Jackson, DeMarco Demurrer to Complaint

Transcription

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1 SHEPPARD,MULLIN,RICHTER&HAMPTONLLP / . ,
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A Limited Liability Partnership G. ~ ex I I
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Including Professional Corporations GREGORY A. LONG, CaL BarNo. 57642
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3 333 South Hope S1., 43rd Floor
Los Angeles, California 90071
4 Telephone: 213-620-1780
FacsImile: 213-620-1398
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SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
A Limited Liability Partnership
6
Including Professional Corporations
MATTHEWW. HOLDER, CaL BarNo. 217619
7 MATTHEW
M. MUELLER, Cal. Bar No. 268486
8 12275 El Camino Real, Suite 200
San Diego, California 92130-2006
9 Telephone: 858-720-8900
FacsImile: 858-509-3691
10
Attorneys for Defendants JACKSON,
11 DeMARCO, TIDUS & PECKENPAUGH, A
LAW CORPORATION and MOHAMED ALIM
12 AHMAD MALIK
13
SUPERIOR COURT OF THE STATE OF CALIFORNIA 14
FOR THE COUNTY OF SAN DIEGO 15 SAN DIEGO POLICE OFFICERS
ASSOCIATION,
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Plaintiffs,
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v.
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JACKSON, DeMARCO, TIDUS &
19 PECKENPAUGH,ALAW
CORPORATION, GREGORY GLENN
20 PETERSEN, an individual, MOHAMED
ALIM AHMAD MALIK, an individual,
21 and DOES 1-50,
22
Defendants.
Case No. 37-2010-00088794-CU-PN-CTL
DEFENDANTS JACKSON,
.D EMARCO, TIDUS &
PECKENPAUGH AND MOHAMED
ALIM AHMAD MALIK'S NOTICE OF
DEMURRER AND DEMURRER TO
PLAINTIFF'S COMPLAINT;
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT
[Declaration of Matthew M. Mueller and
Request for Judicial Notice filed
concurrently herewith]
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Judge:
Dept.:
Date:
Time:
25
Complaint Filed: Mar. 29,2010
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Trial Date: None Set
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Hon. John S. Meyer SD-61 July 2, 2010 10:30 a.m. 27
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DEFENDANT JACKSON DEMARCO'S DEMURRER
TO PLATNTTFF'~ (;()MPT .A TNT
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD 2
NOTICE IS HEREBY GIVEN that on July 2,2010, at 10:30 a.m., or as soon
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4 thereafter as counsel may be heard, in Department SD-61 of the above-entitled Court,
5 located at 330 West Broadway, San Diego, CA 92101, defendants JACKSON,
6 DEMARCO, TIDUS & PECKENPAUGH, A LAW CORPORATION and MOHAMED
7 ALIM AHMAD MALIK (collectively, "Jackson DeMarco") will bring on for hearing their
8 demurrer to the complaint filed by plaintiff San Diego Police Officers Association
9 pursuant to California Code of Civil Procedure sections 430.10 and 430.30. Jackson
10 DeMarco's demurrer is made on the grounds that there is another action pending between
11 the same parties on the same cause of action, see Code Civ. Proc. §§ 430.l0(c), 597, and
12 also that the complaint fails to state facts sufficient to constitute a cause of action. See
13 Code Civ. Proc. § 430.10(e). Jackson DeMarco requests that the Plaintiff be denied leave
14 to amend.
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This Demurrer is based upon this Notice of Demurrer and Demurrer, the
17 Memorandum of Points and Authorities, the Request for Judicial Notice, the Declaration of
18 Matthew M. Mueller, all other pleadings, papers, records and documentary materials on
19 file or deemed to be on file, those other matters of which this court mayor must take
20 judicial notice, the arguments of counsel at the hearing on this Demurrer, and upon such
21 other evidence and materials as this Court may consider.
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1 DATED: May 3, 2010
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By
GORYA.LONG
MAT HEWW.HOLDER MATTHEW M. MUELLER Attorneys for Defendants JACKSON, DeMARCO, TIDUS & PECKENPAUGH, ALAW CORPORATION and MOHAMED ALIM AHMAD MALIK 5
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DE~RTOTHECO~LMNT
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Defendants JACKSON, DEMARCO, TIDUS & PECKENPAUGH, A LAW
4 CORPORATION and MOHAMED ALIM AHMAD MALIK (collectively, "Jackson
5 DeMarco") demur to the complaint of plaintiff San Diego Police Officers Association (the
6 "SDPOA") on the following grounds:
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1.
There is another action pending between the same parties on the same
9 cause of action. See Code Civ. Proc. §§ 430.1 O(c), 597.
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2.
The First Cause of Action fails to state facts sufficient to constitute a
12 cause of action. See Code Civ. Proc. 430. 1O(e).
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DEMURRER TO FIRST CAUSE OF ACTION
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Jackson DeMarco demurs to the SDPOA's frrst cause of action for attorney
17 malpractice on the following grounds:
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1.
There is another action pending between the same parties on the same
20 cause of action. See Code Civ. Proc. §§ 430.10(c), 597.
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2.
The First Cause of Action fails to state facts sufficient to constitute a
23 cause of action. See Code Civ. Proc. 430.10(e).
