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Court of Appeal:
Counsel Is Not Liable Along With Client for Fee Award
Opinion Says Statute Mandating Award in Cases Where Wrong Party Is Named as Judgment Debtor Does Not Authorize Court to Hold Attorney Jointly Liable, Despite Allegations of Wrongdoing
By a MetNews Staff Writer
A trial judge erred in holding an attorney jointly and severally liable with his client for attorney fees ordered under a statute authorizing their award to the prevailing party in an action to remove a lien due to the instrument listing the wrong party as a judgment debtor, the Third District Court of Appeal held yesterday.
The court said that holding the lawyer accountable for the fees when the law is silent as to who is on the hook for them would be tantamount to a sanctions award, a request never expressly made in the proceedings despite the successful petitioner’s claims that the attorney “abused the system” by knowingly listing the wrong party.
At issue is Code of Civil Procedure §687.410 which provides that “[t]he court shall award reasonable attorney’s fees to the prevailing party” who successfully obtains the release of a lien on real property due to the owner being wrongly listed as the judgment debtor.
Michigan Judgment
Appealing the attorney fee award were Eric Alcorn and his Michigan attorney, David Findling, who petitioned to have a 2014 Michigan default judgment entered in California. The judgment related to a complaint filed by Alcorn against Tien Chin Yu Machinery Manufacturing Co. Ltd., a Taiwanese corporation (“TCY Taiwan”), for injuries sustained by Alcorn after his hand was pulled into a cardboard folding machine manufactured by the company.
Tien Chin Yu Machinery Co. Ltd, a Samoan corporation (“TCY Samoa”), was erroneously listed as the judgment debtor in Alcorn’s petition. TCY Samoa owns real property in Chino.
Alpine Superior Court Judge Thomas Kolpacoff granted TCY Samoa’s motion to vacate the judgment and to release the lien. He awarded $90,000 in attorney fees under §687.410 to TCY Samoa, holding Alcorn and Findling jointly and severally liable for the payment.
Justice Shama Hakim Mesiwala authored the unpublished opinion reversing the fee award as to Findling and affirming the judgment in all other respects. Acting Presiding Justice Elena J. Duarte and Justice Peter A. Krause joined in the opinion.
Question of Law
Mesiwala noted that Findling did not object to the award of attorney fees against him in the trial court but said that “we exercise our discretion to consider it because it raises a question of law based on undisputed facts.”
She wrote that “Section 697.410 is silent as to who owes the fee award” and pointed to case law interpreting other provisions calling for the award of attorney fees, saying:
“Case law instructs that (1) ‘silence on whether attorney fees may be assessed against counsel does not constitute statutory authority for sanctions against counsel’…; and (2) if the Legislature intends to make the losing party’s attorney liable for an attorney fee award, it knows how to say so.”
Unpersuaded by TCY Samoa’s assertion that the legislative history of §697.410 supports its view that Findling should remain liable, she remarked:
“We disagree for two reasons. First, TCY Samoa does not cite the legislative history of the measure that added section 697.410, instead citing to [chapter 639] that codified an affidavit of identity process….And second…that history does not support TCY Samoa’s position. Chapter 639 allowed a judgment creditor to identify the aliases of a judgment debtor through an affidavit of identity and to have any abstract of judgment or writ of execution extend to those aliases.”
She continued:
“The legislative history that TCY Samoa cites describes the text of section 699.510, subdivision (e), which entitles a person misidentified in an affidavit of identity to ‘the recovery of reasonable attorney’s fees and costs from the judgment creditor’ incurred in releasing the person’s property from a writ of execution. The phrase ‘from the judgment creditor’ makes clear that the attorney fees were intended to be chargeable against the creditor, not creditor’s counsel.”
Some Responsibility
TCY Samoa asserts that Findling “should be held responsible” because he “personally abuse[d] the system” and “refused to accept facts, law, and reality at any time, putting TCY Samoa to the unfair burden of defending itself against his tactics.”
Mesiwala commented that “TCY Samoa offers no authority to persuade us that section 697.410 allows a court to hold a party’s attorney responsible for its actions through the statute’s fee award language.”
Finding that such an award would amount to a sanctions order, she added that “TCY Samoa did not move for sanctions against counsel and nothing in the record suggests that the trial court intended to impose sanctions against counsel.”
The case is Alcorn v. Tien Chin Yu Machinery Co. Ltd, C097849.
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