Leiper v. Gallegos

Filed 9/23/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
GARY D. LEIPER as Trustee, 2d Civil No. B309986
etc., (Super. Ct. No. P073688)
(Ventura County)
Plaintiff,
v.
DENNIS GALLEGOS,
Defendant;
JOHN L. POOLE,
Objector and Appellant;
BANK OF THE WEST, as
Trustee, etc.,
Objector and Respondent.
John L. Poole appeals from an order denying his motion for
attorney fees and costs. Poole, an attorney, represented only
himself. His appeal presents the following issue: May an
attorney who represents only himself (pro se attorney) recover
attorney fees and costs in equity under the common fund theory?
This theory is an exception to “the American rule, which provides
that each party to a lawsuit must ordinarily pay his own attorney
fees.” (Trope v. Katz (1995) 11 Cal.4th 274, 278 (Trope).) In
Trope, the California Supreme Court held “that an attorney who
chooses to litigate in propria persona and therefore does not pay
or become liable to pay consideration in exchange for legal
representation cannot recover ‘reasonable attorney’s fees’ under
[Civil Code] section 1717,” which applies to contractual awards of
attorney fees. (Id. at p. 292.) The Supreme Court left open the
question whether a pro se attorney may recover attorney fees
under the nonstatutory common fund theory. (Ibid. [“we express
no opinion regarding the applicability of our reasoning . . . in the
context of the equitable exceptions [e.g., the common fund
theory,] to the American rule”].)
We agree with the trial court as to attorney fees under the
common fund theory. But we disagree with the court’s ruling as
to costs. We hold that an attorney who represents only himself
and does not pay or become liable to pay consideration in
exchange for legal representation may not recover attorney fees
under the equitable common fund doctrine, but may seek
recovery of legitimate, reasonable costs excluding attorney fees
under that doctrine.
Factual and Procedural Background
This case arises from E.S. Barnard’s 1939 lease of oil and
gas rights beneath his land (Lot 7). The lessee was a major oil
company. The facts are set forth in detail in our prior opinion,
Leiper v. Gallegos (2019) 42 Cal.App.5th 394, 398-401 (Leiper).
We briefly summarize them here.
In 1957 E.S. Barnard’s company “dissolved and conveyed
its interests in Lot 7, including the oil and gas lease, to its
2
shareholders (the Barnards and Pooles . . .). In 1977, the
[owners] entered into an agency agreement titled ‘Barnard Oil
Trust . . .’ . . . for the distribution of oil and gas royalties.”
(Leiper, supra, 42 Cal.App.5th at p. 399.)
One of the Barnards defaulted on a tax bill. In 1978 Lot 7
was sold at public auction and was eventually conveyed to Dennis
Gallegos. Gallegos claimed he was entitled to a share of the oil
and gas royalties. Because of his claim, the oil company
suspended distribution of the royalties. Gary Leiper, the trustee
of the Barnard Oil Trust, tentatively settled the dispute with
Gallegos. The settlement provided that Gallegos would receive
5.714 percent of the royalties. Appellant Poole, a fractional
owner of the oil and gas rights, objected to the settlement.
Appellant claims that his interest in the royalties is “less than
1%.”
Appellant “filed a petition to determine title and royalty
rights.” (Leiper, supra, 42 Cal.App.5th at p. 400.) The oil
company petitioned “to interplead the oil royalties . . . and
deposited the money with the trial court.” (Ibid.) According to a
document filed in March 2020, the amount of the interpleaded
funds was “at least $500,000.” The trial court “ordered Leiper to
file a petition [to] quiet title and [for] declaratory relief.
[Gallegos], in response to [Leiper’s] petition, asked the trial court
to confirm . . . that the 1978 tax deed conveyed both the surface
rights and subsurface oil and gas rights.” (Ibid.)
