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1 JOSEPH S. PICCHI, ESQ. (State Bar No. 157102)
ALEXANDER D. PROMM, ESQ. (State Bar No. 318412)
2 GALLOWAY, LUCCHESE, EVERSON & PICCHI
A Professional Corporation
3 2300 Contra Costa Blvd., Suite 350
Pleasant Hill, CA 94523-2398
4 Tel. No. (925) 930-9090
Fax No. (925) 930-9035
5 E-mail: jpicchi@glattys.com; apromm@glattys.com
6 Attorneys for Defendants
B. EDWARD McCUTCHAN, JR.; ROBERT J. SUNDERLAND; SUNDERLAND |
7 McCUTCHAN, LLP and SUNDERLAND | MCCUTCHAN, INC.
8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF SONOMA
10 RICHARD ABEL, an individual, Case No. SCV263456
11 Plaintiff, The Honorable Christopher
Honigsberg
12 vs.
DECLARATION OF PAUL W. WINDUST,
13 B. EDWARD McCUTCHAN JR., an IN SUPPORT OF DEFENDANTS
individual; SUNDERLAND/McCUTCHAN, MOTIONS FOR SUMMARY JUDGMENT
14 LLP, a general partnership; and DOES 1 OR IN THE ALTERNATIVE SUMMARY
through 100, inclusive, ADJUDICATION
15
Defendants.
16 Date:
Time:
17 Dept: 18
18 Date Complaint Filed: November 2, 2018
Trial: March 10, 2023
19
20
21 I, PAUL W. WINDUST, ESQ. declare as follows:
22 1. 1. I am an attorney at law duly licensed to practice before all the courts
23 in the State of California.
24 2. I make this declaration on behalf of Defendants B. EDWARD
25 MCCUTCHAN, JR.; ROBERT J. SUNDERLAND; SUNDERLAND | MCCUTCHAN, LLP
26 AND SUNDERLAND | MCCUTCHAN, INC. in support of the instant Motion for Summary
27 Judgment or in the alternative Summary Adjudication based on my education, experience
28 and upon my review of the First Amended Complaint in this action, the Declaration of Mr.
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
__________________________________
2300 Contra Costa Blvd., 1
Suite 350 SCV263456: DECLARATION OF PAUL W. WINDUST, IN SUPPORT OF DEFENDANTS
Pleasant Hill, CA 94523
956-10761/ATS/1170169
(925) 930-9090 MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY
ADJUDICATION
1 Amended Complaint in this action, the Declaration of Mr. McCutchan and underlying case
2 file, including but not limited to the correspondence to clients, pleadings, and judgments.
3 If called as a witness, I could and would competently testify to the opinions contained
4 within this declaration. In forming my opinions as to whether or not Defendants complied
5 with the standard of care for an attorney, I am basing my opinion on whether Defendants
6 used the skill and care that a reasonably careful attorney would have used in similar
7 circumstances.
8 3. It is my understanding that this is an action filed by Plaintiff in pro per against
9 his former attorney, Edward McCutchan and SUNDERLAND | McCUTCHAN, LLP. The
10 underlying matter from which this case arises was the matter of Liebling, et.al. v.
11 Goodrich, et al., Case No. SCV-245738 (the Liebling Action”). According to the allegations
12 in the Complaint, the Liebling Action commenced on August 25, 2009, with ninety-seven
13 (97) plaintiffs and twenty-eight (28) defendants. There were three (3) trials in the case,
14 and the final trial occurred on October 5, 2016. The Complaint alleges that a judgment of
15 $14,545,001 was entered on October 5, 2016.
16 4. According to the Declaration of Mr. McCutchan, in early 2009, Michael
17 Maloney, a former associate with SUNDERLAND | McCUTCHAN, LLP was contacted by
18 an investor about a loan made in connection with a real estate development in Malibu,
19 CA. He was informed that several lenders loaned the borrower, Robert E. Zuckerman as
20 president of Malibu Greene 3 Corporation, a Nevada Corporation, and money for
21 development of property in Southern California. Mortgage Brokers for the loan were
22 Charlene Goodrich Loan Servicing, Inc. (CGLS). The escrow closer was Fidelity National
23 Title Company. He was informed that no payments had been made from the borrowers,
24 and that they were in default. Robert E. Zuckerman was the main borrower.
25 5. As noted by Mr. McCutchan, generally at issue in the case were four large
26 parcels, totaling 174 acres, in the hills overlooking Pacific Coast Highway off Decker
27 Canyon and Corral Canyon roads. The properties were subdivided into 13 parcels.
28 Investors were told that homes of up to 10,000-square-feet could be built on each one,
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
__________________________________
2300 Contra Costa Blvd., 2
Suite 350 SCV263456: DECLARATION OF PAUL W. WINDUST, IN SUPPORT OF DEFENDANTS
Pleasant Hill, CA 94523
956-10761/ATS/1170169
(925) 930-9090 MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY
ADJUDICATION
1 according to the offering circulars. Information provided to investors indicated that the
2 land had been appraised in mid-2005 for nearly $13 million.
3 6. Charlene Goodrich solicited investors for loans on the properties twice,
4 once in early 2005 to fund construction and again about six months later to refinance the
5 first loans, according to investors’ documents. Investors learned of the investment
6 opportunities through advertisements that Charlene Goodrich placed in Northern
7 California newspapers and on radio shows offering high returns.
8 7. The borrowers were a group of partnerships registered in Nevada, with
9 names such as Greene Broad Beach and Malibu Beach View, according to
10 documentation Goodrich sent investors. The crux of the case was that there was no
11 California Coastal Commission recorded approval on the 13 assessor parcels to make
12 them 13 legal separate parcels. That meant that at most four homes could be built, not
13 13, reducing the value of the properties exponentially. It was Defendants’ analysis that
14 Robert Zuckerman, John Cruikshank and Peter Skarpias knew this before obtaining the
15 loans and that Mr. Zuckerman submitted documents for his desired loan from the Sonoma
16 County Investors. Whether the other named defendants were aware that the California
17 Coastal Commission had not approved the 13 parcels was not clear at the outset of the
18 case. Discovery during the case did not establish a clear breach of duty as to those
19 defendants.
20 8. Prior to filing the complaint in the Liebling matter, Mr. McCutchan met with
21 the Claimants and they ultimately each signed a fee agreement and cooperation
22 agreement, including Plaintiff in this matter, Richard Abel. This followed the standard of
23 care. The fee agreements each contained a conflict waiver. In a case such as this the
24 most practical way is to proceed is with a single attorney representing all of the claimants
25 in a single action. Although there is always a potential conflict when the same counsel
26 represents multiple claimants, this does not prohibit representation if the potential conflict
27 is identified and the clients sign a written waiver.
