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In Re the Marriage of Valentia and Robert Piccinini. v. Robert Piccinini


December 23, 2010


Monterey County Super. Ct. No. DR39309

The opinion of the court was delivered by: Elia, J.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 this appeal, Suzie Thorn and her law firm, Schapiro-Thorn, Inc., seek review of a family court order denying their request for attorney fees pursuant to In re Marriage of Borson (1974) 37 Cal.App.3d 632 (Borson). Appellants contend that their motion should have been granted because their former client, Valentia Piccinini (Valentia), impliedly authorized the fee request. We find no error and will therefore affirm the order.


Appellants represented Valentia in September 2002 when she filed a petition for legal separation from respondent Robert Piccinini (Robert). Robert was the principal owner of SaveMart grocery stores, and the parties had enjoyed a "very high" standard of living. In November 2002 Valentia requested pendente lite family support and an advance for professional costs and attorney fees. In that request she sought $250,000 for attorney fees and $50,000 for professional costs. The resulting order granted $75,000 for both fees and costs.

Three more fee requests were made over the next two years. In January 2003 Valentia requested $250,000 for attorney fees and another $50,000 for costs; she received $35,000. In its minute order the court "reiterate[d] its concern regarding possible escalation of fees in this case. Any further request of fees by Petitioner should be fully documented and itemized by the professional or attorney."

In May 2003 Valentia asked for $240,000 to cover a balance due of $137,500 and $90,000 for work through the end of July. The assigned referee, the Honorable Richard M. Silver (ret.), recommended, and the court allowed, $150,000 as an advance. The court then granted an additional $115,000 and emphasized that all of the amounts approved were "subject to later accounting and allocation at the time of trial." The court again cautioned Valentia and her attorneys that "Respondent's economic situation does not give license to a 'bottomless pit' advancement of fees."

In December 2004 Judge Silver considered Valentia's latest request, which was for $286,201, plus $1 million to be drawn on as needed and as ordered by the referee. Respondent stipulated that he had "substantial income and assets sufficient to pay any amount ordered." He objected, however, to the reasonableness of the requested amount. The referee shared the court's concern about the amount billed. Although he acknowledged Thorn's skill and the nature of the Piccininis' dispute, Judge Silver observed that every second had been billed, and the billing rate was "very high, especially when considering the 'combined' rate of everyone working on the file simultaneously." Consequently, the referee recommended that $150,000 of the previously ordered amount be allocated to Robert's separate property, with the remaining $75,000 to be designated as an advance against Valentia's share of community property. He further recommended payment of an additional $25,000 from Robert's separate property, $200,000 as an advance against Valentia's share of community property, and denial of the request for a $1 million "litigation fund."

In a tentative decision on August 31, 2005, the court declined to adopt the referee's recommendation regarding allocation of fees until it could see a "clearer picture of the parties' post-dissolution assets" and a determination regarding how the community property, if there was any, would be distributed.*fn1 The court then ordered Robert to pay an additional $150,000 as an advance, subject to allocation and without prejudice to either party.

On March 30, 2006, Valentia, through appellants, filed another request for an advance of fees and costs-- this time $236,704 through December 31-- and a $1 million litigation fund, to be established by Robert and distributed by the referee to Valentia as needed. The appellate record does not disclose the outcome of that motion. A subsequent order, filed in April of 2009, expressed the court's opinion that Valentia's attorneys had "devoted an inordinate amount of time to the issues presented thus far, resulting in fee and cost claims [that] are disproportionate to . . . those issues."*fn2 Robert was ordered to pay $240,520 for Valentia's fees and costs covering the period between October 1, 2006 through December 31, 2007, and to advance $400,000 against community property. Addressing an additional request for $418,464.25 for the period between January 1, 2007 and October 31, 2008, the court ordered Robert to pay $251,078 of the requested amount.

On June 8, 2009 appellants received an e-mail from Valentia terminating their services. Valentia informed appellants that they were not authorized to perform any more work on her behalf and that she was looking for new counsel. A copy of this e-mail was sent to the referee. In accordance with the notification, appellants stopped preparing for trial, which was scheduled to begin on July 7. On June 9, appellants wrote to Valentia to outline the tasks that needed to be performed before trial. On June 12, Valentia sent appellants another e-mail in which she declared again that appellants' services were terminated and that they were "to do no further work on her behalf."*fn3

The following Monday, June 15, 2009, appellants received a "substitution of attorney" form signed by Valentia, indicating that she intended to represent herself. A copy was sent to the referee, to Robert, and to the trial court. The next day appellants filed a motion pursuant to Borson, supra, 37 Cal.App.3d 632. In the accompanying declaration Brent D. Seymour, one of the attorneys at the Schapiro-Thorn firm, stated that the substitution form had been signed and would be sent back to Valentia the following morning. Appellants asked the court to retain jurisdiction over outstanding fees and costs.*fn4

Mr. Seymour signed the substitution form on June 17, 2009, and Valentia signed it on June 18; but the form was not filed until June 26, 2009. On July 15, 2009, Valentia filed a declaration stating that the Borson motion had been made without her approval, and she had not changed her position since then.

