Judge Monica Bachner, Case 21STCV29170 2023-03-16 Tentative Ruling

Defendants Kaufman Dolowich Vorluck LLP’s, Courtney E. Curtis’ aka Courtney Cutis-Ives, Barry Z. Brodsky’s, and Andrew Waxler’s motion for summary judgment is granted. Alternatively, summary adjudication is granted as to the 1^st -7^th causes of action (Issue Nos. 1-7, 9-15, 17-23 and 25-31). Given the Court’s ruling, the Court does not address Issue Nos. 8, 16, 24 and 32.

Defendants Kaufman Dolowich Vorluck LLP (“KDV”), Courtney E. Curtis aka Courtney Cutis-Ives (“Curtis”), Barry Z. Brodsky (“Brodsky”), and Andrew Waxler (“Waxler”) (collectively, “Defendants”) move for summary judgment against Plaintiff Edward M. Lyman III (“Lyman”) (“Plaintiff”) on his first amended complaint (“FAC”) on the grounds that there is no merit to any of the causes of action alleged against Defendants in the FAC. (Notice of Motion, pg. 2; C.C.P. §437c(a)(1).) In the alternative, Defendants move for summary adjudication on the 1st (violation of the CCPA) [Issue Nos. 1, 9, 17, 25], 2nd (professional negligence) [Issue Nos. 2, 10, 18, 26], 3rd (breach of fiduciary duty) [Issue Nos. 3, 13, 19, 27], 4th (breach of contract) [Issue Nos. 4, 12, 20, 28], 5th (breach of implied covenant of good faith and fair dealing) [Issue Nos. 5, 13, 21, 29], 6th (violation of unfair competition law) [Issue Nos. 6, 14, 22, 30], and 7th (conversion) [Issue Nos. 7, 15, 23, 31] causes of action and Plaintiff’s claim for punitive damages [Issue Nos. 8, 16, 24, 32]. (Notice of Motion, pgs. 2-4; C.C.P. §437c(f)(2).)

C.R.C. Rule 3.1300(a) provides, “[u]nless otherwise ordered or specifically provided by law, all moving and supporting papers must be served and filed in accordance with Code of Civil Procedure section 1005 and, when applicable, the statutes and rules providing for electronic filing and service.” Plaintiff’s opposition papers were untimely filed. The Court, in its discretion, will consider Plaintiff’s late filed papers. (C.R.C., Rule 3.1300(d).)

Defendants filed a separate statement in support of the motion in violation of C.R.C. Rule 3.1354(b) which provides that “Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.” Defendants citations to the evidence, specifically to depositions merely cited to the pages of the compendium of the evidence.

Defendants filed its request for judicial notice in an improper form as it was included in the middle of Defendants compendium of evidence.

Plaintiff’s declaration indicates he lodged exhibits with this Court, and Plaintiff lodged documents with this Court. Plaintiff did not file a motion or application to file these documents under seal as is required by C.R.C., Rule 2.551(b)(1), in violation of C.R.C., Rule 2.551(a). Further, Plaintiff failed to timely serve Defendants an unredacted copy of his improperly lodged declaration, in violation of C.R.C. Rule of Court 2.551(b)(2). The Court will not consider Plaintiff’s improperly lodged documents. The Court will also return the improperly lodged documents to Plaintiff.

Plaintiff filed a separate statement in opposition to the motion for summary judgment in violation of C.R.C. Rule 3.1354(b), which provides,

All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement.

(C.R.C., Rule 3.1354(b).) Plaintiff’s separate statement violates C.R.C. Rule 3.1350(h) in opposition to the motion for summary judgment because it raises objections. (C.R.C., Rule 3.1350(h).) Plaintiff failed to file a separate set of written objections to evidence. Therefore, the Court will not consider Plaintiff’s objections. (C.R.C., Rule 3.1354(b).)

