Law Offices of Marvin L. Mathis v. Lotta
Filed 1/10/14 Law Offices of
Marvin L. Mathis v. Lotta CA2/8
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
LAW OFFICES OF
MARVIN L. MATHIS,
Appellant,
v.
MICHAEL A.
LOTTA,
Respondent.
B248251
(Los
Angeles County
Super. Ct. No. TC026559)
APPEAL from the order of the
Marvin L. Mathis for Appellant.
Michael A. Lotta, in pro. per., for Respondent.
* * * * * * * * * *
This is a dispute
over the apportionment of attorney
fees between the former and subsequent attorneys for the plaintiffs in the
underlying superior court action
titled Tommy Carter et al. v. JVS
Transportation et al., case No. TC026559.
Appellant Law Offices of Marvin L. Mathis filed a wrongful death
action on May 23,
2012, on behalf of three siblings (one
minor and two adults) whose mother had been killed in an automobile accident a
week earlier. In October 2012, the
plaintiffs discharged appellant and substituted respondent Michael A. Lotta as
their new counsel.
name="_ftnref1" title="">[1] About a week later, defense
counsel indicated at the case management conference that the case could be settled
for the policy limits.
The case was thereafter settled on behalf of all three plaintiffs,
with $500,000 the agreed-upon amount for the minor plaintiff. Some five months later, on March 21, 2013, the court held a hearing on a petition to approve the compromise
of the minor plaintiff’s claim. At the
hearing, the court requested appellant and respondent to submit additional
briefing on the issue of the proper apportionment of fees between them, and
took the matter under submission.
Appellant submitted a declaration, a copy of the retainer agreement, a
document referencing work performed on the case, and copies of receipts reflecting
costs he had advanced on the case. Respondent
also submitted a brief.
On April 12, 2013, the court issued its order apportioning attorney fees from the
minor plaintiff’s settlement as follows:
$115,000 to respondent and $10,000 to appellant. The court also allowed recoverable costs in
the amount of $334.95.
Appellant then filed this appeal challenging the court’s
apportionment of fees, arguing he performed the majority of the work to
accomplish the settlement and therefore was entitled to a majority percentage
of the recoverable fee. The order is an
appealable order, despite respondent’s suggestion, without authority, to the
contrary. (See Breckler v. Thaler (1978) 87 Cal.App.3d 189, 193-194 [order
apportioning fees between cocounsel in a personal injury action was appealable
as a final order after judgment, and attorneys were parties to the record with
respect to the collateral fee order]; see also Code Civ. Proc., § 904.1,
subd. (a)(2).)
We begin with the well-established foundational premise that “ ‘[a]
judgment or order of the lower court is presumed
correct. All intendments and
presumptions are indulged to support it on matters as to which the record is
silent, and error must be affirmatively
shown. This is not only a general
principle of appellate practice but an ingredient of the
error.’ [Citations.]†(Denham
v. Superior Court of Los Angeles County (1970) 2 Cal.3d 557, 564, second
italics added; accord, Moreno v. City of
King (2005) 127 Cal.App.4th 17, 30 [where appellant brought up inadequate
record, appellate court presumed trial court had been presented with “a sound
basis†for implied finding that appellant had not incurred certain costs and
affirmed trial court’s denial of same].)
And, unless otherwise shown, “it is presumed that the court followed the
law.†(Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554,
563.)
Moreover, it is the appellant’s duty to present an adequate record from
which reversible error is affirmatively shown. (Ballard
v. Uribe (1986) 41 Cal.3d 564, 574-575; 9 Witkin, Cal. Procedure (5th ed.
2008) Appeal, § 628, p. 704; see also Cal. Rules of Court, rule
8.120.)
Here, appellant argues entitlement to a new hearing on the
apportionment of attorney fees recovered from the minor plaintiff’s
limited clerk’s transcript and no reporter’s transcript as the entirety of the record
on appeal. The petition for approval of
the minor’s compromise was not designated or included in the record. Only the court’s final order approving the
petition was included in the clerk’s transcript.
