Keshen vs Buffington Law Firm

Motion for Order to Stay Proceedings

Cal. Super. - 4th Dist.October 30, 2017

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mary Anne Keshen PO BOX 31789 Santa Fe, NM, 875494 (310) 859-4633 Mary Anne Keshen, In Pro Per SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE MARY ANNE KESHEN, Plaintiff, Case No.: 30-2017-00952663 NOTICE OF PLAINTIFF'S MOTION TO STAY ACTION PENDING ARBITRATION; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF MARY ANNE KESHEN; EXHIBITS VS. ROGER J. BUFFINGTON and BUFFINGTON LAW FIRM, Defendant [Proposed] Order Filed Concurrently Herewith] Date: March 14, 2018 Dept. C25 ) ) ) ) ) ) ) ) ) ) ) Time: 10:00 AM ) TO DEFENDANT AND TO HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on March 14, 2018 at 10:00 AM in Department C25 of the] above-entitled court located at 700 Civic Center Drive West, Santa Ana, CA 92701 Plaintiff, MARY] ANNE KESHEN, will move this Court for an order staying this action until an arbitration is had in accordance with the June 2, 2016 Order to Arbitrate from the Los Angeles Superior Court. This motion is made pursuant to CCP section 1281.4 on the grounds that 1) the Superior Court] for the County of Los Angeles, a Court of competent jurisdiction, on June 2, 2016 ordered arbitration of the controversy thatis a critical issue in the above entitled action pending in this Court; and 2) the] PLAINTIFF'S MOTION TO STAY ACTIONS PENDING ARBITRATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 scope of damages is a critical issue in the presenttrial court action and the central, overriding issue of] the pending JAMS Arbitration (Reference No. 1200051202). Therefore, a stay ofthe court proceedings pending resolution of the JAMSarbitration is proper and necessary to avoid a multiplicity of actions, redundant and/or unnecessary discovery, and prejudice to any party. This motion is based upon this Notice, the attached Memorandum of Points and Authorities, the Declaration of Mary Anne Keshen, attached exhibits and the pleadings, records, and papers on file in this action, and any oral and documentary evidence that may be presented at the hearing of the] motion. PearyAnne Reaken DATED: February 7, 2018 MARY ANNE KESHEN, Plaintiff, In Pro Per PLAINTIFF'S MOTION TO STAY ACTIONS PENDING ARBITRATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IL. INTRODUCTION Plaintiff Mary Anne Keshen (“Ms. Keshen”) is deeply embroiled in the most bitter and contentious dispute of her life, in this court and in JAMS Arbitration. On March 31, 2013, Plaintiff commenced litigation against her former business partner, Terrance Tallen (“Tallen”) in the Los Angeles Superior Court for breaches of fiduciary duty, fraud, conversion, and an accounting related to Tallen’s alleged theft of millions of dollars of company funds and the crippling tax consequences. Plaintiff hired the defendant in this case, attorney Roger Buffington (“Buffington”) and his law firm, Buffington Law Firm (collectively “BLF”) to represent her on this matter in September 2014 in great part due to Defendant Buffington’s widely boasted training as a CPA, MBA, and Attorney. Buffington’s ultimate failure to provide competent counsel to Ms. Keshen and failure to disclose the results of a critical accounting report to Plaintiff, the court, or the mediator, which indicated that Tallen| had wrongfully taken almost $3.7 million dollars from companies owned by the various LLCs of plaintiff, resulted in a hastily prepared, fatally flawed, and poorly drafted mediated settlement agreement (“MSA”) which was entered into by the parties on January 13, 2016. The entities were not included in the MSA. Due to the hastily prepared and poorly drafted settlement agreement, the executed agreement was so vague and ambiguous that Ms. Keshen and Tallen have disputed virtually every material term and requirement. The parties proceeded to arbitration, at the LA Superior Court’s direction, under the, Hon. Judge Thrasher, under the terms of the MSA, to attempt to resolve these disputes. Due to the ambiguities, missing terms, and contradictions, the arbitration process has been fraught with complexity, uncertainly, and even confusion by the arbitrators and the arbitral organization, due to the vast number of missing and disputed MSA terms. The glaring deficiencies in the MSA are amplified by the fact that the assets at issue total tens ofmillions of dollars. Key events ofthe ensuing proceedings include Judge Thrasher withdrawing as JAMSarbitrator based upon his perceived conflicts of interest; the untimely destruction ofthe files related to the arbitration, against JAMS policy; and the appointment of a new and different arbitrator, even though the MSA Buffington drafted specified only Judge PLAINTIFF'S MOTION TO STAY ACTIONS PENDING ARBITRATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Thrasher as arbitrator. Ultimately, the issues to be determined and decided upon in the arbitration] revolve around the damages suffered by Ms. Keshen, most critically, whether a claim for almost $3.7 million in damages against Defendant Tallen has been waived and released. Asthis was the main reason Ms. Keshenfiled suit originally in the Superior Court in 2013, Buffington utterly failed in all respects. In short, this is the complete and utter mess that Plaintiff has been forced to deal with as a prelude to the adjudication ofher cause ofaction for legal malpractice against BLF. Before these claims ofprofessional malpractice can proceed to discovery and trial, the critical issue ofthe scope ofdamages needs to be sorted out in arbitration. The pending JAMS arbitration will determine the scope ofdamages in the present case, which is inextricably intertwined with Ms. Keshen’s cause ofaction for professional malpractice against Defendants. Without knowing the scope of damages, which requires JAMS resolution,the parties in this present action cannot conduct meaningful discovery towards the eventual settlement or adjudication ofthis dispute on the merits. Pursuant to CCP section 1281.4, this moving plaintiff is entitled to a stay of the present action because 1) a court has ordered arbitration; and 2) the controversy to be resolved in arbitration is an issue in the presentlitigation. This Stay is not only mandated by California Law, but is in the interest of all the parties in the presentlitigation as it will allow for targeted and intelligent discovery, prevent redundant discovery, reduce the chance of contradictory rulings being issued by the arbitrator and the court, lower litigation costs, reduce the demands for time and resources made upon this Court, and ensure that neither party is prejudiced. For the foregoing reasons, Plaintiff respectfully requests that this Court grant her Motion to Stay the Proceedings pending the outcome of the JAMS Arbitration. II. STATEMENT OF FACTS On March 31, 2013, Ms. Keshen commenced litigation against her former business partner, Terrance Tallen (“Tallen”) for breaches of fiduciary duty, fraud, conversion, and an accounting related to Tallen’s alleged theft of company funds in the Los Angeles Superior Court. (Exhibit A, Complaint, pg. 2.) Prior to this litigation, Ms. Keshen and Tallen equally co-owned seven limited liability, PLAINTIFF'S MOTION TO STAY ACTIONS PENDING ARBITRATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 companies, which owned various real estate properties located throughout the United States. (Exhibit A, Complaint, pg. 2.) Plaintiff hired defendant attorney, Roger Buffington (“Buffington”) and his law firm, Buffington Law Firm (collectively “BLF”) to represent her on this matter in September 2014. (Exhibit A, Complaint, pg. 2.) The LA County Superior Court appointed a receiver, Theodore Phelps] (“Phelps”), to manage the seven entities during the litigation. (Exhibit A, Complaint, pg. 2.) Phelps furnished what was described as a “full accounting” report (“Receiver Report”) for each of the entities which concluded that while Tallen had breached his fiduciary duties by self-dealing, unauthorized transfers, and no documentation for his transfers, it claimed he had taken little or no money from the entities. (Exhibit A, Complaint, pg. 3.) This Receiver Report was not based upon a forensic accounting] but instead used only averages. Buffington recommended to Ms. Keshen that the accounting Firm Singer Lewak LLP be engaged to perform an analysis and forensic accounting of the entities involved in the litigation at the considerable cost of more than $120,000. (Exhibit A, Complaint, pg. 3-4.) At Buffington’s insistence, Plaintiffhad very limited and no direct contact with the accountants preparing the resulting report (“SL Report”) and all communications concerning the report were filtered through Buffington. (Exhibit A, Complaint, pg. 3-4.) He co-signed the engagement letter with Singer Lewak LLP. The report indicated] that Tallen had wrongfully taken almost $3.7 million dollars from the companies owned by Ms. Keshen| and Tallen and was singularly the most vital and important piece of direct concrete evidence in| Plaintiff’s case. (Exhibit A, Complaint, pg. 4.) Despite the clear importance and considerable expense involved in preparing the SL Report, with an avalanche of boxes, files, and records, Buffington concealed the results and withheld the SL. Report from Ms. Keshen after the report was provided to him on January 