CALIFORNIA ATTORNEY'S FEES

Intellectual Property: $132,571.50 Attorney’s Fees Order In Trade Dress Infringement Suit Is Sustained On Appeal By The Ninth Circuit

The Case Was Exceptional Based On Defendant’s Willful Infringement, Failing To Cease And Desist, And Resisting An Injunction, As Well As The High Strength Of Plaintiff’s Case.

            In Jason Scott Collection, Inc. v. Trendily Furniture, LLC, Case No. 21-16978 (9^th Cir. May 30, 2023) (published), plaintiff brought a successful trade dress infringement claim under the Lanham Act against defendant for intentionally copying three unique high-end furniture designs by plaintiffs and selling nearly identical pieces to Texas retailers.  Aside from compensatory damages awards, the lower court also found the case to be “exceptional” for purposes of justifying an attorney’s fees award under 15 U.S.C. § 1117(a) of the Lanham Act, awarding plaintiff $132,571.50.  The Ninth Circuit affirmed under its SunEarth test relating to fees, finding that “exceptionality” was shown by defendant’s willful infringement, failng to comply with cease- and-desist letters, and resisting an injunction, paired with the high strength of plaintiff’s case (attaching photographs to show the similarity of the designs on both sides). 

Discovery, Family Law: Lower Court’ $68,358 Monetary Sanctions And Issue Sanction Against Ex-Husband For Failing To Produce QuickBooks Flash Drive To Wife’s Accounting Expert Was Sustained On Appeal

CCP § 2023.030 Allowed For The Award, With Willful Discovery Defiance Found By The Lower Court.

            A party’s failure to comply with discovery orders can have harsh consequences:  monetary sanctions; issue sanctions; and sometimes even dismissal or directives to enter a default judgment.  Ex-husband found that out in Marriage of Foulk, Case No. C094350 (3d Dist. May 30, 2023) (unpublished).

            Ex-husband was found to have willfully defied discovery orders to produce a business’s QuickBooks on a flash drive for static review by wife’s accounting expert.  The lower court imposed $68,358 in monetary sanctions under CCP § 2023.030 on him as well as ordered an issues sanction by which the value of the business would only be established through the uncontested testimony of ex-wife’s accounting expert.  The appellate court found these sanctions were no abuse of discretion, affirming the orders on appeal.

Judgment Enforcement, SLAPP: SLAPP Post-judgment Enforcement Fees/Costs Award Affirmed On Appeal

SLAPP-ed Plaintiff/Judgment Debtor Liable For Post-judgment Enforcement Costs Because He Did Not Move To Tax A Post-judgment Enforcement Costs Memo, A Procedural Deadline Which Was Independent Of Any Subsequent Satisfaction Of Judgment Requests.

            In Briggs v. Elliott, Case No. D080283 (4^th Dist., Div. 1 May 26, 2023) (unpublished), two political rivals were involved in litigation, with plaintiff’s complaint SLAPP-ed by defendant and with the lower court awarding $28,873 in attorney’s fees to defendant as the prevailing SLAPP party.  After trying to collect the unsatisfied judgment for fees, defendant/judgment creditor filed a verified costs memorandum to the tune of $13,789.10 in post-judgment fees and costs, after not accepting a cashier’s check to satisfy what plaintiff/judgment debtor thought would do it on the prior judgment in order not to lose the specter of recovering post-judgment collection costs.  The trial court then awarded defendant the claimed costs as well as prejudgment interest.

            Plaintiff/judgment debtor’s appeal was unsuccessful. 

