Recent Family Law Cases
[Opinions available at: http://www.courts.ca.gov/opinions-slip.htm]
FAMILY LAW (current through 3/20/2021)
By: Michelle L. Kazadi, CFLS
Attorney’s Fees and Costs
David S. Karton et al. v. Ari Design & Construction Inc., et al.
3/9/21, CA 2/8: B298003
Petitioner/Appellant had a dispute with his home remodeling contractor, Defendant/Appellee, Ari Design and Construction, Inc. Appellant sued and won a judgment for $133,792.11 plus post-judgment interest. Appellant sought attorney fees of $292,140. The trial court awarded $90,000 in attorney fees.
The trial court order noted its broad discretion to adjust an award downward or to deny it completely if it determined a request was excessive, citing Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 (Ketchum). The trial court order noted the that issues of the case did not appear particularly complex, and the request for fees was vastly in excess of what is reasonable. The court of appeals gives deference to the trial court’s discretion and will not disturb the trial court’s judgment unless it is clearly wrong. The burden is on the objector to show error. (Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 488 (Laffitte).) The appeals court found that the trial court used sound discretion to limit Appellant’s attorney fees to $90,000.
The court gave five good reasons for concluding 600 plus hours was unreasonable. First, the trial court rightly found the questions in the case were relatively simple. Difficult issues require more attorney hours. (Ketchum, supra, 24 Cal.4th at p. 1138.) Simpler questions require fewer. Here the issues were pedestrian: whether a contractor had insurance and a license. Second, the court had an ample basis to conclude the Appellant over-litigated this matter. The trial court did not abuse its discretion by acknowledging this salient point. Third, the trial court fairly attributed some of the overlitigation to Appellant’s personal embroilment in the matter. The court had reason to conclude embroilment undermined objectivity about the appropriate scale of litigation. Fourth, the trial court rightly sought an appropriate relationship between the result achieved and the size of the fee. The size of a judgment is pertinent to rational evaluation of a requested fee. This was strictly a money judgment; there was no injunctive or equitable relief of an intangible value. Fifth, the court correctly noted the incivility in Appellant’s briefing. Civility is an ethical component of professionalism. Civility is desirable in litigation, not only because it is ethically required for its own sake, but also because it is socially advantageous: it lowers the costs of dispute resolution. Incivility can rankle relations and thereby increase the friction, extent, and cost of litigation.
The order is affirmed as to the attorney fee award and remand for further proceedings as to the liability of the surety company Defendant.
Richard Pech v. Thomas E. Morgan, III, et al.
3/11/21; CA 2/3: B300524
Plaintiff/Appellee filed a lawsuit to recover attorney fees incurred while representing Defendant/Appellants in four legal matters. The operative complaint referred to these matters as the failure to maintain case, the insurance case, the mandamus case, and the takings case. The parties executed written retainer agreements for the failure to maintain and insurance cases. As for the mandamus and takings cases, the complaint alleged an implied-in-fact contract existed based upon Plaintiff’s “long history” of providing legal services to Defendants, and the parties’ understanding about the hourly rate for services rendered. The complaint asserted causes of action for breach of contract based on Defendants’ failure to pay Plaintiff’s attorney fees as provided in the fee agreements. Furthermore, Plaintiff filed applications for attachment orders against the Defendants’ assets. The trial court granted the applications for attachment of Defendants’ assets, concluding Plaintiff had established the probable validity of his breach of contract claims. With respect to the failure to maintain and insurance cases, the court found the parties had entered into valid and enforceable fee agreements that complied with Business & Professions Code section 6148’s disclosure requirements. As for the mandamus and takings cases, the court found Defendants had “impliedly agreed to the specified hourly rates [in Plaintiff’s other fee agreements] based on previous work performed by [Plaintiff].” The court rejected Defendants’ contention that the agreements were unconscionable.
Under Business & Professions Code section 6148, in “any case” that does not involve a contingency fee, “in which it is reasonably foreseeable that total expense to a client, including attorney fees, will exceed one thousand dollars ($1,000), the contract for services in the case shall be in writing” and “shall contain all of the following: (1) Any basis of compensation including, but not limited to, hourly rates, statutory fees or flat fees, and other standard rates, fees, and charges applicable to the case. (2) The general nature of the legal services to be provided to the client. (3) The respective responsibilities of the attorney and the client as to the performance of the contract.” (§6148, subd. (a).) While Business & Professions Code section 6148 makes clear that the absence of a valid written or implied-in-fact fee agreement limits an attorney to the collection of a “reasonable fee” for service rendered on a client’s behalf (§6148, subd. (c)), there does not appear to be a similarly clear standard in statutory or case law for determining what fees an attorney may collect in an action based on client’s breach of a valid and enforceable fee agreement. (Leighton v. Forster (2017) 8 Cal.App.5th 467, 490).
