WOODS, Acting P. J.
David D. Kim doing business as David D. Kim & Associates, defendant/appellant, ("D. Kim") appeals from a judgment entered on January 13, 2010, in favor of plaintiff/respondent, Jim & Ray Telecom. Inc. ("Telecom") and an order of the court entered on January 29, 2010, denying D. Kim's motion for judgment notwithstanding the verdict ("JNOV").
In capsule format at this time, this is a dispute between an attorney and his former client over the amount of the attorney's fee awarded after collection of the award of the jury in the underlying action in which the representation occurred.
For the reasons hereafter stated, we affirm the judgment and order.
The underlying action is entitled Jim & Ray Telecom, Inc. v. Wang Globalnet, et. al., Los Angeles Superior Court Case No. BC 338757, filed on August 23, 2005, by another attorney and was set for trial in February 2007. Telecom requested D. Kim to substitute in as attorney of record on a contingency fee basis. D. Kim refused and was then offered an hourly fee basis which D. Kim accepted.
The parties entered into a written retainer agreement dated October 20, 2006, and the validity of the agreement has never been in dispute. The agreement states in the first paragraph that D. Kim had complete discretion to assign the work to other attorneys within the firm.
After obtaining a continuance of the trial to May 2007, and then to late June 2007, work began on the case. D. Kim then hired attorney Michael Kim ("M. Kim"), no relation to D. Kim, to assist in the case. D. Kim's mother had been diagnosed with terminal cancer a few months earlier and D. Kim chose to personally care for her for the five months up to her death and completely relied on M. Kim to handle the underlying case. As the trial date approached, D. Kim became dissatisfied with the trial preparation undertaken by M. Kim so D. Kim terminated him two months before trial and after D. Kim's mother had passed away. Trial was eventually re-set for September 23, 2008.
Telecom was repeatedly delinquent in paying fees to the point that by May 2007, the entire retainer deposit had been depleted and Telecom had a balance owing which exceeded $28,000. D. Kim concluded that Telecom was having financial difficulties and D. Kim pondered withdrawal from representation under the 30 day delinquency provision contained in the retainer agreement. D. Kim decided not to "abandon Telecom to the sharks" and agreed to amend the original fee agreement to take an hourly fee against the eventual outcome of the trial rather than on a "pay as you go" basis. Specifically, paragraph 2 of the June 8, 2007, amendment provides that D. Kim would take 40 percent of the eventual recovery, giving a credit for fees already paid by Telecom but subject to the further provision contained in paragraph 3 stating that D. Kim's final fee was to be no less than what he would have earned on an hourly basis, and expressly stating that if the 40 percent recovery came to less than D. Kim would have earned on an hourly basis under the original retainer agreement, the shortfall would be made up from the remainder of the recovery.
The top page of the amendment bears a date of June 7, 2099, while the signature line is dated June 8, 2007. Conflicting evidence was adduced surrounding circumstances pertaining to execution of the amendment and the bills sent thereafter. Appellant testified that he gave the amendment to Mr. Lee on June 7, 2007, to review overnight after thoroughly explaining its contents to Mr. Lee in Korean which was Mr. Lee's native language. Mr. Lee returned the next day, June 8, 2007, to execute the agreement. However, Mr. Lee testified that he signed the amendment at D. Kim's office on the day that the amendment was given to him and that it was not thoroughly explained to him and that he signed the amendment without reading it. Mr. Lee further testified that he did not receive any bills from the office of D. Kim after execution of the June 8, 2007, amendment.
The office manager for D. Kim testified that after a three-months hiatus because of a misunderstanding, she regularly sent bills to Telecom's office address showing the hours accumulated each month.
It is undisputed that Mr. Lee signed the document, that the provisions contained in paragraph 3 of the June 8, 2007, amendment were underlined to draw attention to this provision and signify its importance and that Mr. Lee regularly used his daughter to translate documents for him, that in October 2007, Telecom moved its office and that there is no writing to show that D. Kim ever was informed or notified of Telecom's change of address. It is further undisputed that the bills sent to the address of Telecom were not returned as undeliverable.
