Filed 6/12/14 Fleischman v. Law Office of Paul Stanton CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

DON U. FLEISCHMAN,
Plaintiff, Cross-Defendant, and Appellant,

v.

LAW OFFICE OF PAUL STANTON,
Defendant and Appellant;
PAUL L. STANTON,
Cross-Complainant and Appellant. B216898
(Los Angeles County Super. Ct. No. BC254772)

APPEAL from a judgment of the Supe rior Court of Los Angeles County. Paul L. Gutman, Judge. Affirmed in part, reversed in part, and remanded.
Brown, Brown & Klass, Delos E. Brow n, Robert L. Kaufman and John J. Stumreiter for Plaintiff, Cro ss-Defendant and Appellant.
Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup, Bartley L. Becker and Allison A. Arabian for De fendant and Appellant.
Nemecek & Cole, Frank W. Nemecek and Mark Sch aeffer; Law Offices of Warren Nemiroff and Warren N. Nemiroff for Cross-Complainant and Appellant.

_____________ _____________2 Attorney Paul Stanton and his law firm, the Law Offices of Paul Stanton, appeal from the trial court’s judgment denying them re lief in their complain t for breach of a fee agreement against their former client, Don Fleischman, and ordering them instead to
return to Fleischman several hundred thousa nd dollars in legal fees. Former client
Fleischman is satisfied with the trial court’s judgment, but filed a protective cross-appeal in the event the ju dgment were reversed. We hold the trial court erred (1) in ordering attorney Stanton to disgorge all the fees he received from Fleischman and (2) in awarding Fleischman his attorneys’ fees and costs. As for Fleischman’s cross-appeal protectively alleging instructional error and error in the valu ation date of real estate that Fleischman recovered while Stanton repr esented him, we affirm.

FACTS AND PR OCEEDINGS

1. Fleischman Family History and Events Leading to Don Fleischman’s Hiring of Attorney Paul Stanton
Joan and Art Fleischman, who married in 1952, were the parents of Don Fleischman and his brother, Dan Fleischman. (Because of the sh ared surname of the Fleischman family participants in these proceedings, we w ill identify them by their given names.) In addition to reari ng Don and Dan, Joan and Art ra ised Joan’s son, Ken Kaplan, from her first marriage to Ken’ s late father, who died de cades ago. During Art and Joan’s marriage, Art prospered in the janitori al supply business. Over the years, he and Joan acquired multiple pieces of commercial and residential real estate, consisting of: a
warehouse on Third Street in downtown Los Angeles; a wa rehouse on Garey Street in downtown Los Angeles; a warehouse in Vernon; a home in La Cañada; and a
condominium in Pasadena. In the early 1990’s, Dan took control of the personal and financial affairs of his mother Joan, whose cognitive ab ilities were declining. In 1997, Joan, who by this time was living apart from her husband, Art, draf ted a will and created an inter vivos trust naming Dan trustee with a power of attorney and leaving the great bulk of her estate to him. The only proper ty Joan did not give to Dan was $100 in cash to Don and her former3 home in Hermosa Beach which she had acq uired before marrying Art, which she bequeathed to Ken. In light of evidence that Dan was phys ically and financially abusing Joan, Ken sought a conservatorship for Jo an. In 1998, the probate cour t appointed two conservators (Sharon Woody and Sarah Kerley), who retained the law firm Loeb & Loeb to represent them as they moved to protect Joan’s interests. Dan resisted the conservators’ attempts to
wrest control of his mother’s affairs from him. Dan’s resistance was hard-fought, involving multiple laws uits including suits against Don and Ken. Among the lawsuits

were Dan Fleischman v. Kenneth Kaplan, Don Fleischman, Ar thur Fleischman, et al. (L.A.S.C. case No . BC214702); Dan Fleischman, trustee of the Joan M. Fleischman Intervivos Trust v. Arthur Fleischman, the Arthur Fleischman Personal Trust, Kenneth Kaplan and Don Fleischman et al. (L.A.S.C. case No. YC 037205); In the Matter of the
Joan M. Fleischman Revocable Intervivos Trust u/a/d 7/8/97 (L.A.S.C. case No. BP 060964); and In the Matter of the Conser vatorship of Joan Fleischman (L.A.S.C. case No. BP 061285). But with the help of Loeb & Loeb, the conservators took control of
Joan’s affairs from Dan. In conjunction with the conservators’ e fforts, conservator Sarah Kerley suggested
to Don that an elder abuse lawsuit be file d against Dan. Consequently, Don and his father, Art, contacted attorney Paul Stanton, whose law fi rm website advertised that Stanton specialized in elder abuse law. Afte r meeting Stanton, Don and Art retained him to represent them in their cl aims against Dan pers onally and as trustee of Joan’s trust. 1 Stanton prepared a written retainer agreement. It stated in part:

“We [Stanton and his firm] agree to repres ent you in connection with your claims against Dan Fleischman, individually and as Trustee of the Joan Fleischman Trust.

1 Don and Art did not retain Stanton to bring any claims against Dan regarding Art or Art’s property. But Stanton claimed othe rwise, testifying they retained him for a broader purpose: “They [Don and Art] retained me to assert whatever claims could be asserted against Dan.”4 (In this regard we are representing you as individuals only. In the event any of you are appointed the conservator of the Joan Fleischman Cons ervatorship Estate, and we become your attorneys in that capacity, the attorney ’s fees for such services are compensated as determined by the court for such services.)”

Although Don and Art retained Stanton at the conservators’ suggestion, the conservators did not use Stanton’s legal servic es. Indeed, before Don retained Stanton in March 2000, the conservators and their la w firm, Loeb & Loeb, had successfully removed Joan from Dan’s care and placed her in a convalescent home. They had also achieved revocation of Dan’s power of attorney for Joan and his removal as trustee for
her inter vivos trust. Art died a few weeks after signing Stanto n’s retainer agreement. Art’s will and trust disinherited Dan and, except for about $100 ,000 to Ken, left Ar t’s estate to Don.

