Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 05CC04795, James P. Gray, Judge.
Law Offices of Stephen R. Kilstofte, Stephen R. Kilstofte; and Doreen S. Houx for Plaintiff and Appellant.
Law Offices of John M. Kremer, John M. Kremer; Law Offices of Craig Alan Klein and Craig Alan Klein for Defendant and Respondent.
OPINION
SILLS, P. J.
I. INTRODUCTION
A lawyer sued his client for unpaid fees, and prevailed before the jury. However, there was testimony from the lawyer’s former billing clerk that he specifically directed her to change the bills so that work performed by paralegals would be billed as done by him. When she objected, he told her, “just do it.”
The clerk also testified that the attorney ordered her to “white out” the initials of paralegals who worked on the case and substitute his own. In a few cases, however, the white outs were incomplete and one could see surviving flecks from the previous (correct) set of initials on the billing report.
Then there was the fact that one only needed to compare pages on some early (2002) bills with the same work restated on later (2004) bills to see that work initially billed as done by paralegals was later billed as work done by an attorney.
And a few other things: The lawyer billed his client for work that in all likelihood would have been done at his office (“Finish drafting motion in limine and proposed order and declaration.” “Trial preparation, Exhibits.” “Email printouts.”) at attorney rates for the period June 12 through 14, 2004. (The lawyer employed paralegals, but he was the only lawyer in his office.) But he tripped himself up by also filing a “notice of unavailability,” telling a trial court that he would be on a prepaid out-of-state vacation at the time.
And also there was the matter of some minor settlements received in a case, for $2,500 and $5,000 respectively, which the attorney only credited his clients $1,500 and $3,000. (There was no contingency arrangement in his fee agreement.)
Despite this evidence, the lawyer prevailed in front of the jury on request to have a judgment entered against his client for the full amount of his bills.
It is tempting to speculate as to why the jury favored the attorney over the client. Indeed, there was some speculation on that point at oral argument. But such speculation was a mistake the trial judge made in Bigboy v. County of San Diego (1984) 154 Cal.App.3d 397, so we won’t repeat it here.
The trial judge, however, was of a different opinion, and granted the defense’s motion for a new trial, citing, among other things, the evidence that the plaintiff attorney “committed criminal acts by intentionally overbilling defendant for his legal services.”
In reviewing the trial court’s ruling on the new trial motion, the appellate court must accept the trial court’s credibility determinations if supported by substantial evidence. (E.g., Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1232.) The billing clerk’s evidence provided more than ample support for the trial judge’s decision to grant a new trial, and accordingly we affirm the order. We stress, however, that in affirming the new trial order, we do not necessarily put the appellate court’s imprimatur on testimony that the trial court found credible, but the jury (impliedly) didn’t. Under established rules of appellate review, it is simply enough that the trial judge had substantial evidence on which to believe it.
II. FACTS
On May 14, 2002, attorney Philip Putman was engaged by Hans Schroeder in regard to Schroeder v. Parman, in San Diego Superior Court, and there was a written retainer agreement signed that date. Putman was “later” -- it is significant that Putman’s opening brief and his own complaint do not specify the exact date and he does not include any copy of a written retainer agreement in his appellant’s appendix -- retained by Schroeder to represent him in Schroeder v. Higa in Los Angeles Superior Court. (The first work undertaken by Putman in the Higa case for which Schroeder would be billed was for work on May 27, 2002.) The terms of the written retainer agreement in Parman called for Putman to be paid an hourly fee of $300 per hour for attorney work and $100 per hour for paralegal work, plus 100 percent of fees awarded in “the proceedings.”
A jury would later find that Putman and Schroeder “enter[ed] into a written contract for the performan of legal services in the matter of Schroeder v. Higa.” Putman’s position is apparently that Schroeder orally agreed to terms in the Higa case that would be identical to the terms in the Parman case, which is a tacit acknowledgment that there was no separate written retainer agreement for the Higa action.
