CALIFORNIA ATTORNEY'S FEES

Consumer Statutes, Lodestar, Reasonableness Of Fees: Lower Court Awarding Fresno Rates To Attorney Litigating In Orange County And Slashing Fees/Cost Request By 82.9% Had Its Award Reversed And Remanded On Appeal

Venue Rates Had To Be Used And The Substantial “Haircut” Needed More Explanation.

               What happened in Tidrick v. FCA US LLC, Case No. G063186 (4^th Dist., Div. 3 June 26, 2025) (unpublished) is that lemon law plaintiffs requesting $82,719.33 in fees and costs ($74,275 in fees and $8,444.33 in costs) were only awarded a grand total of $15,000—an 82.9% reduction.  That award did not stand up on appeal for two main reasons, resulting in a reverse and remand in a 3-0 opinion authored by Justice Delaney.

               The first reason for the reversal was that the lower court applied Fresno County rates for his Fresno attorney, even though the case was properly venued in Orange County.  The higher venue rates needed to be applied.

               The second reason was that it was unclear whether the proper lodestar methodology was followed by the lower court given (1) there was no explanation of how the costs were factored into the grand total, and (2) there was no clear explanation for the substantial “haircut.”  A remand was necessary to apply Orange County consumer attorney rates, to properly utilize the lodestar methodology, and to clarify if the original award included an award of costs.

               BLOG OBSERVATION—The panel did cite Warren and Morris with respect to the “haircut” issue.  We observe that the Second District, in Cash v. County of Los Angeles, discussed in our June 1, 2025 post, found that it followed Morris over Warren on an across-the-board reduction.  Cash was not discussed in Tidrick, but the situation may be distinguishable based on the substantial slash in the fee request rather than just a set across-the-board reduction.

Deadlines, Fees As Damages: Former Counsel In Contempt Proceeding For A Prevailing Party Was Entitled To A Fee Award Under CCP § 1218

Fee Request Was Reduced, But Lower Court Found That Prevailing Party’s Subsequent Counsel’s Withdrawal Of A Prior Timely Fee Motion Allowed Former Counsel A Reason To Still Have It Heard In The Lower Court’s Discretion.

               In Vista Land, LLC v. Robinson, Case No. B331975 (2d Dist., Div. 3 June 26, 2025) (unpublished), defendants were found guilty of contempt and were hit with an adverse award of attorney’s fees by the prevailing party, expressly allowable under CCP § 1218.  The lower court allowed former attorney to receive $61,875 in fees, inclusive of a 1.5 multiplier, much reduced from the requested $155,295.79 inclusive of a 1.75 multiplier.  Also, former counsel was allowed to proceed with an untimely fee motion because his client’s subsequent counsel inexplicably withdrew a timely filed fees motion.  The appellate court affirmed.  There was good cause to allow the renewed fee motion to be considered, with the reduced amount no abuse of discretion given that the lower court reduced the requested hours from 146 to 75. 

Arbitration, Sanctions: $183,304 In Sanctions Relating To Abandoned Arbitration Proceeding Awarded Against Employer Not Timely Paying Arbitration Expenses Under CCP § 1281.98(c)(1)

Sanctions Are Awardable Where Fees Were Expended In Terminated Arbitration Proceedings.

               In an area where there has been a lot of litigation, an employer faces litigating in court and paying sanctions to an employee in a situation where employee wants to arbitrate but employer fails to adhere to the payment deadlines in CCP §§ 1281.97-1281.99.  Employer all too well learned the repercussions of not timely paying in Guffey v. Bokit, Inc., Case No. B333030 et al. (2d Dist., Div. 2 June 26, 2025) (unpublished).  After not timely meeting the required deadlines, the appellate court affirmed a $183,304 attorney’s fees award to employee given that there was extensive discovery activity in the later terminated arbitration proceeding.  Those sanctions were allowable under section 1281.98(c)(1), with the amount of the award being no abuse of discretion. 

Section 998: Defendants Held Jointly And Severally Liable Did Not Beat Jury Verdict So As To Escape Costs Under Section 998

No Non-Economic Damages Were Sought In Vehicle Property Injury Case, So Appealing Defendants Did Not Fashion A Successful 998 Offer.

               Defendants were held jointly and severally liable in a vehicle property injury matter where plaintiff recovered a $204,528 jury verdict damages award as against them and others, based on damages to plaintiff’s truck and destruction of lamb products in the truck.  Defendants’ motion to tax routine costs was denied, although they appealed and argued that a $75,000 CCP § 998 offer was more favorable than the eventual verdict.