28
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
__________________________________
2300 Contra Costa Blvd., 3
Suite 350 SCV263456: DECLARATION OF PAUL W. WINDUST, IN SUPPORT OF DEFENDANTS
Pleasant Hill, CA 94523
956-10761/ATS/1170169
(925) 930-9090 MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY
ADJUDICATION
1 9. The fee agreement provided for a hybrid fee arrangement. The fee
2 arrangement was $250.00 per hour and 15% of any recovery to the group. The fee
3 arrangement was reasonable for the scope of work to be performed by SUNDERLAND |
4 MCCUTCHAN and its attorneys. The agreement and the terms of the agreement were
5 consistent with the standard of care.
6 10. It should be noted that the language in the fee agreement did not comply
7 with California Business and Professions Code section 6147. A 2010 Appellate Court
8 case, Arnall v. Superior Court, (2010) 190 Cal.App.4th 360, 371, ruled that Section 6147
9 applied to hybrid contingency fee agreements. Pursuant to that decision additional
10 language set forth in Section 6147 needed to have been included in the fee agreement.
11 However, the fact that this language was not included in the agreement did not impact
12 the services provided by SUNDERLAND | MCCUTCHAN to Claimants or damage
13 Claimants in anyway. At most, it would only be adverse to SUNDERLAND |
14 MCCUTCHAN’s claim for attorney fees from the Claimants. If the fee agreement were
15 void, SUNDERLAND | MCCUTCHAN and its attorneys would only be entitled to recover
16 fees based on the reasonable value of their services.
17 The formation of the attorney client relationship, the contract, and the
18 determination that group representation would be best suited for this matter was all within
19 the standard of care.
20 11. From my review of the file materials, it is apparent that SUNDERLAND |
21 MCCUTCHAN and its attorneys provided regular status updates and billing explanations.
22 These were sufficient to keep the clients informed of the case status, proposed strategies,
23 and provided an opportunity for all of the clients to provide feedback to the attorneys or
24 ask additional questions. These reports continued throughout the pendency of the case,
25 which was nearly 8 years (from May 2009 past the time judgment was entered in April of
26 2017). SUNDERLAND | MCCUTCHAN and its attorneys’ communications with their
27 clients, including Mr. Abel, during this time period complied with the standard of care.
28
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
__________________________________
2300 Contra Costa Blvd., 4
Suite 350 SCV263456: DECLARATION OF PAUL W. WINDUST, IN SUPPORT OF DEFENDANTS
Pleasant Hill, CA 94523
956-10761/ATS/1170169
(925) 930-9090 MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY
ADJUDICATION
1 12. During the pendency of the case, Mr. McCutchan and his office engaged in
2 significant discovery and motion practice. According to Mr. McCutchan, they also
3 conducted asset searches and research with respect to the claim in order to identify those
4 persons and entities responsible for the misconduct and who had sufficient assets to allow
5 recovery. Based upon Mr. McCutchan’s research into the claims it was his belief that
6 underlying defendants Robert Zuckerman, John Cruikshank and Peter Skarpias were
7 responsible for misleading the investors and the most culpable. These defendants were
8 the contact persons according to Ms. Goodrich and Mr. Zuckerman had submitted his
9 C.V. to Charlene Goodrich and represented himself as the Principal player to get a loan
10 for the Malibu project.
11 13. The other Liebling defendants had limited involvement and no clear liability,
12 and/or had sought bankruptcy protection. These underlying defendants were therefore
13 dismissed to allow Mr. McCutchan to pursue the most culpable defendants with assets.
14 14. In his Declaration, Mr. McCutchan describes that the underlying basis for
15 the claim was Mr. Zuckerman’s fraud in representing that the California Coastal
16 Commission approved the 13 assessor parcels to make them 13 legal separate parcels
17 when in fact it had not. Mr. McCutchan explains why the other initial underlying defendants
18 were dismissed in order to focus the case on those that he understood to be the
19 responsible parties. This decision ultimately resulted in a large verdict. Mr. McCutchan’s
20 strategy and decision to dismiss those individuals and entities identified in his Declaration
21 was based on his judgment as the attorney in this matter and was not a violation of the
22 standard of care.
23 15. In addition, while the case proceeded several of the Claimants decided that
24 they no longer wanted to be part of the case. When this occurred, Mr. McCutchan would
25 arrange for them to dismiss their individual claims in exchange for cost waivers. It is
26 important to note that Mr. Abel was informed of the dismissals as part of the weekly status
27 letters, which also included a list of the current Claimants. Mr. Abel never told Mr.
28
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
__________________________________
2300 Contra Costa Blvd., 5
Suite 350 SCV263456: DECLARATION OF PAUL W. WINDUST, IN SUPPORT OF DEFENDANTS
Pleasant Hill, CA 94523
956-10761/ATS/1170169
(925) 930-9090 MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY
ADJUDICATION
1 McCutchan that he sought or that he received any assignments from the Claimants that
2 dismissed their claims.
3 16. According to my review of the case file, the case proceeded through
4 discovery with Mr. McCutchan conducting written discovery, opposing demurrers and
5 motions to change venue, and he prepared the case for the initial trial which was set to
6 being in March 2014. Ultimately, that trial resulted in judgment in favor of Claimants
7 17. At trial on March 27, 2014 none of the underlying defendants appeared and
8 the trial was conducted as an uncontested trial. The Court awarded judgment to the
9 remaining Claimants and against all of the remaining defendants in the amount of
10 $17,280,966.37.
11 18. On April 2, 2014 the Court entered judgment. The April 2, 2014 judgment
12 awarded special damages of $4,669,937.34, which was the collective loan amount of all
13 of the loans fraudulently obtained by the defendants, minus the money recovered by
14 Claimants when the land was resold by Claimants as part of their efforts to mitigate their
15 damages. In addition, the court awarded prejudgment interest, statutory and general
16 damages for those Claimants who were “elders”, attorneys’ fees, costs, and punitive
17 damages. The total judgment was $17,280,966.37.
18 19. Mr. Abel received an award as to him of $123,877.70 in the April 2, 2014
19 judgment.
20 20. Following the April 2014 judgment, Mr. Abel stated that at least some of the
21 Claimants had assigned their claims to him, but he was not specific as to whom or when
22 the assignments occurred. The existence of claim assignments and the timing of the
23 assignments is an important fact and Mr. McCutchan made the correct inquiries regarding
24 those purported assignments.
