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28
LONG & LEVIT LLP
463 CALIFORNIA STREET,
CALIFORNIA 94108
JOSEPH P. MCMONIGLE, Bar No. 66811
DAVID 8. MCMONIGLE, Bar No. 258980
LONG & LEVIT LLP
465 California Street, Suite 500
San Francisco, California 94104
Telephone: (415) 397-2222
Facsimile: (415) 397-6392
Email: jmemonigle@longlevit.com
dmemonigle@longlevit.com
Attorneys for Defendants
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
07/20/2018
Clerk of the Court
BY: ANNA TORRES
Deputy Clerk
PHILIP GREGORY and COTCHETT, PITRE &
MCCARTHY, LLP
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
MICHAEL DISANTO,
Plaintiff,
v.
COTCHETT, PITRE & MCCARTHY,
LLP, PHILIP GREGORY and DOES 1
through 10, inclusive,
Defendants.
Case No. CGC-18-566778
DECLARATION OF PHILIP GREGORY
IN SUPPORT OF MOTION OF
DEENDANTS TO COMPEL
ARBITRATION AND STAY
PROCEEDINGS
** REDACTED**
DATE: August 20, 2018
TIME: 9:30
DEPT: 302
RESERVATION NO. 07190820-11
Action Filed: May 24, 2018
PUBLIC — REDACTS MATERIALS FROM CONDITIONALLY SEALED RECORD
DOCS:867342.2
CASE NO. CGC-18-566778
DECLARATION OF PHILIP GREGORY IN SUPPORT OF MOTION OF DEFENDANTS TO COMPEL
ARBITRATION AND STAY PROCEEDINGSAk WN =
Ce NN
28
LONG & LEVIT LLP
465 CALIFORNIA STREET,
STH FLOOR
SAN FRANCISCO,
CALIFORNIA 96108
I, Philip Gregory, hereby declare as follows:
1. I am an attorney duly licensed to practice law in the State of California and am the
owner of the Gregory Law Group. I started working as an attorney at Cotchett, Pitre &
McCarthy, LLP (“CPM”) in March 2005 and remained a partner until February 1, 2018, when I
left CPM to start the Gregory Law Group. I am a defendant in this action and was previously
counsel for Plaintiff Michael DiSanto (“Mr. DiSanto”) in the arbitration that preceded this legal
malpractice action. I have personal knowledge of the facts stated herein and if called upon as a
witness, I could and would competently and completely testify to the truth of the statements
contained herein.
2. In December 2014, Mr. DiSanto retained CPM to represent his interests in
arbitration arising out of a breach of Mr. DiSanto’s employment relationship with Bingham
McCutchen LLP (“Bingham”). Mr. DiSanto and CPM executed a retainer agreement (the
“Retainer Agreement”) on December 8, 2014. Attached hereto as Exhibit 1 is a true and correct
copy of the Retainer Agreement dated December 8, 2014.
3. The instant litigation concerns a Second Amended Counterclaims brought on
March 15, 2016 by Bingham against Mr. DiSanto. [as
4, Prior to signing the Retainer Agreement, Mr. DiSanto informed me of the
following facts:
a. Onor about March 14, 2013, Mr. DiSanto had executed a Letter
Agreement with Bingham and joined the Bingham partnership.
b. The Letter Agreement was subject to and incorporated by reference
Bingham’s Articles of Partnership (the “Partnership Agreement”).
c. Inthe event of any inconsistency between the terms of the Bingham
Partnership Agreement and the Letter Agreement, the terms of the
Bingham Partnership Agrgement were to be controlling. The terms of the
DOCS:867342.2 CASE NO. CGC-18-566778
DECLARATION OF PHILIP GREGORY IN SUPPORT OF MOTION OF DEFENDANTS TO COMPEL
ARBITRATION AND STAY PROCEEDINGS28
LONG & LEVIT LLP
465 CALIFORNIA STREET,
S11 FLO
SAN FRANCISCO,
CALIFORNIA 94108
3.
DOCS:867342.2
_etter Agreement had been approved by a favorable vote of the Equity
Partners of Bingham under the Bingham Partnership Agreement.
. Subject to the Letter Agreement and the Bingham Partnership Agreement,
Bingham purported to guarantee Mr. DiSanto a certain salary and bonus
from the date he became a partner.
Shortly before Mr. DiSanto joined Bingham, he was serving as Chief
Operating Officer at Maker Studios, Inc. (“Maker”) and it was understood
that Mr. DiSanto would receive, but had not yet received, an increase of his
equity interest in Maker. es
WEE [n) order to become a partner at Bingham, Mr. DiSanto had to
resign his position as Chief Operating Officer at Maker. iy
. Mr. DiSanto’s “Employment Agreement” with Bingham was comprised of
the Letter Agreement and, by incorporation, the Partnership Agreement.
HEBBingham requested that Mr. DiSanto waive his right to guaranteed
compensation. When in November 2014 Mr. DiSanto refused to waive his
right to guaranteed compensation, Bingham terminated Mr. DiSanto.
During the course of my representation of him, Mr. DiSanto discussed with me
CASE NO. CGC-18-566778
DECLARATION OF PHILIP GREGORY IN SUPPORT OF MOTION OF DEFENDANTS TO COMPEL
ARBITRATION AND STAY PROCEEDINGS28
LONG & LEVIT LLP
465 CALIFORNIA STREET,
aH
SAN FRANCISCO,
CALIFORMIA. 94104
that the Bingham Partnership Agreement imposed obligations on Mr. DiSanto regarding
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8. Following Mr. DiSanto’s termination from Bingham, Mr. DiSanto engaged CPM
retention, CPM and Mr. DiSanto contemplated claims beyond Bingham’s compliance with the
compensation guarantees,
DOCS:867342.2 -4- CASE NO, CGC-18-566778
DECLARATION OF PHILIP GREGORY IN SUPPORT OF MOTION OF DI
ARBITRATION AND STAY PROCEEDINGS
“ENDANTS TO COMPEL1 9. Represented by CPM, Mr. DiSanto first engaged in mediation with Bingham and,
2 || when mediation failed, commenced the Bingham arbitration with JAMS on March 25, 2015.
