CALIFORNIA ATTORNEY'S FEES

Costs, Requests For Admissions: Jane Doe Plaintiff Losing At Trial Based On A Nonsuit Properly Assessed With $19,500 In Costs-Of-Proof Sanctions And With Routine Costs Of $107,440.35

Respondents Conceded $6,988.27 In Claimed Costs Were Not Allowable.

            Doe v. Dept. of Children & Family Services, Case No. B276699 (2d Dist., Div. 8 July 18, 2019) (published; previously issued as unpublished on June 20, 2019) is a case demonstrating how respondents, on appeal, can gain appellate credibility by conceding a legal issue for which there is no substantive response.

            In this case, plaintiff Jane Doe lost on a nonsuit at trial, after other claims were pared during pre-trial stages, to DCFS and other governmental defendants.  The lower court agreed that Jane Doe wrongfully denied 12 of 16 RFAs, imposing costs-of-proof sanctions for trial efforts in presenting evidence which led to the nonsuit to the tune of $19,500 (out of a requested $85,459.50).  Then, the lower court granted defendants $114,428.72 in routine costs after taxing $38,289.15 in claimed costs.  Jane Doe appealed.

            RFA Costs-of-Proof Sanctions.  The appellate court agreed that the 12 RFAs were wrongfully denied, especially ten of them in light of the County providing computer logs to refresh Jane Doe’s memory about certain visits. Her claim that she could not recall the exact dates did not resonate given the computer logs provided by the County.  Jane Doe also argued that none of the “denied” facts were used in the nonsuit determination, but the appellate court rejected this given that trial was under way and that defendants did have to present proof on the number of visits.  The nonsuit “twist” in the procedural context of this case was inconsequential.

            Routine Costs.  Respondents did a good thing upfront here.  They admitted that $6,988.37 in investigative costs were not allowable, which we believe added credibility to the defendants’ positions on appeal.  With respect to the other routine costs being challenged, they were sustained on appeal this way:  (1) filing fees were allowable because they were still “incurred” even though the government is exempt from paying such fees; (2) services fees for witnesses not called at trial are allowable in the lower court’s discretion; (3) section 998 expert fees for experts not called to testify are recoverable in the court’s discretion; (4) trial exhibit copying costs are authorized; (5) lodging and meal expenses for out-of-town depositions by attorneys and paralegals are discretionarily proper; (6) courier and messenger fees are recoverable in the lower court’s discretion; and (7) litigation support vendor fees and telephonic court appearance fees are authorized. 

Civil Rights, Costs, Employment, Section 998: Where Thrust Of Losing Plaintiff’s Suit Was A FEHA Claim, Trial Court Properly Refused To Award CCP § 998 Costs To Winning Defendant Despite Loss On Non-FEHA Whistleblower Claim

Prominence Of Suit Prevailed, Plus Appellate Court Offers Tips On What Trial Courts Ought To Follow When There Is A Split In Intermediate Appellate Thought On An Issue.

            In Thiry v. Pet Partners, Inc., Case No. E070851 (4^th Dist., Div. 2 June 20, 2019) (unpublished), plaintiff brought a mixed FEHA/whistleblower/UCF suit based on allegations of whistleblower activities and medical leave retaliation.  Plaintiff lost, with defendant moving for recovery of costs (including expert witness fees) under CCP § 998.  The lower court denied the request, determining that the FEHA request was predominant/not frivolous in nature and that no apportionment of costs could really be had on non-FEHA claims because everything was intertwined.  Defendant appealed, but the 4/2 DCA affirmed.

            The first issue really was dispositive, namely, a split on appellate thinking on whether 998 costs could be recovered in a FEHA case where the lower court determined plaintiff’s FEHA claim was not frivolous.  The 4/2 DCA followed its prior opinion in Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 19 Cal.App.5^th 525 (2018) [finding costs nonrecoverable] versus the opposite conclusion by the 4/1 DCA in Sviridov v. City of San Diego, 14 Cal.App.5^th 514 (2017) [costs were recoverable in a whistleblower case].  [NOTE:  The 2/8 DCA in Huerta v. Kava Holdings, Inc., 29 Cal.App.5^th 74, 84 (2018) followed Arave over Sviridov.]  So, ordinary fee shifting costs were not available under FEHA.  However, what about the non-FEHA whistleblower claims?  The 4/2 DCA agreed that the FEHA claims predominated, such that it would defeat FEHA policies to not allow costs given that the lower court found the claims were intertwined.

            BLOG OBSERVATION—The lower court, faced with a split on the FEHA issue, followed the conclusion reached by the 4/2 DCA reviewing court from its own venue.  The 4/2 DCA recognized that trial courts can follow any decision it finds more persuasive when a difference in appellate thinking is involved, but the appellate court did note that is generally wise for the trial court to follow the lead of the appellate court in the District in which it is located.  (See McCallum v. McCallum, 190 Cal.App.3d 308, 315 n. 4 (1987).) 

Costs, Employment: Defendant Winning Against Plaintiff’s Employment-Based Claims, Although Losing Cross-Claims, Entitled To Routine Costs, But Not Costs Under Labor Code Section 218.5

No Finding That Claims Made Or Prosecuted In Bad Faith Failed To Trigger Section 218.5 Cost-Shifting.

            Plaintiff and defendant/cross-complainant lost both of their suits after a bench trial, plaintiff losing wage/hour claims and cross-complainant losing fiduciary duty/joint venture cross-claims.  The lower court determined both sides should bear their own costs, with no determination made that plaintiff’s employment claims were brought in bad faith.  Defendant appealed, claiming entitlement to routine costs under Code of Civil Procedure section 1032(a)(4) and Labor Code section 218.5.

            The 4/1 DCA, in Thompson v. Fuhrman, Case No. D075129 (4^th Dist., Div. 1 May 28, 2019) (unpublished), determined that defendant was entitled to costs under section 1032(a)(4), but not Labor Code section 218.5.

            Even though losing his cross-claims, defendant qualified as a prevailing party for routine costs under section 1032(a)(4), because he is a defendant in a situation where neither plaintiff nor defendant obtained any relief.  It did not matter that he lost the cross-claims.  (McFarland, Vasquez & Partners, Inc. v. Downey Savings & Loan Assn., 231 Cal.App.3d 1450, 1454 (1991); Cussler v. Crusader Entertainment, LLC, 212 Cal.App.4^th 356, 371 (2012).)  Nothing In Labor Code section 226 prevented a costs award to defendant, with the 4/1 DCA panel relying on the analogous reasoning in Plancich v. United Parcel Services, Inc., 198 Cal.App.4^th 308, 313 (2011) with respect to Labor Code section 1194. 

            However, defendant was not entitled to costs under Labor Code section 218.5.  As a nonemployee party “victor,” there had to be a determination that plaintiff’s employment claims were brought in bad faith, with that not occurring here.  So, on remand, defendant will receive some routine costs under CCP § 1032(b), but not Labor Code section 218.5.

Costs, POOF!, Private Attorney General: Plaintiff’s CCP §1021.5 Fee Award Of $827,035 Went POOF! On Appeal

Plaintiff Did Not Obtain Its Primary Litigation Objective Such That Fee Award Was Abuse Of Discretion; Prevailing Defendant’s Costs Request Was Improperly Stricken Because It Prevailed.

           San Diegans For Open Government v. City of San Diego & San Diego Tourism Marketing Dist. Corp., Case No. D072181 (4^th Dist., Div. 1 April 4, 2019) (unpublished) shows how fee entitlement cases can involve “wild swings” in fortune where an appellate court looks at the record and decides entitlement was not there. Beyond that, it independently reviews whether a prevailing defendant for a routine costs award should have it taken away based on “equitable” grounds—naught!

           In this one, plaintiff sued defendants alleging that an assessment was an illegal tax requiring voter approval. Although City did modify the assessment to a small degree, plaintiff lost the bid to put the assessment to voter approval—the primary litigation objective. However, the lower court decided that plaintiff was a “catalyst” for the assessment modification, awarding it private attorney general fees of $827,035, including a .25 negative multiplier out of plaintiff’s request for $2.6 million. It also denied District’s routine costs, rejecting the notion that it was the prevailing party under CCP § 1032.

            On appeal, City and District did very well to challenge the fee grant and the costs denial.

            After an independent review of the record, the 4/1 DCA determined that plaintiff did not obtain its primary relief vis-à-vis the illegal tax/voter relief. Instead, the circumstances showed that the City’s modification of the assessment was not causally related to plaintiff’s lawsuit. That required reversing the fee award as a matter of law – POOF!

            District successfully challenged the routine costs denial. District did fall into the categories of being a prevailing party under section 1032 after plaintiff dismissed its lawsuit voluntarily. Given that this was a matter of right, the trial judge’s determination to deny on “equitable grounds” could not thwart District’s statutory entitlement to costs.

