Brightwell v. Mcmillan Law Firm, Apc The et alMOTION to Dismiss for Failure to State a ClaimS.D. Cal.November 16, 2016 - 1 - NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K L IN E D IN S T P C 5 0 1 W E S T B R O A D W A Y , S U IT E 6 0 0 S A N D IE G O , C A L IF O R N IA 9 2 1 0 1 Heather L. Rosing, Bar No. 183986 Daniel S. Agle, Bar No. 251090 KLINEDINST PC 501 West Broadway, Suite 600 San Diego, California 92101 (619) 239-8131/FAX (619) 238-8707 hrosing@klinedinstlaw.com dagle@klinedinstlaw.com Attorneys for Defendants THE MCMILLAN LAW FIRM, APC; SCOTT A. MCMILLAN and MICHELLE D. VOLK UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA L. LEE BRIGHTWELL, an individual, Plaintiff, v. THE MCMILLAN LAW FIRM, APC, a professional corporation; SCOTT A. MCMILLAN, an individual; MICHELLE D. VOLK, an individual; and DOES 1 through 25, inclusive, Defendants. Case No. 16-CV-1696 W MDD NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT [No Oral Argument Pursuant to Civ. Local Rule 7.1(d)(1)] Date: January 9, 2017 Courtroom: 3C Judge: Thomas J. Whelan Magistrate Judge: Mitchell D. Dembin Complaint Filed: June 30, 2016 Trial Date: None set TO ALL COUNSEL AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on January 9, 2017, or as soon thereafter as the matter may be heard before the Honorable Thomas J. Whelan, in Courtroom 3C of the above-entitled court (Schwartz Building), located at 221 West Broadway, San Diego, California 92101, Defendants THE MCMILLAN LAW FIRM, APC, SCOTT A. MCMILLAN, and MICHELLE D. VOLK will and hereby do move this Court for an order dismissing Plaintiff L. LEE BRIGHTWELL’s Complaint. The motion is made on the following grounds: /// Case 3:16-cv-01696-W-MDD Document 14 Filed 11/16/16 Page 1 of 3 - 2 - NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K L IN E D IN S T P C 5 0 1 W E S T B R O A D W A Y , S U IT E 6 0 0 S A N D IE G O , C A L IF O R N IA 9 2 1 0 1 First, Plaintiff cannot establish Article III standing for any of her claims alleged against Defendant Michelle Volk because the allegations of the Complaint do not support a finding that Michelle Volk caused any injury to Plaintiff. Second, Plaintiff’s breach of contract and the declaratory relief causes of action should be dismissed as to Defendants Scott McMillan and Michelle Volk because they are not parties to the contract that forms the basis of those two claims. Third, the causes of action for breach of contract, fraud, professional negligence, and breach of fiduciary duty should also be dismissed as to all Defendants because the allegations of the Complaint show that none of the alleged misconduct has any causal connection to any damage claimed by Plaintiff. Fourth, Plaintiff has failed to adequately allege her fraud, professional negligence, and breach of fiduciary duty causes of action under the applicable pleading standards. Each of these bases presents independent grounds to dismiss some or all of the claims asserted by Plaintiff in this action. After applying the law to the facts alleged in this case, the only claim that should remain is the fifth cause of action for declaratory relief asserted against The McMillan Law Firm, APC. All of the other causes of action and the other two defendants should be dismissed. Defendants’ motion is based on this Notice of Motion and Motion, the Memorandum of Points and Authorities served and filed herewith, the Request for /// /// /// /// /// /// /// /// Case 3:16-cv-01696-W-MDD Document 14 Filed 11/16/16 Page 2 of 3 - 3 - NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K L IN E D IN S T P C 5 0 1 W E S T B R O A D W A Y , S U IT E 6 0 0 S A N D IE G O , C A L IF O R N IA 9 2 1 0 1 Judicial Notice and Incorporation by Reference and the Exhibits thereto, the papers and records on file herein, and on such oral and documentary evidence as may be presented and received at the hearing of the motion. DATED: November 16, 2016 KLINEDINST PC By: s/ Daniel S. Agle Daniel S. Agle Attorneys for Defendants THE MCMILLAN LAW FIRM, APC; SCOTT A. MCMILLAN and MICHELLE D. VOLK 16815993v1 Case 3:16-cv-01696-W-MDD Document 14 Filed 11/16/16 Page 3 of 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS COMPLAINT 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K L IN E D IN S T P C 5 0 1 W E S T B R O A D W A Y , S U IT E 6 0 0 S A N D IE G O , C A L IF O R N IA 9 2 1 0 1 Heather L. Rosing, Bar No. 183986 Daniel S. Agle, Bar No. 251090 KLINEDINST PC 501 West Broadway, Suite 600 San Diego, California 92101 (619) 239-8131/FAX (619) 238-8707 hrosing@klinedinstlaw.com dagle@klinedinstlaw.com Attorneys for Defendants THE MCMILLAN LAW FIRM, APC; SCOTT A. MCMILLAN and MICHELLE D. VOLK UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA L. LEE BRIGHTWELL, an individual, Plaintiff, v. THE MCMILLAN LAW FIRM, APC, a professional corporation; SCOTT A. MCMILLAN, an individual; MICHELLE D. VOLK, an individual; and DOES 1 through 25, inclusive, Defendants. Case No. 16-CV-1696 W MDD MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS COMPLAINT [No Oral Argument Pursuant to Civ. Local Rule 7.1(d)(1)] Date: January 9, 2017 Courtroom: 3C Judge: Thomas J. Whelan Magistrate Judge: Mitchell D. Dembin Complaint Filed: June 30, 2016 Trial Date: None set /// /// /// /// /// /// /// /// /// Case 3:16-cv-01696-W-MDD Document 14-1 Filed 11/16/16 Page 1 of 20 - i - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS COMPLAINT 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K L IN E D IN S T P C 5 0 1 W E S T B R O A D W A Y , S U IT E 6 0 0 S A N D IE G O , C A L IF O R N IA 9 2 1 0 1 TABLE OF CONTENTS Page I. INTRODUCTION ........................................................................................... 1 II. LEGAL STANDARD ..................................................................................... 2 III. RELEVANT FACTUAL BACKGROUND ................................................... 3 IV. ARGUMENT .................................................................................................. 6 A. Plaintiff cannot establish standing Under Article III for the claims against Michelle Volk because the Complaint does not allege facts showing that Michelle Volk did anything to injur Plaintiff .................................................................................................. 6 B. The first cause of action for breach of contract should be dismissed as to Scott McMillan and Michelle Volk because neither is a party to the contract ............................................................ 7 C. The fifth cause of action for declaratory relief should be dismissed as to Scott McMillan and Michelle Volk because neither is a party to the contract upon which the fee dispute arises ...................................................................................................... 7 D. The first, second, third, and fourth causes of action should be dismissed as to all Defendants because Plaintiff has not alleged facts to show any damage caused by the alleged misconduct .............. 8 1. Plaintiff did not pay the McMillan Firm for the allegedly inflated billing entries and, therefore, has not suffered any damage resulting from the bills ........................................... 9 2. Plaintiff’s allegations show that the alleged failure to follow instructions to accept the last best offer could not have caused Plaintiff any injury ............................................... 10 3. Plaintiff alleges no facts to show that her work preparing for trial at the McMillan Firm’s office caused an increase to the fees charged to her .......................................................... 11 E. Plaintiff’s second cause of action for fraud fails to meet the specificity requirements of Rule 9(b) ................................................. 12 F. Plaintiff has not adequately pleaded her third cause of action for professional negligence ....................................................................... 13 G. Plaintiff has not adequately pleaded her fourth cause of action for breach of fiduciary duty ................................................................ 15 V. CONCLUSION ............................................................................................. 15 Case 3:16-cv-01696-W-MDD Document 14-1 Filed 11/16/16 Page 2 of 20 - ii - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS COMPLAINT 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K L IN E D IN S T P C 5 0 1 W E S T B R O A D W A Y , S U IT E 6 0 0 S A N D IE G O , C A L IF O R N IA 9 2 1 0 1 TABLE OF AUTHORITIES Page(s) Cases Andrus v. Estrada, 39 Cal.App.4th 1030 (1995) ............................................................................ 7 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................................ 2 Bautista v. Los Angeles County, 216 F.3d 837 (9th Cir. 2000) ................................................................. 2, 8, 14 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ........................................................................................ 2 Brian Lichtenberg, LLC v. Alex & Chloe, Inc., 2014 U.S. Dist. LEXIS 18607 (C.D. Cal. Feb. 13, 2014) ............................... 2 Cafasso, ex rel. United States v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047 (9th Cir. 2011) ....................................................................... 12 Columbia Pictures Corp. v. DeToth, 26 Cal.2d 753 (1945) ....................................................................................... 8 Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152 (9th Cir. 2012) ..................................................................... 2, 5 DeLeon v. Wells Fargo Bank, N.A., 2011 U.S. Dist. LEXIS 8296 (N.D. Cal. Jan. 28, 2011) ............................... 11 Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S. Ct. 1627 (2005) ........................................................... 14 Ebeid ex rel. United States v. Lungwitz, 616 F.3d 993 (9th Cir. 2010) ......................................................................... 12 Firestone v. Wahl, 133 Cal.App.2d 501 (1955) ............................................................................. 7 Glen Holly Entertainment, Inc. v. Tektronix, Inc., 100 F.Supp.2d 1086 (C.D. Cal. 1999) ............................................................. 8 Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542 (9th Cir. 1990) ......................................................................... 2 Hall v. Kalfayan, 190 Cal.App.4th 927 (2010) ............................................................................ 8 Jacobson v. Balboa Arms Drive Trust, 2011 U.S. Dist. LEXIS 80281 (S.D. Cal. Apr. 4, 2011) ............................... 13 Case 3:16-cv-01696-W-MDD Document 14-1 Filed 11/16/16 Page 3 of 20 - iii - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS COMPLAINT 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K L IN E D IN S T P C 5 0 1 W E S T B R O A D W A Y , S U IT E 6 0 0 S A N D IE G O , C A L IF O R N IA 9 2 1 0 1 Jones v. Drain, 149 Cal.App.3d 484 (1983) ............................................................................. 7 Landberg v. Landberg, 24 Cal.App.3d 742 (1972) ......................................................................... 5, 11 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ........................................................................................ 6 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097 (9th Cir. 2008) ......................................................................... 2 Navarro v. Block, 250 F.3d 729 (9th Cir. 2001) ........................................................................... 2 Oasis West Realty, LLC v. Goldman, 51 Cal.4th 811 (2011) ...................................................................................... 8 Sheppard v. Banner Food Products, Inc., 78 Cal.App.2d 808 (1947) ............................................................................... 8 Silva v. Wells Fargo Bank, N.A., 2015 U.S. Dist. LEXIS 30667 (C.D. Cal. Mar. 11, 2015) ............................ 12 Sprewell v. Golden State Warriors, 266 F.3d 979 (9th Cir. 2001) ........................................................................... 3 Swartz v. KPMG LLP, 476 F.3d 756 (9th Cir. 2007) ......................................................................... 12 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) ................................................................................ 14, 15 Tribeca Cos., LLC v. First Am. Title Ins. Co., 239 Cal.App.4th 1088 (2015) .......................................................................... 9 Tri-Continent Internat. Corp. v. Paris Savings & Loan Assn., 12 Cal.App.4th 1354 (1993) ............................................................................ 7 United States v. Ritchie, 342 F.3d 903 (9th Cir. 2003) ........................................................................... 3 Walling v. Beverly Enters., 476 F.2d 393 (9th Cir.1973) .......................................................................... 12 Wells Fargo Bank v. Am. Nat'l Ins. Co., 2009 U.S. Dist. LEXIS 134120 (C.D. Cal. Aug. 12, 2009) ............................ 