Filed 6/22/26 Palmieri v. Foondos CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
PAMELA J. PALMIERI et al., C100383
Plaintiffs and Appellants,
(Super. Ct. No. 34-2018-
v. 00233339-CU-NP-GDS)
STEPHEN FOONDOS et al.,
Defendants and Respondents.
SUMMARY OF THE APPEAL
California Rule of Professional Conduct, Rule 1.5.1, “Fee Divisions Among
Lawyers” provides in subdivision (a):
“Lawyers who are not in the same law firm shall not divide a fee for legal services
unless:
“(1) the lawyers enter into a written agreement to divide the fee;
“(2) the client has consented in writing, either at the time the lawyers enter into the
agreement to divide the fee or as soon thereafter as reasonably practicable, after a full
written disclosure to the client of: (i) the fact that a division of fees will be made; (ii) the
identity of the lawyers or law firms that are parties to the division; and (iii) the terms of
the division; and
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“(3) the total fee charged by all lawyers is not increased solely by reason of the
agreement to divide fees.” (Asterisks removed.)
This appeal provides a casebook example of the reason for the rule.
The matter arises from a dispute between plaintiff Pamela Palmieri and defendants
Stephen Foondos, John Sargetis, and the United Law Center (ULC) regarding Palmieri’s
entitlement to collect attorney fees after a settlement was entered between Kayrinkia J.
Gilliland and various defendants in a foreclosure action. Gilliland had initially retained
Palmieri under a contingency fee agreement, and defendants had entered their own
agreement with Gilliland when they hired Palmieri as an associate at ULC. Before the
case settled, Palmieri parted ways with ULC, but she continued to advise Gilliland in the
foreclosure action while ULC also remained on as counsel. The parties never reached an
agreement regarding the proper division of fees in the case. Instead, Palmieri sought to
collect a share of the attorney fees awarded by (1) aggressively asserting she had a right
to collect a large share of the attorney fees based on a contractual lien established in her
contingency agreement with Gilliland; and (2) filing the instant action on behalf of
herself and Gilliland in which she alleged (among other causes of action) that defendants
had breached their fiduciary duties to her and the client by failing to retain in their trust
account the amount of funds from the settlement that she sought under her lien.
The trial court entered judgment in favor of defendants. We affirm the judgment.
FACTS AND HISTORY PROCEEDINGS
Facts
Because no party argues the trial court’s factual findings were incorrect, we accept
those findings and adopt them here. (See Aguayo v. Amaro (2013) 213 Cal.App.4th
1102, 1109 [Stating we review factual findings under the substantial evidence test, we
assume those finding are correct, and it is an appellant’s burden to show the findings of
fact are not correct].)
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“Client Gilliland entered into a contingency fee agreement with attorney Palmieri
on May 13, 2013. Palmieri’s legal representation was for a wrongful foreclosure lawsuit
filed by Gilliland in state court in 2014 against Chase Bank and others [(the Chase
action)], but removed by the Chase defendants to federal court. The fee agreement
granted Palmieri a lien on Gilliland’s causes of action, for any unpaid costs or attorney
fees.
“In 2015, both Gilliland and Palmieri initiated relationships with ULC, a
professional corporation of attorneys Foondos and Sargetis.
“At that time, Palmieri was in negotiations with ULC to be hired as an associate
attorney. In addition to a salary, the parties discussed splitting any contingency fees from
certain clients that Palmieri was bringing to ULC, including Gilliland. Foondos indicated
that ULC’s typical referral fee was 20 percent, but could be higher if the referring
attorney had done substantial work on the case. Foondos indicated in a meeting with
Gilliland and Palmieri that the latter ‘would be taken care of.’
“Gilliland signed a contingency fee agreement with ULC for representation in the
[Chase action] and ULC was substituted as attorney of record for Gilliland in the [Chase]
action.
“In the process of hiring Palmieri, Foondos asked her for payroll paperwork, a list
of her clients, new fee agreements with new clients, and a fee-splitting agreement
between ULC and Palmieri. Thereafter, he continued to encourage Palmieri [to] finalize
the latter agreement.
“In August of 2015, Palmieri was hired by ULC and began working as an
associate. Ten months later, she was terminated for poor performance. . . . .
“The evidence showed that ULC was still willing to enter into a fee-splitting
agreement with Palmieri, offering 20 percent when she was leaving the firm in June of
2016. However, Palmieri demand[ed] a one-third share, which ULC indicated was too
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high. Again in December 2016, ULC indicated a willingness to provide Palmieri a share
of any attorney fees.
“No fee-splitting agreement was ever agreed upon or documented.
“[Other Matter]
“In March 2017, Palmieri learned that . . . another client that she had transitioned
to ULC in 2015[] was settling her lawsuit. She contacted ULC, indicat[ed] that 20
percent of the attorney fees [to Palmieri in that matter] would have been appropriate if
she had not been ‘downsized,’ but now she wanted a full half of the contingency fee to be
received by ULC. She objected to ULC increasing [the client]’s share of the settlement
and reducing the amount allocated to attorney fees below $80,000 without her
permission.
“Palmieri contacted opposing counsel and demanded that the settlement check be
made payable to both her and ULC. Opposing counsel declined, since only ULC was
counsel of record and, in any event, a certain term of the settlement was still being
negotiated. Palmieri indicated she would file an association of counsel in the [other]
matter and also threatened to file a lien, indicating to opposing counsel that his firm could
be held liable if she did not also get paid. In communications with ULC, she objected to
the release of any funds to ULC until that firm agreed to a fee split with her.
“Palmieri had also contacted [the other client] and procured a letter from [that
client] to ULC indicating that Palmieri should now be involved in reviewing the
settlement agreement and that Palmieri should receive more than half (60 percent) of the
attorney fees. She also sent a multi-page letter to opposing counsel in the [other] matter
claiming she had a lien and threatening that firm with liability if it continued to decline to
place her name on the settlement check. Palmieri also drafted a complaint letter to the
State Bar regarding ULC and Foondos’[s] actions during the [other] settlement.
“[The other client] received her settlement two months later, in May 2017.
Palmieri complained that ULC’s unilateral decision to distribute a certain amount to [the
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client] had affected her asserted portion of the attorney fees. She continued negotiations
with Sargetis and eventually ULC agreed to pay Palmieri a portion of the . . . contingency
fee [collected in that matter].
