Shtofman v. Ivoko CA2/3 ( 2021 )

Filed 4/28/21 Shtofman v. Ivoko CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
ROBERT SCOTT SHTOFMAN, B295469
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BC538187
v.
BERNICE CHINYERE IVOKO,
Defendant and Appellant.
APPEAL from orders and judgment of the Superior Court
of Los Angeles County, Daniel S. Murphy, Judge. Affirmed.
Law Office of George E. Omoko and George E. Omoko
for Defendant and Appellant Bernice Chinyere Ivoko.
Law Offices of Robert Scott Shtofman, Robert Scott
Shtofman; Law Offices of Richard M. Chaskin and Richard M.
Chaskin for Plaintiff and Respondent.
_________________________
In 2010 and 2011, attorney Robert Scott Shtofman
represented Bernice Chinyere Ivoko in a civil lawsuit, resulting
in a million-dollar jury verdict in her favor and the award
of control over a partnership. Ivoko did not pay Shtofman’s
attorney fees. Shtofman sued Ivoko, and a jury awarded him
$271,600. Ivoko appeals, and we affirm.
BACKGROUND
Beginning November 6, 2010, Shtofman represented Ivoko,
the plaintiff in a Riverside County lawsuit over ownership and
control of a partnership business providing home health care
(the partnership case). Shtofman was Ivoko’s third attorney.
After 25 court days of trial, on March 7, 2011, the jury awarded
Ivoko $1,008,067.59, including $400,000 in punitive damages and
$27,067.59 in costs. In the second phase of the partnership case,
after a bench trial, the trial court awarded Ivoko control over
the partnership’s finances. Shtofman represented Ivoko until
September 12, 2011.
After Ivoko did not pay Shtofman for his work, he sued her,
filing his initial complaint on March 4, 2014. Shtofman filed
a second amended complaint (SAC) on April 29, 2016, alleging
breach of written contract, open book account, fraud, avoidance
of fraudulent transfer, and quantum meruit. The complaint
alleged Ivoko owed Shtofman $334,841.03 in attorney fees
plus prejudgment interest for breach of contract under the
terms of a written retainer agreement specifying $250 an hour,
and $649,291.03 under his claim for quantum meruit as the
reasonable value of his services, at his regular hourly rate of
$500. Shtofman requested general and special damages, costs,
and punitive damages on the fraud causes of action. Ivoko’s
2
answer alleged she agreed to pay Shtofman $45,000 for his work
on the partnership case.
Ivoko filed a motion for judgment on the pleadings, and on
April 21, 2017, the trial court granted the motion on the fraud
cause of action.
Ivoko filed a motion for summary judgment and summary
adjudication. On September 5, 2017, the trial court granted
summary adjudication on Shtofman’s causes of action for breach
of contract and fraudulent transfer. The trial court denied
summary adjudication on the causes of action for open book
account and quantum meruit, concluding triable issues of fact
existed regarding the tolling of the two-year statute of
limitations.
Shtofman filed a motion for monetary, issue, and/or
terminating sanctions against Ivoko and her counsel George
Omoko for discovery abuse, including their obstructive conduct
during Ivoko’s June 27, 2017 deposition. On September 27, 2017,
the court awarded $8,014.45 in joint monetary sanctions against
Omoko and Ivoko. The court appointed a discovery referee for
the resumption of Ivoko’s deposition in 45 days, with Shtofman’s
counsel to give notice.
On March 20, 2018, Shtofman filed an ex parte application
to compel the resumption of Ivoko’s deposition. The trial court
granted the application and ordered Ivoko to appear for her
deposition and to produce documents on April 18, 2018, with
Shtofman’s counsel to give notice. Trial was set for April 24.
Ivoko did not appear for her April 18 deposition. On
April 24, the trial court heard argument on Shtofman’s April 20
motion for sanctions, and set an evidentiary hearing for May 4
to consider whether to impose nonmonetary sanctions. In an
3
order filed May 7, 2018, the court found Shtofman and Ivoko
shared fault and declined to impose terminating or evidentiary
sanctions. The court ordered Ivoko’s deposition within 45 days,
with Ivoko and Omoko jointly to pay the costs incurred on
April 18 and the costs of the continued deposition.
Shtofman filed a motion for reconsideration. At the trial
setting conference on August 1, 2018, the court found Shtofman
had spent almost two years trying to complete Ivoko’s deposition.
