Amended Complaint Filed No FeeCal. Super. - 6th Dist.November 23, 2020CHARLES W. WAGNER 871 Whitethorne Dr. San Jose, CA 95128 (408) 244-6222 charleswwagner@sbcglobal.net CSBA 101467 Attorney for Plaintiffs AJANG AMIRNEZAMI and SHOHREH AZARFAR SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 10 12 13 14 15 16 AJANG AMIRNEZAMI and SHOHREH AZARFAR, Plaintiffs, vs. JOSEPH W. MCCARTHY, an individual; JOSEPH W. MCCARTHY, a law corporation; and DOES 1-20, inclusive, Defendants. ) Case No. 20CV373904 ) ) FIRST AMENDED ) COMPLAINT FOR DAMAGES FOR ) ) 1. Breach of written contract ) 2. Professional negligence ) 3. Breach of fiduciary duty ) ) ) ) LIMITED CIVIL CASE (Less than $ 10,000) ) 17 18 19 20 21 22 23 25 26 27 28 JURISDICTION AND VENUE 1. This is an action for damages for Professional Negligence and Breach of Fiduciary Duty. This action arises out of professional services provided by Defendants in Santa Clara County, California. 2. Jurisdiction in this Court is proper because each of the causes of action set forth in this Complaint arises under California law, and the amount of damages sought is within the jurisdiction of the Superior Court. Venue is proper in Santa Clara County because one or more of the acts, breaches, and wrongs giving rise to the causes of action asserted herein occurred or were to be performed in Santa Clara County (the location of the Underlying Action, defined below), and because Defendants're located in California. PARTIES 3. Plaintiffs AJANG AMIRNEZAMI and SHOHREH AZARFAR (collectively "Plaintiffs") FIRST AMENDED COMPLAINT FOR DAMAGES Electronically Filed by Superior Court of CA, County of Santa Clara, on 1/21/2021 7:21 AM Reviewed By: Y. Chavez Case #20CV373904 Envelope: 5681232 20CV373904 Santa Clara - Civil Y. Chavez 10 12 13 14 16 18 19 20 21 22 23 25 26 27 28 are married individuals residing in Santa Clara County, California. 4. Defendant JOSEPH W. MCCARTHY ("MCCARTHY") is an individual and an attorney licensed by the State of California. At all relevant times to this Complaint, MCCARTHY conducted a law business out of 400 Reed St., Santa Clara, CA 95050. Plaintiffs are informed and believe that he resides, and at all times hereimentioned resided, in Carmel Valley, Monterey County, California. 5. Defendant JOSEPH W. MCCARTHY, a Law Corporation ("MCCARTHY CORP.") Corp.") is a professional corporation. At all relevant times to this Complaint, MCCARTHY utilized this entity in connection with conducting his law business at 400 Reed St., Santa Clara, CA 95050. 6. Defendants DOES 1-20, inclusive, are the fictitious names of those Defendants whose true names are unknown to Plaintiffs, and whose true capacities, whether as individuals, corporations, partnerships, joint ventures, and/or associations, are also unknown to Plaintiffs, and when such true names are ascertained, Plaintiffs will amend this Complaint by inserting said true names in the place of said fictitious names in accordance with Code of Civil Procedure Section 474. Plaintiffs are informed and believe and thereon allege that whenever and wherever in this Complaint any Defendants are the subject of any charging allegations by Plaintiffs, said DOES are also responsible in some manner for the events and happenings and it shall be deemed that said Defendants, DOES 1-20, inclusive, and each of them, are likewise the subject of said charging allegations herein by Plaintiffs. 7. Plaintiffs are informed and believe and thereon allege that at all times herein mentioned, Defendants DOES 1-10 were the agents, servants, and employees of their co- Defendants and in doing the things hereinafter mentioned, were acting in the scope of their authority as such agents, servants, and employees with permission and consent from their co- Defendants. 8. Defendants DOES 11-20 are persons whose capacities are unknown to Plaintiffs. GENERAL ALLEGATIONS 9. Plaintiffs hired MCCARTHY and MCCARTHY CORP. in or around January 29, 2020 to represent them in connection with their disputes with Waterpivot Landscaping Co. FIRST AMENDED COMPLAINT FOR DAMAGES 10 12 13 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ("Waterpivot") and the lawsuit known as Milad Anvar v, Amirnezami, Santa Clara County Superior Court Action no. 18CV330056 ("the Underlying Action"), in accordance with the written contract, a copy of which is attached hereto as Exhibit "A". Plaintiffs had hired Waterpivot to perform certain landscape improvements to their home. Waterpivot sued them, claiming a balance due on the contract. Plaintiffs cross-complained, alleging major defects in the work and damage to their property and the cost of their bond. 10. On or about February 7, 2020, Plaintiffs paid Defendants the sum of $5000. 