DOLLY M. GEE, UNITED STATES DISTRICT JUDGE.
On February 6, 2015, Plaintiff Liberty Insurance Underwriters, Inc. ("Liberty") filed a complaint against Defendants Davies Lemmis Raphaely Law Corporation ("DLR"), M. Randel Davies, Rosemary Lemmis, and Shahab Raphaely requesting a declaratory judgment that seven pending civil lawsuits ("the Underlying Actions") alleging that Defendants participated in a fraudulent investment scheme should be considered a single claim for purposes of the per-claim limit contained in Liberty's insurance policy. [Doc. # 1.]
On December 29, 2015, Liberty filed a motion for summary judgment ("MSJ") on the grounds that all of the Underlying Actions allege, are based upon, arise out of or are attributable to the same or related wrongful acts, and that Defendants have therefore exhausted the per-claim limit of liability under the 2010-2011 insurance policy issued by Liberty. [Doc. # 43.] On January 22, 2016, Defendants filed an opposition ("Opp."). [Doc. # 44.] On February 5, 2016, Liberty filed a reply ("Reply"). [Doc. # 57.]
A hearing on the matter took place on February 19, 2016.
Liberty is an insurance company which issues professional liability policies. (Defendants'
DLR is a transactional real estate firm, and M. Randel Davies, Rosemary Lemmis, and Shahab Raphaely are transactional real estate attorneys who represent clients involved in purchasing, selling, transferring, and/or syndicating ownership, leasing, and financing of commercial properties. (Respond of Liberty Insurance Underwriters, Inc. to DLR's Statement of Disputed Facts ("Resp.SGDMF") ¶ 1 [Doc. # 59].) DLR and its attorneys serve as counsel to Asset Management Consultants, Inc., a licensed California real estate broker which facilitates real estate investment partnerships, and its principal, James Hopper (collectively "AMC"). (Resp. SGDMF ¶¶ 6-7.)
Liberty issued three successive professional liability policies to DLR for the periods of August 1, 2010 through August 1, 2011 ("2010-2011 Policy"), August 1, 2011 through August 1, 2012 ("2011-2012 Policy"), and August 1, 2012 through August 1, 2013 ("2012-2013 Policy"). (SGDMF ¶¶ 1-3.) All three policies (collectively, "the Policies") are "claims-made-and-reported" policies. (Id. ¶ 4.) The Policies have a limit of liability of $1,000,000 per claim and $2,000,000 in the aggregate. (Id. ¶ 5.) Each Defendant is an insured under the Policies. (Id. ¶ 13.)
Each of the Policies states in pertinent part:
(Id. ¶ 6.) Each of the Policies defines "wrongful act" as "any actual or alleged act, error, omission or personal injury which arises out of the rendering or failure to render professional legal services." (Id. ¶ 11.)
Each of the Policies defines "claim" as "a demand received by you for money or services, including the service of suit or institution of arbitration proceedings against you, or a disciplinary proceeding." (Id. ¶ 7.) Each of the Policies defines "claim expenses" to include "reasonable and necessary fees charged by any lawyer designated by us" and "all reasonable and necessary fees and expenses charged by any lawyer selected by you as independent counsel." (Id. ¶ 8.) Each of the Policies provides: "[c]laim expenses reduce this policy's limits of liability and claim expenses apply to this policy's deductible. However, subject to specific conditions and limitations, a certain amount of claim expenses do not apply to the limits of liability or to the deductible as fully described in the Special Benefits section of the policy." (Id. ¶ 9.) According to the "Special Benefits" section of the Policies, the first $250,000 of claim expenses incurred during the policy period does not apply to the limits of liability. (Id. ¶ 10.)
With regard to multiple claims, the Policies state: "Claims alleging, based upon, arising out of or attributable to the same or related wrongful acts shall be treated as a single claim regardless of whether made against one or more than one of you. All such claims, whenever made, shall be considered first made during the policy period or any extended reporting period in which
AMC handles investment partnership deals for both Tenant-in-Common ("TIC") Investors and Limited Partnership ("LP") Investors. (Resp. SGDMF ¶¶ 13, 18-19.) Prior to 2002, most AMC investors were LP Investors. (Id. ¶ 18.) In 2002, the Internal Revenue Service ("IRS") issued a new Revenue Procedure providing guidance for the structuring of TIC ownership interests that would satisfy the requirements of Internal Revenue Code ("IRC") section 1031 and not be characterized as disallowed partnership investments. (Id. ¶ 130.) Accordingly, in or about 2002, AMC began to offer investors a new type of TIC investment which would allow them to reinvest their sale proceeds with AMC in an IRC section 1031 "like-kind exchange" between sale of one asset and acquisition of another without incurring capital gains tax liability on the sale of the first asset. (Id. ¶¶ 17-19.) Many of the actions at issue in this case relate to these new types of TIC Investments and IRC section 1301 "like-kind exchanges" between LP Investments and TIC Investments intended to defer capital gains taxes. (Id.)
