CALIFORNIA ATTORNEY'S FEES

Prevailing Party: Neighbor Whose Lawsuit Was Dismissed Because Coastal Commission Granted De Novo Appeal Of Permit Dispute Did Not Prevail For Fee Recovery Purposes

Appellate Court Agrees With Trial Court’s Conclusion.

            Fudge v. City of Laguna Beach, Case No. G055711 (4^th Dist., Div. 3 Feb. 13, 2019) (published) involves, as frequently happens, a dispute by coastal neighbors over a municipal grant of a coastal development permit (CDP). Real party in interest neighbor #1 obtained from Laguna Beach a CDP to demolish his house. Plaintiff neighbor # 2 challenged the permit before the California Coastal Commission (CCC) and in state court. Neighbor #2 was granted a de novo appeal by the CCC, prompting the trial judge to dismiss the state court suit. Neighbor #2 argued he prevailed, but the trial court denied the fee motion. The 4/3 DCA, in an opinion authored by Acting Presiding Justice Bedsworth’s colorful writing style, affirmed both the merits and fee denial. Here is what he said on that last ruling: “One last matter must be dealt with: Attorney fees. In yet another irony, Fudge [neighbor #2] sought his attorney fees in the trial court even though he lost. The trial court unsurprisingly denied the request. Fudge’s theory derived from the idea that if his appeal to the Commission had indeed nullified the City’s grant of the CDP, he had won. This is an argument of impressive agility, but little convincing force. The very fact Fudge is sufficiently aggrieved by the trial court’s dismissal of the case to bring this appeal (see Code Civ. Proc., § 902) militates against characterizing the result below as a victory. The court correctly denied attorney fees.”

Private Attorney General, Reasonableness Of Fees: Trial Judge’s Reduction Of Requested Appellate Fees From $630,000 To $140,000 Was No Abuse Of Discretion, Except For 40% Reduction Based On Calculating In Attorney’s Interest In Financial Recovery

Hourly Rates Were Too High For Sacramento Venue, Laffey Matrix Could Be Used, And Hours Property Reduced For Inflated Request.

           In Limon v. Dept. of Finance, Case No. C082501 (3d Dist. Feb. 11, 2019) (unpublished), as it often times does, the likely final fight involved the award of appellate fees to prevailing plaintiffs in an RV park residential dispute arising out of the “Great Dissolution” (the disbanding of California’s redevelopment agencies). They earlier had won a nice judgment and $800,000 in fees under California’s private attorney general statute, none of which was in dispute. Plaintiffs then moved to compel payment out of a redevelopment trust fund, a request was eventually affirmed on appeal. Plaintiffs then moved for more CCP § 1021.5 fees of $630,000 (inclusive of a 1.4 multiplier). The trial judge awarded about $140,000, making reductions for too high hourly rates, work deemed duplicative/inefficient, and a 40% reduction for the personal interest to both plaintiffs and their attorneys in connection with the earlier fees award (although the final math calculation was enhanced by a positive 1.2 multiplier).

            The Third District mainly affirmed, but it reversed the 40% reduction. Because Sacramento hourly rates are lower than L.A. rates, combined with the fact that Plaintiffs did not show that competent Sacramento attorneys were unavailable to them, the hourly rate reduction was in order. The trial judge also relied on the Laffey Matrix, adjusted for Sacramento cost of living differences, which was within his discretion. Reduction of work for inefficiencies/duplication was no abuse of discretion. The 1.2 multiplier was also fine. The only problem requiring a remand was the 40% reduction for attorney’s financial interest in the case, which conflated the requirement that only plaintiffs’ financial interests be considered.

Class Action, In The News: Class Attorneys In Chinese Drywall MDL Settlement Reap $111.4 Million

This Amount Awarded Even Though District Judge Chided Them For Vitriolic Fee Requests.

            We can report that a Louisiana federal district judge has given approval to a $111.4 million fees/expenses award to class counsel in the Chinese Drywall MDL litigation settlement, even though chiding class attorneys for “vitriolic” fee requests. If you want to know what attorneys got what, there is an article on Law360 today which can provide you that information.

