On March 19, 2021 a
Complaint,Petition
was filed
involving a dispute between
Bimemiller, Kim,
Bimemiller, Laila,
Equity Law Group,
and
Bimemiller, Kim R.,
for Unlimited Civil Other Contract
in the District Court of San Joaquin County.
Preview
5w324eFRANK E. MAYO/State Bar #42972 Electronically Filed
4962 El Camino Real, Ste, 104 Superior Court of California
Los Altos, CA 94022 County of San J oaquin
2021-12-30 09:09:08
(650) 964-8901 Clerk: Kristy Kobus
Attorney for Defendant
Cross Complainant
Kim Bimemiller
IN THE SUPERIOR COURT OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN JOAQUIN
10
11 Case Noa.
KIM BIMEMILLER AND LAILA ) STK-CV-UOCT-2021-0002453
12
BIMEMILLER, )
) FIRST AMENDED
13 Cross Complainants, ) CROSS COMPLAINT FOR BREACH
) OF FIDUCIARY DUTY, FRAUD
14 ¥ ) INTERFERENCE WITH
PROSPECTIVE ECONOMIC
15 EQUITY LAW GROUP, S. DAVID ) ADVANTAGE AND ASSESSMENT
16 KOZICH and ROES 1-25 ) OF EXEMPLARY DAMAGES
17 Cross Defendants ) JURY TRIAL DEMANDED
)
18
19
COMES NOW Cross Complainant Kim Bimemiller and Cross Complains against Cross
20
Defendants Equity Law Group, S. David Kozich and Roes I- 25 as follows.
2.
I
22
COUNT ONE FOR BREACH OF CONTRACT
23
24 BY DEFENDANT EQUITY LAW GROUP AND
25 S. DAVID KOZICH
26 1 Cross Complainants are residents of the County of San Joaquin, State of California.
27
2. Cross Defendant Equity Law Group is a business organization of some type of firm of which
28
GROSS sCRYEARRS EQEcPREUSN REE ABUSE SUEY EBAUReSUAPRERRANGE TTA
is known to cross-complainant with its principal place of business in the City of Ontario, State of
California.
3, The True names and capacities o Cross Defendants designated herein as Roes Ithrough 25 are
umknown to Cross Complaint who therefore sues them by the fictitious names of Roes 1-25. Cross
complaint will amend this complaint to state the true names of the fictitiously named Cross-
defendants when ascertained, Cross Complainant is however informed and believes that each of said
fictitiously named Cross-Defendants is responsible in some manner for causing Cross Complainants
damages as hereinafler alleged.
10
11 4. On or about September 17, 2020, Cross Complainants were owners of record of the
12 residential real property located at72 North Alta Dena Street, Mountain House, California and were
13
in default on a promissory note secured by a deed of trust on their residential property at 72 North
14
of
Alta Dena Street, Mountain House, California, On said date a Notice of Default and Notice
15
Sale had been recorded against this property.
16
17
5. On September 29, 2020 Cross Complainant entered a contingent fee agreement with
18
Cross Defendants Equity Law Group and S. David Kozich. A true and correct copy of this
19
20 agreement is attached hereto as Exhibit A and incorporated herein by reference.
7. This contingent fee agreement specifically provides: “Client hires attorney to provide
21
legal services as follows: Attorney will prepare and issue a formal dispute of sale, if applicable
22 Attorney shall review the available protections against wrongful foreclosure under Federal and
s
State law. Attorney will analyze the Notice of Default, Notice of Trustee’s Sale and Trustee’
23
Deed for any deficiencies not in compliance with California Law and collect any personal
24 property owing to client on foreclosure. The law office shall assist in any unlawful detainer
proceedings.”
25
“The scope of service DOES NOT include any other matter not mentioned above”
26
2 “The fee to be paid to Attorney will be a percentage of the ‘net recovery’. The term
or
net recovery means the total amount of all funds received by settlement, arbitration award
28 judgment.”
CROSS EOL RNSNSABCPREDAMREa! AABCRBRESBAENe BAR Rem BREYRBARAUER “E74
8.Cross Complainantss performed each and ever term of the contingent f agreement on
their part to be performed
9. Cross Complainant’s real property at 72 Alta Dena Street, Mountain House was
foreclosed on by Non Judicial foreclosure,
10. The purchase price at the foreclosure sale was for a price in excess of all liens
secured by trust deeds, unpaid taxes, if any, and foreclosure fees.
