The Cochran Firm v. Seck CA2/4

Filed 5/31/23 The Cochran Firm v. Seck CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE COCHRAN FIRM et al., B321448
Plaintiffs and (Los Angeles County
Appellants, Super. Ct. No. 19STCV40383)
v.
IBIERE SECK et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael P. Linfield, Judge. Affirmed.
The Cochran Firm California, Edward M. Lyman and
Brian T. Dunn, for Plaintiffs and Appellants.
Baker, Keener & Nahara, Phillip A. Baker and Derrick
S. Lowe, for Defendants and Respondents.
_______________________________________________
INTRODUCTION
An attorney and her law firm entered into a fee
sharing agreement before she left the firm. The agreement
addressed the compensation the attorney would receive for
the cases on which she had worked that would remain with
the law firm after her departure. The law firm filed a
complaint seeking a declaration that the agreement was
unenforceable. The trial court denied the law firm’s
subsequent motion for summary judgment, finding that the
law firm was not entitled to a declaration in its favor. After
the law firm then refused to pay the attorney pursuant to
the fee sharing agreement, the attorney filed a cross-
complaint for breach of contract. The trial court granted the
attorney’s motion for summary judgment, finding that the
agreement was enforceable and that the law firm breached
the agreement, causing the attorney to suffer damages. We
agree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Ibiere Seck is an attorney and was employed at the
Cochran Firm until December 31, 2018. After leaving the
Cochran Firm, Seck established her own law firm, Seck Law,
P.C.
2
Prior to her departure from the Cochran Firm, in
December 2018, Seck and Brian Dunn, the firm’s managing
partner, negotiated a fee sharing agreement for cases on
which Seck worked that would remain at the firm. This
agreement to share attorney fees on particular cases was
memorialized in a Memorandum of Understanding (MOU)
drafted by Dunn, dated December 13, 2018. The MOU
provided that Seck would receive 25 percent of the net
attorney fees recovered by the Cochran Firm on a specified
list of cases, which included Reddick v. LACMTA (the
Reddick matter). The MOU also stated that “Seck ha[d]
undertaken substantial efforts to secure the effective
representation of the plaintiff(s) during her tenure with The
Cochran Firm” on these cases. The “agreement [was] made
and [was] based on the representations made by Ibiere Seck
that she worked on these cases in some capacity.”1 The
MOU was not signed by Seck or Dunn, on behalf of the
Cochran Firm.
In 2019, the Cochran Firm paid Seck 25 percent of the
net attorney fees it received in four cases (Cain v. FedEx,
Owens v. Blackwood, Harvey v. Uber, and Acosta v.
Autobuses Cordinados), all of which were listed in the MOU.
The Cochran Firm also paid Seck 25 percent of the net
attorney fees it received in another case, Harris v. UPS (the
Harris matter). The Harris matter was not listed in the
1 The Cochran Firm later affirmed in its discovery responses that
the negotiated 25 percent of attorney fees was not based on the amount
of work that Seck performed on the listed cases in the MOU.
3
MOU, but it was part of the discussions between Seck and
Dunn in December 2018. As of the date of the MOU, it was
unclear whether the matter would remain with the Cochran
Firm or leave with Seck. It was later determined that the
Harris matter would stay with the Cochran Firm, and it was
then subject to the MOU.
When a settlement was reached in the Reddick matter
in October 2019, Seck asserted a lien on 25 percent of the
attorney fees recovered by the Cochran Firm. Despite the
Cochran Firm’s demand, Seck refused to withdraw the lien.
On October 29, 2019, Seck and the Cochran Firm
entered into a separate, mediated fee sharing agreement
entitled, “Stipulation for Settlement” (stipulation). In the
stipulation, Seck agreed to distribute to the Cochran Firm
specified percentages of net attorney fees received on cases
that Seck took with her upon leaving the firm. On
November 12, 2019, Seck paid the Cochran Firm $160,000
pursuant to the stipulation. This amount reflected 40
percent of the net attorney fees Seck received in the case,
Z.G. v. Long Beach Unified School District, which was a case
listed in the stipulation.
PROCEDURAL HISTORY
On November 7, 2019, the Cochran Firm filed a
complaint against Seck 2 for declaratory relief and abuse of
2 The named plaintiffs were: “The Cochran Law Firm California,
a Professional Corporation; and Dunn Law, APC, a Professional
Corporation, d/b/a ‘The Cochran Firm California.’” The named
(Fn. is continued on the next page.)
