Majlessi v. Parman
Filed 7/12/13 Majlessi v. Parman CA2/3
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION THREE
>
ARDESHIR MAJLESSI, Plaintiff and Appellant, v. MARYAM PARMAN et al., Defendants and Respondents. | B241063 (Los Angeles County Super. Ct. No. SC101284) |
APPEAL
from a judgment of the Superior Court
of
County, Soussan Bruguera, Judge. Reversed, with directions.
Law
Office of Gerald Philip Peters and Gerald P. Peters for Plaintiff and
Appellant.
Law
Offices of Henry Yekikian and Henry Yekikian for Defendants and Respondents.
_____________________
Plaintiff
and appellant Ardeshir Majlessi appeals a judgment entered in favor of
defendants and respondents Maryam Parman, Mitra Parman, The Parman Law Group,
Inc., Mark Steven Algorri, Ernest P. Algorri and Dewitt Algorri & Algorri
(defendants)
title="">[1] following an order
granting defendants’ motion for summary judgment or, in the alternative,
summary adjudication of causes of action (MSJ).
We reverse the judgment.
Plaintiff
is an attorney who represented Marvin Vindel in a
against third parties. At Vindel’s
request, defendants replaced plaintiff as counsel in the personal injury
action. Vindel and defendants
subsequently received a multimillion dollar settlement payment but did not
honor plaintiff’s alleged lien for attorney fees.
The
trial court ruled that plaintiff could not prevail on any of his causes of
action as a matter of law. At the heart
of the court’s decision were its findings that plaintiff and Vindel did not
have a contractual relationship. We
conclude that there is a triable issue of material fact as to whether Vindel
executed a retainer agreement. The trial
court therefore erroneously granted defendants summary judgment.
We
also conclude, however, that the trial court correctly granted defendants
summary adjudication of plaintiff’s breach of fiduciary duty, conversion,
intentional interference with contractual relations and intentional
interference with prospective economic advantage causes of action. Plaintiff cannot prevail on his breach of
fiduciary duty cause of action because he did not have a fiduciary relationship
with defendants. Plaintiff cannot
prevail on his conversion cause of action because defendants did not wrongfully
take or dispose of a specific, identifiable sum of money. Plaintiff cannot prevail on his intentional
interference causes of action because Vindel had an absolute right to terminate
his contract with plaintiff.
Accordingly, defendants are entitled to summary adjudication on these
causes of action even assuming Vindel executed the retainer agreement.
FACTUAL AND
PROCEDURAL BACKGROUND
name="_ftnref2" title="">[2]
On or about October 17, 2004, Marvin Vindel
sustained severe injuries in an automobile accident. He was the passenger of a taxi cab that drove
off a freeway embankment.
On
October 21, 2004, while Vindel was a patient in Los Angeles County USC Medical
Center, plaintiff met Vindel and Vindel’s mother, Iris Del Carmen Moreno. Plaintiff contends that because Vindel was
“incapacitated†at the time, Moreno signed a retainer agreement (first retainer
agreement) on Vindel’s behalf. The
signature for the client in the first retainer agreement, however, indicates
that the document was signed by “Marvin Vindel.†Although plaintiff contends that Moreno was
Vindel’s “representative,†the first retainer agreement does not indicate that
Moreno signed it on Vindel’s behalf or set forth her capacity or authority to
do so. Indeed, the agreement does not
mention Moreno’s name anywhere.
The
first retainer agreement provided that plaintiff would represent Vindel in
connection with the injuries he sustained in the October 17, 2004,
accident. The agreement stated that
plaintiff would recover one-third of plaintiff’s gross recovery, if any, by
settlement before a lawsuit is filed and one-half of plaintiff’s gross
recovery, if any, after a lawsuit is filed.
The agreement also included a provision granting plaintiff a lien on
Vindel’s claims.
Plaintiff
contends that on December 1, 2004, Vindel executed another retainer agreement
(second retainer agreement). The parties
vigorously dispute whether Vindel did so.
We shall discuss the facts concerning this dispute in detail
Under
the second retainer agreement, plaintiff’s pre-lawsuit fee was reduced from
one-third of Vindel’s gross recovery to 22 percent. Otherwise, the second retainer agreement
contains virtually all of the same material provisions as the first retainer agreement,
including an attorney’s lien clause.
In
August or early September 2005, plaintiff called Vindel and advised him he had
settled his claim against the taxi cab company for $100,000. Although Vindel initially balked at resolving
his claim for that amount, he eventually agreed to the settlement. Plaintiff recovered a $22,000 fee from the
settlement payment.
On
October 28, 2005, plaintiff filed a lawsuit on behalf of Vindel against the
State of California, Department of Transportation (Caltrans). In early 2006, Vindel contacted Maryam Parman’s
office regarding his suit against Caltrans.