8 Case 3:16-cv-01696-W-MDD Document 14-1 Filed 11/16/16 Page 4 of 20 - 1 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS COMPLAINT 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K L IN E D IN S T P C 5 0 1 W E S T B R O A D W A Y , S U IT E 6 0 0 S A N D IE G O , C A L IF O R N IA 9 2 1 0 1 I. INTRODUCTION This lawsuit is nothing more than a fee dispute dressed up as something it is not-the facts alleged in the Complaint do not support the claims for breach of contract, fraud, professional negligence, or breach of fiduciary duty. Plaintiff only filed this lawsuit after The McMillan Law Firm, APC asserted a fee lien against the settlement in the underlying action. There are a number of independent bases for which the causes of action asserted by Plaintiff should be dismissed. First, Plaintiff cannot establish Article III standing for any of her claims against Defendant Michelle Volk because the allegations of the Complaint do not support a finding that Michelle Volk caused any injury to Plaintiff. The only allegation addressing Michelle Volk relates to a duplicate billing entry that was reversed once brought to the attention of the McMillan Firm. Second, the breach of contract and the declaratory relief causes of action should be dismissed as to Defendants Scott McMillan and Michelle Volk because they are not parties to the contract that forms the basis of those two claims. Third, the causes of action for breach of contract, fraud, professional negligence, and breach of fiduciary duty should also be dismissed as to all Defendants because the allegations of the Complaint show that none of the alleged misconduct has any causal connection to any damage claimed by Plaintiff. Fourth, Plaintiff has failed to adequately allege her fraud, professional negligence, and breach of fiduciary duty causes of action under the applicable pleading standards. Therefore, those causes of action should be dismissed as to all Defendants. Each of these bases presents independent grounds to dismiss some or all of the claims asserted by Plaintiff in this action. After applying the law to the facts alleged in this case, the only claim that should remain is the fifth cause of action /// Case 3:16-cv-01696-W-MDD Document 14-1 Filed 11/16/16 Page 5 of 20 - 2 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS COMPLAINT 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K L IN E D IN S T P C 5 0 1 W E S T B R O A D W A Y , S U IT E 6 0 0 S A N D IE G O , C A L IF O R N IA 9 2 1 0 1 for declaratory relief asserted against The McMillan Law Firm, APC. All of the other causes of action and the other two Defendants should be dismissed. II. LEGAL STANDARD Rule 12(b)(6) of the Federal Rules of Civil Procedure provides grounds for a court to dismiss a pleading when it fails to state a claim upon which relief can be granted. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). For every cause of action included in the Complaint, each element of the prima facie case must be supported by factual allegations. Bautista v. Los Angeles County, 216 F.3d 837, 840 (9th Cir. 2000). Dismissal is appropriate where the Complaint “lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). Although the Court must accept factual allegations in the Complaint as true, it need not accept labels, conclusions, or a mere recitation of elements. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Further, the Court is not required to accept as true a “legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 679. In considering this motion, the Court may look to judicially noticeable facts and certain documents under principles of incorporation by reference. See Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1160 (9th Cir. 2012) (under the incorporation by reference doctrine, courts may take into account, when analyzing a motion to dismiss, “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff’s] pleading”) (citation and internal quotation marks omitted). Further, this Court should ignore allegations of the Complaint that are in conflict with the facts set forth in documents that are exhibits to the Complaint or incorporated by reference. See Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 (9th Cir. 1990); Brian Lichtenberg, LLC v. Alex & Chloe, Inc., 2014 U.S. Dist. LEXIS 18607 , at *8 (C.D. Cal. Feb. 13, 2014) (“This court Case 3:16-cv-01696-W-MDD Document 14-1 Filed 11/16/16 Page 6 of 20 - 3 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS COMPLAINT 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K L IN E D IN S T P C 5 0 1 W E S T B R O A D W A Y , S U IT E 6 0 0 S A N D IE G O , C A L IF O R N IA 9 2 1 0 1 need not accept as true allegations that contradict exhibits attached to or referenced by a complaint.”) citing Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) and United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). III. RELEVANT FACTUAL BACKGROUND Plaintiff entered into a contract with The McMillan Law Firm, APC (“McMillan Firm”) to represent Plaintiff in the underlying litigation. (¶ 8; Ex. A to Complaint (Dkt. No. 1-2).) 1 The only parties to that contract are Plaintiff and the McMillan Firm. (Ex. A to Complaint, at p. 11.) Scott McMillan was the attorney primarily responsible for the engagement, who was assisted by his associate Michelle Volk. (Ex. A to Complaint, at p. 2.) At the time Plaintiff engaged the McMillan Firm, the underlying litigation had been pending for a year and a half and trial was set to commence in just over a month. (¶¶ 8, 10.) Shortly thereafter, trial was continued for four months-to March 2015. (¶ 10.) In order to prepare the case for trial on such a short timeline, the McMillan Firm required Plaintiff to be present in San Diego to help assist with trial preparation. (¶ 10.) Plaintiff claims this was a surprise to her, but that she travelled to San Diego and assisted with trial preparations for a few weeks. (¶ 10.) When Plaintiff left San Diego, the McMillan Firm sent her a substitution of attorney form because they needed her cooperation and assistance in preparing the case for trial. (¶ 11.) Though she had the opportunity to hire new counsel, Plaintiff did not sign the form. (¶ 11.) When Plaintiff had not returned to San Diego to assist with trial preparations, the McMillan Firm sent her another substitution of attorney form one month after the first form was sent-in January 2015. (¶ 12.) Again, Plaintiff did /// 1 Unless otherwise indicated, all references to “¶” refer to paragraphs of the Complaint filed in this action. Case 3:16-cv-01696-W-MDD Document 14-1 Filed 11/16/16 Page 7 of 20 - 4 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS COMPLAINT 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K L IN E D IN S T P C 5 0 1 W E S T B R O A D W A Y , S U IT E 6 0 0 S A N D IE G O , C A L IF O R N IA 9 2 1 0 1 not sign the form or hire a new attorney. (¶ 12.) At that time, trial was two months away. Because there was no courtroom available when the March 2015 trial date came, trial was again continued to October 2015. (¶ 13.) Despite Plaintiff’s absence, and over their objections related thereto, the McMillan Firm continued to prepare Plaintiff’s case for trial and billed Plaintiff for the work. (¶¶ 15-16.) Plaintiff ultimately returned to San Diego to help prepare her case for trial and claims to have spent a total of four months working in the office of the McMillan Firm. (¶ 16.) Plaintiff claims that she was told her work on the case would result in higher quality work and lower costs. (¶ 16.) While at the McMillan Firm’s office, Plaintiff claims she saw a number of inefficiencies due to staff turnover at the firm. (¶ 17.) Plaintiff claims that the staff turnover resulted in higher legal fees being charged to her. (¶ 17.) On May 31, 2015, Plaintiff received a bill from the McMillan Firm. (¶ 18.) Under the agreement with the McMillan Firm, Plaintiff was charged a discounted rate “conditioned upon prompt payment of outstanding bills” and Plaintiff agreed to “pay [the firm] for [its] fees as they are incurred.” (Ex. A to Complaint, at p. 3.) If a bill was not fully paid within 30 days, the hourly rates increased. (Ex. A to Complaint, at p.3.) In mid-June, the McMillan Firm sent Plaintiff another substitution of attorney form. (¶ 18.) Shortly thereafter, Scott McMillan told Plaintiff that he would be filing a motion to withdraw as counsel and that such a motion could affect Plaintiff’s position in the underlying litigation and the pending settlement discussions. (¶ 18.) On July 9, 2015-more than 30 days after the invoice was submitted and remained unpaid-Scott McMillan filed a motion to be relieved as counsel in the underlying litigation. (¶ 19.) While that motion was pending, settlement discussions continued. (¶ 20.) Case 3:16-cv-01696-W-MDD Document 14-1 Filed 11/16/16 Page 8 of 20 - 5 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS COMPLAINT 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K L IN E D IN S T P C 5 0 1 W E S T B R O A D W A Y , S U IT E 6 0 0 S A N D IE G O , C A L IF O R N IA 9 2 1 0 1 Though Plaintiff wanted to obtain as much money as possible in the underlying litigation, she advised the McMillan Firm that she would accept the last best offer previously made to her if the McMillan Firm could not get an increased offer prior to the hearing on the motion to withdraw. (¶ 20.) Under basic contract principles, once the McMillan firm countered the last best offer, the last best offer could not simply be accepted any longer. See Landberg v. Landberg, 24 Cal.App.3d 742, 750 (1972) (explaining that a counteroffer “constitutes a rejection terminating the offer”). On July 31, 2015, the McMillan Firm’s motion to withdraw was granted. (¶ 22.) Four days later, Plaintiff hired new counsel in the underlying litigation. (¶ 23.) On August 14, 2015, exactly ten days later, Plaintiff entered into a settlement of the underlying litigation for the exact amount of the prior last best offer. (¶ 23.) For reasons not detailed in the Complaint, it took Plaintiff and her counsel three months to execute a final settlement agreement. (¶ 23.) On August 28, 2015, two weeks after the settlement was reached, the McMillan Firm submitted a final invoice to Plaintiff setting forth the amount of its lien on the settlement proceeds-$151,922.59. (¶¶ 24 and 31; Ex. 2: Final Invoice.) 2 Plaintiff disputes some of the charges included on the May 31, 2015 bill, which she claims to be duplicative and unsubstantiated. (¶¶ 25-29.) Plaintiff has not paid the McMillan Firm for those disputed charges, and in fact, many of the charges Plaintiff complained of were reversed and credited on the August 28, 2015 final invoice. (Ex. 2: Final Invoice, at pp. 11-12.) Plaintiff claims that there has been a breach of contract, a fraud, a breach of fiduciary duty, and a breach of the standard of care based on: (1) the inflated bills; (2) the failure to follow /// 2 The August 28, 2015 final invoice is a document cited to and relied upon by Plaintiff in the Complaint to support her claims. Therefore, under principles of incorporation by reference, it is appropriate for consideration by this Court in deciding this motion to dismiss without converting the motion to dismiss into a motion for summary judgment. Davis, supra, 691 F.3d at 1160. Case 3:16-cv-01696-W-MDD Document 14-1 Filed 11/16/16 Page 9 of 20 - 6 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS COMPLAINT 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K L IN E D IN S T P C 5 0 1 W E S T B R O A D W A Y , S U IT E 6 0 0 S A N D IE G O , C A L IF O R N IA 9 2 1 0 1 instructions regarding settlement; and (3) inducing her to work onsite at the McMillan Firm’s office. (¶ 30.) Other than paragraphs 5 and 28, Michelle Volk is not specifically referenced anywhere in the Complaint. IV. ARGUMENT A. Plaintiff cannot establish standing Under Article III for the claims against Michelle Volk because the Complaint does not allege facts showing that Michelle Volk did anything to injur Plaintiff In order to demonstrate Article III standing to bring claims against Michelle Volk, Plaintiff must allege facts illustrating “a causal connection between the injury and the conduct complained of-the injury has to be fairly . . . trace[able] to the challenged action of the defendant . . . .” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Here, the Complaint is devoid of any allegations concerning what Michelle Volk did or did not do, other than the one allegation in ¶ 28 related to a duplicative time entry on the May 31, 2015 bill. With respect to that one duplicative time entry, as contemplated by the engagement agreement between Plaintiff and the McMillan Firm, once Plaintiff brought the duplicative time entry to the attention of the McMillan Firm, the entry was reversed. Specifically, the August 28, 2015 final invoice to Plaintiff explicitly reflects the reversal of that time entry. (Ex. 2, at p. 11 (reflecting credit of $40 for 2/24/15 time entry of Michelle Volk). Therefore, the time entry could not have caused any injury to Plaintiff. Due to the complete lack of any other allegations related to Michelle Volk, Plaintiff has failed to establish injury caused by Michelle Volk to meet the standing requirements of Article III and the entire action against Michelle Volk should be dismissed. /// /// Case 3:16-cv-01696-W-MDD Document 14-1 Filed 11/16/16 Page 10 of 20 - 7 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS COMPLAINT 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K L IN E D IN S T P C 5 0 1 W E S T B R O A D W A Y , S U IT E 6 0 0 S A N D IE G O , C A L IF O R N IA 9 2 1 0 1 B. The first cause of action for breach of contract should be dismissed as to Scott McMillan and Michelle Volk because neither is a party to the contract A person cannot be liable for breach of contract if he or she was not a party to the contract. See, e.g., Andrus v. Estrada, 39 Cal.App.4th 1030, 1042 & fn. 14, 1044 (1995); Tri-Continent Internat. Corp. v. Paris Savings & Loan Assn., 12 Cal.App.4th 1354, 1359 (1993); Jones v. Drain, 149 Cal.App.3d 484, 486-487 (1983). Here, the signature page of the contract clearly shows that the only parties to the contract are Plaintiff on the one hand and The McMillan Law Firm, APC on the other hand. (Ex. A to Complaint, at p. 11.) Though Scott McMillan was a signatory to the contract, the contract makes clear that his signature was “for the Firm” and not in his individual capacity. Under California law, where an individual signs as an agent for another (here the Firm), and the principal is explicitly referenced, the individual has no personal liability on the contract. See, e.g., Firestone v. Wahl, 133 Cal.App.2d 501, 505 (1955) (“To exclude the personal liability of an agent who signs a contract