No Jurisdiction Was Lost, Appellate Court Ruled in Examining Numerous Procedural Issues.
An attorney representing a disabled minor in a minor’s compromise obtained a $395,000 mediated settlement after a positive jury verdict, with the lower court awarding $158,000 in fees (40% of the minor’s gross recovery). However, to the dismay of plaintiff’s attorney, different lower courts (after some jurist challenges) reduced the fee to $99,416.67, the amount due under MICRA caps. (Significantly, as we discuss later, the contingency fee agreement stated if the case was resolved by settlement or judgment, attorney would be entitled to MICRA fees.)
The 4/2 DCA affirmed the reduced fee order in Marquez v. County of Riverside, Case No. E057369 (4th Dist., Div. 2 Sept. 15, 2014) (unpublished), upon appeal by attorney as an objector.
The first issue was jurisdictional: did the ultimate lower court reducing the fees have jurisdiction to do so? The answer depended upon whether the reduced fee order was based on a clerical error (a good basis to reduce) or judicial error (a basis not supporting a reduction). The appellate court concluded that the MICRA cap was overlooked by inadvertence by the judge awarding the higher amount, so clerical error happened to be what was involved.
After some other procedural issues rejected by the reviewing court, that left attorney with arguing that the MICRA caps are unconstitutional or that MICRA caps do not control minor’s compromise awards. The MICRA unconstitutionality argument was long ago decided against attorney, with the appellate court determining nothing had changed to dissuade it from giving stare decisis impact to Roa v. Lodi Medical Group, Inc., 37 Cal.3d 920, 923 (1985). The real interesting argument by attorney was that MICRA caps do not control under the Second District’s decision in Gonzalez v. Chen, 197 Cal.App.4th 881, 885 (2011). The appellate court construed Gonzalez “as indicating that the trial judge must not assume the maximum amount of attorney fees permissible under MICRA constitutes reasonable fees. Rather, the trial court is required to determine whether, within the limitations of MICRA, the requested fees are reasonable under [CRC] rule 7.955.” (Slip Opn., pp. 21-22.) Based on this construction, the fee reduction was deemed reasonable.
BLOG OBSERVATION—Co-contributor Mike was at the oral argument on Gonzalez, although on a different case on the argument calendar. He does not necessarily agree with the appellate court’s interpretation of Gonzalez, which he believes essentially held that MICRA caps are not necessarily governing in the minor’s compromise area. However, the Marquez court seemed to be influenced by the plaintiff’s attorney’s retainer agreement limiting recovery to MICRA caps anyway—an independent reason likely supporting the result in this one.
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