The trial court “expressly ruled that [Gallegos] had no
interest in the oil and gas royalties because the tax collector
‘didn’t foreclose upon those rights.’” (Leiper, supra, 42
Cal.App.5th at p. 401.) Gallegos appealed. We upheld the trial
court’s ruling. We concluded that Gallegos “is the surface owner
3
to Lot 7 but he does not now own an interest in the oil and gas
under Lot 7.” (Id. at p. 398.)
Appellant moved to recover his reasonable attorney fees
and costs. He claimed that he had “conceived the theory upon
which the Court of Appeal[] ruled in favor of the Barnards.”
Appellant sought “$50,745 for fees and [$1,572.75] for costs for
work successfully defending the trial court judgment on appeal.”
In addition, he sought “$46,020 for fees and $1,269.29 for costs
for work performed in the Superior Court.” Relying on the
equitable common fund theory, appellant requested that payment
be made from the interpleaded oil and gas royalties. During
appellate oral argument, appellant asserted that, but for his
efforts, Gallegos would have received 5.714 per cent of the
royalties.
Some members of the Barnard and Poole families opposed
appellant’s motion for attorney fees “because he was representing
his own interests individually and the money [he requested]
would deplete the amount of royalties interpleaded with the
Court and available for distribution to family members.”1 One
family member emailed the trial court: “In my view, [appellant’s]
personal interference in this case has been counterproductive.”
In September 2017 another family member wrote a letter to the
1 Appellant estimated “that as of 4/18/2021, $331,479.09[]
ha[d] been paid or authorized to be paid [from the interpleaded
funds] to attorneys and the referee,” not including “$6,335
authorized to be paid to Leiper on April 14, 2021.” If appellant’s
request for attorney fees and costs were granted, the amount paid
would increase to $437,421.13.
4
court in which she complained, “My grandparents and my father
would be distressed and appalled that a single member
[appellant] of a large and extended family has tied up Court’s
time and money in his personal quest.”
During appellate oral argument, counsel for respondent
Bank of the West (Bank) explained that family members were
upset because, as a result of the litigation, the stream of royalty
payments to the beneficiaries stopped for “almost five full years.”
Family members were concerned that the interpleaded funds
would be drained by the payment of fees.
The trial court denied appellant’s motion for attorney fees
and costs. It said: “Here the issue is not if the common fund
theory applies; the Court already has applied it to the attorney
fee request by Austin Barnard Trust’s attorney.[2] The issue is if
[appellant] can be paid ‘attorney fees’ for his self-representation
in this matter. [¶] [Appellant] did not ‘employ’ an attorney, did
not incur attorney’s fees, and there is no attorney/client
relationship. [Appellant], who is a California licensed attorney,
chose to represent himself in this litigation.”3 Because appellant
2 The request was made by Bank, co-trustee of the Austin
M. Barnard Trust. Unlike appellant, Bank retained counsel. It
filed a respondent’s brief in both appellant’s present appeal and
Gallegos’s prior appeal. Relying on the common fund theory, the
trial court granted Bank’s motion for attorney fees incurred in
Gallegos’s appeal. The court ordered that Bank’s attorney fees
“shall be paid from the funds interpleaded with the Court.”
3 Although appellant is a licensed California attorney, he
was employed in a field unrelated to law when he sought recovery
of his attorney fees. Appellant declared, “I work full time as a
software engineer at [name deleted] Corporation, so I have to
attend to this matter outside of business hours.”
5
represented himself, the court ruled that he is not entitled to
attorney fees under the common fund theory. As to appellant’s
request for costs excluding attorney fees, the court stated, “The
Court denies [appellant’s] request for fees, and in doing so, denies
assoc[]iated costs as well.”
Standard of Review
“‘“‘An order granting or denying an award of attorney fees
is generally reviewed under an abuse of discretion standard of
review; however, the “determination [at issue here] of whether
the criteria for an award of attorney fees and costs have been met
is a question of law.” [Citations.]’”’ [Citation.] An issue of law
concerning entitlement to attorney fees is reviewed de novo.”
