Filed 10/2/13 Halimi v. Grant CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

GEORGE M. HALIMI, Plaintiff, Cross-defendant and Appellant,

v.

DENNIS GRANT, Defendant, Cross-complainant and Appellant. B240730
(Los Angeles County Super. Ct. No. BC453298)

APPEAL from a judgment of the Superi or Court of Los Angeles County, Susan Bryant-Deason and Victor E. Chavez, Judges. Affirmed.

George M. Halimi, in pro. per., for Plaintiff, Cross-defe ndant and Appellant.

Kerendian & Associates, Shab D. Kerendi an, Shawn S. Kerendian, Erika P. Licon, Verlan Y. Kwan and Julie R. Woods for Defendant, Cross- complainant and Appellant.

* * * * * * * * *2 Plaintiff, cross-defendant and appella nt George Halimi is a lawyer who represented defendant, cross-complainant and appellant Dennis Grant in regard to his rights as a beneficiary of the trust of his la te mother. After the trust action was settled, Halimi sued Grant for unpaid legal fees. Grant filed a cross-co mplaint against Halimi pleading professional malpractic e and other causes of action. The trial court sustained the demurrer to Halimi’s first amended compla int without leave to amend as to the first through fourth causes of action but permitte d the filing of a second amended complaint for quantum meruit. At the beginning of trial, Halimi voluntar ily dismissed this complaint, and a three-day court trial ensued on the cross-complain t. The trial court awarded Grant $200,000 on th e cross-complaint. Halimi a nd Grant each appeal from the judgment. We affirm. BACKGROUND 1. The Trust Action Pursuant to the 2005 amendment to her tr ust, Grant’s mother designated Grant as the sole beneficiary. In 2006, Linda Gold man-Ofer (Ofer), Grant’s sister, induced their elderly and mentally incompet ent mother to amend the trus t to designate both Grant and Ofer as beneficiaries, in equal shares as to the personal trust assets. Grant retained Halimi to represent him in a challenge to th e 2006 amendment. Halimi filed a petition to invalidate that amendment mo re than 120 days after Of er had given a trustee’s notification. The probate court sustained Of er’s demurrer to the petition on the ground it was not timely and granted l eave to amend. The amende d petition merely alleged the challenge to the 2006 trust amendment had been filed within the requisite 120 days, which was incorrect. Ofer moved for summary judgment on the ground the petition was untimely. The motion was scheduled to be heard about a month after mediation. During mediation, Grant and Ofer entered into a settlement agreement whereby Ofer would receive a total of $531,365.88 of the trust’s personal assets and Grant woul d receive only $653,483.69, or 60 percent of the personal assets in the trust at the time of settlement,3 instead of 100 percent of all trust personal assets if the 2006 trust amendment had been declared void. The probate court approv ed the settlement. 2. This Action In the current case, Halimi filed a first amended complaint for breach of contract, conversion, constructive trust and common co unt. The trial court (J. Susan BryantDeason) sustained Grant’s demurrer to this pleading without leave to amend but allowed Halimi to file a second amended complaint with a single cause of action for quantum meruit. Halimi filed a second amended compla int for quantum meruit but dismissed this complaint on the first day of trial. The case went to trial only on Grant’s operative cross-comp laint. Following trial, the court (J. Victor Chavez) entered judgme nt for Grant on his professional negligence claim. The trial court found Halimi could ha ve alleged facts to establish tolling of the statute of limitations to challenge the trust. Ofer had not only us ed undue influence to persuade their mother to change the tr ust terms when she wa s not competent to understand what she was doing, but she had also fraudulently misrepre sented to Grant the terms of the amended trust. Yet, at no time had Halimi sought leave to amend the petition to allege Ofer’s fraudulent misrepresent ations that had misled Grant concerning the terms of the trust. Worse, Halimi advi sed Grant he would likely lose the summary judgment motion and should se ttle the trust dispute as favor ably as possible before the court ruled on the motion. The court found if Halimi had alleged financial elder abuse and tolling of the statute of limitations due to Ofer’s fraud, the trust action would have settled more favorably to Grant. The cour t awarded Grant $200,0 00 as damages. On appeal, Halimi contends the trial court erred in sustaining the demurrer and dismissing the four causes of action pleaded in the first amended co mplaint. He also asserts eight errors arising from the trial on Grant’s cross-complaint. In his appeal, Grant challenges the award of $200,000 on his cross-complaint and contends the award instead should have be en $531,365.88, which is the amount Ofer
