Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KC047228, Robert A. Dukes, Judge.
J. Curtis Edmondson for Defendant and Appellant.
Harting, Simkins & Ryan and Richard A. Harting for Plaintiffs and Respondents.
WOODS, J.
Attorney Gary Simkins and the law firm of Simkins & Ryan (collectively Simkins) obtained a judgment following a bench trial in the amount of $11,707.44 against Robert Patterson (Patterson), a former client, for the disputed amount of attorney’s fees and costs incurred in connection with an underlying matter that settled. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The retention of Simkins & Ryan
On May 28, 2003, Patterson retained Simkins to pursue a personal injury claim with respect to injuries sustained as a result of a bar fight with an individual at The Scoreboard Restaurant. Patterson and Simkins entered into a written contingency fee agreement whereby Patterson agreed to pay Simkins legal fees in the amount of 33 1/3 percent of the gross recovery if the matter was resolved prior to trial, arbitration, or mediation and 40 percent of the gross recovery if the matter was resolved during or after trial, arbitration, mediation or other fact-finding preparation had been completed.
On March 31, 2005, mediation of the underlying action began at which time Patterson agreed to settlement of the matter for $65,000. Patterson claims he told Simkins at the mediation he would agree to settle if he received $35,000 “in his pocket” and that Simkins agreed. The underlying case then settled for $65,000.
On May 31, 2005, Simkins presented a settlement disbursal sheet to Patterson. The disbursal sheet included one-third of the gross settlement for legal fees to Simkins, reimbursement for costs, and while the Government Employees Hospital Association (GEHA) asserted a lien on the underlying action for $22,216.87, Simkins was able to negotiate a reduction of the lien to $7,500. Thus, the proposed disbursement of the settlement funds was as follows:
To Simkins for attorney fees
$21,666.66
To Simkins for costs advanced
$ 5,040.78
To GEHA for lien payment
$ 7,500.00
To Robert Patterson
$30,792.56
Based on the foregoing Patterson notified Simkins the disbursement was not acceptable. Patterson claims he entered into a new oral contract with Simkins at the mediation hearing and therefore Patterson felt the settlement should be disbursed as follows:
To Simkins for attorney fees
$15,000
To GEHA for lien payment
$ 7,500
To Robert Patterson
$42,500
Simkins then disbursed the undisputed settlement funds as follows:
To Simkins for attorney fees
$15,000
To GEHA for lien payment
$ 7,500
To Robert Patterson
$30,792.56
The disputed amount totalled $11,707.44 and was held in an attorney-client trust account pending resolution of the fee dispute.
2. Simkins’ Complaint for Declaratory Relief; Patterson’s Cross-Complaint
On October 31, 2005, Simkins filed a complaint for declaratory relief on the written contract against Patterson to resolve the fee dispute. The declaratory relief action was stayed pending completion of nonbinding mandatory fee arbitration.
On February 21, 2006, a new law partnership was formed when Richard Harting and Simkins merged law firms forming Harting, Simkins & Ryan. Mr. Harting began representation of Simkins at a deposition taken by Patterson in September 2006.
Patterson requests we take judicial notice of (1) documents filed with the State Bar and Secretary of State regarding the limited liability partnership status of Simkins & Ryan and Harting, Simkins & Ryan; (2) facts as to whether or not Simkins & Ryan was a legal entity; and (3) makes a motion to reverse the trial court’s decision. We grant only Patterson’s request to take judicial notice of documents regarding the status of Simkins & Ryan and Harting, Simkins & Ryan.
On July 13, 2006, after nonbinding arbitration was held, the arbitrator awarded Simkins the entire disputed amount of $11,707.44. Patterson filed a timely rejection of the arbitration award and requested a trial de novo. Patterson also filed a cross-complaint alleging breach of contract and breach of fiduciary duty. A court trial was set for October 23, 2006.
Prior to trial, the court granted Simkins’ motions in limine to preclude all communications made in the course of mediation pursuant to Evidence Code section 1119 [“all communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential and inadmissible”] and to preclude all evidence of settlement offers.
On October 23, 2006, the date of trial, Patterson asked the trial court to clarify whether communications made after the mediation were admissible, namely two letters sent by Simkins informing Patterson what the net proceeds would be out of the $65,000 settlement. The trial court ruled the letters were admissible but “settlement discussions do not come in.”
3. The trial court’s ruling and motion for attorney fees
The trial court found the written contract was a valid retainer agreement and contract between Simkins and Patterson, the contract entitled Simkins to 40 percent of the gross recovery obtained during or after mediation and that while this recovery was obtained during mediation, Simkins agreed to accept the lesser amount of one-third of the gross recovery. The trial court did not consider evidence as to what was discussed at the mediation because of mediation confidentiality. The trial court did find there was a valid novation based on the disbursal letters to Patterson from Simkins and that Simkins always maintained it would request one-third of the gross recovery. The court further found that Simkins did not breach any oral agreement or fiduciary duty as alleged in the cross-complaint thus entitling Simkins to disburse the disputed settlement funds held in its attorney-client trust account in the amount of $11,707.44.
