Risner v. Freid and Goldsman

Filed 10/11/07 Risner v. Freid and Goldsman CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. John Shook, Judge. Affirmed in part, reversed in part and remanded.

Altshuler & Spiro and Bruce J. Altshuler for Plaintiff and Appellant.

Haight Brown & Bonesteel, Rita Gunasekaran, William G. Baumgaertner, and Jennifer K. Saunders for Defendants and Appellants.

Kathy M. Risner (Risner) appeals from a final judgment entered after a jury trial in favor of Freid and Goldsman, PLC, and Manley Freid (collectively F & G), in the amount of $246,707.38. Risner also appeals a separate award of attorney fees and costs entered in favor of F & G in the amount of $91,002.85. F & G cross-appealed from the attorney fee and cost award. We reverse and remand for further proceedings the trial courts award of prejudgment interest but affirm the judgment in all other respects. We also affirm the attorney fee and cost award.

CONTENTIONS

Risner contends that: (1) the trial court erred in failing to interpret the contract between the parties as a matter of law, instead submitting issues of contract interpretation and breach to the jury; (2) F & G improperly withdrew from representing Risner in her divorce action and therefore should not have been permitted to maintain this action for attorney fees against her; (3) the trial court erred in instructing the jury on both the written contract and common counts; (4) the trial court improperly refused Risners jury instructions on its defense theories; and (5) the trial court erroneously awarded prejudgment interest after entry of the special verdict.

Risner also contests the attorney fee award. She argues that, if the judgment is reversed, the fee and cost award should be reversed. She also criticizes F & Gs failure to provide a record of when their experts fees were incurred. F & G cross-appealed from the attorney fee award, arguing that the trial court abused its discretion in awarding less than the entire amount of fees claimed.

FACTUAL BACKGROUND

1. The Retainer Agreement

Risner was involved in prolonged divorce proceedings beginning in 1998 and ending with the entry of a stipulated judgment on May 7, 2003. Risners first divorce attorney, Arlene Colman-Schwimmer, withdrew from her role as counsel on or about May 22, 2000, when she retired from the practice of law. On the same day that she informed Risner of her impending retirement, Colman-Schwimmer arranged for Risner to meet with F & G. After a meeting, Risner agreed to retain F & G. Risner also agreed to provide a retainer of $350,000, some of which was obtained as a result of a civil contempt order entered against Risners former husband in the divorce action.

A retainer agreement dated May 23, 2000, was prepared by F & G and signed by Risner. The agreement explained that Risner had the financial responsibility to discharge and pay for all fees and costs which become due this office. The agreement stated that Risner would be billed for work performed by the firms attorneys at hourly rates, and set forth those rates. The agreement went on to explain that Risner was obligated to reimburse F & G for all out-of-pocket costs and/or pay us our standard charges for items such as travel expenditures, parking, long distance telephone calls, photocopying, facsimile costs, messenger services, court fees, including but not limited to filing fees and reporters fees, and the like that we incur in our representation of you. The agreement then specified: Costs of suit are to be paid to our office on demand.

In what Risner describes as the key provision regarding the due date for any unpaid fees and costs, the next paragraph states:

All unpaid fees and costs shall be due and payable at the time of the entry of the Further Judgment or at the time a Marital Settlement Agreement is signed, or at the time our office ceases to render services to you, whichever event first occurs. If said unpaid fees and costs are not paid timely, as set forth in this paragraph, then interest shall begin accruing at the rate of ten percent per annum until paid in full.

2. Continuing Discovery and the Order to Show Cause for Spousal Support, Attorney Fees and Costs

According to Risners testimony, at the time that she entered into the retainer agreement with F & G, Manley Freid told her that, The only way to handle my case was to get it to the courthouse steps and that would only be on the trial date, and that was the only target . . . and nothing else mattered because nothing else was going to end the case until it resolved on the courthouse steps. On August 22, 2000, shortly after he was retained, Mr. Freid informed the court that he would be ready for trial in about five months, or early 2001.

On October 24, 2001, F & G filed an order to show cause for spousal support and attorney fees and costs on behalf of Risner. F & G sought an order from the court requiring Risners former husband to pay $84,000 per month in pendente lite spousal support to appellant as well as not less than $306,941 in attorney fees plus the actual costs of litigating the divorce. According to the testimony of Lynanne Zirafi, an attorney at F & G who was working on Risners case at the time that the order to show cause was filed, the reasons for the filing were discussed in detail with Risner. Ms. Zirafi indicated that the spousal support Risner had received from her last order was nearly depleted. She also explained that a large amount of attorney fees . . . were due, and there were costs that were necessary in order to continue to try to obtain the evidence that we needed to go to trial. Ms. Zirafi explained that due to the complexity of Risners former husbands law practice, as well as his discovery tactics, it was extremely difficult to gather the necessary evidence. In addition, she explained, numerous experts needed to be paid, including a compensation expert, forensic accountants, and real estate appraisers.

Ms. Zirafi also testified that she had called the court prior to filing the order to show cause. The earliest hearing date available was in mid-January of 2002. Ms. Zirafi discussed with Risner the option of making the motion on an ex parte basis, but Risner concluded that it was unnecessary to file the motion ex parte.

