CALIFORNIA ATTORNEY'S FEES

Attorney’s Fee Ethics: Orange County Law Article Covers Wide Range Of Topics

February 2009 Article by Carole Buckner Covers Many Ethical Issues.

     In the February 2009 edition of the Orange County Lawyer, Carole J. Buckner writes an article, “Ethics Opinions Provide Guidance in Resolving Attorneys’ Fee Issues,” covering a wide-ranging array of ethical issues relating to attorney’s fees.

     Here is a synopsis of issues discussed in the article:

Family Law: $20,000 Fee Award To Husband Goes “Poof!”

Reason: Court Did Not Consider Each Side’s Financial Needs or Other Relevant Factors.

     In our category “Cases: Family Law Awards,” we have had occasion to examine cases awarding attorney’s fees to one side under Family Code sections 2030 and 2032. A family law judge must consider certain statutory factors in making fee awards under these provisions, which focus mainly upon the financial positions, abilities to pay, and needs of each side to the dispute. As the next case demonstrates, even though fee awards are reviewed under the deferential abuse of discretion standard, they will be reversed where the record shows the lower court did not consider the relevant factors.

RFA Cost of Proof Fee Awards: A Two-Fer … Appellate Courts Do Not Allow Them In Two Recent Cases

Second District, Division 6 Reverses Substantial Award, While Second District, Division 5 Affirms Failure to Award RFA Fee Recovery.

     In our category “Cases: Discovery,” we have explored prior cases, some of which have granted substantial attorney’s fees award to litigants convincing lower courts that an opponent unreasonably denied discovery requests for admission of substantial importance. (Code Civ. Proc., sec. 2033.420(a); Brooks v. ABC, 179 Cal.App.3d 500, 508 (1986); Miller v. American Greetings Corp., 161 Cal.App.4^th 1055, 1066 (2008).) In the next two cases, appellate courts refused to grant RFA cost of proof fees, reversing a result in one and affirming a denial in the other.

HOA Fee Award: Homeowner Assessed With Fees, And Appellate Court Chastises Litigant For Not Using Small Claims Court Alternative

Fourth District, Division 1 Expresses Displeasure That Inexpensive Forum Was Not Pursued.

     In our category “Cases: Homeowner Associations,” we have discussed cases where HOAs or homeowners prevailed (or neither side prevailed) in disputes involving proper interpretation of CC&Rs—usually involving maintenance, repair, or view protection disputes. Attorney’s fees are usually the ultimate battle, because they usually are authorized under Civil Code section 1717 or 1354(c) (with the court having discretion to award them). Although our next case is one where a homeowner lost, the ending views of the Fourth District, Division 1 provide an important lesson to individuals who want to vindicate their rights against HOAs—if pocketbook is a concern.

Dog Lovers Beware—If Have a Service Dog That You Need To Bring To Court, Make Sure It Sits Down and Does Not Bother Jurors—Or Hire The Dog Whisperer

 

In Pro Per Disabled Plaintiff Has Case Dismissed and Suffers Adverse $422,487.04 Costs Award Against Him.

     The next case, although involving convoluted and far from mundane facts, should be of interest to dog lovers, and to tooth and claw litigators. As far as our blog is concerned, it reminds all plaintiffs—especially in pro pers—to be seriously prepared for trial. If not, you might find yourself subject to exposure for significant costs submitted by the winning opponent.

Scipio, St. Bernard acquired by Orville Wright in March, 1917.

Library of Congress.

Private Attorney General Statute: Appellate Court Affirms Trial Court Award Of $43,410.20 To Winning Plaintiff

First District, Division 4 Rejects Plaintiff’s Bid To Capture Full $272,581.10 in Fees That Were Incurred, Applying a Negative Multipler Instead.

     Plaintiff Tanzel won a facial constitutional attack and preemption challenge to a Richmond ordinance authorizing the city to seize and forfeit vehicles used to solicit prostitution or to buy drugs. In a prior appellate opinion sustaining the win, the panel did acknowledge it was “not writing on a tabula rasa, as all of the important legal issues presented [had] been decided by other courts considering similar challenges to nearly identical ordinances enacted by other municipalities.” Except for a single exception, Tanzel’s constitutional attacks were rejected—he was successful on two claims and unsuccessful on three claims if one used a “scoreboard approach.” Plaintiff sought to recover base fees of $181,720.73 with at least a 1.5 multiplier (a minimum adjusted award of $272,581.10) under California’s private attorney general statute (Code of Civil Procedure section 1021.5). The trial court awarded him fees of $37,460.70, applying a negative multiplier of .40 to the lodestar amount. Plaintiff appealed.

