Opinion
B323416
09-26-2023
BRIAN LEUNG, Plaintiff and Appellant, v. ALIREZA ALIVANDIVAFA Defendant and Respondent.
Brian Leung, in pro. per. for Plaintiff and Appellant. Law Offices of Tilak Gupta and Tilak Gupta for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. SC129356 Mark A. Young, Judge. Affirmed.
Brian Leung, in pro. per. for Plaintiff and Appellant.
Law Offices of Tilak Gupta and Tilak Gupta for Defendant and Respondent.
CHAVEZ, J.
Plaintiff and appellant Brian Leung (appellant) appeals from the order awarding attorney's fees of $98,250 to defendant and respondent Alireza Alivandivafa (respondent). We affirm the trial court's orders.
Appellant also challenges the order on his motion to tax costs, arguing the trial court should have stricken $5,577.55 from respondent's memorandum of costs. However, a review of the order reveals a misunderstanding of the court's ruling: the specified amount was, in fact, stricken. Since no error has been identified, we affirm.
BACKGROUND
Appellant sued respondent, his former attorney, who previously represented him in an employment matter. The underlying litigation was settled and respondent received $181,761.71 as a contingent fee from the $500,000 settlement pursuant to the terms of their retainer agreement. Appellant thereafter filed this action claiming he is entitled to receive the entire $500,000 settlement amount, alleging the contingency fee agreement was not valid.
Following a bench trial the court ruled in favor of respondent and against appellant on all claims. Judgment was entered on January 3, 2022.
Respondent filed a motion for attorney's fees, arguing the retainer agreement included a provision allowing such in this action. Appellant opposed respondent's motion on several grounds, including timeliness, improper electronic service, inapplicability of the retainer agreement, excessive hourly rate, and unnecessary charges.
The court rejected nearly all these arguments, finding the motion to be timely because respondent had not been served with the entry of judgment and, thus, had 180 days from the entry of judgment on January 3, 2022, to file a motion for attorney's fees. The court also found electronic service was proper because appellant had not rescinded the agreement made by his prior counsel to accept service electronically and the retainer agreement required an award of attorney's fees as "[t]here is no reasonable dispute that as the prevailing party, [respondent] is entitled to their reasonable attorneys' fees." While not reducing the number of hours billed, the court did agree the $600 hourly rate was excessive, and reduced it to $500 based on the court's experience in the matter. $98,250 was then awarded to respondent as the reasonable amount of attorney's fee for the action.
Respondent also filed a memorandum of costs as the prevailing party. Appellant sought to tax all costs from this memorandum, claiming they were unnecessary or excessive. While the court taxed the $5,577.55 charge for court reporter fees, it denied the rest of the motion.
Appellant filed a timely notice of appeal.
CONTENTIONS ON APPEAL
Appellant claims the respondent's motion was untimely, improperly served, that the retainer agreement does not permit an award of attorney's fees, and the fee amounts are both unnecessary and excessive.
In addition, appellant contends the court should have taxed the amount for transcripts, since they were not ordered by the court. However, as the court did, in fact, tax this amount, this argument identifies no error.
DISCUSSION
I. Governing law and standard of review
The trial court's decisions on the timeliness and the service of the motion turn on disputed issues of fact. These express and implied factual determinations are not disturbed on appeal if supported by substantial evidence. (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 582.) This standard of review is highly deferential and has three pillars. (Ibid.) "First, we accept all evidence supporting the trial court's order. Second, we completely disregard contrary evidence. Third, we draw all reasonable inferences to affirm the trial court." (Id. at p. 581.)
Regarding the decision to award attorney's fees, we review de novo the trial court's determination of the legal basis for an award of attorney fees. (Butler-Rupp v. Lourdeaux (2007) 154 Cal.App.4th 918, 923.) The trial court's determination of what constitutes reasonable attorney fees for purposes of such an award is reviewed under the abuse of discretion standard. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096 (PLCM Group).)
II. Motion for attorney's fees was timely filed
California Rule of Court, rule 3.1702(b)(1), provides that a notice of motion to claim attorney's fees must be filed "within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case ...." Specifically, rule 8.104(a)(1), requires a notice of appeal to be filed within 60 days of service of notice of entry of judgment, or 180 days after entry of judgment. Rule 8.108 concerns extension periods and is not relevant here.
Further rule references are to the California Rules of Court.
