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 Post subject: FT - Sax v. Kritt (11/20/2002) Civil Conspiracy
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Sax v. Kritt,
2002.CA.0010564 (Cal.App. Dist.2 11/20/2002)

Synopsis

Defendant Averil Kritt is the son of the late Sarah Kritt. His brother is Larry Kritt. Sarah appointed Averil successor trustee of the Kritt Living Trust during her lifetime, after removing Larry as co-trustee. Sarah Kritt retained the law firm of Darling, Hall & Rae to pursue claims against her son Larry for embezzlement of funds and misappropriation of real estate belonging to Sarah. The law firm files an action against Averil for non-payment of services. Averil is forced to hire yet another law firm to represent him in the matter with the previous law firm. Second attorney files an action against Averil for breach of contract. Attorney proffers a claim of civil conspiracy.

Opinion

[U] Sax v. Kritt, 2002.CA.0010564 (Cal.App. Dist.2 11/20/2002)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT DIVISION FOUR

B154851

2002.CA.0010564

November 20, 2002

JEFFREY F. SAX, PLAINTIFF AND RESPONDENT,
v.
AVERIL KRITT, DEFENDANT AND APPELLANT.

APPEAL from a judgment of the Superior Court of Los Angeles County, Morris B. Jones, Judge. Reversed. (Super. Ct. No. BC222324)

Thomasina M. Reed for Defendant and Appellant.

Law Offices of Jeffrey F. Sax and Jeffrey F. Sax for Plaintiff and Respondent.

The opinion of the court was delivered by: Epstein, J.

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

This is a fee dispute in which plaintiff attorney, Jeffrey Sax, obtained summary adjudication and then judgment against his former client. The client, Averil Kritt, appeals, contending that triable issues of material fact preclude summary adjudication and that the judgment failed to include the court's ruling on his motion for summary adjudication as to the fourth and fifth causes of action.

We find triable issues of material fact regarding the amount of fees awarded and the interest on that award and reverse the judgment.

FACTUAL AND PROCEDURAL SUMMARY

We take part of our summary from the reported decision in the related case of Darling, Hall & Rae v. Kritt (1999) 75 Cal.App.4th 1148 (DHR).

Defendant Averil Kritt is the son of the late Sarah Kritt. He has a brother, Larry Kritt. (DHR, supra, 75 Cal.App.4th at p. 1150.) Sarah appointed Averil successor trustee of the Kritt Living Trust during her lifetime, after removing Larry as co-trustee.

On September 21, 1990, Sarah Kritt retained the law firm of Darling, Hall & Rae (sometimes referred to here as the law firm) to pursue claims against her son Larry for embezzlement of funds and misappropriation of real estate belonging to Sarah. Sarah and the law firm entered into a contingent fee agreement providing that the firm would pursue legal proceedings against Larry and possibly others to recover funds and assets owed to Sarah as a result of Larry's embezzlement and misconduct. (DHR, supra, 75 Cal.App.4th at pp. 1150- 1151.) In return for these services, the law firm was to receive "'30% of any net recovery obtained within 60 days of trial or after trial . . . .'" (Id. at p. 1151.) The fee agreement was signed by Sarah and by Averil as Sarah's attorney in fact (Averil is not an attorney). (Ibid.)

The law firm pursued actions against Larry both in state court and in bankruptcy proceedings filed by Larry. (DHR, supra, 75 Cal.App.4th at p. 1151.) In 1994, the law firm and Sarah's independent court appointed conservator, Jeffrey Siegel, negotiated two settlements regarding Sarah's claims against Larry. These settlements resulted in stipulated judgments filed in Larry's bankruptcy proceedings. (Id. at pp. 1151-1152.)

