SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO

Transcription

1 > A 0 CJ ~ SHEPPARD,MULLIN,RICHTER&HAMPTONLLP A Limited Liability Partnership Including Professional Corporations GREGORY A. LONG, CaL BarNo. South Hope S1., rd Floor Los Angeles, California 001 Telephone: --0 FacsImile: --1 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations MATTHEWW. HOLDER, CaL BarNo. 1 MATTHEW M. MUELLER, Cal. Bar No. El Camino Real, Suite 0 San Diego, California 0-0 Telephone: --00 FacsImile: -0-1 Attorneys for Defendants JACKSON, DeMARCO, TIDUS & PECKENPAUGH, A LAW CORPORATION and MOHAMED ALIM AHMAD MALIK /., 0 Tf G. ~ ex I I ~ "-"'~~'~'-I" A ~ -~S'IO ;;.::...<i. '. ('f'i SUPERIOR COURT OF THE STATE OF CALIFORNIA SAN DIEGO POLICE OFFICERS ASSOCIATION, v. Plaintiffs, JACKSON, DeMARCO, TIDUS & PECKENPAUGH,ALAW CORPORATION, GREGORY GLENN PETERSEN, an individual, MOHAMED ALIM AHMAD MALIK, an individual, and DOES 1-0, FOR THE COUNTY OF SAN DIEGO Defendants. Case No CU-PN-CTL DEFENDANTS JACKSON,. DEMARCO, TIDUS & PECKENPAUGH AND MOHAMED ALIM AHMAD MALIK'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT [Declaration of Matthew M. Mueller and Request for Judicial Notice filed concurrently herewith] Judge: Hon. John S. Meyer Dept.: SD-1 Date: July, Time: :0 a.m. Complaint Filed: Mar., Trial Date: None Set ' W0 WEST:MMIvH\0000.

2 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD 1 NOTICE IS HEREBY GIVEN that on July,, at :0 a.m., or as soon thereafter as counsel may be heard, in Department SD-1 of the above-entitled Court, located at 0 West Broadway, San Diego, CA 01, defendants JACKSON, DEMARCO, TIDUS & PECKENPAUGH, A LAW CORPORATION and MOHAMED ALIM AHMAD MALIK (collectively, "Jackson DeMarco") will bring on for hearing their demurrer to the complaint filed by plaintiff San Diego Police Officers Association pursuant to California Code of Civil Procedure sections 0. and 0.0. Jackson DeMarco's demurrer is made on the grounds that there is another action pending between the same parties on the same cause ofaction, see Code Civ. Proc. 0.l0(c),, and also that the complaint fails to state facts sufficient to constitute a cause ofaction. See Code Civ. Proc. 0.(e). Jackson DeMarco requests that the Plaintiff be denied leave to amend. 1 This Demurrer is based upon this Notice of Demurrer and Demurrer, the Memorandum of Points and Authorities, the Request for Judicial Notice, the Declaration of Matthew M. Mueller, all other pleadings, papers, records and documentary materials on file or deemed to be on file, those other matters of which this court mayor must take judicial notice, the arguments of counsel at the hearing on this Demurrer, and upon such other evidence and materials as this Court may consider. W0-WEST:MMMl\ Tn PT A ThITTti'ti"<;! (""' "\1< AnT A no.1'1"'

3 DATED: May, SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 1 1 By GORYA.LONG MAT HEWW.HOLDER MATTHEW M. MUELLER Attorneys for Defendants JACKSON, DeMARCO, TIDUS & PECKENPAUGH, ALAW CORPORATION and MOHAMED ALIM AHMAD MALIK W0 WEST:MMMJ\ TO PT.A TNTW1<"<;: 1't1T\!fPT A ThTT

4 DE~RTOTHECO~LMNT Defendants JACKSON, DEMARCO, TIDUS & PECKENPAUGH, A LAW CORPORATION and MOHAMED ALIM AHMAD MALIK (collectively, "Jackson DeMarco") demur to the complaint of plaintiff San Diego Police Officers Association (the "SDPOA") on the following grounds: 1. There is another action pending between the same parties on the same cause of action. See Code Civ. Proc. 0.1 O(c),.. The First Cause ofaction fails to state facts sufficient to constitute a cause of action. See Code Civ. Proc O(e). 1 DEMURRER TO FIRST CAUSE OF ACTION Jackson DeMarco demurs to the SDPOA's frrst cause of action for attorney malpractice on the following grounds: 1 1. There is another action pending between the same parties on the same cause of action. See Code Civ. Proc. 0.(c),.. The First Cause of Action fails to state facts sufficient to constitute a cause of action. See Code Civ. Proc. 0.(e). W0-WEST:MMMl\ TA nt A Tlt.T'T"TT.'r.tC"t r'lr"\.'''''''y.. r-..t,...,.