5, 2016. (Exhibit A, Complaint, pg. 4.) Ultimately, Buffington concealed and withheld the existence and vital import of the finalized report during a sixteen-hour marathon mediation session] on January 13, 2016, which resulted in a hastily prepared and poorly drafted mediated settlement agreement (“MSA”), the terms and procurement ofwhich severely prejudiced Ms. Keshen. (Exhibit A, Complaint, pg. 6; Exhibit B, Mediated Settlement Agreement.) The mediator asked repeatedly to see the report. Buffington said he did not haveit. (Decl. of Mary Anne Keshen, q 3.) PLAINTIFF'S MOTION TO STAY ACTIONS PENDING ARBITRATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Due to the unconscionably poorly drafted settlement agreement, the executed agreement was| so vague and ambiguous that the parties disputed virtually every material term and requirement. Pursuant to the MSA,the parties commenced JAMS arbitration on January 13, 2016 to determine their respective rights and duties. (Exhibit A, Complaint, pg. 6.) Despite Ms. Keshen’s stipulation, executed on May 6, 2016, to resolve her disputes with Tallen in arbitration with Judge Thrasher, counsel for defendant Tallen filed an ex parte Motion to Compel arbitration in the LA County Superior Court. Judge White granted the order to compel arbitration on June 2, 2016. (Exhibit C, June 2, 2016 Order.) Before the Hon. Judge Thrasher withdrew as arbitrator, a hearing was held to determine the scope of arbitration. Judge Thrasher admitted eight issues for arbitration as requested by Ms. Keshen, stating that this in effect was a cancellation of the prior settlement. Subsequently, Judge Thrasher withdrew as arbitrator in the JAMS arbitration based upon a perceived conflict of interest. (Decl. of] Mary Anne Keshen, 94.) Remarkably, and against JAMS official documentretention policy forpending arbitrations, the arbitration files for the JAMS arbitration were destroyed by the JAMS Orange County office after Thrasher withdrew, resulting in substantial prejudice to Ms. Keshen. (Decl. of Mary Anne Keshen, § 4.) The arbitration is now pending with a new arbitrator, the Hon. Judge Rex Heeseman,| who has yet to decide the issues that will be addressed in the arbitration, how to address the wrongful destruction of documents, and other key issues involved in the arbitration. (Decl. of Mary Anne Keshen, 9 5.) Ms. Keshen filed the present action against defendants Buffington and BLF for professional malpractice in LA County Superior Court on March 3, 2017. (Exhibit A, Complaint, Caption.) Ms. Keshenis alleging a cause of action for professional malpractice against BLF for damages she suffered as a result of Mr. Buffington’s failure to provide competent counsel as her attorney in the Keshen v. Tallen matter. (Exhibit A, Complaint, Caption, pg. 7-8) Venue was transferred to this Court on October 30, 2017. (Exhibit D, Civil Case Access, Orange County Superior Court.) Meanwhile, the pending JAMS arbitration is Case No. 1200051202. (Declaration of Mary Anne Keshen, 9 2.) Determinations to be made during the JAMS arbitration revolve around the scope of damages] suffered by Ms. Keshen and the plaintiff entities and are thus central issues to the present trial court PLAINTIFF'S MOTION TO STAY ACTIONS PENDING ARBITRATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 proceeding. Crucial liability and damage issues to be arbitrated, previously approved by JAMS arbitrator the Hon. Thrasher and presently subject to dispute, all of which directly impact plaintiffs] measure of potential damages against defendants, include but are not limited to: 1. Whether Ms. Keshen and the entities will be indemnified and repaid with interest from almost $3.7 million in net unauthorized advances from the jointly owned entities and whether the related tax returns can be brought into IRS compliance; 2. Whetherthe parties have the right to be indemnified for liabilities arising out ofthe parties’ new interest in the entities, which is a multi-million dollar issue; 3. The allocation of tax losses and receivership costs and compliance with IRS and FTB| regulations, comprising hundreds of thousands of dollars; 4. The division of millions of credit card points, accrued from more than forty different credit cards, used by defendant Tallen, paid for with the entities funds; and 5. Buffington’s alleged incompetence and lack of mental acuity; crucial issues he omitted to| address in the MSA he drafted. (Declaration of Mary Anne Keshen, 4 7.) There are critical issues ofliability and damages in the JAMS Arbitration that must be resolved before the present court action can proceed to discovery and ultimately reach settlement or be adjudicated on the merits. As will be demonstrated below, the relevant law and facts are clearly in| support of Plaintiff’s motion to stay. III. TRIAL COURT PROCEEDINGS MUST BE STAYED WHEN A COURT HAS ORDERED ARBITRATION AND A CONTROVERSY IN THE ARBITRATION IS AN ISSUE INVOLVED IN THE COURT ACTION As has been outlined above, on June 2, 2016, the Superior Court for the County ofLos Angeles entered an order to compel arbitration and stay the Court proceedings in the Keshen v. Tallen matter. Arbitration on this matter is currently pending under Judge Heeseman, the second arbitrator to hear the dispute. Controversies in the arbitration, namely a determination of the scope of damages, are critical PLAINTIFF'S MOTION TO STAY ACTIONS PENDING ARBITRATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 issues involved in the present trial court proceedings. Pursuant to California law, under these facts, a stay of the present proceedings is mandated by CCP section 1281.4 and the Court of Appeals ruling in| Heritage Provider Network. The language of CCP section 1281.4 is clear and unequivocal: “If a court of competent jurisdiction . . . [1] has ordered arbitration of [2] a controversy which is an issue involved in an action . . . pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action ..., stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate . . .” (emphasis added.) Alternatively stated, any party to a judicial proceeding is entitled to a stay of those proceedings whenever: 1) The arbitration of a controversy has been ordered; and 2) That controversy is also an issue involved in the pending judicial action. (Marcus v. Superior Court (1977) 75 Cal.App.3d 204, 209.) “The purpose of the statutory stay is to protect the jurisdiction of the arbitrator by preserving the status quo until arbitration is resolved.” (Federal Ins. Co. v. Superior Court (1998) 60 Cal.App.4" 1370, 1374.) In the absence ofa stay, the continuation of the proceedings in the trial court disrupts the arbitration proceedings and can render them ineffective.” (Id. at 1375.) One of the purposes of CCP] section 1281.4 is to promote the expeditious and efficient settlement of disputes and eliminate multiplicity of actions. (Marcus v. Superior Court 75 (1977) Cal.App.3d 204, 211-212.) In Heritage Provider Network Inc. v. Superior Court, the Court of Appeals held that where] overlapping issues existed in a controversy between an independent practice association (IPA) and its physicians that was ordered to arbitration, as well as claims between the IPA and a provider network, the trial court erred in denying the provider network’s motion for a stay of the litigation pursuant to CCP section 1281.4. 158 Cal.App.4™ 1146, 1154; see Franco v. Arakelian Enterprises, Inc. (2015) 234 Cal.App.4™ 947, 966 (in a wage and hour case, the possibility that the issues subjectto litigation] might overlap those subject to arbitration, caused reviewing court to direct trial court to order stay of trial court proceedings); see also Cuevas v. Truline Corp. (2004) 118 Cal.App.4™ 56, 61 (CCP Section PLAINTIFF'S MOTION TO STAY ACTIONS PENDING ARBITRATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1281.4 “contemplates that an arbitration may proceed against some parties and non-arbitration court proceedings shall be deferred against the remaining parties.”) The provisions of CCP section 1281.4 are applicable on the existence of any controversy that would be an issue in the subsequent judicial proceeding, whether or not a determination of such issue, on arbitration, would subsequently operate as a collateral estoppel. (Marcus v. Superior Court (1977) 75 Cal.App.3d 204, 212.) CCP Section 1280(c) defines ‘controversy’ as ‘any question arising between 299parties to an agreement whether such question is one of law or of fact or both.” (Heritage Providen Network at 1152.) Thus, a single overlapping issue is sufficient to require imposition of a stay. (/d. af] 1152-1153). The Los Angeles Superior Court ordered arbitration of the disputes between Mrs. Keshen and] Tallen on June 2, 2016. The controversies at issue in the arbitration, the scope of damages, is an issue inextricably involved in the pending judicial action, which will determine whether and to what extent Buffington and BLF are liable to Ms. Keshen for professional malpractice in representing her on this matter. Therefore, moving plaintiff respectfully requests that this Court grant her motion to stay the present action pending arbitration as is required under CCP section 1281.4. IV.THIS ACTION, INCLUDING THE DISCOVERY PROCESS, SHOULD BE STAYED PENDING COMPLETION OF THE ARBITRATION A stay ofthe present court action pending resolution ofthe arbitrable controversies