CALIFORNIA ATTORNEY'S FEES

Deadlines: In Civil Harassment Restraining Matter, Lower Court Did Not Err By Awarding Further Fees Of $41,762.31 To Prevailing Petitioner After An Initial $1,000 Fee Award To Her At A Hearing Where Petitioner Was Representing Herself

Lower Court Did Not Lose Jurisdiction To Award Additional Fees.

            In George v. Hartman, Case Nos. H049735/H049886 (6^th Dist. Nov. 13, 2023) (unpublished), the court entered a civil harassment restraining order and granted petitioner $1,000 in attorney’s fees under CCP § 527.6(s) based on a request for that amount in a Judicial Council form, although noting that it would entertain a request for further fees by a separately noticed motion.  Petitioner did request additional fees of $41,762.31 in a subsequent motion, a request which was granted because it was unopposed.  Respondent appealed, arguing the lower court lost jurisdiction after awarding the initial $1,000 fee request.  The appellate court disagreed because a party can file additional or supplemental fee requests, later, depending on the status of the litigation and adherence to CRC deadlines.  (Faton v. Ahmedo, 236 Cal.App.4^th 1160, 1171 (2015).)

Appealability, Deadlines: Appeal Of Later Amended Judgment Including Fees And Costs Was Untimely With Respect To A Review Of The Merits Decision Reflected In the Original Judgment

The Later Amended Judgment Was No Substantial Modification To The Original Judgment.

            The next opinion, San Diego Innovation Center, LLC v. Skyriver Communications, Inc., Case No D080972 (4^th Dist., Div. 1 Aug. 25, 2023) (unpublished), supports a suggestion we have made in numerous past posts:  appeal an original judgment and amended judgments to make sure both merits and post-trial judgment issues can be reviewed.

            Appellant failed to timely appeal from an adverse, original judgment in which landlord recovered $486,489.55 damages in a breach of lease suit after appellant vacated early in the COVID-19 pandemic.  Later, landlord also obtained $1,479 in routine costs and $62,821 in contractual attorney’s fees, which was reflected in an amended judgment appealed from by appellant.

            Appellant’s challenges on appeal were to merits rulings under the original judgment; given that procedural posture, the appellate court dismissed the appeal.  The failure to timely appeal the original judgment was fatal, with the amended judgment adding costs and fees not constituting a substantial modification of the judgment to dictate otherwise.  (Torres v. City of San Diego, 154 Cal.App.4^th 214, 221-223 (2007).)

Deadlines: Where Motion To Compel Arbitration, Based On Accompanying Declarations, Had A Fee Request, It Authorized The Lower Court To Grant Fees Where Other Side Did Not Object To Them In Their Opposition Or At The Hearing

Inadequate Record Sealed The Result, But The Lesson Is To Make An Objection To A Fee Request Even If Inartfully Raised.

            The result in Barcenas v. 99 Cents Only Stores, LLC, Case No. B316898 (2d Dist., Div. 3 Feb. 17, 2023) (unpublished) is based on waiver, but it is a lesson to object to an attorney’s fees request even if made through declarations in support of a motion.

            The defense brought a motion to compel arbitration and, through declarations, sought attorney’s fees against the plaintiffs, although not mentioning it in their notice of motion per se but reiterating the request in a reply brief.  Plaintiffs did not oppose or apparently object at the motion to compel arbitration hearing.  The lower court awarded $6,759.65 in fees against plaintiffs as “a sanction.”  The appellate court affirmed because plaintiffs never objected to the fee request, with the panel believing that it was teed up enough through the notice of motion which incorporated the defense brief and declarations.  Moral of this opinion:  object or make a record that the fee request was inartfully or inadequately raised!

Appealability, Deadlines: Plaintiff’s Appeal Of An Attorney’s Fee Grant Motion Was Untimely, Resulting In A $64,350.30 Fees Order Standing As Viable Without Any Review

Appeal Was Electronically Received By The Court One Minute Late, Which Made It Untimely—So, Allow For Some Electronic Delay Transmission Issues When Filing An Appeal.

            Although unpublished, the lesson from McKenna v. Sony Pictures Entertainment, Case Nos. B304256/B310814 (2d Dist., Div. 5 Feb. 15, 2023) (unpublished) is to not push the 11:59 p.m. electronic filing deadline for superior court documents, especially with respect to a notice of appeal.  If the document is not received until 12:00 a.m. the next day, it could well be found to be untimely by a day.

            Plaintiff lost an attorney’s fees motion to the tune of $64,350.50 (inclusive of $9,427.50 for “fees on fees”) because the lower court determined defendant prevailed on a SLAPP motion as well as under Civil Code section 3344.1 (fee-shifting provision in a deceased personality name/likeness case involving deceased actor Christopher Jones).  Defendants served a notice of entry, which triggered a 60-day deadline from which to appeal the fee order.  Plaintiff encountered some electronic filing delays such that the appeal was file stamped at 12:00 a.m., one minute after the deadline such that the appeal was late by one day.  (Plaintiff visited Nationwide Legal at 11:42 p.m., but the electronic transmission issue did not get the document to the court—received by it--until 12:00 a.m., although the deadline for timely filing was 11:59 p.m. the day before, all in line with CRC 8.77.)

            The appellate court dismissed the appeal as untimely.  It did not believe that a slow connection was a failure in the electronic transmission for purposes of allowing for leniency under CRC 8.77(d).  The CRC deadline language talks about receiving the document by 11:59 p.m., not submitting by that time.  Beyond that, the notice of appeal was insufficient in failing to specify the order or judgment from which plaintiff was appealing. 

            Good electronic transmission lessons are taught in this opinion:  upshot, do not crowd electronic filing of a notice of appeal and check the right boxes in the Judicial Council form or specify the orders/judgments being appealed in a specially-crafted notice of appeal.

Deadlines, Retainer Agreements: Notwithstanding Whether Retainer Agreements Are Avoided, Quantum Meruit Statute Of Limitations Runs From Discharge

Appellate Court Follows Fracasse.

            The Law Firm of Kallis & Associates v. Padgett, Case No. H046063 (6^th Dist. Nov. 21, 2022) (unpublished) confirmed that, notwithstanding when a fee agreement is voided by the client, an attorney’s quantum meruit claim generally runs from the time that the law firm was discharged by the client, which was consistent with the retainer agreement in this case.  (Fracasse v. Brent, 6 Cal.3d 784,790, 792 (1972); Leighton v. Forster, 8 Cal.App.5^th 467, 480, 487 (2017).)

Deadlines, Probate: $212,089.25 In Fees To Sole Trust Beneficiary Under Probate Code Section 8804(c) Was Sustained Under Law Of The Case Doctrine

Also, Fee Motion Was Timely Filed Based On Notice of Entry of Judgment Containing Two Documents Comprising The Judgment.

            In Karamooz v. Karamooz, Case No. G060515 (4^th Dist., Div. 3 Nov. 14, 2022) (unpublished), authored by Justice Moore, sole trust beneficiary earlier had obtained a $212,089.25 attorney’s fees award under Probate Code section 8804(c), a determination affirmed by the appellate court in a prior opinion.  Section 8804(c) allows a court to award fees when a personal representative of an estate is removed for refusing or negligently failing to timely file an inventory and appraisal.  Personal representative appealed the fee award, but to no avail.

            First, the earlier appellate opinion was law of the case on the propriety of the fee award.  Beyond that, there was no requirement under the statutory provision that beneficiary had to show damage to the estate as an additional requirement. 

            Appellant also argued the motion was untimely, but that argument lacked merit because the judgment was comprised of two documents such that the clerk’s service of one did not start the clock ticking.  Instead, it only started when beneficiary served notice of entry of both documents, with the fee motion being timely from that date. 

Deadlines, Section 998: Plaintiff’s Acceptance Of A 998 Offer With Stipulated Fee Cap Took The Steam Out Of Later Attorney’s Fees Motion

Beyond That, The Motion Was Not Filed On 16-Court Days’ Required Notice.

            This case shows how a litigant and his attorney’s prior actions can have a dramatic impact on a later attempt to obtain more attorney’s fees through a noticed fee motion.

