Fee Recovery of Less than 10% of Request Affirmed on Appeal.
Byrne v. Peninsula Heating & Appliance, Inc., Case No. A134664 (1st Dist., Div. 5 June 12, 2013) (unpublished) is one of those classic appeals involving a challenge to the amount of fees, which is governed by an abuse of discretion reviewing standard. The appealing party did not get any relief on appeal, despite claiming that a less than 10% fee request award was erroneous in nature.
Warring brothers taking over a business from a father and then parting to form separate businesses filed dueling lawsuits, eventually entering into a settlement agreement of the various actions with -- dant! dant! da! -- a fees clause which was very broad in scope for fee recovery recapture in the event the settlement agreement came into controversy. Well, one brother apparently breached the settlement, setting off another roundelay of settlement proposals and demands, but with non-breaching brother having to file a cross-complaint to overcome the argument fees and costs were not recoverable unless there was an “action or proceeding.” Non-breaching brother sought $65,424.44 in fees, but the trial court was only willing to grant fees for a Sacramento action, inviting further fee submissions. Incredibly, brother who would get some fees, if reasonable, asked for more--$85,070.30 in fees! Opposing brother contested the amount, arguing that only $7,641 should be awarded, a position endorsed completely by the lower court.
“Winning” brother appealed, claiming the $7,641 award was too low, an argument reviewed under the abuse of discretion standard. (Children’s Hospital & Medical Center v. Bonta, 97 Cal.App.4th 740, 777 (2002).)
The result in this appeal calls to mind the words of Justice Fybel (4th Dist., Div. 3), who at a seminar indicated that any party to a fee appeal should provide a “roadmap” to the appellate justices. No roadmap was provided by the appellant in Byrne.
The primary flaw in the appeal was a failure to specifically identify challenged entries or provide legal authority demonstrating that the entries were suspect. Rather, certain vague billing entries were self-evident and justified the lower court’s reductions. Although supplying a 107-page allocation chart, appealing brother did not correlate his arguments to this chart--a real problem on appeal. For example, after appealing brother admitted some errors in his memory, the appellate court basically said “what is good for the goose is good for the gander”--if you say you did a detailed analysis (but with errors), the trial court can well view with skepticism the remainder of a fee request. Given that the lower court has lots of discretion to reduce perceived inflated fee requests, there was no abuse of discretion in the scalped amount awarded here.
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