A recent Metropolitan News story, “Attorneys’ Invoice in Prior Case May Be Admitted to Support Testimony”, reports that a landowner who was sued by a man induced by a real estate agent into believing he had a contractual right to purchase her property when no contract had been formed was given a second chance yesterday by the Court of Appeal to win recompense from the realty company in a “tort of another” case for the attorney fees she incurred in the prior action.
The opinion was authored by Justice William Dato of the Fourth District’s Div. One. It reverses a judgment to the extent that San Diego County Superior Court Judge Ronald L. Styn denied attorney fees to plaintiff Hue Thi Dong Mai.
Styn did so, with expressed reluctance, in light of the Oct. 19, 2018 decision by the Fourth District’s Div. Three in Copenbarger v. Morris Cerullo World Evangelism, Inc. He read the case as barring Mai’s introduction of invoices for attorneys fees she expended in the breach-of-contract action against her, as inadmissible hearsay, and precluding him from taking judicial notice of what work was done in the prior case, over which he had also presided.
Mai was sued by John Fike who had been told by realtor Victoria Robinson of Keller Williams that a deal for the purchase of Mai’s property had been reach, when it hadn’t. After telling Fike that an accord had been reached, Robinson—desiring to obtain a commission on a sale for more than $1 million—then sought to persuade Mai to sell at the price she had set, but she declined.
After Fike dropped his suit, Mai sued Robinson and the company that owns Keller Williams under the “tort of another” doctrine which, Dato noted, “allows for the recovery of attorney’s fees as damages when a plaintiff is forced into litigation with a third party due to the tortious conduct of the defendant.” She obtained a judgment for $50,000 for emotional distress but nothing for the attorney fees she had expended in the action brought by Fisk.
Once Styn realized that attorney fees were being sought as damages subject to proof at trial, and not as costs which could be reckoned by reference to his own assessment of the value of services, he expressed a powerless to deviate from what he saw as constraints set down by Copenbarger and denied an award of those fees. Dato said he would read Copenbarger narrowly to avoid a conflict with other decisions.
He said of Copenbarger: “We are… of the opinion that its commentary on the inadmissibility of the invoices would only apply to cases where plaintiffs attempt to read the detailed entries on the bills during their testimony to prove the specific repairs made or services rendered—and not where the invoices are offered for the more limited and appropriate purpose of corroborating testimony that they actually paid certain amounts and/or to make a prima facie showing that the charges were reasonably incurred.
“As pertinent to this case, Mai sought to introduce redacted copies of the attorney invoices only to support her testimony that she paid the billed amounts and as some evidence that the amounts were reasonable….The trial court erred in broadly reading Copenbarger to preclude both Mai’s testimony and receipt of the invoices for these limited and appropriate purposes. This evidence would have satisfied Mai’s prima facie burden to establish how much she paid for legal services and the reasonableness of that amount.”
Dato went on to say that Copenbarger “strongly implies—though it does not hold” that judicial notice of the content of the file in a previous action would be improper. He said: “The sounder and long-established rule is that materials filed by attorneys on behalf of litigants can be judicially noticed and provide evidence to support an award of attorney’s fees. As relevant to this case, the materials filed on Mai’s behalf by her attorneys in the Fike action were properly subject to judicial notice and provide some evidence of the work performed defending that case.” A remand was ordered for the limited purpose of setting attorney fees.