Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Rita Miller, Judge. Los Angeles County Super. Ct. No. BC266229
Law Offices of Thomas J. Weiss, Thomas J. Weiss, Hyrum K. Hung; Mink Law Firm, Lyle R. Mink for Plaintiffs and Respondents.
Law Offices of Dan Maccabee; Law Offices of Peter A. Schwartz, Dan S. Maccabee for Defendant and Appellant.
ARMSTRONG, J.
This is another appeal in the Mink-Maccabee saga. The familiar facts are these: both appellant Dan Maccabee and respondent Lyle Mink are lawyers. Mink for a time represented Maccabee, and later sued him for fees. Maccabee cross-complained, contending that he had referred a case to Mink and that Mink owed him a referral fee. The complaint was resolved with a judgment for Mink in the amount of $9,718, which we affirmed in August 2004, in an unpublished portion of our opinion. (Mink v. Maccabee (2004) 121 Cal.App.4th 835.) The cross-complaint was resolved with a judgment in favor of Maccabee in the amount of $87,500, which we affirmed in July 2007.
We now consider trial court rulings on Maccabee's motion for prejudgment interest and his costs bill, and affirm those rulings.
Prejudgment Interest
This concerns the cross-complaint. The facts are these. In October 1999, Maccabee referred a case to Mink. The client's name was Scott Aden. The case settled in September 2000 and in October 2001, Mink received $400,000 in compensation.
Maccabee's cross-complaint against Mink was filed on February 19, 2002. He contended that he and Mink had agreed to a reasonable referral fee in the Aden case, and that Aden signed an acknowledgment and consent to the division of fees pursuant to Rule 2-200 of the California Rules of Professional Conduct (Rule 2-200) on or about February 15, 2002. The issue was tried to a jury, which found that Mink and Maccabee entered into an oral contract for Mink to pay a referral fee to Maccabee and that the fee payable "under the circumstances of this case," was $87,500.
After judgment was entered, Maccabee sought prejudgment interest from the date Mink received his fee from Aden, citing Civil Code section 3287, subdivisions (a) and (b). Under Civil Code section 3287, subdivision (a), "Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, . . ." Under subdivision (b), "Every person who is entitled under any judgment to receive damages based upon a cause of action in contract where the claim was unliquidated, may also recover interest thereon from a date prior to the entry of judgment as the court may, in its discretion, fix, but in no event earlier than the date the action was filed.
" The trial court denied the motion, finding that it was untimely, citing North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824, which held that "requests for prejudgment interest under section 3287 by a successful plaintiff must be made by way of motion prior to entry of judgment, or the request must be made in the form of a motion for new trial no later than the time allowed for filing such a motion." (Id. at p. 831.) The trial court next ruled that Maccabee was not entitled to interest under Civil Code section 3287, subdivision (a) because the damages were not certain or capable of being made certain. As to the Civil Code section 3287, subdivision (b), the court ruled that, "Even if the court were inclined to award discretionary prejudgment interest . . . it would be unable to do so" because the motion was untimely under North Oakland Medical Clinic v. Rogers, supra.
On appeal, Maccabee contends that his motion was timely, essentially contending that North Oakland Medical Clinic, supra, was wrongly decided. He also contends that the damages were "capable of being made certain" and, as to Civil Code section 3287, subdivision (b), that the matter must be remanded to the trial court so that the court may exercise its discretion. Because we find that, as Mink argues, Rule 2-200 prohibited Mink from paying any referral fee until the litigation concluded, we need not and do not consider any of those contentions.
Under Rule 2-200, "A member shall not divide a fee . . . with a lawyer who is not a partner of, associate of, or shareholder with the member unless: (1) The client has consented in writing thereto after a full disclosure has been made in writing that a division of fees will be made and the terms of such division." The rule "requires that the client's written consent be obtained prior to any division of fees." (Mink v. Maccabee, supra, 121 Cal.App.4th at p. 838.) The "right to recover" was thus not "vested in" Maccabee until Mink received the client consent.
At trial of the cross-complaint, Maccabee introduced four different consent and disclosure forms, signed by Aden on various dates in 2002, 2005, and 2006. Only the last form discloses a referral fee of $87,500, the amount the jury found, and it is only in that form that Aden consented to that referral fee. That consent was signed on May 26, 2006, after judgment was entered in Maccabee's favor. That means that Maccabee was not entitled to prejudgment interest, because Mink could not ethically have paid him prior to the judgment. For this reason, even if the motion was timely made, we would not remand to allow the trial court to exercise its discretion on discretionary prejudgment interest.
Finally, Maccabee contends that his motion for prejudgment interest was a de facto motion for new trial based on inadequate damages, and should have been considered as such, and granted. As appellant pointed out at oral argument (Maccabee raised this point for the first time in his reply brief), a motion for new trial is a creature of statute (Code Civ. Proc., § 657) and cannot in fairness to the other party be deemed a motion for prejudgment interest. As appellant also pointed out, a new trial based on inadequate damages does not lie where the item of damages was never tried to begin with. Maccabee did not seek prejudgment interest at trial, and could not do so on motion for new trial.
Costs
After trial on the cross-complaint, Maccabee moved for costs incurred in connection with both the complaint and cross-complaint. Mink moved to tax costs, a pleading which is not in our record. The court disallowed all items related solely to the complaint, which had been tried at an earlier time, before another judge. As to costs incurred in connection with the cross-complaint, the court granted the motion in part. On appeal, Maccabee seeks "the first half of jury trial fees, court reporters fees, first deposition costs, and other costs." We take this to mean that he is seeking costs incurred in connection with the complaint.
Maccabee's argument is that he obtained a net monetary recovery when the judgments on the complaint and cross-complaint are considered together, and that he was thus the prevailing party on the entire action under Code of Civil Procedure section 1032, and was entitled to all his costs.
We see no ground for reversal. It is apparent that the parties treated the complaint and cross-complaint as different actions, and that costs relating to the complaint should have been sought in connection with that trial, before the judge who tried that case, and who entered that judgment.
Moreover, Maccabee has not established trial court error because he has not provided U.S. with the relevant record. He has not provided U.S. with the complaint, or indeed any document relating to trial of the complaint. Although judgment was separately entered on the complaint, he has not provided U.S. with that judgment, or any legal authority which would support his contention that costs relating to that judgment could or should be awarded in this action.
Disposition
The orders appealed from are affirmed. Mink to recover costs on appeal.
I concur: TURNER, P. J.
MOSK, J., Concurring
I concur.
The request for prejudgment interest was untimely. (North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824.) There is an inadequate record to deal with the claim for costs.