Taylor v. Traylor ( 2020 )

Filed 6/10/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
ANDREW TAYLOR et al., B296537
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. TC028803)
v.
COUNTY OF LOS ANGELES et
al.,
Defendants;
MICHAEL S. TRAYLOR,
Claimant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Michael P. Vicencia, Judge. Affirmed.
Michael S. Traylor, in pro. per., for Claimant and
Appellant.
The Sweeney Firm, John E. Sweeney; Glickman &
Glickman and Steven C. Glickman for Plaintiffs and
Respondents.
No appearance for Defendants.
____________________
Attorney Michael S. Traylor represented a grieving family
for a month. Then they fired him. The family’s new lawyers
asked Traylor for his case files. Traylor refused. He provided the
family no benefit. Yet he demanded $308,000 in attorney fees.
The court correctly awarded less.
We publish to underline that contemporaneous time
records are the best evidence of lawyers’ hourly work. They are
not indispensable, but they eclipse other proofs. Lawyers know
this better than anyone. They might heed what they know.
I
The case stems from the 2016 police shooting of Donta
Taylor. Donta Taylor’s family—his father Andrew Taylor, Donta
Taylor’s fiancée Sherron Oliver, and Oliver’s children—sued Los
Angeles County and the sheriff’s department for wrongful death
and civil rights violations. We call these plaintiffs Taylor unless
context is to the contrary.
For this appeal, the key years are 2016, 2018, and 2019.
In September 2016, shortly after the shooting, Traylor
briefly represented Taylor. But Taylor soon replaced Traylor
with lawyer John Sweeney. Steven Glickman and Glickman &
Glickman later joined Sweeney. These new lawyers asked
Traylor for his case files. If Traylor had any files, he never
turned them over. He never explained why. Traylor did no work
on the case after October 5, 2016.
Sweeney and Glickman filed suit in April 2017 and settled
the case in November 2018 for $7 million. Traylor filed an
attorney’s lien notice.
In October 2018, Traylor gave Sweeney two invoices, one
for Taylor and one for Oliver, for his 2016 work on the case. Both
invoices misspelled Donta Taylor’s name. The invoices were
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internally contradictory. To two decimal points, they
simultaneously and contradictorily claimed Traylor’s total hours
as both 130.00 and 180.00 hours. Each has a one-line entry for
“legal research and investigation.” There was no itemization.
In January 2019, after repeated requests to show his work,
Traylor eventually submitted an invoice along with a newly-
revealed three-page itemization. To one decimal point, this
document claimed a total of 200.0 hours of work. The document
made no effort to square the 200.0 figure with the earlier hourly
sums of 130.00 and 180.00. This triple contradiction remained.
Taylor and Traylor both asked the trial court to decide the
lien issue. Traylor demanded $308,000. Taylor, by contrast,
maintained Traylor was entitled at most to $4,554. Taylor
argued Traylor deserved credit for fewer than 10 hours of client
management work because Traylor had refused to turn over his
files and had provided no client value.
Taylor noted inconsistencies in the hours Traylor claimed.
Declarations from Taylor and Oliver portrayed Traylor as a
lawyer who got himself hired at a time of overwhelming grief,
who provided no counsel, who did no work, and who literally went
fishing during the short-lived retention.
The court held a hearing on March 14, 2019. Traylor hired
no court reporter. The trial court found jurisdiction to adjudicate
Traylor’s lien, granted the lien in the amount of $17,325, and
struck the rest. The minute order provides no other information.
II
We presume an attorney fee award is correct unless the
appellant demonstrates the trial court abused its discretion.
(Rhule v. WaveFront Technology, Inc. (2017) 8 Cal. App. 5th 1223,
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1229 (Rhule).) Traylor claims the court erred in many ways. His
unavailing arguments are as follows.
A
Traylor contends it was an abuse of discretion for the trial
court to refuse to apply the written terms of his retainer
agreements. We cannot say, based on the record Traylor gives
us, the court did any such thing. Rather, it appears the trial
court properly judged Traylor’s evidence to be weak and
discounted it appropriately.
Traylor points to the termination provision of his retainer
agreements with Taylor and Oliver. Each matching retainer
agreement had two ways of calculating what the client owed
Traylor if the client replaced Traylor with new lawyers. The
provisions obligated the client to pay the greater of the following:
(a) the value of Traylor’s time spent on the case at $475 per
hour; or
(b) a portion of the gross recovery determined by a
percentage multiplied by the ratio of Traylor’s hours to the total
hours spent by all counsel.
