Judge: Robert B. Broadbelt, Case: 19STCV44103, Date: 2023-11-16 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

Case Number: 19STCV44103    Hearing Date: January 18, 2024    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Defendants Jacob Emrani and Law Offices of Jacob Emrani

RESPONDING PARTIES:     Plaintiffs Karol Vladovich and Law Offices of Mark B. Plummer, PC

Motion for Summary Judgment or, in the Alternative, Summary Adjudication

The court considered the moving, opposition, and reply papers filed in connection with this motion.

LEGAL STANDARD

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (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.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant or cross-defendant moving for summary judgment or summary adjudication “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 . . . cannot be established, or that there is a complete defense to the cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  “Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  “If the plaintiff cannot do so, summary judgment should be granted.”  (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)  “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Id. at p. 467; Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

Defendants Jacob Emrani (“Emrani”) and Law Offices of Jacob Emrani (“Counsel”) (collectively, “Defendants”)[1] move the court for an order granting summary judgment in their favor and against plaintiffs Karol Vladovich (“Vladovich”) and Law Offices of Mark B. Plummer, PC (“Plummer”) (collectively, “Plaintiffs”) on their Complaint.

1.     Motion for Summary Judgment as to Counsel

The court denies Counsel’s motion for summary judgment because Counsel did not address, in its moving papers, all of the causes of action alleged against it in Plaintiffs’ Complaint.

Plaintiffs filed their Complaint on August 19, 2019, alleging four causes of action for      (1) conversion, (2) legal malpractice, (3) declaratory relief, and (4) unfair business practices.  Counsel did not address the third cause of action for declaratory relief in its motion.[2]  Thus, the court finds that, because Counsel has not addressed every cause of action alleged against it in Plaintiffs’ Complaint, Counsel has not met its burden to show that it is entitled to judgment as a matter of law.  (Code Civ. Proc., § 437c, subd. (c).)  The court therefore denies Counsel’s motion for summary judgment.

The court acknowledges that Defendants have alternatively attempted to request summary adjudication as to Plaintiffs’ first, second, and fourth causes of action.  However, the court finds that the notice of motion is defective and therefore finds that Defendants did not properly request summary adjudication as to those causes of action in the alternative.

“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 material facts.”  (Cal. Rules of Ct., rule 3.1350, subd. (b).)  Defendants’ notice of motion states only that they seek, “in the alternative, summary adjudication.”  (Notice of Mot., p. 2:1-6.)  The notice does not state (1) the causes of action that Defendants seek to adjudicate, or (2) the affirmative defenses that Defendants contend bars Plaintiffs’ causes of action.  Thus, the court finds that Defendants’ notice of motion is defective, and therefore does not rule on whether Defendants have met their burden to show that they are entitled to an order granting summary adjudication in their favor and against Plaintiffs on the first, second, or fourth causes of action.

Because the court has concluded, as set forth above, that (1) Counsel did not address all the causes of action alleged against it in Plaintiffs’ Complaint, and (2) Defendants’ request for summary adjudication in their notice of motion is defective, the court denies Counsel’s motion in its entirety.

2.     Motion for Summary Judgment as to Emrani

The court finds that (1) Emrani has not met his burden to show that the first cause of action for conversion has no merit, and therefore (2) Emrani has not shown that he is entitled to judgment on all the causes of action alleged against him in Plaintiffs’ Complaint as a matter of law.  (Code Civ. Proc., § 437c, subd. (h); Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1527 [“To prevail on a summary judgment motion that does not request summary adjudication in the alternative, the defendant must show conclusively that all of the plaintiff’s causes of action or legal theories fail as a matter of law”].)

“‘ “ ‘Conversion is the wrongful exercise of dominion over the property of another.  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 . . . .’ ” ’”  (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.)

First, it appears that Emrani contends that Plaintiffs cannot establish the element of conversion of Plaintiffs’ property by a wrongful act or disposition of property rights because Defendants requested that Vladovich’s settlement be issued via two checks: (1) one to Vladovich and her attorney, and (2) another to Defendants for the disputed attorney’s fees.  (Mot., pp. 3:17-20, 6:3-5.)

The court finds that this evidence and argument is insufficient to show that Plaintiffs cannot establish Emrani’s conversion of their property.  Plaintiffs have based their cause of action for conversion on the factual assertion that Defendants falsely represented that they had a lien for 100 percent of the fees on plaintiff Vladovich’s underlying claim despite having never been retained.  (Def. Exs. 7 and 9, Plaintiffs’ Responses to Special Interrogatory No. 6.)  In their Complaint, Plaintiffs allege that Defendants did not have a valid lien on the ground that the contingency fee agreement between Vladovich and Defendants did not comply with Business and Professions Code section 6147 because (1) the agreement was not signed by an attorney, and (2) Defendants did not return a fully executed copy of the contingency fee agreement to plaintiff Vladovich.  (Compl., ¶¶ 10-11.)  Thus, Plaintiffs have based this cause of action on the theory that, because Defendants did not comply with Business and Professions Code section 6147, no contingency fee agreement was created and therefore Defendants’ representations that they had a lien on the underlying settlement and were owed money (1) delayed Vladovich’s receipt of all funds owed to her, and (2) constitutes conversion of Plaintiffs’ property.