5 DATED: May, SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By G GORYA.LONG MAT HEW W. HOLDER MATTHEW M. MUELLER Attorneys for Defendants JACKSON, DeMARCO, TIDUS & PECKENPAUGH, A LAW CORPORATION and MOHAMED ALIM AHMAD MALIK 1 1 W0-WEST:MMMJ\ Tn PT.A TNTm1<"~ r(yi\ifdt AThTT

6 1 TABLE OF CONTENTS I. INTRODUCTION... 1 II. III. IV. STATEMENT OF FACTS... A. The Ellis Case... B. The SDPOA Case... LEGAL STANDARD ON A DEMURRER... JACKSON DEMARCO'S DEMURRER SHOULD BE SUSTAINED BECAUSE THIS ACTION IS DUPLICATIVE OF THEELLIS CASE... V. JACKSON DEMARCO'S DEMURRER SHOULD ALSO BE SUSTAINED BECAUSE PLAINTIFF HAS NOT PLED, AND CANNOT PLEAD, FACTS IN SUPPORT OF THE CAUSATION AND DAMAGES ELEMENTS OF A CLAIM FOR LEGAL MALPRACTICE.... A. To Prevail on a Claim for Legal Malpractice, the Plaintiff Must Prove That the Defendant Caused the Plaintiffs Harm... B. Causation in a Legal Malpractice Case Is Appropriately Treated as an Issue of Law, Rather Than Fact, When the Underlying Litigation Was Decided Based on a Question of Law... 1 VI. C. The Plaintiff Cannot Establish That Had Defendants Made A Different Argument, The Plaintiff Would Have Obtained a More Favorable Outcome... CONCLUSION... W0 WEST:MMMl\ TO PT A TNTrn];"~ ("r'~fl)t A ThT'T'

7 1 1 TABLE OF AUTHORITIES State Cases Page(s) Anaheim Elem. Educ. Ass'n v. Board of Educ. () Cal.App.d 1 ()... Bistawros v. Greenberg () Ca1.App.d... Bockrath v. Aldrich Chemical Co. (1) Ca1.th 1... Cal. League of City Employee Ass'ns v. Palos Verdes Library Dist. () CaLApp.d Cal. Union Ins. Co. v. Trinity River Land Co. Inc. (0) CaLApp.d... Carroll v. Puritan Leasing Co. () Cal.App.d 1... Crowley v. Katleman () CaLth... Davaloo v. State Farm Insurance Co. (0) 1 CaLApp.th 0... Freeman v. San Diego Ass'n of Realtors (1) Cal.App.th 1... Piscitelli v. Friedenberg (01) Cal.App.th... San Bernardino Pub. Employees Ass'n v. City of Fontana () CaLApp.th... 1 Shopoff & Cavallo LLP v. Hyon (0) CaLAppAth...,, 1 St. Paul Fire & Marine Ins. Co. v. American Dynasty Surplus Lines Ins. Co. (0) 1 Cal.App.th... Steigerwald v. Godwin () Cal.App.d 1..., W0 WEST:MMMl\ TNTTFF'~ C.OMPT.A TNT

8 1 1 Thompson v. Halvonik () CaLApp.th... Viner v. Sweet (0) 0 Ca1.th...,,, 1 Federal Cases Vaxiion Therapeutics, Inc. v. Foley & Lardner LLP (S.D.CaL 0) 0 WL 1... State: Statutes, Rules, Regulations, Constitutional Provisions Cal. Code Civ. Proc ,,, ,, Evidence Code ( d)... Other Authorities Ronald E. Mallen and Jeffrey M. Smith, LEGAL MALPRACTICE, Fifth Ed. Vol.,. (00)... W0-WEST:MMMl\ Ttl PT Ii ThTTTPP'~ (""'{""\l.kdt A T'h.T'T'