Here, judgment was entered on January 3, 2022. The trial court observed that the record did not show when the entry of judgment was served on respondent. Furthermore, respondent provided evidence that he became aware of the entry of judgment on January 18, 2022, when his attorney received an email containing a link to court documents, including the judgment. Based on this substantial evidence, the court determined the 180-day period applied and, as respondent's motion was filed on March 21, 2022, it was filed within 180 days from the entry of judgment on January 3, 2022, and was thus untimely.
III. Respondent's motion was properly served
Code of Civil Procedure section 1010.6, subdivision (c)(1) permits an unrepresented party to consent to receive electronic service. Additionally, subdivision (c)(4) of the same section states: "A person who has provided express consent to accept service electronically may withdraw consent at any time by completing and filing with the court the appropriate Judicial Council form."
Here, respondent used electronic service. He showed that appellant, via his previous counsel, had entered into a formal agreement for electronic service and this agreement had not been rescinded. The court found that since appellant had not withdrawn his consent to electronic service, respondent's use of electronic service was proper.
Thus, the court had substantial evidence to support its finding that respondent's motion was properly served.
IV. Respondent was entitled to attorney's fees under the contract
Civil Code section 1717, subdivision (a) states in relevant part: "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, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees and in addition to other costs."
" 'California courts construe the term "on a contract" liberally.'" [Citation.] The phrase 'action on a contract' includes not only a traditional action for damages for breach of a contract containing an attorney fees clause [citation], but also any other action that 'involves' a contract under which one of the parties would be entitled to recover attorney fees if it prevails in the action." (Eden Township Healthcare Dist. v. Eden Medical Center (2013) 220 Cal.App.4th 418, 426.)
Here respondent argued section H of the retainer agreement entitled him to recover attorney fees:
"ATTORNEY has a lien for his fees and legal costs upon the CASE, any judgment obtained thereon, or the proceeds of any settlement or recovery. ATTORNEY will also be eligible for fees and legal costs associated with recovery of any and all monies owed by CLIENT."
In his complaint, appellant claimed he was entitled to recover the contingency fee paid to respondent on the theory that the agreement was invalid. Since this case involves the respondent's right to obtain the contingency fee under the retainer agreement, it is an "action on the contract", i.e., the retainer agreement, and Civil Code section 1717 allows respondent to recover the additional attorney's fees he incurred to defend his right to receive the contingency fee.
Therefore the trial court correctly found respondent was entitled to recover his attorney's fees because the retainer agreement authorizes an award of attorneys' fees "associated with recovery of any and all monies owed by CLIENT."
V. The trial court did not abuse its discretion by awarding attorney's fees of $98,250 to respondent
A trial court has wide latitude in determining the amount of attorney's fees to award. (PLCM Group, supra, 22 Cal.4th at p. 1095.) An experienced trial judge is in the best position to assess the value of professional services rendered in her court. Therefore, the trial court's decision on a request for reasonable attorney fees will not be disturbed unless there has been a manifest abuse of discretion. (Ibid.)
The fee setting inquiry in California ordinarily begins with the" 'lodestar,'" i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (PLCM Group, supra, 22 Cal.4th at p. 1095.) No specific findings reflecting the court's calculations is required. (Rebney v. Wells Fargo Bank (1991) 232 Cal.App.3d 1344, 1349.) "[T]he record need only show that attorney fees were awarded according to the 'lodestar' or 'touchstone' approach." (Ibid.) On appeal we infer all findings in favor of the prevailing parties. (Ibid.)
In his motion, respondent presented billing records and his counsel's declaration to establish counsel billed 196.50 hours and requested an hourly rate of $600. The court found no basis to reduce the number of hours, but based on its experience, reduced the hourly rate to $500 per hour.
We find the court had sufficient information to use the lodestar method. The court had billing records and the declaration of respondent's attorney. The court knew the subject matter of the case, the positions of the parties, and had resolved the underlying case after a bench trial. The court set the billable rate based on its experience with the matter. This is sufficient for calculation of the basic lodestar rate. Under the circumstances, we find no abuse of discretion in the trial court's decision to award respondent the entire amount of $98,250.
VI. No error was shown by the striking of $5,577.55 from respondent's memorandum of costs
Respondent's memorandum of costs included $5,577.55 in item 9 for court-ordered transcripts. The court granted appellant's request to tax this amount because the court did not order a court reporter be provided by the parties.
Appellant argued, "the item must be stricken as unauthorized." Since the amount was taxed, it was "stricken" and appellant is not required to pay it. Appellant shows no reversible error with the court's decision.
DISPOSITION
The judgment is affirmed. Respondent is awarded his costs of appeal.
We concur: LUI, P. J., HOFFSTADT, J.