Year In Review 2014—Part 2.

 

Yearly Roundup: Mike & Marc’s Top 20 Fees/Costs Decisions In 2014.

     Here are the final 10 decisions to round out our top California fees/costs decisions for 2014.

     10. Settle v. State of California, 228 Cal.App.4^th 215 (July 23, 2014) [2d Dist., Div. 6; authored by Yegan, J.] and Suarez v. City of Corona, 229 Cal.App.4^th 325 (Aug. 29, 2014) [4^th Dist., Div. 1; authored by McIntyre, following the result/reasoning in Settle]: Mandatory award of attorney’s fees under Code of Civil Procedure section 1038 cannot be made against a party’s counsel, with Code of Civil Procedure section 128.7 being the proper mechanism to use in seeking sanctions against a party’s counsel. [Settle discussed in our July 24, 2014 post; Suarez discussed in our August 29, 2014 post.]

     9. Conservatorship of McQueen, 59 Cal.4^th 602 (July 7, 2014) [California Supreme Court; authored by Werdegar, J.]: Elder abuse appellate, post-judgment fee requests are not governed by Code of Civil Procedure section 685.080 judgment satisfaction deadline, but instead governed by normal California Rules of Court, while post-judgment fee requests on fraudulent transfer claim are governed by section 685.080 deadline. [Discussed in our July 11, 2014 post.]

     8. Kaufman v. Diskeeper Corp., 229 Cal.App.4^th 1 (Aug. 21, 2014) [2d Dist., Div. 4; authored by Manella, J.]: Party seeking recovery of Civil Code section 1717 fees does not need to file costs memorandum in addition to noticed motion for purposes of obtaining potential recovery. [Discussed in our Aug. 21, 2014 post.]

     7. In re Schwartz-Tallard, 765 F.3d 1096 (9^th Cir. Aug. 29, 2014, reissued opinion) [9^th Cir.; majority opinion authored by Huck, Circuit Judge and dissenting opinion authored by Wallace, Circuit Judge], order granting en banc hearing (9^th Cir. Dec. 19, 2014): Chapter 13 bankrupt debtor’s attorney’s fees incurred in the successful appellate defense of a bankruptcy court’s determination that a creditor violated the automatic stay were actual damages entitled to compensation under 11 U.S.C. § 362(k)(1); dissent found fees were not recoverable under past Sternberg v. Johnston, 596 F.3d 937 (9^th Cir. 2010) precedent. [Discussed in our April 17, 2014 and Aug. 29, 2014 posts.]

     6. Coalition for Adequate Review v. City and County of San Francisco, 229 Cal.App.4^th 1043 (Sept. 15, 2014) [1^st Dist., Div. 1; authored by Banke, J.]: Prevailing public agency can recover supplemental CEQA record preparation costs in administrative mandamus proceeding. [Discussed in our Sept. 17, 2014 post.]

     5. Indio Police Command Unit Assn. v. City of Indio, 230 Cal.App.4^th 521 (Sept. 15, 2014) [4^th Dist., Div. 3; authored by O’Leary, P.J.]: Code of Civil Procedure section 1021.5 private attorney general fee recovery can be obtained by a union under the right substantive showing, especially on the financial benefit element. [Discussed in our Sept. 17, 2014 post.]

     4. CB Richard Ellis, Inc. v. Terra Nostra Consultants, 230 Cal.App.4^th 405 (Oct. 7, 2014) [4^th Dist., Div. 3; authored by Ikola, J.]: Fee clause allowed prevailing party to recover fees from non-prevailing LLC members receiving wrongful distributions in de facto dissolution factual setting. [Discussed in our Oct. 9, 2014 post.]

     3. Mountain Air Enterprises, LLC v. Sundowner Towers, LLC, 2014 WL 6488418 (Nov. 20, 2014) [1^st Dist., Div. 2; majority opinion by Stewart, J. and dissenting opinion by Richman, J.]: “Action” language in fees clause was interpreted broadly to allow recovery of fees for successful novation defense, agreeing with Windsor and dissenting opinion in Gil. [Discussed in our Nov. 21, 2014 post.]

     2. David S. Karton, A Law Corporation v. Dougherty, 180 Cal.Rptr.3d 55 (Nov. 14, 2014) [2d Dist., Div. 1; authored by Rothschild, J.]: Client prevailing under routine costs statute entitled to mandatory award, disagreeing with Sears v. Baccaglio that costs decision is a discretionary one for lower court where mandatory entitlement basis exists. [Discussed in our Nov. 15, 2014 post.]

     1. Safari Associates v. Superior Court, 2014 WL 6778396 (Dec. 2, 2014) [4^th Dist., Div. 1; authored by Aaron, J.]: Arbitrator’s decision to apply Civil Code section 1717 “prevailing party” definition rather than narrower fees clause definition to fee entitlement issue during arbitration should not have been corrected by superior court in post-arbitration proceedings. [Discussed in our Dec. 2, 2014 post; also discussed in Dec. 2, 2014 post on Marc Alexander’s Cal. Mediation and Arbitration blog.]