Trial Judge Did Not Resolve Attorney’s Lien Claim Brought by Estate of Another Deceased Plaintiffs’ Attorneys, So No Prejudice.
Marcisz v. Ultrastar Cinemas, Case No. D063902 (4th Dist., Div. 1 Aug. 29, 2014) (unpublished) involved two sets of FEHA attorneys moving to recover fees after successfully prosecuting a sexual harassment for four plaintiffs. The lawyers then moved to recoup fees, and that is where the in-fighting began.
One set of attorneys moved for fees, while the estate of another plaintiff’s attorney also moved to recoup fees—this latter attorney had been suspended from the practice of law and had died from cardiac arrest (some of you may have litigated against him, Mr. Kay). The first group of attorneys obtained a fee award, and Mr. Kay’s estate moved to have an attorney’s lien honored against the recovery. The lower court dodged having to make a ruling on the lien issue, entering a nunc pro tunc later order saying defendant should pay the first group of attorneys directly and indicating the court was not deciding any contractual fee entitlement between the two attorney sides. Later, Mr. Kay’s fee request was granted, and his estate apparently filed a San Francisco lawsuit challenging that the first group of attorneys deprived his estate of proper fee divisions.
The appellate court found the nunc pro tunc order no abuse of discretion; after all, the San Francisco litigation was pending and the lower court did not decide any contractual issues among the lawyers to Mr. Kay’s estate’s prejudice.