            Plaintiff’s main problem was that he failed to file a motion to tax the post-judgment costs memorandum, which was an independent deadline not tethered to plaintiff’s efforts to force satisfaction of the prior judgment before collection costs were at issue.  Initially, fees incurred to enforce a SLAPP fee award are recoverable post-judgment collection costs under CCP § 685.040.  (York v. Strong, 234 Cal.App.4^th 1471, 1478 (2015).)  Fees can be claimed through a costs memorandum, with judgment debtor needing to move to tax these costs in order to avoid mandatory allowance by the clerk.  (David S. Karton, A Law Corp. v. Dougherty, 171 Cal.App.4^th 133, 147 (2009).)  Although there were sharply contested facts on plaintiff’s efforts to force satisfaction of judgment, the time frames for a judgment creditor to respond to a demand for partial/full judgment satisfaction are independent of the deadline relating to moving to tax post-judgment requested costs.  Fee award affirmed, with the lower court to determine any appellate fees award to defendant as the prevailing party on appeal.

UPDATE: We can now report that this opinion was certified for publication on June 16, 2023.

Block Billing, Substantiation Of Reasonableness Of Fees: Where Attorney’s Fee Request Was Modest, An Attorney In A Firm Can Substantiate His Firm’s Fees And Block Billing Was Not An Issue Where Fee Request Was Not Substantial

However, Block Billing Is A Problem In A Complex Case With Multiple Billing Attorneys Involved.

            In Minser v. Collect Access, LLC, Case Nos. B318325/B321996 (2d Dist., Div. 1 May 24, 2023) (unpublished), plaintiff prevailed on a Rosenthal Act debt collector claim, which has a fee shifting provision under Civil Code section 1788.30(c).  The lower court awarded plaintiff $12,100.50 in fees and $1,097.23 in costs.  On appeal, defendant argued that plaintiff’s fee substantiation was inadequate.  Not at all, said the Court of Appeal.  An attorney working on a case in a firm, if involved, can verify the firm’s work effort from a synergistic perspective.  Although there was some block billing, the fee request was so modest such that the transgression did not require a reduction, although the appellate court did note that the result would be different in a complex case with many attorneys billing hundreds of hours on a case.  Fee award affirmed. 

Reasonableness Of Fees: $113,745 Fee Award Remanded Because It Was Unclear If Trial Court Might Have Allowed A “Double Dip” On Fees Based On Prior Discovery Motion Rulings

$10,200 Potential Difference Necessitated A Remand, Not On Appellate Modification Based On Uncertainty In The Lower Court’s Ruling.

            In Fuentes v. Betuel, Case No. B302827 (2d Dist., Div. 3 May 19, 2023) (unpublished), prevailing defendants moved to recover attorney’s fees of $128,860, with the lower court making some reductions—including adjustments to prevent a “double dip” on prior awards of fees in discovery battles—in coming to an eventual award of $113,745.  Except for one aspect of the award, the result held up on appeal.  However, the appellate court was unclear on whether the lower court maybe did “double dip” about $10,200 on the discovery issue.  Rather than modify the judgment downward, the Court of Appeal remanded so the trial judge could revisit the issue, without indicating how the lower court should rule. 

Civil Rights, Private Attorney General: On Remand From The California Supreme Court, Court Of Appeal Denies Attorney’s Fees To Prevailing Party Under The Political Reform Act And Under A Separate Private Attorney General Theory

Plaintiff’s Suit Was Not Frivolous Under Political Reform Act, With Defendants Not Showing An Important Right/Significant Benefit Were Vindicated Under CCP § 1021.5.

            In Travis v. Brand, Case No. B298104 (2d Dist., Div. 8 May 19, 2023) (published), the 2/8 DCA had to consider whether prevailing defendants were entitled to attorney’s fees under the Political Reform Act and under CCP § 1021.5 after the California Supreme Court decided that prevailing defendants are only entitled to Political Reform Act fee recovery if they can prove plaintiff’s case lacked foundation and then determine whether the trial court properly decided that fees were warranted under the private attorney general doctrine.  Defendants were not successful in convincing the appellate court that a fee award was proper under either fee entitlement anchor.

            With respect to the Political Reform Act entitlement basis, the appellate court examined the entire record and concluded that plaintiff’s suit had potential merit from the onset.

