CALIFORNIA ATTORNEY'S FEES

Deadlines/Family Law: Appeal Of $5,000 Needs-Based Fee Award Untimely Because Brought Outside of The 180-Day Maximum Deadline

 

Fee Award Directed Payment Of Money, So It Was Final For Appealability Purposes Even Though Order Said Future Adjustments Could Be Made.

     In Marriage of Bustillo, Case No. G048816 (4^th Dist., Div. 3 Dec. 15, 2014) (unpublished), husband appealed a $5,000 needs-based fee award to wife, entered in May 2012, directing payment of money by a specified deadline. However, he waited until August 2013 to appeal based on a July 2013 later order reinstating the May 2012 fee order in an attachment to the 2013 order.

     Our local Santa Ana court, in a 3-0 decision authored by Justice Aronson, dismissed the appeal as untimely. The reason was that the May 2012 order was appealable at the time it was entered because it satisfied the collateral order doctrine by directing the payment of money. Even though the order said the court could “make adjustments,” this language simply recognized the family judge reserved authority to make further attorney’s fees orders. However, husband appealed way past the 180-day maximum appeal deadline (given no notice was given of the ruling by either side). Appeal dismissed, with the appellate court also denying wife’s request for appellate sanctions.

Deadlines: Failure To File Noticed Motion Separate From Costs Memorandum Resulted In Denial Of Appellate Attorney’s Fees

 

Ignorance of the Law Was No CCP § 473 Excuse.

     Deadlines and procedural technicalities can be a real trap for all lawyers, and can especially be gnarly when requesting attorney’s fees. Van Loon v. Winchester-Wesselink, LLC, Case No. E058826 (4^th Dist., Div. 2 Dec. 3, 2014) (unpublished) illustrates this well. There, plaintiffs filed a timely costs memorandum, but no noticed motion, for purposes of seeking attorney’s fees as the prevailing party on appeal. The lower court denied the fee request based on the absence of a noticed motion, a determination affirmed on appeal. After all, the lower court did inform plaintiffs at an earlier hearing to tax routine costs that a noticed motion was needed. Plaintiffs did not follow up, with ignorance of the law being no legitimate excuse under Code of Civil Procedure section 473 so as to allow for discretionary relief under these circumstances. Ouch!

Deadlines/Paralegals: Prevailing Party Under Brown Act And Political Reform Act Fee-Shifting Statutes Had Fees And Paralegal Fees Stricken From Costs Award

 

 

Reason Was Failure to File a Noticed Motion or Submit Costs Memo With an Affidavit.

 

     Arth v. Raine, Case No. C071303 (3d Dist. Nov. 25, 2014) (unpublished) is a somber reminder to follow Code of Civil Procedure section 1033.5 dictates when seeking attorney’s and paralegal fees under statutory fee-shifting provisions.

     Here, a prevailing party was awarded discretionary attorney’s fees, paralegal fees, and costs totaling $15,449.06 under fee-shifting provisions of the Brown Act (Government Code section 54960.5) and the Political Reform Act of 1974 (Government Code section 91003). However, all but a small portion of the costs award was salvaged after the losing party substantially obtained a reversal on appeal.

     The reason was that the prevailing party had not properly followed the procedure for requesting attorney’s and paralegal fees under CCP § 1033.5. Prevailing party had only filed a standard costs memorandum, but section 1033.5 requires a noticed motion (not done) or a costs memo accompanied by a concurrently filed affidavit (no affidavit was filed). The appellate court found that this was fatal to the fee recovery, given that a costs memo with an attorney attestation did not suffice to satisfy the affidavit requirement. (The Court of Appeal also observed that paralegal fees are the same as attorney’s fees as far as complying with section 1033.5 requirements.)

     However, not all was lost. Losing party challenged a $90 “CourtCall” expense, but that challenge was rejected because losing party waived it by not raising the argument in his motion to tax costs. So, in the end, prevailing party ended up with $645 in costs, rather than the previous more beefy costs award including attorney’s and paralegal fees.

Deadlines/Equity/SLAPP: SLAPP Motion Fee Grant Order Was Not Timely Appealed

 

Also, CCP § 473 Motion to Vacate Denial Order Was Timely, But Mandatory Relief Not Available And Discretionary Relief Properly Denied For Lack Of Diligence.

     Grinberg v. Kalili, Case No. B245899 (2d Dist., Div. 4 Sept. 10, 2014) (unpublished) originated as a dispute over the suitability of a $158,000 Ferrari, with the plaintiff losing and then being exposed as a defendant, in tandem with his attorney as a co-defendant, in a malicious prosecution suit by the Ferrari prevailing litigant. Defendants in the malicious prosecution successfully SLAPPed malicious prosecution plaintiff, obtaining a judgment for costs and for ______ in fees which was served on October 29, 2011. Later, one of the winning SLAPP defendants (the former suing Ferrari plaintiff) requested $55,615 in mandatory SLAPP fees, but the lower court only awarded $43,237.50 on an unopposed motion at a March 20, 2012 hearing, which order was entered on May 8, 2012. Then, about five months after the fee hearing, the attorney’s fees loser moved to vacate the fee order under CCP § 473. The lower court denied that motion on November 9, 2012, with loser appealing all orders/judgments “under CCP § 904.1(a)(3)-(13)” on December 19, 2012.

