SURJIT P. SONI, Plаintiff and Appellant, v. WELLMIKE ENTERPRISE CO. LTD. et al., Defendants and Respondents.
No. B242288
Second Dist., Div. Three.
Mar. 26, 2014.
A petition for a rehearing was denied April 24, 2014, and appellant‘s petition for review by the Supreme Court was denied June 11, 2014, S218345.
224 Cal.App.4th 1477
KLEIN, P. J.
The Soni Law Firm, M. Danton Richardson and Leo E. Lundberg, Jr., for Plaintiff and Appellant.
WHGG, Ellen J. Wang and John D. van Loben Sels for Defendants and Respondents.
OPINION
KLEIN, P. J.---Plaintiff and appellant Surjit P. Soni (Mr. Soni) doing business as The Soni Law Firm (hereafter, Soni or the Soni firm) appeals a postjudgment order denying its motion for an award of attorney fees as against Wellmike Enterprise Co. Ltd. and Mike Chen (collectively, Wellmike).
After prevailing in its action against Wellmike to recover unpaid attorney fees, the Soni firm sought to recover attorney fees as the prevailing party, pursuant to the attorney fee provision in the retainer agreement. Mr. Soni contended he was a sole practitioner who retained other attorneys to represent his interests. The trial court denied recovery on the ground attorney fees were not recoverable because Soni operated as a law firm which was represented in this litigation by employees or associates of the firm, rather than by outside сounsel. (Trope v. Katz (1995) 11 Cal.4th 274 [45 Cal.Rptr.2d 241, 902 P.2d 259] (Trope); Carpenter & Zuckerman, LLP v. Cohen (2011) 195 Cal.App.4th 373 [124 Cal.Rptr.3d 598] (Carpenter).)
Substantial evidence supports the trial court‘s determination Soni operated as a law firm and that the attorneys who represented the law firm in this action were its employees. Because the law firm was represented by its own employees or associates, the trial court properly held attorney fees were not recoverable by Soni. The order is affirmed.
Soni performed legal services for Wellmike. Soni later sued Wellmike to recover unpaid legal fees, and sought damages of $28,408. Soni fully prevailed. Following a nonjury trial, the trial court awarded Soni damages for breach of contract in the amount of $28,384. The judgment entered February 9, 2012, provided attorney fees and costs were to be requested by formal motion.
On or about March 20, 2012, Soni filed a motion for attorney fees, seeking $120,912 as the fees it allegedly “incurred in connection with this case.” Soni invoked paragraph IV.B of its “Attorney-Client Agreement,” which states in relevant part:
“Collection Expenses--Collections expenses and/or legal fees incurred in the collection of overdue balances (including fees for THE SONI LAW FIRM attorney, law clerk and pаralegal time, to the extent authorized by law) will be paid by the delinquent client. Such expenses and fees shall include those of our in-house personnel as well as those of any outside agency which we may employ.” (Italics added.)
Soni‘s moving papers acknowledged the general rule that a party cannot recover fees for self-representation. However, Soni contended “Mr. Soni is a sole proprietorship and did not represent himself. Rather, he was represented by other attorneys and he is entitled to recover the fees for their work.”
In opposition, Wellmike argued thаt Soni‘s attorney fee provision limited recovery of the fees of its own in-house personnel “to the extent authorized by law.” Here, Soni, the law firm plaintiff, represented itself through its in-house personnel, and therefore was prohibited from recovering attorney fees incurred in prosecuting its lawsuit. Wellmike contended Soni was trying to circumvent the prohibition on recovery of attorney fees for self-representation by claiming that as a sole proprietorship, the Soni firm was not a law firm but merely a business name adopted by Mr. Soni, and therefore any fees paid tо Attorneys Richardson, Lundberg and Perez were fees attributable to the representation of Mr. Soni rather than the Soni firm.
Wellmike cited the deposition testimony of Mr. Soni to show that Attorneys Richardson, Lundberg and Perez were employees of the Soni firm and that they worked on this case for the interest of the firm. Wellmike further argued that in any event, the amount of the fee request was excessive.
On April 19, 2012, the matter came on for hearing and was taken under submission. Later, the trial court entered an order denying Soni‘s motion for attorney fees, stating: “Although ‘The Soni Law Firm’ is identified as the fictitious business name for Mr. Soni, there is ample evidence that it operates
This appeal followed.