Parman involved the assertion of Schroeder’s interest in certain real property. Higa involved the assertion of Schroeder’s claim that the general partner in a general partnership in which Schroeder had a interest was misappropriating partnership funds.
Higa came to trial first, in the summer of 2003, and resulted in a defense verdict unfavorable to Schroeder. The bill, as of July 2003 -- included more than $6100 in interest on the overdue balance -- came to almost $214,000. It appears that Schroeder made no attempt to pay the bill from the Higa case and Putman made no attempt to collect it. Attorney and client continued working on the Parman case, which was tried in early August 2004.
Parman went considerably better for Schroeder. The trial resulted in the appointment of a receiver over the property in question with instructions to sell the property and give Schroeder, essentially, 85 percent of the proceeds. Also, Schroeder was the recipient of an attorney fee award against his opponents in Parman in the amount of about $40,000. Then again, Schroeder’s bill for his services in the Parman matter amounted to about $250,000.
Putman states in his opening brief that the effect of the order was that $630,000 was awarded to Schroeder, but the record references for the statement are merely to the order itself, and do not address what the property was eventually sold for. Schroeder’s trial testimony and his respondent’s brief on appeal put the figure at about $577,000.
In the course of making his order, the trial judge in Parman was clear that he wasn’t all that impressed with the way that Putman had conducted the litigation. The Parman trial judge specifically agreed with the Parmans that Putman’s $250,000 bill was “not reasonable.” The Parman trial judge said he was “familiar with Mr. Putman’s pre-trial and trial activities” and found that they “were unproductive to Mr. Schroeder.”
By this time, though, Putman had been fired by Schroeder. To be specific, he was fired on the morning of the final accounting hearing in the Parman case, March 30, 2005. Schroeder then personally “went down to the court” in San Diego and made the termination known to the trial judge that day.
In this appeal, the parties spin the firing differently. For Putman, it was a naked attempt by Schroeder to cheat him out of earned fees. For Schroeder, he was “shocked” when presented with the bills for both the Higa and Parman matters ($214,000 and $250,000 respectively, for a grand total of $464,000).
Schroeder provides no record references to back up his “shocked-at-the-bills” story. The word “shocked” is taken from his brief.
In any event, Putman filed this action in Orange County Superior Court seeking about $461,000 (including interest) in unpaid legal fees. Part of the defense was, as recounted above, the testimony of Brianna Farber, who began working for Putman in 1999 in order to “straighten out” his client trust fund and billings. By 2000, Farber held the position of secretary, billing clerk and office manager, and it was she who processed the time slips that came in from the various employees of the office, including Putman himself. Farber testified that, in the wake of the successful Parman action and an upcoming attorney fee request to be presented to the court in that case: “I was told by Phil after the trial to change the billing rates on anything that could be construed as a paralegal having done it to his rate.” As noted above, the Parman retainer agreement provided for the client to be charged $100 an hour for paralegal time, but $300 an hour for attorney time.
Putman has included only the second amended complaint in the appellant’s appendix, filed June 30, 2006.
Which would have coincided with the time that Putman was having some problems with state bar disciplinary proceedings, all of which is accessible on the state bar website. That website states that Putman was the subject of prior disciplinary proceedings by the state bar in 2000 including a 90-day actual suspension, based upon a failure to “comply with probation conditions attached” to a prior “private reproval,” which required him to “submit quarterly probation reports.” The prior private reproval had been issued in 1995 as the result of a “failure to communicate with a client, perform legal services competently or return a client’s documents, as well as improperly sharing legal fees with a non-lawyer and improperly withdrawing from employment.” In another matter, the state bar judge found that Putman had “failed to comply with a court order or report sanctions” in a case where he had represented a husband in a divorce case and “brought a civil action against the wife’s attorney, accusing him of wrongs arising from the family law action,” the net effect of which was that he and his client were sanctioned $1,500, which “Putman never paid” or reported to the bar. The state bar judge “declined to credit Putman’s testimony that many of his difficulties were the fault of his former law partners” and further “rejected Putman’s argument that he delegated his compliance to others who did not follow through and that he was the victim of a conspiracy by other attorneys to ruin him.”
