Korff v. Goodrich CA1/2

Filed 10/27/21 Korff v. Goodrich CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

NANCY KORFF,
Petitioner and Respondent,
A160917
v.
DONNA GOODRICH, (Solano County Super. Ct.
No. FPR046395)
Appellant.

Appellant Donna Goodrich and respondent Nancy Korff settled a will
contest filed by Goodrich, the daughter of the decedent David Bentley, under
which Goodrich and Korff would receive assets of roughly equivalent value.
The settlement agreement had an attorney fee provision. Korff thereafter
took positions inconsistent with the settlement, positions resolved against her
by rulings of the probate court. Korff separately appealed three of those
rulings. We consolidated the appeals, and in an unpublished opinion
affirmed the rulings, easily rejecting Korff’s arguments. Indeed, we granted
Goodrich’s motion for sanctions, and awarded sanctions against Korff and her
attorney, jointly and severally, for taking a frivolous appeal, awarding a total
on $91,084—$49,875 of which was for the work of her attorney Gerald
Clausen, the amount, he testified, required to defend against the appeals.

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 Following remand, based on the settlement agreement, Goodrich
sought in probate court over $103,000 in additional fees for the work of
Clausen on the appeals, seeking a significantly higher hourly rate than that
sought in the sanctions motion and claiming substantially more hours spent.
Following two rounds of briefing and a lengthy hearing, the trial court filed a
comprehensive and thoughtful twelve-page order denying the additional fees,
concluding in part that the “equities are against Goodrich.” We affirm.
BACKGROUND
As noted, we had an earlier appeal in this matter, in connection with
which we filed a 47-page unpublished opinion that contained an exhaustive
discussion of the background of this dispute, most of which is not relevant to
the issue here. But some of it is, to set the scene for this appeal, and we
quote from the opinion as appropriate, taking judicial notice of it on our own
motion. (Evid. Code, §§ 452, 459.) Thus:
“David Bentley died on January 23, 2014, leaving an estate whose
primary assets included a house on Beelard Drive in Vacaville (Beelard Drive
house), 12 vehicles, over $387,000 in eight separate financial accounts, and a
$17,000 promissory note that was in arrears, for a total estate of just over
$700,000. A month after Bentley’s death, Nancy Korff, Bentley’s caregiver,
filed a petition to probate his will—a holographic will he executed two
months before his death that named Korff as the sole beneficiary. The next
month, Donna Goodrich, Bentley’s daughter, filed a will contest and objection
to probate of the will, alleging undue influence, duress, fraud, and mistake.
Korff denied the allegations and contended the will accurately reflected
Bentley’s intent to disinherit his daughter.

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 “Because Goodrich also objected to Korff administering Bentley’s
estate, in August 2014, the probate court appointed respondent Thomas
Kiernan as an independent administrator.
“As was seemingly insignificant at the time but would become an issue
two and a half years later, on October 22, 2014, counsel for Goodrich emailed
counsel for Kiernan inquiring about the status of one of Bentley’s eight
financial accounts. He advised that Goodrich had received a bank statement
indicating that a $73,730.55 check was posted to the account, leaving a
balance of $2.83, and sought confirmation that Kiernan had withdrawn the
funds. Kiernan’s attorney confirmed that Kiernan had posted a check on
Bank of the West (BOTW) account #7367 in the amount indicated. Korff’s
attorney also received the emails. [¶] . . . [¶]
“On March 27, Kiernan filed a partial inventory and appraisal (I&A).
It listed five of Bentley’s eight financial accounts by institution name, account
number, and date-of-death balance. Two months later, Kiernan filed a final
I&A. The final I&A identified Bentley’s three other accounts, including
BOTW account #7367, again by institution name, account number, and date-
of-death balance. The final I&A also listed the Beelard Drive house, valued
at $230,000, and the 12 vehicles. As indicated by the partial and final I&As,
which Goodrich and Korff both received, the balance of Bentley’s financial
accounts on the date of his death was $387,026.92.
“Korff and Goodrich ultimately mediated the will contest, participating
in a third mediation session on January 11, 2016 that resulted in a
settlement. Present at the mediation was mediator Edward J. Corey, Jr.,
Goodrich and her attorneys Edward Nevin and Roger Wintle, and Korff and
her attorney Joseph Canning. Neither Kiernan nor his attorney Betty Homer
was present, although they were available by telephone.