Costs, Private Attorney General: Petitioner Winning Some Claims Which Vindicated A Local Ordinance Passed By Public Initiative Vote Was Prevailing Party For Routine Costs And Might Be Prevailing Party For CCP § 1021.5 Fees

Successful Party And Significant Benefit Prongs Met, But Remanded To See If Financial Burden Element Met Under Section 1021.5.

            The Third District in Friends of Spring Street v. Nevada City, Case No. C086563 (3d Dist. March 28, 2019) (unpublished) had found in an earlier appeal that petitioners had properly challenged real parties’ ability to operate a bed and breakfast in a residential area (in Kendall House in Nevada City), although not winning all claims under its mandate petition. In large degree, petitioners had vindicated a people’s voted local initiative, Measure G, which made B&Bs nonconforming uses in certain zoned areas, something accomplished in the earlier appeal. Later, petitioner requested routine costs and private attorney general attorney’s fees. The trial court denied both requests, which prompted petitioner’s appeal in Case No. C086563.

            The Third District reversed and remanded to award routine costs and to determine if the financial burden of CCP § 1021.5 was met—and, if so, the amount of reasonable fee recovery was due to petitioner.

            Petitioner did obtain its main litigation objective in relation to the B&B, such that it was entitled to prevailing party routine costs under CCP § 1032.

            The appellate court also did buy the trial judge’s conclusions for denying fees, namely, petitioner was not successful and did not vindicate a right involving the general public. Petitioner was indeed successful with respect to the B&B issue. Given that zoning is an important right of a public interest, the vindication of Measure G—a people’s voted initiative—was even more important. However, the lower court did not consider the financial burden aspect of section 1021.5, so a remand was in order to analyze this element of fee entitlement.

Costs, Fee Clause Interpretation, Homeowner Associations, Section 1717: Trial Court Properly Denied Fee Recovery To Prevailing Defendants Under Davis-Stirling Act Or Civil Code Section 1717 And Properly Struck The Costs Memorandum

Action Was Based On Tort, Not CC&Rs; Fee Clause Did Not Reach Tort Claims Under Section 1717; And Defendants Failed To Apportion Costs As Between Themselves.

            In the fee area, you must have a solid fee entitlement basis and you usually have to apportion costs where there are several prevailing defendants rather than claim total costs without an appropriate allocation. Schuchmacher v. McDermott, Case No. B288130 (2d Dist., Div. 3 March 28, 2019) (unpublished) is a case where prevailing defendants obtained no fees and costs because they could not establish fee entitlement and did not apportion routine costs.

            Plaintiffs suffered an adverse summary judgment against an HOA’s general manager and its current directors (who were not directors when the main plaintiff owned the condo unit) in a tort action involving insurance fire proceeds. Prevailing defendants moved to recover attorney’s fees of $361,586 and filed to recover $ 27,290 in routine costs. The trial judge denied the fee motion and struck the costs memorandum.

            The 2/3 DCA affirmed. The problem for defendants was that the tort claims were not efforts to enforce governing HOA documents, so entitlement under Davis-Stirling Act’s Civil Code section 5975(c) was lacking. Civil Code section 1717 was of no help either, because the CC&R fee clauses were narrow and did not apply to the tort claims against a general manager or the current directors. With respect to striking the costs, that was no abuse of discretion because defendants claimed all litigation costs, without apportioning between plaintiffs as well as defendants.

Costs, Damages: $298,843 Attorney’s Fees Recovery To Prevailing Cross-Defendant Subcontractor In Personal Injury Case Affirmed On Appeal

Attorney’s Fees Could Be Claimed As Costs Based On Contractual Fees Clause, Not Having To Be Plead As Damages And Not Subject To Any Reduction Because Insurance Carrier Covered Fees For Cross-Defendant.

            In Strouse v. Webcor Construction, L.P., Case No. A148863 (1^st Dist., Div. 3 March 27, 2019) (unpublished), plaintiff, employee of subcontractor ACCO, suffered a workplace injury at Cal Berkeley’s Memorial Football, ensuing him to sue general contractor Webcor for negligence. Webcor, in turn, sued subcontractor ACCO for indemnity (under an agreement with a contractual fees clause). A jury found Webcor 100% liable, and the cross-complaint was adjudicated in favor of ACCO. The trial judge later awarded ACCO $298,843 in attorney’s fees for prevailing on the cross-complaint as against Webcor.

            Webcor lost both the merits appeal and the appeal of the fee recovery.

            The appellate court determined that the fees could be claimed as costs, not having to be pled as damages so as to justify entitlement. It did not matter that ACCO had insurance coverage so that fees were paid by someone else did not mean fees were not “incurred.” (Staples v. Hoefke, 189 Cal.App.3d 1397, 1410 (1987).) The fee recovery was no “double recovery” in addition to the jury verdict because fees are costs, not damages.

            BLOG OBSERVATION—Keith Amelee and Lou Klein at Foley & Mansfield were the successful trial attorneys for ACCO. Co-contributor Mike was a fee expert in the lower court fee proceeding, where the trial judge issued an award with a minor discount from the fee request. On appeal, Margaret Johnson and Lou at Foley were the successful appellate attorneys before the First District. Congrats to the attorneys at Foley & Mansfield.

Costs, Deadlines: Where Matter Is Reversed On Appeal And Remanded, Clock Reset For Trial Court Costs Motion Depending On What Happens On Remand

40-Day Post-Remittitur Period Did Not Govern.

            In Mangine v. Ball, Case Nos. B285059/B286055 (2d Dist., Div. 7 March 25, 2019) (unpublished), tenant lost a case for failure to maintain her rental unit in line with building codes. The prevailing party filed for routine costs, with the trial court rejecting the tenant’s motion to tax costs and awarding $2,215 to the other side. Tenant prevailed, arguing that the costs memorandum was filed beyond the 40-day time limit from a remittitur to file for costs after there was a reversal on a prior appeal. Not so, said the 2/7 DCA panel. The reversal and remand reset a new clock to file for routine costs, which was dependent on what happened on remand. Guided by that deadline, the costs memorandum was timely filed.

Costs, Requests For Admissions: In Trip And Fall Case Resolved Against Plaintiff On Summary Judgment, Trial Court Correctly Denied “Proof of Costs” Sanctions For RFA Denials And Properly Taxed Costs To Defense To Some Degree

Mathematical Error In Costs Award Corrected, But Nonparty Could Not Be Added As Joint Obligor On Costs Award.

            Sailors v. City of Fresno, Case No. F075577 (5^th Dist. March 20, 2019) (unpublished) (there are two other unpublished consolidated cases, but the results are the same) involved a plaintiff suffering severe injuries in a trip and fall at the Fresno Convention and Entertainment Center, resulting in a suit against the City of Fresno for a dangerous property condition and against the owner/property manager for general negligence. All defendants prevailed on summary judgment motions based on the theory that the premises condition was trivial in nature, with defendants seeking significant “costs of proof” sanctions under CCP § 2033.420 based on RFA denials and also seeking routine costs. They all sought a total of $305,833.56, with close to $251,000 being on the RFA costs of proof request. The lower court denied the RFA costs of proof request, but it did award $50,314.95 in routine costs against plaintiffs and in favor of defendants.

            Plaintiff lost the merits appeal, the defense lost the appeal of the RFA costs of proof denial, and plaintiff won a small mathematical reduction in the routine costs award.

            The RFA costs of proof sanctions request was correctly denied because plaintiff did prove some requests or had a reasonable basis for denying them. Although summary judgment was granted against plaintiff, this did not mean there was a total absence of evidence but simply there was no sufficient evidence to raise a triable issue of fact. That distinction was critical in affirming that the RFA costs of proof request denial was no abuse of discretion.

            On the costs award, plaintiff argued that a nonparty was a joint obligor which should be responsible for the costs award. However, the Fifth District found no authority that a nonparty to the case or appeal could be held so responsible for the costs award. With that said, there was a small mathematical error such that the costs award was reduced to $48,065.41—with appellate courts frequently making such a change so as to end the case and not lead to an unnecessary remand.

Civil Rights, Costs: Some 998 Fee-Shifting Costs Stricken By Court Of Appeal In Nonfrivolous FEHA Case

2/8 DCA Agreed With Arave and Huerta In Reducing Costs Award.

