CALIFORNIA ATTORNEY'S FEES

Partition: 34.29% Property Owner Was Properly Saddled With Close To $86,000 In Attorney’s Fees And Costs At The End Of The Day

Losing Party, To The Appellate Court, Refused To List A Property For Sale And Refused To Reimburse Another Party For Paid Taxes—Leading To The Result With Respect To Fees And Costs.

               In this category, we have made many posts which involve partition proceedings, keeping in mind that CCP § 874.040, subdivisions (a) and (e), provide that the lower court has broad discretion to make apportionments which are equitable and just.  These provisions were front and center in affirming a lower court’s apportionment order in Sarad v. Lorenz, Case No. B322452 (2d Dist., Div. 6 Feb. 18, 2025) (unpublished).

               34.29% property owner failed to list a property for sale or pay real estate taxes along the way with respect to other owners, some of which did pay taxes and expenses.   When partition proceeding wound down, the 34.29% property owner had to eat, among other things, close to $86,000 in fees and costs based on his conduct in the proceeding.  He appealed, but to no avail.  Based on the abuse of discretion standard of review applicable to the statutory partition provisions, the appellant was properly saddled with expenses due to bad faith conduct increasing the cost of litigation—in this case, refusing to list the property for sale and to reimburse another party for property taxes paid on appellant’s behalf. 

Appealability, Sanctions: Defendant Unsuccessfully Appeals Trial Court’s Order Adopting Discovery Referee’s Recommendation On Apportionment Of Fees Claiming Apportionment Equated To Monetary Sanctions Exceeding $5,000

4/3 DCA Dismissed The Appeal As The Trial Court’s Interlocutory Order On The Discovery Referee Fees Was Not A Sanctions Order, Did Not Use The Word Sanctions, And Did Not Cite Authority To Impose Sanctions.

            The parties in Glickman v. Krolikowski, Case No. G064853 (4^th Dist., Div. 3 March 7, 2025) (published), stipulated to the appointment of a discovery referee.  The stipulation did not specify what portion of the referee’s fees would be paid by each party, but referenced Code Civ. Proc. § 645.1, with section 645.1(b) allowing for an apportionment of the fees among the parties.  When the trial court issued its reference order to implement the stipulation, it stated that the referee’s initial retainer would be paid 50 percent by each side, and that the referee’s report was to include the referee’s recommended allocation of payment.

Based on the parties’ conduct, the referee granted plaintiff’s apportionment motion and recommended that all of the recently incurred discovery fees of $22,750, plus the $1,750 in fees for the apportionment motion, be allocated to defendant.  Defendant unsuccessfully objected to this allocation, then filed an appeal claiming that one-half of the amount allocated to defendant was the equivalent of a monetary sanction in excess of $5,000 – making it subject to an interlocutory appeal.  Code Civ. Proc. section 904.1(a)(12).

The 4/3 DCA disagreed with defendant’s contention and dismissed the appeal.  The appellate panel found that the trial court’s order allocating discovery referee fees was not a sanctions order as the referee’s recommendation did not use the word sanctions, did not cite authority to impose sanctions, and relied on the discretion allowed for in the trial court’s reference order to apportion fees.  As a result, the trial court’s order was not a monetary sanction subject to appealability.  The trial court’s order was not a final judgment against defendant as reallocation of the payment of discovery referee costs could be made at the end of the lawsuit.  As such, defendant would have had to file a writ petition in order to immediately challenge this order.

Family Law: 2/6 DCA Affirms Trial Court’s Conclusion That Monthly Payments To Father From Indian Tribe’s General Welfare Program Is Income That Can Be Considered In Calculating Child Support And Needs-Based Attorney Fees Obligations

Indian Tribe’s General Welfare Program Payments To Father, Who Has An Annual Salary Exceeding $100,000 Per Year, Were Not Need Based.

            In Pateras v. Armenta, Case No. B336065 (2d Dist., Div. 6 February 27, 2025) (published), the 2/6 DCA affirmed the lower court’s conclusion that the monthly payments father receives from Indian Tribe’s general welfare program are not excludable from the calculation of father’s income for determining child support and needs-based attorney fees payable to mother. 

Although Family Code section 4058(c) provides an exclusion for income received from public assistance programs, this exclusion applies only to those public assistance programs which are based on need, and for which qualifying for benefits is restricted to only those who meet the poverty requirements for eligibility. 

