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Stueve v. Kahn

California Court of Appeal, Fourth District, Third Division

December 18, 2013

Ruth McClamma STUEVE et al., Plaintiffs and Appellants,
v.
Berger KAHN, Defendant and Respondent.

Appeal from an order of the Superior Court of Orange County, Nancy Wieben Stock, Judge. Reversed. (Super.Ct. No. 30-2010-00411651)

Page 328

COUNSEL

[165 Cal.Rptr.3d 878] Daily Law Group, Irvine, James D. Daily; Keobopha Keopong; Barnes Law and Robert E. Barnes for Plaintiffs and Appellants.

Gladstone Michel Weisberg Willner & Sloane, Marina Del Rey, and Allen L. Michel for Defendant and Respondent.

OPINION

MOORE, J.

Page 329

This is one of three appeals concerning a purported Ponzi scheme set up by Attorneys Raymond A. Novell and Jay Wayne Allen to siphon off the assets of the Stueve family— the " heirs" (in lay terms) to the Alta Dena Dairy fortune (Stueves). This particular appeal challenges the order granting the Civil Code section 1714.10 motion of Attorney Allen's law firm, Berger Kahn, to strike the conspiracy allegations of the Stueves's second amended complaint. [1]

Civil Code section 1714.10 was enacted to combat " the use of frivolous conspiracy claims that were brought as a tactical ploy against attorneys and their clients and that were designed to disrupt the attorney-client relationship. [Citations.]" ( Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 816, 32 Cal.Rptr.3d 325.) To achieve this goal, the statute performs a " gatekeeping" function and requires a plaintiff to establish a reasonable probability of prevailing before he or she may pursue a " cause of action against an attorney for a civil conspiracy with his or her client arising from any attempt to contest or compromise a claim or dispute." (Civ.Code, § 1714.10, subd. (a).) The statute does not impede a plaintiff's pursuit of the type of claims we have here— potentially meritorious claims against a law firm that allegedly conspired to abscond with its clients' assets. We reverse.

I

FACTS

The Stueves filed a 331-page second amended complaint against Attorney Novell, Attorney Allen, Berger Kahn, and dozens of others. The causes of action against Berger Kahn included fraud by intentional misrepresentation, fraud by concealment, negligent misrepresentation, constructive fraud, conversion, breach of fiduciary duty, professional negligence, violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) (

Page 330

18 U.S.C. § 1961 et seq.), violations of the prudent investor rule, financial elder abuse, and ...


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