Halimi v. Grant
Filed 10/2/13 Halimi
v. Grant CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
GEORGE M. HALIMI,
Plaintiff, Cross-defendant and
Appellant,
v.
DENNIS GRANT,
Defendant, Cross-complainant and
Appellant.
B240730
(Los Angeles County
Super. Ct. No. BC453298)
APPEAL
from a judgment of the Superior Court of
County, Susan Bryant-Deason and Victor E. Chavez, Judges. Affirmed.
George
M. Halimi, in pro. per., for Plaintiff, Cross-defendant and Appellant.
Kerendian
& Associates, Shab D. Kerendian, Shawn S. Kerendian, Erika P. Licon, Verlan
Y. Kwan and Julie R. Woods for Defendant, Cross-complainant and Appellant.
*
* * * * * * * *
Plaintiff, cross-defendant and
appellant George Halimi is
a lawyer who represented defendant, cross-complainant and appellant Dennis
Grant in regard to his rights as a beneficiary of the trust of his late
mother. After the trust action was
settled, Halimi sued Grant for unpaid legal fees. Grant filed a cross-complaint against Halimi
pleading professional malpractice and other causes of action. The trial court sustained the demurrer to
Halimi’s first amended complaint without leave to amend as to the first through
fourth causes of action but permitted the filing of a second amended complaint
for quantum meruit. At the beginning of trial, Halimi voluntarily
dismissed this complaint, and a three-day court trial ensued on the
cross-complaint. The trial court awarded
Grant $200,000 on the cross-complaint.
Halimi and Grant each appeal from the judgment. We affirm.
1. The
Trust Action
Pursuant to the 2005 amendment to
her trust, Grant’s mother designated Grant as the sole beneficiary. In 2006, Linda Goldman-Ofer (Ofer), Grant’s
sister, induced their elderly and mentally incompetent mother to amend the
trust to designate both Grant and Ofer as beneficiaries, in equal shares as to
the personal trust assets. Grant
retained Halimi to represent him in a challenge to the 2006 amendment. Halimi filed a petition to invalidate that
amendment more than 120 days after Ofer had given a trustee’s
notification. The probate court
sustained Ofer’s demurrer to the petition on the ground it was not timely and
granted leave to amend. The amended
petition merely alleged the challenge to the 2006 trust amendment had been
filed within the requisite 120 days, which was incorrect. Ofer moved for summary judgment on the ground
the petition was untimely.
The motion was scheduled to be heard
about a month after mediation. During
mediation, Grant and Ofer entered into a settlement agreement whereby Ofer
would receive a total of $531,365.88 of the trust’s personal assets and Grant
would receive only $653,483.69, or 60 percent of the personal assets in
the trust at the time of settlement, instead of 100 percent of all trust
personal assets if the 2006 trust amendment had been declared void.
approved the settlement.
2.
This Action
In the current case, Halimi filed a
first amended complaint for breach of contract, conversion, constructive trust
and common count. The trial court (J.
Susan Bryant-Deason) sustained Grant’s demurrer to this pleading without leave
to amend but allowed Halimi to file a second amended complaint with a single
cause of action for quantum meruit.
Halimi filed a second amended complaint for quantum meruit but dismissed
this complaint on the first day of trial.
The case
went to trial only on Grant’s operative cross-complaint. Following trial, the court (J. Victor Chavez)
entered judgment for Grant on his professional negligence claim. The trial court found Halimi could have
alleged facts to establish tolling of the statute of limitations to challenge
the trust. Ofer had not only used undue
influence to persuade their mother to change the trust terms when she was not
competent to understand what she was doing, but she had also fraudulently
misrepresented to Grant the terms of the amended trust. Yet, at no time had Halimi sought leave to
amend the petition to allege Ofer’s fraudulent misrepresentations that had
misled Grant concerning the terms of the trust.
Worse, Halimi advised Grant he would likely lose the summary judgment
motion and should settle the trust dispute as favorably as possible before the
court ruled on the motion. The court
found if Halimi had alleged financial elder abuse and tolling of the statute of
limitations due to Ofer’s fraud, the trust action would have settled more
favorably to Grant. The court awarded
Grant $200,000 as damages.
