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Kevin M. Sullivan (SBN: 124523)
Law Offices of Kevin M. Sullivan
3 490 Post St, Suite 452 ELECTRONICALLY
San Francisco, CA 94102
3 (415) 860-2170 F I L E D
Superior Court of California,
County of San Francisco
4 Attorneys for Plaintiff Maher Memarzadeh
12/18/2019
Clerk of the Court
BY: BOWMAN LIU
SUPERIOR COURT OF THE STATE OF CALIFORNIA Deputy Clerk
IN AND FOR THE COUNTY OF SAN FRANCISCO
an individual, Case No.: CGC-19-574738
MAHER MEMARZADEH,
Plaintiffs'irst Amended Complaint For Damages
9 Plaintiff,
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1.Negligence (Legal Malpractice); And
V. 2. Breach Of Fiduciary Duty
ll 3. Fraud (Intentional Misrepresentation)
4. Fraud (Fraudulent Concealment)
VAL DAWSON HORNSTEIN, an individual;
5. Breach Of Contract
HORNSTEIN LAW OFFICES,
6. Breach Of Implied Covenant Of Good Faith And
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PROFESSIONAL CORPORATION Fair Dealing
(C2626906); and DOES 1-50, inclusive, 7. Tortious Interference
14 Infliction Of Emotional Distress
8. Intentional
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Defendants.
DEMAND FOR JURY TRIAL
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Plaintiff Maher Memarzadeh, (" PLAINTIFF" ), hereby alleges as follows:
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GENERAL ALLEGATIONS
20 1. Plaintiff is, and at all relevant times was, an individual residing in the County of Los Angeles,
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State of California.
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2. Defendants Val Dawson Hornstein An Individual, and Hornstein Law Offices, ("Hornstein", or
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"Defendants" ) are, on information and belief: (a) residents of the County of Marin; (b) is practicing law
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in San Francisco; and (c) since June 16, 1988 is an active Member of The State Bar of California, Bar
26 Number 133726 with a California Lawyers Association (CLA) Section in Business Law.
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3. On information and belief, Val D. Homstein is, at all times relevant herein, the President and
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Plaintiffs First Amended Complaint for Damages
the Secretary of Hornstein Law Offices, Professional Corporation, an active law firm organized under the
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laws of the State of California, operating from its offices in Marin County, California located at 1000
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Fourth Street, Suite 750, San Rafael, CA 94901.
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4. On information and belief, Hornstein Law Offices is incorporated under the laws of the State of
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California as California Corporate Entity Number C2626906 with registration date of 07/12/2004 with
7 mailing address at PO Box 151602 San Rafael, San Rafael, CA 94915. Defendant Hornstein uses
conference rooms at 275 Battery Street, 16ta Floor, San Francisco, CA 94111, where he also accepts
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payments for his legal services, and led Plaintiff to believe that his law practice is in the City and County
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of San Francisco, and by implication is familiar with San Francisco Local Law. Defendant Hornstein lists
Il
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his address on The State Bar website, billing statements, and on his Retainer Agreement as 275 Battery
13 Street, 164 Floor in San Francisco.
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5. The true names and capacities, whether individual, corporate, associate or otherwise, of
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Defendants DOES 1 through 50, inclusive, are unknown to Plaintiff, who therefore sues those Defendants
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by such fictitious names and will ask leave of Court to amend this Complaint to show the true names and
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capacities when the same have been ascertained. Plaintiff is informed and believes and based thereon
19 alleges, that each of the fictitiously named Defendants designated herein as a DOE is in some manner
legally liable to Plaintiff by reason of the allegations contained herein.
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6. Plaintiff is informed and believes and, based thereon alleges, that each Defendant, including
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DOES 1 through 50, was and is the agent, servant, employee, partner, or joint venturer of each other
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Defendant, and that each Defendant was acting within the course and scope of such agency, employment,
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partnership or joint venture, and with the consent or the ratification of each other in doing the things
alleged here.
//
2S
Plaintiffs First Amended Complaint for Damages
1 FACTS COMMON TO ALL CAUSES OF ACTION
7. On Wednesday, June 21, 2017 at 2:00 pm, the San Francisco Bar Association Lawyer Referral
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Service scheduled a telephone appointment for Plaintiff to retain Defendant who represented himself as a
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land use attorney, "for a land-use matter, specifically a Rear- Yard Variance to except an addition for
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[Plaintiff's] property in Bernal Heights (408-412 Cortland Avenue)." In the meeting with Defendant,
7 Plaintiff disclosed to him that the San Francisco Planning Dept. had set a September 27, 2017 Variance
Hearing for SF Planning App. No. 2015-008499VAR (the "Variance Application" ) to be heard. Plaintiff
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also related the following requirements, among others, to Defendant: "possible environmental review
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with regards to CEQA" and '*addressing neighbors'ueries regarding the SF Planning Code and owner
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entitlements for property improvement."
13 8. On July 13, 2017, Defendant provided Plaintiff with a Legal Services Agreement which stated
'4 as part of the Scope of Services: Defendant was "to review the current files" and "provide legal services"
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for "the Property's Variance Application 2015-008499VAR (for variance request to the rear yard
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requirement to permit the second story addition of approximately 27 ft. x 25 ft. on top of the existing one-
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s t o r y p o r t i o n o f t h e bu i 1 d i n g a t t h e r ea r I o t I i n e fo r t h e p u r p o s e o f p ro v i d i n g a d d i t i on a I p e r m i t t e d
0
19 neighborhood-serving retail uses) now pending with the San Francisco Planning Department."
20 9. On May 11, 2018, Plaintiff wrote Defendant demanding that Defendant provide Plaintiff with
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status updates about what he was doing with regard to their Legal Services Agreement of July 13, 2017 in
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light of Plaintiff s express requests for information about estimates of hours on different occasions.
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10. Plaintiff's May 2018 letter cites emails from April 9, 2018 through May 11, 2018 requesting
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from Defendant estimates of hours, assignments Defendant was working on, and the status of the
Variance Hardship Criteria pursuant to SF Planning Code I2305.
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11. Plaintiff s reasonable status inquiries include, but are not limited to, the following:
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Plaintiffs First Amended Complaint for Damages
l a. Plaintiff expressly authorizes Defendants two (2) hours and, significantly, cites Attorney's Fees
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as a concern: "Since that argument would be crafted by you, the attorney, in order to obtain a CatEx
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stamp and reduce incurrence of further costs for your client, I will authorize a couple of hours to research
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and articulate the argument."
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b. Plaintiff requests from Defendants an estimate of hours to locate suitable Hardship Arguments
7 pursuant to SF Planning Code I'1305:"Please estimate the number of hours you require to locate
appropriate hardship arguments per my request: "(D) Strengthen 'Hardship arguments': minimum criteria
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for hardship in a unique case like this'."
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c. Plaintiff requests that the consultant-planner explain exactly what is required from Defendant
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with respect to suitable Hardship Arguments: "While we await an estimate from Val and Matthew, as
13 well, would you please clarify what you mean by 'their experience with SF Zoning law'? (Apr 12, 2018
'4 at 10:21 AM)'*
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d. Plaintiff expresses recurring billing concerns about Defendant spending unauthorized hours: "I
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trust you would not be spending unauthorized hours."
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12. Plaintiff, while the Legal Services Retainer Agreement was being negotiated, had expressed
l9 concerns regarding Defendant providing "not-to-exceed hourly estimates for each task" that Plaintiff had
enumerated for SF Planning App. No. 2015-008499VAR. Although Defendant was aware of Plaintiff s
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need to budget Attorney*s Fees, Defendant did not begin to review the case file to provide an estimate of
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hours for tasks as Plaintiff had requested. In fact, Defendant did not "review the current files," nor did
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Defendant "learn the law that applies*'o facts relevant for obtaining the Variance, nor did Defendant
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"request further information*'r documents to inform and "communicate" his findings to Plaintiff. Not
until nine months after being retained did Defendant engage in his contractual duties. At the beginning of
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the relationship, Defendant stated: "The [Agreement Terms] Isent you are as specific as I can be at this
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Plaintiffs First Amended Complaint for Damages
time because I have not reviewed the entire case file yet so there is no possible way to estimate time for
various aspects, or even what those aspects might be." Defendant could have reasonably reviewed the
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case file within the first few months of being retained by Plaintiff.
