CALIFORNIA ATTORNEY'S FEES

Allocation, Civil Rights: Plaintiff Prevailing on a Bane Act Claim Awarded $829,702.50 In Attorney’s Fees

Although She Was Unsuccessful On Some Claims, The Work Was Interrelated Such That Neither Allocation Nor A Further Reduction Was Required.

               In Gonzalez v. County of Fresno, Case No. F086776 (5^th Dist. Apr. 16, 2025) (unpublished), plaintiff recovered on a Bane Act claim (which has a fee-shifting statute), even though she failed to recover on some theories and two other plaintiffs were unsuccessful on the civil rights claims.  The jury awarded her $500,000 against three defendants.  She then moved for attorney’s fees of a little over $1.659 million inclusive of a 2.0 multiplier.  The lower court awarded her $829,702.50,

               Defendants’ challenges on appeal—that her work in related federal litigation and her partial lack of success required a further reduction—were rejected by the appellate court.  Under the abuse of discretion standard, the federal work was related to the state court work, and plaintiff’s work on unsuccessful claims was related to work on successful ones, with no apportionment being required.  The Fifth District panel also rebuffed the defense suggestion that the lack of success by other plaintiffs should be used for purposes of gauging her success. 

Allocation: Where Trial Judge Asks For Allocation Based On Partial Success Of Different Claims, You Need To Do A Rigorous Apportionment

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 Jan. 31, 2025) (unpublished).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.

Allocation: Prevailing Party On Two Previous Appeals Won More Fees Because The Opposing Parties Did Not Show Why Further Fees Were Unwarranted

Because Complaint And Cross-Complaint Had Common Core Facts/Issues Which Were Inextricably Intertwined, No Apportionment Was Required—Discretionary, Only. Etched stone at the Robert T. Matsui U.S. Courthouse, Sacramento, California.  Carol M. Highsmith, photographer. October 2009. Library of Congress.

                In Direct Action Everywhere San Francisco Bay Area v. Hsiung, Case No. A169536 (1^st Dist., Div. 2 Jan. 16, 2025) (unpublished), the appellate court was dealing with a third appeal in a case where it had affirmed previous fee and costs awards to a prevailing party against two unsuccessful litigants.  The lower court granted a total of $153,976.20 against the losing litigants, broken down based on the appellate fee requests of the prevailing party—the fee request was granted in full.  None of the arguments by the unsuccessful litigants won on appeal.  One litigant raised jurisdictional arguments, but those had been resolved adversely in the prior appeals.  The other litigant argued there needed to be an apportionment of fees, but that was a discretionary call by the lower court (which did not so allocate) after determining that the complaint and cross-complaint involved a common core of facts and had issues which were inextricably intertwined.  (Calvo Fisher & Jacob LLP v. Lujan, 234 Cal.App.4^th 608, 628 (2015).)

Allocation, Employment, Reasonableness Of Fees, Section 998: Costs-Shifting Under CCP § 998 Displaced By More Specific Labor Code Provisions Relating To Costs For Or Against A Prevailing Employee

However, In Unpublished Part Of Decision, Appellate Court Affirmed A Small Fee Award Where Counsel Failed To Follow Lower Court’s Supplemental Briefing/Proof Instructions.

               Chavez v. California Collision, LLC, Case No. A167658 (1^st Dist., Div. 3 Dec. 10, 2024) (partially published; fee discussion unpublished) is part of a continuing trend for appellate courts to honor the Legislature’s directives that prevailing employees usually get costs while it is difficult for prevailing employers to obtain costs unless the employees’ cases are frivolous, notwithstanding employees that fail to beat CCP § 998 offers.  The unpublished portion of the opinion demonstrates the discretion accorded to lower courts in adjudicating fee motions.

               Two plaintiff employees accepted CCP § 998 offers, while a third plaintiff employee did not.  The third employee rejecting a § 998 offer failed to obtain a more favorable judgment at trial.  After extensive law and motion proceedings, the trial judge awarded routine costs against the third plaintiff and in favor of defendant employer (with the plaintiff also receiving some routine costs which were offset against other aspects of the judgment), but he also awarded attorney’s fees to all plaintiffs in a much reduced amount. 

               The 1/3 DCA affirmed all aspects, except the costs awards against the third plaintiff employee—reinstating the total costs award in favor of plaintiff without any offset for the reversed costs award in favor of employer.  (The defense costs award was reversed as a matter of law.)

               The reason for the reversal is that specific Labor Code costs-shifting provisions are pro-employee—costs allowable to a winning employee, but with costs not awardable to the employer unless employee’s case was found frivolous/meritless in nature.  The appellate court determined these specific Labor Code provisions had priority over the more general § 998 costs-shifting mechanism, affirmatively citing and agreeing with Cruz v. Fusion Buffet, Inc., 57 Cal.App.5^th 221, 242 (2020). 

               In the unpublished portion relating to the plaintiffs’ challenge of the fee request, they were focused on upending the lower court’s awarding $200 per hour to their counsel having no employment experience and awarding them only $13,635 out of a total request of approximately $550,000.  The problem for plaintiffs is that their counsel lacked employment experience to justify a higher rate and they failed to comply with the lower court’s order for supplemental proof to allocate out time and justify the request.  Given this disobedience and the trial judge’s finding that the billing submissions had credibility problems, the reduced fee award was affirmed under the deferential abuse of discretion standard.  The moral from this last aspect is to make sure you, as a fee claimant, follow a lower court’s order on supplemental proof or face a draconian result you will not like.

Allocation, Deadlines, Family Law: $72,776.25 Appellate Fee Award To Ex-Husband For Ex-Wife’s Breach Of Fiduciary Duties Affirmed On Appeal, Although Husband Lost Section 271 Sanction Request

Lower Court Impliedly Extended The Fee Filing Deadline, With The Failure To File An Income/Expense Statement Found Nonprejudicial In Nature.

               Bryan v. Bryan, Case No. E080311 (4^th Dist., Div. 2 July 1, 2024) (unpublished) is a case where ex-husband was awarded $72,776.25 in appellate fees (out of a requested $90,000) for winning an appeal involving ex-wife’s claimed breach of fiduciary duty under Family Code section 1101(g), although ex-husband was denied Family Code section 271 sanctions.  Both parties appealed, but all determinations were affirmed.

               The appellate court found that the lower court impliedly allowed ex-husband to exceed the 40-day post-remittitur time deadline to file a fee motion.  It also found that his failure to file a FL-150 income/expense statement was nonprejudicial in nature.  However, ex-husband lost the 271 denial challenge because he failed to allocate fees for this request versus throwing them into “one pot.”

Allocation, Indemnity, Reasonableness Of Fees: Defendant/Cross-Complainant Winning $48,511.50 On Certain Intentional Tort Claims And Defeating A Complaint In An Occupancy License Indemnity Dispute Properly Awarded $225,894 In Contractual Attorney Fees

Opposing Party Did Not Adequately Provide A Litigation History Roadmap, Never Suggested A Reduced Award Amount, And Never Attacked Specific Billing Entries; No Allocation Necessary Because Work Was Inextricably Intertwined.

               Cubework.com, Inc. v. Solo Trading, Case No. B330959 (2d Dist., Div. 1 June 6, 2024) (unpublished) has some nice tips for what opposing parties may need to do as far as attacking a fee request and shows how a fees claimant did the right thing by voluntarily eliminating duplicative entries.

               In this case, plaintiff lost on its claims under an occupancy license agreement having an indemnity clause, but defendant won $48,511.50 in compensatory damages on its cross-complaint under some intentional tort claims where the lower court found willful misconduct by plaintiff/cross-defendant.  Then, winning cross-complainant moved for fees after voluntarily reducing 90 duplicative entries.  The lower court awarded the full ask of $225,894, given the litigation spanned over two years.

               Cubework’s appeal of the fee award was unsuccessful.  The indemnity clause was direct between the two parties, with the trial court finding willful misconduct by Cubework under the intentional tort claims although that type of misconduct was not substantively necessary—but it existed and satisfied the indemnity condition for an award of fees.  There was no need to apportion fees for unsuccessful work as to another party dismissed before trial because it was intertwined with successful work on the intentional tort claims.  Because the fee claimant voluntarily eliminated duplicative entries and the time/hourly rates were reasonable to the lower court, the appellate court could not find the award was shocking, even though the lower court acknowledged it was much more that the compensatory damages award.  The appellate panel also observed that the opposing party failed to provide an adequate litigation history record, did not suggest a reduced award number at oral argument, and did not attack specific billing entries.  These observations provide some valuable tips in moving for and opposing fee requests in state court (although the same tips likely are apt in federal court).

Allocation, Costs, Trade Secrets: Plaintiff Obtaining Permanent Injunction Was Entitled To Contractual Attorney’s Fees, But Fee Determination By Lower Court Remanded To Reconsider 75% Reduction In Request And Denial Of Discovery Work

4/3 DCA Also Determined Contractual Expenses Must Be Pled And Proven As Damages, As Well As Reversed A Nonsuit On Whether The Trade Misappropriation Was Willful and Malicious.

