Judge: Mel Red Recana, Case: 21STCV26628, Date: 2024-03-29 Tentative Ruling
Case Number: 21STCV26628 Hearing Date: April 11, 2024 Dept: 45
Hearing date: April 11, 2024
Moving Party: Defendant Philip Michels, et al.
Responding Party: Plaintiff Stanley Orwasher
Motion for Summary Judgment or, in the alternative, Summary Adjudication
The Court considered the moving papers, opposition, and reply.
The motion is DENIED.
Background
On October 26, 2022, Plaintiffs Stanley Orwasher, individually and the Estate of Phyllis Orwasher, by and through its Successor in Interest, Stanley Orwasher (“Plaintiff”) filed the operative Second Amended Complaint (“SAC”) against Defendants Philip Michels, a Professional Law Corporation dba Law Offices of Michels & Lew, Philip Michels, an individual, Jinheung N. Lew, an individual (collectively, “Michels & Lew”), and DOES 1-10, inclusive for: (1) Breach of Fiduciary Duty; (2) Fraud; (3) Breach of the Implied Covenant of Good Faith and Fair Dealing; and (4) Professional Negligence.
On December 28, 2023, Michels & Lew filed this instant Motion for Summary Judgment or, in the alternative, Summary Adjudication. On March 28, 2024, Plaintiff filed an opposition. On April 8, 2024, Michels & Law filed a reply.
Evidentiary Rulings
In support of the motion, Michels & Lew advance a Retainer Agreement attached to Lew’s declaration as Exhibit A; and Separate Statement. Plaintiff object to the Retainer Agreement in its entirety and portions of the Separate Statement. The Court rules on Plaintiff’s objections as follows:
OVERRULED: 1, 3
SUSTAINED: 2
In support of the opposition, Plaintiff advances his own declaration and the declarations of Robert F. Vaage and Robert K. Sall. Michels & Lew object to portions of these declarations. The Court rules Michels & Lew’s objections as follows:
OVERRULED: 13-15
SUSTAINED: 1-12
Judicial Notice
Defendants Philip Michels, a Professional Law Corporation dba Law Offices of Michels & Lew, Philip Michels, an individual, Jinheung N. Lew, an individual, request the Court take judicial notice of (1) Complaint filed May 30, 2018 in the action Phyllis Orwasher, et al. v. Cedars Sinai Medical Center, et al., Los Angeles Superior Court Case No. BC708234 attached hereto as Exhibit B; and (2) County of Los Angeles Department of Public Health Certificate of Death of Phyllis Orwasher, issued August 7, 2020, reflecting that Mrs. Orwasher died on August 5, 2020 attached hereto as Exhibit D.
The request for judicial notice is GRANTED pursuant to Evidence Code Sections 452, subdivision (d) and 453.
Statement of Undisputed Facts
On August 2, 2017, Mrs. Phyllis Orwasher (“Mrs. Orwasher”) was admitted to the Emergency Department at Cedars-Sinai Medical Center and subsequently, to the Intensive Care Unit of Cedars. (UMF No. 1.) Mrs. Orwasher underwent an emergency esophagogastroduodenoscopy (“EGD”) and suffered a hypoxic brain injury. (UMF Nos. 2-3.)
On May 30, 2018, Michels & Lew followed a complaint, Los Angeles Superior Court Case No. BC708234 (the “Underlying Action” of “U/A”) on behalf of Dr. Stanley Orwasher and Mrs. Orwasher against Cedars-Sinai Medical Center, Dr. Michelle Pelot, and General Anesthesia Specialists Partnership Medical Group (“GASP”). (UMF No. 5.) The complaint in the U/A alleged medical malpractice and loss of consortium. (UMF No. 6.) During the U/A, Dr. Orwasher indicated to Michels & Lew that he expected Mrs. Orwasher to live into her 80s, for example, at least 6-7 more years. (UMF No. 19.) The U/A was resolved via settlement agreements achieved at two mediations. (UMF No. 7.) As a result, the depositions of additional Cedars-Sinai Medical Center witnesses that Michels & Lew noticed that had not yet been taken were eliminated by Dr. Orwasher’s decision to settle the case. (UMF Nos. 26-27.)