2. Stanton’s Representation of Don
When Don retained Stanton, Don believed Stanton would file an elder abuse claim against Dan to recover proper ty Dan had taken from Joan. Stanton never filed an elder abuse lawsuit against Dan and did not tell Don that only Joan (or her conservators) could file such a suit. Indeed, St anton conceded under cross-exam ination at trial that no such
lawsuit was needed because Joan’s conservators had en ded Dan’s abuse of Joan. However, while Stanton was re presenting Don, Stanton disse mbled about his reason for not filing an elder abuse lawsuit by telling Don that the “wheels of justice” moved slowly. In the conservatorship proceedings, Loeb & Loeb and the co nservators proved Dan had misappropriated ab out $600,000 of Joan’s m oney. Because of the misappropriation, which the probate court fo und was in bad faith, the probate court entered against Dan a judgment including stat utory sanctions of ab out $1.2 million. The conservators also got a court order ejec ting Dan from Joan’s home in La Cañada. The conservators’ probate court victory fo rced Dan in September 2000 to agree to5 mediate his dispute with Don over their parents’ estates. As a result of the mediation, the conservators agreed not to en force the $1.2 million judgment ag ainst Dan in return for his agreeing to the following: He voluntarily disinherited himsel f by renouncing his interest
in Joan’s and Art’s estates and trusts. Add itionally, he dismissed la wsuits he had filed against Joan’s trust and Art’s estate, incl uding a $100 million cr editor’s claim he had filed against Art’s estate. He disclaimed inte rest in Joan’s $500,000 life insurance policy, the proceeds of which were to be split between Don and Ken. Finally, he vacated the
warehouse on Third Street thro ugh which he had asserted, to Don’s exclusion, control over Art’s janitorial business.
A few months later in Febr uary 2001, Joan died. At Stanton’s insistence, Don and Ken in February 2001 mediated their compet ing remaining interests in their mother’s estate. Under Joan’s estate plan, Ken wa s to receive all Joan’s property if Dan predeceased her. In the wake of Dan’s volu ntary disinheritance in the September 2000 mediation, Ken sought to recover Joan’s property for himself, almost as if Dan’s disinheritance amounted to his predeceasing Joan . As a result of the February mediation, however, Ken agreed to let Don buy out Ke n’s share of their mother’s estate for $1,250,000. In return for th e services Stanton claimed that he rendered to Don against Dan, Stanton arranged for th e February mediation settleme nt to contain a provision promising him a fee of $430,000 to be paid from Joan’s or Art’s estates. The February mediation agreement stated: “The parties agre e that the sum of $430,000 shall be paid to
Paul L. Stanton from Joan’s Tr ust and/or Art’s Trust as the contingent fee portion of the attorneys’ fees for services rendered prior to the death of Joan M. Fleischman in connection with litigation with Dan Fleischman . This amount is inclusive of the fees payable to Paul L. Stanton from the Massachuse tts Mutual Life Insurance Policy . . . .” In April 2001, Stanton received a check payable to D on and Ken in the sum of $487,754.95 as Joan’s life in surance proceeds from Massachuse tts Mutual Life Insurance Company. Stanton endorsed the check purpor tedly on Don’s behalf. He paid Ken about $200,000 from the proceeds, took $97,550.99 as his contingency fe e, and deposited the rest – about $190,000 – into his client tr ust account which Don could not access.6 Don thereafter dismissed Stanton and on May 3, 2001, sent a letter to Stanton disputing Stanton’s right to any of the lif e insurance proceeds. Don demanded Stanton
return to Don the funds Stanton withheld. Up to the time of Don’s May 2001 letter, Don had never told Stanton that he was unhappy with Stanton’s representation of him or the results of the September and February mediat ions. Also up to the time of the letter, Don had paid Stanton’s bills charging Stanton’s reduced hourly rate without complaint. But in his May 2001 letter, Don wrote: “I intend to retain counsel . . . to represent me in connection with our fee disput e. In the meantime, you are not authorized to distribute any of my mother’s insurance pr oceeds in your trust account to yourself or to any other person. Demand is made that you restore to the trust account any funds which you have previously withdrawn. [¶] I also demand th at you deposit all of said insurance proceeds into a separate interest bear ing account in my name which I will open. I will provide you
with the bank information for th e account so that you can transf er the funds directly into said account.” Despite Don’s telling Stanton that Don disputed Stanton’s right to pay
himself his fees from Joan’s insurance proceeds, Stanton conceded at trial that he nevertheless did exactly that: “Q. And you took the rest of it that would have been Don’s share [of the insurance proceeds] and you kept it in your client trust account; correct? [¶] A. Yes. [¶] Q. And that’s still there; isn’t it? [¶] A. No. [¶] Q. Where is it now? [¶] A. In my pocket.” In June 2001, Stanton asked the probate court to enforce payment of his fees from Joan’s trust. Arguing that he was entitled to $430,000 in fees under the February mediation settlement agreement, Stanton’ s probate court petition sought an order authorizing Stanton to pay hi mself the additional sum of $190,203.96 from Joan’s life insurance proceeds in hi s trust account and an order inst ructing Joan’s trust to pay him $142,245.05 as the remaining balance. The probate court dismissed Stanton’s petition, a
dismissal Division 4 of this court affirmed in 2004 in an unpublished opinion. ( Stanton v.
Fleischman (Apr. 14, 2004, B1582 65) [nonpub. opn.].) In the meantime, in July 2001 Don filed a malpractic e complaint against Stanton and his law firm. Don allege d causes of action for professional negligence, breach of7 fiduciary duty, and declaratory relief. In his claim for declar atory relief, Don alleged that Stanton was demanding $430,000 in attorneys’ fees from Don but Don believed that “any purported fee agreement” was invalid. According to the cl aim for declaratory relief, the parties thus needed a determination of their rights, duties, and obligations, and to “the extent that [Don] owes [Stanton] any money whatsoever as attorney s’ fees, said fees
would be reduced or elimin ated by damages caused to” Don by Stanton’s alleged negligence and breach of fiduciary duty. Stanton filed a cross-complaint against Don based on Don’s refusal to pay the additional legal fees that Stanton claimed Do n owed him. He alleged breach of the retainer agreement. He also alleged breach of the $430,000 paym ent promised him under the February mediation agreement. He further alleged two causes of action for declaratory relief on the grounds actual controversies existed over the retainer agreement’s validity and whet her the February mediation agreement entitled him to a $430,000 payment. Finally, he alleged a ca use of action for the reasonable value of the legal services he pr ovided to Don. The complaint and cross-complaint were tried to a jury. On October 31, 2008,
both Don and Stanton rested thei r cases. After the close of evidence and before jury arguments began, Don filed a motion for ju dgment that the retainer agreement was
unenforceable. 2 Don asserted the retainer agreemen t unlawfully restricted his right as a client to discharge Stanton. Don also asserted the retainer agreement unlawfully restricted his right as the client to settle hi s lawsuit on whatever te rms he saw fit. Don thus requested that the court enter judg ment on Don’s third cause of action for declaratory relief or on his affirmative defens e that the retainer ag reement was void. On the day the parties began their clos ing arguments and before the trial court submitted the case to the jury, the court found Stanton’s retainer ag reement with Don was void and granted Don’s motion for judgment. The court concluded that the retainer agreement was void against publ ic policy because it created an “undisclosed, unwaived,

2 Stanton calls Don’s motion one for a “directed verdict.”8 and irreconcilable” conflict of interest be tween Stanton and Don, and the unlawful provisions could not be severed from the rest of the retainer agreement. At the hearing on the motion, the court stated “Any purpor ted agreement to pay the sum sought by defendant [Stanton] is invalid.” After the court found the retainer ag reement was void and closing arguments concluded, the jury began de liberating on November 14, 2 008. The jury reached its special verdict on November 20, 2008. The jury found Stanton had not been professionally negligent, but had breached his fiduciary duties to Don. However, Stanton’s breach of fiduciary duties did not cause Don legal damages. The court entered judgment in Apr il 2009. Judgment was for Don on his complaint’s third cause of action for declarat ory relief finding the retainer agreement void and, because the retainer ag reement was void, against Stan ton on his cross-complaint seeking to collect fees from D on. The court ordered Stanto n to disgorge all the money that he had received or retained in repres enting Don in the amount of $400,775.00 and to return that money to Don with interest in the amount of $318,043.9 7. The court also
awarded Don his reasona ble attorneys’ fees and costs incurred in the litigation between
him and Stanton. Stanton filed a notice of appeal. Don acce pts the judgment in his favor as is, but filed a protective cross-appeal in the event we reverse it.

