Garcia Juarez Construction, Inc. vs. Felahy

Motion for Summary Judgment/Adjudication

Cal. Super. - 4th Dist.March 4, 2015

© 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O FREEMAN MATHIS & GARY, LLP GRETCHEN S.CARNER (CA BAR NO. 132877) 2615 Pacific Coast Highway, Suite 300 Hermosa Beach, California 90254 TELEPHONE: (310)937- 2066 | FAX: (310)937-2064 E-mail: gcarner@fmglaw.com Attorneys for Defendants ALLEN B.FELAHY, an individual; OSCAR RAMIREZ, an individual; and FELAHY LAW GROUP, APC, a Professional Law Corporation SUPERIOR COURT OF THE STATE OF CALIFORNIA FORTHE COUNTY OF ORANGE GARCIA JUAREZ CONSTRUCTION, ) CaseNo. 30-2015-00775077-CU-NP-CJC INC., a California Corporation, ) ) [Assigned to Judge Theodore Howard] Plaintiff, ) ) DEFENDANTSALLENB.FELAHY, VS. ) OSCAR RAMIREZ AND FELAHY ) LAW GROUP,MSoTCE OF ALLEN B.FELAHY, an individual; ) MOTION AND MOTION FOR OSCAR RAMIREZ, an individual; ) SUMMARY JUDGMENT,OR IN THE FELAHY LAW GROUP, APC, a ) ALTERNATIVEFOR SUMMARY Professional Law Corporation; ANDRADE) ADJUDICATIO EoS; & ASSOCIATES, APLC, aProfessional ) MEMORANDU POINTS AND Law Corporation, RICHARD B. ) AUTHORITIES|N SUPPORT ANDRADE, an individual: BRETT K. ) WISEMAN,an individual; DAVID M. ) [Filed concurrently with Separate ZELIGS, an individual; and DOES 1 ) Statement of Material Undisputed Facts; through 100, inclusive, ) Declaration of Gretchen S. Carner and ) Declaration of Richard Andrade and Defendants. Appendix of Evidence] Date: September 28, 2017 Time: 1:30 p.m. Dept: C-18 RESERVATION ID. 72587603 Complaint Filed: March 4, 2015 Trial Date: September 18, 2017 1 DEFENDANTS ALLEN B.FELAHY, OSCAR RAMIREZ AND FELAHY LAW GROUP, APC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, ETC. © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O TO ALL PARTIESAND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on September 28, 2017, at 1:30 p.m. or as soon thereafter as the matter may be heard in Department C18 of the above-referenced Court, located at 700 Civic Center Drive West, Santa Ana California 92701, Defendants Allen B. Felahy, Oscar Ramirez and Felahy Law Group, APC (collectively, the “Felahy Attorneys”) will move for summary judgment on Plaintiff Garcia Juarez Construction’s (“Plaintiff”) Complaint. This motion is filed pursuant to Code of Civil Procedure section 437¢ and is made on the ground that no triable issue of material fact exists as to any cause of action in Plaintiff's Complaint. Specifically, the Felahy Attorneys assert that judgment should be granted against Plaintiff with respect to its Complaint on the following grounds: (1) Plaintiff's cause of action for legal malpractice fails against all the Felahy Attorneys because Plaintiff cannot establish the elements of causation or damage essential to its claim for legal malpractice; (2) Plaintiff's cause of action for breach of fiduciary duty is duplicative of its cause of action for legal malpractice and should be dismissed; (3) Plaintiff's cause of action for breach of fiduciary duty fails against all the Felahy Attorneys because Plaintiff cannot establish the elements of causation or damage; and (4) Plaintiff's cause of action for “common count” fails because Plaintiff cannot prove causation or damages to support its causes of action for legal malpractice or breach of fiduciary duty against the Felahy Defendants as a matter of law. If for any reason summary judgment cannot be had, the Felahy Attorneys will move in the alternative for an order adjudicating that: Issue No. 1: Plaintiff's cause of action for legal malpractice against the Felahy Attorneys fails because it cannot establish the elements of causation or damages; Issue No. 2: Plaintiff's cause of action for breach of fiduciary duty against the Felahy Attorneys fails because it cannot establish the elements of causation or damages; 2 DEFENDANTS ALLEN B. FELAHY, OSCAR RAMIREZ AND FELAHY LAW GROUP, APC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, ETC. O O 0 0 J N O A w n B A W N = N D N N N N N N N N = e e = e a e a e a e d e a C O N N A 0 A W D H O V N N O D N R W = o o Issue No. 3: Plaintiff cannot prove the elements of common count against the Felahy Attorneys; Issue No. 4: Plaintiff cannotstate a claim for legal malpractice against Oscar Ramirez because it cannot establish the elements of causation or damages; Issue No. 5: Plaintiff cannotstate a claim for breach of fiduciary duty against Oscar Ramirez because it cannot establish the elements of causation or damages; and This motion will be based upon Code of Civil Procedure §437c, on the ground that there is no triable issue of material fact as to the summary judgment sought, or on the alternative ground that there is no triable issue of material fact as to the summary adjudication of issues sought. This motion is based on this notice of motion, the attached memorandum of points and authorities, the declarations of Gretchen S. Carner and Richard Andrade, the separate statement of undisputed material facts, the appendix of supporting evidence and the pleadings, records, and files in this action, and upon such further oral or documentary evidence that may be presented at the time of the hearing of this motion. Dated: July 12, 2017 FREEMAN MATHIS & GARY, LLP TEHEN §,CARNER Attorneys for Defendants ALLEN B. FELAHY,an individual, OSCAR RAMIREZ, an individual; and FELAHY LAW GROUP, APC, a Professional Law Corporation 3 DEFENDANTS ALLEN B. FELAHY, OSCAR RAMIREZ AND FELAHY LAW GROUP, APC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, ETC. © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O TABLE OF CONTENTS INTRODUCTION citiesreese sreestresses 1 FACTUAL BACKGROUNDvoicessnes 2 A. TheUnderlying Castillo ACHON .cccccveiiiiceccecece2 B The Andrade Attorneys’ Representation of Plaintiff ...........ccccovvviiiininnn, 2 C. The Felahy Attorneys’ Representation of Plaintiff ...........cccoooviiiiiinnnn, 4 D Settlement of the Castillo ACHON .....ccooveiriiiiices5 1. The Castillo Plaintiffs’ Never Demanded Less than $700,000 to Settle the Case Before the Admissions. .........c.ccccvvvennn 5 2. The Castillo Plaintiffs’ Never Demanded Less than $700,000 to Settle the Case After the AdmIiSSiONS. .......cccovvvviiiiiininne, 6 E. The Legal Malpractice Case...iissseersseers 6 ARGUMENTotrasesebesa 1 A. THE SUMMARY JUDGMENT STANDARD cocci,1 B. Plaintiff's Claim for Legal Malpractice Has No M erit and Should Be DiSMISSEd......ccoviiiiiiiiiiise s7 L. Plaintiff Cannot Establish Causation, i.e., That “But For” The Felahy Attorneys’ Alleged Negligence, It Would Have Obtained a ore Favorable Result. .........ccccoovvviviinnn, 8 2. Plaintiff's Legal Malpractice Claim Fails Because It Cannot Prove That the Damages Allegedly Suffered W ere Caused by The Felahy Attorneys’ Negligence. ......c.cccoovvvvnne, 10 C. Plaintiff Cannot Prevail on its Breach of Fiduciary Duty Cause OF ACTION.ee t 12 L. Plaintiff's Breach of Fiduciary Duty Cause of Action is An Impermissible Duplication of its L egal Malpractice Cause Of ACHION. c.viiiiiiic 12 2. There is No Evidence of any Breach of Fiduciary Duty. ................. 