Case Number: 22STCV07972    Hearing Date: April 7, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background [Drawn from Complaints in 22STCV07972 and 22AHCV00796]

On October 1, 2017, Michelle Leonard—a resident of the State of Arizona—attended the Route 91 Harvest Festival concert, held in Las Vegas, Nevada, when a shooter discharged thousands of rounds from the window of his hotel room upon unsuspecting concertgoers. As a result, Michelle Leonard sustained physical and psychological injuries.

On October 3, 2018, upon the request of Michelle Leonard, The Claypool Law Firm emailed Michelle Leonard an engagement letter to retain The Claypool Firm to represent her in relation to the shooting. On October 5, 2018, Michelle Leonard returned a signed engagement letter and addendum via email. Within the same email, Michelle Leonard requested that The Claypool Law Firm notify her previous lawyer that she had now retained The Claypool Law Firm. On or around the same day, October 5, 2018, attorney Brian E. Claypool signed and executed the engagement letter and addendum.

Litigation pertaining to the Route 91 Harvest Festival Concert, also known as the One October shooting, took place in Las Vegas, Nevada, where the shooting occurred. In order to litigate the case in Nevada, and prior to being retained by Michelle Leonard, The Claypool Law Firm engaged the law firm Eglet Adams to act as local co-counsel. Michelle Leonard was made aware of Eglet Adams being Nevada local co-counsel.

A global settlement in the amount between seven hundred and thirty-five million dollars ($735,000,000) and eight hundred million dollars ($800,000,000) was reached by approximately 4,500 concertgoers and MGM International. To fairly evaluate the participating claimants’ injuries, the Claims Processor and Claims Administrators created a protocol and claim allocation methodology (“Claims Protocol” or “One October Protocol” or “Protocol”). Michelle Leonard received the One October Protocol, opted into the global settlement, and agreed to be bound by the Protocol’s terms.

On July 14, 2020, The Claypool Law Firm submitted Michelle Leonard’s claim to the Claims Processor for evaluation and point allocation. On August 27, 2020, the Claims Processor issued a Notice of Allocation, awarding Michelle Leonard 866.0986 points. On September 16, 2020, The Claypool Law Firm submitted a Reconsideration of the initial allocation. On December 3, 2020, the Claims Processor issued a Notice of Allocation After Reconsideration, awarding Michelle Leonard 972.2057 points, an increase of 106.1071 points. An appeal to the reconsideration was denied on March 8, 2021, keeping Michelle Leonard’s award to 972.2057 points.

On March 10, 2021, two days after Michelle Leonard’s point allocation was final, and after all of the work that The Claypool Law Firm performed on the initial claims filing, the submission of reconsideration, and the drafting and submission of an appeal, Michelle Leonard terminated The Claypool Law Firm.

On April 1, 2021, the Claim Administrators concluded the evaluation of all claims and appeals and determined that each point awarded had a value of $1,051.28210895841. Based on the per point dollar value, Michelle Leonard’s settlement allocation amounted to $1,129,962.46.

Pursuant to the terms of the engagement letter/contingency fee retainer agreement between Michelle Leonard and The Claypool Law Firm, “The Firm w[ould] receive as a fee, thirty three percent (33%) of the gross recovery before deduction of costs and expenses at any time up until 100 days before trial,” as well as all costs.

Following The Claypool Law Firm’s termination, Michelle Leonard received her full settlement award, minus the attorney fees and costs in dispute. The disputed attorney fees amounted to $386,443.80. The disputed funds have been interpleaded with the Nevada Eighth Judicial District Court, and the Nevada Court has jurisdiction and control over the funds.

On March 25, 2021, The Claypool Law Firm filed a lien for Attorney Fees and Costs for work performed for and legal representation of Michelle Leonard, which was served on Michelle Leonard on March 27, 2021.

On April 6, 2021, The Claypool Law Firm filed a motion with the Nevada Court, requesting that the court determine whether the Firm has perfected its lien under Nevada law, and requesting that the Nevada Court direct Michelle Leonard to resolve her attorney lien dispute pursuant to the procedures outlined within the One October Protocol. On June 24, 2021, the Nevada Court determined that The Claypool Law Firm did perfect its lien pursuant to Nevada law, and instructed Michelle Leonard and The Claypool Law Firm to resolve their attorney lien dispute pursuant to the One October Protocol.

