Judge: Stephen P. Pfahler, Case: 20STCV47167, Date: 2024-03-14 Tentative Ruling

Case Number: 20STCV47167    Hearing Date: March 14, 2024    Dept: 68

Dept. 68

Date: 3-14-24

Case # 20STCV47167

Trial Date: 6-3-24

SUMMARY JUDGMENT/SUMMARY ADJUDICATION

MOVING PARTY: Defendant, Krane & Smith, et al.

RESPONDING PARTY: Plaintiff, Marcia Pellitteri, pro per

RELIEF REQUESTED

Motion for Summary Judgment/Summary Adjudication

·         1^st Cause of Action: Negligence (Legal Malpractice)

·         2^nd Cause of Action: Breach of Fiduciary Duty

·         3^rd Cause of Action: Breach of Contract

SUMMARY OF ACTION

Plaintiffs Marcia Pellitteri and Progressive Consulting Services, Inc. allege entry into a voidable contingency fee agreement with defendants Krane & Smith and Jeremy Smith for representation in Pellitteri v. Wellquest, BC490541, regarding an alleged breached royalty payment contract. Plaintiffs maintain Defendants failed to provide a countersigned copy, and also contained an improper provision regarding potentially incurred attorney fees by Defendants. Plaintiffs also allege Defendants failed to disclose the potential for prevailing party attorney fees by Wellquest.

In October 2017, the court granted the motion for summary judgment of Wellquest, and subsequently prevailed on a motion for attorney fees awarding over $1.3 million. A subsequent appeal affirmed the trial court rulings. Following the appeal, Wellquest was awarded an additional $200,000 in attorney fees. Plaintiff alleges Defendants negligently represented their clients. On December 9, 2020, Plaintiff filed a complaint for Negligence (Legal Malpractice), Breach of Fiduciary Duty, and Breach of Contract.

On October 13, 2022, the court ordered Progressive Consulting Services, Inc., a Nevada corporation, to post an undertaking within 45 days of the order. On December 21, 2022, due the failure to comply with the order to post a bond, the court dismissed  Progressive Consulting Services, Inc.

RULING: Continued.

Request for Judicial Notice in Reply: Granted.

·         The court takes judicial notice of other courts orders, but declines to take notice for the truth of any matter asserted in any item. (Kilroy v. State of California (2004) 119 Cal.App.4th 140, 147-148; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.) The order or transcript was never published, and therefore not citable for any reference. (Cal. Rules of Court, rule 8.1115(a); Rittiman v. Public Utilities Com. (2022) 80 Cal.App.5th 1018, 1043 (footnote 18).)

·         The court takes judicial notice of the existence of the filed pleadings, but not the content.

Defendants Krane & Smith and Jeremy Smith move for summary judgment, or in the alternative summary adjudication on the entire complaint for Negligence (Legal Malpractice), Breach of Fiduciary Duty, and Breach of Contract. Defendants contend the entire complaint fails on grounds of causation: Wellquest recovered against Pelliterri due to the lack of a valid personal claim against Wellquest, rather than Defendants’ representation of Pellitteri. Pellitteri was unable to establish the assignment of rights from Progressive Consulting Services, Inc. to Pellitteri, thereby rendering the claim untenable. Defendants otherwise never charged Plaintiff with any fees or costs. Plaintiff, in pro per, requests a continuance of the hearing in order to allow Plaintiff more time to retain new counsel. Defendants in reply document the lack of any substantive opposition, and maintain the request for continuance is “defective.” Defendants describe the latest request as part of a series of “abhorrent” conduct, including being a party in over 20 lawsuits and multiple discovery monetary sanctions orders.

The court reviews the relevant history of the action for purposes of considering the request. The complaint was filed on December 9, 2020. On September 21, 2022, the court entered the stipulation of the parties to continue the trial from January 9, 2023 to August 4, 2023. On October 13, 2022, the court ordered Progressive Consulting Services, Inc., a Nevada corporation, to post an undertaking within 45 days of the order. On December 21, 2022, due the failure to comply with the order to post a bond, the court dismissed  Progressive Consulting Services, Inc. On May 22, 2023, the court entered a second stipulation to continue the trial from August 14, 2023, to January 8, 2024. On September 19, 2023, Pelliteri executed a substation of attorney, thereby appearing in pro per in the action. On November 11, 2023, the court entered the third stipulation of the parties to continue the trial from January 8, 2024, to June 3, 2024.

Plaintiff concedes that the substitution was made in September 2023, but prior to the substitution was hospitalized with a Covid-19 infection in April 2023. Plaintiff slowly recovered, then underwent surgery in December 2023. Plaintiff represents to locating new counsel, but represents the new attorney requests at least 60 days to prepare an opposition to the motion for summary judgment/summary adjudication. Plaintiff requests a hearing date in “mid-May 2024.”

The court finds the request to continue the motion sufficiently supported in that the entire missing substantive opposition, due to the lack of current counsel and realization of the inability to sufficiently respond in pro per, constitutes the basis for relief. (Code Civ. Proc., § 437c, subd. (h); Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 532; Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 420.)

The subject motion constitutes the first review of the action following reassignment. The court imposed new setting limits upon the assumption of the courtroom. The Court therefore continues the hearing on this motion to June 10, 2024, 2024 at 8:30 a.m.  The Court notes that this is the very first available date for a summary judgment motion.  There shall be no further continuances of this hearing. Moving defendant is ordered to file an amended notice of hearing reflecting the new hearing date within 10 days from todays’ date.

Plaintiff’s opposition and defendants’ reply, if any, shall be filed pursuant to regular Code of Civil Procedure notice governing said motions, including Section 437c(a).

The case is now four years old, but time remains before the five-year failure to prosecute deadline accrues. Given the representation of new counsel, rather than set the motion inside the 30-day cutoff during an impacted calendar period, the court also continues the trial date to July 29, 2024 at 8:30 a.m. and the FSC to July 18, 2024 at 8:30 a.m. (See Code Civ. Proc., § 437c, subd. (h); Levingston v. Kaiser Foundation Health Plan, Inc. (2018) 26 Cal.App.5th 309, 315 accord Hamilton v. Orange County Sheriff's Dept. (2017) 8 Cal.App.5th 759, 765.) f the hearing.

Plaintiff is ordered to file a substitution of counsel with the court. No more continuances of the hearing date or trial will be granted.

Moving party to give notice.