Farber felt that the request was “defrauding the court” and she “confronted” Putman about it. “Are you sure you want to do this because this paper is going to the court? This is getting attached to the cost memo and it’s going to the court. Are you sure you want to do this?”
Putman replied, “Just do it.”
In conjunction with the request to re-do the bills to make them reflect attorney rather than paralegal time, Farber was instructed to “white out” the paralegal’s initial on a printed report, and noted in her testimony that if one looked at the billings, one could detect various “specks” where the white out “didn’t catch a hundred percent of the initials.” So, on Exhibit 28, for various dates, the initials given were “PAP” and the time billed at $300 an hour instead of the paralegal who actually did the work.
The trial also turned up another billing discrepancy: The entries for June 12, 13, and 14, 2004, were for “Meeting with paralegal” regarding a judgment on the pleadings and an amended complaint and “etc.”, “[l]egal research and begin drafting motion in limine and proposed order with supporting declaration of PAP”; and “Trial preparation, Exhibits” and “Finish preparing answer to Parman’s cross-complaint,”
which were all entries consistent with paralegal work. Putman, however, typically did not begin drafting motions -- that’s why he employed paralegals. Even so, the entry was billed at the $300 an hour rate.
It also turned out that Putman was out of state during the period June 12 through 14. He filed a “notice of unavailability” with the court in the Parman action saying he would be gone on a prepaid vacation June 12 through June 18.
Putman acknowledged that there were “bunches” of “errors” in his billing statements, but flatly denied that he ever instructed Farber to increase amounts billed or white out initials in order to turn a paralegal’s work into lawyer’s work. He also testified that he reduced the amount of the bill from what it otherwise would have been -- around $400,000 ($392,000) -- to the around $249,000 he ultimately claimed in the litigation.
“Q. Now, Mr. Putman, you’re not disputing that there can be, and in fact are, errors in these statement compilations. Correct?
As noted, the jury sided with Putman. They (unanimously) found that a contract had been made for legal services in both the Parman and Higa matters, and awarded damages in the amounts of the respective bills for those matters.
Schroeder made a motion for, alternatively, judgment notwithstanding the verdict or new trial, based largely on the testimony of Farber, but also for a few other billing problems. In the Parman action, Putman had filed a second cross-complaint, resulting in Schroeder being exposed to an attorney fee motion for having filed a SLAPP suit. One needed only to compare the first page of a billing statement dated November 1, 2002 with the first page of a billing statement dated August 6, 2004 to see that there had been a fairly obvious change of entries from paralegal to attorney time. Also, Putman had received two minor settlements from the Parman litigation, consisting of $5,000 and $2,500, but only credited his client $3,000 and $1,500 for those settlement amounts.
Essentially, Putman’s opposition to the new trial motion was: Mistakes were made, but those mistakes were harmless because Putman cut his bill by about $180,000 anyway.
The trial judge denied the motion for judgment notwithstanding the verdict, but granted the new trial. The new trial order identified three reasons for granting the new trial, which we note he gave in reverse order of puissancy:
(1) Putman was estopped to deny that his attorney fees in the Parman matter had been reasonably fixed in that case at $40,000.
(2) The “billings submitted by plaintiff to defendant for services rendered were unreliable and without justification, if not fraudulent.” The judge gave these examples:
(a) reducing the credits received for the minor settlements;
(b) charging the client for motions the trial court had determined were frivolous;
(c) filing an improper lis pendens in the Parman case, which caused the client to have to pay $40,000 to settle a malicious prosecution cause of action;
(d) billing the client for time meeting and working with his staff at his Costa Mesa office when he was at his high school reunion in another state.