However, on or around September 13, 2021, The Claypool Law Firm received a letter from the Los Angeles County Attorney-Client Mediation and Arbitration Services (“ACMAS”), informing it that Michelle Leonard has initiated an arbitration proceeding through their program.

Per the Complaint, pursuant to California Business and Professions Code §6200 et seq., participation in arbitration is mandatory for attorneys if initiated by a client. As such, Brian E. Claypool had no option but to participate in the arbitration.

On March 4, 2022, as a pro se plaintiff, Michelle Leonard filed LASC Action No. 22STCV07972, alleging claims of Professional Negligence, Breach of Fiduciary Duty, and Breach of Contract against Brian E. Claypool, The Claypool Law Firm, and Does 1-20. The claims are grounded in allegations that Brian E. Claypool and The Claypool Law Firm’s representation of Michelle Leonard fell below the standard of care and demanded an unconscionable fee rate from Michelle Leonard. The action was assigned to Department 40 at Stanley Mosk Courthouse.

On June 27, 2022, a mandatory fee arbitration between Michelle Leonard and Brian E. Claypool was held before a panel of arbitrators by the Los Angeles County Bar Association ACMAS. An arbitration award was issued on September 12, 2022, which required that Michelle Leonard pay attorney fees for legal services performed to Brian E. Claypool in the total amount of twenty thousand dollars ($20,000). The arbitration award further provided that Brian E. Claypool would be responsible for two thousand and five-hundred dollars ($2,500) out of the five-thousand dollar ($5,000) arbitration filing fee. As such, the arbitration panel instructed Michelle Leonard to pay Brian E. Claypool a total of seventeen thousand and five hundred dollars ($17,500) for legal services performed.

On October 10, 2022, The Claypool Law Firm and Brian E. Claypool filed this action—LASC Action No. 22AHCV00796—with the superior court, making a Rejection of Arbitration Award and Request for Trial after Attorney-Client Fee Arbitration, premised in part on the ground that at the time of the arbitration, both Michelle Leonard and Brian E. Claypool informed the arbitration panel that the arbitration would be non-binding, and based on Plaintiffs expressly rejecting the arbitration award. The Complaint includes a claim for Breach of Contract, alleging that The Claypool Law Firm is, pursuant to a contract between the parties, entitled to 33% of the gross recovery obtained by Michelle Leonard from the One October Protocol—i.e., to $386,443.80—and that Michelle Leonard has breached the contract by disputing the attorney fees, initiating a non-binding arbitration through the Los Angeles County Bar Association ACMAS, and circumventing the procedure outline in the One October Protocol. The action was assigned to Department P of the Pasadena Courthouse.

On February 7, 2023, Brian E. Claypool and The Claypool Law Firm filed a Demurrer and Motion to Strike against the 22STCV07972 Complaint and its three causes of action. The motion to strike requests an order striking the excessive attorney’s fees allegations underlying the Breach of Fiduciary Duty claim in the 22STCV07972 Complaint on the grounds that any dispute as to fees charged by Brian E. Claypool and The Claypool Law Firm in relation to the One October Protocol must be submitted to binding arbitration per the terms of the Protocol itself.

On February 27, 2023, Michelle Leonard filed a Notice of Related Case in the 22AHCV00796 and 22STCV07972 actions.

On March 2, 2023, Department 40 found the 22AHCV00796 and 22STCV07972 actions were related within the meaning of California Rules of Court, rule 3.300(a), with 22STCV07972 as the lead case, and the cases being assigned to Department 40 for all purposes.

On March 8, 2023, Michelle Leonard filed a Motion to Consolidate in the 22STCV07972 action.

On March 23, 2023, Brian E. Claypool and The Claypool Law Firm opposed the Motion to Consolidate.

On March 27, 2023, Michelle Leonard replied to the March 23, 2023 opposition by Brian E. Claypool and The Claypool Law Firm against the Motion to Consolidate.

On March 29, 2023, Brian E. Claypool and The Claypool Law Firm objected to the request for judicial notice attached to Michelle Leonard’s March 27th reply.

