CALIFORNIA ATTORNEY'S FEES

Homeowner Associations, Lodestar, Reasonableness Of Fees: $125,000 Attorney’s Fees Award To Plaintiff Adjacent Property Owner For HOA Encroaching On His Easement Was Affirmed On Appeal

Both Sides Appealed The Fee Award, But It Was Affirmed In Entirety.

               After an adjacent property owner and HOA settled an easement dispute in which $350,000 was paid to plaintiff, an attorney’s fees motion based on the settlement agreement contractual fees clause was partially granted in plaintiff’s favor.  Plaintiff moved for $164,258.50 in fees, but the lower court only granted $125,000 after observing that the claimed hourly rates were high for an easement dispute venue in the Northwest District of LASC (Van Nuys) and that the work was excessive.  Both sides appealed in Haghnazarzadeh v. Sun Tree Townhomes Owners’ Assn., Inc., Case No. B331492 (2d Dist., Div. 2 July 8, 2025) (unpublished), but the award was affirmed—no one got any more fees or a further fee reduction.

               There was nothing in the record suggesting that the lower court did not follow lodestar principles, given it did comment on the hourly rates and on the excessiveness of the work.  No detailed statement of decision is required on fee decisions in California state courts, for fear that fee adequacy would “assume massive proportions, perhaps dwarfing the case in chief” (citing the leading case of PLCM, 22 Cal.4^th at 1098).  Because the lower court did not specify the hourly rates that it was using, the result could have been just a reduction based on the perception that the work was excessive for a case of this nature.  The appellate court expressly declined to “define the boundaries of the community for the purpose of determining a reasonable rate,” because that would be tantamount to an advisory opinion and was not necessary to sustain what the lower court did as no abuse of discretion.

Costs, Employment, POOF!, Prevailing Party: Plaintiff Proving Whistleblower Case, But Obtaining No Relief As Employer Proved A “Same-Decision Defense,” Was Erroneously Awarded Attorney’s Fees Under One-Way Whistleblower Statute, Labor Code 1102.5

$400,000 Fee Award Reversed As A Matter Of Law, With County Entitled To Routine Costs As The Prevailing Party Below.

               In a “mixed-motive” whistleblower case, plaintiff proved the elements of his whistleblower claim, but he obtained no relief because defendant employer proved the “same-decision defense.”  The lower court in Lampkin v. County of Los Angeles, Case No. B336806 (2d Dist., Div. 4 July 8, 2025) (published) awarded plaintiff routine costs of $52,043.65 and $400,000 in attorney’s fees under Labor Code section 1102.5 (a one-way fee shifting provision working in favor of a “successful” plaintiff).  Those awards went POOF! on appeal, with County given the chance to seek routine costs as the prevailing party.

               The appellate court found that plaintiff did not bring a “successful action” for purposes of a statutory fee award.  It refused to extend reasoning in Harris v. City of Santa Monica, 56 Cal.4^th 203 (2013), a FEHA case allowing for fees involving a same-decision defense situation, on numerous bases—most of all that FEHA and the whistleblower statutes have different nuances.  County then argued it was entitled to routine costs as the prevailing party, with the 2/4 DCA agreeing, because County fell within costs entitlement under two categories of CCP § 1032—remanding for a determination as to whether County followed the correct procedures to claim costs.

SLAPP: $24,880 Fee Award Based On Frivolous SLAPP Motion By Plaintiff/Cross-Defendant Is Reversed And Remanded

The Reason Was That The Lower Court’s Order Failed To Make Written Findings About The Sanctionable Conduct.

               SLAPP litigants and their counsel can be liable for attorney’s fees if they lose a SLAPP motion which is deemed frivolous, based on CCP § 128.5.  In Szeto v. Chen, Case No. G054497 (4^th Dist., Div. 3 July 2, 2025) (unpublished), plaintiff/cross-defendant lost a SLAPP motion directed against a cross-complaint, with the lower court deeming the motion frivolous and awarding $24,880 (out of a requested $54,975) against cross-defendant and his counsel.  The 4/3 DCA reversed and remanded because the lower court’s order did not set forth in writing the sanctionable conduct underlying the award, as required under section 128.5.  So, that had to be specified on remand or the sanctions request had to be denied.  However, the appellate panel—in a 3-0 opinion penned by Justice Scott—did reject these arguments:  (1) an appeal of the SLAPP motion itself did not stay matters such that the lower court could entertain the fee motion; (2) the sanctions were properly assessed against the losing litigant and its counsel; and (3) the lower court did not award an unreasonable amount of fees because it did over a 50% reduction by finding the requested fees were excessive (especially because there was no delegation of work to less expensive associates). 