Based on father’s annual income of $114,000, the trial court made a reasonable inference that being a descendant of the Tribe, rather than financial need, was the qualifying factor for father’s monthly payments from the general welfare program.

Fee Clause Interpretation, Reasonableness Of Fees: Fee Clause Stating Recovery For Third-Party Costs For Collection Encompassed Attorney’s Fees

Trial Court Properly Reduced $124,160 Fee Request To $64,750 To Prevailing Party Based On Partial Success, Under A Percentage Of Recovery And A Lodestar Analysis.

               Pulse Technology Consulting Group, Inc. v. Skowron & Bunning, LLP, Case No. C098036 (3d Dist. Feb. 11, 2025 partially published; fee discussion published) involved dueling actions about an information technology services agreement.  After a five-day bench trial, plaintiff won its contractual breach claim but was awarded lower-than-requested damages of $54,680 while defeating the defense’s counterclaims.  Plaintiff then moved for attorney’s fees under this contractual clause: “Client will be responsible for all third party costs incurred by PULSE to collect overdue invoices.”  Plaintiff/cross-defendant ultimately requested fees of $124,160, but the lower court only awarded $64,750, triggering an appeal by the defense.

               The Third District affirmed, publishing its discussion on the fee issue.  The defense argued that the contractual language did not encompass fees, but the appellate court disagreed even though giving de novo review to the fee entitlement issue.  It observed that third-party expenses, in a collection context, would encompass attorney’s fees, relying on the reasoning in the federal court decisions in Mastronardi International Limited v. SunSelect Produce (California), Inc. (E.D. Cal. Aug. 23, 2019, No. 1:18-cv-00737-AWI-JLT) 2019 U.S. Dist. LEXIS 143934; Oklahoma Fixture Co. v. ASK Computer Systems, Inc. (10th Cir. 1995) 45 F.3d 380 to support its conclusion.

               That shifted the analysis into whether the fee award was reasonable.  It was.  After reducing some claimed hours for partial success under the lodestar approach to arrive at a $64,750 figure, the interesting part of the decision is that the appellate court also affirmed the lower court’s determination of reasonableness through a “cross-check” under a percentage-of-recovery analysis:  plaintiff obtained 32% success on its contractual case based on damages ultimately awarded and 100% success on the counterclaims, such that a blended 66% success rate justified the ultimate award from plaintiff’s “ask”—an $82,000 figure even though the trial court used it as a check against the $64,750 lodestar figure, adopting the lower lodestar figure as the award.

Appeal Sanctions, Arbitration, Sanctions: $37,000 In CCP § 128.7 Sanctions Affirmed On Appeal For Attorney’s Refusal To Withdraw A Frivolous Opposition To An Arbitration Motion To Confirm An Award

Also, Appeal Sanctions Were Warranted For A Frivolous Appeal, But Matter Remanded To Trial Judge To Determine Appropriate Amount Given Conclusory Support For The Fee Request.

               In Plantation at Hayward I, LLC v. Plantation at Hayward I, LLC (Catanzarite), Case No. G062909 (4^th Dist., Div. 3 Feb. 10, 2025) (published), plaintiff’s attorney losing in an arbitration filed a frivolous opposition to a motion to confirm the arbitration award, garnering a $37,000 CCP § 128.5 sanctions award against him which was affirmed on appeal.

               Plaintiff’s attorney’s appeal on behalf of his client was found to be frivolous also, with respondent requesting $43,855 in appellate fees as a sanction.  The appellate court found the fee support was too conclusory, so it remanded with a choice: (1) losing attorney could stipulate to the fee request; or (2) losing attorney could request an evidentiary hearing so the trial judge could determine the appropriate sanctions award.  Justice Goethals authored the 3-0 opinion.

Special Fee Shifting Statutes: A Prevailing Defendant Is Entitled To Attorney’s Fees For Defeating A Penal Code Section 502 Claim

With An Important “If”: If Plaintiff’s Case Was Objectively Without Foundation When Brought Or Plaintiff Continued To Litigate After It Became So.

               Hay v. Marinkovich, Case No. D082561 (4^th Dist., Div. 1 Feb. 6, 2025) (published) held that a prevailing defendant in a Penal Code section 502 case (section 502 prohibits an unauthorized use of any computer system for an improper purpose) is entitled to attorney’s fees under section 502(c) but only where plaintiff’s claim was objectively without foundation when brought or plaintiff continued to litigate the case after it became so.  Because plaintiff’s case was not frivolous, the lower court exercised its discretion correctly by denying the defendant’s fee request. 

