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John Kenneally, On Behalf of Himself and v. Bosa California LLC

May 26, 2011

JOHN KENNEALLY, ON BEHALF OF HIMSELF AND ALL OTHER SIMILARLY SITUATED, PLAINTIFF,
v.
BOSA CALIFORNIA LLC, AND BOSA DEVELOPMENT CALIFORNIA INC., DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the Ex Parte Application to Strike, Quash and/or Expunge Attorney Lien filed by Plaintiff. (ECF No. 63).

BACKGROUND

On September 18, 2009, Plaintiff John Kenneally ("Plaintiff"), a citizen of California, represented by attorney Gregory Weston ("Weston"), a California attorney, filed a Complaint against Defendants First American Title Co. ("First American"), a California corporation, Bosa California LLC and Bosa Development California Inc. (collectively "Bosa"), California limited liability companies, as well as Bank of Nova Scotia, a Canadian corporation, and HSBC Bank USA N.A., a Virginian corporation (collectively, "Lenders") (ECF Nos. 1, 3). On November 18, 2009, Plaintiff filed an Amended Complaint against Defendants. (ECF No. 3). Plaintiff alleged that Bosa fraudulently misrepresented the square footage of a condominium, located in San Diego, California, that Plaintiff purchased the property and that the discrepancy in measurement greatly reduced the value of the property. (ECF No. 3 at 13-16).

Between December 23, 2009 and January 4, 2010, Jared H. Beck of the firm Beck & Lee Business Trial Lawyers ("Beck"), an attorney admitted to the State Bar of California and the State Bar of Florida, and Weston exchanged emails which Beck states "memorialize[d] the agreement for [Beck] to serve as Plaintiff's counsel" in this action. (ECF No. 68-1 at 2). An email dated December 23, 2009, from Weston to Beck states "I'd love to add you .... Have a look at the complaint first and let me know via email before I file." (ECF No. 68-2 at 2). An email dated January 4, 2010, from Beck to Weston states "OK I read through this, well written complaint, happy to co-counsel on this - same terms as [another case] (split hrs)?" Id. An email dated January 4, 2010, from Weston to Beck replies, "Great, I will file a notice of appearance today then...." Id.

On January 4, 2010 and on January 5, 2010, Beck filed a Notice of Appearance as attorney for all Plaintiffs*fn1 and provided his State of California Bar number and an address located in Florida. (ECF Nos. 25, 29).*fn2

On April 28, 2010, this Court granted in part and denied in part a Motion to Dismiss filed by Defendant Bosa and granted the Motions to Dismiss filed by First American and the Lenders. (ECF No. 54). On May 12, 2010, Defendant Bosa filed an Answer. (ECF No. 55).

A letter from Weston to Beck dated August 12, 2010, states, "I write to inform you that my client, John Kenneally, does not consent to you representing him in [this case], or any other matter." (ECF No. 63-4 at 2).

A letter from Beck to Weston dated September 21, 2010, provides a copy of the Notice of Charging Lien at issue in this case. The Notice of Charging Lien asserts that Beck "represented" Plaintiff Kenneally in this action beginning approximately December 23, 2009, "pursuant to: (1) an express or implied contract between attorney and client; and (2) an express or implied understanding for payment of attorney's fees out of the recovery." (ECF No. 63-2 at 3).

On October 14, 2010, Magistrate Judge Adler issued an Order stating: "Plaintiff John Kenneally ('Plaintiff') and the remaining defendants [Bosa California LLC and Bosa Development California Inc.] in this case have reached a settlement of Plaintiff's individual claims in this matter. Accordingly, a joint motion for dismissal shall be filed with the Court ...." (ECF No. 62 at 1).

On October 19, 2010, Plaintiff filed an Ex Parte Application to Strike, Quash and/or Expunge Attorney Lien. (ECF No. 63).

On October 20, 2010, Beck filed a complaint in a Florida state court, asserting three claims: (1) breach of contract; (2) quantum meruit; and (3) adjudication and imposition of attorney's charging lien. (ECF No. 64-2 at 2).

On October 25, 2010, Beck filed an Opposition to Plaintiff's Ex Parte Application contending that this Court lacked jurisdiction over this lien dispute. (ECF No. 64).

On March 10, 2011, Plaintiff filed a Notice of Related Cases Pursuant to Civil Local Rule 40.1(E). (ECF No. 66). Plaintiff identified related cases including the Florida state court case filed by Beck on October 20, 2010, and First American Title Insurance Co. v. Kenneally et al, 11cv264 WQH (JMA), (filed Feb. 8, 2011). First American Title Insurance Co. is a complaint for statutory interpleader against Kenneally, Bosa ...


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