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Fitzgerald Abbott & Beardsley LLP v. Miller

California Court of Appeals, First District, Third Division
Jul 31, 2008
No. A118762 (Cal. Ct. App. Jul. 31, 2008)

Opinion


FITZGERALD ABBOTT & BEARDSLEY LLP, Plaintiff and Respondent, v. MICHELLE MILLER, Defendant and Appellant. A118762 California Court of Appeal, First District, Third Division July 31, 2008

NOT TO BE PUBLISHED

Alameda County Super. Ct. No. RG05244486

Jenkins, J.

This is an appeal from a judgment following a bench trial in a lawsuit for breach of two legal services contracts. Appellant Michelle Miller (Miller) claims the trial court erred in finding that she breached the contracts and in holding her liable to respondent Fitzgerald Abbott & Beardsley LLP (Fitzgerald) for unpaid legal bills and accrued interest totaling $52,741, and for attorney’s fees and costs totaling $57,269. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Complaint and the Underlying Dispute.

On or about December 1, 2005, Fitzgerald filed a complaint against Miller asserting causes of action for breach of contract and quantum meruit. The complaint stemmed from legal services Fitzgerald provided to Miller in connection with a dispute she had with her neighbors, Richard and Theresa Ellis, in Oakland. Miller, who has suffered from chemical sensitivity since being exposed to a dangerous mosquito repellant while travelling abroad, became concerned that the Ellises were releasing or causing to be released on their property toxins that were being carried by the wind to her adjoining property, rendering it uninhabitable for her. At least once, Miller had to seek emergency medical treatment following the Ellises’s use of pesticides or other toxic chemicals on their property.

After several unsuccessful attempts to reach an agreement with the Ellises regarding their use of toxic chemicals on their property, Miller contacted Barry Epstein, managing partner at Fitzgerald, in July or August 2003 to discuss her legal options. A friend of Miller’s had recommended Epstein based on his environmental law experience. Epstein, in turn, asked his associate, Paul Kibel, to return her call because Kibel had experience in neighbor-related environmental contamination disputes.

II. The August 2003 Agreement.

After a detailed discussion with Kibel regarding her legal claims and options, Miller asked Kibel to prepare a fee agreement for her consideration for services to be rendered in connection with seeking a settlement agreement with the Ellises. Kibel thus faxed a copy of a fee agreement to Miller. On the coversheet attached to the fax, Kibel wrote that he anticipated that drafting a comprehensive demand letter and engaging in initial settlement discussions with the Ellises would cost between $4,000 and $6,000. Kibel also wrote on the coversheet that, should Miller’s fees on the matter approach $6,000, he would “let [her] know beforehand so we can discuss how you would like to proceed.” In August 2003, Miller signed the fee agreement (hereinafter, the August 2003 agreement), and returned it to Kibel along with a $1,500 retainer.

The August 2003 agreement contained several provisions relevant to Fitzgerald’s subsequent legal claims, which we set forth below.

Section 2, “Scope of Services and Client’s Responsibilities,” expressly limited the scope of Fitzgerald’s services to Miller to non-litigation activities:

“You are hiring us as your attorneys, to provide legal services to you and on your behalf in connection with settlement discussions with and presentation of settlement demands to your neighbors Richard and Theresa Ellis in connection with activities that are causing toxic chemicals to enter your property. This Agreement does not cover litigation or the filing of a lawsuit or request for injunctive relief with a court, and a separate fee agreement and retainer would be required in connection with such services. . . . You shall cooperate with us as your attorneys . . ., abide by this Agreement, pay your bills on time . . . .”

