Kalfin v. Kalfin
Filed 11/6/13 Kalfin v. Kalfin CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
DEBRA R. KALFIN,
Plaintiff and
Respondent,
v.
JUDITH A. KALFIN,
Defendant and
Appellant.
G046639
(Super. Ct.
No. 30-2010-00422625)
ORDER
MODIFYING OPINION;
NO CHANGE
IN JUDGMENT
It is ordered that the
opinion filed on October 15, 2013,
be modified as follows:
On page 30, add the
following:
“V
“Debra requests her reasonable
appellate attorney fees and costs under Welfare and Institutions Code
section 15657.5, subdivision (a).
As we noted in the concurrently filed companion appeal
15, 2013, G047275) [nonpub. opn.], as prevailing party Debra is entitled
to an award of costs and attorney fees incurred on appeal, which includes the
costs and fees incurred in defending the judgment and the attorney fees award,
in an amount to be determined by the trial court. (Evans
v. Unkow (1995) 38 Cal.App.4th 1490, 1499 [‘statute authorizing an
attorney fee award at the trial court level includes appellate attorney fees
unless the statute specifically provides otherwise’]; Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372,
1388 [party who successfully defends an award of attorney fees is entitled to
appellate attorney fees as well].)â€
On page 30, modify the
final sentence of the disposition to read, “Respondent is awarded her costs and
attorney fees on appeal.â€
This modification does
not change the judgment.
O’LEARY,
P. J.
WE CONCUR:
FYBEL, J.
THOMPSON, J.
Filed 10/15/13 (unmodified version)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
DEBRA R. KALFIN,
Plaintiff and
Respondent,
v.
JUDITH A. KALFIN,
Defendant and
Appellant.
G047275
(Super. Ct.
No. 30-2010-00422625)
O P I N I O
N
Appeal from a
postjudgment order of the Superior Court
of Orange County,
H. Michael Brenner, Judge. (Retired
judge of the Orange Super. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed as modified.
Freeman Firm, Thomas H.
Keeling, Franklin J. Brummett; Law Offices of Scott E. Schutzman and Scott E.
Schutzman for Defendant and Appellant.
Lamb & Kawakami,
Patrick L Rendon; Adams & Nelson and Keith A. Robinson for Plaintiff and
Respondent.
Judith A. Kalfin appeals
from the postjudgment order awarding attorney fees to her sister, Debra R.
Kalfin.
her claim for financial abuse of a dependent adult, which entitled her to
attorney fees. (Welf. & Inst. Code,
§§ 15610.30, 15657.5, subd. (a).)
On appeal, Judith does not challenge Debra’s statutory entitlement to
attorney fees, but argues the order must be reversed because: (1) the award is excessive and the court
applied improper criteria; (2) amounts awarded based on work by one group
of Debra’s attorneys should have been stricken because there was an illegal
fee-splitting agreement between Debra’s attorneys; and (3) the contingent
fee agreement between Debra and her attorneys was unconscionable. We reject her contentions, modify the award
to delete minor amounts Debra concedes should not have been awarded, and affirm
the order as modified.
FACTS & PROCEDURE
The facts concerning the
underlying dispute are fully addressed in our concurrently filed opinion in
opn.] (Kalfin 1). We adopt and incorporate by reference the
facts and analysis from our opinion in Kalfin
1 and will not repeat them here. In
that opinion, we affirmed the judgment awarding Debra approximately $1.4
million in compensatory damages and $260,000 in punitive damages against Judith
on causes of action for breach of oral contract and financial abuse in
violation of Welfare and Institutions Code section 15610.30.
Debra filed a motion for
her attorney fees pursuant to Welfare and Institutions Code
section 15657.5, subdivision (a), which provides a plaintiff who prevails
on a claim for financial abuse under Welfare and Institutions Code
section 15610.30, “shall [be] award[ed her] reasonable attorney’s fees . . . .†Her motion was accompanied by a declaration
from her lead attorney, Patrick L. Rendon, who detailed the claimed “lodestarâ€
amount, i.e., the hours reasonably spent on the litigation multiplied by a
reasonable hourly rate.
