Response To Osc

Response

Cal. Super. - 1st Dist.May 12, 2015

~ N O N L e A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JEREMY L. FRIEDMAN, CA Bar No. 142659 Attorney At Law 2801 Sylhowe Road Oakland, CA 94602 Telephone: (510) 530-9060 Facsimile: (510) 530-9087 SUPERIOR COURT FOR THE STATE OF CALIFORNIA CITY AND COUNTY OF SAN FRANCISCO Jeremy L. Friedman, Case No. CGC - 15 - 545796 Plaintiff, RESPONSE TO ORDER TO SHOW CAUSE AND STATUS REPORT Vs. FOR STAYED CASE MEDHANIE BERHE, PATSY HARDY, MICHELLE MIKE, WILMA JOYCE JENNINGS, and RENA HARRISON THOMAS Date: October 2, 2018 Time: 10:30 a.m. Dept: 610 Defendants. N r N r N r ” N r N N N N N N INTRODUCTION In its August 8, 2018, Order to Show Cause, the Court required a statement of reasons why sanctions should not be imposed for failure to provide a status of the stay in this case. Plaintiff files this written opposition to the imposition of sanctions, and further provides a status of the stay in this case. As detailed below, after completion of the Ninth Circuit appealin the related federal proceedings, plaintiff had been conferring with counsel for his former clients regarding the appropriate disposition of this action, but was delayed due to an intervening period of bereavement. Plaintiff anticipates that further discussions will lead to the resolution ofthis case within 65 days. STATUS OF STAY 1. This action arises out of a fee dispute between plaintiff and five clients he represented in the related federal case of Hill et al. v. Kaiser Foundation Health Plan, et al., United States District Court for the Northern District of California, Case No. 3:10-cv-2833 LB (the “Hill litigation”) the Hill litigation. Response to OSC — Page 1 ~ N O N L e A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Plaintiff filed this action on May 12, 2015, along with a rejection of a non- binding arbitration award with the Bar Association of San Francisco (BASF) and request for trial de novo. Said non-binding arbitration was instituted by client defendants against Attorney Friedman, and filing of his complaint and rejection was required in order to preserve statutory rights and claims following the non-binding arbitration. 3. All client defendants are currently represented by separate counsel in the Hill litigation with respect to the fee dispute: Ron U. Lunski, LUNSKI & STIMPERT LLP, 201 Spear Street, Suite 1100, San Francisco, CA 94105, Ph: (415) 426-3525, Fax:(415) 426-3524, email: ron@lunskilaw.com. 4. While this action was pending, both sides to this dispute — client defendants and plaintiff Attorney Friedman — sought resolution of their fee dispute in the Hill litigation. Client defendants filed a motion in the Hill litigation on May 20, 2015, styled as a “motion to enforce settlement agreement.” Plaintiff opposed the client defendants’ motion, but on June 3, 2015,he filed his own motion invoking the supplemental jurisdiction of the federal court to determine his reasonable attorneys’ fees. On September 1, 2015, the district court denied client defendants’ motion to enforce the settlement agreement, declined to award reasonable attorneys’ fees against the Hill defendant, and granted Attorney Friedman’s motion to invoke its supplemental jurisdiction. It then set further proceedings on the matter of Friedman’s fees. 5. Client defendants and Attorney Friedman then submitted briefing to the district court, including a motion, opposition, declarations, exhibits and several matters under seal. A lengthy hearing was held before the district court on August 18, 2016. On September 19, 2016, the district court issued an order on the fee motion. The court noted that it had invoked ancillary jurisdiction, butit denied Friedman’s motion for additional fees, finding plaintiff received his reasonable statutory fees in the settlement agreement. First, the district court found Friedman was bound to the amountallotted to him by the settlement agreement, and alternatively, the district court found Friedman’s lodestar did not exceed the fees received. Response to OSC — Page 2 ~ N O N L e A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. Friedman had already appealed the denial of fees against the Hill defendants to the Ninth Circuit Court of Appeals. Following the district court’s denial of Friedman’s motion against the clients, Friedman October 18, 2016, filed an amended notice of appeal. A second amended notice was filed after the district court denied a post-order motion to amend the fee order. All appeals were assigned Case No. 15-16952. 