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1 CHRISTOPHER D. SULLIVAN (148083)
csullivan@diamondmccarthy.com
2 DIAMOND MCCARTHY LLP ELECTRONICALLY
3
150 California Street, Suite 2200 F I L E D
Superior Court of California,
San Francisco, California 94111 County of San Francisco
4 Telephone: (415) 692-5200
Facsimile: (415) 263-9200
02/14/2020
Clerk of the Court
5 BY: SANDRA SCHIRO
Deputy Clerk
Attorneys for Plaintiff, LEGALIST, INC., a
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Delaware corporation
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SAN FRANCISCO
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12 LEGALIST, INC., a Delaware corporation, Case No. CGC-20-582932
13 Plaintiff, Reservation No. 02140317-02
14 MEMORANDUM OF POINTS AND
V.
AUTHORITIES IN SUPPORT OF
15 APPLICATION OF PLAINTIFF
RUSSEL MYRICK, an individual; RDM LEGALIST, INC. FOR A STAY OF
16 LEGAL GROUP, a California sole PROCEEDINGS PURSUANT TO
proprietorship, CALIFORNIA CODE OF CIVIL
17 PROCEDURE SECTION 1281.8(d)
18 Defendants.
Date: March 17, 2020
19 Time: 9:30 a.m.
Dept.: 302
20 Judge: Hon. Ethan P. Schulman
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I. INTRODUCTION
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Plaintiff, LEGALIST, INC., a Delaware corporation ("Legalist") respectfully submits this
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Memorandum of Points and Authorities in support of its motion pursuant to California Code of
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Civil Procedure section 1281.8(d) for an order staying all proceedings under Legalist's Complaint
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other than Legalist's concurrently filed application for a right to attach order, a temporary
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protective order, and a writ of attachment ("Attachment Application") pending arbitration.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S APPLICATION OF
PLAINTIFF LEGALIST, INC. FOR A STAY OF PROCEEDINGS PURSUANT TO CALIFORNIA CODE OF
CIVIL PROCEDURE SECTION 128 l .8(O)
1 II. FACTUAL BACKGROUND
2 On February 12, 2020, Legalist filed a Complaint for Breach of Contract against Defendants
3 RUSSEL MYRICK, an individual ("Myrick") and RDM LEGAL GROUP, a California sole
4 proprietorship ("RDM") (together, "Defendants"). Declaration of Curtis Smolar, ,r,r 5-6, Exhibit 1
5 (Complaint). Legalist's Complaint concerns Defendants' breach of a December 6, 2018 Litigation
6 Funding Agreement between Legalist and Defendants ("LFA"). Id., ,r 7.
7 The LF A contains a dispute resolution provision requiring that any dispute, claim, or
8 controversy arising out of or relating to the LF A or the breach, termination, enforcement,
9 interpretation, or validity of the LF A be determined by arbitration in San Francisco, California. Id. ,
10 ,r 8; Exhibit 1 (Complaint), Attachment BC-1, ,r 21. Legalist's Complaint contains a cause of
11 action for breach of contract against Defendants that is within the scope of the arbitration provision
12 intheLFA. Id. ,,r 8.
13 Contemporaneously with the filing of this Motion, Legalist is filing its application for a
right to attach order, a temporary protective order, and a writ of attachment against Myrick in
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accordance with California Code of Civil Procedure section 1281.8(b) on the ground that the
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arbitration award to which Legalist may be entitled may be rendered ineffectual without such
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provisional relief ("Attachment Application"). Id. , ,r 9.As part of its Attachment Application,
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Legalist is reserving its right to arbitration under the LF A. Id.,,r 10.
In accordance with California Code of Civil Procedure section 1281.8(d), concurrent with
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the filing of its Attachment Application Legalist is filing this motion for an order staying all other
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proceedings in this action under Legalist's Complaint against Defendants other than Legalist's
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Attachment Application pending arbitration. Id.,,r 11. By filing its Attachment Application and
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this motion, Legalist is not waiving and does not waive its right to arbitration under the LF A. Id., ,r
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12.
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Ill
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Ill
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Ill
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Ill
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF ' S APPLICATION OF
PLAINTIFF LEGALIST, INC. FOR A STAY OF PROCEEDINGS PURSUANT TO CALIFORNIA CODE OF
CIVIL PROCEDURE SECTION 1281.S(D)
III. THE COURT SHOULD STAY ALL PROCEEDINGS UNDER LEGALIST'S
1 COMPLAINT OTHER THAN LEGALIST'S ATTACHMENT APPLICATION
2 PENDING ARBITRATION
California Code of Civil Procedure section 128 l.8(b) provides:
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4 A party to an arbitration agreement may file in the court in the
county in which an arbitration proceeding is pending, or if an
5 arbitration proceeding has not commenced, in any proper court, an
application for a provisional remedy in connection with an
6 arbitrable controversy, but only upon the ground that the award to
7 which the application may be entitled may be rendered ineffectual
without provisional relief. The application shall be accompanied
8 by a complaint or by copies of the demand for arbitration and any
response thereto. If accompanied by a complaint, the application
9 shall also be accompanied by a statement stating whether the party
10 is or is not reserving the party ' s right to arbitration.
