Preview
1 KENNY C. BROOKS (SBN 254842)
MICHAEL MCCARTHY (SBN 89588)
2 NEMECEK & COLE
A Professional Corporation
3 16255 Ventura Boulevard, Suite 300
Encino, California 91436-2300
4 Tel: (818) 788-9500 / Fax: (818) 501-0328
5 Attorneys for Defendants
ROGERS SHEFFIELD & CAMPBELL, LLP
6 and SHEILA PRICE (as Representative of the
Estate of Homer Sheffield)
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16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF SANTA BARBARA
TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328
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NEMECEK & COLE
A PROFESSIONAL CORPORATION
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NICOLE EMILY JORDAN, individually and as Case No.: 23CV02702
13 Successor Trustee and Beneficiary of THE Assigned to Hon. Colleen Sterne
BOROMIR AND VIRGINIA JORDAN
14 FAMILY TRUST, and as Beneficiary of and DEFENDANT SHEILA PRICE (AS
Successor-In-Interest to the ESTATE OF REPRESENTATIVE OF THE ESTATE
15 VIRGINIA JORDAN (DECEASED) OF HOMER SHEFFIELD’S REPLY IN
16 Plaintiff, SUPPORT OF ITS DEMURRER AND
MOTION TO STRIKE RE: PLAINTIFF’S
17 v. COMPLAINT
18 ROGERS SHEFFIELD & CAMPBELL, et al. Date: October 23, 2023
and DOES 1 to 20; inclusive, Time: 10:00 a.m.
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Dept: 5
Defendants.
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REPLY IN SUPORT OF DEMURRER AND MOTION TO STRIKE RE: PLAINTIFF’S COMPLAINT
3799468.1
1 I. NO OBJECTION TO PRICE REQUEST FOR JUDICIAL NOTICE
2 In support of its demurrer and motion to strike, Defendant Sheila Price (as representative of
3 the Estate of Homer Sheffield) (“Price”) submitted a Request for Judicial Notice (“the Price RJN.”)
4 The Price RJN requests that the Court take judicial notice of four documents appearing in the
5 records of the Santa Barbara County Superior Court (Case No. 21PR00040.) In the Oppositions,
6 Plaintiff Nicole Jordan does not object to the request. Accordingly, the Court should grant Price’s
7 unopposed request for judicial notice.
8 II. THE OPPOSITIONS CONFIRM THAT THE ACTION IS TIME-BARRED
16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300
9 In the demurrer, Price contends that the entire complaint is time-barred under the one-year
10 statute of limitations stated in Code of Civil Procedure § 340.6. The demurrer cites case law
TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328
11 demonstrating that §340.6 applies to actions against an attorney arising out of their performance of
NEMECEK & COLE
A PROFESSIONAL CORPORATION
12 professional services -- regardless of what the cause of action is called (i.e., breach of contract,
13 breach of fiduciary duty, etc.) The demurrer also demonstrates that delayed discovery cannot help
14 Nicole evade §340.6 because she filed a nearly identical pleading in probate court over a year before
15 filing the instant civil action against Price. (See Ex. C to Price RJN.) In the Opposition, Nicole
16 claims that §340.6 does not apply because she labeled her claims “breach of contract” and “breach
17 of fiduciary duty.” In making this argument, Nicole makes no attempt to engage with the case law
18 cited in the demurrer (which demonstrates that the label on a cause of action is irrelevant.) Nicole
19 also claims delayed discovery, but simply ignores the fact that she filed a nearly identical probate
20 pleading over a year before filing this civil action. Notably, Nicole does not dispute the manner in
21 which the demurrer characterizes for fraud claims -- i.e., that they are disguised legal malpractice
22 that simply conclude the negligence was done on purpose for no reason. Nicole’s opposition
23 confirms that her entire complaint is time-barred under §340.6.