            In Baiocchi v. Ford Motor Co., Case No. G059143 (4th Dist., Div. 3 August 11, 2022) (unpublished) plaintiff accepted Ford’s CCP § 998 pretrial settlement offer for $27,000 for a car buyback, plus $10,000 in attorney’s fees, expenses, and costs (even though plaintiff had the option of moving for a different fee award by a motion addressed to the court, an option he did not elect although claiming otherwise later on).  Plaintiff accepted, negotiating a check which had the $10,000 capped fees in the amount of the check.  Then, after continued status conferences where plaintiff’s attorney sent a special appearance attorney despite the court wanting retained counsel to be present, and despite indications from the lower court and Ford that it wanted to see a noticed fee motion soon, plaintiff filed a Song-Beverly Act statutory motion for attorney’s fees of $179,481 (inclusive of a 1.5 multiplier) on less than the 16-court days’ required notice.  The lower court denied the motion based on lack of proper notice and on the ground that plaintiff had accepted the $10,000 fee feature of the statutory offer.

            The 4/3 DCA, in an opinion authored by Justice Goethals, affirmed.  The two bases relied on by the lower court resonated with the appellate court—especially given that plaintiff accepted the $10,000 attorney fee offer by negotiating the check. 

Deadlines, Judgment Enforcement: $38,115 In Attorney’s Fees For Prior Appeal And Judgment Enforcement Reversed As A Matter Of Law, Leaving About $26,055 In Fees Intact

Prior Appeal Fees Were Untimely Sought And Judgment Enforcement Request Related To A Judgment Without A Fees Clause Award.

            In Peng v. F.M. Tarbell Co., Case No. B317907 (2d Dist., Div. 2 July 25, 2022) (unpublished), a trial judge awarded an additional $64,170 in attorney’s fees relating to appeal expenses and judgment enforcement costs as against appellant.  The 2/2 DCA affirmed, but it modified the award to reflect that $38,115 had to be excluded as a matter of law.  Specifically, $14,715 related to work on a first appeal, costs which were not timely claimed under the 40-day post-remittitur deadline in light of the costs being requested in connection with the second appeal.  The “stricken” other $23,400 amount was infirm because it did not constitute judgment enforcement costs recoverable because the judgment did not contain a fee award at the time the enforcement costs were incurred.  (Conservatorship of McQueen, 59 Cal.4^th 602, 605, 608-610 (2014) [efforts by a party to oppose an appeal from an underlying judgment are not efforts undertaken to enforce the judgment but to defend it against reversal or modification].)

Appealability, Deadlines: Co-Defendant’s Failure To Appeal Judgment Or Fee Denial Order Was Fatal To Appellate Consideration Of The Fee Denial Challenge

Co-Defendant Could Not “Hitch” Onto Appeals By Other Defendants.

            In Greenfield LLC v. Kandeel, Case No. B297194 (2d Dist., Div. 5 June 14, 2022) (unpublished), a co-defendant was denied attorney’s fees and argued that denial was incorrect in an appellate case filed by other defendants.  The appellate court held it had no jurisdiction to consider co-defendant’s challenge because co-defendant did not appeal either the judgment or the fee denial order.  That party could not take advantage of appeal notices by other defendants in the overall appellate case. 

Appealability, Deadlines: County’s Failure To Appeal A Clerk-Served File Stamped Copy Of A Fee Order Within 60 Days Meant The Appeal Was Untimely

Decisions Show That Notice Of Entry Document Service Or File Stamped Order Service Will Trigger The 60 Days Appeal Deadline Time Period For Civil Unlimited Cases.

            This next case is a deadline warning for practitioners whose clients want to appeal a fee ruling, even one where the client is claiming the fees were not high enough.

            The appellant’s appeal of a case claiming a fee award was insufficient in amount was dismissed in County of Napa v. Wesner, Case No. A162794 (1^st Dist., Div. 1 June 8, 2022) (unpublished).  The reason was that the superior court clerk served a “file stamped” copy of the fee award on County (with no language indicating that anything else needed to be done such as preparation of a proposed order), with County not filing an appeal within 60 days after the order was served.  County argued that a “Notice of Entry” document had to be served relating to the order, but the appellate court rejected that argument because:  either a “Notice of Entry” document needs to be served or a file-stamped copy of an appealable order not bearing the “notice of entry” language.  (Russell v. Foglio, 160 Cal.App.4^th 653, 659-660 (2008).)  Further confusion did occur in this case because the trial court did allow the County to submit a further proposed judgment on the fee award, even though the file-stamped minute order contemplated no further action.  The appellate court determined that this new proposed judgment did not restart the deadline periods because the file-stamped order which was served triggered the 60-day period.  (Laraway v. Pasadena Unified School Dist., 98 Cal.App.4^th 579, 583 (2002).)  Appeal of the fee award dismissed on the jurisdictional ground of not timely appealing.

Deadlines, SLAPP: Successful SLAPPing Defendants’ Award Of $33,120 In Attorney Fees And $91.85 In Costs Reversed On Appeal Due To Trial Court’s Flawed Legal Analysis In Determining Deadline For Fees/Costs Motion

Holidays Did Not Stop The Clock On Defendants’ Deadline And Code Civ. Proc., § 664.5 Does Not Govern When The Clock Begins Under Rule 8.104.

            In Tye v. Papp, Case No. E076523 (4^th Dist., Div. 2 May 9, 2022) (unpublished), defendants were awarded $33,120 in attorney fees and $91.85 in costs under Code Civ. Proc. section 425.16 after the trial court dismissed the entire action based on Defendants' successful anti-SLAPP motion.  On appeal, Plaintiff argued that the trial court lacked jurisdiction to rule on the fees motion, that defendants’ fees/costs motion was untimely, and that the amount awarded constituted an abuse of discretion.

            Plaintiff's jurisdictional argument failed because there are exceptions to the general rule that a trial court lacks jurisdiction to conduct further proceedings as to a party it has dismissed from an action. In this case, the exception was the requirement that the trial court determine and enforce defendants’ collateral statutory rights (e.g. motions for fees/costs). (Shisler v. Sanfer Sports Cars, Inc. 167 Cal.App.4^th 1, 7 (2008); Pittman v. Beck Park Apartments Ltd., 20 Cal.App.5^th 1009, 1022 (2018).) 

            As to the timeliness issue, however, the 4/2 DCA determined that the trial court’s legal analysis concerning the deadline for defendants’ fees/costs motion was erroneous.  Plaintiff provided a proof of service indicating defendants were served with a notice of entry of judgment by mail.  This service started the clock on defendants’ 60-day deadline for filing their fees/costs motion, plus five additional days for service by mail. (California Rules of Court, Rules 3.1702(b) and 8.104(a)(1)(B).) However, defendants – who claimed to have not been served with the notice of entry of judgment – exceeded this 65-day window by more than two weeks. Nonetheless, the trial court determined defendants’ motion was timely under rule 8.104(a)(1)(B) based on its findings that none of the days from March 17, 2020 to May 31, 2020 counted toward the 60-day window because they had been declared holidays due to the COVID-19 pandemic, and on its holding that the notice of entry of judgment was invalid because plaintiff did not comply with Code Civ. Proc., § 664.5(a) requirement that he file with the trial court the original notice of entry of judgment together with the proof of service.  First, the appellate panel found, holidays do not stop the clock on filing deadlines and generally only affect a filing deadline when the deadline falls on a holiday. (Code Civ. Proc., §§ 12, 12a(a).) Second, the panel found that § 664.5 does not govern when the 60-day window begins, and rule 8.104 does not incorporate § 664.5’s requirements.  As a result, the 4/2 DCA reversed and remanded for additional proceedings to determine whether defendants were served with the notice of entry of judgment, and, if so, whether their motion was timely.

            Finally, because the panel reversed the award and remanded for additional proceedings on the timeliness issue, it found plaintiff’s abuse of discretion claim not ripe for review.

Costs, Deadlines, Requests For Admission, Section 998: 2/8 DCA Affirms Denial Of Costs Of Proof Sanctions And Untimely Fee Request, Sustains Some Costs Despite A Costs Memo Verification, And Reversed Expert Fee Award Based On Invalidity Of 998 Offer

Panoply Of Issues Addressed In This One.

            In Bogdan v. Polak, Case Nos. B306264/B309780 (2d Dist., Div. 8 Apr. 6, 2022) (unpublished), landlord won a gnarly retaliatory eviction lawsuit against tenant based on some nonsuits and an eventual jury trial.  In postjudgment proceedings, the lower court denied landlord’s attorney’s fees request as untimely, awarded some routine costs even though landlord failed to verify the costs memorandum, awarded expert witness fees under a CCP § 998 offer to landlord, and refused a costs-of-proof sanctions request for RFA denials.