On
appeal, Halimi contends the trial court erred in sustaining the demurrer and
dismissing the four causes of action pleaded in the first amended
complaint. He also asserts eight errors
arising from the trial on Grant’s cross-complaint.
In his appeal, Grant challenges the
award of $200,000 on his cross-complaint and contends the award instead should
have been $531,365.88, which is the amount Ofer received in the trust
settlement.
For the reasons explained below, we
affirm the judgment.
1. Grant’s
Appeal
In the interest of brevity, we
discuss first Grant’s appeal of the judgment in his favor on his
cross-complaint. His opening brief
devotes only three pages to the argument that the court erred by awarding
damages of $200,000 and not $531,365.88 on the professional negligence cause of
action. Grant frames
his argument as a pure question of law and presents no substantial evidence
challenge. Grant asserts the purely
legal question presented in his appeal is whether the trial court awarded damages
in conformance with Civil Code section 3333, which provides the measure of tort
damages is “the amount which will compensate for all the detriment proximately
caused thereby, whether it could have been anticipated or not.â€
Grant is mistaken that his challenge to the damages
awarded presents a question of law. His
contention that the court was required to award $531,365.88 in damages hinges
on the factual issues whether substantial evidence supports the trial court’s
$200,000 award, and whether the court arbitrarily and capriciously ignored
substantial evidence supporting a $531,365.88 award. Yet, Grant makes no effort to summarize the
damages evidence at trial. Rather, for
the most part, he simply cites to portions of the reporter’s transcript regarding
his counsel’s closing arguments to the trial court. The only citations to evidence are references
to three exhibits: a document amending the trust in 2006, a letter from
defense counsel to Halimi, and the settlement agreement in the probate court
action.
An
appellant forfeits his or her claims of error by failing to state all of the evidence fairly in his or her brief. (Foreman
& Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th
1262, 1274.) We therefore find Grant has
forfeited the right to appellate review of his inadequate damages claim by
failing to provide in his brief relevant record references to the evidence
pertaining to his claim.
2. Halimi’s
Appeal
title="">[1]
a. Sustaining of demurrer and
dismissal of four causes of action
Halimi contends the trial court erred in
sustaining Grant’s demurrer to the first amended complaint without leave to
amend because, contrary to Grant’s demurrer, their contingency fee agreement
fully complied with section 6147, subdivision (a)(3) of the Business and
Professions Code. We disagree.
“ ‘When a demurrer is sustained, we determine whether
the complaint states facts sufficient to constitute a cause of action.
[Citation.] And when it is sustained without leave to amend, we decide
whether there is a reasonable possibility that the defect can be cured by
amendment: if it can be, the trial court has abused its discretion and we
reverse; if not, there has been no abuse of discretion and we affirm.
[Citations.] The burden of proving such reasonable possibility is
squarely on the plaintiff.’ [Citations.]†(Zelig v. County
The
first amended complaint alleged Halimi and Grant entered into a written
retainer agreement, a copy of which was attached, whereby Halimi agreed to
provide Grant legal services in the trust action, including the filing of a
petition to vacate and declare void the 2006 trust amendment based on Ofer’s
alleged fraud. In return, Grant agreed
to pay Halimi 33 percent of the sum Grant recovered. Halimi alleged he assisted Grant in reaching
a settlement in the trust action but that, except for payment to Halimi of
$59,138.37, Grant refused to pay the additional contingent fee due.
A
retainer agreement with a contingency fee provision generally must comply with
the mandates of section 6147 of the Business and Professions Code. In relevant part, the contingency fee
contract must be in writing, signed by both the attorney and client, and “shall
include, but is not limited to, all of the following: [¶] .