Both methods required Traylor to quantify his time on the
case. But Traylor never supplied reliable quantification.
Traylor did make claims about his hours on the case, but
his claims were delayed and contradictory.
Traylor’s claims were delayed. Traylor claimed he had
worked from September 2, 2016 to October 5, 2016 and had done
nothing after 2016. Two years later, on October 15, 2018, Traylor
sent Sweeney two invoices—one for Andrew Taylor and one for
Sherron Oliver—with specific hourly totals. In January 2019,
Traylor produced a different invoice with different figures,
accompanied by a three-page billing record.
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Traylor’s claims were contradictory, and in many different
ways.
Traylor’s 2018 invoice to Andrew Taylor contradicted itself.
The invoice listed “52.5 hours of legal research and investigation
re: Dontay Taylor” under the column heading “ACTIVITY.” On
the same page, on the same line, under the heading “QTY” in the
column immediately to the right, Traylor wrote “102.50.” The
same line of the same page of this 2018 invoice thus
simultaneously and inconsistently claimed “52.5” hours and
“102.50” hours for the 2016 work.
Many aspects of Traylor’s billing statements are unsettling.
We begin with the 2018 discrepancy between 52.5 and 102.50
hours.
First, this discrepancy is large. 102.50 is almost, but not
quite, twice as large as 52.5. That degree of imprecision is
considerable.
Second, the claimed level of accuracy is inconsistent: “52.5”
hours claims accuracy to one decimal point; “102.50” hours claims
accuracy to two decimal points. The former implies
recordkeeping accurate to six-minute intervals. The latter
implies recordkeeping accurate to .6-minute intervals, which are
units of 36 seconds. This inconsistency might be minor had
Traylor explained his method of keeping records, but he never
has. This absence of explanation leaves one grasping for clues,
and the clues magnify the doubt.
Third, the large simultaneous discrepancy is unexplained.
In his papers to us, Traylor never mentions or reconciles the
discrepancy between 52.5 versus 102.50 hours.
There is a fourth alert as well. We have been discussing
Traylor’s October 15, 2018 invoice to Andrew Taylor. That same
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day, in the same communication, Traylor revealed another
invoice to Sherron Oliver. This invoice, under the “QTY” column,
claimed “77.50” hours of work for Oliver. Adding 77.50 to 52.5
equals 130.0 hours. Alternatively, adding 77.50 to 102.50 equals
180.00 hours. Both 130.0 and 180.00 are round numbers.
Curiously round, one might say.
There is a fifth red flag. After a delay, Traylor submitted a
three-page billing record dated January 14, 2019. These three
pages list 50 tasks, ranging from .1 hours to 8.7 hours each. Two
pages list entries for “TAYLOR/OLIVER” and total 133.8 hours.
The other page lists entries for “OLIVER” and totals 66.2 hours.
Adding 133.8 and 66.2 totals 200.0 hours.
So by 2019, Traylor had three different claims about his
2016 time on this case: 130.0, 180.00, and (after he heard about
the $7 million settlement) 200.0 hours. Traylor has not explained
this triple inconsistency.
There is a sixth problem. 200.0 is another round number.
The sequence of 130.0, 180.00, and 200.0 hours is a sequence of
three round numbers. That could be merely a curious
coincidence. Or it could create an inference of reverse
engineering: the author chose a target in round numbers, and
then came up with detailed inputs to sum to the target. We
indulge reasonable inferences in support of the trial court’s
ruling. This inference of reverse engineering is reasonable.
There is a seventh difficulty. The January 14, 2019 billing
itemization concerns daily events in 2016: to be precise, from
September 2, 2016 to October 5, 2016. More than two years
elapsed between the supposed events in 2016 and the
recordkeeping in 2019. Traylor never claimed the itemization he
revealed in 2019 was a record he created contemporaneously in
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2016. This claim would be implausible, given Traylor’s 2018
report that his hourly total from 2016 was either 130 or 180 (but
not 200) hours. The reasonable inference is Traylor’s itemization
was not contemporaneous recordkeeping but a time
reconstruction after a delay of years.
For these seven reasons, the trial court would have been
entitled to reject Traylor’s hourly claims as unworthy of belief.
