Legal Document: BETHANIA BACIGALUPE VS. KAREN MATCKE CROSBY

On February 07, 2024 a OTHER NON EXEMPT COMPLAINTS, COMPLAINT (TRANSACTION ID # 100227825) FILED BY PLAINTIFF BACIGALUPE, BETHANIA AS TO DEFENDANT CROSBY, KAREN MATCKE NO SUMMONS ISSUED, JUDICIAL COUNCIL CIVIL CASE COVER SHEET NOT FILED CASE MANAGEMENT CONFERENCE SCHEDULED FOR JUL-10-2024 PROOF OF SERVICE DUE ON APR-08-2024 CASE MANAGEMENT STATEMENT DUE ON JUN-17-2024 was filed involving a dispute between Bacigalupe, Bethania, and Crosby, Karen Matcke, for OTHER NON EXEMPT COMPLAINTS in the District Court of San Francisco County.

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KELLER, FISHBACK & JACKSON LLP
1 Stephen M. Fishback (State Bar No. 191646)
2 Daniel L. Keller (State Bar No. 191738)
Tenny Mirzayan (State Bar No. 233471) ELECTRONICALLY
3 28720 Canwood Street, Suite 200 FILED
Agoura Hills, California 91301 Superior Court of California,
4 Telephone: 818.342.7442 County of San Francisco

Facsimile: 818.342.7616 02/07/2024
5 Clerk of the Court
Attorneys for Plaintiff Bethania Bacigalupe BY: SHENEQUA GLADNEY
6 Deputy Clerk

7 CGC-24-612182
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 COUNTY OF SAN FRANCISCO
9 Case No.:
10 BETHANIA BACIGALUPE,
COMPLAINT FOR DECLARATORY
11 Plaintiff, RELIEF (CODE CIV. PROC. § 1060)
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vs.
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KAREN MATCKE CROSBY,
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Defendant.
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COMPLAINT FOR DECLARATORY RELIEF
1 INTRODUCTION
2 1. Plaintiff Bethania Bacigalupe (“Bacigalupe”) seeks a judicial declaration that the
3 attorney fee lien filed by Defendant Karen Matcke Crosby (“Crosby”) in Bacigalupe v. Pang, et al,
4 San Francisco Superior Court Case No. CGC-19-579618 is invalid, and that Bacigalupe has no duty
5 or obligation to Crosby. First, a judge of the San Francisco Superior Court has already made a final
6 determination and entered an order on Crosby’s attorney fee lien claim on the merits in Crosby v
7 Bacigalupe, et al., San Francisco Superior Court Case No. CGC-23-605647. Res judicata and
8 collateral estoppel apply, and act as a bar to Crosby’s lien. Second, the lien is defective on its face,
9 as it violates the Rules of Professional Conduct and seeks an impermissible recovery against
10 Bacigalupe.
11 THE PARTIES
12 2. Plaintiff Bethania Bacigalupe is an individual, formerly a resident of San Francisco,
13 California.
14 3. Defendant Karen Matcke Crosby is a resident of the State of California who regularly
15 conducts business in the City and County of San Francisco, California. Crosby is an attorney
16 licensed in the State of California.
17 JURISDICTION AND VENUE
18 4. This Court has jurisdiction over the matters alleged in this Complaint pursuant to
19 Code of Civil Procedure section 1060. The matters at issue in this case relate to and arise from the
20 action entitled Bacigalupe v. Pang, et al, San Francisco Superior Court Case No. CGC-19-579618.
21 5. This Court has personal jurisdiction over Karen Matcke Crosby, who is a resident of
22 and does business in California.
23 6. Venue for this action properly lies in the Superior Court of the State of California,
24 City and County of San Francisco, pursuant to Code of Civil Procedure section 395.
25 CAUSE OF ACTION
26 (DECLARATORY RELIEF)
27 7. Plaintiff incorporates herein by reference, as though fully set forth herein, the
28 allegations contained in Paragraphs 1 through 6.

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COMPLAINT FOR DECLARATORY RELIEF
1 8. Crosby represented Plaintiff Bethania Bacigalupe as her attorney for a short portion
2 of the personal injury action entitled Bacigalupe v. Pang, et al, San Francisco Superior Court Case
3 No. CGC-19-579618. Defendant Bacigalupe was a pedestrian who was injured in a vehicle versus
4 pedestrian accident in 2017. The trial date was scheduled for February 16, 2021.
5 9. With trial less than eight weeks away, on December 23, 2020, Crosby had contacted
6 Bacigalupe stating that she was overwhelmed and short-staffed. Crosby further stated that despite
7 the contingency fee agreement, a new “litigation agreement” was supposed to have been sent to Ms.
8 Bacigalupe that would have required Bacigalupe to pay for litigation costs up front and regardless
9 of recovery: “You will have to come up with some expert money or take defendant’s best offer…I
10 am not able to advance sums on your behalf so if money is spent and there is no recovery you will
11 be billed. I will send this in a letter. marisol [sic] was supposed to send you a litigation agreement
12 but I don’t see it in the file. The agreement makes it clear that my office will not advance trial
13 costs.” The expert disclosure deadline was just five days away as of the date of this disclosure for
14 the first time to Bacigalupe.
15 10. On January 8, 2021 (well after the expert disclosure deadline), Crosby requested
16 funds to retain an expert and asked Bacigalupe to beg friends, family, and strangers for money
17 through a GoFundMe page. GoFundMe is a crowdfunding platform that allows people to raise
18 money for events such as celebrations to challenging circumstances like illnesses. Crosby wrote to
19 Ms. Bacigalupe: “[t]hey did not come up from $55k offer…I need deposit for Dr Wong expert. Can
20 you do go find me [sic – GoFundMe] page, hit by car need money to [sic] expert witnesses at trial?
21 You must understand that they have never offered the 100k or 150k policy limits.”
22 11. Crosby has sworn under oath that she “settled” Bacigalupe’s personal injury matter
23 for $150,000 by January 6, 2021. But on January 10, 2021, Crosby wrote to Bacigalupe: “Because
24 we did not settle its [sic] possible all agreements are off. I am going to ask for a trial extension on
25 Monday. Is that okay with you?”
26 12. Crosby’s request for a trial continuance was denied by the Court. The trial date was
27 just four weeks away. Expert discovery had not even commenced. The deposition of the defendants
28 had not even been taken. Pertinent discovery regarding the lawsuit facts, defendants’ claims, and

