Imke, Chodos, Silberfeld & Anteau, Inc. v. Athans, B222175.

• Decision Date: 14 September 2011
• Docket Number: No. B222175.,B222175.
• Citation: 11 Cal. Daily Op. Serv. 6390,128 Cal.Rptr.3d 95,2011 Daily Journal D.A.R. 7657,195 Cal.App.4th 1275
• Court: California Court of Appeals Court of Appeals
• Parties: SIMKE, CHODOS, SILBERFELD & ANTEAU, INC., Cross-complainant and Respondent, v. Jerry B. ATHANS et al., Cross-defendants and Appellants. Simke, Chodos, Silberfeld & Anteau, Inc., Plaintiff and Respondent, v. Jerry B. Athans et al., Defendants and Appellants.

195 Cal.App.4th 1275

128 Cal.Rptr.3d 95

11 Cal. Daily Op. Serv. 6390

2011 Daily Journal D.A.R. 7657

SIMKE, CHODOS, SILBERFELD & ANTEAU, INC., Cross-complainant and Respondent,

v.Jerry B. ATHANS et al., Cross-defendants and Appellants.

Simke, Chodos, Silberfeld & Anteau, Inc., Plaintiff and Respondent,

v.Jerry B. Athans et al., Defendants and Appellants.

No. B222175.

Court of Appeal, Second District, Division 1, California.

May 26, 2011.

Review Denied Sept. 14, 2011.

Gladstone Michel Weisberg Willner & Sloane, Arthur Grebow; Greines, Martin, Stein & Richland, Los Angeles, Marc J. Poster and Edward L. Xanders for Cross-defendants, Defendants and Appellants.

Simke, Chodos & Sasaki, Los Angeles, and David Manning Chodos for Cross-complainant, Plaintiff and Respondent.

MALLANO, P.J.

In the event of a default, the “relief” granted to the plaintiff may not exceed the dollar amount demanded in the complaint or, in cases of personal injury or wrongful death, the dollar amount set forth in a statement of damages. (Code Civ. Proc., §§ 580, 425.11.) This rule applies not only to routine defaults, where the defendant fails to file an answer, but also to defaults entered as a sanction for misusing the discovery process. ( Greenup v. Rodman (1986) 42 Cal.3d 822, 827–829, 231 Cal.Rptr. 220, 726 P.2d 1295( Greenup ).) The question presented here is whether a plaintiff may recover attorney fees incurred in a case terminated in his or her favor as a discovery sanction where the complaint contains a request for an unspecified amount of attorney fees. Put another way, does a complaint have to specify by dollar amount the attorney fees that will be incurred and sought in a case ultimately resolved by a default judgment entered as a discovery sanction?

We answer that question in the negative because the attorney fees awarded in this case do not constitute the type of “relief” that must be stated by amount in the complaint to be recovered in a default judgment entered as a terminating sanction.

IBACKGROUND

The facts on this appeal are taken from the declarations and exhibits filed in connection with defendants' motion to vacate a default judgment containing an award of attorney fees and from our prior opinion in this case ( Athans v. Simke, Chodos, Silberfeld & Anteau, Inc. (July 31, 2001, B137788, B139856, B140971) [nonpub. opn.] ( Athans, B137788)).

As we previously explained: “In 1986, Jerry C. Athans, Sr., died. He was survived by his wife, Eva C. Athans and four adult children, Jerry B., George, Olga, and Catherine. Eva was the executor of Jerry Sr.'s estate.

“[In her capacity as executor,] Eva retained Goldsmith & Burns (Goldsmith) to file [a civil] action against Jerry B. and George, alleging that they had improperly acquired various family properties and companies ( Athans v. Athans (Super.Ct.L.A.County, 1987, No. C662110)). [The contingency fee agreement between Eva, as executor, and Goldsmith was not submitted to the probate court for approval.] In 1989, the ... case settled for roughly $1.5 million. According to the settlement agreement, Eva was to receive $20,000 individually, and the balance of the assets was to go to Jerry Sr.'s estate.

“After the settlement, Goldsmith demanded, pursuant to the parties' contingency fee agreement, that Eva pay approximately $520,000, plus shares of stock in one of the Athans family companies. Eva refused to pay.

“On May 7, 1990, Goldsmith filed a civil action for breach of the contingency fee agreement, naming as defendants Eva, individually and as executor of the estate, and the four Athans children ( Goldsmith v. Athans (Super.Ct.L.A.County, 1990, No. BC000508) [ ( Goldsmith ) ] ). The complaint contained 12 purported causes of action. The Athanses retained David Chodos, Esq., of Simke, Chodos, Silberfeld & Anteau, Inc. (collectively Chodos), to defend them. Chodos filed an answer to the complaint and filed a cross-complaint against Goldsmith, alleging legal malpractice. [The Simke firm is now known as Simke, Chodos & Sasaki.]