Class Action: Court Of Appeal Sustains 1.4% Fund Recovery And 2.52 Lodestar Multiplier In Consumer Class Action

Third District Sustains Substantial Fee Award in Unpublished Decision.

     Who says that class action attorneys are greedy? No matter what your bent, the next case is a refreshing example of how substantial fees are justified in a class action settlement generating substantial recovery for class members.

Civil Rights Plaintiffs: Ninth Circuit Reverses Adverse Fee Award, Finding Dismissed Case Was Not Frivolous

Reversal Draws A Dissent On the Fee Award Issue.

      Under our category “Cases: Civil Rights,” we have discussed federal civil rights decisions brought under 42 U.S.C. sec. 1983. Generally, section 1988 is a pro-plaintiff fee shifting provision, although fees can be awarded to the defense where the claim is shown to be frivolous in nature. Nevertheless, as the next case illustrates, the Ninth Circuit appears loathe to uphold fee awards against civil rights plaintiffs, unless the result is crystal clear as far as the merits are concerned.

Probate: Trustee Entitled To Interim Attorney’s Fees Award To Cover Accounting And To A Return Of Trust Distributions To Cover Future Administrative Fees

 

Second District, Division 6’s Holding Designed to Promote Trust Administration by Trustees.

     Probate practitioners, pay attention—we have a recent unpublished case that should be of interest in your area of expertise.

     In Kasperbauer v. Fairfield, Case No. B200076 (2d Dist., Div. 6 Jan. 26, 2009) (unpublished), trust beneficiaries obtained orders substituting a successor trustee for Mr. Fairfield, prior trustee for over 24 years, and for an accounting. The trial court ordered the withholding of $75,000 from the trust to cover Fairfield’s anticipated fees and costs associated with preparation of the accounting. The trust corpus was ordered distributed even though the accounting was not complete. Following distribution, Fairfield sought additional funds, with the trial court adopting a referee recommendation that beneficiaries return $250,000 of the trust distribution to provide a fund from which to pay Fairfield’s fees and costs in completing and defending the accounting. Beneficiaries appealed, arguing that the interim award of fees/costs was unauthorized and premature.

Mixed Result In Decade Long Litigation: Substantial Attorney’s Fees Award Goes “Poof” When Plaintiff Should Have Been Given Leave To Amend, But Plaintiff Denied Post-Judgment Enforcement Fees

Second District, Division 7 Publishes Decision in Decade Long Battle Arising From Credit Impairment Allegations.

     Although too long to recite in detail (43 pages in length), Sanai v. Saltz, Case Nos. B198217 & B202787 (2d Dist., Div. 7 Jan. 26, 2009) (certified for publication) chronicles a donnybrook between a former in pro per renter (a transactional lawyer who learned litigation along the way), credit-reporting service, and landlord over a credit reporting dispute arising out of claimed unpaid rent under $5,000. (Yes, you heard that right.) The case demonstrates the “poof” principle and reinforces that a judgment must award fees in order for the judgment creditor to obtain post-enforcement attorney’s fees by statute.

      Click it up; here are the facts.

Purchase Agreement Mediation Clause: Even Nonsignatories Need To Satisfy Fee Qualification Requirement Or Risk Nonrecovery of Fees

Fourth District, Division 2 Extends Mediation Penalty to Nonsignatories in Unpublished Opinion.

     In our category “Cases: Mediation,” we have surveyed decisions warning all participants in a real estate transaction to satisfy a mediation requirement if it is called for as a requisite of obtaining an award of attorney’s fees under a fees clause. (Two of the leading cases are Frei and Lange.) Now, the Fourth District, Division Two, albeit in an unpublished decision, extends the necessity for satisfaction of this requirement to contract nonsignatories.

Prevailing Individual Defendant In Employment Retaliation Case Awarded Substantial Routine Costs After Rejected 998 Offer Of $1.179 Million 998 Offer Found Reasonable In Nature

 

Fourth District, Division 3 Affirms Costs Award in Favor of Winning Individual Defendant.

     If you are a plaintiff suing for employment retaliation, do not think that the suit carries little risks. Routine, non-fee costs of a substantial nature can still be assessed against you. Also, you as the plaintiff need to seriously evaluate substantial 998 offers, rather than gamble that you will do better in front of a jury. The next case illustrates these lessons well.

