Anna Y. v. Philip T.
Filed 6/25/12 Anna Y. v. Philip T. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 SEVEN
ANNA Y.,
Petitioner,
v.
PHILIP T.,
Respondent.
LAW OFFICES OF JEFFREY W. STEINBERGER,
Appellant.
B233524
(Los
Angeles County
Super. Ct.
No. BF 039867)
APPEAL
from an order of the Superior Court
of
County. Rafael A.
Ongkeko, Judge. Reversed and remanded.
Law
Offices of Jeffrey W. Steinberger, Jeffrey W. Steinberger and R. William Shpall
for Appellant.
Jaffe
and Clemens, William S. Ryden and Nancy Braden-Parker for Respondent.
No
appearance by Petitioner.
__________________________________
In
a paternity proceeding brought by
Anna Y. against Philip T. (respondent), the trial court denied a motion for
attorneys fees brought by Anna’s former counsel, the Law Offices of Jeffrey
Steinberger (appellant).
name="_ftnref1" title="">[1] We reverse the order denying the motion and
remand the matter for a hearing to determine the amount of fees due to
appellant.
On
July 13, 2010, Anna,
represented by the law firm of Phillips & Jessner (hereinafter the P &
J firm), filed a petition to establish respondent’s paternity of her minor
child.
On
October 5, 2010, Anna filed
a notice that appellant would be associated as co-counsel with the P & J firm. On that same day, the P & J firm, on
behalf of Anna, filed a notice of an application for Order to Show Cause (OSC)
for attorney fees and costs. The
supporting declarations requested fees to be paid to appellant, the P & J
firm, and the accounting firm of Gursey/Schneider. Anna sought fees for appellant in the amount
of $168,920 for past services,
name="_ftnref2" title="">[2]
$25,000 for future services and approximately $5,200 for two additional attorneys
retained by appellant for limited services.
The
hearing on the OSC was set for November
16, 2010, but it was later continued until January 25, 2011.
On
January 18, 2011, the P
& J firm, on behalf of Anna, filed a Notice of Disassociation of appellant.
the P & J firm on January 14, 2011. Also on January 18, 2011, the P & J firm filed a reply
memorandum of points and authorities in support of the OSC for fees which
stated in a footnote: “[Anna] has recently disassociated [appellant] as counsel
of record in this case and has withdrawn her request for attorney’s fees and
costs associated with its prior representation of her.â€
On
January 25, 2011, the date
of the hearing on the OSC, appellant filed a memorandum of points and
authorities in support of the court’s jurisdiction to hear its request for
fees. In its points and authorities, it
stated that it was notified orally on January
14, 2011, of the disassociation.
Appellant
appeared at the January 25th hearing, along with the P & J firm. There is no reporter’s transcript of the
hearing in the record, but a subsequent ruling signed by the court indicates
that “At [the P & J firm]’s suggestion so as not to detract from the more
pressing child support issue, and due in part to [appellant]’s late filing and
service on the day of the hearing of its brief. . . the court and all counsel
agreed to consider [appellant]’s motion separately in a further hearing. [Appellant]’s request for fees was taken
off-calendar, without prejudice to a renewed motion.†The court then awarded fees to the P & J
firm and to the accountants.
On
February 15, 2011,
appellant filed a notice of a “Renewed Borsonâ€
name="_ftnref4" title="">[4]
motion for attorney fees, set for hearing on March 21, 2011.
Respondent filed an opposition, and appellant filed a reply memorandum
of points and authorities. Neither Anna
nor the P & J firm filed any responsive papers.
At
the hearing on March 21st, counsel from the P & J firm stated that, “When
we were in court on the Order to Show Cause for . . . the attorney’s fees and
for the child support. . . [t]here were significant issues that were raised. .
. regarding halving the amount of income that was available to the
respondent. So I felt that it was in
[Anna]’s best interests to disassociate and withdraw her support for that
motion at that time without prejudice. . . .
But in any event, our position is that we are supportive of the request
of former counsel and that we would be pleased if the court were to award fees
against the respondent.â€
Respondent
argued that Anna had previously withdrawn her support for the motion for fees
and that appellant had no standing to bring the motion and the court took the
matter under submission.
