Klotz v. Milbank,Tweed, Hadley & McCloy ( 2015 )

Filed 6/30/15 Certified for Partial Pub. 7/28/15 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
ADAM M. KLOTZ et al., B255827
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. BC517937)
v.
MILBANK, TWEED, HADLEY &
MCCLOY et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los Angeles County, Joseph R.
Kalin, Judge. (Retired Judge of the L.A. Sup. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.) Affirmed in part and reversed in part.
Caldwell Leslie & Proctor, Christopher G. Caldwell, Joan Mack and Julia J.
Bredrup for Defendants and Appellants.
Fox Rothschild and Michael Eidel for Plaintiffs and Respondents.
———————
Defendants Milbank, Tweed, Hadley & McCloy (Milbank) and Deborah Festa
(Festa) appeal the trial court‘s order overruling their demurrer and denying their motion to
strike the First Amended Complaint under Civil Code section 1714.10.1 Plaintiffs
SageMill LLC (SageMill), Adam Klotz (Klotz) and Richard Spitz (Spitz) alleged that a
former business associate of theirs, Stephen Bruce (Bruce), who was a client of
defendants, conspired with defendants to unlawfully withdraw from SageMill and to
usurp a nascent business opportunity of SageMill. Plaintiffs alleged claims for breach of
fiduciary duty, conspiracy, and legal malpractice, and defendants moved to strike the
entire complaint as to the individual plaintiffs Klotz and Spitz because defendants had no
independent legal duty to plaintiffs nor did they act for their personal financial gain. The
trial court denied the motion. We reverse the trial court‘s order on plaintiffs‘ second
cause of action for conspiracy as to the individual plaintiffs Klotz and Spitz, finding that
any advice defendants gave Bruce arose from an attempt to contest or compromise a
claim or dispute, and thus was within the ambit of section 1714.10, and affirm the trial
court‘s order on plaintiffs‘ other claims for breach of fiduciary duty and legal malpractice.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
1. Plaintiffs’ Initial Complaint
Plaintiffs‘ complaint filed August 12, 2013 alleged claims for breach of fiduciary
duty, conspiracy in breach of fiduciary duty, and legal malpractice against Festa and
Milbank. Plaintiffs sought compensatory and punitive damages. The complaint alleged
that:
In or around December 2009, Klotz, Spitz, and Stephen Bruce (Bruce) commenced
working together in a partnership they named ―SageMill.‖ The work of the partnership
led to the formation of a limited liability company known as SageMill Capital Advisors
LLC (SageMill), whose certificate of formation was filed with the Delaware Secretary of
State on August 15, 2011. Klotz, Spitz, and Bruce were partners in the partnership until
1 All further statutory references are to the Civil Code unless otherwise indicated.
2
formation of SageMill, and are and have since formation been the sole managers of
SageMill.2
In founding SageMill, Klotz, Spitz and Bruce sought to capitalize on their trading
portfolio management, structured finance, and capital markets experience, and utilize
their skills to benefit SageMill‘s clients. SageMill‘s primary focus was to craft tailored,
short-term investment strategies, not available from leading banks or asset managers, for
select investors holding large positions in cash and near-cash securities, and to achieve
returns surpassing those of U.S. Treasuries without taking risk exceeding that of AAA-
type corporate debt. SageMill also envisioned it would function as an investment advisor
by drawing upon the collective expertise of Klotz, Spitz and Bruce and employing
rigorous methodologies for identifying, selecting, and monitoring opportunities suitable
for delivering carefully and conservatively targeted returns, as well as for crafting
optimized blends of these opportunities based upon characteristics such as volatility and
correlation.
SageMill is governed by an operating agreement that was signed on July 19, 2012,
and, by its terms, was effective retroactively to January 1, 2012. Among other provisions,
the operating agreement provides that a member may not withdraw without the consent of
SageMill‘s managers, and prohibits Klotz, Spitz and Bruce from engaging in the business
of rendering services to anyone that owns or operates a competitive business as defined in
the operating agreement.
Sometime in or about late 2010, when Festa was with the law firm of O‘Melveny
& Meyers, she commenced representation of SageMill. While at the O‘Melveny Firm,
Festa represented Bruce individually prior to undertaking the representation of SageMill.