11. These excess funds of approximately $169,948 were interpled with this
court.
10
12 Cross Complainants were entitled to receive these funds by merely submitting the
11
appropriate claim form to this court ifno other Claim was submitted by any other party.
12
13 13 Recovery of the interpled funds was not within the scope of services described in the
14 contingent fee agreement marked Exhibit A becaaause it specifically excluded these funds
15 from being subject to it.
16
14 Further recovery of the interpaled fund did not required the filing of a lawsuit,an
17
Arbitrationor or obtaining a judgment against any third party which would file a claim to the
18
funds
19
20 .15 On or about April 28,2021 Cross Defendant David Kozich and Equity Law Group
21 breached the contingent fee agreement by filing the complaint for damages in this action
22 Cross Defendants alleging entitlement to 30% ( $50,984) pursuant to
naming Cross Complains
23
the terms of the contingent fee and claimed punitive damages in the sum of $100,000,The
24
cliam made in this lawsuit suit was not authorized byu the terms of the contingent fee
25
agreement.
26
27 m
16 Asa direct and proximate result of the breach of the wriiten fee agreement as herein
28
CROSSE CPYPEAENS yBORCPRROR DRE RPARERSSESRABNY SPAGRemBURERERARNES 2H
alleged Cross Complainant have been damaged in that they have been denied access to access
and the use oft he funds to which they are entitled all to their damage in a sum within this courts
Jurisdictional limits
COUNT II
FOR DAMAGES FOR BREACH OF FIDUCIARY DUTY
By S David Kozich and Equity law Group
17. Cross Complainants incorporate herein by reference count one of this complaint as
10
though set forth in full,
11
18. In September 2020 Cross Complainant retained Cross Defendants Equity Law Group and
12
13 Davi S Kosich to Represent them.
14 19, Because of said retention of Equity Law Group and S. David Kozich as Cross
15 Complainnts’ Attorney S. David Kozich and Equity Law Group had a fiduciary duty of utmost
ig
loyalty and due care which each owed Cross Complainant.
a7
20, On or about 4/26/21 Cross Defendant Equity Law Group and S, David Kozich as counsel
18
d
breached said fiduciary duty by filing an attorney lien for services not authorized to be performe
19
20 anmd filed A lawsuit for damages against Crosss Defendants for alleged fraud while said Cross
21 Defendants were engaged in the course and soipe of representing Cross Complaintants thereby
22 taking an adverse interest to Comyplainants.
23
21 Asa direct and proximate result of said breaches of duty as herein alleged, Cross
24
Complainants’ damages include deprivation of funds to which Cross Complainants were intiitled
25
to receive all to their damage in a sum within the jurisdictional limits of this court.
26
27 COUNT Hl
28
GHOSE: COMBLARNS OW RcPRBORN REE AAUCARRES UB BRe
BEADMAP m 17H
PSRBRLES
FOR DAMAGES INTERFERENCE WITH PROSPECITVE
ECONOMIC ADVANTAGE
22. Cross Complainants incorporate herein by reference Count One and Two of this
complaint as through set forth in full.
23 On or about 4/26/21 Cross Complainants had a vested right to receive the above-described
foreclosure sales proceed, which were in excess of all liens and foreclosure sales cost free and clear
of any attorney lien for any services rendered by any attorney.
24. Cross Defendants in breach of their respective fiduciary duties to Cross Complainants
10
filed an improper lien for legal services falsely asserting with full knowledge of its invalidity in
qi
the claim that the excess fees due Cross Complainants were subject to the contingent fee
12
13 agreenment made between Cross Complainants and Cross Defendants .
14 25. Asa proximate result of said invalid lien, Cross Complainants have been deprived of a
15
prospective economic benefit all to their damage in a sum within this court’s jurisdictional limits
16
because Cross Complainant has be deprive of access to funds to which t they are entitl;ed.,
17
COUNTIV.
18
FOR A DELCLARTION FROM THIS COURT
19
20 THAT THE CONTGINGENT FEE IS PROCEDURALLY AND
21 SUBSTANTIVELY UNCONSCIONALBLE
22
25. Cross Complainants incorporates herein by reference counts one through three of this
23
Crosses Complaint as though set forth in full.