13 3. Plaintiffs Have No Damages Based on A ny Purported Breach of Fiduciary DULY.cc.15 D. Plaintiff Cannot Prevail on Its Cause of Action for Common COUNT.e c15 i DEFENDANTS ALLEN B.FELAHY, OSCAR RAMIREZ AND FELAHY LAW GROUP, APC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, ETC. © 0 0 d N o o u t B A Ww W N O B N N N N N N N D N N N N N F P B B B B 2 B B B B F B B B 0 ~ N o O U l B A W N F P O O V W o O N N o O U R E W N P O o IV. E. Plaintiff Has No Evidence to Prove That Oscar Ramirez Is individually Liable for Legal Malpractice or Breach of FIAUCIANY DULY.oiisneerns 16 CONCLUSION bs17 DEFENDANTS ALLEN B. FELAHY, OSCAR RAMIREZ AND FELAHY LAW GROUP, APC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, ETC. © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O TABLE OF AUTHORITIES Cases Barbara A. v. John G. (1983) 145 Cal.App.3d 369......ccccviiiiiiiiiiiiiicscs 12 Barnard v. Langer (2003) 109 Cal.App.4th 1453. ...ciii ii9 Beal Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th 50 .......cccccevvviiiiniiiciie, 13 Berryman v. Merit Property Management, Inc. (2007) 152 Cal.App.4th 1544 ................ 15 Broadway Victoria, LLC v. Norminton, Wiita & Fuster (2017)10 CalLAPP.5th 1185...reeserears 12,13 Budd v. Nixen (1971) 6 Cal.3d 195 .....cooviiiiiiiir 1,7 Campbell v. Magana (1960) 184 Cal.App.2d 751civics8 David Welch Co. v. Erskine & Tulley (1988) 203 Cal.App.3d 884 ........ccovvvviiviiiiiinnnn, 13 Expansion Pointe Properties Ltd. P'ship v. Procopio, Cory, Hargreaves & Savitch, LLP (2007) 152 Cal.APP.4th 42 .....ccveeiiecccesses 13 Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445........ccocveiiiiiiiiicicee, 15 ld. 9 Jalali v. Root (2003) 109 Cal.App.4th 1768.......ccccviiiiiiiiiiiescrsere8,9 Kurinji v. Hanna and Morton (1997) 55 Cal.App.4th853...8 Loubev. Loube (1998) 64 Cal.App.4th 421occ8 Marshak v. Ballesteros (1999) 72 Cal.App.4th 1514...9,10 M attco Forge, Inc. v. Arthur Y oung & Co. (1997) 52 Cal.A pp.4th 820........ccccevivviriininnn, 8 Mirabito v. Liccardo (1992) 4 Cal.App.4th AL...civics13 Namikas v. Miller (2014) 225 Cal.App.4th 1574cco8,10 Orrick Herrington & Sutcliffe LLP v. Sup.Ct. (Malcolm), 107 Cal.A pp.4th L0521strere12 Reliance National Indemnity Co. v. General Star Indemnity Co. (1999) 72 CalLAPP.ATh 1083... iieeerenee 7 Viner v. Sweet (2003) 30 Cal.4th 1232 ......cvooiiiicieeee ee8 Statutes Code of Civil Procedure 8437C (P)(2) cuvvivrieiiiiiiiiiii sissies essere sreeress 7 Code of Civil Procedure §437C(C) ..ovuvviiiiiiii sis7 iii DEFENDANTS ALLEN B. FELAHY, OSCAR RAMIREZ AND FELAHY LAW GROUP, APC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, ETC. © 0 0 d N o o u t B A Ww W N O B N N N N N N N D N N N N N F P B B B B 2 B B B B F B B B 0 ~ N o O U l B A W N F P O O V W o O N N o O U R E W N P O o Other Authorities 2 Mallen & Smith, Legal Malpractice (2017) § 15.3, pp. 660-661 .......cccccevvviviriiivininnnn. 12 iv DEFENDANTS ALLEN B.FELAHY, OSCAR RAMIREZ AND FELAHY LAW GROUP, APC'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, ETC. © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O MEMORANDUM OF POINTS AND AUTHORITIES l. INTRODUCTION This is a “settle and sue” legal malpractice case which fails as a matter of law because Plaintiff Garcia Juarez Construction (“Plaintiff”) cannot prove causation or damages to support its causes of action for legal malpractice, breach of fiduciary duty or common count. Plaintiff has sued Felahy Law Group and two attorneys that worked for that firm, Allen B. Felahy and Oscar Ramirez (collectively referred to herein as the “Felahy Attorneys”). The case arises from the Felahy Attorneys’ representation of Plaintiff in an underlying employment dispute entitled Castillo etal. v. Garcia J uarez Construction, Inc. et al., Orange County Superior Court Case No. 30-2012-00587927 matter (the “Castillo A ction”). Itis undisputed that a mistake was made by Defendants A ndrade & Associates, Richard Andrade and Brett Wiseman (the “Andrade Attorneys”) by failing to timely respond to request for admissions served upon Plaintiff in the Castillo Action. Later, the Felahy Attorneys took over the case and were unable to prevent the unanswered admissions from becoming deemed admitted. Despite the admissions, the Felahy Attorneys will establish with admissible undisputed evidence that Plaintiff cannot, as a matter of law, prove that the admissions caused the damagesit seeks. Plaintiff claims that but for the admissions, it would not have had to pay $700,000 to settle the Castillo Action or have been required to pay attorneys’ fees and costs to Felahy Law Group to defend the Castillo Action. To prevail on its causes of action for legal malpractice and breach of fiduciary duty, Plaintiff must prove causation and damages. (Budd v. Nixen (1971) 6 Cal.3d 195, 200.) It cannot do so in this case. Moreover, Plaintiff's representative, | ames Jackson (“Jackson”) has admitted in deposition that Defendant Oscar Ramirez did not do anything wrong, and did not cause 1 The Andrade Attorneys were dismissed from this case on J une 25, 2015. 