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Case Name

Tentative

2

IRMO Largent

Two Motions on Calendar: 

1) Borson motion: Deny.  While the Borson motion filed by atty O’Kennedy was filed concurrent with the withdrawal, in fact respondent discharged atty O’Kennedy a week prior and signed a Sub/Atty on 7-28-08. [A client has an absolute right to dismiss an attorney [FC 284; Gage v. Atwater (1902) 136 Cal. 170, 172.  IRMO Simpson (2006) 141 CA4th 707, 709:  stated that “…Borson allows a discharged attorney to pursue a request for direct fee payment from the former client's spouse if the request is expressly or impliedly authorized by the former client….”          At page 710, the Simpson court continued:  “Three key cases discuss a former attorney's right to pursue an order for direct fee payment from the former client's spouse. (Meadow v. Superior Court (1963) 59 Cal.2d 610 [30 Cal. Rptr. 824, 381 P.2d 648] (Meadow); Borson, supra, 37 Cal. App. 3d 632; and Read, supra, 97 Cal.App.4th 476.) As we shall explain, these decisions establish that the pivotal factor governing a trial court's jurisdiction to award a direct fee payment is whether the former client authorized the former attorney to make the fee request on the former client's behalf….”.  Although the Simpson court determined that the Borson motion had been properly filed in that case while counsel was still representing the client & that the client had authorized the motion, the facts in this case are decidedly different.  But for O’Kennedy’s apparent delay in signing and filing the Sub/Atty, he would not have been Respondent’s “attorney of record” on 8-5-08.  Atty O’Kennedy was discharged a week before filing the Sub/Atty.  Moreover, respondent has clearly stated that O’Kennedy was not authorized to pursue AFs against Petitioner & that he had communicated this information to O’Kennedy.  On that basis, the Borson motion must be denied.  Further, the file contains no evidence that respondent asked for AFs previously and respondent specifically stated in declaration that he has not authorized atty O’Kennedy to seek AFs on his behalf & that he does not want him to pursue this motion against Pet’r.

2) Sanction Motion under § 271:  Deny.  There is no statutory authority to impose § 271 sanctions against Mr. O’Kennedy.   Sanctions per FC 271 cannot be charged to an attorney, only to the party against whom the sanction is imposed, and only from that party’s property or income [FC 271(c)].  Mr. O’Kennedy is not a party to this action.

3) Other Orders: 

1.  The court will sign the “Stipulation to Amend Stipulation for Judgment and Order dated 5-6-08”, and make the order [on the court’s own motion per FC 2346(b)] nunc pro tunc to 7-27-08 to promote settlement and fairness in concluding this action for dissolution of marriage. Note:  Despite the fact that the Stip’n to Amend was not a court order at the time the checks were written directly to Respondent, it represents an agreement of the parties, whose wishes should not be countermanded to their detriment by Respondent’s former counsel, simply b/c he wants to be paid. 
2. Find that all payments in furtherance of MP’s $40K obligation to Respondent have been timely made.         
3. Order Mr. O’Kennedy to forthwith release his FLARPLs.  Note:  The court has reviewed the order of 5-6-08 and concludes that the funds were to go to Respondent for his CP interest in the community property, via his attorney.  There is no mention of any of the $40K being applied to Resp’s AF obligation to Mr. O’Kennedy.  MP states in her declaration that she suggested the addition of this last paragraph, b/c of the contentiousness of the litigation.  Mr. O’Kennedy does not dispute this statement, even in his P’s & A’s.