Currency Corp. v. Wertheim CA2/1 ( 2021 )

Filed 12/1/21 Currency Corp. v. Wertheim CA2/1
Opinion following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 ONE
CURRENCY CORP., et al., B276506
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. BC417798)
v.
WERTHEIM, LLC,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, David Sotelo, Judge. Affirmed.
The Rubin Law Firm, Brett M. Rubin; Law Offices of F. Jay
Rahimi, F. Jay Rahimi for Defendant and Appellant.
Huarte Appeals, Anne M. Huarte for Plaintiffs and
Respondents.
___________________________________
In 2006, Currency Corporation loaned $6,500 to Maibell
Page, the transaction memorialized by a promissory note that
contained an attorney fees provision. A dispute arose, and Page
assigned her rights against Currency Corporation to Wertheim
LLC.
Wertheim then initiated legal proceedings against
Currency Corporation spanning 15 years. Those proceedings
branched into an arbitration portion—which has itself spun off
three lawsuits and resulted in four appeals (including this one)—
and a separate lawsuit.
The arbitration portion of the dispute is now over. In it,
Wertheim achieved nothing.
Currency Corporation and its affiliates sought attorney fees
incurred in the arbitration portion of the dispute, which the trial
court granted in the amount of $1.2 million.
Wertheim contends the court abused its discretion in
awarding fees to Currency Corporation and its affiliates. We
disagree, and therefore affirm.
BACKGROUND
A. Loans
Parviz Omidvar and his relatives, Oliver and O’Neil
Omidvar, and their company, Tiffany Ventures, LLC (the
Omidvar parties), along with Currency Corporation (we will refer
to the Omidvar parties and Currency Corporation collectively as
“Currency”), loaned money at high interest rates to elderly artists
who owned royalty rights. In exchange, the artists would assign
their royalties to Currency. Currency made some 80 loans to
Maibell Page, the widow of Eugene Page, a successful songwriter.
Maibell assigned to Currency the royalty rights she derived
from Eugene.
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1. The June 2006 Note
On June 2, 2006, Currency made the loan that is the
subject of this and three related actions. As evidenced by a
promissory note (the June 2006 note), Currency loaned Maibell
Page $6,500 for six months at an interest rate of two percent
compounded every 10 days, with an administrative fee of 10
percent.
The June 2006 note contained an arbitration clause and
three attorney fees provisions.
The first fee provision stated: “[I]n connection with any
claim or dispute arising out of or relating to this Note, including
any litigation, arbitration or other proceeding alleging a breach of
the terms of this Note, the prevailing party shall recover . . .
reasonable attorneys’ fees and costs incurred by such party
prosecuting or defending such claim or dispute.”
The second provision stated: “The losing party shall
reimburse the prevailing party for its reasonable outside
attorneys’ fees and costs incurred with respect to [any]
Arbitration proceeding.”
The third attorney provision stated: “Borrower shall
reimburse [Currency Corp.] for . . . reasonable attorneys’ fees,
expended or incurred by [it] in any arbitration or otherwise in
connection with (a) . . . enforcement of the Loan Documents,
including . . . rendering of legal advice as to the Holder’s rights,
remedies and obligations under the Loan Documents,
(b) collecting any sum which becomes due to the Holder under
any Loan Document, (c) any proceeding for declaratory relief, any
counterclaim to any proceeding or any appeal, or (d) the
protection, preservation or enforcement of any right or remedies
of the Holder.”
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2. Second Assignment
In 2006, Page assigned to David Pullman, as principal of
Wertheim, LLC, the royalty rights she had already assigned to
Currency, as well as any causes of action she might have against
Currency.
Pullman/Wertheim and Currency then entered into a legal
dispute over Page’s royalty stream, each contending the other
made a widespread practice of swindling the gullible elderly.
(E.g., Currency Corp. v. Wertheim (May 20, 2011, B222851)
[nonpub. opn.] (Currency I).)
The dispute took two tracks—an arbitration track and a
lawsuit track. (The arbitration track itself spun off three
lawsuits.) This appeal concerns only the arbitration track.
B. Arbitration Track
On June 8, 2009, Wertheim filed a form demand for
arbitration with the American Arbitration Association, alleging
causes of action against Currency for fraud, breach of contract,
and elder abuse. Wertheim contended that each of the scores of
transactions between Maibell Page and Currency was subject to
the arbitration clause found in the June 2006 note. It demanded
$5 million.