               The 4/1 DCA rejected this argument in JBS Carriers v. Mendoza, Case No. D083415 (4^th Dist., Div. 1 June 23, 2025) (unpublished).  Defendants’ argument that they were only 20% responsible for the jury verdict was belied by the joint and several nature of the award, especially given that no non-economic damages were sought (which would have been only several in nature). 

Family Law: Denial Of Needs-Based Family Code Section 2030 Fees Reversed Because Lower Court Made No Findings Of Ability To Pay

Consideration Of Equitable Factors Other Than Disparity and Ability To Pay Are Not Allowable Under Section 2030.

               In Marriage of Saedi v. Kadivar, Case No. B340089 (2d Dist., Div. 2 June 23, 2025) (unpublished), the lower court denied a Family Code section 2030 needs-based fee request by ex-wife in connection with child support modification proceedings.  The denial was reversed and remanded.  The problem was that, under recent amendments to section 2030, the lower court failed to make findings about the ability to pay.  Under the amendments, a family law judge must make findings on disparity in access and ability to pay, with the failure to make findings being reversible error if the error is prejudicial.  It likely was, because the record suggested ex-husband did have the ability to pay.  However, the interesting part of the decision is that other equitable factors other than disparity or ability to pay are irrelevant.  Here is what the appellate panel had to say: “The statute’s requirement of a finding that a fees award is ‘appropriate’ is therefore limited to factors relating to disparity to access and ability to pay for legal representation. Such an interpretation of section 2030 is consistent with other provisions of the statute. Section 2030, subdivision (a)(1), mandates the trial court to ensure each party has access to legal representation to preserve each party’s rights by ordering one party to pay the other party whatever amount reasonably necessary based on an income and needs assessment. Thus, if a court could consider equitable factors unrelated to the parties’ disparity in access and ability to pay, this would contravene the statute’s express purpose.”

Fee Clause Interpretation: 4/3 DCA Affirms Substantial Fees Award Against Tenants In A Dana Point Harbor Slip Dispute

Lower Court Cut Fees Request In Half, Which Was Erroneous, But Respondent’s Failure To Appeal Means The Reduction Did Not Aggrieve Appellants, the Tenants.

               In Papageorges v. Dana Point Harbor Partners, Case No. G063688 (4^th Dist., Div. 3 June 20, 2025) (unpublished), the upshot from this opinion is that a respondent may want to cross-appeal when a lower court reverses a “full fees grant” tentative decision and instead grants about a 50% reduction in its final order, when that final order is appealed by the other side.

               Here, tenants of a slip in Dana Point Harbor sued for what they claimed were improper slip rent increases, arguing that a Master Lease between defendant DPHP and City of Dana Point made tenants third-party beneficiaries.  DPHP and tenants were parties to a Slip License Agreement (SLA) having a broad fees clause mandating fee recovery to the prevailing party in “litigation relating to the subject matter of this Agreement.”  The lower court granted summary judgment to DPHP, concluding tenants were not third-party beneficiaries of the Master Lease and the slip fees did not otherwise violate the SLA.  DPHP filed a fees motion, seeking recovery of all fees defending the lawsuit to the tune of $365,651.  The lower court’s tentative was to grant the request; but, after oral argument, it cut the fee request by roughly 50% to apportion the recoverable fees to those incurred in defending the SLA related causes of action.  Only Tenants appealed.

               The 4/3 DCA determined that DPHP was the prevailing party based on the broad fees clause because both the Master Lease Agreement and SLA were encompassed in the language of the clause, which was mutual in nature (CCP § 1021)—such that the lower court erred in relying on Civil Code section 1717, but that was no problem because there was fee entitlement anyway.  However, the appellate panel determined that the 50/50 allocation was erroneous because the “subject matter” language covered both the Master Lease and SLA.  Even though DPHP was entitled to all its requested fees, it did not appeal such that tenants were not aggrieved by the lower court’s error, leading to an affirmance of 50/50 allocation fee order.  Acting Presiding Justice Sanchez authored this opinion.

POOF!, SLAPP: Cross-Defendant’s $146,495 SLAPP Fee Award Goes POOF! On Appeal

Remand Was Required Because Appellate Court Reversed SLAPP Grant On Three Out Of Six Cross-Claims.

