Panoply Of Issues Faced In This Decision.
In Lemaire v. Covenant Care California, LLC, Case No. B266493 (2d Dist., Div. 6 Feb. 27, 2017) (unpublished), plaintiff filed a complaint based on wrongful death, elder abuse, and "patients' rights" violations under Health and Safety Code section 1430(b) for treatment of her mother in a skilled nursing facility run by defendant. The jury found against plaintiff on certain claims, but found for her on the patient's rights claims, determining the defendant committed 540 violations under different categories of the H&S Code scheme. In a prior appeal, the appellate court reversed a statutory damages award. The trial judge eventually decided plaintiff, as the prevailing party under Health and Safety Code section 1430(b), was entitled to attorney's fees of $589,290, a 30% reduction, at the trial level; $112,500 in attorney's fees expended in the prior appellate proceeding; and $85,581.08 in trial costs for prevailing at the trial level. The trial court also ruled that defendant had to post a bond to stay enforcement of the fee and costs award.
Defendant appealed, winning a little relief but not most.
Because plaintiff did vindicate rights applicable to all patients at defendant's nursing home, fees were properly awarded under the H&S Code fee entitlement statute. The amount awarded in fees was reasonable, given the large number of H&S Code violations and the trial judge's 30% reduction in the trial fees requested. Fees on appeal were properly awarded to plaintiff given than the case involved important issues of first impression.
However, with respect to the costs award, a reversal was warranted. Expert fees are not specifically mentioned as costs under H&S Code section 1430(b) such that they are not expressly authorized. That brought the 2/6 DCA to deciding whether the defendant had to post an undertaking for a fees and costs award. Answer: "no," given that this was not an exceptional SLAPP fee/costs award (where an undertaking is required) such that generally no undertaking was required in this non-SLAPP case. (Ziello v. Superior Court, 75 Cal.App.4th 651, 655 (1999).)