Beginning in or about late 2010, Festa and her O‘Melveny partners also consulted with
Klotz, Spitz, and Bruce on multiple occasions, both via email and in individual and group
2The sole members of SageMill Capital Advisors LLC were Klotz and Spitz,
individually, and Bruce in his capacity as trustee of the Bruce and Mona Bruce Living
Trust.
3
phone calls, regarding SageMill‘s business. These communications contained statements
by Festa indicating that Sage Mill Capital Advisors was her client, and reflected that they
contained privileged attorney-client communications.
With respect to the nature of the representation, Festa sent a February 28, 2011
email to Bruce and Klotz in which Festa specifically referred to ―our client/counsel
arrangement‖ and stated: ―‗As we continue to make progress on the structuring front, we
should think about formalizing our client/counsel arrangement. Has SageMill been
formed yet? If so, please send me copies of the formation documents (certificate of
incorporation; bylaws) and general/organizational resolutions. If not, we might consider
starting the formation process, and in the interim moving forward under our [O‘Melveny
& Myers‘s] existing engagement letter with [Bruce].‘‖
In response to this email, Klotz and Festa discussed that the SageMill partners
would not require O‘Melveny‘s assistance with the formation or operating agreement of
SageMill. Klotz and Festa also discussed that O‘Melveny would continue to provide
advice to SageMill, and defer billing until SageMill commenced generating revenue, as
opposed to legal fees being funded from capital contributions. Following this
conversation, Festa never sent a formal written engagement agreement, and instead
continued to represent the SageMill Partnership (and later SageMill Capital Advisors
LLC) without one. Festa also never sent any conflict letter regarding her representation
of multiple parties, namely, the three partners.
On January 17, 2012, Festa sent Klotz and Spitz, and presumably Bruce, an email
announcing that she was leaving the O‘Melveny and joining the Milbank Firm as a
partner. Festa continued her representation of SageMill at the Milbank Firm.
In mid-2012, SageMill began to develop a new business opportunity, a venture
with Invest AD, an entity owned by the Abu Dhabi government. SageMill believed the
venture would generate $110 million of EBITDA3 by its third year. Sometime in July
3 Earnings Before Interest, Taxes, Depreciation and Amortization.
4
2012, Bruce sent the SageMill operating agreement to Festa for the purpose of seeking
legal advice about it. However, Bruce‘s consultation with Festa was not on behalf of
SageMill, but rather on behalf of himself personally, and Festa provided legal advice to
Bruce that was adverse to SageMill, Klotz, and Spitz. Festa did not disclose to Klotz or
Spitz that she had been consulted by Bruce individually to procure legal advice adverse to
Klotz, Spitz, and SageMill, nor did she obtain their informed written consent to do so.
The SageMill/Invest AD venture was never entered into because negotiations fell
apart at the end of July 2012. On August 3, 2012, Bruce emailed Klotz and Spitz,
indicating that he had consulted Festa at their suggestion, and presented them with a
―‗Termination Agreement‘‖ prepared by Festa that, if signed, would have dissolved
SageMill and released Bruce from all claims and obligations under the operating
agreement.
The SageMill-lnvest AD joint venture transaction allegedly was not consummated
principally because Bruce breached his fiduciary duties to Klotz and Spitz, and to
SageMill, by putting his own interests ahead of SageMill‘s interests and secretly working
to usurp for himself SageMill‘s corporate opportunity with lnvest AD. Plaintiffs alleged
that Festa aided and abetted Bruce in breaching his fiduciary duties by, among other
things, giving him legal advice that he could avoid enforcement of the SageMill operating
agreement, which, indeed, Bruce had just signed in mid-July 2012.
Festa prepared an agreement terminating Bruce‘s involvement with SageMill and
Festa provided advice to Bruce, without notice to SageMill, Klotz or Spitz, or a conflict
waiver, thus breaching her fiduciary duties to SageMill, Klotz and Spitz. Klotz called
Festa on the afternoon of August 3, 2012, and informed her that the Milbank Firm had a
conflict of interest in representing Bruce adverse to Klotz and Spitz, as well as to
SageMill.
