On 11/06/2012 RITA SUMMERFIELD,ETAL filed a Contract - Professional Negligence lawsuit against MICHAEL D MCCRACKEN,ETAL. This case was filed in San Mateo County Superior Courts, Southern Branch Hall Of Justice And Records located in San Mateo, California. The Judges overseeing this case are Foiles, Robert D, Bergeron, Joseph E, Novak, Lisa A, Buchwald, Gerald J, Buchwald, Gerald J. and Novak, Lisa A.. The case status is Disposed - Dismissed.
Disposed - Dismissed
Southern Branch Hall Of Justice And Records
San Mateo, California
Foiles, Robert D
Bergeron, Joseph E
Novak, Lisa A
Buchwald, Gerald J
Buchwald, Gerald J.
Novak, Lisa A.
MICHAEL D. MCCRACKEN
LAW OFFICES OF MICHAEL DMCCRACKEN ,
JENIFER K. GARDELLA
GARDELLA & GARDELLA
MCCRACKEN, MICHAEL D.
LAW OFFICES OF MICHAEL D MCCRACKEN
GARDELLA, JENIFER K.
ROBINSON, RUSSELL A
MURPHY, JAMES A
ROECA, RUSSELL S.
FILING (5) Comment FILED: NOTICE OF HEARING: OSC FOR DISMISSAL AFTER COURT'S RECEIPT OF NOTICE OF SETTLEMENT FILED.
MEMO (3) Comment MPA: MEMORANDUM OF POINTS AND AUTHORITIES FILED BY JENIFER K. GARDELLA GARDELLA & GARDELLA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
MOTION (3) Comment MSJAI: MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION OF ISSUES FILED BY MICHAEL D. MCCRACKEN LAW OFFICES OF MICHAEL D MCCRACKEN AGAINST RITA SUMMERFIELD, ARTHUR SUMMERFIELD.
DECLARATION (4) Comment DEC: DECLARATION IN OPPOSITION TO MOTION TO OMPEL AND FOR SANCTIONS
ORDER (2) Comment O: ORDER SHORTENING TIME FOR MOTION TO CONTINUE SIGNED BY JUDGE VOILES ON 07/25/13, FILED.
DECLARATION Comment DEC: DECLARATION OF KRISTIN L. NICHOLS IN SUPPORT OF DEFENDANTS MOTION TO COMPEL PLAINTIFFS' FURTHER RESPONSES
ATTORNEY Comment SAT: SUBSTITUTION OF ATTORNEY FILED. FORMER ATTORNEY JASON FELLNER REMOVED AS TO MICHAEL D. MCCRACKEN AND REPLACED WITH ATTORNEY RUSSELL S. ROECA.
ANSWER Comment ANS: (S) ANSWER TO COMPLAINT OF SUMMERFIELD FILED BY JENIFER K. GARDELLA GARDELLA & GARDELLA, REPRESENTED BY JAMES A MURPHY
COMPLAINT Comment COM: (S) COMPLAINT FILED
DISMISSAL Comment REQDEA: REQUEST FOR DISMISSAL OF ENTIRE ACTION WITH PREJUDICE FILED AND ENTERED.
NOTICE (6) Comment NS2: NOTICE OF SETTLEMENT FILED BY RITA SUMMERFIELD ARTHUR SUMMERFIELD.
REQUEST (3) Comment REQ: REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT/ADJUDICATION.
DECLARATION (7) Comment DEC: DECLARATION OF RUSSELL S. ROECA IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
FILING (2) Comment FILED: STIPULATION TO SHORTEN THE 75 DAY NOTICE PERIOD TO FILE A MOTION FOR SUMMARY JUDGMENT ETC. FILED.
PROPOSED ORDER (2) Comment POR: PROPOSED ORDER RECEIVED.
PROOF OF SERVICE (4) Comment PSBC: PROOF OF PERSONAL SERVICE OF SUMMONS AND COMPLAINT OF SUMMERFIELD SERVED ON GARDELLA & GARDELLA BY SERVING JENNIFER GARDELLA WITH SERVICE DATE OF 11/28/12
PROOF OF SERVICE (3) Comment PS: PROOF OF SERVICE (PERSONAL) OF SUMMONS AND COMPLAINT OF SUMMERFIELD SERVED ON JENIFER K. GARDELLA WITH SERVICE DATE OF 11/28/12.
