Judge: Kenneth J. Medel, Case: 37-2022-00021936-CU-BC-CTL, Date: 2023-11-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 02, 2023

11/03/2023  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2022-00021936-CU-BC-CTL SOOFI VS RABINOVITCH MANTEL [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 09/20/2023

Defendants BONNIE A. RABINOVITCH-MANTEL, TIFFANY K. BROWN and PRIMUS FAMILY LAW GROUP's MOTION FOR 1) AN ORDER REQUIRING PLAINTIFF TO FURNISH SECURITY (CCP §§ 391.1, 391.3); AND 2) ENTRY OF A PREFILING ORDER (CCP § 391.7) IS GRANTED.

Background Plaintiff's First Amended Complaint alleges that, in April, 2017, he sustained physical and emotional injuries as the result of a physical assault perpetrated by his adult stepson. Plaintiff alleges his son was acting in conspiracy with his then-wife Ms. Khavari ('Wife'). (FAC, 4:04-06.) His wife then filed a petition for dissolution of marriage. (Id., 4:07-09.) On August 22, 2017, the court issued an Order for Plaintiff's payment of $10,000 per month in spousal support to his former wife, effective July 1, 2017, and $20,000 toward his former wife's attorney's fees. (Ex. 2, 1:17-19; see also Ex. 4.) On September 19, 2017, plaintiff's former wife filed a Request for Order ('RFO') requesting that the Court '[a]ppoint receiver to collect revenue from [Plaintiff's] business to satisfy spousal support order and attorney fees ordered.' (Ex. 3.) On November 28, 2017, after multiple hearings and further briefing on the issue (see Ex. 5; Ex. 6), the court issued an Order granting Wife's RFO and appointed a receiver to investigate income sources of respondent and powers set forth in CCP 564. (Ex. 7, at pp. 1-2.) Following that hearing, Plaintiff dismissed his second counsel of record in the proceeding and began searching for a third family law attorney to represent him in the dissolution. (FAC, 5:03-07.) In December, 2017, plaintiff retained Defendants in this case. Ms. Mantel of Primus Family Law Group at the time advertised a free first consultation. (Id., 5:09-11.) On December 5, 2017, Plaintiff had an initial consultation with Mantel. (Id., 5:11-14,¶:15.) During the consultation, Mantel allegedly made statements 'which collectively led Plaintiff to retain Mantel and her family law firm,' all of which are identified in the FAC.

Plaintiff signed an Attorney-Client Fee Agreement with Primus (id., 8:15-26) which is attached as Exhibit 3 to the FAC.

Plaintiff concedes that he initialed the Fee Agreement in full and signed it. He alleges he signed the Fee Agreement without reading it and Mantel did not suggest he should read the agreement before signing.

(Id., 8:21-27.) Plaintiff claims his mental state and medications were such that 'no reasonable man can truly believe' he read and understood the Fee Agreement. (Id., 8:24-26, 9:03-06.) On December 29, 2017, the Court entered a Final Receivership Order. Plaintiff allegedly called attorney Mantel to 'remind' her about reviewing and editing the draft court appointed receivership order such that it would only apply to Plaintiff's business assets and not his personal funds, and Mantel allegedly told him 'receivership order[s], were standard orders, and no change can be made to the content of those order[s].' (Id., 13:03- 10.) The day after the December 13, 2017 hearing, Mantel repeated the same legal opinion. (Id., 13:13-15.) Defendant Brown appeared on behalf of Plaintiff at the December 13, 2017 hearing. (Id., 14:03.) During the hearing, the Court received the proposed receivership order prepared Calendar No.: Event ID:  TENTATIVE RULINGS

3023014  35 CASE NUMBER: CASE TITLE:  SOOFI VS RABINOVITCH MANTEL [IMAGED]  37-2022-00021936-CU-BC-CTL by Wife's attorney. (FAC, at Ex. 10.) On December 29, 2017, the Court entered the proposed order, but struck a provision addressing posting of a bond and an advanced retainer. (Ex. 12, 2:03-06.) On May 7, 2018, the Court signed a stipulated order discharging the receiver following Plaintiff's payment of the outstanding ordered fees, after Mantel successful reduced spousal support to $1,000 per month with payment of arrears on hold until the time of trial. (Mantel Decl., ¶¶ 2, 6; Ex. 38.) The Order appointed Kevin Singer as Receiver 'to aid in judgment enforcement and to collect all income from the business of [Plaintiff],' with the power to 'demand, collect and receive the Business revenue' and to take possession of funds on deposit in any accounts in the name of Plaintiff or the Business 'to the extent that said account contains the revenue' generated by the Business. (FAC, 1:20-22, 2:13, 2:17-24.) On January 17, 2018, with Plaintiff's authorization, Defendants obtained a continuance of the evidentiary hearing on Wife's request for spousal support. (Ex. 19; see FAC, 49:01-02.) Plaintiff failed to pay fees and costs incurred by counsel. On January 25, 2018, Plaintiff entered into a Monthly Payment Agreement with Primus, agreeing Plaintiff would pay the firm $2,000 per month toward his outstanding balance. (FAC, 16:28-17:02, 18:13-14; id., Ex. 6.) Plaintiff, however, did not comply with the payment agreement. (Id., 18:20-21.) On September 21, 2018, Mantel presented for Plaintiff's signature: 1) a Family Law Attorney Real Estate Property Lien ('FLARPL') for $75,000 against his property; and 2) a Notice of Intent to Record. (Id., 19:16-23; Exs. 45, 49.) Plaintiff at that time was unable to pay the $30,000 outstanding balance, and Plaintiff believed Mantel when she said she would withdraw from Plaintiff's case if he did not sign the lien. (FAC, 19:24-26, 20:24, 23:23-25.) Plaintiff believed that, as the third attorney to represent him, Mantel's withdrawal would have been 'catastrophic' to his case. (Id., 23:27-28.) Plaintiff alleges he agreed to accept the $75,000 amount on the FLARPL for practical purposes and make payments toward the bill until such time in the future that a check and balance would take place addressing all billing disputes, additional charges, and additional payments, to then determine 'the real amount' of the FLARPL. (Id., 23:05-14.) At Plaintiff's request, an Addendum was prepared to clarify that 'only the actual amount owing shall be subject to the Lien.' (Id., 24:02-08; Ex. 50, at p. 3.) Mantel allegedly told Plaintiff the FLARPL and Notice of Intent to Record were just precautionary measures to ensure her bills were paid and would not be recorded unless the bill is not ultimately paid once the total amount of the FLARPL is accurately determined. (Id., 25:04-10.) Plaintiff signed the documents, and Mantel recorded the FLARPL/Addendum on October 22, 2018. (Id., 25:13; Exs. 49, 50.) In May 2021, Plaintiff for the first time requested a copy of the signed FLARPL and received a recorded copy from Defendants. (Id., 25:22-23; Compl., 17:14-20.) On June 15, 2021, Defendants' 3.5-year representation of Plaintiff came to an end with an outstanding balance of more than $120,000. (FAC, 10:08, 54:07-08.) On February 27, 2023, Plaintiff filed the First Amended Complaint ('FAC'), containing numerous allegations against Mantel and related counsel. The FAC alleges causes of action for 1) Breach of Fiduciary Duty; 2) Professional Negligence; 3) False Promise-Misrepresentation Concealment; 4) Billing Fraud; 5) Breach of Implied Covenant of Good Faith and Fair Dealing; 6) Defamation; and 7) Invasion of Privacy.

Based on discovery responses received by defendants, plaintiff is alleging professional negligence leading to the court-appointed receiver's access to Plaintiff's personal property resulting in damages in an amount to be determined. Plaintiff states that on November 28, 2017, the family court orally directed counsel to work together to draft an order for appointment of receiver that would only apply to Plaintiff's business USA Pharma and that business' bank accounts, and that but-for Defendants' alleged negligence the final receivership order would not have applied to Plaintiff's personal account and residence from which the business operated. (Ex. 99, No. 14, at 12:23-28, 13:07-11.) Plaintiff claims that the steady demise of his business over the few months while the receivership order was carried out was caused by the absence of a functional bank account to conduct business, the threat of seizure of his home, and 'some other' unidentified 'factors.' (Ex. 99, No. 14, at 13:11-15.) Plaintiff is also alleging professional negligence leading to the continuance of the January 19, 2018 evidentiary hearing which prolonged the proceedings and resulted in fees and costs paid to various professionals. Plaintiff claims that he had asked Defendants to prepare for the evidentiary hearing of January 19, 2018 'which could have likely been the end of the divorce proceedings or at least most of it[.]' (Ex. 99, No. 16, at 21:11-14.) Plaintiff alleges false promises and misrepresentations relating to obtaining the FLARPL, the amount of Calendar No.: Event ID:  TENTATIVE RULINGS

3023014  35 CASE NUMBER: CASE TITLE:  SOOFI VS RABINOVITCH MANTEL [IMAGED]  37-2022-00021936-CU-BC-CTL the FLARPL, and the recording of the FLAPRL which has caused damages.

