Filed 8/30/18 Sadr v. Sabet CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

SAEED SADR et al.,

Cross-complainants, Cross-defendants and Respondents,

v.

AZITA SABET,

Cross-complainant, Cross-defendant and Appellant.

G054396

(Super. Ct. No. 30-2012-00615688)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Robert J. Moss, Judge. Affirmed in part and reversed in part.

Pivo, Halbreich, Martin & Wilson and Scott A. Martin for Cross-complainant, Cross-defendant and Appellant.

Law Offices of Mark B. Plummer and Mark Brennan Plummer for Cross-complainants, Cross-defendants and Respondents.

* * *

This case comes to us after attorney fees proceedings following remand. In Sadr v. Sabet (Apr. 5, 2016, G050493) [nonpub. opn.] (Sadr) we reversed a postjudgment order denying attorney fees to cross-complainants, cross-defendants, and respondents Saeed Sadr (Sadr) and Zohreh Jadali (Jadali) and directed the court to award reasonable attorney fees to them, apportioning them if appropriate. (Sadr, at p. 3.) On remand the court awarded Sadr and Jadali $121,400 for attorney fees incurred in the trial court (trial attorney fees) and $19,800 for attorney fees incurred on appeal (appellate attorney fees).

Cross-complainant, cross-defendant, and appellant Azita Sabet (Sabet) appeals from both awards on several grounds. She argues the court erred both in calculating the lodestar and by failing to apportion the trial attorney fees because the issues for which fees were proper were not inextricably intertwined with those for which fees were not recoverable. She claims the attorney fees awarded to Sadr and Jadali “nullify” the attorney fees she recovered as damages in her quantum meruit claim. Finally, Sabet argues the court erred by failing to apportion appellate attorney fees because Sadr and Jadali were only partly successful.

We conclude the appellate attorney fees should have been apportioned and reverse that part of the order. We exercise our discretion to determine the amount of appellate attorney fees and set them at $5,940. The order is otherwise affirmed.

FACTS AND PROCEDURAL HISTORY

Many of the underlying facts are set out in Sadr and we do not repeat them in full. Suffice to say Sabet represented Jadali and Sadr on several matters, with the parties entering into five retainer agreements containing an attorney fee provision. In one matter involving Roya Nematollahi (Nematollahi), after the case was settled, Sabet claimed she had a lien on the proceeds. As a result of conflicting instructions from Jadali and Sabet as to disbursement of the settlement proceeds, an interpleader action was filed. Sabet filed a cross-complaint against Jadali and Sadr for breach of the retainer agreements, fraud, and on common counts to recover attorney fees for her services to them. (Sadr, supra, G050493, at p. 2.) She sought $230,000 as the reasonable value of her services.

Jadali and Sadr then filed a cross-complaint against Sabet with the various causes of action centering on Sabet’s alleged improper billing and Sabet’s alleged misrepresentation of her legal experience. They also pleaded Sabet’s lien was fraudulent, resulting in damages to Jadali’s business because she did not immediately receive the settlement proceeds. (Sadr, supra, G050493, at p. 3.)

After a bench trial, in closing argument Sabet withdrew all of her claims except for the five breach of contract claims and the quantum meruit cause of action. The court ruled all of the retainer agreements were void, finding Sabet had failed to prove her breach of contract claims. It denied her claim for attorney fees pursuant to those contracts. It also found Sabet had not proven her causes of action for fraud and unjust enrichment. The court gave Sabet judgment on her quantum meruit cause of action, awarding just under $56,000. It gave judgment to Sabet on Sadr and Jadali’s cross-complaint. (Sadr, supra, G050493, at p. 3.)

Sadr and Jadali filed a motion for attorney fees, seeking $60,700 and $76,260, respectively. Mark Brennan Plummer (Plummer), counsel for Sadr and Jadali, filed a declaration setting out an itemized explanation of the work he performed, the time spent for each time task, and his hourly rate. Sabet opposed the motion on the ground Sadr and Jadali were not entitled to recover fees because they were not the prevailing parties.