Shareholder Derivative Actions: Prevailing Defendants Must Look To Bond For Recovery Unless Independent Basis Exists For More Fees

Fifth District Finds that Corporations Code Section 800 Is a Bond/Security Statute, Not Fee Liability Statute.

     The Fifth District, in West Hills Farms, Inc. v. RCO Ag Credit, Inc., Case No. F054748 (5^th Dist. Jan. 26, 2009) (certified for partial publication), found that a prevailing defendant in a shareholder derivative action is limited to recovering under any bond posted by the plaintiff under Corporations Code section 800 (even though the bond cannot exceed $50,000). Defendant moved to recover fees and costs of more than $350,000, rather than the $50,000 bond posted by plaintiff under section 800. Both the lower and appellate courts limited defendant to the bond amount, finding that section 800 was a “bond or security” statute rather than “an open-ended attorney fee liability” statute. The appellate panel relied on Freeman v. Goldberg, 55 Cal.2d 622 (1961) and Alcott v. M.E.V. Corp., 193 Cal.App.3d 797 (1987) in support of its conclusion.

     However, in a footnote, the West Hills Farms court did note that the defendant could look to legal or statutory authority independent of section 800 to recover fees and costs beyond the amount of the bond. (Slip Opn., at p. 10 n. 11, citing Brusso v. Running Springs Country Club, Inc., 228 Cal.App.3d 92, 107 (1991).)

Fee Arbitration: Contractual Arbitration Remedy Not Preempted By Client's Option To Pursue MFAA Arbitration

 

California Supreme Court Adopts Justice Chin's Concurring Analysis in Lerner v. Aguilar.

     Today, the California Supreme Court resolved an interplay between the mandatory fee arbitration act (MFAA, Bus. & Prof. Code, § 6200 et seq.) and the California Arbitration Act (CAA, Code Civ. Proc., § 1280 et seq.). In Schatz v. Allen Matkins Leck Gamble & Mallory LLP, Case No. S150371 (Cal.Sup.Ct. Jan. 26, 2009), it answered a question left undecided in Aguilar v. Lerner, 32 Cal.4^th 974 (2004): whether a client who chooses MFAA arbitration may request a trial de novo after that arbitration had concluded when this request would undermine an attorney's motion to compel contractual arbitration under the CAA based normally on an arbitration clause in the retainer agreement.

     The Supreme Court in Schatz tracked Justice Chin's concurring opinion in Lerner, deciding that initial resort to MFFA arbitration does not limit the ability of attorneys to enforce a binding contractual arbitration clause in a retainer agreement. Although Business and Professions Code section 6204 is ambiguous in referring to a "trial" after MFAA arbitration, that ambiguity did not lead to the conclusion that this language was an implied repeal of the CAA. Furthermore, Schatz based its conclusion on the illogical consequences that would result from a contrary result: (1) a client would be permitted to evade its agreement to arbitrate by going through the charade of demanding and obtaining nonbinding arbitration under the MFAA before it could go to trial; and (2) an uneven "playing field" is presented if either side could avoid arbitration because the client sought MFAA arbitration, because the attorney could not unilaterally evade arbitration where no MFAA relief is sought by the client. " … it is evident the MFAA did not impliedly repeal the CAA. The two statutory schemes do not even govern the same subject. The MFAA concerns nonbinding arbitration that the parties did not agree to in advance, while the CAA concerns binding arbitration agreed to in advance." (Slip Opn., at p. 19.)

Routine Costs: Amended Verification Allowed By Trial Court “Related Back” To Filing Of Initially Defective Costs Verification

 

Third District Finds Defect Was Not Jurisdictional in Unpublished Decision.

     California Rules of Court, rule 3.1700 contains provisions relating to deadlines and requirements for filing and serving costs memoranda by prevailing litigants. Some of the requirements are: (1) a verification about accuracy of costs must be based on the declarant’s knowledge; (2) the verification must be signed under penalty of perjury; (3) prevailing litigants must file and serve the costs memoranda (including the verification) within 15 days from entry of judgment; and (4) the lower court can extend the deadlines by a period not exceeding 30 days. The next case—an unpublished decision from the Third District—has an interesting discussion of how these rules interplay with each other where a trial judge has sustained objections to a timely filed costs memorandum verification but granted “leave” to file a subsequent verification that cured flaws and resulted in entry of a costs award.

Civil Code Section 1717: Fee Award Reversed Because Prevailing Party Determination Is Different Than The Standard For Adjudging An Award Of Routine Costs

Second District, Division 7 Remands for Further Fee Proceedings.