COMPLAINT (2) Comment CC: (S) CROSS-COMPLAINT OF LAW OFFICES OF MICHAEL D MCCRACKEN FILED
Disposition: Judgment; Judgment Type; Dispositioned; Party; Name: Comment: 0002 CROSS-COMPLAINT; Party; Name: SUMMERFIELD ARTHUR; Comment: 0002 CROSS-COMPLAINT; Party; Name: SUMMERFIELD, RITA; Comment: 0002 CROSS-COMPLAINT.Read MoreRead Less
Disposition: Judgment; Judgment Type; Dispositioned; Party; Name: GARDELLA & GARDELLA; Comment: 0001 COMPLAINT; Party; Name: GARDELLA JENIFER K.; Comment: 0001 COMPLAINT; Party; Name: Comment: 0001 COMPLAINT; Party; Name: MCCRACKEN, MICHAEL D.; Comment: 0001 COMPLAINT; Party; Name: SUMMERFIELD, ARTHUR; Comment: 0001 COMPLAINT; Party; Name: SUMMERFIELD, RITA; Comment: 0001 COMPLAINT.Read MoreRead Less
Conversion Hearing. Additional Info: Comment JURY TRIAL. TIME ESTIMATE: 15 DAYS 00:00 HOURS.Read MoreRead Less
Jury Trial. Additional Info: Hearing Time 9:00 AM Cancel Reason Vacated Comment Dept: PJ JURY TRIAL. TIME ESTIMATE: 15 DAYS 00:00 HOURS.Read MoreRead Less
Conversion Hearing. Additional Info: Comment MANDATORY SETTLEMENT CONFERENCERead MoreRead Less
Settlement Conference. Additional Info: Hearing Time 01:30 PM Cancel Reason Vacated Comment Dept: 7 MANDATORY SETTLEMENT CONFERENCERead MoreRead Less
Conversion Minute. Additional Info: Comment HOC: HEARING OFF CALENDAR. REASON: PER FAXED LETTER REQUEST FROM MOVING PARTY- CASE HAS SETTLED.Read MoreRead Less
Conversion Hearing. Additional Info: Comment MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION OF ISSUES BY MICHAEL D. MCCRACKEN LAW OFFICES OF MICHAEL D MCCRACKEN AGAINST RITA SUMMERFIELD, ARTHUR SUMMERFIELD.Read MoreRead Less
Motion for Summary of Judgment/Adjudication of Issues. Additional Info: Hearing Time 9:00 AM Cancel Reason Off Calendar Comment Dept: LM MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION OF ISSUES BY MICHAEL D. MCCRACKEN LAW OFFICES OF MICHAEL D MCCRACKEN AGAINST RITA SUMMERFIELD, ARTHUR SUMMERFIELD.Read MoreRead Less
Conversion Action. Additional Info: NOTICE (7) Comment NEDPS: NOTICE OF ENTRY OF DISMISSAL AND PROOF OF SERVICE FILED BY MICHAEL D. MCCRACKEN.Read MoreRead Less
Summons Issued / Filed. Additional Info: SUMMONS Comment S30IF: 30 DAY SUMMONS ISSUED AND FILED.Read MoreRead Less
Civil Case Cover Sheet. Additional Info: COVERSHEET Comment CCS: CIVIL CASE COVERSHEET RECEIVEDRead MoreRead Less
Conversion Minute. Additional Info: Comment *FEE: 121106-0511-CK 194/ 435.00 PAYMTRead MoreRead Less
Complaint. Additional Info: COMPLAINT Comment COM: (S) COMPLAINT FILEDRead MoreRead Less
Financial info for MCCRACKEN, MICHAEL D. : Case Payment Receipt # 201304230753 MCCRACKEN, MICHAEL D. $150.00Read MoreRead Less
Financial info for MCCRACKEN, MICHAEL D. : Transaction Assessment $150.00Read MoreRead Less
Financial: MCCRACKEN, MICHAEL D.; Total Financial Assessment $150.00; Total Payments and Credits $150.00Read MoreRead Less
Financial info for SUMMERFIELD, RITA : Case Payment Receipt # 201211060511 SUMMERFIELD, RITA $435.00Read MoreRead Less
Financial info for SUMMERFIELD, RITA : Transaction Assessment $435.00Read MoreRead Less
Financial: SUMMERFIELD, RITA; Total Financial Assessment $435.00; Total Payments and Credits $435.00Read MoreRead Less
Russell A. Robinson, 163937
Law Office of Russell A. Robinson EJD 345 Grove Street, 1st Floor ' AN MATEO COUNTY San Francisco CA 94102 .