Despite the monetary sanctions imposed in September 2017,
Ivoko and Omoko further abused the discovery process when
Ivoko failed to appear for her April 18, 2018 deposition. Although
Shtofman did not serve Ivoko with notice of the court’s ruling,
Omoko was present in court and was fully aware of the order
setting the deposition for April 18. Omoko ignored a notice
of deposition served on April 9 and emails from counsel and
the discovery referee, and did not object to irregularities in
the deposition notice. The court imposed issue sanctions barring
Ivoko from presenting any evidence concerning her statute
of limitations defense. Because that defense was the primary
reason to depose Ivoko, the court did not order the deposition
to resume.
After trial, on December 14, 2018, the jury found in favor
of Shtofman on his claims for open book account and quantum
meruit, awarding him $271,600. Ivoko filed this timely appeal.
DISCUSSION
Ivoko’s sprawling brief raises many issues, which we distill
as follows.
4
1. The trial court properly denied the motion for
judgment on the pleadings
Ivoko argues the trial court erred when it denied her
motion for judgment on the pleadings on Shtofman’s cause of
action for quantum meruit. The motion argued the claim was
barred by the two-year statute of limitations and by Shtofman’s
incorporation of an express written agreement between Shtofman
and Ivoko (the retainer agreement) in his breach of contract
claim. On April 21, 2017, the trial court denied Ivoko’s motion
as to this cause of action. Shtofman had properly alleged tolling,
and the court had already rejected the argument regarding the
incorporation of the retainer agreement when it ruled on Ivoko’s
demurrer to the first amended complaint. Shtofman could plead
alternative causes of action, and could recover under quantum
meruit if the retainer agreement was not an enforceable contract.
An order denying a motion for judgment on the pleadings is
not itself an appealable order, but an appeal from the order may
be taken from the ultimate judgment, if the order necessarily
affects the judgment or substantially affects the rights of a party.
(Estate of Dayan (2016) 5 Cal.App.5th 29, 38-39.) Here the trial
court denied Ivoko’s motion for judgment on the pleadings on
the claim for quantum meruit based on her statute of limitations
defense. The order denying judgment on the pleadings
necessarily affected the judgment and substantially affected
Ivoko’s rights. If Ivoko had prevailed on her motion for judgment
on the pleadings, the remaining claims on which Shtofman
prevailed after trial would have been dismissed before the
trial court imposed issue sanctions barring her from asserting
the defense at trial.
5
We review the order denying the motion for judgment on
the pleadings de novo, treating the pleadings as admitting all
material facts properly pleaded and considering evidence outside
the pleadings that the trial court considered without objection.
(Estate of Dayan, supra, 5 Cal.App.5th at pp. 39-40.)
As the trial court stated, Shtofman’s SAC included tolling
allegations on the quantum meruit claim. The SAC alleged Ivoko
was out of state for one or more days between November 13, 2010
and November 13, 2013, and under Code of Civil Procedure
section 351,1 the statute of limitations was tolled for each day
that she was gone from California. The trial court correctly
pointed out (as we explain below) that, should it find the written
retainer agreement incorporated into the contract claim was
unenforceable, Shtofman could recover under quantum meruit.
The trial court properly denied Ivoko’s motion for judgment
on the pleadings as to the quantum meruit claim.
2. The trial court properly denied summary judgment/
adjudication
Ivoko filed a motion for summary judgment/adjudication
in which (among other arguments) she argued the claims
for quantum meruit and open book account were barred by
the two-year statute of limitations and by the incorporation
of the retainer agreement in the breach of contract claim. On
September 5, 2017, the trial granted summary adjudication
on Shtofman’s breach of contract claim. Undisputed evidence
showed he failed to comply with subdivision (b) of Business and
Professions Code section 6148, which requires an attorney to
provide a bill upon the client’s request within certain time limits,
1 All the statutory references that follow are to the Code of
Civil Procedure, unless otherwise stated.
6
and so the written retainer agreement was voidable. But the
court denied summary adjudication of the claims for quantum
meruit and open book account, concluding evidence of Ivoko’s
absences from the state of California and the arbitration between
Shtofman and Ivoko created triable issues of fact whether the
limitations period had been tolled.
An order denying summary adjudication is not itself
appealable, but may be reviewed on direct appeal of a
final judgment after trial if the appellant shows the ruling
prejudiced her. (Federal Deposit Ins. Corp. v. Dintino (2008)
167 Cal.App.4th 333, 343 (FDIC).) The order results in
prejudicial error if the issues raised in the motion and denied
summary adjudication are not addressed at the subsequent trial.
(Ibid.) Here the trial court imposed issue sanctions before trial
which entirely barred the statute of limitations defense, so the
question was not addressed on the merits and decided adversely
to Ivoko. “[I]t is properly before us because it was not revisited at
trial.” (Diaz v. Grill Concepts Services, Inc. (2018) 23 Cal.App.5th
859, 867.) Ivoko’s defense that the existence of the written
retainer agreement barred the quantum meruit claim also was
not revisited at trial, and so the denial of summary adjudication
on that basis also is properly before us.