25 21. Mr. McCutchan contacted Mr. Abel and requested notarized copies of the
26 assignments, demonstrating that the assignments had been made prior to the various
27 Claimants’ dismissals. Mr. McCutchan even provided to Mr. Abel a form to use. Mr. Abel
28 never provided the requested assignments to Mr. McCutchan. In fact, in a May 29, 2014
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
__________________________________
2300 Contra Costa Blvd., 6
Suite 350 SCV263456: DECLARATION OF PAUL W. WINDUST, IN SUPPORT OF DEFENDANTS
Pleasant Hill, CA 94523
956-10761/ATS/1170169
(925) 930-9090 MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY
ADJUDICATION
1 email to Mr. McCutchan, Mr. Abel responded stating that he did not have any assignments
2 and that Claimants that dismissed their claims were not interested in signing any
3 assignments. In response, Mr. McCutchan told Mr. Abel that unless the former Claimants
4 assign their claims to him per the form assignment drafted for him as a courtesy in the
5 Spring of 2014, they would get nothing in collection and the judgment would only be split
6 between remaining active Claimants.
7 22. Mr. Zuckerman brought a motion to set aside the April 2014 judgment based
8 on an argument that the March 27, 2014 set trial date was in fact a default judgment
9 prove-up hearing, as opposed to an unopposed trial. He argued that because the second
10 amended complaint did not state a specific dollar amount that each of Plaintiff sought in
11 damages, the court was without jurisdiction to make such a damages award despite the
12 fact that Mr. McCutchan had appeared for trial call on a set trial date. On July 8, 2014 the
13 Court vacated the 2014 judgment. The other remaining defendants did not move to set
14 aside and the April 2014 judgment remains enforceable against them.
15 23. The Court’s decision to conduct a prove-up hearing was contrary to the fact
16 that Mr. McCutchan appeared for trial and was prepared to proceed. Mr. McCutchan did
17 not amend the complaint prior to trial, but that is not a breach of the standard of care
18 because (1) he did not know in advance that the Court to proceed by way of a prove-up
19 hearing; (2) he did not know in advance that the defendants would fail to appear for trial,
20 and (3) did not know that the Court would later vacate the Judgment based on its decision
21 to hold default prove up hearing instead of an uncontested trial.
22 24. Mr. McCutchan then filed a Third Amended complaint. He also filed, on
23 October 28, 2014, an amendment to the TAC which alleged that Mr. Abel was the owner
24 of Abel’s claimed assignments. As noted by Mr. McCutchan, he filed this amendment
25 based on Mr. Abel’s representations that he had obtained assignments from the
26 individuals that abandoned their claims and that he obtained those assignments before
27 they dismissed their claims.
28 25. Mr. Zuckerman demurred to the TAC, and the demurrer was overruled.
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
__________________________________
2300 Contra Costa Blvd., 7
Suite 350 SCV263456: DECLARATION OF PAUL W. WINDUST, IN SUPPORT OF DEFENDANTS
Pleasant Hill, CA 94523
956-10761/ATS/1170169
(925) 930-9090 MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY
ADJUDICATION
1 26. On January 2, 2015; the second trialin Liebling Action took place against
2 Mr. Zuckerman. Mr. Zuckerman failed to appear at the second trial, and trial proceeded
3 as an uncontested trial. The court awarded judgment to Claimants.
4 27. Judgment was entered on January 5, 2015 (the "2015 Judgment") against
5 Mr. Zuckerman only, in the amount of $20,989,591.99
6 28. Mr. Abel received an award of $159,500.12 in the 2015 Judgment.
7 29. On July 7, 2015, Mr. Zuckerman's attorney Raul Garcia brought a post-trial
8 motion to vacate the 2015 Judgment pursuant to CCP §473(b) on grounds of mistake,
9 inadvertence, or surprise. According to Mr. Garcia, he "failed to calendar" the trial date.
10 The court granted the motion and vacated the 2015 judgment against Mr. Zuckerman.
11 Vacation of the Judgment is not evidence of a breach of the standard of care by Mr.
12 McCutchan because Courts are generally inclined to grant motions for §473 relief. The
13 reason the judgment was vacated had nothing to do with any negligence on that part of
14 SUNDERLAND | McCUTCHAN, LLP and its attorneys.
15 30. The Court set the date for a third trial for September 30, 2016
16 31. Prior to the third trial, Mr. Zuckerman brought a motion to dismiss the
17 Liebling Action pursuant to CCP §583.340 on grounds that the litigation had exceeded
18 five years. Mr. McCutchan opposed the Motion and the Motion was denied.
19 32. Prior to the third trial Mr. McCutchan requested that Mr. Abel bring his
20 purported assignments to Court for the trial. Mr. Abel failed to bring the requested
21 assignments. As a result, Mr. McCutchan could not have included those purported
22 assignment in the third trial and it is not a breach of care to exclude them. If Mr. Abel had
23 evidence of the claimed assignments, he should have brought those assignments to Mr.
24 McCutchan as requested, or he could have brought a motion following the judgment to
25 amend the judgment reflecting those assignments.
26 33. On September 30, 2016, the third trial in the Liebling Action commenced. Mr.
27 Garcia appeared on behalf of Mr. Zuckerman at trial call on that day.
28
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
__________________________________
2300 Contra Costa Blvd., 8
Suite 350 SCV263456: DECLARATION OF PAUL W. WINDUST, IN SUPPORT OF DEFENDANTS
Pleasant Hill, CA 94523
956-10761/ATS/1170169
(925) 930-9090 MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY
ADJUDICATION
1 34. According to Mr. McCutchan, at trial call for the third trial, Mr. Garcia argued
2 a motion in Limine based on the five-year statute CCP §583.340. After the Court denied
3 the motion, Mr. Garcia walked out the door and did not return. Mr. Zuckerman did not put
4 on a defense. The third trial proceeded as an uncontested trial. The court awarded
5 judgment to the Claimants on the Liebling matter. Following trial Mr. McCutchan
6 submitted a proposed judgment to the court and he noted that he personally sat in Judge
7 Chouteau’s chambers going over with him how he wanted the final judgment to read
8 where a revised proposed judgment was sent to Judge Chouteau for signature, dating
9 and filing.
10 35. On October 5, 2016, the Court entered judgment against Mr. Zuckerman in
11 the amount of $14,545,001.00. The Court approved and prepared the Judgment and this
12 was consistent with the standard of care.
13 36. Mr. Abel received an award of $76,261.48 in the 2016 Judgment.
14 37. Following entry of the 2016 Judgment, Mr. McCutchan appropriately
15 brought a motion for attorney's fees and a memorandum of costs. There was no
16 opposition, the court granted the motion, and awarded attorney's fees of $565,375 and
17 costs of $24,719.95.
18 38. On March 20, 2017, an amended judgment against Mr. Zuckerman was
19 entered nunc pro tunc (the "2017 Judgment"). The 2017 Judgment added attorney's fees
20 and costs in one lump sum to the total amount of the judgment.