Between 2011 and 2013, seven cases were filed against Defendants and AMC related to 23 AMC transactions which occurred between December 2003 and November 2009. (Id. ¶¶ 20-21.) These actions are referred as the Amlap Action, the Ahern Action, the McCready Action, the Kornievsky Action, the Stella Action, the Kipnis Action, and the Barrons Action (collectively, the "Underlying Actions").
Each of the seven Underlying Actions involve a similar alleged scheme, which is that, in the course of negotiating a property acquisition transaction, the defendants made a false representation to plaintiff-investors that the sellers would pay all commissions relating to the transaction, when in reality the purchase price of the property was marked up to include a commission payment. (SGDMF ¶¶ 43-45.) The plaintiffs in the Underlying Actions allege that they relied upon these misrepresentations in choosing to invest. (Wrongful Acts Chart ¶ 2.
The allegations in the Underlying Actions involve a variety of property sales and acquisitions, related to both TIC and LP Investments, some of which involve the same properties. The allegations in the Amlap Action involve a single TIC investment in the Amlap Property.
Each property acquisition at issue was completed on a different date, purchased from a separate seller, and on different terms from each other acquisition. (Id. ¶ 24.) The purchase agreements were negotiated at different times with 21 different sellers represented by 21 different law firms. (Id. ¶ 26.)
In 2011, Liberty appointed Michael Wilk of Lewis, Brisbois, Bisgaard, & Smith, LLP ("Lewis Brisbois") as defense counsel in the Underlying Actions, and advised DLR of this appointment. (SGDMF ¶ 58.) Wilk submitted fees and costs incurred in the course of this representation to both DLR and Liberty, and Liberty duly reviewed and paid them. (Id. ¶¶ 59-60.)
Liberty Senior Claims Specialist Dorothy Watkins states in her declaration that Liberty has paid the fees and costs submitted by both Lewis Brisbois and Goshgarian in connection with the Underlying Actions, and has attached a list of these expenses. (Declaration of Dorothy Watkins in Support of Plaintiff's Motion for Summary Judgment ("Watkins Decl.") ¶ 7, Ex. 1 [Doc. # 43-35].)
Defendants dispute whether all the Goshgarian invoices have been paid, asserting that "they are entitled to still be reimbursed by [Liberty] for Goshgarian & Marshall's invoices which [Liberty] has refused to pay based on [Liberty's] position that the Underlying Actions constitute one claim and that Defendants have exhausted the limits of the policy." (SGDMF ¶ 64.) In his declaration, Davies states that "[a]s a result of [Liberty's] position, DLR's policy has been charged for the duplicate services of two law firms to defend the cases." (Declaration of M. Randel Davies in Support of Opposition to LIUI's Motion for Summary Judgment ("Davies Decl.") ¶ 48 [Doc # 52].)
The parties dispute whether all of the fees and costs incurred by Wilk were for the benefit and defense of DLR and its attorneys, as Defendants contend that some of Wilk's fees and costs were for Liberty's benefit. (Id. ¶ 59.; see also Davies Decl. ¶ 48 ("The Lewis Brisbois fees should not be charged to the policy limits because after the retention of Goshgarian & Marshall, Lewis Brisbois' services were provided for the benefit of [Liberty]. In addition, a considerable amount [of] time was invested by both firms in preparing reports for the benefit of [Liberty] that added nothing to the defense.").)
Five of the underlying actions — Kornievsky, McCready, Barons, Amlap, and Ahern — have been consolidated and are being heard in a single JAMS arbitration before a neutral mediator. (Burke Decl., Ex. 22.) The Kipnis Action was dismissed by plaintiffs in March 2014 (Burke Decl., Ex. 23), and the Stella Action is the subject of a judicial reference before another third party neutral (Burke Decl., Ex. 26).
In the consolidated arbitration, DLR and its attorneys have moved to dismiss ("JAMS MTD") on the basis that the claims are barred by the applicable statutes of limitation, contain no factual allegations to support any of the claims for relief, and are barred by collateral estoppel. (Burke Decl. Ex. 24.)
