Filed 12/1/21 Currency Corp. v. Wertheim CA2/1

Opinion following rehearing

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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 ONE

CURRENCY CORP., et al.,

Plaintiffs and Respondents,

v.

WERTHEIM, LLC,

Defendant and Appellant. 

 B276506

 (Los Angeles County

 Super. Ct. No. BC417798)

APPEAL from an order of the Superior Court of Los 

Angeles County, David Sotelo, Judge. Affirmed.

The Rubin Law Firm, Brett M. Rubin; Law Offices of F. Jay 

Rahimi, F. Jay Rahimi for Defendant and Appellant. 

Huarte Appeals, Anne M. Huarte for Plaintiffs and 

Respondents.

___________________________________
2

In 2006, Currency Corporation loaned $6,500 to Maibell 

Page, the transaction memorialized by a promissory note that 

contained an attorney fees provision. A dispute arose, and Page 

assigned her rights against Currency Corporation to Wertheim 

LLC.

Wertheim then initiated legal proceedings against 

Currency Corporation spanning 15 years. Those proceedings 

branched into an arbitration portion—which has itself spun off 

three lawsuits and resulted in four appeals (including this one)—

and a separate lawsuit. 

The arbitration portion of the dispute is now over. In it, 

Wertheim achieved nothing.

Currency Corporation and its affiliates sought attorney fees

incurred in the arbitration portion of the dispute, which the trial 

court granted in the amount of $1.2 million.

Wertheim contends the court abused its discretion in 

awarding fees to Currency Corporation and its affiliates. We 

disagree, and therefore affirm. 

BACKGROUND

A. Loans

Parviz Omidvar and his relatives, Oliver and O’Neil 

Omidvar, and their company, Tiffany Ventures, LLC (the 

Omidvar parties), along with Currency Corporation (we will refer 

to the Omidvar parties and Currency Corporation collectively as 

“Currency”), loaned money at high interest rates to elderly artists 

who owned royalty rights. In exchange, the artists would assign 

their royalties to Currency. Currency made some 80 loans to 

Maibell Page, the widow of Eugene Page, a successful songwriter.

Maibell assigned to Currency the royalty rights she derived 

from Eugene.
3

1. The June 2006 Note

On June 2, 2006, Currency made the loan that is the

subject of this and three related actions. As evidenced by a 

promissory note (the June 2006 note), Currency loaned Maibell 

Page $6,500 for six months at an interest rate of two percent 

compounded every 10 days, with an administrative fee of 10 

percent.

The June 2006 note contained an arbitration clause and 

three attorney fees provisions.

The first fee provision stated: “[I]n connection with any 

claim or dispute arising out of or relating to this Note, including 

any litigation, arbitration or other proceeding alleging a breach of 

the terms of this Note, the prevailing party shall recover . . . 

reasonable attorneys’ fees and costs incurred by such party 

prosecuting or defending such claim or dispute.” 

The second provision stated: “The losing party shall 

reimburse the prevailing party for its reasonable outside 

attorneys’ fees and costs incurred with respect to [any]

Arbitration proceeding.” 

The third attorney provision stated: “Borrower shall 

reimburse [Currency Corp.] for . . . reasonable attorneys’ fees, 

expended or incurred by [it] in any arbitration or otherwise in

connection with (a) . . . enforcement of the Loan Documents, 

including . . . rendering of legal advice as to the Holder’s rights, 

remedies and obligations under the Loan Documents, 

(b) collecting any sum which becomes due to the Holder under 

any Loan Document, (c) any proceeding for declaratory relief, any 

counterclaim to any proceeding or any appeal, or (d) the 

protection, preservation or enforcement of any right or remedies 

of the Holder.” 
4

2. Second Assignment

In 2006, Page assigned to David Pullman, as principal of 

Wertheim, LLC, the royalty rights she had already assigned to 

Currency, as well as any causes of action she might have against 

Currency.

