Argaman v. Ratan

• Decision Date: 30 July 1999
• Docket Number: No. B115047,B115047
• Citation: 73 Cal.App.4th 1173,86 Cal.Rptr.2d 917
• Parties: , 99 Cal. Daily Op. Serv. 6177, 1999 Daily Journal D.A.R. 7833 Nissim ARGAMAN, Plaintiff and Respondent, v. Ram RATAN, Defendant and Appellant; George McGill, Objector and Respondent.
• Court: California Court of Appeals

Page 917

86 Cal.Rptr.2d 917

73 Cal.App.4th 1173, 99 Cal. Daily Op. Serv. 6177,

1999 Daily Journal D.A.R. 7833

Nissim ARGAMAN, Plaintiff and Respondent, v. Ram RATAN, Defendant and Appellant George McGill, Objector and Respondent.

No. B115047.

Court of Appeal, Second District, Division 5, California.

July 30, 1999.

George McGill, Cardiff By The Sea, for Defendant and Appellant.

No appearance on behalf of Plaintiff and Respondent.

No appearance on behalf of Objector and Respondent.

GRIGNON, Acting P.J.

In Trope v. Katz (1995) 11 Cal.4th 274, 45 Cal.Rptr.2d 241, 902 P.2d 259, the Supreme Court held that an attorney who litigates in propria persona in an action to enforce a contract containing an attorney's fee provision may not recover "reasonable attorney's fees" under Civil Code section 1717 as compensation for the time and effort expended and the professional business opportunities lost as a result. (Id. at. p. 277, 45 Cal.Rptr.2d 241, 902 P.2d 259.) In accord with the rationale of Trope, we conclude that an attorney who litigates in propria persona may not be awarded a monetary discovery sanction under Code of Civil Procedure sections 2030, subdivision (l ) and 2023, subdivision (b)(1), ¹ based on compensation for the time and effort expended as a result of a misuse of the discovery process. Accordingly, we reduce the sanctions award of the trial court by the amount based on compensation for the attorney litigant's time and affirm the order as modified.

FACTS AND PROCEDURAL BACKGROUND

Plaintiff Nissim Argaman is an attorney. In 1981, Argaman filed a complaint in propria persona against several parties, including defendant Ram Ratan. In May 1990, Argaman entered into a settlement agreement with Ratan. On July 15, 1992, a stipulated judgment was entered against Ratan pursuant to the agreement. Argaman proceeded in propria persona against Ratan to enforce the judgment. On May 7, 1997, Argaman filed a motion to compel Ratan to provide further answers to special interrogatories and for sanctions and attorney's fees. Argaman stated that he had expended 14 hours in connection with the motion and his billable rate was $250 an hour, and requested a total of $3500 in compensation for his time. Argaman also declared that he had incurred costs of $14 to file the motion and $10 for duplication. On July 14, 1997, the trial court granted the motion to compel further responses in part and denied the motion in part. The trial court ordered Ratan and his attorney George McGill ² to pay sanctions of $500 to Argaman pursuant to section 2030. On August 8, 1997, Ratan filed a notice of appeal from the sanctions order.

DISCUSSION

Standard of Review

The propriety of a discovery sanction award is ordinarily reviewed using the abuse of discretion standard. (Young v. Rosenthal (1989) 212 Cal.App.3d 96, 114, 260 Cal.Rptr. 369.) However, statutory interpretation is a question of law which we determine de novo. (Rail-Transport Employees Assn. v. Union Pacific Motor Freight (1996) 46 Cal.App.4th 469, 473, 54 Cal.Rptr.2d 713.) "We begin as always 'with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent.' [Citation.] To discover that intent we first look to the words of the statute, giving them their usual and ordinary meaning. [Citations.] 'Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.' [Citation.]" (Trope v. Katz, supra, 11 Cal.4th at p. 280, 45 Cal.Rptr.2d 241, 902 P.2d 259.)

Sections 2023, subdivision (b)(1), and 2030, subdivision ( l )

Ratan contends that the trial court erred in imposing monetary discovery sanctions against him pursuant to sections 2030, subdivision (l ) and 2023, subdivision (b)(1) in an amount which included compensation for Argaman's time as an attorney, because Argaman did not incur an expense for his time. We agree.

