Judge: Ronald F. Frank, Case: 21TRCV00651, Date: 2024-07-19 Tentative Ruling
Case Number: 21TRCV00651 Hearing Date: July 19, 2024 Dept: 8
Tentative Ruling¿
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HEARING DATE: July 19, 2024
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CASE NUMBER: 21TRCV00651
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CASE NAME: Martorell Law APC v. Evgeny Afineevsky, et
al.
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MOVING PARTY: Plaintiff, Martorell Law APC
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RESPONDING PARTY: Defendant, Evgeny Afineevsky
TRIAL DATE: August 5, 2024
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MOTION:¿ (1) By Plaintiff: Motion for Summary
Judgment
(2) By Defendant: ex
parte application to Continue the August 5, 2024 Trial
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Tentative Rulings: (1) Motion for Summary Judgment
is DENIED. Triable issues of facts
material to the reasonableness of fees and the defense of quality of the
representation preclude summary judgment
(2) The ex parte
application in tentatively denied, or would be granted only for a short period
of time sufficient to permit defense counsel to review the remaining 4/5 of the
belatedly produced documents. The
Application indicates the Plaintiff’s failure to provide its work product until
the eve of trial has been ongoing for over a year, and that Defendant elected
to pursue a strategy of relying on that failure to seek exclusion of evidence
at trial rather than other remedies.
Defendant did not seek a motion to compel further production, or a
motion in limine, or file objections to evidence submitted in support of the
pending MSJ, or even seek to continue the hearing on the pending MSJ to allow
completion of discovery. The parties
reported to the Court in early May that the mediation was not successful, yet
this issue of a failure to produce documents requested over a year ago was only
first brought to the Court’s attention in Defendant’s July 3, 2024 Separate
Statement.
I. BACKGROUND¿¿
A. Factual¿¿
On September 3, 2021, Plaintiff, Martorell Law APC
(“Plaintiff”) filed an action against Defendant including Evgeny Afineevsky,
Pray for Ukraine Production, LLC, and DOES 1 through 100 arising out a claim of
failure to pay for Plaintiff’s legal services rendered in the representation of
the Defendants. The suit alleges causes
of action for: (1) Breach of Contract; (2) Account Stated; (3) Open Book
Account; and (4) Reasonable Value of Services Rendered.
Now, Plaintiff files a motion for
summary judgment, or in the alternative, summary adjudication of the following
issues:
1. Issue
No. 1: As alleged against Evgeny Afineevsky and Pray for Ukraine Production
LLC, Plaintiff’s First Cause of Action, Breach of Contract, succeeds as a
matter of law because Defendants did not uphold their obligations.
2. Issue
No. 2: As alleged against Evgeny Afineevsky and Pray for Ukraine Production
LLC, Plaintiff’s Second Cause of Action, Common Count of Account Stated,
succeeds as a matter of law because Plaintiff Martorell Law’s assignor upheld
its obligations to submit billing statements to Defendants, but Defendants have
not paid the billing statements, despite stating they would do so.
3. Issue
No. 3: As alleged against Evgeny Afineevsky and Pray for Ukraine Production
LLC, Plaintiff’s Third Cause of Action, Common Count for Open Book Account,
succeeds as a matter of law because Plaintiff Martorell Law’s assignor
maintained a record of the debts owed to its assignee.
4. Issue
No. 4: As alleged against Evgeny Afineevsky and Pray for Ukraine
Production, LLC, Plaintiff’s Fourth Cause of Action, Reasonable Value of
Service Rendered (Quantum Meruit), succeeds as a matter of law because
Plaintiff Martorell Law’s assignor performed the work under the attorney-client
relationship and Defendants retained the benefit of those services.
B. Procedural¿¿
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On April 2, 2024, Plaintiff
filed a motion for summary judgment, or in the alternative, summary
adjudication. On July 3, 2024, Defendant, Evgeny Afineevsky filed an opposition
brief and declarations. On July 12, 2024, Plaintiff filed a reply brief with a
new declaration and new exhibits not included in the original moving papers.
II. EVIDENTIARY OBJECTIONS
Overrule: all.
Sustain: none.
III. ANALYSIS¿
A. 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.) CCP Section 437(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 claim as framed by the
complaint, the defendant moving for summary judgment must satisfy the initial
burden of proof by presenting facts to negate an essential element, or to
establish a defense. (CCP § 437c(p)(2); 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.)