Pullman/Wertheim and Currency then entered into a legal 

dispute over Page’s royalty stream, each contending the other 

made a widespread practice of swindling the gullible elderly. 

(E.g., Currency Corp. v. Wertheim (May 20, 2011, B222851)

[nonpub. opn.] (Currency I).)

The dispute took two tracks—an arbitration track and a 

lawsuit track. (The arbitration track itself spun off three 

lawsuits.) This appeal concerns only the arbitration track.

B. Arbitration Track

On June 8, 2009, Wertheim filed a form demand for 

arbitration with the American Arbitration Association, alleging 

causes of action against Currency for fraud, breach of contract, 

and elder abuse. Wertheim contended that each of the scores of 

transactions between Maibell Page and Currency was subject to 

the arbitration clause found in the June 2006 note. It demanded 

$5 million.

1. Instant Lawsuit to Enjoin Arbitration: LASC Case 

No. BC417798

A month later, on July 14, 2009, Currency filed the instant 

lawsuit, Los Angeles Superior Court (LASC) case No. BC417798, 

against Page and Wertheim for declaratory and injunctive relief, 

seeking to enjoin arbitration or confine it to the June 2006 note.

2. Cross-Complaint

Page and Wertheim cross-complained against the Omidvar 

parties only (not Currency Corporation) for fraud, breach of 
5

fiduciary duty, and racketeering, alleging the Omidvar parties 

were Currency Corporation’s alter egos.

3. Arbitration Award

Meanwhile, the arbitration panel awarded Wertheim 

$672,122 against Currency Corporation only, which the superior 

court confirmed.

4. Collection Litigation: LASC Case Nos. BC444248 

and BC441026

Wertheim attempted to collect on the arbitration award, 

both in the instant lawsuit and by filing an enforcement action,

LASC case No. BC444248, against Currency Corporation, the 

Omidvar parties (as alter egos of the Currency Corporation), and 

approximately 50 third-party royalty payors.

Currency Corporation and Parviz Omidvar responded by 

filing a declaratory relief action to block enforcement, LASC case 

No. BC441026. 

The trial court consolidated the enforcement and counterenforcement actions, and deemed them related to the instant 

lawsuit. 

5. Currency II

In 2013, we held that only the June 2006 note contained an 

arbitration clause, and that note pertained only to one loan. 

Therefore, the arbitrators exceeded their authority by rendering

an award on 79 other loans made by Currency to Page. 

Accordingly, we reversed the judgment confirming Wertheim’s 

arbitration award and directed the trial court to vacate it. 

(Currency Corp. v. Wertheim (Sept. 30, 2013, B240444) [nonpub. 

opn.] (Currency II).)
6

6. Remand Proceedings

Upon remand, the trial court dismissed the consolidated 

enforcement and counter-enforcement actions, and Maibell Page

dismissed her cross-complaint. (Wertheim had already been 

dismissed from the cross-complaint for lack of standing.)

Wertheim moved for an order directing the original 

arbitrators to affirm their findings and fashion a new award in 

Wertheim’s favor. However, the trial court observed that because 

Currency’s complaint sought only to enjoin or limit arbitration, 

and the cross-complaint had been dismissed, our ruling in 

Currency II effectively ended the lawsuit. Therefore, the court 

placed Wertheim’s motion off calendar.

On January 8, 2015, the court entered judgment in favor of 

“Currency Corp.” and “Parviz Omidvar, Oliver Omidvar, O’Neil 

Omidvar and Tiffany Ventures, LLC,” declared “Currency” to be 

the prevailing party, and stated it would consider the entitlement 

of “Plaintiff Currency Corp. and Plaintiffs and Cross-Defendants 

Parviz Omidvar, Oliver Omidvar, O’Neil Omidvar and Tiffany 

Ventures, LLC” to attorney fees upon their submission of a 

memorandum of costs and motion to recover them. 

7. Currency III

Wertheim appealed from the judgment, contending the 

matter should be ordered back to arbitration for a revised award. 

