In the Matter of the Estate of Jack Richard Thomas

The Petition requested that the court assume jurisdiction over Decedent’s law firm pursuant to Business and Professions Code § 6180.5 and for orders directing the State Bar of California to intervene and assume primary responsibility for protecting the Firm’s clients. Petitioner further requested an award of attorney fees and costs pursuant to Code of Civil Procedure § 1021.5.

All matters relating to the Petition have been resolved by the parties with the exception of the request for attorney fees and costs.

Analysis and Ruling Petitioner’s Request for Attorneys’ Fees Pursuant to Code of Civil Procedure § 1021.5 Petitioner, Pamela Thomas moves for an award of attorneys’ fees and costs pursuant to Code of Civil Procedure section 1021.5. For the following reasons, the request is DENIED.

Legal authority

As a general rule, a prevailing party must bear its own attorney fees unless a statute or agreement of the parties provides otherwise. (Code of Civil Procedure § 1021; Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 504.)

Petitioner’s claim to fees is based solely on one such statutory provision, section 1021.5, the codification of the private attorney general doctrine. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1288.) This doctrine is designed to encourage lawsuits effectuating a strong public policy by awarding attorney fees to those who bring such suits and thereby benefit the public interest or a broad class of people. (In re Head (1986) 42 Cal.3d 223, 227; Bouvia v. County of Los Angeles (1987) 195 Cal.App.3d 1075, 1082.)

Code of Civil Procedure section 1021.5 provides, in relevant part:

“Upon motion, a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any...”

The burden of proof “remains on the claimant to establish each element of the statute.” Department of Water Resources Environmental Impact Cases (2022) 79 Cal.App.5th 556.

Discussion

“The threshold requirement for a fee award under section 1021.5 is proof that the fee applicant is a ‘successful party.’ ” (Grossmont Union High School Dist. v. Diego Plus Education Corp. (2023) 98 Cal.App.5th 552, 571).

When the party seeking attorney fees, such as those under the private attorney general statute, is a defendant or is a de facto intervener aligned with the defense, the evaluation of that party's success is based on a pragmatic assessment of the harm prevented to the defendant or de facto intervener's interests, which a court treats as equivalent to the gains achieved by the plaintiff. (Vosburg v. County of Fresno (2020) 54 Cal.App.5th 439, 463).

Here, Thomas unilaterally dismissed her Civil Complaint and, as a result, Petitioner was relieved from any potential recovery that Thomas may have obtained as a result of the Civil Complaint. As such, Petitioner is a successful party with respect to the Civil Complaint for which section 1021.5 damages are sought.

Litigation failed to result in the enforcement of an important right affecting public interest and there was no significant benefit conferred on the general public Petitioner contends that their defense of Thomas’ action resulted in the preservation of an important right affecting public interest, namely, the public’s right to have a deceased attorney’s practice wound down through court supervised processes which, in turn, ensures the protection of client confidentiality, property and access to counsel.

Petitioner alleges that had Thomas’ complaint succeeded, privileged and confidential client files would have been transferred without court supervision, without proper client notification and without the involvement of a court-appointed attorney bound by professional duties.

Petitioner further asserts that the benefit conferred by Petitioner’s defense of the Civil Complaint extends beyond the firm’s individual clients by vindicating the statutory framework that reinforces the requirement that the wind-down of a deceased attorney’s practice must proceed through the channels prescribed by the Legislature, not civil tort litigation.

The court is unpersuaded that Petitioner’s defense of the Civil Complaint served to vindicate and reinforce the orderly transfer of a deceased attorney’s law practice. As stated previously, the purpose of section 1021.5 relief is to encourage lawsuits by awarding attorney fees to those who bring such suits which ultimately benefit the public interest or a broad class of people. This implies that those on whom attorney fees are imposed have acted in a way that violates or compromises an important right.

Here, Thomas sought a court order enforcing what she believed to be her rights with respect to the files of Decedent’s law firm. Petitioner, through this request, would like the court to find that Respondent’s filing of her Civil Complaint compromised the public’s right to the orderly transfer of client files and that she sought to use civil litigation to obtain custody of the firm’s filed outside the statutory protections governing those files. The court is not persuaded.

Moreover, Petitioner has failed to show that the voluntary dismissal of Respondent’s action had any benefit to the public or broad class of people - to the contrary, the dismissal merely maintained the status quo. It was Petitioners personal economic interest that was advanced by the dismissal and any public benefit that may have resulted from the dismissal was merely incidental to Petitioners personal benefit in not having to defend against the Civil Complaint.

Furthermore, Petitioner failed to show how the dismissal “preserved an important right” that was never under attack, providing no credible evidence that the general public’s right to client confidentiality or access to counsel were in jeopardy by Thomas’ filing of the Civil Complaint.

In fact, had Thomas pursued and succeeded in her claim, then the court would have presumably found that Thomas, a licensed California attorney, was the person entitled to the client files and that a transfer of the files under the statutory protections that Petitioner is asserting would have been unnecessary. As a licensed California attorney, Thomas is under the same obligations with respect to client confidentiality, protection of files and maintenance of property that would be afforded to the firm’s clients under court supervision. Either result would have ensured the protection of Decedent’s clients.

In fact, here, after her father’s death, Thomas contacted the State Bar of California to obtain information on how to proceed with proper notification of the firm’s clients and, ultimately, it was Thomas who provided the required notifications which were found to be compliant by the State Bar of California and why the State Bar did not believe it necessary to intervene in this action.

Petitioner failed to show that a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons and, as such, the request for payment of attorney fees under Code of Civil Procedure section 1021.5 is DENIED.

Petitioner is ordered to give notice of this ruling.