Appellate Court Felt Denial Of Compensation To Successful Appellate Counsel Was Not Fair, But Opinion Has Further Far-Reaching Consequences As Far As What Type of Fee Substantiation Suffices.
The abuse of discretion standard on fees award is difficult to surmount. However, it may not be such a tremendous hurdle if the rights facts are present, as they were in Gonzalez v. Santa Clara County Dept. of Social Services, Case No. H041997 (6th Dist. Feb. 28, 2017) (published).
In this one, plaintiff successfully challenged an administrative order declaring that she should be reported to the statewide child abuse index for what was deemed excessive discipline of her 12-year old daughter, based on a victory in a prior published appellate decision involving first impression issues.
Plaintiff then moved to recover fees primarily under the private attorney general statute, with the lower court awarding only $7,500 in fees for her current counsel but denying another $53,000 in fees for three prior attorneys.
The appellate court could not stomach the result, reversing even though the deferential abuse of discretion standard applied. The most troubling aspect was denial of fees as to the appellate attorney successfully prosecuting the prior appeal. Even though the fee petition substantiation was far from compelling (such as failure to justify an hourly rate), the reviewing court did not believe this countenanced a complete denial of fees. As to another attorney, the Sixth District found it difficult to find why a concession that some amount was owed should not have been awarded in the wake of a "failure to authenticate" objection never raised at any time by the defense (except by the trial court sua sponte). In interesting reasoning which may be raised in subsequent fee substantiation issues, the appellate court reasoned that the failure to include any evidence of attorneys' qualifications or the reasonableness of hourly rates did not justify a complete denial of fees once the performance of activities was adequately established—a substantiation ruling which will be interesting to gauge as far as application in future cases. Finally, as to another attorney, the appellate court did rule that a $15,000 flat fee for services was not per se unreasonable, but could be found reasonable based on the total factual circumstances at play.
The ultimate result is that a "re-do" is going to happen on remand as far as the other three attorneys.