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process. The Cochran Firm sought a declaration that the
December 13, 2018 MOU did not create a valid fee sharing
agreement between the firm and Seck in the Reddick matter
because the client was not informed and did not consent in
writing to such an agreement, as required by the State Bar
Rules of Professional Conduct. The Cochran Firm also
sought a declaration that, in the Reddick matter, Seck had
no legal authority to assert a lien on the settlement
proceeds.3 On January 21, 2020, the trial court granted
Seck’s anti-SLAPP motion as to the abuse of process claim.
On February 11, 2020, the Cochran Firm moved for
summary judgment. On July 13, 2020, the trial court denied
the motion, finding that the Cochran Firm was not entitled
to a declaration in its favor.
After the trial court’s ruling, Seck made a formal
demand for payment of her share of the attorney fees in the
Reddick matter on September 10, 2020. The Cochran Firm
rejected the demand and stated it would “never consent to
the payment of ANY fees absent a judgment or specific order
directing payment of a specific amount to her.”
On October 13, 2020, Seck filed a cross-complaint
against the Cochran Firm for a single breach of contract
claim based on the firm’s refusal to pay Seck her 25 percent
defendants were: “Ibiere Seck, an individual; and Seck Law, P.C., a
Professional Corporation.”
3 The Cochran Firm did not dispute the enforceability of the
October 29, 2019 stipulation concerning the cases that Seck took with
her.
5
share of the attorney fees in the Reddick matter.4 On
January 24, 2022, Seck moved for summary judgment on the
breach of contract claim, and on April 14, 2022, the trial
court granted the motion. The court found the MOU
“created a valid fee sharing agreement” between the parties.
The court further found the Cochran Firm breached the
agreement and the failure to pay Seck the funds owed to her
under the agreement entitled her to damages. The court
rejected the Cochran Firm’s defenses to Seck’s breach of
contract claim.
On May 25, 2022, the court entered judgment in favor
of Seck and against the Cochran Firm. Seck was awarded
$500,000 (25 percent of the net attorney fees in the Reddick
matter) plus interest at a rate of 10 percent calculated from
September 10, 2020 to the date of payment. The court also
ruled that Seck, as the prevailing party, was entitled to
recover costs. Based on the grant of Seck’s motion for
summary judgment, the court stated that the Cochran
Firm’s complaint against Seck was resolved and moot, and
therefore the court dismissed the complaint with prejudice.
The Cochran Firm timely appealed.
4 Seck Law, a Professional Corporation, was not a party to the
cross-complaint. Contrary to appellant’s assertion, the Cochran Firm,
a Professional Corporation, is listed as a cross-defendant in the cross-
complaint. (See Nelson v. East Side Grocery Co. (1915) 26 Cal.App.
344, 347 [“in determining who the parties to an action are the whole
body of the complaint is to be taken into account, and not the caption
merely”]; accord Plumlee v. Poag (1984) 150 Cal.App.3d 541, 547.)
6
DISCUSSION5
A. Standard of Review
“Summary judgment is appropriate only ‘where no
triable issue of material fact exists and the moving party is
entitled to judgment as a matter of law.’” (Regents of the
University of California v. Superior Court (2018) 4 Cal.5th
607, 618.) “A plaintiff or cross-complainant has met his or
her burden of showing that there is no defense to a cause of
action if that party has proved each element of the cause of
action entitling the party to judgment on the cause of action.
Once the plaintiff or cross-complainant has met that burden,
the burden shifts to the defendant or cross-defendant to
show that a triable issue of one or more material facts exists
as to the cause of action or a defense thereto. (Code Civ.
Proc., § 437c, subd. (p)(1).)
“We review the trial court’s ruling on a summary
judgment motion de novo, liberally construe the evidence in
favor of the party opposing the motion, and resolve all
doubts concerning the evidence in favor of the opponent.”
5 Although the subject motion for summary judgment was brought
by Seck only, the trial court’s order granting summary judgment
effectively resolved the Cochran Firm’s complaint in which Seck and
Seck Law, P.C. were named defendants. We also note that Seck is the
sole owner of Seck, P.C., a fact acknowledged by the Cochran Firm.
Thus, both defendants jointly responded to the appeal. The Cochran
Firm does not challenge Seck Law, P.C.’s standing to respond to the
appeal.
