Filed 8/24/26 Ghermezian v. Ruiz CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
RAYMOND GHERMEZIAN et al., B345272
Plaintiffs and Appellants, (Los Angeles County v. Super. Ct. No. 22STCV36251)
DORLINDA RUIZ et al.,
Defendants and Respondents.
APPEAL from a judgment and order of the Superior Court of Los Angeles County, Cherol J. Nellon, Judge. Affirmed.
Raymond Ghermezian, A Professional Law Corporation, Raymond Ghermezian; Gelb Law and Yisrael Gelb for Plaintiffs and Appellants.
Law Offices of Jacob Emrani and Gabriel A. Clift for Defendants and Respondents Law Offices of Jacob Emrani and Dorlinda Ruiz.
Bendel Law Group and Jason R. Bendel for Defendant and Respondent Karina Padua.
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INTRODUCTION
After suing for personal injuries suffered in a slip and fall accident, Dorlinda Ruiz grew dissatisfied with her counsel’s lack of communication and switched attorneys from Raymond Ghermezian1 to The Law Offices of Jacob Emrani (Emrani). After Ruiz settled her action, Emrani placed the settlement funds into its client trust account, notified Ghermezian of the settlement and acknowledged Ghermezian’s fee claim, and initiated discussions over the value of that claim. No resolution was reached and Ghermezian sued both Ruiz and Emrani. Ghermezian later also named as a defendant Karina Padua, an attorney at the Emrani firm who handled Ruiz’s personal injury action and was representing Emrani and Ruiz in Ghermezian’s action.
The trial court granted summary judgment to Emrani under Code of Civil Procedure2 section 437c and, a few days later, Ghermezian accepted Ruiz’s section 998 offer of judgment for $7,500, which was conditioned on dismissal of Emrani and Padua. Despite its acceptance of the section 998 offer, Ghermezian did not file any dismissal. Padua, contending that Ghermezian’s claim against her was frivolous, filed a motion for sanctions under section 128.7. Ghermezian still refused to dismiss Padua, and the trial court granted Padua sanctions. The court also eventually entered a judgment of dismissal in favor of Emrani and awarded Emrani costs.
1 We will collectively refer to Raymond Ghermezian and his professional law corporation as “Ghermezian.”
2 Unspecified statutory references are to the Code of Civil Procedure.
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Ghermezian contends there were triable issues precluding summary judgment, and asks us to reverse the judgment in Emrani’s favor including its award of costs to Emrani. Ghermezian also contends the trial court erred in granting Padua’s sanctions motion. We see no merit in these arguments and affirm.
FACTUAL AND PROCEDURAL BACKGROUND A. Ruiz Retains Ghermezian to Represent Her in Connection with a Personal Injury Claim In 2018, Ruiz retained Ghermezian to represent her on a contingency basis to pursue recovery for personal injuries she suffered from a fall in a store. The retainer agreement entitled Ghermezian to the “reasonable value” of its services in the event it was discharged. B. Ruiz Terminates Ghermezian and Retains Emrani;
Ruiz Settles her Personal Injury Claim; Emrani and Ghermezian Discuss the Value of Ghermezian’s Fee Claim On September 9, 2019, Ruiz discharged Ghermezian and retained Emrani to represent her. Two days later, Ghermezian served a lien “for the reasonable value of [its] attorney’s fees and costs/monies advanced . . . to [Ruiz]” on defense counsel in Ruiz’s action.