Defendants’ 12/8/22 request for judicial notice of the Application of Non-Resident Attorney to Appear in a Specific Case Pro Hac Vice filed in the action Chiteishvili v. Vertifx LLC et al., Case No. 2:17-cv-08711-JFW-RAO in C.D. Cal. on December 3, 2017 (D-RJN, Exh. 17); the Order on Application of Non-Resident Attorney to Appear in a Specific Case Pro Hac Vice, in Chiteishvili v. Vertifx LLC et al. (D-RJN, Exh. 18); the Order Granting Plaintiff’s Motion for Summary Judgment on the Issue of Liability, filed on October 9, 2018, in Chiteishvili v. Vertifx LLC et al. (D-RJN, Exh. 19); the Findings of Fact and Conclusions of Law, filed on December 21, 2018 in Chiteishvili v. Vertifx LLC et al. (D-RJN, Exh. 20); FPB West Holdings, Inc.’s Verified Complaint for: (1) Quiet Title; (2) Declaratory Relief; and (3) Equitable Lien, filed in FPB West Holdings, Inc. v. Chiteishvili, et al., Case No. 19STCV18457 on May 28, 2019 (D-RJN, Exh. 21); the Complaint in Lyman v. Walzer Melcher LLP et al., Case No. 19STCV32486, on September 12, 2019 (D-RJN, Exh. 22); the cross-complaint filed in FPB West Holdings, Inc. v. Chiteishvili, et al., Case No. 19STCV18457 on September 25, 2019 (D-RJN, Exh. 23); the Doe amendment to the cross-complaint filed in FPB West Holdings, Inc. v. Chiteishvili, et al., Case No. 19STCV18457 on November 7, 2019 (D-RJN, Exh. 24); the first amended cross-complaint filed in FPB West Holdings, Inc. v. Chiteishvili, et al., Case No. 19STCV18457 on December 26, 2019 (D-RJN, Exh. 25); the substitution of attorney filed in FPB West Holdings, Inc. v. Chiteishvili, et al., Case No. 19STCV18457 on July 31, 2020 (D-RJN, Exh. 26); the request for dismissal filed in FPB West Holdings, Inc. v. Chiteishvili, et al., Case No. 19STCV18457 on August 3, 2020 (D-RJN, Exh. 27); the notice of pendency of action, recorded on March 5, 2018, No. 20180212653 (D-RJN, Exh. 28); the grant deed recorded on March 9, 2018, No. 20180231884 (D-RJN, Exh. 29); and a print-out from the Delaware Division of Corporations official portal indicating the status of CAN Financial Corporation as a corporation in good standing under Delaware law (D-RJN, Exh. 30) is granted.

On August 9, 2021, Plaintiff filed his initial complaint. On April 5, 2022, Plaintiff filed his FAC alleging seven causes of action against Defendants: (1) violation of the California Consumer Privacy Act (“CCPA”), (2) professional negligence, (3) breach of fiduciary duty, (4) breach of contract, (5) breach of good faith and fair dealing, (6) unfair competition, and (7) conversion, arising from Defendants alleged legal representation of Plaintiff. (See FAC.) On December 12, 2022, Defendants filed the instant motion. Plaintiff filed his untimely separate statement and declaration in opposition on March 3, 2023. Plaintiff did not file a memorandum of points and authorities in opposition, thereby conceding to Defendants’ legal analysis in their memorandum. Defendants filed their reply on March 8, 2023.

Plaintiff alleges he was employed as an associate attorney at Walzer Melcher LLP (“WM”) and pursued a whistleblower action (“Whistleblower Action”) against WM after he had been terminated from WM. (FAC ¶¶10-11.)

Nine days after Plaintiff filed the Whistleblower Action, Plaintiff was sued in a crossclaim by a former client for malpractice. (FAC ¶12.) Plaintiff contacted WM’s insurance carrier, CNA Insurance (“CNA”) for CNA to provide Plaintiff with an attorney. (FAC ¶13.) Plaintiff informed CNA of his pending Whistleblower Action against WM. (FAC ¶13.) CNA agreed that there was a conflict of interest between Plaintiff and WM, and that CNA would provide Plaintiff with his own attorney to defend him against the malpractice crossclaim. (FAC ¶13.) CNA reassured Lyman they would maintain confidentiality with him and not share information with WM. (FAC ¶13.) On October 23, 2019, KDV partner, Defendant Curtis, contacted Plaintiff to represent him and reassured Plaintiff that KDV only represented him and would not share Plaintiff’s confidential information with WM. (FAC ¶14.) Plaintiff alleges he agreed to be represented by KDV based on Defendant Curtis’ representations, reassurances, and the advertisement on KDV’s website concerning their legal services. (FAC ¶14.)