     The SLAPP merits appeal was untimely—it was one year too late, with the motion to vacate not extending the time for an appeal.

     Because the fee loser did timely appeal the motion to vacate under § 473, that did extend the time to appeal the fee order itself. However, CRC 8.108 has an important “earliest date” trigger—30 days after notice of entry of the motion to vacate order (something not at play, because no notice of entry was given) or 90 days after the motion to vacate was filed or 180 days after entry of the fee order. That last segment rendered fee loser’s appeal of the fee order untimely, because 180 days from the entry of the fee order expired on November 4, 2012 such that the December 19, 2012 appeal was too late.

     That took the reviewing court to the timely appeal of the denial of the motion to vacate the fee order under § 473. Fee loser’s attorney tried to “fall on the sword,” but the appellate court found mandatory relief was not available because the denial order was not a default or a default judgment. (Vandermoon v. Sanwong, 142 Cal.App.4^th 315, 321 (2006).) As far as discretionary relief was at issue, the lower court found that fee loser’s attorney did not adequately explain why five months elapsed from the date of the fee hearing to the date of the filing of the motion to vacate—put another way, no adequate diligence was shown on why relief was not sought earlier. Bottom line, $43,237.50 fee order remained intact.

Deadlines/Prevailing Party/Reasonableness Of Fees: Fee Award To Defendants Affirmed Based On Waiver And Failure To Provide Reporter’s Transcript Of Fee Hearing

 

Where Reasonableness of Fees Involved, RT Is a Likely Necessity; Cost Memo Was Timely Filed.

     Pladott v. Blankstein, Case No. B250097 (2d Dist., Div. 5 Sept. 4, 2014) (unpublished) involved a plaintiff “hit” with attorney’s fees and costs by defense, with plaintiff arguing that the existence of a cross-complaint meant the postjudgment orders were premature, the costs memo was untimely filed, and the fee award was unreasonable in nature.

     Plaintiff did not get one iota of relief on appeal.

     The finality argument was not competently based on documents in the appellate record and had never been raised in the trial court, so it was deemed waived.

     The costs memo was timely filed from a deadline standpoint, because notice of entry was served in a delayed fashion; so, the 15-day period plus 5 days for mail meant that the defense did timely file for costs when measured from the date of entry document.

     Then, to reasonableness, an issue reviewed under the deferential abuse of discretion standard. In this instance, plaintiff’s failure to include a reporter’s transcript of the fee hearing was fatal, especially on a reasonableness issue. (Maria P. v. Riles, 43 Cal.3d 1281, 1295-1296 (1987); Vo v. Las Virgenes Municipal Water Dist., 79 Cal.App.4^th 440, 447 (2000).) The inclusion of the tentative decisions and ultimate rulings was not sufficient on the reasonableness issue.

     BLOG UNDERVIEW—This decision from the 2/5 DCA is in line with many decisions, mainly unpublished, from the First District holding that the absence of an RT is oftentimes dispositive on a fee reasonableness issue.

Deadlines: Trial Court Had Jurisdiction To Amend Statement Of Decision To Include Attorney’s Fees Award To Prevailing Plaintiff

 

Didn’t Matter That New Trial Motion 60-Day Deadline Was Exceeded.

     In a dispute between two marine transportation companies over charges for tugboat services under a series of contracts, plaintiff prevailed and was awarded contractual attorney’s fees in American Marine Corp. v. Harley Marine Services, Inc., Case No. A133283 (1^st Dist., Div. 3 Aug. 26, 2014) (unpublished). Losing defendant argued that the lower court lacked jurisdiction to award fees because they were awarded after the 60-day new trial deadline lapsed even though they were made in an amended Statement of Decision. This argument was rejected given that a lower court can amend or correct a Statement of Decision anytime before entry of final judgment, which did not depend on the new trial motion timing. (Bay World Trading, Ltd. v. Nebraska Beef, Inc., 101 Cal.App.4^th 135, 140-141 (2002).) Affirmed.

Deadlines/Section 1717: Party Seeking Contractual Fees Need Not File Costs Memorandum In Addition To Noticed Motion For Purposes Of Seeking Fees

 

Nothing in Statues Require Costs Memo Filing, With CRC 3.1702 Governing.

     In ruling on a first impression issue on the published level, Kaufman v. Diskeeper Corp., Case No. B 248151 (2d Dist., Div. 4 Aug. 21, 2014) (published) decided that a party seeking contractual fees under Civil Code section 1717 need not, in addition to filing a noticed motion, file a costs memorandum in order to seek fee recovery in most contested matters.