“Gilliland Matter
“ULC’s agreement to pay [Palmieri] a share of the . . . fees [in the other matter]
encouraged Palmieri to repeat her coercive tactics in the [Chase action] underlying this
case.
“The [Chase] action was settled in 2018 following a mediation with Chase Bank.
In April 2018, Palmieri contacted Sargetis and requested fifty percent of the contingency
fee on that recovery. Sargetis indicated that was not acceptable, as most of the work on
her case had been done by other attorneys at ULC and most of Palmieri’s work had been
done while she was being compensated by ULC as an associate. [Fn. omitted.] Palmieri
responded that she would not negotiate downwards from fifty percent and if ULC did not
agree by the time the settlement funds arrived, she would seek recovery on a proportional
basis and expected seventy percent.
“Sargetis and Palmieri then negotiated back-and-forth over April and early May
2018 to attempt to resolve their disputed. [Sic.] Ultimately, Sargetis indicated that they
were at an impasse and suggested mediation, with some of the attorney fees remaining in
trust pending resolution. Palmieri would not accept a binding decision from a mediator
and indicated she’d need time to select a mediator. [Fn. omitted.] She also asked that
Gilliland’s share of the settlement be sent to her as soon as possible, as Gilliland was
trying to close on a new house. Sargetis arranged to have the funds electronically sent to
Gilliland.
“Later in May, Sargetis informed Palmieri that ULC had reviewed the file and
determined that Palmieri had withdrawn as counsel, been compensated as a ULC
employee, and that the parties had never agreed orally or in writing to share fees.
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Sargetis informed her that ULC would not be sharing any fees under its exclusive fee
agreement with Gilliland.
“Palmieri was outraged, claimed to have done most of the work for Gilliland, that
Sargetis was being dishonest and not acting in Gilliland’s interest, and that she had
supplied legal authority for her position in connection with the [other client’s] matter.
She then threatened to report Sargetis to the State Bar during the discussion about the
validity of Palmieri’s claim. [Fn. omitted.]
“Palmieri immediately contacted Gilliland and had her write a note indicating that
she was disputing the fee and that defendants were not authorized to distribute any fees.
Palmieri then texted a photo of that note to defendants. Prior to this happening, Sargetis
had discussed the proposed distribution of the settlement amount with Gilliland.
Defendants had reduced the share of the fees payable to them, in order to increase the
amount of the settlement that went to Gilliland and had already wired that increased
amount to Gilliland because of her urgent need for the funds. Sargetis responded to
Gilliland asking for clarification and informing her that Palmieri was attempting to insert
her into a dispute among her attorneys over their respective fees.
“Gilliland was a family friend of Palmieri. Gilliland remembers Foondos
discussing giving 20 percent of her fees to Palmieri and their initial meeting, but gave
confused testimony on any agreement at the time of the mediation and settlement of her
case. Palmieri obviously counse[l]ed Gilliland on what to say at trial, just as Palmieri
had written and procured the note at the time of the distribution of the settlement.
Gilliland was elderly and in poor health and, at the time of the settlement, in desperate
need of funds. Palmieri exploited Gilliland’s condition and their friendship to attempt to
use her as a tool in Palmieri’s attempt to collection [sic.] some of the fees. Had
defendants not already distributed Gilliland’s share of the settlement to her and had
Gilliland not removed herself form [sic.] the dispute over attorney fees after being
contacted by Sargetis, Palmieri’s tactics could have significantly delayed Gilliland’s
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receipt of any funds. Had Palmieri threatened opposing counsel, like in the [other]
matter, her actions could have delayed or derailed the settlement itself.
“Palmieri has not sought quantum meruit recovery from Gilliland and stated on the
record that she will not do so. Since there was not and will not be any such claim here,
Gilliland has suffered no damages or harm and therefore cannot recover for breach of
fiduciary duty. To the extent Gilliland was ever exposed to the threat of harm, it was due
to Palmieri’s tactical refusal to finalize a fee-splitting agreement that would have clarified
her compensation for work on Gilliland’s case. Defendants, on the other hand, repeatedly
and affirmatively offered to do so. The only attorney who potentially would have had a
quantum merit claim against Gilliland was Palmieri and she failed to inform Gilliland
that her refusal to enter into a fee-splitting agreement exposed Gilliland to that liability.
The court therefore finds that defendants did not breach their fiduciary duty to Gilliland.
If anybody did, it was Palmieri.
“Based on Palmieri’s actions towards both Gilliland and defendants, the court
finds that defendants acted in good faith in offering to address Palmieri’s lien and
Palmieri did not. Instead she tactically declined to finalize a fee sharing agreement,
document it, and obtain Gilliland’s consent, so that she could later attempt to obtain a fee
share much larger than she would have accepted earlier. . . . .
“Based on the same grounds, the court finds that defendants did not act with any
fraudulent intent towards plaintiff. They repeatedly attempted in good faith to share fees
and declined to do so only when they had a good faith belief that Palmieri had no
entitlement to recover any fees. . . . .”
Initial Complaint through Demurrer on the Operative Complaint
Plaintiffs filed this action on May 21, 2018.
In May 2019, after the defendants filed a demurrer to the original complaint, the
plaintiff’s filed a first amended complaint. The first amended complaint alleged causes
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of action for declaratory relief, breach of fiduciary duty, conversion, breach of contract,
imposition of constructive trust, and negligence. Defendants filed a demurrer to the first
amended complaint too.
The trial court sustained the demurrer to the first amended complaint with leave to
amend.
On October 10, 2019, plaintiffs filed a second amended complaint (the complaint),
which is the operative complaint here. In the complaint, Palmieri alleged causes of action
against the defendants for breach of fiduciary duty, conversion, breach of contract, breach
of contract related to a referral fee, misrepresentation, and imposition of constructive
trust. Gilliland joined the causes of action for breach of fiduciary duty,
misrepresentation, and imposition of constructive trust. Plaintiffs alleged Palmieri had
filed an action against Gilliland for declaratory relief to establish the validity, existence,
and value of Palmieri’s lien on Gilliland’s causes of action in the Chase action.