He further alleges false promises and misrepresentation about the billing style and practice that caused the large outstanding balance sought by the cross-complaint in this action as well as alleged acts of 'billing fraud' over the course of the representation.

Motion and Standard DEFENDANTS have filed a motion for an order requiring plaintiff to furnish security to continue his action because he is a 'vexatious litigant' as defined in CCP 391(b)(1). DEFENDANTS further request an pre-filing order pursuant to CCP § 391.7.

A 'vexatious litigant' is any person who '[i]n the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person[.]' (Code Civ. Proc., § 391, subd. (b)(1).) Within this context, 'litigation' 'means any civil action or proceeding, commenced, maintained or pending in any state or federal court.' (Code Civ. Proc., § 391, subd. (a).) '[A]ny civil action or proceeding' includes the filing of a cross-complaint (Blizzard Energy, Inc. v. Schaefers (2022) 85 Cal.App.4th 802, 807-808), and 'any appeal or writ proceeding.' (Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1170.) The result on appeal is considered separately from the result in the trial court.

(See id., at p. 1171 ['The appellate court affirmed the judgment [in appellant's favor], thereby finally determining the appeal adversely to [appellant] within the meaning of section 391, subdivision (b)(1).'].) A vexatious litigant finding may be based on appeals of multiple orders within the same case that are 'finally determined adversely' to the appellant. (Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 1005-1006.) Litigation 'is finally determined adversely to a plaintiff if he does not win the action or proceeding he began, including cases that are voluntarily dismissed by a plaintiff.' (Garcia v. Lacey (2014) 231 Cal.App.4th 402, 406-407.) 'Finally determined' means all avenues for direct review have been exhausted or expired. (Childs, supra, 29 Cal.App.4th at p. 994.) The filing of the motion establishes point from which 7-year period retroactively measured. Stolz v. Bank of America (1993) 15 Cal.App.4th 217, 224. Here, with Defendants filing this Motion on September 20, 2023, the pertinent seven-year window extends to September 20, 2016.

As detailed below, since September 20, 2016, Plaintiff has maintained in pro per at least 5 litigations that were finally determined adversely to him: 1) Soofi v. Contreras Law Firm (37-2018-0040211): filed in pro per on August 13, 2018 (Ex. 39), and finally determined adversely on October 16, 2019 (Exs. 60, 66); 2) Soofi v. Contreras Law Firm (D076884): filed in pro per on October 18, 2019 (Ex. 67), and finally determined adversely on July 7, 2021 (Ex. 91); 3) Soofi v. Dunne (2019-37-2019-0001874): filed in pro per on January 11, 2019 (Ex. 54), and finally determined adversely as to 7 defendants between July 1, 2019-October 18, 2021 (Exs. 61-63, 77-78, 80, 89, 92), while a default judgment was entered against 2 defendants in 2022 (Ex. 94); 4) Soofi v. Smith (D076082): filed in pro per on June 10, 2019 (Ex. 58), and finally determined adversely on October 15, 2020 (Ex. 76); 5) Soofi v. Javidan (37-2019-00012673): filed in pro per on March 8, 2019 (Ex. 55), and finally determined adversely on December 6, 2019 (Ex. 71), and January 7, 2022 (Ex. 93); 6) Soofi v. Khavari (D077224): filed in pro per on January 21, 2020 (Ex. 74), and finally determined adversely on July 29, 2020 (Ex. 75); 7) Soofi v. Adli Law Group (BC691656): filed in pro per on November 6, 2018 (Ex. 53), and finally determined adversely on April 24, 2019 (Ex. 56).

8) Soofi v. Adli Law Group (B293233): filed in pro per on October 16, 2018 (Ex. 105, p. 1), and finally determined adversely on May 31, 2019 (Ex. 105, p. 2). (Chase Decl., ¶ 34.) Plaintiff argues in Opposition that Plaintiff is not a vexatious litigant as defined under CCP § 391 (b)(2)-(4). These provisions address issues such as repeated re-litigation of issues, filing of unmeritorious pleadings, unnecessary discovery, and other frivolous tactics. However, plaintiff's position is not relevant given that this motion is based solely under CCP § 391 (b)(1), which has nothing to do with such improper conduct or motives.

Plaintiff does not dispute that the eight proceedings set forth above fall within the seven-year timeframe imposed by CCP § 391(b)(1); that he commenced, prosecuted, or maintained the proceedings in pro per; or that the proceedings have been finally determined (Motion, 12:28-13:11). The only relevant Calendar No.: Event ID:  TENTATIVE RULINGS

3023014  35 CASE NUMBER: CASE TITLE:  SOOFI VS RABINOVITCH MANTEL [IMAGED]  37-2022-00021936-CU-BC-CTL challenge in the Opposition is whether those proceedings were determined adversely to Plaintiff sufficient for a vexatious litigant finding.

The Court has reviewed the Opposition and the Reply and determines that the eight proceedings were adversely determined against plaintiff. At the same time, this Court need not decide these issues to rule on the Motion. Excluding from consideration the two cases discussed in the Opposition (Soofi v. Adli Law Group matters (BC691656 and B293233), and the Soofi v. Dunne matter (2019-37-0001874)), Plaintiff has maintained in pro per 5 litigations that were finally determined adversely to him.

Plaintiff's other arguments related to the constitutionality of the vexatious litigant statute have been addressed and rejected by the courts. ' (Bravo v. Ismaj (2002) 99 Cal. App. 4th 211, 222; accord Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1170-1171 ['The vexatious litigant statutes . . . have been upheld as constitutional.'].) The Court agrees with plaintiff that the result is extreme and should be issued with caution. Thus, the Court reviews the claims in detail. Defendants have provided to the Court a very thorough and detailed analysis of the claims, which the Court accepts.

Pre-Filing Order '[T]he court may, on its own motion or the motion of any party, enter a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed.' (Code Civ. Proc., § 391.7, subd. (a).) 'The remedy provided in section 391.7 is in addition to the other remedies provided by the vexatious litigant statutes.' (Holcomb v. U.S. Bank Nat. Assn. (2005) 129 Cal.App.4th 1494, 1500.) Because Plaintiff meets the criteria for being a 'vexatious litigant' within the meaning of CCP § 391(b)(1), the Court enters a prefiling order restricting Plaintiff's ability to file future lawsuits as contemplated by CCP § 391.7.

Security '[A]t any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security . . . . The motion for an order requiring the plaintiff to furnish security shall be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that they will prevail in the litigation against the moving defendant.' (Code Civ. Proc., § 391.1, subd. (a).) When a motion for security is filed prior to trial the litigation is stayed. (Code Civ. Proc., § 391.6.) The moving party's showing 'that there is no reasonable likelihood of the plaintiff prevailing in the action against that defendant' may be made either 'by the weight of the evidence' or 'by demonstrating that the plaintiff cannot prevail in the action as a matter of law.' (Golin v. Allenby (2010) 190 Cal.App.4th 616, 642 [noting moving parties could have challenged complaint 'for potentially dispositive pleading defects'].) A 'court's decision that a vexatious litigant does not have a reasonable probability of success is based on an evaluative judgment[.]' (Garcia, supra, 231 Cal.App.4th at p. 408.) The court is not bound to assume the truthfulness of the vexatious litigant's complaint; instead, '[i]t is for the trial court to weigh the evidence' presented by the parties. (Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 784-785.) Pleading Deficiencies of the First Amended Complaint 'Following an order sustaining a demurrer . . . with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order.' (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1022-1023.) On January 27, 2023, this Court sustained Defendants' Demurrer to the Complaint. In sustaining Defendants' prior Demurrer, this Court granted leave to amend only as to the False Promise claims and the delayed discovery rule, and solely as to Ms. Mantel and Primus Family Law Group. (Ex. 96, p. 2.) As such, the other new claims in the FAC are invalid, including: the False Promise claim against Ms. Brown; conversion claims inserted in the False Promise cause of action; Billing Fraud, Breach of Implied Covenant of Good Faith and Fair Dealing, Defamation, and Invasion of Privacy causes of action; and the addition of Bonnie. A. Mantel, APC.

Even if considered, causes of action nos. 3-7 against Brown and causes of action no. 1-7 against Bonnie A. Mantel, APC lack any allegations to support the claims against them.