FAX: 415.431.4526 NOv 0,6 2012
Counsel for Plaintiffs RITA SUMMERFIELD and
RITA SUMMERFIELD and ATRHUR No.SUMMERFIELD, o COMPLAINT FOR LEGAL Plaintiffs, MALPRACTICE
MICHAEL D. McCRACKEN, LAW OFFICES OF MICHAEL D. McCRACKEN, JENIFER K. GARDELLA, GARDELLA & GARDELLA, and DOES 1-40,
Defendants. B‘Bﬁ EF’ AX
[Jury Trial Demandqd]
PLAiNTIFFS HEREBY FILE THIS COMPLAINT AS FOLLOWS:
1. Plaintiff RITA SUMMERFIELD and ATRHUR SUMMERFIELD are persons who at all times material hereto resided in the County of Santa Clara, State of California.
2. MICHAEL D. McCRACKEN and his firm, LAW OFFICES OF MICHAEL D.
McCRACKEN (form unknown), are named as defendants herein. On information and belief,
retention was February 4, 2011. A written contract or fee agreement was prepared by McCracken, but the agreement was never signed by Plaintiffs.
7. McCracken, in seeking to represent Plaintiffs, promised that the case he would handle would go to trial by June 2011. He explained to Plaintiffs that they were entitled to priority under California law because both Plaintiffs are, and were at all times relevant herein, well over 65 years of age, with Arthur in his 80’s. Additionally, as explained by McCracken, they were further entitled to priority because both Plaintiffs suffered from cancer and Arthur was at the time undergoing cancer treatment and therapy. Thus, McCracken told both Plaintiffs they were in fact entitled to priority, and on information and belief McCracken used this information to induce Plaintiffs to act as described herein.
8. Further, McCracken promised Plaintiffs that the case he would file on their behalf would never go to mediation, he would take the matter to trial immediately, it was worth between $5 million and $10 million because of several factors including the elder abuse to which Plaintiffs had been subjected and the nature of the fraud which had been perpetrated, and that his skills as an attorney would carry the day against the wrongdoers. On information and belief, McCracken made these promises and representations to Plaintiffs in order to induce Plaintiffs to retain McCracken and to induce Plaintiffs to pay a sizeable retainer up front to McCracken.
9. In reliance of McCracken’s promises, Plaintiffs agreed to retain McCracken and his “associate” Gardella, and to pay them $20,000 in advance. Plaintiffs paid this $20,000.
10. Litigation against the parties responsible for defrauding Plaintiffs was filed in the San Mateo County Superior Court on April 4, 2Q1 1, Summerfield, et al., v. Yadegar, et al.(No. CIV504682; the “Underlying Action”). That initial complaint named BENIS G YADEGAR, ROSEMARY YADEGAR, RE/MAX ESTATE PROPERTIES, AMERICA ONE PROPERTIES INCORPORATED, VALLEY OF CALIFORNIA , INC. (dba COLDWELL BANKER), KIWI & CO, PLM LENDER SERVICES, INC., CORNERSTONE TITLE COMPANY, PRIVATE CAPITAL FUND, LLC, LINDA GAN (aka LINDA HUANG), JASON LIAO, and ROBIN GAN (aka EE HAN GAN). Linda Gan, Jason Liao, and Robin Gan had sold the subject Belmon
properties to Plaintiffs in June/July 2010. The deal or transaction had been arranged by BENIS
= O VO 00NN DR WN e
G. YADEGAR, ROSEMARY YADEGAR, RE'MAX ESTATE PROPERTIES, AMERICA ONE PROPERTIES INCORPORATED, and VALLEY OF CALIFORNIA, INC. Each of these defendants on information and belief made money on the transaction.