               In Applied Medical Distrib. Corp. v. Jarrells, Case No. G062056 (4^th Dist., Div. 3 Mar. 8, 2024) (published), plaintiff former employer Applied sued former employee Jarrells and his new employer for trade secret misappropriation, contractual breach of using proprietary information under a contract with a fees, costs, and expenses clause, and breach of fiduciary duty.  The jury found Jarrells had misappropriated trade secrets, but he suffered no damages and or unjust enrichment.  Later, the trial court granted Applied’s request for a permanent injunction (after earlier granting a stipulated-to preliminary injunction) and partially awarded it requested fees, costs, and expenses (with the fee request being about $3.9 million).

               On appeal by Applied, the 4/3 DCA—in an opinion by Justice Gooding, the appellate court’s most recent appointed member—affirmed in part and reversed in part. 

               The lower court did not err in crediting Applied’s assertion that it had excluded all noncompensable time on certain work.  It also did not err in concluding that Applied was only entitled to compensation for work in obtaining injunctive relief based on the breadth of the contractual fees, costs, and expenses clause.

               However, the appellate court found that the lower court made two improper reductions.  First, the lower court erred in only awarding 25% of the fee request based on Applied recovering on one out of four causes of action because that reduction failed to appreciate intertwined work potentially worthy of compensation on the other counts.  Second, the lower court improperly denied for discovery work relating to obtaining the permanent injunction because that was a merits determination for which compensation was recoverable.

               The reviewing panel concluded that the lower court properly awarded litigation expenses under the fees, costs, and expenses contractual clause because the expenses needed to be plead and proven as damages at trial, bringing the 4/3 DCA in alignment with the majority of intermediate appellate courts which have confronted this issue.  (In doing so, it distinguished Thrifty Payless which came to a different result under much different circumstances.)

               Finally, the 4/3 DCA determined that the lower court erred in granting nonsuit on whether the trade misappropriation was willful and malicious.  This meant that a jury trial was necessary to revisit the issue; and, if it decides that the misappropriation was elevated in nature, the lower court would then have to determine fees to which Applied would be entitled under Civil Code section 3426.4 (CUTSA’s statutory fee authorization).

Allocation, Fee Clause Interpretation, Section 1717: Intervening Insurer Not Responsible For Fees To Prevailing Party, While Litigant Losing Alter Ego Arguments Was Responsible For Fees

Lower Court Also Did Not Err By Awarding Insurer Rate Fees To A Prevailing Party, Apportioning Out Noncompensable Fees.

               Yee v. Weinberg, Case No. A163850 et al. (1^st Dist., Div. 4 Mar. 5, 2024) (unpublished) is a situation where a plaintiff landlord prevailed against defendant tenant, with landlord receiving some fees (but none against the intervening insurer eventually withdrawing from the case), but with landlord having to pay fees to defendants not proven to be alter egos.  Some of the winning defendants were awarded fees, but at lower rates charged by the insurance carrier and with some apportionment done by the lower court.

               All of the fee determinations were affirmed on appeal.  The insurer was not responsible for fees because (1) there was no contract or statute allowing fee entitlement to landlord, and (2) insurer’s dismissal of its intervention complaint was a contractual dismissal which invoked the Santisas fee bar.  The fee award to the alter ego defendants was no fluke because plaintiff failed to prove they were alter egos, which invoked Reynolds Metals as the fee entitlement basis.  Defendants complaining about the lower court’s reduction in fee requests, through cross-appeals, showed no abuse of discretion in allowing compensation only at the rates charged by the insurance carrier’s counsel and apportioning out fees which were not compensable.

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.

Allocation: Where Successful Claim Work Was Related To Unsuccessful Claim Work, Trial Court Did Not Abuse Its Discretion In Failing To Apportion Work On Unsuccessful Claim

Approximate $600,000 Fee Award Affirmed On Appeal.

            In O’Hara v. Liberty Rural County Fire Protection Dist., Case Nos. C096135 et al. (3d Dist. Dec. 19, 2023) (unpublished), plaintiff obtained a $3 million jury damages verdict based on Firefighters Procedural Bill of Rights (FPBOR) and federal civil rights (42 U.S.C. § 1988) claims, although he lost a defamation claim.  The lower court also added gross-up damages and civil penalties of an additional $1,325,000.  Then, when fee entitlement was not contested, the lower court granted a little shy of $600,000 in attorney’s fees.

            Defendant District appealed, arguing that defamation unsuccessful work should have been apportioned out for purposes of crafting a fee award.  The appellate court disagreed, because the lower court indicated that all claims were related such that it was impossible to do an apportionment, a determination sustained on appeal.  There is a good discussion in this opinion about limited success and apportionment principles operative in fee motions.

Allocation, Requests For Admission, Special Fee Shifting Provision: 4/1 DCA Affirms Denial Of Fees To Prevailing Defendant Under Consumer Data Access And Fraud Act, But Remands For Determination Of RFA Costs-Of-Proof Sanctions For Request Denials

Failure To Allocate Fatal On The CDAFA Claim, But Lack Of Any Evidence During A Jury Trial Meant Some Costs-of-Proof Sanctions Were in Order on Remand.

            In Yeng Midas Touch, Inc. v. Phanichkul, Case No. D080981 (4^th Dist., Div. 1 Nov. 29, 2023) (unpublished), plaintiff lost various tort and a claim under the Computer Data Access and Fraud Act, CDAFA (the latter having a prevailing party statutory provision), after plaintiff basically denied or objected to 68 RFAs, many of which involved specifying computer/internet accounts for which no evidence was introduced during a jury trial.  After plaintiff’s loss, the lower court denied the defense motions for attorney’s fees under the CDAFA and costs-of-proof sanctions for denial of the RFAs.  Plaintiff appealed, losing on the CDAFA issue but obtaining a remand on the RFA issue.

            CDAFA Fee Denial.  Although the appellate court did not affirm on this ground, the lower court denied fees on the grounds that prevailing defendants are not entitled to fees under Penal Code section 502(e)(2), citing Physician’s Surrogacy, Inc. v. German, 311 F. Supp.3d 1190, 1195 (S.D. Cal. 2018), so everyone keep this case in mind.  However, the fee denial was affirmed because defendant failed to allocate fees between CDAFA work and non-CDAFA work.

            Costs-of-Proof Sanctions Issue.  This issue resulted in a reversal and remand.  Many of the RFAs sought admissions relating to specified accounts which plaintiff could not prove at trial.  The appellate court did not believe the defense had a reasonable basis to deny the RFAs given they failed to produce any evidence at trial to back up the denials, with the RFAS having substantial importance in the case.  So, a remand was warranted for purposes of awarding some sanctions to plaintiff.

Allocation: Major Portion Of $950,000 Attorney’s Fees Award Affirmed In Interrelated Trade Secret/Contractual Matter

However, Some Portion of The Fee Recovery On An Unsuccessful, Non-Compensable Fraud Cross-Claim Had To Be Revisited Because Billings Showed Those Expenses Could Be Assessed.

            Elations Systems v. Fenn Bridge, LLC, Case No. A165762 (1^st Dist., Div. 3 Sept. 15, 2023) (unpublished) is an allocation/apportionment opinion which we commend litigators and others to read.

            Summarized quickly, plaintiff sued on trade secret and contractual claims (breach of a settlement agreement and an NDA agreement), obtaining a jury verdict which was reversed by the trial judge through post-trial motions.  The lower court initially awarded defendants $700,000 in contractual attorney’s fees.  However, in a prior appeal, the appellate court reversed and directed a remand to determine whether fees needed to be apportioned between compensable/non-compensable claims, mainly, trade secret/settlement agreement breach claims, NDA breach claims, and a fraud cross-claim.  On remand, the lower court determined that $700,000 was entitled to the defense as well as an additional $150,000 in appellate/post-judgment fees.

            Most of the fee recovery was affirmed on appeal.  Most of the $700,000 fee award was justified because the claims were interrelated, but with one exception.  On the fraud cross-claim which was unsuccessful, an apportionment was warranted because billings showed that the work on that cross-claim could be segregated.  The additional $150,000 fee work was upheld.

            So, the moral of this one is to ask for apportionment and not give up on appeal on this allocation issue—you may get some relief!  Fee challenges should focus on a request for apportionment, where appropriate.

Allocation: In CFRA/Other Claims Case, Plaintiff’s Winning Only 2 Of 7 Claims On Appeal Required A Remand To Recalculate Fee Recovery

Apportionment Principles Are To Be Considered On Remand.

            In Buckman v. City of Los Angeles, Case No. B305192 (2d Dist., Div. 2 Aug. 2, 2023) (unpublished), plaintiff obtained a compensatory verdict of $288,306.23 on 4 out of 7 claims, including a California Family Rights Act (CFRA) claim giving rise to fee entitlement.  Plaintiff requested fees of $1,065,358.75 plus a 2.0 positive multiplier for a total fee award of about $2.121 million under the CRFA fee shifting allowed under FEHA and the private attorney general statute.  The trial judge awarded $958,808.75 under FEHA, reducing some claimed hours and awarding no multiplier.  On an appeal by City and cross-appeal by Plaintiff, the appellate court reversed two more claims, such that Plaintiff only prevailed on 2 of 7 claims.  Given this scenario, the appellate court ordered a reconsideration of the entire fee award on remand, but it did indicate that the lower court should follow apportionment principles, expressly citing Reynolds Metals (our Leading Case No. 5), Thompson, Graciano, and Wysinger (with Wysinger discussing the intertwined exception to apportionment). 