Rendon’s declaration
explained Debra agreed to hourly rates of $600 for partners, $450 for associate
attorneys, and $250 for paralegals. He
stated, “Pursuant to the terms of the engagement with [Debra, she] agreed that
we are entitled to [50] percent of the gross amount recovered plus costs.†Rendon declared because they recognized
attorney fees were potentially recoverable, “we agreed to accept the [court’s]
award of attorneys’ fees . . . in lieu of the amount due by
applying the [50 percent] contingency but only if the . . . award . . . exceeds
the amount due by applying the [50 percent] contingency.†Rendon explained Debra’s ability to pay any
attorney fees otherwise was doubtful in view of her disability and lack of any
source of income beyond her $1,200 a month in combined social security and
disability insurance payments.
Rendon detailed the
experience of the attorneys and paralegals who worked on the litigation. Some of the attorneys and paralegals were
employed by Rendon’s firm, Lamb & Kawakami, but others including attorney
Keith A. Robinson were employed by Robinson’s firm, Adams & Nelson.
Rendon’s declaration
attached a 24-page invoice from Lamb & Kawakami submitted to Debra shortly
before her attorney fees motion was filed detailing the time spent and charges
of each attorney and paralegal who worked on the matter. The invoice also detailed litigation costs
advanced by Rendon’s firm totaling $82,251.88.
In sum, Rendon himself spent 1,027.75 hours on the litigation at $600 an
hour; Robinson spent 199.05 hours at $600 an hour; five other attorneys from
the two law firms collectively spent 267.3 hours at rates ranging from $450 to
$600 an hour; and four paralegals from the two law firms spent 117.25 hours at
$250 an hour. A total of 1,611.35 hours
were claimed for a total lodestar amount of $893,465. Rendon urged the court to apply a multiplier
of four to the lodestar amount because of the complexity of the litigation.
Judith opposed the
attorney fees motion, arguing the amounts claimed were excessive, although the
only item specifically identified in her opposition was a charge of 14.75 hours
of Rendon’s time for trial of the partition action, in which Debra did not
prevail. Judith asserted the 50 percent
contingency fee agreement was unconscionable and not enforceable because not
only was 50 percent too much, but the retainer agreement described by Rendon
permitted him to keep 50 percent of the jury verdict plus whatever attorney fees award the court made.
Judith also argued Debra
should not be allowed to recover fees for work performed by attorneys employed
by Robinson’s law firm. She argued the
arrangement constituted fee-splitting, which was illegal pursuant to Rules of
Professional Conduct, rule 2-200 (rule 2-200) unless specifically consented to
in writing by the client.
Judith’s opposition
included a declaration from her attorney, Scott E. Schutzman, stating that in
his opinion, a 50 percent contingency fee was unconscionable, and Rendon and
the other attorneys had an illegal fee-splitting arrangement. Schutzman declared that based on “a quick
review†of the invoice the hours claimed by attorney Rendon were excessive and
inflated, but he gave only three examples:
7.5 hours billed January 14, 2011, for reviewing a tentative ruling
and attending a hearing, 12 hours billed for preparing for and attending
Marjorie Solomon’s deposition on February 7, 2011, and the 14.75 hours billed
for attending trial in the partition action.
Schutzman declared his total bills to Judith for her defense in this
matter were “well under $200,000†and that was the maximum that should be
awarded.
In her reply, Debra
conceded the 14.75 hours for trial in the partition action should be omitted
from her request. Rendon submitted an
additional declaration providing more detail regarding his billings, including
the two items Judith specifically raised in her opposition (i.e., the 7.5- and
12-hour charges).
Debra submitted her own
declaration concerning the tremendous difficulty she had finding an attorney to
take her case. She contacted eight or
nine other attorneys (most found through bar association referrals and a few
referred by friends). Most would not
return her calls, but those who did were not interested in taking the case or
wanted large retainers, which she could not afford. Rendon was the only attorney she found who
would take her case on a contingency basis and who would advance costs. Debra declared, “Rendon informed me of the
fact that . . . Robinson and the other attorneys at
[Robinson’s firm] would be working on this case[.] I approved of this in writing and continue to
approve of this.â€
At the hearing on the
attorney fees motion, Rendon represented to the court his retainer agreement
with Debra did not permit him to keep the 50 percent contingent fee
suggested by Judith. The retainer
agreement was that if the attorney fees award exceeded 50 percent of the jury’s
verdict, Rendon got the attorney fees award and waived the contingent fee. If the award was less than 50 percent of the
jury’s verdict, he got the 50 percent contingent fee, and Debra got to keep the
attorney fees that were awarded. “We
don’t get both. And I want to be very
clear about that. . . . We get one or the other, but we don’t
get both.â€
On June 12, 2012, the
trial court granted Debra’s attorney fees motion awarding her a total of
$700,000 in attorney fees. The court
found the attorneys’ hourly billing rates were “a little high,†and set
Rendon’s billing rate at $500 an hour and Robinson’s at $400. It awarded the fees as follows: $520,000 for Rendon’s services; $80,000 for
Robinson’s services; and $100,000 for the services of all other attorneys and
paralegals. The court declined to
utilize a multiplier. The court stated
it did not find the 50 percent contingent fee agreement unconscionable under
the circumstances of the case.
