Judge: H. Jay Ford, III, Case: 22SMCV00150, Date: 2022-09-27 Tentative Ruling

Case Number: 22SMCV00150    Hearing Date: September 27, 2022    Dept: O

Case Name:  Law Offices of Berna Warner Fredman, P.C. v. Solymanijam, et al.

On the Court’s noticed motion, the Court orders this action reclassified as a limited civil case.  [Code of Civil Procedure (CCP)  §403.040(a).] 

On August 1, 2022, the Court issued an order to show cause why the matter should not be reclassified as a limited civil case and set the Court’s motion for hearing on September 27, 2022.  Having considered Plaintiff’s memorandum in opposition to the Court’s motion, the Court finds that Plaintiff’s claim necessarily involves less than $25,000. [Walker v. Sup.Ct. (1991) 53 Cal. 3d 257, 269-270.] Plaintiff seeks as award of damages for unpaid attorney’s fees of $21,105 plus prejudgment interest.  Plaintiff admits the amount in controversy only exceeds $25,000 if prejudgment interest is included in the calculation of damages.  CCP Section 86(a), however, expressly excludes all interest in determining the amount in controversy.   Without authority, Plaintiff argues CCP 85(a) “cannot be read to include prejudgment interest which is part of the damage calculation.”  Plaintiff is mistaken.  It has long been recognized that prejudgment interest is excluded from determining the amount in controversy under Section 86(a).  See, 2 Witkin, Cal. Proc. 6th Jurisd § 25, (Interest and Costs) (2022) citing Christian v. Superior Court (1898) 122 Cal. 117 (all interest, simple and compound, is excluded from determining the jurisdictional amount.); Gallagher v. McGraw (1901) 132 Cal. 601 (in an action on a note the principal of the note was the jurisdictional amount); Hargett v. Gulf Ins. Co. of Dallas, Texas (1936) 12 Cal. App. 2d 449 (a claim for interest on the sum due under a fire insurance claim must be excluded in computing the jurisdictional amount.)  See also, Edmon & Karnow, Cal. Practice Guide, Civ. Pro. Before Trial (Rutter Group , 2022) Section 3:85 (“Interest excluded: Interest on the principal sum demanded is not counted in determining the amount in controversy. This applies both to interest accrued before the action was filed and to interest accruing after filing up to the date of judgment.” (Emphasis in original.)

 Case Name:  Law Offices of Berna Warner Fredman, P.C. v. Solymanijam, et al.

On the Court’s noticed motion, the Court orders this action reclassified as a limited civil case.  [Code of Civil Procedure (CCP)  §403.040(a).] 

On August 1, 2022, the Court issued an order to show cause why the matter should not be reclassified as a limited civil case and set the Court’s motion for hearing on September 27, 2022.  Having considered Plaintiff’s memorandum in opposition to the Court’s motion, the Court finds that Plaintiff’s claim necessarily involves less than $25,000. [Walker v. Sup.Ct. (1991) 53 Cal. 3d 257, 269-270.] Plaintiff seeks as award of damages for unpaid attorney’s fees of $21,105 plus prejudgment interest.  Plaintiff admits the amount in controversy only exceeds $25,000 if prejudgment interest is included in the calculation of damages.  CCP Section 86(a), however, expressly excludes all interest in determining the amount in controversy.   Without authority, Plaintiff argues CCP 85(a) “cannot be read to include prejudgment interest which is part of the damage calculation.”  Plaintiff is mistaken.  It has long been recognized that prejudgment interest is excluded from determining the amount in controversy under Section 86(a).  See, 2 Witkin, Cal. Proc. 6th Jurisd § 25, (Interest and Costs) (2022) citing Christian v. Superior Court (1898) 122 Cal. 117 (all interest, simple and compound, is excluded from determining the jurisdictional amount.); Gallagher v. McGraw (1901) 132 Cal. 601 (in an action on a note the principal of the note was the jurisdictional amount); Hargett v. Gulf Ins. Co. of Dallas, Texas (1936) 12 Cal. App. 2d 449 (a claim for interest on the sum due under a fire insurance claim must be excluded in computing the jurisdictional amount.)  See also, Edmon & Karnow, Cal. Practice Guide, Civ. Pro. Before Trial (Rutter Group , 2022) Section 3:85 (“Interest excluded: Interest on the principal sum demanded is not counted in determining the amount in controversy. This applies both to interest accrued before the action was filed and to interest accruing after filing up to the date of judgment.” (Emphasis in original.)

