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Complaint

Make Sure Your Constructive Fraud Complaint is Demurrer Proof

October 18, 2012 by  · 1 Comment (Edit)

Here is a recent sample complaint I drafted for a pro per litigant with a fairly decent claim. It is a very technical series of causes of action presented and therefore I am posting it here as a legal writing sample to showcase my talents working with the pro per litigants out there. This client originally wanted a complaint for legal malpractice. Everybody has a complaint for legal malpractice . . . . . in their minds!  Before you think about filing that complaint, read it like you were an insurance adjuster, judge, lawyer, or even the actual person you are suing. Would you give money to someone with your complaint? Think before you sue, a lawsuit is a business investment. If you don’t invest in a good complaint you are not going to get a good return on your investment.

This client paid fair money for my time, was intelligent enough to listen to me, and so I was able to steer him into a more manageable direction, away from legal malpractice. In a legal malpractice lawsuit, you have to prove that you would have won the underlying lawsuit, you are trying a case within a case and it is very difficult to prevail in an attorney malpractice lawsuit.   The point I hope to make here is how critical it is to draft a demurrer proof complaint in the beginning to avoid playing catch up with oppositions to demurrers and fifth amended complaints. Draft a clear and linear financial legal argument like I have below. Once your case gets moving you have to prove damages quickly so just take the time before hand to lay out your numbers, facts, exhibits and law in a clear and compelling narrative called your complaint for damages. Make me weep. Show me the money. If you really want to convince me, bring on the expert witnesses.

“Tell it to me like I am a five year old lemonade stand owner/operator”   -Dean McAdams

This form example complaint is for (1) Constructive Fraud on Misrepresenting Recoverability of Attorney’s Fees; (2) Constructive Fraud on Misrepresenting Merits of Case; and (3) Constructive Fraud on Asserting False Charging Lien.

———————————————

Arthur E. Melchino, Self-Represented

999 Wilshire Blvd.

Los Angeles, CA 90012

            (310) 944-2055      

http://www.ParalegalLosAngeles.Com 

Dean@LegalNoodle.Com

Plaintiff in Propria Persona

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

ARTHUR E. MELCHINO

Plaintiff

v.

 

BURGERMAN LAW, LLP,

HIGHTOWER REICH, LLP,

MARVIN L. LEVINE

JOHN SMITH JR.

Defendants

(MODEL) COMPLAINT FOR

  1. Constructive Fraud on Misrepresenting Recoverability of Attorney’s Fees;
  2. (2) Constructive Fraud on Misrepresenting Merits of Case; and
  3. (3) Constructive Fraud on Asserting False Charging Lien.

REQUEST FOR JURY TRIAL

Plaintiff Arthur E. Melchino alleges the following upon information and belief:

INTRODUCTION

1. This is an action for constructive fraud involving breaches of fiduciary duties.

PARTIES

1. Plaintiff is and was at all times relevant herein a resident of California.

2. Plaintiff is informed and believes and based thereon alleges that, at all relevant

times, Defendant MARVIN L. LEVINE (“LEVINE”) was residing and/or doing business in

Los Angeles County.

1. Plaintiff is informed and believes and based thereon alleges that, at all relevant times, Defendant JOHN SMITH, JR. (“SMITH”) was residing and/or doing business in Los Angeles County.

2. Plaintiff is informed and believes and based thereon alleges that, at all relevant times, Defendant BURGERMAN LAW, LLP (“BURGERMAN”) was a limited liability partnership doing business in Los Angeles County.

3. Plaintiff is informed and believes and based thereon alleges that, at all relevant times, Defendant HIGHTOWER REICH, LLP (“HIGHTOWER”) was a limited liability partnership doing business in Los Angeles County.

4. The true names and capacities, whether individual, corporate, associate, or otherwise of Defendants DOES 1 through 20, inclusive, (“Defendants”) are unknown to Plaintiff, and therefore Plaintiff sues these Defendants by such fictitious names. Plaintiff is informed and believes and thereon alleges that each of said fictitiously named Defendants is in some manner responsible for the events and occurrences herein, and was an actual, proximate, and substantial cause of the injuries to Plaintiff, as herein alleged. Plaintiff will seek leave to amend this complaint to allege their true names and capacities when they have been ascertained.