Yet the court did not entirely reject Traylor’s claim and
award him nothing. Nor did the court take Sweeney and
Glickman’s proposal, which would have yielded an award of less
than $5,000. Rather, the court did its best to estimate a
reasonable award for Traylor. The sum was $17,325, which is
supportable under part (a) of the termination provision of his
retainer agreements. This method implies the court estimated
Traylor’s hourly total at about 36 hours. That estimate was
generous to Traylor and nothing he can protest.
As for part (b) of the termination provision, Traylor did not
field all the data needed to compute fees under this provision.
We lack the total hours Sweeney, Glickman, and their firms
devoted to the case. We know from declarations they and their
associates worked at least 1,650 hours. But the declarations do
not identify the total hours worked by all of Taylor’s lawyers.
Nor, as discussed above, did Traylor reliably quantify his own
hours.
The $17,325 award was reasonable. Three factors drive our
conclusion.
First, Traylor never hired a court reporter, so we have no
record of the hearing. Traylor’s decision means he lacks a basis
for identifying and attacking the court’s specific calculation
method, which we presume was correct. (See Rhule, supra, 8
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Cal.App.5th at pp. 1227–1229; cf. Southern California Gas Co. v.
Flannery (2016) 5 Cal. App. 5th 476, 487 [without a reporter’s
transcript, defendant could not demonstrate the size of a fee
award was an abuse of discretion].)
Second, Traylor never gave his case files to Sweeney,
Glickman, Taylor, or Oliver. Traylor’s inaction was unexplained
and improper. (Cf. Rules Prof. Conduct, rule 1.16(e)(1) [upon
termination and at client’s request, lawyers promptly shall
release all client materials and property]; Kallen v. Delug (1984)
157 Cal. App. 3d 940, 950 [lawyer must release client’s case files
after discharge because lawyer’s work product belongs to client].)
This inaction created the inference Traylor had no case files and
did no work—at least, no work of use to anyone.
Third, Traylor never explained the discrepancies in his
supposed recordkeeping. Unexplained discrepancies entitle a fact
finder entirely to reject a witness’s evidence as unreliable. (Cf.
CACI No. 5003 [once you decide a witness was untruthful about
something important, you may disbelieve that witness entirely].)
Given these three factors, the court’s decision to give
something rather than nothing to Traylor was a discretionary act
of grace. There was no error.
B
Traylor contends the trial court abused its discretion by
rejecting the holding in Mardirossian & Associates, Inc. v. Ersoff
(2007) 153 Cal. App. 4th 257, 269 (Mardirossian). The trial court
did not reject this holding, which was that a trial court properly
denied a motion to prohibit attorneys from testifying about the
hours they spent on a case. (Ibid.) The Mardirossian decision’s
evidentiary holding was entirely correct: the Evidence Code does
not bar lawyers from testifying from personal knowledge about
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what they have done. (Ibid.) Here the issue is different: the
propriety of the fact finder’s credibility call. The trial court was
fully entitled to discount Traylor’s testimony.
Mardirossian concerned the admissibility and not the
weight of evidence. (Mardirossian, supra, 153 Cal.App.4th at p.
265.) A client named Ersoff discharged his lawyers and sought to
pay them nothing for their work. (Id. at p. 263.) The trial court
set a jury trial to determine the hours the lawyers had worked on
the matter and whether that number of hours was reasonable.
(Id. at p. 264.) Before trial, Ersoff moved in limine under
Evidence Code sections 350 and 352 to bar each lawyer’s
testimony. (Mardirossian, supra, 153 Cal.App.4th at p. 265.)
Ersoff argued the deposition testimony showed the contingency-
fee lawyers had kept no time-records memorializing time spent
on a case. (Ibid.) Ersoff claimed this meant their testimony
necessarily would be “‘incompetent and insufficient,’” because
their estimates were “false and absurd” and admission of the
testimony would be unduly burdensome. (Ibid.) The trial court
rejected this motion in limine. (Ibid.) The Court of Appeal
affirmed on unimpeachable logic: the lawyers proposed to testify
from personal knowledge; their testimony was relevant and had a
proper foundation; and the trial court’s decisionmaking about
Evidence Code section 352 had been well within its sound
discretion. (Mardirossian, supra, 153 Cal.App.4th at p. 269.)
