Liens For Attorney Fees: Attorney Who Recorded Three Separate Notices Of Judgment Lien Totaling More Than $4.3 Million Against Her Client Properly Ordered To Pay Client’s Attorney Fees Incurred In Having Notices Stricken

Attorney Claimed She Was Judgment Creditor And Client Was Judgment Debtor, But She Had Never Sued Nor Obtained A Judgment Against Client.

            Sargent v. Board of Trustees of CSU, Case No. A157335 (1^st Dist., Div. 1 May 26, 2020) (unpublished), provides a great example of how not to create and enforce liens for attorney fees.

            Plaintiff hired attorney to represent him in a retaliation action against his employer.  Approximately seven months later, another attorney joined as co-counsel.  Following trial, a jury returned a verdict awarding damages to plaintiff, and plaintiff was also awarded attorney fees and costs.  Defendant employer’s appeal of those awards is pending.

            Meanwhile, plaintiff’s original attorney served plaintiff – through his co-counsel – with three separate notices of lien and recorded the lien notices with the county Recorder’s Office.  One notice for $387,895 was based on the judgment plaintiff obtained against his former employer.  The other two notices were in the amounts of $95,898.18 based on the costs award, and $3,905,165.04 based on the attorney fees award plaintiff received.  Although attorney had never sued nor obtained a judgment against plaintiff, each notice of lien identified the attorney as the judgment creditor and plaintiff as the judgment debtor.

            After attorney failed to respond to plaintiff’s demand that she release her lien notices, plaintiff successfully moved to strike the lien notices and release the property subject to the notices.  Additionally, plaintiff requested sanctions under Code Civ. Proc. § 697.660(d) (fees authorized in connection with seeking release of a lien), and §§ 128.5 and 128.7 – with the trial court awarding a total of $16,650 in fees for the two firms representing plaintiff in striking the lien notices. 

            On appeal, attorney argued that her notices of lien should not have been stricken because she had only created liens and had not tried to enforce them, and that the trial court lacked the authority to award attorney fees against her.  The 1/1 DCA disagreed.  The lien notices were invalid and properly struck by the trial court as attorney had not followed proper procedure to claim a lien.  As to the attorney fees award, the 1/1 DCA found that although the trial court’s order did not cite legal authority for the award, the award was authorized under Code Civ. Proc. § 128.5(b)(2) based on attorney’s frivolous actions of recording unenforceable, improper lien notices.  Plaintiff’s moving papers had properly requested fees and identified section 128.5 as authority – thus providing attorney with an opportunity to oppose, and the trial court the authority to award the fees.