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1 DATED: May 3,2010
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SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 3
4
By
G GORYA.LONG MAT HEW W. HOLDER MATTHEW M. MUELLER Attorneys for Defendants JACKSON, DeMARCO, TIDUS & PECKENPAUGH, A LAW CORPORATION and MOHAMED ALIM AHMAD MALIK 5
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TABLE OF CONTENTS 2
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I. INTRODUCTION...................................................................................................... 1 II. STATEMENT OF FACTS ......................................................................................... 5 4
5
6
A. The Ellis Case ................................................................................................. 5 7
B. The SDPOA Case ............................................................................................ 7 8
III. LEGAL STANDARD ON A DEMURRER .............................................................. 8 9
IV. JACKSON DEMARCO'S DEMURRER SHOULD BE SUSTAINED BECAUSE THIS ACTION IS DUPLICATIVE OF THEELLIS CASE.................. 9 10
V. 13
JACKSON DEMARCO'S DEMURRER SHOULD ALSO BE SUSTAINED BECAUSE PLAINTIFF HAS NOT PLED, AND CANNOT PLEAD, FACTS IN SUPPORT OF THE CAUSATION AND DAMAGES ELEMENTS OF A CLAIM FOR LEGAL MALPRACTICE. ................................ 10 14
A. To Prevail on a Claim for Legal Malpractice, the Plaintiff Must Prove That the Defendant Caused the Plaintiffs Harm........................................... 10 B. Causation in a Legal Malpractice Case Is Appropriately Treated as an Issue of Law, Rather Than Fact, When the Underlying Litigation Was Decided Based on a Question of Law........................................................... 12 C. The Plaintiff Cannot Establish That Had Defendants Made A Different Argument, The Plaintiff Would Have Obtained a More Favorable Outcome ....................................................................................... 12 11
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VI. CONCLUSION ........................................................................................................ 14 21
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TABLE OF AUTHORITIES 1
2
Page(s)
State Cases
3
4 Anaheim Elem. Educ. Ass'n v. Board of Educ. (1986)·
179 Cal.App.3d 1153 (1986) ....................................................................................... 10
5
Bistawros v. Greenberg (1987)
6
189 Ca1.App.3d 189 ....................................................................................................... 8
7
Bockrath v. Aldrich Chemical Co. (1999)
8
21 Ca1.4th 71 .................................................................................................................. 8
9 Cal. League of City Employee Ass'ns v. Palos Verdes Library Dist. (1978)
87 CaLApp.3d 135 ....................................................................................................... 13
10
11 Cal. Union Ins. Co. v. Trinity River Land Co. Inc. (1980)
105 CaLApp.3d 104 ....................................................................................................... 8
12
Carroll v. Puritan Leasing Co. (1978)
77 Cal.App.3d 481 ......................................................................................................... 8
13
14
Crowley v. Katleman (1994)
8 CaL4th 666 ................................................................................................................ 10
15
16 Davaloo v. State Farm Insurance Co. (2005)
135 CaLApp.4th 409 ...................................................................................................... 8
17
18 Freeman v. San Diego Ass'n of Realtors (1999)
77 Cal.App.4th 171 ........................................................................................................ 8
19
Piscitelli v. Friedenberg (2001)
20
87 Cal.App.4th 953 ...................................................................................................... 12
21
San Bernardino Pub. Employees Ass'n v. City of Fontana (1998)
22
67 CaLApp.4th 1215 .................................................................................................... 13
23 Shopoff & Cavallo LLP v. Hyon (2008)
167 CaLAppAth 1489 ...................................................................................... 10, 11, 13
24
25 St. Paul Fire & Marine Ins. Co. v. American Dynasty Surplus Lines Ins. Co. (2002)
101 Cal.App.4th 1038 .................................................................................................. 10
26
Steigerwald v. Godwin (1956)
144 Cal.App.2d 591 ................................................................................................. 9, 10
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1 Thompson v. Halvonik (1995)
36 CaLApp.4th 657 ...................................................................................................... 11
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3 Viner v. Sweet (2003)
30 Ca1.4th 1232 ............................................................................................ 2, 11, 12, 13
4
5
Federal Cases
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7 Vaxiion Therapeutics, Inc. v. Foley & Lardner LLP (S.D.CaL 2008)
2008 WL 5147201 ....................................................................................................... 11
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State: Statutes, Rules, Regulations, Constitutional Provisions
10
11 Cal. Code Civ. Proc. §430.10............................................................................................................ 1,8,9,10 12
§ 430.30 .......................................................................................................................... 8 § 430.70 .......................................................................................................................... 8 13
§ 597 ..................................................................................................................... 2,8, 14 14
Evidence Code § 452(d) ...................................................................................................... 8 15
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Other Authorities
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18 Ronald E. Mallen and Jeffrey M. Smith, LEGAL MALPRACTICE, Fifth Ed.