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 “In the hours preceding the settlement, the parties received from
attorney Homer an asset inventory prepared by Kiernan. In addition to the
Beelard Drive house (with a listed value of $230,000), the 12 vehicles, and
miscellaneous household goods, the inventory identified only two bank
accounts, neither of which was one of the eight accounts that existed on the
date of Bentley’s death. Both were BOTW accounts, one a checking account
with a balance of $12,235.37 (#1746), the other a money market fund with a
balance of $344,018.08 (#4398), for a total of $356,253.45 in cash assets.”
Korff and Goodrich memorialized the settlement in a written
“Settlement Agreement and Mutual Release” (settlement agreement) signed
by them and their attorneys. The distributive clause of the settlement
agreement contained three subparagraphs that divided the estate’s assets
between Korff and Goodrich this way: Korff would receive the Beelard Drive
house, 12 specifically identified vehicles and motorcycles, and “remaining
personal property” not specifically to go to Goodrich; Goodrich would receive
eight specifically listed estate accounts, a promissory note (to the extent she
“wishes to receive it”), and “to the extent these items are still in existence,”
four items of personal property.
The settlement agreement also governed the fees for the administration
of Bentley’s estate, providing that fees “shall be paid one-half by [Goodrich]
and one-half by [Korff], except [Korff’s] 50 percent shall not exceed a total of
$20,000. Therefore to the extent that the total statutory fees, extraordinary
fees, and administrator fees exceed $40,000, [Goodrich] shall be responsible
for all fees and costs in excess of this amount.” Finally, as relevant here, the
settlement agreement had this attorney fee provision: “In the event that any
party to this Agreement files any petition or institutes litigation to enforce
the terms of this Agreement, the Parties expressly agree that the prevailing

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party or Parties, in addition to any other relief provided by law, will be
entitled to such reasonable attorneys’ fees and court costs as may be
incurred.”
Various petitions were thereafter filed in the probate court, beginning
with Korff’s petition for preliminary distribution. This generated objections
by Goodrich and a response by Kiernan, ultimately leading to the probate
court ruling that Kiernan provide an accounting. We quote from our opinion
as to what happened next.
“On December 28, Kiernan filed a ‘First and Final Account and Report
of Administrator, and Petition for Approval Thereof and Petition for Final
Distribution, Allowance of Compensation to Administrator and Attorneys for
Statutory and Extraordinary Services’ (petition for final distribution). The
petition informed the court that while Goodrich, who was ‘waiting to receive
the entirety of her distribution under the terms of the settlement agreement,’
waived her right to an accounting, Korff, who had received her distribution
‘in full,’ would not, thereby necessitating the accounting.
“As to the estate assets, Kiernan’s accounting showed that the estate
had assets of $370,980.91, comprised of the promissory note and BOTW
accounts #1746 and #4398. Kiernan requested statutory and extraordinary
fees for him and his attorney in the amount of $62,908.11 and authority to
reserve $10,000 for closing expenses and additional liabilities, which amounts
he proposed deducting from the assets on hand. This would leave a cash
balance of $298,072.80, which he proposed distributing to Goodrich.
“On February 21, 2017, Kiernan’s petition for final distribution came on
for hearing. The court granted his request for statutory compensation for
him and his attorney and extraordinary compensation for him. It denied his
attorney’s request for certain extraordinary fees and continued the request

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for other extraordinary fees to allow counsel an opportunity to provide
additional supporting information. At the hearing, Canning advised that
Korff intended to hire separate counsel to review the accounting and that she
intended to object to it.”
Attorney Thomas Tagliarini entered the picture representing Korff, and
thus began a series of pleadings that we would go on to describe for over
14 pages in our opinion, which description began with this: “On April 14,
Korff, now represented by attorney Thomas Tagliarini, filed a verified
objection, followed by a verified amended objection, to Kiernan’s petition for
final distribution. Her primary objection was to the distribution of the funds
in BOTW accounts #1746 and #4398 to Goodrich. For the first time—
15 months after the settlement—Korff claimed that under the terms of the
settlement agreement, she, not Goodrich, was entitled to the funds in those
accounts. She asserted that the settlement agreement allocated only the
eight original accounts to Goodrich, and since BOTW accounts #1746 and
#4398 were not allocated to Goodrich, they were in fact allocated to her under
the residuary clause in the settlement agreement.” This, we said, was a
“novel theory—a theory, we might add, absolutely contradicted by the
representations both Korff and attorney Canning previously made to the
court.”
What followed were months of pleadings, including declarations from
Korff, and various briefs on her behalf filed by Tagliarini, asserting a position
on behalf of Korff utterly inconsistent with the settlement. The trial court
would describe Korff’s position as “absurd.” We would come to describe it as
“manifestly unreasonable on its face,” going on with this elaboration:
“As the probate court found, Korff’s position is indeed absurd. She asks
us to believe that after three mediation sessions—described by Goodrich’s