in his own name, the capacity in which he signs must appear upon the face of the instrument.”). Because neither Scott McMillan nor Michelle Volk are parties to the contract, the first cause of action for breach of contract must be dismissed as to them. C. The fifth cause of action for declaratory relief should be dismissed as to Scott McMillan and Michelle Volk because neither is a party to the contract upon which the fee dispute arises As detailed above, only the McMillan Firm is a party to the contract with Plaintiff. Any dispute as to the parties’ rights to the settlement funds under that contract-which is the sole basis for the fifth cause of action for declaratory relief-is solely between the McMillan Firm and Plaintiff. See Columbia Pictures Case 3:16-cv-01696-W-MDD Document 14-1 Filed 11/16/16 Page 11 of 20 - 8 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS COMPLAINT 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K L IN E D IN S T P C 5 0 1 W E S T B R O A D W A Y , S U IT E 6 0 0 S A N D IE G O , C A L IF O R N IA 9 2 1 0 1 Corp. v. DeToth, 26 Cal.2d 753, 760 (1945) (“A complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties under a contract and requests that these rights and duties be adjudged by the court.”) Declaratory relief claims by or against a non-party to a contract are improper and subject to dismissal. See, e.g., Sheppard v. Banner Food Products, Inc., 78 Cal.App.2d 808, 812-814 (1947) (sustaining demurrer without leave to amend for declaratory relief claim asserted by non-party to contract); Wells Fargo Bank v. Am. Nat'l Ins. Co., 2009 U.S. Dist. LEXIS 134120, *12-13 (C.D. Cal. Aug. 12, 2009)(dismissing declaratory relief claim brought against non-party to contract). Thus, the fifth cause of action for declaratory relief should be dismissed as to Scott McMillan and Michelle Volk. D. The first, second, third, and fourth causes of action should be dismissed as to all Defendants because Plaintiff has not alleged facts to show any damage caused by the alleged misconduct For each and every cause of action included in the Complaint, each element of the prima facie case must be supported by factual allegations. Bautista, supra, 216 F.3d at 840. And to state a claim under the first four causes of action, Plaintiff must allege facts showing that the alleged misconduct caused her some damage. See Oasis West Realty, LLC v. Goldman, 51 Cal.4th 811, 821 (2011) (elements of claim for breach of contract are: (1) the existence of a contract; (2) Plaintiff's performance of her contractual duties; (3) the McMillan Firm’s failure to perform its contractual duties; and (4) the damage resulting to Plaintiff); Glen Holly Entertainment, Inc. v. Tektronix, Inc., 100 F.Supp.2d 1086, 1093-94 (C.D. Cal. 1999) (elements of claim for fraud are: (1) misrepresentation(s) by Defendants; (2) knowledge of falsity by Defendants; (iii) intent to defraud by Defendants; (iv) justifiable reliance by Plaintiff; and (v) resulting damages); Hall v. Kalfayan, 190 Cal.App.4th 927, 933 (2010) (elements of a claim for legal malpractice are: (1) the Case 3:16-cv-01696-W-MDD Document 14-1 Filed 11/16/16 Page 12 of 20 - 9 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS COMPLAINT 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K L IN E D IN S T P C 5 0 1 W E S T B R O A D W A Y , S U IT E 6 0 0 S A N D IE G O , C A L IF O R N IA 9 2 1 0 1 duty of the attorney; (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); Tribeca Cos., LLC v. First Am. Title Ins. Co., 239 Cal.App.4th 1088, 1114 (2015) (elements of a claim for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach). Here, the alleged misconduct that forms the basis of the first four causes of action has no causal relationship to any damage suffered by Plaintiff. Specifically, Plaintiff claims that the breach of contract, fraud, professional negligence, and breach of fiduciary duty causes of action are based on three general acts: (1) the allegedly inflated bills; (2) the alleged failure to follow instructions regarding settlement; and (3) inducing Plaintiff to work onsite at the McMillan Firm’s office. (¶¶ 30, 36, 40-41, 49, 55.) But as discussed below, the allegations show that none of those alleged acts caused any damage to Plaintiff. 1. Plaintiff did not pay the McMillan Firm for the allegedly inflated billing entries and, therefore, has not suffered any damage resulting from the bills With respect to the allegedly inflated bills, Plaintiff did not pay any of the disputed charges-that is why her fifth cause of action asks this Court to make a judicial determination of her rights to the fees being held subject to the McMillan Firm’s fee lien. (¶¶ 24, 57-60.) Therefore, because Plaintiff has not yet paid the disputed charges, she could not have been damaged by the unpaid charges. Furthermore, as reflected on the August 28, 2015 final invoice, upon which Plaintiff’s claims in this action rely, the McMillan Firm provided Plaintiff with a credit of $5,020.00 for what Plaintiff claimed to be excessive and duplicative charges. (Ex. 2, at pp. 11 and 12.) And even if Plaintiff had paid the disputed charges-which she has not-the specific allegations of excessive and improper billing are demonstrably false. Case 3:16-cv-01696-W-MDD Document 14-1 Filed 11/16/16 Page 13 of 20 - 10 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS COMPLAINT 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K L IN E D IN S T P C 5 0 1 W E S T B R O A D W A Y , S U IT E 6 0 0 S A N D IE G O , C A L IF O R N IA 9 2 1 0 1 First, at ¶ 25, Plaintiff claims that Scott McMillan spent two hours working on a brief related to the motion to withdraw on July 24, 2015, but that the brief was actually filed the day before. However, the docket for the underlying case, which is subject to judicial notice, illustrates that the reply brief on the motion to withdraw was filed on July 24, 2015, the same day that the billing entry shows Scott McMillan was finalizing the brief. (Request for Judicial Notice, No. 1; Ex. 1: Register of Actions.) Therefore, the fact that Scott McMillan worked on the reply brief the day it was filed cannot support Plaintiff’s claims. Second, at ¶ 26, Plaintiff claims that Scott McMillan double billed for calling two different people. As the billing entries reflect, Scott McMillan called Plaintiff and then called Marion Miller about his efforts to get in contact with Plaintiff. (¶ 26.) Therefore, billing separately for the two separate calls cannot support Plaintiff’s claims. Third, at ¶ 28, Plaintiff complains that the bill included a duplicative charge by Michelle Volk. However, as discussed above, Plaintiff was credited for the duplicative charge once it was brought to the attention of the McMillan Firm. (Ex. 2, at p. 11.) Therefore, that charge cannot support Plaintiff’s claims. But even if the time entries were inflated, Plaintiff never paid the McMillan Firm for the disputed charges so those time entries could not have caused any damage to Plaintiff and they cannot support Plaintiff’s claims. 2. Plaintiff’s allegations show that the alleged failure to follow instructions to accept the last best offer could not have caused Plaintiff any injury Plaintiff concedes in her Complaint that she was willing to settle the underlying litigation for the last best offer that had been previously conveyed to her-$435,000. (¶ 20.) And Plaintiff complains that Defendants did not accept that last best offer prior to withdrawing. (¶¶ 20-21.) However, Plaintiff also clearly alleges that she directed Defendants to try to get more (i.e. to make a counteroffer), Case 3:16-cv-01696-W-MDD Document 14-1 Filed 11/16/16 Page 14 of 20 - 11 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS COMPLAINT 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K L IN E D IN S T P C 5 0 1 W E S T B R O A D W A Y , S U IT E 6 0 0 S A N D IE G O , C A L IF O R N IA 9 2 1 0 1 which upon countering, the last best offer she previously received was no longer on the table. (¶ 20) Landberg, supra, 24 Cal.App.3d at 750 (explaining that a counteroffer “constitutes a rejection terminating the offer”). Because the counteroffer made at the direction of Plaintiff worked to reject the last best offer, Defendants could not simply accept the last best offer prior to withdrawal and, therefore, the alleged failure of Defendants to accept that non-existent offer could not have caused Plaintiff any injury. Notably, after Plaintiff hired new counsel, it still took 10 days for Plaintiff’s underlying adversary to agree to settle for the last best offer after it had been rejected by the prior counter-offer. (¶ 23.) Therefore the allege failure to accept the last best offer could not have caused any damage and, therefore, cannot support Plaintiff’s claims. 3. Plaintiff alleges no facts to show that her work preparing for trial at the McMillan Firm’s office caused an increase to the fees charged to her Plaintiff alleges that she worked on preparing her case for trial at the McMillan Firm’s office for a total of four months. (¶ 16.) Logic and reason both dictate that where Plaintiff worked on trial preparation for four months, the McMillan Firm’s legal team did not have to do the work that Plaintiff herself performed. Conversely, had Plaintiff not performed that work, someone on the McMillan Firm’s legal team would have had to perform that work. Thus Plaintiff’s presence in California and the work that she performed on the case could not have caused an increase in the fees she was charged. It is simply not plausible that four months of Plaintiff’s hard work would have caused the fees charged by the McMillan Firm to be higher, and there are no facts showing how Plaintiffs’ work caused the fees to increase. See, e.g., DeLeon v. Wells Fargo Bank, N.A., 2011 U.S. Dist. LEXIS 8296 (N.D. Cal. Jan. 28, 2011) (explaining that dismissal proper where complaint does not plausibly allege causation of claimed damage). Furthermore, as reflected above, Plaintiff has not Case 3:16-cv-01696-W-MDD Document 14-1 Filed 11/16/16 Page 15 of 20 - 12 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS COMPLAINT 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K L IN E D IN S T P C 5 0 1 W E S T B R O A D W A Y , S U IT E 6 0 0 S A N D IE G O , C A L IF O R N IA 9 2 1 0 1 paid the fees she disputes as being inflated. And if Plaintiff did not want to be in California to work on her case, she was free to tell Defendants that she would not come and that they needed to prepare the case without her. Based on the foregoing, the three alleged acts of misconduct could not have caused damage to Plaintiff and, therefore, the first, second, third, and fourth causes of action should be dismissed as to all Defendants. E. Plaintiff’s second cause of action for fraud fails to meet the specificity requirements of Rule 9(b) Federal Rule of Civil Procedure 9(b) requires that the circumstances constituting a claim for fraud be pled with particularity. A pleading is sufficient under Rule 9(b) if it “[identifies] the circumstances constituting fraud so that the defendant can prepare an adequate answer from the allegations.” Walling v. Beverly Enters., 476 F.2d 393, 397 (9th Cir.1973). “To satisfy Rule 9(b), a pleading must identify ‘the who, what, when, where, and how of the misconduct charged,’ as well as ‘what is false or misleading about [the purportedly fraudulent] statement, and why it is false.’” Cafasso, ex rel. United States v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011) (quoting Ebeid ex rel. United States v. Lungwitz, 616 F.3d 993, 998 (9th Cir. 2010)); see also Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (Rule 9(b) “requires . . . an account of the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations”)(quotation omitted). Here, almost all of the “representations” are nothing more than generalized statements attributed to Defendants generally. And the Complaint is void of any specifics on the who, what, when, where, and how of the misconduct charged. Under these circumstances, dismissal is proper. See, e.g., Silva v. Wells Fargo Bank, N.A., 2015 U.S. Dist. LEXIS 30667 (C.D. Cal. Mar. 11, 2015) (“Plaintiff refers to Defendants generally and does not allege with any specificity what misleading statements any particular Defendant made, or when a Defendant may Case 3:16-cv-01696-W-MDD Document 14-1 Filed 11/16/16 Page 16 of 20 - 13 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS COMPLAINT 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K L IN E D IN S T P C 5 0 1 W E S T B R O A D W A Y , S U IT E 6 0 0 S A N D IE G O , C A L IF O R N IA 9 2 1 0 1 have made them.”); Jacobson v. Balboa Arms Drive Trust, 2011 U.S. Dist. LEXIS 80281 (S.D. Cal. Apr. 4, 2011) (“Plaintiffs allege generally that Defendants made representations to Plaintiffs . . . however, these statements do not identify when and where these representations were allegedly made to Plaintiffs, and by whom. Such vague and generalized accusations clearly do not comply with the requirements of Rule 9(b).”). To the extent the fraud claim is based upon the allegedly inflated billing entries, Plaintiff admits that she challenged those billing entries and did not pay them. (¶¶ 24, 57-60.) Therefore, Plaintiff has not and cannot allege detrimental reliance as to the alleged inflated billing entries. Other than the duplicate time entry that was reversed on the final invoice, there are absolutely no specific allegations that Michelle Volk made any representations, much less false representations. The only alleged fraudulent representation attributed to Scott McMillan (outside of the time entries) is that he told Plaintiff that she needed to move to San Diego to work on trial preparation, and that her efforts would result in higher quality legal work and lower costs. (¶ 40.) Plaintiff does not allege the when, where, or how of those statements, nor does she allege why those statements were false. As noted above, Plaintiff’s hard work on the case certainly resulted in reduced costs to her. Based on the foregoing, the second cause of action for fraud should be dismissed as to all Defendants. F. Plaintiff has not adequately pleaded her third cause of action for professional negligence As noted above, Plaintiff must allege facts to support a prima facie showing on her claim of malpractice. To comply with Rule 8(a)(2), Plaintiff “must plead a short and plain statement of the elements of . . . her claim, identifying the transactions or occurrence giving rise to the claim and the elements of the prima Case 3:16-cv-01696-W-MDD Document 14-1 Filed 11/16/16 Page 17 of 20 - 14 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS COMPLAINT 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K L IN E D IN S T P C 5 0 1 W E S T B R O A D W A Y , S U IT E 6 0 0 S A N D IE G O , C A L IF O R N IA 9 2 1 0 1 facie case.” Bautista, supra, 216 F.3d at 840. Although Rule 8 “encourages brevity, the complaint must say enough to give the defendant ‘fair notice of what the plaintiff’s claim is and the grounds upon which it rests.’“ Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 318 (2007) (quoting Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 346, 125 S. Ct. 1627 (2005)). But the malpractice claim contains nothing more than a conclusory, non-factual statement that Defendants generally failed to exercise reasonable care in handling the underlying action. (¶ 48.) There are no allegations whatsoever concerning what Michelle Volk did or did not do that was below the standard of care-the Complaint is literally silent as to her. Therefore, the Complaint is woefully deficient of the Rule 8 requirements as to Michelle Volk and should therefore be dismissed as to her. As to the other Defendants, Plaintiff generally claims that the breach of the standard of care relates to the underlying settlement and the allegedly inflated bills. However, there are no allegations of any facts concerning how Defendants’ conduct could ever have caused a smaller settlement than Plaintiff would have otherwise received. In fact, Plaintiff admits that she advised Defendants that she would accept the last best offer-which is the ultimate settlement that she received after the withdrawal. (¶ 20.) And where, as here, the trial court approved the McMillan Firm’s withdrawal (¶ 22), the fact that Plaintiff incurred fees in hiring replacement counsel is not a real item of damage-had the McMillan Firm stayed in the case, Plaintiff would have incurred fees in finalizing the settlement agreement regardless of whether the fees were paid to the McMillan Firm or to successor counsel. With respect to the bills, as noted above, Plaintiff did not pay the allegedly inflated charges. /// /// Case 3:16-cv-01696-W-MDD Document 14-1 Filed 11/16/16 Page 18 of 20 - 15 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS COMPLAINT 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K L IN E D IN S T P C 5 0 1 W E S T B R O A D W A Y , S U IT E 6 0 0 S A N D IE G O , C A L IF O R N IA 9 2 1 0 1 Therefore, Plaintiff has failed to allege facts sufficient to state a claim upon which relief can be granted and, the third cause of action for professional negligence should be dismissed as to all Defendants. G. Plaintiff has not adequately pleaded her fourth cause of action for breach of fiduciary duty Plaintiff’s breach of fiduciary duty claim is also pleaded in a conclusory manner and it fails to provide Defendants with “fair notice of what [her] claim is and the grounds upon which it rests.” See Tellabs, supra, 551 U.S. at 318 (2007). The Complaint merely alleges that Defendants had a duty to put Plaintiff’s interests above their own, and that “Defendants did not take reasonable steps to protect the interests of [Plaintiff] . . . and in fact placed their own interests and financial gain ahead of [Plaintiff’s] best interests.” (¶ 53.) The breach of duty cannot arise from the invoices because Plaintiff did not pay the disputed fees- they are still sitting in her attorney’s client trust account. (¶ 31.) Furthermore, the breach of duty cannot be based on the motion to withdraw which was granted by the trial court (¶ 22)-especially where the engagement agreement allowed the McMillan Firm to move to withdraw for failure to honor the fee agreement. (Ex. A to Complaint, at p. 9.) Based on the lack of allegations sufficient to make a prima facie showing on this claim, the fourth cause of action for breach of fiduciary duty should be dismissed. V. CONCLUSION Based upon the foregoing, Defendants respectfully request that the Court dismiss the first four causes of action for breach of contract, fraud, professional negligence, and breach of fiduciary duty as to all Defendants. Defendants also request that the Court dismiss the fifth cause of action for declaratory relief as to Scott McMillan and Michelle Volk. /// Case 3:16-cv-01696-W-MDD Document 14-1 Filed 11/16/16 Page 19 of 20 - 16 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS COMPLAINT 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K L IN E D IN S T P C 5 0 1 W E S T B R O A D W A Y , S U IT E 6 0 0 S A N D IE G O , C A L IF O R N IA 9 2 1 0 1 This case is nothing more than a fee dispute where Plaintiff has made a futile attempt to assert additional claims that are unsupported by the facts alleged in the Complaint. Therefore, all of the causes of action, other than the declaratory relief claim against The McMillan Firm, should be dismissed. DATED: November 16, 2016 KLINEDINST PC By: s/ Daniel S. Agle Daniel S. Agle Attorneys for Defendants THE MCMILLAN LAW FIRM, APC; SCOTT A. MCMILLAN and MICHELLE D. VOLK 16818042v1 Case 3:16-cv-01696-W-MDD Document 14-1 Filed 11/16/16 Page 20 of 20 - 1 - REQUEST FOR JUDICIAL NOTICE AND INCORPORATION BY REFERENCE IN SUPPORT OF MOTION TO DISMISS COMPLAINT 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K L IN E D IN S T P C 5 0 1 W E S T B R O A D W A Y , S U IT E 6 0 0 S A N D IE G O , C A L IF O R N IA 9 2 1 0 1 Heather L. Rosing, Bar No. 183986 Daniel S. Agle, Bar No. 251090 KLINEDINST PC 501 West Broadway, Suite 600 San Diego, California 92101 (619) 239-8131/FAX (619) 238-8707 hrosing@klinedinstlaw.com dagle@klinedinstlaw.com Attorneys for Defendants THE MCMILLAN LAW FIRM, APC; SCOTT A. MCMILLAN and MICHELLE D. VOLK UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA L. LEE BRIGHTWELL, an individual, Plaintiff, v. THE MCMILLAN LAW FIRM, APC, a professional corporation; SCOTT A. MCMILLAN, an individual; MICHELLE D. VOLK, an individual; and DOES 1 through 25, inclusive, Defendants. Case No. 16-CV-1696 W MDD REQUEST FOR JUDICIAL NOTICE AND INCORPORATION BY REFERENCE IN SUPPORT OF MOTION TO DISMISS COMPLAINT [No Oral Argument Pursuant to Civ. Local Rule 7.1(d)(1) Date: January 9, 2017 Courtroom: 3C Judge: Thomas J. Whelan Magistrate Judge: Mitchell D. Dembin Complaint Filed: June 30, 2016 Trial Date: None set Defendants THE MCMILLAN LAW FIRM, APC; SCOTT A. MCMILLAN and MICHELLE D. VOLK (“Defendants”) hereby request judicial notice, pursuant to Federal Rule of Evidence 201, of the following facts and document in support of their Motion to Dismiss Complaint: 1. As reflected on the Register of Actions for Brightwell v. RF Logistics LLC, et al., San Diego Superior Court Case No. 37-2013-00046163-CU-BC-CTL, the McMillan Firm filed its reply brief in support of the motion to be relieved as counsel on July 24, 2015. A true and correct copy of the Register of Actions /// Case 3:16-cv-01696-W-MDD Document 14-2 Filed 11/16/16 Page 1 of 27 - 2 - REQUEST FOR JUDICIAL NOTICE AND INCORPORATION BY REFERENCE IN SUPPORT OF MOTION TO DISMISS COMPLAINT 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K L IN E D IN S T P C 5 0 1 W E S T B R O A D W A Y , S U IT E 6 0 0 S A N D IE G O , C A L IF O R N IA 9 2 1 0 1 which is publicly available on the Superior Court’s website is attached hereto as Exhibit 1. Judicial notice is proper here because the facts and document for which the request is made are “capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.” Fed. R. Evid. 201(b)(2); Lee v. City of Los Angeles, 250 F.3d 688, 689-690 (9th Cir. 2001). Defendants also hereby request that this Court consider the following Exhibit under principles of incorporation by reference: 2. A true and correct copy of the final invoice from the McMillan Firm to Plaintiff dated August 28, 2015 is attached hereto as Exhibit 2. It is appropriate for this Court to consider Exhibit 2 when deciding this Motion to Dismiss because the Complaint specifically references and relies upon the August 28, 2015 invoice which sets forth the amount of the McMillan Firm’s attorney fee lien. Specifically, paragraph 24 of the Complaint alleges that Defendants sent the final invoice and specifically references the content of the final invoice. Furthermore, the declaratory relief cause of action is based entirely on the dispute between the McMillan Firm and Plaintiff concerning the attorney fee lien and those two parties’ entitlement to the settlement proceeds being held in trust. (Complaint, ¶ 31.) See Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1160 (9th Cir. 2012) (under the incorporation by reference doctrine, courts may take into account, when analyzing a motion to dismiss, “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff’s] pleading”) (citation and internal quotation marks omitted). For the foregoing reasons, Defendants respectfully request that this Court consider Exhibits 1 and 2 when deciding Defendants’ Motion to Dismiss Complaint. /// Case 3:16-cv-01696-W-MDD Document 14-2 Filed 11/16/16 Page 2 of 27 - 3 - REQUEST FOR JUDICIAL NOTICE AND INCORPORATION BY REFERENCE IN SUPPORT OF MOTION TO DISMISS COMPLAINT 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K L IN E D IN S T P C 5 0 1 W E S T B R O A D W A Y , S U IT E 6 0 0 S A N D IE G O , C A L IF O R N IA 9 2 1 0 1 APPENDIX OF EXHIBITS Exh. No. Exhibit Description Page No. 1 Register of Actions Docket for Superior Court Case No. 37- 2013-00046163 1-11 2 Invoice from The McMillan Law Firm dated August 28, 2015 12-24 DATED: November 16, 2016 KLINEDINST PC By: s/ Daniel S. Agle Daniel S. Agle Attorneys for Defendants THE MCMILLAN LAW FIRM, APC; SCOTT A. MCMILLAN and MICHELLE D. VOLK 16818858v1 Case 3:16-cv-01696-W-MDD Document 14-2 Filed 11/16/16 Page 3 of 27 EXHIBIT 1 Exhibit 1 Page 1 Case 3:16-cv-01696-W-MDD Document 14-2 Filed 11/16/16 Page 4 of 27 SUPERIOR COURT OF CALIFORNIA County of SAN DIEGO Register of Actions Notice Case Number: Case Title: Case Status: Case Category: Case Type: 37-2013-00046163-CU-BC-CTL Brightwell vs. RF Logistics LLC [IMAGED] Dismissed Civil - Unlimited Breach of Contract/Warranty Filing Date: Case Age: Location: Judicial Officer: Department: 04/25/2013 879 days Central Timothy Taylor C-72 Future Events Date Time No future events Department Event Participants Name Brightwell, L Lee; AKA : Brightwell, L Lee O'Donnell, Brian RF Logistics LLC Representation Role Representation Plaintiff, Cross - HEINLEIN, JOSHUA M; Leventhal, Joseph S Defendant Defendant, Cross - Berger, Harvey C; Brown, Jay D; Complainant FRIEDENTHAL, DANIEL R; Heffeman, Kevin N Defendant, Cross - Berger, Harvey C; Brown, Jay D; Complainant FRIEDENTHAL, DANIEL R; Heffernan, Kevin N NaMe BERGER, HARVEY C BROWN, JAY D FRIEDENTHAL, DANIEL R HEFFERNAN, KEVIN N HEINLEIN, JOSHUA M LEVENTHAL, JOSEPH S Address POPE BERGER WILLIAMS & REYNOLDS LLP 401 B Street 2000 San Diego CA 92101 155 N Lake 430 Pasadena CA 911011848 FRIEDENTHAL HEFFERNAN & KLEIN LLP 155 North Lake Avenue 430 Pasadena CA 91101 155 N Lake Avenue 430 Pasedena CA 91101 DINSMORE & SHOHL LLP 655 W Broadway Suite 840 San Diego CA 92101 DINSMORE & SHOHL LLP 655 W Broadway 840 San Diego CA 92101 Phone Number (619) 234-1222 (626) 628-2800 (619) 356-3518 (619) 356-3518 ROA# Entry Date Short/Long Entry Filed By 1 04/25/2013 Complaint filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) Refers to: RF Logistics LLC; O'Donnell, Brian 2 04/25/2013 Original Summons filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) Refers to: RF Logistics LLC; O'Donnell, Brian 3 04/25/2013 Civil Case Cover Sheet filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) Refers to: RF Logistics LLC; O'Donnell, Brian 4 04/26/2013 Summons issued. 5 04/25/2013 Case assigned to Judicial Officer Prager, Ronald. 6 04/26/2013 Civil Case Management Conference scheduled for 10/11/2013 at 01:00:00 PM at Central in C-71 Ronald S. Prager. 7 04/26/2013 Case initiation form printed. 8 05/02/2013 Proof of Service of 30-day Summons & Complaint - Brightwell, L Lee (Plaintiff) Personal filed by Brightwell, L Lee. Refers to: RF Logistics LLC 9 05/02/2013 Proof of Service of 30-day Summons & Complaint - Brightwell, L Lee (Plaintiff) Personal filed by Brightwell, L Lee. Refers to: O'Donnell, Brian 10 05/02/2013 Certificate of Service filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) Date Printed: November 04, 2016 (2:50PM PDT) Page 1 of 10 Exhibit 1 Page 2 Case 3:16-cv-01696-W-MDD Document 14-2 Filed 11/16/16 Page 5 of 27 San Diego Supenor Court case: 37-2013-00046163-CU-BC-CTL "FiUe: Brightwell vs. RF Logistics LLC [IMAGED] 11 06/12/2013 Demurrer / Motion to Strike scheduled for 08/30/2013 at 10:00:00 AM at Central in C-71 Ronald S. Prager. 12 06/13/2013 Motion to Strike filed by O'Donnell, Brian; RF Logistics LLC. O'Donnell, Brian (Defendant); RF Logistics LLC (Defendant) 13 07/01/2013 The Civil Case Management Conference was rescheduled to 10/09/2013 at 01:00:00 PM in C-71 before Ronald S. Prager at Central. 14 07/01/2013 Civil Case Management Conference scheduled for 10/09/2013 at 01:00:00 PM at Central in C-71 Ronald S. Prager. 15 08/19/2013 Opposition to Noticed Motion and Supporting Declarations Brightwell, L Lee (Plaintiff) (to Motion to Strike) filed by Brightwell, L Lee. 16 08/23/2013 Reply to Opposition - Other (reply brief in support of Motion to Strike portions of the complaint) filed by RF Logistics RF Logistics LLC (Defendant); O'Donnell, Brian (Defendant) LLC; O'Donnell, Brian. 