Larsen, Goldring & Zeitler v. Brooks
Filed
7/23/12 Fishman, Larsen, Goldring &
Zeitler v. Brooks CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
FISHMAN, LARSEN, GOLDRING &
ZEITLER,
Plaintiff and
Respondent,
v.
BETTY BROOKS,
Defendant and
Appellant.
F062012
(Super.
Ct. No. 151586)
APPEAL from
a judgment of the Superior Court of
County. Brian L. McCabe, Judge.
Betty
Brooks, in pro. per., for Defendant and Appellant.
Doerksen
Taylor and Charles L. Doerksen for Plaintiff and Respondent.
-ooOoo-
Appellant Betty Brooks hired respondent, the law firm of
Fishman, Larsen, Goldring & Zeitler, to represent her with regard to
ongoing litigation over appellant’s deceased parents’ trusts. When appellant refused to pay the legal fees
she had incurred, respondent filed the underlying action to recover those
fees. On respondent’s motion, the trial
court granted summary judgment in
respondent’s favor.
Appellant
contends the trial court erred.
According to appellant, respondent was not entitled to collect its fees
because the services were rendered in contradiction of the rules of
professional responsibility. Appellant
argues respondent committed fraud and failed to disclose conflicts of interest.
The trial
court correctly granted summary judgment.
Respondent met its burden of proving each element of its cause of action
entitling it to judgment as a matter of law.
Appellant failed to produce admissible evidence showing the existence of
either a triable issue of material fact or a defense to respondent’s cause of
action. Therefore, the judgment will be
affirmed.
BACKGROUND
Appellant
was a beneficiary of two trusts that were created by her now deceased parents,
Ray and Leona Buie. These trusts
consisted primarily of farm real property and farm equipment. The trust real property was leased to various
commercial tenants and used for active farming operations. Following Ray Buie’s death, Chris Laveglia
took over managing the trusts as a successor trustee.
In August
2006, appellant hired respondent to oppose an accounting prepared by Laveglia
and to remove Laveglia as the successor trustee. Respondent sent an engagement letter to
appellant regarding respondent’s representation with regard to the Buie
trusts. This letter stated that the fees
would be based on time and labor required and that the account would be payable
when billed. Appellant consented to this
arrangement and returned a signed copy of the letter.
Over the
course of respondent’s representation, appellant’s goals were met. In January 2007, the trial court refused to
approve the accounting submitted by Laveglia and appointed an independent
accountant to prepare the trust accounting.
In April 2007, Laveglia was removed as the trustee and a successor trustee,
who was approved by all the parties, was appointed.
As the fees
mounted, respondent modified the engagement letter’s arrangement for payment of
fees. In February 2007, respondent
agreed to wait for the substantial payment of its fees until appellant received
distributions from the trusts or “as
a result of our petition, the court has ordered the trust to reimburse you for
our fees.” Respondent also agreed to
waive interest on the unpaid balance so long as appellant made $500 per month
payments. Appellant acknowledged this
modification. In March 2007, she wrote
to respondent stating “If you had not agreed to take my case, wait for your
money, not charge me any interest on the unpaid balance, and only required me
to pay you $500 monthly on account for your services, I would not have been
able to move forward.”
By letter
dated July 13, 2007, respondent informed appellant that, because appellant had
failed to respond to repeated efforts to contact her, respondent was no longer
able to act as appellant’s counsel.
Respondent enclosed a substitution of attorney and requested that
appellant sign and return it. Respondent
also enclosed its latest bill and noted that no $500 monthly payments had been
made since April.
By letter
dated July 18, 2007, appellant responded:
“You
recently sent me a bill for attorney fees.
I am returning said bill to you.
I do not owe you any attorney fees.
I hired you to remove Christopher Laveglia (hereafter Christopher); as
successor trustee. Christopher
resigned. I won. Christopher committed misconduct .… Although Christopher resigned, it does not
affect his liability for his acts or omissions.
Christopher owes you your attorney fees.
If you want your attorney fees, you are going to have to surcharge
Christopher as the judge stated at the April 02, 2007 hearing. This will be at your own expense, not mine.”
Appellant
signed the substitution of attorney on July 29, 2007, and began representing
herself as of August 2, 2007.
In
September 2008, respondent filed the underlying complaint for breach of
contract to collect the approximately $106,000 in legal fees owed by
appellant. A few months later,
respondent obtained a prejudgment writ of attachment for its fees.
Appellant
demanded nonbinding fee arbitration.
Following a hearing, the fee arbitration panel awarded respondent
$66,576. Appellant rejected the award.
Respondent
then filed a motion for summary judgment
or, in the alternative, summary adjudication as to the first cause of action
for breach of contract. In opposition,
appellant filed a declaration with attached exhibits. Respondent filed objections to all but the
first two paragraphs of appellant’s declaration and all but two of the
exhibits.
Following a
hearing, the trial court sustained all of respondent’s objections to
appellant’s evidence. The trial court
also granted appellant’s oral motion to strike any reference to the parties’
prior arbitration.
The court noted that appellant
failed to comply with the procedural requirements of Code of Civil Procedure section 437c,
subdivision (b)(3), in that she failed to file a memorandum of points and
authorities in opposition to the motion and failed to state whether she disputed
the material facts respondent contended were undisputed. Nevertheless, the court decided to exercise
its discretion and review appellant’s documents to determine whether appellant
had met her burden of showing that a triable issue existed as to respondent’s
breach of contract claim.
Upon review, the court concluded
that respondent had met its burden of showing that a prima facie case for
breach of contract existed and that there was no defense. The court found that appellant did not
dispute that she entered into a fee agreement with respondent, that respondent
performed legal services, that appellant stopped paying for those services and
that appellant had an outstanding balance of $105,986.12. The court further found that appellant had
failed to raise a triable issue as to respondent’s breach of contract claim or
as to any asserted affirmative defense.
Accordingly the court granted respondent’s motion for summary
judgment. Appellant’s notice of appeal
is from this judgment.
1. Standard
of review
A party moving for summary judgment
bears the burden of persuading the trial court that there is no triable issue
of material fact and that it is entitled to judgment as a matter of law. (Brown
v. Ransweiler (2009) 171 Cal.App.4th
516, 525 (Brown).) Once the moving party meets this initial
burden, the burden shifts to the opposing party to establish, through competent
and admissible evidence, that a triable issue of material fact still
remains. If the moving party establishes
the right to the entry of judgment as a matter of law, summary judgment will be
granted. (Ibid.)
On appeal,
the reviewing court must assume the role of the trial court and reassess the
merits of the motion. (
1591, 1601.) The appellate court applies
the same legal standard as the trial court to determine whether there are any
genuine issues of material fact or whether the moving party is entitled to
judgment as a matter of law. The court
must determine whether the moving party’s showing satisfies his or her
in the moving party’s favor. (
526.) In doing so, the appellate court
must view the evidence and the reasonable inferences therefrom in the light most
favorable to the party opposing the summary judgment motion. (Essex
Ins. Co. v. Heck (2010) 186 Cal.App.4th 1513, 1522.)
Where, as here, the moving party is
the plaintiff, that party meets its statutory burden of showing that there is
no defense to a cause of action if it has proved each element of the cause of
action entitling the party to judgment on that cause of action. (Oldcastle
Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554,
562 (Oldcastle Precast).) The burden then shifts to the defendant to
produce admissible evidence showing that “‘a triable issue of one or more
material facts exists as to that cause of action or a defense thereto.’” (Riverside
County Community Facilities Dist. v. Bainbridge 17 (1999) 77 Cal.App.4th
644, 653.) The plaintiff’s initial
burden does not include disproving any affirmative defenses asserted by the
defendant. Rather, the burden is on the
defendant to demonstrate that a defense exists.
(Oldcastle Precast, supra, at
p. 564.)
2. Respondent
met its initial burden of proof.
Respondent
moved for summary judgment on its breach of contract cause of action. To recover for breach of contract, a
plaintiff must plead and prove “(1) a contract, (2) plaintiff’s
performance or excuse for nonperformance, (3) defendant’s breach, and
(4) damage to plaintiff.” (
College Dist. (1998) 66 Cal.App.4th 1532, 1545 (Walsh).)
Here, as
found by the trial court, respondent established these elements and appellant
did not dispute that they existed. The
parties entered a contract under which respondent was to perform legal services
for appellant for an hourly fee, respondent performed the
paying for the legal services, leaving an outstanding balance of approximately
$106,000. Accordingly, respondent met
its initial burden of proof on its breach of contract cause of action.
3. Appellant
did not meet her burden of establishing either a triable issue of material fact
or a defense.
The grounds
for reversal urged by appellant relate to an alleged procedural irregularity, a
claimed disputed fact, and asserted defenses.
However, appellant does not dispute that a contract existed, that
respondent performed legal services and that she did not pay for all of the
services rendered, i.e., the elements of a breach of contract cause of action.
Appellant
argues that the summary judgment must be reversed because respondent did not
follow all of the procedural requirements.
According to appellant, respondent’s separate statement of undisputed
facts was not in the proper format.
Regardless, appellant did not make this objection in the trial court and
therefore cannot raise this issue on appeal.
New defense theories may not be asserted for the first time on
appeal. (Bardis v. Oates (2004) 119 Cal.App.4th 1, 13-14, fn. 6.)
Based on a
paragraph in the complaint, appellant asserts that there was an issue of
disputed fact. In its complaint,
respondent alleged that “Ms. Brooks discharged Plaintiff as her counsel in all
matters.” Appellant claims that this statement is false because she did not
discharge respondent but rather respondent withdrew as her counsel. However, the manner in which this
attorney-client relationship terminated is irrelevant to respondent’s breach of
contract claim. Appellant was liable for
the fees incurred under the contract regardless of whether she discharged
respondent or respondent withdrew. Proof
that appellant discharged respondent was not an element of the cause of
action. (Walsh, supra, 66 Cal.App.4th at p. 1545.) Therefore, appellant has not shown the
existence of a triable issue of material
fact.
As a
defense, appellant contends that respondent was not entitled to recover its fees
because two of the attorneys who represented her did not disclose that they had
conflicts of interest. The Buie trusts
had loans from RCO Ag Credit, Anderson Clayton and Bank of America. According to appellant, trust property was
sold to pay these creditors. Appellant
alleges that Robert Fishman had a prior relationship with Anderson Clayton and
Bank of America because Fishman’s former law firm represented these parties
while Fishman was with that firm.
Similarly, appellant alleges that Peter Zeitler had a prior relationship
with RCO Ag Credit because Zeitler’s former law firm represented RCO Ag Credit
while Zeitler was with that firm.
Appellant argues that Fishman and Zeitler intentionally concealed these
past relationships.
However,
appellant did not produce any admissible evidence to support these claims. The majority of appellant’s declaration in
opposition to the summary judgment motion and the attached exhibits were ruled
inadmissible. Appellant has not
challenged this evidentiary ruling on appeal and thus we presume it was
correct. (Stockinger v. Feather River Community College (2003) 111
Cal.App.4th 1014, 1022.) Accordingly,
appellant’s evidence consisted of her recitation of her family history (pars. 1
& 2 of appellant’s declaration), an incomplete copy of the supplemental
objection to the petition of account and approval of trustee’s fees (exh. 10),
and a redacted page from a trust accounting (exh. 21). Thus, appellant did not meet her burden of producing
admissible evidence showing a triable issue of material fact or a defense.
In her
briefs, appellant relies on her declaration in support of her motion for a new
trial and the attached exhibits to support her argument. However, these documents were filed after
entry of the judgment that appellant appealed from. Accordingly, this evidence will not be
considered. When reviewing a trial
court’s judgment, the appellate court will consider only matters that were part
of the record when the judgment was entered.
(Reserve Insurance Co. v. Pisciotta
(1982) 30 Cal.3d 800, 813.)
Moreover,
even if we were to consider appellant’s evidence, she has not demonstrated that
either Fishman or Zeitler had a conflict of interest due to successive
representation of clients with potentially adverse interests.
Under rule 3-310(E) of the Rules of
Professional Conduct of the State Bar of California, an attorney cannot,
“without the informed written consent of the client or former client, accept
employment adverse to the client or former client where, by reason of the
representation of the client or former client, the member has obtained
confidential information material to the employment.” The primary purpose of this rule is to
protect the confidential relationship between attorney and client. (Goldstein
v. Lees (1975) 46 Cal.App.3d 614, 619.)
Thus, for the rule to apply there must be a substantial relationship
between the current case and the matters handled by the firm-switching
attorney’s former firm. The question is
whether confidential information material to the current dispute would normally
have been imparted to the attorney by virtue of the nature of the former
representation. (Ibid.; Adams v.
Aerojet-General Corp. (2001) 86 Cal.App.4th 1324, 1331, 1340.)
Here, there is no evidence that the
matters handled by the former firms of Fishman and Zeitler had any relationship
to respondent’s representation of appellant.
The former firms performed unspecified work for these lenders. There is no evidence that this work related
to the Buie trust loans. More
importantly, respondent’s representation of appellant was not related to the
loans from Bank of America, Anderson Clayton or RCO Ag Credit. Rather, appellant hired respondent to oppose
an accounting and remove the successor trustee.
Since the evidence proffered by appellant does not demonstrate that
either Fishman or Zeitler had a conflict of interest, appellant failed to meet
her burden of establishing this asserted defense.
The judgment is affirmed. Costs on appeal are awarded to respondent.
_____________________
Kane, J.
WE CONCUR:
_____________________
Wiseman, Acting P.J.
_____________________
Cornell, J.
name="_ftn1" title="">[1] Relying
on the arbitration hearing transcript, respondent argues that this defense
fails because appellant admitted under oath that the various loans were valid
loans and that neither she nor the trusts had any dispute with the
lenders. Respondent acknowledges that
the trial court excluded the evidence relating to the arbitration proceeding
and asserts that it should have been admitted.
However, because respondent did not appeal this evidentiary ruling, we
lack jurisdiction to review it. (
10 Cal.App.4th 612, 623.)