9 MEMORANDUM OF POINTS AND AUTHORITIES 1 1 I. INTRODUCTION Defendants Jackson, DeMarco, Tidus & Peckenpaugh, A Law Corporation, and Mohamed Alim Ahmad Malik (collectively, IIJackson DeMarco") demur to the legal malpractice complaint (the "Complaint") filed by plaintiff San Diego Police Officers Association (the "SDPOA") on the grounds that there is another cause of action pending between the same parties on the same cause of action, and also because the complaint fails to state a cause of action. See Code Civ. Proc. 0.l0(c). In particular, the SDPOA alleges in its Complaint that Jackson DeMarco represented the SDPOA in underlying litigation against the City of San Diego (the "City") and others. The SDPOA claims that Jackson DeMarco failed to properly litigate the SDPOA's members' entitlement to certain retirement health benefits from the City, which in turn resulted in a reduction of those benefits and resulting damages. See Complaint, ~ II(b). The problem with the SDPOA's Complaint is that on February,, those same members ofthe SDPOA (represented by the same attorney representing the SDPOA in this action) filed a virtually identical legal malpractice complaint against Jackson DeMarco. See Dec!. ofmatthew Mueller, ~, Ex. A. The earlier complaint filed by the members ofthe SDPOA alleges the same breach of duty in connection with the retirement health benefit issue. See id., Ex. A at ~~ -. In light ofthe above, it is apparent that the SDPOA and its members (represented by the same attorney) are seeking the same relief, based upon the exact same alleged wrong, in two parallel actions filed here in Superior Court. Pursuant to Code of W0-WEST:MMMl\ T() PT.ATNTTl<'P<;: rnl\tfdt A Tll.TT

10 Civil Procedure section 0.(c), that is improper, and the second-filed action by the SDPOA should be abated. See Code Civ. Proc.. In addition, the legal malpractice action filed by Plaintiff against the defendants also fails because, as a matter of law, Plaintiff cannot satisfy the causation and damages elements of its malpractice claim. In particular, Plaintiff cannot establish that "but for" the alleged legal malpractice, it is more likely than not that it would have achieved a more favorable outcome. See Viner v. Sweet (0) 0 Cal.th, 10-. As a result, its complaint fails to state a cause of action. 1 1 As noted above, Plaintiffs lawsuit arises out of the SDPOA's bitter and protracted fight with the City over retirement health benefits. Plaintiff alleges that Jackson DeMarco represented the SDPOA, as well as its members, in the underlying litigation against the City. According to Plaintiff, central to its position in the underlying lawsuit was its argument that retirement health benefits were vested, and hence the City could not unilaterally modify those benefits. Plaintiff alleges that the defendants did a poor job of presenting this issue to the courts (although not a single allegedly negligent act or omission is identified with specificity). Judge Huff of the United States District Court for the Southern District of California, and Judges Callahan, Ikuta and Shadur of the United States Circuit Court of Appeals for the Ninth Circuit, disagreed with Plaintiffs legal position and ruled that the retirement health benefits were not vested, and hence they could be changed by the City. See Mueller Decl., ~~ -, Exs. B, C. Plaintiff alleges that as a result of this ruling, the City modified the retirement health benefit by imposing an annual cap on benefits through an amendment to the City's Municipal Code. See id., ~ -, Exs. D, E. The fatal defect inherent in Plaintiffs lawsuit is that Plaintiff cannot plead or establish that Jackson DeMarco caused Plaintiff any harm. The complaint merely speculates that Jackson DeMarco could have obtained a more favorable outcome had it W0 WEST:MMMl\ , TNT

11 done some unspecified act (the nature of which one is forced to guess). Whether or not the retirement health benefits were vested is a legal question. Both Judge Huff and the unanimous Ninth Circuit panel examined all California authorities and determined, as a matter of law, that the benefits were not vested. The complaint is resoundingly silent about what fact, given that the issue is one oflaw, or what legal precedent or argument would have convinced these judges to abandon their positions and adopt the opposite one. The lengthy, reasoned opinions ofthe courts, of which this court is requested to take judicial notice, establish beyond contradiction that the judges were firm in their view. l 1 Plaintiffs inability to plead or prove causation becomes more obvious when the underlying record is examined further. Although the federal causes of action brought by the SDPOA and its members were disposed of on the merits, the state law causes of action were dismissed without prejudice. Subsequently, two state court cases were filed. The first, SDPOA v. Aguirre, et ai., San Diego Superior Court Case No. GIC, was dismissed by the SDPOA on December,0, by the Plaintiffs' attorney, Michael Conger (with prejudice as to the City, and without prejudice as to the San Diego City Employees' Retirement System). The second case, Aaron, et al v. Aguirre, et ai., San Diego Superior Court Case No CU-OE;.CTL, was filed on October, 0, and has been stayed until June,. See Mueller Decl., ~. Thus, state law remedies which, had they been successfully prosecuted, would have obviated any claim of damage by the Plaintiff, are either still pending or have been dismissed by the Plaintiff and its malpractice attorney. Because it has either terminated or failed to prosecute these state court claims, Plaintiff is now precluded from asserting that any act or failure to act on the part of the defendants in this litigation caused them any injury. Such an assertion would indeed be mere speculation and guesswork. In the underlying litigation, Judge Huff denied the defendants' motion for attorneys' fees in the Aaron case. See Mueller Decl., ~, Ex. F W0 WEST:MMMl\ A TNTTPPI~ rru..rot A TlI..T'T'