24 III. NICOLE LACKS STANDING TO BRING CLAIMS ON BEHALF OF THE TRUST
25 The demurrer argues that Nicole cannot bring actions on behalf of the Trust because this
26 Court has already ruled that Watson (not Nicole) is the trustee. (See Ex. B to Price RJN.) In the
27 Opposition, Nicole concedes the point by admitting that she is seeking to be named trustee via a
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REPLY IN SUPORT OF DEMURRER AND MOTION TO STRIKE RE: PLAINTIFF’S COMPLAINT
3799468.1
1 pending appeal in probate court. Accordingly, all claims brought on behalf of the Trust should be
2 dismissed.
3 IV. NICOLE LACKS STANDING TO PURSUE HER PARENTS’ DAMAGES
4 The Demurrer argues that Nicole lacks standing to recover damages allegedly suffered by
5 the Jordan Parents (not herself). The demurrer notes that the last codicils of the Jordan Parents’
6 wills appointed Sheffield and Watson as the successor executors -- and Nicole never sought to be
7 named as their personal representative. In the Opposition, Nicole concedes the point by admitting
8 that she is seeking to be named her parents representative via a pending appeal in probate court. 1
16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300
9 Accordingly, all claims brought to recover damages purportedly suffered by the Jordan Parents
10 (which is all of the claims) should be dismissed.
TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328
11 V. PRICE OWED NO FIDUCIARY DUTIES TO NICOLE
NEMECEK & COLE
A PROFESSIONAL CORPORATION
12 In the demurrer, Price notes that it did not owe any fiduciary duties to Nicole because she
13 was never a client of Price. In the Opposition, it appears that Nicole does not appreciate (1) the
14 difference between fiduciary duties (which can never be owed to non-clients) and the ordinary duty
15 of care (which can sometimes be owed to non-clients in limited situations); or (2) that she cannot
16 bring causes of action based on fiduciary duties owed to the Jordan Parents (as opposed to duties
17 owed to Nicole.) 2 The law is clear -- attorneys only owe fiduciary duties to their clients. 3
18 VI. PRICE OWED NO DUTY OF DISCLOSURE DUTIES TO NICOLE
19 Nicole’s causes of action for constructive fraud (7th) and fraud by concealment (8th) are
20 predicated on an allegation that Price failed to disclose that it was communicating with Angela,
21 Jennifer, and other third parties. (Complaint at ¶¶269-284.) Of course, Price did not owe any duty
22 of disclosure to Nicole (a non-client third party.) The Opposition fails to present any cogent
23 explanation as to why the attorneys for Nicole’s parents (not Nicole herself) owed her any duty of
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In this section, Nicole also cites to a letter and apparently seeks to have the Court take judicial notice of the same. There
25 is no basis to take judicial notice of a letter -- and especially the truth of the contents stated therein.
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As discussed above, Nicole is not the personal representative of the Jordan Parents -- nor is she the trustee. Accordingly,
she can only bring claims on behalf of herself -- and she essentially has none.
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It would an obvious conflict for an estate planning attorney to owe fiduciary duties to both the settlors and the non-
28 client beneficiaries. If they owed fiduciary duties to non-client beneficiaries, the lawyer would have to terminate the
representation if they were ever asked to amend an estate plan to remove one of the beneficiaries.
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REPLY IN SUPORT OF DEMURRER AND MOTION TO STRIKE RE: PLAINTIFF’S COMPLAINT
3799468.1
1 disclosure. This goes equally for Nicole’s references to duties of confidentiality. Again, Nicole
2 fails to comprehend that she cannot simply brings claims that could only belong to the Jordan