According to Vindel, Parman’s office did not solicit him directly or
indirectly.
title="">[3] In January 2006, Vindel and Maryam Parman
signed a substitution of attorney form, substituting Parman’s firm for plaintiff’s
firm in the lawsuit against Caltrans.
On
February 27, 2006, Maryam Parman sent a letter to plaintiff advising him that
her office had been retained to represent Vindel. In this letter, Parman stated: “An attorney has the right to recover costs,
advances and the reasonable value of services performed if there has only been
partial performance of the attorney’s obligation under the attorney/client
agreement. We fully intend to honor your
previous agreement provided that your work has some ‘pro rata’ value to the
entire services that are ultimately expended on this matter.â€
On
March 5, 2006, plaintiff signed the substitution of attorney form. Shortly thereafter, Parman’s office obtained
plaintiff’s file regarding the Caltrans lawsuit. Plaintiff also sent a letter to Parman dated
March 7, 2006, stating that his office was “claiming a lien for attorney fees
and costs related to the handling of†Vindel’s suit.
After
Vindel retained Parman’s firm, he agreed to also retain DeWitt Algorri &
Algorri as trial counsel. Ultimately,
the Caltrans case went to a jury trial.
The jury returned a verdict of 50 percent liability against
Caltrans. Before a judgment was entered,
however, Caltrans agreed to settle the case for $4.75 million.
On
February 21, 2008, plaintiff learned about the settlement. Over the next few months plaintiff wrote
letters to Caltrans and defendants requesting that his firm’s name be included
on any settlement check and that his attorney’s lien be honored. Defendants and Vindel, however, did not make
any payment to plaintiff out of the $4.75 million they received from Caltrans.
On
January 9, 2009, plaintiff commenced this action by filing a complaint in
superior court against defendants.
Plaintiff filed his first amended complaint (FAC), the operative
pleading, on June 24, 2009. The FAC set
forth causes of action for (1) breach of implied contract, (2) money due on
implied contract, (3) money had and received, (4) breach of fiduciary
duty, (5) conversion, (6) intentional interference with contractual
relationship, (7) intentional interference with prospective economic advantage,
and (8) unjust enrichment. In the
FAC, plaintiff alleged that he was entitled to recover $2.375 million, i.e. 50
percent of the settlement amount, plus interest.
Defendants
filed the MSJ on September 10, 2010. In
this motion, defendants sought an order granting them summary judgment or,
alternatively, summary adjudication of each of plaintiff’s causes of action.
The
initial hearing for the motion was scheduled on November 29, 2010. At plaintiff’s request, the hearing was
continued four times, and the court held additional hearings on March 30, 2011,
September 22, 2011, October 19, 2011 and February 2, 2012. Each of these continuances were granted on
the ground that plaintiff needed additional time to obtain discovery from
defendants and third parties.
name="_ftnref4" title="">[4]
At
the February 2, 2012, hearing, the court announced that its tentative ruling
was to grant the motion. The court
orally announced that it sustained virtually all of defendants’ objections to
plaintiff’s evidence.
name="_ftnref5" title="">[5] On February 7, 2012, the court entered an
order granting the MSJ. The order
stated, inter alia, that “[t]here never existed a ‘contractual relationship’
between Plaintiff and Mr. Vindel and Plaintiff never had a valid lien
agreement.â€
The
court entered judgment in favor of defendants on March 29, 2012. Plaintiff filed a timely
The
issue on appeal is whether the trial court erroneously granted defendants’ MSJ.
1. Standard
of Review for Motions for Summary Judgment or Summary Adjudication
of Causes of Action
A
motion for summary judgment or summary adjudication of a cause of action is
properly granted when there are no triable issues of material fact and the
moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subds. (c) &
(f)(1).)
A defendant moving for summary
judgment or summary adjudication bears the burden of persuasion that one or
more elements of the cause of action in question cannot be established or that
there is a complete defense thereto. (
25 Cal.4th 826, 850 (Aguilar); Code
Civ. Proc., § 437c, subds. (o) & (p)(2).)
The moving defendant also bears the initial burden of producing evidence
to make a prima facie showing of the nonexistence of any triable issue of
material fact. (Aguilar, at p. 850.) If
the defendant meets his or her burden of production, the burden shifts to the
plaintiff to produce evidence showing the existence of a triable issue of
material fact. (Ibid.) “We liberally
construe the evidence in support of the party opposing summary judgment [or
summary adjudication] and resolve doubts concerning the evidence in favor of
that party.†(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)
This
court reviews a motion for summary judgment or summary adjudication de
novo. (Conejo Wellness Center, Inc. v. City of Agoura Hills (2013) 214
Cal.App.4th 1534, 1548.) “ ‘We apply the
same three-step analysis required of the trial court. We begin by identifying the issues framed by
the pleadings since it is these allegations to which the motion must respond.
