McGrew v. Union Bank of California
Filed 4/8/08 McGrew v. Union Bank of California CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
J. BENJAMIN MCGREW, as Receiver, etc.,
UNION BANK OF CALIFORNIA, N.A. et al.,
(Super. Ct. No. 04AS00966)
J. Benjamin McGrew (Receiver) was appointed as receiver in an action brought by Union Bank of California, N.A. (Bank) against Anchor Group (Anchor), Steven Ames and Linda Ames (the Ames) on a defaulted loan owed by Anchor to Bank. Receiver appeals from the order on his final account and report that awarded him a total of $94,226 in fees for his services during the receivership and awarded his attorney fees in a total amount of $191,539. Receiver contends the trial court abused its discretion in failing to award him his requested $120,297.30 in receiver fees and $339,349.86 in attorney fees. Finding no abuse of discretion, we shall affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Anchor is a job shop manufacturer of screen-printed garments. Starting in 2001, Anchor borrowed money from Bank secured by its inventory, equipment and accounts receivable. The Amess executed continuing guarantees of payment of the Anchor loans. Within a relatively short time, Anchor experienced a perfect storm of ultimately questionable business decisions, negative market forces and the prohibition of selling branded products to non-licensors. In March 2004, Bank sued Anchor and the Amess alleging various defaults on the loans and seeking a recovery of over $2Â million. Bank sought the appointment of a receiver over the operations of Anchor because of Anchors rapid consumption of the Banks collateral. Bank felt the only hope for Anchor was to sell off its branded inventory over the objection of the brand holders (Gap, Inc. (Gap) and Tommy Hilfiger (Hilfiger)) at a price consistent with Anchors opinion of the value.
Receiver was appointed in April 2004 with authority, among other things, to operate and conduct Anchors business, to sell Anchors business assets as he deemed appropriate, and to use best efforts to liquidate Anchors excess inventory. The order of appointment required Receiver to develop and implement a plan, including a budget, to generate monies sufficient to discharge the loans to Bank. The order also required Receiver to provide Bank and Anchor with monthly reports of inventory, sales, contracts for delivery of any items comprising business assets, receipt of cash and accounts receivable, and expenditures.
At the end of April 2004, Receiver sought leave of the trial court to employ the law firm of Best, Best & Krieger (BBK) as his legal counsel by a stipulated ex parte application. Receiver alleged he required the aid of legal counsel to advise and represent Receiver in respect to a contemplated sale of certain excess inventory (the Excess Inventory) of [Anchor] that previously was produced under one or more contracts with Gap .Â .Â . and .Â .Â . Hilfiger (or related parties). Thus, the professional services which Receiver requires of counsel include legal advice, assistance, and representation concerning the disposition of the Excess Inventory and the Receivers duties and powers in this case. The application stated ex parte relief was appropriate because the Excess Inventory issues must be resolved immediately. The application listed one partner and one associate of BBK as the attorneys most likely to perform services for this matter at an hourly rate of $250 and $200 respectively. The application represented BBK understood payment for legal services, costs, and disbursements would occur only upon approval by the court. Receiver obtained an order on May 4, 2004 allowing him to employ counsel for the purpose of advising and representing him with respect to the sale of excess inventory produced for Gap and Hilfiger.
First Interim Motion For Fees
Receiver filed a first interim motion for fees in November 2004. Receiver sought $43,000 in receiver fees and approximately $66,000in attorney fees for services between April 2004 and the middle of November 2004 (7 1/2 months). Receivers services included meeting with the Amess, reviewing Anchors business records, conducting an inventory of assets, and selling some merchandise. In June 2004, Receiver determined it was unlikely Anchor could recover from its substantial cash flow deficit. Receiver shut down Anchors business operation and began taking steps to arrange for liquidation of Anchors assets. In August 2004, Anchor filed Chapter 11 bankruptcy proceedings. The bankruptcy court excused Receiver from turning over Anchors assets to it and allowed Receiver to continue to operate Anchors estate. Receiver investigated and negotiated possible sales of brand-marked inventory. BBK assisted Receiver with his efforts in selling the brand-marked inventory and represented Receiver in the bankruptcy proceedings.
In early December 2004, the trial court entered an interim fee order, pursuant to written stipulation of Bank, Anchor and Receiver, authorizing payment of $20,000 to Receiver and $35,000 to BBK. The interim fee order reserved all rights and objections by Bank and Anchor regarding the balance of the claimed fees and expenses.
