Court Should Have Ordered Supplemental Useful Billing Records or Relied on Its Own Experience in Fixing Fees.
In our June 30, 2008 post, we discussed the Gregg I and Gregg II duology out of the Fourth District, Division 1 about the level of detail that must be provided in fee substantiation and what can be done where overly redacted records are submitted in support of a fee motion. The Fifth District, in a recent unpublished decision, has now weighed in.
Johnson v. Board of Education of the Bakersfield City School District, Case No. F059702 (5th Dist. Mar. 29, 2011) (unpublished) was a situation where defendants were denied requested attorney’s fees of $248,243.80 and other defense costs of $9,194.08 after a lower court granted summary judgment against plaintiff, also finding that her action was not brought in good faith and with reasonable cause under the California Tort Claims Act so as to invoke the fee-shifting provision of Code of Civil Procedure section 1038. (This fee shifting provision was crafted because public entities cannot sue for malicious prosecution, so section 1038 was enacted as an alternative remedy.) However, the lower court essentially denied the fee request outright after finding that the defendants’ fee substantiation billings were overly redacted so as to retard meaningful review.
The Fifth District reversed. The appellate court found that the lower court should have explored two other options, namely, (1) directing the defendants to submit more useful billing records with less redactions or privilege log-like explanations for why information was deleted, or (2) simply using its experience and knowledge of what reasonable defense fees were incurred. Remanded for another look at the fee request in line with these directives.
BLOG COMMENT--Co-contributor Mike noticed that Justice Donald R. Franson, Jr. was on the deciding panel. He went to the same high school as Mike (along with Presiding Justice Hill of the Fifth District), and was a civil litigator/in-house attorney in the Fresno area before being appointed to the Fresno County Superior Court. He has now been elevated to the Fifth District. His father was a long-time Fifth District justice, and Mike had the pleasure of working with him as a clerk in the 1979-1981 area when he clerked for Justice George Zenovich (Ret.).
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