Law Offices of Baruch Cohen v. Moore CA2/5

Filed 3/13/13 Law Offices of Baruch Cohen v. Moore CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

LAW OFFICE OF BARUCH C. COHEN B239148 APLC, (Los Angeles County Plaintiff and Appellant, Super. Ct. No. BC448866)

v.

SAMUEL MOORE et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County. Robert L. Hess, Judge. Affirmed. Law Office of Bruce Adelstein, Bruce Adelstein for Plaintiff and Appellant. No appearance for Defendants and Respondents. _______________

Appellant Law Offices of Baruch Cohen appeals from the judgment in favor of defendants Samuel Moore, Joyce Moore, and Fred Wilhelms, as trustee of the William Everett Preston Trust, on appellant's complaint. We affirm.

Facts Appellant's complaint alleged that the defendants had retained Cohen, an attorney, to perform legal services, that they had agreed to make payments during each billing cycle, and that they had not made the minimum payments. We need not further detail the underlying facts, except to say that the retention involved the bankruptcy of William Everett Preston, that defendant Joyce Moore was Preston's personal and business manager, that her husband, defendant, Samuel Moore was involved in that business, and that the bankruptcy trustee was seeking sums from the Moores and from the trust. The causes of action were breach of contract, fraud, and common counts. Appellant sought damages of $462,652; his bills minus the $95,220 which defendants had paid. The defendants were served, but did not answer. Appellant filed a request for entry of default, and default was entered. Appellant also sought default judgment. The court received the filing and set hearing on an Order to Show Cause re: dismissal for failure to enter a default judgment. At that hearing, the court conferred with counsel concerning corrections to the filing and continued the case. Then, on review of appellant's third submission, the court ruled that "[s]ignificant issues identified by the Court remain unanswered, and the Court's review of the bills raises new questions. [¶] An oral prove-up will be required with [appellant] to testify under oath." In the judgment, issued after the hearing, the court found a failure to plead any claim, "except possibly a common count," noting, inter alia, that while appellant was claiming that the Moores were liable for fees incurred in the Wilhelms representation, and was claiming that Wilhelms, as an individual, was responsible for the fees incurred in the representation of the Moores, the retainer agreements submitted to the court did not