               City of San Jose v. Gradetech, Inc., Case No. H051462 (6^th Dist. June 17, 2025) (unpublished) is a situation where a cross-defendant successfully SLAPPed a cross-complaint with six causes of action brought by the City and where the lower court later awarded cross-defendant $146,495 (out of a requested over $282,000) in SLAPP fees, prompting City’s filing of an appeal.  The Sixth District affirmed the SLAPP grant on three cross-claims, but it reversed the grant on three other cross-claims.  This required a reassessment of the fee award.  Although expressing no opinion on the amount of fees to be awarded, the appellate court did note that City’s partial success on appeal would be a relevant factor for the lower court’s consideration.

Costs: Dismissal Of Unlawful Detainer Defendant Gave Entitlement To Recovery Of Mandatory Routine Costs

Lower Court’s Determination That No Party Prevailed For Routine Cost Purpose Was Reversed With Directions To Award Costs To Dismissed Defendant.

               In Shapell SoCal Rental Properties, LLC v. Chico’s FAS, Inc., Case No. G063663 (4^th Dist., Div. 3 June 17, 2025) (unpublished), tenant and landlord were involved in an Orange County unlawful detainer action and a Los Angeles County breach of lease action.  After a prior OC appeal resulted in the vacating of a default and a default judgment for possession in the UD action, tenant answered the OC action.  Earlier, while the earlier appeal was pending, tenant vacated the premises because the lower court denied a stay of execution request relating to the judgment for possession.  In the Los Angeles action, tenant served a CCP § 998 offer on landlord, an offer which was accepted, resulting in entry of a judgment for the § 998 offer amount plus costs.  Landlord unsuccessfully moved for summary judgment in the UD action.  At an OSC re dismissal hearing in the UD action, the lower court dismissed the action without prejudice.  Tenant filed a costs memo for $6,348, landlord filed a costs memo for $8,799.37, and both sides filed motions to tax costs.  The lower court found no side prevailed, exercising its discretion to not award costs to anyone. 

               The 4/3 DCA, in an opinion authored by Acting Presiding Justice Sanchez, affirmed the denial of costs to landlord but reversed the denial of costs to tenant—directing that it be awarded $6,348.  The basis of the reversal was CCP § 1032(a)(4), which makes it mandatory to award costs for a dismissal entered in favor of defendant—a legal question reviewed de novo.  This mandatory nature of the award was no different in UD actions (Mitchell Land & Improvement Co. v. Ristorante Ferrantelli, Inc., 158 Cal.App.4^th 479, 483 (2007)), with plaintiff’s clever arguments to preempt the statute found unavailing on appeal.  

Section 998: Cross-Defendant’s 998 Offer Was Invalid, So It Did Not Dilute Recovery By Defendant/Cross-Complainant On Other Defense Claims

Be Careful What You Put In Your 998 Offers, Don’t Overreach.

               In T&R Painting and Drywall v. Town Building & Development, Case Nos. B330375 et al. (2d Dist., Div. 6 June 17, 2025) (unpublished), there was a convoluted dispute between a plaintiff subcontractor and a defendant general contractor, with general contractor bringing a cross-complaint which was voluntarily dismissed during the litigation.  Plaintiff sub won a jury verdict, but it was overturned on a JNOV motion based on an unlicensed contractor issue.  Later, prevailing party sub was awarded $24,396.06 in costs and $226,400 in attorney’s fees.  Sub’s appeal was unsuccessful on overturning the costs/fees order.  Sub argued that it made a successful CCP § 998 offer on general contractor’s cross-complaint, which was not accepted.  The problem was that the 998 offer was invalid: it requested not only a dismissal of the cross-complaint but a broader release of all claims, known and unknown.  Because this § 998 offer language was overbroad, there was no basis to upset the costs/fees award.  (Ignacio v. Caracciolo, 2 Cal.App.5^th 81, 86-87 (2016).)

SLAPP: $14,037.27 SLAPP Fees/Costs Award Reversed And Remanded Because Appellate Court Found One Claim Should Not Be Granted

Trial And Appellate Fees/Costs Remanded To The Trial Court, Given Cross-Defendants’ Partial Success.

               Wald v. Martin, Case Nos. B335960 et al. (2d Dist., Div. 6 June 16, 2025) (unpublished), illustrates how a partial reversal of a SLAPP grant generally leads to a reversal and remand of the subsequent fees/costs award to a prevailing defendant or cross-defendant.  That is what happened.  Cross-complainant’s complaint was SLAPPed in entirety, with the cross-defendant winning $14,037.27 in mandatory fees and costs under the SLAPP statute.  However, on appeal, cross-complainant obtained reversal of a SLAPP grant on one claim, enough to require a restudy of fees/costs (both trial and appellate) to the partially successful cross-defendant.  (Maleti v. Wickers, 82 Cal.App.5^th 181, 232-233 (2022).) 

