No Fees for Self-Represented Lawyer Under CCP 128.7

Friday, January 16, 2009

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No Fees for Self-Represented Lawyer Under CCP 128.7—S.C.

By KENNETH OFGANG, Staff Writer

An award of monetary sanctions for frivolous litigation tactics under Code of Civil Procedure Sec. 128.5 or 128.7 cannot include an award of attorney fees in favor of an attorney who represented himself or herself, the state Supreme Court ruled yesterday.

Justice Kathryn M. Werdegar, writing for a unanimous court, said that compensation for the time a lawyer spends representing his or her own interests cannot be characterized as “attorney fees,” and that such fees are not “incurred,” within the meaning of the statutes.

Sec. 128.5 authorizes an award of “reasonable expenses, including attorney’s fees, incurred...as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.”

Sec. 128.7 requires, among other things, that parties and attorneys certify that their filings have merit ““to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances.” A party or attorney who files a pleading or paper that no reasonable person would have believed meritorious is subject to sanctions, including “an order directing payment to the movant of some or all of the reasonable attorney’s fees and other expenses incurred as a direct result of the violation.”

Yesterday’s ruling affirms a Court of Appeal decision that vacated a sanctions award against Corte Madera attorney John G. Warner and his client, Mary Musaelian. A judge in Sonoma Superior Court had ordered them to pay $25,000 as “reasonable sanctions including attorney fees” to William L. Adams, a Santa Rosa lawyer whom they sued on various tort theories after Adams’ client tried to force the sale of Musaelian’s home to satisfy a default judgment entered against a company controlled by Musaelian’s husband.

The suit against Adams was dismissed after demurrers were sustained on the grounds that a malicious prosecution claim was precluded because the underlying state court judgment was in favor of Adams’ client, and that all other causes of action were barred by the litigation privilege. The judge subsequently granted Adams’ Sec. 128.7 motion, finding that no reasonable person would have believed the suit meritorious, and ordered Warner and Musaelian to pay the attorney fees sought by Adams, who represented himself, as sanctions.

In reversing, the First District Court of Appeal’s Div. Four acknowledged that its ruling was contrary to Laborde v. Aronson (2001) 92 Cal.App.4th 459 and Abandonato v. Coldren (1995) 41 Cal.App.4th 264, which the high court yesterday overruled.

Werdegar cited Trope v. Katz (1995) 11 Cal.4th 274, which held that self-represented attorneys could not recover fees in a contract action under Civil Code Sec. 1717. The justice rejected the argument that a different rule should apply when the attorney fees are awarded as sanctions, saying the statutory language was clear in both cases.

She also noted that Sec. 128.7 is patterned after Rule 11 of the Federal Rules of Civil Procedure, and that federal courts have held that a self-represented attorney may not recover fees under that rule.

The justice also rejected the argument that allowing self-represented lawyers to recover fees is necessary to deter the kind of litigation tactics that the statutes are designed to prevent. The trial judge may, she noted, impose sanctions payable to the court, and in any event a lawyer who becomes a litigant may hire another attorney to represent him or her in responding to the bad-faith tactics.

The case is Musaelian v. Adams, 09 S.O.S. 303.