Section 5, “Legal Fees and Billing Practices,” provided that Fitzgerald was to be paid an hourly rate based on the prevailing rates for time spent on the matter by its attorneys and other legal personnel:

“. . . [Fitzgerald] will use various personnel by assigning all or parts of the work to particular attorneys or legal assistants, as [Fitzgerald] deems appropriate. The fee for [Fitzgerald’s] services will be charged at the hourly rate of the particular attorney or legal assistant currently working on your case, plus any costs or legal expenses advanced. [¶] “You agree to pay [Fitzgerald] by the hour at our prevailing rates for time spent on your matter by our legal personnel. Our current hourly rates for legal personnel (and other billing rates) are set forth on the attached rate schedule. Rates will be reviewed annually and adjusted periodically. Newly adopted rates will be reflected on your statement. Services rendered following that date will be reflected on statements at the new rates. A Rate Schedule will be forwarded to you upon request. [¶]

“We will charge you for all time we spend on your case, including, but not limited to, telephone calls relating to your matter, including calls with you, opposing counsel or court personnel. The legal personnel assigned to your matter may confer among themselves about the matter, as required. When they do confer, each person will charge for the time expended. . . . ”

Section 6, “Payment Terms,” provided in part: “We will send you monthly invoices for fees and/or costs incurred. Each invoice will be due 15 days from the invoice date. Legal fees for [Fitzgerald] professional services and costs remaining unpaid thirty (30) days after the date of invoice shall earn interest at the rate of ten percent (10%) per annum thereafter until paid.”

Finally, section 8, “Enforcement of this Agreement,” provided for a right of arbitration and entitled the prevailing party in any action or proceeding to enforce the agreement to recover certain attorney’s fees and costs:

“If a dispute arises regarding attorneys’ fees or costs under this Agreement and [Fitzgerald] files suit in any court other than small claims court, you will have the right to stay that suit by timely electing to arbitrate the dispute under Business and Professions Code sections 6200-6206, in which event [Fitzgerald] must submit the matter to such arbitration. [¶]

“The prevailing party in any action or proceeding to enforce any provision of this Agreement will be awarded reasonable attorney’s fees and costs incurred in that action or proceeding or in efforts to negotiate the matter.”

In addition, at Miller’s request, a handwritten provision was added to the August 2003 agreement providing that: “Beyond the preparation of the demand letter, [Fitzgerald] will consult with you before undertaking any significant new legal tasks, where significant is defined as more than 2 hours.”

Following Miller’s execution of the August 2003 agreement, Kibel conducted factual and legal research, and then presented to Miller several potentially viable legal theories. Consistent with Miller’s wishes, Kibel then wrote a demand letter to the Ellises advising them of their potential liability and seeking an agreement from them to use non-toxic products for any exterior painting and gardening work on their property, and to provide Miller with advance notice of such work so that she could take steps to avoid suffering any adverse physical reaction to it. Eventually, Kibel was able to negotiate a settlement agreement with the Ellises on Miller’s behalf (the settlement agreement). Consistent with that settlement agreement, the Ellises refrained from using certain toxic chemicals on their property until March 2004, when a breach of the agreement purportedly occurred.

III. The March 2004 Agreement.

In March 2004, the Ellises purportedly breached the settlement agreement by taking steps to begin exterior painting on their property without advance notice to Miller. Miller advised Kibel of this purported breach, and requested that he perform additional legal services to address it. Kibel thereafter had numerous communications with the Ellises and their agents in efforts to prevent further breach of the settlement agreement. Eventually, after Miller reported suffering an adverse physical reaction as a result of the Ellises’s activities, she met at length with Kibel to discuss further legal options for handling the dispute.

During this face-to-face meeting, Kibel advised Miller that he believed she would need to seek a traditional restraining order and preliminary injunction to stop the Ellises’s toxic activities. Kibel explained such injunctive relief and what Fitzgerald would need to do to seek it on her behalf. Kibel also told Miller that, to proceed with litigation, she would need to sign a new fee agreement and pay a new retainer sum of $7,500. He further told her that the case would be “very, very difficult.” Miller nonetheless decided to pursue the litigation because she wanted a “permanent solution” to her problem.

