Law Offices of Marvin L. Mathis v. Lotta CA2/8 ( 2014 )

Filed 1/10/14 Law Offices of Marvin L. Mathis v. Lotta CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
LAW OFFICES OF MARVIN L. B248251
MATHIS,
(Los Angeles County
Appellant, Super. Ct. No. TC026559)
v.
MICHAEL A. LOTTA,
Respondent.
APPEAL from the order of the Superior Court of Los Angeles County. William P.
Barry, Judge. Affirmed.
Marvin L. Mathis for Appellant.
Michael A. Lotta, in pro. per., for Respondent.
**********
This is a dispute over the apportionment of attorney fees between the former and
subsequent attorneys for the plaintiffs in the underlying superior court action titled
Tommy Carter et al. v. JVS Transportation et al., case No. TC026559.
Appellant Law Offices of Marvin L. Mathis filed a wrongful death action on
May 23, 2012, on behalf of three siblings (one minor and two adults) whose mother had
been killed in an automobile accident a week earlier. In October 2012, the plaintiffs
discharged appellant and substituted respondent Michael A. Lotta as their new counsel.1
About a week later, defense counsel indicated at the case management conference that the
case could be settled for the policy limits.
The case was thereafter settled on behalf of all three plaintiffs, with $500,000 the
agreed-upon amount for the minor plaintiff. Some five months later, on March 21, 2013,
the court held a hearing on a petition to approve the compromise of the minor plaintiff’s
claim. At the hearing, the court requested appellant and respondent to submit additional
briefing on the issue of the proper apportionment of fees between them, and took the
matter under submission. Appellant submitted a declaration, a copy of the retainer
agreement, a document referencing work performed on the case, and copies of receipts
reflecting costs he had advanced on the case. Respondent also submitted a brief.
On April 12, 2013, the court issued its order apportioning attorney fees from the
minor plaintiff’s settlement as follows: $115,000 to respondent and $10,000 to appellant.
The court also allowed recoverable costs in the amount of $334.95.
Appellant then filed this appeal challenging the court’s apportionment of fees,
arguing he performed the majority of the work to accomplish the settlement and therefore
was entitled to a majority percentage of the recoverable fee. The order is an appealable
order, despite respondent’s suggestion, without authority, to the contrary. (See Breckler
1 The minimal clerk’s transcript provided by appellant does not contain the
substitution form for the minor plaintiff, but the parties appear to be in agreement that all
three plaintiffs discharged appellant, and respondent became their new counsel in
October 2012. The substitution forms were executed by the adult plaintiffs and
respondent in August 2012, but appellant did not sign the forms until October 2, 2012.
2
v. Thaler (1978) 87 Cal. App. 3d 189, 193-194 [order apportioning fees between cocounsel
in a personal injury action was appealable as a final order after judgment, and attorneys
were parties to the record with respect to the collateral fee order]; see also Code Civ.
Proc., § 904.1, subd. (a)(2).)
We begin with the well-established foundational premise that “ ‘[a] judgment or
order of the lower court is presumed correct. All intendments and presumptions are
indulged to support it on matters as to which the record is silent, and error must be
affirmatively shown. This is not only a general principle of appellate practice but an
ingredient of the constitutional doctrine of reversible error.’ [Citations.]” (Denham v.
Superior Court of Los Angeles County (1970) 2 Cal. 3d 557, 564, second italics added;
accord, Moreno v. City of King (2005) 127 Cal. App. 4th 17, 30 [where appellant brought
up inadequate record, appellate court presumed trial court had been presented with “a
sound basis” for implied finding that appellant had not incurred certain costs and
affirmed trial court’s denial of same].) And, unless otherwise shown, “it is presumed that
the court followed the law.” (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal. 3d
554, 563.)
Moreover, it is the appellant’s duty to present an adequate record from which
reversible error is affirmatively shown. (Ballard v. Uribe (1986) 41 Cal. 3d 564, 574-575;
9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 628, p. 704; see also Cal. Rules of
Court, rule 8.120.)
