Opposition Objections

Cal. Super. - 6th Dist.March 30, 2021

ANTHONY J. CALERO, ESQ. SBN: 194454 2055 Junction Avenue, Suite 138 San Jose, California 95131 Telephone: (408) 879-9039 Facsimile: (408) 879-9327 Attorney for TRAVIS H. WHITFIELD SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA LIMITED JURISDICTION 10 ll 12 13 14 15 16 TRAVIS H. WHITFIELD Plaintiff, vs. MICHAEL DELMONICO, Defendant. ) CASE NO.: 21CV381503 ) ) ) ) ) ) ) Date: July 15, 2021 ) Time: 9:00 a.m. ) Dept.: 7 ) PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO DISMISS COMPLAINT 17 18 19 20 21 22 23 24 1. BACKGROUND FACTS AND PROCEDURAL HISTORY On or about May I, 2019 at the Law Offices of Travis H. Whitfield, Inc., located at 2055 Junction Avenue, Suite 138- San Jose, CA, Plaintiff and Defendant entered into a written contract entitled "Attorney-Client Fee Agreement: (hereinatter "the Contract"). A true and correct copy of the Contract is attached hereto and incorporated herein as Exhibit A. Pursuant to the terms of the Contract, Plaintiff agreed to provide those legal services reasonably required to represent Client in the following matter: Divorce/Dissolution schon 25 26 2013-1-FL-165366. 27 Pursuant to the terms of the Contract, Defendant agreed to pay fees and other charges as PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO DISMISS COMPLAINTI- Electronically Filed by Superior Court of CA, County of Santa Clara, on 6/28/2021 11:00 AM Reviewed By: A. Nakamoto Case #21CV381503 Envelope: 6736218 21CV381503 Santa Clara - Civil A. Nakamoto billed on a monthly basis. The Contract also provides that the prevailing party shall be entitled to recover reasonable attorney's fees necessitated by any legal action to enforce the terms of the agreement.Plaintiff ha performed all of the acts, services, and conditions required by the contract to be perforined on his part. In rendering the services herein alleged, Plaitiff ha incurred costs and expenses on behalfof Defendant in the sum of $ 8,637.79. 10 12 13 14 15 Plaintiff has demanded Irom Defendant payment of such compensation and reimbursement of costs and expenses in the amount $ 8,637.79, but defendant has not paid any part of that sum and there is now due and owing from Defendant to Plaintiff the sum of $8,637.79. Because the parties had a dispute regarding the claimed amounts due under the contract, the matter was submitted by the parties to the Santa Clara County Bar Association Fee Arbitration Committee. 16 The parties agreed to and participated in non binding fee arbitration on January 6, 2021 17 before arbitrators Timothy D. Widman, Mark Shem, Michael Crow. The arbitrators found in favor ofDefendant Michael Delmonico and issued a net award 19 to Mr. Delmonico in the amount of $ 18,584.65. 20 The Notice of Arbitration Award was received by the parties via e-mail transmission on 21 March 4, 2021. 22 23 24 25 26 27 Shortly after receipt of the award, plaintiff contacted defendant regarding his intent to reject the award and offered to have the matter mediated. Plaintiff received no response from defendant regarding mediation of the proceedings. Plaintiff filed and served his "Rejection of Award and Request for Trial after Attomey- Client Fee Arbitration" on March 30, 2021. The Rejection ofAward and Request for Trial was filed concurrently with Plaintiff s PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO DISMISS COMPLAIN'P2- Complaint for Breach of Contract, Open Book Account, and Account Stated, on March 30, 2021. Defendant filed and served this Motion to Dismiss (Demurrer) Complaint and Uphold Arbitration Award on May 6, 2021. 5 2. LEGAL ARGUMENT 10 I. Defendant's Motion is untimely and should be rejected on that basis. Pursuant to California Code ofCivil Procedure $430.40(a), "A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, may demur to the Complaint." (Emphasis added). Plaintiff s Complaint was filed and served on plaintiff on March 30, 2021. Defendant's Demurrer was filed and served on May 6, 2021, as such, defendant's 12 13 14 15 16 17 18 19 20 Demurrer is untimely and should be rejected. II. Defendant failed to meet and confer prior to the filing of the demurrer. California Code ofCivil Procedure $430.41(a), "Beforefiling a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer" (Emphasis added). Defendant never met and conferred, either in person or by telephone, prior to filing the demurrer. 21 22 23 24 25 26 27 Additionally, California Code ofCivi!Procedure $430.41(a)(3), "The demurring party shall file and serve vnth the demurrer a declaration stating either of the following: (A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer. (B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO DISMISS COMPLAINT3- III. PlaintifFs Complaint states valid causes of action and all of the factual elements of each cause of action. 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Ifdefendant's demurrer for failure to state a cause of action is considered on it's merits, the motion still must fail because the Complaint identifies and pleads all of the factual elements of claims for Breach of Contract, Account Stated, and an Open Book Account. Paragraph four of plaintiff s Complaint identifies the written contract entered into between the parties and the contract itself is attached to the Complaint as Exhibit A. Paragraph eleven of the Complaint identifies and alleges how defendant breached the contract and the resulting damage incurred by plaintiff. Paragraph 13 of the Complaint identifies and alleges the "open book account" and costs and expenses advanced by plaintiffon that account. Paragraph 16 of the Complaint identifies and alleges that on or about April 27, 2020 an account was stated in writing between the parties showing defendant's balance due. In sum, Plaintiff s Complaint clearly states facts that constitute valid and legal causes of action for Breach of Contract, Account Stated, and an Open Book Account. Plaintiffs Demurrer that the Complaint "fails to state a valid legal claim" is false and must be rejected by the court. IV. Defendant's remaining claims that the plaintiff failed to exhaust his administrative remedies and that the Complaint is frivolous, malicious, and without merit are affirmative defenses that should be raised in defendant's Answer to Complaint. First off, Plaintiff s Complaint and this opposition has outlined the steps taken by plaintiffbefore filing this Complaint. The parties engaged in non binding judicial arbitration. Plaintiff suggested thereafter that the parties mediate their dispute. With no response to the offer to mediate, plaintiff was forced to file the instant Complaint. A determination of whether the Complaint, which states three valid causes of action, is frivolous, malicious, or without merit is triable issue of fact and should be determined as such. Again, defendant is free to raise these claims, and any other affirmative defense, as part of his PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO DISMISS COMPLAIN'F4- Answer to the Complaint. 4. CONCLUSION Defendant's Demurrer is untimely and defendant failed to meet and confer with 4 plaintiff s counsel prior to filing of the Demurrer and the motion should be denied for that reason. If the merits of defendant's demurrer are considered, the motion must still fail because the Complaint clearly states facts that constitute valid and legal causes of action for Breach of Contract, Account Stated, and an Open Book Account. For all of the foregoing reasons, plaintiffrequests that defendant's Demurrer be denied and that defendant be ordered to file and serve an Answer to the Complaint within 15 days of the hearing on this motion. 12 13 Dated: June 28, 2021 14 15 T ONY J. CALERO, ESQ ttorney for Plaintiff 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO DISMISS COMPLAINT-5-