We review de novo, “ ‘considering all the evidence set
forth in the moving and opposition papers except that to which
objections have been made and sustained.’ ” (FDIC, supra, 167
Cal.App.4th at p. 345.)
a. Incorporation of retainer agreement
Ivoko argues that because Shtofman incorporated the
written retainer agreement into his claim for breach of contract,
7
the court erred when it denied summary adjudication on the
quantum meruit claim.
The trial court granted summary adjudication on the
breach of contract claim because Shtofman violated Business
and Professions Code section 6148, subdivision (c): “Failure to
comply with any provision of this section renders the agreement
voidable at the option of the client, and the attorney shall, upon
the agreement being voided, be entitled to collect a reasonable fee.”
(Italics added.)
Quantum meruit is an equitable doctrine “that has
sometimes been applied to allow attorneys ‘to recover the
reasonable value of their legal services from their clients when
their fee agreements are found to be invalid or unenforceable.’ ”
(Sheppard, Mullin, Richter & Hampton, LLP v. J-M
Manufacturing Co., Inc. (2018) 6 Cal.5th 59, 88; see Huskinson
& Brown v. Wolf (2004) 32 Cal.4th 453, 462.) Recovery is barred
if the entire contractual fee arrangement was prohibited by
statute or public policy, or a conflict of interest or an ethical
violation pervaded the whole relationship. (Fair v. Bakhtiari
(2011) 195 Cal.App.4th 1135, 1150-1151, 1162.) That is not
the case here.
Ivoko cites Klein v. Chevron U.S.A., Inc. (2012) 202
Cal.App.4th 1342, 1388, which held “[a] plaintiff may not,
however, pursue or recover on a quasi-contract claim if the
parties have an enforceable agreement regarding a particular
subject matter.” (Italics added.) Here, the trial court found
the retainer agreement was not an enforceable contract when
it granted summary adjudication on Shtofman’s breach of
contract claim.
8
The incorporation of the retainer agreement into the
breach of contract claim did not require the trial court to grant
summary judgment on the quantum meruit claim.
b. Two-year statute of limitations
In its order, the trial court agreed with Ivoko that
Shtofman’s quantum meruit claim arose when the attorney-client
relationship ended on September 12, 2011,2 as alleged in the
SAC, and he was subject to a two-year statute of limitations
under section 339. 894 days elapsed before Shtofman filed the
initial complaint on March 4, 2014, requiring 164 days of tolling
to avoid the statute of limitations bar. Section 351 tolls the
limitations period while Ivoko was out of state. She conceded
she was out of state for 52 days (from December 2011 to
January 2012, and December 2012 to January 2013). Her
passport also showed she left the country on October 25, 2013.
When Shtofman requested in discovery her travel itineraries
and airline tickets after December 1, 2010, Ivoko responded
some documents were no longer in her possession. She believed
documents for the period between October 25, 2013 and
September 2014 were in the custody and control of Singapore
Airlines, Tom Bradley International Terminal, Southwest
Airlines, and US Airways. She thus conceded she had traveled
2 The trial court’s order also gave the date of accrual as
September 22, 2011, as Ivoko argued in her reply to Shtofman’s
opposition: “[T]he attorney-client relationship ended on
September 12, 2011, as alleged by Shtofman himself, or no later
than September 22, 2011, as successfully urged by Shtofman and
accepted by the Court . . . . It does not require a rocket scientist
to know that Shtofman’s action commenced March 4, 2014, was
more than two years from September 12, 2011, or September 22,
2011.”
9
out of state between October 25, 2013 and September 2014, and
she did not produce evidence about her return. The trial court
found this created triable issues of fact about when Ivoko was
out of state, and how far out those absences tolled the statute
of limitations.
Shtofman also submitted evidence of a petition for
arbitration of fee disputes he served on Ivoko on November 22,
2013, and a demand for arbitration Ivoko served on him on
December 19, 2013. Business and Professions Code section
6206 tolls the statute of limitations period “from the time an
arbitration is initiated . . . until (a) 30 days after receipt of
notice of the award of the arbitrators, or (b) receipt of notice that
the arbitration is otherwise terminated, whichever comes first.”
The trial court concluded the fee arbitration also created a
triable issue of fact about the tolling of the limitations period.
i. Tolling during arbitration
Ivoko argues the SAC did not allege that arbitration tolled
the limitations period, and Shtofman “may not oppose a summary
judgment motion based on a claim, theory, or defense that is not
alleged in the pleadings.” (California Bank & Trust v. Lawlor
(2013) 222 Cal.App.4th 625, 637, fn. 3.) Instead, Shtofman was
required to move to amend the complaint.
