Amin v. Ghordani

Filed 5/3/07 Amin v. Ghordani 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 an order of the Superior Court of Los Angeles County. Susan Bryant-Deason, Judge. Affirmed.

Law Offices of Rodney T. Lewin, Rodney T. Lewin and R. Stephen Duke for Plaintiffs and Appellants.

Law Office of Joseph R. Brown and Joseph R. Brown for Defendants and Respondents.

Joseph and Sharona Amin (appellants) appeal an order, entered after confirmation of an arbitration award, directing them to pay Khalilolah and Susan Ghorbani (respondents) $40,000 in attorney fees. We affirm the order.

CONTENTIONS

Appellants challenge the attorney fee award on two grounds. They first contend that the trial court should not have made the attorney fee award at all because the arbitrator, not the trial court, was the trier of fact for the underlying dispute. They also argue that the award itself was an abuse of discretion because the billing practices of respondents counsel were improper and unethical, and respondents failed to meet their burden of proof that the fees they sought were reasonably and properly incurred.

BACKGROUND

Prior to September 2000, appellants and respondents jointly owned several business ventures, including two limousine service companies. In September 2000, appellants and respondents entered into an agreement by which appellants sold to respondents their interest in these assets. Thereafter, a dispute arose between the parties over the performance of the agreement.

This litigation commenced when appellants filed a complaint against respondents on April 9, 2004. In June 2004, respondents filed a cross-complaint. In April 2005, the parties agreed to submit the matter to arbitration. The stipulation to submit to arbitration provided, in part: A Request for Trial De Novo may accept the Award for Damages but not the Award for Attorney Fees, in which case, the Court shall determine the amount of Attorney Fees upon a Noticed Motion for Attorney Fees.

On April 29, 2005, the arbitrator issued an award in favor of respondents. The arbitrator awarded respondents $32,327 in actual damages, $2,941 in interest, $6,361 in costs and $30,000 in attorney fees. On May 5, 2005, respondents petitioned the trial court to confirm the award as to damages and costs. The petition was granted on June 1, 2005.

On May 2, 2005, appellants filed a request for trial de novo on the issue of attorney fees and costs. On the same date, respondents filed a request for trial de novo on the issue of attorney fees only.

On June 10, 2005, respondents filed their motion for attorney fees and memorandum of points and authorities in support thereof. The motion requested that appellants reimburse respondents for $66,250 in attorney fees. On June 24, 2005, appellants filed their memorandum of points and authorities in opposition to respondents motion. Appellants also filed evidentiary objections to portions of the declaration of Mohamad Talaie, respondents attorney, filed in support of respondents motion for attorney fees. Respondents filed a reply on June 29, 2005.

On July 7, 2005, a hearing was held on respondents motion for attorney fees. The court disallowed $26, 250 of the requested fees and awarded respondents attorney fees in the amount of $40,000. The courts order awarding such fees was signed on August 10, 2005. On August 31, 2005, appellants filed a notice of appeal.

DISCUSSION

I. Propriety of the Trial Judge as Adjudicator of Attorney Fees

Appellants contend that they have presented a legal issue as to whether the arbitrator or the trial court should have made the determination of legal fees. They argue that the arbitrator, not the trial court, was familiar with the evidence in the case and was in the best position to analyze the nature and extent of the legal services performed by respondents counsel and the reasonableness of those fees. Appellants contend that this is an issue of law and therefore de novo review is necessary.

Prior to the commencement of arbitration, appellants stipulated that subsequent to arbitration a request for trial de novo on the issue of attorney fees may be made. After the arbitrator announced his award, appellants, as well as respondents, requested a trial de novo on the issue of attorney fees. The trial de novo went forward without any objection by appellants as to the propriety of the trial judge as the officiator of that proceeding.

Given the facts described above, we find that appellants have waived their argument that the trial judge was not the proper party to determine the attorney fee award. (See In re Horton (1991) 54 Cal.3d 82, 98 [appellants conduct in participating fully in trial, and at every point treating commissioner as competent to rule, was a tacit recognition of the authority of the commissioner and constituted waiver of objection].)

II. The Trial Court Did Not Abuse Its Discretion

The amount to be awarded in attorney fees is committed to the sound discretion of the trial court. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096.) An attorney fee award may be disturbed on appeal only where there has been a manifest abuse of discretion, such as where the amount of the award is so large or so small that it shocks the conscience and suggests that passion and prejudice influenced the decision. (Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1507.) We review appellants claims with these principles in mind.

Appellants argue that respondents failed to meet their burden of proof that the fees were reasonably and necessarily incurred. This burden of proof requires the party seeking fees to show by competent evidence the nature and value of the services rendered. (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.) The record in this case reveals that respondents attorney met this requirement. He submitted a detailed set of billing statements, accompanied by his declaration, which described in detail the case and the nature of the services rendered on behalf of the client. He also attested to the accuracy of his billing records.

Appellants further argue that respondents billing statements were fabricated, inaccurate and improper. In reviewing the amount of an attorney fee award for abuse of discretion, we may not reweigh the evidence. (Weber v. Langholz (1995) 39 Cal.App.4th 1578, 1587.) Any determination as to the credibility of the evidence supporting the fee motion, as well as the weight to be given that evidence, was within the domain of the trial court.

We note, however, that the trial court did not award respondents the full $66,250 that they requested. During the hearing, the trial court stated that respondents attorney had engaged in some block billing, which the court frowned on. The trial court also pointed out some enormously excessive telephone conversations. However, in response to appellants arguments that respondents counsels bills were unreasonable, the trial court noted that the litigation was quite heated and everyone made it more difficult than it had to be. Based on these considerations, the trial court discounted $26,250 of respondents requested fees and set the award at $40,000.

It appears that the trial court carefully considered all of the evidence. We find no abuse of discretion in its decision.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, J.

CHAVEZ

We concur:

____________________, P. J.

BOREN

____________________, J.

DOI TODD

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