Here, appellant argues entitlement to a new hearing on the apportionment of
attorney fees recovered from the minor plaintiff’s settlement proceeds. However,
appellant elected to present a limited clerk’s transcript and no reporter’s transcript as the
entirety of the record on appeal. The petition for approval of the minor’s compromise
was not designated or included in the record. Only the court’s final order approving the
petition was included in the clerk’s transcript.
The record reflects the guardian ad litem for the minor plaintiff and the adult
plaintiffs appeared, and apparently testified, at the March 21, 2013 hearing on the
petition, at which the issue of attorney fees was discussed and which ended with the trial
3
court requesting further briefing from appellant and respondent as to the apportionment
of fees. At oral argument, appellant represented that no reporter was requested to record
the hearing and therefore no transcript of the proceedings exists.
Appellant’s request for attorney fees, both in the trial court and on appeal, is based
exclusively on his brief, and his conclusory declaration and document titled “Legal
Services Performed by Law Offices of Marvin L. Mathis.” That document purports to
itemize appellant’s work, but includes numerous entries such as “08/23/2012 Response to
Tracy Goldberg by Atty. Mathis.” There is nothing explaining what this means in terms
of work performed or how long it took. There is nothing in appellant’s declaration or
paperwork which provides a fair estimate of hours worked, a reasonable hourly fee or the
customary fee earned by appellant, or anything supporting a reasonable basis for
awarding appellant additional fees. At oral argument, appellant conceded he did not
provide the trial court with any estimate of the reasonable hours worked in representing
the plaintiffs, contending the court did not specifically request it.
The court’s order apportioning fees is reviewed for abuse of discretion, and
appellant argues primarily that the court abused its discretion because the mere lack of
detailed time records itemizing work is not fatal to an award of reasonable fees based on
the attorney’s testimony. It is true that fee awards do not always require the presentation
of detailed time records; an attorney’s fair estimation of hours worked based on personal
knowledge and then multiplied by a reasonable hourly rate may properly support a fee
award. (See Mardirossian & Associates v. Ersoff (2007) 153 Cal. App. 4th 257, 269-270.)
However, appellant concedes he did not provide the court with anything equating
with a fair approximation of hours worked or a reasonable rate of pay. Instead, the court
was presented with appellant’s bald assertion that he performed the bulk of the work
resulting in the settlement achieved and that the retainer agreement entitled him to the
lion’s share of the fees earned. The trial court was also presented with a petition prepared
by respondent as to his request for fees relative to the work he performed after
substituting into the case. And, the court had the court records and testimony from the
plaintiffs and guardian ad litem which undermined the validity of appellant’s retainer
4
with the plaintiffs, as well as the propriety of the previous guardian ad litem for the minor
plaintiff who was apparently an acquaintance of appellant’s. The record shows appellant
filed a timely complaint on behalf of plaintiffs and appears to have exchanged some
correspondence with defense counsel over a period of a few months. The court asked for
additional briefing from the lawyers and did not receive anything more substantial from
appellant to justify an award of a significant portion of the recoverable fees. Appellant
offers no explanation how the trial court was to calculate a reasonable quantum meruit
recovery of fees (which appellant contends he was entitled to even if the retainer was
invalid) in the absence of a fair estimation of hours worked.
“The discretion of a trial judge is not a whimsical, uncontrolled power, but a legal
discretion, which is subject to the limitations of legal principles governing the subject of
its action, and to reversal on appeal where no reasonable basis for the action is shown.”
(9 Witkin, supra, Appeal, § 364, p. 420.) Nothing presented or argued by appellant
supports a determination there was no reasonable basis for the court’s apportionment of
fees favoring respondent. Appellant has failed to submit an adequate record and has
wholly failed to affirmatively show error or any grounds for relief. On this record, we
cannot fairly assess whether the trial court abused its discretion in apportioning fees
between appellant and respondent. The order apportioning fees must therefore be
affirmed.
DISPOSITION
The order of April 12, 2013, is affirmed. Respondent is to recover his costs on
appeal.
GRIMES, J.
We concur:
RUBIN, Acting P. J. FLIER, J.
5