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LAWRENCE D. MILLER, SBN 77448
LAW OFFICE OF LAWRENCE D. MILLER
Post Office Box 6107
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San Mateo, CA 94403 Supe cotpiscer
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Telephone: (650) 592-9151 MAR 04 2020
Imiller@ldmlawyer.com
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Jake Chatter
Attorney for Defendant, Robin Calder Ser
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Officer & Clerk
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF PLACER
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10 TODD HENRY JARVIS, Case No. S-CV-0039929
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Plaintiff, MEMORANDUM OF POINTS AND
12 AUTHORITIES IN SUPPORT OF
V. MOTION FOR JUDGMENT ON THE
13 PLEADINGS AND IN THE
ROBIN ELIZABETH CALDER etc., ALTERNATIVE FOR AN ORDER
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BIFURCATING TRIAL
15 Defendant.
Date: March 27, 2020
16 Time: 8:30
Dept: 31
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Complaint Filed: August 23, 2017
18 Trial Date: April 27, 2020
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Defendant submits the following points and authorities in support of her motion for judgment on
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the pleadings without leave to amend and, in the alternative, if the motion is denied or leave to amend
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the Complaint is granted, for an order the trialof the issue of whether an attorney-client relationship
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existed between Plaintiff and Defendant prior to August 12, 2004 precede the trial of any other issue or
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any part thereof in the case.
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I. INTRODUCTION
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A. The Complaint is Unverified.
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The Complaint includes the Third Cause of Action to quiet titleto specific real property but is
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unverified. (Defendant’s Request for Judicial Notice.) A complaint to quiet titlemust be verified, and if
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MEMORANDUM OF POINTS AND AUTHORITIES
not verified is subject to a judgment in favor of the Defendant.
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B. The Complaint Alleges an Attorney-Client Relationship which Defendant Denies. A
Determination that an Attorney-Client Relationship Did Not Exist Will Eliminate the
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Necessity of Further Trial and in the Alternative Substantially Reduce the Issues to be
Tried.
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The Complaint consists of seven causes of action, all of which rely in whole or in part on the
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existence of an attorney-client relationship between the Plaintiff and the Defendant prior to the purchase
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by Plaintiff and Defendant of the property at 1869 Park Avenue, San Jose, California (hereafter “the
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property”).
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The property was purchased in the names of Plaintiff and Defendant, as joint tenants. The deed
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to the property was recorded on August 12, 2004. (Defendant’s Request for Judicial Notice.)
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If the Court determines that an attorney-client relationship did not exist, then all,and ifnot all,
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then most of the remaining issues will be eliminated. To conserve judicial resources and to save the
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parties’ time and expense the issue of whether or not an attorney-client relationship existed between the
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Plaintiff and the Defendant ought to be bifurcated and tried first.
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Il. APPLICABLE LAW
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A. A Complaint to Quiet Title Must be Verified. Judgment Ought to be Entered for the
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Defendant to an Unverified Complaint to Quiet Title.
A complaint which alleges a cause of action to quiet titlemust be verified. (Code of Civil
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Procedure, § 761.020.) Plaintiff's Third Cause of Action, entitled “Quiet Title” alleges, in pertinent part:
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“Plaintiff is the sole and true owner of that real property commonly known as
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1869 Park Ave., San Jose, CA 95126 and described more fully in paragraph 10 of this
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Complaint, such property being the “Subject Property.”
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Plaintiff's request for relief (the prayer the Complaint) seeks at page 15, line 22 of the
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Complaint:
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“1. For an order quieting titlein the subject property in the name of plaintiff Todd
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Henry Jarvis.”
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A complaint which seeks to quiet title to real property that is unverified is subject to a motion for
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a judgment on the pleadings. “Where the complaint must be verified and isnot, itmay be stricken on
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To Comply., 4 Witkin, Cal. Proc. 5th Plead § 468 (2008)).
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motion.” (6. [§ 468]Effect of Failure
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In Hearst v. Hart the defendant filed an unverified answer to a verified complaint. The Supreme
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MEMORANDUM OF POINTS AND AUTHORITIES
Court, quoting from McCullough v. Clark, 41 Cal. 298, stated:
In McCullough v. Clark, 41 Cal. 298, itis said, ‘Ifthe answer of the defendant was not
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properly verified, the plaintiff should have moved in the court below either to strike out
the answer, or for judgment as for want of an answer.’
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(Hearst v. Hart (1900) 128 Cal. 327, 328.)
A motion for judgment on the pleadings may be filed at any time, including during trial. The
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Court may permit a motion for judgment on the pleadings to be heard later than 30 days after the date
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the case was initially set for trial. (Code of Civil Procedure, § 438(e).)