Homeowner Associations, SLAPP: $6,300 SLAPP Fee Award In HOA’s Favor Affirmed On Appeal

Main Reason Is That Homeowner Did Not Oppose the Fee Request, So Waiver Occurred.

               In Trabuco Highlands Community Assn. v. Loeffler, Case No. G063862 (4^th Dist., Div. 3 July 1, 2025) (unpublished), HOA SLAPPed a state collection statutory action brought by a homeowner, with the lower court awarding mandatory SLAPP fees of $6,300 to HOA.  Homeowner appealed, not getting much traction.  Homeowner did not oppose the fee request below so any appellate challenges were waived based on not opposing at the trial court level.  (So. Cal. Gas Co. v. Flannery, 5 Cal.App.5^th 476, 483, fn. 7 (2016).)  Justice Delaney penned the 3-0 opinion.

Employment, Multiplier, Reasonableness Of Fees: Plaintiff’s Win On Some FEHA Claims Justified A $1,385,546 Fees/Costs Award

Compensatory Award Was $709,555, With Counsel’s Skill And Multiplier Request Supporting The Fee Award Affirmed On Appeal.

               The trial judge in Ramirez v. Bala, Case No. H049689 (6^th Dist. June 30, 2025) (unpublished) awarded a FEHA plaintiff $1,385,546 in attorney’s fees and costs (about the full request, inclusive of a 1.5 multiplier) after plaintiff won a compensatory award of $709,555.  The defense appeal of the fees/costs award was not successful.  Although losing a retaliation claim, the winning claims were intertwined such that no reduction was in order.  The $450 hourly rates claimed by plaintiff’s counsel in Monterrey County were reasonable given the lower court had seen requests in the $800-plus area.  Finally, the litigation was hard fought such that the skill of plaintiff’s counsel justified the multiplier.

Homeowner Associations, Prevailing Party: Homeowner’s Voluntary Dismissal Of HOA Without Prejudice Did Entitle HOA To Attorney’s Fees Under The Davis-Stirling Act Fee Shifting Provision

$148,142.26 Was The Fee/Costs Award Against Homeowner, Affirmed On Appeal.

               We frequently have posted on homeowner-HOA disputes.  They are contentious.  However, whoever prevails—and that can be a discretionary call—or if no one prevails can be a game changer in these disputes, much to the chagrin of one side or both sides.

               Jennings v. Bayside Court Owners Association Inc., Case No. A171339 (1^st Dist., Div. 5 June 27, 2025) (unpublished) is a good illustration of our opening observations, although the homeowner was on the losing end of the stick. 

               Homeowner sued HOA and many others for fraudulent deeds allegedly made in connection with common areas, with homeowner eventually dismissing HOA without prejudice after 16 months of litigation and after homeowner says he obtained relief against other defendants (but not the HOA).  HOA moved for costs and attorney’s fees under the Davis-Stirling Act fee shifting provision, with the lower court granting its full request—a total award of $148,142.26 based on a determination that the HOA prevailed.

               The 1/5 DCA affirmed.  Because the prevailing party determination under the Davis-Stirling Act is a pragmatic one, the lower court can determine that a party dismissed without prejudice did still obtain its litigation objectives.  In this case, HOA did obtain its primary objective to be dismissed from the case after 16 months of litigation, with homeowner not demonstrating that it obtained any significant relief against HOA (obtaining relief against other defendants was immaterial).  No abuse of discretion in this one.

Ethics: Defense Counsel’s Failure To Notify Plaintiff Or Lower Court About Ineligibility To Practice Of Plaintiff’s Attorney Led To A Reversal And Remand Of An Adverse Fee Award Against Plaintiff

Plaintiff Was Not In Pro Per, But Basically Unrepresented By Ineligible Counsel And No One Gave Her Notice Of The Ineligibility—Civility Again Stressed In The Fees Area.

