Judge: Anne Richardson, Case: 22STCV07972, Date: 2023-05-17 Tentative Ruling
Case Number: 22STCV07972 Hearing Date: May 17, 2023 Dept: 40
| Michelle Leonard, an Individual, Plaintiff, v. Brian E. Claypool, The Claypool Law Firm, and DOES 1-20 Defendants. | Case No.: 22STCV07972 Hearing Date: 5/17/23 Trial Date: N/A [TENTATIVE] RULING RE: James F. Hartman, III’s Verified Application to Appear as Counsel Pro Hac Vice [for Plaintiff Michelle Leonard]. |
MOVING PARTY: James F. Hartman, III.
OPPOSITION: [None]
James F. Hartman, III—admitted to practice law before the South Carolina Bar and the United States Federal Court District of South Carolina—makes a verified and unopposed application to appear as counsel pro hac vice for Plaintiff Michelle Leonard.
Legal Standard
Out-of-state counsel may appear before a California court as counsel pro hac vice. (Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 119, 130, as modified, Feb. 25, 1998.) To do so, out-of-state counsel must comply with requirements established in California Rules of Court, rule 9.40, subdivisions (a), (c), (d), and (e). (See Cal. Rules of Court, rule 9.40.)
First, a Pro Hac Vice application must demonstrate that the Applicant is:
(1) A member in good standing of another state bar;
(2) Eligible to practice in any United State court or the highest court in another jurisdiction; and
(3) Associated with an active member of the California Bar as attorney of record.
(Cal. Rules of Court, rule 9.40. subds. (a)(1)-(3).)
The verified application and proof of service must satisfy the requirements set out in California Rules of Court, rule 9.40, subdivision (c), which provide that a person desiring to appear as counsel pro hac vice in a superior court must:
(1) File with the court a verified application;
(2) The verified application must be accompanied by a proof of service by mail in accordance with Code of Civil Procedure section 1013a of a copy of the application and of the notice of hearing of the application on all parties who have appeared in the cause and on the State Bar of California at its San Francisco office; and
(3) The notice of hearing must be given at the time prescribed in Code of Civil Procedure section 1005 unless the court has prescribed a shorter period.
(See Cal. Rules of Court, rule 9.40, subds. (c)(1)-(3).)
The contents of the application must satisfy the requirements established in California Rules of Court, rule 9.40, subdivision (d), including:
(1) The applicant’s residence and office address;
(2) The courts to which the applicant has been admitted to practice and the dates of admission;
(3) That the applicant is a licensee in good standing in those courts;
(4) That the applicant is not currently suspended or disbarred in any court;
(5) The title of each court and cause in which the applicant has filed an application to appear as counsel pro hac vice in this state in the preceding two years, the date of each application, and whether or not it was granted; and
(6) The name, address, and telephone number of the active licensee of the State Bar of California who is attorney of record.
(Cal. Rules of Court, rule 9.40, subds. (d)(1)-(d)(6).)
The copy of the application and notice of hearing to the California Bar must include a fee of $50, per attorney, per case. (Cal. Rules of Court, rule 9.40, subd. (e).)
Counsel is also subject to the California Bar’s Rules of Professional Conduct. (Cal. Rules of Court, rule 9.40, subd. (f).)
A Pro Hac Vice application may be denied where:
(1) The application fails to the follow the requirements of California Rules of Court, rule 9.40, subdivisions (c), (d) or (e);
(2) the applicant is a California resident, regularly employed in California, or has other activities in California, (Cal. Rules of Court, rule 9.40, subds. (a)(1)-(a)(3)); or
(3) Absent special circumstances, the applicant has made repeated appearances under rule 9.40, (Cal. Rules of Court, rule 9.40, subd. (b)).
Analysis
The verified application satisfies California Rules of Court, rule 9.40, subdivisions (a)(1)-(3), because it provides a statement that James F. Hartman, III is an attorney in good standing before the South Carolina Bar, eligible to practice before the United States Federal Court District of South Carolina, who is attempting to appear on behalf of Plaintiff Michelle Leonard alongside California counsel Edward O. Lear. (Application, Verification; Application, Hartman Decl., ¶¶ 2, 3, 7.)
