Dillingham & Murphy v. Geiche

Filed 6/20/07 Dillingham & Murphy v. Geiche CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Anatole Geiche appeals from a judgment entered in favor of plaintiff law firm Dillingham & Murphy, LLP (D&M), on its complaint for unpaid legal fees. Geiche, who appeared in propria persona in the trial court but is represented by counsel on appeal, contends that the trial court erred in granting D&Ms motion for summary judgment. Many of the arguments asserted by Geiche in the trial court were barely comprehensible. Some are plainly wrong. Many of the arguments asserted on appeal were not raised below. Nonetheless, a fair review of Geiches papers submitted in opposition to the motion for summary judgment reveals several triable issues of material fact that preclude summary adjudication. Accordingly, we must reverse the judgment and remand for further proceedings.[1]

Factual and Procedural History

Because the matter comes to us upon the granting of a summary judgment motion, we review the facts in the light most favorable to Geiche, the party opposing the motion. (PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 590.)

On March 5, 2004, D&M filed a complaint against Geiche to recover attorney fees for D&Ms limited representation of Geiche in connection with posttrial motions in consolidated wrongful eviction actions in which Geiche, appearing in propria persona, had already prevailed. The complaint in the present case alleges that in January 2002, Geiche signed a written retainer agreement by which Geiche agreed to pay [D&M] at set hourly rates for services performed by attorneys or legal assistants related to the consolidated action of Babbitt v. Geiche, San Francisco County Superior Court case #303589 and #305285 (Babbitt).[2] D&M alleged that Geiche breached the contract by failing to pay plaintiff $7,739.19 that was due for its services.

Geiche filed an answer generally denying the allegations of the complaint and alleging fraud as an affirmative defense. Geiche also filed a cross-complaint against D&M for fraud. Geiche alleged that The Retainer Agreement between [D&M] and [Geiche] was not a complete and final expression of the original, real, verbal agreement but it was a contract of adhesions incongruous with the real, verbal agreement. According to the cross-complaint, Curtis F. Dowling of D&M agreed to handle the . . . post-trial motions for attorneys fees. He assured [Geiche] that he will do it for $2000; and that if there would be more work, it could be only a little higher than that; but all this would be paid back to [Geiche] anyway as he is entitled, as the prevailing party [in the Babbitt action], to his attorney fees. . . . [] . . . [] . . . Dowlings promises were made . . . to induce [Geiches] reliance, so [he] would sign the Retainer Agreement which [D&M] planned to use as an instrument of extortion and that after the agreement was signed, Dowling made additional representations intended to lull [Geiche] into inaction and to deceive him.

D&M filed a motion for summary judgment on its complaint and on Geiches cross-complaint. In support of the motion, D&M submitted a declaration of Curtis Dowling. Dowling stated that on January 25, 2002, he received a telephone call from Geiche who asked if D&M could represent him with regard to posttrial motions for costs and attorney fees in Babbitt. Dowling advised Geiche that the costs of litigating the post-trial motions may exceed the potential recovery against the plaintiff/tenants. Dowling denied that he ever represented or implied to Mr. Geiche that D&Ms fees would be capped at $2,000.00 for all of the work attendant with the Babbittpost-trial motions, [or] that Geiche would be responsible to pay only those fees ordered by the court related to the post-trial motions. Rather, he insists that he advised Geiche that D&Ms services would be provided at an hourly rate for all services rendered and for all costs advanced on his behalf as reflected in the Retainer Agreement.

The agreement, which Geiche signed and returned to Dowling with an initial $2,000 retainer fee, provides that Geiche retained D&M to represent [him] in connection with the making of post-trial motions for attorneys fees and costs in [Babbitt] . . . . Matters beyond the scope of the undertaking recited in this paragraph will be handled only after separate negotiations and agreement.

Dowling states that the work he performed on the posttrial matters is reflected in D&Ms invoices, which are attached as exhibits to his declaration.[3] According to Dowling, Geiche terminated D&Ms representation on March 27, 2002.

In opposition to the summary judgment motion, Geiche submitted a declaration in which he acknowledged signing the agreement but stated that the agreement looked to him like a lousy bureaucratic formality. [4] According to Geiche, after he signed the agreement, he became very concerned about [Dowlings] honesty and involvement in the case. On February 6, he sent Dowling a letter, a copy of which accompanied by a certificate of mailing is attached to his declaration. In it, Geiche wrote, the Retainer Agreement here is nothing but a confusion as it has nothing to do with our real relation and agreement. According to it, your job here is not to file a couple motions, with $2000 of maximum payment, but to conduct some large, nebulous work of uncertain length. [] Werent our negotiation and actual terms short, simple and clear before you produced your Retainer Agreement form? How come then there is nothing there, in this form about them? Not even about your reduced fees which are to ensure your entire fees reimbursement. Instead, the agreement is full of very different terms. It isnt any agreement at all, but a sheer nonsense. [] What we agreed, it was that your fees will not exceed $2000, which was much higher than the reasonable fees of the court ($1000-1600) that other lawyers with whom I consulted believed would be granted by the court in this proceeding. Geiche explained that he signed the agreement in haste without studying. But now I am very concerned and very curious why you made me to sign such a sheer and total nonsense having nothing to do with the situation. As it is, I do not recognize this nonsense in its entirety.

