Preview
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 Email: 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.
AMENDED MEMORANDUM OF POINTS
13 B. EDWARD McCUTCHAN JR., an AND AUTHORITIES IN SUPPORT OF
individual; SUNDERLAND/McCUTCHAN, MOTION FOR SUMMARY JUDGMENT
14 LLP, a general partnership; and DOES 1 OF ON BEHALF DEFENDANTS
through 100, inclusive,
15
Defendants. Date: May 3, 2023
16 Time: 3:00 p.m.
Dept: 18
17
Date Complaint Filed: November 2, 2018
18 Trial: March 10, 2023
19
20
21
22
23
24
25
26
27
28
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
__________________________________
2300 Contra Costa Blvd., 1
Suite 350 SCV263456: AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1270266
Pleasant Hill, CA 94523
(925) 930-9090
MOTION FOR SUMMARY JUDGMENT OF ON BEHALF DEFENDANTS
1 TABLE OF CONTENTS
2
I. EXECUTIVE SUMMARY .............................................................................................. 7
3
II. INTRODUCTION ......................................................................................................... 7
4
III. STATEMENT OF FACTS ........................................................................................... 8
5
A. FACTUAL BACKGROUND OF UNDERLYING MATTER .......................... 8
6
1. Underlying Liebling Matter ............................................................... 8
7
2. Zuckerman Bankruptcy.................................................................. 16
8
3. As to Sunderland | McCutchan, Inc. .............................................. 18
9
B. PROCEDURAL BACKGROUND.............................................................. 19
10
IV. LEGAL AUTHORITY ................................................................................................ 20
11
A. SUMMARY JUDGMENT/ADJUDICATION STANDARD .......................... 20
12
B. NO DISPUTED FACT AS TO PLAINTIFF’S FIRST CAUSE OF
13 ACTION FOR LEGAL MALPRACTICE AND FOURTH CAUES OF
ACTION FOR BREACH OF FIDUCIARY DUTY ...................................... 21
14
1. To Support a Claim for Legal Malpractice, Plaintiff must
15 prove a breach of the standard of care and that the breach
was the proximate cause of Plaintiff’s damages ............................ 21
16
2. The undisputed facts demonstrate that McCutchan complied
17 with the standard of care. .............................................................. 22
18 a. Inception of the case ................................................................................ 22
19 b. Activities during the case. ........................................................................ 23
20 c. Claimed Assignments .............................................................................. 24
3. Plaintiff cannot prove that the but for some negligent act of
21 Defendants he would have obtained a better result. ..................... 25
22 C. THE UNDISPUTED FACTS DEMONSTRATE THAT PLAINTIFF
CANNOT PROVE HIS CAUSE OF ACTION FOR CONVERSION .......... 27
23
1. Assignments Are Not Property ...................................................... 27
24
2. McCutchan did not exercise any control or dominions of
25 funds secured by the Assignments ................................................ 28
26 3. Plaintiff has no evidence of any enforceable Assignments ............ 28
27 D. THE UNDISPUTED FACTS DEMONSTRATE THAT PLAINTIFF
CANNOT SUPPORT HIS THIRD CAUSE OF ACTION FOR
28 FRAUD..................................................................................................... 29
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
__________________________________
2300 Contra Costa Blvd., 2
Suite 350 SCV263456: AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1270266
Pleasant Hill, CA 94523
(925) 930-9090
MOTION FOR SUMMARY JUDGMENT OF ON BEHALF DEFENDANTS
1 1. Plaintiff cannot support his claim of Fraud related to the
Assignments. ................................................................................. 29
2
2. There is no claim for misrepresentation related to the
3 attorney fees.................................................................................. 30
4 E. THE UNDISPUTED FACTS DEMONSTRATE THAT PLAINTIFF
CANNOT PROVE HIS CAUSE OF ACTION FOR VIOLATION OF
5 BUSINESS AND PROFESSIONS CODE 17200, ET. SEQ. .................... 31
6 F. NO FACTS SUPPORTING CAUSE OF ACTION FOR UNJUST
ENRICHMENT ......................................................................................... 32
7
G. NO SUPPORT FOR AN ACCOUNTING .................................................. 33
8
H. NO FACTS SUPPORTING INJUCTIVE RELIEF ..................................... 33
9
I. THE UNDISPUTED FACTS DEMONSTRATE THAT PLAINTIFF IS
10 NOT ENTITILED TO PUNITIVE DAMAGES ............................................ 34
11 V. CONCLUSION .......................................................................................................... 35
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
__________________________________
2300 Contra Costa Blvd., 3
Suite 350 SCV263456: AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1270266
Pleasant Hill, CA 94523
(925) 930-9090
MOTION FOR SUMMARY JUDGMENT OF ON BEHALF DEFENDANTS
1 TABLE OF AUTHORITIES
2
3 Cases
4 Anglo California Nat. Bank v. Kidd
(1943) 58 Cal.App.2d ................................................................................................. 27
5
Avedisian v. Mercedes-Benz USA, LLC
6 C.D.Cal.2014, 43 F.Supp.3d 1071 ............................................................................. 31
7 Banerian v. O'Malley
(1974) 42 Cal.App.3d 604 .......................................................................................... 22
8
Cambridge Co. v. City of Elsinore
9 (1922) 57 Cal.App. 245 .............................................................................................. 27
10 Cockerell v. Title Ins. & Trust Co.
(1954) 42 Cal.2d 284.................................................................................................. 27
11
Colonial Life & Accident Ins. Co. v. Superior Court
12 (1982) 31 Cal.3d 785.................................................................................................. 34
13 Compton v. City of Santee
(1993) 12 Cal.App.4th 591 ......................................................................................... 21
14
Cone v. Union Oil Co.
15 (1954) 129 Cal.App.2d ............................................................................................... 21
16 DiPalma v. Seldman
(1994) 27 Cal.App.4th 1499 ....................................................................................... 22
17
Epic Games, Inc. v. Apple Inc.
18 N.D.Cal.2021, 2021 WL 4128925............................................................................... 31
19 Garretson v. Harold I. Miller
(2002) 99 Cal.App.4th 563 ......................................................................................... 22
20
Heritage Pac. Fin., LLC v. Monroy
21 (2013) 215 Cal.App.4th 972 ....................................................................................... 27
22 In re Marriage of Brown
(1976) 15 Cal.3d 838.................................................................................................. 22
23
Lackner v. North
24 (2006) 135 Cal.App.4th 1188 ..................................................................................... 34
25 Lectrodryer v. SeoulBank
(2000) 77 Cal.App.4th 723 ......................................................................................... 32
26
Lipscomb v. Krause
27 (1978) 87 Cal.App.3d 970 .......................................................................................... 24
28 Lucas v. Hamm
GALLOWAY, LUCCHESE, (1961) 56 Cal.2d 583, 591, denied (1962) 368 U.S. 987 ............................................ 22
EVERSON & PICCHI
__________________________________
2300 Contra Costa Blvd., 4
Suite 350 SCV263456: AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1270266
Pleasant Hill, CA 94523
(925) 930-9090
MOTION FOR SUMMARY JUDGMENT OF ON BEHALF DEFENDANTS
1 McAdams v. Monier, Inc.
(2010) 182 Cal.App.4th 174 ....................................................................................... 31
2
McKell v. Washington Mut., Inc.
