CALIFORNIA ATTORNEY'S FEES

SLAPP: Award Of $9,800 In Attorney Fees, Pursuant to § 425.16(c)(1), To Prevailing Cross-Complainant Reversed On Appeal

Trial Court Made No Finding That SLAPP Motion Was Frivolous Or Filed Solely To Cause Unnecessary Delay

            Code of Civil Procedure § 425.16(c)(1) entitles a plaintiff, or cross-complainant as the case may be, prevailing on an anti-SLAPP motion to recover costs and reasonable attorney’s fees if the court finds the anti-SLAPP motion to be frivolous or brought solely to cause unnecessary delay. 

            The trial court in Nielsen v. MacPherson, Case No. G059758 (4^th Dist., Div. 3 October 8, 2021) (unpublished) made no such express or implied finding in awarding prevailing cross-complainants $9,800 in attorney fees pursuant to § 425.16(c)(1).  Rather, the trial court awarded the fees simply because cross-complainants had prevailed against the anti-SLAPP motion and were "therefore" entitled.  As a result, the 4/3 DCA, in a 3-0 opinion authored by Justice Fybel, reversed.

            “An award of sanctions under the anti-SLAPP statute has two elements. First, the trial court must make a finding the SLAPP motion was frivolous or brought solely to delay the proceedings. Second, the court must follow the procedural requirements for a sanction order set out in section 128.5 which requires, among other things, the order ‘shall recite in detail the conduct or circumstances justifying the order.’” (Morin v. Rosenthal, 122 Cal.App.4th 673, 682 (2004).)

Off Topic: 4/3 DCA Justice David A. Thompson Set To Retire From Appellate Bench On October 15, 2021

He Served As Both An Orange County Superior Court Judge And Appellate Justice.

            We recently noticed that Justice David A. Thompson of the 4/3 DCA has announced he will retire on October 15, 2021 from the appellate bench, planning to return to the private sector after 24 years on the bench.  Co-contributor Mike appeared before him while he sat on the Orange County Superior Court and the 4/3 DCA.  We wish him well in his future endeavors. 

Family Law: Lower Court Properly Denied Respondent Prevailing Party Attorney’s Fees Under Family Code Section 6344(a) Because Petitioner Obtained Relief In A Separate Criminal Case

Section 6334(a) Fees Are Discretionary Even If Respondent Was A Prevailing Party.

            In Bennett v. Rivers, Case No. B301211 (2d Dist., Div. 3 Oct. 6, 2021) (unpublished), a respondent did prevail (although the lower court technically erred in concluding otherwise) when petitioner dismissed a domestic violence restraining order petition after she obtained a criminal protective order against respondent in a separate criminal proceeding.  The lower court denied respondent’s request for prevailing party attorney’s fees under Family Code section 6344(a). 

            The appellate court affirmed, determining that it was harmless error to not declare the respondent a prevailing party because the fee request was properly denied anyway.  Section 6344(a) fee requests are a discretionary call for the trial judge, with he or she having the ability to deny on any reasonable ground deemed to be just.  In contrast, section 6344(b) is a mandatory fee-shifting statute requiring reasonable fees to be granted to a prevailing petitioner.  Here, there was no abuse of discretion because petitioner obtained her relief in a criminal forum such that denying fees was an appropriate exercise of discretion. 

Discovery, Sanctions: 1/3 DCA Affirms $7,550 Sanctions Award Against Defendant And Her Attorney

Unpublished Opinion Has Good Discussion Of Discovery Sanctions Burdens And Need To Reasonably Engage In Meet And Confer Discovery Sessions. 