            Everything was affirmed by the appellate court, except for a reversal of the expert witness award.

            Landlord’s fee motion was untimely; despite landlord’s argument that more time was allowed based on specific emergency orders during the pandemic, the appellate court found that those orders only allowed for “grace” if the litigant had difficulty filing documents, which it did on other items during the COVID-19 crisis.  The denial of tenant’s motion to tax costs was correct because attaching a costs memorandum verification is not jurisdictional and landlord substantially complied with the requirements.   However, the expert witness costs award was overturned because the CCP § 998 offer conditioned entry of any judgment on the offering party giving additional authority for the entry, which made the offer conditional and invalid.  Finally, no costs-of-proof sanctions could be awarded because the requesting party provided a table of RFAs, answers, and trial proof, but—alas!—did not provide the record citations to support the argument.

Deadlines, Equity: Blowing Attorney’s Fees Deadline Was Affirmed Under CCP § 473 Prong

Mandatory Prong Was Not Available, But Lower Court Could Discretionarily Entertain.

            In Byron v. McCray, Case No. B306599 (2d Dist., Div. 7 Feb. 14, 2022) (unpublished), an attorney for a prevailing party fell on the sword and brought a CCP § 473 motion to recover fees based on not filing for fees in timely manner, which was eventually granted in excess of $85,000.  The adverse party appealed, but to no avail.  Although agreeing that the section 473 mandatory provision did not apply, the lower court’s discretionary award under section 473 was in play.  Miscounting or inadvertence by counsel is a basis to grant relief under section 473 or the fee motion extension deadline default under CRC 3.1702(d).  Given the lack of prejudice to the opposing party, the granting of relief and fee award was no abuse of discretion.

Deadlines: Prevailing Parties In Mandate Proceeding Untimely Filed Their Motion For Attorney’s Fees

Order Granting Writ Petition Was A Final Judgment, Not Impacted By A Future Writ Return.

            Union members successfully obtained a writ of mandate order by which the lower court directed vacating a Union board election in Wallace v. Alameda County Management Employees Assn., Case No. A162044 (1^st Dist., Div. 5 Jan. 25, 2022) (unpublished).  Respondents filed a return to the writ, stating a new election had been held in compliance with the court’s order.  More than 180 days after the order granting the writ, prevailing parties moved for CCP § 1021.5 attorney’s fees, boldly declaring that they had achieved complete success and full remedy in the action.  The lower court denied the fee request as being untimely.

            The 1/5 DCA affirmed.  The writ grant order was a final judgment for appeal purposes, even if not accompanied by a separate final judgment.  (Public Defenders’ Organization v. County of Riverside, 106 Cal.App.4^th 1403, 1409 (2003).)  Additional proceedings, such as a return on the writ, did not change the finality of the writ order.  (Los Angeles Internat. Charter High School v. L.A. Unified School Dist., 209 Cal.App.4^th 1348, 1354-1355 (2012).)  With respect to the argument that this was just an “interim” fee request, that was dispatched by prevailing parties’ pronouncement in their fee motion that they had achieved complete success in the matter.

Deadlines: Nonprevailing Parties’ Failure To File A Timely Motion To Tax Costs After Entry Of Voluntarily Dismissal Was Not Excused Under CCP § 473

Case Law Was Not Ambiguous That No Entry of Judgment Was Needed When The Court Clerk Served A Notice Of Voluntary Dismissal.

            Tom v. Live Nation Entertainment, Inc., Case No. B308200 (2d Dist., Div. 7 Jan. 19, 2022) (unpublished) should remind all litigators to timely file a motion to tax costs, even prematurely doing so as to avoid a waiver of challenging costs.  What happened here is that plaintiffs voluntarily dismissed their lawsuit given a summary judgment tentative against them, with the clerk providing notice of the dismissal to the parties.  Thinking that there was a need for a formal judgment of dismissal, plaintiffs’ attorney did not timely file a motion to tax costs 15 days after the dismissal under CRC 3.1700(b)(1).  She filed a CCP § 473 motion for relief, which was denied by the lower court.  The 2/7 DCA affirmed.  Fries v. Rite Aid Corp., 173 Cal.App.4^th 182 (2009) established that no judgment of dismissal was required after a notice of entry of voluntary dismissal was served when it came to the running of the 15-day deadline.  Attorney admitted she should have done some more research, and the appellate court found that her excuse was not reasonable. 

Deadlines, SLAPP: SLAPP Defendants Must File A Formal Costs Memorandum Or Fee Motion After Plaintiff Voluntarily Dismisses Action In Order To Claim SLAPP Fees

Failure To File Was Dispositive To Majority Opinion; Dissent Believed That The Fee Entitlement Request In The SLAPP Motion Papers Properly Teed Up The Issue.

            Over a dissent, a majority of an appellate court panel in Catlin Ins. Co., Inc. v. Danko Meredith Law Firm, Inc., Case No. A160358 (1^st Dist., Div. 4 Jan. 11, 2022) (published) decided that SLAPP defendants had to file a costs memorandum or a fee motion to recover prevailing party fees after a plaintiff voluntarily dismissed the entire action rather than rely upon a fee entitlement request in the SLAPP merits papers which the lower court determined to be moot.  The lower court did indicate that it would entertain a post-dismissal request, but the SLAPP defendants did not do so.  That was a mistake, according to the majority.  So, the upshot here is that SLAPP defendants need to file a costs memorandum or fee request for purposes of preserving fee entitlement following a voluntary dismissal.  The dissent opined that the fee entitlement was properly “teed up” in the moving papers on the merits, such that the lower court should have ruled on it and the entitlement request. 

Deadlines, Judgment Enforcement, SLAPP, Special Fee Shifting Statutes: Where Trial Court Correctly Determined Reimbursement Of Fees/Costs Sought By Prevailing SLAPP Defendant Were For Judgment Enforcement, Not Appellate Fees, Motion Was Timely Filed

Distinction Between Enforcement Fees And Appellate Fees Set Forth In McQueen Governed.

            In Laue v. Ortiz, Case No. H047475 (6^th Dist., January 7, 2022) (unpublished), defendant successfully SLAPPed plaintiff’s complaint and was awarded fees and costs as mandated under Code Civ. Proc. § 425.16(c)(1) – the anti-SLAPP fee shifting provision.  After unsuccessfully appealing the order granting defendant’s anti-SLAPP motion and having his appeal of the fees/costs award dismissed as a nonappealable order, plaintiff filed an unsuccessful motion in the trial court to set aside the order granting defendant’s anti-SLAPP motion and awarding defendant fees/costs.  In its order denying the set aside motion, the trial court awarded further attorney fees and costs to defendant. Plaintiff appealed the order and defendant moved to dismiss the appeal – a motion denied as moot when plaintiff filed an abandonment of his appeal.

            More than 60 days later, defendant moved in the trial court, under Code Civ. Proc. §§ 425.16(c)(1) (anti-SLAPP) and 685.040 (judgment enforcement) for reimbursement of the attorney fees she incurred in connection with plaintiff’s abandoned appeal. Plaintiff opposed – claiming defendant was mischaracterizing the fees as being incurred in judgment enforcement, which provides for a two-year deadline from the date costs were incurred, because she had missed the deadlines under California Rules of Court for seeking fees/costs properly categorized as appellate fees/costs. The trial court disagreed – determining the fees to be properly categorized as judgment enforcement – and granted defendant’s motion. 

            Plaintiff appealed – arguing that defendant’s fee motion was for appellate fees/costs and therefore not timely.  However, the Sixth District concluded that the trial court was correct in its determination and affirmed. As set forth in Conservatorship of McQueen, 59 Cal.4th 602 (2014) [discussed in our July 11, 2014 post], when a fee-shifting statute authorizes the award of attorney fees, fees incurred in enforcement of the judgment – such as defending the judgment from attack – are recoverable under section 685.040.  Further, appellate fees are those incurred on direct appeal from the judgment at issue. (McQueen, 59 Cal.4^th at p. 610.) Here, although the fees/costs were incurred on appeal, they were not incurred on direct appeal from the judgment.

