Judge: Curtis A. Kin, Case: 20STCV18681, Date: 2022-08-30 Tentative Ruling
Case Number: 20STCV18681 Hearing Date: August 30, 2022 Dept: 72
MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY SUMMARY
ADJUDICATION
Date: 8/30/22
(9:30 AM)
Case: Richard Pech v. Afshin
Moghavem et al. (20STCV18681)
TENTATIVE
RULING:
Defendants Afshin Moghavem; Afshin Moghavem, Inc.; and
Prodigy Brands, LLC’s Motion for Summary Judgment, or Alternatively Summary
Adjudication is GRANTED.
Plaintiff Richard Pech’s evidentiary objections are
OVERRULED.
Defendants Afshin Moghavem; Afshin Moghavem, Inc.; and
Prodigy Brands, LLC move for summary judgment, or alternatively summary
adjudication.
As a preliminary matter, the current causes of action
against moving defendants are the first cause of action for Fraudulent
Concealment, the second cause of action for Fraudulent False Promise, the
fourth cause of action for Breach of Contract, and the fifth cause of action
for Quantum Meruit. The third cause of action for Interference with Contract
was stricken on September 30, 2020 pursuant to defendants’ special motion to
strike. The Court of Appeal affirmed the order as to the Interference with
Contract cause of action. (Pech v. Moghavem (2021) 2021 WL 4099072, at
*6.) The fourth cause of action for Breach of Contract was also stricken on
September 30, 2020, pursuant to defendants’ special motion to strike. However,
the Court of Appeal reversed as to the Breach of Contract cause of action. (Id.)
A.
COMPLIANCE WITH RULE OF COURT 3.1350
Plaintiff Richard Pech opposes the motion solely on the
ground that defendants did not set forth each cause of action for which they
seek summary adjudication, as required by Rule of Court 3.1350(b) and 3.1350(d)(1).
However, the Court has discretion to deny summary adjudication based on
non-compliance with Rule of Court 3.1350. (Truong v. Glasser (2009) 181
Cal.App.4th 102, 118.) Even though defendants did not set forth the causes
of action in the separate statement filed with the moving papers, defendants’
memorandum of points and authorities cites to the relevant facts in the
discussion of each cause of action. Defendants referenced undisputed material
fact (“UMF”) 1, 19, and 20 in the discussion of the first cause of action for
Fraudulent Concealment. (Mtn. at 6:1-8:20.) With respect to the second cause of
action for Fraudulent False Promise, defendants cite to UMF 21-23. (Mtn. at
8:21-10:6.) With respect to the fourth cause of action for Breach of Contract,
defendants cite to UMF 24-30. (Mtn. at 10:17-16:13.) With respect to the fifth
cause of action for Quantum Meruit, defendants cite to paragraphs 86-88 of the
Complaint, which are binding judicial admissions against plaintiff. (Mtn. at
16:14-17:28; Uram v. Abex Corp. (1990) 217 Cal.App.3d 1425, 1433 [“A
defendant moving for summary judgment may rely on the allegations contained in
the plaintiff's complaint, which constitute judicial admissions. As such they
are conclusive concessions of the truth of a matter and have the effect of
removing it from the issues”].)
The facts upon which defendants are moving for summary
adjudication with respect to each cause of action were sufficiently identified.
Plaintiff does not explain how the lack of identification of the causes of
action in the separate statement hindered plaintiff from opposing the motion
with respect to each cause of action. Accordingly, the Court declines to
exercise any discretion to deny summary adjudication based on failure to comply
with Rule of Court 3.1350. (See Truong, 181 Cal.App.4th at 118 [“The
facts critical to the ruling were adequately identified, and Plaintiffs have
not explained how any alleged deficiency in Glasser's Separate Statement of
Material Facts impaired Plaintiffs' ability to marshal evidence to show that
material facts were in dispute as to the proper application of the statute of
limitations”].)
