Complaint Limited Up to 10K

Cal. Super. - 6th Dist.November 23, 2020

\OOONQUI-PUJNt-k NNNNNNNNNt-tt-tt-tt-tt-tt-tt-tt-tt-tt-t OOQQUl-PUJNHOKOOOQQUI-PUJNHO E-FILED 11/23/2020 12:00 AM CHARLES W. WAGNER Clerk Of Court 871 Whitethorne Dr. Superior Court of CA, San Jose, CA 95128 County of Santa Clara (408) 244-6222 ZOCV373904 charleswwagner@sbcglobal.net CSBA 101 467 Attorney for Plaintiffs AJANG AMIRNEZAMI and SHOHREH AZARFAR SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA AJANG AMIRNEZAMI and SHOHREH AZARFAR, Case No. 20CV373904) 3 Plaintiffs, ) COMPLAINT FOR DAMAGES FOR ) vs. ) 1. Breach of written contract ) 2. Professional negligence JOSEPH W. MCCARTHY, an individual; ) JOSEPH W. MCCARTHY, a law corporation; ) ) ) ) ) and DOES 1-20, inclusive, 3. Breach of fiduciary duty Defendants. LIMITED CIVIL CASE (Less than $10,000) 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' are located in California. PARTIES 3. Plaintiffs AJANG AMIRNEZAMI and SHOHREH AZARFAR (collectively "Plaintiffs") COMPLAINT FOR DAMAGES Reviewed By: L. Quach-Marcellana \OOONQUI-PUJNt-k NNNNNNNNNt-tt-tt-tt-tt-tt-tt-tt-tt-tt-t OOQQUl-PUJNHOKOOOQQUI-PUJNHO 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. COMPLAINT FOR DAMAGES \OOONQUI-PUJNt-k NNNNNNNNNt-tt-tt-tt-tt-tt-tt-tt-tt-tt-t OOQQUl-PUJNHOKOOOQQUI-PUJNHO (“Waterpivot”) and the lawsuit known as Milad Anvar v. Amirnezami, Santa Clara County Superior Court Action no. 180V330056 (“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 all 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 A|| 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 COMPLAINT FOR DAMAGES \OOONQUI-PUJNt-k NNNNNNNNNt-tt-tt-tt-tt-tt-tt-tt-tt-tt-t OOQQUl-PUJNHOKOOOQQUI-PUJNHO to perform any services that advance the Underlying Action. 19. Defendants' negligent 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 A|| 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. In 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 3-1 10, Defendants, and each of them, also breached theirfiduciary 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 or more; 2. For costs of suit incurred herein; and 3. For such other and further relief as the Court deems proper. Dated: November 1, 2020 Charles W. Wagner, Attorney for Plaintiffs AJANG AMIRNEZAMI and SHOHREH AZARFAR COMPLAINT FOR DAMAGES