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1 Port J. Parker, SBN 179256 09/14/2020
Jeffrey S. Einsohn, SBN 260150
2 PARKER LAW GROUP ATTORNEYS
A Professional Corporation
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555 Capitol Mall, Suite 1230
4 Sacramento, CA 95814
Telephone: (916) 996-0400
5 Facsimile: (916) 668-5760
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Attorneys for TODD JARVIS
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9 SUPERIOR COURT OF CALIFORNIA
10 IN AND FOR THE COUNTY OF PLACER
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ROBIN ELIZABETH CALDER, Case No. SCV-0043237
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Plaintiff, DEFENDANT’S OPPOSITION TO
13 v. MOTION FOR LEAVE TO FILE FIRST
AMENDED COMPLAINT
14 TODD JARVIS and DOES 1 through 50,
inclusive, Date: September 25, 2020
15 Time: 8:30 a.m.
Defendants. Dept: 3
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18 I. INTRODUCTION
19 While leave to amend a complaint is generally freely granted, “leave to amend should not be
20 granted where, in all probability, amendment would be futile.” (Vaillette v. Fireman's Fund Ins. Co.
21 (1993) 18 Cal.App.4th 680, 684 [italics in the original].) Here, leave to amend would be futile in
22 several respects, including that all of the new causes of action are foreclosed as a matter of law.
23 Further, this is Plaintiff Robin Calder’s (“Calder”) second proposed first amended complaint.
24 She included a proposed amended complaint in her opposition to summary judgment filed nearly two
25 months ago. Defendant Todd Jarvis (“Jarvis”) was forced to dedicate considerable space in his reply
26 brief to addressing that proposed amended complaint and pointing out its obvious defects, and that it
27 was a sham pleading that contradicted the original, verified complaint. Calder then filed an ex parte
28 application to submit even more material in opposition to summary judgment. The court granted her
DEFENDANT’S OPPOSITION TO MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
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1 leave to do so over Jarvis’s strenuous objection. Now Calder is seeking a third bite at the apple to
2 submit a yet another proposed first amended complaint, which Jarvis believes is yet another attempt
3 to derail summary judgment.
4 Finally, Calder has set the hearing for this motion during the planned trial of another case
5 involving these same parties. Assuming, the parties are assigned a courtroom on September 21, 2020,
6 as planned, for their anticipated 5-day trial, counsel for the parties may not even be available.
7 Therefore, Jarvis asks that the Court continue the hearing to a later date.
8 II. SUMMARY OF FACTS
9 According to records, Calder provided legal services to Jarvis going back to the early 2000s.
10 (Declaration of Jeffrey S. Einsohn (“Einsohn Dec.”) ¶3.) In 2009, she allegedly had him sign a new
11 fee agreement. That fee agreement contained a provision purporting to require Jarvis to indemnify
12 Calder for any liability or claim made against her as a result of her representation of Jarvis (including
13 alleged negligence). (RFJN 1, Exhibit A.) At some point, Calder filed a motion to change venue in a
14 trust proceeding that had been going on for many years. She lost the motion, and pursuant to Code
15 Civ. Proc. § 396b(b)(2)1 sanctions in the form of attorney’s fees and costs were imposed upon her
16 personally. Calder then appealed that order, lost, and she was ordered to pay further sanctions. (RFJN
17 1, ¶25.) In her original, verified complaint, she states that she demanded Jarvis pay her the alleged
18 outstanding balance of fees owed to her under the 2009 fee agreement and that Jarvis breached the
19 contract at that time by failing to pay her approximately $1 million. (RFJN 1, ¶11 [“On or about July
20 30, 2015, Defendants, Todd Jarvis, and Does 1 thought 10, inclusive, breached the Contract by failing
21 to pay Plaintiff the balance due pursuant to the terms of the contract although demand was made
22 therefore.”].)
23 III. PROCEDURAL HISTORY
24 Calder filed her verified complaint on June 1, 2018 in Santa Clara County and served it two
25 months later. (Einsohn Dec. ¶4.) Calder sought well over $1 million in allegedly unpaid attorney’s
26 fees plus interest at 10% going back many years, as well as payment of her sanction’s liability with
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Code Civ. Proc. § 396b(b)(2) states in relevant part: “As between the party and his or her attorney, those expenses and
fees shall be the personal liability of the attorney and not chargeable to the party.”
DEFENDANT’S OPPOSITION TO MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
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1 interest under an express indemnity claim. (RFJN 1) Jarvis filed a motion to sever claims against third
2 parties (who were later dismissed) and transfer to Placer County in September 2018. The case was
3 transferred to Placer County in June 2019. Trial was eventually set for August 3, 2020. (Einsohn Decl.