5. At all times herein mentioned, the Defendants, and each of them, were and are the agents, servants, employees, principals, officers, directors, partners, representatives, parents, subsidiaries, successor-in-interests, or co-conspirators of each of the remaining Defendants, and in such capacity participated in the acts or conduct alleged herein.

JURISDICTION AND VENUE

1. This Court has jurisdiction over this action pursuant to California Code of Civil Procedure section 410.10. Defendants reside and/or do business in the State of California. Plaintiff contracted Defendants for legal services in the State of California and Defendants’ wrongful acts occurred in and emanated from here.

2. Venue is proper in the County of Los Angeles under California Code of Civil Procedure Section 395. Defendants reside and/or do business in Los Angeles County.

FACTS

11. Plaintiff has incurred attorney’s fees and costs of at least $254,072 related to a protracted litigation in the Superior Court of California County of Los Angeles (Case No. YD 999 111.) Said $254,072 includes:

a. payments totaling at least $101,737 to Defendant BURGERMAN for fees and costs;

b. alleged accrued liabilities totaling at least $99,712 to Defendant BURGERMAN for unpaid fees and costs;

costs paid to Defendants, for things such as deposition costs, witness fees, exhibits, collections and others expenses related to and/or arising from said litigation.

1. On or about February 21, 2008, Plaintiff retained Defendant HIGHTOWER by signing a fee agreement for legal services (“AGREEMENT”) for the purpose of collecting about $112,000 owed to Plaintiff by JOHN ADAMS et al. (“ADAMS”) for the breach of a written consulting contract (“BREACH OF CONTRACT.”) On or about November 26, 2008, the AGREEMENT was transferred to Defendant BURGERMAN on the same terms as in the AGREEMENT. A copy of the AGREEMENT is attached hereto as EXHIBIT “A.” A copy of the letter from BURGERMAN regarding transfer of the AGREEMENT to BURGERMAN is attached hereto as EXHIBIT “B.”

2. At all times relevant, Plaintiff communicated to Defendants that Plaintiff’s goals in litigation included recovery of all or substantial part of his legal costs including attorney’s fees. On or about February 19, 2008 Plaintiff sent an email to Defendant LEVINE regarding his frustrations with ADAMS, stating “The least which will be fair now is to estimate the hours that I have spent for him, and figure the total out at a market rate, plus legal costs. I’ll leave the strategy to you. I trust your abilities and judgment.” A copy of Plaintiff’s email to Defendant LEVINE on February 19, 2008 is attached hereto as EXHIBIT “C.” On March 17, 2008 Plaintiff sent an email to Defendant LEVINE listing what he wanted to sue ADAMS for, which list included “Attorney fees and other collection expenses on top of these.” A copy of the email Plaintiff sent to Defendant LEVINE on March 17, 2008 is attached hereto as EXHIBIT “D” p. 2. On March 28, 2008 Plaintiff sent an email to ADAMS, copying Defendants LEVINE and SMITH, regarding collecting from ADAMS, stating “I am also incurring attorney fees and other costs in trying to collect from you. I will hold you responsible for these costs.” Plaintiff asked Defendant LEVINE for advice on the aforementioned email to ADAMS. Defendant LEVINE advised Plaintiff “It was sharp but appropriate.” and “.. there does not appear to be nuances here that reuire [sic] the Maestro’s touch. ” Plaintiff received a bill form HIGHTOWER regarding said advice. A copy of Plaintiff’s email to ADAMS is attached hereto as EXHIBIT “E” p. 1. A copy of emails between Plaintiff and Defendant LEVINE regarding review of the email to ADAMS is attached hereto as EXHIBIT “E” pp. 2 and 3. A copy of the bill from Defendant HIGHTOWERMA is attached hereto as EXHIBIT “E” p. 4. On April 11, 2008, Plaintiff sent an email to Defendants LEVINE and SMITH stating his legal costs and other costs should be included in the lawsuit against ADAMS. A copy of Plaintiff’s email dated April 11, 2008 to Defendants LEVINE and SMITH is attached hereto as EXHIBIT “F.” As a proximate result of Defendants’ conduct, Plaintiff continued to incur attorney’s fees and pursued litigation on the course advised by Defendants with the understanding the all attorney’s fees he was incurring was recoverable by law. Said understanding continued until April, 2009.