Arbitration, Section 998: 2/2 DCA Affirms Denial Of All But $60 Post-Confirmation Award Filing Cost To Prevailing Arbitration Claimant

Rejected CCP § 998 Offer Did Not Change The Result, Because Claimant Did Not Ask Arbitrator To Cost Shift And Failed To Show Contractual Expenses Were Post-Offer In Nature.

            In Lipton & Margolin, APC v. Ko, Case No. B288038 (2d Dist., Div. 2 February 7, 2019) (unpublished), former law firm sued client for $39,455.45 on an unpaid receivable, prompting client to cross-claim for legal malpractice. The whole matter was referred to contractual arbitration. Nothing was awarded by the arbitrator except for $435 in filing costs for the firm to answer the malpractice complaint, with each side ordered to bear other fees and costs. Earlier, plaintiff/claimant had made a CCP § 998 offer to drop the cross-complaint and pay $1,800 in satisfaction of the receivable, an offer expiring without acceptance by the law firm. In the superior court post-confirmation award proceeding, plaintiff/claimant requested $15,161.66 in costs (mostly contractual arbitration expenses). The lower court confirmed the arbitration award, but it denied plaintiff’s costs request except for the $60 motion to confirm arbitration award fee.   Plaintiff appealed that denial.

            The 2/2 DCA upheld the costs denial. With respect to arbitration costs, they were not warranted because CCP § 1284.2 is the “pay your own freight” default rule unless the arbitration clause provides otherwise, and it did not in this case. Next, regarding superior court post-confirmation expenses, the trial judge did properly allow the $60 fee to plaintiff but any pre-arbitration judicial work needed to be presented to the arbitrator (as it was by the law firm). Finally, plaintiff’s argument that post-998 offer costs were justified (CCP § 998(c)(1)) was rejected because these were never presented to the arbitration for adjudication and plaintiff failed to show that these claimed costs actually were incurred after the 998 offer was made/then expired. (The appellate panel did cite Heimlich, which is being considered by the California Supreme Court, for the proposition that the section 998 costs-shifting nuance needs to be presented before the arbitrator in some way, at least after the merits arbitration award and before superior court confirmation efforts are undertaken. We note that Heimlich has been scheduled for argument before the California Supreme Court on March 5, 2019.)

Landlord/Tenant, Section 998, POOF!: Landlord And Tenant, In Lengthy Litigation Over Personal Property In A Westlake Village Luxury Home, Lose Both Their Attorney’s Fees Awards On Appeal

After Ten Years Of Litigation, Tenant Only Received A $56,000 Net Recovery—Not Exactly A Win When All Of The Attorney Efforts Are Considered!

            Christie v. Ridge, Case No. B259189 (2d Dist., Div. 6 February 6, 2019) (unpublished), although unpublished, is a nice reminder of how costly litigation is and how both litigants winning attorney’s fees can see it go away where there is no fee entitlement or a CCP § 998 offer is deemed invalid by the reviewing court.

            The underlying dispute was a brouhaha about the disposition of personal property left by a tenant after a landlord evicted tenant from a luxury home in Westlake Village. (The personal property was valued at $4 million, nice by our standards—we don’t have personal property of this nature.) After 7-10 years of litigation, tenant prevailed on negligence/conversions claims, and landlord prevailed on a breach of contract cross-claim. That resulted in dueling fee requests, producing fee awards in favor of each. The trial judge awarded $220,000 in fees to tenant and $533,225 in fees to landlord (with the fees to landlord stemming from rejection of certain CCP § 998 offers). Everything was appealed.

            Even after procedural dismissals, this appeal was “sour grapes” for both sides. The fee awards went POOF! and tenant only had a meager $56,000 net recovery after 10 years of litigation even though the trial judge originally found differently on net recovery. But, since we are a fee blog, we focus on the fee reversals.