(Carpenter & Zuckerman, LLP v. Cohen (2011) 195 Cal.App.4th
373, 378.)
The Common Fund Theory
“The Legislature has . . . enacted several statutory
exceptions to the American rule, and [the California Supreme
Court has] relied on [its] ‘inherent equitable authority’ to develop
three additional exceptions—the common fund, substantial
benefit, and private attorney general theories of recovery.”4
(Trope, supra, 11 Cal.4th at p. 279.) Appellant states: “This
appeal is an attempt to require the [trial] court to engage in the
consideration of whether [appellant’s] request [for attorney fees
and costs] is reasonable under the common fund doctrine.”
“Specifically, the issue here concerns a California licensed
attorney acting pro se seeking compensation from a common
fund. It is pure equity, there are no statutes involved.”
4“Code of Civil Procedure section 1021.5 codified the
private attorney general theory.” (Mejia v. City of Los Angeles
(2007) 156 Cal.App.4th 151, 157, fn. 4.)
6
“[T]he so-called ‘common fund’ exception to the American
rule regarding the award of attorneys fees . . . , is grounded in
‘the historic power of equity to permit . . . a party preserving or
recovering a fund for the benefit of others in addition to himself,
to recover his costs, including his attorneys’ fees, from the fund of
property itself . . . .’” (Serrano v. Priest (1977) 20 Cal.3d 25, 35
(Serrano).) “[W]here [a party’s] efforts have not effected the
creation or preservation of an identifiable ‘fund’ of money out of
which they seek to recover their attorneys fees, the ‘common
fund’ exception is inapplicable.” (Id. at pp. 37-38.)
“The purpose of the doctrine is to allow a party, who has
paid for counsel to prosecute a lawsuit that creates [or preserves]
a fund from which others will benefit, to require those other
beneficiaries to bear their fair share of the litigation costs.
[Citation.] In other words, the common fund doctrine permits the
plaintiffs’ attorneys to recoup their fees from the fund.”
(Northwest Energetic Services, LLC v. California Franchise Tax
Bd. (2008) 159 Cal.App.4th 841, 878.) “Because the common fund
doctrine ‘rest[s] squarely on the principle of avoiding unjust
enrichment’ [citations], attorney fees awarded under this doctrine
are not assessed directly against the losing party (fee shifting),
but come out of the fund established by the litigation, so that the
beneficiaries of the litigation, not the defendant, bear this cost
(fee spreading).” (Lealao v. Beneficial California, Inc. (2000) 82
Cal.App.4th 19, 27.)
Bruno v. Bell
Pursuant to Bruno v. Bell (1979) 91 Cal.App.3d 776,
appellant may not recover attorney fees under the common fund
doctrine. In Bruno the court held that a pro se attorney may not
recover attorney fees under the common fund doctrine for two
7
reasons. First, “[n]o identifiable sum of money has been created,
preserved or recovered . . . .” (Id. at p. 783.) Second, “the
successful party litigant has incurred no liability for attorney fees
in winning the suit. Instead, [he] has chosen to volunteer his
own time and energy as counsel in pro. per. in pursuing his
action. Thus the underlying rationale of the theory that class
members who have monetarily benefitted from a representative’s
expenditure of attorney fees should be required to share the
burden of this expense−is eliminated.” (Ibid.)
Holding of Bruno Is Not Undermined by
Subsequent 1979 Supreme Court Decision
Bruno was decided eight months before the California
Supreme Court’s decision in Consumers Lobby Against
Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891(CLAM).) There, the court held that the Public Utilities
Commission (PUC) has jurisdiction under the common fund
doctrine to award “representative [not attorney] fees and costs” to
a nonlawyer who appears without counsel “in a representative
capacity” before the PUC in a quasi-judicial reparation action.
