Wednesday, August 20, 2008
Attorney Entitled to Fees in Dispute Over Subcontracted Legal Work—C.A.
By STEVEN M. ELLIS, Staff Writer
A trial court should have awarded attorneys fees based on an anti-SLAPP motion in a fight between one attorney and another with whom he subcontracted to handle referrals from legal-services-advertising personal injury attorney Larry H. Parker, the Fourth District Court of Appeal ruled yesterday.
Reversing and remanding to determine a reasonable amount, Div. Three held in an unpublished opinion that Irvine attorney William A. Kent was entitled to fees after Calabasas attorney William A. Sobel—from whom Kent accepted Parker’s referrals—withdrew his complaint accusing a former client subsequently represented by Kent of malicious prosecution in the face of Kent’s anti-SLAPP motion.
Parker, whose law offices serve California and Arizona, has advertised his legal services in television commercials for years, advising viewers that he “will fight for you,” and not charge a fee without a recovery.
However, as noted by Presiding Justice David G. Sills, “viewers who see Larry Parker commercials and then call the phone number will not always end up having Parker personally fight for them.” Instead, Parker refers some cases to other attorneys, including Sobel.
Sobel subcontracted some of this work to Kent—“or at least he used to before this lawsuit,” Sills remarked—under an agreement to pay 25 percent of any fees generated from litigation involving clients originating from Parker, and 50 percent of any fees from clients originating directly from Sobel.
When Kent sued Sobel, accusing him of misrepresenting the origins of some of the cases, Sobel retaliated by filing a cross-complaint for malicious prosecution against Kent and John Akers—a former client in a slip and fall case who had retained Kent on Sobel’s referral after expressing dissatisfaction with Sobel’s performance—based on a small claims legal malpractice claim Akers had brought.
Sobel later dismissed the complaint unilaterally after Kent moved to dismiss under California law prohibiting strategic lawsuits against public participation.
Kent sought $2,250 in fees under Code of Civil Procedure Sec. 425.16(c), but Orange Superior Court Judge Derek W. Hunt denied the request, noting that there was no indication Akers had been billed for the successful motion.
On appeal, Sills rejected Hunt’s conclusion that Akers had not incurred any attorney fees to “recover,” and that Kent himself would have no claim to fees for his own part in the case because an attorney representing himself does not incur fees.
“[T]he fact that Akers incurred no fees to Kent for making the anti-SLAPP motion does not obviate an entitlement to fees that the statute would otherwise confer on Akers,” he said.
Sills also concluded that Akers was a prevailing party under the anti-SLAPP statute, even though Sobel had withdrawn his cross-complaint, because the trial court could not reasonably have found to the contrary.
Noting that “[n]o malicious prosecution action can be founded on an underlying small claims case,” he wrote that the anti-SLAPP motion had been “a predestined winner.”
Justices William F. Rylaarsdam and William W. Bedsworth joined Sills in his opinion.
The case is Sobel v. Kent, G040172.
Copyright 2008, Metropolitan News Company