Search

Attributes

This case was last updated from Los Angeles County Superior Courts on 06/05/2019 at 09:13:38 (UTC).

MEDS DIRECT RX OF NY LLC ET AL VS NOAH JUSSIM ET AL

Case Summary

On 01/06/2017 MEDS DIRECT RX OF NY LLC filed a Contract - Professional Negligence lawsuit against NOAH JUSSIM. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is ELIZABETH ALLEN WHITE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5865

  • Filing Date:

    01/06/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Professional Negligence

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

ELIZABETH ALLEN WHITE

 

Party Details

Plaintiffs and Petitioners

GOOD SHEPHERD PHARMACY INC

MEDS DIRECT RX OPF TN LLC

MEDS DRECT RX OF NY LLC

MEDS DIRECT RX OF FL LLC

NEW HOPE PHARMACY INC

MEDS DIRECT RX OF TN LLC

PHARMA HOLDINGS US LTD.

PHARMA HOLDINGS US OF NY LLC

PHARMA HOLDINGS US OF TN LLC

MEDS DIRECT RX OF NY LLC

PHARMA HOLDINGS OF US OF FL LLC

PHARMA HOLDINGS US OF CALIFORNIA LLC

PHARMA HOLDINGS US OF PUERTO RICO LLC

Defendants and Respondents

DOES 1-25

JUSSIM NOAH

HINSHAW & CULBERTSON LLP

MCGUIRE WOODS LLP

MCGUIRE WOODS LLC

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

RITT TAI THVEDT & HODGES LLP

RITT D. JAY

BELL JAMES S.

MOLNAR CHRISTIAN S. ESQ.

LESCHES LEVI

Defendant Attorneys

WARSHAW ROBERT G. ESQ.

ROSING HEATHER LINN

WARSHAW ROBERT GERARD ESQ.

BODELL GREGORY

BODELL GREGORY ESQ.

ROSENTHAL JOHN TERRENCE

EDELSON ALISA S.

ROSING HEATHER L. ESQ.

 

Court Documents

Stipulation and Order

12/20/2018: Stipulation and Order

Order

1/22/2019: Order

Notice of Ruling

5/2/2019: Notice of Ruling

Motion to Compel

5/30/2019: Motion to Compel

Proof of Service by Mail

5/30/2019: Proof of Service by Mail

Motion to Compel

5/30/2019: Motion to Compel

Request for Judicial Notice

5/30/2019: Request for Judicial Notice

 

Docket Entries

  • 05/30/2019
  • at 08:30 AM in Department 48, Elizabeth Allen White, Presiding; Informal Discovery Conference (IDC)

    Read MoreRead Less
  • 05/30/2019
  • Separate Statement; Filed by Meds Direct RX of NY, LLC (Plaintiff)

    Read MoreRead Less
  • 05/30/2019
  • Separate Statement; Filed by Meds Direct RX of NY, LLC (Plaintiff)

    Read MoreRead Less
  • 05/30/2019
  • Motion to Compel (Responses to Form Interrogatories (Set One)); Filed by Meds Direct RX of NY, LLC (Plaintiff)

    Read MoreRead Less
  • 05/30/2019
  • Motion to Compel (Responses to Requests for Admission (Set One)); Filed by Meds Direct RX of NY, LLC (Plaintiff)

    Read MoreRead Less
  • 05/30/2019
  • Declaration (of Susan E. Holley in Support of Motions to Compel); Filed by Meds Direct RX of NY, LLC (Plaintiff)

    Read MoreRead Less
  • 05/30/2019
  • Separate Statement; Filed by Meds Direct RX of NY, LLC (Plaintiff)

    Read MoreRead Less
  • 05/30/2019
  • Declaration (of D. Jay Ritt in Support of Motions to Compel); Filed by Meds Direct RX of NY, LLC (Plaintiff)

    Read MoreRead Less
  • 05/30/2019
  • Proof of Service by Mail; Filed by Meds Direct RX of NY, LLC (Plaintiff)

    Read MoreRead Less
  • 05/30/2019
  • Motion to Compel (Responses to Demand for Production of Documents (Set One)); Filed by Meds Direct RX of NY, LLC (Plaintiff)

    Read MoreRead Less
233 More Docket Entries
  • 02/23/2017
  • Notice and Acknowledgment of Receipt; Filed by Meds Direct RX of NY, LLC (Plaintiff); Meds Direct RX of TN, LLC (Plaintiff); Meds Direct RX of FL, LLC (Plaintiff) et al.

