Fourth District, Division One Affirms Award of Fees to a Very Forbearing Attorney, Some Under a Quantum Meruit Theory of Recovery.
Farina v. Wedbush, Case No. D050926 (4th Dist., Div. 1 June 16, 2008) (unpublished) is must reading for those that think that the “no good deed goes unpunished” adage always happens to materialize. Not in this case.
Boiling down the facts, Former Attorney took on a case by Former Clients to relocate above-ground utility lines against well known phone and gas Utilities. Fee letters and amendments were sent as the matter expanded from mere investigation into a formal lawsuit. The litigation was hard fought, with Former Attorney defeating Utilities’ summary judgment motions. However, after a nine-day bench trial, the trial judge found in Utilities’ favor. Former Attorney helped Former Client find appellate counsel and worked on the appeal, which resulted in a reversal of the judgment for Phone Utility. Former Clients did not pay the balance of Former Attorneys’ billings, resulting in a lawsuit by Former Attorney to collect the unpaid receivable. The trial judge awarded Former Attorney almost $106,000, a recovery affirmed on appeal except for a minor reduction for a clerical error.
Former Attorney rebuffed Former Client’s challenges on appeal. They were:
· Former Attorney’s “estimate” of the fees to be incurred was not the equivalent of a “cap” such that $105,000 more was recovered based on the twists and turns in the litigation and Former Clients’ awareness of the changing circumstances.
· Former Clients did not submit any expert testimony to back up their allegation that Former Attorney performed below the standard of care, a fatal omission.
· Former Attorney’s fees were not unconscionable, because she agreed to a reduced rate, testified to the complex nature of the litigation, and often wrote off items to reduce the amount of the bills.
· Former Attorney’s agreement to defer some of her fees depending on the appellate result did not bar recovery when she correctly predicted that the appellate court would reverse—this type of bargain was fully enforceable by its terms.
· Former Attorney was allowed quantum meruit for certain work, valuing her time at $300 per hour. Citing Mardirossian & Associates, Inc. v. Ersoff, 153 Cal.App.4th 257, 272 (2007), the Fourth District in Farina set forth the nonexhaustive factors for evaluating the reasonableness of attorney’s fees for purposes of quantum meruit recovery: (1) the nature of the litigation; (2) the difficulty of the litigation; (3) the amount involved; (4) the skilled required in its handling; (5) the actual skill employed; (6) the attention given; (7) the success or failure of the attorney’s efforts; and (8) the attorney’s skill and learning, including his/her age and experience in the particular type of work demanded. Former Attorney’s hourly rate was deemed reasonable under this test.
Except for a typographical correction of a small amount, Former Attorney—by having good records and showing a willingness to take the stand for purposes of explaining the overall litigation efforts—won a substantial fee award from Former Clients who, while disgruntled, apparently did not rebut that the performed services should be paid.
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