3 || CPM proceeded with representation of Mr. DiSanto as contemplated by the Retainer Agreement
4
by filing a Claim against Bingham with JAMS (the “Claim”). [iy
a
10. On May 22, 2015, Bingham served Mr. DiSanto with its affirmative defenses and
counterclaims, which formally introduced Mr. DiSanto’s alleged breach of the Partnership and
Employment agreements to the arbitrtation. Mr. DiSanto and I did not alter the Retainer
Agreement to address any changes in CPM’s representation to include defense of the asserted
10 | counterclis. a
12 ll. On February 25, 2016, Bingham filed amended counterclaims to include additional
13 || details regarding Mr. DiSanto’s alleged wrongdoing and its claims for fraud and breach of the
14 | Bingham Partnership Agreement. [a
24 13. On March 15, 2016, Bingham amended its counterclaims again to include
25 | additional details in support of its counterclaims for fraud and breach of the Partnership
26 | Agreement. [ While Bingham further developed its claim, it maintained its
27 | original theory: Mr. DiSanto breached the Partnership Agreement related to Maker’s grant of
28 | stock options and restricted stock units to Mr. DiSanto.
DOCS:867342.2 -5- CASE NO. CGC-18-566778
LONG & LEVIT LLP
sesentgfonnan sce, DECLARATION OF PHILIP GREGORY IN SUPPORT OF MOTION OF DEFENDANTS TO COMPEL
SAN FRANCISCO, ARBITRATION AND STAY PROCEEDINGS
CALIFORNIA 98168co Cee NA
28
LONG & LEVIT LLP
465 CALIFORNIA STREET,
STI1 FL00
SAN FRANCISCO,
CALIFORNIA, 94106
14. As in May 2015, Mr. DiSanto and CPM did not enter into a new written retainer
agreement for CPM to represent Mr. DiSanto in defense of either of Bingham’s amended
counterclaims. Mr. DiSanto and | again discussed amending the Retainer Agreement but instead
agreed the Retainer Agreement applied and proceeded on that basis.
15. On April 26-29, 2016, the arbitrator, Hon. William Cahill (ret.), held the
evidentiary hearing on both the claims and counterclaims in San Francisco, CA. iii’
16. In his final award issued on February 11, 2017, Judge Cahill ordered Mr. DiSanto
to compensate Bingham on its counterclaim for breach of contract and provided nothing to Mr.
DiSanto on his claims and nothing to Bingham on its counterclaim for fraud.§ __s
17. Prior to the final award issued on February 11, 2017, Mr. DiSanto did not
indicate that terms other than the Retainer Agreement applied to the representation by CPM.
Instead, Mr. DiSanto and I agreed that CPM’s compensation for its provision of all services
would be governed by the Retainer Agreement, including the arbitration provision.
18. The most telling example of Mr. DiSanto’s understanding related to the broad
application of the Retainer Agreement arose after the final award issued on February 11, 2017.
CPM sent a cost bill after Mr. DiSanto settled with Bingham. This cost bill included all costs to
prosecute his claims and to defend against the counterclaims brought by Bingham against him.
Mr. DiSanto objected to paying any costs and asserted that the Retainer Agreement left CPM
responsible for all costs, including all costs to prosecute his claims and to defend against the
counterclaims brought by Bingham against him. Attached hereto as Exhibits 9 and 10 are true
and correct copies of the relevant correspondence.
DOCS:867342.2 -6 CASE NO. CGC-18-566778
DECLARATION OF PHILIP GREGORY IN SUPPORT OF MOTION OF DEFENDANTS TO COMPEL
ARBITRATION AND STAY PROCEEDINGS28
LONG & LEVIT LLP
465 CALIFORNIA STREET,
TH FLOOR
SAN FRANCISCO,
CALIFORNIA 94104
19. At no point did Mr. DiSanto assert that CPM’s costs needed to be allocated or
should be analyzed separately as to claims and counterclaims because the Retainer Agreement
only applied to the claims. Instead, he used the broad language of the Retainer Agreement to
assert that CPM is responsible for all costs, regardless of whether they related to services on the
“affirmative” or “defensive” claims.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Signed this 20th of July, 2018, at Eugene, OR.
DOCS:867342.2 -7- CASE NO, CGC-18-566778
DECLARATION OF PHILIP GREGORY IN SUPPORT OF MOTION OF DEFENDANTS TO COMPEL
ARBITRATIOW AND STAY PROCEEDINGS28
LONG & LEVIT LLP
465 CALIFORNIA STREET
STH FLOOR
SAN FRANCISCO,
CALIFORNIA 38108
PROOF OF SERVICE
I, the undersigned, declare:
I am a citizen of the United States and employed in San Francisco County, California. I
am over the age of eighteen years and not a party to the within-entitled action. My business
address is 465 California Street, Sth Floor, San Francisco, California 94104.
On July 20, 2018, I served the document(s) named below on the following attorney(s) of
record and/or interested parties in the case of Michael DiSanto v. Cotchett, Pitre & McCarthy
LLP, San Francisco County Superior Court Case No, CGC-18-566778.