12 1 (Opposition to Stipulation of Dismissal of Appeal with Prejudice, filed by defendant Gregory Petersen in the Ninth Circuit cases ofabbe v. City of San Diego and Browder v. City of San Diego, at its Exhibit C). Judge Huff stated, "The Court concludes that the plaintiffs' civil rights claims were not frivolous. The Court presided over extensive litigation involving the legal issues raised by plaintiffs." Id.,:-. Judge Huffs order also notes the fact that in granting summary judgment on the federal claims, the District Court declined to continue to exercise supplemental jurisdiction and dismissed the state claims without prejudice. "The Court's Order noted that plaintiffs were free to pursue their state claims in state court where significant litigation over the same issues is ongoing." Id., :-. Judge Huff also noted that the state claims were dismissed for reasons "that have nothing to do with the probability of success on the merits." Id.,:-. Because of the pendency of those state claims, Judge Huff found that the defendants had not prevailed and were not entitled to attorneys' fees. Now, because the Plaintiff has chosen to dismiss these state claims, their eventual outcome must necessarily be left to speculation and conjecture, a fact that is fatal to this malpractice claim. 1 Finally, Plaintiff cannot seriously assert that it knows what motivated the City or that the City would not have taken other steps to reduce the pay and/or retirement benefits if only the ghostly legal argument had been made. The City was facing more than a billion dollar deficit as a result of pension plan liabilities. Simply put, Plaintiff cannot show that "but for" Jackson DeMarco's alleged negligence, it is more likely than not that the District Court and the Ninth Circuit would have reached a different result, or that the Ninth Circuit's decision caused the City to reduce the compensation package, when the City had already stated, before the litigation had been filed, that it intended to do so. Consequently, Plaintiffs lawsuit fails as a matter oflaw and should be dismissed. W0-WEST:MMMl\

13 II. STATEMENT OF FACTS The two legal malpractice actions at issue in this demurrer both arise out of Jackson DeMarco's alleged representation of the SDPOA and its members in litigation against the City and others involving retirement health benefits. See Complaint,, ; see also Mueller Dec!., Ex. A at,. The underlying litigation allegedly took place between 0 and 0. See id. Additional information regarding the allegations of the two legal malpractice actions is provided below. 1 1 The plaintiffs in the Ellis case allege that they are police officers employed by the City, and they purport to sue as class representatives on behalf of themselves and over 1,00 of their fellow police officers. See id., Ex. A at" 1,. The defendants in the Ellis case include Jackson DeMarco, as well as five attorneys who previously worked at Jackson DeMarco. See id., Ex. A at" -. According to the plaintiffs in the Ellis case, they and their fellow officers retained the defendants in 0 and 0 "to handle a legal matter related to the implementation by the City of a last, best, and final offer" to the SDPOA. Id., Ex. A at,. They allege that the defendant attorneys filed litigation against the City on behalf of W0-WEST:MMMI \0000. A. The Ellis Case On February,, the members of the SDPOA, represented by attorney Michael A. Conger, filed a complaint captioned Christopher Ellis, et ai. v. Jackson, DeMarco, Tidus & Peckenpaugh, A Law Corp., et ai., Case No CU PN-CTL, in San Diego Superior Court (the "Ellis case"). See Mueller Decl., Ex. A. The Ellis case has been assigned to Judge Ronald S. Prager. -,ATNTTFF'S rompt.atnt

14 the Plaintiffs as individuals, and also on behalf of the SDPOA. See id., Ex. A at ~. According to the complaint, "[o]ne of the claims prosecuted" in the underlying litigation "involved the City's imposition of eligibility requirements for SDPOA members, including the plaintiffs, for health insurance after retirement (,retiree health')," Id., Ex. A at ~. The plaintiffs in the Ellis case allege the defendant attorneys "took the legal position that, because retiree health was a vested benefit, it could not be unilaterally modified by the City, and the City's imposition" of its last, best, final offer "was unconstitutional." Id., Ex. A at ~. The plaintiffs in the Ellis case allege that the defendant attorneys breached their duty of care by "fail[ing] to investigate, discover, present, and argue available factual evidence and legal precedent which would have established that, in fact, retiree health was 1 a vested benefit which the City could not unilaterally impair." Id., Ex. A at ~ 1. They argue that "[a]s a result of the negligence ofthe defendant attorneys in bringing and in poorly prosecuting the retiree health issue, the United States District Court for the Southern District of California and the United States Court of Appeals for the Ninth Circuit ruled that retiree health benefits are not vested." Id., Ex. A at ~. Moreover, the City later "rel[ied] on those legal rulings" by "substantially reduc[ing] the retiree health 1 benefit by imposing a cap of $,0 per year for any SDPOA member retiring after July 1, 0." Id., Ex. A at ~. Accordingly, as a result ofthe alleged negligence by the defendant attorneys, situated fellow police officers "have already sustained damages in excess of$ million." Id., Ex. A at ~. W0-WEST:MMMI \0000. the plaintiffs in the Ellis case allege that they and approximately 1,00 of their similarly - TO PI,A TNTlFF'~ rnmpt. A TNT

15 B. The SDPOA Case On March,, the SDPOA filed this Complaint against Jackson DeMarco and two of its attorneys (one former, and one current) asserting a single cause of action for legal malpractice. Gregory Glenn Petersen is the former attorney, and is being represented by separate counsel The SDPOA is represented by the same attorney, Michael A. Conger, who is representing the members of the SDPOA in the Ellis case. As in the Ellis case, the Complaint alleges Jackson DeMarco represented the SDPOA in the same underlying litigation against the City. See Complaint". In 1 paragraph of the Complaint, the SDPOA generally alleges nine different breaches of the duty of care, one ofwhich is Jackson DeMarco's alleged failure "to present sufficient evidence to prevail on the retiree health claim in SDPOA v. Aguirre, et al., although such evidence existed, resulting in a reduction of retiree health benefits to SDPOA members." Id. at ~ l1(b). As a result of these and the other alleged breaches of the duty of care, the SDPOA seeks damages, including the fees it paid to Jackson DeMarco in the underlying litigation. See id. at p., ~. 1 On the same day the SDPOA filed its Complaint in this case, it also filed a Notice of Related Cases that addresses the overlap between this case and the Ellis case. In its Notice ofrelated Cases, the SDPOA concedes the following overlap between the two cases: (1) they both involve two "identical defendants" (Jackson DeMarco and Petersen); () they both "arise from the same or substantially identical transactions and events, requiring determination of substantially identical questions of law and fact"; and () they "are likely to require substantial duplication ofjudicial resources ifheard by different judges." Notice of Related Cases at p. 1, lines -. W0-WEST:MMMl\ TO PT,ATNTTFF'''i. rompt A ThTT'

16 III. LEGAL STANDARD ON A DEMURRER 1 A demurrer is proper when there is another action pending between the same parties on the same cause of action. Code Civ. Proc. 0.(c); see also Bistawros v. Greenberg () Ca1.App.d, (tlan objection to a complaint on the basis that a substantially similar lawsuit is pending is properly raised by demurrer."). A cause of action is the same if the prior and present actions are based on the violation of the same right, even though the relief sought in the actions may be different. Carroll v. Puritan Leasing Co. () Cal.App.d 1,. When the demurrer is based on the existence of another action pending, the court may take notice of the other pending suit. Cal. Union Ins. Co. v. Trinity River Land Co. Inc. (0) Cal.App.d, ; see also Code Civ. Proc. 0.0 (permitting judicial notice on demurrer). When such a demurrer is sustained, the court should enter an interlocutory judgment in favor of the defendant in the second action. See Code Civ. Proc.. 1 A demurrer is also appropriate if a "pleading does not state facts sufficient to constitute a cause ofaction." Code Civ. Proc. 0.( e); Bockrath v. Aldrich Chemical Co. (1) Cal.th 1,. "Although a court must on demurrer accept as true properly pleaded facts, a demurrer does not admit contentions or conclusions of law or fact." Freeman v. San Diego Ass'n of Realtors (1) Cal.AppAth 1, n.ll. A demurrer can also be based on matters subject to judicial notice. See Code Civ. Proc., 0.0(a). Pursuant to Evidence Code section (d), a court can take judicial notice ofthe court records of any court ofrecord in the United States. When court records subject to judicial notice disclose an absolute defense to an action or a deficiency in the complaint, the matter can be adjudicated by way of demurrer. See Bistawros, CaLApp.d at. Leave to amend should be denied where any amendment would be futile. See Davaloo v. State Farm Insurance Co. (0) 1 Cal.AppAth 0,-. W0-WEST:MMMl\ TO PLAINTIFF'S COMPLAINT

17 IV. JACKSON DEMARCO'S DEMURRER SHOULD BE SUSTAINED BECAUSE THIS ACTION IS DUPLICATIVE OF THE ELLIS CASE. 1 Here, the SDPOA and the plaintiffs in the Ellis case are bringing the exact same claim for legal malpractice. As set forth above, both complaints allege the same purported wrongdoing by Jackson DeMarco (failing to properly prosecute the claim regarding retirement health benefits), and both seek damages based on that alleged wrongdoing. Pursuant to Code of Civil Procedure section 0.(c), that is improper, because the same plaintiff cannot pursue the same claim against the same defendant in multiple, successive actions. Permitting such pleading would risk inconsistent results, would waste judicial resources, and would permit the harassment of defendants like Jackson DeMarco. See Steigerwald v. Godwin () Cal.App.d 1,. 1 The SDPOA's Notice of Related Cases essentially concedes the propriety of this demurrer, and goes on to suggest that as a result of the similarity between this case and the Ellis case, this case should be transferred to Judge Prager (since the Ellis case was filed first). See id. at p. 1, lines - (admitting that both cases "arise from the same or substantially identical transactions and events, requiring determination of substantially identical questions of law and fact, II and both cases are also "likely to require substantial duplication ofjudicial resources if heard by different judges ") and p. (proposing transfer to Judge Prager). However, merely transferring this case to Judge Prager does not change the fact this case was improperly filed in the first instance. Simply put, the defendants and the Court should not be forced to construct case management solutions in response to the SDPOA's improper decision to file a duplicative second lawsuit. Instead, Jackson DeMarco's demurrer to the second lawsuit should be sustained. W0-WEST:MMMI \ TO PLAINTIFF'S COMPT.ATNT

18 I In response to this demurrer, the SDPOA may contend Code ofcivil Procedure section 0.(c) does not apply because the "same parties" are not involved in both cases (i.e., the plaintiffs in the Ellis case are the members of the SDPOA, whereas the plaintiffs in this action is the SDPOA itself). This is a distinction without a difference, however, because the SDPOA and its members are in privity with one another. See Anaheim Elem. Educ. Assln v. Board of Educ. () Cal.App.d 1 () (noting it is "settled" that a labor association is in privity with its members and can bring suit on behalf of its members in an action founded on their employment). Just as one party is not permitted to "split" its cause of action by pursuing relief for the same primary right in two separate lawsuits, see Crowley v. Katleman () Ca1.th,1, so too are privies prohibited from splitting a cause ofaction. See Steigerwald, Ca1.App.d at. 1 V. JACKSON DEMARCO'S DEMURRER SHOULD ALSO BE SUSTAINED BECAUSE PLAINTIFF HAS NOT PLED, AND CANNOT PLEAD, FACTS IN SUPPORT OF THE CAUSATION AND DAMAGES ELEMENTS OF A CLAIM FOR LEGAL MALPRACTICE. 1 A. To Prevail on a Claim for Legal Malpractice, the Plaintiff Must Prove That the Defendant Caused the Plaintiffs Harm. The elements of a cause of action for professional negligence are: (1) the duty ofthe professional to use such skill, prudence and diligence as other members ofthe profession commonly possess and exercise; () breach ofthat duty; () a causal connection between the negligent conduct and the resulting injury; and () actual loss or damage resulting from the professional negligence. See Shopoff & Cavallo LLP v. Ryon (0) Ca1.AppAth, 0. A claim for breach of contract also requires the plaintiff to prove that the defendant's breach caused the plaintiff to suffer damages. See St. Paul W0 WEST:MMMl\ TO PT A ThJTllR'<;! rn1l./lut A ntt

19 I Fire & Marine Ins. Co. v. American Dynasty Surplus Lines Ins. Co. (0) 1 Ca1.App.th, 0 ("An essential element of a claim for breach of contract are damages resulting from the breach... Causation of damages in contract cases requires that the damages be proximately caused by the defendant's breach."). The same causation test applies to both professional negligence and breach of contract claims. See Vaxiion Therapeutics, Inc. v. Foley & Lardner LLP (S.D.Cai. 0) 0 WL 1, *. 1 1 It is well-settled that ifthe attorney's negligent conduct does not cause damage, it generates no cause of action. See Shop off, Cal.App.th at 0. To show damages proximately caused by the breach, the plaintiff must demonstrate that "but for" the attorney's malpractice, it is more likely than not the plaintiff would have obtained a more favorable result. See id.; see also Viner, 0 Ca1.th at 10-. "Unless a party suffers damage as a consequence of his attorney's negligence, he cannot establish a cause of action for malpractice.. " Breach of duty causing only speculative harm is insufficient to create such a cause of action... [D]amages may not be based upon sheer speculation or surmise, and the mere possibility or even probability that damage will result from wrongful conduct does not render it actionable." Thompson v. Halvonik () Cal.App.th, As the California Supreme Court made clear in the seminal Viner case, "the crucial causation inquiry is what would have happened if the defendant attorney had not been negligent. This is so because the very idea ofcausation necessarily involves comparing historical events to a hypothetical alternative." Viner, 0 CaL th at (emphasis in original). Although the label of the test may differ from case to case, the rule underlying the test is always the same: to prevail on a malpractice claim, the plaintiff must ) The Plaintiffs caption their claim as one for "attorney malpractice,rt and thus it is not clear ifthey intend to pursue a negligence theory, a breach of contract theory, or both. See Co.mplaint, p.. Regardless of whether Plaintiffs pursue a tort or contract claim, however, the same causation standard applies. W0-WEST:MMMI\ TO PLAINTIFF'S COMPLAINT

20 demonstrate that the attorney's negligence caused the plaintiff's harm. See Viner at 10, na (noting that the causation inquiry is also sometimes described as the "case within the case," or the "trial within the trial"). B. Causation in a Legal Malpractice Case Is Appropriately Treated as an Issue of Law, Rather Than Fact, When the Underlying Litigation Was Decided Based on a Question of Law. 1 1 The element of causation in a legal malpractice case is treated as an issue of law which the underlying litigation was decided on a question of law. As one California court has explained, "'no jury can reach its own judgment on the proper outcome of an earlier case that hinged on an issue of law.'" Piscitelli v. Friedenberg (01) Cal.AppAth,, quoting with approval from Chocktoot v. Smith (Ore. ) 1 P.d 1, ; see also id. at 1 (explaining that "[i]n legal malpractice cases, whether a court or jury decides the underlying case-within-a-case [turns on] whether the issues are predominately questions of fact or law"). A leading malpractice treatise concurs with this view. See Ronald E. Mallen and Jeffrey M. Smith, LEGAL MALPRACTICE, Fifth Edition, VoL,. (00) (explaining that "if causation depends on a legal ruling, the issue usually presents a question of law. For instance, whether an appeal should have succeeded presents an issue oflaw."). C. The Plaintiff Cannot Establish That Had Defendants 'Made A Different Argument, The Plaintiff Would Have Obtained a More Favorable Outcome. Plaintiff's causation allegation against the defendants is not merely tenuous, it is non-existent. First, the Plaintiff alleges that it was adversely affected before the lawsuit was filed and Jackson DeMarco and Mr. Malik were retained, when the City implemented its last, best, final offer at the bargaining table, which had the effect of W0-WEST:MMMl \ TO PLAINTIFF'S COMPl.ATNT

21 reducing retirement health benefit. The defendants cannot be responsible for the City's bargaining position, and the complaint concedes that Jackson DeMarco and Mr. Malik were retained only later and in response to the City's reduction of the health benefits. See Mueller Decl., Ex. A at.,-r. 1 Second, Plaintiff alleges that because Jackson DeMarco did not cite unidentified facts or make unidentified arguments or cite unidentified precedent, Judge Huff and the unanimous Ninth Circuit panel wrongly decided that the retirement health benefits were not vested. See id., ~. Yet both Judge Huff and the Ninth Circuit thoroughly examined all California decisions and all pertinent legal principles in reaching their decisions. Both recognized that there were two California appellate decisions - Cal. League of City Employee Ass'ns v. Palos Verdes Library Dist. () Cal.App.d 1, and San Bernardino Pub. Employees Ass'n v. City of Fontana () Cal.AppAth - that had reached conflicting results as to whether longevity-based benefits such as retirement health were or were not vested. After extensive analysis, both Judge Huff and the unanimous Ninth Circuit panel decided that the San Bernardino case was the better reasoned, and that the retirement health benefits were not vested. See Mueller Decl., ~~, Exs. B, C. 1 Whether the retirement health benefits were vested was a contested issue of law, the opposing parties in the underlying action were represented by very able counsel (the law firms of Latham & Watkins and Seltzer Caplan McMahon Vitek), and the persons deciding the contested legal issue were four accomplished judges. After considering the law, those judges unanimously ruled that as a matter of law, the benefits were not vested. Plaintiff cannot possibly satisfy its burden of proving by a preponderance of the evidence that this result was the fault of the defendants, i.e., that had the defendants only done something different, it is more likely than not that Judge Huff and three Ninth Circuit W0-WEST:MMMl\ TO PLAINTIFF'S COMPLATNT