    Read MoreRead Less
  • 02/23/2017
  • NOTICE OF ACKNOWLEDGEMENT OF RECEIPT - CIVIL

    Read MoreRead Less
  • 02/23/2017
  • NOTICE OF ACKNOWLEDGEMENT OF RECEIPT - CIVIL

    Read MoreRead Less
  • 02/23/2017
  • NOTICE OF ACKNOWLEDGEMENT OF RECEIPT - CIVIL

    Read MoreRead Less
  • 02/23/2017
  • Notice and Acknowledgment of Receipt; Filed by Meds Direct RX of NY, LLC (Plaintiff); Meds Direct RX of TN, LLC (Plaintiff); Meds Direct RX of FL, LLC (Plaintiff) et al.

    Read MoreRead Less
  • 01/13/2017
  • Notice of Case Management Conference; Filed by Clerk

    Read MoreRead Less
  • 01/13/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

    Read MoreRead Less
  • 01/06/2017
  • SUMMONS

    Read MoreRead Less
  • 01/06/2017
  • Complaint; Filed by Meds Direct RX of NY, LLC (Plaintiff); Meds Direct RX of TN, LLC (Plaintiff); Meds Direct RX of FL, LLC (Plaintiff) et al.

    Read MoreRead Less
  • 01/06/2017
  • COMPLAINT FOR: 1. LEGAL MALPRACTICE; ETC

    Read MoreRead Less

Tentative Rulings

Case Number: BC645865    Hearing Date: November 24, 2020    Dept: 48

[TENTATIVE] ORDER RE: MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT

On January 6, 2017, Plaintiffs Meds Direct RX of NY, LLC (“MDNY”); Meds Direct RX of FL, LLC (“MDFL”); Meds Direct RX of TN, LLC (“MDTN”); Good Shepherd Pharmacy, Inc.; and New Hope Pharmacy, Inc. (collectively, “Plaintiffs”) filed this action against Defendants Noah Jussim (“Jussim”); Hinshaw & Culbertson, LLP (“Hinshaw”); and McGuire Woods, LLP (“McGuire Woods”). On May 16, 2017, the Court sustained Hinshaw’s demurrer to the second (negligent misrepresentation) and fifth (fraudulent misrepresentation) causes of action with leave to amend and granted its motion to strike punitive damages with leave to amend. Plaintiffs filed a first amended complaint, and Hinshaw again demurred. The Court granted Plaintiffs’ motion for leave to file a second amended complaint (“SAC”).

On November 5, 2018, Plaintiffs filed their SAC. On January 22, 2019, the Court sustained Hinshaw’s demurrer to the fourth (negligent misrepresentation) and tenth (fraudulent misrepresentation and concealment) causes of action without leave to amend and granted its motion to strike punitive damages.

On October 5, 2020, the Court granted McGuire Woods’ motion for determination of good faith settlement. On October 15, 2020, Plaintiffs dismissed with prejudice the SAC’s first, third, fifth, seventh, and ninth causes of action against McGuire Woods and Jussim. As to Hinshaw, that leaves the second cause of action for legal malpractice, sixth cause of action for breach of fiduciary duty, and eighth cause of action for breach of contract. As to Jussim, that leaves the second cause of action for legal malpractice, fourth cause of action for negligent misrepresentation, sixth cause of action for breach of fiduciary duty, eighth cause of action for breach of contract, and tenth cause of action for fraudulent misrepresentation and concealment.

On October 28, 2020, Plaintiffs filed this motion for leave to file a third amended complaint. Plaintiff seeks to remove the causes of action against McGuire Woods following their settlement and re-plead fraud and punitive damages against Hinshaw.

The court may, in its discretion and after notice to the adverse party, allow an amendment to any pleading. (Code Civ. Proc., § 473, subd. (a)(1).) A motion to amend a pleading must include a copy of the proposed amendment or amended pleading which must be serially numbered to differentiate it from previous pleadings or amendments and must state what allegations in the previous pleading are proposed to be deleted or added, if any, and where, by page, paragraph, and line number, the allegations are located. (California Rules of Court, rule 3.1324(a).) The motion shall also be accompanied by a declaration attesting to the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why the request for amendment was not made earlier. (California Rules of Court, rule 3.1324(b).)