Vol. 5, § 33.11 (2000) .................................................................................................. 12
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1
MEMORANDUM OF POINTS AND AUTHORITIES
2
3
I. 4
INTRODUCTION 5
6
Defendants Jackson, DeMarco, Tidus & Peckenpaugh, A Law Corporation,
7 and Mohamed Alim Ahmad Malik (collectively, II Jackson DeMarco") demur to the legal
8 malpractice complaint (the "Complaint") filed by plaintiff San Diego Police Officers
9 Association (the "SDPOA") on the grounds that there is another cause of action pending
10 between the same parties on the same cause of action, and also because the complaint fails
11 to state a cause of action. See Code Civ. Proc. § 430.l0(c).
12
13
In particular, the SDPOA alleges in its Complaint that Jackson DeMarco
14 represented the SDPOA in underlying litigation against the City of San Diego (the "City")
15 and others. The SDPOA claims that Jackson DeMarco failed to properly litigate the
16 SDPOA's members' entitlement to certain retirement health benefits from the City, which
17 in turn resulted in a reduction of those benefits and resulting damages. See Complaint, ~
18 II(b). The problem with the SDPOA's Complaint is that on February 24,2010, those
19 same members of the SDPOA (represented by the same attorney representing the SDPOA
20 in this action) filed a virtually identical legal malpractice complaint against Jackson
21 DeMarco. See Dec!. of Matthew Mueller, ~ 2, Ex. A. The earlier complaint filed by the
22 members of the SDPOA alleges the same breach of duty in connection with the retirement
23 health benefit issue. See id., Ex. A at ~~ 17-22.
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25
In light of the above, it is apparent that the SDPOA and its members
26 (represented by the same attorney) are seeking the same relief, based upon the exact same
27 alleged wrong, in two parallel actions filed here in Superior Court. Pursuant to Code of
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1 Civil Procedure section 430.10(c), that is improper, and the second-filed action by the
2 SDPOA should be abated. See Code Civ. Proc. § 597.
3
4
In addition, the legal malpractice action filed by Plaintiff against the
5 defendants also fails because, as a matter of law, Plaintiff cannot satisfy the causation and
6 damages elements of its malpractice claim. In particular, Plaintiff cannot establish that
7 "but for" the alleged legal malpractice, it is more likely than not that it would have
8 achieved a more favorable outcome. See Viner v. Sweet (2003) 30 Cal.4th 1232, 1240-43.
9 As a result, its complaint fails to state a cause of action.
10
11
As noted above, Plaintiffs lawsuit arises out of the SDPOA's bitter and
12 protracted fight with the City over retirement health benefits. Plaintiff alleges that Jackson
13 DeMarco represented the SDPOA, as well as its members, in the underlying litigation
14 against the City. According to Plaintiff, central to its position in the underlying lawsuit
15 was its argument that retirement health benefits were vested, and hence the City could not
16 unilaterally modify those benefits. Plaintiff alleges that the defendants did a poor job of
17 presenting this issue to the courts (although not a single allegedly negligent act or omission
18 is identified with specificity). Judge Huff of the United States District Court for the
19 Southern District of California, and Judges Callahan, Ikuta and Shadur of the United States
20 Circuit Court of Appeals for the Ninth Circuit, disagreed with Plaintiffs legal position and
21
ruled that the retirement health benefits were not vested, and hence they could be changed
22 by the City. See Mueller Decl., ~~ 3-4, Exs. B, C. Plaintiff alleges that as a result of this
23 ruling, the City modified the retirement health benefit by imposing an annual cap on
24 benefits through an amendment to the City's Municipal Code. See id., ~ 5-6, Exs. D, E.
25
26
The fatal defect inherent in Plaintiffs lawsuit is that Plaintiff cannot plead or
27 establish that Jackson DeMarco caused Plaintiff any harm. The complaint merely
28 speculates that Jackson DeMarco could have obtained a more favorable outcome had it
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1 done some unspecified act (the nature of which one is forced to guess). Whether or not the
2 retirement health benefits were vested is a legal question. Both Judge Huff and the
3 unanimous Ninth Circuit panel examined all California authorities and determined, as a
4 matter of law, that the benefits were not vested. The complaint is resoundingly silent
5 about what fact, given that the issue is one oflaw, or what legal precedent or argument
6 would have convinced these judges to abandon their positions and adopt the opposite one.
7 The lengthy, reasoned opinions of the courts, of which this court is requested to take
8 judicial notice, establish beyond contradiction that the judges were firm in their view.
9
10
Plaintiffs inability to plead or prove causation becomes more obvious when
11 the underlying record is examined further. Although the federal causes of action brought
12 by the SDPOA and its members were disposed of on the merits, the state law causes of
l3 action were dismissed without prejudice. Subsequently, two state court cases were filed.
14 The first, SDPOA v. Aguirre, et aI., San Diego Superior Court Case No. GIC 841845, was
15 dismissed by the SDPOA on December 9,2009, by the Plaintiffs' attorney, Michael
16 Conger (with prejudice as to the City, and without prejudice as to the San Diego City
17 Employees' Retirement System). The second case, Aaron, et aL v. Aguirre, et aI., San
18 Diego Superior Court Case No. 37-2008-00093078-CU-OE;.CTL, was filed on October 2,
19 2008, and has been stayed until June 4, 2010. See Mueller Decl., ~ 8. Thus, state law
20 remedies which, had they been successfully prosecuted, would have obviated any claim of
21 damage by the Plaintiff, are either still pending or have been dismissed by the Plaintiff and
22 its malpractice attorney.
