Superior Court of California County of Orange Case Number : 30-2017-00910098-CU-BC-CJC Copy Request: 3073376 Request Type: Case Documents Prepared for: cns Number of documents: 1 Number of pages: 7
1 Lawrence S. Eisenberg Esq. SBN 114120 EISENBERG & ASSOCIATES, APC 2 9210 Irvine Center Drive Irvine, California 92618 3 Telephone:(949 753-1500 Facsimile:(949 753-1516 4 5 Attorneys for Plaintiff, EISENBERG & ASSOCIATES, A Professional Corporation 6 7 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER 10 EISENBERG & ASSOCIATES, 11 A Professional Corporation, 12 Plaintiff, 13 vs. 14 DUANE "DOG" CHAPMAN, ALICE ELIZABETH CHAPMAN, LELAND 15 CHAPMAN, DOG TBH CORPORATION and DOES 1 through 50, Inclusive, 16 Defendant. 17 CASE NO.: : 1. BREACH OF CONTRACT 2. COMMON COUNTS; AND 3. DECLARATORY RELIEF. 18 COMES NOW, Plaintiff EISENBERG & ASSOCIATES, A Professional Corporation, and 19 for causes of action against Defendants, and each of them, hereby alleges as follows: 20 21 1. GENERAL ALLEGATIONS At all times herein mentioned, Plaintiff EISENBERG & ASSOCIATES, A 22 Professional Corporation ("Plaintiff', was duly organized under the laws of the State of California 23 with a principal place of business in the City of Irvine, County of Orange, State of California. 24 2. At all times herein mentioned, Plaintiff s principal, Lawrence S. Eisenberg, was duly 25 authorized to practice law in the State of California. 26 3. At all times herein mentioned, Defendants DUANE "DOG" CHAPMAN, ALICE 27 ELIZABETH CHAPMAN and LELAND CHAPMAN, were and are individuals and residents of the 28 State of Hawaii, who were doing business in California. At all times herein mentioned, Defendant -1-
1 DOG CORPORATION, was a corporation incorporated and doing business State 2 California. 3 4. The true names and/or capacities, whether individual, corporate, associate, or 4 otherwise of Defendants DOES 1 through 50, inclusive, and each ofthem, are unknown to Plaintiff, 5 who therefore sues said Defendants by such fictitious names. When the true names and or capacities 6 of said Defendants are ascertained, Plaintiff will seek leave of this Court to amend this Complaint 7 accordingly. 8 5. Plaintiff is informed and believes, and based thereupon alleges, that each Defendant 9 designated herein as a DOE was responsible, negligently or for breach of contract or in some other 10 actionable manner, for the events and happenings herein referred to which proximately caused the 11 damages to the Plaintiff as hereinafter alleged, either through said Defendant's own misconduct, or 12 through the conduct of its agents, servants, employees or representatives in some other manner. 13 6. Plaintiff is further informed and believes, and based thereupon alleges, that at all 14 times mentioned herein each ofthe Defendants, including Defendant DOES 1 through 50, inclusive, 15 and each of them, were the agents, servants, employees, representatives of each of the remaining 16 Defendants and were at all times material hereto acting within the authorized course and scope of 17 said agency, service, employment and/or representation, and/or that all of said acts, conduct and 18 omissions were subsequently ratified by their respective principals and the benefits thereof accepted 19 by such principals. 20 FIRST CAUSE OF ACTION 21 (Breach of Contract - Against All Defendants 22 7. Plaintiff realleges and incorporates by reference each of the allegations of paragraphs 23 1 through 6, above, as though fully set forth herein. 24 8. On or about April 25, 2008, Plaintiff EISENBERG & ASSOCIATES, APC and 25 Defendants entered into a wtitten Attorney- Client Retainer Agreement ("Agreement" fully executed 26 by Defendants, whereby Plaintiff and Defendants agreed, inter alia, that Plaintiff EISENBERG & 27 ASSOCIATES, APC would be retained to represent Defendants in connection with prosecuting a 28 civil legal malpractice claim in Orange County, California against William Bollard, Esq. and -2-