Allocation, Probate: $441,295.63 Fee Award Under Probate Code Section 859, Which Incorporates Mandatory Elder Abuse Fee Shifting, Affirmed Against Removed Trustee On Appeal

No Apportionment Required Because Elder Abuse and Fiduciary Duty Breach Claims Were Intertwined.

            In Keading v. Keading, Case No. A153628 (1^st Dist., Div. 3 Apr. 28, 2023) (unpublished), a beneficiary successfully obtained an elder abuse finding and successfully removed a trustee under Probate Code section 850, which allows a probate judge under related Probate Code section 859 to award reasonable attorney’s fees to the prevailing party (mandatory under the elder abuse fee shifting statute but discretionary on other claims).  The prevailing beneficiary moved for $598,158.93 in fees under the elder abuse statute, arguing no apportionment was necessary because elder abuse and fiduciary breach claims were intertwined, and asking for a 1.75 multiplier.  The lower court, after making downward adjustments for duplication (two attorneys at trial) and excessive hourly rates, awarded $441,295.63 in fees under the elder abuse fee shifting statute, inclusive of a 1.25 multiplier.

            Removed trustee was miffed, appealing the fee order.  The order was affirmed on appeal.

            No apportionment was necessary because there was a common nucleus of facts between the elder abuse and fiduciary breach claims.  Appellant argued that an evidentiary hearing on the fee request should have been held, but the appellate court agreed that the facial request was reasonable, everyone got to support their respective positions on the fee request, and the probate judge did reduce the fee request.  Fee award affirmed.

Allocation, Trade Secrets: $299,647.50 Fee Award Against Plaintiff For Bringing A Frivolous Trade Secret Misappropriate Case Affirmed On Appeal

Lower Court Did Reduce The Fee Request About $121,000 In Fashioning Its Award.

            We have a category “Trade Secrets” describing some fairly hefty fee “sanctions” awards under Civil Code section 3426.4, part of the California’s Uniform Trade Secrets Act.  To this list can be added the award in SASCO v. CSI Electrical Contractors, Inc., Case No. B322686 (2d Dist., Div. 4 Dec. 19, 2022) (unpublished).

            There, a lower court awarded the defense $299,647.50 in attorney’s fees under section 3426.4 after plaintiff lost a trade secrets misappropriation case which the trial judge found to be frivolous, although the fee request was reduced by about $121,000.  On appeal, plaintiff did not contest that the action was objectively specious, but it argued that there was no required subjective bad faith.  The appellate court disagreed based on plaintiff losing other cases against former employees and refusing to comply with discovery orders.  No allocation was required between trade secrets and other claims, because they were inter-related. 

Allocation: 4/3 DCA Affirms Trial Court’s Apportionment Of Plaintiffs’ Fee Award Between Both Contractor And Subcontractor Where Subcontractor’s Contract With Plaintiffs Did Not Provide For Fee Recovery

Statutory Basis Supported Plaintiff’s Recovery of Attorney Fees Directly From Subcontractor.

            In Nassif v. Mission Pools of Escondido, Case No. G060433 (4^th Dist., Div. 3 December 5, 2022) (unpublished), swimming pool contractor and subcontractor were sued for substandard work relating to the design and construction of a swimming pool.  Pursuant to the global settlement agreement entered into with plaintiffs, contractor and subcontractor agreed to an apportionment amongst themselves of the settlement payment to plaintiffs.  However, when the trial court apportioned plaintiffs’ attorney’s fees and costs award against contractor and subcontractor, based on its determination regarding contractor’s indemnity cross-claims against subcontractor, and applying the same apportionment the parties used in the settlement agreement, subcontractor appealed.

            In a 3-0 opinion, authored by Orange County Superior Court Judge Linda S. Marks, sitting by assignment, the 4/3 DCA affirmed.  

            The panel first addressed subcontractor’s arguments that the settlement agreement did not authorize the trial court to apportion fees, and that the trial court’s order deprived it of its rights to a trial and due process as they relate to contractor’s indemnity claims.  Pursuant to the terms of the settlement agreement, the parties had waived their right to a trial on the indemnity issues, and had agreed instead to allow the trial court to determine the indemnity issues in its determination of plaintiffs’ fee motion.  Further, the 4/3 DCA found subcontractor did not suffer a violation of its due process rights as the trial court had made a determination as to the indemnity claims which resulted in the apportionment of the fee award. 

            Finally, although subcontractor’s contract with plaintiffs did not provide for the recovery of fees, and the trial court had erroneously concluded that the equitable indemnity claim provided a sufficient legal basis for apportioning the fees, the trial court’s apportionment order was statutorily supported.  Business and Professions Code § 7168 provides for the recovery of reasonable attorney’s fees by the prevailing party in any action arising out of a contract for swimming pool construction between a swimming pool contractor and a person contracting for the construction – with sections 7026 and 7150.1 providing that a “subcontractor” is included in the definition of a “home improvement contractor, including a swimming pool contractor.”

Allocation, Section 1717: $125,000 Fee Award To A Defendant Winning At The Pleading Stage Affirmed On Appeal

This Decision Has A Nice Discussion Of The Policies Underlying Civil Code Section 1717.

            There is a nice discussion of the policies underlying Civil Code section 1717 and the claims which trigger fee exposure under this statute in Engage BDR, LLC v. Amobee, Inc., Case No. B309263 (2d Dist., Div. 8 July 7, 2022) (unpublished).

            There, a Master Agreement formed the backdrop for plaintiff’s contract, usury, and declaratory relief claims, with that Agreement containing a fees clause which had no recitation that each party to the contract was represented by counsel.  The trial judge sustained demurrers and entered judgment in favor of defendant, later awarding about $125,000 in attorney’s fees and declining to apportion the fees.

            The 2/8 DCA, in an opinion authored by Justice Wiley, affirmed. 

            Initially, the panel explored how Civil Code section 1717 expands a contractual attorney’s fees clause: (1) the first way is reciprocity, with a unilateral fees clause deemed to apply to both parties; and (2) the second way is “broadened scope,” which means a narrow fees clause applies to the entire contract unless the contract specifies that counsel represented the parties; and, if not, section 1717 broadens the fees provision absent the recitation.

            It then examined whether plaintiff’s claims were “on the contract,” determining that the contract breach claims obviously were, the usury/restitution claims were (Del Mar v. Caspe, 222 Cal.App.3d 1316, 1335 (1990)), the economic duress claim relating to entry into the contract were, and the declaratory relief claims related to the contracts (City and County of San Francisco v. Union Pacific Railroad Co., 50 Cal.App.4^th 987, 999-1000 (1996)). 

            The fees clause was broadened because there was no specific recitation that the parties were represented by counsel.  Although there were some other more amorphous references, section 1717 requires that parties of roughly equal power need to make this recitation to demonstrate legal sophistication so that the fees clause is narrowed in scope.  The “broadened scope” rationale applied.

            No apportionment was required because all of plaintiff’s claims involved shared common issues.  Also, because plaintiff did not specifically identify what attorney billings were duplicative until a supplemental brief which was filed too late and not entertained, plaintiff waived its challenges to the reasonableness of the fees requested by defendant.

            BLOG OBSERVATION—Although appellate jurists are good writers, we will note that Justice Wiley has a distinctive writing style.  We would put him in company, on that front, with his contemporaries such as Justices Manella, Ashmann-Gerst, Perluss, Gilbert, Yegan, and Bedsworth.

Allocation, Appealability, Partition: $790,967 Postjudgment Fees And Environmental Remediation Award Against Some Partitioning Parties Affirmed On Appeal

Lower Court Retains Lots Of Discretion To Apportion Fees in Partition Action.

            DeMartini v. DeMartini, Case No. A160849 (1^st Dist., Div. 1 June 7, 2022) (unpublished) is a reminder that the partition statutes allow a trial judge broad authority to award and apportion fees to parties in a partition action.  In this one, the lower court did award fees and environmental remediation costs totaling $790,967 against some parties in a partition action.  That stood up on appeal.  As to the threshold appealability issue, merits partition adjudications and post-award fee recovery orders are appealable.   On the merits, the trial judge has great discretion to apportion fees under CCP §§ 874.040 and 874.110(a), such that the fee recovery award was no abuse of discretion.

Allocation, Fee Clause Interpretation: Plaintiff Owner Losing A Variety Of Intertwined Claims Arising From A Home Improvement Contract Was Properly Assessed With Contractual Party Fees As Against The Home Improvement Installer

Installer Was Awarded $1,223 In Costs And $95,531.68 In Attorney’s Fees.

            Plaintiff owner sued a home installer on various contractual, tort, and statutory theories for a job of under $4,000, with there being a home improvement contract with a fees clause covering performance issues under the contract.  Owner lost across the board, with the lower court awarding installer $1,223 in costs and $95,531.68 in attorney’s fees.  The 2/6 DCA affirmed in Plyley v. Renovating Specialist, Inc., Case No. B309457 (2d Dist., Div. 6 May 31, 2022) (unpublished).  The contractual fees clause was broad enough to encompass contractual and interrelated tort/statutory claims, such that no apportionment was required.  The appellate panel also indicated that installer was entitled to appellate fees and costs as the victor, remanding to the trial court with directions to do so upon a properly filed motion. 