Section 2030, subdivision (l ) provides in pertinent part, "If the propounding party, on receipt of a response to interrogatories, deems that (1) an answer to a particular interrogatory is evasive or incomplete, (2) an exercise of the option to produce documents ... is unwarranted ..., or (3) an objection to an interrogatory is without merit or too general, that party may move for an order compelling a further response.... [p] The court shall impose a monetary sanction under Section 2023 against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust."

Section 2023, subdivision (b) provides in pertinent part: "To the extent authorized by the section governing any particular discovery method or any other provision of this article, the court, ... may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process. [p] (1) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both[,] pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. ... If a monetary sanction is authorized by any provision of this article, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust." (Emphasis added.)

No case has considered whether a monetary sanction for misuse of the discovery process may include compensation for time spent by an attorney litigant in propria persona. However, we are guided by the Supreme Court decision in Trope, which held that an attorney acting in propria persona is not entitled to recover "reasonable attorney's fees" under Civil Code section 1717. In Trope, an attorney represented his own law firm in an action against a former client to collect unpaid fees. The fee agreement had provided for recovery of attorney's fees in the event of litigation. Following judgment for the law firm, the attorney moved for an award of attorney's fees. The Supreme Court held that an attorney who successfully represents himself or herself in litigation may not recover attorney's fees even when such fees are provided for by contract or statute.

Civil Code section 1717, subdivision (a) is similar to the discovery sanction provisions of section 2023, subdivision (b)(1) in that both statutes concern amounts "incurred" by a party. ³ "[B]y its terms [Civil Code] section 1717 applies only to contracts specifically providing that attorney fees 'which are incurred to enforce that contract' shall be awarded to one of the parties or to the prevailing party. (Italics added.) To 'incur' a fee, of course, is to 'become liable' for it (Webster's New Internat. Dict. (3d ed.1961) p. 1146), i.e., to become obligated to pay it. It follows that an attorney litigating in propria persona cannot be said to 'incur' compensation for his time and his lost business opportunities." (Trope v. Katz, supra, 11 Cal.4th at p. 280, 45 Cal.Rptr.2d 241, 902 P.2d 259, original italics.) In addition, the usual and ordinary meaning of the words "attorney's fees" is "the consideration that a litigant actually pays or becomes liable to pay in exchange for legal representation." (Ibid.) An attorney who chooses to litigate in propria persona does not pay or become liable to pay consideration in exchange for legal representation. (Id. at pp. 280-282, 45 Cal.Rptr.2d 241, 902 P.2d 259.)

"Let us assume for the sake of discussion ... that an attorney litigant devotes as much time and effort to litigating a matter on his own behalf as he does to litigating a case on behalf of a client, and that his time is equally valuable whether he is acting on behalf of himself or of a client. It does not necessarily follow from this premise, however, that he is entitled to receive compensation from his opponent simply because the time he devotes to litigating a matter on his own behalf has value. The time that a doctor, for example, spends litigating a case on his own behalf also has value, both to the doctor himself and to society generally, for that time could otherwise be spent treating the sick or pursuing medical research for the benefit of all; an architect's time could otherwise be spent designing or building houses; a painter's time could be spent creating works of art for future generations to enjoy. However, it is clear that when it enacted [Civil Code] section 1717[,] the Legislature did not intend to allow doctors, architects, painters, or any other nonattorneys to receive compensation for the valuable time they spend litigating a contract matter on their own behalf. [Citations.]" (Trope v. Katz, supra, 11 Cal.4th at pp. 284-285, 45 Cal.Rptr.2d 241, 902 P.2d 259, original italics.)

" 'The system would be one-sided, and would be viewed by the public as unfair, if one party (a lawyer litigant) could qualify for a fee award without incurring the potential out-of-pocket obligation that the opposing party (a nonlawyer) ordinarily must bear in order to qualify for a similar award [i.e., without paying or becoming liable to pay consideration in exchange for legal representation]. Moreover, if both parties opt to litigate pro se, it would be palpably unjust for one of them (the lawyer litigant) to remain eligible for an attorney fee award, while the other becomes ineligible.... [p] ... [p] In our view, the public perception of fairness in the legal system is of greater moment than a lawyer litigant's claim to an attorney fee award if he elects to represent himself.' [Citations.]" (Trope v. Katz, supra, 11 Cal.4th at p. 286, 45 Cal.Rptr.2d 241, 902 P.2d 259, original italics.)

The Supreme Court...