1 DEFENDANTS ALLEN B.FELAHY, OSCAR RAMIREZ AND FELAHY LAW GROUP, APC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, ETC. © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O any harm to Plaintiff. Ramirez was notinvolved with the request for admissions issue at all. He assisted Felahy in litigating the case and in settlement. Therefore, summary judgment should be entered in favor of the Felahy Attorneys, or at the very least Defendant Oscar Ramirez. II. FACTUAL BACKGROUND A. TheUnderlying Castillo Action Plaintiff was sued in a labor dispute case entitled Castillo et al. v. Garcia J uarez Construction, Inc. et al., Orange County Superior Court Case No. 30-2012-00587927 matter (the “Castillo Action”). (Undisputed M aterial Fact (“UF”) 1) Plaintiff isa construction company owned by J ames Jackson (“Jackson”). (UF 2) The Castillo Plaintiffs were seven men who claimed that they were employed on public works projects by Plaintiff and were not paid “prevailing wages,” compensable drive time, for overtime, for missed meals and rest periods, and were provided inaccurate wage statements. (UF 3) The Castillo Plaintiffs alleged that they were retaliated against and wrongfully terminated for complaining about the violations. (UF 4) B. TheAndrade Attorneys’ Representation of Plaintiff Plaintiff first retained Defendants Andrade & Associates, Richard B. Andrade (“Andrade”) and Brett Wiseman to represent it in the Castillo Action in August 2012. (UF 5) According to the allegations of the Castillo Action and the Castillo Plaintiffs’ discovery responses, each of the Castillo Plaintiffs sought over $400,000 in unpaid wages, penalties, fines and attorneys’ fees for an approximate total of $2.8 million. (UF 6) During the time that A ndrade represented Plaintiff in the Castillo Action, he met on several occasions with Frost and J ackson to discuss the Castillo Action. (Declaration of Richard B. Andrade (“Andrade Decl.”), 97.) During one of their initial meetings, Frost and J ackson explained to Brett Wiseman and A ndrade that Plaintiff failed to properly pay prevailing wages to the Castillo Plaintiffs and were expecting to have to pay some amount to settle the Castillo Action. (Andrade Decl., 7.) After the initial meeting, A ndrade asked Jackson to perform an internal audit to get a handle on the potential exposure for Plaintiff. 2 DEFENDANTS ALLEN B. FELAHY, OSCAR RAMIREZ AND FELAHY LAW GROUP, APC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, ETC. © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O (Andrade Decl., 97.) Subsequently, Jackson told Andrade that his audit indicated Plaintiff's potential exposure, in its best-case scenario, to be estimated to be somewhere between $400,000 and $500,000. (Andrade Decl., 97.) Andrade discussed with Jackson and Frost that because Plaintiff had not complied with the payment of prevailing wages to its employees, Plaintiff had liability and should seek to settle the matter at the earliest opportunity. (Andrade Decl., 18.) While Andrade & Associates represented Plaintiffs in the Castillo Action, on January 18, 2013, each of the seven plaintiffs in the Castillo Action served identical discovery requests on Plaintiff; Form Interrogatories, Special Interrogatories, Requests for Admissions and Request for Production of Documents. (UF 7) The responses were due on February 22, 2013. (UF 8) The Request for Admissions focused on obtaining admissions of liability for failing to pay overtime, prevailing wages, and providing appropriate breaks. (UF 9) The request for admissions did not seek admissions to any specific amount of unpaid wages or damages and did not seek admissions about the Castillo Plaintiffs" wrongful termination claims. (UF 10) In February 2013, officials from the Orange County District Attorney's office (“DA”) seized all of Plaintiff's computers and paper payroll-related records pursuant to a subpoena. (UF 11) The DA was investigating Plaintiff for failure to pay prevailing wages to its workers, including the Castillo Plaintiffs, as required on Public Works contracts. (UF 12) The Conclusion in the Statement of Probable Cause attached to the subpoena states: CrushingCo. SupersGeorgeFrostaid1msckson.areengaging in a hichincludesmtiotefelonyvioiatans ofstealing. valine thotwertsigned Under thepenaltyofperiCry(L15() FC).2ndsLbritied falsified records to the City of Santa Ana, City of Huntington Beach and City of Fullerton (115(a) PC). (See Exhibit C, Subpoena, p. 18) 3 DEFENDANTS ALLEN B. FELAHY, OSCAR RAMIREZ AND FELAHY LAW GROUP, APC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, ETC. © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O In February 2013, Jackson advised A ndrade that without the payroll records, he could not help to prepare responses to the discovery. (Andrade, Decl., 912.) Wiseman requested an extension of time to respond to the outstanding discovery, and Donahoo granted Plaintiff an opened ended extension of time pending settlement discussions. (Andrade Decl., 913.) Because an open-ended extension of time to respond to the discovery had been granted, no responses were prepared by Andrade & Associates to the pending discovery. (Andrade Decl., 113.) On March 25, 2013, the Castillo Plaintiffs filed motions to compel responses to the discovery including a motion to have the Request for Admissions deemed admitted. (Andrade Decl., 914.) The hearing date for these motions was M ay 16, 2013. (Andrade Decl., 114) After the Castillo Plaintiffs filed their motions to compel, Jackson instructed Andrade to file nine motions to compel further responses to discovery from the Castillo Plaintiffs instead of working on responses to the request for admissions. (Andrade Decl., 915.) Soon thereafter, Andrade & Associates’ representation of Plaintiff ended on May 3, 2013, when Jackson on behalf of Plaintiff substituted Allen B. Felahy of Felahy Law Group in as counsel of record. (UF 13) C. The Felahy Attorneys’ Representation of Plaintiff W hen the Felahy Attorneys took over the case, the May 16, 2013 hearing on the Castillo Plaintiff's Motion to Deem the Request for Admissions A dmitted was on calendar. The Andrade Attorneys had filed an opposition, including the Declaration of Brett Wiseman who admitted fault for failure to timely respond to the request for admissions and explained that the DA had seized Plaintiff's payroll records “creating extreme difficulty in preparing responses to the discovery requests.” (UF 14) The motion to deem the admissions admitted was granted and the Felahy Attorneys immediately advised Jackson. (UF 15) Plaintiff requested the Felahy Attorneys to file a motion to vacate the order deeming the admissions admitted which was denied on A ugust 22,2013. In August 2013, the Felahy Attorneys advised | ackson that the motion to vacate 4 DEFENDANTS ALLEN B. FELAHY, OSCAR RAMIREZ AND FELAHY LAW GROUP, APC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, ETC. © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O the order deeming the admissions admitted was denied. (UF 16) Therefore, by August 22, 2013, Plaintiff knew that the Felahy Attorneys were unable to fix the request for admissions problem. (UF 