17 08/29/2013 Tentative Ruling for Demurrer / Motion to Strike published. 18 08/30/2013 Minutes finalized for Demurrer / Motion to Strike heard 08/30/2013 10:00:00 AM. 19 08/30/2013 Miscellaneous Minute Order Finalized. 20 08/30/2013 Clerks Certificate of Service By Mail (MINUTE ORDER OF Superior Court of San Diego 8/30/13) filed by Superior Court of San Diego. (Interested Party) 21 09/13/2013 Answer filed by RF Logistics LLC; O'Donnell, Brian. RF Logistics LLC (Defendant); Refers to: Brightwell, L O'Donnell, Brian (Defendant) 22 09/13/2013 Cross-Complaint filed by RF Logistics LLC; O'Donnell, Brian. RF Logistics LLC (Cross - Complainant); O'Donnell, Brian Refers to: Brightwell, L (Cross - Complainant) 23 09/24/2013 Case Management Statement filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 24 09/24/2013 Notice of Jury Fee Deposit filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 25 09/24/2013 Request for Dismissal without Prejudice - Cause of Actions Brightwell, L Lee (Plaintiff) (Sixteenth and Seventeenth Cause of Action as to all Defendants) filed by Brightwell, L Lee. 26 09/24/2013 Notice of Jury Fee Deposit filed by RF Logistics LLC; RF Logistics LLC (Cross - O'Donnell, Brian. Complainant); O'Donnell, Brian (Cross - Complainant) 27 09/24/2013 Case Management Statement filed by RF Logistics LLC. RF Logistics LLC (Defendant) 30 10/09/2013 Civil Jury Trial scheduled for 04/25/2014 at 08:45AM before Judge Ronald S. Prager. 31 10/09/2013 Trial Readiness Conference (Civil) scheduled for 04/11/2014 at 09:00AM before Judge Ronald S. Prager. 32 10/09/2013 Minutes finalized for Civil Case Management Conference heard 10/09/2013 01:00:00 PM. 33 10/09/2013 Notice of Hearing SD generated. 34 10/09/2013 Notice of Hearing SD generated. 35 10/18/2013 Answer filed by Brightwell, L Lee. Brightwell, L Lee (Cross - Defendant) 36 10/18/2013 Proof of Service filed by Brightwell, L Lee. Brightwell, L Lee (Cross - Defendant) 37 10/21/2013 Association of Attorney filed by RF Logistics LLC; RF Logistics LLC (Defendant); O'Donnell, Brian. O'Donnell, Brian (Cross - Complainant) 38 01/14/2014 Ex Parte scheduled for 01/29/2014 at 08:15:00 AM at Central in C-71 Ronald S. Prager. 39 01/24/2014 Ex Parte scheduled for 01/28/2014 at 08:15:00 AM at Central in C-71 Ronald S. Prager. 40 01/24/2014 Ex Parte scheduled for 01/28/2014 at 08:15:00 AM at Central in C-71 Ronald S. Prager was vacated. 41 01/28/2014 Ex Parte scheduled for 01/29/2014 at 08:15:00 AM at Central in C-71 Ronald S. Prager was vacated. Date Printed: November 04, 2016 (2:50PM PDT) Page 2 of 10 Exhibit 1 Page 3 Case 3:16-cv-01696-W-MDD Document 14-2 Filed 11/16/16 Page 6 of 27 o Superior Court Case: 37-2013-00046163-CU-BC-CTL Brightwell vs. RF Logistics LLC [IMAGED] 43 44 01/29/2014 01/29/2014 Civil Case Management Conference scheduled for 02/21/2014 at 01:00PM before Judge Ronald S. Prager. Miscellaneous Minute Order Finalized. 45 01/24/2014 Substitution of Attorney filed by Brightwell, L Lee. Brightwell, L Lee (Cross - Defendant) 46 02/10/2014 Stipulation - Other - Fee Due (Stip & Order re Protective Brightwell, L Lee (Plaintiff); Order) filed by Brightwell, L Lee; O'Donnell, Brian. O'Donnell, Brian (Defendant) 47 02/07/2014 Case Management Statement filed by RF Logistics LLC; RF Logistics LLC (Defendant); O'Donnell, Brian. O'Donnell, Brian (Defendant) 48 02/10/2014 Case Management Statement filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 49 02/11/2014 Proof of Service by Mail filed by RF Logistics LLC; RF Logistics LLC (Defendant); O'Donnell, Brian. O'Donnell, Brian (Defendant) 52 02/21/2014 Civil Jury Trial scheduled for 08/15/2014 at 08:45AM before Judge Ronald S. Prager. 53 02/21/2014 Trial Readiness Conference (Civil) scheduled for 08/01/2014 at 09:00AM before Judge Ronald S. Prager. 54 02/21/2014 Minutes finalized for Civil Case Management Conference heard 02/21/2014 01:00:00 PM. 55 02/21/2014 Notice of Hearing SD generated. 56 02/21/2014 Notice of Hearing SD generated. 57 02/28/2014 Amended Complaint filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) Refers to: RF Logistics LLC; O'Donnell, Brian 58 03/24/2014 Ex Parte scheduled for 04/01/2014 at 08:15:00 AM at Central in C-71 Ronald S. Prager. 59 03/28/2014 Ex Parte Application - Other and Supporting Documents filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 60 03/28/2014 Notice of Lodgment filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 61 04/01/2014 Minutes finalized for Ex Parte heard 04/01/2014 08:15:00 AM. 62 04/03/2014 Civil Jury Trial scheduled for 04/25/2014 at 08:45:00 AM at Central in C-71 Ronald S. Prager was vacated. 63 04/03/2014 Trial Readiness Conference (Civil) scheduled for 04/11/2014 at 09:00:00 AM at Central in C-71 Ronald S. Prager was vacated. 64 04/15/2014 Answer filed by RF Logistics LLC; O'Donnell, Brian. RF Logistics LLC (Defendant); Refers to: Brightwell, L O'Donnell, Brian (Defendant) 65 05/01/2014 Ex Parte scheduled for 05/06/2014 at 08:15:00 AM at Central in C-71 Ronald S. Prager. 66 05/05/2014 Ex Parte scheduled for 05/06/2014 at 08:15:00 AM at Central in C-71 Ronald S. Prager was vacated. 67 06/04/2014 Ex Parte scheduled for 06/11/2014 at 08:15:00 AM at Central in C-71 Ronald S. Prager. 68 06/09/2014 Ex Parte Application - Other and Supporting Documents filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 73 06/11/2014 Trial Readiness Conference (Civil) continued pursuant to party's motion to 10/24/2014 at 09:00AM before Judge Ronald S. Prager. 74 06/11/2014 Civil Jury Trial continued pursuant to party's motion to 11/07/2014 at 08:45AM before Judge Ronald S. Prager. 75 06/11/2014 Minutes finalized for Ex Parte heard 06/11/2014 08:15:00 AM. 76 06/11/2014 Notice of Rescheduled Hearing SD generated. 77 06/11/2014 Notice of Rescheduled Hearing SD generated. 78 07/15/2014 Notice - Other (of unavailabity of counsel from 7/17/14 through 7/28/14) filed by RF Logistics LLC; O'Donnell, Brian. RF Logistics LLC (Defendant); O'Donnell, Brian (Defendant) 79 08/21/2014 Ex Parte scheduled for 08/25/2014 at 08:15:00 AM at Central in C-71 Ronald S. Prager. Date Printed: November 04, 2016 (2:50PM PDT) Page 3 of 10 Exhibit 1 Page 4 Case 3:16-cv-01696-W-MDD Document 14-2 Filed 11/16/16 Page 7 of 27 San Diew Superior Court Case: 37-2013-00046163-CU-BC-CTL : Brightwell vs. RF Logistics LLC [IMAGED] 80 08/22/2014 Ex Parte scheduled for 08/25/2014 at 08:15:00 AM at Central in C-71 Ronald S. Prager. 81 08/22/2014 Ex Parte Application - Other and Supporting Documents filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 82 08/22/2014 Ex Parte Application - Other and Supporting Documents filed by RF Logistics LLC; O'Donnell, Brian. RF Logistics LLC (Defendant); O'Donnell, Brian (Defendant) 87 08/25/2014 Trial Readiness Conference (Civil) continued pursuant to party's motion to 11/14/2014 at 09:00AM before Judge Ronald S. Prager. 88 08/25/2014 Civil Jury Trial continued pursuant to party's motion to 11/21/2014 at 08:45AM before Judge Ronald S. Prager. 89 08/25/2014 Minutes finalized for Multiple Events heard 08/25/2014 08:15:00 AM. 90 08/25/2014 Notice of Rescheduled Hearing SD generated. 91 08/25/2014 Notice of Rescheduled Hearing SD generated. 92 09/25/2014 Notice of Jury Fee Deposit submitted by RF Logistics LLC rejected on 09/25/2014. RF Logistics LLC (Defendant) 93 10/02/2014 Substitution of Attorney filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 94 10/06/2014 Ex Parte scheduled for 10/22/2014 at 08:15:00 AM at Central in C-71 Ronald S. Prager. 95 10/13/2014 Notice of Jury Fee Deposit filed by RF Logistics LLC; RF Logistics LLC (Defendant); O'Donnell, Brian. O'Donnell, Brian (Defendant) 96 10/21/2014 Ex Parte Application - Other and Supporting Documents (To Brightwell, L Lee (Plaintiff) Continue Trial for hearing on a Motion for Terminating Sanctions for Failure to Comply with a Discovery Order and to Reopen the Deposition of Brian O'Donnell.) filed by Brightwell, L Lee. 97 10/21/2014 Declaration - Other (of Scott A McMillan in Support of Ex Brightwell, L Lee (Plaintiff) Parte) filed by Brightwell, L Lee. 98 10/21/2014 Declaration - Other (of L Lee Brightwell in Support of Ex Brightwell, L Lee (Plaintiff) Parte Application) filed by Brightwell, L Lee. 99 10/21/2014 Declaration - Other (of Nikolas T Djordjevski in Support of Brightwell, L Lee (Plaintiff) Ex Parte) filed by Brightwell, L Lee. 100 10/21/2014 Declaration - Other (Declaration of Nikolas T Djordjevski) filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 101 10/22/2014 Appointment of Official Reporter Pro Tempore (Dana Saruk, CSR#10653, 619-884-6411) filed by The Superior Court of San Diego. 106 10/22/2014 Trial Readiness Conference (Civil) continued pursuant to party's motion to 03/13/2015 at 09:00AM before Judge Ronald S. Prager. 107 10/22/2014 Civil Jury Trial continued pursuant to party's motion to 03/27/2015 at 08:45AM before Judge Ronald S. Prager. 108 10/22/2014 Minutes finalized for Ex Parte heard 10/22/2014 08:15:00 AM. 109 10/22/2014 Notice of Rescheduled Hearing SD generated. 110 10/22/2014 Notice of Rescheduled Hearing SD generated. 111 10/24/2014 Notice - Other (notice of continued trial and trial readiness conference dates) filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 112 10/30/2014 Ex Parte scheduled for 11/12/2014 at 08:15:00 AM at Central in C-71 Ronald S. Prager. 113 11/10/2014 Ex Parte Application - Other and Supporting Documents filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 114 11/12/2014 Appointment of Official Reporter Pro Tempore (Dana Saruk, 10653, 619-884-6411) filed by The Superior Court of San Diego. 115 11/12/2014 Minutes finalized for Ex Parte heard 11/12/2014 08:15:00 AM. Date Printed: November 04, 2016 (2:50PM PDT) Page 4 of 10 Exhibit 1 Page 5 Case 3:16-cv-01696-W-MDD Document 14-2 Filed 11/16/16 Page 8 of 27 San Dieu() St. 'ourt Case: 37-2013-00046163-CU-BC-CTL e: Brightwell vs. RF Logistics LLC [IMAGED] 116 11/12/2014 Declaration - Other (Declaration of Jay D. Brown in RF Logistics LLC (Defendant); Response to Plaintiffs Ex Parte Discovery Conference) filed by RF Logistics LLC; O'Donnell, Brian. O'Donnell, Brian (Defendant) 117 12/22/2014 Ex Parte scheduled for 01/05/2015 at 08:15:00 AM at Central in C-71 Ronald S. Prager. 118 12/29/2014 The Ex Parte was rescheduled to 01/06/2015 at 08:15:00 AM in C-71 before Ronald S. Prager at Central. 119 12/29/2014 Ex Parte scheduled for 01/06/2015 at 08:15:00 AM at Central in C-71 Ronald S. Prager. 120 01/06/2015 Appointment of Official Reporter Pro Tempore (Dana Saruk, CSR#10653, 619-884-6411) filed by The Superior Court of San Diego. 121 01/05/2015 Ex Parte Application - Other and Supporting Documents filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 122 01/05/2015 Opposition - Other (to Third Ex Parte Discovery O'Donnell, Brian (Defendant); RF Conference) filed by O'Donnell, Brian; RF Logistics LLC. Logistics LLC (Defendant) 123 01/06/2015 Minutes finalized for Ex Parte heard 01/06/2015 08:15:00 AM. 124 01/13/2015 Notice of Change of Address / Telephone Number (and firm name) filed by RF Logistics LLC; O'Donnell, Brian. RF Logistics LLC (Defendant); O'Donnell, Brian (Defendant) 125 02/20/2015 Ex Parte scheduled for 03/02/2015 at 08:15:00 AM at Central in C-71 Ronald S. Prager. 126 02/25/2015 The Ex Parte was rescheduled to 03/03/2015 at 08:15:00 AM in C-71 before Ronald S. Prager at Central. 127 02/25/2015 Ex Parte scheduled for 03/03/2015 at 08:15:00 AM at Central in C-71 Ronald S. Prager. 128 03/02/2015 Ex Parte Application - Other and Supporting Documents filed by RF Logistics LLC; O'Donnell, Brian. RF Logistics LLC (Defendant); O'Donnell, Brian (Defendant) 129 03/03/2015 Opposition - Other (Plaintiff Lee Brightwell's Opposition to Brightwell, L Lee (Plaintiff) Defendant's Ex Parte Application For Order for Commission to Issue A Trial Supbpoena in Hawaii to Pacific Access Mortgage) filed by Brightwell, L Lee. 130 03/03/2015 Minutes finalized for Ex Parte heard 03/03/2015 08:15:00 AM. 131 03/03/2015 Order - Other (Commission For Issuance of a Subpoena to RF Logistics LLC (Defendant); Produce Records At Trial) filed by RF Logistics LLC; O'Donnell, Brian (Defendant) O'Donnell, Brian. 132 03/13/2015 Joint Trial Readiness Conference Report filed by Brightwell, L Lee; RF Logistics LLC; O'Donnell, Brian. Brightwell, L Lee (Plaintiff); RF Logistics LLC (Defendant); O'Donnell, Brian (Defendant) 133 03/13/2015 Advance Trial Review Order filed by Brightwell, L Lee; RF Brightwell, L Lee (Plaintiff); RF Logistics LLC; O'Donnell, Brian. Logistics LLC (Defendant); O'Donnell, Brian (Defendant) 134 03/13/2015 Minutes finalized for Trial Readiness Conference (Civil) heard 03/13/2015 09:00:00 AM. 135 03/23/2015 Proof of Service by Mail filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 136 03/23/2015 Motion in Limine (5 of 7) filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 137 03/23/2015 Motion in Limine (7of 7) filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 138 03/23/2015 Motion in Limine (6 of 7) filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 139 03/23/2015 Motion in Limine (4 of 7) filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 140 03/23/2015 Motion in Limine (2 of 7) filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 141 03/23/2015 Motion in Limine (3 of 7) filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 142 03/23/2015 Motion in Limine (1 of 7) filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 143 03/23/2015 [Another document for ROA# 143] 143 03/23/2015 [Another document for ROA# 143] 143 03/23/2015 [Another document for ROA# 143] 143 03/23/2015 [Another document for ROA# 143] Date Printed: November 04, 2016 (2:50PM PDT) Page 5 of 10 Exhibit 1 Page 6 Case 3:16-cv-01696-W-MDD Document 14-2 Filed 11/16/16 Page 9 of 27 San Dieao Superior Court Case: 37-2013-00046163-CU-BC-CTL Brightwell vs. RF Logistics LLC [IMAGED] 143 03/23/2015 [Another document for ROA# 143] 143 03/23/2015 [Another document for ROA# 143] 143 03/23/2015 [Another document for ROA# 143] 143 03/23/2015 [Another document for ROA# 143] 143 03/23/2015 E-filing transaction partially accepted. 