Opinion
B193094
5-14-2007
McMILLAN & TKACH, Plaintiff and Appellant, v. CLIFF GOODE, Defendant and Respondent.
Law Offices of Gregory J. Khougaz and Gregory J. Khougaz for Plaintiff and Appellant. E. Samuel Johnson, III, for Defendant and Respondent.
NOT TO BE PUBLISHED
The law firm of McMillan & Tkach, LLP, represented Cliff Goode in litigation titled Quaney vs. Goode, and subsequently sued Goode for breach of contract and common counts, seeking $ 14,679 in attorney fees allegedly owed for the defense of Quaney vs. Goode.
Goode cross-complained for legal malpractice, contending that that malpractice occurred in McMillan & Tkachs representation of him in a different action, Wilbur Curtis Company vs. Servtech Plastics. The cross-complaint was dismissed after McMillan & Tkachs motion for summary judgment was granted, a ruling which was not appealed. McMillan & Tkachs motion for summary judgment on the complaint was denied.
Court trial was held on McMillan & Tkachs complaint. Judgment was entered in favor of Goode. Goodes motion for fees under Civil Code section 1717 was denied.
McMillan & Tkach appeals from the judgment, and Goode appeals from the denial of his motion for fees. On both appeals, we affirm.
McMillan & Tkachs Appeal
Goodes request that we take judicial notice of documents relating to other litigation in which McMillan & Tkach is denied. The documents are not relevant to any issue on appeal.
McMillan & Tkach contends the trial court erred by imposing the wrong legal standard. As it reads the record, the court ruled that a suit for fees may not succeed unless the plaintiff produces documentary evidence. We do not so read the record. In our view, the court simply considered the evidence presented, which consisted of oral testimony and documents, and found that McMillan & Tkach had not proved its case. There was no error.
We begin with the background: during discovery, Goode sought to discover, inter alia, McMillan & Tkachs file and billing records on the Quaney case. McMillan & Tkach did not produce the records, responding instead that the documents could not be located.
At trial, John Tkach testified for McMillan & Tkach. He briefly (a half-page of reporters transcript) described the Quaney litigation and authenticated the monthly bills from the beginning of the Quaney litigation, in February 2001, to its conclusion in 2003. The bills list the hours spent on specified tasks (for instance, "prepare request for admissions" for three-quarters of an hour) and the fees for that task, the costs advanced, payments by Goode, and the total due. The final bill, from April 2003, indicates that $14,697 is due and owing. Tkach testified that the bills accurately reflected the tasks accomplished, time spent, costs incurred, and payments.
The court denied McMillan & Tkachs summary judgment partly for that reason, finding that "There is a triable issue of fact whether the actual or reasonable value of services rendered to Mr. Goode was $42,982.22 and whether the billing statements submitted by plaintiff reflect an accurate account of [] the fees, expenses, and costs. . . . The opposition points out that in response to document demands, plaintiff stated that it was unable to locate defendants underlying client file or the billing records related to that file. The court finds that it cannot grant summary judgment where the moving partys motion is based on billing statements it has refused to produce to the opposing side during the course of discovery despite repeated demands."
In his defense, Goode testified that he had received the bill for $14,697 in fees, but did not pay it because he had already paid all sums billed.
The court entered judgment for Goode, finding that "In support of his claim for an additional $14,679.24 in attorney fees plaintiff has only his billing records. The defendant denies that he owes additional money and points out that he has paid without objection $21,408.62. . . . Since plaintiff has the burden of proof and there exists no documentation to support his claim there is a failure of proof. A review of the [Quaney vs. Goode case file] is insufficient to supply corroboration of plaintiffs position. Accordingly, judgment is entered for the defendant."
McMillan & Tkach moved for new trial on the ground advanced here, that Tkachs testimony sufficed to support the claim, and that it was not required to provide documentation. The court denied the motion, finding that "the courts decision is supported by the facts and is not contrary to law."
We agree with McMillan & Tkach that there is no legal requirement that damages in a breach of contract suit such as this can be proved only with documents, and that oral testimony can never suffice. However, we do not see that the trial court ruled to the contrary. Instead, the court considered the exhibits and the testimony and found itself unpersuaded. That was within the courts power as trier of fact. We note, for example, that Tkach testified that he did not recall the substance of the complaint in the Quaney case, but also testified that each item on each bill accurately reflected the tasks accomplished and time spent. The court was entitled to disbelieve Tkach, and to find that the plaintiff did not prove an element of its case, that is, damages.
Goodes Appeal
After trial, Goode moved for attorney fees incurred in the defense of this case, citing a fees provision in his contract with McMillan & Tkach. His motion was accompanied by an invoice which listed in general terms the tasks accomplished and the fees billed for that task. He sought a total of $29,776 in fees and costs. The trial court denied the motion, ruling that "Motion to determine prevailing party is denied. Defendant Goode has failed to establish that the fees were incurred in defending the complaint as opposed to prosecuting the cross-complaint."
The provision reads "Collection expenses and/or legal fees incurred in the collection of overdue balances (including fees based on law clerk and paralegal time) will be paid by the delinquent client."
On appeal, Goode again contends that he was the prevailing party in the breach of contact suit, and that under the contract and Civil Code section 1717, was entitled to fees incurred in defense of the suit. He argues that documents were prepared and court appearances made in defense of that suit, and cites the record to that effect.
Those citations do not establish that the trial court erred. The amount to be awarded as attorneys fees is left to the sound discretion of the trial court, and the courts ruling will not be disturbed on review unless it is clearly wrong. (Vella v. Hudgins (1984) 151 Cal.App.3d 515, 522.) Here, the invoice Goode submitted with his motion includes tasks, such as a response to a summary judgment motion, which appear to relate to the cross-complaint, not the complaint, something the trial court would have understood very well. On his fees motion, Goode had the burden of proving the amount of recoverable fees. His failure to do so means that there was no error in the denial of fees.
Disposition
The judgment is affirmed, as is the denial of Goodes motion for attorney fees. Each party to bear its own costs on the appeal and cross-appeal.
We concur:
TURNER, P. J.
KRIEGLER, J.