Defendants demurred to the complaint. The trial court sustained the demurrer on
Palmieri’s two breach of contract causes of action without leave to amend. It also
sustained the demurrer on Gilliland’s imposition of constructive trust cause of action. It
overruled the demurrer on the remaining causes of action and ordered the defendants to
answer. The plaintiffs do not challenge the trial court’s ruling on the demurrer here.
Defendants filed a general denial to the complaint. With their denial, they asserted
various affirmative defenses, including an equitable defense of laches, unclean hands,
failure to do equity, and waiver.
Palmieri v. Gilliland
Palmieri filed a declaratory relief action against Gilliland in October 2019
(Sacramento Superior Court Case No. 34-2019-00266929.) The defendants intervened in
the action. The trial court entered a judgment granting declaratory relief in that action in
June 2022. The trial court ordered, adjudged, and decreed that, as between Palmieri and
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Gilliland, “the Court determines and declares the contractual attorney’s lien between
Palmieri and Gilliland, as set forth in the ‘Attorney Client Fee Agreement’ between them
signed on or about May 13, 2013, to be valid,” and that the value of the lien was $80,000.
The judgment notes that during the trial, “consistent with her contention the [defendants]
should not be heard in” the declaratory relief proceeding, “on their challenges to the
validity and value of any lien . . . Palmieri stipulated that any ruling in,” the declaratory
relief proceeding, “would be between [Palmieri] and [Gilliland] only, and would not have
preclusive (e.g., collateral estoppel) effect as to the [defendants].” In a footnote, the trial
court added, “[a]s between . . . Palmieri and . . . Gilliland, in a post-trial e-mail to the
Court, Palmieri indicated she has no desire or intention to seek to recover costs from
Gilliland. As between Palmieri and [defendants], the Court finds there is no prevailing
party.”
Motion for Summary Judgment, Trial, Decision, Judgment, and Appeal
The defendants filed a motion for summary judgment or adjudication against
Gilliland in this action. The trial court granted summary adjudication on her cause of
action for misrepresentation. More details regarding this ruling will be provided below as
relevant.
In July 2023, the trial court held a bench trial on the remaining causes of action.
The court had bifurcated the issue of liability from the question of damages. “Since
Palmieri lost on the first issue, [the trial] court never fully received evidence on the
respective efforts of Palmieri (while she was not at ULC) and ULC on the Gilliland case
prior to the settlement.”
Following trial, the trial court issued a statement of decision in which it stated it
would enter judgment on previously adjudicated causes of action based on those
adjudications. The court also decided it would enter judgment in favor of defendants on
both plaintiffs’ breach of fiduciary duty causes of action, Palmieri’s conversion cause of
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action, Palmieri’s misrepresentation cause of action, and Palmieri’s cause of action
seeking the imposition of a constructive trust.
In addressing Palmieri’s fiduciary duty cause of action, the court observed that
Palmieri’s argument was that “successor counsel in the possession of settlement or other
proceeds against which a predecessor attorney has a lien has a fiduciary obligation to the
attorney lienholder with respect to the funds.” Citing Weiss v. Marcus (1975)
51 Cal.App.3d 590, 594-601 (Weiss), the trial court explained that case law might support
finding a duty where (1) a client agrees to a contractual lien with an attorney, discharges
that attorney, then settles their case using a second attorney; and (2) neither the client nor
subsequent attorney would acknowledge the lien.
However, the trial court concluded the instant case did not come within the cited
case law, because this was not a case where the second attorney or client would not
acknowledge or cooperate in compensating the first attorney. Instead, the trial court
reasoned, this was a case where the two attorneys could—and should—have resolved a
possible dispute over how to divide the fees for their services using the mechanism
described in Rule 1.5.1(a) of the Rules of Professional Conduct (Rule 1.5.1(a)).
As earlier set forth, under Rule 1.5.1(a), “[l]awyers who are not in the same law
firm shall not divide a fee for legal services unless: [¶] (1) the lawyers enter into a
written agreement to divide the fee; [¶] (2) the client has consented in writing, either at
the time the lawyers enter into the agreement to divide the fee or as soon thereafter as
reasonably practicable, after a full written disclosure to the client of: (i) the fact that a
division of fees will be made; (ii) the identity of the lawyers or law firms that are parties
to the division; and (iii) the terms of the division; and [¶] (3) the total fee charged by all
lawyers is not increased solely by reason of the agreement to divide fees.” (Asterisks
removed.)
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The trial court noted the purpose of the rule is client and public protection, and to
promote respect for and confidence in the legal profession. (Citing Chambers v. Kay
(2002) 29 Cal.4th 142, 155-162 (Chambers).)
The trial court said, “[i]f, as in this case,” the liability of a client to their first
counsel, “can be addressed in a fee-sharing agreement with successor counsel, the
attorney can and should do so, since then their client will then have certainty regarding
their obligation to the discharged attorney. [¶] Palmieri simply ignored Rule 1.5.1(a) and
instead attempted to use inapposite law on fiduciary duties regarding a lien on a client’s
recovery to extort a larger share of attorney fees.”
The trial court found that Palmieri’s conversion and constructive trust causes of
action were derivative of her other causes of action.
The trial court found for defendants on Gilliland’s breach of fiduciary duty cause
of action on the grounds that because Palmieri had stated she would not seek recovery
from Gilliland, Gilliland could not show damages on her cause of action.
The trial court entered a judgment after court trial in defendants’ favor and
awarded costs for defendants against Palmieri only. The plaintiffs appealed.
DISCUSSION
I
General Principals of Appellate Review
“ ‘As with an appeal from any judgment, it is the appellant’s responsibility to
affirmatively demonstrate error and, therefore, to point out the triable issues the appellant
claims are present by citation to the record and any supporting authority. In other words,
review is limited to issues which have been adequately raised and briefed.’ (Lewis v.
County of Sacramento (2001) 93 Cal.App.4th 107, 116 [].)” (Christoff v. Union Pacific
Railroad Co. (2005) 134 Cal.App.4th 118, 126.)
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Every brief must, “[s]tate each point under a separate heading or subheading
summarizing the point, and support each point by argument and, if possible, by citation
of authority.” (Cal. Rules of Court, rule 8.204(a)(1)(B).)