On January 26, 2021, Ruiz settled her personal injury claim for $50,000. Emrani received the settlement check on February 23, 2021, and deposited it into its client trust account. In March 2021, Emrani’s lien negotiator sent five e-mails to Ghermezian asking for “a breakdown” of its fees and costs in
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Ruiz’s action. Ghermezian did not respond with information about its fees but did state that it had advanced $413 in costs. C. Ghermezian Sues Ruiz and Emrani for a Share of the Settlement Proceeds and Later Adds Padua as a Defendant In November 2022, Ghermezian sued Ruiz and Emrani over its fee claim. According to Ghermezian’s operative second amended complaint, filed on October 25, 2023, Ruiz retained Ghermezian on or about April 18, 2018, to pursue a recovery for injuries Ruiz sustained in an accident at a store. Ghermezian filed a lawsuit on behalf of Ruiz against the store on or about January 23, 2019. After Ruiz terminated Ghermezian and retained Emrani to represent her, Ghermezian served Emrani with a lien on any recovery by Ruiz for the reasonable value of its professional services.3 Ghermezian asserted claims against Ruiz for breach of contract, declaratory relief, and quantum meruit,4 claims against
3 Ghermezian attached a copy of its lien to the second amended complaint. Although the proof of service accompanying the lien did not include Emrani, Ghermezian alleged the lien was served on Emrani. Whether Ghermezian served a notice of its lien on Emrani does not impact our analysis. “Unlike a judgment creditor’s lien, which is created when the notice of lien is filed [citation], an attorney’s [fee] lien is a ‘secret’ lien; it is created and the attorney’s security interest is protected even without a notice of lien.” (Carroll v. Interstate Brands Corp. (2002) 99 Cal.App.4th 1168, 1172.)
4 The captions indicate the first three claims were asserted against Ruiz and the Doe defendants, but the claims do not include any allegations against the Doe defendants.
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Ruiz, Emrani, and Doe defendants for unjust enrichment, money had and received, and conversion, and claims against Emrani and Doe defendants for intentional interference with contractual relations. Ghermezian sought compensatory damages, declaratory relief, and punitive damages.
Emrani and Ruiz were represented by Padua in the action. On January 26, 2024, Ghermezian filed a Doe amendment naming Padua as a defendant in her individual capacity. D. The Trial Court Grants Emrani’s Motion for Summary Judgment On February 15, 2024, Emrani moved for summary judgment. As relevant here, Emrani adduced the following evidence. Ruiz decided to terminate Ghermezian because it had failed to communicate with her in 2018 and 2019. On September 9, 2019, Ruiz called Emrani and retained it; Ruiz had not previously communicated with Emrani. The next day, Emrani sent a letter notifying Ghermezian of the retention and requesting information about Ghermezian’s time spent on the case and the costs it had incurred. Ruiz settled her personal injury claim on January 26, 2021, and on February 23, 2021, Emrani received the settlement check and deposited it into its client trust account. From March 11 to 23, 2021, Emrani asked Ghermezian for a breakdown of its fees and costs in Ruiz’s action, but Ghermezian did not provide the information. On April 13, 2021, Ghermezian demanded $413 for its costs incurred in Ruiz’s action. On August 10, 2021, Ruiz agreed with Emrani that $22,500 of the settlement would be allocated to attorney’s fees; that amount and the amount of costs claimed by Ghermezian remained in Emrani’s client trust account. Ghermezian never
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provided Emrani or Ruiz with a written breakdown of its services and fees in Ruiz’s action.
Emrani contended that Ghermezian’s claims failed because it had refused to provide the information necessary to resolve its lien claim, namely, a breakdown of the services it provided to Ruiz, and because the disputed portion of the settlement remained in Emrani’s client trust account. Emrani also contended that Ghermezian could not sue Emrani without first establishing the existence, amount, and enforceability of its lien on the settlement funds in an independent action against Ruiz.
Ghermezian filed its opposition on August 27, 2024.
Ghermezian did not respond to Emrani’s arguments or adduce any evidence; it instead requested pursuant to section 437c, subdivision (h) that the motion be denied or the hearing continued due to Emrani’s failure to produce witnesses for deposition.5 The court ultimately granted summary judgment. The court concluded there were no triable issues as to any of Ghermezian’s claims against Emrani. The unjust enrichment and conversion claims failed because Ghermezian had not established the existence, amount, and enforceability of its lien in a separate action against Ruiz and, thus, had not shown it was entitled to any portion of the settlement funds. The claim for money had and received failed because it was undisputed that Emrani deposited the settlement funds in its client trust account, not its own account, and therefore never received the disputed funds. The claim for intentional interference with contractual relations failed because Emrani had not caused Ruiz to discharge