3. F & Gs Motion to be Relieved as Counsel

Ms. Zirafi testified that she and Mr. Freid informed Risner by phone that they needed a bare minimum of $85,000 in order to conduct the discovery that was necessary for trial. Risner could not advance the funds necessary to conduct the discovery. F & G informed Risner that, as a result, F & G needed to file a motion to be relieved as counsel. Ms. Zirafi testified that Risner said she understood that if the court did not order her former husband to advance the necessary funds, F & G would be dismissed from the case. Risner responded that she was concerned but she understood why we were doing what we were doing.

On December 21, 2001, F & G filed a motion to be relived as counsel, in which it moved for an order permitting it to be relieved as attorneys of record in the event that [Risners] companion Order to Show Cause for fees and costs is denied; and trial shall be continued to allow [her] to retain new counsel. In his attached declaration, Mr. Freid explained to the trial court that, If the Court orders [Risners former husband] to pay the fees and costs necessary to complete discovery and prepare for trial, our firm will continue to effectively represent [her]. However, if the Court does not order [Risners former husband] to advance [her] costs, our firm has no choice but to request to be relieved as [Risners] attorneys of record as our firm cannot advance the $100,000 necessary to complete discovery and prepare for trial. The hearing date on the motion was set for the same date as the order to show cause.

On January 15, 2002, the trial court denied the order to show cause for spousal support, vacated the March 2002 trial date, and granted the motion for fees and costs in part by ordering Risners former husband to pay for several of the necessary depositions directly. The court also ordered $75,000 in pendente lite attorney fees to be paid by Risners former husband directly to F & G in four installments. The motion to withdraw was continued by the court until March 2002 and then again by stipulation to May 28, 2002.

At the May 28, 2002 hearing, Mr. Freid explained to the court that, while no additional documents regarding F & Gs motion to withdraw had been filed, F & Gs need for money to pay for the ongoing litigation remained critical. He stated: My office cannot continue to finance this case. I dont have the money. I cannot afford to do it. I cannot afford to pay lawyers. I certainly cannot afford to pay costs that I cannot get back immediately or deferred. He then explained that his office had received $60,000 of the $75,000 that Risners former husband was ordered to pay, but that the costs of the litigation continued to rise. Mr. Freid explained that he was owed approximately $286,000 and stated, I cant carry that kind of a bill . . . . Maybe there are other firms in town that can, but I cant. I cant continue to run up a bill in connection with the work that has to be done in this matter regarding discovery depositions, and et cetera, and not be paid. Mr. Freid asked the court for $250,000 as payment to the firm plus $219,000, which was the amount of an outstanding accountants bill, plus an additional $75,000 to pay for the accountants.

On June 7, 2002, the trial court issued an order denying Risners request for additional spousal support and attorney fees and costs and granting F & Gs motion to be relieved as counsel.

4. Risner Retains New Counsel and Settles the Divorce Action

According to F & G, Risner at no time objected to F & Gs motion to withdraw. At the time of the trial date, Risner indicated that she had already spoken with a new law firm about taking on the case. F & G worked with the new law firm, which ultimately did substitute in as counsel. In a declaration filed with the trial court, Mr. Freid indicated that once F & G was relieved as counsel, all the time it had spent transitioning the case to Risners new lawyers was performed at no charge to Risner.

Risners divorce case settled on the eve of trial in 2003.

PROCEDURAL BACKGROUND

1. The Fee Arbitration

Mr. Freid wrote two letters to Risner requesting payment of his outstanding legal fees of $246,592.81 upon conclusion of the divorce suit. When she did not respond, Mr. Freid gave her notice of her right to a fee arbitration.

Risner filed a petition for arbitration of the fee dispute, initially claiming a refund of about $150,000, which she subsequently reduced to about $43,000. The arbitrators ruled unanimously in F & Gs favor, awarding it all of the attorney fees requested minus the arbitration filing fee.

2. The Lawsuit

Risner rejected the arbitration award and filed a petition for trial de novo and a claim for damages against F & G for breach of the fee agreement. F & G cross-complained against Risner, alleging causes of action for breach of contract, account stated, open book account, and quantum meruit. F & G sought $246,592.81 in outstanding attorney fees plus interest at the legal rate from June 6, 2003, until paid.

Risner sought summary judgment/summary adjudication on F & Gs claim based on the language of the May 23, 2000 fee agreement. The motion was denied, and Risner sought a writ, which was denied by this court on September 2, 2005.

The case proceeded to a jury trial solely on F & Gs cross-complaint, except for Risners request for attorney fees in the event she prevailed at trial. To avoid confusion, F & G was referred to as plaintiff and Risner was referred to as defendant throughout the trial.

3. The Jury Verdict

At the conclusion of the testimony, the trial court submitted to the jury a special verdict. The special verdict form asked the following questions:

1. Did [F & G] and [Risner] enter into a contract? . . .

2. Did [F & G] do substantially all of the things the contract required [it] to do? . . .

If your answer to question No. 2 is yes, then answer question No. 3.

If you answer no, stop here, answer no further questions, and have the presiding juror sign and date this form.

3. At the time the motion to withdraw as attorneys of record was pending, was [Risner] in breach of her retainer agreement? . . .

If your answer to question No. 3 is yes, then answer question No. 4.

If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form.

4. [Was F & G] harmed by that failure? . . .

If your answer to question No. 4 is yes, then answer question No. 5.