     City of Los Angeles won attorney's fees against a replacement contractor selected by a bonding surety, where surety and replacement contractor entered into contractual agreements incorporating original agreements between City and the replaced contractor. Replacement contractor lost in the construction litigation, with the trial court awarding attorney's fees against contractor and in favor of City as the "prevailing party." Contractor was hit with an adverse fee award of $187,243.50. Contractor appealed.

     In D&M Construction v. Washington International Ins. Co., Case No. B195952 (2d Dist., Div. 7 Jan. 20, 2009) (unpublished), the appellate court reversed the fee award in City's favor.

Off Topic: Recent Fourth District, Division 3 Is Must Reading For Litigators On Separate Statement Requirements In Summary Judgment/Adjudication Motions.

     Although we rarely venture out of the attorney’s fees area, we commend for reading the Fourth District, Division Three’s recent published decision in Oldcastle Precast, Inc. v. Lumbermens Mutual Cas. Co., Case No. G038645 (4^th Dist., Div. 3 Jan. 23, 2009).

     In a 3-0 decision authored by Justice Fybel, the appellate court provided a “virtual reality” lesson in how summary judgment/adjudication separate statements should be crafted and opposed. Among other things, it reinforced that defendants opposing summary judgment/adjudication motions have the burden to prove defenses, with it being unnecessary for plaintiff to disprove defenses as part of the moving initial burden. Oldcastle also has gems on how a defendant needs to adequately oppose separate statement issues, discussing its own prior decision of Parkview Villas Assn., Inc. v. State Farm Fire & Cas. Co., 133 Cal.App.4^th 1197 (2005) in the process. Must reading for litigators.

Homeowner Associations: “No Prevailing Party” Determination Means No Fee Award For Either Side In Mold Insurance Proceeds Dispute

Ruling Affirmed Where Homeowner Spent Fees of At Least $35,088.50 and HOA Spent At Least $92,335.25.

     In our category “Cases: Homeowner Associations,” we have examined numerous contests between homeowners and homeowner associations (HOA) in common interest developments where attorney’s fees are often the real battle because most CC&Rs and Civil Code section 1354 allow them to be recovered. Sometimes, one side or the other wins big. (See Ritter & Ritter, Inc. v. The Churchill Condominium Assn., 166 Cal.App.4^th 103 (2008), an “honorable mention” in our survey of 2008 Top 10 cases discussed in our December 31, 2008 post.) However, more frequently, we see cases where no side obtained fee recovery—despite spending substantial sums—because the trial court found there was no “prevailing party,” a discretionary call under either Civil Code section 1717 or section 1354. (See, e.g., Pasternak v. Bear Brand Ranch Community Assn. (4^th Dist., Div. 3 unpublished), discussed in our May 22, 2008 post.) These cases, as well as any, illustrate the theme of our entire blog (as well summarized by Justice Wallin in Deane Gardenhome Assn. v. Denktas, 13 Cal.App.4^th 1394, 1399 (1993)), that attorney’s fees often are the tail that wag the “litigation dog.” The next decision we survey was a “no prevailing party” determination and counsels that homeowners-HOAs should try to work things out, long and hard, before using the courtroom as their field of battle.

Apportionment: If Your Opponent Dares You To, A Claimant Should Do So In Reply To Avoid Forfeiture

Fourth District, Division 1 Sends Such a Message in Unpublished Decision.

     In our category “Cases: Allocation,” we have explored when apportionment of fees is necessary in a fee petition involving time spent on claims subject to a fee-shifting statute or time expended on noncovered claims. Although it is a discretionary judgment call for the trial court, the next fee claimant learned that an opponent’s call for apportionment should not be lightly ignored.

MFAA Fee Arbitrations: Clients Beware—Make Sure You Have A Winning Contractual Interpretation Defense Or Be Prepared To Cough Up Unpaid Fees Plus Litigation Expenses To The Winning Former Attorney If You Do Not Exceed the MFAA Arbitration Award Late

First District, Division 3 Affirms Lower Court Award in Favor of Attorney, Including Substantial Fees Award.

     In our category “Cases: Arbitration,” we have discussed the Mandatory Fee Arbitration Act (MFAA), Business and Professions Code section 6200 et seq. This allows a client to engage in a nonbinding arbitration with an attorney over a fee dispute (but it does not cover other issues such as malpractice, breach of fiduciary duty, or affirmative claims for money over and above the fee dispute). However, even if client and former attorney engage in a nonbinding fee arbitration, the client needs to proceed with caution if the client asks for a new trial due to dissatisfaction with the arbitration award. Section 6204(d) provides that a party prevailing at trial after a rejected MFAA arbitration award—if the trial result is better than the arbitration award—can be awarded discretionary attorney’s fees by the trial court. That provision rose up to the bite the client in the next case we discuss.