Fraud-Based Causes of Action 'The elements of fraud are: (1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) Calendar No.: Event ID:  TENTATIVE RULINGS

3023014  35 CASE NUMBER: CASE TITLE:  SOOFI VS RABINOVITCH MANTEL [IMAGED]  37-2022-00021936-CU-BC-CTL justifiable reliance; and (5) resulting damage.' (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 990.) Fraud actions 'are subject to strict requirements of particularity in pleading.' (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) This requires 'pleading facts which 'show how, when, where, to whom, and by what means the representations were tendered.'' (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) 'Every element of the cause of action for fraud must be alleged in the proper manner' (Ibid.), 'i.e., factually and specifically' (Hall v. Dept. of Adoptions (1975) 47 Cal.App.3d 898, 904). 'General and conclusory allegations do not suffice.' (Lazar v. Sup. Ct. (1996) 12 Cal.4th 631, 645.) The FAC's False Promise cause of action is entirely predicated on the same allegations as the Complaint's defective False Promise claim. Plaintiff again alleges that on December 5, 2017, Ms. Mantel represented that: 1) she would not charge for the initial consultation; 2) she would not charge for email exchanges with clients; 3) her legal fees were fair and reasonable; and 4) she would attend the hearings on December 13, 2017, and January 17, 2018. Plaintiff further alleges that on September 21, 2018, Ms.

Mantel represented the FLARPL would not be recorded until the final amount of the lien was agreed to by the parties and Plaintiff was ultimately unable to pay the amount owing. As with the original Complaint, the False Promise cause of action is deficient as a matter of law because 'there are no allegations which support a finding of intent to defraud at the time the alleged misrepresentations were made.' (Ex. 96, p. 2.) 'A promise of future conduct is actionable as fraud only if made without a present intent to perform.' (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 481.) 'A declaration of intention, although in the nature of a promise, made in good faith, without intention to deceive, and in the honest expectation that it will be fulfilled, even though it is not carried out, does not constitute a fraud.' (Ibid. ['an erroneous belief, no matter how misguided, does not justify a finding of fraud'].) '[S]omething more than nonperformance is required to prove the defendant's intent not to perform his promise.' (Ibid.) The FAC again fails to allege any facts to indicate at the time Mantel made the supposed promises, she had no intention of fulfilling them.

To the contrary, Plaintiff alleges 'Mantel could have decided to charge for email exchanges with Plaintiff or charge for the initial consultation that was to be free a later time in the course of representation[.]' (FAC, 51:15-17.) The FAC also alleges when the initial consultation charge was brought to Mantel's attention, she agreed it was a billing error and offered to write it off. (FAC, 17:14-15.) As for the supposed promise not to bill for client emails, the FAC questions whether Mantel was even aware of contrary provisions in the Fee Agreement. (FAC, 31:21-22.) Regarding attendance at the first two hearings, the FAC alleges Brown may have appeared simply because Mantel ultimately lacked time to prepare and attend. (FAC, 15:20- 21.) Such allegations fall short of evidencing an intent to defraud when the promises were made. '[A]ctionable misrepresentation must be one of existing fact' (Cohen v. S & S Construction Co. (1983) 151 Cal.App.3d 941, 946, and '[r]epresentations of opinion, particularly involving matters of value, are ordinarily not actionable representations of fact' (Graham v. Bank of Amer., N.A. (2014) 226 Cal.App.4th 594, 606). That Mantel allegedly promised her fees were fair and reasonable - and Plaintiff's apparent disagreement with that statement - could not serve as the basis for a fraud claim, as a mere statement (and disagreement) of opinion as to value of services. (See McDougall v. Roberts (1919) 43 Cal.App. 553, 556-557 [allegation defendant attorney said 'it was to plaintiff's best interest that plaintiff at once dispose of all his real property' was 'one of a mere opinion so general in its nature as to be insufficient to constitute a misrepresentation as distinguished from a mere opinion'].) As for fees Plaintiff allegedly deemed 'unreasonable,' the FAC does not allege any time billed was not actually incurred or was otherwise falsely claimed (see, e.g., FAC, 52:05-07 ['It hardly seems fair for a client to pay for the unreasonable time claimed by a lawyer for reviewing documents or preparing a motion.']) (Scafidi v. Western Loan & Bldg. Co. (1946) 72 Cal.App.2d 550, 558 ['fraudulent representations in order to be relied upon must be pleaded' and 'when pleaded the allegations of fraud must be clear and unequivocal']), or Defendants' knowledge of any falsity (G.D. Searle & Co. v. Sup. Ct.

(1975) 49 Cal.App.3d 22, 32 [fraud improperly pled absent allegation defendant 'knew its implicit representations ... were false']).

Plaintiff's mere fee dispute does not constitute fraud. '[T]here are two causation elements in a fraud cause of action. First, the plaintiff's actual and justifiable reliance on the defendant's misrepresentation must have caused him to take a detrimental course of action. Second, the detrimental action taken by the plaintiff must have caused his alleged damage.' (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, Calendar No.: Event ID:  TENTATIVE RULINGS

3023014  35 CASE NUMBER: CASE TITLE:  SOOFI VS RABINOVITCH MANTEL [IMAGED]  37-2022-00021936-CU-BC-CTL 1062.) Plaintiff alleges he relied on Mantel's promises during the initial consultation to retain Primus, and as a result – after a 3.5-year representation – he now owes $120,000 in fees and costs. Such allegations fail to sufficiently establish a causal link between entering the representation in 2017 and the outstanding balance in 2021.

The FLARPL allegations are similarly insufficient to support a False Promise cause of action. Pleading reliance with the requisite specificity requires identification of particular acts taken or not taken because of the alleged misrepresentations. (See Glaski v. Bank of America, National Association (2013) 218 Cal.App.4th 1079, 1091.) Here, Plaintiff specifically alleged he believed Mantel when she said that she would withdraw from the representation if Plaintiff did not sign the lien and he believed her withdrawal would have been 'catastrophic' to his case. (FAC, 23: 23-24:02.) Nowhere does the FAC allege that but-for the supposed misrepresentations, he would have refused to sign the FLARPL notwithstanding that it would have caused Mantel's withdrawal from the representation.

Specific damages caused by the supposed reliance must be alleged. (Glaski, supra, pp. 1091- 1092; Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1268-1269 ['the pleading must show a cause and effect relationship between the fraud and the damages sought'].) Plaintiff's allegations acknowledge the FLARPL limits the lien to the amount of fees actually owed and Mantel ultimately had a right to record the FLARPL. While Plaintiff claims Mantel's recording of the FLARPL was premature, the FAC does not allege any specific damages purportedly caused by the timing of recording.

Plaintiff also alleges that in December 2017, Mantel misrepresented that court appointed receivership orders are standard orders whose contents were not subject to change. The claim is insufficient to establish a cause of action for fraud, as the FAC alleges Mantel did not know enough about receivership orders, thus lacking knowledge of falsity and intent to deceive. There are also no factual allegations of purported reliance or specific resulting damages.

The FAC also attempts to insert a Concealment claim into the 'False Promise' third cause of action. In this regard, Plaintiff now alleges: Until May 2021, Defendants had 'concealed' the fact that the FLARPL had been recorded from Plaintiff, 'possibly intentionally' (FAC, 44:17-20); and Mantel 'concealed other neglectful acts of Defendants' by allegedly fabricating false legal advice that receivership orders were standard orders not subject to any changes. (Id., 44:22-24, 45:04-11) The FAC's allegations are insufficient to state a concealment claim.

Regarding the FLARPL, Plaintiff fails to allege that Defendants purportedly concealed the fact of its recording from Plaintiff with the intent to defraud; that Plaintiff would have acted differently in some way had he known of its recording; or that Plaintiff sustained damage caused by the purported non-disclosure of the FLARPL's recording.

Similarly, as for the purported concealment of unspecified 'negligent acts,' the FAC again fails to allege facts in support of the same essential elements of such a claim. (See also Tillman v. Tillman (C.D. Cal. Aug. 17, 2010) No, CV 09-02017, 2010 WL 3271193, at *4 [No authority supports 'the proposition that a claim for legal malpractice may be converted into one for [] fraud because the attorney failed to disclose his own [alleged] malpractice. Such a rule would also convert every garden-variety malpractice claim into one for [] fraud . . . .'].) As to 'Billing Fraud', nearly all allegations included in the Billing Fraud cause of action are expressly included within the 'False Promise-Misrepresentation Concealment' cause of action, which is defective for the reasons discussed above. The only allegations unique to the Billing Fraud claim include: Defendants billed Plaintiff an administrative charge of 3.5%, which 'Mantel never mentioned a word about' and was 'without knowledge and consent of plaintiff.' (FAC, 54:22-25.); Mantel had promised not to charge interest on the balance due amount 'until the true amount of the balance be determined after resolution of the existing billing dispute; and only if Plaintiff could not pay the entire fair amount owed,' but '[s]ince that resolution never happened, Defendants began charging' Plaintiff interest on the balance due. (Id., 54:28-55:04.) Regarding the administrative fee, the Fee Agreement signed by Plaintiff, expressly disclosed this fee (FAC, Ex. 3, at § 7, p. 2), which has been accordingly charged since the first Primus invoice issued to Plaintiff on January 3, 2018 (FAC, Ex. 5, at p. 2), and Plaintiff does not allege that any contrary representation was ever made by any Defendant. The allegations are insufficient to support a fraud claim, as nothing was ever concealed or misrepresented, nor any reliance causing damages. Regarding Mantel's alleged promise as to when interest would be charged on the balance, the Fee Agreement similarly disclosed the finance charge (FAC, Ex. 3, at § 8, p. 3), and Plaintiff again fails to allege any Calendar No.: Event ID:  TENTATIVE RULINGS

3023014  35 CASE NUMBER: CASE TITLE:  SOOFI VS RABINOVITCH MANTEL [IMAGED]  37-2022-00021936-CU-BC-CTL misrepresentation with sufficient specificity and fails to allege facts indicating lack of intention to fulfill the promise when made or establishing detrimental reliance.