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attorney as ‘long, drawn-out mediation sessions that cost a lot of money for
attorneys, mediators’—the parties agreed Goodrich would receive only a long
past due promissory note and whatever remained in the original eight
accounts that she purportedly knew might no longer exist, and she would
additionally be responsible for half of the first $40,000 in estate costs and all
costs beyond that, while Korff on the other hand would receive the Beelard
Drive house, the 12 vehicles, all other tangible personal property save a
print, a portrait, and costume jewelry, and the cash accounts valued at over
$350,000. In other words, Korff would receive virtually the entire estate,
while Goodrich would essentially receive nothing other than a few tangible
items and would be liable for tens of thousands of dollars in costs. This
interpretation is nothing short of preposterous.”
In any event, following months of pleadings, the court heard various
issues on November 15, 2018, where, among other things, the court denied
Korff’s objections to distribution of the cash assets to Goodrich, giving a
15-paragraph explanation of why. Korff, represented by Tagliarini, filed her
first appeal, and within months, two other appeals. We ordered the appeals
consolidated, and on October 2, 2019, filed our unpublished opinion affirming
all three rulings.
The Motion for Sanctions
In connection with the appeals, Goodrich filed a motion for sanctions
against Korff and her attorney Tagliarini, a motion we described in our
opinion as follows: “On May 23, 2019, Goodrich filed a motion seeking
sanctions against Korff and her attorney, Thomas Tagliarini, for their filing
and pursuit of the appeals. The motion asserted that the second and third
appeals are frivolous ‘in their entirety,’ and that all the issues raised in the
first appeal are frivolous ‘with the possible exception of the issue concerning

7
the appropriate distribution of certain refunds.’ Because, as noted, Korff’s
liability for Kiernan’s fees are capped at $20,000, Goodrich requests sanctions
sufficient to reimburse both her and Kiernan for attorney fees and costs
incurred in defending against the appeals, specifically, $49,875 for herself,
which includes fees incurred in preparing the respondent’s brief and the
motion for sanctions, and $41,209 for Kiernan. The motion is supported by
declarations of Goodrich’s attorney Gerald Clausen and the estate’s attorney
Betty Homer, both of whom testified in detail regarding the fees incurred.”
The specific reference in the sanctions motion pertaining to the work by
Clausen made the following representations: “The attorney fees on appeal
incurred by Ms. Goodrich (including the fees to date for this motion for
sanctions) are shown in Tables 1 and 2. (See Clausen Dec. ¶ 6.)” Table 1
represented that Clausen spent 110 hours on the appeal and Table 2 that he
spent 32.5 hours on the motion for sanctions. And in the referenced
paragraph in the declaration, Clausen testified as follows: “Tables 1 and 2
accurately reflect the time I spent on the activities specified in those tables.
I calculated the values in Tables 1 and 2 by consulting my time records and
toting up the hours for each category of activity set forth in the tables.”
We agreed with Goodrich, and in a comprehensive eight-page analysis
held that “Korff’s appeal was objectively unreasonable. It was frivolous. And
Korff should be sanctioned for it. So should Tagliarini.” And we concluded as
follows: “As noted, Goodrich’s counsel filed a declaration supporting attorney
fees of $49,875, and the declaration from Kiernan’s counsel supports $41,209
expended on his behalf. Tagliarini’s letter says nothing about the amounts
sought, they are well supported, and it is hard to imagine a greater ‘degree of
objective frivolousness.’ We thus assess sanctions in those amounts, assessed
jointly and severally against Korff and Tagliarini, her attorney. [Citation.]”

