Case3:10-cv BZ Document44 Filed08/24/11 Page1 of 6

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1 0 Broadway, Suite 0, Oakland, California Tel. ( -; Fax ( - Case:-cv-0-BZ Document Filed0// Page of VERNON C. GOINS II (SBN YASMIN GILANI (SBN 00 TAYLOR, GOINS & STALLWORTH LLP 0 Broadway, Suite 0 Oakland, CA Telephone: ( - Facsimile: ( - vgoins@thebusinesslawyers.com Attorneys for Defendant LATRELL SPREWELL UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ZACKS & UTRECHT, P.C., a California Professional Corporation, v. Plaintiff, LATRELL SPREWELL, and DOES -, Defendants. No. C--0 BZ DEFENDANT LATRELL SPREWELL S Date: September, Time: :0 a.m. Department: TBA; report to Rm. - Judge : Trial Date: None Set Defendant LATRELL SPREWELL ( Defendant hereby respectfully submits the following Trial Brief: INTRODUCTION Plaintiff Zachs & Utrecht, P.C. ( Law Firm seeks to recover attorneys fees, costs and expenses provided to Defendant Sprewell in connection with an action for Negligence, Indemnity and Breach of Fiduciary Duty against Mr. Sprewell s former real estate broker. Mr. Sprewell s defense is that there is no written legal services agreement governing the services (Northern District of California Case No. C--0 BZ - -

2 0 Broadway, Suite 0, Oakland, California Tel. ( -; Fax ( - Case:-cv-0-BZ Document Filed0// Page of rendered by the Law Firm, as required by law. Additionally, the legal services provided by the Law Firm fell below the standard of care of a reasonable attorney. STATEMENT OF FACTS a. The Underlying Matter: Rahimi v. Sprewell The Underlying Action arose from damages sustained by Defendant Sprewell that resulted from an arbitration award, made against Defendant Sprewell and in favor of Gulalai Rahimi, in connection with the sale of Defendant Sprewell s residence commonly known as 0 Greenhaven Road, Hayward, California (hereinafter Subject Property to Rahimi. In, Jurjevic, a broker for Prudential, listed the Subject Property for sale on behalf of the owners prior to Defendant Sprewell. Defendant Sprewell purchased the Subject Property, and, in or about, Defendant Sprewell discovered that the carpet in the basement was wet. Defendant Sprewell notified Jurjevic of the water intrusion problem, and Jurjevic proceeded to purchase a sump pump and obtain a bid for repairs necessary to prevent further water intrusion into the basement. Defendant Sprewell experienced no further water intrusion issues in or around the Subject Property after this. In the summer of, Defendant Sprewell listed the Subject Property for sale. Jurjevic represented Defendant Sprewell, and obtained a listing for the Subject Property. Kristanjson aided in the listing and completion of the necessary documents to complete the sale of the Subject Property. Jurjevic thereafter completed a Transfer Disclosure Statement (hereinafter TDS that failed to disclose the existence of a sump pump on the Subject Property and marked No in the section inquiring whether there was flooding, drainage or grading problems. Defendant Sprewell signed the TDS on February,. On February,, Jurjevic signed an Agent s Inspection Disclosure of the TDS, omitting the same information and certifying that she had physically inspected the Subject Property. On February,, water seeped into the basement and damaged the carpet. Kristjanson discovered this and notified Jurjevic. Jurjevic worked with Kristjanson to remove the wet carpet from the basement. Jurjevic failed to amend Section III of the TDS. Over the (Northern District of California Case No. C--0 BZ - -

3 0 Broadway, Suite 0, Oakland, California Tel. ( -; Fax ( - Case:-cv-0-BZ Document Filed0// Page of period of the listing of the Subject Property, Jurjevic handled the listing of the Subject Property, and Defendant Sprewell was out of state and rarely spoke to her. Escrow closed on the Subject Property in June. On January, 00, Rahimi discovered water in the basement of the Subject Property. Rahimi was forced to expend $,000 on a contractor who was unable to cure the water intrusion problem. On July, 0, Rahimi filed a lawsuit in Alameda County Superior Court, case number 0, alleging that Defendant Sprewell either intentionally or negligently failed to disclose the water intrusion problem. The arbitration award, among other things, determined that Jurjevic s actions were contrary to the accepted industry practice in the residential real estate brokerage community. Furthermore, the arbitrator found that the Transfer Disclosure Statement was prepared by Appellants and failed to disclose instances of water intrusion to Rahimi, who thereafter purchased the Subject Property and experienced substantial water intrusion problems. Law fim represented Sprewell in this matter. There is no dispute b. Sprewell v. Jurjevic On March, 0, Sprewell filed a complaint for damages against Nina Jurjevic (hereinafter Jurjevic and Mason-McDuffie Real Estate Inc. dba Prudential California Realty (hereinafter Prudential (hereinafter collectively referred to as Defendants, where applicable for Equitable Indemnity, Declaratory Relief, Breach of Fiduciary Duty and Negligence. The Law Firm and Sprewell did not enter into a legal services agreement for this action. There was no written agreement reached pertaining to legal fees and billing practices. There was no agreement reached relating to costs or expenses associated with the Action. Other than written discovery, the Law Firm did not engage in any discovery. It did not take one single deposition of any party, including but not limited to the named experts. Additionally, it failed to secure a key stipulation from opposing counsel to stipulate to the discovery obtained in the Underlying Action to be used in the Action. /// (Northern District of California Case No. C--0 BZ - -