The State Bar’s Committee on Mandatory Fee Arbitration (the Committee) issued Advisory 1993-02, which articulates a two-step process, combining principles of contract law and an unconscionability analysis under rule 1.5 of the Rules of Professional Conduct (Rule 1.5), to determine whether and to what extent an attorney is entitled to collect fees as provided in a statutorily compliant fee agreement. The first step is to review the agreement’s terms to ensure the agreed upon fee is not unconscionable under Rule 1.5. The Committee adopted an unconscionability standard for this determination—not unreasonableness—because applying the “reasonableness” standard of review to the terms of a written fee agreement would eliminate the difference between instances where the attorney has entered into a written fee agreement with his or her client, and those where the attorney has failed to do so and is limited to a reasonable fee under Business & Professions Code section 6148. If the fee agreement is not unconscionable, the next step is to review the attorney’s performance under the terms of the agreement. That review, the Committee notes, must account for the covenant of good faith and fair dealing, which is implied in every contract. Thus, under Advisory 1993-02, arbitrators are to apply “a ‘reasonableness’ standard . . . in reviewing the attorney’s performance” under the fee agreement, including an assessment of “whether the attorney used reasonable care, skill and diligence in performing the duties required of the attorney under the contract, that unnecessary, duplicative or unproductive time is not charged to the client, and that the attorney has not performed services that were required as a result of the attorney’s negligence or some lack of ordinary skill or diligence.”
The trial court found the fee agreements in this case were valid under Business & Professions Code section 6148 and the rates specified in the agreements were not unconscionable. Based on these findings, the court concluded “the hourly rates are fixed by contract” and “[n]o… determination of reasonable fees is required in a breach of contract action where the hourly rates are specified.” There is no dispute that the fee agreements in this case were valid and that the rates specified in the agreements were not unconscionable. The trial court further found that Plaintiff made a sufficient prima facie showing that he reasonably performed his obligations under the fee agreements with respect to the unpaid invoices. (Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1119 [evidence that attorney sent clients monthly billing statements that “were not questioned, disputed or otherwise objected to” by clients was “sufficient evidence of the probable validity” to sustain attorney’s prima facie burden on breach of fee agreement claim].)
The orders are affirmed.
DEPENDENCY (current through 3/18/2021)
By: John Nieman
In re Nathan E.
2/22/21, CA 2/1: B306909
The trial court took jurisdiction under W&I §300(a) and (b) and removed the children from parental care and custody. The mother challenged the viability of the court sustaining W&I §300(a), risk of serious physical harm, based on exposure to domestic violence. Agreeing with In re Giovanni F. (2010) 184 Cal.App.4th 594, the appellate court ruled that not only might risk of serious physical harm come from exposure to domestic violence, but that harm from exposure to domestic violence is nonaccidental.
In re I.R.
3/2/21, CA 2/1: B307093
Child was removed from only the father’s custody based upon sustaining a W&I §300(b)(1) petition where domestic violence was the primary underlying issue. There was an alleged, but very minimal, history of domestic violence incidents perpetrated by father and substance use by mother. The substance use was not found to cause significant risk. The evidence showed that there were only 2 clear instances of domestic abuse. The father had no criminal history. The appellate court overturned the removal decision.
In re R.A.
3/11/21, CA 1/2: A161510
The Department failed to locate imprisoned father at the outset of the case. Father, still in a CA prison, was located 13 months into the case. Many months later and shortly after his release, he filed a 388 petition to set aside previous findings and orders based on the earlier failure to properly notice him. The trial court ruled that father failed to present a prima-facie case that setting aside the rulings to date was in the children’s best interests. The appellate court ruled that the trial court abused its discretion by denying father’s 388 petition. The appellate court noted that in the first place, 388 petitions are supposed to be liberally construed in favor of sufficiency. Secondly, when jurisdictional questions are raised by 388 petitions, best interest standards must be viewed differently, as basically without appropriate adjudication the best interests of the children cannot be achieved.
In re F.P.
3/16/21, CA 2/2: B307313
Child was removed from his mother because of physical and emotional abuse. The trial court made a detriment finding to order no visitation that was affirmed by the appellate court. The trial court also delegated to the minor’s therapist when to engage in family counseling. Mother claimed the latter was an improper delegation of judicial authority. Appellate court ruled that it was not an improper delegation of judicial authority because counseling, unlike visitation, was not a statutory right.