1 GREGORY G. SNARR, Bar No.

267217
gregory.snarr@bbklaw.com
2 BEST BEST & KRIEGER LLP
3390 University Avenue, 5th Floor
3 P.O. Box 1028
Riverside, California 92502
4 Telephone: (951) 686-1450
Facsimile: (951) 686-3083
5
Attorneys for Plaintiffs
6 JEFFREY S. NELSON, SHARON J. NELSON and
NPG, INC.
7

9 SUPERIOR COURT OF THE STATE OF CALIFORNIA

10 COUNTY OF RIVERSIDE
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JEFFREY S. NELSON, an individual, Case No. RIC 1821708
12 SHARON J. NELSON, an individual, and
NPG, INC., a California corporation, PLAINTIFFS’ OPPOSITION TO
13 DEFENDANT’S MOTION FOR
Plaintiffs, ATTORNEYS’ FEES
14
v. Date: September 15, 2020
15 Time: 8:30 a.m.
THE GREEN LAW GROUP, LLP, a Dept: 10
16 California limited partnership;
TODD WOLFE, an individual, and
17 DOES 1 through 50, inclusive,

18 Defendants.
Complaint Filed: October 22, 2018
19 Trial Date: None

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29934.00018\33232312.1
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR ATTORNEYS’ FEES
 1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION
3
The Green Law Group, LLP (“Defendant”) brings a motion for attorney fees pursuant to
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Civil Code section 1717 (“Section 1717”) based upon untenable legal principles. First, Plaintiffs’
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only causes of action are tort causes of action for professional negligence and contribution – they
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are in no way connected to or based on any contract whatsoever. Thus, because Plaintiffs’ did not
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bring suit on a contract and did not seek to enforce a contract, Section 1717 provides no basis for
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an award of attorney fees. (See e.g., Loube v. Loube, 64 Cal. App. 4th 421, 428 – 30) (“Here . . .
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appellant's claim for legal negligence arose from the relationship between them . . . the cause of
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action sounded in tort and was no more ‘on the contract’ than a claim for breach of fiduciary duty
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BEST BEST & KRIEGER LLP

or for fraud involving a contract. It follows that Civil Code section 1717 provides no basis for an
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award of attorney fees.”) Clearly Plaintiffs’ negligence and contribution causes of action are torts
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and are not intertwined with or related to any claim for breach of contract; indeed, there is no
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claim for breach of contract in this case.
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Second, the purported contract that Defendants claim to be the basis of their motion has
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nothing to do with the negligence alleged by Plaintiffs. Specifically, Defendants attach to their
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Motion a retainer agreement, purportedly between Defendant and NPG for “transactional non-
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litigation corporate counsel services.” (“Transactional Retainer Agreement”) (See Exhibit A to
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Declaration of Scott Green). Plaintiffs did not complain against Defendant for anything related to
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such “transactional” work. Rather, Plaintiffs claim that Defendant was negligent in connection
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with the services it provided to them in connection with the litigation work from the case they
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filed on NPG’s behalf, known as NPG v. De La Rosa., RIC 1500512 (the “Civil Collection
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Action”). (Complaint ¶ 16) Defendant failed to produce or even reference any contract or retainer
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agreement for the litigation services that Defendant provided Plaintiffs in the Civil Collection
25
Action and which form the basis of their claims for professional negligence against Defendant.
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27 Third, even assuming the Plaintiffs had sued Defendant for breach of the Transactional

28 Retainer Agreement (which they did not), the Transactional Retainer Agreement is very limited to

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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR ATTORNEYS’ FEES
 1 the enforcement of a dispute regarding the fees Plaintiffs would owe Defendant for the

2 transactional services contemplated under the same. (Id. ¶ 13).

