Judge: Michael E. Whitaker, Case: 23SMCV04229, Date: 2023-10-13 Tentative Ruling

Case Number: 23SMCV04229    Hearing Date: October 13, 2023    Dept: 207

TENTATIVE RULING

MOTION

This case arises from an attorney fee split dispute.  Plaintiff Aren Roui Israel (“Plaintiff”) has filed a complaint for money damages, asserting causes of action for (1) breach of written contract; (2) breach of covenant of good faith; (3) fraud and deceit; (4) conversion; (5) demand for accounting; and (6) declaratory relief.  The complaint is brought against Defendants Joshua Bordin-Wosk (“Bordin-Wosk”); B | B Law Group LLP (“BBLG”); Bordin | Semmer LLP (“BSLG”) and Rick Forry (“Forry”). 

Plaintiff now seeks writs of attachment against Bordin-Wosk and BBLG (collectively, “Defendants”).  Bordin-Wosk and BBLG have opposed the application.

EVIDENTIARY OBJECTIONS

            Bordin-Wosk and BBLG object to various portions of the Israel Declaration filed in support of the Applications for Writ of Attachment.  The Court rules as follows with respect to the evidentiary objections:

1.      Overruled

2.      Overruled

3.      Overruled

4.      Overruled

5.      Overruled

6.      Overruled

7.      Overruled

8.      Overruled

9.      Overruled

10.  Overruled

11.  Overruled

12.  Overruled

13.  Overruled

LEGAL STANDARD

“Attachment is a prejudgment remedy that allows a creditor to have a lien on the debtor's assets until final adjudication of the claim sued upon[.]”  (Weil & Brown, Cal. Practice Guide: Civ. Pro. Before Trial (The Rutter Group 2023) ¶ 9:853 et seq., p.  9(II)-117 et seq.)  “The creditor must follow statutory guidelines in applying for the attachment and establish a prima facie claim; and the court is required to make a preliminary determination of the merits of the dispute.”  (Ibid.)

“Except as otherwise provided by statute, an attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney’s fees.”  (Code Civ. Proc., § 483.010, subd. (a).)

The requirements for obtaining a writ of attachment are: (1) the claim upon which the attachment is based must be one upon which an attachment may issue; (2) plaintiff has established the probable validity of the claim upon which the attachment is based; (3) the attachment is not sought for a purpose other than recovery on the claim upon which the attachment is based; and (4) the amount to be secured by attachment is greater than zero.  (Code Civ. Proc., § 484.090, subd. (a).) 

            “The application shall be supported by an affidavit showing that the plaintiff on the facts presented would be entitled to a judgment on the claim upon which the attachment is based.”  (Code Civ. Proc., § 484.030.)  The facts stated in any such affidavit or verified complaint must be stated with particularity.  (Code Civ. Proc., § 482.040.)

            “A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.”  (Code Civ. Proc., § 481.190.)

ANALYSIS

Plaintiff seeks writs of attachment as to the breach of contract claim, arising from Defendants’ alleged breach of the referral fee agreement.  (Memorandum in Support of Application for Writ of Attachment (hereinafter “Memo”) at pp. 10:1-13:12.) 

Plaintiff has included a declaration, indicating:

1.      Plaintiff referred Lea Tayahua (“Tayahua”) to Bordin-Wosk and BBLG regarding a personal injury matter (Israel Decl. ¶ 4);

2.      Bordin-Wosk offered Plaintiff a referral fee constituting 15% of his attorney fee award on Tayahua’s case (Israel Decl. ¶ 6);

3.      Tayahua’s case settled (Israel Decl. ¶¶ 12-15 and Exs. E & L thereto);

4.      BBLG originally sent Plaintiff a $135,000 check for “Leah Tayahua Referral Fee” (Israel Decl. ¶ 16, and Ex. H);

5.      After Plaintiff deposited the check, BBLG issued a stop payment on the check, causing Plaintiff’s bank account to overdraft (Israel Decl. ¶¶ 18-20 and Ex. I);

6.      BBLG subsequently issued Plaintiff a replacement check in the amount of $35,000 (Israel Decl. ¶ 23 and Ex. K).

Plaintiff also attached to the declaration a “Client Acknowledgment of Attorney Referral Fee Split Agreement and Client Consent” form that is only signed by Plaintiff, and not Bordin-Wosk or client Tayahua.  (Ex. C to Israel Decl.)

Plaintiff argues she has a “probable validity” of prevailing on her claim, because Tayahua informed Plaintiff that Bordin-Wosk and BBLG’s attorney fee for the case was 45%, the settlement agreement indicates that the parties settled for the insurance policy limits; and the originally $135,000 check BBLG sent Plaintiff would represent a $2,000,000 total award.  (Memo at pp. 13:13-14:3.)

Plaintiff further argues that the claim is proper and legitimate to enforce her claim to the additional $100,000 she believes she is entitled to under the contract, which is an amount greater than zero.  (Memo at p. 14:4-13.)

Bordin-Wosk and BBLG argue in opposition that Plaintiff has not established a “probable validity” of prevailing on her claim because Plaintiff has not produced evidence establishing a written agreement, as is required for attorney fee splitting arrangements, pursuant to the California Rules of Professional Conduct, rule 1.5.1.

Rule 1.5.1(a) does not permit lawyers who are not of the same law firm to divide fees for legal services unless (1) the lawyers enter into a written agreement to divide the fee; (2) the client consented to the fee split arrangement in writing after being informed in writing of the fact that the fees will be divided, the identity of the lawyer parties to the division, and the terms of the division; and (3) the total fee charged will not increase by reason of the fee division.

Plaintiff has provided evidence that Tayahua was informed in writing (via a text message conversation) that Plaintiff and Bordin-Wosk were to divide fees, Plaintiff was to receive 15% of Bordin-Wosk’s fees and it would not increase the total amount of attorneys’ fees Tayahua was being charged.  (Ex. D to Israel Decl.) 

However, Plaintiff has not provided evidence that (1) Plaintiff and Bordin-Wosk entered into a written agreement to divide the fee; or (2) the client consented in writing to the fee split.  Although the text message thread between Plaintiff and Tayahua creates an inference that Tayahua was amenable to the fee split, that text message conversation contemplated that Tayahua would ultimately sign the agreement to evidence her consent.  The relevant agreement Plaintiff has provided is only signed by Plaintiff, and not by Bordin-Wosk or Tayahua. 

Therefore, Plaintiff has not established that it is more likely than not that she will prevail on her breach of written contract claim.

CONCLUSION AND ORDER

            Because Plaintiff failed to establish a probable validity she will prevail on her breach of contract claim, the Court denies Plaintiff’s applications for writs of attachment against Bordin-Wosk and BBLG.

            Plaintiff shall give notice of the Court’s ruling and file a proof of service of such. 

DATED: October 13, 2023                                                     ___________________________

Michael E. Whitaker

                                                                                          Judge of the Superior Court