We then determine whether the moving party’s showing has established facts
which justify a judgment in movant’s favor.
When a summary judgment motion prima facie justifies a judgment, the
final step is to determine whether the opposition demonstrates the existence of
a triable, material factual issue.’ †(Gutierrez
v. Girardi (2011) 194 Cal.App.4th 925, 931-932.)
2. The
Trial Court’s Rulings on Defendants’ Objections
Before
applying the three-step analysis of the MSJ, we shall first discuss defendants’
evidentiary objections. Defendants filed
hundreds of objections to the declarations of plaintiff and his former legal
assistant Anna Bolanos. Many of the
objections were to inconsequential statements in the declarations or were
clearly unmeritorious.
For
example, in his discussion regarding discovery disputes he had with defendants,
plaintiff stated that at one point defendant Ernest Algorri called him “and
stated that all the requested documents are privileged and that ‘we are not
sending you shit.’ †(Bold emphasis
omitted.) Defendants objected on the
grounds that this statement was inadmissible hearsay and improper character
evidence. The statement, however,
clearly fell within an exception to the hearsay rule, namely an admission by a
party. (Evid. Code, § 1220.) It also was by no means inadmissible character
evidence because it was not offered to prove Mr. Algorri’s character; it was
offered to show how he declined to provide discovery responses on a specific
occasion. This evidence was marginally
relevant to plaintiff’s argument that the trial court should continue the
hearing on the MSJ to allow him to conduct additional discovery.
Our
Supreme Court has strongly disapproved of litigants filing an excessive number
of objections, as defendants did here. (
512, 532 (Reid).) The court has also encouraged the parties to
“specify the evidentiary objections they consider important, so that the court
can focus its rulings on evidentiary matters that are critical in resolving the
summary judgment motion.†(
Unfortunately,
defendants did not identify for the trial court the objections that were truly
important to their motion. Plaintiff
also made the trial court’s task more difficult by failing to provide written
or oral argument regarding the merits of the vast majority of defendants’
objections. The trial court, in turn,
did not provide any specific reasons for its ruling sustaining virtually all of
defendants’ objections.
a. Standard
of Review
Many
published cases hold that an appellate court reviews a trial court’s
evidentiary rulings on summary judgment for abuse of discretion. (See, e.g., Costa Serena Owners Coalition v. Costa Serena Architectural Com.
(2009) 175 Cal.App.4th 1175, 1202.) In
Court expressly left open the question of whether a de novo standard or an
abuse of discretion standard applies to evidentiary rulings in connection with
summary judgment motions. (
1102, 1114.) We need not resolve this
issue because our conclusions regarding particular objections would be the same
regardless of which standard we apply.
We
cannot reverse the judgment based on the erroneous exclusion of evidence unless
plaintiff meets his burden of showing the court’s error resulted in a
miscarriage of justice. (
Cal.App.4th 1471, 1480 (Zhou); Evid. Code, § 354.) A miscarriage of justice results when
the outcome of the judgment is affected by legal error. (Zhou,
at p. 1480; People ex rel. Curtis v.
Peters (1983) 143 Cal.App.3d 597, 603.)
b. Plaintiff’s
General Arguments Regarding Objections
Plaintiff
makes general arguments in his briefs regarding categories of defendants’
objections—the attorney-client privilege, hearsay, lack of personal knowledge,
relevance, lack of foundation, improper
legal conclusion, character evidence and inadmissible oral and secondary
evidence—without applying his arguments to specific objections. These arguments are clearly insufficient to
meet plaintiff’s burden of showing the trial court committed reversible error
by sustaining objections.
c. Plaintiff’s
Arguments Regarding Specific Objections
The
same is true with most of plaintiff’s arguments regarding defendants’ specific
objections to his declaration and the declaration of Ana Bolanos. Although plaintiff provides some analysis of
why he contends certain objections were erroneously sustained, he generally
does not explain why the alleged errors resulted in a miscarriage of
justice. Accordingly, with one notable
exception, plaintiff did not meet his burden of showing reversible error.
d. Paragraph
5 of the Declaration of Ana Bolanos
In
paragraph 5 of her declaration in opposition to the MSJ, plaintiff’s former
legal assistant, Ana Bolanos, stated:
“On December 1, 2004, I went to the Rancho Los Amigos Rehabilitation
Center in Downey and met with Marvin Vindel.
Mr. Vindel and I negotiated the terms of a retainer agreement [the
second retainer agreement], which reduced the attorney’s fee payable to the Law
Offices of Majlessi & Associates.
and [sic] the Law Offices of Majlessi
& Associates while he sat in his wheelchair. I gave him a copy of the retainer
agreement. A true and correct copy of
the retainer agreement signed by Vindel is attached as Exhibit ‘B’.†(Italics added.) Attached as Exhibit B to Bolanos’s
declaration was the second retainer agreement we discussed ante.
