November 2012 Vol. 9, No. 3

9.3.8

Fee Recovery

Case:

Rickley v. Goodfriend  (2012)  207 Cal.App.4th 1528

Issue:

Did trial court err in holding that an attorney, representing herself as well as her spouse in connection with post-judgment contempt proceedings due to violation of a court order in a nuisance action against neighboring homeowners, was not entitled to an award of attorneys’ fees for the successful outcome under C.C.P §1218(a) without considering whether the attorney had an attorney-client relationship with her spouse in the action?

Holding:

Yes.  The judgment denying a motion for attorney fees was reversed and remanded to the trial court to examine the question of an attorney-client relationship and to award fees if the existence of an attorney-client relationship is found.

In reviewing the case de novo as a legal question of entitlement to attorney fees and not a fee dispute, the Court of Appeal noted no prior California case law on the precise question, but reviewed California Supreme Court and Court of Appeal cases on the issue of attorney awards for pro se attorney litigants.   (207 Cal.App.4th at 1541.)  In a number of different contexts, the Supreme Court had reviewed the language of the authorizing statute and consistently had not allowed pro se awards for those litigating for themselves and not “incurring” liability for attorney fees, but recognized an attorney’s right to fees in a pro se litigation where an attorney had assisted a pro se litigant in an attorney-client relationship and the litigant had “incurred” a liability for fees.  (Id. at 1544, citing Masaelian v. Adams (2009) 45 Cal.4th 512.)  A Court of Appeal case seemingly on point denied fees to a homeowner attorney representing himself and his spouse, finding the attorney’s interests were not separate from his spouse, and no liability for fees was established. (Id. at 1545, citing Gorman v. Tassajara Development Corporation (2009) 179 Cal.App.4th 44.) 

In analyzing the instant case, the Court of Appeal looked to the purpose of the contempt statute.  In pertinent part, CCP §1218 states:  “[A] person who is subject to a court order as a party to the action, or any agent of this person, who is adjudged guilty of contempt for violating that court order may be ordered to pay the party initiating the contempt proceeding the reasonable attorney’s fees and costs incurred by this party in connection with the contempt proceeding.”

In prior cases the Court of Appeal had found contempt proceedings to be quasi-criminal in nature, with purposes of encouraging wronged parties to prosecute and indirectly encouraging all involved parties to comply with court orders.  (207 Cal.App.4th at 1546, citations omitted.)   The Court of Appeal found the appellants had enforced an important public interest by garnering the respondents’ compliance, though the attorney- spouse took the risk that she would not be paid any attorney fees.  The Court found no clarity in the representation status with her spouse and whether others similarly situated would benefit from the contempt citation. The trial court did not analyze whether or not an attorney-client relationship existed.  (Ibid.)

“Despite the language in Gorman, we do not feel that identical damages, nor joint and indivisible interests between the spouse-attorney and the other spouse defeat the attorney-client relationship.”  Instead, the dispositive question is whether the non-attorney spouse consulted the attorney-spouse “in her professional capacity and whether their relationship in terms of this lawsuit, was for the purposes of obtaining legal advice,” a matter left to the trial court on remand.  (Id. at 1538.)  If the trial court found such a relationship, the trial court was directed to grant the request for fees.  (Id. at 1539.)

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