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COMPLAINT FOR DECLARATORY RELIEF
1 other critical matters had not been conducted, including valuable written discovery. All deadlines to
2 enforce compliance by defendants with any discovery requests had long since lapsed. No motions
3 were filed by Crosby.
4 13. Bacigalupe fired Crosby for her malfeasance and malpractice. Crosby was notified
5 that Ms. Bacigalupe had hired a new attorney on January 12, 2021. Bacigalupe hired the law firm of
6 Keller, Fishback & Jackson, LLP to represent her in Crosby’s place. Keller, Fishback, & Jackson,
7 LLP was able to secure a trial date continuance for Bacigalupe to protect her interests in the
8 litigation and worked to repair the damage done to Bacigalupe’s case by the poor workmanship and
9 lack of case preparation by Crosby for the duration that she was the attorney of record in the
10 lawsuit.
11 14. Keller, Fishback, and Jackson, LLP worked tirelessly on behalf of Bacigalupe, and
12 reached a settlement with the defendants in Bacigalupe v. Pang.
13 15. On August 3, 2021, Crosby filed a Notice of Attorney Lien filed with the court in the
14 amount of $48,905.97. This lien was an improper conversion lien, which not only included
15 improper hourly charges on her contingency contract, it included over 20 separate line-item charges
16 after her discharge date for costs and fees through August 2, 2021 - eight months after she was
17 discharged. Her lien also includes time improperly billed for clerical work performed by her staff,
18 including a paralegal and law student clerk. It includes over $1,500 in unauthorized fees for
19 negotiating a lien from a prior accident, that she was not hired to do, and over $4,000 in costs for
20 that unrelated lien. The lien also did not consider the damage Crosby had done to Bacigalupe’s case,
21 including, but not limited to, failing to conduct discovery, failing to retain and disclose experts, and
22 failing to prepare the case for trial.
23 16. Despite her fraudulent lien, Crosby demanded full payment and threatened
24 defendants Lin and Pang in that action with litigation if the full lien amount was not distributed to
25 her directly. Crosby also threatened Bacigalupe with litigation and collections if her fees were not
26 immediately paid. Offers to resolve the lien were made to Crosby on September 16, 2021 and
27 December 1, 2021.
28 17. Crosby has repeatedly indicated that she hopes that no settlement is completed in

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COMPLAINT FOR DECLARATORY RELIEF
1 Bacigalupe v. Pang: “No one will be more thrilled should you take the case to trial with success and
2 get a $1,000,000.00+ verdict as I would be entitled to 40% or $400,000.00+.” When asked to allow
3 funds to be released in accordance with the Rules of Professional Conduct and advised of her
4 continuing fiduciary duty of utmost good faith and fair dealing with her former client, Crosby
5 denied such a continuing duty. Crosby responded: “As you have stated Ms. Bacigalupe is no longer
6 [sic] client she’s yours. YOU have the obligation to her.”
7 18. In response to Bacigalupe’s offers to resolve the lien, on April 5, 2023 Crosby filed
8 suit in San Francisco Superior Court against Bacigalupe and Bacigalupe’s attorneys Tenny
9 Mirzayan, Stephen Fishback, and the law firm Keller, Fishback & Jackson, LLP in an effort to bully
10 Bacigalupe into paying her fraudulent lien. Crosby’s Complaint causes of action against Bacigalupe
11 included (1) Breach of Contract, (2) Quantum Meruit, (3) Fraud, (4) Anticipatory Breach, (5)
12 Interference with Contract, and (6) Defamation in the action entitled Crosby v Bacigalupe, et al.,
13 San Francisco Superior Court Case No. CGC-23-605647. (Exhibit A.)
14 19. In response to the frivolous filing, Bacigalupe responded by filing a Special Motion
15 to Strike the entire complaint and as to each and every cause of action as a Strategic Lawsuit
16 Against Public Participation pursuant to Code of Civil Procedure Section 425.16.
17 20. On September 15, 2023, the Hon. Curtis E.A. Karnow of the San Francisco Superior
18 Court granted Bacigalupe’s Special Motion to Strike in the action entitled Crosby v. Bacigalupe, et
19 al., San Francisco Superior Court Case No. CGC-23-605647. (Exhibit B.) An order granting a
20 Special Motion to Strike pursuant to Section 425.16 is a final judgment on the merits. (Marshall v.
21 Webster (2020) 54 Cal.App.5th 275; Melbostad v. Fisher (2008) 165 Cal.App.4th 987; Sweetwater
22 Union High Sch. Dist. v. Gilbane Bldg. Co., (2019) 6 Cal.5th 931; Kimoanh Nguyen-Lam v. Sinh
23 Cuong Cao, (2009) 171 Cal.App.4th 858; See also Lam v. Ngo, (2001) 91 Cal.App.4th 832.)
24 21. Similarly, Bacigalupe’s attorneys filed a Special Motion to Strike the Complaint in
25 the action entitled Crosby v Bacigalupe, et al., San Francisco Superior Court Case No. CGC-23-
26 605647. Again, the Special Motion to Strike was granted on November 17, 2023, and a judgment
27 entered against Crosby. (Exhibit C.) Crosby was ordered to reimburse Bacigalupe and her attorneys
28 for the attorneys’ fees and costs associated with her resounding losses in the amounts of $13,260.00