We disagreed, holding: “The remand disposed of all issues raised 

by Currency’s complaint, as Currency had sought only to enjoin 

arbitration or, in the alternative, to limit its scope to the June 

2006 note. The trial court therefore properly dismissed the 

complaint.” (Currency Corp. v. Wertheim (May 30, 2018, 

B262441, p. 8) [nonpub. opn.] (Currency III).)

Wertheim also contended the trial court erred in declaring 

Currency to be the prevailing party. We disagreed: “Currency II
7

granted the relief Currency sought by limiting arbitration to the 

June 2006 note. Therefore, the trial court was well within its 

discretion to designate Currency the prevailing party.” (Currency 

III, supra, B262441, at p. 9.)

8. Attorney Fees

While Currency III was pending, Currency Corporation and 

the Omidvar parties moved for attorney fees incurred in: (1) the 

instant lawsuit to enjoin arbitration; (2) arbitration proceedings; 

(3) proceedings to vacate the arbitration award; (4) Currency II; 

(5) the first remand proceedings; (6) Currency III; (7) the second 

remand proceedings; (8) the consolidated enforcement actions; 

and (9) defense against the cross-complaint in this action during 

the 10 months it was consolidated with another lawsuit, post. 

They supported the motion with invoices from nine attorneys who 

had worked on the case over six years and declarations from 

eight of them. Currency’s evidence indicated that its attorneys 

spent 4,109.46 hours in this litigation, at an average hourly rate 

of $301, resulting in a total fee bill of $1,237,501. 

The trial court granted the motion, awarding the Currency 

parties $1,237,501.00, jointly and severally against Wertheim, 

LLC and “Christopher Eugene Page, Trustee.” 

Wertheim appeals from that post-judgment fee order. 

C. Lawsuit Track: LASC Case No. BC530925

In December 2013, Wertheim and Page filed an 

independent lawsuit against Currency, LASC case No. 

BC530925. At Wertheim’s request, the trial court consolidated 

that case with the instant lawsuit, but 10 months later entered

final judgment in this lawsuit and, over Wertheim’s objection, 

severed the cases. The parties report that judgment was entered 

in case No. BC530925 on December 16, 2015. (As noted above, 
8

this appeal concerns only the arbitration track of the 

Wertheim/Currency dispute, not the BC530925 lawsuit.)

DISCUSSION

Wertheim contends: (1) Any fee award should be limited to 

litigation on the June 2006 note alone; (2) respondents were not 

the prevailing parties; (3) the fee award was unsupported by 

substantial evidence; and (4) the amount of fees incurred was 

unreasonable.

A. Applicable Law

“Except as attorney’s fees are specifically provided for by 

statute, the measure and mode of compensation of attorneys . . . 

is left to the agreement, express or implied, of the parties . . . .” 

(Code Civ. Proc., § 1021.) 

“In any action on a contract, where the contract specifically 

provides that attorney’s fees and costs, which are incurred to 

enforce that contract, shall be awarded either to one of the 

parties or to the prevailing party, then the party who is 

determined to be the party prevailing on the contract, whether he 

or she is the party specified in the contract or not, shall be 

entitled to reasonable attorney’s fees in addition to other costs.” 

(Civ. Code, § 1717, subd. (a).)

When an attorney fee provision encompasses fees incurred 

in connection with claims or disputes relating to the contract, fees 

may be awarded not only as to the contract claim, but also as to 

related claims. (Maynard v. BTI Group, Inc. (2013) 216 

Cal.App.4th 984, 993.)

Contractual fees may be recovered as costs. (Code Civ. 

Proc., §§ 1033.5, subd. (a)(10)(B), 1032, subd. (b).)

“[T]he primary method for establishing the amount of 

‘reasonable’ attorney fees is the lodestar method. The lodestar 
9

(or touchstone) is produced by multiplying the number of hours 

reasonably expended by counsel by a reasonable hourly rate.” 