(Id. at pp. 897, 915.)5 In a footnote the court criticized prior
decisions holding that a pro se attorney cannot recover attorney
fees in a judicial proceeding: “[T]he logic of past decisions that do
not allow an attorney to recover fees when he appears on his own
behalf is unclear. Although such an attorney does not pay a fee
or incur any financial liability therefor to another, his time spent
in preparing and presenting his case is not somehow rendered
less valuable because he is representing himself rather than a
third party. Accordingly, it would appear he should be
CLAM was disapproved on other grounds in Kowis v.
5
Howard (1992) 3 Cal.4th 888, 896, 899.)
8
compensated when he represents himself if he would otherwise
be entitled to such compensation, absent a showing in a
particular case that such an award would place his interests in
conflict with those whom he represents.” (Id. at p. 915, fn. 13.)
The footnote supports appellant’s contention, but “it is pure
dictum.” (Trope, supra, 11 Cal.4th at p. 284.) As to the Supreme
Court’s holding in CLAM, the case is distinguishable because it
involved a nonlawyer appearing without counsel in an
administrative proceeding before the PUC, not a pro se attorney
such as appellant appearing in a judicial proceeding. In addition,
the nonlawyer appeared in a representative capacity on behalf of
others. The CLAM court noted that, in contrast to judicial
proceedings, “[i]n Public Utilities Commission proceedings . . . the
participants are not required to be licensed attorneys, and it is
common for such persons to make appearances on behalf of
others.” (CLAM, supra, 25 Cal.3d at pp. 913-914.) Unlike the
nonlawyer in CLAM, appellant insists that he “only represented
himself.” Finally, the nonlawyer in CLAM sought to recover
“representative fees for the reasonable value of his efforts,” not
attorney fees. (Id. at p. 898.)
An Attorney Who Represents Only Himself Cannot
Recover Attorney Fees Under the Common Fund Theory
The common fund theory permits a party to recover his
attorney fees from a fund he has created, recovered, or preserved.
“[T]he usual and ordinary meaning of the words ‘attorney’s fees,’
both in legal and in general usage, is the consideration that a
litigant actually pays or becomes liable to pay in exchange for
legal representation.” (Trope, supra, 11 Cal.4th at p. 280.) This
definition of “attorney’s fees” was the “established legal meaning
9
at the time the Legislature enacted [Civil Code] section 1717” in
1968. (Trope, at p. 282.) The legal meaning is the same today.
It follows that appellant may not recover attorney fees
under the common fund theory. Appellant did not expend
attorney fees or become liable for the expenditure of such fees.
“‘[O]ne who expends attorneys’ fees in winning a suit which
creates a fund from which others derive benefits, may require
those passive beneficiaries to bear a fair share of the litigation
costs.’” (Serrano, supra, 20 Cal.3d at p. 35.) “A party who acts on
his or her own behalf does not thereby generate an expense that
the party has become obligated to pay.” (Musaelian v. Adams
(2009) 45 Cal.4th 512, 517 (Musaelian).) Moreover, because
appellant represented himself, no attorney-client relationship
existed. “[B]y definition, the term ‘attorney fees’ implies the
existence of an attorney-client relationship, i.e., a party receiving
professional services from a lawyer.”6 (PLCM Group, Inc. v.
Drexler (2000) 22 Cal.4th 1084, 1092.)
6 See Duncan v. Poythress (11th Cir. 1985) 777 F.2d 1508(implicitly overruled by Kay v. Ehrler (1991) 499 U.S. 432 (Kay)),
diss. opn. of Godbold, C.J., at p. 1518: “[W]e have simply been
unable to find any definition which permits a decision that a pro
se lawyer has an attorney. Set forth in an Appendix to this
opinion are the definitions found in over two dozen dictionaries.
