Howard v. Superior Court

Opinion

NOTT, J.

Petitioners seek a writ of mandate directing respondent to set aside an order overruling their demurrer to the aiding and abetting count contained within the operative complaint of real party in interest, Jeremy E. Simms.

Simms filed a multicount complaint against Alan E. Robbins, Marina East Holding Partnership (MEHP), and petitioners. The complaint alleged that Robbins and MEHP acquired real property located in Marina del Rey by engaging in a pattern of ongoing wrongful business conduct. This conduct purportedly included drawing up transactional documents which falsely recited that Simms was a partner with Robbins in MEHP; representing to the sellers of the real property that Simms was a general partner in MEHP; submitting a copy of Simms’s financial statement to the sellers; and falsely representing that his financial resources stood behind the acquisition activities of Robbins and MEHP. Petitioners are attorneys who represented Robbins and MEHP with respect to the acquisition of the property. They allegedly “aided and abetted” their clients by serving as a vehicle for the communication of these same falsehoods.

Petitioners demurred on the ground that an aiding and abetting count cannot be pled as a civil action, and that the count was, in any event, barred by Civil Code section 1714.10.

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When the superior court overruled the demurrer, this petition for writ of mandate followed.

Former section 1714.10 provided, in pertinent part, as follows: “No cause of action against an attorney based upon a civil conspiracy with his or her client shall be included in a complaint or other pleading unless the court enters an order allowing the pleading that includes a claim for civil conspiracy to be filed after the court determines that the party seeking to file the

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pleading has established that there is a reasonable probability that the party will prevail in the action. . . .”

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