Deadlines: Prevailing Litigant In An Appeal Has 40 Days From Issuance Of Remittitur To File A Fee Motion Under CRC 8.278(c)(1)

Deadline Runs From Issuance, Not Extended For The Service Of The Remittitur.

               In Wash v. Banda-Wash, Case No. F085028 (5^th Dist. Feb. 3, 2025) (partially published), the Fifth District decided that a litigant prevailing on appeal has 40 days after issuance of the remittitur to file a fee motion under CRC 8.278(c)(1), a firm deadline not extended for the manner of service of the remittitur.  However, in the unpublished portions of the opinion, the appellate court remanded to have the lower court consider whether it exercised its discretion to allow the litigant a 2-day extension given that it did award appellate fees and costs to the litigant.

Judgment Enforcement, Section 998: Elmi Opinion Now Published

Opinion Held That Postjudgment Enforcement Statute Trumped CCP § 998 With Respect To Fee Entitlement.

               On January 10, 2025, we posted on Elmi v. Related Management Company, L.P., Case No. G062788 (4^th Dist., Div. 3 Jan. 8, 2025), when it was unpublished.  We can now update everyone by indicating that it was certified for publication on February 6, 2025, with the opinion holding that a litigant’s efforts to enforce a SLAPP judgment is governed by the CCP § 685.040 postjudgment enforcement fee statute, not CCP § 998.

Intellectual Property: Reversal Of Claim In A Cross-Appeal Meant That Copyright Attorney’s Fees Denial Had To Be Revisited

Same Result As Is Usually The Case In State Court Cases.

               Much like what generally happens in state court cases, Aquarian Foundation, Inc. v. Lowndes, Case No. 22-35704 et al. (9^th Cir. Feb. 3, 2025) (published) illustrates that federal circuit courts will remand an attorney’s fees denial order for a revisit after reversing a claim in an appeal (in this case, a cross-appeal).

BLOG OBSERVATION:  We liked the beginning sentence of this opinion: “Copyright, estate law, and religious writing make for strange bedfellows, but this appeal has them all.”

Allocation: Where Trial Judge Asks For Allocation Based On Partial Success Of Different Claims, You Need To Do A Rigorous Apportionment

Requests Totaling $427,102.50 For Partially Prevailing Defendants/Cross-Complainants Reduced To Awards Totaling $141,904.94 Based On Failure to Specifically Apportion.

               Apportionment of attorney’s fees among claims generally is a discretionary call for the trial judge, even though allocation should be undertaken unless the attorney work was inextricably intertwined on the claims (which is an after-the-fact determination by the judge hearing the fee motion).  However, if a trial judge asks you to allocate, you better apportion or suffer the consequences, as demonstrated by the result in West Sacramento Hospitality LLC v. S.A.V. Texas, LLC, Case No. C099575 (3d Dist. Jan. 31, 2025) (unpublished).

               There, plaintiff voluntarily dismissed its complaint before trial (which triggered the Santisas rule where fee recovery could not be had on the contractual claim but was allowable on two tort claims based on the breadth of a contractual fee clause), and defendants prevailed on two of three claims of their cross-complaint.  Based on these partial successes, the trial judge wanted detailed allocation by defendants/cross-complainants on the compensable work (the tort claims in the complaint and the two claims in the cross-complaint on which they prevailed).  Fee claimants conceded it was difficult to apportion, but they used a mechanical 75/25 allocation to the complaint/cross-complaint for entries hard to apportion, asking for a total of $427,102.50 in fees.  The trial judge applied a more rigorous apportionment:  100% of entries for which work could be attributable for segregated work on the two pleadings (50/50 between the complaint and cross-complaint) and then reduced the total amount by a third based the percentage of success on the two sets of pleadings, all told awarding a total of $141,904.94 in fees.

               Fee claimants appealed, but the Third District affirmed the fee awards.  Where a lower court asks for more information and detailed apportionment, these requests need to be honored and the abuse of discretion standard applies, especially given the deference to the lower court’s view that more could have been done to properly allocate.  With respect to the argument that the work was intertwined, fee claimants did not show it was impossible to allocate.  The one-third reduction was proper based on Santisas when it came to the complaint and was also correct based on partial success being a factor which can be used in adjudging fee motions when it came to the cross-complaint. 

               BLOG OBSERVATION—This case teaches that care needs to be taken in billings where dueling pleadings are at issue and/or multiple represented parties are involved.  No one knows how a case can come out; careful billing substantiation makes life easier, and avoids the results here, if the trial judge asks for apportionment.