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COMPLAINT FOR DECLARATORY RELIEF
1 and $36,201.00 respectively.
2 22. Crosby, unable to accept her losses, filed a motion to vacate and reconsider the
3 September 15, 2023 Order granting Bacigalupe’s Special Motion to Strike. Crosby was handed
4 another defeat, with the Court noting that “the order granting the motion to strike was the equivalent
5 of a judgment” and that Crosby’s motion to vacate and reconsider lacked merit. (Exhibit D.) Crosby
6 was ordered to further reimburse Bacigalupe in the amount of $10,000 for attorneys’ fees.
7 23. On December 22, 2023, the Hon. Curtis E.A. Karnow ordered Bacigalupe be
8 dismissed with prejudice from Crosby v Bacigalupe, noting “the granting of an anti-SLAPP motion
9 results in a judgment with res judicata effect.” (Exhibit E.)
10 24. An actual controversy has again arisen and now exists between Bacigalupe and
11 Crosby.
12 25. Though Crosby’s attorneys’ fees and costs related to her representation of Bacigalupe
13 in Bacigalupe v. Pang were adjudicated against her on the merits, on December 13, 2023 Crosby
14 filed another improper and fraudulent attorney fee lien in the Bacigalupe v. Pang. This retaliatory
15 and frivolous lien seeks the staggering sum of $170,000.00. (Exhibit F.)
16 26. Crosby’s attorney fee lien, which is the subject of this instant action, is based on the
17 same attorneys’ fees contract and claims adjudicated by the Court in Crosby v Bacigalupe, et al.,
18 San Francisco Superior Court Case No. CGC-23-605647. Res judicata and collateral estoppel
19 preclude any lien by Crosby in the Bacigalupe v. Pang matter.
20 27. Furthermore, Crosby has not and cannot establish the validity or amounts of the
21 subject lien and is therefore not entitled to any recovery. By way of just one example, the lien
22 includes claims for attorneys’ fees and costs associated with Crosby’s frivolous and meritless
23 lawsuits against Bacigalupe and her attorneys in Crosby v Bacigalupe, et al., San Francisco
24 Superior Court Case No. CGC-23-605647. She even seeks payment for the attorneys’ fees she was
25 ordered to pay in her Special Motion to Strike losses. Notably, Crosby has refused to comply with
26 the Court’s November 17, 2023 order to pay attorneys’ fees and costs to Tenny Mirzayan, Stephen
27 Fishback, and Keller, Fishback & Jackson, LLP, instead directing them to seek reimbursement from
28 Bacigalupe.

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COMPLAINT FOR DECLARATORY RELIEF
1 28. Crosby and Bacigalupe were both parties to Crosby v Bacigalupe, et al., San
2 Francisco Superior Court Case No. CGC-23-605647 in which a judgment on the merits was
3 reached. Crosby’s fee lien involves the same claims, between the same parties, following a final
4 judgment on the merits.
5 29. Crosby’s liens have interfered with the ability of the parties in Bacigalupe v. Pang, et
6 al, San Francisco Superior Court Case No. CGC-19-579618 to resolve the matter and distribute the
7 funds as necessary. A judicial declaration invalidating Crosby’s liens is necessary at this time.
8 PRAYER FOR RELIEF
9 WHEREFORE, Plaintiff, prays for relief as follows:
10 a) An Order declaring Crosby’s attorney fee liens in Bacigalupe v. Pang, et al, San
11 Francisco Superior Court Case No. CGC-19-579618 invalid;
12 b) An Order declaring that Bacigalupe has no duty or obligation to Crosby;
13 c) Reasonable attorneys’ fees, interest, and costs to the full extent permitted by law;
14 and
15 d) All such other and further relief as this Court may deem just and proper.
16 Dated: February 6, 2024 KELLER, FISHBACK & JACKSON LLP
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By:
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Tenny Mirzayan
19 Attorneys for Plaintiff

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COMPLAINT FOR DECLARATORY RELIEF
Exhibit A
SUM-100
SUMMONS FOR COURTUSE OM.Y
f$OLO l'AIIA USO DELA COR1FJ
(CITACION JUDICIAL)
NOTICE TO DEFENDANT:
(A VISO AL DEMANDADO):
Bethania Bacigalupe; Temy Mirzayan; Stephen M. Fishback; KeUer, Frshback & Jackson LLP; and
DOES 1-20 - -
YOU ARE BEING SUED BY PLAINTIFF: .
(LO ESTA DEMANDANDO EL DEMANDANTE):
Karen Matcke Crosby