               Civility has been stressed in many recent appellate opinions, with fee reductions affirmed and with multipliers denied based on incivility by a litigant’s claiming attorney asking for fees.  Prato v. Giola, Case No. G064139 (4^th Dist., Div. 3 June 27, 2025) (published) may be even the strongest testament to how civility will impact attorney’s fees awards. 

               There, plaintiff’s case was dismissed because her ineligible practicing attorney did not appear for trial, a fact known by defense counsel and with no one providing plaintiff notice about her counsel’s ineligibility.  Defendants moved for attorney’s fees under a contractual fees clause, with the lower court granting over $70,000 in fees against plaintiff and her company even though she did hire an attorney to oppose by bringing the lack of ineligibility notice to plaintiff as an argument against the fee motion.  Plaintiff prudently appealed.

               The 4/3 DCA, in an opinion authored by Acting Presiding Justice Moore, reversed and remanded.  The panel chided defense counsel for failing to notify plaintiff about the ineligibility either through direct notice or a request to send such a notice before the lower court.  It was inequitable for plaintiff to have to bear an adverse fee request, with the appellate court strongly suggesting it was wrong to even impose fees under the circumstances.  Nevertheless, the panel reversed and remanded, but this opinion does bring civility themes clearly at the forefront for California practitioners to ponder as they are litigating cases, no matter what side they represent.

               BLOG OBSERVATION—Co-contributor Mike recently attended at ADR Services Webinar by Retired Judges Kathleen Kelly and Suzanne Ramos Bolanos on high-stakes mediations.  They did mention that incivility can result in reduced fee awards, citing Snoeck v. ExakTime Innovations, Inc., 96 Cal.App.5^th 908, 927 (2023) and Karton v. Ari Design & Construction, Inc., 62 Cal.App.5^th 734, 747 (2021) among other cases. 

Consumer Statutes, Lodestar, Reasonableness Of Fees: Lower Court Awarding Fresno Rates To Attorney Litigating In Orange County And Slashing Fees/Cost Request By 82.9% Had Its Award Reversed And Remanded On Appeal

Venue Rates Had To Be Used And The Substantial “Haircut” Needed More Explanation.

               What happened in Tidrick v. FCA US LLC, Case No. G063186 (4^th Dist., Div. 3 June 26, 2025) (unpublished) is that lemon law plaintiffs requesting $82,719.33 in fees and costs ($74,275 in fees and $8,444.33 in costs) were only awarded a grand total of $15,000—an 82.9% reduction.  That award did not stand up on appeal for two main reasons, resulting in a reverse and remand in a 3-0 opinion authored by Justice Delaney.

               The first reason for the reversal was that the lower court applied Fresno County rates for his Fresno attorney, even though the case was properly venued in Orange County.  The higher venue rates needed to be applied.

               The second reason was that it was unclear whether the proper lodestar methodology was followed by the lower court given (1) there was no explanation of how the costs were factored into the grand total, and (2) there was no clear explanation for the substantial “haircut.”  A remand was necessary to apply Orange County consumer attorney rates, to properly utilize the lodestar methodology, and to clarify if the original award included an award of costs.

               BLOG OBSERVATION—The panel did cite Warren and Morris with respect to the “haircut” issue.  We observe that the Second District, in Cash v. County of Los Angeles, discussed in our June 1, 2025 post, found that it followed Morris over Warren on an across-the-board reduction.  Cash was not discussed in Tidrick, but the situation may be distinguishable based on the substantial slash in the fee request rather than just a set across-the-board reduction.

Deadlines, Fees As Damages: Former Counsel In Contempt Proceeding For A Prevailing Party Was Entitled To A Fee Award Under CCP § 1218

Fee Request Was Reduced, But Lower Court Found That Prevailing Party’s Subsequent Counsel’s Withdrawal Of A Prior Timely Fee Motion Allowed Former Counsel A Reason To Still Have It Heard In The Lower Court’s Discretion.

               In Vista Land, LLC v. Robinson, Case No. B331975 (2d Dist., Div. 3 June 26, 2025) (unpublished), defendants were found guilty of contempt and were hit with an adverse award of attorney’s fees by the prevailing party, expressly allowable under CCP § 1218.  The lower court allowed former attorney to receive $61,875 in fees, inclusive of a 1.5 multiplier, much reduced from the requested $155,295.79 inclusive of a 1.75 multiplier.  Also, former counsel was allowed to proceed with an untimely fee motion because his client’s subsequent counsel inexplicably withdrew a timely filed fees motion.  The appellate court affirmed.  There was good cause to allow the renewed fee motion to be considered, with the reduced amount no abuse of discretion given that the lower court reduced the requested hours from 146 to 75. 

