Filed 5/9/13 Rees v. Laubscher CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

SAMUEL T. REES,                                                       B237529

                   Plaintiff and Appellant,                           (Los Angeles County
                                                                      Super. Ct. No. BC363173)
         v.

BARRY R. LAUBSCHER,

                   Defendant and Respondent.




         APPEAL from a judgment and order of the Superior Court of Los Angeles
County. Gregory W. Alarcon, Judge. Affirmed.


         Samuel T. Rees, in pro. per., for Plaintiff and Appellant.


         Barry R. Laubscher, in pro. per.; Lewis Brisbois Bisgaard & Smith and Gary M.
Lape for Defendant and Respondent.
       Plaintiff and appellant Samuel T. Rees (Rees) appeals from the summary judgment
entered in favor of defendant and respondent Barry R. Laubscher (Laubscher) in this
action for breach of contract and for dissolution and accounting of a partnership. Rees
also appeals the denial of his motion for costs under Code of Civil Procedure section
1032 following Laubscher’s voluntary dismissal of a cross-complaint. We affirm the
judgment and the order denying Rees’s motion for costs.
                                     BACKGROUND
Parties
       Rees and Laubscher are both attorneys who were “of counsel” to Daar &
Newman, a professional law corporation (Daar & Newman). In 1999, Rees began
providing legal services on client matters originated by Laubscher. The client matters
included both hourly and contingent fee work, and Laubscher paid Rees a portion of the
fees collected from these clients.
       A dispute arose between the parties in connection with Laubscher’s payments to
Rees for work performed on certain contingent fee matters, including a matter for a client
named Grand Sprinkler Supply, Inc. (Grand Sprinkler).
Complaint
       On December 11, 2006, Rees filed a verified complaint against Laubscher for
breach of contract and for dissolution of partnership and an accounting. In his first cause
of action for breach of contract, Rees alleged that he and Laubscher entered into an
agreement to represent clients through Daar & Newman on a contingency fee basis and to
divide recoveries on client matters between them on a pro rata basis according to hours
worked on the matter, after payment of unreimbursed costs and a 12.5 percent fee to the
attorney originating the work. Rees further alleged Laubscher owed him more than
$200,000 in unpaid fees on various matters, including the Grand Sprinkler matter.
       In his second cause of action for dissolution of partnership and an accounting,
Rees alleged that he and Laubscher formed a general partnership to provide legal services
to clients of Daar & Newman on a contingency fee basis. The terms of the partnership,
Rees alleged, were set forth in writings and emails between him and Laubscher and

                                             2
consisted principally of the fee sharing arrangement described in the first cause of action.
Rees further alleged that during the existence of the partnership, Laubscher became
dissatisfied with Rees and terminated his services. Rees prayed for a declaration
dissolving the partnership, an accounting of partnership receipts and disbursements,
appointment of a receiver to take control of the Grand Sprinkler recovery, distribution of
partnership assets, and damages.
Summary judgment motion
       Laubscher filed an answer to Rees’s verified complaint, as well as a cross-
complaint for breach of contract and declaratory relief.
Laubscher then moved for summary judgment as to the causes of action asserted in
Rees’s complaint on the grounds that rule 2-200(A)(1) of the California Rules of
Professional Conduct (rule 2-200) barred the causes of action; there was no legally
cognizable partnership to dissolve; and if such a partnership existed, Rees failed to name
necessary and indispensable parties.
       In support of his motion, Laubscher submitted his own declaration in which he
averred that no client, including Grand Sprinkler, had ever agreed in writing to the fee
sharing agreement alleged by Rees. Laubscher further stated in his declaration that
neither he nor Rees were shareholders in Daar & Newman or in any other law firm; he
and Rees at all relevant times were and held themselves out to be “of counsel” to Daar &
Newman; Rees never referred in writing to his relationship with Laubscher as a
partnership before the Grand Sprinkler dispute; the alleged partnership between Rees and
Laubscher obtained no business license, had no business or trust bank accounts, was not
registered with the state bar, never issued any K-1’s or filed any state or federal income
tax forms, and had no written partnership agreement.
       Rees opposed the summary judgment motion, arguing that triable issues of
material fact existed as to each of the elements of his claims. Rees disputed the fact that
Grand Sprinkler had never agreed in writing to his fee sharing agreement with Laubscher.
He offered in opposition a retainer agreement entered into by Grand Sprinkler and Daar