            Price-Simms, LLC v. Gallegos (Fry), Case No. A160893 (1^st Dist. Div. 1 Oct. 6, 2021) (unpublished) is a situation where the appellate court affirmed a $7,550 discovery sanctions against defendant and her attorney (the attorney was representing her pro bono).  The factual backdrop was an embezzlement case where bank documents were sought through subpoenas, but with the defense not willing to meaningfully engage in meet and confer sessions by which plaintiffs offered to agree to a stipulated protective order regarding financial information.  The main plaintiff successfully resisted a defense protective order motion and sought $11,875 in sanctions.  The initial tentative was to issue $9,437.50 in sanctions, but the lower court lowered that to $7,550, awarded jointly and severally against defendant and her attorney (but with the reduction based on the attorney providing pro bono service and having his practice dip during the pandemic).  Here are some nice takeaways with respect to discovery sanctions:

• • Parties opposing a discovery sanctions request has the burden of proof in two situations:  where the opposition claims substantial justification for its actions and where an attorney resisting sanctions must demonstrate that he or she advised the client against the sanctionable conduct.  (Corns v. Miller, 181 Cal.App.3d 195, 200-201 (1986).)
  • Sanctions are mandatory where a party or attorney fail reasonably and in good faith to confer about a discovery dispute.   (Code Civ. Proc., § 2023.020.)
  • A party seeking financial discovery frequently can mitigate an opponent’s privacy concerns by offering to accept a protective order.  (Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal.4^th 360, 371 (2007).)
  • Nothing in the discovery statutes suggest that a party in a discovery dispute is entitled to “one free pass” before monetary sanctions can be imposed.  (Parker v. Wolters Kluwer United States, Inc., 149 Cal.App.4^th 285, 294 (2007).)

Allocation, Landlord/Tenant, Retainer Agreements: $910,752.50 Fee Award Under San Francisco Rent Ordinance Fee-Shifting Clause Affirmed On Appeal

Trial Judge Did Reduce Requested Lodestar By More Than $70,000—About 60% Of The Request, Although Refusing To Award A Positive 1.5 Multiplier.

            Landlords in Duncan v. Kihagi, Case No. A154678 (1^st Dist., Div. 1 Oct. 6, 2021) (unpublished), were not pleased when a trial judge awarded $910,752.50 in fees in favor of the winning tenants where there was a fee-shifting provision in a San Francisco Rent Ordinance (a common feature of many municipal rent ordinances), although reducing the lodestar request by over $70,000 and declining to award a 1.5 positive multiplier.  The appellate court affirmed.  The fee claimants did not have to apportion a lot of the work because it was interrelated to the success under the Rent Ordinance, even though some claims were abandoned in order to streamline the trial.  Streamlining was not deserving of punishment.  Isolated challenges to some billing entries did not change things, given the lodestar reduction by the lower court.  The hourly rates for a 20+ year attorney ($425) and for a more senior founding partner ($525) were not excessive for Bay Area practitioners in such a case.  The contingency retainer agreement did not have to be introduced into evidence because the contractual terms do not compel any particular fee award.  (Vella v. Hudgins, 151 Cal.App.3d 515, 520-521 (1984).)  Finally, the financial impact of the fee award on landlords was not a mandatory factor to consider.  (Garcia v. Santana, 174 Cal.App.4^th 464, 467 (2009).) 

Section 1717: Simply Because A Fee Retention Was A Company Obligation, Does Not Mean It Might Not Be Recoverable

California Caselaw Dictated The Result.

            Legendary Builders v. Grovewood Properties, Case Nos. B297299 et al. (2d Dist., Div. 4 Oct. 5, 2021) (unpublished), although a convoluted opinion, stresses a lesson we have posted on under Civil Code section 1717—“incurred” is a term of art and can encompass pro bono, reduced efforts, and non-business compensation efforts as long as a client potentially was on the hook for fees or engaged the attorney to do the work. 

Discovery, Sanctions: Third District Reverses Deposition Discovery Sanctions Against Attorney Because Deposition Suspension Requirements Did Not Entail A Reasonableness Requirement

But Unique Facts, So Do Not Think You Can Suspend Without Repercussions.