DISCUSSION

1. Court’s Judgment That Reta iner Agreement is Void

a. Two Unlawful Restrictions on Don’s Rights as a Client

i. Restricting Don’s Right to Terminate Stanton
Stanton’s retainer agreement with Don was a hybrid hourly-and-contingency fee agreement. In return for St anton’s accepting a lower hourly rate than his normal rate, Don promised to pay Stanton 20 percent of any recovery from Dan. The agreement stated: “[Stanton] will be paid for the services rende red under this agreement a9 contingent fee of twenty percent (20 [percent]) of any recovery whether it is in cash or in kind.” The retainer agreement restricted Do n’s ability to terminate Stanton, however, by eliminating the discount in Stanton’s hourly rate and restoring Stanton’s normal hourly rate if Don discharged Stanton before Don’ s litigation against Dan ended. The retainer agreement stated: “In the event that prior to our substantial performance of the services contemplated by this agreement, our services terminate for any reason not co vered above, then in lieu of the compensation provided above , and without regard to the outcome of this matter, you shall pay us for all servi ces theretofore rendered at the hourly rates then charged by us, but in any event not less than the fo llowing hourly rates: [¶] a. Paul L. Stanton $350 [¶] b. Associate Counsel $250 [¶ ] c. Paralegals $150 [¶] d. Secretarial/Clerical $50.”

ii. Restricting Don’s Right to Settle
Stanton’s retainer agreement also rest ricted Don’s ability to settle his claims against Dan. The agreement stated: “Remember, you are under no obl igation whatsoever to ever make a settlement that is not in your best interests. If you choose not to settle and if the court or jury awards you nothing, our fees will be lim ited to the hourly ra te fees you have agreed to pay as set forth above. [¶] The only exception would be a bad faith termination of our services by you prior to a formal acceptan ce of a settlement package to which we had si gnificantly contributed or a bad faith acceptance of a low settlement offer. For example, let us assume that we have spent four months negotiating the terms of a settlement whic h appears to be acceptable except for minor tuning and adjustment. If, at that time you were to discharge us in order to avoid payment of our contingent fee as contained in this agreement and either engaged new co unsel or finished the settlement yourself with the help of nonlawyers, we would be entitled to the greate r of (i) the amount payable pursuant to this agreement, based on the proceeds of any settlement or other disposition of the10 matter, or (ii) compensation for services re ndered at double th e hourly rates then charged by us.”

b. Court Finds Restrictions Inva lidate Retainer Agreement
The trial court found the foregoing two re strictions that Stanton imposed on Don’s right to terminate Stanton and to settle hi s claims against Dan made the agreement
unenforceable because the restri ctions created a conflict of interest between Stanton and
Don. 3 We agree that the provisions were une nforceable, but becaus e Stanton did not try to enforce them, we find the court’s disgor gement order, which we discuss further in Part 3, was error. “It has long been recognized in this stat e that the client’s po wer to discharge an attorney, with or without cause, is absolute.” ( Fracasse v. Brent (1972) 6 Cal.3d 784, 790; Champion v. Superior Court (1988) 201 Cal.App.3d 777, 7 83.) “The interest of the client in the successful prosecution or defens e of the action is superior to that of the attorney, and he has the right to employ such attorney as will in his opinion best subserve
his interest. The relation between them is such that the client is justified in seeking to
dissolve that relation whenever he ceases to have absolute confidence in either the integrity or the judgment or the capacity of the attorney . . . . The fact that the attorney has rendered valuable services under his employmen t, or that the client is indebted to him

3 Don also argued the retainer agreemen t was void because it imposed a charging lien for Stanton’s benefit on Stanton’s 20 per cent share of Don’s recovery. According to Don, Stanton violated prof essional ethics by not getting Don’s written consent to the adverse interest that the lien created between him and Stanton. (State Bar Rule 3-300.) However, the court declined to decide whethe r a charging lien on a contingency fee is unethical because it found the i ssue legally unsettled. (See Fletcher v. Davis (2004) 33 Cal.4th 61, 70, fn. 3 [Supreme Court declined to decide wh ether Rule 3-300 applies to lien against prospective recovery under contingency fee agreement]; Plummer v. Day/Eisenberg, LLP (2010) 184 Cal.A pp.4th 38, 48 [noting Fletcher left application of Rule 3-300 to contingency fee agreements unde cided].) The trial court instead rested its voidness ruling on the restrictions the reta iner agreement imposed on Don’s right to terminate Stanton and to settle his case.11 therefor, or for moneys advanced in the pros ecution or defense of the action, does not deprive the client of this right.” 4 ( Fracasse, at p. 790.) A client also has the right to settle his case without his attorney s’ consent. (See,

e.g., Lemmer v. Charney (2011) 195 Cal.A pp.4th 99, 103-104.) Although a client has the right to terminat e his attorney and to settle his case, an attorney may recover under quan tum meruit for the reasonable va lue of his services to the client. Thus, a client who discharges an attorney under a con tingency-fee agreement hoping to keep the entire r ecovery to himself might nevertheless owe a fee to the attorney. ( Fracasse, supra, 6 Cal.3d at p. 791; Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1382; Rus, Miliband & Smith v. Conkle & Olesten (2003) 113 Cal.App.4th 656, 671-672.) As the Supreme Court explained in Huskinson & Brown v. Wolf (2004) 32 Cal.4th 453, “Per mitting quantum meruit recovery . . . recogniz[es] that attorneys may recover from their clients the reasonable value of their legal services when their fee contracts or compensation agreements are found to be invalid or unenforceable for other reasons.” ( Id . at pp. 461-462; see also Calvert v. Stoner (1948) 33 Cal.2d 97; Selten v. Hyon (2007) 152 Cal.App.4th 463, 471-472 [“ When services are rendered under a contract that is unenforceable as against p ublic policy, but the subject services are not themselves prohibited, quantum meruit may be allowed.”].) Here, however, despite the availability in principle of recovery under quantum meruit, Stanton painted himself into a corn er by waiving quantum meruit and abandoning at trial his effort to collect the $430,000 fee he claimed under the February mediation agreement. Instead, he sought recovery of fees solely under the terms of the retainer agreement for which he sued fo r breach of contract, a trial stratagem he concedes in his appellate briefs. He writes, “A motif of [Don’ s] brief is that Mr. Stanton cannot recover any fee because he waived his right to a qua ntum meruit recovery. True. In reliance on