Construction, Costs, Ethics, Indemnity, Fee Clause Interpretation, Section 1717: $4.176M Contractual Fee Award To General Contractor And Against Owner Affirmed On Appeal, But Expert Witness Costs Award To General Contractor Reversed As A Matter Of Law

Case Explores Fee Clause Interpretation, An Award Of Fees To An Unlicensed Associate Supervised By A California Attorney, And An Award Of Expert Witness Costs Which Were Not Pled Or Proven As Damages.

               The Whiting-Turner Contracting Co. v. 250 Fourth Development LP, Case No. A169470 (1^st Dist., Div. 5 June 13, 2025) (unpublished) is case where both sides got something on appeal, although construction general contractor was probably more pleased.  However, it did explore a plethora of issues of interest to us as fee bloggers.

               General contractor won a construction contract breach case against owner.  Later, the lower court awarded general contractor $4,716,845.21 in attorney’s fees under contractual construction agreement provisions in owner’s favor (made reciprocal by Civil Code section 1717) as well as $619,516 in expert witness costs.  On appeal, general contractor retained the fee victory, but owner overturned the expert witness costs award.

               Fee Clause Interpretation/Section 1717.  The fee award was sustained based on a broadly worded fee recovery clause (see AIA Owner/Contractor Forms A102-2007) in the owner/contractor agreement, which did allow for direct recovery by owner yet became reciprocal for general contractor based on section 1717.  Even though there was ending indemnity language which might have led to a different result in isolation, construction of the entire clause showed general fee entitlement to general contractor by virtue of section 1717.  (Because this relates to AIA contracts, it should be instructive to construction practitioners in the cited contractual provisions.)

               Ethics—Unlicensed Attorney Compensation.  Owner challenged some fees awarded to an unlicensed associate, before he was admitted pro hac vice in California, with a referee awarding fees to the associate at a paralegal rate.  The appellate court observed that the Birbrower general prohibition against awarding fees to unlicensed attorneys does have exceptions as to registered in-house counsel, out-of-state attorneys in arbitration proceedings, and out-of-state attorneys on short-term litigation projects (CRC, rules 9.46, 9.43, 9.47).  Because the out-of-state associate was supervised by an actively licensed California attorney, CRC rule 9.47(c)(4) likely applied, but it was made unnecessary by the referee’s decision to award fees at a lower paralegal rate (not tantamount to the practice of law)—more underscored because the associate did not make court appearances or provide legal advice to the client.

               Expert Witness Fees as Costs.  This related to an award of fees for expert witnesses not ordered by the court, which is not allowed under CCP § 1033.5(a)(8), (b)(1).  However, that did not end the issue as general contractor was relying on the contractual provision allowing recovery of fees and costs.  The appellate panel did observe that most  intermediate appeal decisions supported owner’s position that such expert witness fees must be pled and proven as damages at trial, not under a cost memorandum.  But it then confronted Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC, 185 Cal.App.4^th 1050, 1056, 1058-1060, 1065-1066 (2010), which held otherwise but in the context of a reciprocal expert fee contractual provision inuring to the overall “prevailing party.”  The 1/5 DCA found the Thrifty contract provision distinguishable because the expert witness costs provision in the case before it only benefited owner—the result being that section 1717’s reciprocity principles could not make it applicable in favor of general contractor.  This is an important nuance, because it shows that unilateral costs provisions will only be enforced in favor of the benefited unilateral party. 

Deadlines, Family Law: Ex-Wife’s Challenge To $193,000 In Attorney’s Fees Under Family Code Section 271 Or Contractual Marital Stipulation Fee Clause Affirmed On Appeal

Although Notice Of Motion For Appellate Fees Was Untimely, Record Showed That The Lower Court Granted An Extension Request To Ex-Husband As Moving Party.

               In Marriage of Richards, Case Nos. G062449 et al. (4^th Dist., Div. 3 June 13, 2025) (unpublished), ex-wife appealed a Family Code section 271 sanctions and contractual marital stipulation fee award of $193,000 (out of a requested $234,000), inclusive of some appellate fees for husband winning a prior appeal.  Appellant’s appeal was unsuccessful.  With respect to fee entitlement, she could not attack the marital stipulation entered as a judgment through a collateral attack below, but only through an appeal which was not done.  (Hobbs v. Duff, 43 Cal. 485, 490 (1872).)   With respect to the appellate fees, ex-husband’s counsel was candid with the lower court that the appellate fees motion was untimely, but counsel lobbied for an extension and was granted fees—implicitly showing the extension was granted.