15, 16) Defendant Oscar Ramirez had no personal involvement in handling the motions relating to the request for admissions. (UF 17) In addition, Jackson admitted during his deposition that he had no complaints about Mr. Ramirez's work on the case and that Mr. Ramirez did not steal money, reveal any confidences and was not disloyal. (UF 18) D. Settlement of the Castillo Action 1. The Castillo Plaintiffs’ Never Demanded L ess than $700,000 to Settle the C ase B efore the Admissions. Before the admissions, the Castillo Plaintiffs collectively sought unpaid wages, penalties, fines and attorneys’ fees for a total of $2.5 million. (Ex. M, Deposition of Allen B. Felahy (“Felahy Depo.”), p. 40: 7-11) Jackson told A ndrade that he estimated Plaintiff's exposure on the Castillo A ction to be somewhere between $400,000 and $500,000. (UF 19) Andrade advised Plaintiff that they had a losing case because some wages were not paid and that they should try to settle the case. (UF 20) During Andrade’s representation of Plaintiff in the Castillo Action, the Castillo Plaintiffs’ counsel, Richard Donahoo, never communicated any formal settlement demand. (UF 21) During Andrade’s last discussions with Donahoo, prior to being substituted out as counsel of record for Plaintiff, Donahoo was still talking about the settlement amount being in excess of $1,000,000.00. (UF 22) Again, before the admissions, Jackson told Felahy that Plaintiff probably owed some money to the Castillo Plaintiffs. (UF 23) Felahy recommended that to cap the wage claim damages and the potentially large attorneys’ fee award, Code of Civil Procedure § 998 Offers of Comprise could be served. (UF 24) Jackson calculated amounts to offer in settlement to each of the seven Castillo Plaintiffs, which totaled $160,000. (UF 25) The settlement offers were served on May 7, 2013. (UF 26) The settlement offers did not include attorneys’ fees, for which motions would have to be filed after acceptance of the 5 DEFENDANTS ALLEN B. FELAHY, OSCAR RAMIREZ AND FELAHY LAW GROUP, APC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, ETC. © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O offer. (UF 27) Felahy estimated that the Castillo Plaintiff's requested attorneys’ fees would be between $200,000 to $400,000. (Ex. M, Felahy Depo., p. 267:2-8, 282:20-25, 283:1-3.) Although Jackson could not recall how the settlement amounts were arrived at, Felahy testified that he, George Frost and J ackson estimated a worst-case scenario based on hours worked by the Castillo Plaintiffs and hourly wages underpaid. (Ex. M, Felahy Depo., p. 262:13-25, 263:1-8.) 2. The Castillo Plaintiffs’ Never Demanded L ess than $700,000 to Settle the C ase After the Admissions. By letter dated February 7, 2014, the Castillo Plaintiffs made a formal written settlement demand of $995,000. (UF 28) The trial date was April 28, 2014. According to the settlementletter, the Castillo Plaintiffs asserted that their unpaid wage claims totaled $750,000, liquidated damages totaled $750,000, statutory penalties would be $140,000 and attorneys’ fees were $900,000, for a total of $2,540,000. (UF 29) The Castillo Plaintiff's counsel contended that even if they could only get an award of unpaid wages in the amount of $300,000, liquidated damages would be $300,000, penalties would be $140,000, and he would seek $900,000 in attorneys’ fees, making the total damage award $1.6 million. (UF 30) In response to the Castillo Plaintiffs’ settlement demand, Plaintiff was willing to pay $475,000. (Ex. K, Felahy Depo., p. 40: 7-9) Felahy recommended settlement of the case primarily due to the exposure to pay a multiplied attorneys’ fees award and limited funds available under the Plaintiff's bond. Jackson approved settlement of the case for $700,000. (UF 31) Plaintiff and the Castillo Plaintiffs agreed to settle the Castillo Action for $700,000. (UF 32) E. Thel egal Malpractice Case Plaintiff alleges causes of action for legal malpractice, breach of fiduciary duty and “common count” against the Felahy Attorneys. (UF 33) Plaintiff alleges that the Felahy Attorneys were negligent in failing to undo the admissions. Plaintiff alleges that the 6 DEFENDANTS ALLEN B. FELAHY, OSCAR RAMIREZ AND FELAHY LAW GROUP, APC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, ETC. © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O Felahy Attorneys breached their fiduciary duties by failing to fix the request for admissions problem and then continuing to represent Plaintiff without a conflict waiver. Plaintiff also alleges that the Felahy Attorneys steered Plaintiff to David Zeligs who then gave it a biased evaluation of the Felahy Attorneys’ negligence. The failure to fix the admissions problem and alleged “conflicted” representation allegedly caused Plaintiff to suffer the exact same damages,i.e., having to pay $700,000 to settle the Castillo Action and $294,897 in fees and costs paid by Plaintiff to the Felahy Attorneys to defend the Castillo Action. (UF 34) Il. ARGUMENT A. THE SUMMARY JUDGMENT STANDARD Summary judgment, which is directed to the issues framed by the pleadings,is properly granted when the moving defendant establishes that there are no triable issues of any material fact. (Code of Civil Procedure §437c(c); Reliance National Indemnity Co. v. General Star Indemnity Co. (1999) 72 Cal.A pp.4th 1063, 1073.) In moving for summary judgment, "[a] defendant. . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action." (Code of Civil Procedure §437c¢ (p)(2).) B. Plaintiff's Claim for L egal Malpractice Has No Merit and Should Be Dismissed. The elements of Plaintiff's first cause of action for legal malpractice are: (1) the duty of a professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise; (2) breach of that duty; (3) proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence. (Budd v. Nixen (1971) 6 Cal.3d 195, 200.) 