DECLARATION OF PHILIP GREGORY IN SUPPORT OF MOTION OF
DEENDANTS TO COMPEL ARBITRATION AND STAY PROCEEDINGS [Public —
Redacts Materials From Conditionally Sealed Record]
SERVED UPON:
Attorney for Plaintiff Michael DiSanto
Asim Bhansali
Kate Lazarus
Kwun Bhansali Lazarus
555 Montgomery Street, Ste. 750
San Francisco, CA 94111
Tel: (415) 630-2350
Email: abhansali@kbltirm.com
Klazarus@kblfirm.com
[xl (BY OVERNIGHT MAIL) I am readily familiar with Long & Levit LLP’s practice
for collection and processing of documents for mailing via overnight delivery. I
caused such document(s) to be placed in a sealed envelope designated by the
overnight service carrier, addressed to the person(s) on whom it is to be served
pursuant to the attached service list, and deposited said envelope in a box or other
facility regularly maintained by the overnight service carrier with delivery fees
paid or provided for.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this declaration was executed on July 20, 2018, at San
Francisco, California.
{
"~~ Kelly Horak
-8- CASE NO. CGC-18-566778
DECLARATION OF PHILIP GREGORY IN SUPPORT OF MOTION OF DEFENDANTS TO COMPEL
ARBITRATION AND STAY PROCEEDINGSExhibit 1CONFIDENTIAL
RETENTION AGREEMENT
In return for legal services to be rendered by the LAW OFFICES OF COTCHETT,
PITRE & McCARTHY, LLP (“CPM”), for the prosecution of claims against Bingham
McCutcheon LLP (“BM”) and possible related entities, MICHAEL DiSANTO
(“DiSANTO”) employs CPM to prosecute the Claims as follows. CPM maintains errors
and omissions insurance applicable to the legal services to be rendered, : Md
(initials)
I. CLAIMS
DiSANTO is retaining CPM to investigate and prosecute claims arising out of the
breach of his Employment Agreement with BM. BM recruited DiSANTO to join the
partnership, using minimum compensation guarantees (among other promises) that were
approved by the overall partnership. BM is refusing to pay on the compensation guarantees.
CPM has made no representation whatsoever regarding the successful termination of the
Litigation and DiSANTO understands there may be a dispute as to the language of the
Employment Agreement, DiSANTO recognizes that he is bound to arbitrate under the
Employment Agreement.
(Initials)
I. ATTORNEYS FEES AND COSTS
L. CPM will represent DiSANTO on a contingent fee basis. DiSANTO will
pay for CPM’s services only if DISANTO prevails or otherwise receives compensation as
a result of CPM’s efforts. It is understood that no specific fee is set by law, and that this
fee has been specifically negotiated between the parties Wr
(hitials)
2. DiSANTO agrees to pay 22% (twenty-two percent) of the gross amount
recovered. “Gross amount recovered” is the total amount received by DiSANTO.
by way of settlement or judgment.
(Initials)
2. If DiSANTO’s recovery is by some form of periodic payment, CPM has the
option of receiving proportionate fees with each payment, or receiving the complete
present value of their fees through the initial payments.
(initials)
Page 1 of 2
10
10AG
“ols
3. CPM shall advance costs as in its judgment are necessary for the whe
prosecution of the Claims, and these costs advanced shall be returned from the gross Jt
amount recovered. These costs advanced will include regular office expenses related to
the Claims, as well as experts. Any costs pad by Dit ond wet advornc
toy CPan shah bbe refavad Eva tue spree recovery vecewed » Wo
(Initials)
I. ARBITRATION OF DISPUTES
1. If any dispute arises relating to this Agreement or CPM’s performance of
services hereunder, DISANTO and CPM agree that such dispute shall be submitted to
JAMS in San Francisco, CA, or, if that forum is not available, to another equivalent
alternative dispute resolution forum. DISANTO agrees to submit to the jurisdiction of
JAMS or the substitute forum for purposes of enforcing this arbitration agreement. The
dispute shall be conclusively decided, without appeal or review, by a mutually agreeable
JAMS neutral, or if an agreement cannot be reached as to a JAMS neutral, by a JAMS
neutral selected by the Senior Judicial Officer and Chairman of the Exccutive Committee
of JAMS (or the equivalent). Any costs, fees, or expenses of the services of JAMS will
initially be shared equally by DISANTO and CPM. Any award of the Arbitrator may re-
allocate Arbitration fees, Arbitrator compensation and costs pursuant to Rule 24 of the
JAMS Comprehensive Arbitration Rule and Procedures. This agrcement to arbitrate is
not intended to abrogate DISANTO’s right to require a non-binding fee arbitration
pursuant to California Business & Professions Code §§ 6200-6206. Wn?
(Initials)
2. By agreeing to arbitration of disputes relating to this Agreement or CPM’s
performance of services, DISANT acknowledges: (a} DISANT waives his right to a jury
trial as to such disputes; (2) the parties’ ability to conduct discovery is much more limited
in arbitration than in court proceedings; and (3) there is limited appellate review of an
arbitration. DISANT waives the right to a jury trial of any dispute with CPM relating to
this Agreement.
Bre ww)
(Initials)
Executed at Atherton, CA, this & n day of December, 2014,
Page 2 of 2
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41Exhibit 2
Filed Conditionally Under Seal
Pursuant to CRC 2.551
12Exhibit 3
Filed Conditionally Under Seal
Pursuant to CRC 2.551
13Exhibit 4
Filed Conditionally Under Seal
Pursuant to CRC 2.551
14Exhibit 5
Filed Conditionally Under Seal
Pursuant to CRC 2.551
15Exhibit 6
Filed Conditionally Under Seal
Pursuant to CRC 2.551
16Exhibit 7
Filed Conditionally Under Seal
Pursuant to CRC 2.551
17Exhibit 8
Filed Conditionally Under Seal
Pursuant to CRC 2.551
18Exhibit 9LAW OFFICES
CorTcHEtt, Pirre & McCartHy, LLP
LOS ANGELES SAN FRANCISCO AIRPORT OFFICE CENTER NEW YORK
‘840 MALCOLM ROAG
BURLINGAME, CALIFORNIA 94030
‘TELEPHONE (650) 697-6000
FAX (650) 697-0577
www.epmilegal.com
January 19, 2018
E-MAIL nw.nablawfurn@gmail.cor WH
Nicholas A. Boylan
Law Offices of Nicholas A. Boylan
233 A Street, Suite 1205
San Diego, CA 92101
Re: Michael DiSanto’s Request for All File Materials
Dear Mr. Boylan:
In response to your letter of January 17, 2018, requesting the materials for Michael
DiSanto:
1, Previous to your request, Mr. DiSanto was sent a great deal of files already that he
requested,
2. Mr. DiSanto owes the firm $101,405 - largely out-of-pocket costs that Mr. DiSanto has
never paid and refused to pay.