The SAC alleged Ivoko was out of California for one or
more days between November 13, 2010 and November 13, 2013,
tolling the statute of limitations. The complaint also alleged
Shtofman had hand-delivered to Ivoko on November 22, 2013
a letter notifying her of her right to arbitration, as required by
Business and Professions Code section 6201, and alleged Ivoko
waived her right to arbitration by not requesting it within 30
days.
10
But Ivoko did petition for non-binding arbitration. In
support of her motion for summary judgment she requested
the court take judicial notice of a September 28, 2015 statement
of decision and award, and in her declaration she described
statements Shtofman made during the arbitration, which
she used in her separate statement as the basis for two of
her undisputed facts.
In opposition, Shtofman’s counsel Richard Chaskin
attached to his declaration Ivoko’s “Client Petition for
Arbitration,” filed December 19, 2013, and pointed out that
statements made in non-binding arbitration were not properly
before the court. Shtofman’s declaration stated the arbitration
tolled the statute of limitations from December 19, 2013 through
March 27, 2015.3 Shtofman’s separate statement of disputed
material facts cited the petition as creating a material question
whether the arbitration tolled the two-year statute of limitations.
Ivoko objected on the bases of legal conclusion and opinion,
lack of factual foundation, and hearsay. She also argued that
Shtofman’s SAC never alleged arbitration as a basis for tolling
and he never sought leave of court to amend his pleadings, and
also opposed on the merits. She has not waived this issue.
The pleadings set the boundaries of the issues that can be
resolved at summary judgment. (Oakland Raiders v. National
Football League (2005) 131 Cal.App.4th 621, 648.) A plaintiff
cannot bring up new or unpleaded issues in opposition, and
may not create immaterial factual conflicts outside the scope
3 The SAC incorporates into the quantum meruit claim
paragraphs 1-22. Shtofman’s declaration stated that was a typo,
and he requested leave to amend to incorporate paragraphs 1-23.
Paragraph 23 includes the tolling allegations.
11
of the pleadings. (Hutton v. Fidelity National Title Co. (2013)
213 Cal.App.4th 486, 493.) The defendant moving for summary
judgment is required only to “negate plaintiff’s theories of
liability as alleged in the complaint; that is, a moving party need
not refute liability on some theoretical possibility not included
in the pleadings.” (Ibid.) If the opposing party’s evidence
shows a factual assertion, legal theory, defense, or claim not yet
pleaded, then she should move for leave to amend the pleadings
before the hearing on the summary judgment motion. (Johnson
v. The Raytheon Co., Inc. (2019) 33 Cal.App.5th 617, 636.)
But the opposing party may allege additional facts or issues
when the complaint encompasses those allegations. “A new
factual issue may be presented in conjunction with motions for
summary judgment so long as the theory is encompassed by the
controlling pleading, construed broadly. [Citation.] If the new
issue is not encompassed in the original pleading, the trial court
should readily allow amendments to the original pleadings.”
(Cavalry SPV I, LLC v. Watkins (2019) 36 Cal.App.5th 1070,
1084.) “In making this determination, courts look to whether
the new factual issues present different theories of recovery
or rest on a fundamentally different factual basis.” (Laabs v.
City of Victorville (2008) 163 Cal.App.4th 1242, 1257.)
Here, Shtofman’s SAC alleged Ivoko’s absences from
California tolled the statute of limitations, and alleged that he
served her with notice of her right to arbitration. The complaint
also stated that Ivoko did not petition for arbitration. But its
allegation that the statute of limitations was tolled by Ivoko’s
absences from California was sufficient to encompass tolling
by the fee arbitration as well. This is true given the broad
construction we give to the pleadings, and especially as Ivoko
12
raised the issue of the fee arbitration in her motion for summary
judgment. Ivoko’s declaration included statements she claimed
Shtofman made during mandatory fee arbitration, and on April 7,
2017 she requested the court take judicial notice of the county
bar dispute resolution services arbitration statement of decision
and award, certified on October 6, 2015. Shtofman referred
to the arbitration in his April 19, 2017 opposition to Ivoko’s
motion for judgment on the pleadings regarding the statute of
limitations, arguing the arbitration was relevant to show tolling.
In any event, we see no prejudice to Ivoko. The court’s
primary reason for denying summary adjudication was the
existence of disputed material facts about Ivoko’s travel out
of California and the resulting length of the tolling period.