In this motion to dismiss, DLR states:
(JAMS MTD at 11-13) (emphasis added) (internal footnotes omitted). This motion is currently pending.
In the Stella action, DLR and its attorneys filed a demurrer ("Stella Demurrer"), seeking dismissal of all claims against them on the basis that they are barred by the application statutes of limitation, fail to state a claim, and are barred by collateral estoppel. (Burke Decl., Ex. 26.)
In this demurrer, DLR states as follows:
(Stella Demurrer at 15.) In a Statement of Decision dated August 23, 2015, the JAMS Referee sustained the demurrer, holding that all of the claims were time barred. (Id.)
Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); accord Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir.2011). Material facts are those that may affect the out-come of the case. Nat'l Ass'n of Optometrists & Opticians v. Harris, 682 F.3d 1144, 1147 (9th Cir.2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its initial burden, Rule 56(c) requires the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(c), (e)); see also Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir.2010) (en banc) ("Rule 56 requires the parties to set out facts they will be able to prove at trial."). "In judging evidence at the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence." Soremekun v. Thrifty Payless,
At issue in this case is whether the Underlying Actions should be considered a single claim for purposes of the 2010-2011 Policy's per-claim limit. Pursuant to the Policy, "[c]laims alleging, based upon, arising out of or attributable to the same or related wrongful acts shall be treated as a single claim[.]" (2010-2011 Policy at 7 of 14, ¶ 6.) The Policy defines a "wrongful act" as "any actual or alleged act, error, omission or personal injury which arises out of the rendering or failure to render professional legal services." (Id. at 3 of 14, ¶ 15.) Because the Underlying Actions arise out of 23 distinct transactions which occurred between 2003 and 2009, they are not based on the "same" wrongful act. The question therefore becomes whether the underlying alleged wrongful acts are sufficiently "related" that the Underlying Actions should be treated as a single claim.
Various California courts have interpreted similar or identical clauses regarding when wrongful acts may be considered "related" in the context of multiple claims. In the leading California case, Bay Cities Paving & Grading, Inc. v. Lawyers' Mut. Ins. Co., the California Supreme Court held that "the term `related' ... encompasses both logical and causal connections." 5 Cal.4th 854, 873, 21 Cal.Rptr.2d 691, 855 P.2d 1263 (1993). The court held that, as used in a professional liability insurance policy, "related" was neither an ambiguous term nor limited only to causally related acts. Id. "[T]he rule requiring insurance policies to be construed against the party who chose the language [does not require] such a drastic restriction of the natural scope of the definition of the word `related' to mean only a causal connection." Id. at 872, 21 Cal.Rptr.2d 691, 855 P.2d 1263 (internal citation, quotation marks, and brackets omitted). The fact that the term "related" was not defined in the policy did not render it inherently ambiguous. Id. at 866, 21 Cal.Rptr.2d 691, 855 P.2d 1263 ("The absence from the policy of a definition of the term `related' does not by itself render the term ambiguous.") (emphasis in original).
In order to be causally related, the initial error or wrongful act must "cause" the additional wrongdoing. See id. at 868, 21 Cal.Rptr.2d 691, 855 P.2d 1263 ("If an attorney's error causes one or more other errors, the result is a chain of causation that leads to an injury, that is, a single claim.") "Even though there have been multiple causative acts, there will be a single `occurrence' if the acts are causally related to each other as well as to the final result." Id. at 869, 21 Cal.Rptr.2d 691, 855 P.2d 1263 (internal citation, quotation marks, and brackets omitted). The Bay Cities court did not elaborate on the test for a "logical" relationship between acts of wrongdoing, noting only that it did not intend to suggest that "the term `related' would encompass every conceivable logical relationship." Id. at 873, 21 Cal.Rptr.2d 691, 855 P.2d 1263. "At some point, a relationship between two claims, though perhaps `logical,' might be so attenuated or unusual that an objectively reasonable insured could not have expected they would be treated as a single claim under the policy." Id.