5 Ghermezian does not maintain this claim on appeal.
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Ghermezian, Ghermezian failed to provide Emrani with the information needed to determine the proper amount of its fee claim despite Emrani’s requests for the information, and Ghermezian had failed to establish it was entitled to the settlement funds. There was no triable issue as to Ghermezian’s punitive damages claim because it was premised on the claims for conversion and intentional interference with contractual relations, which both failed. E. Ghermezian Accepts Ruiz’s Section 998 Offer On September 28, 2024, two days after the court issued its summary judgment ruling, Ruiz served Ghermezian with an offer of judgment under section 998 in the amount of $7,500. The offer indicated it “[was] expressly being made by . . . R[uiz] and demand[ed] that the entire action be dismissed with prejudice in favor of all defendants and D[oe] defendants, not only herself, in exchange for the amount of money herein offered.” Attached to the offer was a proposed judgment in favor of Ghermezian against Ruiz in the amount of $7,500, with “$0.00” for costs. On October 1, 2024, Ghermezian accepted the offer of judgment. F. Emrani and Ruiz File a Memorandum of Costs and Ghermezian Files a Motion to Tax Costs On October 15, 2024, Emrani and Ruiz filed a memorandum of costs in the amount of $7,465.30.
Ghermezian filed a motion to tax costs in which it argued the costs Emrani and Ruiz sought were not recoverable, Emrani and Ruiz had failed to provide supporting documentation, there were discrepancies in the amounts and dates of the claimed costs, the memorandum of costs was premature because no judgment had been entered, and Emrani and Ruiz were not entitled to any costs because Ghermezian had accepted the offer to compromise
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requiring dismissal of the defendants which did not include any award of costs.
In opposition, Emrani and Ruiz argued the costs they sought were allowable by statute, the section 998 offer to compromise did not bind Emrani, and the court could award costs even though their memorandum of costs was premature. Emrani and Ruiz also provided documentation to support their claimed costs. G. Padua Files a Motion for Sanctions which the Trial Court Grants On October 30, 2024, Padua served a motion under section 128.7 seeking $32,395 in monetary sanctions against Ghermezian for pursuing claims against her individually without a reasonable basis. Padua contended she could not be held personally liable to Ghermezian, adducing evidence that she was not involved in Ruiz’s decision to terminate Ghermezian, the settlement check was made out to Emrani and Ruiz, Padua did not receive the settlement check or decide what should be done with it, no portion of the settlement was disbursed to her, the funds in dispute were maintained in Emrani’s client trust account pending resolution of Ghermezian’s fee claim, and Ghermezian’s discovery responses failed to assert any factual basis for its claims against her. In addition, Padua contended that Ghermezian’s continued assertion of its claims against her after it had agreed to dismiss her by accepting the section 998 offer to compromise was unreasonable. Padua reserved December 19, 2024 as the hearing date for the motion.
Section 128.7 provides a safe harbor period during which the opposing party can avoid sanctions by withdrawing or correcting the challenged pleading or other document. (Id., subd.
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(c)(1).) The moving party must first serve its motion for sanctions and may only file the motion if the challenged pleading or other document has not been “withdrawn or appropriately corrected” “within 21 days after service of the motion.” (Ibid.) Here, the first court day after the expiration of the safe harbor period was November 25, 2024. Padua submitted her sanctions motion for filing on that day, but the court did not accept the motion for filing until the following day, November 26, 2024.
Among other things, Ghermezian contended in its opposition that the sanctions motion was untimely because it was filed fewer than 16 court days before the December 19 hearing date, the motion should be denied because Padua had not served a file-stamped copy of the motion and, thus, there was “no way to verify that the motion filed with the [c]ourt [was] the same as the one served during the safe harbor period,” Ghermezian had no opportunity to withdraw the offending pleading because it had “agreed to dismiss . . . Padua” by accepting Ruiz’s section 998 offer of judgment, and Ghermezian’s claims against Padua were not objectively unreasonable because Padua failed to have Ghermezian’s name placed on the settlement check.
In her reply, Padua adduced evidence that she had submitted the sanctions motion for filing on November 25, 2024, but the clerk’s office had mistakenly rejected it. Padua responded to Ghermezian’s argument that there was no pleading it could withdraw by pointing out Ghermezian could have dismissed Padua; she further adduced evidence that on October 16, 2024, Padua’s attorney requested by e-mail that Ghermezian dismiss Padua pursuant to the terms of the accepted offer to compromise and Ghermezian declined. Padua requested
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an additional $4,275 in sanctions for the cost of preparing the reply and appearing at the hearing.