Plaintiff cites to Teselle v. McLoughlin (2009) 173
Cal.App.4th 156 for the assertion that a failure to comply with CCP §
437c(b)(1) requires denial of a summary judgment motion. (Teselle, 173
Cal.App.4th at 171 [“[T]he moving party must comply with the provisions of
subdivision (b)(1) and its separate statement must address the allegations of
material fact in the complaint. If, as here, the moving parties fail to do so,
the motion for summary judgment must be denied”].) Even if failure to comply
with section 437c(b)(1) requires denial, that section merely states with
respect to the requirement for a separate statement that “[t]he supporting
papers shall include a separate statement setting forth plainly and concisely
all material facts that the moving party contends are undisputed.” (CCP § 437c(b)(1).) Here, defendants comply
by setting forth all facts they contend are undisputed. Insofar as defendants
did not include headings with the causes of action in support of the moving
separate statement, as discussed above, the Court has discretion whether to
deny summary adjudication based on failure to comply with Rule of Court
3.1350(b) and 3.1350(d)(1). As stated above, the Court declines to exercise
this discretion.
B.
FIRST CAUSE OF ACTION: FRAUDULENT CONCEALMENT
With respect to the first cause of action for Fraudulent
Concealment, this cause of action is based on defendants’ purported concealment
of settlement negotiations with the third parties against whom plaintiff was
preparing a complaint. (Compl. ¶¶ 52-56.) Even assuming arguendo
defendants had a duty to disclose that they were in settlement negotiations with
those third parties (Boschma v. Home Loan Center, Inc. (2011) 198
Cal.App.4th 230, 248 [element of fraud by omission is that defendant must have
been under a duty to disclose fact to plaintiff]), defendants present evidence
that they filed the lawsuit against the third parties instead of settling,
which plaintiff conceded in the opposition to the special motion to strike
filed by defendants. (UMF 1, 19.) Accordingly, defendants meet their initial
burden to demonstrate that they may not have concealed or suppressed a material
fact. (Boschema, 198 Cal.App.4th at 248.) On its shifted burden, plaintiff
did not provide any evidence indicating any fact that defendants may have
concealed. Accordingly, the motion for summary adjudication with respect to the
Fraudulent Concealment cause of action is well taken.
C.
SECOND CAUSE OF ACTION: FRAUDULENT FALSE PROMISE
With respect to the second cause of action for Fraudulent
False Promise, “[a] promise to do something necessarily implies the intention
to perform; hence, where a promise is made without such intention, there is an
implied misrepresentation of fact that may be actionable fraud.” (Lazar v.
Superior Court (1996) 12 Cal.4th 631, 638.) The second cause of action is
based on defendants’ alleged false promises to pay plaintiff on an hourly or
contingency fee basis and to file a complaint against third parties as an
inducement for plaintiff to work on their case. (Compl. ¶¶ 63, 64.)
With respect to the alleged promise to pay plaintiff’s fees,
defendants present evidence that they may have intended to pay the fees because
they requested billing statements from plaintiff. (UMF 22, 23.) On its shifted
burden, plaintiff did not provide any evidence indicating that defendants may
not have intended to pay plaintiff.
With respect to the promise to file a Complaint, “the law
does not recognize a tort cause of action for damages for the client's decision
to abandon [an unwanted lawsuit], because that would equally constrain
defendant to keep his lawsuit alive just for his attorney's profit, despite his
own fears and desire to abandon the case.” (Lemmer v. Charney (2011) 195
Cal.App.4th 99, 105.) Defendants thus demonstrate that plaintiff cannot base a
cause of action based on defendants’ decision to revoke plaintiff’s authority
to file the lawsuit against the third parties. (Comment to Rule of Professional
Conduct 1.2 [client may revoke authority for lawyer to act on client’s behalf
without further consultation].) In
opposition, plaintiff provides no argument to the contrary.
Accordingly, the motion for summary adjudication with
respect to the Fraudulent False Promise cause of action is well taken.
D.