Request for Judicial Notice and Evidentiary Objections

The Court DECLINES to take judicial notice of the LACBA arbitration documents and the filings made in the 22AHCV00796 action, as requested by Plaintiff Leonard, because the submission is untimely, and in any event, the Court need not judicially recognize those documents to make a determination as to this motion. (Reply, RJN, 2:2-23, Exs. A-E; see Evid. Code, §§ 452, subds. (d), (g), (h), 453.)  The Court finds that the objection by Defendants Brian E. Claypool and The Claypool Law Firm to the request for judicial notice filed by Plaintiff with her reply papers is thereby MOOT in light of the Court’s denial of that request.

Motion to Consolidate: GRANTED.

Legal Standard

When cases involving a common question of law or fact are pending in the same superior court, i.e., in the same county, the cases can be consolidated on a party’s motion or on the court’s own motion under Code of Civil Procedure section 1048, subdivision (a).

Cases can be consolidated for (1) all purposes (Hamilton v. Asbestos Corp. (200) 22 Cal.4th 1127, 1147; see Code Civ. Proc., § 1048, subd. (a)), (2) for trial (Stubblefield Constr. Co. v. City of San Bernardino (1995) 32 Cal.App.4th 687, 701; see Code Civ. Proc., § 1048, subd. (a)), or (3) for limited purposes, e.g., discovery or pretrial matters (see Code Civ. Proc., § 1048, subd. (a); see, e.g., State v. Altus Fin., S.A. (2005) 36 Cal.4th 1284, 1293 [cases consolidated for discovery and pretrial matters]; Austin B. v. Escondido Un. Sch. Dist. (2007) 149 Cal.App.4th 860, 870 [cases consolidated for discovery and trial]; Frieman v. San Rafael Rock Quarry, Inc. (2004) 116 Cal.App.4th 29, 33 [cases consolidated for discovery and pretrial determinations]).

To prevail on a motion to consolidate, a movant must establish that (1) the cases are pending before the same court, (2) the cases share a common question of law or fact, and (3) the benefits of consolidation outweigh the burdens. (See Code Civ. Proc., § 1048, subd. (a).)

Analysis

By way of her Motion to Consolidate, Plaintiff Leonard seeks consolidation of the 22STCV07972 and 22AHCV00796 actions before Department 40. (Mot., 3:5-14, 4:20-22.)

I. Case Pending Before Same Court

A movant for consolidation must establish that the cases being consolidated are pending in the same superior court, i.e., in the same county. (Code Civ. Proc., § 1048, subd. (a).) Cases are pending in the same superior court even if they are pending in different departments. (See, e.g., Estate of Bliss (1962) 199 Cal.App.2d 630, 640-41 [court consolidated probate case with case in equity to set aside inter vivos gift]; contra. Sup. Ct., Los Angeles Cty. Loc. R., rule 3.3, subd. (g)(1) [“Cases may not be consolidated unless they are in the same department”].) A case is considered to be pending from the time it is filed until its final determination on appeal or until the time for appeal has passed, unless judgment is satisfied sooner. (Code Civ. Proc., § 1049; see, e.g., Sosnick v. Sosnick (1999) 71 Cal.App.4th 1335, 1339-40 [court exceeded its jurisdiction when it consolidated pending tort action with dissolution action because dissolution action was no longer pending].)

In her motion, Plaintiff Leonard notes rather than argues that the 22STCV07972 and 22AHCV00796 actions are pending before the same court—the Los Angeles Superior Court—and have been related.

In their opposition as defendants in the 22STCV07972 action and as plaintiffs in the 22AHCV00796 action, Brian E. Claypool and The Claypool Law Firm do not address this element of consolidation.

The Court finds that the cases are pending before the same court and department, which satisfies the first element of consolidation and Los Angeles County Local Rule, rule 3.3, subdivision (g)(1).

II. Common Questions of Law or Fact

The movant for consolidation must establish that the cases sought to be consolidated involve a common question of fact or law. (See Code Civ. Proc., § 1048, subd. (a).) Common questions of law or fact can arise in cases that share common parties and involve a common transaction (e.g., contract) or incident (e.g., automobile accident). (See, e.g., Code Civ. Proc., § 377.62, subd. (b) [wrongful death action and survivor action can be consolidated under section 1048 when actions arise from same wrongful act or neglect]; Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367, 385 [trial court has power to consolidate unlawful-detainer proceeding with quiet title action involving same property because successful claim of title by tenant would defeat landlord’s right to possession]; Sanchez v. Superior Court (1988) 203 Cal.App.3d 1391, 1395 [cases arising from same car accident were ordered consolidated for trial].) The more predominant and significant the common questions are to the litigation, the more likely the motion will be granted. (Cf. Code Civ. Proc., § 404.1 [factors considered for coordination].)

