Prevailing Section 1021.5 Parties Successfully Defending The Case On Appeal Are Allowed To Move For Attorney Fees Post-Appeal Even If The Trial Court Denied Their Pre-Appeal Fees Motion.
We discussed Doe v. Westmont College, Case No. B303208 (2d Dist, Div. 6) in our January 26, 2021 post. The case was unpublished at the time, but was certified for publication on February 8, 2021.
In Doe v. Westmont College, plaintiff appealed after the trial court denied his motion for $85,652, under Code Civ. Proc. § 1021.5, for fees incurred on a prior appeal successfully defending the trial court’s judgment issued in his favor – which resulted in a published decision wherein the 2/6 DCA reversed and remanded for a redo. The trial court had abused its discretion by failing to examine whether private enforcement was necessary and whether the financial burden of private enforcement warranted a fees award. The panel also found that plaintiff’s failure to apportion fees between those that advanced his private interests and those that advanced the public interest was not an appropriate basis for denial – with the trial court having broad discretion to apportion fees if seeking party has failed to do so.
As to defendant’s contention that plaintiff was not entitled to § 1021.5 fees post-appeal because he had not appealed the trial court’s denial of his pre-appeal request for § 1021.5 fees, the panel disagreed. It found plaintiff’s pre-appeal and post-appeal motions for fees were separate, independent motions. Plaintiff’s post-appeal motion for fees was not a repeat of the original fees motion that was denied and not appealed, and the resulting published opinion from plaintiff’s defense of the trial court’s judgment in the first appeal conveyed a significant benefit on a large group of people. In certifying the opinion for publication, the 2/6 DCA modified the opinion to add the following statement: “In some cases, although parties succeed at trial, the full breadth of their success is not realized until they defend the case on appeal. May such a party move for attorney fees post appeal if the trial court denied their preappeal attorney fee motion? We conclude that they may do so.”
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