Deadlines, Section 1717, Allocation, and Section 998: Fourth District, Division 3 Addresses Hodgepodge Of Fee/Costs Issues

 

Affirms $289,000 Costs Award and $1.6 Million Fee Award.

     In a long-running case that has produced several appellate opinions along the way, V3I v. Western Digital Corp., Case No. G041386 (4^th Dist., Div. 3 Sept. 29, 2010) (unpublished) finally ran its course, with the final appeal being from a $289,000 costs award and almost $1.6 million fee award in favor of defendants and against plaintiff. That, too, was affirmed in a 3-0 opinion by the Fourth District, Division 3, penned by Acting Presiding Justice Rylaarsdam.

     Issue #1—timeliness of attorney fee motion. It was timely, said the Court of Appeal, because the 60^th day cutoff fell on a weekend, so that it was extended to the next Monday on which date the motion was filed. (Cal. Rules of Court, rule 1.10(b).)

     Issue #2—fees in favor of defunct defendant not allowable under Civil Code section 1717. Nope. Section 1717 says nothing about the payment of fees, just they have been “incurred.” The fact defendant had no money to pay its lawyers does not bar the fee award. (Lolley v. Campbell, 28 Cal.4^th 367, 373 (2002).)

     Issue #3—pre-filing attorney services. These, too, were allowable because the defendant was added at the last minute so that the pre-filing work was necessary. (Stokus v. Marsh, 217 Cal.App.3d 647, 654-656 (1990).)

     Issue #4—fees should be apportioned. Not here, because the issues and legal theories were interrelated.

     Issue #5 --- $164,000 in expert witness costs should not have been awarded. Incorrect, because plaintiff rejected defendants’ CCP § 998 offer of $200,000—with section 998 allowing expert witness costs even if the expert never testified (covering expert costs for trial preparation or trial work). The fees also were reasonable, based on the supporting declarations and billing statements showing the work performed by the experts.

     The end result was that the defendants prevailed, obtaining substantial fees and costs for their efforts in an epoch long battle.

Comments

[Dean McAdams]

Epic in magnitude. And at the end of the day, it's all about attorneys fees. Someone should write a practice guide about laying the foundation for an award of costs and attorneys fees at the end of your litigation. Here's the The Art of the 998!