The Fraud-Based Causes of Action also appear to be time-barred. 'An action for relief on the ground of fraud or mistake' must be filed within three years of 'the discovery, by the aggrieved party, of the facts constituting the [alleged] fraud or mistake.' (Code Civ. Proc., § 338, subd. (d).) 'A plaintiff is on inquiry notice of its fraud claims when he 'learns, or at least is put on notice, that a representation [is] false.'' (Hamilton Materials, Inc. v. Dow Chemical Corp (9th Cir. 2007) 494 F.3d 1203, 1206, citing Brandon G.

v. Gray (2003) 111 Cal.App.4th 23.) As Plaintiff's fraud claims relate to supposed misrepresentations made in 2017 and 2018 (FAC, 43:23-44:01), and Plaintiff allegedly discovered the billing issues in early 2018 and 'had some doubts about the truthfulness' of the January 2018 legal advice (FAC, 42:21-23), Plaintiff had to file an action for fraud by mid-2020 (accounting for COVID tolling) or include factual allegations of inability to have made earlier discovery despite reasonable diligence. (See Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-808.) Failing to do so, the fraud claims are time barred.

Defamation Plaintiff asserts a defamation claim based on the FLARPL's recording. Defamation requires '(1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.' (J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87, 97 ('J-M').) A defamatory statement is a 'false and unprivileged publication by writing . . . which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.' (Civ. Code, § 45.) An action for defamation is subject to a one-year statute of limitations (CCP, § 340(a)), with the cause of action accruing 'at the time the defamatory statement is 'published'[.]' (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1246-1247.) As Defendants allegedly published a defamatory statement by recording the FLARPL on October 22, 2018, Plaintiff was required to file a defamation action by October 22, 2019.

Having failed to do so, the defamation claim is time barred.

Moreover, ''[t]he defamatory matter must be . . . communicated to some third person who understands its defamatory meaning and application to the plaintiff.'' (Martinelli v. International House USA (2008) 161 Cal.App.4th 1332, 1337.) While Plaintiff alleges a recording of this kind 'would rarely go unnoticed or unpunished in [his] ethnic community' (FAC, 59:05-09), the FAC fails to actually allege that anybody did in fact a) review the recording, and b) understood it to be defamatory. As 'a statement, neither seen nor heard by a third party, cannot cause harm to a party's reputation' (53 C.J.S. (2005) § 87, p. 140), this omission is fatal to Plaintiff's claim.

The truth 'is a complete defense to' defamation. (Washer v. Bank of America National Trust & Savings Assn. (1948) 87 Cal.App.2d 501, 509.) The law 'does not require [the defendant] to justify the truth of every word of the alleged defamatory content, nor must we parse each word written by [the defendant] to determine its truthfulness.' (Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 697.) 'To bar liability, it is sufficient if the substance of the charge be proved true, irrespective of slight inaccuracy in the details... [T]he statement is not considered false unless it would have a different effect on the mind of the reader from that which the pleaded truth would have produced.' (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1262-1263 [quotes omitted].) Plaintiff fails to sufficiently allege any statement in the FLARPL was false. While the FLARPL states Plaintiff is a party to litigation and a lien is granted to secure payment of attorney's fees, and identifies the property to which the lien is to attach, none of that information was allegedly false. The only information it appears Plaintiff alleges was false was the $75,000 'amount of the mortgage/debt[.]' (FAC, 58:23.) However, a ''defamatory meaning must be found, if at all, in a reading of the publication as a whole.' . . . Defamation actions cannot be based on snippets taken out of context.'' (J-M, supra, 247 Cal.App.4th at p. 100.) While the FLARPL does not state a debt of $75,000 was owed, review of the FLARPL with the accompanying Addendum makes clear $75,000 was the maximum amount to be secured by the subject lien, not the outstanding debt.

(See FAC, Exs. 7-8; Exs. 49-50.) Accordingly, the FLARPL does not contain any allegedly false information.

Even if the FLARPL did falsely state Plaintiff owed Defendants $75,000, it must be the 'allegedly false parts of the posts' that expose the plaintiff to 'contempt, ridicule, or other reputational injury.' (Jackson, supra, 10 Cal.App.5th at p. 1262.) As alleged, the subject publication was defamatory in that the recording of the 'FLARPL or any similar kind of these publication would rarely go unnoticed or unpunished in [Plaintiff's] ethnic community.' As the supposedly defamatory content relates to the Calendar No.: Event ID:  TENTATIVE RULINGS

3023014  35 CASE NUMBER: CASE TITLE:  SOOFI VS RABINOVITCH MANTEL [IMAGED]  37-2022-00021936-CU-BC-CTL existence of a debt in general, the FAC concedes Plaintiff owed Defendants $30,000 when the FLARPL was entered into, and no alleged facts indicate the purported defamation related to the difference between the admitted $30,000 balance and the $75,000 identified in the FLARPL, the allegations are insufficient to support a Defamation claim.

Invasion of Privacy As the Invasion of Privacy claim arises from the same allegations as the Defamation claim, and is subject to the same one-year statute of limitations in CCP § 340 (see Johnson v. Harcourt, Brace, Jovanovich, Inc. (1974) 43 Cal.App.3d 880, 895-896), the claim is similarly time-barred. The elements of the tort of public disclosure of private facts are '(1) public disclosure (2) of a private fact (3) that would be offensive and objectionable to the reasonable person and (4) is not of legitimate public concern.' (Jackson, supra, 10 Cal.App.5th at p. 1256.) '[A] crucial ingredient of the applicable invasion of privacy cause of action is a public disclosure of private facts. A matter that is already public or that has previously become part of the public domain is not private.' (Moreno v. Hanford Sentinel, Inc. (2009) 172 Cal.App.4th 1125, 1130.) While the FAC claims that in recording the FLARPL Defendants disclosed private facts relating to Plaintiff's assets and liabilities, such information would not be 'private' as a matter of law, having been regularly disclosed in pleadings served and filed in the underlying family law litigation (including the FLARPL itself). '[A] preliminary determination of 'offensiveness' . . . must be made by the court in discerning the existence of a cause of action for intrusion.' (Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1483.) Courts 'consider the degree of intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder's motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded.' (Id., at pp. 1483- 1484.) The FAC fails to allege facts sufficient to establish even a preliminary determination of 'offensiveness,' as the FLARPL was executed strictly in connection with Defendants' representation of Plaintiff, pursuant to an established statutory procedure specifically enacted to facilitate security for payment of attorney's fees in family law cases, and Plaintiff signed the documentation expressly authorizing its recording (although now apparently objecting to the timing of that recording). A plaintiff must prove 'the publisher invaded his privacy with reckless disregard for the fact that reasonable men would find the invasion highly offensive.' (Briscoe v. Reader's Digest Ass'n (1971) 4 Cal.3d 529, 542-543.) The FAC fails to allege facts suggesting the FLARPL was recorded with the requisite 'reckless disregard.' As a result, the claim fails as alleged.

Breach of Implied Covenant of Good Faith and Fair Dealing 'The implied covenant of good faith and fair dealing rests upon the existence of some specific contractual obligation. . . . 'In essence, the covenant is implied as a supplement to the express contractual covenants, to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenants) frustrates the other party's rights to the benefits of the contract.' ' (Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1031-1032 [internal cites omitted].) 'The scope of conduct prohibited by the implied covenant depends on the purposes and express terms of the contract.' (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 885.) '[T]he implied covenant is limited to assuring compliance with the express terms of the contract, and cannot be extended to create obligations not contemplated in the contract.' (Racine & Laramie, Ltd., supra, 11 Cal.App.4th at p. 1032.) Nor can it 'be read to require defendants to take a particular action that is discretionary under the contract[.]' (Bevis v. Terrace View Partners, LP (2019) 33 Cal.App.5th 230, 256.) To begin, the FAC's breach of the covenant of good faith and fair dealing cause of action fails as a matter of law because 'such a tort exists only in insurance contracts.' (Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 475.) While the breach of implied covenant claim relates to the Fee Agreement, the alleged conduct of Defendants purportedly supporting that claim is either unrelated to any express term of the agreement (e.g., allegations pertaining to the later-obtained FLARPL), or contrary to an express term of the agreement (e.g., provisions agreeing Primus has the right and authority to exercise its discretion in case handling and to employ other attorneys to work on the matter).

