Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC365431 Malcolm H. Mackey, Judge.
Law Offices of Ronald Richards and Associates, Ronald N. Richards, Nicholas A. Bravo, and Patrick T. Santos for Defendant and Appellant.
Law Offices of David R. Denis, David R. Denis; and M. Michael Saint-George for Plaintiff and Respondent.
SUZUKAWA, J.
In this attorney fee dispute, plaintiff (Attorney David R. Denis) recovered a breach of contract judgment against defendant (Denis’s client, Alex Maimon). We reject Maimon’s contentions and we affirm.
BACKGROUND
I. The Federal Narcotics Action
In December 2001, Maimon was convicted of federal narcotics charges and was sentenced to over 24 years in federal prison. While his appeal to the Ninth Circuit was pending, Maimon entered into settlement negotiations with the United States Attorney’s Office. As a result, the prosecution and defense filed a joint motion to vacate the judgment and remand for resentencing. The motion was granted on March 11, 2004.
Denis became Maimon’s attorney of record on April 26, 2004. The parties signed a legal services agreement on June 22, 2003, which they modified in writing on May 12, 2004 (the fee agreement). According to the fee agreement, Maimon was to pay a flat rate of $75,000 for the itemized services that Denis was to provide in the federal action.
On or around July 23, 2004, Maimon was released on bail pending a final settlement of the federal action. The prosecution was offering a 14-year prison term, which Maimon hoped to reduce by cooperating with the authorities.
On March 17, 2005, Maimon filed a substitution of counsel and Denis was no longer the attorney of record in the federal action.
On August 23, 2006, having received only a $5,000 payment, Denis submitted a $70,000 bill to Maimon for services provided under the fee agreement.
On December 8, 2006, Maimon received a 46-month prison term, which was essentially time served.
II. The Present Action for Attorney Fees
On January 26, 2007, Denis filed the present action against Maimon for attorney fees. The complaint alleged causes of action for breach of contract, common counts, account stated, quantum meruit, fraud and deceit, and constructive fraud.
Following a bench trial, the trial court issued a detailed statement of decision that is summarized in the margin. Based on its findings, the trial court ruled in favor of Denis on the breach of contract claim. Of the $75,000 that was owed under the fee agreement, the trial court granted a $5,000 credit for the prior payment. It also deducted $10,000 for fees that were not earned because Denis “was terminated before he could perform the remaining reduction hearing.” This left a net fee award of $60,000, which resulted in a final judgment, with prejudgment interest and costs, of $125,947.28.
The trial court’s statement of decision included the following findings: (1) Denis performed legal services for Maimon from June 2003 through March 17, 2005, and was Maimon’s attorney of record in the underlying action from April 26, 2004, through March 17, 2005; (2) under the second retainer agreement of May 12, 2004, which modified the initial agreement of June 22, 2003, Maimon agreed to pay $75,000 for specified legal services that Denis was to perform in the underlying action; (3) of the $75,000 fee, Maimon paid $5,000 and owed a balance of $70,000 (from which the court deducted $10,000 for unearned fees); (4) it was undisputed that Denis played an “integral” role in reducing Maimon’s 24-year sentence to 14 years and in negotiating a possible further reduction based on his cooperation with the government; (5) it was undisputed that through Denis’s efforts, Maimon “was allowed the opportunity to have his sentence reduced to 46 months, which was in essence time served”; (6) it was undisputed that Denis played an “integral” role in negotiating Maimon’s release on bail while he still faced a possible sentence of 14 years; (7) the billing prepared by Denis was credible; (8) after performing a substantial amount of work, Denis was terminated without being paid the balance due under the agreement; (9) Maimon breached the agreement by failing to pay the balance due within 90 days of his release on bail; (10) the retainer agreement was “enforceable as a flat fee contract negotiated by the parties”; (11) the parties entered into the retainer agreement in their individual capacities; (12) Denis filed the complaint in his individual capacity and not on behalf of his professional corporation; (13) the retainer agreement was a binding written contract that complied with Business and Professions Code section 6148; (14) the cause of action for breach of written contract was timely filed within the four-year limitations period of Code of Civil Procedure section 337, subdivision (1); and (15) because Denis prevailed on the written contract claim, the two-year limitations period for quasi-contract or quantum meruit is inapplicable.
In this appeal from the judgment, Maimon contends that: (1) Denis was not a party to the fee agreement and therefore lacked standing to sue for breach of contract; (2) the retainer agreement was invalid and unenforceable; (3) the trial court should have excluded evidence as a discovery sanction; and (4) the complaint was barred by the statute of limitations.
DISCUSSION
I. Denis Was a Party to the Fee Agreement and Therefore Had Standing to Sue for Breach of Contract
Maimon contends that because Denis was not a party to the fee agreement, he therefore lacked standing to sue for breach of contract. The contention lacks merit.
The trial court found that the fee agreement was signed by Denis in a personal capacity. The court based this finding on Denis’s testimony that he signed the fee agreement as both a representative of his law firm and as an individual.