In her motion, Plaintiff Leonard argues that the 22STCV07972 and 22AHCV00796 actions are related and “involve common questions of law and fact arising from the handling of the Plaintiff[’]s underlying personal injury claims” where “[e]ach of the actions allege substantially similar underlying facts, claims[,] and defenses.” (Mot., 4: 13-18.)

In their opposition as defendants in the 22STCV07972 action, Brian E. Claypool and The Claypool Law Firm argue that (1) the attorney’s fees dispute underlying the Breach of Fiduciary Duty claim in the 22STCV07972 Complaint must be resolved through binding arbitration and (2) no common law or facts are involved between the two suits because “this Court does not have jurisdiction to determine whether defendants’ attorneys’ fees in the underlying action were reasonable” such that even though “plaintiff can claim legal malpractice as a defense in the binding arbitration, she cannot dispute defendants’ fees in this action.” (22STCV07972 Opp’n, 2:11-16, 2:23-28.)

In their opposition as plaintiffs in the 22AHCV00796 action, The Claypool Law Firm and Brian E. Claypool similarly argue that “[t]he Court in the underlying action has issued a ruling that the involved parties must adjudicate their dispute over attorney’s fees through mediation first and then binding arbitration pursuant to the One October Protocol used in the underlying action” and where “Leonard agreed to be bound by the Protocol when she opted into the underlying action, not once, but twice.” (22AHCV00796 Opp’n, 2:23-28.)

In reply, Plaintiff reiterates her points on motion. (Reply, 4:10-12.)

The Court finds that both lawsuits involve common questions of law and fact.

In the 22STCV07972 Complaint, Michelle Leonard brings claims of Professional Negligence, Breach of Fiduciary Duty, and Breach of Contract against Brian E. Claypool, The Claypool Law Firm, and Does 1-20 based on allegations that Brian E. Claypool and The Claypool Law Firm’s representation of Michelle Leonard in the One October Protocol matters fell below the standard of care and that the fee demanded of Leonard therethrough involves an unconscionable fee rate. (See 22STCV07972 Complaint, pp. 3-8.)

In the 22AHCV00796 Complaint, The Claypool Law Firm and Brian E. Claypool bring a single claim of Breach of Contract against Michelle Leonard based on allegations that Leonard breached the parties’ retainer agreement by (1) disputing the attorney fees charged by The Claypool Law Firm and Brian E. Claypool, (2) initiating a non-binding arbitration through the Los Angeles County Bar Association ACMAS, and (3) circumventing the procedure outline in the One October Protocol. (22AHCV00796, ¶¶ 61-70, Prayer for Relief, ¶¶ 1.)

Both actions thus involve common questions as to whether The Claypool Law Firm and Brian E. Claypool are properly entitled to fees for their work in the One October Protocol matters.

Brian E. Claypool and The Claypool Law Firm’s arguments that any fee disputes or related claims arising from the One October Protocol matters must be heard in arbitration do not undercut this finding. The 22STCV07972 and 22AHCV00796 actions involve common questions of law and fact.

Even if this matter is consolidated, both parties can still pursue any remedies available to them in either case, including the motion to strike currently on calendar filed by Defendants on February 7, 2023 Motion to Strike to remove fee allegations from the 22STCV07972 Complaint or to compel arbitration of those claims. Consolidation of the two cases does not in any way affect Brian E. Claypool and The Claypool Law Firm’s ability to pursue such remedies.

Further, while defendants Brian E. Claypool and The Claypool Law Firm argue that Michelle Leonard’s claims against them should be resolved through binding arbitration because they arise from matters related to the One October Protocol, they nonetheless brought a complaint against her stating a claim for Breach of Contract in their 22AHCV00796 Complaint, seeking the same $386,443.80 in attorney’s fees to which they claim to be entitled through their representation of Michelle Leonard in the One October Protocol matters. Given this posture, it seems appropriate to consolidate the matters, even if defendants retain the right to prosecute their petition to vacate the LACBA arbitration award, and then move for arbitration of any and all the claims they believe should be so arbitrated, advanced in both Complaints, given that the claims in both actions arise from matters related to the One October Protocol.