Sanctions, SLAPP: Plaintiff Losing A SLAPP Motion On A Cross-Complaint Was Properly Not Granted 128.7 Sanctions For A Mistaken Payment Statement

Cross-Complainants Did Fess Up To The Problem, With The Lack Of A Reporter’s Transcript Of The Sanctions Hearing Further Showing No Abuse Of Discretion In The Denial Of The Sanctions Request.

               Although we take the cases as we find them for posting purposes, the next one was a dispute over an apparent snafu in sending a car repair settlement check of $10,511.74 to MAACO, which might have been absconded by someone but resulted in a cross-claim and then a subsequent SLAPP motion as to the cross-complaint.  That led to more litigation, namely the appellate opinion in Mora v. Menjivar, Case No. A169997 (1^st Dist., Div. 1 June 12, 2025) (published; discussion on sanctions motion unpublished).  You can judge, for yourselves, whether litigation and judicial resources were served with what happened in this case.

               Plaintiff’s SLAPP motion leveled at the defense’s cross-complaint was denied.  And, that result was affirmed on appeal.  Everyone should read this, because it does discuss timeliness of SLAPP filings, confirming that a supporting memorandum and declarations must be filed within the 60-day deadline for filing SLAPP motions with respect to having a motion timely considered.  With respect to the sanctions motion by plaintiff, it was directed to a misstatement that plaintiff had received the settlement payment, which was corrected as being mistaken—as well as admitted to.  The denial of the sanctions motion based on these circumstances was no abuse of discretion, not to mention that plaintiff did not provide a reporter’s transcript to show the lower court’s decision-making on such discretionary motion was erroneous.

Probate, Substantiation Of Reasonableness Of Fees: Removed Trustee’s Failure To Challenge Fee Entitlement Under Judgment Affirmed In A Prior Appeal Also Disposed Of Same Challenge In A Second Appeal

However, The Lower Court Did Reduce The Fee Request Because of Unusually Redacted Time Entries.

               The Fifth District, in Trunick v. Calloway, Case No. F086766 (5^th Dist. June 11, 2025) (unpublished), affirmed an award of attorney’s fees to a beneficiary who was instrumental in removing co-trustees in a probate dispute.  In earlier proceedings, the lower court had awarded beneficiary prejudgment attorney’s fees and costs under Probate Code section 17211(b) relating to trustees’ actions with respect to the removal petition.  The judgment in the case was affirmed in an earlier appeal, with the co-trustees not challenging the fees/costs award.  While the appeal was pending, beneficiary moved for more fees and costs under the judgment.  The lower court awarded beneficiary $77,073.50 in fees (out of a requested $99,156) and $11,558.35 in costs (the total ask).  Co-trustees appealed again, with the same result—the fee award was affirmed.  The reason was that co-trustees should have challenged fee entitlement in the prior appeal, but they did not such that the appellate court affirmed—losing jurisdiction on any fee entitlement issue.  However, the lower court did reduce the fee request based on unduly redacted time entries, a record substantiation issue which practitioners must be attuned to.  Also, the appellate court observed that the lack of a reporter’s transcript on the fee hearing hampered review, with the lower court’s decision presumed to be correct.

SLAPP: Two Sets Of Defendants Winning SLAPP Motion Respectively Were Awarded $9,882.14 In Fees And $43,564.90

Self-Represented In Pro Per Plaintiff Could Not Surmount Abuse Of Discretion Standard On Amount Of Fees.

               We know by now that the SLAPP statute has a mandatory fee-shifting provision in favor of successful defendants.  So unless timeliness is an issue, the amount of the fees to be awarded is usually the pivotal issue.  In Doe v. NBCUniversal Media, LLC, Case Nos. H050444 et al. (6^th Dist. June 11, 2025) (unpublished), two sets of defendants were awarded, respectively, fees of $9,882.14 and $43,564.90 for winning SLAPP grants.  Plaintiff, in pro per on appeal, did not challenge the larger award and was unable to shake the abuse of discretion standard sustaining the lower award. 

Prevailing Party: In Contractual Fees Case, Attorneys’ Fees Request Of $253,440 Properly Denied To Plaintiff Winning A $256,851 Verdict

No Prevailing Party Discretionary Determination Affirmed On Appeal, With Concurring Justice Also Observing That The Lack Of A Reporter’s Transcript Of The Fee Hearing Was Fatal.