Defendants
objected to the italicized sentence in paragraph 5 on two grounds. The first was that the testimony constituted
inadmissible hearsay. We reject this
argument. Hearsay evidence is “evidence of a
witness while testifying at the hearing and that is offered to prove the truth
of the matter stated.†(Evid. Code, § 1200, subd. (a), italics
added.) Bolanos testified about Vindel’s
act of signing a retainer agreement, not any statement Vindel may have made.
Defendants
also objected to the italicized sentence on the ground that Bolanos did not
provide a sufficient foundation for her personal knowledge of the facts she
testified about. (See Evid. Code, §
702.) This objection is without
merit. Bolanos stated that she met with
Vindel at a hospital and that she negotiated the terms of the second retainer
agreement with him. This was sufficient
foundation, especially at the summary judgment stage, to establish her personal
knowledge of Vindel’s act of signing the second retainer agreement. The trial court’s ruling sustaining
defendants’ objections therefore was erroneous.
The
ruling also resulted in a miscarriage of
justice. As we shall explain, if we
consider paragraph 5 of Bolanos’s declaration,
there is a triable issue of material fact regarding whether Vindel executed the
second retainer agreement.
Defendants
argue that plaintiff waived his right to challenge the trial court’s rulings on
their objections to paragraph 5 of Bolanos’s declaration because he did not
make an adequate offer of proof in the trial court. This argument is based on Evidence Code
section 354, subdivision (a), which provides that a judgment cannot be reversed
by reason of the erroneous exclusion of evidence unless “[t]he substance,
purpose, and relevance of the excluded evidence was made known to the court by
the questions asked, an offer of proof, or by any other means.â€
We
reject defendants’ argument. In his
opposition to the MSJ, plaintiff argued that “the existence of a signed
retainer agreement is in dispute. In her
declaration, Ana Bolanos, Majlessi’s legal assistant, declares she saw Vindel
sign the December 4 [sic], 2004
retainer agreement. (Bolanos
declaration, ¶ 5.)†This argument was
sufficient to advise the trial court of the substance, purpose and relevance of
paragraph 5 of Bolanos’s declaration.
3. There
is a Triable Issue of Material Fact Regarding Whether Vindel Executed the Second Retainer
Agreement
Each
of the causes of action in the FAC rest on the allegations that plaintiff had
an attorney-client relationship with Vindel pursuant to the two retainer
agreements, and that the agreements created an attorney’s lien
the settlement proceeds. Defendants
argued below that these underlying allegations are simply not true because
Vindel never executed the retainer agreements.
In support of this argument defendants filed a declaration by Marvin
Vindel. Vindel stated that he never
signed the two retainer agreements, he was never given a copy of either
agreement, and he did not authorize any person to sign the agreements on his
behalf. He further stated that he did
not know how plaintiff became his attorney.
Based
on Vindel’s declaration the trial court found that the two retainer agreements
“must have been fabricated.†The court
further found that “[t]here never existed a ‘contractual relationship’ between
Plaintiff and Mr. Vindel and Plaintiff never had a valid lien agreement.â€
We
agree with the trial court that the facts in Vindel’s declaration, if true,
were sufficient to establish defendants’ right to summary judgment. The burden thus shifted to plaintiff to
produce evidence sufficient to raise a triable issue of material fact.
Plaintiff
did not meet his burden with respect to the first retainer agreement. It is undisputed that Vindel did not sign the
first retainer agreement and that he was not given a copy of the document.
Moreno, signed the agreement on Vindel’s behalf. But plaintiff presented no evidence that
Vindel authorized Moreno to do so or that Moreno otherwise had the authority to
act on Vindel’s behalf. The first
retainer agreement therefore was not a binding contract between plaintiff and Vindel,
and cannot serve as the basis for plaintiff’s claims against defendants.
We
cannot, at this stage of the proceedings, say the same about the second
retainer agreement. In his declaration
supporting defendants’ MSJ, Vindel stated he did not sign the second retainer
agreement. Ana Bolanos, however, stated
in her declaration that Vindel did sign that agreement. This created a triable issue of material fact
regarding whether Vindel executed the second retainer agreement. The trial court therefore should not have
granted defendants summary judgment.