Brian E. Claypool and The Claypool Law Firm argue that consolidation of the 22STCV07972 and 22AHCV00796 actions could lead to inconsistent rulings with the Clark County District Court. The Court disagrees. While it is possible that adjudication of the 22STCV07972 and 22AHCV00796 actions could result in, to whatever degree, a possibility of inconsistent rulings with the Clark County District Court, such a danger is not posed by a simple consolidation of the two actions, which are already pending before this Court and involve common questions of law and fact.

III. Benefits Outweigh Burdens

The movant for consolidation should establish that the benefits of consolidation outweigh the burdens. (See Code Civ. Proc., § 1048, subd. (a).) To establish this, the movant should argue that consolidation will:

(1) Save time (i.e., length of time to conclude one suit versus multiple suits) (see Code Civ. Proc., § 1048, subd. (a) [“costs”]);

(2) Save money (see Code Civ. Proc., § 1048, subd. (a) [“delay”]);

(3) Help prevent the inconsistent adjudication of common and factual legal issues (see Sunrise Fin., LLC v. Superior Court (2019) 32 Cal.App.5th 114, 121; cf. Code Civ. Proc., § 404.1 [factors considered for coordination]);

(4) Lessen the burden on judicial resources (Code Civ. Proc., § 404.1 [factors considered for coordination]);

(5) Promote the convenience of the parties, witnesses, and attorneys (see Sunrise Fin., LLC v. Superior Court, supra, 32 Cal.App.5th at p. 121; cf. Code Civ. Proc., § 404.1 [factors considered for coordination]);

(6) Encourage settlement (cf. Code Civ. Proc., § 404.1 [factors considered for coordination]); and

(7) Avoid prejudice (see, e.g., Martin-Bragg v. Moore, supra, 219 Cal.App.4th at pp. 370-71 [trial court’s refusal to consolidate cases prejudiced defendant by denying opportunity for discovery and forcing litigation of complex issue in summary proceeding].)

In her motion, Plaintiff argues that because the actions involve common questions of law and fact, “consolidation of these cases will promote judicial efficiency, avoid unnecessary duplication of evidence and procedures, and avoid the substantial danger of inconsistent rulings.”

In their opposition as defendants in the 22STCV07972 action, Brian E. Claypool and The Claypool Law Firm argue because “the [Nevada] Clark County District Court’s June 24, 2021 Order is binding on this Court,” “any improper attempt by plaintiff to have a single hearing or trial on defendants’ fees and her purported legal malpractice claims will be what creates

an inconsistent ruling.”

In their opposition as plaintiffs in the 22AHCV00796 action, The Claypool Law Firm and Brian E. Claypool argue that “[t]he consolidation Leonard requests of the instant court is improper in that it is the consolidation that will result in there being inconsistent rulings” because “[t]here can be no single hearing or trial on Leonard’s alleged legal malpractice claims and disputed attorney’s fee [where] the Clark County District Court order, issued on June 24, 2021, governs” and “laid out the process for … resolving the disputed attorney’s fees.”

The Court finds that the benefits outweigh the burdens of consolidation. Quite simply, if the claims in the 22STCV07972 and 22AHCV00796 actions must be arbitrated, it would be better to consolidate the cases and dispose of any arbitration in one fell swoop rather than by piecemeal approach. If the claims are not arbitrated, consolidation of the two actions would still save time and money, avoid inconsistent adjudication of common questions of law and fact, and lessen the burden on judicial resources.

IV. Consolidation Conclusion

The Court GRANTS the Motion to Consolidate because all three required elements have been advanced by Plaintiff Michelle Leonard.

V. Local Rules, rule 3.3, subd. (g)(1)

Because the 22STCV07972 and 22AHCV00796 actions were related on March 2, 2023 and are pending before Department 40, Los Angeles County Local Rule, rule 3.3, subdivision (g)(1) is not an impediment to consolidation of these actions. (Sup. Ct., Los Angeles Cty. Loc. R., rule 3.3, subd. (g)(1) [“Cases may not be consolidated unless they are in the same department”].)

Conclusion

Plaintiff Michelle Leonard’s Motion to Consolidate the 22STCV07972 and 22AHCV00796 actions is GRANTED.