     The applicable statute, CCP § 1033.5(c)(5), only talks about fees as a costs item to be fixed by noticed motion unless in default judgment or stipulation otherwise contexts. So, that meant that CRC 3.1702 did govern despite some ambiguity in CRC 3.1700(a), because the former was more specific and “trumped” the other more general directive—with 3.1702 requiring a noticed motion to claim fees. The language in Judicial Council forms gave further support to the appellate court’s conclusion, with the costs memo saying no entry under the attorneys fees line item needs to be entered if the fees are fixed without the necessity of court intervention (but obviously not in contested cases requiring a court decision on fees).

     This resulted in a reversal of a lower court fee denial based on the absence of a costs memo.

Civil Rights/Deadlines/Retainer Agreements: In A Wild One, FEHA Plaintiffs Garner $542,142.50 Fee/$10,642.50 Cost Award Despite Fee Motion Being Filed Two Years Down The Line

 

Extraordinary Circumstances Justified Noncompliance With Deadlines, And Client/Attorney Agreement On How To Divide Statutory Fee Awards Did Not Violate Any Ethical Prohibitions.

     Blythe v. County of Riverside, Case No. E055186 (4^th Dist., Div. 2 July 16, 2014) (unpublished) is a wild FEHA fee/costs award case encompassing deadline, standing, and retainer agreement divisions of a diverse nature.

     Briefly told (and we will try), prevailing FEHA plaintiffs—one getting a $65,760.54 compensatory award and another getting another $100,680.73 in damages--sought fees and costs against County after a prior client attorney abandoned the case and required a new firm to investigate as well as file the fee motion almost two years down the line (way after the CRC 3.1702(b)(1) general appeal-geared deadlines). All kinds of issues were raised in opposition, but the lower court eventually awarded plaintiffs $542,142.50 in FEHA fees and $10,642.50 in “fees on fees” (fees to present the fees motion).

     This result was affirmed on appeal, with one small modification of $10,642.50 to prevent a “double dip.”

     County was miffed that the fee motion was filed almost two years later, but the record showed extraordinary circumstances justifying CCP § 473 relief—sealed documents showed that the prime attorney originally representing the plaintiffs abandoned the case post judgment, admitting positive misconduct, and that a new law firm had to do a lot of investigation to get at the bottom of things/file the fee petition.

     Good enough under unusual circumstances to get beyond the timeliness objection.

     However, beyond the contingency arrangement between clients and attorney in the retainer agreement as far as judgment proceeds, a certain percentage division allocation was reached as to what percentage went to client and what percentage went to attorneys should a statutory fee award occur, resulting in more challenges on appeal by County.

     Given this contingency arrangement, plaintiffs had standing to recoup their share of fees despite abandonment by the attorneys. The majority found that reasonable FEHA fees could always be sought by clients notwithstanding what was said in the retention agreement. A concurring justice found both parties and counsel under a fee allocation arrangement had standing to seek recovery of fees.

     County’s argument that the attorney abandonment worked a divestiture of fees was soundly rejected; after all, why should the client be penalized for attorney conduct beyond client’s control.

     That left the challenge that the statutory fee division in the retainer agreement between client and attorney somehow violated ethical prohibitions. Nope, because this is unlike referral or fee splitting agreements—this one was actually between the clients

and attorneys. (Los Angeles County Bar Association Prof. Responsibility & Ethics Comm. Ethics Opn. No. 523 (Dec. 2009).) Just as clients can divide judgment proceeds splits as far as contingency fees and can offset fees against contingency awards (or not do so), nothing prevented a client-attorney division of statutory fee awards.

Deadlines/Judgment Enforcement/Special Fee Shifting Statute (Elder Abuse): California Supreme Court “Splits The Baby” On Deciding If Appellate Fees For Elder Abuse And Fraudulent Transfer Claims Are Subject To Deadline Of Being Claimed Before Judgmen

Answers:  “No” on Elder Abuse; “Yes” on Fraudulent Transfer.

            In Conservatorship of McQueen, Case No. S209376 (Cal. Supreme Court July 7 2014), the California Supreme Court faced an interesting timing issue as to when appellate fees must be filed for and sought in a post-judgment enforcement situation.  Specifically, the plaintiff prevailed on both elder abuse and fraudulent transfer claims, obtaining a judgment in which post-judgment costs were incurred, most notably appellate fees for successfully defending both results.  (CCP § 685.040 allows a judgment creditor to recover reasonable and necessary costs of enforcing a judgment, including statutory fees “otherwise provided by law,” while Welfare & Institutions Code section 15657.5(a) has a specific fee shifting provision in favor of plaintiff prevailing parties in elder abuse claims.)  The lower court and Court of Appeal decided that the plaintiff filed too late for purposes of recovering appellate fees because judgment had been satisfied, with CCP § 685.080 indicating post-judgment enforcement fees and costs could not be recovered after judgment satisfaction. 

            The state supreme court reversed and affirmed, with the result being tied to the substantive claim at issue.

            On the elder abuse claim, it was decided that appellate fees are distinct from post-judgment enforcement expenses.  They are not governed by the judgment satisfaction deadline, but the more general CRC deadlines contained in rules 3.1702(c) and 8.278(c)(1)—so plaintiff could seek them on remand.