21 39. SUNDERLAND | McCUTCHAN, LLP and Claimants agreed that the fee
22 agreement expired upon entry of judgment. Soon after the March 20, 2017 amended
23 judgment, Mr. McCutchan proposed new fee agreement for collection to the Claimants in
24 the Liebling action for collection purposes. Mr. Abel did not agree to the collection
25 agreement, and on November 8, 2017 substituted himself in as pro per.
26 40. The Judgments contained a mathematical error in calculating the amount
27 of Mr. Abel’s share of the Judgments.1.20435% of $5,299,874.68 is $63,829.04, not
28 $44,006.10 that is shown in the judgments.
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
__________________________________
2300 Contra Costa Blvd., 9
Suite 350 SCV263456: DECLARATION OF PAUL W. WINDUST, IN SUPPORT OF DEFENDANTS
Pleasant Hill, CA 94523
956-10761/ATS/1170169
(925) 930-9090 MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY
ADJUDICATION
1 41. An attorney is not liable for every mistake he may make in his practice; he
2 is not, in the absence of an express agreement, an insurer of the soundness of his
3 opinions or of the validity of an instrument that he is engaged to draft; and he is not liable
4 for being in error as to a question of law or errors in completing calculations, provided
5 those are errors that a reasonably careful attorney could make under the same
6 circumstances. In this case, the Liebling matter was a complex action with a multitude of
7 defendants that dismissed their claims throughout the case. Errors in perfecting the
8 judgment can be corrected and corrected by the attorney. Under these circumstances it
9 was not a violation of the standard of care for Mr. McCutchan to make the mathematical
10 errors he made in preparation of the judgment, and he acted in conformity with the
11 standard of care in correcting the judgment.
12 42. On August 7, 2019, Mr. McCutchan filed a Motion for Relief from Mr.
13 Zuckerman’s Bankruptcy Stay to allow him to file a Motion to Amend the March 20, 2017
14 Judgment.
15 43. On October 24, 2019, Mr. McCutchan filed a Motion to Amend the
16 Judgment. Mr. McCutchan requested that the Court amend the Judgment changing Mr.
17 Abel's special damages from $76,261.48 to $96,081.77, because of the mathematical
18 calculation error in the October 6, 2016 and March 20, 2017 judgments, and removing
19 from the Claimants who had dismissed their claims before judgment was entered,
20 44. Mr. McCutchan submitted a proposed second amended judgment, which
21 was entered by the Court on August 4, 2021. This was consistent with the standard of
22 care for an attorney. At this time (and since the judgment in 2017) Mr. Abel was no longer
23 represented by Mr. McCutchan. If Abel had valid assignments, he could have filed those
24 and asked the Court to amend the Judgment to award a greater percentage of the claims
25 to him. The fact that he has made that request indicates that he does not have valid
26 assignments. Mr. McCutchan would have breached the standard of care had he included
27 those claimed assignments in the judgments he prepared. Mr. McCutchan complied with
28
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
__________________________________
2300 Contra Costa Blvd., 10
Suite 350 SCV263456: DECLARATION OF PAUL W. WINDUST, IN SUPPORT OF DEFENDANTS
Pleasant Hill, CA 94523
956-10761/ATS/1170169
(925) 930-9090 MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY
ADJUDICATION
1 the standard of care by not including any of the claimed and unverified assignments in
2 any of the judgments he prepared in the Liebling action.
3 45. According to Mr. McCutchan, Mr. Abel paid no more than $10,000 in fees
4 for representation in the Liebling action. Mr. Abel received his share of the settlements
5 reached with the Broker defendant and with the Reeder defendants. Mr. McCutchan and
6 his firm have not recovered attorney fees based on the judgments after trial. The only
7 amount received in payment to SUNDERLAND | McCUTCHAN, LLP were the fees and
8 costs paid by the clients during the nine years that this case was litigated, the two
9 settlements, and Robert Zuckerman’s $8,135.00 sanction payment.
10 46. The amount paid by Mr. Abel to SUNDERLAND | McCUTCHAN, LLP is less
11 then what is owed to SUNDERLAND | McCUTCHAN, LLP in fair compensation for the
12 legal services provided to him. Even if the fee agreement that Mr. Abel entered into with
13 SUNDERLAND | McCUTCHAN, LLP was determined to be void, he would still be required
14 to pay the reasonable value of services under the theory of quantum meruit. Mr. Abel
15 has an enforceable judgment against multiple underlying defendants. If Mr. Abel paid for
16 the reasonable value of services provided, he would owe SUNDERLAND | McCUTCHAN,
17 LLP an amount equal to or greater than what he actually paid to SUNDERLAND |
18 McCUTCHAN, LLP in attorney fees.
19 47. On May 4, 2018, Mr. Zuckerman filed a petition for relief pursuant to Chapter
20 11 in the United States Bankruptcy Court, Central District Bankruptcy Court in case# 1:
21 18-bk-11150-VK and notice of such was filed in the Liebling v. Goodrich action.
22 48. On January 28, 2022, the Central District Bankruptcy Court in case# 1:18-
23 bk-11150-VK issued an order of discharge of liability under 11 U.S.C. section 727.
24 Including the assignments in the Judgment would not have changed or improved the
25 collectability against Mr. Zuckerman given his asset situation and now his Bankruptcy
26 discharge from the entire Judgment.
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GALLOWAY, LUCCHESE,
EVERSON & PICCHI
__________________________________
2300 Contra Costa Blvd., 11
Suite 350 SCV263456: DECLARATION OF PAUL W. WINDUST, IN SUPPORT OF DEFENDANTS
Pleasant Hill, CA 94523
956-10761/ATS/1170169
(925) 930-9090 MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY
ADJUDICATION
1 I declare under penalty of perjury under the laws of the State of California that the
2 foregoing is true and correct.