Plaintiffs provide a redlined version of their proposed pleading that shows the deletions and additions. (Holley Decl., Ex. 56 [“Proposed TAC”].) However, Plaintiffs’ declaration of Susan Holley does not comply with California Rules of Court, rule 3.1324(b). It does not attest to the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why the request for amendment was not made earlier. It does state that Medicare reimbursement checks and documents were first discovered in December 2019. (Holley Decl. ¶ 17.) This evidence appears to be relevant to allegations against Jussim during his employment with McGuire Woods before July 2015—not to allegations of Hinshaw’s fraud. (See Proposed TAC at ¶¶ 73-74, 153.)

Plaintiffs also filed a supplemental declaration with their reply. Counsel declares that Hinshaw began producing documents and discovery responses on May 31, 2019, after the SAC was filed. (Supplemental Holley Decl. ¶ 2.) Hinshaw produced “tens of thousands more pages of documents” in late August 2019. (Id. at ¶ 3.) Months later, Plaintiffs discovered certain documents from this production, and they found more information through independent research in late 2019. (Id. at ¶¶ 6-8.) During a December 2019 deposition, Plaintiffs received documents related to Jussim from his time at McGuire Woods. (Id. at ¶ 10.) Hinshaw produced more documents around January 23, 2020, and Plaintiffs found Hinshaw invoices that showed that Jussim and his paralegal were working on matters for PHUS. (Id. at ¶¶ 12-13.) In February 2020, Hinshaw produced more documents, which Plaintiffs expected “were supposed to be conflict check documents that we fought Hinshaw to produce. However, there were no such documents.” (Id. at ¶ 14.) This is consistent with Plaintiffs’ existing allegations in the SAC that Hinshaw and Jussim did not perform conflict checks. Plaintiffs do not explain how these documents support their proposed fraud and punitive damages amendments as to Hinshaw or why they did not request amendment earlier. Also, there is no basis to amend a pleading simply to add more facts supporting already adequately-pled causes of action. Otherwise, parties would constantly be seeking to amend throughout discovery as they uncovered new facts supporting their allegations. A party can use admissible evidence at trial even if the specific evidence is not referenced in the complaint.

The Court does not ordinarily consider the validity of the proposed amended pleading when determining whether to grant leave to amend.¿ (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1045.) Here, however, in January 2019, the Court sustained Hinshaw’s demurrer to the SAC without leave to amend “unless Plaintiffs can demonstrate a reasonable probability of successful amendment.” Accordingly, the Court will consider the reasonably probability of successful amendment.

In sustaining the demurrer to the SAC, the Court stated: “the fourth and tenth causes of action do not plead exactly what was said by H&C to which representative of Plaintiffs, when and in what manner (orally or in writing), why such representation was known to be false when made or was made without a reasonable basis for believing it to be true, or why H&C had a duty to disclose such fact to Plaintiffs of which Plaintiffs were not aware, and Plaintiffs[’] actual and justifiable reliance upon such misrepresentation which caused Plaintiffs damage. Further, because Jussim allegedly moved for [sic] McGuire to H&C, the specificity of what Jussim said, such that it could be imputed to H&C, was required to be pled.”

Plaintiffs’ proposed amendment does not remedy these defects. Plaintiffs’ new allegations include additional facts about Jussim’s conduct before joining Hinshaw. (See, e.g., Proposed TAC at ¶¶ 17-37, 48-72.) Plaintiffs generally rephrase allegations relating to Jussim’s August 24, 2015 letter informing Plaintiffs about his move and asking if they wanted their client files transferred to Hinshaw. (Compare SAC at ¶¶ 79-82 with Proposed TAC at ¶¶ 77-79.) Plaintiffs also revise prior allegations relating to Jussim’s failure to disclose PHUS as a client that he was bringing to Hinshaw, and that Jussim “intentionally did not disclose to HINSHAW anything that would notify them of that conflict.” (Proposed TAC at ¶ 80.) But Plaintiffs’ amendments to the negligent misrepresentation cause of action still lack the required specificity as to representations made by Hinshaw to Plaintiffs. (See id. at ¶¶ 120-129.) The amendments to the fraudulent misrepresentation also do not add the required information as to Hinshaw. (See id. at ¶¶ 152-189.)