Plaintiff shared highly sensitive confidential information with KDV, including legal strategies, work product, analysis, notes, and direct evidence relating to the Whistleblower Action, the malpractice crossclaim, and how both cases were interrelated. (FAC ¶15.) Plaintiff also shared with KDV highly confidential, sensitive, and privileged information including detailed reports and evidence he had provided to the State Bar of California, the Department of Justice, and the FBI. (FAC ¶16.) A week after Lyman disclosed confidential information to Defendant Curtis, she emailed him in passing that one of KDV’s co-managing partners, Defendant Brodsky, had a pre-existing and continuing relationship with Christopher C. Melcher of WM. (FAC ¶17.) Curtis advised Plaintiff that she and WM did not think it was a problem. (FAC ¶17.) Plaintiff alleges KDV disclosed Plaintiff’s confidential and attorney-client privileged information, including work product, directly to WM. (FAC ¶19.) On July 30, 2020, Plaintiff fired KDV amid a mediation in the malpractice crossclaim and immediately demanded KDV provide him with his entire client file. (FAC ¶21.)

Plaintiff alleges on August 7, 2020, Defendants emailed Plaintiff a hyperlink to download two .zip files, which contained only portions of his client files. (FAC ¶22.) Plaintiff did not know at the time the hyperlink was unencrypted and linked to the .zip files, which Defendants had uploaded to a popular public filesharing service. (FAC ¶22.) The .zip files contain over 750mb worth of Plaintiff’s client files, which are unencrypted and unredacted. (FAC ¶22.) Plaintiff alleges the .zip files presently remain on the public filesharing website, which anyone can freely download without a login or password. (FAC ¶22.) The .zip files contain Plaintiff’s personal identifying information, including his social security number. The .zip files contain over 6,000 pages of confidential attorney-client privileged communications between Plaintiff and KDV. (FAC ¶22.) The .zip files contain highly sensitive and confidential communications Plaintiff made to the State Bar, Department of Justice, Securities and Exchange Commission, and FBI, including the detailed documentation and notes. (FAC ¶22.)

Plaintiff alleges on August 6, 2021, he first discovered the .zip files were exposed to the public, did not require an encrypted link to access them, were not encrypted, did not require a login or password to download the .zip files, and did not require password to open the .zip files. (FAC ¶23.) Plaintiff immediately notified KDV and the public file sharing website and requested that they immediately remove the .zip files. (FAC ¶23.) Plaintiff alleges the public file sharing website states that they cannot remove the .zip files, only KDV can. (FAC ¶23.)

Violation of CCPA (Civ. Code §§1798.100, 1798.150) (1st COA) [Issues 1, 9, 17, 25]

The CCPA grants consumers the right to bring a civil suit against a “business” if the consumer’s nonencrypted, nonredacted personal information is “subject to an unauthorized access and exfiltration, theft, or disclosure as a result of the business’s violation of the duty to implement and maintain reasonable security procedures and practices.” (Civ. Code §1798.150(a)(1).)

Plaintiff alleges Defendants are a partnership or other legal entity organized or operated for the profit or financial benefit of its shareholders or other owners. Defendants collect consumers’ personal information. (FAC ¶28.) Plaintiff alleges Defendants determine the purposes and means of the processing of consumers’ personal information. Plaintiff alleges Defendants do business in the State of California. (FAC ¶28.) Plaintiff alleges Defendants and/or the entity that controls them and shares common branding with them, as of January 1 of the calendar year, had annual gross revenues in excess of twenty-five million dollars ($25,000,000), as adjusted in the January of every odd-numbered year to reflect any increase in the Consumer Price Index. (FAC ¶28.) Plaintiff alleges Defendants’ use of personal information (“PI”) is for their business’s operational purposes. (FAC ¶29.) Plaintiff alleges he provided Defendants with PI and personally identifiable information (“PII”) including his first name, last name, and social security number, and on August 7, 2020, Defendants posted two .zip files containing over 750 mb of Plaintiff’s unencrypted and unredacted PI and PII on a publicly accessible file sharing website, without requiring a login or password to download the same. (FAC ¶¶30-31.) Plaintiff alleges his PI and PII remain on the publicly accessible file sharing website, despite Plaintiff’s requests to Defendants and the filesharing website to have the information removed. (FAC ¶32.) Plaintiff alleges his PI and PII was subject to and remains subject to unauthorized access and exfiltration. (FAC ¶33.)

(1) A sole proprietorship, partnership, limited liability company, corporation, association, or other legal entity that is organized or operated for the profit or financial benefit of its shareholders or other owners, that collects consumers’ personal information, or on the behalf of which such information is collected and that alone, or jointly with others, determines the purposes and means of the processing of consumers’ personal information, that does business in the State of California, and that satisfies one or more of the following thresholds:

(A) As of January 1 of the calendar year, had annual gross revenues in excess of twenty-five million dollars ($25,000,000) in the preceding calendar year, as adjusted pursuant to paragraph (5) of subdivision (a) of Section 1798.185.