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Cal. Code Civ. Proc. § 1281 .8(b). In connection with its Attachment Application, Legalist reserves
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and does not waive its arbitration right under the LF A. Legalist' s Attachment Application
13 complies with California Code of Civil Procedure section 128 l.8(b). A party to an arbitration
14 agreement does not waive the right to arbitrate the controversy by seeking one or more provisional
15 remedies. Lambert v. Superior Court (1991) 228 Cal.App.3d 383, 387-388 .
16 California Code of Civil Procedure section 1281 .8( d) provides:
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An application for a provisional remedy under subdivision (b) shall
18 not operate to waive any right of arbitration which the applicant
may have pursuant to a written agreement to arbitrate, if, at the
19 same time as the application for a provisional remedy is presented,
the applicant also presents to the court an application that all other
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proceedings in the action be stayed pending the arbitration of any
21 issue, question, or dispute which is claimed to be arbitrable under
the agreement and which is relevant to the action pursuant to
22 which the provisional remedy is sought.
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Cal. Code Civ. Pro. § 1281.8(d). Legalist's motion for an order staying all other proceedings under
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Legalist's Complaint other than Legalist' s Attachment Application is made pursuant to and in
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accordance with California Code of Civil Procedure section 1281.8(d). A judge may grant an
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attachment even if the action has been stayed pending mandatory arbitration, since the purposes of
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an attachment is to ensure the payment of any judgment rendered in the action, and there is no
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S APPLICATION OF
PLAINTIFF LEGALIST, INC. FOR A STAY OF PROCEEDINGS PURSUANT TO CALIFORNIA CODE OF
CIVIL PROCEDURE SECTION 1281.S(D)
1 justification for denying this protection while the action is stayed. Loeb & Loeb v. Beverly Glen
2 Music, Inc. (1985) 166 Cal.App.3d 11 10, 1118.
3 IV. CONCLUSION
4 ln accordance with California Code of Civil Procedure section 128l.8(d), the Court should
5 grant Legalist's motion and issue an order staying all proceedings under Legali st's Complaint for
6 breach of a written contract against Defendants other than Legalist's Attachment Application
7 pending arbitration.
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9 Dated: February 12, 2020
DIAMO~ TIIY ~ '
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By: _ _ __ __ _ _ _ _ __
11 Christopher D. Sullivan
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Attorneys for Plaintiff LEGALIST, INC. , a
13 Delaware corporation
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S APPLICATION OF
PLAINTIFF LEGALIST, INC. FORA STAY OF PROCEEDINGS PURSUANT TO CALIFORNIA CODE OF CIVIL
PROCEDURE SECTION 1281.B(d)
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1 CHRISTOPHER D. SULLIVAN (148083) csullivan@diamondmccarthy.com 2 DIAMOND MCCARTHY LLP ELECTRONICALLY 3 150 California Street, Suite 2200 F I L E D Superior Court of California, San Francisco, California 94111 County of San Francisco 4 Telephone: (415) 692-5200 Facsimile: (415) 263-9200 02/14/2020 Clerk of the Court 5 BY: SANDRA SCHIRO Deputy Clerk Attorneys for Plaintiff, LEGALIST, INC., a 6 Delaware corporation 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 11 12 LEGALIST, INC., a Delaware corporation, Case No. CGC-20-582932 13 Plaintiff, Reservation No. 02140317-02 14 MEMORANDUM OF POINTS AND V. AUTHORITIES IN SUPPORT OF 15 APPLICATION OF PLAINTIFF RUSSEL MYRICK, an individual; RDM LEGALIST, INC. FOR A STAY OF 16 LEGAL GROUP, a California sole PROCEEDINGS PURSUANT TO proprietorship, CALIFORNIA CODE OF CIVIL 17 PROCEDURE SECTION 1281.8(d) 18 Defendants. Date: March 17, 2020 19 Time: 9:30 a.m. Dept.: 302 20 Judge: Hon. Ethan P. Schulman 21 22 I. INTRODUCTION 23 Plaintiff, LEGALIST, INC., a Delaware corporation ("Legalist") respectfully submits this 24 Memorandum of Points and Authorities in support of its motion pursuant to California Code of 25 Civil Procedure section 1281.8(d) for an order staying all proceedings under Legalist's Complaint 26 other than Legalist's concurrently filed application for a right to attach order, a temporary 27 protective order, and a writ of attachment ("Attachment Application") pending arbitration. 28 -1- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S APPLICATION OF PLAINTIFF LEGALIST, INC. FOR A STAY OF PROCEEDINGS PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 128 l .8(O) 1 II. FACTUAL BACKGROUND 2 On February 12, 2020, Legalist filed a Complaint for Breach of Contract against Defendants 3 RUSSEL MYRICK, an individual ("Myrick") and RDM LEGAL GROUP, a California sole 4 proprietorship ("RDM") (together, "Defendants"). Declaration of Curtis Smolar, ,r,r 5-6, Exhibit 1 5 (Complaint). Legalist's Complaint concerns Defendants' breach of a December 6, 2018 Litigation 6 Funding Agreement between Legalist and Defendants ("LFA"). Id., ,r 7. 