7 DEFENDANTS ALLEN B. FELAHY, OSCAR RAMIREZ AND FELAHY LAW GROUP, APC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, ETC. © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O 1. Plaintiff C annot Establish C ausation,i.e., That “But For” The Felahy Attorneys’ Alleged Negligence, It Would Have Obtained a M ore Favorable Result. The Felahy Attorneys are entitled to summary judgment with respect to the essential element of causation. Where there is no triable issue of material fact as to the element of causation, the trial court may properly grant summary judgment. (Kurinji v. Hanna and Morton (1997) 55 Cal.A pp.4th 853, 864.) In legal malpractice claims, the absence of causation may be decided on summary judgment. (Namikasv. Miller (2014) 225 Cal.App.4th 1574, 1583.) To recover on its claim for legal malpractice, Plaintiff must establish a causal connection between the purported wrongful conduct and the damages claimed. “In fact, to prove actionable damages, the former client must establish that “but for” his attorney's negligence, a more favorable result would have been obtained. (Campbell v. Magana (1960) 184 Cal.App.2d 751, 754; see also Loube v. Loube (1998) 64 Cal.A pp.4th 421.) This standard requires a “trial-within-a-trial” of the underlying case, in which the malpractice jury must decide what a reasonable jury or court would have done if the underlying matter had been tried instead of settled. (M attco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.A pp.4th 820, 834.) This method is the most effective safeguard yet devised against speculative and conjectural claims.... [tis a standard of proof designed to limit damages to those actually caused by a professional's malfeasance. (J alali v. Root (2003) 109 Cal.A pp.4th 1768, 1773-1774.) California courts have repeatedly emphasized the importance of establishing a clear connection between the defendant's alleged negligence and the plaintiff's claimed damages. In fact, the Supreme Court of California in visiting the “causation” issue confirmed that whether a legal malpractice claim is premised on litigation or transactional malpractice, a plaintiff “must show that ‘but for’ the alleged malpractice,itis more likely than not that the plaintiff would have obtained a more favorable result”. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1244.) In doing so, the Court commented as follows: 8 DEFENDANTS ALLEN B. FELAHY, OSCAR RAMIREZ AND FELAHY LAW GROUP, APC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, ETC. © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O ‘Clients predictably attempt to shift some part of the loss . . Before the loss can be shifted, however, the client has an initial hurdle to clear. It must be shown thatthe loss suffered was in fact caused by the alleged attorney malpractice. |tis far too easy to make the legal advisora scapegoat . . unless the courts pay close attention to the cause in fact element, and deny recovery where the unfavorable outcome was likely to occuranyway, theclient already knew the problems with the deal, or where the client's ownmisconduct or misjudgment caused the problems.It is the failure of the client to establish the causal link that explains decisions where the loss is termed remote or speculative.” (Citation Omitted). (Emphasis Added). (Id. at1241.) Other court decisions have reached similar results. InJalali v. Root (2003) 109 Cal.App.4th 1768, the Court of Appeal reversed a jury verdict in favor of the plaintiff who had sued her attorney for erroneous legal advice relating to the taxability of proceeds from a settlement. The Court of Appeal held that the plaintiff had failed to prove that the defendant attorney caused her any damage as a result of the arguably negligent tax advice, for she failed to establish that “but for” the defendant's negligence she could have done better, i.e. would have recovered more in settlement or trial if she had known of the negligent advice and declined to proceed with the settlement. (/d. at 1777-1778.) InBarnard v. Langer (2003) 109 Cal.A pp.4th 1453, the Court of Appeal affirmed a non-suit in favor of the attorney defendants, because plaintiff had not established that “but for” the attorney defendants’ negligence, the inverse condemnation action in which they represented plaintiff would have had a better outcome, either through a higher settlement orattrial. The court reiterated: “Itis not enough for Barnard to simply claim, as he did at the trial of this malpractice claim, that it was possible to obtain a better settlement or a better result at trial. The mere probability that a certain event would have happened will not furnish the foundation for malpractice damages.” (/d. at 1461.) In Marshak v. Ballesteros (1999) 72 Cal.A pp.4th 1514, the court granted summary judgment in favor of attorney defendants on a claim by their former client that they advised him to settle his divorce action for less than it was worth. (/d. at 1516.) The Marshak Court went on, however, to recognize that even evidence that a case was worth more than it settled for is not enough. tis not enough because there is still the failure to 9 DEFENDANTS ALLEN B. FELAHY, OSCAR RAMIREZ AND FELAHY LAW GROUP, APC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, ETC. © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O establish that the underlying defendant would have paid anything other than what was agreed to, or that there would have been a judgment entered for more than the settlement. (Id. at 1519.) The court stated: Even if he were able to prove this, however, he would not prevail. For he must also prove that his ex-wife would have settled for less than she did, or tharthat1w reputed.nLhasnolevenmatedbowft would establish one or the other of these results with the certainty required to permit an award of damages. (Marshak, 72 Cal.App.4th at 1519 (emphasis added).) Pursuant to this well-established legal authority, alleging wrongful conduct alone is not enough to support an allegation of legal malpractice. Rather, Plaintiff must show that “but for” the Felahy Attorneys’ alleged negligence, it could have settled the case for less (i.e., amore favorable result). Plaintiff cannot meet this high burden. 