CALIFORNIA ATTORNEY'S FEES

Interpleader: $71,777.80 Award To Nonjudicial Foreclosure Trustee Affirmed In Dispute Over Allocation Of Surplus Proceeds

Fee Entitlement Was Grounded In CCP § 386.6(a), With No Real Objection To The Fee Work.

            In Barrett Daffin Frappier Treder & Weiss v. Garau, Case No. B315960 (2d Dist., Div. 1 Jan. 30, 2024) (unpublished), non-judicial foreclosure trustee was awarded fees of $71,777.80 for bringing an interpleader action to resolve how excess surplus proceeds should be paid.  Although former owners appealed from the fee award, it was affirmed.  CCP § 386.6(a) does allow for fee entitlement in such an interpleader dispute, with appellant not lodging any real argument as to why the work was not justified so as not make award in trustee’s favor.  (Cf. Southern Cal. Gas Co. v. Flannery, 232 Cal.App.4^th 477, 492 (2014) [analogous fee award of $81,053.44 sustained on appeal].)

Fee Clause Interpretation: Easement Language Only Referencing “Costs And Expenses Of Defense” Arising From The Easement Properly Found Not To Encompass Attorney’s Fees

Failure To Reference Attorney’s Fees Was Fatal To Fee Recovery.

            Draftsmanship, draftsmanship, draftsmanship is the theme of the case we next post on, Smith v. Guillosson, Case No. B322717 (2d Dist., Div. 2 Jan. 30, 2024) (unpublished). 

            Plaintiff/cross-defendant prevailed on a patio and a walkway easement dispute where there were clauses indicating that the losing party adjacent neighbor “agrees to pay for any and all liability or damages including costs and expenses of defense” arising from use of the easements.  Prevailing party moved for attorney’s fees, with the lower court tentatively awarding $462,714 in fees (yes, you read that right) but then ultimately denying fees altogether because the easement language did not encompass attorney’s fees in a first-party situation.

            The 2/2 DCA affirmed.  Attorney’s fees and other expenses of litigation, whether termed as costs, disbursements, outlays, or something else, are mutually exclusive, such that costs do not include attorney’s fees.  The easement language did not expressly address attorney’s fees, with no contractual implication proper.  Fee denial affirmed.

Deadlines: Special Deadlines Govern Appeal Of Costs Orders In Validation Actions, With Appellants Being Untimely

Special Attention Needs To Be Paid In Validation Proceedings—Appeal Deadlines Are Different.

            Validation proceedings have their own time deadlines, including times to appeal.  In County of Alameda v. Alameda County Taxpayers Assn., Case No. A167040 et al. (1^st Dist., Div. 5 Jan. 29, 2024) (unpublished), a litigant appealed a postjudgment costs order in a validation proceeding, appealing 59 days after service of the costs order.  That was untimely, with the appeal dismissed because this order had to be appealed 30 days later, not 59 days later.  (CCP § 870(b); Planning & Conservation League V. Dept. of Water Resources, 17 Cal.4^th 264, 266-267 (1998).)  That same rule, the shorter 30-day rule, applies to filing for an attorney’s fees motion in a validation proceeding.  (Central Delta Water Agency v. Dept. of Water Resources, 69 Cal.App.5^th 170, 212-213 (2021).)

Costs, Section 998: Ouf-Of-State Deposition and Expert Witness Costs Were Justified

Section 998 Offer Was Proper, So Expert Witness Expenses Properly Awarded.

            In Tayefeh v. Kern Medical Center, Case No. F085746 (5^th Dist. Jan. 29, 2024) (unpublished), the lower court and appellate courts affirmed certain costs for prevailing defendants for certain out-of-state deposition expenses and expert witness costs.  Those determinations were affirmed on appeal.  Because the out-of-state deposition needed to be taken to preserve testimony, there was no abuse of discretion in allowing these costs.  With respect to the expert witness fees, the appellate court had to assess the propriety of a CCP § 998 offer, but concluded it was made in good faith based on the information known to all parties, such that the expert witness preparation costs were not unreasonable. 

Fee Clause Interpretation: No Attorney’s Fees Exposure In Court Action Because Operative Contractual Fees Clause Only Applied To Arbitration Activities

Choosing Litigation Over Arbitration Means The Party Did Decide To Forego Fees.