(3) And (to quote the exact words from the order) “[t]here is strong reason to believe based upon the evidence that plaintiff committed criminal acts by intentionally overbilling defendant for his legal services, and by plaintiff intentionally causing false billing information to be filed” in the Parman case pursuant to his attorney fee request. The court specifically noted that “Trial Exhibits 28 and 132 document the changing of these billing entries to show greater amounts of bills so that they could be presented to the court.”
Then, noting that “Egregious violations of ethical obligations by attorneys can bar attorneys completely from recovering any fees,” the trial judge decided that Putman’s ethical violations were “sufficiently serious and egregious to warrant at least a partial ban” of fees. This appeal followed.
Technically, the new trial order was granted subject to the condition (in law school, called “remittitur”) that Putman not elect to accept a judgment of $200,000. If he did, the condition would not attach and the new trial motion would not be granted. (See Code Civ. Proc., § 662.5.) Since Putman elected not to accept a $200,000 judgment, the order has taken effect.
III. DISCUSSION
A. Remittitur Issues
The first three arguments in Putman’s brief are all predicated on the trial court not having the authority to provide for a conditional new trial, the idea apparently being that the trial court’s proviso somehow vacates any possibility of new trial, and the case reverts to the status quo ante, in which Putman was the winner. (Cf. Nguyen v. Nguyen (2008) 158 Cal.App.4th 1636, 1640 [argument that because winner of election after recount requested statutorily invalid method of recount, recount was invalid and winner prior to recount was entitled to take office].)
1. No Request from Moving Party
Putman first asserts that a trial court cannot grant a conditional new trial unless the defendant specifically requests the condition in the new trial order.
No. The text of the relevant statute, Code of Civil Procedure section 662.5, subdivision (b) gives a trial court discretion to condition a new trial based on a reduction of excessive damages without any requirement that the party requesting a new trial specifically request such a condition.
Here is the full text:
2. The Effect of Substantial
Evidence to Support the Verdict
Putman asserts that because there was substantial evidence to support the verdict, the trial court “erred” in granting a new trial conditioned on a reduction of the unanimous jury verdict. He essentially reads Bigboy, supra, 154 Cal.App.3d 397, for the proposition that new trials cannot be granted when substantial evidence supports a verdict as to damages. That is, the trial court cannot substitute his or her personal opinion of what is the appropriate level of damages.
Not so. Bigboy merely stands for the proposition that the statutorily required statement of reasons for a new trial must itself be supported by a “substantial basis in the record.” (Bigboy, supra, 154 Cal.App.3d at pp. 405-406 [“In sum, the appeal from the an order granting a new trial depends upon the sufficiency of the reasons specified by the trial court. Whether these reasons are sufficient depends in turn upon whether there is a substantial basis in the record for the trial judge’s decision.”]; cf. Code Civ. Proc., § 657 [“When a new trial is granted . . . the court shall specify the ground or grounds upon which it is granted and the court’s reason or reasons for granting the new trial upon each ground stated.”].)
In Bigboy, a teenager rendered paraplegic in an auto accident sued the county for not warning about a particular curve in a road. The jury awarded $2.25 million, but the trial court ordered it reduced to $1.75 million or he would grant a new trial motion. The trial judge gave three reasons for ordering a new trial: (1) The trial judge’s personal experience in other cases and awards in other courts; (2) the county’s decision to defend an “indefensible” case; and (3) the plaintiff’s likeableness. (See Bigboy, supra, 154 Cal.App.3d at pp. 406-408.) None of those reasons, of course, had a sufficient basis in the record: The judge’s personal experience and the range of award in other cases was not proper for jury consideration (id. at p. 406); as a matter of “policy” the plaintiff should not have to “suffer” because the county made a decision to defend when “liability was clear” (id. at p. 407); and there is no authority for the idea that a plaintiff’s charm or attractiveness “could impermissibly prejudice a jury” (id. at pp. 407-408).