SLAPP: Where Appellate Court Only Did A Modest Reversal Of SLAPP Grant, Lower Court’s Award Of Attorney’s Fees To Defendant Was Proper

Given The Enormous Successful By The Defense On The SLAPP Motion, No Need To Reverse The Fees Award On Appeal.

               Many practitioners are familiar with the general principle that the reversal of a merits judgment many times will result in reversal of a fees award, because the degree of success needs to be figured into the new calculus on who prevailed or succeeded.  But not always so, as the circumstances in Wang v. Plaza Bonita, LLC, Case No. B321484 (2d Dist., Div. 2 Jan. 30, 2025) (unpublished) demonstrated.

               There, defendant was granted a complete SLAPP grant, winning substantially all the issues and narrowing the issues to a large degree.  The lower court awarded the defense mandatory SLAPP fees of $57,681.23.  On the merits appeal, the appellate court granted some modest reversals.  Based on the reversal, plaintiff argued that the fee award had to be reversed and remanded.  The 2/1 DCA disagreed.  Based on the substantial win by the defense, the fee award was warranted and compensated defendant for its SLAPP efforts in obtaining overwhelming success. 

Section 998: Seven Months Into Litigation, Med Mal Plaintiff Rejecting Section 998 Offer Properly Saddled With Costs-Shifting, Including Expert Witness Fees

Acceptance Line With Request For Dismissal Was No Defect, With The Offer Made In Good Faith Based On Informative Litigation Activities.

               In Standage v. Bruno, Case No. A165207 (1^st Dist., Div. 5 Jan. 29, 2025) (unpublished), med mal plaintiff lost a case after the jury returned a defense verdict after less than two hours of deliberation.  Plaintiff earlier had rejected a CCP § 998 offer to dismiss the case in return for a waiver of costs/malicious prosecution claims, an offer made about seven months into the litigation, with the defense also making subsequent informal settlement offers after future activities in the case—none of which were accepted.  The lower court awarded the defense $33,890.19 in costs under section 998, inclusive of expert witness costs of $16,125.

               Plaintiff’s appeal of this ruling was unsuccessful.  First up was plaintiff’s argument that the defense requesting a dismissal along with plaintiff signing acceptance of the offer was procedurally noncompliant.  The appellate court disagreed, determining that the request for a dismissal with prejudice rather than a judgment was fine (Goodstein v. Bank of San Pedro, 27 Cal.App.4^th 899, 906 (1994) and that coupling a dismissal request with an acceptance line signature was no invalidating feature of the 998 offer (Slip Op., p. 8). 

               Next up was the argument that the 998 was not made in good faith.  The problem here was that plaintiff had sent a 90 day pre-trial notice of intent in tandem with the fact the parties did engage in investigation and extensive discovery given the offer was not made right after the case was filed—rather it was seven to eight months into the case filing itself.  (Covert v. FCA USA, LLC, 73 Cal.App.5^th 821, 842 (2022).)  The 998 costs waiver did have value to plaintiff given the defense assessment it was a losing case, which turned out to be true and created a prima facie presumption that the offer was made in good faith.  (Jones v. Dumrichob, 63 Cal.App.4^th 1258, 1262, 1264 (1998).)  We bloggers also believe the reviewing court was impressed with the defense’s subsequent informal offers to settle after various junctures of the litigation, which evidenced continuing good faith by the defense.

Arbitration: 1/1 DCA Finds FAA Preemption Does Not Apply To CCP 30-Day Deadlines For Employers To Pay Arbitration Fees, Agreeing Its Analysis In Keeton—Accepted For California Supreme Court Review Pending A Determination In Hohenshelt—Was Correct

Matter Still In Flux, Although Opinion Found Most Intermediatory California Appellate Court Agree With No Preemption Conclusion, But With Federal Judges Split On The Issue.

               The 1/1 DCA in Cohn-Perez v. Security Industry Specialists, Inc., Case No. A168297 (1^st Dist., Div. 1 Jan. 29, 2025) (partially published) sided with its earlier interpretation in Keeton that the FAA did not preempt CCP § 1281.98’s 30-day deadlines for an employer to pay arbitration expense invoices in an arbitration involving an employee, meaning the matter returned to state court for adjudication.  Keeton was accepted for California Supreme Court review pending resolution of an earlier case which was granted review, Hohenshelt, Case No. S284498.  We checked the website for Hohenshelt, which indicates the case was fully briefed as of January 9, 2025.  The Cohn-Perez appellate court also observed that most intermediate California appellate decisions did not accept the preemption argument, but did recognize a tangible split among federal courts. 