 
Case Name:  Law Offices of Berna Warner Fredman, P.C. v. Solymanijam, et al.

            The test for a “substantial relationship” between cases entails an inquiry into “the similarities between the two factual situations, the legal questions posed, and the nature and extent of the attorney's involvement with the cases.”  Morrison Knudsen, supra, 69 Cal.App.4th at 234.  “The substantial relationship test is broad and not limited to the strict facts, claims, and issues involved in a particular action. A substantial relationship exists whenever the ‘subjects' of the prior and the current representations are linked in some rational manner.”  See Knight v. Ferguson (2007) 149 Cal.App.4th 1207, 1213 (citing Jessen v. Hartford Cas. Ins. Co. (2003) 111 Cal.App.4th 698).  The “subject of a current representation is substantially related to the subject of a prior representation only if the issues are sufficiently similar to support a reasonable inference that the attorney in the course of the prior representation was likely to have obtained confidential information material to the current representation.”  Fremont Indemnity Co. v. Fremont General Corp. (2006) 143 Cal.App.4th 50, 67. 

            “Where the requisite substantial relationship between the subjects of the prior and the current representations can be demonstrated, access to confidential information by the attorney in the course of the first representation (relevant, by definition, to the second representation) is presumed and disqualification of the attorney's representation of the second client is mandatory.” Jessen, supra, 111 Cal.App.4th at 706.  The presumption of access to confidential information is conclusive where there is a direct relationship between counsel and the former client.  “If the relationship between the attorney and the former client is shown to have been direct—that is, where the lawyer was personally involved in providing legal advice and services to the former client—then it must be presumed that confidential information has passed to the attorney and there cannot be any delving into the specifics of the communications between the attorney and the former client in an effort to show that the attorney did or did not receive confidential information during the course of that relationship.”  Id. at 709. 

            “On the other hand, where the former attorney-client relationship is peripheral or attenuated instead of direct, then the presumption will not be applied in the absence of an adequate showing that the attorney was in a position vis-à-vis the client to likely have acquired confidential information material to the current representation. In these circumstances, the relationship between the compared representations shares equal billing with the relationship between the attorney and the former client, and the two aspects of the Ahmanson test are assessed in combination in determining whether disqualification is mandated.”  Id. at 710.

            Even if Defendant established either direct or peripheral or attenuated attorney-client relationship with Cameron, Cameron would only be barred from representing Plaintiff against Defendant if Defendant established a substantial relationship between the prior representation and Cameron’s current representation of Plaintiff.  Defendant fails to establish that such a substantial relationship exists.

            The alleged prior representation involved post-judgment matters in a marital dissolution proceeding. The instant litigation is a collections actions seeking recovery of Plaintiff’s fees incurred in the prior marital dissolution proceeding.  The two actions involve different bodies of law (civil contract law and family law), different legal questions and entirely different factual scenarios. 

            Defendant fails to identify any confidential information Cameron could have obtained that would be relevant to the questions before this Court in the collections action—whether Plaintiff provided legal services to Defendant and whether Defendant agreed to pay for those services.  Defendant fails demonstrate that Cameron gained any specific insight into how Defendant would handle a fee dispute due to the purported prior representation.  

III. No ethical transgressions, appearance of impropriety or basis for vicarious disqualification or common interest litigation privilege.