3 (2006) 142 Cal.App.4th 1457 ..................................................................................... 31
4 Oakdale Village Group v. Fong
(1996) 43 Cal.App.4th 539 ......................................................................................... 27
5
OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp.
6 (2007) 157 Cal. App. 4th 835 ..................................................................................... 29
7 Small v. Fritz Companies, Inc.
(2003) 30 Cal.4th 167................................................................................................. 29
8
Smith v. Lewis
9 (1975) 13 Cal.3d 349.................................................................................................. 22
10 Spates v. Dameron Hosp. Assn.
(2003) 114 Cal.App.4th 208 ....................................................................................... 27
11
Taylor v. Superior Court
12 (1979) 24 Cal.3d 890.................................................................................................. 34
13 Vanderbilt Growth Fund, Inc. v. Superior Court
(1980) 105 Cal.App.3d 628 ....................................................................................... 20
14
Viner v. Sweet
15 (2003) 30 Cal.4th 1232......................................................................................... 22, 24
16
17 Statutes
18 11 U.S.Code § 523 ........................................................................................................ 17
19 11 U.S.Code § 727 ........................................................................................................ 16
20 15 U.S.Code § 1692e .................................................................................................... 32
21 Business and Professions Code § 17200, et seq. ......................................................... 19
22 Cal. Civ. Code § 1788.10 .............................................................................................. 32
23 Cal. Civ. Code § 3294 ................................................................................................... 34
24 Cal. Code Civ. Proc. § 437c .............................................................................. 14, 20, 21
25 Rest. Contracts, § 149(1)............................................................................................... 27
26
27
28
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
__________________________________
2300 Contra Costa Blvd., 5
Suite 350 SCV263456: AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1270266
Pleasant Hill, CA 94523
(925) 930-9090
MOTION FOR SUMMARY JUDGMENT OF ON BEHALF DEFENDANTS
1 Other Authorities
2 5 Witkin, Cal. Procedure (4th ed. 1997 .......................................................................... 33
3 Judicial of California Civil Jury Instruction (CACI) No. 600 ............................................ 24
4 Judicial of California Civil Jury Instruction (CACI) No. 601 ............................................ 24
5 Judicial of California Civil Jury Instruction (CACI) No. 602 ............................................ 22
6 Judicial of California Civil Jury Instruction (CACI) No. 603 ............................................ 22
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
__________________________________
2300 Contra Costa Blvd., 6
Suite 350 SCV263456: AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1270266
Pleasant Hill, CA 94523
(925) 930-9090
MOTION FOR SUMMARY JUDGMENT OF ON BEHALF DEFENDANTS
1 Defendants B. EDWARD McCUTCHAN, JR.; ROBERT J. SUNDERLAND;
2 SUNDERLAND | McCUTCHAN, LLP; and SUNDERLAND | McCUTCHAN, INC. hereby
3 submit the following memorandum of points and authorities in support of Defendants
4 seeking Summary Judgment of the entire action or, in the alternative, Summary
5 Adjudication of the Second through Eighth Causes of Action in Plaintiff’s Complaint
6 inclusive.
7 I.
8 EXECUTIVE SUMMARY
9 This entire matter boils down to Plaintiff’s claims of failure as to an attorney who
10 was not representing him for the majority of the matters, which are the basis of his
11 complaint. Every cause of action that arose out of the actual representation adhered to
12 the standard of care as declared by Defendants’ expert Mr. Windust. The reality is that
13 the claimed damages, ifany, are the result of Plaintiff’s own failure to prosecute his
14 claimed rights and they are not the result of any conduct by B. Edward McCutchan, Jr.;
15 Robert J. Sunderland; Sunderland | McCutchan, LLP; or Sunderland | McCutchan, Inc.
16 as plaintiff claims.
17 II.
18 INTRODUCTION
19 This action arises out of the representation by moving defendants B. Edward
20 McCutchan and Sunderland/McCutchan LLP of Plaintiff Richard Abel in a lawsuit to
21 recover money invested by Mr. Abel in a housing development located in Malibu. As a
22 result of the developers fraud, Mr. Abel and other investors lost a significant portion of
23 their investment and then hired Sunderland/McCutchan LLP to sue the developers in an
24 effort to recover their money.
25 Mr. McCutchan represented the investors in litigation, which spanned ten years
26 and three trials. Ultimately, Mr. McCutchan was able to secure judgments against the
27 underlying defendants for over $17,000,000. After the judgment was obtained, Mr. Abel
28 decided to pursue recovery of the award on his own, without cooperating with Mr.
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
__________________________________
2300 Contra Costa Blvd., 7
Suite 350 SCV263456: AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1270266
Pleasant Hill, CA 94523
(925) 930-9090
MOTION FOR SUMMARY JUDGMENT OF ON BEHALF DEFENDANTS
1 McCutchan or his former co-plaintiffs, even though he had signed a cooperation
2 agreement with McCutchan and his co-plaintiffs. As a result of Mr. Abel’s attempts at
3 collecting the judgement the primary underlying defendant was forced to declare
4 bankruptcy, thereby creating an obstacle for recovery by all the claimants entitled to
5 collect on the judgement. To date no money has been able to be recovered from the
6 underlying judgment.
7 Mr. Abel has now brought a myriad of claims against defendants based on the
8 underlying matter. Most of these claims stem from Mr. Abel’s contentions that some of
9 the underlying defendants had assigned their claims to him, allegedly giving him a larger
10 share of the underlying, non-recoverable, judgment. However, the undisputed facts
11 demonstrate that Mr. Abel never provided to moving defendants enforceable
12 assignments, he has no enforceable assignments now, and even if he had been assigned
13 these claims, as a result of the bankruptcy there is/are no damages.
14 The undisputed facts also demonstrate that defendants complied with both the
15 standard of care and in their fiduciary duty to Mr. Abel in all respects. The actions was
16 appropriately pursued by Mr. McCutchan on behalf of his clients and his fees were
17 reasonable and appropriate. The undisputed facts and supporting evidence demonstrate
18 there is no triable issue of fact as to the entirety of Plaintiff’s claims against Defendants,
19 and, therefore, these Defendants are entitled to Summary Judgment, or in the alternative
20 Summary Adjudication in their favor with respect to those causes of action for which,
21 Plaintiff is not able to raise a material issue of fact.
22 III.
23 STATEMENT OF FACTS
24 A. FACTUAL BACKGROUND OF UNDERLYING MATTER
25 1. Underlying Liebling Matter
26 In early 2009, Sunderland McCutchan, LLP was contacted by an investor about a
27 loan made in connection with a real estate development in Malibu, CA. Defendant B.
28 Edward McCutchan, one of the owners of Sunderland McCutchan, LLP, was informed
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
__________________________________
2300 Contra Costa Blvd., 8
Suite 350 SCV263456: AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1270266
Pleasant Hill, CA 94523
(925) 930-9090
MOTION FOR SUMMARY JUDGMENT OF ON BEHALF DEFENDANTS
1 that several lenders loaned the borrower, Robert E. Zuckerman, who was as president of
2 Malibu Greene 3 Corporation a Nevada Corporation, money for development of property
3 in Southern California. The Mortgage Broker for the loan was Charlene Goodrich Loan
4 Servicing, Inc. (CGLS). The escrow closer was Fidelity National Title Company. Mr.
5 McCutchan was informed that no payments had been made from the borrowers, and that
6 they were in default. [See Def. Sep. Stmt., No. 1.]
