David Allen etc. v. Gentry CA1/5 ( 2021 )

Filed 10/15/21 David Allen etc. v. Gentry CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FIVE
DAVID ALLEN, A PROFESSIONAL
LAW CORPORATION, d.b.a.
DAVID ALLEN & ASSOCIATES, A160180
Plaintiff and Appellant,
(Solano County Super. Ct.
v. No. FCS050830)
KELSA GENTRY et al.,
Defendants and Respondents.
Plaintiff and appellant David Allen (“appellant”) appeals from the trial
court’s grant of summary judgment in favor of defendants and respondents
Kelsa Gentry (“Gentry”) and the Veen Firm (“Veen”). We affirm.
Gentry was seriously injured in a November 2013 car accident that left
her confined to a wheelchair. It is undisputed that the driver who caused the
accident was an attorney employed by Bradford & Barthel, LLP (“Bradford &
Barthel”) and that he was driving to a court appearance at the time of the
accident. After the accident, Gentry’s mother retained appellant to represent
Gentry in seeking compensation for Gentry’s injuries. Gentry’s mother
signed a “Personal Injury Retainer Agreement” prepared by appellant (the
“Retainer”). Subsequently, Gentry signed the Retainer.
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Appellant determined that the driver was covered by a $100,000
insurance policy and that his employer Bradford & Barthel was covered by a
$5 million policy. Appellant and the attorney retained by the law firm’s
insurer both believed the insurance company would be willing to settle for the
$5 million policy limit, but appellant made no such demand on behalf of
Gentry, and the insurance company never actually made that offer. Gentry
told appellant that a settlement at the policy limit was unacceptable.
The Retainer contained a provision stating, “I agree this Agreement
may be terminated by either Attorney or me. In the event of termination I
realize I will be responsible for the expenses incurred and for the value of the
services provided. I agree the services will be valued at $275 per hour for
attorneys, $150 per hour for legal assistants and paralegals and $50 per hour
for all other persons who work on my case.” Neither Gentry nor her mother
were told that appellant would seek a different measure of fees if Gentry
terminated the Retainer.
In May 2014, Gentry terminated the Retainer and retained Veen to
prosecute her claim. Veen filed suit on behalf of Gentry against the driver
and Bradford & Barthel in June 2014. In March 2017, the case settled for
$6.1 million. Appellant’s accounting showed it was entitled to $74,350 if fees
were calculated under the termination provision of the Retainer.
Nevertheless, appellant filed an action against Gentry and Veen seeking a
greater fee award based on an allegation that Bradford & Barthel’s insurer
“was prepared to tender the [$5,000,000.00] policy” before Gentry terminated
the Retainer.
Appellant’s January 2018 First Amended Complaint asserted causes of
action for declaratory relief, quantum meruit recovery, and foreclosure of an
attorney fees lien. The quantum meruit cause of action stated, “[Appellant]
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performed and rendered legal services on behalf of [Gentry], and its efforts
placed [Gentry] in a position to receive tenders of settlement [of] at least
$5,100,000.00 prior to May 7, 2014. [Gentry] received $900,000.00 in
additional settlement funds as a result of [Veen’s] legal representation and
efforts. . . . [Appellant] claims it is entitled to the reasonable value of its
services, with interest thereon, from and after the date that such settlement
payments were received by Gentry and/or [Veen]. . . .”
Respondents moved for summary judgment and the trial court found in
their favor, concluding, “Unlike in a number of the cases cited by plaintiff, the
parties in the present case clearly expressed their expectation as to payment
for the reasonable value of the services of [appellant] should [Gentry]
terminate the contract, as she did. The parties agreed to payment based on
the time spent multiplied by the hourly rate of every person who worked on
the case, and no more. [Citation.] Therefore, the court may find, as a matter
of law, that [appellant] is entitled to this amount only.” In March 2020, the
court entered judgment in favor of respondents; the judgment also states that
appellant “is entitled to recover $74,350.00 as a matter of law.”
