Lanz v. Goldstone

• Decision Date: 29 December 2015
• Docket Number: A141694
• Citation: 243 Cal.App.4th 441,197 Cal.Rptr.3d 227
• Court: California Court of Appeals Court of Appeals
• Parties: Brian P. LANZ, Plaintiff and Respondent, v. Peter GOLDSTONE, Defendant and Appellant.

243 Cal.App.4th 441

197 Cal.Rptr.3d 227

Brian P. LANZ, Plaintiff and Respondent,

v.Peter GOLDSTONE, Defendant and Appellant.

A141694

Court of Appeal, First District, Division 2, California.

Filed December 29, 2015

Attorneys for Plaintiff and Respondent: Law Office of John J. Mavredakis, John J. Mavredakis, Santa Rosa

Attorneys for Defendant and Appellant: Murphy, Pearson, Bradley & Feeney, San Francisco, Harlan B. Watkins, Arthur J. Harris

Richman, Acting P.J.Appellant Peter Goldstone is a Santa Rosa attorney. So is respondent Brian Lanz. Lanz represented Hebe Garcia–Bolio (Bolio) in a Marvin action,¹ in connection with which Lanz had a contingency fee agreement. The Marvin action settled on the third day of trial, following which there soon arose a dispute as to the value of the settlement—and therefore Lanz's fee. Lanz filed suit against Bolio, who failed to respond, and her default was taken. Goldstone became Bolio's lawyer and, following relief from default, filed an answer and, as pertinent here, a cross-complaint. The cross-complaint had three causes of action, including breach of fiduciary duty and professional negligence, and it alleged several ethical violations by Lanz of the Rules of Professional Conduct and the Business and Professions Code, including that he acted with "moral turpitude."

By motions, Lanz defeated Bolio's claims in the cross-complaint, leaving extant only Lanz's claim against Bolio. That claim went to trial, with Lanz obtaining a complete victory, in a statement of decision highly critical of Bolio's conduct.

Lanz then sued Goldstone for malicious prosecution. Goldstone filed an anti-SLAPP motion to dismiss. The trial court denied it, concluding that Lanz met his burden under prong two of the anti-SLAPP analysis, demonstrating a probability of success on all three elements of malicious prosecution. We reach the same conclusion, and we affirm.

BACKGROUND

The Parties, the Marvin Action, and the Settlement

Bolio and Denis Ronchelli were involved in a relationship that began in 1991 and ended in 2009. They were not married. They apparently lived in a house on King Street, Santa Rosa, a house owned by Ronchelli. He also owned a house in Modesto. The record does not reveal much else about either of them or their relationship. One thing we do know, because Goldstone tells us, is that Bolio is a CPA, apparently one who is, as Goldstone's counsel admitted at oral argument, "internationally certified."

In October 2009, Bolio retained Lanz to represent her in an action against Ronchelli, in connection with which Bolio signed an "Attorney–Client Contingency Fee Contract" (contract). The contract provided that Bolio was "hiring us to represent you in the matter of your claims against Denis W. Ronchelli, arising out of your relationship with him over the past 18 years.... If a court action is filed, we will represent you until a settlement or judgment, by arbitration or trial, is reached, and in connection with any appropriate post-trial motions."

The contract also provided as follows:

"6. LEGAL FEES AND COSTS. We will only be compensated for legal services if a recovery is obtained for you. If no recovery is obtained, you will be obligated to pay only for costs, disbursements and expenses as described below.

"The fees to be paid by you to us will be 33 1/3 % (thirty-three and one-third percent) of the total recovery. Afterward, all unpaid costs and disbursements set forth in Paragraph 8, will be subtracted and the remainder paid to you. In the event that the case should go to trial or arbitration, or within 60 days from the first scheduled trial date or arbitration date, the fees to be paid by you to us will be 40% (forty percent) of the total recovery. [¶] ... [¶]

"7. NEGOTIABILITY OF FEES. The rates set forth above are not set by law, but are negotiable between an attorney and client."

The contract also included a provision by which Bolio granted Lanz a lien against any prospective recovery securing payment of the sums owed him. Finally, the agreement contained the express statement that Lanz does "not maintain errors and omissions (malpractice) insurance."

Lanz filed suit on behalf of Bolio, a Marvin action against Ronchelli: Hebe Garcia–Bolio v. Denis Ronchelli, et al., Sonoma County Superior Court No. SCV–246349 (Marvin action). The record contains little of what occurred in the Marvin action. What we do know is that it proceeded to trial in August 2010, and that it was settled on the third day of trial. The settlement was overseen by the trial judge (the Honorable Elaine Rushing), and was memorialized in a written "Settlement Agreement and Order" signed by the parties and approved by Judge Rushing on August 30, 2010.