Trial of the underlying case did not commence until 14 months after the execution of the June 8, 2007 amendment. D. Kim describes the underlying case as one in which the defendant tried every pretrial maneuver to escape liability, including attempts to hide behind a shell corporation, declaring bankruptcy, cross-complaining against its own employee and engaging in multiple discovery disputes. The underlying case finally went to trial in September 2008, with D. Kim as trial counsel. Not long before trial, D. Kim maintains that he discovered the documentation that Telecom repeatedly assured him was being amassed turned out not to be true as represented. As a consequence, D. Kim contends, a possible seven figure jury verdict in the case did not materialize and the verdict turned out to be for $242,900.05 plus prejudgment interest of $107,052.42.
D. Kim contends that the hours he was forced to expend pushed the hourly fee Telecom had agreed to be paid out of the eventual recovery to in excess of the recovery. D. Kim further contends that he has never claimed that Telecom owed him that portion of the fees that exceeded the recovery, D. Kim maintains that he is entitled to a fee in the amount of the recovery. Telecom then expressed unhappiness with the June 8, 2007, amendment and D. Kim then offered to return the $50,000 Telecom had actually paid in fees prior to D. Kim agreeing to delay collection of his fees until after recovery in the lawsuit, as well as the $20,000 advancement in costs. Telecom declined and instead brought the instant lawsuit.
The instant lawsuit was brought by M. Kim and M. Kim has been co-counsel all the way through the instant matter. The instant lawsuit was filed on January 15, 2009, alleging causes of action for declaratory relief, breach of fiduciary duty, legal malpractice and fraudulent concealment. D. Kim accentuates the causes of action for breach of fiduciary duty and fraudulent concealment as being particularly relevant to this appeal. We examine each cause of action below.
D. Kim maintains that the gravamen of the breach of fiduciary duty cause of action is that the June 8, 2007, amendment was thrust upon Telecom improperly under duress and that the provisions were a breach of D. Kim's fiduciary duty to Telecom and in particular D. Kim's failure to turn over to Telecom $350,774.49 in levied funds from Wang Globalnet's bank accounts.
D. Kim further maintains that the gravamen of the fraudulent concealment cause of action stems from an alleged concealment of the full ramifications of paragraph 3 of the June 8, 2007, amendment and purportedly concealed that D. Kim continued to charge at an hourly rate by failing to provide Telecom with monthly bills after the June 8, 2007, amendment was executed.
Prior to the time that the sheriff turned over the levied funds to D. Kim, Telecom, through M. Kim, attempted twice to obtain a temporary restraining order for D. Kim to place any such levied monies into a blocked bank account and for that money to remain in that blocked account until resolution of the instant lawsuit. The attempt was twice denied by the court and on the final application the denial was with prejudice. Telecom then filed its amended complaint adding causes of action for an accounting and the imposition of a constructive trust. Among the allegations was a claim that D. Kim had received the levied money but had failed to account to Telecom as to the location of the levied funds and that D. Kim had "used, withdrawn, wasted, and/or commingled said judgment funds belonging to Plaintiff for personal use."
On January 23, 2009, D. Kim sought to disqualify M. Kim from acting as Telecom's attorney in this matter on the basis that continued representation of Telecom by M. Kim would place M. Kim in a position of having to disclose confidences obtained while working on Telecom's case on behalf of D. Kim and the fact that M. Kim would be a witness at the instant trial. The application was denied.
Subsequently on November 17, 2009, documents were filed in preparation for trial. The list of witnesses of Telecom included attorney M. Kim. Although there is no reported record of what transpired at the meet and confer conference with regard to the trial documents at the Final Status Conference on November 20, 2009, it is reasonable to assume that considerable debate occurred over M. Kim's inclusion on the witness list because his name was crossed off, and manually reinserted. On Telecom's amended witness list, M. Kim was again listed. The trial judge allowed M. Kim's name to remain on the witness list and allowed him to testify at the time of trial.
On November 20, 2009, at the Final Status Conference, Judge Kwan expressed negative opinions about D. Kim and his case in front of both Telecom's attorney and the attorney appearing on behalf D. Kim and urged the message be conveyed that the court admonished D. Kim to settle. D. Kim took this as a clear indication that Judge Kwan had not been and was not going to be impartial.
