Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 02CC07235, Robert J. Moss, Judge. Motion to augment record. Judgment affirmed. Motion denied.
Skanadore Reisdorph Law Offices and Deborah S. Reisdorph for Plaintiffs and Appellants.
Law Offices of Federico C. Sayre and Kent M. Henderson for Claimant and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
Plaintiffs Mitchell Joelson and Susan Joelson appeal from a judgment awarding $70,942.22 to the Law Offices of Federico C. Sayre (claimant). They contend:
(1) The superior court lacked jurisdiction to determine the validity and amount of the attorney lien for claimant’s representation of plaintiffs in this action; (2) the evidence fails to support the amount of the fee award; and (3) the unclean hands doctrine precludes claimant’s recovery. Since plaintiffs stipulated to and fully participated in the hearing on the attorney lien and, on appeal, fail to either adequately summarize the evidence presented at that hearing or show in what manner it is legally insufficient to support the trial court’s decision, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs retained claimant to represent them in this action, which sought damages for mold infestation in their home. The retainer agreement authorized claimant to receive 40 percent of any recovery obtained in the matter and gave claimant a lien on all funds received in the action for payment of the fee and its advancement of costs. The agreement also contained a clause granting claimant a special power of attorney “to execute all documents on behalf of [plaintiffs] to effect conclusion of this matter including, . . . checks[] and drafts . . . .”
In late 2003, plaintiffs executed a 40 percent contingency fee retainer agreement with attorney Jeffrey Bogert. The reason for retaining Bogert was a matter of dispute. Plaintiff Mitchell Joelson testified Bogert “was associated with [claimant’s principal] Mr. Sayre, who at all times was lead counsel.” Federico Sayre testified his firm “was fired,” but after plaintiffs retained Bogert, they acquiesced in Bogert’s proposal to bring claimant back into the case for purposes of trial and to assist in advancing costs. Claimant and Bogert agreed to divide the 40 percent contingency fee on a 60/40 basis. Subsequently, plaintiffs fired Bogert, leaving claimant as their only attorney.
While represented by claimant, plaintiffs settled with some of the defendants, including a $75,000 settlement with Irvine Painting. Sayre testified he signed the Irvine Painting settlement check on behalf of plaintiffs, and used $45,000 to reimburse claimant for its advancement of costs and the remaining $30,000 to pay attorney fees to both claimant and Bogert. Sayre testified he relied on his firm’s retainer agreement as authority for signing the check for plaintiffs. He also claimed he sent plaintiffs a letter informing them of the settlement’s receipt and disbursement and their right to dispute it. They never responded to the letter.
In September 2006, plaintiffs terminated claimant. It then filed the attorney lien. Shortly before this termination, Sayre negotiated an agreement to settle with one group of defendants for $75,000 and obtained settlement offers from the remaining defendants totaling $124,999.98. After terminating claimant, plaintiffs agreed to settle with the latter group for $125,000.
The parties stipulated the trial court could conduct a hearing to resolve the lien dispute. Before the hearing, plaintiffs filed a motion in limine challenging the validity of claimant’s retainer agreement and the amount of the fee sought, plus raising the unclean hands doctrine. On the first day of the hearing, the court responded to it stating: “I did look at your motion. I read the brief, and I understand your position, but motions in limine are typically brought in jury trials . . . . [¶] We don’t have a jury here . . . . [¶] . . . [¶] So my inclination is . . . to hear all of the evidence and then make my mind up.”
After taking evidence, the court asked each party’s attorney to “be specific” in describing “the kind of . . . ruling you want this court to make . . . .” Plaintiffs’ counsel argued the court should find “there is no contingency agreement[,] . . . the matter must be quantum meruit,” and because of claimant’s improper actions it is “not entitled to any attorney’s fees at all . . . .”
The court subsequently issued a minute order ruling in claimant’s favor. It acknowledged plaintiffs’ contention that, due to “gross misconduct and malpractice in handling their claims,” claimant “should receive nothing . . . .” But the court found plaintiff Mitchell Joelson, the only witness plaintiffs called, was “not competent to say whether Sayre’s conduct was proper or not,” or to testify concerning the “value of [the] case . . . .” It noted “ no expert in the handling of mold cases was called to testify that attorney Sayre fell below the standard of care,” nor was there expert testimony “to prove that the claims of plaintiffs were worth more” than what they recovered in the lawsuit. As for plaintiffs’ right to “defeat [the attorney lien] claim by proving malfeasance on [claimant’s] part,” the court also found “they have failed to do that.” Thus, because of “the paucity of evidence offered to support plaintiffs’ position,” and claimant’s “prima facie showing that [it] is entitled to the balance of fees and costs claimed” (italics omitted), the court awarded claimant the entire amount sought.