Consumer Statutes: Prevailing Defendant In Lemon Law Case Not Entitled To Attorney’s Fees Under Civil Code Section 1717

Reason Was That Applicable Consumer Statutes—Moss-Magnuson Act, Song-Beverly Act, And Consumers Legal Remedies Act—Trumped Section 1717 Because They Only Allow Fee Recovery To A Prevailing Consumer Or Plaintiff.

               Martinez v. Sai Long Beach B, Inc., Case Nos. B320441 et al. (2d Dist., Div. 5 Jan. 28, 2025) (partially published; fee discussion published) is part of a growing trend by appellate courts to find that specific consumer or Labor Code statutes “trump” more general fee-shifting statutes such as Civil Code section 1717.

               Plaintiff in this one purchased a car from defendant under a retail installment sales contract with an attorney’s fees clause.  Defendant then obtained a complete summary judgment based on lemon law claims, specifically brought under the Moss-Magnuson Act, Song-Beverly Act, Consumers Legal Remedies Act, and derivative unfair competition claims.  The lower court awarded defendant routine costs (which were affirmed on appeal when the summary judgment was upheld) and attorney’s fees of $109,703.50 under section 1717 based on the contractual fees clause.

               The 2/5 DCA reversed the fees award in the published part of the opinion, although acknowledging that defendant did prevail “on the contract” so as to be entitled to fees under section 1717.  It determined that the applicable consumer statutes only allowed fee recovery to either a plaintiff consumer (Moss-Magnuson Act), a prevailing buyer (Song-Beverly Act), or a prevailing defendant only where plaintiff’s case was frivolous, with no such frivolity found in the case (CLRA).  These were specific statutes which prevailed over the more general section 1717 fee-shifting provision.  

Deadlines: Where Notice Of Superior Court’s Notice Of Decision In A De Novo Appeal Of An Administrative Citation Was File-Stamped And Mailed To The Parties In A Limited Superior Court Case, City Had 30 Days To File A Fees And Costs Motion

City Blew The 30-Day Deadline, Thinking The Longer 90-Day Period Applied.

               If you are involved in a de novo appeal of an administrative order in a superior court limited case, you need to be extra diligent in observing deadlines to file motions for fees and costs because the deadlines are smaller.  Particular attention needs to be paid to the clerk’s processing of a Notice of Decision, because no formal judgment is necessary to trigger the fees/costs motion deadline.  City of Duarte learned that the hard way in Mendoza v. City of Duarte, Case No. 24APLC00050 (L.A. County Appellate Div. of the Superior Court, filed Dec. 30, 2024 but posted as published on Jan. 27, 2025).

               In Mendoza, City’s citation against plaintiff’s property was upheld in an administrative hearing.  Plaintiff sought de novo review from the superior court in a limited case action, with the superior court again upholding the citation through a “Notice of Decision” mailed to the parties by the clerk with a file-stamped version of the decision.  City filed a motion for fees and costs, but the superior court denied it because the motion was filed outside of 30 days from when the clerk served parties with the decision.  City appealed to the superior court’s appellate division, which affirmed the lower court’s ruling on the untimeliness of the motion, rejecting City’s argument that the longer 90-day time period applied based only on its receipt of a copy of the “Notice of Decision.”

               The untimeliness conclusion was fueled by the unique provisions relating to administrative appeals, where the issuance of a Notice of Decision rather than an order or judgment is the triggering event for the running of a fees/costs motion deadline.  The Notice of Decision here was a final merits adjudication of the dispute, with the clerk sending notice of it along with a file-stamped copy of the decision itself.  That was all the governing statutes and CRC provisions required, so the lower court’s untimeliness ruling was affirmed on appeal to the appellate division.

Arbitration: $75,000 In Fees/$4,600 In Costs Award To Plaintiff On An Interactive-Process Claim Was Affirmed On Appeal Even Though Plaintiff Only Won $30,000 In Compensatory Damages

Dueling Appellate Sanctions Requests Were Denied Also.

