Filed 8/24/26 Ghermezian v. Ruiz CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
RAYMOND GHERMEZIAN et al., B345272
Plaintiffs and Appellants, (Los Angeles County
v. Super. Ct. No. 22STCV36251)
DORLINDA RUIZ et al.,
Defendants and Respondents.
APPEAL from a judgment and order of the Superior Court
of Los Angeles County, Cherol J. Nellon, Judge. Affirmed.
Raymond Ghermezian, A Professional Law Corporation,
Raymond Ghermezian; Gelb Law and Yisrael Gelb for Plaintiffs
and Appellants.
Law Offices of Jacob Emrani and Gabriel A. Clift for
Defendants and Respondents Law Offices of Jacob Emrani and
Dorlinda Ruiz.
Bendel Law Group and Jason R. Bendel for Defendant and
Respondent Karina Padua.
_____________________
INTRODUCTION
After suing for personal injuries suffered in a slip and fall
accident, Dorlinda Ruiz grew dissatisfied with her counsel’s lack
of communication and switched attorneys from Raymond
Ghermezian1 to The Law Offices of Jacob Emrani (Emrani).
After Ruiz settled her action, Emrani placed the settlement funds
into its client trust account, notified Ghermezian of the
settlement and acknowledged Ghermezian’s fee claim, and
initiated discussions over the value of that claim. No resolution
was reached and Ghermezian sued both Ruiz and Emrani.
Ghermezian later also named as a defendant Karina Padua, an
attorney at the Emrani firm who handled Ruiz’s personal injury
action and was representing Emrani and Ruiz in Ghermezian’s
action.
The trial court granted summary judgment to Emrani
under Code of Civil Procedure2 section 437c and, a few days later,
Ghermezian accepted Ruiz’s section 998 offer of judgment for
$7,500, which was conditioned on dismissal of Emrani and
Padua. Despite its acceptance of the section 998 offer,
Ghermezian did not file any dismissal. Padua, contending that
Ghermezian’s claim against her was frivolous, filed a motion for
sanctions under section 128.7. Ghermezian still refused to
dismiss Padua, and the trial court granted Padua sanctions. The
court also eventually entered a judgment of dismissal in favor of
Emrani and awarded Emrani costs.
1 We will collectively refer to Raymond Ghermezian and his
professional law corporation as “Ghermezian.”
2 Unspecified statutory references are to the Code of Civil
Procedure.
2
Ghermezian contends there were triable issues precluding
summary judgment, and asks us to reverse the judgment in
Emrani’s favor including its award of costs to Emrani.
Ghermezian also contends the trial court erred in granting
Padua’s sanctions motion. We see no merit in these arguments
and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Ruiz Retains Ghermezian to Represent Her in
Connection with a Personal Injury Claim
In 2018, Ruiz retained Ghermezian to represent her on a
contingency basis to pursue recovery for personal injuries she
suffered from a fall in a store. The retainer agreement entitled
Ghermezian to the “reasonable value” of its services in the event
it was discharged.
B. Ruiz Terminates Ghermezian and Retains Emrani;
Ruiz Settles her Personal Injury Claim; Emrani and
Ghermezian Discuss the Value of Ghermezian’s Fee
Claim
On September 9, 2019, Ruiz discharged Ghermezian and
retained Emrani to represent her. Two days later, Ghermezian
served a lien “for the reasonable value of [its] attorney’s fees and
costs/monies advanced . . . to [Ruiz]” on defense counsel in Ruiz’s
action.
On January 26, 2021, Ruiz settled her personal injury
claim for $50,000. Emrani received the settlement check on
February 23, 2021, and deposited it into its client trust account.
In March 2021, Emrani’s lien negotiator sent five e-mails to
Ghermezian asking for “a breakdown” of its fees and costs in
3
Ruiz’s action. Ghermezian did not respond with information
about its fees but did state that it had advanced $413 in costs.