The court denied the attorney fees motion, finding there were no prevailing parties. (Sadr, supra, G050493, at p. 4.) Sadr and Jadali appealed, arguing they were the prevailing parties and entitled to attorney fees. They also challenged the quantum meruit award, claiming Sabet should not have recovered any amount based on her alleged unclean hands. In Sadr, we decided Sadr and Jadali were prevailing parties under Civil Code section 1717 (section 1717) and were entitled to attorney fees. (Sadr, at p. 5.) We also affirmed Sabet’s not quite $56,000 quantum meruit award. (Id. at p. 6.)

After the remittitur issued Sadr and Jadali filed an additional brief in support of their trial attorney fees, incorporating their original motion. The brief also included a lengthy summary of the testimony from the trial, with the purpose of showing the claims in both cross-complaints were based on the same core facts. The brief further argued the “entire case” revolved around Sabet’s enforcement of the retainer agreements, with only a “fallback” argument she was entitled to quantum meruit fees. In addition, it contended the legal malpractice claims against Sabet were solely defensive to counter Sabet’s claims for fees under the retainer agreements.

Sadr and Jadali also filed a motion to recover $19,800 in appellate attorney fees.

Sabet opposed both motions. She challenged the lodestar amount, claiming Plummer’s $400 hourly rate was too high, contending that based on his lack of experience, a Martindale-Hubbell rating, and membership in ABOTA, a $200 rate was more appropriate. Sabet pointed out $200 per hour was the rate the court used in awarding Sabet her quantum meruit fees.

As to the trial attorney fees Sabet asserted the fees relating to her lien should not be allowed because they were not based on the retainer agreements. She further argued that, based on the court’s finding Sadr and Jadali had elected to void the retainer agreements when they filed their cross-complaint, any fees incurred thereafter should be disallowed. Finally, she claimed that if fees were awarded after the filing of the cross-complaint, they should be apportioned because Sabet had prevailed at trial against Jadali and Sadr on their cross-complaint and on the noncontract causes of action on her cross-complaint.

As to the appellate attorney fees Sabet asserted that because in Sadr we awarded only costs on appeal, we intended Jadali and Sadr recover no attorney fees on appeal. She further contended if fees were allowed, they should be apportioned because Sadr and Jadali had been only partially successful on appeal.

In reply, Plummer filed a declaration listing 31 cases he had tried between 2010 and 2016 and stating he had tried “countless more” from 1985 forward. Further, he asserted Sabet had not disputed the summary of the trial testimony or description of the issues litigated. He also argued Sabet had not suggested any basis to apportion fees or any “alternate formula” for calculating fees.

After a hearing the court granted the trial attorney fees motion in part. It denied Jadali’s fees incurred on the interpleader complaint and resolution of Sabet’s lien claim because they were settled and the claim dismissed. It granted the remainder of the request, awarding $121,400. It found the fees were incurred by Sadr and Jadali in prosecuting their cross-complaint against Sabet and defending against Sabet’s cross-complaint. It also found both cross-complaints “involved a common core of facts and/or were based on related defensive legal theories.” Further, it found the contract and noncontract claim issues were “so inextricably intertwined” it would be impossible or impractical to separate the fees incurred.

The court granted the appellate attorney fees motion, awarding the requested $19,800.

DISCUSSION

1. Standard of Review and General Principles

The trial court has broad authority to determine the amount of reasonable attorney fees and we review an award of attorney fees for abuse of discretion. (Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 488.) Sabet has the burden to show the court abused its discretion. (Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5th 162, 169.)

In considering a motion for attorney fees, the court generally starts with the “lodestar,” that is, “the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 (PLCM).) “The reasonable hourly rate is that prevailing in the community for similar work.” (Ibid.) “After arriving at the lodestar figure, the court may then adjust that figure based on a consideration of factors specific to the case to arrive at an amount representing the fair market value for the legal services provided.” (Building a Better Redondo, Inc. v. City of Redondo Beach (2012) 203 Cal.App.4th 852, 870.)

