Judge Ralph C. Hofer, Case Number: 22AHCV01228, Date: 2025-03-21 Tentative Ruling

Plaintiff James S. Dromi, Esq. alleges that in May of 2019 plaintiff and defendant Tetsuro Sugiyami entered into a written contract pursuant to which plaintiff agreed to provide legal services to defendant. Plaintiff alleges that defendant did in fact provide legal services to plaintiff in full compliance with the contract, as a result of which a criminal DUI case that was filed against defendant was dismissed with prejudice.

The complaint alleges that defendant agreed to pay plaintiff an hourly rate for plaintiff’s services and an hourly rate for plaintiff’s staff’s services and to pay all costs associated with defendant’s case, but plaintiff has not paid for all services rendered. The complaint further alleges that the contract between the parties provides that if a client’s balance due amount is not paid within 15 days of invoicing, the account will be assessed interest at the rate of 10 per cent per annum.

The complaint alleges that as of July 13, 2022, the outstanding balance on the account with defendant was approximately $45,668.86, that plaintiff has made repeated demands upon defendant to pay the outstanding balance, and that defendant has refused to pay the balance or any part thereof.

Defendant Sugiyama has filed a cross-complaint against plaintiff Dromi as cross-defendant, alleging that in March of 2019, Sugiyama was pulled over by the San Gabriel Police Department (SGPD) in response to a call by a concerned citizen that Sugiyama had been driving his vehicle erratically. Believing Sugiyama had been driving under the influence of alcohol or drugs, SGPD officers ordered Sugiyama to submit to a series of Field Sobriety Tests (FSTs). Sugiyama complied and submitted to the FSTs. The SGPD then alleged that Sugiyama refused to submit to a Blood-Alcohol Concentration (BAC) test, and further alleged that because Sugiyama had blood-shot eyes, had an odor of an alcoholic beverage, had an unsteady gait, and almost fell down while performing an FST, Sugiyama was arrested for driving under the influence of alcohol. The SGPD further alleged that after admonishing Sugiyama of the legal effect of refusing to submit to a BAC test, Sugiyama persisted in refusing to submit to a BAC test. Immediately thereafter, Sugiyama was transported by the SGPD to the San Gabriel Jail, was cited for a misdemeanor violation of VC §23152(A) and released from custody the next day.

The cross-complaint alleges that in April of 2019, Sugiyama was formally charged with a misdemeanor violation of VC §23152(A) plus a prior violation of VC§23152(A) within the last 10 years. At the subsequent arraignment Sugiyama appeared by way of counsel, cross-defendant Dromi, and entered a plea of not guilty.

The cross-complaint alleges that it was Sugiyama’s defense that he was not driving while under the influence of alcohol, that he had not consumed any alcohol on the day of the incident, and that he had never refused to submit to a BAC test, but that he had suffered from a heat stroke while playing baseball prior to driving, that the heat stroke caused him to become disoriented, and that he had been driving erratically and was unable to adequately perform the FSTs because of his disoriented state as a result of the heat stroke.

Sugiyama alleged because of his disoriented mental state he was unaware the SGPD had requested he submit to a BAC test nor was he aware that the SGPD had admonished him of the legal effects of refusing to submit to a BAC test. Sugiyama also alleged that he was more susceptible to having heat strokes and passing out than the average person because of a rare illness called vasovagal syncope.

The cross-complaint alleges that cross-complainant consulted with Dromi, who represented to him that it was Dromi’s usual practice to give prospective clients who are charged with DUIs a choice of whether to retain Dromi on a fixed or hourly rate attorney fee agreement or on a flat fee basis. Dromi further represented to Sugiyama that based on the facts in his case, Dromi believed Sugiyama would overpay for his services under a fixed rate attorney fee agreement and encouraged Sugiyama to execute an hourly rate attorney fee agreement. Dromi further represented to Sugiyama that his fixed rate attorney fee agreement was a minimum of $6,000. The cross-complaint alleges that in May of 2019, in reliance on Dromi’s advice, Sugiyama entered into an hourly rate attorney fee agreement with Dromi for Dromi to provide legal services in connection with preparing and perfecting Sugiyama’s legal defense in his DUI case.