. . [¶]
(2) A statement as
to how disbursements and costs incurred in connection with the prosecution or
settlement of the claim will affect the contingency fee and the client’s
recovery. [¶]
statement as to what extent, if any, the client could be required to pay any
compensation to the attorney for related matters that arise out of their
relationship not covered by their contingency fee contract. This may include any amounts collected for
the [client] by the attorney
Failure to comply with any provision of this section renders the
agreement voidable at the option of the [client], and the attorney shall
thereupon be entitled to collect a reasonable fee.†(§ 6147, subds. (a)(2), (3) &
(b).)
contingency fee contract between Halimi and Grant provides: “Attorney[] fee[s] shall be contingent upon
vacating and declaring void the [2006 Trust Amendment], and all contested
matters, including recovery of settlement, arbitration award, court judgment,
and/or punitive damages (hereinafter referred to as ‘Recovery’). . . . Bearing in mind that the contingency fee is
negotiable, [Grant] agrees that the following fee arrangement is fair and reasonable,
and to pay [Halimi] the following amount:
Thirty three percent (33%) of the total interest of [Grant] from the
benefit received by [Grant] from litigating the Declaration of Trust and any
amendment thereof.â€
Thus,
Halimi’s right to collect a fee was “contingent upon vacating and declaring
void the [2006 trust amendment], and all contested matters,†which never
happened. Additionally, the contingency
fee contract did not comply with Business and Professions Code section 6147,
because the contract did not contain “[a] statement
as to how disbursements and costs incurred in connection with the prosecution
or settlement of the claim will affect the contingency fee and the client’s
recovery†and “[a] statement as to what extent, if any, the client could be
required to pay any compensation to the attorney for related matters that arise
out of their relationship not covered by their contingency fee contract,â€
specifically the settlement of Grant’s claim against Ofer without the vacating
and voiding of the 2006 agreement.
In view of the above deficiencies,
this contingency fee contract was voidable at the option of Grant. Grant stated in his demurrer that he “has
voided the contingency fee agreement between [Halimi] and himself.†Halimi conceded that fact in his second
amended complaint: “Subsequent to
signing of the Settlement Agreement by [Grant, Grant] has declared void the
[contingency fee]†contract. The trial
court properly sustained the demurrer to the first amended complaint without
leave to amend because all of the causes of action were based on the void
contingency fee contract.
b. Judgment in favor of Grant on
his cross-complaint against Halimi
Halimi asserts eight errors were
made at trial. Akin to Grant’s appeal,
Halimi contends in his opening brief that his appeal presents pure questions of
law and that “there are no disputed facts.â€
However, many of Halimi’s claims of error concern the court’s findings
of fact as set forth in the statement of decision. For example, in his “error # 2†claim, he
asserts the court erred in finding Halimi damaged Grant in the trust action by
failing to assert the tolling of the statute of limitations, with the
consequence Grant felt pressured to settle, because Ofer’s pending summary
judgment motion based on the statute of limitations gave Ofer settlement
leverage against Grant. In his “error
# 3†claim, Halimi asserts the court erred in finding he was negligent by
failing to plead elder abuse, because the probate court entered an order that
“deferred†such pleading and proof of elder abuse. In his “error #4†claim, Halimi asserts the
court also erred in finding he was negligent by failing to plead elder abuse in
the trust action, because the substance and effect of the petition he filed on
behalf of Grant essentially constituted an elder abuse claim. In his “error #5,†“error #6,†and “error #
7†claims, Halimi challenges the court’s findings of fact concerning the
damages Grant sustained as a result of Halimi’s negligence. Manifestly, each of these claimed errors
concerns the adequacy of the evidence and may not be resolved as pure questions
of law.
Moreover, Halimi presents his view of the evidence with
few citations to the record and no attempt to provide a full and fair summary
of the evidence. In assessing whether substantial evidence supports a judgment, the
appellate court views all factual matters in the light most favorable to the
prevailing party, resolving all conflicts and indulging all reasonable
inferences from the evidence to support the judgment.
(
571.) An appellant may not include only
favorable evidence in his or her brief rather than all “significant
facts.†(In re S.C. (2006) 138 Cal.App.4th 396, 402.) An appellant forfeits any claim of error by
failing to state all of the evidence fairly in his brief. (Foreman
& Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881;
Agency, supra, 75 Cal.App.4th at
p. 1274.) We find therefore Halimi
has forfeited the right to appellate review of the adequacy of the evidence to
support the factual findings of the trial court by his failure adequately to
set forth in his appellate brief the evidence pertaining to the claims of
error.