is mandated; by section 1281.4 and the Court of Appeals decision in Heritage Provider Network because: 1) a trial court has ordered arbitration; and 2) the arbitration will decide controversies over the scope ofdamages, which is a critical issue in the present judicial action and an essential element for a cause of action for professional malpractice. As has been demonstrated above, the Los Angeles Superior Court entered an order on June 2, 2016 to compel arbitration. (Exhibit C, Order to Compel Arbitration.) The issues inl controversy in the ongoing JAMS Arbitration (Reference No. 1200051202) involve a determination of the damages suffered (or not suffered) by Ms. Keshen due to the conduct of Tallen under the terms of PLAINTIFF'S MOTION TO STAY ACTIONS PENDING ARBITRATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the defective MSA that was prepared by defendants in this case, BLF. The terms of CCP 1281.4 are mandatory. The statute requires that where the court has ordered arbitration of a controversy, the court shall, upon the request of a party, stay the court action. These issues are inextricably entwined in the presentlitigation. The damages Ms. Keshen and the plaintiff entities have suffered could well exceed 7 million dollars due to the vague, incomplete, and missing material terms in the MSA and Buffington’s undisclosed agreement with Tallen’s counsel solely to do an asset partitioning. These include crippling tax liabilities not addressed in the Buffington MSA, the failure to address mortgage loan guarantees totaling over 7.5 million dollars, the failure to allocate Receiver expenses in the hundreds of thousands of dollars, and the back-breaking costs ofthe] continued arbitration and litigation. By now it should be obvious, the arbitration will determine crucial issues of liability and damages that bear a direct and disproportionate impact on events in this present case. The issues in| each proceeding are so intertwined, that to separate or sever them would an exercise in futility and a waste of this Court’s time and resources. As this Court is aware, a basic cause of action for professional negligence has “damages” as one ofits essential elements. Without knowing the scope of damages, which requires JAMS resolution in this instance, the parties cannot conduct proper and targeted discovery. The parties will be forced to conduct redundant, duplicative, and potentially futile discovery and attendant law and motions practice to determine facts that can only be determined in arbitration, as was agreed to by the parties in the MSA. Ms. Keshen addressed this with counselfor Buffington, however, this only served to escalate their discovery efforts, presumably in an attempt to unreasonably burden and distract Ms. Keshen. For the abovementioned reasons, this Court should respectfully grant Plaintiff’s Motion to Stay the Action Pending Arbitration. PLAINTIFF'S MOTION TO STAY ACTIONS PENDING ARBITRATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. MOVING PARTY HAS COMPLIED WITH CALIFORNIA RULES OF COURT, RULE 3.1330 A petition to compel arbitration or to stay proceedings pursuant to CCP section 1281.4 must state the provisions ofthe written agreement and the paragraph that provides for arbitration. (Cal. Rules] of Court, Rule 3.1330). Attached as Exhibit B to the Declaration of Mary Anne Keshen, and incorporated herein, is a true and correct copy of the written Agreementat issue, the MSA, containing at page 4, paragraph 12, the relevant provision for arbitration of this dispute which states that, “Any dispute over a material term of this Agreement or the subsequent more complete agreement shall be] decided by Judge Thrashersitting as Arbitrator.” (Exhibit B, MSA, page 4, para. 9.) VI. CONCLUSION Wherefore, Plaintiff, MARY ANNE KESHEN respectfully requests this Court grant her motion to stay the action pending the outcome of the JAMS Arbitration. The issues to be resolved at this arbitration include crucial determinations of liability and the amount and scope of damages at stake in| the present litigation and therefore justify a stay of the pending trial court proceedings to avoid a multiplicity of actions, potentially contradictory rulings, duplicative and unnecessary discovery efforts, and wasting ofthe parties’ and the Court’s time. PLAINTIFF'S MOTION TO STAY ACTIONS PENDING ARBITRATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF MARY ANNE KESHEN IN SUPPORT OF MOTION TO STAY I, Mary Anne Keshen, declare: I. I am a pro perlitigant and plaintiff in this pending action. I am licensed to practice law in the states of Texas and Florida, I am not licensed in the state of California and I do not practice law. I am a full-time investor and also sit on corporate and not-for profit Boards of Directors. I have personal knowledge ofthe following and if called as a witness, I could and would competently testify thereto. 2. I am currently extensively involved in JAMS Arbitration (Reference No. 1200051202) which is involved in determining the extent of damages owed to me by my former business partner, Terrance Tallen. Mr. Buffington facesliability in this court action based upon his alleged failure to competently represent me in this dispute with Mr. Tallen for, among other misconduct, failing to keep me informed ofcrucial case matters, failing to utilize, in court, with opposing counsel, or at mediation, a $127,000 forensic accounting report he insisted I needed that showed Mr. Tallen owed more than 3.7 million dollars, including a long list of badges of fraud. Therefore, a determination of the extent of damages owed to me by Mr. Tallen has a direct and substantial impact to the issues of liability and especially damages in this present case. 3. During the January 13, 2016 mediation, the mediator asked repeatedly to see the Singer and Lewak report, which was prepared upon advice by Buffington. Buffington said he did not have it. 4. The Mediated Settlement Agreement (“MSA”) provided that disputes would be handled in arbitration before the Hon. Judge Thrasher. Before Judge Thrasher withdrew as arbitrator, a hearing was held to determine the scope of arbitration. Judge Thrasher admitted eight issues for arbitration, as I requested, stating that this in effect was a cancellation of the prior settlement. Subsequently, Judge Thrasher withdrew as arbitrator in the JAMS arbitration based upon a perceived conflict of interest. Remarkably, and against JAMS official document retention policy for pending PLAINTIFF'S MOTION TO STAY ACTIONS PENDING ARBITRATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 arbitrations, the arbitration files for the JAMS arbitration were destroyed by the JAMS Orange County office after Thrasher withdrew, which caused and is causing me substantial prejudice. 5. The arbitration is now pending with a new arbitrator, the Hon. Judge Rex Heeseman, who has yet to decide the issues that will be addressed in the arbitration, how to address the wrongful destruction of documents, and other key issues involved in the arbitration. 6. The destruction of the JAMS documents precipitated a hearing with JAMS on the morning of January 29, 2018 to further discuss the issues that will be arbitrated at the pending JAMS Arbitration. As ofthis date, the parties are in the process of gathering evidence pending a Rule 16 hearing. 7. Crucial liability and damage issues to be arbitrated, previously approved by JAMS arbitrator the Hon. Thrasher and presently subject to dispute, all of which directly impact my measure, of potential damages against defendants, include but are not limited to: a. Whether myself and my entities will be indemnified and repaid with interest from almost] $3.7 million in net unauthorized advances from the jointly owned entities and whether the related tax returns can be brought into IRS compliance; b. Whetherthe parties have the right to be indemnified for liabilities arising out ofthe parties’ new interest in the entities, which is a multi-million dollar issue; c. The allocation of tax losses and receivership costs and compliance with IRS and FTB| regulations, comprising hundreds of thousands of dollars; d. The division of millions ofcredit card points, accrued from more than forty different credit cards, used by defendant Tallen, paid for with the entities funds; and e. Buffington’s alleged incompetence and lack of mental acuity; crucial issues he omitted to address in the MSA he drafted. (Declaration of Mary Anne Keshen, 4 7.) 8. Attached hereto as Exhibit A is plaintiff’s Complaint on file with the Court on this matter. 9. Attached hereto as Exhibit B is the Mediation Settlement Agreement, with the relevant arbitration clause contained on page 4, paragraph 12. PLAINTIFF'S MOTION TO STAY ACTIONS PENDING ARBITRATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10. Attached hereto as Exhibit C is the June 2, 2016 Order to Compel Arbitration from the Los Angeles County Superior Court. 