On December 8, 2006, the attorneys filed a motion to fix attorneys’ fees as costs. The court granted an award of attorney fees in the amount of $9,810 for the services of Richard A. Harting but denied the request for attorney fees to Gary Simkins in representing himself. Patterson filed a timely notice of appeal.
DISCUSSION
Contentions
On appeal Patterson contends (1) “[t]he mediation privilege does not exclude post mediation admissions of an oral attorney-client fee agreement”; (2) Attorney “Simkins breached his fiduciary duty to Patterson by failing to provide a written attorney-client fee agreement”; and (3) the trial court “erred in awarding $9,810 in attorney fees to pro se
Patterson relies on a case which was ordered depublished by the California Supreme Court well before the filing of his opening brief on appeal. This violates the California Rules of Court and is improper. In another case, while only a petition for review had been filed as of the date Patterson filed his opening brief on appeal, that case was also subsequently depublished. In addition, the discussion in Patterson’s brief was unclear and further violated the rules in that citations to statutes and cases were either erroneous or not provided at all. (Cal. Rules of Court, rules 8.1115, 8.204.)
1. The court did not err in excluding all evidence of communications made in the course of mediation
Broadly speaking, an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence. (People v. Waidla (2000) 22 Cal.4th 690, 718.)
Absent an express statutory exception, California law provides that all communications made in the course of mediation are confidential and inadmissible. (Evid. Code § 1119; Foxgate Homeowners Assn. v. Bramalea California Inc. (2001) 26 Cal.4th 1, 15; Rojas v. Superior Court (2004) 33 Cal.4th 407, 424.)
In addressing these evidentiary issues, we examine mediation confidentiality statutes Evidence Code section 1115 et seq. In particular, Evidence Code section 1124 sets forth conditions to the admissibility of oral agreements. An oral agreement made in the course of or pursuant to a mediation can be admitted if the agreement is in accordance with Evidence Code section 1118, all parties to the agreement expressly agree in writing or orally to disclosure of the agreement, or if the agreement is used to show fraud, duress, or illegality to an issue in dispute.
Evidence Code section 1118 defines oral agreement as one that is (a) recorded by a court reporter, tape recorder, or other reliable means of sound recording; (b) the terms of the oral agreement are recited on the record in the presence of the parties and the mediator, and the parties express on the record that they agree to the terms recited; (c) the parties to the oral agreement expressly state on the record that the agreement is enforceable or binding or words to that effect; and (d) the recording is reduced to writing and the writing signed by the parties within 72 hours after it is recorded.
Here, nothing was recorded at the subject mediation. As a result section 1118 cannot be satisfied and all communications made at the mediation in this case are inadmissible. None of the express statutory exceptions set forth above apply to the facts of this case. We conclude, therefore, the trial court did not abuse its discretion in excluding evidence of communications made during mediation of the underlying matter.
However, Patterson contends evidence received after mediation is admissible to prove the existence of a new oral contract between himself and Simkins. Specifically, Patterson claims Simkins sent him two letters after mediation to support his contention that an oral agreement existed “between the parties formed at mediation.” In fact, Pattereson never attempted to have the letters admitted into evidence. In any event, those letters only confirmed Patterson would receive at least $30,000, not $35,000 as Patterson claims, and that Simkins called the mediator to confirm the mediator’s notes.
Moreover, while Patterson alleges a new oral agreement was reached between him and Simkins, he also claims in his brief on appeal the new oral agreement was “entered into at the mediation.” The statutes make it clear any communications made during mediation are confidential absent any exceptions. Here, after mediation ended, there was no recording of an agreement, the terms were not recited on the record in the presence of others, the agreement was not reduced to writing or signed by the parties within 72 hours after recording, and there were no issues of fraud, duress, or illegality.
Patterson relies on Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137 for the proposition that the attorneys in this case failed to obtain a protective order sealing all communications relating to the mediation and therefore several documents after mediation disclosed evidence of an oral attorney-client fee agreement entered into at mediation. This argument is unpersuasive. While mediation ended when the underlying matter settled at mediation in March 2005, it does not follow that a protective order sealing all communications is required. Nor does an exchange of documents after mediation make the agreement reached during mediation admissible “despite the mediation privilege” as Patterson suggests. As pointed out in Wimsatt, “Mediation confidentiality is to be applied where the writing, or statement would not have existed but for a mediation communication, negotiation, or settlement discussion.” (Wimsatt v. Superior Court, supra, 152 Cal.App.4th at p. 160.)
Moreover, Evidence Code section 1126 provides for the protection of confidentiality after mediation ends. That section states: “Anything said, any admission made, or any writing that is inadmissible, protected from disclosure, and confidential under this chapter before a mediation ends, shall remain inadmissible, protected from disclosure, and confidential to the same extent after the mediation ends.” (Evid. Code § 1126.) Patterson has not demonstrated that the communications were anything other than expected routine discussions that occur with most mediations.
2. Sufficient evidence supports the trial court’s finding Simkins did not breach its fiduciary duty to Patterson
Patterson asserts “Simkins had a duty to communicate in writing what Patterson would receive as a result of the modified fee agreement at the mediation” and since Simkins breached its fiduciary duty by not proving a writing the trial court “should have awarded a disgorgement of Simkins[’] attorney fees as the appropriate remedy for breach of fiduciary duty.” Patterson is mistaken.