4 0 Broadway, Suite 0, Oakland, California Tel. ( -; Fax ( - Case:-cv-0-BZ Document Filed0// Page of LEGAL POSITION a. Plaintiff Is Not Entitled To Attorney s Fees Because of the Non Existence of A Legal Services Agreement. California Business and Professions Code Section (a states At the time the contract is entered into, the attorney shall provide a duplicate copy of the contract signed by both the attorney and the client, or the client's guardian or representative, to the client or to the client's guardian or representative. The written contract shall contain all of the following: ( Any basis of compensation including, but not limited to, hourly rates, statutory fees or flat fees, and other standard rates, fees, and charges applicable to the case. ( The general nature of the legal services to be provided to the client. ( The respective responsibilities of the attorney and the client as to the performance of the contract. According to Business and Professions Code Section (c, failure to comply Business and Professions Code Section (b renders the agreement voidable at the option of the client, and the attorney shall, upon the agreement being voided, be entitled to collect a reasonable fee. Here, Plaintiff did not enter into a written agreement as required under the law. As a result, Mr. Sprewell had no advance notice of the scope, conditions and terms of the legal services agreement. b. Plaintiff s Legal Services Fell Below The Standard of Care Negligence requires a showing that Plantiff breached a duty of care owed to the Defendant. (Richards v. Stanley ( Cal.d 0, ; see also Valdez v. J.D. Diffenbaugh Co.( Cal.App.d, 0. The duty requirement is an obligation recognized by law, requiring the actor to conform to a certain standard of conduct for the protection of others against unreasonable risk. (Prosser Keaton on Torts, th ed., ch. Sec. 0, p. ; Hilyar v. Union (Northern District of California Case No. C--0 BZ - -

5 0 Broadway, Suite 0, Oakland, California Tel. ( -; Fax ( - Case:-cv-0-BZ Document Filed0// Page of Ice ( Cal. d 0, -;see also Peter W. v. SFUSD ( 0 Cal.App.d,. The relationship of attorney and client is usually created by contract. The contract may be express or implied, and the general rules of agency apply. Houston Gen. Ins. v. Superior Court (0 Cal.App.d,. Here, Plaintiff s services fell below the standard of care when Plaintiff failed to, among other things: properly include a cause of action for breach of contract in the underlying action. Failing to conduct discovery in a proper manner by, among other things, failing to depose any of the defendants. Failing to obtain a court order or stipulation for the use of exhibits, discovery and other evidence in the previous case decided by arbitration. Failing to conduct expert discovery in a timely manner. c. Plaintiff s Request For Attorney s Fees Is Unreasonable. The determination of what constitutes reasonable attorney s fees is committed to the sound discretion of the court. Westside Community for Independent Living, Inc. v. Obledo ( Cal.d,. The trial court has expertise of its own in the matter of the value of legal services performed. Melnyk v. Robledo ( Cal. App. d,. The court may consider pleadings and depositions in the court files as evidence of the actual work performed. Dover Mobile Estates v. Fiber Form Products, Inc. (0 Cal.App.d, 0. A fundamental factor to be considered by the court in its determination of reasonable attorney's fees is a compilation of the time spent and reasonable hourly compensation of each attorney. Serrano v. Priest ( Cal.d, -. (Northern District of California Case No. C--0 BZ - -

6 0 Broadway, Suite 0, Oakland, California Tel. ( -; Fax ( - Case:-cv-0-BZ Document Filed0// Page of Several of the costs claimed by the Law Firm are not reasonable and were not necessary for the conduct of this litigation, and were merely for the convenience of Defendants and their counsel. Others were not in fact incurred. Defendant Sprewell submits that a substantial amount of costs claimed by the Law Firm were neither necessary for the conduct of his case, nor are they reasonable. $0,000 for a case involving practically no discovery or trial work is unreasonable. CONCLUSION For all of the reasons above, Defendant should prevail against plaintiff on all causes of action. Dated: August, GOINS & ASSOCIATES, PLC /s/ Vernon C. Goins II a VERNON C. GOINS II Attorneys for Defendant LATRELL SPREWELL (Northern District of California Case No. C--0 BZ - -