Second Interim Motion For Fees
In March 2005 Receiver filed a second interim motion for fees covering the period from the middle of November 2004 through the end of January 2005 (2 1/2 months). Receiver sought $18,000 as the balance owing on his services from the first interim period (consistent with his billing statements, but inconsistent with his original request for $43,000 minus the $20,000 stipulated payment), plus $20,000 for his services during the second interim period. Receiver sought payment of $31,000 for the balance of BBKs fees owed from the first interim period and $65,000 for legal services incurred during the second interim period.
During the second interim period, receivers services included primarily attending three hearings in the bankruptcy court, responding to notices from various agencies and/or utilities regarding termination of services at Anchors Sacramento facility, reviewing updates of accounts receivable, continuing negotiations and efforts to sell inventory, conducting an auction of major lots of inventory and overseeing shipment of the inventory sold. BBKs services included primarily advice and negotiations regarding the sale of Gap and Hilfiger inventory, with a stipulation for sales being worked out with Gap and a settlement eventually being worked out with Hilfiger, representation of Receiver in the bankruptcy court, representation of Receiver in negotiations over payments of rent and other necessary expenses, and assistance at the inventory auction. Receiver claimed he had obtained over $1.2 million in tangible benefit for the receivership estate as a result of the services.
A review of BBKs billing statements for the first and second interim periods reflects one attorney partner and one or two attorney associates were working for the receivership during the four months of April, May, June, and July of 2004. In August, an administrative assistant was added. In September, two partners, two associates, and one administrative assistant worked for the receivership. In October, the services of three partners, two associates and one administrative assistant were billed. In November, three partners, two associates and two administrative assistants billed their time to the receivership. Throughout December 2004 and January 2005, three partners, one attorney of counsel, three associates, and one paralegal worked for the receivership.
Receivers second interim motion for fees was opposed by both Anchor and Bank. Anchors opposition asserted a number of grounds for objection, including that the motion failed to reflect there was a pending offer for the remaining assets of the receivership estate that could result in a relatively quick close-out of the receivership, that BBKs services exceeded the scope of services authorized, and that BBKs billing statements reflected duplicative efforts of attorneys. Bank argued Receiver should be limited to the percentage allowed a Chapter 11 trustee under the federal bankruptcy law, an amount substantially less than the requested fees, but which would bear a reasonable relationship to the results obtained. Bank also took the position the requested fees were excessive, duplicative, and improperly block billed. Bank noted Receiver had not developed a plan, including a budget, for generating the money necessary to satisfy Banks loans, and had provided no monthly reports as required by the order appointing the Receiver.
BBK, in Receivers reply, offered to reduce its total claim for fees for both interim periods from $131,000 to $125,000.
The trial court granted Receivers second interim fee motion, but specifically awarded the $125,000 as compromised in the reply papers.
Third Interim Motion For Fees
In October 2005 Receiver filed a third interim motion for fees covering the period from the beginning of February 2005 through the end of September 2005 (8 months). The third interim motion sought $36,000 in fees for Receiver and almost $91,000 in fees for BBK.
During the third interim period, Receivers services included primarily negotiating agreements for the sale of excess inventory, working through disputes regarding contract payment terms, defective merchandise claims, the lease for the Sacramento facility, the removal of inventory from the facility, and the sale of Anchors equipment at the facility. BBK assisted Receiver in dealing with the remaining inventory, equipment and accounts receivable, including related disputes. BBK conferred with Bank regarding Anchors equipment located at a facility in Mexico. BBK appeared for Receiver in bankruptcy court hearings and at Receivers deposition noticed by the Amess. BBK also advised Receiver regarding a claim submitted by Fabriknit, a vendor which claimed to have sold fabric to the receivership estate. BBK represented Receiver in an adversary proceeding filed against Receiver in the bankruptcy court by a company called Dos Rios Investments, Inc. (Dos Rios), a purchaser of some of the excess inventory. At various times three partners, one attorney of counsel, three associates and up to three paralegals worked on these matters.
Receiver gave various figures for the tangible benefit to the receivership estate produced by his efforts. In his motion, he claimed his efforts produced just over $1 million in benefits (down from his claim of $1.2 million in his second interim motion). In his supporting declaration, however, Receiver asserted his efforts had resulted in $1.35 million in benefits. Receiver later filed an amendment to his declaration based on a computation error to assert $1.29 million of benefit to the estate from his efforts.
