Prior Appellate Decision Basically Sealed The Result, With The Trope Prohibition Also Requiring Denial Of Fees Relating To Another Law Firm Attorney Whose Personal Interests Were Not Implicated.
On May 25, 2019, we earlier posted on a prior decision which was implicated more recently in eGumball, Inc. v. Call & Jensen, Case No. G056650 (4th Dist., Div. 3 Oct. 10, 2019) (unpublished). In that earlier decision, our local Santa Ana appellate court ruled that an arbitrator’s denial of $1 million in fees to prevailing law firm was not legally reviewable given the arbitrator’s conclusions that the retainer fees clause did not encompass malpractice claims at issue in the arbitration and that the Trope prohibition against fee recovery for self-representation was triggered.
However, while the first appeal was festering, law firm sought fees for post-arbitration judicial proceeding activities, which the trial judge denied. That prompted another appeal by law firm.
The fee denial was affirmed, in a 3-0 decision authored by Justice Fybel.
The appellate panel had trouble discerning why law of the case or preclusion principles did not apply to judicial, postarbitration activities just as much as they applied to prior decisions by the arbitrator on related fee requests. (After all, preclusion principles do apply to arbitration awards. Thibodeau v. Crum, 4 Cal.App.4th 749, 755 (1992).) In fact, the panel found no meaningful distinction to upset application of prior rulings to the postarbitration fee request before it. With respect to the argument that fees were allowed for the law firm’s representation of one attorney at the firm, that was dispatched because the Trope self-representation bar was intact given that nothing showed the one attorney’s personal interests were at issue in the dispute. (Carpenter & Zuckerman, LLP v. Cohen, 195 Cal.App.4th 373, 375-376, 387-388 (2011).)