Overlitigation Of Case By Attorney Personally Embroiled In A Suit And Incivility Concerns Justified A Reduction Of A Requested Fee.
Karton v. Ari Design & Construction, Inc., Case No. B298003 (2d Dist., Div. 8 Mar. 9, 2021) (published) is a case rife with so many lessons, we cannot catalogue them all. However, it certainly was published to indicate that an attorney’s personal embroilment in a case and incivility are proper bases to reduce a fee request.
Plaintiffs were residential owners (with the husband being an attorney) who contracted for a $163,650 construction project with contractor, which had a surety providing a contractor’s bond. Even though the contractor admitted to owing some money once a dispute arose (which the appellate court said was a difference of $22,096 by the parties’ own admissions), the dispute escalated so as to lead to a 3 ½ day bench trial. The trial court found that plaintiffs had overpaid $35,096 but had to add $57,555 more to the judgment based on contractor using unlicensed workers (even though no work was found to be defective), for a total sum of $92,651, plus an additional $10,000 penalty (a grand total of $102,000). Plaintiffs then moved for about $271,000 in attorney’s fees under an unlicensed contractor fee-shifting provision as well as discovery sanctions and RFA “costs of proof” sanctions (with these last two grounds not supporting a different result). Two hearings were held on the fees request after the lower court identified some deficiencies and asked for limited supplemental briefing, with plaintiffs engulfing the court with voluminous documents. The trial judge eventually found $90,000 was a proper fee award, after reducing for the husband’s personal embroilment and uncivil attacks on opposing counsel, the principal reasons for the reduction.
The 2/8 DCA affirmed. The appellate panel initially has a good discussion about the nationwide “tug-of-war” on whether to use the lodestar versus percentage of recovery, with each having advantages and disadvantages. (A discussion well worth reading especially for class action practitioners.) That debate notwithstanding, the Court of Appeal found there were five good reasons to reduce the requested fees: (1) the issues in the case were relatively simple; (2) plaintiffs had over-litigated the matter; (3) some of the over-litigation was attributable to husband plaintiff’s personal embroilment in the matter; (4) the size of the eventual judgment did not justify the fee request (a cost/benefit approach); and (5) the incivility in plaintiffs’ briefing, because “[c]ivility is an aspect of skill” and “[i]ncivility between counsel is sand in the gears.” With that, the $90,000 fee award was affirmed, but the surety was added as being liable for the fee award because the unlicensed contractor fee-shifting statute made the beneficiary liable and bound to pay costs over beyond the bond amount under Harris v. Northwestern Nat. Ins. Co., 6 Cal.App.4th 1061, 1067-1068 (1992).
OUR FAVORITE QUOTE FROM THE CASE—“Excellent lawyers deserve higher fees, and excellent lawyers are civil. Sound logic and bitter experience support these points.”
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