            Because we have to report on cases as we come upon them, we will say that Mason v. YD Window, Inc., Case No. C091415 (3d Dist. Oct. 5, 2021) (unpublished) is a little hard to decipher, but we will try.  In essence, a plaintiff’s attorney was hit with discovery sanctions by a discovery referee of $9,087.55 for suspending a deposition unreasonably.  There was some evidence that the defense was being crazy.  The attorney appealed, with the Third District reversing.  It found that there was no reasonableness requirement, at the time, for suspension for a deposition under Code of Civil Procedure section 2025.460(c).  The appellate court concluded there was no reasonableness requirement, the law was unsettled, and there was some indication in the record that the other side was itself unreasonable.  There you go!

Section 998: $178,000 In 998 Costs-Shifting Expenses Awarded Against Medical Mal Plaintiff

Waiver Of Costs/Malicious Prosecution Claims Was A Valid Offer Given Offer Was Two Years Into The Litigation.

            In Dell v. Parmar, Case No. E073851 (4^th Dist., Div. 2 Oct. 5, 2021) (unpublished), a plaintiff in a medical malpractice case lost a jury verdict after rejecting a defense section 998 motion to waive costs and forego malicious prosecution claims.  Because the offer was made more than 2 years into the litigation, the trial judge awarded about $178,000 in costs (mainly expert witness fees) to two doctors, separately, and against plaintiff.  The appellate court affirmed.  Given that the offer was made when both sides had a lot of information, the 998 offer was not unreasonable.

Appeal Sanctions, Discovery, Sanctions: Fifth District Denies Defendants’ Writ Petition Challenging The Trial Court’s Order To Produce Discovery Responses And Pay $13,680 In Sanctions.

Defendants’ Filing Of The Writ Petition Was Wholly Without Merit And, Under The Standards Set Forth In Flaherty, Was Frivolous And Filed Solely To Cause Delay – Warranting $6,965.00 In Sanctions Pursuant To California Rules of Court, Rule 8.492.

            After defendants failed to provide discovery responses for over three years, the trial court granted plaintiff’s motion to compel and sanctioned defendants and their attorneys a total of $13,680.00.  One month after their discovery responses were due, defendants filed a petition for writ of mandate challenging the discovery order and requesting production of discovery responses be stayed.

            The Fifth District was unimpressed in Pacifica Modesto v. Superior Court, Case No. F082869 (5^th Dist., October 4, 2021) (unpublished) and denied the petition for writ of mandate – finding it to be wholly without merit. Additionally, under the two standards set forth in In re Marriage of Flaherty, 31 Cal.3d 637 (1982) [No. 9 of our Leading Cases], the panel found the writ petition was frivolous and had been filed solely to cause delay.  As such, the panel imposed $6,965.00 in appellate sanctions – pursuant to California Rules of Court, Rule 8.492, which authorizes a Court of Appeal to impose sanctions on its own motion against a party filing a frivolous petition or filing a petition solely to cause delay – jointly and severally against defendants and their counsel, representing the amount of attorneys’ fees plaintiff had incurred in defending against the writ petition.

Employment: Employee Winning About $23,646 In Compensatory Damages In Wage Hour Dispute Properly Awarded $41,000 In Attorney’s Fees

Fee Award Was Reduced From The “Asked” $63,550 In Requested Fees.

            In Bastida v. Zairi, Case No. B301319 (2d Dist., Div. 5 Sept. 29, 2021) (unpublished), an employee (although that characterization was disputed) won about $23,646 in compensatory damages under wage/hour claims.  Plaintiff then sought $63,550 in attorney’s fees under California wage/hour fee-shifting statutes, with the attorney asking for $410 per hour—an hourly rate deemed reasonable.  However, the trial judge reduced the claimed hours such that plaintiff was awarded $41,000 in fees.  That was affirmed on appeal because the defense did not demonstrate how the award was an abuse of discretion as far as amount.

Appealability: Appellate Court Has Nice Discussion On Why Most Orders Granting Attorney’s Fees, Sanctions, And Costs Are Independently Appealable

Case Involved Application of the Disentitlement Doctrine.