4. Plaintiff
Can Recover the Reasonable Value of His Services, Not the Amount Allegedly Due Under the
Retainer Agreements
In
his FAC, plaintiff seeks to recover the full amount allegedly due under the two
retainer agreements, namely 50 percent of Vindel’s recovery, which amounts to
$2.375 million. He cannot, however, as a
matter of law recover the amount due under his alleged written contract with
Vindel, though he can recover the reasonable value of his services under a
quantum meruit theory of recovery.
a. The
Doctrine of Quantum Meruit
“Quantum
meruit refers to the well-established principle that ‘the law implies a promise
to pay for services performed under circumstances disclosing that they were not
gratuitously rendered.’ †(
Cal.4th 453, 458.) A cause of action for
breach of a quasi-contract, can be based on the equitable doctrine of quantum
meruit. (See id. at p. 461; Klein v.
Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1388.)
“
‘Quasi-contract’ is simply another way of describing the basis for the
equitable remedy of restitution when an unjust enrichment has occurred. Often called quantum meruit, it applies
‘[w]here one obtains a benefit which he may not justly retain . . . . The quasi-contract, or contract “implied in
law,†is an obligation created by the law without regard to the intention of
the parties, and is designed to restore the aggrieved party to his former
position by return of the thing or its equivalent in money.’ [Citation.]
‘The so-called “contract implied by law†in reality is not a
contract. [Citations.] “Quasi-contracts, unlike true contracts, are
not based on the apparent intention of the parties to undertake the
performances in question, nor are they promises. They are obligations created by law for
reasons of justice.†[Citation].’ †(McBride
v. Boughton (2004) 123 Cal.App.4th 379, 388, fn. 6 (
b. Plaintiff
Can Recover the Reasonable Value of His Services
In
Fracasse v. Brent (1972) 6 Cal.3d 784
(Fracasse), our Supreme Court
considered the issue of whether an attorney who has been discharged without
cause by his client may recover as the damages the full fee specified in the
contract of employment, regardless of the reasonable value of his services or
the extent of work performed under that contract. (Id.
at p. 786.) The plaintiff in
retained by the defendant to pursue a personal injury action. Both parties executed a contingency retainer
agreement. (Ibid.) The court held that
the defendant’s discharge of the plaintiff did not constitute a breach of
contract as a matter of law because a client has the absolute right to
discharge his or her attorney. (
could not recover damages based on the terms of the contingency retainer
agreement. Instead, the plaintiff was
entitled to recover the reasonable value of his services under a quantum meruit
theory of recovery. (
In
Weiss v. Marcus (1975) 51 Cal.App.3d
590, 598 (Weiss), the holding of
this case. There, the plaintiff was an
attorney who represented his client, Oran, in a personal injury action pursuant
to a contingency fee agreement. (
counsel, who obtained a $35,000 settlement payment. The plaintiff asserted a lien in the amount
of $6,750 for the reasonable value of his services. (Id.
at p. 595.) The court held that the plaintiff
was entitled to recover the amount of the lien against the new attorneys
pursuant to various causes of action. (
Under
Fracasse and Weiss, plaintiff’s lien survived his discharge and entitled
plaintiff to recover from defendants, out of the proceeds of the settlement
agreement, the reasonable value of his services rendered prior to
discharge. (Fracasse, supra, 6 Cal.3d
at pp. 786, 792; Weiss,
Plummer v. Day/Eisenberg, LLP (2010)
184 Cal.App.4th 38, 50, fn. 11 (Plummer).) This conclusion is of course based on our
assumption, at this stage in the proceedings, that plaintiff’s lien was valid.
Defendants
argue that the reasonable value of plaintiff’s services was not an issue raised
by their MSJ because the FAC did not include a cause of action for quantum
meruit. We disagree.
It
is true that a defendant’s motion for summary judgment necessarily includes a
test of the sufficiency of the FAC. (
Mateo (1996) 12 Cal.4th 1110, 1117 (American
Airlines).) In determining the
sufficiency of the FAC, we construe the pleading liberally. (Id.
at p. 1118.) We ignore the labels in the
FAC and look at the actual gravamen of the pleading to determine what cause of
action, if any, is stated. (
Although
the FAC does not label any of its causes of action “quantum meruit,†it
contains facts sufficient to support a cause of action based on the
doctrine. The FAC alleges that plaintiff
provided Vindel, with his consent and authority, substantial legal services
relating to the Caltrans case; that plaintiff notified Vindel and defendants of
his attorney’s lien based on those services; that defendants and Vindel
received a $4.75 million settlement in the Caltrans case; and that defendants
and Vindel refused to pay plaintiff any of that amount despite plaintiff’s
repeated requests that they do so. These
allegations are sufficient to state a claim by plaintiff against defendants for
the reasonable value of plaintiff’s services in the Caltrans lawsuit.
5.
Duty and Conversion Causes of Action, Defendants Did Not Meet
Their Burden of Showing Plaintiff Cannot Prevail
on His Causes of Action
a. Unjust
Enrichment
The eighth cause of action in the
FAC is for “unjust enrichment.†“Unjust
enrichment is not a cause of action, however, or even a remedy, but rather ‘ “
‘a general principle, underlying various legal doctrines and remedies.’ †. . .