Regarding punitive damages for the breach of fiduciary duty cause of action, the Court previously granted Hinshaw’s motion to strike punitive damages without leave to amend, finding that “[t]here are insufficient facts pled whereby H&C, through an officer, director or managing agent, acted with advance knowledge of the unfitness of Jussim, or authorized or ratified Jussim[’s] wrongful conduct, or acted with oppression, fraud or malice.” Plaintiffs’ proposed amendment to this cause of action does not remedy this defect and do not sufficiently allege facts showing Hinshaw’s knowledge, authorization, or ratification of Jussim’s conduct, or Hinshaw’s oppression, fraud or malic. As Plaintiffs’ amendments to the previously dismissed fraud causes of action are insufficient, the new allegations relating to punitive damages for fraud are moot.

Accordingly, the motion for leave to file a third amended complaint is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: BC645865    Hearing Date: November 18, 2020    Dept: 48

[TENTATIVE] ORDER RE: MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

On January 6, 2017, Plaintiffs Meds Direct RX of NY, LLC (“MDNY”); Meds Direct RX of FL, LLC (“MDFL”); Meds Direct RX of TN, LLC (“MDTN”); Good Shepherd Pharmacy, Inc.; and New Hope Pharmacy, Inc. (collectively, “Plaintiffs”) filed this action against Defendants Noah Jussim (“Jussim”); Hinshaw & Culbertson, LLP (“Hinshaw”); and McGuire Woods, LLP (“McGuire Woods”). On November 5, 2018, Plaintiffs filed their second amended complaint (“SAC”). On January 22, 2019, the Court sustained Hinshaw’s demurrer to the fourth and tenth causes of action without leave to amend and granted its motion to strike punitive damages.

On October 5, 2020, the Court granted McGuire Woods’ motion for determination of good faith settlement. On October 15, 2020, Plaintiffs dismissed with prejudice the SAC’s first, third, fifth, seventh, and ninth causes of action against McGuire Woods and Jussim.

That leaves the second cause of action for legal malpractice, sixth cause of action for breach of fiduciary duty, and eighth cause of action for breach of contract.

On March 18, 2020, Hinshaw filed this motion for summary judgment on the grounds that the action is barred by the statute of limitations and that Plaintiffs lack evidence that Hinshaw caused their damages based on any act or omission that occurred before September 16, 2015. On March 20, 2020, Jussim filed a notice of joiner and a separate statement of undisputed material facts.

REQUEST FOR JUDICIAL NOTICE

Hinshaw’s request for judicial notice is granted.

EVIDENTIARY OBJECTIONS

Plaintiffs’ objections to the Declaration of Noah Jussim and the Declaration of Steven M. Puiszis are overruled.

Hinshaw’s Objections to the Declaration of D. Jay Ritt are sustained, as the declaration is not signed under penalty of perjury. (Code Civ. Proc., § 2015.5; see Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 612 [“[C]ourts do not find compliance with section 2015.5 to be both substantial and sufficient unless all statutory conditions appear on the face of the declaration in some form.”].) Hinshaw’s Objection Nos. 7, 10-12, 20 are sustained. Hinshaw’s remaining objections are overruled.

FACTUAL BACKGROUND

Jussim was at McguireWoods until September 16, 2015. While at that firm, he represented Plaintiffs and negotiated and drafted five Management Services Agreements between Plaintiffs and Pharma Holdings US, Ltd. (“PHUS”). Plaintiffs and PHUS also entered into a Pharmacies Purchase and Sale Agreement (“PPSA”). (UMF 5.) Plaintiffs allege that Jussim drafted an Asset Purchase Agreement (“APA”) between Meds Direct TN and Enteral Products LLC (“Enteral”), which Alan Cohen signed as MDTN’s CFO on January 20, 2015. (UMF 12.) Plaintiffs allege that Jussim drafted and executed, without Plaintiffs’ knowledge, a First Amendment to the APA dated May 1, 2015. (UMF 14.) Plaintiffs also allege that on or before May 1, 2015, Jussim had Kevin Singer countersign parts of the First Amendment as an Authorized Manager of MDNY. (UMF 15.)

On September 16, 2015, Jussim became employed at Hinshaw. (UMF 1, 16.) Hinshaw and Plaintiffs did not have a separate retainer agreement or engagement letter, Hinshaw never sent an invoice or bill to Plaintiffs, and Plaintiffs never paid any amount to Hinshaw. (UMF 17-19.)

