Case Number: EC067695 Hearing Date: March 01, 2019 Dept: NCE

MOTION FOR NEW TRIAL

[CCP §§ 657, 662]

Date: 3/1/19

Case: The Krass Law Firm v. Liberty Mutual Fire Ins. Co. (EC 067695)

Tentative Ruling

On November 20, 2018, the Court (Simpson, J.) granted Defendant Liberty Mutual Fire Insurance Company’s motion for summary judgment, and, on December 19, 2018, entered judgment against Plaintiff The Krass Law Firm in accordance therewith. On January 29, 2019, plaintiff filed the instant Motion for New Trial and/or Modify Decision pursuant to CCP §§ 657, 662. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 859 [“A motion for a new trial is appropriate following an order granting summary judgment. [Citations omitted] This is so, even though, strictly speaking, summary judgment is a determination that there shall be no trial at all”].) For the reasons that follow, Plaintiff’s motion is hereby DENIED.

As is set forth in the Court’s November 20, 2018 Minute Order, the outcome here is dictated by Mojtahedi v. Vargas (2014) 228 Cal.App.4th 974, 978, which holds clearly that an “attorney’s lien is only enforceable after the attorney adjudicates the value and validity of the lien in a separate action against his client.” Because it is undisputed that plaintiff “failed to establish the existence, amount, and enforceability of his lien on the settlement money” through any such action against plaintiff’s former client (id. at p. 979), summary judgment was properly granted here. Moreover, even assuming plaintiff properly requested leave to amend the complaint to avoid summary judgment (and, notably, there is nothing in the record to establish plaintiff actually sought leave, other than plaintiff’s claim that counsel did so orally at the hearing on the motion for summary judgment (see Pl. Mtn. at 5)), the Court did not abuse its discretion in declining to permit the amendment. Presumably, plaintiff would have sought to add its former client and a claim of entitlement to some portion of the client’s settlement – an action which very well might have satisfied Mojtahedi’s requirement of a “separate, independent action . . . to determine the existence, value, and enforceability of [the attorney’s] lien as against [the former client].” (Cf. So Cal. Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 496 [interpleader action involving former attorney and client sufficient to constitute separate action governing attorney liens where interpleader complaint sufficiently placed the existence, value, and enforceability of the attorney’s lien against the client at issue].) Nonetheless, it was well within the Court’s permissible wide discretion here to deny leave to add an entirely new party and distinct cause of action in a matter that had been pending for nearly a year, particularly where, as here, defendant’s Answer (filed nearly 10 months earlier) and motion for summary judgment (filed over five months earlier) placed plaintiff (a law firm) on notice of the issue long before plaintiff finally attempted to address it upon learning the Court’s inclination to grant summary judgment at the hearing. This is a situation far unlike the one in Prue v. Brady Co. (2015) 242 Cal.App.4th 1367, which plaintiff relies upon here. In Prue, the court found it was an abuse of discretion not to permit plaintiff to amend the complaint to add additional factual allegations in support of a claim already asserted against a defendant who had already appeared. Here, by contrast, to escape summary judgment, plaintiff would have had to add an entirely new cause of action against a brand new defendant, significantly changing the complexion and posture of a long-pending case. It was not an abuse of discretion to disallow that.

Accordingly, plaintiff’s motion for new trial is DENIED. Insofar as plaintiff seeks modification or clarification of the Court’s order and judgment concerning the grant of summary judgment, that request is likewise DENIED.