DISCUSSION
1. Jurisdiction
Plaintiffs challenge the trial court’s jurisdiction to rule on the merits of the attorney lien, contending claimant “was not a party to the present action” and “the amount and validity of its attorney lien . . . was disputed . . . .” Consequently, claimant had “to bring an independent action to establish the existence and amount of [the] lien and to enforce it.”
Given the nature of the jurisdictional defect, plaintiffs’ stipulation allowing the trial court to decide the attorney lien’s merits, and their full participation in the hearing, we conclude they are now estopped from challenging the decision on jurisdictional grounds. “An attorney, whether discharged without cause or with cause, is entitled to recover the reasonable value of services he has rendered until the time of his discharge. [Citation.]” (Bandy v. Mt. Diablo Unified Sch. Dist. (1976) 56 Cal.App.3d 230, 233.) In addition, “‘An attorney’s lien against the prospective recovery of a client upon his claim, to secure the payment of a contingent fee for services to be rendered in connection therewith, may be created by contract.’ [Citations.]” (Id. at p. 234.)
But generally, “A contractual lien must be enforced . . . in an independent action by the attorney against the client and the attorney has no right to intervene in the main action to which he is not a party. [Citations.]” (Bandy v. Mt. Diablo Unified Sch. Dist., supra, 56 Cal.App.3d at p. 234.) Thus, in the usual situation, “Any order or judgment granting the attorney fees made in the main action is in excess of the court’s jurisdiction and is void. [Citation.]” (Ibid.; see also Hendricks v. Superior Court (1961) 197 Cal.App.2d 586, 588-589 [“As [counsel] was not a party in the original action any order or judgment therein giving him attorney’s fees is in excess of jurisdiction” and “such an order or judgment . . . is void”].)
However, the trial court clearly had subject matter jurisdiction to decide these issues since a separate action on the lien claim would be filed in that forum. The court also had jurisdiction over the parties because plaintiffs filed the underlying lawsuit, claimant filed the attorney lien, and both parties voluntarily participated in the hearing.
More importantly, the mere fact the trial court acted in excess of its jurisdiction does not require a reversal of the judgment. “‘[I]n its ordinary usage the phrase “lack of jurisdiction”’” applies not only to “‘an entire absence of power to hear or determine the case,’” but also “‘to a case where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no “jurisdiction” (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.’ [Citation.]” (People v. National Automobile & Casualty Ins. Co. (2000) 82 Cal.App.4th 120, 125.) While “subject matter jurisdiction cannot be conferred by consent, waiver, or estoppel [citation],” if “‘the court has jurisdiction of the subject, a party who seeks or consents to action beyond the court’s power as defined by statute or decisional rule may be estopped to complain of the ensuing action in excess of jurisdiction.’ [Citation.] ‘A litigant who has stipulated to a procedure in excess of jurisdiction may be estopped to question it when “[t]o hold otherwise would permit the parties to trifle with the courts.”’ [Citations.]” (Id. at pp. 125-126.)
In Law Offices of Stanley J. Bell v. Shine, Browne & Diamond (1995) 36 Cal.App.4th 1011, the appellate court applied this estoppel principle to uphold an order denying recovery on a discharged law firm’s attorney lien entered in the action in which the firm had rendered its services. After citing the firm’s actions, which included twice filing an attorney lien in the underlying lawsuit, representing to the court that it never waived the lien, and making a general appearance at the hearing on the validity of lien, even though it argued the court lacked jurisdiction to hear the matter, the Court of Appeal concluded “these actions, considered together, estop Bell from now contesting the . . . court’s jurisdiction to act as it did.” (Id. at p. 1023.)
This appeal presents an even clearer example of estoppel. The trial court’s minute order declares “[p]laintiffs . . . stipulated with lien holder . . . that the court could resolve the dispute . . . regarding [claimant’s] lien for attorney fees,” and the parties also “agreed that, after a hearing on the issue, the court could render judgment in favor of the lien holder and against plaintiffs should the court determine that any amounts were owed . . . .” Before the hearing, plaintiffs filed a motion in limine challenging claimant’s right to recover its fees on the merits. During the hearing, their attorney repeated the same arguments and never once suggested the court lacked authority to hear or decide the matter. Contrary to plaintiffs’ assertion, the mere fact they objected to the amount of the lien did not require the court to terminate the hearing. Thus, plaintiffs waived their right to object to the trial court’s exercise of jurisdiction over the validity and amount of claimant’s attorney lien.
2. Sufficiency of the Evidence
Alternatively, plaintiffs argue the trial court erred by awarding claimant the entire amount of its fee request.
