Fee Entitlement Was Not Contested Below, So That Premise Carried On Appeal, Especially Given No Request That The Appellate Court Consider It As A Discretionary Matter.
Shin v. Chung, Case No. B301055 (2d Dist., Div. 4 Nov. 18, 2020) (unpublished), is a bleak reminder to contest fee entitlement at the trial court level; if you do not, the reviewing court may find there is a waiver on an entitlement issue which is far from settled in California. Also, even if you are behind on the waiver issue, ask the Court of Appeal to consider it as a discretionary matter, something not done on appeal in this matter.
Here, the trial judge awarded $103,950 to a creditor in a fraudulent transfer action under a “catchall” provision of the fraudulent conveyance statutes, despite the creditor asking for $158,508.90 in fees inclusive of a 1.5 multiplier. Losing parties prevailed, but the fee award was affirmed.
Appellants did not contest fee entitlement at the trial court level, although we bloggers can tell you there is no published California decision deciding if fees are allowable under the fraudulent transfer statutes and with many out-of-state court decisions saying no. Because this issue was not raised at the lower court level, it was waived. Appellants did not ask the reviewing court to consider it in discretionary fashion, an omission which sealed the result. With respect to the amount of the fee award, the supporting fee substantiation involved detailed time entries, by and large, such that the resulting sum was no abuse of discretion.
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