After the meeting, Kibel wrote an email to Miller confirming their discussions. Specifically, Kibel wrote that “your instructions to me” were to prepare “the necessary legal documents to seek a temporary restraining order (TRO) to prevent the Ellises from undertaking activities that will cause toxic chemicals to enter your property and injure you . . . .” To do so, Kibel stated, Fitzgerald would need to draft an underlying complaint, a Miller Declaration, a Kibel declaration and a declaration from Miller’s physician. Kibel also stated that “based on the standard hourly rate for [his associate] Dawn Newton and myself,” the cost of preparing the TRO documents would be approximately $12,000. “This $12,000 is not a fixed fee or not-to-exceed amount. If extensive revisions are required in connection with the declaration preparation, or if you require extensive revisions to the underlying complaint or proposed TRO, it is possible that the actual cost of drafting these documents and arguing the TRO could exceed the $12,000 figure.” Further, Kibel warned that the TRO application “would simply be the first step,” that a subsequent preliminary injunction hearing would likely be required, and that, should the case proceed to trial, the cost “would be in excess of $100,000.”

Following her receipt of Kibel’s email, Miller entered into a second fee agreement on March 22, 2004 (the March 2004 agreement). That agreement provided in section 2, “Scope of Services and Client’s Responsibilities,” that:

“You are hiring us as your attorneys to provide legal services to you and on your behalf in connection with litigation filed on your behalf against Richard and Theresa Ellis in connection with activities that are causing toxic chemicals to enter your property. . . . Pursuant to a previous fee agreement between [Fitzgerald] and You entered into in August 2003, You retained [Fitzgerald] to represent You in connection with pre-litigation settlement discussions and negotiations with Richard and Theresa Ellis concerning this same matter. The obligations and rights set forth in the August 2003 fee agreement shall remain in full effect as they relate to pre-litigation (prior to the filing of the lawsuit) services performed by [Fitzgerald] on your behalf.” (Emphasis added.)

The March 2004 agreement also contained provisions governing legal fees and billing practices, payment terms, and enforcement of the agreement that were virtually identical to those set forth in the August 2003 agreement.

Specifically, the March 2004 agreement provided that Miller would pay Fitzgerald “by the hour at [their] prevailing rates for time spent on [the] matter;” that Miller would receive monthly invoices that would become due in 15 days and would thereafter accrue interest at a rate of 10 percent per annum until paid; and that, should a dispute arise with respect to fees or costs owed, the prevailing party in any enforcement action or proceeding would be entitled to recover reasonable attorney’s fees and costs.

Consistent with the March 2004 agreement, Kibel and his Fitzgerald associate, Dawn Newton, thus prepared a verified complaint, Miller and Kibel declarations, and a memorandum of points and authorities in support of the TRO application. Despite Kibel’s encouragement to Miller to be efficient in preparing her case, extensive revisions to the legal documents became necessary due to Miller’s repeated communications with the attorneys and requests for changes, including changes to already-finalized documents.

Following a hearing, the trial court denied Miller’s TRO application and set an expedited briefing schedule on any preliminary injunction application, requiring Fitzgerald to prepare additional legal documents in a short period of time. Fitzgerald advised Miller of the expedited schedule, and she nonetheless agreed to proceed with the application. Fitzgerald thus prepared an amended complaint, several declarations (including a Miller, Kibel and Phoenix declaration), and a memorandum of points and authorities in support of a preliminary injunction. As before, preparation of the documents took longer than expected due to Miller’s repeated communications with the attorneys and requests for changes. Further, during the same period of time, Fitzgerald pursued mediation with the Ellises on Miller’s behalf.

As Miller’s legal fees and costs in the underlying case continued to mount, Fitzgerald offered several times to help her find other counsel willing to take the case on a less expensive, contingent fee basis. Finally, on or about April 30, 2004, after the hearing on Miller’s preliminary injunction application (which was also denied), alternate counsel substituted into the underlying case.