Arbitration, Sanctions: $183,304 In Sanctions Relating To Abandoned Arbitration Proceeding Awarded Against Employer Not Timely Paying Arbitration Expenses Under CCP § 1281.98(c)(1)

Sanctions Are Awardable Where Fees Were Expended In Terminated Arbitration Proceedings.

               In an area where there has been a lot of litigation, an employer faces litigating in court and paying sanctions to an employee in a situation where employee wants to arbitrate but employer fails to adhere to the payment deadlines in CCP §§ 1281.97-1281.99.  Employer all too well learned the repercussions of not timely paying in Guffey v. Bokit, Inc., Case No. B333030 et al. (2d Dist., Div. 2 June 26, 2025) (unpublished).  After not timely meeting the required deadlines, the appellate court affirmed a $183,304 attorney’s fees award to employee given that there was extensive discovery activity in the later terminated arbitration proceeding.  Those sanctions were allowable under section 1281.98(c)(1), with the amount of the award being no abuse of discretion. 

Section 998: Defendants Held Jointly And Severally Liable Did Not Beat Jury Verdict So As To Escape Costs Under Section 998

No Non-Economic Damages Were Sought In Vehicle Property Injury Case, So Appealing Defendants Did Not Fashion A Successful 998 Offer.

               Defendants were held jointly and severally liable in a vehicle property injury matter where plaintiff recovered a $204,528 jury verdict damages award as against them and others, based on damages to plaintiff’s truck and destruction of lamb products in the truck.  Defendants’ motion to tax routine costs was denied, although they appealed and argued that a $75,000 CCP § 998 offer was more favorable than the eventual verdict.

               The 4/1 DCA rejected this argument in JBS Carriers v. Mendoza, Case No. D083415 (4^th Dist., Div. 1 June 23, 2025) (unpublished).  Defendants’ argument that they were only 20% responsible for the jury verdict was belied by the joint and several nature of the award, especially given that no non-economic damages were sought (which would have been only several in nature). 

Family Law: Denial Of Needs-Based Family Code Section 2030 Fees Reversed Because Lower Court Made No Findings Of Ability To Pay

Consideration Of Equitable Factors Other Than Disparity and Ability To Pay Are Not Allowable Under Section 2030.

               In Marriage of Saedi v. Kadivar, Case No. B340089 (2d Dist., Div. 2 June 23, 2025) (unpublished), the lower court denied a Family Code section 2030 needs-based fee request by ex-wife in connection with child support modification proceedings.  The denial was reversed and remanded.  The problem was that, under recent amendments to section 2030, the lower court failed to make findings about the ability to pay.  Under the amendments, a family law judge must make findings on disparity in access and ability to pay, with the failure to make findings being reversible error if the error is prejudicial.  It likely was, because the record suggested ex-husband did have the ability to pay.  However, the interesting part of the decision is that other equitable factors other than disparity or ability to pay are irrelevant.  Here is what the appellate panel had to say: “The statute’s requirement of a finding that a fees award is ‘appropriate’ is therefore limited to factors relating to disparity to access and ability to pay for legal representation. Such an interpretation of section 2030 is consistent with other provisions of the statute. Section 2030, subdivision (a)(1), mandates the trial court to ensure each party has access to legal representation to preserve each party’s rights by ordering one party to pay the other party whatever amount reasonably necessary based on an income and needs assessment. Thus, if a court could consider equitable factors unrelated to the parties’ disparity in access and ability to pay, this would contravene the statute’s express purpose.”

Fee Clause Interpretation: 4/3 DCA Affirms Substantial Fees Award Against Tenants In A Dana Point Harbor Slip Dispute

Lower Court Cut Fees Request In Half, Which Was Erroneous, But Respondent’s Failure To Appeal Means The Reduction Did Not Aggrieve Appellants, the Tenants.

               In Papageorges v. Dana Point Harbor Partners, Case No. G063688 (4^th Dist., Div. 3 June 20, 2025) (unpublished), the upshot from this opinion is that a respondent may want to cross-appeal when a lower court reverses a “full fees grant” tentative decision and instead grants about a 50% reduction in its final order, when that final order is appealed by the other side.