C. Ghermezian Sues Ruiz and Emrani for a Share of the
Settlement Proceeds and Later Adds Padua as a
Defendant
In November 2022, Ghermezian sued Ruiz and Emrani
over its fee claim. According to Ghermezian’s operative second
amended complaint, filed on October 25, 2023, Ruiz retained
Ghermezian on or about April 18, 2018, to pursue a recovery for
injuries Ruiz sustained in an accident at a store. Ghermezian
filed a lawsuit on behalf of Ruiz against the store on or about
January 23, 2019. After Ruiz terminated Ghermezian and
retained Emrani to represent her, Ghermezian served Emrani
with a lien on any recovery by Ruiz for the reasonable value of its
professional services.3
Ghermezian asserted claims against Ruiz for breach of
contract, declaratory relief, and quantum meruit,4 claims against
3 Ghermezian attached a copy of its lien to the second
amended complaint. Although the proof of service accompanying
the lien did not include Emrani, Ghermezian alleged the lien was
served on Emrani. Whether Ghermezian served a notice of its
lien on Emrani does not impact our analysis. “Unlike a judgment
creditor’s lien, which is created when the notice of lien is filed
[citation], an attorney’s [fee] lien is a ‘secret’ lien; it is created and
the attorney’s security interest is protected even without a notice
of lien.” (Carroll v. Interstate Brands Corp. (2002) 99 Cal.App.4th
1168, 1172.)
4 The captions indicate the first three claims were asserted
against Ruiz and the Doe defendants, but the claims do not
include any allegations against the Doe defendants.
4
Ruiz, Emrani, and Doe defendants for unjust enrichment, money
had and received, and conversion, and claims against Emrani and
Doe defendants for intentional interference with contractual
relations. Ghermezian sought compensatory damages,
declaratory relief, and punitive damages.
Emrani and Ruiz were represented by Padua in the action.
On January 26, 2024, Ghermezian filed a Doe amendment
naming Padua as a defendant in her individual capacity.
D. The Trial Court Grants Emrani’s Motion for
Summary Judgment
On February 15, 2024, Emrani moved for summary
judgment. As relevant here, Emrani adduced the following
evidence. Ruiz decided to terminate Ghermezian because it had
failed to communicate with her in 2018 and 2019. On
September 9, 2019, Ruiz called Emrani and retained it; Ruiz had
not previously communicated with Emrani. The next day,
Emrani sent a letter notifying Ghermezian of the retention and
requesting information about Ghermezian’s time spent on the
case and the costs it had incurred. Ruiz settled her personal
injury claim on January 26, 2021, and on February 23, 2021,
Emrani received the settlement check and deposited it into its
client trust account. From March 11 to 23, 2021, Emrani asked
Ghermezian for a breakdown of its fees and costs in Ruiz’s action,
but Ghermezian did not provide the information. On April 13,
2021, Ghermezian demanded $413 for its costs incurred in Ruiz’s
action. On August 10, 2021, Ruiz agreed with Emrani that
$22,500 of the settlement would be allocated to attorney’s fees;
that amount and the amount of costs claimed by Ghermezian
remained in Emrani’s client trust account. Ghermezian never
5
provided Emrani or Ruiz with a written breakdown of its services
and fees in Ruiz’s action.
Emrani contended that Ghermezian’s claims failed because
it had refused to provide the information necessary to resolve its
lien claim, namely, a breakdown of the services it provided to
Ruiz, and because the disputed portion of the settlement
remained in Emrani’s client trust account. Emrani also
contended that Ghermezian could not sue Emrani without first
establishing the existence, amount, and enforceability of its lien
on the settlement funds in an independent action against Ruiz.
Ghermezian filed its opposition on August 27, 2024.
Ghermezian did not respond to Emrani’s arguments or adduce
any evidence; it instead requested pursuant to section 437c,
subdivision (h) that the motion be denied or the hearing
continued due to Emrani’s failure to produce witnesses for
deposition.5
The court ultimately granted summary judgment. The
court concluded there were no triable issues as to any of
Ghermezian’s claims against Emrani. The unjust enrichment
and conversion claims failed because Ghermezian had not
established the existence, amount, and enforceability of its lien in
a separate action against Ruiz and, thus, had not shown it was
entitled to any portion of the settlement funds. The claim for
money had and received failed because it was undisputed that
Emrani deposited the settlement funds in its client trust account,
not its own account, and therefore never received the disputed
funds. The claim for intentional interference with contractual
relations failed because Emrani had not caused Ruiz to discharge
5 Ghermezian does not maintain this claim on appeal.
6
Ghermezian, Ghermezian failed to provide Emrani with the
information needed to determine the proper amount of its fee
claim despite Emrani’s requests for the information, and
Ghermezian had failed to establish it was entitled to the
settlement funds. There was no triable issue as to Ghermezian’s
punitive damages claim because it was premised on the claims
for conversion and intentional interference with contractual
relations, which both failed.