               In Deep Green Nation Collision, Inc. v. Park, Case No. B339499 (2d Dist., Div. 5 June 9, 2025) (unpublished), plaintiff won a jury verdict of $256,851 on breach of contract (but only on one of four alleged breaches) and conversion claims, but it lost four claims on a nonsuit and another quiet title claim in the jury trial.  Based on a comparison of the relief requested in the complaint (with plaintiff only winning about 25%) and in plaintiff’s trial brief (getting worse, only about 14%), the trial judge found that plaintiff was not a prevailing party under a contractual fees clause, where plaintiff requested $253,440 in fees.

               The 2/5 DCA affirmed on appeal in a 3-0 opinion, including a concurring opinion.  The majority saw no reason to disturb the “no prevailing party” determination under an abuse of discretion standard given the mixed results.  That was still the result, even though a $1 million punitive damages request was not properly factored into the “prevailing party” analysis, because it was a harmless error—plaintiff still had mixed results which would not impact the ultimate lower court conclusion.  The dissenting justice (Justice Baker) concurred in the result, but he based this upon plaintiff not providing a reporter’s transcript of fee and other proceedings to determine if there was an abuse of discretion. 

Sanctions: Sanctions Orders Against Probate Sibling’s Former Attorney Relating To Change Of Venue Motion Both Reversed On Appeal

128.5 Sanctions Motion Did Not Comply With Procedural Prerequisites, While Her Status As Former Counsel Did Not Give Proper Opportunity To Contest The Fees Awarded Under CCP § 396b.

               In Estate of Miller, Case No. G064476 (4^th Dist., Div. 3 June 6, 2025) (unpublished), the underlying matter involved a dispute between two siblings over the estate of their deceased brother.  One of the siblings moved to change venue, moving the case from San Bernardino to Riverside County.  Another party sought sanctions for the venue change under both CCP § 128.5 and § 396b (the latter being the venue transfer fee-shifting statute) against moving sibling’s former attorney.  The lower court granted $8,100 in fees under § 396b and the same amount under § 128.5, but it appears not to have done double-dip orders.  Former attorney appealed and obtained a reversal, one as a matter of law and the other with a remand.  The 128.5 order was reversed because it was not made in a separate motion and did not give compliant 21-day safe harbor notice (reversed as a matter of law).  With respect to the 396b order, that was reversed because former attorney was not given proper notice of continued hearings in order to properly contest, although the reversal was done on a remand basis for the lower court to properly consider the 396b motion with proper notice to former attorney.  Justice Gooding authored the 3-0 opinion.

Family Law: $50,000 § 271 Sanctions Order Against Wife And Denial Of Her § 271 Sanctions Request Against Husband Both Reversed On Appeal

Section 271 Sanctions Order Against Her Not Tethered To Expenses, And Her Denied Sanctions Request Was Properly Raised Through A Responsive Declaration To A Different Motion Not Seeking Sanctions.

               In Marriage of Kapila and Deshmukh, Case No. A170589 (1^st Dist., Div. 5 June 3, 2025) (unpublished), wife was hit with a $50,000 sanctions award under Family Code section 271, and her request for section 271 sanctions was denied.  On appeal, wife obtained a reversal and remand of both orders.  As to the sanctions order against her, the $50,000 in sanctions was not properly tethered to incurred attorney’s fees and costs for the targeted conduct.  (Menezes v. McDaniel, 44 Cal.App.5^th 349, 352 (2019).)  When it came to the denial of wife’s sanction request, husband conceded that it was incorrectly denied by being raised in a responsive declaration relating to a different motion (In re Marriage of Perow & Uzelac, 31 Cal.App.5^th 984, 992 (2019)), and the appellate panel could not say that husband’s failure to reveal a new job for child support purposes could not form the basis for sanctions—although expressing no opinion on if it did when remanding for a revisit.

Section 998: Defense Was Properly Awarded Full Expert Witness Fees Under A First Rejected § 998 Offer, Amounting To $21,084

First Offer, A “Waiver Of Costs” Offer, Was Valid and Made In Good Faith, Given The Jury Came Back With A Defense Verdict.

               CCP § 998 can be a game changer, depending on when it is made, how it is fashioned, and if it complies with the statutory requirements.  All of that led to an award of expert witness fees under a rejected defense 998 offer in a personal injury case, much to the chagrin of plaintiffs in Carig v. Logan, Case No. G064098 (4^th Dist., Div. 3 June 3m 2025) (unpublished).

