Mann v. Hernandez
Filed 11/5/13 Mann v. Hernandez CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
TWO
ROBERT MANN et al.,
Plaintiffs and Appellants,
v.
ROSA HERNANDEZ et al.,
Defendants and Respondents.
B240546
(Los Angeles
County
Super. Ct.
No. BC454053)
APPEAL from
a judgment of the Superior Court
of
County. John L. Segal,
Judge. Affirmed.
Robert Mann
and Donald W. Cook, in pro. per., for Plaintiffs and Appellants.
Henrichs
Law Firms, John Henrichs and Stephanie M. Levy for Defendants and Respondents.
_________________________
The issue on appeal is whether the trial court abused its
discretion in the manner in which it calculated an award of contingent attorney
fees to a client’s discharged attorneys, who claim they are entitled to
additional fees. We find no abuse and
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2007,
respondent Rosa Hernandez (Hernandez) retained appellants Robert Mann (Mann)
and Donald W. Cook (Cook), and nonparty attorneys Cynthia Anderson-Barker
(Anderson-Barker) and Jeffrey Geren (Geren) (collectively, Mann & Cook
attorneys), to represent her in connection with claims arising from an incident
on May 16, 2007, in which she was sexually assaulted by a police officer from
the City of Bell. Hernandez entered into
a written contingent fee agreement with Mann, Cook and Anderson-Barker, all
three of whom apparently work together. The
Mann & Cook attorneys filed two civil rights lawsuits on behalf of
Hernandez, one in state court and one in federal court. The actions were stayed pending a criminal
investigation. In May 2008, the federal
government filed criminal charges against
the officer.
In March
2009, Hernandez discharged the Mann & Cook attorneys, and substituted in respondent
Luis A. Carrillo (Carrillo). Hernandez
later testified that she discharged the Mann & Cook attorneys because they
rarely responded to her inquiries. Her
husband testified that she was also unhappy with the Mann & Cook attorneys because
they did not pay her a promised monthly amount. Carrillo and Hernandez also entered into a
contingent fee agreement. Carrillo then associated
with another attorney, Dale Galipo.
In July
2009, the police officer entered a guilty plea to a felony charge of violating
Hernandez’s civil rights. He was
sentenced in December 2010 to a prison term of nine years. Prior to sentencing, Hernandez and the City of
Bell settled her claims for
$750,000. Pursuant to the fee agreement
between Hernandez and Carrillo, 40 percent of the gross recovery of $750,000—or
$300,000—was allocated as attorney fees Hernandez owed for the prosecution of
the two civil lawsuits.
Following
unsuccessful efforts to obtain an accounting from Carrillo, Mann and Cook filed
suit against Hernandez and Carrillo to recover their attorney fees. The case proceeded to a bench trial, and Mann
and Cook sought $184,000 from the $300,000 in attorney fees. There was no dispute that the $300,000 was
sufficient to cover the fees of the Mann & Cook attorneys and
Carrillo. The trial court ultimately awarded
Mann and Cook $124,470, which represented 41.47 percent of the $300,000 in attorney
fees. The trial court calculated the
amount based on the hourly rate times hours of some, but not all, of the Mann
& Cook attorneys, and awarded an additional $50,000 for “added value†to
the case, including strategy decisions regarding the use of the criminal conviction,
the experience of the attorneys, the factual investigation that benefitted
Carrillo, and the contingency risk factor. Mann and Cook now appeal, claiming they are
entitled to additional fees.
DISCUSSION
Mann and Cook contend that the
trial court miscalculated their attorney fees because it (1) considered only
their hours without determining the “pro-rata share of both the discharged
attorneys and the current attorney in the contingency fee recovery†pursuant to
Cazares v. Saenz (1989) 208
Cal.App.3d 279 (Cazares), and (2) improperly
made wholesale exclusions of attorney and paralegal time.
I. Standard of Review
Because the sole issue before us is
the amount of attorney fees awarded, our review is deferential. (Thayer
v. Wells Fargo Bank (2001) 92 Cal.App.4th 819, 832.) “‘The “experienced trial judge is the best
judge of the value of professional services rendered in his court, and while
his judgment is of course subject to review, it will not be disturbed unless
the appellate court is convinced that it is clearly wrongâ€â€”meaning that it
abused its discretion.’†(
Cal.4th 1084, 1095.)