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13. Between April 25, 2018 and May 4, 2018, when Defendants were drafting an unsolicited
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memorandum, they failed to respond to Plaintiff. Defendant made NO attempts to contact Plaintiff to
advise him what Defendants were doing with respect to locating suitable Hardship Arguments: no
correspondence was sent from Defendants to Plaintiff. Defendants repeatedly failed to respond to
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Plaintiff even though they were legally obligated to "respond promptly to reasonable status inquiries of
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clients and to keep clients reasonably informed of significant developments in matters with regard to
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which the attorney has agreed to provide legal services." [Bus & Prof Code II6068(m)]
13 14. When Defendant replied to Plaintiff on May 3, 2018, Defendant enclosed a lengthy 13-page
'4 unsolicited memorandum ("May Memo" ) that was neither requested nor required by Plaintiff, but which
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Defendant charged Plaintiff over thirty hours time. Defendant specified the Memorandum to be
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regarding: "Review of Page & Turnbull's Report for Historic Resource Determination and Analysis of
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Variance Requirements and Hardship Arguments." The May Memo was unsolicited by Plaintiff and
19 unnecessary. Defendant billed 33.6 hours to prepare it without Plaintiff s knowledge or consent.
20 16. Plaintiff, upon receiving the May Memo, immediately questioned its need. Plaintiff noted the
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hours Defendant had spent up to that moment in proffering legal services pursuant to July 2017 Legal
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Services Agreement and disputed the usefulness and the cost of the May Memo. Plaintiff demanded that
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his query be undertaken with an estimate of hours as Plaintiff had initially requested: "Please state clearly
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how the memorandum you prepared is helpful or useful. I am disputing the usefulness of (and costs
associated with) this memorandum and demand that the abovementioned be undertaken, with an estimate
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of hours, this time, ASAP, instead. Please recall that I requested an estimate of hours on several
2 it
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PlaintiffsFirst Amended Compiaint for Damages
occasions [between Apr 9, 2018 and Wed, Apr 25, 2018]... I authorized 2hrs to research and articulate
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the argument for the connected basement between 410-12 and 408 to establish that the two buildings
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technically constitute one structure such that 408 should not be considered a detached structure when
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analyzing the massing issue. Thus far, I have spent $ 21,737.80 with Hornstein Law and you have
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proffered 41.2 hours of legal services, so I expect that our labours be useful for my Variance to be
granted." Defendant failed to directly provide a substantive reply to Plaintiff s query.
17. Between May 8, 2018 and May 10, 2018, Plaintiff again requested Defendant review
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Plaintiff s billing concerns as well as the May Memo. Plaintiff reminded Defendant of the money he had
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spent on Defendants, in the "unlimited jurisdiction situation," and requested they provide hour estimates
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for tasks: "As mentioned previously, I would like there not to be any redundancy in your activity,
13 research or otherwise. So, please disclose your tasks to me before engaging in them and estimate the
'4 hours that each individual task will require. This way I will not have to dispute any billing items again.
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Will drafting the attorney letters to neighbors require more than one (I) hour of your time? Please
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forward drafts to me for my review before sending", "Please reduce the billed hours from 4/24 - 4/30 to
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two (2) hours and as requested earlier, 'please disclose your tasks to me before engaging in them and
19 estimate the hours that each individual task will require. This way I will not have to dispute any billing
items again "Regarding billing, please be advised that on Wed, May 9, 2018 at 5:01 PM I requested:
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'Will drafting the attorney letters to neighbors require more than one (I) hour of your time? Please
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forward drafts to me for my review before sending.'"
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18. Defendants, on May 10, 2018, agreed and promised to do so: "We'l give you an estimate up
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front and send drafts to you."
26 19. On May 10, 2018 at 9:12 AM, Plaintiff requested of Defendant to review individual line items
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of Invoice 180430 ($ 7,502.50). Plaintiff expressed concern that legal services for the land-use matter
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Plaintiffs First Amended Complaint for Damages
were not performed with the required standard of care and not reflective of the facility that a land-use
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attorney would possess: "Please review the individual line items of the attached bill. I am concerned
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about the redundancy in billing especially since Matthew Harrison has been billing against the Page and
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Turnbull HRD Report when the report largely contains no more than 14 pages of text. Furthermore, his
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18.9 hours of billing produced a memorandum that I disputed on Fri, May 4, 2018 at 3:32 PM but the
7 18.9 hours do not reflect a land-use attorney's facility with the issues that a Variance entails, nor the
accumulated knowledge gathered from the case. Recall that I have spent $ 21,737.80 with Hornstein Law
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and you have proffered 41.2 hours of legal services, so the fluency of the land-use attorney should be
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greater than displayed. I greatly appreciate your line-by-line review of the current billing statement
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bearing the date 4 May 2018 (INVOICE NO. MEMA180430) and I trust you will reference previous
13 billing statements line by line to be able to resolve this billing issue. I trust you won't bill me for
reviewing the invoice(s).*'May 10, 2018)
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20. Defendant failed to reply to Plaintiff s subsequent requests to resolve the billing issue when
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Plaintiff had stated: "I proposed a solution to the disputed items already in my email to you from Wed,
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May 9, 20 I 8 at 9:00 PM. I have already enclosed a check to you minus the reduced items. I await your
0
19 agreement with my proposed solution." (May 11, 2018)
20 21. Defendant, on May 20, 2018, with regard to Variance Application, stated: "We continue to
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see this as a completely uphill battle on your part." Plaintiff replied: "I urge you to cooperate, and reject
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your ad hoc assertion that the Variance is 'a completely uphill battle on your part.'"
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22. On June 12, 2018, Defendant sent another billing statement to Plaintiff without resolving the
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issues raised by Plaintiff for Invoice 180430 and the Unsolicited Memorandum. Defendant negotiated
Plaintiff s personal check (JJI 838) made to Defendant's order. On June 13, 2018, Plaintiff instructed
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Defendant to "refrain from engaging in any activity pursuant to our Legal Services Agreement bearing
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Plaintiffs First Amended Complaint for Damages
the date July 13, 2017 until [Piaintiffj reviewed the most recent charges and ...discussed each individual
task billed for."
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23. On June 22, 2018, Plaintiff addressed a second letter ("June Letter" ) to Defendant regarding
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the Attorney's Fees, Invoice 180531 of June 12, 2018, ($ 16,312.50). In the "June Letter," Plaintiff voiced
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concern regarding the "nature and duration of the billing", and reminded Defendant he had negotiated the
7 check without responding to Plaintiff's request to review the disputed line items.
24. Furthermore, in the "June Letter," Plaintiff requested information about the two, twenty-
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minute conversations Defendant billed for May 2018, where Defendant had initiated contact with: (I) SF
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Planning, and (2) Historic Consultant Firm Page & Turnbull.
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25. Defendant concealed facts from Plaintiff about the details of the mentioned two conversations
l3 that Defendant had billed Plaintiff for in Invoice 180531. Plaintiff in his "June Letter" states: "I greatly
'4 appreciate your understanding that budgetary considerations are universal. I am sure you are sensitive to
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accountability. Furthermore, there are two charges for which I require clarification before introducing
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triers of fact to assess further instances of interference: (I) On 5/16, there is a charge for 0.3 hrs regarding
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a telephone call with P&T about the HRD Report. Please explain the nature and content of your
19 communication with Page & Turnbull and with whom you spoke; (2) On 5/20, there is a charge for
0.3hrs regarding a telephone call to SF Planning about variance requirements and hardships arguments.