14. On or about April 16, 2009, ADAMS made an offer to Plaintiff under Code of Civil Procedure Section 998. Said offer included language stating “each party to bear his her or its own costs and attorney’s fees.” Plaintiff asked Defendants LEVINE and SMITH for advice regarding said offer. On or about April 23, 2009 Defendant LEVINE informed Plaintiff that Plaintiff had had the wrong understanding regarding recoverability of attorney’s fees. However, Defendant LEVINE advised Plaintiff that Defendant LEVINE had the necessary expertise in the area of Section 998 Code to devise and craft a “counter offer” to ADAMS under said code (“CCP 998 Offer”) — specifically for the purpose of providing legal “trigger” mechanisms to entitle Plaintiff to recover all or a substantial part of his attorney’s fees. On or about June 17, 2009, Defendant LEVINE sent an email to Plaintiff (copying Defendant SMITH) regarding this CCP 998 Offer, in which he stated “This 998 WILL send ADAMS a message! . . . BUT DO keep in mind you need to get a judgment in excess of the 998 to make it do what you want to do …. trigger the fees …” Later that day Defendant SMITH also sent emails to Plaintiff (copying Defendant LEVINE) discussing said CCP 998 Offer, in which he stated “we were thinking of something in the neighborhood of $130-150K . . . the higher the demand, the less the probability to recover attorney’s fees. However if we give them a demand that they really think there’s a good chance we’ll get, then they’ll evaluate risk as including the amount of our demand plus attorney’s fees.” Defendants LEVINE and SMITH proceeded to craft and submit said CCP 998 Offer, which stated “Should this offer be rejected, the prevailing party (or parties) is to recover actual attorneys fees and costs, including appellate fees, incurred from the date of this offer.” A copy of emails from Defendants LEVINE and SMITH to Plaintiff regarding said CCP 998 Offer is attached hereto as EXHIBIT “G.” A copy of said CCP 998 Offer signed by Defendant LEVINE is attached hereto as EXHIBIT “H.” Relying on Defendants’ wrongful advice, Plaintiff pursued litigation on the course advised by Defendants.

15. On or about April 12, 2008, Defendants LEVINE and SMITH advised Plaintiff that, in addition to the BREACH OF CONTRACT cause of action, a “quantum meruit” cause of action (“QUANTUM MERUIT” ) in the amount of $202,000 would be added to a complaint against ADAMS. At all times relevant, Defendants misled Plaintiff to conclude that the QUANTUM MERUIT cause of action was an extremely strong case supported by documentation and therefore merited litigation. On or about January 7, 2009 (almost 16 months before trial), Defendant LEVINE advised Plaintiff “we have all your documents to support a quantum meruit claim.” A copy of Defendant LEVINE’s email to Plaintiff dated January 7, 2009, is attached hereto as EXHIBIT “I.” On or about March 3, 2010, just two months before trial, Defendant LEVINE emailed Plaintiff stating “And yes I share your views on the case……………..they will have a run for their money!!!!” A copy of Defendant LEVINE’s email to Plaintiff dated March 3, 2010, is attached hereto as EXHIBIT “J.”

1. The case went to trial in the Superior Court of California County of Los Angeles (“Court”) in May, 2010 (Case No. BC 999 111.) On May 28, 2010, the Court awarded Plaintiff $112,000 Judgment against ADAMS on the BREACH OF CONTRACT. The Court also awarded Plaintiff interest in the amount of $36,350.58. The Court awarded nothing on QUANTUM MERUIT, and nothing on attorney’s fees.

