This case was last updated from Los Angeles County Superior Courts on 08/23/2020 at 06:40:59 (UTC).

MITCHELL MIDDLETON VS MICHAEL D WAKS ET AL

Case Summary

On 05/29/2018 MITCHELL MIDDLETON filed a Contract - Professional Negligence lawsuit against MICHAEL D WAKS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8187

  • Filing Date:

    05/29/2018

  • Case Status:

    Other

  • Case Type:

    Contract - Professional Negligence

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff and Petitioner

MIDDLETON MITCHELL

Defendants and Respondents

WAKS MICHAEL D.

BARRETT JOSEPH

BISH MINDY

DOES 1-50

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

GOODMAN KAREN M. ESQ

GOODMAN KAREN M.

Defendant and Respondent Attorneys

AFFELD DAVID W. ESQ.

NEMECEK & COLE

KJAR MCKENNA & STOCKALPER LLP

BODENSTEIN JANETTE SHARON

AFFELD DAVID WILLIAM ESQ.

KJAR JAMES JORGEN

AFFELD DAVID W.

KJAR JAMES J.

BODENSTEIN JANETTE S.

 

Court Documents

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (ORDER TO SHOW CAUSE RE: DISMISSAL (SETTLEMENT)) OF 08/06/2020

8/6/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (ORDER TO SHOW CAUSE RE: DISMISSAL (SETTLEMENT)) OF 08/06/2020

Request for Dismissal

4/28/2020: Request for Dismissal

Request - REQUEST HRG 03.24.20 MIDDLETON REQUEST FOR CONTINUANCE OF OSC HEARING

3/17/2020: Request - REQUEST HRG 03.24.20 MIDDLETON REQUEST FOR CONTINUANCE OF OSC HEARING

Notice of Entry of Dismissal and Proof of Service

2/11/2020: Notice of Entry of Dismissal and Proof of Service

Response - RESPONSE DEFENDANT MINDY BISH'S RESPONSES TO PLAINTIFF'S ADDITIONAL SEPARATE STATEMENT

10/25/2019: Response - RESPONSE DEFENDANT MINDY BISH'S RESPONSES TO PLAINTIFF'S ADDITIONAL SEPARATE STATEMENT

Objection - OBJECTION TO EVIDENCE IN SUPPORT OF DEFENDANT MINDY BISH'S MOTION FOR SUMMARY JUDGMENT OR ADJUDICATION

10/16/2019: Objection - OBJECTION TO EVIDENCE IN SUPPORT OF DEFENDANT MINDY BISH'S MOTION FOR SUMMARY JUDGMENT OR ADJUDICATION

Opposition - OPPOSITION TO SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT MINDY BISH'S MOTION FOR SUMMARY JUDGMENT OR ADJUDICATION

10/16/2019: Opposition - OPPOSITION TO SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT MINDY BISH'S MOTION FOR SUMMARY JUDGMENT OR ADJUDICATION

Notice - NOTICE OF CONTINUANCE OF POST MEDIATION CONFERENCE

9/24/2019: Notice - NOTICE OF CONTINUANCE OF POST MEDIATION CONFERENCE

Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW)

9/17/2019: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW)

Stipulation - No Order - STIPULATION AND ORDER OF THE PARTIES TO CONTINUE POST MEDIATION CONFERENCE

9/17/2019: Stipulation - No Order - STIPULATION AND ORDER OF THE PARTIES TO CONTINUE POST MEDIATION CONFERENCE

Declaration - DECLARATION OF JASON J. PETERSEN, ESQ. ISO MSJ

8/20/2019: Declaration - DECLARATION OF JASON J. PETERSEN, ESQ. ISO MSJ

Declaration - DECLARATION OF DEFENDANT MINDY BISH IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

8/14/2019: Declaration - DECLARATION OF DEFENDANT MINDY BISH IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Notice of Change of Firm Name

7/8/2019: Notice of Change of Firm Name

Certificate of Mailing for - CERTIFICATE OF MAILING FOR MINUTE ORDER (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES - COM...) OF 04/04/2019

4/4/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR MINUTE ORDER (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES - COM...) OF 04/04/2019

Order - Order Ruling Re: Defendant Mindy Bish and Michael D. Waks's Motion to Strike Portions of the Complaint

1/11/2019: Order - Order Ruling Re: Defendant Mindy Bish and Michael D. Waks's Motion to Strike Portions of the Complaint

Notice of Posting of Jury Fees

10/22/2018: Notice of Posting of Jury Fees

Motion for Order - Motion for Order to Compel

11/28/2018: Motion for Order - Motion for Order to Compel

NOTICE OF JOINDER OF DEFENDANT MICHAEL D. WAKS TO DEFENDANT MINDY BISH'S MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT

8/1/2018: NOTICE OF JOINDER OF DEFENDANT MICHAEL D. WAKS TO DEFENDANT MINDY BISH'S MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT

95 More Documents Available

 

Docket Entries

  • 08/20/2020
  • DocketNotice of Entry of Dismissal and Proof of Service; Filed by Mitchell Middleton (Plaintiff)

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  • 08/17/2020
  • DocketRequest for Dismissal; Filed by Mitchell Middleton (Plaintiff)