The Milbank firm, and Festa, were aware of their ethical obligation to avoid such a
conflict of interests under California Rules of Professional Conduct rule 3-310. However,
and in spite of all of the above-described facts and the California Rules of Professional
5
Conduct, Festa insisted that she was never counsel to SageMill and told Klotz: ―even if I
was, that was at least a year ago, so you are just a former client.‖
On August 1, 2013, Festa commenced communications with Bruce about a new
retention agreement for himself individually as the client. On August 9, 2012, Festa sent
Klotz and Spitz an email denying that O‘Melveny or Milbank had ever represented
SageMill, and seeking waivers from Klotz and Spitz individually and on behalf of
SageMill of any claims they may have against the Milbank firm‘s representation of Bruce
in any negotiations or adversary proceedings or litigation adverse to either or both of them
or SageMill in connection with Bruce‘s rights and obligations with respect to SageMill.
On August 13, 2012, Festa responded to Klotz‘s August 9 email, stating that
Milbank would withdraw ―as counsel to Bruce in connection with the matter of his
withdrawal from the SageMill partnership.‖
Despite this agreement to withdraw, Festa and Milbank continued to represent
Bruce adverse to SageMill, Klotz and Spitz. Milbank continued to represent Bruce
personally with respect to continuing negotiations he was having with Invest AD to
establish a new joint venture, one that would exclude Klotz and Spitz, in clear violation of
the terms of SageMill‘s operating agreement. Bruce‘s new proposed joint venture
constituted both a corporate opportunity of SageMill and a ―Competitive Business‖ of
SageMill under the SageMill operating agreement.
2. Procedural History
(a) First Motion to Strike
On October 3, 2013, defendants filed a motion to strike the complaint pursuant to
section 1714.10 as to the allegations made by Klotz and Spitz only. Defendants asserted
that plaintiffs were required to obtain court approval before alleging a conspiracy claim
against an attorney; all of plaintiffs‘ claims, no matter how they were labeled as causes of
action, were essentially conspiracy claims and fell squarely within section 1714.10;4 and
4 Section 1714.10, subdivision (a) provides in pertinent part: ―No cause of action
against an attorney for a civil conspiracy with his or her client arising from any attempt to
6
none of plaintiffs‘ claims fell within either of the narrow exceptions to section 1714.10
because defendants did not have an independent legal duty to plaintiffs, nor did
defendants act for personal gain. Defendants concurrently demurred to the complaint.
In opposition, plaintiffs argued that defendants owed them an independent legal
duty based on their representation of the partnership because an attorney represents all of
the partners to the partnership, and that defendants acted unlawfully for their own
financial gain because defendants abandoned their representation of SageMill in favor of
a more lucrative client, Bruce. In the alternative, plaintiffs requested leave to amend to
plead that the exemptions of section 1714.10, subdivision (c) applied.
After taking the matter under submission at the November 21, 2013 hearing, the
court granted the motion to strike in part on the second cause of action for conspiracy as
to individual plaintiffs Klotz and Spitz. The court reasoned that plaintiffs had failed to
allege that defendants impliedly agreed not to accept representations adverse to Klotz or
Spitz as individuals sufficient to establish an independent legal duty, and there was no
showing that defendants gained a separate financial advantage sufficient to give Festa a
―‗stake in the wrongdoing.‘‖ The court observed that in reaching this conclusion, it had
necessarily determined that the individual plaintiffs Klotz and Spitz had not alleged an
attorney-client relationship between Milbank and them, and granted them leave to amend
the complaint to allege such a relationship. The court overruled defendants‘ demurrer.
