Demurrer
obtain judgment in the action; and (3) the nature and amount of costs and attorney fees defendant has incurred and expects to incur in the action. (Code Civ. Proc., § 1030, subd. (b).)
While it is undisputed Plaintiff is a nonresident, Defendants have failed to establish reasonable probability of obtaining a judgment in the action. The moving party is not required to show there was no possibility that the plaintiff could win at trial, but only that it is “reasonably possible” that the defendant will win. (Baltayan v. Estate of Getemyan (2001) 90 Cal. App. 4th 1427, 1432.) Evidence needed for an undertaking is less than that needed for summary judgment or even a special motion to strike; rather, to satisfy the requirements of section 1030, defendant must produce sufficient evidence to demonstrate they have a reasonable possibility of winning, but no more. (Id. at 1442.)
Here, Defendants produced the declaration of their expert, who opines that Dr. Bell met the applicable standard of care during his evaluation, treatment, surgical care and postoperative management relating to Plaintiff’s maxillofacial hardware removal surgery on May 24, 2024. (Ozaki Dec. ¶¶ 8-19.) This evidence shows it is reasonably possible that Defendants may prevail on Plaintiff’s fifth cause of action for professional negligence only. (First Amended Complaint (“FAC”) ¶¶ 50-53.)
However, Defendants produced no evidence or argument on Plaintiff’s four other causes of action for breach of contract, breach of implied covenant of good faith and fair dealing, unjust enrichment and fraud – all of which relate to the orthognathic surgery scheduled for June 27, 2024, but which Defendants allegedly cancelled and failed to return the $80,000 prepaid by Plaintiff. (FAC ¶¶ 33, 38, 42, 45.) As such, Defendants have failed to show reasonable possibility that they “will obtain judgment in the action or special proceeding.” (Code of Civ. Proc. § 1030, subd. (b)[emphasis added].) Defendants having failed to meet their moving burden, the motion is DENIED.
Counsel for Plaintiff shall provide notice of this ruling. 5 Vavrinyuk vs. Defendants Michael John Khouri and Khouri Law Firm APC Khouri (“Defendants”) Demurrer is SUSTAINED, with 20 days leave to amend.
Defendants demur to the first cause of action for legal malpractice in plaintiff Arthur Vavrinyuk’s (“Plaintiff”) Second Amended Complaint (“SAC”) based upon lack of sufficient facts. (Civ. Proc. Code § 430.10(e).)
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“The elements of a cause of action in tort for professional negligence are: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.” (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal. App. 4th 820, 833.)
On 01/11/24, Plaintiff alleges he retained and paid Defendants $6,000, but was never provided with a written fee agreement as required under Bus. & Prof. Code § 6148. (SAC ¶¶ 6-8.) Defendants were to prepare a writ of administrative mandate challenging the ruling of the Board of Registered Nursing (“Nursing Board”), with writ deadline being 01/20/24. (SAC ¶ 9.) Plaintiff believed the Nursing Board’s attempted service of the underlying Accusation and Default Decision were improper despite Plaintiff’s attempts to change his address. (SAC ¶ 10.)
On 01/16/24, Defendants confirmed by email they would file a Writ of Administrative Mandate on Plaintiff’s behalf. (SAC ¶¶ 11,16.) Plaintiff repeatedly asked Defendants to act, but Defendants failed to file the writ or act before the deadline. On 01/26/24, Plaintiff demanded return of his retainer, to which Defendants stated by email they would refund and terminate the attorney-client relationship. Also on 01/26/24, Plaintiff discovered Defendants malpractice for failure to file the writ in within the deadline. (SAC ¶ 12.) Plaintiff subsequently filed a petition for ordinary mandate, which was denied as a petition for administrative mandate was Plaintiff’s exclusive remedy. (SAC ¶ 13.) Plaintiff was unable to regain his nursing license or work for over three years which caused financial and emotional damages.
Plaintiff’s allegation regarding Defendant needing to file an administrative writ of mandate, as opposed to a traditional writ of mandate, is legally correct. Code of Civil procedure § 1094.5, subdivision (a) provides that administrative mandamus is the proper vehicle for court review where inquiry is to be made “into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer . . . .”
In contrast, § 1085, subd. (a) provides that ordinary mandamus lies “to compel the performance of an act which the law specially enjoins, . . . or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled . . . .” In other words, ordinary mandamus lies where the challenged action did not involve a legal exercise of discretion, but was one of ministerial duty.