            Conversely, on the fraudulent transfer claim, this was governed by the CCP § 685.080 satisfaction deadline.  Plaintiff argued that this allowed for abusive manipulation by the judgment creditor, but the state supreme court saw it differently:  the judgment creditor could hold an uncertified check or reject a certified check by opting instead to seek post-judgment costs/appellate fees, while the judgment creditor should prudently expedite post-judgment expense requests if the creditor thinks cash might be tendered in satisfaction of the judgment.  So, on the fraudulent transfer claim, appellate fees could not be obtained, suggesting there will have to be an allocation on remand involving just the elder abuse fees.

Common Fund/Deadlines/Probate: Trust Beneficiaries Seeking Fees Under Common Fund Doctrine Should Have Been Allowed Something

CRC Rules on Filing Fee Motions Did Not Govern Probate Proceedings.

​The overall, convoluted probate dispute in Sheen v. Sheen, Case No. B243847 (2d Dist., Div. 8 July 1, 2014) (unpublished)—although colorful—does not involve extended discussion on the facts, although the appellate court did reverse lower court failures to award attorney’s fees to beneficiaries given undisputed benefit to the trust under the "common fund" doctrine.

​However, there are some "takeaways" from this opinion.

​The first significant point was procedural in nature. The parties resisting fee recovery claimed that the trial judge correctly ruled that CRC 3.1702.1(b)(1) time limitations barred the probate "common fund" fees request. Nope, the lower court was incorrect. Rule 3.1702.1(b)(1) applies to a civil case, not a probate case to recovery trust assets under the common fund doctrine. No go in holding these deadlines applicable in this context. (Hollaway v. Edwards, 68 Cal.App.4th 94, 98-99 (1998).)

​The second important point was that no one argued that the common fund doctrine did not justify some fees, just the amount of fees. A complete denial, under the factual circumstances, was an abuse of discretion—especially given that the adverse party did not dispute that something should be awarded.

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Costs/Deadlines: Costs Memorandum Filed Using Wrong Related Case Number Was Deemed Sufficient

 

No Prejudice or Misidentification Found to Opposite Side through Clerical Error.

     Plaintiff in Pladott v. Garbell, Case No. B247876 (2d Dist., Div. 5 June 11, 2014) (unpublished) appealed a denial of a motion to strike a costs memorandum filed against him by the defense. The facts were that the defense timely filed the cost memorandum, but mistakenly listed the case as a related case rather than the really correct case number. The lower court denied plaintiff’s motion to strike the costs memorandum and found it was timely filed.

     The appellate court affirmed. The wrong case number did not render the costs memorandum ineffective, because (1) the defense filed an errata prior to the filing and hearing on the motion to strike, and (2) the lower court accepted the errata because the costs memorandum was timely filed. Because plaintiff could not demonstrate any prejudice based on the “minor clerical error,” the denial of the motion to strike the costs memorandum was sustained. See D’Avola v. Anderson, 47 Cal.App.4^th 358, 362 (1996) (notice of appeal valid even though listed wrong trial court number).

Deadlines: Ninth Circuit Dismisses Appeal From Attorney’s Fees Order Because No Separate Judgment Document Needed To Trigger Running Of Appeals Period

 

Written Fee Order Was Enough of a Trigger, So Appeal Was Late.

     The Ninth Circuit in S.L. v. Upland Unified School Dist., Case No. 12-55715 (9^th Cir. Apr. 2, 2014) (published) had to decide an appeals timing issue and, in doing so, provided a graphic “practice tip” for federal court practitioners/litigants desiring to appeal an attorney’s fees order.

     This was a case involving a disabled minor appealing both merits and fee rulings in a case under the Individuals with Disabilities Education Act (IDEA). The district court upheld an administrative ruling partially denying educational cost reimbursements, and also awarded $34,989.77 out of requested $92,078.35 in fees under IDEA’s fee-shifting provision.

     Unfortunately for plaintiff, the appeal of the fees order was dismissed.

     The reason was relatively simple but does teach a valuable lesson: a district court’s written order on an attorney’s fees disposition triggers the 30 day appeals period under normal circumstances for civil litigants because no separate document, such as that required for a federal court judgment, is necessary in connection with a fee disposition. (F.R.Civ.P., rule 58(a)(3).) The problem was that the appeal of the fee ruling occurred 36 days after the date of the district court’s written fee order—6 days too late.

Glue mouse trap.  David Shankbone, photographer.  Creative Commons Attribution-Share Alike 3.0 Unported license

Appealability/Deadlines: Subsequently Entered “Judgment” On Fees Not Dispositive When Determining Appealability

 

Go From First Date of Entry, Said Reviewing Court.

     Okay, for you procedural pros or interested readers, you will like our post on Olla v. Wagner, Case No. B239702 (2d Dist., Div. 5 Feb. 5, 2014) (unpublished).

     The lower court entered a post judgment minute order awarding fees on April 2, 2012 to defendants, with defendants serving notice of entry on April 6, 2012. However, a document entitled judgment on fees motion was filed on April 27, 2012, with notice of entry of this “judgment” served on May 10, 2012. Plaintiff appealed the postjudgment fee order on July 3, 2012, which was over 60 days from the April 6, 2012 notice of entry from the minute order.

