Tuesday, October 22, 2002
C.A. Says Lawyer/Litigant Entitled to Recover Attorney Fees
By KENNETH OFGANG, Staff Writer/Appellate Courts
A state Supreme Court ruling that bars lawyers from recovering attorney fees for representing themselves does not preclude an award for the services of their co-counsel, the Court of Appeal for this district ruled yesterday.
Div. Five ruled that Terence J. Mix is entitled to recover at least $87,000 of the fees that he paid to the Los Angeles firm of Allen, Matkins, Leck, Gamble & Mallory for litigation against his former landlord, Tumanjan Development Corporation.
The case was sent back to the Superior Court to determine whether Mix should receive an additional $9,000 or so for litigation over attorney fees and costs, an issue that Los Angeles Superior Court Judge Cary Nishomoto apparently overlooked, Justice Margaret Grignon wrote.
The litigation grew out of a 1989 lease that Mix, a personal injury lawyer who has since moved to Hawaii, signed with Tumanjan. The lease included an attorney fee clause.
In 1995, Mix sued the landlord, claiming that he had been overcharged for rent. He moved out the following year, and Tumanjan sued for breach of the lease.
Mix filed his own complaint, and his own answer to Tumanjan’s complaint, but hired Allen Matkins as co-counsel. Two experienced real estate lawyers with that firm, Charles Kenworthy and Adela Carrasco, worked on the case and appeared with Mix at trial, although a formal notice of association of counsel was not filed until after judgment was entered.
The jury awarded Mix $60,000 on his claim, and rejected the landlord’s. An order granting new trial was reversed on appeal, and the case was sent back for a ruling on Mix’s motion for attorney fees and costs.
Mix did not seek fees for his own time, which would be precluded by Trope v. Kat (1995) 11 Cal.4th 274. But he and Kenworthy offered declarations stating that he had paid the firm more than $113,000 for its services through the defense of the new trial motion.
Tumanjan attacked the fee request as being barred by Trope and as excessive.
Nishomoto ruled that the firm had charged excessive amounts for preparation of jury instructions and for researching a summary judgment motion. He cut the request by $26,000, but held that all of the other charges were reasonable.
Grignon, writing for the Court of Appeal, agreed that the plaintiff was entitled to recover fees for services of outside counsel, rejecting the argument that such awards should be barred to prevent their being used as a “subterfuge” for getting around Trope.
There was no evidence that any such subterfuge occurred or was attempted by Mix or Allen Matkins, the justice noted. The theoretical possibility that such chicanery might occur in some other case, she said, does not support a general rule barring an attorney who proceeds in pro per from recovering fees legitimately incurred to assisting attorneys.
Mix handled his own appeal, with the assistance of Palos Verdes attorney Julie S. Hernandez. James A. Flanagan of Grebow & Yee represented Tumanjan.
The case is Mix v. Tumanjan Development Corporation, 02 S.O.S. 5365.
Copyright 2002, Metropolitan News Company