CALIFORNIA ATTORNEY'S FEES

In The News . . . . Quinn Emanuel Firm Is Seeking 5% Of Class Action Recovery By Insurers Suing The Federal Government For Affordable Care Act Compensation In U.S. Court of Federal Claims

That Translates To An Hourly Fee Of $18,500, Almost A Twenty Percent Positive Multiplier.

            Here is an interesting one to see how it will pan out. 

            Quinn Emanuel is seeking 5% of a class action recovery by insurers suing the federal government in the U.S. Court of Federal Claims for Affordable Care Act compensation.   That fee is 5% of the $3.7 billion recovery by insurers, which certainly would not be alarming under the percentage-of-recovery benchmarks (even in mega-settlement cases).   However, the rub is that a lodestar check shows that the class action attorneys would be receiving close to a positive 20 times multiplier to their normal billable hourly rates, translating to hourly rates as high as $18,500.  This will be an interesting one to follow as far as determining what the judge does.

Family Law: $5,700 Family Code Section 2030 Borson Award To Ex-Wife Was No Abuse Of Discretion

Borson Challenge Rejected, With Record Showing Disparity In Assets Between Former Spouses.

            In Marriage of Swain, Case No. G058117 (4^th Dist., Div. 3 Aug. 3, 2020) (unpublished), ex-wife’s attorney was awarded $5,700 in Family Code section 2030 fees, payable by ex-husband to ex-wife, after her current attorney filed a request but was substituted out before the fee award was made.  Ex-husband appealed, but the 2030 order was affirmed.  First up was ex-husband’s argument that the family law judge had no jurisdiction to hear a Borson (In re Marriage of Borson, 37 Cal.App.3d 632 (1974)) request, which is one where a client-discharged attorney—with the client’s consent—may file a motion for an award of fees to attorney while the attorney is still of record, with the family court having discretion to set the amount of fees and deciding whether they are to be paid by the client or the opposing party.  That argument failed because the attorney substitution was filed after the Borson request was made such that the lower court had jurisdiction to hear it.  (In re Marriage of Erickson & Simpson, 141 Cal.App.4^th 707, 713-714 (2006).)  Although some information on Judicial Council forms was wrongly checked or omitted, there was no prejudice because the declarations and income/expense statements left no doubt about what was at issue.  Finally, the record did show that the lower court reviewed the billing statements, unlike the deliberate failure to review requiring a reversal under different facts in In re Marriage of Tharp, 188 Cal.App.4^th 1295, 1314-1315 (2010).  Justice Fybel authored the 3-0 panel opinion. 

Probate: $48,625 Out Of Requested $68,175 In Extraordinary Attorney’s Fees Under Probate Code Section 10811 Affirmed On Appeal

No Abuse Of Discretion Shown By Probate Judge.

            Probate Code section 10811 gives a probate court discretionary authority to allow fees for extraordinary services by an attorney for the personal representative of an estate, with examples being listed in CRC, rule 7.703(c).  Furthermore, Probate Code section 10832 authorizes the probate court to allow extraordinary fees before final distribution of the estate if certain conditions are met, such as where the estate administration will continue for a long time, a present payment will benefit the estate/its beneficiaries, or “other good cause.” 

            In Estate of Chatelain, Case No. B295318 (2d Dist., Div. 2 July 29, 2020) (unpublished), a probate court awarded $48,625 out of a requested $68,175 in requested extraordinary fees for attorneys representing the administrator/special administrator two estates, including a $8,625 fee request which enabled one estate to recover a $250,000 estate tax refund (with this latter one paid out of the other estate).  This interim award was affirmed on appeal, even though no final accounting had been approved.  Given the work by the attorneys (especially on the tax refund), the Probate Code and CRC provisions justified the award—no abuse of discretion.

Discovery: Central District Of California Case Awarded Some Attorney’s Fees Where Party Responding To Rule 30(b)(6) Notice Failed to Specify Production Date

Practice Point For Litigators:  Specify A Time For Production Or Develop A Good Email Chain!