4 General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1169 is distinguishable because the contract alle gedly breached there was an employment contract for in-house counsel in his capacity as an employee, not for outside counsel acting as an independent professional.12 the trial court’s judicial estoppel ruling two y ears before trial, Mr. Stanton abandoned his quantum meruit, unjust enrichment, and de claratory relief causes of action, and proceeded to trial on the single cause of ac tion in his cross-comp laint for breach of
contract.” Stanton claims he abandoned quantum meruit in detrimental reliance on the court’s purported ruling that estopped Don from challenging the re tainer agreement’s validity – a claim that, as we explain below in section 4, the record does not support. But
whatever the reason for Stanton’s decision to abandon quantum me ruit, his recovery
under a breach-of-contract th eory collapsed wh en the trial court found that the contingency provision in the retainer agreemen t was void, leaving no other provision in the retainer agreement by which to calculate a contractual fee award. Absent a lawful contractual fee provision in the retainer agreement, Stanton’s only recourse was to recover fees in quantum meruit – but his trial strategy prevented that recovery.

2. Don’s Motion on Enforceability of Retainer Agreement
Before the case was submitted to the ju ry, Don moved for ju dgment on his claim that the retainer agreement was, as alleged in his comp laint’s cause of action for declaratory relief and in his 19th affirma tive defense to Stanto n’s cross-complaint,
unenforceable. 5 The court’s order granting Don’s mo tion recited the procedural history as follows: “[Don] brought on for hearing [his] Motion fo r judgment on [his] declaratory relief cause of action and/or [h is] 19th affirmative defense to [Stanton’s] cross-complaint. The parties fully briefed and ar gued the Motion by and through their attorneys of record. Thereafter, the Court granted th e Motion on the gro und that the Retainer Agreement upon which [Don’s] Complaint and [Stanton’s] Cross-Complaint were based was void against public policy due to undisclosed, unwaived , and irreconcilable conflicts of interest

5 Don styled his motion as one for a direct ed verdict, but because he was asking the court to decide the validity of the retainer agreement without submitting the matter to the jury or the jury’s involve ment, “directed verdict” was somewhat of a misnomer.13 created by the Retainer Agreement between the parties, which conflicts of interest were
not severable from the Re tainer Agreement.”
Stanton contends Don’s third cause of ac tion for declaratory relief concerned only the February mediation agreement, not the retainer agreement. Thus, according to Stanton, the retainer agreem ent’s validity was not properly before the court or jury. Stanton suggests Don’s motion blindsided him, because ev en though Don’s complaint had not requested a bench trial, that is ex actly what the court gave Don. Stanton’s respondent’s brief states: “In the proceeding s below, Mr. Fleischman said nothing about trying an equitable cause of action to the cour t until one month into th e jury trial. Saying nothing, his attorney impaneled a jury to try his legal malpractice cause of action and his breach of fiduciary duty cause of action. Then, Mr. Fleischm an asked the court to ‘try’ his declaratory relief cause of action after both sides had presented their evidence to the jury. . . . [¶] [Fleischman] asked the court to render ju dgment on the declaratory relief cause of action, sitting without the jury, as if a court trial had already occurred . . . .” (Original Italics.) The record does not support Stanton. Don’s complaint reasonably put Stanton on notice that Stanton’s fees under the retainer ag reement were at issue in the proceedings. Don’s complaint alleged in a paragraph incorpor ated by all causes of action that “[Don] retained [Stanton] to represen t him in connection with certai n matters relative to the case
of his mother . . . . In co nnection with such representa tion, there was purportedly a written retainer agreement be tween [Don] . . . on the one hand, and [Stanton], on the other hand, pursuant to which [Stanton and hi s law firm] now claim that they are entitled to both an hourly fee and con tingency fee . . . .” Elsewhere in his complaint in another paragraph incorporated by all causes of actio n, Don alleged that th e February mediation agreement was an additional agreement under which Stanton sought recovery of fees. That paragraph stated “In or about February 2001, a mediation was held between [Don] and Ken Kaplan to try to resolve disputes betw een them as to the al location of the estate
of Joan Fleischman. . . . An agreement was reached be tween [Don] and Ken Kaplan, which was memorialized in writing (‘Mediation Agreement’) . . . [Stanton] caused to be14 inserted into the Mediati on Agreement a provision for the payment of Defendants’ purported contingency fee.” Stanton notes that in an allegation contained in Don’s cause of action for declaratory relief, Don specifically noted a c ontroversy existed over payment of $430,000 in fees. Don alleged, “[Stanton and his firm] contend that [Don] owes [Stanton] attorneys’ fees in the amount of $430,000. [Don] is inform ed and believes any purported fee agreement to pay the sum sou ght by [Stanton and his firm] is invalid . . . .” Stanton’s claim that this one allegation lulled him in to thinking only the February mediation agreement was at issue is belied by Stanton’ s own cross-complaint. Stanton himself sought in his cross-complain t a declaratory judgment concerning the validity of the retainer agreement. He alleged in his cro ss-complaint, “An actual controversy now exists between STANTON on the one hand and [Don] on the other hand, with respect to the Fee Agreement. Stanton is inform ed and believes and thereon a lleges that [Don] contend[s] that the Fee Agreement is voi d and unenforceable. Stanton disputes such contention and contends that the Fee Agreement is va lid, enforceable and entitles Stanton to a contingency fee based upon the value of assets obtained by [Don] due to Stanton’s efforts. Stanton hereby seeks a declaration of this court as to the respective rights and obligations of Stanton and [Don] under the Fee Agreement.” Thus Stanton cannot reasonably claim he did not know the retainer agreement was at issue in the trial. Moreover, Stanton did not object to the co urt ruling on Don’s motion on the validity of the retainer agreement, and therefore cannot now be heard to compla in that he did not know the agreement was at issue. (Accord, Taylor v. Union Pac. R. Corp. (1976) 16 Cal.3d 893, 900 [“a party cannot without objection try his case before a court without a jury, lose it and then complain that it wa s not tried by jury”].) Stanton also contends the court’s ruling on Don’s motion amounted to an improper bench trial within a jury trial. His cont ention is unavailing. Don’s motion expressly asked the court to rule on his equitable cause of action for declaratory judgment. It is common for a claim for declaratory relief to be tried separately from legal claims, and the
trial court has the discretion to decide the sequence in which to try equitable and legal15 issues. (Evid. Code, § 320; Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265, 1285.) Because ruling on equitabl e issues may, as happened he re, dispose of issues that, depending on the ruling, the ju ry will no longer need to consider, the court may decide those equitable issues first. ( Raedeke v. Gibraltar Savings & Loan Assoc . (1974) 10 Cal.3d 665, 671; A-C Co. v. Security Pacific Nat. Bank (1985) 173 Ca l.App.3d 462, 473.) When a “case involves both legal a nd equitable issues the court may in its discretion decide the equitable issues first. If the decision as to the equitable issues is
such as is determinative of th e legal issues a jury trial as to the latter is obviated. If not, the jury trial as to the rema ining issues will follow.” ( Jaffe v. Albertson Co. (1966) 243 Cal.App.2d 592, 609.)
Stanton also contends the court erre d in its declaratory judgment because declaratory relief is available only prospectiv ely before a party breaches a contract. Stanton argues declaratory relief is not availabl e to adjust past wrongs or to declare rights or remedies for past harms. (See, e.g., Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1404 [“Because declar atory relief operates prospectively only, rather than to redress past wrongs, Gafcon’s remedy as against Ponsor lies in pursuit of a fully matured cause of action for money . . . .”].) Stanton’s contention overlooks, however, that the statute governing declarat ory relief permits a declaratory action when parties have an ongoing “actual controversy” involving their rights and duties as to, among other things, a contract or property in conjunction w ith seeking other types of relief. (Code Civ. Proc., § 1060.)
Stanton also contends that the court’ s ruling finding the retainer agreement void conflicted with the jury’s findi ngs. Stanton reasons that th e jury’s verdict that he had breached his fiduciary duties toward Don necessarily mean t the jury concluded the retainer agreement had created a lawyer-client relationship between him and Don, or else no fiduciary duty would exist to be breached. Acco rding to Stanton, th e jury’s finding of a valid retainer agreement barred the court from finding differently. In support, Stanton
cites Hoopes v. Dolan (2008) 168 Cal.App.4th 146, for th e proposition that the first fact
finder – which Stanton claims wa s the jury – binds later fact finders, such as, according to16 Stanton, the trial judge here. As Hoopes explained, “The order of trial, in mixed actions with equitable and legal issues, has great sign ificance because the first fact finder may
bind the second when determining factual issues co mmon to the equitable and legal issues. [Citations.] It is well established in California jurisprudence that ‘[t]he court may decide the equitable issues fi rst, and this decision may result in factual and legal findings that effectively dispose of the legal claims.’ [Citation.]” ( Id. at pp. 156-157.) But
Stanton’s reliance on Hoopes rests on his mistaken premis e that the jury reached its
verdict before the court ruled on Don’s moti on. In fact, the court ruled the retainer agreement was void before trial counsel had made their closing arguments and the case was submitted to the jury. Thus , the jury was not the first fact finder, and therefore its findings concerning facts common to the cause s of action it considered and the court’s declaratory relief judgment did not bind the court.