Further, 'allegations which assert such a claim must show that the conduct of the defendant, whether or not it also constitutes a breach of a consensual contract term, demonstrates a failure or refusal to discharge contractual responsibilities, prompted not by an honest mistake, bad judgment or negligence Calendar No.: Event ID:  TENTATIVE RULINGS

3023014  35 CASE NUMBER: CASE TITLE:  SOOFI VS RABINOVITCH MANTEL [IMAGED]  37-2022-00021936-CU-BC-CTL but rather by a conscious and deliberate act, which unfairly frustrates the agreed common purposes and disappoints the reasonable expectations of the other party thereby depriving that party of the benefits of the agreement.' (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.) As the cause of action merely restates Plaintiff's alleged criticisms of Defendants' handling of the underlying matter, the FAC fails to sufficiently allege any deliberate conduct by Defendants.

Substantial Evidence Establishes Plaintiffs' Claims Lack Merit No evidence supports Plaintiff's defective Defamation, Invasion of Privacy, and Breach of the Implied Covenant of Good Faith and Fair Dealing causes of action. As to those claims, Plaintiff's discovery responses do not identify any harm for which he is purportedly seeking damages (Ex. 99, at 5:09-24), nor any facts in support of the same (Ex. 103, at 5:21-7:06); do not identify any conduct by Defendants purportedly causing him harm (Ex. 103, at 10:01-24), nor any facts in support of the same (Ex. 103, at 10:24-12:06); do not identify any amount of damages he is purportedly seeking (Ex. 103, at 7:07-8:05), nor any facts in support of the same (Ex. 103, at 8:05-9:02); and fail to include any facts to support a damage claim of any kind, and impliedly concede the absence of any resulting monetary loss from the recording of the FLARPL (Ex. 91, at 19:02-09).

As for the remainder of the FAC, while purporting to assert claims sounding in both legal malpractice and fraud arising out of common allegations, the absence of evidence supporting any claimed wrong or resulting damages establishes Plaintiff has no reasonable probability of prevailing.

Claims Sounding in Legal Malpractice To prevail in a legal malpractice action, '[s]imply showing the attorney erred is not enough.' (Orrick Herrington & Sutcliffe v. Sup. Ct. (2003) 107 Cal.App.4th 1052, 1057 ('Orrick').) 'A determination of the merits of the underlying lawsuit must be made' (Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 934-935 [trial-within-a-trial method applies to both professional negligence and breach of fiduciary duty claims regarding litigation against third parties]), because 'there is no cause of action for legal malpractice without damages proximately caused by the malpractice' (Sisco v. Cosgrover, Michelizzi, Schwabacher, Ward & Bianchi (1996) 51 Cal.App.4th 1302, 1307). Plaintiff must prove causation 'according to the 'but for' test, meaning that the harm or loss would not have occurred without the attorney's malpractice[.]' (Viner v. Sweet (2003) 30 Cal.4th 1232, 1235, 1241.) '[T]he crucial causation inquiry is what would have happened if the defendant attorney had not been negligent.' (Id., at p. 1242.) What's more, 'to make a defendant liable for his wrongful conduct his wrongful act must be' the 'immediate cause' and 'not merely' the 'necessary antecedent[.]' (Kumaraperu v. Feldsted (2015) 237 Cal.App.4th 60, 68.) 'It is not enough for [Plaintiff] to simply claim... that it was possible to obtain a better settlement or a better result at trial. The mere probability that a certain event would have happened will not furnish the foundation for malpractice damages.' (Barnard v. Langer (2003) 109 Cal.App.4th 1453, 1461.) Plaintiff must 'prove what the better outcome would have been.' (Marshak v. Ballesteros (1999) 72 Cal.App.4th 1514, 1518; Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 832 [while the case within a case approach is 'admittedly burdensome and complicated' it 'avoids 'speculative values as a measure of recovery''].) Plaintiff will not prevail on any claim arising from Defendants' handling of the receivership order.

Defendants never provided a 'false legal opinion' to Plaintiff about the receivership order. (Mantel Decl., ¶ 7.) Before Defendants were retained as counsel, the Court had already granted Wife's request that a receiver be appointed 'to collect revenue from [Plaintiff's] business to satisfy spousal support order and attorney fees ordered' (Id., ¶ 7; Ex. 3 [emphasis added]; Ex. 7), ordering that counsel meet and confer regarding 'the exact language to be included in the order and not necessarily limited to the following: investigating income sources of respondent and powers set forth in CCP 564' (Ex. 7).

As was explained to Plaintiff, the portion of the Proposed Order providing the receiver with authority to take possession of funds generated by the business, whether in his business or personal accounts, was standard in such cases, and at that point could not be substantively modified by mere objection to the form of the Proposed Order. (Mantel Decl., ¶ 7; Ex. 34, at PFLG 003532 [2- 13-18 4:45 p.m. Mantel email]; see also Ex. 35, at PFLG 016884 [02-21-18 10:01 a.m. Mantel email].) While Defendants did advise Plaintiff the receivership would apply to business income, Defendants never suggested to Plaintiff the receiver's authority would only apply to his business account. (Mantel Decl., ¶ 3; Ex. 30, at PFLG 018423 [2-5-18 3:23 p.m. Mantel email].) The proposed Order reviewed and discussed with Plaintiff and ultimately signed by the Court expressly provides the receivership would apply to his business and personal accounts to the extent they contained business income. (Mantel Decl., ¶ 4; Ex. 11 [12-14-17 Calendar No.: Event ID:  TENTATIVE RULINGS

3023014  35 CASE NUMBER: CASE TITLE:  SOOFI VS RABINOVITCH MANTEL [IMAGED]  37-2022-00021936-CU-BC-CTL Brown email with proposed order], Ex. 13, at PFLG 037039 [12-14-17 Mantel billing entry]; Ex. 12 [signed order appointing receiver].) Plaintiff later objected to the receiver's seizure of $9,515.01 from his personal account when it was discovered that Plaintiff had transferred large amounts from his business account to his personal account, but the receiver's authority over business related funds had been litigated and ruled upon prior to Defendants' representation of Plaintiff. (Mantel Decl., ¶ 5; Ex. 24, at PFLG 003788 [02-01- 2018 3:26 p.m. Receiver email], Ex. 36, at ¶¶ 7, 17(a); Ex. 85, 265:11-18.) While Plaintiff now claims Defendants should have objected to the Proposed Order language providing the Receiver with authority over his personal accounts and residence, there is no evidence that Plaintiff would have obtained any better result but-for that supposed failure. Plaintiff's discovery responses fail to include any facts to support a claim that Wife or the court would have agreed to limit the court-appointed receiver's authority to his business accounts if Defendants had objected to the form of the Proposed Receivership Order (Chase Decl., ¶ 3; see Ex. 101, No. 17.1, at 21:06-22), instead claiming an inability to admit or deny that he has no such facts (Ex. 102, Nos. 20-21, at 8:07- 9:08), and conceding that it is not possible to speculate whether such a limitation would have been agreed to or ordered (Ex. 98, Nos. 20-21, at 7:20-8:11). Such speculation cannot support a legal malpractice claim. (See Thompson v. Halvonik (1995) 36 Cal.App.4th 657, 663 [claim that 'but for' attorney's negligence case would have settled sooner or on more favorable terms rejected as speculative]; Orrick, supra, 107 Cal.App.4th at p. 1058 [summary judgment proper where '[plaintiff] produced no evidence showing his ex-wife would have settled for less than she did']; Marshak, supra, 72 Cal.App.4th at pp. 1518-1519 [plaintiff failed to 'prove that his ex-wife would have settled for less than she did'].) Continuance of January 19, 2018 Evidentiary Hearing: When Defendants were retained just one-month before the January 19, 2018 hearing, the previously ordered Special Master had not yet been retained (much less any evaluation or report completed), nor had any discovery been obtained from Wife. (Mantel Decl., ¶ 15.) While the Court in issuing interim support orders pending the evidentiary hearing had 'reserve[d] jurisdiction regarding retroactivity for adjustment purposes,' the exercise of any such retroactive adjustment was to specifically occur 'once the special master report is received.' (Mantel Decl., ¶ 15; Ex. 2, p. 3.) A continuance of the evidentiary hearing was thus required to obtain outstanding necessary information, including the Court-ordered Special Master evaluation and report of Plaintiff's income available for support, as well as written discovery and deposition of Wife. (Mantel Decl., ¶ 15; Ex. 14.) Plaintiff was aware of such information, and it is undisputed that Plaintiff agreed to the continuance of the January 19, 2018 evidentiary hearing. (Chase Decl., ¶ 5; Ex. 102, No. 6, at 4:26- 5:09; Mantel Decl., ¶ 15; Ex. 14, at PFLG 041374; Ex. 15, at PFLG 001513 [01-08-18 11:17 p.m. Soofi email]; see also Ex. 9, at PFLG 003907 [12-06-17 11:34 a.m. Soofi email]; Ex. 17, at PFLG 000644 [01-16-18 3:14 p.m. Brown email]; Ex. 18, at PFLG 002898 [01-16-18 3:56 p.m. Soofi email.) There is no evidence that Plaintiff would have obtained any better result but-for the continuance of the evidentiary hearing. The only matter set for evidentiary hearing on January 19, 2018, was Wife's RFO for spousal support, property control as to the parties' Mercedes, and to appoint a special master to determine Plaintiff's income available for support and to appraise the value of Plaintiff's businesses.

