Complaint Unlimited Fee Applies

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

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 E-FILED 3/30/2021 2: 1 6 PM JAMES McMANIS (40958) Clerk 9f Court TYLER ATKINSON (257997) Superlor Court 0f CA, ANDREW PARKHURST (324173) County of Santa Clara MCMANIS FAULKNER 21 cv381 51 7 a Professional Corporation Reviewed By: V_ Taylor 50 West San Fernando Street, 10th Floor San Jose, California 951 13 Telephone: (408) 279-8700 Facsimile: (408) 279-3244 Email: tatkinson@mcmanislaw.com Attorneys for Plaintiff, Phunware, Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA Phunware, Inc. Case No.: 21 CV381 51 7 Plaintiff, COMPLAINT FOR NEGLIGENCE VS. Wilson Sonsini Goodrich & Rosati, DEMAND FOR JURY TRIAL Professional Corporation, DOES 1-25 Defendants. COMPLAINT FOR NEGLIGENCE, Case No.: A VOW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NATURE OF CASE 1. Thi‘s is a professional negligence action by a client against its former counsel, Wilson Sonsini Goodrich & Rosati (“WSGR”). THE PARTIES 2. Plaintiff, Phunware, Inc. (“Phunware”) is a Delaware corporation with its principal place of business in Austin, Texas. 3. Defendant, WSGR, is a Professional Corporation registered in Delaware and with its principal place of business in Palo Alto, California. 4. Plaintiff is ignorant of the true names and capacities of defendants sued herein as DOES 1-25 and therefore sues these defendants by such fictitious names. Plaintiff will amend this complaint to allege their true names and capacities when the same has been ascertained. Plaintiff is informed and believes and thereon alleges that each of the fiCtitiously names defendants is responsible in some manner for the occurrences herein alleged and'that Plaintiffs damages as alleged herein were proximately caused by such defendants. At all times mentioned, defendants acted as an agent of defendant WSGR. VENUE 5. Venue is proper in this Court because the acts and omissions complained of occurred in Santa Clara County, and defendant WSGR is located in Santa Clara County. The amount in controversy exceeds $25,000. LCTS. FIRST CAUSE OF ACTION (NEGLIGENCE) Against All Defendants 6. WSGR holds itself out t0 the public and advertises itself as a law firm that “confront[s] challenging Claims” and touts an “expansive and growing litigation team.” WSGR boasts that it employs “accomplished commercial litigation attorneys” and represents clients in a range 0f “comprehensive commercial disputes.” 7. Phunware entrusted WSGR t0 represent its interests. COMPLAINT FOR NEGLIGENCE, Case NO.: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. Throughout the representation, WSGR and its lawyers assumed a duty t0 exercise the skill and care 0f a reasonable attorney in the same or similar circumstances. 9. During the representation, WSGR failed to exercise the reasonable standard of care owed t0 Phunware. On multiple occasions, WSGR breached its duty 0f care and committed material errors that proximately caused damage to Phunware. 10. Based on advice provided by WSGR, Phunware sued Uber Technologies, Inc. for breach of contract. Phunware was thereafter named as a cross-defendant in the action. Among its negligent acts and omissions, WSGR failed t0 advise Phunware t0 tender Phunware’s defense of these claims under applicable insurance policies. The insurers issuing these policies would have accepted such tender and would have paid for the defense and settlement 0f the litigation. Phunware’s insurers denied the defense under the basis that the claims were not timely reported under the policies. The policies required timely tender 0f the claim 0r loss of coverage if the claims were not timely noticed t0 the insurer. Failure totimely notify the insurers 0f the claim resulted in a loss of coverage and defense even if the claims were covered or potentially covered. WSGR negligently failed to advise Phunware 0n Coverage issues ' relating t0 the litigation and negligently failed t0 advise Phunware to seek the advice of coverage counsel on the suit. Timely notice to Phunware’s insurers would have resulted in payment of defense fees and costs, by the insurers, incurred by Phunware in defending the Uber cross complaint, earlier resolution of the litigation 0n more favorable terms, a larger contribution of the settlement payment by the insurers, payment bythe insurers 0f defense fees and costs, and resolution and defense of the action at substantially less expense to Phunware. 