Homeowner Association Disputes: If You Want To Collect Fees From Winning, Make Sure Your Opponent Is A Legal Entity!

Fees Properly Declined To Victorious Defendant Where One Suing Plaintiff Was Not A Legal Entity And The Other Plaintiff Was Not Sued Individually--First District, Division 5 Affirms Refusal To Award Fees in a Unique Case.

     In our category “Cases: Homeowner Associations,” we previously have canvassed decisions awarding attorney’s fees to either HOAs or homeowners under Civil Code section 1354(c), a mandatory fee-shifting provision once a trial court exercises its discretion to determine who is a prevailing party. (Silver v. Boatwright Home Inspection, Inc., 97 Cal.App.4^th 443, 449.) The next decision is rather sui generis—it involved a nonlegal entity (Irish Beach Clusterhomes Association Board of Governors) and its president (Mr. Moores) avoiding section 1354(c) fee exposure based primarily upon entity’s inability to sue and defendant’s failure to “prevail” against president individually.

FEHA: Fees Award Affirmed Against Nonprofit Organization Because It Was Unreasonable and Frivolous In Nature

$125,000 Fee Award Sustained on Appeal.

     Although FEHA fee awards are not that common against plaintiffs, they will be assessed and affirmed on appeal under the right circumstances.

     Fair Housing Council, San Fernando Valley v. Voleti Properties, Case Nos. B201263 & B202918 (2d Dist., Div. 7 Jan. 21, 2009) (unpublished) is just such a case.

     There, plaintiffs—a nonprofit organization and an adult African American—sued defendants under FEHA for discriminatory housing practices in connection with a Van Nuys apartment. The main problem for plaintiffs is that they prosecuted a case where the nonprofit organization’s testers gave discrepant information to the trial court, only after the information had to be judicially compelled for production to the defense. The trial court granted judgment for the defendants under Code of Civil Procedure section 631.8. Subsequently, it assessed an award of $125,000 in attorney’s fees and $10,105.73 in costs against plaintiffs based on the perception that the case was unreasonable, frivolous, and meritless in nature.

     Nonprofit organization appealed and lost. Appellants failed to present an adequate record for review and showed no prejudicial error. Respondents did provide the fee hearing transcript so as to demonstrate there was no basis for reversal. The testers’ discrepancies alone seemed to carry the day with respect to sustaining the result.

     BLOG APPELLATE POINTER—If you are the respondent and the transcripts of lower court proceedings aid your cause, do not hesitate to request augmentation so that they can be considered. Respondents did it in this case, and it assisted their efforts in supporting the trial court’s determinations.

 

Left:  San Fernando Valley rural rehabilitation client.  Chicken farmer making good on rural resettlement loan.  He sells one case of eggs a day.  Right:  San Fernando Valley federal subsistence homesteads.  February, 1936.  Photographer:  Dorothea Lange.  Library of Congress.

FEHA: Appellate Court Sustains 1.4-1.6 Multipliers To Plaintiffs' Fee Awards

Second District, Division 6 Rebuffs Challenges to FEHA Multipliers.

     Plaintiffs winning claims under the California Fair Employment Housing Act (FEHA), Gov. Code, § 12900 et seq., are normally awarded fee-shifting awards. Trial courts have ability to enhance the lodestar—the number of hours reasonably expended multiplied by the reasonable hourly rate—by a multiplier in order to fix the fee at the fair market value for the legal services rendered. (Ketchum v. Moses, 24 Cal.4^th 1122, 1134 (2001).) In the next case, plaintiff won a $1.2 million compensatory damage award (reduced from $1.7 million by the trial court), a $1.2 million punitive damage award (reduced from $16.7 million by the trial judge), and awards of attorney's fees to one of his firms in the amount of $300,709.50 (using a 1.4 lodestar multiplier) and to another firm in the amount of $343,265.60 (using a 1.6 lodestar multiplier). Corporate defendant was not happy and appealed, even after plaintiff accepted the remittitur.

Off Topic: John Mortimer, creator of Horace Rumpole, Dies in His English Home at Age 85

Author of the Barrister Character Who Was Rebellious, Self-Absorbed, and Thoroughly English in Mannerisms.

