Blecher Collins Pepperman & Joye, P.C. v. Mireskandari
| Decision Date | 27 October 2016 |
| Docket Number | B263619 |
| Court | California Court of Appeals Court of Appeals |
| Parties | BLECHER COLLINS PEPPERMAN & JOYE, P.C., Plaintiff and Respondent, v. SHAHROKH MIRESKANDARI et al., Defendants and Appellants. |
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It is ordered that the opinion filed herein on October 27, 2016, be modified as follows:
1. On page 7, the first sentence of the last paragraph is modified to read as follows:
Four days before the trial date, on February 19, 2015, Mireskandari and Baxendale-Walker, appearing in pro. per., filed an ex parte application to continue the trial to an unspecified date in the future to give new counsel time to prepare for trial.
2. On page 7, line 4 of the last paragraph, the words "and Baxendale-Walker" are to be inserted between the words "Mireskandari" and "represented" so that the sentence reads:
As grounds for the continuance, Mireskandari and Baxendale-Walker represented that: (1) attorney Moest had effectively abandoned them "since before theChristmas holidays"; (2) Baxendale-Walker had, in the "past few weeks . . . developed a neurological condition that has caused cognitive impairment," rendering him unable to participate in his defense of the Fee Action or to travel from London to Los Angeles for the trial in the Fee Action.
3. On page 7, line 9 of the last paragraph, the words "and Baxendale-Walker" are to be inserted between the words "Mireskandari" and "attached" so the sentence reads:
For support, Mireskandari and Baxendale-Walker attached a declaration from attorney Moest indicating that he had generally fallen behind in his work and been neglectful, and a declaration from a general medical practitioner in Los Angeles who explained that Baxendale-Walker's blood showed a vitamin D deficiency and that Baxendale-Walker's MRI showed "plainly observable irregularities" indicative of a "severe debilitating brain illness."
4. On page 8, the first sentence of the second full paragraph is modified to read as follows:
On the day before trial was set to begin, Mireskandari and Baxendale-Walker, again appearing in pro. per., filed a second ex parte application to continue the trial either to give new counsel time to prepare for trial or until Baxendale-Walker recovered from his brain illness.
5. On page 18, first sentence of the first paragraph, the word "Mireskandari's" is changed to "their" so the sentence reads:
The former solicitors argue that the trial court erred in denying their two ex parte applications to continue trial.
6. On page 18, the entire second paragraph, beginning "Although both former solicitors" is deleted.
7. On page 19, first sentence of the first full paragraph, the word "Mireskandari's" is changed to "the" so the sentence reads:
We conclude that the trial court did not abuse its discretion in denying the two ex parte applications for a continuance, and do so for two reasons.
8. On page 19, line 8 of the first full paragraph, the sentence beginning "Mireskandari's first application" is modified to read as follows:
The first application lacked a declaration of notice and a proposed order, and the second application lacked a proposed order.
9. On page 19, line 12 of the first full paragraph, the words "and Baxendale-Walker's" are to be inserted between the words "Mireskandari's" and "failure" so the sentence reads:
Because litigants proceeding in pro. per. are "held to the same restrictive procedural rules as an attorney" (Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193; see also Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795), Mireskandari's and Baxendale-Walker's failure to follow the procedural rules for filing ex parte applications provides a sufficient basis on its own for denying those applications.
10. On page 19, first sentence of the second full paragraph, the word "Mireskandari's" is changed to "the" so the sentence reads:
Second, the trial court did not abuse its discretion in rejecting the continuance requests on their merits.
11. On page 19, the second sentence of the second full paragraph is modified to read as follows:
Mireskandari and Baxendale-Walker are correct that several of the relevant considerations cut in favor of granting a continuance—namely, that they had not previously asked for a continuance and that they had submitted declarations indicating that attorney Moest had been neglectful and that Baxendale-Walker was ill and unable to be present for trial.
