Year In Review - 2020

Year End Wrap-Up:  Mike, Marc, and Shanna’s Top 30 Decisions in 2020

Sculpture "The Decisions" at the Robert T. Matsui U.S. Courthouse, Sacramento, California.  Carol M. Highsmith, photographer.  October 2009.  Library of Congress.

Part 2 of 2—Specific Fee Shifting Statute, Employment, Code of Civil Procedure Section 998, Civil Code Section 1717, and Sanctions Issues Dominated.

            We now complete our Top 30 decisions for the 2020 year on fees and costs issues.  Here is looking forward, optimistically, to a better 2021 for all of our readers.  However, enjoy the rest of our Top 30 decisions.

            15.  EMPLOYMENT.  Betancourt v. OS Restaurant Services, LLC, 49 Cal.App.5^th 240 (Cal. App. 2d Dist., Div. 8 May 21, 2020 certified for publication)—authored by Justice Grimes, discussed in our May 1, 2020 post when the opinion was unpublished:  Rest/meal break and associated penalties do not give rise to attorney’s fees entitlement under the Labor Code because they are not pure wage/hour violations, resulting in reversal of a $280,794 fee award as a matter of law.

            14.  COSTS—REVIEW GRANTED BY CALIFORNIA SUPREME COURT.  Segal v. ASICS America, 50 Cal.App.5^th 659 (Cal. App. 2d Dist., Div. 4 June 15, 2020), rev. granted, No. S263569 (Cal. Supreme Court Sept. 30, 2020)—authored by Justice Currey at the DCA level, discussed in our June 16, 2020 post:  Appellate court decided that a “pragmatic approach” should be applied when deciding whether a prevailing party can recover for trial exhibits and closing slides that were never used at trial, siding with one side in a split of appellate thinking on the issue.  The California Supreme Court limited review to this issue: “May a party recover costs for multiple sets of trial exhibits and closing slides that were not used at trial?”

            13.  SPECIAL FEE SHIFTING STATUTE (ELDER ABUSE).  Arace v. Medico Investments, LLC, 48 Cal.App.5^th 977 (Cal. App. 4^th Dist., Div. 2 May 11, 2020 certified for publication)—authored by Justice McKinster, discussed in our Mar. 25, 2020 post when the decision was unpublished:  Jury’s determination that defendants were liable for financial elder abuse mandated fee recovery under Welfare & Institutions Code section 15657.5(a) even though no damages were awarded. 

            12.  SECTION 1717 (ALTER EGO).  MSY Trading, Inc. v. Saleen Automotive, Inc., 51 Cal.App.5^th 395 (Cal. App. 4^th Dist., Div. 3 June 26, 2020)—authored by Justice Ikola, discussed in our June 30, 2020 post:  Defendant prevailing in post-judgment enforcement action attempting to add defendant as an alter ego was entitled to a contractual attorney’s fees award under Civil Code section 1717 against plaintiffs.  See also 347 Group, Inc. v. Philip Hawkins Architect, Case No. C091273 (Cal. App. 3d Dist. Dec. 7, 2020)—authored by Justice Robie, discussed in our December 8, 2020 post:  Third District agreed with the alter ego fee analysis in MSY Trading.

            11.  SUBSTANTIATION OF REASONABLENESS OF FEES.  Taylor v. County of Los Angeles, 50 Cal.App.5^th 205 (Cal. App. 2d Dist., Div. 8 June 10, 2020)—authored by Justice Wiley, discussed in our June 11, 2020 post:  Reconstructed time records are entitled to diminished credibility weight as compared to contemporaneous records when it comes to examining fee substantiation.

            10.  SECTION 998.  Burchell v. Faculty Physicians & Surgeons of the Loma Linda University School of Medicine, 54 Cal.App.5^th 515 (Cal. App. 4^th Dist., Div. 2 Sept. 10, 2020)—authored by Justice Raphael, discussed in our Sept. 11, 2020 post:  In a joint and several liability case involving multiple defendants, plaintiff must provide separate acceptance lines for each defendant where a multiple Code of Civil Procedure section 998 offer is made in order to make the pretrial settlement offer valid.

            9.  DEADLINES.  Nutrition Distribution LLC v. IronMag Labs, LLC, 972 F.3d 1088 (9^th Cir. Aug. 25, 2020)—authored by Circuit Judge Bress, discussed in our Aug. 26, 2020 post:  Filing a post-judgment attorney’s fees motion, absent a district court’s extension of the appeal deadline or a decision to treat the fee motion as a Federal Rule of Civil Procedure, rule 59 motion, does not extend the 30-day deadline to file a merits judgment appeal.