7
(Grebing v. 24 Hour Fitness USA, Inc. (2015) 234
Cal.App.4th 631, 636-637.)
B. Fee Sharing Agreement
The Cochran Firm asserts, with limited analysis,
multiple challenges to the trial court’s order granting Seck’s
motion for summary judgment. We take each argument in
turn.
The Cochran Firm contends the MOU is unenforceable
because it violated the Rules of Professional Conduct, rule
1.5.1, which prohibits lawyers “who are not in the same law
firm” from dividing a fee for legal services unless certain
requirements are met, including written consent from the
client. Here, the MOU was entered into on December 13,
2018, while Seck was a lawyer with Cochran Firm. Seck’s
employment with the firm did not end until December 31,
2018. The Cochran Firm fails to provide any valid argument
or evidence to refute this fact. Thus, this fee sharing
agreement was not subject to rule 1.5.1. (Chambers v. Kay
(2002) 29 Cal.4th 142, 150 [decided under former rule 2-
200(A)];6 see also Anderson, McPharlin & Connors v. Yee
6 Rules of Professional Conduct, rule 1.5.1, superseded former
rule 2-200 on November 1, 2018. All events pertaining to this case
occurred after rule 1.5.1 was in full force. However, former rule 2-
200(A) similarly prohibited lawyers from dividing a fee for legal
services with “a lawyer who is not a partner of, associate of, or
shareholder with the [lawyer]” unless certain requirements are met.
(Reeve v. Meleyco (2020) 46 Cal.App.5th 1092, 1097-1098.) We are not
(Fn. is continued on the next page.)
8
(2005) 135 Cal.App.4th 129, 133 [former rule 2-200 has no
applicability to an agreement between two attorneys in the
same firm, even if the agreement “would not be performed . .
. until a time at which [the attorney] was no longer a
partner”].)
Next, the Cochran Firm argues that the trial court
applied the wrong elements for a breach of contract cause of
action. We disagree. As stated by our Supreme Court, “the
elements of a cause of action for breach of contract are (1)
the existence of the contract, (2) plaintiff’s performance or
excuse for nonperformance, (3) defendant’s breach, and (4)
the resulting damages to the plaintiff.” (Oasis West Realty,
LLC v. Goldman (2011) 51 Cal.4th 811, 821.) In a
conclusory manner, the Cochran Firm contends the jury
instruction that outlines the elements for a breach of
contract claim requires that a “defendant’s breach was a
substantial factor in causing plaintiff’s harm” and further
requires “certain conditions precedent were met.” (CACI
No. 303) First, the substantial factor element in the jury
instruction is embraced in the damages element.
“‘Causation of damages in contract cases . . . requires that
the damages be proximately caused by the defendant’s
breach, and that their causal occurrence be at least
reasonably certain.’ (Vu v. California Commerce Club, Inc.
(1997) 58 Cal.App.4th 229, 233.) A proximate cause of loss
or damage is something that is a substantial factor in
aware of, nor did the Cochran Firm point to, any case in which rule
1.5.1 was applied.
9
bringing about that loss or damage. (See e.g., BAJI No. 3.76;
Mitchell v. Gonzales (19991) 54 Cal.3d 1041, 1052-1053.)”
(US Ecology, Inc. v. State of California (2005) 129
Cal.App.4th 887, 909.) Second, the jury instruction relating
to conditions precedent are optional as not every contract
has conditions for performance. (See Directions for Use foll.
CACI No. 303 (2023 ed.).) The Cochran Firm fails to
articulate that conditions for performance were at issue in
this case.
The Cochran Firm also contends that the MOU was not
sufficiently definite to be enforceable. “Whether a contract
term is sufficiently definite to be enforceable is a question of
law for the court.” (Ladas v. California State Auto. Assn.
(1993) 19 Cal.App.4th 761, 770, fn. 2 (Ladas); see also Patel
v. Liebermensch (2008) 45 Cal.4th 344, 348, fn. 1.) “‘Where a
contract is so uncertain and indefinite that the intention of
the parties in material particulars cannot be ascertained, the
contract is void and unenforceable.’ (Cal. Lettuce Growers v.
Union Sugar Co. (1955) 45 Cal.2d 474, 481; see also Civ.
Code, § 1598; Ladas, supra, 19 Cal.App.4th at p. 770.)”
(Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 209.)