3 Executed this 16th day of November, 2022 at Walnut Creek, California.
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Paul W. Windust
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GALLOWAY, LUCCHESE,
EVERSON & PICCHI __________________________________ 12
SCV263456:
2300 Contra Costa Blvd., DECLARATION OF PAUL W. WINDUST, IN SUPPORT OF DEFENDANTS B. 956-10761/ATS/1170169
Suite 350 EDWARD MCCUTCHAN, JR.; ROBERT J. SUNDERLAND; AND SUNDERLAND |
Pleasant Hill, CA 94523
(925) 930-9090 MCCUTCHAN, LLP’S MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE
SUMMARY ADJUDICATION
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1 JOSEPH S. PICCHI, ESQ. (State Bar No. 157102) ALEXANDER D. PROMM, ESQ. (State Bar No. 318412) 2 GALLOWAY, LUCCHESE, EVERSON & PICCHI A Professional Corporation 3 2300 Contra Costa Blvd., Suite 350 Pleasant Hill, CA 94523-2398 4 Tel. No. (925) 930-9090 Fax No. (925) 930-9035 5 E-mail: jpicchi@glattys.com; apromm@glattys.com 6 Attorneys for Defendants B. EDWARD McCUTCHAN, JR.; ROBERT J. SUNDERLAND; SUNDERLAND | 7 McCUTCHAN, LLP and SUNDERLAND | MCCUTCHAN, INC. 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SONOMA 10 RICHARD ABEL, an individual, Case No. SCV263456 11 Plaintiff, The Honorable Christopher Honigsberg 12 vs. DECLARATION OF PAUL W. WINDUST, 13 B. EDWARD McCUTCHAN JR., an IN SUPPORT OF DEFENDANTS individual; SUNDERLAND/McCUTCHAN, MOTIONS FOR SUMMARY JUDGMENT 14 LLP, a general partnership; and DOES 1 OR IN THE ALTERNATIVE SUMMARY through 100, inclusive, ADJUDICATION 15 Defendants. 16 Date: Time: 17 Dept: 18 18 Date Complaint Filed: November 2, 2018 Trial: March 10, 2023 19 20 21 I, PAUL W. WINDUST, ESQ. declare as follows: 22 1. 1. I am an attorney at law duly licensed to practice before all the courts 23 in the State of California. 24 2. I make this declaration on behalf of Defendants B. EDWARD 25 MCCUTCHAN, JR.; ROBERT J. SUNDERLAND; SUNDERLAND | MCCUTCHAN, LLP 26 AND SUNDERLAND | MCCUTCHAN, INC. in support of the instant Motion for Summary 27 Judgment or in the alternative Summary Adjudication based on my education, experience 28 and upon my review of the First Amended Complaint in this action, the Declaration of Mr. GALLOWAY, LUCCHESE, EVERSON & PICCHI __________________________________ 2300 Contra Costa Blvd., 1 Suite 350 SCV263456: DECLARATION OF PAUL W. WINDUST, IN SUPPORT OF DEFENDANTS Pleasant Hill, CA 94523 956-10761/ATS/1170169 (925) 930-9090 MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION 1 Amended Complaint in this action, the Declaration of Mr. McCutchan and underlying case 2 file, including but not limited to the correspondence to clients, pleadings, and judgments. 3 If called as a witness, I could and would competently testify to the opinions contained 4 within this declaration. In forming my opinions as to whether or not Defendants complied 5 with the standard of care for an attorney, I am basing my opinion on whether Defendants 6 used the skill and care that a reasonably careful attorney would have used in similar 7 circumstances. 8 3. It is my understanding that this is an action filed by Plaintiff in pro per against 9 his former attorney, Edward McCutchan and SUNDERLAND | McCUTCHAN, LLP. The 10 underlying matter from which this case arises was the matter of Liebling, et.al. v. 11 Goodrich, et al., Case No. SCV-245738 (the Liebling Action”). According to the allegations 12 in the Complaint, the Liebling Action commenced on August 25, 2009, with ninety-seven 13 (97) plaintiffs and twenty-eight (28) defendants. There were three (3) trials in the case, 14 and the final trial occurred on October 5, 2016. The Complaint alleges that a judgment of 15 $14,545,001 was entered on October 5, 2016. 16 4. According to the Declaration of Mr. McCutchan, in early 2009, Michael 17 Maloney, a former associate with SUNDERLAND | McCUTCHAN, LLP was contacted by 18 an investor about a loan made in connection with a real estate development in Malibu, 19 CA. He was informed that several lenders loaned the borrower, Robert E. Zuckerman as 20 president of Malibu Greene 3 Corporation, a Nevada Corporation, and money for 21 development of property in Southern California. Mortgage Brokers for the loan were 22 Charlene Goodrich Loan Servicing, Inc. (CGLS). The escrow closer was Fidelity National 23 Title Company. He was informed that no payments had been made from the borrowers, 24 and that they were in default. Robert E. Zuckerman was the main borrower. 25 5. As noted by Mr. McCutchan, generally at issue in the case were four large 26 parcels, totaling 174 acres, in the hills overlooking Pacific Coast Highway off Decker 27 Canyon and Corral Canyon roads. The properties were subdivided into 13 parcels. 28 Investors were told that homes of up to 10,000-square-feet could be built on each one, GALLOWAY, LUCCHESE, EVERSON & PICCHI __________________________________ 2300 Contra Costa Blvd., 2 Suite 350 SCV263456: DECLARATION OF PAUL W. WINDUST, IN SUPPORT OF DEFENDANTS Pleasant Hill, CA 94523 956-10761/ATS/1170169 (925) 930-9090 MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION 1 according to the offering circulars. Information provided to investors indicated that the 2 land had been appraised in mid-2005 for nearly $13 million. 3 6. Charlene Goodrich solicited investors for loans on the properties twice, 4 once in early 2005 to fund construction and again about six months later to refinance the 5 first loans, according to investors’ documents. Investors learned of the investment 6 opportunities through advertisements that Charlene Goodrich placed in Northern 7 California newspapers and on radio shows offering high returns. 8 7. The borrowers were a group of partnerships registered in Nevada, with 9 names such as Greene Broad Beach and Malibu Beach View, according to 10 documentation Goodrich sent investors. The crux of the case was that there was no 11 California Coastal Commission recorded approval on the 13 assessor parcels to make 12 them 13 legal separate parcels. That meant that at most four homes could be built, not 13 13, reducing the value of the properties exponentially. It was Defendants’ analysis that 14 Robert Zuckerman, John Cruikshank and Peter Skarpias knew this before obtaining the 15 loans and that Mr. Zuckerman submitted documents for his desired loan from the Sonoma 16 County Investors. Whether the other named defendants were aware that the California 17 Coastal Commission had not approved the 13 parcels was not clear at the outset of the 18 case. Discovery during the case did not establish a clear breach of duty as to those 19 defendants. 20 8. Prior to filing the complaint in the Liebling matter, Mr. McCutchan met with 21 the Claimants and they ultimately each signed a fee agreement and cooperation 22 agreement, including Plaintiff in this matter, Richard Abel. This followed the standard of 23 care. The fee agreements each contained a conflict waiver. In a case such as this the 24 most practical way is to proceed is with a single attorney representing all of the claimants 25 in a single action. Although there is always a potential conflict when the same counsel 26 represents multiple claimants, this does not prohibit representation if the potential conflict 27 is identified and the clients sign a written waiver. 