In Carpenter & Zuckerman v. Cohen (May 10, 2011, B215544) __ Cal.App.4th __ [2011 DJDAR 6665] the court affirmed a decision denying attorney's fees to the plaintiff law firm and two of its partners on the ground that their representation by an associate in the firm constituted self-representation.
Plaintiff and two of its partners had moved to strike a cross-complaint filed against them. The special motion to strike was granted and defendant appealed. The appeal was dismissed as untimely and plaintiffs were awarded reasonable attorney's fees. Back in the trial court, plaintiffs contended that their lawyer on appeal was an independent contractor who entered into a contingency fee agreement under which she was entitled to any attorney's fees awarded by the court. No written contingency fee agreement was submitted, however, and the trial court considered a prior declaration filed by one of the plaintiffs in the case that identified the appellate lawyer as an associate in the firm. The court also took notice that the State Bar website showed the lawyer's address as that of the plaintiff law firm, and denied the request for fees.
Since the trial court's determination that the lawyer was an associate of the firm was supported by substantial evidence, the court of appeal concluded that the firm had represented itself in the prior appeal. Although the attorney was not a partner and had no financial interest in the firm, she was an employee of the firm hired primarily to perform services for the firm's clients and to generate profits for the firm. The associate was the "product" of the firm and was comparable to a sole practitioner representing himself or herself.
The court also rejected the argument that the individual plaintiffs were entitled to their fees, because the cross-complaint did not expose them to any liability separate from the potential liability of the firm, and there was no showing that the attorney performed any services on behalf of the individuals that were not also attributable to her representation of the firm.