               In Rivas v. Dynamic Nursing Services, Inc., Case No. B337901 (2d Dist., Div. 1 Jan. 27, 2025) (unpublished), parties in an employment dispute involving common law and FEHA claims proceeded to an arbitration, with plaintiff eventually winning $30,000 on an interactive-process claim only.  Later, the arbitrator awarded plaintiff attorney’s fees of $75,000 (out of a requested $384,471) and costs of $4,600 (out of a requested $8,804).  Those results were affirmed on appeal based on the deference provided to arbitral awards.  Also, dueling appellate sanctions requests were denied. 

Private Attorney General: Lower Court’s Award Of CCP § 1021.5 Fees To Plaintiff--Up To The Time That Defendant Agreed To Provide Primary Relief--Was Proper

Plaintiff Sought Over $1.4 Million In Fees, With The Fee Award Being $75,961.50, And With A Positive Enhancement Rejected.

               Limited success, such as where a defendant voluntarily changes their behavior, may mean that post-change fees are denied under the private attorney general fee-shifting statute, CCP § 1021.5.  That is what happened in Save Berkeley’s Neighborhoods v. Regents of University of California, Case No. A169722 (1^st Dist., Div. 5 Jan. 24, 2025) (unpublished).

               A few months after plaintiff filed a CEQA action, the Regents agreed to provide the primary relief sought through review of the environmental impacts of recent campus enrollment procedures.  Plaintiff moved for over $1.4 million in attorney’s fees plus a positive fee enhancement.  The lower court awarded $75,961.50 in fees, determining that fees were only appropriate for work occurring before the Regents acceded to the primarily relief requested.  No multiplier was appropriate because the issues prior to the notice were not complex, and the risk of non-payment was mitigated because plaintiff’s counsel billed at a reduced rate such that the matter was just a partial contingency case.

               The 1/5 DCA affirmed.  For one thing, the Legislature mooted much of the after-change work in this case and a companion case which was declared moot by enacting legislation that found enrollment or enrollment changes do not constitute CEQA projects. 

Because a lower court may reduce fees where the relief is limited in comparison to the scope of the litigation as a whole (limited success), the “line in the sand” drawn by the lower court was not arbitrary given the subsequent legislative enactments and in light of the Regents voluntarily acceding to relief.  With respect to denial of the enhancement, the results were mixed because the Legislature effectively mooted the case, the partial reduced billing/partial contingency reduced the risk of non-payment, and the duty being enforced was not novel.  (See Keep Our Mountain Quiet v. County of Santa Clara, 236 Cal.App.4^th 714, 741 (2015) [affirming denial of a multiplier where counsel took the case on a partial contingency basis].)

Arbitration: Because Arbitration Was Governed By The FAA, Lower Court’s Order Denying Arbitration To Defendant Employer For Failure To Pay Arbitration Expenses Within 30 Days Was Reversed On Appeal

FAA Governance Of The Arbitration Process Was Dispositive.

               In Boub v. Prime Healthcare, Case No. B334972 (2d Dist., Div. 4 Jan. 25, 2025) (unpublished), a lower court’s order denying a defendant employer’s motion to compel arbitration for failure to pay arbitration expenses within 30 days under CCP § 1281.98 was reversed because the FAA governed the process, not the CAA section 1281.98 protocol.

SLAPP: Frivolous SLAPP Motion Exposed Plaintiff To $81,193.45 Attorney’s Fees

The Fee Award Was In An Unspecified, Reduced Amount.

               Helix Media LLC v. Clark, Case No. B332861 (2d Dist., Div. 4 Jan. 23, 2025) (unpublished) reminds plaintiffs to be prudent in bringing SLAPP motions; plaintiff in the case had a SLAPP motion declared frivolous, resulting in a reduced attorney’s fees award of $81,193.45.

Sanctions: Sanctions Award Against Attorney Reversed Because Other Side Failed To Satisfy 21-Day Safe Harbor Notice Requirements

Because It Involved An Amended Complaint, That Pleading Could Have Been Withdrawn.

               Attorney in Windsor v. Does 1-10, Case No. A167006 (1^st Dist., Div. 2 Jan. 21, 2025) (unpublished) was hit with a CCP § 128.5 sanctions order because he failed to dismiss an amended complaint after a summary judgment was granted.  The sanctions order was reversed on appeal, because the other side filed with the court and served the sanctions order on the same day rather than giving attorney the benefit of the 21-day safe harbor rule to withdraw an offending pleading.  (Broadcast Music, Inc. v. Structured Asset Sales, LLC, 75 Cal.App.5^th 596, 605-606 (2022).)  The issue was whether the underlying conduct indeed could be withdrawn; however, because it involved an amended pleading, that was the case.