Filed 5/31/23 The Cochran Firm v. Seck CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE COCHRAN FIRM et al.,

Plaintiffs and 

Appellants,

v.

IBIERE SECK et al.,

Defendants and 

Respondents.

 B321448

 (Los Angeles County

 Super. Ct. No. 19STCV40383)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Michael P. Linfield, Judge. Affirmed.

The Cochran Firm California, Edward M. Lyman and 

Brian T. Dunn, for Plaintiffs and Appellants.
2

Baker, Keener & Nahara, Phillip A. Baker and Derrick 

S. Lowe, for Defendants and Respondents.

_______________________________________________

INTRODUCTION

An attorney and her law firm entered into a fee 

sharing agreement before she left the firm. The agreement

addressed the compensation the attorney would receive for 

the cases on which she had worked that would remain with 

the law firm after her departure. The law firm filed a 

complaint seeking a declaration that the agreement was 

unenforceable. The trial court denied the law firm’s 

subsequent motion for summary judgment, finding that the 

law firm was not entitled to a declaration in its favor. After 

the law firm then refused to pay the attorney pursuant to

the fee sharing agreement, the attorney filed a crosscomplaint for breach of contract. The trial court granted the 

attorney’s motion for summary judgment, finding that the 

agreement was enforceable and that the law firm breached 

the agreement, causing the attorney to suffer damages. We 

agree and affirm the judgment. 

FACTUAL AND PROCEDURAL BACKGROUND

Ibiere Seck is an attorney and was employed at the 

Cochran Firm until December 31, 2018. After leaving the 

Cochran Firm, Seck established her own law firm, Seck Law, 

P.C. 
3

Prior to her departure from the Cochran Firm, in 

December 2018, Seck and Brian Dunn, the firm’s managing 

partner, negotiated a fee sharing agreement for cases on 

which Seck worked that would remain at the firm. This 

agreement to share attorney fees on particular cases was 

memorialized in a Memorandum of Understanding (MOU) 

drafted by Dunn, dated December 13, 2018. The MOU 

provided that Seck would receive 25 percent of the net 

attorney fees recovered by the Cochran Firm on a specified 

list of cases, which included Reddick v. LACMTA (the 

Reddick matter). The MOU also stated that “Seck ha[d] 

undertaken substantial efforts to secure the effective 

representation of the plaintiff(s) during her tenure with The 

Cochran Firm” on these cases. The “agreement [was] made 

and [was] based on the representations made by Ibiere Seck 

that she worked on these cases in some capacity.”1 The 

MOU was not signed by Seck or Dunn, on behalf of the 

Cochran Firm. 

In 2019, the Cochran Firm paid Seck 25 percent of the 

net attorney fees it received in four cases (Cain v. FedEx, 

Owens v. Blackwood, Harvey v. Uber, and Acosta v. 

Autobuses Cordinados), all of which were listed in the MOU. 

The Cochran Firm also paid Seck 25 percent of the net 

attorney fees it received in another case, Harris v. UPS (the 

Harris matter). The Harris matter was not listed in the 

1 The Cochran Firm later affirmed in its discovery responses that 

the negotiated 25 percent of attorney fees was not based on the amount 

of work that Seck performed on the listed cases in the MOU. 
4

MOU, but it was part of the discussions between Seck and 

Dunn in December 2018. As of the date of the MOU, it was 

unclear whether the matter would remain with the Cochran 

Firm or leave with Seck. It was later determined that the 

Harris matter would stay with the Cochran Firm, and it was 

then subject to the MOU. 

When a settlement was reached in the Reddick matter 

in October 2019, Seck asserted a lien on 25 percent of the 

attorney fees recovered by the Cochran Firm. Despite the 

Cochran Firm’s demand, Seck refused to withdraw the lien. 

On October 29, 2019, Seck and the Cochran Firm 

entered into a separate, mediated fee sharing agreement 

entitled, “Stipulation for Settlement” (stipulation). In the 

stipulation, Seck agreed to distribute to the Cochran Firm 

specified percentages of net attorney fees received on cases 

that Seck took with her upon leaving the firm. On 

November 12, 2019, Seck paid the Cochran Firm $160,000 

pursuant to the stipulation. This amount reflected 40 

percent of the net attorney fees Seck received in the case, 

Z.G. v. Long Beach Unified School District, which was a case 

listed in the stipulation. 