            Roberts v. Crandell, Case No. B320951 (2d Dist., Div. 3 Jan. 26, 2024) (unpublished) is yet another unpublished decision with reasoning which supports the view that a litigant choosing to litigate in court, rather than arbitration (where the contractual fee clause only encompasses arbitration), cannot recoup attorney’s fees as the prevailing party in a court case.

Allocation, Employment, Section 998: Lower Court Did Not Abuse Its Discretion In Finding Employer Alter Ego Was Dismissed Under Section 998 Offer And Then Awarding Reduced Fees Against Employer For Unpaid Overtime Employee Claim

In The End, Only $10,000 In Fees Awarded Against Employer.

            This next case addresses many issues we have posted on over the years—specificity in CCP § 998 offers and seeking reasonable fees on claims which should be allocated but are not.  Wu v. ABC Lucky Transportation, Inc., Case Nos. B323494/B326800 (2d Dist., Div. 1 Jan. 25, 2024) (unpublished) demonstrates how these issues pan out, not necessarily a happy conclusion for a litigant, the employee in this case.

            Employee sued employer and owner/alleged alter ego for unpaid overtime, missed breaks, and wrongful termination.  After several rejected settlement offers made on behalf of defendants (plural), employee accepted a CCP § 998 offer also made on behalf of the defendants for $35,000 plus any attorney’s fees and costs reasonably ordered against defendants.  Based on that, the lower court dismissed both employer and alleged alter ego from the case.  Later, the trial judge granted employee only $10,000 out of a requested $133,555.76 on the overtime claim after finding the claimed hours of work were excessive.

            The 2/1 DCA affirmed.  Given the plural wording of the 998 offer and past settlement offers, in tandem with the fact the same counsel represented both defendants, the lower court rightfully could conclude that the alter ego was part of the offer.  With respect to awarded fees, the order was no abuse of discretion given there was no allotting out of work on other claims than the unpaid overtime claim and given that no extensive discovery was necessary on the joint employer issue.

Equity, Prevailing Party: $54,914.25 Fee Award For Replacement Referee Interim Victory Was Premature

Based On Unique Circumstances Of The Litigation, Fee Request Was Premature Until The Overall Merits Were Decided.

            Equity does factor in attorney’s fees awards, as Hot Rods, LLC v. Northrop Grumman Systems Corp., Case No. G061449 (4^th Dist., Div. 3 Jan. 25, 2024) (unpublished) makes clear.

            This contentious litigation between the parties involved multiple proceedings and appeals over parties’ responsibilities for environmental contamination of an Anaheim property, which produced some wins and losses for both sides.  The current appeal focused on a $54,914.25 fee award for one party prevailing on an interim victory of obtaining a replacement referee.  However, given that the merits of the motions were not addressed, the 4/3 DCA, in an opinion authored by Justice Moore, reversed because it was premature, with a remand to see what happened at later junctures of the litigation to determine who prevails.

Arbitration: 4/1 DCA Follows Second District Decisions Holding Employer Wanting Arbitration Needs To Timely Pay Arbitration Expenses Under Penalty Of Litigating In Court

Facts Here Were That Employer Obtained Stay Of Court Case, But Did Not Timely Pay Arbitration Fees.

            Although the procedural context was a little different because employer obtained an arbitration stay and then failed to timely pay fees for a contractual arbitration against employee, the 4/1 DCA followed the lead of Second District cases such as Gallo v. Wood Ranch USA, Inc., 81 Cal.App.5^th 621, 629 (2022) and Espinoza v. Superior Court, 83 Cal.App.5^th 761, 778-779 (2022) in deciding that the employer’s failure to timely pay arbitration fees under CCP § 1281.97 required writ relief to dictate the conclusion that employer had waived its rights to arbitrate.  The 4/1 opinion so concluding is Suarez v. Superior Court, Case No. D082429 (4^th Dist., Div. 1 Jan. 24, 2024) (published).

Special Fee Shifting Statutes, Section 998: Kinney Opinion Now Certified For Publication

Opinion Illustrates How Valid Section 998 Offer Can Reduce Fee Exposure Under A Fee Shifting Statute.

