California Court of Appeals, First District, Fifth Division
Superior Court of Alameda County, No. RG11586724, George C. Hernandez, Jr., Judge.
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Eisenberg Law Office and Neil D. Eisenberg for Plaintiff, Cross-defendant and Appellant.
Siegel & Yee and Dan Siegel for Defendants, Cross-complainants and Respondents.
Attorneys Dan Siegel and Ann Weills represented Nimachia Hernandez in a successful employment discrimination lawsuit in which attorney fees and costs were awarded, pursuant to Government Code section 12965. The total amount of the fee award, plus accrued interest, was paid directly to Siegel’s law firm by the defendant in the litigation. When the interest was not disbursed to her, Hernandez sued Siegel, Weills, and their law firm, Siegel & Yee (collectively respondents), alleging causes of action for breach of fiduciary duty and intentional tort. The trial court was ultimately asked to determine whether Hernandez or her attorneys were entitled to the
interest paid on the attorney fees, as well as the costs awarded. The trial court concluded respondents, rather than Hernandez, were entitled to both. Hernandez appeals. We affirm.
I. Factual and Procedural Background
In September 2005, Hernandez retained respondents to represent her in an employment discrimination suit, brought under the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.), against the Regents of the University of California (Regents). Hernandez and Weills signed a fee agreement (Fee Agreement), which provides in relevant part:
“2. Attorneys’ fees. Except as indicated below in paragraphs 4 and 5, we agree that you will not pay us anything for our time unless we are successful in this matter, either at trial or through settlement.... If you are successful in this matter through litigation or settlement, we will be paid attorney’s fees as follows: The greater of: (1) Attorneys’ fees specifically awarded by the court or through settlement; or (2) 40 percent of the net recovery (including attorneys’ fees awarded by the court or through settlement), after payment of the amounts described in paragraph 3 below. Please note that these terms are not established by law but are subject to negotiation between you and us.
“3. Costs. Our firm will advance all out of pocket costs in this litigation, such as filing fees, deposition costs, witness fees, expert consultant fees, jury fees, travel costs, etc. If this matter is ultimately settled, our firm will be reimbursed from the settlement proceeds for all costs incurred prior to the calculations described in paragraph 2.
“4. Discharge of counsel. You may discharge us as your counsel at any time. However, in the event you do so prior to the resolution of your case, this Agreement shall be transformed from a contingent fee agreement into an hourly fee agreement and you will be liable to us for our work on the case at our regular hourly rates....
“5. Lien for Attorney’s Fees and Costs. You further agree that our firm will have a lien for our attorney’s fees and litigation costs against the ultimate settlement or judgment in your lawsuit.... This means that you authorize and agree that our outstanding bill for fees and costs must and will be paid from the settlement or judgment in your case, whether or not we are your counsel at the time the matter is finally resolved. [¶]... [¶]
“7. Execution of Documents. You agree that we have the authority to execute any and all pleadings, claims, settlements, drafts, checks, compromises, releases, ...