7 On May 4, 2009 Mr. McCutchan met with the investors at the Hilton Hotel
8 conference room in Santa Rosa, CA. Plaintiff Richard Abel was present at this meeting.
9 [See Def. Sep. Stmt., No. 2.] At the May 4, 2009 meeting, Mr. McCutchan proposed a
10 hybrid fee agreement of $250.00 per hour and 15% of any recovery to the group for the
11 professional legal services of his firm and him. [See Def. Sep. Stmt., No. 3.]
12 On or about August 25, 2009, in Santa Rosa, California, Mr. Abel, retained and
13 employed Sunderland/ McCutchan LLP to represent him in an action to recover the
14 money he invested (hereafter the “Liebling Action”). Mr. Abel signed an Attorney-Client
15 Fee Agreement with Sunderland McCutchan, LLP, and a Cooperation, Voting Rights, and
16 Recovery Sharing Agreement reflecting the duties owed among the clients in the Liebling
17 Action. [See Def. Sep. Stmt., No. 4.]
18 In addition to Mr. Abel, Sunderland McCutchan, LLP also represented several
19 other investor/claimants in the same action. [See Def. Sep. Stmt., No. 5.] Per the
20 Cooperation, Voting Rights, and Recovery Sharing Agreement, all Claimants were to
21 recover based on their percentage contribution towards the total investment. [See Def.
22 Sep. Stmt., No. 6.] Mr. Abel’s investment was $72,500.00, which equated to 1.3191% of
23 the total invested by the Claimants. [See Def. Sep. Stmt., No. 7.]
24 On February 19, 2010, plaintiffs filed a Complaint in the Liebling Action naming the
25 following defendants CHARLENE GOODRICH, JEANNE TRIACCA, JEFF GREENE,
26 MALIBU GREENE VIEW CORPORATION, GREENE MALIBU VALLEY RANCH
27 CORPORATION, GREENE MALIBU 3 CORPORATION, TRIPLE J’S CORPORATION,
28 GREENE LOWER BROAD BEACH CORPORATION, CANYON GREENE
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
__________________________________
2300 Contra Costa Blvd., 9
Suite 350 SCV263456: AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1270266
Pleasant Hill, CA 94523
(925) 930-9090
MOTION FOR SUMMARY JUDGMENT OF ON BEHALF DEFENDANTS
1 CORPORATION, GREENE BROAD BEACH CORPORATION, MALIBU BEACH VIEW
2 CORPORATION, STEPHEN REEDER, CHARLES R. REEDER, ROBERT
3 ZUCKERMAN, JOHN W. CRUIKSHANK, RAPHAEL ROSINGANA, RONALD
4 REDDEKOPP, ERIC REDDEKOPP, JOHN PAUL HANSON, STEVEN K. TALBOT,
5 PETER SKARPIAS AKA PETER SCARPIAS, JOYCELYN ORBASE, TYNA
6 DEGENHARDT, DAYSTAR REAL ESTATE SERVICES, ANTHONY PHILLIP PIAZZA,
7 KJELL NELSON, CANDYCE LYNN GERRIOR, FIDELITY NATIONAL TITLE COMPANY,
8 AND DOES 1 THROUGH 100, INCLUSIVE in Sonoma County Superior Court, Case No.
9 CASE NO. SCV-245738. [See Def. Sep. Stmt., No. 8.]
10 During the course of litigation, Sunderland McCutchan, LLP routinely
11 corresponded with its clients in the Liebling Action through regular status reports. These
12 reports provided updates on case development, recoveries, costs, and fees due. [See
13 Def. Sep. Stmt., No. 9.] In order to pay for litigation expenses all of the Claimants were
14 requested to pay their prorated share of attorney fees and costs. During the pendency of
15 the action Mr. Abel paid not more than $10,000 in fees to Sunderland McCutchan LLP.
16 [See Def. Sep. Stmt., No. 10.]
17 During the pendency of the case, Sunderland McCutchan, LLP engaged in
18 significant discovery and motion practice. It also conducted asset searches and research
19 with respect to the claim in order to identify those persons and entities responsible for the
20 misconduct and also identify which defendants had sufficient assets to allow recovery.
21 [See Def. Sep. Stmt., No. 11.]
22 During the Liebling Action, written confidential settlements were reached with the
23 Brokers Charlene Goodrich and Jeanne Triacca, and with Charles Reeder. Mr. Abel
24 approved both of these settlements and was mailed checks with his prorated share of the
25 settlement proceeds. [See Def. Sep. Stmt., No. 12.]
26 Based upon Mr. McCutchan’s research into the claims, it was his belief that
27 Defendants Zuckerman, Cruikshank and Skarpias were the target defendants who were
28 responsible for misleading the investors; Robert Zuckerman had submitted his C.V. to
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
__________________________________
2300 Contra Costa Blvd., 10
Suite 350 SCV263456: AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1270266
Pleasant Hill, CA 94523
(925) 930-9090
MOTION FOR SUMMARY JUDGMENT OF ON BEHALF DEFENDANTS
1 Charlene Goodrich to obtain the loan for the Malibu project. It was Mr. Abel’s assessment
2 and professional judgement that the other underlying Liebling Defendants had limited
3 involvement, no clear liability, and/or lacked assets as a result of bankruptcy. For these
4 reasons, Mr. McCutchan determined that several of the underlying Defendants in the
5 Liebling Action should be dismissed which would allow him to focus the litigation on those
6 defendants for which there was clearer liability and assets to satisfy a judgement.
7 The defendants who Mr. McCutchan believed should be dismissed, for no
8 perceived liability or lack of assets were, JEFF GREENE, STEPHEN REEDER,
9 RAPHAEL ROSINGANA, ERIC and RONALD REDDEKOPP, TYNA DEGENHARDT,
10 DAYSTAR REAL ESTATE SERVICES, ANTHONY PHILLIP PIAZZA, FIDELITY
11 NATIONAL TITLE COMPANY. [See Def. Sep. Stmt., No. 13.]
12 On September 26, 2011, Robert Zuckerman filed a Cross-Complaint against the
13 Claimants in the Liebling Action. The Cross-Complaint stated causes of action for:
14 FRAUD IN THE INDUCEMENT, INTENTIONAL MISREPRESENTATON, NEGLIGENT
15 MISREPRESENTATON, CIVIL RICO, CIVIL EXTORTION, LIBEL, SLANDER PER SE,
16 INTENTIONAL INTERFERENCE WITH PROSPECTIVE BUSINESS ADVANTAGE,
17 NEGLIGENT INTERFERENCE WITH PROSPECTIVE BUSINESS ADVANTAGE,
18 BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING, INTENTIONAL
19 INFLICTION OF EMOTIONAL DISTRESS, and NEGLIGENT INFLICTION OF
20 EMOTIONAL DISTRESS. [See Def. Sep. Stmt., No. 14.] Mr. McCutchan prepared and
21 filed a demurrer to Zuckerman’s Cross-complaint, which was granted. [See Def. Sep.
