Filed 9/2/15 Philips v. Smurr o CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

WAYNE PHILIPS,
Plaintiff and Respondent,

v. THOMAS E. SMURRO,
Defendant and Appellant. G049791
(Super. Ct. No. 30

- 2012

- 00558438)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Andrew P. Banks, Judge. Affirmed.

Thomas E. Smurro, in pro. per., for Defendant and Appellant. Wayne Philips, in pro. per. , for Plaintiff and Respondent.

* * *2 This case concerns a dispute over attorney fees. Plaintiff Wayne Philips
sued d efendant Thomas E. Smurro to recover his fee for representing defendant in a pri or lawsuit. T he trial court awarded plaintiff over $58,000 in damages, prejudgment interest,
and costs. Defendant contends the award is excessive because it included fees interpleaded by the opposing party in the prior action , plus prejudgment interest o n th os e funds. We conclude his arguments lack merit and affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

Defendant, an attorney, retained plaintiff to represent him in a lawsuit against Cantamar Community Association (Cantamar), defendant’s homeo wners association

. The retainer agreement provided plaintiff would be entitled to “ninety

- five percent (95%) ” of any court

- ordered attorney fee award, plus costs , and granted plaintiff “a lien on

. . . all claims

. ”

Defendant prevailed at trial in the Cantamar action and the court awarded him a gross attorney fee award of $49,000. However, the court reduced the amount
Cantamar owed to defendant by $12,800, citing Cantamar’s success in striking defendant’s cross

- complaint. Can tamar was directed to deposit the balance , i.e., $36,200
, with the court and it eventually did so.

Plaintiff requested defendant pay him 95 percent of the $49,000 gross attorney fee award, plus unreimbursed costs. Defendant failed to do so

. After def endant
also failed to respond to a proposal for arbitration of the fee dispute, plaintiff filed this
action

. While the case was pend ing , plaintiff sought release of the $36,200 deposited by
Cantamar . Defendant opposed the motion and the court denied plai ntiff’s request.

After a four

- day trial, the court ruled in plaintiff’s favor . It also authorized
the release of Cantamar’s $36,200 deposit to plaintiff

. D efendant then agreed to stipulate
to the release of the se funds and also sent plaintiff a check for $11,072.88 with a letter3

authoriz ing him “to negotiate” i t “immediately.” After t he trial court denied defendant’s
motion for a new trial , he sent plaintiff a second check for $9,504.17 with authoriz ation “to negotiate [it] immediately.” The court ’s final judgment award ed plaintiff $58,210.88, consisting of $47,272.88 in attorney fees, $9,583.51 in prejudgment interest, and $1,354.49 in costs.

DISCUSSION

1. Defendant’s Waiver of the Right to Appeal

As noted, before filing th is appeal defendant stipulated to disbursement of the $36,200 Cantamar deposited in the prior action and sent plaintiff two checks totaling $20,577.05 . The first check approximate d the difference between 95 percent of the gross attorney fee awarded in the C antamar action and the amount of Cantamar’s deposit. The second check totaled all but $80 of the prejudgment interest contained in the amended judgment. Nothing in the record suggests defendant made these payments under a threat
of execution or other coe rcion. At our request, the parties briefed the question of whether defendant’s actions constituted a waiver of his right to appeal from the judgment . We now conclude the answer to this question is no.

While cases hold “a party who voluntarily complies with the terms of a judgment impliedly waives the right to appeal” ( A.L.L. Roofing & Bldg. Materials Corp. v. Community Bank (1986) 182 Cal.App.3d 356, 359) , the “ deprivation of the right to appeal ensues only when it is shown that the payment of the judgment was by way of compromise or with an agreement not to take or prosecute an appeal.” ( Estate of Merrill (1946) 29 Cal.2d 520, 524; Miller v. Cabral (1970 ) 13 Cal.App.3d 503, 506.) Here, t he record does not contain any indication defendant made the foregoing payments “ by way of compromise or pursuant to an agreem ent not to prosecute an appeal.” ( Reitano v.
Yankwich (1951) 38 Cal.2d 1, 4.) Apparently, he made the foregoing payments to avoid4

incurring additional interes t on the judgment. The record also does not indicate defendant paid or offered to pay the outstanding court costs in this action

.

Plaintiff’s reliance on our decision in Satchmed Plaza Owners Assn. v. UWMC Hospital Corp. (2008) 167 Cal.App.4th 1034 is u navailing . T hat case concerned an attempted appeal by a party that had accepted the benefits of the trial court’s judgment

. In this case, defendant was not benefited by the judgment. Under the circumstances, we conclude h e can maintain this appeal.