The cross-complaint alleges that at the time of contracting, cross-defendant Dromi falsely represented that because Sugiyama’s case was simple, Sugiyama would pay more for his attorney’s fees under a fixed rate agreement than an hourly agreement, when Dromi knew the statement to be false, that Sugiyama reasonably relied on the representation and was induced thereby to enter the hourly rate attorney fee agreement and as a result cross-complainant has suffered damages.

The cross-complaint also alleges that the during the course of cross-defendant Dromi’s representation of cross-complainant, including during a critical administrative proceeding, Dromi mishandled the perfection of Sugiyama’s defense to the DUI case by failing to adequately and timely conduct discovery and bring discovery motions, failing to use reasonable diligence in obtaining and/or preserving exculpatory evidence, failing to adequately investigate alternative methods of introducing for admission exculpatory evidence already in Dromi's possession, failing to make good faith efforts to negate the prosecution's best evidence, and failing to diligently investigate the nature and quality of testimony offered by Sugiyama’s witnesses that supported Sugiyama’s defense.

Plaintiff James Dromi seeks summary judgment of his complaint brought against defendant Tetsuro Sugiyama, arguing that plaintiff can establish each element of his claim for breach of the fully executed attorney client fee retainer agreement contract, and the common counts asserted for the money owed to plaintiff, which defendant cannot refute.

CCP §437c(b) sets forth the specific requirements for opposition papers, including the requirement of the filing of a separate statement “that responds to each of the material facts contended by the moving party to be undisputed.” This subdivision provides: “Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” CCP §437c(b)(3).

The only opposition memorandum in the file is entitled, “Opposition of Cross-Complainant Tetsuro Sugiyama to Motion for Summary Judgment, or in the Alternative, Summary Adjudication, of Cross-Defendant James S. Dromi,” and states, “Cross-Complainant, Tetsuro Sugiyama (‘Cross-Complainant’ or ‘Sugiyama’) hereby submits his Opposition to the Motion for Summary Judgment/Summary Adjudication of Cross-Defendant, James S. Dromi (‘Cross-Defendant’ or ‘Dromi’). These pleadings apply to an entirely separate motion.

Likewise, the only separate statement in the file is entitled, “Cross-complainant, Testsuro Sugiyama’s Separate Statement in Opposition to Cross-Defendant, James S. Dromi’s Motion for Summary Judgment,” and states that “Cross-Complainant, Tetsuro Sugiyama (‘Cross-Complainant’ or ‘Sugiyama’) hereby submits his separate statement of disputed material facts in opposition to the motion for summary judgment of Cross-Defendant, James S. Dromi (‘Cross-Defendant’ or ‘Dromi’),” which is an entirely separate motion. The separate statement does not address the critical undisputed facts raised in connection with this motion at, among other junctures, UMF Nos. 16- 35, 39-41.

Under CCP § 437(o) a plaintiff “has met his...burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff... has met that burden, the burden shifts to the defendant... 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 claim for breach of contract, plaintiff must establish the following elements: The formation of a contract; plaintiff’s performance or excuse for nonperformance; defendant’s breach; and damage to plaintiff. Walsh v. Standart (1917) 174 Cal. 807.

Plaintiff here submits evidence that the parties entered into a written Attorney-Client Fee Agreement (Hourly Rate) (Agreement), executed by both parties, and that defendant Sugiyama signed and dated the Agreement at every page. [UMF No. 17, and evidence cited, Dromi Decl., para. 6, Ex. B]. The Agreement expressly requires, “Client shall make any and all payments required by this agreement.” [Ex. B, para. 7].

Plaintiff also submits evidence that plaintiff performed plaintiff’s obligations under the Agreement, and also fronted necessary expenses. [UMF Nos. 18-31, 40, and evidence cited, Barnett Decl., paras. 6-16, Dromi Decl., paras. 5-6, 8-20].

Plaintiff also establishes that despite plaintiff’s performance in accordance with the Agreement, defendant has failed to pay his bill, and there is now due and owing to plaintiff by defendant the sum of $45,668.86. [UMF No. 41, and evidence cited, Dromi Decl., para. 24].

“24. Despite the very favorable result that I was able to achieve, and all of my efforts and costs that I fronted, Mr. Sugiyama decided NOT to pay his bill. Accordingly, I exercised my right to pursue the outstanding fees owed in addition to previously waived fees and interest per the fully executed agreement between Mr. Sugiyama and I. The total amount owed now is $45,668.86. My Billing Statements are annexed as EXHIBIT M.”