The trial court sua sponte continued the hearing on the sanctions motion to January 9, 2025, and later continued it again to January 27, 2025. After hearing argument on that day, the court took the matter under submission.
On January 30, 2025, the trial court granted the motion, concluding that Ghermezian’s claims against Padua for unjust enrichment, money had and received, and conversion lacked reasonable factual support because there was no evidence that Padua received or disposed of any money in which Ghermezian had an interest. The court concluded that Ghermezian’s claim for intentional interference with contractual relations lacked factual support because there was no evidence Padua received or disposed of money which Ghermezian claimed was owed to it as a result of its contract with Ruiz. The court observed that the fact Ghermezian “could not articulate facts giving rise to Padua’s liability during discovery demonstrates the allegations against Padua were not grounded in fact.” The court found there was no evidence or authority to support Ghermezian’s assertion that Padua had an obligation to have Ghermezian’s name placed on the settlement check.
The court also rejected Ghermezian’s procedural arguments. It concluded that the clerk’s office, not Padua, was at fault for the untimely filing of the motion and that Ghermezian had received adequate notice of the motion. It found that Ghermezian’s “speculation” that the version of the motion served on it differed from the version that was filed was “meritless.” The court lastly held that, even if Ghermezian had agreed to dismiss Padua as part of its acceptance of Ruiz’s section 998 offer of
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judgment, sanctions were appropriate because Ghermezian had not effected the dismissal during the safe harbor period. The court ordered Ghermezian to pay $10,450 in sanctions to Padua. H. The Trial Court Awards Costs to Emrani In its January 30, 2025 order, the court also ruled on Ghermezian’s motion to tax costs, rejecting an award of costs to Ruiz, and separately allowing Emrani $3,282.90 in costs. The court ruled that Emrani was a prevailing party, and thus entitled to costs, because Ghermezian had not recovered anything from Emrani and had agreed to dismiss Emrani under the accepted section 998 offer. The court’s order indicated that it would sign Emrani’s proposed judgment, as modified to reflect its ruling on costs.
On February 3, 2025, the court entered a judgment of dismissal in favor of Emrani.
DISCUSSION
We first address Ghermezian’s contention that the trial court erred in granting summary judgment to Emrani and awarding Emrani costs. We then turn to Ghermezian’s claim that the trial court abused its discretion in awarding sanctions to Padua.6
6 Ghermezian’s notice of appeal, filed on March 25, 2025, purported to appeal the January 30, 2025 “[o]rder . . . dismissing [its] [c]omplaint with prejudice.” We construe Ghermezian’s notice of appeal liberally to include the trial court’s ruling on Padua’s sanctions motion, which was set forth in the January 30, 2025 order, as well as the judgment of dismissal entered by the court on February 3, 2025, which effectuated the court’s statement in the January 30, 2025 order that it would enter a
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A. The Judgment of Dismissal and Award of Costs to Emrani Ghermezian contends the trial court erred in granting Emrani’s motion for summary judgment because Emrani failed to carry its initial burden of showing the claims against it lacked merit. (See Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305 [where a motion for summary judgment fails to show the claims lack merit, “summary judgment cannot be ordered, even if the opposing party does not respond sufficiently or at all”].) We need not address this claim of error because Ghermezian has not shown any prejudice resulting from it.
“Our state Constitution provides that ‘[n]o judgment shall be set aside, or new trial granted, in any cause, . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.)” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.) “ ‘[A] “miscarriage of justice” should be declared only when the court, “after an examination of the entire cause, including the evidence,” is of the “opinion” that it is reasonably probable that a result more
dismissal for Emrani. (Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 203.) Emrani and Padua have responded on the merits of Ghermezian’s challenges, and the only issue they raise regarding the notice of appeal is Emrani’s contention that Ghermezian failed to timely appeal the trial court’s order granting summary judgment. This argument fails because the appeal lies from the ensuing judgment, not from an order granting summary judgment. (§§ 437c, subd. (m)(1), 904; Saben, Earlix & Associates v. Fillet (2005) 134 Cal.App.4th 1024, 1030.)