Allocation, Landlord/Tenant, Retainer Agreements: $910,752.50 Fee Award Under San Francisco Rent Ordinance Fee-Shifting Clause Affirmed On Appeal

Trial Judge Did Reduce Requested Lodestar By More Than $70,000—About 60% Of The Request, Although Refusing To Award A Positive 1.5 Multiplier.

            Landlords in Duncan v. Kihagi, Case No. A154678 (1^st Dist., Div. 1 Oct. 6, 2021) (unpublished), were not pleased when a trial judge awarded $910,752.50 in fees in favor of the winning tenants where there was a fee-shifting provision in a San Francisco Rent Ordinance (a common feature of many municipal rent ordinances), although reducing the lodestar request by over $70,000 and declining to award a 1.5 positive multiplier.  The appellate court affirmed.  The fee claimants did not have to apportion a lot of the work because it was interrelated to the success under the Rent Ordinance, even though some claims were abandoned in order to streamline the trial.  Streamlining was not deserving of punishment.  Isolated challenges to some billing entries did not change things, given the lodestar reduction by the lower court.  The hourly rates for a 20+ year attorney ($425) and for a more senior founding partner ($525) were not excessive for Bay Area practitioners in such a case.  The contingency retainer agreement did not have to be introduced into evidence because the contractual terms do not compel any particular fee award.  (Vella v. Hudgins, 151 Cal.App.3d 515, 520-521 (1984).)  Finally, the financial impact of the fee award on landlords was not a mandatory factor to consider.  (Garcia v. Santana, 174 Cal.App.4^th 464, 467 (2009).) 

Allocation: Where Prevailing Litigant Failed To Apportion Compensable And Non-Compensable Fees Where Governing Documents Required A Causal Connection To The Contracts, The Lower Court Did Not Abuse Its Discretion In Denying Fees Altogether

Practice Tip—Think About Apportioning To Avoid The Result Here!

            Stifano v. Slaga, Case No. D077865 (4^th Dist., Div. 1 Aug. 17, 2021) (unpublished) is an example of a case which we do not see often:  a trial judge denying attorney’s fees altogether when a party did not apportion them between compensable and non-compensable claims.

            The start to this case was great and should guide all litigants: “This case underscores the old maxim that it is best not to mix friendship and business.”  What happened here is that two partners opened an Ocean Beach bar and music venue, with one of the partners “fronting” a loan to the other when he could raise his contribution under penalty that the loaning partner obtained the entire business.  Litigation ensued, and the loaning partner substantively prevailed, a result affirmed on appeal.  Here, however, is the rub in this matter:  loaning partner moved for attorney’s fees, but he failed to apportion compensable fees owed by the defaulting partners from non-compensable fees expended in litigating against a third party.  After loaning partner had to admit in fee proceedings that allocation was a legitimate adjustment exercise, the trial judge denied in entirety the fee request.

            That conclusion was affirmed on appeal.  Appellant argued that the contract documents were broad enough to allow for the extraneous fees, but a closer examination showed they had to have a causal connection with the contract dispute between the partners rather than outside parties.  Fee denial affirmed where the other side did no apportionment of fees.

Allocation, Indemnity, Section 1717, Seriously: 4/1 DCA Affirms $6,000 Damages Award And $143,183.55 Out Of Requested $572,730.11 § 1717 Fees To Prevailing Breach Of Contract Plaintiff Who Proved $1,463,745 In Damages At Trial

Plaintiff’s Failure To Conduct Due Diligence Prior To Entering Into Commercial Lease And Failure To Mitigate Damages Once Problems Arose Left Him Upside-Down By More Than A Million Dollars When All Was Said And Done

            Sherwood v. Vogele, Case No. D076776 (4^th Dist., Div. 1 May 7, 2021) (unpublished) highlights the importance of conducting due diligence before entering into a commercial property lease (or purchase), and of working to mitigate damages when problems arise.

            Plaintiff leased a commercial building for the purpose of building and operating a coffee house with an added rooftop deck – accepting the zero lot line property “as is,” and signing a lease with a hold harmless clause indemnifying landlords in the event he caused a claim to be filed against them.  Afterward, plaintiff became aware that a neighboring property had roof eaves that overhung onto his leased property and hindered his ability to build his project.  When neighboring property owner failed to begin removing those eaves on the date specified in a written agreement with plaintiff, plaintiff instructed landlords to cut off communications with neighbor – claiming he did not believe neighbor intended to remove the eaves, that he would have to proceed as if the eaves would not be removed, and that he intended to sue neighbor for a million dollars because he would have to spend considerable more on a build-out to accommodate the encroaching eaves.  Plaintiff then received landlords’ permission for a complete tear down, rather than a remodel, of their building based on their belief plaintiff’s construction of a new building included a “workaround” to the problem.  This was not the case, however, with plaintiff obtaining permits, and going forward with the demolition, based on plans that did not take the encroaching eaves into account. 

            After filing his lawsuit against neighbor, plaintiff terminated his lease and left landlords with a vacant lot.  Neighbor cross-claimed against plaintiff and landlords for damage to his property caused by the demolition, landlords cross-claimed against plaintiff for breach of lease and indemnity, and plaintiff cross-claimed against landlords alleging fraud and breach of the covenant of quiet enjoyment.  The jury found neighbor breached its binding contract with plaintiff, negligently trespassed and maintained a private nuisance – causing plaintiff $1,463,745 in past and future economic damages.  However, judgment was entered with plaintiff being awarded only $6,000 in damages against neighbor as the jury found plaintiff could have mitigated all but $30,000 of his damages, and that plaintiff was 75% responsible for his losses, while neighbor was only 20% responsible.  Additionally, neighbor was awarded $50,000 in property damage, plus $29,027.50 in costs, against plaintiff, while landlords were awarded $620,492 in damages against plaintiff.  Finally, in a postjudgment order, plaintiff received an award of $143,183.55 in § 1717 attorney fees – only 25% of the $572,730.11 he sought based on the trial court’s allocation for plaintiff’s breach of contract cause of action.  Plaintiff appealed.

            The 4/1 DCA affirmed – finding substantial evidence concerning plaintiff’s failure to mitigate damages supported the judgment.  “One has an obligation to avoid an unwarranted enhancement of damages ‘through passive indifference or stubborn insistence upon a conceived legal right . . . .’ ” (Valle de Oro Bank v. Gamboa, 26 Cal.App.4^th 1686, 1691 (1994).)  As to the fees, the panel found no abuse of discretion in the trial court’s 75% reduction given allocation among plaintiff’s contract and tort claims was proper, and plaintiff did not assert that his claims were so intertwined to make allocation impracticable.   

Allocation, Multipliers, Section 1717, Substantiation Of Reasonableness Of Fees: Reversal And Remand Were In Order Where Trial Court Believed It Did Not Have Authority To Apply A Negative Multiplier In An Award Of Attorney Fees

Invoices Submitted In Support Of Plaintiff’s § 1717 Fees Motion Were Extensively Redacted And Contained Vague Block-Billing, Which Offered The Trial Court No Way To Meaningfully Apportion Time Between Causes Of Action.

            After defeating defendant’s cross-claim breach of contract cause of action, plaintiff moved for Civ. Code § 1717 attorney fees of $939,600.50, which represented all of plaintiff’s incurred fees from the time defendant amended their cross-complaint to add the breach of contract cause of action.  In opposition, defendant argued that a negative multiplier should be applied based on the extensive redactions and block-billing of the invoices submitted by plaintiff in support of its fee motion, which offered the trial court no way to meaningfully apportion time between causes of action.  Defendant argued that no more than $47,980.20 should be awarded to plaintiff.  The trial court rejected defendant’s negative multiplier argument and awarded plaintiff $369,811.50 after reductions to one attorney’s hours, hourly rate reductions, and further reductions for apportionment and excessiveness.

            Defendant appealed, and the 2/1 DCA reversed in Southern Cal. School of Theology v. Claremont Graduate University, Case No. B302452 (2d Dist., Div. 1 May 3, 2021) (unpublished). 

            The trial court appeared to have rejected defendant’s proposed negative multiplier based on its belief it had no authority to apply defendant’s requested negative multiplier.  However, a trial court has considerable discretion in determining fee awards, including its authority to ““assig[n] a reasonable percentage to [time] entries, or simply cast them aside.” (Bell v. Vista Unified Sch. Dist., 82 Cal.App.4th 672, 689 (2000).)  The court may reduce compensation on account of any failure to maintain appropriate time records as the party moving for fees bears the burden of establishing entitlement and documenting the appropriate hourly rate and hours expended. (ComputerXpress, Inc. v. Jackson, 93 Cal.App.4th 993, 1020 (2001).)

            On remand, the panel instructed the trial court to reconsider its order based on its full authority to fashion a fees award under § 1717 – reminding the trial court it has the authority to apply a negative multiplier as a basis to apportion fees.

