Appealing Defendant Picked Its Spots On Appeal, Awarded As Being Selective!
This next case is an illustration where a non-prevailing defendant on peripheral claims appealed selectively on an adverse attorney’s fees and costs award, handsomely awarded by being discreet in what it appealed.
In Ajis v. Foreman Financial, Inc., Case No. B280208 (2d Dist., Div. 1 July 31, 2018) (unpublished), a much more peripheral defendant sued as an assignee of a vehicle sales contract did some nice things on appeal which we commend to all of your readers in these types of limited situations.
What happened here was that an assignee of a vehicle sales contract got caught up in various consumer and debt statute collection statutes mainly targeted against the assignor, but some of the debt collection statutes pointed at assignee even though assignee sought to unwind the whole assignment. Eventually, after a lot of litigation, a trial court (after a bench trial) entered most claims against the assignor but did enter one claim against assignee under the state Rosenthal Act even though the loan was not really finalized. The signed judgment reflected the limited recovery against assignee, with assignee liable for $800 in damages on the Rosenthal Act claim. But, then, the real battle. Plaintiff sought $7,400 in expert witnesses’ fees and a little shy of $98,000 in attorney’s fees.
Assignee opposed the motion that no recovery was allowable for expert witness costs and that it could only be liable for the Rosenthal Act reasonable attorney’s fees. The lower court found everything was interrelated, granting the expert witness fees and $ 89,437.50 in fees against assignee.
Assignee appealed, prevailing in most respects. But, it did pick its spots carefully.
The judgment against appealing assignee confirmed that it was only liable on the Rosenthal Act claim, with assignor liable on the car merchantability and related claims. With this conclusion, it was an abuse of discretion to not apportion fees against appealing defendant only as to the Rosenthal Act claim. Apportionment was possible based on the billing submitted by plaintiff fee claimant. With respect to expert witness fees, nothing in the Rosenthal Act defines expert witness fees as costs such that they were not recoverable. (Civ. Code, § 1788.30(c). So, the expert witness costs award went POOF! and the fee award was reversed with apportionment directions—but because, in our view, appellant carefully selected its points for review which ultimately won.