The scope of an attorney’s fiduciary duty may be determined as a matter of law based on the Rules of Professional Conduct which “together with statutes and general principles relating to other fiduciary relationships, all help define the duty component of the fiduciary duty which an attorney owes to his or her client.” Whether an attorney has breached a fiduciary duty to his or her client is generally a question of fact. (Mirabito v. Liccardo (1992) 4 Cal.App.4th 41, 45; David Welch Co. v. Erskine & Tulley (1988) 203 Cal.App.3d 884, 890.)
Here, the trial court determined the written attorney fee agreement was valid and enforceable. Patterson, having the burden of showing error, has failed to meet his burden of presenting evidence in support of the alleged breach of fiduciary duty. While the court did allow Patterson to introduce into evidence a letter written by him objecting to the disbursal, it rejected as irrelevant a letter sent by Simkins setting forth the medical bills. Furthermore, although Patterson cites to Business and Professions Code sections 6147 and 6148 [requirement that attorney reduce a fee agreement to written form], he omits references to sections 6147 and 6148 which still entitle an attorney to collect reasonable fees in cases of noncompliance. (§ 6148, subds. (b) and (c).)
The trial court did accept evidence that there was a novation to the extent Simkins would accept a lesser fee of 33 1/3 percent of the gross recovery because Simkins had always sought to receive the one-third gross recovery rather than 40 percent of the gross recovery. Any letter from Simkins to Patterson merely informs Patterson what he would net out of the settlement and in no way does Simkins admit Patterson would receive “$35,000 in his pocket.” As such, the trial court’s finding Simkins did not breach a fiduciary duty to Patterson was proper.
In fact, as pointed out by the arbitrator, “[Simkins] competently accomplished [Patterson’s] goal by negotiating a settlement on behalf of [Patterson] with defendant’s insurance company, in a very complex personal injury case,” involving a tortfeasor’s intentional act exclusion by the insurance company, multiple sets of attorneys because the insurance company filed its own declaratory relief action, the tortfeasor’s $1 million IRS debt leaving Patterson to stand in line behind others if a trial of the underlying action had gone forward, and the extensive negotiation of installments payments of the settlement amount. In fact, the Daily Journal covered Simkins’ handling of the underlying case. Patterson himself expressed appreciation for Simkins’ efforts and stated that except for the fee dispute, he found Simkins’ “help to be exceptional.” The fee was in no way unconscionable and, as noted earlier, Simkins agreed to take less than the 40 percent it was entitled to even though the matter settled during mediation.
3. The court did not err in awarding attorney fees to Richard Harting
Patterson contends the trial court erred in awarding attorney fees to Richard Harting, “as pro se counsel,” because Harting is a partner of Harting, Simkins & Ryan. Patterson claims Harting cannot recover fees because Harting receives the same direct benefit of the attorney-client fee agreement with Patterson as does the firm and further that the award of attorney fees to pro se counsel is improper as a matter of law under Business and Professions Code section 6204, subdivision (d).
Business and Professions Code section 6204, subdivision (d) provides “The party seeking trial after arbitration shall be the prevailing party if that party obtains a judgment more favorable than that provided by the arbitration award, and in all other cases the other party shall be the prevailing party. The prevailing party may, in the discretion of the court, be entitled to an allowance for reasonable attorneys’ fees and costs incurred in the trial after arbitration, which allowance shall be fixed by the court. In fixing the attorneys’ fees, the court shall consider the award and determinations of the arbitrators, in addition to any other relevant evidence.”
Richard Harting’s only involvement in this matter is that he represented Simkins at the deposition and in the trial of this matter. Mr. Harting and Simkins merged law firms on February 21, 2006. Neither Mr. Harting nor the newly formed law firm have ever been parties to the action and thus Harting was not representing himself in propria persona.
In Gilbert v. Master Washer & Stamping Co. (2001) 87 Cal.App.4th 212, the court held that an attorney who is represented by other members of the law firm is entitled to recover attorney fees. (Id. at p. 224.) The nonparty members of the firm represent, not their personal interests or even those of their law firm, but the separate and distinct interests of the party attorney himself. (Id. at p. 222.)
Here, the party litigants were actually Gary Simkins, Charles Ryan and Simkins & Ryan. Richard Harting was not a party to the action. Therefore, because Simkins was the prevailing party, the trial court properly granted attorney fees to Richard Harting for legal services provided to Simkins and denied them for Gary Simkins in representing himself or Simkins & Ryan.
DISPOSITION
The judgment is affirmed. Respondents to recover its costs on appeal.
We concur: PERLUSS, P.J., ZELON, J.
While it appears Simkins & Ryan ceased practicing law on February 21, 2006, and the firm of Harting, Simkins & Ryan filed a limited liability partnership with the Secretary of State, it in no way follows that Simkins & Ryan did not continue to exist as a separate legal entity. As a result we reject Patterson’s claim that Simkins & Ryan lacked standing because the entity no longer existed.