Jonathan Vega v Neil D. Levinson, et al
Jonathan Vega v Neil D. Levinson, et al
Case Number
25CV01983
Case Type
Hearing Date / Time
Mon, 01/26/2026 - 10:00
Nature of Proceedings
Defendants’ Demurrer to Plaintiff’s First Amended Complaint
Tentative Ruling
Jonathan Vega v. Neil D. Levinson, et al.
Case No. 25CV01983
Hearing Date: January 26, 2026
HEARINGS: Defendants’ Demurrer to Plaintiff’s First Amended Complaint
ATTORNEYS: For Plaintiff Jonathan Vega: Timothy D. McGonigle
For Defendants Neil D. Levinson and Law Offices of Neil D. Levinson: Michael McCarthy, Nina Niedbalski, Nemecek & Cole
TENTATIVE RULINGS:
Defendants’ demurrer to plaintiff’s first amended complaint is overruled. Defendants shall file and serve their answers to the first amended complaint no later than February 9, 2026.
Background:
This action commenced on April 1, 2025, by the filing of the original complaint by plaintiff Jonathan Vega against defendants Neil D. Levinson and Law Offices of Neil D. Levinson. On June 24, 2025, Vega filed the operative first amended complaint (FAC) against the same defendants for: (1) Legal Malpractice, and (2) Breach of Fiduciary Duty.
As alleged in the FAC:
Levinson is an attorney authorized to practice law in California. (FAC, ¶ 2.)
On April 17, 2012, Vega was convicted upon a plea of no contest of driving under the influence of drugs, in violation of Penal Code section 23152, subdivision (e), and hit and run resulting in property damage, in violation of Vehicle Code section 20002, subdivision (a). (FAC, ¶ 11.)
On May 24, 2023, Vega successfully completed a required background screening and received eligible results from U.S. Bank, at which Vega thereafter began employment as a licensed banker. (FAC, ¶ 12.) When presented the opportunity to be promoted to a financial advisor at U.S. Bank, Vega accepted. (Ibid.)
On January 12, 2024, Vega passed the Life, Accident, and Health or Sickness Examination administered by the Insurance Commissioner of the State of California and, as a result of passing the exam, was required to complete and mail the Bail Application for Insurance License. (FAC, ¶ 13.)
On January 17, 2024, Vega filed an application with the Insurance Commissioner for a license to act as an insurance producer in California, for which no license has been issued. (FAC, ¶ 14.) One of the questions for background information reads in part: “Have you ever been convicted of a misdemeanor?” (Ibid.) Vega answered “No” and failed to disclose his prior misdemeanor convictions. (Ibid.) The application was completed on Vega’s behalf by U.S. Bank’s Risk/Compliance/Audit Specialist who incorrectly answered the question. (FAC, ¶ 15.) Vega was unaware of the application submitted to the Insurance Commissioner and was not given the opportunity to review the application prior to its submission. (FAC, ¶ 16.)
On February 23, 2024, Vega’s application for an insurance license was referred to the Insurance Commissioner’s office for a background investigation. (FAC, ¶ 17.) The Insurance Commissioner requested that Vega provide: (1) a signed and dated statement detailing the circumstances surrounding the incident that led to his arrest and conviction, including why Vega failed to disclose the conviction, (2) a copy of the incident narrative/police report from the law enforcement agency, and (3) a certified copy of all court case documents. (Ibid.)
On February 26, 2024, Vega responded to the Insurance Commissioner’s request for information, admitted the misdemeanor convictions, and completed the stipulations of the case resolutions. (FAC, ¶ 18.)
On April 4, 2024, the Insurance Commissioner denied Vega’s application, issued a Statement of Issues, and notified Vega that he must present satisfactory evidence to the Commissioner that Vega is qualified for the license for which Vega applied, as provide for in Insurance Code section 1666, and show that none of the matters set forth in Insurance Code section 1668 apply to Vega. (FAC, ¶ 19.)
On April 12, 2024, Vega submitted a Notice of Defense to the Insurance Commissioner to request a hearing on the matter to permit him to present his defense to the allegations contained in the Statement of Issues. (FAC, ¶ 20.)
On June 3, 2024, Vega retained the services of defendants to represent him regarding whether he should enter into a Stipulation and Waiver with the Insurance Commissioner as a means of achieving a full and final resolution of the Statement of Issues filed against Vega. (FAC, ¶ 22.)
Defendants incorrectly advised Vega to submit the Stipulation and Waiver with the Insurance Commissioner which would result in a restriction on Vega’s record for only six months. (FAC, ¶ 23.) Defendants failed to advise Vega that the Department of Insurance would issue a restriction on his insurance license for a minimum of 10 years and that the restriction would remain permanently public on Financial Industry Regulatory Authority if Vega submitted to the Stipulation and Waiver with the Insurance Commissioner. (FAC, ¶ 24.) Pursuant to defendants’ advice, Vega signed and submitted the Stipulation and Waiver with the Insurance Commissioner to deny Vega’s application for an insurance license and waive his right to a hearing, resulting in issuance of a restriction on his public record. (FAC, ¶ 25.)
As a result of the conduct of defendants, Vega is unable to obtain employment with any Broker or Dealer agencies as a financial advisor since such companies are aware of the negative reporting. (FAC, ¶ 28.)
Vega was offered an entry level position at Charles Schwab which was later retracted because of defendants’ actions. (FAC, ¶ 29.) Vega would have earned significantly more income had he been able to take the position. (Ibid.) The restriction has effectively barred Vega from utilizing his years of education, training, and investment in obtaining relevant qualifications. (Ibid.)