23
24
Because it has either terminated or failed to prosecute these state court
25 claims, Plaintiff is now precluded from asserting that any act or failure to act on the part of
26 the defendants in this litigation caused them any injury. Such an assertion would indeed be
27 mere speCUlation and guesswork. In the underlying litigation, Judge Huff denied the
28 defendants' motion for attorneys' fees in the Aaron case. See Mueller Decl., ~ 7, Ex. F
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1 (Opposition to Stipulation of Dismissal of Appeal with Prejudice, filed by defendant
2 Gregory Petersen in the Ninth Circuit cases of Abbe v. City of San Diego and Browder v.
3 City of San Diego, at its Exhibit C). Judge Huff stated, "The Court concludes that the
4 plaintiffs' civil rights claims were not frivolous. The Court presided over extensive
5 litigation involving the legal issues raised by plaintiffs." Id.,2:25-27. Judge Huffs order
6 also notes the fact that in granting summary judgment on the federal claims, the District
7 Court declined to continue to exercise supplemental jurisdiction and dismissed the state
8 claims without prejudice. "The Court's Order noted that plaintiffs were free to pursue their
9 state claims in state court where significant litigation over the same issues is ongoing." Id.,
10 2:9-10. Judge Huff also noted that the state claims were dismissed for reasons "that have
11 nothing to do with the probability of success on the merits." Id.,3:24-26. Because of the
12 pendency of those state claims, Judge Huff found that the defendants had not prevailed and
13 were not entitled to attorneys' fees. Now, because the Plaintiff has chosen to dismiss these
14 state claims, their eventual outcome must necessarily be left to speculation and conjecture,
15 a fact that is fatal to this malpractice claim.
16
17
Finally, Plaintiff cannot seriously assert that it knows what motivated the
18 City or that the City would not have taken other steps to reduce the pay and/or retirement
19 benefits if only the ghostly legal argument had been made. The City was facing more than
20 a billion dollar deficit as a result of pension plan liabilities. Simply put, Plaintiff cannot
21 show that "but for" Jackson DeMarco's alleged negligence, it is more likely than not that
22 the District Court and the Ninth Circuit would have reached a different result, or that the
23 Ninth Circuit's decision caused the City to reduce the compensation package, when the
24 City had already stated, before the litigation had been filed, that it intended to do so.
25 Consequently, Plaintiffs lawsuit fails as a matter oflaw and should be dismissed.
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II. 1
STATEMENT OF FACTS
2
3
The two legal malpractice actions at issue in this demurrer both arise out of
4
5 Jackson DeMarco's alleged representation of the SDPOA and its members in litigation
6 against the City and others involving retirement health benefits. See Complaint, , 9; see
7 also Mueller Dec!., Ex. A at , 14. The underlying litigation allegedly took place between
8 2005 and 2009. See id. Additional information regarding the allegations of the two legal
9 malpractice actions is provided below.
10
11 A.
The Ellis Case
12
13
On February 24,2010, the members of the SDPOA, represented by attorney
14 Michael A. Conger, filed a complaint captioned Christopher Ellis, et aI. v. Jackson,
15 DeMarco, Tidus & Peckenpaugh, A Law Corp., et aI., Case No. 37-2010-00086284-CU
16 PN-CTL, in San Diego Superior Court (the "Ellis case"). See Mueller Decl., Ex. A. The
17 Ellis case has been assigned to Judge Ronald S. Prager.
18
19
The plaintiffs in the Ellis case allege that they are police officers employed
20 by the City, and they purport to sue as class representatives on behalf of themselves and
21 over 1,800 of their fellow police officers. See id., Ex. A at" 13, 24. The defendants in
22 the Ellis case include Jackson DeMarco, as well as five attorneys who previously worked
23 at Jackson DeMarco. See id., Ex. A at" 4-9.
24
25
According to the plaintiffs in the Ellis case, they and their fellow officers
26 retained the defendants in 2005 and 2006 "to handle a legal matter related to the
27 implementation by the City of a last, best, and final offer" to the SDPOA. Id., Ex. A at,
28 14. They allege that the defendant attorneys filed litigation against the City on behalf of
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1 the Plaintiffs as individuals, and also on behalf of the SDPOA. See id., Ex. A at ~ 15.
2 According to the complaint, "[o]ne of the claims prosecuted" in the underlying litigation
3 "involved the City's imposition of eligibility requirements for SDPOA members, including
4 the plaintiffs, for health insurance after retirement (,retiree health')," Id., Ex. A at ~ 17.
5 The plaintiffs in the Ellis case allege the defendant attorneys "took the legal position that,
6 because retiree health was a vested benefit, it could not be unilaterally modified by the
7 City, and the City's imposition" of its last, best, final offer "was unconstitutional." Id., Ex.
8 A at ~ 18.
9
10
The plaintiffs in the Ellis case allege that the defendant attorneys breached
11 their duty of care by "fail[ing] to investigate, discover, present, and argue available factual
12 evidence and legal precedent which would have established that, in fact, retiree health was
13 a vested benefit which the City could not unilaterally impair." Id., Ex. A at ~ 19. They
14 argue that "[a]s a result of the negligence of the defendant attorneys in bringing and in
15 poorly prosecuting the retiree health issue, the United States District Court for the
16 Southern District of California and the United States Court of Appeals for the Ninth
17 Circuit ruled that retiree health benefits are not vested." Id., Ex. A at ~ 20. Moreover, the
18 City later "rel[ied] on those legal rulings" by "substantially reduc[ing] the retiree health
19 benefit by imposing a cap of $8,880 per year for any SDPOA member retiring after July 1,
20 2009." Id., Ex. A at ~ 21.