28 GALLOWAY, LUCCHESE, EVERSON & PICCHI __________________________________ 2300 Contra Costa Blvd., 3 Suite 350 SCV263456: DECLARATION OF PAUL W. WINDUST, IN SUPPORT OF DEFENDANTS Pleasant Hill, CA 94523 956-10761/ATS/1170169 (925) 930-9090 MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION 1 9. The fee agreement provided for a hybrid fee arrangement. The fee 2 arrangement was $250.00 per hour and 15% of any recovery to the group. The fee 3 arrangement was reasonable for the scope of work to be performed by SUNDERLAND | 4 MCCUTCHAN and its attorneys. The agreement and the terms of the agreement were 5 consistent with the standard of care. 6 10. It should be noted that the language in the fee agreement did not comply 7 with California Business and Professions Code section 6147. A 2010 Appellate Court 8 case, Arnall v. Superior Court, (2010) 190 Cal.App.4th 360, 371, ruled that Section 6147 9 applied to hybrid contingency fee agreements. Pursuant to that decision additional 10 language set forth in Section 6147 needed to have been included in the fee agreement. 11 However, the fact that this language was not included in the agreement did not impact 12 the services provided by SUNDERLAND | MCCUTCHAN to Claimants or damage 13 Claimants in anyway. At most, it would only be adverse to SUNDERLAND | 14 MCCUTCHAN’s claim for attorney fees from the Claimants. If the fee agreement were 15 void, SUNDERLAND | MCCUTCHAN and its attorneys would only be entitled to recover 16 fees based on the reasonable value of their services. 17 The formation of the attorney client relationship, the contract, and the 18 determination that group representation would be best suited for this matter was all within 19 the standard of care. 20 11. From my review of the file materials, it is apparent that SUNDERLAND | 21 MCCUTCHAN and its attorneys provided regular status updates and billing explanations. 22 These were sufficient to keep the clients informed of the case status, proposed strategies, 23 and provided an opportunity for all of the clients to provide feedback to the attorneys or 24 ask additional questions. These reports continued throughout the pendency of the case, 25 which was nearly 8 years (from May 2009 past the time judgment was entered in April of 26 2017). SUNDERLAND | MCCUTCHAN and its attorneys’ communications with their 27 clients, including Mr. Abel, during this time period complied with the standard of care. 28 GALLOWAY, LUCCHESE, EVERSON & PICCHI __________________________________ 2300 Contra Costa Blvd., 4 Suite 350 SCV263456: DECLARATION OF PAUL W. WINDUST, IN SUPPORT OF DEFENDANTS Pleasant Hill, CA 94523 956-10761/ATS/1170169 (925) 930-9090 MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION 1 12. During the pendency of the case, Mr. McCutchan and his office engaged in 2 significant discovery and motion practice. According to Mr. McCutchan, they also 3 conducted asset searches and research with respect to the claim in order to identify those 4 persons and entities responsible for the misconduct and who had sufficient assets to allow 5 recovery. Based upon Mr. McCutchan’s research into the claims it was his belief that 6 underlying defendants Robert Zuckerman, John Cruikshank and Peter Skarpias were 7 responsible for misleading the investors and the most culpable. These defendants were 8 the contact persons according to Ms. Goodrich and Mr. Zuckerman had submitted his 9 C.V. to Charlene Goodrich and represented himself as the Principal player to get a loan 10 for the Malibu project. 11 13. The other Liebling defendants had limited involvement and no clear liability, 12 and/or had sought bankruptcy protection. These underlying defendants were therefore 13 dismissed to allow Mr. McCutchan to pursue the most culpable defendants with assets. 14 14. In his Declaration, Mr. McCutchan describes that the underlying basis for 15 the claim was Mr. Zuckerman’s fraud in representing that the California Coastal 16 Commission approved the 13 assessor parcels to make them 13 legal separate parcels 17 when in fact it had not. Mr. McCutchan explains why the other initial underlying defendants 18 were dismissed in order to focus the case on those that he understood to be the 19 responsible parties. This decision ultimately resulted in a large verdict. Mr. McCutchan’s 20 strategy and decision to dismiss those individuals and entities identified in his Declaration 21 was based on his judgment as the attorney in this matter and was not a violation of the 22 standard of care. 23 15. In addition, while the case proceeded several of the Claimants decided that 24 they no longer wanted to be part of the case. When this occurred, Mr. McCutchan would 25 arrange for them to dismiss their individual claims in exchange for cost waivers. It is 26 important to note that Mr. Abel was informed of the dismissals as part of the weekly status 27 letters, which also included a list of the current Claimants. Mr. Abel never told Mr. 28 GALLOWAY, LUCCHESE, EVERSON & PICCHI __________________________________ 2300 Contra Costa Blvd., 5 Suite 350 SCV263456: DECLARATION OF PAUL W. WINDUST, IN SUPPORT OF DEFENDANTS Pleasant Hill, CA 94523 956-10761/ATS/1170169 (925) 930-9090 MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION 1 McCutchan that he sought or that he received any assignments from the Claimants that 2 dismissed their claims. 3 16. According to my review of the case file, the case proceeded through 4 discovery with Mr. McCutchan conducting written discovery, opposing demurrers and 5 motions to change venue, and he prepared the case for the initial trial which was set to 6 being in March 2014. Ultimately, that trial resulted in judgment in favor of Claimants 7 17. At trial on March 27, 2014 none of the underlying defendants appeared and 8 the trial was conducted as an uncontested trial. The Court awarded judgment to the 9 remaining Claimants and against all of the remaining defendants in the amount of 10 $17,280,966.37. 11 18. On April 2, 2014 the Court entered judgment. The April 2, 2014 judgment 12 awarded special damages of $4,669,937.34, which was the collective loan amount of all 13 of the loans fraudulently obtained by the defendants, minus the money recovered by 14 Claimants when the land was resold by Claimants as part of their efforts to mitigate their 15 damages. In addition, the court awarded prejudgment interest, statutory and general 16 damages for those Claimants who were “elders”, attorneys’ fees, costs, and punitive 17 damages. The total judgment was $17,280,966.37. 18 19. Mr. Abel received an award as to him of $123,877.70 in the April 2, 2014 19 judgment. 