                                             3
& Newman (the retainer agreement) and a separate fee sharing agreement between Daar
& Newman and the Arizona law firm of Rake & Catanese (the DN/RC agreement).
       The retainer agreement states that Grand Sprinkler agreed to retain Daar &
Newman as its attorneys to prosecute certain claims against The Toro Company, and that
Laubscher, as of counsel to Daar & Newman, would be the attorney primarily responsible
for the matter. The retainer agreement further states that Daar & Newman’s
representation would be on a full contingency fee basis for all services performed and
specifies a formula for payment to Daar & Newman a portion of any recovery obtained
on behalf of Grand Sprinkler by settlement, judgment, or otherwise.
       The DN/RC agreement sets forth the basis upon which Daar & Newman and Rake
& Catanese agreed to share fees, if any, earned in the Grand Sprinkler case. The two
firms agreed to divide the fees earned, after payment of unreimbursed costs and a 12.5
percent origination fee to Daar & Newman, in proportion to the value of time spent by
the respective law firms’ personnel. Laubscher and Rees are listed under Darr &
Newman personnel at the hourly rate of $300. Other Daar & Newman personnel listed
are Michael White at the rate of $240 per hour, Kurt Ressler at the rate of $200 per hour,
and Alisa Daniels, a legal assistant, at the rate of $125 per hour. The agreement also lists
personnel from Rake & Catanese and their respective hourly rates.
       The DN/RC agreement was signed by Laubscher on behalf of Daar & Newman
and by David Catanese, a partner of Rake & Catanese. The President of Grand Sprinkler,
Chaim Avraham, also signed the DN/RC agreement under the following
acknowledgment: “I am aware of the above fee sharing agreement and hereby consent to
it on behalf of Grand Sprinkler. I understand that this agreement does not in any way
affect or change the total fees to be paid by Grand Sprinkler in the event of a recovery,
which are to be determined in accordance with the written fee agreement between Grand
Sprinkler and Daar & Newman, which has been approved by the bankruptcy court.”1

1      Because Grand Sprinkler was the debtor in a chapter 11 bankruptcy proceeding, its
retention of Daar & Newman and its subsequent retention of Rake & Catanese as co-
counsel required the approval of the bankruptcy court. Grand Sprinkler obtained the
                                             4
       Rees also submitted the declaration of David Catanese, one of the signatories to
the DN/RC fee sharing agreement. Catanese stated in his declaration that Laubscher and
Rees both told him that the fee sharing formula set forth in the DN/RC agreement was
identical to that used by Rees and Laubscher for sharing fees on other contingency
matters the two of them undertook as of counsel to Daar & Newman.
       In opposing summary judgment, Rees also disputed the absence of any written
partnership agreement between him and Laubscher and the fact that he had never referred
in writing to his relationship with Laubscher as a partnership. He offered various email
exchanges between himself and Laubscher in which they referred to each other as
“partners” as evidence to support his position.
       Following a hearing at which both parties presented argument, the trial court
granted summary judgment in Laubscher’s favor. The court concluded that Rees’s cause
of action for breach of the alleged fee sharing agreement was barred by rule 2-200 and
that the cause of action for dissolution of partnership and an accounting failed because
there was no legally cognizable partnership to dissolve, and if there was, Rees had failed
to name necessary and indispensable parties.
Judgment and motion for costs
       The trial court denied a subsequent motion by Rees for clarification or
reconsideration of its summary judgment order. Laubscher thereafter voluntarily
dismissed his cross-complaint. Following that dismissal, Rees filed a cost bill for
$3,608.20. Laubscher moved to strike the cost bill on the ground that Rees was not a
prevailing party entitled to costs. The trial court issued an order striking all of Rees’s
costs and entered judgment against Rees in his action against Laubscher. This appeal
followed.




bankruptcy court’s approval to do so. The Grand Sprinkler case was settled in January
2005.

