Motion_to_bifurcateMotionCal. Super. - 4th Dist.July 25, 2018BH W N Oo 0 3 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Tony Forberg, Esq. (SBN172220) Law Offices of Tony Forberg 16501 Ventura Blvd Suite 400 Encino CA 91436 Telephone: (818) 484-7823 Facsimile: (888) 777-4030 Attorneys for: Defendants, Jeremy J. Alberts, individually and dba The Alberts Firm APC, Christian F. Paul SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES NAGI ISKANDER, individually, and as CASE NO. 30-2018-01007728-CU-PN-CJC Trustee of the Nagi Iskander and Amal Iskander | Assigned to: Honorable Gregory H. Lewis — AB Living Trust dated March 10, 2010 Dept. C26 DEFENDANTS’ NOTICE OF MOTION Plaintiffs, AND MOTION FOR BIFURCATION, Vs DECLARATION OF TONY FORBERG [REQUEST FOR JUDICIAL NOTICE FILED Jeremy J. Alberts, individually and dba The CONCURENTLY BUT SEPARATELY] Alberts Firm APC, Christian F. Paul et. Al. Date: March 30, 2019 Time: 10:30 a.m. Place: C26 Defendants. Reservation Number: 73204146 TO THE COURT, ALL PARTIES, AND ALL COUNSEL OF RECORD: PLEASE TAKE NOTICE that, on the above-stated date and time, or as soon thereafter as the matter may be heard in Department C26 of the Orange County Superior Court, Central Justice Center, the Honorable Gregory H. Lewis, Judge presiding, defendants Jeremy J. Alberts (“Alberts”), Law Office of 1 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR BIFURCATION, DECLARATION OF TONY FORBERG W N Oo 0 3 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jeremy J. Alberts, APC (“APC”), and Christian F. Paul (“Paul”) will and hereby do move the Court for an order to bifurcate trial into two phases, along with orders setting the sequence of presentation and argument at trial. Specifically, this motion seeks an order to try the issue of professional negligence first, and if and only if the jury should find for plaintiff on that issue, to try the case-within-a-case to the same jury second, with evidence of plaintift’s claimed damages presented last of all. The ground for the motion is that separating the issues for trial will further the goals of judicial economy, fairness, efficiency, and expedition, without prejudicing any party. The motion is made pursuant to provisions of Code of Civil Procedure sections 598 and 1048, and other law, based upon the foregoing notice, the attached memorandum of points and authorities, the separately filed declaration of Tony Forberg and request for judicial notice, all papers on file in this action, and such other evidence as may be adduced at the hearing. So, TONY FORBERG Attorney For Defendants, Jeremy J. Alberts, individually and dba The Alberts Firm APC, Christian F. Paul January 15, 2020 2 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR BIFURCATION, DECLARATION OF TONY FORBERG BH W N Oo 0 3 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Please see the separately filed Declaration of Tony Forberg for support for facts asserted in this demurrer. Exhibits referred to are attached to the declaration and are referred to in the Request for Judicial Notice (“RIN”). Complaint. This action was commenced July 25, 2018, upon the filing of Iskander’s complaint for legal malpractice against Alberts, APC, and Christian F. Paul. (For a copy, see RJN 1, Exhibit 1.) The complaint asserts just the one cause of action, pleading that the defendants could and should have presented unidentified evidence in opposition to a motion for summary judgment in a lawsuit entitled Iskander v. Biddle, San Bernardino County Superior Court Case No. CIVDS1405337. It also pleads that if defendants had presented that evidence, Iskander would have prevailed on the summary judgment motion and would have gone on to win judgment in the lawsuit. First amended complaint. After some discovery and with a motion for summary judgment pending, Iskander filed a motion for leave to file an amended complaint, which the Court granted on or about November 4, 2019. Iskander’s FAC was filed November 7, 2019. (RJN 2, Exhibit 2). The FAC asserts four causes of action: (1) legal malpractice as against all three defendants; (2) piercing the corporation [sic] veil as against Alberts; (3) constructive trust and disgorgement of fees as against Alberts and APC; (4) breach of contract as against Alberts and APC. The first cause of action of the FAC (5:1-8:12) essentially duplicates the sole cause of action of the complaint, professional negligence. The second cause of action (FAC 8:14-9:24) pleads on information and belief that APC is the alter ego of Alberts and Does 1-5 (8:17-26); that Alberts and APC failed “to obtain a certificate of 3 