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Please explain the nature and content of your communication with SF Planning and with whom you
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spoke." The two mentioned communications had occurred after Defendants produced the May Memo,
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but before Plaintiff and Defendants'5/23/18 conference call with Page & Tumbull.
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25 26. Defendant thus failed to inform Plaintiff of significant developments in the matter. Plaintiff
had retained, and relied on Defendant, who owed a duty to inform Plaintiff of his communications with
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third parties. Such intentional conduct and concealment is a violation of Business and Professions Code
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Plaintiffs First Amended Complaint for Damages
F36068(m) [Failure to Inform Client of Significant Developments].
27. Plaintiff, in his "June Letter" to Defendant, notes that Defendant*s poor response time to
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Plaintiff s queries about obtaining neighbors'o Objections to his Variance Application was an
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indication of Defendant's inability to proffer legal services adequately: "Your response time, and hours
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billed, to write a simple cease-and-desist letter and to bring a section of the legal code
7 BPCIl8774(a)/CCPF2846.5 to my neighbors'ttention in requesting their cooperation has been
incommensurate with the amount of hours required for the task. You failed to inform me of the number
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ofhours you required, even after I repeatedly requested that of you. Recall that you had agreed to provide
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an estimate for the task before undertaking it." (June 22, 2018). Plaintiff further noted that Defendant
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could have more efficiently achieved the requested task to address simple Cease-and-Desist letters to
neighbors who actively organized to oppose the Variance through bad faith and mischaracterizations.
'4 Furthermore, Defendant failed to inform Plaintiff of the number of hours required although Defendant
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had promised to do so.
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28. After Plaintiff requested that neighbors grant access for land surveying of the topography of
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the Mid-Block Open Space (per Code Civ Proc tj846.5), Plaintiff asked Defendant address the neighbors
19 because of their mischaracterizations of the Variance Application. Even before the Legal Services
Retainer Agreement was executed, Plaintiff had noted the need IJul 13, 2017) to engage the neighbors.
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Plaintiff s subsequent email correspondences with Defendants regarding contact with neighbors occurred
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on more than twenty-two occasions between August 2017 and May 2018. Defendants billed 21.6 hours
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for discussions about -neighbors" but never contacted any of the neighbors. Plaintiffs correspondence of
2s May 11, 2018, and June 22, 2018 indicated Defendant did not disclose information and made omissions
as described herein.
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29. Plaintiff, in his "June Letter", also reminded Defendant of two recent instances where
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Plaintiffs First Amended Complaint for Damages
Defendant agreed that neighbors'No Objections" would increase the likelihood of getting the Variance.
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30. In sum, Defendant should have researched the case by reading the Variance Application in
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July 2017, at the beginning of the retention, and should have sought precedents through applications-on-
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file at SF Planning in order to draw parallels while engaging SF Planning staff. Previous to concocting
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the May Memo, Defendant would have needed to locate useful and applicable precedent cases.
7 31. Instead, Defendant tasked his associate to attend the August 2, 2017 Site-Visit (the "Site
Visit" ) and, in doing so, Defendant willfully neglected to make appropriate and suitable suggestions to
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reduce costs to Plaintiff. In concealing the fact that Plaintiff s property was not the only property in
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Block 5678 that has built-structures in its Rear Yard — in fact, four other parcels do — Defendant breached
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his fiduciary duty to Plaintiff.
13 32. Because of Defendant's poor preparation for the Site-Visit, SF Planning Staff was able to
'4 suggest postponing the September 27, 2017 Variance Hearing in order to evaluate the Rear Carriage
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Structure. That required hiring of the Historic Consultant Firm Page & Turnbull to undertake an HRD
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Supplemental Information Report, costing Plaintiff more than $ 16,000.
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33. Thereafter, Attorney's Fees escalated. Defendant did not contact neighbors as was needed.
19 34. Defendant could have reasonably avoided costs and fees by establishing at the Site-Visit that
Plaintiff s property already possesses such Hardship per SF Planning Code O'1305, and that strict
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application of the zoning law deprives the subject property of privileges enjoyed by other property in the
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same Block. Defendant should have argued that, based on the other properties in the same class of
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district, without a variance, Plaintiff would thus be prevented from utilizing his property to the same
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extent as other neighboring property owners under identical zoning classification.
26 35. Defendant failed "to review the current files" timely and "provide legal services," to
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specifically identify the issues with regard to the Variance Application. As a result of Defendant's failure
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Plaintiffs First Amended Complaint for Damages
to assert at the Site-Visit that the proposed addition was not in the Public Right-of-Way and make
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substantive and compelling arguments about the triggering of an Environmental Evaluation Application,
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Plaintiff s $ 16,000 cost would have been avoided. Defendants demonstrated unfamiliarity with SF
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Planning Dept. administrative processes at issue, and failed to competently "provide legal services."
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[Rules of Professional Conduct, Rule 3-110(A).
7 36. After Defendants were retained on July 13, 2017, even when the Legal Services Retainer
Agreement was explicit about Defendants'uties to "review the current files," Defendants charged legal
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fees in reviewing exchanges between Plaintiff and his consultants, and then unilaterally conveyed their
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conjecture and poorly conceived opinion in the May Memo. Defendants'rofessional negligence to
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timely fulfill its contractual duties constitutes a breach of contract and negligence. The Site-Visit was
undertaken on August 2, 2017, the May Memo not until nine months later. Defendant should have
'4 reviewed the case file in preparation for the Site-Visit, not afterwards. Such negligence has resulted in
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consequential damages to Plaintiff.
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37. Defendant further neglected to suggest sourcing legal documentation to substantiate the
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Variance Narrative's Hardship Criteria as provided by SF Planning Code I'3305(c)(1)(2), which requires
19 factual evidence of "exceptional or extraordinary circumstances applying to the property involved or to
the intended use of the property that do not apply generally to other property or uses in the same class of
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district." And, "[t]hat owing to such exceptional or extraordinary circumstances the literal enforcement of
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specified provisions of this Code would result in practical difficulty or unnecessary hardship not created
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by or attributable to the applicant or the owner of the property."
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25 38. SF Planning Code $ 305(c)(3) requires substantiation that "such variance is necessary for the
preservation and enjoyment of a substantial property right of the subject property, possessed by other
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property in the same class of district". Defendants overlooked the immediate parcels of Block 5678 to
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Plaintiffs First Amended Complaint for Damages
identify precedent for the Variance.
39. For that reason, Plaintiff, on Jan 20, 2018, sent an email to Defendant which Defendant billed
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for reading. In the email, Plaintiff identified sixty-six buildings possessing courtyards, many of which
4
have been designated as San Francisco Landmarks. Legal documentation on Designated Landmarks
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produced through the SF Planning Department and the Historic Preservation Commission identify and
7 document historic courtyards. Defendants neglected to use these to establish precedent for the age-
eligible courtyard.
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40. Defendant Hornstein briefly attended an Office Conference on January 25, 2018 that included
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Plaintiff s two (2) consultants. Before abandoning the discussion, Defendant assigned his duties to his
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associate.
13 41. During that Conference, Defendants agreed to contact neighbors and discuss with them their
'4 mischaracterizations of the Variance Application. However, Defendants failed to contact the neighbors
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who had been identified as engaging in bad faith and refusing access to Plaintiff s land surveyors for the
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topographical study of Block 5678 (pursuant to CCP I'1846.5), as promised.
