Law Offices of Baruch Cohen v. Moore CA2/5 ( 2013 )

Filed 3/13/13 Law Offices of Baruch Cohen v. Moore CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE
LAW OFFICE OF BARUCH C. COHEN B239148
APLC,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC448866)
v.
SAMUEL MOORE et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Robert L. Hess, Judge. Affirmed.
Law Office of Bruce Adelstein, Bruce Adelstein for Plaintiff and Appellant.
No appearance for Defendants and Respondents.
_______________
Appellant Law Offices of Baruch Cohen appeals from the judgment in favor of
defendants Samuel Moore, Joyce Moore, and Fred Wilhelms, as trustee of the William
Everett Preston Trust, on appellant's complaint. We affirm.
Facts
Appellant's complaint alleged that the defendants had retained Cohen, an attorney,
to perform legal services, that they had agreed to make payments during each billing
cycle, and that they had not made the minimum payments. We need not further detail the
underlying facts, except to say that the retention involved the bankruptcy of William
Everett Preston, that defendant Joyce Moore was Preston's personal and business
manager, that her husband, defendant, Samuel Moore was involved in that business, and
that the bankruptcy trustee was seeking sums from the Moores and from the trust.
The causes of action were breach of contract, fraud, and common counts.
Appellant sought damages of $462,652; his bills minus the $95,220 which defendants had
paid.
The defendants were served, but did not answer. Appellant filed a request for
entry of default, and default was entered. Appellant also sought default judgment. The
court received the filing and set hearing on an Order to Show Cause re: dismissal for
failure to enter a default judgment. At that hearing, the court conferred with counsel
concerning corrections to the filing and continued the case. Then, on review of
appellant's third submission, the court ruled that "[s]ignificant issues identified by the
Court remain unanswered, and the Court's review of the bills raises new questions. [¶] An
oral prove-up will be required with [appellant] to testify under oath."
In the judgment, issued after the hearing, the court found a failure to plead any
claim, "except possibly a common count," noting, inter alia, that while appellant was
claiming that the Moores were liable for fees incurred in the Wilhelms representation,
and was claiming that Wilhelms, as an individual, was responsible for the fees incurred in
the representation of the Moores, the retainer agreements submitted to the court did not
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so provide. The court also noted that defendants had not consented to the dual
representation in writing, although appellant's description of the underlying proceedings
indicated that defendants' interests were not entirely congruent.
On the issue of damages, the court first made findings concerning the bills
appellant submitted. The court found that the way the bills were broken down internally,
and the fact that the bills referred to many people only by initials, and the fact that there
were multiple entries in substantially identical language made it difficult to determine
what services had been provided. As to the initials, it was not clear to the court who the
people were, or how the matters related to the representation. Further, there were
multiple entries for activities which were described the same way, often for the same
amount of time, on the same day, so that it was impossible to tell whether there were
duplicate entries.
The court noted, too, that on one subsection of the bill, there were 40 entries for
"telephone call with client," 35 of them were billed at .30 hours. The court found it
"remarkable" that so many of these calls took precisely 18 minutes.
The court then found that "the Court has serious questions concerning the amount
of time billed, both on particular projects and in the aggregate," and gave several specific
examples of excessive time on a project (more than 24 hours for drafting and revising a
declaration), excessive time in general (over 590 hours for July and August of 2007), and
other problems (two billing statements, with different time entries, for the same period).
The court then found that "Certain time records are clearly inaccurate.
[Appellant's] testimony concerning how the time records were kept and how the
statements were prepared cannot be reconciled with the bills themselves." The court
noted an instance in which appellant had billed 32 hours for a single day, and an instance
in which he had billed over 34 hours in a single day.
The court wrote, "These circumstances cast doubt not simply on those dates for
which [appellant] billed more than 24 hours, but also on all other dates. [Appellant's]
oral testimony at the default prove-up concerning the matter in which he recorded his
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time, if true, left little room for claims of inadvertent error. The Court is compelled to
conclude that the testimony of [appellant] was not true, and that the billing statements
submitted as proof of the sums allegedly owed are not accurate and reliable records of the
time spent. In addition, since an indeterminate number of the time records are
demonstrably inaccurate, the Court is left without any principled way of determining
what an accurate sum would be. The Court finds the evidence entirely inadequate to
prove any amount of damages in [appellant's] favor."
Discussion
Appellant first argues that the court erred when it found that he had not stated a
cause of action for breach of contract, or for common counts. He cites the rule that a
judgment by default confesses the well-pleaded allegations of the complaint (Steven M.
Garber & Associates v. Eskandarian (2007) 150 Cal.App.4th 813, 823) and contends that
he pled all the elements of the causes of action.
However, damages are an element of each cause of action, and default judgment
can be entered "only upon proof to the court of the damage sustained." (Taliaferro v.
Hoogs (1963) 219 Cal.App.2d 559, 560.) Even when the allegations of a complaint
support the judgment a plaintiff seeks, the plaintiff is not automatically entitled to entry
of judgment, simply because defendant defaulted. "Instead, it is incumbent upon plaintiff
to prove up his damages, with actual evidence." (Kim v. Westmoore Partners, Inc. (2011)
201 Cal.App.4th 267, 272.) "The correct standard of proof requires that the plaintiff
merely establish a prima facie case," (Johnson v. Stanhiser (1999) 72 Cal.App.4th 357,
361) "but a prima facie case is not equivalent to 'a matter of course.' Prima facie
evidence is still evidence and subject to some standards." (Harbour Vista, LLC v. HSBC
Mortgage Services Inc. (2011) 201 Cal.App.4th 1496, 1503, fn. 6.)
Appellant admits that his bills contain errors and agrees that the trial court could
not have awarded him the full amount he claimed, but contends that the court erred by
not awarding anything. He argues that he indisputably did some work, and that the court
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could have determined damages, by (with assistance from him) reviewing his billing
statements, correcting for overstated or duplicate time, and, where there were doubts
about accuracy, verifying with reference to the bankruptcy court's docket or the work
product; or that the court could have asked him to reconstruct his time based on the actual
work done, not the work claimed in the bills; or that the court could have estimated the
proper amount of fees from the bankruptcy court docket or otherwise.
It was not, however, for the trial court to find alternative methods of determining
damages, or to engage in the tasks appellant now suggests. Instead, appellant bore the
burden of proving his damages. Having failed to provide the court with credible
evidence of damages, he cannot recover damages.
The trial court made credibility findings and findings of fact, and concluded that
appellant did not establish a prima facie case. Credibility findings are the province of the
trial court, and the findings of fact are supported by substantial evidence. They are thus
not findings which we disturb on appeal.
"When the plaintiff has had full and fair opportunity to present the case, and the
evidence is insufficient as a matter of law to support plaintiff's cause of action, a
judgment for defendant is required." (McCoy v. Hearst Corp. (1991) 227 Cal.App.3d
1657, 1661.)
Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG, Acting P. J.
We concur:
KRIEGLER, J. O'NEILL, J.*
* Judge of the Ventura Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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