On February 27, after receiving D&Ms first invoice, Geiche states that he was jolted . . . as the agreement with Dowling was that my payment to him will be no more that $2,000. I immediately called Dowling and was connected to him. To my objections, he replied with his customary long monologue. He said that actually his promise was $2000 or slightly more, so it turned to be slightly more. And that if I would look carefully at the statement, I would see that he applied the entire retainer to the invoice which can only be done when lawyer services are completed. And if I will look at the last page of Retainer Agreement, I would see that such returning of retainer means that his services are completed and that I will not be required to pay anything anymore. Geiche also submitted a letter addressed to Dowling dated March 5, in which he states, Your involvement in [Babbitt] being completed, please forward their entire files to me as soon as possible.

In response, D&M submitted a declaration stating that an attorney had reviewed D&Ms file and found no such letters.

At the hearing on the summary judgment motion, Geiche argued that the terms of the retainer agreement were irrelevant and that even under the terms of the agreement, the attorney fees charged by D&M were overblown. Geiche explained, Lots of those charges have nothing to do whatsoever [with the] contract. Contract is very explicit that Dowling would represent me only in [Babbitt] v. Geiche. [] Here very explicit that they dont want to represent me in any appeal. Well, here there is charges about appeal. The court granted the motion, explaining, The contract is very clear. The amounts sued for are generated under the contract pursuant to the terms of the contract. They cant be altered by an alleged oral agreement made prior to the signing of the contract. There is no suggestion that the contract was signed under circumstances of fraud or force or anything. Mr. Geiche had plenty of time to read it. He was urged to call back if he had any questions, he signed it. That is the governing relation. After the court ruled, Geiche attempted to clarify the ruling by asking, So the claim of overcharging, you found to be irrelevant? The court explained that All of your claims of overcharging are based on this oral agreement that was made. Geiche disputed the courts explanation, stating, I did not promise to pay for every charge he makes. What I said, the last charge had nothing to do with any oral agreement or with any written agreement. [] . . . [] . . . [T]he main contest here is not a contract but a gross overcharging.

The court entered a written order granting D&Ms motion for summary judgment and awarding D&M $7,739.19 in damages.[5] Geiche filed a motion for new trial or in the alternative to set aside and vacate judgment and enter another and different judgment. The motion was based in part on allegedly newly discovered evidence, including five additional letters that Geiche claimed to have sent Dowling between January and March 2002. The court denied Geiches motion and Geiche then filed a timely notice of appeal. [6]

Subsequently, the court awarded D&M attorney fees in the amount of $44,607.50. Geiche filed a second notice of appeal. The two appeals were consolidated for all purposes.

Discussion

1. Standard of Review

The standard of review applicable to summary judgment entered by the trial court is de novo. Our review of a summary judgment is limited to determining upon a de novo examination whether there was no genuine issue of material fact and the moving party was entitled to judgment as a matter of law. (Scroggs v. Coast Community College Dist. (1987) 193 Cal.App.3d 1399, 1401.) The purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute. [Citation.] The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues: the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings. [Citations.] The complaint measures the materiality of the facts tendered in a defendants challenge to the plaintiff's cause of action. [Citation.] The answer supplements that measure where the plaintiff is the moving party and the defendant relies upon an affirmative defense. It is incumbent upon a moving party plaintiff not only to show there is no material factual dispute with respect to its cause of action but also to show that there is no material factual dispute with respect to the defenses proffered by the defendant. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.)