The first mediation took place on May 12, 2020, and was conducted by Jay Horton, Esq. of Judicate West. (UMF No. 8.) The May 12, 2020 mediation resulted in an agreement between Dr. Stanley Orwasher, Mrs. Orwasher, Dr. Pelot, and GASP for $1,500,000.00 (“Pelot/GASP Settlement”). (UMF No. 9.) The second mediation took place on July 21, 2020, and was conducted by Jay Horton, Esq. of Judicate West. (UMF No. 10.) The July 21, 2020 mediation resulted in an agreement between Dr. Stanley Orwasher, Mrs. Orwasher, and Cedars-Sinai Medical Center for $600,000.00 (“Cedars-Sinai Settlement”). (UMF No. 11.) Dr. Stanley Orwasher and Mrs. Orwasher obtained a total settlement of $2,100,000.00 in the U/A. (UMF No. 12.)
On August 5, 2023, Mrs. Orwasher passed away. (UMF No. 13.) A few days later, Dr. Orwasher executed a Release of All Claims formalizing the Pelot/GASP Settlement and Cedars-Sinai Settlement. (UMF Nos. 14-15.)
In special interrogatory responses submitted in this present action, Dr. Orwasher claims he should have recovered $500,000.00 for non-economic damages (MICRA cap for two Plaintiffs); $400,000.00 for out of pocket expenses; $1,051,200.00 for group two it is home care provided by family members; $3,800,000.00-$5,800,000.00 for future medical expenses; and $350,000.00-$650,000.00 for cost of a home remodel in the U/A. (UMF No. 20.)
Legal Standard
The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) The Code of Civil Procedure § 437c(c) “requires the trial judge 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.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)
As to each cause of action as framed by the complaint, the defendant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c(p)(2); see also Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) 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.)
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. 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.)
Discussion
Defendants Philip Michels, a Professional Law Corporation dba Law Offices of Michels & Lew, Philip Michels, an individual, Jinheung N. Lew, an individual (hereinafter “Michels & Lew”) move for summary judgment of the Second Amended Complaint (“SAC”) on the grounds that Michels & Lew’s conduct as alleged in the SAC caused Plaintiff no damage.
Overarching Argument
In the context of legal malpractice, plaintiff must establish “by a preponderance of the evidence, that but for the attorney's negligent acts or omissions, he would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred.” (Namikas v. Miller (2014) 225 Cal.App.4th 1574, 1582.)
Michels & Lew argue the causation and damages are essential elements in each of Plaintiff’s causes of action against them. As such, Michels & Lew contend Plaintiff cannot meet his burden to establish that but-for Michels & Lew’s conduct, you would have obtained a more favorable result in the U/A or what that better result would have been. Furthermore, Michels & Lew assert Mrs. Orwasher passed away a month after the case had settled and had the case proceeded to trial the damages were coverable for her would have been limited to only economic damages for losses she sustained after the alleged negligence and before her passing because her estate could not have recovered non-economic damages for pain and suffering that she sustained pursuant to the Code of Civil Procedure Section 377.34’s prior version effective to December 31, 2021. Moreover, Michels & Lew assert the other damages plaintiff claims should have been recovered, i.e., for the cost of future medical expenses and a home remodel were eliminated by the fact that Mrs. Orwasher passed away. Michels & Lew also argue the plaintiff as a loss of consortium plaintiff still would have had his claim for general damages, which was subject to $250,000 cap for non-economic damages under California's Medical Injury Compensation Reform Act (“MICRA”) pursuant to Civil Code Section 3333.2’s prior version effective to December 31, 2022. Likewise, Michels & Lew contend using plaintiffs damages figures the total that could have been recovered had the case instead gone to trial was $1,701,200.00, which is less than the amount Plaintiff obtained in the settlement. Additionally, Michels & Lew argue there is no evidence whatsoever that the underlying defendants ever would have paid more in the settlement because $2,100,000.00 was the most money that could have been procured via settlement in the U/A. Lastly, Michels & Lew argue that during the underlying representation, plaintiff never indicated to them that there was any grounds for child preference or that Mrs. Orwasher’s health was such that a preference was necessary to avoid prejudicing her interest in the litigation but rather repeatedly indicated he expected Mrs. Orwasher to live at least 6-7 more years.
In opposition, Plaintiff argues the Pelot/GASP Settlement including the $1,000,000.00 policy limit for Dr. Pelot and $500,000.00 from her employer, so the insurance limits totaling $2,000,000.00 indicate GASP could have paid up to an additional $500,000.00 more to settle the case. Similarly, Plaintiff argues Cedars=Sinai Medical Center’s form interrogatory, set one, no. 4.1 response provides that it was self-insured to cover any potential adverse verdict in this case. Further, Plaintiff asserts Michels & Lew’s failure to seek additional past economic losses for gratuitous past home and hospital attendant care provided by family members clearly raises a triable issue of material facts as to whether the underlying defendants would have paid more than $2,100,000.00 to settle. Plaintiff also contends the issue of the altered medical chart would have also substantially increased the value of the claims against Cedars-Sinai Medical Center. In addition, Plaintiffs assert had Michels & Lew prepared the Cedars’ ICU doctors, gratuitous home care damages and chart alteration case for the May 12, 2020 mediation, Plaintiff’s case would have been unaffected by Mrs. Orwasher’s declining health and ultimate passing, and absolutely would have settled for significant more than $2,100,000.00. Last, Plaintiff argues the disgorgement of fees of Michels & Lew due to their breach of fiduciary duties would also be awarded to increase settlement.