7. Attorney Friedman, Hill defendants and client defendants all briefed their respective issues in the Ninth Circuit. On March 28, 2018, the Ninth Circuit issued an order advising the parties that it would take the matter under submission without oral argument. On April 16, 2018, a panel ofNinth Circuit judges issued an unpublished memorandum which affirmed the judgment of the district court. Although the Ninth Circuit did not adopt the reasoning ofthe district court that Attorney Friedman was bound by the terms of the Hill settlement, it affirmed the district court’s judgment that Attorney Friedman had received his lodestar fee. 8. Attorney Friedman filed a petition for rehearing on May 30, 2018, addressing aspects of the lodestar determination. On June 11, 2018,that petition was denied without a statement of decision. 9. The time for filing a petition for a writ of certiorari remains open to Attorney Friedman, butheis likely to forego that option, and he is notlikely to want to proceed in this action against his former clients. While the federal court did not negate the underlying fact that client defendants breached their agreements regarding assignment,it did determine the amount of Friedman’s reasonable fees under the statute. As such, Friedman is interested in a final resolution of this matter. 10. As recognized in Calderon v. Kane, 36 Cal. App. 4th 1663, 1666-67, 43 Cal. Rptr. 2d 480, 482 (1995), where a party dismisses a request for a trial de novo, the court retains the discretion to vacate the dismissal in order to reinstate the prior arbitration award or, upon a proper showing of prejudice by the nonfiling party, to vacate the dismissal and require the parties to proceed to a trial de novo. Such a measure would not be appropriate in this case, however. Plaintiff was required to file this action to preserve Response to OSC — Page 3 ~ N O N L e A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 his rights, but while it was stayed, the district court determined the amount of his fees. As such, the matter in dispute at the time of the arbitration has now been excepted. See Cal. Bus. & Prof. Code § 6200(b) (“This article shall not apply to ... Disputes where the fee or cost to be paid by the client or on his or her behalf has been determined pursuant to statute or court order”); Vasquez v. Jim Aartman, Inc., 2005 U.S. Dist. LEXIS 49003, at *15-17 (E.D. Cal. 2005). 11. In August, plaintiff had began discussions with Attorney Lunski — representing the former clients — regarding global closure. Unfortunately, while he was researching the above issues, Attorney Friedman has suffered a personal bereavement loss, and has been unable to direct his attention to a final stipulation. Plaintiff believes that a final resolution will be possible within 65 days of this date. ARGUMENT Plaintiff should not be sanctioned for his previous failure to provide a status of this stayed case. Plaintiff has been diligent in the prosecution of the Hill action, including multiple proceedings in the district court and on appeal. While he was close to a final, global resolution ofthis action, an intervening period of unavailability due to bereavement has delays final dismissal. In this Court, plaintiff had never failed to appear at a hearing, and had not otherwise failed to respond to matters set by this Court. In fact, plaintiff has never been sanctioned by any court. After plaintiff returns from his unavailability, he will continue his conferring with Mr. Lunski. Within 45 days of the October 2 hearing, or 65 days from today, plaintiff intends to have a stipulation or other pleading for final resolution and disposition ofthis action. CONCLUSION The Court is provided with a status of the stay. For the foregoing reasons, the Court should not impose sanctions upon plaintiff. Plaintiff asks the Court to vacate the October 2 hearing, and set the matter for a status conference more than 45 days after that date. Response to OSC — Page 4 ~ N O N L e A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: September 12, 2018 Respectfully submitted, /s/Jeremy L. Friedman Jeremy L. Friedman Response to OSC — Page 5 ~ N O N L e A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Jeremy L. Friedman declares and states: I have an office in Alameda county. I am over the age of eighteen years. My business address is 2801 Sylhowe Road, Oakland, CA, 94602. I declare that on this day I served a copy of: RESPONSE TO OSC DECLARATION IN RESPONSE TO OSC PROPOSED ORDER RE OSC by electronic communication to the following email addresses listed for counsel for client defendants as maintained in the Electronic Mail Notice List for the Hill litigation: Ron U. Lunski, LUNSKI & STIMPERT LLP, 201 Spear Street, Suite 1100, San Francisco, CA 94105 email: ron@lunskilaw.com. I declare under penalty of perjury that the foregoing is true and correct. Executed this 12" day of September, 2018. /s/Jeremy L. Friedman Jeremy L. Friedman Response to OSC — Page 6