1. Instant Lawsuit to Enjoin Arbitration: LASC Case
No. BC417798
A month later, on July 14, 2009, Currency filed the instant
lawsuit, Los Angeles Superior Court (LASC) case No. BC417798,
against Page and Wertheim for declaratory and injunctive relief,
seeking to enjoin arbitration or confine it to the June 2006 note.
2. Cross-Complaint
Page and Wertheim cross-complained against the Omidvar
parties only (not Currency Corporation) for fraud, breach of
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fiduciary duty, and racketeering, alleging the Omidvar parties
were Currency Corporation’s alter egos.
3. Arbitration Award
Meanwhile, the arbitration panel awarded Wertheim
$672,122 against Currency Corporation only, which the superior
court confirmed.
4. Collection Litigation: LASC Case Nos. BC444248
and BC441026
Wertheim attempted to collect on the arbitration award,
both in the instant lawsuit and by filing an enforcement action,
LASC case No. BC444248, against Currency Corporation, the
Omidvar parties (as alter egos of the Currency Corporation), and
approximately 50 third-party royalty payors.
Currency Corporation and Parviz Omidvar responded by
filing a declaratory relief action to block enforcement, LASC case
No. BC441026.
The trial court consolidated the enforcement and counter-
enforcement actions, and deemed them related to the instant
lawsuit.
5. Currency II
In 2013, we held that only the June 2006 note contained an
arbitration clause, and that note pertained only to one loan.
Therefore, the arbitrators exceeded their authority by rendering
an award on 79 other loans made by Currency to Page.
Accordingly, we reversed the judgment confirming Wertheim’s
arbitration award and directed the trial court to vacate it.
(Currency Corp. v. Wertheim (Sept. 30, 2013, B240444) [nonpub.
opn.] (Currency II).)
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6. Remand Proceedings
Upon remand, the trial court dismissed the consolidated
enforcement and counter-enforcement actions, and Maibell Page
dismissed her cross-complaint. (Wertheim had already been
dismissed from the cross-complaint for lack of standing.)
Wertheim moved for an order directing the original
arbitrators to affirm their findings and fashion a new award in
Wertheim’s favor. However, the trial court observed that because
Currency’s complaint sought only to enjoin or limit arbitration,
and the cross-complaint had been dismissed, our ruling in
Currency II effectively ended the lawsuit. Therefore, the court
placed Wertheim’s motion off calendar.
On January 8, 2015, the court entered judgment in favor of
“Currency Corp.” and “Parviz Omidvar, Oliver Omidvar, O’Neil
Omidvar and Tiffany Ventures, LLC,” declared “Currency” to be
the prevailing party, and stated it would consider the entitlement
of “Plaintiff Currency Corp. and Plaintiffs and Cross-Defendants
Parviz Omidvar, Oliver Omidvar, O’Neil Omidvar and Tiffany
Ventures, LLC” to attorney fees upon their submission of a
memorandum of costs and motion to recover them.
7. Currency III
Wertheim appealed from the judgment, contending the
matter should be ordered back to arbitration for a revised award.
We disagreed, holding: “The remand disposed of all issues raised
by Currency’s complaint, as Currency had sought only to enjoin
arbitration or, in the alternative, to limit its scope to the June
2006 note. The trial court therefore properly dismissed the
complaint.” (Currency Corp. v. Wertheim (May 30, 2018,
B262441, p. 8) [nonpub. opn.] (Currency III).)
Wertheim also contended the trial court erred in declaring
Currency to be the prevailing party. We disagreed: “Currency II
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granted the relief Currency sought by limiting arbitration to the
June 2006 note. Therefore, the trial court was well within its
discretion to designate Currency the prevailing party.” (Currency
III, supra, B262441, at p. 9.)
8. Attorney Fees
While Currency III was pending, Currency Corporation and
the Omidvar parties moved for attorney fees incurred in: (1) the
instant lawsuit to enjoin arbitration; (2) arbitration proceedings;
(3) proceedings to vacate the arbitration award; (4) Currency II;
(5) the first remand proceedings; (6) Currency III; (7) the second
remand proceedings; (8) the consolidated enforcement actions;
and (9) defense against the cross-complaint in this action during
the 10 months it was consolidated with another lawsuit, post.