B. Discussion
Preliminarily,
this Court notes that in opposition, Defendants have brought an issue of
Plaintiff’s standing to sue. First, Defendant argues that Bordin Martorell LLO
was the original creditor of the alleged debt Plaintiff is now seeking to
enforce. Defendants assert that Plaintiff has not provided a single piece of
documentary evidence establishing an assignment of rights from BM LLP. Defendants
contend that in discovery, they asked for such proof, but to date, Plaintiff
has provided zero documentation. Plaintiff only includes, in his declaration,
that his “former law firm, BM LLP, assigned its rights and interests associated
with the Lawsuit, including rights and interests to any past due bills, to
[his] current law firm, Martorell Law APC. (Martorell Decl., ¶ 7.) The Reply
papers provide documentary proof of the assignment to Plaintiff, but that proof
was not included in the moving papers.
The Court’s practice is to consider new evidence submitted at the reply
phase and to allow the opposing party to file a sur-reply responding to that
new matter. But as discussed below, even
if the Court were to reject the standing argument because of the evidence first
submitted at the reply phase, there are other grounds for the Court to deny the
motion which would render unnecessary a sur-reply and continued MSJ hearing.
Here,
Plaintiff argues that it established a contract was formed between Defendants
and Bordin Martorell LLP (“BM LLP”). Plaintiff argues that on July 19, 2017, BM
LLP and Defendants, Evgeny Afineevsky and Pray for Ukraine Production, LLC
entered into a written fee agreement in Los Angeles, California, whereby BM LLP
entered into a written fee agreement in Los Angeles, California whereby BM LLP
agreed to act as Defendants’ legal representative in the lawsuit. (Martorell
Decl., ¶ 2.) Plaintiff contends that the written free agreement included a
$10,000 retainer deposit, which Defendants paid on July 18, 2017. (Martorell
Decl., ¶2.) On July 19, 2017, Plaintiff asserts it began legal services.
(Martorell Decl., ¶ 2.) Plaintiff contends that among the legal services
involved in the subject lawsuit, it drafted a motion to dismiss based on forum non
conveniens (that Defendants chose not to file) and analyzing the same, choice
of law analysis, retention of and communication with additional attorneys,
communications with various potential witnesses, a pro hac vice application,
meeting and conferring with opposing counsel, drafting discovery requests,
responding to discovery requests, tens of phone calls, drafting motions to
quash, drafting and analyzing benefit of motion for security, drafting a motion
for sanctions, drafting a motion for summary judgment, reviewing of large
amounts of evidence, and document production. (Martorell Decl., ¶ 3.)
Further, Plaintiff asserts that it has established that
Defendants failed to uphold their obligations on the basis of the fee
arrangement. Pursuant to the work performed and the terms of the fee
arrangement, BM LLP sent two billing statements to Defendants’ associate with
an outstanding bill of approximately $57,836.54. (Martorell Decl., ¶ 5.)
Plaintiff contends that the first billing statement was sent on or around
September 12, 2017, and pursuant to the agreement, the payments were to be due
within fifteen (15) days of mailing of BM LLP’s statement. (Martorell Decl., ¶
2.) Plaintiff further asserts that Defendants agreed to pay the outstanding
legal fees, but that to this day, Defendants have not paid the outstanding
legal fees. (Martorell Decl., ¶ 6.) Based
on these facts, Plaintiff argues that this Court can and should grant summary
judgment as to each of the four causes of action.
In opposition, Defendants correctly point out that
Plaintiff has failed to show that the facts are undisputed on its causes of action.
For example, Defendants dispute that there was a meeting of the minds as to the
amount owed, that there is a dispute as to the duration of the representation, that
Plaintiff failed to investigate insurance coverage or to earlier tender the
defense of the underlying action to Defendant’s production company’s errors and
omissions policy carrier. See 7/3/24 Separate Statement UMFs 4, 5, 10. Defendants dispute Plaintiff’s standing
because no corroboration was submitted with the moving papers of the claimed
assignment from BM LLP to Plaintiff. See
7/3/24 Sep. Statement UMF 8. The
Opposition raises a dispute as to its defense of overbilling for work that was
never used or filed to advance the interests of its clients. Furthermore, Defendants
argue that Plaintiff filed no substantive pleadings in the case while
representing Defendant and its work was not used by Defendants’ subsequent
attorneys. Defendants have provided the declaration of counsel Tarasov
indicating that such work was not used nor was it instrumental in the ultimate
outcomes of the case.
While
Mr. Martorell addresses a number of these issues in his reply declaration and
its attached exhibits, the conflict between his declaration and that of his
former co-counsel Mr. Tarasov by itself demonstrates that the trier of fact
will need to resolve the disputed issues of reasonableness of billings, the
claimed failure to earlier tender a defense to an E&O carrier and at whose
feet lays the blame for that, the affirmative defense of excuse or of quality
of the representation, and other matters.
IV. CONCLUSION¿¿
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For the foregoing reasons, Plaintiff’s
Motion for Summary Judgment is DENIED.
Defendants are ordered to
provide notice.