Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC337791 Haley Fromholz, Judge.
Robie & Matthai and Kyle Kveton for Plaintiff and Appellant.
Law Offices of Jeffrey B. Bohrer and Jeffrey B. Bohrer for Defendant and Respondent.
SUZUKAWA, J.
Respondent Allen Ashkenazi (Ashkenazi) retained Krakow & Kaplan, LLP, predecessor-in-interest to appellant Rottman-Kaplan P.C. (collectively, Rottman-Kaplan), to represent him in a wrongful termination case. The case went to trial and resulted in a substantial verdict for Ashkenazi. After trial, Ashkenazi disputed the fees and costs to which Rottman-Kaplan was entitled, and also contested the fees claimed by some experts and litigation support personnel retained by Rottman-Kaplan, including appellant Christopher Turko (Turko). Ultimately, Rottman-Kaplan paid Turko’s fees in exchange for an assignment of his claim against Ashkenazi.
At the conclusion of a one-day bench trial, the trial court found, among other things, that Ashkenazi was not obligated to pay Turko’s fees because the parties had never agreed that he would do so. Substantial evidence supports this conclusion, and we thus affirm.
FACTS AND PROCEDURAL HISTORY
I. The Wrongful Termination Case
Ashkenazi retained Rottman-Kaplan in May 2000 to represent him in a wrongful termination case against Baan USA, Inc. (the wrongful termination case). Ashkenazi and Rottman-Kaplan signed a retainer agreement that provided, among other things, that “Ashkenazi will be responsible for payment of all out-of-pocket costs in accordance with the firm’s Policy Statement Concerning Charges and Disbursements, effective January 1, 2000, or as it may be amended from time to time. Such out-of-pocket costs may include, but are not limited to expert witness fees, travel expenses, messenger service expenses, court reporter fees, filing fees, service of process fees, document scanning costs, computer assisted research charges and photocopying charges in connection with this matter.” The firm’s Policy Statement Concerning Charges and Disbursements (Policy Statement) further provided that “The Firm retains the discretion to forward to the client for direct payment major expenses. Examples of such major expenses include . . . [f]ees for outside professional services, including local counsel, accountants, expert consultants, expert witnesses, private investigators, and other professional fees.” Steven Kaplan, a Rottman-Kaplan principal, testified that copies of the Policy Statement routinely were attached to the firm’s retainer agreements; Ashkenazi testified, however, that he never saw the Policy Statement, either when he signed the retainer agreement or thereafter.
Prior to and during trial, Rottman-Kaplan retained experts and others to assist with its trial presentation. Among those retained was Christopher Turko, doing business as Digidep, to provide video services before and during trial.
The wrongful termination case was tried to a jury in 2004. The jury returned a verdict for Ashkenazi and awarded him $566,800 in compensatory damages, plus $277,503.23 in prejudgment interest and $88,980 in continuing wages under Labor Code section 203. Further, pursuant to his motion, Ashkenazi was awarded attorney fees and costs: $826,683 in attorney fees, $24,303 for Turko’s work, $3,130 in paralegal fees, and $2,889 in telephone, fax, and messenger charges. Judgment was entered on February 25, 2005.
Following trial, a dispute arose between Ashkenazi and Rottman-Kaplan concerning the attorney fees and costs to which Rottman-Kaplan was entitled. Ashkenazi also contested the fees claimed by some experts and litigation support personnel retained by Rottman-Kaplan, including Turko.
On August 5, 2005, Turko sued Ashkenazi to recover his fees.
II. Settlement of the Wrongful Termination Case
Baan appealed from the wrongful termination judgment. While the case was on appeal, Baan, Ashkenazi, and Rottman-Kaplan reached a settlement. The settlement was expressed in two separate documents, as follows:
(1) A settlement agreement entered between Baan, Ashkenazi, and Rottman-Kaplan stated that Baan would pay Ashkenazi and Rottman-Kaplan $1,500,000 in full satisfaction of the wrongful termination judgment, to be divided evenly between them. The settlement agreement further stated that “Nothing in this Agreement shall constitute a waiver or be construed as a waiver, by Rottman-Kaplan and/or Ashkenazi, of any rights each of them may have regarding their dispute over unpaid costs, which dispute is the subject of a separate Arbitration Agreement between Ashkenazi and Rottman-Kaplan.”
