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19STCV37573

Assigned for all purposes to: Stanley Mosk Courthouse, Judicial Officer: David Sotelo

Electronically FILED by Superior Court of California, County of Los Angeles on 10/18/2019 05:51 PM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Barel,Deputy Clerk

BRYAN J. FREEDMAN (SBN 151990)


bfreedman(a)ftllo.com
2 SEAN M. HARDY (SBN 266446)
smhardv(a)ftllo.com
3 FREEDMAN+ TAITELMAN, LLP
1901 Avenue ofthe Stars, Suite 500
4 Los Angeles, California 90067
Tel.: (310) 201-0005
5 Fax: (31 0) 201-0045

6 Attorneys for Plaintiff Ellen Rakieten

7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
COUNTY OF LOS ANGELES
9

10
ELLEN RAKIETEN, an individual, Case No.:
11
Plaintiff~
12 COMPLAINT FOR:
v.
13
1. BREACH OF FIDUCIARY DUTY;
TARA SENIOR, an individual; DEL SHAW 2. LEGAL MALPRACTICE;
14
MOONVES TANAKA FINKELSTEIN & 3. VIOLATIONS OF BUSINESS AND
15 LEZCANO, A LAW CORPORATION, a PROFESSIONS CODE SECTION 17200,
California corporation; and DOES 1 through ETSEQ.;
16 10, inclusive, 4. DECLAIMTORY .JUDGMENT

17 Defendants.
DEMAND FOR JURY TRIAL
18

19

20 Plaintiff ELLEN RAKIETEN (hereinafter sometimes referred to as "Plaintiff' or "Ms.

21 Rakieten") hereby brings the following causes of action against Defendants TARA SENIOR

22 ("Senior"), DEL SHAW MOONVES TANAKA FINKELSTEIN & LEZCANO, A LAW

23 CORPORATION ("Del Shaw"), and DOES 1 through 10, and each of them (collectively

24 "Defendants"), with knowledge as to herself and otherwise on information and belief~ claims and

25 alleges as follows:

26 INTRODUCTION
27 1. This action concerns one of the most egregious violations of the attorney-client

28 relationship imaginable: an attorney who took advantage of her client's trust and confidence, used

1
COMPLAINT
that trust to benefit herself and a new client, and eventually dropped her original client like a "hot

2 potato." Ms. Rakieten is a successful producer in the entertainment industry. Like other successful

3 executives in the entertainment industry, Ms. Rakieten trusted and relied on Defendants, as her

4 attorneys, to handle her legal affairs competently and ethically. Shockingly, Defendants conducted

5 themselves in the exact opposite manner: enriching themselves to Ms. Rakieten's detriment.

6 2. Among other things, Defendants engaged in self-dealing and pursued and undertook

7 transactions in the face of undisclosed conf1icts of interest for their own financial benefit and against

8 Ms. Rakieten's best interests. Defendants knowingly, recklessly, and/or negligently failed to obtain

9 Ms. Rakieten's informed, written consent before undertaking the concurrent representation of Very

10 Tall Productions, LLC ("VTP") an entity dominated and controlled by LAMF, LLC ("LAMF"), a

11 production company run by multimillionaire financiers Jeffrey Soros and Simon Horsman. A

12 conf1ict of interest existed between Ms. Rakieten, on one hand, and VTP and LAMF, on the other

13 hand. As Ms. Rakieten's attorneys, Defendants were acutely aware of this conf1ict of interest, as

14 they had negotiated her various agreements with VTP/LAMF. Ms. Rakieten continuously confided

15 in Defendants with respect to her various concerns and issues with VTP/LAMF, especially

16 concerning her ownership rights in the web television series Red Table Talk, which Defendants
17 repeatedly assured Ms. Rakieten were fully secured by her agreements with VTP/LAMF.