4 ¶5.) Although limited discovery had been conducted, the time for filing a summary judgment motion
5 was fast approaching due to the impending trial date. On April 14, 2020, Jarvis filed motion for
6 summary judgment/adjudication on narrow grounds. (RFJN 2.) One of those grounds was that
7 contractual indemnity was an unenforceable claim for several reasons, including that Calder was using
8 it to unlawfully and unethically shift her sanctions liability onto her former client in direct violation
9 of statute. Jarvis further argued, inter alia, that Calder’s claim for quantum merit was untimely as her
10 complaint was filed more than two (2) years after she affirmatively alleged Jarvis was in breach and
11 she demanded payment and stopped representing him. (Id.) In her opposition, Calder attached an
12 unverified proposed amended complaint that attempted to change Calder’s verified allegation that
13 Jarvis was in breach of his obligation to pay in 2015. (RFJN 3.)
14 In her verified Complaint, Calder unequivocally alleges breach “On or about July 30, 2015.”
15 (RFJN 1, ¶11.) Calder incorporated that allegation into her Reasonable Value (Quantum Meruit) cause
16 of action. Clearly, Calder alleged that she expected and demanded payment in July 2015.
17 Due to litigation in an earlier filed case by Jarvis against Calder (that is scheduled to be in trial
18 starting September 21, 2020), as well as COVID-19, the trial in this case was continued to June 14,
19 2021. (Einsohn Decl. ¶7.)
20 On July 24, 2020, Calder filed her summary judgment opposition. Realizing that some of her
21 causes of action were time barred, Calder tried to completely change her story. She then claimed in an
22 unverified proposed complaint that she had some alleged oral agreement with Jarvis in which he
23 promised to pay her when he received a second substantial distribution from his Trust. (RFJN 3. Ex.
24 D ¶23.) That is a sham that contradicts her earlier verified admission of breach in 2015. The new
25 second proposed first amended complaint at issue here does the same.
26 Jarvis filed a reply to her opposition addressing the many problems with the proposed amended
27 complaint. (RFJN 4.) After the reply was filed, Calder moved ex parte to file a further declaration in
28 support of her opposition to summary judgment, but did not address the defects with her proposed
DEFENDANT’S OPPOSITION TO MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
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1 amended complaint as set forth in the reply brief. (Einsohn Decl. ¶9.) However, on August 31, 2020,
2 a month after her opposition, Calder filed the instant motion with a second version of a proposed
3 amended complaint. Her new proposed amended complaint expands upon the tactic she started in the
4 prior version of twisting what are clearly contract claims into tort claims, including in this latest
5 version, fraud claims based on breaches of contract.
6 IV. LEGAL ARGUMENT
7 A. Legal Standard
8 Code Civ. Proc. § 473 grants the Court the discretion to grant or deny leave to file an amended
9 pleading. While leave to amend is generally freely granted, that freedom is not limitless. The Court
10 must determine whether the Plaintiff has shown “in what manner he [or she] can amend [the]
11 complaint and how that amendment will change the legal effect of [the] pleading.” (Goodman v.
12 Kennedy (1976) 18 Cal.3d 335, 349.) “[L]eave to amend should not be granted where ...
13 amendment would be futile.” (Vaillette v. Fireman's Fund Ins. Co. (1993) 18 Cal. App. 4th 680,
14 685 (emphasis added, italics in original); Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.
15 App. 4th 365, 374.)
16 B. The Current (Second) Proposed First Amended Complaint is a Sham
17 Calder cannot contradict her verified admissions. “Facts established by pleadings as judicial
18 admissions ‘are conclusive concessions of the truth of those matters, are effectively removed as issues
19 from the litigation, and may not be contradicted by the party whose pleadings are used against him or
20 her.’” (Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 456 [citations omitted].) “ ‘[A]
21 pleader cannot blow hot and cold as to the facts positively stated.’ ” (Id.)
22 Here, Calder made a judicial admission she expected payment on July 30, 2015 more than two
23 years before she filed her complaint. She is estopped from contradicting her own verified complaint
24 by asserting that she did not expect payment until years later. (Zakk v. Diesel (2019) 33 Cal.App.5th
25 431, 447 [“[I]f a party files an amended complaint and attempts to avoid the defects of the original
26 complaint by either omitting facts which made the previous complaint defective or by adding facts
27 inconsistent with those of previous pleadings, the court may take judicial notice of prior pleadings and
28 may disregard any inconsistent allegations.”].) If Jarvis was in breach of the contract as of July 30,
DEFENDANT’S OPPOSITION TO MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
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1 2015, then payment could not have been due years later. She is trying to contradict her sworn pleading
2 with an unsworn amended pleading to save her Quantum Meruit cause of action. Leave to amend
3 should be denied.