On
April 5, 2011, the court
ruled that it had no jurisdiction to hear and that appellant had no standing to
bring the renewed motion for fees. It
explained in its written ruling that the motion should have been filed before
Anna formally disassociated appellant.
Once Anna withdrew her request for fees, appellant had no independent
standing to seek such fees. Appellant
appealed this ruling.
Family
Code section 270 provides that “If a court orders a party to pay attorney’s
fees or costs under this code, the court shall first determine that the party
has or is reasonably likely to have the ability to pay.†Family Code section 272 provides that when
the court determines that one of the parties shall be liable for the attorney
fees and costs of the other party, the court has the discretion to specify that
the fees and costs be paid in whole or in part to the attorney.
We
review the trial court’s ruling on a motion for attorney fees and costs for an
abuse of discretion. (
Cal.3d 762, 768-69; In re Marriage of
Rosen (2002) 105 Cal.App.4th 808, 829.)
In
In re Marriage of
discharged her attorneys. After their
discharge, the attorneys moved for permission to withdraw and requested on the
wife’s behalf that the husband be directed to pay them additional attorneys
fees. The wife did not expressly consent
to the motion for fees, but did not object.
At the hearing, the court granted the motion to withdraw and postponed
consideration of the fee request. The
wife subsequently substituted in new counsel and withdrew her consent to
proceed with the fee request made by the discharged attorneys. New counsel then negotiated a settlement in
which the former attorneys were allowed to recover fees. The husband appealed, asserting that the
award of fees was in excess of the trial court’s jurisdiction. On appeal, the court noted that since the
request for fees had been made before new counsel had been substituted in, the
former attorneys continued to represent the wife for purposes of winding up the
relationship, which included making the fee motion on her behalf. (Id.
at p. 637.) The appellate court also
noted that the wife’s objection to the motion surfaced only at the time the fee
motion was heard and reasoned that her failure to object earlier led her former
attorneys to believe that they had the authority to act on her behalf in
pursuing the fee request. (
jurisdiction to make the award. (
Cal.2d 610, the Supreme Court held that discharged attorneys had no proprietary
interest in the fees, but their right to the fees was derived from the right of
the former client/spouse. (
was to initiate a separate action against their former client to recover
fees. The Borson court distinguished Meadow
on the basis that the wife had previously discharged the attorneys and
affirmatively opposed the payment of fees.
In
Borson, the motion for fees was filed
at the same time as the motion to withdraw as counsel. (In re
Marriage of Borson, supra, 37 Cal.App.3d at p. 637.) Here, appellant’s first request for fees was
filed several months before the notice of disassociation was filed. There was no need to substitute new counsel
after appellant was disassociated since co-counsel, the P & J firm, remained
counsel of record.
title="">[5]
The
trial court’s denial of the motion was based on a lack of standing by appellant
and a lack of jurisdiction of the court to hear the motion. It held that “[t]he absence of a
disassociation on 1/18/11 is fatal and cannot be saved by the OSC for fees
filed more than three months earlier.â€
However, in examining the record closely, it is apparent that at the January 25, 2011, hearing on the
first OSC for fees, the trial court expressly took the matter of appellant’s
fees off calendar without prejudice, with the understanding that the motion
would be resubmitted. Neither the
memorandum of points and authorities in support of fees filed on January 25, 2011, nor the “renewed
new motions, but renewals of the first request made on October 5, 2010.
Therefore, the request for fees was technically made before appellant
was disassociated as counsel.
Respondent
cites In re Marriage of Read (2002)
97 Cal.App.4th 476 in support of the trial court’s ruling. He also asserts that appellant does not have
standing to bring this appeal, citing In
re Marriage of Tushinsky (1988)
203 Cal.App.3d 136).
In
Read, supra, 97 Cal.App.4th 476, the
wife discharged her attorneys and ordered them to withdraw a pending
application for OSC for attorney’s fees and to cease all work on her
behalf. After a substitution of attorney
form was filed, the discharged attorneys continued to pursue the fee award over
the wife’s objection. The court of
appeal concluded that there was no basis upon which the discharged attorney
firm “could reasonably believe†it had implied authority to pursue the request
on wife’s behalf. (Id. at p. 481.)