            In Butts v. Bd. of Trustees of Cal. State Univ., Case No. B282452 (2d Dist., Div. 8 Mar. 13, 2019) (unpublished), FEHA plaintiff lost against defendant Cal. State Universities on FEHA claims, even after a reversal and remand where the loss occurred again. The lower court awarded costs of $64,063.81 in favor of the defense, some of which were shifted when plaintiff rejected defense CCP § 998 offers. On appeal, the 2/8 DCA affirmed some of the costs, but struck $38,276.22 in costs. Reason for striking costs: they were not allowable, even under section 998, because the FEHA claims were not determined to be frivolous in nature. The trial judge relied on Holman v. Altana Pharma US, Inc., 186 Cal.App.4^th 262, 281 (2010), but the Court of Appeal found Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 19 Cal.App.5th 525 (2018) and Huerta v. Kava Holdings, Inc., 29 Cal.App.5th 74, 84 (2018) more persuasive in determining that costs were not recoverable in this specific context.

COSTS, INTELLECTUAL PROPERTY: SCOTUS Decides That Litigation Expenses Are Not Recoverable By Prevailing Copyright Infringement Plaintiff Unless Covered By General Federal Costs Statutes

$12.8 Million Litigation Expense Award Remanded For A Re-Do.

       In Rimini Street, Inc. v. Oracle USA, Inc., No. 17-1625 (U.S. March 4, 2019), the U.S. Supreme Court considered whether a $12.8 million litigation expense award—inclusive of expert witness, e-discovery, and jury consulting expenses—was properly found by a district court to be a justifiable award of “full costs” under 17 U.S.C. Section 505 in favor of a prevailing plaintiff in a copyright infringement suit.  The Ninth Circuit had affirmed the expense award, but SCOTUS disagreed in the unanimous opinion authored by Justice Kavanaugh. The litigation expenses had to fall within one of six narrower categories specified in 28 U.S.C. Sections 1821 and 1920 given that the Copyright Act did not expressly allow for recovery of other expenses. Since many of the “big ticket” items likely fell outside the narrower categories, a remand was in order for the district judge to scale back the award in line with SCOTUS’ opinion.

Costs, Mediation: Co-Contributor Marc's Article On Cost-Shifting In Mediation Is In The January 29, 2019 Daily Journal

Mike & Marc Have Previously Posted About Berkeley Cement v. Regents Of The University of California.

    Co-contributor Marc's article entitled "Cost-shifting in mediation after Berkeley Cement ruling" appears today, in the January 29, 2019 Daily Journal. If you subscribe to the Daily Journal, then you can access the article on-line. Or you can read a short post dated January 17, 2019, on the California Mediation and Arbitration blog, and a post dated January 8, 2019 on the California Attorney's Fees blog.

Costs, Employment: Third Circuit Court Of Appeals Affirms $319,655.80 Costs Award Against Named FLSA Plaintiffs For ESI Vendor TIFF Conversion And Platform Loading Production Activities

Federal Appellate Court Dismisses Arguments That Costs Recovery Not Allowable Under FRCP Or FLSA, Or Was An Abuse of Discretion Under The Circumstances.

           This next case is a harbinger for risk advice which plaintiff litigators should provide to putative Fair Labor Standards Act (FLSA) plaintiff clients, because these clients could be liable for certain e-discovery vendor expenses of a substantial amount if the defense prevails, as the defense did in Camesi v. University of Pittsburgh Medical Center, Case Nos. 17-3476/18-1112 (3d Cir. Jan. 15, 2019) (nonprecedential).

            What happened here is that four named plaintiffs filed an FLSA collective action on behalf of another 2,800 unnamed plaintiffs for meal break violations, a case which was conditionally certified by the district court. Named plaintiffs then sought broad ESI production, with the district court entering an order to that effect. Later, after the defense complied through an ESI vendor who converted documents to TIFF and loaded the converted files onto the vendor’s platform for eventual production, the district court decertified the action, dismissing the unnamed plaintiffs’ claims without prejudice. Named plaintiffs then dismissed their claims in order to appeal the decertification order, an appeal the Third Circuit earlier dismissed due to lack of jurisdiction. Then, the defense sought to recover $319,655.80 in ESI vendor expenses as costs against the named plaintiffs, smartly requesting only a third of the ESI vendor expenses (with $300,000 encompassing copying charges and the remainder the ESI vendor direct expenses). The district court clerk taxed costs (in federal parlance, that means costs were allowed), with the district judge confirming this allowance. Named plaintiffs appealed to the Third Circuit with numerous challenges, all of which were rejected in the 2019 nonprecedential opinion. (In doing so, the federal appeals court relied on the reasoning in Kuznyetsov v. West Penn Allegheny Health System, Inc., 2014 WL 5393182 (W.D. Pa. Oct. 23, 2014).)

            First, named plaintiffs claimed that the costs were not recoverable under 28 U.S.C. §1920, which allows taxing of costs “where the copies are necessarily obtained for use in the case.” No, because the Third Circuit’s prior opinion in Race Tires America, Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012) does allow for recovery of these expenses, which the district judge awarded after a prior appeal remand to obtain more evidence to see if Race Tires allowed them. (Both Race Tires and the prior Camesi appeal decision were discussed in our March 28, 2016 post.) The costs were necessary to the case, since plaintiffs were the ones demanding the documents!

            Second, plaintiffs contended that defendants were not prevailing parties under FLSA. This argument did not itself prevail because FLSA does not address a prevailing defendant situation such that FRCP 54(d)(1) did allow for costs recovery of the subject expenses. The appeals court found the award was not violative of FLSA, because plaintiffs should be incentivized to carefully assess and not file meritless/marginal claims. Also, the Third Circuit followed the majority approach that the defense can prevail based upon a voluntary dismissal by unnamed plaintiffs. It further determined that there was nothing unfair about only assessing costs against the four named plaintiffs rather than unnamed plaintiffs too, because this would encourage named plaintiffs’ counsel to advise them, prefiling, of the risks associated should the defense later prevail (which would include a costs award against them).

            Third, the award was not an abuse of discretion. The evidence showed that the four named plaintiffs were not indigent and could bear the costs award (although we presume this will hurt). Beyond that, a district judge only permissively can deny costs based on the indigency/pocketbook factor—it is not mandatory to deny costs in this situation. No bad faith was shown by the defense, given that this side was only responding to the broad document production wanted by plaintiffs anyway.

            BLOG OBSERVATION—An interesting question is whether the result would be the same in a California state case alleging a FLSA collective action. We believe the answer may well be “yes.” Number 6 of our Top 25 decisions for 2018 was the 4/3 DCA’s published opinion in Quiles v. Parent, 28 Cal.App.5^th 100 (2018) (now final), which allowed recovery of costs to FLSA prevailing plaintiffs under FLSA even though California routine costs statutes would not permit costs recovery. In this area, Toshiba America Electronic Components, Inc. v. Superior Court, 124 Cal.App.4^th 762 (2004) held that CCP § 2031.280(b) (formerly § 2031(g)(1)) requires that the reasonable costs of ESI data translation into usable form must be borne by the demanding party. Given that California courts look to federal cases on e-discovery issues (see id. at 770; Vasquez v. Calif. School of Culinary Arts, Inc., 230 Cal.App.4^th 35, 42-43 (2014)), a good case can be made that the result in Camesi would allow recovery of ESI costs in certain respects by prevailing defendants.

Costs, Mediation: Fifth District Indicates, Quite Strongly, That Private Mediator Fees Are A Prime Candidate For Routine Costs Recovery In A Voluntary Mediation Situation

Court-Ordered Mediation Alone Should Not Determine If Costs Recoverable; However, Expert Witness Expenses Not Ordered By Lower Court Were Not Recoverable.

            The Fifth District, in Berkeley Cement, Inc. v. Regents of the University of California, Case Nos. F073455/F073586 (5^th Dist. Jan. 7, 2019) (partially published; expert fee costs discussion not published; mediation costs discussion published), confronted defense costs requests after it prevailed in front of a jury in a dispute over construction of a building on the Merced campus of the University of California. The trial judge awarded the defense $6,486.25 in expert witness fees for time spent taking their depositions and $15,590 for fees paid to mediators for a voluntary mediation agreed to by the parties.

            On appeal, the Fifth District deleted the expert witness fees costs, but affirmed the voluntary mediation expenses.

            In an unpublished discussion on the expert witness fees, the reviewing court could find no basis to sustain the costs award because this was not a court-ordered witness. (See, e.g., Ripley v. Pappadopoulos, 23 Cal.App.4^th 1616, 1624-1625 (1994); Baker-Hoey v. Lockheed Martin Corp., 111 Cal.App.4^th 592, 601-602 (2003).)

            The published discussion on the recoverability of voluntary mediation costs is significant, given that prior decisions only really dictated the recovery of court-ordered mediator fees. The Fifth District refused a categorical rejection of recovery of voluntary mediation costs, with expansive language indicating that mediation has become an accepted method of resolving cases in recent times. Otherwise, mediation costs could only be awarded in a case where $50,000 or less was in controversy—unnecessary line drawing in the ADR and modern litigation contexts. “We conclude mediation fees incurred for mediation that was not ordered by the court are not categorically nonrecoverable as ‘not reasonably necessary to the conduct of litigation.’ The question whether mediation fees should be awarded as costs in a particular matter must be determined based on the facts and circumstances of the particular action. [Plaintiff] does not contend the trial court erred in assessing the facts and circumstances of this case, when it made its determination that the mediation fees should be awarded.”