(B) Alone or in combination, annually buys, sells, or shares the personal information of 100,000 or more consumers or households.

(2) Any entity that controls or is controlled by a business, as defined in paragraph (1), and that shares common branding with the business and with whom the business shares consumers’ personal information. “Control” or “controlled” means ownership of, or the power to vote, more than 50 percent of the outstanding shares of any class of voting security of a business; control in any manner over the election of a majority of the directors, or of individuals exercising similar functions; or the power to exercise a controlling influence over the management of a company. “Common branding” means a shared name, servicemark, or trademark that the average consumer would understand that two or more entities are commonly owned.

(3) A joint venture or partnership composed of businesses in which each business has at least a 40 percent interest. For purposes of this title, the joint venture or partnership and each business that composes the joint venture or partnership shall separately be considered a single business, except that personal information in the possession of each business and disclosed to the joint venture or partnership shall not be shared with the other business.

(4) A person that does business in California, that is not covered by paragraph (1), (2), or (3), and that voluntarily certifies to the California Privacy Protection Agency that it is in compliance with, and agrees to be bound by, this title.

Defendants argue Plaintiff’s first cause of action against individual Defendants Curtis, Waxler, and Brodsky has no merit because the individual Defendants are not businesses covered by the CCPA. (Memorandum, pgs. 7-8.)

Defendants submitted evidence that Defendants Curtis, Waxler, and Brodsky are not sole proprietorships, partnerships, limited liability companies, corporations, associations, or any other form of legal entity, do not have annual gross revenues over twenty-five million dollars, buy or receive the personal information of 50,000 or more consumers, households, or devices, or derive 50 percent or more of annual revenue from selling consumer personal data. (Defendants’ Undisputed Separate Statement of Fact [“D-USSF”] 39; D-COE Decl. of Curtis ¶2, Decl. of Brodsky ¶3, Decl. of Waxler ¶2) (Defendants’ Disputed Separate Statement of Fact [“D-DSSF”] 40; D-COE Decl. of Curtis ¶2, Decl. of Brodsky ¶3, Decl. of Waxler ¶2.) Defendants met their burden to demonstrate the 1st cause of action has no merit as to the individual Defendants, shifting the burden to Plaintiff to demonstrate a triable issue of material fact as to whether the CCPA applies to the individual Defendants.

Plaintiff failed to meet his burden to demonstrate the CCPA applies to Defendants Curtis, Brodsky, and Waxler, and that the 1st cause of action has merit as to Defendants Curtis, Brodsky, and Waxler. Specifically, Plaintiff submitted an affidavit that Defendant KDV had annual gross revenues over twenty million dollars. (Plaintiff’ Disputed Separate Statement of Fact [“P-DSSF”] No. 40; Decl. of Lyman ¶13.) Plaintiff failed to meet his burden because KDV’s annual revenue does not change whether or not the CCPA applies to Defendants Curtis, Brodsky, and Waxler under its definition of a “business.”

Accordingly, Defendants’ motion for summary adjudication is granted as to the 1st cause of action as to Defendants Curtis, Brodsky, and Waxler.

The CCPA does not define “reasonable security procedures and practices.” (See Civ. Code §1798.150(a), §1798.140.) A recent formal opinion by the State Bar of California’s Standing Committee on Professional Responsibility and Conduct provides guidance on what constitutes “reasonable” data protection procedures in the context of a law practice. (Form. Op. No. 2020-203 [“Opinion”].) The Opinion explains the emerging legal standard “rejects requirements for a specific security measure (such as firewalls, passwords, or the like)” and instead asks whether the firm has adopted measures that are “reasonably calculated under the circumstances to minimize particular identified risks.” (Opinion, pg. 5.)

(A) An individual’s first name or first initial and the individual’s last name in combination with any one or more of the following data elements, when either the name or the data elements are not encrypted or redacted:

(ii) Driver’s license number, California identification card number, tax identification number, passport number, military identification number, or other unique identification number issued on a government document commonly used to verify the identity of a specific individual.. .

(B) A username or email address in combination with a password or security question and answer that would permit access to an online account.