11. Attached hereto as Exhibit D is a Civil Case Access Sheet for the Orange County Superior Court obtained from the Court website on February 6, 2018, which shows that venue on this matter was transferred to Orange County Superior Court on March 3, 2017. I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 7, 2018 at Santa Fe, NM. WaryAnne Reaktor MARY ANNE KESHEN,In Pro Per PLAINTIFF'S MOTION TO STAY ACTIONS PENDING ARBITRATION EXHIBIT A MARY ANNE KESHIN CONFORMED COPY PO Box 31789 OF ORIGINAL FILED Santa Fe, NM 875494 Los Angeles Superior Court P: (310) 859-4633 MAR 03 2017 E: makeshen.ca@gmail.com Sherri R. Carter, execuuve Officer/clerkp lainti Era By Shaunya Bolden, Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES—CENTRAL DISTRICT MARY ANNE KESHEN, an individual Case No.: BC652394 [UNLIMITED CIVIL] Plaintiff, COMPLAINT FOR DAMAGES AND JURY TRIAL: Negligence (Legal Malpractice); Negligence Per Se (Legal Malpractice); Breach of Fiduciary Duty; Fraud by Intentional Misrepresentation Fraud by Negligent Misrepresentation Fraud by Concealment Breach of Contract BUFFINGTON LAW FIRM, a Professional Law Corporation; ROGER J. BUFFINGTON,Esq., an individual; AND DOES 1 THROUGH 10 T U O N O (B s ( I D ) Defendants. DEMAND FOR JURY TRIAL DATE: TIME: DEPT: JUDGE: Date Filed: March 3, 2017 COMPLAINT FOR DAMAGES (O TE E S E E ~ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PlaintiffMARY ANNE KESHEN,an individual (“Plaintiff” or “Client”), brings this action against Defendants BUFFINGTON LAW FIRM,a Professional Law Corporation (“The Firm”); and ROGER J. BUFFINGTON,Esq. (“Attorney” or “Buffington”); AND DOES 1 THROUGH 10 (collectively herein “Defendants™). JURISDICTION AND VENUE 1. This Court has jurisdiction under California Code of Civil Procedure § 395. Plaintiff's damages exceed the jurisdictional minimum ofthis Court. 2. Venue is proper in the County of Los Angeles because Plaintiff’s claims arise out of transactions, occurrences, and omissions that occurred in the County of Los Angeles. THE PARTIES Plaintiff 3. MARY ANNE KESHEN (“Plaintiff” or “Client”). is an individual residing at 6219 Ramirez Mesa Drive Malibu, California, 90265 and at P.O. Box 31789, Santa Fe, New Mexico 875494. Defendants 4. THE BUFFINGTON LAW FIRM,at all times relevant, is a Professional Law Corporation with its principal place of business located at 8840 Warner Ave, Suite 300, Fountain Valley, California 92708 (“The Firm”). 5. ROGER J. BUFFINGTON is an individual, and at all times relevant herein, was licensed to practice law in the State of California, and at all relevant times, was an active member of the State Bar for the State of California (“Attorney” or “Buffington™). On information and belief, Attorney is the founding member and sole partner of The Firm. 6. The namesofother defendants and/or their involvement in this dispute are presently unknown to Plaintiff, who therefore sues such defendants in this action by fictitious names. Each of the defendants designated as a Doe are legally responsible in some manner for the unlawful acts described below. Plaintiff will seek leave of the Court to amend this complaint to reflect the true names and capacities of the defendants designated as DOES 1-10 when their identities become known. 1 COMPLAINT FOR DAMAGES Fg Each Defendant was acting within the course and scope of said agency, employment, unity of interest and/or joint venture and with the permission, knowledge, approval, ratification, and consent of each other, and each is responsible and liable in some manner for the damages or injuries sustained or threatened to be sustained by Plaintiff. 8. Whenever this complaint references acts of any defendant or one ofits un-named agents or co-conspirators, such allegation shall be deemed to mean the act of those defendants named in the particular cause of action and each of themacting, individually, jointly, and severally. Defendants aided and abetted each other in accomplishing the wrongful acts. In doing so, Defendants acted with an awareness of their wrongdoing and realized that their conduct would substantially assist the accomplishment of the wrongful conduct. ALLEGATIONS COMMON TO ALL CAUSES OF ACTION 9. On March 21, 2013, Plaintiff commenced litigation against her former business partner, Terrance Tallen (“Tallen”) for breaches offiduciary duty, fraud, conversion, and an accounting related to Tallen’s alleged theft of company funds. This action was brought in California Superior Court, Los Angeles County, case no. BC503552 (“Tallen Litigation”). Plaintiff originally retained an attorney not associated with Defendants, Randy Chang,to represent her in the action. At the time of commencing the Tallen Litigation, Plaintiff suspected significant wrongdoing but was unaware of the exact amount of funds converted by Tallen. 10. Prior to this litigation, Plaintiff and Tallen equally co-owned seven limited liability companies, which owned various residential, commercial and other properties located throughout the United States. The companies collected rents and other income, a substantial portion of which Tallen converted over the course of five plus years without Plaintiff's knowledge or consent. 11. When the action was filed in March of 2013, the court appointed a receiver, Theodore Phelps (“Phelps”), to manage the seven entities during the litigation. Specifically, Phelps was ordered/required to engage a firm to perform an accounting of the companies to, among other things, ascertain the expenditures of these entities and monies converted by Tallen. Phelps elected to hire his own company for these services. In addition, Phelps was ordered/required to prepare and furnish, or have prepared, to 2 COMPLAINT FOR DAMAGES O o 0 0 3 O O 10 11 2 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 | | I the court and all parties, monthly accounting statements for the companies showing their income and expenses, which also included Phelps’s substantial fees. 12. Plaintiff hired Attorney in September, 2014, to replace her then counsel, Mr. Chang, and represent her in the Tallen Litigation. Plaintiff and Attorney signed a retainer agreement on September 17, 2014. Plaintiff hired Attorney, in significant part, because Attorney wasalso a Certified Public Accountant and had a master’s degree in business. Plaintiff regarded these credentials as paramount because accounting related issues permeated the case, and formed the crux of Tallen’s wrongdoing. In addition, Plaintiff informed Attorney that she had no interest in settling the matter at any point and wanted the case to go to trial. Plaintiff reiterated this point constantly over the course ofthe representation. Attorney agreed to take the case to trial, and was subsequently hired. x During the course of Attorney’s representation, Phelps continued to provide monthly accounting reports. In addition, Phelps furnished his alleged “full accounting” report (“Receiver Report”) for each ofthe entities involved in the Tallen litigation. This “accounting” concluded that Tallen had taken little or no money from any ofthe entities, a point which Plaintiff vigorously disputed, and continues to dispute. 14. Attorney and Plaintiff determined that the monthly accounting reports furnished by Phelps failed to conform to industry standards. In addition, they had reason to believe that the Receiver Report's conclusion that Tallen converted no money from the companies was erroneous. Attorney had previously recommended to Plaintiff that they engage a highly qualified forensic accounting firm to perform an independent and complete forensic accounting, and provide expert witness testimony. fo On March 25, 2015, Attorney retained Jamie Holmes (“Holmes”) and Jackie Smart (“Smart”) of Singer Lewak LLP, an accounting firm, to perform an analysis and a forensic accounting ofthe entities involved in the Tallen Litigation. Holmes obtained the relevant company accounting and banking records, and commenced his forensic accounting analysis shortly thereafter. 16. At the time Holmes was hired, the court had set a trial date ofapproximately January 15, 2016 for the Tallen Litigation. 47 During the period ofAttorney’s representation, Plaintiffhad very limited and no direct contact with Holmes regarding the forensic accounting report, analysis, and preparation. All communication 3 COMPLAINT FOR DAMAGES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 concerning the work performed was filtered through Attorney because Defendants demanded that they direct and oversee the Singer Lewak work product. Accordingly, Attorney directly oversaw the scope, direction, and timing of Singer Lewak’s work, and forbade Plaintiff from communicating directly with Holmes unless Attorney was present. 18. Given the scope of the work to be performed, the short time in which it needed to be done, and the expertise needed to perform an accounting ofthe several entities, Plaintiffpaid more than $120,000 to Singer Lewak. This amount was above and beyond, and in addition to the legal fees paid to Defendants, as discussed below. 19. Based on information and belief, Holmes and Smart finished the forensic accounting report in all material respects on or about January 1, 2016. The well-documented and thorough forensic accounting report (“Singer Lewak Report” or “SL Report”) was 105 pages long including support documents, and exhibits, and concluded that Tallen had wrongfully taken $3,667,835.49 from the seven companies. This was singularly the most important piece of evidence in Plaintiff’s case. 20. Holmes is believed to have provided the SL Report, and/or a summary of its ultimate conclusions regarding Tallen’s conversion from all entities, to Defendants on or about January 5, 2016 21. Attorney concealed and withheld the SL Report from Plaintiff and never communicated the SL Report’s findings to Plaintiff. Instead, after January 5, 2016 Attorney falsely informed Plaintiff that the SL Report was unfinished, and that it would not be completed in time for trial nor within context of the ensuing settlement. Attorney also falsely represented to Judge Elizabeth White in court that the report was unfinished on February 18, 2016. 