The Dominguez Firm v. Victor James DeSimone, et al.

The second motion in limine is even worse. It asks the Court to bar the entire action or entire causes of action because of the statute of limitations. These motions are plainly, obviously, and unquestionably motions for summary judgment or adjudication in disguise. They are improper. For that reason, they are denied.

Guidance For the Parties With that said, given the relatively complex nature of this action, the Court provides some guidance for the parties. To be clear, the Court is not making any rulings or orders concerning these issues, let alone final rulings. The Court simply provides the Court’s understanding of the current state of the law that applies to the action, so that the parties can understand the Court’s current views and productively and efficiently marshal their evidence for trial. The Court hopes that the parties find the analysis below useful.

1. Quantum Meruit In the Court’s view, whether or not the Dominguez Firm is limited to a “quantum meruit’ recovery in the action is of secondary importance. Even if it is, an award of quantum meruit (or an award based on an unjust enrichment theory) can be based on the reasonable value of a referral fee. Thus, the amount that the Dominguez Firm could recover in the action will be based upon the reasonable value of a referral fee. Defendants offer no citation whatsoever, and no serious argument, to the contrary.

As the Dominguez Firm points out, California caselaw has explicitly recognized the value of an attorney referral fee and explained that the particular value of a referral fee may be awarded in quantum meruit. (Hance v. Super Store Industries (2020) 44 Cal.App.5th 676, 694 [“in assessing the value of an attorney’s services to the client . . .the trial court may consider the reasonable value to the client . . . of the referral.”].) That Hance dealt with class actions and not the precise situation here makes no difference.

Its analysis explains why, given California’s recognition that attorneys may be paid for referral fees, an award of referral fees may be appropriately recovered in quantum meruit.

Moreover, in the Court’s view, precisely the same analysis would apply to an award based on unjust enrichment. Accordingly, what the reasonable value of the referral in this particular case was will likely be the central question for trial. The Dominguez Firm, for example, can bring in evidence that 25% of a total recovery is a standard and appropriate referral fee. By contrast, the Defendants can argue that a 25% referral fee on the facts here is inappropriate given the ethical issues with Mr. Layton the attorney to whom the Dominguez firm referred the action. Such a trial brings this action well within the standard for actions seeking quantum meruit recovery, and should not be overly difficult to present to a jury.

2. Litigation Privilege The Court notes that the Dominguez Firm has now provided a very useful’and in the Court’s view very significant’clarification of its theory of case. The Dominguez Firm has now expressly stated that it “does not intend to argue at trial that DeSimone and Bohm’s independent wrongful act underpinning the interference and fraud claims was that they “stole’ the Villegases from TDF.” (Opposition to Motion in Limine No. 1 at p. 9.) It has further explained that the theory of the case it intends to argue at trial is that “DeSimone and Bohm are liable for intentional and negligent interference, fraud, conversion, and unfair business practices’ because they knew that TDF had a lien for a referral fee, ignored the lien, arranged with Lewis Brisbois to pay only Defendants, failed to disclose to the Dominguez Firm that they had received settlement funds, and then disbursed the disputed portion of the funds even after the Dominguez Firm advised them of the dispute. (Opposition to Motion in Limine No. 1 at p. 9.)

Put differently, the Dominguez Firm’s theory of the case is now about Defendants’ frustration of its attempts to collect on an attorney lien This is a useful and significant narrowing of the case.

In essence, the Dominguez Firm’s current shift in focus means that the core issues on each cause of action will be the same core issues to be decided on the quantum meruit and unjust enrichment claims. Was the Dominguez Firm reasonably entitled to a referral fee, in quantum meruit or otherwise? If so, either the Dominguez Firm or the Villegas must pay that fee to the Dominguez Firm; if not, not. While each cause of action (of course) has its own elements, the overall theory of the case is now clear.

Given that theory of the case, the Court addresses some subsidiary issues. First, while the Court does not issue a final ruling on this issue, the Court notes that it appears unlikely that the Dominguez Firm can maintain causes of action for intentional or negligent interference with contract. The contracts at issue are two fee agreements between the Villegas family and the Dominguez Firm. As the Court has already ruled, the Villegas family had an absolute right to discharge the Dominguez Firm’and thus breach those contracts’at any time.

The Villegas family did so. True, as the Court explained in ruling on summary judgment, the Villegas family’s privilege to breach these contracts does not preclude, under California law, an action against other defendants for inducing that breach. But that is now not the Dominguez Firm’s theory of the case. The Dominguez Firm has expressly disclaimed such a theory. Since the Dominguez Firm’s theory of the case is now not that the Defendants wrongfully induced the Villegas family to discharge the Dominguez Firm, it does not seem like the Dominguez Firm can prevail on a tortious interference with contract claim.

At a minimum, it would seem that causation cannot be demonstrated. The current theory centers on Defendants’ failure to honor the Dominguez Firm’s lien and their interference with an attempt to collect on the lien. But even if the Dominguez Firm is right about its current theory, the Villegas family could have breached (and did breach) the relevant contracts regardless of any lien, by discharging the Dominguez Firm as attorneys. Thus, it is difficult for the Court to see how the interference with contract claims could survive.