144 03/23/2015 Motion in Limine (No. 18) filed by ODonnell, Brian; RF Logistics LLC. 145 03/23/2015 Motion in Limine (No. 19) filed by O'Donnell, Brian; RF Logistics LLC. 146 03/20/2015 Motion in Limine (No 2) filed by O'Donnell, Brian; RF Logistics LLC. 147 03/20/2015 Motion in Limine (No 5) filed by O'Donnell, Brian; RF Logistics LLC. 148 03/20/2015 Motion in Limine (No 7) filed by O'Donnell, Brian; RF Logistics LLC. 149 03/20/2015 Motion in Limine (No 8) filed by O'Donnell, Brian; RF Logistics LLC. 150 03/20/2015 Motion in Limine (No 11) filed by O'Donnell, Brian; RF Logistics LLC. 151 03/20/2015 Motion in Limine (No 12) filed by O'Donnell, Brian; RF Logistics LLC. 152 03/20/2015 Motion in Limine (No 13) filed by ODonnell, Brian; RF Logistics LLC. 153 03/20/2015 Motion in Limine (No 15) filed by O'Donnell, Brian; RF Logistics LLC. 154 03/20/2015 Motion in Limine (No 16) filed by ODonnell, Brian; RF Logistics LLC. 155 03/20/2015 Motion in Limine (No 17) filed by O'Donnell, Brian; RF Logistics LLC. 156 03/24/2015 [Another document for ROA# 156] 156 03/24/2015 [Another document for ROA# 156] 156 03/24/2015 [Another document for ROA# 156] 156 03/24/2015 [Another document for ROA# 156] 156 03/24/2015 [Another document for ROA# 156] 156 03/24/2015 [Another document for ROA# 156] 156 03/24/2015 [Another document for ROA# 156] 156 03/24/2015 [Another document for ROA# 156] 156 03/24/2015 [Another document for ROA# 156] 156 03/24/2015 [Another document for ROA# 156] 156 03/24/2015 E-filing transaction partially accepted. 157 03/24/2015 Motion in Limine (No 1) filed by O'Donnell, Brian; RF Logistics LLC. 158 03/24/2015 Motion in Limine (No 3) filed by O'Donnell, Brian; RF Logistics LLC. O'Donnell, Brian (Cross - Complainant); RF Logistics LLC (Defendant) O'Donnell, Brian (Cross - Complainant); RF Logistics LLC (Defendant) O'Donnell, Brian (Cross - Complainant); RF Logistics LLC (Defendant) O'Donnell, Brian (Cross - Complainant); RF Logistics LLC (Defendant) O'Donnell, Brian (Cross - Complainant); RF Logistics LLC (Defendant) O'Donnell, Brian (Cross - Complainant); RF Logistics LLC (Defendant) ODonnell, Brian (Cross - Complainant); RF Logistics LLC (Defendant) ODonnell, Brian (Cross - Complainant); RF Logistics LLC (Defendant) O'Donnell, Brian (Cross - Complainant); RF Logistics LLC (Defendant) ODonnell, Brian (Cross - Complainant); RF Logistics LLC (Defendant) O'Donnell, Brian (Cross - Complainant); RF Logistics LLC (Defendant) O'Donnell, Brian (Cross - Complainant); RF Logistics LLC (Defendant) ODonnell, Brian (Cross - Complainant); RF Logistics LLC (Defendant) O'Donnell, Brian (Cross - Complainant); RF Logistics LLC (Defendant) Date Printed: November 04, 2016 (2:50PM PDT) Page 6 of 10 Exhibit 1 Page 7 Case 3:16-cv-01696-W-MDD Document 14-2 Filed 11/16/16 Page 10 of 27 'ourt 159 03/24/2015 160 03/24/2015 161 03/24/2015 162 03/24/2015 163 03/24/2015 164 03/25/2015 165 03/25/2015 166 03/25/2015 167 03/25/2015 168 03/25/2015 169 03/25/2015 170 03/25/2015 171 03/25/2015 172 03/25/2015 173 03/25/2015 174 03/25/2015 175 03/25/2015 176 03/25/2015 177 03/25/2015 178 03/25/2015 179 03/25/2015 180 03/25/2015 181 03/25/2015 182 03/25/2015 183 03/25/2015 184 03/25/2015 185 03/25/2015 186 03/25/2015 187 03/26/2015 188 03/26/2015 189 03/27/2015 190 03/30/2015 191 03/30/2015 192 03/30/2015 Case: 37-2013-00046163-CU-BC-CTL Title: Brightwell vs. RF Logistics LLC [IMAGED] Motion in Limine (No 4) filed by O'Donnell, Brian; RF O'Donnell, Brian (Cross - Logistics LLC. Complainant); RF Logistics LLC (Defendant) Motion in Limine (No 6) filed by O'Donnell, Brian; RF O'Donnell, Brian (Cross - Logistics LLC. Complainant); RF Logistics LLC (Defendant) Motion in Limine (No 9) filed by O'Donnell, Brian; RF O'Donnell, Brian (Cross - Logistics LLC. Complainant); RF Logistics LLC (Defendant) Motion in Limine (No 10) filed by O'Donnell, Brian; RF O'Donnell, Brian (Cross - Logistics LLC. Complainant); RF Logistics LLC (Defendant) Motion in Limine (No 14) filed by O'Donnell, Brian; RF O'Donnell, Brian (Cross - Logistics LLC. Complainant); RF Logistics LLC (Defendant) Opposition to Motion in Limine filed by O'Donnell, Brian. O'Donnell, Brian (Cross - Complainant) Opposition to Motion in Limine filed by O'Donnell, Brian. O'Donnell, Brian (Cross - Complainant) Opposition to Motion in Limine filed by ODonnell, Brian. O'Donnell, Brian (Cross - Complainant) Opposition to Motion in Limine riled by O'Donnell, Brian. O'Donnell, Brian (Cross - Complainant) Opposition to Motion in Limine filed by O'Donnell, Brian. O'Donnell, Brian (Cross - Complainant) Opposition to Motion in Limine filed by O'Donnell, Brian. O'Donnell, Brian (Cross - Complainant) Opposition to Motion in Limine filed by O'Donnell, Brian. O'Donnell, Brian (Cross - Complainant) Opposition to Motion in Limine filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) Opposition to Motion in Limine filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) Opposition to Motion in Limine filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) Opposition to Motion in Limine filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) Opposition to Motion in Limine filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) Opposition to Motion in Limine filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) Opposition to Motion in Limine filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) Opposition to Motion in Limine filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) Opposition to Motion in Limine filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) Opposition to Motion in Limine filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) Opposition to Motion in Limine filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) Opposition to Motion in Limine filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) Opposition to Motion in Limine filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) Opposition to Motion in Limine filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) Opposition to Motion in Limine filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) Opposition to Motion in Limine filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) Opposition to Motion in Limine filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) Opposition to Motion in Limine filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) Motion in Limine (Motion in limine (8)) filed by Brightwell, L Brightwell, L Lee (Plaintiff) Lee. Opposition to Motion in Limine filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) Peremptory Challenge (GRANTED) filed by RF Logistics RF Logistics LLC (Defendant) LLC. Opposition to Motion in Limine (Plaintiff Lee Brightwell's Brightwell, L Lee (Plaintiff) Opposition to Defendant's Motion in Limine 18 of 19 Regarding Evidence of Prostitution) filed by Brightwell, L Lee. Date Printed: November 04, 2016 (2:50PM PDT) Page 7 of 10 Exhibit 1 Page 8 Case 3:16-cv-01696-W-MDD Document 14-2 Filed 11/16/16 Page 11 of 27 San Diego Superior Court Case: 37-2013-00046163-CU-BC-CTL : Brightwell vs. RF Logistics LLC [IMAGED] 193 03/30/2015 Opposition to Motion in Limine (Plaintiff Lee Brightwell's Brightwell, L Lee (Plaintiff) Opposition to Defendant's Motion In Limine 19 of 19 Regarding "Yelling and Bullying") filed by Brightwell, L Lee. 194 04/03/2015 Motion in Limine (No 20) filed by RF Logistics LLC; O'Donnell, Brian. RF Logistics LLC (Defendant); O'Donnell, Brian (Defendant) 197 03/27/2015 Civil Jury Trial continued pursuant to Court's motion to 04/10/2015 at 08:45AM before Judge Ronald S. Prager. 198 03/27/2015 Minutes finalized for Civil Jury Trial heard 03/27/2015 08:45:00 AM. 199 03/27/2015 Miscellaneous Minute Order Finalized. 202 04/10/2015 Civil Jury Trial continued pursuant to party's motion to 04/17/2015 at 08:45AM before Judge Ronald S. Prager. 203 04/10/2015 Minutes finalized for Civil Jury Trial heard 04/10/2015 08:45:00 AM. 204 04/10/2015 Request for Judicial Notice (Defendants, RF Logistics, LLC and Brian O'Donnell's, Request for Judicial Notice at Trial; O'Donnell, Brian (Defendant); RF Logistics LLC (Defendant) Declaration of Jay D. Brown) filed by O'Donnell, Brian; RF Logistics LLC. 205 04/13/2015 Opposition to Motion in Limine filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 206 04/13/2015 Proof of Service filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 208 04/17/2015 Status Conference (Civil) scheduled for 04/22/2015 at 08:15AM before Judge Ronald S. Prager. 209 04/17/2015 Minutes finalized for Civil Jury Trial heard 04/17/2015 08:45:00 AM. 210 04/22/2015 Minutes finalized for Status Conference (Civil) heard 04/22/2015 08:15:00 AM. 211 04/22/2015 Peremptory Challenge (CCP 170.6) filed by Brightwell, L Brightwell, L Lee (Plaintiff) Lee. 212 04/21/2015 Opposition - Other (to Request for Judicial Notice) filed by Brightwell, L Lee (Plaintiff) Brightwell, L Lee. 213 04/21/2015 Proof of Service by Mail filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 214 04/23/2015 Preliminary Trial Conference scheduled for 05/06/2015 at 01:30:00 PM at Central in C-52 William R. Nevitt. 215 04/23/2015 Preliminary Trial Conference scheduled for 05/06/2015 at 01:30:00 PM at Central in C-52 William R. Nevitt was vacated. 216 04/23/2015 Status Conference (Civil) scheduled for 05/06/2015 at 01:30:00 PM at Central in C-52 William R. Nevitt. 217 04/23/2015 Notice of Hearing SD generated. 220 05/06/2015 Status Conference (Civil) continued pursuant to stipulation to 05/29/2015 at 09:00AM before Judge William R. Nevitt, Jr. 221 05/06/2015 Minutes finalized for Status Conference (Civil) heard 05/06/2015 01:30:00 PM. 222 05/21/2015 Miscellaneous Minute Order Finalized. 223 05/21/2015 Clerk's Certificate of Service By Mail SD generated. 224 05/21/2015 Status Conference (Civil) reassigned to Timothy Taylor for 05/29/2015 at 09:00:00 AM in C-72 at Central. 225 05/21/2015 Status Conference (Civil) scheduled for 05/29/2015 at 09:00:00 AM at Central in C-72 Timothy Taylor. 226 05/29/2015 Minutes finalized for Status Conference (Civil) heard 05/29/2015 09:00:00 AM. 227 05/30/2015 Case reassigned from Judge Prager, Ronald S. to Timothy Taylor effective 05/29/2015 229 06/09/2015 Motion Hearing (Civil) scheduled for 07/02/2015 at 01:30PM before Judge Timothy Taylor. 230 06/09/2015 Miscellaneous Minute Order Finalized. Date Printed: November 04, 2016 (2:50PM PDT) Page 8 of 10 Exhibit 1 Page 9 Case 3:16-cv-01696-W-MDD Document 14-2 Filed 11/16/16 Page 12 of 27 'eurt Case: 37-2013-00046163-CU-BC-CIL Brightwell vs. RF Logistics LLC [IMAGED] 231 06/09/2015 Clerk's Certificate of Service By Mail (Minutes Only) SD generated. 232 06/15/2015 Trial Brief (RF Logistic LLC and Brian ODonnells Trial Brief) filed by RF Logistics LLC; O'Donnell, Brian. RF Logistics LLC (Cross - Complainant); O'Donnell, Brian (Cross - Complainant) 233 07/02/2015 Motion Hearing (Civil) scheduled for 07/31/2015 at 01:30:00 PM at Central in C-72 Timothy Taylor. 234 07/02/2015 Trial Brief (Supplemental) filed by RF Logistics LLC; RF Logistics LLC (Defendant); O'Donnell, Brian. O'Donnell, Brian (Defendant) 235 07/02/2015 Appointment of Official Reporter Pro Tempore (Tadzia Martin) filed by The Superior Court of San Diego. 236 07/02/2015 Minutes finalized for Motion Hearing (Civil) heard 07/02/2015 01:30:00 PM. 237 07/10/2015 Civil Jury Trial scheduled for 10/02/2015 at 08:30:00 AM at Central in C-72 Timothy Taylor. 238 07/09/2015 Motion to Be Relieved as Counsel of Record filed by Brightwell, L Lee (Plaintiff) Brightwell, L Lee. 239 07/09/2015 Declaration in Support of Motion to be Relieved as Counsel filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 240 07/09/2015 Order Granting Attorney's Motion to be Relieved as Counsel submitted by Brightwell, L Lee received but not filed on Brightwell, L Lee (Plaintiff) 07/09/2015. 241 07/09/2015 Proof of Service by Mail filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 242 07/09/2015 Proof of Service by Mail filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 243 07/09/2015 Proof of Service by Mail filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 244 07/15/2015 Tentative Ruling for Motion Hearing (Civil) published. 245 07/20/2015 Proof of Service filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 247 07/21/2015 Notice of Sealed Document filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 249 07/21/2015 Sealed Document(s) (Plaintiffs Opposition to Attorney Scott Brightwell, L Lee (Plaintiff) McMillan's Motion to be Relieved as Counsel) filed by Brightwell, L Lee. 250 07/24/2015 Reply filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 252 07/27/2015 Miscellaneous Minute Order Finalized. 254 07/28/2015 Ex Parte scheduled for 07/29/2015 at 08:30:00 AM at Central in C-72 Timothy Taylor. 255 07/28/2015 Ex Parte scheduled for 07/29/2015 at 08:30:00 AM at Central in C-72 Timothy Taylor was vacated. 256 07/24/2015 Returned Mail (Notice of Jury Trial as to Atty Kevin N Heffernan; Notice was mailed to 2 addresses; Old address was unclicked; P.O. Note: Return to Sender-Unknown) filed by The Superior Court of San Diego. Refers to: RF Logistics LLC 257 07/28/2015 Notice of Sealed Document filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 259 07/31/2015 Order Granting Attorney's Motion to be Relieved as Counsel filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 260 07/31/2015 Appointment of Official Reporter Pro Tempore (Anne Brightwell, L Lee (Plaintiff) Zarkos #13095) filed by Brightwell, L Lee. 261 08/05/2015 Proof of Service by Mail filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 262 08/07/2015 Ex Parte scheduled for 08/12/2015 at 08:30:00 AM at Central in C-72 Timothy Taylor. 