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  • 08/06/2020
  • Docketat 10:30 AM in Department 78; Order to Show Cause Re: Dismissal (Settlement) - Held - Continued

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  • 08/06/2020
  • DocketCertificate of Mailing for ((Order to Show Cause Re: Dismissal (Settlement)) of 08/06/2020); Filed by Clerk

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  • 08/06/2020
  • DocketMinute Order ( (Order to Show Cause Re: Dismissal (Settlement))); Filed by Clerk

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  • 05/27/2020
  • Docketat 08:30 AM in Department 78; Order to Show Cause Re: Dismissal (Settlement) - Not Held - Advanced and Continued - by Court

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  • 04/28/2020
  • DocketRequest for Dismissal (- NOT ENTERED); Filed by Mitchell Middleton (Plaintiff)

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  • 04/22/2020
  • Docketat 09:14 AM in Department 78; Court Order

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  • 04/22/2020
  • DocketMinute Order ( (Court Order)); Filed by Clerk

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  • 04/22/2020
  • DocketCertificate of Mailing for ((Court Order) of 04/22/2020); Filed by Clerk

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130 More Docket Entries
  • 07/12/2018
  • DocketAnswer; Filed by Michael D. Waks (Defendant)

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  • 07/12/2018
  • DocketANSWER TO COMPLAINT ON BEHALF OF DEFENDANT MICHAEL D. WAKS

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  • 07/10/2018
  • DocketPROOF OF SERVICE: NOTICE OF CASE REASSIGNMENT AND ORDER FOR PLAINTIFF TO GIVE NOTICE

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  • 07/03/2018
  • DocketNOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

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  • 07/03/2018
  • DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 06/06/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 06/06/2018
  • DocketNOTICE OF CASE MANAGEMENT CONEERENCE

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  • 05/29/2018
  • DocketComplaint; Filed by Mitchell Middleton (Plaintiff)

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  • 05/29/2018
  • DocketCOMPLAINT FOR DAMAGES: ETC....

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  • 05/29/2018
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC708187    Hearing Date: December 12, 2019    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

MITCHELL MIDDLETON;

Plaintiff,

v.

MICHAEL D. WAKS, et al.,

Defendants.

Case No.: BC708187

Hearing Date: December 12, 2019

[TENTATIVE] RULING RE:

DEFENDANT MINDY BISH’S MOTION FOR AN ORDER STAYING CASE

Defendant Mindy Bish’s Motion for an Order Staying Case is DENIED.

FACTUAL BACKGROUND

This is an action for breach of contract. The Complaint alleges as follows. Defendants Michael D. Waks (“Waks”), Mindy Bish (“Bish”), and Joseph Barrett (“Barrett”) (collectively “Defendants”) are attorneys who jointly represented Plaintiff Michael Middleton (“Middleton”) in litigation for personal injuries he sustained in a motor vehicle accident. (Compl. ¶¶ 2-5, 8.) On April 12, 2012, Middleton sought legal representation from Waks who had Middleton sign a retainer agreement. (Compl. ¶ 8.) On March 11, 2014, Waks filed a complaint on Middleton’s behalf in his personal injury case. (Compl. ¶ 9.) On September 9, 2015, Waks brought Bish into the case as co-counsel and represented that the attorneys would share the recovered attorneys’ fees. (Compl. ¶ 10.) On July 8, 2016, Waks brought Barrett to act as lead trial counsel, to which Middleton agreed, and the three attorneys represented that the attorneys’ fees would be shared by the three attorneys. (Compl. ¶ 10.) The case settled for $991,249.01. (Compl. ¶ 13.) Middleton signed a release, which Waks sent to defense counsel with instructions that the settlement amount be paid to the law firm. (Compl. ¶ 13.) On August 15, 2016, Barret deposited the settlement check in the law firm’s trust account. (Compl. ¶ 14.) The attorneys reimbursed themselves a total of $396,499.60 in attorneys’ fees and $75,231.50 in costs out of the settlement amount without informing Middleton or seeking his consent. (Compl. ¶¶ 15-16.) Middleton was supposed to receive $450,414.96 after payment of $69,102.95 in medical liens, but Middleton has still not received such funds. (Compl. ¶ 16.) The Complaint alleges that Middleton repeatedly asked Defendants from October 2016 through May 2017 to provide him with the check, as well as itemized list of the costs and fees, and the return of personal property such as medical records and certification records, which Defendants refused. (Compl. ¶¶ 17-21.) During this time, Barret’s law firm of Layfield and Barrett (“L&B”) was dissolving, and Waks and Bish ultimately disclosed that Barret’s former law partner, Philip Layfield, took Middleton’s settlement funds. (Compl. ¶¶ 22, 24.) Waks suggested that Middleton file complaints with the state bar against Bish, Barrett and Layfield, but that he not file a civil action. (Compl. ¶ 27.) Middleton severed the attorney-client relationship with Waks and filed this action. (Compl. ¶ 28.) Plaintiff alleges he has not, to date, received any portion of the settlement funds from the underlying case from Defendants. (Compl. ¶27.)

PROCEDURAL HISTORY

On May 29, 2018, Plaintiff filed a Complaint, asserting five causes of action:

  1. Breach of contract

  2. Professional negligence

  3. Breach of fiduciary duty

  4. Conversion (only against Barrett)

  5. Rescission of Fee Agreement

On July 12, 2018, Waks filed an Answer to the Complaint.