On appeal, appellant contends the Retainer became “null and void”
when Gentry terminated the agreement and, therefore, appellant was
entitled to the reasonable value of its services without reference to the
Retainer’s termination provision. However, appellant cites no authority that
termination of the agreement rendered the language in the termination
provision unenforceable. “To ‘terminate’ a contract . . . means to abrogate so
much of it as remains unperformed, thereby doing away with the existing
agreement upon the terms and with the consequences agreed upon.” (Grant
v. Aerodraulics Co. (1949) 91 Cal.App.2d 68, 75; accord 1 Witkin, Summary of
Cal. Law (11th ed. 2017) Contracts, § 955, pp. 1007–1008.) In the present
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case, the parties agreed that “[i]n the event of termination,” respondent
Gentry “will be responsible for the expenses [i]ncurred and for the value of
the services provided” at specified hourly rates. That agreement specifying
the consequences of termination is enforceable. (See W. Camps, Inc. v.
Riverway Ranch Enterprises (1977) 70 Cal.App.3d 714, 727 [enforcing
termination provision]; Lunden v. Los Angeles Cty. (1965) 233 Cal.App.2d
811, 817 [same]; Martter v. Byers (1946) 75 Cal.App.2d 375, 382 [same]; see
also 13 Corbin on Contracts (rev. ed. 2003) § 67.2, p. 12 [“the rights of the
parties with respect to performances rendered or a breach committed before
the [termination] notice became operative depends upon the provisions of the
‘terminated’ contract”].) Appellant cites no authority to the contrary.
In support of its position, appellant primarily relies upon the decision
in Fracasse v. Brent (1972) 6 Cal.3d 784. There, the California Supreme
Court held a discharged attorney was limited to “quantum meruit recovery
for the reasonable value of his services,” rather than “the full fee specified in
the contract of employment.” (Id. at p. 786.) Contrary to appellant’s
suggestion, the Fracasse court did not state that discharge of an attorney
renders the retainer agreement with that attorney void and unenforceable for
all purposes. Instead, the court simply reasoned that to allow the attorney to
collect the full fee would be contrary to “the strong policy, expressed both
judicially and legislatively, in favor of the client’s absolute right to discharge
his attorney at any time.” (Ibid.) The court rejected the attorney’s request to
enforce the retainer’s contingency fee provision to recover more than the
attorney would be entitled to recover under quantum meruit principles.
Nothing in Fracasse supports appellant’s attempt in the present case to rely
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on quantum meruit to obtain greater compensation upon termination of the
Retainer than it expressly agreed to.1
The Retainer’s termination provision is clear and, even if it were
ambiguous, the ambiguity would be resolved against appellant, who drafted
the Retainer. (M’Guinness v. Johnson (2015) 243 Cal.App.4th 602, 617–618.)
Appellant has not shown the trial court erred in limiting its fees to the
measure of fees specified in the Retainer’s termination provision.
DISPOSITION
The trial court’s judgment is affirmed. Respondents shall recover their
costs on appeal.
1 Neither do the additional cases appellant cites support its position on
appeal. Those cases address void or voidable agreements (Fergus v. Songer
(2007) 150 Cal.App.4th 552, 570; Guthman v. Moss (1984) 150 Cal.App.3d
501, 507) or discuss quantum meruit recovery without addressing
circumstances analogous to those in the present case (Joseph E. Di Loreto,
Inc. v. O’Neill (1991) 1 Cal.App.4th 149, 156–157; Cazares v. Saenz (1989)
208 Cal.App.3d 279, 287–288; Spires v. Am. Bus Lines (1984) 158
Cal.App.3d 211, 216–17; Lessing v. Gibbons (1935) 6 Cal.App.2d 598, 607).
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SIMONS, J.
We concur.
JACKSON, P. J.
NEEDHAM, J.
(A160180)
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