Attorney Was Not A Party To The Judgment Collection Settlement Agreement And Defenses Asserted In An Answer Do Not Provide A Tort Of Another Damages Predicate; Appellate Sanctions Request Denied.
Bush v. Cardinale, Case No. A159689 (1st Dist., Div. 4 Aug. 13, 2021) (unpublished) was a situation where a judgment creditor reaching judgments against and an agreement with certain judgment debtors, but then had to defend judgment creditor’s former attorney’s suit requesting a certain percentage of proceeds from the judgment creditor-judgment debtors’ settlement based on a separate contingency agreement among judgment creditor, attorney, and another attorney. Attorney was not a party to the settlement agreement, and judgment creditor only alleged defenses in attorney’s action as a potential setoff. Former attorney lost in her action, with no damages awarded to anyone. However, judgment creditor requested attorney’s fees against former attorney based on the post-judgment enforcement statutes (CCP § 685.040), on the tort of another doctrine, and on a contractual fee provision under the settlement agreement. The trial judge denied the fee requests.
The 1/4 DCA affirmed. The appellate court concluded former attorney’s action was too attenuated to be an “enforcement” action relating to the earlier judgments against judgment debtors, given that former attorney’s lawsuit did not challenge the prior judgments and did not challenge the settlement agreement, but only sought to enforce rights under a separate contingency fee agreement. The “tort of another” doctrine did not succeed because judgment creditor did not allege any affirmative claims against former attorney (just answering) such that there were no damages which could be pled and proven under the doctrine. Finally, the contingency fee agreement had no fees clause, with nothing in the settlement agreement indicating that former attorney was a party or third beneficiary to the settlement agreement.
Former attorney filed a frivolous appeal motion, but that request was denied because the case was convoluted and there was enough plausibility to some arguments given the uniqueness of the case circumstances.