Allocation, Deadlines: $172,000 In Trial/Appellate Fees To One Prevailing Defendant And $36,890 In Appellate Fees To Other Prevailing Defendants Affirmed On Appeal

Parties Orally Stipulated To A Postponement Of Appellate Fee Deadlines And Work Was Inextricably Intertwined.

            In Ebrahimpour v. Pasco, Case No. B303983 (2d Dist., Div. 2 Apr. 7, 2021) (unpublished), plaintiffs lost a corporate opportunity dispute where there was a memorandum of agreement with a contractual fees clause against multiple defendants.  On remand after a prior appeal, plaintiffs were hit with a $172,000 trial/appellate fees award against one defendant and another $36,890 appellate fees award against other defendants.  Plaintiffs’ appeal of the fee awards did not alter anything.  As far as timeliness in bringing appellate fee motions, the trial court’s conclusion that there was an oral agreement to extend the time deadline was affirmed on appeal.  (Obviously, it would be good to confirm these arrangements in writing, unfortunately, given modern litigation tendencies; however, the lower court did credit a declaration by one side as to what was stipulated to.)  There was no need to apportion time between the various defendants because it was impossible to do so given the overlap in facts and legal theories. 

Allocation, Employment, Reasonableness Of Fees: Employee’s Limited Success On Some Compensable Wage/Hour Claims Led To Affirmance Of $17,234 Fee Award

Employee Had Requested Fees Of $168,749.47 After Garnering Compensatory Award Of $6,958.36.

            This case is another example of how non-compensable claim allocation and limited success can lead to a substantial reduction of a fee request even where there is some fee entitlement basis.

            In Caballero v. Bill Muncey Industries, Inc., Case No. D076628 (4^th Dist., Div. 1 Mar. 17, 2021) (unpublished), an employee cook at Galley at the Marina restaurant sued an individual and company who he believed were employers under wage/hour laws (including meal and rest break statutes) as well as the Unfair Competition Law.  It looks like employee sued on behalf of a class, but certification was denied, and no recovery was had on the UCL claim.  Eventually, the individual was not found liable, but the company was found to have violated unpaid overtime and wage statement violations to the tune of $6,958.36.  Employee moved to recover $168,749.47 in fees (the full value of services—with some entitlement existing, but not for losing meal/rest break claims which are not compensable under wage/hour laws), but the lower court only awarded $17,234, apportioning out non-compensable fees on some claims and also reducing for employee’s limited success in the litigation overall.

            That determination was affirmed by the 4/1 DCA.  After all, employee only prevailed against one defendant and only prevailed on two minor wage/hour claims, with the records showing that an apportionment was possible but one which was eschewed by employee’s counsel wanting the whole thing (not a good strategy, based on many, many prior blog posts).  The problem for employee is that non-compensable claims which are apportionable and limited success are prime candidates for reduction of a large fee request where there are modest returns.  That was the “end result” conclusion by the trial court, with the Court of Appeal finding no abuse of discretion in what was decided in the superior court fee proceedings. 

Allocation, Employment, Mulitpliers, Private Attorney General: 1/1 DCA Reverses $2,905,200 In PAGA Penalties Against Defendant, But Affirms $7,793,030 In Attorney Fees Inclusive Of A 2.0 Multiplier

The Fees Award Was Supported By PAGA, Section 1021.5, And The Catalyst Theory, And Apportionment Of Fees Among The Retaliation And PAGA Claims Was Neither Necessary Nor Possible, While Complexity Of Issues And Skill Of Attorneys Supported Multiplier In This Intensely Litigated Case.

            In Sargeant v. Board of Trustees of The California State University, Case Nos. A153072/A154926 (1^st Dist., Div. 1 March 5, 2021) (published) (fees discussion unpublished), a health-and-safety technician employed at Sonoma State University sued Cal State University and his supervisor alleging five retaliation causes of action for the way he was treated after raising environmental concerns related to lead paint and asbestos.  Specifically, plaintiff's causes of action fell under the Whistleblower Protection Act (Lab. Code §§ 1102.5, 6310, 6399.7, 232.5), the California Fair Employment and Housing Act (FEHA, Gov. Code, § 12900 et seq.), and one cause of action for civil penalties under the Labor Code Private Attorneys General Act of 2004 (Labor Code, § 2698 et seq.,) (“PAGA”) premised on allegations that CSU had violated various provisions of Cal-OSHA.

            The jury returned special verdicts against defendants – finding in plaintiff’s favor on three retaliation claims and on the PAGA claim, and awarding plaintiff $271,895 in past and future economic damages, plus $116,000 in noneconomic damages.  Because plaintiff elected the equitable remedy of reinstatement in lieu of the past and future economic damages, only the noneconomic damages were included in the judgment.  Additionally, the trial court ordered CSU to pay civil penalties of $2,905,200 for its various violations.

            Plaintiff then moved for more than $11.5 million in fees which included a 3.0 multiplier for three of the five attorneys representing him.  The trial court awarded $7,793,030 in fees – finding that three legal bases supported the award: (1) PAGA itself, which authorizes a fee award to a prevailing employee (§ 2699, subd. (g)(1)), (2) Code of Civil Procedure section 1021.5, which authorizes a fees award when an action results in the enforcement of an important right affecting the public interest; and (3) the “catalyst doctrine.”  Additionally, the trial court found that it was neither necessary nor possible to apportion the fees among the retaliation and PAGA causes of action.  Finally, the trial court concluded that a multiplier was appropriate given the complexity of the case, the skill of plaintiff’s attorneys, the extent to which the litigation precluded other employment, the contingent nature of the fee award, and the fact an award against the state would ultimately fall on the taxpayers, but reduced plaintiff’s requested 3.0 multiplier to 2.0.

            Defendants raised a number of challenges on appeal, but in the published portion of its decision, the appellate panel affirmed – with exception to the PAGA penalties.  The panel reversed the entire $2,905,200 in PAGA penalties – finding that although plaintiff brought viable PAGA claims, some of the PAGA claims did not themselves provide for penalties, and plaintiff did not suffer personally on those claims premised on the Cal-OSHA violations.

            In the unpublished portion of its opinion, the 1/1 DCA affirmed the attorney fees award – agreeing with the trial court’s conclusions and reasoning, and finding no abuse of discretion.

Allocation, Civil Rights, Costs, Employment: Former Employer Properly Was Denied Attorney’s Fees Where FEHA Case Had Some Substance

However, 2/3 DCA Follows Roman Opinion On When To Award Costs On Non-FEHA Claims.

            In Chevreaux v. Long Beach Memorial Medical Center, Case Nos. B291268/B292937 (2d Dist., Div. 3 Feb. 24, 2021) (unpublished), a jury returned a defense verdict in favor of a former employer on a non-FEHA, Tameny retaliation claim after she dismissed two FEHA claims (age discrimination and a CFCA violation) on the eve of trial.   The lower court subsequently denied attorney’s fees to defendant after finding the dismissed FEHA claims were not baseless.  The trial judge also granted plaintiff’s motion to tax costs finding he could not award any costs to the defense because it did not apportion the costs expended to defend non-FEHA claims from those attributable to its defense of her FEHA claims, as required by the 2/7 DCA’s decision in Roman v. BRE Properties, Inc., 237 Cal.App.4^th 1040, 1059 (2015). 

            The 2/3 DCA mainly affirmed, but it reversed and remanded to see if the defense might be awarded some routine costs for jury fees, court reporter fees, and trial exhibits.  It agreed that there was enough evidence to show an inference of age discrimination because plaintiff, aged 62, was replaced with women who were 50 and 44 even though the claims were dismissed before trial.  This Division also agreed with the reasoning in Roman, which allows a lower court discretion to see if non-FEHA claims did not overlap so as to be able to apportion out costs not related to the nonfrivolous FEHA claims.  Because the jury only considered one non-FEHA claim, it was fair game for the trial judge make factual determinations as far as awarding jury fees, court reporter fees, and trial exhibit costs in favor of the defense (considering whether the costs were reasonable, necessary, and whether there was an agreement to split court reporter fees). 

Allocation, Construction, Section 1717: Contractor Defeating Worker’s Compensation Insurance Claims Not Entitled To Contractual Fees, Which Needed To Be Apportioned On Remand

No Contractual Fee Provisions Covered The Worker’s Compensation Issues.

            Although apportionment is sometimes a discretionary exercise, it can be mandatory where there are non-fee entitlement issues which are likely disparate in nature. 

            Fernandez v. Escutia, Case Nos. H046529/H047015 (6^th Dist. Feb. 24, 2021) (unpublished) is a situation where a contractor won a construction dispute against homeowners, including a claim that he failed to maintain worker’s compensation insurance.  The trial judge subsequently awarded contractor $103,717.50 out of a requested $157,659.66 in Civil Code section 1717 based on a contractual fees clause.

            The Sixth District reversed and remanded.  The problem was that the win on the worker’s compensation insurance issue did not arise out of the construction contract, given no provision indicating it was a necessity (beware, because such a provision is common in many construction contracts).  That being the case, and given the absence of an indication that the other contract issues overlapped with the worker’s compensation claim, a remand was necessary to apportion fees, if needed, unless there was a common overlap with other issues.

