Keshen v. Buffington

• Decision Date: 21 July 2021
• Docket Number: G058680
• Court: California Court of Appeals Court of Appeals
• Parties: MARY ANNE KESHEN, Plaintiff, Cross defendant and Appellant, v. ROGER J. BUFFINGTON et al., Defendants and Respondents BUFFINGTON LAW FIRM, PC, Cross-complainant and Respondent.

MARY ANNE KESHEN, Plaintiff, Cross defendant and Appellant, v. ROGER J. BUFFINGTON et al., Defendants and Respondents

BUFFINGTON LAW FIRM, PC, Cross-complainant and Respondent.

G058680

California Court of Appeals, Fourth District, Third Division

July 21, 2021

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court No. 30-2017-00952663 of Orange County, Sheila Fell, Judge.

Mary Anne Keshen, in pro. per., for Plaintiff, Cross-defendant and Appellant.

Robie & Matthai, Marta A. Alcumbrac and Gabrielle M. Jackson for Defendants and Respondents.

Law Office of Henry B. LaTorraca and Henry B. LaTorraca for Cross-complainant and Respondent.

OPINION

FYBEL J.

Introduction

Mary Anne Keshen filed a legal malpractice action against her former attorney and his law firm, and the law firm filed a cross-complaint for unpaid attorney fees. The malpractice action was resolved against Keshen by summary judgment. Following a bench trial on the cross-complaint, the trial court awarded damages to the law firm. Keshen appeals from the ensuing judgment. Finding no merit to any of her claims we affirm.

Statement of Facts

In March 2013, Keshen sued Terrence Tallen, her former business partner, for the alleged theft of funds from several of their jointly-owned real estate investment businesses (the Tallen litigation). Tallen filed a cross complaint against Keshen. Keshen retained Buffington Law Firm, P.C., ^[1] to represent her in the Tallen litigation in September 2014. Keshen's father, Leonard Keshen, paid all of the invoices for attorney fees and expert fees from Buffington Law. Buffington Law did not obtain Keshen's informed written consent before accepting compensation from someone other than their client. (Rules Prof. Conduct, former rule 3 310(F).)

The trial court in the Tallen litigation appointed a receiver to manage the entities involved in the litigation and prepare forensic accounting reports to “ascertain the expenditures of these entities and monies converted by Tallen.” The receiver's final report to the trial court concluded that Keshen's distributions from the entities exceeded Tallen's by almost $1 million. In response, Buffington Law, on behalf of Keshen, hired an accounting firm, SingerLewak LLP, to perform an analysis and forensic accounting of the entities. The SingerLewak report concluded that Tallen had taken more than $3.667 million in distributions from the entities, which was significantly more than the receiver had concluded.

The parties reached a settlement of the Tallen litigation at a mediation in January 2016; Tallen and Keshen both signed a written stipulation for settlement. Buffington Law and Attorney Buffington contend that before the mediation, they discussed with Keshen mediation strategies and issues to be presented at the mediation, including but not limited to the presentation of the SingerLewak report. Keshen contends that Buffington Law and Attorney Buffington told her the SingerLewak report was not completed at the time of the mediation. Before hiring Buffington Law and throughout the litigation, Keshen informed Attorney Buffington “she had no interest in settling the matter at any point and wanted the case to go to trial.”

After the mediation, Keshen represented herself during negotiations for a formal written settlement agreement. When those negotiations broke down, Tallen moved to compel arbitration based on the stipulation for settlement. Keshen represented herself in propria persona at the arbitration. In December 2017, the arbitrator ruled that the mediated settlement agreement was enforceable.

Although Keshen submitted a written brief, she did not appear at the evidentiary hearing before the arbitrator. In June 2018, a final arbitration award was issued. The award confirmed certain portions of the written stipulation for settlement that were still disputed between Keshen and Tallen. Tallen then moved the trial court to confirm the arbitration award and judgment was entered in favor of Tallen in October 2018 Keshen did not appeal from that judgment.