            BLOG OBSERVATION—Co-contributor Mike had the voluntary mediation costs issue pop up in a Stockton case, with the lower court determining that many reasons exist for voluntary mediation and with the mediation privilege making it difficult to determine if the mediation was truly reasonable and necessary. The Fifth District did not discuss this evidentiary complication, but its broad reasoning strongly suggests voluntary mediation costs should be recoverable in the absence of extenuating circumstances—Mike wish he had this case at an earlier point in time! But that demonstrates the importance of evolving jurisprudence.

Costs: Prevailing Party, Through Supplemental Declaration And Spreadsheet From Expert, Cured Prior Deficiencies And Garnered $4,000 For Amounts Actually Paid To Expert

Trial Court’s Second Chance To Prevailing Party Resulted In Costs Award.

            Once a prevailing party establishes that a cost item is recoverable (listed in CCP § 1033.5 or by statute, such as expert witness fees when a CCP § 998 shifting is triggered), the amount of the costs awarded is usually a discretionary call by the trial judge. If the initial costs paperwork is deficient, the trial judge can reject the costs request outright or allow for supplemental paperwork to be filed in order to cure deficiencies. The prevailing party was given a second chance in Cazden v. Expinoza, Case No. B285907 (2d Dist., Div. 4 Dec. 20, 2018) (unpublished), and that litigant made the most of it.

            Based on § 998 costs shifting, the prevailing party wanted $16,000 in expert witness costs. However, the litigant’s original papers were deficient because an attorney tried to authenticate and attest to the reasonableness of an expert’s work. (Again, this is similar to the problem confronted by recent courts in fee proceeding contexts, where clients or attorneys could not competently demonstrate work performed by others—see posts on Copenbarger [discussed in our October 20, 2018 and November 13, 2018 posts] and Eith [discussed in our December 19, 2018 post].) However, the trial judge allowed the costs claimant to file supplemental papers, with the litigant obviously having listened to the lower court’s directives.

The costs claimant filed a supplemental expert declaration with a spreadsheet, providing a road map for the work which was done. The trial judge granted $4,000 out of the $16,000 request, because claimant only paid expert a “capped” $4,000. The other side’s appeal did not change the result, given that it was not unreasonable for defense expert work to be “backloaded” toward the trial date and given that the supplemental information competently presented the expert work for the lower court’s consideration. Affirmed, rejecting 16 “oddities” (appellant’s term, not ours) in the process.

Costs: Defendant Winning One Dollar In Heavily Contested Case Was The Prevailing Party With Net Monetary Recovery For Purposes Of Routine Costs Award

Loser Provided No Authority That Pre-Litigation Payments Could Be Factored Into The Costs Calculus.       

Young Man Deposits Dollar Bill at Bank Teller's Window
    

            Defendant in a heavily contested contract case won $1 on its contract claim against a non-prevailing party. That was enough to justify an award of routine costs of the defendant because it received a net monetary judgment, said the appellate court in John Russo Industrial Sheet Metal v. City of L.A. Dept. of Airports, Case Nos. A150652/A150654 (1^st Dist., Div. 5 Dec. 18, 2018) (unpublished). Loser provided no authority for the proposition that pre-litigation money received from defendant should somehow be factored into the routine costs “prevailing party” analysis.

Costs: Order Awarding Or Taxing Costs After Voluntary Dismissal Without Prejudice Is Appealable, With 4/2 DCA Agreeing With 4/3 DCA In Split Of Opinion On Subject

However, Costs Award Against Plaintiff’s Counsel Was Void Because Routine Costs Not Normally Allowable Against Counsel.

            The 4/2 DCA, in Gassner v. Stasa, Case No. E068058 (4^th Dist., Div. 2 Dec. 17, 2018) (partially published), faced a situation where a trial judge awarded costs jointly and severally against a plaintiff and plaintiff’s counsel after a voluntary dismissal without prejudice. (The amount was only $2,698.91, but someone got riled.) The 4/2 DCA resolved a split in intermediate appellate thinking on whether a costs award or award taxing costs is appealable following a “without prejudice” voluntary dismissal. It had to confront Mon Chong Loong Trading Corp. v. Superior Court, 218 Cal.App.4^th 87, 92 (2013) [saying non-appealable] and Mesa Shopping Center East, LLC v. O Hill, 232 Cal.App.4^th 890, 897-899 (2014) [saying appealable, a 4/3 DCA opinion reviewed in our December 28, 2014 post]. Gassner agreed with Mesa Shopping Center, finding it was appealable. However, because routine costs could not be awarded against plaintiff’s counsel, the costs award was found void and reversed against counsel in an unpublished portion of the opinion.

Costs: Does FRCP 41(d) Allow For Recovery Of Attorney’s Fees As Costs When Plaintiff Previously Dismissed An Action Based On Claims Against The Same Defendant In A District Court?

Answer: Courts Are Split – Some Say No, Some Yes In The Court’s Discretion, And Others Say Yes If The Claims In The Original Suit Allowed For Fee Recovery.

            Federal Rule of Civil Procedure 41(d) provides: “If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court … may order the plaintiff to pay all or part of the costs of that previous action.”

            Fair enough, but then the real meaning of “costs” takes significance—does that include attorney’s fees? Well, the answer to the question at the federal appellate level is not uniform at all.

            Horowitz v. 148 South Emerson Associates, LLC, 888 F.3d 13, 24-26 (2d Cir. 2018) has a nice discussion on the issue. It nicely summarized the different approaches on the issue: (1) the Sixth Circuit says “no, never;” (2) the Eighth and Tenth Circuit have said “yes, in the discretion of the district court;” and (3) the Fourth, Fifth, and Seventh Circuits have on a hybrid approach basis said “yes, narrowly, but only if the statute serving as the basis for the original suit itself allows for fees recovery.” Horowitz itself lined with approach (2), which allows a district court to award fees under FRCP 41(d) in its discretion.

Consumer Statutes, Costs, Reasonableness Of Fees: 4/2 DCA Reverses Fee Award Under Song-Beverly Act Where Trial Judge Seemed To Base Award On Proportionality Of Fees To Modest Damages Award

Also, Denial Of Trial Transcript Expenses Reversed Because They Were Compensable Under Song-Beverly Act Costs/Fee-Shifting Provision.

            Although occurring in the civil rights context, we foresaw in our December 20, 2015 post on Kerkeles v. City of San Jose, 243 Cal.App.4^th 88, 102-104 (2015) that it would have much more significance in other substantive areas. Our prophecy has been borne out in a recent decision arising under Song-Beverly Act’s “lemon law.”

            Warren v. Kia Motors America, Inc., Case No. E068348 (4^th Dist., Div. 2 Dec. 12, 2018) (published) involved a situation where a plaintiff won a compensatory jury verdict of $17,455.57 in a “lemon law” case against defendant. (As an aside, the defendant made an invalid CCP § 998 offer of $12,500—and maybe more, but that was what rendered it ambiguous—plus $5,000 in fees, an offer which was rejected.) Then, plaintiff moved to recover attorney’s fees and expenses under the lemon law fees/costs-shifting statute, Civil Code section 1794(d). Plaintiff sought $526,582.89 in fees (a $351,055.26 lodestar plus a positive 1.5 multiplier) and $40,151.11 in costs ($5,882 being trial transcripts ordered by plaintiff’s attorneys). The lower court awarded plaintiff $115,848.24 in fees, applying a negative 33% multiplier, and $24,436.65 in costs (denying prejudgment interest and striking the trial transcript expenses).

            Plaintiff appealed, obtaining relief on appeal.

            With respect to costs, prejudgment interest was properly denied but it was error not to grant the $5,882 in trial transcripts. Even if this item was not allowable under the CCP routine costs provisions, Civil Code section 1794(d) defines “expenses” more broadly such that these costs were recoverable.

            That brought the Court of Appeal to the fees issue. Although not taking issue with a lot of the lower court’s reasoning, the appellate court found a flaw because it appeared that the trial judge was trying to make the fee award proportional to the modest compensatory award—something which was antithetical to the consumer statute at play with respect to a fees award. Given that a one-third discount was applied, Kerkeles required a more particularized explanation for this specific reduction. Also, the reviewing court rejected the idea that plaintiff’s consumer attorney’s fees must be compared to defense fees as far as hourly rates given the difference in billing arrangements and expertise. Reversed and remanded for a “re-do” and an award of trial transcript costs.