20 20. Following the April 2014 judgment, Mr. Abel stated that at least some of the 21 Claimants had assigned their claims to him, but he was not specific as to whom or when 22 the assignments occurred. The existence of claim assignments and the timing of the 23 assignments is an important fact and Mr. McCutchan made the correct inquiries regarding 24 those purported assignments. 25 21. Mr. McCutchan contacted Mr. Abel and requested notarized copies of the 26 assignments, demonstrating that the assignments had been made prior to the various 27 Claimants’ dismissals. Mr. McCutchan even provided to Mr. Abel a form to use. Mr. Abel 28 never provided the requested assignments to Mr. McCutchan. In fact, in a May 29, 2014 GALLOWAY, LUCCHESE, EVERSON & PICCHI __________________________________ 2300 Contra Costa Blvd., 6 Suite 350 SCV263456: DECLARATION OF PAUL W. WINDUST, IN SUPPORT OF DEFENDANTS Pleasant Hill, CA 94523 956-10761/ATS/1170169 (925) 930-9090 MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION 1 email to Mr. McCutchan, Mr. Abel responded stating that he did not have any assignments 2 and that Claimants that dismissed their claims were not interested in signing any 3 assignments. In response, Mr. McCutchan told Mr. Abel that unless the former Claimants 4 assign their claims to him per the form assignment drafted for him as a courtesy in the 5 Spring of 2014, they would get nothing in collection and the judgment would only be split 6 between remaining active Claimants. 7 22. Mr. Zuckerman brought a motion to set aside the April 2014 judgment based 8 on an argument that the March 27, 2014 set trial date was in fact a default judgment 9 prove-up hearing, as opposed to an unopposed trial. He argued that because the second 10 amended complaint did not state a specific dollar amount that each of Plaintiff sought in 11 damages, the court was without jurisdiction to make such a damages award despite the 12 fact that Mr. McCutchan had appeared for trial call on a set trial date. On July 8, 2014 the 13 Court vacated the 2014 judgment. The other remaining defendants did not move to set 14 aside and the April 2014 judgment remains enforceable against them. 15 23. The Court’s decision to conduct a prove-up hearing was contrary to the fact 16 that Mr. McCutchan appeared for trial and was prepared to proceed. Mr. McCutchan did 17 not amend the complaint prior to trial, but that is not a breach of the standard of care 18 because (1) he did not know in advance that the Court to proceed by way of a prove-up 19 hearing; (2) he did not know in advance that the defendants would fail to appear for trial, 20 and (3) did not know that the Court would later vacate the Judgment based on its decision 21 to hold default prove up hearing instead of an uncontested trial. 22 24. Mr. McCutchan then filed a Third Amended complaint. He also filed, on 23 October 28, 2014, an amendment to the TAC which alleged that Mr. Abel was the owner 24 of Abel’s claimed assignments. As noted by Mr. McCutchan, he filed this amendment 25 based on Mr. Abel’s representations that he had obtained assignments from the 26 individuals that abandoned their claims and that he obtained those assignments before 27 they dismissed their claims. 28 25. Mr. Zuckerman demurred to the TAC, and the demurrer was overruled. GALLOWAY, LUCCHESE, EVERSON & PICCHI __________________________________ 2300 Contra Costa Blvd., 7 Suite 350 SCV263456: DECLARATION OF PAUL W. WINDUST, IN SUPPORT OF DEFENDANTS Pleasant Hill, CA 94523 956-10761/ATS/1170169 (925) 930-9090 MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION 1 26. On January 2, 2015; the second trialin Liebling Action took place against 2 Mr. Zuckerman. Mr. Zuckerman failed to appear at the second trial, and trial proceeded 3 as an uncontested trial. The court awarded judgment to Claimants. 4 27. Judgment was entered on January 5, 2015 (the "2015 Judgment") against 5 Mr. Zuckerman only, in the amount of $20,989,591.99 6 28. Mr. Abel received an award of $159,500.12 in the 2015 Judgment. 7 29. On July 7, 2015, Mr. Zuckerman's attorney Raul Garcia brought a post-trial 8 motion to vacate the 2015 Judgment pursuant to CCP §473(b) on grounds of mistake, 9 inadvertence, or surprise. According to Mr. Garcia, he "failed to calendar" the trial date. 10 The court granted the motion and vacated the 2015 judgment against Mr. Zuckerman. 11 Vacation of the Judgment is not evidence of a breach of the standard of care by Mr. 12 McCutchan because Courts are generally inclined to grant motions for §473 relief. The 13 reason the judgment was vacated had nothing to do with any negligence on that part of 14 SUNDERLAND | McCUTCHAN, LLP and its attorneys. 15 30. The Court set the date for a third trial for September 30, 2016 16 31. Prior to the third trial, Mr. Zuckerman brought a motion to dismiss the 17 Liebling Action pursuant to CCP §583.340 on grounds that the litigation had exceeded 18 five years. Mr. McCutchan opposed the Motion and the Motion was denied. 19 32. Prior to the third trial Mr. McCutchan requested that Mr. Abel bring his 20 purported assignments to Court for the trial. Mr. Abel failed to bring the requested 21 assignments. As a result, Mr. McCutchan could not have included those purported 22 assignment in the third trial and it is not a breach of care to exclude them. If Mr. Abel had 23 evidence of the claimed assignments, he should have brought those assignments to Mr. 24 McCutchan as requested, or he could have brought a motion following the judgment to 25 amend the judgment reflecting those assignments. 26 33. On September 30, 2016, the third trial in the Liebling Action commenced. Mr. 27 Garcia appeared on behalf of Mr. Zuckerman at trial call on that day. 28 GALLOWAY, LUCCHESE, EVERSON & PICCHI __________________________________ 2300 Contra Costa Blvd., 8 Suite 350 SCV263456: DECLARATION OF PAUL W. WINDUST, IN SUPPORT OF DEFENDANTS Pleasant Hill, CA 94523 956-10761/ATS/1170169 (925) 930-9090 MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION 1 34. According to Mr. McCutchan, at trial call for the third trial, Mr. Garcia argued 2 a motion in Limine based on the five-year statute CCP §583.340. After the Court denied 3 the motion, Mr. Garcia walked out the door and did not return. Mr. Zuckerman did not put 4 on a defense. The third trial proceeded as an uncontested trial. The court awarded 5 judgment to the Claimants on the Liebling matter. Following trial Mr. McCutchan 6 submitted a proposed judgment to the court and he noted that he personally sat in Judge 7 Chouteau’s chambers going over with him how he wanted the final judgment to read 8 where a revised proposed judgment was sent to Judge Chouteau for signature, dating 9 and filing. 10 35. On October 5, 2016, the Court entered judgment against Mr. Zuckerman in 11 the amount of $14,545,001.00. The Court approved and prepared the Judgment and this 12 was consistent with the standard of care. 13 36. Mr. Abel received an award of $76,261.48 in the 2016 Judgment. 