On July 30, 2018, Barrett filed an Answer to the Complaint.

On February 11, 2019, Bish filed an Answer to the Complaint.

On August 14, 2019, Bish filed a Motion for Summary Judgment/ adjudication, which the Court granted as to the first and fifth causes of action and denied as to the third cause of action.

On August 20, 2019, Waks filed a Motion for Summary Judgment, scheduled for February 10, 2020.

On October 7, 2019, Bish filed the instant Motion for an Order Staying the Case.

On November 27, 2019, Plaintiff filed an Opposition.

On December 5, 2019, Bish filed a Reply.

DISCUSSION

  1. MOTION FOR AN ORDER TO STAY

Courts have the inherent power to regulate their own proceedings. (Code Civ. Proc. § 128.) Toward this end, “[t]rial courts generally have the inherent power to stay proceedings in the interests of justice and to promote judicial efficiency.” (Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489.) 

When an action is brought in a court of this state involving the same parties and the same subject matter as an action already pending in a court of another jurisdiction, a stay of the California proceedings is not a matter of right, but within the sound discretion of the trial court. In exercising its discretion the court should consider the importance of discouraging multiple litigation designed solely to harass an adverse party, and of avoiding unseemly conflicts with the courts of other jurisdictions. It should also consider whether the rights of the parties can best be determined by the court of the other jurisdiction because of the nature of the subject matter, the availability of witnesses, or the stage to which the proceedings in the other court have already advanced.

(Farmland Irr. Co. v. Dopplmaier (1957) 48 Cal.2d 208, 215.) 

Defendant Bish argues for a stay on the grounds that Plaintiff has pending matters in U.S. Bankruptcy court and with the State Bar of California Client Security Fund, which involve the same relief and reimbursement and “the fat that these three claims overlap renders the damages in this matter uncertain.” (Motion at p. 7.)

The bankruptcy matter cited by Bish is a U.S. Bankruptcy matter of Layfield & Barrett APC, filed on August 3, 2017, and currently pending. (Motion, Exh. 3.) The matter involves two trustees, thirteen interested parties, and at least one creditor. (Motion, Exh. 3.) The State Bar of California Client Security Fund is a fund that can reimburse clients who have lost money or property due to theft or dishonesty by a California lawyer, which can reimburse up to $100,000. (Motion, Exh. 1.) Plaintiff filed a claim with the fund for reimbursement of $100,000 but his application is still under review. (Motion at p. 5.)

In Opposition, Plaintiff points out to the Court that Layfield and Layfield & Barrett, the law firm, are not defendants in this case. (Opposition at p. 3.) Plaintiff also argues the distinctions between the bankruptcy filing, the fund application, and the instant case. Plaintiff argues that his client security fund application specifically relates to non-defendant Layfield and thus is irrelevant. (Opposition at p. 7.) Plaintiff contends that so long as he “asserts independent bases for liability against Bish, Waks, and Barrett, resolving the causes of action in this case doesn’t require Layfield’s involvement.” (Opposition at p. 7.) He argues that he is not guaranteed a payout from the State Bar, and that he has no reason to believe that he will be reimbursed by the State Bar. (Opposition at p. 12.)

Plaintiff further argues that the bankruptcy matter only involves Layfield & Barrett the law firm and he is an unsecured creditor along with thirteen other creditors with claims totaling over $11 million that his prospects in that claim are “grim.” (Opposition at pp. 11-12.) Further, Plaintiff argues that “It would be the peak of unfairness to stay this case under such circumstances, especially because Bish managed to receive her “fee” of $99,124.90 from the underlying personal injury case.” (Opposition at p. 12.)

Bish contends in her motion that the reason that the other pending matters are relevant is because Plaintiff is not entitled to receive duplicate awards and that if Plaintiff receives a payout from these other sources, then the damage claim may be reduced or eliminated as it applies to her. (Motion at p. 7.) However, Plaintiff argues in his Opposition that Bish, along with the other defendants, are jointly and severally liable to the extent they breached their own independent fiduciary duties and duties of care. (Motion at p. 9.)

The Court, here, sees no need for a stay. The present action involves Defendants Michael Waks, Mindy Bish, and Joseph Barrett, while the State Bar claims is lodged solely against Philip Layfield and the bankruptcy matter involves only the law firm of Layfield & Barrett, neither of whom are defendants in this case. Accordingly, the present action is not brought against the bankruptcy debtor, but against other parties. Further, Bish has not shown how any finding in the other matters will have any bearing on the liability that she may personally have based on her own breaches of duties owed to Plaintiff.

In sum, the parties in the instant case are different from the other two matters, as are the causes of action. A resolution in the other two matters would not bring Plaintiff any closer to resolving the issues at stake in this matter. Further, there is no evidence that Plaintiff brought the present action to harass the parties in the instant case with repeated litigation, and there is no evidence that Plaintiff should be compelled to wait to receive a result from the other two matters, especially given the predicted lengthy timeline for both matters.

Accordingly, the Motion for an Order Staying Case is DENIED.

Dated: December 12, 2019

____________________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: BC708187    Hearing Date: November 01, 2019    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

MITCHELL MIDDLETON;

Plaintiff,

v.