“‘Where a cause of action based on the contract providing for attorney’s fees is joined with other causes of action beyond the contract, the prevailing party may recover attorney’s fees under section 1717 only as they relate to the contract action.’” (In re Tobacco Cases I (2013) 216 Cal.App.4th 570, 586 (Tobacco I).) However, the court has broad discretion in deciding whether to apportion attorney fees. (Maxim Crane Works, L.P. v. Tilbury Constructors (2012) 208 Cal.App.4th 286, 298.) Attorney fees “‘need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed.’” (Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, 829.) In addition, “‘“Apportionment is not required when the claims for relief are so intertwined that it would be impracticable, if not impossible, to separate the attorney’s time into compensable and noncompensable units.’”” (Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1178.) Further, attorney fees “‘“need not be apportioned between distinct causes of action where plaintiff’s various claims involve a common core of facts or are based on related legal theories.”’” (Ibid.)

2. Lodestar Calculation

Sabet contends the court incorrectly calculated the lodestar amount. She maintains she challenged both the number of hours and Plummer’s hourly rate in opposition to the attorney fees motions but the trial court failed to discuss either item. She claims this was an abuse of discretion because it was an “overly deferential approach to the fee request” and “rubberstamp[ed]” the fee request. (Donahue v. Donahue (2010) 182 Cal.App.4th 259, 271.) This argument is unavailing.

First, the trial court was not required to discuss how it arrived at the fee amount. A statement of decision is not required (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140) and there is no case law “requiring trial courts to explain their decisions on all motions for attorney fees and costs, or even requiring an express acknowledgment of the lodestar amount” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 67). “‘In the absence of evidence to the contrary, we presume that the trial court considered the relevant factors.’” (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1250.) “‘“All intendments and presumptions are indulged to support [the order] on matters as to which the record is silent, and error must be affirmatively shown.”’” (Ketchum v. Moses, at p. 1140.) Further, the failure to discuss the factors does not equate to the court being overly deferential.

In addition, Sabet fails in the opening brief to explain why either the hourly rate or the hours are improper. Her mere reference to arguments in the trial court is not sufficient. (See Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 854 [“inappropriate” to incorporate arguments made in trial court documents into brief]; In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 410 [appellate brief should not be “rehash of trial level points and authorities”].) Here there was not even a rehash or an incorporation but merely a reference to her trial court arguments.

In the reply brief, Sabet expands slightly on this claim, relying on the finding in the original statement of decision that the reasonable value of her services was $200 per hour. She suggests a “cursory review[]” of respondents’ brief in this appeal, and the opening and reply briefs and oral argument in Sadr show $400 per hour is excessive. This is the extent of the argument.

All told, Sabet failed to meet her burden to demonstrate the court abused its discretion in awarding attorney fees based on a $400 per hour rate. She has not shown why Plummer’s rate should be reduced to $200. The mere finding the court fixed her rate at $200 per hour in her quantum meruit recovery is not a proper rationale for fixing Plummer’s at that same rate. Thus, we are not convinced the court’s use of $400 per hour was “‘clearly wrong.’” (PLCM, supra, 22 Cal.4th at p. 1095.)

Sabet challenges 40.2 hours of so-called “‘block billing’” for six days of trial preparation. But she does not cite any authority or make reasoned legal argument in support of the claim. This failure forfeits the claim. (Cal. Rules of Court, rule 8. 204(a)(1)(B); Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)

Even on the merits, the argument fails. “Block billing occurs when ‘a block of time [is assigned] to multiple tasks rather than itemizing the time spent on each task.’” (Mountjoy v. Bank of America, N.A. (2016) 245 Cal.App.4th 266, 279.) Here the challenged billing was not block billing because only one task was included in the time entries, i.e., trial preparation. (Ibid.) Moreover, block billing is not “objectionable per se.” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1325.) Sabet has not explained why the block billing for trial preparation was improper.