DISCUSSION
1.
Reasonableness of Attorney Fees
As the prevailing
plaintiff in a financial abuse case Debra was statutorily entitled to recover
her reasonable attorney fees. (Welf.
& Inst. Code, § 15657.5, subd. (a).) Judith does not contest Debra’s entitlement
to her attorney fees, but contends the attorney fees awarded were excessive and
the trial court relied on improper criteria in fashioning the award. We reject her contentions.
An attorney fees award
is reviewed for abuse of discretion. (
Berkeley (1986) 181 Cal.App.3d 213, 233.)
Abuse of discretion will be found only when it is shown there was no
reasonable basis for the trial court’s action.
(Ibid.) “‘[T]he appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of reason.’ [Citation.]â€
(Dove Audio, Inc. v. Rosenfeld,
Meyer & Susman (1996) 47 Cal.App.4th 777, 785.) “‘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 wrong’—meaning that it
abused its discretion.†(
22 Cal.4th 1084, 1095.)
The trial court is not
required to issue a statement of decision addressing disputed legal and factual
issues when ruling on a motion for attorney fees. (Rebney
v. Wells Fargo Bank (1991) 232 Cal.App.3d 1344, 1348-1349.) “No specific findings reflecting the court’s
calculations [are] required.
[Citation.] ‘The record need only
show that the attorney fees were awarded according to the “lodestar†or
“touchstone†approach.’ [Citation.] On appeal we infer all findings in favor of
the prevailing parties. [Citation.]†(Wershba
v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 254.)
“[T]he lodestar method
requires the trial court to first determine a touchstone or lodestar figure
based on a careful compilation of the time spent and reasonable hourly
compensation for each attorney.
[Citations.] The trial court may
then augment or diminish the touchstone figure by taking various relevant factors
into account. [Citations.]†(Vo v.
Las Virgenes Municipal Water Dist. (2000)
79 Cal.App.4th
440, 445-446; see Serrano v. Priest
(1977) 20 Cal.3d 25, 48.)
The record reflects the
trial court engaged in the appropriate lodestar method in fashioning the
attorney fees award. Debra’s motion was
accompanied by a declaration from attorney Rendon and invoices detailing the
number of hours expended by each attorney and paralegal who worked on this
case, the experience of each, and the billing rate of each. The moving papers demonstrated 1,611.35 hours
were spent at hourly rates ranging from $250 for paralegals to $600 for
partners, for a total lodestar amount of $893,465. The trial court believed the hourly billing
rates of the attorneys were too high and reduced the hourly compensation of
Debra’s primary attorneys, Rendon and Robinson, to $500 and $400 respectively,
and concluded reasonable attorney fees for their time was $520,000 and
$80,000. It found a reasonable fee for
the services of all other attorneys and paralegals who worked on the litigation
was $100,000.
title="">[2]
Judith contends the
attorney fees award must be reversed because the trial court did not “carefully
review†the time Debra’s attorneys spent on the case, as evidence by its
comment when ruling that “[t]hese fee bills are always somewhat difficult for
the [c]ourt because there’s no way to really examine the amount of time
spent.†Judith gloms on to this comment
characterizing it as an admission by the trial court that it never looked at or
assessed the reasonableness of the claimed hours and instead just picked a
figure out of thin air that was only “slightly less than Debra’s request†and
then worked backward to justify the number by whittling down the billing rate
to achieve its desired result. There is
nothing in the record that support’s Judith’s contention the court did not
carefully examine the moving papers and the claimed hours spent on the
case. The court’s remark was nothing
more than a comment on the difficulty of the task before it. Its final award of $700,000, represented a
significant 22 percent reduction from the claimed fees. Judith also makes much of the fact the amount
the court awarded attributable to Rendon’s work, $520,000, was based on its
finding $500 an hour was a reasonable billing fee, which means the court
compensated Rendon for 1,040 hours, when his times sheets claimed only
1,027.75, hours. We cannot say this
minor discrepancy of 12.25 hours demonstrates the trial court misunderstood or
abdicated its responsibilities.
name="_ftnref3" title="">[3]
Judith also contends the
trial judge ignored duplicative billings, billings with “vague description[s],â€
and billings done in quarter hour increments.