IV. The Alleged Breach of the Fee Agreements.

Miller received monthly invoices from Fitzgerald in connection with the firm’s provision of services under the August 2003 and March 2004 agreements on September 17, 2003; October 6, 2003; November 5, 2003; December 4, 2003; April 8, 2004, and May 6, 2004. Consistent with Fitzgerald’s standard billing procedures and the parties’ agreements, the invoices reflected work performed by the firm during the previous month. All invoices submitted before April 8, 2004 reflected pre-litigation services provided under the August 2003 agreement. The April 8, 2004 invoice included pre-litigation services performed under the August 2003 agreement in early March, as well as litigation services performed under the March 2004 agreement in late March. The May 6, 2004 invoice included litigation services performed under the March 2004 agreement.

Miller paid each of the invoices she received in 2003 in a timely manner. In 2004, Miller paid the $7,500 retainer sum when she signed the March 2004 agreement, but made no further payments. As such, the April 8, 2004 invoice reflected a balance due of $20,760.80, and the May 6, 2004 invoice reflected a balance due of $40,975.95. By January 31, 2007, on the eve of trial in this matter, Miller owed $51,051.59, with interest accruing at a rate of 10 percent per annum.

V. The Trial Court’s Decision.

Following a 7-day bench trial, the trial court found that, under the August 2003 agreement, Miller asked Fitzgerald to provide certain non-litigation legal services in connection with the Ellises’s breach of the settlement agreement in early March 2004, and that Fitzgerald provided those services. With respect to the March 2004 agreement, the trial court found that Fitzgerald was obligated to provide and Miller was obligated to pay for litigation-related services once Miller decided to pursue injunctive relief against the Ellises in the form of a TRO and preliminary injunction. The trial court further found Fitzgerald fully performed under the March 2004 agreement, but Miller did not. As such, the trial court awarded Fitzgerald $52,741.09, representing the amount of legal fees and costs Fitzgerald was owed under the parties’ agreements plus prejudgment interest, and $57,269, representing the amount of legal fees and costs Fitzgerald had incurred to enforce those agreements plus interest.

At the hearing on Fitzgerald’s post-trial motion for attorney’s fees and memorandum of costs, the trial court granted the motion on the record and awarded Fitzgerald $5,749 in costs and $51,520 in fees, totaling $57,269. The trial court’s subsequent minute order, however, mistakenly stated that Fitzgerald would be awarded only $5,749 in attorney’s fees, the amount the trial court awarded in costs at the hearing. Once Fitzgerald advised the trial court of its mistake, an amended order was issued reflecting the award of $51,520 in fees and $5,749 in costs. Miller claims the trial court amended the award from $5,749 in fees to $51,520 in fees after Fitzgerald moved ex parte for additional relief, but fails to mention the trial court’s initial decision on the record to award Fitzgerald the higher amount.

This timely appeal followed.

DISCUSSION

Miller, proceeding in propia persona, contends the trial court erred in entering judgment in favor of Fitzgerald and awarding the firm attorney’s fees for the following reasons: (1) there was insufficient evidence that Fitzgerald fully performed under the August 2003 and March 2004 agreements, and that Miller breached them; (2) prejudgment interest should not have accrued while the parties were involved in arbitration proceedings to resolve their fee dispute; and (3) the award of attorney’s fees should have been limited to those fees actually incurred by Fitzgerald in prosecuting this case. We affirm.

I. Legal StandardBreach of Contract.

In reviewing the trial court’s decision in this case, the following principles apply. “We independently interpret a written contract when no extrinsic evidence and related credibility questions were presented below.” (Culligan v. State Comp. Ins. Fund (2000) 81 Cal.App.4th 429, 434.) “ ‘The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. (Civ. Code, § 1636.)’ [Citation.] ‘Such intent is to be inferred, if possible, solely from the written provisions of the contract.’ [Citation.] ‘If contractual language is clear and explicit, it governs. (Civ. Code, § 1638.)’ [Citation.]” (La Jolla Beach & Tennis Club, Inc. v. Industrial Indemnity Co. (1994) 9 Cal.4th 27, 37.)

