Declaratory Relief Action Denial Reversed re Class Action Fee Distribution.
In Carder v. Patten, Faith & Sandford, Case No. B221940 (2d Dist., Div. 5 Oct. 12, 2010) (certified for publication), the appellate court reversed judgment entered against a plaintiff class action lawyer in a declaratory relief action he brought against other class action co-counsel having differences over the distribution of awarded attorney’s fees in a successfully concluded class action. Declaratory relief under CCP § 1060 was found to be proper because there was a justiciable controversy over what proportion of fees were due to each set of attorneys and whether defendants were barred by accord and satisfaction after cashing a settlement check sent by plaintiff. The judge hearing the declaratory relief action also found exclusive jurisdiction was with a different superior court blessing the class action fee award, but the earlier ruling did not back that up and continuing jurisdiction rests with the court (rather than a particular superior court)--although the reviewing court noted “it generally makes sense for enforcement matters to return to the judge originally assigned the case” unless there are changed judicial assignments, retirement, or other unavailability.
California State Bar Entitled to Recovery of anti-SLAPP Fees.
The second one, Henschel v. State Bar of California, Case No. B213595 (2d Dist., Div. 7 Oct. 12, 2010) (unpublished), involved an attorney’s challenge to an anti-SLAPP fee award of $7,751 against him and in favor of the State Bar. The primary challenge, outside of rebuffed challenges to the amount of the fee award, was that State Bar was barred under the Witte rule precluding fee recovery to self-represented attorneys. This argument did not prevail, according to the appellate court, because the attorney representing the State Bar is more analogous to an in-house counsel, who can be awarded anti-SLAPP fees. (Musaelian v. Adams, 45 Cal.4th 512, 520 (2009).) The result was that the fee award was affirmed.
Arbitrator Representing Law Firms In Fee Disputes Must Disclose His Practice Background to Client Being Chased for Fees by Law Firm in an Arbitration.
Finally, Benjamin, Weill & Mazer v. Kors, Case No. A125732 (1st Dist., Div. 2 Oct. 12, 2010) (certified for publication) involved a disgruntled client’s challenge of a $102,287.39 contractual arbitration award for claimed delinquent fees owed to a law firm representing client in former expensive, acrimonious civil litigation. The main challenge was that the chief arbitrator failed to disclose that he had represented law firms in challenges by clients to fee awards and had an extensive practice base in this area. The appellate court agreed that this disclosure might be material under the ethical standards that are incorporated into the CCP arbitration disclosure requirements. For our readers who eschew arbitration, there is also an interesting discussion about why disclosure is heightened for arbitrators, given the deference accorded awards and the possible bias arising from an arbitrator’s economic self-interest in deferring to “repeat clients.”