            In QC Labs v. Green Leaf Lab, LLC, 2019 WL 6797250 (C.D. Cal. July 19, 2019), a responding party to a F.R.Civ. P. 30(b)(6), under Rule 34(b)(2)(B), failed to specify a time for production of documents/EIS even though Rule 34 requires to specify a reasonable response date beyond the date mentioned in the production notice.  The responding party did not indicate an end date for production, even on a rolling basis, which resulted in a motion to compel grant and award of some attorney’s fees/costs to the requesting party.  So, the practice tip for federal practitioners is to specify a reasonable end date or develop an agreement through emails which shows there is no firm deadline, but the parties will communicate about time frames for a “rolling production” where a document/EIS production is time-consuming.

Section 998: Joint CCP § 998 Offer Made By Husband And Wife To Three Defendants, In Negligence Case Involving Comparative Negligence For Both Noneconomic and Economic Damages, Was Invalid

Award Of Expert Fees To Plaintiffs Reversed, Because Offer Failed To Allocate Out For Each Defendant.

            Reynolds v. Pope, Case No. A155406 (1^st Dist., Div. 5 July 28, 2020) (unpublished) is a factually interesting case where a professional baseball player and his wife sued a neighbor defendant who invited some friends to his parents’ home for an LSD party where one of the guest’s drug use subsequently injured the plaintiff baseball player in an attack at the player’s home.  The jury entered a verdict for plaintiffs, but it did reduce damages for comparative negligence of the various parties (although awarded damages were over $1.5 million).  Earlier, plaintiff husband made a collective offer to settle with defendants and neighbor parents for $900,000, while plaintiff wife submitted a collective offer for $100,000.  Neither offer was accepted, plaintiffs dismissed the claims against parents in return for a costs waiver, and the trial judge awarded expert costs based on the 998 offer to plaintiffs over objections by defendant. 

            The 1/5 DCA reversed the expert costs because the 998 was invalid.  Because this was a comparative negligence situation where there was only several liability for noneconomic losses but joint and several liability for economic costs, there was a need to apportion out the offers so that each defendant could assess exposure.  “Plaintiffs fail to explain why joint liability for some but not all damages is sufficient” given that the noneconomic loss liability potentially varied in nature under Proposition 51.  (Burch v. Children’s Hospital of Orange County Thrift Stores, Inc., 109 Cal.App.4^th 537, 547 (2003); Taing v. Johnson Scaffolding Co., 9 Cal.App.4^th 579, 586 (1992).)

Appealability, Request For Admissions: Appeal Of $52,245.40 Costs-Of-Proof Sanctions Upheld On Appeal, Because It Was Dismissed

Reason Was That Defense Insurer Voluntarily Paid Both The Judgment and Sanctions In Full.

            In Nelson v. Estate of Holguin, Case No. B298135 (2d Dist., Div. 3 July 28, 2020) (unpublished), defendant estate suffered a $167,250 adverse jury verdict and CCP § 2033.420 costs-of-proof sanctions of $52,245.40.  Defendant’s insurer voluntarily paid the judgment and costs-of-proof sanctions, but it subsequently appealed the section 2033.420 sanctions award.  The 2/3 DCA dismissed the appeal, determining that the insurer’s voluntary payment waived the right to appeal in the absence of a settlement or compromise.  (Miller v. Cabral, 13 Cal.App.3d 503, 506 (1970).)

            BLOG COMMENT:  There is an exception to the waiver rule, where the payment was made under risk of compulsion, such as where a mechanic’s foreclosure sheriff sale might take place and result in a draconian forfeiture.  (Reitano v. Yankwich, 38 Cal.2d 1, 3 (1951).)  Here, however, there was simply a voluntary payment, not hinged to a compromise or settlement preserving the ability to appeal. 

