Abuse of Discretion of Standard Will Yield Where Record Shows What Lower Court Really Did.
Although we doubt that it will make that much difference on remand, Kaye v. Van Putten, Case Nos. F058513/F059269 (5th Dist. Mar. 21, 2011) (unpublished) demonstrates that a fee award stands to be reversed and remanded where a lower court reverses itself on a tentative but does not make adjustments in the final order in favor of the defense.
In this one, the defense won an anti-SLAPP motion on grounds that were affirmed on appeal. However, that left consideration of the matter of the fee award ordered in defendants’ favor to the tune of $64,000 (out of a requested $97,244.50)--not an insubstantial award, as co-contributor Mike can attest (after all, he was born in and clerked for an appellate court in Fresno). Plaintiff appealed on the basis this was too much (not a good appeal based on the deferential abuse of discretion standard), while the defense claimed not enough was awarded.
Result? Minor victory for the defense.
Although this might have been an affirmance on most days, the defense showed that the trial court reversed itself on two time reductions during the ruling process, but did not adjust the fees when it came to the final fee award order. This meant that these two adjustments needed to be considered on appeal, although the end result likely would seem to be a slight increase in the $64,000 award plus costs for winning the appeal.
Plaintiff was bummed, because he wanted fees capped at $15,000. However, the appellate court decided that the lower court did not have to accept this pro-plaintiff position given the fees actually incurred by the defense (a factual call, after all).