Year In Review - 2021

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

Courtroom One Marble, James R. Browning U.S. Court of Appeals Building, San Francisco, California. Carol M. Highsmith, photographer. 2009. Library of Congress.

Part 1 of 2 – Section 998, Class Action, Prevailing Party/Fee Reasonableness, And Civil Rights/Employment Costs Dominated Our First List Of Decisions.

            It is the Holiday season, and we continue our tradition to present our personal favorite decisions from our blog postings during 2021, keeping in mind they are simply a distillation of what we selectively picked as important.  2021, although a challenging year due to the continuation of the COVID-19 pandemic, produced a good amount of California state court and Ninth Circuit decisions on fee issues, like 2020, such that we wrap up with our Top 20 Decisions list.  We wish our readers Happy Holidays, hoping you all stay safe.

20.     SECTION 998/SETTLEMENT. Varney Entertainment Group, Inc. v. Avon Plastics, Inc., 61 Cal.App.5^th 222 (Cal. App. 4^th Dist., Div. 3 Feb. 23, 2021)—authored by Justice Goethals, discussed in our Feb. 27, 2021 post:  A second narrower non-998 settlement offer, which was accepted by plaintiff, extinguished a broader initial section 998 offer made by plaintiff such that defendant could not recover prevailing party fees and costs under the extinguished prior 998 offer.

19.     ETHICS/INTEREST/RETAINER AGREEMENTS. Pech v. Morgan, 61 Cal.App.5^th 841 (Cal. App. 2d Dist., Div. 3 March 11, 2021)—authored by Justice Egerton, discussed in our March 13, 2021 post:  For valid non-contingency retainer agreements, unconscionability guides fee entitlement, and reasonability guides attorney performance issues.  Attorneys cannot obtain interest on delinquent fees unless their retainer agreements have provisions stating interest will be charged.

18.     REASONABLENESS OF FEES. Karton v. Ari Design & Construction, Inc., 61 Cal.App.5^th 734 (Cal. App. 2d Dist., Div. 8 March 9, 2021)—authored by Justice Wiley, discussed in our March 10, 2021 post:  Overlitigation of a case by an attorney and incivility during the course of a case can justify a trial court’s reduction of a prevailing party fee request.

17.     SECTION 998. Mostafavi Law Group, APC v. Larry Rabineau, APC, 61 Cal.App.5^th 614 (Cal. App. 2d Dist., Div. 4 March 3, 2021)—authored by Justice Currey, discussed in our March 5, 2021 post:  Section 998 offeror’s failure to provide acceptance line in an actually accepted 998 offer still invalidated the offer.

16.     CIVIL RIGHTS/COSTS. Rodney Green, Sr. v. Mercy Housing, Inc., 991 F.3d 1056 (9^th Cir. March 19, 2021)—authored by Circuit Judge Berzon, discussed in our March 19, 2021 post:  Losing plaintiff under a Fair Housing Act (FHA) case is not exposed to routine costs unless plaintiff’s claims were frivolous, unreasonable, or groundless under the Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) standard.

15.     CLASS ACTIONS. Briseno v. Henderson (ConAgra Foods, Inc.), 998 F.3d 1019 (9^th Cir. June 1, 2021)—authored by Circuit Judge Lee, discussed in our June 1, 2021 post:  Ninth Circuit will use the factors in In re Bluetooth Headset Products Liab. Litig., 654 F.3d 535 (9^th Cir. 2011) to judge the fairness of class action settlement fee recovery terms at the post-certification stage, reversing a $7 million fee/costs award to class counsel because (a) class counsel was going to receive about 90% of the total non-cash redemption distributions; (b) the defense banked on a low redemption rate such that the “clear sailing clause” indicated some collusion; and (c) the settlement contained a “reverter” where any reduced fees to class counsel went back to defendant.

14.     PREVAILING PARTY. Harris v. Rojas, 66 Cal.App.5^th 817 (Cal. App. 2d Dist., Div. 8 June 20, 2021)—authored by Justice Wiley, discussed in our July 22, 2021 post:  Tenant, requesting $200,000 from a jury and receiving only $6,450 on his contract claim (3% of the request), was not the prevailing party so as to recover $296,744.68 in fees from landlord.  A trial judge has discretion to decide that the “victory” was pyrrhic and nobody won.

13.     CLASS ACTION. Kim v. Allison, 8 F.4^th 1170 (9^th Cir. Aug. 17, 2021)—authored by District Judge Rakoff sitting by designation for the majority over a dissent by Circuit Judge Callahan, discussed in our Aug. 17, 2021 post—Bluetooth factors are used to judge the fairness of a pre-certification fee award to class counsel.  The majority reversed a $1.2 million fee award, where the injunction value and coupon claim rate predicates for the fee award were inflated and where there was a suspicious “clear sailing clause,” with the dissenting judge finding the fee award was justified under a lodestar analysis such that there was no abuse of discretion.

12.     FAMILY LAW. Marriage of Erndt v. Terhorst, 59 Cal.App.5^th 898 (Cal. App. 1^st Dist., Div. 3 Jan. 11, 2021)—authored by Justice Petrou, discussed in our Jan. 13, 2021 post:  Family Code section 271 sanctions must be tethered to actual attorney’s fees incurred, so they cannot be awarded for an in pro per litigant’s efforts.

11.     SLAPP. Trinity Risk Management, LLC v. Simplified Labor Staffing Solutions, Inc., 59 Cal.App.5^th 995 (Cal. App. 2d Dist., Div. 8 Jan. 11, 2021 issued as unpublished, Jan. 14 published)—authored by Justice Stratton, discussed in our Jan. 15, 2021 post:  There is no meet and confer requirement to discuss the merits of a SLAPP motion or an attorney’s fees request under the anti-SLAPP statute.