            On December 31, 2023, we posted on Kinney v. City of Corona, Case No. E079840, which was unpublished at the time.  We can now report that Kinney was certified for publication on January 24, 2024.  It demonstrates how a California Public Records Act fee award had to be reduced because the prevailing party failed to accept a valid CCP § 998 offer which changed the litigation landscape and limited fees based on its operative impact. 

Sanctions: 4/3 DCA Remands Sanctions Order For Explanation Of Sanctionable Conduct

Court Of Appeal Observed That Cross-Defendant’s Frivolous Motion To Quash Was Sanctionable, But Remanded So The Technicality Could Be Cured.

            Do not think that you can make factual misstatements or concealments in a motion to quash for lack of personal service; both trial and appellate courts will find this behavior sanctionable.

            That is what happened in Rodrigo v. Truxas Sales, Inc., Case No. G061979 (4^th Dist., Div. 3 Jan. 24, 2024) (unpublished).  Cross-defendant brought a motion to quash and send the case from California to Texas, but scrubbed its Website of information showing it had California locations and then misrepresented that the dump truck was picked in Texas even though it actually was delivered in California.   The lower court found that the motion to quash was factually frivolous and awarded sanctions of $9,000 to cross-complainant under CCP § 128.7.

            The appellate court found the conduct sanctionable, too, but it remanded because the lower court failed to explain the sanctionable conduct with specificity—even though the appellate panel did indicate it likely knew what the conduct was.  Acting Presiding Justice Sanchez penned the 3-0 unpublished opinion.

Discovery, Sanctions: Where Litigant Mooted A Motion To Compel Against Third Party By Withdrawing The Motion, Discovery Sanctions Of $9,981 Were Reversed

General Discovery Statutes Did Not Justify The Reversed Result, And The Absence Of An Order Did Not Support Sanctions Under CCP § 1987.2.

            Although discovery sanctions are generally affirmed under an abuse of discretion standard, that is not always the case against third parties because different standards apply.

            Agnone v. Agnone, Case No. B321252 (2d Dist., Div. 3 Jan. 23, 2023) (unpublished) is a good illustration, even though it had to rely on City of Los Angeles v. PricewaterhouseCoopers, LLC, 84 Cal.App.5^th 466 (2022), a case which is pending for review before the California Supreme Court.

            What happened here is that a dissolution litigant subpoenaed a third-party witness Madick in the proceeding, with the dissolution litigant filing a motion to compel compliance with the subpoena under various California discovery sanctions, even though the dissolution litigants settled the action such that the motion to compel became moot.  Nevertheless, the trial court granted $9,981 in discovery sanctions against the third party.

            That order was reversed on appeal.  Relying on the City of Los Angeles majority decision (keeping in mind it is pending in front of our state supreme court), the 2/3 DCA panel adopted its reasoning, finding that one specific relied-on section only applied to a party (not a third party) and Madick did not unsuccessfully oppose the motion because it was withdrawn under another discovery section—no general discovery sanctions as far as “general abuse” could override specific discovery statutes not authorizing sanctions against Madick.

            The DCA then turned to CCP § 1987.2, which did relate to third-party subpoena motions to compel.  The problem is that no sanctions were authorized unless there was an order requiring compliance.  Because the dissolution litigant withdrew the motion to compel, no order was entered and, accordingly, no basis for sanctions was warranted.

Costs, Reasonableness Of Fees, Unlicensed Contractors: Owners Winning Small Amount In Unlimited Case Against Unlicensed Contractor Were Not Entitled To Attorney’s Fees Or Routine Costs

Reason Was That Owners Sought Overly Inflated Fees And Costs, With Fees Not Allowable Because They Did Not Relate To Construction Performance Under B&P § 1029.8.

            In a very contentious dispute between residential property owners and carpentry contractors, the trial and appellate courts in Romero v. Brocca, Case No. B316715 (2d Dist., Div. 1 Jan. 23, 2023) (unpublished) affirmed determinations that no one prevailed for purposes of an attorney’s fees award and that owners were not entitled to an award of a little over $41,000 in routine costs although they arguably did prevail for a costs award.  There was potential fee exposure for contractors because they were unlicensed so as to possibly trigger a fee award under Business & Professions Code section 1029.8.  However, the fee request by owners was properly denied because only a $6,500 down payment by them was involved, not unlicensed contractor performance relating to providing goods and services.  With respect to routine costs, owners submitted overly inflated costs requests, such that they were properly denied by the trial court in concluding the claimed costs were not reasonable or necessary for the litigation.