They supported the motion with invoices from nine attorneys who
had worked on the case over six years and declarations from
eight of them. Currency’s evidence indicated that its attorneys
spent 4,109.46 hours in this litigation, at an average hourly rate
of $301, resulting in a total fee bill of $1,237,501.
The trial court granted the motion, awarding the Currency
parties $1,237,501.00, jointly and severally against Wertheim,
LLC and “Christopher Eugene Page, Trustee.”
Wertheim appeals from that post-judgment fee order.
C. Lawsuit Track: LASC Case No. BC530925
In December 2013, Wertheim and Page filed an
independent lawsuit against Currency, LASC case No.
BC530925. At Wertheim’s request, the trial court consolidated
that case with the instant lawsuit, but 10 months later entered
final judgment in this lawsuit and, over Wertheim’s objection,
severed the cases. The parties report that judgment was entered
in case No. BC530925 on December 16, 2015. (As noted above,
7
this appeal concerns only the arbitration track of the
Wertheim/Currency dispute, not the BC530925 lawsuit.)
DISCUSSION
Wertheim contends: (1) Any fee award should be limited to
litigation on the June 2006 note alone; (2) respondents were not
the prevailing parties; (3) the fee award was unsupported by
substantial evidence; and (4) the amount of fees incurred was
unreasonable.
A. Applicable Law
“Except as attorney’s fees are specifically provided for by
statute, the measure and mode of compensation of attorneys . . .
is left to the agreement, express or implied, of the parties . . . .”
(Code Civ. Proc., § 1021.)
“In any action on a contract, where the contract specifically
provides that attorney’s fees and costs, which are incurred to
enforce that contract, shall be awarded either to one of the
parties or to the prevailing party, then the party who is
determined to be the party prevailing on the contract, whether he
or she is the party specified in the contract or not, shall be
entitled to reasonable attorney’s fees in addition to other costs.”
(Civ. Code, § 1717, subd. (a).)
When an attorney fee provision encompasses fees incurred
in connection with claims or disputes relating to the contract, fees
may be awarded not only as to the contract claim, but also as to
related claims. (Maynard v. BTI Group, Inc. (2013) 216
Cal.App.4th 984, 993.)
Contractual fees may be recovered as costs. (Code Civ.
Proc., §§ 1033.5, subd. (a)(10)(B), 1032, subd. (b).)
“[T]he primary method for establishing the amount of
‘reasonable’ attorney fees is the lodestar method. The lodestar
8
(or touchstone) is produced by multiplying the number of hours
reasonably expended by counsel by a reasonable hourly rate.”
(Lealao v. Beneficial California, Inc. (2000) 82 Cal.App.4th 19, 26
(Lealao).) Once the trial court has fixed the lodestar, “it shall
consider whether the total award so calculated under all the
circumstances of the case is more than a reasonable amount and,
if so, shall reduce the [Civil Code] section 1717 award so it is a
reasonable figure.” (Sternwest Corp. v. Ash (1986) 183
Cal.App.3d 74, 77.) The lodestar may be adjusted at the
discretion of the trial court “after consideration of a number of
factors, including the nature of the litigation, its difficulty, the
amount involved, the skill required in its handling, the skill
employed, the attention given, the success or failure, and other
circumstances in the case.” (Melnyk v. Robledo (1976) 64
Cal.App.3d 618, 623-624.)
The trial court has broad authority to determine the
amount of reasonable attorney fees. (PLCM Group, Inc. v.
Drexler (2000) 22 Cal.4th 1084, 1095.) We review a court’s
determination under the abuse of discretion standard. (Lealao,
supra, 82 Cal.App.4th at p. 25.) “ ‘ “The appropriate test for
abuse of discretion is whether the trial court exceeded the bounds
of reason. When two or more inferences can reasonably be
deduced from the facts, the reviewing court has no authority to
substitute its decision for that of the trial court.” ’ ” (Goodman v.
Lozano (2010) 47 Cal.4th 1327, 1339.)
The “ ‘ “experienced trial judge is the best judge of the value
of professional services rendered in his court . . . .” ’ ” (Chavez v.
Netflix, Inc. (2008) 162 Cal.App.4th 43, 64.) Even if he or she did
not preside over the trial, a trial judge has a unique familiarity
with the value of services in the community and the skill and
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time commitments necessary to litigate specific types of cases.
Thus, “while [the trial judge’s] judgment is of course subject to
review, it will not be disturbed unless the appellate court is
convinced that it is clearly wrong.” (Ibid.)