24
26. Cross Complainants dispute the validity of Cross Defendant’s lien on funds not subject
25
to any written or oral agreement made with Cross Complainants and further allege Cross
26
27 DefendDavid S$ Kosichnt are attempting to enforce a lien pursuant to an alleged contract which is
28
CROSS
Document Filed Date
December 30, 2021
Case Filing Date
March 19, 2021
Category
Unlimited Civil Other Contract
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5w324eFRANK E. MAYO/State Bar #42972 Electronically Filed 4962 El Camino Real, Ste, 104 Superior Court of California Los Altos, CA 94022 County of San J oaquin 2021-12-30 09:09:08 (650) 964-8901 Clerk: Kristy Kobus Attorney for Defendant Cross Complainant Kim Bimemiller IN THE SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF SAN JOAQUIN 10 11 Case Noa. KIM BIMEMILLER AND LAILA ) STK-CV-UOCT-2021-0002453 12 BIMEMILLER, ) ) FIRST AMENDED 13 Cross Complainants, ) CROSS COMPLAINT FOR BREACH ) OF FIDUCIARY DUTY, FRAUD 14 ¥ ) INTERFERENCE WITH PROSPECTIVE ECONOMIC 15 EQUITY LAW GROUP, S. DAVID ) ADVANTAGE AND ASSESSMENT 16 KOZICH and ROES 1-25 ) OF EXEMPLARY DAMAGES 17 Cross Defendants ) JURY TRIAL DEMANDED ) 18 19 COMES NOW Cross Complainant Kim Bimemiller and Cross Complains against Cross 20 Defendants Equity Law Group, S. David Kozich and Roes I- 25 as follows. 2. I 22 COUNT ONE FOR BREACH OF CONTRACT 23 24 BY DEFENDANT EQUITY LAW GROUP AND 25 S. DAVID KOZICH 26 1 Cross Complainants are residents of the County of San Joaquin, State of California. 27 2. Cross Defendant Equity Law Group is a business organization of some type of firm of which 28 GROSS sCRYEARRS EQEcPREUSN REE ABUSE SUEY EBAUReSUAPRERRANGE TTA is known to cross-complainant with its principal place of business in the City of Ontario, State of California. 3, The True names and capacities o Cross Defendants designated herein as Roes Ithrough 25 are umknown to Cross Complaint who therefore sues them by the fictitious names of Roes 1-25. Cross complaint will amend this complaint to state the true names of the fictitiously named Cross- defendants when ascertained, Cross Complainant is however informed and believes that each of said fictitiously named Cross-Defendants is responsible in some manner for causing Cross Complainants damages as hereinafler alleged. 10 11 4. On or about September 17, 2020, Cross Complainants were owners of record of the 12 residential real property located at72 North Alta Dena Street, Mountain House, California and were 13 in default on a promissory note secured by a deed of trust on their residential property at 72 North 14 of Alta Dena Street, Mountain House, California, On said date a Notice of Default and Notice 15 Sale had been recorded against this property. 16 17 5. On September 29, 2020 Cross Complainant entered a contingent fee agreement with 18 Cross Defendants Equity Law Group and S. David Kozich. A true and correct copy of this 19 20 agreement is attached hereto as Exhibit A and incorporated herein by reference. 7. This contingent fee agreement specifically provides: “Client hires attorney to provide 21 legal services as follows: Attorney will prepare and issue a formal dispute of sale, if applicable 22 Attorney shall review the available protections against wrongful foreclosure under Federal and s State law. Attorney will analyze the Notice of Default, Notice of Trustee’s Sale and Trustee’ 23 Deed for any deficiencies not in compliance with California Law and collect any personal 24 property owing to client on foreclosure. The law office shall assist in any unlawful detainer proceedings.” 25 “The scope of service DOES NOT include any other matter not mentioned above” 26 2 “The fee to be paid to Attorney will be a percentage of the ‘net recovery’. The term or net recovery means the total amount of all funds received by settlement, arbitration award 28 judgment.” CROSS EOL RNSNSABCPREDAMREa! AABCRBRESBAENe BAR Rem BREYRBARAUER “E74 8.Cross Complainantss performed each and ever term of the contingent f agreement on their part to be performed 9. Cross Complainant’s real property at 72 Alta Dena Street, Mountain House was foreclosed on by Non Judicial foreclosure, 10. The purchase price at the foreclosure sale was for a price in excess of all liens secured by trust deeds, unpaid taxes, if any, and foreclosure fees. 11. These excess funds of approximately $169,948 were interpled with this court. 