Civil Rights: Where Qui Tam Plaintiff And Defendant Settle The Action With Each Side Bearing Their Own Fees, Quin Tam Plaintiff’s Counsel Cannot Bring Subsequent Action For Statutory Fees Under Government Code Section 12652

Action Was Dismissed, With Options For Counsel Being To Intervene In The Qui Tam Action Or To Provide For A Fee Recovery Preservation In The Settlement.

            In Berney Law Corp. v. ClubCorp Porter Valley Country Club, Inc., Case No. B313888 (2d Dist., Div. 7 May 18, 2023) (unpublished), the trial and appellate courts faced this issue:  If a qui tam plaintiff and defendant settle their action, agreeing to bear their own attorney’s fees, and the matter is dismissed with prejudice, may the plaintiff’s counsel, a non-party to the action and not a signatory to the settlement agreement, bring a subsequent action against the settling defendant for statutory fees under Government Code section 12652(g)(8)?  The lower court said no, and the appellate court agreed.  The 2/7 DCA did suggest that the attorney might have options, such as intervening in the action before it was settled or making sure the settlement agreement preserves the ability to pursue fees at a subsequent point in time.