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favorable to the appealing party would have been reached in the absence of the error.’ ” (Ibid.) Here, a result more favorable to Ghermezian would not have occurred because Ghermezian accepted Ruiz’s section 998 offer and thereby was bound to dismiss Emrani with prejudice regardless of whether the trial court entered judgment on its summary judgment ruling.
We likewise affirm the award of costs to Emrani.
Ghermezian’s sole contention is that we must reverse the award of costs if we reverse the judgment in Emrani’s favor. This point is moot given our affirmance of the judgment. In any event, the trial court properly found that Emrani was a prevailing party entitled to costs because Ghermezian had agreed to dismiss Emrani pursuant to Ruiz’s section 998 offer (§ 1032, subd. (a)(4) [“a defendant in whose favor a dismissal is entered” is deemed to be a “ ‘[p]revailing party’ ” entitled to costs]), and Ruiz’s offer did not prevent Emrani from independently seeking its costs. B. The Sanctions Order 1. Legal Principles and Standard of Review Section 128.7 authorizes a court to “impose sanctions for filing a pleading if the court concludes the pleading was filed for an improper purpose or was indisputably without merit, either legally or factually.” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440.) The trial court concluded that Ghermezian’s claims against Padua lacked factual merit, meaning they were based on “allegations and other factual contentions [which do not] have evidentiary support or . . . are [not] likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.” (§ 128.7, subd. (b)(3).) The court can impose sanctions “upon the
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attorneys, law firms, or parties that have violated [section 128.7] or are responsible for the violation.” (Id., subd. (c).)
“[T]o obtain sanctions, the moving party must show the party’s conduct in asserting the claim was objectively unreasonable. [Citation.] A claim is objectively unreasonable if ‘any reasonable attorney would agree that [it] is totally and completely without merit.’ ” (Peake v. Underwood, supra, 227 Cal.App.4th at p. 440.) To permit appropriate advocacy, “the evidentiary burden to escape sanctions under section 128.7 is light.” (Kumar v. Ramsey (2021) 71 Cal.App.5th 1110, 1126.)
To provide the opposing party the opportunity to withdraw or correct the challenged pleading, section 128.7 permits the moving party to file its motion only if the challenged pleading has not been “withdrawn or appropriately corrected” “within 21 days after service of the motion.” (Id., subd. (c)(1).)
We review an order imposing sanctions under section 128.7 for abuse of discretion. (Peake v. Underwood, supra, 227 Cal.App.4th at p. 441.) “The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court’s ruling under review. The trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712, fns. omitted.)
2. Analysis a. The effect of Ghermezian’s agreement to dismiss all defendants.
Ghermezian first contends that it could not be sanctioned for maintaining factually frivolous claims against Padua because
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by the time Padua filed her motion Ghermezian had agreed to dismiss Padua as part of the section 998 offer it accepted. Ghermezian relies on authority that a court generally lacks jurisdiction over a person that is no longer a party to the action; it acknowledges that courts have made exceptions for sanctions motions in some circumstances but contends those cases are distinguishable. (See, e.g., Frank Annino & Sons Construction, Inc. v. McArthur Restaurants, Inc. (1989) 215 Cal.App.3d 353, 357 [affirming sanctions awarded to dismissed party while acknowledging the “general rule” that “once a person has been dismissed from an action he is no longer a party and the court lacks jurisdiction to conduct any further proceedings as to him”].) Ghermezian additionally relies on cases holding that sanctions cannot be imposed under section 128.7 where the offending party was deprived of its ability to withdraw the challenged pleading within the 21-day safe harbor period. (See, e.g., Li v. Majestic Industry Hills LLC (2009) 177 Cal.App.4th 585, 588 [reversing sanctions award because the sanctioned party was “deprived . . . of the full 21-day safe harbor period” where the trial court denied the challenged motion 19 days after service of the sanctions motion].)
