PH II, INC. v. Superior Court

Opinion

THE COURT.

1

Petitioner PH II, Inc., seeks a writ of mandate to compel respondent superior court to set aside its order sustaining a demurrer to portions of two causes of action. We do not reach the merits but resolve this matter on a procedural issue after supplemental briefing by the parties. We affirm the rule that a party may not demur to a portion of a cause of action

(Grieves

v.

Superior Court

(1984) 157 Cal.App.3d 159, 163 [203 Cal.Rptr. 556]

(Grieves)),

but suggest that in appropriate circumstances a substantive defect which appears on the face of a complaint, but involves only a portion of a cause of action, may be the subject of a motion to strike.

Petitioner’s first amended complaint sets forth eight causes of action against numerous defendants, including two related causes of action for legal malpractice and breach of contract against real parties William C. Ibershof and his two law partnerships. The two Ibershof causes of action are based on the same set of facts and allege several distinct incidents of alleged malpractice. Real parties demurred to one identical portion of the two causes of action, which involved a single incident of alleged malpractice—Ibershof’s alleged dismissal of an accounting malpractice claim against the firm of Tanner, Mainstain & Hoffer (hereafter the Hoffer claim) without petitioner’s consent.

[1682]

The allegations of the complaint concede that the Hoffer claim was unmeritorious due to the Supreme Court’s then recent decision holding there is no third party liability for accounting malpractice.

(Bily

v.

Arthur Young & Co.

(1992) 3 Cal.4th 370 [11 Cal.Rptr.2d 51, 834 P.2d 745].) Nevertheless, petitioner’s complaint alleges that Ibershof was still liable to petitioner for attorney fees paid for the “aborted prosecution and unauthorized dismissal” of the Hoffer claim, and for expenses incurred by petitioner in investigating the dismissal and attempting to “revive” the Hoffer claim.