3. If you would like duplicative copies of Mr. DiSanto’s file materials - we will call ina
service to do that at your expense. Once you advise us that Mr. DiSanto will pay for the
copying of the files, we will have a vendor contact you directly so you can make financial
arrangements directly with them.
rely,
Phyllis Lee
Office Administrator
Cc: Joseph W. Cotchett
Frank M. Pitre
Niall P. McCarthy
Mark C. Molumphy
Philip L. Gregory
20Exhibit 10LAW OFFICE OF
NICHOLAS A, BOYLAN
SSSIONAI. CORPORATION
Suite 1205
*ADITIED I CALIFORKOA HIVADA AO TPSAS San Diego, CA 92101
Tamanna caon Telephone (619) 696-6344
Facsimile (619) 696-0478
NICHOLAS A. BOYLANS
LEAN VAVASOLR'”
January 26, 2018
Via E-Mail, Facsimile and U.S. Mail
Joseph W. Cotchett, Esq.
Philip L. Gregory, Esq.
COTCHETT PITRE & McCARTHBY, LLP.
San Francisco Airport Office Ctr.
840 Malcolm Road, Suite 200
Burlingame, CA 94010
Re: Michael DiSanto’s Request For All File Materials
Dear Mr. Cotchett and Mr. Gregory:
We write in response to correspondence we received from your firm dated
January 19, 2018, and signed by Phyllis Lee. (Ms. Lee’s correspondence purported to
respond to our earlier letter of January 17, 2018, in which we requested that your firm
provide us as soon as possible “any and all file materials related to your firm’s
representation” of our client, Mr. DiSanto.)
In her letter, Ms. Lee states that Mr. DiSanto—at some unspecified point in the
past—was “sent a great deal of files already that he requested,” and that “duplicative
copies of Mr. DiSanto’s file materials” will only be provided at Mr. DiSanto’s expense.
({emphasis in original]) Ms. Lee appears to be vague and ambiguous—perhaps
dcliberately—as to whether your firm is contending that it has already produced all of
your file materials to Mr. DiSanto, or only a “great deal” of them. Please clarify
immediately whether your firm is contending that it has already produced all of the file
materials we requested in our January 17, 2018, and, if so, provide specific details
regarding this purported production, At a minimum, please provide us detailed
information regarding what was purportedly produced, when it was purportedly
produced, and to whom it was purportedly produced.
As you are aware, Rule 3-700(d) of the California Rule of Professional Conduct
requires attorneys, upon termination of representation, to “promptly release to the
client, at the request of the client, all the client papers and property.” ({emphasis
added]) At a minimum, “client papers and property” includes “correspondence,
22Joseph W. Cotchett, Esq.
Philip L. Gregory, Esq.
January 26, 2018
Page 2
pleadings, deposition transcripts, exhibits, physical evidence, expert’s reports, and
other items reasonably necessary to the client’s representation, whether the client has
paid for them. .” Ud. [emphasis added].) It is our understanding, despite Ms. Lee’s
vague statements that may be perhaps to the contrary, that this has not been done by
your firm to date. Please do so, as soon as possible, as previously requested by us.
Despite Ms. Lee’s apparent improper suggestion to the contrary, your firm is not
entitled to withhold Mr. DiSanto’s papers and property unless he agrees to pay for the
expense. (California Rule of Professional Conduct 3-700(d).) Mr. DiSanto’s client file
belongs to him, not your firm, and we are aware of no agreement that would otherwise
give your firm the right to demand that Mr. DiSanto pay for any expenses incurred in
providing his client file. The December 8, 2014 contingency fee agreement certainly
does not give your firm such a right, as itis wholly silent on the subject. If your firm
wishes to make copies of Mr. DiSanto’s papers and property, i.e., the client file, before
you produce it to us as requested, then you are entitled to do so at your own expense,
and so long as such copying does not further delay production of Mr. DiSanto’s papers
and property.
To avoid any confusion or possible ambiguity, we reiterate that our request is for
any and all original file materials related to your firm’s representation of Mr. DiSanto,
and includes, without limitation, all e-mail and other ESI, as well as all “hard-copy”
materials. If you withhold any materials of any kind for any reason, please provide us a
very specific description of all items withheld. Given that Mr. DiSanto is asserting a
claim for malpractice (and negligent misrepresentation) against your firm, please bear
as against Mr, DiSanto on matters
“relevant to an issue of breach by the attorney of a duty to the client arising out of the
attorney-client relationship.” (California Code of Civil Procedure Section 2018.080.)
Finally, Ms. Lee asserts that Mr. DiSanto owes your firm $101,405, which she
vaguely describes as “largely out-of-pocket costs that Mr. DiSanto has never paid and
refused to pay.” ({emphasis in original].) Please promptly provide a full and detailed
accounting regarding any and all amounts—whether costs or otherwise—that your firm
contends Mr. DiSanto owes your firm. Please also provide support for Ms. Lee’s claim
that Mr. DiSanto has refused to pay any and all of these amounts. We would note again
that the December 8, 2014 contingency fee agreement expressly provides that your firm
would advance costs, and that those advanced costs would be “returned from the gross
amount recovered.” As you are aware, no amount was recovered by your firm for Mr.
DiSanto, and the December 8, 2014 agreement does not contain any provision requiring
Mr. DiSanto to reimburse your firm for advanced costs in that event.