22 Stmt., No. 15.]. This cross-complaint was eventually dismissed due to the efforts of Mr.
23 Abel and his firm.
24 During the pendency of the Liebling Action, several claimants asked to dismiss
25 their claims for various reasons. When this occurred Sunderland McCutchan, LLP’
26 practice was to request waivers of costs from the remaining Defendants in the underlying
27 action. [See Def. Sep. Stmt., No. 16.]
28 ////
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
__________________________________
2300 Contra Costa Blvd., 11
Suite 350 SCV263456: AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1270266
Pleasant Hill, CA 94523
(925) 930-9090
MOTION FOR SUMMARY JUDGMENT OF ON BEHALF DEFENDANTS
1 The first trial of three trials in the Liebling Action took place on March 27, 2014.
2 Prior to and after this trial regular status reports were sent to the Claimants, including Mr.
3 Abel, providing updates about the case, these reports would also note which of the
4 claimants had dismissed their claims. [See Def. Sep. Stmt., No. 17.]
5 Mr. Abel never advised Mr. McCutchan, during the pendency of the Liebling Action,
6 that some of the Claimants identified in the status reports as having dismissed their claims
7 had, prior to them being dismissed, assigned their claims to him. [See Def. Sep. Stmt.,
8 No. 18.] Mr. McCutchan first learned of this in Mid April of 2014 when Mr. Abel. [See Def.
9 Sep. Stmt., No. 19.]
10 At trial on March 27, 2014, none of the underlying Defendants appeared, and the
11 trial was uncontested. The Court awarded Judgment for Claimants and against all of the
12 remaining Defendants in the amount of $17,280,966.37. [See Def. Sep. Stmt., No. 20.]
13 At the time of the March 27, 2014 trial, the remaining defendants were: Robert
14 Zuckerman, Peter Skarpias, John Cruickshank, Malibu Greene View Corporation, Greene
15 Malibu Valley Ranch Corporation, Green Malibu 3 Corporation, Triple J's Corporation,
16 Greene Lower Broad Beach Corporation, Canyon Greene Corporation, Greene Broad
17 Beach Corporation and Malibu Beach View Corporation. [See Def. Sep. Stmt., No. 21.]
18 On April 2, 2014, the Court entered Judgment for plaintiffs and against defendants.
19 The April 2, 2014, Judgment awarded special damages of $4,669,937.34, which was the
20 collective loan amount fraudulently obtained by the defendants, minus the money
21 recovered by plaintiffs when the land was resold by Claimants as part of their efforts to
22 mitigate their damages. In addition, the Court awarded prejudgment interest, statutory
23 and general damages for those plaintiffs who were “elders”, attorneys’ fees, costs, and
24 punitive damages. The total judgment was $17,280,966.37. [See Def. Sep. Stmt., No.
25 22.] Richard Abel received an award of $123,877.70 in the April 2, 2014 Judgment. [See
26 Def. Sep. Stmt., No. 23.]
27 Following the April 2014, Judgment Mr. Abel for the first time advised Mr.
28 McCutchan that at least some of the Claimants had assigned their claims to him. [See
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
__________________________________
2300 Contra Costa Blvd., 12
Suite 350 SCV263456: AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1270266
Pleasant Hill, CA 94523
(925) 930-9090
MOTION FOR SUMMARY JUDGMENT OF ON BEHALF DEFENDANTS
1 Def. Sep. Stmt., No. 24.] On April 9, 2014, Mr. McCutchan sent a letter to Mr. Abel
2 requesting that he provide documentation of the assignments he claimed to have. In the
3 letter, Mr. McCutchan explained to Mr. Abel that the assignments would need to be
4 notarized, include the effective dates of the assignment, and the terms and the names
5 and address of the person giving the assignment. He included a form for Mr. Abel to use
6 and modify in obtaining the claimed assignments. [See Def. Sep. Stmt., No. 25.]
7 Mr. McCutchan did not receive documentation of any assignments from Mr. Abel
8 in response to his April 9, 2014, and so on May 23, 2014; he sent another letter requesting
9 the assignments. [See Def. Sep. Stmt., No. 26.] On May 29, 2014, Mr. McCutchan
10 emailed Mr. Abel requesting again the written assignments. That same day, in response
11 to Mr. McCutchan’s email, and contrary to his prior representations, Mr. Abel responded
12 stating that he did not have any assignments and that the former clients were not
13 interested in signing. [See Def. Sep. Stmt., No. 27.] In response, Mr. McCutchan emailed
14 Mr. Abel and told him that unless the former clients assign their claims to him per the
15 courtesy assignment form drafted for him, he would get nothing in collection based on the
16 assignments, and the Judgment would only be split between the remaining active clients.
17 [See Def. Sep. Stmt., No. 28.] The last client to be dismissed from the Liebling Action
18 had been dismissed in early 2013. No former Claimants in the Liebling Action ever told
19 Mr. McCutchan that they had assigned their claims to Mr. Abel. [See Def. Sep. Stmt., No.
20 29.]
21 Robert Zuckerman brought a motion to set aside the April 2014 judgement, which
22 was granted. [See Def. Sep. Stmt., No. 30.] On September 2, 2014, Mr. McCutchan filed
23 a Third Amended Complaint (the "TAC"), which named Mr. Zuckerman as the sole
24 Defendant, as the Judgment against the other Defendants remained intact. [See Def.
25 Sep. Stmt., No. 31.] On October 28, 201, Mr. McCutchan filed an amendment to the
26 TAC, which alleged that Mr. Abel was the owner of several claimed assignments. He filed
27 this amendment based on Mr. Abel’s representations that he had obtained assignments
28 from the listed individuals and that he had obtained those assignments prior to their claims
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
__________________________________
2300 Contra Costa Blvd., 13
Suite 350 SCV263456: AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1270266
Pleasant Hill, CA 94523
(925) 930-9090
MOTION FOR SUMMARY JUDGMENT OF ON BEHALF DEFENDANTS
1 being dismissed. The individuals listed on the pleading were those that Mr. Abel had
2 stated he had received assignments from prior to their requested dismissal from the
3 action. [See Def. Sep. Stmt., No. 32.] Robert Zuckerman demurred to the TAC. Mr.
4 McCutchan filed an Opposition to the demurrer, and the demurrer was denied. [See Def.
5 Sep. Stmt., No. 33.]
6 On January 2, 2015, the second Trial in Liebling Action took place against Mr.
7 Zuckerman, who failed to make an appearance. Like the first trial, the second proceeded
8 as an uncontested trial. The court awarded Judgment to Claimants, and Mr. McCutchan
9 submitted a proposed Judgment to the Court. [See Def. Sep. Stmt., No. 34.] Judgment
10 was entered on January 5, 2015 (the "2015 Judgment") against Zuckerman only, in the
11 amount of $20,989,591.99. [See Def. Sep. Stmt., No. 35.] Mr. Abel received an award of
12 $159,500.12 from the 2015 Judgment. [See Def. Sep. Stmt., No. 36.]
