Keshen v. Buffington CA4/3
G058680
| Cal. Ct. App. | Jul 21, 2021Background
- In 2013 Keshen sued her former business partner (Tallen); she retained Buffington Law in Sept. 2014 to defend her in that litigation. Keshen’s father paid Buffington’s invoices without Buffington obtaining Keshen’s informed written consent as required by former Rule 3-310(F).
- A court-appointed receiver reported Keshen had received greater distributions than Tallen; Buffington commissioned SingerLewak, which found substantially larger distributions by Tallen. The parties mediated and signed a settlement stipulation in Jan. 2016; Keshen later contested the written agreement and the matter proceeded to arbitration, which enforced the mediated agreement.
- Keshen sued Buffington (Mar. 2017) for legal malpractice, fiduciary and related claims based on Buffington’s mediation- and settlement-related conduct. Buffington filed a cross-complaint seeking unpaid fees (quantum meruit, breach of contract, book account).
- Buffington moved for summary judgment on Keshen’s malpractice complaint asserting the mediation confidentiality privilege (Evid. Code §1119). The trial court granted summary judgment and also ordered Keshen to post an undertaking under Code Civ. Proc. §1030 (which she never posted); the complaint was later dismissed for failure to post the undertaking.
- Prior to trial on the cross-complaint, Buffington obtained deemed admissions from Keshen for failure to timely respond to RFAs. At a bench trial on the cross-complaint the court awarded Buffington $90,622 in quantum meruit. Keshen appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mediation privilege bars Keshen’s malpractice claims | Keshen: claims arise from pre-mediation and non-confidential conduct; privilege should not bar her malpractice suit | Buffington: malpractice claims are based on mediation-related communications and are therefore protected by Evid. Code §1119 (Cassel) | Court: Granted summary judgment for Buffington; mediation privilege (Cassel) bars use of mediation-related communications to prove malpractice |
| Whether trial court erred denying leave to amend complaint after MSJ | Keshen: needed to amend to assert different causes of action in response to MSJ | Buffington: amendment was tardy and prejudicial, a moving-target after MSJ | Held: Denial affirmed—plaintiff unreasonably delayed and amendment would not cure the mediation-privilege problem |
| Whether requiring an undertaking under Code Civ. Proc. §1030 and dismissing for failure to post was improper | Keshen: she was a California resident and retainer void so undertaking was improper | Buffington: evidence supported nonresident finding and §1030 relief; undertaking ordered only for costs, not fees | Held: Order for undertaking and dismissal for failure to post affirmed (court found more likely nonresident; failure to post moot as MSJ already granted) |
| Whether Buffington could recover quantum meruit despite violating former Rule 3-310(F) | Keshen: violation of Rule 3-310 voids retainer and bars recovery; fees must be forfeited | Buffington: even if disclosure rule breached, equity may permit quantum meruit recovery for value of services rendered | Held: Trial court did not abuse discretion awarding quantum meruit; violation did not show harm and forfeiture of all fees was not mandatory (court applies Sheppard Mullin principles) |
Key Cases Cited
- Cassel v. Superior Court, 51 Cal.4th 113 (Cal. 2011) (mediation confidentiality extends to communications made for the purpose of mediation)
- Sheppard, Mullin, Richter & Hampton, LLP v. J-M Mfg. Co., Inc., 6 Cal.5th 59 (Cal. 2018) (trial court discretion to fashion equitable fee remedy where ethics rules violated)
- Wimsatt v. Superior Court, 152 Cal.App.4th 137 (Cal. Ct. App. 2007) (mediation statute bars evidence that would not exist but for mediation communications)
- Fair v. Bakhtiari, 195 Cal.App.4th 1135 (Cal. Ct. App. 2011) (serious fiduciary breach may justify denying fee recovery; forfeiture is fact-dependent)
- Viner v. Sweet, 30 Cal.4th 1232 (Cal. 2003) (causation in malpractice requires proof that but for attorney negligence the client would have obtained a better result)
- Oasis West Realty, LLC v. Goldman, 51 Cal.4th 811 (Cal. 2011) (malpractice causation principles)