11. Defendants failed to provide any legal services of benefit to Plaintiffs and were replaced as their counsel during June 2020. 12. By letter dated August 31, 2020, Plaintiffs demanded the return of ali sums they had paid Defendants ($5000), but that letter was ignored. FIRST CAUSE OF ACTION (Breach of Written Contract (Against MCCARTHY and MCCARTHY CORP.) 13. Plaintiffs refer to and incorporate by this reference all of the allegations in the preceding Paragraphs, above. 14. As set forth in the General Allegations, MCCARTHY and MCCARTHY CORP. breached the contract alleged in paragraph 9 (Exhibit "A"). 15. As a result of such breach, Plaintiffs have been damaged in the sum of $5000 or more. WHEREFORE, Plaintiffs pray for relief on this cause of action as set forth below. SECOND CAUSE OF ACTION (Legal Malpractice against All Defendants) 16. Plaintiffs refer to and incorporate by this reference all of the allegations in the preceding Paragraphs, above. 17. Defendants, and each of them, were attorneys for Plaintiffs in the Underlying Action, and thus owed a duty to use the skill and care that a reasonably careful attorney would have used in similar circumstances. 18. Defendants, and each of them, breached that duty, including but not limited to failing FIRST AMENDED COMPLAINT FOR DAMAGES 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3. For such other and further relief as the ou deems proper. fes W. Wagner, Attorney for Plaintiffs AJANG AMIRNEZAMI and SHOHREH AZARFAR Dated: January 21, 2021 to perform any services that advance the Underlying Action. 19. Defendants'egligent conduct caused Plaintiffs harm because they incurred damages as a result of the delay. WHEREFORE, Plaintiffs pray for relief on this cause of action as set forth below. THIRD CASE OF ACTION (Breach of Fiduciary Duty against All Defendants) 20. Plaintiffs refer to and incorporate by this reference all of the allegations in the preceding Paragraphs, above. 21. Defendants, and each of them, were attorneys for Plaintiffs in the Underlying Action, and thus owed Plaintiffs a fiduciary duty of utmost care. 22.1n addition to the failure to exercise their fiduciary duty to exercise reasonable care and act competently, as set forth above in the General Allegations, in violation of the Rules of Professional Conduct, Rule 1.1 and former Rule 3-110, Defendants, and each of them, also breached their fiduciary duty to Plaintiffs, as follows: a. MCCARTHY and MCCARTHY CORP. failed to keep their clients informed of the status of the case; b. MCCARTHY and MCCARTHY CORP failed to prosecute the case in a professional manner; and PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for judgment as follows: 1. For compensatory damages, according to proof, in the amount of $5000 or more; 2. For costs of suit incurred herein; and 26 27 28 FIRST AMENDED COMPLAINT FOR DAMAGES CCEXHIBIT “A” ATTORNEY- CLIENT FEE CONTRACT This document ("the Agreement") is the written fee contract that California law requires lawyers to have with their clients. The law firm of Joseph W. McCarthy, A Law Corporation ("ATTORNEY"), will provide legal services to Ajang Amirnezami and Shohreh Azarfar (" CLIENT" ) on the terms set forth below. The Agreement is executed in duplicate with each party receiving an executed original. The Agreement is intended to comply with California law. 1. CONDITIONS. The Agreement will not take effect, and ATTORNEY will have no obligation to provide legal services, until the CLIENT returns a signed copy of this Agreement. 2. SCOPE OF SERVICES. CLIENT is hiring ATTORNEY to provide legal services in connection with matters concerning Milad Anvar and for any other matters CLIENT shall assign to ATTORNEY. ATTORNEY will take reasonable steps to keep CLIENT informed of progress and to respond to CLIENT'S inquiries. If a court action is filed, ATTORNEY will represent CLIENT through trial and post-trial motions. After judgment, ATTORNEY will not represent CLIENT on appeal or in execution proceedings unless ATTORNEY and CLIENT make a different agreement in writing. 3. DISCLOSURE REGARDING ERRORS AND OhllISSION INSURANCE. Attorney maintains errors and omission insurance covering the services to be rendered under the Agreement. 4. CLIENT'S DUTIES. CLIENT agrees to be truthful with ATTORNEY, to cooperate, to keep ATTORNEY informed of developments, to abide by the Agreement, to pay ATTORNEY'S bill on time and to keep ATTORNEY advised of CLIENT'S address, telephone number and whereabouts. 