Ghermezian’s argument fails for the simple reason that it had not dismissed Padua by the time Padua filed her sanctions motion, or even by the time the trial court ruled on the motion over two months later. Thus, Padua was still a party to the action and the trial court undoubtedly had jurisdiction to consider her motion. Nothing prevented Ghermezian from withdrawing the challenged pleading—its second amended complaint—by filing a dismissal in favor of Padua. Ghermezian claims that it had accepted Ruiz’s offer to compromise and that
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one of the terms of the offer was that Ghermezian would dismiss the defendants with prejudice. But Ghermezian failed to file a dismissal of its claims against Padua or take any other steps to effect such a dismissal. To the contrary, roughly two weeks after Ghermezian had accepted the offer to compromise, Padua’s attorney requested by e-mail that Ghermezian dismiss Padua pursuant to the terms of the offer and Ghermezian refused.
In its reply brief, Ghermezian contends for the first time that after it accepted Ruiz’s section 998 offer the filing and entry of judgment was “ministerial.” Ghermezian has forfeited this argument by failing to raise it in the trial court or in its opening brief in this court. (See Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11 [“Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant”]; Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767 [declining to consider the appellant’s claim not “raise[d] . . . in the trial court below”].) Even if this assertion was not forfeited, the trial court did not abuse its discretion. The record does not disclose that Ghermezian presented any proposed dismissal of its claims against Padua to the court for filing. What’s more, Padua requested that Ghermezian file a dismissal in favor of Padua but Ghermezian refused. Under these circumstances, Ghermezian cannot now avoid sanctions by claiming the dismissal was “ministerial.”
Lastly, to the extent Ghermezian contends that Padua was somehow precluded from seeking sanctions because she had been part of a “settlement” of the case through the accepted section 998 offer, we reject the argument. Neither Padua nor her attorney was involved in presenting the section 998 offer (which was made by Ruiz, who was jointly represented with Emrani by
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another attorney), and Padua’s assent to the offer was not required.
b. The viability of Ghermezian’s first three claims was not relevant to the sanctions motion.
Ghermezian next contends the trial court failed to analyze whether the first three claims in its complaint—breach of contract, declaratory relief, and quantum meruit—had merit. This argument is specious because none of these claims was asserted against Padua. Ghermezian contends the claims were asserted against the Doe defendants, which would include Padua. Not so. As noted, the captions for the claims referred to Ruiz and the Doe defendants, but the claims themselves did not include any allegations against the Doe defendants. Furthermore, the context makes clear the claims were intended to be asserted against Ghermezian’s former client Ruiz and there is no basis to construe them as relating to any conduct by Padua. The breach of contract claim was premised on alleged breaches of Ghermezian’s retainer agreement with Ruiz. The declaratory relief claim sought a determination of the respective rights of Ghermezian and Ruiz related to Ghermezian’s compensation. The quantum meruit claim was premised on services provided by Ghermezian to Ruiz and Ruiz’s agreement to pay, and the quantum meruit theory is the established measure of recovery by an attorney against a former client under the circumstances presented here. (Fracasse v. Brent (1972) 6 Cal.3d 784, 786.)
c. The claims against Padua were baseless.
Ghermezian next contends it had a reasonable basis to pursue the claims it did assert against Padua: unjust enrichment, money had and received, conversion, and intentional interference with contractual relations. We disagree.
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At the outset, we reject Ghermezian’s contention that it was “only required to raise an objectively reasonable possibility that [Emrani] or Padua had liability.” (Italics added.) The sanctions motion concerned the claims asserted against Padua as an individual. Although Emrani, as Padua’s employer, could be held vicariously liable for wrongful conduct by Padua, the reverse is not true—Padua could not be held vicariously liable for conduct by Emrani. “Only an agent’s own tortious conduct subjects the agent to liability . . . . An agent is not subject to liability for torts committed by the agent’s principal that do not implicate the agent’s own conduct; there is no principle of ‘respondeat inferior.’ Likewise, an agent is not subject to liability for torts committed by the agent’s predecessor or coagent.” (Rest.3d Agency, § 7.01, com. d.)
