Filed 4/23/14 Holland v. Los Angeles Dependency Lawyers CA2/1 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION ONE 

MICHAEL J. HOLLAND, 

 Plaintiff and Appellant, 

 v. 

LOS ANGELES DEPENDENCY 

LAWYERS, INC., et al., 

 Defendants and Respondents. 

 B246500 

 (Los Angeles County 

 Super. Ct. No. MC023477) 

 ORDER MODIFYING OPINION 

 [NO CHANGE IN JUDGMENT] 

 

 THE COURT: 

 It is ordered that the opinion filed herein on March 26, 2014 be modified as 

follows: 

 1. On page 1, in the counsel listing for Defendants and Respondents, “Shaeffer” is 

changed to “Schaeffer.” 

 There is no change in the judgment. 

 NOT TO BE PUBLISHED. 

JOHNSON, J. CHANEY, Acting P. J. MILLER, J. *

 * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution. 
Filed 3/26/14 (unmodified version) 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION ONE 

MICHAEL J. HOLLAND, 

 Plaintiff and Appellant, 

 v. 

LOS ANGELES DEPENDENCY 

LAWYERS, INC., et al., 

 Defendants and Respondents. 

 B246500 

 (Los Angeles County 

 Super. Ct. No. MC023477) 

 APPEAL from a judgment of the Superior Court of Los Angeles County, 

Randolph Rogers, Judge. Affirmed. 

 Michael J. Holland, in pro. per., for Plaintiff and Appellant. 

 Nemecek & Cole, Jonathan B. Cole, Mark Shaeffer and David B. Owen for 

Defendants and Respondents. 

_____________________ 
3 

 Michael J. Holland appeals from a judgment dismissing his first amended 

complaint, following the trial court’s sustaining of a demurrer without leave to amend. 

 The first amended complaint (FAC), filed by Holland in propria persona on 

August 27, 2012, alleged that Los Angeles Dependency Lawyers, Inc. (LADL), which 

represents parents of children in dependency proceedings, and several individuals, 

committed legal malpractice and breached their fiduciary duty during their representation 

of Holland after he (along with his ex-wife, Kelly Jones) was included in allegations of 

child abuse of their two young male children. Two callers to a Department of Children 

and Family Services (DCFS) hotline in 2010 stated that Jones was physically abusing the 

children, and when interviewed, the children confirmed the reports. Both Holland and 

Jones subsequently were named in a petition alleging that both parents violated Welfare 

and Institutions Code section 300, subdivisions (a), (b), and (j). 

 Holland was assigned two LADL attorneys, Rebecca Harkness and Rikka 

Fountain. Fountain failed to seek an immediate dismissal with prejudice of the claims, 

and obtained a transfer of Holland’s case to avoid the hard work involved in representing 

him. Harkness took the case over, and failed in numerous ways to represent Holland 

adequately, culminating in failing to object to a DCFS motion for dismissal without

prejudice, granted on May 23, 2011. A dismissal with prejudice would have been an 

adjudication on the merits, which would have resulted in Holland’s removal from the 

Child Abuse Central Index list (CACI), an index of all abuse reports maintained by the 

Department of Justice (DOJ). (See In re C.F. (2011) 198 Cal.App.4th 454, 463.) 

Harkness’s acceptance of the motion to dismiss without prejudice deprived Holland of a 

dismissal with prejudice, and kept him on the CACI list as a substantiated child abuser. 

This damaged his employment prospects (preventing him from continuing to work in 

security management), and also resulted in the family court’s viewing Holland and Jones 

as “co-abusers” and switching primary custody of the children to Jones. The FAC also 

alleged that LADL was inadequately staffed and provided incompetent assistance. 

Holland asked for compensatory and punitive damages. 
4 

 Holland included as an exhibit his June 2012 request under Welfare and 

Institutions Code section 388 to change a court order in the dependency case, which 

alleged that the abuse by Jones had continued, and asked for a finding that the child abuse 

allegations against him were not true and for the entry of a dismissal with prejudice. He 

also requested that the custody decision be changed to grant him sole physical custody, 

with supervised visitation to Jones. The dependency court had denied his request as not 

stating new evidence or a change in circumstances and as not promoting the best interests 

of the children, noting “matter should be referred through hot line.” 

 LADL filed a demurrer to the FAC. The demurrer argued that the complaint did 

not state a claim as (1) Holland, as a parent, did not have standing to contest or oppose 

DCFS’s request for dismissal, so that his counsel could not have proximately caused him 

damages; (2) Holland was collaterally estopped from claiming that his counsel should 

have obtained a dismissal with prejudice, as the dependency court had denied in his in 

pro. per. request to change a court order, which asked for such a dismissal; and (3) 

Holland had not alleged facts to show that he would have been removed from the CACI 

list had the case been dismissed with prejudice. After Holland opposed the demurrer and 

LADL replied, the court at a hearing on November 15, 2012 continued the matter to 

allow supplemental briefing. 