11. On information and belief, tender of these policies would have resulted in an earlier resolution 0f the litigation, 0n more favorable terms, and at lesser expense to Phunware. 12. In addition, WSGR failed t0 advise Phunware that it could and should name a different defendant to the breach 0f contract lawsuit. On information and belief, the failure t0 name this party as a defendant t0 the breach 0f contract lawsuit resulted in an expensive and avoidable countersuit. These failures also deprived Phunware of valuable claims against the non-party, in an amount t0 be determined according t0 proof. 4 D COMPLAINT FOR NEGLIGENCE, Case NO.: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13. In addition, in the aforementioned litigation, the court entered a protective order Which allowed certain information to be identified as “attorney’s eyes only” (AEO). WSGR thereafter failed t0 appropriately challenge particular AEO designations. On information and belief, such challenges would have been successful. On information and belief, the information subj ect to the AEO designations would have been materially beneficial to Phunware but for the AEO protections. An attorney exercising a reasonable standard 0f care would have appropriately challenged these designations under the circumstances. 14. In addition, on information and belief, one or more 0f the WSGR attorneys assigned to the representation 0f Phunware were not fit or competent t0 perform the work. On information and belief, WSGR knew 0r should have known the attorney was not fit or competent t0 perform the work. On information and belief, WSGR knew 0r should have known that this unfitness or incompetence created a particular risk t0 Phunware. 15. WSGR failed to represent Phunware with diligence. WSGR failed t0 undertake necessary work t0 protect Phunware's interests, and thereby caused harm t0 Phunware. 16. In its advice and counsel t0 Phunware, WSGR breached the duty 0f competence, including but not limited t0 the examples given above. These breaches proximately caused damage t0 Phunware. 17. On repeated occasions and throughout its representation of Phunware, WSGR ' breached the duty t0 communicate with Phunware, failing to convey critical information or conveying materially erroneous information, all to the detriment of Phunware. 18. On information and belief, the work performed by WSGR was excessively billed, and the rates and hours charged were unreasonable for the services performed. Junior attorneys were not properly supervised and were billed at excessive rates. Moreover, WSGR failed t0 meet its duty of care as t0 keep Phunware reasonably apprised 0f the work performed, or t0 be performed, and the amounts incurred and reasonably expected t0 be incurred. 19. WSGR failed t0 transmit Phunware’s entire file t0 its new counsel, to the detriment of Phunware. COMPLAINT FOR NEGLIGENCE, Case NO.: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20. The above list 0f examples is non-exhaustive. As a direct and proximate cause 0f WSGR’S negligence, including without limitation the examples identified above, Phunware suffered harm to its business, including but not limited to substantial monetary losses, excessive and unnecessary attorney’s fees, lost indemnity contributions, and lost business opportunities, among other things. PRAYER FOR RELIEF Phunware has been damaged by the foregoing acts 0f defendant WSGR and DOES 1-25, and each 0f them, in an amount according to proof at trial. Plaintiff seeks as relief, without limitation, the following: 1. For compensatory and consequential damages, and any other damages available t0 Phunware according t0 proof; 2. For restitution in the amount 0f defendant’s unjust enrichment according t0 proof; 3. For interest t0 the maximum extent allowed by law; 4. For costs of suit, including attorney’s fees and costs, and any other amounts incurred by Phunware in prosecuting this lawsuit; and 5. For such other and further relief as this Court deems just and proper. DATED: March 30, 2021 MCMANIS FAULKNER MCMANISTYE ATKINSON A REW PARKHURST Attorneys for Plaintiff, Phunware, Inc. COMPLAINT FOR NEGLIGENCE, Case No.2