            That swung things to the private attorney general justification.  This ground did not prevail on appeal.   Defendants did not show that they satisfied the important right and substantial benefit prongs of section 1021.5.  Simply because an election law issue was involved did not per se give an imprimatur on private attorney general fees, given that defendants failed to show free speech rights were involved.  Instead, only technical issues between the parties themselves were involved, issues which did not change any of the merit issues or focus for the electorate.  Given this pragmatic assessment by the appellate court, two prongs of section 1021.5 were not satisfied so as to justify denial of private attorney general fees.

Civil Rights: Where Qui Tam Plaintiff And Defendant Settle The Action With Each Side Bearing Their Own Fees, Quin Tam Plaintiff’s Counsel Cannot Bring Subsequent Action For Statutory Fees Under Government Code Section 12652

Action Was Dismissed, With Options For Counsel Being To Intervene In The Qui Tam Action Or To Provide For A Fee Recovery Preservation In The Settlement.

            In Berney Law Corp. v. ClubCorp Porter Valley Country Club, Inc., Case No. B313888 (2d Dist., Div. 7 May 18, 2023) (unpublished), the trial and appellate courts faced this issue:  If a qui tam plaintiff and defendant settle their action, agreeing to bear their own attorney’s fees, and the matter is dismissed with prejudice, may the plaintiff’s counsel, a non-party to the action and not a signatory to the settlement agreement, bring a subsequent action against the settling defendant for statutory fees under Government Code section 12652(g)(8)?  The lower court said no, and the appellate court agreed.  The 2/7 DCA did suggest that the attorney might have options, such as intervening in the action before it was settled or making sure the settlement agreement preserves the ability to pursue fees at a subsequent point in time. 

Partition: Trial Judge’s Award Of Apportioned Fees To A Feuding Couple Is Sustained On Appeal

Husband’s Challenges To Wife’s Fee Recovery Was Rebuffed By Appellate Court.

            A couple in a partition action, with the lower court describing their relationship as “toxic” and “two scorpions in a bottle” (words in the opinion, not ours), ultimately achieved some fee recovery based on common benefit in a contested partition action, with husband awarded $16,750 and wife awarded $19,800.  Husband still appealed in Nielson v. Courtney, Case No. B324058 (2d Dist., Div. 6 May 18, 2023) (unpublished), challenging the fee award to wife.  He was unsuccessful on appeal.  Based on the facts, he presented no reason to deviate from the trial judge’s conclusion, with the appellate court declining husband’s invitation to reweigh the evidence. 

Arbitration: Substantial Fee Awards Of Around $672,000 By An Arbitrator Under A Contractual Fees Clause Are Affirmed On Appeal

Arbitrator’s Fee Clause Interpretation Was Immune From A Merits Challenge.

            In Mikali v. Benyamini, Case No. B316525 (2d Dist., Div. 5 May 16, 2023) (unpublished), an arbitrator interpreted a fees clause under a contractual agreement with an arbitration and fees clause, awarding certain defendants, respectively, $639,119 in fees and $32,647 in fees.  The trial judge confirmed those fees awards, with a disgruntled plaintiff appealing.  All to no avail, because the merits of an arbitrator’s fees clause interpretation are immune to challenge because the parties’ contractual agreements allowed the arbitrator to do so even if the interpretation was in error.

SLAPP: $30,555 SLAPP Fee Award Reversed And Remanded Where Only Part Of The SLAPP Denial Was Affirmed On Appeal

Reversal Of The Rest Required A Remand To Eliminate Fees Which Were Inappropriately Awarded For Reversed SLAPP Denial Grant.

