Trial Court Retains Jurisdiction To Award Attorney's Fees to Prevailing Defendant After Granting A Motion To Quash Based Upon Lack of Personal Jurisdiction

Sixth District Affirms Grant of $34,492 in Attorney's Fees.

            Our first post was on May 11, 2008, surveying Profit Concepts Mgt., Inc. v. Griffith, 162 Cal.App.4^th 950, 955-956 (2008).  In that case, Justice Fybel of our local Santa Ana-based Court of Appeal affirmed an award of attorney's fees to a defendant who successfully moved to quash service for lack of personal jurisdiction.  Now, we can report that the Sixth District backed that result, squarely deciding that the trial court has jurisdiction to award fees in such a situation.

            In Shisler v. Sanfer Sports Cars. Inc., Case No. H032027 (6^th Dist. Sept. 25, 2008) (certified for publication) (Shisler II), the Sixth District held that a trial court still has power to rule upon a collateral motion for attorney's fees after granting a motion to quash for lack of personal jurisdiction.  The Sixth District did note that the same result was reached in Profit Concepts, even though the jurisdictional issue was not explicitly considered.  The appellate panel found support in Frank Annino & Sons Constr., Inc. v. McArthur Restaurant, Inc., 215 Cal.App.3d 353, 357 (1989) and Berard Construction Co. v. Municipal Court, 49 Cal.App.3d 710, 715-716 (1975), even though distinguishing Berard in one major respect—a distinction of Berard also noted previously by Justice Fybel in Profit Concepts.

            With the jurisdictional issue resolved, the appeal centered upon whether there was a statutory basis for awarding fees to defendant.  There were two potential bases:  California's Consumer Legal Remedies Act (CLRA), Civ. Code, § 1750 et seq., or the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), Fla. Stat. § 501.201.  Here is how those inquiries panned out:

·       CLRA – No.  Civil Code section 1780(d) only allows a fees award to a prevailing defendant upon a showing of subjective bad faith (Corbett v. Hayward Dodge, Inc., 119 Cal.App.4^th 915, 924 (2004)), which was precluded because the trial court found there was no subjective bad faith.  (BLOG CROSS-OVER—We previously explored a similar result reached by Justice Ikola, on behalf of the Fourth District, Division Three, in the unpublished decision of Olson v. Irvine Imports, discussed in our September 25, 2008 post.)

·       FDUTPA – Yes.  Because the motion to quash ruling was tantamount to a final judgment and the appellate process had been exhausted by plaintiff in unsuccessfully challenging the result in Shisler I, the Florida fee-shifting provision in FDUTPA was sufficiently broad to allow defendant entitlement to fees.  Because plaintiff's lawsuit indicated that Florida law governed, the FDUTPA provisions were substantive in nature so as to be a predicate for a fee award. (Cf.  Miller v. Union Pac. R.R. Co., 147 Cal.App.4^th 451, 458 (2007).) 

So, in the end, defendant's fee award was affirmed.