MICHAEL D. WAKS, et al.,

Defendants.

Case No.: BC708187

Hearing Date: November 1, 2019

[TENTATIVE] RULING RE:

DEFENDANT MINDY BISH’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

Defendant Mindy Bish’s Motion for Summary Adjudication is GRANTED as to the First and Fifth Causes of Action for Breach of Contract and Rescission of Fee Agreement and DENIED as to the Third Cause of Action for Breach of Fiduciary Duty.

FACTUAL BACKGROUND

The Complaint in this action alleges as follows. Defendants Michael D. Waks (“Waks”), Mindy Bish (“Bish”), and Joseph Barrett (“Barrett”) (collectively “Defendants”) are attorneys who jointly represented Plaintiff Michael Middleton (“Middleton”) in litigation for personal injuries he sustained in a motor vehicle accident. (Compl. ¶¶ 2-5, 8.) On April 12, 2012, Middleton sought legal representation from Waks who had Middleton sign a retainer agreement. (Compl. ¶ 8.) On March 11, 2014, Waks filed a complaint on Middleton’s behalf in his personal injury case. (Compl. ¶ 9.) On September 9, 2015, Waks brought Bish into the case as lead trial counsel and represented that the attorneys would share the recovered attorneys’ fees. (Compl. ¶ 10.) On July 8, 2016, Waks brought Barrett to act as lead trial counsel, to which Middleton agreed, and the three attorneys represented that the attorneys’ fees would be shared by the three attorneys. (Compl. ¶ 10.) The case settled for $991,249.01. (Compl. ¶ 13.) Middleton signed a release, which Waks sent to defense counsel with instructions that the settlement amount be paid to the law firm. (Compl. ¶ 13.) On August 15, 2016, Barret deposited the settlement check in the law firm’s trust account. (Compl. ¶ 14.) The attorneys reimbursed themselves a total of $396,499.60 in attorneys’ fees and $75,231.50 in costs out of the settlement amount without informing Middleton or seeking his consent. (Compl. ¶¶ 15-16.) Middleton was supposed to receive $450,414.96 after payment of $69,102.95 in medical liens, but Middleton has still not received such funds. (Compl. ¶ 16.) The Complaint alleges that Middleton repeatedly asked Defendants from October 2016 through May 2017 to provide him with the check, as well as itemized list of the costs and fees, and the return of personal property such as medical records and certification records, which Defendants refused. (Compl. ¶¶ 17-21.) During this time, Barret’s law firm of Layfield and Barrett (“L&B”) was dissolving, and Waks and Bish ultimately disclosed that Barret’s former law partner, Philip Layfield, took Middleton’s settlement funds. (Compl. ¶¶ 22, 24.) Waks suggested that Middleton file complaints with the state bar against Bish, Barrett and Layfield, but that he not file a civil action. (Compl. ¶ 27.) Middleton severed the attorney-client relationship with Waks and filed this action. (Compl. ¶ 28.) Plaintiff alleges he has not, to date, received any portion of the settlement funds from the underlying case from Defendants. (Compl. ¶27.)

PROCEDURAL HISTORY

On May 29, 2018, Plaintiff filed a Complaint, asserting five causes of action:

  1. Breach of contract

  2. Professional negligence

  3. Breach of fiduciary duty

  4. Conversion (only against Barrett)

  5. Rescission of Fee Agreement

On July 12, 2018, Waks filed an Answer to the Complaint.

On July 30, 2018, Barrett filed an Answer to the Complaint.

On February 11, 2019, Bish filed an Answer to the Complaint.

On August 14, 2019, Bish filed the instant Motion for Summary Judgment/ adjudication.

On August 20, 2019, Waks filed a Motion for Summary Judgment.

On October 16, 2019, Plaintiff filed an Opposition to Bish’s Motion.

On October 25, 2019, Bish filed a Reply.

Trial is set for March 24, 2020.

DISCUSSION

  1. OBJECTIONS

Plaintiff objects to various of Bish’s evidentiary materials in support of her Motion. Objection No. 4 is SUSTAINED, the remaining objections are OVERRULED.

Bish objects to various of Plaintiff’s evidentiary materials in support of his Opposition. Bish’s Objections Nos. 1-16 to the declaration of Neil J. Wertlieb are SUSTAINED. (See Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703, 718 (“Cases dismissing expert declarations in connection with summary judgment motions do so on the basis that the declarations established that the opinions were either speculative, lacked foundation, or were stated without sufficient certainty.”), Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1178 (As a general rule, the opinion of an expert is admissible when it is ‘[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact…’ [Citation] Additionally, in California: ‘Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.’ [Citation] However, the admissibility of opinion evidence that embraces an ultimate issue in a case does not bestow upon an expert carte blanche to express any opinion he or she wishes. [Citation] There are limits to expert testimony, not the least of which is the prohibition against admission of an expert's opinion on a question of law.”), and Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771-772 (“Thus, under Evidence Code sections 801, subdivision (b), and 802, the trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative. Other provisions of law, including decisional law, may also provide reasons for excluding expert opinion testimony.”).)