     Given this state of the record, what was the result? Answer: Untimely appeal.

     The appellate court determined the April 2, 2012 minute order was separately appealable as a collateral order. The subsequently entered April 27, 2012 “judgment” had no effect on the timing of the appeal. (Laraway v. Pasadena Unified School Dist., 98 Cal.App.4^th 579, 583 (2002).)

Cases Under Review/Deadlines: Unresolved Contractual Fee Motion Does Not Extend The Time To Appeal An Earlier Merits-Based Final Decision At Federal Court Level

 

U.S. Supreme Court So Decides, Finding Rule for Statutorily-Based Fee Motions Applied to Contractually-Based Fee Motions Also.

     On January 15, 2014, the U.S. Supreme Court issued its opinion in Ray Haluch Gravel Co. v. Cent. Pension Fund of Int’l Union of Operating Eng’rs, 2014 U.S. LEXIS 646 (U.S. Jan. 15, 2014). Earlier, this high court determined that unresolved statutorily-based fee motions do not extend the time to appeal a previously adjudicated merits-based final decision. Haluch Gravel took this earlier decision one step further—an unresolved contractually-based fee motion did not extend the time to appeal an earlier merits-based final decision. This one was unanimous, written by Justice Kennedy, on behalf of the Court.

     HAT TIP—Thanks to Orange County attorney Steve Krongold for bringing this decision to our attention.

Deadlines: Where Appellate Remittitur Required Entry of New Judgment, 60-Day Appellate Time Period, Not 40-Day Deadline, Applied

 

Legally Erroneous to Deny Fee Request on Untimeliness Ground.

     In Golden Hill Neighborhood Assn., Inc. v. City of San Diego, Case No. D062203 (4th Dist., Div. 1 Nov. 25, 2013) (unpublished), a trial court entered a new judgment following issuance of an earlier appellate remittitur. The lower court then denied the Association’s prevailing party fees request on the ground that it failed to file its fee motion 40 days after issuance of the remittitur pursuant to California Rule of Court, rule 3.1702(c)(1).

     On review, wrong CRC provision used to determine timeliness of fee motion filing, said the appellate court.

     Given that the lower court entered a new judgment after remittitur issuance, the correct rule was CRC, rule 3.1702(b)(1) which allowed for 60 days, a period within which the fee motion indeed was filed. Remanded to consider the fee motion because it was timely in nature.

Deadlines: Where Court Judgment Said Everyone Would Bear Own Fees/Costs, Prevailing Party Had To File Fee Motion To Challenge This Determination

 

Simply Appealing Was Not So Appealing.

     In San Diego Natives Holding Co, LLC v. Hughes, Case No. D061523 (4th Dist., Div. 1 Oct. 3, 2013) (unpublished), a judge did enter a judgment by which a party prevailed but said each side should bear its own costs/fees. The prevailing party appealed this determination.

     Prevailing party lost because it did not pursue the right avenue to challenge the judgment. That party should have filed a fee motion to demonstrate fee entitlement, which was the way to preserve the issue from being forfeited. (CRC 3.1702(b)(1); Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co., 223 Cal.App.3d 924, 929 (1990).) Only appealing did not suffice to preserve the issue for review by the appellate court.

Appealability/Deadlines: Appellant Failed To Preserve Costs Challenges By Failing to Timely File From Original Judgment

 

Subsequent Judgment Was Not Materially Substantial So As To Trigger New Appeal Time Commencement.

     Darden Painting, Inc. v. Glass Architects, Case No. A132846 (1st Dist., Div. 2 July 9, 2013) (unpublished) is a case where a litigant challenging certain costs ruling was pretty much shut out on procedural grounds--failure to timely appeal. What happened is that the aggrieved litigant only timely appealed from a modified judgment, but not the original judgment. That was a mistake, because a modified judgment begins a new appeal period only if it contains a substantial modification of the original judgment. (Torres v. City of San Diego, 154 Cal.App.4th 214, 222 (2007).) This situation did not occur here, such that litigant’s failure to appeal the original judgment was damning in nature.

Damages/Deadlines/Equity/Prevailing Parties: Dueling Prevailing Parties Remain That Way After Appeal

 

Remand to Determine if Offseting is Appropriate; Each Note Claim Judged on its Own.

     Williams v. Meyer, Case No. B243491 (2d Dist., Div. 6 June 4, 2013) (unpublished) involved a debtor plaintiff/cross-defendant and creditor defendant/cross-complainant having dueling claims on two notes delivered in favor of defendant and secured by plaintiff’s house (with fees clause existing in both notes). Plaintiff sued to invalidate both notes, claiming the first note was usurious and had been repaid by the labor of her estranged husband. Plaintiff further claimed that the recording of the second note constituted slander of title to her home, causing her to lose refinancing opportunities. On the eve of trial, the parties settled the dispute over the first note by reducing the face amount a little over $1,500 and lowering the interest rate/resetting the interest accrual date. Then, after a two-day bench trial, the lower court ruled that defendant had slandered title to the tune of $29,639 in lost refinancing opportunities. Plaintiff was declared the prevailing party entitled to costs, and she filed an unopposed costs bill asking that $7,121.75 in costs and the $29,639 in damages be offset against the first note’s outstanding balance.