3. Severance of Provisions Restricti ng Right to Terminate and Settle

Stanton contends the court went too fa r by refusing to en force the retainer agreement and in ordering him to disgorge the fees Don pa id to him. According to Stanton, even if the court were correct thatthe retainer agreement unlawfully restricted Don’s right to terminate Stanton and settle his litigation with Dan, the proper remedy was to sever those provisions from the retainer agreement and enfo rce the agreement’s remaining provisions. And according to Stan ton, severance was especially appropriate because he did not try to enfo rce the two provisions involvi ng termination of his services and settlement of the litigation because they neve r came into play. We agree that because Stanton did not try to enforce the termination and settlement provisions, the court erred in ordering disgorgement.
Stanton cites decisions such as Marathon Entertainment, Inc. v. Blasi (2008) 42 Cal.4th 974, 990-991, in suppo rt of severance. In that case, an actress’s personal manager did not have a mandatory talent-age nt license when the manager procured a
contract for the actress to work on a television show. ( Id. at p. 981.) When the manager sued the actress for a percentage of her earn ings from the show as promised under their17 management contract, the trial court voided the management contract as an illegal
contract for unlicensed tale nt agency services. ( Id. at p. 982.) On review, the Supreme Court reversed the trial court’s voiding of the entire contract. The Supreme Court
remanded the matter to the trial court to c onsider whether severability allowed the contract’s partial enforcement to the extent legal provisions pr omoting lawful ends remained in the contract. ( Id. at pp. 990-991; see also Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 11 9 [applied severability to attorney fee agreement where illegal provision was New Yo rk lawyer trying to collect fees in California, which was unaut horized practice of law, but otherwise permitting compensation for lawful servi ces outside of California]; Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1523-1525 [applied severab ility to illegal charging lien provision in contingent fee agreement].) Severability exists to avoid the hardship of forfeiture for th e party seeking to enforce a partially illegal contract, and to avoid an undeserved windfall for the party seeking to void the contract. “Two reasons for severing or restricting illegal terms rather than voiding the entire contract appear implicit in case law. Th e first is to prevent parties from gaining undeserved benefit or suffering un deserved detriment as a result of voiding the entire agreement — particul arly when there has been fu ll or partial performance of the contract.” ( Armendariz v. Foundation Health Psychcare Servs. (2000) 24 Cal.4th 83, 123-124; accord Goldstein v. Lees (1975) 46 Cal.App.3d 614, 617 [representing new client adverse to former client is example of the sort of egregiousness needed to disgorge fees; disgorgement of attorneys fees wh ere attorney who had received confidential information accepted employment a dverse to former client].) Here, Stanton points to what he asse rts was his extensive work successfully representing Don, and for wh ich Don paid him without co mplaint until Don discharged him. Stanton claims he provided a numbe r of valuable legal services, including representing Don at the September 2000 medi ation against Dan and the February 2001 mediation against Ken; filing a petition to probate Art’s esta te; and preparing estate tax returns, including “pro forma” returns prepared to analyze various tax strategies and18 hypotheticals. Bolstering Stan ton’s claim, Don’s complaint alleged Don retained Stanton on a wide range of legal issues. The complain t alleged: “[Don] re tained [Stanton] to represent him in connection with certain matt ers relative to the case of his mother, Joan Fleischman, including, without limitation, issues involved in the removal of [Don’s] brother, Dan Fleischman, from control over th eir mother’s person and estate; disputes with Dan Fleischman arising out of numero us legal actions and proceedings initiated by Dan’s conduct, including a lawsuit against [Don], his half-brother (Ken Kaplan), his father (now deceased) the conservators of their mother’s esta te and others.” Among the services Stanton claims he provided to Don, the most important in Stanton’s mind appears to have been his re presenting Don in the mediations, a point Stanton emphasized in examining Don at trial. As to the September mediation, Stanton established from Don’s testimony that “Q. You were represented by Mr. Stanton at this [September 2000] mediation? [¶] A. He was the only one there that was representing me; that’s correct. [¶] Q. And he was there because you wanted him to be there; correct? [¶] A. . . . I can’t answer that yes or no. [¶] Q. Did he just show up? [¶] A. No. [¶] Q. You didn’t tell him not to go, did you? [¶] A. No, I did not. [¶] Q. And once you got there, you didn’t tell him to leave, did you? [¶] A. No, I didn’t. [¶] Q. And this was a mediation that st arted about 10:00 o’clock in the morning and ended the next day around 1:00 o’clock in the mo rning; right. [¶] A. That’s correct. [¶] Q. So you and Mr. Stanton were together fo r about 13 hours. [¶] A. I was there until about I believe 9:00 or 10:00 p.m. [¶] Q. And all during that time, Mr. Stanton was working on negotiations with the other lawyers to resolve the i ssues with Dan? . . . [¶] A. . . . I believe he was. [¶] Q. He was working on your behalf. . . . [¶] A. I believed that he was.” And according to Stanton, the benefits of his legal work in getting Dan to disinherit himself at the September mediation flowed into the February mediation, where
Ken sold his interest in Joan’s estate to Don. Don testifie d: “Q. Isn’t it a fact that the only reason that Dan Fleischman was not able to seek an inheritance right when your mother died was because by [the] terms of the mediation agreement of September 2000, he gave up his rights to inherit from your mother; correct? [¶] A. That’s how it19 happened. I don’t think that’s the only way it could have happened. [¶] Q. That’s the way it happened, sir? [¶] A. That’s correct. [¶] Q. And you were being represented by Mr. Stanton during the September 2000 mediati on? [¶] A. I was being represented by him and only him because of the conversation that we had, yes. [¶] Q. And did you tell Mr. Stanton, Mr. Stanton after the mediati on of September 2000, Mr. Stanton continued to represent you? [¶] A. I believe that he did. [¶] Q. And he represented you all the way to the so-called Ken mediation of February 2001? [¶] A. Yes.” The evidence Stanton cites to support his claim that the trial court should have severed the portions of the retainer agreement that it found unlawful and enforced the rest