     On Friday, January 16, 2009, John Mortimer died in his home in Oxfordshire, England at the age of 85. Mr. Mortimer was the creator of Horace Rumpole, a rebellious, cigar-smoking British barrister who defended criminal clients and tried most of his cases in London’s Old Bailey. Mr. Mortimer was a barrister himself and a member of the Queen’s Counsel, prosecuting many civil rights cases while he was in practice (and before he turned to writing humorous stories involving Rumpole).

Off Topic: Has America Become A Society of Litigious “Victims”?

 

Attorney/Author Philip Howard Thinks So, A Theory Advanced In His Book “Life Without Lawyers: Liberating Americans from Too Much Law.”

     With many reviewers hailing it as a thoughtful plea for a return to common sense, attorney Philip K. Howard has written a recent book entitled “Life Without Lawyers: Liberating Americans from Too Much Law.” Its primary thesis is that society is dazed by “rule stupor” and victimized by litigious “victims,” which produce the incentives for intensified complaining. Millions of obese children sit in front of computer and televisions, casualties of what he calls a “bubble-wrap approach to child rearing” produced by the “cult of safety.” A predictable byproduct of the victimization syndrome is brazen cynicism, encouraged by what Mr. Howard calls trial lawyers “congregating at the intersection of human tragedy and human greed.” For an interesting commentary on Mr. Howard’s recent book, see George F. Will’s column in the January 12, 2009 OpEd section of The Orange County Register.   "Read Howard's book," Mr. Will writes, "and weep for the death of common sense."

Anti-SLAPP Fee Awards: They Usually Will Not Be Subject to Reduction Based On Just Generalized Gripes

First District, Division 4 Rebuffs Challenge to $18,750 Fee Award.

     The next case trumpets a familiar refrain that we have seen from many appellate decisions: a contention asking for denial or reduction of fees in any award needs to be supported by specific argumentation and specific evidence. Otherwise, the contention may well be found nonpersuasive at even an elementary level of consideration.

     Appellant Dr. McRae, in McRae v. Richman, Case No. A121284 (1^st Dist., Div. 4 Jan. 16, 2009) (unpublished), filed a false light privacy invasion complaint against the Oakland Tribune arising out of an article

Costs: Order Directing Set Aside of Settlement Funds Based On Costs Award Results In Issuance Of Appellate Mandate Writ

Second District, Division 2 Overturns Set Aside Order, But Does Not Pass on Validity of Lien.

     A defense judgment involving a costs award is usually automatically stayed without bond pending an appeal by the impacted party, such that execution efforts cannot go forward until the appeal is final. (Vadas v. Sosnowski, 210 Cal.App.3d 471, 475 (1989).) The next case involved an appellate writ petition, with the panel finding Vadas to be dispositive.

     In Stites v. Superior Court, Case No. B213360 (2d Dist., Div. 2 Jan. 15, 2009) (unpublished), defendants/real parties (Hilton) won a costs award against petitioner after winning summary judgment. Hilton filed a costs memorandum, seeking $14,750.32 in routine costs. Petitioner reached a settlement with other defendants, with Hilton filing a notice of lien based on the costs award in the litigation. Hilton also filed a motion to direct payment of the settlement funds to it, with petitioner appealing the summary judgment order. The trial court ordered the settlement funds frozen in a joint account to be maintained until there was a ruling on petitioner’s appeal. Petitioner sought mandate.

Family Law: Section 271 Sanctions Award Affirmed On Appeal Even Where Fee Recovery Encompassed Fees Not Tied To Loser’s Failure To Cooperate.

 

Fourth District, Division One Sustains $3,000 Award Against Husband.

     In our category “Cases: Family Law Awards,” we have reviewed past decisions discussing Family Code section 271, which allows a family judge to award fees as a sanctions against a litigant or counsel who frustrates the policy of encouraging settlement or cooperation in family law disputes. Under this provision, the court does have to take into effect a party’s ability to pay such sanctions. The next case illustrates that the amount of the sanctions does not have to be precisely tethered to the offensive conduct.

Withdrawn Cross-Claim Subject to Fee Shifting Means No Prevailing Party Under Retention “Prompt Payment” Statute

 

Owners Did Not Prevail Because Contractor Withdrew Cross-Claim During Deposition and Never Pursued Recovery Under It.

     Courts like to encourage narrowing of disputes by litigants. The next case illustrates how a non-prevailing contractor avoided attorney’s fees exposure under Civil Code section 3260(g), which authorizes fees/costs to the prevailing party involving a claim that retention payments were improperly withheld to a contractor, by withdrawing the 3260 claim during litigation.

Sanctions: Self-Represented Attorneys Winning CCP Section 128.7 Sanctions Are Not Entitled to Fee Recovery

 

California Supreme Court Follows Trope v. Katz in the Section 128.7 Context.

     Today, the California Supreme Court in Musaelian v. Warner, Case No. S156045 (Cal. Sup. Ct. Jan. 15, 2009) decided that Code of Civil Procedure section 128.7 does not authorize sanctions in the form of an award of attorney's fees to self-represented attorneys.

Arbitration: Arbitrator’s Fee Award Modified By Appellate Court Based On Finding “No Anchor” For Fee Recovery

First District, Division 2 Demonstrates Appellate Scrutiny Of Basis For Fee Award.

     In past posts (see, e.g., our July 15, 2008 post on Patel v. Sagar), we have reviewed appellate decisions involving scrutiny of arbitration awards. Several decisions have affirmed arbitrator fee awards even though there was no clear basis, either by contract or statute, for such recovery by the winning arbitration claimant. Lest readers think that arbitration awards are always governed by “equitable” principles that drive many practitioners crazy, the next case may give you solace that many appellate courts will modify awards by deleting fee recoveries lacking in substantive bases.

Anti-SLAPP Fees: Fee Award Not Cognizable Until Final Judgment And Fee Reduction Request Waived by Lack of Supporting Argument

Second District, Division 7 Finds No Basis to Reduce Fee Award to Anti-SLAPP Victor Any Further.

     If you are going to challenge the award of a mandatory fee to an anti-SLAPP victor, the message from the next case is to make sure that you have an appealable fee order and that you provide substantiated authority for a further reduction from any reduced amount already made by the trial court.

CCP Section 1021.4: Pedestrian Skater Sustains $90,000 Fee Award For Winning Jury Verdict Arising Out Of Drunk Driving Negotiated Criminal Settlement

Second District, Division Seven Also Finds That Defendant’s 998 Offer Was Too Uncertain to Enforce.

     The next case involves a personal injury case, involving an interesting discussion of Code of Civil Procedure section 1021.4’s fee-shifting provision and the uncertain nature of the defendant’s Code of Civil Procedure section 998 offer involving other litigation lurking in the background.

     The facts in Armstrong v. Bergin, Case No. B200985 (2d Dist., Div. 7 Jan. 12, 2009) (unpublished) go like this:

Fraud Cases: Don’t Forget That You May Get Fees Under Robinson Helicopter

 

Second District, Division Seven Awards Fees To Broker Based On Fraud and Fees Clause in Brokerage Agreement.

     Normally, Civil Code section 1717 does not allow recovery for fraud counts, unless the fees clause is broadly worded. (See our category “Cases: Section 1717.”) However, practitioners should not forget that fee recovery may be possible under Robinson Helicopter Co., Inc. v. Dana Corp., 34 Cal.4^th 979, 992 (2004). The next decision we discuss is a good illustration of a situation justifying fee recovery under Robinson Helicopter.

Anti-SLAPP: Trial Court Has Discretion To Reduce Lodestar and Award Fees Reasonably Expended By Counsel

 

Second District, Division 8 Reduces Requested Fees/Costs From $7,737 to $2,580 to Winning Anti-SLAPP Victor.

     Discretion, discretion, discretion. Awfully tough standard to win on appeal in any context, even when you win fees as a victorious plaintiff successfully prosecuting an anti-SLAPP motion. The breadth of discretion is illustrated in the next unpublished decision that we discuss.

     In Allahverdi v. Monroe, Case No. 205349 (2d Dist., Div. 8 Jan. 13, 2009) (unpublished), plaintiff won an anti-SLAPP motion—which means an award of fees was mandatory—and sought to recover $7,737 in fees and costs. The trial court awarded only $2,580. Plaintiff was miffed, appealed,

Tort of Another: Plaintiffs Suing For Expenses In Suing Successor Property Owners Under Nuisance/Trespass Theories Not Entitled To Recover Fees From Predecessor Property Owners

 

Sixth District Narrowly Construes Scope of “Tort of Another” Fee Exception.

     In our November 13, 2008 post, we noted that co-contributors Marc and Mike wrote an article on recovering attorney’s fees as damages in the Vol. 21, No. 3 issue of the 2008 California Litigation. One of the discussed topics was the “tort of another” exception to the American Rule for recovery of attorney’s fees. We discussed how narrowly this exception has been construed by the relevant jurisprudence. The next recent case reinforces this conclusion.

Appealability: Failure to Timely File Reconsideration Ruling Resulted In Dismissal of Appeal Challenging $70,408.75 Fee Award

Fourth District, Division Three Determines Notice of Reconsideration Ruling Does Not Need Any “Magic” Language to Trigger Running of Appeal Period.

     The next case is an interesting reminder to hit the books when determining what triggers the running of the appeal period in the context of reconsideration rulings.

     In Walshe v. Gelfand, Case No. G041115 (4^th Dist., Div. 3 Jan. 12, 2009) (unpublished), the court entered a judgment against appellant for attorney’s fees in the amount of $70,408.75 after dismissal of appellant’s complaint against defendants. Defendants served a notice of entry of judgment, and appellant timely moved for reconsideration of the fee award, which was denied in a minute order. Defendants served appellant with a document entitled “notice of ruling” on the reconsideration motion. However, appellant filed his notice of appeal 50 days after service of the reconsideration ruling notice. Motions were then filed by appellant and respondents in the appellate court as to the timeliness of appellant’s appeal. Appellant lost, and the appeal was dismissed in a by-the-court opinion.

     California Rules of Court, rule 8.108(e) requires that an appellant appeal a reconsideration motion order by the earliest of (1) 30 days after the superior court or a party serves an order denying the motion or a notice of entry of that order, (2) 90 days after the first motion to reconsider was filed, or (3) 180 days after entry of the appealable order.

     In the case before it, the 4/3 appellate panel determined that trigger (e)(1) was fatal. Although appellant argued that the “notice of ruling” was inadequate given that “notice of entry of order” language was required, the Court of Appeal rejected this contention. Rather, rule 8.108(e)(1) “does not require any particular title for a document to trigger the 30-day deadline” (Slip Opn., at p. 3), contrasting it with rule 8.104(a)’s explicit requirement of service of a “document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment” to start the 60-day clock for the “normal time” to appeal. Because the appeal was 20 days past the 30-day appeal deadline, appellant’s appeal was dismissed.

     The panel of justices on Walshe—Presiding Justice Sills; Justice Moore; and Justice Fybel.

    Hourglass:  (c) S. Sepp, 2007, Wikipedia Commons.

Ninth Circuit Amends Hubbard Decision In Light Of Molski

ADA/CDPA Preemption Decision Is Amended Based on Later State Court Decision, With No Change in Result.

     In our July 3, 2008 post, we discussed Hubbard v. SoBreck, LLC, Case No. 06-56870 (9^th Cir. 2008), which held that an award of attorney’s fees to defendant under the California Disabled Persons Act was preempted by the federal American with Disabilities Act having more restrictive fee-shifting provisions.

     Recently, the Ninth Circuit amended its prior opinion in Hubbard

January 2009 edition of Orange County Lawyer Discusses Attorney Lien, Contingency Fee Modification, and Family Law Discovery Fee Issues

Edition Discusses Feldman, Shopoff, and Stroud.

     Two articles in the January 2009 edition of the Orange County Lawyer discuss fee issues of interest in the area of family law and ethics.

     In “Executive Divorce,” authored by attorney Lisa Hughes, there is a discussion of Marriage of Feldman, 153 Cal.App.4^th 1470 (2007). There, the court awarded $250,000 in sanctions and $140,000 in attorney’s fees before trial when a husband failed to provide wife with full information necessary for her to properly identify, characterize, and value assets.

     In “2008 Ethics Round-Up,” authored by OCBA’s Professionalism and Ethics Committee, the article discusses two cases:

Brandt Fees: Great Illustration On How To Apportion Fees Correctly

 

Fourth District, Division One Decision Shows the Right Way to Do It!

     In our category “Cases: Insurance,” we have highlighted the Brandt fees apportionment issue for insureds obtaining fee awards in their favor for purposes of recouping benefits under their insurance policies. The next case is a good illustration on how to properly posture recovery of Brandt fees at the trial court level so as to preserve the award on appeal.

     Major v. Western Home Ins. Co., Case No. D050479 (4^th Dist., Div. 1 Jan. 6, 2009) (certified for publication) involved a situation where an insured obtained a jury verdict of $1.3 million in an insurance bad faith case, $189,000 of which represented an award of attorney’s fees under a Brandt theory. (Note—the jury awarded Brandt fees in this case.) Insurer appealed, but lost upon review.

     Here is the showing that was sustained on appeal in favor of the insured—containing great “pointers” on how to correctly present a Brandt fee award for approval: