Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06CC10679, Corey S. Cramin, Judge.
April R. Blackman, in pro. per., for Defendant and Appellant.
Timothy A. Barker, in pro. per., for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
April R. Blackman provided legal services to Timothy A. Barker, the plaintiff in an underlying tort action. Blackman received $15,000 into her client trust account on Barker’s behalf, as a partial settlement in the underlying action. Blackman transferred the $15,000 out of the client trust account to cover the unpaid legal fees incurred by Barker. Barker then sued Blackman for legal malpractice. After a bench trial, the court awarded Barker $15,000 in damages. Blackman appeals.
Substantial evidence supports the trial court’s judgment. The $15,000 deposited into Blackman’s client trust account was the property of Barker. Blackman failed to assert a compulsory cross claim for unpaid fees or plead offset as an affirmative defense; therefore, the issue of Blackman’s entitlement to any portion of the money received in settlement of the underlying action was not before the trial court. We therefore affirm.
Statement of Facts and Procedural History
Barker originally hired Blackman’s law firm to represent him in a lawsuit against his former employer. When Blackman left the firm, she continued to represent Barker. Blackman and Barker never signed a retainer agreement, and Blackman did not obtain the case file containing a retainer agreement with her former firm. Blackman claimed she had an oral agreement with Barker to be paid $150 per hour, but Blackman never sent Barker a bill. Blackman claimed she and Barker then agreed to change to a 40 percent contingency fee agreement, although Barker still refused to sign a retainer agreement. Barker testified their agreement was for a one third contingency fee.
At a mandatory settlement conference on October 10, 2002, Barker and his former employer reached an agreement to settle the case for $40,000, with an initial payment of $15,000, and further payments of $2,083.14 per month for 12 months. Barker refused to sign the settlement agreement. He changed his mind and attempted to get the settlement set aside. Barker refused to sign a substitution of attorney form submitted by Blackman and instructed her to proceed with his case. Blackman opted not to file a motion to be relieved as counsel because by doing so, it could affect her right to collect payment for her services.
In October 2004, Barker’s former employer filed an order to show cause to dismiss the case, because Barker had refused to accept the settlement payments. The court ordered that the case would be dismissed on December 15, 2004, if Barker failed to deposit the $15,000 initial settlement payment. Another attorney, acting as a go between for Blackman and Barker, told Blackman that she should deposit the settlement check, which was written to Barker and Blackman, into her client trust account, which Blackman did; although Blackman never received written authorization from Barker to sign his name to the check, she did. In June 2005, Blackman removed the $15,000 from her client trust account to pay herself for her services. She did not have Barker’s authorization to do so.
On October 5, 2005, Barker signed a substitution of attorney form, substituting Blackman out of the case. In March 2006, Barker filed a motion to enforce the settlement agreement with his former employer, which was granted. By that time, Barker’s former employer had filed bankruptcy and gone out of business.
On October 5, 2006, Barker sued Blackman for professional negligence. Blackman did not file a cross complaint for attorney fees or allege offset as an affirmative defense. Following a bench trial, the court entered judgment in favor of Barker in the amount of $15,000, and imposed a constructive trust on the settlement funds received by Blackman in the underlying action. Blackman timely appealed.
Barker’s respondent’s brief fails to comply with California Rules of Court, rule 8.204(a)(1)(C), which requires all appellate briefs to “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” In addition to failing to support most of his factual statements with references to the record, Barker has included in his factual recitation much evidence that was never before the trial court. Although we could strike the brief with leave to file a new brief in compliance with the rules (Cal. Rules of Court, rule 8.204(e)(2)(B)), we will instead ignore those noncompliant portions of the brief (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 990).
“‘When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.’ [Citation.]” (Jameson v. Five Feet Restaurant, Inc. (2003) 107 Cal.App.4th 138, 143.) In reviewing the evidence on appeal, all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged to affirm the judgment if possible. (In re Marriage of Bonds (2000) 24 Cal.4th 1, 31.) We do not reweigh or reinterpret the evidence. (Quintanilla v. Dunkelman (2005) 133 Cal.App.4th 95, 113 114.)
Where, as here, no statement of decision was requested from the trial court, the appellate court will infer all factual findings necessary to support the judgment and analyze whether those findings are supported by substantial evidence. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)
There was sufficient evidence to support the trial court’s judgment. The $15,000 deposited in Blackman’s client trust account was a partial payment on the $40,000 settlement with Barker’s former employer. That money belonged to Barker, and the court did not err in imposing a constructive trust on it. As the court noted, Blackman acted “wrongfully [in] withholding those funds and simply taking them as attorneys fees without making a claim in the court under the circumstances set forth here.”
Blackman argues on appeal that the trial court erred by awarding Barker damages of $15,000 because Blackman was entitled to $15,000 for the reasonable value of legal services she provided to Barker. (Barker testified he owed Blackman one third of $40,000.) As the trial court correctly noted, however, Blackman never raised a cross-claim for recovery of attorney fees, and did not assert any affirmative defenses such as offset. Blackman’s entitlement to fees for her services was therefore not an issue before the trial court. (K.R.L. Partnership v. Superior Court (2004) 120 Cal.App.4th 490, 498 499 [when client sues attorney for legal malpractice or breach of fiduciary duty, attorney’s claim for unpaid fees incurred in providing allegedly negligent services to client is compulsory cross claim].) The cases Blackman cites as authority for her right to retain the $15,000 to cover her professional fees involved claims by the attorneys for recovery of fees, and are therefore inapposite to the case before us. (E.g., Fracasse v. Brent (1972) 6 Cal.3d 784; Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257; Fergus v. Songer (2007) 150 Cal.App.4th 552.)
At oral argument on appeal, Blackman asserted she did not need to file a cross-claim, and her affirmative defenses of lack of damages and lack of improper payment from the settlement proceeds were sufficient. Her argument does not withstand analysis, because, even if she had properly raised the issue, the trial court found in favor of Barker and against Blackman regarding Blackman’s lack of entitlement to retain the funds. Blackman’s argument that she had already been “paid” her fees also fails because the court found she was not authorized to be “paid” from the client trust account.
Disposition
The judgment is affirmed. Respondent to recover costs on appeal.
WE CONCUR: SILLS, P. J., MOORE, J.