PROCEDURAL HISTORY

On November 7, 2019, the Cochran Firm filed a 

complaint against Seck 2 for declaratory relief and abuse of 

2 The named plaintiffs were: “The Cochran Law Firm California, 

a Professional Corporation; and Dunn Law, APC, a Professional 

Corporation, d/b/a ‘The Cochran Firm California.’” The named

(Fn. is continued on the next page.)
5

process. The Cochran Firm sought a declaration that the 

December 13, 2018 MOU did not create a valid fee sharing 

agreement between the firm and Seck in the Reddick matter 

because the client was not informed and did not consent in 

writing to such an agreement, as required by the State Bar 

Rules of Professional Conduct. The Cochran Firm also 

sought a declaration that, in the Reddick matter, Seck had 

no legal authority to assert a lien on the settlement 

proceeds.3 On January 21, 2020, the trial court granted 

Seck’s anti-SLAPP motion as to the abuse of process claim. 

On February 11, 2020, the Cochran Firm moved for 

summary judgment. On July 13, 2020, the trial court denied 

the motion, finding that the Cochran Firm was not entitled 

to a declaration in its favor. 

After the trial court’s ruling, Seck made a formal 

demand for payment of her share of the attorney fees in the 

Reddick matter on September 10, 2020. The Cochran Firm 

rejected the demand and stated it would “never consent to 

the payment of ANY fees absent a judgment or specific order 

directing payment of a specific amount to her.” 

On October 13, 2020, Seck filed a cross-complaint 

against the Cochran Firm for a single breach of contract

claim based on the firm’s refusal to pay Seck her 25 percent 

defendants were: “Ibiere Seck, an individual; and Seck Law, P.C., a 

Professional Corporation.” 

3 The Cochran Firm did not dispute the enforceability of the 

October 29, 2019 stipulation concerning the cases that Seck took with 

her. 
6

share of the attorney fees in the Reddick matter.

4 On 

January 24, 2022, Seck moved for summary judgment on the 

breach of contract claim, and on April 14, 2022, the trial 

court granted the motion. The court found the MOU 

“created a valid fee sharing agreement” between the parties. 

The court further found the Cochran Firm breached the 

agreement and the failure to pay Seck the funds owed to her 

under the agreement entitled her to damages. The court 

rejected the Cochran Firm’s defenses to Seck’s breach of 

contract claim. 

On May 25, 2022, the court entered judgment in favor 

of Seck and against the Cochran Firm. Seck was awarded 

$500,000 (25 percent of the net attorney fees in the Reddick 

matter) plus interest at a rate of 10 percent calculated from 

September 10, 2020 to the date of payment. The court also 

ruled that Seck, as the prevailing party, was entitled to 

recover costs. Based on the grant of Seck’s motion for 

summary judgment, the court stated that the Cochran 

Firm’s complaint against Seck was resolved and moot, and 

therefore the court dismissed the complaint with prejudice. 

The Cochran Firm timely appealed. 

4 Seck Law, a Professional Corporation, was not a party to the 

cross-complaint. Contrary to appellant’s assertion, the Cochran Firm, 

a Professional Corporation, is listed as a cross-defendant in the crosscomplaint. (See Nelson v. East Side Grocery Co. (1915) 26 Cal.App.

344, 347 [“in determining who the parties to an action are the whole 

body of the complaint is to be taken into account, and not the caption 

merely”]; accord Plumlee v. Poag (1984) 150 Cal.App.3d 541, 547.) 
7

DISCUSSION5

A. Standard of Review 

“Summary judgment is appropriate only ‘where no 

triable issue of material fact exists and the moving party is 

entitled to judgment as a matter of law.’” (Regents of the

University of California v. Superior Court (2018) 4 Cal.5th 

607, 618.) “A plaintiff or cross-complainant has met his or 

her burden of showing that there is no defense to a cause of 

action if that party has proved each element of the cause of 

action entitling the party to judgment on the cause of action. 

Once the plaintiff or cross-complainant has met that burden, 

the burden shifts to the defendant or cross-defendant to 

show that a triable issue of one or more material facts exists 

as to the cause of action or a defense thereto. (Code Civ. 

Proc., § 437c, subd. (p)(1).) 

“We review the trial court’s ruling on a summary 

judgment motion de novo, liberally construe the evidence in 

favor of the party opposing the motion, and resolve all 

doubts concerning the evidence in favor of the opponent.”

5 Although the subject motion for summary judgment was brought 

by Seck only, the trial court’s order granting summary judgment 

effectively resolved the Cochran Firm’s complaint in which Seck and 

Seck Law, P.C. were named defendants. We also note that Seck is the 

sole owner of Seck, P.C., a fact acknowledged by the Cochran Firm. 

Thus, both defendants jointly responded to the appeal. The Cochran 

Firm does not challenge Seck Law, P.C.’s standing to respond to the 

appeal. 
8

(Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 

Cal.App.4th 631, 636-637.)