(Lealao v. Beneficial California, Inc. (2000) 82 Cal.App.4th 19, 26

(Lealao).) Once the trial court has fixed the lodestar, “it shall 

consider whether the total award so calculated under all the 

circumstances of the case is more than a reasonable amount and, 

if so, shall reduce the [Civil Code] section 1717 award so it is a 

reasonable figure.” (Sternwest Corp. v. Ash (1986) 183 

Cal.App.3d 74, 77.) The lodestar may be adjusted at the 

discretion of the trial court “after consideration of a number of 

factors, including the nature of the litigation, its difficulty, the 

amount involved, the skill required in its handling, the skill 

employed, the attention given, the success or failure, and other 

circumstances in the case.” (Melnyk v. Robledo (1976) 64 

Cal.App.3d 618, 623-624.)

The trial court has broad authority to determine the 

amount of reasonable attorney fees. (PLCM Group, Inc. v. 

Drexler (2000) 22 Cal.4th 1084, 1095.) We review a court’s 

determination under the abuse of discretion standard. (Lealao, 

supra, 82 Cal.App.4th at p. 25.) “ ‘ “The appropriate test for 

abuse of discretion is whether the trial court exceeded the bounds 

of reason. When two or more inferences can reasonably be 

deduced from the facts, the reviewing court has no authority to 

substitute its decision for that of the trial court.” ’ ” (Goodman v. 

Lozano (2010) 47 Cal.4th 1327, 1339.)

The “ ‘ “experienced trial judge is the best judge of the value 

of professional services rendered in his court . . . .” ’ ” (Chavez v. 

Netflix, Inc. (2008) 162 Cal.App.4th 43, 64.) Even if he or she did 

not preside over the trial, a trial judge has a unique familiarity 

with the value of services in the community and the skill and 
10

time commitments necessary to litigate specific types of cases. 

Thus, “while [the trial judge’s] judgment is of course subject to 

review, it will not be disturbed unless the appellate court is 

convinced that it is clearly wrong.” (Ibid.)

B. The Scope of Fees

Here, the first fee provision in the June 2006 note stated: 

“[I]n connection with any claim or dispute arising out of or 

relating to this Note, including any litigation, arbitration or other 

proceeding alleging a breach of the terms of this Note, the 

prevailing party shall recover . . . reasonable attorneys’ fees and 

costs incurred by such party prosecuting or defending such claim 

or dispute.”

Although the June 2006 note was the only one containing 

an arbitration provision, Wertheim expanded arbitration beyond 

that note by claiming it was part of a unified transaction, and its 

arbitration provision applied to the 79 other notes in the 

transaction. All litigation that resulted from the arbitration was 

incepted and maintained either to pare back or preserve this 

claim. Therefore, the entire arbitration track—including the 

instant lawsuit and cross-complaint, the arbitration proceedings

and challenges thereto, both prior appeals and this one, all 

proceedings upon remand, and the enforcement actions—related 

to and arose from the June 2006 note. All fees incurred on that 

track were thus recoverable by the prevailing party.

Wertheim argues Currency is entitled to recover fees

incurred only in actions “brought on the $6,500 Note.” We 

disagree. The fee provision did not limit fees to those incurred in

litigating the June 2006 note, but expanded them to those 

incurred in any litigation “arising out of or relating to” that note.
11

Wertheim argues that fees may be recovered under the 

reciprocity provision of Civil Code section 1717 only where the 

action had a reasonable chance of success. Because its alter ego 

allegations against the Omidvar parties in the cross-complaint 

had no chance of success, Wertheim argues, the Omidvar parties 

cannot recover fees incurred in defending against the crosscomplaint.

 The argument is without merit. Under Civil Code section 

1717, the prevailing party is entitled to recover fees “so long as 

the party pursuing the lawsuit would have been entitled to 

attorney’s fees had it prevailed. [Citations.] . . . [I]t would be 

inequitable to deny attorney’s fees to one who successfully 

defends, simply because the initiating party filed a meritless 

case.” (Rainier National Bank v. Bodily (1991) 232 Cal.App.3d 

83, 86.)