11. Inaddition, BENIS G YADEGAR, ROSEMARY YADEGAR, RE/MAX ESTATE PROPERTIES, AMERICA ONE PROPERTIES INCORPORATED had made money from Plaintiffs a.md their adult son Eddie Summerfield on several other transactions which turned out to be fraudulent, such as lending money to a church client of the Yadegars in San Jose and lending over $200,000 to Benis Yadegar personally. All of these transactions took place in 2010 and McCracken was made aware of these transactions at the time he made the above promises and representations to Plaintiffs.
12. The Underlying Action never went to trial in June 2011. That case never went to trial, ever. Instead, McCracken, Gardella, and each of them forced Plaintiffs into mediation, which took place on November 10, 2011. At the mediation, Plaintiffs were forced to make an offer to settle by McCracken and Gardella. Despite the fact that no discovery had been done in the case, McCracken and Gardella told Plaintiffs the offer to settle was the best Plaintiffs could hope to do in the case; it would never be better. This result was a far cry from promises and representations which induced Plaintiffs to enter the attorney-client relationship and to advance $20,000 to Defendants. The offer required the underlying defendants to pay $50,000 to Plaintiff; and to reverse the June/July 2010 real property transactions so that Plaintiffs would no longer own the worthless Belmont properties and would have clear title to their home and other real properties which had been used as collateral to fund the $500,000 purchase of the worthless Belmont lots. The case eventually settled on these terms in late 2011, and was approved by the Superior Court as a good-faith settlement in January 2012.
13. Thus, the gross value of the settlement of the Underlying Action was $550,000.
14. What Plaintiffs did not receive in settlement was the other $200,000 they had lost in connection with the Belmont property purchase, the huge damages for elder abuse McCracken
had promised, finance fees, lost value of the securities liquidated, lost expectation profits from
the Belmont land purchase, the money they had paid out-of-pocket to finance the loan(s) [which amount exceeded $70,000 through the date of settlement], and other damages.
15. Gardella, McCracken, and each of them failed to convert defaults entered against Linda Gan, Jason Liao, and Robin Gan into a final judgment despite many requests from Plaintiffs, offers by Plaintiffs and their family members to assist in any way possible, and repeated promises by Gardella and McCracken to complete this process.
16. Despite many requests for an accounting of the monies collected, including the initial $20,000 paid by Plaintiffs and the $50,000 collected via settlement, Gardella, McCracken, and each of them never provided said accounting. Plaintiffs did not agree Gardella, McCracken, and each of them would be able to retain all of the $50,000 collected as part of the settlement in the Underlying Action. When Plaintiffs demanded money and/or an accounting, Gardella told Plaintiffs that Plaintiffs really owed Gardella and McCracken more than $50,000. McCracken told Plaintiffs that if Plaintiffs could not pay to McCracken and Gardella an additional $130,000 (approximately) which McCracken and Gardella claimed was owed, McCracken and Gardella would agree to a lien or some other form of guarantee against Plaintiffs’ estate so that when one of the plaintiffs died the attorneys would be paid.
17. Despite many requests for proof or accounting as to how this money was owed, McCracken and Gardella failed to produce any evidence substantiating the claim to this money.
FIRST CAUSE OF ACTION:
18. Plaintiffs hereby reallege each and every allegation contained in all of the foregoing and following paragraphs, as if fully set forth herein.
19. McCracken, Gardella, and each of them committed legal malpractice, a negligent failure to use skill and care a reasonably careful attorney would use in similar circumstances as alleged in this complaint, and but for said negligence Plaintiffs would not have suffered damages
alleged herein and would have obtained a better result in the Underlying Action.
alleged herein and would have obtained a better result in the Underlying Action. o 0 9N D BWN
o 0 9N D BWN
= O O 00NNO
20. Plaintiffs were harmed and injured as alleged herein by said negligence. Plaintiffs would have retained a better result if Attorneys and each of them had acted as a reasonably careful attorney. But for the negligence of said attorneys, Plaintiffs would not have inter alia settled for much less than their case was worth, would have received damages for elder abuse, may have received a sizeable insurance payment from Plaintiffs’ homeowners’ policy carrier, and would not have received dunning notices from San Mateo County in connection with property taxes owed on the Belmont properties.
21. Defendants were negligent in prosecuting the above-mentioned action.
22. But for the negligence alleged, Plaintiffs would have had a better result in the Underlying Action.
SET FORTH BELOW.