Bank opposed Receivers third interim motion for fees. Bank complained Receiver had not met his obligations to provide Bank timely information, monthly reports, and a budget and plan to handle the liquidation of Anchors assets, despite Banks numerous requests. Bank was surprised to learn of debt and expenses incurred by Receiver. Bank was also upset by delays in Receivers handling of assets to the detriment of the receivership estate. For example, the bankruptcy court authorized Receiver to liquidate accounts receivable in October 2004, but Receiver did not hire a collection agency until May 2005. The bankruptcy court authorized liquidation of equipment in March 2005, but Receiver did not hire an auctioneer until June 2005. The equipment auction eventually held did not include the equipment located in Mexico and no efforts had been made to deal with that equipment. Bank claimed the requested fees were excessive. Bank renewed its objections to the first and second interim motions for fees.
In late January 2006, Bank entered a settlement agreement with Anchor and the Amess to resolve their respective claims and disputes. The agreement provided, among other things, for Bank to receive a $500,000 payment from the proceeds of the receivership, dismissal of the trial court action and the conclusion of the receivership.
In early February 2006, the trial court granted Receivers third motion in part, awarding $18,000 in receiver fees and just over $45,000 in legal fees (half the amounts requested). The trial court ordered Receiver to file his final report no later than March 15, 2006. Receiver filed his final account and report and petition for allowance of fees on March 17, 2006.
Final Account And Claim For Fees
Fees Paid and Claims For Compensation:
Receiver reported he had been paid $76,000 in fees. He requested payment of an additional $43,000, which included the remaining balance from his third interim motion and new fees for services during the period of October 2005 through March 2006. Receiver reported BBK had been paid $177,000 in fees. Receiver requested a further $117,000 in legal fees for BBK, which apparently included the remaining balance from the third interim motion and new fees for October through March.
BBKs Claim For Compensation:
According to BBKs claim for compensation, the services rendered produced over $1.3 million in tangible benefit for the receivership estate. BBKs claim for compensation reflected a variety of legal services performed for the receivership. A number of the tasks performed related to the Dos Rios bankruptcy adversary proceeding and the Fabriknit claim. BBK also provided advice to the collections agency, responded to Banks motion in the bankruptcy court to replace Receiver with a bankruptcy trustee, conferred with the Bank, Anchor and Receiver regarding potential forfeiture of Anchors interest in the equipment in Mexico, and drafted and reviewed points and authorities, summaries, and reports to be filed with the trial court. The services of two partners, four associates and three paralegals were used.
Receivers Final Account:
Receivers final account reported final assets of the estate in the total amount of just under $1.3 million, with a cash balance of just under $922,000 on hand. The final account noted a number of specific payables and contingent liabilities remaining. The summary of expenses for the receivership included a number of itemized expenses ranging in amounts from approximately $5,000 for insurance to $286,000 for professional services. The summary also listed $914,010 as simply other expenses.
The Opposition to Receivers And BBKS Claims
Receivers final account and claim for compensation was opposed by the Bank, Anchor, and Dos Rios. In support of its opposition, Bank submitted a declaration of John Phillips, a certified public accountant retained by it to review the report, accounts and records of the receivership. Phillips detailed numerous difficulties with the manner in which Anchor and Receiver kept their books, often lacking ledgers and supporting documentation. Phillips concluded that [s]ince the Receiver did not prepare interim and final accountings in generally acceptable accounting formats that are auditable, interested parties of the Receivership or myself can not have any level of comfort that of [sic] all of the receipts and disbursements were properly collected, disbursed, and accounted for. One example of not having a comfort level and cause for great concern is the $914,010 that is categorized as other expenses. This amount represents approximately fifty percent of the total disbursements of the Receivership and the only explanation is an account called other expenses. No other documents or schedules where this amount can be audited and confirmed have been provided.
Receivers Response to the Opposition and Supplement to the Final Account
Receiver submitted several declarations addressing the issues raised by the opposition. Receiver offered to reduce the claim for paralegal time and duplicative partner attorney hours by $2,450 and to delete certain expense claims in the amount of $486.
The trial court denied Receivers request to present oral evidence at the hearing on his final account and report.