22. On or about December 29, 2015, Attorney began an aggressive campaign to convince Plaintiff to abandon her lawsuit against Tallen, and instead, settle the dispute. Despite having possession of the SL Report, Attorney advised Plaintiff that the Receiver Report waslikely to be deemed accurate, and that she should avoid trial because the court would most likely accept Phelps’ report as fact. Attorney also advised Plaintiff that she would lose at trial because a potential jury would not like her, nor believe her, and that even if Plaintiff prevailed at trial, Attorney’s fees for the trial would likely exceed the amount of any collectable judgment. 23. Plaintiff is currently unaware why Attorney desired so emphatically to avoid trial beginning 4 COMPLAINT FOR DAMAGES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5 28 on or about December 29, 2016. Plaintiff is currently unaware why Attorney chose to conceal from Plaintiff the complete findings of the SL Report and its conclusion that the Receiver Report was grossly inaccurate; that in fact, Tallen converted approximately $3.67 million from the entities. Such information would have been devastating to Tallen at trial and equally indispensable during any settlement discussions. 24. After January 5, 2016, Attorney told Plaintiff he did not have the final SL Report, nor had he shared any substantive finding with Plaintiff. Despite the foregoing, Attorney nevertheless continued to engage in an aggressive campaign to convince Plaintiff to settle because he adamantly insisted she would lose attrial because,in part, she lacked efficient evidence to prevail. 23. Based on information and belief, Plaintiffalleges that Attorney, without Plaintiff's knowledge or consent, and against her best interests, negotiated a settlement framework with Tallen’s counsel involving the partitioning ofcompany owned assets without any recognition ofthe Singer Lewak findings. This settlement framework came about because Attorney was desperate to settle the case prior to trial due to Attorney’s failure to successfully gather and assemble sufficient evidence, including basic discovery, and/or use trial time to pursue other matters. As a result, and based on Plaintiff's information and belief, Attorney began convincing Plaintiff to abandon trial in order to concealhis failure to adequately prepare for and perform attrial. 26. Alternatively, or in connection therewith, based on information and belief, Plaintiff alleges that Attorney began experiencing a rapid and substantial decline in his mental and physical health during the Fall of 2016, which would have physically and mentally prevented him from trying Plaintiff's case. Based on information and belief, Attorney began convincing Plaintiff to abandon the trial in order to concealhis decline in health. 7 fr Nonetheless, Attorney convinced Plaintiff that she would not prevail at trial, and that settlement was her only option. Specifically, Attorney suggested that the settlement involve a partition of entities and/or their assets to be split between Plaintiff and Tallen. Plaintiff initially refused to abandon trial or consider this suggestion,as this did not take into consideration the alleged fraud and monetizing claims of her case. Attorney persisted, and eventually convinced Plaintiff that she would lose at trial. During this time, Attorney was aware that Plaintiff was subject to undue influence as she was vulnerable and emotionally devastated by the recent loss of her mother,the three years of contentious litigation, and 5 COMPLAINT FOR DAMAGES the roughly $1,000,000 in fees she had spent thus far. He preyed on these extenuating circumstances. 28. Attorney aggressively persuaded Plaintiff to engage in mediation, which occurred for approximately 16 hours on January 13, 2016. The Honorable Judge Thomas Thrasher (Ret.) served as the mediator. On several occasions, Plaintiff attempted to leave the mediation, but was prevented by Attorney who stopped her by physically blocking the door. After twelve hours, Plaintiff was exhausted and requested to continue the mediation the following day. Attorney refused, stating that they had to reach a settlement that day to avoid trial, which Attorney reiterated, Plaintiff would surely lose. Convinced she had no other option, based upon Attorney’s coercion and advice, Plaintiff stayed. 29. The mediation concluded with an extremely poorly and hastily drafted settlement agreement, signed by each of the parties well after midnight. At no time during the mediation did Attorney mention the SL Report to Plaintiff, Judge Thrasher, Tallen, or Tallen’s counsel. 30. On January 15, 2016, Attorney filed a notice ofsettlement, and the court dismissed the Tallen Litigation with prejudice. ak. Due to Attorney’s hasty, and sub-par drafting, the executed agreement was so vague and ambiguous that the parties disputed virtually every material term and requirement. In fact, because the agreement omitted key points and material terms, arbitration on these issues including questions of enforceability of the entire agreement are currently before JAMS Arbitration in Los Angles, California, for which Plaintiff continues to bear expense. The shoddy drafting of the agreement was so apparentthat the presiding judge, the Honorable Judge Elizabeth White, in a subsequent hearing, admonished Attorney in open court for such a poorly drafted agreement on February 18, 2016. In fact, Attorney was so strongly chastised that he vowed he would never enter Judge White’s courtroom again. Attorney subsequently withdrew as Plaintiff's counsel in May 2016 because the representation required him to go before Judge White, which he blatantly refused to do. 32. Waiving their right to the mediation privilege, on January 13, 2016, the parties commenced arbitration under JAMS to determine their respective rights and duties, if any, under the settlement agreement. The JAMS action is ongoing. 33 On or about January 15, 2016, Plaintiff discovered that Holmes had previously completed the SL Report, and had provided it to Attorney on or about January 5, 2016. She discovered this after going 6COMPLAINT FOR DAMAGES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 against Attorney’s wishes and contacted Holmes directly. 34. The Honorable Judge Thomas Thrasher (Ret.), who also served as the mediator during the January 13, 2016 mediation, was appointed to serve as the parties’ arbitrator pursuant to the mediated settlement agreement. Attorney initially represented Plaintiff during the arbitration.; however, Attorney never presented the SL Report to Judge Thrasher, or submitted it into evidence. 35. Shortly thereafter, on May 17, 2016, Attorney moved to be relieved of counsel, which was granted and ordered on June 16, 2016. Plaintiff began representing herselfpro per at that time. The arbitration before JAMS is ongoing. Plaintiff has since hired new counsel to assist her and has incurred costs related thereto. 36. To date, Plaintiff has paid Attorney at least $412,907.28 in legal fees during the course of his representation. This is in addition to other fees and retainers paid to Attorney for experts that Attorney never utilized, nor did he plan to use. FIRST CAUSE OF ACTION (Negligence — Legal Malpractice) (Against All Defendants) 37. Plaintiff realleges and incorporates herein by reference each and every allegation of paragraphs 1 through 36 of this Complaint. 38. Defendants were, at all relevant times, attorney of record, or associated counsel, for and on behalfof Plaintiff in the underlying action. Accordingly, Defendants owed a duty of reasonable care, skill, diligence, and fidelity to Plaintiff that is required of attorneys representing their clients. Furthermore, at all times relevant herein, Attorney was a certified public accountant, and held himself to be a specialist in matters of accounting, so he was under a heightened standard of care to render his legal services with the level of competence, diligence, skill, knowledge, and judgment meeting the standard of care for other members of the legal profession who hold themselves out as such specialists with such resources. 39. In rendering legal services to the plaintiff, and pursuant to such representation, Defendants fell below this standard of care thereby breaching their duty owed to Plaintiff by: 1. Failing to conduct adequate and timely discovery of relevant facts, including depositions of Tallen and accounting experts, related to proving Tallen’s theft of $3.67 million; -- COMPLAINT FOR DAMAGES 10 11 12 13 14 15 16 17 18 19 20 21 ad 23 24 25 26 27 28 2. Advising Plaintiff to spend $120,000 on a forensic accounting that Attorney failed to utilize, submit into evidence, or provide to Plaintiff; 3. Convincing Plaintiff to abandon the Tallen litigation and instead settle without informing her that Jamie Holmes had identified $3.7 million converted by Tallen; 4. Drafting and advising Plaintiff to execute a settlement agreement that contained unreasonable terms, unenforceable terms, or both. 40. Defendant’s breached their obligations to Plaintiff by doing, or failing to do, the foregoing, and by failing to use that degree of legal skill, care, knowledge, and learning, which are ordinarily and commonly possessed by attorneys in good standing practicing in the same locality as Defendants. 