client's client is not paying me

[mahmoud316]

What is the name of your state (only U.S. law)? CA

Hello
I do translations of documents. A few weeks ago, a law firm that has worked with me before contacted me regarding the translation of some documents. The law firm's secretary called to ask for price. I gave them 2 price quotes, for rush service and regular service. She said "let me call the client and I will let you know."
then she emailed, saying she wants the rush service.
I gave them rush service and sent them an invoice. After receiving the invoice, the same secretary emails me, saying "I will send your invoice to our client, he is paying directly"
At this point I was pissed because I was under the impression that the law firm is paying and I don't have to deal with a private individual. I never do work for individuals unless I am paid in advance.

So now the law firm's client has not paid me and I am not sure what to do. should I sue him, should I sue the law firm, what do I do? If I have to sue the law firm, who would I sue? The secretary, the owner?

 

[tranquility]

Sue the secretary and lawfirm. If they want to join the client, they can.

 

[LdiJ]

What is the name of your state (only U.S. law)? CA

Hello
I do translations of documents. A few weeks ago, a law firm that has worked with me before contacted me regarding the translation of some documents. The law firm's secretary called to ask for price. I gave them 2 price quotes, for rush service and regular service. She said "let me call the client and I will let you know."
then she emailed, saying she wants the rush service.
I gave them rush service and sent them an invoice. After receiving the invoice, the same secretary emails me, saying "I will send your invoice to our client, he is paying directly"
At this point I was pissed because I was under the impression that the law firm is paying and I don't have to deal with a private individual. I never do work for individuals unless I am paid in advance.

So now the law firm's client has not paid me and I am not sure what to do. should I sue him, should I sue the law firm, what do I do? If I have to sue the law firm, who would I sue? The secretary, the owner?

How late is the invoice?

I suggest for the future that you get a signed contract/purchase order from the law firm before you do any work for them or for any of their clients. If they won't give you one, then you will know that it needs to be paid upfront or you won't do it at all.

Unfortunately in this particular circumstance it could be difficult to prove a valid contract with either organization...so if you sue, you need to sue both of them.

 

[latigo]

Sue the secretary and lawfirm. If they want to join the client, they can.

Sue an employee of the law firm?

Have they changed the laws of agency with respect to a disclosed principal?

. . a law firm that has worked with me before contacted me regarding the translation of some documents. The law firm's secretary called . .

 

[tranquility]

Let her make the claim the law firm is her master. The OP wants to get paid. It is not going to be malicious prosecution to name the person who called him--even if that person says she represents someone else.

 

[latigo]

Sue the secretary and lawfirm (sic)
If they want to join the client, they can.

Let her make the claim the law firm is her master. The OP wants to get paid. It is not going to be malicious prosecution to name the person who called him--even if that person says she represents someone else.

I must respectfully protest all of the above.

First, I cannot agree that subjecting an individual to the expense and inconvenience of defending a civil action that "is not warranted by existing law" does not constitute the tort of abusing a process of law.

If you claim that subjecting the employee of the law firm to defending such a law suit would not be an abuse of process then please state what you contend to be "the existing law" that would justify such a legal process.
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Secondly, if not deemed tortuous, it would certainly constitute “frivolous litigation” resulting in possible “sanctions” under CCP Section 128.7 - California’s equivalent to FRCP Rule 11.

If advising that these circumstances afford the OP a recognizable cause of action against the law firm’s secretary, then please explain how you would draft such a complaint with any hope of having it survive a demurrer and/or motion for summary judgment and/or a motion for judgment on the pleadings (CCCP 430.10(e) - 437c and 438(b) without it containing false allegations of fact?

And having the pleader (pro se or licensed attorney) avoid the sanctions under CCCP Section 128.7. *

How can it be said that filing such a lawsuit - that would be dismissed upon any of the three mentioned preliminary motions would not have subjected the defendant to harassment , found to have unnecessarily delayed the proceedings and has needlessly increased the cost of litigation?
________________________

[SUB][*] Cal. CCP 128. 7 (b) “By presenting to the court, whether by signing, filing, submitting, . . . . an attorney or (pro se) party is certifying that . . . . all of the following conditions are met:

(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

(2) The claims, . . . and other legal contentions therein are warranted by existing law . . . “

(3) The allegations and other factual contentions have evidentiary support . . . “[/SUB]

 

[tranquility]

This is not tort, this is contract. Who is the contract with?

Agency edit:
From the California Civil Jury Instructions "sources and authority" on Agency at http://www.justia.com/trials-litigation/docs/caci/3700/3705.html .

"The existence of an agency is a factual question within the province of the trier of fact whose determination may not be disturbed on appeal if supported by substantial evidence." (L. Byron Culver & Associates v. Jaoudi Industrial & Trading Corp. (1991) 1 Cal.App.4th 300, 305 [1 Cal.Rptr.2d 680], internal citation omitted.)

The burden of proving the existence of an agency rests on the one affirming its existence. (Burbank v. National Casualty Co. (1941) 43 Cal.App.2d 773, 781 [111 P.2d 740].)

It seems like there would not be a successful demurrer or judgment on the pleadings. Fact issue and all that. Now, after the facts come in, the court may let a summary judgment motion settle matters with the secretary. As long as litigation against the secretary was not unduly extended AFTER finding out those facts in discovery, there is not going to be sanctions. The best part is the person sued (secretary) has to prove up her defense that she was working as an agent for lawyer. Now, seeing that he wants to get paid, the OP will allege that as well. It's just he's going to have to use a bunch of informed and believes in his complaint.

 

[latigo]

Sue the secretary and lawfirm (sic)
If they want to join the client, they can.

This is not tort, this is contract. Who is the contract with? . . .

It seems like there would not be a successful demurrer or judgment on the pleadings. Fact issue and all that. Now, after the facts come in, the court may let a summary judgment motion settle matters with the secretary. As long as litigation against the secretary was not unduly extended AFTER finding out those facts in discovery, there is not going to be sanctions. The best part is the person sued (secretary) has to prove up her defense that she was working as an agent for lawyer. Now, seeing that he wants to get paid, the OP will allege that as well. It's just he's going to have to use a bunch of informed and believes in his complaint.

Please note that I didn’t bring up the subject of tort!

If you will recall it was you not I. You did so in a negative sense by denying that your frivolously laden suggested lawsuit in contract against a known employee would not constitute malicious prosecution . Or were you unaware that an action for malicious prosecution a/k/a/ abuse of process is founded on tort law?
______________________

May I refresh you memory with the following:

. . mahmoud316 . . . a law firm that has worked with me before contacted me . . . the law firm's secretary called (to say) let me call the client and I will let you know . . . the same secretary emails me . . .I will send your invoice to our client, he is paying directly. .

And in face of this critical awareness on the part of the would be plaintiff, you are suggesting that it would require the expense and time to engage in pretrial discovery in order to glean and ferret out the facts revealing that a known agency relationship existed between the secretary and the law firm and that the secretary was acting within the scope of her apparent authority and solely in furtherance of the business interests her employer and not in her individual capacity?

Nonsense. Plus it speaks of barratry to sue someone in assumpsit knowing full well that they are not contractually responsible. And most certainly frivolous and specious!

It is just a senseless as one suing a lawyer’s secretary because her boss absconded with the client’s trust funds. Other than subject matter, there isn’t an iota of a distinction.
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Also, very noticeable in your retort is the absence any acknowledgement of my direct question to you. So I’ll repeat it here.

How is the OP to plead a sustainable cause of action against the secretary without prevarication?
__________________

Is it necessary to call attention to the law of agency by which an agent is not responsible to third parties when the principal is disclosed and the agent is acting within the scope his or her express or apparent authority?

Or that if the secretary is a principal party to any contract made with the OP then how is the law firm to be held liable? Or do you claim that she was acting in a dual capacity, both as principal and as agent.

If she was acting on her individual behalf then the law firm is not responsible. If she was acting solely on behalf of the firm and knowingly so, then she is not legal responsible.

Apparently it escapes you that both of these parties cannot be held in the same bloody lawsuit!

Not UNLESS you come up some obscure theory that the secretary and the law firm are each contractually obligated to the OP.

So answer your own question. Who was the contract with? It can’t be both.
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In sum, you are equally as mistaken here as you were in advising the user from Texas that he was ONLY entitled to recover attorney fees on top of any judgement for service rendered to his New Jersey client, IF IT WAS STIPULATED BY CONTRACT!

But you will not admit being in error there either.

FINI! Double FINI!

 

[tranquility]

And in face of this critical awareness on the part of the would be plaintiff, you are suggesting that it would require the expense and time to engage in pretrial discovery in order to glean and ferret out the facts revealing that a known agency relationship existed between the secretary and the law firm and that the secretary was acting within the scope of her apparent authority and solely in furtherance of the business interests her employer and not in her individual capacity?

I think I can get the money from the person I contracted with. If she wants the defense of being an agent for another, she needs to prove it up. Besides, why the employer as agent? The employer is saying client is the agent. How shall we determine the true principal?

Hint: Unless I don't think the person who I dealt with has the money to pay, I don't care.

Nonsense. Plus it speaks of barratry to sue someone in assumpsit knowing full well that they are not contractually responsible. And most certainly frivolous and specious!

Who is responsible? Law firm, client or person who made the deal?

It is just a senseless as one suing a lawyer�s secretary because her boss absconded with the client�s trust funds. Other than subject matter, there isn�t an iota of a distinction.