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42. On May 3, 2018, without having acted to gain neighborhood support for the Variance
19 Application and access for the topographical survey, Defendant forwarded to Plaintiff the May Memo.
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43. Defendant in an email reply (May 8, 2018), after Plaintiff s enquiry, admitted he initiated
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contact with consultant-planner Jim Bergdoll, AICP while crafting the May Memo. Consultant-planner
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Jim Bergdoll, AICP was engaged in a bilateral third-party contract with Plaintiff. In fact, Defendant
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Hornstein stated; "I initiated that call to Jim in order to confirm and get his input on the hardship issue as
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25 we were drafting our memo. He had flagged this issue in some of his earlier emails (e.g., 4/23)."
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44. It was the first time Defendant Hornstein had informed Plaintiff of Defendant's contact with
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the third party after Plaintiff had demanded an explanation about the breach.
2s
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Plaintiffs First Amended Complaint for Damages
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45. Plaintiff, in a May 8, 2018, 12:19 PM email, had demanded: "Val and Matthew — Jim
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Bergdoll, AICP has just informed me that you had a conversation directly with him last week without my
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knowledge regarding my Variance Application. Please be advised that your Agreement Contract with me
4
is bilateral... Iand] although you are consulting and 'participating'ith other consultants that I have
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hired bilaterally, your contract is with me directly.... I should always be informed and advised of your
7 conversations and be allowed to participate in them. Please disclose the contents of your conversation
and divulge any and all information exchanged, including the memorandum or other documents...your
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skills as land-use attorneys can be lent to developing appropriate arguments based on the 'size'nd
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'location'f my property pursuant to California Government Code tj65906."
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46. Before Defendants began crafting the May Memo, Jim Bergdoll, AICP, ("Bergdoll") on Apr
13 23, 2018, summarized Plaintiff s request: "Additional hardship language from Val would be helpful. As
practicing real estate attorneys. they will be familiar with both local statutory law/Ordinances and
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Variance cases. as well as state Court rulings governing hardship or other related Variance requirements
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that will be helpful."
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47. Defendant had not informed Plaintiff about the 0.5 hour-conversation of May I, 2018 in
19 advance to include Plaintiff in the conversation. Bergdoll was not retained by Defendant, and the latter
owed defined contractual duties to Plaintiff and thus should have kept Plaintiff informed. Defendant
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Homstein did not have a separate contract with the third-party consultant ("Bergdoll").
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48. To produce the May Memo, Defendant contacted a consultant Plaintiff had hired, without
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Plaintiff s knowledge. Thus, by contacting a consultant under contract with Plaintiff to produce the May
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23 Memo without Plaintiff s knowledge, Defendant deliberately interfered in a third-party contract for
personal advantage. Defendant billed Plaintiff for the 33.6 hours Defendant spent producing the May
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Memo without obtaining the prior approval as he promised he would.
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Plaintiffs First Amended Complaint for Damages
1 49. Plaintiff s contract with the consultant ("Bergdoll") is a bilateral contract.
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50. Defendant's interactions with third parties regarding Plaintiff s Variance Application were
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conducted to the exclusion of Plaintiff s participation and without Plaintiff s knowledge.
4
51. Furthermore, Defendant failed to respond to Plaintiff's multiple inquiries in the weeks before
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producing the May Memo. Defendant failed to communicate with Plaintiff to give Plaintiff status
7 updates.
52. During the time Defendant was engaged producing the May Memo, Defendant concealed
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material facts from Plaintiff by not informing Plaintiff that Defendant was engaged producing the May
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Memo, an exercise which required his office 33.6 hours of time. Such intentional conduct and
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Plaintiff concealment is a violation of Business and Professions Code I16106.
13 53. ha expected what constitutes "Hardship" to have been discovered during the
50+hours that Defendant, a real estate and land-use attorney, had spent before producing the May Memo.
13
The Legal Services Retainer Agreement contract of July 2017 is specific to *'Variance Application
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¹2015-008499VAR", so Plaintiff expected Defendant to possess facility with the legal issues relevant to
17
obtaining a variance from a city planning department.
19 54. In fact, Plaintiff, in his "June Letter" to Defendant (June 22, 2017) stated:
20 "I should not have to convince you of the merits of the arguments for the Hardship Criteria
21
especially since you have become familiar with them during the 50+hrs of you proffering legal services. I
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consider the unsolicited memorandum [May Memo] of 3 May 2018 a waste of my resources especially
23
since we have known SF Planning Staff s position since the Site-Visit of 2 Aug 2017 and their [planner
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Durandet] prior email from 30 June 2017 (forwarded on: Thu, Jul 13, 2017 at 7:33 PM). A standard of
care expert will find that the 50+hrs of legal services could have been spent more efficiently, especially
27
in light of counsel's approach to the unsolicited 3 May 2018 memorandum. For example, the expert
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Plaintiffs First Amended Complaint for Damages
would likely cite SFPC)136(c)(2)(3)(14) with regards to protrusions into open spaces."
2
Plaintiff, in his "June Letter," noted to Defendant that in drafting the May Memo and expending
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33.6 hours (roughly $ 13,000) of Plaintiff's retainer funds without Plaintiff's express knowledge and
4
consent, Defendant exercised indiscretion, poor judgment, forcibility, and coercion.
5
55. Plaintiff, in his "June Letter" to Defendant (June 22, 2017), also cited that Defendant*s
7 knowledge of Hardship Criteria for the Variance pursuant to SF Planning Code t]305 did not include the
term "obvious,'* and Defendant, in the course of ten (10) months under retention, had failed to adequately
9
research and formulate legal arguments based on the circumstances of the subject property to justify that
10
it qualified for that Hardship:
Il
"I previously addressed the unsolicited memorandum [May Memo] (4 May 2018) and
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13 evidenced that the 'obvious hardship'equired a better understanding of the context of my
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property vis-a-vis other properties in the same class of district. In order to be able to identify
15
the substantial property rights of the subject property, and before identifying appropriate case
16
law, it is incumbent upon legal counsel to be adequately familiar with that context before
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assessing the Variance Application as an 'uphill battle'. The unsolicited memorandum [May
19 Memo] does not assist in 'knowing what types of situations do and not do meet those
20 [hardship] requirements'Wed, May 9, 2018 at 12:43 PM) because it primarily seeks answers
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from outside the context of the subject property."
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56. Defendant, on Fri, May 4, 2018 at 4:20 PM, after having produced the May Memo and in
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reply to Plaintiff s concerns about its usefulness, stated: "I bear the responsibility for all of our work and
24
reports. We will review this early next week and address your concerns." Despite his pledge, Defendant
Hornstein never reviewed the billing for the May Memo, nor did Defendant consider its usefulness based
27
on Plaintiff s numerous requests.
28
15
Plaintiffs First Amended Complaint for Damages
1
57. Defendant took part in extra-contractual activities by initiating contact with a third-party
consultant ("Bergdoll'*) under contract directly with Plaintiff without the express knowledge of Plaintiff
3
and engaged in interference in that third-party contract for the purpose of producing the May Memo
4
(-$ 13,000; 33.6 hours). Such an undertaking reflects that Defendant failed to identify suitable Hardship
5
Criteria requested by Plaintiff, and thus, failed to perform legal services with competence pursuant to the