                                              5
                                       DISCUSSION
I. Standard of review
       Summary judgment is granted when a moving party establishes the right to entry
of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant
moving for summary judgment bears the initial burden of proving that there is no merit to
a cause of action by showing that one or more elements of the cause of action cannot be
established or that there is a complete defense to that cause of action. (Code Civ. Proc.,
§ 437c, subd. (p)(2); Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.)
Once the defendant has made such a showing, the burden shifts to the plaintiff to show
that a triable issue of one or more material facts exists as to that cause of action or as to a
defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
849.) If the plaintiff does not make such a showing, summary judgment in favor of the
defendant is appropriate. In order to obtain a summary judgment, “all that the defendant
need do is to show that the plaintiff cannot establish at least one element of the cause of
action . . . . [T]he defendant need not himself conclusively negate any such
element . . . .” (Id. at p. 853.)
       We review the trial court’s grant of summary judgment de novo and decide
independently whether the facts not subject to triable dispute warrant judgment for the
moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348;
Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s determination that Rees
was not a prevailing party entitled to costs under Code of Civil Procedure section 1032
for abuse of discretion. (Arias v. Katella Townhouse Homeowners Assn., Inc. (2005) 127
Cal.App.4th 847, 852.)
II. Summary judgment
       A. Breach of contract
       Rees challenges the trial court’s determination that rule 2-200 barred his cause of
action for breach of contract. Rule 2-200 requires full disclosure to a client of any fee
sharing arrangement between lawyers who are not partners, associates, or shareholders,
and a signed written consent by the client. It provides in relevant part:

                                               6
      “(A) A member shall not divide a fee for legal services with a lawyer who
      is not a partner of, associate of, or shareholder with the member unless:

             “(1) The client has consented in writing thereto after a full disclosure
      has been made in writing that a division of fees will be made and the terms
      of such division; and

              “(2) The total fee charged by all lawyers is not increased solely by
      reason of the provision for division of fees and is not unconscionable as
      that term is defined in rule 4-200.”

Failure to comply with the client disclosure and written consent requirements of rule
2-200 renders the fee sharing agreement unenforceable. (Chambers v. Kay (2002) 29
Cal.4th 142, 158-160 (Chambers).)
             1. No triable issue regarding client disclosure or consent
      Rees contends his fee sharing agreement with Laubscher is set forth in the DN/RC
agreement, which complies with rule 2-200 because it was both disclosed to and signed
by Grand Sprinkler.
      The DN/RC agreement is not evidence of a fee sharing agreement between Rees
and Laubscher. The DN/RC agreement, on its face, is between Daar & Newman and
Rake & Catanese, not between Laubscher and Rees. The DN/RC agreement sets forth a
method by which Daar & Newman and Rake & Catanese agreed to share fees on the
Grand Sprinkler case. It does not set forth any method for Laubscher and Rees to share
fees, nor does it disclose the existence of any fee sharing agreement between them.
      The terms of the DN/RC agreement are not the same as the terms of the fee
sharing agreement alleged in Rees’s complaint. In paragraph 13 of the verified
complaint, Rees alleges that Laubscher, as the “originating party” would be paid a 12.5
percent origination fee. The DN/RC agreement, in contrast, states that a 12.5 percent
origination fee will be paid to Daar & Newman, and not to Laubscher.
      Rees contends both his declaration and the declaration of David Catanese establish
that the DN/RC agreement was intended to govern the division of fees not only between
Daar & Newman and Rake & Catanese, but also between Laubscher and Rees. Neither

                                            7
Rees’s declaration nor Catanese’s declaration raises a triable issue as to whether Grand
Sprinkler knew of or consented to the alleged fee sharing agreement between Rees and
Laubscher. Catanese’s understanding of the fee sharing agreement is not relevant,
because disclosure to Catanese was not disclosure to Grand Sprinkler. Although Rees
argues that disclosure to Catanese satisfies the client disclosure requirement of rule 2-200
because Catanese’s knowledge of the fee sharing agreement should be attributable to
Grand Sprinkler, his argument conflicts with the purpose of the notice and consent
requirements of rule 2-200. That purpose, our Supreme Court has explained, is to allow a
client the opportunity to reject a proposed fee sharing:
               “‘Just as a client has a right to know how his or her attorney’s fees will be
       determined, he or she also has a right to know the extent of, and the basis for, the
       sharing of such fees by attorneys. Knowledge of these matters helps assure the
       client that he or she will not be charged unwarranted fees just so that the attorney
       who actually provides the client with representation on the legal matter has
       “sufficient compensation” to be able to share fees with the referring attorney. . . .’
       [Citation.] Moreover, ‘[r]equiring the client’s written consent to the fee sharing
       agreement impresses upon the client the importance of his or her consent, of the
       right to reject the fee sharing.’ [Citation.]”