As a condition to bringing suit for statutory damages under the CCPA, a consumer must “provide[] a business 30 days’ written notice identifying the specific provisions of [the CCPA] the consumer alleges have been or are being violated.” (Civ. Code §1798.150(b).) “In the event a cure is possible, if within the 30 days the business actually cures the noticed violation and provides the consumer an express written statement that the violations have been cured and that no further violations shall occur, no action for individual statutory damages or class-wide statutory damages may be initiated against the business.” (Id.)

“The implementation and maintenance of reasonable security procedures and practices pursuant to Section 1798.81.5 following a breach does not constitute a cure with respect to that breach. No notice shall be required prior to an individual consumer initiating an action solely for actual pecuniary damages suffered as a result of the alleged violations of this title. If a business continues to violate this title in breach of the express written statement provided to the consumer under this section, the consumer may initiate an action against the business to enforce the written statement and may pursue statutory damages for each breach of the express written statement, as well as any other violation of the title that postdates the written statement.” (Id.)

Amounts paid to monitor the internet for the presence of one’s personal information in the aftermath of an alleged security breach are recoverable only where it is demonstrated that third party access is “a reasonably certain consequence” of the alleged security breach and that monitoring services are therefore “reasonable and necessary.” (Gardiner v. Walmart, Inc. (N.D. Cal. 2021, No. 20-CV-04618-JSW) 2021 WL 2520103, at *6 [amounts paid on credit monitoring services were unrecoverable because the need for such services was not a “reasonably certain consequence” of the breach and therefore the services were not “reasonable and necessary”.]; see also Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1006 [amounts paid for medical monitoring following exposure to toxic chemicals is only compensable damages where there is a “further showing that the need for monitoring is a reasonably certain consequence of the exposure”].)

Defendants argue Plaintiff’s first cause of action against Defendant KDV has no merit because KDV implemented and maintained reasonable security procedures and practices, Plaintiff’s PI was not subject to an unauthorized access and exfiltration, Plaintiff failed to provide the required statutory notice, and Plaintiff has not suffered actual damages as a result of the alleged violation of the CCPA. (Memorandum, pgs. 8-11.)

Defendants submitted evidence that Defendant KDV did not violate the CCPA. Specifically, Defendants submitted evidence that it employed Discovery Document Technologies (“DDT”), a vendor with expertise in the protection and transfer of sensitive data that Defendant KDV frequently uses to transfer large files to third parties, to transmit Plaintiff’s file to him, and DDT placed Plaintiff’s file on a filesharing website called “Hightail,” where Plaintiff’s file was stored and only accessible by entering a unique URL, which included a string of ten randomly generated alpha-numeric characters. (D-USSF 26, 27; D-COE Decl. of Waxler ¶5, Decl. of Fuentes ¶¶2, 3, 5.) Defendants submitted evidence that DDT’s procedure was reasonably calculated to minimize the risk of unauthorized access to Plaintiff’s file because no one other than Plaintiff and anyone with whom Plaintiff shared the unique URL had access to Plaintiff’s file. (D-USSF 34; D-COE Exh. 13, Lyman Depo at 216:16-218:12; Decl. of Melcher ¶¶7, 9; Decl. of Walzer ¶¶7, 9) (D-DSSF 33; D-COE Exh. 13, Lyman Depo at 200:18-201:13, 201:20-202:24; Decl. of Fuentes ¶4.) Defendants submitted evidence that Plaintiff’s PI was not subject to an unauthorized access and exfiltration because Plaintiff’s file contained billing invoices but did not contain Plaintiff’s social security number. (D-DSSF 28; D-COE Decl. of Zurcher ¶6; Decl. of Curtis ¶18.) Defendants submitted evidence that at no point prior to filing suit did Plaintiff provide statutorily required written notice to Defendants. (D-USSF 32; Decl. of Waxler ¶7.) Defendants submitted evidence that Plaintiff did not suffer actual pecuniary damages from the placement and maintenance of his client file on Hightail because no one accessed Plaintiff’s file on Hightail and Plaintiff has no knowledge of anyone ever using his confidential information that was in KDV’s possession to cause him harm. (D-USSF 32; D-COE Decl. of Waxler ¶7) (D-DSSF 33; D-COE Exh. 13 at pgs. 102-104; Decl. of Fuentes ¶4.) Defendants met their burden to demonstrate Defendant KDV did not violate the CCPA and therefore Plaintiff’s cause of action is without merit, shifting the burden to Plaintiff to demonstrate a triable issue of material fact as to whether Defendant KDV violated the CCPA.