3 Finally, in the underlying action, Plaintiffs did not seek an unqualified request for attorney
4 fees. Rather, Plaintiffs’ qualified their prayer for relief for only for fees “if and allowed by law.”
5 (Complaint 24:13). As set forth herein, no such fees were or would be allowed by law and
6 neither Plaintiffs would be entitled to recover such fees had they prevailed, nor is Defendant
7 entitled to recover its fees as the current prevailing party.
8
Here, although the parties may have had a contractual relationship with regard to other
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“transactional work” not related to the instant action, Plaintiffs’ claim for legal negligence arose
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from the relationship between them in connection with litigation services in the Civil Collection
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Action and had nothing to do with the Transactional Retainer Agreement or any other written
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agreement known of. Plaintiffs’ causes of action are tort claims and nothing more. It follows that
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Civil Code section 1717 provides no basis for an award of attorney fees.
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II. ATTORNEY FEES ARE NOT ALLOWED IN TORT ACTIONS FOR
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PROFESSIONAL NEGLIGENCE/ CONTRIBUTION
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17 Civil Code section 1717 provides in part: “(a) In any action on a contract, where the

18 contract specifically provides that attorney's fees and costs, which are incurred to enforce that

19 contract, shall be awarded either to one of the parties or to the prevailing party, then the party
20 who is determined to be the party prevailing on the contract, whether he or she is the party

21 specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other

22 costs.” (Emphasis added) Here, Defendant does not show, much less allege, that Plaintiffs’

23 action was based “on a contract” or that Plaintiffs sought to “enforce” any contract.

24 Although ignored by Defendant, the seminal case dealing with this issue as it concerns an
25 attorney retainer agreement is Loube v. Loube, 64 Cal. App. 4th 421, 428–30 (1998). In Loube, a
26 real estate partnership hired attorneys to prosecute an action on their behalf, which legal services
27 the real estate partnership ultimately alleged was deficient/ negligent. (Loube, 64 Cal. App. 4th
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR ATTORNEYS’ FEES
 1 425). The real estate partnership sued their former attorneys for professional negligence, fraud,

2 and breach of contract by claiming that the retainer agreement was breached by the attorneys

3 charging “excessive fees.” (Loube, 64 Cal. App. 4th 425; 430-431) Their retainer agreement

4 essentially adopted the language of Section 1717, stating that “[I]f legal action or arbitration is

5 necessary to enforce the terms of this Agreement, the prevailing party shall recover reasonable

6 attorneys' fees.” (Id. at 429).

7 With regard to their claims for professional negligence, the Loube court unequivocally
8 prohibited the recovery of attorney fees for such tort actions. (Loube v. Loube, 64 Cal. App. 4th at
9 428–30 (“The question here is whether the attorney fee provision authorizes an award of fees
10 incurred in litigating appellants' claim of professional negligence.”) The Loube court answered
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this question by holding that a claim for professional negligence is not a suit “on the contract”
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within the meaning of Section 1717. (Loube v. Loube, 64 Cal. App. 4th at 428–30) The court
P.O. BOX 1028

13 reasoned that “legal malpractice is compounded of the same basic elements as other kinds of
14 actionable negligence: duty, breach of duty, causation, and damage.” (Id.) And, in analogous
15 cases for negligence, the Loube court noted that Section 1717 does not authorize an award of
16 attorney fees incurred in prosecuting negligence claims. (Id., citing Moallem v. Coldwell Banker
17 Com. Group (1994) 25 Cal.App.4th 1827 (holding that Section 1717 did not authorize an award
18 of attorney fees incurred in prosecuting a case against real estate agents for negligence and breach
19 of fiduciary duty in connection with a purchase of real estate.)
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Thus, the Loube court unequivocally prohibited the recovery of attorney fees for tort
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actions such as professional negligence. (Id. (“Here, although the parties had a contractual
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relationship, and appellant's claim for legal negligence arose from the relationship between them,
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which relationship was founded on a contract, the cause of action sounded in tort and was no
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more ‘on the contract’ than a claim for breach of fiduciary duty or for fraud involving a contract.
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It follows that Civil Code section 1717 provides no basis for an award of attorney fees.”)
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(emphasis added) Indeed, even with the existence of a cause of action seeking to enforce the
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terms of a retainer agreement, fees brought for legal malpractice are not recoverable. (Id. at 430
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR ATTORNEYS’ FEES
 1 (“The narrowly drawn attorney fee provision here, however, providing for the payment of fees for

2 an action brought to enforce the terms of the parties' agreement, cannot be read as a contractual

3 agreement to award fees in an action brought for legal malpractice.”) (emphasis added).