5. MINIMUll/I FEE/DEPOSIT. CLIENT will pay ATTORNEY an initial deposit of $5,000.00. This initial deposit will be ATTORNEY'S minimum fee, paid in exchange for ATTORNEY'S agreement to represent CLIENT. This minimum fee is non-refundable, but ATTORNEY'S hourly charge will be creditecf against it. Whenever CLIENT'S deposit is exhausted, ATTORNEY reserves the right to demand further deposits, each up to a maximum of $5,000.00. Once a trial or arbitration date is set, ATTORNEY will require CLIENT to pay all sums then owing to ATTORNEY and to deposit the ATTORNEY'S fees that ATTORNEY estimates will be incurred in preparing for and completing the trial or arbitration, as well as the jury fees or arbitration fees likely to be assessed Those sums may exceed the maximum deposit. CLIENT agrees to pay all deposits after the initial deposit within ten (10) days of ATTORNEYS demand. Except for the minimum fee, any unused deposit at the conclusion of ATTORNEY'S services will be refunded. 6. LEGAL FEES AND BILL.ING PRACTICES. CLIENT agrees to pay by the hour at our prevailing rates for the time spent on CLIENT'S matter by our legal personnel. Our current hourly rates are as follows: $450.00 per hour for services of Joseph W. McCarthy $250.00 per hour for services of associate attorneys $ 150.00 per hour for paralegal services Hourly billing rates may be changed upon written notice to CLIENT. Time is billed in tenths of hours (6 minutes) and the minimum charge is .2 of an hour (12 minutes). We will charge CLIENT for the time spent on telephone calls relating to CLIENT'S matter, including calls with CLIENT, opposing counsel or court personnel. We will charge CLIENT for time spent in meetings, court hearings and other proceedings as well as time spent waiting in court and elsewhere, and for travel time both local and out of town. CLIENT understands and acknowledges that any discussion or cursory estimate given by ATTORNEY to CLIENT regarding fees and costs due for services rendered is only an estimate, and the fees and costs may be greater than any certain amount mentioned. The number of hours expended, and resulting in fees and costs, vary greatly depending on working relationship, attitude and demeanor of CLIENT, opposing party, and opposing counsel. In addition, over the course of the action, attitudes can greatly change. These factors, among others, make it impossible to estimate an ultimate fee and cost amount with any reasonable accuracy. In the agreement and understanding between ATTORNEY and CLIENT, there is no limitation as to fees and costs. 7. COSTS AND OTHER CHARGES. (a) In General. ATTORNEY will incur various costs and expenses in performing legal services under the Agreement. CLIENT agrees to pay ATTORNEY for those costs and expenses in addition to the hourly fees. These costs and expenses commonly include process servers'ees, fees fixed by law or assessed by courts and other agencies, court reporters'ees, messenger and other delivery fees, postage parking and other local travel expenses, contract photocopying and other reproduction costs. (b) Out of Town Travel. CLIENT agrees to pay transportation, meals, lodging and all other costs of any necessary out-of-town travel by ATTORNEY. CLIENT will also be charged the hourly rate for the time ATTORNEY spends traveling. (c) Experts, Consultants, and Investigators. To aid in the preparation or Attorney-Client Fee Contract presentation of CLIENTS case, it may become necessary to hire expert witnesses, consultants or investigators. ATTORNEY will not hire such persons unless CLIENT agrees to pay their fees and charges. ATTORNEY will select any expert witnesses, consultants or investigators to be hired. 8. BILLING STATEMENTS. ATTORNEY will send CLIENT periodic statements for fees and costs incurred. If no attorney fees or costs are incurred for a particular month, or if they are minimal, the statement may be held and combined with that for the following month unless a statement is requested by CLIENT. Each statement will be due within ten (10) days of its date. Past due accounts are subject to interest charges of 1.5% per month (18% per year). CLIENT may request a statement at intervals of no less than thirty (30) days. If CLIENT requests a statement, ATTORNEY will provide one within ten (10) days. CLIENT will have the sole responsibility for payment of the above fees regardless of any court order which may direct payment to come from the other party, and regardless of the amount of fees ordered by the Court, if any. If fees are ordered paid by the adverse party and are actually paid, the sums so paid will be