II
Is Not Applicable
Forty-one years ago, our Supreme
Court held that a client has an absolute right to discharge an attorney at any
time and that “an attorney discharged with or without cause is entitled to
recover the reasonable value of his services rendered to the time of discharge.†(Fracasse
v. Brent (1972) 6 Cal.3d 784, 790, 792 (Fracasse).) As later explained in Mardirossian & Associates, Inc. v. Ersoff (2007) 153
Cal.App.4th 257: “‘The most useful
starting point for determining the amount of a reasonable fee is the number of
hours reasonably expended on the litigation multiplied by a reasonable hourly
rate. This calculation provides an
objective basis on which to make an initial estimate of the value of a lawyer’s
services. The party seeking an award of
fees should submit evidence supporting the hours worked and rates claimed.’ [Citation.] However, providing evidence as to the number
of hours worked and rates claimed is not the end of the analysis in such a
quantum meruit action. The party seeking
fees must also show the total fees incurred were reasonable. Factors relevant to that determination include
‘[t]he nature of the litigation, its difficulty, the amount involved, the skill
required in its handling, the skill employed, the attention given, the success
or failure of the attorney’s efforts, the attorney’s skill and learning,
including his [or her] age and experience in the particular type of work
demanded.’ (Los Angeles v. Los Angeles Inyo-Farms Co. (1933) 134 Cal.App. 268,
276, cited with approval in Fracasse,
at p. 791; . . .†(
Despite our Supreme Court’s
pronouncement and more than 40 years of precedent, Mann and Cook take the
position that the trial court should have calculated their fees pursuant to
In
Roy Cazares, to work on a personal injury case.
(Cazares, supra, 208
Cal.App.3d at pp. 282–283.) Mr.
Cazares was a partner in a two-man law firm, Cazares & Tosdal. Mr. Saenz was not comfortable with Mr. Tosdal
and was not willing to work with him. (
Mr. Cazares and Mr. Saenz agreed to split the contingency fee 50/50. (Id.
at p. 283.) Mr. Cazares worked on
the case for two and one-half years before the Cazares & Tosdal partnership
was terminated and another year before he was appointed to the bench. (Ibid.) He urged Mr. Saenz to accept Mr. Tosdal’s
help, but Mr. Saenz refused. (
partnership sought one-half of the attorney fees Mr. Saenz had collected. (Id.
at p. 284.) The
Cazares’s inability to complete the agreement discharged all obligations under
the agreement, subject only to Mr. Cazares’s right to recover the reasonable
value of the services rendered before his discharge. (Id.
at p. 282.) The
fees should be calculated pro rata, “where the numerator is the value of the
legal services rendered by the particular attorney or firm at issue and the
denominator is the aggregate value of all the legal services rendered by any
attorney in the case.†(
did not involve successively retained attorneys, but attorneys who expressly
agreed to share a contingent fee. (
p. 290, fn. 13 [“this case does not involve a client’s retention of
successive attorneysâ€].) Unlike
agreement to divide the contingent fee pro rata. Thus, the trial court here was not called
upon to determine what portion of an incomplete contract was performed by which
attorneys. Cazares applies when, unlike here, there are multiple attorneys
seeking compensation from a pot capped by the contingent fee, which is
insufficient to satisfy the quantum meruit claims by more than one attorney.
It is
undisputed here that the $300,000 contingent fee was sufficient to satisfy the
fees of all attorneys involved. Thus,
the traditional Fracasse rule
applied. Only where the contingent fee
is insufficient to meet the quantum meruit claims of both discharged and
existing counsel, does the trial court distribute the contingent fee among all
discharged and existing attorneys in proportion to the time spent on the case
by each attorney. (Spires v. American Bus Lines (1984) 158 Cal.App.3d 211, 216.)