In the course of this ruling, the Mardirossian court stated
that, “[c]ontrary to Ersoff’s contention, there is no legal
requirement that an attorney supply billing statements to
support a claim for attorney fees.” (Mardirossian, supra, 153
Cal.App.4th at p. 269.) We completely agree. But it is incorrect
to conclude from this ruling, as Traylor has, that a fact finder
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may not consider the absence of contemporaneous time records
when evaluating lawyers’ evidence. At oral argument, Traylor
summarized his misreading of Mardirossian by saying the case
“lowered the bar” for fee requests. It did not.
Whether evidence is admissible is different than whether it
is good. For instance, my eyewitness account of a car crash I saw
years ago may be admissible if it is relevant and based on my
personal knowledge. But admissibility does not imply my
testimony is reliable. It might be pathetically weak.
Admissible evidence may be weak for many different
reasons. The four usual weaknesses of witness testimony are the
risk of insincerity, the risk of impaired perception, the risk of
memory defects, and the risk of faulty narration. (E.g., Sklansky,
Hearsay’s Last Hurrah, 2009 Sup. Ct. Rev. 1, 15–16.) For
example, my testimony about the car crash might be insincere
because, as a party to the case, I am biased. My perception might
have been impaired because I was texting and oblivious to all
else. My memory may be defective after the passage of time. And
my courtroom narration may be faulty if public speaking ties my
tongue.
Fact finders can give different weights to different kinds of
evidence. Suppose a nearby camera also captured the car crash.
That evidence may also be admissible but far superior to my
testimony. The camera’s video can be unbiased, unblinking,
unchanging, and clear. The single video can be worth a thousand
of my poor words.
Both are admissible. One is weak. The other is worthy.
So too with evidence about time spent on a case.
Lawyers can testify from memory to the hours they devoted
to a case. That testimony, based on personal knowledge, can be
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relevant and admissible. But that evidence may be of poor
quality. Witnesses can be prone to bias when their own
paychecks are at stake. And every lawyer who has kept time
sheets knows delays in recordkeeping diminish accuracy. If you
are a month late, it is hard to reconstruct a bygone day in six-
minute intervals. Now increase the delay to two years. Perform
this thought experiment: what were you doing two years ago
today, down to six-minute intervals? These two risks aggravate
each other: unless you kept detailed contemporaneous records
according to some reliable method, common experience will lead
observers to regard your tardy and self-serving six-minute claims
as largely fictional.
For this reason, wise lawyers keep accurate time records.
(E.g., Tuft et al., Cal. Practice Guide: Professional Responsibility
(The Rutter Group 2019) ¶ 5:1049 [“Pinpointing ‘billable hours’
spent on a ‘partially performed’ case is essential to fixing the
proper ‘pro rata contract share’ fraction. Thus, it behooves
contingent fee attorneys to keep accurate time records for services
rendered.”].)
Contemporaneous time records surely are a bother to keep.
But people paying those bills are entitled to care about accuracy.
At hundreds of dollars an hour, minutes here and minutes there
add up. Accuracy is a professional virtue and a systemic concern.
The public is entitled to confidence the justice system is just as
careful about getting legal bills right as it is about getting
everything else right. And exact clocks and timekeeping software
have made it rather easy to be accurate—extremely accurate.
So Mardirossian was obviously right to rule a lawyer could
testify about time on a case without billing records. But it
misunderstands Mardirossian to claim it as a reason for skipping
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contemporaneous record keeping. You can take that chance if
you dare. Perhaps you are confident no client will ever fire you.
But if the unexpected happens, some fact finder may put you to
your proof. In that situation, you will appreciate your
contemporaneous time records.
The trial court in this case was entitled to discount
Traylor’s belated and contradictory claims about his time on the
case. Its skepticism was proper under Mardirossian.
C
The other issues are insubstantial.
Traylor asserts the trial court improperly released Sweeney
and Glickman’s award of fees to them. Because his opening
appellate brief provided no argument or authorities on this issue,
Traylor forfeited it.
Traylor claims the trial court lacked jurisdiction to resolve
his lien claim in the underlying case. Traylor never contested the
trial court’s authority until this appeal. Rather, Traylor filed ex
parte and motion papers asking the court to resolve his lien
claim. Traylor thus forfeited this objection. (See Lovett v.
Carrasco (1998) 63 Cal. App. 4th 48, 55.)
Traylor mentioned quantum meruit in one sentence of his
opening brief but disclaimed this theory in his reply, stating “no
such contention has been made.”
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DISPOSITION
We affirm the trial court’s order and direct Traylor to pay
the respondents’ costs.
WILEY, J.
We concur:
GRIMES, Acting P. J.
STRATTON, J.
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