FOURTH CAUSE OF ACTION: BREACH OF CONTRACT
With respect to the fourth cause of action for Breach of
Contract, plaintiff bases this cause of action on defendants’ revocation of
plaintiff’s authority to file the lawsuit, which would have vested a
contingency fee. (Compl. ¶ 83.) Defendants have the absolute right to terminate
plaintiff’s representation of them. (Fracasse v. Brent (1972) 6 Cal.3d
784, 790, citing CCP § 284 [“It has long been recognized in this state that the
client's power to discharge an attorney, with or without cause, is absolute”].)
The retainer agreement between the parties recognizes this long-standing principle. (Doniger Decl. ¶ 7 & Ex. 6 at ¶ 7.2
[“Client has the absolute right under California law to discharge Attorney for
any reason with or without cause and wit or without notice”].)
To the extent that the Breach of Contract cause of action is
based on a failure to pay contingency fees (Compl. ¶¶ 63-65, 79), defendants
present evidence that the retainer agreement between the parties provided that
a contingency fee is dependent on actual recovery. (UMF 25, 26.) Defendants
also provide evidence that there has been no recovery in the lawsuit against
the third parties. (UMF 27.) On its shifted burden, plaintiff did not provide
any evidence indicating that defendants may owe plaintiff any contingency fee.
To the extent that the Breach of Contract cause of action is
based on a failure to pay hourly fees (Compl. ¶¶ 63-65, 79), defendants do not
cite any authority indicating that a contractual provision requiring the client
to pay hourly fees if the client discharges the attorney without cause is
invalid. (UMF 28.) In any event, defendants present evidence that they
requested a bill from plaintiff, as allowed by paragraph 5 of the retainer
agreement, but plaintiff has not done so. (UMF 29, 30.) Accordingly, defendants
demonstrate that any obligation for them to pay plaintiff’s hourly fees may be
excused by plaintiff’s non-compliance with paragraph 5. (CACI 303 [element of
breach of contract is plaintiff performing significant obligations under
contract]; Ray Thomas, Inc., v. Cowan (1929) 99 Cal.App. 140, 145 [“‘A
party to a contract cannot take advantage of his own act or omission, to escape
liability thereon. Under this rule performance of a contract is excused when it
is prevented by the acts of the opposite party, or is rendered impossible by
him’”].) In opposition, plaintiff did not provide any evidence indicating that
defendant may not have been excused from paying hourly fees.
Accordingly, because the Breach of Contract cause of action
is based on either non-actionable termination of plaintiff’s representation of
defendants or failure to pay hourly or contingency fees, about which plaintiff
does not demonstrate a triable issue, the motion as to the Breach of Contract
cause of action is well taken.
E.
FIFTH CAUSE OF ACTION: QUANTUM MERUIT
With respect to the fifth cause of action for Quantum Merit,
plaintiff bases this cause of action on defendants’ alleged failure to pay
attorney’s fees despite express promises to pay for legal services. (Compl. ¶
86.) “A quantum meruit or quasi-contractual recovery rests upon the equitable
theory that a contract to pay for services rendered is implied by law for
reasons of justice. [Citation.] However, it is well settled that there is no
equitable basis for an implied-in-law promise to pay reasonable value when the
parties have an actual agreement covering compensation.” (Hedging Concepts,
Inc. v. First Alliance Mortgage Co. (1996) 41 Cal.App.4th 1410, 1419.)
Here, defendants present evidence that the parties had a written retainer
agreement governing the fees that were to be paid to plaintiff. (UMF 25, 26,
28.) Accordingly, defendants demonstrate that plaintiff may not be entitled to
quantum meruit recovery based on the retainer agreement. Plaintiff did not
provide any argument indicating a triable issue as to quantum meruit.
Accordingly, the motion for summary adjudication with
respect to the Quantum Meruit cause of action is well taken.
F.
CONCLUSION
Because plaintiff does not demonstrate a triable issue as to
any cause of action, the motion for summary judgment is GRANTED.