On November 30, 2009, D. Kim filed a Statement of Disqualification pursuant to Code of Civil Procedure sections 170.1, subdivision (a)(6) and 170.3, subdivision (c). D. Kim maintains that Judge Kwan violated Code of Civil Procedure section 170.3, subdivision (c)(5) by not following the prohibitions which preclude a judge, who refuses to recuse oneself, from ruling on his or her own disqualification. D. Kim contends that Judge Kwan first refused to hear argument on the Statement of Disqualification and then struck the Statement of Disqualification. D. Kim alleges Judge Kwan waited until nearly 3:00 p.m. on November 30 to so inform the parties, at which time she declared that trial in the matter would begin the next morning. It was pointed out to Judge Kwan that the code gave a litigant ten (10) days to file a writ of mandate over the denial of a Statement of Disqualification. According to D. Kim, Judge Kwan then challenged D. Kim's counsel to bring a writ and have it granted by 10:00 a.m. the next morning and refused to grant a short continuance of the trial to accommodate bringing the writ. D. Kim maintains he had no reasonable opportunity to bring the writ and was thereby forced to begin trial the next morning.
On December 7, 2009, the jury reached a "Special Verdict With Findings of Fact" in response to 13 questions and finding that Telecom had suffered damages in the amount of $374,646.01. On December 8, 2009, the jury reached a "Special Verdict-Phase 2 Punitive Damages" awarding punitive damages to Telecom in the amount of $375,000. The court heard and denied the motion of D. Kim for judgment notwithstanding the verdict on January 29, 2010. Following the conclusion of trial, the court ruled on the declaratory relief action filed by Telecom and ruled as follows on January 13, 2010: "The Court found the attorney's fees($150,000) and costs ($22,112.26) owed to Defendant David D. Kim to be a total of $172,112.26 and therefore reduced the $374,646.01 compensatory damage awarded by the Jury accordingly, leaving $202,533.75 in compensatory damages to Plaintiff Jim & Ray Telecom, Inc." Based thereon, the court adjudged that: "Plaintiff, JIM & RAY TELECOM, INC. recover judgment on the merits against Defendant DAVID D. KIM individually and doing business as DAVID D. KIM & ASSOCIATES in the amount of $202,533.75 in compensatory damages, plus $375,000 in punitive damages on the fraud and breach of fiduciary duty causes of action, for a total of Five Hundred Seventy Seven Thousand Five Hundred Thirty Three and 75/100 ($577,533.75), plus costs [and] attorneys fees. . . ."
D. Kim filed a timely notice of appeal.
D. Kim raises six contentions on appeal as follows:
D. Kim accurately states the standard of review in his appellant's opening brief as follows:
We note initially that the filing of the statement of disqualification by D. Kim came on the eve of trial. We further note that the trial judge did not enjoin D. Kim from taking a writ by its ruling. The trial judge in fact invited D. Kim to take a writ, but refused to stay or delay the trial pending the taking of the writ. Additionally, it was D. Kim who decided to refrain from taking a writ which he certainly could have done during the course of the trial itself. Having failed to avail himself of an opportunity to take a writ, he is in no position to complain about a lack of sufficient time to perfect the writ process. We do not detect any proscription in the writ statutory process that states a writ may not be taken once trial has commenced. We find no error in the ruling of the trial court.
We decline to accept D. Kim's suggestion that his appeal be treated as a petition for writ of mandate. The legislature has provided detailed procedures for acquiring relief from an adverse ruling challenging a judge in Code of Civil Procedure section 170.3. The proper remedy was by way of a petition for writ of mandate which D. Kim elected not to pursue. We find no extenuating circumstances making it appropriate for this court to now consider treating this appeal as one for a petition for writ of review, and we decline to do so. There was no error in this regard.
The testimony and questioning during trial has as its epicenter the actions of D. Kim in cashing a check for $350,774.49 following a levy on the bank accounts of the defendant in the underlying law suit, namely Wang Globalnet, to satisfy a judgment against the defendant. Telecom maintains that D. Kim had no right to cash the check and spend the proceeds in the absence of an attorney's lien allowing him to do so. It is uncontested that neither the original retainer agreement nor the amended agreement contained such a lien. D. Kim admitted that he negotiated the check by signing it and by simulating the signature of a Telecom agent on the check.