contest or compromise a claim or dispute, and which is based upon the attorney‘s
representation of the client, shall be included in a complaint or other pleading unless the
court enters an order allowing the pleading that includes the claim for civil conspiracy to
be filed after the court determines that the party seeking to file the pleading has
established that there is a reasonable probability that the party will prevail in the
action. . . .‖ Subdivision (c) of section 1714.10 provides: ―This section shall not apply to
a cause of action against an attorney for a civil conspiracy with his or her client, where
(1) the attorney has an independent legal duty to the plaintiff, or (2) the attorney‘s acts go
beyond the performance of a professional duty to serve the client and involve a
conspiracy to violate a legal duty in furtherance of the attorney‘s financial gain.‖
7
(b) Plaintiffs‘ First Amended Complaint
On December 2, 2013, defendants filed a first amended complaint containing new
allegations concerning the attorney-client relationship between Klotz and Spitz one hand
and defendants on the other. Plaintiffs alleged that since commencing the representation
of SageMill in or about late 2010, Festa regularly communicated directly with Klotz and
Spitz until approximately mid-January 2012 when Festa left the O‘Melveny Firm. During
this period, Festa regularly provided advice on the marketing materials to the three
SageMill partners (and later members), provided legal advice concerning broker-dealer
licensing arrangements, tax structuring, and other matters. Festa thus rendered legal
advice which was intended to and did inure to the benefit of Klotz, Spitz, and Bruce
individually. Festa represented in emails that she was the attorney for SageMill, and
communicated directly with Bruce, Klotz and Spitz regarding legal advice, billings for
legal advice, the nature of their relationship, and regulatory issues affecting SageMill;
such communications included privileged attorney-client communications.
Festa, however, never sent a formal written engagement agreement and
represented SageMill without one, nor did she send a conflict letter. From the beginning
of their dealings with Festa, Klotz and Spitz believed that neither Festa nor her firm
would take a position that was adverse to them individually or to SageMill.
Plaintiffs alleged defendants owed them an independent duty (a) to refrain from
using confidential information and communications against them; (b) to refrain from
undertaking any representation that would be adverse to them individually, especially any
adverse representation wherein the party or parties adverse to Klotz and Spitz benefits by
the use of confidential information that defendants obtained in the course of the attorney-
client relationship; (c) to refrain from taking actions that undermined the ability of Klotz
and Spitz to benefit individually from their participation in defendants‘ client, SageMill;
and (d) to refrain from taking action to favor and benefit one member (Bruce) over Klotz
and Spitz individually because defendants should have reasonably anticipated and did in
8
fact anticipate that such favoritism would damage or destroy defendants‘ client, SageMill,
and thus damage or destroy Klotz‘s and Spitz‘s respective interests in SageMill.‖
Plaintiffs asserted claims for breach of fiduciary duty and conspiracy, and
SageMill asserted a claim for legal malpractice.
(c) Defendants‘ Demurrer/Motion to Strike
On January 6, 2014, defendants demurred to the First Amended Complaint on the
ground that it was barred by section 1714.10. Defendants argued that the complaint failed
to allege that defendants represented Klotz and Spitz as individuals, or that defendants
owed an independent duty to them as nonclients; further, the individual plaintiffs‘
subjective understanding of an attorney-client relationship did not trigger the independent
duty exception.
In opposition, plaintiffs asserted that section 1714.10 did not apply because the
action did not arise from the attorney‘s attempt to contest or compromise a claim or
dispute; the independent duty exception was not limited to a duty created by the attorney-
client relationship; and Klotz and Spitz were intended beneficiaries of defendants‘
representation of SageMill.
After taking the matter under submission, on March 25, 2014, the court overruled
defendants‘ demurrer, finding plaintiffs had alleged an implied agreement between
defendants and the individual plaintiffs not to engage in any representation adverse to
them. Specifically, the court stated: ―Plaintiffs have adequately amended to allege that
there was an implied agreement between Klotz and Spitz as individuals and Festa, that
Festa would not engage in any representation adverse to Klotz or Spitz as individuals, and
therefore that Festa owed independent legal duties to Klotz and Spitz as individuals
within the meaning of Civil Code Section 1714(c). . . . This relieves plaintiffs from the
petition procedure outlined in Section 17149. [¶] The demurrer that both of the causes of
action alleged by Klotz and Spitz fail because they are solely based on the derivative loss
of the IAD deal, which belonged to Sagemill, and not to Klotz or Spitz as individuals is
also overruled. Klotz and Spitz allege damages in the form of lost wages and other
9
personal income that they, as individuals, allegedly lost due to the alleged usurpation of
Sagemill‘s corporate opportunity in the form of the IAD deal. See, First Amended
Complaint, paragraphs 84, 93. This is adequate to allege personal damages unlike the
loss of corporate assets which [caused] damage [to] plaintiffs only incidentally by
reduction in the value of the stock held.‖
DISCUSSION
I. Scope of Appeal and Standard of Review
The parties do not dispute the fact that the trial court‘s order overruling Bruce‘s
special demurrer based on 1714.10 is directly appealable. Subdivision (d) of section
1714.10 permits a direct appeal from ―[a]ny order made under subdivision (a), (b), or (c)
[of section 1714.10] which determines the rights of a petitioner or an attorney against
whom a pleading has been or is proposed to be filed.‖ Thus, defendants may appeal the
trial court‘s order on their demurrer finding that plaintiffs need not comply with section
1714.10. (See Evans v. Pillsbury, Madison & Sutro (1998) 65 Cal.App.4th 599, 602–604
(Evans).) Our review is de novo. (Pavicich v. Santucci (2000) 85 Cal.App.4th 382, 389
(Pavicich).)