received in the trust settlement. For the reasons explained belo w, we affirm the judgment.4 DISCUSSION 1. Grant’s Appeal In the interest of brevity, we discuss fi rst Grant’s appeal of the judgment in his favor on his cross-complaint. His opening br ief devotes only three pages to the argument that the court erred by awarding damages of $200,000 and not $531,365.88 on the professional negligence cause of action. Gr ant frames his argument as a pure question of law and presents no substantial evidence challenge. Grant asserts the purely legal question presented in his appeal is whet her the trial court awarded damages in conformance with Civil Code section 3333, wh ich provides the measure of tort damages is “the amount which will comp ensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.” Grant is mistaken that hi s challenge to the damages aw arded presents a question of law. His contention that the court was requi red to award $531,365.88 in damages hinges
on the factual issues whether substantial evid ence supports the tr ial court’s $200,000 award, and whether the court arbitrarily a nd capriciously ignored substantial evidence supporting a $531,365.88 award. Yet, Grant makes no effort to summarize the damages evidence at trial. Rather, for the most part, he simply cites to portions of the reporter’s transcript regarding his counsel’s closing arguments to the trial court. The only citations to evidence are referen ces to three exhibits: a documen t amending the trust in 2006, a letter from defense counsel to Halimi, and the settlement ag reement in the probate court action. An appellant forfeits his or her claims of error by failing to state all of the evidence fairly in his or her brief. ( Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; County of Solano v. Vall ejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274.) We therefore find Grant has forfe ited the right to appellate review of his inadequate damages claim by failing to provide in his brief relevant record references to the evidence pertaining to his claim.5 2. Halimi’s Appeal 1 a. Sustaining of demurrer and dismi ssal of four causes of action Halimi contends the trial court erred in sustaining Grant’s de murrer to the first amended complaint without leav e to amend because, contrary to Grant’s demurrer, their contingency fee agreement fully complied with section 6147, subdivision (a)(3) of the Business and Professions Code. We disagree. “ ‘When a demurrer is sustained, we dete rmine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial c ourt has abused its disc retion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citati ons.] The burden of proving such reasonable possibility is square ly on the plaintiff.’ [Citations.]” ( Zelig v. County of Los Angeles (2002) 27 Cal.4t h 1112, 1126.) The first amended complaint alleged Halimi and Grant entered into a written retainer agreement, a copy of which was attached, where by Halimi agreed to provide Grant legal services in the trust action, including the filing of a petition to vacate and declare void the 2006 trust amendment based on Ofer’s alleged fraud. In return, Grant agreed to pay Halimi 33 percent of the sum Grant recovered. Halimi alleged he assisted Grant in reaching a settlement in the trust acti on but that, except for payment to Halimi of $59,138.37, Grant refused to pay th e additional contingent fee due. A retainer agreement with a contingenc y fee provision generally must comply with the mandates of section 6147 of the Bu siness and Professions Code. In relevant part, the contingency fee contract must be in writing, signed by bo th the attorney and client, and “shall include, but is not limited to , all of the following: [¶] . . . [¶] (2) A statement as to how disbursements and costs incurred in connection with the prosecution or settlement of the claim will af fect the contingency fee and the client’s

