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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                    B240730
      Plaintiff, Cross-defendant and
                                                                     (Los Angeles County
Appellant,
                                                                     Super. Ct. No. BC453298)
         v.

DENNIS GRANT,
      Defendant, Cross-complainant and
Appellant.



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


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


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


                                                   *********
       Plaintiff, cross-defendant and appellant 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 late mother. After the trust action was settled,
Halimi sued Grant for unpaid legal fees. Grant filed a cross-complaint against Halimi
pleading professional malpractice and other causes of action. The trial court sustained
the demurrer to Halimi’s first amended complaint without leave to amend as to the first
through fourth causes of action but permitted the filing of a second amended complaint
for quantum meruit. At the beginning of trial, Halimi voluntarily dismissed this
complaint, and a three-day court trial ensued on the cross-complaint. The trial court
awarded Grant $200,000 on the cross-complaint. Halimi and Grant each appeal from the
judgment. We affirm.
                                      BACKGROUND
       1.     The Trust Action
       Pursuant to the 2005 amendment to her trust, Grant’s mother designated Grant as
the sole beneficiary. In 2006, Linda Goldman-Ofer (Ofer), Grant’s sister, induced their
elderly and mentally incompetent mother to amend the trust 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 the 2006 amendment. Halimi filed a petition to
invalidate that amendment more than 120 days after Ofer had given a trustee’s
notification. The probate court sustained Ofer’s demurrer to the petition on the ground it
was not timely and granted leave to amend. The amended 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 would receive only
$653,483.69, or 60 percent of the personal assets in the trust at the time of settlement,



                                               2
instead of 100 percent of all trust personal assets if the 2006 trust amendment had been
declared void. The probate court approved the settlement.
       2.     This Action
       In the current case, Halimi filed a first amended complaint for breach of contract,
conversion, constructive trust and common count. The trial court (J. Susan Bryant-
Deason) 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 complaint for quantum meruit but dismissed this
complaint on the first day of trial.
       The case went to trial only on Grant’s operative cross-complaint. Following trial,
the court (J. Victor Chavez) entered judgment for Grant on his professional negligence
claim. The trial court found Halimi could have alleged facts to establish tolling of the
statute of limitations to challenge the trust. Ofer had not only used undue influence to
persuade their mother to change the trust terms when she was not competent to
understand what she was doing, but she had also fraudulently misrepresented 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 misrepresentations that had misled Grant concerning
the terms of the trust. Worse, Halimi advised Grant he would likely lose the summary
judgment motion and should settle the trust dispute as favorably 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 court awarded Grant $200,000 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 complaint. 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 been $531,365.88, which is the amount Ofer
received in the trust settlement.
       For the reasons explained below, we affirm the judgment.


                                              3
                                          DISCUSSION
          1.     Grant’s Appeal
          In the interest of brevity, we discuss first Grant’s appeal of the judgment in his
favor on his cross-complaint. His opening brief 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. Grant 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 whether the trial court awarded damages in
conformance with Civil Code section 3333, which provides the measure of tort damages
is “the amount which will compensate for all the detriment proximately caused thereby,
whether it could have been anticipated or not.”
          Grant is mistaken that his challenge to the damages awarded presents a question of
law. His contention that the court was required to award $531,365.88 in damages hinges
on the factual issues whether substantial evidence supports the trial court’s $200,000
award, and whether the court arbitrarily and 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 references to three exhibits: a document amending the trust in 2006, a
letter from defense counsel to Halimi, and the settlement agreement 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. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th
1262, 1274.) We therefore find Grant has forfeited 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.




                                                  4
       2.      Halimi’s Appeal1
               a. Sustaining of demurrer and dismissal of four causes of action
       Halimi contends the trial court erred in sustaining Grant’s demurrer to the first
amended complaint without leave 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 determine 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 court has abused its discretion and we reverse;
if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of
proving such reasonable possibility is squarely on the plaintiff.’ [Citations.]” (Zelig v.
County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)
       The first amended complaint alleged Halimi and Grant entered into a written
retainer agreement, a copy of which was attached, whereby 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 action but that, except for payment to Halimi of
$59,138.37, Grant refused to pay the additional contingent fee due.
       A retainer agreement with a contingency fee provision generally must comply
with the mandates of section 6147 of the Business and Professions Code. In relevant
part, the contingency fee contract must be in writing, signed by both 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 affect 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 motion for judicial notice with a
proposed order. (Cal. Rules of Court, rule 8.252(a)(1).)