creates a conflict in the record involving disputed issues of fact. For example, although Stanton appeared at both mediations, there wa s testimony that his role in the February mediation involving Ken was limited to draf ting language for an agreement brokered by others. As for Stanton’s filing a probate pr oceeding for Art’s estate , there was evidence probate was unnecessary because most of Art’s property was in trust, and the probate proceeding was a self-inflicted wound that se rved only to inflame Dan into filing his $100 million creditors claim against Art’s es tate at great expense to the estate.
But even if one views th e evidence in the light mo st favorable to Don, we
conclude the trial court abused its discretion in ordering Stanto n to disgorge all fees that
he received. “We review the trial court’s determ ination as to the existence of an actual or potential conflict and whether such conflicts are sufficiently eg regious to require forfeiture of fees for abuse of discretion.” ( Mardirossian & Associat es, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 278. ) Before a court may order forfeiture, the court must find that the penalty is not too harsh for the offense. ( Lewis & Queen v. N. M. Ball Sons (1957) 48 Cal.2d 141, 151.) In support of the court’s disgorgement order requiring
Stanton to forfeit all fees he received fro m Don, Don relies on the notion that legal
services rendered in violation of professional ethics are de emed to have no value. ( Day v.
Rosenthal (1985) 170 Cal.App.3d 1125, 1162.) But that notion, which is a legal fiction in its “deeming” such services to have no va lue regardless of the reality of whether the client benefitted from the attorney’s services, finds little support in the record here for at20 least two reasons involving at least a portion of those fees. First, in finding Stanton did not negligently perform his services, the ju ry found Stanton performed competently in representing Don; competent legal services ha ve some value greater than zero. Second,
the most reliable evidence of the value of Stanton’s legal wo rk for Don are the fees that Don paid to him without co mplaint until their dispute er upted – which amounted to $113,000. The trial court correctly foun d Stanton could not rely on the unlawful provisions of his retainer agreement to collect a contingency fee from Don’s multimillion dollar recovery, but that does not mean Stanton wrongl y received the hourly fees that Don paid him. Because Stanton did not try to enforce the unlawful provisions, they were of no consequence in the hourly fees Stanton collected and th erefore did not taint those hourly fees. ( Jeffry v. Pounds (1977) 67 Cal.App.3d 6, 9, 12 [fees recoverable until ethical conflict arises between attorney and c lient].) Consequently, the trial court’s order compelling Stanton to disgorge those fees was unwarranted. ( Armendariz v. Foundation Health Psychcare Servs., supra, 24 Cal.4th at pp. 123-124 [party who performed under
contract should not suffer for having performed, and pa rty who benefitted from the other’s performance should not en joy an undeserved windfall] .) Accordingly, we will modify the trial court’s dis gorgement order to permit Stan ton to keep at least the $113,000 in hourly fees th at he received from Don.
Don cites Goldstein v. Lees (1975) 46 Cal.App.3d 614, for the proposition that an attorney may not collect fe es for “services are rendere d in contradiction to the requirements of professional responsibility.” ( Id. at p. 618.) That proposition does not apply here because Stanton’s services did no t violate his professional responsibilities in rendering those legal services for which Don compensated him $113,000 in hourly fees. Stanton’s breach of professional responsi bilities rested on his including two unlawful provisions in his retainer agreement, but he did not try to enforce those provisions. The
difference between Stanton’s conduct and the unprofessional conduct in Goldstein which Don cites is illuminating. In Goldstein , the attorney represented a new client who was
adverse to a former client from whom the atto rney had received conf idential information. ( Id. at p. 617.) The court found the attorney ’s conduct sufficiently egregious to warrant21 disgorging fees because the esse nce of the violation – repres enting adverse clients – went to the very core of th e representation. (See Huskinson & Brown v. Wolf, supra, 32 Cal.4th at p. 463 [n oting fees denied in Goldstein because attorney sought compensation from a attorney-client relations hip that professional rules prohibited].) Here, in contrast, the essence of Stanton’ s representation of Don was proper – only his efforts to ensure his payment of his contingency fee were wrongful. (See Fair v.
Bakhtiari (2011) 195 Cal.App.4th 11 35, 1161 [drawing distin ction between attorneyclient relationship where essence of repres entation is unlawful versus relationship in which unlawful conduct exists].) As for that portion of the disgorgement order directing Stanton to return the $287,755 in fees recovered from Joan’s Ma ssachusetts Mutual life insurance policy, procedural irregularities involvi ng the court’s disgorgement order require us to reverse
and remand the matter to the trial court. In November 2008, the jury rendered its verdict
in which it found Stanton had breached his fi duciary duty to Don but Don had not been harmed. The jury also found Stanton had not been negligen t in representing Don. Two months later in January 2009, Don moved for en try of judgment and fo r attorney’s fees as the prevailing party. The ca ption on Don’s moving papers di d not refer to disgorgement,
and the “Conclusion” section of his supporting memorandum of points and authorities did not pray for disgorgement. Nevertheless, and despite the jury’s verdict awarding no damages to Don, the court ordered Stanton to disgorge all fees that he received, leaving him without a penny for his efforts on Don’s be half. We have already concluded Stanton is entitled to keep the hourly fees he collected. But the pos tverdict procedural history thwarts our ability to determine the propriety of the rest of the court’s disgorgement order, given that it followed a motion that did not style itself as one for disgorgement. Accordingly, we will remand this matter to the trial court for it to determine, in the first instance, the amount, if any, of nonhourly fees Stanton must disgorge to Don.

