McCall v. Morris Polich & Purdy
Filed 11/25/13 McCall v. Morris Polich &
Purdy CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION FIVE
BRANDON MCCALL et al.,
Plaintiffs
and Respondents,
v.
MORRIS POLICH & PURDY et al.,
Defendants
and Respondents;
THE QUISENBERRY LAW FIRM,
Objector
and Appellant.
B240242
(Los
Angeles County
Super. Ct.
No. BC289925)
APPEAL
from an order of the Superior Court
of
County, Anthony J. Mohr, Judge. Affirmed.
The
Quisenberry Law Firm and John N. Quisenberry; Esner, Chang & Boyer and
Stuart B. Esner, for Objector and Appellant.
Shenoi
Koes, Allan A. Shenoi, for Defendant and Respondent Shenoi Koes.
Morris
Polich & Purdy, Richard H. Nakamura, Jr., and David J. Vendler, for
Defendant and Respondent Morris Polich & Purdy.
No
appearance on behalf of Plaintiffs and Respondents.
I. INTRODUCTION
This involves a second appeal in a
dispute over class action attorney fees.
Two law firms, Morris Polich & Purdy LLP and Shenoi Koes LLP,
were named as defendants in an arbitration proceeding. Brandon McCall, Barry Selbst, Kelly-Slate
Diaz and Dani Reagan are the named plaintiffs of the salaried managers’
subclass in the class action. They are
likewise the plaintiffs in the arbitration
proceeding. The parties refer to the
salaried managers’ subclass as the McCall subclass. Defendants had represented the entire class
during part of the wage and hour class action.
Opposing defendants in the attorney fee dispute is the Quisenberry Law
Firm, which appeared through its principal, John N. Quisenberry (the
objector). The objector represented the
McCall subclass during a portion of the class action. The objector negotiated a settlement on the
McCall subclass’s behalf. For clarity’s
purpose, we will refer to Morris Polich & Purdy LLP and Shenoi Koes
LLP as defendants.
The objector
appeals from a March 22, 2012 order directing Labor Ready Inc., the McCall
class’s employer, to disburse $247,000 to defendants. The trial court issued the disbursement order
after an arbitrator awarded defendants, the prior class counsel, 65 percent of
the $380,000 attorney fees award. The
objector argues: it was error to order
Labor Ready Inc. to release two-third of the class counsel fees to defendants;
it was not bound by the arbitration award because the arbitration was between defendants
and the McCall class; the trial court
could not release two-thirds of the class counsel fees on the basis of the
arbitration award; the class counsel fees cannot be used to satisfy the prior
class counsel’s quantum meruit claim
against the McCall class; the
disbursement order circumvents the requirements governing the execution of
money judgments because Labor Ready, Inc. is not a judgment debtor. The objector’s arguments are meritless as
they are barred by the law of the case doctrine. Thus, we affirm the order.
II. BACKGROUND
On December 20, 2007,
the McCall class filed an application
for preliminary approval of the class action settlement. On December 19, 2007, defendants filed a
notice of lien for attorney fees and costs.
On October 17, 2008, the trial court approved the McCall class action settlement.
The trial court awarded class counsel $380,000 in attorney fees.
At a January 22, 2009 hearing, defendants
stated their intention to pursue arbitration with the class
representatives. On August 25, 2009,
the trial court ordered Labor Ready, Inc. to place $380,000 in attorney fees
for the McCall subclass into an
interest bearing escrow account. The
order states: “Once Defendants deposit
the $380,000 into the escrow account, the escrow agent will not disburse the
funds until there is a court order confirming a binding arbitration award as a
result of binding arbitration between the four class representatives and the
law firms of Morris, Polich & Purdy LLP and Pierry Shenoi LLP or a written
agreement between and among [class representatives], The Quisenberry Law Firm,
Morris, Polich & Purdy LLP and Pierry Shenoi LLP . . . regarding
the allocation of the funds.†On
December 2, 2009, the trial court granted the class representatives’ petition
to compel defendants to arbitrate the fee issue.
On July 8, 2011, the arbitrator issued an
to 65 percent of the $380,000 attorneys’ fees fund or $247,000. The arbitrator also awarded the objector
the remaining 35 percent of the $380,000 attorneys’ fees fund or $133,000. The trial court confirmed the arbitration
award but corrected it to exclude any reference to a fee award to the objector. On January 3, 2012, the trial court entered
judgment on the order confirming the corrected arbitration award. The objector filed a timely notice of appeal
from the judgment correcting and confirming the arbitration award.