(Chambers, supra, 29 Cal.4th at pp. 156-157, fn. omitted, quoting Margolin v. Shemaria
(2000) 85 Cal.App.4th 891, 903.)
       Rees presented no evidence that raises a triable issue as to whether Grand
Sprinkler or any other client knew of and consented to the alleged fee agreement between
him and Laubscher.
              2. No triable issue as to existence of partnership
       Rees next argues that a triable issue exists as to whether the alleged fee sharing
agreement was exempt from rule 2-200 because he and Laubscher were partners. Rule 2-
200 does not restrict the division of fees between a member of the State Bar and a lawyer
who is “a partner of, associate of, or shareholder with” that member. (Rule 2-200.)
       A “partnership” is defined in the Corporations Code as “an association of two or
more persons to carry on as coowners a business for profit under Section 16202,
predecessor law, or comparable law of another jurisdiction . . . .” (Corp. Code, § 16101,

                                              8
subd. (9).) “Generally, a partnership connotes co-ownership in partnership property, with
a sharing in the profits and losses of a continuing business. [Citation.]” (Chambers,
supra, 29 Cal.4th at p. 151, fn. omitted.)
       Rees failed to present evidence raising any triable issue as to whether he and
Laubscher were partners. There was no evidence that Rees and Laubscher were co-
owners of a law firm or law office. It is undisputed that neither of them was a
shareholder in Daar & Newman or in any other law firm. The sworn allegations in
Rees’s verified complaint establish that he and Laubscher were both “of counsel” to Daar
& Newman during the relevant time period. There is no evidence that the parties agreed
to share and in fact shared any “profits.” Rather, the evidence shows an agreement to
divide, and division of, “fees” paid by clients. Evidence that Rees and Laubscher
sometimes referred to one another as “partners” in email correspondence, without more,
is insufficient to raise a triable issue as to the existence of a partnership.
               3. Unpled theories not presented below
       Rees contends summary judgment was improperly granted because he has viable
causes of action for quantum meruit and breach of fiduciary duties. Rees failed to allege
causes of action for quantum meruit or breach of fiduciary duty and failed to argue those
theories when opposing summary judgment in the trial court below. He accordingly
forfeited the right to do so in this appeal. (Perez v. Grajales (2008) 169 Cal.App.4th 580,
591-592 [arguments raised for the first time on appeal are deemed forfeited]; Conroy v.
Regents of University of California (2009) 45 Cal.4th 1244, 1254 [to create a triable issue
of material fact, opposition evidence must be directed to issues raised by the pleadings].)
       B. Dissolution of partnership and accounting
       As discussed in section II.A.2 above, Rees presented no evidence that raises a
triable issue as the existence of a partnership between him and Laubscher. Summary
judgment was therefore properly granted as to Rees’s cause of action for dissolution of
partnership and an accounting.




                                                9
III. Cost motion
       Rees contends the trial court erred by denying his motion for costs as the
prevailing party under Code of Civil Procedure section 1032 after Laubscher voluntarily
dismissed his cross-complaint against him. Code of Civil Procedure section 1032,
subdivision (b) states that “a prevailing party is entitled as a matter of right to recover
costs in any action or proceeding.” Code of Civil Procedure section 1032, subdivision
(a)(4) defines “prevailing party” to include “a defendant in whose favor a dismissal is
entered.”
       Not all voluntary dismissals, however, make the defendant a “prevailing party” for
purposes of cost recovery under the statute. “[T]he issue of whether a voluntary
dismissal was truly entered ‘in favor’ of the defendant can arise in a variety of procedural
settings, may involve questions of fact [citation], and is in any event a matter best left to
the sound discretion of the trial court [citations].” (Damian v. Tamondong (1998) 65
Cal.App.4th 1115, 1130.) In the instant case, because Laubscher prevailed on all of the
causes of action Rees asserted against him before dismissing his cross-claims against
Rees, Rees cannot be said to have “prevailed” against Laubscher, even though the cross-
complaint against him was dismissed. (See id. at pp. 1125-1130 [discussing cases].)
       The trial court did not abuse its discretion by denying Rees’s motion for costs.
                                       DISPOSITION
       The judgment is affirmed, as is the order denying Rees’s motion for costs.
Laubscher is awarded his costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

                                                   ___________________________, J.
                                                   CHAVEZ
We concur:

___________________________, Acting P. J. ___________________________, J.*
ASHMANN-GERST                                      FERNS
________________________________________________________________________
*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                              10
