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Filed 10/15/21 David Allen etc. v. Gentry CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION FIVE

DAVID ALLEN, A PROFESSIONAL 

LAW CORPORATION, d.b.a. 

DAVID ALLEN & ASSOCIATES,

Plaintiff and Appellant,

v.

KELSA GENTRY et al.,

Defendants and Respondents.

 A160180

 (Solano County Super. Ct.

 No. FCS050830)

Plaintiff and appellant David Allen (“appellant”) appeals from the trial 

court’s grant of summary judgment in favor of defendants and respondents 

Kelsa Gentry (“Gentry”) and the Veen Firm (“Veen”). We affirm.

Gentry was seriously injured in a November 2013 car accident that left 

her confined to a wheelchair. It is undisputed that the driver who caused the 

accident was an attorney employed by Bradford & Barthel, LLP (“Bradford & 

Barthel”) and that he was driving to a court appearance at the time of the 

accident. After the accident, Gentry’s mother retained appellant to represent 

Gentry in seeking compensation for Gentry’s injuries. Gentry’s mother 

signed a “Personal Injury Retainer Agreement” prepared by appellant (the 

“Retainer”). Subsequently, Gentry signed the Retainer.
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Appellant determined that the driver was covered by a $100,000 

insurance policy and that his employer Bradford & Barthel was covered by a 

$5 million policy. Appellant and the attorney retained by the law firm’s 

insurer both believed the insurance company would be willing to settle for the 

$5 million policy limit, but appellant made no such demand on behalf of 

Gentry, and the insurance company never actually made that offer. Gentry 

told appellant that a settlement at the policy limit was unacceptable.

The Retainer contained a provision stating, “I agree this Agreement 

may be terminated by either Attorney or me. In the event of termination I 

realize I will be responsible for the expenses incurred and for the value of the 

services provided. I agree the services will be valued at $275 per hour for 

attorneys, $150 per hour for legal assistants and paralegals and $50 per hour 

for all other persons who work on my case.” Neither Gentry nor her mother 

were told that appellant would seek a different measure of fees if Gentry 

terminated the Retainer.

In May 2014, Gentry terminated the Retainer and retained Veen to 

prosecute her claim. Veen filed suit on behalf of Gentry against the driver 

and Bradford & Barthel in June 2014. In March 2017, the case settled for 

$6.1 million. Appellant’s accounting showed it was entitled to $74,350 if fees 

were calculated under the termination provision of the Retainer. 

Nevertheless, appellant filed an action against Gentry and Veen seeking a 

greater fee award based on an allegation that Bradford & Barthel’s insurer 

“was prepared to tender the [$5,000,000.00] policy” before Gentry terminated 

the Retainer.

Appellant’s January 2018 First Amended Complaint asserted causes of 

action for declaratory relief, quantum meruit recovery, and foreclosure of an 

attorney fees lien. The quantum meruit cause of action stated, “[Appellant] 
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performed and rendered legal services on behalf of [Gentry], and its efforts 

placed [Gentry] in a position to receive tenders of settlement [of] at least 

$5,100,000.00 prior to May 7, 2014. [Gentry] received $900,000.00 in 

additional settlement funds as a result of [Veen’s] legal representation and 

efforts. . . . [Appellant] claims it is entitled to the reasonable value of its 

services, with interest thereon, from and after the date that such settlement 

payments were received by Gentry and/or [Veen]. . . .”

Respondents moved for summary judgment and the trial court found in 

their favor, concluding, “Unlike in a number of the cases cited by plaintiff, the 

parties in the present case clearly expressed their expectation as to payment 

for the reasonable value of the services of [appellant] should [Gentry] 

terminate the contract, as she did. The parties agreed to payment based on 

the time spent multiplied by the hourly rate of every person who worked on 

the case, and no more. [Citation.] Therefore, the court may find, as a matter 

of law, that [appellant] is entitled to this amount only.” In March 2020, the 

court entered judgment in favor of respondents; the judgment also states that 

appellant “is entitled to recover $74,350.00 as a matter of law.”

