facts and seeks the same recovery as LawFund’s breach of fiduciary duty and

conversion claims. See McBride v. Boughton, 20 Cal. Rptr. 3d 115, 127 (Ct. App.

2004) (“When a common count is used as an alternative way of seeking the same

recovery demanded in a specific cause of action, and is based on the same facts,

the common count . . . must stand or fall with” the underlying cause of action.).

4. The bankruptcy court did not abuse its discretion by denying LawFund

leave to amend its claims against Buchalter because amendment would be futile.

See In re Turner, 859 F.3d at 1151.

3 5. The bankruptcy court properly dismissed LawFund’s breach of contract

claim against the Trust regarding the Trust’s failure to cooperate in suing Buchalter

for malpractice. LawFund failed to allege sufficiently that the parties’ agreements

required that the Trust cooperate in prosecuting a malpractice claim against

Buchalter.

The bankruptcy court determined in a prior related action that the

malpractice claim was not assigned under the parties’ agreements because, among

other reasons, California law prohibits the assignment of legal malpractice claims.

LawFund’s contention that the Trust nevertheless relinquished its right to manage

the malpractice claim is unpersuasive. The clause stating that the Trust was

“assigning the proceeds from any recovery on its personal and non-assignable

Connected Claims” did not give LawFund the authority to manage the malpractice

claim or require the Trust to prosecute the malpractice claim. And the agreements’

definition of “Claims” does not encompass the malpractice claim because the

defendant’s liability must “aris[e] out of [the] loan transaction by Fortress,” and a

malpractice claim against Buchalter does not do so.

6. Likewise, the bankruptcy court properly dismissed LawFund’s claim for

declaratory relief against the Trust because it rests on the allegations that the Trust

breached its agreements by failing to cooperate with suing Buchalter for

malpractice. And the bankruptcy court did not abuse its discretion by denying

4 LawFund leave to amend its claims related to the Trust’s failure to cooperate with

suing Buchalter for malpractice because amendment would be futile. Id.

7. However, the bankruptcy court erred in dismissing LawFund’s breach of

contract claim against the Trust arising from LawFund’s not receiving its share of

the Rosen Plan payments per the parties’ agreements. LawFund alleged that

Buchalter, as attorney for the Trust, is the Trust’s agent and that the Trust is

vicariously liable for Buchalter’s actions in withholding the Rosen Plan payments.

“The relationship of attorney and client is one of agent and principal.”

Shafer v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone, 131 Cal. Rptr.

2d 777, 788 (Ct. App. 2003). “Hence, the client as principal is bound by the acts

of the attorney-agent within the scope of his actual authority (express or implied)

or his apparent or ostensible authority; or by unauthorized acts ratified by the

client.” Blanton v. Womancare, Inc., 696 P.2d 645, 649 (Cal. 1985) (citation and

internal quotation marks omitted); see also CPI Builders, Inc. v. Impco Techs.,

Inc., 114 Cal. Rptr. 2d 851, 856 (Ct. App. 2001).

Here, construing the allegations in the light most favorable to LawFund,

LawFund sufficiently alleged that Buchalter was acting within the scope of its

authority as the Trust’s attorney when receiving and distributing the Rosen Plan

payments. The Trust’s reliance on Barenborg v. Sigma Alpha Epsilon Fraternity,

5 244 Cal. Rptr. 3d 680, 693 (Ct. App. 2019), is misplaced. That case does not

concern an attorney-client relationship.

Each party shall bear its own costs on appeal.

AFFIRMED in part; REVERSED in part; and REMANDED.

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