Employment, Costs: Appellate Court Directive That “The Parties To Bear Their Own Costs On Appeal” Does Not Preclude Award Of Appellate Fees

Directive Only Deals With Appellate Routine Costs, With Berman Hearing Fee-Shifting Provision Allowing For Recovery Of Appellate Fees For Prevailing Party Work.

            This case deals with a Berman hearing—an employee’s hearing before the California Labor Commissioner for unpaid wages. Employers gripe because, if a de novo trial is sought in the superior court, they must post an undertaking for the full amount of the award within a short time, they bear responsibility for de novo trial and potential appeals fees should they lose, and the employee can raise other claims not strictly within the Labor Commissioner demand. Well, this case also shows the risk of appealing an adverse Labor Commissioner award in employee’s favor—escalating fees of an astronomical nature. The whole dispute was over a “short” $300 difference in unpaid wages (we are not kidding) with employer fighting all along the way and eventually being assessed with attorney’s fees totaling $88,785, not to mention other statutory penalties and interest. (The appellate fee award of $57,420 was nearly 200 times the $300 amount.) Employers and their counsel need to pay attention to the result here, even though it was unpublished.

            In Stratton v. Beck, Case No. B287001 (2d Dist., Div. 4 Dec. 7, 2018) (unpublished), employee challenged a $300 “short” wage payment by an employer, winning $6,060.96 in the unpaid wages, liquidated damages, interest, and statutory penalties before the Labor Commissioner. Employer appealed and requested a trial de novo in the superior court, and the situation only got worse. The trial court awarded employee $6,778.85 plus $31,365 in attorney’s fees, with the fee determination affirmed in a prior published appellate decision. In doing so, the appellate court directed the parties “to bear their own costs of appeal in the interest of justice.” Employee then filed a motion to recoup appellate attorney’s fees, seeking a lodestar of $57,420 plus a 2.0 positive multiplier. The lower court granted an additional award of appellate fees of $57,420, the lodestar (but with no positive multiplier enhancement).

            Employer appealed the appellate fee award, with no change in result. He first argued that the prior appellate directive of “bearing own costs” means no fees could be awarded, but this was doomed because: (1) appellate fees under the Berman hearing fee shifting provision (Labor Code section 98.2(c)) are authorized for appellate work (Eicher v. Advanced Business Integrators, Inc., 151 Cal.App.4^th 1363, 1384 (2007); Nishiki v. Danko Meredith, APC, 25 Cal.App.5^th 883, 899-900 (2018)); and (2) CRC 8.278(d)(2) expressly provides costs do not include attorney’s fees with respect to appellate costs language—which is different than trial court “costs” language (Butler-Rupp v. Lourdeaux, 154 Cal.App.4^th 918, 925 (2007), found to be indistinguishable with respect to resolving this appellate cause).

            Although arguing that the lower court has discretion to deny fees to a matter which could have been a limited civil matter, employer’s problem was that he did not bring this issue up such that it was waived. As far as the amount of the award, the lower court did deny the multiplier request, so no abuse of discretion was shown; $300 became $89K-plus!

Costs, Probate, Section 998: Insurance Company Controlling Litigation Is De Facto Party Under Probate Code, Liable For Litigation Costs Under Rejected CCP § 998 Offer

Because Insurance Company Controls The Litigation, Court Looks Past "Legal Fiction" That Decedent's Estate Is The Party.

        Amanda Meleski was injured when Albert Hotlen ran a red light and collided with her vehicle. But by the time Mr. Hotlen could be served with a summons, he was dead. However, Mr. Hotlen had purchased a $100,000 policy from Allstate. Ms. Meleski offered to settle with Allstate for one dollar less than policy limits, to wit, for $99,999. Allstate rejected the offer, went to trial, and took a hit from the jury for $180,613.86. Ms. Meleski then sought to recover expert witness fees and other litigation costs, in the amount of $66,017.08, pursuant to section 998, having done better at trial than the offer that Allstate rejected. However, the trial court held that her recovery against Allstate was limited by the policy limit of $100,000. She appealed. Meleski v. Estate of Hotlen, Case No. C080023 (3rd Dist. Nov. 29, 2018) (published).   

        The appellate court refused to ignore the reality that Allstate controlled the litigation, adding: "Moreover, we find it manifestly unfair that section 998 could be employed by Allstate to recover costs from the plaintiff (which costs it would have no obligation to pay to the estate), but Allstate would have no corresponding responsibility to pay costs merely because it is not the named party." The Third District reversed the order denying an award of costs from Allstate, modifying the award to add $66,017.08 to the $100,000 in damages.

Costs: Losing Party Properly Saddled With Opposing Expert Review Costs And With Trial Technician/Exhibit Preparation Expenses For Visually Displaying Evidence At Trial

About $23,750 In Non-Taxed Costs Were At Issue.

            In Tsang v. Engelberg, Case No. A146379 (1^st Dist., Div. 3 Nov. 19, 2018) (unpublished), a losing plaintiff was not happy when the lower court denied her motion to tax costs to the winning party for about $23,750, which included review time by a medical/psychiatric expert and for trial technician/exhibit preparation expenses by outside persons visually displaying evidence at trial and operating the equipment during trial.

            The appellate court affirmed the lower’s court refusal to tax these costs.

            With respect to the expert review of documents to support his opinion, there was no abuse of discretion in awarding expenses for this time given it was necessary to develop the witness’s expert opinions. On the “trial technician” costs to visually display certain evidence and exhibits, American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton, 96 Cal.App.4^th 1017, 1057 (2002) was found persuasive in allowing for recovery of these expenses. It contrasted this to more mundane documents control and database charges which were found not recoverable in Science Applications Internat. Corp. vo Superior Court, 39 Cal.App.4^th 1095, 1104-1105 (1995).

Costs: $4,200 In Deposition Costs For Percipient “Higher Up” Witnesses No Abuse Of Discretion For Plaintiff Winning $587,000 In Damages After Bench Trial

Whether Costs Are Reasonable And Necessary Happen To Be Discretionary Calls Entrusted To The Trial Judge.

            Deposition related costs are allowable, CCP § 1033.5(a)(3)(A), but—as with all costs—must be reasonably necessary to the underlying litigation in the case, Bender v. County of Los Angeles, 217 Cal.App.4^th 968, 989-990 (2013). In Xeo International, Ltd. v. Fantasia Distribution, Inc., Case No. G055170 (4^th Dist., Div. 3 Nov 6, 2018) (unpublished), the two sides once had a business relationship, which soured, in the electronic cigarette and electronic hookah industry. Plaintiff won $587,000 in compensatory damages and fended off cross-claims by defendant. During the litigation, plaintiff took the depositions of three defense “higher ups” who were involved in percipient business discussions relating to the dispute. The lower court awarded deposition related costs of about $4,200. The defense challenge to the costs on appeal was not persuasive given that the necessity and reasonableness are questions entrusted to the discretion of the lower court. In this instance, it did not matter that one of the deponents was not called as a witness to trial, because litigants never know who may need to be called and the proof might be established through other witnesses. (Chaaban v. Wet Seal, Inc., 203 Cal.App.4^th 49, 57 (2012) [recovery of deposition costs does not depend on whether the deponent ultimately testifies at trial]; Lindy v. McChesney, 141 Cal. 351, 353 (1903) [it is frequently proper and necessary to take depositions, even though it may not be necessary to use the deponents’ testimony].) Justice Ikola authored the 3-0 affirming opinion.

Costs, Private Attorney General: 4/3 DCA Affirms $409,000 Fee Recovery And Additional Costs Recovery Even Though CEQA Petitioners Only Prevailed On One Out Of Close To Thirty Issues

Clarification Of Success Facto Under CCP § 1021.5 Is Sorely Needed In This Area.

            Our local 4/3 DCA in Protect Our Homes And Hills v. County of Orange (Yorba Linda Estates), Case No. G054631 (4^th Dist., Div. 3 Oct. 25, 2018) (unpublished) was an appeal from a situation where CEQA petitioners “partially” prevailed in an action—winning one greenhouse emission issue out of close to 30 issues raised—and with the lower court awarding them $409,000 in fees under the private attorney general statute and additional costs. Developer was not happy and appealed, but the appellate court affirmed in a panel decision authored by Justice Thompson.

            In the court below, the trial judge found that an award of pre-administrative hearing petition work—which he did allow—was faced with a split in authority between Beach Colony II v. California Coastal Comm’n, 166 Cal.App.3d 106 (1985) (no) and Edna Valley Watch v. County of San Luis Obispo, 197 Cal.App.4^th 1312, 1317 (2011) (yes). The appellate court sidestepped the conflict by finding that the rulings in these cases were dicta or distinguishable. Instead, it found that the Public Records Act was not administrative proceeding work but directly related to the CEQA litigation.

