If Second Retainer Agreement Signed By Client, Attorneys Lien Did Exist.
Majlessi v. Parman, Case No. B241063 (2d Dist., Div. 3 July 12, 2013) (unpublished) is a case where the lower court granted summary judgment across the board when a discharged personal injury attorney sued successor attorneys to honor an attorneys’ lien in a second retainer agreement that attorney claimed was signed by discharging client. The lower court credited client’s declaration that he never signed the retainer; without such a contractual relationship, no recovery could be allowed, reasoned the trial judge.
On appeal, the summary judgment was reversed.
The reason had to do with the very nature of SJMs, which cannot be used to fact decide rather than decide if a material issue for trial exists. Although client’s declaration did serve to shift the burden of production of contrary evidence to plaintiff attorney, plaintiff did submit proof in the form of another declaration from his former legal assistant where she testified about seing client sign a second retainer agreement in her presence. This certainly presented a contested issue which would need to be decided at trial. However, because client discharged former attorney, his recovery was limited to quantum meruit for pre-discharge services. (Fracasse v. Brent, 6 Cal.3d 784, 791 (1972); Weiss v. Marcus, 51 Cal.App.3d 590, 598 (1975).)
The appellate court also had an interesting discussion about whether de novo or abuse of discretion was the correct standard of review when scrutinizing evidentiary rulings in connection with SJMs. It observed that our state supreme court expressly has left open which review standard applies in Reid v. Goggle, Inc., 50 Cal.4th 512, 535 (2010); see also the concurring decision of Justice Mosk in Howard Entertainment, Inc. v. Kudrow, 208 Cal.App.4th 1102 (2012) reasoning that the abuse of discretion standard should apply. However, the Majlessi panel also explained that prejudice must be shown from any erroneous evidentiary ruling. Using that standard, the only prejudice came from sustaining an objection to the former legal assistant’s declaration which created an issue of triable fact. Once that testimony was factored in, the summary judgment grant had to be overturned.