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.