“Appropriate headings require litigants to ‘ “present their cause systematically and
so arranged that those upon whom the duty devolves of ascertaining the rule of law to
apply may be advised, as they read, of the exact question under consideration, instead of
being compelled to extricate it from the mass.” [Citation.]’ [Citation.]” (United Grand
Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153.) Thus, “ ‘[f]ailure to
provide proper headings forfeits issues that may be discussed in the brief but are not
clearly identified by a heading.’ (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179
[].)” (Johnson v. Department of Transportation (2025) 109 Cal.App.5th 917, 948; see
also Dameron Hospital Assn. v. Progressive Casualty Ins. Co. (2025) 111 Cal.App.5th
530, 541.)
With respect to the need for arguments supported with citations to authority, when
a brief does not furnish a “legal argument with citation of authorities on the points
made,” we may treat the argument raised as waived and pass on it without consideration.
(See People v. Stanley (1995) 10 Cal.4th 764, 793, italics added.) It is not our role to
construct an appellant’s arguments for them. (Ibid.)
“Generally speaking, the scope of the issues on appeal is determined by the
appellant’s opening brief; that is, the issues presented through reasoned argument in an
appellant’s opening brief are normally the only bases upon which [the court] will reverse
the judgment or order challenged on appeal.” (People v. Hannon (2016) 5 Cal.App.5th
94, 104.) Relatedly, “ ‘ “arguments made for the first time in a reply brief will not be
entertained because of the unfairness to the other party.” ’ [Citation.] Accordingly,
courts will not consider such an argument ‘absent a showing why the argument could not
have been made earlier.’ ” (Starr v. Mayhew (2022) 83 Cal.App.5th 842, 854 (Starr).)
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Based on these principles, we have defined the scope of the issues in this appeal as
those identified in the headers of the argument sections of the opening briefs.
Additionally, in fairness to the defendants and in consideration of the burdens deficient
briefing places on the court, we treat arguments made that lack appropriate legal citations
and/or development in the opening briefs as forfeited.
Finally, we note that, “[t]here is perhaps no rule of review more firmly established
than the principle that a ruling or decision correct in law will not be disturbed on appeal
merely because it was given for the wrong reason. If correct upon any theory of law
applicable to the case, the judgment will be sustained regardless of the considerations that
moved the lower court to its conclusion.” (Belair v. Riverside County Flood Control
Dist. (1988) 47 Cal.3d 550, 568.)
II
Judgment Against Palmieri
Based on the headers used in her opening brief, Palmieri appears to be focusing on
her fiduciary duty cause of action in her argument that the trial court erred in entering
judgment against her.
Palmieri begins the discussion section of her opening brief by claiming that as
Gillilan’s “predecessor attorney” in the Chase action, she was entitled to recover her lien
for the quantum value of her services for 2013 through 2015 “against the fee recovered
and held by successor attorney United Law Center.” To support this claim, Gilliland
cites Fracasse v. Brent (1972) 6 Cal.3d 784 (Fracasse) and Weiss, supra, 51 Cal.App.3d
at page 598. Later, she argues that “United Law Center received settlement funds against
which Palmieri had a lien. Receiving the funds subject to Palmieri’s lien imposed on
United Law Center a fiduciary duty to Palmieri.” Finally, in an argument citing Aresh v.
Marin-Morales (2023) 92 Cal.App.5th 296 (Aresh), she claims that her lien had priority
over any claim ULC might have to attorney fees, and that because her lien had “priority”
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the trial court erred in not finding it should be taken from the contingency fee payment
held by ULC.
Conspicuously absent from the opening brief is any argument by Palmieri
regarding the trial court’s application of Rule 1.5.1, and, equally important, the policy
reasons that underly the rule as articulated in Chambers, supra, 29 Cal.4th at pages 155
through 158. Instead, Palmieri has reserved her argument regarding Rule 1.5.1 for her
reply, where she argues Rule 1.5.1 does not apply because this action is “not a dispute
over a fee-splitting agreement” and ignores the policy discussion in Chambers.
Palmieri’s arguments fail to persuade us that the trial court’s entry of judgment in
defendants’ favor was in error. Notably, nowhere in her argument does Palmieri identify
with a proper header an argument that there is a theory of conversion that is not
“derivative” of her fiduciary duty claim under which she says she should have prevailed
on at trial.
First, the cases Palmieri cites to support her claims that (1) she was entitled to
recover her lien; and (2) when ULC received settlement proceeds it received them subject
to a fiduciary duty to her are inapposite under the facts of this case. To the extent
Fracasse addressed a discharged attorney’s right to collect fees under a quantum meruit
theory, Fracasse concerned an action brought by a discharged attorney against a client.
(Fracasse, supra, 6 Cal.3d at p. 786.) The central issues in Fracasse were whether the
discharged attorney’s fees should be based on the contingency rate stated in the retainer
agreement with the client, and when an action to collect the fees might be timely. (Id. at
pp. 786-787, 791-792.) Fracasse does not concern the duty of successor counsel to
protect fees owed to prior counsel.
In Weiss, the court allowed a discharged prior counsel to proceed against a
successor counsel in actions for money had and received, conversion, constructive trust,
and interference with contractual relationship. (Weiss, supra, 51 Cal.App.3d at pp. 595-
597, 601.) In Weiss, the discharged attorney had alleged that after subsequent counsel
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collected a full settlement payment in an action, all the settlement funds were distributed
to the former client and his subsequent counsel, and none of the funds had been used to
pay the discharged attorney’s reasonable fees. (Id. at p. 595.) There is no discussion in
Weiss or Fracasse regarding obligations to a client’s first counsel and the proper means
to measure the value of the first counsel’s services when (1) the second counsel and the
client both express a desire to negotiate a payment to the original counsel; and (2) “prior
counsel” continues to engage with the client up until the point the case settles.
Similarly, the California court decisions Palmieri cites for the proposition that
ULC was under a fiduciary duty to hold funds in trust to pay her lien against Gilliland do
not persuade us that a fiduciary duty was violated under the facts of this case.
In Johnstone v. State Bar (1966) 64 Cal.2d 153, 155, the third-party lien holder to
whom the lawyer owed a fiduciary duty had supplied workmen’s compensation benefits
to an injured party, and the disciplined attorney failed to retain sufficient funds from the
entire settlement to satisfy the lien. In Guzzetta v. State Bar (1987) 43 Cal.3d 962, 972,
979, our Supreme Court acknowledged that an attorney who held proceeds from the sale
of a restaurant in his trust account which were payable to his client and his client’s ex-
wife had a duty to account for the funds when they were deposited into his trust account.
