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Tishgart v. DeJesus8/31/2004
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Appellant, attorney Kenneth B. Tishgart, sued respondent Julius DeJesus, his former client, for breach of a contingency fee agreement they had executed. DeJesus cross-complained against Tishgart for declaratory relief with respect to the allocation of fees between Tishgart and attorney Terence Doyle, who was named as a cross-defendant because he had represented DeJesus at the initiation of the underlying action. The trial court found the contingency fee agreement between Tishgart and DeJesus to be invalid under Business and Professions Code section 6147, subdivision (b), held that Doyle was entitled to quantum meruit compensation under his contract with DeJesus, and determined that the "reasonable fee" to which Tishgart was entitled under section 6147, subdivision (b) totaled $2,500. Tishgart contends that the trial court erred in invalidating his contract with DeJesus and in awarding $15,540 to Doyle. We affirm.
I. BACKGROUND
On September 23, 2000, DeJesus was seriously injured when a car collided with the motorcycle he was driving. DeJesus retained the law offices of Terence Daniel Doyle to represent him in a personal injury action against the driver and owner of the car that struck him. DeJesus and Doyle signed a fee agreement providing that Doyle would prosecute the case on a contingency basis. In relevant part, the agreement provided that, in the event of discharge by DeJesus, Doyle would receive "a lien in the sum of Quantum Meruit (work performed at a rate of $225.00 per hour for attorney work and $100.00 per hour for paralegal work) plus any costs advanced."
At trial, Ron Maidenberg, who had handled DeJesus's case at Doyle's office, testified that he had successfully handled DeJesus's claim for damage to his motorcycle in the accident, made multiple requests for DeJesus's medical records from Kaiser, his medical insurance provider, and filed a complaint to preserve DeJesus's claim before the expiration of the statute of limitations.
DeJesus, apparently unaware of the work Maidenberg had been accomplishing and dissatisfied with the level of communication between himself and Doyle's office, asked Tishgart to take over the personal injury action. On December 15, 2001, Tishgart and DeJesus executed a contingency fee agreement, which provided that Tishgart would receive 40 percent of the gross amount recovered on DeJesus's behalf. Tishgart and DeJesus notified Maidenberg of the change in representation, and Maidenberg ceased working on the case.
On December 20, 2001, Maidenberg notified Tishgart by letter that Doyle's office intended to assert a lien against any recovery on DeJesus's behalf. On January 10, 2002, Maidenberg sent the DeJesus file to Tishgart via Federal Express. Included in the file was a letter indicating that, at that time, the estimated total of Kaiser's claim with respect to DeJesus totaled $92,514.77.
At trial, Tishgart testified that he did not remember receiving DeJesus's file from Doyle's office, and that he either did not read or did not remember reading the letter including the estimated value of Kaiser's claim. He claimed that he could only estimate DeJesus's medical costs based on information and documents (totaling $23,252.95) he had received from DeJesus. Since DeJesus was uninsured at the time of the accident, Tishgart knew that recovery would be lim
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