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR BIFURCATION, DECLARATION OF TONY FORBERG BH W N Oo 0 3 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 register with the State Bar of California” (8:28-9:6); failed to provide the State Bar with “proof of security for legal malpractice” (9:7-9); violating sections 17200 et seq. of the Business and Professions Code (9:10-11); “[f]ailing to adequately capitalize” APC (9:12-13); treating APC’s “assets as their own” (9:14-15); commingling funds (9:16-20); failing to maintain adequate records (9:21); disregarding legal formalities (9:22); and use of APC “as a mere shell” (9:23-24). The third cause of action (FAC 9:27-10:20) pleads that Alberts is a member of the State Bar who was suspended for a month in 2014 (10:3-5); “[b]y failing to obtain a certificate of register with the State Bar” APC “engaged in the unlawful practice of law” (10:6-10); on information and belief, Alberts practiced law while suspended (10:11-13); “[p]laintiffs [sic] have been damaged by way of defendants’ malpractice and defendants wrongfully obtained attorney fees and costs from plaintiffs [sic]” and as a result, Alberts and APC “are an involuntary trustee [sic] of the attorney fees and costs paid to them by plaintiffs [sic], and hold said fees and costs for plaintiffs’ benefit” (10:14-20). The fourth cause of action (FAC 10:22-11:11) alleges that plaintiffs [sic] and APC entered into a written agreement on or about June 19, 2014 for APC to “represent plaintiff in a lawsuit” (10:26- 11:2); APC breached the contract on or about January 3, 2016 “by failing to proved [sic] legal services reasonably required to represent plaintiffs [sic] in that lawsuit” (11:3-5); performance on the part of plaintiffs [sic] (11:6-8); and damages proximately caused (11:9-11). No copy of the written agreement is attached to the FAC. Defendants Alberts and APC filed a demurrer to the FAC as against two of these causes of action, asserting that there is no such cause of action as piercing the corporate veil (2 cause of action) and that the law of California does not permit a third party such as Iskander to receive disgorgement or to impose a constructive trust upon an attorney for failing to register as a corporation with the State 4 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR BIFURCATION, DECLARATION OF TONY FORBERG BH W N Oo 0 3 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2] 28 Bar (3" cause of action). The demurrer is set to be heard March 9, 2020. At the time of trial, regardless of the outcome of the pending demurrer, plaintiff will at a minimum have to put on his case for professional negligence and breach of the attorney fee agreement. Thus, Iskander must prove (1) that at least one defendant’s representation fell below the standard of care when the purportedly available evidence was not presented to the Iskander v. Biddle Court in opposition to Biddle’s motion for summary judgment, and (2) if that evidence had been presented to the Court, Iskander would have prevailed at trial or at least would have settled the case with Biddle on favorable terms (the case-within-a-case). (See, e.g., Ambriz v. Kelegian (2007) 146 Cal. App.4" 1519, 1531.) II. THE COURT HAS FULL DISCRETION TO ORDER THAT ANY ISSUE BE TRIED BEFORE ANY OTHER ISSUE “Trial courts generally have the inherent power to stay proceedings in the interests of justice and to promote judicial efficiency” so long as they have jurisdiction over the case. (Freiberg v. City of Mission Viejo (1995) 33 Cal. App.4™ 1484, 1489.) Further, the Court is vested with discretion to sever actions and consolidate actions whenever it can be done without prejudice to a substantial right. (Jud Whitehead Heater Co. v. Obler (1952) 111 Cal. App.2d 861, 866-867.) Trial courts also have expressly granted statutory power. Code of Civil Procedure section 598 empowers the Court to have issues tried in any order. It reads: The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case, except for special defenses which may be tried first pursuant to Sections 597 and 597.5. The court, on its own motion, may make such an order at any time. Where trial of the issue of liability as to 5 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR BIFURCATION, DECLARATION OF TONY FORBERG BH W N Oo 0 3 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2] 28 all causes of action precedes the trial of other issues or parts thereof, and the decision of the court, or the verdict of the jury upon such issue so tried is in favor of any party on whom liability is sought to be imposed, judgment in favor of such party shall