Even without considering the factual issues around additional
tolling based on the fee arbitration, as we discuss below, the court
properly denied summary judgment on the statute of limitations
defense.
ii. Tolling during out of state travel
Ivoko argues the trial court “bought into [ ] speculation
and guesswork” when it concluded triable issues existed about
her absences from California. As described above, however,
Ivoko’s passport showed she left the country on October 25, 2013,
and as she claimed to have lost or misplaced her subsequent
travel records, material questions of fact existed as to how long
she was out of California between then and September 2014.
Ivoko argues the trial court erred when it put the burden
on her to show when she was out of state. But the trial court
properly explained that when a defendant such as Ivoko moves
for summary judgment, she has the burden to show the action
has no merit, either by demonstrating one or more of the
13
elements of the cause of action “cannot be established, or that
there is a complete defense.” (§ 437c, subd. (p)(2); see Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) If
the defendant meets this burden, the onus shifts to the plaintiff
to provide sufficient evidence to demonstrate the existence of
a triable issue of material fact. (§ 437c, subd. (p)(2); see Aguilar,
25 Cal.4th at p. 850.) Once the defendant establishes the
existence of an affirmative defense, the burden on summary
judgment shifts to the plaintiff to produce evidence establishing
a triable issue of material fact refuting the defense. (Mirzada
v. Department of Transportation (2003) 111 Cal.App.4th 802,
806-807.) “[T]he court may not weigh the plaintiff’s evidence
or inferences against the defendants’ as though it were sitting
as the trier of fact. . . . [I]f the court concludes that the plaintiff’s
evidence or inferences raise a triable issue of material fact,
it must conclude its consideration and deny the defendants’
motion.” (Aguilar, 25 Cal.4th at p. 856.)
Ivoko argues she was prejudiced when the trial court
ignored her argument that her business travel to Chicago did
not toll the statute of limitations because she was engaged in
interstate commerce. She did not raise this issue in her motion
for summary judgment, merely stating she was out of California
for a total of 54 days during the two-year limitations period.
In her supplemental reply to Shtofman’s opposition, Ivoko for
the first time argued “Shtofman failed to create a triable issue
with regards to a single day of Ivoko’s absence from California
as justifying tolling.” Ivoko owned businesses in California
and Illinois, and under Filet Menu, Inc. v. Cheng (1999)
71 Cal.App.4th 1276 (Filet Menu), her travel was to facilitate
interstate commerce and could not be counted for tolling.
14
Filet Menu held section 351, which allows tolling when
a defendant is out of state, violated the Commerce Clause by
placing a special burden on California residents engaged in
interstate commerce that was not shared by residents engaged
only in local business. Tolling the statute of limitations during
their travel out of state to facilitate interstate commerce unfairly
extended their exposure to litigation, without a corresponding
benefit to the state. (Filet Menu, supra, 71 Cal.App.4th at
pp. 1282-1283.) Nevertheless, the trial court improperly
sustained a demurrer on that basis where the complaint did not
allege the specific reasons for the out-of-state travel or how the
travel was in the course of interstate commerce. (Id. at p. 1284.)4
When Ivoko raised the issue at the summary judgment
hearing a week after she first raised it in her supplemental reply,
the trial court responded: “You’re asking me to make factual
findings that basically as a matter of law she was traveling not
for pleasure but for employment. And I’m not inclined to do that.
That’s for the jury to decide.”
Ivoko raised this issue for the first time in her
supplemental reply to the opposition to her summary judgment
motion. She did not present evidence her travel out of California
was to facilitate interstate commerce. (Aguilar, supra, 25 Cal.4th
at pp. 865-866.) The trial court properly declined to consider her
4 We note that Ivoko erroneously equates travel “to check
on her business” with travel to facilitate interstate commerce.
If Ivoko’s business was not engaged in interstate commerce, her
business travel would not be in the service of that commerce.
(See Heritage Marketing & Ins. Services, Inc. v. Chrustawka
(2008) 160 Cal.App.4th 754, 759-760.)
15
Commerce Clause argument in ruling on her summary judgment
motion.
3. Substantial evidence showed Shtofman’s fees
and costs were reasonable and necessary
Ivoko argues no substantial evidence showed Shtofman’s
attorney fees and costs were reasonable and necessary. The bulk
of Ivoko’s argument is three pages counting how many times the
words “reasonable” and “necessary” appear in the trial transcript.
This word count is irrelevant.
Under the substantial evidence test, we ask only
whether, on the entire record, there is any substantial evidence
(contradicted or uncontradicted) to support the jury’s finding.
(Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822.) We
resolve every conflict in the evidence in favor of the judgment.
(Id. at p. 823.) Substantial evidence is evidence that is legally
significant, reasonable, credible, and of solid value. (Howard v.