23. Plaintiffs hereby re-allege each and every allegation contained in the foregoing paragraphs as if fully set forth herein.
24. The Attorneys undertook fiduciary duties to Plaintiffs as defined, inter alia, by law, in the Rules of Professional Conduct and in related statutes, to Plaintiffs when they agreed to provide legal services regarding the Underlying Action and the subsequent disputes.
25. Defendants breached said duty in the herein described respects. Each and every one of said breaches by said Attorneys was made in a conscious disregard of the plaintiff’s rights. Plaintiffs have asked for accountings, repeatedly, of all funds received from and/or on behalf of Plaintiffs and Defendants have refused to provide said accounting. A member attorney of the State Bar of California is required to maintain “complete records of all funds, . . ., and other properties of a client coming into the possession of the member or law firm and render appropriate accounts to the client regarding them” pursuant to California Rules of Professional
Conduct, Rule 4-100(B)(3).
Conduct, Rule 4-100(B)(3).= O VO 0NN D R WN e
= O VO 0NN D R WN e
32. Defendants, and each of them, did not perform competent investigation or representation in the underlying matter.
33. Defendants, and each of them, did not use their best skill and due diligence in representing Plaintiffs. An implied term of the agreement required Defendants to use their best skill and due diligence in representing Plaintiffs; Defendants breached this part of their agreement with Plaintiffs.
34, Defendants, and each of them, breached the contract with Plaintiffs by
committing the acts alleged above. 35. Asadirect, legal, and proximate result of the breaches by Defendants, and each o
them, Plaintiffs suffered and will continue to suffer substantial financial losses and damage caused by the conduct of Defendants and each of them.
FOURTH CAUSE OF ACTION:
36. Plaintiffs re-allege and incorporate by reference all preceding paragraphs.
37. As aresult of the relationship between Plaintiffs and Defendants, and each of them, expressed and implied promises made in connection with that relationship, and acts, conduct, and communications resulting in these implied promises, said Defendants promised to act in good faith toward and deal fairly with Plaintiffs requiring, inter alia, the following:
1. Each party in the relationship act with good faith toward the other concerning all matters related to the relationship;
2. Each party in the relationship act with fairness toward the other concerning all matters arising from the relationship;
3. No party take any action to unfairly prevent any other party to the relationship from obtaining the benefits of the relationship;
3. No party take any action to unfairly prevent any other party to the relationship from obtaining the benefits of the relationship; 4. Defendants, and each of them, would comply with their own prom- ises, representations, and developed customs in dealing with Plaintiffs;
4. Defendants, and each of them, would comply with their own prom- ises, representations, and developed customs in dealing with Plaintiffs;
5. Defendants, and each of them, would not misappropriate or subve Plaintiffs’ expectations in the agreement; and,
6. Defendants, and each of them, would give Plaintiffs’ interests as much consideration as they gave their own.
The conduct by Defendants, and each of them, was wrongful, in bad faith, and
was a violation of said Defendants’ legal duties. Plaintiffs further allege that said Defendants
breached the covenant of good faith and fair dealing when they acted as alleged above.
The breaches of the covenant of good faith and fair dealing by Defendants, and
each of them, were a substantial factor in causing damage to Plaintiffs. As a direct, legal, and
proximate result of said breaches, Plaintiffs lost substantial benefits in an amount to be proven.
WHEREFORE, PLAINTIFFS PRAY FOR RELIEF AS SET FORTH BELOW.
General Damages and Special Damages lost in the Underlying Action in excess o
$2,000,000 against all defendants and each of them according to proof.
General Damages for the misrepresentations and fraudulent inducements made by
Defendants in connection with the Underlying Action, in excess of $1,000,000 against all
defendants and each of them according to proof.
4 S5 6. 7
Pre-judgment interest on all damages according to law and proof.
Disgorgement of unearned fees, estimated to be $70,000.
Refund of costs wasted by and through Attorneys, estimated to be $10,000. Attorneys’ fees and costs of suit, pursuant to California Civil Code section 1717.
Damages for elder abuse available under California Welfare & Institutions Code
sections 15610.07, 15610.30, et seq.
An accounting of all monies paid to the Attorneys and all money collected by
Attorneys in connection with the representation of Plaintiffs.