Appellate Court Does Remand to Consider “Fees on Fees” Request.
The next case is an interesting one with respect to using fee experts when moving for fee recovery. Where the expert has published a treatise, the Court of Appeal may use that treatise against the fee claimant’s position. That happened in the next decision we review.
In Garcha v. Central Plaza-Union City, L.P., Case Nos. A122152, A123850 (1st Dist., Div. 2 Dec. 23, 2009) (unpublished), tenants won a “use exclusivity” lease dispute against landlord, being awarded $37,725 for breach of lease and declaratory relief counts (after the trial court rejected fraud and misrepresentation claims) albeit seeking damages of over $110,000. (This merits determination was affirmed on appeal.) Tenants then sought to recover attorney’s fees of $246,406 (after discounting 15% off a $289,889 lodestar), plus the fees and costs of bringing the fee motion (which we refer to as “fees on fees”), based on a fees clause in the pertinent lease. The trial court awarded fees and costs of $85,537, although omitting any reference to awarding any amount of the requested “fees on fees” of $24,649. Tenants appealed, claiming the fee award was too low.
For the most part, Justice Richman, on behalf of a 3-0 panel of the First District, Division 2, affirmed.
In upholding most of the award, the appellate panel engaged in a nice discussion of fee reasonableness factors that can be considered by trial judges, who have large discretion in setting the amount of fees/costs to be awarded. The factors are nicely summarized in PCLM Group v. Drexler, 22 Cal.4th 1084, 1095-1096 (2000) [one of our Leading Cases]. For example, the following factors were properly used to discount the fees requested by tenants: (1) duplicative attorney work was excluded; (2) tenants only had limited success, succeeding only on the contractual claims and only against one defendant for an amount that was only about a third of the requested damages; (3) the fees clause was “narrow,” only permitting recovery on the contract claims and permitting the trial court to apportion out non-covered tort claims; and (4) tenants only had limited success on several law and motion matters.
However, the appellate panel did believe that the trial judge—who they commended for his thoughtful fees opinion—might have inadvertently omitted ruling on the “fees on fees” request, requiring a remand to see if this was so.
BLOG UNDERVIEW—Among others, tenants used Richard Pearl as an expert in the fee proceeding. Mr. Pearl has written a CEB treatise on attorney’s fees. (Incidentally, co-contributor Mike deposed him a number of years ago in a lawsuit involving collection of allegedly delinquent fees.) In discussing the trial court’s ruling, the appellate panel did use some excerpts from Mr. Pearl’s treatise that ran contrary to the positions being asserted by tenants in the fee contest. So, if you are using an expert who has published widely, be prepared to “take as well as receive” with respect to the expert’s written commentary. Or, as an attorney was once heard to pray, “Oh Lord, may my opponent’s expert have published.”