Other California courts have found multiple claims to be sufficiently related where the underlying actions are in service of a "single plan." In McWethy v. California Ins. Guarantee Ass'n, an attorney hired to prepare a client's will and trusts fraudulently
In Flowers v. Camico Mutual Insurance Company, the California Court of Appeal addressed a malpractice case in which an accounting firm failed to protect and guard against an embezzlement scheme perpetrated by its Chief Financial Officer ("CFO"). Flowers v. Camico Mut. Ins. Co., No. A134890, 2013 WL 2571271, at *2 (Cal. Ct.App. June 12, 2013). The Flowers court found that, in spite of alleging more than one claim, the underlying action should be treated as a single claim for purposes of the per-claim limit of liability under a professional liability insurance policy. Id. The court found that the firm's acts, errors, and omission were "related", reasoning that "in every instance, the allegations against the Firm remain[ed] the same, that is, the Firm repeatedly failed to detect and guard against Hillyer's embezzlement scheme, which resulted in the same injury to the plaintiffs, namely, the loss of their funds." Id. at *4. The court stated that it was "critical to note that while there were multiple plaintiffs, as to the Firm there was essentially one client only." Id. ("As noted above, all the corporate entity plaintiffs were owned by the Flowers, and the Flowers themselves were the only individual plaintiffs.")
In both Flowers and McWethy, there was essentially a single plaintiff who had suffered the same injury as a result of the multiple wrongful acts. The Ninth Circuit, however, has upheld a finding that two claims were sufficiently related even where "the suits were filed by two different sets of plaintiffs in two different fora under two different legal theories" because "the common basis for those suits was the [defendant's] business practice of permitting independent dealers to mark up [defendant's] loans." WFS Fin., Inc. v. Progressive Cas. Ins. Co., 232 Fed.Appx. 624, 625 (9th Cir.2007). The court found that "[t]he harms alleged in the two class action suits [were] causally related and [did] not present such an `attenuated or unusual' relationship that a reasonable insured would not have expected the claims to be treated as a single claim under the policy." Id. Similarly, a court in this district has found underlying actions from multiple plaintiffs to be related where the allegations were based on defendant-company's consistent policy of recklessly issuing high-risk mortgages. XL Specialty Ins. Co. v. Perry, No. CV 11-02078-RGK JCGx, 2012 WL 3095331, at *8 (C.D.Cal. June 27, 2012).
In contrast, in Financial Management Advisors, LLC v. Am. Int'l Specialty Lines Ins. Co., the Ninth Circuit found that fraudulent misrepresentation claims brought by "unrelated investors, with unique investment objectives [who] were advised at separate meetings on separate dates, according to their unique financial positions" were not sufficiently related as to constitute a single claim. 506 F.3d 922, 925 (9th Cir.2007). The court noted that the district court incorrectly "focused solely on the allegations ... relating to the investment vehicle common to both investors."
Courts in other jurisdictions have held that "[c]laims may be related even if they allege different types of causes of action and arise from different acts" where there is "a `single course of conduct' that serves as the basis for the various causes of action." In re DBSI, Inc., No. 08-12687 PJW, 2011 WL 3022177, at *4 (Bankr. D.Del. July 22, 2011); see also Kilcher v. Cont'l Cas. Co., 747 F.3d 983, 989 (8th Cir.2014) ("a court may consider several factors in concluding whether dishonest acts are part of a `series of related acts,' including whether the acts are connected by time, place, opportunity, pattern, and, most importantly, method or modus operandi.") (internal citation and quotation marks omitted). Similarly, the Eleventh Circuit has held that multiple claims are related where the wrongful acts involve a "single course of conduct" "aimed at a single particular goal." Cont'l Cas. Co. v. Wendt, 205 F.3d 1258, 1264 (11th Cir. 2000). In Gregory v. Home Ins. Co., the Seventh Circuit upheld the district court's finding that that claims could be considered related where they "involved legal advice and drafting of three documents all of which flowed from [defendant] structuring the deal to try to achieve certain tax and security consequences." 876 F.2d 602, 605 (7th Cir.1989).
In this case, while the Underlying Actions have been brought by different plaintiffs, they all arise from a single course of conduct, a unified policy of making alleged affirmative misrepresentations to investors in order to induce them to invest in commercial real estate acquisitions facilitated by AMC. See Wendt, 205 F.3d at 1264 ("The fact that these acts resulted in a number of different harms to different persons, who may have different types of causes of action ... does not render the `wrongful acts' themselves to be `unrelated' for the purposes of the insurance contract [where they] comprised a single course of conduct designed to promote investment in [the firm].")