4 C. Calder’s New Proposed Fourth Cause of Action for Promissory Estoppel Does Not
5 State Anything Other than a Breach of Contract Claim
6 Calder’s new proposed fourth cause of action is for promissory estoppel. In sum, Calder
7 alleges that she demanded payment on a contract for services rendered. Jarvis said he would pay later.
8 Calder then purportedly performed additional services for Jarvis under the contract. She alleges Jarvis
9 did not pay and so he owes her the alleged contractual fee. That is a breach of contract cause of action,
10 nothing more, nothing less. “Cases have characterized promissory estoppel claims as being basically
11 the same as contract actions, but only missing the consideration element.” (US Ecology, Inc. v. State
12 of California (2005) 129 Cal.App.4th 887.) Here, there is no lack of consideration. Jarvis merely did
13 not fulfill his purported contractual obligation. A spade is a spade. There is no promissory estoppel
14 claim alleged and amendment to add this improper and superfluous claim is futile.
15 D. Calder’s New Proposed Fifth Cause of Action is a Contract Claim Dressed Up as
16 a Fraud Claim
17 This new cause of action is nothing more than an attempt to turn a contract claim into a fraud
18 claim by merely adding the allegation that Jarvis did not intend to fulfill his purported contractual
19 obligations. The cause of action starts off by reciting that parties to a written contract can modify the
20 written contracts terms. (¶105) Then Calder alleges that a written contract can be modified by oral
21 agreement. (¶106.) Then she alleges Plaintiff promised to pay his purported contractual obligations.
22 (¶107.) Then she alleges on information and belief that his promise to meet his purported contractual
23 obligation was false or made with reckless disregard because he did not pay her in 2017. (¶108.) The
24 rest of the cause of action is irrelevant or discusses her purported damages. As a matter of law that is
25 insufficient to constitute fraud.
26 “Contract and tort are different branches of law. Contract law exists to enforce legally binding
27 agreements between parties; tort law is designed to vindicate social policy.” (Applied Equipment Corp.
28 v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 514.) “Within the different spheres of contract and
DEFENDANT’S OPPOSITION TO MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
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1 tort, motivations for conduct are also treated differently…the law generally does not distinguish
2 between good and bad motives for breaching a contract.” (Id. at 516.)
3 “An omission to perform a contract obligation is never a tort, unless that omission is also an
4 omission of a legal duty.” (Erlich v. Menezes (1999) 21 Cal.4th 543, 550–551, citations omitted.) That
5 duty must be independent of the duty imposed by the contract. (Id.) An example would be breach of
6 a contract that also resulted in personal injury (Fuentes v. Perez (1977) 66 Cal.App.3d 163, 168, fn.
7 2) or wrongful discharge in violation of public policy (See Tameny v. Atlantic Richfield Co. (1980)
8 27 Cal.3d 167, 175-176). There is simply nothing like that in this case.
9 Courts have warned for many years extending “tort remedies to commercial contracts create
10 the potential of turning every breach of contract dispute into a punitive damage claim.” (Harris v.
11 Atlantic Richfield Co. (1993) 14 Cal.App.4th 70, 81.) That is exactly what Calder is trying to do.
12 Calder is trying to turn a claim that a client did not pay bills into a case where she is seeking punitive
13 damages (PFAC, Prayer for Relief ¶14) as well as other unspecified tort damages. It is offensive that
14 a member of the bar is making a former client incur fees and costs to oppose such patently improper
15 damage claims.
16 E. Calder’s New Proposed Sixth Cause of Action for Imposition of Constructive
17 Trust is Not a Cause of Action
18 In opposition to summary judgment, Calder proposed to make her sixth cause of action “unjust
19 enrichment” Jarvis pointed out that unjust enrichment is not a cause of action, but rather a synonym
20 for restitution. Apparently conceding the point, Calder went in a different direction and now wants to
21 make her sixth cause of action for imposition of a constructive trust. Unfortunately, Calder has once
22 again tried to make an equitable remedy into a cause of action. “A constructive trust is an equitable
23 remedy” not a separate cause of action or right to relief. (Lazar v. Hertz Corp. (1983) 143 Cal.App.3d
24 128, 139 [citing Kraus v. Willow Park Public Golf Course (1977) 73 Cal.App.3d 354, 373.) Since
25 Constructive Trust is not a cause of action, it would be futile to grant leave to amend to state a
26 nonexistent cause of action.