Not only does Judith not provide adequate citations to the record for
her claims, citing non-existent pages in the clerk’s transcript, but none of
these items were challenged below. “In
challenging attorney fees as excessive because too many hours of work are
claimed, it is the burden of the challenging party to point to the specific
items challenged, with a sufficient argument and citations to the
evidence. General arguments that fees
claimed are excessive, duplicative, or unrelated do not suffice. Failure to raise specific challenges in the
trial court forfeits the claim on appeal.â€
(Premier Medical Management
Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th
550, 564.) Moreover, we cannot say the
trial court abused its discretion by finding the total hours claimed by all
attorneys were reasonable. We are very
familiar with the underlying litigation.
The original complaint was filed in November 2010. It was aggressively litigated by Judith and
Debra. Judith filed several pre-trial
motions, including motions to compel arbitration and for summary judgment. Debra had to file several motions to compel
discovery from Judith. The matter went
to a jury trial lasting 10 days, followed by posttrial motions filed by Judith
including a motion for judgment notwithstanding the verdict and a motion for
new trial. Judith has not shown the
trial court abused its discretion in determining the amount of reasonable
attorney fees.
Finally, Judith argues
the trial court improperly utilized the attorney fees award as a way to
“further compensate Debra.†She argues
that rather than simply decide what constituted Debra’s reasonable attorney
fees, the court used the attorney fees award to get more money back to Debra
from the 50 percent contingency fee she had to pay her attorneys so as to
increase her ultimate recovery. She
cites comments the court made while trying to clarifying with Rendon how the
contingent fee agreement worked. The
following colloquy took place:
“The Court:
So whatever I -- so what you're saying is you’re in for 50 percent
of the verdict. I can decide how much of
it I want Judy to have to pay Debby.
“Mr. Rendon: Yes.
“The Court: That’s it, essentially.
“Mr. Rendon: Yes
“The Court: But I mean, even that’s kind of odd. Because I might want to say, well, I've got a
feeling for what the attorney[] fees are worth, but I don’t know, poor Debby, I
can in a sense award her more money by -
“Mr. Rendon: Well, I think -
“The Court: -- Giving -- I can shift it. Maybe what I’ll do is I’ll just shift some
more from Judy to Debby, up the attorney[] fee[s] award. [¶] Do
you see what I’m saying?
“Mr. Rendon: I hear what you’re saying, your honor. I just think you -- I mean, I agree, it’s an
unpleasant position to be in.â€
Citing
363, 373, in which the court observed “a losing
party’s financial condition should not be considered in the setting the amount
of [an award of contractual attorney fees]†(italics added), Judith argues it
was improper for the court to take into consideration its sympathy for Debra in
fashioning the attorney fees award. The
only proper consideration was what constituted reasonable attorney fees.
Judith reads too much
into the court’s comments. In their
context, it is apparent the court was commenting on counsel’s argument, not
stating its plan for how it would calculate the fees. Judith has not carried her burden to show the
attorney fees the court ultimately awarded to Debra—an almost 20 percent
reduction in the fees she sought—were not reasonable.
Fee-Splitting
Judith argues an illegal
fee-splitting agreement existed between Debra’s primary attorney, Rendon, and
his law firm, Lamb & Kawakami, and attorney Robinson and his law firm,
Adams & Nelson. Therefore, Judith
argues Debra is not entitled to recover attorney fees attributable to work done
by Robinson or other Adams & Nelson attorneys and those fees should be
stricken from Debra’s attorney fees award.
Judith relies on rule
2-200, which provides, in relevant part:
“A member shall not divide a fee for legal services with a lawyer who is
not a partner of, associate of, or shareholder with the member unless: [¶] (1)
The client has consented in writing thereto after a full disclosure has
been made in writing that a division of fees will be made and the terms of such
division . . . .â€
Judith asserts “[t]here is not the slightest indication that [Debra]
ever gave such [written] approval[,]†although Debra declared she approved
attorneys from his law firm working on her case.
