Tung vs. Purcell

305 Tung vs. Purcell Before the Court are a Demurrer and Motion to Strike filed by defendants Byron Michael Purcell and Ivie McNeill Wyatt Purcell & Diggs as to the Complaint filed by plaintiff Derek C. Tung.

The Demurrer is SUSTAINED as to the 1st and 3rd- 6th causes of action and OVERRULED as to the 2nd cause of action.

The Motion to Strike is GRANTED and DENIED, in part, as set forth herein.

Plaintiff has leave to file a first amended complaint by 6/12/26.

Demurrer

1st Cause of Action: Breach of Contract – This claim is not sufficiently pled. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) Terms of written contract are not set out verbatim and written agreement is not attached. (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) The demurrer is sustained on this cause of action.

2nd Cause of Action: Breach of Fiduciary Duty – This cause of action is distinct from the legal malpractice claim in that plaintiff alleges actions taken “for their financial gain.” (Complaint ¶31) (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086 [“a breach of fiduciary duty is a species of tort distinct from a cause of action for professional negligence”].) The demurrer is overruled on this cause of action.

3rd Cause of Action: Gross Negligence – “California does not recognize a distinct common law cause of action for gross negligence apart from negligence.” (Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 552, fn.3) Further, this cause of action is duplicative of the 7th cause of action for

Legal Malpractice. (Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 [duplicative cause of action properly subject to demurrer].) The demurrer is sustained as to this cause of action.

4th Cause of Action: Reckless Disregard – Plaintiff cites no authority in opposition to defendant’s argument that “reckless disregard” is not a separate cause of action. (DuPont Merck Pharmaceutical Co. v. Sup. Ct. (2000) 78 Cal.App.4th 562, 566 [“By failing to argue the contrary, plaintiffs concede this issue”].) The demurrer is sustained as to this cause of action.

5th Cause of Action: Breach of Covenant of Good Faith and Fair Dealing – This claim is not sufficiently pled. (Judicial Council of California Civil Jury Instructions, CACI No. 325 (2026).) Plaintiff fails to allege any facts beyond those alleged in the breach of contract cause of action. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1394.) The demurrer is sustained as to this cause of action.

6th Cause of Action: Violation of Professional Code and Ethics - Defendants argue there is no separate cause of action for violation of the Rules of Professional Conduct and that such are used to show attorney malpractice. Plaintiff does not dispute this argument in his opposition. In fact, plaintiff reiterates defendants’ argument and concedes the Rules “do not create an independent civil cause of action.” (Opp. at 3:20-21.) The demurrer is sustained as to this cause of action.

Motion to Strike

In light of the ruling on the demurrer, the motion to strike the references to “professional code and ethics” in Paragraphs 46-51, as well as the motion

to strike “punitive style allegations” found in Paragraphs 38, 39 and 42 are MOOT.

The motion to strike plaintiff’s reference to a dollar amount of damages as stated in Paragraphs 28, 32, 36, 40, 44, 51, 57, and Prayer ¶ 1 is DENIED. (See Code of Civil Procedure §425.10.)

The motion to strike the request for attorney’s fees in the prayer for damages is GRANTED. No statutory or contractual basis is provided. (Code of Civil Procedure §1021)

The court continues the CMC to 9/28/26 at 8:45am.

Defendants shall give notice.

306 Carreno Garcia The motion to compel arbitration of the claims of vs. LA Veta plaintiff Martin Carreno Garcia (Plaintiff) filed by Healthcare, defendants La Veta Healthcare, Inc. and The INC. Ensign Group, Inc. (collectively, Defendants) is CONTINUED for an evidentiary hearing.

Plaintiff contends there is no mutual assent here because he does not read or speak English and thus did not know what he was signing, and Defendants knew this but nevertheless required Plaintiff to sign the subject arbitration agreement with no translation.

The evidence submitted by the parties shows two sharply conflicting factual accounts as to Plaintiff’s claimed inability to read or speak English and as to whether Defendants knew Plaintiff could not read or speak English. Due to the foregoing factual disputes, the court finds an evidentiary hearing is appropriate to address these issues. (See Hotels Nevada v. L.A. Pac. Ctr., Inc. (2006) 144 Cal.App.4th 754, 762-763.)