Metropolitan News-Enterprise


Thursday, February 1, 2018


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Lawyer Asserts C.A. Defied Due Process by Authorizing Relief Unsought by Party

Longtime Attorney Nathaniel J. Friedman Scores Panel for Decision in Case Involving Question Of Whether MICRA Applies; Asserts It Erred on Authorizing a Lowering of His Fees


By a MetNews Staff Writer


Veteran Beverly Hills attorney Nathaniel J. Friedman has accused Div. Three of this district’s Court of Appeal of exceeding its jurisdiction and breaching his right to due process by responding to his appeal of an attorney fee award he received—which he contended was too low—by remanding the case and pointing to the prospect of his being forced to disgorge fees.

“If Appellant had the slightest belief (notice) that he might face the prospect of paying in excess of $178,000,” Friedman said in a petition for rehearing served by mail Tuesday, “he would not have appealed,” adding:

“Appellant would retire from practice were he compelled to pay any amount pursuant to this Court’s in excess of jurisdiction direction to the trial court.”

Contests Fujie’s Decision

Los Angeles Superior Court Judge Holly Fujie had accepted Friedman’s contention that his $2.5 million compromise of a minor’s claim for damages against a hospital in connection with a cesarean section performed on her mother in delivering her was not subject to fee limitations set forth in the Medical Injury Compensation Reform Act of 1975 (“MICRA”). The notion that MICRA was inapplicable was pinned to allegations that “misconduct,” going beyond malpractice, was alleged in the complaint.

Friedman sought $833,333 based a contingency fee contract setting his share at one-third. Fujie, in approving the settlement, limited him to one-fourth, the standard percentage in cases involving a compromise of a minor’s claim, which amounted to $625,000.

Fujie was “conditionally reversed.” The appeals court, in a Jan. 19 opinion that was not certified for publication, agreed that Friedman did not deserve the award he sought and, going beyond that, strongly hinted that Fujie erred in finding MICRA does not apply.

Stone’s Holding

Acting Justice Natalie Stone, a Los Angeles Superior Court judge sitting on assignment, wrote:

“The order awarding attorney fees is conditionally reversed and vacated and the trial court is directed on remand to determine, consistent with the principles set forth in this opinion, whether MICRA applies to this case. If the court determines MICRA does not apply and that Friedman obtained the requisite informed consent to settle a non-MICRA claim, the court shall reinstate the order awarding Friedman $625,000 in attorney fees. If the court determines MICRA does apply, the court shall vacate the prior order, enter a new order awarding attorney fees consistent with MICRA’s limitations, and order disgorgement of the fees paid to Friedman in excess of the statutory limit.”

Under MICRA, attorney fees are limited to “(1) Forty percent of the first fifty thousand dollars ($50,000) recovered. [¶] (2) Thirty-three and one-third percent of the next fifty thousand dollars ($50,000) recovered. [¶] (3) Twenty-five percent of the next five hundred thousand dollars ($500,000) recovered. [¶] (4) Fifteen percent of any amount on which the recovery exceeds six hundred thousand dollars ($600,000).”

Petition for Rehearing

In his petition for rehearing, Friedman asserted:

“The remedy fashioned by the Court was in excess of its jurisdiction. That is to say, no one requested a possible reduction of the awarded attorney fees, and Appellant did not consider such to be a possibility when he filed his Notice of Appeal.”

The lawyer pointed to the Court of Appeal’s 2013 opinion in Stump’s Market, Inc. v. Plaza De Santa Fe Limited, LLC. There the court said:

“Under California law, a case normally must present an actual controversy between the parties before a court will entertain it.”

He asserted that Stone’s opinion is “directly contradictory to that of Division One’s controlling authority, Gonzalez vs. Chen (1997).”

Mallano’s Opinion

That opinion, by then-Presiding Justice Robert M. Mallano (now retired), rejected Friedman’s assertion that in connection with a compromise of a minor’s claim, he was entitled to the maximum attorney fee set forth in MICRA. The fee must be determined, Mallano said, independently of MICRA, under the state Rules of Court “reasonableness” standard.

Friedman argued that under that standard, he should receive the 8¹/³ percent boost he seeks,  declaring it is “based primarily on the result achieved,” elaborating:

“In a word, results matter.”

Taking a poke at Stone, he wrote:

“If the Pro Tem author of this Court’s seriously flawed opinion believes Appellant has been too harsh, her attention is directed to the recent decision of Division One of this Honorable Appellate District in Guan vs. Hu (2018)….”

Spirited Dissent

There, Justice Jeffrey Johnson, in an uncharacteristically scathing assault on colleagues, accused the majority—comprised of Presiding Justice Frances Rothschild and the division’s former member, Elwood Lui, now presiding justice of Div. Two—of “grave distortions to both the record and the law.” He berated the majority for departing from established principles “in order to reach the result it desires.”

Friedman called upon the justices to reverse Fujie’s award and declare his entitlement to the amount he seeks, or affirm the award. He suggested also that it do what Court of Appeal Presiding Justice Norman Epstein did in a case, as recited by the California Supreme Court in a 2012 decision, in calling for high court review.

The appellant tossed in the comment that Epstein “should have been elevated, long ago, to the Supreme Court.”

The petition for rehearing comes in the case of Romero v. Kaiser Foundation Health Plan, B277499.


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