At the court's request, Judge Silver, the referee, submitted a recommended disposition on the Borson motion. He recommended denial of the motion because it had been brought without Valentia's consent, either express or implied. He also noted that any new fee order would be paid by Valentia, not Robert, contrary to the "general notion of a 'Borson' motion that fees are to be paid by the other spouse." Thus, Judge Silver observed, there existed a direct conflict between Valentia and appellants.*fn5 Appellants filed objections to the referee's recommended disposition, disputing the legal reasoning and factual basis for his conclusions.

The Borson motion was not heard until November 12, 2009. Appellants argued that although they did not have express authority to file the motion, they did have implied authority, based on "the past history of seeking fees on behalf of the client from the opposing party, from the client's petition wherein she stated that she was seeking fees, from various declarations that the client has filed throughout the course of this case in which she said she did not have sufficient funds to pay her own fees and costs. [¶] We've filed many of these motions . . . for fees throughout this case. There was no reason to expect anything would be different this time."

Appellants also pointed out that Valentia had not indicated that she did not consent to the motion until July 15, when she submitted her declaration. July 15 was too late for her to withdraw her consent, however, because the attorney-client relationship had already been dissolved by that time--that is, on June 26, when the substitution of attorney was filed. Relying on Borson, appellants argued that "any withdrawal of consent after the attorney-client relationship has been completely terminated is legally ineffective because there is no longer that relationship and the incidence of that relationship and authority can no longer be changed by either party." Mr. Seymour admitted that he had delayed signing the substitution of attorney so that the Borson motion could be filed. Valentia nevertheless could still have withdrawn her consent until the substitution was filed. Once that event occurred, "any withdrawal of consent was legally ineffective."

Appellants also relied on the Borson decision to argue that after being told to discontinue work on a client's case, an attorney has two tasks to do in order to "wrap up the attorney-client relationship": to file the substitution of attorney and to file any motion for attorney fees. Moving for attorney fees, in appellants' view, constituted a "continuing duty to protect the client's interests until the substitution of attorney is filed." Appellants thus "were just complying with [their] obligations."

The superior court denied the Borson motion, though it did find that Robert had failed to comply with the April 20, 2009 order and set the matter for a contempt hearing. Appellants brought this timely appeal from the November 12, 2009 order.


As both Robert and appellants recognize, an attorney's Borson motion for fees may be granted if the attorney is still counsel of record and has the client's express or implied consent. Both parties also observe that a family court order granting or denying attorney fees is reviewed for abuse of discretion. (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 769; In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 829.) In this case, however, the central issue is whether the court had the authority to grant the requested fees in the first place, which turns on whether the request itself was authorized by Valentia. An examination of Borson, on which appellants rest their position, dictates the answer.

In Borson, supra, 37 Cal.App.3d 632 the wife became upset with her attorneys during discovery, and either she discharged them or they quit. A few weeks later, without obtaining any express authority from the wife, the attorneys moved on her behalf for attorney fees payable by husband to them for services performed before the termination. At the same time they moved for permission to withdraw from the case as the wife's attorneys. The court allowed the attorneys to withdraw, substituting the wife in propria persona, and deferred the fee issue. Subsequently the wife obtained new counsel, who negotiated a settlement. Considering the question of jurisdiction to award fees to the prior attorneys, the appellate court held that the attorney-client relationship terminated upon their discharge, "for all purposes except the winding-up of the relationship. Such winding-up in this case involved the doing of two things -- (1) the making of the motion on her behalf that appellant pay additional fees and costs to her attorneys, and (2) the formal change in Sophia's representation in the proceeding. In the interval between the discharge and the substitution of representation, Sophia's attorneys, as her attorneys of record, alone could appear in court for her and continued as her only attorneys in the proceeding." (Id. at p. 637.)

In so holding, the court distinguished the Supreme Court's opinion in Meadow v. Superior Court (1963) 59 Cal.2d 610. In that case the husband and wife orally agreed on settlement terms, including attorney fees, but the wife's attorneys advised her to reject the agreement and refused to sign it. The wife then obtained new attorneys who signed the agreement, but the first attorneys refused to consent to a substitution of attorneys. They moved for additional attorney fees (consistent with a prior order), followed the next day by new counsel's motion for substitution. The day after that, the husband and wife reconciled and directed their attorneys to dismiss the dissolution action.

Granting the husband and wife's joint petition for mandamus, the court in Meadow explained that, although fees may be granted directly to a wife's attorney, " ' "they are granted to the wife for her benefit and are not awarded to her attorney. . . A wife's attorney has no separate equity in counsel fees awarded to her. [The attorney's] right thereto is derived from his client." ' " (Id. at pp. 615-616.)