. [Citation.] It is synonymous with restitution. [Citation].’ †(McBride,
supra, 123 Cal.App.4th at p.
387.) Restitution is an equitable
remedy a party may obtain if he or she prevails on a cause of action for breach
of a quasi-contract implied by law, i.e., a claim for quantum meruit. (See id.
at pp. 388-389; Federal Deposit Ins.
Corp. v. Dintino (2008) 167 Cal.App.4th 333, 346.)
Construing
the FAC liberally and disregarding the label of the claim, the eighth cause of
action is essentially for quantum meruit. As we have explained, plaintiff can pursue
this cause of action against defendants.
The trial court therefore should not have granted defendants’ motion for
summary adjudication of this claim.
b. Breach
of Implied Contract and Money Due on Implied Contract
The
first cause of action for breach of implied contract and second cause of action
for money due on implied contract are based on the February 27, 2006, letter
Maryam Parman sent to plaintiff. In that
letter, Parman stated that her firm “intended to honor†plaintiff’s previous
agreement with Vindel by paying him the reasonable value of his services. It is unclear whether plaintiff contends he
had an implied-in-fact
name="_ftnref9" title="">[9] or
implied-in-law contract with defendants.
In
its order granting the MSJ, the trial court stated that defendants were
entitled to judgment as a matter of law with respect to plaintiff’s first two
causes of action because there was no enforceable retainer agreement between
plaintiff and Vindel. We have, however,
concluded that whether the second retainer agreement was enforceable is a
triable issue of material fact.
On
appeal, defendants do not make any arguments specifically relating to the first
two causes of action. Because we reject
defendants’ general arguments regarding plaintiff’s action, we conclude that
the trial court erroneously adjudicated these two causes of action in
defendants’ favor.
name="_ftnref10" title="">[10]
c. Money
Had and Received
The
third cause of action in the FAC is for money had and received. “ ‘A cause of action is stated for money had
and received if the defendant is indebted to the plaintiff in a certain sum
“for money had and received by the defendant for the use of the
plaintiff.†’ †(Gutierrez
v. Girardi (2011) 194 Cal.App.4th 925, 937.) “This common count is available in a great
variety of situations [citation] and ‘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.’ †(
Here,
it is undisputed that plaintiff represented Vindel in the lawsuit against
Caltrans, that defendants received a $4.75 million settlement from Caltrans to
resolve that suit, and that defendants refused to honor plaintiff’s lien. Assuming plaintiff had a bona fide lien—which
we must at this point—the trial court erroneously granted defendants summary
adjudication of plaintiff’s money had and received cause of action. (See Weiss,
supra, 51 Cal.App.3d at p. 599.)
d. Breach
of Fiduciary Duty
The
FAC’s fourth cause of action is for breach of fiduciary duty. An essential element of this cause of action
is the existence of a fiduciary relationship between the plaintiff and the
defendant. (Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1101.) “Fiduciary duties arise as a matter of law
‘in certain technical, legal relationships.’ â€
(Oakland Raiders v. National
Football League (2005) 131 Cal.App.4th 621, 632.) These include the relationships between
principal and agent, attorney and client, partners, husband and wife with
respect to the couple’s community property, and executor and decedent’s
estate. (Ibid.) A fiduciary has a
duty to act with the utmost care, integrity, honesty and loyalty. (Leko
v. Cornerstone Bldg. Inspection Service (2001) 86 Cal.App.4th 1109,
1116.)
The
FAC alleges no facts indicating plaintiff and defendants had a fiduciary
relationship. Plaintiff was not
defendants’ client. At most, plaintiff
had some sort of contractual or quasi-contractual relationship with defendants. This falls far short of a fiduciary
relationship. Accordingly, we hold that
the trial court correctly ruled that defendants did not owe plaintiff a
fiduciary duty and that plaintiff cannot prevail on his breach of fiduciary
cause of action as a matter of law.
Plaintiff’s
reliance on Guzzetta v. State Bar (1987)
43 Cal.3d 962 (Guzzetta) is
misplaced. Guzzetta involved an attorney disciplinary proceeding. In an underlying divorce action, the accused
attorney agreed to hold a certain amount of money in his client’s trust account
that both his client and his client’s wife claimed an interest in. (Id. at
p. 970.) The issue was whether the
attorney had an obligation to his client’s wife to comply with a former rule of
professional conduct regarding trust accounts.
(Id. at p. 979.) The court did not address the issue here,
namely whether a successor lawyer has a fiduciary duty to a predecessor
lawyer. Guzzetta thus is distinguishable from the present case.
e. Conversion
The
FAC’s fifth cause of action is for conversion.