E. Ghermezian Accepts Ruiz’s Section 998 Offer
On September 28, 2024, two days after the court issued its
summary judgment ruling, Ruiz served Ghermezian with an offer
of judgment under section 998 in the amount of $7,500. The offer
indicated it “[was] expressly being made by . . . R[uiz] and
demand[ed] that the entire action be dismissed with prejudice in
favor of all defendants and D[oe] defendants, not only herself, in
exchange for the amount of money herein offered.” Attached to
the offer was a proposed judgment in favor of Ghermezian
against Ruiz in the amount of $7,500, with “$0.00” for costs. On
October 1, 2024, Ghermezian accepted the offer of judgment.
F. Emrani and Ruiz File a Memorandum of Costs and
Ghermezian Files a Motion to Tax Costs
On October 15, 2024, Emrani and Ruiz filed a
memorandum of costs in the amount of $7,465.30.
Ghermezian filed a motion to tax costs in which it argued
the costs Emrani and Ruiz sought were not recoverable, Emrani
and Ruiz had failed to provide supporting documentation, there
were discrepancies in the amounts and dates of the claimed costs,
the memorandum of costs was premature because no judgment
had been entered, and Emrani and Ruiz were not entitled to any
costs because Ghermezian had accepted the offer to compromise
7
requiring dismissal of the defendants which did not include any
award of costs.
In opposition, Emrani and Ruiz argued the costs they
sought were allowable by statute, the section 998 offer to
compromise did not bind Emrani, and the court could award costs
even though their memorandum of costs was premature. Emrani
and Ruiz also provided documentation to support their claimed
costs.
G. Padua Files a Motion for Sanctions which the Trial
Court Grants
On October 30, 2024, Padua served a motion under section
128.7 seeking $32,395 in monetary sanctions against Ghermezian
for pursuing claims against her individually without a reasonable
basis. Padua contended she could not be held personally liable to
Ghermezian, adducing evidence that she was not involved in
Ruiz’s decision to terminate Ghermezian, the settlement check
was made out to Emrani and Ruiz, Padua did not receive the
settlement check or decide what should be done with it, no
portion of the settlement was disbursed to her, the funds in
dispute were maintained in Emrani’s client trust account
pending resolution of Ghermezian’s fee claim, and Ghermezian’s
discovery responses failed to assert any factual basis for its
claims against her. In addition, Padua contended that
Ghermezian’s continued assertion of its claims against her after
it had agreed to dismiss her by accepting the section 998 offer to
compromise was unreasonable. Padua reserved December 19,
2024 as the hearing date for the motion.
Section 128.7 provides a safe harbor period during which
the opposing party can avoid sanctions by withdrawing or
correcting the challenged pleading or other document. (Id., subd.
8
(c)(1).) The moving party must first serve its motion for sanctions
and may only file the motion if the challenged pleading or other
document has not been “withdrawn or appropriately corrected”
“within 21 days after service of the motion.” (Ibid.) Here, the
first court day after the expiration of the safe harbor period was
November 25, 2024. Padua submitted her sanctions motion for
filing on that day, but the court did not accept the motion for
filing until the following day, November 26, 2024.
Among other things, Ghermezian contended in its
opposition that the sanctions motion was untimely because it was
filed fewer than 16 court days before the December 19 hearing
date, the motion should be denied because Padua had not served
a file-stamped copy of the motion and, thus, there was “no way to
verify that the motion filed with the [c]ourt [was] the same as the
one served during the safe harbor period,” Ghermezian had no
opportunity to withdraw the offending pleading because it had
“agreed to dismiss . . . Padua” by accepting Ruiz’s section 998
offer of judgment, and Ghermezian’s claims against Padua were
not objectively unreasonable because Padua failed to have
Ghermezian’s name placed on the settlement check.
In her reply, Padua adduced evidence that she had
submitted the sanctions motion for filing on November 25, 2024,
but the clerk’s office had mistakenly rejected it. Padua
responded to Ghermezian’s argument that there was no pleading
it could withdraw by pointing out Ghermezian could have
dismissed Padua; she further adduced evidence that on
October 16, 2024, Padua’s attorney requested by e-mail that
Ghermezian dismiss Padua pursuant to the terms of the accepted
offer to compromise and Ghermezian declined. Padua requested
9
an additional $4,275 in sanctions for the cost of preparing the
reply and appearing at the hearing.
The trial court sua sponte continued the hearing on the
sanctions motion to January 9, 2025, and later continued it again
to January 27, 2025. After hearing argument on that day, the
court took the matter under submission.
On January 30, 2025, the trial court granted the motion,
concluding that Ghermezian’s claims against Padua for unjust
enrichment, money had and received, and conversion lacked
reasonable factual support because there was no evidence that
Padua received or disposed of any money in which Ghermezian
had an interest. The court concluded that Ghermezian’s claim for
intentional interference with contractual relations lacked factual
support because there was no evidence Padua received or
disposed of money which Ghermezian claimed was owed to it as a
result of its contract with Ruiz. The court observed that the fact
Ghermezian “could not articulate facts giving rise to Padua’s
liability during discovery demonstrates the allegations against
Padua were not grounded in fact.” The court found there was no
evidence or authority to support Ghermezian’s assertion that
Padua had an obligation to have Ghermezian’s name placed on
the settlement check.
The court also rejected Ghermezian’s procedural
arguments. It concluded that the clerk’s office, not Padua, was at
fault for the untimely filing of the motion and that Ghermezian
had received adequate notice of the motion. It found that
Ghermezian’s “speculation” that the version of the motion served
on it differed from the version that was filed was “meritless.” The
court lastly held that, even if Ghermezian had agreed to dismiss
Padua as part of its acceptance of Ruiz’s section 998 offer of
10
judgment, sanctions were appropriate because Ghermezian had
not effected the dismissal during the safe harbor period. The
court ordered Ghermezian to pay $10,450 in sanctions to Padua.
H. The Trial Court Awards Costs to Emrani
In its January 30, 2025 order, the court also ruled on
Ghermezian’s motion to tax costs, rejecting an award of costs to
Ruiz, and separately allowing Emrani $3,282.90 in costs. The
court ruled that Emrani was a prevailing party, and thus entitled
to costs, because Ghermezian had not recovered anything from
Emrani and had agreed to dismiss Emrani under the accepted
section 998 offer. The court’s order indicated that it would sign
Emrani’s proposed judgment, as modified to reflect its ruling on
costs.
On February 3, 2025, the court entered a judgment of
dismissal in favor of Emrani.
DISCUSSION
We first address Ghermezian’s contention that the trial
court erred in granting summary judgment to Emrani and
awarding Emrani costs. We then turn to Ghermezian’s claim
that the trial court abused its discretion in awarding sanctions to
Padua.6
6 Ghermezian’s notice of appeal, filed on March 25, 2025,
purported to appeal the January 30, 2025 “[o]rder . . . dismissing
[its] [c]omplaint with prejudice.” We construe Ghermezian’s
notice of appeal liberally to include the trial court’s ruling on
Padua’s sanctions motion, which was set forth in the January 30,
2025 order, as well as the judgment of dismissal entered by the
court on February 3, 2025, which effectuated the court’s
statement in the January 30, 2025 order that it would enter a
11
A. The Judgment of Dismissal and Award of Costs to
Emrani
Ghermezian contends the trial court erred in granting
Emrani’s motion for summary judgment because Emrani failed to
carry its initial burden of showing the claims against it lacked
merit. (See Johnson v. Superior Court (2006) 143 Cal.App.4th
297, 305 [where a motion for summary judgment fails to show the
claims lack merit, “summary judgment cannot be ordered, even if
the opposing party does not respond sufficiently or at all”].) We
need not address this claim of error because Ghermezian has not
shown any prejudice resulting from it.
“Our state Constitution provides that ‘[n]o judgment shall
be set aside, or new trial granted, in any cause, . . . for any error
as to any matter of procedure, unless, after an examination of the
entire cause, including the evidence, the court shall be of the
opinion that the error complained of has resulted in a
miscarriage of justice.’ (Cal. Const., art. VI, § 13.)” (Cassim v.
Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.) “ ‘[A] “miscarriage of
justice” should be declared only when the court, “after an
examination of the entire cause, including the evidence,” is of the
“opinion” that it is reasonably probable that a result more
dismissal for Emrani. (Gu v. BMW of North America, LLC (2005)
132 Cal.App.4th 195, 203.) Emrani and Padua have responded
on the merits of Ghermezian’s challenges, and the only issue they
raise regarding the notice of appeal is Emrani’s contention that
Ghermezian failed to timely appeal the trial court’s order
granting summary judgment. This argument fails because the
appeal lies from the ensuing judgment, not from an order
granting summary judgment. (§§ 437c, subd. (m)(1), 904; Saben,
Earlix & Associates v. Fillet (2005) 134 Cal.App.4th 1024, 1030.)
12
favorable to the appealing party would have been reached in the
absence of the error.’ ” (Ibid.) Here, a result more favorable to
Ghermezian would not have occurred because Ghermezian
accepted Ruiz’s section 998 offer and thereby was bound to
dismiss Emrani with prejudice regardless of whether the trial
court entered judgment on its summary judgment ruling.
We likewise affirm the award of costs to Emrani.
Ghermezian’s sole contention is that we must reverse the award
of costs if we reverse the judgment in Emrani’s favor. This point
is moot given our affirmance of the judgment. In any event, the
trial court properly found that Emrani was a prevailing party
entitled to costs because Ghermezian had agreed to dismiss
Emrani pursuant to Ruiz’s section 998 offer (§ 1032, subd. (a)(4)
[“a defendant in whose favor a dismissal is entered” is deemed to
be a “ ‘[p]revailing party’ ” entitled to costs]), and Ruiz’s offer did
not prevent Emrani from independently seeking its costs.
B. The Sanctions Order
1. Legal Principles and Standard of Review
Section 128.7 authorizes a court to “impose sanctions for
filing a pleading if the court concludes the pleading was filed for
an improper purpose or was indisputably without merit, either
legally or factually.” (Peake v. Underwood (2014) 227
Cal.App.4th 428, 440.) The trial court concluded that
Ghermezian’s claims against Padua lacked factual merit,
meaning they were based on “allegations and other factual
contentions [which do not] have evidentiary support or . . . are
[not] likely to have evidentiary support after a reasonable
opportunity for further investigation or discovery.” (§ 128.7,
subd. (b)(3).) The court can impose sanctions “upon the
13
attorneys, law firms, or parties that have violated [section 128.7]
or are responsible for the violation.” (Id., subd. (c).)
“[T]o obtain sanctions, the moving party must show the
party’s conduct in asserting the claim was objectively
unreasonable. [Citation.] A claim is objectively unreasonable if
‘any reasonable attorney would agree that [it] is totally and
completely without merit.’ ” (Peake v. Underwood, supra, 227
Cal.App.4th at p. 440.) To permit appropriate advocacy, “the
evidentiary burden to escape sanctions under section 128.7 is
light.” (Kumar v. Ramsey (2021) 71 Cal.App.5th 1110, 1126.)
To provide the opposing party the opportunity to withdraw
or correct the challenged pleading, section 128.7 permits the
moving party to file its motion only if the challenged pleading has
not been “withdrawn or appropriately corrected” “within 21 days
after service of the motion.” (Id., subd. (c)(1).)
We review an order imposing sanctions under section 128.7
for abuse of discretion. (Peake v. Underwood, supra, 227
Cal.App.4th at p. 441.) “The abuse of discretion standard is not a
unified standard; the deference it calls for varies according to the
aspect of a trial court’s ruling under review. The trial court’s
findings of fact are reviewed for substantial evidence, its
conclusions of law are reviewed de novo, and its application of the
law to the facts is reversible only if arbitrary and capricious.”
(Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712, fns.
omitted.)
2. Analysis
a. The effect of Ghermezian’s agreement to
dismiss all defendants.
Ghermezian first contends that it could not be sanctioned
for maintaining factually frivolous claims against Padua because
14
by the time Padua filed her motion Ghermezian had agreed to
dismiss Padua as part of the section 998 offer it accepted.
Ghermezian relies on authority that a court generally lacks
jurisdiction over a person that is no longer a party to the action;
it acknowledges that courts have made exceptions for sanctions
motions in some circumstances but contends those cases are
distinguishable. (See, e.g., Frank Annino & Sons Construction,
Inc. v. McArthur Restaurants, Inc. (1989) 215 Cal.App.3d 353,
357 [affirming sanctions awarded to dismissed party while
acknowledging the “general rule” that “once a person has been
dismissed from an action he is no longer a party and the court
lacks jurisdiction to conduct any further proceedings as to him”].)
Ghermezian additionally relies on cases holding that sanctions
cannot be imposed under section 128.7 where the offending party
was deprived of its ability to withdraw the challenged pleading
within the 21-day safe harbor period. (See, e.g., Li v. Majestic
Industry Hills LLC (2009) 177 Cal.App.4th 585, 588 [reversing
sanctions award because the sanctioned party was “deprived . . .
of the full 21-day safe harbor period” where the trial court denied
the challenged motion 19 days after service of the sanctions
motion].)