The verified application satisfies California Rules of Court, rule 9.40, subdivisions (c)(1) and (c)(3), because James F. Hartman, III and Edward O. Lear filed this verified application and proof of service therefor and noticed the hearing on this application in conformity with Code of Civil Procedure section 1005. (Application, Verification; Application, Proof of Service.)
However, the verified application fails to show service of this application on the State Bar of California at its San Francisco office, thus failing to satisfy California Rules of Court, rule 9.40, subdivision (c)(2).
The verified application satisfies California Rules of Court, rule 9.40, subdivisions (d)(1)-(6), because the verified application provides: (1) James F. Hartman, III’s residence and office address (Application, Hartman Decl., ¶ 1); (2) a statement providing that James F. Hartman, III has been admitted to practice law in South Carolina as of 2007 and before the United States Federal Court District of South Carolina in 2016 (Application, Hartman Decl., ¶ 2); (3) a statement that James F. Hartman, III is a licensee in good standing with those courts (Application, Hartman Decl., ¶ 2); (4) a statement that James F. Hartman, III is not currently suspended or disbarred in any court (Application, Hartman Decl., ¶ 3); (5) a statement that James F. Hartman, III has not applied to appear as counsel pro hac vice in California in the preceding two years (Application, Hartman Decl., ¶¶ 4-6); and (6) the name, address, and telephone number of Edward O. Lear, i.e., the active licensee of the State Bar of California who is the attorney of record for Plaintiff Michelle Leonard (Application, Hartman Decl., ¶ 7).
However, the verified application and notice of hearing do not currently satisfy California Rules of Court, rule 9.40, subdivision (e), because they fail to show proof of a fee of $50 paid to the California Bar by James F. Hartman, III.
The verified application is therefore GRANTED, subject to the below conditions.
James F. Hartman, III’s Verified Application to Appear as Counsel Pro Hac Vice [for Plaintiff Michelle Leonard] is GRANTED, subject to the following:
(1) Proof of service of this application on the State Bar of California at its San Francisco office;
(2) Proof of payment of $50 to the State Bar of California in connection to this application; and
(3) Proof of the two above requirements with this Court within seven calendar days of notice of this order.
Michelle Leonard, an Individual, Plaintiff, v. Brian E. Claypool, The Claypool Law Firm, and DOES 1-20 Defendants. |
Case No.: 22STCV07972 Hearing Date: 5/17/23 Trial Date: N/A [TENTATIVE] RULING RE: Plaintiff Michelle |
MOVING PARTY: Plaintiff Michelle
Leonard
OPPOSITION: Defendants
Brian E. Claypool and The Claypool Law Firm
Pre-Litigation Background
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 at 972.2057 points.
On March 10, 2021, two days after
Michelle Leonard’s point allocation was final, and completion of all the work
that The Claypool Law Firm had 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.
Arbitration and Instant
Proceedings
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 pleadings, pursuant to
California Business and Professions Code §6200 et seq., participation in
arbitration is mandatory for attorneys if initiated by a client, such that
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 grounds
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 also 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 November 3, 2022, the Complaint,
Summons, Petition to Vacate, and other documents were served on Michelle
Leonard in Arizona by substituted service. On November 4, 2022, service of the
same documents was made on Michelle Leonard by first class mail. Proof of
service was filed with the Court on December 5, 2022.
On December 6, 2022, the
22STCV07972 Complaint—initiated by Michelle Leonard in March 2022—was served on
Brian E. Claypool and The Claypool Law Firm. Proof of service was filed with
the Court on December 8, 2022.
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. The Demurrer and
Motion to Strike were set for hearing on April 25, 2023.
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, subdivision (a), with 22STCV07972 as
the lead case, and the cases being assigned to Department 40 for all purposes.
On March 7, 2023, the Court
continued the April 25, 2023 hearing on the Demurrer and Motion to Strike to
May 17, 2023.