               Here, tenants of a slip in Dana Point Harbor sued for what they claimed were improper slip rent increases, arguing that a Master Lease between defendant DPHP and City of Dana Point made tenants third-party beneficiaries.  DPHP and tenants were parties to a Slip License Agreement (SLA) having a broad fees clause mandating fee recovery to the prevailing party in “litigation relating to the subject matter of this Agreement.”  The lower court granted summary judgment to DPHP, concluding tenants were not third-party beneficiaries of the Master Lease and the slip fees did not otherwise violate the SLA.  DPHP filed a fees motion, seeking recovery of all fees defending the lawsuit to the tune of $365,651.  The lower court’s tentative was to grant the request; but, after oral argument, it cut the fee request by roughly 50% to apportion the recoverable fees to those incurred in defending the SLA related causes of action.  Only Tenants appealed.

               The 4/3 DCA determined that DPHP was the prevailing party based on the broad fees clause because both the Master Lease Agreement and SLA were encompassed in the language of the clause, which was mutual in nature (CCP § 1021)—such that the lower court erred in relying on Civil Code section 1717, but that was no problem because there was fee entitlement anyway.  However, the appellate panel determined that the 50/50 allocation was erroneous because the “subject matter” language covered both the Master Lease and SLA.  Even though DPHP was entitled to all its requested fees, it did not appeal such that tenants were not aggrieved by the lower court’s error, leading to an affirmance of 50/50 allocation fee order.  Acting Presiding Justice Sanchez authored this opinion.

POOF!, SLAPP: Cross-Defendant’s $146,495 SLAPP Fee Award Goes POOF! On Appeal

Remand Was Required Because Appellate Court Reversed SLAPP Grant On Three Out Of Six Cross-Claims.

               City of San Jose v. Gradetech, Inc., Case No. H051462 (6^th Dist. June 17, 2025) (unpublished) is a situation where a cross-defendant successfully SLAPPed a cross-complaint with six causes of action brought by the City and where the lower court later awarded cross-defendant $146,495 (out of a requested over $282,000) in SLAPP fees, prompting City’s filing of an appeal.  The Sixth District affirmed the SLAPP grant on three cross-claims, but it reversed the grant on three other cross-claims.  This required a reassessment of the fee award.  Although expressing no opinion on the amount of fees to be awarded, the appellate court did note that City’s partial success on appeal would be a relevant factor for the lower court’s consideration.

Costs: Dismissal Of Unlawful Detainer Defendant Gave Entitlement To Recovery Of Mandatory Routine Costs

Lower Court’s Determination That No Party Prevailed For Routine Cost Purpose Was Reversed With Directions To Award Costs To Dismissed Defendant.

               In Shapell SoCal Rental Properties, LLC v. Chico’s FAS, Inc., Case No. G063663 (4^th Dist., Div. 3 June 17, 2025) (unpublished), tenant and landlord were involved in an Orange County unlawful detainer action and a Los Angeles County breach of lease action.  After a prior OC appeal resulted in the vacating of a default and a default judgment for possession in the UD action, tenant answered the OC action.  Earlier, while the earlier appeal was pending, tenant vacated the premises because the lower court denied a stay of execution request relating to the judgment for possession.  In the Los Angeles action, tenant served a CCP § 998 offer on landlord, an offer which was accepted, resulting in entry of a judgment for the § 998 offer amount plus costs.  Landlord unsuccessfully moved for summary judgment in the UD action.  At an OSC re dismissal hearing in the UD action, the lower court dismissed the action without prejudice.  Tenant filed a costs memo for $6,348, landlord filed a costs memo for $8,799.37, and both sides filed motions to tax costs.  The lower court found no side prevailed, exercising its discretion to not award costs to anyone. 

               The 4/3 DCA, in an opinion authored by Acting Presiding Justice Sanchez, affirmed the denial of costs to landlord but reversed the denial of costs to tenant—directing that it be awarded $6,348.  The basis of the reversal was CCP § 1032(a)(4), which makes it mandatory to award costs for a dismissal entered in favor of defendant—a legal question reviewed de novo.  This mandatory nature of the award was no different in UD actions (Mitchell Land & Improvement Co. v. Ristorante Ferrantelli, Inc., 158 Cal.App.4^th 479, 483 (2007)), with plaintiff’s clever arguments to preempt the statute found unavailing on appeal.  