23Joseph W. Cotchett, Esq.
Philip L. Gregory, Esq,
January 26, 2018
Page 3
We thank you in advance with your prompt cooperation with this request.
Very truly yours,
LAW OFFICE OF OLAS A. BOYLAN
Ww? ) 7
Nicholas A. Boylan
24
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28 LONG & LEVIT LLP 463 CALIFORNIA STREET, CALIFORNIA 94108 JOSEPH P. MCMONIGLE, Bar No. 66811 DAVID 8. MCMONIGLE, Bar No. 258980 LONG & LEVIT LLP 465 California Street, Suite 500 San Francisco, California 94104 Telephone: (415) 397-2222 Facsimile: (415) 397-6392 Email: jmemonigle@longlevit.com dmemonigle@longlevit.com Attorneys for Defendants ELECTRONICALLY FILED Superior Court of California, County of San Francisco 07/20/2018 Clerk of the Court BY: ANNA TORRES Deputy Clerk PHILIP GREGORY and COTCHETT, PITRE & MCCARTHY, LLP SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO MICHAEL DISANTO, Plaintiff, v. COTCHETT, PITRE & MCCARTHY, LLP, PHILIP GREGORY and DOES 1 through 10, inclusive, Defendants. Case No. CGC-18-566778 DECLARATION OF PHILIP GREGORY IN SUPPORT OF MOTION OF DEENDANTS TO COMPEL ARBITRATION AND STAY PROCEEDINGS ** REDACTED** DATE: August 20, 2018 TIME: 9:30 DEPT: 302 RESERVATION NO. 07190820-11 Action Filed: May 24, 2018 PUBLIC — REDACTS MATERIALS FROM CONDITIONALLY SEALED RECORD DOCS:867342.2 CASE NO. CGC-18-566778 DECLARATION OF PHILIP GREGORY IN SUPPORT OF MOTION OF DEFENDANTS TO COMPEL ARBITRATION AND STAY PROCEEDINGSAk WN = Ce NN 28 LONG & LEVIT LLP 465 CALIFORNIA STREET, STH FLOOR SAN FRANCISCO, CALIFORNIA 96108 I, Philip Gregory, hereby declare as follows: 1. I am an attorney duly licensed to practice law in the State of California and am the owner of the Gregory Law Group. I started working as an attorney at Cotchett, Pitre & McCarthy, LLP (“CPM”) in March 2005 and remained a partner until February 1, 2018, when I left CPM to start the Gregory Law Group. I am a defendant in this action and was previously counsel for Plaintiff Michael DiSanto (“Mr. DiSanto”) in the arbitration that preceded this legal malpractice action. I have personal knowledge of the facts stated herein and if called upon as a witness, I could and would competently and completely testify to the truth of the statements contained herein. 2. In December 2014, Mr. DiSanto retained CPM to represent his interests in arbitration arising out of a breach of Mr. DiSanto’s employment relationship with Bingham McCutchen LLP (“Bingham”). Mr. DiSanto and CPM executed a retainer agreement (the “Retainer Agreement”) on December 8, 2014. Attached hereto as Exhibit 1 is a true and correct copy of the Retainer Agreement dated December 8, 2014. 3. The instant litigation concerns a Second Amended Counterclaims brought on March 15, 2016 by Bingham against Mr. DiSanto. [as 4, Prior to signing the Retainer Agreement, Mr. DiSanto informed me of the following facts: a. Onor about March 14, 2013, Mr. DiSanto had executed a Letter Agreement with Bingham and joined the Bingham partnership. b. The Letter Agreement was subject to and incorporated by reference Bingham’s Articles of Partnership (the “Partnership Agreement”). c. Inthe event of any inconsistency between the terms of the Bingham Partnership Agreement and the Letter Agreement, the terms of the Bingham Partnership Agrgement were to be controlling. The terms of the DOCS:867342.2 CASE NO. CGC-18-566778 DECLARATION OF PHILIP GREGORY IN SUPPORT OF MOTION OF DEFENDANTS TO COMPEL ARBITRATION AND STAY PROCEEDINGS28 LONG & LEVIT LLP 465 CALIFORNIA STREET, S11 FLO SAN FRANCISCO, CALIFORNIA 94108 3. DOCS:867342.2 _etter Agreement had been approved by a favorable vote of the Equity Partners of Bingham under the Bingham Partnership Agreement. . Subject to the Letter Agreement and the Bingham Partnership Agreement, Bingham purported to guarantee Mr. DiSanto a certain salary and bonus from the date he became a partner. Shortly before Mr. DiSanto joined Bingham, he was serving as Chief Operating Officer at Maker Studios, Inc. (“Maker”) and it was understood that Mr. DiSanto would receive, but had not yet received, an increase of his equity interest in Maker. es WEE [n) order to become a partner at Bingham, Mr. DiSanto had to resign his position as Chief Operating Officer at Maker. iy . Mr. DiSanto’s “Employment Agreement” with Bingham was comprised of the Letter Agreement and, by incorporation, the Partnership Agreement. HEBBingham requested that Mr. DiSanto waive his right to guaranteed compensation. When in November 2014 Mr. DiSanto refused to waive his right to guaranteed compensation, Bingham terminated Mr. DiSanto. During the course of my representation of him, Mr. DiSanto discussed with me CASE NO. CGC-18-566778 DECLARATION OF PHILIP GREGORY IN SUPPORT OF MOTION OF DEFENDANTS TO COMPEL ARBITRATION AND STAY PROCEEDINGS28 LONG & LEVIT LLP 465 CALIFORNIA STREET, aH SAN FRANCISCO, CALIFORMIA. 94104 that the Bingham Partnership Agreement imposed obligations on Mr. DiSanto regarding 2 gs 3 3 § a a» @ & e 5 5 g & g. = & & > é 3 = 5 a sz 5 s g 8. Following Mr. DiSanto’s termination from Bingham, Mr. DiSanto engaged CPM retention, CPM and Mr. DiSanto contemplated claims beyond Bingham’s compliance with the compensation guarantees, DOCS:867342.2 -4- CASE NO, CGC-18-566778 DECLARATION OF PHILIP GREGORY IN SUPPORT OF MOTION OF DI ARBITRATION AND STAY PROCEEDINGS “ENDANTS TO COMPEL1 9. Represented by CPM, Mr. DiSanto first engaged in mediation with Bingham and, 2 || when mediation failed, commenced the Bingham arbitration with JAMS on March 25, 2015. 