27 ///
28 ///
DEFENDANT’S OPPOSITION TO MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
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1 F. Calder’s New Proposed Eighth Cause of Action for Promissory Estoppel
2 Regarding Indemnity is Foreclosed as a Matter of Law
3 Calder alleges she was sanctioned for filing an improper motion to change venue and in her
4 original complaint (as well as this proposed first amended complaint) she seeks contractual indemnity
5 from Jarvis for the sanctions. As set forth more fully in Jarvis’s Motion for Summary
6 Judgment/Adjudication, Code Civ. Proc. § 396b(b)(2) states with respect to such sanctions: “As
7 between the party and his or her attorney, those expenses and fees shall be the personal liability of the
8 attorney not chargeable to the party.” Calder was not capable of contracting with her client to change
9 section 396b(b)(2). The Civil Code plainly states a contract cannot contradict statues, even if the
10 statute does not expressly prohibit someone from contracting around it. (See Civ. Code § 1667 [“That
11 is not lawful which is: 1. Contrary to an express provision of law; 2. Contrary to the policy of express
12 law, though not expressly prohibited…”]; see also Green v. Mt. Diablo Hospital Dist. (1989) 207
13 Cal.App.3d 63, 73 [“Contracts that are contrary to express statutes or to the policy of express statutes
14 ... are illegal contracts.”].)
15 In a transparent attempt to get around this, Calder now adds a second indemnity related cause
16 of action, the proposed eighth cause of action for promissory estoppel regarding indemnity. She
17 incorporates the allegations of the express indemnity cause of action, and then alleges that to induce
18 Calder, an attorney, to file a motion, Jarvis promised her he would “ ‘have her back’ and honor the
19 Fees Agreement Indemnity Clause.” (PFAC ¶137.) Calder cannot turn a beach of contract claim on
20 an agreement that is unenforceable as a matter of law into an estoppel claim merely by alleging that
21 she relied on Jarvis’s agreement to comply with the illegal contract term. Holding otherwise would
22 allow any unenforceable or illegal agreement to become enforceable again merely by alleging reliance
23 on an unenforceable agreement. Moreover, as an attorney, Calder should have known better. Adding
24 such claim would be futile.
25 G. Calder’s New Proposed Ninth Cause of Action for Restitution Falls With the
26 Other Indemnity Causes of Action
27 Calder purports to assert a cause of action for “restitution.” The cause of action alleges (1)
28 incorporation of the allegations of the Eighth Cause of Action (Estoppel re Indemnity), (2) that Jarvis
DEFENDANT’S OPPOSITION TO MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
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1 became indebted to Calder in the amount of her indemnity claim “for money had and received by
2 Defendant under court process” and (3) service of the FAC will constitute demand for payment.
3 Although styled as “restitution” this appears to be a common count claim for money had and
4 received. “When a common count is used as an alternative way of seeking the same recovery
5 demanded in a specific cause of action, and is based on the same facts, the common count is
6 demurrable if the cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th 379,
7 394.) As noted above, all causes of action based on an illegal indemnity provision or attempt to shift
8 court ordered sanctions from the attorney to the client fails as a matter of law. The Ninth Cause of
9 Action falls with them. It would be futile to grant leave.
10 H. Calder’s New Proposed Tenth Cause of Action for Intentional Misrepresentation
11 Regarding Indemnity Cannot Make an Unenforceable Contract Claim
12 Enforceable
13 In yet another permutation of the exact same claim, Calder alleges that Jarvis fraudulently
14 misrepresented that he would honor the contractual indemnity provision and pay the sanctions the
15 Monterey Superior Court ordered her to pay personally, as required by the statute. As was the case
16 with all of the other indemnity claims, Calder cannot turn what she has already alleged is a breach of
17 contract into a fraud claim absent a legal duty which is not alleged and which does not exist in this
18 case. (See Erlich, supra, 21 Cal.4th at 550–551; Harris, supra, 14 Cal.App.4th 70, 81.) Contract and
19 torts are separate, and a contract claim does not become a fraud claim merely because the contract was
20 breached. This is especially so when the alleged agreement is unenforceable as courts will not enforce
21 illegal agreements.
22 V. CONCLUSION
23 Jarvis does not categorically deny that Calder can amend her complaint. However, no demurrer
24 is necessary to see that all of her new causes of action would be entirely futile. Leave to amend will
25 only lead to further unnecessary motion practice. Moreover, the court needs to take into consideration
26 the ultimate ruling on the pending summary judgment motion, which is scheduled to be heard after
27 this opposition brief is due, but one week before this motion is heard. If, as Jarvis suspects, the court
28 grants summary judgment as to an express, contract-based claim, then Calder should not be allowed
DEFENDANT’S OPPOSITION TO MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
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1 to circumvent that by recasting the same as an estoppel or fraud claim. Leave to amend, as to what is
2 currently proposed, should be denied.
