Metropolitan News-Enterprise


Monday, January 9, 2006


Page 1


Court of Appeal Rules:

Attorney/Litigant May Recover Fees for Representing Others


By KENNETH OFGANG, Staff Writer/Appellate Courts


An attorney who is a party to a lawsuit may recover fees from the opposition for successfully representing other parties, the Fourth District Court of Appeal has ruled.

Div. One Friday certified for publication its Dec. 9 opinion affirming San Diego Superior Court Judge Eddie Sturgeon’s order awarding fees to San Diego attorney Julie Hamilton for her successful handling of an anti-SLAPP motion.

The plaintiff, Ramona Unified School District, had argued that Hamilton was not entitled to fees because she was herself a defendant in the lawsuit, which grew out of an earlier suit in which Hamilton represented a Ramona citizens group opposed to school construction plans.

Hamilton’s clients, the Neighborhood Alliance for Safe Ramona Schools and two of its principals, contended that the plan raised significant traffic and access issues requiring full California Environmental Quality Act review. The district, however, found that there were no significant environmental impacts and adopted a mitigated negative declaration under CEQA in 2000.

Changes Made

About two years after the project was approved, the district decided that it would be feasible and cost-effective to link the school to an existing sewer system, rather than put in a septic system as originally planned. An addendum to the mitigated negative declaration was filed.

The neighborhood alliance brought a writ petition challenging the addendum. The district subsequently revised the addendum to include a review of detailed design plans for the project, but continued to insist that there would be no significant unmitigated environmental impacts and that an environmental impact report was thus unnecessary.

The alliance then amended its petition to attack the addendum. The amended petition was dismissed, with leave to amend, on statute of limitations as well as substantive grounds.

The alliance then filed a second amended petition, which made additional allegations regarding traffic, but which was also dismissed.

The alliance later moved for private attorney general fees, asserting that even though relief was denied, the action benefited the public by inducing the district to abandon changes to the plan that would have required CEQA review. That motion was denied.

The district then sued Hamilton and her clients for barratry—defined as having “excited” three groundless legal proceedings against the same party—and abuse of process. The district contended that the petition and the two amended petitions instituted separate proceedings for purposes of the barratry rule and that the continuation of baseless litigation by filing amended pleadings and a fee motion constituted abuse of process.

Two Attorneys

The neighborhood alliance and the two individual defendants retained Hamilton as their defense counsel. In addition, San Diego attorney James Moneer was retained to represent all of the defendants in connection with the anti-SLAPP motion, with Hamilton assisting him as counsel for all defendants other than herself.

Sturgeon ruled in favor of all of the defendants on the anti-SLAPP motion. He held that the district was unlikely to prevail because the underlying lawsuit was a single proceeding, thus defeating the barratry claim, and that the bringing of unfounded amended pleadings or of motions does not give rise to an abuse-of-process claim.

The judge awarded fees under the anti-SLAPP statute, Code of Civil Procedure Sec. 425.16, to Hamilton and Moneer.

The appellate panel, in addition to ruling that the trial judge was correct on the merits, rejected the district’s claim that Trope v. Katz (1995) 11 Cal.4th 274 bars Hamilton from recovering fees.

Trope holds that an attorney who is a party to the litigation cannot recover fees from the opposition for representing himself or herself. But Justice Alex McDonald, writing for the Fourth District panel, said that nothing in that opinion bars an attorney/ party from recovering fees for representing other parties.

Trope, McDonald reasoned, proceeds from the premise that an attorney-client relationship, a prerequisite for recovery under fee-shifting statutes, does not exist when a party is self-represented, even if that party happens to be an attorney.

That is not a problem in this case, McDonald said, citing cases holding that fees may be recovered under the anti-SLAPP statute when the attorney is receiving a contingency fee, is representing the client pro bono, or is obtaining his or fees from a third party rather than the defendant.

“This decisional authority and the plain language of section 425.16, subdivision (c) supports the conclusion that the commonly understood definition of attorney fees applies with equal force to section 425.16 and a prevailing defendant is entitled to recover attorney fees if represented by counsel,” the justice wrote. “Here, the evidence supports the determination that Moneer was representing all defendants in connection with the anti-SLAPP motion, and Hamilton rendered legal services to Moneer’s nonattorney assisting Moneer’s successful defense against RUSD’s suit.  Because an attorney-client relationship existed between the prevailing defendants and Hamilton, Trope does not preclude the award of attorney fees merely because Hamilton was a codefendant with the nonattorney clients to whom she provided legal assistance.”

The case is Ramona Unified School District v. Tsiknas, 06 S.O.S. 77.


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