3 Parents.
4 VII. PRICE OWED NO DUTY OF CARE TO NICOLE
5 In the estate planning context, the drafting attorney owes broad duties to the testator with
6 whom there is a direct attorney-client relationship. The drafting attorney also owes a limited duty
7 to the intended beneficiaries to draft the estate plan in a manner that effectuates the clear intent of
8 the testator. (Chang v. Lederman (2009) 172 Cal. App. 4th 67.) In this case, the intent of the Jordan
16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300
9 Parents is obviously not clear as that intent is the subject a massive dispute between the Jordan
10 Children. When the intent of the testator is not clear, the drafting attorney has no duty to the
TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328
11 beneficiaries. (Ibid.) It appears that Nicole is alleging that Price had a duty (to Nicole) to draft the
NEMECEK & COLE
A PROFESSIONAL CORPORATION
12 6th Amendment because the Jordan Parents made a request. Nicole presents no authority that
13 lawyers are the indentured servants of their clients. Price withdrew from the representation when
14 asked to draft the 6th Amendment -- and (according to Nicole) the Jordan Parents drafted the 6th
15 Amendment themselves. No duty. No causation. No damages.
16 VIII. THE FRAUD ARGUMENTS ARE UNOPPOSED
17 The demurrer contains detailed arguments on the elements of the fraud claim and how the
18 Complaint fails to appropriately allege the various elements. Notably, the demurrer notes that (once
19 again) Nicole appears to be alleging that the Jordan Parents relied on statements from Price -- not
20 that Nicole herself relied on any purported statements (nor would that make any sense.) In the
21 Opposition, Nicole fails to address any of the arguments made in the demurrer. She simply
22 concludes that the appropriate allegations were made. In essence, the arguments of the demurrer
23 are unopposed.
24 IX. THE MITIGATION ARGUMENT IS ESSENTIALLY UNOPPOSED
25 The demurrer notes that, after receiving the 120-Day Notice, Nicole had the opportunity to
26 bring the Sixth Amendment to the Court’s attention, but failed to do so -- which resulted in the Fifth
27 Amendment being deemed to the final amendment to the Trust. (See Ex. D to Price RJN.) The
28 demurrer argues that this was a failure to mitigate damages and fatal to Nicole’s entire action. The
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REPLY IN SUPORT OF DEMURRER AND MOTION TO STRIKE RE: PLAINTIFF’S COMPLAINT
3799468.1
1 Opposition essentially ignores this argument -- other than to point out that Nicole could not locate
2 an attorney to represent her at the time. Of course, Nicole does not provide any authority stating
3 that the duty to mitigate damages does not apply if someone cannot find a lawyer.
4 X. THERE IS NO ENTITLEMENT TO ATTORNEY’S FEES, EMOTIONAL
5 DISTRESS, OR PUNITIVE DAMAGES
6 No Attorney’s Fees: This is a private matter wherein Nicole is seeking to recover what she
7 believes is her rightful inheritance. As there is no potential benefit to the public, Nicole cannot
8 recover her attorney’s fees under Code of Civil Procedure §1021.5. The opposition contains no
16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300
9 authority to the contrary. Nicole’s efforts to obtain attorney’s fees under §1021.5 is demonstrative
10 of the absurd arguments she is willing to make in this lawsuit.
TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328
11 No Emotional Distress Damages: The law cited in the motion to strike is clear -- emotional
NEMECEK & COLE
A PROFESSIONAL CORPORATION
12 distress damages are not recoverable for legal malpractice causing economic injury. In this case,
13 Nicole is alleging economic injury. Accordingly, she cannot recover emotional distress damages.
14 Nothing cited in the Opposition impacts this black letter law.
15 No Punitive Damages: The punitive damage claim arises from allegations that Price was
16 provided incorrect information by Nicole’s siblings (and others) and acted on that information.
17 Such allegation are nowhere close to predicating a punitive damage claim. The Opposition makes
18 no cogent argument to the contrary.
19 XI. NO LEAVE TO AMEND SHOULD BE PERMITTED
20 No amendment can cure the numerous defects in the pleadings, including but not limited to
21 the fact that this matter is completely barred by the statute of limitations and Nicole lacks standings.
22 There is nothing Nicole can do to cure these issues because they are predicated on prior Court orders
23 that cannot be changed.
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REPLY IN SUPORT OF DEMURRER AND MOTION TO STRIKE RE: PLAINTIFF’S COMPLAINT
3799468.1
1 XII. CONCLUSION
2 Price respectfully submits that this demurrer should be sustained in its entirety and the
3 motion strike be granted without leave to amend.
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5 DATED: October 16, 2023 NEMECEK & COLE
6
7 By: Kenny Brooks
MICHAEL MCCARTHY
8 KENNY BROOKS
Attorneys for Defendants ROGERS
16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300
9 SHEFFIELD & CAMPBELL, LLP
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TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328
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NEMECEK & COLE
A PROFESSIONAL CORPORATION
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REPLY IN SUPORT OF DEMURRER AND MOTION TO STRIKE RE: PLAINTIFF’S COMPLAINT
3799468.1
I PITOOF OF SERVICE
2 STATE OF CALIFORNIA )
) SS
J COUNTY OF LOS ANGELES )
4 I am employed in the County of Los Angeles, State of Califbmia. I am over the age of I 8 and not
a party to the within action. My business address is 16255 Ventura Boulevard, Suite 300, Encino,
5 cA 91436-2300.
6 On October 16,2023, i sen'ed the foregoing document described as: DEFENDANT SHEILA
PRICE (AS REPRESENTATIVE OF THE ESTATE OF HOMER SHEFFIELD'S REPLY
7 IN SUPPORT OF ITS DEMURRER AND MOTION TO STRIKE RE: PLAINTIFF'S
COMPLAINT, upon the interested parties in this action in sealed envelopes addressed as follows
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Tamineh Roshanian, Esq. Attomeys foL Plaintiff
9 ROSI{ANIAN PAYMAN, PC
30721 Russell Ranch Road, Suite 140
l0 Westlake Village, CA 91362
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PROOF OF SERVICI]
1r59066 I
Preview
1 KENNY C. BROOKS (SBN 254842) MICHAEL MCCARTHY (SBN 89588) 2 NEMECEK & COLE A Professional Corporation 3 16255 Ventura Boulevard, Suite 300 Encino, California 91436-2300 4 Tel: (818) 788-9500 / Fax: (818) 501-0328 5 Attorneys for Defendants ROGERS SHEFFIELD & CAMPBELL, LLP 6 and SHEILA PRICE (as Representative of the Estate of Homer Sheffield) 7 8 16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF SANTA BARBARA TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328 11 NEMECEK & COLE A PROFESSIONAL CORPORATION 12 NICOLE EMILY JORDAN, individually and as Case No.: 23CV02702 13 Successor Trustee and Beneficiary of THE Assigned to Hon. Colleen Sterne BOROMIR AND VIRGINIA JORDAN 14 FAMILY TRUST, and as Beneficiary of and DEFENDANT SHEILA PRICE (AS Successor-In-Interest to the ESTATE OF REPRESENTATIVE OF THE ESTATE 15 VIRGINIA JORDAN (DECEASED) OF HOMER SHEFFIELD’S REPLY IN 16 Plaintiff, SUPPORT OF ITS DEMURRER AND MOTION TO STRIKE RE: PLAINTIFF’S 17 v. COMPLAINT 18 ROGERS SHEFFIELD & CAMPBELL, et al. Date: October 23, 2023 and DOES 1 to 20; inclusive, Time: 10:00 a.m. 19 Dept: 5 Defendants. 20 21 22 23 24 25 26 27 28 1 REPLY IN SUPORT OF DEMURRER AND MOTION TO STRIKE RE: PLAINTIFF’S COMPLAINT 3799468.1 1 I. NO OBJECTION TO PRICE REQUEST FOR JUDICIAL NOTICE 2 In support of its demurrer and motion to strike, Defendant Sheila Price (as representative of 3 the Estate of Homer Sheffield) (“Price”) submitted a Request for Judicial Notice (“the Price RJN.”) 4 The Price RJN requests that the Court take judicial notice of four documents appearing in the 5 records of the Santa Barbara County Superior Court (Case No. 21PR00040.) In the Oppositions, 6 Plaintiff Nicole Jordan does not object to the request. Accordingly, the Court should grant Price’s 7 unopposed request for judicial notice. 8 II. THE OPPOSITIONS CONFIRM THAT THE ACTION IS TIME-BARRED 16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300 9 In the demurrer, Price contends that the entire complaint is time-barred under the one-year 10 statute of limitations stated in Code of Civil Procedure § 340.6. The demurrer cites case law TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328 11 demonstrating that §340.6 applies to actions against an attorney arising out of their performance of NEMECEK & COLE A PROFESSIONAL CORPORATION 12 professional services -- regardless of what the cause of action is called (i.e., breach of contract, 13 breach of fiduciary duty, etc.) The demurrer also demonstrates that delayed discovery cannot help 14 Nicole evade §340.6 because she filed a nearly identical pleading in probate court over a year before 15 filing the instant civil action against Price. (See Ex. C to Price RJN.) In the Opposition, Nicole 16 claims that §340.6 does not apply because she labeled her claims “breach of contract” and “breach 17 of fiduciary duty.” In making this argument, Nicole makes no attempt to engage with the case law 18 cited in the demurrer (which demonstrates that the label on a cause of action is irrelevant.) Nicole 19 also claims delayed discovery, but simply ignores the fact that she filed a nearly identical probate 20 pleading over a year before filing this civil action. Notably, Nicole does not dispute the manner in 21 which the demurrer characterizes for fraud claims -- i.e., that they are disguised legal malpractice 22 that simply conclude the negligence was done on purpose for no reason. Nicole’s opposition 23 confirms that her entire complaint is time-barred under §340.6. 24 III. NICOLE LACKS STANDING TO BRING CLAIMS ON BEHALF OF THE TRUST 25 The demurrer argues that Nicole cannot bring actions on behalf of the Trust because this 26 Court has already ruled that Watson (not Nicole) is the trustee. (See Ex. B to Price RJN.) In the 27 Opposition, Nicole concedes the point by admitting that she is seeking to be named trustee via a 28 2 REPLY IN SUPORT OF DEMURRER AND MOTION TO STRIKE RE: PLAINTIFF’S COMPLAINT 3799468.1 1 pending appeal in probate court. Accordingly, all claims brought on behalf of the Trust should be 2 dismissed. 3 IV. NICOLE LACKS STANDING TO PURSUE HER PARENTS’ DAMAGES 4 The Demurrer argues that Nicole lacks standing to recover damages allegedly suffered by 5 the Jordan Parents (not herself). The demurrer notes that the last codicils of the Jordan Parents’ 6 wills appointed Sheffield and Watson as the successor executors -- and Nicole never sought to be 7 named as their personal representative. In the Opposition, Nicole concedes the point by admitting 8 that she is seeking to be named her parents representative via a pending appeal in probate court. 1 16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300 9 Accordingly, all claims brought to recover damages purportedly suffered by the Jordan Parents 10 (which is all of the claims) should be dismissed. TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328 11 V. PRICE OWED NO FIDUCIARY DUTIES TO NICOLE NEMECEK & COLE A PROFESSIONAL CORPORATION 12 In the demurrer, Price notes that it did not owe any fiduciary duties to Nicole because she 13 was never a client of Price. In the Opposition, it appears that Nicole does not appreciate (1) the 14 difference between fiduciary duties (which can never be owed to non-clients) and the ordinary duty 15 of care (which can sometimes be owed to non-clients in limited situations); or (2) that she cannot 16 bring causes of action based on fiduciary duties owed to the Jordan Parents (as opposed to duties 17 owed to Nicole.) 2 The law is clear -- attorneys only owe fiduciary duties to their clients. 3 18 VI. PRICE OWED NO DUTY OF DISCLOSURE DUTIES TO NICOLE 19 Nicole’s causes of action for constructive fraud (7th) and fraud by concealment (8th) are 20 predicated on an allegation that Price failed to disclose that it was communicating with Angela, 21 Jennifer, and other third parties. (Complaint at ¶¶269-284.) Of course, Price did not owe any duty 22 of disclosure to Nicole (a non-client third party.) The Opposition fails to present any cogent 23 explanation as to why the attorneys for Nicole’s parents (not Nicole herself) owed her any duty of 24 1 In this section, Nicole also cites to a letter and apparently seeks to have the Court take judicial notice of the same. There 25 is no basis to take judicial notice of a letter -- and especially the truth of the contents stated therein. 26 2 As discussed above, Nicole is not the personal representative of the Jordan Parents -- nor is she the trustee. Accordingly, she can only bring claims on behalf of herself -- and she essentially has none. 27 3 It would an obvious conflict for an estate planning attorney to owe fiduciary duties to both the settlors and the non- 28 client beneficiaries. If they owed fiduciary duties to non-client beneficiaries, the lawyer would have to terminate the representation if they were ever asked to amend an estate plan to remove one of the beneficiaries. 3 REPLY IN SUPORT OF DEMURRER AND MOTION TO STRIKE RE: PLAINTIFF’S COMPLAINT 3799468.1 1 disclosure. This goes equally for Nicole’s references to duties of confidentiality. Again, Nicole 2 fails to comprehend that she cannot simply brings claims that could only belong to the Jordan 3 Parents. 4 VII. PRICE OWED NO DUTY OF CARE TO NICOLE 5 In the estate planning context, the drafting attorney owes broad duties to the testator with 6 whom there is a direct attorney-client relationship. The drafting attorney also owes a limited duty 7 to the intended beneficiaries to draft the estate plan in a manner that effectuates the clear intent of 8 the testator. (Chang v. Lederman (2009) 172 Cal. App. 4th 67.) In this case, the intent of the Jordan 16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300 9 Parents is obviously not clear as that intent is the subject a massive dispute between the Jordan 10 Children. When the intent of the testator is not clear, the drafting attorney has no duty to the TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328 11 beneficiaries. (Ibid.) It appears that Nicole is alleging that Price had a duty (to Nicole) to draft the NEMECEK & COLE A PROFESSIONAL CORPORATION 12 6th Amendment because the Jordan Parents made a request. Nicole presents no authority that 13 lawyers are the indentured servants of their clients. Price withdrew from the representation when 14 asked to draft the 6th Amendment -- and (according to Nicole) the Jordan Parents drafted the 6th 15 Amendment themselves. No duty. No causation. No damages. 16 VIII. THE FRAUD ARGUMENTS ARE UNOPPOSED 17 The demurrer contains detailed arguments on the elements of the fraud claim and how the 18 Complaint fails to appropriately allege the various elements. Notably, the demurrer notes that (once 19 again) Nicole appears to be alleging that the Jordan Parents relied on statements from Price -- not 20 that Nicole herself relied on any purported statements (nor would that make any sense.) In the 21 Opposition, Nicole fails to address any of the arguments made in the demurrer. She simply 22 concludes that the appropriate allegations were made. In essence, the arguments of the demurrer 23 are unopposed. 24 IX. THE MITIGATION ARGUMENT IS ESSENTIALLY UNOPPOSED 25 The demurrer notes that, after receiving the 120-Day Notice, Nicole had the opportunity to 26 bring the Sixth Amendment to the Court’s attention, but failed to do so -- which resulted in the Fifth 27 Amendment being deemed to the final amendment to the Trust. (See Ex. D to Price RJN.) The 28 demurrer argues that this was a failure to mitigate damages and fatal to Nicole’s entire action. The 4 REPLY IN SUPORT OF DEMURRER AND MOTION TO STRIKE RE: PLAINTIFF’S COMPLAINT 3799468.1 1 Opposition essentially ignores this argument -- other than to point out that Nicole could not locate 2 an attorney to represent her at the time. Of course, Nicole does not provide any authority stating 3 that the duty to mitigate damages does not apply if someone cannot find a lawyer. 