In Baca v. State Bar (1990) 52 Cal.3d 294, 298, Baca represented a client on a workers’
compensation matter. The client had previously been represented by three other law
firms. (Ibid.) As part of an approved compromise, the Workers’ Compensation Appeals
Board ordered an insurance company to pay attorney fees and specified the exact amount
each of the client’s prior counsel was to receive. (Ibid.) When the insurer sent the entire
attorney fee award to Baca, he deposited the amount into his general account. (Ibid.)
The insurer later realized its mistake, and Baca said he would rectify the matter, but he
never did. (Id. at pp. 298-299.) In explaining the State Bar’s conclusion that Baca’s
actions with respect to the attorney fees had violated a rule of professional conduct that
requires an attorney to promptly pay a client money owed to them, the Court wrote,
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“[a]lthough the money was to be paid to the three law firms, it was to come from a
settlement of [the client’s] claim. The law firms were entitled to the money because of
the attorney lien claims. ‘Attorneys fees payable to the legal counsel for the injured
worker are a lien on the injured’s award; thus, they come out of the injured’s recovery.’ ”
(Id. at p. 299, fn. 3.) Baca never frames the issue as one involving a fiduciary duty.
Virtanen v. O’Connell (2006) 140 Cal.App.4th 688, 692, 698, 701-702 acknowledged the
duties an attorney representing a stock purchaser owed to the seller when the attorney
agrees to act as an escrow holder of stock shares for the transaction.
In short, none of these cases stand for the proposition that an attorney violates a
fiduciary duty to cocounsel when—based upon the “good faith” belief that they were not
required to split attorney fees with cocounsel—the attorney collects settlement funds,
distributes an amount of the settlement to the client upon the request of cocounsel, then
deposits the remaining funds into their general fund.
Here, to the extent Palmieri’s lien was determined to be valid and worth $80,000,
the lien was found to be between “Palmieri and Gilliland.” The ruling was between
Palmieri and Gilliland “only.” While the lien may have given Palmieri a right to try to
collect from Gilliland, it did not give her a right to collect the value of her services from
defendants’ fee award. (Cf. Olsen v. Harbison (2010) 191 Cal.App.4th 325, 332 (Olsen)
[rejecting a quantum meruit claim raised by a first counsel against a second counsel in an
action when the client had consented to a fee division then fired her first counsel because
the “client had a direct relationship with both” counsel]; Aresh, supra, 92 Cal.App.5th at
pp. 306-307 [allowing an award awarding fees to one attorney to stand, but disallowing a
decision in the action that stated the clients’ rights to be paid specific funds because that
ruling would impact the funds deemed available to pay another attorney].) To the extent
defendants paid Gilliland all the funds due to her—thereby removing funds upon which
the lien rested from the account—they did so under Palmieri’s direction and to meet the
client’s immediate needs as represented by Palmieri. The duty to the client outweighed a
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possible duty to Palmieri in this circumstance. “It is fundamental to the attorney-client
relationship that an attorney have an undivided loyalty to his clients. . . . This loyalty
should not be diluted by a duty owed to some other person, such as an earlier attorney.”
(Mason v. Levy & Van Bourg (1978) 77 Cal.App.3d 60, 66.)
For similar reasons, we find plaintiff’s focus on Mojtahedi v. Vargas (2014)
228 Cal.App.4th 974 at oral argument to be unpersuasive. In Mojtahedi, the court
affirmed a trial court decision sustaining a demurrer to a complaint brought by a prior
counsel against a successor counsel to collect a portion of settlement checks deposited
into the successor counsel’s trust fund account because, “plaintiff failed to establish the
existence, amount, and enforceability of his attorney fees lien in an independent action
against the clients.” (Id. at p. 976.) The court reasoned, in part, “[p]laintiff provided the
services to the clients, not to defendant. If successful in a declaratory relief action
regarding the reasonable value of his services, plaintiff’s fees will be paid out of the
clients’ settlement proceeds. … Plaintiff must thus litigate with the clients to determine
the reasonable cost of the services he provided to them. Plaintiff has omitted this
essential step of establishing his entitlement to a particular portion of the settlement
proceeds.” (Id. at p. 978.) Mojtahedi does not consider whether successor counsel would
somehow be required to pay prior counsel’s quantum-meruit based lien after successor
counsel distributes the full amount of clients’ settlement proceeds to the client at the
direction of prior counsel.
Finally, with respect to her reply brief, we find Palmieri’s protestation that Rule
1.5.1(a) does not apply because this case does not involve a fee-splitting agreement does
not give adequate weight to the policy considerations the trial court addressed in
discussing the rule.
In Chambers, supra, 29 Cal.4th at pages 156-157, our Supreme Court explained
the policy reasons for rules of professional conduct governing fee-splitting arrangements.
First, Chambers quoted Margolin v. Shemaria (2000) 85 Cal.App.4th 891, 903, to explain
17
that, with respect to pure referral fee agreements, “ ‘Just as a client has a right to know
how his or her attorney’s fees will be determined, he or she also has a right to know the
extent of, and the basis for, the sharing of such fees by attorneys. Knowledge of these
matters helps assure the client that he or she will not be charged unwarranted fees just so
that the attorney who actually provides the client with representation on the legal matter
has “sufficient compensation” to be able to share fees with the referring attorney.
Disclosure of these matters to the client should be in writing because the client should not
be expected to mentally retain such information throughout the pendency of the case.’
(Margolin, supra, 85 Cal.App.4th at p. 903.) Moreover, ‘[r]equiring the client’s written
consent to fee sharing impresses upon the client the importance of his or her consent, and
of the right to reject the fee sharing.’ (Ibid.)” (Chambers, at pp. 156-157.)
