Year In Review – 2021

Year End-Wrap Up By Mike, Marc, And Shanna For Our Top 20 Decisions In 2021

Ronald Reagan Federal Courthouse, Santa Ana, California. Carol M. Highsmith, photographer.  Between 1980 and 2006. Library of Congress.

Part 2 of 2 – Third-Party Beneficiary Fee Clause Interpretation, Class Actions/Cy Pres Awards, Post-Judgment Fee Amounts, And Civil Rights/Employment Costs Dominated Our Second List Of Decisions.

            Here is the second part of our Top 2021 list.  With that, we look forward to posting on cases in 2022, although we will do periodic reports for any ending 2021 decisions.

10.     INTERPRETATION OF FEE CLAUSES. Hom v. Petrou, 67 Cal.App.5^th 459 (Cal. App. 1^st Dist., Div. 4 Aug. 3, 2021)—authored by Justice Brown, discussed in our Aug. 6, 2021 post—Where non-signatory lenders obtained a dismissal of a cross-complaint involving tort claims, they were entitled to attorney’s fees under a broad fee clause in a lease where they were third-party beneficiaries under the clause (based on the specific wording of the fees provision). 

9.     CIVIL RIGHTS/COSTS. Pollock v. Tri-Modal Distrib. Services, Inc., 11 Cal.5^th 918 (Cal. Supreme Court July 26, 2021)—authored by Justice Liu, discussed in our Aug. 2, 2021 post:  Routine appellate costs cannot be awarded to a prevailing FEHA defendant, even on appeal, where the plaintiff brought a potentially meritorious suit that ultimately did not succeed. 

8.     CLASS ACTIONS. McKinney-Drobins v. Massage Envy Franchising, LLC, 16 F.4^th 594 (9^th Cir. Oct. 20, 2021)—authored by Circuit Judge Gould, with a concurrence by Circuit Judge Miller, discussed in our Oct. 21, 2021 post:  Determination of whether vouchers are “coupons” under CAFA is reviewed under a de novo standard, reversing a district judge’s analysis under this review standard.  Class counsel fee award, reached at a pre-certification settlement stage, was reversed and remanded based on the presence of non-cash relief, a “clear sailing” provision, and a “reverter” to the defendant, as well as a need to examine actual redemption rates given that this was a coupon settlement case.

7.     COSTS/EMPLOYMENT. Patterson v. Superior Court, 2021 Cal.App. LEXIS 863 (Cal. App. 2d Dist., Div. 7 Oct. 18, 2021)—authored by Presiding Justice Perluss, discussed in our Oct. 20, 2021 post:  Employer successfully moving to compel arbitration in FEHA case not entitled to recover attorney’s fees unless employee’s opposition to the motion was groundless.

6.     SECTION 998/WORKERS’ COMPENSATION. Oakes v. Progressive Transp. Services, DJDAR 11710 (Cal. App. 2d Dist., Div. 2 Nov. 10, 2021)—authored by Justice Chavez, discussed in our Nov. 11, 2021 post:  Reconciling CCP § 998 and Labor Code § 3856, plaintiff’s attorney’s contingency fee amount is not to be reduced from gross judgment to determine if the section 998 offeror was entitled to prevailing party post-offer costs; CCP § 998 took precedence over Labor Code § 3856.

5.     REQUESTS FOR ADMISSION. Spahn v. Richards, Case No. A159495 (Cal. App. 1^st Dist., Div. 3 Nov. 30, 2021)—authored by Justice Rodriguez, discussed in our Dec. 5, 2021 post:   CCP § 2033.420 “costs-of-proof” sanctions are not per se barred by previous denials of a summary judgment motion and a directed verdict motion, with the circumstances of a particular case determining if a denying plaintiff’s conduct fell within section 2033.420’s exceptions.

4.     JUDGMENT ENFORCEMENT/REASONABLENESS OF FEES. Wertheim, LLC v. Currency Corp., 2021 Cal.App. LEXIS 854 (Cal. App. 2d Dist., Div. 1 Oct. 14, 2021, mod. Nov. 21, 2021, pet’n for review pending, Case No. S271933)—authored by Justice Chaney, reviewed in our Oct. 17, 2021 post:  Judgment creditor was denied a substantial portion of post-judgment collection attorney’s fees based on proportionality and equitable principles by comparing fees sought to amount of judgment at issue. 

3.     ATTORNEY GENERAL/PREVAILING PARTY. Doe v. Westmont, 60 Cal.App.5^th 753 (Cal. App. 2d Dist., Div. 6 Jan. 25, 2021, mod./published Feb. 8, 2021)—authored by Justice Tangeman, discussed in our Feb. 9, 2021 post:  Subsequent appellate decision can justify later CCP § 1021.5 fee award although pre-appeal fees were initially denied because success element was later satisfied.

2.     DAMAGES. Mai v. HKT CAL, Inc., 66 Cal.App.5^th 504 (Cal. App. 4^th Dist., Div. 1 July 12, 2021), rev. den.—authored by Justice Dato, discussed in our July 19, 2021 post:  Disagreeing with, or claiming some of its reasoning was dicta in, Copenbarger v. Cerullo World Evangelism, Inc., 29 Cal.App.5^th 1 (2018).  4/1 DCA holds a prima facie case that costs were incurred and that they were reasonable can be established by plaintiff client’s testimony that the bills were paid when fees are claimed as damages during a trial.  [BLOG OBSERVATION:  This split in thinking may need to be resolved by the California Supreme Court at some point.]

1.     CLASS ACTIONS/CY PRES AWARDS. In re Google Inc. Street View Electronic Communications Litig., Case No. 20-15616 (9^thCir. Dec. 27, 2021) (published)—majority and concurring opinions authored by Circuit Judge Bade, discussed in our Dec. 28, 2021 post:  Cy pres awards could be considered for purposes of valuing a class action for purposes of setting an attorney’s fees benchmark even though direct monetary payments went to class members in a case where member identification was difficult, with the concurrence indicating that the Ninth Circuit should reexamine cy pres awards with respect to indirect benefit and inherent conflicts of interest.