CONTENTIONS
Soni contends he was not self-represented and therefore was entitled to an award of attorney fees as the prevailing party. Soni‘s basic contention is that the trial court erroneously viewed Soni as a “firm,” rather than as an individual doing business under a fictitious name, and treated the fiction of a business name as it if were a separate entity.
DISCUSSION
1. Standard of appellate review.
Generally, an order granting or denying an award of attorney fees is reviewed under the abuse of discretion standard of review. (Carpenter, supra, 195 Cal.App.4th at p. 378.) However, the determination of whether the criteria for an award of attorney fees and costs have been met is a question of law for our de novo review. (Ibid.; Sessions Payroll Management, Inc. v. Noble Construction Co. (2000) 84 Cal.App.4th 671, 677 [101 Cal.Rptr.2d 127].) As for any disputed factual issues, the trial court‘s findings are reviewed under the substantial evidence rule and must be affirmed if supported by substantial evidencе. (Carpenter, supra, at p. 378.)
2. Overview of pertinent case law.
a. No recovery of attorney fees by pro se attorney litigants.
The issue presented on appeal involves a line of cases dealing with attorney fee awards to attorney litigants, beginning with the Supreme Court‘s decision in Trope, supra, 11 Cal.4th 274.
In that case, a law firm acting in propria persona successfully sued the firm‘s former client to recover unpaid fees. (Trope, supra, 11 Cal.4th at p. 278.) Following entry of judgment in their favor, the attorney plaintiffs moved for an award of attorney fees under the attorney fees provision in the
On review, the Supreme Court framed the issue as “whether an attorney who chooses to represent himself--and therefore does not pay or become liable to pay any sum out of pocket for such representation--can nevertheless recover ‘reasonable attorney‘s fees’ under [
Trope concluded that to allow pro se attorney litigants to recover fees to compensate them for their time would result in disparate treatment of attorney and nonattorney pro se litigants, and reasoned as follows: “Let us assume for the sake of discussion that ... an attorney litigant devotes as much time and effort to litigating a matter on his own behalf as he does to litigating a case on behalf of a client, and that his time is equally valuable whether he is acting on behalf of himself or of a client. It does not necessarily follow from this premise, however, that he is entitled to receive compensation from his opponent simply because the time he devotes to litigating a matter on his own behalf has value. The time that a doctor, for example, spends litigating a case on his own behalf also has value, both to the doctor himself and to society generally, for that time could otherwise be spent treating the sick or pursuing medical research for the benefit of all; an architect‘s time could otherwise be spent designing or building houses; a painter‘s time could otherwise be spent creating works of art for future generations to enjoy. However, it is clear that when it enacted [
b. Trope rulе does not preclude corporate litigant from recovering for services of in-house counsel.
The Supreme Court in PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084 [95 Cal.Rptr.2d 198, 997 P.2d 511] (PLCM) decided an issue unresolved by Trope--whether a corporate litigant represented by in-house counsel, i.e., counsel who is an employee of the party, can recover attorney fees under
In affirming the award of attorney fees, the Supreme Court in PLCM, supra, 22 Cal.4th 1084, concluded that none of the factors that supported the denial of the fee award to the pro se attorney litigant in Trope, supra, 11 Cal.4th 274, was present in the case before it. “There is no problem [in this case] of disparate treatment; in-house attorneys, like private counsel but unlike pro se litigants, do not represent their own personal interests and are not seeking remuneration simply for lost opportunity costs that could not be recouped by a nonlawyer. A corporation represented by in-house counsel is in an agency relationship, i.e., it has hired an attorney to provide professional legal services on its behalf. Nor is there any impеdiment to the effective and successful prosecution of meritorious claims because of possible ethical
c. Attorney litigant represented by other members of his or her firm in a personal matter may recover fees.
In Gilbert v. Master Washer & Stamping Co., supra, 87 Cal.App.4th 212 (Gilbert), a case Soni сontends is directly on point, the court held “a lawyer represented by other members of his law firm is entitled to recover reasonable attorney fees where the representation involved the lawyer‘s personal interests and not those of the firm.” (Id. at p. 214, italics added.) In Gilbert, the tenant in a consolidated landlord-tenant case sued his landlord and the landlord‘s attorney, Gernsbacher, alleging, inter alia, that Gernsbacher had wrongfully prevented the tenant from recovering its property from the leased premises. (Ibid.) Gernsbacher‘s alleged misconduct involved Gernsbacher‘s “personal interests and not those of the firm.” (Ibid.) Gernsbacher obtаined a judgment in his favor and filed a motion for an order fixing attorney fees as costs. (Id. at p. 216.) The trial court, citing Trope, supra, 11 Cal.4th 274, denied Gernsbacher‘s attorney fees motion on the ground he was represented by his own law firm. (Gilbert, at p. 216.)