In the meantime, Averil obtained a durable power of attorney from Sarah, and misappropriated funds and the title to real properties from his mother. Conservator Siegel brought an action against Averil. When that action was set for trial, Larry, Averil, Sarah and the Kritt Trust reached a global settlement in probate court of all their claims against each other. Both Larry and Averil were allowed to keep what they had embezzled and misappropriated from Sarah and the Kritt Trust; Larry was released from the bankruptcy stipulated judgments; and the conservator's claim against Larry was dismissed. Larry assigned all of his interest in the Kritt Trust to Averil and agreed not to file a will contest because Sarah's will left her entire estate to Averil. This settlement was finalized in 1994 and Averil was appointed conservator of Sarah's person and estate. The law firm did not appear at the hearing on behalf of any of the participants in the settlement. (DHR, supra, 75 Cal.App.4th at p. 1152.)

Sarah died on November 10, 1994 and Averil was appointed executor of her probate estate. (DHR, supra, 75 Cal.App.4th at p. 1152.) In November 1995, the law firm sued Averil, individually and as trustee of the Kritt Trust, for breach of its legal services agreement with Sarah (Case No. 138845), seeking a 30 percent fee based on its recovery of two properties in Larry's bankruptcy proceedings. The law firm valued the fees at $50,840. (Ibid.) In March 1996, it filed a second action (Case No. 145814, the creditor's action) against Averil, individually and as executor of Sarah's estate. It sought to recover on its rejected claim in Sarah's probate estate for fees the law firm claimed were based on a $1.1 million recovery in Larry's bankruptcy proceeding. The two actions were consolidated for trial. (DHR, supra, 75 Cal.App.4th at p. 1152.)

In July 1996, Averil filed a cross-complaint in his individual capacity and as executor of Sarah's estate, seeking damages and other relief for legal malpractice, breach of fiduciary duty, constructive fraud, concealment, expungement of lis pendens, and an accounting. He claimed the bankruptcy settlement was worthless and that the recovery of the properties was meaningless because Averil already owned them. (DHR, supra, 75 Cal.App.4th at p. 1153.)

On February 9, 1998, Averil retained Parker Mills & Patel and the Law Offices of Jeffrey F. Sax (collectively "Attorneys") to represent him in the two actions. *fn1 A written legal representation agreement was executed (the Agreement). It provides that it is entered into and between "Averil Kritt, individually and as Trustee of the Kritt Living Trust, and as Executor of the Estate of Sarah Kritt . . . and PARKER MILLS & PATEL, and Law Offices of Jeffrey F. Sax." The Agreement provided that representation would commence once the attorneys received a signed copy of the Agreement from "Client," the retainer, the file from prior counsel, and after the substitution of attorney form is filed with the court.

Section 1.2 of the Agreement sets out the client's objectives: "Client has retained Attorneys to represent him in connection with a dispute with Darling, Hall & Rae and John Flowers who is suing Client for alleged unpaid attorneys' fees, and a cross-complaint against Darling, Hall & Rae and John Flowers for legal malpractice, et al. Attorneys shall defend Averil Kritt and the other named defendants against any and all claims of Darling, Hall & Rae and John Flowers and prosecute Averil Kritt's claims against Darling, Hall & Rae and John Flowers in cross-complainants [sic] [in both DHR actions]. The trial date is March 17, 1998 and the discovery cut off date is on or about February 14, 1998. Client acknowledges that absent a continuance of these deadlines, Attorneys will not be able to conduct discovery with the possible exception of expert witnesses, if any." (Italics added.)

Article 2 of the Agreement sets out the fee agreement. Section 2.1 provides for an hourly fee of $200, not including expenses. Client was to pay an immediate retainer of $2,500 to be used as full or partial payment of any monthly bill which remained outstanding for more than 30 days. Client agreed to pay fees and expenses which were to be billed monthly. Section 2.6 provided client an option to convert the fee arrangement to a partial hourly contingency fee. It does not appear that this option was ever exercised. Section 3.1 provided that client could terminate the representation at any time for any reason, but specified that attorney is "entitled to receive all hourly fees earned in full" and expenses. Client agreed that attorney's minimum compensation would be the $200 hourly rate set out in the Agreement (section 2.1).