1 We deny Halimi’s requests for judicial notice made in footnotes in his opening brief rather than through a proper separate noticed moti on for judicial notice with a proposed order. (Cal. Rules of C ourt, rule 8.252(a)(1).)6 recovery. [¶] (3) A statement as to what extent, if any, th e client could be required to pay any compensation to the attorney for related matters that arise out of their relationship not covered by their continge ncy fee contract. This may include any amounts collected for the [client] by the attorney. [¶] . . . [¶] (b ) Failure to comply with any provision of this section renders the agreement voidable at the option of the [client], and the attorney sha ll thereupon be entitled to collect a reasonable fee.” (§ 6147, subds. (a)(2), (3) & (b).) The contingency fee contract between Ha limi and Grant provides: “Attorney[] fee[s] shall be contingent up on vacating and declaring void the [2006 Trust Amendment], and all contested matters, in cluding recovery of settlement , arbitration award, court judgment, and/or punitive damages (hereinafter referred to as ‘Recovery’). . . . Bearing in mind that the contingency fee is negotiabl e, [Grant] agrees that the following fee arrangement is fair and reasonable, and to pay [Halimi] the fo llowing amount: Thirty three percent (33%) of the total interest of [Grant] from the benefit received by [Grant] from litigating the Declaration of Trus t and any amendment thereof.” Thus, Halimi’s right to collect a fee wa s “contingent upon va cating and declaring void the [2006 trust amendment], and all c ontested matters,” which never happened. Additionally, the contingency fe e contract did not comply w ith Business and Professions Code section 6147, because the contract di d not contain “[a] statement as to how disbursements and costs incurred in connection with the prosecution or settlement of the claim will affect the contingency fee and the client’s recovery” and “[a] statement as to what extent, if any, the client could be requ ired to pay any compen sation to the attorney for related matters that arise out of their re lationship not covered by their contingency fee contract,” specifically the settlement of Gran t’s claim against Ofer without the vacating and voiding of the 2006 agreement. In view of the above deficiencies, this contingency fee contract was voidable at the option of Grant. Grant stated in his demu rrer that he “has voided the contingency fee agreement between [Halimi] a nd himself.” Halimi conceded that fact in his second amended complaint: “Subsequ ent to signing of the Settle ment Agreement by [Grant,7 Grant] has declared void the [contingency fe e]” contract. The trial court properly sustained the demurrer to the first amended co mplaint without leave to amend because all of the causes of action were based on th e void contingency fee contract. b. Judgment in favor of Grant on his cross-compla int against Halimi Halimi asserts eight errors were made at trial. Akin to Grant’s appeal, Halimi contends in his opening brief that his appeal presents pure questions of law and that “there are no disputed facts.” However, ma ny of Halimi’s claims of error concern the court’s findings of fact as set forth in the statement of decision. For example, in his “error # 2” claim, he asserts the court erred in finding Halimi damage d Grant in the trust action by failing to assert the tolling of the statute of limitations, with the consequence Grant felt pressured to settle, because Ofe r’s pending summary judgment motion based on the statute of limitations gave Ofer settleme nt leverage against Grant. In his “error # 3” claim, Halimi asserts the court erred in finding he was neglig ent by failing to plead elder abuse, because the probate court entered an order that “deferred” such pleading and proof of elder abuse. In his “error #4” cl aim, Halimi asserts the court also erred in finding he was negligent by fa iling to plead elder abuse in the trust action, because the substance and effect of the petition he filed on behalf of Grant essentially constituted an elder abuse claim. In his “error #5,” “e rror #6,” and “error # 7” claims, Halimi challenges the court’s findings of fact concerni ng the damages Grant sustained as a result of Halimi’s negligence. Manifestly, each of these claimed errors co ncerns the adequacy of the evidence and may not be resolved as pure questions of law. Moreover, Halimi presents his view of the evidence with few citations to the record and no attempt to provide a full and fa ir summary of the evid ence. In assessing whether substantial evidence supports a judgm ent, the appellate court views all factual matters in the light most favorable to the prevailing party, resolv ing all conflicts and indulging all reasonable inferences from th e evidence to sup port the judgment. ( Western States Petroleum Assn. v