On March 8, 2023, Michelle Leonard
filed a Motion to Consolidate in the 22STCV07972 action. The motion was set for
hearing on April 7, 2023.
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.
On April 7, 2023, the Court heard
the Leonard Motion to Consolidate, continuing the same to May 17, 2023 to be
heard concurrently with Brian E. Claypool and The Claypool Law Firm’s Demurrer
and Motion to Strike.
On May 3, 2023, Michelle Leonard
filed a First Amended Complaint for Legal Malpractice and Breach of Fiduciary Duty.
Now before the Court is Michelle
Leonard’s Motion to Consolidate.
The hearing on the Demurrer and
Motion to Strike by Defendants Brian E.
Claypool and The Claypool Law Firm is off calendar. (See 5/8/23 Notice of
Taking Motions Off Calendar.)
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 Court need
not judicially recognize those documents to make a determination on the Motion
to Consolidate. (Consolidate 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 MOOT in light of the Court’s
declination of that request and is otherwise OVERRULED as to any consideration
of the evidence submitted therethrough. (Objection to Consolidate Reply RJN.)
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. (See Consolidate Mot., pp. 3-4.)
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, 640-641 [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, 1339-1340 [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 that the 22STCV07972 and 22AHCV00796 actions are pending before the same
court—the Los Angeles Superior Court—and have been related. (Consolidate Mot., p.
3.) Defendants Brian E. Claypool and The Claypool Law Firm do not address this
element of consolidation. (See 22STCV07972 Opp’n to Consolidate Mot., pp. 2-3.)
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.” (Consolidate Mot.,
p. 4.)
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 to Consolidate
Mot., p. 2.)
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 to Consolidate Mot., p. 2.) In reply, Plaintiff reiterates her points from the motion.
(Consolidate Reply, p. 4.)
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 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 properly represented
Michelle Leonard in the One October Protocol matters and whether Brian E.
Claypool and The Claypool Law Firm are properly entitled to fees for that work.
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.
To be sure, there are still
remedies available to Brian E. Claypool and The Claypool Law Firm to address
their contention that this Court is not the proper venue for Michelle Leonard’s
claims. They could file a challenge to the First Amended Complaint. Further,
provided the cases are consolidated, Brian E. Claypool and The Claypool Law
Firm could–assuming arguendo the Court vacates the arbitration award ordered by
LACBA–move for this Court to order binding arbitration of the legal claims and prayers
for relief advanced by Michelle Leonard in her 22STCV07972 Complaint based on
Michelle Leonard’s assent to be bound by the terms of the One October Protocol.
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, the Court notes that it is
contradictory for Brian E. Claypool and The Claypool Law Firm to 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
where the Breach of Contract claim alleged by Brian E. Claypool and The
Claypool Law Firm in their 22AHCV00796 Complaint also arises from matters
related to the One October Protocol, i.e., seeks 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. Indeed, it is unclear
why Brian E. Claypool and The Claypool Law Firm do not assent to consolidation,
move to advance their petition to vacate the LACBA arbitration award to the
earliest possible date and stay the remainder of the action until the petition
to vacate is heard, obtain a favorable disposition on the petition to vacate,
and then move for arbitration of all the claims advanced in both Complaints
given that the claims in both actions arise directly or tangentially from
matters related to the One October Protocol.
Last, the Court notes that adjudication
of the 22STCV07972 and 22AHCV00796 actions is where there might arise, to
whatever degree, a danger of inconsistent rulings with the Clark County
District Court, not in consolidation of the two actions already pending
before this Court.
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.” (Consolidate Mot., p. 4.)
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.” (22STCV07972 Opp’n to Consolidate
Mot., p. 2.)
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.” (22AHCV00796 Opp’n
to Consolidate Mot., p. 3.)
In reply, Plaintiff
reiterates her points from her motion. (Consolidate Reply, p. 4.)
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 the Court finds all three required elements have been met.
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”].)
Plaintiff Michelle Leonard’s Motion to Consolidate the 22STCV07972
and 22AHCV00796 actions is GRANTED as to all purposes.