Second, a claim for tortious interference with prospective economic advantage does appear still viable. Actions for interference with prospective economic advantage based on interference with an attorney lien are well-established under California law. (Hood v. Gonzales (2019) 43 Cal.App.5th 57, 76 [“A discharged attorney may state a cause of action for intentional interference with prospective economic advantage where a third party with notice of a lien for attorney fees pays the former client in settlement of the case without acknowledging the lien. . . .A litigant's former attorney is entitled to recover the reasonable value of services rendered to the time of discharge, but the right to such recovery does not ripen until the litigant prevails.”].)

That would appear to precisely describe the Dominguez Firm’s current theory of the case. In addition, as the Court explained on summary judgment, the Dominguez Firm has made enough of a showing of the independent wrongful act element of a claim for tortious interference with prospective economic advantage claim to bring that issue for trial.

Third, the Dominguez Firm’s current theory does not appear to be barred by the litigation privilege under current caselaw. As the Dominguez Firm correctly argues, the litigation privilege may bar actions between attorneys over a fee dispute when the conduct giving rise to the dispute is itself privileged. (Olsen v. Harbison (2010) 191 Cal.App.4th 325, 335-226.) But that is not this case. Rather, the Dominguez Firm’s current theory of the case does not rely on statements or actions taken by the Defendants in connection with the underlying Villegas litigation. Rather, it rests entirely on Defendants’ attempts to prevent the Dominguez Firm from collecting on the lien. As discussed above, that is a well-recognized theory of litigation under California law. It does not necessarily rely on any statement made in the course of the litigation.

Fourth, the defense of the Dominguez Firm’s theory of the case does not appear to require any violation of attorney-client privilege by the Defendants. The focus of the claim as currently framed is not attorney-client communications. Rather, the claim is now focused on whether (and to what extent) the Dominguez Firm is entitled to recover reasonable compensation for its referral work. The evidence relevant to that question is largely (if not entirely) non-privileged. For example, information about whether 25% referral fees (or some lesser number) are standard practice within the industry is not privileged.

Nor is information about ethical violations in other cases that pertain to the attorneys to whom the Dominguez Firm referred the case. Only information regarding unethical behavior of Mr. Layton in this case might (or might not) require disclosure of privileged materials. Whether and to what extent such materials would be disclosed, whether Defendants want to disclose such materials, and the waiver effect of such disclosure, is not apparent to the Court on this record. What evidence may be introduced may need to be the subject of further argument or in limine practice based on the parties’ current understanding of the case.

Fifth, the Court notes that the litigation privilege is not an evidentiary privilege. The litigation privilege “does not apply to noncommunicative conduct and does not bar the evidentiary use of privileged communications in otherwise allowable actions.” (Doctors' Co. Ins. Servs. v. Superior Ct. (1990) 225 Cal.App.3d 1284.) Put differently, it “operates as a limitation on liability, not an exclusion of evidence.” (Id.) Thus, to the extent that the Dominguez Firm’s general theory of liability is not barred by the litigation privilege (and the Court does not believe that it is barred) evidence can be introduced at trial regardless of whether or not it is “litigation privileged.”

3. Attorney-Client Privilege As noted, the Dominguez Firm’s current theory of the case does not appear to be barred because it cannot proceed without forcing Defendants to violate the attorney-client privilege. Whether any particular piece of evidence should be excluded as a privileged will need to be the subject matter of separate motions.

4. Statutes of Limitations Equally, the Dominguez Firm’s current theory of the case does not appear to be barred by any applicable statute of limitation. (E.g. Hood v. Gonzales, supra, 43 Cal.App.5th at 76 [“A litigant's former attorney is entitled to recover the reasonable value of services rendered to the time of discharge, but the right to such recovery does not ripen until the litigant prevails.”].) The claim on the lien could only ripen after the Villegas family settled the underlying litigation.

5. General Thoughts In general, the case as it now stands appears to be far narrower than that pled in the Complaint or argued on summary adjudication. As more narrowly conceived, there appears to be no fundamental problem with the case that would make it legally non-viable. Of course, whether a jury will find liability or award damages or an award of quantum meruit is a fact issue for the trier of fact. Again, and to emphasize, the Court provides this analysis only to inform the parties of the Court’s current thinking and to help facilitate trial preparation. This analysis is not a ruling, much less a dispositive ruling, on any issue. The Court hopes that the parties find the foregoing analysis useful.

CONCLUSION: Defendants? Motion in Limine No. 1 is DENIED. Defendants? Motion in Limine No. 2 is DENIED. The Court provides further discussion of evidentiary and other case issues. That further discussion is intended only to assist the parties in trial preparation. The further discussion is not a formal order or binding ruling on any issue. Moving Parties to give notice. IT IS SO ORDERED. Dated: May 22, 2026 ___________________________________ Nicholas F. Daum Judge of the Superior Court Home -->)" -->