In reply, Michels & Lew argue Plaintiff submits no evidence at all of damages exceeding $2,100,000.00 that could or would have been presented at trial in the U/A had the case not settled. As a result, Michels & Lew contend there is no conflicting evidence and no triable issue regarding whether Plaintiff and Mrs. Orwasher would have obtained a better result in the U/A had the cause proceeded to trial. Likewise, Michels & Lew contend Plaintiff offers no evidence at all that any of the underlying defendants or the parties that he now claims should have been named as defendants would have agreed to pay and would have paid a dollar more in settlement such as testimony from Cedars indicating that it would have paid more in a settlement even if the case had been prosecuted differently; testimony from Dr. Pelot and GASP demonstrating they would have paid more; and evidence from Cedars ICU doctors, dr. Ghandehari, and Ms. Simons showing they would have paid more in settlement had they been named. Additionally, Michels & Lew argue the opinions of Robert Vaage and Robert Sall are inadmissible. (See Evidentiary Rulings herein.) Finally, Michels & Lew contend plaintiffs new purported dispute regarding attorney’s fees was not alleged in the SAC, thus it cannot now defeat summary judgment and does not create a trouble issue of material fact because their conduct caused plaintiff no damage.
Alternatively, Michels & Lew move for summary adjudication of the first, second, and third causes of action because plaintiffs cannot establish the essential elements of causation and damage; and Plaintiff’s claim for punitive damages because Plaintiff cannot establish any of Michels & Lew’s conduct was malicious, oppressive or fraudulent as would be required to support the claim under Civil Code section 3294.
First Cause of Action for Breach of Fiduciary Duty
To state a cause of action for breach of fiduciary duty, a plaintiff must establish “(1) the existence of a fiduciary relationship, (2) its breach, and (3) damage proximately caused by that breach.” (O’Neal v. Stanislaus County Employees’ Retirement Assn. (2017) 8 Cal.App.5th 1184, 1215.)
Michels & Lew argue plaintiff cannot establish damages proximately caused by their alleged breach because $2,100,000.00 was the most that could have been recovered in the U/A via settlement and more than what could have been recovered had the U/A gone to trial such that any alleged breach of duty by Michels & Lew caused Plaintiff no damage.
Here, Michels & Lew have met their initial burden of proof that a triable issue of material fact does not exist as to whether Michels & Lew’s conduct proximately caused damage to Plaintiff. The proffered declarations of Jinheung H. Lew, Philip Michels, and John T. Lupton; SAC; Retainer Agreement; Plaintiff’s discovery responses; Complaint in U/A; and Release of All Claims indicate Michels & Lew engaged in the discovery process in preparation of trial including the taking of 13 depositions Cedars-Sinai Medical Center’s witnesses and issuing subpoenas for Mrs. Orwasher’s medical records. The evidence further demonstrates that Michels & Lew noticed additional depositions that had not yet been taken prior to the July 21, 2020 settlement agreement. Additionally, the proffered evidence showcases that the mediation and settlement agreements were reached because Plaintiff decided to settle the case.
The burden now shifts to Plaintiff to show that a triable issue of material fact does exist as to whether Michels & Lew’s conduct proximately caused damage to Plaintiff.
In opposition, Plaintiff argues Michels & Lew breached their fiduciary duty by failing to provide a fully executed copy of their Attorney Agreement between them and Plaintiff to Plaintiff when they were retained in in violation of California Business and Professions Code Section 6147, subdivision (b). Thus, plaintiff argues the Attorney Agreement is voidable at the option of the Plaintiff and the attorney shall thereupon be entitled to collect a reasonable fee. Furthermore, Plaintiff contends the scope of the Attorney Agreement is in question and was never discussed or affirmed by Michels & Lew at the time they were retained, so the Attorney Agreement was vague and ambiguous at best and any ambiguities would be construed against them in determining the scope of representation. Moreover, Plaintiff argues Michels & Lew acted below the standard of care and failing to properly investigate and conduct discovery of potentially responsible parties for the injuries alleged in the U/A and to consult with the client in a matter of required by rule 1.4 of the Rules Of Professional Conduct. Additionally, Plaintiff contents Michels & Lew did not name persons or entities that were actual or potential responsible employees of Cedars-Sinai Medical Center for purposes of seeking recovery against them and as against Cedars-Sinai Medical Center under the doctrine of respondeat superior. Finally, Plaintiff argues had Michels & Lew done their job correctly and adequately pursued claims against employees of Cedars-Sinai Medical Center and against Cedars-Sinai Medical Center under the doctrine of respondeat superior, including ICU physician Sara Ghandehari, M.D., Cedars-Sinai Medical Center would have paid significantly more than $600,000.00 for the full and final release of all claims.