The attorneys were allowed to terminate the agreement under section 3.2: "Attorneys may stop representing Client if Client fails to fulfill this Agreement or if permitted or required by the California Rules of Professional Responsibility or Rules of Court of California. Attorneys must notify Client of intention to withdraw from representing Client in writing. Client agrees to pay Attorneys for all fees earned at the time of recovery as provided by law; provided however, that Client shall promptly pay Attorneys all expenses incurred within 30 days after the date of withdrawal. If Attorneys must take any action to collect such fees and expenses under this Agreement, even if Attorneys represent themselves, the prevailing party shall pay the other party's reasonable Attorneys' fees."

The Agreement provided for arbitration of "any dispute [that] arises between Attorneys and Client regarding the nature of the services performed by Attorneys under this agreement, no matter how characterized or classified by Client, or if there is a dispute with regard to Client's performance under the terms of this Agreement, . . ." The dispute was to be resolved by binding arbitration to be heard by a retired judge of the Los Angeles County Superior Court.

The signature lines on the Agreement show a signature by Jeffrey F. Sax "Authorized representative" on behalf of "Parker Mills & Patel and Law Offices of Jeffrey F. Sax." The other signature line states only "Averil Kritt." Both Sax and Averil signed the agreement.

When Parker Mills & Patel and Sax was retained, there were pending motions for summary judgment or adjudication brought by the law firm in each of the two underlying cases. Sax filed opposition to the motions and the trial court denied them. (Darling, Hall & Rae v. Kritt, supra, 75 Cal.App.4th 1153.) A trial date was set. The court bifurcated the issues, with trial of the statute of limitations defense to be conducted first. (Ibid.) On the first day of trial, the trial court vacated its ruling on the law firm's motions, saying that it would reconsider them based on the previously submitted evidence only. After trial of the statute of limitations defense began, the trial court granted the law firm's motion on the cross-complaint. Ultimately, the trial court ruled in favor of the law firm on its summary judgment motions, finding no triable issue of material fact as to either the complaints or the cross- complaint. (Id. at pp. 1153-1154.)

Averil appealed the judgments in the law firm's actions. On September 27, 1999, the Court of Appeal affirmed the judgment on the cross-complaint, but reversed the remainder of the judgment and remanded for further proceedings. (Darling, Hall & Rae, supra, 75 Cal.App.4th at p. 1157.)

On June 2, 1998, Jeffrey Sax filed a notice of termination of representation of Averil Kritt in the law firm's actions. Averil had been billed monthly by Sax. Averil paid $3,000 in March 1998 and $10,000 in April 1998, but made no further payments. In April 1998, Sax applied the $2,500 retainer to the outstanding bill. Excluding interest, the outstanding balance for legal services provided by Sax was $47,480.47.

On December 27, 1999, Sax filed an action for breach of contract, common counts, fraudulent transfer of assets and conspiracy. Named as defendants were Averil Kritt and his former wife, Mildred. The complaint alleged that Sax had performed all duties required under the Agreement and that Averil breached the contract by failing to compensate Sax for services rendered. The cause of action for breach of contract alleged: "Plaintiff served defendant with a Notice of Client's Right to Arbitration. Averil Kritt did not respond to the notice and has waived his right to arbitrate." Sax sought damages of $47,480.47 plus 10 percent interest from the date of breach, fees and costs, an accounting, and an injunction requiring the return of all assets transferred by Averil to Mildred to satisfy Averil's creditors.

In January 2001, Sax filed a motion for summary adjudication of the first cause of action for breach of contract and the second cause of action for common count against Averil. Sax presented evidence that he had performed the work billed to Averil, and that a balance of $47,480.47 remained due and unpaid. He filed a separate statement of undisputed facts in support of the motion.

Averil opposed the motion for summary adjudication. Averil declared that he is legally blind, and that he relied on his ex-wife, Mildred Kritt, to read to him. He believed that she had read the retainer agreement to him. But Averil declared that he had not received any bills from Sax, and was not told of any bills by Mildred, who receives his mail. He thought that the $10,000 he paid in April 1998 was the final amount owing. Averil asserted that Sax was billing for services not performed, or for services performed before the retainer was signed. He said that he was not notified that Sax had terminated the Agreement and that Sax did not serve him a notice of his right to arbitrate the fee dispute through the Bar association. Averil also argued he should not be held personally liable because he was acting for the estate and trust.

