Even Though Fee Request Considered By Subsequent Judge, No Abuse.
Here is how Banyan Ltd. Partnership v. Baer, Case No. G046428 (4th Dist., Div. 3 Aug. 12, 2013) (unpublished) began: “This is the last of the three appeals that follow the final judgment in this 16-plus year, multi-phase litigation.” This appeal involved a lower court’s decision to deny dueling attorney’s fees requests from each side, under a Nevada fee-shifting statute that is different from California statute and more akin to CCP § 128.7/older § 128.5 sanctions provisions.
Postjudgment orders affirmed, in a 3-0 decision authored by Presiding Justice O’Leary.
With respect to California law, the appellate court confronted one side’s suggestion that a “heightened” abuse of discretion standard had to be applied to the fee order against it because a subsequent judge after the retirement of the unavailable merits-trying judge had to make the decision. The appellate court agreed that it had “somewhat more latitude”--the “somewhat” seemed to be certainly at play--in determining whether there was an abuse of discretion when a fee order was rendered by a judge other than the trial judge. (Center For Biological Diversity v. County of San Bernardino, 188 Cal.App.4th 603, 616 (2010).) However, the standard of review still was abuse of discretion, and there was none even under the heightened standard given the circumstances at play in this long-running litigation saga.
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