If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form.

5. If you have answered yes to all of the above questions, what amount of money do you find will compensate [F & G]?

The jury unanimously answered yes to all of the above questions and found that F & G should be compensated in the amount of $246,707.38. On November 14, 2005, the trial court entered judgment in the amount of $246,707.38 plus interest at the rate of 10 percent per annum from the date of judgment until paid in full.

4. F & Gs Ex Parte Application For Prejudgment Interest and Motion for Attorney Fees

On November 23, 2005, F & G filed an ex parte application for an order correcting the judgment to include prejudgment interest. In its supporting memorandum of points and authorities, it argued that its cross-complaint specifically alleged damages in the principal amount plus interest from the dates the legal services were rendered. Citing Civil Code section 3287, subdivision (a), F & G argued that an award of prejudgment interest was mandatory. Over Risners objections, the trial court issued an order correcting the judgment to include prejudgment interest from June 7, 2002 to November 14, 2005, in the amount of $84,758.64.

As the prevailing party, F & G made a motion to recover $150,850.35 in attorney fees and costs pursuant to Business and Professions Code section 6204, subdivision (d). In the alternative, F & G sought the attorney fees incurred after it made an offer to compromise under Code of Civil Procedure section 998. Risner opposed the motion. Citing its discretionary power under Business and Professions Code section 6204, subdivision (d), the trial court awarded F & G $68,000 in attorney fees and $23,002.85 in costs.^[1]

Risner filed a timely appeal from the judgment entered against her and from the order awarding attorney fees and costs to F & G. F & G filed a timely cross-appeal seeking the full amount of attorney fees it had requested.

DISCUSSION

I. The Questions of Due Date and Any Purported Breach By F & G

Risners first claim is that F & G breached its own retainer agreement by withdrawing from the case. In making this claim, Risner first argues that under the contract, the due date for any money owed by her was the time of entry of the Further Judgment or at the time a Marital Settlement Agreement is signed, or at the time our office ceases to render services to you, whichever event occurs first. Because the due date for Risners payment to F & G was not until final judgment or settlement, she argues, F & Gs withdrawal from her case was a breach of the agreement.

Risner contends that the question of when her payments were due should be determined as a matter of law by this court. She identifies three points during the trial court proceedings when she raised this issue: first, in her summary judgment/adjudication motion; second, as part of a motion in limine; and third, in a motion for nonsuit.^[2]

We address each of these motions separately. For reasons set forth more fully below, we decline to disturb the summary judgment ruling and we conclude that the trial court did not err in denying the motion in limine or the motion for nonsuit.

A. Determination of These Issues on Summary Judgment

On May 18, 2005, Risner filed a motion for summary judgment/summary adjudication in the trial court which addressed the issues of due date under the contract and the purported breach by respondents. In her memorandum of points and authorities filed in support of the motion, Risner argued that, Under the clear language of the Retainer Agreement, all unpaid fees and costs were payable at the time of the Judgment or Marital Settlement Agreement. She further argued that fee agreements should be strictly construed against an attorney, and that [a]s such, the Court can only conclude that at the time of the Motion to Withdraw up to the time of the granting of F & Gs Motion, Risner did not breach any provision of the Retainer Agreement. Risner continued, the Court should determine that F & G breached the Retainer Agreement by the very act of withdrawing as attorney of record when the Retainer Agreement clearly specified that any unpaid fees were not due until the matter was adjudicated. Risners motion was based in part on the courts inherent power to interpret the meaning of the contractual terms.

The trial court denied Risners motion for summary judgment/summary adjudication. At oral argument, the court stated its opinion that the questions of the due date under the contract, and whether F & G breached the agreement, were triable issues of fact for the jury.

Risner sought a writ on the denial of her summary judgment/adjudication motion. The writ was denied by this court on September 2, 2005.

Risner specifies that the summary judgment/adjudication motion is not the subject of the Appeal. Because Risner has specifically declined to address the summary judgment ruling in this appeal, we decline to disturb the trial courts decision on the motion. The trial court found that the question of whether the withdrawal by [F & G] as attorney of record . . . constituted a breach of the written Retainer Agreement between the parties could not be determined as a matter of law. In so ruling, the trial court rejected Risners claim that [u]nder the clear language of the Retainer Agreement, all unpaid fees and costs were payable at the time of the Judgment or Marital Settlement Agreement. As such, the Court can only conclude that at the time of the Motion to Withdraw . . . Risner did not breach any provision of the Retainer Agreement. We accept the trial courts decision that material questions of fact prevented these issues from being determined as a matter of law and properly proceeded beyond the summary judgment stage.^[3]

We further note that even if the summary judgment/adjudication motion were properly before us, we would affirm the trial courts ruling as to the questions of due date under the contract and F & Gs purported breach. F & G specifically disputed Risners contentions, set forth in her separate statement of undisputed facts, that: (1) F & G did not have the right to withdraw based on nonpayment of fees and costs; and (2) that Risner did not breach the agreement by being unable to pay her fees and costs. And, while F & G did not dispute Risners proper recitation of the clause in the agreement stating that [a]ll unpaid fees and costs shall be due and payable at the time of the entry of the Further Judgment or at the time a Marital Settlement Agreement is signed, F & G pointed out in opposition that, It is also an undisputed fact in this case that the retainer agreement itself says that costs are due and payable on demand, and that Risner agreed to pay all costs to [F & G] upon demand. Thus, the questions of when Risners payments to F & G were due under the contract, and whether F & Gs motion to withdraw was therefore improper, were heavily disputed.