            Espinoza Bail Bonds, Inc. v. Chuang, Case No. C095258 (3d Dist. May 15, 2023) (unpublished) shows what happens when $30,555 in attorney’s fees are awarded to a cross-defendant on a SLAPP motion, but there is a partial appellate affirmance of the denial but also a partial appellate reversal of the denial as a matter of law.  So, what happens?  Answer:  The matter had to be remanded to have the trial judge determine what portion of the earlier fee award was properly awarded for the correct SLAPP grant and what portion of the fee award had to be excised for an incorrect SLAPP grant (an incorrect grant as a matter of law).  Looks like an apportionment is in order, as we read the appellate opinion.

Private Attorney General: $3,531,201.10 Attorney’s Fees Award To Plaintiff Successfully Being A Catalyst On Low-Income Housing Issue Was Affirmed On Appeal

Decision Shows The Proper Way For A Plaintiff To Show It Was A Catalyst And To Substantiate Its Fee Request With Great Detail Before The Trial Judge.

            For public interest and governmental lawyers, The Kennedy Comm’n v. City of Huntington Beach, Case Nos. E078403 et al. (4^th Dist., Div. 2 May 11, 2023) (published) is a must read in the CCP § 1021.5 private attorney general area on catalyst and fee reasonableness issues.  The opinion is 43 pages long, but we will try to distill it quite nicely below. 

            The trial judge, after some prior determinations leading to prior appeals, ultimately awarded $3,531,201.10 to plaintiff (the full ask and inclusive of a positive 1.4 multiplier), with plaintiff claiming to be a catalyst for purposes of Huntington Beach making changes to accommodate low-income housing under California’s Housing Element Law.  City’s problem on appeal was that it could not blunt that plaintiff did vindicate an important issue (public housing) and that it was a catalyst for change based on some shifting legislative developments.  The factual determinations on being a catalyst were reviewed deferentially.  As to reasonableness of fees, plaintiff submitted detailed declarations from working attorneys, detailed billing statements, and a civil rights expert which were not matched in quality by the City’s opposition submissions.  That lead to an affirmance of the “full ask,” not to mention that the 1.4 multiplier was warranted due to the complexity of the matter and with the case being litigated by volunteer attorneys in some major respects who had no expectancy of a fee recovery.  Fee award affirmed.

Judgment Enforcement: Prior Recordation of Interlocutory Judgment Containing Monetary/Constructive Trust Relief Beat Out Later Deed Of Trust Recorded By Attorneys To Secure Fees

Race-Notice Gave Victory To The Interlocutory Judgment Recordation.

            In The 12 Tribes of Israel, U.S.A., Inc. v. Barnum, Case No. B315528 (2d Dist., Div. 5 May 4, 2023) (unpublished), the nub of the appeal came down to a race-notice issue.  Did an earlier interlocutory judgment containing monetary and constructive relief beat out a subsequent deed of trust recorded by attorneys attempting to secure fees?  The answer was that the interlocutory judgment was prior in time.  The opposition argued that there needed to be an abstract of judgment recorded (which was done, but after the deeds of trust).  However, the recordation of the interlocutory judgment was senior to the deeds of trust.

Prevailing Party: Tenant’s Successful Demurrer, Resulting In A Dismissal Of A Case Without Prejudice To Refiling A Future Complaint, Did Not Entitle Tenant To Prevailing Party Fees

An Interim Dismissal Without Prejudice Did Not Dispositively Determine Who Prevailed.

            Tenant, during the COVID-19 pandemic, successfully demurred to a landlord complaint on the basis that the lawsuit was premature given pandemic rules which did not allow the suit to be filed when it was.  The demurrer was sustained without prejudice to filing a later complaint.  Tenant moved for contractual attorney’s fees as the prevailing party, a request denied by the trial court.

            That denial was affirmed on appeal in Ghukassian v. Wolfberg, Case No. E078304 (4^th Dist., Div. 2 May 11, 2023) (unpublished).  Tenant’s problem was that the interim dismissal was without prejudice to refiling a future complaint, nowhere close to a dispositive ruling on the merits.  That meant the prevailing party request was premature.  (City of West Hollywood v. Kihagi, 16 Cal.App.5^th 739, 753 (2017); Estate of Drummond, 149 Cal.App.4^th 46, 49, 51, 53 (2007).)