(Mantel Decl., ¶ 14; Exs. 1, 2.) Accordingly, even if the January 19, 2018 hearing had gone forward, it would not have addressed the parties' numerous other issues or concluded the divorce, as Plaintiff now claims. (Mantel Decl., ¶ 14; see Ex. 90 [2021 judgment of dissolution, addressing support, property division, reimbursements, attorney's fees, and sanctions].) Plaintiff's discovery responses fail to include any facts to support a claim that he would have obtained a more favorable outcome if Defendants had not requested a continuance of the January 19, 2018 evidentiary hearing (Chase Decl., ¶ 6; see Ex. 101, No. 17.1, at 21:23-22:01), instead claiming an inability to admit or deny that he has no such facts (Ex.

102, No. 22, at 9:08-24), and conceding that it is not possible to predict or present facts showing what the outcome would have been (Ex. 98, No. 22, at 8:12-22). Here too, such speculation cannot support a legal malpractice claim. (See Thompson, supra, 36 Cal.App.4th at p. 663 [claim that 'but for' attorney's negligence case would have settled sooner or on more favorable terms rejected as speculative]; Orrick, supra, 107 Cal.App.4th at p. 1058 [summary judgment proper where '[plaintiff] produced no evidence showing his ex-wife would have settled for less than she did']; Marshak, supra, 72 Cal.App.4th at pp.

1518- 1519 [plaintiff failed to 'prove that his ex-wife would have settled for less than she did'].) Claims Sounding in Fraud Plaintiff lacks a substantial probability of establishing any false promise by Defendants regarding the Calendar No.: Event ID:  TENTATIVE RULINGS

3023014  35 CASE NUMBER: CASE TITLE:  SOOFI VS RABINOVITCH MANTEL [IMAGED]  37-2022-00021936-CU-BC-CTL FLARPL. Based on what has been presented to the Court, Defendants attempted in good faith to accommodate Plaintiff's ongoing request and desire that Primus Family Law Group continue to represent him notwithstanding his persistent failure to stay current on the fees and costs owed to the firm. (Mantel Decl., ¶ 16.) Defendants had communications with Plaintiff regarding the fees and costs owed to Primus Family Law Group and limitations on the firm's ability to continue representing him absent a lump-sum payment, an agreed-upon payment plan, and security for the outstanding balance.

(Ibid.) To that end, the FLARPL was prepared and signed for the specific purpose of recording it against Plaintiff's property in order to provide Defendants with a form of security for the outstanding balance.

(Mantel Decl., ¶ 21.) Plaintiff admits to signing the FLARPL and the Addendum thereto on September 21, 2018. (Ex. 98, Nos.

14-15, at 6:16-26.) By that time, Mantel had informed Plaintiff that Defendants would not continue to represent him without security for the outstanding balance. (Mantel Decl., ¶ 21.) There is no evidence Plaintiff ever said that he would not sign the FLARPL if it was going to be immediately recorded. (Ibid.) Defendants did not represent to Plaintiff that the FLARPL would not be recorded until the representation concluded and all purported billing disputes resolved. (Mantel Decl., ¶ 18.) There is no documentation whatsoever evidencing that Defendants had agreed to delay the recording of the FLARPL, reflecting any discussion of when the FLARPL would be recorded, or otherwise suggesting that the FLARPL had not yet been recorded. (Id., ¶ 20.) On the other hand, pleadings and emails exchanged between Defendants and Plaintiff acknowledge Defendants held a lien secured against Plaintiff's real property. (Mantel Decl., ¶ 18; Ex. 73, at PFLG 000218 [12-13-19 2:17 p.m. Soofi email]; Ex. 46, at PFLG 006269 [10-04-18 1:09 p.m. Soofi email]; Ex. 47, at PFLG 019063 [10-05-18 10:09 a.m.

Mantel email]; Ex. 48, at PFLG 016029 [10-11-18 9:24 a.m. Mantel email]; Ex. 51, at PFLG 006379 [10-23-18 9:03 a.m. Soofi email]; Ex. 52, at PFLG 015539 [11-05-18 11:56 a.m. Mantel]; Ex. 70, at PFLG 018367 [11-18-19 9:57 a.m. Mantel email]; Ex. 81, ¶ 17; Ex. 83, at 16:14-18; Ex. 79, at PFLG 010694 [11-27-20 8:16 a.m. Mantel email; Ex. 82, at PFLG 011114 [03-12-21 2:34 p.m. Mantel email; see also Ex. 86, at 8:19-20.) Plaintiff's testimony in the underlying trial similarly acknowledged the $75,000 FLARPL as a reduction of his total equity in the subject property. (Mantel Decl., ¶ 19; Ex. 84, at 249:17-250:01.) Plaintiff's discovery responses contend 'the language of added addendum to the FLARP[L] is explicit that certain verbal agreement had taken place to finalize and substantiate the consummation of that FLARP[L] which also support the deduction from that no permission had been given from Plaintiff to Defendants for recording of the FLARP[L].' (Ex. 103, No. 2, at 6:20-23.) However, the FLARPL Addendum does not contain any language to suggest the recording had not been consented to. (Chase Decl., ¶ 9; see Ex. 50.) To the contrary, Plaintiff contemporaneously executed a document entitled Notice of Intent to Record, which again makes no mention of delayed recording, instead expressly referencing Family Code section 2033(b) which merely provides for a 15-day delay prior to recording. (Ex. 45.) (Fam. Code, § 2033, subd.

(b) ['Notice of a family law attorney's real property lien shall be served either personally or on the other party's attorney of record at least 15 days before the encumbrance is recorded.'].) The Addendum to the FLARPL was prepared to resolved Plaintiff's concerns pertaining to clarification of the lien amount by memorializing the parties' agreement that the ultimate amount of the lien would be limited to the amount of fees and costs actually owed. (Mantel Decl., ¶ 22; Ex. 50, at PFLG 048392 ['Should Mr. Soofi's fees and costs amount to less than $75,000, only the actual amount owing shall be subject to the Lien.'].) The FLARPL and the Addendum together memorialize the entirety of the parties' agreement regarding the FLARPL. (Mantel Decl., ¶ 22.) If any agreement had been reached regarding the timing of the FLARPL's recording, Defendants would have insisted that it similarly be memorialized in the Addendum. (Ibid.) The evidence also shows Plaintiff will not succeed in establishing reliance. While Plaintiff now claims he would not have signed the FLARPL if Defendants had told him the FLARPL would be immediately recorded (Ex. 98, No. 17, at 7:04-10), Plaintiff's discovery responses fail to include any facts to support his contention (Chase Decl., ¶ 7; see Ex. 97, No. 17.1, at18:25-19:02 [conclusory statements re why Plaintiff insisted upon FLARPL Addendum]). Instead, Plaintiff's discovery responses state he had been left with no other alternative than to sign the lien. (Ex. 98, No. 14, at 6:16- 22.) Plaintiff alleges he believed Mantel when she told him that she would withdraw from Plaintiff's case if he did not sign the lien (FAC, 19:24-26, 20:24, 23:23-25; Ex. 103, No. 23, at 27:05-08), and he believed that, as the third attorney to represent him, Mantel's withdrawal would have been 'catastrophic' to his case (FAC, Calendar No.: Event ID:  TENTATIVE RULINGS

3023014  35 CASE NUMBER: CASE TITLE:  SOOFI VS RABINOVITCH MANTEL [IMAGED]  37-2022-00021936-CU-BC-CTL 23:27-28). Plaintiff's prior filings concede he would have declined to sign the FLARPL only if the refusal to do so 'would not have caused Mantel's withdrawal[.]' (ROA No. 24, 12:26-28.) Defendants would not have agreed to continue representing Plaintiff without recording the FLARPL. (Mantel Decl., ¶ 21.) Additionally, while Plaintiff denies that he did not incur any damage caused by the recording of the FLARPL (Ex. 98, No. 18, at 7:10-15), his discovery responses fail to include any facts to support a damage claim of any kind and impliedly concede the absence of any resulting monetary loss (Chase Decl., ¶ 10; see Ex. 97, No. 17.1, at 19:02-09; Ex. 103, No. 2, at 5:21-23, 6:17-23).

