Judge: Walter P. Schwarm, Case: 30-2022-01258583, Date: 2022-08-16 Tentative Ruling
Petitioner’s (Benjamin Arsenian) Motion for Equitable Relief (Motion), filed on 5-31-22 under ROA No. 32, is DENIED.
First, it appears that the court should take this Motion OFF CALENDAR. On June 14, 2022, this court in the related action of Dascanio v. Arsenian (Case No. 30-2022-01257590) granted relief pursuant to Code of Civil Procedure section 386, subdivision (f), which states, “After any such complaint or cross-complaint in interpleader has been filed, the court in which it is filed may enter its order restraining all parties to the action from instituting or further prosecuting any other proceeding in any court in this state affecting the rights and obligations as between the parties to the interpleader until further order of the court.”
The Motion includes essentially the same parties as the related action in which the court issued the above order. Additionally, the Motion seeks orders concerning the settlement for which interpleader has been requested. Consequently, in pursuing this motion, Petitioner is a party to the interpleader, who is prosecuting another proceeding “affecting the rights and obligations as between the parties to the interpleader,” contrary to Code of Civil Procedure section 386, subdivision (f), and the court’s June 14, 2022 order.
Although Petitioner asserts this action does not qualify as an “other proceeding” because this action has been deemed related to the interpleaded action, this argument is unpersuasive. (Petitioner’s Reply (Reply) filed on 8-9-22 under ROA No. 74; 4:2-6). Despite being related, this action seeks relief separate and apart from the request for interpleader.
While the motion was appropriately filed before the issuance of any relevant order, consistent with the June 14, 2022 order issued in Dascanio v. Arsenian (Case No. 2022-01257590), it appears that the court should take this Motion OFF CALENDAR.
Assuming that the court has authority to hear the Motion, the court will address the merits of the Motion.
Plaintiff filed a Petition for Writ of
Mandate and Complaint for Declaratory and Injunctive Relief (Petition) on
5-6-22 under ROA No. 2. The Petition seeks a
“. . . writ of mandate pursuant to Code of Civil Procedure section 1085
directing Defendant to endorse the settlement check so it can be properly
deposited in Plaintiff’s attorney trust account and disbursements to the
client and medical lienholders can be made; [¶] 3. In the alternative, this
Court issue an order that the settlement check be deposited in Plaintiff’s
attorney trust account and disbursements to the client and medical lienholders
can be made . . . .” (Petition; 6:5-11 (See also, Motion; 6:12-20.).)
The Motion requests a preliminary injunction for the relief sought in the Petition. The Motion states, “No money damages or other legal remedy could adequately remedy the harm and hardship caused by the Defendant's refusal to allow the settlement draft to be deposited and the funds be disbursed to the client and medical lien holders. Absent intervention by the Court, Plaintiff is forced to violate the Professional Rules of conduct and the client is unable to obtain medical care and financially support himself. A party cannot claim any hardship based on its own disregard of legal duties. The Plaintiff’s high likelihood of success on the merits and the balance of hardships weighing heavily in his favor more than amply justify a preliminary injunction.” (Motion 6:5-11.) The Motion asserts, “Defendant’s refusal to endorse the check and/or permit it to be deposited so that disbursements can be made to the client and medical lienholders is in violation of both Plaintiff’s and Defendant’s professional responsibilities to the client (Rule of Professional Conduct 4-100) and is causing great and irreparable harm to Mr. Santamaria who is unable to financially support himself and unable to seek vital medical care for serious, ongoing prosthetic and orthopedic needs as an amputee.” (Motion; 5:24-6:1.) Thus, the Motion seeks an order requiring Respondent (Dennis Dascanio) to endorse a settlement check to allow Petitioner to disburse the settlement funds to his client, Marco Santamaria (Client).
The Motion relies on Code of Civil Procedure section 526, subdivision (a)(3), which states, “(a) An injunction may be granted in the following cases: . . . [¶] (3) When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.” (Motion; 3:4-7.)
The court notes that Petitioner does not identify any conduct by Respondent that would render a judgment ineffectual as between Petitioner and Respondent. Also, Petitioner has not identified and act by Respondent that would threaten to violate Petitioner’s rights. Rather than seeking to enjoin an act likely to render judgment ineffectual, the requested order seeks to compel an affirmative act which grants the relief sought in the Petition. Additionally, rather than seeking to protect the rights of a party, the Motion seeks immediate access to funds for the benefit of Petitioner’s client. (Motion: 5:17-19). In order to demonstrate hardship, Petitioner specifically references the financial condition of Petitioner’s client. (Motion; 5:9-13 and 524-6:1.)
The relief sought by Petitioner is a mandatory injunction because it requests the court to compel an act by Respondent. Teachers Insurance & Annuity Association v. Furlotti (1999) 70 Cal.App.4th 1487, 1493 (Teachers), states, “Two interrelated factors are evaluated by the trial court in deciding whether to issue a preliminary injunction. The first is the ‘reasonable probability’ that the plaintiff will prevail on the merits at trial. [Citation.] ‘ “. . . The second is the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm that the defendant is likely to suffer if the preliminary injunction were issued.” [Citation.]’ [Citation.]” “We emphasize that ‘ “ ‘[a] preliminary mandatory injunction is rarely granted, and is subject to stricter review on appeal.’ ” [Citation.] The granting of a mandatory injunction pending trial “ ‘is not permitted except in extreme cases where the right thereto is clearly established.’ ” [Citation.]’ [Citation.]” (Ibid., Italics in Teachers.)
