Gotta Get Attorney’s Lien Adjudicated Against Client First.
Mojtahedi v. Vargas, Case No. B248551 (2d Dist., Div. 3 July 9, 2014) (unpublished) is a stark reminder that a discharged attorney in a case seeking to recoup settlement funds against a client cannot just sue the second attorney directly without passing “go”—with “go” being in this case an action to adjudicate a contractual attorney’s lien against the client in the first instance.
What happened here is that first attorney, later discharged, filed an action against second attorney alleging various torts (mainly) for failing to pay his claimed fees out of personal injury settlement. The lower court sustained a demurrer without leave, which prompted first attorney to appeal.
The appeal was unsuccessful. The reason was that first attorney never prosecuted a separate action against client to establish his attorney’s lien entitlement to fees. Given that this was the case, he did not have “ripened” damages for a tort claim against the second attorney. Here are the cases relied on by the appellate court in getting to this result, essentially saying the attorney’s lien against client has to be adjudicated first: Brown v. Superior Court, 116 Cal.App.4th 320, 328 (2004); Curtis v. Estate of Fagan, 82 Cal.App.4th 270, 278 (2000); Valenta v. Regents of University of California, 231 Cal.App.3d 1465, 1470 (1991); Hansen v. Jacobsen, 186 Cal.App.3d 350, 356 (1986); Bandy v. Mt. Diablo Unified Sch. Dist., 56 Cal.App.3d 230, 234 (1976); Hendricks v. Superior Court, 197 Cal.App.2d 586, 588-589 (1961).