Further, to the extent Miller challenges the trial court’s express or implied factual findings, we examine the record for substantial evidence to support those findings. (Nordquist v. McGraw-Hill Broadcasting Co. (1995) 32 Cal.App.4th 555, 561.) “ ‘When a finding of fact 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 there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact. [Citations.] [[¶] ] 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.’ [Citation.]” (Scott v. Common Council (1996) 44 Cal.App.4th 684, 689, quoting Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc. (1967) 66 Cal.2d 782, 784-785.) Moreover, the testimony of a single credible witness may constitute substantial evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)

II. Breach of the 2003-2004 Fee Agreements.

Miller contends the trial court erred in finding her liable for over $51,000 in unpaid legal bills because Fitzgerald, the complaining party, breached the March 2003 and August 2004 agreements in several different ways. A party generally may not be held liable for breach of contract where the party claiming breach failed to perform its own obligations under the contract. (Civ. Code, § 1439.)

A. Fitzgerald’s Performance.

Miller first claims Fitzgerald breached the fee agreements by failing to keep her informed of the fees and costs she was incurring in the underlying matter in a timely manner, by failing to inform her when her retainer was expended, and by failing to obtain authorization before performing additional services on her behalf. In making these claims, Miller relies on three particular statements. First, Miller points to Kibel’s written statement on the fax coversheet attached to the August 2003 agreement, providing: “If our firm’s work on this matter approaches $6,000, I will let you know beforehand so we can discuss how you would like to proceed.” Second, Miller points to the handwritten provision she added to the August 2003 agreement, stating: “Beyond the preparation of the demand letter, [Fitzgerald] will consult with you before undertaking any significant new legal tasks, where significant is defined as more than 2 hours.” Finally, she points to language in the March 2004 agreement that “[t]he obligations and rights set forth in the August 2003 fee agreement shall remain in full effect as they relate to pre-litigation (prior to the filing of the lawsuit) services performed by [Fitzgerald] on your behalf.”

We cannot accept Miller’s claims of breach based on any of these statements. First, none of those statements imposed a duty on Fitzgerald to advise her before her retainer was expended. Rather, the only language in the August 2003 and March 2004 agreements referring to exhaustion of Miller’s retainer states: “Whenever your deposit is exhausted, you will deposit an additional retainer within 10 days of our written request.” (Emphasis added.) As this language makes clear, any contractual duty arising upon the exhaustion of Miller’s retainer was imposed on Miller, not Fitzgerald.

Further, with respect to the statement on the fax coversheet offering to advise Miller when Fitzgerald’s work approached $6,000 and the handwritten provision in the August 2003 agreement requiring Fitzgerald to consult with her before undertaking significant new tasks, there is no evidence Fitzgerald failed to do these things. Rather, Kibel testified that he “consulted extensively [with Miller] throughout the work, so any additional work that [he] did was done with [her] consultation.” As set forth above, the testimony of a single credible witness – which Kibel undoubtedly was – may constitute substantial evidence. (In re Marriage of Mix, supra, 14 Cal.3d at p. 614.)

Moreover, the handwritten provision in the August 2003 agreement was not added to the March 2004 agreement. The only language in the second agreement relating to Fitzgerald’s duty to communicate with Miller regarding the status of her case required Fitzgerald to “take reasonable steps to keep you informed of the progress of your case and to respond to your inquiries.” The trial court found, and we agree, there was substantial evidence that Fitzgerald in fact met such duty. Miller, undisputedly, was sent monthly invoices for the work Fitzgerald was performing on her behalf under both agreements. In addition, Fitzgerald told Miller before her execution of the March 2004 agreement that it would cost approximately $12,000 to prepare the legal documents for the TRO, but warned her “$12,000 is not a fixed fee or not-to-exceed amount,” and that “it is possible that the actual cost of drafting these documents and arguing the TRO could exceed the $12,000 figure.” Fitzgerald also warned Miller that, should her case proceed to trial, her fees and costs could exceed $100,000. And when Miller’s fees began to accumulate rapidly once litigation was initiated against the Ellises, Fitzgerald offered several times to help Miller find alternate counsel who could offer a more affordable fee agreement. This evidence, we conclude, was sufficient to support the trial court’s finding that Fitzgerald met its contractual obligations to communicate with Miller regarding the status of her case, the work it required, and the legal bills she was incurring. (Scott, supra, 44 Cal.App.4th at p. 689; In re Marriage of Mix, supra, 14 Cal.3d at p. 614.)