Samuel D. Navon was Plaintiffs’ corporate counsel from 2014 to 2017. (UMF 2.) In late October 2015, Navon received notice of a federal lawsuit brought by Enteral against MDTN, MDNY, and MDFL (“First Enteral Action”). (UMF 27.) Navon engaged counsel in California in December 2015. (UMF 40.) Navon billed Plaintiffs for time spent in connection with the First Enteral Action, and Plaintiffs paid the bills. (UMF 40-43.) The First Enteral Action was dismissed in December 2015. (UMF 44.) On March 9, 2016, Jussim and Hinshaw appeared as counsel of record for PHUS in the Second Enteral Action, and on May 5, 2016, they substituted out of the action. (UMF 46-47.)

DISCUSSION

For each claim in the complaint, the defendant moving for adjudication must satisfy the initial burden of proof by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520 (Scalf).) Then the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf, supra, 128 Cal.App.4th at p. 1520.) 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, 162-163.)

Causation

Hinshaw argues Plaintiff cannot show Hinshaw caused any damage based on any act occurring before September 16, 2015, when Jussim started working at Hinshaw.

The second, sixth and eighth causes of action allege that Jussim did not use Hinshaw’s conflict check system, and Hinshaw ratified this negligence by not having adequate systems in place. (SAC at ¶ 139.) Plaintiffs allege, among other things, that during Jussim’s employment with Hinshaw, he failed to advise Plaintiffs that he no longer represented them,continued to represent PHUS adversely to Plaintiffs in connection with the PPSA including exoneration of leases, represented PHUS’s interests instead of Plaintiffs’ in the Enteral negotiations and litigations, falsely represented to Enteral until December 2015 that PHUS was the real party in interest to the contract, represented and assisted PHUS in litigation and arbitration against Plaintiffs, refused to return client files for months, failed to disclose his conflict of interest in representing PHUS, concealed his representation of Cohen, failed to disclose his conflicts of interest into 2016, . (Id. at ¶¶ 140-141, 185, 199.)

These allegations involve acts or omissions after September 2015 when Jussim joined Hinshaw. Therefore, Hinshaw’s argument that the acts or omissions and any resulting damage occurred before Jussim joined Hinshaw is not a ground for summary judgment or summary adjudication.

Statute of limitations

Hinshaw also moves for summary judgment on the statute of limitations. An action against an attorney for a wrongful act or omission arising from professional services must be brought within the earlier of (1) one year after the plaintiff discovers (or through the use of reasonable diligence should have discovered) the fact constituting the wrongful act or omission, or (2) four years after the date of the wrongful act or omission. (Code Civ. Proc., § 340.6, subd. (a).) The time shall not exceed four years. (Ibid.) “The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm—not yet realized—does not suffice to create a cause of action for negligence. [Citations.] Hence, until the client suffers appreciable harm as a consequence of his attorney's negligence, the client cannot establish a cause of action for malpractice. Prosser states the proposition succinctly, ‘It follows that the statute of limitations does not begin to run against a negligence action until some damage has occurred.’ (Prosser, Law of Torts (4th ed. 1971), § 30 at p. 144.)” (Budd v. Nixen (1971) 6 Cal.3d 195, 200-201.)

The statute is tolled when the plaintiff has not sustained actual injury or when there is continuous representation. “The test for actual injury under section 340.6 . . . is whether the plaintiff has sustained any damages compensable in an action, other than one for actual fraud, against an attorney for a wrongful act or omission arising in the performance of professional services.” (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 751.) The statute is also tolled when the lawyer “ ‘continues to represent the [client] regarding the specific subject matter in which the alleged wrongful act or omission occurred.’ ” (Beal Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 508.)

Hinshaw contends that this action is barred by the one-year statute of limitations because Plaintiffs had knowledge of the facts underlying their claims more than one year before they filed this action on January 6, 2017. (Motion at p. 18.)

The second cause of action for malpractice alleges on August 24, 2015, Jussim told Plaintiffs he was moving to Hinshaw and they could move their files to Hinshaw. (SAC ¶ 136.) Plaintiffs authorized the transfer of their files. Later, Hinshaw did not release the files despite Plaintiffs’ demands for their release. (SAC ¶ 136.) Plaintiffs did not obtain their files until January 2018, when it was too late. (SAC ¶ 140.) Plaintiffs’ motion does not address this alleged act of malpractice.