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4 DATED: September 14, 2020 PARKER LAW GROUP ATTORNEYS
A Professional Corporation
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7 PORT J. PARKER
JEFFREY S. EINSOHN
8 Attorneys for TODD JARVIS
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1 Port J. Parker, SBN 179256 09/14/2020 Jeffrey S. Einsohn, SBN 260150 2 PARKER LAW GROUP ATTORNEYS A Professional Corporation 3 555 Capitol Mall, Suite 1230 4 Sacramento, CA 95814 Telephone: (916) 996-0400 5 Facsimile: (916) 668-5760 6 Attorneys for TODD JARVIS 7 8 9 SUPERIOR COURT OF CALIFORNIA 10 IN AND FOR THE COUNTY OF PLACER 11 ROBIN ELIZABETH CALDER, Case No. SCV-0043237 12 Plaintiff, DEFENDANT’S OPPOSITION TO 13 v. MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT 14 TODD JARVIS and DOES 1 through 50, inclusive, Date: September 25, 2020 15 Time: 8:30 a.m. Defendants. Dept: 3 16 17 18 I. INTRODUCTION 19 While leave to amend a complaint is generally freely granted, “leave to amend should not be 20 granted where, in all probability, amendment would be futile.” (Vaillette v. Fireman's Fund Ins. Co. 21 (1993) 18 Cal.App.4th 680, 684 [italics in the original].) Here, leave to amend would be futile in 22 several respects, including that all of the new causes of action are foreclosed as a matter of law. 23 Further, this is Plaintiff Robin Calder’s (“Calder”) second proposed first amended complaint. 24 She included a proposed amended complaint in her opposition to summary judgment filed nearly two 25 months ago. Defendant Todd Jarvis (“Jarvis”) was forced to dedicate considerable space in his reply 26 brief to addressing that proposed amended complaint and pointing out its obvious defects, and that it 27 was a sham pleading that contradicted the original, verified complaint. Calder then filed an ex parte 28 application to submit even more material in opposition to summary judgment. The court granted her DEFENDANT’S OPPOSITION TO MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT 1 1 leave to do so over Jarvis’s strenuous objection. Now Calder is seeking a third bite at the apple to 2 submit a yet another proposed first amended complaint, which Jarvis believes is yet another attempt 3 to derail summary judgment. 4 Finally, Calder has set the hearing for this motion during the planned trial of another case 5 involving these same parties. Assuming, the parties are assigned a courtroom on September 21, 2020, 6 as planned, for their anticipated 5-day trial, counsel for the parties may not even be available. 7 Therefore, Jarvis asks that the Court continue the hearing to a later date. 8 II. SUMMARY OF FACTS 9 According to records, Calder provided legal services to Jarvis going back to the early 2000s. 10 (Declaration of Jeffrey S. Einsohn (“Einsohn Dec.”) ¶3.) In 2009, she allegedly had him sign a new 11 fee agreement. That fee agreement contained a provision purporting to require Jarvis to indemnify 12 Calder for any liability or claim made against her as a result of her representation of Jarvis (including 13 alleged negligence). (RFJN 1, Exhibit A.) At some point, Calder filed a motion to change venue in a 14 trust proceeding that had been going on for many years. She lost the motion, and pursuant to Code 15 Civ. Proc. § 396b(b)(2)1 sanctions in the form of attorney’s fees and costs were imposed upon her 16 personally. Calder then appealed that order, lost, and she was ordered to pay further sanctions. (RFJN 17 1, ¶25.) In her original, verified complaint, she states that she demanded Jarvis pay her the alleged 18 outstanding balance of fees owed to her under the 2009 fee agreement and that Jarvis breached the 19 contract at that time by failing to pay her approximately $1 million. (RFJN 1, ¶11 [“On or about July 20 30, 2015, Defendants, Todd Jarvis, and Does 1 thought 10, inclusive, breached the Contract by failing 21 to pay Plaintiff the balance due pursuant to the terms of the contract although demand was made 22 therefore.”].) 23 III. PROCEDURAL HISTORY 24 Calder filed her verified complaint on June 1, 2018 in Santa Clara County and served it two 25 months later. (Einsohn Dec. ¶4.) Calder sought well over $1 million in allegedly unpaid attorney’s 26 fees plus interest at 10% going back many years, as well as payment of her sanction’s liability with 27 28 1 Code Civ. Proc. § 396b(b)(2) states in relevant part: “As between the party and his or her attorney, those expenses and fees shall be the personal liability of the attorney and not chargeable to the party.” DEFENDANT’S OPPOSITION TO MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT 2 1 interest under an express indemnity claim. (RFJN 1) Jarvis filed a motion to sever claims against third 2 parties (who were later dismissed) and transfer to Placer County in September 2018. The case was 3 transferred to Placer County in June 2019. Trial was eventually set for August 3, 2020. (Einsohn Decl. 4 ¶5.) Although limited discovery had been conducted, the time for filing a summary judgment motion 5 was fast approaching due to the impending trial date. On April 14, 2020, Jarvis filed motion for 6 summary judgment/adjudication on narrow grounds. (RFJN 2.) One of those grounds was that 7 contractual indemnity was an unenforceable claim for several reasons, including that Calder was using 8 it to unlawfully and unethically shift her sanctions liability onto her former client in direct violation 9 of statute. Jarvis further argued, inter alia, that Calder’s claim for quantum merit was untimely as her 10 complaint was filed more than two (2) years after she affirmatively alleged Jarvis was in breach and 11 she demanded payment and stopped representing him. (Id.) In her opposition, Calder attached an 12 unverified proposed amended complaint that attempted to change Calder’s verified allegation that 13 Jarvis was in breach of his obligation to pay in 2015. (RFJN 3.) 