2

. The Validity of the Judgment

Nonetheless, on the merits, the appeal is fruitless. In line with the general principles governing appellate review, “‘ [i] t is the burden of the party challenging the fee award on appeal to provide an adequate record to assess error ’” ( Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140

- 1141), and “‘“[a] ll intendments and presumptions are indulged to support [the judgment] on matters as to which the record is silent ”’” ( id. at
p. 1140). Defendant’s appendix consist s of only th e pleadings, new trial motion, some exhibits, and the judgment . Thus , i t i s the equivalent of a judgment roll. ( Kopf v. Milam (1963) 60 Cal.2d 600, 601; Williams v. Inglewood Board of Realtors, Inc. (1963) 219 Cal.App.2d 479, 482.) In an appeal b ased on the judgment roll, we “‘ conclusively presume that the evidence is ample to sustain the findings ’” ( National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 522), and “ are confined to a determination whether the complaint states a cause o f action, whether the findings are within the issues, and whether the judgment is supported by the findings ” ( Ducray v. Ducray (1967) 257 Cal.App.2d 480, 483).

Defendant does not challenge the sufficiency of the pleadings . P laintiff alleged in his comp laint that he was entitled to recover a fee constituting 95 percent of the gross fee awarded to defendant in the Cantamar action, and the judgment awarded that relief. Defendant did not request a statement of decision and thus we “ presume [] the trial5

cour t made all necessary findings supported by substantial evidence.” ( Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 970.)

Rather, defendant argues the judgment is legally erroneous because plaintiff’s attorney’s “lien gave him c onstructive possession of the $36,200 ” and thus he
should have been awarded only the difference between the amount of the deposit and 95 percent of the original $49,000 fee award rendered in the Cantamar action. For the same reason, defendant claims the award of prejudgment interest is also excessive.

P laintiff concededly had an enforceable attorney’s lien

. ( Cetenko v. United California Bank (1982) 30 Cal.3d 528, 531

. ) But he was not a p arty to the Cantamar

a ction and needed to file an “independent action .

. . to establish the amount of the lien and to enforce it” ( Hansen v. Jacobsen (1986) 186 Cal.App.3d 350, 356). In this action, defendant disagreed with p laintiff ’s request for a recovery based on the gros s attorney fee awarded in the Cantamar action, arguing plaintiff was only entitled to 95 percent of the
net fee award , i.e., $36,200 . Because of this dispute, the court rejected plaintiff’s pretrial
motion that it release the funds deposit ed by Cantamar

. Thus, defendant’s assertion plaintiff “always had a right to collect the $36,200 held by the court” lacks merit and the trial court properly included that amount in the judgment awarded to plaintiff.

Defendant’s reliance on Hunt v. Hackett (1973) 36 Ca l.App.3d 134 for the proposition that a court cannot enter “a judgment for more than the unpaid balance owed to the judgment creditor after applying any amounts that had already been paid” is unavailing. There plaintiffs su ing several parties alleg ed to b e jointly liable for their loss , settled with some of the defendants , receiving payment of a portion of the damages. The

court subsequently entered judgment for the entire amount sought by plaintiffs without
deductin g the sum previously paid to them.

F or the same reasons, the trial court did not err in award ing prejudgment interest on the $36,200 deposit. The retainer agreement entitled plaintiff to receive 95 percent of any court

- ordered attorney fee awarded to defendant in the Cantamar action.6

In th e Cantamar action t he court awarded defendant a gross fee of $49,000. The amount of plaintiff’s fee , 95 percent of the $49,000 award, was readily calculable

. (Civ. Code, § 3287, subd. (a)) D efendant’s failure to pay it upon demand entitled plaintiff to receive prejudgment interest on the entire judgment , including the amount Cantamar deposited
with the court. Further, s ince the issue here is plaintiff’s entitlement to prejudgment
interest in the current lawsuit rather than the Cantamar litigation, defendant’s reliance on
Code of Civil Procedure section 685.030 and cases involving a party that deposited funds in favor of another party to the same action is misplaced

.

We conclude the trial c ourt’s judgment properly included the $36,200 deposited by Cantamar and prejudgment interest on that amount.

DISPOSITION

The judgment is affirmed. Respondent shall recover his costs on appeal.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

ARONSON, J.

IKOLA, J.