Plaintiff failed to meet his burden to demonstrate a triable issue of material fact as to whether Defendant KDV violated the CCPA. Specifically, Plaintiff submitted evidence that Plaintiff is currently unaware of who else has accessed his private client files without authorization and Hightail.com informed him that they were unable to determine how many people had accessed the files. (P-DSSF 33; Decl. of Lyman ¶11.) Plaintiff submitted evidence that Defendant KDV posted on Hightail.com without password protection or encryption highly sensitive personal information including his name, address, and social security number. (P-DSSF 28; Decl. of Lyman ¶¶9-10.) However, Plaintiff presents no evidence (1) he provided Defendant KDV statutorily required written notice pursuant to Civil Code §1798.150(b), (2) his PI on Hightail.com was ever accessed by a third party, and (3) actual damages.

Accordingly, Defendants’ motion for summary adjudication is granted as to the 1st cause of action as to Defendant KDV.

Based on the foregoing, Defendants’ summary judgment motion is granted. Alternatively, for appeal purposes, Defendants’ motion for summary adjudication as to the 1st cause of action for violation of the CCPA is granted.

Professional Negligence & Breach of Fiduciary Duty (2nd & 3rd COAs) [Issues 2, 3, 10, 13, 18, 19, 26, 27]

To plead a cause of action for breach of fiduciary duty, a plaintiff must allege facts showing (1) the existence of a fiduciary duty owed to that plaintiff, (2) a breach of that duty, and (3) resulting damage. (Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 524.)

“The elements of a cause of action in tort for professional negligence are (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.” (Budd v. Nixen (1971) 6 Cal.3d 195, 200; CACI 600.) To establish damages, a plaintiff must show that “he would certainly have . . . had to pay less in settlement or at trial” but for the alleged misconduct. (Namikas v. Miller (2014) 225 Cal.App.4th 1574, 1582.)

An attorney has “latitude” in “choosing between alternative tactical strategies.” (Kirsch v. Duryea (1978) 21 Cal.3d 303, 309.) “[A]n attorney’s duty is to maintain only such actions as appear to him legal or just.” (Id., citing Bus. & Prof. Code §6068(c).)

who had a duty when rendering legal advice and services to Plaintiff, and is required by law to use such skill, prudence, and diligence, as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake. (FAC ¶37.) Plaintiff alleges Defendants Brodsky and Waxler, were and are California licensed attorneys who had a duty when rendering legal advice and services to Plaintiff, and in supervising Defendant Curtis, and because Defendants Brodsky and Waxler hold themselves out as certified specialists in legal malpractice, they are held to an expert level of care, in

comparison to ordinary attorneys such as Defendant Curtis. (FAC ¶38.) Plaintiff alleges Defendants Brodsky and Waxler had a duty when rendering legal advice and services to Plaintiff, to exercise the skill, prudence, and diligence exercised by other certified specialists of skill and capacity who specialize in legal malpractice. (FAC ¶39.) Plaintiff alleges Defendants’ actions fell far below the applicable standards of care expected from attorneys in the same or similar circumstances, by engaging in the misconduct and illegal activities set forth throughout this complaint, including negligently violating the laws, rules, and regulations promulgated by the Legislature and State Bar of California, including by engaging in the misconduct and violations of law as set forth in ¶24. (FAC ¶40.) Plaintiff alleges there is a proximate causal connection between the Defendants’ breach of the duties they owed to Plaintiff, and the resulting injuries and damages to Plaintiff. (FAC ¶41.) Plaintiff alleges he incurred and continues to incur actual losses and damages resulting from Defendants’ professional negligence because Plaintiff’s legal disposition in the Sham Claim would have been better had Defendants performed legal services with competence and by unnecessarily prolonging the litigation, Defendants put their interests first, to Plaintiff’s detriment, and to the benefit of Plaintiff’s adversaries. (FAC ¶42.) Plaintiff alleges his disposition in the related Whistleblower Action is far worse off

today than it would have been, had Defendants not committed professional negligence. (FAC ¶42.)