Assuming injunctive relief is appropriate in this situation, Petitioner’s evidence does not demonstrate a likelihood of prevailing for the reasons discussed below.
The Motion does not expressly identify the claim on which Petitioner believes he will prevail. The Petition, however, requests a writ of mandate pursuant to Code of Civil Procedure section 1085. Petitioner has not demonstrated that writ relief is appropriate in this situation. The Motion does not address the application of Code of Civil Procedure section 1085 to this dispute.
Code of Civil Procedure section 1085, subdivision (a), provides, “(a) A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.” Zubarau v. City of Palmdale (2011) 192 Cal.App.4th 289, 305 (Zubarau), explains, “ ‘To obtain writ relief under Code of Civil Procedure section 1085, the petitioner must show there is no other plain, speedy, and adequate remedy; the respondent has a clear, present, and ministerial duty to act in a particular way; and the petitioner has a clear, present and beneficial right to performance of that duty. [Citation.] A ministerial duty is one that is required to be performed in a prescribed manner under the mandate of legal authority without the exercise of discretion or judgment.’ [Citation.] ‘Mandamus is . . . appropriate for challenging the constitutionality or validity of statutes or official acts. [Citations.]’ [Citation.]’ [Citation.]”
Petitioner has not demonstrated that Respondent owes a ministerial duty which would justify writ relief. The Motion states, “California Rule of Professional Conduct 2-200 (Rule 2-200) states in pertinent part: “(A) A member shall not divide a fee for legal services with a lawyer who is not a partner of, associate of, or shareholder with the member unless: (1) The client has consented in writing thereto after a full disclosure has been made in writing that a division of fees will be made and the terms of such division…” in this case, the client, Marco Santamaria never consented, either orally or in writing, to any fee sharing agreement between plaintiff and defendant and no such agreement exists. (See declaration of Marco Santamaria) Thus, under Rule 2-200 the attorney’s fees cannot be shared, and any claim of fee splitting by the defendant will not prevail.” (Motion; 3:27-4:6.); The court notes that the current that California Rule of Professional Conduct rule 1.5.1 is the current professional conduct rule that applies to fee sharing agreements.) Petitioner has not shown that Rule 2-200 establishes that Respondent has a ministerial duty under Code of Civil Procedure section 1085.
“ ‘In order to construe a statute as imposing a mandatory duty, the mandatory nature of the duty must be phrased in explicit and forceful language. [Citation.]’ [Citation.]” (The H.N. & Frances C. Berger Foundation v. Perez (2013) 218 Cal.App.4th 37, 48 (H.N.).) ‘. . . Mandate will not issue if the duty is not plain or is mixed with discretionary power or the exercise of judgment.’ [Citation.]” (Id, at p. 46.) “ . . . ‘. . . “A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his [or her] own judgment or opinion concerning such act's propriety or impropriety, when a given state of facts exists. . . .” ’ [Citation.]” (Center for Biological Diversity v. Department of Conservation (2018) 26 Cal.App.5th 161, 171 (Center).)
Here, the act that Petitioner seeks to compel – that is the endorsement of a settlement check – is not an action expressly and clearly mandated by former Rule 2-200. While the rule clearly mandates that fees should not be shared outside the circumstances articulated, it does not create a ministerial duty to endorse settlement checks. Consequently, it does not appear that Petitioner is seeking “the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station” as required to support relief under Code of Civil Procedure section 1085.
While Petitioner additionally cites California Professional Rules of Conduct Rule 4-100(B)(4) (Rule 4-100), this rule is cited only to demonstrate that “. . . Plaintiff has an obligation to bring the instant motion in order to resolve the dispute with Defendant and disperse the funds.” (Motion: 4:16-18). Petitioner does not cite this rule to demonstrate the existence of a ministerial duty on the part of Respondent, whom the parties appear to concede has no present ability to disburse the funds. Rule 4-100 also does not expressly mandate the action sought which is the endorsement of a settlement check for deposit into Petitioner’s trust account.
Finally, the court notes that the parties dispute the existence of a fee sharing agreement and consent thereto. Petitioner declares that “. . . there never was any fee splitting agreement between me and defendant Dascanio.” (Arsenian Decl., ¶ 6.) The Client declares that he is “. . . not aware of any fee splitting agreement between attorney Dennis Dascanio and Benjamin Arsenian. . . .” and he “. . . never consented, orally or in writing, to any fee sharing agreement . . . .” (Santamaria Decl., ¶ 3.) In contrast, however, Respondent declares, “Although I had a retainer agreement for personal injury claims with Marco Santamaria, in an abundance of caution and to ensure that I met any required professional disclosures or notices, I asked Marco Santamaria to acknowledge a notice of division of contingency fees . . . .” (Dascanio Decl., ¶ 9.) Respondent provides as Exhibit C to his Declaration a document titled “Division of Contingency Fees” which appears to be signed by Client and indicates consent to a division of fees. (Dascanio Decl., ¶ 11 and Exhibit C.) Respondent declares that “Marco Santamaria signed the Notice of Division of Contingency Fees.” (Dascanio Decl., ¶ 10.) This evidence of a dispute over whether Client signed the “Division of Contingency Fees” document further demonstrates that Petitioner has not demonstrated a sufficient likelihood of prevailing.
Based on the above, the court DENIES Petitioner’s (Benjamin Arsenian) Motion for Equitable Relief filed on 5-31-22 under ROA No. 32.