               In this case, plaintiffs sued defendant for negligence based on a traffic accident, with defendant serving a “waiver of costs” initial 998 offer which was rejected.  The jury verdict was for the defense.  Defendant filed for routine costs, much of which was for $21,084 in expert witness fees.  The court denied plaintiffs’ motion to tax costs as far as expert witness fees, but did grant some taxing deductions.

               Plaintiffs’ appeal of the costs award was not successful.  The trial judge retains discretion to order payment of expert witness costs incurred from the date of the first offer, even where other 998 offers were made (as in this case).  (Martinez v. Brownco Constr. Co., 56 Cal.4^th 1014, 1026 (2013).)  However, in this area, litigants need to pay attention to presumptions, namely, a successful judgment constitutes prima facie evidence that the offer was reasonable.  (Jones v. Dumrichob, 63 Cal.App.4^th 1258, 1264 (1998).)  Plaintiffs were unable to overcome the presumption of reasonableness from the defense jury verdict, such that the lower court did not abuse its discretion in awarding certain costs.  Beyond that, plaintiffs failed to provide a reporter’s transcript to support that the 998 offer was unreasonable, yet another reason supporting the appellate court’s decision to affirm.

                Acting Presiding Justice Delaney authored the 3-0 opinion.

Homeowner Associations, Prevailing Party: Where Homeowners Prevailed On Two Claims And HOA Prevailed On A Declaratory Relief Claim, Results Were Mixed ….

The Result Was That HOA Was Not Entitled To Prevailing Party Attorney’s Fees.

               “Prevailing party” determinations, frequently, depend on whether a trial judge believes a litigant truly met its litigation objectives.  Generally, if a result is a “mixed” good/bad result, the litigant does not obtain attorney’s fees under a fee-shifting statute.  That conclusion resonated and was buttressed by the end result in Pacific Horizon Holdings, LLC v. Meehan, Case No. B336898 (2d Dist., Div. 4 June 2, 2025) (unpublished).

               In a sober living dispute where HOA was alleged to block access to sober living tenants, HOA sought damages of $50,000, injunctive relief, and declaratory relief against homeowners.  The trial judge did not agree with the CC&R breach and nuisance claims brought by HOA, but she did uphold a declaratory relief claim granting HOA a limited express easement.  HOA moved for attorney’s fees of $204,000 as the prevailing party under the Davis-Stirling Act fee-shifting provision, Civ. Code, § 5975(c).  No fees were awarded by the lower court.

               HOA appealed, but to no avail.  The results were truly “mixed,” because HOA did not meet all of its litigation objectives.   It did not obtain any damages for CC&R breaches or nuisance, only succeeding in obtaining a judicial declaration of its CC&R rights moving forward.  Under these circumstances, the lower court did not abuse its discretion in determining HOA was not a “prevailing party” where results were mixed under the Davis-Stirling fee-shifting statute. 

SLAPP: $11,000 In Defense Fees For Partially Winning SLAPP Motions Affirmed On Appeal

Hearsay Evidence Could Be Credited By Analogy To A Family Law Case—Problematic, But OK Because Unpublished.

               In Berry v. Pope Valley Union Elementary School Dist., Case No, A171352 (1^st Dist., Div. 3 June 2, 2025) (unpublished), defendants won SLAPP motions and were awarded roughly $11,000 at the trial court level.  Those rulings held up on appeal.

               Plaintiff argued that defendants did not prevail, but they did partially prevail by eliminating six of eight claims and getting rid of punitive damages claims.  Plaintiff argued that there should be an adverse inference if the defense did not provide detailed billing substantiation, but this is not a requirement under California law—although it can always be a credibility factor for trial judges to weigh.  Finally, the defense argued that the fee claimant relied on hearsay substantiation, with the appellate court agreeing by relying on a family law case, after a trial, where the reviewing court said trial judge was not bound by technical rules of evidence, citing Frank v. Frank, 213 Cal.App.2d 135, 136 (1963).  On this last point, because there was no trial involved and it was decided on declarations, us bloggers do not see how this should apply as the appellate court saw it—the reasoning is much too broad, because fee claimants need to make a competent showing based on declarations. 

Lodestar, Reasonableness Of Fees: 2/5 DCA Publishes Blockbuster Opinion On Whether Federal Standard Of Heightened Scrutiny Of Fee Awards In Certain Cases Applies To California State Court Cases

In A 2-1 Opinion, Majority Holds The Federal Standards Are Inconsistent With The State Standard Giving The Trial Judge The Power To Adjudge Based On His/Her Experience.