The trial court properly received extrinsic evidence regarding the disputed contractual terms (see Morey v. Vanucci (1998) 64 Cal.App.4th 904, 912) and determined that Risner had not carried her burden of showing that there was no triable issue of material fact as to her claims that no money was due under the fee agreement at the time F & G withdrew and that the withdrawal was therefore a breach of that agreement. (Code Civ. Proc., 437c, subd. (c).)

B. Determination of These Issues on Motion in Limine

Prior to trial, Risner filed a motion in limine, raising what she describes as the identical issue as the one that was raised in her summary judgment/adjudication motion.^[4] She explains that she again asked the Court to interpret the contract to indicate that none of [her] attorneys fees were due and payable at the time the Motion to Be Relived as Counsel was filed (or at any other time while the Motion was pending).

At the hearing on the motion in limine, F & Gs counsel objected on the grounds that the motion revisited issues already decided in the summary judgment ruling. While the trial court overruled F & Gs objection, it nevertheless denied the motion on the ground that this is a triable issue for the jury to decide overall. The court explained that it could not rule on the issue of the due date or breach without hearing evidence in the case. The court later added: I dont think this is a proper motion in limine. This is not to restrict or affirm evidence. This is for affirmative relief. For me, this is a triable issue for the trier of fact.

The trial courts ruling on a motion in limine is reviewed for abuse of discretion. (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1493.) Under that standard, we will not overturn the courts ruling unless we find it to be arbitrary, capricious, or patently absurd. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1385.)

We find that no such abuse of discretion occurred. Preliminarily, we agree with the trial courts statement that a motion in limine was not a proper tool to ask the court to interpret the contract and determine breach. Motions in limine are designed to deal with evidence. The usual purpose of motions in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial to the moving party. A typical order in limine excludes the challenged evidence and directs counsel, parties, and witnesses not to refer to the excluded matters during trial. [Citation.] (Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 669-670.) To have the sufficiency of the pleading or the existence of triable issues of material fact decided in the guise of a motion in limine is a perversion of the process. (R & B Auto Center, Inc. v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327, 371 (conc. opn. of Rylaarsdam, J.).)

We further find that the trial courts decision that appellants motion in limine presented issues which should be considered by the jury was not an abuse of its discretion. In ruling on Risners summary judgment/adjudication motion, the trial court had previously evaluated the conflicting extrinsic evidence regarding the due date under the agreement and the question of whether F & G was in breach of the agreement, and determined that these contested issues should be decided by a jury. The law supports a jurys interpretation of contractual terms where the interpretation of those terms turns on an assessment of conflicting evidence extrinsic to the language of the written agreement. (See, e.g., Morey v. Vanucci, supra, 64 Cal.App.4th at p. 914 [where the question of the interpretation of the term affiliated entities turned on an assessment of conflicting evidence extrinsic to the language of the written agreement, the trial court did not err in submitting that question to the jury].) Risner challenged the trial courts ruling on the summary judgment motion by filing a writ with this court, which was rejected. Therefore, the courts determination that these issues were fact questions for the jury was not properly revisited by motion in limine. (Conway v. Bughouse, Inc. (1980) 105 Cal.App.3d 194, 202-203 [Code Civ. Proc. 437c does not permit a trial judge to review issues already determined in summary judgment proceedings].) For these reasons, we decline to disturb the trial courts ruling on Risners motion in limine.

C. Determination of These Issues on Motion for Nonsuit

At the close of F & Gs evidence, Risner made a motion for nonsuit on the ground that she was not in breach of the retainer agreement at the time that F & G withdrew from her divorce case because payment was not yet due under the agreement. F & G again objected that this is taken from [Risners] motion for summary judgment. While the trial court did not directly respond to F & Gs objection, it did state again, I think this would be something that you can argue to the jury panel. Citing the conflicting evidence on the points raised by Risner, as well as the expert testimony presented by F & G, the court denied Risners motion for nonsuit.

A motion for nonsuit allows a defendant to test the sufficiency of the plaintiffs evidence before presenting his or her case. Because a successful nonsuit motion precludes submission of plaintiffs case to the jury, courts grant motions for nonsuit only under very limited circumstances. [Citation.] (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838.) Risner would have been entitled to a nonsuit only if the trial court determined that, as a matter of law, the evidence presented by [F & G was] insufficient to permit a jury to find in [its] favor. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.) In reviewing the trial courts decision on a motion for nonsuit, we are guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff. (Carson v. Facilities Development Co., at p. 839.)

We find that the trial court did not err in denying Risners motion for nonsuit. F & G, who was considered the plaintiff for the purposes of the trial, had presented testimony from Risner, from several members of F & G, including Mr. Freid, and from an expert witness, Judge Stephen Lachs (retired), in support of its position that Risner had failed to pay money owed to F & G at the time that it withdrew from representing her. Indeed, Risner herself had testified that she understood that it was her responsibility to pay fees and costs, that she had received periodic bills from F & G for payments incurred in connection with the dissolution, and that, in the time period before October 2001, she had paid those bills on demand. This evidence was sufficient to suggest that F & G was correct in its claim that Risner breached the fee agreement. The trial court did not err in denying Risners motion for nonsuit and allowing F & Gs case to be evaluated by the jury.

