Special Fee Shifting Statute: Trial Court Did Not Abuse Its Discretion In Awarding $95,000 in Attorney’s Fees To Plaintiff Under CCP 1021.4, Discretionary Fee-Shifting Provision Where Civil Cases Involves Defendant’s Felony Offense(s).

Plaintiff Requested $1.3 Million In Fees, But Trial Court Found Lack Of Success Required Steep Discount And No 1.75 Positive Multiplier Justified Where Case Was Not Novel/Was Not That Difficult.

            Defendant was found liable on several (4) tort counts for sexually abusing his niece when she was between 8-10 (the plaintiff). Before trial, the defense stipulated to the four felony offenses, but plaintiff sought over $12 million in damages for various counts not proven. Instead, the jury awarded plaintiff $90,000 in compensatory damages and a $300,000 punitive damages award which was reversed and remanded on appeal just as far as the punitive award. Plaintiff then moved for $1.3 million in fees (which apparently included a 1.75 positive multiplier), opposed by the defense when suggesting only $10,000 was reasonable in nature. Plaintiff moved under CCP § 1021.4, which is fee-shifting statutes allowing the court discretion to award reasonable fees to a plaintiff where damages are based on felony offense(s). The trial judge awarded only $95,000 in fees, prompting an appeal by plaintiff.

            The fee award was affirmed as no abuse of discretion in B.C. v. Cottone, Case No. G051967 (4^th Dist., Div. 3 May 24, 2018) (unpublished), authored by Justice Aronson (Acting Presiding Justice Moore partially dissented because she would have kept the punitive award also intact).

            In doing so, the appellate court relied on (1) the lack of success, given the disparity in damages requested and damages awarded as well as the fact the defense stipulated to the four felony offenses resulting in a verdict as compared to numerous other unsuccessful counts; and (2) plaintiff failure to apportion fees between successful and unsuccessful claims, even though her counsel never showed it was impossible or impractical to do so.   With respect to plaintiff’s multiplier request, the record did show that the lower court ignored the fact the case was taken on contingency and, additionally, the appellate court agreed with the lower’s court observation that the case was not novel or that difficult.