While language in the March 2004 agreement incorporates by reference certain provisions of the August 2003 agreement, it does so only with respect to Fitzgerald’s performance of “pre-litigation services.” As such, even were we to read the handwritten provision as creating a duty on behalf of Fitzgerald to seek authorization before performing significant new legal tasks, such duty would not have applied to Fitzgerald’s performance of services in connection with the litigation filed against the Ellises on Miller’s behalf, which services resulted in the bulk of her unpaid legal bills.

Miller next argues that Fitzgerald breached its contractual duty to send her legal bills at the beginning of each month. But, again, the August 2003 and March 2004 agreements contain no language imposing such duty. Rather, they provide with respect to invoices: “We will send you monthly invoices for fees and/or costs incurred. Each invoice will be due 15 days from the invoice date.” There is no claim Fitzgerald failed to meet this duty, and, as the trial court found, substantial evidence – in the form of the actual monthly invoices sent to Miller – proves otherwise.

Miller, albeit in passing, makes two additional arguments relating to Fitzgerald’s performance under the August 2003 and March 2004 agreements – that Fitzgerald failed to comply with Business and Professions Code section 6148 in drafting them, and breached its fiduciary duty in executing them. Both arguments likewise fail.

With respect to Business and Professions Code section 6148, the statute requires written contracts for legal services exceeding $1,000, such as those at issue here, to contain all of the following: “(1) Any basis of compensation including, but not limited to, hourly rates, statutory fees or flat fees, and other standard rates, fees, and charges applicable to the case. (2) The general nature of the legal services to be provided to the client. (3) The respective responsibilities of the attorney and the client as to the performance of the contract.” (Bus. & Prof. Code, § 6148, subd. (a).) The statute further requires that “[a]ll bills rendered by an attorney to a client shall clearly state the basis thereof. Bills for the fee portion of the bill shall include the amount, rate, basis for calculation, or other method of determination of the attorney’s fees and costs. Bills for the cost and expense portion of the bill shall clearly identify the costs and expenses incurred and the amount of the costs and expenses. . . . ” (Id. at § 6148, subd. (b).)

Here, Miller has failed to set forth any specific way in which the August 2003 and March 2004 agreements, or the invoices issued pursuant to them, deviate from this statutory standard. Moreover, having examined the agreements in their entirety, we agree with the trial court that no such deviation exists. Rather, as is set forth above (pp. 2-4, 6, ante), the August 2003 and March 2004 agreements in clear and unambiguous language set forth Fitzgerald’s hourly-based compensation policy, the general nature of the legal services it intended to provide Miller, and the respective duties of both Miller and the firm under the agreements. In addition, the invoices provided to Miller on a timely basis clearly state the basis for the fees and costs Miller had incurred, including the amount, rate and basis for calculation, and a brief description of the services rendered or provided. As we have already stated, where “contractual language is clear and explicit, it governs” (La Jolla Beach & Tennis Club, Inc., supra, 9 Cal.4th at p. 37.); the party’s interpretation of it does not.

Finally, with respect to Fitzgerald’s alleged breach of fiduciary duty, Miller claims the trial court ignored undisputed evidence that she was ill and living away from home at the time she signed the March 2004 agreement, and thus was not an “equally situated” contracting party. But Miller cites nothing in the evidentiary record and provides little by way of legal analysis to support her claim. As such, we decline to address her argument. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1245 fn. 14 [argument waived where appellant fails to cogently present it to the appellate court with specific citations to the record].)