Plaintiff has accordingly met plaintiff’s burden of establishing entitlement to judgment on its breach of contract claim in the sum sought. The burden then shifts to defendant to show that a triable issue exists as to the cause of action or a defense thereto. CCP section 437c(o).

Defendant has failed to file timely opposition to the motion, or refute the facts and evidence set forth by plaintiff in the separate statement, so defendant has failed to meet this burden. Therefore summary judgment is granted in the sum sought.

Cross-defendant James S. Dromi, Esq. seeks an order granting summary judgment of the entire cross-complaint brought by Tetsuro Sugiyama, arguing that the cross-complaint has no merit, as cross-complainant cannot demonstrate triable issues of material fact to support each of his causes of action.

The Rule provides that ex parte application may be made to file a longer memo. CRC Rule 3.1113(e). Under subdivision (g), the statute states the effect of filing an oversized memorandum: “A memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.”

The court in its discretion will refuse to consider the moving memorandum pursuant to CRC Rule 3.1300 (d). Without any legal argument or factual analysis in support of the motion, the motion cannot be granted by the court, and it is denied.

Under CCP § 437c(p)(2) a cross-defendant “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the …cross-defendant has met that burden, the burden shifts to the …cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.”

The motion is brought as a motion for summary judgment, with no request in the notice of motion for summary adjudication of issues, or of any of the four causes of action separately. Specifically, cross-defendant seeks in the notice, “an Order granting summary judgment as the entire Cross-Complaint by Cross-Plaintiff, TETSURO SUGIYAMA.” There is no request in the notice of motion for any alternative relief based on summary adjudication.

“If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed facts.”

Accordingly, it is held that when the notice of motion seeks only summary judgment, the presence of any triable issue requires denial of the motion; a court may not summarily adjudicate claims or defenses unless requested in the notice of motion. Homestead Savings v. Superior Court (1986) 179 Cal. App.3d 494, 498. Where only certain claims or defenses are raised, the court has no power to adjudicate others. Maryland Cas. Co. v. Reeder (1990) 221 Cal.App.3d 961, 974.

This circumstance results in a posture for this motion that the motion must be denied if as to any one of the four causes of action cross-defendant has failed to establish entitlement to summary judgment or triable issues of fact are raised with respect to any one of the causes of action pending in the cross-complaint.

“For the sake of brevity (after approximately 30 pages), summary adjudication for the Unfair Business Practices (Bus. & Prof. Code §17200 et seq.) cause of action should be dismissed for the same reasons listed in Section VI. UMF No. 28.”

This showing appears wholly insufficient to establish that cross-complainant will be unable to establish one or more elements of his claim. The motion fails to set forth the elements of such a claim, or explain why cross-defendant lacks support for one or more of them.

Even considering section VI, which is directed briefly to the breach of covenant of good faith and fair dealing cause of action, the argument addresses the billing practices complained of, but does not address all theories of the unfair business practices claim, including the alleged misrepresentations to cross-complainant that a lesser amount of attorney’s fees would ultimately be due than that which Sugiyama would be liable for under the Agreement. [See Cross-Complaint, paras. 18, 33]. The moving papers accordingly have failed to meet any initial burden to establish cross-complainant will be unable to establish this cause of action. Hence, the motion as to this cause of action fails.

Even if the burden had shifted, cross-complainant in opposition submits evidence raising triable issues, including alleged conduct by Dromi in representing that Dromi would be representing Sugiyama in a malicious prosecution action against the government to recover all sums paid over the standard flat fee and then abandoning the client on pursuing such an action. [See Response to UMF Nos. 55, 56, and evidence cited, Sugiyama Decl., paras. 28, 29, 48, 50; See also Sugiyama Decl., para. 51]. Triable issues of material fact have been raised.

The court is mindful that the motion makes a compelling argument that the third cause of action for legal malpractice must fail due to cross-complainant’s inability to sufficiently establish that cross-complainant, the client with respect to a criminal action, has been exonerated or can establish actual or factual innocence.

The argument is based in part on Coscia v. McKenna & Cunneo (2001) 25 Cal.4th 1194, in which the California Supreme Court found that the trial court had correctly sustained a demurrer without leave to amend, on the ground plaintiff had failed to show that he was actually innocent by obtaining post-conviction relief:

“[W]e conclude that a plaintiff must obtain postconviction relief in the form of a final disposition of the underlying criminal case for example, by acquittal after retrial, reversal on appeal with directions to dismiss the charges, reversal followed by the People's refusal to continue the prosecution, or a grant of habeas corpus relief as a prerequisite to proving actual innocence in a malpractice action against former criminal defense counsel.”

