeLuca's attorney's fee lien or the potential scope of the controversy surrounding DeLuca's lien. (FAC, P. 52.) The Court has already stricken DeLuca's breach of fiduciary duty and civil conspiracy causes of action from the FAC, and the addition of these allegations pertaining to professional negligence constitute an improper attempt to circumvent the Court's prior ruling(s) narrowing the allegations in the Complaint. Such allegations must be excluded from any declaratory relief claim in an amended pleading.

In conclusion, to the extent that DeLuca is able to amend his fee recovery theories in his first and second causes of action, he will be permitted to allege an independent cause of action for declaratory relief (limited to adjudicating the validity, amount, and priority of the attorney's lien) in any amended pleading. Therefore, Bishop and the Clay Defendants' demurrer to DeLuca's third cause of action in the FAC is SUSTAINED with LEAVE TO AMEND.

II. MOTION TO STRIKE AS TO THE FAC -- DENIED as MOOT

Bishop and the Clay Defendants move to strike several allegations from the FAC which are described within the following categories: (a) a ttorney-client communications and confidential client information (pp. 8-9), (b) confidential medical information (pp. 9-10), (c) irrelevant fiduciary duty allegations (p. 10), (d) allegations that are improper and irrelevant to DeLuca's quantum meruit claim (pp. 10-11), (e) personal attacks on Bishop and Clay (pp. 11-12), and (g) portions of the Prayer for Relief.

Based on the above ruling sustaining the demurrer to all three causes of action in the FAC, the Court finds that the motion to strike is effectively rendered MOOT. However, the Court makes the following comments with respect to each category:

a. Bishop and the Clay Defendants fail to make a narrowly tailored showing as to the privileged nature of each communication identified in the FAC. To an extent, some allegations pertaining to attorney-client communications may provide relevant factual context for DeLuca's contract and quantum meruit theories, particularly with respect to any allegations identifying DeLuca's ethical obligations. Irrelevant allegations will, of course, be inadmissible at trial, but for pleading purposes, Defendants are seeking an overly granular approach without a comparable showing of prejudice.

b. See category (a).

c. DeLuca's references to the alleged fiduciary relationship between the Clay Defendants and DeLuca were not within the scope of the Court's order permitting leave to amend the Complaint. The Court's Anti-SLAPP ruling emphasizes that DeLuca's allegations of fiduciary duties constitute an improper legal conclusion. Allegations pertaining to the Clay Defendant's misconduct are irrelevant to the elements of any cause of action asserted in the FAC. (See supra, Section I.B.)

d. See category (a) and see supra, Section I.A.

e. See category (c) and see supra, Section I.B.

f. DeLuca concedes that he has not identified any contractual or statutory basis authorizing such fees and costs. (Opp., at p. 14.)

III. DEMURRER TO THE FAXC -- OVERRULED in part and SUSTAINED with LEAVE TO AMEND in part

DeLuca demurs to the second, third, and fourth causes of action in the FAXC pursuant to Code of Civil Procedure section 430.10, subds. (e) and/or (f).

A. 2 nd Cause of Action: Breach of Fiduciary Duty -- OVERRULED

Bishop's breach of fiduciary duty claim against DeLuca is now adequately pled. DeLuca argues that the second cause of action merely "repackages" Bishop's first cause of action for professional negligence. (Mot., at p. 7.) "[A] breach of fiduciary duty is a species of tort distinct from a cause of action for professional negligence." (Ibid.) Thus, a plaintiff may state cognizable claims for both breach of fiduciary duty and professional negligence where both wrongs independently prejudice the plaintiff's interests. (Id., at p. 1097.) By contrast, where a professional negligence claim and breach of fiduciary duty claim seek the same damages and are both based on the "negligent or inadequate representation" of a client, the claims are duplicative. (Lynch v. Warwick (2002) 95 Cal.App.4th 267, 270.)

One key distinction is whether the breach of fiduciary duty is grounded in mere negligence as opposed to intentional conduct. (See Knutson v. Foster (2018) 25 Cal.App.5th 1075, 1091 (Knutson) ["Because legal malpractice involves negligent conduct on the part of an attorney ... causation for legal malpractice is analyzed differently than causation for the intentional torts of fraudulent concealment and intentional breach of fiduciary duty."].)