Ghermezian’s argument fails for the simple reason that it
had not dismissed Padua by the time Padua filed her sanctions
motion, or even by the time the trial court ruled on the motion
over two months later. Thus, Padua was still a party to the
action and the trial court undoubtedly had jurisdiction to
consider her motion. Nothing prevented Ghermezian from
withdrawing the challenged pleading—its second amended
complaint—by filing a dismissal in favor of Padua. Ghermezian
claims that it had accepted Ruiz’s offer to compromise and that
15
one of the terms of the offer was that Ghermezian would dismiss
the defendants with prejudice. But Ghermezian failed to file a
dismissal of its claims against Padua or take any other steps to
effect such a dismissal. To the contrary, roughly two weeks after
Ghermezian had accepted the offer to compromise, Padua’s
attorney requested by e-mail that Ghermezian dismiss Padua
pursuant to the terms of the offer and Ghermezian refused.
In its reply brief, Ghermezian contends for the first time
that after it accepted Ruiz’s section 998 offer the filing and entry
of judgment was “ministerial.” Ghermezian has forfeited this
argument by failing to raise it in the trial court or in its opening
brief in this court. (See Varjabedian v. City of Madera (1977) 20
Cal.3d 285, 295, fn. 11 [“Obvious reasons of fairness militate
against consideration of an issue raised initially in the reply brief
of an appellant”]; Greenwich S.F., LLC v. Wong (2010) 190
Cal.App.4th 739, 767 [declining to consider the appellant’s claim
not “raise[d] . . . in the trial court below”].) Even if this assertion
was not forfeited, the trial court did not abuse its discretion. The
record does not disclose that Ghermezian presented any proposed
dismissal of its claims against Padua to the court for filing.
What’s more, Padua requested that Ghermezian file a dismissal
in favor of Padua but Ghermezian refused. Under these
circumstances, Ghermezian cannot now avoid sanctions by
claiming the dismissal was “ministerial.”
Lastly, to the extent Ghermezian contends that Padua was
somehow precluded from seeking sanctions because she had been
part of a “settlement” of the case through the accepted section
998 offer, we reject the argument. Neither Padua nor her
attorney was involved in presenting the section 998 offer (which
was made by Ruiz, who was jointly represented with Emrani by
16
another attorney), and Padua’s assent to the offer was not
required.
b. The viability of Ghermezian’s first three claims
was not relevant to the sanctions motion.
Ghermezian next contends the trial court failed to analyze
whether the first three claims in its complaint—breach of
contract, declaratory relief, and quantum meruit—had merit.
This argument is specious because none of these claims was
asserted against Padua. Ghermezian contends the claims were
asserted against the Doe defendants, which would include Padua.
Not so. As noted, the captions for the claims referred to Ruiz and
the Doe defendants, but the claims themselves did not include
any allegations against the Doe defendants. Furthermore, the
context makes clear the claims were intended to be asserted
against Ghermezian’s former client Ruiz and there is no basis to
construe them as relating to any conduct by Padua. The breach
of contract claim was premised on alleged breaches of
Ghermezian’s retainer agreement with Ruiz. The declaratory
relief claim sought a determination of the respective rights of
Ghermezian and Ruiz related to Ghermezian’s compensation.
The quantum meruit claim was premised on services provided by
Ghermezian to Ruiz and Ruiz’s agreement to pay, and the
quantum meruit theory is the established measure of recovery by
an attorney against a former client under the circumstances
presented here. (Fracasse v. Brent (1972) 6 Cal.3d 784, 786.)
c. The claims against Padua were baseless.
Ghermezian next contends it had a reasonable basis to
pursue the claims it did assert against Padua: unjust enrichment,
money had and received, conversion, and intentional interference
with contractual relations. We disagree.
17
At the outset, we reject Ghermezian’s contention that it
was “only required to raise an objectively reasonable possibility
that [Emrani] or Padua had liability.” (Italics added.) The
sanctions motion concerned the claims asserted against Padua as
an individual. Although Emrani, as Padua’s employer, could be
held vicariously liable for wrongful conduct by Padua, the reverse
is not true—Padua could not be held vicariously liable for conduct
by Emrani. “Only an agent’s own tortious conduct subjects the
agent to liability . . . . An agent is not subject to liability for torts
committed by the agent’s principal that do not implicate the
agent’s own conduct; there is no principle of ‘respondeat inferior.’
Likewise, an agent is not subject to liability for torts committed
by the agent’s predecessor or coagent.” (Rest.3d Agency, § 7.01,
com. d.)
There was no evidence that Padua took any actions that
could have subjected her to personal liability. Padua’s name was
not on the settlement check (the check was made out to Emrani
and Ruiz), she did not personally receive the check or decide what
would happen to it upon receipt by Emrani, and she did not
receive any portion of the settlement funds. Ghermezian has
failed to demonstrate any factual basis for its claim for money
had and received which required a showing that Padua
personally received money that Ghermezian had rights to.
(Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 937 [a claim for
money had and received “ ‘lies wherever one person has received
money which belongs to another, and which in equity and good
conscience should be paid over to the latter’ ”].)7
7 Ghermezian also pleaded a claim for unjust enrichment
against Padua. We have previously held “unjust enrichment is
18
There was also no factual basis for Ghermezian’s claims
against Padua for conversion or intentional interference with
contractual relations. “ ‘Conversion is the wrongful exercise of
dominion over the property of another.’ [Citation.] Proof of
conversion requires a showing of ownership or right to possession
of the property at the time of the conversion, the defendant’s
conversion by a wrongful act or disposition of property rights, and
resulting damages. [Citations.] ‘Money can be the subject of an
action for conversion if a specific sum capable of identification is
involved.’ ” (Avidor v. Sutter’s Place, Inc. (2013) 212 Cal.App.4th
1439, 1452.) “To prevail on a cause of action for intentional
interference with contractual relations, a plaintiff must plead and
prove (1) the existence of a valid contract between the plaintiff
and a third party; (2) the defendant’s knowledge of that contract;
(3) the defendant’s intentional acts designed to induce a breach or
disruption of the contractual relationship; (4) actual breach or
disruption of the contractual relationship; and (5) resulting
damage.” (Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1148.) There
not a cause of action.” (Jogani v. Superior Court (2008) 165
Cal.App.4th 901, 911; see also Prakashpalan v. Engstrom,
Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1132; Melchior v.
New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793.)
“ ‘The phrase “[u]njust [e]nrichment” does not describe a theory of
recovery, but an effect: the result of a failure to make restitution
under circumstances where it is equitable to do so.’ [Citation.]
Unjust enrichment is ‘ “a general principle, underlying various
legal doctrines and remedies,” ’ rather than a remedy itself.
[Citation.] It is synonymous with restitution.” (Melchior, at
p. 793.) If we construe the unjust enrichment claim as one for
restitution, no facts suggest Padua individually received any item
of value which she needed to restore to Ghermezian.
19
was no evidence that Padua personally exercised any control over
the settlement funds or took any action that interfered with
Ghermezian’s interest in the funds or was inconsistent with
Ghermezian’s right to a portion of the money.
Furthermore, even if Ghermezian could have developed
evidence that Padua took some part in having the settlement
funds deposited into Emrani’s client trust account or had the
ability to stop the funds from being deposited, there is no
evidence that placing the money into the account was wrongful,
interfered with Ghermezian’s interest in the funds, or was
inconsistent with Ghermezian’s right to a portion of the money.8
The undisputed evidence showed that Emrani notified
Ghermezian it had received the settlement funds, acknowledged
Ghermezian’s right to a portion of the funds, and requested
Ghermezian to provide information bearing on the value of
Ghermezian’s claim. Furthermore, by depositing the funds into
its client trust account, Emrani was obligated under the Rules of
Professional Conduct to resolve Ghermezian’s fee claim before
disbursing any fees to itself. (Cal. Rules Prof. Conduct, rule
1.15(c)(2) [“if a client or other person disputes the lawyer or law
firm’s right to receive a portion of trust funds, the disputed
8 As Padua points out, Ghermezian had not established the
value of his fee claim, i.e., the reasonable value of his services,
which he could only do by litigating the issue with his client,
Ruiz. (Mojtahedi v. Vargas (2014) 228 Cal.App.4th 974, 978.)
Thus, although Ghermezian arguably had a right to a portion of
the settlement funds, that portion was undetermined. As a
result, Emrani was not withholding from Ghermezian a specific
amount of money which it knew Ghermezian had a right to
obtain.
20
portion shall not be withdrawn until the dispute is finally
resolved”].)
Ghermezian contends it was improper for Emrani to
deposit the settlement funds into its client trust account because
Emrani controlled the account, and that this somehow supported
a claim for damages against Padua individually. But for the
reasons just discussed, there was no evidence that by placing the
funds into that account Emrani was disregarding Ghermezian’s
rights to a portion of the money. Ghermezian relies on Miller v.
Rau (1963) 216 Cal.App.2d 68 and Kaiser Foundation Health
Plan, Inc. v. Aguiluz (1996) 47 Cal.App.4th 3029 but those cases
are inapposite because the courts held attorneys could be liable
for disbursing funds to their clients without protecting third
parties’ interests in the money. No such disbursement occurred
here.10
9 The case was disapproved by Snukal v. Flightways
Manufacturing, Inc. (2000) 23 Cal.4th 754, 775 and footnote 6 on
grounds not relevant here.