D. The Jury Verdict

F & Gs claim for breach of contract was submitted to the jury pursuant to a special verdict form. Risner does not appeal any issues related to the special verdict form, therefore we do not address it. As part of the special verdict, the jury determined that F & G did substantially all of the things the contract required [it] to do. This finding was a rejection of Risners theory that F & G breached the agreement.

In her opening brief, Risner specifies that she is not making an attempt to try to overcome the usual presumptions on factual issues. Because she does not argue that substantial evidence does not support the verdict, we refrain from analyzing that question.

II. F & G Was Not Precluded From Filing This Action for Attorney Fees

Risners Issue #2 asks Whether an attorney who withdraws from a civil action for reasons that are not valid or compelling under state bar rules may maintain a later action against the client for unpaid fees? For the reasons set forth below, we find that F & G was not precluded from bringing this action against Risner for attorney fees.

First, the jury verdict renders moot any claim on the part of Risner that F & Gs reasons for withdrawal were not valid or compelling. The jury determined that F & G did substantially all of the things the contract required it to do. The jury further determined that, at the time of F & Gs withdrawal, Risner was in breach of the retainer agreement. Under rule 3-700(C)(f) of the Rules of Professional Conduct, an attorney may request permission to withdraw if a client breaches an agreement or obligation to the member as to expenses or fees. Thus, the jury determined that F & Gs reason for withdrawal was valid under the state bar rules. Risner has not challenged that factual finding.

Risner points to a line of cases holding that, in contingency fee cases, attorneys who withdraw are precluded from seeking attorney fees if the withdrawal is not mandatory or premised on ethical considerations. (See Estate of Falco (1987) 188 Cal.App.3d 1004 (Falco) and Rus, Miliband & Smith v. Conkle & Olesten (2003) 113 Cal.App.4th 656, 676 (Rus) (the Falco-Rus doctrine).) Risner argues that these cases should be expanded beyond contingency agreements and applied to fee agreements such as the one at issue here.^[5] Should we decide to expand this line of cases to encompass the fee arrangement between Risner and F & G, Risner argues that F & Gs lawsuit should not be allowed because its reason for withdrawal was permissive, not mandatory, as required under Falco.^[6]

We decline to expand the Falco-Rus doctrine to apply to hourly contracts such as the one at issue. In Rus, supra, 113 Cal.App.4th at page 676, the court explained why the doctrine is particularly applicable in contingency fee cases. The court first made it clear that the contingency attorney agrees to take on, and bear the costs of, the many headaches of litigation. Thus, [i]t is a very tough row which a contingency fee attorney originally agrees to hoe. (Ibid.) The court explained that, To allow an attorney under a contingency fee agreement to withdraw without compulsion and still seek fees from any future recovery is to shift the time, effort, and risk of obtaining the recovery . . . from the attorney, who originally agreed to bear those particular costs in the first place, to the client. (Ibid.) The court noted that to allow an attorney working under a contingency fee agreement to withdraw and then later seek fees would create perverse incentives. The first attorney to represent a client would have reason to do as little as possible and then jump on the hint of first client noncooperation to maximize recovery with a minimum of hassle. (Ibid., at fn. 11.)

These policy considerations do not apply in a situation where, as here, the client has agreed to bear the costs of the litigation on an hourly or on-demand basis. Risner has cited no case law suggesting that the doctrine should be expanded to encompass hourly contracts. In addition, the jury in this case found that Risner had breached her fee agreement with F & G. Such a breach on the part of a client is a valid reason for an attorney to make a motion to withdraw under the professional rules. For these reasons, we decline to expand the Falco-Rus doctrine to encompass the situation before us, and we find that this action for unpaid attorney fees was permissible.

III. Issues Regarding Jury Instructions

Risner next contests several rulings of the trial court regarding jury instructions. First, she contends that the trial court erred in instructing the jury on both the written contract and common counts, specifically account stated, open book account, and quantum meruit. She also contests the trial courts decision to refuse several of her jury instructions on her defense theories. We address these contentions separately below.

A. Standard of Review

In reviewing the trial courts decisions on jury instructions, we are guided by the principle that there is no rule of automatic reversal or inherent prejudice applicable to any category of civil instructional error, whether of commission or omission. A judgment may not be reversed for instructional error in a civil case unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. [Citation.] (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580.)

Thus, in reviewing Risners claims of instructional error, we look not only to determine whether the trial court committed error but whether such error was prejudicial to Risner.

B. Instruction on Both Written Contract and Common Counts

At trial, Risner objected to F & Gs proposed jury instructions relating to the common counts alleged in F & Gs affirmative pleading: account stated, open book account, and quantum meruit. Citing Hedging Concepts, Inc. v. First Alliance Mortgage Co. (1996) 41 Cal.App.4th 1410 (Hedging), Risner reasoned that a party cannot sue on both an express contract and an implied contract, where each contract is alleged to have the same object. She believed that, in response to her objections, the trial court indicated that the contested instructions had been withdrawn. However, the court then proceeded to read the common count instructions to the jury. Risner objected immediately after the instructions were read. In response, the court suggested that Risner may have misunderstood the courts ruling. The court then indicated that Risner could make her argument regarding the common counts in final summation.