There was no evidence that Padua took any actions that could have subjected her to personal liability. Padua’s name was not on the settlement check (the check was made out to Emrani and Ruiz), she did not personally receive the check or decide what would happen to it upon receipt by Emrani, and she did not receive any portion of the settlement funds. Ghermezian has failed to demonstrate any factual basis for its claim for money had and received which required a showing that Padua personally received money that Ghermezian had rights to. (Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 937 [a claim for money had and received “ ‘lies wherever one person has received money which belongs to another, and which in equity and good conscience should be paid over to the latter’ ”].)7
7 Ghermezian also pleaded a claim for unjust enrichment against Padua. We have previously held “unjust enrichment is
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There was also no factual basis for Ghermezian’s claims against Padua for conversion or intentional interference with contractual relations. “ ‘Conversion is the wrongful exercise of dominion over the property of another.’ [Citation.] Proof of conversion requires a showing of ownership or right to possession of the property at the time of the conversion, the defendant’s conversion by a wrongful act or disposition of property rights, and resulting damages. [Citations.] ‘Money can be the subject of an action for conversion if a specific sum capable of identification is involved.’ ” (Avidor v. Sutter’s Place, Inc. (2013) 212 Cal.App.4th 1439, 1452.) “To prevail on a cause of action for intentional interference with contractual relations, a plaintiff must plead and prove (1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant’s knowledge of that contract; (3) the defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” (Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1148.) There
not a cause of action.” (Jogani v. Superior Court (2008) 165 Cal.App.4th 901, 911; see also Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1132; Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793.) “ ‘The phrase “[u]njust [e]nrichment” does not describe a theory of recovery, but an effect: the result of a failure to make restitution under circumstances where it is equitable to do so.’ [Citation.] Unjust enrichment is ‘ “a general principle, underlying various legal doctrines and remedies,” ’ rather than a remedy itself. [Citation.] It is synonymous with restitution.” (Melchior, at p. 793.) If we construe the unjust enrichment claim as one for restitution, no facts suggest Padua individually received any item of value which she needed to restore to Ghermezian.
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was no evidence that Padua personally exercised any control over the settlement funds or took any action that interfered with Ghermezian’s interest in the funds or was inconsistent with Ghermezian’s right to a portion of the money.
Furthermore, even if Ghermezian could have developed evidence that Padua took some part in having the settlement funds deposited into Emrani’s client trust account or had the ability to stop the funds from being deposited, there is no evidence that placing the money into the account was wrongful, interfered with Ghermezian’s interest in the funds, or was inconsistent with Ghermezian’s right to a portion of the money.8 The undisputed evidence showed that Emrani notified Ghermezian it had received the settlement funds, acknowledged Ghermezian’s right to a portion of the funds, and requested Ghermezian to provide information bearing on the value of Ghermezian’s claim. Furthermore, by depositing the funds into its client trust account, Emrani was obligated under the Rules of Professional Conduct to resolve Ghermezian’s fee claim before disbursing any fees to itself. (Cal. Rules Prof. Conduct, rule 1.15(c)(2) [“if a client or other person disputes the lawyer or law firm’s right to receive a portion of trust funds, the disputed
8 As Padua points out, Ghermezian had not established the value of his fee claim, i.e., the reasonable value of his services, which he could only do by litigating the issue with his client, Ruiz. (Mojtahedi v. Vargas (2014) 228 Cal.App.4th 974, 978.) Thus, although Ghermezian arguably had a right to a portion of the settlement funds, that portion was undetermined. As a result, Emrani was not withholding from Ghermezian a specific amount of money which it knew Ghermezian had a right to obtain.
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portion shall not be withdrawn until the dispute is finally resolved”].)
Ghermezian contends it was improper for Emrani to deposit the settlement funds into its client trust account because Emrani controlled the account, and that this somehow supported a claim for damages against Padua individually. But for the reasons just discussed, there was no evidence that by placing the funds into that account Emrani was disregarding Ghermezian’s rights to a portion of the money. Ghermezian relies on Miller v. Rau (1963) 216 Cal.App.2d 68 and Kaiser Foundation Health Plan, Inc. v. Aguiluz (1996) 47 Cal.App.4th 3029 but those cases are inapposite because the courts held attorneys could be liable for disbursing funds to their clients without protecting third parties’ interests in the money. No such disbursement occurred here.10
9 The case was disapproved by Snukal v. Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754, 775 and footnote 6 on grounds not relevant here.
