Second District, Division 2 Strikes Fee Award.
Here is a reminder that fee entitlement is a key liminal concern for review of any attorney's fees award. The failure to plead a claim allowing for fee recovery can and often will be fatal to the ability to recoup substantial attorney's fees. The next case is a graphic illustration, costing a successful plaintiff in a police battery case a lot in fees when a substantial fee award went POOF! on appeal.
In Mock v. County of Los Angeles, Case No. B217502 (2d Dist., Div. 2 Oct. 6, 2010), plaintiff brought a complaint against L.A. County and two L.A. County sheriffs for violation of the Bane Act, false arrest/imprisonment, assault, battery, and negligence. One of the sheriffs was let out on summary judgment, and the County's negligence claims were adjudicated out on a summary adjudication motion. No claim under the federal civil rights statute (42 U.S.C. § 1983) was pled, nor any prayer for recovery of fees under the civil rights fee shifting statute (§ 1988). Two years after filing of the complaint, plaintiff moved to amend to assert a section 1983 claim, a request denied by the lower court as being prejudicial to defendants.
The jury found in favor of plaintiff only on the battery claim, awarding him $241,350 in damages. Plaintiff then requested an award of $516,232.50 in attorney's fees under section 1988, with the trial court granting fees to plaintiff of $329,208.35. Defendants appealed.
The fee award was indeed reversed on appeal.
The reason? Plaintiff did not prevail on a section 1983 claim, with the earlier request to amend having been denied by the trial judge. Not every battery results in a constitutional violation, with a section 1983 claim being harder to prove than a battery claim. Just as salient, there was a fundamental unfairness if plaintiff could recover fees from defendants—after all, the absence of the section 1983 claim impacted settlement options and denied defendants the opportunity to remove the case to federal court (and assert other defenses). Under the circumstances, reversal of the fee award was seen as the fair thing to do, decided Justice Ashmann-Gerst on behalf of a 3-0 panel.
BLAW BONUS: Recipe for Mock Chopped Liver.
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