To the extent the fee agreement was ambiguous as to whether Denis had signed in an individual or representative capacity, both views were correct. His testimony, which was neither contradicted nor objected to below, established that: (1) he signed the fee agreement “[o]n behalf of myself and my law firm”; (2) Maimon “owes for my services, and he owes my firm for its services. It’s all in [sic] the same”; and (3) “I mean to basically retain my services and then the services of my firm as well.”
Denis’s testimony that he signed in a dual capacity is consistent with our reading of the fee agreement. On the one hand, Denis’s signature—“By: David R. Denis”—clearly disclosed that he was signing the agreement as a representative of the firm. (See Carlesimo v. Schwebel (1948) 87 Cal.App.2d 482, 486-487 [had the agent, Schwebel, “appended the preposition ‘by’ immediately before his signature, there would be no doubt at all that the contract would have disclosed, on its face, not only that [Carlesimo] was dealing with the corporation, but that Schwebel was signing as an agent and not as a principal”].)
On the other hand, the fee agreement also identified Denis as the specific “Attorney” whose services were being retained. Not only did the agreement identify Denis as the “Attorney” who “agrees to represent Client” and “agrees to utilize his best faith effort, ” it specifically named him as a party to the contract: “This agreement is the complete contract between Attorney and Client.”
In reviewing the trial court’s interpretation of a contract where, as here, the evidence is not in conflict, we apply the de novo standard of review. (DVD Copy Control Assn., Inc. v. Kaleidescape, Inc. (2009) 176 Cal.App.4th 697, 713 [“Our review of the trial court’s interpretation of a contract generally presents a question of law for this court to determine anew.”]; Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865.) Applying that standard here, we find the evidence supports the view that Denis signed the fee agreement as both a representative of his firm and as the individual attorney whose services were retained. We therefore hold that Denis was a party to the fee agreement, which means that he had standing to sue for breach of contract. In light of our determination, the law firm’s failure to pursue this action is irrelevant. We therefore do not address Maimon’s related argument that, because the law firm was suspended for nonpayment of taxes, it was incapable of filing this action.
II. The Retainer Agreement Was Valid and Enforceable
The trial court held that the fee agreement was “enforceable as a flat fee contract negotiated by the parties.” After applying a $5,000 credit for the prior payment and a $10,000 deduction for the fees that were not earned, the court entered a net award of $60,000 based on findings that: (1) Denis had “substantially performed all of the provisions of the contract prior to termination”; and (2) the “billable hours [were] credible and [the hourly rate of] $400/hr [was] reasonable.”
Maimon challenges the award on the theory that by using the term “nonrefundable, ” the fee agreement required a “prepaid fee, ” which is “per se unethical.” He relies on California Rules of Professional Conduct rule 3-700(D) (rule 3 700(D)), which requires the prompt refund of unearned fees except when a true retainer is paid. He argues that “[b]ecause there is no dispute here that the agreement at issue clearly violates... rule 3-700(D)(2)’s prohibition on not returning unearned fees, the court should conclude that the doctrine of illegality applies facially to the entire agreement. The agreement itself, therefore, is unenforceable.” The contention lacks merit.
Maimon’s assertion that the fee agreement violated rule 3-700(D) is erroneous. By its terms, rule 3-700(D) applies when a refund is owed for unearned fees. Here, no refund was owed because, with the exception of the partial payment of $5,000, no fees had been paid. Without a prepayment or overpayment of fees, no refund was due, and no violation of rule 3-700(D) could possibly have occurred.
III. There Was No Basis for Discovery Sanctions
Maimon contends that the trial court should have excluded Denis’s billing records as a discovery sanction. He states that “[t]he trial Court failed to act as a proper gatekeeper here when he permitted Mr. Denis to admit into evidence a copy of hourly billing statements which were not disclosed during discovery over Appellant’s objection.”
The problem with this contention is that in the absence of a noticed motion and hearing, evidence sanctions are unavailable. (See Code Civ. Proc., § 2023.030, subds. (a), (c) [the court may impose an evidence sanction only after notice and opportunity for hearing].) As the trial court pointed out below, Maimon never moved to compel production of the disputed billing records. In response to Maimon’s assertion at trial that “evidence sanctions” were warranted, the trial court inquired, “Did you make an objection or bring an objection to compel record sheets?” Maimon’s counsel replied, “No.” The trial court stated, “Okay. Well, then, but you can use the information you’re telling me for cross-examination. And I’ll listen to it.” As Maimon has failed to explain why the trial court’s ruling was erroneous, no further discussion is required.
IV. The Complaint Was Not Barred by the Applicable Statute of Limitations
In light of our determination that Denis was a party to a written fee agreement that was valid and enforceable, it necessarily follows that the applicable statute of limitations was the four-year period for actions on written contracts. (Code Civ. Proc., § 337, subd. (1).) It is undisputed that the complaint was timely filed within the four-year period. Accordingly, we need not consider whether the complaint was barred by a shorter limitations period for quantum meruit and account stated.
DISPOSITION
The judgment is affirmed. Denis is awarded his costs on appeal.
We concur: EPSTEIN, P.J., WILLHITE, J.