Hedging, supra, 41 Cal.App.4th at page 1410 does not preclude the trial courts instructions on common counts in this matter. In Hedging, the trial court had interpreted a business contract between the plaintiff and defendant to require a certain precondition to plaintiffs right to payment under the contract. The trial court further found that such precondition had not been satisfied. Nevertheless, the trial court declared the contract rescinded and awarded a quantum meruit recovery to plaintiff. The Court of Appeal affirmed the trial courts construction of the contract, the finding that plaintiff had not performed, and the finding that defendant had not breached. However, it reversed the award of quantum meruit damages to the plaintiff, reasoning that, When parties have an actual contract covering a subject, a court cannot not even under the guise of equity jurisprudence substitute the courts own concepts of fairness regarding that subject in place of the parties own contract. (Id. at p. 1420, fn. omitted.)

Thus, in Hedging, the trial court made a factual finding that the parties had formed an actual, not an implied, contract. (Hedging, supra, 41 Cal.App.4th at p. 1420.) Here, the trial court had made no such finding, as evidenced by the first question submitted to the jury: Did [F & G] and [Risner] enter into a contract? Thus, at the time that the trial court read the instruction, the question of whether a valid contract between the parties existed was unresolved. F & G was therefore permitted to proceed on its alternate theories of recovery. (See, e.g., Huskinson & Brown, LLP v. Wolf (2004) 32 Cal.4th 453, 462-464 [where fee agreement found to be invalid or unenforceable, attorney may nonetheless recover for reasonable value of the legal services it provided on clients behalf].)^[7]

In addition, we find that even if error occurred, it is highly improbable that the trial courts reading of the common count instructions prejudicially affected the verdict. (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069.) The special verdict form listed five extremely narrow and specific questions pertaining to the parties written contract and any breach thereof by either party. No mention was made of any of the common counts. Indeed, if the jury had answered no to the first question as to whether a contract existed between the parties, the jury form provided no alternate questions allowing the jury to make an award to F & G based on equity. In addition, the jury award itself was for the approximate sum that F & G had sought under the contract, therefore there is no indication that the jury applied any of the instructions regarding the common counts.

C. Refusal of Instructions on Defense Theories

Risner contests the trial courts refusal to give several of her proposed instructions, which she describes as the heart of [her] defense. The refused instructions were: (1) an instruction indicating that the jury was bound by certain trial court interpretations of the contract, including that All unpaid fees and costs by Risner to [F & G] were not due and payable until the time of the entry of the Further Judgment or at the time of a Marital Settlement Agreement is signed, which did not occur in the divorce until May of 2003; (2) an instruction setting forth the test in Falco, supra, 188 Cal.App.3d at page 1004, and indicating that an attorneys lawsuit against a client for fees is barred unless each element of the test is met; (3) an instruction that the fact that a court permitted the Withdrawal [of F & G from Risners divorce case] does not mean that [F & G] should have withdrawn as attorney for [Risner]; and (4) an instruction indicating that the client is not obligated to contest an attorneys attempt to withdraw in order to preserve the right to assert that the withdrawal was a breach of the fee agreement or was unjustified.

Even where an instruction may be correct in the abstract, the trial court is not required to give it where such instruction is not supported by the evidence or is likely to mislead the jury. [Citation.] (Joyce v. Simi Valley Unified School Dist. (2003) 110 Cal.App.4th 292, 303.) In addition, if a proposed instruction conflicts with the special verdict form, or is argumentative or confusing, the trial court is not required to give it. (Ibid.)

As to the first instruction, the trial court had on at least three separate occasions declined to decide the issues of due date under the contract and breach of the contract, leaving those issues for the jury to determine after weighing all of the evidence. (See Section I, infra.) Therefore, the first proposed instruction conflicted with the trial courts prior determination that the jury should decide when money was due under the contract, and the trial court properly declined to read it.

The trial court also properly refused to read the second contested instruction suggesting that the action was barred unless F & G met the test set forth in Falco, supra, 188 Cal.App.3d at page 1004. As set forth in Section II, infra, that test is inapplicable in this matter, therefore a reading of the proposed instruction to the jury would have been insupportable.

The final two instructions contested by appellant involve the propriety of F & Gs withdrawal from Risners divorce case. The questions in the special verdict form did not permit the jury to address the propriety of that withdrawal. Therefore, these proposed instructions conflicted with the special verdict form and may well have diverted the jurors from the real issues before them. (Joyce v. Simi Valley Unified School Dist., supra, 110 Cal.App.4th at p. 303.) In addition, the proposition underlying these proposed instructions that F & Gs withdrawal was unjustified is not supported by the evidence, which suggests that F & G properly withdrew under rule 3-700(C) of the Rules of Professional Conduct on the grounds that Risner breached her fee agreement. An instruction . . . may not be given where it is not supported by the evidence or is likely to mislead the jury. [Citation.] (Joyce v. Simi Valley Unified School Dist., at p. 303.) The trial court did not err in refusing to give these instructions.

IV. Prejudgment Interest

On November 23, 2005, nine days after the special verdict was entered, F & G filed an ex parte application seeking prejudgment interest. Over Risners objection, the court granted the motion and awarded an additional sum of $84,758.64. On December 5, 2005, the trial court entered an amended judgment allowing for this additional award.