13 On Ju
Preview
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 Email: 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. AMENDED MEMORANDUM OF POINTS 13 B. EDWARD McCUTCHAN JR., an AND AUTHORITIES IN SUPPORT OF individual; SUNDERLAND/McCUTCHAN, MOTION FOR SUMMARY JUDGMENT 14 LLP, a general partnership; and DOES 1 OF ON BEHALF DEFENDANTS through 100, inclusive, 15 Defendants. Date: May 3, 2023 16 Time: 3:00 p.m. Dept: 18 17 Date Complaint Filed: November 2, 2018 18 Trial: March 10, 2023 19 20 21 22 23 24 25 26 27 28 GALLOWAY, LUCCHESE, EVERSON & PICCHI __________________________________ 2300 Contra Costa Blvd., 1 Suite 350 SCV263456: AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1270266 Pleasant Hill, CA 94523 (925) 930-9090 MOTION FOR SUMMARY JUDGMENT OF ON BEHALF DEFENDANTS 1 TABLE OF CONTENTS 2 I. EXECUTIVE SUMMARY .............................................................................................. 7 3 II. INTRODUCTION ......................................................................................................... 7 4 III. STATEMENT OF FACTS ........................................................................................... 8 5 A. FACTUAL BACKGROUND OF UNDERLYING MATTER .......................... 8 6 1. Underlying Liebling Matter ............................................................... 8 7 2. Zuckerman Bankruptcy.................................................................. 16 8 3. As to Sunderland | McCutchan, Inc. .............................................. 18 9 B. PROCEDURAL BACKGROUND.............................................................. 19 10 IV. LEGAL AUTHORITY ................................................................................................ 20 11 A. SUMMARY JUDGMENT/ADJUDICATION STANDARD .......................... 20 12 B. NO DISPUTED FACT AS TO PLAINTIFF’S FIRST CAUSE OF 13 ACTION FOR LEGAL MALPRACTICE AND FOURTH CAUES OF ACTION FOR BREACH OF FIDUCIARY DUTY ...................................... 21 14 1. To Support a Claim for Legal Malpractice, Plaintiff must 15 prove a breach of the standard of care and that the breach was the proximate cause of Plaintiff’s damages ............................ 21 16 2. The undisputed facts demonstrate that McCutchan complied 17 with the standard of care. .............................................................. 22 18 a. Inception of the case ................................................................................ 22 19 b. Activities during the case. ........................................................................ 23 20 c. Claimed Assignments .............................................................................. 24 3. Plaintiff cannot prove that the but for some negligent act of 21 Defendants he would have obtained a better result. ..................... 25 22 C. THE UNDISPUTED FACTS DEMONSTRATE THAT PLAINTIFF CANNOT PROVE HIS CAUSE OF ACTION FOR CONVERSION .......... 27 23 1. Assignments Are Not Property ...................................................... 27 24 2. McCutchan did not exercise any control or dominions of 25 funds secured by the Assignments ................................................ 28 26 3. Plaintiff has no evidence of any enforceable Assignments ............ 28 27 D. THE UNDISPUTED FACTS DEMONSTRATE THAT PLAINTIFF CANNOT SUPPORT HIS THIRD CAUSE OF ACTION FOR 28 FRAUD..................................................................................................... 29 GALLOWAY, LUCCHESE, EVERSON & PICCHI __________________________________ 2300 Contra Costa Blvd., 2 Suite 350 SCV263456: AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1270266 Pleasant Hill, CA 94523 (925) 930-9090 MOTION FOR SUMMARY JUDGMENT OF ON BEHALF DEFENDANTS 1 1. Plaintiff cannot support his claim of Fraud related to the Assignments. ................................................................................. 29 2 2. There is no claim for misrepresentation related to the 3 attorney fees.................................................................................. 30 4 E. THE UNDISPUTED FACTS DEMONSTRATE THAT PLAINTIFF CANNOT PROVE HIS CAUSE OF ACTION FOR VIOLATION OF 5 BUSINESS AND PROFESSIONS CODE 17200, ET. SEQ. .................... 31 6 F. NO FACTS SUPPORTING CAUSE OF ACTION FOR UNJUST ENRICHMENT ......................................................................................... 32 7 G. NO SUPPORT FOR AN ACCOUNTING .................................................. 33 8 H. NO FACTS SUPPORTING INJUCTIVE RELIEF ..................................... 33 9 I. THE UNDISPUTED FACTS DEMONSTRATE THAT PLAINTIFF IS 10 NOT ENTITILED TO PUNITIVE DAMAGES ............................................ 34 11 V. CONCLUSION .......................................................................................................... 35 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GALLOWAY, LUCCHESE, EVERSON & PICCHI __________________________________ 2300 Contra Costa Blvd., 3 Suite 350 SCV263456: AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1270266 Pleasant Hill, CA 94523 (925) 930-9090 MOTION FOR SUMMARY JUDGMENT OF ON BEHALF DEFENDANTS 1 TABLE OF AUTHORITIES 2 3 Cases 4 Anglo California Nat. Bank v. Kidd (1943) 58 Cal.App.2d ................................................................................................. 27 5 Avedisian v. Mercedes-Benz USA, LLC 6 C.D.Cal.2014, 43 F.Supp.3d 1071 ............................................................................. 31 7 Banerian v. O'Malley (1974) 42 Cal.App.3d 604 .......................................................................................... 22 8 Cambridge Co. v. City of Elsinore 9 (1922) 57 Cal.App. 245 .............................................................................................. 27 10 Cockerell v. Title Ins. & Trust Co. (1954) 42 Cal.2d 284.................................................................................................. 27 11 Colonial Life & Accident Ins. Co. v. Superior Court 12 (1982) 31 Cal.3d 785.................................................................................................. 34 13 Compton v. City of Santee (1993) 12 Cal.App.4th 591 ......................................................................................... 21 14 Cone v. Union Oil Co. 15 (1954) 129 Cal.App.2d ............................................................................................... 21 16 DiPalma v. Seldman (1994) 27 Cal.App.4th 1499 ....................................................................................... 22 17 Epic Games, Inc. v. Apple Inc. 18 N.D.Cal.2021, 2021 WL 4128925............................................................................... 31 19 Garretson v. Harold I. Miller (2002) 99 Cal.App.4th 563 ......................................................................................... 22 20 Heritage Pac. Fin., LLC v. Monroy 21 (2013) 215 Cal.App.4th 972 ....................................................................................... 27 22 In re Marriage of Brown (1976) 15 Cal.3d 838.................................................................................................. 22 23 Lackner v. North 24 (2006) 135 Cal.App.4th 1188 ..................................................................................... 