2. After trial, Defendant LEVINE reversed various previous false representations made to Plaintiff by Defendants regarding recoverability of attorney’s fees, informing Plaintiff that, regardless of their past advice, Plaintiff was never entitled to recover his attorney’s fees as a matter of law, despite of Defendants’ previous representations to the contrary, and despite the fact that about one year before trial Defendants BAUTSITA and LEVINE had crafted the CCP 998 Offer themselves, which Defendant LEVINE had signed, allegedly for the specific purpose of making attorney’s fees recoverable. On June 22, 2010, Defendant LEVINE wrote to Plaintiff “The issue of attorneys fees only arose in the context of the § 998′s and whether or not they would trigger attorneys fees. Obviously, this was late in the game and had nothing to do with the earlier discussions.” A copy of Defendant LEVINE’s letter to Plaintiff dated June 22, 2010 as attached hereto as EXHIBIT “K.” In the same letter, Defendant LEVINE, attempting to justify the total the loss on QUANTUM MERUIT, stated “The bad news in all of this is that the “loosey goosey” nature of the relationship and lack of adequate documentations affording the “additional services” made it a challenge presenting the quantum meruit claims,” despite the fact the Defendants, including Defendant LEVINE, wrongfully led Plaintiff to conclude that the QUANTUM MERUIT cause of action was an extremely strong case supported by documentation and therefore merited litigation. In the same letter, Defendant LEVINE, with callous disregard to his fiduciary duties to Plaintiff, characterized the genesis of the litigation as Plaintiff’s need to get “closure” and the goal in litigation as getting vindication.

3. On or about June 29, 2010, Defendant LEVINE informed Plaintiff that Defendant LEVINE could have litigated the BREACH OF CONTRACT cause of action for a mere $30,000 to $50,000 in attorney’s fees and costs (as opposed to about $250,000 actually incurred by Plaintiff,) also stating “I respectfully disagree that the goal was always about getting “money results.”" A copy of Defendant LEVINE’s letter to Plaintiff dated June 29, 2010 is attached hereto as EXHIBIT “L.”

1. Had Plaintiff been advised properly by Defendants that it would cost between $30,000 to $50,000 to litigate the BREACH OF CONTRACT cause of action and/or had Plaintiff not been misled by Defendants that Plaintiff was entitled to recover his attorney’s fees, it would have materially affected his decisions on the course to pursue this claim.

2. Had Plaintiff not been misled by Defendants to conclude that QUANTUM MERUIT cause of action was an extremely strong case supported by documentation and therefore merited litigation, it would have materially affected his decisions on the course to pursue this claim. No reasonable person, including Plaintiff, would have gambled to incur attorney’s fees and costs ranging between $200,000 and $220,000 or more to potentially recover $202,000 at best. Plaintiff would certainly not have done so had Plaintiff not been misled by Defendants that Plaintiff was entitled to recover his attorney’s fees.

3. On or about July 27, 2010, Defendant LEVINE, without any prior notice whatsoever, sent an email to Plaintiff (copying Mr. Johnson, ADAMS’s attorney, Defendant SMITH and Mr. David Kramer of BURGERMAN) in which he asserted a charging lien on satisfaction of judgment monies for unpaid attorney’s fees, instructing Mr. Johnson, ADAMS’s attorney, to “protect our fees noting our lien.” A copy of Defendant LEVINE’s email asserting alleged charging lien (“FALSE LIEN”) is attached hereto as EXHIBIT “M.” The AGREEMENT between Plaintiff and Defendants was for hourly services without a lien clause. Additionally, Defendants never bothered to obtain Plaintiff’s informed consent regarding the FALSE LIEN.

4. On or about July 29, 2010, Mr. Johnson, ADAMS’s attorney, in accordance with Defendant LEVINE’s instructions regarding the FALSE LIEN, gave BURGERMAN a check for satisfaction of judgment in the amount of $163,500 made out jointly to BURGERMAN and Plaintiff. The only results Plaintiff has ever received from litigation is a $65,500 portion of said $163,500 check. Defendant BURGERMAN continues to wrongfully hold the $98,000 balance of satisfaction of judgment monies rightfully belonging to Plaintiff, despite Plaintiff’s numerous protestations, exercising in effect a baseless lien.

1. Plaintiff did reasonably rely on Defendants LEVINE, SMITH and BURGERMAN misleading representations regarding their right to assert the FALSE LIEN. Defendants LEVINE and BURGERMAN used said misleading representations to unconscionably induce Plaintiff to agree that Defendant BURGERMAN was entitled to keep $98,000 of satisfaction of judgment monies rightfully belonging to Plaintiff while negotiating their alleged fees with Plaintiff. Defendant BURGERMAN wrongfully continue to hold this $98,000 to this day.