In reply, Michels & Lew argue analyzing causation and damage necessarily assumes a breach, thus Plaintiff’s arguments and purported evidence regarding breaches of duty are irrelevant to this motion.
Plaintiff proffered declarations of McBratney, Robert Vaage, Robert Sall, and his own declaration; Pelot/GASP and CSMC discovery responses; Dr. Michelle Pelot and Bradford Davis deposition testimony excerpts; GASP insurance declaration page; Michels deposition testimony excerpts.
Having reviewed the evidence presented by both parties and construing it in the light most favorable to Plaintiff, the Court presumes Michels & Lew entered into an agreement with Plaintiff and Mrs. Orwasher to legally represented against Cedars-Sinai Medical Center, Michelle Pelot, and GASP in a negligence and loss of consortium action. The Court further presumes no trial preference was sought in the U/A. Moreover, the Court presumes Mrs. Orwasher died prior to the case proceeding to trial. Additionally, the Court presumes no other defendants besides Cedars-Sinai Medical Center, Michelle Pelot, and GASP were added to the U/A. The Court presumes Dr. Pelot/GASP had a total policy limit of $2,000,000.00 and Cedars-Sinai Medical Center was self-insured to pay any adverse amount rendered by a verdict. Finally, the Court presumes Plaintiff settled the case for a total amount of $2,100,000.00.
The Court finds that there is evidence, or reasonable therefrom, which would support Plaintiff’s position that he could have by preponderance of the evidence obtained a more favorable judgment or settlement in the U/A. The Court further finds that Plaintiff only obtained $2,100,000.00. The Court also finds that Michels & Lew did not added any additional defendants that could have increased the amount of settlement Plaintiff might have obtained. As such, there is disputed facts as to whether Michels & Lew caused damage to Plaintiff.
Therefore, the motion for summary judgment is DENIED as to Plaintiff’s first cause of action for breach of fiduciary duty.
Second Cause of Action for Fraud
“The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage” (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060.)
Michels & Lew argue Plaintiff cannot establish the elements of reliance or resulting damage because him and Mrs. Orwasher could not have obtained more money in the U/A. As such, Michels & Lew assert even if they misrepresented or concealed a fact, which they did not, Plaintiff could not have relied on it to his detriment and has not been damaged by it because he could not obtain a better result in the U/A.
Here, Michels & Lew have met their initial burden of proof that a triable issue of material fact does not exist as to whether Michels & Lew’s conduct proximately caused damage to Plaintiffs. Michels & Lew proffered the same evidence for all causes of action.
The burden now shifts to Plaintiffs to show that a triable issue of material fact does exist as to whether Michels & Lew’s conduct proximately caused damage to Plaintiffs.
In opposition, Plaintiff argues Michels & Lew make improper conclusory allegations in support of their claim that plaintiff cannot establish such conduct supportive of punitive damages. Thus, Plaintiff contends Michels & Lew failed to meet their burden as they did not provide any evidentiary of facts to support their contention that Plaintiff cannot prove the necessary elements of his claims for fraud. Plaintiff further argues he was justified in his reliance on Michels & Lew because they held themselves out to be medical malpractice specialists who were well equipped to handle a case such as Plaintiff’s. Plaintiff also contends any reasonable person would rely on the expertise and experience of their attorney in this situation to exhaust all measures and representing them. In addition, Plaintiff argues Michels & Lew were omitting crucial evidence and clearly lying to Plaintiff concerning their claims against Cedars-Sinai Medical Center. Lastly, Plaintiff contends when he would ask about the claims against Cedars-Sinai Medical Center he believed Michels & Lew were being honest when they told him that all claims were being pursued against Cedars-Sinai Medical Center and that $600,000 was the best offer they could get.
Plaintiff proffered the same evidence for all causes of action.
As discussed above, the Court finds that there is evidence, or reasonable therefrom, which would support Plaintiff’s position that he could have by preponderance of the evidence obtained a more favorable judgment or settlement in the U/A.