However, failure to obtain prefiling approval of conspiracy claims does not
warrant dismissal of other claims not requiring prefiling approval. (Alden v. Hindin
(2003) 110 Cal.App.4th 1502, 1508 (Alden).) In Alden, the complaint alleged two causes
of action, one for conspiracy against the attorney, and one for malicious prosecution. (Id.
at p. 1504.) The trial court found both claims subject to a motion to strike under section
1714.10 because that section required approval to file a pleading containing a conspiracy
claim. (Id. at p. 1506.) Alden reversed because although the malicious prosecution cause
of action was directed at both defendant and her attorneys, it did not charge attorneys with
liability for conspiring with their client but, instead, alleged that attorneys themselves had
acted without probable cause and with malice in bringing suit against plaintiff. (Ibid.) As
explained in Alden, ―noncompliance with section 1714.10, subdivision (a) would require
dismissal of otherwise exempt causes of action for actual fraud [citation], breach of
10
fiduciary duty [citation], or for that matter any other claims against the attorney [citation],
if a conspiracy cause of action subject to section 1714.10 were asserted along with them.
There is no evidence that the drafters of section 1714.10 intended such a gratuitously
destructive result, and the language of subdivision (b) clearly shows that they did not.‖
As a result, although the conspiracy claim was properly stricken, because the malicious
prosecution claim was not based on allegations of conspiracy, Alden held the trial court
erred in dismissing that claim. (Id. at p. 1508.)
Thus, those claims that are not conspiracy claims would survive the demurrer.
That does not, however, makes those claims cognizable in this appeal because such
claims are before this court on an order overruling a demurrer, which order does not
constitute an appealable order. (See Berg & Berg Enterprises, LLC v. Sherwood
Partners, Inc. (2005) 131 Cal.App.4th 802, 821 (Berg).) Thus, our review is limited to
whether the trial court properly denied defendants‘ demurrer to plaintiffs‘ causes on the
basis that such claims asserted claims for conspiracy between an attorney and the
attorney‘s client. (Evans, supra, 65 Cal.App.4th at p. 604, fn. 4 [§ 1714.10, subd. (d)
does not authorize review of matters apart from issues related to § 1714.10].) We
therefore do not review whether those nonconspiracy claims state causes of action.
II. The Second Cause of Action for Conspiracy is Subject to a Motion to Strike
A plaintiff must obtain a prior court order before filing an action against an
attorney that includes a claim for civil conspiracy with a client arising from any attempt to
contest or settle a claim while representing the client. (Civ. Code, § 1714.10, subd. (a);
see Hung v. Wang (1992) 8 Cal.App.4th 908, 924–925; Rickley v. Goodfriend (2013) 212
Cal.App.4th 1136, 1158.) The purpose of section 1714.10 is to discourage frivolous
claims that an attorney conspired with his or her client to harm another. Therefore, rather
than requiring the attorney to defeat the claim by showing it is legally meritless, plaintiff
must make a prima facie showing before being allowed to assert the claim. (Stueve v.
Kahn (2013) 222 Cal.App.4th 327, 329.)