During the course of the trial questioning and comments occurred which D. Kim maintains inflamed the jury and should not have been allowed by the trial judge.
At what appears to be a rather cryptic variance argument, D. Kim initially maintains the trial judge allowed extensive inflammatory testimony that D. Kim had deposited a check made out to both D. Kim and Telecom and spent the proceeds. Further, the trial judge allowed M. Kim to call D. Kim disparaging names in front of the jury, namely, that D. Kim was a thief, a forger, a bilker and a fraud. D. Kim maintains that in two instances the trial judge acted on her own when D. Kim's attorney failed to interpose objections, so that the judge on her own interposed objections for D. Kim's attorney, but then remained silent while counsel for Telecom continued in attempts to inflame the jury.
D. Kim complains about a series of comments in which D. Kim's counsel attempted to justify the cashing of the check by stating that a prior trial judge had indicated it was OK to remove the money from trust and spend it. Counsel questioned D. Kim concerning the incident stating "that was a lie, isn't that true? That was an outright lie?" D. Kim responded "No, It's not a lie." Following a 402 hearing, outside the presence of the jury, the trial judge examined the transcript of the hearing from an attempt to obtain a TRO and determined that a limited amount of information could come into evidence to impeach D. Kim. D. Kim then again testified that he thought he was entitled to withdrawal of the client's money from his trust account and spend it because the prior judge said it was alright to do so. The excerpt of the impeachment testimony is as follows:
It is true that the questioning and comments during trial were graphic and descriptive and employed terminology that for want of better words, was common place. But we see nothing in the aforementioned exchange among court and counsel which would require a reversal, particularly in view of the well established principle that counsel are to be afforded wide latitude in the use of language as long as the questioning and arguments are supported by evidence adduced at the time of trial. (See Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 795 ["The right of counsel to discuss the merits of a case, both as to the law and facts, is very wide, and he [or she] has the right to state fully his [or her] views as to what the evidence shows, and as to the conclusions to be fairly drawn therefrom. . . . Counsel may vigorously argue his [or her] case and is not limited to Chesterfieldian politeness."]; People v. Sandoval (1992) 4 Cal.4th 155, 180 [counsel's comments were "based on the evidence and amounted to nothing more than vigorous yet fair argument."].)
We now give D. Kim's variance argument a second look. We fail to detect that there is a material variance between what Telecom pled and proof at time of trial. It would take a quantum leap in logic to rule that there was variance, much less a fatal variance. One need only access the first amended complaint itself to come to this conclusion. The caption of the first amended complaint filed on January 29, 2009, with errata states: "
No variance occurred during the course of the trial.
D. Kim's fourth contention borders on speciousness. He avers that the declaratory relief judgment is void because the jury verdict was based upon the validity of the original retainer agreement which was not before the court thereby denying the trial judge the right or ability to sua sponte validate an agreement that neither party had challenged. But clearly Errata A and B set forth in haec verba the original retainer agreement and the amended retainer agreement. In the absence of a challenge to the validity of the agreement and amendment to agreement, the trial court was well with its authority and jurisdiction to render the declaratory relief sought in Telecom's first amended complaint. We find D. Kim's fourth contention to be meritless.
D. Kim's fifth contention has been resolved as indicated supra in favor of Telecom and no further reasons need to be stated again.
Finally, D. Kim contends that there is insufficient evidence to support the judgment as to the claims of concealment. Telecom asserts that D. Kim concealed his instructions to make checks payable to him as well as his intentions, at the time of the amended retainer agreement to seize funds recovered in the litigation. Sufficient evidence exists in the record to support these claims
Although D. Kim appeals also from the order of the court denying his motion for a judgment notwithstanding the verdict, very little time is committed in his briefing on appeal to substantiate his reasons for believing the trial court committed reversible error in denying the motion. In fact we do not discern that any decisional or statutory authority is discussed by D. Kim in his briefing on appeal. We conclude that the appeal from this denial is devoid of merit.
The judgment and order appealed from are affirmed. Respondent to recover costs of appeal.
We concur:
ZELON, J.
JACKSON, J.