On April 25, 2001, the trial court granted Sax's motion for summary adjudication on the first cause of action for breach of contract, and the second cause of action for common counts. In its minute order, the trial court stated: "Plaintiff and defendant contracted for legal services. Defendant was the sole client who signed the contract. Plaintiff presents the contract and evidence of services performed. Defendant argues that the fees are unreasonable, but presents no such evidence. Defendant also argues that the action should be settled by arbitration. However, if defendant seeks to file a petition to compel arbitration, he should do so. Finally, defendant argues that plaintiff improperly terminated his representation. However, defendant fails to argue how this excuses him from having to pay the fees incurred prior to termination of representation."

On April 30, 2001, Sax dismissed the third cause of action without prejudice. On July 6, 2001, Averil filed for summary adjudication of the fourth cause of action for conspiracy to breach contract and the fifth cause of action for fraudulent transfer. Sax responded by dismissing those causes of action without prejudice.

On August 2, 2001, Sax filed an ex parte application for entry of judgment against Averil on the ground that the court had granted summary adjudication in his favor on the first two causes of action and the remaining causes of action had been dismissed. Averil opposed the ex parte application. Sax filed no opposition to Averil's motion for summary adjudication.

The court granted Averil's summary adjudication motion as to the fourth and fifth causes of action because no opposition had been filed. The court directed that judgment be prepared reflecting judgment for Sax on the first and second causes of action and for Averil on the fourth and fifth causes of action. The signed judgment states: "Pursuant to the Court's Orders dated April 25, 2001 granting Plaintiff's motion for summary adjudication of issues as to the first and second causes of action, and dated August 10, 2001 granting Defendant Averil Kritt's motion for summary adjudication as to the fourth and fifth causes of action, and with all other causes of action against Defendants Averil Kritt and Mildred Kritt being voluntarily dismissed by Plaintiff, [] IT IS HEREBY ORDERED, ADJUDGED AND DECREED that: [] Plaintiff Jeffrey F. Sax shall take Judgment against Defendant Averil Kritt on the first cause of action for breach of contract and the second cause of action for common count in the sum of $63,175.42, which includes pre-judgment interest, plus $485.00 in costs for a total judgment of $63,660.42." Averil filed a timely appeal from the judgment.

DISCUSSION

"In moving for summary judgment, a `plaintiff . . . has met' his `burden of showing that there is no defense to a cause of action if' he `has proved each element of the cause of action entitling' him `to judgment on that cause of action. Once the plaintiff . . . has met that burden, the burden shifts to the defendant . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant . . . may not rely upon the mere allegations or denials' of his `pleadings to show that a triable issue of material fact exists but, instead,' must `set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.' (Code Civ. Proc., § 437c, subd. (o)1).)" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 850.)

The Aguilar court explained the burdens on the parties moving for, and opposing summary judgment: "[H]ow the parties moving for, and opposing, summary judgment may each carry their burden of persuasion and/or production depends on which would bear what burden of proof at trial. Again, in Reader's Digest [Assn. v. Superior Court (1984) 37 Cal.3d 244], we held to the effect that the placement and quantum of the burden of proof at trial were crucial for purposes of summary judgment. (Reader's Digest Assn. v. Superior Court, supra, 37 Cal.3d at p. 252.) . . . Thus, if a plaintiff who would bear the burden of proof by a preponderance of evidence at trial moves for summary judgment, he must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not--otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 851.)

An appellate court reviews "the trial court's decision de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections were made and sustained. [Citations.]" (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65- 66.) With these principles in mind, we turn to Averil's contentions.

I.

Averil first argues that there is a triable issue of material fact as to his liability as an individual because he is a party to the Agreement both in his individual capacity and in his representative capacities as trustee and executor. He contends that Sax cannot recover against him individually because he entered into the contract on behalf of the trust and the estate. Averil points out that Sax was retained to defend the actions brought by the law firm, and that those actions were for attorney's fees stemming from representation of Sarah. He acknowledges that the law firm sued him in his individual capacity as well. In addition to its claims for legal fees based on services to Sarah and her estate and trust, in each action the law firm alleged that Averil was individually liable for conversion of real estate interests and income; for fraudulent transfers of assets belonging to Sarah and the Kritt Living Trust; and for civil conspiracy to remove assets from the trust and Sarah.