11
―Section 1714.10 prohibits the unauthorized filing of an action for nonexempt civil
conspiracy against an attorney based on conduct arising from the representation of a client
that is in connection with any attempt to contest or compromise a claim or dispute.‖
(Berg, supra, 131 Cal.App.4th at p. 815.) Section 1714.10 ―was enacted to combat ‗the
use of frivolous conspiracy claims that were brought as a tactical ploy against attorneys
and their clients and that were designed to disrupt the attorney-client relationship.‘‖ The
statute thus performs a ―‗gatekeeping‘ function and requires a plaintiff to establish a
reasonable probability of prevailing before he or she may pursue a cause of action against
an attorney for a civil conspiracy with his or her client arising from any attempt to contest
or compromise a claim or dispute.‖ (Stueve v. Kahn, supra, 222 Cal.App.4th at p. 329.)
―Applying section 1714.10 thus requires the court to initially determine whether the
pleading falls either within the coverage of the statute or, instead, within one of its stated
exceptions.‖ (Berg, at p. 818.)
In Berg, supra, 131 Cal.App.4th 802, the court addressed the scope of section
1714.10 and, in particular, discussed the requirement that the action be one for civil
conspiracy between an attorney and his or her client. The court found that section
1714.10 was applicable to the entirety of the plaintiff‘s complaint, ―without regard to the
labels attached to the causes of action or whether the word ‗conspiracy‘—having no
talismanic significance—appears in them. The particular allegations throughout [the
plaintiff‘s] entire complaint of the union of conduct between attorney and client arising
out of the legal representation, the absence of other allegations of independent conduct by
[the defendant‘s attorney], and the incorporation of conspiracy allegations into every
cause of action, more than suffice to subject all the claims against [the attorney] to the
initial coverage of section 1714.10, as provided in subdivision (a).‖ (Berg, at p. 824.)
The first exception to section 1714.10 the independent duty exception, ―obviously
speaks to a relationship beyond that of attorney-client.‖ (Evans, supra, 65 Cal.App.4th at
p. 605.) An independent legal duty may also arise when an attorney engages in conduct
that goes ―way beyond the role of [a] legal representative.‖ (Burtscher v. Burtscher
12
(1994) 26 Cal.App.4th 720, 727.) ―‗Attorneys are expected to stay within the bounds of
law in representing their clients and advising about an appropriate course of
action . . . . Counsel who circumvent established legal channels to accomplish a desired
result, participating with the client in a scheme to dispossess the other spouse of his or her
claimed property or possessory rights, are not performing the ―normal services of an
attorney.‖ Conduct of this sort exposes counsel to a host of tort claims—including a
cause of action for attorney-client conspiracy.‘‖ (Rickley v. Goodfriend, supra, 212
Cal.App.4th at p. 1154, italics omitted.)
Thus, an attorney has an independent legal duty to refrain from defrauding
nonclients. For example, a conspiracy claim may be brought where a corporation and its
attorney conspire to conceal from potential investors that other investors have threatened
litigation against the venture. (Pavicich, supra, 85 Cal.App.4th at p. 397.) A conspiracy
claim is proper where an insurance company‘s coverage counsel misrepresents the policy
limits to a party that has obtained a judgment against the company‘s insured. (Shafer v.
Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone (2003) 107 Cal.App.4th 54, 84–
85.) Attorneys had an independent legal duty not to interfere with the remediation plan of
their clients instituted on behalf of the plaintiffs and had a duty to fairly disburse
remediation funds held in the attorneys‘ trust account. (Rickley v. Goodfriend, supra, 212
Cal.App.4th at p. 1158.)
The second exception applies to actions taken in furtherance of the attorneys‘
financial gain and means that through the conspiracy, the attorney derived economic
advantage over and above monetary compensation received in exchange for professional
services actually rendered on behalf of a client. (Berg, supra, 131 Cal.App.4th at p. 835.)
This exception does not apply to fees charged, even where the fees were excessive or the
services unnecessary. ―Such allegations could be made by an adversary in any case, thus
significantly weakening the gatekeeping function of the statute.‖ (Id. at p. 836.)