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Julander, Brown & Bollard ("JBB", related to legal services previously performed by the latter attorneys (JBB for the Defendants in connection with a criminal action initiated against the Defendants on or about June 20, 2003, in Puerto Vallarta, Jalisco, Mexico. ("Mexican Criminal Action." 9. Pursuant to the terms of the Agreement, Plaintiff EISENBERG & ASSOCIATES, APC and Defendants agreed that Plaintiff would initiate a civil legal malpractice lawsuit against Defendants William Bollard, Esq. and Julander, Brown & Bollard ("Bollard Legal Malpractice Claim" in Orange County, California, in consideration for payment by Defendants of a contingency fee calculated based upon the gross recovery realized from the Bollard Legal Malpractice Claim, as well as pay the costs and expenses incurred in prosecuting the Bollard Legal Malpractice Claim. 10. Pursuant to the terms of the Agreement, Plaintiffs and Defendants further agreed that "Any other matters handled by Attorneys [Plaintiff EISENBERG & ASSOCIATES, APC] for Client [Defendants] are not included in the above fee and Client shall pay Attorneys additional compensation for any such matters at Attorneys prevailing hourly rate." 11. On or about June 6, 2008, and pursuant to the terms of the Agreement, Plaintiff filed and subsequently served the Bollard Legal Malpractice Claim against Defendants William Bollard, Esq. and Julander, Brown & Bollard. The Bollard Legal Malpractice Claim was subsequently referred to contractual Arbitration. 12. On or about April 8, 2009, Defendants were served with a Cross-Complaint/Cross- Claim in the Bollard Legal Malpractice Claim, by and through which William Bollard, Esq. and Julander, Brown & Bollard sought to collect unpaid legal fees that Defendants owed to William Bollard, Esq. and Julander, Brown & Bollard, based on their prior representation of Defendants in the Mexican Criminal Action ("Bollard Collection Action". At the time that Defendants signed the Attorney-Client Retainer Agreement with Plaintiff EISENBERG & ASSOCIATES, APC on or about April 25, 2008, Defendants failed to advise Plaintiff that unpaid attorney's fee were owed to William Bollard, Esq. and Julander, Brown & Bollard in the sum of $97,627.54. 13. After service of the Bollard Collection Action on Defendants, Defendants requested that Plaintiff EISENBERG & ASSOCIATES, APe represent them in defending the Bollard -3-
1 Collection Action, which was outside the scope of the Bollard Legal Malpractice Claim and 2 constituted "other under the terms of the Agreement. 3 4 5 6 14. On or about May 7, 2009, and pursuant to the terms ofthe Agreement governing and pertaining to "other matters" Plaintiff EISENBERG & ASSOCIATES, APC undertook to furnish a defense to Defendants in the Bollard Collection Action by filing and serving an Answer to the Cross-Complaint/Cross-Claim in the Bollard Collection Action, on an hourly fee basis at Plaintiff s 7 prevailing hourly rate. 8 15. Plaintiff EISENBERG & ASSOCIATES, APC performed all of the terms, 9 conditions, and covenants required on its part to be performed under the Agreement with respect to 10 furnishing a defense to the Defendants regarding the Bollard Collection Action, which included 11 litigating the case which proceeded to Arbitration, except for those terms, conditions, and covenants 12 which were waived, excused andlor discharged. 13 16. On or about September 15,2014, Plaintiff EISENBERG & ASSOCIATES, APC sent 14 billing for professional services rendered in the sum of$46,365.00. On or about October 15,2014, 15 Defendants materially breached the Agreement by failing and refusing to pay the prevailing hourly 16 fees owed to Plaintiff for professional services rendered by Plaintiff in representing the Defendants 17 in the Bollard Collection Action. 18 17. As a direct result of the aforementioned material breach of the Agreement by the 19 Defendants, and each of them, Plaintiff EISENBERG & ASSOCIATES, APC has suffered special 20 and general damages in the sum of $46,365.00, plus interest thereon at the legal rate. 21 18. The Agreement also provided that "[ s ]hould it be necessary to institute legal 22 proceedings against Clients for the collection or all or any part of said fees, costs or advances, 23 Clients agree to pay costs of collection and suit, and reasonable Attorney's fees, if Attorneys prevail 24 in said collection proceedings." Accordingly, Plaintiff EISENBERG & ASSOCIATES, APC is 25 entitled to recover its costs and reasonable attorney's fees incuned in bringing this action, pursuant 26 to Civ.C. 1717. 27 III 28 III -4-