The appellate court reversed, concluding Trope did not support the trial court‘s denial of attorney fees to Gernsbacher, who had been represented by other attorneys in his firm. “Having examined the policy considerations leading to the Trope and PLCM Group decisions, we apply those considerations to the case before us. We hold Gernsbacher, as an attorney litigant represented by other attorneys in his firm, is not a litigant in propria persona and thus Trope does not bar his recovery of reasonable attorney fees under
In reaching this conclusion, the court in Gilbert rеasoned that an attorney who is represented by other attorneys in his firm ” ‘incurs’ fees within the meaning of
A similar case on which Soni relies is Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44 [100 Cal.Rptr.3d 152] (Gorman). Gorman held that Trope did not bar an attorney litigant from recovering fees incurred for the services of other attorneys and paralegals hired by the attorney to represent him, even if those other attorneys and paralegals worked for the attorney litigant‘s law firm. (Id. at p. 96.) In that case, two homeowners, Attorney Gorman and his wife, sued a contractor and numerоus others alleging defective construction of the plaintiffs’ residence. (Gorman, supra, 178 Cal.App.4th at pp. 52-53.) Attorney Gorman and his firm represented the plaintiffs. (Id. at p. 93.) During the course of the litigation, the Gorman firm associated in the law firm of Bowman and Brooke. The plaintiffs also retained Attorney Alwaya to render opinions about insurance coverage. In addition, Attorney Janke appeared at several depositions on behalf of plaintiffs. (Id. at p. 54.) Certain defendants, including the contractor, entered into a settlement agreement with the plaintiffs that included a provision that the plaintiffs were entitled to аpply for an award of attorney fees and costs. (Id. at pp. 52-53.)
The Gorman court ruled the plaintiffs could not recover fees for the time Attorney Gorman personally spent representing himself and his wife. (Gorman, supra, 178 Cal.App.4th at pp. 93-97.) But, relying on Gilbert, supra, 87 Cal.App.4th 212, the Gorman court held the plaintiffs could recover attorney fees for the time expended by other attorneys the plaintiffs hired to represent them, including attorneys and paralegals in Gorman‘s law firm. (Gorman, at pp. 95-96.) “We do not understand contractor on appeal to renew its efforts to distinguish Gilbert. It argues only that ‘nothing in the Gilbert case supports the view that [plaintiffs] in this case are entitled to recover fees for the work performed personally by appellant Gorman.‘. . . We believe that Trope[, supra, 11 Cal.4th 274] does not preclude the recovery of fees for other attorneys and paralegals hired by [Attorney] Gorman to represent him, even if they work in his law firm. [Citations.]” (Gorman, supra, 178 Cal.App.4th at p. 96.)
d. No recovery of attorney fees where law firm is represented by members of the firm.
Witte v. Kaufman (2006) 141 Cal.App.4th 1201 [46 Cal.Rptr.3d 845] (Witte) reversed an award of attorney fees to a law firm, KLA, whose attorneys represented the firm on a successful special motion to strike. Witte reasoned: “Here, unlike PLCM Group and Gilbert, but like Trope, there is no
Thus, Witte is consistent with the basic rule in Trope, disallowing recovery by a law firm which represents itself in litigation.
e. No right to attorney fees where law firm and its partners are represented by an associate in a matter involving the interests of their firm.
We conclude our survey of pertinent case law with Carpenter, supra, 195 Cal.App.4th 373. There, the trial court held a law firm and its two partners, who had been represented in litigation by an associate of the firm, had in effect represented themselves and therefore could not recover attorney fees. (Id. at p. 375.) Carpenter upheld the denial of attorney fees for services rendered by the associate to the firm and its partners. (Id. at p. 376.)
