Judge Ronald F. Frank, Case Number: YC072873, Date: 2024-01-12 Tentative Ruling

Judge: Ronald F. Frank, Case: YC072873, Date: 2024-01-12 Tentative Ruling

Case Number: YC072873 Hearing Date: January 12, 2024 Dept: 8

Tentative Ruling

HEARING DATE: January 12, 2024¿

CASE NUMBER: YC072873

CASE NAME: Anna Mezheritsky v. Dorothy Kovich Klein, et al.

MOVING PARTY: Defendant, Dorothy Kovich Klein and Thomas Kovich

RESPONDING PARTY: Plaintiff, Anna Mezheritsky

TRIAL DATE: Not Set.

MOTION:¿ (1) Defendant’s Motion to Enforce Settlement Agreement and to implicitly amend the Court’s prior order requiring the settlement check to include lienholders on its face

Tentative Rulings: (1) DENIED. The Court required multiple names on the check for very good reasons, which Ms. Redd’s declaration and new lawsuit corroborate. The Motion is predicated on inadmissible hearsay about what the defendants’ insurance companies’ system will or will not allow. The Court will entertain oral argument as to other options to create the court-ordered multiple payee check, including manual typing or handwriting the names of the payees on the check.

I. BACKGROUND¿

A. Factual¿

On September 13, 2023, this Court granted a Motion to Enforce the Settlement agreement the parties agreed upon during mediation. The Court ordered: Dorothy’s attorney, Marc S. Feldman contact the insurance carrier and request a single cashier’s check in the amount of $200,000, to be payable to the Plaintiff Anna Mezheritsky and each of the following lienholders: (1) Harris Law; (2) Redd Law; (3) Robin Bernhoft, M.D.; (4) Los Angeles Superior Court; (5) Medical; and (6) Medicare.

Defendants’ counsel supports the motion with his declaration asserting that that the defendants’ insurance carrier informed their attorney that the request could not be fulfilled because their system does not allow a single check to be payable to seven (7) payees. That assertion about what the insurance company’s system can and cannot do is hearsay, so the motion is supported by inadmissible hearsay. Based on the Hampton Declaration, Defendants request this Court order the settlement check to be payable to Plaintiff, Anna Mezheritsky only, who will then have the sole duty to pay all other lienholders. Defendants have also prayed this Court issue an order protecting Defendants and their attorneys of record from any possible liability to any known of unknown lienholders.

B. Procedural

On September 13, 2023, this Court granted a Motion to Enforce Settlement, and issued an order requiring the inclusion of the names of known lienholders of the settlement check or checks.

After unsuccessful attempts to comply with the Court’s multiple-payee order, Defendants Dorothy Klein and Thomas Kovich have now filed a Motion to Enforce Settlement and for an Order to Pay the Full Settlement Amount to Plaintiff and Protecting Defendants and their Attorneys from any liability to any lienholder. To date, no opposition has been filed, and as has been the case on various other matters where the self-represented Ms. Mezheritsky has not formally responded to the motion but the Court anticipates she may orally raise concerns during the hearing.

While recognizing that she lacks standing to intervene or file an opposition to the Motion to Enforce, on December 14, 2023, LaToya S. Redd, Esq., as a lienholder only, filed a declaration for notice of a lawsuit against defendants and their counsel for infringing attorney lien. On December 29, 2023, LaToya S. Redd filed another declaration in lieu of any opposition to defendants’ motion. Ms. Redd notifies the Court and defendants that she has filed suit in the Stanley Mosk courthouse to enforce her lien rights, and has filed a Notice of Related Case in this matter.

¿II. ANALYSIS

Here, settling defendants seek an order from this Court allowing the $200,000 settlement amount be paid in its entirety to Plaintiff, Anna Mezheritsky, as their insurance carrier purportedly will not allow a single cashier’s check in the amount of $200,000 to be payable to seven (7) different payees. There is no admissible evidence of what the bank for the Defendant’s insurer can or cannot do as the Hampton Declaration’s statement of that asserted fact is hearsay. A motion cannot be granted without admissible evidence supporting its premise. The thrust of the motion is its implicit request that the Court amend its prior order requiring the listing of the lienholders on the settlement draft or drafts. But the Court had very clear reasons for its prior order which are now being corroborated by Plaintiff’s former counsel LaToya Redd. The Court is not inclined to change its reasoning for the multiple payee requirement of its order granting the previous motion to enforce settlement, because doing so would invite the filing of additional lawsuits by lienholders to enforce their lien rights against persons or parties including defense counsel who have knowledge of the liens but who failed to provide for satisfaction of those liens in the settlement.

Although acknowledging that non-party lienholders may not file an opposition, LaToya S. Redd, Esq. (a lienholder and former counsel of record to the Plaintiff here) filed a declaration for notice of a lawsuit against defendants and their counsel for infringing attorney lien and another declaration in lieu of any opposition to defendants’ motion. An attorney’s lien against the prospective recovery of a client upon her claim, to secure the payment of a contingent fee for services to be rendered in connection therewith, may be created by contract. (Weiss v. Marcus (1975) 51 Cal.App.3d 590, 598. Here, based on LaToya’s complaint in her recently filed case, she filed a Notice of Attorney Lien on September 25, 2019. “[A] lien created by . . . written agreement . . . survive[s] plaintiff's discharge, and that such lien entitled plaintiff to recover, out of the proceeds of the settlement, the reasonable value of his services rendered prior to discharge.” (Ibid.)

Here, if the check were to be issued without payment to LaToya, she may sue Plaintiff and the defendants, and potentially their counsel who had notice of the lien, for failing to satisfy former counsel’s attorney fee lien. In Fracasse v. Brent (1972) 6 Cal.3d 784, the California Supreme Court held that an attorney, employed under a contingent fee contract and subsequently discharged prior to the occurrence of the contingency, is entitled to the reasonable value of her services rendered to the time of her discharge. (Fracasse, supra, 6 Cal,3d at 784.) Further, in Marcus, an attorney brought suit against a former client, another attorney, a law firm, and others to recover the reasonable value of legal services prior to the attorney’s dismissal (Marcus, supra, 51 Cal.App.3d at 590.) The parties in Marcus entered into a contingency fee agreement, like the parties here, as well as the client granting, by written agreement, his attorney a lien on all amounts recovered, as security for payment of the fees due to the attorney. (Id. at 594.) The Court in Marcus found that the lien created by the written agreement by the plaintiff attorney and former client survived the attorney’s discharge, and that such lien entitled plaintiff attorney to recover, out of the proceeds of the settlement, the reasonable value of his services rendered prior to discharge. In Siciliano v. Fireman's Fund Ins. Co. (1976) 62 Cal.App.3d 745, the Second District reversed a trial court decision that had sustained a demurrer to a suit by a lienholder former counsel who sued the defendant’s insurance company directly after the insurer failed to account for the former counsel’s attorney lien against the insurer’s payment of a settlement despite its prior notice of the lien.

The Court requests oral argument from Defendants on what other options for releasing the funds would be besides the single payee option presented in Defendant’s moving papers. The Court contemplates many other alternatives, including the manual typing of names on the settlement drafts, hand-writing the names of the payees on the drafts, or negotiation of amounts to be paid to the lienholders in advance. But the Court’s reasoning in requiring the inclusion of multiple payees was for demonstrably good cause and because of the Court’s awareness of Marcus, Fracasse, and Siciliano.