4. Don Not Estopped From Cha llenging Retainer Agreement
The settlement agreement between Ken an d Don resulting from the February 200122 mediation ostensibly promised Stanton $430,000 in fees. After the mediation, Don
claimed Stanton was not entitled to those fees because Stanton was not a party to the mediation and therefore had no standing to seek fees from that proceeding. In response, Stanton sought his fees from the probate of Jo an’s estate. In the probate proceeding, Don resisted Stanton’s attempt to recover his fees, but argued as a fallback position that, if the probate court awarded Stanton fees, the pr obate court should apply the retainer agreement’s appraisal provision to calculate th e amount of those fees. Don argued: “The Retainer Agreement specifically provides for the procedure to follow if there is a fee dispute: . . . [¶] Paul Stanton drafted th e Retainer Agreement. He should be bound by that agreement which is directly between hi m and his former client. Since the parties agreed through the Retainer Agreement on th e procedure for the resolution of any fee dispute, Don Fleischman respectfully reques ts that the Court order that the Retainer Agreement be enforced and the procedures specified therein to resolve fee disputes be followed.” The probate court did not, however, resort to Don’s fall back position that the retainer agreement’s appraisal provision shou ld bind Stanton because the probate court accepted Don’s contention that the February mediation agreement did not entitle Stanton to fees. In an unpublished decision, our colleagues in Di vision 4 affirmed the probate court. ( Stanton v. Fleischman, supra, (B158265) slip opn. at p. 3.) In the later trial court proceedings here, the court ordered Don to participate in an appraisal of the commercial and residentia l properties in Joan’s and Art’s estates. 6 In ordering the appraisal, the court relied on th e retainer agreement wh ich provided for an appraisal if Don and Stanton co uld not agree on the value of Don’s recovery from Dan. The appraisal provision stated: “Since any settlement [between Don and Dan] will most likely be partially non-cash, we [i.e. Stanton a nd his law firm] are stil l entitled to be paid
our fee based on the value of the total recove ry. If we are unable to agree regarding the value of the non-cash assets (if any) rece ived by virtue of a ny settlement or other

6 A previous judge in th is case (Hon. Alexander W illiams), who later recused himself, had denied in a 2005 motion to comp el appraisals, but his denial was vacated upon his recusal.23 recovery, we agree to have the value of such non-cash assets determined by an appraiser mutually selected by us (or if we cannot ag ree on an appraiser, upon an appraiser selected by two appraisers, one of whic h would be selected by you and the other which would be selected by us). We agree in any event to be bound by the valuation of such appraiser.” Finding that Don was estopped from arguing th e appraisal clause was illegal, the court appointed an appraiser in May 2007. The court thereafter c onfirmed the appraised values
as arbitration awards. Stanton argues based on the foregoing ev ents that Don should be estopped from challenging the retainer agreement because Don had urged enforcement of the retainer agreement in the probate court. Stanton read s too much into the record. Don only urged enforcement in the probate cour t of the retainer agreement’s appraisal provision , and did so as a fallback position if the probate cour t accepted Stanton’s claim for fees. Don did not address the retainer agreement’s enforceab ility as a whole. Indeed, after the trial court ordered Don to participate in the appr aisal of the properties in Joan’s and Art’s estates, Don moved for clarification of the court’s order. The court denied Don’s motion
for clarification because it deemed it a thinly-disguised improper motion for reconsideration. In finding that Don was judicially estopped from challenging the appraisal provision , the court expressly stated it had not ruled on the retainer agreement
as a whole. The court stated: “I will offe r this for anybody’s gui dance. My ruling was intended only to deal with the provision of th e agreement that called for the appraisal of the various properties in order to[,] if the agreement was otherwise enforceable, implement the manner of calculating the fee.” We review the facts supporting a tria l court’s application of estoppel for substantial evidence, and independently review questions of law involving its application. Applying those standards of review, we re view the court’s decision whether to apply estoppel for abuse of discreti on. “The determination of whether judicial estoppel can apply to the facts is a question of law revi ewed de novo, i.e., independently, but the findings of fact upon which the application of judicial estoppel is based are reviewed
under the substantial evidence standard of review . . . . [¶] Even if the necessary elements24 of judicial estoppel are found, because judicial estoppel is an equitable doctrine [citation], whether it should be applied is a matter w ithin the discretion of the trial court. [Citations.] The exercise of discretion for an equitable determination is reviewed under an abuse of discretion standard.” ( Blix Street Records, Inc. v. Cassidy (2010) 191 Cal.App.4th 39, 46-47.) Here, the probat e court accepted Don’s argument only as to the appraisal provision. Judicial estoppel reaches only those arguments that a court accepts. ( The Swahn Group, Inc. v. Segal (2010) 183 Cal.App.4th 831, 835; Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.) Hence, the trial court did not abuse its discretion in finding Don was no t judicially estopped from challenging provisions of the retainer agreement other than the appraisal provision, such as the
termination and se ttlement provisions.

5. Attorneys’ Fees to Don
After the trial, Don moved for his attorn eys’ fees. He argued he was entitled to them as the prevailing party under the retainer agreement’s provision for attorneys’ fees. (Civ. Code, § 1717 [makes attorn eys’ fees reciprocal in acti on on contract when contract awards fees to only one party].) The trial court found that Don wa s the prevailing party under his complaint because, among other re asons, the court’s declaratory relief and disgorgement order requiring Stanton to return his fees gave Don a net monetary recovery, and Stanton was awarded nothing against Don. (Code Civ. Proc., § 1032, subd. (a)(4).) The court also f ound that as for Stanton’s cro ss-complaint for breach of the retainer agreement, Don again was the pr evailing party becaus e Stanton recovered nothing. Don filed a memorandum of costs reques ting $688,624 in attorneys’ fees and
costs. Stanton moved to tax as unreas onable the amount Don sought. The court thereafter awarded Don $688,624. Stanton’ s challenge on appeal to the award of attorneys’ fees and costs boils down to the assertion that because Don sued Stanton for malpractice and breach of fiduciary duty, but the jury awarded Don no damages, Don cannot be the prevailing party. But the trial court conclude d otherwise, finding Don was25 the prevailing party. Our par tial reversal of the court’s di sgorgement order changes the factual underpinnings of the court’s fee and cost award because we have, as an initial matter in ordering remand to reconsider the amount, if any, of disgorgement, reduced by more than two-thirds Don’s net monetary rec overy on which he rested his claim of being the prevailing party. Accordingly, in conjun ction with the remand to the trial court to
determine whether Stanton must disgorge any fees, we additio nally direct the trial court
to determine in the first inst ance whether there is a prevailing party, and if so, whether fees and costs should be awarded, and if so, the proper amount of any such fees and costs.

CROSS-APPEAL
Don filed a protective cross-appeal in th e event we reversed the judgment in his favor. Because we have partly reversed th e judgment, we address the contentions that Don raises in his cross-appeal.