Allocation, Private Attorney General: Doe v. Westmont College Is Now A Published Decision

Prevailing Section 1021.5 Parties Successfully Defending The Case On Appeal Are Allowed To Move For Attorney Fees Post-Appeal Even If The Trial Court Denied Their Pre-Appeal Fees Motion.

            We discussed Doe v. Westmont College, Case No. B303208 (2d Dist, Div. 6) in our January 26, 2021 post.  The case was unpublished at the time, but was certified for publication on February 8, 2021.

            In Doe v. Westmont College, plaintiff appealed after the trial court denied his motion for $85,652, under Code Civ. Proc. § 1021.5, for fees incurred on a prior appeal successfully defending the trial court’s judgment issued in his favor – which resulted in a published decision wherein the 2/6 DCA reversed and remanded for a redo.  The trial court had abused its discretion by failing to examine whether private enforcement was necessary and whether the financial burden of private enforcement warranted a fees award.  The panel also found that plaintiff’s failure to apportion fees between those that advanced his private interests and those that advanced the public interest was not an appropriate basis for denial – with the trial court having broad discretion to apportion fees if seeking party has failed to do so. 

          As to defendant’s contention that plaintiff was not entitled to § 1021.5 fees post-appeal because he had not appealed the trial court’s denial of his pre-appeal request for § 1021.5 fees, the panel disagreed.  It found plaintiff’s pre-appeal and post-appeal motions for fees were separate, independent motions.  Plaintiff’s post-appeal motion for fees was not a repeat of the original fees motion that was denied and not appealed, and the resulting published opinion from plaintiff’s defense of the trial court’s judgment in the first appeal conveyed a significant benefit on a large group of people.  In certifying the opinion for publication, the 2/6 DCA modified the opinion to add the following statement: “In some cases, although parties succeed at trial, the full breadth of their success is not realized until they defend the case on appeal. May such a party move for attorney fees post appeal if the trial court denied their preappeal attorney fee motion? We conclude that they may do so.”

Allocation, Consumer Statutes, Multipliers, Preemption: Prevailing Lemon Law Plaintiff Winning Only $21,957.25 In Damages At Jury Trial Properly Awarded $169,602 In Attorney Fees, Inclusive Of .2 Multiplier, Against Dealership And Finance Company

Apportionment Was Not Necessary Due To Intertwined Claims, Multiplier Was Appropriate Given Plaintiff’s Counsel’s Contingency Risk, And – Contrary To Lafferty And Spikener – 2/5 DCA Determined That The Holder Rule Does Not Limit The Attorney Fees A Plaintiff May Recover From A Creditor-Assignee.

            For a great discussion on the Holder Rule cap and its applicability to attorney fees, we commend Pulliam v. HNL Automotive Inc. et al., Case No. B293435 (2d Dist., Div. 5 January 29, 2021) (published) to our readers.

            In Pulliam, a Song-Beverly Act (California’s lemon law) plaintiff was awarded $169,602 in attorney fees, consisting of a $141,335 lodestar plus a .2 multiplier, after prevailing at jury trial and being awarded $21,957.25 in damages against dealership and the finance company that accepted assignment of the retail installment sales contract for her purchase of a “Certified Pre-Owned” 2015 Nissan Altima. 

            Defendants appealed – arguing: (1) plaintiff’s counsel failed to provide evidence of their hourly rates, (2) the trial court erred in refusing to apportion attorney’s fees between plaintiff’s successful and unsuccessful causes of action, (3) the trial court erred in applying a lodestar multiplier because the lawsuit was not exceptionally difficult and plaintiff’s counsel was not exceptionally skilled, and (4) finance company was not liable for attorney’s fees under title 16, section 433.2 of the Code of Federal Regulations (2020) (the Holder Rule) because its liability could not exceed the amount plaintiff paid to it. 

            The 2/5 DCA, in a 3-0 opinion authored by Justice Rubin, affirmed – finding no abuse of discretion, and concluding the Holder Rule does not limit the attorney fees a plaintiff may recover from a creditor-assignee.  First, plaintiff’s counsel attached a declaration – which included a copy of the firm’s invoice identifying the timekeepers, the work performed, and the timekeepers’ hourly rates – to plaintiff’s fee motion.  Additionally, plaintiff’s counsel’s declaration described the firm’s rates and the qualifications of each timekeeper, along with a national survey of prevailing rates among consumer protection attorneys – including California attorneys.  Second, the record supported the trial court’s view that apportionment of the fees was not possible because the successful and unsuccessful claims involved a common core of facts and intertwined theories.  Third, the panel found the multiplier was modest and accounted for the risk plaintiff’s counsel took in litigating the case against defendants whom the court found made the case challenging and protracted.

            Finally, as to the Holder Rule – promulgated by the Federal Trade Commission in 1975 as a consumer protection measure to abrogate the holder in due course rule for consumer installment sales contracts funded by a commercial lender – the panel found its cap does not apply to attorney fees.  The final sentence of the Holder Rule states that recovery by the debtor shall not exceed the amounts paid by the debtor under the installment sales contract. Finance company asserted that this cap limited plaintiff’s recovery of both damages and attorney fees from it to the amount she paid under the installment contract – relying on Lafferty v. Wells Fargo Bank, N.A., 25 Cal.App.5th 398 (2018) [discussed in our July 20, 2018 post] and Spikener v. Ally Financial, Inc., 50 Cal.App.5th 151 (2020) [discussed in our June 11, 2020 post].  However, as the panel pointed out, many opinions on this issue have been contradictory, and it concluded that to include attorney’s fees in the Holder Rule’s limitation on recovery would be out of sync with its objective of reallocating the costs of the seller’s misconduct from the consumer back to the seller and creditor.  Additionally, the California Legislature had taken a similar view in enacting Civil Code § 1459.5 – intending to repeal Lafferty and allow recovery of fees in excess of the Holder Rule’s cap.  As to financial company’s argument that, as held in Spikener, the FTC’s Rule Confirmation (holding fees are included in the cap) is entitled to deference and preempts § 1459.5, the panel disagreed – finding the FTC’s Confirmation did not meet the four-marker test set forth in Kisor v. Wilkie, 139 S. Ct. 2400 (2019) for determining when regulatory deference is appropriate.  “[I]n considering deference, ‘a court must make an independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight. [Citations.]’” (Id. at p. 2416.)

Allocation, Private Attorney General: Trial Court’s Application Of The Wrong Standard And Inappropriate Basis For Denying Prevailing Plaintiff’s Postappeal Section 1021.5 Motion For Fees Necessitated Remand

Trial Court Focused On The “Punishment” The Fees Award Would Impose On Defendant For Unsuccessful Appeal Of Judgment Rather Than Examining Determination Factors For Award Under § 1021.5 And Also Erred In Denying Based On Plaintiff’s Failure To Apportion Fees Between His Private Interests And The Public Interest.

            In Doe v. Westmont College, Case No. B303208 (2d Dist., Div. 6 January 25, 2021) (unpublished), plaintiff challenged the defendant college’s determination that he committed sexual assault in a petition for writ of administrative mandate – arguing that Westmont did not give him a fair hearing and that substantial evidence did not support its decision.  The trial court granted plaintiff’s petition, but denied his motion for $58,466 in fees under Code Civ. Proc. § 1021.5.  Plaintiff did not appeal the fees denial, but defendant unsuccessfully appealed the judgment.  After the 2/6 DCA affirmed in a published opinion, plaintiff sought to recover $85,652, under § 1021.5, for fees incurred on appeal.  The trial court denied – finding the published opinion’s significant benefit conferred on a large group of people arose from defendant’s decision to appeal, not plaintiff’s, and that a fee award to plaintiff would “punish [defendant] for appealing rather than vindicate the purposes behind . . . section 1021.5.”  The trial court also denied on the basis that plaintiff provided no apportionment between fees that pertained solely to plaintiff’s private interests and those that advanced the public interest.

            On appeal, plaintiff argued that the trial court erred when it denied his postappeal motion for attorney fees because: (1) his action resulted in the enforcement of an important right affecting the public interest, (2) his action conferred significant benefits on a large group of people, and (3) the necessity and burden of private enforcement made a fee award appropriate. The panel agreed with plaintiff’s first two contentions, and concluded that the trial court had abused its discretion by failing to examine two factors in making its determination re § 1021.5 fees – whether private enforcement was necessary, and whether the financial burden of private enforcement warranted a fees award.  Instead the trial court focused on the “punishment” defendant would suffer for exercising its right to appeal – thereby applying the wrong standard in determining the merits of plaintiff’s motion for fees.

            Additionally, the panel found that plaintiff’s failure to apportion fees between those that advanced his private interests and those that advanced the public interest was not an appropriate basis for denial – with the award of attorney fees being an obligation if the party seeking fees has met the criteria for the award, and the trial court having the broad discretion to apportion such fees if the seeking party is not able to do so.

BLOG UPDATE:  We can now report that Doe v. Westmont College was certified for publication on February 8, 2021.

Allocation, Section 1717: No Abuse Of Discretion In Trial Court’s Allocation Which Reduced Plaintiff’s Fee Award To $143,257.92 From Requested $800,165.00, Nor In Its Award Of $105,000 In Fees And $4,609.77 In Costs To Prevailing Defendants

Plaintiff Did Not Support Its Arguments With An Adequate Record On Appeal, Citations To The Record And Legal Authority.