thereupon be entered and no trial of other issues in the action as against such party shall be had unless such judgment shall be reversed upon appeal or otherwise set aside or vacated. If the decision of the court, or the verdict of the jury upon the issue of liability so tried shall be against any party on whom liability is sought to be imposed, or if the decision of the court or the verdict of the jury upon any other issue or part thereof so tried does not result in a judgment being entered pursuant to this chapter, then the trial of the other issues or parts thereof shall thereafter be had at such time, and if a jury trial, before the same or another jury, as ordered by the court either upon its own motion or upon the motion of any party, and judgment shall be entered in the same manner and with the same effect as if all the issues in the case had been tried at one time. Similarly, Code of Civil Procedure section 1048(b) empowers the Court to order separate trials when appropriate. It reads: (b) The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States. “Code of Civil Procedure section 598 was adopted in 1963 as the result of Judicial Council recommendations. Its objective is avoidance of the waste of time and money caused by the unnecessary trial of damage questions in cases where the liability issue is resolved against the plaintiff. [Citations.]” (Trickey v. Superior Court (1957) 252 Cal. App.2d 650, 653.) In short, whenever trial can be improved by treating different issues in a specified sequence, the Court may order the trial to follow that sequence, and should do. III. FOR TRIAL OF THIS CASE, LIABILITY OF THE DEFENDANTS FOR CLAIMED PROFESSIONAL NEGLIGENCE SHOULD BE TRIED FIRST, FOLLOWED BY ANY OTHER ISSUES, INCLUDING THE CASE-WITHIN-A-CASE AND PLAINTIFF’S CLAIMED DAMAGES 6 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR BIFURCATION, DECLARATION OF TONY FORBERG BH W N Oo 0 3 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2] 28 For Iskander to prevail on his claim of professional negligence against the defendants, he must prove four elements: duty, breach, proximate cause, and damages: The elements of a legal malpractice cause of action are “(1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney's negligence. [Citation.]” [Citation.] In a legal malpractice claim, the method for proving the element of causation has been likened to a “trial within a trial” or a “case within a case.” [Citations.] “The case-within-a-case or trial-within-a-trial approach applied in legal malpractice cases [is] an objective approach to decide what should have been the result in the underlying proceeding or matter. [Citation.]” [Citation.] (Ambriz v. Kelegian (2007) 146 Cal. App.4™ 1519, 1531, italics in original.) In proving the case-within-a-case, Iskander will have to that without defendants’ purported negligence, he would have obtained a better result in the underlying case: A plaintiff alleging legal malpractice in the prosecution or defense of a legal claim must prove that, but for the negligence of the attorney, a better result could have been obtained in the underlying action. [Citation.] The purpose of this methodology is to avoid damages based on pure speculation and conjecture. [Citation.] “Although no bright line rule tells us when this methodology must be used, if is quite clear that, when the malpractice involves negligence in the prosecution or defense of a legal claim, the case- within-a-case method is appropriately employed.” (Ibid., italics added.) (Herrington v. Superior Court (2003) 107 Cal. App.4" 1052, 1057 (italics in original; “Simply showing the attorney erred is not enough™).) If Iskander cannot prove liability against one or more defendants on his malpractice and/or contract counts (the liability phase), there is no point in trying the case-within-a-case or in putting on any evidence of damages. At the same time, if evidence and testimony about the case-within-a-case and Iskander’s purported damages are presented during the liability phase, they (1) have no relevance to liability, (2) will consume time and judicial resources unnecessarily, and (3) may cause confusion within the jury and prejudice a fair trial to defendants on the sole issue of liability. 