Bish’s objections to Plaintiff’s declaration are SUSTAINED as to Nos. 20, 24, 28, 29, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 47, 48, 50, 51, 52 (only as to the phrase “sudden moment of clarity”), 53, 56, 57, and 58, and OVERRULED as to the remainder.

  1. MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) A Defendant moving for summary judgment may meet its initial burden, inter alia, by proving that for each cause of action alleged, Plaintiff cannot establish at least one element of the cause of action. (Code Civ. Proc. § 437c(p)(2).) What this means in practice is that if a cause of action, such as fraud, for example, requires proof of five elements, one of which is reliance, and if Defendant sets forth a prima facie case that reliance cannot be proven (either by citation to plaintiff’s deposition testimony, written discovery responses or other means), then Defendant has met its burden.

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. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) 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.)

Bish moves for summary judgment against Plaintiff. In the alternative, Bish moves for summary adjudication of the breach of contract, breach of fiduciary duty, and rescission causes of action.

  1. BREACH OF CONTRACT (FIRST CAUSE OF ACTION)

“The standard elements of a claim for breach of contract are ‘(1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom. [Citation.]’ [Citation]” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.)

The evidence establishes that Plaintiff cannot establish Bish breached the retainer agreement. (See Wall Street Network, Ltd. at 1178.) The undisputed facts show that Bish received a check for $99,124.90 from L&B’s client trust account in September 2016, for her share of attorneys’ fees, and a check for $27,342.10 to reimburse her for costs she had expended in the underlying case on behalf of Plaintiff.

The undisputed facts show Bish was entitled to gross attorneys’ fees in the amount of 25%. It is undisputed that Plaintiff retained Waks to represent him in an action for his injuries in the underlying action and signed a written retainer agreement with Waks. (UMF No. 2.) The retainer agreement, attached as Exhibit 1 to the complaint, provides for attorneys’ fees in the amount of 33.5% of the gross recovery or 40% of the gross recovery if settled 30 days before trial. It is undisputed that in July 2016, Waks, L&B, and Bish entered into an association agreement whereby it was agreed that Bish would be lead trial counsel and the gross attorney fees would be divided 50% to Waks and 50% to L&B and Bish (25% each), and Plaintiff consented to the arrangement. (UMF No. 11.) It is undisputed that the underlying action settled on July 22, 2016, for $991,249.01. (UMF No. 16.) It is undisputed that Bish received a check for $99,124.90 from L&B’s client trust account for her share of the attorneys’ fees (UMF No. 26) which is the amount to which she was entitled under the retainer agreement.[1]

The undisputed facts also show Bish did not charge for unreasonable costs. It is undisputed that all of the costs and expenses which Bish expended in connection with the Underlying Case were necessary to properly prosecute the case and Bish did not charge Plaintiff for expenses that were incurred on behalf of any other client or in any other matter. (UMF No. 32). The retainer agreement explicitly states that Plaintiff “shall reimburse any reasonable costs expended by attorney in good faith.”

Based on the foregoing, Bish met her burden on summary judgment/adjudication. Therefore, the burden shifts to Plaintiff to create a triable issue of material fact. As discussed below in detail, Plaintiff did not meet his burden. Plaintiff did not submit admissible evidence creating a triable issue of material fact as to whether Bish breached the retainer agreement. Instead Plaintiff argues that Bish breached her contract (the retainer agreement)by not preventing the other attorneys from breaching theirs.

Plaintiff argues that Bish owed him a duty under former Rule 4-100 to safeguard the settlement funds. (Opposition at p. 11.) However, as set forth above, under Rule 4-100 an attorney has a duty to safeguard funds and promptly distribute funds that are received or held by the lawyer or law firm for the benefit of a client. Plaintiff did not submit admissible evidence suggesting Bish received or held funds for Plaintiff’s benefit. Plaintiff cites no authority contradicting the fact that Rule 4-100 “requires an attorney to be in actual possession of funds…in order…to be ethically bound…” (Opposition at p. 12.) Additionally, Plaintiff did not establish that Waks, Bish, and L&B qualify as a law firm under former Rule 4-100.[2] (Opposition at p. 12.) This is especially true considering it is undisputed that Waks, L&B, and Bish entered into an association agreement, whereby it was agreed the gross attorneys’ fees would be divided 50% to Waks and 50% to L&B and Bish together, Plaintiff consented to the arrangement, Bish never had access to or control over L&B’s or Waks’ client trust accounts or any other accounts and never issued any checks to anyone from L&B’s or Waks’ accounts, Bish had no supervisory authority or control over Waks’ or L&B’s employees or staff members at any time, Waks, L&B, and Bish each maintained their own offices, and maintained separate books, records, and files as they worked on the underlying action, Bish had no interest in any fees which might be paid to Waks or L&B out of the recovery in the case, if any, or in any sums they might each receive to reimburse them for costs they had expended, and Bish did not understand that Waks or L&B had any interest in what she might receive in fees or reimbursement for costs. (UMF Nos. 11, 13, 37, 41, 42.)