            8.  SPECIAL FEE SHIFTING STATUTE (PARNERSHIP BUYOUT DISPUTE).  Jones v. Goodman, 2020 WL 6736235 (Cal. App. 4^th Dist., Div. 1 Nov. 17, 2020)—authored by Justice Guerrero, discussed in our Nov. 18, 2020 post:  Corporations Code section 16701’s partnership buyout fee shifting provision is discretionary and is invoked only when a plaintiff’s claims objectively lack merit or were subjectively pursued in bad faith (or both).

            7.  RETAINER AGREEMENTS/TRADE SECRETS.  Aerotek, Inc. v. Johnson Group Staffing Co., Inc., 54 Cal.App.5^th 670 (Cal. App. 3d Dist. Sept. 15, 2020)—authored by Acting Presiding Justice Blease, discussed in our Sept. 16, 2020 post:  An attorney’s fees award under California’s Trade Secret Act, Civil Code section 3426.4, belongs to the attorney, not the client, in the absence of an express fee agreement dictating otherwise. 

            6.  CLASS ACTIONS.  Chambers v. Whirlpool Corp., 2020 WL 6578223 (9^th Cir. Nov. 10, 2020)—authored by Circuit Judge Lee, discussed in our Nov. 11, 2020 post:  Percentage-of-value approach governs a coupon component of a Class Action Fairness Act (CFAA) settlement, and the lodestar approach governs the non-coupon settlement component, but the lodestar approach can be applied in a hybrid settlement if certain adjustments are made by the district judge.

            5.  EMPLOYMENT.  Cruz v. Fusion Buffet, Inc., 2020 WL 6559229 (Cal. App. 4^th Dist., Div. 1 Nov, 9, 2020 certified for publication), pet’n for review filed, No. S265682 (Cal. Supreme Court Dec. 10, 2020)—DCA opinion authored by Justice Aaron, discussed in our Oct. 17, 2020 post when the opinion was unpublished:  Labor Code’s cost shifting provisions trumped Code of Civil Procedure section 998’s cost shifting features with respect to successful section 998 defendants, disagreeing with the contrary result suggested by Plancich v. UPS, Inc., 198 Cal.App.4^th 308, 310-312 (2011). 

            4.  SECTION 998.  Auburn Woods I Homeowners Assn. v. State Farm Insurance, 56 Cal.App.5^th 717 (Cal. App. 3d Dist. Oct. 28, 2020)—authored by Acting Justice Mauro, discussed in our Sept. 29, 2020 post:  Attaching a proposed settlement agreement for acceptance in connection with a Code of Civil Procedure section 998 offer cured any uncertainty about there being extraneous terms of an unknown nature.

            3.  SLAPP; SANCTIONS.  Changsha Metro Group Co., Ltd. v. Xuefeng, 57 Cal.App.5^th 1, 2020 WL 6441346 (Cal. App. 4^th Dist., Div. 2 Nov. 3, 2020 after vacating prior opinion), pet’n for review filed, No. S266067 (Dec. 11, 2020)—authored by Justice Miller, discussed in our May 21, 2020 and Nov. 4, 2020 posts:  Plaintiff’s motion for attorney’s fees based on frivolous anti-SLAPP motion by the defense should be requested in the opposition to the merits anti-SLAPP motion in order to give the defense an opportunity to respond, given that the 21-day safe harbor provision under Code of Civil Procedure section 128.5 (as incorporated through section 128.7) cannot likely be satisfied from a timing perspective in most instances.

            2.  DISCOVERY; SANCTIONS.  Kwan Software Enginerring, Inc. v. Hennings, Case Nos. H042715/H043215 (Cal. App. 6^th Dist. Dec. 2, 2020)—authored by Justice Danner, discussed in our Dec. 3, 2020 post:  Imposition of prior terminating sanctions is not a basis to deny issuance of mandatory discovery sanctions of a monetary nature against offending litigants, although attorneys are not subject to monetary sanctions unless they advised their client litigants to engage in the discovery violations.  On the attorney sanctions issue, see also Cornerstone Realty Advisors, LLC v. Summit Healthcare REIT, Inc., 2020 Cal. App. LEXIS 1013 (4^th Dist., Div. 3 Oct. 28, 2020)—authored by Justice Fybel, discussed in our Oct. 28, 2020 post, which found monetary sanctions were inappropriate against attorneys who did not advise litigants to engage in the offending discovery abuses. 

            1.  SECTION 1717.  Waterwood Enterprises, LLC v. City of Long Beach, Case No. B296830 (2d Dist., Div. 1 Dec. 18, 2020)—authored by Justice Bendix, discussed in our Dec. 22, 2020 post: (a) section 1717 trumps more lenient fee clause language as to who is a prevailing party (“getting greater relief” language in fees clause did not trump clear winner standard under section 1717); (b) settlement discussions, informal or under CCP § 998, are irrelevant for fee entitlement under section 1717 independently; and (c) defendants wishing to be section 1717 prevailing parties under tender subdivision must strictly must satisfy tender and deposit rules, not partially admitting some allegations but hedging through a denial of liability.