Appeal Sanctions, Costs: Prevailing Party Was Entitled To An Amended Judgment With Costs Requests Included Because The Other Side Did Not File Any Motion To Strike/Tax Costs

However, Appeal Sanctions Were Denied Because They Were Improperly Sought In Respondent’s Brief, Rather Than Through A Separate Motion.

            The next case, Black v. Fireman’s Fund Ins. Co., Case No. A165731 (1^st Dist., Div. 1 May 11, 2023) (unpublished), has two lessons, where a prevailing party did obtain an amended judgment to add unopposed routine costs requests and where the party successfully winning an appeal only asked for frivolous appeal sanctions in its respondent’s brief.

            The lessons, two in number.  First, the failure to file a motion to strike or tax costs means any challenges are forfeited on appeal, with the clerk needing to immediately enter the costs on the judgment.  (CRC 3.1700(b)(4); Oak Grove School Dist. v. City Title Ins. Co., 217 Cal.App.2d 678, 698 (1963).)  [NOTE:  Based on the pandemic disruption, it is best to move the court to add these costs to the judgment, given that clerks are inundated so that they fail to do this in due course.  But this is also best post-pandemic procedure by a party entitled to costs.]   Here, the failure to file such motions, forfeited any appellate challenge to the amended judgment including costs.  Second, appellate sanctions cannot be requested in a respondent’s brief, but must be done so through a separate motion.  (Cowan v. Krayzman, 196 Cal.App.4^th 907, 919 (2011).)  In this case, respondent’s failure to do so prevented the award of any frivolous appeal sanctions.

SLAPP: Portions Of Defendants’ Frivolous SLAPP Motions Justified Trial Court And Appellate Fees Under Anti-SLAPP Statute

Defendants Appealing The Entire SLAPP Denial As To All Claims Resulted In The Ruling.

            Nirschl v. Schiller, Case No. B313105 (2d Dist., Div. 4 May 10, 2023) (published) involved SLAPP defendants in a case where only portions of their SLAPP motion as to non-defamation claims were denied and deemed to be frivolous in nature—with the lower court awarding fees to plaintiff for these activities.  The appellate court agreed, as well as determined that the defendants should pay appellate fees relating to the non-defamation claims being sustained as frivolous on appeal (but not because the appeal was found to be frivolous).  Defendants’ problem was that they overstepped their bounds, appealing rulings on both the defamation and non-defamation claims, which stayed the entire case inclusive of the defamation claims.  For this overinclusive appeal, defendants were subject to exposure for SLAPP appellate fees as to the non-defamation claims.

Costs: Prevailing Party On Appeal Allowed $1,500 In Printing/Copying Appellate Costs For Appellate Briefs/Other Pleadings

Counsel Press Expenses Were Allowed, With Unsuccessful Motions Still Entitled To Allowance.

            In Kleidman v. Feeva Technology, Inc., Case No. H049681 (6^th Dist. May 10, 2023) (unpublished), the losing party challenged $1,500 in appellate costs for printing and copying briefs, arguing that it included motion and other pleadings (not just briefs) and that it was excessive to use Counsel Press, an outside service, to process the printing, copying, and filing of the appellate paperwork.  The trial court denied losing party’s motion to tax these appellate costs, and the appellate court affirmed.

            The Advisory Committee comment to CRC 8.278(d)(1)(D)-(E) allows for electronic filing service providers’ efforts to be reimbursed.  No legal authority was advanced to show that the definition of “briefs” excluded any other appellate proceedings not specifically titled as a brief.  Finally, prevailing party costs recovery depends on prevailing overall (which the prevailing party did here), not just some interim losses on a single motion or hearing that occurred during the appeal.   (See CRC 8.278(a)(1) [defining a prevailing party based on whether the court affirmed or reversed a judgment].)

Special Fee Shifting Statutes, SLAPP: $40,000 Civil Harassment Fee Award To The Defense Affirmed, But SLAPP Denial Remanded After California Supreme Court Transfer To See If Step Two Was Satisfied

$84,150 Civil Harassment Fee Request Reduced By More Than 50%.

            Geiser v. Kuhns, Case No. B279738 (2d Dist., Div. 5 May 8, 2021) (unpublished) is a case where both a civil harassment fee award and SLAPP denial were in play, with the California Supreme Court on two occasions remanding to the appellate court on the SLAPP issue. 

            In this one, the defense was found to have prevailed under the civil harassment petition fee shifting statute, finally obtained affirmance of a $40,000 award after the lower court reduced it from the $84,150 “ask.”  The lower court’s ruling was no abuse of discretion, and plaintiff’s math to the contrary did not add up.

            The SLAPP issue was a little more complicated.  After transfer from the state supreme court the last time, the appellate court agreed that protected activity was involved such that the lower court had to decide if the merits prong was satisfied on remand.  The defense asked the appellate court to do that task, but it refused to do so.  So, there is a remand to see if fees might be awarded if the defense satisfies the second SLAPP prong for a grant of relief. 

Family Law: After Two Decades Of Dissolution Battles, Husband Obtains $8,179.20 Fees Award For Brining A CCP § 664.6 Motion To Reduce A Marital Settlement Agreement To Judgment

Wife Denied 2030/271 Sanction Requests—The Dissolution Battle May Be Over!

            In Marriage of Shepherd, Case No. B322621 (2d Dist., Div. 3 May 4, 2023) (unpublished), two decades after a dissolution action was filed, husband and wife seemingly reached a marital settlement agreement (MSA) resolving all issues, read into the record in a court proceeding.  Wife reneged and tried to add new terms, according to the unpublished opinion, also seeking Family Code section 2030/271 sanctions.  The lower court granted husband’s motion to enter the MSA as a judgment and awarded him $8,179.20 in attorney’s fees in bringing the CCP § 664.6 motion.  It also denied wife’s fees/sanctions requests, finding husband already had paid substantial fees, more fees were due under the MSA, and wife did not adequately support her 2030 motion.

            The appellate court affirmed the results across the board.  Wife was the one who increased the costs of litigation and did not adequately support her 2030 requests.  Conversely, husband was entitled to fees for getting the MSA entered as a judgment so that the overall dispute may be finally ending to a close. 

            Husband asked for appellate frivolous sanctions, but he failed to file the required separate motion such that this request was procedurally denied.

Homeowner Associations: 50% Pro-Rata Fee Award To HOA By Arbitrator Affirmed On Appeal

$17,093.50 Reduced Award Upheld, With HOA Able To Seek Pro Rata Fees For Winning On Appeal.

            In Fairly-Haze v. Whitesails Community Assn., Case No. B311574 (2d Dist., Div. 6 May 4, 2023) (unpublished), HOA primarily won an arbitration proceeding which involved assignment of a handicapped car space in return for a surrender of another space by homeowners.  The arbitrator also awarded HOA $17,093.50 in fees (50% of the requested amount) under the mandatory fee-shifting provision contained in the Davis-Stirling Act.

            The 2/6 DCA affirmed the fee award after upholding the merits ruling in favor of HOA.  Homeowners, themselves, clarified later in the proceeding that CC&Rs were involved, which triggered Davis-Stirling fee exposure.  The reduced amount of the fee award was not erroneous, with the appellate court determining HOA could seek a pro-rata shares of its attorney’s fees for winning the appeal.

Costs: Computerized Legal Research Costs Are Not Allowable As Routine Costs, But Electronic Hosting Expenses, Even If Not Ordered By The Trial Court, Are Discretionarily Reimbursable

1/4 DCA Follows Ladas On The Computerized Legal Research Issue. 

