Trope Prohibition Did Not Apply.
Trope v. Katz, 11 Cal.4th 274, 292 (1995) can strike fears into the heart of litigators winning hard fought battles for their own interests—it held that a law firm that is represented in litigation by its member attorneys cannot recover attorney’s fees under Civil Code section 1717. Trope has been applied in the SLAPP area, barring victorious in pro per attorneys from recovering fees under Code of Civil Procedure section 425.16 (the provision requiring an award of fees to a prevailing SLAPP defendant) under certain circumstances. See Taheri Law Group v. Evans, 160 Cal.App.4th 482, 494 (2008). Trope was front and center in the next case, but the particular facts demonstrated that an employee of a victorious SLAPP attorney-employer—who was specially retained for the SLAPP proceedings and had an attorney-client relationship with employer—was not disqualified from seeking mandatory attorney’s fees under section 425.16, especially where she was not a true partner in the employer’s law firm.
The case under examination, Seltzer v. Gwire, Case No. A119049 (1st Dist., Div. 1 Nov. 13, 2009, received for posting Dec. 31, 2009 but posted on Jan. 4, 2010) (unpublished), was one where an attorney won a SLAPP motion directed to a partial interference claim in a multi-count complaint. (A victory won on appeal, after an appellate court reversed a denial of a SLAPP motion on this count.) Throughout the special proceedings, attorney had been represented by an employee attorney in his office, who was never a partner in the firm, did not secure her own malpractice insurance, and used his law office’s billing software to keep track of her time. (She may have been referred to as a partner, but actually was not a partner in the firm.) Eventually, the lower court (a different judge than the original one considering the SLAPP merits) awarded attorney a total of $90,679 in attorney’s fees plus costs for being the SLAPP victor. Opponent, being unhappy and likely miserable, appealed.
Result: Fee award affirmed upon review.
The main challenge on appeal was the Trope issue. Although dropping several footnotes suggesting that Trope was limited to Civil Code section 1717 settings (slip opn., p. 6 n.4) and that certain decisions in the area were imprecise in defining who were “members in a firm” (slip opn., p. 8 n.5), the Court of Appeal determined that employee did not meet the type of self-representation condemned in Trope. Rather, employer had an attorney-client relationship with and actually incurred fees with the employee attorney, being indistinguishable from the situation giving rise to section 1717 fees in Gilbert v. Master Washer & Stamping Co., 87 Cal.App.4th 212, 221-222 (2001). “It is not the law … that an attorney cannot recover attorney fees if represented in litigation by his or her employee.” (Slip Opn., p. 8.)
Appellant also argued that the trial court did not make a full explanation for the basis of her fees ruling, but the appellate court determined there was no need for such a statement of decision under section 425.16. (E.g., Christian Research Institute v. Alnor, 165 Cal.App.4th 1315, 1323 (2008).)
Finally, it was not error that different judges determined the merits of the SLAPP motion and the fee motion. (See, e.g., Mann v. Quality Old Time Service, Inc., 139 Cal.App.4th 328, 337 n.3 (2006); Law Offices of Dixon R. Howell v. Valley, 129 Cal.App.4th 1076, 1085 n.5 (2005).)