Plaintiff further argues that Bish can be held jointly and severally liable for the settlement misappropriation as an associated attorney of Barrett’s. Specifically, Plaintiff argues Barrett was, at the very least, an ostensible partner of L&B, and Bish’s association with L&B was a joint venture. (Opposition, pp. 14-18.) However, as argued by Bish, Plaintiff cannot raise partnership or joint venture liability in opposition to the motion for summary judgment/adjudication because those theories are not alleged in the complaint. (Reply at pp. 5-6.) (See Government Employees Insurance Company v. Superior Court (2000) 79 Cal.App.4th 95, 98, fn. 4 (“A defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers. [Citation]”) and Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258 (“The complaint limits the issues to be addressed at the motion for summary judgment. The rationale is clear: It is the allegations in the complaint to which the summary judgment motion must respond. [Citation] Upon a motion for summary judgment, amendments to the pleadings are readily allowed. [Citation] If a plaintiff wishes to expand the issues presented, it is incumbent on the plaintiff to seek leave to amend the complaint either prior to the hearing on the motion for summary judgment, or at the hearing itself. [Citation]”).)

Even assuming, arguendo, the Court considered the unpled theories, Plaintiff did not submit admissible evidence creating a triable issue of material fact as to the existence of a joint venture or partnership between Bish and L&B.[3] Instead, the undisputed facts set forth above, including that Bish had no interest in any fees which might be paid to Waks and L&B out of the recovery in the case, if any, or in the sums they might each receive to reimburse them for costs they had expended and Bish did not understand that Waks and L&B had any interest in which she might receive in fees or reimbursement for costs, belie the existence of a partnership or joint venture. (UMF No. 37.) (See Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 370 (“‘A joint venture…is an undertaking by two or more persons jointly to carry out a single business enterprise for profit.’ [Citation] ‘There are three basic elements of a joint venture: the members must have joint control over the venture (even though they may delegate it), they must share the profits of the undertaking, and the members must each have an ownership interest in the enterprise. [Citation.]’ [Citation] ‘Whether a joint venture actually exists depends on the intention of the parties. [Citations.] [¶] … [¶] … [W]here evidence is in dispute the existence or nonexistence of a joint venture is a question of fact to be determined by the jury. [Citation.]’ [Citation]”) and Connor v. Great Western Savings & Loan Association (1968) 69 Cal.2d 850, 863 (“Although the evidence establishes that Great Western and Conejo combined their property, skill, and knowledge to carry out the tract development, that each shared in the control of the development, that each anticipated receiving substantial profits therefrom, and that they cooperated with each other in the development, there is no evidence of a community or joint interest in the undertaking. Great Western participated as a buyer and seller of land and lender of funds, and Conejo participated as a builder and seller of homes. Although the profits of each were dependent on the overall success of the development, neither was to share in the profits or the losses that the other might realize or suffer. Although each received substantial payments as seller, lender, or borrower, neither had an interest in the payments received by the other. Under these circumstances, no joint venture existed.”).) (Emphasis Added.) As argued by Bish, “[t]here is simply no evidence, nor any disputed material fact reflecting that Bish acted, held herself out as, or actually was L&B’s partner, or that any alleges act or omission on her part enabled or caused Plaintiff’s share of the settlement proceeds to be purportedly misappropriated by Layfield.” (Reply at p. 8.) Moreover, Plaintiff did not cite to on-point case law or authority to suggest such “associated attorneys in a separate firm can be liable for the intentional torts of a partner in an associated (but separate) law firm…” (Reply at p. 8.)

Bish’s Motion for Summary Adjudication is GRANTED as to the First Cause of Action for Breach of Contract.

  1. BREACH OF FIDUCIARY DUTY (THIRD CAUSE OF ACTION)

“To establish a cause of action for breach of fiduciary duty, a plaintiff must demonstrate the existence of a fiduciary relationship, breach of that duty and damages.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 182.)

Bish’s primary argument is that she did not have a duty to safeguard Plaintiff’s settlement proceeds, advise the Plaintiff that his attorneys had received his check, or supervise the staff of her co-counsel. (Motion at p. 14.) However, Bish’s characterization of the duty owed by her to Plaintiff is much too narrow.

In the complaint, Plaintiff alleges Defendants, including Bish, “failed to exercise the reasonable care, skill, and diligence in representing [Plaintiff] through the conclusion of the case in facilitating the misappropriation of [Plaintiff’s] settlement funds, by a number of errors and omissions, including but not limited to failing to promptly notify [Plaintiff] when the settlement check in the Underlying Case had been delivered, failing to provide appropriate accounts to [Plaintiff], failing to promptly deliver the settlement funds to [Plaintiff], causing to negotiate the settlement draft without [Plaintiff’s] permission, failing to supervise office staff in the accounting and handling of [Plaintiff’s] settlement, failing to ensure protection of [Plaintiff’s] settlement and by abandoning [Plaintiff] before he received the promised settlement funds from the Underlying Case.” (Complaint ¶ 35.)

Plaintiff also alleges Defendants, including Bish, breached their fiduciary duties to him by “failing to disclose significant developments in the Underlying Case, by placing their own financial interests ahead of [Plaintiff’s] interests, charging [Plaintiff] for unreasonable legal fees and costs, by failing to promptly disclose the receipt of the settlement funds in the Underlying Case, failing to preserve [Plaintiff’s] personal property, failing to promptly account for and disburse to [Plaintiff] the settlement proceeds from the underlying case, failing to ensure the protection of [Plaintiff’s] trust funds pending disbursement, failing to provide supporting documentation for the costs claimed; paying themselves fees out of the settlement proceeds obtained in the Underlying Case without insuring [Plaintiff] received the settlement funds, concealing from [Plaintiff] that [Barrett’s] then law firm Layfield & Barrett had financial problems; concealing that Layfield had misappropriated trust account funds, failing to promptly disclose [Defendants’] errors and omissions…, and misleading [Plaintiff] concerning the reasons for delays in providing the settlement funds and accounting to [Plaintiff]…” (Complaint ¶ 39.)