SLAPP: Lawyer’s Claim To Recover Contingency Fee Was Not Protected Conduct To Justify A SLAPP Motion

Client’s SLAPP Motion Was Properly Denied.

            In Fink & Associates v. Finato, Case No. B325604 (2d Dist., Div. 1 Jan. 19, 2024) (unpublished), a lower court denied former client’s attempt to SLAPP former attorney’s cross-claims to recover a contingency fee after a settlement was reached.  The 2/1 DCA affirmed because the nonpayment of monies is not protected conduct under the SLAPP statute.  (Century 21 Chamberlain & Associates v. Haberman, 173 Cal.App.4^th 1, 7.)  Even though a settlement was in the factual background of the case, the cross-claims focused on failure to pay attorney’s fees, nothing about the propriety of the settlement.

Reasonableness Of Fees: $102,737.50 Contractual Fees Award Over An $18,000 Dispute Was No Abuse Of Discretion

Hourly Rates Claimed By L.A. Attorneys Were Reasonable.

            What is the price for plaintiff losing a dispute on an $18,000 EDD payment worth against a defendant who prevailed on this issue in civil litigation?  The answer was provided in Golden Noodles, Inc. v. Souk, Case Nos. B322781/B327031 (2d Dist., Div. 4 Jan. 18, 2024) (unpublished).  Ta da!—the answer is $102,737.50 was a proper fee award for L.A. attorneys, a 40-year-plus attorney charging $350 per hour and a 10 year second attorney charging $100 per hour, attorneys winning the case for the defendant.

Arbitration: Fees Incurred By Out-of-State Attorney and Pre-Arbitration Fees Were Correctly Allowed By Arbitrator

Attorney Did Not Represent Client So As To Practicing In Unauthorized Fashion And Pre-Arbitration Fees Fell Within Broad Arbitration Clause.

            Arbitration fee awards are hard to overturn, as 1600 Barberry Lane 8 v. Mikles, Case No. D081775 (4^th Dist., Div. 1 Jan. 17, 2024) (unpublished) establishes that well, in line with prior posts under our “Arbitration” Category.  There, the appellate court affirmed an arbitrator’s decision to compensate an out-of-state attorney’s work effort because he only provided legal research to counsel authorized to practice law in California and to allow pre-arbitration expenses as within the scope of a clause allowing for reimbursement of “other tribunal fees and expenses.”  Merits and factual determinations by an arbitrator are hard to overturn.

Family Law, Special Fee Shifting Statutes: Court Of Appeal Decides Current Version Of Domestic Violence Prevention Act, Applies Retroactively To Cases After 2023, Justifying A Fee Award

Family Code Section 6344 Applies Retroactively.

            In Dragones III v. Calkins, Case No. B329659 (2d Dist., Div. 7 Jan. 17, 2024) (published), the 2/7 DCA confronted whether Family Code section 6344, effective 2023, made it easier for a prevailing petitioner to obtain fees and harder for a prevailing respondent to obtain fees in actions brought under the Domestic Violence Prevention Act.  The lower court awarded prevailing petitioner $6,000 in fees out of a $13,659 “ask.”  That award was affirmed on appeal.  Newly enacted Family Code section 6344, plus procedural rules relating to fees awards, warranted affirmance of the fee award based on application of retroactivity principles.

Costs: Routine Costs For Expert Only Testifying On Impermissible Legal Conclusion Reversed On Appeal

Those Costs Not Justified.

            Prevailing party, after seeking expert witness fees under a successful CCP § 998 offer, sought some fees for one expert testifying on legal conclusions.  Well, those costs were not allowed in Kreitzman v. Mercury Casualty Company, Case No. B325854 (2d Dist., Div. 7 Jan. 16, 2024) (unpublished).  The reason is not hard to divine, an expert testifying on legal conclusions is not a proper expert opinion such that the costs claimed on that expert were properly not allowed.