2. D&Ms Complaint for Breach of Contract

Although Geiches papers were less than clear, read together and in a light most favorable to Geiche, his opposition sufficiently raises at least two triable issues of material fact as to D&Ms right to recover all of the fees it claims were due under the retainer agreement. We do not question the trial courts rejection of Geiches assertion that, contrary to the explicit terms of the written retainer agreement, the understanding was that Geiche would pay no more than $2,000 or the amount awarded by the court as attorney fees in Babbit. (Software Design & Application, Ltd. v. Price Waterhouse (1996) 49 Cal.App.4th 464, 469-470; Wagner v. Glendale Adventist Medical Center (1989) 216 Cal.App.3d 1379, 1386.) Nonetheless, the scope of D&Ms representation as stated in the agreement was only to represent [Geiche] in connection with the making of post-trial motions for attorneys fees and costs in Babbitt. Geiches eleventh affirmative defense alleges, Curtis Dowling falsified his itemized statements. Their charges were grossly inflated. And they, in part, relate to items not covered either by the real agreement or by the written Retainer Agreement.  In his opposition papers and at the hearing, Geiche argued not only that Dowling did not perform all of the work reflected in the invoicesthe competence of which assertion may well be questionedbut also that numerous entries in the invoices refer to time spent on matters not within the scope of the agreement. The invoices attached to Dowlings declaration appear to confirm Geiches assertion. Numerous entries are for time spent in connection with appeal of Judge Garcias SLAPP ruling. Judge Garcias order was entered in a different case (see fn. 2,ante) and, according to the retainer agreement, any work relating to such a matter was to be handled only after separate negotiations and agreement. Geiche argued that D&M was very explicit that they dont want to represent me in any appeal. Well, here there is charges about appeal. At the time I discussed it with Dowling, . . . it was very important issue, appeal. . . . [T]hat was discussion: If hes going to handle or not, but he was not hired to handle anything. He did not provide me any services whatsoever. By our calculation, D&Ms invoices include approximately $910 in fees which appear to relate to this separate matter. We see no basis in the record on which it can be determined as a matter of law that Geiche is obligated for these fees.

Secondly, according to Geiches declaration, apparently confirmed by his letter of March 5, D&Ms representation was terminated shortly after the hearing on March 4, 2002. Although Dowling contends that his representation was not terminated until March 27, 2002, this conflict in the evidence presents a triable issue. Geiche argued that there were further entries in the invoices which . . . had nothing to do with the contract. Attorney services were ended on the date of the hearing of the motion . . . . Yet he continued those services. [] . . . Motion was over. Thats what he was hired for. Dowling continued to charge for services through March 28, 2002. Geiches obligation to compensate D&M for the major portion of the March services thus depends on the resolution of the factual dispute as to when he terminated the firms representation.

Hence, the trial court erred in granting D&Ms motion for summary judgment.

3. Geiches Fraud Claim

Material factual issues also remain unresolved with regard to Geiches fraud claim. While the court undoubtedly was correct that consideration of the alleged oral statements made by Dowling prior to the signing of the written retainer agreement was barred by the parol evidence rule, Geiches fraud claim is based in part on additional statements made by Dowling after the agreement was signed that are unaffected by the parol evidence rule.

The parol evidence rule, codified in Code of Civil Procedure section 1856, subdivision (a), prohibits a party from resorting to extrinsic evidence of a prior or contemporaneous oral agreement to contradict a plain and unambiguous term of a fully integrated agreement. (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 186 (Charnay), italics added.) The rule is inapplicable, however, with respect to extrinsic evidence of promises made subsequent to the execution of the agreement. (Ibid.; Conley v. Matthes (1997) 56 Cal.App.4th 1453, 1465; Marani v. Jackson (1986) 183 Cal.App.3d 695, 699, fn. 2.) In Charnay, the plaintiff client filed a complaint alleging a cause of action for fraud and negligent misrepresentation against her former attorney. Charnay alleged at specifically identified times following her execution of the retainer agreement she confronted Cobert about the escalating attorney fees and costs she had incurred in this limited civil action and inquired whether it was worth continuing to litigate the matter. According to Charnay, Cobert assured her on each of these specified occasions that she need not be concerned about the mounting attorney fees because she would definitely prevail and recover those fees from the opposing parties at the end of the action. (Charnay v. Cobert, supra, at p. 185.) She did not prevail, however, and after trial was ordered to pay $580,000 in attorneys fees to the opposing party in addition to the $360,000 billed by her attorney. (Id. at p. 176.) The trial court sustained the attorneys demurrer in part on the ground that admission of his alleged oral promises was barred by the parol evidence rule because they directly contradicted the no guarantees provision of the written retainer agreement. The Court of Appeal reversed, explaining, Charnays allegations, however, involve promises made subsequent to the execution of the parties retainer agreement, not a prior or contemporaneous oral agreement. Accordingly, the parol evidence rule is simply inapplicable. (Id. at p. 186.)

Here, Geiche detailed through his letters and in his declaration statements allegedly made by Dowling subsequent to the entry of the retainer agreement. The statement that Geiche would not be required to pay anything anymore, allegedly made during a telephone conversation on February 27 after Geiche received D&Ms first invoice, may be interpreted either as modifying the agreement or as a false assurance that fraudulently induced Geiche to refrain from terminating the agreement at that point. Because these statements allegedly were made after execution of the written agreement, their consideration was not barred by the parol evidence rule and the trial court erred in excluding this evidence on that basis.[7] We of course express no opinion concerning the credibility of the conflicting evidence, but this conflict does preclude disposition by summary judgment.[8]

Disposition

The judgment is reversed. Geiche is to recover his costs on appeal.