NOTICE! You have been sued. The court n.y decide against you wahout your being heard unless you responnnafo legal com,cto si desea que procesen su caso en le eotfe. Es posible que haya un formulario qllff IUded pueda UStJt'para su '"l)uestll.
Puede enoontrar estos formularfos de le corte y ma informaci6n en el Cenl10 de Ayuda de las Cortes de Califomia (www.,uco,te.ca.gov,I, en le
biblioteca de /eyes de su c:ondado o en /a corte que le quede mu cen;a. Si no puede pega, /a cuota de p,Nentaci6n, plda al sea8tario de le code que
le c1' un A:>nnulario de exencidn de P8f10 de cuoms. SI no p,esenta su respuesta a tlempo, puede perder el caso por incumplimlento y la co,te le f)()(H
quitar su sued>, dinero y bienes sin mu sdvertencia.
Hay Ol10s requlsitos /eg(Ws. Es reoomendllble que llame a un abogado inmedistamente. Si no conoce a un abogado, puede /lan-.r a un servicio de
remisi6n a 8bogados. Si no puede pagar a un abogado, es poslble que cumpla con los requisilos pare obtener StlMCiOs legaleS aratunos de IM1
programa de servicios Jegales sin fines de /uao. Puede encontrar esros grupos sin tines de lucro en el lifio ..eb de Califomis LAgaJ SMiees,
(IWIW.lawhelpcaJifomis.org), en el Centro de Ayude de las Cortes de Cslifomla, (www.suconit.ca.govJ o � en contacto con la corte o el
colegio de abogados locales. A VISO: Por /ey, la corle tiene derecho s reclsmsr las cuocas y los a>at>s exemos por lmponer un gravamen sabre
cua/quier n,cuperaci6n de $10,000 6 m.u de valor recibida mediante un IICWtdo o une concesidn de ertJitraje en un csso de denlcho civil. Tiene que
pagar el gravamen de la oorte antes de que la corte pueda dNechar el caso.
The name and address of the court Is:
(El nombre y direcci6n de la corte u): San Francisco Superior Court CGC-23-605647
400 McAllister Street, San Francisco, CA 94102

The name, address, and telephone number of plaintiff's attorney, or plaintiff without an attorney, is:
(B nombte, la direcci6n y el nwnero de telefano def abogado de/ demendante, o de/ dem811dante que no tiene abogacto, es):
Karen Matcke Crosby, 2001 Clayton Road, #200, Concord, CA 94520, (925) 756-6062
DATE: Clerk, by • Deputy
(Fecha) 04/07/2023 (Secmtario) JEFFREY FLORES (Adjunto}
(Forproof ofservice of this summons, use Proof of Service of Summons (fonn POS-010).)
(Para prueba de entrega de esta citation use el formulario Proof of Service of Summons, (POS-010)).
[SEAL --- NOTICE TO THE PERSON SERVED: You are served
1. D as an individual defendant.
2. D as the person sued under the fictitious name of (:specify):

3. tiJ on behalfof(specifyJ: KELLER, FISHBACK & JACKSON LLP
under: D CCP 418.10 (corporation) D CCP -416.60 (minor)
D CCP 416.20 (defmd corporation) D CCP 416.70 (conservatee)
Ci] CCP 416.40 (association or partnership) D CCP 416.90 (authorized person)
D other (specify):
4. D by personal delivery on (date):
11111
l'tnn.-.-StrlllnllllillYU..
Jlllll:illleoindl'111Clal!Nll
SUM-100 (RI¥. JiAy 1, 2009!
1 Karen Matcke Crosby
2001 Clayton Road, #200
2 Concord, CA 94520 ELECTRONICALLY

3
Telephone: (925) 756-6062 FILED
Email: kmcrosby@outlook.com Superior Court of California,
County of San Francisco
4
Plaintiff, Pro per 04/05/2023
5 Clerk of the Court
BY: JEFFREY FLORES
Deputy Clerlc
6

7
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO
9
Unlimited Jurisdiction
10 CGC-23-605647
11
KAREN MATCKE CROSBY, CASE NO.
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Plaintiff, COMPLAINT AS TO BACIGALUPE FOR
13 BREACH OF CONTRACT, FRAUD,
QUANTUM MERUIT; AS TO REMAINING
14 vs. DEFENDANTS FOR BREACH OF
15 CONTRACT, INTERFERENCE WITH
BETHANIA BACIGALUPE; CONTRACT AND DEFAMATION,
16 TENNY MIRZAYAN; PUNITIVE DAMAGES Civil Code 3333
STEPHEN M. FISHBACK;
17 KELLER, FISHBACK & JACKSON LLP; and Date:
DOES 1-20. Time:
18 Dept:
Defendants,
19 Honorable

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23 Plaintiff KAREN MATCKE CROSBY is informed and believes and thereby complains
24 and alleges as follows:
25 INTRODUCTION
26 1. Defendant BETHANIA BACIGALUPE ("Bacigalupe") was an adult resident of
27 San Francisco, California, who suffered a personal injury accident on October 1, 2017. On
28 October 19, 2017, she retained the legal services of Horacio Martinez Baca, Esq., a San

COMPLAINT FOR BREACH OF CONTRACT, FRAUD, ETC.
Francisco attorney, who represented her claim. Mr. Baca died on October 18, 2018, leaving

2 Defendant's personal injury claim unresolved.

3 2. Plaintiff KAREN MATCKE CROSBY is an attorney practicing law in Walnut

4 Creek and in San Francisco, California, at all times mentioned herein. Plaintiff was appointed

5 Law Practice Administrator of Mr. Baca' s legal practice and had invited Ms. Bacigalupe to find
6 new legal counsel to represent her regarding the October 1, 2017, accident. Ms. Bacigalupe

7 failed to find a new attorney.
8 3. Defendant Bacigalupi after having been given written notice and months to retain

9 other legal counsel elected to enter into a Retainer Agreement with Plaintiff on April 5, 2019, at

10 the San Francisco office, under the terms of which, Plaintiff agreed to prosecute Bacigalupe's

11 personal injury claim in exchange for Thirty-Three and One-Third Percent (33-1/3%) if settled

12 at claim stage, and Forty Percent (40%) of any gross recovery, if a lawsuit was filed. (See

13 Exhibit A attached hereto). Marisol Martinez was secretary for Plaintiff and explained the

14 Retainer Agreement to Defendant Bacigalupe, both in English and Spanish.

15 4. Plaintiffs office was initially unable to obtain documents for Defendant

16 Bacigalupe as misinformation was provided regarding where Defendant Bacigalupe had
17 received treatment other than chiropractic care from Dr. Sera (inaccurate names, etc.).