     Now we come to the fee awards. Both sides moved for fees, with defendant being awarded $43,750 for prevailing on the first note and with plaintiff being awarded $122,500 in fees as damages for slander of title/Civil Code section 1717 fee recovery with regard to the second note.

     Both sides appealed to the Second District, Division 6 reviewing court.

     Although plaintiff did get a little lowering of the terms on the first note based on usury, defendant nonetheless prevailed when the court determined that $33,450 (out of $35,000) was owed on the note--rebuffing the theory that estranged husband’s labor had paid it off. Also, simply because plaintiff was the prevailing party for costs did not matter, because the concept is not the same when it comes to section 1717 fee recovery (“net monetary relief” for costs versus “greater relief” on the contract under section 1717).

     Defendant claimed plaintiff’s fee request was four days late, but the lower court can implicitly extend the deadlines for “good cause” even after the deadline has run, which it apparently did. (Lewow v. Surfside III Condominium Owner Assn., Inc., 203 Cal.App.4th 128, 135 (2012).)

     Alternatively, plaintiff was entitled to fee recovery for prevailing on the second note slander of title claim either under section 1717 by virtue of the fees clause or as damages under the title slander claim. (Sumner Hill Homeowners’ Assn., Inc. v. Rio Mesa Holdings, LLC, 205 Cal.App.4th 999, 1030-1031 (2012) [fees are damages under slander of title].)

     Finally, although the fee awards were affirmed, the matter was remanded for the lower court to consider whether it would honor plaintiff’s request for an offset of the damages/fee recovery against what was owed under the first note--an equitable consideration for the trial court in the first instance.

Costs/Deadlines: Service of Judgment Of Dismissal By A Party Through The Mail Means Extra 5 Days To File Costs Memorandum

 

Also, No Costs Recovery for Expenses Recouped Via An Insurance Carrier.

     Nevis Homes LLC v. CW Roofing, Inc., Case No. B237907 (2d Dist., Div. 1 May 15, 2013) (partially published) determined two issues of importance, one published and one unpublished in nature:

     1. In the published portion, the mail service of a judgment of dismissal by a party extended the time to file a costs memorandum by 5 days, with nothing in the California Rules of Court showing otherwise; and

     2. In the unpublished portion, a costs claimant cannot recoup a costs award that has been paid by an insurance carrier--this is a “double recovery” eschewed by CCP § 1033.5(c)(3)’s “reasonable in amount” language.

     Acting Presiding Justice Rothschild authored the 3-0 decision on these issues.

Deadlines: Defendant Winner In Prior Copyright Dispute Was Not Entitled To Offset Potential Fee Recovery From Royalties Where No Fees Sought In Previous Case

 

     Defendant winner in a previous copyright dispute filed a memorandum of routine costs, but never moved for recovery of attorney’s fees in that action. This decision, tactical or otherwise, was dispositive in the next case we examine.

     Defendant, in De Walt v. Jobete Music Co., Inc., Case No. B240650 (2d Dist., Div. 2 May 7, 2013) (unpublished), subsequently offset royalties by claimed fees that winner never claimed in the prior lawsuit. Defendant then sued for breach of contract/conversion, but the trial court found that defendant was barred from seeking offset of fees by not pursuing them to an adjudication in the earlier action.

     Lower court ruling affirmed on two grounds. First, the fees based on the indemnification claim was a compulsory cross-complaint which was not pursued. Second, defendant was barred from seeking fee offsets because it did not comply with the California Rules of Court deadlines relating to fee recovery.

Deadlines/Retainer Agreements: Attorney’s Amendment According To Proof On Fourth Day Of Trial Is Abuse Of Discretion When Based On Much Different Fee Exposure And Different Fee Retainer Provision

 

Delay and Prejudice Were Key Factors to Reversal of the Amendment Grant.

     California litigation practitioners know that pleading amendments are generally liberally granted, although that liberality gets tightened when the requests are made closer to or during trial. The next case is one where an amendment grant four days into a jury trial was reversed as an abuse of discretion.

     Duchrow v. Forrest, Case No. B233736 (2d Dist., Div. 1 Apr. 30, 2013) (published) involved an attorney’s lawsuit against an ex-client for recovery of about $45,000 under a certain specified provision of the parties’ retention agreement. Then, four days into a jury trial, attorney sought to amend the complaint according to proof, seeking a total of $329,111.95 in fees and costs based on a different retainer position and a different theory of recovery. The motion to amend was granted, with the jury awarding attorney $140,056.95, obviously crediting the amendment to some extent. Client appealed, arguing that the trial court abused its discretion by permitting the amendment.

     That argument was a winner in a 3-0 decision authored by Presiding Justice Mallano.