 Holland’s supplemental brief claimed that DCFS engaged in a “campaign of 

retaliation” against him because of a book he wrote in 2007, entitled “Why Husbands Kill 

Their Wives and Boyfriends Beat U[p] Their Girlfriends.” Holland acknowledged as 

“absolutely correct” what the court had stated in a tentative ruling: his name could be 

removed from the CACI list if the reporting agency notified the DOJ that the report was 

unfounded, or the children filed a written request to have his name removed. Holland 

also acknowledged that the court had correctly pointed out that as a parent he could not 

dismiss the DCFS case. For the first time, Holland claimed that LADL should have 

objected to evidence of abuse in the dependency action. 
5 

 At the hearing on December 18, 2012, counsel for LADL pointed out that there 

was no adjudication hearing in the DCFS case, so that no evidence was ever introduced 

and no objection could have been lodged; the court agreed that Holland was changing 

theories, and it would be speculation to say that Harkness should have objected before 

any evidence was presented. 

 The court sustained the demurrer without leave to amend. In its statement of 

decision, the court noted that a parent cannot present evidence once a motion to dismiss is 

filed. Further, the objective of counsel for parents in a dependency proceeding is “to 

procure the dismissal of the petition to allow the parent to raise the[] children without 

state intervention,” a goal which was achieved with the dismissal without prejudice of the 

petition. LADL was not charged with representing Holland in relation to the CACI list. 

When the dependency court stated that it deferred to the family law court to determine 

custody issues, it relinquished jurisdiction, and Holland lost his right to continued 

representation by LADL. Other avenues remained for Holland to contest his inclusion on 

the CACI list, but LADL did not have the duty or ability to represent him in an effort to 

have his name removed. As LADL fulfilled its legal duties to Holland, he could not state 

facts sufficient for a cause of action for professional negligence or a violation of fiduciary 

duty. Holland timely appealed. 

 We review de novo the sustaining of a demurrer. (Smiley v. Citibank (1995) 11 

Cal.4th 138, 145–146.) We review for an abuse of discretion a court’s denial of leave to 

amend. (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1040–1041.) Holland has 

the burden to establish that the trial court abused its discretion in refusing to allow 

amendment. (Id. at p. 1041.) “[W]hen [a demurrer] is sustained without leave to amend, 

we decide whether there is a reasonable possibility that the defect can be cured by 

amendment: . . . if not, there has been no abuse of discretion and we affirm.” (Blank v. 

Kirwan (1985) 39 Cal.3d 311, 318.) 

 To state a claim for legal malpractice, Holland must allege a duty by LADL, a 

breach of that duty, a proximate causal connection between the breach and resulting 
6 

injury, and actual loss or damage as a result. (Coscia v. McKenna & Cuneo (2001) 25 

Cal.4th 1194, 1199.) A claim for breach of fiduciary duty requires a fiduciary duty, a 

breach thereof, and damages as a result. (Stanley v. Richmond (1995) 35 Cal.App.4th 

1070, 1086.) 

 Holland admits that LADL did not have a duty (and he had no standing) to obtain 

a dismissal with prejudice in the dependency court, and he also admits that LADL cannot 

do anything about his CACI listing, now that the case has been dismissed. This 

constitutes an admission that the demurrer to the FAC was properly sustained without 

leave to amend as to the original causes of action, as without a duty by LADL, Holland 

can state neither a claim for malpractice nor for breach of fiduciary duty. 

 Instead, Holland focuses on his new theory, that he was denied timely objections 

in the dependency court to evidence that was used by the family law court in the custody 

proceedings. This is without merit. First, he had no right to present evidence in the 

dependency court, because the court granted the motion to dismiss. (In re Eric H. (1997) 

54 Cal.App.4th 955, 965.) Further, no evidence had been introduced at the adjudication 

hearing. Finally, LADL did not represent Holland in family law court, where the custody 

decisions were made, and so no claim for violation of duty can be made against LADL. 

 The trial court did not err in sustaining the demurrer, and it was not an abuse of 

discretion to deny leave to amend. 
7 

DISPOSITION 

 The judgment is affirmed. The parties shall bear their own costs on appeal. 

 NOT TO BE PUBLISHED. 

 JOHNSON, J. 

We concur: 

 CHANEY, Acting P. J. 

 MILLER, J.*

 * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.