Requests Totaling $427,102.50 For Partially Prevailing Defendants/Cross-Complainants Reduced To Awards Totaling $141,904.94 Based On Failure to Specifically Apportion.
Apportionment of attorney’s fees among claims generally is a discretionary call for the trial judge, even though allocation should be undertaken unless the attorney work was inextricably intertwined on the claims (which is an after-the-fact determination by the judge hearing the fee motion). However, if a trial judge asks you to allocate, you better apportion or suffer the consequences, as demonstrated by the result in West Sacramento Hospitality LLC v. S.A.V. Texas, LLC, Case No. C099575 (3d Dist. Jan. 31, 2025) (unpublished).
There, plaintiff voluntarily dismissed its complaint before trial (which triggered the Santisas rule where fee recovery could not be had on the contractual claim but was allowable on two tort claims based on the breadth of a contractual fee clause), and defendants prevailed on two of three claims of their cross-complaint. Based on these partial successes, the trial judge wanted detailed allocation by defendants/cross-complainants on the compensable work (the tort claims in the complaint and the two claims in the cross-complaint on which they prevailed). Fee claimants conceded it was difficult to apportion, but they used a mechanical 75/25 allocation to the complaint/cross-complaint for entries hard to apportion, asking for a total of $427,102.50 in fees. The trial judge applied a more rigorous apportionment: 100% of entries for which work could be attributable for segregated work on the two pleadings (50/50 between the complaint and cross-complaint) and then reduced the total amount by a third based the percentage of success on the two sets of pleadings, all told awarding a total of $141,904.94 in fees.
Fee claimants appealed, but the Third District affirmed the fee awards. Where a lower court asks for more information and detailed apportionment, these requests need to be honored and the abuse of discretion standard applies, especially given the deference to the lower court’s view that more could have been done to properly allocate. With respect to the argument that the work was intertwined, fee claimants did not show it was impossible to allocate. The one-third reduction was proper based on Santisas when it came to the complaint and was also correct based on partial success being a factor which can be used in adjudging fee motions when it came to the cross-complaint.
BLOG OBSERVATION—This case teaches that care needs to be taken in billings where dueling pleadings are at issue and/or multiple represented parties are involved. No one knows how a case can come out; careful billing substantiation makes life easier, and avoids the results here, if the trial judge asks for apportionment.