Risner argues that the sole method by which a party can recover prejudgment interest on a contract breach is to do so during trial as an element of damages. She further argues that such interest is not a cost and may not be imposed automatically as result of an ex parte motion claiming clerical error, as was done in this case.

F & G counters that its verified cross-complaint for breach of contract, which expressly requested prejudgment interest, protected its right to seek prejudgment interest. F & G further argues that the case law allows a request for prejudgment interest to be made at any time prior to entry of judgment or no later than the time allowed for filing a motion for a new trial. (North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824, 828 (North Oakland).)

As set forth below, we find that Risner is entitled to proper notice and a hearing on the issue of prejudgment interest, therefore we remand for further proceedings on this issue.

F & Gs right to prejudgment interest is set forth in Civil Code section 3287, subdivision (a), which states: Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day.

North Oakland, supra, 65 Cal.App.4th 824 discussed the guidelines for receiving an award of prejudgment interest. In North Oakland, the jury returned a special verdict in favor of plaintiffs on a breach of oral contract claim on September 20, 1995. No interest was included in the special verdict and none was included in the special verdict form. (Id. at p. 827.) Plaintiffs thereafter filed a memorandum of costs, but did not request interest. Defendants moved to tax costs, and that motion was denied following a hearing. On January 3, 1996, plaintiffs presented an order to the court awarding the costs plus prejudgment interest. Upon defendants motion, the trial court set aside the award of prejudgment interest on the grounds that plaintiffs were precluded from recovering interest on the debt because they had failed to previously move for such interest. (Id. at pp. 827-828.)

In discussing the plaintiffs appeal of the trial courts denial of prejudgment interest, the court noted that there is no authority mandating any particular procedure for securing an award of prejudgment interest, but set forth several general principles which apply to such an award. The court noted that [a] general prayer in the complaint is adequate to support an award of prejudgment interest. (North Oakland, supra, 65 Cal.App.4th at p. 829.) However, the court specified that, The issue here is not whether plaintiffs complaint adequately invoked the courts power to award prejudgment interest. . . . Rather, the question we address is whether plaintiffs timely requested the court to exercise its power to determine whether plaintiffs were entitled to interest under [Civil Code] section 3287 in circumstances where damages had been awarded but no interest was included in the verdict and where neither court nor jury had determined whether the damages were liquidated or unliquidated. (Ibid.) The court determined that the answer was no.

The court explained that, It is well established that prejudgment interest is not a cost, but an element of damages. [Citations.] (North Oakland, supra, 65 Cal.App.4th at p. 830, fn. omitted.) Thus, the court concluded that the costs bill is not an appropriate vehicle for requesting interest, but that prejudgment interest should be awarded in the judgment on the basis of a specific request therefore made before entry of judgment. (Ibid.) As support for its decision, the court cited California Rules of Court, rule 875, which states, The clerk shall include in the judgment any interest awarded by the court and the interest accrued since the entry of the verdict.

The North Oaklandcourt concluded, at the latest, a request for prejudgment interest under [Civil Code] section 3287 may be sought as part of a motion for new trial pursuant to Code of Civil Procedure section 657, on the grounds of [e]xcessive or inadequate damages. [Citation.] (North Oakland, supra, 65 Cal.App.4th at p. 830, quoting Code Civ. Proc., 657, subd. 5.) The court concluded, Pending the promulgation of a rule by the Judicial Council, which we think appropriate, requests for prejudgment interest under [Civil Code] section 3287 by a successful plaintiff must be made by way of motion prior to entry of judgment, or the request must be made in the form of a motion for new trial no later than the time allowed for filing such a motion. (North Oakland, at p. 831.)

F & G made no motion for prejudgment interest prior to entry of judgment. While F & G points out that it did request such interest in its cross-complaint, as stated by the North Oakland court, The issue here is not whether plaintiffs complaint adequately invoked the courts power to award prejudgment interest, . . . [r]ather, the question we address is whether plaintiffs timely requested the court to exercise its power to determine whether plaintiffs were entitled to interest under [Civil Code] section 3287. (North Oakland, supra, 65 Cal.App.4th at p. 829.)

F & Gs ex parte application was made well within the time frame for a motion for a new trial. Therefore, we find that F & G timely requested the award of prejudgment interest under the standards set forth in North Oakland. However, the request did not come as part of a motion for new trial pursuant to Code of Civil Procedure section 657, on the grounds of [e]xcessive or inadequate damages. [Citation.] (North Oakland, at p. 830, italics added.) In addition, the trial court granted F & Gs ex parte request to amend the judgment without allowing Risner a full opportunity to be heard on issues such as the method of calculating such interest.

We therefore remand this issue to the trial court with instructions to allow F & G the opportunity to file a properly noticed motion under Code of Civil Procedure section 657 setting forth its request for prejudgment interest. We further direct that Risner should be afforded the opportunity to respond and present evidence at a hearing on the issue.