Without citing supporting authority, Averil argues it is necessary to apportion the fees due Sax between the trust, the estate and the individual. He contends this is necessary because the trustee is the proper party defendant in an action against the trust, and the executor is the proper party defendant in a suit against Sarah's estate. He argues the trial court failed to determine whether he is liable for all the services under the Agreement, and that the triable issue of material fact on this issue precludes summary adjudication.

Sax responds that the Agreement was signed by Averil in his individual capacity, which is enough to render him personally liable for fees without apportionment. He also cites no authority for this proposition. He points out that the Agreement does not include a provision for the apportionment of fees among Averil's three capacities.

"`The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties.' (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264 [10 Cal.Rptr.2d 538, 833 P.2d 545]; Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865 [44 Cal.Rptr. 767, 402 P.2d 839].) The mutual intention to which the courts give effect is determined by objective manifestations of the parties' intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. (Civ. Code, §§ 1635-1656; Code Civ. Proc., §§ 1859-1861, 1864; Hernandez v. Badger Construction Equipment Co. (1994) 28 Cal.App.4th 1791, 1814 [34 Cal.Rptr.2d 732]; 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, §§ 688-689, pp. 621-623.)" (Morey v. Vannucci (1998) 64 Cal.App.4th 904, 912.)

The plain language of the Agreement describes Averil, individually and as trustee and executor, collectively, as "Client." It states "Client has retained Attorneys to represent him in connection with a dispute with Darling, Hall & Rae and John Flowers who is suing Client for alleged unpaid attorneys' fees, and a cross-complaint against Darling, Hall & Rae and John Flowers for legal malpractice, et al. Attorneys shall defend Averil Kritt and the other named defendants against any and all claims of Darling, Hall & Rae and John Flowers and prosecute Averil Kritt's claims against Darling, Hall & Rae and John Flowers in cross-complainants [sic] [in both DHR actions]." (Italics added.)

These clear terms make Averil, as an individual, a party to the Agreement with Sax. Moreover, the law firm sued him in both his individual and representative capacities. Sax was retained to represent Averil in each of his capacities.

Civil Code section 1431 provides: "An obligation imposed upon several persons, or a right created in favor of several persons, is presumed to be joint and not several, except as provided in Section 1431.2, and except in the special cases mentioned in the title on the interpretation of contracts. This presumption, in the case of a right, can be overcome only by express words to the contrary." Civil Code section 1659 provides: "Where all the parties who unite in a promise receive some benefit from the consideration, whether past or present, their promise is presumed to be joint and several."

Averil's declaration in opposition to the summary adjudication motion does not overcome the presumption of joint liability raised by these statutes and by the language of the Agreement. He states that he signed a retainer agreement "as trustee of the trust and executor, and individually regarding the cross-complaint." While Averil challenges Sax's claim for specific services and contends that he never received bills from his attorneys, he does not dispute that Sax represented him individually in the litigation.

We are satisfied that Averil was personally liable under the Agreement. We find no authority to support his argument that the liability must be apportioned between the estate, the trust and himself. Averil may have a right to seek contribution from the estate and the trust (see Civ. Code, § 1432 ["Except as provided in Section 877 of the Code of Civil Procedure, a party to a joint, or joint and several obligation, who satisfies more than his share of the claim against all, may require a proportionate contribution from all the parties joined with him."]), but he was properly held fully liable to Sax for breach of the Agreement.

II.

Averil argues there is a triable issue of material fact because Sax failed to provide statutory notice of his right to arbitrate the fee dispute pursuant to Business and Professions Code section 6201.

That statute provides in pertinent part: "The rules adopted by the board of governors [of the State Bar] shall provide that an attorney shall forward a written notice to the client prior to or at the time of service of summons or claim in an action against the client . . . for recovery of fees, costs, or both . . . . The written notice shall . . . include a statement of the client's right to arbitration under this article. Failure to give this notice shall be a ground for the dismissal of the action . . . ."