2. Had Plaintiff been not been misled by Defendants on Plaintiff’s rights and obligations regarding Defendants’ right to assert the FALSE LIEN and/or to conclude that Defendants had the right under law to assert the FALSE LIEN in the manner they did, it would have materially affected his decision on the proper course to address the FALSE LIEN.

FIRST CAUSE OF ACTION

Against all Defendants for Constructive Fraud on Misrepresenting Recoverability of Attorney’s Fees

1. Plaintiff realleges and incorporates by reference the allegations in all paragraphs above as though fully set forth at this place.

2. Defendants represented themselves to Plaintiff as qualified experts on matters of, inter alia, law, legal risk management, litigation, recovery of attorney’s fees and costs and post judgment recovery of awards. At all times relevant to this action, by virtue of the relationship between Plaintiff and Defendants, a fiduciary duty existed between Defendants and Plaintiff. Pursuant to said duty, Defendants owed Plaintiff the utmost professionalism, good faith and fairness in all matters pertaining to Defendants’ conduct with Plaintiff.

3. Defendants made to Plaintiff one or more misleading representations and/or omitted making reasonably accurate representations and/or concealed material information regarding the recoverability of attorney’s fees on the BREACH OF CONTRACT cause of action.

28. Defendants breached their aforementioned fiduciary duties to gain unfair advantage

over Plaintiff by misleading Plaintiff into concluding that all or substantial part of hundreds of dollars per hour in attorney’s fees they were charging Plaintiff was recoverable by law.

29. Plaintiff, at all times relevant, was ignorant of Defendants’ fraudulent conduct as herein alleged. In reasonable reliance on said conduct, Plaintiff contracted with Defendants for legal services and

a. has paid for at least $154,360 in attorney’s fees and costs;

b. has incurred alleged accrued liabilities of at least $99,712; and

c. has been unjustly denied access to $98,000 of satisfaction of judgment monies rightfully belonging to Plaintiff.

1. As a proximate result of Defendants’ conduct as set forth above, Plaintiff was damaged in an amount to be proven at trial.

2. The aforementioned conduct of Defendants was materially misleading representation and/or omission and/or concealment of material facts known to Defendants, made with such callous disregard of their fiduciary duties, so as to justify an award of punitive damages.

SECOND CAUSE OF ACTION

Against all Defendants Constructive Fraud on Misrepresenting Merits of Case in Litigation

1. Plaintiff realleges and incorporates by reference the allegations in all paragraphs above as though fully set forth at this place.

2. Defendants represented themselves to Plaintiff as qualified experts on matters of, inter alia, law, legal risk management, litigation, recovery of attorney’s fees and costs and post judgment recovery of awards. At all times relevant to this action, by virtue of the relationship between Plaintiff and Defendants, a fiduciary duty existed between Defendants and Plaintiff. Pursuant to said duty, Defendants owed Plaintiff the utmost professionalism, good faith and fairness in all matters pertaining to Defendants’ conduct with Plaintiff.

3. Defendants made to Plaintiff one or more misleading representations and/or omitted making reasonably accurate representations and/or concealed material information regarding the recoverability of attorney’s fees on the QUANTUM MERUIT cause of action.

35. Additionally, Defendants made to Plaintiff one or more misleading representations and/or omitted making reasonably accurate representations and/or concealed material information regarding the QUANTUM MERUIT cause of being an extremely strong case supported by documentation and therefore meriting litigation.

36. Defendants breached their aforementioned fiduciary duties to gain unfair advantage over Plaintiff by misleading Plaintiff to conclude that all or substantial part of hundreds of dollars per hour in attorney’s fees they were charging Plaintiff was recoverable by law, and to conclude that the QUANTUM MERUIT cause of action was an extremely strong case supported by documentation and therefore merited litigation.