“The case proceeded to trial by jury. On November 12, 1991, the jury returned a verdict against Eva on the claim for breach of the contingency fee agreement and awarded Goldsmith $520,225.50, plus stock in one of the Athans companies. On Eva's cross-complaint for legal malpractice, the jury returned a defense verdict. None of the Athans children were found liable. Goldsmith was awarded attorneys' fees, costs, and prejudgment interest. Shortly after the verdict, Eva filed for bankruptcy.

“In October 1992, Jerry B. replaced Chodos with Boyd Lemon, Esq. Lemon moved for a new trial in Goldsmith, arguing that Goldsmith's entitlement to attorneys' fees should have been determined in probate court under the Probate Code, not in a civil action based on the contingency fee agreement. The trial court agreed and ordered that the case be retried in probate court. On appeal, Division Four of this [district] affirmed, [explaining that ‘[r]epresenting an estate in civil litigation is [an] extraordinary service for which an attorney must apply to the probate court for such amount [of fees] as the court may deem ‘just and reasonable.’ (See Prob.Code, former §§ 901, 902, 910, now id., § 10811, subds. (a), (c)) ] ( Goldsmith v. Athans (July 16, 1996, B094812) [nonpub. opn.] ). After remand, the superior court dismissed Goldsmith's complaint as ‘improper’ and found the contingency fee agreement to be unenforceable.

“On December 3, 1992, Eva, Jerry B., and George filed [this] action against Chodos in Los Angeles County Superior Court, alleging legal malpractice [arising out of the Goldsmith representation] (No. BC069926). Later, Chodos filed a cross-complaint, seeking to recover unpaid attorneys' fees and costs. [The cross-complaint sought $285,246.81 in unpaid attorneys' fees and costs, plus interest related to the Goldsmith case, and requested attorney fees incurred by Chodos in defending against the Athanses' complaint and in pursuing the cross-complaint, as authorized by a ‘prevailing party’ provision in the retainer agreement, but did not specify an amount of fees. The Athanses filed an answer to the cross-complaint.] On January 5, 1993, Chodos filed a separate action in Los Angeles County Superior Court against the Athans brothers, alleging that they owed the firm $285,246.81 in attorneys' fees and costs, plus interest[, for work performed on the Goldsmith matter] (No. BC072127). [The complaint also alleged that Chodos was entitled to attorney fees and costs, plus interest, incurred in bringing the action, as authorized by a ‘prevailing party’ provision in the retainer agreement, but did not state an amount of fees. The Athans brothers filed an answer to the complaint.] The two actions ... were consolidated in the trial court for all purposes[, and Chodos was represented by Wasserman, Comden & Casselman (now known as Wasserman, Comden, Casselman & Esensten) in both suits].

“On February 5, 1993, Eva died. On April 20, 1994, the trial court, Judge William Huss presiding, dismissed Eva from the Athanses' malpractice complaint because a proper representative had not appeared on her behalf. The special administrator of Eva's estate, Frumeh Labow, promptly moved for reconsideration of the dismissal. The trial court vacated the order of dismissal, ‘upon [the] condition that counsel for plaintiffs stipulate that the discovery responses of plaintiffs George Athans and Jerry Athans be deemed the discovery responses of plaintiff Frumeh Labow as Special Administrator of the Estate of Eva C. Athans....' “Through a series of transactions, the Athans brothers became the sole beneficiaries of Eva's estate. At some point, Frumeh Labow and Jerry B. became co-administrators of the estate.

“On August 29, 1996, Chodos served the Athans brothers with discovery, specifically, one form interrogatory, one supplemental interrogatory, a set of special interrogatories (eight in number), a set of requests for admissions (29 in number), and a document demand (containing five requests). Another document demand (containing 38 requests) was served on October 15, 1996.

“Together, the discovery requests went to the heart of the malpractice claim. For example, one of the requests for admissions stated: ‘[Chodos] did not commit any act of legal malpractice in connection with the prosecution of the complaint for legal malpractice against Goldsmith & Burns.’ The form interrogatory sought the facts, names of witnesses, and documents supporting the answer to each request for admission. The supplemental interrogatory stated, ‘Please review all of the answers previously made by you in response to interrogatories and identify all later acquired information bearing on all answers previously made.’ One of the document demands requested documents supporting the contention that Chodos had committed malpractice.

“The Athans brothers did not respond to any of the discovery. As a result, Chodos filed five motions—four to compel answers to the interrogatories and document demands and one to deem the requests for admissions to be admitted. Chodos also sought monetary sanctions. The notice of each motion to compel stated that Chodos was seeking answers ‘without objection.’ The Athans brothers did not file an opposition to any of the motions.

“On December 20, 1996, the trial court, Judge Fumiko Wasserman presiding, heard argument on the motions and issued a minute order, stating that ‘[a]ll motions are granted and all responses are to be compelled within ten days.’ Judge Wasserman also ordered the Athans brothers to pay $1,500 in sanctions within 30 days. On the same day as the hearing, Chodos served a notice of ruling, stating that the Athans brothers had to answer the discovery requests without objection.

“On or about December 30, 1996, the Athans brothers served discovery responses. They objected to, and did not answer, the form interrogatory, contending that form interrogatories were not permitted in this type...