In his reply, Sax provided a copy of a form "Notice of Client's Right to Arbitration" with a proof of service showing that it was mailed to Averil on May 26, 1999, a date more than six months before Sax filed his complaint. It was mailed to the same address Averil later used when he filed his answer to the complaint in propria persona.

This showing was sufficient to controvert Averil's assertion that Sax did not serve him with a right to arbitration. Since Sax complied with Business and Professions Code section 6201, subdivision (a), Averil lost his right to arbitrate when he filed an answer to the complaint. (Bus. & Prof. Code, § 6201, subd. (b): "The request for arbitration [by the client] shall be served and filed prior to the filing of an answer in the action . . . ; failure to so request arbitration prior to the filing of an answer . . . shall be deemed a waiver of the client's right to arbitration under the provisions of this article if notice of the client's right to arbitration was given pursuant to subdivision (a).")

There is no triable issue of material fact regarding notice of right to arbitration.

III.

Averil also argues that Sax is not entitled to summary adjudication because his representation was not properly terminated. Termination of the attorney-client relationship is a prerequisite to a suit for breach of contract by the attorney. (Vapnek et al., Cal. Practice Guide: Professional Responsibility (The Rutter Group 2001) [] 5:1018, p. 5- 124; see discussion in Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 549.)

It is undisputed that Sax failed to comply with Code of Civil Procedure section 284, which provides for court ordered withdrawal from representation without the client's consent. *fn2 (See Cal. Rules of Court, rule 376 for requirements on motion.) As we have seen, the Agreement provides for termination by notice. Sax has not cited any California authority allowing an attorney to withdraw on notice to his client pursuant to a provision of the fee agreement without complying with Code of Civil Procedure section 284. We have found none. We need not resolve this issue since, as we explain, it is clear that Sax's representation of Averil had ended before this action was filed.

Sax argues that the representation ended, only when he sent his notice of termination of the representation. The Agreement provides that Sax was retained to represent Averil in the law firm's cases. It specifically provides that it does not "cover any appellate work, which shall be the subject of a separate written agreement."

The Civil Register Report on DHR case number BC 138845 is included in Appellant's Appendix. It reflects that the notice of termination of representation of Averil was filed by Parker, Mills & Patel on June 2, 1998. This was after the order granting the summary adjudication motion, but before the filing of the judgment in November 1998.

Sax asserts that at the time he filed the notice of termination, "the judgments had been submitted to the trial court and there was no more legal work to be done. Shortly thereafter, a new attorney (Mr. Kaplan) appeared in the case for Kritt, by filing the notice of appeal." Sax requests that we take judicial notice of the notice of appeal filed by Mr. Kaplan, but does not provide a copy of the document. The notice of appeal in the consolidated DHR cases was filed by Averil, acting in propria persona, on July 6, 1998. Mr. Kaplan substituted into the law firm's appeal on behalf of Averil on November 10, 1998. Since this action was not filed until December 27, 1999, Sax's relationship with Averil ended long before that date. There is no triable issue on this point.

IV.

Averil challenges the amount of fees awarded Sax and the interest award. First, he contends that Sax improperly billed him for work done before the Agreement was executed. As we have discussed, the Agreement was effective upon the signatures of the parties, the payment of a retainer, receipt of the files from Averil's former attorney, and the filing of a substitution of attorney. We know that the Agreement was signed by Averil on February 11, 1998. Therefore, the Agreement could not have been in effect before that date. Sax submitted $3,000 in billing for services provided in January 1998 in support of his motion for summary adjudication. He billed an additional $2,120 for services provided between February 2, 1998 and February 10, 1998.

There is an integration clause in the Agreement, providing that it is the entire agreement regarding Sax's representation of Averil. There is no provision covering payment for services rendered before the effective date of the Agreement. We are not told when the other conditions of the Agreement were satisfied to commence the representation. Thus, there are triable issues of material fact as to when the Agreement became effective and, hence the earliest date for which Sax is entitled to fees.

