Alexis Mager Lakusta

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MEMORANDUM RE DEBTOR’S
MOTION FOR LEAVE TO FILE AP 	-1-
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re: 	) 	Bankruptcy Case
) 	No. 02-31521-TC
) 	Chapter 7
ALEXIS MAGER LAKUSTA, 	)
)
)
Debtor. 	)
___________________________________)
MEMORANDUM RE DEBTOR’S
MOTION FOR LEAVE TO FILE ADVERSARY PROCEEDING
On May 11, 2007, Debtor filed a request for leave to file an
adversary proceeding 	against David A. Boone, Pahl & Gosselin,
David Dupperault, and the Silicon Valley Law Group. 	The proposed
defendants are attorneys and law firms.
Upon due consideration, because Debtor’s malpractice claims
are either barred by the statute of limitations or not pled with
particularity, and because Debtor has not alleged any facts in
support of the claims for conspiracy, deceit, conversion, and abuse
of process, I determine that the Motion for Leave should be denied.
FACTS
Debtor’s proposed adversary proceeding against the above
counsel (Proposed Action) asserts claims for malpractice,
conspiracy to defraud, deceit and fraud on the court, conversion,
Signed and Filed: June 29, 2007
________________________________________
THOMAS E. CARLSON
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
July 02, 2007
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 02-31521 Doc# 310 Filed: 06/29/07 Entered: 07/02/07 09:19:58 Page 1 of
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MEMORANDUM RE DEBTOR’S
MOTION FOR LEAVE TO FILE AP 	-2-
and abuse of process arising out of counsels’ representation of
Debtor or Mark Evans in litigation beginning in 2002, described
below.
1. 	The First Action
In April 2002 Debtor conveyed title to his residence and
another Woodside property to Evans. 	Evans recorded the grant deeds
and allegedly forcibly removed Debtor from the residence. 	On June
10, 2002, six days after Debtor filed for chapter 11 bankruptcy
relief, Debtor sued Evans in bankruptcy court regarding these
transactions (Adv. Proc. No. 02-3125) (First Action). 	Shortly
after Evans filed an answer to the complaint, Debtor and Evans
executed a settlement of the litigation, which contained broad
mutual releases. 	On August 19, 2002, this court signed an order
approving the settlement agreement.
The Law Offices of David Boone represented Debtor in Debtor’s
bankruptcy case and in the First Action, through execution of the
settlement agreement. 	On October 8, 2002, Mr. Boone ceased
representing Debtor in the main case and in the First Action, and
Campeau, Goodsell Smith substituted in as counsel for Debtor in
both matters.
Silicon Valley Law Group (David Duperrault) represented Evans
in the First Action.
2. 	The Second Action
On August 5, 2003, while his bankruptcy case was pending, and
after it had been converted to chapter 7, Debtor filed an action in
Superior Court against Evans, a notary public, and a real estate
broker, seeking to void the transfer of Debtor’s residence to
Case: 02-31521 Doc# 310 Filed: 06/29/07 Entered: 07/02/07 09:19:58 Page 2 of
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1/ Debtor does not allege when he purportedly hired Pahl &
Gosselin, or whether a retainer agreement was ever executed.
MEMORANDUM RE DEBTOR’S
MOTION FOR LEAVE TO FILE AP 	-3-
Evans. 	Evans removed the action to this court, and it was assigned
Adv. Proc. No. 03-3549 (Second Action). 	In the Second Action,
Debtor represented himself, and Evans was represented by Pahl &
Gosselin (Catherine Scholmann Robertson) and by Silicon Valley Law
Group (David Duperrault).
After a trial, the court entered judgment in favor of Evans on
June 7, 2004. 	The judgment provided that the settlement agreement
was fully enforceable, and that the Second Action was barred by the
release provisions of the settlement agreement.
3. 	Malpractice Claims Arising out of the Second Action
In the Proposed Action, Debtor alleges that before Pahl &
Gosselin represented Evans, it represented Debtor in connection
with the anticipated sale of one of Debtor’s Woodside properties. 1/
Debtor alleges that Pahl & Gosselin breached its duty of loyalty to
Debtor by fraudulently misrepresenting to the court at trial in the
Second Action that Evans was the owner of Debtor’s Woodside
properties. 	Based on these factual allegations, Debtor asserts a
claim for malpractice against Pahl & Gosselin.
4. 	The Third Action and Debtor’s Motion to Compel Abandonment
On April 15, 2006, Debtor filed an emergency motion for relief
from stay to file a new action against Evans before the statute of
limitations ran. 	The above-signed, who was out of town, granted
the motion in order to preserve the statute of limitations while
deciding whether the action should proceed. 	On April 21, 2006,
Debtor filed an action in San Mateo Superior Court against, inter
Case: 02-31521 Doc# 310 Filed: 06/29/07 Entered: 07/02/07 09:19:58 Page 3 of
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MEMORANDUM RE DEBTOR’S
MOTION FOR LEAVE TO FILE AP 	-4-
alia, Evans, Evans’ company (Old La Honda Properties, LLC), and
David A. Boone, Debtor’s former counsel in the bankruptcy case and
in the First Action. 	Debtor also filed in this court a motion to
compel the chapter 7 trustee to abandon the estate’s interest in
all claims against Evans, his agents and employees, David
Dupperault, Silicon Valley Law Group, and David Boone.
