Hamid Khazaeli vs Julie B. Cliff et al

Ms. Cliff moves for judgment on the pleadings against Plaintiff on the ground that the FAC fails to state facts sufficient to constitute a cause of action against her.

“A motion for judgment on the pleadings performs the same function as a general demurrer ....” (Cloud v. Northrup Grumman Corp. (1998) 67 Cal.App.4th 995, 999 (Cloud).) “It is axiomatic that a demurrer lies only for defects appearing on the face of the pleadings” (Harboring Villas Homeowners Assn. v. Superior Court (1998) 63 Cal.App.4th 426, 429) and upon matters of which the court may properly take judicial notice (Code Civ. Proc., § 438, subd. (d); Smiley v. Citibank (1995) 11 Cal.4th 138, 146).

“Consequently, when considering a 11 motion for judgment on the pleadings, [a]ll facts alleged in the complaint are deemed admitted ... .” (Sykora v. State Dept. of State Hospitals (2014) 225 Cal.App.4th 1530, 1534, internal citations and quotations omitted.) “Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings.” (Cloud, supra, at 999.)

Under the applicable standard, a defendant moving for judgment on the pleadings may obtain such judgment if she establishes that the complaint “does not state facts sufficient to constitute a cause of action against the defendant.” (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).)

Ms. Cliff’s request for judicial notice is GRANTED as to Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14 and 15 as these items are court records. (Evid. Code, § 452, subd. (d).)

However, Ms. Cliff’s request is DENIED as to Exhibits 13, 16, 17, 18 and 19. The Court emphasizes that while it may take judicial notice of the existence of each document in a court file, it cannot take judicial notice of the truth of hearsay allegations or factual assertions contained in documents such as pleadings, affidavits, declarations or other similar filings because they are not inherently indisputably true. (See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564, internal citation omitted (Sosinsky).)

While the items that the Court has declined to take judicial notice of are also “court records,” they are not the type of document which the Court can take judicial notice of the truth of their contents, and taking judicial notice of their mere existence has no relevance to the disposition of Defendant’s motion. As such, the Court will not take such notice. (See Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [judicial notice is limited to relevant matters] (Gbur).)

Ms. Cliff appears to approach her motion for judgment on the pleadings as if it is akin to a motion for summary judgment, citing to “Undisputed Material Facts” in support of her arguments. (See Code Civ. Proc., § 437c, subd. (b)(1).) This is wholly improper as this is not a motion for summary judgment and there is no authority- statutory or otherwise- which provides for the provision and consideration of such “facts.” These “facts” are listed in her attached declaration; as this is not an evidentiary motion, the Court cannot consider the declaration’s contents. Nevertheless, the Court will evaluate the substantive merits of Ms. Cliff’s arguments.

She first asserts that she is entitled to judgment as to the first cause of action for professional negligence because it fails to state facts sufficient to constitute a cause of action. But she does not attack the sufficiency of the allegations of the claim; instead she argues the underlying merits, i.e., that she was not negligent in the performance of legal work performed on Plaintiff’s behalf.

Can the Court determine whether or not Plaintiff’s claim for legal malpractice has merit based solely on the materials that it has taken judicial notice of? The answer to this question is a clear “no.”

As a general matter, in order to prevail on a legal malpractice claim, a plaintiff must plead and prove the following elements: “(1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney's negligence. [Citations.]” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199-1200.)

The plaintiff must establish, by a preponderance of evidence, “that but for the attorney's negligent acts or omissions, he would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred.” (Namikas v. Miller (2014) 225 Cal.App.4th 1574, 1582, internal citation omitted.) Expert testimony is often necessary to establish the prevailing 12 standard and whether the defendant attorney’s conduct met it. (See Lipscomb v. Krause (1978) 87 Cal.App.3d 970, 976.)

In the FAC, Plaintiff alleges that Ms. Cliff committed professional negligence by:

▪ failing to allege multiple viable trial court’s errors, including issues reflected in two orders after judgment, allowing attack to Plaintiff’s character, and refusing to let Plaintiff introduce evidence of costs and attorney’s fees incurred in procuring the judgment in the employment discrimination case; ▪ copying and pasting Plaintiff’s and Plaintiff’s former attorneys legal work without checking them for correctness and completeness instead of performing fresh legal work; ▪ failing to tell Plaintiff that she did not completely review and incorporate the records on appeal; ▪ failing to demonstrate ordinary professional competence by repeatedly failing to effectively prepare documents for Plaintiff; ▪ failing to timely file the Reply Brief; ▪ failing to attend and complete Oral Argument; ▪ failing to timely and correctly comply with Rule 1.16(e) of the State Bar of California Rules of Professional Conduct; ▪ failing to timely, correctly and competently respond to Plaintiff’s questions and inquiries; ▪ providing false/forged documents to Plaintiff; ▪ failing to timely inform the Plaintiff of significant developments pertaining to the representation; ▪ intentionally misrepresenting facts in communications with Plaintiff amounting to fraud; ▪ failing to timely and correctly comply with Rule 1.15 of the State Bar of California Rules of Professional Conduct; ▪ refusing to give the legal research and work product of representation to Plaintiff; disclosing attorney-client privileged information; ▪ causing damages and liabilities to Plaintiff; and ▪ abandoning Plaintiff by improperly withdrawing at a key juncture in the proceedings

(FAC, ¶ 7.)

The Court cannot determine whether all of the alleged incidents occurred or not based solely on the materials of which it has taken judicial notice. Ms. Cliff concludes her discussion concerning the first cause of action by asserting that the claim does not state sufficient facts to establish “but for” causation, but that is not what she is actually arguing. Instead, she is arguing that she did not cause Plaintiff to suffer any damages. This is an argument aimed at the underlying merits and not the sufficiency of the pleadings. Accordingly, Ms. Cliff fails to establish that she is entitled to judgment on the first cause of action.

Ms. Cliff’s motion suffers from the same problem with respect to the remaining causes of action. That is, she asserts that Plaintiff “fails to state sufficient facts” to state his claims for breach of contract, conversion and breach of fiduciary duty because she did not commit the negligent acts she is alleged to have committed and thus could not have caused his alleged damages.

She does make passing reference to Plaintiff failing to plead sufficient factual details 13 to support his breach of fiduciary duty claim, but cites no authority which provides that the claim must be pleaded with greater detail than it has been in the FAC. Ms. Cliff also attacks certain allegations pertaining to violations of the Rules of Professional Conduct as insufficient to give rise to claims for damages, but as these purported violations are not the only acts upon which Plaintiff’s claims are based, even if Ms. Cliff’s argument is correct, it does not eliminate each cause of action in its entirety.

Given the foregoing, Ms. Cliff’s motion for judgment on the pleadings is DENIED.

III. PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS

A plaintiff moving for judgment on the pleadings may obtain such judgment if he establishes that “the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.” (Code Civ. Proc., § 438, subd. (c)(1)(A), emphasis added.)

Plaintiff’s request for judicial notice of the amended declaration filed by him in support of his pending “Motion for Sanctions and Deposition” is DENIED. While the Court could take judicial notice of the existence of this item as a court record, it cannot accept the truth of any of its contents. (See Sosinsky, supra, 6 Cal.App.4th at 1564.) The fact of the declaration’s existence is irrelevant to the disposition of Plaintiff’s motion. Accordingly, the Court will not take judicial notice of it. (See Gbur, supra, 93 Cal.App.3d at 301.

Plaintiff’s motion for judgment on the pleadings as to the FAC is DENIED. Plaintiff fails to establish that Ms. Cliff’s Amended Answer to the FAC fails to state facts sufficient to constitute a defense. Plaintiff urges that the affirmative defenses pleaded in the Amended Answer are defective and seeks judgment as to each because they are not supported by sufficient facts but the Court has already overruled his demurrer to the first, third, and eighth affirmative defenses as pleaded in the original answer on this ground and sees no reason to depart from this ruling based on how they are pleaded in the Amended Answer.

Further, Ms. Cliff adequately pleads a general denial (see Amended Answer at 1:19-20 [stating that Ms. Cliff “generally denies each and every allegation of [the FAC].” Given the foregoing, it cannot be said that the answer “does not state facts sufficient to constitute a defense to the complaint.” (Code Civ. Proc., § 438, subd. (c)(1)(A).)

As for the remaining affirmative defenses, Plaintiff’s motion is GRANTED as to the fifth affirmative defense for laches; his demurrer to this defense as pleaded in Ms. Cliff’s original answer was sustained without leave to amend by the Court in its order dated March 12, 2025.

The motion is also GRANTED as to the seventh affirmative defense for unjust enrichment; Plaintiff’s demurrer to this defense was sustained with leave to amend but Ms. Cliff has made no amendments to it.

Plaintiff’s motion is otherwise DENIED as he fails to establish that Ms. Cliff has not sufficiently pleaded the remaining affirmative defenses, all of which the Court previously sustained a demurrer to with leave to amend. Ms. Cliff has added the necessary factual support to these defenses.

The Court will prepare the final order.

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