            The reviewing court then had to face whether administrative record preparation work had to be claimed through a costs memorandum, or could be raised instead through a fee motion. The appellate court concluded that it could be done by either method under CCP § 1094.5, and that the developer faced no prejudice by it being raised through a fee motion.

            Developer also challenged that the A/R costs were unjustified because developer/City had to do them because CEQA petitioners were recalcitrant. Although not really disagreeing, the reviewing court found that trial judges on a “case-by-case review” could determine if costs should be awarded even if the 60-day deadline for certification record had been or was close to blown by CEQA petitioners.

            Finally, that brought the court to the lack of success issue. Even though CEQA petitioners only prevailed on one issue, the appellate court found that the possible qualitative value of the greenhouse issue allowed the lower court discretion to award substantial fees even though losing other issues which were not found to be frivolous in nature.

            BLOG OBSERVATION—Co-contributor Mike was the lead appellate attorney on the case and has no “sour grapes” with the opinion, although he does disagree with some of the determinations. The most glaring one is that there needs to be clarification on what constitutes success in CEQA litigation when petitioners lose a huge amount of their issues. No “frivolousness” benchmark determines success, such that allowing trial judges to use this test means CEQA petitioners have no incentive to not adopt a “kitchen sink” approach to raising issues.   There is a good “issue by issue” test enunciated in the SOURCE state court case, which builds on federal Sierra Club cases on this contention. This success argument needs to be clarified given that some intermediary appellate decisions have admitted that the distinction between “claims,” “issues,” and “theories” in this area is confusing at best and has no elucidating analytics.

Class Action, Costs, Lodestar, Reasonableness Of Fees, Section 998: Trial Judge Properly Awarded Class $333,000 In Attorney’s Fees Out Of Requested $780,845.62

However, Lower Court Did Properly Award Voluntary Mediation Expenses And Expert Fees Incurred By The Class After Rejection Of A CCP § 998 Offer.

            In Diaz v. Grill Concepts Service, Inc., Case No. B284146 (2d Dist., Div. 2 Oct. 19, 2018) (unpublished), former restaurant employees of a Daily Grill brought a class action for being paid less than a “living wage” and eventually won a judgment of $300,751.31 after restaurant admitted a major degree of liability. The trial judge awarded the class $9,775 in voluntary mediation expenses and $7,497.80 in expert witness fees incurred by the class after restaurant rejected a CCP § 998 offer of $499,999 inclusive of fees and costs. The class moved to recoup $780,845.62 in attorney’s fees (which included a 1.5 multiplier) under CCP § 1021.5 and Labor Code § 218.5. However, the lower court only awarded $333,000 in fees, after reducing for duplication and block billing, consisting of a $222,000 lodestar augmented by a 1.5 multiplier. As a cross-check, the lower court found the fees reasonable because they equaled 71% of the benefits obtained by the class (which was well above a 33% contingency threshold).

            The restaurant appealed the costs awards, while the class appealed the fee award.

            Nothing changed on appeal.

          The lower court had discretion to determine the voluntary mediation expenses were “reasonably necessary” to the litigation, and no discretion was abused in this case. With respect to the expert witness fees, restaurant did reject a 998 offer which did not outstrip the judgment plus total fees and costs awarded (given the wording of the 998 offer). The fact that the 998 offer was structured as a firm number plus future fees/costs did not make the offer uncertain, given there is some “estimation uncertainty” always present in such offers. (Elite Show Services, Inc. v. Staffpro, Inc., 119 Cal.App.4^th 263, 266-270 (2004).)

            That shifted attention to the class fee award. Here is what the appellate court had to say in affirming the lower court’s ruling:

• The lower court did not have to accept, carte blanche, the requested fees numbers by a fee applicant, with the court making sufficiently clear why it made certain reductions based on duplication, block billing, and unreasonable hourly rates;
• Although opposing counsel’s work effort can be probative, it was not error to fail to compare defense work to the class work because the opposition work was not reviewed by the lower court for duplication, inefficiencies, and block billing;
• Use of a “blended rate” for class counsel is not per se impermissible and was not so in this case;
• Class counsel’s use of declarations from fellow “friends” did not have to be automatically credited but could be discounted based on bias; and
• Although the lower court “cross-checked” by the class benefits (not including the fee recovery), no sole methodology is proper; but, in any case, even if the benefits plus fee recovery was used, the fee recovery was still 41% of the total recovery—well above a 33% contingency or percentage-of-recovery measure.

Costs: Ship Vessel Owner’s Premiums For An Undertaking To Release Ship Under Custody Not Recoverable Under 28 U.S.C. § 1920 Or Other Statutory Authority

W.D. Wash. Local Rule To The Contrary Required Reversal Of Premium Costs To Prevailing Ship Vessel Owner.

            Bunker Holdings Ltd. v. Yang Ming Liberia Corp., No. 16-355539 (9th Cir. Oct. 11, 2018) (published) was a situation where a prevailing ship vessel owner in an admiralty/maritime case was awarded costs, under a W.D. Wash. Local rule, for premiums of an undertaking to keep in place a letter of undertaking that enabled the owner to secure release of the vessel (which had been arrested at the outset). The problem was that nothing in 28 U.S.C. § 1920 or any other statute allowed recovery for such costs, such that the local rule was unauthorized in nature. The Ninth Circuit did observe that this result was undesirable, but legislative action or SCOTUS action for admiralty/maritime cases was necessary to amend the governing statutes.

            BLOG OBSERVATION—The conclusion in this case is consistent with California state court cases which nullify superior court local rules or Judicial Council Rules of Court which are contrary to express contrary statutes.

Costs: Trial Judge’s Categorical Rejection Of Taxing Deposition and Trial/Other Travel Costs By Texas Counsel In California Case Required Reversal And A Restudy

Reimbursement Of Certain Expenses For Out-Of-State Counsel Can Be Entertained If Reasonably Necessary To The Litigation.

            Legendary Investors Group No. 1 f. Niemann, Case Nos. B281915 et al. (2d Dist., Div. 4 Oct. 9, 2018) (unpublished) was a situation in which the trial judge denied out-of-state (Texas) counsel’s costs for travel to deposition and trial/other proceedings (to the tune of over $74,000) in a Los Angeles action under the apparent perspective that these categorical costs were impermissible under the routine costs statute.

            Wrong, said the Court of Appeal, leading to a reversal and a remand. Code of Civil Procedure section 1033.5, subdivision (a)(3) does not limit reimbursement for deposition travel to travel by attorneys practicing in the court’s jurisdiction. (See, e.g., Thon v. Thompson, 29 Cal.App.4^th 1546, 1548 (1994); Chaaban v. Wet Seal, Inc., 203 Cal.App.4th 49, 59–60 (2012) [travel by California lawyers to out-of-state depositions]; Howard v. American National Fire Ins. Co., 187 Cal.App.4th 498, 541 (2010) [allowed meal expenses by out-of-state attorneys who traveled to depositions]; Seever v. Copley Press, Inc., 141 Cal.App.4^th 1550, 1560 (2006) [mileage expenses for San Diego attorneys driving to depositions in Los Angeles].) The same result attended to other expenses as long as they were reasonable and necessary to the litigation. So, the matter got remanded, although the appellate court put no strictures on how the trial judge should rule.

Allocation, Costs: Defendant Independent Insurance Adjustor Properly Awarded $8,148.47 In Routine Costs

Although Adjustor Was Represented Jointly With Two Nonprevailing Defendants, Costs Were Carefully Apportioned By Lower Court In Fashioning Costs Award.

            In Owens v. Bynum, Case No. A152090 (1^st Dist., Div. 3 Sept. 25, 2018) (unpublished), defendant independent insurance adjustor was awarded costs of $8,148.47 in routine costs against plaintiff after defendant won a demurrer and summary adjudication disposing of the case against him.   Two other nonprevailing defendants, represented by the same counsel as independent adjustor, settled. Adjustor sought $14,678.47 in costs but the trial court carefully apportioned costs, allocating some of the claimed ones to the settling defendants so that $8,148.47 were awarded to adjustor and against plaintiff.

            Plaintiff’s appeal of the costs award was unsuccessful.

            The appellate court rejected the contention that the costs were not “incurred” because the settling defendants might have paid adjustor’s costs. Nothing in CCP § 1033.5(c)(1) requires that the prevailing party must have personally incurred the obligations. (Litt v. Eisenhower Medical Center, 237 Cal.App.4^th 1217, 1222 (2015).) Otherwise, the apportionment by the trial court was fair given that the case was resolved against adjustor and the other defendants such that there was no double dip specter, which distinguished the award in this case from the result in Fennessy v. Deleuw-Cather Corp., 218 Cal.App.4^th3d 1192, 1196 (1990). Finally, plaintiff misunderstood that the costs did not have to be incurred solely for the benefit of the prevailing defendant, simply reasonably necessary to that litigant’s conduct in the litigation.   (Charton v. Harkey, 247 Cal.App.4^th 730, 744 (2016).)