The Underlying Actions all allege the same misrepresentations and omissions by Defendants in the same form relating to similar or identical investments and properties. In deciding to invest in AMC's commercial property transactions, the plaintiffs in the Underlying Actions all uniformly relied on written memoranda and other documents prepared by DLR which contained alleged misleading statements and omissions regarding inflated purchase prices and hidden commissions. Cf. Financial Management Advisors, 506 F.3d at 925 (one claimant's allegations relied on oral misrepresentations and omissions regarding a variety of investment vehicles, while the other's allegations relied on the breach of a written agreement to prioritize claimant's investment in a lower-risk "tranche" of a particular fund). The allegations all relate to either TIC or LP Investments in similar or identical properties, and are largely bound up with the IRC section 1031 like-kind exchanges designed to avoid capital gains taxes. See Kilcher, 747 F.3d at 989 (dishonest acts
This case is distinguishable from Financial Management Advisors, which involved allegations of different types of wrongdoing related to different types of investments. 506 F.3d at 925. The main connection between the two claims was that they involved the same financial advisor who had advised two clients to invest in at least one of the same funds. Id. In contrast, the present case involves allegations of similar or identical acts of wrongdoing which were part of a general course of conduct aimed at the same goal of inducing investors to participate in transactions related to section 1031 like-kind exchanges.
The Underlying Actions are all ultimately based on the same alleged uniform policies and/or reckless actions of DLR and AMC. See WFS, 232 Fed.Appx. at 625 (suits filed by different groups of plaintiffs under different legal theories sufficiently related where the common basis for the suits was defendant's consistent business practice of permitting its agents to inflate the price of loans); XL Specialty, 2012 WL 3095331, at *8 (claims sufficiently related where allegations based on defendant's consistent policy of issuing high-risk mortgages).
Defendants' contention that a reasonable insured would not have expected the Underlying Actions to be treated as a single claim under the policy is unavailing. The relationship between the claims is not so "attenuated or unusual" that it should come as a shock to Defendants to discover that they are related. Bay Cities, 5 Cal.4th at 873, 21 Cal.Rptr.2d 691, 855 P.2d 1263. Defendants' own court filings indicate that they themselves consider the claims in these cases to be "virtually identical" (Stella Demurrer at 15) and to "contain identical claims involving similar properties" (JAMS MTD at 11).
The out-of-jurisdiction cases cited by Defendants regarding the distinct and separate duties of attorneys to different clients in malpractices cases are inapposite because they apply a standard different from that adopted in California and the Ninth Circuit. In Scott v. Am. Nat. Fire Ins. Co., the Northern District of Ohio articulated a test for attorney malpractice claims that "if the attorney's duties are distinct and separate, or the actions result in distinct harms, then the actions in breaching those duties give rise to separate malpractice claims." 216 F.Supp.2d 689, 694 (N.D.Ohio 2002). The Scott court specifically distinguished this test from the causal-or-logical connection approach adopted by the California Supreme Court in Bay Cities. Id.
Similarly, in Beale v. Am. Nat. Lawyers Ins. Reciprocal, the Maryland Court of Appeal adopted the "distinct and separate duty" test. 379 Md. 643, 666, 843 A.2d 78, 92 (2004). The Beale court distinguished Gregory and Wendt by noting that, in those cases, "the attorney was engaged in a course of conduct designed to encourage investment in his client or his client's notes." Id. Gregory and Wendt are most applicable to the facts of this case. In Continental Cas. Co. v. Grossmann, the Appellate Court of Illinois found that three claims of legal malpractice against a single attorney where plaintiffs were likely to recover "on the basis of acts entirely unrelated to the grounds on which the others are able to recover." 271 Ill.App.3d 206, 211, 648 N.E.2d 175, 179, 207 Ill.Dec. 719 (1995). That is not the case here, as the alleged wrongful acts are closely interrelated.
In sum, the allegations in the Underlying Actions are sufficiently related such that they should be considered a single claim for purposes of the per-claim limit contained in Liberty's insurance policy.
It is undisputed that the relevant perclaim limitation from the 2010-2011 Policy is $1,250,000. (SGDMF ¶¶ 5, 10.) Relevant "claim expenses" which count against this limit include "reasonable and necessary fees charged by any lawyer designated by us" and "all reasonable and necessary fees and expenses charged by any lawyer selected by you as independent counsel." (Id. ¶ 8.) Defendants have at least raised a triable issue as to whether all fees and costs incurred by Lewis Brisbois were "reasonable and necessary," in that there is a genuine dispute as to whether all such fees and costs were incurred for the benefit of Defendants. Triable issues therefore remain as to whether the per-claim limit has been exhausted.
In light of the foregoing, Plaintiff's motion for summary judgment is