Here, by contrast, each of the reasons given by the trial judge had a substantial basis in the record, in particular Farber’s testimony, including documents corroborating that testimony. Just because Putman was able to show that Farber could have had a bias against Putman does not mean the judge could not believe her. Even in this appeal, for example, Putman offers no credible basis to explain the discrepancies in the two reports, or the specks that corroborated Farber’s testimony.
3. Putman’s “Special” Damages
Putman next argues that remittitur cannot be used as a matter of law when the jury awards special damages -- here, loss of earnings and fees specifically earned -- as distinct from indeterminate general (pain and suffering) damages or punitive damages. There are three quick answers to this contention: (1) Code of Civil Procedure section 662.5 (quoted in footnote 8) above makes no distinction between general, special or punitive, it merely uses the phrase “excessive damages.” (2) Putman cites no authority for the idea that special damages are ipso facto immune from the discretion accorded judges under section 662.5; just because there are cases where the device is used for punitive damages (e.g., Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1650) does not mean it cannot be used for special damages. And (3), Putman is estopped to claim the benefit of any such rule even if it did exist, because the argument that Putman himself used to skirt the obvious problems in his bills was that he unilaterally reduced an original bill of about $400,000 to $250,000, in effect absolving him of his sins.
Indeed, if a state bar judge in the future finds Farber a credible witness, Putman’s whole case for mitigation may depend on the fact that he treated the Parman bill as one big aggregated “generalized” bill, and unilaterally reduced it to make up for any harm caused by his ordering the bills to be changed to make it look like he did work that a paralegal did.
4. No Showing of Excess
A corollary of the special damages argument just addressed is that there must be “clear and convincing” evidence showing of excess damages. However, neither case cited for the proposition actually stands for that draconian standard. Both Bigboy (already discussed) and the other case, Resort Video, Ltd. v. Laser Video (1995) 35 Cal.App.4th 1679, 1695, which upheld a trial court new trial order, merely stress the need to have an adequate specification.
In any event, given that there was substantial evidence that Putman deliberately ordered paralegal time to be billed at attorney rates, there was a substantial basis in the record for the trial judge to conclude that his claimed fees were excessive. What Putman does not recognize is that since there is strong evidence to doubt many of the entries billed at $300 an hour, the unilateral reduction -- at least for purposes of the validity of the new trial order which is a matter of trial court discretion -- is meaningless. (The argument that the large cut in the bill excuses false entries (or, if you prefer, “bunches” of errors in the entries) is reminiscent of a sale where a store quietly raises its prices and afterwards loudly announces it is cutting them for the sale.)
In the final billing statement that Putman includes in his appellant’s appendix, no indications are given as to exactly who did the work; one can only infer that a lawyer, as distinct from a paralegal, did it by the billing rate ($300 versus $100 an hour) given.
5. Passion and Prejudice
Putman asserts that the trial judge abused his discretion because he was motivated by passion and prejudice toward attorney Putman, whom he disdained. We deal summarily with this ad hominem argument. The only record references in the opening brief given to show the alleged passion and prejudice are merely (a) that the trial judge completed to state bar discipline referral form dated May 17, 2007 plus accompanying letter to the state bar of the same date reporting Putman for having directed that changing billings from paralegal to lawyer rates; and (b) the fact the judge told the jury after they reported their verdict that he was going to report Putman to the state bar. Since Putman does not argue that such conduct (at least as shown by the testimony that was believed by the trial judge) is not a violation of attorney ethics (it obviously is, see generally Day v. Rosenthal (1985) 170 Cal.App.3d 1125), and the trial judge had every right to credit Farber’s testimony as credible, and since that testimony at least showed a flagrant violation of attorney ethics, nothing approaching passion or prejudice is shown.