18 Nevertheless, even though Ms. Rakieten was their existing client, Defendants actively solicited

19 VTP/LAMF as a new client. Defendants' desire to secure a new, deep-pocketed client in

20 VTP/LAMF overshadowed their existing fiduciary obligations to their current client, Ms. Rakieten.

21 3. Once Defendants improperly engaged VTP/LAMF as their new client, they

22 committed underhanded and self-dealing actions to the detriment of Ms. Rakieten. Among other

23 things, Defendants negotiated and structured several deals with third parties on terms that were

24 favorable to VTP/LAMF but detrimental to Ms. Rakieten. Defendants falsely assured Ms. Rakieten

25 that this was not the case, and that her rights remained protected. Eventually, Defendants no longer

26 had any use for Ms. Rakieten, given their highly-profitable attorney-client relationship with

27 VTP/LAMF. After Ms. Rakieten confided in Defendants for their advice on her latest dispute with

28 VTP/LAMF, Defendants first admitted that a conf1ict existed in their concurrent representation, and

2
COMPLAINT
later unceremoniously dropped Ms. Rakieten as a client a direct violation of California's ''hot

2 potato" rule. To add insult to injury, Defendants continued to represent VTP/LAMF, and undertook

3 numerous actions designed to interfere with various television projects produced by Ms. Rakieten,

4 causing her continued economic injury.

5 4. Despite Defendants' undeserved reputation as diligent and detail-oriented lawyers,

6 they did, 111 fact, fail to enter into any written fee agreement with Ms. Rakieten, as expressly

7 required by California law. Nevertheless, Defendants continued to pocket fees from Ms. Rakieten,

8 ranging from flat fees to contingent fees based on Ms. Rakieten's variable income. This was a

9 blatant violation of California law.

10 5. Based on their legal and ethical obligations to Ms. Rakieten, Defendants should have

11 placed her interests first and foremost and sought to safeguard her legal and financial rights.

12 However, due to Defendants' outrageous actions, Ms. Rakieten is now forced to seek restitution

13 from the very lawyers who were supposed to have protected her rights. Defendants' flagrant

14 breaches of fiduciary duties, unlawful fee arrangements, unauthorized conflicts of interest, self-

15 dealing, and violations of California law have caused Ms. Rakieten severe financial harm. By this

16 action, Ms. Rakieten seeks redress for the economic injury caused by Defendants' actions.

17 PARTIES
18 6. Plaintiff Rakieten is, and at all times relevant was, an individual residing in the

19 County of Los Angeles, State of California.

20 7. Defendant Del Shaw is, and at all relevant times was, a California corporation with

21 its principal place of business in Los Angeles, County of Los Angeles, State of California. Plaintiff

22 is informed and believes, on that basis alleges, that Del Shaw does business in the County of Los

23 Angeles. Del Shaw is a law firm that provides, among other services, legal advice to clients in the

24 entertainment industry.

25 8. Defendant Senior is, and at all times relevant was, an individual residing in the

26 County of Los Angeles, State of California. Senior was and is a partner at the Del Shaw law firm.

27 At all relevant times, Senior was a member in good standing of the State Bar of California and

28 engaged in, and held herself as being engaged in, the practice of law in California.
9. The wrongful acts by the Defendants Senior and Del Shaw (collectively,

2 "Defendants"), and each of them, alleged herein occurred in the County of Los Angeles, State of

3 California.

4 10. Plaintiff is informed and believes that all Defendants were acting at all relevant times

5 as the authorized agents and/or employees and/or joint venturers and/or co-conspirators of all other

6 Defendants, with the full knowledge of each Defendants acts and omissions, as alleged herein, and

7 that each Defendant ratified each and every act and/or omission of each and every other Defendant,

8 as alleged herein.

9 11. Plaintiff is currently unaware of additional persons or entities that might be legally

10 responsible in some manner for the acts and/or omissions and the damages alleged or other relief

11 sought herein. Should Plaintiff later discover information that suggests others are responsible in

12 some manner for the acts and omissions described herein, and/or the damages or other relief sought

13 herein, Plaintiff will amend this Complaint to add any and all such Defendants, who are designated

14 at this time only as Does 1 through 10, inclusive.

15 FIRST CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY

16 (BY PLAINTIFF AGAINST SENIOR, DEL SHAW, AND DOES 1 THROUGH 10)
17 12. Plaintiff re-allege herein by this reference each and every allegation contained in

18 paragraphs 1 through 11, inclusive, of this Complaint as if set forth fully herein.