Owens Corning (1999) 72 Cal.App.4th 621, 631.) The testimony
of a single witness may constitute substantial evidence, and
we defer to the jury’s implicit finding of credibility. (Duchrow
v. Forrest (2013) 215 Cal.App.4th 1359, 1376-1377.)
The party seeking recovery in quantum meruit does not
have to prove the existence of a contract, and a lawyer may
recover from his client the reasonable value of his legal services
even when the fee agreement is invalid or unenforceable for
other reasons. (Huskinson & Brown v. Wolf, supra, 32 Cal.4th
at pp. 458, 461.) The starting point for determining a reasonable
attorney fee is the number of hours reasonably spent on the
litigation multiplied by a reasonable hourly rate, and the lawyer
seeking fees should submit evidence of the hours worked and
the fees claimed, although billing records are not required.
16
(Madirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th
257, 269, 272.) The lawyer “seeking fees must also show the
total fees incurred were reasonable. Factors relevant to that
determination include ‘[t]he nature of the litigation, its difficulty,
the amount involved, the skill required in its handling, the
skill employed, the attention given, the success or failure of
the attorney’s efforts, the attorney’s skill and learning, including
his [or her] age and experience in the particular type of work
demanded.’ ” (Id. at p. 272.)
Shtofman attached as exhibits to his SAC the written
retainer agreement, a work ledger of over 60 pages, and a lengthy
bill of costs. He testified at length about his extensive experience
litigating civil cases with large awards, in Los Angeles and other
California counties. At the time he met Ivoko, judges generally
awarded him $500 an hour, but at the request of a former
co-counsel and mutual friend he had agreed to represent Ivoko
at a reduced hourly rate of $250 plus costs.
When he took over the case, trial was about two months
away, no depositions had been taken, and he had to review
voluminous paper discovery and paperwork. Shtofman drove
back and forth to Riverside from his home office in Encino to
prepare for and to litigate the 25-day trial, and he retained
three other lawyers to work with him on the case. He lost income
from other cases while he worked solely on the partnership case
and spent January through March in trial.
Ivoko testified Shtofman agreed to represent her in the
partnership case for no more than $45,000, although she had
nothing in writing. Shtofman denied he agreed to the $45,000
cap on fees. Ivoko’s counsel examined Shtofman in detail about
the reasonableness and necessity of the time he recorded. Ivoko’s
17
counsel asked whether individual items were “bill padding”
because Shtofman billed for himself and for co-counsel when they
both worked on the same task, and Shtofman explained attorneys
often worked together and each would be paid. Ivoko’s counsel
asked about duplicative billing, which Shtofman denied, and
questioned him at length about individual entries of fees
and costs. Shtofman also testified he kept contemporaneous
time billing records on his computer, including his starting
and stopping times.
Richard Sullivan, named as co-counsel in the retainer
agreement, testified he had practiced for over 25 years in
California, and had worked with Shtofman on many civil cases
including as an independent contractor on the partnership case.
Although at the time his regular fee was $375 an hour, on the
partnership case he billed Shtofman (who still owed him some
fees) $250 an hour. Sullivan testified he heard nothing about
a $45,000 cap on fees, and Shtofman was “a great attorney but
he’s not going to do free work.” Another attorney who worked
on the partnership case at Shtofman’s direction testified his
hourly rate was $350 but he charged Shtofman $250 an hour,
understanding that $250 was the fee established between
Shtofman and Ivoko. Shtofman had not paid him. Both
attorneys testified the time shown for individual billing entries
was necessary and reasonable, and both testified they assigned
their rights to Shtofman so he could proceed on their behalf
against Ivoko.
We have no authority to disturb factual findings supported
by substantial evidence. (Mikhaeilpoor v. BMW of North
America, LLC (2020) 48 Cal.App.5th 240, 255.) Viewing the
record in the light most favorable to the jury’s verdict, the record
18
demonstrates Shtofman took over a complicated partnership
case only two months before trial began, and cut his customary
hourly fee in half. No depositions had been taken. Shtofman,
an experienced civil litigator, dedicated all his attention to the
partnership case to the detriment of other cases, traveling back
and forth from his home office in Encino to Riverside. He worked
with other lawyers who also reduced their usual hourly rates.
He kept detailed records of the time he spent on the case and
testified the time was reasonable and necessary. Shtofman’s
efforts were successful. Not only did the jury award Ivoko a
seven-figure verdict, including $400,000 in punitive damages,
she also gained control over the partnership after a bench trial.