B. The Scope of Fees
Here, the first fee provision in the June 2006 note stated:
“[I]n connection with any claim or dispute arising out of or
relating to this Note, including any litigation, arbitration or other
proceeding alleging a breach of the terms of this Note, the
prevailing party shall recover . . . reasonable attorneys’ fees and
costs incurred by such party prosecuting or defending such claim
or dispute.”
Although the June 2006 note was the only one containing
an arbitration provision, Wertheim expanded arbitration beyond
that note by claiming it was part of a unified transaction, and its
arbitration provision applied to the 79 other notes in the
transaction. All litigation that resulted from the arbitration was
incepted and maintained either to pare back or preserve this
claim. Therefore, the entire arbitration track—including the
instant lawsuit and cross-complaint, the arbitration proceedings
and challenges thereto, both prior appeals and this one, all
proceedings upon remand, and the enforcement actions—related
to and arose from the June 2006 note. All fees incurred on that
track were thus recoverable by the prevailing party.
Wertheim argues Currency is entitled to recover fees
incurred only in actions “brought on the $6,500 Note.” We
disagree. The fee provision did not limit fees to those incurred in
litigating the June 2006 note, but expanded them to those
incurred in any litigation “arising out of or relating to” that note.
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Wertheim argues that fees may be recovered under the
reciprocity provision of Civil Code section 1717 only where the
action had a reasonable chance of success. Because its alter ego
allegations against the Omidvar parties in the cross-complaint
had no chance of success, Wertheim argues, the Omidvar parties
cannot recover fees incurred in defending against the cross-
complaint.
The argument is without merit. Under Civil Code section
1717, the prevailing party is entitled to recover fees “so long as
the party pursuing the lawsuit would have been entitled to
attorney’s fees had it prevailed. [Citations.] . . . [I]t would be
inequitable to deny attorney’s fees to one who successfully
defends, simply because the initiating party filed a meritless
case.” (Rainier National Bank v. Bodily (1991) 232 Cal.App.3d
83, 86.)
C. Currency Corporation, Parviz Omidvar, Oliver
Omidvar, O’Neil Omidvar, and Tiffany Ventures, LLC are
the Prevailing Parties
Wertheim argues there has never been a finding that
Currency is the prevailing party in this case. It is incorrect. In
January 8, 2015, the trial court entered judgment in favor of
“Currency Corp.” and “Parviz Omidvar, Oliver Omidvar, O’Neil
Omidvar and Tiffany Ventures, LLC,” and declared “Currency” to
be the prevailing party. Although the court did not explicitly
define “Currency,” its use of the term “Currency Corp.” when
referring to the corporation, and “Parviz Omidvar, Oliver
Omidvar, O’Neil Omidvar and Tiffany Ventures, LLC” when
referring to the other parties, implied that the term “Currency”
meant all parties collectively. (The judgment’s inconsistent
practice of alternately individuating and collectivizing the parties
11
resulted from the judge or clerk interlineating an otherwise
attorney-prepared document.) This implication is bolstered by
the fact that the court invited all plaintiffs to submit a motion for
attorney fees, which it would not have done had it not deemed
them all to be prevailing parties.
We affirmed this implied prevailing party determination in
Currency III.
Wertheim argued in Currency III, and repeats here, that
Currency cannot be deemed the prevailing party because it filed
this action “solely” to enjoin the arbitration, and no ruling has yet
precluded arbitration on the June 2006 note—Currency II simply
confined arbitration to that note. This misstates the record. As
we observed in Currency III, although Currency sought to enjoin
arbitration altogether, it also prayed in the alternative “that the
arbitration . . . be limited in scope to . . . the specific Promissory
Note at issue,” i.e., the June 2006 note. Because Currency
achieved this alternative objective, we held, the trial court
properly deemed it the prevailing party. We will not revisit that
issue here.
D. Substantial Evidence Supported the Fee Award
Wertheim observes that the fees in this case were incurred
in four different lawsuits, plus an arbitration and two appeals,
each involving both contract and non-contract claims and
numerous parties, most of whom—the third parties named in the
enforcement actions—were not party to the June 2006 note. It
argues insufficient evidence supported the fee award because no
admissible evidence indicated how attorneys fees were actually
apportioned. We disagree.
To the extent that shared counsel engage in litigation
activity on behalf of a second party for whom fees are not
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recoverable, the court has broad discretion to apportion fees.
(Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129.) A
court may apportion fees even where the issues are connected,
related or intertwined. (El Escorial Owners’ Assn v. DLC
Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1365.) However,
the court need not apportion fees where claims are so intertwined
that separation of time is “impracticable, if not impossible” to
achieve. (Abdallah v. United Sav. Bank (1996) 43 Cal.App.4th
1101, 1111.)
Here, all respondents ultimately prevailed on all claims in
all phases of litigation on the arbitration track. These claims
were all inextricably bound to one issue: whether arbitration
should proceed as to one note or 80 notes. Therefore, we conclude
it was within the trial’s discretion not to apportion fees as to
respondents, cases, or issues.
Wertheim appears to argue the fee award was unsupported
by sufficient evidence because some of respondents’ evidence was
inadmissible. We disagree. The award was supported by
invoices from nine attorneys who worked on the case,
declarations from eight of them, and the declaration of Oliver
Omidvar. That other evidence was inadmissible does not render
1
these declarations nugatory.
E. Other Arguments
1. Jurisdiction
Wertheim argues the trial court had no jurisdiction to
award attorney fees incurred in the creditor cases, but supports
1
Currency’s motion to strike portions of Wertheim’s reply
brief is denied.
13
the argument with no reasoning or authority. We therefore deem
it forfeited. (In re S.C. (2006) 138 Cal.App.4th 396, 408.)
2. Timeliness
Wertheim argues that Currency’s fees motion was filed
more than 180 days after Page dismissed the cross-complaint,
rendering it untimely as to any fees incurred in defending against
the cross-complaint. We disagree.
“[T]he ‘outside’ time limit for claiming prejudgment
statutory attorney fees” is the entry of a final judgment.
(Carpenter v. Jack in the Box (2007) 151 Cal.App.4th 454, 468.)
“ ‘Where a complaint and cross-complaint involving the same
parties has been filed, there is no final appealable judgment until
both have been resolved.’ ” (Westamerica Bank v. MBG
Industries, Inc. (2007) 158 Cal.App.4th 109, 132.) Here, no final
judgment existed on the cross-complaint after it was dismissed
because all parties to it remained parties in the original
complaint. (Ibid.)
3. Case No. BC530925
Wertheim argues the trial court lacked jurisdiction to
award attorney fees in this case for work performed in case No.
BC530925, but admits it is unclear whether fees were actually
awarded here for work done in BC530925. Under that
circumstance, we have no basis upon which to conclude the trial
court erred.
4. The Mayer Brown Law Firm
The trial court awarded Currency $209,123 in fees incurred
for work performed by the law firm Mayer Brown, which was
disqualified on June 28, 2013 in one of the enforcement cases,
case No. BC441026, due to a conflict of interest involving
representation by one of its former attorneys and a
14
Wertheim/Pullman affiliate 12 years earlier. Wertheim argues
the court abused its discretion in awarding fees for work done by
Mayer Brown. We disagree.
“California law does not establish a bright-line rule barring
all compensation for services performed subject to an improperly
waived conflict of interest, no matter the circumstances
surrounding the violation.” (Sheppard, Mullin, Richter &
Hampton, LLP v. J-M Mfg. Co. (2018) 6 Cal.5th 59, 89.) Whether
fees should be awarded is left to “the discretion of the trial court,
to be exercised in light of all the circumstances that gave rise to
the conflict. . . . ‘Considerations relevant to the question of
forfeiture include the gravity and timing of the violation, its
willfulness, its effect on the value of the lawyer’s work for the
client, any other threatened or actual harm to the client, and the
adequacy of other remedies.’ ” (Id. at p. 94.) We presume the
trial court considered these factors, evaluated the seriousness of
the conflict of interest, and determined whether fees should be
precluded. (See Denham v. Superior Court (1970) 2 Cal.3d 557,
564.) Wertheim offers no argument and adduces no evidence
concerning the gravity of Mayer Brown’s conflict of interest, its
effect on the firm’s work for Currency, any threatened or actual
harm to Wertheim, or the adequacy of other remedies. Under the
circumstances, therefore, we cannot conclude the trial court
abused its discretion in awarding fees for Mayer Brown’s work.