Without exception they define the word ‘attorney’ in terms of
someone who acts for another, someone who is employed as an
agent to represent another, someone who acts at the appointment
of another. A basic principle of agency law is that ‘[t]here is no
agency unless one is acting for and in behalf of another, since a
man cannot be the agent of himself.’ [Citation.] For there to be
an attorney in litigation there must be two people. Plaintiff here
appeared pro se. The term ‘pro se’ is defined as an individual
acting ‘in his own behalf, in person.’ By definition, the person
10
Public policy considerations support the denial of attorney
fees to pro se attorneys. The award of such fees would be
inequitable to a nonlawyer party who has not retained counsel
and therefore cannot qualify for an award of attorney fees. The
result “‘would in effect create two separate classes of pro se
litigants – those who are attorneys and those who are not – and
grant different rights and remedies to each.’ [Citation.] Such
disparate treatment between attorney and nonattorney litigants
would be viewed by the public as unfair, allowing only lawyer
litigants to qualify for fee awards.” (Musaelian, supra, 45 Cal.4th
at p. 519.)
“[C]ourts of our sister states have . . . recognized the
unfairness of such discrimination. For example, in Swanson &
Setzke, Chtd. v. Henning [(Idaho 1989)] 774 P.2d 909, 913, the
court declined to award attorney fees to an attorney litigant
primarily because ‘The system would be one-sided, and would be
viewed by the public as unfair, if one party (a lawyer litigant)
could qualify for a fee award without incurring the potential out-
of-pocket obligation that the opposing party (a nonlawyer)
ordinarily must bear in order to qualify for a similar award . . . .’”
(Trope, supra, 11 Cal.4th at p. 286; see also Smith v. Batchelor
(Utah 1992) 832 P.2d 467, 473-474, cited in Trope, supra, at p.
286 [“allowing pro se attorneys to recover fees while lay pro se
appearing ‘in person’ has no attorney, no agent appearing for him
before the court. The fact that such plaintiff is admitted to
practice law and available to be an attorney for others, does not
mean that the plaintiff has an attorney, any more than any other
principal who is qualified to be an agent, has an agent when he
deals for himself.”
11
litigants go uncompensated . . . discriminates between lay and
attorney litigants. It is a sufficient advantage to a lawyer-
litigant that he or she is capable of competently presenting his or
her claim without the need of retained counsel. Because we are
loath to enhance that advantage by giving the lawyer-litigant
recovery not only as a successful party, but also as that party’s
attorney, we hold that pro se litigants should not recover attorney
fees, regardless of their professional status”].)
The denial of attorney fees to pro se attorneys furthers the
legitimate policy of “discourag[ing] attorneys from electing to
appear in propria persona[.] . . . [S]uch self-representation may
often conflict with the general public and legislative policy
favoring the effective and successful prosecution of meritorious
claims. [In Kay, supra, 499 U.S. at pp. 437-438,] [t]he high court
observed that ‘Even a skilled lawyer who represents himself is at
a disadvantage in contested litigation. Ethical considerations
may make it inappropriate for him to appear as a witness. He is
deprived of the judgment of an independent third party in
framing the theory of the case, evaluating alternative methods of
presenting the evidence, cross-examining hostile witnesses,
formulating legal arguments, and in making sure that reason,
rather than emotion, dictates the proper tactical response to
unforeseen developments in the courtroom. The adage that “a
lawyer who represents himself has a fool for a client” is the
product of years of experience by seasoned litigators.’ [Citation.]”
(Trope, supra, 11 Cal.4th at p. 292; see also White v. Arlen Realty
& Development Corp. (4th Cir. 1980) 614 F.2d 387, 388 [“It is
axiomatic that effective legal representation is dependent not
only on legal expertise, but also on detached and objective
perspective. The lawyer who represents himself necessarily falls
12
short of the latter”].) There is also a danger that a pro se
attorney will lack expertise in the particular area of the law
under consideration. “Permitting a fee award to a pro se litigant,
even one who is a lawyer, would . . . ‘create a disincentive to
employ counsel.’” (Pietrangelo v. U.S. Army (2d Cir. 2009) 568
F.3d 341, 344.)