The Borson court noted that Sophia, in contrast to the wife in Meadow, "had . . . no disagreement with her attorneys over her former husband paying these additional fees and costs" and in fact had attested to her need for those fees in her declaration. (Borson, supra, 37 Cal.App.3d at pp. 637-638.) Consequently, the appellate court found that the wife's attorneys had "reasonably believed that, notwithstanding their discharge, they, as her attorneys of record, had implied authority from her to file for her this motion for additional fees and costs." (Id. at p. 638.)

Appellants maintain that this case is similar to Borson. It is not. Valentia twice -- on June 8 and June 12 -- made it abundantly clear that appellants were to do no more work on her behalf. Appellants stopped preparing for trial, but they deliberately held on to the substitution of attorney form until after they filed the motion for fees. In her July 15 declaration Valentia affirmed that she had never consented to the filing of this motion.

Appellants cannot convert this express lack of authority into an implied authority merely by pointing to Valentia's past cooperation with the fee requests. Thus, unlike Borson, any belief that appellants had implied authority to move for attorney fees was not reasonable. (See Borson, supra, 37 Cal.App.3d at p. 638.) And the fact that the substitution of attorney had not been completed is of no consequence; there is no question that this ostensible "winding-up" was strategically delayed by appellants, but it was an ineffective measure, because the critical fact is the lack of consent, not the technical status of appellants as attorneys of record. As the Supreme Court emphasized in Meadow, " 'it is only the party who has the right to apply for an award of attorney's fees . . . and section 137.3 and 137.5 [of the Civil Code] [predecessors of the current Family Code provisions] do not give the attorney for a party, either before or after any discharge of his services by his client, the right to make a motion in [the attorney's] own behalf for an award of such fees . . . .' " (59 Cal.2d at p. 616.) Appellants had no right to undertake an act deemed to be on Valentia's behalf without her consent.

Like the trial court, we believe the case before us is more analogous to In re Marriage of Read (2002) 97 Cal.App.4th 476. Like Valentia, the wife in Read discharged her attorneys and directed them to stop performing work on her behalf. The next day she faxed a substitution of attorney form to them and to the commissioner, who may or may not have received it. In the faxed transmission the wife not only indicated that she would be representing herself, but explained that she was withdrawing a Borson motion that had previously been filed.

The requested fees were granted, and the next day, the attorneys filed the substitution form. The wife reminded the attorneys that she had discharged them and that they were not to act further on her behalf. The attorneys acknowledged that instruction, but the next day they sent the commissioner a proposed fee order they had prepared, in which they represented themselves as the wife's counsel. Both husband and wife jointly objected to the proposed order, but the commissioner signed it, awarding fees under Family Code section 2030.

The appellate court reversed. The court observed that unlike Borson, there was no basis on which to conclude that the wife's former attorneys had a reasonable belief that they had implied authority to pursue fees on the wife's behalf, as she had already "discharged the firm and instructed it to take no further action on her behalf." (In re Marriage of Read, supra, 97 Cal.App.4th at p. 481.) The court thus concluded that the attorneys "had no right to file the proposed fee order with the judge after their discharge and substitution out of the case. They had no standing to go against [the wife's] express wishes by pursuing that order." (Ibid.) Their remedy, as instructed by the Meadow court, was to bring a separate action against the client, not purport to represent her in the family law proceeding. (Id. at p. 482; see also Meadow, supra, 59 Cal.2d at p. 616 [attorney compensation must be sought in independent action against the client, not by motion in court where litigation is pending].)

In contrast to Read is the situation presented in In re Marriage of Erickson and Simpson (2006) 141 Cal.App.4th 707 (Simpson), discussed by Robert and the referee, but not by appellants. The distinguishing fact in Simpson is that the client expressly joined in her former attorney's Borson motion. Even though the formal substitution of attorney had been effected by the time of the hearing, the court still had jurisdiction to award the requested fees, because "the pivotal factor governing a trial court's jurisdiction to award a direct fee payment is whether the former client authorized the former attorney to make the fee request on the former client's behalf." (Id. at p. 710.)

Unquestionably, there was no express authorization in the case before us; on the contrary, Valentia expressly directed appellants not to perform any further work on her behalf. "Because the right to have fees paid belongs to the party, not to counsel" (Simpson, supra, 141 Cal.App.4th at p. 713), a Borson motion without the client's consent may not be granted. The trial court correctly applied the facts in light of the principles articulated in Meadow, Borson, Read, and Simpson in denying appellants' motion for fees. This conclusion obviates consideration of appellants' suggestion that the court was authorized to award fees under Family Code section 20230 based on Robert's ability to pay. Appellants do not represent Valentia or her interests in making this argument.


The order is affirmed.




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