            Findleton v. Coyote Valley Band of Pomo Indians, Case Nos. A156459 et al. (1^st Dist., Div. 2 Sept. 29, 2021) (published), although primarily involving application of the disentitlement doctrine to dismiss appeals by a tribe unless they complied with certain lower courts within 90 days, also contained a nice discussion on the independent appealability of orders granting attorney’s fees, sanctions, and costs.  The 1/2 DCA explains why many of these orders are final and separately appealable at pages 24-25 of the Slip Opinion, which we commend you to read in order to avoid deadline issues. 

Costs, Section 998, Special Fee Shifting Statutes: No Abuse Of Discretion In Attorney Fees And Costs Award Of $1,454,938.70 Against One Of Three Defendants, Without Apportionment, In Wrongful Death Case

Apportionment Of Attorney Fees Was Not Feasible As Plaintiffs’ Efforts Against The Defendants Were Inextricably Intertwined,  And The Case Could Not Have Been Presented Without Significant Expert Testimony To Determine Who Was Legally Responsible.

            In Hatcher v. Powell, Case No. B302730 (2d Dist., Div. 6 September 27, 2021) (unpublished), four defendants were sued in a consolidated wrongful death action following a single-car accident in Ventura County.  One of the defendants was the driver of the car, who lost control while attempting a left curve on a country road at almost twice the posted speed limit, in the dark of night, and with a blood alcohol level of .19 percent according to his blood test.  The other three defendants were a communications company, the construction company it had hired, and Ventura County.  Driver had hit construction equipment stored off the shoulder of the road when he lost control – killing two of his three passengers and injuring the third.   County settled out of the case, but the remaining defendants proceeded to trial where the jury returned a unanimous special verdict finding driver’s negligence was a substantial factor, but the negligence of communications and construction companies was not a substantial factor, in causing harm to the plaintiffs.  All told, according to our calculations, the jury awarded non-economic damages against driver of roughly $7.75 million and $455,000 in economic damages.  $1.9 million of that was awarded to the parents of one of the deceased passengers – parents who had made driver an unaccepted Code Civ. Proc. § 998 offer to settle for $500,000 each.

            Those parents then moved post-judgment for costs of $1,458,588.72, which included $544,493.80 in prejudgment interest, pursuant to Civ. Code § 3291 and Code Civ. Proc. § 998 (prejudgment interest running from the date of § 998 offer not accepted by defendant), and $760,000 in attorney’s fees pursuant to Code Civ. Proc. § 1021.4 (a fee-shifting statute allowing trial courts to award reasonable attorney fees to a prevailing plaintiff where the action for damages is based upon defendant’s commission of a felony offense for which that defendant has been convicted).  After minor deductions to the jury fees and for expert fees incurred prior to the § 998 offer, the trial court awarded $1,454,938.70 in fees and costs against driver.

            Although not denying liability, driver appealed – claiming the trial court abused its discretion in the amount of its award of attorney’s fees and costs – and argued communications and construction companies bore some responsibility.  However, the 2/6 DCA agreed with the trial court’s conclusions.  It was not feasible to apportion fees amongst the defendants because plaintiffs’ efforts against the defendants were inextricably intertwined, and the case could not have been presented without significant expert testimony to determine who was legally responsible.  The trial court had properly considered the time spent, reasonable hourly rates, complexity of the issues, success achieved, and skill of the attorneys in awarding fees and costs that were proportionate to the judgment obtained. (Serrano v. Priest, 20 Cal.3d 25, 48- 49 (1977); Harman v. City and County of San Francisco, 158 Cal.App.4th 407, 419 (2007).)

Discovery, Sanctions: No Abuse Of Discretion In Trial Court’s Imposition Of $12,250 In Sanctions Against Plaintiff For Abuse Of The Discovery Process.

Plaintiff Was Not Substantially Justified In Initially Providing Objection-Only Responses And Failed To Meet His Burden In Showing An Abuse Of Discretion In The Trial Court’s Finding That Defendants’ Sufficiently Engaged In Meet And Confer Efforts.