Deadlines: Plaintiff’s Failure To Timely Request Fees/Costs After CCP § 998 Acceptance Means The Request Was Waived

Lack of Diligence Was the End Conclusion Of This Matter.

            In Frye v. The Legends Golf Club, LLC, Case No. E075191 (4^th Dist., Div. 2 Dec. 6, 2021) (unpublished), the appellate court colorfully led off this way: “A trial court’s award of contractual attorney fees and costs is not like a stock dividend—you must request it in a timely and appropriate manner.”  Well, the plaintiff here never managed to do that.  After accepting a section 998 offer which preserved the ability to move for fees, and after rolling OSC re dismissal requests on numerous occasions, the trial judge finally dismissed the case before any fee motion could be resolved.  That result was affirmed on appeal.  Plaintiff could not show any diligence in moving for fees, getting extension after extension but not properly filing the fee request.  This type of conduct led to the conclusion that no fee request was still in play for plaintiff. 

Appealability, Costs, Deadlines: $10,800 Costs Recovery To Certain Defendants After Plaintiff Dismissed Case Without Prejudice And Refiled In Texas Was Not Erroneous

4/3 DCA Sides With The View That A Costs Award Entered After A Voluntary, Without Prejudice Dismissal Is Appealable.

            In Thomas v. St. Joseph Health System, Case No. G059408 (4^th Dist., Div. 3 Oct. 20, 2021) (unpublished), plaintiff doctor sued certain health care defendants in Orange County Superior Court for interference/unfair competition.  Certain defendants gained a tentative ruling by which a motion to quash based on lack of personal jurisdiction was going to be set for a final hearing, based on the notion that the case belonged in Texas.  (The lower court had allowed plaintiff to take jurisdictional-directed depositions in both California and Texas in order to oppose the motions to quash.)  Before that hearing could be held, plaintiff filed a voluntary, without prejudice dismissal and later refiled the case in Texas.  Defendants filed a costs memorandum, with the trial judge awarding $10,800 to defendants and denying a motion to strike/tax costs.  Plaintiff appealed.  The costs order was affirmed, in a 3-0 opinion authored by Orange County Superior Court Judge Linda Marks, sitting by assignment.

            In a footnote, the 4/3 DCA panel observed that there is a split in authority on whether a costs order entered after a voluntary dismissal without prejudice is an appealable order.  (Compare Gassner v. Stasa, 30 Cal.App.5^th 346, 351-355 (2018) [is] with Monn Chong Loong Trading Corp. v. Superior Court, 218 Cal.App.4^th 87, 92 (2013) [isn’t, but can be treated as a discretionary petition for writ of mandate].)  The panel sided with Gassner, but also indicated it would have reviewed it under the mandate petition alternative.

            Plaintiff argued that defendants filed the costs memorandum 9 days too late based on the 15-day deadline, but that failed because no notice of entry of dismissal was served such that the longer 180-day rule applied.

            Next, plaintiff contended that the pendency of the case in Texas meant that there was no prevailing party for costs purposes.  Not so, said the appellate court.  CCP § 1032(a)(4) allows costs to “a defendant in whose favor a dismissal is entered,” with a dictionary definition of “in favor of” supporting the position that defendants had prevailed notwithstanding the pendency of the Texas action.  (The analysis likely would have been different if attorney’s fees were involved, but the result was different for costs.)

            Plaintiff then suggested that defendant needed to file the customary Costs Worksheet, but the appellate court observed that the only initial required pleading is the costs memorandum itself (CRC, rule 3.1700(a)(1)), although it is a good idea to file the Worksheet.

            The amount of costs, mainly for in-state and Texas travel deposition expenses by counsel, were reasonable, with the fact that plaintiff’s counsel’s travel costs were $450 less not altering the result—costs do not have to be the lowest possible for purposes of reasonableness.  (Landwatch San Luis Obispo County v. Cambria Community Services Dist., 25 Cal.App.5^th 638, 646 (2018).)

Appealability, Deadlines, Family Law: Ex-Husband’s Appeals Of Postjudgment Fee Orders Doomed By Untimeliness Of Appeal On One Order And Lack of Merit On The Other Two.

Pay Attention to Appellate Deadlines, If You Want To Preserve Challenges.

            In Marriage of Mhanna and Hage, Case Nos. H045078 et al. (6^th Dist. Sept. 24, 2021) (unpublished), ex-husband challenged three attorney fees orders: (1) a first order awarding fees to ex-wife under Family Code section 271 and 2030 to the tune of $80,000; (2) a second order denying his motion to set aside the fee order; and (3) an order to enforce the fee order through a QDRO procedure.  He did not win any of his challenges.  With respect to the first order, the 271 sanctions order was appealable, and he blew the longest 180-day deadline in which to appeal. He argued that the appeal was extended based on the denied set aside motion, but no authorities were provided to support that motion and, even if it was proper, he blew the 90-day deadline after that motion was denied.  On the second order, husband provided no adequate record for review, and he was given enough time to prosecute for due process purposes.  On the third order, the QDRO request was ultimately denied such that he was not aggrieved from what happened before.

Deadlines: Where Reverse Validation Action Had A 30-Day Appeal Deadline, That Deadline Governed Fee Motion Filing Despite More General Lengthier Deadlines

CCP § 1021.5’s Fee Claimant Motion Was Untimely.

            Sometimes, the context of a suit determines when a fee motion needs to be filed.  Central Delta Water Agency v. Dept. of Water Resources, Case Nos. C078249 et al. (3d Dist. Sept. 22, 2021) (published) reminds practitioners in a reverse validation case—even where more claims are at issue, but the gist is a reverse validation matter—that a potential fee claimant has 30 days, not other lengthier deadlines, to file a fee motion given the short reverse validation 30 day appeal period. 

Deadlines, Substantiation Of Reasonableness Of Fees: Party Winning Usurious Note Dispute Was Properly Awarded $318,400.50 In Contractual Attorney’s Fees

Filing An Appeal Did Not Stay Fee Motion Determination Absent A Stipulation, With Petitioning Attorneys Doing A Commendable Job Of Supporting The Fee Request.

            This next case, Korchemny v. Piterman, Case Nos. A155483 et al. (1^st Dist., Div. 2 Aug. 27, 2021 [unpublished]; certified for publication on September 17, 2021), demonstrates how a winning party did an exemplary job of supporting their fee petition before the lower tribunal.

            Winning party won a usurious note dispute where there was a contractual “prevailing party” fess clause.  That party moved for attorney’s fees of $318,730.50, with the judge awarding $318,400.50 after minor deductions.  The losing party appealed, to no avail. 

            First, loser argued that the appeal stayed a determination of any fee motion.  Wrong, wrong, as we have posted on before – this is embracing a collateral issue which is not forestalled by a merits appeal.  (Bankes v. Lucas, 9 Cal.App.4^th 365, 368-369 (1992).)

            Then, on the merits of the fee award, this decision shows how a good fee petition should be structured, with the lower and appellate courts digging it: (1) submitting detailed billing records; (2) submitting a detailed declaration by the lead attorney; (3) allocating work between certain issues; and (4) detailing why work with another party was compensable under a joint strategy rubric.  Not to mention that the loser’s tenacious litigation was a factor to justify awarding the close-to-total-request ask by the winner.

Costs, Deadlines, Experts, Section 998: 4/2 DCA Dismisses Defendants’ Cross-Appeal Of Trial Court’s Order Granting Plaintiff’s Motion To Tax Majority Of $139,951.97 In Costs And Fees Sought By Defendants Under § 998

Defendants’ Cross-Appeal Was Untimely, And A Separate Appeal, Not A Cross-Appeal, Was Required For Challenging Trial Court’s Order As It Related To Defendants’ Request For Expert Witness Fees.

            In Ramirez v. Barajas, Case No. E071558 (4^th Dist., Div. 2 September 13, 2021) (unpublished), personal injury plaintiff, suing defendants for $1.4 million in damages, rejected defendants’ Code Civ. Proc., § 998 settlement offer of $350,000.  After plaintiff failed to beat that offer at trial (being awarded only $58,311.77, a result plaintiff appealed), defendants moved, under § 998, for costs and fees of $139,951.97 – which included $111,74.88 in expert witness fees.  However, because the trial court found defendants’ request to be deficient in that it failed to identify the date costs were incurred – whether pre or post-offer – it granted in its entirety plaintiff’s motion to tax and awarded defendants only $9,284.39 in ordinary litigation costs. 

