Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Carpenter & Zuckerman et al v. Paul Cohen et al

May 10, 2011

CARPENTER & ZUCKERMAN ET AL., PLAINTIFFS AND APPELLANTS,
v.
PAUL COHEN ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from an order of the Superior Court of the County of Los Angeles, Bert Glennon, Jr., Judge. (Los Angeles County Super. Ct. No. LC066789)

The opinion of the court was delivered by: Mosk, J.

CERTIFIED FOR PUBLICATION

Affirmed.

INTRODUCTION

The trial court in granting defendants' request to strike plaintiffs' memorandum of costs seeking attorney fees incurred as the prevailing parties in a prior appeal, a law firm and its two partners, by using an associate in the law firm, had, in effect, represented themselves in the prior appeal. In this appeal, plaintiffs contend that the trial court erred in granting the motion to tax costs because the attorney who represented them on appeal was not a partner and otherwise had no financial interest in their law firm. Also, plaintiffs contend that, even if the law firm plaintiff cannot recover fees for the legal services of the associate, the individual plaintiffs can recover fees attributable to that associate's services rendered on their behalf.

In affirming the order denying plaintiffs' request for attorney fees for services rendered by the associate to the firm and its partners, we hold that (1) substantial evidence supports the trial court's finding that the attorney who represented plaintiffs in the prior appeal was doing so as an associate of the law firm and not as an independent contractor, and, therefore, plaintiffs legally are not entitled to an award of attorney fees; and (2) the trial court was justified in concluding that based on the record, the individual plaintiffs could not recover attorney fees in connection with the appeal because there was no showing of any distinction between the cross-claims against the law firm plaintiff and those against the individual plaintiffs.

PROCEDURAL BACKGROUND

Defendants and respondents Paul Cohen and Personal Injury Solutions, Inc.*fn1 filed a cross-complaint against plaintiffs and appellants--the law firm of Carpenter & Zuckerman, LLP (limited liability partnership) and its partners, John Carpenter and Paul Zuckerman (collectively plaintiffs)--alleging interference with economic advantage and defamation. The trial court granted plaintiffs' special motion to strike that cross-complaint pursuant to Code of Civil Procedure section 425.16 (section 425.16)--the anti-SLAPP (strategic lawsuit against public participation) statute. Defendants appealed from, inter alia, the orders granting the special motion to strike and awarding attorney fees as costs. We dismissed defendants' appeal as untimely and awarded to plaintiffs reasonable attorney fees incurred on appeal pursuant to section 425.16, subdivision (c) as prevailing parties on defendants' appeal.

Plaintiffs submitted a memorandum of costs in the trial court listing a single item of cost in the amount of $33,168.75 for "Attorneys' Fees (including [a] lodestar enhancement)." At a subsequent hearing, however, the trial court could not locate the cost memorandum in the court file. As a result, plaintiffs filed a motion for an order deeming a new memorandum of costs filed nunc pro tunc. The trial court granted the motion, and defendants then moved to tax costs on the ground that plaintiffs were not entitled to attorney fees because they represented themselves on appeal.

Plaintiffs opposed the motion to tax costs and submitted two declarations of attorney Candice Klein in support of their opposition. In the first of those declarations, Ms. Klein asserted that plaintiffs "retained" her to represent them in connection with defendants' appeal from the orders striking their cross-complaint and awarding plaintiffs' attorney fees. According to Ms. Klein, she was not a partner in the Carpenter & Zuckerman law firm, had no personal interest in the underlying litigation, and provided legal services to that firm on "an independent contractor basis." Ms. Klein also declared that plaintiffs entered into a contingency fee agreement with her under which she was entitled to any attorney fees awarded to plaintiffs in connection with defendants' appeal.*fn2 She declared that she had an attorney-client relationship with each of the plaintiffs that entitled her "to charge for her work." She further declared that she expended 76.25 hours litigating the appeal on behalf of plaintiffs, that her hourly rate for appellate work was $290 an hour, and that she was entitled to a lodestar enhancement of 1.5. Based on the number of hours expended and her stated hourly rate, Ms. Klein calculated that her lodestar amount should be $22,112.50, and that when multiplied by a factor of 1.5, plaintiffs were entitled to a total of $33,168.75 in attorney fees.

At the hearing on the motion to tax costs, the trial court considered a prior declaration filed by plaintiff John Carpenter.*fn3 In that declaration, Mr. Carpenter stated that "Candice S. Klein was at all relevant times to this litigation and through the present day remains an associate in my firm." The trial court also considered a copy of a page from the State Bar of California website that listed Ms. Klein's address of record as "Carpenter & Zuckerman, 8827 W. Olympic Blvd[.], Beverly Hills, CA 90211." Based on that evidence, the trial court found Ms. Klein to be an associate of Carpenter & Zuckerman at the time she represented plaintiffs on the appeal from the order striking defendants' cross-complaint. The trial court also concluded that although Mr. Carpenter and Mr. Zuckerman were named in their individual capacities in the cross-complaint, there was no indication in the record that there was any potential individual liability, separate and apart from the potential liability of their law firm. Accordingly, the trial court in granting plaintiffs' motion to tax costs ruled that plaintiffs were not entitled to recover attorney fees because attorneys who represent themselves, or a law firm that represents itself, in litigation cannot recover attorney fees based on such representation. The trial court considered and rejected defendants' assertion that the decision in Gilbert v. Master Washer & Stamping Co., Inc. (2001) 87 Cal.App.4th 212 (Gilbert) applied to the facts of this case. As discussed below, the court in Gilbert held that when an attorney who is sued in a matter involving his "personal interests" is represented by another partner in his law firm, the attorney may recover attorney fees under Civil Code section 1717 for services rendered by that partner. (Id. at p. 214.)

DISCUSSION

A. Standards of Review

"'"An order granting or denying an award of attorney fees is generally reviewed under an abuse of discretion standard of review; however, the 'determination of whether the criteria for an award of attorney fees and costs have been met is a question of law.' [Citations.]"'" (SC Manufactured Homes, Inc. v. Canyon View Estates, Inc. (2007) 148 Cal.App.4th 663, 673.) An issue of law concerning entitlement to attorney fees is reviewed de novo. (See Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1213-1214; Sessions Payroll Management, Inc. v. Noble Construction Co., Inc. (2000) 84 Cal.App.4th 671, 677.) "When a trial court has resolved a disputed factual issue, an appellate court reviews the ruling according to the substantial evidence rule. The trial court's resolution of the factual issue must be affirmed if it is supported by substantial evidence. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632 [80 Cal.Rptr.2d 378].) We look at ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.