The argument that decisions of the Nursing Board may be challenged by ordinary mandate under § 1085 was squarely rejected in Morton v. Bd. of Registered Nursing (1991) 235 Cal.App.3d 1560. In Morton, a nurse asserted her writ petition was not barred by the 30 day deadline applicable to administrative mandamus, because the basis of her writ was that the discipline imposed against her was illegal, not that the Nursing Board’s decision was an abuse of its discretion. Thus, she argued the Nursing Board violated a mandatory, ministerial duty under the law to not issue the specific discipline imposed. Id. at p. 1564. "
The Court of Appeal in Morton rejected this argument, observing: “But simply calling a goose a duck will not make it quack. Traditional mandate may apply to review an agency's action if that action is compelled by law and does not involve a factual determination by the agency.6 Under that circumstance, “[r]evocation ... constitute[s] a ministerial action by the board rather than quasi judicial action.” Id. at p. 1566. The court, in footnote 6, noted:
“In some occupations, for example, the Legislature requires automatic license revocation by the governing board if the holder is convicted of a criminal offense. A certificated school teacher accused of “immoral or unprofessional conduct or evident unfitness for service ...” is entitled to a hearing on the charges before the county board of education. Discipline may then be imposed by the Commission for Teacher Preparation and Licensing. (Educ.Code, § 44422.) But if a teacher is convicted of specified sex or narcotics offenses, punishment by the Commission for Teacher Preparation and Licensing is automatic and mandatory. (Educ.Code, § 44425.) There, the commission has no discretion to refuse to revoke the credential of a convicted teacher, and revocation occurs without a hearing. Action by the commission in the former case is quasijudicial; in the latter it is ministerial.”
Thus, where license revocation is automatic under the law (viz., through a criminal conviction), the action of a licensing board is ministerial and reviewable by ordinary mandamus. But where license revocation is not mandatory, such decision is reviewable by administrative mandamus.
Defendants contend that because a default was taken and no hearing held, the decision is reviewable by ordinary mandamus. But even though default may obviate the need for a hearing, the Board of Nursing still exercises its discretion in formulating a penalty. Specifically, Business and Professions Code § 2759 provides:
“The [Nursing Board] shall discipline the holder of any license, whose default has been entered . . . by any of the following methods: (a) Suspending judgment. (b) Placing upon them probation. (c) Suspending their right to practice nursing for a period not exceeding one year. (d) Revoking their license. (e) Taking other action in relation to disciplining them as the board in its discretion may deem proper.” (Emphasis added.)
That Plaintiff is challenging the Nursing Board’s ruling in part on procedural grounds does not change the equation. § 1094.5, subdivision (b), prescribes the scope of administrative mandamus thus:
“The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the
respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.”
Accordingly, Plaintiff’s allegations regarding Defendants’ failure to timely file a writ of administrative mandamus within the applicable statute of limitations is sufficient to demonstrate a failure to perform legal services competently.
As for causation, the SAC alleges: “The administrative record, when last obtained by Plaintiff, does not contain evidence that the Accusation was served at all . . . .” The lack of evidence of service may support a finding that a court entertaining a writ of administrative mandamus would have granted relief on that basis. This allegation is sufficient to demonstrate causation.
As for damages, Plaintiff makes two key arguments. First, he notes “there is a serous issue about whether the Accusation states a disciplinary offence,” asserting that a domestic violence incident does not fall within “Unprofessional Conduct,” as that term is defined in Business & Professions Code §§2761(a) and 2762.
Second, he asserts that no charges were filed against him, and the that the minutes from Placer County Superior Court reflect that a after a hearing, he was “exonerated.” He further asserts that the incident was an argument that escalated into mutual pushing with no serious injuries.
It is unclear if evidence in the administrative record included his alleged “exoneration” or his version of the story recited in the opposition. If there is exculpatory evidence Plaintiff could have presented to the Nursing Board beyond what the board had in its possession, Defendants’ alleged malpractice deprived him of the opportunity to present that evidence upon a remand by the superior court. A jury could consider this additional evidence and determine that had the Nursing Board been presented with this evidence on remand, it would have imposed no or lesser punishment.
Plaintiff should be allowed leave to amend to include allegations regarding damages, including the matters addressed in Plaintiff’s arguments made in his opposition as noted above.
The demurrer to the SAC is sustained with one final leave to amend.
The Court orders the clerk to give notice. 6 Ruffin v. OC O/C Dental Corp., Inc. 7 The Learning Before the Court at present are proceedings in three related cases, Light as follows: Foundation, Inc. v. (1) Case number 30-2026-01565433 (The Learning Light Sutcliffe Foundation, Inc., et al vs. Sutcliffe, et al.) (the “Sutcliffe Action”);