Indeed, the opening brief contains a statement alleging a calumny against the trial judge which itself appears to be an attempt to mislead this court. On page 12 of the opening brief, it states in the second full paragraph:
Putman forgets that an employee who is discharged after being ordered to falsify records has every legitimate reason to be unhappy with her employer.
B. Elder Abuse
This case is an action by an attorney for an unpaid attorney fee bill. But Putman added a cause of action to his complaint for elder abuse based on the theory that Putman is over 65 years old and one of the elder abuse statutes (Welf. & Inst. Code, § 15610.30) defines elder financial abuse to include retaining the “personal property of an elder to a wrongful use,” i.e., not paying a bill from an attorney over 65 years old is elder abuse. The trial judge dismissed the cause of action for nonsuit after the opening statement. Putman now claims the dismissal was legal error.
The complete text of which is:
The cause of action for elder abuse borders on the frivolous. Elder abuse statutes were never intended to apply to professionals seeking to collect on an unpaid bill. Reading the words “personal property” in Welfare and Institutions Code section 15610.30 to include unpaid bills from professionals over 65 is patently unreasonable. Besides which, such a reading would be unconstitutional as well -- differentiating between a dentist who is 64 years old and a dentist who is 66 years as to ability to collect unpaid bills wouldn’t pass the rational basis test. And in enacting a statutory scheme to protect elderly, vulnerable people from being taken advantage of by, among other persons, their own attorneys, the Legislature most certainly never intended to give attorneys over 65 a big stick in prosaic collection work.
C. The Fraud Instruction
Putman complains that the trial judge modified the fraud instruction so that the jury was told that, in order to find that Schroeder was liable for fraud, at the time Schroeder engaged Putman, Schroeder had to have had an intention not to pay Putman for his services. Putman now contends that the at-the-time-of-engagement qualifier was incorrect; the trial judge should have given an instruction in which mere concealment of an important fact was enough.
Any error in a jury instruction could not, given the circumstances of this case (a new trial motion after a jury verdict in the appellant’s favor) overturn the new trial order, because any arguable error would entail no prejudice to the appellant. That said, by way of dicta, we think the trial court’s modification was correct. (Cf. Code Civ. Proc., § 43 [policy of resolving issues presented on appeal where new trial is granted by appellate court].) The only promise in this case on which a fraud action might be predicated was Schroeder’s promise to pay his attorney according to their retainer agreement, the theory being that Schroeder made the promise with a secret intention not to perform it. But any intent by Schroeder to renege on that promise necessarily had to have been present at the time Schroeder made the promise.
While technically section 43 doesn’t apply here because the new trial was granted by the trial court and this court is merely affirming that order, we think it still expresses a legislative policy approving of such dicta as promotive of judicial efficiency in cases where a new trial is to be had in any event.
D. The Quantum Meruit Instruction
Finally, Putman challenges the special verdict form which told the jury not to answer questions on his quantum meruit cause of action if (to quote from the form) it had “inserted a dollar amount of damages for breach of contract” in response to an earlier question in the verdict form. This issue is premature now, because it was waived at trial and may not come up again, since Putman failed to object to the special verdict form.
IV. DISPOSITION
The new trial order is affirmed. Respondent shall recover his costs on appeal.
The question arises as to whether this court is under an obligation, pursuant to section 6086.7 of the Business and Professions Code, to direct that a copy of this opinion be sent to the State Bar. We conclude that the answer, under the circumstances of this case, is no. The statute provides:
“(a) A court shall notify the State Bar of any of the following:
“(1) A final order of contempt imposed against an attorney that may involve grounds warranting discipline under this chapter. The court entering the final order shall transmit to the State Bar a copy of the relevant minutes, final order, and transcript, if one exists.
“(2) Whenever a modification or reversal of a judgment in a judicial proceeding is based in whole or in part on the misconduct, incompetent representation, or willful misrepresentation of an attorney.
“(3) The imposition of any judicial sanctions against an attorney, except sanctions for failure to make discovery or monetary sanctions of less than one thousand dollars ($1,000).