2. Plaintiff's L egal Malpractice Claim Fails Because It C annot Prove That the Damages Allegedly Suffered W ere Caused by The Felahy Attorneys’ Negligence. Plaintiff's claim falls into the “settle and sue” category of lawsuits in which a disgruntled defendant client claims that it paid too much in settlement due to the negligence of the attorney. (Namikasv. Miller, supra; Barnard v. Langer, supra.) Plaintiff alleges that it was forced to settle the Castillo Action for $700,000 because of the Felahy Attorneys’ alleged negligence. There is no evidence that the Felahy Attorneys’ failure to fix the admissions problem caused Plaintiff to have to pay more in settlement of the Castillo Action. There is no evidence that the Castillo Plaintiffs ever demanded anything less than $700,000 before or after the admissions were deemed admitted. (Ex. N, Jackson Depo., p. 251:5-14; Andrade Decl., 117.) Presumably if the admissions had an impact on the settlement, the Castillo Plaintiff's settlement demand after the admissions would have increased rather than decreased. In fact, Plaintiff's settlement demands went from $2.8 million before the admissions to the ultimate settlement of $700,000. (UF 6, 28, 31) 10 DEFENDANTS ALLEN B. FELAHY, OSCAR RAMIREZ AND FELAHY LAW GROUP, APC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, ETC. © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O In addition, the settlement was not unreasonable under the facts of the Castillo Action. Jackson and Frost admitted to both A ndrade and Felahy that Plaintiff had failed to pay prevailing wages and that estimated best-case scenario was damages in the range of $400,000 to $500,000. A settlement of $700,000 is not significantly more than J ackson’s evaluation of liability plus settlement of the attorneys’ fees that would have been awarded based on Plaintiff's failure to pay prevailing wages. Moreover, there is no evidence that J ackson would have wanted to try the Castillo Action. To the contrary, Jackson desperately wanted to settle the case. Jackson testified: “| had a desire to settle the case from day one.” (Ex. N, Jackson Depo., p. 169:24.) There were several attempts by Plaintiff to settle the Castillo A ction during the litigation. Jackson testified that in December 2012 he wanted to settle the case to avoid legal fees. (Ex. N, Jackson Depo., p. 97:21-25.) Jackson testified that in M ay of 2013 he wanted to settle the case to avoid legal fees. (Ex. N, Jackson Depo., p. 136:9-17.) Immediately after Felahy became counsel to Plaintiff, CCP 998 Offers were served in an attempt to settle the Castillo Action. (Ex. F.) There were many other reasons why Plaintiff wanted to settle the Castillo A ction, rather than take it to trial. Plaintiff had limited money since it stopped doing business in May 2013. (Ex. N, Jackson Depo., p. 184: 15-18) M ore importantly, Plaintiff was under investigation by the DA for failing to pay prevailing wages. (Ex. C.) Although Jackson incredibly testified that the DA's investigation was of no concern to him, Jackson admitted that the DA “took all the payroll information. Top to bottom.” (Ex. N, Jackson Depo., p.43:20-21.) The payroll information seized by the DA was problematic because that information was needed to defend against claims that proper payroll records were not maintained by Plaintiff as required by the Labor Code. (Seee.g., Ex. A, Castillo Complaint, p. 12:25-27, 13:17-18) In addition, Plaintiff seeks, as damages, most of the fees paid to the Felahy Attorneys in connection with the Castillo A ction. Plaintiff may not recover as tort 11 DEFENDANTS ALLEN B. FELAHY, OSCAR RAMIREZ AND FELAHY LAW GROUP, APC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, ETC. © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O damages legal fees paid to the negligent attorney. (Orrick Herrington & Sutcliffe LLP v. Sup.Ct. (Malcolm), 107 Cal.A pp.4th 1052.) Therefore, Plaintiff's legal malpractice claim fails as a matter of law. C. Plaintiff Cannot Prevail on its Breach of Fiduciary Duty C ause of Action. 1. Plaintiff's Breach of Fiduciary Duty Cause of Action isAn Impermissible Duplication ofits L egal Malpractice C ause of Action. A breach of fiduciary duty is a tort claim entirely distinct from a malpractice claim based on professional negligence. (Barbara A. v. John G. (1983) 145 Cal.App.3d 369, 382- 383.) Beyond mere allegations of professional negligence, a cause of action for breach of fiduciary duty requires some further violation of the obligation of trust, confidence, and/or loyalty to the client. (2 Mallen & Smith, Legal Malpractice (2017) § 15.3, pp. 660-661 [“[Fliduciary breach allegations that constitute negligence, which do not implicate a duty of confidentiality or loyalty, and are merely duplicative of a negligence cause of action, do not support a cause of action for fiduciary breach”].) W hen the basis for a claim of breach of fiduciary duty arises from the same facts and seeks the same relief as the attorney negligence claim for malpractice, the claim for breach of fiduciary duty is duplicative and should be dismissed. (Broadway Victoria, LLC v. Norminton, Wiita & Fuster (2017)10 Cal.App.5th 1185, 1194,review filed (May 31, 2017).) Jackson testified that the Felahy Attorneys never stole money from him, never divulged any confidences and was never disloyal. (Ex. N, Jackson Depo., p. 209:11-19.) Jackson testified that Plaintiff's only complaints against the Felahy Attorneys was that they failed to timely respond to the request for admissions and were incorrect in their advice on the statute of limitations for a claim of malpractice against the Andrade Attorneys. (Ex. N, Jackson Depo., p. 209:20-25.) These are the exact same alleged acts of negligence that Plaintiff contends supportsits legal malpractice claim. They do not support a breach of fiduciary duty claim. 12 DEFENDANTS ALLEN B. FELAHY, OSCAR RAMIREZ AND FELAHY LAW GROUP, APC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, ETC. © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O 2. Thereis No Evidence of any Breach of Fiduciary Duty. The scope of an attorney's fiduciary duty may be determined as a matter of law based on the Rules of Professional Conduct which, together with statutes and general principles relating to other fiduciary relationships, all help define the duty component of the fiduciary duty which an attorney owes to his [or her] client. (Mirabito v. Liccardo (1992) 4 Cal.App.4th 41, 45; David Welch Co. v. Erskine & Tulley (1988) 203 Cal.A pp.3d 884, 890.) Plaintiff contends in its discovery responses that the Felahy Attorneys breached their fiduciary duty when it failed to inform Plaintiff that they, along with the Andrade Attorneys, were responsible in part for the admissions and failed to get a conflict waiver. Plaintiff claims that the Felahy Attorneysfailure to makethis disclosure and get a conflict waiver was motivated by its financial self-interest in earning attorneys’ fees to defend the Castillo Action. There is no evidence that the Felahy Attorneys harbored an intent to take advantage of Plaintiff by billing it for fees that they knew were not justified. The claim is entirely speculative. The court rejected a similar argument