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 Goodrich’s New Request for Attorney Fees
Following remand, in January 2020, Goodrich filed in the probate court
a motion for attorney fees. It was accompanied by an eight-page
memorandum of points and authorities, a declaration of attorney Clausen, a
request for judicial notice, and the declaration of expert witness Mark
Thomas. The motion was based of Civil Code section 17171 and sought an
award of “fees for services rendered by her attorneys in connection with
appeals from judgments and orders rendered in this action.” Specifically, the
motion sought fees for the work of three attorneys, Clausen, Nevin, and
Wintle.
As to Clausen, the issue here, the motion asserted a reasonable hourly
rate for his services was $675, and that he “spent a total of 209.4 hours in
defending against the appeal”—numbers, as noted, significantly inflated over
those represented to this court in connection with the sanctions request.
Based on those numbers, plus an additional 18.2 hours in preparing the
motion, the motion sought a total of $103,755 for the work of Clausen:
$153,630 (227.6 hours  $675 an hour) reduced by the $49,875 awarded by us.
Korff’s brief opposition, 11 pages in all, devoted most of its pages to the
circumstances in this court, and concluding in a brief two-page argument that
it was law of the case. Among other things, Korff’s opposition argued that “In
the Court of Appeal Goodrich represented the amount of reasonable fees and
costs she incurred. After the Court of Appeal granted Goodrich’s request for

1 Which provides in pertinent part as follows: “(a) In any action on a
contract, where the contract specifically provides that attorney’s fees and
costs, which are incurred to enforce that contract, shall be awarded either to
one of the parties or to the prevailing party, then the party who is determined
to be the party prevailing on the contract, whether he or she is the party
specified in the contract or not, shall be entitled to reasonable attorney’s fees
in addition to other costs.”

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fees, in the full amount, Goodrich raised no objection and she sought no
modification. The Court of Appeal declined Goodrich’s invitation to establish
an amount of attorney fee [sic] some different amount and it also declined the
invitation to remand a determination of reasonable fees to this court. The
doctrine of the law of the case requires this court to follow the determination
made by the Court of Appeal.”
Korff also argued that Clausen made contradictory claims, claiming in
the court of appeal that $49,875 based on $350 an hour was “reasonable
compensation,” then claiming in the probate court that reasonable
compensation was “actually $199,306.12 based upon a rate of $675 per
hour.”2 And, Korff argued, the administrator’s attorney “did a comparable
amount of work and obtained the exact same result” as Goodrich’s counsel,
was awarded only $41,209 by this court based on an hourly rate of $350, yet
had “not sought additional compensations.”
Following Goodrich’s reply, the motion came on for hearing on
February 28, 2020. One thing that did develop at that hearing is that, as
Goodrich herself describes it, “The parties disputed whether [Goodrich] was
requesting a duplication of fees that had been awarded by the Court of
Appeal. [Counsel for Goodrich] argued there was ‘some duplication of
services,’ but no duplication of fees, because she was seeking ‘the excess fees,
the difference between $675 and $350, on those services that [Goodrich] made
a claim for in the Court of Appeal; and the full $675 on the services that
[Goodrich] did not present to the Court of Appeal.’ ” Counsel for Korff

2 Korff’s reference to the $199,306.12 figure was in error, as this was
the total amount claimed by all three of Goodrich’s attorneys. As noted, the
amount claimed for Clausen was $153,630 before subtraction of the $49,875
and $103,755 after such subtraction and only Clausen claimed an hourly rate
of $675.