            Newstart Real Estate Investment v. Huang, Case No. B289513 (2d Dist., Div. 8 December 18, 2020) (unpublished) is a breach of contract, fraud, and conspiracy action involving the sale of a Las Vegas Ramada Inn.  Plaintiff purchaser claimed its principal did not speak or read English, that defendants had conspired together to take advantage and sell the property at an inflated price and had failed to disclose the requirements to transfer of the Ramada franchise license to plaintiff – with the transfer of the franchise being the primary consideration for the purchase, but something plaintiff was unable to obtain.  Plaintiff sued seller and its members as alter egos, the escrow company and its principal, and the real estate brokerage and its principal who brokered the transaction.  The jury trial resulted in awards against broker and broker’s principal in $1.62 million in damages, over $1.2 million against seller, and another $280,000 in punitive damages against broker’s principal.  However, the trial court entered judgment omitting broker as a joint tortfeasor following post-trial hearings regarding some ambiguities as to the broker and its principal in the jury’s special verdict, and granted broker principal’s post-trial motion for a new trial on the punitive damages based on broker principal’s inability to pay .  The escrow defendants received judgment in their favor, and seller’s members were found not to be alter egos of seller in a bifurcated trial. 

            Plaintiff moved for $800,165 in attorney fees against seller based on the fees provision in the purchase agreement – with the trial court awarding $143,257.92 after reducing the fee to 1/6^th the amount requested based on the number of defendant groups and including fees for bringing the fee motion.  Individual seller defendants sought $596,598 in fees, pursuant to Civ. Code § 1717, but were awarded $105,000 as the trial court observed they had failed to demonstrate the reasonableness of their requested fees and could not recover fees incurred by seller in its defense.  Finally, broker sought prevailing party costs of $23,000, and the trial court – in partially granting plaintiff’s motion to tax – awarded broker $4,609.77 in costs.

            Plaintiff appealed, raising a number of challenges against the trial court’s final judgment.  Unfortunately for plaintiff, it failed to support its arguments with an adequate record on appeal, citations to the record and legal authority – thereby demonstrating no abuse of discretion and sealing its fate.  In a 3-0 opinion, the 2/8 DCA affirmed.

Allocation, Costs: No Abuse Of Discretion Where Trial Court Refused To Tax Costs Among Multiple Defendants Who Settled Out Of The Case Before Trial

Costs Incurred By Plaintiffs In Relation To Other Defendants Were Directly Relevant To Case Against Appealing Defendant And Reasonably Necessary To The Litigation.

            In Booker v. Imerys Talc America, Case No. A153995 (1^st Dist., Div. 3 December 11, 2020) (unpublished), wife and heirs of decedent continued mesothelioma-related litigation against seven defendants after his death.  Most defendants settled with plaintiffs prior to the jury trial – with the remaining two defendants found liable for increasing decedent’s risk of mesothelioma.  When plaintiffs moved post-judgment for prevailing party costs in the amount of $319,549.54, one of the two defendants filed a motion to tax costs.  Specifically, defendant sought to reduce plaintiffs’ recovery of costs by $80,890.28 for costs related to other defendants.  The trial court partially granted in the amount of $44,948.58 for the costs of expert witness services incurred prior to plaintiffs’ § 998 offers, photocopying and enlarged exhibits, but declined to tax costs related to other defendants. 

            The 1/3 DCA affirmed – finding no abuse of discretion.  First, all cases cited by defendant, to support its contention that trial courts have discretionary authority in all cases to reduce costs against a defendant by amounts apportionable to other defendants no longer in the case, were distinguishable in that they involved cases where some of the parties prevailed against the party seeking costs. Additionally, none of the cases involved a dispute concerning the trial court’s discretion to allocate costs among multiple defendants to reduce plaintiffs’ recovery of costs.  Second, the costs that the trial court refused to tax were directly relevant to plaintiff’s case against defendant and reasonably necessary to the litigation.  Plaintiffs incurred filing, motion, service of process and deposition costs – related to other defendants – in order to determine the amount of asbestos that caused decedent’s mesothelioma, determine the merit of defendant’s affirmative defenses that other defendants were responsible for decedent’s mesothelioma, and ascertain defendant’s share of fault for liability and settlement purposes.

Allocation, Employment, Section 998: Cruz v. Fusion Buffet, Inc. Is Now A Published Decision

Labor Code Cost-Shifting Provisions Trumped Code of Civil Procedure Section 998’s Cost-Shifting And Meant No Fees/Costs Recovery For Successful Section 998 Defendants.

            We discussed Cruz v. Fusion Buffet, Inc., Case No. D075479 (4^th Dist., Div. 1), in our October 17, 2020 post, which was unpublished at the time.

            In Cruz, defendants unsuccessfully appealed the fees/costs awarded to plaintiff who had prevailed in various wage/hour violations against her former employer but not against certain alter ego individual defendants.  Defendants argued that the fees/costs should have been apportioned between compensable and non-compensable claims, that the trial court was required to deny plaintiff’s motion for fees/costs because she had obtained a less than $25,000 compensatory award in a civil unlimited case, but the alter ego defendants also argued that the trial court abused its discretion in failing to award their requested Code Civ. Proc. § 998 fees/costs for beating their respective § 998 offers of one dollar.

            Although the 4/2 DCA panel acknowledged that Plancich v. United Parcel Service, Inc., 198 Cal.App.4^th 308, 310-312 (2011) might dictate a different result under Labor Code section 1194, the panel disagreed with Plancich’s analysis and sided with the view that the one-sided, pro-plaintiff statute prevailed over section 998 (which dealt only with section 1032 costs).

            Cruz was certified for publication on November 9, 2020.

Allocation; Landlord/Tenant: $29,490 In Contractual Fees To Married Residential Tenants Prevailing In Unlawful Detainer Action Was No Abuse of Discretion

Lack Of Hearing Reporter’s Transcript Hampered Review, But Attorney Efforts Benefitting Joint Tenants, Even If Attorney Only Formally Retained By One Tenant, Was Appropriate.

            In Ahdoot v. Chernyavskiy, Case No. B303359 (2d Dist., Div. 2 Nov. 4, 2020) (unpublished), landlord lost an unlawful detainer on summary judgment to two married residents based on a defective notice to quit the premises.  One tenant was in default at the time the eventually successful summary judgment motion was filed, but that default was vacated due to improper service.  An attorney represented one of the tenants although counsel jointly filed a summary judgment to the benefit of both.  Tenants moved for $32,140 in joint contractual attorney’s fees, with the lower court awarding $29,490 after a hearing.  Landlord appealed, although providing no reporter’s transcript of the fee hearing.

            The 2/2 DCA affirmed, rejecting both technical and reasonableness of fees challenges.

            Landlord argued that one tenant’s “defaulted” status inflected the fee award based on the earlier summary grant when the tenant was in default, but the appellate court found that this did not void things and ultimately that tenant righted the situation by getting the default vacated.  Besides, the right course was to attack the summary judgment grant, and landlord never appealed that judgment.  Landlord next contended that it was improper to award fees to tenants jointly when only one tenant was really represented, but that argument was nixed because no legal authority was cited to support the position that a lower court had to parse out legal fees for tenants jointly sued in an unlawful detainer where the attorney’s efforts essentially benefited both of them.  Also, landlord’s failure to provide a hearing transcript made it impossible to show what the lower court did constituted an abuse of discretion.  Finally, it was not unfair to allow fee recovery for the joint tenants given that they were married and beat back an attempt to dispossess them from their residential unit.  As such, no fee substantiation had to parse out efforts as between the two tenants. 

Allocation, Consumer Statutes, Lodestar, Multipliers: Santana Decision Now Published

Apportionment Between Song-Beverly Act Fees/Costs And Other Causes Of Action, Where Fees Are Not Permitted, Not Necessary Where Claims Are Inextricably Intertwined.  

            In our September 29, 2020 post, we discussed Santana v. FCA US, LLC, Case Nos. G057244/G058020 (4^th Dist., Div. 3), which was unpublished at the time.

            In Santana, the trial court awarded Song-Beverly Act fees/costs of $510,637.87, including a 2.0 multiplier, after a jury found defendant liable for breach of the express and implied warranty, and fraudulent concealment for plaintiff’s claims arising from the defective vehicle he purchased.

            On appeal, the 4/3 DCA vacated a significant portion of damages awarded to plaintiff when it reversed on the fraudulent concealment claim.  However, the appellate panel affirmed the entirety of the fees/costs awarded by the trial court – finding no abuse of discretion because apportionment between the Song-Beverly claims and non-fee claims was not needed given that plaintiff’s causes of action stemmed from an issue common to all of his claims.  As such, plaintiff’s claims were inextricably intertwined such that apportionment would be impracticable, if not impossible.

            Santana was certified for publication on October 23, 2020.

Allocation, Employment, Section 998: Plaintiff Employee, In Unlimited Civil Case, Winning Limited Jurisdiction Damages Properly Awarded Wage/Hour And Break Claim Intertwined Fees

Section 998 Cost-Shifting Did Not Preempt Labor Code Cost-Shifting Provisions So As To Allow Fee and Costs Recovery To Certain Defendants.