Family Law: $100,000 In 2030/271 Needs-Based Fees And Sanctions Against Ex-Husband, Lawyer With A Profitable Law Firm And Equity In A House, Affirmed On Appeal

If You Assert Inability To Pay, Make Sure You Have The Proper Ammunition!

            We have to say, if you are going to appeal needs-based fee awards under Family Code sections 2030/2032 or sanctions under Family Code section 271 based on inability to pay, you better do the math and convincingly show the appellate court why you could not pay.  Ex-husband did not do that in Farzam v. Charchian, Case No. B293972 (2d Dist., Div. 3 July 28, 2020) (unpublished), after the lower court awarded ex-wife $75,000 in need-based fees and $25,000 in sanctions (payable $1,500 per month). 

            Ex-husband only appealed based on the contention he did not have the ability to pay these awards.  The problems for him were multiple in nature: (1) he had substantial earning capacity through his law practice; (2) he had $1.5 million in home equity in a Brentwood residence; and (3) wife left the work force to raise a family.  What more was needed?  None, either for the trial or appellate courts.

Prevailing Party: Trial Court Properly Exercised Its Discretion In Finding Dismissed Civil Harassment Defendant Was Not Prevailing Party And Not Entitled To Attorney Fees

Trial Court Made Its Prevailing Party Determination Based On The Circumstances Surrounding The Case.

            Plaintiff in Steele v. Holcomb, Case No. G057931 (4^th Dist., Div. 3 July 27, 2020) (unpublished), who served on the board of directors for a residential homeowners association, filed a petition for a civil harassment restraining order against a resident for violent and harassing conduct she alleged he displayed concerning maintenance issues at his residence.  Days before the initial trial court hearing, plaintiff dismissed her petition without prejudice.  Self-represented defendant moved to recover $23,167 in fees he paid to an attorney to advise him on how to proceed in defending himself in the matter – relying on inapplicable section 685.040 of the Enforcement of Judgments Law and Civ. Code section 1717 (which allows a prevailing party to recover fees on a contract where it contains a fees provision).  When the trial court denied his fees request, defendant filed a motion for reconsideration arguing entitlement under other inapplicable code sections, and his belief that he was the prevailing party based on plaintiff’s dismissal of the action.  The trial court declared defendant failed to meet the statutory criteria for reconsideration, but explained that its finding of prevailing party status was discretionary, and that it did not find him to be the prevailing party based on the circumstances of the case – adding “sometimes there’s other reasons for dismissing the case.”  Even if the trial court found defendant to be the prevailing party, it explained, it would not grant attorney fees or costs based upon the acrimonious nature and type of dispute.

            On appeal, defendant argued that the trial court was required to find him the prevailing party as a matter of law pursuant to the Code Civ. Proc. § 1032(a)(4) prevailing party definition, and award fees under § 527.6(s) – which allows for the award of costs/fees to prevailing party in civil harassment action.  Not so, said the 4/3 DCA.  First, the prevailing party definition in § 1032(a)(4) is particular to that cost statute and does not necessarily apply to attorney fee statutes.  Second, defendant’s § 527.6(s) argument was forfeited as he had failed to request fees with the trial court under § 527.6(s).  Defendant could not request fees from the trial court under inapplicable code sections, then use the trial court’s failure to apply a code section it was never asked to apply as basis for appeal. 

Appealability, Probate: Plaintiff’s Appeal Of Trial Court’s Interim Order Allowing Defendant Trustee Access To Trust Funds For Defense Is Rendered Moot When Trial Court Issues New Order Effectively Granting Same Relief As Appealed Order

Unique Provision Of The Probate Code Provided An End Run Around The Stay Created When Plaintiff Appealed And Posted A Bond.