Therefore, the motion for summary judgment is DENIED as to Plaintiff’s second cause of action for fraud.
Third Cause of Action for Breach of the Implied Covenant of Good Faith and air Dealing
“The [implied] covenant of good faith and fair dealing [is] implied by law in every contract. The covenant is read into contracts and functions ‘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.’” (Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1244.) As such, “A breach of the implied covenant of good faith is a breach of the contract.” (Id.)¿
“Establishing that claim requires a showing of “(1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (D’Arrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800.)¿
Michels & Lew argue the plaintiff cannot establish that their conduct deprived him of the benefit of his agreement because the benefit of his agreement was their legal representation of him and Mrs. Orwasher in the U/A, in which they obtained the most money that could have been obtained via settlement and more than could have been obtained at trial.
Here, Michels & Lew have met their initial burden of proof that a triable issue of material fact does not exist as to whether Michels & Lew’s conduct proximately caused damage to Plaintiffs. Michels & Lew proffered the same evidence for all causes of action.
The burden now shifts to Plaintiffs to show that a triable issue of material fact does exist as to whether Michels & Lew’s conduct proximately caused damage to Plaintiffs.
In opposition, Plaintiff argues Michels & Lew violated the covenant in their Attorney Agreement when they intentionally failed to pursue claims against Cedars’ ICU doctors and nurse Cristina Simons RN for altering Mrs. Orwasher’s medical chart (SPO2 from 52% to 100%), as well as forgoing the more than $1,000,000 in gratuitous home care damages. Plaintiff also argues Cedars-Sinai Medical Center was jointly and severally responsible for paying 100% of Plaintiff’s economic damages, thus Michels & Lew deprived Plaintiff of a settlement that should have been significantly more than the $600,000 that was received. Finally, Plaintiff contends Michels & Lew did not fully perform the terms of the agreement and as a result Plaintiff suffered.
Plaintiff proffered the same evidence for all causes of action.
As discussed above, the Court finds that there is evidence, or reasonable therefrom, which would support Plaintiff’s position that he could have by preponderance of the evidence obtained a more favorable judgment or settlement in the U/A.
Therefore, the motion for summary judgment is DENIED as to Plaintiffs’ third cause of action for breach of the implied covenant of good faith and fair dealing.
Punitive Damages
To state a claim for punitive damages under Civil Code section 3294, a plaintiff must allege specific facts showing that the¿defendant has been guilty of malice, oppression or fraud. (Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1042.) The basis for punitive damages must be pled with specificity; conclusory allegations devoid of any factual assertions are insufficient. (Id.) A motion to strike may lie where the facts alleged, if proven, would not support a finding that the defendant acted with malice, fraud or oppression. (Turman v. Turning Point of Central California (2010) 191 Cal. App. 4th 53, 63.)¿¿¿
¿“Malice” is defined in section 3294(c)(1) as “conduct which is intended by the defendant to cause injury” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Oppression” is defined in section 3294(c)(2) as “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.” The term “despicable” has been defined in the case law as actions that are “base,” “vile,” or “contemptible.” (See, e.g., Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal. App. 4th 847, 891.)¿¿“Fraud” is defined in section 3294(c)(3) as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”¿
¿To prove that a defendant acted with “willful and conscious disregard of the rights or safety of others,” it is not enough to prove negligence, gross negligence or even recklessness. (Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 87.) Rather, a plaintiff must allege facts demonstrating that “the defendant acted in such an outrageous and reprehensible manner that the jury could infer that he [or she] knowingly disregarded the substantial certainty of injury to others.” (Id. at 90). Further, the allegations must be sufficient for a reasonable jury to conclude that Defendant’s conduct was “despicable” defined as “base, vile or contemptible.” (College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 725.)¿
Michels & Lew argue there is no evidence that they acted with malice, oppression or fraud toward Plaintiff or Mrs. Orwasher. In fact, Michels & Lew contend they did their best to represent Plaintiff and Mrs. Orwasher to the best of their abilities, advanced approximately $100,000 in litigation costs, and ultimately achieved an excellent result more than what could have been recovered had the case gone to trial. Furthermore, Michels & Lew assert after July 2019, they continued to investigate the claims on behalf of Plaintiff and Mrs. Orwasher and prepare the case for trial including against Cedars-Sinai Medical Center. Michels & Lew also contend they took at least thirteen additional depositions most of which Cedars-Sinai Medical Center’s witnesses before the case was settled. Moreover, Michels & Lew argue they notice additional depositions of Cedars-Sinai Medical Center’s witnesses but those depositions had not yet been taken as of the Cedars-Sinai Settlement. Finally, Michels & Lew argue the need for those depositions had been eliminated by Plaintiff’s decision to settle the case but had he not decided to settle the case they would have been taken as well.
