David Allen etc. v. Gentry CA1/5

Filed 10/15/21 David Allen etc. v. Gentry CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

DAVID ALLEN, A PROFESSIONAL LAW CORPORATION, d.b.a. DAVID ALLEN & ASSOCIATES, A160180 Plaintiff and Appellant, (Solano County Super. Ct. v. No. FCS050830) KELSA GENTRY et al., Defendants and Respondents.

Plaintiff and appellant David Allen (“appellant”) appeals from the trial court’s grant of summary judgment in favor of defendants and respondents Kelsa Gentry (“Gentry”) and the Veen Firm (“Veen”). We affirm. Gentry was seriously injured in a November 2013 car accident that left her confined to a wheelchair. It is undisputed that the driver who caused the accident was an attorney employed by Bradford & Barthel, LLP (“Bradford & Barthel”) and that he was driving to a court appearance at the time of the accident. After the accident, Gentry’s mother retained appellant to represent Gentry in seeking compensation for Gentry’s injuries. Gentry’s mother signed a “Personal Injury Retainer Agreement” prepared by appellant (the “Retainer”). Subsequently, Gentry signed the Retainer.

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Appellant determined that the driver was covered by a $100,000 insurance policy and that his employer Bradford & Barthel was covered by a $5 million policy. Appellant and the attorney retained by the law firm’s insurer both believed the insurance company would be willing to settle for the $5 million policy limit, but appellant made no such demand on behalf of Gentry, and the insurance company never actually made that offer. Gentry told appellant that a settlement at the policy limit was unacceptable. The Retainer contained a provision stating, “I agree this Agreement may be terminated by either Attorney or me. In the event of termination I realize I will be responsible for the expenses incurred and for the value of the services provided. I agree the services will be valued at $275 per hour for attorneys, $150 per hour for legal assistants and paralegals and $50 per hour for all other persons who work on my case.” Neither Gentry nor her mother were told that appellant would seek a different measure of fees if Gentry terminated the Retainer. In May 2014, Gentry terminated the Retainer and retained Veen to prosecute her claim. Veen filed suit on behalf of Gentry against the driver and Bradford & Barthel in June 2014. In March 2017, the case settled for $6.1 million. Appellant’s accounting showed it was entitled to $74,350 if fees were calculated under the termination provision of the Retainer. Nevertheless, appellant filed an action against Gentry and Veen seeking a greater fee award based on an allegation that Bradford & Barthel’s insurer “was prepared to tender the [$5,000,000.00] policy” before Gentry terminated the Retainer. Appellant’s January 2018 First Amended Complaint asserted causes of action for declaratory relief, quantum meruit recovery, and foreclosure of an attorney fees lien. The quantum meruit cause of action stated, “[Appellant]