            In Kramer v. Dale, Case No. D077610 (4^th Dist., Div. 1 September 24, 2021) (unpublished), the 4/1 DCA found no abuse of discretion and affirmed a trial court’s order imposing $12,250 in sanctions against a plaintiff who abused the discovery process by initially providing objection-only responses to all discovery requests propounded by defendants . 

            The panel found plaintiff’s argument that he was substantially justified in initially providing objection-only responses because he feared that providing substantive responses and producing documents would constitute a waiver of his claim for disqualification of defendants’ counsel to be unsupported by authority.  Additionally, plaintiff’s objections to the discovery requests made no mention of this fear concerning waiver of his claim – which claim was not made until the day plaintiff served his objection-only responses.  Next, the panel concluded that plaintiff failed to meet his burden to show that the trial court abused its discretion in determining that defendants adequately engaged in meet and confer efforts before filing their motion to compel.  Plaintiff’s argument that the factors identified in Obergon v. Superior Court, 67 Cal.App.4^th 424 (1998) , were mandatory elements for the trial court to consider in making such a determination went nowhere – with the panel finding that plaintiff “gloss[ed] over the deferential abuse of discretion standard of review [it] must apply here.”  Rather the panel found that Obergon made clear that “[t]he level of effort at informal resolution which satisfies the ‘reasonable and good faith attempt’ standard depends upon the circumstances,” and that the trial court was to use its “broad powers and responsibilities to determine what measures and procedures are appropriate” in the circumstances presented. (Id. at 430.)

Appealability, Deadlines, Family Law: Ex-Husband’s Appeals Of Postjudgment Fee Orders Doomed By Untimeliness Of Appeal On One Order And Lack of Merit On The Other Two.

Pay Attention to Appellate Deadlines, If You Want To Preserve Challenges.

            In Marriage of Mhanna and Hage, Case Nos. H045078 et al. (6^th Dist. Sept. 24, 2021) (unpublished), ex-husband challenged three attorney fees orders: (1) a first order awarding fees to ex-wife under Family Code section 271 and 2030 to the tune of $80,000; (2) a second order denying his motion to set aside the fee order; and (3) an order to enforce the fee order through a QDRO procedure.  He did not win any of his challenges.  With respect to the first order, the 271 sanctions order was appealable, and he blew the longest 180-day deadline in which to appeal. He argued that the appeal was extended based on the denied set aside motion, but no authorities were provided to support that motion and, even if it was proper, he blew the 90-day deadline after that motion was denied.  On the second order, husband provided no adequate record for review, and he was given enough time to prosecute for due process purposes.  On the third order, the QDRO request was ultimately denied such that he was not aggrieved from what happened before.

Common Fund, Costs: Trope Limitation Prevents Self-Represented Attorney From Obtaining Fees Under Common Fund Theory, But Routine Costs Are Awardable

The 2/6 DCA, in a scholarly opinion written by Justice Yegan, faced the questions of whether a self-represented attorney, who was also the winning party, could seek recovery of attorney’s fees and costs under the nonstatutory common fund theory.  Different answers were the conclusions on the two issues.

            In Leiper v. Gallegos, Case No. B309986 (2d Dist., Div. 6 Sept. 23, 2021) (published), the appellate court agreed with the trial court that the self-represented attorney, under the Trope limitation (although it was an open issue), could not recover almost $96,000 in requested fees in a common fund case.  The reviewing court followed the holding of Bruno v. Bell, 91 Cal.App.3d 776, 783 (1990) to reach the result on fees with respect to pro se attorneys.    However, with respect to costs of around $3,000 (excluding attorney’s fees), the 2/6 DCA panel found no convincing reason why they could not be awarded given a pro se attorney could obtain costs under the routine costs CCP provisions. 

Private Attorney General: $2.2 Million Fee Award To Various Parties Reversed

Reason Was Pretty Simple—The Claiming “Successful” Party Was Not Upon Reversal.

