As we have done in past years, wishing all readers the happiest of Holidays, we now present our top 30 published decisions from California appellate courts, the United States Supreme Court (SCOTUS), and the Ninth Circuit for the 2016 year. For past years, we have done a “Top 20,” but this year was especially prolific for decisions involving attorney’s fees/costs issues. This list is not meant to slight other important decisions in certain areas, but these are the ones that “rose to the top” from our perspective. We will post 15 today and 15 in an ensuing post after we let the year run down. The number of ranking is not geared at all to the decision’s relative importance, and we do not mean to overlook other published decisions—not to mention the wealth of unpublished decisions on fees/costs issues. Here we go on the first 15, with some of them pending issuance of a decision, after a grant of review, by the California Supreme Court.
30. ARBITRATION/ETHICS--Sheppard, Mullin v. J-M Mfg. Co., 244 Cal.App.4th 590 (2d Dist., Div. 4 Jan. 29, 2016), rev. granted, S232946 (Cal. Supreme Ct. Apr. 27, 2016)—authored by Justice Collins; discussed in our Jan. 30, 2016 post: Attorneys having “simultaneous representation” conflict of interest presented a situation rendering an arbitration award to attorneys illegal in nature. The issues presented for review by the California Supreme Court are framed this way: “(1) May a court rely on non-legislative expressions of public policy to overturn an arbitration award on illegality grounds? (2) Can a sophisticated consumer of legal services, represented by counsel, give its informed consent to an advance waiver of conflicts of interest? (3) Does a conflict of interest that undisputedly caused no damage to the client and did not affect the value or quality of an attorney’s work automatically (i) require the attorney to disgorge all previously paid fees, and (ii) preclude the attorney from recovering the reasonable value of the unpaid work?”
29. EMPLOYMENT--USS-Posco Industries v. Case, 244 Cal.App.4th 197 (1st Dist., Div. 1 Jan. 26, 2016)—authored by Justice Banke; discussed in our Jan. 30, 2016 post: Amended Labor Code section 218.5, which only allows fees to prevailing employer showing a wage action was brought in bad faith, applied to subsequent, post-judgment fee motion against non-prevailing plaintiff even though a broader, more liberal fee shifting statute applied at the time of judgment.
28. PRIVATE ATTORNEY GENERAL-San Diego Municipal Employees Assn. v. City of San Diego, 244 Cal.App.4th 906 (4th Dist., Div. 1 Feb. 9, 2016)—authored by Judge Prager (sitting as a pro tem justice); discussed in our Feb. 10, 2016 post: Intervenors whose work was secondary to main work by other parties were not entitled to fee recovery under California Code of Civil Procedure section 1021.5’s (private attorney general statute’s) “necessity” element.
27. BANKRUPTCY--Bos v. Board of Trustees, 818 F.3d 486 (9th Cir. Mar. 24, 2016)—joint opinion by Circuit Judges O’Scannlain and Ikuta as well as District Judge Burns (sitting by assignment); discussed in our Mar. 28, 2016 post: Prevailing party in bankruptcy non-dischargeability action is not entitled to recover fees under either California Civil Code section 1717 or ERISA’s fee shifting provision.
26. APPEALABILITY/CLASS ACTION--Hernandez v. Muller (Restoration Hardware, Inc.), 245 Cal.App.4th 651 (4th Dist., Div. 1 Mar. 14, 2016), rev. granted, S233983 (Cal. Supreme Ct. June 22, 2016)—authored by Justice McDonald; discussed in our Mar. 19, 2016 post: Objecting class members have no standing to appeal an attorney’s fees award unless the unnamed class members intervene in the case. The issue presented for California Supreme Court review is: “Must an unnamed class member intervene in the litigation in order to have standing to appeal? (See Eggert v. Pac. States S. & L. Co. (1942) 20 Cal.2d 199.)”
25. COSTS/PREVAILING PARTY/SETTLEMENT--DeSaulles v. Community Hospital of the Monterey Peninsula, 62 Cal.4th 1140 (Cal. Supreme Ct. Mar. 10, 2016)—authored by Justice Liu; discussed in our Mar. 19, 2016 post: Voluntarily dismissing plaintiff who received settlement money from a defendant was the prevailing party for purposes of a Code of Civil Procedure section 1032(a)(4) routine costs award unless the parties provided otherwise in the settlement agreement.
24. SECTION 998--Toste v. CalPortland Construction, 245 Cal.App.4th 362 (2d Dist., Div. 6 Mar. 2, 2016)—authored by Justice Yegan; discussed in our Mar. 5, 2016 post: 2015 amendment to Code of Civil Procedure section 998, which specified that rejecting plaintiff is only exposed to post-offer expert witness costs, applied to cases pending on appeal which challenged a section 998 award, likely requiring remands.
23. REASONABLENESS OF FEES/STANDARD OF REVIEW--Mountjoy v. Bank of America, N.A., 245 Cal.App.4th 266 (3d Dist. Feb. 29, 2016)—authored by Acting Presiding Justice Robie; discussed in our Mar. 1, 2016 post: 70% across-the-board fee reduction by trial judge from fee request reversed because such a broad brush decrease required a more nuanced approach and more specific explanation of the reduction; trial judge allowed to “cross check” reasonableness of prevailing party’s fee request based on the fees expended by the opposing party in proper situations.
22. CLASS ACTION/SUBSTANTIATION OF REASONABLENESS OF FEES—Yamada v. Nobel Biocare Holding AG, 821 F.3d 1058 (9th Cir. Apr. 20, 2016)—authored by District Judge Marbley (sitting by assignment); discussed in our Apr. 21, 2016 post: Defense had the right to review time sheets submitted in camera to court in class action fee proceeding, even though privileged information could be redacted in the fee submission to the district judge by class counsel.
21. COSTS—Charton v. Harkey, 247 Cal.App.4th 730 (4th Dist., Div. 3 May 24, 2016)—authored by Justice Aronson; discussed in our May 24, 2016 post: “Unity in interest” exception allowing trial courts discretion to deny routine costs to prevailing defendant when several non-prevailing co-defendants are unified in interest was no longer viable after a legislative repeal of former Code of Civil Procedure section 1032; 75% mathematical reduction in routine costs request based on number of total defendants was improperly overbroad methodology to utilize in the matter.
20. PROBATE—Conservatorship of Bower, 247 Cal.App.4th 495 (4th Dist., Div. 3 cert. for publication May 16, 2016)—authored by Justice Bedsworth; discussed in our April 16, 2016 post prior to publication: Probate Code section 1089 did not allow probate judge to divide community property to pay for conservatorship fees, with any award guided instead by Probate Code sections 2640 and 2647.
19. EMPLOYMENT (PUBLIC)—Daza v. L.A. Community College, 247 Cal.App.4th 260 (2d Dist., Div. 8 May 6, 2016)—authored by Justice Flier; discussed in our May 8, 2016 post: Public employees seeking costs of defense under Government Code section 996.4 must be allowed to present proof outside the mere pleadings to rebut employer’s “outside the scope of employment” defense to reimbursing employee’s defensively-incurred attorney’s fees.
18. LANDLORD/TENANT and LIENS FOR ATTORNEYS FEES—Crasnick v. Marque & Diaz, 248 Cal.App.4th Supp. 1 (L.A. Superior Ct. Appellate Div. May 24, 2016)—authored by Judge Ricciardulli; discussed in our June 5 and June 24, 2016 posts: Tenants’ fee award subject to contractual attorney’s lien was properly not offset by landlord’s subsequent judgments against tenants in other matters.
17. PROBATE—Butler v. LeBouef, 248 Cal.App.4th 198 (2d Dist., Div. 6 June 20, 2016)—authored by Justice Yegan; discussed in our June 21, 2016 post: Attorney drafter of will/living trust is liable for attorney’s fees incurred by beneficiaries under Probate Code section 21380(d); beneficiaries won $1,256,971 in fees against drafter attorney.
16. INTELLECTUAL PROPERTY—Kirtsaeng dba Blue Christine99 v. John Wiley & Son, 579 U.S. __, 136 S. Ct. 1538, 2016 WL 3317564 (U.S. June 16, 2016)—authored by Justice Kegan; discussed in our June 16, 2016 post: SCOTUS clarifies factors to be weighed for purposes of awarding discretionary fees to prevailing party under Copyright Act’s fee shifting provision (17 U.S.C. § 505).