4 Here, Plaintiffs never even referenced any agreement in its Complaint, much less brought
5 an action on any such agreement. Indeed, it appears there was no written agreement between the
6 Parties regarding the litigation services for the work Defendant did for Plaintiffs in the Civil
7 Collection Action. Importantly, it is only the work Defendant provided to Plaintiffs in the Civil
8 Collection Action that Plaintiffs claimed were negligent. (See generally, Complaint) Thus,
9 under the holding of Loube and under the plain language of Section 1717, Defendant is not
10 entitled to an award of fees in connection with this action for the simple reason that Plaintiffs
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Complaint was not based “on a contract” and Plaintiffs did not seek to “enforce” any contract.
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III. PLAINTIFFS’ TORT CAUSES OF ACTION ARE NOT INTERTWINED WITH

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ANY CONTRACT CAUSE OF ACTION
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Defendant alleges that attorney fees are recoverable where a “tort action arises out of,
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relates to, is concerned with or in connection with a contract.” (Motion 6:20-21) Unfortunately
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for Defendant, this is absolutely incorrect. Rather, the recovery of attorney fees for tort causes of
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action are available only where a two-prong test applies: (1) there is at least one cause of action
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for breach of contract (assuming all other requirements under Section 1717 are met), and (2)
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where the tort causes of action are inextricably intertwined with the contract cause of action that
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is alleged. (See e.g., Siligo v. Castellucci (1994) 21 Cal.App.4th 873, 879) (apportionment of
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breach of contract fees and torts fees not necessary or where the two claims share common issues
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such that they are ‘inextricably intertwined’ making it ‘impracticable, if not impossible, to
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separate the multitude of conjoined activities into compensable or noncompensable time
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units.’”)(citations omitted).
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26 Again, where there is no “contract claim,” the first prong is not met and the recovery of

27 fees for torts is prohibited. Even the case law cited by Defendant provides no support for the

28 claim that it is entitled to recover its fees based on Plaintiffs’ tort causes of action. In fact,

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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR ATTORNEYS’ FEES
 1 Defendant’s authority is inapposite from the instant case because they all include cases where the

2 plaintiff alleged causes of action for breach of contract along with the tort causes of action

3 (Santisas v. Goodin, 17 Cal. 4th 599, 607 (1998) (involving a real estate purchase agreement);

4 Drybread v. Chipain Chiropractic Corp (unlawful detainment action); & Cruz v. Ayromloo, 155

5 Cal. App. 4th 1270, 1277 (2007) (action for beach of lease agreement). What’s more, these cases

6 actually support Plaintiffs’ position.

7 For example, the Santisas court concluded that the plaintiffs' action was “entirely outside
8 the scope of section 1717 [] because the action asserted only tort claims.” (Santisas v. Goodin, 17
9 Cal. 4th 599, 614–15.) Recognizing that the Santisas plaintiffs had framed their complaint as
10 including one claim denominated as “Breach of Contract,” the court nevertheless concluded that
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“[t]he 'breach of contract' count is actually a misnomer, since the alleged 'breach' is the failure to
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disclose certain defects in the property, a claim rooted exclusively in tort.” (Id.) Therefore, the
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13 Court conclusively established the inapplicability of Section 1717:

14 We agree with the Court of Appeal majority that this action is outside the ambit of
section 1717 insofar as it asserts tort claims. The operative language of section
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1717 states that it applies “[i]n any action on a contract, where the contract
16 specifically provides that attorney's fees and costs, which are incurred to enforce
that contract, shall be awarded either to one of the parties or to the prevailing
17 party ....” (§ 1717, subd. (a), italics added.) Consistent with this language, this
court has held that section 1717 applies only to actions that contain at least one
18 contract claim. (Stout v. Turney (1978) 22 Cal.3d 718, 730 [150 Cal.Rptr. 637,
19 586 P.2d 1228]; see also Moallem v. Coldwell Banker Com. Group, Inc. (1994) 25
Cal.App.4th 1827, 1832-1833 [31 Cal.Rptr.2d 253].) If an action asserts both
20 contract and tort or other noncontract claims, section 1717 applies only to
attorney fees incurred to litigate the contract claims. (Reynolds Metals Co. v.
21 Alperson, supra, 25 Cal.3d 124, 129-130.)
22 (Santisas v. Goodin, 17 Cal. 4th 599, 614–15).