14 In her verified Complaint, Calder unequivocally alleges breach “On or about July 30, 2015.” 15 (RFJN 1, ¶11.) Calder incorporated that allegation into her Reasonable Value (Quantum Meruit) cause 16 of action. Clearly, Calder alleged that she expected and demanded payment in July 2015. 17 Due to litigation in an earlier filed case by Jarvis against Calder (that is scheduled to be in trial 18 starting September 21, 2020), as well as COVID-19, the trial in this case was continued to June 14, 19 2021. (Einsohn Decl. ¶7.) 20 On July 24, 2020, Calder filed her summary judgment opposition. Realizing that some of her 21 causes of action were time barred, Calder tried to completely change her story. She then claimed in an 22 unverified proposed complaint that she had some alleged oral agreement with Jarvis in which he 23 promised to pay her when he received a second substantial distribution from his Trust. (RFJN 3. Ex. 24 D ¶23.) That is a sham that contradicts her earlier verified admission of breach in 2015. The new 25 second proposed first amended complaint at issue here does the same. 26 Jarvis filed a reply to her opposition addressing the many problems with the proposed amended 27 complaint. (RFJN 4.) After the reply was filed, Calder moved ex parte to file a further declaration in 28 support of her opposition to summary judgment, but did not address the defects with her proposed DEFENDANT’S OPPOSITION TO MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT 3 1 amended complaint as set forth in the reply brief. (Einsohn Decl. ¶9.) However, on August 31, 2020, 2 a month after her opposition, Calder filed the instant motion with a second version of a proposed 3 amended complaint. Her new proposed amended complaint expands upon the tactic she started in the 4 prior version of twisting what are clearly contract claims into tort claims, including in this latest 5 version, fraud claims based on breaches of contract. 6 IV. LEGAL ARGUMENT 7 A. Legal Standard 8 Code Civ. Proc. § 473 grants the Court the discretion to grant or deny leave to file an amended 9 pleading. While leave to amend is generally freely granted, that freedom is not limitless. The Court 10 must determine whether the Plaintiff has shown “in what manner he [or she] can amend [the] 11 complaint and how that amendment will change the legal effect of [the] pleading.” (Goodman v. 12 Kennedy (1976) 18 Cal.3d 335, 349.) “[L]eave to amend should not be granted where ... 13 amendment would be futile.” (Vaillette v. Fireman's Fund Ins. Co. (1993) 18 Cal. App. 4th 680, 14 685 (emphasis added, italics in original); Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal. 15 App. 4th 365, 374.) 16 B. The Current (Second) Proposed First Amended Complaint is a Sham 17 Calder cannot contradict her verified admissions. “Facts established by pleadings as judicial 18 admissions ‘are conclusive concessions of the truth of those matters, are effectively removed as issues 19 from the litigation, and may not be contradicted by the party whose pleadings are used against him or 20 her.’” (Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 456 [citations omitted].) “ ‘[A] 21 pleader cannot blow hot and cold as to the facts positively stated.’ ” (Id.) 22 Here, Calder made a judicial admission she expected payment on July 30, 2015 more than two 23 years before she filed her complaint. She is estopped from contradicting her own verified complaint 24 by asserting that she did not expect payment until years later. (Zakk v. Diesel (2019) 33 Cal.App.5th 25 431, 447 [“[I]f a party files an amended complaint and attempts to avoid the defects of the original 26 complaint by either omitting facts which made the previous complaint defective or by adding facts 27 inconsistent with those of previous pleadings, the court may take judicial notice of prior pleadings and 28 may disregard any inconsistent allegations.”].) If Jarvis was in breach of the contract as of July 30, DEFENDANT’S OPPOSITION TO MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT 4 1 2015, then payment could not have been due years later. She is trying to contradict her sworn pleading 2 with an unsworn amended pleading to save her Quantum Meruit cause of action. Leave to amend 3 should be denied. 