21 22
Accordingly, as a result of the alleged negligence by the defendant attorneys, 23 the plaintiffs in the Ellis case allege that they and approximately 1,800 of their similarly
24 situated fellow police officers "have already sustained damages in excess of$142 million." 25 Id., Ex. A at ~ 22.
26
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1 B.
The SDPOA Case
2
3
On March 29,2010, the SDPOA filed this Complaint against Jackson
4 DeMarco and two of its attorneys (one former, and one current) asserting a single cause of
5 action for legal malpractice. Gregory Glenn Petersen is the former attorney, and is being
6 represented by separate counseL The SDPOA is represented by the same attorney,
7 Michael A. Conger, who is representing the members of the SDPOA in the Ellis case.
8
9
As in the Ellis case, the Complaint alleges Jackson DeMarco represented the
10 SDPOA in the same underlying litigation against the City. See Complaint"
9. In
11 paragraph 11 of the Complaint, the SDPOA generally alleges nine different breaches of the
12 duty of care, one of which is Jackson DeMarco's alleged failure "to present sufficient
13 evidence to prevail on the retiree health claim in SDPOA v. Aguirre, et al., although such
14 evidence existed, resulting in a reduction of retiree health benefits to SDPOA members."
15 Id. at ~ l1(b). As a result of these and the other alleged breaches of the duty of care, the
16 SDPOA seeks damages, including the fees it paid to Jackson DeMarco in the underlying
17 litigation. See id. at p. 3, ~ 12.
18
19
On the same day the SDPOA filed its Complaint in this case, it also filed a
20 Notice of Related Cases that addresses the overlap between this case and the Ellis case. In
21 its Notice of Related Cases, the SDPOA concedes the following overlap between the two
22 cases: (1) they both involve two "identical defendants" (Jackson DeMarco and Petersen);
23 (2) they both "arise from the same or substantially identical transactions and events,
24 requiring determination of substantially identical questions of law and fact"; and (3) they
25 "are likely to require substantial duplication ofjudicial resources if heard by different
26 judges." Notice of Related Cases at p. 1, lines 24-28.
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1
III. 2
LEGAL STANDARD ON A DEMURRER
3
4
A demurrer is proper when there is another action pending between the same
5 parties on the same cause of action. Code Civ. Proc. § 430.10(c); see also Bistawros v.
6 Greenberg (1987) 189 Ca1.App.3d 189, 191 (tlAn objection to a complaint on the basis that
7 a substantially similar lawsuit is pending is properly raised by demurrer."). A cause of
8 action is the same if the prior and present actions are based on the violation of the same
9 right, even though the relief sought in the actions may be different. Carroll v. Puritan
10 Leasing Co. (1978) 77 Cal.App.3d 481, 487. When the demurrer is based on the existence
11 of another action pending, the court may take notice of the other pending suit. Cal. Union
12 Ins. Co. v. Trinity River Land Co. Inc. (1980) 105 Cal.App.3d 104, 108; see also Code
13 Civ. Proc. § 430.70 (permitting judicial notice on demurrer). When such a demurrer is
14 sustained, the court should enter an interlocutory judgment in favor of the defendant in the
15 second action. See Code Civ. Proc. § 597.
16
17
A demurrer is also appropriate if a "pleading does not state facts sufficient to
18 constitute a cause of action." Code Civ. Proc. § 430.10(e); Bockrath v. Aldrich Chemical
19 Co. (1999) 21 Cal.4th 71, 83. "Although a court must on demurrer accept as true properly
20 pleaded facts, a demurrer does not admit contentions or conclusions of law or fact."
21 Freeman v. San Diego Ass'n of Realtors (1999) 77 Cal.AppAth 171,185 n.ll. A demurrer
22 can also be based on matters subject to judicial notice. See Code Civ. Proc., §430.30(a).
23 Pursuant to Evidence Code section 452(d), a court can take judicial notice of the court
24 records of any court of record in the United States. When court records subject to judicial
25 notice disclose an absolute defense to an action or a deficiency in the complaint, the matter
26 can be adjudicated by way of demurrer. See Bistawros, 189 CaLApp.3d at 192. Leave to
27 amend should be denied where any amendment would be futile. See Davaloo v. State
28 Farm Insurance Co. (2005) 135 Cal.AppAth 409,414-15.
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TO PLAINTIFF'S COMPLAINT
1
IV. 2
JACKSON DEMARCO'S DEMURRER SHOULD BE SUSTAINED BECAUSE 3
THIS ACTION IS DUPLICATIVE OF THE ELLIS CASE.