Costs: Because FEHA Costs Involve An Exercise Of Lower Court’s Discretion In Finding Case Was Frivolous, Costs Memorandum Is An Ineffective Means Of Seeking Costs

Same Rule Applies To Routine Costs Which Are Not A Matter Of Right.

            This case is a good reminder for practitioners representing prevailing parties to seek discretionary costs through a noticed motion, not just through a cost memorandum.

            In Neeble-Diamond v. Hotel California By The Sea, LLC, Case No. G061425 (4^th Dist., Div. 3 Jan. 11, 2024) (unpublished), a FEHA prevailing defendant was awarded routine costs of $180,369.41, via a cost memorandum not timely opposed, after the lower court denied an attorney’s fees request because the plaintiff’s case was not frivolous.   The 4/3 DCA reversed in a decision authored by Acting Presiding Justice Goethals.  The panel found that since costs in this area were discretionary (given the lower court had to determine the case was not frivolous), a cost memorandum was an ineffective means of seeking such costs.  It also cited Anthony v. City of Los Angeles, 166 Cal.App.4^th 1011, 1015-1016 in support, which came to the same conclusion in the context of expert costs which were not recoverable as a matter of right under CCP § 1032.

            BLOG UPDATE: We can now report that this opinion was certified for publication on February 5, 2024.

Costs: Costs Related To Noticed, But Untaken, Depositions And Service Related Thereto Are Not Subject To A Blanket Exception Under The Routine Costs Statutes

Rather, The Test Is Whether Whey Were Reasonably Necessary To The Litigation At The Time Incurred.

            In Garcia v. Tempur-Pedic North America, LLC, Case No. E079859 (4^th Dist., Div. 2 Jan. 8, 2024) (published), after dismissal by plaintiff of an initial suit against a manufacturer for an allegedly defective mattress, manufacturer moved for costs against plaintiff, with the lower court awarding routine costs for noticed, but untaken depositions, for obtaining a certificate of nonappearance, for a last minute cancellation of a deposition by plaintiff’s counsel, for noticing a deposition of a fact witness who subsequently died, and for service of process costs associated with the noticed depositions.  The 4/2 DCA affirmed, rejecting the notion that such costs were subject to a blanket exception; rather, the test was whether they were reasonably necessary to the litigation at the time incurred--“[h]indsight is no guide here.”  Prior to dismissal, these costs were reasonably incurred by manufacturer to properly depose fact and nonretained expert witnesses, even if the depositions did not occur for reasons not forseeable by manufacturer.

Family Law, Fee Clause Interpretation, Indemnity: Some Parts Affirmed, Some Parts Reversed And Remanded In Appeal Involving Community Or Separate Property Liability For Indemnification Obligations

Also, Fee/Costs Award Under Indemnity Agreement Only Recoverable Against Ex-Husband, A Signatory To The Agreement, But No Fee Exposure Under The Third-Party Indemnity Provision; Needs-Based Fees Paid To Both Spouses Are Separate Debts Of Husband For His Need-Based Fees And Community Debts For Fees To Both Spouses.

            Acting Presiding Justice Moore, in In re Marriage of Nakamoto and Hsu, Case No. B061363 (4^th Dist., Div. 3 Jan. 3, 2024) (unpublished), dealt with a written indemnity agreement between ex-husband and his siblings (with ex-wife not being a party to the agreement).  Former spouses believed that the siblings owed ex-husband roughly $3 million, which had been transmuted to community property, proceeding to a trial at which former spouses lost.  The lower court awarded siblings over $2.4 million in costs and fees against ex-husband separately, ex-wife separately, and community.

            On appeal, the 4/3 DCA panel agreed that only the community, not ex-wife separately, were liable for ex-husband’s indemnity obligations under Family Code section 910(a), because Family Code section 913(b) did not visit this obligation on her separately.  The lower court also erred in including attorney’s fees that siblings incurred in litigating against ex-husband as to ex-wife.  However, ex-husband was responsible for these fees under the indemnity fees clause, but not a third-party claims provision.  Finally, needs-based fees awarded to both former spouses by siblings under Family Code section 2030 were a separate obligation of ex-husband as well as a community obligation. 