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responded that the “same fees” were being requested “but for different
reasons,” and argued that if this were allowed, “they could ask for the same
fees over and over again, depending on if they can come up with different
reasons for it.”
The probate court continued the matter to April 3, and in the interim
allowed the parties to file supplemental briefs. The supplemental briefs were
filed, included among which was Korff’s submission of a declaration of an
appellate specialist who in essence testified that the reasonable rate for the
services of an appellate specialist with comparable experience to Clausen was
$350–$400 an hour.
The probate court vacated the April 3 hearing and took the matter
under submission. And on July 2, the court issued its order, a comprehensive
12-page analysis of the issue that, as pertinent here, denied Goodrich
additional fees sought for the work of Clausen (with the exception of $4,000
awarded for his work on the fee motion to the extent it was successful for the
work of Nevin and Wintle.)
In its introductory paragraph, the court distilled the issue before it, as
follows: “In its decision, the Court of Appeal found that Korff’s appeals were
frivolous and ordered Korff and her attorney to pay $49,875 . . . in sanctions
to Goodrich for attorneys’ fees incurred by her in connection with the appeals.
Goodrich now seeks a further attorneys’ fees award from the trial court. Her
request includes fees for time spent by her appellate attorney . . . Clausen
that was presented in the sanctions motion to the Court of Appeal as well as
time that was not presented to the Court of Appeal. With respect to the
former, attorney Clausen seeks reimbursement at a reasonable, market rate
for attorneys in the community in which he practices and not the $350 . . . per
hour he asked the Court of Appeal to award. He also seeks reimbursement

11
for 209.4 hours of attorney time in connection with the appeal, instead of the
142.5 hours he submitted to the Court of Appeal, and another 18.2 hours to
prepare his current motion. He does concede that Korff should receive a
credit or off-set in the amount of that court’s award against any award made
by this court. [¶] Goodrich’s trial counsel, Edward Nevin and Roger Wintle,
also seek awards of contractual attorneys’ fees from Korff for work they or
their associates performed in connection with Korff’s frivolous appeals.”
Then, after discussion of the record before it, the court first rejected
Korff’s argument based on law of the case. There followed the court’s
thorough analysis, rejecting Goodrich’s claims for the additional fees sought
for Clausen’s work. This was that analysis:
“At the end of the day, this court must decide whether or not Goodrich’s
fees motion is reasonable, in whole or in part, and there are other analogous
doctrines that may apply.
“When determining the reasonableness of a contractual attorneys’ fees
request, the court goes through a multi-step process. A lodestar amount is
calculated based upon the hours found necessary by the court multiplied by a
reasonable market rate as opposed to the actual rate agreed to between the
attorney and his or her client. (Ketchum v. Moses [(2001) 24 Cal.4th] 1122,
1133–1136.) The trial court can then augment or modify the lodestar
depending upon a variety of factors (including the contingent nature of a fee
agreement where the risk of losing is a factor to consider and the attorney’s
level of skill and experience). (Ibid.) As Goodrich points out, that process
results in the total amount of the fees awarded ‘absent special circumstances
rendering the award unjust.’ (Id.)
“With respect to the contractual attorneys’ fees requested by attorney
Clausen, the court finds that such special circumstances exist, and declines to

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award Goodrich any further fees for his services beyond those awarded as
sanctions by the Court of Appeal. There are a number of reasons for this,
including, without limitation the following:
“(1) Before this court, attorney Clausen opines that a reasonable rate
for his services is $675 per hour; he told the Court of Appeal a reasonable
rate was as low as $550 per hour and as high as $700 per hour; among the
207.9 hours he requests payment for are at least 15 hours he spent
unsuccessfully opposing Korff’s motion to consolidate her three appeals
(i.e., Goodrich did not prevail on that issue), and another five hours are
described as ‘draft opposition to motion to compel’ when such a motion
appears to be absent from the appellate record [citation];
“(2) Just like trial courts are normally in a better position to evaluate
the necessity of and the reasonableness of attorneys’ fees incurred before
them, [citation], so are Courts of Appeal in a better position to determine the
necessity and reasonableness of such fees incurred before them. Clearly, the
Court of Appeal thought that both the hours attorney Clausen submitted and
the $350 hourly rate he claimed on behalf of Goodrich were ‘reasonable.’
“(3) Based upon the arguments at the initial hearing of this motion, it
appears that attorney Clausen was concerned that the Court of Appeal might
find the nature and extent of Goodrich’s total fee request unreasonable if he
submitted the number of hours and his currently requested $675 hourly rate
to it (e.g., experienced attorney Hearst whose declaration [Korff] submitted in
opposition to the current motion, charges $400 per hour for appellate work in
the same market);
“(4) Attorney Clausen describes his representation of Goodrich as being
‘purely on a contingency basis,’ but then goes on to state that he is to receive
$350 per hour ‘up to a specified maximum, if a recovery is obtained and