Plaintiffs contended that because the associate was not a partner in the law firm and did not have any financial interest in that firm or have any personal liability dependent on the outcome of the underlying litigation, plaintiffs were entitled to recover attorney fees based on the services she rendered on the prior appeal. (Carpenter, supra, 195 Cal.App.4th at p. 384.) “According to plaintiffs, for purposes of this appeal, it does not matter whether, as they contended below, Ms. Klein was an independent contractor or, as the trial court found, an associate attorney of the law firm plaintiff. From plaintiffs’ perspective, Ms. Klein‘s representation of them in either capacity is not the equivalent of self-representation, and they therefore argue they are not precluded under Trope, supra, 11 Cal.4th 274 from recovering attorney fees. Relying on the recent ruling in Gorman, supra, 178 Cal.App.4th 44--that allowed an attorney litigant to recover attorney fees for services rendered on his behalf by associates and paralegals of his firm--plaintiffs contend that they are entitled to the requested fee award here.” (Carpenter, supra, 195 Cal.App.4th at p. 384.)
Carpenter reasoned, “Contrary to plaintiffs’ assertion, the issuе of whether Ms. Klein was acting in her capacity as an associate attorney or as an
“Plaintiffs’ reliance on Gorman, supra, 178 Cal.App.4th 44 is misplaced. As discussed above, the associate attorney in that case represented Attorney Gorman in connection with a personal matter concerning the defective construction of his home. Thus, the associate was not representing the interests of the law firm for which he worked, but rather the personal interests of one of its partners. (See id. at p. 91.) As the court in that case concluded, the associatе‘s legal services on behalf of Attorney Gorman and his wife were analogous to the services rendered to the attorney litigant by other members of his firm in Gilbert, supra, 87 Cal.App.4th 212. In that case, the court emphasized that those other members of the firm represented the attorney litigant‘s personal interests, whereas in Trope, supra, 11 Cal.4th 274, the partner represented his law partnership‘s interest in a collection action.
“Ms. Klein was representing the interests of the law firm for which she worked--not just the personal interests of individual partners in that firm, such as in Gilbert, supra, 87 Cal.App.4th 212. Although she was not a partner in that firm, she, as an employee of thе firm, acted on behalf of the firm in protecting it from potential liability from defendants’ cross-claims. Moreover, unlike the in-house counsel in PLCM, supra, 22 Cal.4th 1084, who was employed by and represented the interests of the corporation, Ms. Klein‘s status as an associate suggests that she was hired primarily to represent the interests of the clients of the plaintiff law firm. There is no suggestion that she functioned as in-house counsel to the firm. Based on Ms. Klein‘s status as an associate, the law firm and its partners, in seeking to recover the reasonable value of her services on appeal, in effeсt, were seeking to recover ‘lost opportunity costs’ (PLCM, supra, 22 Cal.4th at p. 1093; see Gilbert, supra, 87 Cal.App.4th at p. 221), i.e., the value they would have received from a client had Ms. Klein expended a comparable amount of hours representing that client‘s interests. The involvement of ‘lost opportunity costs’ is one rationale for denying attorney fees for self-representation. (PLCM, supra, 22 Cal.4th at p. 1093.) Therefore, notwithstanding that Ms. Klein was not a partner of the law firm plaintiff with a direct financial interest in the outcome of the claims asserted against it, she was an employee of that firm hired primarily to perform services for firm clients and, presumably, to generate profits for the firm. This status distinguishes her from the ‘independent third party’ in-house
f. Summary.
The teaching of Trope and its progeny is that law firms and attorney litigants are precluded from recovering attorney fees for self-representation. (Trope, supra, 11 Cal.4th 274; Witte, supra, 141 Cal.App.4th 1201; Carpenter, supra, 195 Cal.App.4th 373.)
On the other hand, a corporate litigant which is represented by in-house counsel may recover attorney fees. (PLCM, supra, 22 Cal.4th 1084.)
Further, attorney litigants who retain other attorneys to represent their personal interests may recover attorney fees, just like nonattorney litigants. Thus, an attorney litigant who is represented by other attorneys in a matter involving the attorney‘s personal interests may recover attorney fees, even if represented by other attorneys within the firm. (Gorman, supra, 178 Cal.App.4th at pp. 91, 96 [attorney litigant was represented by an associate in connection with a personal matter concerning defective construction of his hоme]; Gilbert, supra, 87 Cal.App.4th at p. 214 [attorney litigant was sued personally for allegedly preventing lessee from recovering its property from the leased premises].)
Bearing these principles in mind, we turn to Soni‘s arguments on appeal.
3. Record supports trial court‘s denial of Soni‘s request for attorney fees; trial court properly rejected Soni‘s claim he was a sole practitioner who hired other attorneys to represent his interests.