Employment: 2/2 DCA Decides That Routine Costs To Prevailing Party Employer Parties Are Recoverable Under PAGA

It Found No Language Precluding The Result, Disagreeing With Cruz On This Issue.

            Unpublished decisions can be very instructive.  A recent one, Knowles v. Longwood Mgt. Corp., Case No. B314165 et al. (2d Dist., Div. 2 Jan. 3, 2024) (unpublished), is very instructive—prevailing PAGA defendants may be able to get routine costs under CCP § 1032, even if this case is not citable.  (Might be in the future!)

            Certain alleged employers prevailed in a PAGA case.  They moved for routine costs of $23,627.08 against losing employees, a request denied by the lower court.  The Second District reversed in an unpublished decision.

            The appellate court decided that it could not discern any “PAGA exception” to awarding prevailing party routine costs to an employer under section 1032 because employers were not precluded from obtaining routine costs. (See Lab. Code, § 2699(g)(1).) It expressly disagreed with any conclusions differently reached in Cruz v. Buffett, Inc., 57 Cal.App.5^th 221 (2020) because it did not expressly involve PAGA provisions.  Watch for developments on this one!

Appealabilty, Costs: Only Adding Costs To A Judgment, Through An Amendment, Does Not Rest Time To Appeal From The Original Judgment

No Substantial Modification Was Obtained By Adding Costs To A Judgment.

            In Crokin v. Primrose, Case No. G061959 (4^th Dist., Div. 3 Jan. 3, 2024) (unpublished), authored by Presiding Justice O’Leary, the 4/3 DCA agreed that adding routine costs, attorney’s fees, and interest to an original judgment through an amended judgment did not reset the time to appeal from the original judgment because the changes were not substantial.  The costs award was separately appealable, such that it should have been separately appealed.  (Torres v. City of San Diego, 154 Cal.App.4^th 214, 222 (2007); Dakota Payphone, LLC v. Alcaraz, 192 Cal.App.4^th 493, 504-505 (2011).)

Fee Clause Interpretation, Section 1717: Lower Court Erred In Denying Fees To A Parties’ Successor Under An Easement Settlement Agreement

Fees Clause Did Encompass The Parties And Their Successors.

            In Elusive 8307, LLC v. Canterman, Case No. B321096 (2d Dist., Div. 4 Jan. 3, 2024) (unpublished), prior owners of plaintiff's and defendant's adjacent properties entered into a settlement agreement granting an easement to plaintiff over a portion of defendant’s property.  Plaintiff lost an easement interpretation dispute with defendant, but defendant was denied attorney’s fees under an attorney’s fees provision in the settlement agreement.  The 2/4 DCA panel reversed.  Plaintiff did seek to interpret the easement settlement agreement so that its claims were founded “on the contract” under Civil Code section 1717.  Because both parties were successors-in-interest under the settlement agreement, that meant the fees clause was binding on subsequent parties.

Year In Review—2023

Year-End Wrap Up by Mike, Marc, and Shanna for Our Top 10 Decisions

Ronald Reagan Federal Building and Courthouse at 411 West Fourth Street, Santa Ana, California. Carol M. Highsmith, photographer. Between 1980 and 2006. Library of Congress.

            As we have done over the years, this blog provides its attorney’s fees/costs decisions for 2023, again emphasizing that there were many other decisions of consequence over the last year (and we are behind a little bit, but post in early 2024, and narrow it to 10 rather than 20 decisions because many others were in very niche areas of the law).  However, these were our favorites and with the order of the opinions not indicating their importance.  Co-contributors Mike and Marc would like to thank Shanna for her contributions over the last few years, because she did great posts and was invaluable to keeping the calattorneysfees.com blog up to date, so she is included in the headline as she should be.  With that said, here are our top 10 decisions for 2023, and a Happy 2024 New Year to all our readers.

1.    Political Reform Act Fee Shifting Provision. Travis v. Broad (2023) 14 Cal.5^th 411:  Government Code section 91003(a), the  discretionary fee-shifting provision in the Political Reform Act, is asymmetrical in nature, such that attorney’s fees and costs should normally be awarded in favor of a prevailing plaintiff, but a prevailing defendant should only be awarded where plaintiff’s suit was objectively without foundation when brought or becomes so during its prosecution—importing case law restrictions from the civil rights and public interest contexts.