            Cruz v. Fusion Buffet, Inc., Case No. D075479 (4^th Dist., Div. 1 Oct. 15, 2020) (unpublished) is an interesting unpublished decision discussing the intersection of Labor Code costs shifting and CCP § 998 costs shifting.  In the end, which scheme prevailed—stay tuned, but the employment provisions did.

            Plaintiff ex-employee sued for various wage/hour violations, including meal and rest breaks, eventually winning a compensatory bench trial award under $25,000 against employer but not against certain putative alter ego individual defendants, even though the matter was filed as an unlimited jurisdiction matter.   Plaintiff moved for fees under various Labor Code provisions against employer to the tune of $107,118.75 in fees (inclusive of a 1.25 multiplier) and to the tune of $4,583.35 in costs.  The alter ego defendants moved for fees and costs against plaintiff in the sum of $22,735.  Defendants moved to strike/tax costs claimed by plaintiff, and plaintiff moved to strike/tax costs asserted by the alter ego defendants.  In the end, the lower court granted plaintiff’s fees motion for the much lesser amount of $47,132.50, denied the defense motions to strike/tax costs, denied the alter ego defendant’s fees motion, and granted plaintiff’s motion to strike/tax costs as to the alter ego defendants. 

            Defendants timely appealed, but all of the post-judgment orders were affirmed.

            Plaintiff’s fee/costs award was proper because the lower court was not required to deny a fee/costs request where the compensatory award in an unlimited matter was one which could have been awarded by a limited jurisdiction court—it was a discretionary decision, and there was no abuse of discretion under the circumstances.  The defense argued that the lower court should have apportioned fees between compensable wage/hour claims and non-compensable meal/rest break claims, but the trial judge’s determination that the fees were inextricably intertwined ended the challenge based on the interrelated nature of proof relating to all of these claims.  Finally, the fees were not grossly inflated and unreasonable given there was fairly detailed fee substantiation and the trial court observed the conduct of counsel in a fee request which was not hugely substantial in nature—bolstered by a more than half reduction in requested fees.

            The interesting part of this opinion is whether the alter ego defendants, who sent a CCP § 998 offer which was successful, were properly refused costs requested against plaintiff.  The problem here was that the Labor Code costs-shifting provisions were inapt for these defendants, such that section 998 was the only avenue--but it could not prevail over the more specific employment costs-shifting provisions.  The 4/2 DCA panel acknowledged that Plancich v. United Parcel Service, Inc., 198 Cal.App.4^th 308, 310-312 (2011) might dictate a different result under Labor Code section 1194, but the panel disagreed with Plancich’s analysis and sided with the view that the one-sided, pro-plaintiff statute prevailed over section 998 (which dealt only with section 1032 costs).  On the alter ego defendants’ argument that fees and costs were justified under Labor Code section 218.5, no fees/costs-shifting was warranted based on the lower court’s finding that plaintiff did not bring the alter ego case in bad faith; she presented proof of same, but simply lost.  All post-judgment orders affirmed.

BLOG UPDATE: Cruz was certified for publication on November 9, 2020.

Allocation, Consumer Statutes, Lodestar, Multiplier: Although Fraudulent Concealment Compensatory And Punitive Damages Were Reversed, $510,637.87 Fee/Costs Award Under Song-Beverly Act Case Affirmed On Appeal

Failure To Apportion/Double Counting Lodestar And Enhancement Arguments Not Supported By The Record.

            In many cases, a fees-seeking litigant needs to apportion between fee entitlement and non-fee entitlement claims, unless the thrust of the case involved a fee entitlement case so that it was inextricably intertwined with a non-fee case.  If so, even a reversal of the non-fee case upholds the fee award on the intertwined fee entitlement basis of the case.

            That is what occurred in Santana v. FCA US, LLC, Case Nos. G057244/G058020 (4^th Dist., Div. 3 Sept. 29, 2020) (unpublished).

            In a defective vehicle case for Song-Beverly Act violations and fraudulent concealment, plaintiff was awarded $1,229,531.71 (of which $1 million was punitive damages under the fraud count) and then awarded Song-Beverly Act fees/costs of $510,637.87 inclusive of a positive 2.0 multiplier, but less than 2.5 multiplier requested by plaintiff. 

            The 4/3 DCA affirmed the fees/costs award in a 3-0 panel decision authored by Justice Ikola, although there was a large scale-back of the fraud damages, paring about $1.134 million from the overall award.

            The defense argued that there needed to be an apportionment, but that did not resonate based on the fraudulent concealment being intertwined and with the defense not offering a realistic apportionment proposal for the trial or appellate courts to consider.

            With respect to the “double dip” argument, the appellate court indicated that a plaintiff could not rely on a contingency risk argument if it was being used to justify the lodestar and an enhancement.  However, that did not occur here because the trial judge did not use the contingency risk to justify the hourly lodestar rate but only used it for true enhancement, also mentioning complexity and attorney skill which would have gotten to the same result.

UPDATE: Santana was certified for publication on October 23, 2020.

Allocation, Partition: Code Civ. Proc. § 874.010 Attorney’s Fee Award Of $105,147.50 For Partition Claim Affirmed Notwithstanding The Inclusion Of Fees Incurred For Other Causes Of Action

All Of The Claims And Defenses In The Action Were Inextricable Intertwined.

            In partition actions, Code Civ. Proc. § 874.010(a) authorizes an award of “[r]easonable attorney’s fees incurred or paid by a party for thee common benefit,” and Code Civ. Proc. § 874.040 requires the trial court to “apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.”

            In Flannery v. Murray, Case No. B287284 (2d Dist., Div. 3 August 24, 2020) (unpublished), plaintiff and defendant purchased a 13-acre horse boarding ranch.  They agreed to be 50/50 owners, and each contributed toward the down payment and improvements, but defendant had a low credit score, so her name was not on the loan nor the title.  The parties’ 20-year relationship ended 7 years later, and litigation ensued over ownership of the parties’ boarding ranch – as well an insurance payout for a fire at the ranch.  Among the many causes of action alleged, both claimed a cause of action for partition.

            In the end, the trial court determined defendant was a half-owner of the ranch along with plaintiff, and was entitled to one-half of the insurance proceeds.  Defendant then moved for a post-judgment fees award pursuant to § 874.010 – seeking from plaintiff one-half of the $371,076.66 in fees she incurred.  Plaintiff opposed – arguing the fees were excessive and that defendant was entitled to recover only the reasonable fees she incurred in prosecuting her partition claim. 

            The trial court disagreed with plaintiff's contention, and awarded defendant $105,147.50 – reduced from the requested $185,538.33 for some excessiveness in time claimed to have been spent by plaintiff’s counsel, for excessive hourly rates, and for time entries for unrelated litigation. 

            Plaintiff appealed – arguing the trial erred because defendant was entitled to fees for no more than 26.5 hours of time spent on her partition claim, not for fees defendant incurred in connection with her other claims or in defense of plaintiff’s claims.

            The 2/3 DCA affirmed – finding no abuse in discretion in the trial court’s determination that all of the claims and defenses in the case related to the partition claims, and finding the trial court properly determined all the attorney fees incurred in the action were inextricably intertwined.  As a result, all the expenses incurred qualified for an award.   (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129-130.)

Allocation, Construction, Insurance: Lower Court’s Denial Of Any Fee Recovery To General Contractor’s Insurer For Defending The GC, Based On Equitable Subrogation, Was Error

GC’s Insurer Was Entitled To Equitable Reimbursement Of Defense Costs Relating To Subcontractor Work As Well As A Reasonable Allegation Relating To Reasonable “Mixed” Defense Efforts.

            In Pulte Home Corp. v. CBR Electric, Inc. (St. Paul Mercury Ins. Co.), Case No. E068353 (4^th Dist., Div. 2 June 10, 2010) (published), a trial judge denied in entirety a general contractor’s insurer’s request for reimbursement of attorney’s fees expended in defending the GC  under an equitable subrogation claim even though GC-subcontractors’ contracts required some subs to defend the GC for their work which was alleged to have been defective in a construction defect suit.  The insurer had requested not only reimbursement of direct fees expended for defending on the work done by the subs, but also mixed, other defense work which it claimed was related to the overall defense of the case benefitting the subs—right around $189,000 out of $209,000 expended by the insurer in GC’s defense.  On appeal, the 4/2 DCA reversed and remanded.  It determined that insurer’s equitable subrogation action allowed an insurer to recoup from subs that portion of defense costs each sub owed as a result of its duty to defend the GC, but not entire defense fees attributable to other work (the overall defense of the case).  Based on Interstate Fire & Cas. Ins. Co. v. Cleveland Wrecking Co., 182 Cal.App.4^th 23 (2010) and Valley Crest Landscape Development Inc. v. Mission Pools of Escondido, Inc., 238 Cal.App.4^th 468 (2015), insurer was entitled to reimbursement of reasonably allocated fees from the subs.  If only the direct fees for sub defense had been involved, the appellate court would not have remanded; however, the claim for “mixed” defense fees of a related nature required an allocation—a division left for the trial judge to make in a remand proceeding.