Judge: Stephen I. Goorvitch, Case: 23STCV12529, Date: 2023-08-21 Tentative Ruling

Case Number: 23STCV12529    Hearing Date: October 9, 2023    Dept: 39

David Marco Weber v. Jay Stuart Rothman

Case No. 23STCV12529

Trial

BACKGROUND

            David Marco Weber (“Weber”) hired Jay Stuart Rothman (“Rothman”), an attorney to represent him in a legal matter.  The case settled, following which the parties had financial disputes.  Rothman filed a complaint in Case Number 23STCV11283 alleging that Weber owes him $1,830.40 in reimbursement for Westlaw legal research fees, and $8,000 in reimbursement for the mediation.  In response, Weber filed the instant case, asserting a single cause of action for declaratory relief.  Weber seeks a judicial determination that the contract is voidable under Business and Professions Code section 6147(b) for failure to comply with section 6147(a), or, in the alternative, that Rothman is not entitled to $9,830.40. 

LEGAL STANDARD

Code of Civil Procedure section 1060 permits “[a]ny person interested . . . under a contract . . . may, in cases of actual controversies relating to the legal rights and duties of the respective partners, bring an original action or cross-complaint in the superior court for a . . . determination of any question of construction or validity arising under the instrument or contract.”  (Code Civ. Proc. § 1060.) 

EVIDENTIARY ISSUES

The Court admitted Exhibit #1—the retainer agreement at issue—pursuant to the stipulation of the parties.  The Court excluded the remaining exhibits (Exhibit #2 through Exhibit #11) under Evidence Code section 352, as well as the testimony of the two proffered witnesses, Plaintiff and Defendant.  The exhibits and witnesses’ testimony have no relevance to the issues before the Court, and any probative value would be greatly outweighed by the prejudice associated with undue consumption of time. 

DISCUSSION

Plaintiff argues that Exhibit #1 does not comply with Business and Professions Code section 6147.  Subdivision (a) has a series of requirements for retainer agreements based upon contingency fees.  Specifically:

1.         “A statement of the contingency fee rate that the client and attorney have agreed upon.”

2.         “A statement as to how disbursements and costs incurred in connection with the prosecution or settlement of the claim will affect the contingency fee and the client’s recovery.”

3.         “A statement as to what extent, if any, the client could be required to pay any compensation to the attorney for related matters that arise out of their relationship not covered by their contingency fee contract.  This may include any amounts collected for the plaintiff by the attorney.”

4.         “[A] statement that the fee is not set by law but is negotiable between attorney and client.”

(Bus. & Prof. Code, § 6147, subd. (a).)  The agreement satisfies the first requirement by virtue of Paragraph #3.  The agreement satisfies the second requirement by virtue of Paragraph #5 and Paragraph #6.  The agreement satisfies the third requirement by virtue of Paragraph #13.  The agreement satisfies the fourth requirement by virtue of Paragraph #3.

            Plaintiff argues that Defendant’s counsel “threatened to seek sanctions in the form of attorney fees” in Defendant’s related collections action.  Plaintiff argues that these sanctions are not disclosed in the retainer agreement, rendering it defective.  There are two problems with Plaintiff’s argument.  First, the threatened sanctions derive from Code of Civil Procedure section 128.7, stemming from a separate action.  (See Plaintiff’s Trial Brief, Exh. B.)  These are not potential costs or expenses that must be disclosed in a retainer agreement because they derive from a separate action based upon Plaintiff’s alleged sanctionable conduct.  Second, the Court dismissed that action, so no such sanctions were imposed.   

            Plaintiff also relies on a sample fee agreement from the California State Bar’s website, arguing that Defendant’s agreement is not consistent.  This is only a sample agreement; it does not outline the only manner of compliance with section 6147(a).

            The Court denies the request for a declaratory judgment on the second issue, whether Rothman is entitled to collect $9,830.40 from Plaintiff.  It is not lawful to bring a claim for breach of contract and the affirmative defenses as claims for declaratory relief. (See California Ins. Guarantee Assn. v. Superior Court (1991) 231 Cal.App.3d 1617, 1624.)  

“The declaratory relief statute should not be used for the purpose of anticipating and determining an issue which can be determined in the main action.  The object of the statute is to afford a new form of relief where needed and not to furnish a litigant with a second cause of action for the determination of identical issues.

(General of America Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 470.)

CONCLUSION AND ORDER

            Based upon the foregoing, the Court orders as follows:

            1.         The Court orders that Exhibit #1 shall be admitted into evidence.  Exhibit #2 through Exhibit #11, and the testimony of the parties, shall be excluded under Evidence Code section 352.

            2.         The Court finds that Exhibit #1 complies with Business and Professions Code section 6147, subdivision (a), and is thus not voidable under subdivision (b).

            3.         The Court denies the request for a declaratory judgment on the issue whether Plaintiff owes Defendant $9,83040.

            4.         Defendant may lodge a proposed judgment if necessary.

            5.         The Court sets no future dates.

            6.         The Court’s clerk shall provide notice.