Mann and
Cook argue that the trial court should nevertheless have used the
parties agreed on that formula. To be
sure, the trial court asked the parties more than once how it should calculate
the attorney fees of Mann and Cook. But the portions of the record cited by the
parties seem to reflect fluctuating responses by the parties. Moreover, Mann’s and Cook’s position is not
significantly enhanced even if Cazares
applied. Cazares recognized that the trial court retained the discretion to
adjust a pro rata award “upward or downward to account for difficulty of the
work or other relevant factors.†(
here, by awarding Mann and Cook an extra $50,000 for the value they added to
the case.
We conclude
that the trial court did not err in calculating the attorney fees of Mann and
Cook pursuant to the traditional Fracasse
rule.
III. No Abuse of Discretion
Mann and
Cook contend that the trial court abused its discretion by failing to award all
of the time of the Mann & Cook attorneys.
Again, we disagree.
Mann and
Cook complain that the trial court was simply “wrong†in not awarding any time
for attorneys Geren and Cook, without citing any authority. It is clear from the record that the trial
court carefully reviewed the timesheets. Indeed, as noted by the trial court in its
statement of decision, the court “reviewed and analyzed, in detail, all of the
time records and the documents submitted by the parties, and considered the
testimony of the witnesses including their demeanor and credibility.†The court explained its reasons for excluding
the time of Geren and Cook. The trial
court stated that while Geren was the contact person, he performed duplicative
and unnecessary tasks, and did not have the expertise and knowledge to handle
the case, which is why he brought in Mann.
The trial court did not award any of Cook’s time “because he admittedly
was not very involved in the case,†his time was “essentially duplicative of
Mr. Mann’s,†and “most of the tasks that are on his time sheets are covered by
Mr. Mann’s time sheets.†The trial court
also noted that it was awarding all of Mann’s time at $700 an hour, and stated
“I just didn’t think the extra partner at that level was reasonable.â€
Mann and
Cook next complain that the trial court erred in not reimbursing Anderson-Baker
for any of the time she spent on a DUI matter for Hernandez. They point out that Hernandez was arrested
for DUI about two months after she complained to the Bell police department
about being sexually assaulted by one of its officers, and therefore it was
reasonable to assume that the DUI arrest might be retaliatory. But the trial court explained that the DUI
case was not covered by the language in the retainer agreement with Hernandez,
which expressly stated that “no other services are covered by this agreementâ€
other than the sexual assault that occurred on May 16, 2007. The trial court also found that the DUI case
should have been referred to a criminal lawyer from the beginning.
Finally,
Mann and Cook complain that the trial court abused its discretion in not
compensating for any of the time spent by a paralegal and a law student. It is true that the trial court gave no
explanation for its decision not to award their time. But that does not mean the trial court abused
its discretion. The court awarded time
for another paralegal. Our own review of
the timesheets shows that the second paralegal spent a total of 22.35 hours
from June 2007 through September 2008, indicating that she was not heavily involved
in the case, and that the law student spent a total of 20.25 hours, mostly on
telephone calls.
In “fixing the fees of attorneys,
the [trial] court is vested with a wide discretion and the court’s award of an
amount for such fees will be disturbed only when it is manifest that there has
been a palpable abuse of such discretion.
[Citations.]†(
Co., supra, 134 Cal.App. at p. 274.)
“‘The value of legal services performed in a case is a matter in which
the trial court has its own expertise.
[Citation.] The trial court may
make its own determination of the value of the services contrary to, or without
the necessity for, expert testimony.’†(
Cal.4th at p. 1098.) Here, the
trial court reviewed the timesheets and other documentary evidence presented by
the parties and heard the testimony at trial.
On the record before us, we do not find an abuse of discretion.
DISPOSITION
The judgment is affirmed. Respondents are entitled to recover their
costs on appeal.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________________,
J.
ASHMANN-GERST
We concur:
_______________________________,
P. J.
BOREN
_______________________________, J.
FERNS
trial court found that Carrillo’s timesheets were not credible; they contained
errors and inconsistencies and appeared to have been made after the fact as the
trial approached. While the trial court
noted that it would have been difficult to value Carrillo’s services given his
inaccurate time records, the court correctly found that under the
required to evaluate his time.
Judge of the Los Angeles
Superior Court, assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