With the hearing on his final account still pending, Receiver filed a supplement to his final account updating and correcting his statement of charges and credits and requesting allowance of additional receiver fees in the amount of $9,000. Receiver noted two corrections to earlier billing statements amounting to a reduction in fees of nearly $8,000. Receiver asked for a total final award of just over $49,000 for his services.
Receiver also filed a supplement to his claim for compensation to BBK. Receiver requested an additional $33,000 for the legal services provided by BBK during the period of March through May 2006, plus $10,000 for anticipated future legal services, and $2,000 in costs advanced by BBK, for a total additional claim of $45,000. The services of BBK during the supplemental period included reviewing Receivers final account and report, advising the collection agency regarding accounts receivable, responding to matters arising in the Dos Rios litigation and Fabriknit claim, drafting replies to the opposition to Receivers final account and report, drafting the request to present oral testimony, and preparing for the hearings on the final account and for approval of the settlement agreement. BBK also requested payment for drafting opposition to Anchors motion for approval of a global settlement of the claims between the Bank, Anchor, Dos Rios, and Fabriknit.
Bank and Anchor both filed opposition to Receivers supplemental claims.
Trial Court Rulings
Hearings on Receivers final account and report and Anchors motion for approval of the settlement agreement were scheduled before the trial court on the same day. The trial court issued a tentative ruling approving the settlement agreement, with the exception of one paragraph, which was stricken. The tentative ruling found no merit to any of the objections to the agreement raised by Receiver.
As to Receivers report, the trial court issued a tentative ruling dissolving the receivership and discharging Receiver. The ruling awarded Receiver only $18,000 of his requested fees, i.e., the second half of the amount he requested in his third interim motion. The tentative ruling denied BBK any further fees. The trial court provided lengthy explanations of the basis for its rulings. The matters were argued and taken under submission.
In its final rulings on the submitted matters, the trial court affirmed its tentative decision to approve the settlement agreement of the parties, strongly criticizing Receiver for his position of opposition, and affirmed its tentative decision regarding Receivers final account with a modification to allow BBK additional fees in the amount of $14,455 for work related to specifically identified matters.
In its ruling on the issue of requested receiver fees, the trial court expressed dismay and disappointment in how Receiver managed the receivership estate. It found Receiver had failed to comply with the requirement to develop a plan, including a budget, to generate funds. It noted Receiver had operated Anchor as an on-going business, but then in June 2004 he had abruptly announced his intention to liquidate the business. The trial court stated there was no evidence that Receiver made his decisions pursuant to a thoughtfully considered plan after weighing the reasons for and against either course of action. The trial court found Receiver had provided no monthly reports as required until specifically ordered by the court 18 months later. When the belated reports were reviewed by Banks accountant, there was still no detailed general ledger and Receiver still appeared unable to account for over $914,000 in disbursements. The trial court found Receivers supplement to his final accounting did not provide any further explanation and, given the lack of explanation, the court concluded Receiver failed to act responsibly toward the receivership estate, the court, Anchor and its creditors. The court found Receiver did properly engage in activities related to the liquidation of inventory and equipment, but after vacating the premises in July 2005, Receiver had accomplished little other than collection on accounts receivable and becoming embroiled in one or another dispute. It was particularly difficult to ascertain whether the Receiver acted reasonably with respect to the various disputesÂ . .Â .Â . The trial court awarded Receiver $18,000 in recognition of the work performed by Receiver in generating funds by selling inventory and equipment.
On the issue of requested fees for BBK, the trial court found the situation even more egregious. The record before the Court establishes that the Receiver obtained an order on May 4, 2004[,] allowing him to employ counsel for the purpose of advising and representing him with respect to the sale of excess inventory produced for GAP and Tommy Hilfiger. According to the Anchor Groups analysis, counsel has billed 509.8 hours for work unrelated to the disposition of GAP and Hilfiger merchandise. The Courts own review of counsels billings leads to the conclusion that the receivership estate has been treated as an unrestricted cash cow. The trial court cited examples of inappropriate billings and criticized the summaries provided by counsel as being unhelpful and remarkable in how little information they actually impart. The trial court found it impossible to ascertain the amount of fees charged for the work done on any given day and referenced numerous other deficiencies as identified in the opposition filed by Anchor. The court acknowledged there had been novel issues of law given the overlap of bankruptcy and state receivership and that the bankruptcy had been litigious. Nevertheless, it does not appear that proper controls were in place, and as a result, substantial legal fees were incurred with no accountability whatsoever.
The trial court further explained in its final ruling that [t]he stipulated agreement allowing Receiver to employ counsel was based on Receivers representation that assistance of counsel was needed with respect to the disposition of excess inventory. .Â .Â . [T]he services rendered by counsel have, unfortunately, strayed well beyond those originally contemplated. In view of the limited scope of counsels role that had been approved by the Court and [the] parties to this action, as well as the billing defects .Â .Â . , the Court initially concluded that the $177,000 in attorney fees previously awarded was reasonable compensation for those legal services that were appropriately performed on behalf of the receivership estate[.] However, upon revisiting the billings for the work performed since October 2005, the Court decided to award $8,405 for BBKs work related to the Dos Rios adversary proceeding, $4,050 for work related to Fabriknits motion to compel payment, $750 for appearances at bankruptcy court hearings, $750 for work on Receivers final report, and $500 for further briefing requested by the trial court on the settlement agreement, for a total of $14,455 of additional fees.
The Appeal Is Not Moot
Respondent Bank claims the appeal by Receiver is moot because the funds of the receivership have been disbursed pursuant to the settlement agreement between the Bank, Anchor, the Amess, Dos Rios and Fabriknit. Not so. In its order approving the settlement agreement, the trial court specifically noted that [t]o the extent that additional fees are awarded to Receiver .Â .Â . , payment of such fees shall have priority over the remaining payments listed in the settlement agreement. Thus, the distribution remains subject to any additional fees awarded Receiver. And as Receiver points out, if Receiver cannot be compensated from the funds of the receivership, liability for his compensation can be imposed on the parties to the action, or upon some of them. (Andrade v. Andrade (1932) 216 Cal. 108, 110; McCarthy v. Poulsen (1985) 173 Cal.App.3d 1212, 1219, fn. 3.)
Although we do not find the appeal moot, we do reject it on its merits.
The Trial Court Did Not Abuse Its Discretion In Awarding Fees
Code of Civil Procedure section 564 provides general grounds for the appointment of receivers by a trial court. Rule 3.1179 of the California Rules of Court(former rule 1903) provides the receiver, so appointed, is the agent of the court, is neutral, acts for the benefit of all who may have an interest in the receivership property, and holds the receivership assets for the court, not the parties. (Rule 3.1179(a); People v. Stark (2005) 131 Cal.App.4th 184, 204; Gold v. Gold (2003) 114 Cal.App.4th 791, 806.) Rule 3.1183 (former rule 1907) specifically provides a receivers [I]interim fees are subject to final review and approval by the court. The court retains jurisdiction to award a greater or lesser amount as the full, fair, and final value of the services received. (Rule 3.1183(a).) If allowance of compensation for the receiver or the receivers attorney is claimed in the receivers final account and report, the final account and report must provide the details of such service for the trial courts review. (Rule 3.1184(d) [former rule 1908].)
The amount of fees awarded to a receiver is in the sound discretion of the trial court and in the absence of a clear showing of an abuse of discretion, a reviewing court is not justified in setting aside an order fixing fees. (Melikian v. Aquila (1998) 63 Cal.App.4th 1364, 1368, quoting People v. Riverside University (1973) 35 Cal.App.3d 572, 587.) The same is true for an award of fees for the services of an attorney employed by the receiver. (Venza v. Venza (1951) 101 Cal.App.2d 678, 680.) Under the abuse of discretion standard of review, we will only reverse upon a showing of a clear abuse of discretion and a miscarriage of justice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331; Eisenberg, Horvitz, & Weiner, Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) 8:86, p.Â 8-35.)
Judicial discretion implies absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. Â To exercise the power of judicial discretion all the material facts in evidence must be both known and considered, together also with the legal principles essential to an informed, intelligent and just decision. (In re Cortez (1971) 6 Cal.3d 78, 85-86, quoting People v. Surplice (1962) 203 Cal.App.2d 784, 791, fn. omitted; accord Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 393; City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297-1298.) A trial court abuses its discretion in awarding fees when its award shocks the conscience or is not supported by the evidence. (Jones v. Union Bank of California(2005) 127 Cal.App.4th 542, 549-550.)
It is the appellants burden to show an abuse of discretion. (Blank v. Kirwan, supra, 39 Cal.3d at p. 331.) This is not an easy burden.
We have carefully reviewed the record and the trial courts decision and conclude Receiver has failed to show any abuse of discretion by the trial court in refusing to award all of the fees he requested for his and BBKs services during the receivership.
Receiver admits the findings that he failed to develop a formal plan of operation, create a budget for the estate, or submit monthly operating reports to the parties are supported by the record. However, he challenges the trial courts implicit finding that these admitted failures diminished the value of his services to the estate in the final and supplementary period. Receiver misapprehends the trial courts findings. The trial court was not focused on the value of Receivers services just in the final and supplementary periods. Rather, the court focused on the value of Receivers services over the entire course of the receivership. Pursuant to rule 3.1183, the trial court was authorized to review all interim fees awarded in its consideration of Receivers final account and report. The trial court found the total requested fees to be unduly excessive and unwarranted in light of the Receivers overall management of the estate, including Receivers failure to comply with the requirements of his appointing order. The trial court, in essence, capped the fees at the amounts claimed for the first three interim periods.
The record supports the trial courts ruling as there was significant evidence that the Receivers failure to develop a plan, including a budget, and failure to make monthly reports of income and expenses to the parties did materially hamper the parties abilities to monitor the nature, quantity, and timing of the work performed by Receiver and BBK. The absence of regular reports alone created a myriad of problems. With regular reports, the Bank and Anchor would have known about the resources being expended on the efforts to realize revenue from the inventory and equipment sales, as well as the accounts receivable collections. With regular reports the parties, in all probability, would have been alerted to the escalating legal bills and could have timely asked BBK for an explanation of why a steadily increasing number of attorneys, paralegals and administrative assistants were being utilized. With regular reports, the parties could have made timely objections to the apparent delays in the hiring of a collection agency, and an equipment auctioneer and made a timely inquiry into the status of the Mexico facility.
Receiver claims his success in recovering a net $1.34 million for the estate far outweighed the reporting deficiencies found by the trial court. Receiver points to a comment by a bankruptcy court judge in June 2005 complimenting his performance. We will not speculate into the basis for the bankruptcy judges remarks, nor will we engage in a reweighing of alleged benefits obtained against evident reporting deficiencies. The trial court was in a better position to know the necessity for the services performed by the receiver and his attorney and to assess their reasonable value than is this court. (Kan v. Tsang (1949) 90 Cal.App.2d 538, 541.) Here, the trial court acknowledged novel issues of law had been involved and that the bankruptcy had been litigious, but still found fees were incurred with no accountability because of the lack of proper documentation and controls. The trial court did not abuse its discretion in so concluding.
Receiver next takes issue with the trial courts finding that the Receivers decision to liquidate Anchor was not thoughtfully considered. Receiver asserts he hired and conferred with an independent consultant in June 2004 about the viability of Anchors business. The record actually shows the referenced consultant submitted his report to Receiver in August 2004, several months after Receiver declared he decided to shut down Anchors business and liquidate. Reviewing Receiver and BBKs billing statements for June 2004, we have found no reference to any contact with the consultant in June of 2004. Thus, Receiver has not shown any error in the trial courts finding.
Similarly, the record clearly supports the trial courts concern and comments regarding the $914,000 listed by Receiver in his account simply as other expenses. The trial court had before it the declaration of Phillips, the Banks accountant, specifically expressing great concern with the categorization of $914,010 as other expenses. Phillips noted [t]his amount represents approximately fifty percent of the total disbursements of the Receivership and the only explanation is an account called other expenses. No other documents or schedules where this amount can be audited and confirmed have been provided.
Receiver complains the trial court unfairly suggested that Receiver instigated needless controversies when it found he had accomplished little after July 2005 apart from collecting receivables and becoming embroiled in unspecified disputes. Receiver points out he was sued by Dos Rios in the adversary proceeding and that he did not bring, but defended against Fabriknits claim. The trial court clearly recognized Receivers point when it expressly awarded him fees for work related to the Dos Rios adversary proceeding and the Fabriknit claim.
Receiver contends the services of BBK were well within the scope of those contemplated by the authorizing order and that the trial courts finding that BBK had strayed well beyond the services originally contemplated is not supported by the record. As we have already noted, the record does not contain the order authorizing BBKs employment as counsel for Receiver. In this situation, we presume the trial courts statement of the order is correct. (GHK Associates v. Mayer Group, Inc. (1990) 224 Cal.App.3d 856, 872 [[a]ll presumptions not contradicted by the record on appeal are indulged to support the judgment, and the appellant has the burden to affirmatively show, based on the record, the trial courts commission of reversible error].) But even if we assume, as seems likely, that the proposed order submitted by Receiver with its ex parte application for employment of BBK was the order signed by the court, we would not disagree with the trial courts view of its scope. The application for employment of counsel was based on Receivers representation of his immediate need for legal advice in selling brand-marked inventory as quickly as possible. The entire context of the application was Receivers efforts to liquidate inventory. Receiver points to language in the application stating the professional services which Receiver requires [of counsel] include [l]egal advice, assistance and representation concerning the disposition of the Excess Inventory and the Receivers duties and powers in this case. (Italics added by Receiver.) It is reasonable to view the duties and powers being referenced are those connected to the sale of inventory and related matters.
Receiver complains, however, that the trial court did not so narrowly view and limit the scope of BBKs employment when it was ruling on his earlier interim motions for fees. His complaint has no merit. The trial court was not bound by its previous awards when it came time to review the value of all the services provided in the context of Receivers final account and report. (Rule 3.1183(a) [court retains jurisdiction to award a greater or lesser amount as the full, fair, and final value of the services rendered].) It would also appear the majority of the work performed by BBK in the earlier interim motions either directly dealt with inventory issues or indirectly affected the Receivers ability to liquidate Anchors inventory. For example, the services related to continued occupancy of the Sacramento facility preserved the premises for storage of the inventory. In contrast, the services of Receiver and BBK during the later periods of time focused on collections of accounts receivable, a matter for which a consultant was specially employed, liquidation of equipment, including finally the equipment in Mexico, responding to the Banks effort to replace Receiver with a bankruptcy trustee, and opposing the parties global settlement, opposition that the trial court criticized as inappropriate to the Receivers duty. The trial court was free to take into account the complete picture of services rendered at the time of the hearing on Receivers final account and report.
Receiver disputes the trial courts characterization of BBKs billing statements as containing insufficient information to assist the court in determining the propriety of the services performed and the amount of fees incurred. Receiver contends all required information was contained in its billing statements and that the complaints of Anchor, adopted by the trial court, were unwarranted. We are not persuaded by these arguments and conclude no abuse of discretion occurred.
Although the billing statements submitted to the trial court do contain dates, a total amount of time billed, the name of the person performing the work, a very brief block description of the work performed, and a means by which the dollar amount of fees could be calculated, the trial court was well justified in questioning whether there was sufficient information to determine the accuracy of the billings. The record of these proceedings reflects a number of corrections and reductions of legal fees when the billings of BBK were challenged. For example, Anchor argued in opposition to Receivers second interim motion seeking fees for the balance of the first period and the second period that BBKs billing statements reflected duplicative efforts of attorneys. Bank argued in opposition that BBKs use of multiple attorneys on certain identified matters was excessive and that time for certain telephone calls exceeded its own counsels billing records. In light of the complaints, Receiver offered to compromise BBKs fees from $131,000 to $125,000. Later, Receiver offered to reduce the claim for paralegal time and duplicative partner attorney hours by $2,450 and to further reduce fees for phone bills double-billed by BBK and to delete a $65 messenger fee for delivery to counsel located in the same building. Such multiple corrections reasonably raise suspicion regarding the care with which all of the billing statements were prepared.
We cannot say the trial court abused its discretion in criticizing the billing statements or that a different fee award is required because we might reach a different conclusion as to the sufficiency of the statements. A [s]howing on appeal is wholly insufficient if it presents a state of facts, a consideration of which, for the purpose of judicial action, merely affords an opportunity for a difference of opinion. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. To be entitled to relief on appeal from the result of an alleged abuse of discretion it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justiceÂ . .Â .Â . (Estate of Gilkison (1998)65 Cal.App.4th 1443, 1449, quoting Brown v. Newby (1940) 39 Cal.App.2d 615, 618.)