B. Fee Sharing Agreement

The Cochran Firm asserts, with limited analysis,

multiple challenges to the trial court’s order granting Seck’s

motion for summary judgment. We take each argument in 

turn. 

The Cochran Firm contends the MOU is unenforceable 

because it violated the Rules of Professional Conduct, rule 

1.5.1, which prohibits lawyers “who are not in the same law 

firm” from dividing a fee for legal services unless certain 

requirements are met, including written consent from the 

client. Here, the MOU was entered into on December 13, 

2018, while Seck was a lawyer with Cochran Firm. Seck’s 

employment with the firm did not end until December 31, 

2018. The Cochran Firm fails to provide any valid argument 

or evidence to refute this fact. Thus, this fee sharing 

agreement was not subject to rule 1.5.1. (Chambers v. Kay 

(2002) 29 Cal.4th 142, 150 [decided under former rule 2-

200(A)];

6 see also Anderson, McPharlin & Connors v. Yee 

6 Rules of Professional Conduct, rule 1.5.1, superseded former 

rule 2-200 on November 1, 2018. All events pertaining to this case 

occurred after rule 1.5.1 was in full force. However, former rule 2-

200(A) similarly prohibited lawyers from dividing a fee for legal 

services with “a lawyer who is not a partner of, associate of, or 

shareholder with the [lawyer]” unless certain requirements are met. 

(Reeve v. Meleyco (2020) 46 Cal.App.5th 1092, 1097-1098.) We are not 

(Fn. is continued on the next page.)
9

(2005) 135 Cal.App.4th 129, 133 [former rule 2-200 has no 

applicability to an agreement between two attorneys in the 

same firm, even if the agreement “would not be performed . . 

. until a time at which [the attorney] was no longer a 

partner”].) 

Next, the Cochran Firm argues that the trial court 

applied the wrong elements for a breach of contract cause of 

action. We disagree. As stated by our Supreme Court, “the 

elements of a cause of action for breach of contract are (1) 

the existence of the contract, (2) plaintiff’s performance or 

excuse for nonperformance, (3) defendant’s breach, and (4) 

the resulting damages to the plaintiff.” (Oasis West Realty, 

LLC v. Goldman (2011) 51 Cal.4th 811, 821.) In a 

conclusory manner, the Cochran Firm contends the jury 

instruction that outlines the elements for a breach of 

contract claim requires that a “defendant’s breach was a 

substantial factor in causing plaintiff’s harm” and further 

requires “certain conditions precedent were met.” (CACI 

No. 303) First, the substantial factor element in the jury 

instruction is embraced in the damages element. 

“‘Causation of damages in contract cases . . . requires that 

the damages be proximately caused by the defendant’s 

breach, and that their causal occurrence be at least 

reasonably certain.’ (Vu v. California Commerce Club, Inc. 

(1997) 58 Cal.App.4th 229, 233.) A proximate cause of loss 

or damage is something that is a substantial factor in 

aware of, nor did the Cochran Firm point to, any case in which rule 

1.5.1 was applied. 
10

bringing about that loss or damage. (See e.g., BAJI No. 3.76; 

Mitchell v. Gonzales (19991) 54 Cal.3d 1041, 1052-1053.)” 

(US Ecology, Inc. v. State of California (2005) 129 

Cal.App.4th 887, 909.) Second, the jury instruction relating 

to conditions precedent are optional as not every contract 

has conditions for performance. (See Directions for Use foll. 

CACI No. 303 (2023 ed.).) The Cochran Firm fails to 

articulate that conditions for performance were at issue in 

this case. 

The Cochran Firm also contends that the MOU was not 

sufficiently definite to be enforceable. “Whether a contract 

term is sufficiently definite to be enforceable is a question of 

law for the court.” (Ladas v. California State Auto. Assn. 

(1993) 19 Cal.App.4th 761, 770, fn. 2 (Ladas); see also Patel 

v. Liebermensch (2008) 45 Cal.4th 344, 348, fn. 1.) “‘Where a 

contract is so uncertain and indefinite that the intention of 

the parties in material particulars cannot be ascertained, the 

contract is void and unenforceable.’ (Cal. Lettuce Growers v. 

Union Sugar Co. (1955) 45 Cal.2d 474, 481; see also Civ. 

Code, § 1598; Ladas, supra, 19 Cal.App.4th at p. 770.)” 

(Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 209.) 

Here, the material terms of the fee sharing agreement 

between the parties can be readily ascertained from the 

MOU. The Cochran Firm was required to pay Seck 25 

percent of the net attorney fees for a specified list of cases. 