The second cause of action also alleges Jussim did not use Hinshaw’s conflict check system, Hinshaw’s system was inadequate, and Hinshaw failed to ensure Jussim disclosed prior representations of all clients. (SAC ¶ 139.) Hinshaw allowed him to continue to represent PHUS’s interests adverse to Plaintiff’s interests. (SAC ¶ 140.) Plaintiff’s motion does not address the alleged failure to use the conflict check system.

The second cause of action alleges that in 2015 and into 2016 Jussim attempted to negotiate with Enteral to settle a federal lawsuit on behalf of Plaintiffs without disclosing to Plaintiff that he was also representing PHUS in the negotiations. The negotiations fell apart and Enteral sued Plaintiffs a second time. (SAC ¶ 141.) Hinshaw contends Jussim only represented PHUS in this negotiation, not Plaintiffs (Motion at p. 18 n. 10), and that Plaintiffs knew in November and December 2015 that Jussim represented PHUS. (Motion at p. 19.) Hinshaw cites to UMF 31 and 32 for the fact that Plaintiffs knew Jussim represented PHUS. This evidence does not establish that Jussim did not represent Plaintiffs, and it is ambiguous about when Plaintiffs knew Jussim was representing PHUS in the negotiations and whether and when Plaintiffs knew that PHUS’ interests were adverse to Plaintiffs.

Hinshaw also cites UMF 33, 36, 37, 39, 40. This evidence appears to refer to the negotiations that resulted in the November 24, 2015 notice of settlement, which later fell apart. However, the claims in the SAC focus on the events after the November 2015 settlement and December 2015 dismissal of the first Enteral lawsuit. Plaintiffs allege that with the filing of the second Enteral action in February 2016, they learned that Jussim had been acting contrary to their interests in the negotiations. (SAC ¶¶ 102-105) Plaintiffs submit evidence that in November and December 2015, they understood their involvement in the Enteral contract and litigation was a mistake that Jussim was fixing for them and in fact did resolve so that the case was dismissed. (Navon Decl. ¶¶ 18, 19, 21-23.) Plaintiffs contend that the “angry threats” to Jussim was to make sure he resolved the Enteral matter to Plaintiffs’ satisfaction. (Navon Decl. ¶ 19.) But when the settlement fell apart and Enteral sued Plaintiffs in February 2016, Plaintiffs contend they suffered substantial damages in defending that second lawsuit. (Navon Decl. ¶¶ 27-28.) This evidence raises a disputed question of fact about when Plaintiffs learned that Jussim was acting contrary to their interests in connection with the Enteral negotiations and the two Enteral lawsuits. A jury could reasonably conclude Plaintiffs had a basis for believing Jussim was acting in Plaintiffs’ interests through the December 2015 case dismissal in resolving the matter.

In addition, Plaintiffs present evidence that at the time of the December 2015 settlement, Plaintiff had not incurred any significant damages because they believed Jussim had fixed the problem by obtaining dismissal of the case. (Navon Decl. ¶ 23.) A plaintiff, and a trier of fact, could reasonably decide that any damages up to December 2015 concerning the Enteral matter were nominal. The Court cannot conclude that the only conclusion, as a matter of law, is that Plaintiffs suffered damages by December 2015 such that a cause of action accrued before January 2016 and was not tolled.

The second cause of action also alleges Jussim and Hinshaw actively represented PHUS in a different lawsuit in 2016 against Plaintiffs and failed to disclose that conflict of interest. (SAC ¶¶ 110, 112, 140.) Hinshaw does not address this litigation.

The second cause of action alleges Jussim, while at Hinshaw, continued to represent only PHUS interests in its ongoing performance obligations of PPSA terms adverse to Plaintiffs. (SAC ¶ 140.) Hinshaw argues Plaintiffs knew since the March 2015 letter that Jussim represented PHUS in the negotiation of the agreements (UMF 7-9), and by October 2015, knew of Jussim’s alleged failure to take efforts to effectuate the terms of the PPSA. (Motion at p. 19; UMF 24, 25.) Plaintiffs seem to be limiting this claim to Jussim’s “failing to obtain exoneration of Plaintiffs’ leases pursuant to the purchase agreement he negotiated on their behalf.” (Opposition at p . 11.) What Plaintiffs knew about Jussim’s failure on this point is disputed, and the inferences that can be drawn from the evidence are conflicting. (See Responses to UMFs 24, 25.)