23 It is unclear why Defendant would include this authority in its brief as it clearly does not
24 support the position it is trying to advance. Furthermore, none of the other authority cited by
25 Defendant provides any authority either. (Drybread v. Chipain Chiropractic Corp., 151 Cal.
26 App. 4th 1063, 1077 (2007), as modified (June 12, 2007) (“We conclude this unlawful detainer
27 action did not sound in contract, and therefore Civil Code section 1717 [] does not apply.”); Cruz
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR ATTORNEYS’ FEES
 1 v. Ayromloo, 155 Cal. App. 4th 1270, 1277 (2007) (“The underlying civil action encompassed

2 both breach of contract and tort causes of action arising from the tenants' leases with appellant.”)

3 As established by all relevant authority, attorney fees can only be awarded in tort claims
4 where (1) there was also a breach of contract action, and (2) where the tort claims are
5 “inextricably intertwined” with the breach of contract claim. Here, there is no contract claim so
6 Plaintiffs’ tort claims logically cannot be “inextricably intertwined” with a claim that never
7 existed.
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IV. THE TRANSACTIONAL RETAINER AGREEMENT AT ISSUE HAS NOTHING
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TO DO WITH THE LITIGATION SERVICES COMPLAINED OF AS BEING
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NEGLIGENT IN THIS ACTION

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Plaintiffs’ Complaint alleges that “Plaintiffs hired Defendants to advise Plaintiffs of their
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rights and duties in connection with the Criminal Restitution Orders.” (Complaint ¶ 16)
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Nowhere do Plaintiffs allege that they entered into a contract with Defendant. In fact, nowhere in
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the Complaint is there mention of the Transactional Retainer Agreement \ that is attached to the
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Defendant’s Motion or any other “retainer agreement.” (See generally, Complaint) Logically,
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therefore, it cannot be said that Plaintiffs are either suing on the Transactional Retainer
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Agreement, or that Plaintiffs claim that Defendant breached any such Agreement.
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19 In fact, the Retainer Agreement has nothing to do with the underlying action. Rather,
20 prior to anything related to the underlying action or even the facts related to the underlying action

21 including the negligence complained of, Plaintiffs are purported to have signed the Transactional

22 Retainer Agreement for “transactional non-litigation corporate counsel services,” relating to

23 Plaintiffs’ Corporate documents:

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28 (Declaration of Scott Green, Exhibit A, ¶ 2)

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29934.00018\33232312.1
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR ATTORNEYS’ FEES
 1 Defendants do not even allege, much less attach to their Motion, any contract or

2 agreement that actually relates to the litigation services provided in the Civil Collection Action,

3 which make up the basis for Plaintiffs’ professional negligence claims in the underlying action.

4 The fact that Defendants do not ever argue that there was any type of agreement in place for those

5 litigation services (much less produce any such agreement for purposes of their Motion), suggests

6 there never was any such agreement. In any event, Plaintiffs’ Complaint has nothing to do with

7 the contract that forms the basis of their Motion.

8 In addition, Defendants’ utterly fail to show the Court that the attorney fee provision they
9 rely on relates to arising out of the fees they were to charge the Plaintiffs:
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14 (Exhibit A to the Declaration of Scott Green, ¶ 13)

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V. PLAINTIFFS DID NOT SEEK AN UNQUALIFIED REQUEST FOR ATTORNEY
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FEES IN THE ACTION
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Defendants’ also claim that they are entitled to attorney fees simply because Plaintiffs’
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Complaint articulated a qualified or conditional prayer for fees in its Complaint. (Motion 6:24-
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25) Defendant is once again mistaken in and misapplies the law. First, the prayer qualified or
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conditioned the requested relief where only “if and as allowed by law”:
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(Complaint 13:24)
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR ATTORNEYS’ FEES
 1 In other words, if the recovery of fees is not allowed by law, Plaintiffs do not seek and do not get

2 to recover attorney fees. And, as set forth herein, there is no law that would allow Plaintiffs to

3 recover their attorney fees so this prayer for relief is inapplicable.