In so concluding, we note that litigants proceeding in propia persona, like Miller, are entitled to no special treatment from the court. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247 [pro per litigant “is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys”].)

Having concluded the evidence was more than sufficient to support the trial court’s finding that Fitzgerald fully performed under the parties’ fee agreements (Scott, supra, 44 Cal.App.4th at p. 689; In re Marriage of Mix, supra, 14 Cal.3d at p. 614.), we proceed to the issue of whether Miller breached those agreements.

B. Miller’s Performance.

As set forth above, the August 2003 and March 2004 agreements, in clear and unambiguous language, obligated Miller to “cooperate with [Fitzgerald] as your attorneys . . ., abide by this Agreement, [and] pay your bills on time . . . .” Further, the agreements made clear Fitzgerald was to be paid an hourly rate based on the prevailing rates for time spent on the matter by its attorneys and other legal personnel, and that Miller would be advised of the fees and costs she incurred for Fitzgerald’s legal services in monthly invoices that would become due 15 days from the invoice date.

Undisputedly, Miller did not comply with these terms. Specifically, as the trial court found, despite receiving legal services from Fitzgerald in connection with her settlement efforts and litigation with the Ellises, Miller did not pay the bills for such services that she received on April 8, 2004 and May 6, 2004 in a timely manner. In fact, she did not pay several of her bills at all. As such, the trial court properly found Miller breached the August 2003 and March 2004 agreements, and thus, pursuant to those agreements, that she was liable for the total amount of fees and costs outstanding, plus interest accrued at a rate of 10 percent per annum.

III. Prejudgment Interest.

Miller further contends the trial court erred in awarding Fitzgerald prejudgment interest that accrued during the period of time the parties were pursuing arbitration of their fee dispute through the State Bar pursuant to the Mandatory Fee Arbitration Act (MFAA), Business and Professions Code sections 6200 et seq. In so contending, Miller does not dispute that, pursuant to the August 2003 and March 2004 agreements, fees for Fitzgerald’s services remaining unpaid 30 days after the date of the invoice were subject to interest at a rate of 10 percent per annum until paid. Miller argues that, nonetheless, under the MFAA, “[t]he [fee] award shall not include any award to either party for costs or attorney’s fees incurred in preparation for or in the course of the fee arbitration proceeding, notwithstanding any contract between the parties providing for such an award or costs or attorney’s fees.” (Bus. & Prof. Code, § 6203, subd. (a).)

The MFAA “makes arbitrating attorney fee disputes wholly voluntary for a client and gives a client who chooses to arbitrate the option of rejecting the arbitrator’s decision and proceeding to trial.” (Aguilar v. Lerner (2004) 32 Cal.4th 974, 981.)

The fatal flaw in Miller’s argument is her disregard of the fact that she waived her right to arbitrate the fee dispute under the MFAA in lieu of litigating it. Having waived such right, Miller is barred from seeking protection from the MFAA on any other basis.

Indeed, the California Supreme Court has made this principle amply clear. Rejecting a plaintiff’s nearly identical argument “that, although he waived his right to arbitration pursuant to the MFAA, he nevertheless retained some residual rights under the act in the form of the procedural protections the statutory scheme provides to clients,” our State’s Supreme Court held: “If the client fails to invoke his or her rights under the MFAA, such rights are waived entirely . . . .” (Aguilar v. Lerner, supra, 32 Cal.4th 974, 988-989.)

Accordingly, because Miller waived her right as a client under Business and Professions Code section 6200 to arbitrate the fee dispute with her former attorneys, she cannot invoke section 6203, subdivision (a) of the same statute to avoid paying prejudgment interest now that a court has found in the attorneys’ favor.

IV. The Award of Attorney’s Fees.

Miller also challenges the trial court’s award of attorney’s fees to Fitzgerald pursuant to Civil Code section 1717, subdivision (a), which provides: “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract . . . shall be entitled to reasonable attorney’s fees in addition to other costs.”