The court acknowledges that Emrani has presented the June 19, 2019 letter that he sent to plaintiff Vladovich, in which Emrani (1) stated that he did not intend to keep her from being paid, and (2) informed Vladovich that he spoke to her attorney, Plummer, and requested that he obtain two checks from the settlement, one of which would be paid immediately to Vladovich, while the other would represent the disputed attorney’s fees.  (Def. Ex. 5, pp. 1, 2.)  This evidence, however, does not establish that Defendants—in asserting their lien and requesting $4,444 in attorney’s fees—did not constitute an exercise of dominion over Plaintiffs’ property (the settlement funds) merely because Emrani suggested that the partial payment to Vladovich not be delayed.  (Def. Material Fact No 8 [“$4,444 is the amount Defendants claim in fees”]; Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 451-452 [“It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use”].)  Thus, because the actionable conversion was the false representation that Defendants were entitled to a certain portion of the funds—not an intent to delay Plaintiffs’ recovery—this evidence does not show that Plaintiffs cannot establish the interference with or assumption of control over Plaintiffs’ property. 

Second, to the extent that Emrani has argued that Defendants’ attorney lien is valid and therefore does not constitute conversion, the court finds that Emrani has not met his burden to present sufficient argument and evidence in support of that contention.

As set forth above, Plaintiffs have alleged that Defendants’ attorney’s lien was invalid because the contingency fee agreement violated Business and Professions Code section 6147.  (Compl., ¶¶ 18 [alleging that a lien can be created only by a contract and that Defendants knew that there was no contract], 10-11.)  

“The parties to a retainer agreement can create a lien in favor of the attorney upon the proceeds of a client’s prospective recovery.  [Citation.]  The form and content of attorney fee agreements are regulated by statute.”  (O&C Creditors Group, LLC v. Stephens & Stephens XII, LLC (2019) 42 Cal.App.5th 546, 574 [internal citation omitted].)  Pursuant to Business and Professions Code section 6147, “[a]n attorney who contracts to represent a client on a contingency fee basis shall, at the time the contract is entered into, provide a duplicate copy of the contract, signed by both the attorney and the client, . . . to the plaintiff. . . .”  (Bus. & Prof. Code, § 6147, subd. (a).)  Failure to comply with this requirement “renders the agreement voidable at the option of the plaintiff, and the attorney shall thereupon be entitled to collect a reasonable fee.”  (Bus. & Prof. Code, § 6147, subd. (b).)

Plaintiffs have alleged that the contingency fee agreement was invalid and violated Business and Professions Code section 6147 because (1) it was not signed by any attorney, and (2) a fully signed copy was not returned to Vladovich.  (Compl., ¶¶ 10-11.)  The court acknowledges that Defendants have submitted the “Attorney-Client Contingency Fee Agreement” which purports to bear the signatures of plaintiff Vladovich and Emrani.  (Def. Ex. 1, Fee Agreement, pp. 1, 4.)  However, Defendants did not address, in their memorandum of points and authorities or in their separate statement, the allegation that Defendants did not return to Vladovich, “at the time the [Attorney-Client Contingency Fee Agreement] was entered into,    . . . a duplicate copy of the contract, signed by both” Vladovich and Emrani.  (Bus. & Prof. Code, § 6147, subd. (a).)  Thus, the court finds that Emrani has not met his burden to show that the Attorney-Client Contingency Fee Agreement did not violate Business and Professions Code section 6147 since he did not present evidence showing that he provided to Vladovich a copy of the Attorney-Client Contingency Fee Agreement signed by both himself and Vladovich.[3]

            The court therefore finds that defendant Emrani has not met his burden of showing that the first cause of action for conversion has no merit and therefore has not shown that he is entitled to judgment on all of the causes of action alleged against him in Plaintiffs’ Complaint as a matter of law.

The court therefore denies defendant Emrani’s motion for summary judgment.

ORDER

The court denies defendants Jacob Emrani and Law Offices of Jacob Emrani’s motion for summary judgment or, in the alternative, summary adjudication on plaintiffs Karol Vladovich and Law Offices of Mark B. Plummer, PC’s Complaint.

The court orders plaintiffs Karol Vladovich and Law Offices of Mark B. Plummer, PC to give notice of this ruling.

IT IS SO ORDERED.

DATED:  January 18, 2024

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court