Substantial evidence supports the jury’s award of attorney fees
to Shtofman.5
4. The failure to give special jury instructions is waived
Ivoko argues the trial court erred to her prejudice when
it did not give her 16 proposed special jury instructions. After
the close of evidence, the court heard argument on the special
5 In her reply brief, Ivoko argues there was no substantial
evidence to support the fee award because “none of the nine
factors in [Fergus v. Songer (2007) 150 Cal.App.4th 552] were
ever discussed and considered by the jury.” But it was Shtofman
who proposed giving an instruction based on that case, and Ivoko
opposed the instruction because the case involved a contingency
fee. The trial court eventually gave (over Shtofman’s objection)
an instruction approved by Ivoko’s counsel and based on Ketchum
v. Moses (2001) 24 Cal.4th 1122. The instruction read: “The
most widely accepted approach for determining a ‘reasonable’ fee
award is the ‘lodestar’ method. The lodestar figure is calculated
using the reasonable rate, multiplied by the reasonable number
of hours spent on the case. [¶] In this case, the reasonable hourly
rate may not exceed $250.00 per hour.”
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instructions. The court declined to give the instructions, finding
most of them argumentative. But Ivoko makes no argument and
cites no authority why the court should have given each of her
proposed instructions, except to say her defense and evidence
supported the instructions, and therefore the failure to give them
was prejudicial. An appellant “ ‘ “asserting trial court error
may not . . . rest on the bare assertion of error but must present
argument and legal authority on each point raised.” ’ ” (Hoffman
v. Young (2020) 56 Cal.App.5th 1021, 1029.) Ivoko does not
present reasoned arguments and citations to authority, so we
treat the issue as waived. (Ibid.)
5. Admission of exhibits to the SAC was proper
Ivoko argues the trial court erred when it admitted
Shtofman’s exhibits 1 to 125. Shtofman’s counsel moved to admit
the exhibits, and Ivoko’s counsel objected to all of them as not
produced in discovery. The court admitted exhibits 5 (Shtofman’s
work ledger) and 6 (Shtofman’s cost ledger), finding a proper
foundation had been laid and the exhibits were attached to
the SAC. The court then proceeded to rule on the remaining
exhibits, excluding some and admitting the bulk as court files.
Ivoko makes no argument regarding individual exhibits
except exhibits 5 and 6, and we address only those exhibits.
Shtofman’s ledgers of his work and his costs were relevant
(Evid. Code, §§ 210, 350) to his quantum meruit claim. The
court may take judicial notice of court records. (Oh v. Teacher’s
Ins. & Annuity Assn. of America (2020) 53 Cal.App.5th 71, 81.)
The court did not take judicial notice of the truth asserted in
the documents. (Ibid.) It was not an abuse of discretion to
allow the exhibits.
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6. Monetary sanctions were not an abuse of discretion
Ivoko argues it was an abuse of discretion to grant
monetary sanctions jointly against Ivoko and Omoko.
On September 5, 2017, Shtofman moved for monetary,
issue, and/or terminating sanctions, or in the alternative for the
appointment of a discovery referee. The motion detailed Ivoko’s
failure to comply with a court order in August 2016 to appear for
her deposition and provide requested discovery within 30 days,
and her failure to appear for a second noticed deposition on
June 5, 2017. When she did appear for deposition on June 27,
2017, her counsel Omoko constantly interrupted, interfered
with the deposition, and insulted Shtofman as he attempted to
examine Ivoko, who gave evasive and incomplete responses, and
did not produce requested documents. On September 27, 2017,
the court agreed that Omoko repeatedly interrupted and
interfered with the deposition, raised meritless objections,
and instructed Ivoko not to respond to questioning, and Ivoko
failed to produce requested documents. “While this is certainly
sanctionable conduct, it does not rise to the level of issue or
terminating sanctions.” The court imposed a total of $8,014.45
in monetary sanctions jointly and severally against Ivoko and
Omoko and appointed a discovery referee.
Section 2025.450 authorizes the trial court to impose
monetary, issue, or terminating sanctions if a party deponent
such as Ivoko does not appear for her deposition, does not proceed
with the deposition, or fails to produce documents. “In choosing
among its various options for imposing a discovery sanction,
a trial court exercises discretion, subject to reversal only for
manifest abuse exceeding the bounds of reason.” (Kuhns v.
State of California (1992) 8 Cal.App.4th 982, 988.)
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Shtofman provided numerous examples of Omoko’s
obstructive conduct, his verbal attacks on Shtofman and his
counsel, and Ivoko’s evasive responses about when she was out
of the country, about her original passport (the copy she produced
was illegible), and about her petition for arbitration. Shtofman
detailed his requests for production at the deposition and Ivoko’s
failure to comply. The court did not abuse its discretion when
it chose to impose the lesser option of monetary sanctions.