We are provided with no reasonable explanation why the 

Cochran Firm contends that the MOU was not sufficiently 

definite given that it performed under the terms of the 
11

agreement on five separate occasions without incident. 

Furthermore, the Cochran Firm does not dispute that the 

MOU (drafted by Dunn) lists the Reddick matter as one of 

the cases in which the Cochran Firm was required to pay 

Seck 25 percent of the net attorney fees. 

We further reject the Cochran Firm’s assertion that the 

MOU lacked mutual assent, given that the Cochran Firm 

performed under the agreement repeatedly, paying Seck 25 

percent of net attorney fees in numerous cases. (See Sellers 

v. JustAnswer, LLC (2021) 73 Cal.App.5th 444, 460 

[“‘“‘mutual manifestation of assent, whether by written or 

spoken word or by conduct, is the touchstone of contract’”’”]; 

Russell v. Union Oil Co. (1970) 7 Cal.App.3d 110, 114.) 

In addition, the Cochran Firm argues there was a lack 

of consideration. Generally, “there are two requirements in 

order to find consideration. The promisee must confer (or 

agree to confer) a benefit or must suffer (or agree to suffer) 

prejudice . . . . [¶] It is not enough, however, to confer a 

benefit or suffer prejudice for there to be consideration . . . . 

[T]he second requirement is that the benefit or prejudice 

‘“must actually be bargained for as the exchange for the 

promise.”’ Put another way, the benefit or prejudice must 

have induced the promisor’s promise.” (Steiner v. Thexton

(2010) 48 Cal.4th 411, 420-421, quoting Bard v. Kent (1942) 

19 Cal.2d 449, 452.) Here, there was bargained-for 

consideration for the MOU. The agreement to pay Seck 

resulted from negotiations between Seck and the Cochran 

Firm in which the parties reached a deal as to the 
12

reasonable attorney fee split for cases on which Seck worked 

that would remain at the firm.7 

The Cochran Firm also contends that its conduct was 

not a substantial factor in causing Seck harm because, as 

alleged in the cross-complaint, 25 percent of the attorney 

fees from the Reddick matter was set aside pending the 

outcome of the Cochran Firm’s declaratory relief action. 

However, the terms of the MOU were not that 25 percent of 

the net attorney fees would be set aside. Rather, the terms 

explicitly provide for Seck to be paid 25 percent of the net 

attorney fees. Because the Cochran Firm refused to do so, 

the firm breached the MOU causing Seck to suffer damages. 

The Cochran Firm spends a portion of its briefing on 

the amount or lack of significant time Seck spent working on 

the Reddick matter. As the Cochran Firm admitted in 

discovery responses, the negotiated 25 percent of attorney 

fees was not based on the amount of work that Seck 

performed on the listed cases. Furthermore, the MOU 

specifically states that “Seck [h]ad undertaken substantial 

efforts to secure the effective representation of the 

plaintiff(s) [in a specified list of cases] during her tenure 

with The Cochran Firm,” and the agreement was made and 

based on the representations made by Seck “that she worked 

7 The same can be said for the October 29, 2019 stipulation 

wherein the parties agreed that Seck would pay specified percentages 

for a list of certain cases that she took with her after leaving the 

Cochran Firm. The firm does not dispute the enforceability of this 

separate fee sharing agreement.
13

on these cases in some capacity.” Thus, the specific amount 

of time that Seck spent on the Reddick matter or any of the 

other cases listed in the MOU does not render the fee 

sharing agreement unenforceable. 

Therefore, the Cochran Firm has failed to demonstrate 

the trial court erred in granting Seck’s motion for summary 

judgment.8

8 At oral argument, the Cochran Firm argued for the first time 

that the trial court erred in dismissing its declaratory relief action as 

moot. By raising this argument for the first time at oral argument, the 

Cochran Firm has forfeited the issue. (Daniels v. Select Portfolio 

Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1185 [“‘[w]e will not 

consider an issue not mentioned in the briefs and raised for the first 

time at oral argument’”], disapproved on another ground in Sheen v. 

Wells Fargo Bank, N.A. (2022) 12 Cal.4th 905, 948, fn. 12; Haight 

Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 

Cal.App.4th 1539, 1554, fn. 9 [same].) 
14

DISPOSITION

The judgment is affirmed. Seck and Seck Law, P.C. 

are awarded costs on appeal. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MORI, J.

We concur: 

CURREY, Acting P.J.

ZUKIN, J.

*

* Judge of the Los Angeles Superior Court, assigned by the Chief 

Justice pursuant to Article VI, section 6, of the California Constitution.