            Defendant also argues that disqualification should be granted based on “ethical transgressions” and the “appearance of impropriety.”  However, Defendant fails to present any evidence of either.  Defendant’s evidence establishes that Cameron exchanged a few emails regarding the potential for representation and that Defendant ultimately chose to retain Plaintiff.  Cameron and Plaintiff share office space and support staff, but they are completely separate and independent law practices.  There is nothing unethical or apparently improper about these facts. 

            Defendant also raises common interest privilege as grounds for disqualification by a nonclient.  As discussed above, even if Defendant had standing to move for disqualification based on an attorney-client relationship, Defendant fails to establish that there is a substantial relationship between this collections action and the prior representation involving marital dissolution.  Moreover, Defendant is not seeking to disqualify Cameron as a former co-defendant of Cameron’s client.  See Meza v. H. Muelstein & Co., Inc. (2009) 176 Cal.App.4th 969, 980-981. 

            Finally, Defendant’s argument regarding vicarious disqualification of Plaintiff Berna Fredman are likewise inapposite.  There is in basis to impute disqualification to Berna Fredman given Defendant’s failure to demonstrate that Cameron is subject to disqualification based on a conflict of interest or that Cameron and Berna Fredman are part of a single legal practice. 

IV.  CCP §128.5 Sanctions

            Plaintiff asks that the Court impose CCP §128.5 sanctions against Defendant.  However, CCP §128.5 sanctions can only be imposed if the offending party is given a 21-day safe harbor period to withdraw or correct the challenged action or tactic.  A party seeking CCP §128.5 sanctions must file a separate, noticed motion seeking such sanctions.  See CCP §128.5(f)((1)(A).  The 21-day safe harbor applies whether sanctions are sought pursuant to a separate noticed motion by a party or pursuant to an OSC re: Sanctions by the Court.  See CCP §128.5(f)(1)(B) and (d).  Because no separate motion for CCP §128.5 sanctions was brought and the 21-days safe harbor requirement cannot be satisfied, Plaintiff’s request for CCP §128.5 sanctions is denied.  

Case Name:  Law Offices of Berna Warner Fredman, P.C. v. Solymanijam, et al.

SUBJECT:                MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:   Plaintiff Law Office of Berna Werner Fredman, PC

RESP. PARTY:         Defendant Shervin Solymanijam

TENTATIVE RULING

            Plaintiff’s Motion for Summary Judgment is DENIED. 

            Defendant’s Objections are SUSTAINED as to Melendez’s declaration based on failure to date the declaration per CCP §2015.5. 

            Defendant’s Objections are OVERRULED as to Objection Nos. 1-12, 14-16, 18-36 and SUSTAINED as to Objection Nos. 13, 17

I.  Burden of plaintiff moving for summary judgment

            “A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP §437c(p)(1).  

            “A party is entitled to summary judgment only if it meets its initial burden of showing there are no triable issues of fact and the moving party is entitled to judgment as a matter of law. This is true even if the opposing party fails to file any opposition.  The court's assessment of whether the moving party has carried its burden—and therefore caused a shift—occurs before the court's evaluation of the opposing party's papers.  Therefore, the burden on the motion does not initially shift as a result of what is, or is not, contained in the opposing papers.”  Mosley v. Pacific Specialty Insurance Company (2020) 49 Cal.App.5th 417, 434–435 (landlord’s failure to address issue of whether they were aware of their tenant’s marijuana growing operation was not grounds to grant summary judgment where moving party failed to satisfy its initial burden as to the issue); Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086-1087 (court cannot grant summary judgment based merely on lack of opposition; court must first determine if the moving party has satisfied its burden).  

            In addition, the evidence and affidavits of the moving party are construed strictly, while those of the opponent are liberally read.  See Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 100.  “All doubts as to the propriety of granting the motion (whether there is any issue of material fact [Code of Civil Procedure] § 437c) are to be resolved in favor of the party opposing the motion (i.e., a denial of summary judgment).”  Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.  