Plaintiff alleges Defendants undertook to provide legal services to Plaintiff, as a result of their attorney-client relationship, Defendants had a fiduciary relationship with Plaintiff. Defendants owed to plaintiff a duty of utmost care which was fiduciary in nature. (FAC ¶46.) Plaintiff alleges Defendants breached the fiduciary duties they owed to Plaintiff by engaging in the misconduct set forth throughout this complaint, including by engaging in the misconduct and violations of the law set forth in ¶24. (FAC ¶47.) Plaintiff alleges Defendants’ conduct constitutes flagrant, malicious, and inexcusable breaches of their fiduciary obligations owed to Plaintiff and as a direct and proximate result of Defendants’ conduct, Plaintiff has suffered monetary damages in an amount that he is presently unable to fully ascertain because the injuries Defendants have caused to Plaintiff are continuing, but which exceeds the jurisdictional minimum of this Court. (FAC ¶¶48-49.)

Defendants argue Plaintiff’s allegations relating to Defendants’ strategic decisions, Defendant KDV’s relationship with Christopher Melcher, Defendants’ alleged disclosures of Plaintiff’s confidential information, and the return of Plaintiff’s client file do not support a claim for malpractice or breach of fiduciary duty. (Memorandum pgs. 12-16.)

Defendants submitted evidence that Plaintiff’s claims for professional negligence and breach of fiduciary duty have no merit. Specifically, Defendants submitted evidence that Plaintiff cannot establish a breach of Defendants’ duties to Plaintiff because Chiteishvili’s counsel testified in his deposition that if Defendants threatened a malicious prosecution action against him, he would not have dismissed FBP West Holdings, et. al v. Chiteishvili, et. al, Case No. 19STCV18457 (“Sham Claim”) because he believed his client’s claims were based on probable cause. (D-DSSF 25; D-COE Exh. 14, Aires Depo at 32:1-24, 37:3-25, 44:2-25, 48:13-49:25.) Defendants submitted evidence that Plaintiff did not suffer damages from the alleged breach. Specifically, Defendants submitted evidence that Plaintiff was dismissed from the “Sham Claim” without paying a settlement or attorneys’ fees. (D-USSF 24; D-COE Exh. 13, Lyman Depo at 83:11-22; D-DSSF 23; D-COE Exh. 16 at pgs. 151, 155 [RFAs Nos. 24 and 25].)

Defendants submitted evidence that Defendant Curtis informed Plaintiff that Defendant KDV had a relationship with Melcher because Defendant KDV had used Melcher as a standard of care expert several times, including on a case then set for trial by Defendant Brodsky, that Defendant Curtis asked Plaintiff whether he had any issues with Defendant KDV’s continued representation of Plaintiff in light of Defendant KDV’s relationship with Melcher, and that Plaintiff never communicated that he was unwilling to accept Defendant KDV’s representation of him, nor did he request new counsel. (D-USSF 16, 18; D-COE Exh. 13, Lyman Depo at 81:20-83:22; Decl. of Curtis ¶5, Exh. 1 at pg. 12.)

Defendants submitted evidence that they did not disclose Plaintiff’s confidential information. Specifically, Defendants submitted evidence that they inadvertently sent one of Plaintiff’s invoices to WM, and that Defendant KDV contacted WM as soon as it realized the error and confirmed that the invoice would be destroyed without being opened, that Defendant Curtis informed Plaintiff about the inadvertent communication to WM, and that Plaintiff told Defendant Curtis that the inadvertent transmission was “ok.” (D-DSSF 15; D-COE Exh. 13, Lyman Depo at 89:23-90:25, 128:7-25; Decl. of Curtis ¶¶5, 6, 11, Exh. 1 at pg. 14, Exh. 3 at pg. 31; Decl. of Melcher ¶¶7, 9; Decl. of Walzer ¶¶7, 9.)

Defendants submitted evidence that they returned Plaintiff’s entire client file to him within five business days of Plaintiff terminating Defendants’ representation. (D-USSF 29; D-COE Decl. of Waxler ¶5, Exh. 10 at pg. 64.) Defendants submitted evidence that CNA is a corporation that has previously engaged and paid Defendant KDV in the past to perform services that were of the same general kind as the services Defendant KDV was asked to provide in connection with Plaintiff’s representation, and thus, under Business & Professions Code §§6148(d)(2), (4), Defendant KDV was not required to have (and did not have) a written engagement agreement with CNA with respect to Plaintiff’s representation, and Plaintiff has not disputed that his file included the CNA billing invoices. D-USSF 13; D-COE Exh. 30 at pg. 387; Decl. of Curtis ¶3) (D-DSSF 28; D-COE Decl. of Curtis ¶18; Decl. of Zurcher ¶6.)