4 C. Calder’s New Proposed Fourth Cause of Action for Promissory Estoppel Does Not 5 State Anything Other than a Breach of Contract Claim 6 Calder’s new proposed fourth cause of action is for promissory estoppel. In sum, Calder 7 alleges that she demanded payment on a contract for services rendered. Jarvis said he would pay later. 8 Calder then purportedly performed additional services for Jarvis under the contract. She alleges Jarvis 9 did not pay and so he owes her the alleged contractual fee. That is a breach of contract cause of action, 10 nothing more, nothing less. “Cases have characterized promissory estoppel claims as being basically 11 the same as contract actions, but only missing the consideration element.” (US Ecology, Inc. v. State 12 of California (2005) 129 Cal.App.4th 887.) Here, there is no lack of consideration. Jarvis merely did 13 not fulfill his purported contractual obligation. A spade is a spade. There is no promissory estoppel 14 claim alleged and amendment to add this improper and superfluous claim is futile. 15 D. Calder’s New Proposed Fifth Cause of Action is a Contract Claim Dressed Up as 16 a Fraud Claim 17 This new cause of action is nothing more than an attempt to turn a contract claim into a fraud 18 claim by merely adding the allegation that Jarvis did not intend to fulfill his purported contractual 19 obligations. The cause of action starts off by reciting that parties to a written contract can modify the 20 written contracts terms. (¶105) Then Calder alleges that a written contract can be modified by oral 21 agreement. (¶106.) Then she alleges Plaintiff promised to pay his purported contractual obligations. 22 (¶107.) Then she alleges on information and belief that his promise to meet his purported contractual 23 obligation was false or made with reckless disregard because he did not pay her in 2017. (¶108.) The 24 rest of the cause of action is irrelevant or discusses her purported damages. As a matter of law that is 25 insufficient to constitute fraud. 26 “Contract and tort are different branches of law. Contract law exists to enforce legally binding 27 agreements between parties; tort law is designed to vindicate social policy.” (Applied Equipment Corp. 28 v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 514.) “Within the different spheres of contract and DEFENDANT’S OPPOSITION TO MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT 5 1 tort, motivations for conduct are also treated differently…the law generally does not distinguish 2 between good and bad motives for breaching a contract.” (Id. at 516.) 3 “An omission to perform a contract obligation is never a tort, unless that omission is also an 4 omission of a legal duty.” (Erlich v. Menezes (1999) 21 Cal.4th 543, 550–551, citations omitted.) That 5 duty must be independent of the duty imposed by the contract. (Id.) An example would be breach of 6 a contract that also resulted in personal injury (Fuentes v. Perez (1977) 66 Cal.App.3d 163, 168, fn. 7 2) or wrongful discharge in violation of public policy (See Tameny v. Atlantic Richfield Co. (1980) 8 27 Cal.3d 167, 175-176). There is simply nothing like that in this case. 9 Courts have warned for many years extending “tort remedies to commercial contracts create 10 the potential of turning every breach of contract dispute into a punitive damage claim.” (Harris v. 11 Atlantic Richfield Co. (1993) 14 Cal.App.4th 70, 81.) That is exactly what Calder is trying to do. 12 Calder is trying to turn a claim that a client did not pay bills into a case where she is seeking punitive 13 damages (PFAC, Prayer for Relief ¶14) as well as other unspecified tort damages. It is offensive that 14 a member of the bar is making a former client incur fees and costs to oppose such patently improper 15 damage claims. 16 E. Calder’s New Proposed Sixth Cause of Action for Imposition of Constructive 17 Trust is Not a Cause of Action 18 In opposition to summary judgment, Calder proposed to make her sixth cause of action “unjust 19 enrichment” Jarvis pointed out that unjust enrichment is not a cause of action, but rather a synonym 20 for restitution. Apparently conceding the point, Calder went in a different direction and now wants to 21 make her sixth cause of action for imposition of a constructive trust. Unfortunately, Calder has once 22 again tried to make an equitable remedy into a cause of action. “A constructive trust is an equitable 23 remedy” not a separate cause of action or right to relief. (Lazar v. Hertz Corp. (1983) 143 Cal.App.3d 24 128, 139 [citing Kraus v. Willow Park Public Golf Course (1977) 73 Cal.App.3d 354, 373.) Since 25 Constructive Trust is not a cause of action, it would be futile to grant leave to amend to state a 26 nonexistent cause of action. 