41. Thatas a direct and proximate cause of Defendants negligence the Plaintiff has sustained, and will continue to sustain damages in the form of reasonable attorney fees and other costs, in an amount to be proven at trial, but which exceeds the jurisdictional minimums ofthis court. SECOND CAUSE OF ACTION (Negligence Per Se — Legal Malpractice) (Against All Defendants) 42. Plaintiff realleges and incorporates herein by reference each and every allegation of paragraphs 1 through 41 of this Complaint. 43. That Defendants’ failure to advise Plaintiff of the existence of the SL Report while advising her to abandon trial was of such was wanton, reckless, outrageous and done with callous disregard to the rights of the Plaintiff. 44. Defendants violated California Rules of Professional Responsibility Rule 3-100 and Rule 3- 500 by recklessly and repeatedly failing to perform legal services with competence and byfailing to keep the client reasonably informed and by advising Plaintiff to enter into a settlement agreement that was against her best interests. 45. That as a direct and proximate cause of Defendants’ negligence Plaintiff has sustained, and will continue to sustain damages, including damages in the form of reasonable attorney fees and other costs, in an amount to be proven at trial, but which exceeds the jurisdictional minimums ofthis court. 8 COMPLAINT FOR DAMAGES THIRD CAUSE OF ACTION (Breach of Fiduciary Duty) (Against All Defendants) 46. Plaintiff realleges and incorporates herein by reference each and every allegation set forth in paragraphs 1 through 45 ofthis complaint. 47. As Plaintiff's attorneys, Defendants owed Plaintiff a fiduciary duty of honesty and integrity; a duty to act with utmost care and diligence; and a duty to act in the best interest of Plaintiff. 48. At all times mentioned herein, said fiduciary relationship reasonably created on the part of Plaintiff a right to anticipate that Defendants would operate with trust, confidence, fidelity and integrity to protect Plaintiff’s interests. 49. Despite having voluntarily accepted Plaintiff's trust and confidence with regard to their actions, Defendants abused their position of trust and failed to protect Plaintiff's interests. From the start of litigation, Plaintiff was adamant of exposing the theft by Tallen at trial. Plaintiff spent well over $120,000 to procure the SL Report demonstrating this theft. Attorney, who retained Singer Lewak for this purpose, intentionally or recklessly failed to not only present the findings to a neutral or opposing counsel, but also failed to even present it to Plaintiff. As a result, Plaintiff was put in a perilous situation and became subject to Attorneys personal and self-serving interest to settle the case before being fully informed ofthe case’s merits, through the complete findings of the SL Report, knowledge that Attorney intentionally or recklessly chose to keep to himself. 50. Asa direct and proximate results of Defendants’ breaches of fiduciary duty, Plaintiff has sustained substantial damages and has incurred and continues to incur costs, including reasonable attorneys’ fees, in an amount to be proven at trial, but which exceeds the jurisdictional minimums ofthis court. FOURTH CAUSE OF ACTION (Fraud/Intentional Misrepresentation) (All Plaintiffs Against All Defendants) ake Plaintiff realleges and incorporates herein by reference each and every allegation set forth in paragraphs 1 through 50 this complaint. 9 COMPLAINT FOR DAMAGES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 | 52. In Attorney’s handling of the Tallen Litigation, Attorney actively and continuously represented on behalf of himself and The Firm that from December 29, 2015, to January 13, 2016, the SL Report was not fully completed. 53. The SL Report and its findings were material, as they key to her claims in the Tallen Litigation, since they unequivocally demonstrated Tallen’s theft of monies owned by the entities therein involved. 54. In truth, the SL Report was completed before January 5, 2016. Attorney had knowledge of this fact; such knowledge is confirmed by internal e-mails sent to and from Attorney and The Firm. 5 8 Attorney intended to induce Plaintiff into believing this falsity to convince Plaintiff to pursue settlement, so as to conceal his unpreparedness for trial and poor health, despite repeatedly promising to take the case to trial, as per Plaintiff’s wishes. 56. Unaware ofthe falsity of Attorney’s representations, Plaintiff acted in reliance on Attorneys false representations, and agreed to pursue settlement. Given that Attorney also so vehemently misrepresented that Plaintiff would surely lose at trial, should she not agree to pursue settlement, this reliance was also justifiable. Plaintiff reasonably relied to her detriment upon Attorney’s misrepresentations because she had no reason to doubt Attorney’s veracity or represented expertise. 57. Had Plaintiff knew the truth behind these misrepresentations, Plaintiff would not have pursued settlement, and would have continued her assertions to take the Tallen Litigationto trial. 58. As a proximate result of Defendants’ misrepresentations, Plaintiff conceded to Attorney’s aggressive pursuit towards settlement, which resulted in a poorly drafted settlement agreement currently in dispute. 59. Accordingly, as a direct and proximate result of Defendants’ misrepresentations Plaintiff has incurred and continues to incur costs including reasonable attorneys’ fees and continued expense in her attempt to remedy the misconduct perpetrated by the Defendants. These damages are in an amount to be proven at trial, but which exceed the jurisdictional minimums ofthis court. 60. Furthermore, Plaintiff is informed and believes, and thereon allege, that Defendants’ aforementioned acts were taken with malice, fraud, and oppression and in conscious disregard for Plaintiffs rights, and were done willfully and with the intent to cause injury to Plaintiff. Accordingly, Plaintiff is entitled to an award of exemplary and punitive damages against Defendants. \\\ | \W\ 10 COMPLAINT FOR DAMAGES FIFTH CAUSE OF ACTION (Fraud by Negligent Misrepresentation) (Against All Defendants) 61. Plaintiff realleges and incorporates herein by reference each and every allegation set forth in paragraphs 1 through 60 ofthis complaint. 62. Attorney continuously represented that from December 29, 2015,to January 13, 2016 that the SL report was not completed and unavailable. 63. Given that the SL Report unequivocally demonstrated Tallen’s theft of monies owned by the entities involved in the Tallen Litigation, the availability of the SL Report was a material fact to Plaintiff. Had she known ofthe availability of the SL Report, she would not have conceded to Attorney’s aggressive campaign to pursue settlement. 64. Pursuant to internal e-mails sent to and from Defendants, Attorney knew this misrepresentation to be false. 65. Defendants, by and through their employment as Plaintiff's attorneys, were under a duty to disclose the truth of the SL Report’s availability. In failing to disclose this fact, Attorney played on the emotional vulnerability of the Plaintiff due to the loss of her mother, to act with the intent to induce reliance by Plaintiff to engage in settlement. Attorney never intended to take the case to trial because he was unprepared and unwilling to do so. 66. Based on Defendants’ representations of their knowledge and specialization in the | underlying matters and in accordance with Attorney’s aggressive representations that Plaintiff would surely lose should she go to trial, Plaintiff reasonably and justifiably relied on advice to pursue settlement. At the time the advice was given, Plaintiffs did not know Defendants’ representations were false and incorrect. 67. As a direct proximate result ofthis negligent representation, Plaintiff has suffered and continues to suffer actual damages in the form of attorney’s fees and costs incurred in the continued Tallen Litigation. 68. Furthermore, Plaintiff is informed and believes, and thereon allege, that Defendants’ aforementioned acts were taken with malice, fraud, and oppression and in conscious disregard for [ Plaintiffs rights, and were done willfully and with the intent to cause injury to Plaintiff. Accordingly, Plaintiff is entitled to an award of exemplary and punitive damages against Defendants. 11 | COMPLAINT FOR DAMAGES O O 0 0 N N O N W n A r W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SIXTH CAUSE OF ACTION (Fraud by Concealment) (Against All Defendants) 69. Plaintiff realleges and incorporates herein by reference each and every allegation set forth in paragraphs 1 through 68 ofthis complaint. 70. Defendants intentionally failed to disclose the important fact that the SL Report was available before the settlement date on January 13, 2016. This fact was material because the SL Report was a forensic accounting that contained evidence of how the Receiver Report was wrong and the exact amount of money—=$3.67 million—Tallen converted from the jointly-owned entities in the Tallen Litigation. Defendants also intentionally failed to disclose the findings of the SL Report to client, despite having knowledge ofthe findings of the report before receiving the report. 