            So, for tenant, the $220,00 fee award went away because no attorney’s fees are recoverable on a conversion claim. (Haines v. Parra, 193 Cal.App.3d 1553, 1559 (1987).) Although tenant argued that it was seeking fees under a claim brought under Civil Code section 1965(e)(3) (which does allow discretionary fees to a prevailing party in a case where a landlord wrongfully retains personal property), the problem here is that the judgment was not entered on this claim, but only on the conversion claim carrying no fee exposure. So, reversed.

            For landlord, the problem was that the landlord group’s section 998 offer was invalid. It conditioned the offer on a release of claims which were not part of the lawsuit, because the parties had 10 other litigations at issue elsewhere—an overbroad release which cannot be sustained under section 998.   So, reversed also. (BLOG OBSERVATION—The 2/6 DCA did suggest that Civil Code section 1542 waivers of known and unknown claims, even just related to the claims in the lawsuit, could be problematical language if not drafted with precision—so, beware when fashioning 998 offers!)

Prevailing Party, Substantiation Of Reasonableness Of Fees: Sibling Prevailing In Probate Dispute to Enforce Settlement Agreement Was Entitled To Fee Recovery Against Other Sibling

However, Prevailing Sibling’s Use Of Overly Redacted Billings Justified Reduction From Fee Request.

            In Levine v. Levine, Case No. B284749 (2d Dist., Div. 1 February 6, 2019) (unpublished), siblings in a probate dispute entered into a global settlement agreement. One sibling moved to enforce the settlement agreement, but the motion was denied. The settlement agreement had a fees clause, inspiring the winning sibling to move as the prevailing party for costs of $2,659.17 and attorney’s fees of $74,349.17. The sibling moving for fees and costs submitted heavily redacted fee billings. The lower court granted the motion, but it denied the requested costs and awarded reduced fees of $25,112.

            Both sides appealed, but nothing changed. Winning sibling did prevail because he took actions under the settlement agreement which were beneficial to the estate and belied the efforts to enforce the settlement agreement (especially given that the other sibling got sizeable distributions of an unusual nature before estate taxes were settled). However, the trial court’s award of reduced fees to prevailing sibling was justified; after all, he chose to not apportion costs between settlement agreement/trust administration activities and chose to submit redacted billings which made it equally hard to decipher what was compensable.

Undertaking: Prevailing Defendant On Appeal Entitled To Recovery Surety Bond/Letter Of Credit Premium Costs, With Trial Judge Determining That This Was A Reasonable Option

Defendant Does Not Have To Choose Best Option For Appealing Plaintiff, With Lost Opportunity Costs To Defendant Being A Factor To Consider.

            In Rostack Investments, Inc. v. Sabella, Case No. B286069 (2d Dist., Div. 8 Feb. 5, 2019) (published), plaintiff obtained a substantial summary judgment which was reversed on appeal, with the appellate court awarding defendant appellate costs as the prevailing party. She sought to recover $1.4 million in costs for obtaining a surety bond, secured by a letter of credit (LOC), pending appeal. (The total amount secured was around $77 million.) Plaintiff moved to tax the claimed costs as neither reasonable or necessary based on the premise that defendant could have obtained a cash-collateralized bond without the need for the LOC. Defendant presented counter-evidence that the surety bond was the best financial alternative for her, and she did not have that much cash. The trial court denied the motion to tax costs, and plaintiff appealed.

            The 2/8 DCA affirmed.

            Plaintiff first argued that the judgment awarding appellate costs was not a final, enforceable judgment, but this was swept away because it was—even though the trial court had to liquidate the amount which was awarded as costs by the appellate court. (Cal. Rules of Court, rule 8.278(c)(3); Lucky United Properties Investments, Inc. v. Lee, 185 Cal.App.4^th 125, 138 (2010).)

            On the merits, the trial court’s determination was no abuse of discretion. The option chosen by defendant, in these circumstances, does not have to be the option which would most benefit the plaintiff. Defendant did not have the cash and chose the less painful alternative. With respect to guiding precedent going forward, the appellate court recognized that the lost opportunity costs—that defendant could invest the $77 million rather than tie it up as cash collateral for the undertaking—was a factor which could be considered in this context. Here is what the panel said: “We believe that lost opportunity costs are an appropriate factor in determining the method used to bond the judgment. If lost opportunity costs are not considered at all, an appellant must choose the bonding alternative which will result in the lowest cost being passed on to the respondent (should the appellant be successful on appeal) even if that alternative results in a greater net financial loss to the appellant if the appeal is unsuccessful and the appellant must bear the costs itself. If ‘reasonable’ is to mean anything, it

must mean reasonable to the appellant under all of the circumstances. It is reasonable for the appellant to choose the method that is cost-effective based on its own financial situation; not to be forced to choose what might be best for the respondent.” (Slip Op. at pp. 16-17.)

Intellectual Property: Fifth Circuit Court Of Appeals Decides That Defense Not Entitled To “Prevailing Party” Status Under Federal Defend Trade Secrets Act Where Plaintiff Dismissed Federal Suit Without Prejudice And Refiled In State Court

18 U.S.C. § 1836(b)(3)(D) Fee-Shifting Statute Was At Issue.

            Dunster Live LLC v. Lonestar Logos Management Co., LLC, 908 F.3d 948 (5^th Cir. 2018) was a situation where a plaintiff filed a trade secret misappropriation suit in federal court under the Defend Trade Secrets Act (DTSA). After it lost an injunction, plaintiff moved to dismiss without prejudice so it could file in state court without the DTSA claim. The district court granted that request, and plaintiff did refile in state court. The defense then moved for recovery of over $600,000 in attorney’s fees under the “prevailing party” fees provision in the DTSA, 18 U.S.C. § 1836(b)(3)(D). The district court denied the motion, and the Fifth Circuit Court of Appeals affirmed.

            Section § 1836(b)(3)(D) provides that “[i]f a claim of the misappropriation is made in bad faith, which may be established by circumstantial evidence, a motion to terminate an injunction is made or opposed in bad faith, or the trade secret was willfully and maliciously misappropriated, [a court may] award reasonable attorney’s fees to the prevailing party.”  Much like the district court, the Fifth Circuit concluded that a dismissal without prejudice did not confer “prevailing party” status on the defense under the DTSA. It expressly rejected the argument that only a showing of “bad faith” by a plaintiff in filing a lawsuit sufficed. The Fifth Circuit reasoned that “[a]llowing bad faith alone to support a fee award would improperly read the concluding language of Section 1836(b)(3)(D) – ‘the prevailing party’ – out of the statute.”  This means a fee claimant under the DTSA must establish two things for success on its request: (1) that it is a prevailing party, and (2) the existence of one of the three qualifying scenarios specified in the provision itself.

Family Law: $7,500 Needs-Based And 217 Sanctions Awards To Ex-Husband Affirmed On Appeal

Lack Of Fee Hearing Reporters’ Transcripts Sealed The Correctness Of The Orders.

            The Third District, in Marriage of Samorano, Case Nos. C084143/C086540 (3d Dist. February 5, 2019) (unpublished), affirmed $7,500 in fees and sanctions awards in favor of ex-husband and against ex-wife under Family Code sections 2032 (needs-based provision) and 271 (sanctions provision). The main reason was that she did not provide any reporter transcripts of the fee hearings, so the orders were presumed correct. An inadequate appellate record sealed the deal.

Appealability, Private Attorney General: Where Trial Judge Only Struck Private Attorney General Entitlement Language Inserted In A Proposed Judgment, But Did Not Preclude A Further Fee Motion, Appeal Of The “Striking” Action Was Premature

There Was No Ruling To Be Appealed From.

            In Kottler v. City of Los Angeles, Case No. B278276 (2d Dist., Div. 1 February 4, 2019) (unpublished), next door neighbors successfully obtained mandamus over a zoning adjustment made in favor of another neighbor. Petitioners submitted a proposed judgment indicating that they were entitled to fees under the private attorney general statute, but the lower court had that language stricken from the judgment because the issue had not been teed up yet. However, nothing prevented petitioners from bringing a fee motion, with the parties stipulating that petitioners could seek fees later. Petitioners obviously thought the “strike out” was a denial of the fee entitlement request, but the appellate court said “no”—the trial judge had not ruled yet and did not preclude a future fee motion, such that there was nothing to be appealed from at this stage.

Family Law: Needs-Based Analysis Similar To That Under Family Code Section 2032 Used To Review Denial Of Fees To Mother Under Family Code Section 7605

Section 7605 Deals With Proceedings Involving Child Custody/Visitation.

            In Darab N. v. Olivera, Case No. B282972 (2d Dist., Div. 1 February 4, 2019) (published), child’s mother appealed denial of her request for $100,000 in attorney’s fees under Family Code section 7605 relating to her efforts to defend against motions to quash brought by father (which were granted). Section 7605 is a fee shifting provision in child custody/visitation proceedings. The appellate court decided that much of the analysis of Family Code section 2032, the needs-based statute, applies to section 7605, with the lower court properly looking at the requesting party’s litigation tactics and whether claimed fees truly related to the appropriate proceedings. Section 6344 did allow fee shifting to a successful party in a DVRO proceeding, but mother lost in that phase. With respect to other fees, the lower court properly concluded that they were not reasonably incurred due to mother’s unreasonable litigation tactics and her failure to apportion them to potentially compensable work.

Special Fee Shifting Statute: Lower Court Properly Denied Attorney’s Fees To Prevailing Doctor In Staff Privilege Suspension/Termination Case Against Hospital Because Hospital’s Defense Was Not Completely Frivolous In Nature

Business and Professions Code Section 809.9 Was The Fee Shifting Statute.

            In Economy v. Sutter East Bay Hospitals, Case Nos. A150211 et al. (1^st Dist., Div. 4 February 4, 2019) (published), defendants hospital were found to have improperly suspended/terminated a physician without a proper hearing under Business and Professions Code section 809 et seq, with the trial court awarding doctor $3.867 million in damages but denying the physician an award of attorney’s fees under section 809.9, which requires a mandatory award of fees to the “substantially prevailing party” if the hospital’s conduct in defending or litigating the case was “frivolous, unreasonable, without foundation, or in bad faith” (with frivolousness judged objectively and bad faith judged subjectively). The appellate court affirmed the denial of fees, finding that the lower court correctly concluded that hospital’s defense was not completely lacking in merit and there was tenability in the argument that hospital’s actions did not have to be reported (although ultimately failing on the merits).

Family Law: Family Code Section 3111(b) Justified $50,000 Sanctions Against Attorney, But Not Client, For Disclosing Confidential Child Custody Evaluation Report

2/6 DCA Remembers That Attorneys Are Both Zealous Advocates And Officers Of The Court.

            Presiding Justice Gilbert, in Marriage of Anka & Yeager, Case No. B281760 (2d Dist., Div. 6 February 4, 2019) (published), reminds licensed attorneys that we are both zealous advocates and officers of the court. The appellate court affirmed a trial judge’s imposition of $50,000 in sanctions against an attorney for disclosing information in a confidential child custody evaluation report. Family Code section 3111(b) does allow the family law court authority to impose such sanctions for a violation of section 3025.5. However, because nothing showed that the client directed the disclosure, the joint and several award against client was reversed.

Sanctions: CCP § 128.7 Sanctions Award Reversed Because Disputed Factual Issues Does Not Mean The Litigation Was Frivolous

$3,500 Sanctions Award Was At Issue.

            Justice Bendix, the author of Osborn v. Saucedo, Case No. B283605 (2d Dist., Div. 1 Feb. 1, 2019) (unpublished), reminds trial judges that litigation is not frivolous where there are disputed issues of fact even if they might be somewhat slim in nature. A $3,500 sanctions award under CCP § 128.7 was reversed because the dispute involved an oral agreement relating to tenant removal of fixtures separate from the written lease provisions. The disputed facts in such a scenario showed that the litigation was not frivolous in nature even though plaintiff lost.

Civil Rights, Multiplier: FEHA Plaintiff’s Appeal Of A Reduced Fee Award Did Not Result In Any Change

Hourly Rates Were Too High, Case Was Overprepared, And Limited Success Before The Jury Supported Lower Court’s Reduced Award.

            FEHA plaintiff in Check v. Raley’s, Case No. A153906 (1^st Dist., Div. 1 Jan. 31, 2019) (unpublished) won $119,211 on some claims, later requesting the trial court to award her $1,109,107 in fees. The lower court found reasons to not honor the request, awarding instead $449,602 and denying a positive multiplier request in the process.

            The appellate court affirmed the reduced fee award. The hourly rates claimed were too high for Sonoma County, a venue with lower rates than other Bay Area locales. The lower court’s 20% overall reduction was in order given its finding that the matter was overprepared by plaintiff’s counsel and involved duplicative attorney work. Finally, a multiplier was properly rejected because the matter was not complex, it was overprepared, and plaintiff had limited success (factors which combined to outweigh the contingency risk factor often leading to the application of a positive enhancement).

Private Attorney General: CEQA Plaintiffs Obtaining Mandamus To Require Preparation Of An EIR Entitled Them To An Award Of CCP § 1021.5 Fees

Public Benefit Was Clear When CEQA Policies Were Vindicated.

            In Oakdale Groundwater Alliance v. Oakdale Irrig. Dist., Case No. F077281 (5^th Dist. Jan. 31, 2019) (unpublished), CEQA plaintiffs obtained mandamus requiring that District prepare a full-blown environmental impact report (EIR), rather than just a negative declaration, and prepare a better study on the environmental impacts of a water project. The trial judge awarded attorney’s fees to District under the private attorney general statute. That award was upheld on appeal. A significant benefit was achieved by plaintiffs in vindicating CEQA policies, especially the need for an EIR. Private enforcement was necessary because the District did not want to prepare an EIR. Even if the financial benefits to plaintiffs exceeded the litigations costs, the public benefit conferred by plaintiffs’ actions can actually override a strict cost/benefit analysis.

Ethics, Retainer Agreements: On Remand, Trial Court Properly Found Equitable Estoppel Did Not Alter The Rule Invalidating Fee Sharing Among Attorneys

Equitable Estoppel Theory Was Not Supported By The Evidence.

            On December 19, 2012, we posted on Barnes, Crosby, Fitzgerald & Zeman, LLP v. Ringler, 212 Cal.App.4^th 172 (2012) [discussed in our December 19, 2012 post], which held that a party may be equitably estopped from enforcing the rule which prohibits attorney fee splitting where one party prevented the other from obtaining the necessary written consent from a client. The matter was remanded for a trial on this narrow issue. We can now report the trial judge, on remand, found no proof supported the equitable estoppel exception. The 4/3 DCA, in Barnes, Crosby, Fitzgerald & Zeman, LLP v. Ringler, Case No. G053966 (4^th Dist., Div. 3 Jan. 31, 2019) (unpublished), affirmed the trial court’s determination, because the evidence did not support that the class representative was swapped out for improper purposes (the basis for equitable estoppel) and the proof actually showed that the party claiming estoppel was the one preventing the required disclosure. Justice Ikola authored the 3-0 opinion.

Judgment Enforcement: Lower Court Properly Denied Judgment Debtor’s Motion To Compel Full Satisfaction Acknowledgment From One Of Several Judgment Creditors After Payoff Of Only One Judgment Creditor

However, Judgment Creditor’s Acceptance Of Payoff Check Cut Off Further Postjudgment Fees, Even Though Other Judgment Creditors Were Not Paid Off.

            Roe v. Ma, Case No. A150320 (1st Dist., Div. 3 Jan. 31, 2019) (unpublished) is a situation where a judgment debtor having four judgment creditors under a prior integrated judgment decided to satisfy one judgment creditor with the hopes to get rid of a judgment lien on the debtor’s real estate. She did a full cashier’s check payoff to the one creditor, requesting a full acknowledgment of satisfaction. The creditor refused, only recording a partial satisfaction, and the trial judge refused to compel a broader satisfaction acknowledgment. Creditor then moved to recoup judgment enforcement fees, with the trial judge awarding him a little over half and no costs. Debtor appealed both orders, and creditor cross-appealed from the fee reduction.

            The 1/3 DCA affirmed the denial of the motion to compel satisfaction, but it reversed the fee award and dismissed the cross-appeal.

            The denial of the motion to compel acknowledgment of satisfaction was correct because only a partial satisfaction was required; otherwise, a full satisfaction would have impacted the rights of the unpaid, other judgment creditors because the broader satisfaction recording would have extinguished the entire judgment lien which also benefited the other creditors. However, the fee award went away because creditor’s acceptance of the payoff prevented any further postjudgment fee collection efforts, in line with the reasoning of Gray1 CPB, LLC v. SCC Acquisition, Inc., 233 Cal.App.4^th 882 (2015) [discussed in our January 28, 2015 post]. The appellate court also rejected the contention that the unpaid status of the other judgment creditors meant that judgment debtor was still subject to the one judgment creditor’s post-satisfaction fee request. The reversal of the fee award further mooted the cross-appeal, which was dismissed.

SLAPP: Appellate Court Does Not Determine If SLAPP Motion Itself Is Frivolous, Because That Is The Trial Court’s Job

SLAPP Denial Reversed And No Appellate Sanctions Were Warranted.

            This next case involves a lawsuit brought by Glenn Symmonds, a drummer who was terminated by Edward Joseph Mahoney, aka Eddie Money, a singer and songwriter who performs in concerts across the country. Symmonds sued Eddie and his entertainment company, prompting a SLAPP motion which was denied. The 2/1 DCA, in Symmonds v. Mahoney, Case No. B283529 (2d Dist., Div. 1 Feb. 1, 2019) (published), reversed because the protected conduct prong was met and the lower court then had to proceed to an examination of the merits prong. Symmonds asked the appellate court to find that the SLAPP motion itself was frivolous, but that request was rejected because no authority was presented (given that this is the trial judge’s job). Symmonds also asked for appellate sanctions, but the reversal mooted it anyway, and such a request was procedurally improper given that it must be accomplished through a separate motion (not just a request in a respondent’s brief).

Tort Of Another: $794,379 In Tort Of Another Fees Awarded To Seller And Against Dual Agent/Agent’s Broker Was Reversed As A Matter Of Law

Tort Of Another Claim Had Been Stricken Earlier By A Different Judge And There Was No Indication Seller Actually Incurred Any Fees To Her Attorneys.

            Boykin v. He, Case No. A149020 (1^st Dist., Div. 2, January 31, 2019) (unpublished), was a very convoluted case considered on appeal by the First District, Division 2, in which a jury had determined that a buyer would be awarded specific performance in a residential sale transaction and that seller, who brought a cross-complaint against a dual agent and affiliated broker, should be awarded $350,021 if seller had to transfer the house to buyer or $17,500 if seller kept the house. The judge presiding over the trial then allowed seller to keep the house, as well as awarding her $350,021 and imposing tort of another fees against the agent and broker to the tune of $794,379 (inclusive of a multiplier), even though an earlier, different judge had stricken the tort of another claim from a case. Agent and broker were shocked, appealing.

            Good thing they did. The 1/2 DCA determined that only $17,500 was the proper damage award to seller because she kept the house, in line with what the jury said (not what the trial judge did). Because tort of another fees are damages (not classic fees claimed generally through a postjudgment motion), they were improperly awarded because the earlier judge had stricken them from the case—and a second judge cannot overrule what a first judge did. Tort of another fees have to be pled and proven, and they had been excised from the case. Beyond that, there was no proof that seller actually incurred any fees with respect to her attorneys. The appellate court firmly believed the trial judge acted inconsistently from the jury’s verdict and essentially overturned what a prior judge had done.