The record reflects the guardian ad litem for the minor plaintiff
and the adult plaintiffs appeared, and apparently testified, at the March 21, 2013 hearing on the petition, at which the issue of attorney fees was
discussed and which ended with the trial court requesting further briefing from
appellant and respondent as to the apportionment of fees. At oral argument, appellant represented that
no reporter was requested to record the hearing and therefore no transcript of
the proceedings exists.
Appellant’s request for attorney fees, both in the trial court and
on appeal, is based exclusively on his brief, and his conclusory declaration
and document titled “Legal Services Performed by Law Offices of Marvin L.
Mathis.†That document purports to
itemize appellant’s work, but includes numerous entries such as “08/23/2012 Response to Tracy Goldberg by Atty. Mathis.†There is nothing explaining what this means
in terms of work performed or how long it took.
There is nothing in appellant’s declaration or paperwork which provides
a fair estimate of hours worked, a reasonable hourly fee or the customary fee
earned by appellant, or anything supporting a reasonable basis for awarding
appellant additional fees. At oral
argument, appellant conceded he did not provide the trial court with any
estimate of the reasonable hours worked in representing the plaintiffs,
contending the court did not specifically request it.
The court’s order apportioning fees is reviewed for abuse of
discretion, and appellant argues primarily that the court abused its discretion
because the mere lack of detailed time records itemizing work is not fatal to
an award of reasonable fees based on the attorney’s testimony. It is true that fee awards do not always require
the presentation of detailed time records; an attorney’s fair estimation of
hours worked based on personal knowledge and then multiplied by a reasonable
hourly rate may properly support a fee award.
(See Mardirossian & Associates
v. Ersoff (2007) 153 Cal.App.4th 257, 269-270.)
However, appellant concedes he did not provide the court with
anything equating with a fair approximation of hours worked or a reasonable
rate of pay. Instead, the court was
presented with appellant’s bald assertion that he performed the bulk of the
work resulting in the settlement achieved and that the retainer agreement
entitled him to the lion’s share of the fees earned. The trial court was also presented with a
petition prepared by respondent as to his request for fees relative to the work
he performed after substituting into the case.
And, the court had the court records and testimony from the plaintiffs
and guardian ad litem which undermined the validity of appellant’s retainer
with the plaintiffs, as well as the propriety of the previous guardian ad litem
for the minor plaintiff who was apparently an acquaintance of appellant’s. The record shows appellant filed a timely
complaint on behalf of plaintiffs and appears to have exchanged some
correspondence with defense counsel over a period of a few months. The court asked for additional briefing from
the lawyers and did not receive anything more substantial from appellant to
justify an award of a significant portion of the recoverable fees. Appellant offers no explanation how the trial
court was to calculate a reasonable quantum meruit recovery of fees (which
appellant contends he was entitled to even if the retainer was invalid) in the
absence of a fair estimation of hours worked.
“The discretion of a trial judge is not a whimsical, uncontrolled
power, but a legal discretion, which is subject to the limitations of legal
principles governing the subject of its action, and to reversal on appeal where
no reasonable basis for the action is shown.â€
(9 Witkin, supra, Appeal, §
364, p. 420.) Nothing presented or
argued by appellant supports a determination there was no reasonable basis for
the court’s apportionment of fees favoring respondent. Appellant has failed to submit an adequate
record and has wholly failed to affirmatively show error or any grounds for
relief. On this record, we cannot fairly
assess whether the trial court abused its discretion in apportioning fees between
appellant and respondent. The order
apportioning fees must therefore be affirmed.
The order of April 12, 2013, is affirmed. Respondent is
to recover his costs on appeal.
GRIMES,
J.
We concur:
RUBIN,
Acting P. J. FLIER, J.
name="_ftn1" title="">[1] The minimal clerk’s transcript provided by appellant does
not contain the substitution form for the minor plaintiff, but the parties
appear to be in agreement that all
three plaintiffs discharged appellant, and respondent became their new counsel
in October 2012. The substitution forms
were executed by the adult plaintiffs and respondent in August 2012, but
appellant did not sign the forms until October 2, 2012.