12. On page 19, the third sentence of the second full paragraph is modified to read as follows:
But the trial court also had before it evidence that undermined the veracity of the declarations Mireskandari and Baxendale-Walker submitted, such as (1) the fact that attorney Moest had been filing discovery responses and objections during the period in which Mireskandari and Baxendale-Walker (and attorney Moest himself) said attorney Moest was being neglectful, and (2) the fact that the Los Angeles-based general practitioner had filed a declaration in support of a continuance in theUnited Kingdom matter purporting to be Mireskandari's doctor rather than Baxendale-Walker's.
13. On page 20, line 5 of the first paragraph, the sentence beginning "What is more," is modified to read as follows:
What is more, several other factors cut against granting a continuance—namely, that the ex parte applications came just days before the scheduled trial date but months after attorney Moest purportedly abandoned the former solicitors, and that Mireskandari and Baxendale-Walker were requesting an open-ended continuance until their counsel had time to prepare for trial or until Baxendale-Walker recovered from his "severe debilitating brain illness."
14. On page 20, first paragraph, the sentence beginning "Mireskandari invites us" is modified to read as follows:
The former solicitors invite us to reweigh these various factors in a way that favors them, but we must decline that invitation because such reweighing is the antithesis of review for an abuse of discretion.
15. On page 20, the first sentence of the first full paragraph is modified to read as follows:
The former solicitors raise two arguments in response.
16. On page 20, the second sentence of the first full paragraph, the words "he argues" are changed to "they argue" so the sentence reads:
To begin, they argue that the constitutional right to due process secures the right to be represented by counsel in civil cases, including the counsel of one's choice.
17. On page 20, line 14 of the first full paragraph, the sentence beginning "Next, Mireskandari asserts" is modified to read as follows:
Next, the former solicitors assert that Jurado v. Toys "R" Us, Inc. (1993) 12 Cal.App.4th 1615 dictates a ruling in their favor.
There is no change in the judgment.
Appellants' petition for rehearing is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. Nos. BC540650 & BC542523)
APPEAL from a judgment and an order of the Superior Court of Los Angeles County. Suzanne G. Bruguera, Judge. Affirmed.
Esner, Chang & Boyer, Stuart B. Esner and Joseph S. Persoff for Defendants and Appellants.
Blecher Collins & Pepperman, Maxwell M. Blecher and Howard K. Alperin for Plaintiff and Respondent.
* * * * * * Appellants Shahrokh Mireskandari (Mireskandari) and Paul Baxendale-Walker (Baxendale-Walker) are former solicitors in the United Kingdom who were suspended from the practice of law in 2008. Mireskandari and Baxendale-Walker (together, the former solicitors) subsequently came to the United States to file lawsuits, including some designed to collaterally attack their suspension. One of the law firms the former solicitors hired to represent them in some of their U.S.-based litigation sued them for not paying their bills; the former solicitors sued back for malpractice and breach of fiduciary duty. The trial court sustained a demurrer to the former solicitors' lawsuit without leave to amend, and awarded the law firm its unpaid fees after a bench trial. The former solicitors appeal both rulings. We conclude there was no error and affirm both judgments.
FACTS AND PROCEDURAL BACKGROUND
Mireskandari and Baxendale-Walker were duly licensed solicitors in the United Kingdom until 2008. That year, the Law Society of England and Wales (Law Society) and the Solicitors Regulatory Authority (Regulatory Authority) suspended their licenses to practice for ethical violations.1
In August 2012, the former solicitors retained respondents Blecher Collins Pepperman & Joye, P.C. (the Blecher firm) to represent them in several lawsuits. Although the Blecher firm only possessed a copy of the written retainer agreement signed by Mireskandari, Mireskandari told the firm orally and in writing that Baxendale-Walker had also signed the agreement.
Under the retainer agreement, the Blecher firm specifically agreed to represent both former solicitors at a reduced hourly rate and for a small contingency fee in alawsuit already pending in the Central District of California against the Law Society, the Regulatory Authority, several of their officials and others.2 In that lawsuit, the former solicitors alleged that they had been suspended solely because they were "outspoken minority solicitors," and sought more than $5 million in damages for violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C. § 1961), violations of the Computer Fraud and Abuse Act (18 U.S.C. § 1030), defamation, and intentional interference with contractual relations (the RICO Action).
The retainer agreement also...
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