Judge: Anne Hwang, Case: BC616669, Date: 2023-09-21 Tentative Ruling

Case Number: BC616669    Hearing Date: September 21, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On April 21, 2016, Plaintiff Melissa Rosapapan (Plaintiff) filed this action surrounding a motor vehicle accident and retained D. Hess Panah as her counsel. (Motion at pg. 3.) On October 4, 2017, McElfish Law Firm was associated into the case, and exclusively has represented Plaintiff since then. (Id.)

On May 2, 2023, the parties entered into a settlement agreement and a settlement check was made payable to Plaintiff Melissa Rosapapan, McElfish Law Firm, and Panah Law Firm. D Hess Panah and McElfish have asserted a lien for their attorney’s fees. (Motion at pg. 3.)

Plaintiff asserts, through her counsel McElfish Law Firm, that D. Hess Panah has refused to endorse the settlement check. (Motion at pg. 3.) McElfish has agreed to hold the balance of the settlement for attorney’s fees in trust until there is an agreement between McElfish and Panah or the Court has ordered a distribution. (Id.) As a result, Plaintiff argues Panah should be forced to endorse the check so that Plaintiff can receive her settlement. (Id. at pg. 4-5) Plaintiff asserts the amount due to her is not in dispute, but that Panah refuses to endorse until an agreement is reached regarding the distribution of attorney’s fees. (Id.) Plaintiff now moves under California Rules of Professional Conduct 1.15(d)(7) to compel Panah to endorse the settlement check.

DISCUSSION

California Rules of Professional Conduct, rule 1.15(d)(7) requires a lawyer to “promptly distribute, as requested by the client or other person, any undisputed funds or property in the possession of the lawyer or law firm that the client or other person is entitled to receive.”  Plaintiff cites to opinions from the Review Department of the State Bar Court of California which discuss the predecessor to Rule 1.15(d)(7), rule 4-100. In Matter of Kaplan (Cal. Bar Ct., Aug. 20, 1993) 2 Cal. State Bar Ct. Rptr. 509, the attorney Kaplan refused to endorse a settlement check despite repeated attempts to obtain a signature. There, the State Bar Court determined Kaplan was obligated to act promptly to release those funds by endorsing the check. (Id. at 521–22.)  However, Plaintiff cites no legal authority for the Court to order specific performance pursuant to rule 1.15(d)(7). 

CONCLUSION

            The Court sets an Order to Show Cause re: dismissal of action with prejudice and what, if any, corrective action should be taken by the Court in view of any violation of the California Rules of Professional Conduct, on October 13, 2023 at 1:30 p.m. in Department 32. D. Hess Panah and Raymond McElfish are ordered to appear in person.

            The Order to Show Cause Re: Dismissal (Settlement), currently scheduled for 9/26/23, is advanced and vacated.

            The Clerk of the Court shall give notice of the Court’s order to D. Hess Panah, Raymond McElfish, and all parties in this action.