            Probate Code § 1310(b) provides that, “for the purpose of preventing injury or loss to a person or property, the trial court may direct the exercise of the powers of the fiduciary . . . as if no appeal were pending.”  Actions taken under section 1310(b) while the appeal is pending “are valid, irrespective of the result of the appeal.”  As such, an appeal – even if meritorious – cannot reverse nor stop a trustee’s act pursuant to a section 1310(b) order.  Section 1310(b) also provides that “[a]n appeal of the directions made by the court under this subdivision shall not stay these directions.”

            In Mitchell v. Lingelbach, Case No. G057641 (4^th Dist., Div. 3 July 27, 2020) (unpublished), plaintiff daughter filed a petition to invalidate amendments and restatements of her deceased father’s Trust based on capacity, undue influence, mistake and fraud issues.  Additionally, she sought to remove and surcharge her father’s wife as co-trustee; to restrain wife from using Trust assets to defend the action; for an accounting; and to cancel beneficiary designations and deeds acquired by wife and her adult children.

            When the trial court granted wife’s request to access Trust funds to pay for her defense of the Trust, with the trial court granting an initial withdrawal of $150,000 for that purpose, daughter immediately appealed and posted a bond to stay enforcement of the trial court’s fees order.

            Wife responded to the stay by moving under § 1310(b) to lift the stay to allow her to access funds to defend the Trust – with the trial court granting wife’s request and issuing a new order granting the same relief as the interim order on appeal.  Wife then paid her attorneys the $150,000 for their fees, and filed a successful motion to dismiss daughter’s appeal as moot based on the trial court’s § 1310(b) order effectively granting the same relief. 

            Based upon the statutory language of section 1310(b), the appellate panel's hands were essentially tied.  The 4/3 DCA was unable to provide daughter relief from the appealed interim fees order, nor reversal of the 1310(b) fees order, and dismissed daughter’s appeal as moot.  (In re Jessica K. 79 Cal.App.4^th 1313, 1315 (2000).)

Costs, Section 998, Special Fee-Shifting Statutes: Plaintiff Gets Second Chance At Arbitration And Post-Arbitration Costs Where Trial Court Erroneously Interpreted That The Parties’ Insurance Agreement Precluded The Award Of Arbitration Costs

Insurance Policy Did Not Preclude Recovery Of Costs Under Sections 998 Or 1293.2 And Strictly Limited Arbitrator’s Authority To Decide Only Plaintiff’s Entitlement To Damages And The Amount Thereof.

            In Storm v. The Standard Fire Ins. Co., Case No. B299277 (2d Dist., Div. 4 July 24, 2020) (published), plaintiff and defendant insurance company arbitrated a dispute over an underinsured motorist claim she filed.  After receiving an arbitration award in excess of the unaccepted section 998 offer she made to defendant, plaintiff sought arbitration and post-arbitration costs of $39,960.02 from the trial court under Code Civ. Proc. §§ 998 and 1293.2.  Defendant argued that its insurance policy with plaintiff precluded the award of arbitration costs, and that plaintiff failed to first request costs from the arbitrator before requesting them from the trial court – with the trial court granting defendant’s motion to tax and striking plaintiff’s memorandum of costs in its entirety without considering whether the requested costs were reasonable or necessarily incurred.

            On appeal, plaintiff argued that the trial court’s conclusion that the parties’ insurance agreement precluded her recovery of arbitration costs under section 998 was erroneous.  The 2/4 DCA agreed.  Although the terms of the policy established that the parties agreed to pay their own arbitration expenses and their equal share of the arbitrator’s fee, the terms did not limit the statutory right to seek and recover those costs under section 998.  Likewise, the appellate panel found no provision in the insurance policy that precluded or limited the right to recover section 1293.2 post-arbitration costs incurred to confirm, vacate, or modify the arbitration award.  As to defendant’s contention that plaintiff could not recover costs because she failed to request them from the arbitrator, the 2/4 DCA found defendant’s reliance on Heimlich v. Shivji (2019) 7 Cal.5^th 350 misplaced.  Unlike Heimlich, where the parties had placed the issue of costs before the arbitrator, the policy provisions here strictly limited the arbitrator’s authority to decide only two issues – whether plaintiff was entitled to damages and the amount of those damages.  The arbitrator had no authority in this case to make a determination as to costs reimbursement.