27 /// 28 /// DEFENDANT’S OPPOSITION TO MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT 6 1 F. Calder’s New Proposed Eighth Cause of Action for Promissory Estoppel 2 Regarding Indemnity is Foreclosed as a Matter of Law 3 Calder alleges she was sanctioned for filing an improper motion to change venue and in her 4 original complaint (as well as this proposed first amended complaint) she seeks contractual indemnity 5 from Jarvis for the sanctions. As set forth more fully in Jarvis’s Motion for Summary 6 Judgment/Adjudication, Code Civ. Proc. § 396b(b)(2) states with respect to such sanctions: “As 7 between the party and his or her attorney, those expenses and fees shall be the personal liability of the 8 attorney not chargeable to the party.” Calder was not capable of contracting with her client to change 9 section 396b(b)(2). The Civil Code plainly states a contract cannot contradict statues, even if the 10 statute does not expressly prohibit someone from contracting around it. (See Civ. Code § 1667 [“That 11 is not lawful which is: 1. Contrary to an express provision of law; 2. Contrary to the policy of express 12 law, though not expressly prohibited…”]; see also Green v. Mt. Diablo Hospital Dist. (1989) 207 13 Cal.App.3d 63, 73 [“Contracts that are contrary to express statutes or to the policy of express statutes 14 ... are illegal contracts.”].) 15 In a transparent attempt to get around this, Calder now adds a second indemnity related cause 16 of action, the proposed eighth cause of action for promissory estoppel regarding indemnity. She 17 incorporates the allegations of the express indemnity cause of action, and then alleges that to induce 18 Calder, an attorney, to file a motion, Jarvis promised her he would “ ‘have her back’ and honor the 19 Fees Agreement Indemnity Clause.” (PFAC ¶137.) Calder cannot turn a beach of contract claim on 20 an agreement that is unenforceable as a matter of law into an estoppel claim merely by alleging that 21 she relied on Jarvis’s agreement to comply with the illegal contract term. Holding otherwise would 22 allow any unenforceable or illegal agreement to become enforceable again merely by alleging reliance 23 on an unenforceable agreement. Moreover, as an attorney, Calder should have known better. Adding 24 such claim would be futile. 25 G. Calder’s New Proposed Ninth Cause of Action for Restitution Falls With the 26 Other Indemnity Causes of Action 27 Calder purports to assert a cause of action for “restitution.” The cause of action alleges (1) 28 incorporation of the allegations of the Eighth Cause of Action (Estoppel re Indemnity), (2) that Jarvis DEFENDANT’S OPPOSITION TO MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT 7 1 became indebted to Calder in the amount of her indemnity claim “for money had and received by 2 Defendant under court process” and (3) service of the FAC will constitute demand for payment. 3 Although styled as “restitution” this appears to be a common count claim for money had and 4 received. “When a common count is used as an alternative way of seeking the same recovery 5 demanded in a specific cause of action, and is based on the same facts, the common count is 6 demurrable if the cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 7 394.) As noted above, all causes of action based on an illegal indemnity provision or attempt to shift 8 court ordered sanctions from the attorney to the client fails as a matter of law. The Ninth Cause of 9 Action falls with them. It would be futile to grant leave. 10 H. Calder’s New Proposed Tenth Cause of Action for Intentional Misrepresentation 11 Regarding Indemnity Cannot Make an Unenforceable Contract Claim 12 Enforceable 13 In yet another permutation of the exact same claim, Calder alleges that Jarvis fraudulently 14 misrepresented that he would honor the contractual indemnity provision and pay the sanctions the 15 Monterey Superior Court ordered her to pay personally, as required by the statute. As was the case 16 with all of the other indemnity claims, Calder cannot turn what she has already alleged is a breach of 17 contract into a fraud claim absent a legal duty which is not alleged and which does not exist in this 18 case. (See Erlich, supra, 21 Cal.4th at 550–551; Harris, supra, 14 Cal.App.4th 70, 81.) Contract and 19 torts are separate, and a contract claim does not become a fraud claim merely because the contract was 20 breached. This is especially so when the alleged agreement is unenforceable as courts will not enforce 21 illegal agreements. 22 V. CONCLUSION 23 Jarvis does not categorically deny that Calder can amend her complaint. However, no demurrer 24 is necessary to see that all of her new causes of action would be entirely futile. Leave to amend will 25 only lead to further unnecessary motion practice. Moreover, the court needs to take into consideration 26 the ultimate ruling on the pending summary judgment motion, which is scheduled to be heard after 27 this opposition brief is due, but one week before this motion is heard. If, as Jarvis suspects, the court 28 grants summary judgment as to an express, contract-based claim, then Calder should not be allowed DEFENDANT’S OPPOSITION TO MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT 8 1 to circumvent that by recasting the same as an estoppel or fraud claim. Leave to amend, as to what is 2 currently proposed, should be denied. 3 4 DATED: September 14, 2020 PARKER LAW GROUP ATTORNEYS A Professional Corporation 5 6 ____________________________________ 7 PORT J. PARKER JEFFREY S. EINSOHN 8 Attorneys for TODD JARVIS 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT’S OPPOSITION TO MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT 9