Section 998: Cross-Defendant’s 998 Offer Was Invalid, So It Did Not Dilute Recovery By Defendant/Cross-Complainant On Other Defense Claims

Be Careful What You Put In Your 998 Offers, Don’t Overreach.

               In T&R Painting and Drywall v. Town Building & Development, Case Nos. B330375 et al. (2d Dist., Div. 6 June 17, 2025) (unpublished), there was a convoluted dispute between a plaintiff subcontractor and a defendant general contractor, with general contractor bringing a cross-complaint which was voluntarily dismissed during the litigation.  Plaintiff sub won a jury verdict, but it was overturned on a JNOV motion based on an unlicensed contractor issue.  Later, prevailing party sub was awarded $24,396.06 in costs and $226,400 in attorney’s fees.  Sub’s appeal was unsuccessful on overturning the costs/fees order.  Sub argued that it made a successful CCP § 998 offer on general contractor’s cross-complaint, which was not accepted.  The problem was that the 998 offer was invalid: it requested not only a dismissal of the cross-complaint but a broader release of all claims, known and unknown.  Because this § 998 offer language was overbroad, there was no basis to upset the costs/fees award.  (Ignacio v. Caracciolo, 2 Cal.App.5^th 81, 86-87 (2016).)

SLAPP: $14,037.27 SLAPP Fees/Costs Award Reversed And Remanded Because Appellate Court Found One Claim Should Not Be Granted

Trial And Appellate Fees/Costs Remanded To The Trial Court, Given Cross-Defendants’ Partial Success.

               Wald v. Martin, Case Nos. B335960 et al. (2d Dist., Div. 6 June 16, 2025) (unpublished), illustrates how a partial reversal of a SLAPP grant generally leads to a reversal and remand of the subsequent fees/costs award to a prevailing defendant or cross-defendant.  That is what happened.  Cross-complainant’s complaint was SLAPPed in entirety, with the cross-defendant winning $14,037.27 in mandatory fees and costs under the SLAPP statute.  However, on appeal, cross-complainant obtained reversal of a SLAPP grant on one claim, enough to require a restudy of fees/costs (both trial and appellate) to the partially successful cross-defendant.  (Maleti v. Wickers, 82 Cal.App.5^th 181, 232-233 (2022).) 

Construction, Costs, Ethics, Indemnity, Fee Clause Interpretation, Section 1717: $4.176M Contractual Fee Award To General Contractor And Against Owner Affirmed On Appeal, But Expert Witness Costs Award To General Contractor Reversed As A Matter Of Law

Case Explores Fee Clause Interpretation, An Award Of Fees To An Unlicensed Associate Supervised By A California Attorney, And An Award Of Expert Witness Costs Which Were Not Pled Or Proven As Damages.

               The Whiting-Turner Contracting Co. v. 250 Fourth Development LP, Case No. A169470 (1^st Dist., Div. 5 June 13, 2025) (unpublished) is case where both sides got something on appeal, although construction general contractor was probably more pleased.  However, it did explore a plethora of issues of interest to us as fee bloggers.

               General contractor won a construction contract breach case against owner.  Later, the lower court awarded general contractor $4,716,845.21 in attorney’s fees under contractual construction agreement provisions in owner’s favor (made reciprocal by Civil Code section 1717) as well as $619,516 in expert witness costs.  On appeal, general contractor retained the fee victory, but owner overturned the expert witness costs award.

               Fee Clause Interpretation/Section 1717.  The fee award was sustained based on a broadly worded fee recovery clause (see AIA Owner/Contractor Forms A102-2007) in the owner/contractor agreement, which did allow for direct recovery by owner yet became reciprocal for general contractor based on section 1717.  Even though there was ending indemnity language which might have led to a different result in isolation, construction of the entire clause showed general fee entitlement to general contractor by virtue of section 1717.  (Because this relates to AIA contracts, it should be instructive to construction practitioners in the cited contractual provisions.)

