Costs Against Plaintiff Also Narrowed To Law Firm’s Work On An IIED Claim.
What happened in Martin v. Hoge, Fenton, Jones & Appel, Case Nos. H050803 et al. (6th Dist. July 25, 2025) (unpublished) is that plaintiff brought a legal malpractice suit against two individual attorneys and their law firm, although plaintiff was non-suited as to one attorney, had an adverse summary adjudication granted against her individually on an intentional infliction of emotional distress (IIED) claim, and suffered an adverse jury verdict on the remainder of her claims as to one individual attorney and the law firm.
Law firm then filed a costs memorandum of $106,494.15 against her, which the lower court granted in full after plaintiff filed a motion to tax costs. Law firm only also filed an attorney’s fees under Civil Code section 1717 against Plaintiff individually, with the lower court granting 1717 fees of $318,219.64.
On appeal, the fee award went POOF! based on the Trope v. Katz prohibition [our Leading Case #12], given that the law firm had firm members represent the firm in the legal malpractice case. There are exceptions to Trope, such as for in-house counsel or for firm members who defend an individual member’s personal interests. However, those exceptions do not apply to member’s defending the law firm’s interests. Law firm tried to rely on a broad fees clause allowing recovery in Lockton v. O’Rourke, 184 Cal.App.4th 1051 (2010), but the appellate court found it distinguishable because the motion there was brought under CCP § 1021 (with the law firm in Martin only noticing its motion under Civil Code § 1717) and section 1717 did take precedence over CCP § 1021 according to Trope.
With respect to the costs award, plaintiff also obtained a reduction on appeal. Based on the structure of an amended judgment, law firm could only obtain costs against plaintiff individually for work on the IIED claim up to the time it obtained summary adjudication against her—meaning a remand was appropriate to scale back costs accordingly.