“(4) The imposition of any civil penalty upon an attorney pursuant to Section 8620 of the Family Code.
“(b) In the event of a notification made under subdivision (a) the court shall also notify the attorney involved that the matter has been referred to the State Bar.
“(c) The State Bar shall investigate any matter reported under this section as to the appropriateness of initiating disciplinary action against the attorney.”
Under the circumstances of this case as presented in this appeal, there is no final order of contempt, modification of thejudgment by this court based on misconduct, imposition of any sanctions by this court for misconduct, or any “civil penalty.”
The result in this appeal is framed by the dynamics of appellate review on new trial motions. As we said in Fountain Valley Chateau Blanc Homeowner’s Assn. v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 751: “A new trial motion allows a judge to disbelieve witnesses, reweigh evidence and draw reasonable inferences contrary to that of the jury, and still, on appeal, retain a presumption of correctness that will be disturbed only upon a showing of manifest and unmistakable abuse. [Citation.] Hence, given the latitude afforded a judge in new trial motions, orders granting new trials are ‘infrequently reversed.’ [Citation.]”
We bear in mind that the jury impliedly exonerated Putman, and find no reason for this court to report him to the State Bar.
WE CONCUR: BEDSWORTH, J., MOORE, J.
“A. There’s bunches of them.”
“In any civil action where after trial by jury an order granting a new trial limited to the issue of damages would be proper, the trial court may in its discretion:
(a) If the ground for granting a new trial is inadequate damages, make its order granting the new trial subject to the condition that the motion for a new trial is denied if the party against whom the verdict has been rendered consents to an addition of so much thereto as the court in its independent judgment determines from the evidence to be fair and reasonable.
“(b) If the ground for granting a new trial is excessive damages, make its order granting the new trial subject to the condition that the motion for a new trial is denied if the party in whose favor the verdict has been rendered consents to a reduction of so much thereof as the court in its independent judgment determines from the evidence to be fair and reasonable.”
“Also prior to the trial, Judge Gray had called Appellant’s attorney, Mr. Kilstofte, into his office and expressed to him, in his presence only, that he was reporting Appellant to the California State Bar for alleged ethical violations. This statement was made before any evidence had even been heard. He told Appellant’s attorney that ‘the letter is already written.’ (AA p. 157-159).”
The way the paragraph is written, it makes it sound as if one will find some proof of the statement that the letter to the state bar “‘was already written’” prior to trial if one checks pages 157 through 159 of the Appellant’s Appendix. But when one actually checks the reference, one only finds the one page handwritten discipline referral form dated May 17, 2007 (page 157) and the two-page formal typed letter of the same date (pages 158-159) referencing, among other things, Farber’s testimony. That is, the only support provided in the brief for the idea that the judge had decided before the trial to report Putman to the state bar were documents dated after the trial.
“(a) “Financial abuse” of an elder or dependent adult occurs when a person or entity does any of the following:
“(1) Takes, secretes, appropriates, or retains real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both.
“(2) Assists in taking, secreting, appropriating, or retaining real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both.
“(b) A person or entity shall be deemed to have taken, secreted, appropriated, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates or retains possession of property in bad faith.
“(1) A person or entity shall be deemed to have acted in bad faith if the person or entity knew or should have known that the elder or dependent adult had the right to have the property transferred or made readily available to the elder or dependent adult or to his or her representative.
“(2) For purposes of this section, a person or entity should have known of a right specified in paragraph (1) if, on the basis of the information received by the person or entity or the person or entity's authorized third party, or both, it is obvious to a reasonable person that the elder or dependent adult has a right specified in paragraph (1).
“(c) For purposes of this section, ‘representative’ means a person or entity that is either of the following:
“(1) A conservator, trustee, or other representative of the estate of an elder or dependent adult.
“(2) An attorney-in-fact of an elder or dependent adult who acts within the authority of the power of attorney.”