4 Second, even if Plaintiffs had made an unqualified or unconditional request for attorney
5 fees in its Complaint (which they did not), merely having made the request would not have
6 changed the law to allow the recovery of attorney fees. (See e.g., Blickman Turkus, LP v. MF
7 Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858 (the prevailing defendant's motion for
8 fees was properly denied because the plaintiff, had it prevailed, would not have been entitled to
9 fees. The only fee provision applied to litigation between the signatories to the contract, which
10 were Mozart and its broker, CPS. The actual litigation, however, was between Blickman and
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Mozart; CPS was not a litigant. Because the fee clause did not apply to this litigation, Blickman
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could not have obtained attorney fees had he prevailed against Mozart, and the reciprocity
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13 function of Section 1717 was inapplicable.); see also Brittalia Ventures v. Stuke Nursery Co., Inc.
14 (2007) 153 Cal.App.4th 17)
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Because Plaintiffs have no cause of action on any contract in this case, the law under
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Section 1717 simply does not apply and Plaintiffs’ qualified or conditional “prayer” for the same,
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does not change this law. To the contrary, such a qualified/conditional prayer recognizes and
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affirms that where prohibited by law (i.e. where Section 1717 does not apply), Plaintiffs also are
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not entitled to recover attorney fees.
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VI. CONCLUSION
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22 Defendant’s Motion for attorney fees must be denied. Plaintiffs’ only causes of action are

23 tort causes of action for professional negligence and contribution – they are in no way connected

24 to or based on any contract whatsoever. Because Plaintiffs’ did not bring suit on a contract or

25 seek to enforce a contract, Section 1717 provides no basis for an award of attorney fees. Plaintiffs

26 would not have been able to recover their attorney fees had they been deemed the prevailing

27 parties (regardless of their qualified prayer), and neither does Defendant. The services provided

28 under Transactional Retainer Agreement are not the services alleged to be deficient or negligent

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29934.00018\33232312.1
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR ATTORNEYS’ FEES
 1 in this Action and there is no claim whatsoever sounding in contract of any kind. Plaintiffs’

2 causes of action are tort claims and nothing more. It follows that Civil Code section 1717

3 provides no basis for an award of attorney fees and their Motion must be denied.

5 Dated: September 1, 2020 BEST BEST & KRIEGER LLP

6
By:_____________________________
7
GREGORY G SNARR
8 Attorneys for Plaintiffs JEFFREY S.
NELSON, SHARON J. NELSON and
9 NPG, INC.
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RIVERSIDE, CALIFORNIA 92502
BEST BEST & KRIEGER LLP

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P.O. BOX 1028

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29934.00018\33232312.1
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR ATTORNEYS’ FEES
 1 PROOF OF SERVICE

2 am a citizen of the United States and employed in Riverside County, California. I am

3 over the age of eighteen years and not a party to the within-entitled action. My business address

4 is 3390 University Avenue, 5th Floor, P.O. Box 1028, Riverside, California 92502. On

5 September 1, 2020, I caused to be deposited with Federal Express, a true and correct copy of the

6 within documents: PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR

7 ATTORNEYS' FEES in a sealed envelope, addressed as follows:

8 Frances O'Meara, Esq.

Holly Teel, Esq.
9
THOMPSON COE
10 12100 Wilshire Blvd., Suite 1200
Los Angeles, CA 90025
0_ u- Fo) 11 (310) 954-2350
N
I— a) FOMeara@thompsoncoe.com
u_ Et <
0 dI Lu- co 2 12 (Attorneys for Defendants The Green Law Group, LLP)
L11
— Z 0
0 11 Lu x U_
>
0 13 Following ordinary business practices, the envelope was sealed and placed for collection
0
b
I-U
<CLIEt a- a
14 by Federal Express on this date, and would, in the ordinary course of business, be retrieved by
(/)
CY
L11
15 Federal Express for overnight delivery on this date.
16 I declare under penalty of perjury under the laws of the State of California that the above
17 is true and correct.
18 Executed on September 1, 2020, at Riverside, California.
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20 444. R °
21 Lisa Ruiz-Cambio

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29934 0001R\137173 I ? 1
PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS' FEES