in Broadway Victoria, LLC v. Norminton, Wiita & Fuster, supra at 1196-97. Attorneys have a fiduciary obligation to disclose material facts to their clients, which includes disclosure of acts of malpractice. (Beal Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 514.) However, there is no rule of professional conduct or ethical obligation by attorneys to discuss with their clients the various types of recovery a client may obtain in a potential malpractice action against him or her. (Expansion Pointe Properties Ltd. P'ship v. Procopio, Cory, Hargreaves & Savitch, LLP (2007) 152 Cal.App.4th 42, 55.) The ethical obligation is a duty to report when the attorney has made a mistake, so that the client may choose not to proceed with the services of that attorney. There is no legal or ethical requirement that informed written consent to continuing representation or a conflict waiver be obtained at the time of this disclosure. (California Rules of Professional Conduct, Rule 3-310.) 13 DEFENDANTS ALLEN B. FELAHY, OSCAR RAMIREZ AND FELAHY LAW GROUP, APC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, ETC. © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O Plaintiff's attempt to conjure up a “conflict” theory based on pure speculation to support its breach of fiduciary duty claim falls flat. Here, the Felahy Attorneys complied with their ethical obligations. Felahy advised Jackson that he was unable to prevent the admissions from being deemed admitted right after the M ay 16, 2013 hearing and that it impaired Plaintiff's ability to defend the case somewhat. (Ex. K, Felahy Depo., p. 108:22- 15, 109:1-15.) Felahy explained to Jackson that the court had not made any finding on what was owed, just that some amount was owed, something that J ackson had already conceded. (Ex. K, Felahy Depo., p. 09:6-13.) Jackson admitted that he knew by at least August 2013 that the Felahy Attorneys had failed to undo the admissions, yet he wanted to have Felahy continue to represent him in the Castillo Action. (Ex. N, Jackson Depo., p. 244:13-25, 245:1-18, 249:3-9.) The Felahy Attorneys’ representation of Plaintiff in the Castillo Action ended on July 3, 2014. (Ex. N, Jackson Depo., p. 199:2-4.) In August 2014, before the Felahy Attorneys accepted representation of Plaintiff in a legal malpractice case against the Andrade Attorneys, Felahy advised Plaintiff in writing of a potential conflict and advised the A ndrade Attorneys to seek the advice of independent counsel to decide whether a conflict waiver should be signed. (Ex. H, Ex. N, Jackson Depo., p. 201:7-15, 23-25, 202:1-2; 244:13-15, 245:1-18; Ex. Q, p. 5:14-15.) Jackson insisted that Felahy provide him with a referral to the independent counsel. (Ex. N, Jackson Depo., p. 224:13-24.) Felahy provided Plaintiff with a referral to Defendant David Zeligs. (Ex. N, Jackson Depo., p. 202:3-11.) David Zeligs concluded that Felahy was in part at fault for failing to respond to the request for admissions. As a result, Plaintiff hired its current counsel to pursue the legal malpractice claims against the A ndrade Attorneys and the Felahy Attorneys. Because the Felahy Attorneys fully complied with their duties to timely disclose that they were not able to undo the admissions during the pendency of the Castillo A ction and then disclosed in writing their potential conflict in pursuing a legal malpractice claim against the Andrade firm, there is no evidence of a breach of fiduciary duty here. 14 DEFENDANTS ALLEN B. FELAHY, OSCAR RAMIREZ AND FELAHY LAW GROUP, APC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, ETC. © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O 3. Plaintiffs Have No Damages Based on Any Purported Breach of Fiduciary Duty. Even if there is a finding that the Felahy Attorneys breached their fiduciary duty to disclose a potential conflict during the Castillo Action, Plaintiff suffered no damages as a result thereof. Plaintiff seeks the exact same damages for its purported cause of action for breach of fiduciary duty as those sought based on legal malpractice. Plaintiff claims that it had to pay the $700,000 settlement because of the Felahy Attorneys’ breach of fiduciary duty. There is no evidence that the purported conflict that Plaintiff claims supports its breach of fiduciary cause of action caused Plaintiff to pay more in settlement of the case. Plaintiff paid $700,000 to settle a case for which it had liability, with or without the admissions. Because Plaintiff cannot prove damages in support of its cause of action for breach of fiduciary duty, summary judgment should be entered in favor of the Felahy Attorneys. D. Plaintiff Cannot Prevail on Its C ause of Action for Common Count. A common count is not a specific cause of action. Rather, itis a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness. When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, the common count "must stand or fall on the viability of plaintiffs’ other claims." (Berryman v. Merit Property Management, Inc. (2007) 152 Cal.App.4th 1544, 1560.) The essential elements of a common count are "'(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.’ [Citation.]" (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.) Plaintiff alleges that the Felahy Attorneys are “indebted to Plaintiff for money had and received by Defendants. . . .” based on a claim of purported excessive billing. The allegations of Plaintiff's causes of action for legal malpractice and breach of fiduciary duty are incorporated into its “common count” cause of action. Based on the foregoing undisputed evidence, Plaintiff's claims for legal malpractice and breach of fiduciary fail as 15 DEFENDANTS ALLEN B. FELAHY, OSCAR RAMIREZ AND FELAHY LAW GROUP, APC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, ETC. © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O a matter of law because there is no evidence that the Felahy Attorneys’ conduct caused any damage to Plaintiff. Because thereis no basis for Plaintiff's claim for return of fees based on legal malpractice or breach of fiduciary duty, Plaintiff's cause of action for common count should fail as well. Furthermore, J ackson testified that Plaintiff paid the Felahy Attorneys’ bills and only objected once to payment of a bill. (See Ex. N, Jackson Depo., p. 123:21-25, 124:1-3, 19-25, 125:1-18.) That objection was resolved. (/d.) In fact, Jackson renegotiated the fees charged by the Felahy Attorneys in