19 13. At all times relevant herein, Plaintiff relied on Defendants for advice and counsel

20 regarding all aspects of Plaintiff's business and career, including without limitation the negotiation

21 of all contracts with third parties. Defendants were obligated by the attorney-client relationship to

22 fully, fairly, and competently represent Plaintiff in all respects. At all times relevant herein,

23 Plaintiff was advised by Defendants and believed that she could rely on Defendants and trust

24 Defendants' decisions.
25 14. At all times during the period of Defendants' representation of PlaintifJ~ the most

26 confidential, fiduciary duty existed among them. Defendants were obligated by the attorney-client

27 fiduciary relationship to deal fairly, justly and honestly with Plaintiff, to be loyal to her, and to

28 place Plaintiffs interests before their own. 'T'he duty of honesty required Defendants to not only
avoid making untrue or misleading statements to Plaintiff, but to disclose all information reasonably

2 necessary for Plaintiff to make informed decisions. The fiduciary and confidential relationship was

3 never repudiated by Defendants at any time herein mentioned.

4 15. Defendants were further bound by the Rules of Professional Conduct, 1 as well as the

5 Business and Professions Code statutes regulating and controlling the conduct of attorneys.

6 Specifically, Defendants were bound by Rule 1.5(a) of the California Rules of Professional

7 Conduct, which prohibit a member of the California Bar to "enter into an agreement for, charge, or

8 collect and illegal or unconscionable fee." Defendants were further bound by Rule 1.4(a)(3) of the

9 California Rules of Professional Conduct, and were required to keep Plaintiff "reasonably informed

10 about significant developments relating to the representation[.]"

11 16. Defendants were further bound by Rule 1.8.1 of the California Rules of Professional

12 Responsibility, which provides:

13 A member shall not enter into a business transaction with a client; or knowingly

14 acquire an ownership, possessory, security, or other pecuniary interest adverse to a

15 client, unless each of the following requirements has been satisfied:

16 (a) The transaction or acquisition and its terms are fair and reasonable to the client

17 and are fully disclosed and transmitted in writing to the client in a manner which

18 should reasonably have been understood by the client; and

19 (b) The client is advised in writing that the client may seek the advice of an

20 independent lawyer of the client's choice and is given a reasonable opportunity to


21 seek that advice; and

22 (c) The client thereafter consents in writing to the terms of the transaction or the

23 terms ofthe acquisition.

24 17. Defendants were further bound by Rule 3-31 O(C)( 1) of the California Rules of

25 Professional Conduct, which provides that an attorney shall not, without the informed written
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1
27 Defendants were bound by the Rules of Professional Conduct in effect during their representation
of Ms. Rakieten, which are referenced herein. The Rules of Professional Conduct have
28 subsequently been revised and renumbered.
consent of each client, represent "more than one client in a matter in which the interests of the

2 clients potentially conflict[.]"

3 18. Defendants were further bound by Rule 3-31 O(C)(2) of the California Rules of

4 Professional Conduct, which provides that an attorney shall not, without the informed written

5 consent of each client, represent "more than one client in a matter in which the interests of the

6 clients actually conflict[.]"

7 19. Defendants were further bound by Rule 3-31 O(C)(3) of the California Rules of

8 Professional Conduct, which provides that an attorney shall not, without the informed written

9 consent of each client, represent "a client in a matter and at the same time in a separate matter

10 accept as a client a person or entity whose interest in the first matter is adverse to the client in the

11 first matter."

12 20. Defendants were further bound by Rule 3-31 O(E) of the California Rules of

13 Professional Conduct, which provides that an attorney shall not, without the informed written

14 consent of the client "accept employment adverse to the client or former client where, by reason of

15 the representation of the client or former client, the member has obtained confidential information

16 material to the employment."

17 21. Defendants, and each of them, breached their fiduciary duties and obligations to

18 Plaintiff by doing all of the acts and omissions and herein alleged. Among other things, Defendants

19 breached their fiduciary duties to Plaintiff by: (a) failing to disclose or obtain informed written

20 consent to coni1icts of interest in violation of California Rule of Professional Conduct 3-31 O(C); (b)

21 breaching their duties of care, communication, good faith, and loyalty, in failing to keep PlaintifT

22 reasonably apprised of material information regarding aspects of Defendants' representation of

23 PlaintifT, including without limitation PlaintifT's finances, business affairs, and her relationship with

24 VTP and LAMF; (c) breaching their duties of care, good faith, and loyalty, in failing to properly

25 advise Plaintiff regarding transactions in which Defendants were involved and which were not in

26 Plaintiff's best interests; (d) entering into an unfair and unconscionable business transaction with

27 Plaintiff in violation of California Rule of Professional Conduct 3-300; (e) taking contingent fees

28 tied to Plaintiff's variable income without a written contingency agreement in violation of Business
and Professions Code section 614 7; (f) taking fees from Plaintiff without any written agreement in