                                                5
recovery. [¶] (3) A statement as to what extent, if any, the client could be required to
pay any compensation to the attorney for related matters that arise out of their
relationship not covered by their contingency 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 shall thereupon be entitled to collect a reasonable fee.” (§ 6147,
subds. (a)(2), (3) & (b).)
       The contingency fee contract between Halimi and Grant provides: “Attorney[]
fee[s] shall be contingent upon vacating and declaring void the [2006 Trust Amendment],
and all contested matters, including recovery of settlement, arbitration award, court
judgment, and/or punitive damages (hereinafter referred to as ‘Recovery’). . . . Bearing
in mind that the contingency fee is negotiable, [Grant] agrees that the following fee
arrangement is fair and reasonable, and to pay [Halimi] the following amount: Thirty
three percent (33%) of the total interest of [Grant] from the benefit received by [Grant]
from litigating the Declaration of Trust and any amendment thereof.”
       Thus, Halimi’s right to collect a fee was “contingent upon vacating and declaring
void the [2006 trust amendment], and all contested matters,” which never happened.
Additionally, the contingency fee contract did not comply with Business and Professions
Code section 6147, because the contract did 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 required to pay any compensation to the attorney
for related matters that arise out of their relationship not covered by their contingency fee
contract,” specifically the settlement of Grant’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 demurrer that he “has voided the contingency fee
agreement between [Halimi] and himself.” Halimi conceded that fact in his second
amended complaint: “Subsequent to signing of the Settlement Agreement by [Grant,


                                              6
Grant] has declared void the [contingency fee]” contract. The trial court properly
sustained the demurrer to the first amended complaint without leave to amend because all
of the causes of action were based on the void contingency fee contract.
              b. Judgment in favor of Grant on his cross-complaint 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, many 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 damaged 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 Ofer’s pending summary judgment motion based
on the statute of limitations gave Ofer settlement leverage against Grant. In his “error
# 3” claim, Halimi asserts the court erred in finding he was negligent 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” claim, Halimi asserts the court also erred in
finding he was negligent by failing 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,” “error #6,” and “error # 7” claims, Halimi
challenges the court’s findings of fact concerning the damages Grant sustained as a result
of Halimi’s negligence. Manifestly, each of these claimed errors concerns 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 fair summary of the evidence. In assessing
whether substantial evidence supports a judgment, the appellate court views all factual
matters in the light most favorable to the prevailing party, resolving all conflicts and
indulging all reasonable inferences from the evidence to support the judgment.
(Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.) An
appellant may not include only favorable evidence in his or her brief rather than all
“significant facts.” (In re S.C. (2006) 138 Cal.App.4th 396, 402.) An appellant forfeits


                                              7
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 the adequacy of the evidence 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 Grant to call an expert witness who was not
disclosed until trial and by “adopting a defective statement of decision.”
         Halimi contends the trial court erred in allowing Grant to call Frederick Seymour,
over objection, to testify as an expert witness at trial. Grant had not named Mr. Seymour
as a witness during their meet and confer conference or in the joint witness list. After the
filing of the joint witness list and shortly before trial, Grant retained Mr. Seymour. Grant
advised Halimi of the retention soon afterward but Halimi did not ask to take
Mr. Seymour’s deposition. No party had served a demand for the exchange of expert
witness information pursuant to the provisions of the Code of Civil Procedure.
         Halimi told the trial court he had “an issue 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. Nonetheless, the trial court 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 would be so he could
obtain further discovery. The trial court asked Halimi if he was requesting an
opportunity to take the deposition of Mr. Seymour 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 that it was too late to arrange for a court
reporter and to prepare for the deposition. Despite the court’s urging, Halimi declined the
offer.



                                               8
       We are not persuaded the trial court abused its discretion. In a footnote in his
opening brief, Halimi asserted for the first time that he was prejudiced because he had not
retained his own trust expert in reliance on Grant 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 erred 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 made 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 bring 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 omission 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 statement of decision a party pinpoints alleged
deficiencies in the statement and allows the court to focus on the facts or issues the party
contends were not resolved or whose resolution is ambiguous.’ [Citation.]” (Id. at
p. 498.)
       After Grant submitted a proposed statement of decision, Halimi filed a written
objection. Although he objected to five findings 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 wanted addressed in that statement. Instead,
Halimi merely objected to “the entire” proposed statement and stated: “The issues
objected [sic] by Halimi [are] spread throughout the Proposed Statement of Decision[.]


                                               9
As such, it is impossible to pinpoint each issue by page number and line number. The
essential objections by Halimi are based on the [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 the judgment, which had not yet been entered,
and for entry of another and different judgment, 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 Halimi 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.




                                             10