The denial of attorney fees to pro se attorneys will not
frustrate or undermine the purposes of the common fund rule.
“‘The bases of the equitable rule . . . appear to be these: fairness
to the successful litigant, who might otherwise receive no benefits
because his recovery might be consumed by the expenses;
correlative prevention of an unfair advantage to the others who
are entitled to share in the fund and who should bear their share
of the burden of its recovery; encouragement of the attorney for
the successful litigant, who will be more willing to undertake and
diligently prosecute proper litigation for the protection or
recovery of the fund if he is assured that he will be promptly and
directly compensated should his efforts be successful. ” (Quinn v.
State of California (1975) 15 Cal.3d 162, 168.) Because a pro se
attorney does not pay attorney fees, there is little risk that “‘his
recovery might be consumed by [his] expenses,’” resulting in “‘an
unfair advantage to the others who are entitled to share in the
fund.’” (Ibid.) An award of attorney fees is not necessary to
provide “‘encouragement of the attorney for the successful
litigant’” because a pro se attorney has not retained counsel.
(Ibid.)
The denial of attorney fees to pro se attorneys is supported
by Zucker v. Westinghouse Elec. (3d Cir. 2004) 374 F.3d 221(Zucker). There, an attorney successfully represented himself in
a shareholder derivative suit. He sought an award of attorney
13
fees under the common fund doctrine. The district court ruled
that the attorney was not entitled to fees because he had
represented himself and therefore had not incurred fees. The
attorney appealed.
Relying on Kay, supra, 499 U.S. 432, the Court of Appeals
affirmed. The court reasoned: “[A] rule barring attorney-
objectors from recovering attorney’s fees would blunt any
temptation of attorneys to ‘advance garden variety objections’ in
order to recover a salary of fees. . . . Denial of a fee award to
attorneys who represent themselves will serve as a prophylactic
to deter those attorneys, hopefully few, who may be guided by
financial incentives to pursue unnecessary litigation or to provide
representation that is not sufficiently guided by objective,
rational decision-making. And we decline to create such an
incentive today. [¶] . . . [W]e affirm the continued vitality of the
common fund doctrine and its ethos of making-whole litigants
who pursued shareholder-objector actions that have conferred a
material benefit upon a corporation. We merely decline to
endorse an interpretation of the common fund doctrine that
creates untoward incentives for attorneys to pursue unnecessary
actions for pecuniary gain or to pursue such actions without the
benefit of the reasoned and detached judgment that attends the
attorney-client relationship.” (Zucker, supra, 374 F.3d at pp. 229-
230, fn. omitted.)7
7
But see Moro v. State (Or. 2016) 384 P.3d 504, 513-514,
which criticized Zucker. The Supreme Court of Oregon concluded
that two self-represented attorneys were entitled to an award of
attorney fees under the common fund doctrine to avoid “the
unjust enrichment that would result from allowing nonparties to
enjoy the benefits of the litigation without contributing to the
costs of the litigation.” (Id., at p. 512.) The court explained:
14
Recovery of Costs Excluding Attorney Fees
Appellant notes: “[The trial court] denied costs on the same
basis [it] denied the [attorney] fees. [In its respondent’s brief]
Bank cites no authority that the common fund doctrine prevents
someone whose efforts help preserve the fund to be denied
reimbursement of costs.” (Record citations and some
capitalization omitted.)
The common fund doctrine permits “‘a party preserving or
recovering a fund for the benefit of others in addition to himself,
to recover his costs, including his attorneys’ fees, from the fund or
property itself . . . .’” (Serrano, supra, 20 Cal.3d at p. 35, italics
added; accord, City and County of San Francisco v. Sweet (1995)
12 Cal.4th 105, 110.) The doctrine “rests on the principle that
those who have been ‘unjustly enriched’ at another's expense
should under some circumstances bear their fair share of
the costs entailed in producing the benefits they have obtained.”