4
5
Here, the SDPOA and the plaintiffs in the Ellis case are bringing the exact
6 same claim for legal malpractice. As set forth above, both complaints allege the same
7 purported wrongdoing by Jackson DeMarco (failing to properly prosecute the claim
8 regarding retirement health benefits), and both seek damages based on that alleged
9 wrongdoing. Pursuant to Code of Civil Procedure section 430.10(c), that is improper,
10 because the same plaintiff cannot pursue the same claim against the same defendant in
11 mUltiple, successive actions. Permitting such pleading would risk inconsistent results,
12 would waste judicial resources, and would permit the harassment of defendants like
13 Jackson DeMarco. See Steigerwald v. Godwin (1956) 144 Cal.App.2d 591,596.
14
15
The SDPOA's Notice of Related Cases essentially concedes the propriety of
16 this demurrer, and goes on to suggest that as a result of the similarity between this case and
17 the Ellis case, this case should be transferred to Judge Prager (since the Ellis case was filed
18 first). See id. at p. 1, lines 24-28 (admitting that both cases "arise from the same or
19 substantially identical transactions and events, requiring determination of substantially
20 identical questions of law and fact, II and both cases are also "likely to require substantial
21 duplication ofjudicial resources if heard by different judges ") and p. 2 (proposing transfer
22 to Judge Prager). However, merely transferring this case to Judge Prager does not change
23 the fact this case was improperly filed in the first instance. Simply put, the defendants and
24 the Court should not be forced to construct case management solutions in response to the
25 SDPOA's improper decision to file a duplicative second lawsuit. Instead, Jackson
26 DeMarco's demurrer to the second lawsuit should be sustained.
27
28
W02-WEST:6MMMI \402609060.2
-9
TO PLAINTIFF'S COMPT .A TNT
In response to this demurrer, the SDPOA may contend Code of Civil
I
2 Procedure section 430.10(c) does not apply because the "same parties" are not involved in
3 both cases (i.e., the plaintiffs in the Ellis case are the members of the SDPOA, whereas the
4 plaintiffs in this action is the SDPOA itself). This is a distinction without a difference,
5 however, because the SDPOA and its members are in privity with one another. See
6 Anaheim Elem. Educ. Assln v. Board of Educ. (1986) 179 Cal.App.3d 1153 (1986) (noting
7 it is "settled" that a labor association is in privity with its members and can bring suit on
8 behalf of its members in an action founded on their employment). Just as one party is not
9 permitted to "split" its cause of action by pursuing relief for the same primary right in two
10 separate lawsuits, see Crowley v. Katleman (1994) 8 Ca1.4th 666,681, so too are privies
11 prohibited from splitting a cause of action. See Steigerwald, 144 Ca1.App.2d at 596.
12
13
V. 14
JACKSON DEMARCO'S DEMURRER SHOULD ALSO BE SUSTAINED 15
BECAUSE PLAINTIFF HAS NOT PLED, AND CANNOT PLEAD, FACTS IN 16
SUPPORT OF THE CAUSATION AND DAMAGES ELEMENTS OF A CLAIM 17
FOR LEGAL MALPRACTICE. 18
19 A. To Prevail on a Claim for Legal Malpractice, the Plaintiff Must Prove That the
20
Defendant Caused the Plaintiffs Harm.
21
22
The elements of a cause of action for professional negligence are: (1) the
23 duty of the professional to use such skill, prudence and diligence as other members of the
24 profession commonly possess and exercise; (2) breach of that duty; (3) a causal connection
25 between the negligent conduct and the resulting injury; and (4) actual loss or damage
26 resulting from the professional negligence. See Shopoff & Cavallo LLP v. Ryon (2008)
27 167 Ca1.AppAth 1489, 1509. A claim for breach of contract also requires the plaintiff to
28 prove that the defendant's breach caused the plaintiff to suffer damages. See St. Paul
-10
W02·WEST:6MMMl\402609060.2
TO PT A ThJTll7R'<;! rn1l./lUT A nTT
I Fire & Marine Ins. Co. v. American Dynasty Surplus Lines Ins. Co. (2002) 101
2 Ca1.App.4th 1038, 1060 ("An essential element of a claim for breach of contract are
3 damages resulting from the breach ... Causation of damages in contract cases requires that
4 the damages be proximately caused by the defendant's breach."). The same causation test
5 applies to both professional negligence and breach of contract claims. See Vaxiion
6 Therapeutics, Inc. v. Foley & Lardner LLP (S.D.Cai. 2008) 2008 WL 5147201, *3. 1
7
It is well-settled that if the attorney's negligent conduct does not cause
8
9 damage, it generates no cause of action. See Shop off, 167 Cal.App.4th at 1509. To show
10 damages proximately caused by the breach, the plaintiff must demonstrate that "but for"
11 the attorney's malpractice, it is more likely than not the plaintiff would have obtained a
12 more favorable result. See id.; see also Viner, 30 Ca1.4th at 1240-43. "Unless a party
13 suffers damage as a consequence of his attorney's negligence, he cannot establish a cause
14 of action for malpractice .. " Breach of duty causing only speculative harm is insufficient
15 to create such a cause of action .... [D]amages may not be based upon sheer speculation or
16 surmise, and the mere possibility or even probability that damage will result from wrongful
17 conduct does not render it actionable." Thompson v. Halvonik (1995) 36 Cal.App.4th 657,
18 661-62.
19
20
As the California Supreme Court made clear in the seminal Viner case, "the
21 crucial causation inquiry is what would have happened if the defendant attorney had not
22 been negligent. This is so because the very idea of causation necessarily involves
23 comparing historical events to a hypothetical alternative." Viner, 30 CaL 4th at 1242
24 (emphasis in original). Although the label of the test may differ from case to case, the rule
25 underlying the test is always the same: to prevail on a malpractice claim, the plaintiff must
26 ) The Plaintiffs caption their claim as one for "attorney malpractice,rt and thus it is not clear if they intend to pursue a negligence theory, a breach of contract theory, or both. 27
See Co.mplaint, p. 6. Regardless of whether Plaintiffs pursue a tort or contract claim, however, the same causation standard applies. 28
W02-WEST:6MMMI\402609060.2
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TO PLAINTIFF'S COMPLAINT
1 demonstrate that the attorney's negligence caused the plaintiff's harm. See Viner at 1240,
2 nA (noting that the causation inquiry is also sometimes described as the "case within the
3 case," or the "trial within the trial").
4
5 B. Causation in a Legal Malpractice Case Is Appropriately Treated as an Issue of
6
Law, Rather Than Fact, When the Underlying Litigation Was Decided Based
7
on a Question of Law.
8
The element of causation in a legal malpractice case is treated as an issue of
9
10 law which the underlying litigation was decided on a question of law. As one California
11 court has explained, "'no jury can reach its own judgment on the proper outcome of an
12 earlier case that hinged on an issue of law.'" Piscitelli v. Friedenberg (2001) 87
13 Cal.AppAth 953, 974, quoting with approval from Chocktoot v. Smith (Ore. 1977) 571
14 P.2d 1255, 1258; see also id. at 971 (explaining that "[i]n legal malpractice cases, whether
15 a court or jury decides the underlying case-within-a-case [turns on] whether the issues are
16 predominately questions of fact or law"). A leading malpractice treatise concurs with this
17 view. See Ronald E. Mallen and Jeffrey M. Smith, LEGAL MALPRACTICE, Fifth Edition,
18 VoL 5, § 33.11 (2000) (explaining that "if causation depends on a legal ruling, the issue
19 usually presents a question of law. For instance, whether an appeal should have succeeded
20 presents an issue oflaw.").
21
22 C. The Plaintiff Cannot Establish That Had Defendants 'Made A Different
23
Argument, The Plaintiff Would Have Obtained a More Favorable Outcome.
24
25
Plaintiff's causation allegation against the defendants is not merely tenuous,
26 it is non-existent. First, the Plaintiff alleges that it was adversely affected before the
27 lawsuit was filed and Jackson DeMarco and Mr. Malik were retained, when the City
28 implemented its last, best, final offer at the bargaining table, which had the effect of
W02-WEST:6MMMl \402609060.2
-12
TO PLAINTIFF'S COMPl .ATNT
1 reducing retirement health benefit. The defendants cannot be responsible for the City's
2 bargaining position, and the complaint concedes that Jackson DeMarco and Mr. Malik
3 were retained only later and in response to the City's reduction of the health benefits. See
4 Mueller Decl., Ex. A at.,-r 14.
5
Second, Plaintiff alleges that because Jackson DeMarco did not cite
6
7 unidentified facts or make unidentified arguments or cite unidentified precedent, Judge
8 Huff and the unanimous Ninth Circuit panel wrongly decided that the retirement health
9 benefits were not vested. See id., ~ 20. Yet both Judge Huff and the Ninth Circuit
10 thoroughly examined all California decisions and all pertinent legal principles in reaching
11 their decisions. Both recognized that there were two California appellate decisions - Cal.
12 League of City Employee Ass'ns v. Palos Verdes Library Dist. (1978) 87 Cal.App.3d 135,
13 and San Bernardino Pub. Employees Ass'n v. City of Fontana (1998) 67 Cal.AppAth 1215
14 - that had reached conflicting results as to whether longevity-based benefits such as
15 retirement health were or were not vested. After extensive analysis, both Judge Huff and
16 the unanimous Ninth Circuit panel decided that the San Bernardino case was the better
17 reasoned, and that the retirement health benefits were not vested. See Mueller Decl., ~~ 3
18 4, Exs. B, C.
19
20
Whether the retirement health benefits were vested was a contested issue of
21 law, the opposing parties in the underlying action were represented by very able counsel
22 (the law firms of Latham & Watkins and Seltzer Caplan McMahon Vitek), and the persons
23 deciding the contested legal issue were four accomplished judges. After considering the
24 law, those judges unanimously ruled that as a matter of law, the benefits were not vested.
