CALIFORNIA ATTORNEY'S FEES

In The News . . . . What Has Lindsay Lohan Spent On Legal Fees In Last Few Years?

 

Only the Oracles May Know, But We Do Have a Reported Estimate!

     As reported in a February 2, 2012 post at Huffpost Celebrity, Lindsay Lohan--and who better to post on--has gotten a lot of publicity on numerous matters in the past few years. However, some of the matters have required both civil and criminal lawyers to handle them. No one knows the price tag, but attorney Vikki Ziegler has estimated her attorneys’ costs to be at least hundreds of thousands of dollars and likely over a million. Attorney Joey Jackson was quoted as saying a $250,000 base was involved. Zowie, Batman!

Celebrities/Special Fee Shifting Statute: Orthopedic Surgeon Did Prevail In Commercial Name Misappropriation Case So That $320,000 Fee Award Was Proper

 

Civil Code Section 3344(a) Does Not Require Fees to Bear a Percentage to Ultimate Recovery.

     Well, readers, we are winding to a New Year, but we will blog on a special-fee shifting statute applicable in commercial name misappropriation cases--Civil Code section 3344(a), which has a mandatory fee-shifting provision. The next case we discuss did have occasion to pass on the reasonableness of a $320,000 fee award to the winning plaintiff under this statute.

     Orthopedic Systems, Inc. v. Schlein, Case Nos. A126374/A126821 (1st Dist., Div. 4 Dec. 29, 2011) (certified for partial publication; fee discussion not published) involved an orthopedic surgeon who had his name associated with an orthopedic product and who had been paid royalties for a decade by plaintiff/cross-defendant orthopedic products company. Then, suddenly, company cut off the royalties, bringing a declaratory relief action on its ability to do so, prompting surgeon to file a cross-complaint alleging breach of contract, conversion, and commercial misappropriation of his name under Civil Code section 3344.

     The matter proceeded to a jury trial, where surgeon won damages of $616,043, lost profits of $1,220,000 (taken away by the trial judge but restored by the appellate court in this decision), and statutory section 3344 damages of $750. The lower court also awarded surgeon $320,000 in fees as the prevailing party under section 3344(a).

     Various cross-appeals were brought, with the company challenging the award of post-judgment fees to the surgeon.  The surgeon’s fee award was affirmed.

     Section 3344(a)’s fee-shifting provision is mandatory in nature. Surgeon did prevail because he recovered both $750 in statutory damages and $1,220,000 in lost profits. However, even if the lost profit award was disregarded, section 3344(a) does not require actual damages, so that the statutory damages award sufficed--especially given legislative history indicating that attorney’s fees under the provision did not have to bear a percentage to the ultimate recovery. (The cited legislative history expressed that fee recovery should be based on time expended rather than the amount of recovery.) Beyond that, no allocation was required between noncompensable claims, because these claims were inextricably intertwined with the fee-entitling misappropriation claim.

Family Law: Second District, Division Two Upholds Fee Award in Family Court Involving TV Costar of Two and a Half Men

 

Who “Won” is Irrelevant Here.

     Often, the Court’s retelling of the facts gives us more than an inkling of the ending.

     Here, the statement of facts begins:

”Jon and Sarah have both had acting careers, though their career paths diverged widely.  As a costar in the TV show Two and a Half Men, Jon’s career soared.  In contrast, Sarah’s career stalled; it appears her last acting job was in 2005.” 

     If after reading this poignant beginning, you guessed that the Court of Appeal would uphold the award of attorney’s fees in favor of Sarah, you guessed right. In re Marriage of Jon and Sarah Trigger Cryer, Case No. B222906 (Second District, Div. 2 August 29, 2011) (certified for publication).

     On appeal, the Court reviewed whether the family court abused its discretion by declining to order a more severe reduction of child support and whether it erred by denying a request for accounting or trust for child support funds (it did not).  Because the Court also found that the ordered attorney’s fees awards were proper, we post.

     The outcome regarding attorney’s fees was largely ordained by the standard of review:  “[a]n award of fees and costs in a dissolution or related family law proceeding is a matter left to the trial court’s sound discretion, and absent ‘a clear showing of abuse, its determination will not be disturbed on appeal.’” 

     Two points (well, maybe one) are worth comment. 

     First, Jon Cryer actually won a motion below – but the trial court awarded fees against him in that proceeding.  The Court of Appeal reminds us that, for some purposes,  “the issue of who ‘won’ the motion is irrelevant.  Although an order modifying a support order may include an award of attorney fees to the prevailing party (see section 3652), such an award is proper only if a section 2030 needs-based award is not warranted.”  Thus, for some purposes – to wit, whether a needs-based award is warranted – being the prevailing party is irrelevant.

     The second point, which may not be worth reporting on (but which caught our eye), is that Sarah Trigger Cryer argued that the child support obligation of $10,000 per month only constituted around 3 percent of her ex’s income at the time.  Jon also submitted an income and expense declaration listing average monthly income of $474,861, based on a three-year average cash flow, but Sarah claimed that Jon’s monthly income as of 2009 was actually $791,666.

     BLAWG BONUS:  Jon Cryer is a graduate of The Bronx High School of Science.

In The News . . . . Ahhrnold Does Not Want To Pay Maria’s Divorce Fees, San Bernardino Director Wins Fees In Discrimination Suit, and New Study Shows That Barely Half of Attorney’s Fees In Forest Service Cases Go To Environmental Groups

 

Schwarzenegger-Shriver Divorce Heats Up.

     In a July 21, 2011 post by Jill Stewart at laweekly.com, Arnold Schwarzenegger, in recently filed dissolution papers, has balked at paying any divorce attorney’s fees to Maria Shriver. His attorney indicated that both sides should pay for their own attorney’s fees in the pending dissolution action.

San Bernardino Public Employee Plaintiff Awarded Over $530,000 in Fees.

     Melissa Pinion-Whitt, in a July 22, 2011 article in San Bernardino/Inland Empire’s The Sun, reports that San Bernardino County Superior Court Judge Frank Gafkowski (who sits in Joshua Tree) awarded Edward C. Norton, San Bernardino City Unified School District’s maintenance and operations director, $535,129 in fees and costs after he won a harassment/retaliation lawsuit against the District and top administrator earlier this month.

Environmental Groups Do Not Get All Attorney’s Fees Awarded in Forest Service Cases.

     In a new study authored by M.J. Mortimer and R.W. Malmsheimer--which was published in the September 2011 issue of the Journal of Forestry--these researchers studied Equal Access to Justice Act (EAJA) fees paid by the Forest Service between 1999 and 2005. According to the study, the Service paid out $6,137,584 during that period, but only $3.2 million (52%) went to the prevailing environmental groups in the 14 cases, contrasted with commodity groups, law firms, attorneys, and individuals garnering about $1.4 million and with $1.5 million going to unlisted recipients.

     EAJA is a federal fee-shifting statute which allows citizens, nonprofits, and others to collect fees when they prevail in court cases and show the government’s position was not “substantially justified.” The income received by the environmental groups from the Forest Service was a tiny percentage of total revenues for the groups, debunking the myth that environmental groups get rich off of these cases. The authors of the study were also unable to conclude that the availability of EAJA fees caused more frequent filing of lawsuits of this ilk.

     More details on this study are available for reading at a July 22, 2011 release at the Center for Biological Diversity’s website, which we thank for the informative release.

In The News . . . . Mel Gibson Asked To Reimburse A Lot Of Oksana’s Fees And City Of Laguna Wood Hit With Substantial Fee/Expert Expense Award In Eminent Domain Case

Lawyers Requesting Over $1.5 Million More in Gibson Dissolution Proceeding.

     As reported in a January 27, 2011 post by the TMZ staff, Oksana Grigorieva’s lawyers are asking Los Angeles County Superior Court Judge Scott Gordon--the same judge who heard the McCourt case--to order Mel Gibson to pay substantial attorney’s fees on top of $500,000 in fees previously awarded so that Oksana can fight it out in court. Her current lawyers are asking for $1.2 million in fees for work performed since September 2010, another firm is asking for $250,000, a third lawyer wants $163,000 for one month’s work, and other lawyers/firms are requesting hundreds of thousands more. Judge Gordon has yet to rule on the latest requests.

City of Laguna Woods Ordered to Pay Raintree Realty $851,005.94 In Eminent Domain Lawsuit.

     Claire Webb, in a January 26, 2011 post in the on-line version of The Orange County Register, reports that a superior court judge on January 22 ordered the City of Laguna Woods to pay $851,005.94 in attorney’s fees and expert expenses to property owner Raintree Realty in eminent domain proceedings related to the acquisition of the City Hall Building after a jury verdict in Raintree’s favor. The superior court judge found Raintree’s final demand for compensation reasonable while the city’s final offer was adjudged to be unreasonable in nature. However, the judge disallowed $49,911 in travel expenses. In our category “Eminent Domain,” we have explored two recent cases discussing the comparative final demand approach factors used in granting/denying fee/litigation expense awards. See People ex rel. Dept. of Transportation v. Acosta, 178 Cal.App.4th 762 (2009) [discussed in our October 26, 2009 post]; Tracy Jt. Unified School Dist. v. Pombo, 189 Cal.App.4th 889 (2010) [discussed in our October 30, 2010 post]. Looks like City will appeal, which may well produce another decision in the eminent domain jurisprudential arena.

Celebrities/SLAPP: Pageant Is Seeking To “SLAPP” Beauty Queen’s Lawyer’s Lawsuit

Case Arises Out of Settlement Reached With Former Miss California USA Carrie Prejean.

     Seems like lots of controversy as well as lawsuits arise out of beauty queen pageants. Also seems like celebrity lawsuits result in a lot of SLAPP motions. The next “in the news” item is no exception.

     As reported by a January 17, 2011 post in The Beverly Hills Courier, a law firm defending the Miss California USA pageant has moved in Los Angeles County Superior Court to “SLAPP” a lawsuit brought by an attorney who represented Carrie Prejean, a Miss California USA stripped of her title putatively because she missed scheduled appearances and failed to repay a breast implant loan. The lawsuit basically alleges that Ms. Prejean’s attorney reduced his attorney’s fees in exchange for the pageant maintaining the secrecy of a settlement between the pageant and the beauty queen, where Ms. Prejean received nothing but her attorney received $110,000 in fees as part of the settlement. (Rumor has it that the case settled largely because the pageant officials had a sex tape of Ms. Prejean – see Larry King interview.)

     The hearing on the motion is scheduled for February 17, so we assume that there will be a follow-up post unless matter, too, is confidentially resolved.

Celebrities: Lucasfilm Tentatively Ordered To Pay Nearly $1.3 Million In Attorney’s Fees To Winning Lawyers In Pregnancy Discrimination Case

Plaintiff Had Won $113,830 In Compensatory Damages From a Jury Earlier.

     As reported by Gary Klien and Erin Sherbert in respective January 13, 2011 posts of the Marin Independent Journal and SF Weekly, Marin County Superior Court Judge Lynn O’Malley Taylor tentatively ruled on Thursday, January 13 that Lucasfilm Ltd. should pay nearly $1.3 million (out of a requested $1.5 million) in attorney’s fees to the lawyers who won a pregnancy discrimination suit against the company. Plaintiff won $113,830 in past economic losses after a lengthy jury trial. The fees apparently were awarded under California’s private attorney general statute, with Judge Taylor observing that plaintiff’s lawyers risked hundreds of hours on a difficult case. A Lucasfilm spokesperson said the company will appeal the jury verdict and the fee ruling if the tentative stands. One blogger noted that the lawyers gained fees that were ten times the amount of the compensatory award, which is frequently the case in civil rights cases.

In The News/Retainer Agreements: L.A. Superior Court Judge Allows Spector Challenge To Criminal Retainer Agreement To Proceed Before A Jury

 

Criminal Defense Attorney Robert Shapiro’s Summary Judgment Bid Rejected.

     As reported by Adam Popescu in a December 17, 2010 online post of the Beverly Hills Courier, noted criminal defense attorney Robert Shapiro’s firm had a retainer agreement to provide legal services to now imprisoned, music producer Phil Spector. Mr. Shapiro claims that the retainer was a nonrefundable $1 million arrangement, while Mr. Spector has sued claiming that he was taken advantage of and that the $1 million should be refunded to him. (It was reported that Mr. Shapiro has said that his firm put in the equivalent of $186,000 in hours on the Spector case.) Recently, Los Angeles County Superior Court Judge Malcolm Mackey denied Mr. Shapiro’s firm’s summary judgment motion bid, ruling that the case should go the jury because there were factual issues for it to resolve.

     BLAWG Bonus:  We note that Phil Spector’s birthday is just around the corner, as he was born on Christmas day.

In The News . . . . Speculation Swirls About Whether Frank McCourt Will Sue Bingham McCutchen For Malpractice, Seeking Recovery Of Fees Incurred In His Battle With Ex-Wife Jamie

 

The National Law Journal Article Elicits Views from Malpractice Experts.

     In a December 13, 2010 article by Amanda Bronstad on The National Law Journal website, some attorneys and at least one law professor opined on whether Frank McCourt has viable malpractice theories against Bingham McCutchen, his attorneys charged with drafting a 2004 marital settlement property agreement to memorialize that the Los Angeles Dodgers had been “transmuted” into his separate property rather than being community property shared with ex-wife Jamie McCourt.

     Earlier this year, Los Angeles County Superior Court Judge Scott Gordan invalidated the 2004 agreement relied on by Mr. McCourt.

     There are estimates that each side in the McCourt legal battle spent $10-20 million each. Some of the legal experts surveyed in the article expressed the opinion that the legal fees paid by Mr. McCourt--whether his own or any fees that he is ordered to pay to Jamie McCourt--would be a large recoverable component in any malpractice case.

     We will be keeping up on this one when and if it develops.

In The News . . . . Will Ferrell And Larry David Hit With $600,000 Adverse Fee Award In Lost Securities Arbitration

Two Claimants Also Held Liable for $22,500 in “Discovery Abuses.”

     Larry Hagman, who played the infamous J.R. on the T.V. show Dallas, sued Citigroup for securities trading claims, garnering an award of $1.1 million in compensatory damages and $10 million in punitive damages to be donated to charities of his choice.

     Other actors have not fared as well as Mr. Hagman when it comes to suing in this area.

     Recently, as reported in a November 18, 2010 post on forbes.com, visible funny man Will Ferrell and Curb Your Enthusiasm’s Larry David had securities claims against Bear Stearns/J.P. Morgan for unauthorized/unsuitable securities purchases dismissed in an arbitration by the Financial Industry Regulatory Authority. But there was a big ouch associated with the dismissal. Messrs. Ferrell and David had to reimburse J.P. Morgan for $600,000 of its attorney’s fees. Also, these two gentlemen also were found liable for $22,500 in “discovery abuses,” although we are unclear if this was assessed against them personally, their attorneys, or both.

     Looks like J.R., by far, did the best in prosecuting his claims for unauthorized securities trading.

In The News . . . . Chuck Yeager Hit With $275,596 In Attorney's Fees In Right Of Publicity Suit

Award is Mentioned in Recent California Lawyer Article.

     As reported by Matthew Heller in an article in the October 2010 edition of the California Lawyer, iconic test pilot Chuck Yeager has brought some right of publicity lawsuits, obtaining mixed results. However, Mr. Heller notes that retired Air Force Major General Yeager lost a suit against some memorabilia collectors, now owing them attorney's fees of $275,596 as a result of the loss. The judgment creditors apparently have filed a notice of lien in another case he has against AT&T which is steaming towards a projected trial later this year.

     The reason for the award, we surmise, is because California's right-of-publicity statute has a fee-shifting provision that mandates an award of fees to the prevailing party. (Civ. Code, § 3344(a).)

     Mr. Heller's article is aptly titled, "The Rights Stuff."