7 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR BIFURCATION, DECLARATION OF TONY FORBERG BH W N Oo 0 3 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Therefore, bifurcation is a practical and equitable solution that the Court ought to adopt in this case. Of note: There is no prejudice to Iskander in arranging the trial this way—rather the reverse. If he can prove defendants’ negligence, he will go on to try to prove that but for the attorneys’ error, he would have prevailed against Biddle, as he has pleaded, and he may put on all of his evidence of damages as well. Nothing is lost to Iskander. At the same time, Iskander benefits from the clarity of issues for the jury, something that can only help him. There will be a single focus in the first phase: what the attorneys did and whether they malpracticed. If the jurors return a decision that Iskander proved his case of negligence, the focus will then shift in the second phase to how Iskander would have prevailed against Biddle, and what his damages are. The chance of the jury’s confusing issues is reduced, allowing the jurors to consider Iskander’s evidence properly and come to their decisions without distraction. The benefit of clarity is even more important should defendants’ demurrer be overruled and the trial consist of examining not only two related causes of action—negligence and breach of contract— but in addition two others—alter ego and disgorgement. It may prove beneficial to order trial of the latter two claims before or after trial of the case-within-a-case, for that matter, something that the Court may do sua sponte. IV. CONCLUSION “The major objective of bifurcated trials is to expedite and simplify the presentation of evidence.” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 888 (trial conducted in four phases; no need to reintroduce evidence at every stage).) Trials conducted in phases can benefit the Court, the jury, and the parties alike. 8 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR BIFURCATION, DECLARATION OF TONY FORBERG W N Oo 0 3 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In this case, it makes sense to try the case in at least two phases, which will be an improvement all around. This motion should be granted. Dated: January 15, 2020 Respectfully submitted Sp TONY FORBERG Attorney For Defendants, Jeremy J. Alberts, individually and dba The Alberts Firm APC, Christian F. Paul 9 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR BIFURCATION, DECLARATION OF TONY FORBERG W N Oo 0 3 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF TONY FORBERG IN SUPPORT OF DEMURRER I, Tony Forberg, declare: 1. Tam an attorney licensed to practice law in California and am counsel of record for defendants Jeremy J. Alberts (“Alberts”), Law Office of Jeremy J. Alberts, APC (“APC”), and Christian F. Paul. I have personal knowledge of the facts set forth herein, and if called to testify thereto could and would do so competently. 2. Attached to Request for Judicial Notice as Exhibit 1 is a true copy of the First Amended Complaint. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at Los Angeles, California. Sel Dated: January 15, 2019 Tony Forberg, Declarant 10 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR BIFURCATION, DECLARATION OF TONY FORBERG DECLARATION OF SERVICE I am employed in Los Angeles County. My business address is 16501 Ventura Boulevard Suite 400, Encino, CA 91436, where this mailing occurred. I am over the age of 18 years and am not a party to this cause. I am readily familiar with the practices of Law Office of Tony Forberg for collection and processing of correspondence for mailing with the United States Postal Service. Such correspondence is deposited with the United States Postal Service the same day in the ordinary course of business. On January 15, 2020 served the foregoing documents bearing the title: DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR BIFURCATION, DECLARATION OF TONY FORBERG on the interested parties in this action as follows: Bruce G. Schweitzer, Esq. PO Box 5306 Newport Beach, CA 92662 [ X ] (BY US MAIL) I placed such envelope(s) for collection and to be mailed on this date following ordinary business practices, with postage fully prepaid, for collection and mailing on the below indicated day following the ordinary business practices at [Firm Name and Address], for the addressee(s) listed below. I certify I am familiar with the ordinary business practices of my place of employment with regard to collection for mailing with the United States Postal Service. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit or mailing affidavit. [ ] (BY EMAIL) I caused the above described document be served via Electronic Mail to the addressee above. [ 1 (BY PERSONAL SERVICE) I caused the above described sodcuments be delivered personally by messenger for the same day deliver. 1 declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 15, 2020 in Encino, caomia C+ S ~~ Tony Forberg