Finally, Receiver complains the fees awarded for the legal services provided by BBK were not reasonable compensation commensurate with the benefit the estate received from those services. In considering an award of fees to a receiver and/or the receivers legal counsel, we agree the trial courts should consider the nature of the services provided, the difficulty involved, the skill required, the amount of time devoted, and the success obtained, but the court is not required to blindly award every hour of time reflected on billing statements. In evaluating the full, fair, and final value of the services rendered by a receiver (rule 3.1183), the trial court has a special obligation to keep in mind the receivers responsibility as a fiduciary and officer of the court to perform his or her authorized duties with the utmost integrity, care, timeliness, and efficacy. (See Shannon v. Superior Court (1990) 217 Cal.App.3d 986, 993 [receiver may even be surcharged for failure to properly carry out his/her duties].) The ruling on Receivers final account and report reflects the trial courts careful consideration of the services provided by Receiver and BBK and it amply states the trial courts reasons for not awarding the full amounts requested based on various failures of the Receiver and counsel.
As Receiver has failed to demonstrate any abuse of discretion by the trial court in its award of fees to Receiver and BBK, we shall affirm the order on Receivers final account and report.
The order on final account and report of receiver is affirmed. Costs on appeal are awarded to respondent Union Bank of California, N.A. and respondent Anchor Group. (Cal. Rules of Court, rule 8.278(a)(1).)
CANTIL-SAKAUYE , J.
NICHOLSON , Acting P.J.
RAYE , J.
The record on appeal does not include the order authorizing the appointment of BBK. Therefore, we cannot determine from the record whether the court signed the proposed order submitted as part of the stipulated application or another order. The parties and the trial court agree an order was entered on MayÂ 4, 2004. The trial court stated the purpose of the order in its ruling on Receivers final account and report.
We will round off the figures we use in this opinion for convenience and to aid understanding.
The record on appeal does not contain Receivers first interim motion for fees, the oppositions of Bank and Anchor, or the order authorizing payment. We summarize the motion and order based on the characterization of it in Receivers second interim motion for fees. A chronological billing itemization of Receivers and BBKs services and fees for the first interim period is attached to the declarations of Receiver and William Robinson, a partner with BBK, filed in connection with Receivers second interim motion for fees. We note Receivers billings reflect a balance of $38,000 in fees owing as of November 12, 2004, not the $43,000 purportedly requested by the first interim motion. The requested $66,000 of attorney fees covered BBKs services only through the end of October 2004.
In his reply to Banks opposition to his second interim motion for fees, Receiver asked for $83,253.67as the second interim payment for his services. We have no idea where this figure comes from.
BBKs billed services for the second interim period actually ran from the beginning of November 2004 to the end of January 2005.
Receiver erroneously represents in his opening brief that the trial court awarded all of the compensation requested by Receiver for his services and those of BBK in the first and second interim periods. In fact, Receiver was awarded a reduced amount for his remaining fees from the first interim period in his second motion based on Receivers apparent recognition of the discrepancy between his first request and his billing statements and BBK was awarded approximately $6,000 less than originally requested based on its offer of compromise.
The trial court awarded fees to be paid to BBK in an amount of just over $170,000. We are puzzled why Receiver paid BBK almost $7,000 more than awarded. Apparently Receiver chose to pay BBK the fees requested in the first and second interim motions, instead of the compromised amount ordered.
Receiver stated the 17 hours billed on November 9, 2004 (during the second interim motion period) should really have been for 23 minutes, 21 seconds, and the 24 hours billed on March 31, 2005 (during the third interim motion period) should have been for 19 minutes, 6 seconds.
Receiver asked for almost $43,000 in his final account. He asked for an additional $9,000 by the supplement to his final account, which would add up to a total claim of $52,000. Receiver offered to reduce his claim for the billing corrections by almost $8,000. This would lead to a final claim of $44,000. We have not been able to discern how Receiver reached his final claim of $49,000. Adding to our confusion, Receivers billing statements actually reflect a balance due of just over $50,000, a figure not mentioned elsewhere.
Further undesignated rule references are to the California Rules of Court.
At oral argument, respondents agreed the order authorizing Receiver to employ BBK as counsel contemplated BBK providing legal services beyond those relating to the sale of inventory. We believe the trial court was in the best position to know what services it authorized in the order and find its description of its authorization to be reasonable, as we have explained. If, however, the scope of authorized services was as broad as Receiver claims, and as now respondents concede, we conclude BBK must also share responsibility for Receivers failures in duties to the estate. Receiver cannot have it both ways. Either the authorization was narrow and BBKs responsibilities were correspondingly narrow, or the authorization was broad and so were BBKs responsibilities.