1 2 (Common Counts - Against All Defendants 3 19. Plaintiff realleges and incorporates by reference each of the allegations of paragraphs 4 1 through 18 of the First Cause of Action, above, as though fully set f01ih herein. 5 20. Within four years prior to the date of filing of this action, Defendants, and each of 6 them, became indebted to Plaintiff on an open book account for money due, because an account was 7 stated in writing as between Plaintiffs and Defendant in which it was agreed that Defendants were 8 indebted to Plaintiff, for money lent by Plaintiff to Defendants at their request, for money paid, laid 9 out, and expended for Defendants at their special insistence and request, and for work, labor, services 10 rendered in the Bollard Collection action on behalf of Defendants and at the special insistence and 11 request of Defendants, and for which Defendants, and each of them, promised to pay Plaintiff. 12 21. Despite demand therefor, the sum of$46,365.00 remains unpaid and due plus interest 13 thereon at the legal rate. 14 22. The Agreement also provided that "[s]hould it be necessary to institute legal 15 proceedings against Clients for the collection of all or any part of said fees, costs or advances, Client 16 agrees to pay costs of collection and suit, and reasonable Attorney's fees, if Attorneys prevail in said 17 collection proceedings." Accordingly, Plaintiff EISENBERG & ASSCOCIATES, APC is entitled 18 to recover its costs and reasonable attorney's fees incurred in bringing this action, pursuant to Civ. C. 19 1717. 20 THIRD CAUSE OF ACTION 21 (Declaratory Relief - Against All Defendants 22 23. Plaintiff realleges and incorporates by reference each of the allegations of paragraphs 23 1 through 18 of the First Cause of Action, above, as though fully set forth herein. 24 24. An actual controversy has arisen and now exists as between Plaintiff EISENBERG 25 & ASSOCIATES, APC and Defendants in that Plaintiff contends and alleges that he performed 26 professional legal services at the special request and insistence of the Defendants in furnishing them 27 a defense to the Bollard Collection Action and that Defendants agreed to pay to the Plaintiff his 28 prevailing hourly rate for such legal services expended in defense of the Defendants in the Bollard -5-
1 Collection Action, and that Plaintiff performed such services as requested by Defendants their 2 defense of the Bollard Collection Action, and that as a consequence, Defendants owe 3 EISENBERG & ASSOCIATES, APC unpaid attorney's fees in the sum of $46,365.00, whereas 4 Defendants deny that they agreed to pay to the Plaintiff his prevailing hourly rate for such legal 5 services expended in Defendants' defense of the Bollard Collection Action, and further deny that 6 they owe the Plaintiff any sums whatever. 7 25. Plaintiff EISENBERG & ASSOCIATES, APC desires a judicial determination of its 8 rights and duties, and a declaration that Defendants, and each of them, owe and are indebted to 9 Plaintiff for unpaid attorney's fees in the sum of$46,365.00, plus interest thereon at the legal rate, 10 for services rendered by Plaintiff on Defendants' behalf in Plaintiffs defense of the Bollard 11 Collection Action on behalf of the Defendants. 12 26. A judicial declaration is necessary and appropriate at this time under the 13 circumstances in order that Plaintiff may ascertain its rights and duties with regard to the unpaid 14 obligations of the Defendants to Plaintiff, and to settle Defendants' financial responsibility to 15 Plaintiff. 16 WHEREFOR, Plaintiff prays judgment against Defendants, and each of them, as follows: 17 PRAYER 18 19 20 21 l. 2. 4. For special and general damages in a sum of at least $46,365.00, according to proof; For interest as may be permitted by law at the legal rate; For reasonable attorney's fees and costs of suit; F or a declaration that Defendants, and each ofthem, owe and are indebted to Plaintiff 22 for unpaid attorney's fees incurred by Plaintiff in the sum of$46,365.00, plus interest therein at the 23 legal rate, for services rendered by Plaintiff on Defendants' behalfin Plaintiffs defense ofthe Bollard 24 Collection Action on behalf of the Defendants. 25 4. For costs of suit herein; and 26 //I 27 III 28 II/ -6-
1 5. For such other and further legal and equitable relief as may be deemed just 2 3 Date: March 21, 2017 EISENBERG & ASSOCIATES, APC 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28-7-