            City of Gardena v. State Water Resources Control Board, Case No. G059466 (4^th Dist., Div. 3 Sept. 22, 2021) (unpublished) is a situation where certain litigants won CCP § 1021.5 fees after prevailing on a regional water board dispute.  The total fees came close to $2.2 million, assuming our math is correct in this opinion.  However, on appeal, the merits judgment was reversed for the parties which were awarded fees.  Based on the merits reversal, the fee awards fell also.  Former “successful” parties made a run at it on appeal, but the 4/3 DCA—in an opinion authored by Justice Fybel—had to overturn the fee award because they were not successful in the end. 

Costs: No Oral Hearing Required On Appellate Costs Motion

Nice Dissection Of Appellate Routine Costs, Which Were Allowed.

            No reason for us to discuss in detail the case of Pacheco v. Tuttle, Case No. B302508 (2d Dist., Div. 3 Sept. 22, 2021) (unpublished), unless trial and appellate practitioners want to dive in the weeds, given that an appellate costs award of $1,627 was at issue—we kid you not!

            The post-worthy takeaways are these:  (1) no hearing is required on a motion to tax costs (different with respect to a pretrial attachment or summary judgment motion); (2) defendant bears the burden of showing a costs item was unreasonable after plaintiff provided a verified costs memorandum which is prima facie evidence on the issue; and (3) nothing showed that a governmental entity was limited to a 15 cent per page charge for printing/copying appellate briefs. 

Reasonableness Of Fees: $178,190.50 Fee Award To Residential Tenant Under Contractual Lease Clause Affirmed On Appeal

Trial Court’s Award Was No Abuse Of Discretion.

            In Javaheripour v. Sigal, Case No. B304911 (2d Dist., Div. 4 Sept. 22, 2021) (unpublished), residential tenant won an inhabitability case against landlord, winning an unlawful detainer trial and then moving for lots of fees.  And tenant got a lot of them--$178,190.50 to be exact.  That award was affirmed on appeal under the deferential abuse of discretion standard because entitlement was really not at issue.  Because landlord tenaciously litigated, the fees were warranted.  Just goes to show how a small case can produce lots of fees!

Deadlines: Where Reverse Validation Action Had A 30-Day Appeal Deadline, That Deadline Governed Fee Motion Filing Despite More General Lengthier Deadlines

CCP § 1021.5’s Fee Claimant Motion Was Untimely.

            Sometimes, the context of a suit determines when a fee motion needs to be filed.  Central Delta Water Agency v. Dept. of Water Resources, Case Nos. C078249 et al. (3d Dist. Sept. 22, 2021) (published) reminds practitioners in a reverse validation case—even where more claims are at issue, but the gist is a reverse validation matter—that a potential fee claimant has 30 days, not other lengthier deadlines, to file a fee motion given the short reverse validation 30 day appeal period. 

Costs, Prevailing Party: Where Neither A Plaintiff Nor A Cross-Complainant Obtains Any Relief, Defendant Is The Prevailing Party For Costs, Absent A Costs Waiver

May Sound Quirky, But It Is The Law!

            In Bernstein v. Sebring, Case No. C088375 (3d Dist. Sept. 21, 2021) (unpublished), plaintiff/cross-defendant and defendant/cross-complainant partially settled some claims (where costs were waived) but proceeded to trial on some remaining claims.  The trial judge ultimately dismissed plaintiff’s complaint, and defendant voluntarily dismissed his remaining cross-claim.  The trial judge decided plaintiff, as a cross-defendant, was the prevailing party entitled to routine costs.  The Third District reversed.  Because neither party obtained any relief, the defendant was the prevailing party, with plaintiff as a cross-defendant not counting in the prevailing party analysis.  (McLarand, Vasequez & Partners, Inc. v. Downey Savings & Loan Assn., 231 Cal.App.3d 1450, 1454-1455 (1991).)  So, in a reversal of fortune, defendant was the prevailing party entitled to costs.  (Building Maintenance Service Co. v. AIL Systems, Inc., 55 Cal.App.4^th 1014, 1025 (1997).)