Here, Plaintiff has sufficiently set forth facts and evidence that Bish owed Plaintiff a duty of care and loyalty by virtue of being his attorney. Plaintiff has presented evidence of an Association Agreement, signed by Bish, Waks, Barrett, and Plaintiff agreeing that Bish will be lead trial counsel and that Bish, Waks, and Barrett agreed to enter into a fee sharing agreement. (Middleton Decl., Exh. C.) Further, Plaintiff has presented evidence that Bish was aware of information regarding the settlement check that she did not communicate to Plaintiff, including information she possessed but did not communicate to plaintiff when it was clear that Plaintiff had not received his funds under the settlement agreement and was asking for them. (See, e.g. Goodman Decl. Exh. C, Exh. 4 Bish0031 [reflecting Bish’s signature on the letter dated August 2, 2016 from defense counsel which stated that the settlement would be issued].) Plaintiff further presented evidence showing that Bish was copied on various email exchanges reflecting that Plaintiff sought itemizations of costs and his missing personal items. (Middleton Decl., Exhs. I-J, M.)

Plaintiff has also presented evidence that Bish received an email from Plaintiff also sent to Waks and Barrett on March 23, 2017 asking why he was charged $100 on August 15, 2016 to pick up his settlement check even though he has not received his check. (Middleton Decl., Exh. S.) The email, which is directed at all three parties including Bish by name, states, “It appears in September, everyone received their fee & cost incurred payments from my settlement check, is this correct? Since the collection of the settlement check, 7 months have elapsed… Why hasn’t there been any attempt made to pay me my portion of the settlement?” (Middleton Decl. Exh. S.) The email further states that the documentation for costs that he was provided did not add up correctly for all parties. (Middleton Decl. Exh. S.) Even more, the email states that “I’m shocked that Mindy Bish and Layfield & Barrett have deducted their cost from my settlement. When bringing Mindy Bish on board, It (sic) was explained to me that she would be of no extra cost to me, and that the only thing to change is the way the attorney fees are divided[….] Please explain to me how I am liable for the cost incurred by the firms of both Mindy Bish and Layfield & Barrett?” (Middleton Decl. Exh. S.)

In an email dated April 19, 2017 that was emailed and directed to all Defendants, including Bish, Plaintiff wrote that “My direct questions continue to go unanswered.[…]The evasive tactics are becoming clear. Michael and Mindy have chosen to not respond to my last emails sent April 5th[.]” (Middleton Decl. Exh. U.). Plaintiff has additionally presented evidence that Bish was copied on the dozens of emails that Plaintiff exchanged with Barrett seeking explanation for the attorneys’ fees, a “Medicare Set-Aside,” and the outstanding check. (Middleton Decl. Exhs. X-Y.)

The evidence presented by Plaintiff directly contradicts Bish’s declaration and her separate statement of facts, wherein she claims that she was not aware that Plaintiff had not received any funds until June 22, 2017. (UMF ¶ 34; Bish Decl. ¶ 12.) In an email dated July 4, 2017 to Bish and Waks, Plaintiff emailed a timeline of the emails that he sent stating that he still had not been paid, and expressing surprise that both Bish and Waks claimed to be unaware that Plaintiff had not been paid nearly one year after the settlement. (Middleton Decl. Exh. CC.)

Bish’s argument lies on the assumption that the only alleged duty it is alleged he owed to Plaintiff, and allegedly breached, was the duty to safeguard Plaintiff’s proceeds or to otherwise supervise the attorneys and staff at Layfield & Barrett. (Motion at p. 14.) However, the Court finds that this articulation of the duty owed to Plaintiff is far too narrow. Bish does not contest that she was Plaintiff attorney, and Plaintiff’s evidence represents that she was associated as a lead trial attorney, despite Bish’s attempts to downplay her role. Bish has not presented any authority or evidence as for why her duty to Plaintiff would have been limited to safeguarding the settlement check.

California courts have long held that “a party's attorney owes the highest fiduciary duty to his or her client.” (People v. Martinez (2009) 47 Cal.4th 399, 420.) Further, “the attorney-client relationship is a fiduciary relation of the very highest character imposing on the attorney a duty to communicate to the client whatever information the attorney has or may acquire in relation to the subject matter of the transaction. [Citations.]” (Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1534, as modified on denial of reh'g (Oct. 12, 2006) citing Beery v. State Bar (1987) 43 Cal.3d 802, 813.)

Further, with respect to Plaintiffs lack of payment despite Bish’s knowledge of such, and in light of the fact that she, herself had already been paid, Plaintiff has provided sufficient documentation of a triable issue of fact. “It is the duty of an attorney to notify his client with reasonable diligence of the collection by him of money due his client, and to promptly pay over the same upon settlement of his fee, and under no circumstances is he warranted in falsely stating that the money has not been received.” (San Francisco Bar Ass'n v. McClellan (1919) 40 Cal.App. 630, 632.)

