Special Fee Shifting Statutes: A Prevailing Defendant Is Entitled To Attorney’s Fees For Defeating A Penal Code Section 502 Claim

With An Important “If”: If Plaintiff’s Case Was Objectively Without Foundation When Brought Or Plaintiff Continued To Litigate After It Became So.

               Hay v. Marinkovich, Case No. D082561 (4^th Dist., Div. 1 Feb. 6, 2025) (published) held that a prevailing defendant in a Penal Code section 502 case (section 502 prohibits an unauthorized use of any computer system for an improper purpose) is entitled to attorney’s fees under section 502(c) but only where plaintiff’s claim was objectively without foundation when brought or plaintiff continued to litigate the case after it became so.  Because plaintiff’s case was not frivolous, the lower court exercised its discretion correctly by denying the defendant’s fee request.