We need not decide
whether rule 2-200 has been violated, as Judith has no standing to invoke
it. As this court explained in
219, 225 (Mark), “fee-splitting
agreements create a potential conflict of interest between the client and the attorneys†(italics added) and
rule 2-200 exists to protect the
client from potential conflicts arising from undisclosed fee-splitting
arrangements. (See also
166 Cal.App.4th 1398, 1404 [rule 2-200 adopted for protection of client,
who is consumer of attorney’s legal expertise, “The consumer protection comes
from the attorney’s written disclosure and the client’s written
consentâ€].) To that end courts have
routinely held the attorney may not
enforce a fee-splitting agreement obtained without the client’s consent against
the other attorney. Indeed, all the cases cited by Judith in her
brief involve such efforts. (
142, 162 [attorney could not enforce fee-splitting agreement with co-counsel];
v. Ringler (2012) 212 Cal.App.4th 172 [same]; Mark, supra, 166 Cal.App.4th 219 [same]; Margolin v. Shemaria (2000) 85 Cal.App.4th 891 [same].) Rule 2-200 is a disciplinary rule to protect
the client from a conflict of interest between her attorneys. Judith offers no basis on which as Debra’s
losing opponent in litigation, she may raise a potential conflict between Debra
and her attorneys to prevent Debra from recovering her attorney fees. (See Gregori
v. Bank of America (1989) 207 Cal.App.3d 291, 303 [a disciplinary
rule “‘does not imply that an antagonist in a collateral proceeding or
transaction has standing to seek enforcement of the rule.’
[Citations.]â€].)
Contingent Fee Agreement
Judith contends the 50
percent contingent fee agreement between Debra and her attorneys is
unconscionable and violates rule 4-200(A) of the California Rules of
Professional Conduct, which provides, “A member [of the bar] shall not enter
into an agreement for, charge, or collect an illegal or unconscionable
fee.†Accordingly, she argues, the
contingent fee agreement cannot stand and Debra is not entitled to an award of
attorney fees based on the fee agreement.
We reject Judith’s
argument for the same reason as above—Judith has no standing to challenge the
retainer agreement between Debra and her attorneys. The professional rule prohibiting an
unconscionable fee is for the protection of the
client and not to protect the client’s opponent in litigation from an
attorney fees award. Moreover, the fee
award made in this case was not based on the contingent fee agreement. The trial court assessed attorney fees based
on the reasonable hours spent in this litigation and a reasonable hourly
rate. We also note, Judith’s argument is
based on a mischaracterization of what we have in the record concerning the
contingent fee agreement. The actual
retainer agreement is not before us. In
his declaration, Rendon explained the agreement provided “we agreed to accept
the [court’s] award of attorneys’ fees . . . in lieu of the
amount due by applying the [50 percent] contingency but only if
the . . . award . . . exceeds the
amount due by applying the [50 percent] contingency.†Judith argues this means if the court awarded
attorney fees in an amount less than 50 percent of the jury verdict,
Debra’s attorneys could collect the contingent amount plus keep any attorney fees awarded by the trial court. But at the hearing on the attorney fees
motion, Rendon was emphatic, “[W]e get one or the other, but we don’t get
both.â€
4.
Attorney Fees on Appeal
Debra requests her
reasonable attorney fees and costs on appeal.
As prevailing party she is entitled to an award of costs and attorney
fees incurred on appeal, which includes the costs and fees incurred in
defending the judgment and the attorney fees award, in an amount to be
determined by the trial court. (
38 Cal.App.4th 1490, 1499 [“statute authorizing an attorney fee award at
the trial court level includes appellate attorney fees unless the statute
specifically provides otherwiseâ€]; Sebago,
Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1388 [party who
successfully defends an award of attorney fees is entitled to appellate
attorney fees as well].)
DISPOSITION
The postjudgment order
awarding attorney fees is modified to reduce the attorney fees award to
$686,500, and as modified the order is affirmed. Respondent is awarded her costs and attorney
fees on appeal.
O’LEARY,
P. J.
WE CONCUR:
FYBEL, J.
THOMPSON, J.
convenience and clarity, we will refer to the family members by their first
names, with no disrespect intended.
name="_ftn2" title="">[2] In
passing Judith asserts the court’s failure to specify the hourly rate for each
of these attorneys and paralegals requires reversal. The argument is devoid of any reasoned legal
analysis or citation to authorities.
Accordingly, we consider the point waived. (See Badie
v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [when appellant
raises issue “but fails to support it with reasoned argument and citations to
authority, we treat the point as waivedâ€]; see also Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979
[same].)