Here, the amended allegations in the FAXC make it clear that Bishop's second cause of action is not merely seeking to hold DeLuca liable for professional negligence but for DeLuca's knowing and conscious misconduct taken in disregard for the fiduciary duty of loyalty. (FAXC, P. 42.) Bishop alleges that DeLuca breached his fiduciary duties to Bishop, arising out of their attorney-client relationship, by: (1) knowingly failing to provide complete and accurate information to Bishop regarding the litigation, (2) knowingly advancing the case despite inadequate discovery and trial preparation to mislead, (3) intentionally failing to disclose the status of medical lien documentation, with knowledge that such conduct impeded Bishop's medical treatment, and (4) placing his own interests above DeLuca's with respect to fees and control of the litigation. (Id., P. 40.)

Bishop expressly alleges that such conduct was not merely the result of inadvertence, mistake, or lack of skill, but a knowing and deliberate effort to promote DeLuca's self-interest over his client's interests. (Id., P. 42.) These allegations pertaining to DeLuca's state of mind specifically address the defects identified in the prior demurrer with respect to the distinction between a mere lack of diligence and intentional wrongdoing. Bishop also alleges emotional distress damages independently resulting from DeLuca's intentional conduct, as opposed to his mere professional negligence. (Id., P. 44.) These additional defects make clear that the first and second causes of action are based on independent wrongdoing and give rise to distinct damages. Accordingly, the Court finds that Bishop has stated a claim for breach of fiduciary duty.

B. 3 rd Cause of Action: Fraudulent Concealment -- SUSTAINED with LEAVE TO AMEND

Bishop's fraudulent concealment claim against DeLuca is inadequately pled. [3] "'[T]he elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.' [Citation.]" (Ibid.)

Here, Plaintiff alleges that from 6/21/2021 to 6/27/2025, during the course of representation, DeLuca intentionally failed to disclose "material facts that he was duty-bound to disclose" throughout his regular communications with Bishop via email, telephone, and consultation. (FAXC, P.P. 15, 47-48.) For example, Bishop alleges DeLuca failed to disclose that disciplinary charges had been filed against him with the California State Bar on June 21, 2021 (Case No. 21-O-30461) which resulted in formal discipline with public disclosure. (Id., P. 48.) Bishop further alleges that on or after March 13, 2024, DeLuca concealed material facts concerning the status of his required medical lien documentation necessary for Bishop to obtain treatment. (Id., P. 49.)

DeLuca argues that these allegations are not pled with the requisite level of specificity to overcome the heightened pleading standard for fraud. In California, ¿ " [t]he facts constituting the fraud, including every element of the cause of action, must be alleged factually and specifically. " (Apollo Cap. Fund, LLC v. Roth Cap. Partners, LLC ¿ (2007) 158 Cal. App. 4th 226, 240.) "This particularity requirement necessitates pleading ¿ facts ¿ which show how, when, where, to whom, and by what means the representations were tendered." (Lazar v.

Superior Court ¿ (1996) 12 Cal.4th 631, 645.) ¿ "California courts apply the ¿ same specificity ¿ standard to ¿ evaluate the factual underpinnings of a fraudulent concealment claim at the pleading stage, even though the focus of inquiry shifts to the unique elements of the claim. " (Rattagan ¿ v. Uber Technologies, Inc. ¿ (2024) 17 Cal.5th 1, 43 (Rattagan).)

The Court agrees with DeLuca that the amended allegations in the FAXC do not sufficiently address the defects in this cause of action in the Cross-Complaint, particularly with respect to the first element of fraudulent concealment. Bishop's fraud claim appears to be limited to two non-disclosures: the State Bar disciplinary action and the medical lien documentations. (FAXC, P.P. 47-49.) Bishop continues to vaguely identify the timeline of these non-disclosures, alleging only that the concealment occurred at some point during the four-year period of the attorney-client relationship. (Id., P. 47.)

Although Bishop alleges the purported concealment was ongoing, he should specifically identify when and how he contends that the material facts should have been disclosed to him. For example, is Bishop alleging that DeLuca was obligated to disclose to his clients that he had been merely charged by the State Bar, even before the charges were resolved, or after discipline was formalized? Likewise, were there specific dates on which Bishop sought but was prevented from receiving medical treatment at which point the medical liens should have already been disclosed to him?