Agreeing with Margolin’s stated purpose for fee splitting rules, Chambers
extended that purpose to fee-splitting agreements that accompany the division of legal
services to a client. (Chambers, supra, 29 Cal.4th at p. 157.) The Court said, “[a]s part
of their professional obligations, attorneys are required to ‘keep a client reasonably
informed about significant developments relating to the employment or representation,
including promptly complying with reasonable requests for information and copies of
significant documents when necessary to keep the client so informed.’ [Citations.] A
division of fees may reflect each participating attorney’s responsibilities in a case or fees
may be charged for multiple attorney participation in the case without regard to the
particular services each attorney performs. Such information may affect the client’s level
of confidence in the attorneys and is indispensable to the client’s ability to make an
informed decision regarding whether to accept the fee division and whether to retain or
discharge a particular attorney. As in the case of referral fees, requiring the client’s
written consent to fee divisions among participating attorneys impresses on the client the
importance of consent and the right to reject a fee division.” (Ibid.)
18
Here, when Palmieri joined ULC, when she left ULC, and as she continued to
work on the Chase action, the defendants provided her ample opportunity to enter a fee
sharing agreement with them to address her contributions to the Chase action. Such an
agreement could have clarified her obligations and the extent to which the client’s
obligation to pay attorney fees would be impacted by that division of labor amongst
counsel. Instead, after the Chase action settled, Palmieri asked defendants to distribute
Gilliland’s “share of the settlement . . . to [Gilliland] as soon as possible,” and engaged in
“coercive tactics” to “attempt to obtain a fee share much larger than she would have
accepted earlier” under a fee splitting agreement. In so doing she, “threatened to report
Sargetis to the State Bar,” “exploited” the condition of an “elderly” client who was “in
poor health,” and “exposed Gilliland” to her claim for quantum meruit. The trial court
found that when Palmieri pursued this course of conduct, “defendants acted in good faith
in offering to address Palmieri’s lien and Palmieri did not.” (Italics added.)
In short, instead of entering into a fee agreement using a mechanism designed to
protect the client’s interests, Palmieri refused to negotiate in good faith, placed her client
in the middle of her dispute with defendants, and opted to claim it was defendants who
were breaching their fiduciary duties.
Basically, Palmieri’s action here regarding fees attempts to avoid the requirements
of Rule 1.5.1(a). That attempt necessarily fails. (See Chambers, supra, 29 Cal.4th at
p. 162.)
Under these facts, given the inapposite support Palmieri provides, and considering
Palmieri’s failure to meaningfully challenge the underlying basis for the trial court’s
decision, we will affirm the trial court’s judgment against her and in defendants’ favor.
19
III
Gilliland’s Misrepresentation Claims
Additional Background
The background Gilliland has supplied for this issue is scant. To the extent
Gilliland believes we have missed a critical detail, that is an oversight of her own
making. (See Cal. Rules of Court, rule 8.204(a)(1)(C) [briefs must support any reference
to a matter in the record with a citation to the record that includes volume and page
number]; Bains v. Moores (2009) 172 Cal.App.4th 445, 454-455 (Bains).) Based on our
review, in bringing a motion for summary adjudication on Gilliland’s misrepresentation
cause of action, defendants identified the allegations contained in the complaint and
argued the misrepresentations alleged as a basis for the cause of action were protected by
the litigation privilege contained in Civil Code section 47, subdivision (b). In opposing
the motion, Gilliland did not provide additional allegations of misrepresentation by
defendants.
As stated in the undisputed facts presented for the summary adjudication motion
on this cause of action, the complaint alleged defendants committed misrepresentation
when they stated—orally and in writing—that they would pay 20 percent of settlement
funds to Palmieri, 20 percent to themselves, and then keep the rest in trust pending
resolution of the fees dispute. Defendants also failed to disclose when they received the
settlement funds.
Also, according to the undisputed facts, the complaint alleged that before Gilliland
agreed to have ULC represent her, Foondos acknowledged Palmieri’s lien based on her
contingency agreement, and assured Gilliland he would reach an agreement with Palmieri
or hold the fee in trust pending resolution of a fee dispute once a fee was collected in
Gilliland’s case. During these discussions, Foondos also told Gilliland and Palmieri that
20
Palmieri would receive a minimum of 20 percent of the fee, and that he would place an
agreement to share the fees in writing.
Additionally, according to the undisputed facts, the complaint alleged that when
Gilliland asked Foondos to put in writing a promise to give Palmieri a portion of the fee
collected, he was insulted, said his word was good, and said Palmieri would be “ ‘fairly
paid.’ ”
Finally, the undisputed facts state that according to the complaint, after the
resolution of the Gilliland matter, Palmieri and Sargetis communicated regarding the
division of attorney fees. After she proposed each party should receive 20 percent of the
fee with the rest to remain in trust pending resolution, he responded, “OK as to 20
percent.”
In their motion for summary adjudication on Gilliland’s misrepresentation claim,
defendants argued Gilliland could not satisfy the “misrepresentation” element of her
cause of action for misrepresentation because the alleged misrepresentations as framed by
the complaint were protected by the litigation privilege contained in Civil Code section
47, subdivision (b).
Relying on this court’s decision in Olsen, supra, 191 Cal.App.4th 325, the trial
court concluded Gilliland’s misrepresentation cause of action was barred by the litigation
privilege.
Standard of Review
“In reviewing a trial court’s ruling on a motion for summary judgment, the
reviewing court makes ‘ “an independent assessment of the correctness of the trial court’s
ruling, applying the same legal standard as the trial court in determining whether there
are any genuine issues of material fact or whether the moving party is entitled to
judgment as a matter of law. [Citations.]” ’ (Trop v. Sony Pictures Entertainment, Inc.
21
(2005) 129 Cal.App.4th 1133, 1143 [], quoting Iverson v. Muroc Unified School Dist.
(1995) 32 Cal.App.4th 218, 222–223 [].)
“ ‘On review of a summary judgment, the appellant has the burden of showing
error, even if he did not bear the burden in the trial court. [Citation.] . . “[D]e novo
review does not obligate us to cull the record for the benefit of the appellant in order to
attempt to uncover the requisite triable issues. As with an appeal from any judgment, it is
the appellant’s responsibility to affirmatively demonstrate error and, therefore, to point
out the triable issues the appellant claims are present by citation to the record and any
supporting authority. In other words, review is limited to issues which have been
adequately raised and briefed.” [Citation.]’ (Claudio v. Regents of University of
California (2005) 134 Cal.App.4th 224, 230 [].)” (Bains, supra, 172 Cal.App.4th at
pp. 454-455.)