34 25 Lectrodryer v. SeoulBank (2000) 77 Cal.App.4th 723 ......................................................................................... 32 26 Lipscomb v. Krause 27 (1978) 87 Cal.App.3d 970 .......................................................................................... 24 28 Lucas v. Hamm GALLOWAY, LUCCHESE, (1961) 56 Cal.2d 583, 591, denied (1962) 368 U.S. 987 ............................................ 22 EVERSON & PICCHI __________________________________ 2300 Contra Costa Blvd., 4 Suite 350 SCV263456: AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1270266 Pleasant Hill, CA 94523 (925) 930-9090 MOTION FOR SUMMARY JUDGMENT OF ON BEHALF DEFENDANTS 1 McAdams v. Monier, Inc. (2010) 182 Cal.App.4th 174 ....................................................................................... 31 2 McKell v. Washington Mut., Inc. 3 (2006) 142 Cal.App.4th 1457 ..................................................................................... 31 4 Oakdale Village Group v. Fong (1996) 43 Cal.App.4th 539 ......................................................................................... 27 5 OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. 6 (2007) 157 Cal. App. 4th 835 ..................................................................................... 29 7 Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167................................................................................................. 29 8 Smith v. Lewis 9 (1975) 13 Cal.3d 349.................................................................................................. 22 10 Spates v. Dameron Hosp. Assn. (2003) 114 Cal.App.4th 208 ....................................................................................... 27 11 Taylor v. Superior Court 12 (1979) 24 Cal.3d 890.................................................................................................. 34 13 Vanderbilt Growth Fund, Inc. v. Superior Court (1980) 105 Cal.App.3d 628 ....................................................................................... 20 14 Viner v. Sweet 15 (2003) 30 Cal.4th 1232......................................................................................... 22, 24 16 17 Statutes 18 11 U.S.Code § 523 ........................................................................................................ 17 19 11 U.S.Code § 727 ........................................................................................................ 16 20 15 U.S.Code § 1692e .................................................................................................... 32 21 Business and Professions Code § 17200, et seq. ......................................................... 19 22 Cal. Civ. Code § 1788.10 .............................................................................................. 32 23 Cal. Civ. Code § 3294 ................................................................................................... 34 24 Cal. Code Civ. Proc. § 437c .............................................................................. 14, 20, 21 25 Rest. Contracts, § 149(1)............................................................................................... 27 26 27 28 GALLOWAY, LUCCHESE, EVERSON & PICCHI __________________________________ 2300 Contra Costa Blvd., 5 Suite 350 SCV263456: AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1270266 Pleasant Hill, CA 94523 (925) 930-9090 MOTION FOR SUMMARY JUDGMENT OF ON BEHALF DEFENDANTS 1 Other Authorities 2 5 Witkin, Cal. Procedure (4th ed. 1997 .......................................................................... 33 3 Judicial of California Civil Jury Instruction (CACI) No. 600 ............................................ 24 4 Judicial of California Civil Jury Instruction (CACI) No. 601 ............................................ 24 5 Judicial of California Civil Jury Instruction (CACI) No. 602 ............................................ 22 6 Judicial of California Civil Jury Instruction (CACI) No. 603 ............................................ 22 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 __________________________________ 2300 Contra Costa Blvd., 6 Suite 350 SCV263456: AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1270266 Pleasant Hill, CA 94523 (925) 930-9090 MOTION FOR SUMMARY JUDGMENT OF ON BEHALF DEFENDANTS 1 Defendants B. EDWARD McCUTCHAN, JR.; ROBERT J. SUNDERLAND; 2 SUNDERLAND | McCUTCHAN, LLP; and SUNDERLAND | McCUTCHAN, INC. hereby 3 submit the following memorandum of points and authorities in support of Defendants 4 seeking Summary Judgment of the entire action or, in the alternative, Summary 5 Adjudication of the Second through Eighth Causes of Action in Plaintiff’s Complaint 6 inclusive. 7 I. 8 EXECUTIVE SUMMARY 9 This entire matter boils down to Plaintiff’s claims of failure as to an attorney who 10 was not representing him for the majority of the matters, which are the basis of his 11 complaint. Every cause of action that arose out of the actual representation adhered to 12 the standard of care as declared by Defendants’ expert Mr. Windust. The reality is that 13 the claimed damages, ifany, are the result of Plaintiff’s own failure to prosecute his 14 claimed rights and they are not the result of any conduct by B. Edward McCutchan, Jr.; 15 Robert J. Sunderland; Sunderland | McCutchan, LLP; or Sunderland | McCutchan, Inc. 16 as plaintiff claims. 17 II. 18 INTRODUCTION 19 This action arises out of the representation by moving defendants B. Edward 20 McCutchan and Sunderland/McCutchan LLP of Plaintiff Richard Abel in a lawsuit to 21 recover money invested by Mr. Abel in a housing development located in Malibu. As a 22 result of the developers fraud, Mr. Abel and other investors lost a significant portion of 23 their investment and then hired Sunderland/McCutchan LLP to sue the developers in an 24 effort to recover their money. 25 Mr. McCutchan represented the investors in litigation, which spanned ten years 26 and three trials. Ultimately, Mr. McCutchan was able to secure judgments against the 27 underlying defendants for over $17,000,000. After the judgment was obtained, Mr. Abel 28 decided to pursue recovery of the award on his own, without cooperating with Mr. GALLOWAY, LUCCHESE, EVERSON & PICCHI __________________________________ 2300 Contra Costa Blvd., 7 Suite 350 SCV263456: AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1270266 Pleasant Hill, CA 94523 (925) 930-9090 MOTION FOR SUMMARY JUDGMENT OF ON BEHALF DEFENDANTS 1 McCutchan or his former co-plaintiffs, even though he had signed a cooperation 2 agreement with McCutchan and his co-plaintiffs. As a result of Mr. Abel’s attempts at 3 collecting the judgement the primary underlying defendant was forced to declare 4 bankruptcy, thereby creating an obstacle for recovery by all the claimants entitled to 5 collect on the judgement. To date no money has been able to be recovered from the 6 underlying judgment. 7 Mr. Abel has now brought a myriad of claims against defendants based on the 8 underlying matter. Most of these claims stem from Mr. Abel’s contentions that some of 9 the underlying defendants had assigned their claims to him, allegedly giving him a larger 10 share of the underlying, non-recoverable, judgment. However, the undisputed facts 11 demonstrate that Mr. Abel never provided to moving defendants enforceable 12 assignments, he has no enforceable assignments now, and even if he had been assigned 13 these claims, as a result of the bankruptcy there is/are no damages. 