            Defendants cross-appealed, but the 4/2 DCA dismissed their cross-appeal due to lack of jurisdiction. 

            First, defendants’ cross-appeal was untimely.  Under California Rules of Court, Rule 8.108(g), the deadline for the filing of defendants’ cross-appeal was within 20 days of the superior court serving them with notice of plaintiff’s appeal.  Defendants filed their notice of cross-appeal 21 days too late.

            Second, plaintiff’s notice of appeal from the judgment did not create appellate jurisdiction over the trial court’s ruling on defendants’ request for expert witness fees under § 998 – which accounted for the majority of fees sought by defendants.  A cross-appeal may challenge only the same judgment challenged by the underlying appeal, and “[a]n award of expert witness fees [under] section 998 is not incidental to the judgment but is instead a separately litigated issue” requiring a separate notice of appeal. (Fish v. Guevara, 12 Cal.App.4th 142, 148 (1993).)

Deadlines: Service Of Notice Of Ruling On Post-Trial Motions Did Not Trigger Shorter Post-Trial Motion Appeal Period For Purposes Of Shortening The 180-Day Longest Period To File An Attorney’s Fees Motion

Numerous CRC Provisions And Cases Established The Proper Conclusion.

            We thank the 2/2 DCA panel in Gallop v. Duval, Case No. B308531 (2d Dist., Div. 2 Sept. 2, 2021) (unpublished) for clarifying the deadlines which apply to timely filing of an attorney’s fees motion when posttrial motions have been denied.  Prevailing party filed an attorney’s fees motion which was denied as untimely because it was not made 30 days after notice of the ruling denying a posttrial motion was served.  However,  the fee motion was timely if the longer 180-day period was used assuming that the service of the notice of ruling was not a proper service of “an order denying the [posttrial] motion or a notice of entry of that order” for purposes of CRC, Rule 8.108.  The problem is that the other side only served a notice of ruling on the posttrial motions, not a service of a copy of the actual order or a notice of entry of that order, with the notice of entry stating “Notice of Entry” and attaching a file-stamped copy of the order.  The fee denial on untimeliness was reversed for a merits determination based on the failure to trigger a shorter appeal period within which to file the fees motion. 

Costs, Deadlines, Fee Clause Interpretation, Lodestar: L.A. Groundwater Case Fee And Costs Awards Remanded For A Revisit By The Fifth District

Variety Of Costs, Fee Entitlement, And Lodestar Issues Explored In This Unpublished Opinion.

            Antelope Valley Groundwater Cases, Case No. F083138 (5^th Dist. Aug. 24, 2021) (unpublished) was a Los Angeles-venued case which produced a global settlement complete with a provision for certain parties to bear attorney’s fees and costs by class counsel.  Class counsel sought to recover $3,348,160 in attorney’s and paralegal fees (4,538.8 hours at $720 per hour for attorneys; 679.5 hours at $110 or $125 per hour for paralegals).  However, the trial judge awarded class counsel $2,269,400 in attorney’s fees and $80,224 in paralegal fees, reducing the attorney requested hourly rate from $720 to $500 per hour.  He also allocated fees among different parties and rejected two parties’ attempts to pay the awards out over time under Government Code sections 984 and 970.6.  He denied a 2.5 positive enhancement request.  The trial judge also taxed over $24,000 in routine costs requested by class counsel, triggering an appeal by the class.

            The Fifth District (although based in Fresno, not Los Angeles, but assigned the case on appeal for neutrality reasons) reversed and remanded with some specific instructions.  With respect to fees, the appellate panel initially determined that the settlement agreement did authorize fee/costs entitlement and then found that the trial judge’s reasoning on the lodestar was unclear, especially as to why the requested hourly rate was discounted downward from $720 and with a “Great Recession” lower rate rationale not explaining why higher rates were not justified from when it ended (2010 going forward).  Equally salient was the fact the lodestar could not be diminished solely or primarily because a governmental entity was the party with fee/costs exposure.  But the lower court did properly allocate fee/costs recovery among some parties and correctly denied the periodic payment requests because a fees/costs judgment was not a tort judgment against a public entity under section 984 and the requesting entities did not show that the L.A. County Board of Supervisors passed a hardship ordinance for purposes of satisfying section 970.6.  Finally, on the routine cost issues, class counsel did not have to use Judicial Council costs memorandum forms (they are optional only), the trial judge impliedly allowed counsel more time to file the costs memorandum, and there were arithmetic discrepancies which the appellate court could not decipher—sending all of this back for a re-do, including a relook at the enhancement request.               

Deadlines, Discovery, Sanctions: Class Action Debt Collector Defendant Unsuccessfully Argues On Appeal That Renewed Discovery Motion Was Untimely And 1/3 DCA Affirms Monetary Sanctions Of $8,400

The Trial Court Declared The Discovery Motion Moot When It Granted Summary Judgment To Plaintiff, But Motion Was Renewed After Remand, And Parties Were Returned To Same Positions They Would Have Been In If Plaintiff Had Defeated Summary Judgment In The First Instance.

            In Timlick v. National Enterprise Systems, Case No. A160110 (1^st Dist., Div. 3 June 22, 2021) (unpublished), class action defendant, being sued for violating the minimum type-size requirements in its consumer collection letters, obtained summary judgment in its favor for having cured the violation as to plaintiff.  At the time, plaintiff’s pending motion to compel further responses and for sanctions was declared moot in light of the summary judgment.  After successfully appealing the summary judgment on behalf of the class (but not on behalf of herself), plaintiff renewed her discovery motion, which the trial court granted in substantial part in addition to awarding $8,400 of the requested $11,115 in requested monetary sanctions against defendant. 

            Defendant appealed – arguing that the discovery motion was untimely as the 45-day deadline to compel further responses had passed by the time plaintiff renewed her discovery motion.  Not so, said the 1/3 DCA.  Plaintiff’s discovery motion was timely filed prior to the trial court’s grant of the summary judgment, and the trial court had not denied the discovery motion when it declared the motion to be moot and “dropped without prejudice.”  Rather, the trial court’s grant of the summary judgment created a loss of ability for the trial court to grant the relief plaintiff sought.  However, reversal of the summary judgment left the parties “in a position no different from that they would have occupied if they had simply defeated the defendants’ motion . . . in the trial court.” (Urbaniak v. Newton, 19 Cal.App.4^th 1837, 1844 (1993).)  As such, the trial court’s jurisdiction to rule on plaintiff’s motion was restored and it had the discretion to order precertification discovery – notwithstanding any adverse rulings as to plaintiff individually.  Additionally, the panel found no abuse of discretion in the award of sanctions – especially given the trial court reduced the amount requested to reflect defendant’s partial success. 

Costs, Deadlines, Fee Clause Interpretation: Lender Defending Against Borrower’s Attempts To Enjoin Eventual Nonjudicial Foreclosure Properly Awarded $9.235 Million In Fees

However, Costs Award Of $332,704.20 Reversed For Failure To Timely File A Costs Memorandum, Although The Appellate Court Did Indicate Lower Court Could Entertain CCP § 473 Default Motion Based On Surprise If Lender Wanted To Renew Costs Issue.

            This next case, Rincon EV Realty LLC v. CP III Rincon Towers, Inc., Case Nos. A155104/A155284 (1^st Dist., Div. 4 June 10, 2021) (unpublished), is an interesting borrower/lender case which has yo-yoed between lower and appellate courts for several years after the lender eventually nonjudicially foreclosed on Rincon Towers (a San Francisco apartment complex).  However, lender did prevail in an action initiated by borrower to forestall foreclosure, with lender then seeking substantial attorney’s fees and costs under a Loan Agreement clause.  After an initial reversal and remand, lender sought $12.2 million in fees and costs, with the lower court awarding $9,235,712.93 in fees, but with it deferring a cost ruling until a new cost memorandum was filed.  Lender did that, claiming $909,548.03 in costs, $357,603.06 in statutory fees and $551,944.97 in costs awardable under the Loan Agreement.  The lower court only awarded statutory costs, reducing the request down to $332,704.30 as far as a court order.  Borrower appealed.