2 violation of Business and Professions Code section 6148; (g) accepting employment adverse to

3 Plaintiti when Defendants had obtained confidential information material to the employment,

4 without Plaintiff's informed, written consent, in violation of California Rule of Professional

5 Conduct 3-31 O(E); and (h) charging unconscionable fees.

6 22. In doing all of the above described acts and omissions, Defendants, and each of

7 them, repeatedly and intentionally put their own financial interests ahead of the interests of

8 Plaintiff, their client.

9 23. As a direct and proximate result of the aforesaid acts and omissions of Defendants,

10 constituting Defendants' breach of their fiduciary duties to Plaintiff, Plaintifi has suffered damages,

11 all in amounts according to proof and in excess of the minimum jurisdiction of this Court. Plaintiff

12 is also entitled to disgorgement of all sums paid to Defendants while these breaches of duty

13 occurred.

14 24. Defendants performed the foregoing wrongful acts, conduct, and omissiOns

15 intentionally, fraudulently, maliciously, and oppressively in willful and conscious disregard of

16 Plaintiff's rights and with the intent and design to damage Plaintiff. As a partner of Del Shaw,

17 Senior knew about, authorized, ratified, and perpetuated the foregoing wanton and willful

18 misconduct against Plaintiff. By reason thereof~ Plaintiff is entitled to recover punitive damages in

19 an amount to be determined at the time of trial.

20 SECOND CAUSE OF ACTION FOR LEGAL MALPRACTICE


21 (BY PLAINTIFF AGAINST SENIOR, DEL SHAW, AND DOES 1 THROUGH 10)
22 25. Plaintifi re-alleges herein by this reference each and every allegation contained in

23 paragraphs 1 through 24, inclusive, of this Complaint as if set forth fully herein.

24 26. Defendants agreed to, and did in fact, act as Plaintiff's attorneys continuously from

25 in and around March 2017 through in and around October 2018.

26 27. At all times relevant herein, Plaintiff relied on Defendants for advice and counsel

27 regarding all aspects of Plaintiff's business. Defendants were obligated by the attorney-client

28 relationship to fully, fairly, and competently represent Plaintiti in all respects. At all times relevant

7
herein, Plaintiff was advised by Defendants and believed that she could rely on Defendants and

2 trust Defendants' decisions.

3 28. At all times during the period of Defendants' representation of PlaintiiT, the most

4 confidential, fiduciary duty existed among them. Defendants were obligated by the attorney-client

5 fiduciary relationship to deal fairly, justly and honestly with Plaintiff~ to be loyal to her, and to

6 place Plaintiffs interests before their own. The duty of honesty required Defendants to not only

7 avoid making untrue or misleading statements to Plaintiff, but to disclose all information reasonably

8 necessary for Plaintiff to make informed decisions.

9 29. Defendants, and each of them, had a duty to use such skill, prudence, and diligence

10 as members of the legal profession commonly possess and exercise, in providing legal services to

11 Plaintiff herein.

12 30. Specifically, among other duties, California, and the Rules of Professional Conduct,

13 required Defendants to: ( 1) discharge their responsibilities competently and with integrity,

14 objectivity, loyalty, f1delity, due professional care, and a genuine interest in serving their client;

15 remain free of conflicts of interest; (3) oiler written disclosure concerning, and obtain informed

16 written consent to, any potential or actual conflict of interest; ( 4) provide full, frank, candid, and

17 unbiased advice to their clients; (5) provide all information to their clients that is material to the

18 representation; (6) enter into a written agreement with Plaintiff that conformed with the

19 requirements of California law; and (7) perform their professional services with reasonable skill,
20 competence, and diligence, putting the best interests of Plaintiff before their own self-interests.

21 31. Defendants were further bound by the Rules of Professional Conduct, as well as the
22 Business and Professions Code statutes regulating and controlling the conduct of attorneys.

23 Specifically, Defendants were bound by Rule 4-200 of the California Rules of Professional

24 Conduct, which prohibit a member of the California Bar to "enter into an agreement for, charge, or

25 collect and illegal or unconscionable fee." Defendants were further bound by Rule 3-500 of the

26 California Rules of Professional Conduct, and were required to keep Plaintiff "reasonably informed
27 about significant developments relating to the employment or representation[.]"