credited to the CLIENT'S account. Bills will be rendered monthly. Any objection to any billing will be brought to ATTORNEY'S attention within thirty (30) days of the billing; otherwise, the bill is agreed to be accepted as sent. CLIENT agrees that the ATTORNEY may elect to stop work on the file if the account is not paid in full within thirty (30) days after the billing date, or if an additional retainer requested is not paid. 9. DISPUTE RESOLUTION. If a dispute arises between ATTORNEY and CLIENT regarding attorney fees as set out in the Agreement and ATTORNEY files suit in any court other than small claims court, CLIENT will have the right to stay that suit by timely electing to arbitrate the dispute under Business and Professions Code Sections 6200 et seq., in which event ATTORNEY must submit the matter to arbitration. The prevailing party in any arbitration or litigation between CLIENT and firm will be entitled to reasonable attorney's fees and costs. 10. ATTORNEY'S LIEN. By signing this fee agreement, CLIENT hereby grants ATTORNEY a lien for all unpaid attorney fees and costs advanced on all claims and causes of action that are the subject of ATTORNEY'S representation of CLIENT under the Agreement and on all proceeds of any recovery obtained, whether by settlement, award, order, or judgment. CLIENT is aware, and acknowledges, that this lien may significantly impair CLIENT'S interest because ATTORNEY may be able to delay payment of any recovery or settlement funds to CLIENT until any disputes with ATTORNEY about unpaid attorney fees and costs advanced have been resolved. CLIENT acknowledges that CLIENT has been advised to seek independent legal advice about granting Attorney-Client Fee Contract ATTORNEY this lien and has had a reasonable opportunity to do so. By signing this fee agreement, CLIENT represents that CLIENT has either obtained legal advice about this lien or has decided that it was unnecessary to do so. 11. DISCHARGE AND WITHDRAWAL. CLIENT may discharge ATTORNEY at any time, ATTORNEY may withdraw with CLIENT'S consent or with good cause. Good cause includes: CLIENT'S breaching the Agreement, CLIENT'S refusal to cooperate with ATTORNEY, or to follow ATTORNEY'S advice on a material matter, or any fact or circumstance that would render ATTORNEY'S continuing representation unlawful or unethical. CLIENT further agrees to execute a Substitution of Attorney allowing ATTORNEY to withdraw. When ATTORNEY'S services conclude, all unpaid charges will immediately become due and payable. After ATTORNEY'S services conclude, ATTORNEY will, upon CLIENT'S request, deliver CLIENT'S file to CLIENT aiong with any funds or property belonging to CLIENT in ATTORNEY'S possession. 12. DISCLAIMER OF GUARANTEE. Nothing in the Agreement, and nothing in ATTORNEY'S statements to CLIENT, will be construed as a promise or guarantee about the outcome of CLIENT'S matter. ATTORNEY makes no such promises or guarantees. ATTORNEY'S comments about the outcome of CLIENT'S matter are expressions of opinion only. 13. TAX ADVICE IS EXCLUDED FROM THE AGREEMENT. ATTORNEY has advised Client that any settlement or judgment obtained as a result of the representation may be partly or wholly taxable. In addition, the payment of attorney fees hereunder has tax consequences. ATTORNEY has informed CLIENT that any and all tax advice is specifically excluded from the scope of the services ATTORNEY will provide under the Agreement. ATTORNEY has informed CLIENT that he is not an expert in tax law, and has recommended that client obtain advice from a tax practitioner concerning the tax consequences of any recovery or any other tax matter. 14. EFFECTIVE DATE. The Agreement will take effect when CLIENT has performed the conditions stated in paragraph 1. But the effective date of the Agreement will be retroactive to the date ATTORNEY first performed services. The date of the Agreement is for reference only. Even if the Agreement does not take effect, CLIENT will be obligated to pay ATTORNEY the reasonable value of any services ATTORNEY may have performed for CLIENT. DATED 3~a t + cf7 gdo2t=t EIN ff 77-0531627 oseph W. McCarthy, President Attorney-Client Fee Contract I have read and understood the foregoing terms, and agree to them as of the date Joseph W. McCarthy, A Law Corporation first provided services. DATED: By: Ajang Amirnezami DATED: By: Shohreh Azarfar Attorney-Client Fee Contract I have read and underst od the foregoing terms, and agr e to them as of the date Joseph W. M ar h A Law C p ion first provided services. DATED: B A ang A i zam DATED: B S eh A AttorneyvCIient Fee Contract 5