Although Bish argues that the settlement check was not in her possession, and that Barrett was the “primary” attorney on the case, the Court finds that the presence of co-counsel does not absolve Bish of her fiduciary duty to her client as his attorney. (UMF ¶¶ 12, 22, 25.) Bish owed the same highest level of professional fiduciary duty to Plaintiff at all times. Bish has presented sufficient evidence to create a material disputed issue of fact on whether this duty required Bish to communicate to Plaintiff that the settlement check had been received by Layfield & Barrett, whether Bish breached this duty, and whether this breach was a substantial factor in causing injury to Plaintiff.

Bish’s Motion for Summary Adjudication is DENIED as to the Third Cause of Action for Breach of Fiduciary Duty.

  1. RESCISSION OF FEE AGREEMENT (FIFTH CAUSE OF ACTION)

Business & Professions Code § 6147 provides, in pertinent part, as follows:

(a)

(1)

(2)

(3)

(4) , a statement that the fee is not set by law but is negotiable between attorney and client.

(5) , a statement that the rates set forth in that section are the maximum limits for the contingency fee agreement, and that the attorney and client may negotiate a lower rate.

(b)

In the complaint, Plaintiff alleges that the retainer agreement was later adopted by Bish and Barrett, and that it does not comply with Business & Professions Code § 6147 “since it fails to state the following: a) A statement as to how disbursements and costs incurred in connection with the prosecution or settlement of the claim will affect the contingency fee and the client’s recovery; b) A statement as to what extent, if any, the client could be required to pay any compensation to the attorney on related matters that arise out of their relationship not covered by their contingency fee contract; c) A statement that the fee is not set by law but is negotiable between the attorney and client.” (Compl. ¶ 51.) Plaintiff alleges Defendants are obligated to tender back to him all fees and costs paid out of the settlement and Defendants are limited under quantum meruit principles to reasonable fees and costs. (Compl. ¶ 53.)

The undisputed facts show Plaintiff cannot maintain his action for rescission against Bish. Bish associated into the underlying action in early September 2015, and the underlying action settled on July 22, 2016. (UMF Nos. 6, 16.) Plaintiff never claimed before filing the instant action (on May 29, 2018) that Bish was not entitled to the attorneys’ fees she received for the work she performed on the underlying action. (UMF No. 40.) (See Civil Code §1693 (“A party who has received benefits by reason of a contract that is subject to rescission and who in an action or proceeding seeks relief based upon rescission shall not be denied relief because of a delay in restoring or in tendering restoration of such benefits before judgment unless such delay has been substantially prejudicial to the other party; but the court may make a tender of restoration a condition of its judgment.”).) As argued by Bish, Plaintiff gave notice of the rescission (via the complaint) after the agreement was fully executed by Bish. There is no way restore Bish to the condition in which she would have been but for the contract. (See Joshua Tree Townsite Co. v. Joshua Tree Land Co. (1950) 100 Cal.App.2d 590, 596 (“Rescission is not allowable where the party demanding it cannot or does not restore the other party to the condition he would have been in but for the contract. [Citations]”).)

Plaintiff did not submit admissible evidence creating a triable issue of material fact on this cause of action. Plaintiff argues he did not receive any benefit from Bish’s representation and Bish cannot invoke laches. However, the argument is not supported. Bish “achieved benefit for Plaintiff through all the work she performed on Plaintiff’s behalf-which resulted in a policy limits settlement of the underlying action” and “[i]t is only through the criminal acts of a third party to this action that Plaintiff did not collect the benefits that Bish had achieved [for] his benefit.” (Reply at pp. 10-11.)

In light of the Court’s ruling, Bish’s Motion for Summary Adjudication is GRANTED as to the Fifth Cause of Action.

Dated: November 1, 2019

____________________________________

Hon. Robert S. Draper

Judge of the Superior Court


[1] The complaint alleges that Defendants, including Bish, became parties to the retainer agreement by virtue of the association of attorneys. The retainer agreement is the contract that Plaintiff alleges Bish breached.

[2] Under Former Rule 1-100(B)(1), the definition of law firm included “two more lawyers whose activities constitute the practice of law, and who share its profits, expenses, and liabilities…” (California Practice Guide, Professional Responsibility §5:462.1a.)

[3] “The rights and liabilities of joint venturers, inter se, are governed by the principles applicable to partnerships. [Citations]” (Stodd v. Goldberger (1977) 73 Cal.App.3d 827, 836.) Under a partnership, a party is exposed to joint and several liability for a co-partner’s misappropriation of a third party’s money or property received in the course of the partnership’s business or while acting with the authority of the partnership. (See Blackmon v. Hale (1970) 1 Cal.3d 548, 557.) (See also Corporations Code §§16305(b) (“If, in the course of the partnership’s business or while acting with authority of the partnership, a partner receives or causes the partnership to receive money or property of a person not a partner, and the money or property is misapplied by a partner, the partnership is liable for the loss.”) and 16306(a) (“Except as otherwise provided in subdivisions (b) and (c), all partners are liable jointly and severally for all obligations of the partnership unless otherwise agreed by the claimant or provided by law.”).)