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additional fees if attorneys’ fees are recovered.’ (Par. 15, Clausen Decl. filed
1/13/2020). How those ‘additional fees’ were to be determined between him
and Goodrich is unknown. Clearly, he didn’t represent her on a purely
contingent basis. Since he didn’t attach his fee agreement with the motion
nor specify the ‘maximum’ he referred to in his declaration, the court is hard-
pressed to determine what real risk, if any, he took on by representing
Goodrich on appeal;
“(5) The equities are against Goodrich on this—she had a willing Court
of Appeal to whom she submitted attorney Clausen’s fees claim that it
actually awarded without reduction, and advances no substantial reason to
this court why that first bite at the reasonableness apple should actually and
reasonably be worthy of a second bite. Indeed, Goodrich’s sanctions motion to
the Court of Appeal asked it to award attorneys’ fees sanctions of $49,875 ‘or
in the alternative . . . remand the matter to the trial court to determine the
reasonable value of the fees and expenses incurred. . . .’ [Citation.] The
Court of Appeal chose not to remand the fee request, but instead granted it,
thereby determining that the amount it awarded represented the reasonable
value of the attorney Clausen’s fees and costs incurred by Goodrich on
appeal.
“Based on the foregoing, the court holds that Goodrich is judicially and
equitably estopped from seeking additional fees for attorney Clausen’s work
opposing the appeal. Judicial estoppel precludes a party from gaining an
advantage by taking one position, and then seeking a second advantage by
taking an incompatible position.”
In addition, the court noted that, while the time records of attorneys
Nevin and Wintle were not submitted to this court, “[a]mong other issues,
their time combined with Mr. Clausen’s time raise the issue of whether or not

14
the efforts of three experienced attorneys, and at least one associate, were
reasonably necessary to oppose three frivolous appeals.”
Following more analysis, the court went on to award fees for the work
of Nevin and Wintle (and his associate), though in amounts less than
requested, going on to note that “attorney Homer on behalf of administrator
Kiernan obtained comparable results with fewer lawyers and fewer hours.”
Finally, the court awarded $4,000 for the work of Clausen to the extent he
was successful on the fee motion for the work of Nevin and Wintle.3
On August 22, Goodrich appealed that portion of the order denying
most of the fees sought for the work of Clausen.
To bring the story current, Korff’s brief asserts that on April 13, 2021,
after Goodrich’s opening brief on this appeal was filed, Goodrich filed another
pleading seeking an award against Korff. In Korff’s words, Goodrich “filed
yet another motion in the probate court for the imposition of sanctions under
Code of Civil Procedure section 128.5 and section 128.7 against Nancy Korff
and her attorney, Thomas C. Tagliarini, wherein she seeks an additional
sanctions in the amount of $465,023.41. That amount includes additional
attorneys’ fees for her three attorneys, Mr. Nevin, Mr. Wintle, and Mr.
Clausen.” Goodrich’s reply brief acknowledges the filing of this motion, but
asserts that it “did not seek [to] ask the probate court to award additional
attorney fees to Mr. Clausen. Rather it asked the probate [court] to
reimburse to Ms. Goodrich $17,500 she paid to Mr. Clausen in attorney fees.
[Citation.]”

3 These three awards are not involved in this appeal.

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 DISCUSSION
Introduction

Goodrich has filed a 49-page opening brief. Following a short
introduction, the brief has a 22-page (!) description of her motion for attorney
fees. The argument follows, 15-pages in total, consisting of two arguments.
The first, comprising over half of those pages, is that the “law of the case
doctrine does not apply,” an argument that is puzzling, as the court held for
Goodrich on the issue. Goodrich’s second argument is that the “probate
court’s application of judicial and equitable estoppel was erroneous and not
supported by substantial evidence.” The argument is off the mark, as it
ignores the probate court’s detailed analysis described above—not to mention
the law of attorney fees.