Halimi also asserts two claims of
error in which he contends, in effect, the court abused its discretion, i.e.,
by allowing Grant to call an expert witness who was not disclosed until trial
and by “adopting a defective statement of decision.â€
Halimi contends the trial court erred in
allowing Grant to call Frederick Seymour, over objection, to testify as an
expert witness at trial. Grant had not
named Mr. Seymour as a witness during their meet and confer conference or in
the joint witness list. After the filing of the joint witness list and shortly before
trial, Grant retained Mr. Seymour. Grant
advised Halimi of the retention soon afterward but Halimi did not ask to take
Mr. Seymour’s deposition. No party had
served a demand for the exchange of expert witness information pursuant to the
provisions of the Code of Civil Procedure.
Halimi told the trial court he had
“an issue with the expert†because he had not been disclosed as a witness on
the joint witness list. He did not,
however, move to exclude the testimony of Mr. Seymour. Nonetheless, the trial court discussed with
counsel at some length the potential prejudice to Halimi of permitting Grant to
call the expert to testify. The court
reasoned that although Halimi had not requested an exchange of expert
designations, he was entitled to know who Grant’s experts would be so he could
obtain further discovery. The trial
court asked Halimi if he was requesting an opportunity to take the deposition
of Mr. Seymour and Halimi replied, “If it’s possible, Your Honor, yes.†The court offered to delay trial to permit
Halimi to take the deposition the next afternoon, but Halimi responded that it
was too late to arrange for a court reporter and to prepare for the deposition. Despite the court’s urging, Halimi declined
the offer.
We are not persuaded the trial court
abused its discretion. In a footnote in
his opening brief, Halimi asserted for the first time that he was prejudiced
because he had not retained his own trust expert in reliance on Grant not disclosing
his intent to call a trust expert witness.
This claim is not cognizable on this appeal because Halimi never raised
this claim of prejudice in the trial court.
(Kennemur
v. State of California (1982) 133
Cal.App.3d 907, 925 [argument never made to the trial court cannot be asserted
on appeal].)
Halimi also contends the trial
court erred in adopting Grant’s proposed statement of decision, because that
statement fails to explain how an allegation of financial elder abuse in the
trust action would have made any difference and how damages were
calculated. Halimi has forfeited his
claims of error by failing to bring these matters to the attention of the trial
court.
claiming omissions or ambiguities in the factual findings must bring the
omissions or ambiguities to the trial court’s attention’ pursuant to section
634 [of the Code of Civil Procedure].†(
Cal.App.4th 475, 494.) “To bring defects in
a statement of decision to the
trial court’s attention . . . , objections to a statement
of decision must be ‘specific.’ [Citation.]
The alleged omission or ambiguity must be identified with sufficient
particularity to allow the trial court to correct the defect. [Citation.]
‘By filing specific objections to the court’s statement
of decision a party pinpoints alleged deficiencies in
the statement and allows the court to focus on the facts or issues the party
contends were not resolved or whose resolution is ambiguous.’ [Citation.]â€
(Id. at p. 498.)
After Grant submitted a proposed
statement of decision, Halimi filed a written objection. Although he objected to five findings made by
the trial court, he did not identify or describe in what particulars the proposed
statement was defective nor describe or otherwise identify any specific issues
he wanted addressed in that statement.
Instead, Halimi merely objected to “the entire†proposed statement and
stated: “The issues objected [
the Proposed Statement of Decision[.] As
such, it is impossible to pinpoint each issue by page number and line
number. The essential objections by
Halimi are based on the [five enumerated] findings of [the trial court] at
trial.†Similarly, Halimi challenged the
statement of decision in his notice of intention to move to set aside and
vacate the judgment, which had not yet been entered, and for entry of another
and different judgment, but he failed to support his claims of error with
specific references to the particular parts of the statement of decision that
were subject to his challenges. We find
Halimi has forfeited any claim of error he had regarding the statement of
decision.
The judgment is affirmed. Each party shall bear its own
GRIMES, J.
We
concur:
BIGELOW, P. J.
FLIER, J.
name="_ftn1" title="">[1]
We deny Halimi’s requests for judicial notice made in
footnotes in his opening brief rather than through a proper separate noticed
motion for judicial notice with a proposed order. (Cal. Rules of Court, rule 8.252(a)(1).)