Following entry of judgment, defendants
moved for an order directing Labor Ready, Inc. to release 65 percent of the
$380,000 to them. The objector opposed
the motion to disburse the funds on February 17, 2012. The trial court granted the motion on March
22, 2012. Labor Ready, Inc. was ordered to
disburse to defendants $247,000, which was the arbitration award amount. The objector filed a notice of appeal of this
order on March 29, 2012.
On October 30, 2012, we affirmed the January
3, 2012 judgment correcting and confirming the arbitration award. (McCall
v. Morris Polich & Purdy LLP (Oct. 30, 2012, B239142) [nonpub.
opn.].) We held the arbitrator did not
have power to adjudicate the objector’s right to any portion of the $380,000
fund because it was not a party to the arbitration agreement. (Id.
at p. 12-13.) However, we held the
arbitrator had authority to determine the amount of fees earned by defendants. (Id.
at p. 11.) We ruled the objector failed
to identify any grounds for vacating the arbitrator’s finding that defendants
were entitled to 65 percent of the $380,000 fund. (Ibid.) We disagreed with the objector’s contention
it was entitled to the full $380,000 in fees pursuant to a joint stipulation
with the McCall class. (Id.
at p. 14.) In addition, we rejected the
objector’s argument that the corrected arbitration award constituted an
involuntary forfeiture of its property rights.
We reasoned the objector could have, but declined to, protected its
rights by: filing suit to adjudicate its
rights to the $380,000 fund; bringing all interested parties into court
pursuant to Code of Civil Procedure section 1281.2, subdivision (c); moving to
stay the arbitration pending resolution of the dispute in the judicial forum;
agreeing to participate in arbitration between the McCall class representatives and defendants; or appealing the trial
court’s October 17, 2008 final order. (
III. DISCUSSION
In this appeal, the objector challenges the March
22, 2012 disbursement order compelling Labor Ready Inc. to release two-third of
the class counsel fees to defendants. The
objector contends it was not bound by the arbitration award because the
arbitration was between defendants and the McCall
class. Thus, the objector reasons
the trial court could not release two-thirds of the class counsel fees on the
basis of the arbitration award. The
objector also argues the class counsel fees cannot be used to satisfy defendants’
quantum meruit claim against the
disbursement order circumvents the requirements governing the execution of
money judgments because Labor Ready, Inc. is not a judgment debtor. The objector’s arguments are barred by the
doctrine of the law of the case.
Our Supreme Court has explained, “‘The
decision of an appellate court, stating a rule of law necessary to the decision
of the case, conclusively establishes that rule and makes it determinative of
the rights of the same parties in a subsequent retrial or appeal in the same
case.’†(Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491;
892-893.) Our Supreme Court has
stated: “‘ Generally, the doctrine of law
of the case does not extend to points of law which might have been but were not
presented and determined in the prior appeal.
[Citation.] As an exception to
the general rule, the doctrine is . . . held applicable to
questions not expressly but implicitly decided because they were essential to
the decision of the prior appeal.
[Citations.]’†(
Estate of Horman (1971) 5 Cal.3d 62,
73.) The law of the case doctrine is
applicable even when the prior appellate opinion is erroneous. (Morohoshi
v. Pacific Home, supra, 34 Cal.4th at p. 491; People v. Stanley (1995) 10 Cal.4th 764, 786.)
In our prior opinion, we affirmed the
judgment confirming the corrected arbitration award. We found the objector was not bound by the
arbitration agreement. But we concluded
the arbitrator had authority to determine the amount of fees earned by defendants
pursuant to the arbitration agreement with the McCall class. We held the
objector failed to identify any grounds for vacating the arbitrator’s
determination defendants were entitled to 65 percent of the $380,000 fund. And we rejected the objector’s argument that
it was entitled to the entirety of the $380,000 attorney fees, the same
argument it raises in this appeal. Our
prior opinion resolved the allocation of 65 percent of the $380,000 fee award
in defendants’ favor. Thus the objector’s
arguments, which challenge defendants’ entitlement to 65 percent of the fee
award, are meritless as they are barred by the law of the case.
IV. DISPOSITION
The March 22, 2012 order is affirmed. Defendants, Morris, Polich & Purdy LLP
and Shenoi Koes LLP, are awarded their appeal costs from the objector, The
Quisenberry Law Firm.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER,
P. J.
We concur:
KRIEGLER,
J.
KUMAR, J.