On appeal, appellant contends the Retainer became “null and void” 

when Gentry terminated the agreement and, therefore, appellant was 

entitled to the reasonable value of its services without reference to the 

Retainer’s termination provision. However, appellant cites no authority that 

termination of the agreement rendered the language in the termination 

provision unenforceable. “To ‘terminate’ a contract . . . means to abrogate so 

much of it as remains unperformed, thereby doing away with the existing 

agreement upon the terms and with the consequences agreed upon.” (Grant 

v. Aerodraulics Co. (1949) 91 Cal.App.2d 68, 75; accord 1 Witkin, Summary of 

Cal. Law (11th ed. 2017) Contracts, § 955, pp. 1007–1008.) In the present 
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case, the parties agreed that “[i]n the event of termination,” respondent 

Gentry “will be responsible for the expenses [i]ncurred and for the value of 

the services provided” at specified hourly rates. That agreement specifying 

the consequences of termination is enforceable. (See W. Camps, Inc. v. 

Riverway Ranch Enterprises (1977) 70 Cal.App.3d 714, 727 [enforcing 

termination provision]; Lunden v. Los Angeles Cty. (1965) 233 Cal.App.2d 

811, 817 [same]; Martter v. Byers (1946) 75 Cal.App.2d 375, 382 [same]; see 

also 13 Corbin on Contracts (rev. ed. 2003) § 67.2, p. 12 [“the rights of the 

parties with respect to performances rendered or a breach committed before 

the [termination] notice became operative depends upon the provisions of the 

‘terminated’ contract”].) Appellant cites no authority to the contrary.

In support of its position, appellant primarily relies upon the decision 

in Fracasse v. Brent (1972) 6 Cal.3d 784. There, the California Supreme 

Court held a discharged attorney was limited to “quantum meruit recovery 

for the reasonable value of his services,” rather than “the full fee specified in 

the contract of employment.” (Id. at p. 786.) Contrary to appellant’s 

suggestion, the Fracasse court did not state that discharge of an attorney 

renders the retainer agreement with that attorney void and unenforceable for 

all purposes. Instead, the court simply reasoned that to allow the attorney to 

collect the full fee would be contrary to “the strong policy, expressed both 

judicially and legislatively, in favor of the client’s absolute right to discharge 

his attorney at any time.” (Ibid.) The court rejected the attorney’s request to 

enforce the retainer’s contingency fee provision to recover more than the 

attorney would be entitled to recover under quantum meruit principles. 

Nothing in Fracasse supports appellant’s attempt in the present case to rely 
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on quantum meruit to obtain greater compensation upon termination of the 

Retainer than it expressly agreed to.

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The Retainer’s termination provision is clear and, even if it were 

ambiguous, the ambiguity would be resolved against appellant, who drafted 

the Retainer. (M’Guinness v. Johnson (2015) 243 Cal.App.4th 602, 617–618.) 

Appellant has not shown the trial court erred in limiting its fees to the 

measure of fees specified in the Retainer’s termination provision.

DISPOSITION

The trial court’s judgment is affirmed. Respondents shall recover their 

costs on appeal.

1 Neither do the additional cases appellant cites support its position on 

appeal. Those cases address void or voidable agreements (Fergus v. Songer

(2007) 150 Cal.App.4th 552, 570; Guthman v. Moss (1984) 150 Cal.App.3d 

501, 507) or discuss quantum meruit recovery without addressing 

circumstances analogous to those in the present case (Joseph E. Di Loreto, 

Inc. v. O’Neill (1991) 1 Cal.App.4th 149, 156–157; Cazares v. Saenz (1989)

208 Cal.App.3d 279, 287–288; Spires v. Am. Bus Lines (1984) 158 

Cal.App.3d 211, 216–17; Lessing v. Gibbons (1935) 6 Cal.App.2d 598, 607).
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SIMONS, J.

We concur. 

JACKSON, P. J.

NEEDHAM, J. 

(A160180)