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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...

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