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Plummer v. Day/Eisenberg

April 26, 2010


Appeal from a judgment of the Superior Court of Orange County, James J. Di Cesare, Judge. Reversed and remanded with directions. (Super. Ct. No. 07CC05089).

The opinion of the court was delivered by: Ikola, J.



Plaintiff Mark B. Plummer, an attorney, appeals from a judgment entered after the court granted summary judgment to defendant Day/Eisenberg, LLP, a law firm. Plummer alleged Day/Eisenberg converted or interfered with settlement funds recovered in a personal injury action handled by Plummer, Day/Eisenberg, and another law firm, Bisom & Cohen. The court granted summary judgment because it found Plummer had no direct contractual relationship with the clients and thus lacked an immediate right to possess the settlement funds.

We reverse the judgment and remand. Triable issues exist on the elements of conversion. Most notably, triable issues exist whether Plummer had an immediate right to possess the settlement funds through an attorney's lien. Day/Eisenberg fails to show Plummer's claimed lien is invalid as a matter of law. And triable issues also exist on the interference cause of action.


Allegations Made in First Amended Complaint

Plummer agreed with attorneys Andrew Bisom and Isaac Cohen in March 2003 to represent the Acosta family in the underlying personal injury suit. They orally agreed "[Cohen] and [Bisom] would finance the prosecution of the case and provide secretarial and support services, [Plummer would] act as Counsel, the fees would be slip [sic] 50% to [Plummer] and 50% to [Cohen] and [Bisom], and that [the law firm] Bisom & Cohen would represent the Acosta Family with [Plummer] acting as Of Counsel."*fn1 The clients executed a two-page retainer agreement by which they "acknowledged that [Plummer] would be working on their case, that [Plummer] would be receiving 50% of the total fees, and granted [Plummer] an independent Lien on their recovery to secure those fees."

Bisom & Cohen allegedly forced Plummer out of the case in April 2004, after he worked on it for over a year. They took possession of the case file and prevented him from performing his agreed-upon duties. Plummer notified defense counsel in the underlying case about his lien and asked to be named a payee on any settlement check.

In May 2006, defense counsel told Plummer the case was settling for $1 million. Plummer waited for a month to receive his attorney fees from Bisom or Cohen. Plummer then contacted defense counsel, who stated the settlement check named Plummer as a payee and had been sent to Day/Eisenberg.

Allegedly, Bisom, Cohen, and Day/Eisenberg either "forged" Plummer's endorsement on the settlement check or otherwise "wrongfully negotiated" it to retain all of the attorney fees, despite their knowledge of his lien. Bisom presented the check to Bank of America in July 2006, which negotiated it without Plummer's endorsement.

Plummer asserted causes of action against Day/Eisenberg for conversion and interference with prospective economic advantage. He also asserted a cause of action for conversion against Bank of America. Finally, he asserted causes of action for conversion, interference, and constructive fraud against Bisom and Cohen.

The Summary Judgment

In its summary judgment motion, Day/Eisenberg contended the conversion cause of action failed as a matter of law because Plummer did not perfect an enforceable attorney's lien on the settlement funds. It reasoned Plummer did not therefore own or have a right to possess the settlement funds.

Day/Eisenberg relied upon the two-page Bisom & Cohen retention agreement. The first page of the retention agreement provides, "The undersigned ("CLIENT") hereby employs Bisom & Cohen, LLP ("ATTORNEY") to represent CLIENT" in the underlying case. It further provides, "CLIENT assigns ATTORNEY a lien of THE CONTINGENCY PERCENTAGE(S) IDENTIFIED IN THE RETAINER WITH [yet another law firm] regardless of whether such Gross Recovery is by way of settlement, judgment or other method."*fn2 It further provides, "ATTORNEY, at his discretion, may associate other counsel at ATTORNEY'S expense." The clients signed at the bottom of the page, as did Plummer over the name "Mark B. Plummer, Of Counsel."

The second page of the retention agreement is entitled "ACKNOWLEDGMENT OF ASSOCIATION." It provides in full: "The undersigned acknowledges and agrees that although they are ostensibly retaining the Law Firm of Bisom & Cohen, LLP to represent them, that [Plummer] will [be] working on the case in the capacity of `Of Counsel' and will be receiving 50% of any and all legal fees derived from the representation. (This does not increase the total amount of fees.) The undersigned grants The Law Offices of Mark B. ...

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