Opinion
B156386.
7-10-2003
GARY DRANOW et al., Plaintiffs and Respondents, v. ALAN KANE et al., Defendants; JOHN F. FAY, Claimant and Appellant.
John F. Fay, in pro. per., for Claimant and Appellant. No appearance on behalf of Plaintiffs and Respondents.
Appellant Attorney John F. Fay appeals from an order quashing his lien for attorneys fees in an action settled by respondents Gary and Sanya Dranow. Attorney Fay contends the trial court lacked jurisdiction to quash his attorneys lien. We agree and accordingly reverse.
On June 26, 2000, the Dranows filed a complaint in Los Angeles Superior Court in propria persona. On August 8, 2000, the Dranows entered into a written retainer agreement with Attorney Fay to represent them in the Los Angeles action. Attorney Fay is licensed to practice law in Utah and California. The written retainer agreement provided for an hourly rate and expired by its own terms on September 10, 2000. However, on February 5, 2001, the Dranows and Attorney Fay entered into a second written retainer agreement. This agreement also provided for an hourly rate and expired by its own terms on April 15, 2001. The Dranows and Attorney Fay disagree as to whether or not the parties thereafter entered into an oral contingent fee agreement. On August 25, 2001, Attorney Fay ceased to represent the Dranows. The Dranows and Attorney Fay disagree as to whether Attorney Fay withdrew or was fired. On October 20, 2001, Attorney Fay filed a notice of attorneys lien in the underlying action. Apparently, the underlying action settled. The Dranows were to receive a gross settlement amount of $ 230,000. In light of the notice of attorneys lien, the opposing party made the settlement check payable to the Dranows and Attorney Fay.
On November 28, 2001, the Dranows moved to quash the attorneys lien. On December 6, 2001, Attorney Fay opposed the motion in writing. On December 20, 2001, the trial court in the underlying action granted the Dranows motion to quash the attorneys lien and ordered Attorney Fays name removed from the settlement check. The trial court concluded California and not Utah law was applicable, the retainer agreement created neither an express nor an implied lien on the settlement proceeds, and quantum meruit may not be recovered by means of an attorneys lien. This timely appeal followed.
"Appellate courts have consistently held that the trial court in the underlying action has no jurisdiction to determine the existence or validity of an attorneys lien on the judgment. [Citations.] The trial court does have fundamental jurisdiction over the subject matter and over the parties. Nevertheless, because the attorney is not a party to the underlying action and has no right to intervene, the trial court acts in excess of its jurisdiction when it purports to determine whether the attorney is entitled to foreclose a lien on the judgment. [Citations.] Nor can the court entertain a motion to terminate the lien. [Citation.] After the client obtains a judgment, the attorney must bring a separate, independent action against the client to establish the existence of the lien, to determine the amount of the lien, and to enforce it. [Citations.] An order within the underlying action purporting to affect an attorneys lien is void." (Carroll v. Interstate Brands Corp. (2002) 99 Cal.App.4th, 1168, 1173.) Nor may a trial court in the underlying action expunge a notice of attorneys lien. (Id. at p. 1177.)
DISPOSITION
The order granting the motion to quash the attorneys lien is reversed. The parties are to bear their own costs on appeal.
We concur: TURNER, P. J., and MOSK, J. --------------- Notes: The Dranows have not filed a respondents brief.