Daily v. Racine

Filed 7/26/07 Daily v. Racine CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County, C. Edward Simpson, Judge. Affirmed in part, reversed in part and remanded with directions.

Karen Daily, in pro. per., for Plaintiff and Appellant.

Albert Abkarian & Associates, Albert Abkarian and Robert E. Racine for Defendants and Respondents.

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Karen Daily sued Robert E. Racine for legal malpractice, breach of fiduciary duty, breach of contract, and fraud. Racines demurrer was sustained without leave to amend and Daily (in propria persona) appealed. We affirmed. (Daily v. Racine (Feb. 23, 2007, B186944) [nonpub. opn.].)[1] Meanwhile, Racine had moved for an order obligating Daily to pay his attorneys fees, contending Dailys legal malpractice suit was an action based upon a contract within the meaning of an attorneys fee provision in his retainer agreement. The trial court agreed, and ordered Daily to pay $19,386.60 to Racine for his fees and costs. Daily (once again appearing in propria persona) appeals. We reverse the attorney fee award but affirm the cost award.

DISCUSSION

A.

Racines retainer agreement with Daily provided:

6. Attorney Fees. In any action based upon this Contract, the prevailing party shall be entitled to reasonable attorney fees and costs. (Emphasis added.)

In his motion for fees, Racine pointed to the undisputed fact that he had prevailed in the legal malpractice action and claimed it had been based upon the retainer contract. The trial court agreed, finding: Although mixed with tort causes of action, [Daily] sued [Racine] for breach of contract . . . . [Dailys] contract and tort claim[s] arose out of and [were] based upon the subject retainer agreement and thus are all covered by the attorneys fee provision.[2]

B.

We reject Racines contention that the language in his retainer agreement (based on this Contract) is as broad as the attorneys fee provisions in cases such as Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal.App.4th 1338 and Lerner v. Ward (1993) 13 Cal.App.4th 155. The agreement in Xuereb provided for the recovery of attorneys fees [i]f this Agreement gives rise to a lawsuit. (Xuereb v. Marcus & Millichap, Inc., supra, 3 Cal.App.4th at p. 1340.) The agreement in Lerner provided for the recovery of fees [i]n any action . . . arising out of this agreement. (Lerner v. Ward, supra, 13 Cal.App.4th at pp. 158-159.)

Racines narrowly drawn attorney fee provision is limited to actions based upon [his] contract and thus is substantively indistinguishable from the fee provision in Loube v. Loube (1998) 64 Cal.App.4th 421, 429, which provided for the recovery of fees [i]f legal action or arbitration is necessary to enforce the terms of this Agreement . . . . As Division One of the First District explained in Loube, that language was limited to actions on the contract (such as a suit about attorneys fees) and did not apply to a legal malpractice action (which is not an action on the contract). (Id. at pp. 429-431.)[3] Because there is no practical difference between the language in Racines retainer agreement -- any action based upon this contract -- and the provision in Loube -- any action to enforce the terms of the agreement -- it follows that Dailys tort action was not an action on the contract and that, therefore, Racine was not entitled to recover his attorneys fees (although he could, as the prevailing party, recover his costs). (Code Civ. Proc.,  1032, subd. (b).)

For these reasons, the attorneys fees award in the March 6, 2006 order must be reversed.

DISPOSITION

The March 6, 2006 order is reversed insofar as it orders Daily to pay Racines attorneys fees ($19,000) but affirmed insofar as it orders her to pay his costs ($386.60), and the cause is remanded to the trial court with directions to enter a new order to this effect. The parties are to pay their own costs of appeal.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

JACKSON, J.*

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*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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Analysis and review provided by Carlsbad Property line Lawyers.

[1] Our opinion on the earlier appeal includes a summary of the facts about the case in which Racine represented Daily as well as the facts about Dailys legal malpractice action against Racine, and we thus see no need to repeat those facts here.

[2] We disagree. Although Dailys malpractice complaint included a cause of action for breach of contract, the gravamen of her action was a claim for damages based on Racines alleged malpractice (things he did negligently, and other things he negligently failed to do). Just as there were no allegations of fraud (even though she included a cause of action with that label), there were no allegations of a breach of contract. It was a legal malpractice action, and that is all it was. (Arthur L. Sachs, Inc. v. City of Oceanside (1984) 151 Cal.App.3d 315, 322; Kangarlou v. Progressive Title Co., Inc. (2005) 128 Cal.App.4th 1174, 1178-1179.)

[3] Indeed, Loube itself distinguishes Xuereb and Lerner based on the language in the attorney fee provisions. (Loube v. Loube, supra, 64 Cal.App.4th at p. 430, fn. 2; see also Santisas v. Goodin (1998) 17 Cal.4th 599, 622, fn. 9 [a provision for the recovery of fees in an action to enforce the agreement does not permit the recovery of fees in a tort action]; Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 705-716.)