7 July 2017 Legal Services Retainer Agreement Contract.
58. Defendant, despite stating in the July 13, 2017 Legal Services Retainer Agreement (p. 2/3): "It
9
is our responsibility to learn the law that applies to your facts, request further information and documents
10
if needed, and communicate with you on our findings," failed to timely identify the applicable law and
ll
relevant legal issues, and to render legal services based on that knowledge. The May Memo was
13 produced ten (10) months after the Legal Services Agreement was executed. The appropriate standard of
'4 care would have been to inform Plaintiff of legal research rather than conceal facts, especially after the
13
August 2, 2017 Site-Visit. Defendant should have been able to thwart SF Planning staff s June 30, 2017
16
postulations about the significance attributed to the Rea
Preview
Kevin M. Sullivan (SBN: 124523) Law Offices of Kevin M. Sullivan 3 490 Post St, Suite 452 ELECTRONICALLY San Francisco, CA 94102 3 (415) 860-2170 F I L E D Superior Court of California, County of San Francisco 4 Attorneys for Plaintiff Maher Memarzadeh 12/18/2019 Clerk of the Court BY: BOWMAN LIU SUPERIOR COURT OF THE STATE OF CALIFORNIA Deputy Clerk IN AND FOR THE COUNTY OF SAN FRANCISCO an individual, Case No.: CGC-19-574738 MAHER MEMARZADEH, Plaintiffs'irst Amended Complaint For Damages 9 Plaintiff, 10 1.Negligence (Legal Malpractice); And V. 2. Breach Of Fiduciary Duty ll 3. Fraud (Intentional Misrepresentation) 4. Fraud (Fraudulent Concealment) VAL DAWSON HORNSTEIN, an individual; 5. Breach Of Contract HORNSTEIN LAW OFFICES, 6. Breach Of Implied Covenant Of Good Faith And 13 PROFESSIONAL CORPORATION Fair Dealing (C2626906); and DOES 1-50, inclusive, 7. Tortious Interference 14 Infliction Of Emotional Distress 8. Intentional 18 Defendants. DEMAND FOR JURY TRIAL 16 17 Plaintiff Maher Memarzadeh, (" PLAINTIFF" ), hereby alleges as follows: 18 19 GENERAL ALLEGATIONS 20 1. Plaintiff is, and at all relevant times was, an individual residing in the County of Los Angeles, 21 State of California. 22 2. Defendants Val Dawson Hornstein An Individual, and Hornstein Law Offices, ("Hornstein", or 23 "Defendants" ) are, on information and belief: (a) residents of the County of Marin; (b) is practicing law 24 in San Francisco; and (c) since June 16, 1988 is an active Member of The State Bar of California, Bar 26 Number 133726 with a California Lawyers Association (CLA) Section in Business Law. 27 3. On information and belief, Val D. Homstein is, at all times relevant herein, the President and 28 1 Plaintiffs First Amended Complaint for Damages the Secretary of Hornstein Law Offices, Professional Corporation, an active law firm organized under the 2 laws of the State of California, operating from its offices in Marin County, California located at 1000 3 Fourth Street, Suite 750, San Rafael, CA 94901. 4 4. On information and belief, Hornstein Law Offices is incorporated under the laws of the State of 5 California as California Corporate Entity Number C2626906 with registration date of 07/12/2004 with 7 mailing address at PO Box 151602 San Rafael, San Rafael, CA 94915. Defendant Hornstein uses conference rooms at 275 Battery Street, 16ta Floor, San Francisco, CA 94111, where he also accepts 9 payments for his legal services, and led Plaintiff to believe that his law practice is in the City and County to of San Francisco, and by implication is familiar with San Francisco Local Law. Defendant Hornstein lists Il 12 his address on The State Bar website, billing statements, and on his Retainer Agreement as 275 Battery 13 Street, 164 Floor in San Francisco. 14 5. The true names and capacities, whether individual, corporate, associate or otherwise, of 16 Defendants DOES 1 through 50, inclusive, are unknown to Plaintiff, who therefore sues those Defendants 16 by such fictitious names and will ask leave of Court to amend this Complaint to show the true names and 17 capacities when the same have been ascertained. Plaintiff is informed and believes and based thereon 19 alleges, that each of the fictitiously named Defendants designated herein as a DOE is in some manner legally liable to Plaintiff by reason of the allegations contained herein. 21 6. Plaintiff is informed and believes and, based thereon alleges, that each Defendant, including 22 DOES 1 through 50, was and is the agent, servant, employee, partner, or joint venturer of each other 23 Defendant, and that each Defendant was acting within the course and scope of such agency, employment, 24 partnership or joint venture, and with the consent or the ratification of each other in doing the things alleged here. // 2S Plaintiffs First Amended Complaint for Damages 1 FACTS COMMON TO ALL CAUSES OF ACTION 7. On Wednesday, June 21, 2017 at 2:00 pm, the San Francisco Bar Association Lawyer Referral 3 Service scheduled a telephone appointment for Plaintiff to retain Defendant who represented himself as a 4 land use attorney, "for a land-use matter, specifically a Rear- Yard Variance to except an addition for 3 [Plaintiff's] property in Bernal Heights (408-412 Cortland Avenue)." In the meeting with Defendant, 7 Plaintiff disclosed to him that the San Francisco Planning Dept. had set a September 27, 2017 Variance Hearing for SF Planning App. No. 2015-008499VAR (the "Variance Application" ) to be heard. Plaintiff 9 also related the following requirements, among others, to Defendant: "possible environmental review 10 with regards to CEQA" and '*addressing neighbors'ueries regarding the SF Planning Code and owner 11 entitlements for property improvement." 13 8. On July 13, 2017, Defendant provided Plaintiff with a Legal Services Agreement which stated '4 as part of the Scope of Services: Defendant was "to review the current files" and "provide legal services" ts for "the Property's Variance Application 2015-008499VAR (for variance request to the rear yard 16 requirement to permit the second story addition of approximately 27 ft. x 25 ft. on top of the existing one- 17 s t o r y p o r t i o n o f t h e bu i 1 d i n g a t t h e r ea r I o t I i n e fo r t h e p u r p o s e o f p ro v i d i n g a d d i t i on a I p e r m i t t e d 0 19 neighborhood-serving retail uses) now pending with the San Francisco Planning Department." 20 9. On May 11, 2018, Plaintiff wrote Defendant demanding that Defendant provide Plaintiff with 21 status updates about what he was doing with regard to their Legal Services Agreement of July 13, 2017 in 22 light of Plaintiff s express requests for information about estimates of hours on different occasions. 23 10. Plaintiff's May 2018 letter cites emails from April 9, 2018 through May 11, 2018 requesting 24 from Defendant estimates of hours, assignments Defendant was working on, and the status of the Variance Hardship Criteria pursuant to SF Planning Code I2305. 27 11. Plaintiff s reasonable status inquiries include, but are not limited to, the following: 28 3 Plaintiffs First Amended Complaint for Damages l a. Plaintiff expressly authorizes Defendants two (2) hours and, significantly, cites Attorney's Fees 2 as a concern: "Since that argument would be crafted by you, the attorney, in order to obtain a CatEx 3 stamp and reduce incurrence of further costs for your client, I will authorize a couple of hours to research 4 and articulate the argument." 3 b. Plaintiff requests from Defendants an estimate of hours to locate suitable Hardship Arguments 7 pursuant to SF Planning Code I'1305:"Please estimate the number of hours you require to locate appropriate hardship arguments per my request: "(D) Strengthen 'Hardship arguments': minimum criteria 9 for hardship in a unique case like this'." 10 c. Plaintiff requests that the consultant-planner explain exactly what is required from Defendant 11 with respect to suitable Hardship Arguments: "While we await an estimate from Val and Matthew, as 13 well, would you please clarify what you mean by 'their experience with SF Zoning law'? (Apr 12, 2018 '4 at 10:21 AM)'* 13 d. Plaintiff expresses recurring billing concerns about Defendant spending unauthorized hours: "I 16 trust you would not be spending unauthorized hours." 