            Kung v. Carthy, Case No. A161965 (1^st Dist., Div. 4 May 3, 2023) (unpublished) considered whether computerized legal research costs and electronic hosting expenses (expenses not expressly approved by the trial judge) are reimbursable.  Number 1 was decided to not be a reimbursable cost, although number 2 could be reimbursable in the discretion of the lower court.

            The lower court denied allowing these items as reimbursable costs to the prevailing party. 

            The conclusion on electronic hosting expenses was reversed and remanded.  The reason was that CCP § 1033.5(a)(15) did not automatically deny reimbursement, but allowed the lower court to decide whether these expenses were reimbursable in its discretion, relying on Segal v. ASICS America Corp.,12 Cal.5^th 651, 665-667 (2022).  The automatic denial had to be reversed and remanded so the lower court could exercise its discretion on this costs issue. 

            However, the conclusion on the legal computerized research issue was affirmed.  It was supported by Ladas v. California State Auto. Assn., 19 Cal.App.4^th 761, 776 (1993), with the Legislature never amending the routine costs statute to ameliorate this result.  Beyond that, computerized legal research is akin to an attorney overhead expense for maintaining a law library, so the end result was correct.

SLAPP: Voluntary Dismissals Did Not Deprive Trial Court Of Ability To Decide An Award Of SLAPP Mandatory Fees To Successful Defendants

However, Trial Court Had To Determine Whether SLAPP Motions Were Meritorious.

            Facing disaster, plaintiffs in Ryckman v. Drexler, Case No. B319664 (2d Dist., Div. 1 Apr. 28, 2023) (unpublished), voluntarily dismissed their actions in the face of SLAPP motions filed by defendants.  The lower court then awarded fees of $29,727.55 to one set of defendants and $21,601.30 to another set of defendants, with no oppositions filed by plaintiffs.

            Plaintiffs argued that the voluntary dismissal divested the lower court of jurisdiction to award fees.  Wrong, it does not.  But the real issue is what did the defense have to prove.  The Second District panel, following a majority of appellate court opinions on this issue, decided that it was necessary to show that the SLAPP motions were meritorious before awarding fees.  That burden was met here such that the fee award was sustained given no challenge to the amount of awarded fees.

Allocation, Probate: $441,295.63 Fee Award Under Probate Code Section 859, Which Incorporates Mandatory Elder Abuse Fee Shifting, Affirmed Against Removed Trustee On Appeal

No Apportionment Required Because Elder Abuse and Fiduciary Duty Breach Claims Were Intertwined.

            In Keading v. Keading, Case No. A153628 (1^st Dist., Div. 3 Apr. 28, 2023) (unpublished), a beneficiary successfully obtained an elder abuse finding and successfully removed a trustee under Probate Code section 850, which allows a probate judge under related Probate Code section 859 to award reasonable attorney’s fees to the prevailing party (mandatory under the elder abuse fee shifting statute but discretionary on other claims).  The prevailing beneficiary moved for $598,158.93 in fees under the elder abuse statute, arguing no apportionment was necessary because elder abuse and fiduciary breach claims were intertwined, and asking for a 1.75 multiplier.  The lower court, after making downward adjustments for duplication (two attorneys at trial) and excessive hourly rates, awarded $441,295.63 in fees under the elder abuse fee shifting statute, inclusive of a 1.25 multiplier.

            Removed trustee was miffed, appealing the fee order.  The order was affirmed on appeal.

            No apportionment was necessary because there was a common nucleus of facts between the elder abuse and fiduciary breach claims.  Appellant argued that an evidentiary hearing on the fee request should have been held, but the appellate court agreed that the facial request was reasonable, everyone got to support their respective positions on the fee request, and the probate judge did reduce the fee request.  Fee award affirmed.