The Law of Attorney Fees
Some 44 years ago, in a case affirming the denial of attorney fees
following plaintiff’s voluntary dismissal without prejudice, our Supreme
Court observed that an “award of contractual attorney fees is governed by
equitable principles.” (International Industries, Inc. v. Olen (1978) 21 Cal.3d
218, 224 (Olen), superseded by statute on other grounds as stated in
Santisas v. Goodin (1998) 17 Cal.4th 599, 622.) Twenty-two years later,
citing Olen and other cases, the Supreme Court distilled the law as follows:
“Civil Code section 1717 provides that ‘[r]easonable attorney’s fees shall
be fixed by the court.’ As discussed, this requirement reflects the legislative
purpose ‘to establish uniform treatment of fee recoveries in actions on
contracts containing attorney fee provisions.’ (Santisas v. Goodin, supra,
17 Cal.4th at p. 616.) Consistent with that purpose, the trial court has broad
authority to determine the amount of a reasonable fee. (International
Industries, Inc. v. Olen, supra, 21 Cal.3d at p. 224 [‘[E]quitable considerations

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[under Civil Code section 1717] must prevail over . . . the technical rules of
contractual construction’]; Beverly Hills Properties v. Marcolino (1990)
221 Cal.App.3d Supp. 7, 12 [‘the award of attorney fees under section 1717,
as its purposes indicate, is governed by equitable principles’]; Montgomery v.
Bio-Med Specialties, Inc. (1986) 183 Cal.App.3d 1292, 1297 [trial court has
‘wide latitude in determining the amount of an award of attorney’s fees’
under Civil Code section 1717]; Vella v. Hudgins (1984) 151 Cal.App.3d 515,
522 [‘The amount to be awarded in attorney’s fees is left to the sound
discretion of the trial court’].) As we have explained: ‘The “experienced trial
judge is the best judge of the value of professional services rendered in his
court, and while his judgment is of course subject to review, it will not be
disturbed unless the appellate court is convinced that it is clearly wrong” ’—
meaning that it abused its discretion. (Serrano v. Priest (1977) 20 Cal.3d 25,
49; Fed-Mart Corp. v. Pell Enterprises, Inc. (1980) 111 Cal.App.3d 215, 228
[an appellate court will interfere with a determination of reasonable attorney
fees ‘only where there has been a manifest abuse of discretion’].” (PLCM
Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1094–1095.)
So, if the construction or application of a contractual fee provision could
lead to oppressive results, equitable principles can prevail, illustrated, for
example, by EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 770, 773–775,
where the Court of Appeal held that the trial court properly applied equitable
principles to reduce contractual attorney fee award by 90 percent. As a
leading commentary describes it, “Guided by equitable principles: In
determining a reasonable fee, Civil Code section 1717’s equitable
considerations ‘prevail over . . . the technical rules of contractual
construction.’ (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095;
Hunt v. Fahnestock (1990) 220 Cal.App.3d 628, 633; see EnPalm, LLC v.

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Teitler[, supra,] 162 Cal.App.4th [at pp.] 773–775 . . . .)” (Wegner et al., Cal.
Practice Guide: Civil Trials and Evidence (The Rutter Group 2021) ¶ 17:986.)
We review an order on attorney fees for abuse of discretion. (Calvo
Fisher & Jacob LLP v. Lujan (2015) 234 Cal.App.4th 608, 620.) Abuse of
discretion has been described in terms of a decision that “exceeds the bounds
of reason” (People v. Beames (2007) 40 Cal.4th 907, 920), or one that is
arbitrary, capricious, patently absurd, or even whimsical. (See, e.g., People v.
Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390 [“ ‘ “arbitrary,
capricious, or patently absurd” ’ ”]; People v. Benavides (2005) 35 Cal.4th 69,
88 [ruling “falls ‘outside the bounds of reason’ ”].) In its most recent
observation on the subject, our Supreme Court said that “A ruling that
constitutes an abuse of discretion has been described as one that is ‘so
irrational or arbitrary that no reasonable person could agree with it.’ ”
(Sargon Enterprises, Inc. v. University of Southern California (2012)
55 Cal.4th 747, 773.) This hardly describes the order here.
Goodrich Has Not Demonstrated Error
As quoted above, the trial court described how “special circumstances”
were present here, circumstances that could render an award “unjust.” The
court then said there were a “number of reasons” for those “special
circumstances,” and went on to describe, “without limitation,” five, beginning
with reference to how the motion sought fees for work that was unsuccessful.
It then turned to commenting on what this court thought was reasonable,
both as to the hourly rate and the hours spent. The court then discussed the
fact that Clausen’s fee agreement was not attached to the motion, and that
the court was “hard pressed to determine what real risk if any, [Clausen]
took on by representing Goodrich on appeal.” And perhaps most importantly
of all, the court found that “[t]he equities are against Goodrich on this,” going