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A motion for judgment on the pleadings must be made before a pretrial conference order
is entered or at least 30 days before the trialdate, whichever is later, unless ajudge
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otherwise permits. CCP § 438(e). The statute does not impose a “good cause”
requirement for a later filing or specify any limitations on ajudge's power to permit a
10 later filing. Burnett vChimney Sweep (2004) 123 CA4th 1057, 1063, 20 CR3d 562.
11 A judge may permit a motion for judgment on the pleadings to be made at any time
before, or even during,trial. Stoops v Abbassi (2002) 100 CA4th 644, 650, 122 CR2d
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747. See Noble v Draper (2008) 160 CA4th 1, 15-16, 73 CR3d 3 (judge properly granted
defendants' motion for judgment on the pleadings made on first day of trial with respect
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to one cause of action for which plaintiffs had no evidence, as their attorney
14 acknowledged). (Emphasis added.)
15 (1. [§ 12.153]In General:, Cal. Judges Benchbook Civ. Proc. Before Trial § 12.153.)
The Court in Stoops v. Abbassi, cited by the California Judges Benchbook, supra, stated:
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17 “A motion for judgment on the pleadings may be made at any time either prior to the trial
or at the trialitself. [Citation.]” (Jon Equipment Corp. v. Nelson (1980) 110 Cal.App.3d
18 868, 877, 168 Cal.Rptr. 361.)
19 (Stoops v.Abbassi (2002) 100 Cal.App.4th 644, 650, as modified (Aug. 7, 2002).)
Code of Civil Procedure, § 761.020 provides, in pertinent part: “The complaint shall be
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verified and shall include all of the following: ....” The Complaint is required to be verified
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pursuant to Code of Civil Procedure, § 761.020. The Complaint, like the answer in Hearst v Hart, supra,
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128 Cal. at p. 328, isnot verified and is therefore subject to this motion for judgment on the pleadings.
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Subject to the Court’s discretion to permit the hearing on the motion for judgment on the pleadings and
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the Court’s discretion to allow Plaintiff to file an amended complaint, judgment ought to be entered in
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favor of the Defendant.
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If the Court grants Plaintiff the opportunity to file an amended verified complaint, Code of Civil
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Procedure, § 761.020 provides, in pertinent part: The complaint shall be verified . ..”, (Emphasis
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MEMORANDUM OF POINTS AND AUTHORITIES
added.) Thus, a complaint which includes a cause of action to quiet titlemust be verified. Plaintiff's
counsel’s offer during the meet and confer process to verify only the Third Cause of Action would not
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comply with Code of Civil Procedure, § 761.020.
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B. Plaintiff’s Complaint Relies on, and the Defendant Denies, an Alleged Attorney-
client Relationship Existed Between the Plaintiff and the Defendant. If Defendant’s Motion
for Judgment on the Pleadings is Denied, in Whole or in Part, or if Plaintiff isallowed to
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Amend the Complaint, then Bifurcation of the Issue of the Whether an Attorney-Client
Relationship Existed Between the Plaintiff and Defendant Will Conserve Judicial
Resources and Save the Parties Unnecessary Expense.
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The court may, when the convenience of witnesses, the ends of justice, or the economy
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and efficiency of handling the litigation would be promoted thereby, on motion of a
party, after notice and hearing, make an order, no later than the close of pretrial
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conference in cases in which such pretrial conference is to be held, or, in other cases, no
later than 30 days before the trial date, that the trialof any issue or any part thereof shall
10 precede the trialof any other issue or any part thereof in the case, except for special
defenses which may be tried first pursuant to Sections 597 and 597.5....
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(Code Civ. Proc., § 598.)
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An early determination of the existence or nonexistence of an attorney-client relationship
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between Plaintiff and Defendant at the time transactions that are the subject of this action took place
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will, if an attorney-client relationship is found not to have existed, will likely result in a termination of
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this action. At a minimum, a finding that an attorney-client relationship did not exist will narrow the
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issues thereby precluding evidence of the alleged damages arising from the alleged attorney-client
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relationship, and thereby conserving judicial resources and saving the parties time and expense.
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The Complaint alleges:
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That Defendant was at all times alleged in the complaint a practicing attorney licensed to
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practice law in the state of California. (Complaint 1:23-25.)
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That Plaintiff retained Defendant in early 2000s” (Complaint 2:13.)
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Defendant provided Plaintiff with legal services and that Defendant violated her professional and
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ethical duties. (Complaint 2:13-26.)
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That during 2004, as part of Defendant’s legal representation Defendant recommended Plaintiff
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sell Plaintiff's Houston, Texas property and invest in property in Silicon Valley. (Complaint 3:7-10.)