“ ‘Money cannot be the subject of a cause of action for conversion
unless there is a specific, identifiable sum involved.’ †(PCO,
supra, 150 Cal.App.4th at p.
395.) Plaintiff contends that the
specific, identifiable sum involved here
is the $2.375 million he is entitled to recover under the retainer
agreements. As we have explained,
however, plaintiff is not entitled to recover that sum; his recovery is limited
to the reasonable value of his services.
The
FAC does not allege a specific, identifiable sum of the reasonable value of
plaintiff’s services. Plaintiff’s
notices of attorney’s lien also do not specify such a sum. Additionally, at his deposition, plaintiff
evasively responded to a series of questions regarding the time he spent
working on Vindel’s lawsuit against Caltrans.
Plaintiff repeatedly stated that he was not prepared to give an
estimate, or had not made a calculation, regarding the amount of time he spent
on specific tasks. When pressed on the
issue, Majlessi stated that he would “estimate†he worked “at least†2,000
hours “on the whole case.â€
name="_ftnref11" title="">[11] Even in his briefs in this court, plaintiff
does not identify the specific sum he claims was the reasonable value of his
services. The trial court thus properly
summarily adjudicated plaintiff’s conversion cause of action in defendants’
favor. (See Vu v. California Commerce Club, Inc. (1997) 58 Cal.App.4th 229,
231, 236 [summary judgment granted on plaintiff’s conversion claim based on
plaintiff’s losses of “approximately†$1.4 million and $120,000 in card games
due to alleged cheating]; PCO,
[summary judgment granted on plaintiff’s conversion claim based on taking of
8-18 bags of money].)
Plaintiff’s
reliance on Weiss is
unpersuasive. There, the defendant
attorneys were allegedly aware that a precise amount of money, $6,750,
“belonged to and was the property of plaintiff by virtue of his lien for
attorney’s fees.†(Weiss, supra,
51 Cal.App.3d at p. 596.) No
similar facts exist here.
case on the claim of conversion.
f. Intentional
Interference With Contractual Relationship and Intentional Interference With
Prospective Economic Advantage
The
sixth cause of action of the FAC is for intentional interference with
contractual relationship. The elements
of this cause of action are: “(1) a
valid contract existing between plaintiff and another person; (2) defendant had
knowledge of the contract and intended to induce a breach thereof; (3)
thereto; (4) the breach was caused by defendant’s wrongful or unjustified
conduct; and (5) plaintiff suffered damage as a result of the breach.†(Weiss,
supra, 51 Cal.App.3d at pp.
600-601, italics added.)
The
FAC alleges that defendants induced Vindel to breach his contract with
plaintiff by telling Vindel that plaintiff “would be unable to meet his
obligations†to Vindel under the contract.
The FAC further alleges that as a result of defendants’ conduct, Vindel
“broke off his attorney-client contractual relationship†with plaintiff and
entered into a contract with defendants.
In other words, the FAC alleges that Vindel “breached†the retainer
agreements by terminating them. In
that a client has an absolute right to terminate his contractual relationship
with his or her attorney and that when the client does so, it is not a breach
of contract as a matter of law. (
The FAC thus does not state a cause of action. Because a motion for summary judgment
necessarily tests the sufficiency of a complaint (American Airlines, supra,
12 Cal.4th at p. 1117), the trial court correctly granted defendants summary
adjudication of plaintiff’s intentional interference with contractual
relationship cause of action.
The
seventh cause of action in the FAC is for intentional interference with
prospective economic advantage. The
elements of this cause of action are: “
‘ “ ‘(1) an economic relationship between the plaintiff and some third party,
with the probability of future economic benefit to the plaintiff; (2) the
defendant’s knowledge of the relationship; (3) intentional acts on the part of
the defendant designed to disrupt the relationship; (4) actual disruption of
the relationship; and (5) economic harm to the plaintiff proximately caused by
the acts of the defendant.’ †’ †(
Additionally, “a plaintiff seeking to recover for alleged interference
with prospective economic relations has the burden of pleading and proving that
the defendant’s interference was wrongful ‘by some measure beyond the fact of
the interference itself.’ †(
Inc. (1995) 11 Cal.4th 376, 392-393.)
Here,
plaintiff contends that defendants “wrongfully†interfered with plaintiff’s
relationship with Vindel by soliciting Vindel in violation of Rule 1-400 of the
State Bar Rules of Professional Conduct.
Defendants, however, filed evidence indicating that Vindel contacted
defendants first, not the other way around.
This shifted the burden to plaintiff to produce evidence to the
contrary. But plaintiff filed no
admissible evidence showing that defendants solicited Vindel. (See fn. 3, ante.) The trial court
therefore correctly granted defendants’ motion for summary adjudication of
plaintiff’s intentional interference with prospective economic advantage cause
of action.
