Year In Review – 2018

Year End Wrap-Up: Mike & Marc’s Top 25 Decisions In 2018

Part 2 of 2—Employment Issues, Lender Trust Deed Fee Clauses, Fees As Damages, Section 998, And Sanctions Dominated The Second Batch Of Our Top 25.

            In line with our prior post on some of the Top 25 decisions, we now round out with the 12 additional decisions. If other decisions come out after this post that are significant, we will include them in the 2019 top cases. Happy Holidays to our readers!

12. EMPLOYMENT – Nishiki v. Danko Meredith P.C., 25 Cal.App.5^th 883 (1^st Dist., Div. 4 Aug. 1, 2018) – authored by Justice Schulman; discussed in our Aug. 3, 2018 post: Employer is liable for significant employee fees of $86,160 under Labor Code section 98.2(c) even though only $4,250 in waiting time penalties awarded by Labor Commissioner and superior court after Berman hearing. (California Supreme Court denied review on Nov. 14, 2018.)

11. EMPLOYMENT – Atempa v. Pedrazzani, 27 Cal.App.5^th 809 (4^th Dist., Div. 1 Sept. 28, 2018) – authored by Justice Irion; discussed in our Sept. 30, 2018 post: Individual officer/agent of corporate employer can be held liable for attorney’s fees under PAGA (Labor Code § 2699(g)) for certain wage/hour violations. (Petition for review filed and pending as of Nov. 7, 2018 with the California Supreme Court.)

10. DEEDS OF TRUST – Chacker v. JPMorgan Chase Bank, N.A., 27 Cal.App.5^th 751 (2d Dist., Div. 5 Sept. 19, 2018) – authored by Justice Baker; discussed in our Sept. 20, 2018 post and Hart v. Clear Recon Corp., 27 Cal.App.5^th 322 (2d Dist., Div. 8 Sept. 18, 2018) – authored by Justice Rubin; discussed in our Sept. 19, 2018 post: Narrow deed of trust provisions only allowed recovery of fees incurred by lender which could be added to loan amounts due by borrowers, but these provisions did not allow for independent fee award over the deed of trust limitations.

9. DAMAGES/SUBSTANTIATION OF REASONABLENESS OF FEES – Copenbarger v. Morris Cerullo World Evangelism, Inc., 29 Cal.App.5^th 1 (4^th Dist., Div. 3 Nov. 13, 2018) – authored by Justice Fybel and discussed in our Oct. 20, 2018 post and Nov. 13, 2018 post: Attorney’s fees sought as damages for a contractual breach had to be proven at trial through admissible evidence, with presentation of client’s testimony alone not able to competently show verification or reasonableness of counsel’s work, reversing trial court’s admission of client’s testimony and overturning the judgment as a matter of law.

8. SECTION 998 – Martinez v. Eatlite One, Inc., 27 Cal.App.5^th 1181 (4^th Dist., Div. 3 Oct. 3, 2018) – authored by Justice Ikola and discussed in our Oct. 3, 2018 post: Although calling for legislative clarification of the statute, section 998 requires a trial court to compare the jury’s verdict plus plaintiff’s pre-offer fees/costs against the amount of the 998 offer plus plaintiff’s pre-offer fees/costs in determining whether plaintiff received a more favorable judgment for fees/costs shifting purposes.

7. SANCTIONS -- Huerta v. Kava Holdings, Inc., 29 Cal.App.5^th 74 (2d Dist., Div. 8) – authored by Orange County Superior Court Judge Kim Dunning (sitting by assignment) and discussed in our Nov. 17, 2018 post: Panel followed Agave v. Merrill Lynch, Pierce, Fenner & Smith, 18 Cal.App.5th 1098 (2018) [#22 of our Top 25 Cases for 2018] in deciding that FEHA plaintiffs in pre-2019 cases do not face costs/fees exposure where a CCP § 998 offer was involved unless the case filing/prosecution is found to be frivolous in nature, finding a legislative amendment effective January 1, 2019 to be persuasive with respect to its conclusion.

6. COSTS/EMPLOYMENT – Quiles v. Parent, 28 Cal.App.5^th 100 (4th Dist., Div. 3 Nov. 2, 2018) – authored by Justice Fybel and discussed in our Nov. 6, 2018 post: In a Federal Labor Standards Act (FLSA) action, plaintiff was entitled to recovery of certain routine costs under the federal statute even though not recoverable under state law costs provisions when plaintiff prevailed on FLSA claims.

5. TAXATION – Land Partners, LLC v. County of Orange, 19 Cal.App.5^th 741 (4^th Dist., Div. 3 Jan. 22, 2018) – authored by Justice Ikola and discussed in our Jan. 16, 2018 post and Jan. 24, 2018 post: Losing County tax assessor is not subject to Revenue and Taxation Code § 5152 fee exposure in taxpayer refund action where assessor only wrongly applied the law.

4. ARBITRATION/COSTS – EHM Productions, Inc. v. Starline Tours of Hollywood, Inc., 21 Cal.App.5^th 1058 (2d Dist., Div. 2 Mar. 28, 2018) – authored by Justice Chavez and discussed in our Mar. 30, 2018 post: Incremental costs award process used during the course of an arbitration, after a JAMS appellate panel confirmed the merits award, did not violate the one judgment rule, waiver, or estoppel principles.

3. SECTION 998 – Meleski v. Estate of Hotlen, 2018 WL 6241504 (3d Dist. Nov. 29, 2018) – authored by Acting Presiding Justice Blease and discussed in our Dec. 6, 2018 post: Non-named insurance carrier is liable for CCP § 998 costs after rejecting 998 offer on behalf of its insured when the insured did not do better than the 998 offer after a jury trial.

2. INTELLECTUAL PROPERTY/PREVAILING PARTY – Close v. Sotheby’s, Inc., No. 16-56234 (9^th Cir. Dec. 3, 2018) – per curiam order and discussed in our Dec. 4, 2018 post: Defendants prevailing on attorney’s fees compensable-California Resale Royalties Act claims based on preemption grounds, despite existence of non-compensable, remaining “sliver” claims, were prevailing parties under the fee-shifting provision despite the existence of some residual claims for purposes of applying for appellate fees.

1. SANCTIONS -- CPF Vaseo Associates, LLC v. Gray, 2018 WL 6380742 (4^th Dist., Div. 1 Dec. 6, 2018) – authored by Justice Dato and discussed in our Dec. 6, 2018 post: Panel decided that 4/1 DCA’s prior decision in San Diegans for Open Government v. City of San Diego, 247 Cal.App.4^th 1306 (2016) was incorrect and followed the reasoning by the 2/8 DCA in Nutrition Distribution, LLC v. Southern SARMS, Inc., 20 Cal.App.5^th 117 (2018) [#19 of our Top 25 Decisions for 2018], concluding that parties moving for CCP § 128.5 sanctions must satisfy the 21-day “safe harbor” requirements of CCP § 128.7.