In making her challenge, Miller does not dispute that, under the August 2003 and March 2004 agreements, Fitzgerald was entitled to recover attorney’s fees and costs as the prevailing party in an action to enforce the agreements. Miller claims, however, the amount of the award was erroneous due to “the absence of evidence that the fees . . . were actually incurred or ever anticipated [by Fitzgerald].” Miller further claims that this purported error was worsened when the trial court amended its original fee award “pursuant to an ex parte request, without explanation or regard to the prejudice to Appellant or a finding that the error was clerical . . . .” Unfortunately, Miller again ignores the evidentiary record.

With respect to the amount of a fee award, such matter is generally left to the sound discretion of the trial court, and will not be disturbed on appeal absent an affirmative showing that the trial court’s exercise of discretion was “clearly wrong.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096; City of Monte Sereno v. Padgett (2007) 149 Cal.App.4th 1530, 1535.)

Here, the trial court awarded $51,520 in attorney’s fees and $5,749 in costs based on substantial evidence that Fitzgerald offered showing the amount of fees and costs it incurred litigating this matter. Such evidence was in the form of declarations from Kibel and from two of its outside counsel, Andrew Sclar and Cynthia Soliman of the law firm Ericksen, Arbuthnot, Kilduff, Day & Lindstrom, Inc. Those declarations attached as exhibits detailed invoices Fitzgerald received for the legal services performed on its behalf by outside counsel, which included, among other things, the filing of the complaint, conducting research and extensive discovery, and preparing for and participating in a 7-day bench trial. The trial court, in accepting the reasonableness and accuracy of those invoices, noted that the hourly rate of $160 charged by Fitzgerald’s attorneys was quite modest when compared to rates in similar matters. Based on this record, we see no reason to disturb the trial court’s award. (See PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095 [“[t]he experienced trial judge is the best judge of the value of professional services rendered in his court”].)

In so concluding, we note with respect to the trial court’s amendment of the original fee award that Miller misconstrues the record. As Fitzgerald explains, the trial court found on the record at the hearing on the motion for attorney’s fees and costs that Fitzgerald was entitled to $51,520 in fees and $5,749 in costs. When, however, the trial court issued its written order, it mistakenly awarded only $5,749 in fees, the amount of costs stated on the record. Once Fitzgerald notified the trial court of its error, the trial court issued the amended order that conformed to its earlier ruling from the bench. As such, there was no error, much less deception, in rendering the amended fee award, and any prejudice to Miller was not undue. The trial court’s decision thus stands.

In the conclusion section of her opening brief, Miller argues that the trial court improperly found “[she] was not entitled to a set-off for the work required to ameliorate the damage to her home [caused by the Ellises’s activities].” As this issue was not properly briefed, we decline to address it. (Cal. Rules of Court, rule 8.204, subd. (a) [“Each brief must: [¶] . . . State each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority; and [¶] . . . Support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears”]; Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1245 fn. 14 [argument waived where appellant fails to cogently present it to the appellate court with specific citations to the record]; McComber v. Wells (1999) 72 Cal.App.4th 512, 522 [“ ‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.’ [Citation.]”].)

DISPOSITION

The trial court’s judgment and award of attorney’s fees and costs are affirmed. Costs on appeal are awarded to Fitzgerald.

We concur: Pollak Acting P. J., Siggins J.


Summaries of

Fitzgerald Abbott & Beardsley LLP v. Miller

California Court of Appeals, First District, Third Division
Jul 31, 2008
No. A118762 (Cal. Ct. App. Jul. 31, 2008)
Case details for

Fitzgerald Abbott & Beardsley LLP v. Miller

Case Details

Full title:FITZGERALD ABBOTT & BEARDSLEY LLP, Plaintiff and Respondent, v. MICHELLE…

Court:California Court of Appeals, First District, Third Division

Date published: Jul 31, 2008

Citations

No. A118762 (Cal. Ct. App. Jul. 31, 2008)