3 || CPM proceeded with representation of Mr. DiSanto as contemplated by the Retainer Agreement 4 by filing a Claim against Bingham with JAMS (the “Claim”). [iy a 10. On May 22, 2015, Bingham served Mr. DiSanto with its affirmative defenses and counterclaims, which formally introduced Mr. DiSanto’s alleged breach of the Partnership and Employment agreements to the arbitrtation. Mr. DiSanto and I did not alter the Retainer Agreement to address any changes in CPM’s representation to include defense of the asserted 10 | counterclis. a 12 ll. On February 25, 2016, Bingham filed amended counterclaims to include additional 13 || details regarding Mr. DiSanto’s alleged wrongdoing and its claims for fraud and breach of the 14 | Bingham Partnership Agreement. [a 24 13. On March 15, 2016, Bingham amended its counterclaims again to include 25 | additional details in support of its counterclaims for fraud and breach of the Partnership 26 | Agreement. [ While Bingham further developed its claim, it maintained its 27 | original theory: Mr. DiSanto breached the Partnership Agreement related to Maker’s grant of 28 | stock options and restricted stock units to Mr. DiSanto. DOCS:867342.2 -5- CASE NO. CGC-18-566778 LONG & LEVIT LLP sesentgfonnan sce, DECLARATION OF PHILIP GREGORY IN SUPPORT OF MOTION OF DEFENDANTS TO COMPEL SAN FRANCISCO, ARBITRATION AND STAY PROCEEDINGS CALIFORNIA 98168co Cee NA 28 LONG & LEVIT LLP 465 CALIFORNIA STREET, STI1 FL00 SAN FRANCISCO, CALIFORNIA, 94106 14. As in May 2015, Mr. DiSanto and CPM did not enter into a new written retainer agreement for CPM to represent Mr. DiSanto in defense of either of Bingham’s amended counterclaims. Mr. DiSanto and | again discussed amending the Retainer Agreement but instead agreed the Retainer Agreement applied and proceeded on that basis. 15. On April 26-29, 2016, the arbitrator, Hon. William Cahill (ret.), held the evidentiary hearing on both the claims and counterclaims in San Francisco, CA. iii’ 16. In his final award issued on February 11, 2017, Judge Cahill ordered Mr. DiSanto to compensate Bingham on its counterclaim for breach of contract and provided nothing to Mr. DiSanto on his claims and nothing to Bingham on its counterclaim for fraud.§ __s 17. Prior to the final award issued on February 11, 2017, Mr. DiSanto did not indicate that terms other than the Retainer Agreement applied to the representation by CPM. Instead, Mr. DiSanto and I agreed that CPM’s compensation for its provision of all services would be governed by the Retainer Agreement, including the arbitration provision. 18. The most telling example of Mr. DiSanto’s understanding related to the broad application of the Retainer Agreement arose after the final award issued on February 11, 2017. CPM sent a cost bill after Mr. DiSanto settled with Bingham. This cost bill included all costs to prosecute his claims and to defend against the counterclaims brought by Bingham against him. Mr. DiSanto objected to paying any costs and asserted that the Retainer Agreement left CPM responsible for all costs, including all costs to prosecute his claims and to defend against the counterclaims brought by Bingham against him. Attached hereto as Exhibits 9 and 10 are true and correct copies of the relevant correspondence. DOCS:867342.2 -6 CASE NO. CGC-18-566778 DECLARATION OF PHILIP GREGORY IN SUPPORT OF MOTION OF DEFENDANTS TO COMPEL ARBITRATION AND STAY PROCEEDINGS28 LONG & LEVIT LLP 465 CALIFORNIA STREET, TH FLOOR SAN FRANCISCO, CALIFORNIA 94104 19. At no point did Mr. DiSanto assert that CPM’s costs needed to be allocated or should be analyzed separately as to claims and counterclaims because the Retainer Agreement only applied to the claims. Instead, he used the broad language of the Retainer Agreement to assert that CPM is responsible for all costs, regardless of whether they related to services on the “affirmative” or “defensive” claims. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Signed this 20th of July, 2018, at Eugene, OR. DOCS:867342.2 -7- CASE NO, CGC-18-566778 DECLARATION OF PHILIP GREGORY IN SUPPORT OF MOTION OF DEFENDANTS TO COMPEL ARBITRATIOW AND STAY PROCEEDINGS28 LONG & LEVIT LLP 465 CALIFORNIA STREET STH FLOOR SAN FRANCISCO, CALIFORNIA 38108 PROOF OF SERVICE I, the undersigned, declare: I am a citizen of the United States and employed in San Francisco County, California. I am over the age of eighteen years and not a party to the within-entitled action. My business address is 465 California Street, Sth Floor, San Francisco, California 94104. On July 20, 2018, I served the document(s) named below on the following attorney(s) of record and/or interested parties in the case of Michael DiSanto v. Cotchett, Pitre & McCarthy LLP, San Francisco County Superior Court Case No, CGC-18-566778. DECLARATION OF PHILIP GREGORY IN SUPPORT OF MOTION OF DEENDANTS TO COMPEL ARBITRATION AND STAY PROCEEDINGS [Public — Redacts Materials From Conditionally Sealed Record] SERVED UPON: Attorney for Plaintiff Michael DiSanto Asim Bhansali Kate Lazarus Kwun Bhansali Lazarus 555 Montgomery Street, Ste. 750 San Francisco, CA 94111 Tel: (415) 630-2350 Email: abhansali@kbltirm.com Klazarus@kblfirm.com [xl (BY OVERNIGHT MAIL) I am readily familiar with Long & Levit LLP’s practice for collection and processing of documents for mailing via overnight delivery. I caused such document(s) to be placed in a sealed envelope designated by the overnight service carrier, addressed to the person(s) on whom it is to be served pursuant to the attached service list, and deposited said envelope in a box or other facility regularly maintained by the overnight service carrier with delivery fees paid or provided for. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on July 20, 2018, at San Francisco, California. { "~~ Kelly Horak -8- CASE NO. CGC-18-566778 DECLARATION OF PHILIP GREGORY IN SUPPORT OF MOTION OF DEFENDANTS TO COMPEL ARBITRATION AND STAY PROCEEDINGSExhibit 1CONFIDENTIAL RETENTION AGREEMENT In return for legal services to be rendered by the LAW OFFICES OF COTCHETT, PITRE & McCARTHY, LLP (“CPM”), for the prosecution of claims against Bingham McCutcheon LLP (“BM”) and possible related entities, MICHAEL DiSANTO (“DiSANTO”) employs CPM to prosecute the Claims as follows. CPM maintains errors and omissions insurance applicable to the legal services to be rendered, : Md (initials) I. CLAIMS DiSANTO is retaining CPM to investigate and prosecute claims arising out of the breach of his Employment Agreement with BM. BM recruited DiSANTO to join the partnership, using minimum compensation guarantees (among other promises) that were approved by the overall partnership. BM is refusing to pay on the compensation guarantees. CPM has made no representation whatsoever regarding the successful termination of the Litigation and DiSANTO understands there may be a dispute as to the language of the Employment Agreement, DiSANTO recognizes that he is bound to arbitrate under the Employment Agreement. (Initials) I. ATTORNEYS FEES AND COSTS L. CPM will represent DiSANTO on a contingent fee basis. DiSANTO will pay for CPM’s services only if DISANTO prevails or otherwise receives compensation as a result of CPM’s efforts. It is understood that no specific fee is set by law, and that this fee has been specifically negotiated between the parties Wr (hitials) 2. DiSANTO agrees to pay 22% (twenty-two percent) of the gross amount recovered. “Gross amount recovered” is the total amount received by DiSANTO. by way of settlement or judgment. (Initials) 2. If DiSANTO’s recovery is by some form of periodic payment, CPM has the option of receiving proportionate fees with each payment, or receiving the complete present value of their fees through the initial payments. (initials) Page 1 of 2 10 10AG “ols 3. CPM shall advance costs as in its judgment are necessary for the whe prosecution of the Claims, and these costs advanced shall be returned from the gross Jt amount recovered. These costs advanced will include regular office expenses related to the Claims, as well as experts. Any costs pad by Dit ond wet advornc toy CPan shah bbe refavad Eva tue spree recovery vecewed » Wo (Initials) I. ARBITRATION OF DISPUTES 1. If any dispute arises relating to this Agreement or CPM’s performance of services hereunder, DISANTO and CPM agree that such dispute shall be submitted to JAMS in San Francisco, CA, or, if that forum is not available, to another equivalent alternative dispute resolution forum. DISANTO agrees to submit to the jurisdiction of JAMS or the substitute forum for purposes of enforcing this arbitration agreement. The dispute shall be conclusively decided, without appeal or review, by a mutually agreeable JAMS neutral, or if an agreement cannot be reached as to a JAMS neutral, by a JAMS neutral selected by the Senior Judicial Officer and Chairman of the Exccutive Committee of JAMS (or the equivalent). Any costs, fees, or expenses of the services of JAMS will initially be shared equally by DISANTO and CPM. Any award of the Arbitrator may re- allocate Arbitration fees, Arbitrator compensation and costs pursuant to Rule 24 of the JAMS Comprehensive Arbitration Rule and Procedures. This agrcement to arbitrate is not intended to abrogate DISANTO’s right to require a non-binding fee arbitration pursuant to California Business & Professions Code §§ 6200-6206. Wn? (Initials) 2. By agreeing to arbitration of disputes relating to this Agreement or CPM’s performance of services, DISANT acknowledges: (a} DISANT waives his right to a jury trial as to such disputes; (2) the parties’ ability to conduct discovery is much more limited in arbitration than in court proceedings; and (3) there is limited appellate review of an arbitration. DISANT waives the right to a jury trial of any dispute with CPM relating to this Agreement. Bre ww) (Initials) Executed at Atherton, CA, this & n day of December, 2014, Page 2 of 2 11 41Exhibit 2 Filed Conditionally Under Seal Pursuant to CRC 2.551 12Exhibit 3 Filed Conditionally Under Seal Pursuant to CRC 2.551 13Exhibit 4 Filed Conditionally Under Seal Pursuant to CRC 2.551 14Exhibit 5 Filed Conditionally Under Seal Pursuant to CRC 2.551 15Exhibit 6 Filed Conditionally Under Seal Pursuant to CRC 2.551 16Exhibit 7 Filed Conditionally Under Seal Pursuant to CRC 2.551 17Exhibit 8 Filed Conditionally Under Seal Pursuant to CRC 2.551 18Exhibit 9LAW OFFICES CorTcHEtt, Pirre & McCartHy, LLP LOS ANGELES SAN FRANCISCO AIRPORT OFFICE CENTER NEW YORK ‘840 MALCOLM ROAG BURLINGAME, CALIFORNIA 94030 ‘TELEPHONE (650) 697-6000 FAX (650) 697-0577 www.epmilegal.com January 19, 2018 E-MAIL nw.nablawfurn@gmail.cor WH Nicholas A. Boylan Law Offices of Nicholas A. Boylan 233 A Street, Suite 1205 San Diego, CA 92101 Re: Michael DiSanto’s Request for All File Materials Dear Mr. Boylan: In response to your letter of January 17, 2018, requesting the materials for Michael DiSanto: 1, Previous to your request, Mr. DiSanto was sent a great deal of files already that he requested, 2. Mr. DiSanto owes the firm $101,405 - largely out-of-pocket costs that Mr. DiSanto has never paid and refused to pay. 3. If you would like duplicative copies of Mr. DiSanto’s file materials - we will call ina service to do that at your expense. Once you advise us that Mr. DiSanto will pay for the copying of the files, we will have a vendor contact you directly so you can make financial arrangements directly with them. rely, Phyllis Lee Office Administrator Cc: Joseph W. Cotchett Frank M. Pitre Niall P. McCarthy Mark C. Molumphy Philip L. Gregory 20Exhibit 10LAW OFFICE OF NICHOLAS A, BOYLAN SSSIONAI. CORPORATION Suite 1205 *ADITIED I CALIFORKOA HIVADA AO TPSAS San Diego, CA 92101 Tamanna caon Telephone (619) 696-6344 Facsimile (619) 696-0478 NICHOLAS A. BOYLANS LEAN VAVASOLR'” January 26, 2018 Via E-Mail, Facsimile and U.S. Mail Joseph W. Cotchett, Esq. Philip L. Gregory, Esq. COTCHETT PITRE & McCARTHBY, LLP. San Francisco Airport Office Ctr. 