Friday, December 15, 2017
Court of Appeal:
Pro Per Attorney Gets No Fees in PRA Case
Plaintiff Succeeded in Gaining Documents Relating to Death Of Natalie Wood; Holding of Case Is in a Footnote
By a MetNews Staff Writer
The Court of Appeal for this district has declared that an attorney representing himself in gaining access to government documents concerning the 1981 drowning-at-sea of actress Natalie Woods cannot garner attorney fees under the California Public Records Act,.
Although the bulk of Wednesday’s unpublished opinion deals with why an attorney cannot receive fees in such a case, and sets forth in the first sentence that plaintiff Samuel A. Perroni is “an attorney representing himself,” it not until footnote 9 that Acting Justice Michael Raphael, writing for Div. Five, reveals that the discussion relating to pro per attorneys is dictum.
In the footnote, he said that Perroni “appears not to be licensed or otherwise authorized to practice law in California.” (He is not listed on the State Bar website.)
Raphael, a Los Angeles Superior Court judge sitting on assignment, quoted the 1998 California Supreme Court opinion in Birbrower, Montalbano, Condon, & Frank v. Superior Court as saying (quoting a 1950 Court of Appeal opinion):
“No one may recover compensation for services as an attorney at law in this state unless [the person] was at the time the services were performed a member of The State Bar.”
“Plaintiff’s theory that he should be compensated for performing attorney services may rely on plaintiff’s engaging in the unauthorized practice of law….We need not make such a determination here, as plaintiff cannot recover attorney fees as a self-represented attorney.
“We further note that it is unclear whether plaintiff is currently authorized to practice law in any jurisdiction. Plaintiff indicated he is ‘effectively retired’ as an attorney.”
Perroni was a trial lawyer in Little Rock, Ark.
Although it is reflected in the body of the opinion that the plaintiff is “from Arkansas” and that in 2008 he “effectively retired from practicing law because of his health,” it refers to him as “a licensed attorney” and the discussion—other than in footnote 9—is premised on him being an attorney licensed to practice law in California.
In the judgment, Los Angeles Superior Court Judge James Chalfant observed that Perroni was the prevailing party in his action against Sheriff Jim McDonnell, noting that he gained access to “241 documents and 32 photographs.” Chalfant said he also prevailed with respect to documents sought from Chief Medical Examiner/Coroner Mark A. Fajardo, obtaining, among other things, the “Miller Report,” commissioned in 1981 by then-Coroner Thomas T. Noguchi from Paul Miller, an expert on ocean accidents.
He awarded no attorney fees, and it was that denial that Div. Five affirmed.
Raphael pointed to the California Supreme Court’s 1985 decision in Trope v. Katz in which it was held that where a contract provides for attorney fees to the prevailing party in any litigation, an attorney who is self-represented does not qualify for a fee award.
Justice Stanley Mosk (now deceased) explained that “the usual and ordinary meaning of the words ‘attorney’s fees,’ both in legal and in general usage, is the consideration that a litigant actually pays or becomes liable to pay in exchange for legal representation,” and “[a]n attorney litigating in propria persona pays no such compensation.”
Raphael wrote that the “Court of Appeal has applied the Trope holding to many fee-shifting statutes,” pointing to three of them, and said Trope likewise applies to the California Public Records Act (“CPRA”) “and it does not permit plaintiff to recover attorney fees here.”
The jurist went on to discuss Perroni’s contention that the Legislature intended that any prevailing party should recover attorney fees in a CPRA case because it provided that an agency frivolously sued in such an action can recoup such fees. Raphael said:
“Whether the CPRA should allow such recovery is a policy choice, and plaintiff cites to no evidence that the Legislature made that choice….As discussed, the legal meaning of ‘attorney fees’ does not include recovery by a self-represented attorney.”
The case is Perroni v. Fajardo, B281167.
Perroni, who intends to write a book on Wood’s death, represented himself on appeal. Daniel P. Barer and Anna L. Birenbaum of Pollak, Vida & Barer acted for Fajardo and McDonnell.
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