Costs, Special Fee Shifting Statute: Prevailing Defendant In Civil Harassment Proceeding After Dismissal Of Petition For Restraining Orders Entitled To Claim Attorney’s Fees Through A Cost Memorandum

Costs Memorandum Or Fee Motion Were Proper Methods To Request Fee Recovery Under CCP § 527.6.

            In Tardaguila v. Conley, Case No. B279316 (2d Dist., Div. 2 Aug. 29, 2018) (unpublished), prevailing defendant was awarded $8,956.34 in attorney’s fees after plaintiff dismissed her petition for civil harassment restraining orders against defendant. Fees are allowable to the prevailing party under CCP § 527.6(s). Defendant claimed them through a costs memorandum, attaching redacted attorney billing records. The trial judge did strike expert witness expenses but did award $8,956.34 (out of a requested $9,996.34) in statutory attorney’s fees to defendant.

            Plaintiff appealed, claiming that a costs memorandum was an improper vehicle to seek fees, requiring a notice motion instead. The appellate court disagreed. Either way was acceptable. CCP § 1033.5 provides that allowable statutory fees are an allowable cost and may be fixed either by a noticed motion or upon application supported by affidavit made concurrently with a claim for other costs, with the costs memorandum satisfying that last option.

Costs, Section 998: Inability To Pay Does Not Prevent An Award Of Routine CCP § 1032 Costs, While Trial Judge’s Wholesale Denial Of Costs Required Evaluation Of Whether “Walkaway” CCP § 998 Offer Was In Good Faith

On Remand, Financial Condition Of Rejecting Offeree Can Be Considered In The Costs-Shifting Proceeding.

            LAOSD Asbestos Cases (Alfaro v. Colgate-Palmolive Co.), Case No. B281022 (2d Dist., Div. 4 Aug. 8, 2018) (published) involved the results of a costs-shifting proceeding in a case where a plaintiff lost her tort case in which she alleged developing mesothelioma as a result of exposure to asbestos contained in talcum powder products. (Talc cases, which have had varying results, are quite high on the trial and appellate radar screens right now.) Defendant Colgate moved to recover routine costs under CCP § 1032 and expert witness expenses under CCP § 998 after plaintiff rejected a pretrial settlement “walkaway” offer (dismissal of the suit in exchange for a waiver of costs). Given that talc cases are expert intensive, Colgate requested $311,543.86 in costs, consisting mainly of over $115,000 in expert witness fees and of over $140,000 in trial travel/lodging costs. The trial judge, based upon some submissions by plaintiff that she could not afford a hefty costs award, denied costs altogether because she did not have the ability to pay and that was an unjust “due process” violation under the circumstances.

            The 2/4 DCA reversed. It found, instead, that CCP § 1032 has no language indicating that ability to pay should be considered when it comes to awarding routine costs under section 1032, such that a reversal was necessary. Beyond that, although financial condition is a factor to consider in determining whether CCP § 998 should be awarded against a party in the lower court’s discretion, the trial judge refused to make a finding whether the offer was in good faith and the financial condition proof was somewhat sketchy such that a remand was directed to be had in this particular matter.

            BLOG OBSERVATION—One of Colgate’s successful attorneys on appeal is Louis C. Klein, an attorney at Foley & Mansfield, with whom both co-contributors Mike and Marc have worked (and Mike still does). Congratulations, Lou!

Allocation, Consumer Statutes, Costs: Consumer Plaintiff’s Win Against Car Assignee Did Require Remand Of Attorney’s Fees Decision To Allocate To The One Prevailing Claim Against Appealing Defendant And Required Rev. Of Expert Witness Fees As Costs

Appealing Defendant Picked Its Spots On Appeal, Awarded As Being Selective!

            This next case is an illustration where a non-prevailing defendant on peripheral claims appealed selectively on an adverse attorney’s fees and costs award, handsomely awarded by being discreet in what it appealed.

            In Ajis v. Foreman Financial, Inc., Case No. B280208 (2d Dist., Div. 1 July 31, 2018) (unpublished), a much more peripheral defendant sued as an assignee of a vehicle sales contract did some nice things on appeal which we commend to all of your readers in these types of limited situations.

            What happened here was that an assignee of a vehicle sales contract got caught up in various consumer and debt statute collection statutes mainly targeted against the assignor, but some of the debt collection statutes pointed at assignee even though assignee sought to unwind the whole assignment. Eventually, after a lot of litigation, a trial court (after a bench trial) entered most claims against the assignor but did enter one claim against assignee under the state Rosenthal Act even though the loan was not really finalized. The signed judgment reflected the limited recovery against assignee, with assignee liable for $800 in damages on the Rosenthal Act claim.  But, then, the real battle. Plaintiff sought $7,400 in expert witnesses’ fees and a little shy of $98,000 in attorney’s fees.

            Assignee opposed the motion that no recovery was allowable for expert witness costs and that it could only be liable for the Rosenthal Act reasonable attorney’s fees. The lower court found everything was interrelated, granting the expert witness fees and $ 89,437.50 in fees against assignee.

            Assignee appealed, prevailing in most respects. But, it did pick its spots carefully.

            The judgment against appealing assignee confirmed that it was only liable on the Rosenthal Act claim, with assignor liable on the car merchantability and related claims. With this conclusion, it was an abuse of discretion to not apportion fees against appealing defendant only as to the Rosenthal Act claim.   Apportionment was possible based on the billing submitted by plaintiff fee claimant. With respect to expert witness fees, nothing in the Rosenthal Act defines expert witness fees as costs such that they were not recoverable. (Civ. Code, § 1788.30(c). So, the expert witness costs award went POOF! and the fee award was reversed with apportionment directions—but because, in our view, appellant carefully selected its points for review which ultimately won.

Costs: Costs Request Filed Before Judicial Referee Properly Preserved The Issue, Even Though No Costs Memorandum Filed With Superior Court

Parties’ Choice Of Judicial Reference Prevailed.

           In Fitness International, LLC v. Monterey Property Associates Anaheim, LLC, Case No. D071910 (4^th Dist., Div. 1 July 25, 2018) (unpublished), the appellate court sustained a determination that the parties’ judicial reference stipulation was broad such that it allowed a costs request to be filed before the referee, dispending with the need to file a separate costs memorandum at the superior court level by the prevailing party. (Code Civ. Proc., § 664(a).)

Costs: Winning CEQA District Properly Awarded $21,160.46 As Costs For Preparation Of Certified Administrative Record Where District Took Over Efforts Due To Petitioner’s Delay

Award Was Reduced From $38,836.54 Request.

            After a CEQA petitioner lost a writ proceeding, respondent District sought to recoup a total of $38,836.54 in costs for preparing the certified administrative record, in timely fashion, based on delays on the part of the petitioner initially electing to prepare the record. The trial judge granted the costs request, reducing it down to $21,160.46.

            Petitioner’s appeal of the costs award in LandWatch San Luis Obispo County v. Cambria Community Services Dist., Case No. B281823 (2d Dist., Div. 6 June 28, 2018) (unpublished) did not change things. The main reason was that the record showed District acted properly in preparing the record, implicitly based on LandWatch’s unreasonable delays based on the 60-day record certification deadline faced by the agency.   (Coalition for Adequate Review v. City and County of San Francisco, 229 Cal.App.4^th 1043, 1055 (2014).) With respect to some specific items, the appellate court agreed that CourtCall fees to Orange County counsel for an appearance was a justifiable charge, not akin to a simple telephonic expense.

Allocation/Civil Rights/Costs/Reasonableness Of Fees: $158,880.50 Fee Award To Unruh Act Plntf Remanded For Review To Exclude Fees For A Co-Defendant’s Work, Limited Success In Light Of injunctive Modification, And Elimination Of Clerical Work Billing

Costs Award Affirmed, But Fee Award Remanded For A Further Re-Do.

             In Hernandez v. Starbucks Coffee Co., Case Nos. H042848/H043393 (6^th Dist. June 20, 2018) (unpublished), plaintiff successfully sued Starbucks for Unruh Act accessibility barrier discrimination at a San Jose store. Plaintiff was awarded statutory damages of $4,000 (although not winning all accessibility claims) and $158,880.50 in attorney’s fees (out of a requested $170,880.50) and a majority of its $8,260.39 in costs. Starbucks appealed.

            It raised a litany of challenges to both awards. A few resonated so as to require a remand.

            The appellate court found that costs associated with an unsuccessful summary judgment motion and oversized copies/scans of exhibits were properly found to be necessary to the litigation or useful to the trier of fact.

