Year In Review – 2018

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

Artist Andrew Scott's stainless steel, 30-foot-long gavel outside the Thomas J. Moyer Ohio Judicial Center

Part 1 of 2—CCP §998, Civil Code § 1717, Civil Rights, Sanctions, And Ethics Dominated First Batch.

            As is traditional during the Holidays, we choose the top attorney’s fees/costs published cases which we deem worthy of a year-end wrap up review. They cut across numerous issues, and we do not intend to denigrate at all the numerous other decisions which were written in these areas—with readers able to find them easily by searching our home page under the “Categories” or “Archives” headings. Here are the first 13 decisions for the 2018 wrap up:

25. HOMEOWNER ASSOCIATIONS – Artus v. Gramercy Towers Condominium Assn., 19 Cal.App.5^th 923 (1^st Dist., Div. 1 Jan. 24, 2018) –authored by Justice Banke; discussed in our Jan. 28, 2018 post: Interim successes by homeowner against homeowner association did not allow homeowner an entitlement to an award of fees under the Davis-Stirling Act.

24. CIVIL RIGHTS – Bustos v. Global P.E.T., Inc., 19 Cal.App.5^th 558 (4^th Dist., Div. 2 Jan. 16, 2018) – authored by Justice Codrington; discussed in our Jan. 16, 2018 and Dec. 22, 2017 posts: Plaintiff obtaining a favorable vote on one jury question, but losing on causation issue, was not entitled to FEHA fee recovery.

23. ALLOCATION/FEE CLAUSE INTERPRETATION/ SECTION 1717 – Burkhalter Kessler Clement & George LLP v. Hamilton, 19 Cal.App.5^th 38 (4^th Dist., Div. 3 Jan. 8, 2018) – authored by Justice Moore, discussed in our Jan. 9, 2018 post: There can be more than one prevailing party where plaintiff prevailed against a limited liability partnership defendant but lost against alter ego defendant, although apportionment of work required where defendants were jointly represented.

22. CIVIL RIGHTS/SECTION 998 – Arave v. Merrill Lynch, Pierce, Fenner & Smith, 18 Cal.App.5^th 1098 (4^th Dist., Div. 2 Jan. 2, 2018) – authored by Justice Slough; discussed in our Jan. 2, 2018 post: Appellate court denied defense expert witness costs as against unsuccessful FEHA plaintiff rejecting a CCP § 998 offer in a nonfrivolous FEHA case, departing company from contrary reasoning in 1/5 DCA and 4/1 DCA decisions. [NOTE: Arave was found persuasive in one of our upcoming top 25 decisions on this split of opinion, see Huerta v. Kava Holdings, Inc., 2018 W 5999639, a 2/8 DCA published opinion issued in November 2018].

21. PREVAILING PARTY/SECTION 1717 – Marina Pacifica Homeowners Assn. v. Southern California Financial Corp., 20 Cal.App.5^th 191 (2d Dist., Div. 8 Feb. 5, 2018) – authored by Justice Grimes; discussed in our Feb. 6, 2018 post: No attorney’s fees awarded to either side where no clear winning prevailing party under Civil Code § 1717 because homeowner did not completely rid a transfer fee but HOA only got 10% of FMV valuation; settlement communications could not be used in determining whether one side prevailed or not for “prevailing party” analysis.

20. SECTION 998 – Gonzalez v. Lew, 20 Cal.App.5^th 155 (2d Dist., Div. 3 Feb. 1, 2018) – authored by Justice Lavin; discussed in our Feb. 3, 2018 post: CCP § 998 joint offer to multiple plaintiffs was not invalid in dispute between both sets of plaintiffs’ heirs and owners of a house. (California Supreme Court denied a petition for review on May 9, 2018.)

19. SANCTIONS – Nutrition Distribution, LLC v. Southern SARMS, Inc., 20 Cal.App.5th 117 (2d Dist., Div. 7 Jan. 31, 2018) – authored by Presiding Justice Perluss; discussed in our Feb. 3, 2018 post: CCP § 128.5 sanctions are not appropriate unless moving party satisfies CCP § 128.7’s “safe harbor” protections, disagreeing with contrary conclusion by 4/1 DCA in San Diegans for Open Government v. San Diego, 247 Cal.App.4^th 1306, 1317 (2016). [NOTE: A different panel of the 4/1 DCA, in the recent December 2018 decision of CPF Vaseo Associates LLC v. Gray agreed with Nutrition Distribution and disagreed with San Diegans, which we will review later in the remainder of our top 25 decisions].

18. ETHICS/EQUITY/RETAINER AGREEMENTS – Heller Ehrman LLP v. Davis Wright Tremaine LLP, 4 Cal.5^th 467 (Cal. Supreme Ct. Mar. 5, 2018) – authored by Justice Cuellar; discussed in our March 8, 2018 post: Dissolved law firm has no property interest in legal matters handled on an hourly basis and has no interest in profits generated by former partners’ work on hourly matters pending at the time of the firm’s dissolution; court refused to decide if Jewel v. Boxer is still applicable to contingency matters.

17. SECTION 1717 – Shapira v. Lifetech Resources, 22 Cal.App.5^th 429 (2d Dist., Div. 4 Apr. 17, 2018) – authored by Justice Collins; discussed in our Apr. 20, 2018 post: Litigant does not face Civil Code § 1717 fee exposure where litigant voluntarily dismisses with prejudice pending matter after trial, under submission, but before any merits decision comes down.   

16. CONSTRUCTION – United Rigger & Erectors, Inc. v. Coast Iron & Steel Co., 4 Cal.5^th 1082 (Cal. Supreme Ct. May 14, 2018) –authored by Justice Cuellar; discussed in our May 15, 2018 post: Construction prompt payment statutes only relate, for penalties and fee exposure, to the relevant payment dispute rather than a more generalized non-retention construction dispute.

15. ETHICS – Sheppard, Mullin, Richter & Hampton v. J-M Mfg. Co., Inc., 6 Cal.5^th 59 (Cal. Supreme Ct. Aug. 30, 2018) – authored by Justice Kruger; discussed in our Aug. 31, 2018 post: Contractual fee recovery is not allowable to law firm with undisclosed conflict of interest, which was not cured by boilerplate conflict waiver from challenging party; however, the matter was remanded to see if the ethical violation was egregious enough to prevent quantum meruit recovery.

14. PROBATE – Powell v. Tagami, 26 Cal.App.5^th 219 (4^th Dist., Div. 1 Aug. 15, 2018) – authored by Presiding Justice McConnell; discussed in our Aug. 9, 2018 and Aug. 16, 2018 posts: Probate compensation allowed for mediation work, personal litigant work, and accounting objector work where unwarranted ad hominem attacks were levied against opposing siblings and their attorneys.

13. COSTS – LAUSD Asbestos Cases, 25 Cal.App.5^th 1116 (2d Dist., Div. 4 Aug. 8, 2018) – authored by Justice Collins; discussed in our Aug. 9, 2018 post): Ability to pay does not enter into determination of whether CCP § 1032 routine costs are assessed against a party, even against a likely more impecunious plaintiff in an asbestos lawsuit. (California Supreme Court denied review on November 20, 2018.)