Built Pacific v. Denning Moores CA4/1

Filed 10/25/24 Built Pacific v. Denning Moores CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

BUILT PACIFIC, INC., D081638

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2020- 00032524-CU-PN-CTL) DENNING MOORES, APC,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, Carolyn M. Caietti, Judge. Affirmed. Diefenbach Law Group and James C. Diefenbach for Plaintiff and Appellant. Denning Moores, Christina M. Denning, Natalia D. Smith, and Jennifer S. Hegemier for Defendant and Respondent.

Built Pacific, Inc. (BPI) appeals a judgment in its action against Denning Moores, APC (DM) for legal malpractice. BPI contends the superior court erroneously sustained without leave to amend DM’s demurrer made on the ground the action was barred by an arbitration award DM had obtained

against BPI in a dispute regarding attorney fees. DM defends the court’s ruling and asks us to sanction BPI for pursuing a frivolous appeal. We affirm the judgment and deny the sanctions request. I. BACKGROUND A. DM’s Representation of BPI BPI retained DM in June 2018 to take over its representation in an action BPI had filed against a school district for terminating a contract with BPI for the demolition, relocation, installation, and site work for various relocatable buildings. The retainer agreement required BPI to pay DM hourly fees for attorneys and paralegals, a percentage of any recovery from the school district exclusive of costs, and any fees and charges of expert witnesses, consultants, or investigators hired by DM. The agreement contained a provision requiring binding arbitration of “[a]ny controversy between the parties regarding the construction, application or performance of any services under the Agreement, and any claim arising out of or relating to this Agreement or its breach, including but not limited to claims of malpractice.” In March 2019, DM retained Xpera Consulting Services, Inc. (Xpera) to provide expert opinion on an issue at a mediation with the school district. BPI paid Xpera $19,159 but objected to later bills as “excessive” and did not pay them. BPI also objected to DM’s bills as “excessive and unconscionable.” BPI’s nonpayment of the bills prompted DM to apply to withdraw from representing BPI, and the superior court granted the application in September 2019. Xpera demanded payment the following month, and DM, BPI’s new counsel, and Xpera’s counsel exchanged e-mails about the matter. In an e-mail dated November 13, 2019, BPI’s counsel stated that DM was