Postjudgment Fees Also Reversed, But Expert Witness Fees Sustained Based On Failure To Separate Appeal The Postjudgment Award.
In Kayne v. Mense, Case No. B254975 (2d Dist., Div. 1 Mar. 25, 2016) (unpublished), defendants were found to have breached a fiduciary duty to plaintiff (giving rise to compensatory and punitive damages) and found to have violated Penal Code section 496(a)—a stolen goods provision--by embezzling money owed plaintiff under a contract with a $750,000 fabric advance. Because Penal Code section 496(c) allows for treble damages, attorney’s fees, and costs, the trial judge later awarded $1.15 million in fees and costs to plaintiff. (The judgment for plaintiff included about $3 million for compensatory damages and civil penalties and $750,000 in punitive damages, which did not include the costs and attorney’s fees award, derived from a jury verdict.) The trial judge also awarded $114,055.50 in postjudgment fees under CCP § 685.040 based on bankruptcy work against defendants resulting in the dismissal of their bankruptcy petitions.
On appeal, the compensatory/treble damages award and fees award under Penal Code section 496 went POOF! based on the determination that this provision did not apply to an ordinary contractual dispute arising in the course of an ongoing, legitimate business relationship between the parties. The 496 determination on review also eliminated entitlement to the $114,055.50 fee award under § 685.040. Finally, because the defense did not separately appeal a post-trial expert witness fee award of a discretionary nature, plaintiff retained this award because the appellate court lacked jurisdiction to review it.
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