The settlement agreement provided that Ronchelli would pay Bolio $10,000 cash, pay off the $106,000 mortgage balance on the Modesto house, and transfer ownership of that house to Bolio. In exchange, Bolio agreed to dismiss her causes of action and vacate the house on King Street where she had been residing.

According to Lanz's later-filed declaration, in agreeing to the settlement, Bolio advised Lanz that the fair market value of the Modesto house was $106,000 and that she wanted that house, not its cash equivalent, as part of the settlement. Bolio's version of events would be different, claiming, among other things, that the Modesto house was worth $80,000 and, moreover, had some $20,000 in deferred maintenance.

Within days of the August 30 settlement, the differences between Lanz and Bolio had resulted in several pieces of correspondence between them, including these:

On September 9, Bolio sent Lanz an e-mail asserting that (1) they had a subsequent agreement to cap his contingency fee percentage at 33 percent; (2) the value of the Modesto house was far less than $106,000; and (3) Lanz later promised he would shift his fees and costs to Ronchelli and not seek to recover them from Bolio. It bears noting that Bolio's lengthy e-mail made no claim about, or criticism of, any aspect of Lanz's handling of her case.

Lanz responded with two letters on September 15. One letter began as follows: "The following [is] the estimated settlement statement you requested, for your case against Denis Ronchelli. I cannot provide a statement of actual figures, as first of all, the case is not completed in that the required transactions have not yet been completed. Second, the value of the home and Denis's waiver of his request for reimbursement, can only be estimated. With that in mind, the statement being provided is an estimate of what I believe the fees to be. The issue of resolving the value of the recovery, is why I advised you to consult with separate counsel." The letter then went on to provide an itemized breakdown of various values.

The other letter provided in pertinent part as follows:

"This letter shall confirm that pursuant to your request, I obtained an extension of the deadline for you to advise Denis Ronchelli if he needs to proceed in giving the [Modesto house] tenant, notice to vacate, until September 11, 2010 and that I've advised you of my need to know, at least four times now, if you want him to follow through with giving him notice. As of this date, you have not given me an answer on this issue and the deadline has now passed...."

"This letter shall also confirm that I've advised you we have an issue to resolve, regarding the payment of my fees and costs. The issue being that the fees to be paid, have to be based on what we understand or believe the value of the home and the value of the waiver from Denis, to be. This letter shall also confirm that immediately after we signed the settlement agreement in this case, I advised you to consult with separate counsel on the issue of my fees, as we may disagree on the values of the home and the waiver. Further, that I also offered to advance the fees for you to have such a consultation. As of this date, you have not told me if you plan to consult with separate counsel and/or if you need me to advance the fees to do so. I would appreciate you letting me know at your earliest convenience.

"Thank you for your time and consideration in this matter."

Thereafter, Lanz filed in the Marvin action a notice of attorney lien in the amount of $60,000 against the settlement proceeds, claiming it was for fees and costs. Lanz also filed an action against Bolio.

Lanz's Action Concerning the Fee

On November 1, 2010, Lanz filed a complaint, and on December 1, an amended complaint, against Bolio concerning the fee dispute. It alleged two claims, for breach of contract and a common count.

Bolio was served, but did not file a response, and on January 11, 2011, Lanz filed a request for entry of default.

Sometime in early February, probably the 2nd, Bolio contacted Goldstone to represent her. The record does not contain any evidence from Goldstone as to what he did in early February. The record does contain this evidence from Lanz:

"[O]n or about February 4, 2011 [Lanz] was contacted by Bolio's new attorney, Peter Goldstone ('Goldstone'), who demanded that I voluntarily set aside Bolio's default. [¶] When I declined, Goldstone personally delivered an unfiled cross-complaint to my office on February 14, 2011 and threatened to file the cross-complaint unless I dismissed my complaint against Bolio and walked away from my unpaid fees and unreimbursed costs. Goldstone made it clear to me that the threatened litigation would be so expensive and protracted that the cost to defend the cross-complaint would exceed the amounts owed to me under the contingent fee agreement. In this regard, Goldstone rejected my suggestion that we submit all disputes to less expensive binding arbitration and told me that he would not rule out the possibility of prosecuting an appeal from any judgment. In order to remind me that I would need to defend the cross-complaint at my own expense, Goldstone asked me if I was insured even though Goldstone knew from the contingent fee agreement (which was attached to...