C. Currency Corporation, Parviz Omidvar, Oliver 

Omidvar, O’Neil Omidvar, and Tiffany Ventures, LLC are 

the Prevailing Parties

Wertheim argues there has never been a finding that 

Currency is the prevailing party in this case. It is incorrect. In 

January 8, 2015, the trial court entered judgment in favor of 

“Currency Corp.” and “Parviz Omidvar, Oliver Omidvar, O’Neil 

Omidvar and Tiffany Ventures, LLC,” and declared “Currency” to 

be the prevailing party. Although the court did not explicitly 

define “Currency,” its use of the term “Currency Corp.” when 

referring to the corporation, and “Parviz Omidvar, Oliver 

Omidvar, O’Neil Omidvar and Tiffany Ventures, LLC” when 

referring to the other parties, implied that the term “Currency” 

meant all parties collectively. (The judgment’s inconsistent 

practice of alternately individuating and collectivizing the parties 
12

resulted from the judge or clerk interlineating an otherwise 

attorney-prepared document.) This implication is bolstered by 

the fact that the court invited all plaintiffs to submit a motion for 

attorney fees, which it would not have done had it not deemed 

them all to be prevailing parties. 

We affirmed this implied prevailing party determination in 

Currency III.

Wertheim argued in Currency III, and repeats here, that 

Currency cannot be deemed the prevailing party because it filed 

this action “solely” to enjoin the arbitration, and no ruling has yet 

precluded arbitration on the June 2006 note—Currency II simply 

confined arbitration to that note. This misstates the record. As 

we observed in Currency III, although Currency sought to enjoin 

arbitration altogether, it also prayed in the alternative “that the 

arbitration . . . be limited in scope to . . . the specific Promissory 

Note at issue,” i.e., the June 2006 note. Because Currency 

achieved this alternative objective, we held, the trial court 

properly deemed it the prevailing party. We will not revisit that 

issue here.

D. Substantial Evidence Supported the Fee Award

Wertheim observes that the fees in this case were incurred 

in four different lawsuits, plus an arbitration and two appeals, 

each involving both contract and non-contract claims and

numerous parties, most of whom—the third parties named in the 

enforcement actions—were not party to the June 2006 note. It 

argues insufficient evidence supported the fee award because no 

admissible evidence indicated how attorneys fees were actually 

apportioned. We disagree.

To the extent that shared counsel engage in litigation 

activity on behalf of a second party for whom fees are not 
13

recoverable, the court has broad discretion to apportion fees. 

(Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129.) A 

court may apportion fees even where the issues are connected, 

related or intertwined. (El Escorial Owners’ Assn v. DLC 

Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1365.) However, 

the court need not apportion fees where claims are so intertwined 

that separation of time is “impracticable, if not impossible” to 

achieve. (Abdallah v. United Sav. Bank (1996) 43 Cal.App.4th 

1101, 1111.)

Here, all respondents ultimately prevailed on all claims in 

all phases of litigation on the arbitration track. These claims 

were all inextricably bound to one issue: whether arbitration 

should proceed as to one note or 80 notes. Therefore, we conclude 

it was within the trial’s discretion not to apportion fees as to 

respondents, cases, or issues.

Wertheim appears to argue the fee award was unsupported 

by sufficient evidence because some of respondents’ evidence was 

inadmissible. We disagree. The award was supported by 

invoices from nine attorneys who worked on the case, 

declarations from eight of them, and the declaration of Oliver 

Omidvar. That other evidence was inadmissible does not render 

these declarations nugatory.

1

E. Other Arguments

1. Jurisdiction

Wertheim argues the trial court had no jurisdiction to 

award attorney fees incurred in the creditor cases, but supports 

1

Currency’s motion to strike portions of Wertheim’s reply 

brief is denied.
14

the argument with no reasoning or authority. We therefore deem 

it forfeited. (In re S.C. (2006) 138 Cal.App.4th 396, 408.)