14 The undisputed facts also demonstrate that defendants complied with both the 15 standard of care and in their fiduciary duty to Mr. Abel in all respects. The actions was 16 appropriately pursued by Mr. McCutchan on behalf of his clients and his fees were 17 reasonable and appropriate. The undisputed facts and supporting evidence demonstrate 18 there is no triable issue of fact as to the entirety of Plaintiff’s claims against Defendants, 19 and, therefore, these Defendants are entitled to Summary Judgment, or in the alternative 20 Summary Adjudication in their favor with respect to those causes of action for which, 21 Plaintiff is not able to raise a material issue of fact. 22 III. 23 STATEMENT OF FACTS 24 A. FACTUAL BACKGROUND OF UNDERLYING MATTER 25 1. Underlying Liebling Matter 26 In early 2009, Sunderland McCutchan, LLP was contacted by an investor about a 27 loan made in connection with a real estate development in Malibu, CA. Defendant B. 28 Edward McCutchan, one of the owners of Sunderland McCutchan, LLP, was informed GALLOWAY, LUCCHESE, EVERSON & PICCHI __________________________________ 2300 Contra Costa Blvd., 8 Suite 350 SCV263456: AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1270266 Pleasant Hill, CA 94523 (925) 930-9090 MOTION FOR SUMMARY JUDGMENT OF ON BEHALF DEFENDANTS 1 that several lenders loaned the borrower, Robert E. Zuckerman, who was as president of 2 Malibu Greene 3 Corporation a Nevada Corporation, money for development of property 3 in Southern California. The Mortgage Broker for the loan was Charlene Goodrich Loan 4 Servicing, Inc. (CGLS). The escrow closer was Fidelity National Title Company. Mr. 5 McCutchan was informed that no payments had been made from the borrowers, and that 6 they were in default. [See Def. Sep. Stmt., No. 1.] 7 On May 4, 2009 Mr. McCutchan met with the investors at the Hilton Hotel 8 conference room in Santa Rosa, CA. Plaintiff Richard Abel was present at this meeting. 9 [See Def. Sep. Stmt., No. 2.] At the May 4, 2009 meeting, Mr. McCutchan proposed a 10 hybrid fee agreement of $250.00 per hour and 15% of any recovery to the group for the 11 professional legal services of his firm and him. [See Def. Sep. Stmt., No. 3.] 12 On or about August 25, 2009, in Santa Rosa, California, Mr. Abel, retained and 13 employed Sunderland/ McCutchan LLP to represent him in an action to recover the 14 money he invested (hereafter the “Liebling Action”). Mr. Abel signed an Attorney-Client 15 Fee Agreement with Sunderland McCutchan, LLP, and a Cooperation, Voting Rights, and 16 Recovery Sharing Agreement reflecting the duties owed among the clients in the Liebling 17 Action. [See Def. Sep. Stmt., No. 4.] 18 In addition to Mr. Abel, Sunderland McCutchan, LLP also represented several 19 other investor/claimants in the same action. [See Def. Sep. Stmt., No. 5.] Per the 20 Cooperation, Voting Rights, and Recovery Sharing Agreement, all Claimants were to 21 recover based on their percentage contribution towards the total investment. [See Def. 22 Sep. Stmt., No. 6.] Mr. Abel’s investment was $72,500.00, which equated to 1.3191% of 23 the total invested by the Claimants. [See Def. Sep. Stmt., No. 7.] 24 On February 19, 2010, plaintiffs filed a Complaint in the Liebling Action naming the 25 following defendants CHARLENE GOODRICH, JEANNE TRIACCA, JEFF GREENE, 26 MALIBU GREENE VIEW CORPORATION, GREENE MALIBU VALLEY RANCH 27 CORPORATION, GREENE MALIBU 3 CORPORATION, TRIPLE J’S CORPORATION, 28 GREENE LOWER BROAD BEACH CORPORATION, CANYON GREENE GALLOWAY, LUCCHESE, EVERSON & PICCHI __________________________________ 2300 Contra Costa Blvd., 9 Suite 350 SCV263456: AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1270266 Pleasant Hill, CA 94523 (925) 930-9090 MOTION FOR SUMMARY JUDGMENT OF ON BEHALF DEFENDANTS 1 CORPORATION, GREENE BROAD BEACH CORPORATION, MALIBU BEACH VIEW 2 CORPORATION, STEPHEN REEDER, CHARLES R. REEDER, ROBERT 3 ZUCKERMAN, JOHN W. CRUIKSHANK, RAPHAEL ROSINGANA, RONALD 4 REDDEKOPP, ERIC REDDEKOPP, JOHN PAUL HANSON, STEVEN K. TALBOT, 5 PETER SKARPIAS AKA PETER SCARPIAS, JOYCELYN ORBASE, TYNA 6 DEGENHARDT, DAYSTAR REAL ESTATE SERVICES, ANTHONY PHILLIP PIAZZA, 7 KJELL NELSON, CANDYCE LYNN GERRIOR, FIDELITY NATIONAL TITLE COMPANY, 8 AND DOES 1 THROUGH 100, INCLUSIVE in Sonoma County Superior Court, Case No. 9 CASE NO. SCV-245738. [See Def. Sep. Stmt., No. 8.] 10 During the course of litigation, Sunderland McCutchan, LLP routinely 11 corresponded with its clients in the Liebling Action through regular status reports. These 12 reports provided updates on case development, recoveries, costs, and fees due. [See 13 Def. Sep. Stmt., No. 9.] In order to pay for litigation expenses all of the Claimants were 14 requested to pay their prorated share of attorney fees and costs. During the pendency of 15 the action Mr. Abel paid not more than $10,000 in fees to Sunderland McCutchan LLP. 16 [See Def. Sep. Stmt., No. 10.] 17 During the pendency of the case, Sunderland McCutchan, LLP engaged in 18 significant discovery and motion practice. It also conducted asset searches and research 19 with respect to the claim in order to identify those persons and entities responsible for the 20 misconduct and also identify which defendants had sufficient assets to allow recovery. 21 [See Def. Sep. Stmt., No. 11.] 22 During the Liebling Action, written confidential settlements were reached with the 23 Brokers Charlene Goodrich and Jeanne Triacca, and with Charles Reeder. Mr. Abel 24 approved both of these settlements and was mailed checks with his prorated share of the 25 settlement proceeds. [See Def. Sep. Stmt., No. 12.] 26 Based upon Mr. McCutchan’s research into the claims, it was his belief that 27 Defendants Zuckerman, Cruikshank and Skarpias were the target defendants who were 28 responsible for misleading the investors; Robert Zuckerman had submitted his C.V. to GALLOWAY, LUCCHESE, EVERSON & PICCHI __________________________________ 2300 Contra Costa Blvd., 10 Suite 350 SCV263456: AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1270266 Pleasant Hill, CA 94523 (925) 930-9090 MOTION FOR SUMMARY JUDGMENT OF ON BEHALF DEFENDANTS 1 Charlene Goodrich to obtain the loan for the Malibu project. It was Mr. Abel’s assessment 2 and professional judgement that the other underlying Liebling Defendants had limited 3 involvement, no clear liability, and/or lacked assets as a result of bankruptcy. For these 4 reasons, Mr. McCutchan determined that several of the underlying Defendants in the 5 Liebling Action should be dismissed which would allow him to focus the litigation on those 6 defendants for which there was clearer liability and assets to satisfy a judgement. 7 The defendants who Mr. McCutchan believed should be dismissed, for no 8 perceived liability or lack of assets were, JEFF GREENE, STEPHEN REEDER, 9 RAPHAEL ROSINGANA, ERIC and RONALD REDDEKOPP, TYNA DEGENHARDT, 10 DAYSTAR REAL ESTATE SERVICES, ANTHONY PHILLIP PIAZZA, FIDELITY 11 NATIONAL TITLE COMPANY. [See Def. Sep. Stmt., No. 13.] 