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on to note that Goodrich “advances no substantial reason to this court why
that first bite at the reasonableness apple should actually and reasonably be
worthy of a second bite. Indeed, Goodrich’s sanctions motion to the Court of
Appeal asked it to award attorneys’ fees sanctions of $49,875 ‘or in the
alternative . . . remand the matter to the trial court to determine the
reasonable value of the fees and expenses incurred. . . .’ [Citation.] The
Court of Appeal chose not to remand the fee request, but instead granted it,
thereby determining that the amount it awarded represented the reasonable
value of the attorney Clausen’s fees and costs incurred by Goodrich on
appeal.” Finally, the court observed that the hours spent by the three
attorneys, Clausen, Nevin, and Wintle, raised the issue of whether those
hours were “reasonably necessary to oppose three frivolous appeals.”
None of this is mentioned, let alone discussed, in Goodrich’s argument.
Superimposed on the above is the fact that Goodrich’s position on the
motion as to the claimed work of Clausen was significantly inflated in both
relevant aspects—hours claimed and hourly rate—than that represented to
this court. That cannot be overlooked.
Beyond the equitable considerations, courts have vast discretion on the
issue of attorney fees, and can, for example, reduce an attorney fee award—
indeed, refuse one altogether—if the fee request appears unreasonably
inflated. (Meister v. Regents of University of California (1998) 67 Cal.App.4th
437, 448.) Likewise a court may determine that the fee requested is
duplicative or excessive. (Graciano v. Robinson Ford Sales, Inc. (2006)
144 Cal.App.4th 140, 161; Cruz v. Ayromloo (2007) 155 Cal.App.4th 1270,
1278.)
Were all that not enough, Goodrich’s appeal is undercut by the actual
language of the attorney fee provision here, that the “prevailing party . . . will

19
be entitled to such reasonable attorney fees . . . as may be incurred.” There is
no showing here as to what, if any, fees were “incurred.”
San Dieguito Partnership v. San Dieguito River Valley Regional Etc.
Auth. (1998) 61 Cal.App.4th 910, 919 (San Dieguito), disapproved on another
ground in PLCM Group v. Drexler, supra, 22 Cal.4th at p. 1097, fn. 5, is
instructive. There, a partnership unsuccessfully sued a joint powers
authority (JPA) for breach of a settlement agreement. The agreement
contained a provision entitling the prevailing party in any action to enforce
the agreement “ ‘to an award in the amount of attorneys’ fees and costs
incurred in connection with the prosecution or defense of such action.’ ” (Id.
at p. 914.) The trial court awarded the successful JPA a lodestar amount
calculated by multiplying the number of hours spent on the case by “ ‘fair
market hourly rates,’ ” even though counsel actually charged the JPA “ ‘below
market rates’ . . . .” (Id. at p. 915.)
Plaintiff partnership appealed, arguing that under the terms of the
settlement agreement, JPA was entitled to recover only those attorney fees it
actually “incurred,” and the court was without discretion to award a greater
amount. (San Dieguito, at p. 917.) The appellate court agreed and reversed,
holding that “even under section 1717,” where the parties “specifically agree
the prevailing party shall be entitled to an award ‘in the amount of attorneys’
fees and costs incurred,’ the court has no . . . power” to award fees “in an
amount greater than the prevailing party actually incurs . . . .” (Id. at
p. 919.)
We end with the observation that it is true that Korff took positions
inconsistent with the settlement and, having lost, appealed the ruling,
appeals we held to be frivolous. We sanctioned Korff and her attorney for
that, awarding Goodrich everything she sought in this court—based, not

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incidentally, on Clausen’s testimony under oath—in the amount we
determined was reasonable based on what Goodrich put before us. Korff has
now paid Goodrich over $117,000 for the work of lawyers defending against
the frivolous appeals: $49,875 for Clausen, $15,240 for Nevin, $13,437 for
Wintle, and $41,209 for Homer. The trial court determined that was enough.
We agree.
DISPOSITION
The order of July 2, 2020, is affirmed. Korff shall recover her costs on
appeal.

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 _________________________
Richman, J.

We concur:

_________________________
Kline, P. J.

_________________________
Miller, J.

Korff v. Goodrich (A160917)

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