2. Timeliness

Wertheim argues that Currency’s fees motion was filed 

more than 180 days after Page dismissed the cross-complaint, 

rendering it untimely as to any fees incurred in defending against 

the cross-complaint. We disagree.

“[T]he ‘outside’ time limit for claiming prejudgment 

statutory attorney fees” is the entry of a final judgment. 

(Carpenter v. Jack in the Box (2007) 151 Cal.App.4th 454, 468.) 

“ ‘Where a complaint and cross-complaint involving the same

parties has been filed, there is no final appealable judgment until 

both have been resolved.’ ” (Westamerica Bank v. MBG 

Industries, Inc. (2007) 158 Cal.App.4th 109, 132.) Here, no final 

judgment existed on the cross-complaint after it was dismissed 

because all parties to it remained parties in the original 

complaint. (Ibid.)

3. Case No. BC530925

Wertheim argues the trial court lacked jurisdiction to 

award attorney fees in this case for work performed in case No. 

BC530925, but admits it is unclear whether fees were actually 

awarded here for work done in BC530925. Under that 

circumstance, we have no basis upon which to conclude the trial 

court erred.

4. The Mayer Brown Law Firm

The trial court awarded Currency $209,123 in fees incurred 

for work performed by the law firm Mayer Brown, which was 

disqualified on June 28, 2013 in one of the enforcement cases, 

case No. BC441026, due to a conflict of interest involving 

representation by one of its former attorneys and a 
15

Wertheim/Pullman affiliate 12 years earlier. Wertheim argues 

the court abused its discretion in awarding fees for work done by 

Mayer Brown. We disagree.

“California law does not establish a bright-line rule barring 

all compensation for services performed subject to an improperly 

waived conflict of interest, no matter the circumstances 

surrounding the violation.” (Sheppard, Mullin, Richter & 

Hampton, LLP v. J-M Mfg. Co. (2018) 6 Cal.5th 59, 89.) Whether 

fees should be awarded is left to “the discretion of the trial court, 

to be exercised in light of all the circumstances that gave rise to 

the conflict. . . . ‘Considerations relevant to the question of 

forfeiture include the gravity and timing of the violation, its 

willfulness, its effect on the value of the lawyer’s work for the 

client, any other threatened or actual harm to the client, and the 

adequacy of other remedies.’ ” (Id. at p. 94.) We presume the 

trial court considered these factors, evaluated the seriousness of 

the conflict of interest, and determined whether fees should be 

precluded. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 

564.) Wertheim offers no argument and adduces no evidence 

concerning the gravity of Mayer Brown’s conflict of interest, its 

effect on the firm’s work for Currency, any threatened or actual 

harm to Wertheim, or the adequacy of other remedies. Under the 

circumstances, therefore, we cannot conclude the trial court 

abused its discretion in awarding fees for Mayer Brown’s work.

5. The Smith Law Firm

The trial court awarded Currency $269,115 for work 

performed by attorney Craig Smith, which reflected his billing 

rate of $375 per hour. Smith declared that although he billed 

respondents at this rate, he collected only $250 per hour during 

the litigation, deferring “the remaining $125 per hour [to be] paid 
16

from the recovery of any attorney fees.” Wertheim argues that 

Currency therefore incurred fees for work performed by Smith at 

a rate of only $250 per hour. We disagree. “ ‘The reasonable 

market value of the attorney’s services is the measure of a 

reasonable hourly rate. [Citations.] This standard applies 

regardless of whether the attorneys claiming fees charge nothing 

for their services, charge at below- market or discounted rates, 

represent the client on a straight contingent fee basis, or are inhouse counsel.’ ” (Chacon v. Litke (2010) 181 Cal.App.4th 1234, 

1260; accord Nemecek & Cole v. Horn (2012) 208 Cal.App.4th 641, 

651.)