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Re: Michael DiSanto’s Request For All File Materials Dear Mr. Cotchett and Mr. Gregory: We write in response to correspondence we received from your firm dated January 19, 2018, and signed by Phyllis Lee. (Ms. Lee’s correspondence purported to respond to our earlier letter of January 17, 2018, in which we requested that your firm provide us as soon as possible “any and all file materials related to your firm’s representation” of our client, Mr. DiSanto.) In her letter, Ms. Lee states that Mr. DiSanto—at some unspecified point in the past—was “sent a great deal of files already that he requested,” and that “duplicative copies of Mr. DiSanto’s file materials” will only be provided at Mr. DiSanto’s expense. ({emphasis in original]) Ms. Lee appears to be vague and ambiguous—perhaps dcliberately—as to whether your firm is contending that it has already produced all of your file materials to Mr. DiSanto, or only a “great deal” of them. Please clarify immediately whether your firm is contending that it has already produced all of the file materials we requested in our January 17, 2018, and, if so, provide specific details regarding this purported production, At a minimum, please provide us detailed information regarding what was purportedly produced, when it was purportedly produced, and to whom it was purportedly produced. As you are aware, Rule 3-700(d) of the California Rule of Professional Conduct requires attorneys, upon termination of representation, to “promptly release to the client, at the request of the client, all the client papers and property.” ({emphasis added]) At a minimum, “client papers and property” includes “correspondence, 22Joseph W. Cotchett, Esq. Philip L. Gregory, Esq. January 26, 2018 Page 2 pleadings, deposition transcripts, exhibits, physical evidence, expert’s reports, and other items reasonably necessary to the client’s representation, whether the client has paid for them. .” Ud. [emphasis added].) It is our understanding, despite Ms. Lee’s vague statements that may be perhaps to the contrary, that this has not been done by your firm to date. Please do so, as soon as possible, as previously requested by us. Despite Ms. Lee’s apparent improper suggestion to the contrary, your firm is not entitled to withhold Mr. DiSanto’s papers and property unless he agrees to pay for the expense. (California Rule of Professional Conduct 3-700(d).) Mr. DiSanto’s client file belongs to him, not your firm, and we are aware of no agreement that would otherwise give your firm the right to demand that Mr. DiSanto pay for any expenses incurred in providing his client file. The December 8, 2014 contingency fee agreement certainly does not give your firm such a right, as itis wholly silent on the subject. If your firm wishes to make copies of Mr. DiSanto’s papers and property, i.e., the client file, before you produce it to us as requested, then you are entitled to do so at your own expense, and so long as such copying does not further delay production of Mr. DiSanto’s papers and property. To avoid any confusion or possible ambiguity, we reiterate that our request is for any and all original file materials related to your firm’s representation of Mr. DiSanto, and includes, without limitation, all e-mail and other ESI, as well as all “hard-copy” materials. If you withhold any materials of any kind for any reason, please provide us a very specific description of all items withheld. Given that Mr. DiSanto is asserting a claim for malpractice (and negligent misrepresentation) against your firm, please bear as against Mr, DiSanto on matters “relevant to an issue of breach by the attorney of a duty to the client arising out of the attorney-client relationship.” (California Code of Civil Procedure Section 2018.080.) Finally, Ms. Lee asserts that Mr. DiSanto owes your firm $101,405, which she vaguely describes as “largely out-of-pocket costs that Mr. DiSanto has never paid and refused to pay.” ({emphasis in original].) Please promptly provide a full and detailed accounting regarding any and all amounts—whether costs or otherwise—that your firm contends Mr. DiSanto owes your firm. Please also provide support for Ms. Lee’s claim that Mr. DiSanto has refused to pay any and all of these amounts. We would note again that the December 8, 2014 contingency fee agreement expressly provides that your firm would advance costs, and that those advanced costs would be “returned from the gross amount recovered.” As you are aware, no amount was recovered by your firm for Mr. DiSanto, and the December 8, 2014 agreement does not contain any provision requiring Mr. DiSanto to reimburse your firm for advanced costs in that event. 23Joseph W. Cotchett, Esq. Philip L. Gregory, Esq, January 26, 2018 Page 3 We thank you in advance with your prompt cooperation with this request. Very truly yours, LAW OFFICE OF OLAS A. BOYLAN Ww? ) 7 Nicholas A. Boylan 24