In
Tushinsky, supra, 203 Cal.App.3d 136,
an attorney representing the wife in a dissolution action filed an application
for an order to show cause for attorneys fees and costs. The attorneys were also engaged to represent
the wife in another related lawsuit.
While the application was on file, but before a hearing was held, the
wife engaged co-counsel, then
discharged the first attorneys. The
motion for fees was taken off calendar.
The attorneys filed a motion to restore the hearing on the order to show
cause. Both the wife and the husband
objected to the restoration to calendar of the motion for fees. (Id.
at p. 140.) The commissioner granted the
motion to restore the hearing on the order to show cause for fees as it applied
to the dissolution action. Later the
commissioner awarded the discharged attorneys only a portion of the fees and
the former attorneys appealed. The court
of appeal held that the former attorneys were not “aggrieved†within the
meaning of Code of Civil Procedure section 902 and thus had no standing to
appeal. It cited Meadow v. Superior Court, supra,
59 Cal.2d 610 for the proposition that the right to such fees and costs belongs
to the spouse to whom they were awarded, and not the attorney, even if the
award is made directly payable to the attorney.
(Tushinsky, supra, 203
Cal.App.3d at p. 142.)
Cases
since Tushinsky, however, employ the
as a question of consent by the client.
In In re Marriage of Erickson and Simpson (2006) 141 Cal.App.4th 707
filed a motion requesting attorney fees, then filed a notice of substitution of
attorneys. The hearing on the motion for
fees was not heard until after the substitution form was filed. The Erickson
court reviewed the decisions in Meadow,
Borson, and Read and concluded
that the “pivotal factor†in determining whether a trial court has jurisdiction
to award fees to a discharged attorney is whether the client authorized the
former attorney to make the fee request on the client’s behalf. (In re
Marriage of Erickson and Simpson, supra, 141 Cal.App.4th at p. 710.)
an attorney’s right to fees in a dissolution action is derivative of the
client’s right, once judgment is entered, the attorney can enforce the fee
award directly. The Green court reasoned that since the right to fees is derived from
the client’s right, the client must expressly or impliedly authorize a
discharged attorney to move for such fees, citing Erickson and Simpson. (
Therefore,
we determine whether appellant had the full consent and authorization of Anna
when it requested payment of fees. From
objection indicated her implied consent to the October 2010 request for fees (
Cal.App.3d at pp. 637-638). Anna then
withdrew her consent to the motion in January 2011, before the hearing on the
OSC. At the hearing, there was no ruling
on appellant’s right to fees, but the matter was taken off calendar, without
prejudice. When the motion was renewed,
Anna did not file an objection and later explicitly stated at the hearing that
she did not withdraw the motion because she objected to the payment of fees,
and that she now supported the motion.
The
facts of this case do not lead to the conclusion that appellant had no basis
upon which it could reasonably believe that it was acting against Anna’s
express wishes. At the time the motion for fees was filed on appellant’s behalf
in October 2010, appellant reasonably believed that it had Anna’s consent to
request fees. Unlike
appellant to withdraw its request and Anna did not object. Any doubt about Anna’s consent to the request
for fees was dispelled by her oral representation at the March 21, 2011,
hearing that she supported the granting of the motion and only withdrew her
request in January because of tactical issues, not because she opposed the
award of fees. Appellant therefore had
standing to request fees and the trial court had jurisdiction to award
them. The trial court erred by not
considering appellant’s motion. The
matter must therefore be remanded for a determination of whether appellant is
entitled to fees in whole or in part, and if so, whether respondent should pay
for them.
The
order denying appellant’s motion for an award of fees is reversed and the cause
is remanded for further proceedings consistent with the views expressed
herein. Costs on appeal are awarded to
appellant.
WOODS,
Acting P. J.
We concur:
ZELON, J. JACKSON,
J.
name="_ftn1" title="">
[1] Because
this matter originated as a paternity case, we shall use initials for the
parties’ last names; first names are used for ease of reference.
name="_ftn2" title="">[2] Appellant’s
statements showed fees of $176,420, but there was a credit applied.