71. Defendants actively concealed said important facts from plaintiffs and prevented them from discovering that fact. 12. As Plaintiff's attorneys, Defendants had a duty to disclose these material facts to plaintiff. 13, The Defendant intended to and actively concealed that the SL Report was ready and available for Plaintiff's review because Plaintiff would never have agreed to pursue Defendants’ adverse settlementinterests. By concealing this material fact and all related material facts, Defendants did in fact induce Plaintiff to believe that she would surely lose at trial, and must therefore settle her case. 74. Plaintiff was unaware ofthis fact and could not have possibly been made aware because of Defendants’ efforts to prevent communication between Singer Lewak and Plaintiff. Ta. Had Plaintiff known ofthese facts, she would not have conceded to Attorney’s aggressive campaign to enter into settlement because Plaintiff would not have entered into such a shoddy agreement without having addressed $3.6 million in converted funds by Tallen. 76. As a direct and proximate result of the foregoing concealment Plaintiff has incurred and continues to incur damages in the form of reasonable attorney fees and other costs, an amount to be proved at trial, to remedy the effects perpetrated by the Defendants’ misconduct. 77. Furthermore, Plaintiff is informed and believes, and thereon allege, that Defendants’ aforementioned acts were taken with malice, fraud, and oppression and in conscious disregard for Plaintiffs rights, and were done willfully and with the intent to cause injury to Plaintiff. Accordingly, Plaintiff is entitled to an award of exemplary and punitive damages against Defendants. 12 | COMPLAINT FOR DAMAGES O O 0 0 N N o O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SEVENTH CAUSE OF ACTION (Breach of Contract) (Against All Defendants) 78. Plaintiff realleges and incorporates herein by reference each and every allegation set forth in paragraphs 1 through 77 ofthis complaint. 79. In the parties’ mutually executed fee agreement, Defendants promised to provide those legal services reasonably required to represent Plaintiff, and Defendants promised to keep Plaintiff reasonably informed of their progress. In accordance with the fee agreement, Plaintiff was billed by Defendants approximately $500,000, which Plaintiff paid. 80. Plaintiffhas performed all ofthe terms, conditions, and obligations on her part to be performed pursuant to fee agreement, except those things excused, waived and/or made impossible by the conduct of the Defendants. 81. Defendants breached the contract by failing to perform services diligently and failed to keep plaintiff reasonably informed of developments in the “underlying”case, including but not limited to their possession of evidence ofsignificant importance to Plaintiff, but which Defendants withheld. In addition, Defendants settled a valuable claim for a fraction of its value because they falsely represented to Plaintiff that the settlement was in Plaintiff's best interests. 82. Asa direct and proximate result of the breaches, Plaintiff has suffered damages in an amount to be proven attrial, but in no eventless than the jurisdictional minimum ofthis court. WHEREFORE, Plaintiffs Pray for judgment against Defendants, and each of them,as follows: PRAYER FOR RELIEF 1. For general and compensatory damages in excess of $500,000.00, according to proof; 2. Disgorgement of all fees paid by Plaintiff to Defendants which totals in excess of $412,907.28; 3. For punitive damages and exemplary damages, according to proof; 4. For costs of suit herein incurred; 5. For prejudgment interest; and a For such other and further relief as the Court may deem proper. 13 COMPLAINT FOR DAMAGES W w w n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 \\\ \\ JURY DEMAND Plaintiff hereby demandstrial by jury. Respectfully Submitted Date March 2, 2017 14 Mary Anne Keshen, In Pro Per I COMPLAINT FOR DAMAGES EXHIBIT B Keshen, Mary Anne, ) CASE NO. ) REF. NO. 1200051202 Plaintiff(s) ) vs. ) ) STIPULATION FOR SETTLEMENT Tallen, Terrence ) C.C.P. § 664.6 ) Defendant(s) ) This case having come before Hon. Thomas N. Thrasher, Sr. (Ret.) for mediation at the offices of JAMS,and the parties having conferred,it is hereby stipulated that this matter is deemed settled pursuant 1. The Dartoes qaree +v Yhe 4800s beretsand a5 J plaintiffs) 01 Vie ath, hne/td lately andiohisheribiretiomey sumrof$— in full settlement and to the following terms and conditions: compromise of this action and in release and discharge of any and all claims and causes of action made in this action, and in release and discharge of any and all claims and causes of action arising out of the events or incidents referred to in the pleadings in this action. _ The parties agree 4 Yee +e/nmS 2. Plaintifftsiagree-to-aceept-saidsum-in full settlement and compromise of the action and agree that such payment shall fully and foreverRRrelease all claims and causes of { artes have action, whether now known or now unknown, which plait against any and all of the 0+ dekondanis in that action. This settlement includes an express waiver of Civil Code § 1542, which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." 3. Plaintiff(s) further agree to sign, acknowledge and deliver to defendants a standard form of a Release ofall such claims and causes of action and to sign and deliver to defendants a standard form of Dismissal with Prejudice of the action. 5. Counselfor each ofthe partiesto this agreement represents that he/she has fully explained to his/her client(s) the legal effect of this agreement and of the Release and Dismissal with Prejudice provided for herein and that the settlement and compromise stated herein is final and conclusive forthwith, and each attorney represents that his/her client(s) has freely consented to and authorized this agreement. Payment of the stafed settlement amou all be made by / 7. Unless otherwise stated herein, each party will bear its own attorneys' fees-and court costs. 8. Other terms and conditions: See ottuched Yerms heres whe harp Fully ‘NegPorat. here on 9. Any provisions of Evidence Code §§ 1115 - 1128 notwithstanding, this Stipulation is binding and may be enforced by a motion under Code of Civil Procedure § 664.6 or by any other procedure permitted by law in the applicable state or federal court. 10. This Stipulation is admissible and subject to disclosure for purposes of enforcing this settlement agreement pursuant to CCP § 664.6, or any other procedure permitted by law, and the provisions of the confidentiality agreementsigned by the parties relative to this mediation are waived with respect to this Stipulation. é / RoderTBifngtnBs Buffington Law Firm, PC sg ZL C. Fussglmad.Esq. Thorsnes Bartolotta McGuire J Mary Anne Keshen F\Apps\Jams32\Template\MEDIATION\FORMS\Stipulation for Settlement.rtf Settlement terms as between Terrence P. Tallen and Mary Anne Keshen: 1. ‘Anne Keshen to receive the Malibu Property (TKH-Zuma). 2. FIRE 3. rrres 7 Anne Keshen to receive the TKH-CPI (Walgreens Property-New Mexico) Tallen to receive TKH BAR (Beck Ave.) | viene Tallow +o o=clive TKR sobect +0 Conditions in Ra. Terrence Tallen to receive MPRI/MBI (“Marina”) Terrence Tallen to receive REG (“50% owner ofNapa Tahoe Specialty Retail, B ofA ground leasef and strip shopping center). o& all «Yor Cpporensa dass Keshen to forfeit Anne Keshen’s $50,000 interest in the Rossmoor investment in favor, Tallen. However, as a condition precedent thereto, such transfer shall not be effective unless and until Anne Keshen is completely removed as a guarantor of any loan in pF X ww connection with such investment. As from the date of this agreement, Keshen is not oefor any capital calls deriving from the Rossmoor investment and Tallen shall & £1 Vs GF 10. 11. 12. 13. 14. be responsible for such prior to the occurrence ofthe condition precedent supra. Any le Boosts)associated with same shall be borne by Tallen oo 2¢.+e QOvendies Lor ane of Ln Pyro deg +o be omaved A 7 AfSoceineesip %fees already paid shall be deemed to be absorbed bythe Receivership Hoon Estate as presently the case and shall not be re-allocated. The Parties explicitly stipulaf )q “ that this matter is deemed settled as between the Parties and is a material term ofthis G4 Settlement which can be entered if necessary as a stipulated order. Any dispute over this issue shall be decided by Judge Thrasher sitting as arbitrator and such decision may be geredas an arbitration decision. Ale ober for |(3{Beg aA Leen“andibiey, “. Respeckive SYNCH Sdemnily New twhevesd 3 All receivership fees presently unpaid shall be the equaliyofdalenanandLAA Are . Keshen. oTFhe own ONA The Bramanti Art Collection shall be divided equally. Personal property shall be'diviasaSsrah equally. Any dispute about such division shall be decided by Judge Thrasher siting as tr arbitrator for such limited purpose. PO proparty 40 be Pevmored fun § as Coo Prowctsesl. GF Anne Keshen shall be the assignee on the part of all entities as regards foJLObjco0s/ to the past (or future) Ted Phelps Receivership or audit/accounting/attorneys’ fees or any other Phelps fees or costs. All recovery from such Objections shall be the sole property of Anne Keshen. Any increase in Receivership fees due to such Objections shall be the responsibility ofAnne Keshen. This Agreementshall be binding upon the Parties. The Parties shall, through counsel, enter timely into a more formal binding written agreement. N Yh Any dispute over a material term of this Agreement or the subsequent more complete agreement shall be decided by Judge Thrashersitting as Arbitrator. The Lawsuit to be dismissed by all Parties with prejudice forthwith and notlater than January 19, 2016 and a Notice of Settlementfiled by January 15, 2016. The Parties to enter into a mutual and general release of all claims coupled withi release. ra Code {J 15. All other court costs and attorneys’ fees shall lie with their respective parties. 