Finally, Defendants submitted evidence that there is no evidence that any third party accessed Plaintiff’s information on Hightail.com or that Plaintiff’s information was otherwise disclosed. (D-USSF 34; D-COE Exh. 13, Lyman Depo 216:16-218:12; Decl. of Melcher ¶¶7, 9; Decl. of Walzer ¶¶7, 9) (D-DSSF 33; D-COE Exh. 13, Lyman Depo at 200:18-201:13, 201:20-202:24; Decl. of Fuentes ¶4.) Defendants met their burden on summary adjudication, shifting the burden to Plaintiff to demonstrate a triable issue of material fact as to whether Defendants breached their duties to Plaintiff and that Plaintiff suffered damages proximately caused by Defendants’ breach.

Plaintiff failed to meet his burden on summary adjudication. Plaintiff presented no evidence but merely referred to Chiteishvili’s counsel’s testimony at deposition and argued it is not credible. (P-DSSF 25; D-COE Exh. 14 , Aires Depo at 129:24-130:7-12.) Plaintiff submitted evidence that after Plaintiff sent a request to Chiteishvili’s counsel to dismiss the cross-complaint against Family Legal, A Professional Law Corporation (“FL, Inc.”), Chiteishvili’s counsel dismissed the entity. (Decl. of Lyman ¶8.) Plaintiff’s evidence is not relevant to whether or not Plaintiff’s request that Defendants threaten a malicious prosecution action against Chiteishvili would have resulted in a dismissal of the “Sham Claim.” Moreover Plaintiff did not present any evidence of damages.

Accordingly, Defendants’ summary judgment motion is granted. Alternatively, for appeal purposes, Defendants’ motion for summary adjudication as to the 2nd and 3rd causes of action for professional negligence and breach of fiduciary duty are granted.

Breach of Contract & Breach of Covenant of Good Faith and Fair Dealing (4th & 5th COAs)(Issues 4, 5, 12, 13, 20, 21,29, 30)

Plaintiff’s causes of action for breach of contact and breach of covenant of good faith and fair dealing are based on the same allegations as his 2nd and 3rd causes of action for professional malpractice and breach of fiduciary duty, and therefore fail for the same reasons stated above.

Accordingly, Defendants’ summary judgment motion is granted. Alternatively, for appeal purposes, Defendants’ motion for summary adjudication as to the 4th and 5th causes of action is granted.

Plaintiff’s cause of action for violation of unfair competition law is based on the same allegations as his 2nd and 3rd causes of action for professional malpractice and breach of fiduciary duty, and therefore fail for the same reasons stated above. Plaintiff’s cause of action also fails on the basis that damages on a UCL claim are limited to restitution, and Plaintiff concedes he did not pay Defendants any money in legal fees. (Buckland v. Threshold Enterprise, Ltd. (2007) 155 Cal.App.4th 798, 812; P-USSF 24.)

Accordingly, Defendants’ summary judgment motion is granted. Alternatively, for appeal purposes, Defendants’ motion for summary adjudication as to the 6th cause of action is granted.

“The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.” (Welco Electronics, Inc. v. Mora (2014) 223 Cal.App.4th 202, 208.)

Plaintiff alleges Defendants substantially interfered with Plaintiff’s property by knowingly or intentionally: (1) preventing Plaintiff from having access to his client files; (2) refusing to return Plaintiff’s client files to him after Plaintiff demanded Defendants return his client files to him; (3) continuing to withhold Plaintiff’s client files, (4) disclosing his client files to third parties without authorization; (5) improperly safeguarding Plaintiff’s client files which contain his PI and PII. (FAC ¶72.) Plaintiff alleges that at no time did he consent to Defendants’ withholding, concealing, preventing him from accessing, keeping, disclosing to third parties, exposing to the public, and/or destroying, his client files. (FAC ¶73.)

Defendants argue Plaintiff’s claim for conversion fails for the same reasons his 2nd and 3rd causes of action for professional malpractice and breach of fiduciary duty failed with respect to Defendants’ alleged failure to turn over his client file. Plaintiff’s claim for conversion also fails because Plaintiff failed to demonstrate damages in Defendants’ transfer of his client file. (Welco Electronics, Inc., 223 Cal.App.4th at pg. 208.)

Accordingly, Defendants’ summary judgment motion is granted. Alternatively, for appeal purposes, Defendants’ motion for summary adjudication as to the 7th cause of action is granted.[1]

[1] Given the Court’s rulings on the underlying causes of action, the Court need not address the request for punitive damages. (Issues 8, 16, 24, 32.)