The Litigation Privilege
Under Civil Code section 47, subdivision (b), a “privileged publication or
broadcast is one made: [¶] . . . [i]n any (1) legislative proceeding, (2) judicial
proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation
or course of any other proceeding authorized by law and reviewable pursuant to Chapter
2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure,
except as” not relevant here. When the Civil Code section 47, subdivision (b), privilege
applies, “[t]he privilege is absolute and precludes a claimant from establishing a
probability of prevailing on the merits of his claim.” (Argentieri v. Zuckerberg (2017)
8 Cal.App.5th 768, 780 (Argentieri).)
“ ‘The usual formulation is that the privilege applies to any communication (1)
made in judicial or quasi-judicial proceedings; (2) by litigants or other participants
authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some
connection or logical relation to the action.’ ([Silberg v. Anderson (1990) 50 Cal.3d 205,]
22
212.) The privilege ‘is not limited to statements made during a trial or other proceedings,
but may extend to steps taken prior thereto, or afterwards.’ (Rusheen v. Cohen (2006)
37 Cal.4th 1048, 1057 [] (Rusheen).)” (Action Apartment Assn., Inc. v. City of Santa
Monica (2007) 41 Cal.4th 1232, 1241 (Action Apartment).) “To be privileged under
section 47, a statement must be ‘reasonably relevant’ to pending or contemplated
litigation.” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266.) For the litigation
privilege to apply, the statement “must ‘function as a necessary or useful step in the
litigation process and . . . serve its purposes.’ [Citation.]” (Argentieri, supra,
8 Cal.App.5th at pp. 785-786.)
“ ‘ “The principal purpose of [the litigation privilege] is to afford litigants and
witnesses [citation] the utmost freedom of access to the courts without fear of being
harassed subsequently by derivative tort actions. [Citations.]” [Citation.] In order to
achieve this purpose of curtailing derivative lawsuits, we have given the litigation
privilege a broad interpretation.’ (Action Apartment[, supra,] 41 Cal.4th [at p.] 1241 [].)
The privilege also encourages attorneys to protect their clients’ interests, and is therefore
‘extended to attorneys to protect them from the fear of subsequent derivative actions for
communications made in the context of judicial proceedings.’ (Edwards v. Centex Real
Estate Corp. (1997) 53 Cal.App.4th 15, 30[].)” (Olsen, supra, 191 Cal.App.4th at
p. 333.)
“The breadth of the litigation privilege cannot be understated. It immunizes
defendants from virtually any tort liability (including claims for fraud), with the sole
exception of causes of action for malicious prosecution.” (Olsen, supra, 191 Cal.App.4th
at p. 333.)
The privilege “applies to any publication or other communication required or
permitted by law in the course of a judicial or quasi-judicial proceeding to achieve the
objects of the litigation, whether or not the publication is made in the courtroom or in
23
court pleadings, and whether or not any function of the court or its officers is involved.”
(Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1140 (Rothman).)
“Any doubt about whether the privilege applies is resolved in favor of applying
it.” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 913; Greco v. Greco (2016)
2 Cal.App.5th 810, 826.)
The Trial Court Properly Applied Olsen
In Olsen a client signed a contingent fee agreement for plaintiff Olsen to represent
her in a personal injury action. (Olsen, supra, 191 Cal.App.4th at p. 328.) Four years
later, Olsen decided to associate defendant Harbison into the case. (Ibid.)
Correspondence between Olsen and Harbison reflected they had reached an agreement as
to a division of attorney fees, and the client signed an authorization for the division. (Id.
at p. 329.) Shortly thereafter, the client fired Olsen and entered a new fee agreement with
Harbison. (Ibid.) The client’s case eventually settled, and plaintiff did not receive
attorney fees. (Ibid.)
In a cause of action for fraud and deceit, Olsen’s complaint alleged Harbison made
representations to induce his association into the action and that Harbison (1) had no
intention to perform on his promises, and (2) intended to collect all attorney fees while
making Olsen cover any costs. (Olsen, supra, 191 Cal.App.4th at p. 332.) The trial court
granted summary adjudication on the cause of action on the grounds that the subject
communications came within the litigation privilege and, on appeal, this court found no
error. (Id. at pp. 332-333.) In so doing, we looked at each of the four factors used in
evaluating the litigation privilege. (See id. at p. 333.)
First, noting the underlying litigation on behalf of the client was the proceeding in
which privileged communications may have occurred, we concluded the statements were
made in the course of a judicial proceeding. (Olsen, supra, 191 Cal.App.4th at p. 334.)
We explained that the comments that Olsen treated as fraudulent had been made after a
24
complaint was filed, and as part of Olsen’s efforts to engage appropriate representation
on the case at trial. (Ibid.) Here too, all the statements at issue were made after litigation
began. Some of them were made as part of the parties’ efforts to associate defendants in
as counsel, others were made as the parties considered settlement terms, and still others
were made as part of wrapping up the litigation and determining how to allocate amounts
collected in the settlement. (See also O’Keefe v. Kompa (2000) 84 Cal.App.4th 130, 133-
134 [stating the litigation privilege has been expanded to bar virtually all tort action based
on any publication or broadcast and applying the privilege to post-trial efforts to secure
an attorney fee judgment by levying a bank account and filing an abstract of judgment].)
Second, we rejected Olsen’s argument that Harbison was not a participant in the
litigation at the time he made the alleged representations. (Olsen, supra, 191 Cal.App.4th
at p. 334.) We concluded that because the subject communications were linked to
ongoing litigation and that Harbison’s participation was imminent, Harbison satisfied the
requirement that the statements be made by litigants or other participants authorized by
law in the subject litigation. (Id. at pp. 334-335.) Here, the various statements were
made by defendants either when they were planning to associate into the Chase action or
once they were already counsel of record.
Finally, we rejected Olsen’s argument that “the third and fourth elements of the
litigation privilege were not met in that defendant’s statements were not made to
‘ “achieve the objects of the litigation” ’ and did not have ‘ “some connection or logical
relation to the action.” ’ (Action Apartment[,] supra, 41 Cal.4th at p. 1241.)” (Olsen,
supra, 191 Cal.App.4th at p. 335.) Olsen asserted the defendant’s statements were
unconnected to any litigation because they were made purely for economic self-interest.