               We were wondering when an appellate court would take on a split in intermediate appellate thinking on whether across-the-board reductions for unreasonable padding, duplicative work, and unnecessary attorney work could be made or faced heightened scrutiny based on reasoning imported from certain federal cases.  One line of cases, Warren, Snoeck, and Kerkeles, found heightened scrutiny of such reductions was necessary, relying primarily on federal civil rights cases.  The other line of thinking was embodied in Morris, declined to allow this importation of federal law.  The day has now arrived because Cash v. County of Los Angeles, Case No. B336980 (2d Dist., Div. 5 May 30, 2025) (published) has tackled this issue, with the majority refusing to import the federal law (author was Presiding Justice Hoffstadt and concurrence by Justice Kim) and with a dissent penned by Justice Baker going the other direction.

               Cash involved a plaintiff winning FEHA and Labor Code whistleblower claims against Los Angeles County through a $450,000 jury verdict.  Plaintiff then requested $735,310 in attorney’s fees inclusive of “fees on fees.”  County opposed, arguing among other things that the award be reduced by at least 30% due to excessive and duplicative billing.  The lower court awarded $455,546 in fees, which included a 30% across-the-board reduction for duplication/excessiveness after making some preliminary reductions. 

               The majority sided with the Morris approach rather than the Warren/Snoeck importation of heightened scrutiny standards, validating the use of across-the-board reductions when judiciously made.  Otherwise, the lower court’s ability to fashion fee awards based on its own experience was put at risk. 

               The dissent saw things differently, although Justice Baker did acknowledge the split in intermediate appellate thinking and suggested the case was a good candidate for state supreme court review.  He also acknowledged that lower courts can make across-the-board reductions when confronted with a voluminous fee motion.  However, the dissent liked the Warren approach in situations where a lower court uses a meat cleaver rather than a slicing knife when faced with a voluminous, detailed fee petition.  Justice Baker included a footnote which limited his analysis to situations where there was detailed billing support, with lesser showings justifying an across-the-board reduction without a heightened explanation.  In the end, the dissent wanted more of an explanation given that the amount of fees is guided by a deferential abuse-of-discretion standard.  Interestingly, Justice Baker reasoned that the majority needed to examine the billing statements to justify the 30% reduction, which he believed the majority did not do to achieve “at least a modicum of proportionality.”

Discovery: Post PricewaterhouseCoopers Supreme Court Decision, 2/3 DCA Decides That $9,981 Sanctions Award Against Third-Party Witness Was Justified

Sanctions Fell Within “Unusual Forms Of Discovery Dispute” Situations Encompassed In PricewaterhouseCoopers Decision.

               In City of Los Angeles v. PricewaterhouseCoopers, LLP, 17 Cal.5^th 46, 72-74 (2024), the California Supreme Court determined that the inherent authority of the court could allow for imposition of discovery sanctions, independent of express Discovery Act provisions, where there were “unusual forms of discovery abuse.”  We can now report that Agnone v. Agnone, Case No. B321252 (2d Dist., Div. 3 May 30, 2025) (partially published) is one of the first post-PricewaterhouseCoopers decisions in construing this language.

               What the Agnone appellate court basically held is that an attorney representing a third-party witness under a deposition subpoena cannot play games by being present with the witness but refusing to turn on his camera at a virtual deposition in order to coach the third-party witness.  This conduct fell “within the cracks,” fully justifying the $9,981 discovery sanctions award against the third-party witness—because it fell within the “unusual forms of discovery abuse” nuance. 

Insurance: Brandt Fees For Insured Had To Be Remanded Because Lower Court Conflated Duty To Defend And Duty To Indemnify Requirements

Those Two Duties Are Very Different. 

               For insurance coverage and bad faith practitioners, Bartel v. Chicago Title Ins. Co., Case No. H052083 (6^th Dist. May 12, 2025 unpublished; May 30, 2025 published), may have salience for you.  There, in a very complicated case, some Brandt fees were awarded for some discrete periods of time.  However, on appeal, a revisit was necessary because the lower court failed to appreciate the difference between a duty to defend versus a duty to indemnity in an insurance context.  In this instance, there were significant issues to demonstrate that the insurer could not rebut the theory some facts supported a pick-up of the defense in the case, given that claims representatives only did limited investigation and only relied on selective complaint allegations of a myopic nature.  However, a remand was necessary to apportion fees for true Brandt fees versus bad faith expenses given the necessity of a revisit on certain issues.