14 37. Following entry of the 2016 Judgment, Mr. McCutchan appropriately 15 brought a motion for attorney's fees and a memorandum of costs. There was no 16 opposition, the court granted the motion, and awarded attorney's fees of $565,375 and 17 costs of $24,719.95. 18 38. On March 20, 2017, an amended judgment against Mr. Zuckerman was 19 entered nunc pro tunc (the "2017 Judgment"). The 2017 Judgment added attorney's fees 20 and costs in one lump sum to the total amount of the judgment. 21 39. SUNDERLAND | McCUTCHAN, LLP and Claimants agreed that the fee 22 agreement expired upon entry of judgment. Soon after the March 20, 2017 amended 23 judgment, Mr. McCutchan proposed new fee agreement for collection to the Claimants in 24 the Liebling action for collection purposes. Mr. Abel did not agree to the collection 25 agreement, and on November 8, 2017 substituted himself in as pro per. 26 40. The Judgments contained a mathematical error in calculating the amount 27 of Mr. Abel’s share of the Judgments.1.20435% of $5,299,874.68 is $63,829.04, not 28 $44,006.10 that is shown in the judgments. GALLOWAY, LUCCHESE, EVERSON & PICCHI __________________________________ 2300 Contra Costa Blvd., 9 Suite 350 SCV263456: DECLARATION OF PAUL W. WINDUST, IN SUPPORT OF DEFENDANTS Pleasant Hill, CA 94523 956-10761/ATS/1170169 (925) 930-9090 MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION 1 41. An attorney is not liable for every mistake he may make in his practice; he 2 is not, in the absence of an express agreement, an insurer of the soundness of his 3 opinions or of the validity of an instrument that he is engaged to draft; and he is not liable 4 for being in error as to a question of law or errors in completing calculations, provided 5 those are errors that a reasonably careful attorney could make under the same 6 circumstances. In this case, the Liebling matter was a complex action with a multitude of 7 defendants that dismissed their claims throughout the case. Errors in perfecting the 8 judgment can be corrected and corrected by the attorney. Under these circumstances it 9 was not a violation of the standard of care for Mr. McCutchan to make the mathematical 10 errors he made in preparation of the judgment, and he acted in conformity with the 11 standard of care in correcting the judgment. 12 42. On August 7, 2019, Mr. McCutchan filed a Motion for Relief from Mr. 13 Zuckerman’s Bankruptcy Stay to allow him to file a Motion to Amend the March 20, 2017 14 Judgment. 15 43. On October 24, 2019, Mr. McCutchan filed a Motion to Amend the 16 Judgment. Mr. McCutchan requested that the Court amend the Judgment changing Mr. 17 Abel's special damages from $76,261.48 to $96,081.77, because of the mathematical 18 calculation error in the October 6, 2016 and March 20, 2017 judgments, and removing 19 from the Claimants who had dismissed their claims before judgment was entered, 20 44. Mr. McCutchan submitted a proposed second amended judgment, which 21 was entered by the Court on August 4, 2021. This was consistent with the standard of 22 care for an attorney. At this time (and since the judgment in 2017) Mr. Abel was no longer 23 represented by Mr. McCutchan. If Abel had valid assignments, he could have filed those 24 and asked the Court to amend the Judgment to award a greater percentage of the claims 25 to him. The fact that he has made that request indicates that he does not have valid 26 assignments. Mr. McCutchan would have breached the standard of care had he included 27 those claimed assignments in the judgments he prepared. Mr. McCutchan complied with 28 GALLOWAY, LUCCHESE, EVERSON & PICCHI __________________________________ 2300 Contra Costa Blvd., 10 Suite 350 SCV263456: DECLARATION OF PAUL W. WINDUST, IN SUPPORT OF DEFENDANTS Pleasant Hill, CA 94523 956-10761/ATS/1170169 (925) 930-9090 MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION 1 the standard of care by not including any of the claimed and unverified assignments in 2 any of the judgments he prepared in the Liebling action. 3 45. According to Mr. McCutchan, Mr. Abel paid no more than $10,000 in fees 4 for representation in the Liebling action. Mr. Abel received his share of the settlements 5 reached with the Broker defendant and with the Reeder defendants. Mr. McCutchan and 6 his firm have not recovered attorney fees based on the judgments after trial. The only 7 amount received in payment to SUNDERLAND | McCUTCHAN, LLP were the fees and 8 costs paid by the clients during the nine years that this case was litigated, the two 9 settlements, and Robert Zuckerman’s $8,135.00 sanction payment. 10 46. The amount paid by Mr. Abel to SUNDERLAND | McCUTCHAN, LLP is less 11 then what is owed to SUNDERLAND | McCUTCHAN, LLP in fair compensation for the 12 legal services provided to him. Even if the fee agreement that Mr. Abel entered into with 13 SUNDERLAND | McCUTCHAN, LLP was determined to be void, he would still be required 14 to pay the reasonable value of services under the theory of quantum meruit. Mr. Abel 15 has an enforceable judgment against multiple underlying defendants. If Mr. Abel paid for 16 the reasonable value of services provided, he would owe SUNDERLAND | McCUTCHAN, 17 LLP an amount equal to or greater than what he actually paid to SUNDERLAND | 18 McCUTCHAN, LLP in attorney fees. 19 47. On May 4, 2018, Mr. Zuckerman filed a petition for relief pursuant to Chapter 20 11 in the United States Bankruptcy Court, Central District Bankruptcy Court in case# 1: 21 18-bk-11150-VK and notice of such was filed in the Liebling v. Goodrich action. 22 48. On January 28, 2022, the Central District Bankruptcy Court in case# 1:18- 23 bk-11150-VK issued an order of discharge of liability under 11 U.S.C. section 727. 24 Including the assignments in the Judgment would not have changed or improved the 25 collectability against Mr. Zuckerman given his asset situation and now his Bankruptcy 26 discharge from the entire Judgment. 27 28 GALLOWAY, LUCCHESE, EVERSON & PICCHI __________________________________ 2300 Contra Costa Blvd., 11 Suite 350 SCV263456: DECLARATION OF PAUL W. WINDUST, IN SUPPORT OF DEFENDANTS Pleasant Hill, CA 94523 956-10761/ATS/1170169 (925) 930-9090 MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION 1 I declare under penalty of perjury under the laws of the State of California that the 2 foregoing is true and correct. 3 Executed this 16th day of November, 2022 at Walnut Creek, California. 4 5 Paul W. Windust 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GALLOWAY, LUCCHESE, EVERSON & PICCHI __________________________________ 12 SCV263456: 2300 Contra Costa Blvd., DECLARATION OF PAUL W. WINDUST, IN SUPPORT OF DEFENDANTS B. 956-10761/ATS/1170169 Suite 350 EDWARD MCCUTCHAN, JR.; ROBERT J. SUNDERLAND; AND SUNDERLAND | Pleasant Hill, CA 94523 (925) 930-9090 MCCUTCHAN, LLP’S MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION