Fee Award Of $126,974.13 Goes Poof !
The Sixth District has overturned a fee award to an unfortunate dental patient for injuries arising from negligently performed dental work because private enforcement of the public right vindicated was unnecessary – a predicate for recovery of fees under California Code of Civil Procedure, section 1021.5. Bui v. Nguyen, Case No. H039310 (6th Dist. Oct 28, 2014).
The patient received significant relief: $150,000 against Hi-Tech Dental, Inc., and $50,000 against Hi-Tech’s owner and dental assistant. Additionally, the patient obtained an injunction requiring the dental assistant to identify herself as a dental assistant, not a dentist, in advertising, and to refrain from wearing a white dental lab coat.
Notably, the trial court “found that a significant public benefit resulted from enjoining further violations of Business and Professions Code sections 17200 and 17500.” Also, the trial court found that private enforcement was necessary, and that in the interest of justice, attorneys’ fees should not be paid out of the recovery. Declarations submitted by plaintiff pointed to the unlikelihood of public enforcement.
So why was the fee award reversed?
The Court of Appeal rejected the declarations that pointed to the unlikelihood of public enforcement as conclusory and lacking in specificity.
According to the Court of Appeal, “[t]here was no substantial evidence presented from which the court could have reasonably concluded that the third criterion – necessity of private enforcement – had been met.”
Taking issue with a statement in Professor Richard Pearl’s treatise on California attorney’s fees that “the private enforcement requirement limits fees only when private enforcement is demonstrably unnecessary,” the Court states:
“The applicant bears the burden of establishing each criterion required for an attorney fee award under section 1021.5, including the necessity of private enforcement [citation], and the court must ‘consider all circumstances bearing on the question of whether private enforcement was necessary.’ [citation].” (footnote 9).