This contention necessitates a review of the appellate record and, given plaintiffs’ one-sided and frequently inaccurate summary of the evidence, we conclude they have waived the argument. “‘It is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact.’ [Citations.]” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Thus, “‘When a finding of fact is attacked on the ground that there is not any 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.]” (Ibid.)
Since an “‘appellate court is not required to search the record on its own seeking error’” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246), a party contending the evidence fails to support the trial court’s decision, must “‘set forth in their brief all the material evidence on the point and not merely their own evidence’” (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881). A party’s “attack on the evidence without a fair statement of the evidence is entitled to no consideration when it is apparent that a substantial amount of evidence was received on behalf of the respondent. [Citation.]” (Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1246.) Thus, when an opening brief fails to either summarize all of the material evidence or support its evidentiary claims with accurate record citations, the appellant waives its right to contend the trial court’s ruling is not supported by the record. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116.) Plaintiffs’ failure to comply with the foregoing rules bars their attack on the amount of the award.
Even on the merits, their contention falters. “An experienced trial judge is best qualified to decide the value of an attorney’s services in a given matter . . . ” (Padilla v. McClellan (2001) 93 Cal.App.4th 1100, 1107), and thus “[t]he amount of attorney fees to be awarded is within the court’s sound discretion . . . .” (Ibid.) “[O]n appeal we will not reverse that decision unless it is clearly wrong. [Citation.]” (Ibid.)
Plaintiffs complain the judgment “included the entire amount of attorney fees . . . of the last two settlements, rather than the agreed [60/40] split between the attorneys . . .,” and claimant “failed to present any evidence of the time spent on the case . . . .” First, claimant had an independent basis to seek recovery against plaintiffs based on its own previous contingency fee agreement with them. (See Strong v. Beydoun (Sept. 19, 2008, G039758) ___ Cal.App.4th ___, ___ [2008 WL 4277310, p. 3].) Second, claimant prepared a damage summary, described in the record as exhibit 1, and presented it to the court. The trial court’s minute order states the amount sought in exhibit 1 constitutes only 60 percent of the 40 percent contingency fee agreed to between claimant and Bogert. Claimant did not introduce exhibit 1, but Sayre testified at length on its contents and the court noted “plaintiffs do not quarrel with Sayre’s calculations.”
Nor did the trial court err by awarding claimant the entire amount of its unpaid fees. A discharged attorney is entitled to only the reasonable value of his or her services, but “[t]o the extent that such discharge occurs ‘on the courthouse steps,’ where the client executes a settlement obtained after much work by the attorney, the factors involved in a determination of reasonableness would certainly justify a finding that the entire fee was the reasonable value of the attorney’s services. [Citations.]” (Fracasse v. Brent (1972) 6 Cal.3d 784, 791.) Before claimant’s final discharge, it had negotiated a settlement with or received settlement offers from the remaining defendants for the entire sums plaintiffs ultimately collected. Thus, the trial court could reasonably conclude claimant should recover its entire fee.
3. Unclean Hands
Citing claimant’s retention of the $75,000 Irvine Painting settlement check, plaintiffs contend it should have been denied any recovery under the unclean hands doctrine.
This “‘doctrine demands that a plaintiff act fairly in the matter for which he seeks a remedy. He must come into court with clean hands, and keep them clean, or he will be denied relief, regardless of the merits of his claim.’ [Citation.] The doctrine . . . requires unconscionable, bad faith, or inequitable conduct by the plaintiff in connection with the matter in controversy. [Citations.]” (Fladeboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 56.) “As a general rule, the application of the doctrine of unclean hands is primarily a question of fact. [Citations.]” (Insurance Co. of North America v. Liberty Mutual Ins. Co. (1982) 128 Cal.App.3d 297, 306-307; see also Bennett v. Lew (1984) 151 Cal.App.3d 1177, 1187.)
Again, we find plaintiffs failed to preserve the issue for appellate review. They assert claimant “failed to account for the $75,000,” citing only to Joelson’s trial testimony concerning the Irvine Painting settlement check. But Sayre testified on this point. He cited the clause of the parties’ retainer agreement authorizing him to sign documents on plaintiffs’ behalf. He also sent plaintiffs a letter disclosing receipt of the settlement check, claimant’s disbursement of the funds, and notifying them of their “right to see any and all source documents for the costs . . . incurred.” Contrary to the inference contained in the opening brief, Joelson even admitted receiving this letter, asserting only that he was never asked to approve of the disbursement of the settlement funds. The trial court apparently found Sayre’s testimony more credible and we lack any basis to disagree with its finding.
Therefore, we conclude plaintiffs have failed to establish the trial court erred by rejecting their unclean hands defense.
DISPOSITION
The judgment is affirmed. Respondent’s motion to augment the record on appeal is denied. Respondent shall recover its costs on appeal.
WE CONCUR:
O’LEARY, J., ARONSON, J.