5. The Smith Law Firm
The trial court awarded Currency $269,115 for work
performed by attorney Craig Smith, which reflected his billing
rate of $375 per hour. Smith declared that although he billed
respondents at this rate, he collected only $250 per hour during
the litigation, deferring “the remaining $125 per hour [to be] paid
15
from the recovery of any attorney fees.” Wertheim argues that
Currency therefore incurred fees for work performed by Smith at
a rate of only $250 per hour. We disagree. “ ‘The reasonable
market value of the attorney’s services is the measure of a
reasonable hourly rate. [Citations.] This standard applies
regardless of whether the attorneys claiming fees charge nothing
for their services, charge at below- market or discounted rates,
represent the client on a straight contingent fee basis, or are in-
house counsel.’ ” (Chacon v. Litke (2010) 181 Cal.App.4th 1234,
1260; accord Nemecek & Cole v. Horn (2012) 208 Cal.App.4th 641,
651.)
6. Attorney Jeremy Osher
The trial court awarded Currency $235,807 for work
performed by attorney Jeremy Osher, whose initial declaration in
support of the fees inadvertently omitted the invoices evidencing
them (although they were served on Wertheim), a deficit later
corrected. Wertheim argues the amount is unsupported by
sufficient evidence. We disagree: The amount was supported by
Osher’s declaration and his timely-served-but-belatedly-filed
invoices.
7. Attorney Lawrence Ecoff
The trial court awarded Currency $155,961 for work
performed by attorney Lawrence Ecoff, the invoices for which
were provided only with the declaration of Oliver Omidvar, who
stated he was familiar with the invoices of every firm that
worked for Currency. Wertheim argues this hearsay evidence
was insufficient to support the award.
However, Wertheim failed to include Omidvar’s
declaration in the clerk’s transcript, making meaningful review of
its claim impossible. (See Cal. Rules of Court, rule 8.204(a)(1)(C)
16
[a brief on appeal must “[s]upport any reference to a matter in
the record by a citation to the volume and page number of the
record where the matter appears”].)
If Omidvar merely received Ecoff’s invoices and approved
them, his declaration that Ecoff actually performed the work he
claimed would arguably be inadmissible hearsay. (See
Copenbarger v. Morris Cerullo World Evangelism, Inc., (2018) 29
Cal.App.5th 1, 13 [“An invoice itself is hearsay . . . .” “[I]n order
to be competent evidence under [the business records exception to
the hearsay rule], it must be supported by the testimony of a
witness qualified to testify as to its identity and the mode of its
preparation”].)
However if, as Currency claimed below, Omidvar declared
that he personally oversaw Ecoff’s work, his declaration
supporting Ecoff’s invoices would arguably be admissible under
the business records exception. (See Jazayeri v. Mao (2009) 174
Cal.App.4th 301, 324 [“any ‘qualified witness’ who is
knowledgeable about . . . documents may lay the foundation for
introduction of business records—the witness need not be the
custodian or the person who created the record”].)
Because the record lacks Omidvar’s declaration, it is
impossible for us to review whether the trial court abused its
discretion in impliedly finding that Omidvar’s oversight fell
under the second scenario rather than the first. (See Grail
Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA,
Inc. (2014) 225 Cal.App.4th 786, 798 [trial court has wide
discretion in determining whether proper foundation was laid for
admission of evidence under the business records exception].)
“ ‘It is the burden of the party challenging [a] fee award on appeal
to provide an adequate record to assess error.’ ” (Ketchum v.
17
Moses (2001) 24 Cal.4th 1122, 1140-1141.) Where a challenging
party fails to do so, the trial court’s ruling must be upheld. (Id. at
p. 1142.)
8. Attorney Lawrence Hall
The trial court awarded Currency $49,065 for work
performed by attorney Lawrence Hall. Wertheim argues $2,850
of Hall’s fee was for preparation of a motion to withdraw for non-
payment of fees, which cannot be charged to Wertheim.
Wertheim provides no citation to the record supporting the
argument. Therefore, we deem the claim forfeited.
9. The Fee Award was Not Excessive
Wertheim argues that a $1.2 million fee award in litigation
over a $6,500 note is excessive as a matter of law. We might
agree in principle, but this litigation concerned not just one note,
but Wertheim’s $5 million arbitration claim.
10. The Fees Provision is Not Unconscionable
Wertheim argues that because the June 2006 note was
unconscionable, no fees may be awarded for litigation regarding
it. We conclude that under the circumstances here, the fee
provision itself is not unconscionable as to Wertheim.
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DISPOSITION
The order is affirmed. Respondents are to receive their
costs on appeal.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
*
FEDERMAN, J.
*
Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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