(Id. at p. 336.) While in finding this prong was met, we focused on the fact that the
subject statements were made as part of an effort to bring in counsel to assist in the case,
we find this reasoning applies to post-trial statements here as well. The amount of fees
available in this action, who would pay them, when, and how were all tied to the terms of
25
settlement in the Chase action and the ultimate distribution of the award in that action.
“Had there been no litigation, these comments would never have been made.” (Ibid.)
Gilliland’s Arguments Are Without Merit
Gilliland’s first argument appears to be that the trial court erred because it did not
parse out the individual allegations of misrepresentation and rule on whether they were
protected individually but instead, “lumped together ‘all statements in the
misrepresentation cause of action’ even though some of these statements were made pre
litigation, some post litigation, some by [defendants] to Gilliland and some to Gilliland’s
agent Palmieri.”
The language Gilliand quotes from Action Apartment following her description of
statements which were “lumped together” suggests the distinctions she attempts to make
among them—whether they were before or after the litigation, and whether they were
made to Gilliland or Palmieri—are not as significant as she implies: “ ‘ “The usual
formulation is that the privilege applies to any communication (1) made in judicial or
quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to
achieve the objects of the litigation; and (4) that [has] some connection or logical relation
to the action.” [Citation.] The privilege “is not limited to statements made during a trial
or other proceedings, but may extend to steps taken prior thereto, or afterwards.”
[Citation.]’ ” (Action Apartment, supra, 41 Cal.4th at p. 1241, italics added.)
Next, Gilliland argues the application of the litigation privilege to unidentified
statements is improper. But the court did not apply the privilege to “unidentified”
statements. It applied it to plaintiffs’ allegations that defendants made specific
misrepresentations at various points in their discussions regarding the terms of
defendants’ representation of Gilliland.
Finally, Gilliland argues that it was defendants’ course of conduct that was
tortious and that the related statements consistent therewith do not create immunity. We
26
disagree with this characterization of the allegations. “Because the litigation privilege
protects only publications and communications, a ‘threshold issue in determining the
applicability’ of the privilege is whether the defendant’s conduct was communicative or
noncommunicative. [Citation.] The distinction between communicative and
noncommunicative conduct hinges on the gravamen of the action. . . . That is, the key in
determining whether the privilege applies is whether the injury allegedly resulted from an
act that was communicative in its essential nature.” (Rusheen, supra, 37 Cal.4th at
p. 1058.) “[I]f the gravamen of the action is communicative, the litigation privilege
extends to noncommunicative acts that are necessarily related to the communicative
conduct.” (Id. at p. 1065.) As the name of the cause of action suggests, an essential
element of a misrepresentation cause of action is misrepresentation. (Tindell v. Murphy
(2018) 22 Cal.App.5th 1239, 1252 [negligent misrepresentation]; Molko v. Holy Spirit
Assn. (1988) 46 Cal. 3d 1092, 1108 [intentional misrepresentation].) Here, Gilliland has
alleged oral and written communicative acts that constitute the misrepresentation. To the
extent she has alleged other potentially tortious behavior that was contrary to those
representations, the communicative acts remain essential to her claims.
To the extent Gilliland makes any arguments regarding this claim in her reply, we
note they are all under the single header “Misrepresentation”—i.e., the arguments are not
summarized in a header. (See Cal. Rules of Court, rule 8.204(a)(1)(B).) In any event, we
find the cases cited therein inapposite and unpersuasive.
IV
Gilliland’s Damages and Constructive Trust Arguments
Gilliland’s arguments regarding damages and her constructive trust cause of action
have been forfeited due to insufficient briefing.
In her opening brief, Gilliand identifies her damages argument with the header,
“[t]he trial court erred in finding Gilliland is not damaged.” Within the section, the first
27
legal authority she provides is to support a statement regarding an attorney’s duty to third
parties when he receives money on behalf of that party. That is, the statement says
nothing about damages to a client.
The next two citations are used to support a paragraph that conveys (1) lawyers
need to be competent and know laws regarding fee distribution among counsel, and (2)
what Gilliland believes the law is regarding fee disputes. Again, these statements do not
identify a form of damages or explain how a theory of damages applies to Gilliland.
Many paragraphs then follow in which Gilliland fails to cite controlling authority
for the proposition that Gilliland suffered damages because of the alleged wrongdoing by
defendants. In short, the legal support Gilliland offers for the argument in her opening
brief is woefully insufficient and we do not consider those arguments.
Likewise, in her opening brief, Gilliland’s argument under the header
“Constructive Trust”—which does not summarize an argument—lacks a single legal
citation.
The lack of legal citations in the opening brief contrasts with the reply brief, in
which Gilliland offers various citations that purportedly support her position that there is
a measure of damages available that the trial court ought to have found applied to find
damages here. The reply brief’s “Constructive Trust” argument is about four times as
long as the argument made in the opening brief and contains some legal citations.
In her opening brief, Gilliland provided wholly unsupported arguments on these
issues and we treat them as forfeited. To allow her to wait until her reply to muster legal
authority that purportedly supports those arguments would unfairly deprive defendants of
a meaningful opportunity to engage with those arguments. (Starr, supra, 83 Cal.App.5th
at p. 854.)
For the same reason, Gilliland’s efforts to interject an argument regarding the
import of California Rule of Professional Conduct, Rule 1.15 at oral argument does not
change our decision. First, we need not consider the applicability of Rule 1.15. If it is
28
“the controlling rule” and serves as the “fundamental premise” for this case, the time to
acknowledge the rule was in Gilliland’s opening brief. Second, any argument about
ULC’s fiduciary duty to Gilliland fails because Gilliland has not successfully made an
argument that she is entitled to damages. To the extent the rule may have created an
obligation for ULC to hold funds for Palmieri in trust, her fee would have been drawn
from Gilliland’s settlement proceeds (Mojtahedi v. Vargas, supra, 228 Cal.App.4th at p.
978 [“plaintiff’s fees will be paid out of the clients’ settlement proceeds”]), Palmieri
instructed ULC to give Gilliland her settlement share, and ULC’s duty to meet the needs
of their client outweighed any obligation to Palmieri.
DISPOSITION
The judgment is affirmed. Pursuant to California Rules of Court, rule 8.278(a)(1)
and (5), costs shall be awarded to defendants from Palmieri in this appeal.
/s/
HULL, J.
We concur:
/s/
EARL, P. J.
/s/
MESIWALA, J.
29