The court is not persuaded from the current briefing that this requirement would apply to any other cause of action other than the legal malpractice cause of action. In any event, the argument cannot be considered to defeat only the legal malpractice cause of action on this motion due to the failure to request such relief in the notice of motion, discussed above.

However, the court will hear argument whether cross-defendant would be interested in pursuing a second motion for summary judgment, limited to a motion seeking summary adjudication of the third cause of action only, based on the argument arising from the doctrine requiring establishment of actual innocence as argued in the current motion.

“A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.”

Procedurally, defendant has failed to file in opposition to this motion a memorandum of points and authorities or a separate statement, and has therefore failed to comply with the statutory requirement of filing a separate statement addressing each material fact raised in the moving papers. Pursuant to CCP §437c(b(3), the court exercises its discretion to grant the motion.

Substantively, plaintiff has provided undisputed evidence establishing each element of its cause of action for breach of contract, as the undisputed facts offered show that the defendant entered into a written Attorney-Client Fee Agreement (Hourly Rate) with plaintiff, that plaintiff fully performed plaintiff’s obligations under the Attorney-Client Fee Agreement, that defendant has breached his obligations under the Agreement by failing to make the payments required by the Agreement, which has resulted in damages to plaintiff in the amount of $45,668.86. [UMF Nos. 17-31, 40, 41, and evidence cited; Dromi Decl., paras. 5, 6, 8-20, 24; Exs. B, Ex. B. para. 7, Ex. M, pp. 153-182; Barnett Decl., paras. 6-16]. This showing also supports in the alternative the existence of an account stated and money owed pursuant to common counts in the sum evidenced.

Defendant has failed to appropriately raise any defenses to this showing in opposition or to meet defendant’s burden to raise triable issues of material fact. Summary judgment is granted in favor of plaintiff James S. Dromi, Esq. and against defendant Tetsuro Sugiyama in the total sum of $45,668.86.

Procedurally, the memorandum of points and authorities in support of the motion exceeds the page limits permitted for a motion for summary judgment, in violation of CRC Rule 3.1113(d) (“In a summary judgment…motion, no opening…memorandum of points and authorities may exceed 20 pages.”). The court in its discretion, pursuant to CRC Rule 3.1300(d), has disregarded the oversized memorandum, and with no legal or factual analysis before it, denies the motion.

Substantively, the motion is noticed as a motion for summary judgment, seeking in the notice, “an Order granting summary judgment as the entire Cross-Complaint by Cross-Plaintiff, TETSURO SUGIYAMA.” There is no request in the notice of motion for any alternative relief based on summary adjudication. Accordingly, the motion must be denied if the motion fails to establish entitlement to summary judgment if triable issues of fact are raised with respect to any one of the causes of action pending in the cross-complaint. Here, cross-defendant has failed to sufficiently meet the initial burden to defeat the fourth cause of action for unfair business practices, or to defeat the cause of action on all theories alleged. [See Memorandum, p. 29:5-8, Cross-Complaint, paras. 18, 33].

Even if the burden had shifted, cross-complainant in opposition submits evidence raising triable issues, including alleged conduct by cross-defendant Dromi in representing that Dromi would be representing Sugiyama in a malicious prosecution action against the government to recover all sums paid over the standard flat fee and then abandoning the client on those claims. [See Response to UMF Nos. 55, 56, and evidence cited, Sugiyama Decl., paras. 28, 29, 48, 50; See also Sugiyama Decl., para. 51]. Triable issues of material fact to at least one of the four causes of action have been raised, defeating summary judgment.

The motion is denied without prejudice to cross-defendant seeking through the appropriate statutory procedures under CCP section 437c(f)(2) to file a second motion for summary adjudication directed to the third cause of action of the cross-complaint for legal malpractice, based on the absence in this matter of an appropriate showing of actual innocence on the part of cross-complainant.

Please make arrangement in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect offers free audio and video appearances. Department D is now requiring either live or VIDEO appearances, not audio appearances. Please note that in the case of video appearances, ADVANCE REGISTRATION IS REQUIRED.