18 5. On September 27, 2019, Plaintiff filed legal action (in San Francisco Superior
19 Court, Case No. CGC-19-579618) on Defendant Bacigalupe' s behalf. Plaintiff propounded
20 discovery, responded to discovery requests, defended Defendant Bacigalupe' s deposition and

21 noticed defense depositions in the case as well as contacted witnesses, arranged for experts and

22 responded to supplemental discovery requests.
23 6. Trial was initially set for September 2020, was continued by stipulation, and reset

24 to February of 2021, to allow both sides time to complete unfinished discovery and expert
25 disclosure and depositions. With Defendant Bacigalupe' s consent, a Code of Civil Procedure
26 section 998 offer was made at $200,000.00. (See Exhibit B, a true and correct copy of a letter
27 dated October 29, 2020, from State Farm Counsel, Michael Welch, attached hereto and
28 incorporated herein by reference. Mediation was conducted in December of 2020 with notices of

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COMPLAINT FOR BREACH OF CONTRACT, FRAUD, ETC.
expert and treating physician depositions scheduled based upon witness availability.
2 7. In early January of 2021 , after months of advancing Defendant Bacigalupe' s case
3 and on the eve of trial, Plaintiff negotiated a proposed settlement on her behalf of $150,000.
4 Another trial extension was requested by both sides and hearing was set for January 14, 2021, to

5 give Defendant Bacigalupe time to consider settlement and extend discovery.
6 8. Defendants, TENNY MIRZAYAN ("Mirzayan") and STEPHEN FISHBACK

7 ("Fishback") are attorneys with KELLER, FISHBACK & JACKSON LLP ("LAW FIRM") in
8 Agoura Hills, California, who improperly solicited Defendant Bacigalupe to place her pending

9 litigation with them and IMMEDIATELY terminate Plaintiff, thereby interfering with the

10 existing representation contract and Plaintiffs ability to consummate the pending settlement or
11 to communicate with Ms. Bacigalupe. Papers were filed with the court to appear for Defendant

12 Bacigalupe at the hearing filed by Plaintiff at her office's expense.
13 9. At all times Defendants Mirzayan, Fishback and LAW FIRM were aware of the
14 Retainer Agreement which required five days ' prior notice for termination of representation and
15 gave Plaintiff 40% of any gross recovery on the case, no matter how procured. They were aware

16 sums had been advanced on Bacigalupe' s behalf from Plaintiffs office and that there was an
17 attorney's lien at $400.00 per hour for time spent and for costs and expenses incurred.
18 10. Plaintiff does not presently know the true names and capacities of the Defendants

19 sued herein as DOES 1 through 10, inclusive. Plaintiff will seek leave of court to amend this
20 complaint to allege said DOE defendants' true capacities as soon as Plaintiff ascertains them.

21 A. BREACH OF CONTRACT - BACIGALUPE
22 11. Plaintiff restates and incorporates Paragraphs 1 through 9 herein by reference as

23 though fully set forth herein.
24 12. Defendant Bacigalupe failed to give notice of termination of the Retainer
25 Agreement, failed to provide five days' notice as required, and failed to contact Plaintiff
26 regarding her concerns. Defendant Bacigalupe was aware court proceedings were scheduled for

27 January 14, 2021 , and had agreed to the request for trial extension.
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COMPLAINT FOR BREACH OF CONTRACT, FRAUD, ETC.
13. Defendant Bacigalupe failed to pay the expenses and costs of the case, or the
2 attorney lien prior to transferring her case to new counsel. Keller, Fishback and Jackson, LLP

3 likewise failed to pay for expenses and costs advanced or attorney fees incurred prior to
4 transferring the case.

5 B. FRAUD - BACIGALUPE
6 14. Plaintiff restates and incorporates Paragraphs 1 through 13 herein by reference as

7 though fully set forth herein.

8 15. Defendant Bacigalupe, unwilling to settle her case and has refused the proposed
9 settlement offers, and failed to go to trial or properly develop evidence to prove her case. Such

1O facts and representations she knew would be relied upon by Plaintiff. Should her allegations

11 appear to be false representations asserted with reliance by Plaintiff in expending time and

12 money on the case, with Defendant's knowledge that the filing of legal action by Plaintiff would
13 create debt, her intention to not make payment and cause financial harm constitutes fraud.

14 Plaintiff has suffered substantial financial loss.

15 16. Defendant Mirzayan interjected herself at a court appearance on January 14,
16 2021, which had been scheduled to request a continued trial date, claiming to represent Ms.

17 Bacigalupe with no substitution of attorney on file. The court failed to extend the trial date at

18 that time. A true and correct copy of Exhibit C, Notice of Appearance On Behalf of Plaintiff, is

19 attached hereto and incorporated by reference.