(2) An “Arbitration Agreement and Release of Claims” entered between Ashkenazi and Rottman-Kaplan recited that the parties had reached a tentative settlement agreement with Baan; notwithstanding the Baan settlement, a dispute concerning costs continued to exist between the parties “in which the Firm claims that . . . Ashkenazi owes the firm outstanding costs incurred in connection with the Baan litigation (‘Cost Dispute’), which obligation Ashkenazi disputes and denies”; and the cost dispute would survive execution of the Baan settlement. Further, the agreement recited that Ashkenazi “is in litigation with Digidep regarding Digidep’s claim for unpaid fees and costs” and “[t]he dispute with Digidep is not part of the Cost Dispute.” Finally, the agreement provided that Ashkenazi and Rottman-Kaplan had agreed to arbitrate the cost dispute using the fee-dispute arbitration services of the Los Angeles County Bar Association and to release each other from all other claims.
The release of claims provided: “As a material term of this Agreement, and subject to the limitations set forth herein, the Firm, Steven J. Kaplan, individually, and Steven J. Rottman, individually, on behalf of themselves, their predecessors and successors, and their agents, attorneys, and assigns, hereby waive and release Ashkenazi, and his agents, attorneys and assigns, from and against any and all claims, debts, liabilities, demands, obligations, promises, acts, agreements, liens, losses, costs, and expenses (including, without limitation, attorneys fees and related costs), damages, injuries, suits, actions, and causes of action of whatever kind or nature, whether known or unknown, suspected or unsuspected, matured or unmatured, liquidated or unliquidated, contingent or fixed, at law or in equity, of any kind whatsoever, including without limitation, any potential claims relating to the representation of Ashkenazi, including without limitation, any potential claims for professional and/or legal fees. [¶] . . . Notwithstanding the foregoing or anything to the contrary in this Arbitration Agreement, nothing herein is intended to constitute a waiver, or may be construed as a waiver of any claims or defenses that the Firm may assert in the Cost Dispute which shall be subject to arbitration, as hereinafter described, nor does the Firm in any manner waive its right to assert claims against Ashkenazi for outstanding costs claimed by the Firm. Furthermore, nothing herein is intended to constitute a waiver, or may be construed as a waiver, of the Firm’s right to pursue claims against Ashkenazi for conduct that may occur in the future, including but not limited to any violation of this Arbitration Agreement.”
In June 2006, Ashkenazi and Rottman-Kaplan arbitrated their cost dispute. The arbitrator awarded Rottman-Kaplan costs of $14,679, plus prejudgment interest.
III. The Digidep/Turko Dispute
On May 26, 2006, Turko amended his complaint against Ashkenazi to substitute Stephen Kaplan and Rottman-Kaplan for Doe defendants. The same month, Rottman-Kaplan filed a cross-complaint against Ashkenazi for declaratory relief, indemnification, and fraud. A first amended cross-complaint was filed June 29, 2006.
In July 2006, Rottman-Kaplan and Turko settled the cross-action between them. Rottman-Kaplan agreed to pay Turko $28,985, in exchange for Turko’s assignment of his claims against Ashkenazi.
IV. Trial and Judgment
The court held a one-day bench trial of the remaining claims between Ashkenazi and Turko, through Turko’s assignee, Rottman-Kaplan, on July 24, 2006. Turko testified that he was contacted by Steven Rottman, a Rottman-Kaplan principal, about providing video services in connection with the wrongful termination case. Rottman asked what Turko’s rates were and said that he “needed . . . to get approval from his client to proceed further.” Rottman subsequently told Turko that Ashkenazi would not pay his full hourly rate “and I needed to lower my rate, and he wanted some sort of deal.” Turko offered to work on a contingent basis, but that offer was rejected. Ultimately, Turko agreed to accept an hourly rate of $85 per hour. Turko never had a written agreement with Ashkenazi, but he believed that Ashkenazi had agreed to pay his bills: “Mr. Rottman needed to get approval for my rates. [Ashkenazi] approved my rates, and that meant to me that he would be responsible for paying my bill.”