As indicated, Mr. Soni asserts he is merely an individual doing business under a fictitious name as The Soni Law Firm, rather than a law firm, and that he employed outside counsel or independеnt contractors to represent him in recovering fees owed by Wellmike. He argues that because he was not self-represented, he is entitled to an award of attorney fees as the prevailing party, pursuant to the attorney fee provision in the retainer agreement.
To reiterate the trial court‘s ruling, “Although ‘The Soni Law Firm’ is identified as the fictitious business name for Mr. Soni, there is ample evidence that it operates as a law firm and that the attorneys who represented
a. Pertinent evidence.
The evidence submitted by Wellmike in support of its opposition to Soni‘s motion for attorney fees included the following:
(1) A page from the State Bar Web site showing Mr. Soni‘s contact information is The Soni Law Firm at 35 North Lake Avenue, Suite 720, in Pasadena.
(2) Pages from the State Bar Web site showing The Soni Law Firm‘s address is also the contact information for Attorneys Miсhael Danton Richardson and Leo E. Lundberg.
(3) The caption of Soni‘s pleading indicating that Lundberg and Richardson of The Soni Law Firm were attorneys for The Soni Law Firm.
(4) A declaration by Richardson, filed in this litigation in October 2010, in support of Soni‘s motion to be relieved from waiver of objections to discovery. In the declaration, Richardson stated, under penalty of perjury: “I am a member of The Soni Law Firm (‘SONI‘), and I serve as counsel to SONI as the Plaintiff in this action.” (Italics added.)
This evidence supports the trial court‘s factual finding that Soni operated as a law firm, and also supports the triаl court‘s rejection of Mr. Soni‘s claim that he was a sole practitioner who hired outside counsel/independent contractors to represent his interests in the collection action against Wellmike. On this record, the trial court properly found, “Although ‘The Soni Law Firm’ is identified as the fictitious business name for Mr. Soni, there is ample evidence that it operates as a law firm and that the attorneys who represented the law firm in this action are its employees.”3
It is settled that Mr. Soni doing business as The Soni Law Firm would not be able to recover contractual attorney fees had he been represented by Mr. Soni, a sole practitioner. It is also settled that if The Soni Law Firm had represented itself in litigation, it would not be able to recover for its own attorney fees. (Trope, supra, 11 Cal.4th 274; Witte, supra, 141 Cal.App.4th at p. 1211; Gorman, supra, 178 Cal.App.4th at p. 93.)
However, Soni contends that like the attorney litigants in Gilbert and Gorman, he is entitled to recover for the fees incurred for the services of attorneys he employed to recover fees owed by Wellmike. Soni‘s reliance on these cases, summarized ante, is clearly misplaced.
In Gorman, an associate attorney represented Attorney Gorman in connection with a personal matter concerning the defective construction of his home. (Gorman, supra, 178 Cal.App.4th at pp. 53-54.) Thus, the associate was not representing the interests of the law firm for which he worked, but rather the personal interests of one of its partners.
Similarly, in Gilbert, other members of his firm represented Attorney Gernsbacher‘s “personal interests” in landlord/tenant litigation; the representation “involved the lawyer‘s personal interests and not those of the firm.” (Gilbert, supra, 87 Cal.App.4th at p. 214.) Gilbert recognized it would be “inequitable in the extreme to permit Gernsbacher to recover fees incurred by outside counsel, but deny him such recovery merely because his counsel are members of the same law firm as he.” (Id. at p. 223.)
In contrast, here, as in Carpenter, the associates of the law firm represented the interests of the firm for which they worked, as opposed to the personal interests of a member of the firm. (Carpenter, supra, 195 Cal.App.4th at p. 385.) In this litigation, Soni‘s associates were working to recover some $28,000 in attorney fees for legal services the Soni firm had rendered to Wellmike. Thus, in working to recover fees owed by Wellmike, the associates were performing services for the law firm that employed them. Accordingly, this case is governed by the general rule that a law firm that represents itself in litigation cannot recover its own attorney fees. (Trope, supra, 11 Cal.4th 274.)4
The order denying Soni‘s motion for attorney fees is affirmed. Respondents shall recover their costs on appeal.
Kitching, J., and Aldrich, J., concurred.
A petition for a rehearing was denied April 24, 2014, and appellant‘s petition for review by the Supreme Court was denied June 11, 2014, S218345.