V. Attorney Fees

Following trial, F & G made a motion for attorney fees and costs. F & G sought $23,002.85 in costs and $127,847.50 in fees as the prevailing party in a trial following arbitration under Business & Professions Code section 6204, subdivision (d).^[8] Alternatively, F & G sought fees and costs pursuant to Code of Civil Procedure sections 998, 1032, 1033.5, and 1021.1 in the amount of $68,055.85.^[9] On February 7, 2006, under the authority of Business & Professions Code section 6204, the trial court awarded F & G the entire amount of costs but awarded only $68,000.00 in fees. Risner appeals from the award of attorney fees, and F & G cross-appealed.

Risner raises three issues, none of which we need address at length. First, she argues that if the judgment is reversed, the award of attorney fees should also be reversed. Because the judgment will not be reversed, this argument is moot. Next, Risner argues that, if the award of fees was based on Code of Civil Procedure section 998, subdivision (d), it was erroneous because she was not the plaintiff and did not seek affirmative relief, as required by that section. Because the trial court specified that the award was issued pursuant to Business & Professions Code section 6204, we need not address this issue. Finally, Risner argues that F & G made no showing as to the time period when its expert, Judge Stephen Lachs (retired), incurred his time charges. Citing Code of Civil Procedure section 998, Risner argues that F & G may only recover expert costs incurred after an offer to compromise under that section is made. Therefore, she argues, the trial courts award of the full $14,200 was erroneous. Again, because the trial courts award of costs and fees was not made pursuant to Code of Civil Procedure section 998, we need not address this argument.^[10]

F & G appeals one issue: the trial courts decision to award less than the full $127,847.50 requested by F & G under Business & Professions Code section 6204, subdivision (d). While F & G acknowledges that the abuse of discretion standard of review governs our review of the trial courts award of attorney fees, (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095-1096), they argue that the trial court failed to adhere to applicable legal criteria specifically, the principle that fee awards should be fully compensatory. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133.) In reducing the amount of attorney fees requested, F & G argues, the trial court acted arbitrarily and therefore abused its discretion.

An award of attorney fees is within the sound discretion of the trial court, and absent a manifest abuse of discretion we will not interfere with its decision. (White v. Dorfman (1981) 116 Cal.App.3d 892, 900.) We find no such manifest abuse here. We note that the language of Business & Professions Code section 6204, subdivision (d) is entirely discretionary:

The prevailing party may, in the discretion of the court, be entitled to an allowance for reasonable attorneys fees and costs incurred in the trial after arbitration, which allowance shall be fixed by the court. In fixing the attorneys fees, the court shall consider the award and determinations of the arbitrators, in addition to any other relevant evidence.

Nothing in the language of the code section requires the trial court to make the award much less mandates that any such award be fully compensatory. In contrast, the trial court has the discretion to make the award and set the award as it sees fit. The value of legal services performed in a case is a matter in which the trial court has its own expertise. (White v. Dorfman, supra, 116 Cal.App.3d at p. 900.) F & G has not provided sufficient justification for disturbing the trial courts attorney fee award in this case.^[11]

DISPOSITION

The judgment is affirmed with the exception of the portion of the amended judgment allowing for prejudgment interest, which is reversed and remanded for further proceedings. The trial court is ordered to allow F & G the opportunity to file a noticed motion on the issue of prejudgment interest and grant Risner the opportunity for a full hearing on the issue. The award of attorney fees and costs under Business & Professions Code section 6204, subdivision (d), is affirmed. Each party shall bear its own costs of appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

________________________, J.

CHAVEZ

We concur:

_______________________, Acting P. J.

DOI TODD

_______________________, J.

ASHMANN-GERST

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^[1] The minute order entered on February 7, 2006, reflects that costs in the amount of $20,002.85 were awarded. However, the final order signed by the court and entered on March 14, 2006, awarded costs in the amount of $23,002.85. The reason for the $3,000 difference is not clear.

^[2] Risner also raised the issue in connection with a jury instruction, which is discussed in section III.C. of this opinion.

^[3] By footnote, Risner cites Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830 for the proposition that the denial of a summary judgment motion is harmless error. The case is inapplicable. In Waller, the Court of Appeal affirmed a jury verdict in the plaintiffs favor despite determining that the trial courts denial of a summary judgment motion filed by the defendant was erroneous, on the grounds that such error was harmless. Here, in contrast, the Court of Appeal denied Risners challenge to the trial courts denial of summary judgment. She has specified that the summary judgment/adjudication ruling is not the subject of this appeal, therefore we will not revisit the issues decided by that motion. (Katelaris v. County of Orange (2001) 92 Cal.App.4th 1211, 1216, fn. 4 [issue not addressed in appellants opening brief is waived].)

^[4] Risners motion in limine was captioned: Motion in Limine to Determine Breach of Contract on the Part of Freid & Goldsman on Whether or Not Any Unpaid Fees and Costs Were Due and Payable at the Time of the Motion to Withdraw.

^[5] We note that this issue was also raised before the trial court as part of Risners summary judgment/adjudication motion. The trial court found Falco and Rus to be inapposite because they involve contingency fee agreements. As set forth above, Risner does not contest this ruling because she has specified that the summary judgment/adjudication motion is not the subject of the Appeal. However, Risner raised these cases again in seeking a jury instruction based on language taken from Falco. The record of the trial court proceedings concerning the jury instructions shows that the trial court again addressed this case law without objection that it was precluded from doing so by the ruling on summary judgment/adjudication. Because Risner indicates that she is appealing from the ruling connected with the jury instruction, we will address the merits of this legal argument.