II.  Plaintiff fails to submit evidence establishing the requested damages

            According to the separate statement, Plaintiff is seeking “$21,106 plus interest.”  See SSUMF No. 11; Motion, Dec. of B. Warner, ¶11; Plaintiff’s Compendium of Evidence, Ex. G, p. 19.  Plaintiff’s proposed order sets forth a different principal amount of damages and leaves the amount of interest blank.  See Proposed Order submitted on 7-12-22, ¶2. 

            Plaintiff fails to establish there are no triable issues of fact as to the amount of damages sought based on undisputed evidence.  First, the proposed order, Ex. G and the declaration of Berna Warner Fredman list different amount of principal.

            Second, it is unclear what amount of “interest” Plaintiff seeks and whether the “interest” reference is prejudgment or post judgment interest.  Exhibit G sets forth $293.16 in interest on the overdue balance.  Is this the total amount of prejudgment interest sought by Plaintiff? 

            In addition, if Plaintiff is seeking prejudgment interest, Plaintiff was required to submit evidence substantiating the amount of prejudgment interest requested, e.g. the rate of interest, the period of accrual and the total amount of interest to be included in the judgment.  “It is well established that prejudgment interest is not a cost, but an element of damages.  This distinction persuades us that the cost bill is not an appropriate vehicle for requesting interest under section 3287. In our view, prejudgment interest should be awarded in the judgment on the basis of a specific request therefor made before entry of judgment.”  North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824, 830. 

            Plaintiff was required to establish each element of its causes of action with admissible evidence to satisfy its burden as moving party on summary judgment. Plaintiff failed to submit evidence to support its full damages claim.  Plaintiff’s motion for summary judgment is DENIED.

II.  Defendant raises a triable issue of fact as to Plaintiff’s performance and damages

            Defendant also raises a material issue of fact regarding Plaintiff’s performance under the retainer agreement.  Pursuant to ¶7 of the Retainer Agreement, Plaintiff was required to render monthly bills and Defendant was required to review the bills and raise any objections within 30 days of the date of each statement.  Defendant testifies that she did not receive any bills from Plaintiff from March 1, 2018 through March 9, 2022.  See Defendant’s Opposition, ¶8.  Defendant contends she could not review and object to the bills for this reason.  Defendant’s testimony contradicts Fredman and Melendez’s testimony that they mailed bills to Defendant on 6-7-18, 8-24-18, 10-5-28 and 3-8-19.  See Motion, Dec. of B. Fredman, ¶14; Dec. of A. Melendez, ¶6.

            Defendant also raises a triable issue of material fact regarding the reasonableness of the fees charged, which impacts the elements of performance and damages.  Plaintiff testifies that she alone performed all the work invoiced.  See Motion, Dec. of B. Fredman, ¶15.  Plaintiff also submits evidence of the tasks performed.  See Motion, Dec. of B. Fredman, ¶¶18-19. 

            In response, Defendant argues Fredman’s fees are not justified, because prior counsel performed a great deal of work.  Defendant testified Plaintiff received 6 boxes of work from prior counsel, but when Defendant retrieved her file from Fredman, Fredman only returned 5 boxes.  See Opposition, Dec. of S. Solymanijam, ¶17.  Defendant testifies that Fredman copied and pasted the former attorney’s work product, used Judicial Council Forms for medication of Child and Spousal Support and was unsuccessful in obtaining the requested order.  Id.

            Defendant also testifies that Plaintiff stated to the family law court that Defendant’s outstanding bills as of 9-28-18 was $10,000.  See Dec. of S. Solymanijam, ¶19.  A transcript of the proceeding has also been provided.  See Defendant’s Index of Evidence, Exhibit 1.  However, the invoice dated 10-5-18, only a few days later, shows total fees of $24,245.  Id. at ¶19.   

            Finally, triable issues of fact remain as to the elements of Plaintiff’s performance and damages.  Plaintiff’s Motion for Summary Judgment is DENIED.