            Borrower argued that lender could not obtain contractual fees because the loan was non-recourse; however, the problem here was that the Loan Agreement contractual fees clause did apply to situations where the lender had to defend against a borrower’s action, rather than commence a lender action or suit against borrower seeking a monetary judgment.  Beyond that, the contractual “proceeding” language did not preclude lender from bringing a fees motion, because a “proceeding” was more akin to an “action” that lender did not commence.  Borrower next argued that the fee award was precluded by anti-deficiency California borrower protections, but that contention was not successful because borrower brought an unmeritorious suit to which lender had to respond—an action which did not implicate a lender attempting to renege on a non-recourse loan.  (See Jones v. Union Bank of California, 127 Cal.App.4^th 542, 547-548 (2005); Passanisi v. Merit-McBride Realtors, Inc., 190 Cal.App.3d 1496, 1509 (1987).)  So, the substantial fee award was affirmed on appeal.

            That brought the appellate court to the costs award, which was a little tricker to resolve.  The 1/4 DCA agreed that the costs memorandum was untimely filed, past the 15-day notice of entry filing deadline even though there were some issues still pending in the appellate court—the best measure was to protectively file it, something lender did not do by quite a bit of time.  However, that did not end the matter.   The appellate court was sympathetic to the fact that the complex procedural context of the case might have been a surprise to the lender such that a CCP § 473 discretionary motion to allow the filing of the belated costs memorandum might be successful.  But it did not want to do that, reversing the smaller component of the costs award (the larger component were damages, and rejected because they were not pled and were not subject to damages proof below) and remanding to the lower court to decide if discretionary default relief should be granted.  So, there might be hope on the cost component for lender.

Deadlines, Sanctions: $1,500 In Code Civ. Proc. § 2023.030 Sanctions Issued Against Nonparty, For Failure To Comply With A Deposition Subpoena For Production Of Business Records, Reversed On Appeal

The Deposition Subpoena And Motion To Compel Compliance Were Not Properly Served On Nonparty, Plus The Motion To Compel and For Sanctions Was Untimely.

            In Yousif v. Alpine Orthopedic Medical Group, Case No. F078734 (5^th Dist., May 7, 2021) (unpublished), certain defendants in a malpractice action sought discovery from a nonparty doctor through a deposition subpoena for production of business records. (Code Civ. Proc. § 2020.010(a)-(b).)  Later, when defendants sought a motion to compel and sanctions, the trial court issued $1,500 in § 2023.030 sanctions against nonparty doctor for not fully complying with the deposition subpoena.

            Nonparty doctor appealed, and the Fifth District reversed – finding abuse of discretion.

            Neither the deposition subpoena, nor the motion to compel, had been properly served on nonparty doctor, and a subpoena for production of business records may not be enforced against an individual who was not personally served with the subpoena, nor against one who is not the custodian of records or a person qualified to make the attestation required by Evidence Code § 1561.

            The proof of service for the deposition subpoena indicated it had been personally served on “ANNA B,” with no evidence that she was an “officer, director, custodian of records, or . . . agent or employee authorized . . . to accept service of a subpoena.” ((§ 2020.220(b)(2).)   In fact, defendants did not dispute a declaration by Anna B., which stated that she worked in the front office, had the deposition subpoena thrown at her face while she was working, and that the custodian of records had not been served with the subpoena.  The motion to compel was also served on Anna B., instead of being personally served on doctor nonparty as required pursuant to Cal. Rules of Court, rule 3.1346.  As such, defendants were not entitled to sanctions as they failed to demonstrate a misuse of the discovery process warranting sanctions because they failed to prove that the subpoena was personally served on nonparty doctor or the custodian of his records.

            Additionally, the motion to compel and for sanctions was untimely pursuant to the mandatory 60-day deadline set forth in § 2025.480(b) and should have been denied by the trial court.

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. 

Deadlines, Employment, Reasonableness Of Fees: $84,107.50 Fee Award, With Stipulated-To Small Reduction, Affirmed On Appeal In Wage/Hour Win After Two-Day Bench Trial

Small Claims Work Excluded, So The Ultimate Modified Award Was $83,555; Compensatory Award Was $30,929.94 Plus Interest.

            In Ojeda v. Azulay, Case No. B302440 (2d Dist., Div. 3 Feb. 10, 2021) (unpublished), plaintiff employee prevailed against defendant employers on three of eight Labor Code claims after a two-day bench trial, and was awarded $30,929.94 in damages plus interest.  That, of course, gave rise to wage/hour fee entitlement, with plaintiff moving for $126,161.25 (lodestar of $84,107.50 plus a 1.5 multiplier) in fees and $4,910.99 in costs.  Plaintiff had to admit that he was a couple of days late in filing the fee motion, but he explained why.  Despite an opposition, the lower court awarded the $84,107.50 lodestar request without a multiplier, prompting an appeal by the other side.

            The untimeliness argument did not resonate because plaintiff fell on his sword and the lower court impliedly found good cause to consider the merits of the fee motion, all the more so because there was no reporter’s transcript of the fee hearing to show otherwise.  On the merits as to the amount of the fee award, no abuse of discretion was shown, with plaintiff admitting that a minor $552.50 for related small claims work should not have been included—something the lower court failed to deduct, but the appellate court did, affirming the remainder of the award.  Requesting compensation for a 2-day bench trial, 197.9 hours at $425/hour, was not seen as being patently outrageous as far as a lodestar fee request. 

Fee Clause Interpretation, Deadlines: Broker Award Of $150,000 In Prevailing Contractual Fees Affirmed On Appeal

Good Cause Was Shown For Allowing Fee Motion To Be Considered After Deadline, With Broad Fees Clause Encompassing Contractual Duties Even If Statutory Duties Were Not Encompassed.

            Price v. Gullan, Case No. D075332 (4^th Dist., Div. 1 Oct. 21, 2020) (unpublished) was a very contentious case involving a defective yacht purchase dispute where the purchaser ultimately won damages/fees against yacht sellers but failed to obtain any relief against the dual broker in the transaction.  Broker then moved for costs and attorney’s fees of $440,198.45, with real storms arising on whether the fees motion was timely filed based on the judgment “trigger point” and on whether there was legitimate fee entitlement.  The lower court did award the requested routine costs and $150,000 in attorney’s fees to broker.

            Purchaser’s appeal of the fees award in favor of broker was unsuccessful.

            Although the legal discussion was somewhat convoluted, the time to appeal was triggered from the original judgment given that it only allowed costs but did adjudge the fee entitlement issue.  However, the deadline to file the fees motion can be extended for good cause—and that standard was met given a lot of confusion on the procedural history of what occurred.  The appellate court, here, did have a nice discussion on how trial courts have inherent power to grant a costs and/or fees request that does not strictly comply with statutory requirements.  With respect to the merits, the broad “arising out of or relating to this Agreement” language did encompass broker’s actions as a matter of contract, setting aside whether the conduct violated statutory actions outside the scope of the fees contract.  So, in the end, broker’s fees award was affirmed on appeal.

Deadlines: 2/3 DCA Affirms Costs/Contractual Attorney Fees Award To Prevailing Defendant That Filed Its Costs Memo And Fees Motion More Than 60 Days After The Superior Court Clerk Mailed A Conformed Copy Of The Judgment

The Clerk’s Mailing Did Not Trigger Deadlines For The Costs Memorandum Or Fees Motion Because The Judgment Was Not Accompanied By A Proof Of Service And Failed To Satisfy Requirements For Service Of Notice Of Entry Of Judgment.

            In MES Investments, LLC v. Dadson Washer Service, Inc., Case No. B297634 (2d Dist., Div. 3 September 25, 2020) (unpublished), defendant was awarded prevailing party costs and contractual attorney fees following a bench trial.  On appeal, plaintiff argued that defendant’s motions for fees and memorandum of costs were not timely filed.

            When the trial court entered judgment, the superior court clerk mailed a conformed copy of the judgment to the parties.  Plaintiff claimed the clerk’s mailing triggered a 15-day deadline for defendant to file and serve its memorandum of costs pursuant to California Rules of Court, rule 3.1700(a)(1), and a 60-day deadline for defendant’s fees motion pursuant to rule 3.1702(b).  Because defendant filed and served its costs memorandum more than 60 days after the clerk’s mailing, and its fees motion 60 additional days beyond that, plaintiff argued the fees/costs awards should be reversed.