25 Plaintiff cannot possibly satisfy its burden of proving by a preponderance of the evidence
26 that this result was the fault of the defendants, i.e., that had the defendants only done
27 something different, it is more likely than not that Judge Huff and three Ninth Circuit
28
-13
W02-WEST:6MMMl\402609060.2
TO PLAINTIFF'S COMPLATNT
1 judges would have ruled differently. See Shopoff, 167 Cal.App.4th at 1509; Viner, 30
2 Ca1.4th at 1240-43. That is pure speculation, and is a question oflaw for this Court.
3
4
In addition, the same fatal flaw arises because the Plaintiffs, and their present
5 attorney, have dismissed state law claims, and are attempting to dismiss appeals in the
6 Ninth Circuit relating to other claims, that could have, if prosecuted, precluded any claim
7 of malpractice. See Mueller Decl., ~ 8. By dismissing those claims, the Plaintiff has made
8 it impossible to demonstrate "but for" causation in this case. If the Plaintiff has suffered
9 any harm, it has been on account of its own actions that have nothing to do with Jackson
10 DeMarco.
11
12
Lastly, it is frivolous for Plaintiff to contend that the defendants should bear
13 responsibility for the City's decision to amend its Municipal Code and impose an $8,800
14 cap on annual retirement health benefits. See Mueller Dec!., ~~ 5-6, Exs. D, E. Jackson
15 DeMarco has no control over the City, and because of the City's own fmancial
16 predicament, the City had already decided to reduce the police officers' retirement health
17 benefits before the underlying lawsuit had even been filed.
18
19
VI. 20
CONCLUSION 21
22
For the foregoing reasons, Jackson DeMarco respectfully requests that the
23 Court sustain its demurrer to the Complaint without leave to amend. The SDPOA's claim
24 for legal malpractice is duplicative of the same claim for relief stated by the members of
25 the SDPOA in the Ellis case, and as a result an interlocutory judgment should be entered in
26 favor of Jackson DeMarco and Mr. Malik stating that no trial shall be had in this case until
27 the Ellis case has been concluded. See Code of Civ. Proc. § 597. In addition, Plaintiff
28
W02-WEST:6MMMl\402609060.2
-14
TO Pl .ATNT1FF'R [,()MPT .A ThlT
1 cannot satisfy the causation and damages elements of a malpractice claim, and as a result
2 their complaint fails to state a claim for relief.
3
4 DATED: May 3, 2010
5
6
7
By
GORY A.LONG
MAT EWW.HOLDER MATTHEW M. MUELLER Attorneys for Defendants JACKSON, DeMARCO, TIDUS & PECKENPAUGH, A LAW CORPORATION and MOHAMED ALIM AHMAD MALIK 8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
W02·WEST:6MMMl\402609060.2
-15
.T() Pl ,A lNTIl<'l<"~ rOMPT i1 NT
San Diego Police Officers Association v. Jackson, DeMarco, Tidus & Peckenpaugh, et al.
San Diego Superior Court Case No. 37-2010-00088794-CU-PN-CTL
1
PROOF OF SERVICE
2
STATE OF CALIFORNIA, COUNTY OF SAN DIEGO
I am employed in the County of San Diego; I am over the age of eighteen years and
not a party to the within entitled action; my business address is 12275 EI Camino Real,
4 Suite 200, San Diego, California 92130-2006.
3
On May 3, 2010, I served the following document(s) described as:
DEFENDANTS JACKSON, DEMARCO, TIDUS & PECKENPAUGH AND
6 MOHAMED ALIM AHMAD MALIKtS NOTICE OF DEMURRER AND
DEMURRER TO PLAINTIFFtS COMPLAINT; MEMORANDUM OF POINTS
7 AND AUTHORITIES IN SUPPORT on the interested party(ies) in this action by placing
true copies thereof enclosed in sealed envelopes and/or packages addressed as follows:
8
5
See Attached Service List
9
~
10
11
12
13 0
14
15
BY MAIL: I am "readily familiar" with the firm's practice of collection and
processing correspondence for mailing. Under that practice it would be deposited
with the U.S. postal service on that same day with postage thereon fully prepaid at
San Diego, California in the ordinary course of business. I am aware that on motion
of the party served, service is presumed invalid if postal cancellation date or postage
meter date is more than one day after date of deposit for mailing in affidavit.
BY OVERNIGHT DELIVERY: I served such envelope or package to be
delivered on the same day to an authorized courier or driver authorized by the
overnight service carrier to receive documents, in an envelope or package
designated by the overnight service carrier.
0
BY FACSIMILE: I served said document(s) to be transmitted by facsimile
pursuant to Rule 2.306 of the California Rules of Court. The telephone number of
the sending facsimile machine was 858-509-3691. The name(s) and facsimile
machine telephone number(s) of the person(s) served are set forth in the service list.
The sending facsimile machine (or the machine used to forward the facsimile)
issued a transmission report confirming that the transmission was complete and
without error. Pursuant to Rule 2.306(h)(4), a copy of that report is attached to this
declaration.
20 0
BY HAND DELIVERY: I caused such envelope(s) to be delivered by hand to the
office of the addressee(s).
16
17
18
19
21
~
STATE: I declare under penalty ofpeljury under the laws of the State of
California that the foregoing is true and correct.
0
FEDERAL: I declare that I am employed in the office of a member of the bar of
this Court at whose direction the service was made. I declare under penalty of
perjury under the laws of the United States of America that the foregoing is true and
correct.
22
23
24
25
Executed on May 3,2010, at San Diego, California.
26
27
L. Thomas
28
W02-WEST:6JLB 1\402628243.1
-1
F OF SERVTf:F

Jackson, DeMarco Demurrer to Complaint

Transcription

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