In4Network, Inc. v. Perkins Coie et al.

Filed 2/20/07  In4Network, Inc. v. Perkins Coie et al. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

            APPEAL from an order of the Superior Court of Los Angeles County, Soussan G. Bruguera, Judge.  Reversed.

            Roger N. Golden for Plaintiff and Appellant.

            Gibson, Dunn & Crutcher, Kevin S. Rosen, William E. Thomson for Defendants and Respondents Perkins Coie LLP, David Biderman, and Vick Mansourian.

            Gipson Hoffman & Pancione, Kenneth I. Sidle for Defendant and Respondent Nicholas Rockefeller.

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I.  introduction

            Plaintiff, In4Network, Inc., appeals from a judgment on the pleadings of the entirety of an amended complaint for legal malpractice, contract and fiduciary breach, and fraud in favor of its former attorneys, defendants, Nicholas Rockefeller, David Biderman, and Vick Mansourian, and Perkins Coie, LLP.  The judgment on the pleadings motion was granted on the ground that the amended complaint was a sham pleading because it contained allegations which directly contradicted those in the original verified complaint.  We agree with defendants that there are inconsistent claims in the original and amended complaints.  Nonetheless, each count of the amended complaint contains consistent claims.  Therefore, the judgment on the pleadings motion should have been denied.    

II.  Background

A.  The Verified Original Complaint

            The verified original complaint, which was filed on August 27, 2002; contained causes of action for:  professional negligence (first); contract breach (second); and fiduciary duty breach (third).  The verified original complaint alleged the following.  Plaintiff is a Washington corporation.  In the fall of 2000, defendants were hired to represent plaintiff in connection with claims against the University of Southern California and several individual defendants for contract breach and fraud (the underlying action).  The underlying action alleged that plaintiff had been damaged in the sum of $250 million plus punitive and other damages.  

            The verified original complaint further alleged that defendants failed to exercise reasonable care and legal skills in the underlying action by among other things:  failing to competently analyze the facts; neglecting to appropriately plead claims; not adeptly analyzing the law; failing to competently defend plaintiff's rights and remedies in response to various law and motion proceedings filing by the defendants; engaging in conduct and advising plaintiff to do so which led to a sanctions order; threatening to withdraw if plaintiff did not acquiesce to defendant's demands for a personal guarantee for payment of fees (the guarantee was sought from â€