Averil also argues that Sax's fees were unreasonable. In his declaration in opposition to the motion for summary adjudication, Averil pointed out that Sax billed for preparation of an opposition to one of the DHR motions for summary adjudication. He attached a copy of the opposition filed on his behalf in the DHR action, which indicates that it was prepared by the firm of Cheong & Denove. Neither Sax nor Parker Mills & Patel appear as counsel for Averil on this pleading. Sax dismisses this argument as speculative, but does not explain the discrepancy in his reply brief.

The evidence submitted by Averil was sufficient to raise a triable issue of material fact as to the reasonableness of the fees sought by Sax.

Averil also challenges Sax's claim for 10 percent interest on the fees. The Agreement provides: "Attorneys, at their discretion, may charge interest at the legal rate on any overdue balance." We are cited no relevant case law on the propriety of such a provision. But the State Bar of California, the American Bar Association, and local bar associations in Los Angeles, San Francisco, and San Diego have addressed the issue: "An attorney may ethically charge interest and impose late charges on past-due fees and costs, provided the attorney obtains the client's informed consent and complies with applicable law. [Cal. State Bar Form.Opn. 1980-53; ABA Form.Opn. 388 (1974); Los Angeles Bar Ass'n Form.Opns. 370 (1978) & 374 (1978) & 499 (1999) (interest on costs); Bar Ass'n of San Francisco Form.Opn. 1970-1; San Diego Bar Ass'n Form.Opn. 1983-1; Rest.3d Law Governing Lawyers § 38, Comment `h']." (Vapnek et al., Cal. Practice Guide: Professional Responsibility, supra, [] 5:935, p. 5-122.)

Based on the language of the Agreement, we conclude there is a triable issue of material fact as to whether Averil gave informed consent to the imposition of 10 percent interest on any overdue bill.

While we agree with Sax on a number of issues, we may affirm a summary judgment on each of the sole remaining causes of action only if it "completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." (Code Civ. Proc., § 437c, subd. (f)(1).) Since there are triable issues of material fact as to the proper amount of damages, including interest entitlement, the judgment must be reversed.

V.

Averil complains that the judgment failed to include the trial court's ruling in his favor on the fourth and fifth causes of action. We disagree. The judgment stated: "Pursuant to the Court's Orders dated April 25, 2001 granting Plaintiff's motion for summary adjudication of issues as to the first and second causes of action, and dated August 10, 2001 granting Defendant Averil Kritt's motion for summary adjudication as to the fourth and fifth causes of action, and with all other causes of action against Defendants Averil Kritt and Mildred Kritt being voluntarily dismissed by Plaintiff, [] IT IS HEREBY ORDERED, ADJUDGED AND DECREED that: [] Plaintiff Jeffrey F. Sax shall take Judgment against Defendant Averil Kritt on the first cause of action for breach of contract and the second cause of action for common count in the sum of $63,175.42, which includes pre-judgment interest, plus $485.00 in costs for a total judgment of $63,660.42."

This judgment adequately reflects the fact that Averil prevailed as to the fourth and fifth causes of action, but that Sax is entitled to judgment based on his successful motion for summary adjudication of the first and second causes of action.

DISPOSITION

The judgment is reversed. Averil is to have his costs on appeal.

NOT TO BE PUBLISHED.

We concur:

VOGEL (C.S.), P.J.

HASTINGS, J.


Opinion Footnotes

*fn1 In a declaration in support of his motion for summary adjudication, Jeffrey Sax explained: "Prior to February 15, 1998, I used the letterhead of Parker Mills & Patel, a lawfirm [sic] where I had/have my offices. Effective February 15, 1998, I began to use my own letterhead and listed Parker Mills & Patel as `of counsel.' The first bill generated to Averil Kritt for services rendered, dated February 1, 1998 for services rendered in January, 1998, was on the letterhead of Parker Mills & Patel. Thereafter, February 1, 1998 forward, the Law Offices of Jeffrey F. Sax billed Averil Kritt. The account for the first bill was orally assigned by Parker Mills & Patel to me."

*fn2 Code of Civil Procedure section 284 provides: "The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, as follows: [] 1. Upon consent of both client and attorney, filed with the clerk, or entered upon the minutes. [] 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other."


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