Additionally, Remand Made To Include Bankruptcy Efforts And Provide A Better Explanation Of 50% Fee "Haircut".
Roth v. Plikaytis, Case No. D070484 (4th Dist., Div. 1 Sept. 13, 2017) (partially published) is a situation where defendant prevailed on a breach of contract action allowing fee entitlement (after a jury trial), but where the trial court only awarded $139,750 out of a requested $442,622.78 in contractual attorney’s fees and reduced the claimed lodestar hours by 50% after eliminating recovery for bankruptcy efforts. During the fees proceedings, the trial judge refused to credit hourly rates contained in defense declarations filed in support of a prior motion for defense fees in the case which was denied without prejudice.
The 4/1 DCA reversed and remanded for reconsideration of the fee award.
In the published portion of the decision, the appellate court—in a holding instructive in all law and motion hearings—determined that the prior motion declarations should have been considered in the subsequent fee hearing. After reconciling various California Rules of Court and principles relating to summary judgment/adjudication motions, the 4/1 DCA concluded that there was no reason to justify the trial judge in failing to consider previously filed materials in a law-and-motion fee proceeding.
Going to the unpublished portion of the opinion, the appellate court determined there were two errors in the trial judge’s fee decision. The first was failure to allow compensation for bankruptcy court efforts relating to the breach of contract claim brought by losing plaintiff. (Circle Star Center Associates, L.P. v. Liberate Technologies, 147 Cal.App.4th 1203, 1208 (2007); Chinese Yellow Pages Co. v. Chinese Overseas Marketing Service Corp., 170 Cal.App.4th 868, 882, 884-885 (2008).) In doing so, the appellate court disagreed with a contrary Ninth Circuit decision, finding it distinguishable and not adopting its reasoning in any event. The second reason for a remand was the dearth of explanation for the significant 50% “haircut” in lodestar hours, carefully explaining that the explanation was not adequate under the circumstances of the case.
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