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On or around August 12, 2004, Plaintiff purchased the Subject Property. (Complaint 4:3.) The
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subject property was defined as the property commonly known as 1869 Park Avenue, San Jose,
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MEMORANDUM OF POINTS AND AUTHORITIES
California 95126.” (Complaint 3:16.)
That Defendant created conflicts of interest that required proper disclosures. (Complaint 5:4-28,
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6:26-27; 7:2-6.)
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The First Cause of Action for Breach of Fiduciary Duties relies on the alleged attorney-client
relationship between Plaintiff and Defendant and Defendant’s alleged conflicts of interest, failure to
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make proper disclosures and breach of her professional and ethical duties. (Complaint 7:10-8:3.)
The Second Cause of Action alleges Unfair Business Practices and relies on the alleged attorney-
client relationship between Plaintiff and Defendant. Plaintiff alleges Defendant violated then California
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Rules of Conduct, Rules 3-310, 3-500, 3-700 (subsequently renumbered) and B&P § 6068(m) “and
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10 other applicable code sections and law”. (Complaint 8:12-13; 8:17-9:6.)
ll The Third Cause of Action to Quiet Title relies on the alleged attorney-client relationship
12 between Plaintiff and Defendant. (Complaint 9:22-23; 10:10-20.)
13 The Fourth Cause of Action for Declaratory Relief relies on the alleged attorney-client
14 relationship between Plaintiff and Defendant. (Complaint 11:9-10; 11:19-24.)
15 The Fifth Cause of Action for Injunctive Relief relies on the alleged attorney-client relationship
16 between Plaintiff and Defendant. (Complaint 12:9-10.)
17 The Sixth Cause of Action relies on the alleged attorney-client relationship between Plaintiff and
18 Defendant. (Complaint 13:4-5; 13-20.)
19 The Seventh Cause of Action for Rescission relies on the alleged attorney-client relationship
20 between Plaintiff and Defendant. (Complaint 14:16-17; 14:27-15:6.)
21 The Defendant disputes the existence of an attorney-client relationship between Plaintiff and
22 Defendant prior to August 12, 2004. (Declaration of Robin Calder.)
23 The early determination of the existence or nonexistence of an attorney-client relationship, if
24 found not to exist, will conserve judicial resources by eliminating the time consuming evidentiary issues
25 of Defendant’s alleged failure to comply with the Rules of Professional Responsibility and Plaintiff's
26 alleged remedies.
27 ‘Code of Civil Procedure section 598 was adopted in 1963 as the result of Judicial
Council recommendations. Its objective isavoidance of the waste of time and money ©
28 caused by the unnecessary trialof damage questions in cases where the liability issue is
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MEMORANDUM OF POINTS AND AUTHORITIES
resolved against the plaintiff. (17th Biennial Report, Judicial Council (1959) p. 30; 18th
Biennial Report (1961) pp. 56—S57; 19th Biennial Report (1963) p. 32; see also
Committee on Adm. of Justice Report, 36 St.Bar J. p. 416 (1961).)’
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(Horton v. Jones (1972) 26 Cal.App.3d 952, 955.)
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Plaintiff relies on the alleged attorney-client relationship, essentially alleging defendant procured
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titleto the subject property by undue influence in violation of the Rules of the State Bar of California.
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Absent the alleged attorney-client relationship, all, ifnot most, of Plaintiff's Causes of Action
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will fail.To conserve judicial resources and to conserve the witnesses and parties time and expense, it is
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appropriate to try the issue of the existence of an attorney-client relationship before the remaining issues,
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Ill. CONCLUSION
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Plaintiff's Third Cause of Action seeks to quiet titleto the Property. However, the complaint is
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unverified. Consequently, judgment in favor of Defendant ought to be entered.
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Plaintiff's First through the Seventh Causes of Action rely, either in whole or in part, on the
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existence of an attorney-client relationship between the Plaintiff and the Defendant. Ifan attorney-client
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relationship is found not to have existed the remaining issues will be eliminated, or at aminimum,
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substantially reduced. Therefore, the issue of the existence of an attorney-client relationship ought to be
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bifurcated and tried before other issues.
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For the reasons set forth above Defendant respectfully submits that Defendant’s motion ought to
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be granted, that judgment on the unverified Complaint ought to be entered in Defendant’s favor and, in
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the alternative, Plaintiff be ordered to file an amended verified complaint, that Defendant be given
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sufficient time to file a responsive pleading thereto, the trial date be vacated and in the further alternative
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that the issue of the existence of an attorney-client relationship between Plaintiff and the Defendant be
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bifurcated and tried before the other issues.
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23 2020 Respectfully submitted,
Dated: March 2,
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25 Ruranes D VL
LAWRENCE D. MILLER
26 Attorney for Defendant, Robin Calder
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MEMORANDUM OF POINTS AND AUTHORITIES