263 07/31/2015 Minutes finalized for Motion Hearing (Civil) heard 07/31/2015 01:30:00 PM. 264 08/06/2015 Notice - Other filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 265 08/11/2015 Ex Parte Application - Other and Supporting Documents filed by RF Logistics LLC. RF Logistics LLC (Defendant) 266 08/11/2015 Substitution of Attorney filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 267 08/11/2015 Opposition - Other filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) Date Printed: November 04, 2016 (2:50PM PDT) Page 9 of 10 Exhibit 1 Page 10 Case 3:16-cv-01696-W-MDD Document 14-2 Filed 11/16/16 Page 13 of 27 Dkgo Superior Court Case: 37-2013-00046163-CU-BC-CTL Brightwell vs. RF Logistics LLC [IMAGED] 268 08/11/2015 Proof of Service filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 269 08/12/2015 Minutes finalized for Ex Parte heard 08/12/2015 08:30:00 AM. 270 08/05/2015 Notice - Other (of apperance of counsel) filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 271 08/13/2015 Motion Hearing (Civil) scheduled for 09/11/2015 at 01:30:00 PM at Central in C-72 Timothy Taylor. 272 08/14/2015 Motion - Other (TO FILE AN UNDERTAKING) filed by RF RF Logistics LLC (Defendant); Logistics LLC; O'Donnell, Brian. O'Donnell, Brian (Defendant) 273 09/03/2015 Motion Hearing (Civil) scheduled for 09/11/2015 at 01:30:00 PM at Central in C-72 Timothy Taylor was vacated. 274 09/14/2015 Notice - Other (MOTION FOR PLTF TO FILE RF Logistics LLC (Defendant); UNDERTAKING IS OFF CALENDAR) filed by RF Logistics O'Donnell, Brian (Defendant) LLC; O'Donnell, Brian. 277 09/21/2015 Civil Jury Trial set for 10/2/15 at 8:30am vacated. 278 09/21/2015 Miscellaneous Minute Order Finalized. 279 09/21/2015 Notice of Dismissal by Court SD generated. 280 09/23/2015 Ex Parte scheduled for 09/30/2015 at 08:30:00 AM at Central in C-72 Timothy Taylor. 281 09/14/2015 Notice of Conditional Settlement filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 282 09/14/2015 Proof of Service filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 283 09/24/2015 Ex Parte Application - Other and Supporting Documents filed by Brightwell, L Lee. Brightwell, L Lee (Plaintiff) 284 09/30/2015 Minutes finalized for Ex Parte heard 09/30/2015 08:30:00 AM. 285 10/02/2015 Notice of Ruling (RE ex parte application RE production of transcript of 7/31/15 Sealed proceeding) filed by The McMillan Law Firm, APC. 286 11/02/2015 Notice of Change of Firm Name filed by Brightwell, L Lee. 287 12/11/2015 Request for Dismissal with Prejudice - Entire Action filed by Brightwell, L Lee (Plaintiff) Brightwell, L Lee. 288 12/11/2015 Amended Complaint dismissed with prejudice as to O'Donnell, Brian . 289 12/11/2015 Amended Complaint dismissed with prejudice as to RF Logistics LLC. 290 12/11/2015 Amended Complaint dismissed with prejudice as to Brightwell, L Lee . 291 12/11/2015 Cross-Complaint dismissed with prejudice as to Brightwell, L Lee . 292 12/11/2015 Cross-Complaint dismissed with prejudice as to O'Donnell, Brian . 293 12/11/2015 Cross-Complaint dismissed with prejudice as to RF Logistics LLC. 294 12/22/2015 Notice of Entry of Dismissal (with service list) filed by Brightwell, L Lee. 295 05/25/2016 Stipulation - Other - Fee Due (Stipulation to Unseal Filings and Transcript and Order Thereon) filed by Brightwell, L Brightwell, L Lee (Plaintiff); The McMillan Law Firm, APC Lee; The McMillan Law Firm, APC. (Attorney) Date Printed: November 04, 2016 (2:50PM PDT) Page 10 of 10 Exhibit 1 Page 11 Case 3:16-cv-01696-W-MDD Document 14-2 Filed 11/16/16 Page 14 of 27 EXHIBIT 2 Exhibit 2 Page 12 Case 3:16-cv-01696-W-MDD Document 14-2 Filed 11/16/16 Page 15 of 27 The McMillan Law Firm, APC 4670 Nebo Drive Suite 200 La Mesa, CA 91941 Lee Brightwell August 28, 2015 Invoice submitted to: Invoice # 10825 Professional Services Hrs/Rate Amount June 2015 6/9/2015 MV Manage data 0.05 10.00 200.00/hrCalendar hearing on oral argument, motions in limine. MV Review 0.05 10.00 200.00/hrRevise calendar re: motion in limine hearing. 6/10/2015 TW Review 0.10 NO CHARGE 135.00/hrCheck for tentative rulings on motions in limine. TW Communicat/FIRM 0.10 NO CHARGE 135.00/hrMeeting with SAM re tentative rulings / pre-trial order. TW Review 0.80 NO CHARGE 135.00/hrReview/Study tentative rulings on motions in limine / pre-trial order. 6/11/2015 MV Communicat/FIRM 0.05 NO CHARGE 200.00/hrDiscuss Judge Taylors order with Jessica re: calendaring dates for hearing, etc. MV Draft/revise 0.50 100.00 200.00/hrDraft/revise subpoena to Capital One Business Credit Corp and notice to consumer. Email to Excalibur to serve same on CSC. SAM Communicat/CLI 0.10 22.50 225.00/hrCall to Lee Brightwell. 6/14/2015 MV Manage data 0.15 30.00 200.00/hrDownload American Express records to my dropbox folder. Forward link to legal assistants for downloading and printing. Instructions re: same. Exhibit 2 Page 13 Case 3:16-cv-01696-W-MDD Document 14-2 Filed 11/16/16 Page 16 of 27 Lee Brightwell 2Page Hrs/Rate Amount 6/14/2015 MV Manage data 0.15 30.00 200.00/hrBrief review of American express records from 2012-2014 to determine recent spending trends. JM Manage data 0.20 NO CHARGE 65.00/hrLabeled, moved, and emailed Notice to Consumer Regarding Subpoena to Capital One and Capital One Business Records Subpoena. 6/15/2015 TW Review 0.40 NO CHARGE 135.00/hrReview defendants' trial brief. JM Manage data 0.10 NO CHARGE 65.00/hrScanned, labeled, moved, emailed and filed Defendant's Trial Brief. MV Communicat/FIRM 0.05 NO CHARGE 200.00/hrPrepare email to legal assistants re: AEO designation of Amex records and naming folder as such. 6/16/2015 MB Manage data 2.60 104.00 40.00/hrDownloaded AMEX docs, made new folder "AEO O"Donnell AMEX Records" in client folder under "Evidence," at request of MV. Printed out Statements, put in binder, tabbed by statement number, inserted sticky note tabs separating years, made table of contents and binder covers. MV Review 0.50 100.00 200.00/hrReview of email from Kevin Heffernan re: subpoena to Capital One. Prepare lengthy email response explaining same. Attach copy of previous subpoena. Email to Scott re: same. MV Communicat/MISC 0.05 10.00 200.00/hrPhone call with Officer Langlais re: status of subpoena for trial. Discuss possible new date for trial. 6/19/2015 MB Manage data 0.20 NO CHARGE 40.00/hrNamed, made label, holepunched, attached label & put in folder 150611- Brightwell Def RF Logistics Trial Brief. SAM Communicat/CLI 1.00 225.00 225.00/hrCall with client. 6/25/2015 MV Communicat/MISC 0.10 20.00 200.00/hrMultiple phone calls with Melissa at Coronado Police department re: appearance fees for the two officers subpoenaed. Discuss new trial date. 6/30/2015 JM Manage data 0.10 NO CHARGE 65.00/hrLabeled, moved, and emailed Letter to Client regarding Outstanding Balance. Exhibit 2 Page 14 Case 3:16-cv-01696-W-MDD Document 14-2 Filed 11/16/16 Page 17 of 27 Lee Brightwell 3Page Hrs/Rate Amount 6/30/2015 SAM Communicat/CLI 0.20 45.00 225.00/hrCall to client. SAM Communicat/MISC 0.20 45.00 225.00/hrCall to Marion Miller. Left message re effort to contact Lee. SAM Review 1.20 270.00 225.00/hrReview MIL rulings ire motion in limine. SUBTOTAL: [ 8.95 1,021.50] July 2015 7/1/2015 MB Manage data 2.00 80.00 40.00/hrGot documents ready for MIL Oral Argument: Consulted with Jessica on what is needed for MIL Oral Argument (Pl's MIL, Def's MIL, Pl's Oppo, Def's Oppo); checked computer for files, made list: Pl's MIL 1-8, Def' Oppo to Pl's MIL 1-7, Def's MIL 1-20, Pl's Oppo to Def's MIL 1-20. Pulled files from drawer: Many files were missing- Checked against list: printed Def's MIL 1-17, 2- hole punched, made folder with tabs.Consolidated files into one folder with tabs: Def's MIL 1-20, and Pl's Oppo to Def's MIL 1-20. Pl's Oppo to MIL 5 missing in drawer and on computer, looked it up on one legal, but wasn't there ( wasn't entered into system). Made tabs for Def's Oppo to Pl's MIL 1-7. Made 2 brown folder with labels to put files in. Left brown folders at Scott's door. MB Manage data 0.60 24.00 40.00/hrAccounting of O'Donnell Depo: Counted number of tabs, binders, and pages used. JM Manage data 0.70 45.50 65.00/hrLabeled, moved, emailed and filed exhibits for a Motion in Limine hearing: Credo Instant Merge Credit Report, Uniform Residential Loan Application, Email from Brightwell to Tarumoto regarding Deposits and Loan Application, Report from Cornoado Police Department regarding Brian ODonnell, IRS Wage and Income Transcript, RAIVS Third Party Rejection Notice and Central Pacific Bank Declaration of Custodian of Records JM Manage data 0.30 19.50 65.00/hrLabeled, moved, emailed and filed Declaration in Support of Attorneys Motion to Be Relieved as Counsel, Letter to Client Regarding Disengagement with Substitution of Attorney, and Notice of Clients Right to Fee Arbitration. SG Manage data 0.30 NO CHARGE 115.00/hrAssisted in the accounting of copies, tabs, binders, for the trial exhibits, and deposition, that we produced. Exhibit 2 Page 15 Case 3:16-cv-01696-W-MDD Document 14-2 Filed 11/16/16 Page 18 of 27 Lee Brightwell 4Page Hrs/Rate Amount 7/1/2015 MV Serve Documents 1.00 NO CHARGE 200.00/hrMail serve client with motion to be relieved as counsel. MV Manage data 0.15 NO CHARGE 200.00/hrPrint mailing label (express label) motion to be relieved as counsel. 7/2/2015 JP Attend hearing 2.30 NO CHARGE 40.00/hrDrove from 4670 Nebo Drive, La Mesa, CA 91941 to 330W Broadway, San Diego, CA 92101 and had a hearing. MB Manage data 2.00 80.00 40.00/hrPrinted all Pl's and Def's MIL, Made 2 indexes, made covers, bound both books for SAM. TW Meeting with 0.20 NO CHARGE 135.00/hrMeeting re hearing on motions in limine, etc. SAM Plan & Prepare 3.20 720.00 225.00/hrPlan & Prepare for hearing on motions in limine. SAM Appear/attend 0.50 112.50 225.00/hrTravel to hearing on motions in limine. SAM Appear/attend 2.30 517.50 225.00/hrAppear at hearing on motions in limine. SAM Appear/attend 0.50 112.50 225.00/hrReturn to office following hearing on motion in limine. SAM Other activity 0.30 67.50 225.00/hrCalendar dates, and email response to client. 7/3/2015 SAM Communicat/MISC 0.40 90.00 225.00/hrEmail Gruenberg re right to sue letter. SAM Communicat/MISC 0.20 45.00 225.00/hrEmail re Chevy Chase records. 7/5/2015 JM Manage data 0.10 NO CHARGE 65.00/hrLabeled, moved, and emailed Defendants Supplemental Trial Brief and Rulings on Motion in Limine. 7/7/2015 SAM Communicat/MISC 0.30 67.50 225.00/hrCall with Kevin Heffernan. SAM Communicat/CLI 0.30 67.50 225.00/hrEmail to client re talk with Kevin Heffernan. 7/9/2015 MV Draft/revise 0.80 NO CHARGE 200.00/hrDraft/revise proof of service on motion to be relieved as counsel. Mail serve opposing counsel. Scan and ocr documents to be uploaded with motion. Upload to Onelegal. Print confirmation page. Exhibit 2 Page 16 Case 3:16-cv-01696-W-MDD Document 14-2 Filed 11/16/16 Page 19 of 27 Lee Brightwell 5Page Hrs/Rate Amount 7/9/2015 SAM Communicat/MISC 0.30 67.50 225.00/hrCall from Kevin Heffernan re settlement. (2.) Call to client, okay's $550k.(.1) 7/13/2015 JM Manage data 0.20 NO CHARGE 65.00/hrEmailed and moved Scott McMillan Declaration in Support of Motion to Be Relieved as Counsel, Notice of Motion to Be Relived as Counsel, Proof of Service to Opposing Counsel, and the Proof of Service to Client. 7/15/2015 JM Manage data 0.10 NO CHARGE 65.00/hrDownloaded court electronic filed Motion to Be Relived as Counsel, the Declaration, three different versions of a Proof of Service, and the Notice of Electronic Filing Confirmation. 7/16/2015 MV Review 0.10 20.00 200.00/hrReview of notice from Court. Calendar date for trial. JM Manage data 0.10 NO CHARGE 65.00/hrEmailed and moved the court filed Declaration in Support of Motion to be Relieved as Counsel, Motion to Be Relieved as Counsel, Proposed Order Granting Attorneys Motion to Be Relieved as Counsel, three different Proof of Services, and the Notice of Confirmation of Filing. JM Manage data 0.20 NO CHARGE 65.00/hrScanned, labeled, moved, emailed and filed One Legal Order Receipt - Motion to Be Relieved as Counsel and Notice of Hearing - Jury Trial. 7/23/2015 TW Review 0.20 NO CHARGE 135.00/hrReview/File reply to opposition to motion to be relieved as counsel. TW Filing documentation 0.10 NO CHARGE 135.00/hrFile corrected reply to opposition to motion to be relieved as counsel. 7/24/2015 SAM Draft/revise 2.00 450.00 225.00/hrDraft/revise motion to withdraw. 7/27/2015 JM Manage data 0.20 NO CHARGE 65.00/hrDownloaded, printed, saved, labeled, moved, emailed and filed court Filed Reply and Filed Responsive Declaration and Reply Brief Regarding Motion to Be Relived. 7/28/2015 JM Manage data 1.20 78.00 65.00/hrDrove from 4670 Nebo Drive, La Mesa, CA 91941 to 330 W. Broadway, San Diego, CA 92101 to clock and drop the Corrected Reply to the Opposition to Be Relived as Counsel and the Proof of Service. Exhibit 2 Page 17 Case 3:16-cv-01696-W-MDD Document 14-2 Filed 11/16/16 Page 20 of 27 Lee Brightwell 6Page Hrs/Rate Amount 7/28/2015 JM Manage data 0.10 NO CHARGE 65.00/hrScanned, labeled, moved, emailed and filed Corrected Reply to Opposition to Motion to Be Relived and Counsel. 7/29/2015 JM Manage data 0.10 NO CHARGE 65.00/hrScanned, labeled, moved, emailed and filed Minute Order for Striking Reply Brief to Opposition to Motion to Be Relieved as Counsel and the not filed Notice of Errata. 7/30/2015 MB Manage data 0.40 NO CHARGE 40.00/hrPrepared files for mtn to relieve counsel: searched client directory, made a list of files, looked in file cabinet, made labels, printed, attached to brown folder. 7/31/2015 JP Manage data 3.30 NO CHARGE 40.00/hrDrove from 4670 Nebo Drive, La Mesa, CA to 330W Broadway, San Diego, CA 92101 and had an hearing. Drove from 330W Broadway, San Diego, CA 92101 to 4670 Nebo Drive, La Mesa, CA. SG Manage data 1.00 NO CHARGE 115.00/hrDrove to downtown court to pick up SAM from hearing. SAM Appear/attend 2.00 450.00 225.00/hrPrepare for and attend hearing on motion to withdraw. SUBTOTAL: [ 30.05 3,114.50] August 2015 8/1/2015 SAM Communicat/CLI 2.50 NO CHARGE 225.00/hrDiscuss billing with client. Attempt to arrive at a settlement of billing. 8/3/2015 JM Manage data 0.30 NO CHARGE 65.00/hrScanned, labeled, emailed, and moved court filed Order Granting Attorneys Motion to Be Relived, the filed order with the proof of service and a separate proof of service. 