In contrast to Turko, Ashkenazi testified that he never discussed Turko’s rates with Rottman and never received a June 17, 2004 email from Rottman to Turko stating that “Allen [Ashkenazi] has approved your rates.” He said that Rottman had suggested retaining Turko, but that he had told Rottman that he “[could not] afford to do that at this time.” Thus, he was “under the impression that Rottman Kaplan had decided to assign [sic] Turko for his services and that they were doing [it] on their own independently of me.” He said that the first time he recalled Rottman telling him that he was responsible for Turko’s bill was in February or March 2005, after the wrongful termination trial had concluded. He objected. Ashkenazi did not believe that his retainer agreement with Rottman-Kaplan obligated him to pay Turko’s fees because “I had spoken to Mr. Rottman when he asked me about it [hiring Turko to provide videography services], and I said no.”
At the close of evidence, the court announced its “tentative thoughts.” It said: “Based on the testimony I heard, based on the witnesses who testified and the exhibits that were introduced into evidence, I don’t think that the plaintiff has carried its burden on a breach of contract action. I don’t think there was a meeting of the minds in terms of the defendant Mr. Ashkenazi paying the costs of Mr. Turko. With respect to the common counts, I guess I have a fundamental question why should the law firm be paid twice for Mr. Turko. The judgment . . . shows that Judge Cooper awarded Mr. Turko’s fees as part of that attorney’s fee application. Unique to that system, individuals like Mr. Turko, who provide litigation services, can be included in the application. They were and they were awarded. There [were], apparently, subsequent disputes in litigation between and among the parties, but that was compromised in [the Baan settlement agreement], and [the Baan settlement agreement] set forth the reduced amount of attorney’s fees, and this court would think that it was intended that that would include the costs of Mr. Turko as well. Following that, [the arbitration agreement] shows the release of any and all claims as between the law firm and Mr. Ashkenazi. In particular, paragraph 3(b) indicates that the law firm releases Mr. Ashkenazi of any and all debts, liabilities, demands, obligations, known and unknown, including those from the law firm’s predecessors and assigns. I don’t see any way, if this court could overcome the notion under a common counts theory that monies were owed to Mr. Turko, why the law firm should be paid twice. As I said, I don’t think the release allows them any latitude thereafter.”
After closing arguments, the court announced that its tentative ruling would be the final ruling. Further, it said as follows: “[I]t was persuasive to the court in the plaintiff’s failure to carry the burden of proof that there was no copy of the original Exhibit B [Rottman-Kaplan Policy Statement Concerning Charges and Disbursements Effective August 1, 2001], which was purportedly attached to the retainer agreement for legal services, and I think it is the obligation of the attorneys to keep their records and provide copies of those documents by which they feel their clients incur obligations. Also, in failing to carry the burden of proof, the plaintiffs failed to provide a signed copy of Exhibit Y, which this court will give no weight to at all. The court is persuaded that the fair result in this case is that there was no meeting of the minds between the assign, also known as an assignor, that is, Turko, and Mr. Ashkenazi, and by stepping into the shoes of Mr. Turko, the law firm cannot stand in a better position by means of an incomplete retainer agreement, which they had tendered into evidence here. I’m further persuaded that by choosing to treat these Turko costs as part of their attorney’s fees award and then compromising that award that the parties knowingly and intelligently reached the compromises that are set forth in the exhibits. And finally, the arbitration award, Exhibit 5, I think, operates as a complete release of any claims which have been assigned to the law firm.”
On December 1, 2006, the court entered amended judgment for Ashkenazi, finding as follows:
“(1) Plaintiff has failed to carry his burden of proof as to their claim of breach of Contract and for Common Counts, based, in part, upon the evidence presented showing that there was no meeting of the minds as between Plaintiff TURKO and defendant ASHKENAZI. Rottman Kaplan then, could not satisfy the burden of proof since an assignee may not stand in a better position than that of the assignor.