Here, the material terms of the fee sharing agreement
between the parties can be readily ascertained from the
MOU. The Cochran Firm was required to pay Seck 25
percent of the net attorney fees for a specified list of cases.
We are provided with no reasonable explanation why the
Cochran Firm contends that the MOU was not sufficiently
definite given that it performed under the terms of the
10
agreement on five separate occasions without incident.
Furthermore, the Cochran Firm does not dispute that the
MOU (drafted by Dunn) lists the Reddick matter as one of
the cases in which the Cochran Firm was required to pay
Seck 25 percent of the net attorney fees.
We further reject the Cochran Firm’s assertion that the
MOU lacked mutual assent, given that the Cochran Firm
performed under the agreement repeatedly, paying Seck 25
percent of net attorney fees in numerous cases. (See Sellers
v. JustAnswer, LLC (2021) 73 Cal.App.5th 444, 460
[“‘“‘mutual manifestation of assent, whether by written or
spoken word or by conduct, is the touchstone of contract’”’”];
Russell v. Union Oil Co. (1970) 7 Cal.App.3d 110, 114.)
In addition, the Cochran Firm argues there was a lack
of consideration. Generally, “there are two requirements in
order to find consideration. The promisee must confer (or
agree to confer) a benefit or must suffer (or agree to suffer)
prejudice . . . . [¶] It is not enough, however, to confer a
benefit or suffer prejudice for there to be consideration . . . .
[T]he second requirement is that the benefit or prejudice
‘“must actually be bargained for as the exchange for the
promise.”’ Put another way, the benefit or prejudice must
have induced the promisor’s promise.” (Steiner v. Thexton
(2010) 48 Cal.4th 411, 420-421, quoting Bard v. Kent (1942)
19 Cal.2d 449, 452.) Here, there was bargained-for
consideration for the MOU. The agreement to pay Seck
resulted from negotiations between Seck and the Cochran
Firm in which the parties reached a deal as to the
11
reasonable attorney fee split for cases on which Seck worked
that would remain at the firm.7
The Cochran Firm also contends that its conduct was
not a substantial factor in causing Seck harm because, as
alleged in the cross-complaint, 25 percent of the attorney
fees from the Reddick matter was set aside pending the
outcome of the Cochran Firm’s declaratory relief action.
However, the terms of the MOU were not that 25 percent of
the net attorney fees would be set aside. Rather, the terms
explicitly provide for Seck to be paid 25 percent of the net
attorney fees. Because the Cochran Firm refused to do so,
the firm breached the MOU causing Seck to suffer damages.
The Cochran Firm spends a portion of its briefing on
the amount or lack of significant time Seck spent working on
the Reddick matter. As the Cochran Firm admitted in
discovery responses, the negotiated 25 percent of attorney
fees was not based on the amount of work that Seck
performed on the listed cases. Furthermore, the MOU
specifically states that “Seck [h]ad undertaken substantial
efforts to secure the effective representation of the
plaintiff(s) [in a specified list of cases] during her tenure
with The Cochran Firm,” and the agreement was made and
based on the representations made by Seck “that she worked
7 The same can be said for the October 29, 2019 stipulation
wherein the parties agreed that Seck would pay specified percentages
for a list of certain cases that she took with her after leaving the
Cochran Firm. The firm does not dispute the enforceability of this
separate fee sharing agreement.
12
on these cases in some capacity.” Thus, the specific amount
of time that Seck spent on the Reddick matter or any of the
other cases listed in the MOU does not render the fee
sharing agreement unenforceable.
Therefore, the Cochran Firm has failed to demonstrate
the trial court erred in granting Seck’s motion for summary
judgment.8
8 At oral argument, the Cochran Firm argued for the first time
that the trial court erred in dismissing its declaratory relief action as
moot. By raising this argument for the first time at oral argument, the
Cochran Firm has forfeited the issue. (Daniels v. Select Portfolio
Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1185 [“‘[w]e will not
consider an issue not mentioned in the briefs and raised for the first
time at oral argument’”], disapproved on another ground in Sheen v.
Wells Fargo Bank, N.A. (2022) 12 Cal.4th 905, 948, fn. 12; Haight
Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184
Cal.App.4th 1539, 1554, fn. 9 [same].)
13
DISPOSITION
The judgment is affirmed. Seck and Seck Law, P.C.
are awarded costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MORI, J.
We concur:
CURREY, Acting P.J.
ZUKIN, J. *
* Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to Article VI, section 6, of the California Constitution.
14