The sixth and eighth causes of action are also based on the Enteral litigation, file retention, conflict check system, lease exoneration (SAC ¶¶ 181, 185, 198, 199), as well as other many other alleged wrongful acts not addressed in Hinshaw’s motion. (Ibid.)

In sum, Hinshaw does not address all the various alleged wrongful acts, and there are disputed facts and conflicting inference that can be drawn about the Enteral matter and lease exoneration. Therefore summary judgment or summary adjudication cannot be granted.

CONCLUSION

The motion for summary judgment, or in the alternative summary adjudication, is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: BC645865    Hearing Date: October 05, 2020    Dept: 48

[TENTATIVE] ORDER RE: APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT

On January 6, 2017, Plaintiffs Meds Direct Rx of NY, LLC, Meds Direct Rx of TN, LLC, Meds Direct Rx of FL, LLC, New Hope Pharmacy, Inc., and Good Shepherd Pharmacy, Inc. (collectively, “Plaintiffs”) filed this action against several defendants including Defendant McGuireWoods LLP (“McGuireWoods”) alleging legal malpractice. McGuireWoods has now settled for $1.3 million and filed this application for determination of good faith settlement. No party has objected.

The Court must approve any settlement entered into by less than all joint tortfeasors or co-obligors. (Code Civ. Proc., § 877.6.) This requirement furthers two sometimes-competing policies: (1) the equitable sharing of costs among the parties at fault, and (2) the encouragement of settlements. (Erreca’s v. Superior Court (1993) 19 Cal.App.4th 1475, 1487.) To demonstrate a lack of good faith, the non-settling party must show that the settlement is so far “out of the ballpark” as to be inconsistent with the equitable objectives of Section 877.6. (Nutrition Now, Inc. v. Superior Court (2003) 105 Cal.App.4th 209, 213.) The Court will typically consider: (1) the plaintiff’s (roughly) approximated total recovery; (2) the settlor’s share of liability; (3) the size of the settlement at issue; (4) the distribution of settlement proceeds among plaintiffs; (5) the usual discount value when plaintiffs settle before trial; the settlor’s financial condition and insurance policy limits; and (6) whether there is evidence of “collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.” (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499.) These factors will be evaluated accordingly to what information is available at the time of settlement. (Ibid.) “When no one objects, the barebones motion which sets forth the ground for good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient” for the Court to grant a motion for determination of good faith settlement. (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261.)

McGuireWoods submitted a declaration setting out the background of this case. McGuireWoods maintains that it is not liable because the attorney working on the matter was experienced and did not need supervision, the conflict letter signed by Plaintiffs was sufficient, Plaintiffs had separate counsel regarding agreements in dispute, and Plaintiffs’ principals expressly authorized and directed Plaintiffs to enter into a contract that led to extensive litigation. Thus, McGuireWoods has evidence which will undermine Plaintiffs’ claims at trial. At the time of mediation, Plaintiffs stated that their total compensatory damages are approximately $2.53 million. Plaintiffs have also received a settlement in the other consolidated case.

Based on the record presented and the lack of any objection, the Court GRANTS the application, finds this settlement was made in good faith, and orders that any other joint tortfeasor or co-obligor is barred from asserting further claims against McGuireWoods for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: BC645865    Hearing Date: December 12, 2019    Dept: 48

(1) MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE; REQUEST FOR SANCTIONS;

(2) MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET ONE; REQUEST FOR SANCTIONS;

(3) MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS;

(4) MOTION TO DEEM REQUESTS FOR ADMISSION ADMITTED; REQUEST FOR SANCTIONS

MOVING PARTY: (1) – (4) Plaintiff Meds Direct RX of NY, LLC

RESPONDING PARTY(S): (1) – (4) Defendant Hinshaw & Culbertson, LLP

PROOF OF SERVICE:

The hearing is CONTINUED to January 30[1], 2020. Joint separate statements are due January 20, 2019. The Court will address the issue of sanctions at the further hearing. Alternatively, the court will address the issues in an Informal Discovery Conference and, if the issues are resolved, no further hearing will be required.


[1] The Court notes that there is a hearing schedule in BC683846, Pharma Holdings for that date.

related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where PHARMA HOLDING US OF CA LLC is a litigant

Latest cases where McGuire Woods, LLP. is a litigant