CCP § 1021.4 Was The Fee Shifting Statute.
Isom v. MacCarthy, Case No. B317433 (2d Dist., Div. 4 Oct. 2, 2023) (unpublished) involved application of CCP § 1021.4, which allows a court in its discretion to award attorney’s fees to a prevailing tort plaintiff as against a defendant who is convicted of a felony driving under the influence of alcohol offense.
In this case, plaintiff was a passenger in a car driven by defendant, who was above the legal alcohol level and who crashed into obstacles causing injury to plaintiff. Defendant entered a nolo contendere plea to the DUI felony. Years later, a jury found defendant was negligent to the tune of almost $15.5 million after finding plaintiff 25% comparatively negligent. Plaintiff then moved to recover 1021.4 fees of almost $6.2 million based on a 40% contingency fee, with the lower court ordering supplemental briefing under a lodestar approach. Based on a lodestar analysis, the lower court awarded $535,095 augmented by a 2.0 multiplier, for a total fee award of $1,070,190.
Defendant’s appeal to overturn or scale back the fee award was unsuccessful. His main argument was that it was mandatory to reduce the award based on plaintiff’s comparative negligence, but the appellate court concluded nothing in the fee statute required a mandatory reduction even though the lower court could consider this as a factor for reducing the fee request. (Sommers v. Erb, 2 Cal.App.4th 1644, 1650 (1992).) The fee award was no abuse of discretion because the lower court did consider plaintiff’s comparative fault, it was proper to award plaintiff’s attorneys a blended $450 hourly rate (including assessment of that rate for a first year associate), and the multiplier was justified based on the contingency fee arrangement/risks taken by plaintiff’s counsel for a number of years.
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