2.    Section 998.  Madrigal v. Hyundai Motor America (2023) 90 Cal.App.5^th 385, review granted S280598:  On-the record settlement was a judgment triggering the operation of CCP § 998, a 2-1 opinion, where a judgment of dismissal was entered as part of a settlement.  This case must be considered when entering into settlements with dismissals where there have been earlier 998 offers, although it is no longer citable but instructive.  However, the California Supreme Court granted review, framing the issue this way: “This case presents the following issue: Do Code of Civil Procedure section 998’s cost-shifting provisions apply if the parties ultimately negotiate a pre-trial settlement?”  So, this issue has not been settled yet.

3.    MFFA. Soni v. Cartograph, Inc. (2023) 90 Cal.App.5^th 1:  Client confirming a small arbitration award having mixed results was a prevailing party under MFAA fee shifting provision.

4.    Appealability/Sanctions. Deek v. Developers Investment Co. (2023) 89 Cal.App.5^th 808:  Monetary sanctions, not intertwined with non-appealable less-than-all issue sanctions, can be entertained on appeal.

5.    Class Actions/Copyright Act. Lowery v. Rhapsody International, Inc. (9^th Cir. 2023) 75 F.4^th 985:  $1.7 million fee award to class counsel in copyright infringement case was reversed and remanded where claims-made benefit to the class was valued at only $52,841.05; district judge, on remand, needed to scrutinize actual value to the class and proportionality of fee award to the class benefits.

6.    Private Attorney General. City of San Clemente v. Dept of Transp. (2023) 92 Cal.App.5^th 1131:  HOA’s fee request was properly denied because its litigation was not a catalyst for changes, and HOA did not succeed in invalidating a settlement agreement as ultra vires.  Environmental Parties’ fee denial was reversed and remanded, because a public interest was advanced, and the Joshua S. exception is narrow in nature in the private attorney general area.

7.    Civil Rights/ADA. Fernandez v. 23676-23726 Malibu Road, LLC (9th Cir. 2023 74 F.4^th 1061: An American with Disabilities Act (ADA) plaintiff whose case is dismissed for lack of standing cannot be exposed to attorney’s fees claimed by the defense under the ADA’s fee provision, 42 U.S.C. § 12205; however, plaintiff may be exposed to fees as sanctions under F.R.C.P., Rule 11, if can be shown that plaintiff’s action was frivolous in nature.

8.    Judgment Enforcement. Nash v. Aprea (2d Dist., Div. 7 Oct. 3, 2023) 2023 WL 6399479:  Even though judgment was entered with small $1,000 fee award based on a contractual fees cap, post-judgment enforcement fees under CCP § 685.040 were not capped because underlying judgment incorporated a fees award; § 685.040 fees were almost 30 times more than the $1,000 fee award in the judgment.

9.    Family Law. In re Marriage of Whitman (Cal.App. Dec. 29, 2023) [partially published]:  In a case involving an ex-husband, a hedge fund founder, who incurred multi-millions in fees defending himself in a criminal insider trading case and a parallel SEC civil proceeding, the appellate court then considered the lower court’s allocations of fees between ex-husband and wife, determining various issues this way:  (1) wife was not liable for any criminal defense fees, because this was a separate debt of ex-husband under Family Code section 2623 [neither tort nor contract claims, but criminal fees incurred after their separation]; (2) wife was liable for $290,000 in fees (an allocated amount, much smaller than the lion share of the $9.4 million in fees apportioned to husband) for the SEC civil proceeding because the community obtained some benefit (Family Code, § 2625); and (3) wife was liable for about $641,000 in fees incurred by the hedge fund in intervening in the civil case because she tried to wind it down, although it was producing income at the time. 

10.    Ethics/Lodestar.  Snoeck v. ExakTime Innovations (Cal.App. 2023) 2023 WL 7014096:  Appellate court sustained a lower court’s application of a .4 negative multiplier to a fee request based on plaintiff’s counsel’s incivility throughout the litigation, closely following a similar rationale adopted in Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5^th 734, 747.