Plaintiff will not prevail in establishing any false promise by Defendants regarding their billing style and practice. Defendants never made any false statement to Plaintiff regarding their legal practice, billing style, or professional experience. (Mantel Decl., ¶ 26.) Plaintiff concedes there are no documents evidencing any of the verbal promises or agreements that Plaintiff now claims were purportedly made at the time Defendants were retained. (Chase Decl., ¶ 13; Ex. 103, No. 2, at 6:09- 11.) Plaintiff's discovery responses omit any facts to support his claim that Defendants' billing practices purportedly failed to comply with any supposed promise made on December 5, 2017. (Chase Decl., ¶ 19; see Ex. 103, No. 2, at 5:21-23, 6:07-17, 7:01-03.) Defendants never represented to Plaintiff that he would not be billed for attorney-client email exchanges. (Mantel Decl., ¶ 23; Ex. 88, at PFLG 010356 [06-08-21 4:58 p.m.

Mantel email.) The Fee Agreement expressly provides that Plaintiff would be billed for attorney-client emails. (Mantel Decl., ¶ 23; Ex. 8, § 2) In addition, Plaintiff sent numerous emails acknowledging that he would be billed for attorney-client emails. (Mantel Decl., ¶ 23; e.g., Ex. 16, at PFLG 001248 [01-10- 18 12:22 p.m. Soofi email; Ex. 40, at PFLG 001440 [08-15-18 11:14 a.m. Soofi email]; Ex. 64, at PFLG 011285 [08-15-19 4:33 p.m. Soofi email]; Ex. 42, at PFLG 006845 [09-26-18 5:29 p.m. Soofi email]; Ex. 43, at PFLG 021862 [09-28-18 10:51 a.m. Mantel email]; Ex. 44, at PFLG 006891 [09- 28-18 11:56 a.m. Soofi email]; Ex. 65, at PFLG 004124 [09-20-19 9:47 a.m. Soofi email; Ex. 72, at PFLG 004928 [12-11-19 2:54 p.m.

Soofi email]; Ex. 69, at PFLG 003670 [11-15-19 5:59 p.m. Soofi email]; Ex. 41, at PFLG 002750 [09-20-18 4:22 p.m. Soofi email]; Ex. 37, at PFLG 019920 [03-22-18 1:12 p.m. Soofi email].) Further, Plaintiff had been provided with monthly invoices from Primus Family Law Group which included billing for time incurred exchanging attorney-client email since January 2018, but failed to object to such charges as contrary to any supposed prior representation until in or about October 2018. (Mantel Decl., ¶ 24; Ex. 98, Nos. 12-13, at 5:27-6:16; see Ex. 13, at PFLG 037038; Ex. 12-13-19 2:17 p.m. Soofi email]; Ex. 87, at PFLG 023631 [06-07-21 9:11 a.m. Soofi email; Chase Decl., ¶ 17.) While pursuant to the Fee Agreement signed by Plaintiff his purported objection to the subject billing was waived as untimely raised (Ex. 8, § 8), the time incurred for attorney-client email was appropriately billed to Plaintiff in accordance with the parties' agreement in any event. (Mantel Decl., ¶ 25.) There is no evidence that Plaintiff's outstanding balance at the conclusion of the representation was purportedly caused by his reasonable reliance on any supposed misrepresentation as to Defendants' billing style and practices. While Plaintiff claims he brought his billing objections to Mantel's attention 'within weeks' after the representation began in December 2017, Plaintiff admits he then requested Defendants continue to represent him after he failed to timely pay the attorney's fees and costs incurred (Chase Decl., ¶ 14; Ex. 98, No 8, at 5:05-09; Ex. 102, No. 9, at 5:24-6:01); indeed, the monthly Payment Plan and FLARPL were entered into to persuade Defendants to continue the representation. (See Mantel Decl., ¶¶ 16, 21; Exs. 22, 49-50.) Plaintiff's discovery responses provide that Defendants wished to withdraw as counsel by the second month of the representation and repeatedly thereafter, and that each time the issue was temporarily resolved by a mutual decision to continue the representation following a payment by Plaintiff. (Chase Decl., ¶ 15; Ex. 97, No. 17.1, at 17:21-24.) Plaintiff cannot establish reasonable reliance on any alleged misrepresentation during the initial consultation where he knowingly chose to continue the representation for more than three years after he became aware of the purported billing issues.

Plaintiff will not prevail on any billing fraud claim against Defendants. It is undisputed that on December 6, 2017, Plaintiff was provided with a complete copy of Primus' Fee Agreement which he initialed and signed in full. (Mantel Decl., ¶ 27.) In signing the Fee Agreement, Plaintiff specifically warranted that he had read and understood the contract terms. (Ex. 8, § 24.) Plaintiff admits that at no time before signing the Fee Agreement did he tell Defendants that he allegedly did not read the agreement or did not understand any of its terms. (Chase Decl., ¶ 12; Ex. 102, Nos. 4-5, at 4:05-26.) While Plaintiff now claims he did not read the Fee Agreement, 'the general rule is that a party is bound by provisions in an Calendar No.: Event ID:  TENTATIVE RULINGS

3023014  35 CASE NUMBER: CASE TITLE:  SOOFI VS RABINOVITCH MANTEL [IMAGED]  37-2022-00021936-CU-BC-CTL agreement which he signs, even though he has not read them and signs unaware of their existence.' (N.A.M.E.S. v. Singer (1979) 90 Cal.App.3d 653, 656; accord Larsen v. Johannes (1970) 7 Cal.App.3d 491, 501 ['[W]hen a person with the capacity of reading and understanding an instrument signs it, he is, in the absence of fraud and imposition, bound by its contents, and is estopped from saying that its explicit provisions are contrary to his intentions or understanding.' ].) Further, Mantel personally observed Plaintiff read each page of the Fee Agreement, initialing where required and asking questions as he went, and then signing in full at the end of the Agreement after stating that he understood its terms. (Mantel Decl., ¶ 27.) There is insufficient evidence presented that during Defendants' representation of Plaintiff, the amounts billed to him for the fees and costs incurred on his behalf were inaccurate or unreasonable. (Mantel Decl., ¶ 28.) Plaintiff's discovery responses omit any facts to support his claim to the contrary. (Chase Decl., ¶ 20; see Ex. 103, No. 2, at 5:21-7:07.) Instead, Plaintiff's discovery responses highlight an apparent disconnect between the legal definition of fraud and what Plaintiff 'considers' to be fraud. For instance, Plaintiff describes billing entries as 'false' or 'fabricates' where Defendants allegedly agreed to adjust certain billing entries but thereafter purportedly failed to do so. (Chase Decl., ¶ 21; Ex. 103, No. 7, at 12:11-14.) Similarly, Plaintiff's responses incorporate his billing 'dispute analysis,' which does not identify any billing entries that are purportedly fabricated, inflated, or otherwise fraudulent. (Chase Decl., ¶ 21; see Ex. 100.) In response to discovery requests asking that Plaintiff identify those billing entries he contends were fabricated, inflated, or fraudulent, Plaintiff fails to do so, instead claiming those entries identified as 'excessive' in his billing analysis are those fees that Plaintiff believes not to be reasonable, ordinary, or acceptable. (Chase Decl., ¶ 21; Ex. 103, Nos. 17, 19, 21, at 22:10-13, 24:01- 04, 25:18-21; see Ex. 100.) Plaintiff's responses then identify as supporting facts 'five categories of billing disputes,' none of which include time that was fabricated, inflated, or fraudulent. (Chase Decl., ¶ 21; see Ex. 99, No. 18, at 15:11-27.) Plaintiff's pleadings similarly illustrate his fee objections do not sound in fraud. (E.g., Compl., 39:10-12 ['It hardly seems fair for a client to pay for the excessive time, however honestly, that takes a lawyer to review document or prepare a motion.'] Further, 'a plaintiff is required, as a general rule, to have sustained an actual detriment from the particular injury of which he complains before he can be compensated for its infliction.' (Valdez v. Taylor Auto. Co. (1954) 129 Cal.App.2d 810, 821.) On the supposed billing fraud cause of action, Plaintiff claims damages of $120,000 for the allegedly 'excess billed amount' equal to his outstanding balance.