1. Valuation Date of Real Estate
To calculate the 20 percent contingenc y fee that Stanton sought from Don’s recovery of Art’s and Joan’s estates agains t Dan and Ken, the court accepted Stanton’s assertion that the property appraiser should asse ss the value of the recovered real estate as close as practical to the time of trial in 2008 . Don contends that th e court erred and that the appraiser should instead have assessed the properties’ values as of 2001, when
Stanton claims he was entitled to collect hi s contingency fee. Because our partial reversal of the trial court’s judgment does no t upset the trial court’s ruling that Stanton was not entitled to collect any contingency fee at all, Don’s concern about the properties’
valuation date is moot.

2. Jury Instructions on Fiduciary Duty
Don claimed a cause of action against St anton for breach of fiduciary duty. The jury found Stanton breached his duty, but that the breach caused Don no damage. The26 court’s principal instructions to the jury on breach of fiduciary duty included the following instructions:

● “Don Fleischman also seeks to recover damages based upon a claim of breach of fiduciary duty. The essential elements of this claim are: [¶] 1. A fiduciary relationship existed between Don Fleischman and Paul Stanton; [¶] 2. Paul Stanton possessed information material to D on Fleischman’s interest; [¶] 3. Paul
Stanton knew or should have known that this information was material to Don Fleischman’s interest; [¶] 4. Paul Stanton failed to disclose this material information to Don Fleischman; and [¶ ] 5. This nondisclosure caused Don Fleischman to suffer injury , damage, loss or harm. [¶ ] A fiduciary relationship
exists whenever under the circumstances trust and confidence reasonably may be and is reposed by one person in the integrity and fidelity of another. [¶] There was a fiduciary relationship between Don Fl eischman and Paul Stanton. [¶] A fiduciary’s duty requires the highest good faith and undivided service and loyalty. [¶] A fiduciary has a duty to make full disclosure and communicate to the person with whom he has a fiduciary relationship, all information that is material to that person’s interest.”

● “A fiduciary must tell his principal of all information he possesses that is material to the prin cipal’s interests.”

The court refused, howeve r, to instruct th e jury with a number of additional instructions that Don offered on fiduciary duty . We conclude the court’s refusal was not
error because the court’s other jury instructions covered most of the same points of law stated in Don’s instructions. ( Williams v. Carl Karche r Enterprises, Inc. (1986) 182 Cal.App.3d 479, 487 overruled on other grounds by Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574 [“not error to re fuse instructions wh ich are repetitious in substance and would serve only to emphasize unduly a party’s th eory of the case”].) But27 even if the court’s instructions did not cove r every point of law that Don advanced, the court’s refusal to give Don’s additiona l instructions did not prejudice Don.

For example, Don contends the court erre d by refusing to instruct the jury with Don’s special instruction based on CACI 41 06 that Stanton breached his fiduciary duty by representing clients with conflicting interest s. We find the court did not err, however,
because the court instructed th e jury that an attorney must not represent adverse clients except under certain conditions, including disclosure to eac h client and each client’s written consent. Citing Professional Rules of Conduct, rule 3-310, the court instructed the jury: “Rule 3-310, titled ‘Avoiding the Re presentation of Adverse Interests’ states: A member shall not, without the informed written consent of each client: Accept representation of more than on e client in a matter in whic h the interests of the clients potentially conflict.” The court’s instructio n with Rule 3-310 wa s sufficient because it covered the same points as Don’s special inst ruction. The “duty of the court is fully discharged if the instructions given by the court embrace all the points of the law arising in the case. [¶] A party is not entitled to have the jury instructed in any particular phraseology and may not complain on the gr ound that his requested instructions are refused if the court correctly gives the subs tance of the law applicable to the case.” ( Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 335.)

Don also contends the court erred in not submitting Don’s Special Instruction No. 3 to the jury, which stat ed Stanton’s fiduciary obliga tion included offering a fee agreement and billings that were “fair, reasonab le, and fully explained to the client.” We conclude the court did not err, however, becaus e the court instructed the jury with the requirements of Business and Professions Code sections 6147 and 6148, which informed the jury that an atto rney must give a client a written fee agreement comp lying with those statutes’ requirements that the ag reement fully explain the fees.

Don also contends the court erred in not submitting to the jury Don’s Special Instructions Nos. 5 and 6, which stated the contingency fee agreement and February mediation agreement were invalid if they ga ve Stanton a pecuniary interest in Don’s property unless Stanton disclosed his interest and Don waived the conflict. We find the28 court did not err, however, because it instructed the jury with Rule 3- 300. The court told the jury: “Rule 3-300, titled ‘Avoiding Intere sts Adverse to a Client’ states: A member
shall not enter into a business transaction with a client, or knowingly acquire an ownership, possessory, security, or other pec uniary interest adverse to a client, unless each of the following requirement s has been satisfied: [¶] (A) The transaction or acquisition and its terms are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a ma nner which should reas onably have been understood by the client; and [¶] (B) The clie nt is advised in writing that the client may seek the advice of an independent lawyer of the client’s choice and is given a reasonable opportunity to seek that advice ; and [¶] (C) The client th ereafter consents in writing to the terms of the transaction or the terms of the acquisition.”

Don also contends the court erred in not submitting to the jury Don’s Special
Instructions Nos. 9 and 10 which stated Stant on could not charge or sue Don for fees for Stanton’s services to Art’s probate estate unless the probate court approved Stanton’s fees. We find the court did not err, however, because it instructed th e jury with Probate Code sections 10800 and 10811 governing lawful probate fees, and Probate Section 10813 prohibiting an attorney from charging mo re than the Probate Co de’s statutory fees.

Finally, Don does not show for any of th e refused instructions that their omission sufficiently prejudiced him to warrant a retrial, even when we view those instructions in the light most favorable to Don. ( Alcala v. Vazmar Corp. (2008) 167 Cal.App.4th 747, 754.) Don contends, for example, that the c ourt erred in refusing his Special Instruction
No. 1 that stated a breach of fi duciary duty need not be inten tional and need not harbor an
intent to deceive in order to be actionable. We note, however, that the jury found Stanton breached his fiduciary duty, making Special Instruction No . 1 superfluous. Finally,
because Don’s omitted instructions covered Stanton’s duties, and did not instruct on calculating damages, Don does not show how the omitted instructions would have changed the jury’s calculation that Stanton’s breach of fiduciary duty did not damage
Don.29 DISPOSITION
Those portions of the judgment ordering Paul Stanton (1) to disgorge $400,755 in attorneys’ fees receiv ed from Don Fleischman and (2) to pay Don Fleischman interest on the judgment and his attorneys’ fees and costs, are reversed . The matter is remanded to the trial court to (1) determine the amount, if any, of nonhourly attorneys’ fees Stanton must disgorge to Fleischman; (2) recalculat e interest on the judgment , if any, and, (3) redetermine whether there is a prevailing party, and if so, whether any fees or costs should be awarded, and if so , the proper amount of fees a nd costs, if any, should be awarded. In all other respects the judgment is affirmed. The parties shall bear their own costs on appeal.

RUBIN, J. WE CONCUR:

BIGELOW, P. J.

GRIMES, J.