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Ninth Circuit:
Out-of-State Lawyer to Receive No Part of $4 Million Fee
Panel Finds Faultiness of Pleading Precludes Day in Court
By a MetNews Staff Writer
A Detroit lawyer who bills himself as a “Warrior for the People” has failed in his bid to persuade the Ninth U.S. Circuit Court of Appeals that he has been cheated by two California lawyers out of the two-thirds share he claims in a $4 million attorney fee garnered in an action stemming from the fatal shooting of a man by a San Bernardino sheriff’s deputy.
Friday’s decision, in a memorandum opinion, affirms the dismissal, without leave to amend, of a suit by Ernest L. Jarrett and his law firm against Victorville attorneys James S. Terrell and Sharon J. Brunner and their respective firms. Jarrett contends that he is entitled to roughly $2.67 million in attorney fees based on his role in the wrongful death case, and has been paid nothing.
The upshot is that he might have received $2 million if he had agreed at one point to a whittling of his share to half of the fee.
2015 Incident
The victim of the Nov. 19, 2015 fatal shooting in Barstow was Nathanael H. Pickett II, 29. His mother, a Michigan resident, contacted Jarrett, who specializes in police misconduct cases, to press for a criminal prosecution of the deputy, Kyle H. Woods.
Having persuaded his client, Dominic Archibald, to sue, an action was filed in the U.S. District Court for the Central District of California. Jarrett, who is not licensed to practice in California, gained pro hac vice status, with Terrell and Brunner to act as co-counsel.
Jarrett had a contract in writing with Archibald under which he was to receive half of any recover. Under an oral contract with local counsel, they would be handed one-third of his take.
Terrell and Brunner agreed to various conditions of employment, including incurring the obligation to keep Archibald—who experienced mood swings, stemming from Post Traumatic Stress Disorder—content with her representation.
Galipo Brought In
However, she became riled at Jarrett when he did not participate in a march in San Bernardino in protest to the shooting of her son, a march in which Terrell and Brunner did join. Archibald was under the impression that Jarrett absented himself because he was indulging in vacationing when, actually, he was recovering from surgery, though he did not communicate that to her.
After that, Terrell and Brunner sought Jarrett’s agreement that they would receive half of his share from the recovery. He did not agree, and they proceeded to secure Archibald’s consent to a lawyer of their choice—Dale K. Galipo—who would grant them a larger share, acting as lead counsel.
Jarrett was never substituted out, but Galipo took hold of the reigns. The case went to trial and a jury awarded $33.5 million to Archibald, comprised of $15.5 million in compensatory damages and $18 million in punitive damages.
Waiving its right to appeal, the county entered into a settlement with Archibald for $10 million.
Jarrett and his firm brought suit against Terrell and Brunner and their firms in state court in Michigan on Feb. 6, 2019, the defendants removed the action to the U.S. District Court for the Eastern District of Michigan; and the action was transferred to the U.S. District Court for the Central District of California.
District Court Judge Michael W. Fitzgerald dismissed the initial complaint with leave to amend but warned that further amendments would not be allowed and, on Jan. 13, 2021, he dismissed the amended complaint without leave to amend.
Contract Claim
The contract claim, based on the Victorville lawyers’ alleged failure to keep Archibald satisfied with the representation, fails, the judge declared, explaining:
“Simply put, Plaintiffs ask the Court to make the unwarranted inference that Defendants must have failed to help with Ms. Archibald’s mood swings because he was replaced as lead attorney. Unwarranted inferences are insufficient to state a claim at the motion to dismiss stage.”
Agreeing with the dismissal of the contract claim, the Ninth Circuit panel—comprised of Judges Daniel P. Collins, William A. Fletcher, and Ronald M. Gould—said:
“The oral fee-sharing agreement provided that Jarrett would transfer one-third of the fees from the wrongful death suit to Defendants upon payment by the client to Jarrett if the client prevailed. However, the client never paid Jarrett because she ‘replaced [him] as lead attorney’ in the early stages of the suit.”
Tortious Interference
Jarrett also alleged a tortious interference with his contractual relations with Archibald by wooing her from primary representation by him through an impermissible “solicitation” of representation in violation of the California Rules of Professional Conduct.
Fitzgerald put forth:
“To the extent that Plaintiffs are arguing that Defendants must have disparaged Plaintiffs because Jarrett was replaced as lead attorney, this argument is not persuasive. The [pleading] demonstrates that Ms. Archibald had sufficient motivation to replace Jarrett as lead attorney—she was upset that Plaintiff took two weeks off of work without explaining why….
“The Court determines that Plaintiffs’ allegation that Defendants violated the California Rules of Professional Conduct is conclusory and therefore not entitled to the presumption of truth.”
The Ninth Circuit opinion says:
“Jarrett fails to state a claim for tortious interference because he fails to allege that Defendants committed an ‘independently wrongful act’ as required by California law….Jarrett alleges that Defendants disparaged him to the client, but he does not allege that Defendants engaged in actionable disparagement. That is, Jarrett does not allege sufficient facts to establish that Defendants said anything to the client that was untrue or, though true, was in violation of professional or ethical rules.”
Fitzgerald found that Jarrett could not recover the reasonable value of his services on an unjust enrichment theory because he did not set forth the value of his legal services, but only pointed to entitlement to a referral fee. The judge said:
“Plaintiffs offer no argument about what portion of the attorneys’ fees Plaintiffs are entitled to for the value of the services rendered prior to Jarrett being replaced as lead attorney. Instead, Plaintiff doubles-down on his argument that ‘the benefit which Plaintiffs conferred upon Defendants was his selection of them to serve as his co-counsel.’…This is the same argument that the Court has previously rejected.”
The Ninth Circuit judges wrote:
“Jarrett alleges that his introduction of Defendants to the client entitles him to two-thirds of the $4 million fee award from the wrongful death suit in which the client prevailed. Nothing in the language of the parties’ oral fee-sharing agreement provides for Jarrett to receive a referral fee for his introduction, and Jarrett has advanced no other ground for concluding that Defendants have been unjustly enriched at his expense.”
The case is Jarrett v. Terrell, 21-55263.
Jarrett also sued Galipo for Jarrett also sued Galipo in Los Angeles Superior Court for allegedly interfering with his supposed lien on any award of attorney fees in Archibald’s action. However, last Oct. 15, Judge sustained without leave to amend a demurrer to Jarrett’s third amended complaint, holding:
“…Plaintiff has not alleged facts establishing that he has successfully adjudicated the existence, value, or enforceability of his lien at any time. Without prior adjudication of the lien’s existence and validity, there is no lien for Galipo to interfere with.”
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