28 32. Defendants were further bound by Rule 3-300 of the California Rules of Professional
Responsibility, which provides:

2 A member shall not enter into a business transaction with a client; or knowingly

3 acquire an ownership, possessory, security, or other pecuniary interest adverse to a

4 client, unless each of the following requirements has been satisfied:

5 (A) The transaction or acquisition and its terms are fair and reasonable to the client

6 and are fully disclosed and transmitted in writing to the client in a manner which

7 should reasonably have been understood by the client; and

8 (B) The client is advised in writing that the client may seek the advice of an

9 independent lawyer of the client's choice and is given a reasonable opportunity to

10 seek that advice; and

11 (C) The client thereafter consents in writing to the terms of the transaction or the

12 terms of the acquisition.

13 33. Defendants were further bound by Rule 3-31 O(C)(3) of the California Rules of

14 Professional Conduct, which provides that an attorney shall not, without the informed written

15 consent of each client, "a client in a matter and at the same time in a separate matter accept as a

16 client a person or entity whose interest in the first matter is adverse to the client in the first matter."

17 34. During the course of Defendants' representation of Plaintiff~ the conduct of

18 Defendants fell below the applicable standards of professional care, competence, prudence, and

19 skill commonly possessed and exercised by attorneys under similar circumstances in similar

20 communities.

21 3 5. Defendants, and each of them, failed to exercise reasonable care and skill in their

22 representation of Plaintiff by negligently and carelessly doing all of the acts and omissions and

23 herein alleged. Among other things, Defendants failed to exercise reasonable care and skills and

24 were negligent in: (a) failing to adequately disclose, or obtain informed written consent to, conf1icts

25 of interest, in violation of California Rule of Professional Conduct 3-31 0; (b) failing to keep

26 Plaintiff reasonably informed of material information regarding aspects of Defendants'

27 representation of Plaintiff, including without limitation Plaintiff's finances, business affairs, and her

28 relationship with VTP and LAMF; (b) failing to reasonably advise Plaintiff regarding transactions
in which Defendants were involved, which were objectively unreasonable, and which were not in

2 Plaintiffs best interests; (c) entering into an unfair and unconscionable business transaction with

3 Plaintiff in violation of California Rule of Professional Conduct 3-300; (d) taking contingent fees

4 tied to Plaintiffs variable income without a written contingency agreement in violation of Business

5 and Professions Code section 6147; (e) taking fees from Plaintiff without any written agreement in

6 violation of Business and Professions Code section 6148; (f) accepting employment adverse to

7 Plaintiff when Defendants had obtained confidential information material to the employment,

8 without Plaintiffs informed, written consent, in violation of California Rule of Professional

9 Conduct 3-31 O(E); and (g) wrongly and incompetently placing the interests of VTP above the

10 interests of Plaintiff.

11 36. In doing all of the above described acts and omissions, Defendants, and each of

12 them, repeatedly and intentionally put their own financial interests ahead of the interests of

13 Plainti£1: their client.

14 3 7. The statutory violations described herein further constitute professional negligence

15 per se, as they show Defendants violated the standard of care set forth by California statutes

16 intended to govern lawyers' obligations to their clients.

17 38. As a direct and proximate result of the aforesaid negligent and/or intentional acts and

18 omissions of Defendants, Plaintiff has suffered damages, all in amounts according to proof and in

19 excess of the minimum jurisdiction of this Court.

20 THIRD CAUSE OF ACTION FOR UNFAIR BUSINESS PRACTICES IN


21 VIOLATION OF BUSINESS AND PROFESSIONS CODE §§17200 ET SEQ.
22 (BY PLAINTIFF AGAINST SENIOR, DEL SHAW, AND DOES 1 THROUGH 10)
23 3 9. Plaintiff reallege and incorporate herein by reference the allegations contained in

24 paragraphs 1 through 38, inclusive, with the same force and effect as though fully set forth herein.

25 40. California's Unfair Competition Law ("UCL"), Business and Professions Code §§

26 17200, et seq., provides that unfair competition shall include any unlawful, unfair, or fraudulent

27 business act or practice.