November 2013 and in January 2014 and specifically agreed to the new arrangements. (See Ex. N, Jackson Depo., p. 169:1-20; Ex. O, January 15, 2014 email and p. 2, November 5, 2013 email.) Accordingly, Plaintiff has no legal or factual basis to support its claim for common count and it should be dismissed. E. Plaintiff Has No E vidence to Prove T hat Oscar Ramirez Is | ndividually Liable for L egal Malpractice or Breach of Fiduciary Duty. Plaintiff's main claim against the Felahy Attorneys is that they failed to timely respond to the request for admissions prior to the M ay 16, 2013 hearing on the Motion to Deem the Request for Admissions Admitted. The Felahy Attorneys’ billing records demonstrate that Ramirez had nothing to do with this issue. (Ex. L.) In fact, Jackson testified that Oscar Ramirez took many depositions in the Castillo Action and that he had no criticism of that work. (Ex. N, Jackson Depo., p. 242:8-16.) Jackson could not remember anything that Ramirez did wrong in the representation of Plaintiff in the Castillo Action. (Ex. N, Jackson Depo., p. 242:3-5.) As for Plaintiff's breach of fiduciary duty claim, Jackson testified that Ramirez was not disloyal to Plaintiff, did not breach any confidences and did not steal any money from Plaintiff. (Ex. N, Jackson Depo., p. 243:1-7.) Jackson testified that he was not aware of any harm caused by Ramirez's conduct. (Ex. N, Jackson Depo., p. 243:8-10.) Furthermore, Plaintiff's written discovery responses fail to mention Ramirez or describe anything that he did wrong. (Ex. P, p. 2-3, Interrogatory Nos. 3 and 6; Ex. Q, pp. 16 DEFENDANTS ALLEN B. FELAHY, OSCAR RAMIREZ AND FELAHY LAW GROUP, APC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, ETC. O o 0 3 9 O O u n B A W o N 10 11 12 13 14 15 16 17 18 19 20 31 22 23 24 25 26 27 28 1-9 and Plaintiff’s Responses to Interrogatory Nos. 3 and 6.) Therefore, Ramirez should be dismissed from this action. IV. CONCLUSION As a matter of law, Plaintiffs cannot prove that any of the negligent conduct of the Felahy Attorneysor alleged breach of fiduciary duty caused any of the damagesthat they seek. Therefore, summary judgment should be entered in favor of the Felahy Attorneys on Plaintiff’s entire complaint. Respectfully submitted, Dated: July 12,2017 FREEMAN MATHIS & GARY, LLP [CHEN $,CARNER Attorneys for Defendants ALLEN B. FELAHY,an individual; OSCAR RAMIREZ, an individual; and FELAHY LAW GROUP, APC, a Professional Law Corporation 17 DEFENDANTS ALLEN B. FELAHY, OSCAR RAMIREZ AND FELAHY LAW GROUP, APC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, ETC. © 0 N N O A D n B A W N N O N N N N N N N N = e m = e m e e e e e e e e e e 0 0 N N O N L n B R A W N O V N N O Y R W N D — O o PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles. I declare that I am over the age of eighteen (18) and not a partyto this action. My business address is 2615 Pacific Coast Highway, Suite 300, Hermosa Beach, California 90254. On July 13, 2017, I served the following document described as: DEFENDANTS ALLEN B. FELAHY, OSCAR RAMIREZ AND FELAHY LAW GROUP, APC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION OF ISSUES; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT on the interested parties in this action by placing the true copies thereof enclosed in sealed envelopes as follows: PLEASE SEE ATTACHED SERVICE LIST () By U.S. Mail: I deposited such envelopes in the mail at Hermosa Beach, California. The envelopes were mailed with postage thereon fully prepaid. () By Personal Service: I caused such envelope to be delivered by hand to the individuals at the addresses listed. (X) By Overnight Courier: I caused the above-referenced document(s) to be delivered to an overnight courier service (FedEx), for delivery to the addressee(s) listed. () By Facsimile Machine: I caused the above-referenced document(s) to be transmitted to the above-named person at the following telephone number above. (X) By Electronic Mail: VIA ONE LEGAL FILE & SERVE: I caused to be served, a true and correct copy of the above-entitled document(s) to the e-mail address of the addressee(s) so indicated. (X) (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. EXECUTED on July 13, 2017, at Hermosa Bgach Maritza Arlzaga 18 DEFENDANTS ALLEN B. FELAHY, OSCAR RAMIREZ AND FELAHY LAW GROUP, APC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, ETC. © 0 0 d N o o u t B A Ww W N O B N N N N N N N D N N N N N F P B B B B 2 B B B B F B B B 0 ~ N o O U l B A W N F P O O V W o O N N o O U R E W N P O o SERVICE LIST Garcia Juarez Construction, Inc. v. Allen B. Felahy, et al. Orange County Superior Court Case No. 30-2015-00775077-CU-NP-CJC ATTORNEY FOR PLAINTIFF GARCIA DEFENDANT PRO PER JUAREZ CONSTRUCTION INC. David M. Zeligs, Esa. Fred). Knez, Esq. Law Offices of David M. Zeligs Andrew J. Knez, Esq. 404 East First Street, Suite 245 KNEZ LAW GROUP, LLP Long Beach, CA 90802 6780 Indiana Ave., Ste. 150 E-mail: d.zeligs@ zeligslaw.com Riverside, CA 92506 E-mail: fredknez@ knezlaw.com E-mail: info@ knezlaw.com 19 DEFENDANTS ALLEN B. FELAHY, OSCAR RAMIREZ AND FELAHY LAW GROUP, APC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, ETC. From: donotreply@occourts.org [mailto:donotreply@occourts.org] Sent: Thursday, May 11, 2017 11:04 AM To: Celia Flippin Subject: Superior Court of Orange County - Motion Reservation Request - CONFIRMATION Superior Court of California, County of Orange RESERVE A MOTION DATE Your reservation request has been CONFIRMED by the Superior Court. The hearing date and time below has been reserved. You will be asked to provide your reservation number to the court at a later date. MOVING PAPERS MUST BE E-FILED WITHIN 24 HOURS AFTER COMPLETING THE ON-LINE RESERVATION. Failure to submit your moving papers within 24 hours will result in the automatic CANCELLATION of the reservation. NOTE: To EXPEDITE your MOTION filing place the appropriate Court Reservation number (e.g. 7XXXXXXX) on each Motion being submitted. Please do not reply to this email. Reservation Number: 72587603 Hearing Date: September 28, 2017 Hearing Time: 1:30 PM Department: C18 Motion Type: Motion for Summary Judgment and/or Adjudication Case Number: 30-2015-00775077-CU-NP-CIC Case Title: Garcia Juarez Construction, Inc. vs. Felahy Judicial Officer: Hon. Theodore Howard Email: cflippin@kdvlaw.com Date of Request: May 11, 2017 Time of Request: 11:02 AM Transaction Number: 622661172 Superior Court of California County of Orange