No One Won Really Won In Collateral Attack Proceeding.
Duelling with wax bullets. October 28, 1909. Library of Congress.
Dougherty v. David S. Karton, A Law Corporation, Case No. B275504 (2d Dist., Div. 8 Oct. 11, 2017) (unpublished) may demonstrate the reality that “enough, is enough” when parties duel it out over lots of years and then want equity at the final last-gasp level. (Again, we are not saying this really happened, but one can certainly read it into the ultimate result in this matter.)
The dispute happened years ago, with ex-attorney commencing litigation against an ex-client to recoup about $65,000 in allegedly unpaid fees to ex-attorney. Here is the summary from the appellate court: “. . . at the conclusion of roughly 15 years of litigation between the parties over the issue of whether [ex-client] owed $65,000 in attorney fees to [ex-attorney] under their 1990s retainer agreement, it was determined that [ex-client] had owed some money to his former law firm at some point, but that the firm had collected its money, plus more, over the course of years of the litigation on the firm’s claim for unpaid attorney fees.” (Slip Opn. at p. 5, emphasis in Opinion.)
That did not end things. In the midst of ex-attorney’s efforts to collect fees from ex-client, ex-client filed a “collateral attack” against ex-attorney relating to a 1999 default judgment which was ultimately vacated in earlier proceedings. Obviously, ex-client’s collateral attack was effectively moot when the 1999 default judgment was vacated on appeal, but that did not deter the collateral attack proceedings. The trial judge found that ex-client was entitled to $122,000 in fees against ex-attorney in the collateral attack action.
The appellate court would have none of it upon ex-attorney’s appeal. Simply put, ex-client was not the prevailing party under Civil Code section 1717 on his collateral attack action. Ex-client had really obtained relief on the prior appellate victory challenging the 1999 default judgment, such that no further true relief was granted in the collateral attack proceeding. Ex-attorney did not prevail, either, in the collateral attack proceeding because the attorney obtained no substantive relief when defending against that proceeding. “Go home, everybody,” was the message in this one—with the fee order reversed in ex-client’s favor.