When were the medical liens due for completion?

Further, to the extent that Bishop is alleging that DeLuca was duty-bound to disclose his State Bar discipline, Bishop still fails to clarify the specific content of the disciplinary-related facts that should have been disclosed to him. Bishop has not submitted any legal authority evaluating the extent to which an attorney with pending disciplinary charges or disciplinary action short of a suspension of the attorney's license, is ethically obligated to disclose such charges to his client. Bishop has not alleged how or why the disciplinary action against DeLuca was relevant to the Underlying Action or Bishop and DeLuca's relationship such that it constituted a significant development in Bishop's matter.

It remains unclear whether (and if so, at what point) DeLuca's disciplinary charges were material to Bishop's representation in the Underlying Action or how DeLuca's discipline was causally related to Bishop's damages. Accordingly, the Court finds that Bishop fails to sufficiently state a claim for fraudulent concealment.

C. 4 th Cause of Action: Declaratory Relief -- OVERRULED

The Court previously overruled DeLuca's demurrer to Bishop's declaratory relief claim in the Cross-Complaint. The FAXC does not materially amend this cause of action. Bishop continues to seek a judicial declaration determining the parties' rights and obligations pertaining to the fee dispute and DeLuca's fee lien. (FAXC, P. 60.) The Court has already found this cause of action to be legally sufficient and independent of Bishops other causes of action because the declaratory relief claim pertains to DeLuca's ability to recover fees in the Underlying Action whereas Bishop's other claims pertain to damages arising from DeLuca's alleged misconduct in the course of representing Bishop in the Underlying Action. Therefore, the FAXC states a claim for declaratory relief.

IV. MOTION TO STRIKE AS TO THE FAXC -- DENIED

DeLuca moves to strike the allegations in the FAXC which concern his State Bar disciplinary charges on the grounds that they are irrelevant, improper, immaterial and prejudicial. (See FAXC, P.P. 14-18, 48, 53-54.) These allegations for the basis of Bishop's fraudulent concealment claim. Pursuant to the above ruling, Bishop will have an opportunity to amend his fraudulent concealment claim to clarify why the disciplinary charges were material to DeLuca's representation of Bishop in the Underlying Action, when the proceedings should have been disclosed, and the specific scope of the information that Bishop contends should have been disclosed by DeLuca. The Court cannot meaningfully evaluate the relevance of these allegations or the comparable prejudice to DeLuca until Bishop has amended this cause of action. Therefore, this request is DENIED.

DeLuca also moves to strike the prayer for a judicial declaration that DeLuca has no right to attorneys' fees and no valid fee lien on the grounds that it is duplicative of the relief sought in other causes of action. In light of the above ruling on the demurrer to Bishop's declaratory relief action, this request is DENIED.

Defendants Jerome A. Clay, Esq. and Law Office of Jerome A. Clay and Plaintiff/Cross-Defendant Philip P. DeLuca to serve notice of the respective rulings. This tentative ruling ("TR") shall be the order of the Court unless changed at the hearing and shall by this reference be incorporated into the Minute Order. TR emailed to counsel and posted to court website on 9/3/26 at 1:45 p.m.

[1] Notably, DeLuca's Opposition suggests that the allegations concerning Bishop's medical treatment, litigation decisions, and refusal to follow DeLuca's advice were only alleged to "provide context for the deterioration of the attorney-client relationship and the circumstances culminating in DeLuca's withdrawal" and impliedly concedes that these allegations do not constitute intendent breaches of the Agreement. (Opp., at p. 6.)

[2] Notably, DeLuca's contention that the Court previously overruled the demurrer to this cause of action in the original Complaint is incorrect. (See Opp., at pp. 2, 10; see Minute Order, 7/2/2026.) Bishop and the Clay Defendants' demurrer to the third cause of action for declaratory relief was sustained with leave to amend (whereas DeLuca's demurrer to the fifth cause of action for declaratory relief in the Cross-Complaint was overruled). (Ibid.)

[3] To the extent that DeLuca is arguing that Bishop's fraud claim is duplicative of his professional negligence cause of action, the Court disagrees. (Knutson, supra, 25 Cal.App.5th at p. 1091 ["Fraud is an intentional tort distinct from malpractice."].)