Rickley v. Goodfriend
Filed 10/15/12 Rickley v. Goodfriend CA2/7
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
REBECCA RICKLEY, et al.,
Plaintiffs and Appellants,
v.
MARVIN GOODFRIEND,
Defendant and Respondent.
B238965
(Los Angeles
County
Super. Ct.
No. SC081696)
APPEAL
from a judgment of the Superior Court
of
County. Cesar
Sarmiento, Judge. Reversed and remanded.
Natasha
Roit, in pro. per., and for Plaintiffs and Appellants.
Jeffer,
Mangels, Butler & Mitchell, Mark S. Adams, Kenneth A. Ehrlich and Elizabeth
A. Culley for Defendant and Respondent.
_____________________________
Plaintiffs and appellants Rebecca Rickley and Natasha
Roit (collectively referred to as appellants) appeal from an order denying
attorneys fees. We recently addressed
the same issue in a related appeal, Rickley
v. Goodfriend (2012) 207 Cal.App.4th 1528 (Rickley I.). We reverse and
remand.
FACTUAL & PROCEDURAL BACKGROUND
Appellants
own a home in Malibu, next to a
home owned by respondent Marvin Goodfriend (respondent) and his wife Tina
Fasbender Goodfriend (Fasbender).
Appellant Roit is an attorney.
Appellants, represented by Roit, brought two actions against respondent
and others for acts incurred during a remodel of respondent’s property. In the first action (case No. SC081696, the
First Action), appellants alleged that respondent, Fasbender, and Shahriar
Yazdani performed an unpermitted remodel and dumped the construction debris and
trash onto their and appellants’ hillsides, in a landslide-sensitive area. In the second action (case No. SC098072, the
Second Action), filed against respondent and Fasbender, appellants alleged a
nuisance and violation of CC&Rs by the encroachment of foliage and fencing. Appellants obtained judgments in both cases,
those cases failed to comply, appellants obtained orders to show cause for
contempt.
The First Action
In the
First Action, respondent pled guilty to all five contempt charges brought
against him and he was fined $4,000. On November 8, 2011, appellants filed a
motion for attorney fees pursuant to Code of Civil Procedure section 1218.
fees for 33.73 hours at the rate of $450 for a total of $15,178.50.
5, 2011, denying the request for fees on
three grounds: (1) section 1218 provides that such an award is discretionary,
(2) an attorney who represents himself or herself in propria person is not
entitled to recover attorney’s fees, citing Trope
v. Katz (1995) 11 Cal.4th 274 and (3) appellants had not incurred any fees,
citing Gorman v. Tassajara Development
Corp. (2009) 178 Cal.App.4th 44.
Appellants
filed a notice of appeal in February 2012.
The Second Action
In the
second action, in an order entered in May 2011, the trial court awarded fees
which appellant requested on behalf of an attorney associated in for purposes
of the contempt proceeding, but denied the bulk of the fees requested, which
was for Roit’s time. In July 2011,
appellants filed an appeal from that order.
On July 30, 2012, we
issued an opinion in Rickley I,
reversing the trial court’s order and remanding for a further determination of
whether an attorney-client relationship existed between Roit as an attorney and
Roit and Rickley as homeowners. (
1538-1539.)
DISCUSSION
This appeal
is from the denial of fees in the First Action.
As we
discussed in Rickley I, the previous
appeal, this case does not involve the enforcement of a contract as in
instead involves the quasi-criminal process of a contempt citation. The purpose of the applicable statute
authorizing an award of attorney fees, Code of Civil Procedure section 1218, is
to encourage parties to enforce contempt violations and to encourage parties to
comply with court orders. (
The
dispositive factor in awarding fees is not whether Rickley and Roit were liable
for or obligated to pay fees, but whether there was an attorney-client
relationship between Roit as an attorney and Roit and her spouse Rickley as
homeowners. (Lolley v. Campbell
(2002) 28 Cal.4th 367, 374-375, Musaelian
v. Adams
(2009) 45 Cal.4th 512, 520 and Healdsburg
Citizens for Sustainable Solutions v. City of
(2012) 206 Cal.App.4th 988, 995-997.)
Since the trial court did not make a determination of whether such a
relationship existed, we remand the matter to the trial court for such a
determination.
DISPOSITION
The
judgment (order denying motion for fees) is reversed and matter is remanded to
the trial court for a determination of whether there was an attorney-client
relationship between Rickley and Roit.
If such a relationship existed, then the trial court should reconsider
whether Roit should be awarded fees and if so how much.
Appellants
shall recover their costs on appeal.
WOODS,
J.
We concur:
PERLUSS, P. J.
ZELON, J.
name="_ftn1" title="">
[1] In the
First Action, appellants obtained judgments against Goodfriend, Fasbender and
Yazdani.
name="_ftn2" title="">[2] Code
of Civil Procedure section 1218, subdivision (a) provides in pertinent
part: “[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 to the party initiating the contempt proceeding the reasonable attorney’s
fees and costs incurred by this party in connection with the contempt
proceeding.â€
