Wednesday, October 29, 2014
Appeals Panel Overturns Award of Private Attorney General Fees
C.A. Says Plaintiff, Who Obtained Order Barring Technician From Claiming to Be a Dentist, Failed to Show Suit Was Necessary
By KENNETH OFGANG, Staff Writer
The Sixth District Court of Appeal yesterday overturned an award of nearly $127,000 in attorney fees to a man who sued a dental technician for holding herself out as a dentist.
The court said a Santa Clara Superior Court judge erred in granting the fee award under the private attorney general statute, Code of Civil Procedure §1021.5, because the plaintiff failed to show that it was necessary to bring a private civil action in order to enforce the public’s right not to be misled into using the services of an unlicensed dentist.
Vien T. Bui sued Hi-Tech Dental, Inc. and its owner and dental assistant, Trang Kim Nguyen, for negligence and fraud. He claimed that Nguyen held herself out as a dentist at the clinic, and that dental work was negligently performed on him there.
A jury awarded $150,000 against the corporation for intentional misrepresentation and $50,000 against Nguyen on the same claim. But Judge Franklin Bondonno concluded that the award against the corporation could only be sustained on the basis of respondeat superior, and reduced it to $50,000, for which the corporation and Nguyen were held jointly liable.
Three weeks after the jury verdict, Bui moved for equitable relief. Bondonno granted the requested relief in part, enjoining Nguyen from failing to identify herself as a dental assistant in advertising and to refrain from wearing a white lab coat at the facility, based on Bui’s testimony that he believed Nguyen was a dentist because she wore such a coat.
The judge then awarded attorney fees under §1021.5, which authorizes such an award when certain criteria are met, including that the award has vindicated important legal rights of the public or of a significant number of persons and that private enforcement was necessary.
In opposing the motion, the defendants noted that the clinic had been in operation for almost 20 years and argued, among other things, that Bui failed to show that public agencies would not have enforced the laws against unlicensed dentistry and misrepresentation had they been asked to do so.
Bui replied, with support from an associate clinical law professor at Santa Clara University and a dental malpractice lawyer, that members of the clinic’s target clientele, non-English-speaking immigrants, rarely file complaints with government agencies, and that the California Dental Board was unlikely to act upon any such complaints.
Justice Miguel Marquez, writing for the Court of Appeal, sided with the defendants, noting that the plaintiff made no showing that any efforts had actually been made, by Bui or anyone else, to have the dental board, or any other agency, act or that government agencies routinely refuse to enforce the laws against unlicensed dentistry or false advertising.
The jurist distinguished Committee to Defend Reproductive Rights v. A Free Pregnancy Center (1991) 229 Cal.App.3d 633, which held that plaintiffs who sued a pregnancy counseling center for misrepresentation were not precluded from receiving §1021.5 fees solely because they did not ask the district attorney to sue before they did so themselves.
That case, Marquez said, “did not hold that it is not relevant for the court to consider a private litigant’s presuit efforts to contact governmental authorities concerning public enforcement before filing a lawsuit.” Whether public enforcement of the right was sought, he said, “is a relevant factor where, as here, a private litigant sues another private litigant for a matter that, on its face, is a suit for damages to redress a personal wrong.”
The case is Bui v. Nguyen, H039310.
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