28
41. California Business and Professions Code § 614 7 requires all contingency fee
2 arrangements with attorneys to be documented in a written agreement, which must further contain a

3 host of statutorily mandated disclosures. In the absence of a writing that complies with the

4 requirements of§ 6147, a contingency fee arrangement with an attorney is voidable at the client's
5 elections. See Cal. Bus. & Prof. Code§ 6147(b).

6 42. At all relevant times, Defendants were acting as PlaintifT's attorneys. Throughout the

7 course of Defendants' relationship with Plaintiff, they provided legal advice and services including,

8 among other things, drafting and revising corporate documents and negotiating and reviewing

9 various contracts related to PlaintifT's business affairs. In connection with the foregoing,
10 Defendants were paid contingent fees tied to Plaintiff's variable earnings during the course of their
11 relationship.

12 43. Despite collecting such contingent consideration over the course of their relationship

13 with Defendants, Defendants had no statutorily prescribed, written agreement with Plaintiff for the
14 provision of legal services.

15 44. The purported fee arrangement between Defendants, on the one hand, and Plaintiff,

16 on the other hand, did not conform with the requirements of California Business and Professions
17 Code § 6147, and therefore violated the statute. As a result, pursuant to California Business and

18 Professions Code § 6147(b), any purported fee arrangement is voidable at the option of Plaintiffs.
19 Plaintiffs are further entitled to restitution of all fees paid to Defendants.

20 45. California Business and Professions Code § 6148 requires fee arrangements with
21 attorneys that do not fall within § 6147 to be documented in a written agreement, which must
22 contain a host of mandated disclosures, so long as it is reasonably foreseeable that the expenses to

23 be incurred will exceed one thousand dollars. In the absence of a writing that complies with the

24 requirements of§ 6148, a fee arrangement is voidable at the client's election. See Cal. Bus. & Prof.
25 Code§ 6148(c).
26 46. At all relevant times, Defendants, on the one hand, and Plaintif1~ on the other hand,
27 were in an attorney-client relationship. At all relevant times, it was reasonably foreseeable that the

28 total expense to the client, including attorney fees, would exceed one thousand dollars.
47. Defendants bad not written agreement with Plaintiff for the provision of legal

2 serv1ces. To the extent any aspect of the purported fee arrangement between Plaintiff and

3 Defendants does not fall under California Business and Professions Code § 614 7, Defendants'

4 purported fee arrangement with Plaintiff was subject to, and violated, the requirements of California

5 Business and Professions Code § 6148. As a result, any purported fee arrangement is voidable at

6 the option of Plaintiff, and Plaintifi is entitled to restitution of all fees paid to Defendants.

7 48. The aforementioned acts and practices of Defendants as set forth above constitute

8 unfair, unlawful, wrongful and fraudulent business practices in violation of the UCL, Business and

9 Professions Code §§ 17200, et seq.

10 49. Defendants' acts and practices are unlawful and unfair in that they violate, among

11 other statutes, California Business and Professions Code § 614 7 and California Business and

12 Professions Code§ 6148.

13 50. In addition, Defendants' acts and practices as set forth herein are also unlawful and

14 unfair in that they violated several Rules of Professional Conduct, including without limitation: (a)

15 California Rule of Professional Conduct 3-300, which requires that "[a] member shall not enter into

16 a business transaction with a client ... unless .. the transaction ... and its terms are ... fully

17 disclosed and transmitted in writing to the client ... unless ... the transaction ... and its terms are .

18 .. fully disclosed and transmitted in writing to the client," (b) California Rule of Professional

19 Conduct 3-310, which prohibits representations imbued with conflicts of interest, and (c) California

20 Rule of Professional Conduct 3-500, which requires that "[a] member shall keep a client reasonably

21 informed about significant developments relating to the employment or representation."

22 51. The California Rules of Professional Conduct constitute a legislative expression of

23 the public policy of California. The violation of public policies central to the attorney-client

24 relationship render any agreement unenforceable and entitles the injured party to restitution of fees

25 paid. A cause of action under the UCL may be predicated on a violation of the California Rules of

26 Professional Conduct. See People ex rel. Herrera v. Stender (20 12) 212 Cal.App.4th 614, 632.

27 52. As described herein, Defendants violated the law and public policy of California by

28 creating, obscuring, and profiting from, unauthorized and undisclosed conflicts of interest through
self-dealing and failing to disclose material facts to their client related to their representation of

2 Plaintiff. This constitutes a separate violation of the UCL.

3 53. Fllliher, Defendants' acts and practices as set forth herein include, without limitation,

4 breaches of fiduciary duties and legal malpractice. These actions also constitute unlawful, unfair,

5 and fraudulent business acts and practices under the UCL because such acts are unscrupulous,

6 unethical, unfair, and injurious to Plaintiff. This constitutes a separate violation of the UCL.