6. Plaintiff
Did Not Meet His Burden of Showing the Trial Court Abused Its Discretion in Denying Plaintiff’s Request for a
Continuance
Code
of Civil Procedure section 437c, subdivision (h) provides: “If it appears from the affidavits submitted
in opposition to a motion for summary judgment or summary adjudication or both
that facts essential to justify opposition may exist but cannot, for reasons
stated, then be presented, the court shall deny the motion, or order a
continuance to permit affidavits to be obtained or discovery to be had or may
make any other order as may be just.†We
review a trial court’s denial of a request for continuance of a motion for
summary judgment or summary adjudication for abuse of discretion. (Ace
American Ins. Co. v. Walker (2004) 121 Cal.App.4th 1017, 1023.)
Plaintiff
argues that if this court does not reverse the judgment on the ground that
there is a triable issue of material
fact, we should do so on the ground that the trial court abused its discretion
by denying his request for a continuance.
Because we agree with plaintiff that there was a triable issue of
material fact relating to each of his causes of action except for breach of
fiduciary duty, conversion, intentional interference with contractual relations
and intentional interference with prospective economic advantage, we analyze
plaintiff’s argument regarding his requested continuance only as it applies to
breach of fiduciary duty and conversion.
Plaintiff
stated in his declaration supporting his request for a continuance that
defendants “refused to provide current contact information†for Vindel, and
thus plaintiff had been deprived of an opportunity to depose him. Defendants, however, filed evidence that they
provided plaintiff with Vindel’s last known address even before defendants’ MSJ
was filed and served. On August 13,
2010, in response to an interrogatory, defendants stated that Vindel’s “last
known address†was 7555 W. 85th street, Los Angeles, California. Defendants further stated that they “are
informed and believe that Marvin A. Vindel may be residing in Las Vegas, NV or
Northridge, CA but are not aware of any specific address. Marvin A. Vindel’s last known telephone
number is (818) 339-2985.†On March 18,
2011, defendants again stated in response to an interrogatory that Vindel’s
“last known address†was 7555 W. 85th street, Los Angeles, California.
Plaintiff
dismisses these interrogatory responses as “out-of-date.†The trial court, however, continued the
hearing on the MSJ for more than a year to give plaintiff an opportunity to
conduct more discovery and, if necessary, to file discovery motions.
Moreover,
plaintiff did not provide an explanation in his declaration regarding what
information he could obtain from Vindel that would support his breach of
fiduciary duty, conversion or intentional interference with contractual
relations and intentional interference with prospective economic advantage
causes of action. Indeed, it is
difficult to imagine what critical information Vindel would know about the
alleged fiduciary relationship between plaintiff and defendants, or the
specific, identifiable sum defendants allegedly converted. Likewise, plaintiff does not explain how
Vindel would be in a position to know any facts that would save plaintiff’s intentional
interference with contractual relations and intentional interference with
prospective economic advantage causes of action. We thus conclude that the trial court did not
abuse its discretion in denying plaintiff’s request for a continuance.
7. Additional
Issues
Plaintiff
argues that even if the retainer agreements were not executed by Vindel, Vindel
ratified the agreements by knowingly and voluntarily accepting plaintiff’s
legal services. Additionally, plaintiff
contends that assuming his contract with Vindel was voidable because it was not
in writing or it otherwise violated Business and Professions Code section 6147,
defendants were not entitled to summary judgment because Vindel did not void
the contract. We do not reach these
issues because we conclude that there is a triable issue of material fact as to
whether Vindel executed the second retainer agreement, and that plaintiff’s
recovery is limited to the reasonable value of his services.
Defendants
argue that we should strike plaintiff’s opening brief because it does not set forth
the applicable standards of review, supported by legal authority. We decline to do so and instead address
plaintiff’s appeal on the merits.
DISPOSITION
The judgment
is reversed and the matter is remanded to the trial court for further
proceedings consistent with this opinion.
The trial court is directed to vacate its order granting defendants
summary judgment and to enter a new and different order denying defendants’
motion for summary judgment, denying defendants’ motion for summary
adjudication of plaintiff’s first, second, third and eighth causes of action,
and granting defendants’ motion for summary adjudication on plaintiff’s fourth,
fifth, sixth and seventh causes of action.
In the interests of justice, plaintiff and defendants shall bear their
own costs on appeal.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING,
J.
We concur:
KLEIN,
P. J.
ALDRICH,
J.
sued other defendants in this action who are not respondents on appeal. We shall refer to “defendants†as the
respondents listed here.
shall state the facts in a light most favorable to plaintiff and resolve any
evidentiary doubts or ambiguities in his favor.
(PCO, Inc. v. Christensen, Miller,
Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384,
388, fn. 1 (PCO).)