(Woodland Hills Residents Assn., Inc. v. City Council (1979) 23
Cal.3d 917, 943, italics added.)
If appellant were seeking costs under statutory authority
instead of the court-made common fund doctrine, as a prevailing
party he would be entitled to seek recovery of his costs excluding
“[T]he litigation benefited nonparty [Public Employee Retirement
System] members by invalidating [cost-of-living] reductions, and
both [attorneys] participated in the litigation by performing legal
work as lawyers. That remains true even though [they]
performed that work in a self-represented capacity. As a result,
[they] are entitled to an attorney-fee award necessary to avoid
unjust enrichment.” (Id. at p. 514.) A “special master
recommended no award of attorney fees . . . because they were
acting as pro se litigants rather than as attorneys.” (Id. at p. 509.)
15
attorney fees pursuant to Code of Civil Procedure section 1032
(section 1032). “Section 1032 is the fundamental [statutory]
authority for awarding costs in civil actions.” (Scott Co. of
California v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) “Section
1033.5 of the Code of Civil Procedure [section 1033.5] . . . specifies
the ‘items . . . allowable as costs under Section 1032.’” (Ibid.)
Attorney fees are one of many items allowable as costs under
sections 1032 and 1033.5. (See § 1033.5, subds. (a)(10), (c)(5)(A)
& (B).)
Since a prevailing pro se party is entitled to seek costs
excluding attorney fees under sections 1032 and 1033.5, a
prevailing pro se party should be entitled to seek similar costs
under the common fund doctrine. We perceive no reason why the
recovery of costs excluding attorney fees should be permitted as
to the former party but barred as to the latter party. Such
disparate treatment would be improper.
Thus, eligibility to recover costs excluding attorney fees is
not dependent on eligibility to recover attorney fees. The trial
court erroneously ruled: “[B]ecause he could not have incurred
fees, because he did not hire representation, therefore, the costs
would be ineligible as well.” The award of costs excluding
attorney fees under the common fund doctrine is a matter within
the trial court’s sound discretion. (Estate of Gump (1982) 128
Cal.App.3d 111, 118 [“application of the [common fund] doctrine
is committed to the sound discretion of the court”].)
Judicial Notice
Appellant claims that the trial court erroneously denied his
request for judicial notice of five documents filed in Gallegos’s
prior appeal and an unpublished opinion in an unrelated case.
16
The court stated, “These issues have already been addressed by
the appellate court.”
We need not determine whether the trial court erred in
denying the request for judicial notice. If it had erred, a reversal
would be required only if the error had resulted in a miscarriage
of justice. Appellant has failed to show that the alleged error
prejudiced him. (See Cal. Const., art. VI, § 13 [no reversal if
error did not result in miscarriage of justice]; Code Civ. Proc., §
475 [no judgment shall be reversed by reason of any error unless
the error was prejudicial and a different result would have been
probable without such error]; Paterno v. State of California (1999)
74 Cal.App.4th 68, 106 [“Because of the need to consider the
particulars of the given case, rather than the type of error, the
appellant bears the duty of spelling out in his brief exactly how
the error caused a miscarriage of justice”].)
Disposition
The order denying appellant’s motion for attorney fees is
affirmed. The order denying his motion for costs excluding
attorney fees is reversed. The matter is remanded to the trial
court with directions to conduct a noticed hearing and exercise its
discretion whether to grant appellant’s motion to recover his
claimed costs excluding attorney fees under the common fund
doctrine. We express no opinion as to how the trial court should
rule on this issue. The parties shall bear their own costs on
appeal.
17
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
18
Roger L. Lund, Judge
Superior Court County of Ventura
______________________________
John L. Poole, in pro. per., for Objector and Appellant.
Musick, Peeler & Garrett and Cheryl A. Orr, for Objector
and Respondent.