10 12 Cross Complainants were entitled to receive these funds by merely submitting the 11 appropriate claim form to this court ifno other Claim was submitted by any other party. 12 13 13 Recovery of the interpled funds was not within the scope of services described in the 14 contingent fee agreement marked Exhibit A becaaause it specifically excluded these funds 15 from being subject to it. 16 14 Further recovery of the interpaled fund did not required the filing of a lawsuit,an 17 Arbitrationor or obtaining a judgment against any third party which would file a claim to the 18 funds 19 20 .15 On or about April 28,2021 Cross Defendant David Kozich and Equity Law Group 21 breached the contingent fee agreement by filing the complaint for damages in this action 22 Cross Defendants alleging entitlement to 30% ( $50,984) pursuant to naming Cross Complains 23 the terms of the contingent fee and claimed punitive damages in the sum of $100,000,The 24 cliam made in this lawsuit suit was not authorized byu the terms of the contingent fee 25 agreement. 26 27 m 16 Asa direct and proximate result of the breach of the wriiten fee agreement as herein 28 CROSSE CPYPEAENS yBORCPRROR DRE RPARERSSESRABNY SPAGRemBURERERARNES 2H alleged Cross Complainant have been damaged in that they have been denied access to access and the use oft he funds to which they are entitled all to their damage in a sum within this courts Jurisdictional limits COUNT II FOR DAMAGES FOR BREACH OF FIDUCIARY DUTY By S David Kozich and Equity law Group 17. Cross Complainants incorporate herein by reference count one of this complaint as 10 though set forth in full, 11 18. In September 2020 Cross Complainant retained Cross Defendants Equity Law Group and 12 13 Davi S Kosich to Represent them. 14 19, Because of said retention of Equity Law Group and S. David Kozich as Cross 15 Complainnts’ Attorney S. David Kozich and Equity Law Group had a fiduciary duty of utmost ig loyalty and due care which each owed Cross Complainant. a7 20, On or about 4/26/21 Cross Defendant Equity Law Group and S, David Kozich as counsel 18 d breached said fiduciary duty by filing an attorney lien for services not authorized to be performe 19 20 anmd filed A lawsuit for damages against Crosss Defendants for alleged fraud while said Cross 21 Defendants were engaged in the course and soipe of representing Cross Complaintants thereby 22 taking an adverse interest to Comyplainants. 23 21 Asa direct and proximate result of said breaches of duty as herein alleged, Cross 24 Complainants’ damages include deprivation of funds to which Cross Complainants were intiitled 25 to receive all to their damage in a sum within the jurisdictional limits of this court. 26 27 COUNT Hl 28 GHOSE: COMBLARNS OW RcPRBORN REE AAUCARRES UB BRe BEADMAP m 17H PSRBRLES FOR DAMAGES INTERFERENCE WITH PROSPECITVE ECONOMIC ADVANTAGE 22. Cross Complainants incorporate herein by reference Count One and Two of this complaint as through set forth in full. 23 On or about 4/26/21 Cross Complainants had a vested right to receive the above-described foreclosure sales proceed, which were in excess of all liens and foreclosure sales cost free and clear of any attorney lien for any services rendered by any attorney. 24. Cross Defendants in breach of their respective fiduciary duties to Cross Complainants 10 filed an improper lien for legal services falsely asserting with full knowledge of its invalidity in qi the claim that the excess fees due Cross Complainants were subject to the contingent fee 12 13 agreenment made between Cross Complainants and Cross Defendants . 14 25. Asa proximate result of said invalid lien, Cross Complainants have been deprived of a 15 prospective economic benefit all to their damage in a sum within this court’s jurisdictional limits 16 because Cross Complainant has be deprive of access to funds to which t they are entitl;ed., 17 COUNTIV. 18 FOR A DELCLARTION FROM THIS COURT 19 20 THAT THE CONTGINGENT FEE IS PROCEDURALLY AND 21 SUBSTANTIVELY UNCONSCIONALBLE 22 25. Cross Complainants incorporates herein by reference counts one through three of this 23 Crosses Complaint as though set forth in full. 24 26. Cross Complainants dispute the validity of Cross Defendant’s lien on funds not subject 25 to any written or oral agreement made with Cross Complainants and further allege Cross 26 27 DefendDavid S$ Kosichnt are attempting to enforce a lien pursuant to an alleged contract which is 28 CROSS