LAW OFFICES OF
GELLER & STEWART, LLP
Post Office Box 7599, Moreno Valley, CA 92552-7599
May 9, 2012
Our File No.: 10393-115
Mr. Hallen Rosner
Rosner Barry & Babbitt
10085 Carroll Canyon Road Suite 100
San Diego, CA 92131
Re: Raceway Ford Cases Costs and Fees Award
Sent via Email & US Mail
I am told that through Angela Smith, there was a request to consolidate the appeal of the underlying case with that for the likely appeal on the attorney’s fees award. And I am of the understanding that while we will consent to the consolidation for purposes of oral argument, we will not stipulate to consolidate the two appeals for briefing purposes.
While Hawk stated the appeal of the attorney’s fees and costs award was a foregone conclusion, there are a number of issues that you should consider. It is not my intention to suggest to you how to practice law or provide legal advice, but these are serious issues you must consider before appealing the attorney’s fees and costs issue.
I am obliged to tell you that if you file an appeal of the order on the fee motion, Raceway will file a cross-appeal, challenging the portion of Judge Holmes’ order that declined to impose fees and costs on the seven plaintiffs who dismissed on the eve of trial. To refresh your recollection, those plaintiffs were Ernest Myles, Helen Flores, Gloria Mendez, Rosana Martinez, Zenaida Diaz, Elisha Mejia and Mable Armstrong.
Although we understand Judge Holmes’ analysis under Civil Code §1717 for contractual fee awards, we don’t believe the rule is the same for ASFA fee awards, and therefore, the court should have held these seven plaintiffs liable to the same extent as your other clients. If the rule were as Judge Holmes’ order supposed, then there would be nothing to dissuade people from filing frivolous ASFA claims.
I think once the case is filed, there is an obligation to attorney’s fees as there is for costs. The dismissal of a claim does not remove the obligation to pay costs and attorney’s fees under ASFA and are just another element of costs so, as such, I am not aware of any case law that would support otherwise. As such, unless you are completely successful on appeal, these 7 plaintiffs who are now free of any obligation in this case whatsoever, could be obligated to joint and several liability in excess of the 1.5M that has already been awarded, due to the possible imposition of post-judgment attorney’s fees and about $410.00 per day of interest accruing on the award. We will not appeal the judge’s ruling dismissing the 7 plaintiffs if the remaining plaintiffs do not appeal the award.
If you go forward with an appeal of the fee award, we believe you will be favoring the interests of the 12 over the interests of the seven, subjecting the seven to a wholly unnecessary risk of significant financial liability. Under such circumstances, certainly an actual conflict of interest will have arisen between your clients.
As you must know, the rules of professional responsibility require, at minimum, that you should have obtained all of your clients’ informed written consents to joint representation at the outset of your representation. Furthermore, if a potential conflict becomes actual (as it has here), and no such consents were obtained at the outset, it’s too late to get consents now, and your firm is required to withdraw from both sets of clients.
Accordingly, Raceway hereby notifies you that it reserves its right to challenge your sufficiency as class counsel in the face of these changing circumstances... I sent this to you since yours is the first name on the firm. Do what you want with this but we just wanted to be sure you were aware of how we are going to handle this.
Geller & Stewart, LLP
Michael S. Geller
Cc: Christopher “Hawk” Barry [email and US Mail]; Kellie Christianson [via email only]