Here, Michels & Lew have met their initial burden of proof that a triable issue of material fact does not exist as to whether Michels & Lew’s conduct was malicious, oppression or fraudulent. Michels & Lew proffered the same evidence for all claims.
The burden now shifts to Plaintiffs to show that a triable issue of material fact does exist as to whether Michels & Lew’s conduct was malicious, oppression or fraudulent.
In opposition, Plaintiff argues Michels & Lew committed fraud acts during their representation of Plaintiff when they made a decision not to fully pursue claims against Cedars-Sinai Medical Center and their doctors and concealing that information from Plaintiff. Furthermore, Plaintiff contends while representing him, Michels & Lew hatched a plan to only pursue claims against “Pelot and GASP then be done with the case” but never communicated this to Plaintiff and had no intention of doing so. As such, Plaintiff asserts Michels & Lew’s acts were cruel, especially knowing firsthand the emotional turmoil that Plaintiff had to endure during the litigation process. Nonetheless, Plaintiff asserts Michels & Lew made a choice, several choices in fact, to abandon their own client who had suffered a devastating injury, for their own personal gain. Last, Plaintiff argues Michels & Lew also breached their duties of loyalty, candor, independent judgment, communication, and full and fair disclosure to the Clients regarding their apparent undisclosed intent on or about July 10, 2019 when they planned to “Get the Pelot and GASP money, then we are done with case.” (Robert K. Sall Decl. ¶ 9.2)
In reply, Michels & Lew argue plaintiffs submits no clear and convincing evidence to support his punitive damages claim and only cites to an alleged but nonexistent plan to “get Dr. Pelot and GASP money and be done with the case,” when they prosecuted the U/A against Cedars-Sinai Medical Center for another year including taking 13 depositions of Cedars-Sinai Medical Center personnel.
Plaintiff proffered the same evidence for all claims.
As discussed above, the Court finds that there is evidence, or reasonable therefrom, which would support Plaintiff’s position that he could have by preponderance of the evidence obtained a more favorable judgment or settlement in the U/A. The Court further finds that Michels & Lew’s emails refusing to added defendants and stating to get Dr. Pelot/GASP and get the money suggests that there is a triable issue of material fact as to whether Michels & Lew acted maliciously.
Therefore, the motion for summary judgment as to the claim for punitive damages is DENIED.
It is so ordered.
Dated: April 11, 2024
_______________________
ROLF M. TREU
Judge of the Superior Court
Hearing
date: April 11, 2024
Moving
Party: Defendants Philip Michels, et al.
Responding
Party: Plaintiffs Stanley Orwasher and
Estate of Phyllis Orwasher
Motion
to Continue Trial and Related Pre-Trial Dates
The Court
considered the moving papers, opposition, and reply.
The
motion is GRANTED; Trial: 10-21-24 9:30 am, Dept. 45; FSC: 10-9-24 9:30 am, Dept 45.
Background
On
October 26, 2022, Plaintiffs Stanley Orwasher, individually and the Estate of
Phyllis Orwasher, by and through its Successor in Interest, Stanley Orwasher
(“Plaintiffs”) filed the operative Second Amended Complaint (“SAC”) against
Defendants Philip Michels, a Professional Law Corporation dba Law Offices of
Michels & Lew, Philip Michels, an individual, Jinheung N. Lew, an
individual (collectively, “Michels & Lew”), and DOES 1-10, inclusive for:
(1) Breach of Fiduciary Duty; (2) Fraud; (3) Breach of the Implied Covenant of
Good Faith and Fair Dealing; and (4) Professional Negligence.
On
February 26, 2024, Michels & Lew filed this instant Motion to Continue
Trial and Related Pre-Trial Dates. On March 28, 2024, Plaintiffs filed their
opposition. On April 4, 2024, Michels filed his reply.