7. Issue sanctions were not an abuse of discretion
Ivoko argues the later issue sanctions barring the statute
of limitations defense were also an abuse of the court’s discretion.
On March 20, 2018, after hearing from counsel, the trial
court granted Shtofman’s ex parte application to compel, ordering
Ivoko to appear for the resumption of her deposition and to
produce documents on April 18, 2018, with Shtofman to give
notice. Ivoko did not appear for her deposition on April 18.
The trial court held a full evidentiary hearing on issue
and terminating sanctions on May 4, during which Shtofman
presented testimony Omoko had been personally served with
the notice of deposition. The court issued its order on May 7,
detailing the disputes around the service of the notice (which we
need not detail here) and Omoko’s failure to respond to emails
from Shtofman and the discovery referee the day before the
scheduled deposition. The court ordered Ivoko’s deposition
within 45 days, and ordered Omoko and Ivoko to pay jointly
for all expenses associated with the April 18 deposition. But
the court concluded Shtofman and Omoko “share fault in Ivoko’s
deposition not going forward on April 18, 2018,” and denied
the request for issue or terminating sanctions.
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Shtofman moved for reconsideration, arguing Ivoko’s
discovery misconduct was persistent and flagrant. Three times,
she failed to appear for her deposition and failed to produce
documents. Twice, she failed to appear for a court-ordered
deposition and failed to produce documents as ordered. Counsel
Omoko was present when the court ordered Ivoko to appear
for her deposition on April 18, so whether Shtofman served the
notice of deposition nine or 10 days in advance was immaterial.
It was an abuse of discretion not to order terminating or issue
sanctions. Omoko filed an opposition and asked for monetary
sanctions against Shtofman.
In a detailed order on August 1, 2018, the trial court agreed
with Shtofman that issue sanctions were warranted. Ivoko spent
two years avoiding her deposition, preventing Shtofman from
discovering evidence about her statute of limitations defense.
“Ivoko and counsel Omoko have abused the discovery process,
and monetary sanctions have failed to deter their behavior.
However, the court feels that terminating sanctions would be
unduly harsh, especially since much of the abuse was the result
of counsel Omoko’s actions. The court, however, finds that
evidentiary and/or issue sanctions are warranted, and as such,
Ivoko will be barred from presenting any evidence concerning
her statute of limitation defense.”
On appeal, Ivoko repeats her argument in opposition that
Shtofman did not comply with section 1008’s requirements for a
motion for reconsideration. But the court also stated: “Assuming
for argument sake that plaintiff’s motion to reconsider is filed
in violation of [section 1008], the court has inherent power
to correct its own errors when they are called to the court’s
attention.” The trial court had the power to correct its prior
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interim order, with proper briefing by the parties. (See
Montegani v. Johnson (2008) 162 Cal.App.4th 1231, 1238.)
Ivoko’s statute of limitations defense depended on
information about her travel out of California that was uniquely
in her possession. Because Ivoko refused to produce necessary
documents and to cooperate when she appeared for her
depositions, Shtofman could not ascertain whether her absences
tolled the two-year period sufficiently to make his lawsuit timely.
She prevented Shtofman from conducting discovery about this
threshold issue, and it was not an abuse of discretion to prevent
her from asserting the defense at trial. (Karlsson v. Ford Motor
Co. (2006) 140 Cal.App.4th 1202, 1218-1219.)
8. The interest calculations were proper
Ivoko’s final argument is that the court erred in its interest
calculations on the judgment from five orders against her for
discovery sanctions. The judgment was filed and signed by the
court on April 27, 2018, and calculated interest from the date of
the initial date of each of the five discovery sanctions orders until
April 25, 2018. Thereafter, interest was to be calculated daily.
Ivoko filed a “Disapproval and Opposition” on May 21, 2018,
arguing Shtofman was not entitled to any interest before
the court signed the judgment. On May 22, the court declined
to change the order, because a discovery sanction order is
enforceable in the same way as a money judgment. The court
distinguished Hyundai Motor America v. Superior Court (2015)
235 Cal.App.4th 418, cited by Ivoko, because that case did not
involve a discovery sanction order.
On appeal, we also reject this argument. Monetary
sanctions orders have the force and effect of a money judgment,
and are immediately enforceable through execution unless
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the court orders a stay. (Newland v. Superior Court (1995)
40 Cal.App.4th 608, 615.) Ivoko again cites Hyundai for the
proposition that a money award does not accrue postjudgment
interest until a final judgment is entered, but that case did
not involve an award of monetary sanctions.
DISPOSITION
The orders and the judgment are affirmed. Costs are
awarded to Robert Scott Shtofman.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
SALTER J.*
*
Judge of the Orange County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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