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Court of Appeal:
Prevailing Defendants in Malpractice Action Get No Fees
No Distinction Found Between 1998 Case Where Contractual Clause Providing for Fees to Prevailing Party Was Disregarded Because Suit Was for Negligence, Only, and Present Case Where Breach of Contract Was Alleged
By a MetNews Staff Writer
The Court of Appeal for this district yesterday affirmed the denial of an award of attorney fees to defendants who prevailed in a legal malpractice action, holding that a contractual provision calling for such an award to the prevailing parties was inapplicable because the lawsuit was rooted in alleged tortious conduct even though one cause of action was for breach of contract.
Justice Brian S. Currey of Div. Four authored the unpublished opinion which affirms Los Angeles Superior Court Judge Monica Bachner’s denial of fees to Century Law Group (“CLG”) and its founder/partner, Edward Lear. They were sued by former client Jonathan C. Rosen, a Glendale attorney.
A provision of the retainer agreement says:
“If any action at law or in equity, in court or in arbitration, is necessary to enforce or interpret the terms of this Retainer Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees (including fees for services rendered by our law firm’s attorneys, waiving any contrary holding in Trope v. Katz (1995) 11 Cal.4th 274) incurred by our law firm, costs and necessary disbursements, in addition to any other relief to which it may be entitled.”
In Trope, the California Supreme Court held that an attorney, acting in pro per, cannot garner attorney fees under a contractual clause providing for fees to the prevailing party.
Action for Tort
What blocked the award of fees to Lear and CLG, under Currey’s opinion, was not that fees were sought for services by an attorney who was of counsel, but because Rosen sued in tort.
The jurist pointed to the 1998 decision by the First District Court of Appeal’s Div. One in Loube v. Loube. It was held in that case that to the extent the plaintiffs sued for malpractice, “we conclude that appellants did not bring suit ‘on the contract,’ ” but instead, “for negligence.”
While reversing an award of attorney fees to the defendant law firm for fighting off a negligence claim, the court in Loube remanded for a determination of fees in resisting a cause of action for allegedly charging in excess of what was provided for in the retainer agreement, that segment of the lawsuit sounding in contract.
Contractual Breach Alleged
In the case decided yesterday, the defendant stressed that Rosen had included a cause of action for breach of contract. Currey wrote:
“Rosen’s breach of contract claim was entirely premised on the malpractice claim. Specifically, the complaint alleged CLG breached the contract by ‘failing to provide [Rosen] with competent legal services.’ We therefore agree with the trial court that the gravamen of the action was for legal malpractice, and therefore the action was not ‘on a contract’ containing an attorneys’ fee provision.”
Lear and CLG argued that even if they cannot recover fees based on services in defending against Rosen’s action, they are entitled to fees relating to their success on a cross complaint for breach of contract. Currey rejected that contention.
He pointed out that in claiming entitlement to $216,610 in attorneys’ fees, CLG and Lear provided time records of attorney Karen A. Larson.
“CLG failed, however, to provide the trial court with evidence from which it could apportion fees for time spent on prosecuting the cross-complaint,” the jurist said. “To the contrary, Ms. Larson does not claim to have expended any hours prosecuting the cross-complaint.”
The case is Rosen v. Century Law Group, B309991.
On appeal, CLG and Lear were represented by Larson. Rosen was in pro per.
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