Retainer Agreement, Even If Void, Could Be Considered in Deciding upon Fee Award.
Here is an interesting one from our local Santa Ana court in the “Probate” category.
Lanzone v. Santilli, Case No. G043586 (4th Dist., Div. 3 Apr. 14, 2011) (unpublished) involved a situation where an attorney helped garner an elderly plaintiff a $241,000 settlement in an apparently tricky elder abuse/negligence case, with attorney entitled to a $96,400 fee recovery under a contingency agreement. Plaintiff balked at the settlement unless attorney reduced fees to $8,168, a proposal rejected by attorney. The settlement was eventually enforced and attorney was awarded fees of $70,000 under Probate Code section 3601 and Cal. Rules of Court, rule 7.955(a)(2). Elderly person’s guardian ad litem challenged the fee award on appeal.
The Fourth District, Division 3, in a 3-0 opinion authored by Acting Presiding Justice Rylaarsdam, found that CRC 7.955(a)(2) does not mandate a specific fee and provides that the terms of a representation agreement can be considered, even if it is somehow unenforceable. The trial court did not award fees under the retainer agreement, because the $70,000 award was 29% less than the $96,400 which would have mandated under the fee agreement. Rather, the award was anchored in the general reasonableness factors allowable to gauging fee requests under Probate Code section 3601.
Appellant then challenged the lodestar determination by the trial court, which apparently awarded a $35,000 base but applied a 2 multiplier. No abuse of discretion, said our local appellate court. Only a few attorneys had this type of elder abuse expertise, such that the $350 hourly rate was reasonable. The case involved a great deal of risk, with attorneys having to take this case on a contingency basis given that most elderly persons live on fixed incomes and do not have the money to litigate on a non-contingency basis.
Winning attorney sought sanctions on the ground that appellant’s appeal was frivolous. However, this request was rejected because it was made in respondent’s brief rather than the necessary separate motion which had to be filed and served no later than 10 days after filing of appellant’s reply brief. This procedural gaffe gave the appellate court necessary discretion to deny the request, which it did. (Bak v. MCL Financial Group, Inc., 170 Cal.App.4th 1118, 1127-1128 (2009).)