7 54. As a direct and proximate result of Defendants' unfair business practices, as set forth

8 herein, Plaintiff has lost money or property as a result of Defendants' multiple violations of the

9 UCL, and has suffered, and will continue to suffer injury in an amount to be proven at trial.
10 55. Plaintiff seeks restitution of all amounts wrongfully obtained by Defendants as a
11 result of the aforementioned conduct.

12 56. Plaintiff is informed and believes that Defendants have engaged, and are continuing

13 to engage, in unfair competition as prohibited by California Business and Professions Code §§

14 17200, et seq., including without limitation engaging in the aforementioned acts and practices which

15 are patently unfair, fraudulent, unlawful, substantially injurious to the general public, and offensive
16 to public policy.

17 57. As a direct and proximate result of Defendants actions, Plaintiff is entitled to

18 injunctive relief against Defendants and all those in concert with them to enjoin the aforementioned

19 conduct, and for restitution according to proof.

20 FOURTH CAUSE OF ACTION FOR DECLARATORY RELIEF


21 (BY PLAINTIFF AGAINST SENIOR, DEL SHAW, AND DOES 1 THROUGH 10)
22 58. Plaintifi reallege and incorporate herein by reference the allegations contained in

23 paragraphs 1 through 57, inclusive, with the same force and effect as though fully set forth herein.

24 59. An actual controversy relating to the legal rights and duties of the parties exists as to:

25 (a) whether, through Defendants' self-dealing; conflicts of interest; failure to disclose material facts;

26 breaches of their duties of skill, prudence, and diligence; and failure to comply with California law

27 which requires fee arrangements of the type here to be in writing, Defendants violated California

28 law, the California Rules of Professional Conduct, and California's public policy, rendering any
purported fee arrangement between Defendants and Plaintiff invalid, void, and unenforceable, and

2 entitling plaintiff to disgorgement of all fees paid to Defendants; and (b) whether, under California

3 Business and Professions Code§§ 6147-48, based on their failure to obtain a written agreement with

4 Plaintiff and their pervasive and egregious ethical violations, Defendants are entitled to disgorge all

5 fees they collected from Plaintiff

6 60. Accordingly, Plaintiff seeks a declaration that any purported fee arrangement

7 between her and Defendants is invalid, void, and unenforceable, that she is entitled to disgorgement

8 and restitution of all fees paid to Defendants, based on Defendants' violations of California

9 Business and Professions Code §§ 6147-48, the UCL, other violations of California law, and

10 violations of the California Rules of Professional conduct.

11
12 WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as set

13 forth below:

14 1. For compensatory damages according to proof;

15 2. For a judgment declaring that any purported fee arrangement between Plaintiff and
16 Defendants is invalid, void, and unenforceable;

17 3. For a judgment returning to Plaintiff all funds collected by Defendants purported to

18 any purported fee arrangement by which Defendants obtained funds belonging to Plaintiff~ in an

19 amount subject to proof as trial;

20 4. For exemplary and/or punitive damages as permitted by law;


21 5. For a constructive trust for the use and benefit of Plaintiff for all monies received by
22 Defendants, and each of them, by reason of their wrongful conduct;

23 6. For an order that Defendants, and each of them, turn over to Plaintiff all proceeds

24 derived from their wrongful conduct;

25 7. For attorney's fees as permitted;

26 8. For cost of suit herein;

27 9. For interest at the legal rate provided by law;


28
10. For such other and further relief as the court may deem just and proper.
2

3 FREE~·~l'\l,AITELMAN, LLP
/~ /
4 /" I #'"'/ ..

5 Dated: October 18, 2019


6 Br an J. Freedman, Esq.
S an M. Hardy, Esq.
7 ttorneys.for Plaintifj'Ellen Rakieten
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DEMAND FOR JURY TRIAL

2 Plaintiff demands a trial by jury of all issues so triable in this action.


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4 LLP
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Dated: October 18, 2019
7 J. Freedman, Esq.
M. Hardy, Esq.
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Attorneys.for Plaint[fj'Ellen Rakieten
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