“(2) Plaintiff assignee chose to treat Turko’s costs as part of their attorney’s fees motion and that, by compromising such claims by the terms of the proffered Settlement documents, Rottman Kaplan knowingly, intelligently and voluntarily compromised their attorney’s fees.
“(3) Finally, the Arbitration and Release of All Claims proffered and accepted into evidence, established a complete defense and release as to any liability of Ashkenazi to Rottman Kaplan.”
Notice of entry of judgment was served December 19, 2006. Rottman-Kaplan filed this timely appeal from the judgment on January 31, 2007.
DISCUSSION
The trial court articulated three separate bases for its conclusion that Ashkenazi was entitled to judgment: (1) there was no meeting of the minds that Ashkenazi would be responsible for Turko’s fees; (2) through the Baan settlement agreement, Rottman-Kaplan compromised its claim to be reimbursed for Turko’s fees; and (3) through the “Arbitration Agreement and Release of Claims,” Rottman-Kaplan released Ashkenazi from all claims not asserted in the cost dispute. Because each of these grounds independently supports the judgment, we must affirm if the record supports any one of them. (E.g., R & B Auto Center, Inc. v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327, 352.)
“We review a challenge to the trial court’s factual findings under the substantial evidence test. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 461-462.) We presume the record contains evidence sufficient to support the judgment, consider the evidence in the light most favorable to the judgment, and resolve all conflicts in favor of the judgment. (SFPP, supra, at p. 462.)” (County of San Bernardino v. Walsh (2007) 158 Cal.App.4th 533, 540, fn. omitted.) “‘This court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] If the circumstances reasonably justify the trial court’s findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.] . . . Before the judgment of the trial court can be set aside for insufficiency of the evidence . . ., it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it. [Citation.]’ (People v. Redmond (1969) 71 Cal.2d 745, 755; see also People v. Johnson [(1980)] 26 Cal.3d [557,] 576-577.)” (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1372.)
We conclude that substantial evidence supports the trial court’s finding that there was no meeting of the minds that Ashkenazi would be responsible for Turko’s fees. Ashkenazi testified that when Rottman raised the possibility of using videography at trial, he responded that he “[could not] afford to do that at this time.” Further, he denied ever discussing Turko’s rates or how Turko would be paid for his work with Rottman, and he denied receiving a June 17, 2004 email from Rottman to Turko stating that “Allen [Ashkenazi] has approved your rates.” As a result, he said, he was “under the impression that Rottman Kaplan had decided to assign [sic] Turko for his services and that they were doing [it] on their own independently of me.” The trial court credited this evidence, and we may not reweigh it. (People v. McKee (2008) 160 Cal.App.4th 1517, 1554 [“It is not our function on appeal to reweigh the evidence or the credibility of witnesses”].)
Rottman-Kaplan contends that the trial court gave insufficient weight to the retainer agreement, which it claims is independent evidence that the parties agreed at the outset of litigation that Ashkenazi would be responsible for the fees of all third-party professionals. We do not agree. While the retainer agreement is evidence that Ashkenazi agreed to pay for the law firm’s necessarily-incurred out-of-pocket costs, it does not evidence his agreement to retain Turko to provide videography services at trial. Further, as we have said, Ashkenazi’s testimony is substantial evidence that Ashkenazi did not agree to retain Turko or pay his bill.
Rottman-Kaplan also contends that the inclusion of the cost provision in its retainer agreement put Ashkenazi on notice that he would be obligated to pay costs when they were incurred and that if Ashkenazi “declines to permit the retention of a third party professional, he . . . has the obligation to advise the attorneys of that declination in clear and unambiguous terms, so that the attorneys do not engage a professional whose services were refused by the client.” Rottman-Kaplan cites no authority for this proposition, and we thus reject it as waived. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
DISPOSITION
The judgment is affirmed. Respondent Ashkenazi shall recover his costs on appeal.
We concur: EPSTEIN P. J., MANELLA J.