16. The Parties stipulate as to the removal of Ted Phelps as Receiver herein forthwith, and seek to effectuate this removal by the Court as soon as practicable. 7. MAK to recone Trholian chandelie, pa0recenae Pa Lreewe chadelvern gr 91 82 /4 8/ 90 ® EXHIBIT C ® J ed Got SGN FEANFAFHT-RULING D HEARING DATE: June 2, 2016 DISMISSED: February 29, 2016 CASE: Mary Anne Keshen, in the Right of and in the Benefit of Retail Enterprise Group, Inc. v. Terrance Tallen aka Terrence Tallen aka Terry Tallen, et al. F ILED Superior Court ofCaliforma CASE NO.: BC503552 County of Los Angeles Opposed:# .. Yes. JUN 022016 MOVING PARTY: Defendant/Cross-Complainant Terrance Tallen RESPONDING PARTY(S): Plaintiff/Cross-Defendant Mary Anne Keshen. PROOF OF SERVICE: eo Correct Address: Yes. e 16/21 (CCP § 1005(b)): OK. Served by email on May 13, 2016; hearing set per May 16, 2016 minute order. e GRANT motion to compel arbitration. ANALYSIS Motion To Compel Arbitration (CCP § 664.6). This action was dismissed on February 29, 2016, with the Court retaining jurisdiction pursuant to CCP § 664.6. The Court only has jurisdiction pursuant to CCP § 664.6 to enforce the terms of the written settlement signed by both parties. Here, the only written settlement agreement submitted in support of this motion is the Stipulation of Settlementattached as Exhibit 1. At § 12 of the attachmentto the Stipulation, the parties agreed that “[a]ny dispute over a material term ofthis Agreement or the subsequent more complete agreementshall be decided by Judge Thrasher sitting as Arbitrator.” As such, Defendant Tallen is entitled to an order compelling arbitration before Judge Thrasher. However, to the extent Defendant seeksto limit the issuesto only division ofthe art collection, division of personal property and the termsof the formalrelease, the request is not well-taken. Per the parties written settlement agreement, the permissible issues to be arbitrated included any material term included in the Stipulation for Settlement and attachment thereto. Sherr R Carter, Executive Offices/Clerk By . Deputy Anthony®#e 4MOTION TO COMPEL ARBITRATION (CCP § 664.6) 4 ) en an == ~~ tet [acd fe) As such, the motion to compel arbitration is GRANTED as indicated above. Case Summary: EXHIBIT D Case Id: |30-2017-00952663-CU-PN-CJC Case Title: KESHEN VS BUEFINGTON LAW FIRM Case Type: PROFESSIONAL NEGLIGENCE Filing Date:| 10/30/2017 Category: |CIVIL - UNLIMITED Register Of Actions: ROA Docket Filing [Filing Document Select Date [Party 1 LEGACY CASE INITIATED. 10/30/2017 NV COMPLAINT (3/3/17) FILED BY KESHEN, MARY ANNE ON 2 10/30/2017 10/30/2017 15 pages CIVIL CASE COVER SHEET (3/3/17) FILED BY KESHEN, 3 MARY ANNE ON 10/30/2017 10/30/2017 6 pages SUMMONS ISSUED AND FILED (3/3/17) FILED BY KESHEN, 4 MARY ANNE ON 10/30/2017 1073072017 I pages 5 ORDER TO SHOW CAUSE HEARING 3/17/17 10/30/2017 1 pages 6 NOTICE OF CASE MANAGEMENT CONFERENCE 3/17/17 [10/30/2017 1 pages PROOF OF SERVICE OF SUMMONS (5/2/17) FILED BY 7 KESHEN. MARY ANNE ON 10/30/2017 10/30/2017 I pages PROOF OF SERVICE BY MAIL (5/2/17) FILED BY KESHEN, 8 MARY ANNE ON 10/30/2017 10/30/2017 I pages PROOF OF SERVICE OF SUMMONS (5/4/17) FILED BY 10 KESHEN. MARY ANNE ON 10/30/2017 10/30/2017 3 pages PROOF OF SERVICE OF SUMMONS (5/9/17) FILED BY 1 KESHEN, MARY ANNE ON 10/30/2017 1073072017 I pages DECLARATION OF DUE DILIGENCE (5/9/17) FILED BY 12 KESHEN, MARY ANNE ON 10/30/2017 1073072017 I pages PROOF OF SERVICE BY MAIL (5/9/17) FILED BY KESHEN, 13 MARY ANNE ON 10/30/2017 10/30/2017 I pages MOTION FOR CHANGE OF VENUE (5/26/17) FILED BY 14 |BUFFINGTON LAW FIRM: ROGER J. BUFFINGTON, ESQ. ON [10/30/2017 45 pages 10/30/2017 CASE MANAGEMENT STATEMENT (6/16/17) FILED BY 15 |BUFFINGTON LAW FIRM: ROGER J. BUFFINGTON, ESQ. ON [10/30/2017 6 pages 10/30/2017 | OPPOSITION (6/19/17) FILED BY KESHEN, MARY ANNE ON 0000 Ns 10/30/2017 17 MINUTES 6/19/17 10/30/2017 3 pages REPLY - OTHER (6/23/17) FILED BY BUFFINGTON LAW 18 FIRM ON 10/30/2017 10/30/2017 15 pages PROOF OF SERVICE BY MAIL (6/29/17) FILED BY KESHEN, 19 MARY ANNE ON 10/30/2017 10/30/2017 2 pages CASE MANAGEMENT STATEMENT (6/29/17) FILED BY 20 KESHEN. MARY ANNE ON 10/30/2017 10/30/2017 10 pages 21 RULING 6/30/17 10/30/2017 4 pages 22 NOTICE - OTHER (6/30/17) FILED BY BUFFINGTON LAW [10/30/2017 8 pages FIRM ON 10/30/2017 23 MINUTES6/30/17 10/30/2017 2 pages 24 CIVIL DEPOSIT 10/30/2017 1 pages 25 REGISTER OF ACTIONS 10/30/2017 6 pages 26 NOTICE OF OUTGOING TRANSFER 10/25/17 10/30/2017 1 pages 27 NOTICE OF OUTGOING TRANSFER 10/25/17 10/30/2017 1 pages 28 RECEIPT FOR PAPERS RE: CHANGE OF VENUE/TRANSFER [10/30/2017 1 pages PAYMENT RECEIVED BY MAK REALTYMEDTECH »9 HOLDINGS LLC FOR 194 - COMPLAINT OR OTHER IST |,211n; | pages PAPER IN THE AMOUNT OF 435.00, TRANSACTION NUMBER 12245516 AND RECEIPT NUMBER 12069256. CASE ASSIGNED TO JUDICIAL OFFICER FELL, SHEILA ON 30 10/30/2017. 10/30/2017 1 pages NOTICE OF TRANSFER, RECLASSIFICATION AND/OR 31 CONSOLIDATION 10/30/2017 1 pages CASE MANAGEMENT CONFERENCE SCHEDULED FOR 32 03/08/2018 AT 08:45:00 AM IN C25 AT CENTRAL JUSTICE [11/07/2017 2 pages CENTER. 33 E-FILING TRANSACTION 1445643 RECEIVED ON 11/30/2017 5/01 y 04:01:42 PM. 24 MOTION TO STRIKE FILED BY ROGER J. BUFFINGTON, [|20/0 7 pages ESQ.; BUFFINGTON LAW FIRM ON 11/30/2017 PAYMENT RECEIVED BY ONELEGAL FOR 36 - MOTION OR 35 OTHER (NOT IST) PAPER REQUIRING A HEARING IN THE |01 | pages AMOUNT OF 60.00, TRANSACTION NUMBER 12261443 AND RECEIPT NUMBER 12085143. MOTION TO STRIKE SCHEDULED FOR 01/24/2018 AT 36 10:00:00 AM IN C25 AT CENTRAL JUSTICE CENTER. |/ 2/01/2017 Nv 37 PROPOSED ORDER RECEIVED ON 12/05/2017 12/05/2017 4 pages 1g E-FILING TRANSACTION 3613963 RECEIVED ON 12/05/2017 [>11 Ns 10:53:57 AM. MOTION TO COMPEL FILED BY BUFFINGTON LAW FIRM; 39 ROGER J. BUFFINGTON, ESQ. ON 12/05/2017 12/05/2017 60 pages PAYMENT RECEIVED BY ONELEGAL FOR 36 - MOTION OR 40 OTHER (NOT 1ST) PAPER REQUIRING A HEARING IN THE |,1/1 | pages AMOUNT OF 60.00, TRANSACTION NUMBER 12263848 AND RECEIPT NUMBER 12087568. PAYMENT RECEIVED BY ONE LEGAL LLC FOR 36 - MOTION OR OTHER (NOT 1ST) PAPER REQUIRING A a HEARING, 36 - MOTION OR OTHER (NOT IST) PAPER |1 | pages REQUIRING A HEARING IN THE AMOUNT OF 120.00, TRANSACTION NUMBER 12263850 AND RECEIPT NUMBER 12087570. MOTION TO COMPEL ANSWERS TO FORM 42 INTERROGATORIES SCHEDULED FOR 01/31/2018 AT [12/07/2017 NV 10:00:00 AM IN C25 AT CENTRAL JUSTICE CENTER. MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL 43 INTERROGATORIES SCHEDULED FOR 02/07/2018 AT 12/07/2017 NV 10:00:00 AM IN C25 AT CENTRAL JUSTICE CENTER. MOTION TO COMPEL PRODUCTION SCHEDULED FOR 44 02/07/2018 AT 10:00:00 AM IN C25 AT CENTRAL JUSTICE [12/07/2017 NV CENTER. 45 E-FILING TRANSACTION 4796124 RECEIVED ON 12/13/2017 12/13/2017 NV 11:06:49 AM. NOTICE OF CONTINUANCE FILED BY ROGER J. 46 BUFFINGTON, ESQ. ON 12/13/2017 12/13/2017 3 pages 47 E-FILING TRANSACTION 2630964 RECEIVED ON 01/17/2018 01/17/2018 NV 12:24:27 PM. NOTICE OF NON-OPPOSITION FILED BY BUFFINGTON LAW 48 FIRM ON 01/17/2018 01/17/2018 5 pages MINUTES FINALIZED FOR MOTION TO STRIKE 01/24/2018 49 10:00:00 AM. 01/24/2018 1 pages 50 E-FILING TRANSACTION 1461840 RECEIVED ON 01/24/2018 01/24/2018 NV 02:06:18 PM. NOTICE OF RULING FILED BY BUFFINGTON LAW FIRM ON 51 01/24/2018 01/24/2018 5 pages E-FILING TRANSACTION 2635414 RECEIVED ON 01/30/2018 52 09:53:26 AM. 01/30/2018 NV OPPOSITION FILED BY KESHEN, MARY ANNE ON 53 01/30/2018 01/30/2018 10 pages 54 E-FILING TRANSACTION 2636249 RECEIVED ON 01/31/2018 01/31/2018 NV 04:55:28 PM. REPLY - OTHER FILED BY BUFFINGTON LAW FIRM ON 55 01/31/2018 01/31/2018 10 pages 56 E-FILING TRANSACTION NUMBER 2618462 REJECTED. [02/01/2018 1 pages 57 E-FILING TRANSACTION 3632327 RECEIVED ON 02/01/2018 02/02/2018 NV 01:18:43 PM. CROSS-COMPLAINT FILED BY BUFFINGTON LAW FIRM ON 58 02/01/2018 02/01/2018 7 pages 59 E-FILING TRANSACTION 1465357 RECEIVED ON 02/02/2018 02/02/2018 NV 01:39:49 PM. 60 ANSWER TO COMPLAINT FILED BY BUFFINGTON LAW 02/02/2018 7 Daves FIRM; ROGER J. BUFFINGTON, ESQ. ON 02/02/2018 pag Participants: Name Type Assoc Start Date End Date BUFFINGTON LAW FIRM CROSS - COMPLAINANT 02/02/2018 ROBIE & MATTHAI ATTORNEY 10/31/2017 ROGER J. BUFFINGTON, ESQ. DEFENDANT 10/31/2017 BUFFINGTON LAW FIRM DEFENDANT 10/31/2017 LAW OFFICE OF HENRY B LATORRACA ATTORNEY 02/02/2018 MARY ANNE KESHEN PLAINTIFF 10/31/2017 MARY ANNE KESHEN CROSS - DEFENDANT 02/02/2018 Hearings: Description Date |Time|Department| Judge CASE MANAGEMENT CONFERENCE 03/08/2018 08:45 C25 FELL MOTION TO COMPEL ANSWERS TO FORM INTERROGATORIES (02/07/2018(10:00|C25 FELL MOTION TO COMPEL PRODUCTION 02/07/2018(10:00({C25 FELL MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES 02/07/2018(10:00(C25 FELL Print this page