12 On September 26, 2011, Robert Zuckerman filed a Cross-Complaint against the 13 Claimants in the Liebling Action. The Cross-Complaint stated causes of action for: 14 FRAUD IN THE INDUCEMENT, INTENTIONAL MISREPRESENTATON, NEGLIGENT 15 MISREPRESENTATON, CIVIL RICO, CIVIL EXTORTION, LIBEL, SLANDER PER SE, 16 INTENTIONAL INTERFERENCE WITH PROSPECTIVE BUSINESS ADVANTAGE, 17 NEGLIGENT INTERFERENCE WITH PROSPECTIVE BUSINESS ADVANTAGE, 18 BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING, INTENTIONAL 19 INFLICTION OF EMOTIONAL DISTRESS, and NEGLIGENT INFLICTION OF 20 EMOTIONAL DISTRESS. [See Def. Sep. Stmt., No. 14.] Mr. McCutchan prepared and 21 filed a demurrer to Zuckerman’s Cross-complaint, which was granted. [See Def. Sep. 22 Stmt., No. 15.]. This cross-complaint was eventually dismissed due to the efforts of Mr. 23 Abel and his firm. 24 During the pendency of the Liebling Action, several claimants asked to dismiss 25 their claims for various reasons. When this occurred Sunderland McCutchan, LLP’ 26 practice was to request waivers of costs from the remaining Defendants in the underlying 27 action. [See Def. Sep. Stmt., No. 16.] 28 //// GALLOWAY, LUCCHESE, EVERSON & PICCHI __________________________________ 2300 Contra Costa Blvd., 11 Suite 350 SCV263456: AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1270266 Pleasant Hill, CA 94523 (925) 930-9090 MOTION FOR SUMMARY JUDGMENT OF ON BEHALF DEFENDANTS 1 The first trial of three trials in the Liebling Action took place on March 27, 2014. 2 Prior to and after this trial regular status reports were sent to the Claimants, including Mr. 3 Abel, providing updates about the case, these reports would also note which of the 4 claimants had dismissed their claims. [See Def. Sep. Stmt., No. 17.] 5 Mr. Abel never advised Mr. McCutchan, during the pendency of the Liebling Action, 6 that some of the Claimants identified in the status reports as having dismissed their claims 7 had, prior to them being dismissed, assigned their claims to him. [See Def. Sep. Stmt., 8 No. 18.] Mr. McCutchan first learned of this in Mid April of 2014 when Mr. Abel. [See Def. 9 Sep. Stmt., No. 19.] 10 At trial on March 27, 2014, none of the underlying Defendants appeared, and the 11 trial was uncontested. The Court awarded Judgment for Claimants and against all of the 12 remaining Defendants in the amount of $17,280,966.37. [See Def. Sep. Stmt., No. 20.] 13 At the time of the March 27, 2014 trial, the remaining defendants were: Robert 14 Zuckerman, Peter Skarpias, John Cruickshank, Malibu Greene View Corporation, Greene 15 Malibu Valley Ranch Corporation, Green Malibu 3 Corporation, Triple J's Corporation, 16 Greene Lower Broad Beach Corporation, Canyon Greene Corporation, Greene Broad 17 Beach Corporation and Malibu Beach View Corporation. [See Def. Sep. Stmt., No. 21.] 18 On April 2, 2014, the Court entered Judgment for plaintiffs and against defendants. 19 The April 2, 2014, Judgment awarded special damages of $4,669,937.34, which was the 20 collective loan amount fraudulently obtained by the defendants, minus the money 21 recovered by plaintiffs when the land was resold by Claimants as part of their efforts to 22 mitigate their damages. In addition, the Court awarded prejudgment interest, statutory 23 and general damages for those plaintiffs who were “elders”, attorneys’ fees, costs, and 24 punitive damages. The total judgment was $17,280,966.37. [See Def. Sep. Stmt., No. 25 22.] Richard Abel received an award of $123,877.70 in the April 2, 2014 Judgment. [See 26 Def. Sep. Stmt., No. 23.] 27 Following the April 2014, Judgment Mr. Abel for the first time advised Mr. 28 McCutchan that at least some of the Claimants had assigned their claims to him. [See GALLOWAY, LUCCHESE, EVERSON & PICCHI __________________________________ 2300 Contra Costa Blvd., 12 Suite 350 SCV263456: AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1270266 Pleasant Hill, CA 94523 (925) 930-9090 MOTION FOR SUMMARY JUDGMENT OF ON BEHALF DEFENDANTS 1 Def. Sep. Stmt., No. 24.] On April 9, 2014, Mr. McCutchan sent a letter to Mr. Abel 2 requesting that he provide documentation of the assignments he claimed to have. In the 3 letter, Mr. McCutchan explained to Mr. Abel that the assignments would need to be 4 notarized, include the effective dates of the assignment, and the terms and the names 5 and address of the person giving the assignment. He included a form for Mr. Abel to use 6 and modify in obtaining the claimed assignments. [See Def. Sep. Stmt., No. 25.] 7 Mr. McCutchan did not receive documentation of any assignments from Mr. Abel 8 in response to his April 9, 2014, and so on May 23, 2014; he sent another letter requesting 9 the assignments. [See Def. Sep. Stmt., No. 26.] On May 29, 2014, Mr. McCutchan 10 emailed Mr. Abel requesting again the written assignments. That same day, in response 11 to Mr. McCutchan’s email, and contrary to his prior representations, Mr. Abel responded 12 stating that he did not have any assignments and that the former clients were not 13 interested in signing. [See Def. Sep. Stmt., No. 27.] In response, Mr. McCutchan emailed 14 Mr. Abel and told him that unless the former clients assign their claims to him per the 15 courtesy assignment form drafted for him, he would get nothing in collection based on the 16 assignments, and the Judgment would only be split between the remaining active clients. 17 [See Def. Sep. Stmt., No. 28.] The last client to be dismissed from the Liebling Action 18 had been dismissed in early 2013. No former Claimants in the Liebling Action ever told 19 Mr. McCutchan that they had assigned their claims to Mr. Abel. [See Def. Sep. Stmt., No. 20 29.] 21 Robert Zuckerman brought a motion to set aside the April 2014 judgement, which 22 was granted. [See Def. Sep. Stmt., No. 30.] On September 2, 2014, Mr. McCutchan filed 23 a Third Amended Complaint (the "TAC"), which named Mr. Zuckerman as the sole 24 Defendant, as the Judgment against the other Defendants remained intact. [See Def. 25 Sep. Stmt., No. 31.] On October 28, 201, Mr. McCutchan filed an amendment to the 26 TAC, which alleged that Mr. Abel was the owner of several claimed assignments. He filed 27 this amendment based on Mr. Abel’s representations that he had obtained assignments 28 from the listed individuals and that he had obtained those assignments prior to their claims GALLOWAY, LUCCHESE, EVERSON & PICCHI __________________________________ 2300 Contra Costa Blvd., 13 Suite 350 SCV263456: AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1270266 Pleasant Hill, CA 94523 (925) 930-9090 MOTION FOR SUMMARY JUDGMENT OF ON BEHALF DEFENDANTS 1 being dismissed. The individuals listed on the pleading were those that Mr. Abel had 2 stated he had received assignments from prior to their requested dismissal from the 3 action. [See Def. Sep. Stmt., No. 32.] Robert Zuckerman demurred to the TAC. Mr. 4 McCutchan filed an Opposition to the demurrer, and the demurrer was denied. [See Def. 5 Sep. Stmt., No. 33.] 6 On January 2, 2015, the second Trial in Liebling Action took place against Mr. 7 Zuckerman, who failed to make an appearance. Like the first trial, the second proceeded 8 as an uncontested trial. The court awarded Judgment to Claimants, and Mr. McCutchan 9 submitted a proposed Judgment to the Court. [See Def. Sep. Stmt., No. 34.] Judgment 10 was entered on January 5, 2015 (the "2015 Judgment") against Zuckerman only, in the 11 amount of $20,989,591.99. [See Def. Sep. Stmt., No. 35.] Mr. Abel received an award of 12 $159,500.12 from the 2015 Judgment. [See Def. Sep. Stmt., No. 36.] 13 On Ju