10 Ghermezian cites several additional cases which are
similarly unavailing. (See Shopoff & Cavallo LLP v. Hyon (2008)
167 Cal.App.4th 1489, 1508 [observing a conversion claim might
have been viable “[i]f [the trustee] had disbursed the funds to an
improper party . . . with knowledge that another claimant had
lawful contractual rights to the proceeds”]; Siciliano v. Fireman’s
Fund Ins. Co. (1976) 62 Cal.App.3d 745, 753 [insurer paid
settlement funds directly to the claimant without paying the
claimant’s former attorney]; Weiss v. Marcus (1975) 51
Cal.App.3d 590, 595-596 [attorney received and disbursed
settlement funds to the claimant without paying the claimant’s
former attorney]; McCafferty v. Gilbank (1967) 249 Cal.App.2d
569, 574 [attorney cashed two settlement checks and paid the
21
Lastly, Ghermezian contends without any analysis or
support that the settlement check should have been endorsed to
Ghermezian or Ghermezian should have been included as a
payee. What this has to do with Padua is unexplained, and in
any event this argument is meritless. Endorsing the check to
Ghermezian was not a viable option because Ruiz, the client, had
an undisputed right to a portion of the money. Nor does
Ghermezian articulate any arguable legal basis to impose on
Padua an affirmative obligation to have Ghermezian included as
a payee on the check.
d. Ghermezian’s procedural arguments lack
merit.11
Ghermezian contends that the trial court erred in granting
Padua’s sanctions motion because the motion was filed 15 court
days before the hearing instead of the required minimum of 16
court days. (§ 1005, subd. (b).) Section 1005 does not establish
an inflexible 16-court-day period; instead, “[t]he court, or a judge
proceeds out to himself, his client and others, but not to the
client’s former wife who held an equitable lien on the settlement
funds].)
11 Although Ghermezian raises these arguments in its
reply, we consider in the text those that respond to points raised
in the respondents’ briefs. Ghermezian also contends that the
trial court should have denied Padua’s sanctions motion because
Padua included additional materials with her trial court reply.
Ghermezian did not present this argument to the trial court and
did not raise it in this court until its reply brief (and not in
response to any argument made by Padua), and he has therefore
forfeited it. (Varjabedian v. City of Madera, supra, 20 Cal.3d at
p. 295, fn. 11; Greenwich S.F., LLC v. Wong, supra, 190
Cal.App.4th at p. 767.)
22
thereof, may prescribe a shorter time.” (Ibid.) As the trial court
found, Padua submitted the motion for filing on the correct date
and the clerk’s office should have filed it that day. Furthermore,
Ghermezian has not shown it was prejudiced in any way by the
one-day delay in the filing of the motion. Padua timely served
Ghermezian with the motion, and Ghermezian was afforded the
full 21-day safe harbor period to consider that motion before the
clock began to run on the time to file an opposition. Additionally,
the court on its own motion continued the hearing first to
January 9 and then to January 27, 2025, with the result that the
motion was filed two months before it was heard. (Cassim v.
Allstate Ins. Co., supra, 33 Cal.4th at p. 800.)12
Ghermezian also contends the trial court erred in granting
the sanctions motion because Padua did not serve a conformed
copy of her motion when she filed it, i.e., in addition to the copy
she served on Ghermezian to initiate the 21-day safe harbor
period. Section 128.7 does not require a moving party to serve its
motion a second time upon filing it. Ghermezian relies on Hart v.
Avetoom (2002) 95 Cal.App.4th 410, but the court in that case
only held that a party moving for sanctions under section 128.7
must file the same motion papers it initially served before the
12 Ghermezian relies on a recently published Court of
Appeal decision, J.N. v. Goldberg (2026) 120 Cal.App.5th 544, but
that case is inapposite. The court held that a sanctions motion
was defective because the moving party failed to identify a
hearing date on the copy of the motion initially served on the
opposing party. (Id. at pp. 549-550.) Here the sanctions motion
Padua served on Ghermezian identified the hearing date. We
deny Ghermezian’s request to file additional briefing regarding
this new case authority.
23
safe harbor period. (Hart, at p. 414.) Ghermezian does not claim
that the motion papers Padua filed were different than those she
served.
DISPOSITION
The judgment of dismissal in favor of Emrani and the order
awarding sanctions in favor of Padua and against Ghermezian
are affirmed. Respondents are awarded their costs on appeal.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
M. KIM, J.
24