13
A. Application to Second Cause of Action for Conspiracy
Here, we find the second cause of action of the first amended complaint for
conspiracy does not fall within the two exemptions of section 1714.10 because it does not
allege any duty of defendants Festa or Milbank that is beyond the duty inherent in the
rendition of services of an attorney to a client, nor does it allege any financial gain that
goes beyond that to be realized through compensation paid for professional legal services.
First, the existence of an attorney-client relationship between Festa/Milbank and
the individual plaintiffs Klotz and Spitz is not determinative of whether a conspiracy
claim against those defendants survives a motion to strike. Festa/Milbank‘s conduct here
consisted of an allegedly harmful conflict of interest and did not arise out of the breach of
any duty independent of the attorney client relationship, but instead arose in the course of
the provision of services in connection with the settlement of a claim or dispute, namely,
Bruce‘s withdrawal from the partnership and request for advice on a new business
opportunity that potentially conflicted with SageMill‘s interests. Therefore, it cannot be
the basis of a conspiracy claim.
In that regard, this case differs from the cases in which the court found an
independent duty. For example, in Pavicich, supra, 85 Cal.App.4th 382, the attorney
conspired to conceal material information from investors and thus engaged in conduct
beyond the provision of legal services, and violated an independent duty. (Id. at p. 397.)
In Rickley v. Goodfriend, supra, 212 Cal.App.4th 1136, the attorney conspired with the
client to assist the client in avoiding the client‘s remediation obligations, and thus
engaged in conduct that violated a duty beyond the duties embodied in the provision of
legal services. (Id. at p. 1158.)
Second, plaintiffs have not pleaded any financial gain sufficient to evade the bar of
section 1714.10. The fact that Festa/Milbank would obtain more fees through
representing Bruce as a more lucrative solo client rather than as a member of SageMill
does not constitute financial gain within the meaning of the statute. (Berg, supra, 131
Cal.App.4th at p. 835.)
14
As a result, the order of the trial court denying defendants‘ special motion to strike
is reversed, and plaintiffs must obtain a court order before filing such claims. (§ 1714.10,
subd. (a).)
B. Plaintiffs’ Remaining Causes of Action
On the remaining two claims for breach of fiduciary duty and legal malpractice,
the individual plaintiffs‘ claims do not rely on the conspiracy allegations that defendants
assisted Bruce in withdrawing from the partnership and usurping the corporate
opportunity, but are founded on an alleged attorney-client relationship between the
individual plaintiffs, either directly or derivatively through the SageMill entity as its
partners, and later members. (See, e.g., Johnson v. Superior Court (1995) 38 Cal.App.4th
463, 476–477 [factors considered in determining whether attorney-client relationship with
partnership also encompassed the individual partners of the partnership].) Plaintiffs first
and third causes of action are based upon defendants‘ alleged conflict of interest (breach
of the duty of loyalty) and malpractice (breach of the duty of care) based on defendants‘
duty to them as alleged clients. (See Alden, supra, 110 Cal.App.4th at p. 1508.) These
non-conspiracy claims are not reviewable in this appeal because an order overruling a
demurrer is not appealable. Therefore, we do not consider whether such claims would
survive demurrer in the context of a motion to strike under section 1714.10, and the trial
court‘s order denying defendant‘s motion to strike those claims is affirmed.
15
DISPOSITION
The order is reversed to strike the second cause of action for conspiracy asserted
on behalf of individual plaintiffs Klotz and Spitz. In all other respects, the order is
affirmed. The parties are to bear their own costs on appeal.
JOHNSON, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
16
Filed 7/28/15
*
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
ADAM M. KLOTZ et al., B255827
(Los Angeles County
Plaintiffs and Respondents, Super. Ct. No. BC517937)
v. CERTIFICATION AND
ORDER FOR PUBLICATION
MILBANK, TWEED, HADLEY &
MCCLOY et al.,
Defendants and Appellants.
The opinion in the above-entitled matter filed June 30, 2015, was not certified for
publication in the Official Reports. For good cause it now appears that the opinion
should be published in the Official Reports with the exception of the part II subpart B of
the Discussion and it is so ordered.
ROTHSCHILD, P. J. JOHNSON, J.
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for partial publication with the exception of part II subpart B of the Discussion.