17 18 12. Plaintiff, while the Legal Services Retainer Agreement was being negotiated, had expressed l9 concerns regarding Defendant providing "not-to-exceed hourly estimates for each task" that Plaintiff had enumerated for SF Planning App. No. 2015-008499VAR. Although Defendant was aware of Plaintiff s 21 need to budget Attorney*s Fees, Defendant did not begin to review the case file to provide an estimate of 22 hours for tasks as Plaintiff had requested. In fact, Defendant did not "review the current files," nor did 23 Defendant "learn the law that applies*'o facts relevant for obtaining the Variance, nor did Defendant 24 "request further information*'r documents to inform and "communicate" his findings to Plaintiff. Not until nine months after being retained did Defendant engage in his contractual duties. At the beginning of 27 the relationship, Defendant stated: "The [Agreement Terms] Isent you are as specific as I can be at this 28 Plaintiffs First Amended Complaint for Damages time because I have not reviewed the entire case file yet so there is no possible way to estimate time for various aspects, or even what those aspects might be." Defendant could have reasonably reviewed the 3 case file within the first few months of being retained by Plaintiff. 4 13. Between April 25, 2018 and May 4, 2018, when Defendants were drafting an unsolicited 5 memorandum, they failed to respond to Plaintiff. Defendant made NO attempts to contact Plaintiff to advise him what Defendants were doing with respect to locating suitable Hardship Arguments: no correspondence was sent from Defendants to Plaintiff. Defendants repeatedly failed to respond to 9 Plaintiff even though they were legally obligated to "respond promptly to reasonable status inquiries of 10 clients and to keep clients reasonably informed of significant developments in matters with regard to ll which the attorney has agreed to provide legal services." [Bus & Prof Code II6068(m)] 13 14. When Defendant replied to Plaintiff on May 3, 2018, Defendant enclosed a lengthy 13-page '4 unsolicited memorandum ("May Memo" ) that was neither requested nor required by Plaintiff, but which 15 Defendant charged Plaintiff over thirty hours time. Defendant specified the Memorandum to be l6 regarding: "Review of Page & Turnbull's Report for Historic Resource Determination and Analysis of 17 Variance Requirements and Hardship Arguments." The May Memo was unsolicited by Plaintiff and 19 unnecessary. Defendant billed 33.6 hours to prepare it without Plaintiff s knowledge or consent. 20 16. Plaintiff, upon receiving the May Memo, immediately questioned its need. Plaintiff noted the 21 hours Defendant had spent up to that moment in proffering legal services pursuant to July 2017 Legal 22 Services Agreement and disputed the usefulness and the cost of the May Memo. Plaintiff demanded that 23 his query be undertaken with an estimate of hours as Plaintiff had initially requested: "Please state clearly 24 how the memorandum you prepared is helpful or useful. I am disputing the usefulness of (and costs associated with) this memorandum and demand that the abovementioned be undertaken, with an estimate 27 of hours, this time, ASAP, instead. Please recall that I requested an estimate of hours on several 2 it 5 PlaintiffsFirst Amended Compiaint for Damages occasions [between Apr 9, 2018 and Wed, Apr 25, 2018]... I authorized 2hrs to research and articulate 2 the argument for the connected basement between 410-12 and 408 to establish that the two buildings 3 technically constitute one structure such that 408 should not be considered a detached structure when 4 analyzing the massing issue. Thus far, I have spent $ 21,737.80 with Hornstein Law and you have 3 proffered 41.2 hours of legal services, so I expect that our labours be useful for my Variance to be granted." Defendant failed to directly provide a substantive reply to Plaintiff s query. 17. Between May 8, 2018 and May 10, 2018, Plaintiff again requested Defendant review 9 Plaintiff s billing concerns as well as the May Memo. Plaintiff reminded Defendant of the money he had 10 spent on Defendants, in the "unlimited jurisdiction situation," and requested they provide hour estimates ll for tasks: "As mentioned previously, I would like there not to be any redundancy in your activity, 13 research or otherwise. So, please disclose your tasks to me before engaging in them and estimate the '4 hours that each individual task will require. This way I will not have to dispute any billing items again. ts Will drafting the attorney letters to neighbors require more than one (I) hour of your time? Please 16 forward drafts to me for my review before sending", "Please reduce the billed hours from 4/24 - 4/30 to 17 two (2) hours and as requested earlier, 'please disclose your tasks to me before engaging in them and 19 estimate the hours that each individual task will require. This way I will not have to dispute any billing items again "Regarding billing, please be advised that on Wed, May 9, 2018 at 5:01 PM I requested: 21 'Will drafting the attorney letters to neighbors require more than one (I) hour of your time? Please 22 forward drafts to me for my review before sending.'" 23 18. Defendants, on May 10, 2018, agreed and promised to do so: "We'l give you an estimate up 24 front and send drafts to you." 26 19. On May 10, 2018 at 9:12 AM, Plaintiff requested of Defendant to review individual line items 27 of Invoice 180430 ($ 7,502.50). Plaintiff expressed concern that legal services for the land-use matter 28 6 Plaintiffs First Amended Complaint for Damages were not performed with the required standard of care and not reflective of the facility that a land-use 2 attorney would possess: "Please review the individual line items of the attached bill. I am concerned 3 about the redundancy in billing especially since Matthew Harrison has been billing against the Page and 4 Turnbull HRD Report when the report largely contains no more than 14 pages of text. Furthermore, his 5 18.9 hours of billing produced a memorandum that I disputed on Fri, May 4, 2018 at 3:32 PM but the 7 18.9 hours do not reflect a land-use attorney's facility with the issues that a Variance entails, nor the accumulated knowledge gathered from the case. Recall that I have spent $ 21,737.80 with Hornstein Law 9 and you have proffered 41.2 hours of legal services, so the fluency of the land-use attorney should be 10 greater than displayed. I greatly appreciate your line-by-line review of the current billing statement ll bearing the date 4 May 2018 (INVOICE NO. MEMA180430) and I trust you will reference previous 13 billing statements line by line to be able to resolve this billing issue. I trust you won't bill me for reviewing the invoice(s).*'May 10, 2018) 15 20. Defendant failed to reply to Plaintiff s subsequent requests to resolve the billing issue when 16 Plaintiff had stated: "I proposed a solution to the disputed items already in my email to you from Wed, 17 May 9, 20 I 8 at 9:00 PM. I have already enclosed a check to you minus the reduced items. I await your 0 19 agreement with my proposed solution." (May 11, 2018) 20 21. Defendant, on May 20, 2018, with regard to Variance Application, stated: "We continue to 21 see this as a completely uphill battle on your part." Plaintiff replied: "I urge you to cooperate, and reject 22 your ad hoc assertion that the Variance is 'a completely uphill battle on your part.'" 23 22. On June 12, 2018, Defendant sent another billing statement to Plaintiff without resolving the 24 issues raised by Plaintiff for Invoice 180430 and the Unsolicited Memorandum. Defendant negotiated Plaintiff s personal check (JJI 838) made to Defendant's order. On June 13, 2018, Plaintiff instructed 27 Defendant to "refrain from engaging in any activity pursuant to our Legal Services Agreement bearing 28 7 Plaintiffs First Amended Complaint for Damages the date July 13, 2017 until [Piaintiffj reviewed the most recent charges and ...discussed each individual task billed for." 3 23. On June 22, 2018, Plaintiff addressed a second letter ("June Letter" ) to Defendant regarding 4 the Attorney's Fees, Invoice 180531 of June 12, 2018, ($ 16,312.50). In the "June Letter," Plaintiff voiced 5 concern regarding the "nature and duration of the billing", and reminded Defendant he had negotiated the 7 check without responding to Plaintiff's request to review the disputed line items. 24. Furthermore, in the "June Letter," Plaintiff requested information about the two, twenty- 9 minute conversations Defendant billed for May 2018, where Defendant had initiated contact with: (I) SF 10 Planning, and (2) Historic Consultant Firm Page & Turnbull. ll 12 25. Defendant concealed facts from Plaintiff about the details of the mentioned two conversations l3 that Defendant had billed Plaintiff for in Invoice 180531. Plaintiff in his "June Letter" states: "I greatly '4 appreciate your understanding that budgetary considerations are universal. I am sure you are sensitive to 15 accountability. Furthermore, there are two charges for which I require clarification before introducing 16 triers of fact to assess further instances of interference: (I) On 5/16, there is a charge for 0.3 hrs regarding 17 a telephone call with P&T about the HRD Report. Please explain the nature and content of your 19 communication with Page & Turnbull and with whom you spoke; (2) On 5/20, there is a charge for 0.3hrs regarding a telephone call to SF Planning about variance requirements and hardships arguments. 