Part 2 of 2—End of a Prolific Year For Fees/Costs Decisions.
As we have done in past years, wishing all readers the happiest of holidays, we now present our top 30 published decisions from California appellate courts, the United States Supreme Court (SCOTUS), and the Ninth Circuit for the 2016 year. For past years, we have done a “Top 20,” but this year was especially prolific for decisions involving attorney’s fees/costs issues. This list is not meant to slight other important decisions in certain areas, but these are the ones that “rose to the top” from our perspective. We posted on December 27, 2016 with the first 15 of selected decisions and now complete with the final 15. The number of ranking is not geared at all to the decision’s relative importance, and we do not mean to overlook other published decisions—not to mention the wealth of unpublished decisions on fees/costs issues. Here we go on the final 15:
15. SANCTIONS—San Diegans For Open Government v. City of San Diego, 247 Cal.App.4th 1306 (4th Dist., Div. 1 June 7, 2016)—authored by Justice McDonald; discussed in our June 9, 2016 post: Code of Civil Procedure section 128.5 applies to cases pending as of January 1, 2015 even though sanctioned conduct occurred before this date; section 128.5 does not require compliance with CCP § 128.7’s safe harbor requirements; section 128.5 claimant need only show objective unreasonableness, not subjective bad faith.
14. INSURANCE—Nickerson v. Stonebridge Life Ins. Co., 63 Cal.4th 363 (Cal. Supreme Court June 9, 2016)—authored by Justice Kruger; discussed in our June 9, 2016 post: Brandt attorney’s fees to a prevailing party in an insurance bad faith case must be considered in adjudging reasonableness of punitive/compensatory damages ratio.
13. CLASS ACTION—Lafitte v. Robert Half International, Inc., 1 Cal.5th 480 (Cal. Supreme Court Aug. 11, 2016)—authored by Justice Werdegar; discussed in our Aug. 15, 2016 post: Trial judges can use the percentage of recovery fee approach for purposes of awarding fess in a common fund class action case, with the trial judge not shackled to using only the lodestar approach in an appropriate case.
12. SECTION 998—Ignacio v. Caracciolo, 2 Cal.App.5th 81 (2d Dist., Div. 8 Aug. 3, 2016)—authored by Justice Rubin; discussed in our Aug. 3, 2016 post: Code of Civil Procedure section 998 offer was invalid where offer contained general (rather than lawsuit-specific) claim releases and where Civil Code section 1542 waivers were included, although broad party descriptions did make offer infirm in nature.
11. ALLOCATION/SUBSTANTIATION OF REASONABLENESS OF FEES—Marriage of Nassimi, 3 Cal.App.5th 667 (2d Dist., Div. 4 Sept. 26, 2016)—authored by Justice Manella; discussed in our Sept. 27, 2016 post: Requesting party properly denied attorney’s fees where party failed to prove reimbursable fees based on block billing-riddled fee submissions and failed to allocate fees between compensable/non-compensable claims.
10. BANKRUPTCY—Deocampo v. Potts, 2016 WL 4698299 (9th Cir. Sept. 8, 2016)—authored by Circuit Judge Wardlaw; discussed in our Sept. 8, 2016 post: City’s Chapter 9 bankruptcy plan did not discharge attorney’s fees award against individual officers in excessive force case, although officers may be entitled to indemnification under California Government Code section 825.
9. APPEALABILITY—Nellie Gail Ranch Owners v. McMullin, 4 Cal.App.5th 982 (4th Dist., Div. 3 Oct. 27, 2016 [certified for publication])—authored by Justice Aronson; discussed in our Oct. 3 and Oct. 30, 2016 posts: Losing homeowner’s failure to separately appeal fee order or amended judgment incorporating fee order meant that appellate court lacked jurisdiction to entertain fee challenge on appeal.
8. INDEMNITY—Alki Partners, L.P. v. DB Fund Services, LLC, 4 Cal.App.5th 574 (4th Dist., Div. 1 Oct. 25, 2016)—authored by Justice Nares; discussed in our Oct. 24, 2016 post: $3,027,237.96 fee award reversed because claimed fees clause was only a third-party indemnification provision not allowing for fees between contractual fee combatants.
7. INTELLECTUAL PROPERTY—SunEarth, Inc. v. Sun Earth Solar Power Co., 839 F.3d 1179 (9th Cir. Oct. 24, 2016)—per curiam opinion; discussed in our Oct. 24, 2016 post: Attorney’s fees under Lanham Act’s “exceptional” language guided by same factors articulated in SCOTUS patent Octane Fitness/Highmark duology.
6. DEADLINES—Robinson v. U-Haul Co. of CA, 4 Cal.App.5th 304 (lst Dist., Div. 4 Oct. 18, 2016)—authored by Justice Streeter; discussed in our Oct. 19, 2016 post: Trial court’s “good cause” for extending Cal. Rules of Court, rule 3.1702(d) deadlines governing the filing of post-trial/post-appeal fee motions is not constrained by California Code of Civil Procedure section 473 “mistake/inadvertence/surprise/neglect” standards.
5. FEE CLAUSE INTERPRETATION/SECTION 1717—GoTek Energy, Inc. v. SoCal IP Law Group, LLP, 3 Cal.App.5th 1240 (2d Dist., Div. 6 Oct. 12, 2016)—authored by Justice Yegan; discussed in our Oct. 14, 2016 post: Law firm’s fees for defensing malpractice action were recoverable based on broad contractual fees clause and pursuant to Civil Code section 1717 given that a malpractice actions sounds in both contract and tort.
4. SECTION 998—Markow v. Rosner, 3 Cal.App.5th 1027 (2d Dist., Div. 1 Oct. 4, 2016)—authored by Justice Lui; discussed in our Oct. 14, 2016 post: Joint Code of Civil Procedure section 998 offer to medical malpractice plaintiff husband and loss-of-consortium plaintiff wife was valid given that wife’s damages were capped as a matter of law; section 998 offer provision requiring verification of insurance limits was a proper requirement for a 998 offer.
3. INTERPLEADER/LIEN FOR ATTORNEY FEES—Southern California Gas Co. v. Flannery, 5 Cal.App.5th 476 (2d Dist., Div. 6 Nov. 14, 2016)—authored by Justice Kriegler; discussed in our Nov. 14, 2016 post: Interpleader fee-shifting statute (CCP § 386.6(a)) encompasses post-discharge work to sustain the discharge result (including appellate fees), and interpleader action was separate action for purposes of adjudicating an attorney’s lien dispute.
2. FAMILY LAW—Marriage of Sagonowsky & Kekoa, Case Nos. A142866/A143234 (lst Dist., Div. 5 Dec. 21, 2016)—authored by Presiding Justice Jones; discussed in our Dec. 22, 2016 post: Family Code section 271 sanctions are not properly awardable unless clearly tethered to “attorney’s fees and costs” as per the statutory language.
1. SUBSTANTIATION OF REASONABLENESS OF FEES—L.A. County Bd. of Supervisors v. Superior Court, Case No. S226645 (Cal. Supreme Court Dec. 29, 2016)—4-3 decision, majority opinion by Justice Cuellar and dissent by Justice Werdegar; discussed in our Dec. 29, 2016 post: Attorney-client privilege does not categorically shield from California Public Records Act disclosure billing invoices sent by clients in concluded, non-active cases because legal consultation was not the purpose of the invoices; however, the privilege did protect billing invoice entries in active, pending cases. Case may have implications as far as the type of information, redacted or not, filed in support of fee submissions in both state and California federal courts.