. Superior Court (1995) 9 Cal.4th 559, 571.) An appellant may not include only favorable evid ence in his or her brief rather than all “significant facts.” ( In re S.C. (2006) 138 Cal.App. 4th 396, 402.) An appellant forfeits8 any claim of error by failing to state all of the evidence fairly in his brief. ( Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881; County of Solano v. Vallejo Redevelopment Agency , supra , 75 Cal.App.4th at p. 1274.) We find therefore Halimi has forfeited the right to appellate review of th e adequacy of the evid ence to support the factual findings of the trial court by his failure adequately to set forth in his appellate brief the evidence pertaining to the claims of error. Halimi also asserts two claims of error in which he contends, in effect, the court abused its discretion, i.e., by allowing Gran t to call an expert witness who was not disclosed until trial and by “adopting a de fective statement of decision.” Halimi contends the trial court erred in allowing Grant to ca ll Frederick Seymour, over objection, to testify as an expert witne ss at trial. Grant had not named Mr. Seymour as a witness during their meet and confer confer ence or in the joint w itness list. After the filing of the joint witness list and shortly before trial, Gran t retained Mr. Seymour. Grant advised Halimi of the retention soon afte rward but Halimi did not ask to take Mr. Seymour’s deposition. No party had serv ed a demand for the exchange of expert witness information pursuant to the provi sions of the Code of Civil Procedure. Halimi told the trial court he had “an i ssue with the expert” because he had not been disclosed as a witness on the joint witness list. He did not, however, move to exclude the testimony of Mr. Seymour. None theless, the trial c ourt discussed with counsel at some length the potential prejudice to Halimi of permitting Grant to call the expert to testify. The court reasoned that although Halimi had not requested an exchange of expert designations, he was entitled to know who Grant’s experts wo uld be so he could obtain further discovery. The trial cour t asked Halimi if he was requesting an opportunity to take the deposition of Mr. Se ymour and Halimi replied, “If it’s possible, Your Honor, yes.” The court offered to delay trial to permit Halimi to take the deposition the next afternoon, but Halimi responded th at it was too late to arrange for a court reporter and to prepare for the deposition. De spite the court’s urging , Halimi declined the offer.9 We are not persuaded the trial court abused its discretion. In a footnote in his opening brief, Halimi asserted fo r the first time that he was prejudiced because he had not retained his own trust expert in reliance on Gr ant not disclosing his intent to call a trust expert witness. This claim is not cognizable on this appeal because Halimi never raised this claim of prejudice in the trial court. ( Kennemur v. State of California (1982) 133 Cal.App.3d 907, 925 [argument never made to the trial court cannot be asserted on appeal].) Halimi also contends the trial court erre d in adopting Grant’s proposed statement of decision, because that statement fails to explain how an allegation of financial elder abuse in the trust action would have ma de any difference and how damages were calculated. Halimi has forfeited his claims of error by failing to bring these matters to the attention of the trial court. “[I]f the trial court issues a statement of decision, ‘a party claiming omissions or ambiguities in the factual findings must bri ng the omissions or ambiguities to the trial court’s attention’ pursuant to section 634 [of the Code of Civil Procedure].” ( Ermoian v. Desert Hosp. (2007) 152 Cal.App.4th 475, 494.) “To bring defects in a statement of decision to the trial court’s attention . . . , objections to a statement of decision must be ‘specific.’ [Citation.] The alleged omissi on or ambiguity must be identified with sufficient particularity to allow the trial court to correct the defect. [Citation.] ‘By filing specific objections to the court’s statemen t of decision a party pinpoints alleged deficiencies in the statement a nd allows the court to focus on the facts or issues the party contends were not resolved or whose re solution is ambiguous.’ [Citation.]” ( Id. at p. 498.) After Grant submitted a proposed statem ent of decision, Halimi filed a written objection. Although he objected to five find ings made by the trial court, he did not identify or describe in what particulars the proposed statement was defective nor describe or otherwise identify any specific issues he wa nted addressed in that statement. Instead, Halimi merely objected to “the entire” pro posed statement and stated: “The issues objected [ sic ] by Halimi [are] spread throughout the Proposed Statement of Decision[.]10 As such, it is impossible to pinpoint each issue by page number and line number. The essential objections by Halimi are based on th e [five enumerated] findings of [the trial court] at trial.” Similarly, Halimi challenged the statement of decision in his notice of intention to move to set aside and vacate th e judgment, which had no t yet been entered, and for entry of another and different judgme nt, but he failed to support his claims of error with specific references to the particular parts of the statement of decision that were subject to his challenges. We find Halim i has forfeited any claim of error he had regarding the statement of decision. DISPOSITION The judgment is affirmed. Each party shall bear its own costs on appeal.

GRIMES, J.

We concur:

BIGELOW, P. J.

FLIER, J.