Legal
Standard
Pursuant
to California Rules of Court (CRC), Rule 3.1332, subdivision (c): the court may
grant a continuance for “good cause,” which includes: (1) unavailability of an
essential lay or expert witness due to death, illness, or other excusable
circumstances; (2) unavailability of a party due to death, illness, or other
excusable circumstances; (3) unavailability of trial counsel due to death,
illness, or other excusable circumstances; (4) substitution of trial counsel
required in the interests of justice; (5) addition of a new party or other
parties in regard to a new party’s involvement hasn’t had a reasonable
opportunity to conduct discovery and prepare for trial; (6) party’s excused
inability to obtain essential testimony, documents, or other material evidence
despite diligent efforts; or (7) significant, unanticipated change in the
status of the case as a result of which indicates the case is not ready for
trial. (CRC, Rule 3.1332, subd. (c).)¿
Other relevant
factors to be considered may include: “(1) the proximity of the trial date; (2)
whether there was any previous continuance, extension of time, or delay of
trial due to any party; (3) the length of the continuance requested; (4) the
availability of alternative means to address the problem that gave rise to the
motion or application for a continuance; (5) the prejudice that parties or
witnesses will suffer as a result of the continuance; (6) if the case is
entitled to a preferential trial setting, the reasons for that status and
whether the need for a continuance outweighs the need to avoid delay; (7) the
court’s calendar and the impact of granting a continuance on other pending
trials; (8) whether trial counsel is engaged in another trial; (9) whether all
parties have stipulated to a continuance; (10) whether the interests of justice
are best served by a continuance, by the trial of the matter, or by imposing
conditions on the continuance; and (11) any other fact or circumstance relevant
to the fair determination of the motion or application” (CRC, Rule 3.1332(d).)¿
“A trial court
has great discretion in the disposition of an application for a continuance.
Absent a clear abuse of discretion, the court’s determination will not be
disturbed.” (Estate of Smith v. Atkinson (1973) 9 Cal.3d 74, 81.) “Such
discretion is abused, however, where the lack of a continuance results in the
denial of a fair hearing.” (Rankin v. Curtis (1986) 183 Cal.App.3d 939,
947.)¿
Discussion
Defendants
Philip Michels, a Professional Law Corporation dba Law Offices of Michels &
Lew, Philip Michels, an individual, Jinheung N. Lew, an individual (hereinafter
“Michels & Lew”) move for an order continuing the trial of this matter from
May 20, 2024 until January 6, 2025 or the next date thereafter convenient to
the Court’s calendar pursuant to rule 3.1332 of the California Rules of Court,
and that all discovery, motion and pretrial deadlines will run from the new
trial date. This motion is made on the grounds that Defendant Philip Michels is
unavailable for trial on May 20, 2024 due to his wife has been diagnosed with Stage
3 Ovarian Cancer and him being her primary caretaker during this time.
Specifically, Defendant
Philip Michels’ wife begins the first six rounds of chemotherapy in December
2023 and her current chemotherapy regimen will extend into June 2024. (Michels
Decl. ¶ 9.) Furthermore, Defendant Philip Michels contends his wife will start
a different chemotherapy regimen which will continue through the end of the
year. (Id. ¶ 11.) Moreover, Defendant Philip Michels asserts he has been
informed that the recovery after chemotherapy is a slow and prolonged process,
which includes physical therapy and occupational therapy and an adjustment to
extending his wife activities of daily living, so his wife will need ongoing
help on a daily basis through the end of the year. (Id.) Additionally,
Michels & Lew argue because Defendant Philip Michels is both an essential
lay witness and a party to this action his unavailability for trial constitutes
good cause for a continuance. (Ex. A, Michels Depo. pp. 10:14-21, 11:23-25.)
Michels & Lew also assert there are third party percipient witnesses
depositions that have not yet been taken due to witness availability issues,
thus the additional time before trial can be utilized to complete necessary
discovery, which has been to date commenced but not completed. (Lupton Decl. ¶
3.) Michels & Lew further argue there have been no previous trial continuances
in this matter; the length of continuance is reasonable; there are no
alternative means to address the problem; none of the parties or witnesses
would suffer any apparent prejudice if the trial were continued; this case has
not been designated for preferential trial setting; the Court’s calendar should
be accommodated because the requested continuance is to January 6, 2025 or the
next date available on the Court’s calendar; Michels & Lew’s trial counsel will
not be engaged in another trial at the time of trial if the requested
continuance is granted; and all parties agree to a continuance. In fact,
Michels & Lew contend the only dispute is the duration of the continuance
as Plaintiffs declined to stipulate to a continuance of more than 90 days.
Lastly, Michels & Lew assert the interests of justice are best served by a
continuance to allow Defendant Philip Michels to be present to defend himself and
his firm at the trial of this matter.