_________________________

Pollak, J.

We concur:

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McGuiness, P. J.

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Siggins, J.

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Analysis and review provided by Carlsbad Property line Lawyers.

[1] In a consolidated appeal, Geiche challenges the trial courts order awarding D&M attorney fees. Because we reverse the judgment in A112349, we do not reach the merits of the consolidated appeal.

[2] The consolidated cases included Babbitt v. Geiche (Super. Ct. S.F. City and County, 1999, No. 303589) and Slough v. Geiche (Super. Ct. S.F. City and County, 1999, No. 305285), both of which were wrongful eviction actions brought against Geiche by his tenants. Geiche filed a cross-complaint against the tenants. In October 2001, the jury returned a verdict in the consolidated action finding against the tenants on their wrongful eviction claims and in favor of Geiche on his cross-complaints for breach of contract, but awarding Geiche no damages. Geiche also filed a separate action for breach of contract against Slough (Geiche v. Slough (Super. Ct. S.F. City and County, 2001, No. 318387) that was dismissed when the court granted a special motion to strike under Code of Civil Procedure section 425.16, the so-called anti-SLAPP statute. To the extent that the record on appeal is incomplete in this regard, we have, on our own motion, taken judicial notice of the trial court register of actions in the above cases.

[3] The first invoice was submitted to Geiche on February 26, 2002, for services rendered in January 2002 totaling $2,311.95. After crediting Geiche for the retainer fee, the outstanding balance was $311.95, which Geiche paid [s]hortly after receiving the invoice. Subsequent invoices for approximately $7,000 for work performed in February and March have not been paid.

[4] Geiches declaration explains further, Dowling . . . agreed to handle all my legal matters for the courts reasonable attorneys fees. The problem was only that his regular retainer was $2000 and, as he explained, by his firm regulation, it cannot be less. But he was absolutely certain that he will get this $2000 from the court back as reasonable attorneys fees, and thus this money will be returned to me. [] . . . Dowling explained [to] me that there is nothing special about these courts reasonable attorneys fees, and the way to get them is to reduce the hourly rate to the rate that courts regards reasonable, which is $140.00 for the cost motions. And he promised to reduce his hourly rates to $140. This scheme was not convincing to me, and Dowling offered me, and I accepted, that his fees would be just whatever reimbursement he will get from the Court, but all what I have to pay him is a $2,000 retainer, which as a retainer, must be returned to me as the retainer always have to be returned to the client upon the conclusion of attorneys work.

[5] The trial court found that Geiches fraud claim failed as a matter of law based on the following undisputed facts: Geiches fraud claim is based on alleged oral statements by attorney Dowling that D&M would cap its attorneys fees for all of its services to address the post-trial motions at the initial retainer amount of $2,000, and that Geiche was only responsible to pay D&M an amount held by the court as reasonable fees for Dowlings work on the post-trial motions. [] The terms of the Retainer Agreement directly contradict Geiches alleged oral statements made by Dowling. [] Geiche admitted that the alleged oral statements occurred before he received the Retainer Agreement from Dowling, that after he received the Retainer Agreement, he read it, he talked to Dowling about its terms, and he signed and sent the Retainer Agreement to Dowling. (Underscoring omitted.) The court explained that Geiches fraud claims must fail as a matter of law because [Geiches] alleged oral statements, which directly contradict terms of the written Retainer Agreement, are inadmissible under the parole evidence rule. The court found further that, as a matter of law, Geiche could not have justifiably relied upon the alleged oral statements of Dowling.

[6] Because we conclude that the court erred in granting the summary judgment motion based on the evidence that was before it when the motion was heard, we do not reach Geiches contentions with regard to the new trial motion, and we have not considered any of the letters submitted in support of that motion.

[7] The trial courts additional finding that Geiche could not reasonably have relied on Dowlings promises as a matter of law is similarly unsupportable. (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239 [ Except in the rare case where the undisputed facts leave no room for a reasonable difference of opinion, the question of whether a plaintiffs reliance is reasonable is a question of fact ].)

[8] Geiche has asserted for the first time on appeal that the retainer agreement is not enforceable because it fails to comply with Business and Professions Code section 6148 and rule 4-200 on the California Rules of Professional Conduct, and that the agreement constitutes a breach of D&Ms fiduciary duty. These arguments were not presented below and will not be considered for the first time on appeal. (Bardis v. Oates (2004) 119 Cal.App.4th 1, 14, fn. 6 [New theories of defense, just like new theories of liability, may not be asserted for the first time on appeal].) In any event, in view of the conclusions we have reached concerning the existence of triable factual issues, the resolution of these new issues is unnecessary for the proper disposition of the appeal.