22 judges would have ruled differently. See Shopoff, Cal.App.th at 0; Viner, 0 Ca1.th at 10-. That is pure speculation, and is a question oflaw for this Court. In addition, the same fatal flaw arises because the Plaintiffs, and their present attorney, have dismissed state law claims, and are attempting to dismiss appeals in the Ninth Circuit relating to other claims, that could have, ifprosecuted, precluded any claim ofmalpractice. See Mueller Decl., ~. By dismissing those claims, the Plaintiff has made it impossible to demonstrate "but for" causation in this case. Ifthe Plaintiff has suffered any harm, it has been on account of its own actions that have nothing to do with Jackson DeMarco. 1 Lastly, it is frivolous for Plaintiff to contend that the defendants should bear responsibility for the City's decision to amend its Municipal Code and impose an $,00 cap on annual retirement health benefits. See Mueller Dec!., ~~ -, Exs. D, E. Jackson DeMarco has no control over the City, and because ofthe City's own fmancial predicament, the City had already decided to reduce the police officers' retirement health benefits before the underlying lawsuit had even been filed. 1 VI. CONCLUSION For the foregoing reasons, Jackson DeMarco respectfully requests that the Court sustain its demurrer to the Complaint without leave to amend. The SDPOA's claim for legal malpractice is duplicative ofthe same claim for relief stated by the members of the SDPOA in the Ellis case, and as a result an interlocutory judgment should be entered in favor of Jackson DeMarco and Mr. Malik stating that no trial shall be had in this case until the Ellis case has been concluded. See Code of Civ. Proc.. In addition, Plaintiff W0-WEST:MMMl\ TO Pl.ATNT1FF'R [,()MPT. A ThlT

23 cannot satisfy the causation and damages elements of a malpractice claim, and as a result their complaint fails to state a claim for relief. DATED: May, SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 1 1 By GORY A.LONG MAT EWW.HOLDER MATTHEW M. MUELLER Attorneys for Defendants JACKSON, DeMARCO, TIDUS & PECKENPAUGH, A LAW CORPORATION and MOHAMED ALIM AHMAD MALIK W0 WEST:MMMl\ T() Pl,A lntil<'l<"~ rompt i1 NT

24 San Diego Police Officers Association v. Jackson, DeMarco, Tidus & Peckenpaugh, et al. San Diego Superior Court Case No CU-PN-CTL PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO I am employed in the County ofsan Diego; I am over the age of eighteen years and not a party to the within entitled action; my business address is EI Camino Real, Suite 0, San Diego, California 0-0. On May,, I served the following document(s) described as: DEFENDANTS JACKSON, DEMARCO, TIDUS & PECKENPAUGH AND MOHAMED ALIM AHMAD MALIKtS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFtS COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT on the interested party(ies) in this action byplacing true copies thereof enclosed in sealed envelopes and/or packages addressed as follows: See Attached Service List ~ BY MAIL: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day with postage thereon fully prepaid at San Diego, California in the ordinary course ofbusiness. I am aware that on motion ofthe party served, service is presumed invalid ifpostal cancellation date or postage meter date is more than one day after date ofdeposit for mailing in affidavit. 0 BY OVERNIGHT DELIVERY: I served such envelope or package to be delivered on the same day to an authorized courier or driver authorized by the overnight service carrier to receive documents, in an envelope or package designated by the overnight service carrier. 0 BY FACSIMILE: I served said document(s) to be transmitted by facsimile pursuant to Rule.0 ofthe California Rules of Court. The telephone number of the sending facsimile machine was The name(s) and facsimile machine telephone number(s) of the person(s) served are set forth in the service list. The sending facsimile machine (or the machine used to forward the facsimile) issued a transmission report confirming that the transmission was complete and without error. Pursuant to Rule.0(h)(), a copy of that report is attached to this declaration. 0 BY HAND DELIVERY: I caused such envelope(s) to be delivered by hand to the office of the addressee(s). ~ STATE: I declare under penalty ofpeljury under the laws ofthe State of California that the foregoing is true and correct. 0 FEDERAL: I declare that I am employed in the office ofa member ofthe bar of this Court at whose direction the service was made. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on May,, at San Diego, California. L. Thomas W0-WEST:JLB 1\0.1-1 F OF SERVTf:F