In opposition,
Plaintiffs argue Defendant Philip Michels has not demonstrated an affirmative
showing of good cause for a trial continuance for eight months. Specifically, Plaintiffs
contend there are multiple contradictions with Defendant Philip Michels’ testimony
and distracters as to the reasons why he is trying to move the trial. In fact, Plaintiffs
assert that in Defendant Philip Michels’ deposition testimony taken on March 21,
2024, he testified that him and his son are the sole caretakers for his wife. (McBratney
Decl. ¶ 4.) As such, Plaintiffs contend Defendant Philip Michels should have no
issues with taking few days away to appear at trial with the son at home taking
care of his mother. Plaintiffs also argue Defendant Philip Michels can hire a
nurse for a short time during the trial to help with his wife's care, which is
a very reasonable and practical thing to do and he has done so in the past. (McBratney
Decl. ¶ 3.) Moreover, Plaintiffs Defendant Philip Michels has stated in his
declaration that the more therapy his wife receives the worse she will possibly
become and that her treatments will continue through the end of the year at
least, which means treatment could continue past January 2025 and that there is
no guarantee the treatment will be successful such that it will make it more
difficult for Defendant Philip Michels to make himself available for trial.
Additionally, Plaintiffs argue Defendant Philip Michels is not lead counsel in
this case and his presence throughout trial is not absolutely required to put
on his defense, thus his absence would not disrupt or prejudice his case.
Plaintiffs also contend Defendant Philip Michels can coordinate with the
parties in advance for a date that is convenient for him to testify at trial
and make himself available for that date like he did for his second deposition.
Finally, Plaintiffs argue an eight (8) month continuance is unreasonable because
the Court may continue the trial date by thirty (30) days only without the
consent of the adverse party; Michels & Lew fail to identify the names or
the number of witnesses whose depositions need to be taken; and Plaintiffs will
be prejudiced by having to spend money and time to coordinate with witnesses
and experts for a new trial date.
In reply,
Michels & Lew argue this motion should be mooted by their pending motion
for summary judgment, which is set for hearing concurrently. Specifically,
Michels & Lew contend if summary judgment is granted, there will be no need
for a trial or any continuance. Likewise, Michels & Lew contend if summary
judgment is denied a trial continuance is necessary. Furthermore, Michels &
Lew argue Defendant Philip Michels never said that he was his wife's sole
caregiver but testify that he is primarily the one helping her with activities
of daily living and that others helped too. Moreover, Michels & Lew argue Defendant
Philip Michels should not be required to
choose between caring for his wife while she undergoes chemotherapy and
participating in his defense at trial of this case when his presence throughout
trial would bolster the defense given his 40 years of trial experience. Michels
& Lew also contend Defendant Philip Michels absence at trial could lead the
jury to wrongly conclude he is disinterested in the trial. In addition, Michels
& Lew contend Defendant Philip Michels testified at the recent deposition
that he would not want to have a stranger care for his wife. Similarly, Michels
& Lew assert California Rules of Court provides that when a party and/or an
essential witness is unavailable for trial due to excusable circumstances, that
unavailability constitutes good cause for a trial continuance, thus his
unavailability is per se good cause for a continuance. Michels & Lew
further argue a continuance to January 2025 is reasonable under the
circumstances and Code of Civil Procedure Section 1054 does not support Plaintiff’s
assertion that his consent is required for a continuance over 30 days. Last,
Michels & Lew contend Plaintiff failed to demonstrate that he would be
prejudiced by a trial continuance because there is no evidence indicating any
witnesses or expert would be inconvenience if the trial were continued much
less that any witness would be unavailable for trial on a continued date.
The Court finds
that good cause for continuance of this case is warranted. Michels & Lew
have submitted sufficient evidence demonstrating that Defendant Philip Michels
is an essential lay witness and party to this action that will be unavailable
due to his wife’s medical condition; the current trial date is approximately a
month away; the interests of justice are served by a continuance; this is the
first request for a continuance in this case; and the parties all agreed to the
continuance. The only issue before the Court is the length of the continuance
as Michels & Lew request an eight (8) month continuance to January 2025.
However, Michels & Lew have not shown that an eight month long delay in
trial is reasonable provided the alternative to address the problem giving rise
to this motion. Defendant Philip Michels has indicated that he and his son are
the sole caretakers of his wife but also testified that medical personnel have
been utilized in the past to assist with his wife care. Although Defendant
Philip Michels has contended that he does not want strangers taking care of his
wife, he did not showcase that his son is incapable of taking care of Mrs.
Michels on the days of trial or specific days where he would need to be present
to testify. Lastly, Plaintiff has indicated he is willing and able to work with
Michels & Lew on coordinating dates in advance for Defendant Philip Michels
will be available to participate at trial.
Therefore, the motion to continue trial
and pre-trial dates is GRANTED: Trial: 10-21-24 9:30 am, Dept. 45; FSC: 10-9-24 9:30 am, Dept 45.
It
is so ordered.
Dated: April 11, 2024
_______________________
ROLF M. TREU
Judge of the
Superior Court