CALIFORNIA ATTORNEY'S FEES

Special Fee Shifting Statute: $8,993.75 Fee Award In Dismissed Civil Harassment Restraining Order Proceeding Was Affirmed On Appeal As No Abuse Of Discretion

$13,051.75 Request Was Pared Down By The Lower Court.

            In Schumann v. Maxon, Case No. G061230 (4^th Dist., Div. 3 Mar. 21, 2023) (unpublished), plaintiff filed a civil harassment restraining order against her upstairs neighbor and neighbor’s attorney even though she voluntarily dismissed the matter.  Primary defendant, prevailing party, moved to recover discretionary fees under CCP § 527.6(s).  She sought $13,051.75 in total, but the lower court issued a fee order for $8,993.75, reduced for (1) multiple attorney internal conferences; (2) redacted billing entries; (3) vague entries; and (4) an excessive “fees on fees” request for bringing the attorney’s fees motion.

            Our local 4/3 DCA affirmed, in an opinion authored by Presiding Justice O’Leary.  The primary argument was that a fee award was not justified because plaintiff’s conduct was “in good faith,” but the Court of Appeal determined that the conduct of the parties did not matter as far as awarding fees under section 527.6.  (Krug v. Maschmeter, 172 Cal.App.4^th 796, 803 (2009).)  Also, the appellate court found that plaintiff never filed a fees motion with respect to her belief that she achieved her litigation objectives and that there was an admission in her appellate briefing which further supported the result on appeal.  When it came to the amount of the award, no detailed calculations needed to be made, which is the law in California for now unless there is a swing to federal courts requiring more specification. 

Deeds Of Trust, Fee Clause Interpretation, Indemnity: After Paying Off Loan Demand, Non-Prevailing Borrower On Economic Duress/Implied Covenant Claims Correctly Assessed With Contractual Fees Of $2,856,956.82 And Costs Of $38,184.54

Contractual Clauses, Including One In A Deed Of Trust, Were Fee Provisions.

            Modern litigation can be expensive.  It can even be more expensive where there is a fee-shifting basis in contractual documents.  Borrower learned that hard lesson in The Palace at Washington Square, LLC v. Mechanics Bank, Case Nos. A164195/A164799 (1^st Dist., Div. 3 Mar. 17, 2023) (unpublished).

            After honoring a loan payoff demand, borrower sued lender for economic duress and breach of the implied covenant of good faith and fair dealing.  Borrower lost those claims, with the referee later awarding lender $2,856,956.82 in attorney’s fees and $38,184.54 in costs under various promissory note, loan agreement, and deed of trust provisions.  Borrower’s appeal did not change the result.

            The trust deed provision entitled “Indemnification” did cover third-party exposure, but also had broad language showing that it also applied to actions between borrower and lender involving the loan documents and deed of trust.  That took it outside case law (see our category “Indemnity”) where only a third-party indemnity clause was involved.  (Baldwin Builders v. Coast Plastering Corp., 125 Cal.App.4^th 1339, 1344-1345 (2005); Continental Heller Corp. v. Amtech Mechanical Services, Inc., 53 Cal.App.4^th 500, 508 (1997).) 

            Then, borrower argued that the deed of trust did not allow for a fees award because, based on opinions such as Hart v. Clear Recon. Corp., 27 Cal.App.5^th 322, 325, 327 (2018) and Chacker v. JPMorgan Chase Bank, N.A., 27 Cal.App.5^th 351, 356-358 (2018), the fees were to be added instead to the debt secured by the deed of trust.  The appellate panel disagreed, because there was no such language in the deed of trust, bolstered by a further provision indicated that borrower’s obligations survived repayment of the secured obligations and satisfaction of the deed of trust.

Ethics: Trial Judge Properly Excluded Expert Testimony On Ethic Legal Conclusions

Application Of Law To Facts Is Not One For Experts To Opine On.

            In Timed Out LLC v. Prisma Entertainment LLC, Case No. B309791 (2d Dist., Div. 3 Mar. 16, 2023) (unpublished), a litigant opposing a fee request proffered attorney declarations opining that no fees should be awarded because the prevailing party’s attorneys violated various California ethical provisions.  The lower court sustained objections that the testimony offered legal conclusions which was the province of the lower court to decide.  The appellate court agreed.  Legal conclusions in the guise of expert opinion testimony are most always improper.  (Summer v. A.L. Gilbert Co., 69 Cal.App.4^th 1155, 1179 (1999).)

Equity, Fee Clause Interpretation: Prevailing Party Awarded Substantial Fees Despite A Bad Typo In The Contractual Fees Provision

Prevailing Party Did Obtain $538,961 In Fees After Reformation By Trial Judge, Affirmed On Appeal.

            We bloggers have seen this situation before.  A litigant, like the one in California Décor, Inc. v. Medrano, Case No. B313743 (2d Dist., Div. 2 Mar. 15, 2023) (unpublished), prevailed on its own case and defeated a cross-complaint.  So, that naturally took everyone to attorney’s fees recovery, given there was a contractual fees clause allowing fee shifting.  However, here is the language in the clause: “In the event of a dispute between Landlord and Tenant, any and all attorney fees shall be paid by [sic] the prevailing party.”  Losing party argued that prevailing party could not recover fees based on the “by” language, but the trial and appellate courts did not buy it after the lower court used equitable powers to reform the clause to change the language to “to”—fees shall be paid to the prevailing party.  After all, most contractual fees clauses do not penalize a prevailing party by having to pay the fees of an unsuccessful party.

THERE IS A LESSON HERE FOR CONTRACT DRAFTERS—PROOF YOUR DOCUMENTS TO MAKE SURE THEY MAKE SENSE.

Lodestar, Multipliers, Reasonableness Of Fees: Plaintiff Properly Awarded $30,450 In Attorney’s Fees Rather Than The “Ask” Of $98,770

Fee Request Reduced On Hourly Rate Ask And Work On An Unfiled Summary Judgment Motion, With Plaintiff’s Multiplier Request Being Denied.

            Plaintiff accepted a defense CCP § 998 offer waiving a car purchase deficiency and paying her $2,001, with the lower court allowed to determine an award of attorney’s fees and costs to plaintiff via a motion.  She moved for $98,770 in fees (inclusive of a 1.5 positive multiplier), but the lower court only awarded $30,450.  She appealed in First Technology Federal Credit Union v. Trojan, Case No. H049919 (6^th Dist. Mar. 10, 2023) (unpublished).

            She did not obtain anything better on appeal, especially given that the lack of a reporter’s transcript of the fee hearing hampered review.  The lower court properly reduced the requested hourly rates by Santa Clara attorneys, because those rates were too high for the type of work which would be charged by attorneys in Monterey (the case venue).  There is a nice discussion of the degree of specificity that a fee claimant needs to show for purposes of justifying retention of an out-of-venue attorney charging higher rates, given that the lower court implicitly found plaintiff’s showing on this issue to be deficient.  The trial judge further did not err in reducing the fee request for work expended on a summary judgment motion that was never filed—with the appellate court locating no authority indicating that such unused work had to be compensated.  Finally, even though the case was taken on contingency, this alone does not mandate a positive multiplier, with the lower court’s determination that the case was relatively uncomplicated in nature.

Costs: Defendant’s Failure To File A Verified Memorandum Of Costs, After Being Given Extra Time By The Court, Precluded Recovery Of Costs

Lower Court Also Granted Plaintiff CCP § 473 Relief From A Late-Filed Motion To Tax Costs, But No Costs Could Be Recovered Given Plaintiff’s Waiver By Failing To File A Costs Memo.

            The procedural events in Cielo Homeowners Assn. v. Bennett, Case No. D079743 (4^th Dist., Div. 1 Mar. 10, 2023) (unpublished) were, to say the least, bizarre.  In the end, a plaintiff’s failure to file a verified memorandum of costs on appeal was dispositive.

            Plaintiff won a reversal of a judgment earlier, with the appellate court awarding her costs on appeal.  Plaintiff’s husband, a non-party, served a memorandum of costs on appeal never signed by plaintiff, and he apparently never filed the costs memo.  Defendant filed a motion to tax costs, but admittedly filed it three days late, asking for CCP § 473 relief from the lower court.  A lower court order directed plaintiff to file a verified memorandum of costs on appeal to a date certain, which she did not do.  She did not appear at the hearing on the motion to tax costs, which was granted after the lower court granted the § 473 relief sought by defendant.

            The appellate court sustained the denial of the motion to tax costs.  Granting the 473 relief was warranted; but, in any event, plaintiff’s failure to file a costs memorandum meant there were no costs to strike or tax anyway.  The ultimate result was affirmed on appeal.

Celebrities, SLAPP: $493,135 In SLAPP Fees And Costs Awarded To Phoebe Bridgers For Winning A SLAPP Motion In A Defamation Case Brought Against Her

The Request Was $670,510 In Fees And Costs.

            Phoebe Bridgers, an indie folk music songwriter-singer, was sued for defamation by music producer Chris Nelson in Los Angeles County Superior Court.  Earlier, she won a SLAPP motion, which allows for imposition of mandatory reasonable attorney’s fees and costs against the non-prevailing plaintiff.  She moved for fees and costs of $670,510, with Judge Curtis A. Kin on March 9, 2023 awarding her the reduced amount of $493,135.  Goes to show you that SLAPP victories can carry a high price tag for the unsuccessful litigant. 

Fee Clause Interpretation: Plaintiff Purchaser Obtaining Specific Performance In A Real Estate Transaction Properly Awarded Fees Under A Contractual Fees Provision Against Losing Seller

Closing Costs Provision Was Distinct From Litigation Prevailing Party Provision.

            The next case, Classic Auto Repair, Inc. v. Ida, Case No. B308002 (2d Dist., Div. 8 Mar. 8, 2023) (unpublished) is a real estate primer on contractual interpretation on allocation of attorney’s fees exposure with respect to litigation and closing costs.  The plaintiff purchaser won attorney’s fees in a specific performance action under a contractual fees clause, with the losing party arguing that a different “closing costs” provision prevented a fee award because both parties agreed to bear their own fees as far as closing.

            The appellate court did not buy appellant’s argument.  The paragraph relied on by appellant only applied to closing fees, while a different paragraph did allow for recovery of fees incurred in court proceedings.  In reaching this conclusion, because co-contributor Mike is a real estate transactional attorney among other practice areas and always searches for appellate insights into transactional documents, the appellate panel observed that headings and titles can provide insight into the parties’ intent—with the operative provision entitled “Attorneys’ Fees” and the inapt provision entitled “Closing Costs.”

Family Law: Although Family Code Section 271 Sanctions Were Justified, The Lower Court’s Sanction Award Was Reduced On Appeal

The Reduction Was Tethered To The Misconduct At Issue.

            In Marriage of Dolkhani & Izadpanahi, Case No. B317763 (2d Dist., Div. 7 Mar. 8, 2023) (unpublished), the lower court awarded Family Code section 271 sanctions (attorney’s fees) of $11,605 based on a dissolution litigant’s failure to cooperate in the preparation of a proposed judgment to resolve property issues.  The appellate court did not view the award as an abuse of discretion, but it reduced the award on appeal to $6,605 for fees tethered to the identified misconduct.  This is a reminder that section 271 fees, awarded as a sanction, do have to be causally linked to the underlying conduct for which sanctions are imposed.  If not, the appellate court can and will reduce the sanctions award as was done in this case.

Probate: Trustee Defending Against Invalidity and Undue Influence Claims By A Beneficiary Was Not Entitled To Attorney’s Fees Reimbursement

Trustee Had To Stay Neutral, Not Taking the Position Of One Beneficiary Or The Other In Non-Neutral Fashion.

            In Zahnleuter v. Mueller, Case No. C093909 (3d Dist. Mar. 7, 2023 published, originally issued as an unpublished opinion on Feb. 9, 2023), a trustee sought reimbursement for attorney’s fees in defending the validity of a third amendment to a trust and undue influence claims by certain beneficiaries from the trust (trustee had to bear the entire $201,164.15 in fees, surcharged against his interest in trust assets).  The lower court denied the fees, deciding that the dispute relating to the third amendment was not allowed as reimbursable under the trust documents and was not allowable because trustee was taking a non-neutral position by representing one beneficiary’s position in relation to the third amendment over the position vis-à-vis other beneficiaries.

            The Third District affirmed.  The trustee’s fee expenditures did not benefit the trust, rather than the trustee as far as taking sides with a beneficiary as far as the third amendment was concerned.  In that regard, the trustee must look to the beneficiary whose interest the trustee is vetting to recover fees.  (Whittlesey v. Atello, 104 Cal.App.th 1221, 1227-1231 (2002); Terry v. Conlan. 131 Cal.App.4^th 1445, 1462-1464 (2005).)  The main controversy was not a challenge to the existence of the trust, but who would control and benefit from it.  Trustee was not being neutral in the dispute, bolstered by the fact the third amendment itself indicated that the trustee was not authorized to defend the third amendment at the expense of the trust estate. 

Costs, Prevailing Party, Private Attorney General, Section 998, Trespass: Prevailing Defendant/Cross-Complainant Obtains Attorney’s Fees Under Trespass Fee Shifting Statute Despite Receiving Nominal Damages And Also Receives Routine Costs

Losing Plaintiff/Cross-Defendant Denied Private Attorney General Fee Request In Opinion With Several Cross-Over Issues. 

            Direct Action Everywhere SF Bay Area etc. v. Diestel Turkey Ranch, Case No. A162702 (1^st Dist., Div. 2 Mar. 1, 2023) (unpublished) is an opinion with many cross-over issues as identified in our main title to this post.

            In this one, plaintiff sued defendant for alleged false advertising and unfair competition violations, with defendant cross-complaining against plaintiff, as a cross-defendant, for trespass, conversion, and unfair competition.  Defendant won on both suits after an 8-day bench trial.  The lower court also determined that defendant was the prevailing party, awarding defendant/cross-complainant routine costs of $68,734.37 minus $4,950 in mediator expenses and $72,848.25 in attorney’s fees under CCP § 1021.9 (the trespass fee-shifting statute).  The lower court denied plaintiff’s request for $1,541,000 in private attorney general fees under CCP § 1021.5. 

            On appeal, the costs and fee rulings were all affirmed.  Plaintiff argued that nominal damages will not support a trespass fees award (citing treatises to that effect), but the appellate court disagreed:  “section 1021.9 does not delineate between the type of damages awarded in a trespass action, but rather states that a party ‘shall be’ entitled to its fees and costs when it prevails in an action for damages to its personal or real property resulting from trespass.”  In this case, the lower court determined that plaintiff trespassed six times resulting in the loss of two turkeys such that tangible damages did occur, awarding $8.00 in damages and a permanent injunction.  That sufficed for 1021.9 purposes:  cross-complainant suffered tangible harm even though cross-complainant failed to adduce proof of the trespass loss.  Plaintiff argued fees were unwarranted because this could have been brought as a small claims or a limited case (citing Chavez, our Leading Case #13), but that argument failed because a case praying for a permanent injunction must be brought as an unlimited matter.  Plaintiff ended by contending that cross-complainant did not beat its CCP § 998 offer, but that lacked merit because cross-complainant’s pre-offer costs well exceeded the offer on the cross-complaint and plaintiff’s 998 offer only offered a temporal permanent injunction versus the unlimited permanent injunction obtained by cross-complainant.

            With respect to plaintiff’s 1021.5 request, that was dispatched because plaintiff was not successful and was no catalyst for any changes.

            On the routine costs side, the lower court’s rulings were correct, reminding litigants and practitioners that court reporter costs are recoverable (even if the transcript costs are not) and deposition costs for witnesses not testifying at trial are allowable in the lower court’s discretion.

Arbitration: Arbitration Fee Clause Saying That Both Sides Bear Their Own Fees, Subject To Reallocation By Arbitrator, Did Aid Substantive Unconscionability Determinations By Trial And Appellate Courts

CLRA Claims Require Bad Faith Prosecution To Award Prevailing Party Fees To Defendants, With The Clause Not Covering This Eventuality.

            Gostev v. Skillz Platform, Inc., Case No. A164407 (1^st Dist., Div. 2 Feb. 28, 2023) (published) is a must read for litigants and their attorneys on the enforceability of delegation and other arbitration damage/statute of limitation restrictions in an arbitration clause.  The conclusion in this opinion was that the arbitration clause was unconscionable, with transactional attorneys benefiting from the reasoning in Gostev.

            The arbitration clause had this fees provision: “Each party shall bear its own attorneys’ fees, costs and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the arbitrator and AAA; however, the arbitrator may award to the prevailing party reimbursement of its reasonable attorneys’ fees and costs (including, for example, expert witness fees and travel expenses), and/or the fees and costs of the arbitrator.”

            Among other aspects of the arbitration clause which rendered it substantively unconscionable, the fees clause was too generic (Newton v. American Debt Services, Inc., 854 F. Supp.2d 712, 725 (N.D. Cal. 2012)), not recognizing that fees under California’s Consumer Legal Remedies Act are not awardable to a prevailing defendant unless plaintiff’s case was found not to have been prosecuted in good faith.  This infirmity in the fees clause, along with other factors, cemented the conclusion that the arbitration clause was unconscionable. 

Employment: On Remand, Appellate Court Determines That Employer Did Not Bear Penalties Or Fee Exposure Under Labor Code Section 226 Because Failure To Pay For Meal/Rest Breaks And Failure To Report Same On Wage Statements Was Not Intentional

Employers May Be Happy With Many Aspects Of This Opinion.

            We have posted already on Naranjo v. Spectrum Security Services, Inc., 13 Cal.5^th 93, 102 (see our December 18, 2022 post on top 2022 decisions), which determined that meal/rest break premium charges and failure to report on wage statements could give rise to fee exposure under various Labor Code sections.  On remand, in Naranjo v. Spectrum Security Services, Inc., Case No. B256232 (2d Dist., Div. 4 Feb. 27, 2023) (published, opinion on remand from the California Supreme Court), employers may sigh a little more of a relief.  The appellate court determined that Labor Code section 226 violations, the gist of the remand issues on appeal, only allowed penalties and attorney’s fees if the employer violations were intentional in nature.  Under the record on appeal and after supplemental briefing by the parties, the 2/4 DCA determined employer had good faith defenses, such that the penalties and fees were not recoverable under an “intentional” standard.

POOF!: $737,932.84 Private Attorney General Fee Award Goes Away When Appellate Court Reverses As A Matter Of Law Favorable Determinations In Contentious Public Treatment Wastewater Permits Dispute

Goes To Show You How Fortunes Can Change.

            Los Angeles Waterkeeper v. State Water Resources Control Board, Case No. B309151 (2d Dist., Div. 1 Feb. 27, 2023) (published) is a situation where plaintiff was awarded CCP § 1021.5 fees of $737,932.84 in a contentious public treatment wastewater permit dispute where plaintiff won on a general theory that the State Water Board had a general duty to prevent the unreasonable use of water.   The appellate court disagreed as a matter of law, reversing on the merits so that the fee award went POOF! also. 

Judgment Enforcement: Judgment Creditor Properly Awarded Attorney’s Fees For Pursuing A Wage Garnishment Order Against Ex-Husband For A Community Debt Judgment Against A Wife

No Conspiracy Between A Judgment Debtor And Relevant Third Party Is Required.

            Code of Civil Procedure section 685.040 authorizes a trial court to award reasonable and necessary costs of enforcing a judgment to the judgment creditor, if (1) the fees were incurred to “enforce” a judgment, and (2) the underlying judgment included an award of fees pursuant to specific provisions of the CCP (such as provisions which are allowed by contract, statute, or law, most frequently Civil Code section 1717). 

            In Direct Capital Corp. v. Brooks, Case No. C095817 (3d Dist. Feb. 27, 2023) (unpublished), DCC leased computer equipment to wife Mary Brooks, who was married to Grant Brooks at the time.  DCC obtained a judgment against Mary while the marriage was intact, then attempted to garnish Grant’s wages on the theory the debt was a community obligation.  Both the trial and appellate courts agreed in several proceedings and two prior appeals.  DCC then sought over $67,000 in attorney’s fees against Grant, fees for the wage garnishment efforts and in defending the two appeals.  The trial judge awarded some fees to the DCC for the garnishment efforts, but no fees for defending the appeals.  Grant appealed.

            His principal argument was that, under Cardinale v. Miller, 222 Cal.App.4^th 1020 (2014), no section 685.040 fees were recoverable because there was no conspiracy between the judgment debtor and relevant third party.  The Third District recognized that there was a conspiracy in Cardinale, but rejected the argument that a conspiracy is a prerequisite to imposition of section 685.040 fees against a third party such as Grant.  DCC satisfied the two parts of the 685.040 test, such that this alone sufficed—with Grant erroneously conflating Cardinale’s application of the 685.040 two-part test with the test itself. 

Cases Under Review: Discovery Sanctions And Arbitration Unconscionability Cases Are Pending For Resolution By The California Supreme Court

These Are The Two Civil Cases With Fee Issues Currently Pending Before The State Supreme  Court; Plus We Update Our Year End 2022 Review Of K.M. v. Grossmont Union High School Dist. Decision.

• • On October 27, 2022, Shanna did a nice post on a lengthy discovery sanctions case.  That matter was accepted for review and presents the following issues for resolution--City of Los Angeles v. PricewaterhouseCoopers, LLC, S277211. (B310118; 84 Cal.App.5th 466; Los Angeles County Superior Court; BC574690.) Petition for review after the Court of Appeal reversed an order in a civil action. This case presents the following issue: Is a court’s authority to impose monetary sanctions for misuse of the discovery process limited to circumstances expressly delineated in a method-specific provision of the Civil Discovery Act, or do courts have independent authority to impose monetary sanctions for such discovery misconduct, including under Code of Civil Procedure sections 2023.010 and 2023.030?
  • On January 16, 2023, we indicated that review had been granted in an arbitration unconscionability opinion which presented the follow issue:  Ramirez v. Charter Communications, Inc., S273802. (B309408; 75 Cal.App.5th 365; Los Angeles County Superior Court; 20STCV25987.) Petition for review after the Court of Appeal affirmed an order denying a petition to compel arbitration in a civil action. This case includes the following issues: Did the Court of Appeal err in holding that a provision of an arbitration agreement allowing for recovery of interim attorney’s fees after a successful motion to compel arbitration, was so substantively unconscionable that it rendered the arbitration agreement unenforceable?
  • In our year end 2022 review, we noted that K.M. v. Grossmont Union High School Dist., 85 Cal.App.5^th 717 (2022) had a petition for review pending for determination with the California Supreme Court.  We can now report that a settlement was reached, and an order was entered on February 15, 2023 granting petitioner’s unopposed request to withdraw the petition for review.  Does this impact publication of the decision?  We see no clear answer, but likely it does not because CRC 8.526 provides that the supreme court’s dismissal of a petition for review does not impact its publication unless the high court orders otherwise.  The docket does not reflect that the opinion was depublished, with the opinion strongly indicating that a CCP § 998 offeror should attach a copy of a desired settlement agreement so the offeree is clear on the terms of the 998 offer.

Family Law: $13,000 Monthly Permanent Spousal Support Order And $175,000 Fees Order Under Needs-Based/Section 271 Grounds Reversed Where Lower Court Failed To Consider Totality Of Ex-Husband’s Ability To Pay Factors

Reversal of Spousal Support Order Parlayed Into Reversal Of Fees Order.

            In Kuo v. Liu, Case No. A164928 (1^st Dist., Div. 2 Feb. 21, 2023) (unpublished), ex-husband was hit with a $13,000 monthly permanent spousal support payments and a $175,000 fees award to ex-wife under the needs-based Family Code provisions and Family Code section 271.

            Those awards got reversed on appeal.  The problems with the spousal support awards, which also infected the fee award, were two-fold in nature:  (1) the support award was based on stale numbers 8 years earlier; and (2) the gifts and loans by ex-husband’s parents were not shown to be recurrent or continuing in nature.  The fee award by the lower court was not nuanced enough on ex-husband’s ability to pay—a key factor under Family Code section 2030, 2032, and 271—given he was living paycheck by paycheck at the time of the award, his parents’ funding had dried up, and ex-wife obtained significant loans from her parents to fund her dissolution efforts. 

Appealability, Discovery: Discovery Sanctions Against Client’s Attorney For Client’s Failure To Appear At A Deposition Reversed

Nothing In The Statute Shows That Sanctions Are Allowable Against Client’s Attorney.

            Castillo v. McCreary, Case No. B317493 (2d Dist., Div. 3 Feb. 21, 2023) (unpublished) is an interesting unpublished decision on an appealability issue and on whether discovery sanctions can be visited on a client’s attorney for his client’s failure to appear for a deposition, with a lower court imposing sanctions against client’s attorney. 

            On the appealability issue, the technical issue was whether a clerk’s certificate of mailing, which was file-endorsed but attaching a minute order which was not, constituted a minute order which was appealable under the more restrictive 60-day appeal limitation.  The appellate court, although sympathetic that an order like this might qualify, applied Alan v. American Honda Motor Co., Inc., 40 Cal.4^th 894, 905 (2007) conservatively so that the appeal could go forward.

            With that said, attorney won on the merits, because de novo review was required vis-a-vis the germane Discovery Act statute.  Nothing in Code of Civil Procedure section 2025.450(g)(1) authorized monetary sanctions against client’s attorney for his client’s failure to appear at the deposition.  So, the sanctions award against the attorney was reversed.

Deadlines: Where Motion To Compel Arbitration, Based On Accompanying Declarations, Had A Fee Request, It Authorized The Lower Court To Grant Fees Where Other Side Did Not Object To Them In Their Opposition Or At The Hearing

Inadequate Record Sealed The Result, But The Lesson Is To Make An Objection To A Fee Request Even If Inartfully Raised.

            The result in Barcenas v. 99 Cents Only Stores, LLC, Case No. B316898 (2d Dist., Div. 3 Feb. 17, 2023) (unpublished) is based on waiver, but it is a lesson to object to an attorney’s fees request even if made through declarations in support of a motion.

            The defense brought a motion to compel arbitration and, through declarations, sought attorney’s fees against the plaintiffs, although not mentioning it in their notice of motion per se but reiterating the request in a reply brief.  Plaintiffs did not oppose or apparently object at the motion to compel arbitration hearing.  The lower court awarded $6,759.65 in fees against plaintiffs as “a sanction.”  The appellate court affirmed because plaintiffs never objected to the fee request, with the panel believing that it was teed up enough through the notice of motion which incorporated the defense brief and declarations.  Moral of this opinion:  object or make a record that the fee request was inartfully or inadequately raised!

Family Law: $97,500 Fee Award To Ex-Female Significant Other Under Family Code Section 6344 Is Affirmed On Appeal

Ex-Male Significant Other Had Ability To Pay, But Lower Court Did Not Award Full Fee Request Of $181,042.

            Johns v. Cummings, Case No. B313964 (2d Dist., Div. 4 Feb. 17, 2023) (unpublished) involved the aftermath of a romantic relationship between Thomas Cummings, a recording artist, and Whitney Johns, a fitness model/personal trainer, who both have significant online followings.  After the relationship apparently soured, Ms. Johns prevailed on a request for a domestic violence restraining order and was awarded attorney’s fees of $97,500 against Mr. Cummings under Family Code section 6344, although much less than the $181,042 requested (with her Westside L.A. attorney awarded $650 per hour because he did a strong job of presenting petitioner’s case). 

            Mr. Cummings appealed the award, but it was affirmed.  The prevailing party in a Domestic Violence Prevention Act matter can be awarded attorney’s fees in the discretion of the lower court, although the ability to pay of the losing party must be considered.  The matter was contested vigorously, with there being financial evidence that Mr. Cummings did have assets and significant yearly royalty earnings.  That was sufficient to sustain the award.