Judge: Maurice A. Leiter, Case: 19STCV36838, Date: 2022-11-21 Tentative Ruling

Case Number: 19STCV36838    Hearing Date: November 21, 2022    Dept: 54

Hearing Date: November 21, 2022

Department 54, Judge Maurice A. Leiter

Motion for Summary Judgment

Moving Party: Defendant Larson LLP

Responding Party: Plaintiff Gianna Breliant

T/R:     DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IS DENIED.

            DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

            On August 23, 2022, Plaintiff Gianna Breliant filed the operative third amended complaint against Defendants Arent Fox LLP and Larson O’Brien LLP, asserting causes of action for (1) breach of fiduciary duty; (2) legal malpractice; and (3) violation of Bus. & Prof. Code § 17200. This action arises out of Defendants’ representation of Plaintiff in litigation relating to the alleged wrongful death of her daughter by heroin overdose.

Plaintiff alleges Defendant negligently failed to designate or prepare the liability expert in the underlying action to testify about money given to the decedent by her sober companion days before her death. Plaintiff asserts that the expert should have testified that giving an addict money would result in the addict’s buying drugs. Plaintiff complains that the sober companion’s decision to give decedent money was a substantial factor in decedent’s death. Plaintiff also alleges Defendant engaged in wrongful billing practices.

REQUEST FOR JUDICIAL NOTICE

            Defendant’s requests for judicial notice are GRANTED as to the existence of the documents, but not as to the truth of the matters asserted in them.

EVIDENCE OBJECTIONS

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.” (CCP § 437c(q).) Defendant’s objections to the declaration of Michael McEwen are OVERRULED.

ANALYSIS

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Trial judges are required “to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2).) Once the defendant has met that burden, “the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Id.)  To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

A. Breach of Fiduciary Duty

The elements for a breach of fiduciary duty cause of action are “the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach.” (Thomson v. Canyon (2011) 198 Cal.App.4th 594, 604.)  

Defendant argues that the claim for breach of fiduciary duty fails because Plaintiff cannot establish damages, and the claim cannot be based on ethical violations alone. Plaintiff alleges Defendant wrongfully charged and handled Plaintiff’s $150,000.00 retainer, overbilled, failed to advise her that most wrongful death actions are done on a contingent basis, and failed to enter into a written fee agreement.

            Defendant presents an unsigned copy of the parties’ purported initial engagement letter dated January 14, 2016, which states: “[t]o secure our availability for this representation and our availability to represent you on other matters for a period of one year from the date of this letter, you agree to pay an initial nonrefundable $150,000 true retainer. You also agree to pay any balance due upon receipt of our statements each month. You further agree to provide such additional retainer amounts as the matter may require upon our timely request.” (UMF ¶ 8, Def. Exh. 6.)

Defendant argues that the parties intended for the retainer to be an “evergreen” retainer from which Defendant withdraws as fees are incurred. (UMF ¶ 15.) Plaintiff later signed an “addendum” to the engagement letter in which Defendant released Plaintiff from the obligation to maintain a true retainer unless Plaintiff failed to pay the Defendant’s bills within 30 days of receipt. (Def. Exh. 6.) Defendant represents it applied the deposit to Plaintiff’s past due balance “at various times.” (UMF ¶ 16.)

In opposition, Plaintiff asserts that Defendant treated the retainer as a true retainer and did not credit Plaintiff for the deposit until Plaintiff complained in 2017. (Opp. UMF ¶ 16.) Plaintiff states Defendant failed to provide a proper accounting of the deposit, including whether it had been placed in a trust account. (Id.) Plaintiff also disputes signing the engagement letter. (Opp. UMF ¶ 8.) This is sufficient to create a triable issue of fact as to Plaintiff’s claim for breach of fiduciary duty.

Defendant’s argument that Plaintiff can never receive disgorgement of fees for overbilling is unpersuasive. Courts have held that “ ‘[a] lawyer engaging in clear and serious violation of duty to a client may be required to forfeit some or all of the lawyer's compensation for the matter.’ ” (Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., Inc. (2018) 6 Cal.5th 59, 89, quoting the Restatement Third of Law Governing Lawyers.)

            Plaintiff has established a triable issue of fact as to the first cause of action for breach of fiduciary duty. Defendant’s motion for summary judgment is DENIED. Defendant does not move for summary adjudication. The Court need not address the remaining arguments.