         With respect to fees, here is how things panned out:

• Given that the appellate court modified a permanent injunction, the matter had to be remanded to see if the “limited success” factor made a difference in the amount of the fee award;
• The fee award had to be reduced by $12,210 for work attributable to another settling defendant (with Starbucks doing a good job of identifying the work precisely, so that the appellate court itself could order this reduction);
• No apportionment was required because overlapping facts and legal theories were involved against Starbucks and the other defendant sued on a joint and several basis;
• No reduction was necessary for block billing because the legal descriptions were sufficient to identify the nature of the work;
• No reduction was required for interoffice conferencing, rejecting the notion that anything over 4% of total billings is per se unreasonable; and
• Reductions on remand did need to be made for purely clerical tasks.

Costs: Corporate Directors/Officers Testifying For Defendant Corporation, If Not Named Personally In A Lawsuit, Can Obtain Witness Fees From Nonprevailing Parties For 30(b)(6) Or Other Depositions

S.D. Cal. Local Rule So Allowed.

            In Stevens v. CoreLogic, Inc., No. 16-56089 (9^th Cir. June 20, 2018) (published), defendant won summary judgment in a case where plaintiff photographers alleged CoreLogic removed copyright management information from photographs and distributed them in such a state in violation of 17 U.S.C. § 1202(b)(1)-(3). CoreLogic filed a Bill of Costs seeking recovery of witness fees for its corporate employees’ attendances at 30(b)(6) and other depositions to support the corporate defendant’s position. The district judge allowed the fees as costs. Photographers appealed, but the Ninth Circuit affirmed. Although generally parties cannot recover witness fees for their own attendance, witness fee expenses to corporate directors/officers are allowable if no recovery is sought against officers individually. Southern District of California Local Rule 54.1(b)(4)(c) does allow for recoverability of such costs “if [the corporate officers] are not parties in their individual capacities.”

Costs, Special Fee Shifting Statute: Superior Court Properly Awarded General CCP § 1032 Prevailing Party Dismissal Routine Costs Totaling $1,010 In Dismissed, Transferred Small Claims Action

Appellant Argued Small Claims Special Statutory Prohibition Applied, But It Did Not.

            We once in a long while get a case involving a small claims matter, which the next case happens to be. These matters, in the fees and costs area, usually focus on whether general CCP routine costs provisions prevail or whether special small claims prohibitions apply.

            Geng v. Zhu, Case No. B280207 (2d Dist., Div. 8 May 29, 2018) (unpublished) is a situation where two parties (Zhu and Yan, respondents in the appeal) sued Geng (appellant in the appeal) in the small claims court, with Ms. Geng filing an unlimited jurisdiction civil case which moved the small claims case to the general jurisdiction court. After the small claims case was transferred, Ms. Geng voluntarily dismissed her general jurisdiction case against Zhu and Yan. After the dismissal was filed, Zhu and Yan sought $950 in filing/motion fees, $60 for service of process, and $15,606.25 in attorney’s fees. Ms. Geng moved to tax costs and opposed the fees motion. The trial court entered judgment in favor of Zhu and Yan for the first two items, totaling $1,010. Ms. Geng appealed.

            The question posed by the appeal was whether the general CCP § 1032 general costs statute controlled or whether CCP § 116.390(e) (a provision addressing allocation of costs when a small claims case is transferred to another court) controlled. Section 116.390(e) provides that if a small claims case is transferred, and the unlimited jurisdiction court “rules against the plaintiff in the action filed in that court, the court may award to the defendant in that action the costs incurred as a consequence of the transfer, including attorney’s fees and filing fees.”

            The trial court’s award was proper, because defendants prevailed in the general jurisdiction case based on the dismissal by Ms. Geng. (Code Civ. Proc., § 1032(a)(4), (b).) The general jurisdiction did not issue any ruling in the transferred small claims action such that the more particular section 116.390(e) did not apply.  

Costs, Section 998: Deposition Transcripts Ordered And Jury Fees Posted By Separate Defendants Are Awardable As Routine Costs.

Expert Witness Fee Requests Did Not Have To Be Scaled Down Due To Plaintiff’s Financial Condition.

            On the merits, Alexander v. Scripps Memorial Hospital La Jolla, Case No. D071001 (May 11, 2018 partially published; costs discussion not published) is a wrenching decision on a patient’s health care directives conflicting with providers’ opinions that the requested health care would be ineffective/harmful to the patient. The providers would not follow the directives, and they prevailed in a lawsuit over the conflict. The trial judge awarded about $160,000 in routine costs (including expert witness fees) based on the CCP routine costs provisions and a successful defense 998 offer.

            Except for a minor deduction of expert witness fees for one defendant, the costs award was affirmed on appeal. It was allowable to award costs for each defendant ordering its/his own deposition transcript and posting separate jury fees. The 998 offer to waive costs in return for a dismissal was not unreasonable and had value given that the case was expert intensive and plaintiff was on notice that costs could be substantial if the defense prevailed. It was also no abuse of discretion to scale down the expert witness fees (which were not that high per expert) for plaintiff’s financial situation given the fact that plaintiff was on notice that the defense costs could be quite high.

Costs, Employment, Reasonableness Of Fees: FEHA Award Of $44,437.50 In Attorney’s Fees And $3,411.37 In Costs Was Largely No Abuse of Discretion

Appellate Court Did Modify Judgment To Exclude UPS Services And Copy Of Amended Summons Expense Recoupment As Routine Costs.

            In Lepe v. Luft Enterprises, Case No. E067382 (4^th Dist., Div. 2 May 10, 2018) (unpublished), three plaintiffs won wage/hour awards against the defendant to the tune of $140,016. They then moved for fees and costs under FEHA as the prevailing parties. They requested $66,656.65 in fees and were awarded $44,437.50. The trial judge did award all of the requested costs of $3,411.37.

            Nothing changed much after the defense appeal was decided.

            The 4/2 DCA determined that the filing of the fee motion before judgment, although premature, did not retard its timeliness. As far as the reasonableness of the fees awarded, the defense failure to make specific challenges basically forfeited the argument. The trial judge did reduce the hourly rate claimed from $450 to $300, which showed discretion was exercised. Finally, with respect to costs, the appellate panel struck $130.96 from the judgment for inclusion of prohibited UPS and copy of amended summon expenses (CCP § 1033.5(b)(3)), although it did find that recovery of CourtCall and First Legal Same Day Filing services were proper.

Costs, Employment: Losing Plaintiff Properly Not Saddled With Routine Costs After Losing Age Discrimination Claim

Replacement By Younger Person Another Indicator To Prevent Routine Costs Award Under The Circumstances.

             By now, our readers will know that plaintiffs losing FEHA claims generally, unless the facts are austere, avoid attorney’s fees or costs even though they ultimately lost at pleading, summary judgment, or trial stages. (To be fair, only a general observation, but one we have seen it to be true over the last 10 years of blogging on fee issues.) The next case gives further credence to our general observation.

             In Brady v. Walt Disney Pictures, Case Nos. B275515/B27111 (2d Dist., Div. 1 May 9, 2018) (unpublished), plaintiff lost an age discrimination case against Disney in a summary judgment proceeding. The trial judge, however, did not grant Disney routine costs. That determination was affirmed on appeal. The reason was that the Williams case [our Leading Case No. 16] does not usually allow for fees or costs award unless losing plaintiff’s case was frivolous, unreasonable, or groundless either at the pleading or further prosecution stages. None of that occurred here. While the age discrimination case was not particularly strong, the case was not bereft of all proof, with replacement by a younger person being an indicator of age discrimination (a fact here)—so, in the end, no costs assessed against plaintiff.

Costs, Section 998: Plaintiff Obtaining Judgment In Landscaping Dispute Did Not Favorably Obtain It For 998 Costs-Shifting Purposes

Court-Ordered Mediation Costs Are Discretionary Costs Item For Award Purposes.

             Hariri v. Clark, Case No. A149402 (1^st Dist., Div. 2 May 8, 2018) (unpublished) is an interesting case showing how a CCP § 998 offer involving largely non-monetary features may not give rise to cost shifting based on the results actually obtained.

             What happened here was that plaintiff sued defendant neighbors for landscaping obstruction, with the trial judge issuing an injunction requiring defendants to trim or remove certain vegetation. (The certain emphasis obviously will be important for the end result.) Plaintiff made a CCP § 998 settlement offer and sought to recovery expert witness fees of $32,540.50 and costs for an unsuccessful mediation. The trial judge denied all of these costs requests, prompting an appeal by plaintiff.

             Nothing changed on appeal.

            The problem here was that the judgment awarded to plaintiff versus the request for landscaping requests in the litigation did not line up, with the appellate chart charting what relief was requested and judgment obtained to show that no one necessarily obtained a favorable result as far as landscaping results. That shifted concerns to the mediation costs; although the mediation was court-ordered, the lower court still had discretion to reimburse these costs, such that the decision to deny was no abuse of discretion.