               Ethics—Unlicensed Attorney Compensation.  Owner challenged some fees awarded to an unlicensed associate, before he was admitted pro hac vice in California, with a referee awarding fees to the associate at a paralegal rate.  The appellate court observed that the Birbrower general prohibition against awarding fees to unlicensed attorneys does have exceptions as to registered in-house counsel, out-of-state attorneys in arbitration proceedings, and out-of-state attorneys on short-term litigation projects (CRC, rules 9.46, 9.43, 9.47).  Because the out-of-state associate was supervised by an actively licensed California attorney, CRC rule 9.47(c)(4) likely applied, but it was made unnecessary by the referee’s decision to award fees at a lower paralegal rate (not tantamount to the practice of law)—more underscored because the associate did not make court appearances or provide legal advice to the client.

               Expert Witness Fees as Costs.  This related to an award of fees for expert witnesses not ordered by the court, which is not allowed under CCP § 1033.5(a)(8), (b)(1).  However, that did not end the issue as general contractor was relying on the contractual provision allowing recovery of fees and costs.  The appellate panel did observe that most  intermediate appeal decisions supported owner’s position that such expert witness fees must be pled and proven as damages at trial, not under a cost memorandum.  But it then confronted Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC, 185 Cal.App.4^th 1050, 1056, 1058-1060, 1065-1066 (2010), which held otherwise but in the context of a reciprocal expert fee contractual provision inuring to the overall “prevailing party.”  The 1/5 DCA found the Thrifty contract provision distinguishable because the expert witness costs provision in the case before it only benefited owner—the result being that section 1717’s reciprocity principles could not make it applicable in favor of general contractor.  This is an important nuance, because it shows that unilateral costs provisions will only be enforced in favor of the benefited unilateral party. 

Deadlines, Family Law: Ex-Wife’s Challenge To $193,000 In Attorney’s Fees Under Family Code Section 271 Or Contractual Marital Stipulation Fee Clause Affirmed On Appeal

Although Notice Of Motion For Appellate Fees Was Untimely, Record Showed That The Lower Court Granted An Extension Request To Ex-Husband As Moving Party.

               In Marriage of Richards, Case Nos. G062449 et al. (4^th Dist., Div. 3 June 13, 2025) (unpublished), ex-wife appealed a Family Code section 271 sanctions and contractual marital stipulation fee award of $193,000 (out of a requested $234,000), inclusive of some appellate fees for husband winning a prior appeal.  Appellant’s appeal was unsuccessful.  With respect to fee entitlement, she could not attack the marital stipulation entered as a judgment through a collateral attack below, but only through an appeal which was not done.  (Hobbs v. Duff, 43 Cal. 485, 490 (1872).)   With respect to the appellate fees, ex-husband’s counsel was candid with the lower court that the appellate fees motion was untimely, but counsel lobbied for an extension and was granted fees—implicitly showing the extension was granted.

Sanctions, SLAPP: Plaintiff Losing A SLAPP Motion On A Cross-Complaint Was Properly Not Granted 128.7 Sanctions For A Mistaken Payment Statement

Cross-Complainants Did Fess Up To The Problem, With The Lack Of A Reporter’s Transcript Of The Sanctions Hearing Further Showing No Abuse Of Discretion In The Denial Of The Sanctions Request.

               Although we take the cases as we find them for posting purposes, the next one was a dispute over an apparent snafu in sending a car repair settlement check of $10,511.74 to MAACO, which might have been absconded by someone but resulted in a cross-claim and then a subsequent SLAPP motion as to the cross-complaint.  That led to more litigation, namely the appellate opinion in Mora v. Menjivar, Case No. A169997 (1^st Dist., Div. 1 June 12, 2025) (published; discussion on sanctions motion unpublished).  You can judge, for yourselves, whether litigation and judicial resources were served with what happened in this case.

               Plaintiff’s SLAPP motion leveled at the defense’s cross-complaint was denied.  And, that result was affirmed on appeal.  Everyone should read this, because it does discuss timeliness of SLAPP filings, confirming that a supporting memorandum and declarations must be filed within the 60-day deadline for filing SLAPP motions with respect to having a motion timely considered.  With respect to the sanctions motion by plaintiff, it was directed to a misstatement that plaintiff had received the settlement payment, which was corrected as being mistaken—as well as admitted to.  The denial of the sanctions motion based on these circumstances was no abuse of discretion, not to mention that plaintiff did not provide a reporter’s transcript to show the lower court’s decision-making on such discretionary motion was erroneous.