Procedural History

In March 2017, Keshen sued Buffington Law and Attorney Buffington for legal malpractice arising out of the Tallen litigation (the malpractice litigation). Keshen's causes of action were for negligence, negligence per se, breach of fiduciary duty, intentional misrepresentation, negligent misrepresentation, fraud by concealment, and breach of contract. All were based on Keshen's allegations that Buffington Law and Attorney Buffington lied to her about the status of the SingerLewak report, bullied her into settling the Tallen litigation at mediation, and did not represent her interests or competently perform their duties in connection with the stipulation for settlement. The malpractice litigation sought compensatory and punitive damages and disgorgement of legal fees.

After the malpractice litigation was transferred from Los Angeles County to Orange County, Buffington Law filed a cross complaint against Keshen for breach of contract, quantum meruit, and for a book account, seeking the fees owing for legal services performed in the Tallen litigation.

In March 2018, the malpractice litigation was stayed while the arbitration in the Tallen litigation was proceeding. The stay was lifted on May 31, 2018, and at that time the trial of the malpractice litigation was set for June 17, 2019.

Buffington Law and Attorney Buffington filed a motion for summary judgment of Keshen's complaint on the ground all her claims were barred by the mediation privilege. Keshen responded by filing a motion for leave to amend her complaint. Keshen's motion for leave to amend was denied, and the motion for summary judgment was granted.

Buffington Law and Attorney Buffington also filed a motion pursuant to Code of Civil Procedure section 1030 to require Keshen to post an undertaking in connection with her malpractice claims. The trial court granted the motion; Keshen never posted the required undertaking. Buffington Law and Attorney Buffington later filed a motion to dismiss Keshen's complaint for failure to post the undertaking. The trial court granted the motion to dismiss.

At the same time the trial court granted the motion for summary judgment, it also granted Buffington Law's motion to deem Keshen to have admitted all of Buffington Law's requests for admission in connection with the cross complaint due to her failure to timely respond to the discovery propounded by Buffington Law.

A bench trial on Buffington Law's cross complaint was conducted in September 2019. Neither party requested a statement of decision. The trial court awarded Buffington Law $90, 622 as quantum meruit damages. Judgment was entered in favor of Buffington Law and Attorney Buffington on Keshen's complaint, and in favor of Buffington Law on its cross complaint. Keshen appealed from the judgment.^[2]

Discussion

I.

Issues Relating to Keshen's Complaint

A.

The Trial Court Properly Granted Summary Judgment of the Complaint.

“We review orders granting summary judgment de novo. [Citation.] Summary judgment is warranted if the moving papers establish there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. [Citations.] [¶] We consider all of the evidence presented by the parties (except for evidence which the trial court properly excluded), liberally construe the evidence in support of the party opposing summary judgment, and resolve all doubts about the evidence in that party's favor. [Citation.] We must draw from the evidence all reasonable inferences in the light most favorable to the party opposing summary judgment.” (Caliber Paving Co., Inc. v Rexford Industrial Realty & Management, Inc. (2020) 54 Cal.App.5th 175, 179-180.)

The motion for summary judgment argued that Keshen could not prevail on her complaint because all of her causes of action were based on alleged misconduct by Buffington Law and Attorney Buffington that occurred during, or was related to, the mediation at which the Tallen litigation was resolved. Specifically, Keshen alleged that Buffington Law and Attorney Buffington: “aggressively persuaded” her to engage in the mediation; coerced her to continue the mediation and physically stopped her from leaving the mediation on several occasions by physically blocking the door; failed to mention the SingerLewak report or its findings during the mediation to Keshen, the mediator, Tallen, or Tallen's counsel; ignored Keshen's repeated statements that she did not want to settle the case out of court but instead wanted to take the case to trial; aggressively attempted to convince Keshen that she should settle because she would not prevail at trial due to a lack of evidence; “poorly and hastily drafted” the written stipulation to settle and advised Keshen to sign it, despite the fact it contained unreasonable or unenforceable terms; without Keshen's knowledge or consent, agreed with Tallen's counsel to partition the assets at the mediation without recognition of the findings in the SingerLewak report; and never shared the SingerLewak report's findings with Keshen and falsely reported to her that the report was unfinished and would not be available for the mediation or trial, in reliance on which Keshen agreed to settle the Tallen litigation at the mediation.

To further the goal of settlement of litigation without trial Evidence Code section 1119 broadly provides for the confidentiality of anything said in connection with a mediation. “No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any...