            Trial court’s order reversed – with the matter remanded with instructions to consider whether plaintiff’s requested costs are recoverable and necessarily incurred pursuant to sections 998 and 1293.2.

Reviews: Co-Contributor Marc Publishes Article On Nuts And Bolts Of Videoconference Dispute Resolution

The Article About Videoconference Dispute Resolution Appears In Current Issue Of California Litigation, Vol. 33, No. 2 (2020).

        These days, Marc serves as a mediator on the panels of the USDC Central District and the Orange County Superior Court. Marc's article, "Nuts and Bolts of Videoconference Dispute Resolution in the Time of COVID-19", addresses the mechanics, best practices, and  pros and cons of videoconferencing in an ADR practice. With the permission of the California Lawyers Association and its journal California Litigation, the article is republished here and can be read by clicking on the title of the hyperlinked article. Marc is solely responsible for the contents and opinions in the article.

Arbitration: Substantial Arbitration Award, A Lot Of It Attorney’s Fees And Costs, Confirmed On Appeal After 2/3 DCA Reverses An Order Vacating The Award In A Homeowner-Contractor Home Renovation Dispute

Arbitrator’s Failure To Disclose His Own Contractor Dispute 20 Years Earlier Did Not Justify Vacating The Award.

            An arbitrator in R&R Construction, Inc. v. Roski, Case No. B293748 (2d Dist., Div. 3 July 22, 2020) (unpublished) awarded homeowner $265,036.40 in damages, $589,967.50 in attorney’s fees and costs, and $60,005 for arbitration fees/expenses in a dispute with a contractor over home renovations.  (We post on this to show how arbitration can be an expensive process, frequently resulting in large fees/costs where there is a fee-shifting basis available.)  However, the arbitrator had failed to disclose that, more than 20 years earlier, he had a dispute with a pool contractor before the Contractors’ State License Board.  The superior court vacated the award, determining that the failure to disclose this past dispute might be an indication of arbitrator bias towards contractors.  The 2/3 DCA, in a 2-1 opinion, disagreed and reinstated the award, finding this past dispute did not indicate a categorical bias on the part of the arbitrator under the circumstances.  Reversal of fortune for the homeowner!

Cases Under Review: Siry Decision, Which Created A Split In Appellate Thinking On A Fee Issue Under Penal Code Section 496(b), Is Accepted For Review By The California Supreme Court

Siry Departed From Opposite Conclusion Reached by the Fifth District in Switzer v. Wood.

            On March 4, 2020, we posted on Siry Investment v. Farkhondehpour, a 2/2 DCA published opinion concluding that a trial judge could not award treble damages and attorney’s fees under Penal Code section 496(c), parting company with the contrary conclusion by the Fifth District in Switzer v. Wood, 35 Cal.App.5^th 116 (2019).  We can now report an update.  On July 8, 2020, in a 7-0 vote, the California Supreme Court granted review of the case (assigning it Case No. S262081) and framing these issues as being presented for review:  (1) May a party in default file a motion for new trial raising legal error, including the inapplicability of certain remedies under the allegations as pleaded? (2) May a trial court may award treble damages and attorney fees under Penal Code section 496, subdivision (c), in a case involving the fraudulent diversion of business funds rather than trafficking in stolen goods?

Trade Secrets: Trial Court’s Award Of $65,000 Out Of A Requested $198,380 Affirmed Under Civil Code Section 3426.4, CUTSA’s Fee-Shifting Provision

Both Objective And Subjective Bad Faith Prongs Supported By Substantial Evidence.

            The substantial evidence/abuse-of-discretion standards generally are hard to surmount.  No the less so in Jafari v. Gastelum, Case No. B293034 (2d Dist., Div. 7 July 21, 2020) (unpublished).

            What happened here is that defendant prevailed in an action for breach of contract/trade secret misappropriation after plaintiffs voluntarily dismissed their action without prejudice just before their opposition was due to an adverse summary judgment motion.  Defendant moved to recover attorney’s fees of no less than $198,380 under Civil Code section 1717 (the contract fee-shifting statute) and Civil Code section 3426.4 (the trade secret misappropriation fee-shifting provision).  The lower court awarded $65,000 under the trade secret fee-shifting statute, although there was some confusing language that defendant prevailed on the contract claim.

            The 2/7 DCA affirmed.  After construing the fee award to indicate that it was really hinged to section 3426.4, the appellate court affirmed on the basis that substantial evidence supported that there was objective speciousness and subjective bad faith as required under the trade secret misappropriation statute.  (FLIR Systems, Inc. v. Parrish, 174 Cal.App.4^th 1270, 1275 (2009).)  To some extent, the objective prong was satisfied not only upon the lack of evidence, but plaintiffs’ admission in their opening appellate brief that they “did not have proper ammunition to win anything.”  On the subjective prong, defendant was able to show there might have been some retaliation for his cooperation with former employees in Department of Labor Standards Enforcement (DLSE) proceedings as far as bringing this dismissed suit—certainly enough under a substantial evidence review standard to justify affirmance of the fee award.

Costs, Sanctions: Trial Court Properly Denied CCP § 128.7 Sanctions Even Though Opposition Evidence Was Not Overwhelming; However, Costs Had To Be Awarded To Attorney Obtaining Dismissal Of Ex-Client’s Malpractice Complaint

Prevailing Attorney Fell Within Mandatory Category Of A Routine Costs Grant.

            This next matter involved a contentious domestic, non-divorce temporary restraining order situation where an attorney sued for recovery of unpaid fees by one side (a male in a relationship with an ex-girlfriend) where there were malpractice allegations that the attorney had an affair with a former girlfriend of client/provided confidential information to the former girlfriend.  In the end, client’s malpractice action was dismissed on a demurrer, but the superior court clerk refused to enter a routine costs award based on the dismissal—after the trial judge refused to award CCP § 128.7 sanctions against client based on the salacious allegations in the ex-client’s case.

            The 4/1 DCA, in Kelly v. Rutman, Case No. D076022 (4^th Dist., Div. 1 July 21, 2020) (unpublished), affirmed the sanctions denial but reversed the refusal to award routine costs.

            Without going into all the specifics, the inferences from the attorney-former girlfriend relationship—although not overwhelming—did allow discretion to the trial judge to deny section 128.7 sanctions based on the overall circumstances.  Not the same result on the routine costs issue.  Here, attorney was a prevailing party when the malpractice action was dismissed—ex-client obtained no relief and a dismissal was entered in attorney’s favor (Code Civ. Proc., § 1032(a)(2)), a precise category allowing attorney recovery of routine costs.

Family Law: Husband Successfully Challenges Trial Court’s Award Of Section 1101(g) Attorney Fees To Wife And Gets A Second Chance At § 2107(c) Sanctions Against Wife

The Trial Court Erred In Its Interpretation Of Family Code §§ 1101 And 2107.

            In Marriage of Yiu and Liu, Case No. B293754 (2d Dist., Div. 3 July 17, 2020) (unpublished), husband appealed the trial court’s award of attorney fees to his wife under Family Code § 1101(g) and its denial of his requested § 2107(c) sanctions against his wife – arguing the trial court erred in its interpretation of Family Code §§ 1101 and 2107, and the 2/3 DCA agreed. 

            Section 1101(a) allows a breach of fiduciary duty claim if the breach causes an impairment to the claimant spouse’s existing one-half interest in community property – with 1101(g) providing for an award of attorney fees and costs in addition to 50% of any asset undisclosed or transferred in breach of fiduciary duty.  Wife based her claim for fees, under section 1101, on husband’s failure to inform her he had repaid two $35,000 loans to his father from community funds a month before the couple separated.  Although wife’s interest in the community estate was not impaired by husband’s loan repayments and she was not awarded 50% of the loan repayments, the trial court concluded it was required to award fees to wife for husband’s breach.  Not so, said the appellate panel.  Because husband’s breach did not result in impairment to wife’s one-half interest, wife had no claim under 1101(a), and therefore no entitlement to remedies under section 1101(g) – including attorney fees.

            As to husband’s sanctions request against wife – he sought $300,000 under section 2107(c) because wife failed to disclose financial accounts and transactions in discovery and at trial.  Husband additionally sought fees and costs as sanctions under section 271 based on the same conduct.  The trial court denied husband’s request under 2107(c), and awarded $22,000 under section 271 – concluding husband’s section 2107 request was not properly noticed, prepared and presented, and that section 271 was “the appropriate avenue for [husband’s] fees and costs.”  The 2/3 DCA disagreed with the trial court’s conclusion.  The trial court and parties agreed to bifurcate attorney fees and sanctions issues, the parties followed the briefing schedule set by the trial court, and the trial court had instructed husband that he did not need to file his request as a formal request for order.  Because the trial court had summarily denied husband’s section 2107 request, the appellate panel was unable to determine whether husband was prejudiced – whether the trial court would have awarded sanctions under section 2107 and, if it had, whether it would have awarded more than the $22,000 – and reversed and remanded with instruction that the trial court consider husband’s section 2107 motion.

Civil Rights, Special Fee Shifting Statute: Water District Correctly Denied CCP § 1038 And FEHA Fees Against Non-Prevailing Plaintiff Who Was Represented When Civil Rights Suit Was Filed And Did Not Contest Defense Dispositive Motion

No Evidence That Case Was Filed Or Maintained For An Improper Purpose.

            In Fong v. Eastern Municipal Water Dist., Case No. E071088 (4^th Dist., Div. 2 July 16, 2020) (unpublished), plaintiff—through an attorney—filed a complaint alleging illegal recording Penal Code and FEHA claims.  Her attorney withdrew from the case, and the defense filed an unopposed summary judgment motion.  Later, after entry of judgment, defendant Water District sought to recoup prevailing party attorney’s fees under CCP § 1038 and FEHA’s fee-shifting statute (Gov. Code § 12965(b)).  The lower court denied the fees request.

            The 4/2 DCA affirmed, specifically based on the particular circumstances at play.

            CCP § 1038 allows public entities to obtain fees for a frivolous civil action under the California Tort Claims Act after a defendant prevails on a summary judgment, directed verdict, or nonsuit motion.  FEHA only allows discretionary fees if the non-prevailing plaintiff had no objective belief for believing plaintiff’s case had potential merit. 

            On the § 1038 request, the statute required a fee motion before entry of judgment, which did not occur despite some ambiguity in the statutory language—so, it was untimely.  (Gamble v. Los Angeles Dept. of Water and Power, 97 Cal.App.4^th 253, 258-259 (2002).)  With respect to the FEHA fee request, plaintiff filed the suit when she was attorney represented and did not put up any obstacles to a dispositive motion during the prosecution phase of the case—these circumstances did not show bad faith. 

Civil Rights, Multipliers: Lower Court Properly Denied Prevailing FEHA Plaintiff’s Request For A 2.0 Positive Multiplier

Grant Of Full Lodestar Request Was The Main Reason For Refusing Multiplier, A Determination Affirmed On Appeal.

            A plaintiff prevailed on FEHA claims against defendant in Scudder v. Dept. of Transportation, Case No. B293859 (2d Dist., Div. 5 July 14, 2020) (unpublished).  Plaintiff then moved for attorney’s fees in a lodestar amount of $592,075 augmented by a positive 2.0 multiplier because the case was taken on a contingency basis and it supposedly took a large portion of the small prosecuting firm’s time.  The trial judge awarded the full lodestar request, but he denied the multiplier request.  He did so because the case was not exceptionally complex (involving one plaintiff), no exceptional skill was displayed in prosecuting the matter, no specific facts were shown to demonstrate preclusion from other employment, and the lodestar grant fully compensated plaintiff’s attorneys for the time they expended.

            The 2/5 DCA affirmed.

            First of all, the appellate court found there was an inadequate record because no reporter’s transcript or agreed/settled statement on the hearing was presented for review such that there was no presumption the trial judge failed to consider the proper factors in coming to a multiplier denial decision.  (We have posted on this point many times before; where failure to consider factors or discretion is involved, it is imperative to have some type of record on what happened at a fee hearing.)  However, even on the merits, the trial judge was not required to grant a multiplier—with the available record vindicating his reasoning (especially given that the full lodestar award compensated attorneys for their work effort). 

Assignment: Third District Affirms Refusal To Award Attorney’s Fees Given Inadequate Proof That A Lease With A Fees Clause Was Assigned

This One Counsels Transactional Lawyers To Make Sure Express Assignments Are Inked.

            In Orozco v. Conrad, Case No. C086667 (3d Dist. July 14, 2020) (unpublished), plaintiff obtained a compensatory and punitive damages verdict from a jury, with the trial court reducing damages for multiple reasons.  The lower court then denied both parties’ fee requests and plaintiff’s cost request.  On appeal, the Third District affirmed.  The problem with the fees request was the lack of a contractual relationship between the two sides, because the lease was never expressly assigned.  The discussion of this issue shows that the parties may have intended this to be the case, but there was not enough proof to show it absent an express assignment.  With respect to the costs issue, the lower court did not abuse its discretion in concluding that trial technology costs were not necessary or were excessive given the nature of the case.

Sanctions, SLAPP: Trial Court Appropriately Issued Sanctions Against Defendant, Who Was Involved In Pending Litigation With Plaintiff, For Violation Of Restraining Order Dictating Method And Nature Of Communications With Plaintiff

Defendant’s Claims Of Litigation Privilege And Anti-SLAPP Law Protections Were No Defense Of Her Violations Of Restraining Order.

            Self-represented husband and wife were involved in litigation through various lawsuits against self-represented ex-girlfriend of husband – claiming ex-girlfriend conspired with others to fraudulently obtain money, including substantial sums allegedly conned from husband.  Husband’s relationship with ex-girlfriend ended just prior to the beginning of his relationship with wife.

            Alleging harassing and intimidating conduct from wife, ex-girlfriend sought a restraining order in Wons v. Ferry, Case No. F073347 (5^th Dist., July 13, 2020) (unpublished).  The trial court, finding evidence of wife’s conduct justified issuance of a restraining order – but recognizing the parties remained embroiled in several pending litigations – issued a restraining order prohibiting contact between wife and ex-girlfriend except as necessary to participate in litigation, and ordering that such communication be conducted only in writing and to be not harassing in nature.

            When wife violated this order, the trial court imposed $500 in sanctions against her.  When wife continued to violate this order, the trial court imposed a second sanctions award against her in the amount of $1,000. 

            On appeal, wife argued that her communications with ex-girlfriend were not subject to restraint and sanctions because they were protected by the litigation privilege and anti-SLAPP laws.  The 5^th District didn’t buy it and affirmed.  The restraining order did not preclude wife from contacting ex-girlfriend about the ongoing litigation.  It simply limited the ways in which that contact could occur – in writing and without a harassing nature.

            Wife’s arguments of litigation privilege and anti-SLAPP law protections failed because she was not restrained from or sanctioned for pursuing litigation, but for violating a valid court order warranted by her own behavior.  Sanctions for violations of a restraining order are not precluded simply because the conduct occurs in the course of pending litigation.