20 17. Upon demand, on or about January 13, 2021, Plaintiff made best efforts to

21 transfer all non-privileged and protected (work product) files and informed Defendants

22 Mirzayan and Fishback that there was an attorney fee lien to be paid upon conclusion of the case

23 and that medical and attorney liens were pending and costs were advanced. Upon receipt of the
24 request for substitution of attorney, Plaintiff wrote "subject to attorney lien" upon signing the

25 substitution to commemorate the agreement made with Ms. Mirzayan to pay attorney lien and
26 costs owed. Ms. Mirzayan subsequently signed and filed the substitution of attorney with the
27 court. See attached Exhibit D, a true and correct copy of the substitution prior to filing with the
28 court.

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COMPLAINT FOR BREACH OF CONTRACT, FRAUD, ETC.
18. By early January of 2021, Plaintiff had invested substantial sums in payment of
2 costs and expended significant time conducting discovery and in preparing for trial, even with
3 substantial delays due to COVID, researching and interviewing witnesses who were first
4 responders, interviewing experts, preparing depositions of witnesses, interviewing treating
5 physicians, attending mediation and procuring a proposed settlement with State Farm. She had

6 advised Defendant Bacigalupe that a proposed settlement of $150,000.00 was underway.
7 19. Defendant Bacigalupe failed to reveal relevant facts impacting the case to
8 Plaintiff and resisted to participate in evidence development, including testing to prove the

9 neurologic decline she claimed.
10 20. After finally getting to speak with first responder treating physicians in late 2020

11 to early 2021, and finding the expense of trial beyond risk and reason, proper settlement of the
12 case was appropriate and was recommended.
13 C. QUANTUM MERUIT
14 21. Plaintiff restates and incorporates Paragraphs 1 through 20 herein by reference as

15 though fully set forth herein.
16 22. Under common law quantum meruit, services were provided and expenses and

17 cost paid on Defendant Bacigalupe' s behalf at the expense of Plaintiff. Should a contract be
18 rendered void or unenforceable, Plaintiff is entitled to the value of the legal assistance and
19 expenses rendered on Defendant Bacigalupe' s behalf, as she was benefitted by those services

20 performed by Plaintiff.
21 D. INTERFERENCE WITH CONTRACT

22 23. Plaintiff restates and incorporates Paragraphs 1 through 22 herein by reference as
23 though fully set forth herein.
24 24. Defendants Mirzayan and Fishback and LAW FIRM were aware of the Retainer
25 Agreement between Plaintiff and Defendant Bacigalupe and wrongfully induced Defendant
26 Bacigalupe to breach her agreement with Plaintiff, thereby interfering with the contract by
27 stealing the client and by denying Plaintiff the ability to further speak to Defendant Bacigalupe.

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COMPLAINT FOR BREACH OF CONTRACT, FRAUD, ETC.
25. Plaintiff advised Defendants that there was an attorney fee lien and substantial
2 expenses, and medical liens were pending that would have to be paid. Defendants were further

3 advised that they needed to retain medical experts on claimed medical and neurological issues
4 for trial, which had been or were being arranged by Plaintiff's office, should settlement not be
5 reached.

6 26. On or about August 3, 2021 , a Notice of Attorney's Lien was filed in the
7 underlying case for Defendant Bacigalupe. (See Exhibit E, a true and correct copy of Notice of

8 Attorney's Lien).

9 27. On or about May 12, 2022, a Motion For Relief From the Attorney's Lien was
10 filed by Ms. Mirzayan and is set for hearing on June 15, 2022. Plaintiff, who was no longer

11 involved in the case other than a valid attorney lien pending, attempt to e-file opposition papers,

12 which filing was rejected. Unprotected and defamatory statements were made against Plaintiff in

13 these pleadings. Plaintiff was not a party to that action nor was she an attorney representing any

14 party at that time. By permission of the Court, she was permitted to have opposing papers

15 considered.
16 28. On or about May 11, 2022, Defendant Bacigalupe was sent her rights to file a fee
I7 dispute with forms from the San Francisco Bar Association. Also in 2022, Opposing Counsel for
18 State Farm, had filed an abandonment of settlement due to Defendant's refusal to acknowledge
19 the Notice of Attorney's Lien filed with the court.
20 29. Court filings show that Ms. Bacigalupe, Mirzayan, Fishback and LAW FIRM had
2I every intention of breaching their agreement to pay Plaintiff according to the Retainer
22 Agreement signed by Bacigalupe and to breach the agreement to pay the attorney lien to
23 Plaintiff as had been previously represented in their prior conversation prior to the Court
24 appearance on January 14, 2021. They had no intention of honoring Defendant Bacigalupe' s
25 Retainer Agreement as promised and were disinterested in the previous medical lien
26 commitments, with full intention of stealing the pending settlement and interfering with the
27 existing contract agreement that Bacigalupe had with Plaintiff.
28 Ill

COMPLAINT FOR BREACH OF CONTRACT, FRAUD, ETC.
E. BREACH OF CONTRACT
2 (As to DEFENDANTS MIRZAYAN, FISHBACK AND LAW FIRM)