3. Apportionment of Trial Attorney Fees

Sabet argues the court erred in finding that all of the claims in both cross-complaints were based on a common core of facts and were inextricably intertwined such that fees could not be apportioned. She spends some 50 pages in the opening brief setting out facts, which she contends show the trial did not involve a common core of facts and the claims were not inextricably intertwined. We must disagree. Many of the facts included were minutiae or extraneous information that was completely irrelevant to the issues in the case and confused rather than clarified what was tried. This violated California Rules of Court, rule 8.204(a)(2)(C), which requires an opening brief to set out a summary of “significant facts.” Additionally, some of the facts were not supported by record references, in violation of California Rules of Court, rule 8.204(a)(1)(C), which requires “any reference to a matter in the record” to be supported by a citation to its location. We generally disregard facts and arguments not supported by adequate citations to the record. (Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1294.)

Sadr and Jadali argue the trial was almost exclusively devoted to defending against the retainer agreement/breach of contract claims. We agree. The case essentially involved whether and to what extent Sabet was entitled to attorney fees on the various matters wherein she represented Sadr and Jadali. (Sadr, supra, G050493, at pp. 2-3.) The underlying substance of those various matters, as Sabet set out in her brief, has no bearing on the entitlement to and amount of attorney fees.

Sadr and Jadali’s cross-complaint centered around Sabet’s alleged improper and fraudulent billing, including failure to keep adequate records, overcharging, failing to accurately or timely bill, and failure to credit payments. Additional allegations include Sabet’s misstatement of her experience, her threat “to sabotage” Jadali’s case against Nematollahi and her fraudulent claim she had a lien on the settlement proceeds from that case, damaging Jadali because the settlement proceeds were not paid to her immediately. These essentially deal with the common issues of the quality of Sabet’s services and what she tried to collect from Sadr and Jadali. In sum, Sabet fails to adequately show the issues and claims were not based on the same core facts or inextricably intertwined.

Citing Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407 (Harman 2), Sabet also argues the court should have apportioned the trial attorney fees because Jadali and Sadr had only “‘limited success’” at trial. She argues Harman 2 requires that the initial lodestar determination should exclude time “‘“not ‘reasonably expended’”’ in pursuit of successful claims.” (Id. at p. 417.) Sabet concludes that because Jadali and Sadr did not prevail on their cross-complaint and she prevailed on her quantum meruit cause of action, fees generated on those claims should not be awarded. We disagree.

Harman 2 also stated that if unsuccessful claims are based on the same facts or legal theories no reduction is required. (Harman 2, supra, 158 Cal.App.4th at p. 417.) It also provides apportionment is not required where there are issues common to causes of action where fees are proper and those where they are not, where the issues are inextricably intertwined, or whether there are a common core of facts. (Ibid.) Such is the case here.

Further, we do not agree that an award of fees “under a fee statute must always be commensurate with or in proportion to the degree of success obtained in the litigation. As we stated in Meister [v. Regents of University of California (1998) 67 Cal.App.4th 437], the general rule is that the prevailing party’s degree of success is only one of the factors the trial court may consider in determining the amount of reasonable attorney fees.” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1397.)

Sabet also argues trial attorney fees should be reduced based on voiding of the retainer agreements. In the statement of decision after trial, the court ruled that when Jadali and Sadr filed their cross-complaint against Sabet, they were exercising their option under Business and Professions Code section 6148, subdivision (c) to void the retainer agreements. Sabet concludes that any attorney fees incurred thereafter were in the prosecution of their cross-complaint or in defending the non-contract causes of action in Sabet’s cross-complaint. Not so.

Sabet pursued her contract claims through trial, forcing Sadr and Jadali to defend against them. The retainer agreements contained attorney fees provisions. By defeating the causes of action in which Sabet was seeking to recover under the retainer agreements, Sadr and Jadali became the prevailing parties under section 1717, entitling them to recover attorney fees for that work. (Hsu v. Abarra (1995) 9 Cal.4th 863, 870-871.)