8/4/2015 SG Drafting documents 1.00 NO CHARGE 115.00/hrStarted drafting a spreadsheet of Brightwell billing charges. 8/5/2015 JM Manage data 0.10 NO CHARGE 65.00/hrScanned, labeled, moved, emailed and filed Proof of Service by Mail of Court Filed Order Granting Mtn to Be Relived as Counsel with One Legal Order Receipt. SG Manage data 2.90 NO CHARGE 115.00/hrContinued on entering billing information on an Excel spreadsheet. SG Manage data 2.60 NO CHARGE 115.00/hrEntered more data into the billing spreadsheet Exhibit 2 Page 18 Case 3:16-cv-01696-W-MDD Document 14-2 Filed 11/16/16 Page 21 of 27 Lee Brightwell 7Page Hrs/Rate Amount 8/5/2015 SG Manage data 2.00 NO CHARGE 115.00/hrReceived more information re billings to enter into spreadsheet. Continued entries. MV Draft/revise 0.20 NO CHARGE 200.00/hrDraft/revise proof of service of order to be relieved as counsel. Upload to OneLegal. Print confirmation sheet. Forward confirmation email to SAM. 8/6/2015 MB Manage data 0.30 NO CHARGE 40.00/hrLocated depo transcripts, put in box with other stuff from MV's office. Found Plantiff's copy of trial notebooks and moved them into the outside hallway to be collected. MB Manage data 1.20 NO CHARGE 40.00/hrCollected transcripts and made an inventory of docs we are giving to Brightwell. Typed up inventory and made printed copies. Took pictures of docs we are giving Brightwell on MV's phone. JM Manage data 0.10 NO CHARGE 65.00/hrDownloaded, printed, saved, labeled, moved, and filed court filed Proof of Service by Mail Order Granting Motion to Withdrawal. SG Manage data 0.50 NO CHARGE 115.00/hrContinued entering billings into Excel spreadsheet. SG Manage data 0.50 NO CHARGE 115.00/hrAdded more records to the Excel spreadsheet of clients billings. SAM Communicat/CLI 1.00 225.00 225.00/hrMeet with Josh Heinlein. MV Drafting documents 0.65 130.00 200.00/hrPrepare notice of attorney lien with proof of service. Edit/revise attorneys lien to add language of charging lien. MV Draft/revise 0.30 60.00 200.00/hrDraft/revise charging lien and proof of service. MV Review 0.20 NO CHARGE 200.00/hrReview of email from Scott to Heinlein re: picking up certain materials immediately. Instructions to MB re: creating index of the transcripts and other materials. MV Manage data 0.15 NO CHARGE 200.00/hrAssist with gathering materials and exhibits to provide to Lees new counsel, Mr. Heinlein. MV Manage data 0.10 NO CHARGE 200.00/hrForward photos of client materials taken on my smartphone to legal assistant for downloading to the computer. Exhibit 2 Page 19 Case 3:16-cv-01696-W-MDD Document 14-2 Filed 11/16/16 Page 22 of 27 Lee Brightwell 8Page Hrs/Rate Amount 8/7/2015 JP Manage data 4.10 164.00 40.00/hrStarted to inventory the documents in client file. 8/10/2015 MB Manage data 3.00 NO CHARGE 40.00/hrBilling: entering billing info into Excel spreadsheet. MB Manage data 2.40 NO CHARGE 40.00/hrBilling: entering billing info into Excel spreadsheet. JP Manage data 2.40 96.00 40.00/hrMade a list of documents that we will give to her new attorney. JP Manage data 1.10 44.00 40.00/hrPut onto boxes the Brightwell's files. JM Manage data 0.10 NO CHARGE 65.00/hrScanned, labeled, moved, emailed and filed Inventory of Documents Given to Brightwell. SG Manage data 0.90 NO CHARGE 115.00/hrResumed entering billings from Inv #6 into spreadsheet. Double checked entries. SG Manage data 3.50 NO CHARGE 115.00/hrContinued entering billing records from the 74 page Inv #6. SG Manage data 0.80 NO CHARGE 115.00/hrCompleted the initial spreadsheet of the #6 Invoice, less some descriptions. Adding in subtotals in order to balance. 8/11/2015 JM Manage data 0.20 NO CHARGE 65.00/hrDownloaded, saved, printed, labeled, moved, emailed and filed court filed Notice of Charging Lien for Attorneys Fees and Costs. SAM Communicat/CLI 0.20 45.00 225.00/hrCall to Josh Heinlein, review file re date of discovery cut-off. Defendants are attempting to reopen discovery. SAM Communicat/CLI 0.20 45.00 225.00/hrCall from Josh Heinlein. SG Manage data 0.40 NO CHARGE 115.00/hrAdded monthly sub totals, and Invoice total cells to spreadsheet. Confirmed accommodation rates from SAM. SG Drafting documents 2.10 NO CHARGE 115.00/hrContinued drafting the spreadsheet of clients 6th billing invoice, with corrections and accommodations included. Added more descriptions as well. Exhibit 2 Page 20 Case 3:16-cv-01696-W-MDD Document 14-2 Filed 11/16/16 Page 23 of 27 Lee Brightwell 9Page Hrs/Rate Amount 8/11/2015 SG Draft/revise 1.70 NO CHARGE 115.00/hrDraft/revise the spreadsheet with corrections and accommodations for potential settlement. 8/12/2015 JP Manage data 2.10 NO CHARGE 40.00/hrEntered the billing information into an Excel document. SG Draft/revise 2.10 NO CHARGE 115.00/hrDraft/revise to the billing spreadsheet with corrections and accommodations for potential settlement. SG Manage data 0.90 NO CHARGE 115.00/hrAdded another column to the spreadsheet. Calculated the Reduced rate offers and added to the column. 8/28/2015 SAM Other activity 87,000.00 Contingency Fee, 20% of $435,000. SUBTOTAL: [ 44.80 87,809.00] For professional services rendered $91,945.0083.80 Additional Charges : April 2015 4/9/2015 SAM Office Supplies 216.00 Binders for trial. Witness set 20; Plaintiff set 9; Court copy 3 SAM Office Supplies 293.93 Tabs for trial binders. Number of Tabs to complete binders Def produced: 556, Number of Tabs for Witness copy: 1173 SAM Copying 1,074.00 Number of pages to complete binders Def produced: 3 sets given to them, 1 for the Plaintiff copy7160 SUBTOTAL: [ 1,583.93] June 2015 6/30/2015 SAM Copying 36.50 Print copies of documents at court produced under subpoena duces tecum. SUBTOTAL: [ 36.50] July 2015 7/1/2015 SAM Office Supplies 18.00 O'Donnell deposition; 3 binders. Exhibit 2 Page 21 Case 3:16-cv-01696-W-MDD Document 14-2 Filed 11/16/16 Page 24 of 27 Lee Brightwell 10Page Amount 7/1/2015 MV Postage 18.11 USPS. Motion to be Relieved. (ccard 4469) 7/2/2015 SAM Office Supplies 48.28 Tabs for O'Donnells deposition binders. SAM Copying 1,125.00 Copies for O'Donnel's deposition. 7/3/2015 SAM Printing 1,191.28 O'Donell Deposition binders. -3 Binders ($6ea) =$18 -284 Tabs (.17 cent/tab) =$48.28 -7500 Pages (.15 cents/page) =$1125 Total =$1191.28 SAM Trial exhibits 1,583.93 Trial Exhibit Binders -36 Binders ($6ea) =$216 -1729 Tabs (.17 cent/tab) =$293.93 -7160 Pages (.15 cents/page) =$1074 Total =$1583.93 7/14/2015 SAM Service of Doc 67.95 One Legal. (Gen Op. 2940). Notice of Motion to be Relieved as Counsel of Record. 7/24/2015 SAM Service of Doc 8.94 One Legal. (Gen Op. 2940). Corrected Reply to Opposition. 7/28/2015 JM Travel to/from 13.86 Drove from 4670 Nebo Drive, La Mesa, CA 91941 to 330 W. Broadway, San Diego, CA 92101 drove back to 4670 Nebo Drive, La Mesa, CA 91941. JM Parking 1.25 Parking. SUBTOTAL: [ 4,076.60] August 2015 8/5/2015 SAM Service of Doc 9.93 One Legal. (Gen Op. 2940). Proof of Service by Mail. 8/11/2015 SAM Service of Doc 9.93 One Legal. (Gen Op. 2940). Notice of Charging Lien for Attorney's Fees and Costs. SAM Printing 7.50 Superior Court of CA. (ccard 1835). Minute Order. Exhibit 2 Page 22 Case 3:16-cv-01696-W-MDD Document 14-2 Filed 11/16/16 Page 25 of 27 Lee Brightwell 11Page Amount 8/21/2015 SAM Court Reporter 175.00 SDCRC. Hearing on 07/31/15. TMLF ck #8559. SAM Court Reporter 384.00 San Diego Court Reporting Service. Invoice No. 3190.3 Hearing on Motions in Liminie. TMLF ck #8560. 8/28/2015 SAM E123 Other professionals 1,178.33 Reversed credit for expenses incurred in failed mediation. [Entry 1890, dated 3/15/2015] $1178.33 to Judicate West. SUBTOTAL: [ 1,764.69] Total additional charges $7,461.72 Total amount of this bill $99,406.72 Previous balance $62,535.87 Accounts receivable transactions 7/12/2015 Payment from account, TMLF IOLTA 12507. ($5,000.00) 8/28/2015 Credit re: Sherri Gale's charges to $75 per hour. ($3,007.50) 8/28/2015 Credit for Michelle D Volk for Invoice No. 10810 as follows: 02/24/15 Entry 139652 $40 03/02/2015 $20 03/06/15 Entry 139844 $480 03/10/15 Entry 139989 $110 Entry 139990 $110 03/11/15 Entry 139981 $130 03/13/15 Entry 134362 $50 03/17/15 Entry 134687 $30 03/19/15 Entry 134696 $130 03/23/15 Entry 134754 $100 04/08/15 Entry 135621 $10 ($1,210.00) 8/28/2015 Credit for Cassandra Ballridge for Invoice No. 10810 as follows: 02/25/15 Entry 133664 $48 02/26/15 Entry 139898 $44 03/12/15 Entry 139959 $112 03/13/15 Entry 134689 $4 03/16/15 Entry 134392 $12 03/17/15 Entry 134414 $24 Entry 134415 $56 Entry 134426 $4 03/19/15 Entry 134619 $40 Entry 134620 $8 03/20/15 Entry 134629 $40 Entry 134637 $8 Entry 134639 $20 Entry 134640 $4 03/23/15 Entry 134848 $8 Entry 134853 $8 ($648.00) Exhibit 2 Page 23 Case 3:16-cv-01696-W-MDD Document 14-2 Filed 11/16/16 Page 26 of 27 Lee Brightwell 12Page Amount 03/24/15 Entry 134864 $12 03/25/15 Entry 135140 $4 Entry 135153 $16 Entry 135164 $20 03/30/15 Entry 135218 $4 Entry 135220 $8 04/06/15 Entry 135457 $4 04/09/15 Entry 135532 $12 Entry 135536 $72 Entry 135537 $60 8/28/2015 Credit for Michaele Kanczel for Invoice No. 10810 as follows: 03/18/15 Entry 134130 $13.75 03/20/15 Entry 134157 $8.25 Entry 134160 $5.5 03/24/15 Entry 134166 $5.5 ($33.00) 8/28/2015 Credit for Thomas Wiseman for Invoice No. 10810 as follows: 03/30/15 Entry 134944 $121.5 ($121.50) Total payments and adjustments ($10,020.00) Balance due $151,922.59 Timekeeper Summary Name Jessica Marshall Josephine Pic Michelle Busch Michelle Volk Scott A. McMillan Sherri Gale Tom Wiseman Exhibit 2 Page 24 Case 3:16-cv-01696-W-MDD Document 14-2 Filed 11/16/16 Page 27 of 27 1 CERTIFICATE OF SERVICE 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Heather L. Rosing, Bar No. 183986 Daniel S. Agle, Bar No. 251090 KLINEDINST PC 501 West Broadway, Suite 600 San Diego, California 92101 (619) 239-8131/FAX (619) 238-8707 hrosing@klinedinstlaw.com dagle@klinedinstlaw.com Attorneys for Defendants THE MCMILLAN LAW FIRM, APC; SCOTT A. MCMILLAN and MICHELLE D. VOLK UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA L. LEE BRIGHTWELL, an individual, Plaintiff,, v. THE MCMILLAN LAW FIRM, APC, a professional corporation; SCOTT A. MCMILLAN, an individual; MICHELLE D. VOLK, an individual; and DOES 1 through 25, inclusive, Defendants. Case No. 16-CV-1696 W MDD CERTIFICATE OF SERVICE Courtroom: 3C Judge: Thomas J. Whelan Magistrate Judge: Mitchell D. Dembin Complaint Filed: June 30, 2016 Trial Date: None set I declare that: I am and was at the time of service of the papers herein, over the age of eighteen (18) years and am not a party to the action. I am employed in the County of San Diego, California, and my business address is 501 West Broadway, Suite 600, San Diego, California 92101. On November 16, 2016, I caused to be served the following documents: NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; REQUEST FOR JUDICIAL NOTICE Case 3:16-cv-01696-W-MDD Document 14-3 Filed 11/16/16 Page 1 of 3 2 CERTIFICATE OF SERVICE 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BY REGULAR MAIL: I caused such envelopes to be deposited in the United States mail, at San Diego, California, with postage thereon fully prepaid, individually, addressed to the parties as indicated. I am readily familiar with the firm’s practice of collection and processing correspondence in mailing. It is deposited with the United States postal service each day and that practice was followed in the ordinary course of business for the service herein attested to. (Fed. R. Civ. P. 5(b)(2)(B).) BY OVERNIGHT SERVICE: I caused such envelopes to be delivered by Overnight/Express Mail Delivery to the addressee(s) noted in this Certificate of Service. BY FACSIMILE TRANSMISSION: I caused a true copy of the foregoing document(s) to be transmitted (by facsimile # ) to each of the parties mentioned above at the facsimile machine and as last given by that person on any document which he or she has filed in this action and served upon this office. BY ELECTRONIC FILING SERVICE: By electronically filing the foregoing document(s) using the CM/ECF system. Service of an electronically filed document upon a CM/ECF User who has consented to electronic service is deemed complete upon the transmission of the Notice of Electronic Filing ("NEF"). The NEF will be maintained with the original document(s) in our office. BY PERSONAL SERVICE: I served the person(s) listed below by leaving the documents, in an envelope or package clearly labeled to identify the person being served, to be personally served via Cal Express Attorney Service on the parties listed on the service list below at their designated business address. By personally delivering the copies; By leaving the copies at the attorney’s office; With a receptionist, or with a person having charge thereof; or In a conspicuous place in the office between the hours of ______ in the morning and five in the afternoon; By leaving the copies at the individual’s residence, a conspicuous place, between the hours of eight in the morning, and six in the afternoon. I declare that I am employed in the office of a member of the bar of this Court, at whose direction the service was made. Joshua M. Heinlein, Esq. Joseph S. Leventhal, Esq. Dinsmore & Shohl LLP 655 West Broadway, Suite 840 San Diego, California 92101 619-356-3518/FAX 619-615-2082 Joshua.heinlein@dinsmore.com Joseph.leventhal@dinsmore.com Attorneys for Plaintiff L. Lee Brightwell Case 3:16-cv-01696-W-MDD Document 14-3 Filed 11/16/16 Page 2 of 3 3 CERTIFICATE OF SERVICE 16-CV-1696 W MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the United States Postal Service on that same day with postage thereon fully prepaid at San Diego, California, in the ordinary course of business. 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 the date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on November 16, 2016, at San Diego, California. s/ Daniel S. Agle Daniel S. Agle 16709809v1 Case 3:16-cv-01696-W-MDD Document 14-3 Filed 11/16/16 Page 3 of 3