(Ex. 103 Supp. SROG Resp., No. 3, at 7:06-18, 7:26-28.) On each of the remaining causes of action, Plaintiff purports to claim damages of $250,000 for the cost of litigating the divorce and $1,000,000 for the loss of his corporation USA Pharma, Inc. (Ex. 103 Supp. SROG Resp., No. 3, at 7:06-26.) Although Plaintiff denies that no conduct by Defendants caused him harm or caused him to incur damages, his discovery responses omit any facts to support the denials. (Chase Decl., ¶ 25; Ex. 98, Nos. 25, 26, at 9:03-15; Ex. 97, No. 17, at 20:23-21:08; Ex. 103, No. 6, at 10:01-24.) Plaintiff's discovery responses omit any facts to support his claim of purportedly incurred harm resulting from Defendants' supposed 'billing fraud' (Chase Decl., ¶ 18; see Ex. 103, No. 2, at 5:21-23, 6:07-17, 7:01-03)11, or from Defendants' alleged misrepresentations or false promises about their billing style and practice (Chase Decl., ¶ 16; see Ex. 103, No. 2, at 5:21-23, 6:07-17, 7:01-03). Plaintiff's discovery responses also omit any facts to support his claim that any conduct by Defendants purportedly 'led to the loss of a meritorious divorce case' causing him to incur damages for 'the cost of the [sic] litigating the divorce in amount of $250K.' (Chase Decl., ¶ 23; See Ex. 103, Nos. 2-3, at 5:21-8:05; id., No. 6, 10:01-24.) Plaintiff's damage claim as to amounts paid to Primus Family Law Group fails as a matter of law because fees paid to an attorney are not cognizable tort damages, and 'were the law to be otherwise, tort damages would exist in every instance an attorney collected a fee.' (Orrick, supra, at p. 1060.) The Court of Appeal has explained: [W]e think it is important to note that if [plaintiff] were correct, . . . the case-within-a-case method, would be eviscerated. . . . [T]he idea that the fees paid to the [allegedly] negligent attorney constitute tort damages, if credited, would lead to an absurd result. Again there would be no need to prove a better result in the underlying litigation, because damages would exist based on the mere acceptance of a fee for the services provided. (Orrick, supra, at p. 1059.) Here, as in every other claim sounding in legal malpractice, to establish causation and damages Plaintiff must 'prove what the better outcome would have been' in the absence of alleged negligence. (Marshak, supra, 72 Cal.App.4th at p. 1518.) Mere payment of fees to the allegedly negligent attorney is insufficient to Calendar No.: Event ID:  TENTATIVE RULINGS

3023014  35 CASE NUMBER: CASE TITLE:  SOOFI VS RABINOVITCH MANTEL [IMAGED]  37-2022-00021936-CU-BC-CTL establish causation or damages. As it relates to the purported loss of the corporation, Plaintiff contends that USA Pharma Inc. was 'a profitable vaccine distribution company . . . which was shut down, in all practical terms, in early 2018 by court receivership . . . directly due to neglect of the Defendants.' (Ex. 97 FROG Resp., No. 2.6, at 4:28-5:09.) However, the Court in the underlying action had appointed a receiver over the business prior to the start of Primus' representation. Accordingly, while Plaintiff claimed the receiver's garnishment of his business bank account would 'destroy the business' by leaving it without a reliable bank account (Mantel Decl., ¶ 5; Ex. 27, at PFLG 003722 [2-2-18 4:50 p.m. Soofi email]), Plaintiff does not, and could not, contend that result was caused by any conduct of Defendants.

Instead, Plaintiff challenges Defendants' lack of objection to the portion of the Proposed Order providing the receiver with the ability to garnish his personal bank account to the extent it contained funds relating to the business. The receiver garnished $9,515.01 from Plaintiff's personal account based on 'evidence these funds came from Pharma USA,' and placed a hold on the account for approximately one week.

(Mantel Decl., ¶ 9; Ex. 20; Ex. 23, at PFLG 007236 [01-31-18 8:09 p.m. Soofi email]; Ex. 26, at PFLG 003730 [02-02-18 3:42 p.m. Singer email].) Soofi objected to the garnishment, taking the position the funds were 'borrowed money to last [him] through [t]he month of Feb' (Mantel Decl., ¶ 9; Ex. 23, at PFLG 007236 [01-31-18 8:09 p.m. Soofi email]), and requested the receiver release the hold so he could 'live and pay [his] utility and mortgage payment[.]' (Mantel Decl., ¶ 9; Ex. 24, at PFLG 003788 [02-01-18 12:30 p.m. Soofi email]; see also Ex. 28, at PFLG 007241 [02-04-18 7:20 p.m. Soofi email]; Ex. 31, at PFLG 005400 [02-06-18 4:33 p.m. Soofi email].) As the claimed concerns and consequences of the garnishment of funds and brief hold on Plaintiff's personal account were entirely personal and separate from Plaintiff's business operations, Plaintiff cannot establish that Defendants' lack of objection to the portion of the Proposed Order addressing his personal bank account caused the ultimate shutdown of USA Pharma.

Furthermore, Plaintiff repeatedly claimed that since 2014, he was no longer earning viable income from USA Pharma. (Mantel Decl., ¶ 10; Ex. 32, at ¶¶ 4, 7-8; Ex. 24, at PFLG 003788 [02-01- 18 12:30 p.m.

Soofi email]; Ex. 25, at PFLG 003765 [02-01-18 7:52 p.m. Soofi email]; Ex. 26, at PFLG 003730 [02-02-18 3:42 p.m. Singer email]; Ex. 21, at PFLG 001045 [01-25-18 2:48 p.m. Soofi email]; Ex. 27, at PFLG 003722 [02-02-18 4:50 p.m. Soofi email]; Ex. 30, at PFLG 018423 [2-5-18 3:23 p.m. Mantel email]; Ex. 85, at 311:07-28, 312:14-313:15, 314:19-315:07.) In addition to USA Pharma's lack of profitability, the corporation's failure to pay for vaccines purchased in early 2017 ultimately led to entry of a default judgment against it in the amount of $134,994.56 (Mantel Decl., ¶ 11; Ex. 59), and the corporation was then dissolved in 2019. (Ex. 68; Ex. 83, at PFLG 066810, ln 22- 066811, ln 15; Ex. 85, at 330:16-28, 331:07-12, 331:13-332:03.) Accordingly, even if the receiver's actions as to Plaintiff's personal bank account had anything to do with his business, Plaintiff could not in any event establish that to be the cause of the purported loss of USA Pharma.

What's more, Plaintiff cannot establish any harm caused by the dissolution of USA Pharma, given that Plaintiff has carried on the wholesale vaccines business operations under the fictitious business name of RSA Pharma since 2018. (Mantel Decl., ¶ 12; Ex. 33; Ex. 84, at 205:21-206:14; Ex. 103, No. 5, at 9:14-15; see also Ex. 95.) Amount of Security Ordered '[I]f, after hearing the evidence upon the motion, the court determines that the plaintiff is a vexatious litigant and that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant, the court shall order the plaintiff to furnish, for the benefit of the moving defendant, security in such amount and within such time as the court shall fix.' (Code Civ. Proc., § 391.3, subd. (a).) ''Security' means an undertaking to assure payment, to the party for whose benefit the undertaking is required to be furnished, of the party's reasonable expenses, including attorney's fees and not limited to taxable costs, incurred in or in connection with a litigation instituted, caused to be instituted, or maintained or caused to be maintained by a vexatious litigant.' (Code Civ. Proc., § 391, subd. (c).) In fixing the amount of ordered security, 'the Legislature intended section 391, subdivision (c) to be construed expansively[.]' (Singh v. Lipworth (2005) 132 Cal.App.4th 40, 45 [noting 'Nontaxable costs . . . would include attorney fees not authorized by contract, statute, or law.'].) In support of the Motion, Defendants present evidence illustrating the basis for the requested security of $500,000, given the nature of this litigation to date and the reasonably anticipated fees and costs through the conclusion of trial. Plaintiff makes no argument challenging the rates involved, the hours Calendar No.: Event ID:  TENTATIVE RULINGS

3023014  35 CASE NUMBER: CASE TITLE:  SOOFI VS RABINOVITCH MANTEL [IMAGED]  37-2022-00021936-CU-BC-CTL incurred and estimated, or the total amount of the security requested.

As elaborated and supported in the Declaration of Mallory Chase, the Court orders Plaintiff to furnish security in the amount of $500,000.00 (Chase Decl., ¶¶ 26-30), within ten (10) calendar days of this Court's ruling.

Calendar No.: Event ID:  TENTATIVE RULINGS

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