6. Attorney Jeremy Osher

The trial court awarded Currency $235,807 for work 

performed by attorney Jeremy Osher, whose initial declaration in 

support of the fees inadvertently omitted the invoices evidencing 

them (although they were served on Wertheim), a deficit later 

corrected. Wertheim argues the amount is unsupported by 

sufficient evidence. We disagree: The amount was supported by 

Osher’s declaration and his timely-served-but-belatedly-filed 

invoices.

7. Attorney Lawrence Ecoff

The trial court awarded Currency $155,961 for work 

performed by attorney Lawrence Ecoff, the invoices for which 

were provided only with the declaration of Oliver Omidvar, who 

stated he was familiar with the invoices of every firm that 

worked for Currency. Wertheim argues this hearsay evidence 

was insufficient to support the award.

 However, Wertheim failed to include Omidvar’s 

declaration in the clerk’s transcript, making meaningful review of 

its claim impossible. (See Cal. Rules of Court, rule 8.204(a)(1)(C) 
17

[a brief on appeal must “[s]upport any reference to a matter in 

the record by a citation to the volume and page number of the 

record where the matter appears”].)

If Omidvar merely received Ecoff’s invoices and approved 

them, his declaration that Ecoff actually performed the work he 

claimed would arguably be inadmissible hearsay. (See 

Copenbarger v. Morris Cerullo World Evangelism, Inc., (2018) 29 

Cal.App.5th 1, 13 [“An invoice itself is hearsay . . . .” “[I]n order 

to be competent evidence under [the business records exception to 

the hearsay rule], it must be supported by the testimony of a 

witness qualified to testify as to its identity and the mode of its 

preparation”].)

However if, as Currency claimed below, Omidvar declared 

that he personally oversaw Ecoff’s work, his declaration 

supporting Ecoff’s invoices would arguably be admissible under 

the business records exception. (See Jazayeri v. Mao (2009) 174 

Cal.App.4th 301, 324 [“any ‘qualified witness’ who is 

knowledgeable about . . . documents may lay the foundation for 

introduction of business records—the witness need not be the 

custodian or the person who created the record”].)

Because the record lacks Omidvar’s declaration, it is 

impossible for us to review whether the trial court abused its 

discretion in impliedly finding that Omidvar’s oversight fell 

under the second scenario rather than the first. (See Grail 

Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, 

Inc. (2014) 225 Cal.App.4th 786, 798 [trial court has wide 

discretion in determining whether proper foundation was laid for 

admission of evidence under the business records exception].) 

“ ‘It is the burden of the party challenging [a] fee award on appeal 

to provide an adequate record to assess error.’ ” (Ketchum v. 
18

Moses (2001) 24 Cal.4th 1122, 1140-1141.) Where a challenging 

party fails to do so, the trial court’s ruling must be upheld. (Id. at 

p. 1142.)

8. Attorney Lawrence Hall

The trial court awarded Currency $49,065 for work 

performed by attorney Lawrence Hall. Wertheim argues $2,850 

of Hall’s fee was for preparation of a motion to withdraw for nonpayment of fees, which cannot be charged to Wertheim.

Wertheim provides no citation to the record supporting the 

argument. Therefore, we deem the claim forfeited.

9. The Fee Award was Not Excessive

Wertheim argues that a $1.2 million fee award in litigation 

over a $6,500 note is excessive as a matter of law. We might 

agree in principle, but this litigation concerned not just one note, 

but Wertheim’s $5 million arbitration claim.

10. The Fees Provision is Not Unconscionable

Wertheim argues that because the June 2006 note was 

unconscionable, no fees may be awarded for litigation regarding 

it. We conclude that under the circumstances here, the fee 

provision itself is not unconscionable as to Wertheim. 
19

DISPOSITION

The order is affirmed. Respondents are to receive their 

costs on appeal. 

NOT TO BE PUBLISHED

CHANEY, J. 

We concur:

BENDIX, Acting P. J.

FEDERMAN, J.*

*

Judge of the San Luis Obispo County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.