Appellate Court Not Bound By MICRA “Caps” and Remanded, With a Reminder That Courts Will Protect Minors.
Here is an interesting decision in a minor’s compromise fee dispute brought by the minor’s attorney claiming that he should be awarded more fees.
In a thoughtful decision by Presiding Justice Mallano on behalf of the Second District, Division 1, the fee award was reversed in Gonzalez v. Chen, Case No. B227444 (2d Dist., Div. 1 July 21, 2011) (certified for publication), but with a good reminder to all practitioners that appellate (as well as trial) courts do believe they have a duty to protect minors in these types of disputes.
Minor’s attorney basically appealed a fee award in a minor’s compromise settlement in a medical malpractice action. The settlement was for $200,000, involving a 2 (or younger) minor that had a shoulder injury that was going to be chronic in nature. Attorney apparently was mad because he was only awarded $50,000 in fees rather than $61,666 in fees. Attorney wanted the full contingency amount owed under his agreement and MICRA, while the trial court applied a local court rule allowing 25% of the settlement recovery ($50,000 rather than the $61,666 contingency recovery).
The appellate court did reverse and remand because CRC 7.955(d) mandated a more nuanced “reasonable fee” approach, gauging numerous factors rather than a formulaic 25% approach. However, Justice Mallano and his colleagues rejected the MICRA argument, determining it put a cap on fees but did not contain any guarantee to the successful contingency attorney.
The appellate court did indicate that because fees in minor compromise cases come out of the minor’s recovery, courts must be especially vigilant to look out for the minor. It was concerned that there was a conflict of interest here, because the attorney wanting more fees may not having explained the appeal to the minor’s guardian before the appeal was undertaken by the attorney.
Although no outcome was presaged, the matter was remanded to apply the CRC 7.955 factors--although we would surmise that the conflict issue and judicial watchdog concerns might an interesting remand make.
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