For all these reasons, we conclude the court did not err when it ruled the fees generated on unsuccessful claims or those where attorney fees were not recoverable arose from the same core facts and were inextricably intertwined such that no reduction of trial attorney fees was required.

4. Nullification of Sabet’s Underlying Award

Sabet argues the attorney fees award “nullifies in toto” her entire amount of attorney fees and costs totaling just under $128,500 because the attorney fees awarded to Sadr and Jadali exceeded that amount. She points to Business and Professions Code section 6148, subdivision (c), allowing her a “reasonable fee.” She also cites PLCM, supra, 22 Cal.4th at page 1095 for the principle that “[E]quitable considerations . . . must prevail over . . . the technical rules of contractual construction’” in awarding attorney fees under section 1717. She contends we should order the trial court to award only an “equitable amount of apportioned” (italics omitted) trial attorney fees. This claim is without merit.

Sabet was awarded her reasonable fees for the work she performed in representing Sadr and Jadali in the various matters. Had Sabet not sued on the retainer agreements she would not be liable for any trial attorney fees. The equitable considerations discussed in PLCM have nothing to do with and provide no support for Sabet’s argument. It does not require a reduction of the amount of attorney fees.

5. Apportionment of Appellate Attorney Fees

Sabet argues the court erred by failing to apportion the attorney fees incurred by Sadr and Jadali on appeal. She contends they had mixed results because they prevailed on the issue of their entitlement to attorney fees but lost on the argument Sabet should not recover on a quantum meruit theory because she had unclean hands. We agree.

First, there is no basis, under a contract, section 1717, or any other statute, on which to award fees for appeal of the propriety of the award of quantum meruit damages. (Code Civ. Proc., § 1021; Java, supra, 186 Cal.App.4th at p. 1189 [absent contractual or statutory provision party pays own attorney fees].) Second, there was no finding by the trial court this issue was inextricably intertwined with the issue of Sadr and Jadali’s right to attorney fees for defeating Sabet’s breach of contract claims. And the issues are distinct. Third, Sadr and Jadali did not prevail on their argument against Sabet’s quantum meruit claim.

Respondents’ brief supports our view that Sadr and Jadali are not entitled to recover the entire amount of appellate attorney fees. The record belies their claim their “entire focus” was on whether they were the prevailing parties. They attacked the quantum meruit award, which is a wholly separate issue. (Sadr, supra, G050493, at p. 6.) Their contention they would never have appealed had they not been denied attorney fees is also unconvincing.

Likewise their claim, without benefit of record references, that “no significant time” was devoted to the quantum meruit portion of the appeal in Sadr does not suffice. Thus, the appellate attorney fees must be apportioned.

Under normal circumstances we would remand the matter for the trial court to determine the amount of appellate attorney fees. This is because generally the trial judge is most familiar with the case and the work the lawyers performed. (PLCM, supra, 22 Cal.4th at p. 1095.) However, in this case the trial judge to whom this case is currently assigned did not preside over the underlying action or, obviously, the appeal in Sadr. We have firsthand knowledge of Sadr and the work performed by the attorneys in that appeal. In addition, the record contains Plummer’s time entries for his services on Sadr. Thus, it is appropriate for us to determine the amount of appellate attorney fees. (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 346.) After conducting our analysis we conclude Sadr and Jadali are entitled to recover $5,940 for appellate attorney fees.

6. No Prevailing Party on Appeal

Because the parties had mixed success in this, we exercise our discretion and find neither party prevailed and thus are not entitled to attorney fees for this appeal. (Harman 2, supra, 158 Cal.App.4th at p. 429.)

DISPOSITION

We reverse the award of $19,800 awarded for appellate attorney fees and modify the order to award Sadr and Jadali $5,940 for appellate attorney fees. As so modified the order is affirmed. Each side shall bear its own respective costs on appeal. No party is entitled to recover attorney fees incurred for this appeal.

THOMPSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.