     The appellate court found there was no real good excuse why the amendment could not have been requested earlier. Just as salient, ex-client suffered real prejudice from the amendment: client had to meet much different claims, had no ability to obtain discovery on the different claims (especially about the reasonableness of a much larger fee request), and had no ability to perform legal research on the validity of the retainer provision being relied upon in the amendment. Amendment grant reversed.

Deadlines/SLAPP: SLAPP Costs/Fee Awards Sustained, Although Some In Pro Per Attorneys Did Not Get Their Fees

 

     Defendants won a SLAPP motion and were awarded partial fees under the mandatory fee-shifting statute, although some in pro per attorneys were denied some fees under Trope. So, the other side appealed, mainly contending that the fees/costs motions were untimely.

     Appealing party was not successful in Zhang v. Sugars, Case No. B243152 (2d Dist., Div. 1 Apr. 17, 2013) (unpublished), authored by Presiding Justice Mallano for a 3-0 panel.

     The main flaw in the appeal was the failure to recognize that costs/fee motions deadlines are extended where a notice of entry is not served by someone--in this case, the relevant deadline was 180 days from the entry of the order granting the anti-SLAPP motion, which meant the costs/fees motions were timely under the more lengthy deadlines.

     Plaintiff also challenged a minor $830 costs award to one of the winning SLAPP defendants, but this award was just fine because it represented costs as a first appearance fee and motion filing expenses. Fully justified, under pertinent decisional law. (Lafayette Morehouse, Inc. v. Chronicle Publishing Co., 39 Cal.App.4th 1379, 1383 (1995).)

Deadlines/Prevailing Party On Appeal: More Specific Pre-Final Judgment Time Deadlines Prevail Over 40-Day Remittitur Rule

Deadlines/Prevailing Party On Appeal: More Specific Pre-Final Judgment Time Deadlines Prevail Over 40-Day Remittitur Rule

     Horak v. South Shores Development Corp., Case No. B238973 (2d Dist., Div. 2 Apr. 2, 2013) (unpublished) is a second-time appellate scrutiny for one plaintiff who obtained a partial appellate reversal in a mobilehome tenancy dispute. Eventually, she lost and was hit with $85,000 in attorney’s fees in favor of the winning defendant, a prevailing party determination affirmed under Civil Code section 1717 and the Mobilehome Residency Law (MRL) fee shifting provision.

Motoring tourists. Arcadia, Florida. 1932. Library of Congress.

     However, plaintiff did obtain an award of appellate fees and costs of $43,534.29 against defendant, prompting a cross-appeal. Defendant’s main argument was that the 40-day post-remittitur filing deadline applied, but the appellate court said no--there is even a more specific deadline, the one in CRC 3.1702(b)(1) geared to more lengthy appeal periods for a final judgment which was reached later (and was the one where plaintiff got hit with $85,000 in fees). Everything affirmed in this one.

Appealability/Arbitration/Deadlines/Employment/Indemnity: Attorney’s Fees Powerball -- Lots Of Unpublished Decisions On Numerous Issues

 

Bolgar v. Glen Donald Apartments, Inc., Case No. B241636 (2d Dist., Div. 1 Feb. 26, 2013) (Unpublished).

     Although challenging a $71,934.65 fee award as an abuse of discretion, appellant did not go very far based on an inadequate record. None of the fee motion papers were included on appeal, so that the appellate court presumed adequate support in favor of the trial court’s ruling--that simple and in line with appellate tenets.

Insurance Co. of the West v. Engineered Systems & Construction, Inc., Case No. D059661 (4th Dist., Div. 1 Feb. 26, 2013) (Unpublished).

     Problem here was that surety was granted a summary judgment based on the theory that $250,000 was a reasonable settlement (even though factual issues were presented by proof below), compounded by the trial court allowing fees to be considered via a postjudgment cost proceeding rather than being presented as damages during the trial. However, surety somewhat caught a break here--because the summary judgment was reversed, it had another chance to prove fees as damages at trial.

Kenne v. Stennis, Case No. B221752 (2d Dist., Div. 7 Feb. 26, 2013) (Unpublished).

     In a convoluted battle between former attorneys and clients (what else is usually involved?), an heir that could have been liable for his relative’s attorneys fees was found to have been a party to mandatory fee arbitration and ultimately prevailed. Prevailing party entitled to fees and costs? You betcha, Business and Professions Code section 6204(d) so entitled the fee award to the heir, and the trial court did not abuse its discretion in awarding a much reduced request to the prevailing party.

City of Hope Nat’l Med. Center v. PacifiCare of Cal., CAse No. B232591 (2d Dist., Div. 7 Feb. 27, 2013) (Unpublished).

     Defendant won a summary judgment and then garnered about $271,000 in attorney’s fees (out of a requested $325,000) based on a contractual fees clause. Plaintiff said, unfair, you did not move for fees timely under CRC 3.1702, although it did file a timely costs memorandum. However, good cause was presented for extending the fee motion proceeding based on the unexpected illness of counsel’s mother and technological complications at the attorney’s office.

Faris v. Cingular Wireless LLC, Case No. G045602 (4th Dist., Div. 3 Feb. 27, 2013) (Unpublished).