21 Please explain the nature and content of your communication with SF Planning and with whom you 22 spoke." The two mentioned communications had occurred after Defendants produced the May Memo, 23 but before Plaintiff and Defendants'5/23/18 conference call with Page & Tumbull. 24 25 26. Defendant thus failed to inform Plaintiff of significant developments in the matter. Plaintiff had retained, and relied on Defendant, who owed a duty to inform Plaintiff of his communications with 27 third parties. Such intentional conduct and concealment is a violation of Business and Professions Code 28 Plaintiffs First Amended Complaint for Damages F36068(m) [Failure to Inform Client of Significant Developments]. 27. Plaintiff, in his "June Letter" to Defendant, notes that Defendant*s poor response time to 3 Plaintiff s queries about obtaining neighbors'o Objections to his Variance Application was an 4 indication of Defendant's inability to proffer legal services adequately: "Your response time, and hours 3 billed, to write a simple cease-and-desist letter and to bring a section of the legal code 7 BPCIl8774(a)/CCPF2846.5 to my neighbors'ttention in requesting their cooperation has been incommensurate with the amount of hours required for the task. You failed to inform me of the number 9 ofhours you required, even after I repeatedly requested that of you. Recall that you had agreed to provide IO an estimate for the task before undertaking it." (June 22, 2018). Plaintiff further noted that Defendant II could have more efficiently achieved the requested task to address simple Cease-and-Desist letters to neighbors who actively organized to oppose the Variance through bad faith and mischaracterizations. '4 Furthermore, Defendant failed to inform Plaintiff of the number of hours required although Defendant 15 had promised to do so. 16 28. After Plaintiff requested that neighbors grant access for land surveying of the topography of 17 the Mid-Block Open Space (per Code Civ Proc tj846.5), Plaintiff asked Defendant address the neighbors 19 because of their mischaracterizations of the Variance Application. Even before the Legal Services Retainer Agreement was executed, Plaintiff had noted the need IJul 13, 2017) to engage the neighbors. 21 Plaintiff s subsequent email correspondences with Defendants regarding contact with neighbors occurred 22 on more than twenty-two occasions between August 2017 and May 2018. Defendants billed 21.6 hours 23 24 for discussions about -neighbors" but never contacted any of the neighbors. Plaintiffs correspondence of 2s May 11, 2018, and June 22, 2018 indicated Defendant did not disclose information and made omissions as described herein. 27 29. Plaintiff, in his "June Letter", also reminded Defendant of two recent instances where 28 Plaintiffs First Amended Complaint for Damages Defendant agreed that neighbors'No Objections" would increase the likelihood of getting the Variance. 2 30. In sum, Defendant should have researched the case by reading the Variance Application in 3 July 2017, at the beginning of the retention, and should have sought precedents through applications-on- 4 file at SF Planning in order to draw parallels while engaging SF Planning staff. Previous to concocting 6 the May Memo, Defendant would have needed to locate useful and applicable precedent cases. 7 31. Instead, Defendant tasked his associate to attend the August 2, 2017 Site-Visit (the "Site Visit" ) and, in doing so, Defendant willfully neglected to make appropriate and suitable suggestions to 9 reduce costs to Plaintiff. In concealing the fact that Plaintiff s property was not the only property in 10 Block 5678 that has built-structures in its Rear Yard — in fact, four other parcels do — Defendant breached ll his fiduciary duty to Plaintiff. 13 32. Because of Defendant's poor preparation for the Site-Visit, SF Planning Staff was able to '4 suggest postponing the September 27, 2017 Variance Hearing in order to evaluate the Rear Carriage ts Structure. That required hiring of the Historic Consultant Firm Page & Turnbull to undertake an HRD 16 Supplemental Information Report, costing Plaintiff more than $ 16,000. 17 18 33. Thereafter, Attorney's Fees escalated. Defendant did not contact neighbors as was needed. 19 34. Defendant could have reasonably avoided costs and fees by establishing at the Site-Visit that Plaintiff s property already possesses such Hardship per SF Planning Code O'1305, and that strict 21 application of the zoning law deprives the subject property of privileges enjoyed by other property in the 22 same Block. Defendant should have argued that, based on the other properties in the same class of 23 district, without a variance, Plaintiff would thus be prevented from utilizing his property to the same 24 extent as other neighboring property owners under identical zoning classification. 26 35. Defendant failed "to review the current files" timely and "provide legal services," to 27 specifically identify the issues with regard to the Variance Application. As a result of Defendant's failure 28 10 Plaintiffs First Amended Complaint for Damages to assert at the Site-Visit that the proposed addition was not in the Public Right-of-Way and make 2 substantive and compelling arguments about the triggering of an Environmental Evaluation Application, 3 Plaintiff s $ 16,000 cost would have been avoided. Defendants demonstrated unfamiliarity with SF 4 Planning Dept. administrative processes at issue, and failed to competently "provide legal services." 5 [Rules of Professional Conduct, Rule 3-110(A). 7 36. After Defendants were retained on July 13, 2017, even when the Legal Services Retainer Agreement was explicit about Defendants'uties to "review the current files," Defendants charged legal 9 fees in reviewing exchanges between Plaintiff and his consultants, and then unilaterally conveyed their 10 conjecture and poorly conceived opinion in the May Memo. Defendants'rofessional negligence to II timely fulfill its contractual duties constitutes a breach of contract and negligence. The Site-Visit was undertaken on August 2, 2017, the May Memo not until nine months later. Defendant should have '4 reviewed the case file in preparation for the Site-Visit, not afterwards. Such negligence has resulted in 15 consequential damages to Plaintiff. 16 37. Defendant further neglected to suggest sourcing legal documentation to substantiate the 17 Variance Narrative's Hardship Criteria as provided by SF Planning Code I'3305(c)(1)(2), which requires 19 factual evidence of "exceptional or extraordinary circumstances applying to the property involved or to the intended use of the property that do not apply generally to other property or uses in the same class of 21 district." And, "[t]hat owing to such exceptional or extraordinary circumstances the literal enforcement of 22 specified provisions of this Code would result in practical difficulty or unnecessary hardship not created 23 by or attributable to the applicant or the owner of the property." 24 25 38. SF Planning Code $ 305(c)(3) requires substantiation that "such variance is necessary for the preservation and enjoyment of a substantial property right of the subject property, possessed by other 27 property in the same class of district". Defendants overlooked the immediate parcels of Block 5678 to 28 il Plaintiffs First Amended Complaint for Damages identify precedent for the Variance. 39. For that reason, Plaintiff, on Jan 20, 2018, sent an email to Defendant which Defendant billed 3 for reading. In the email, Plaintiff identified sixty-six buildings possessing courtyards, many of which 4 have been designated as San Francisco Landmarks. Legal documentation on Designated Landmarks 5 produced through the SF Planning Department and the Historic Preservation Commission identify and 7 document historic courtyards. Defendants neglected to use these to establish precedent for the age- eligible courtyard. 9 40. Defendant Hornstein briefly attended an Office Conference on January 25, 2018 that included 10 Plaintiff s two (2) consultants. Before abandoning the discussion, Defendant assigned his duties to his 11 associate. 13 41. During that Conference, Defendants agreed to contact neighbors and discuss with them their '4 mischaracterizations of the Variance Application. However, Defendants failed to contact the neighbors 15 who had been identified as engaging in bad faith and refusing access to Plaintiff s land surveyors for the 16 topographical study of Block 5678 (pursuant to CCP I'1846.5), as promised. 