37. Plaintiff, at all times relevant, was ignorant of Defendants’ fraudulent conduct as herein alleged. In reasonable reliance on said conduct, Plaintiff contracted with Defendants for legal services and

a. has paid for at least $154,360 in attorney’s fees and costs;

b. has incurred alleged accrued liabilities of at least $99,712; and

c. has been unjustly denied access to $98,000 of satisfaction of judgment monies rightfully belonging to Plaintiff.

38. As a proximate result of Defendants’ conduct as set forth above, Plaintiff was damaged in an amount to be proven at trial.

39. The aforementioned conduct of Defendants was materially misleading representation and/or omission and/or concealment of material facts known to Defendants, made with such callous disregard of their fiduciary duties to Plaintiff, so as to justify an award of punitive damages.

THIRD CAUSE OF ACTION

Against Defendants BURGERMAN, LEVINE and SMITH for Constructive Fraud on Asserting False Charging Lien

40. Plaintiff realleges and incorporates by reference the allegations in all paragraphs

above as though fully set forth at this place.

1. Defendants represented themselves to Plaintiff as qualified experts on matters of, inter alia, law, legal risk management, litigation, recovery of attorney’s fees and costs and post judgment recovery of awards. At all times relevant to this action, by virtue of the relationship between Plaintiff and Defendants, a fiduciary duty existed between Defendants and Plaintiff. Pursuant to said duty, Defendants owed Plaintiff the utmost professionalism, good faith and fairness in all matters pertaining to Defendants’ conduct with Plaintiff.

2. Defendants made to Plaintiff one or more misleading representations and/or omitted making reasonably accurate representations and/or concealed material information regarding assertion of the FALSE LIEN by Defendants on $98,000 of satisfaction of judgment monies rightfully belonging to Plaintiff. Additionally, Defendants never bothered to obtain Plaintiff’s informed consent regarding the FALSE LIEN.

3. Defendants breached their aforementioned fiduciary duties to gain unfair advantage over Plaintiff in negotiation on payments for their alleged outstanding fees, by misleading Plaintiff into concluding that Defendants had a legal right to assert the FALSE LIEN.

4. Plaintiff, at all times relevant, was ignorant of Defendants’ fraudulent conduct as herein alleged. In reasonable reliance on said conduct, Plaintiff was induced to agree with Defendants BURGERMAN and LEVINE’s that they were entitled to keep said $98,000 of satisfaction of judgment monies rightfully belonging to Plaintiff while negotiating their alleged fees and has been unjustly denied access to said $98,000.

5. As a proximate result of Defendants’ conduct as set forth above, Plaintiff was damaged in an amount to be proven at trial.

6. The aforementioned conduct of Defendants was materially misleading representation and/or omission and/or concealment of material facts known to Defendants, made with such callous disregard of their fiduciary duties, so as to justify an award of punitive damages.

WHEREFORE, Plaintiff prays for judgment against Defendants as follows: ON THE FIRST CAUSE OF ACTION (Against All Defendants)

1. For damages in an amount to be proved at trial; and

2. For punitive damages in an amount appropriate to punish Defendants and deter others from engaging in similar conduct.

ON THE SECOND CAUSE OF ACTION (Against All Defendants)

1. For damages in an amount to be proved at trial; and

2. For punitive damages in an amount appropriate to punish Defendants and deter others from engaging in similar conduct.

ON THE THIRD CAUSE OF ACTION (Against Defendants BURGERMAN, LEVINE and SMITH)

1. For damages in an amount to be proved at trial; and

2. For punitive damages in an amount appropriate to punish Defendants and deter others from engaging in similar conduct.

ON ALL CAUSES OF ACTION (Against All Defendants)

1 For costs of suit incurred herein; and

2 For interest at the legal rate according to proof;

3 For such other and further relief as the Court deems just and proper.

Respectfully submitted,

Dated: December 21, 2012

Signed: /s/ Arthur E. Melchino

Plaintiff in Pro Per

About Dean McAdams
Dean McAdams is not an attorney and only works for licensed attorneys. Dean McAdams no longer contracts direct with the consumer or self-represented litigant. This web site is intended for use by lawyers, attorneys, law firm support staff and paralegals only.

Comments

One Response to “Make Sure Your Constructive Fraud Complaint is Demurrer Proof”
  1. Auto Finance  says:

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