4 X. THERE IS NO ENTITLEMENT TO ATTORNEY’S FEES, EMOTIONAL 5 DISTRESS, OR PUNITIVE DAMAGES 6 No Attorney’s Fees: This is a private matter wherein Nicole is seeking to recover what she 7 believes is her rightful inheritance. As there is no potential benefit to the public, Nicole cannot 8 recover her attorney’s fees under Code of Civil Procedure §1021.5. The opposition contains no 16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300 9 authority to the contrary. Nicole’s efforts to obtain attorney’s fees under §1021.5 is demonstrative 10 of the absurd arguments she is willing to make in this lawsuit. TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328 11 No Emotional Distress Damages: The law cited in the motion to strike is clear -- emotional NEMECEK & COLE A PROFESSIONAL CORPORATION 12 distress damages are not recoverable for legal malpractice causing economic injury. In this case, 13 Nicole is alleging economic injury. Accordingly, she cannot recover emotional distress damages. 14 Nothing cited in the Opposition impacts this black letter law. 15 No Punitive Damages: The punitive damage claim arises from allegations that Price was 16 provided incorrect information by Nicole’s siblings (and others) and acted on that information. 17 Such allegation are nowhere close to predicating a punitive damage claim. The Opposition makes 18 no cogent argument to the contrary. 19 XI. NO LEAVE TO AMEND SHOULD BE PERMITTED 20 No amendment can cure the numerous defects in the pleadings, including but not limited to 21 the fact that this matter is completely barred by the statute of limitations and Nicole lacks standings. 22 There is nothing Nicole can do to cure these issues because they are predicated on prior Court orders 23 that cannot be changed. 24 /// 25 /// 26 /// 27 /// 28 /// 5 REPLY IN SUPORT OF DEMURRER AND MOTION TO STRIKE RE: PLAINTIFF’S COMPLAINT 3799468.1 1 XII. CONCLUSION 2 Price respectfully submits that this demurrer should be sustained in its entirety and the 3 motion strike be granted without leave to amend. 4 5 DATED: October 16, 2023 NEMECEK & COLE 6 7 By: Kenny Brooks MICHAEL MCCARTHY 8 KENNY BROOKS Attorneys for Defendants ROGERS 16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300 9 SHEFFIELD & CAMPBELL, LLP 10 TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328 11 NEMECEK & COLE A PROFESSIONAL CORPORATION 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 REPLY IN SUPORT OF DEMURRER AND MOTION TO STRIKE RE: PLAINTIFF’S COMPLAINT 3799468.1 I PITOOF OF SERVICE 2 STATE OF CALIFORNIA ) ) SS J COUNTY OF LOS ANGELES ) 4 I am employed in the County of Los Angeles, State of Califbmia. I am over the age of I 8 and not a party to the within action. My business address is 16255 Ventura Boulevard, Suite 300, Encino, 5 cA 91436-2300. 6 On October 16,2023, i sen'ed the foregoing document described as: DEFENDANT SHEILA PRICE (AS REPRESENTATIVE OF THE ESTATE OF HOMER SHEFFIELD'S REPLY 7 IN SUPPORT OF ITS DEMURRER AND MOTION TO STRIKE RE: PLAINTIFF'S COMPLAINT, upon the interested parties in this action in sealed envelopes addressed as follows 8 Tamineh Roshanian, Esq. Attomeys foL Plaintiff 9 ROSI{ANIAN PAYMAN, PC 30721 Russell Ranch Road, Suite 140 l0 Westlake Village, CA 91362 13 €H:! "6r XiIs 14 9.6 d,9 l5 69=E 16 A<=4 c0t 17 z =t 18 I 19 20 21 22 23 24 25 26 27 28 2 PROOF OF SERVICI] 1r59066 I