10 Ghermezian cites several additional cases which are similarly unavailing. (See Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1508 [observing a conversion claim might have been viable “[i]f [the trustee] had disbursed the funds to an improper party . . . with knowledge that another claimant had lawful contractual rights to the proceeds”]; Siciliano v. Fireman’s Fund Ins. Co. (1976) 62 Cal.App.3d 745, 753 [insurer paid settlement funds directly to the claimant without paying the claimant’s former attorney]; Weiss v. Marcus (1975) 51 Cal.App.3d 590, 595-596 [attorney received and disbursed settlement funds to the claimant without paying the claimant’s former attorney]; McCafferty v. Gilbank (1967) 249 Cal.App.2d 569, 574 [attorney cashed two settlement checks and paid the
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Lastly, Ghermezian contends without any analysis or support that the settlement check should have been endorsed to Ghermezian or Ghermezian should have been included as a payee. What this has to do with Padua is unexplained, and in any event this argument is meritless. Endorsing the check to Ghermezian was not a viable option because Ruiz, the client, had an undisputed right to a portion of the money. Nor does Ghermezian articulate any arguable legal basis to impose on Padua an affirmative obligation to have Ghermezian included as a payee on the check.
d. Ghermezian’s procedural arguments lack merit.11
Ghermezian contends that the trial court erred in granting Padua’s sanctions motion because the motion was filed 15 court days before the hearing instead of the required minimum of 16 court days. (§ 1005, subd. (b).) Section 1005 does not establish an inflexible 16-court-day period; instead, “[t]he court, or a judge
proceeds out to himself, his client and others, but not to the client’s former wife who held an equitable lien on the settlement funds].)
11 Although Ghermezian raises these arguments in its reply, we consider in the text those that respond to points raised in the respondents’ briefs. Ghermezian also contends that the trial court should have denied Padua’s sanctions motion because Padua included additional materials with her trial court reply. Ghermezian did not present this argument to the trial court and did not raise it in this court until its reply brief (and not in response to any argument made by Padua), and he has therefore forfeited it. (Varjabedian v. City of Madera, supra, 20 Cal.3d at p. 295, fn. 11; Greenwich S.F., LLC v. Wong, supra, 190 Cal.App.4th at p. 767.)
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thereof, may prescribe a shorter time.” (Ibid.) As the trial court found, Padua submitted the motion for filing on the correct date and the clerk’s office should have filed it that day. Furthermore, Ghermezian has not shown it was prejudiced in any way by the one-day delay in the filing of the motion. Padua timely served Ghermezian with the motion, and Ghermezian was afforded the full 21-day safe harbor period to consider that motion before the clock began to run on the time to file an opposition. Additionally, the court on its own motion continued the hearing first to January 9 and then to January 27, 2025, with the result that the motion was filed two months before it was heard. (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at p. 800.)12 Ghermezian also contends the trial court erred in granting the sanctions motion because Padua did not serve a conformed copy of her motion when she filed it, i.e., in addition to the copy she served on Ghermezian to initiate the 21-day safe harbor period. Section 128.7 does not require a moving party to serve its motion a second time upon filing it. Ghermezian relies on Hart v. Avetoom (2002) 95 Cal.App.4th 410, but the court in that case only held that a party moving for sanctions under section 128.7 must file the same motion papers it initially served before the
12 Ghermezian relies on a recently published Court of Appeal decision, J.N. v. Goldberg (2026) 120 Cal.App.5th 544, but that case is inapposite. The court held that a sanctions motion was defective because the moving party failed to identify a hearing date on the copy of the motion initially served on the opposing party. (Id. at pp. 549-550.) Here the sanctions motion Padua served on Ghermezian identified the hearing date. We deny Ghermezian’s request to file additional briefing regarding this new case authority.
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safe harbor period. (Hart, at p. 414.) Ghermezian does not claim that the motion papers Padua filed were different than those she served.
DISPOSITION
The judgment of dismissal in favor of Emrani and the order awarding sanctions in favor of Padua and against Ghermezian are affirmed. Respondents are awarded their costs on appeal.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
M. KIM, J.