17 42. On May 3, 2018, without having acted to gain neighborhood support for the Variance 19 Application and access for the topographical survey, Defendant forwarded to Plaintiff the May Memo. 20 43. Defendant in an email reply (May 8, 2018), after Plaintiff s enquiry, admitted he initiated 21 contact with consultant-planner Jim Bergdoll, AICP while crafting the May Memo. Consultant-planner 22 Jim Bergdoll, AICP was engaged in a bilateral third-party contract with Plaintiff. In fact, Defendant 23 Hornstein stated; "I initiated that call to Jim in order to confirm and get his input on the hardship issue as 34 25 we were drafting our memo. He had flagged this issue in some of his earlier emails (e.g., 4/23)." 26 44. It was the first time Defendant Hornstein had informed Plaintiff of Defendant's contact with 27 the third party after Plaintiff had demanded an explanation about the breach. 2s 12 Plaintiffs First Amended Complaint for Damages 1 45. Plaintiff, in a May 8, 2018, 12:19 PM email, had demanded: "Val and Matthew — Jim 2 Bergdoll, AICP has just informed me that you had a conversation directly with him last week without my 3 knowledge regarding my Variance Application. Please be advised that your Agreement Contract with me 4 is bilateral... Iand] although you are consulting and 'participating'ith other consultants that I have 3 hired bilaterally, your contract is with me directly.... I should always be informed and advised of your 7 conversations and be allowed to participate in them. Please disclose the contents of your conversation and divulge any and all information exchanged, including the memorandum or other documents...your 9 skills as land-use attorneys can be lent to developing appropriate arguments based on the 'size'nd 10 'location'f my property pursuant to California Government Code tj65906." 11 46. Before Defendants began crafting the May Memo, Jim Bergdoll, AICP, ("Bergdoll") on Apr 13 23, 2018, summarized Plaintiff s request: "Additional hardship language from Val would be helpful. As practicing real estate attorneys. they will be familiar with both local statutory law/Ordinances and ts Variance cases. as well as state Court rulings governing hardship or other related Variance requirements 16 that will be helpful." 17 18 47. Defendant had not informed Plaintiff about the 0.5 hour-conversation of May I, 2018 in 19 advance to include Plaintiff in the conversation. Bergdoll was not retained by Defendant, and the latter owed defined contractual duties to Plaintiff and thus should have kept Plaintiff informed. Defendant 21 Homstein did not have a separate contract with the third-party consultant ("Bergdoll"). 22 48. To produce the May Memo, Defendant contacted a consultant Plaintiff had hired, without 23 Plaintiff s knowledge. Thus, by contacting a consultant under contract with Plaintiff to produce the May 24 23 Memo without Plaintiff s knowledge, Defendant deliberately interfered in a third-party contract for personal advantage. Defendant billed Plaintiff for the 33.6 hours Defendant spent producing the May 27 Memo without obtaining the prior approval as he promised he would. 2S 13 Plaintiffs First Amended Complaint for Damages 1 49. Plaintiff s contract with the consultant ("Bergdoll") is a bilateral contract. 2 50. Defendant's interactions with third parties regarding Plaintiff s Variance Application were 3 conducted to the exclusion of Plaintiff s participation and without Plaintiff s knowledge. 4 51. Furthermore, Defendant failed to respond to Plaintiff's multiple inquiries in the weeks before 3 producing the May Memo. Defendant failed to communicate with Plaintiff to give Plaintiff status 7 updates. 52. During the time Defendant was engaged producing the May Memo, Defendant concealed 9 material facts from Plaintiff by not informing Plaintiff that Defendant was engaged producing the May 10 Memo, an exercise which required his office 33.6 hours of time. Such intentional conduct and ll Plaintiff concealment is a violation of Business and Professions Code I16106. 13 53. ha expected what constitutes "Hardship" to have been discovered during the 50+hours that Defendant, a real estate and land-use attorney, had spent before producing the May Memo. 13 The Legal Services Retainer Agreement contract of July 2017 is specific to *'Variance Application 16 ¹2015-008499VAR", so Plaintiff expected Defendant to possess facility with the legal issues relevant to 17 obtaining a variance from a city planning department. 19 54. In fact, Plaintiff, in his "June Letter" to Defendant (June 22, 2017) stated: 20 "I should not have to convince you of the merits of the arguments for the Hardship Criteria 21 especially since you have become familiar with them during the 50+hrs of you proffering legal services. I 22 consider the unsolicited memorandum [May Memo] of 3 May 2018 a waste of my resources especially 23 since we have known SF Planning Staff s position since the Site-Visit of 2 Aug 2017 and their [planner 24 Durandet] prior email from 30 June 2017 (forwarded on: Thu, Jul 13, 2017 at 7:33 PM). A standard of care expert will find that the 50+hrs of legal services could have been spent more efficiently, especially 27 in light of counsel's approach to the unsolicited 3 May 2018 memorandum. For example, the expert 2S 14 Plaintiffs First Amended Complaint for Damages would likely cite SFPC)136(c)(2)(3)(14) with regards to protrusions into open spaces." 2 Plaintiff, in his "June Letter," noted to Defendant that in drafting the May Memo and expending 3 33.6 hours (roughly $ 13,000) of Plaintiff's retainer funds without Plaintiff's express knowledge and 4 consent, Defendant exercised indiscretion, poor judgment, forcibility, and coercion. 5 55. Plaintiff, in his "June Letter" to Defendant (June 22, 2017), also cited that Defendant*s 7 knowledge of Hardship Criteria for the Variance pursuant to SF Planning Code t]305 did not include the term "obvious,'* and Defendant, in the course of ten (10) months under retention, had failed to adequately 9 research and formulate legal arguments based on the circumstances of the subject property to justify that 10 it qualified for that Hardship: Il "I previously addressed the unsolicited memorandum [May Memo] (4 May 2018) and 12 13 evidenced that the 'obvious hardship'equired a better understanding of the context of my 14 property vis-a-vis other properties in the same class of district. In order to be able to identify 15 the substantial property rights of the subject property, and before identifying appropriate case 16 law, it is incumbent upon legal counsel to be adequately familiar with that context before 17 18 assessing the Variance Application as an 'uphill battle'. The unsolicited memorandum [May 19 Memo] does not assist in 'knowing what types of situations do and not do meet those 20 [hardship] requirements'Wed, May 9, 2018 at 12:43 PM) because it primarily seeks answers 21 from outside the context of the subject property." 22 56. Defendant, on Fri, May 4, 2018 at 4:20 PM, after having produced the May Memo and in 23 reply to Plaintiff s concerns about its usefulness, stated: "I bear the responsibility for all of our work and 24 reports. We will review this early next week and address your concerns." Despite his pledge, Defendant Hornstein never reviewed the billing for the May Memo, nor did Defendant consider its usefulness based 27 on Plaintiff s numerous requests. 28 15 Plaintiffs First Amended Complaint for Damages 1 57. Defendant took part in extra-contractual activities by initiating contact with a third-party consultant ("Bergdoll'*) under contract directly with Plaintiff without the express knowledge of Plaintiff 3 and engaged in interference in that third-party contract for the purpose of producing the May Memo 4 (-$ 13,000; 33.6 hours). Such an undertaking reflects that Defendant failed to identify suitable Hardship 5 Criteria requested by Plaintiff, and thus, failed to perform legal services with competence pursuant to the 7 July 2017 Legal Services Retainer Agreement Contract. 58. Defendant, despite stating in the July 13, 2017 Legal Services Retainer Agreement (p. 2/3): "It 9 is our responsibility to learn the law that applies to your facts, request further information and documents 10 if needed, and communicate with you on our findings," failed to timely identify the applicable law and ll relevant legal issues, and to render legal services based on that knowledge. The May Memo was 13 produced ten (10) months after the Legal Services Agreement was executed. The appropriate standard of '4 care would have been to inform Plaintiff of legal research rather than conceal facts, especially after the 13 August 2, 2017 Site-Visit. Defendant should have been able to thwart SF Planning staff s June 30, 2017 16 postulations about the significance attributed to the Rea