            However, the 2/3 DCA affirmed – explaining service of notice of entry of judgment did not occur until defendant filed and served it on the same date it filed its memorandum of costs.  The clerk’s mailing of the judgment did not include a proof of service – meaning there was nothing in the record establishing the deadlines for defendant to file its costs memorandum and fees motion as the simple act of mailing a conformed copy of the judgment does not constitute service of notice of entry of judgment.  To constitute service and establish posttrial motion deadlines, “the clerk’s mailed notice must affirmatively state that it was given ‘upon order by the court’ or ‘under section 664.5’ and a certificate of mailing the notice must be executed and placed in the file.” (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc., 15 Cal.4th 51, 64 (1997).)

Deadlines, Probate: Trustee Obtaining $285,363.10 Fee Award Against Beneficiary Who Brought Objections In Bad Faith Affirmed On Appeal

Probate Code Sections, Contractual Fee Provisions, And Equitable Powers Provided Fee Entitlement, With CRC 3.1702 Fee Motion Filing Deadlines Not Applicable To Probate Proceedings.

            In Rudnick v. Rudnick, Case No. F079105 (5^th Dist. Sept. 23, 2020) (unpublished), a beneficiary in a long-standing trust dispute withdrew objections to a final distribution/termination of the trust on the eve of a hearing.  The lower court determined the objections were in bad faith and, while an appeal was pending on that determination (ultimately affirmed), trustee brought a fee motion to recover $314,000 in fees under Probate Code section 17211(a) [a fee-shifting provision involving challenges to a trustee’s account activities which were made without reasonable cause and in bad faith], a contractual fees clause in a settlement agreement between the parties, and Probate Code section 1310(b) [equitable powers of the probate court to take actions to prevent loss or injury to property].  The probate court awarded $285,363.10 in fees and $5,167.52 in costs to trustee.  Aggrieved beneficiary appealed.

            The Fifth District, in a 3-0 opinion authored by Acting Justice Levy, affirmed.  All of the issues raised were legal in nature, and none of them bore fruit from beneficiary’s viewpoint.

            Appellant first argued that the lower court lacked jurisdiction to pass on fees because the prior appeal stayed any such determination, but caselaw was to the contrary.  (Bankes v. Lucas, 9 Cal.App.4^th 365, 368 (1992); Silver v. Gold, 211 Cal.App.3d 17, 26 (1989).)  There were three independent bases for fee entitlement:  section 17211(a), the settlement agreement fees clause, and the general equitable powers of the probate court.  Even though reasonable cause to object to a trustee’s account is a legal issue (Uzyel v. Kadisha, 188 Cal.App.4^th 866, 927 (2010)), the timing of the beneficiary’s withdrawal of objections in tandem with the meritless nature of them easily supported the lower court’s conclusion.  Appellant also contended that the fee motion was untimely based on failure to follow the CRC 3.1702 deadlines, but the problem there was that those deadlines do not apply to probate proceedings.  (Hollaway v. Edwards, 68 Cal.App.4^th 94, 97-99 (1998) [construing predecessor to rule 3.1702].)

Deadlines, Homeowner Associations: Later Finding That HOA-Homeowner Settlement Agreement Was Invalid Presented Good Cause To File Fee Motion After 60-Day Deadline

Settlement Misconception By The Parties Allowed Dismissed Board Members To Seek Fees.

            In Gallian v. Gragnano, Case No. G057198 (4^th Dist., Div. 3 Sept. 15, 2020) (unpublished), HOA sued a homeowner for architectural violations under the CC&Rs, which prompted homeowner to crossclaim against the board members for indemnification, fault apportionment, and declaratory relief.  The board members were dismissed with prejudice, with HOA and homeowner reaching what they believed to be a binding settlement agreement which also bound board members (although not signed by them)—with the HOA attorney also representing the dismissed board members.  Later, when the HOA sought to enforce the settlement agreement, the trial judge found there was no meeting of the minds.  Well after the 60-day deadline for filing an attorney’s fees motion after the notice of dismissal was served, board members moved for fees as prevailing parties under Civil Code section 5975, the Davis-Stirling Act fee-shifting statute.  The lower court awarded board members $46,138 in fees, finding good cause to allow the fee motion filing based on the mutual misconception that the settlement agreement was binding.

            Homeowner’s appeal of the fee award did not alter the result in a 3-0 panel decision authored by Justice Ikola.

            Homeowner first argued that board members, after dismissal, could not file a fee motion.  This was dispatched easily because former parties after dismissal have collateral rights to seek fees and costs.  (Day v. Collingwood, 144 Cal.App.4^th 1116, 1124 (2006).)  Although the board members were not technical parties to the settlement agreement because they did not sign or expressly assent to its terms before the court, the circumstances at play—everyone’s belief the settlement agreement was valid such that no fees would be sought if it was—presented good cause to file the fee motion later.  “We would not expect a party attempting in good faith to negotiate a settlement to throw a wrench in the works by moving for an award of attorney fees during the negotiation.”  (Slip Op. at 6.)  Homeowner’s argument that the cross-complaint was not one to enforce the CC&Rs did not gain much traction, given that it was derivative of the HOA suit to enforce the governing common interest documents. 

Deadlines, Intellectual Property: Ninth Circuit Rules That Filing A Fees Motion, Absent A District Court Extension Or Decision To Treat It As A Rule 59 Motion, Does Not Extend The 30-Day Deadline To Review An Earlier Merits Decision

Practice Tips—Ask The District Judge To Treat Fee Motion As A Rule 59 Motion Or File Two Appeals, One On The Merits And One On The Fees Ruling.

            Nutrition Distribution LLC v. IronMag Labs, LLC, No. 19-55251 (9^th Cir. Aug. 25, 2020) (published) was a Lanham Act case where a plaintiff was denied monetary relief, was issued an injunction, and was denied fees on a preliminary basis through a December 13, 2018 judgment.  On December 27, 2018, plaintiff moved for post-judgment fees, a motion denied on January 30, 2019.  Plaintiff filed an appeal of the merits and fee rulings on March 1, 2019, within 30 days of the eventual fees ruling but almost 80 days after the initial judgment. 

            The Ninth Circuit first decided that the appeal of the merits ruling was untimely because it was way after 30 days from December 13, 2018.  The filing of the fees motion did not extend the time for filing an appeal unless the district judge grants an extension under FRCP 58(e) or agrees to treat the fees motion as a Rule 59 motion which allows for more time.

            With respect to the fees ruling (which could be reviewed), the district judge did not abuse its discretion in determining that it was not “exceptional” under the Lanham Act fee-shifting statute:  the motion itself violated local rules; plaintiff obtained no damages from defendant’s advertising activities; and plaintiff had filed 80 similar advertising lawsuits over a 3-year span.

            BLOG PRACTICE TIP—This case provides a practice tip in this area.  Either ask the district court to treat the fees motion as a Rule 59 motion or, if no extension is granted by the district judge, appeal the merits and fees rulings separately (with the Ninth Circuit suggesting this double appealing process carries no consequences, feeding into “healthy lawyer paranoia”). 

Deadlines: Failure To Object To Magistrate’s Fee-Fixing Decision, Appealing To Circuit Court Rather Than Objecting In Front Of District Judge, Means The Deadline Was Blown And The Objections Waived.

Although Unsettled, District Found That The Ruling Involved a Dispositive Issue, Which Still Did Not Excuse The Failure To Object.

            In LCS Group, LLC v. Shire LLC, Case No. 18-cv-2688 (S.D.N.Y. June 22, 2020), U.S. District Judge Analisa Torres determined that plaintiff and its attorneys, who were sanctioned earlier in attorney’s fees in the amount of $133,803.75 in favor defendants, failed to timely object to a magistrate’s decision fixing the fees.  What the plaintiff side did was to move for reconsideration and then appeal the ruling to the Second Circuit Court of Appeals.  The federal appellate court much later decided that it lacked jurisdiction to hear the appeal because the ruling was either a report and recommendation by a magistrate on a dispositive issue or a ruling on a non-dispositive issue, neither of which could be appealed. Instead, District Judge Torres found that the proper course was for plaintiff/its attorneys to object to the magistrate’s ruling within 14 days under F.R.Civ.P. 72.  That deadline had long passed, so the fee award had to stand.  The district judge determined that the motion for fees did pose “dispositive questions” (even though the Second Circuit found the issue was unsettled), but that still did not excuse the failure to make timely objections under Rule 72. 