On August 4, 2025, defendants filed the present demurrer to the second cause of action, for breach of fiduciary duty, on the grounds that Vega fails to allege sufficient facts to constitute a cause of action. The basis of the argument is that the second cause of action is duplicative of the first cause of action.
Vega opposes the demurrer.
Analysis:
“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:
“(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.
“(b) The person who filed the pleading does not have the legal capacity to sue.
“(c) There is another action pending between the same parties on the same cause of action.
“(d) There is a defect or misjoinder of parties.
“(e) The pleading does not state facts sufficient to constitute a cause of action.
“(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.
“(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.
“(h) No certificate was filed as required by Section 411.35.” (Code Civ. Proc., § 430.10.)
“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30, subd. (a).)
“[A] court must treat a demurrer as admitting all material facts properly pleaded, it does not, however, assume the truth of contentions, deductions or conclusions of law.” (Travelers Indem. Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 358, citing Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)
“If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. “ ‘[W]e are not limited to plaintiffs’ theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. The courts of this state have . . . long since departed from holding a plaintiff strictly to the ‘form of action’ he has pleaded and instead have adopted the more flexible approach of examining the facts alleged to determine if a demurrer should be sustained.’ ” [Citations.]” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39.)
“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)
A demurrer searches for defects in the allegations of the pleading. “A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.” (Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879.)
As noted above, defendants demur to the second cause of action for breach of fiduciary duty. Defendants argue that it is duplicative of the first cause of action for legal malpractice. It is not. In fact, defendants’ own memorandum of points and authorities appears to acknowledge this fact.
“ ‘[A] breach of fiduciary duty is a species of tort distinct from a cause of action for professional negligence. [Citations.]’ ” (Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1534.)
Alternative theories of liability are permissible. (see Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1388.)
“The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, breach of fiduciary duty, and damages. [Citation.] The elements of a cause of action for professional negligence are (1) the existence of the duty of the professional to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) breach of that duty; (3) a causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional negligence.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820-821.)
In addition to the allegations of the FAC that are set forth above, Vega alleges:
“By virtue of the relationship that existed between Plaintiff and the Defendants, Plaintiff having placed trust and confidence in the Defendants as his attorneys, a fiduciary relationship existed at all times herein mentioned between Plaintiff and Defendants.” (FAC, ¶ 42.)
“By virtue of the attorney-client relationship, Defendants owed Plaintiff a fiduciary duty to act with the utmost good faith, loyalty, honesty, and integrity; to exercise reasonable care and skill in performing legal services; to avoid conflicts of interest; and to keep Plaintiff informed of significant developments.” (FAC, ¶ 43.)
“The Defendants breached their fiduciary duty owed to Plaintiff as alleged herein by:
“a. Failing to advise Plaintiff on the federal insurance license laws in a timely manner;
“b. Failing to advise Plaintiff to attend a hearing to defend against the false statement submitted on his insurance license application on his behalf;
“c. Failing to perform legal services with competence in violation of State Bar Rule 1.1
“d. Failing to keep Plaintiff reasonably informed of pertinent legal issues in connection with the underlying action;
“e. Failing to advise Plaintiff to attend a hearing to defend against the false statement submitted on his insurance license application on his behalf;
“f. Acting negligently in providing legal services to Plaintiff.” (FAC, ¶ 44.)
“As a direct and proximate result of Defendants’ breaches of fiduciary duty, Plaintiff has suffered and continues to suffer damages, including but not limited to the loss or suspension of his insurance license, harm to his professional reputation, loss of income and business opportunities, and the costs associated with attempting to remedy the legal and professional consequences of Defendants’ misconduct.” (FAC, ¶ 45.)
“As a result of Defendants’ conduct, Plaintiff has been damaged in an amount according to proof.” (FAC, ¶ 46.)
First Element: Fiduciary Relationship
The first element of breach of fiduciary duty is the existence of a fiduciary relationship. Defendants do not dispute the existence of a fiduciary relationship.
“ ‘The relation between attorney and client is a fiduciary relation of the very highest character, and binds the attorney to most conscientious fidelity - uberrima fides.’ ” [Citations.]” (Fair v. Bakhtiari (2011) 195 Cal.App.4th 1135, 1140–1141.)
The first element is adequately pled.
Second Element: Breach of Fiduciary Duty
Among the fiduciary responsibilities an attorney owes to a client are:
“(a) A lawyer shall:
“(1) promptly inform the client of any decision or circumstance with respect to which disclosure or the client’s informed consent is required by these rules or the State Bar Act;
“(2) reasonably consult with the client about the means by which to accomplish the client’s objectives in the representation;
“(3) keep the client reasonably informed about significant developments relating to the representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed; and
“(4) advise the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
“(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
“(c) A lawyer may delay transmission of information to a client if the lawyer reasonably believes that the client would be likely to react in a way that may cause imminent harm to the client or others.
“(d) A lawyer’s obligation under this rule to provide information and documents is subject to any applicable protective order, non-disclosure agreement, or limitation under statutory or decisional law.” (Cal. Rules Prof. Conduct, rule 1.4.)
Here, the FAC contains allegations, set forth above, that defendants breached their fiduciary duty to Vega in numerous ways. Whether or not Vega proves the alleged breach of fiduciary duty is for the trier of fact. “Breach of duty is usually a fact issue for the jury.” (Harvey v. The Landing Homeowners Assn. (2008) 162 Cal.App.4th 809, 822.)
The second element of breach of fiduciary duty is sufficiently pled.
Third Element: Damages
Vega has unequivocally pled that he suffered damages as the result of the alleged breaches of fiduciary duty. Defendants do not contest that damages are inadequately pled. Thus, the third element of breach of duty is sufficiently pled.
The demurrer will be overruled, and defendants will be ordered to answer the FAC.