7 The LF A contains a dispute resolution provision requiring that any dispute, claim, or 8 controversy arising out of or relating to the LF A or the breach, termination, enforcement, 9 interpretation, or validity of the LF A be determined by arbitration in San Francisco, California. Id. , 10 ,r 8; Exhibit 1 (Complaint), Attachment BC-1, ,r 21. Legalist's Complaint contains a cause of 11 action for breach of contract against Defendants that is within the scope of the arbitration provision 12 intheLFA. Id. ,,r 8. 13 Contemporaneously with the filing of this Motion, Legalist is filing its application for a right to attach order, a temporary protective order, and a writ of attachment against Myrick in 14 accordance with California Code of Civil Procedure section 1281.8(b) on the ground that the 15 arbitration award to which Legalist may be entitled may be rendered ineffectual without such 16 provisional relief ("Attachment Application"). Id. , ,r 9.As part of its Attachment Application, 17 18 Legalist is reserving its right to arbitration under the LF A. Id.,,r 10. In accordance with California Code of Civil Procedure section 1281.8(d), concurrent with 19 the filing of its Attachment Application Legalist is filing this motion for an order staying all other 20 proceedings in this action under Legalist's Complaint against Defendants other than Legalist's 21 Attachment Application pending arbitration. Id.,,r 11. By filing its Attachment Application and 22 this motion, Legalist is not waiving and does not waive its right to arbitration under the LF A. Id., ,r 23 12. 24 Ill 25 Ill 26 Ill 27 Ill 28 -2- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF ' S APPLICATION OF PLAINTIFF LEGALIST, INC. FOR A STAY OF PROCEEDINGS PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1281.S(D) III. THE COURT SHOULD STAY ALL PROCEEDINGS UNDER LEGALIST'S 1 COMPLAINT OTHER THAN LEGALIST'S ATTACHMENT APPLICATION 2 PENDING ARBITRATION California Code of Civil Procedure section 128 l.8(b) provides: 3 4 A party to an arbitration agreement may file in the court in the county in which an arbitration proceeding is pending, or if an 5 arbitration proceeding has not commenced, in any proper court, an application for a provisional remedy in connection with an 6 arbitrable controversy, but only upon the ground that the award to 7 which the application may be entitled may be rendered ineffectual without provisional relief. The application shall be accompanied 8 by a complaint or by copies of the demand for arbitration and any response thereto. If accompanied by a complaint, the application 9 shall also be accompanied by a statement stating whether the party 10 is or is not reserving the party ' s right to arbitration. 11 Cal. Code Civ. Proc. § 1281 .8(b). In connection with its Attachment Application, Legalist reserves 12 and does not waive its arbitration right under the LF A. Legalist' s Attachment Application 13 complies with California Code of Civil Procedure section 128 l.8(b). A party to an arbitration 14 agreement does not waive the right to arbitrate the controversy by seeking one or more provisional 15 remedies. Lambert v. Superior Court (1991) 228 Cal.App.3d 383, 387-388 . 16 California Code of Civil Procedure section 1281 .8( d) provides: 17 An application for a provisional remedy under subdivision (b) shall 18 not operate to waive any right of arbitration which the applicant may have pursuant to a written agreement to arbitrate, if, at the 19 same time as the application for a provisional remedy is presented, the applicant also presents to the court an application that all other 20 proceedings in the action be stayed pending the arbitration of any 21 issue, question, or dispute which is claimed to be arbitrable under the agreement and which is relevant to the action pursuant to 22 which the provisional remedy is sought. 23 Cal. Code Civ. Pro. § 1281.8(d). Legalist's motion for an order staying all other proceedings under 24 Legalist's Complaint other than Legalist' s Attachment Application is made pursuant to and in 25 accordance with California Code of Civil Procedure section 1281.8(d). A judge may grant an 26 attachment even if the action has been stayed pending mandatory arbitration, since the purposes of 27 an attachment is to ensure the payment of any judgment rendered in the action, and there is no 28 -3- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S APPLICATION OF PLAINTIFF LEGALIST, INC. FOR A STAY OF PROCEEDINGS PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1281.S(D) 1 justification for denying this protection while the action is stayed. Loeb & Loeb v. Beverly Glen 2 Music, Inc. (1985) 166 Cal.App.3d 11 10, 1118. 3 IV. CONCLUSION 4 ln accordance with California Code of Civil Procedure section 128l.8(d), the Court should 5 grant Legalist's motion and issue an order staying all proceedings under Legali st's Complaint for 6 breach of a written contract against Defendants other than Legalist's Attachment Application 7 pending arbitration. 8 9 Dated: February 12, 2020 DIAMO~ TIIY ~ ' 10 By: _ _ __ __ _ _ _ _ __ 11 Christopher D. Sullivan 12 Attorneys for Plaintiff LEGALIST, INC. , a 13 Delaware corporation 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S APPLICATION OF PLAINTIFF LEGALIST, INC. FORA STAY OF PROCEEDINGS PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1281.B(d)