3 30. Plaintiff restates and incorporates Paragraphs 1 through 29 herein by reference as
4 though fully set forth herein.
5 31. At all times in their representation of Defendant Bacigalupe, Mirzayan, Fishback
6 and LAW FIRM were aware that an attorney lien had been paid by Plaintiff to the prior attorney
7 and another lien was held by Plaintiff for time expended and costs and fees advanced by
8 Plaintiff's law practice.
9 32. In August of 2021, a settlement appeared to be reached in the underlying case and
IO a time and costs attorney fee lien was filed with the court. The bill total claimed in the Notice of
11 Attorney's Lien was $48,905.00. A Motion to Enforce Settlement was filed on or about
12 November 16, 2021 , with opposition thereto.
13 33 . Defendants made numerous efforts to extinguish Plaintiff's attorney fee lien in
14 2022, and the Retainer Agreement, which calls for 40% of gross settlement at any conclusion,
15 settlement, or trial outcome no matter who or how procured. Their intention was to cheat
16 Plaintiff out of payment for the work and money expended on Defendant Bacigalupe' s behalf.
17 34. Plaintiff believes Defendants ' willful, malicious intent to breach the Retainer
18 Agreement of April 5, 2019 and to fail to pay any attorney fee lien recorded and fail to
19 acknowledge quantum meruit rights to recovery, creating a breach of both contracts and
20 promises made by all Defendants in January of 2021 prior to the substitution of attorney being
21 signed.
22 35 . All other liens on the case held by Plaintiffs office were forwarded to
23 Defendants Mirzayan and Fishback for payment, yet many claims continue to be raised against
24 Plaintiff. Damage to Plaintiff's good reputation for reliably paying on liens has occurred.
25 F. ANTICIPATORY BREACH
26 36. Plaintiff restates and incorporates Paragraphs 1 through 35 herein by reference as
27 though fully set forth herein.
28 ///

7
COMPLAINT FOR BREACH OF CONTRACT, FRAUD, ETC.
37. Defendant Bacigalupe's case has not yet come to trial or settled but has been

2 unreasonably delayed to push the statute of limitations on Plaintiffs action. Defendant LAW

3 FIRM and Ms. Mirzayan and Mr. Fishback have not responded to the Notice of Attorney's Lien

4 lien.

5 38. Plaintiff is informed and believes all Defendants have no intention of paying

6 Plaintiff for the reasonable value of services rendered.

7 39. Should Plaintiff tum down every settlement offered and recover nothing she still

8 owes Plaintiff for the reasonable value of services rendered after lawsuit was filed and for all

9 costs and expenses advanced on her behalf. Defendants cannot run from their promised attorney

1o lien payments as agreed upon.
11 G. DEFAMATION AND SLANDER OF REPUTATION
12 40. Plaintiff restates and incorporates Paragraphs I through 39 herein by reference as

13 though fully set forth herein.
14 41. Plaintiff is highly regarded and well known as a good and honest attorney who is

15 known to negotiate or pay off all pending liens prior to disbursing final settlement of funds with

16 litigants.

17 42. By extending settlement and disrupting the legal representation by Plaintiff, all

18 persons who had extended services to Defendant Bacigalupe and were owned money, were

19 denied payment for years and upon transfer of the liens to Mirzayan, Fishback and LAW FIRM,

20 were not kept apprised of the circumstances.

21 43. The failure to make payment to lien holders reflected badly on Plaintiffs legal

22 reputation.
23 44. LAW FIRM, Mirzayan and Fishback further defamed and made false statements

24 regarding Plaintiff in court filings of a case in which Plaintiff was not a party, for the sole
25 purpose of damaging her reputation or to threaten her to release her attorney fee lien. In her
26 Motion For Relief From Attorney's Fees, Ms. Mirzayan falsely accuses Plaintiff of violating
27 State Bar Rules and alleges other misconduct when no complaint had been filed against Plaintiff,
28 and where Plaintiff was not aware of any such action by the State Bar. Plaintiff is informed and

COMPLAINT FOR BREACH OF CONTRACT, FRAUD, ETC.
believes that her name search will reveal these pleadings in court documents as they were not
2 filed as confidential. Plaintiff is not aware of any disciplinary action against her at this time.
3 45. Such public negative statements, and actions cost Plaintiff new clients, work
4 referrals from lien-holding practitioners and others in the community and great financial losses
5 were suffered by Plaintiffs law practice.
6 H. PUNITIVE DAMAGES
7 46. Plaintiff restates and incorporates Paragraphs 1 through 45 herein by reference as

8 though fully set forth herein.
9 47. Plaintiff believes Defendants Mirzayan, Fishback and LAW FIRM intended with
10 willful and malicious behavior to deprive Plaintiff of the fees she was owed and resorted to
11 interference with contract and defamatory tactics to cheat Plaintiff out of her money in a manner
12 that amounts to intentional negligence requiring punitive damages.

13 WHEREFORE, PLAINTIFF PRAYS AS FOLLOWS:
14 1. A finding that Defendant Bacigalupe has breached her contract with Plaintiff.

15 2. A finding that Defendants Mirzayan, Fishback and LAW FIRM breached their

16 obligation with Plaintiff to pay the attorney liens;
17 3. A finding that Defendants Mirzayan, Fishback and LAW FIRM unlawfully and
18 intentionally interfered with Plaintiffs contract with Defendant Bacigalupe;

19 4. A finding that Defendants, and each of them, have defamed and slandered
20 Plaintiff so as to damage her professional reputation and cause her irreparable financial
21 damages;
22 5. A finding of punitive damages (Civil Code section 3333) against Defendants
23 Mirzayan, Fishback and LAW FIRM for willful and malicious conduct to defame and destroy
24 the reputation and legal practice of Plaintiff.
25 6. Payment of the attorney lien as recorded in prior court be paid in the amount of
26 $48,905.00, reasonable value of services at $400 per hour or for 40% of Plaintiffs gross
27 recovery whichever is greater;
28 7. For costs of suit herein, and

COMPLAINT FOR BREACH OF CONTRACT, FRAUD, ETC.
8. For such other and further relief as the Court may deem just and proper.
2

COMPLAINT FOR BREACH OF CONTRACT, FRAUD, ETC.
VERIFICATION
2 1, KAREN MATCKE CROSBY, declare.

