December 2018

Consumer Statutes: Denial Of Fee Award To Prevailing Defendant Under Consumer Deceptive Practice Fee-Shifting Statute Reversed And Remanded Because Prosecution Of An Action By Consumer In Bad Faith Encompasses Both Filing and Pursuit Of The Action

Cases: Consumer Statutes

Lower Court Improperly Denied Request In Finding Statute Only Applied To Filing Of An Action.            In Holloway v. Alliance Environmental Group, Case No. E066365 (4th Dist., Div. Dec. 20, 2018) (unpublished), plaintiff was defensed after a 7-week jury trial which she brought against a testing company and abatement company in a residential asbestos abatement […]

Request For Admissions: $313,000 Fee And $300,000 Expert Costs Awards Under RFA Costs-Of-Proof Sanctions Provision Reversed As Reasonable Basis Existed For Some Denials And Expert Costs Not Properly Authenticated Or Competently Introduced Into Evidence

Cases: Requests for Admission

4/1 DCA Decision, Although Unpublished, Suggests That Attorneys And Experts Should Correlate Their Time To Specific RFA Work So It Can Be Properly Allocated.             Orange County Water Dist. v. The Arnold Engineering Co., Case No. D070763 (4th Dist., Div. 1 Dec. 19, 2018) (unpublished) is an RFA costs-of-proof sanctions battle arising out of the

Allocation, Section 998, Trespass: 4/1 DCA Affirms Award Of $289,153.75 In Fees Under CCP § 1021.9 To Plaintiff Who Used Land For Intended Nursery Plantings As Against Neighboring Rock Quarry

Cases: Allocation, Cases: Section 998, Cases: Trespass

Section 1021.9 Applies To Land Characteristic As A Whole, Not Just Portion Of Land Trespassed Upon; Pre-Offer Fees And Costs Did Not Disturb The Result Under CCP § 998.             In Hoffman v. Superior Ready Mix Concrete, L.P., Case No. D072929 (4th Dist., Div. 1 Dec. 19 2018) (published), plaintiff owned property intended to be

Indemnity, Equity: Trial Judge Properly Denied Substantial Fees To Prevailing Party Where Contractual Clause Was Indemnity Clause And New Fee Entitlement Arguments Were Presented In Supplemental Briefing Beyond What Was Granted By Lower Court

Cases: Equity, Cases: Indemnity

Supplemental Evidence Was Properly Not Considered In The Trial Judge’s Discretion.             If the lower court grants you supplemental briefing, make sure you do so in line within the scope of the supplemental briefing allowed by the trial judge. MetLife Securities, Inc. v. Brandt, Case No. B282949 (2d Dist., Div. 3 Dec. 18, 2018) (unpublished)

Appealability: Appellate Challenge To Defense Fee Award Under CAR Form Contract Could Not Be Considered

Cases: Appealability

Post-Judgment Fee Proceeding Considered Both Entitlement And Amount, So Failure To Mention Fee Award In Notice Of Appeal Was Fatal.             Sanders v. Chun, Case No. B284704 (2d Dist., Div. 4 Dec. 18, 2018) (unpublished) demonstrates a lesson we have posted on many times before: protectively appeal a post-judgment fee order even if might be

Costs: Defendant Winning One Dollar In Heavily Contested Case Was The Prevailing Party With Net Monetary Recovery For Purposes Of Routine Costs Award

Cases: Costs

Loser Provided No Authority That Pre-Litigation Payments Could Be Factored Into The Costs Calculus.        Young Man Deposits Dollar Bill at Bank Teller's Window                 Defendant in a heavily contested contract case won $1 on its contract claim against a non-prevailing party. That was enough to justify an award of routine costs of the defendant

Appealability, SLAPP: Litigant’s Failure To Identify Fee Award In Notice Of Appeal Prevented Appellate Court From Entertaining The Challenge

Cases: Appealability, Cases: SLAPP

Appellate Court Did Note Split On Appealability Issue Which Was Unnecessary To Resolve.             A litigant only appealed a SLAPP ruling, never mentioning a fee award as also being challenged in the notice of appeal. That made it an easy call for the 2/8 DCA in Mostafavi v. Kingsley, Case No. B286081 (2d Dist., Div.

Sanctions: $12,000 In CCP § 128.5 Sanctions Were No Abuse Of Discretion For Unsuccessful Disqualification Motion On The Eve Of Trial

Cases: Sanctions

“Safe Harbor” Argument Might Have Worked, But It Was Waived Because Only Raised In Appellant’s Reply Brief.             Hanna v. City of Long Beach, Case No. B281878 (2d Dist., Div. 3 Dec. 17, 2018) (unpublished) shows how good arguments can be lost if not timely raised. In this one, City and its counsel were jointly

Appeal Sanctions, Requests For Admission: Litigant’s Failure To Show Why Costs-Of-Proof Sanctions Were Erroneous Drew Appeal Sanctions Of $32,960.70

Cases: Appeal Sanctions, Cases: Requests for Admission

We See A Growing Trend Of Appellate Sanctions In Recent Cases.             Appellant in Knudson v. Ryer, Case No. A149532 (1st Dist., Div. 5 Dec. 17, 2018) (unpublished) failed to show why RFA costs-of-proof sanctions under CCP § 2033.420 should be reversed based on deficient analysis in the appellate briefing. That led the DCA to

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