You'll have to flesh this one out a bit. What's the cause of action against the secretary? In our facts, the cause of action against the secretary is breach of contract. There is a clear prima facie case for such. If she wants the defense of being an agent, she'll have to prove it up. And, once again, who is the principal?

How is the OP to plead a sustainable cause of action against the secretary without prevarication?

The same way you'd plead any garden variety breach of contract.

1. That [name of plaintiff] and [name of defendant] entered into a contract;

2. That [name of plaintiff] did all, or substantially all of the significant things that the contract required [him/her/it] to do [or that [he/she/it] was excused from having to do those things];

3. That all conditions required for [name of defendant]'s performance had occurred;

4. That [name of defendant] failed to do something that the contract required [him/her/it] to do; and

5. That [name of plaintiff] was harmed by that failure.

As to #1, Offer: "I gave them 2 price quotes, for rush service and regular service." Acceptance: "She said "let me call the client and I will let you know."
then she emailed, saying she wants the rush service." with the consideration being the price.

Nothing disingenuous at all. Just the facts as the OP knows them to be.

Is it necessary to call attention to the law of agency by which an agent is not responsible to third parties when the principal is disclosed and the agent is acting within the scope his or her express or apparent authority?

No. At least according to Judicial Council chosen case law. (The burden of proving the existence of an agency rests on the one affirming its existence. (Burbank v. National Casualty Co. (1941) 43 Cal.App.2d 773, 781 [111 P.2d 740].) )

Or that if the secretary is a principal party to any contract made with the OP then how is the law firm to be held liable? Or do you claim that she was acting in a dual capacity, both as principal and as agent.

If she was acting on her individual behalf then the law firm is not responsible. If she was acting solely on behalf of the firm and knowingly so, then she is not legal responsible.

Apparently it escapes you that both of these parties cannot be held in the same bloody lawsuit!

A complaint may plead inconsistent causes of action. Goldwater v. Oltman, 210 Cal. 408 [292 P. 624, 71 A.L.R. 871]; Beatty v. Pacific States S. & L. Co., 4 Cal.App.2d 692 [41 P.2d 378]; Hocker v. [35 Cal.2d 719] Glover, 113 Cal.App. 152 [298 P. 72]; American-LaFrance Fire Engine Co. v. Bagge, 98 Cal.App. 291 [276 P. 1066].

I do agree the OP cannot collect twice.

 

[mahmoud316]

Hi guys
please stop fighting with each other. you guys are using a bunch of big legal terms and I have no idea what you are talking about in your fights.
please just tell me what the hell I have to do to get paid.

 

[latigo]

Hi guys
please just tell me what the hell I have to do to get paid.

Sue both the law firm and its individual client that received the benefit of your services.

If the secretary for the law firm had explained that you were to look solely to the client for payment BEFORE you performed the services, the attorneys would not be responsible.

But since no such disclaimer was made prior, the firm is legally bound to pay you. *

Do not sue the secretary! Not unless you want to pay her attorney for having her dismissed from the case.
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[*] See for example: Thomas& Thomas Court Reporters, L.L.C., v. DouglasSwitzer, an individual, and Hathaway & Switzer, L.L.C., 28 Neb 19; ___ N.W.2d ___ Filed January 13, 2012. Case No. S-11-029.

And most apposite here, Elisa Dreier Reporting Corp. v Global Naps Networks, Inc. (2011) NY Slip Op 03543 Decided on April 26, 2011 wherein the Supreme Court of New York Appellate Division 2nd Judicial Dept. stated:

“(Although) a court reporting agency may obtain payment for services rendered directly from the attorney who engaged it, a court reporting agency is not precluded from recovering those fees directly from the client.”

 

[Mass_Shyster]

Sue both the law firm and its individual client that received the benefit of your services.

If the secretary for the law firm had explained that you were to look solely to the client for payment BEFORE you performed the services, the attorneys would not be responsible.

Based on the original post, the secretary had to check with the client for authorization, therefore it can be argued that OP was put on notice that s/he was dealing with the client, and not the law firm.

If the individual client is held liable, the secretary could also be held personally liable as the agent of an undisclosed principal.

However, being practical, suing the secretary of a law firm is probably not the best idea. She knows lawyers who will probably take her case for free, and if they want to make things miserable for the OP, they can remove the case from small claims to the trial court where OP would be over his/her head, the the lawyers would be in their element.

 

[tranquility]

But since no such disclaimer was made prior, the firm is legally bound to pay you. *

In some states, this is true. Is it true in CA?
I believe the hiring of expert witnesses have a bit of a varied result. http://www.law.ua.edu/pubs/jlp/files/issues_files/vol03/vol03art12.pdf among many others.

As to the advice not to join what I consider an indispensable party, I hope you get the court to agree there is agency responsibility with either client or attorney. If not, the OP will have a problem getting his money.

Sue the secretary and let the other side worry about things. Don't worry about paying for the attorney of suing the person you made a contract with.