3 I am the plaintiff in the above-entitled action. I have read the foregoing Complaint and
4 know the contents thereof; and I declare that the matters stated in the foregoing document are
5 true of my own knowledge, except as to the matters which are stated on information or belief
6 and as to those matters I believe them to be trne.
7 I declare under penalty of pe,j ury under the laws of the State of California that the

8 foregoing is true and eonect.

9 Executed on April 3, 2023, at {J,.,,<'e>-: J , California.
10

11 K
12

11
COMPLAINT FOR BREACH OF CONTRACT, FRAUD, ETC.
EXHIBIT A
RETAINJ,R AGREEMENT
(CALIFORNIA BUSINESS & PROFESSION CODE 6147)

I, \?~\1\.\6.., ·J3,~c.:\~~~ hereinafter referred to as Client(s). do hereby
retain the KAREN MATCKE CROSBY to prosecute any legal action which I may have
for injuries and/or property damages resulting from the incident which occurrecl on or
about the S day of ~~ \ 20___,_I~.._-

No fee shall be charged for attorncy(s) service if there is no recovery.

I agree that any medical bills or legal expenses. incurred as a result of this accident, not
included in the distribution agreement will be my sole responsibility X @ (please
initial). After litigation is needed a new agreement and retainer for cost is required.

As compensation for services, KAREN MATCKE CROSBY shall receive 33.33 1/3%
prior to suit being filed and 40% thereafter of all gross amounts received. including but
not limited to amounts received by client(s) or gross amounts received by any other
person or organization on behalf of client(s) by way of compromise, settlement, judgment
or otheiwise. In addition to the above compensation, client(s) agrees to pay any and all
costs incuned. There is a flat sum of$300.00 to be paid at the conclusion of client's case
to cover costs of l'eports, investigation, postage, copies, telephone, and other incidental
expenses. Other costs, if any, are calculate at the conclusion of client's case. Karen
Matcke Crosby Attorney shall have a lien upon client's claim and/or client's cause of
action. any judgment obtained thereon and the proceeds of any recovery for an attorney's
fees and for any costs at her regular billing rate of $400.00 per hour. which may have
been- advanced in prosecuting client's claim. In any contingency, fee arrangement is not
set by law but is negotiable between attorney and client(s).

If in the opinion of the attorney handling your c~e, it is detennined that there is either no
valid liability insurance to present a claim against or that the client i.s totally partially at
fault, or for any other cause, Karen Matcke Crosby, the Attorney, shall have, in her
discretion, the option of withdrawing as attorney in this malter. Notice of withdrawal
shall take effect upon mailing of notice to client's last known address.

Attorney will submit a general representation in this matter.
Client agrees to be truthful to Attorney, to cooperate, to keep Attorney informed of any
information or developments which may come to Client's attention, respond in a timely
manner, to abide by this agreement, to pay Attorney's biU on time and to keep Attorney
advised as to Client's address, telephone number, email and whereabouts. Client will
necessary at legal proceedings.

Client(s) agrees to cooperate fully in all phases of litigation. and immediately notify
Attorney, this Agreement shall nevertheless remain binding to the fuJJ extent of the law,
and the Attorney(s) are expressly granted a lien for any and all costs advanced by
Attomey(s) office on behalf of client.
DISCHARGE and WJTHDRAWAL. Client may discharge Attorney at any time with
prior written notice of not less than 5 days. Attorney may withdraw with 5 dll.urior
wti1ten npti~ mailed to the address in the file of client, .

KAREN MATCK.E CROSBY, Attorney, is hereby granted a special power of attorney to
settle or compromise any claim in client's behalf as he, in his judgment, deems pair and
reasonable under of attorney to sing and/or. endorse any releases, settlement draft/check
on client's behalf and is authorized to sign client's name, and instructed to hold client's
portion ofthe settlement in trust for client and to take his fee and pay any and all medical
bills for which client has signed liens out of any settlement or judgment resulting from
this incident X ::Sb (please initial)
I declare, under penalty ofperjwy. that no promise of recovery has been made to me by
or on behalf of KAREN MATCKE CROSBY
TI1is retainer constitutes the entire retainer agreement between client and KAREN
MATCKE CROSBY, and is the only retainer agreement signed by client with KAREN
MATCKE CROSBY.
If any portion of this agreement is deemed void or unenforceable, that in no way shaH
affect the validity of any other provisions contained in this agreement.

Executed this_-=S,.___day of_..._,A-+,::;,_re_1/_ _ _ 20.f..i_ at San Francisco,
1
California.

Client's Signature X

Name, telephone and address :_ _ _ _ _ _ _ _ _ _ _ __
DESIGNATION OF COUNSEL

YOUR CLAIM NUMBER: _ _ __ __ _

DATE oF INJURY: Oc\ \. 2a 1+-
Pursuant to the requirements of the California Insurance Code Unfair Practices Act, and specifically, in order
to comply

Case Info

Judge

Anne-Christine Massullo Track Judge’s New Case

Case No.

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Document Filed Date

February 07, 2024

Case Filing Date

February 07, 2024

County

Parties

BACIGALUPE, BETHANIA Plaintiff
CROSBY, KAREN MATCKE Defendant
MIRZAYAN, TENNY Attorney for the Plaintiff
Stephen Fishback Attorneys for Plaintiffs
Daniel Keller Attorneys for Plaintiffs
Tenny Timmerman Attorneys for Plaintiffs
Horacio Baca Attorney
Dan Bolton Attorneys for Plaintiffs
David Nemecek Attorneys for Defendants
Douglas Dukelow Attorneys for Defendants
John Jackson Attorneys for Defendants

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Document for BETHANIA BACIGALUPE VS. KAREN MATCKE CROSBY

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