Pahl & Gosselin, David Dupperault, and David Boone filed
opposition to Debtor’s motion for abandonment. 	On May 11, 2006,
this court signed a memorandum and order denying Debtor’s motion
for abandonment. 	The memorandum explained:
The bankruptcy case is about to be closed. 	Unless
this court orders otherwise, all property of the estate
that was listed in the schedules and that has not been
administered will be abandoned to Debtor upon closing of
the case. 	11 U.S.C. § 554(d). 	Assuming arguendo that
the claims in question were listed in the schedules and
are thus subject to such abandonment, I determine that
this is an instance in which the court should “order
otherwise” and that the claims in question should not be
abandoned. 	Lakusta has had his day in court. 	He now
seeks to attempt to relitigate (likely at great cost to
the other parties involved and perhaps to the
inconvenience of the trustee and his counsel) the issues
resolved via a long-final judgment.
(Memo at 2:11-15).
5. 	Malpractice Claims arising out of the Abandonment Motion
The Proposed Action asserts that all of the attorneys who
filed opposition to Debtor’s motion to abandon made fraudulent
misrepresentations to the court, resulting in the court “ordering
otherwise”, and denying abandonment of the claims to Debtor. 	Based
on these factual allegations, Debtor asserts a malpractice claim
against Pahl & Gosselin, David Duperrault, and David Boone.
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MEMORANDUM RE DEBTOR’S
MOTION FOR LEAVE TO FILE AP 	-5-
6. 	The Proposed Action’s Four Skeletal Claims
In addition to the malpractice claim, the Proposed Action also
asserts the following four skeletal claims, which appear in the
Proposed Action as follows:
SECOND CAUSE OF ACTION: CONSPIRACY TO DEFRAUD
THIRD CAUSE OF ACTION: DECEIT AND FRAUD ON THE COURT
FOURTH CAUSE OF ACTION: CONVERSION
FIFTH CAUSE OF ACTION: ABUSE OF PROCESS
Debtor alleges that he will amend the Proposed Action to
describe these four causes of action against each of the proposed
defendants, to state Debtor’s damages, and to state the “specific
relief [Debtor] seeks.”
LAW
An action against an attorney for a wrongful act or omission,
other than for actual fraud, and which arises in the performance of
professional services, must be brought within one year after the
plaintiff discovers, or through the exercise of reasonable
diligence should have discovered, the facts constituting the
wrongful act or omission, or four years from the date of the
wrongful act or omission, whichever occurs first. 	Cal. Code Civ.
Proc. § 340.6(a). 	The period is tolled during the time that
plaintiff has not sustained actual injury, that the attorney
continues to represent plaintiff regarding the specific subject
matter in which the wrongful act or omission occurred, that the
attorney willfully conceals the facts constituting the wrongful act
or omission when such facts are known to the attorney, or that the
plaintiff is under a legal or physical disability that restricts
his ability to commence legal action. 	Id.
Case: 02-31521 Doc# 310 Filed: 06/29/07 Entered: 07/02/07 09:19:58 Page 5 of
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MEMORANDUM RE DEBTOR’S
MOTION FOR LEAVE TO FILE AP 	-6-
The claims relating to the signing and enforcement of the
settlement agreement are barred by the applicable statute of
limitations, because any wrongful act or omission by counsel
occurred, was known by Debtor, and caused Debtor to suffer damages
well before one year prior to Debtor filing his proposed new
adversary proceeding on May 11, 2007. 	Debtor does not allege any
facts that would support tolling of the time for filing an action
against the counsel.
Regarding the motion to abandon, Debtor has failed to plead
with particularity what misrepresentations the proposed defendants
allegedly made to Debtor. 	Accordingly, Debtor has not stated any
fraud-related malpractice claims upon which relief may be granted.
Fed. R. Civ. Proc. 9(b); 12(b)(6); Vess v. Ciba-Geigy Corp. USA,
317 F.3d 1097, 1007-08 (9th Cir. 2003)(affirming 12(b)(6) dismissal
of fraud claims not pled with particularity) .
The Proposed Action does not incorporate by reference in
support of the four skeletal causes of action the allegations
underlying the malpractice claims, nor are there any other facts
alleged in support of the remaining claims. 	Without a single
alleged fact to support these four claims, the Proposed Action does
not state a claim upon which relief may be granted. 	Fed. R. Civ.
Proc. 8(a); 12(b)(6).
CONCLUSION
The malpractice claims relating to the signing and enforcement
of the settlement agreement are barred by the applicable statue of
limitations because any malpractice was committed by counsel, known
by Debtor, and caused Debtor damage more than one year prior to
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MEMORANDUM RE DEBTOR’S
MOTION FOR LEAVE TO FILE AP 	-7-
Debtor filing his proposed new adversary proceeding on May 11,
2007. 	Debtor did not plead with particularity the
misrepresentations defendants allegedly made to Debtor regarding
the motion to abandon, and did not plead any facts in support of
the four skeletal claims for conspiracy to defraud, deceit and
fraud on the court, conversion, and abuse of process. 	Accordingly,
the court determines that the Motion for Leave should be denied.
**END OF MEMORANDUM**
Case: 02-31521 Doc# 310 Filed: 06/29/07 Entered: 07/02/07 09:19:58 Page 7 of
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COURT SERVICE LIST
Alexis Mager Lakusta
1259 El Camino Real #245
Menlo Park, CA 94025
Robert E. Patterson, Esq.
Squire, Sanders & Dempsey LLP
600 Hansen Way #100
Palo Alton, CA 94304-1043
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