Deadlines, Equity: Plaintiff’s CCP § 473(b) Mandatory Relief Motion Did Not Excuse Attorney’s Failure To File A Timely Fees Motion Based On Lower Court Order

Result Was A Causation Issue—Failure To File Fee Motion Did Not Cause The Dismissal, But Only Resulted In A Lost Fee Request Opportunity.

            Co-contributor Mike was a collegiate debater, with causation being a very important argument.  That was just at issue and dispositive in the case in Hernandez v. FCA US LLC, Case No. B296516 (2d Dist., Div. 8 June 11, 2020) (published).

            There, parties advised a trial judge that they had settled on the first day of a scheduled trial, with plaintiff under a lemon law case agreeing to file a “with prejudice” dismissal upon the payment of the settlement and upon payment of any attorney’s fees and costs by agreement or noticed motion.  The trial judge was fine with the settlement, but he wanted to set a deadline for filing of the fees motion on an Order to Show Cause re Dismissal deadline of 90 days out, with any fees motion needing to be set for hearing by that OSC date.  Well, you can guess what happened.  Plaintiff’s counsel did not file the fees motion by the OSC deadline, but the trial judge continued things for about a month.  Plaintiff’s counsel did not do anything for a month, except to file an ex parte request to file the motion later—a request made at the last moment on the continued OSC date.  The trial judge was unsympathetic, denying the fee continuance request and finding no basis for a mandatory CCP §473(b) motion relief.   The action was dismissed.

            Well, flummoxed, plaintiff appealed for not being given the chance to present an attorney’s fees motion, arguing section 473 came to the rescue.   

            Didn’t work on appeal. 

            Much of this appeal, in our view, hinges on the fact that § 473 mandatory relief only was sought.  Although many elements for mandatory relief were satisfied, plaintiff failed to satisfy the causation element—the dismissal was not caused by the attorney’s mistake, inadvertence, surprise, or neglect.  The problem here was that the actual dismissal resulted because the parties reached a settlement and plaintiff had been paid in full, not anything hinged to the fee denial.  The lost opportunity to bring the fee motion was not causally linked to the dismissal, such that the mandatory relief provision did not act to save plaintiff’s attorney’s error.  Much of this was based on the trial judge’s case management order, so litigants and attorneys need to make sure they abide by these deadlines.  If not, even safety valves for missing deadlines may not be available.

Deadlines: Plaintiff’s Motion For Prevailing Party Fees Was Untimely When Filed 86 Days After Plaintiff Received Notice Of Entry Of Judgment

60 Days Is The CRC 3.1702(b) Deadline, Which Is Not Extended Whether Anyone Appealed.

            Plaintiff in Ruiz v. NDS Default Service, LLC, Case No. E072061 (4^th Dist., Div. 2 June 9, 2020) (unpublished) filed a prevailing party fees motion 86 days after receiving notice of entry of judgment.  Under CRC 3.1702(b) and 8.108, that motion was untimely because the deadline was 60 days.  (If no notice of entry of judgment is provided, the deadline is 180 days.)  Plaintiff argued that the 60-day deadline only applies where one party appealed and, if not, the longer 180-day period applied to make her motion timely.   The 4/2 DCA disagreed because “[i]t’s irrelevant whether any party is pursuing an appeal” with respect to the running of the rule 3.1702(b) deadlines.

Deadlines, Retainer Agreements, Section 1717: 4/1 DCA Affirms $108,848.50 Attorney Fees Award To Prevailing Plaintiff Attorney For Work In Seeking Unpaid Fees And In Defending Against Former Client’s Cross-Complaint

Balance Of Unpaid Fees And Costs Were $31,147.17 When Former Client Stopped Making Agreed-Upon Monthly Installment Payments Of $200.

            In Delisi v. Wagner, Case Nos. D074728 and D075506 (4^th Dist., Div. 1 January 27, 2020) (unpublished), an attorney sued his former client for unpaid fees and costs when Former Client stopped making monthly installment payments of $200 agreed upon by the parties in an addendum to their retainer agreement.   

            Former Client owed $31,147.17 when he stopped making the $200 monthly installment payments.  When Attorney sued for the unpaid fees, Former Client filed a cross-complaint for general negligence alleging damages as a result of Attorney’s representation in Former Client’s divorce case, and seeking damages of $88,275.  The trial court found the cross-complaint was time-barred pursuant to the one-year statute of limitations set forth by Code Civ. Proc. section 340.6, and granted Attorney’s motion for summary judgment.  Later, the trial court also granted Attorney’s motion for summary judgment on his complaint for unpaid fees and costs – awarding $12,000 for 60 missed installment payments, plus interest from the date each installment payment became due.

            As the prevailing party, and pursuant to the attorney fees provision in the parties’ retainer agreement, Attorney then successfully moved for two awards of attorney fees and costs under Civ. Code section 1717 – receiving an award of $108,848.50, with $88,495.50 awarded for the fees/costs incurred in prosecuting his complaint, and $20,353 awarded for the fees/costs incurred in defending against the cross-complaint.  Attorney's motions for fees and costs were considered unopposed by the trial court due to the late filing of Former Client's opposition.

            Former Client unsuccessfully appealed the judgment and post-judgment awards of fees/costs – with the 4/1 DCA finding he failed to meet his burden of proving reversible error on both procedural and substantive grounds.  With regard to the summary judgment, Former Client – who had represented himself at both the trial and appellate court levels – had forfeited arguments on appeal by failing to support them with sufficient facts, citations to the record, and/or failing to raise them in the trial court.  As to the attorney fees orders, Former Client had forfeited appellate review by failing to timely oppose Attorney’s motions in the trial court.

Costs, Deadlines, Reasonableness Of Fees, SLAPP: 2/3 DCA Affirms SLAPP Fee Award To Defendant Of $53,915.50, The Full Defense Request, Rejecting Untimely Motion Filing Argument

However, Costs Award Reversed Because It Was Untimely Filed And Prejudiced Plaintiff.

            In Residual Income Opportunities, Inc. v. Cynergy Data, LLC, Case No. B289219 (2d Dist., Div. 3 Aug. 29, 2019) (unpublished), the defense won a SLAPP motion, filing for recovery of costs to the tune of $3,567.77 and moving for attorney’s fees totaling $53,915.50.  The trial judge denied plaintiff’s motion to tax costs and rejected its opposition arguments by awarding fees as requested by the defense.  Plaintiff appealed, obtaining no change on the fee award but obtaining a reversal of the costs award.

            Attorney’s Fees Award.  Plaintiff first argued the fee motion was untimely, because it was filed 61 days after notice of entry of the SLAPP order.  The appellate court disagreed, because the 60-day deadline under CRC 3.1702 was extended two court days pursuant to CCP § 1010.6(a)(4)(B).  The amount of the award was no abuse of discretion, because (1) the trial court was in the best position to reduce for any duplication, which was not done; (2) paralegals can be compensated and do not have to show their licenses as part of any fee request; (3) the work descriptions in submitted billings were not vague; and (4) $330-790 hourly rates were reasonable for L.A.-venued work, especially given the defense attorneys made a voluntary 15% across-the-board reduction.  Fee award affirmed.

            Costs Award.  The filing was determined to be untimely, coming 46 days after service of a notice of entry of the SLAPP grant (which acted to dismiss the extant complaint as against Cynergy).  This was beyond the 15-day deadline set forth in CRC 3.1700(a)(1).  Cynergy argued that the minute order dismissing the case was unsigned such that time to file was extended, but the appellate court determined that there was a SLAPP grant order which was signed, a document qualifying as a judgment triggering the 15-day costs filing deadline.  (Code Civ. Proc., §§ 581d, 577.)  Although a trial judge can extend the 15-day deadline for up to another 30 days, the 46 days lapse divested authority from the trial court to entertain the costs request.  But, that brought the costs issue to the ultimate question of whether entertaining the costs bill was prejudicial.  The appellate panel concluded that it was, because the costs bill included demurrer expenses which it did not find to be related to the SLAPP motion work, not embracing reasoning otherwise in Metabolife Intern., Inc. v. Wornick, 213 F. Supp.2d 1220 (S.D. Cal. 2002).  Costs award reversed.

            HAT TIP—The main basis for the appeal was the fees award.  Congratulations to Joshua R. Mandell and Alicia Y. Hou of Ackerman for sustaining the fee award for Cynergy on appeal.