     In this case involving claims for expenses incurred under Labor Code section 2802 indemnify provisions, the appellate court held that a party cannot get time and costs for litigating these type of indemnity claims, much like the Trope v. Katz rule applicable to in pro per litigants under Civil Code section 1717. This resulted in a $65,743 reduction of costs to a prevailing litigant, in a 3-0 decision authored by Justice Moore.

Deadlines/Judgment Enforcement: Financial Elder Abuse Victor Precluded From Seeking Postjudgment Enforcement Fees Where Judgment Had Already Been Satisfied

 

Mandate of CCP § 685.080 Is Clear.

     In Conservatorship of McQueen, Case No. A134337 (1st Dist., Div. 4 Feb. 2, 2013) (unpublished), a conservator for an elder recovered a financial elder abuse judgment against an attorney, who subsequently paid the judgment in full, including interest. Conservator then moved for $57,681.90 in attorney’s fees and costs incurred for defending the judgment on appeal and bringing a fraudulent transfer lawsuit. The trial court granted the motion in substantial part over appellant attorney’s objection. awarding $56,974.50 in fees incurred on appeal and in connection with related collection efforts.

      Fee award reversed.

     The basis was simple: Code of Civil Procedure section 685.080 requires that such motions be brought before the judgment is satisfied in full, something not done here and a specific statutory section that trumped other generalized deadlines. Also, this segued in with the policy to encourage a judgment debtor to satisfy the judgment with solace, something that would not result if the debtor--thinking peace was bought-- happened to be confronted with further roundelays of postjudgment fee/costs motions. (Carnes v. Zamani, 488 F.3d 1057, 1061 (9th Cir. 2007); Lucky United Properties Investment, Inc. v. Lee, 185 Cal.App.4th 125, 144 (2010).)

Costs/Deadlines/Probate: Because Probate Code Does Not Require A Formal Judgment, 15-Day Costs Memorandum Filing Deadline Ran From Clerk Served Notice Of Ruling Denying Cross-Petition

 

     Although one living partner in a joint venture with a deceased partner lost a probate cross-petition battle regarding distribution of shares from the joint venture, living/nonprevailing partner was successful in resisting the subsequent costs award in favor of the prevailing parties.

     Reason? It was untimely filed.

     As explained in Friedman v. Murphy, Case No. B237967 (2d Dist., Div. 8 Nov. 14, 2012) (unpublished), the probate court’s notice of ruling on losing partner’s cross-petition (under Probate Code section 850, itself an appealable order), given through the court clerk, was a sufficient trigger to start the running of the 15-day deadline to file a costs memorandum under the California Rules of Court. The Probate Code does not require a formal judgment to trigger the deadline, such that the notice of ruling by the court clerk sufficed as an order. Prevailing parties filed past the deadline, so they were out of luck in this particular case.

Appealability/Deadlines/Probate: Failure To Timely Appeal Prior Order Subject To Reconsideration Motion Was Fatal To Appellate Jurisdiction

 

Trap for the Unwary:  Order Denying a Motion for Reconsideration Is Not An Appealable Order.

     The administrator of an estate requested authorization to pay his attorney for both ordinary and extraordinary services to the estate. The trial court granted these requests in a formal order. One of the relatives of the decedent filed an amended motion for reconsideration of the fee order, which was denied.

     Relative then confusingly appealed from the order and reconsideration denial, only to have our local appellate court find her appeal was untimely in Estate of Corbin, Case No. G046842 (4th Dist., Div. 3 Nov. 8, 2012) (unpublished) (3-0 opinion, authored by Justice Ikola).

     Effective January 1, 2012, the California Legislature made it clear that an order denying a motion for reconsideration is not a separately appealable order, Code Civ. Proc., § 1008(g), with the appeal having to be taken from the prior base order. However, relative filed her appeal from the earlier order 15 days too late, which meant the appellate court lacked jurisdiction to consider it. Also, the motion for reconsideration did not extend the time to appeal. (Cal. Rules of Court, rule 8.108(e)(3).) “Bottom line” result: appeal dismissed.

Above:  Traps.  “Conversion. Animal traps to armor-piercing bullet cores. Some of the traps made by an Eastern concern that specialized in these products during peace years. All the facilities of the plant are now devoted to the making of armor-piercing bullet cores, incendiary bomb noses, army cot parts and other war essentials.”  April 1942.  Howard Liberman, photographer.  Library of Congress.

Costs/Deadlines/Eminent Domain: Defendant Condemnee’s Failure To Timely File Costs Memorandum Was Fatal For Recovery Of Appellate Costs

 

Also, U.S. Supreme Court Brief Printing Costs Cannot Be Awarded as Costs By State Courts.

     Defendant condemnee was allowed the opportunity, after a prior appeal, to seek costs under Code of Civil Procedure section 1268.720, a statutory provision allowing appellate costs in an eminent domain proceeding in the court’s discretion (Los Angeles Unified School Dist. of L.A. County v. Wilshire Center Marketplace, 89 Cal.App.4th 1413, 1419 (2001)), even though he had been denied quite a few of previously requested costs in the earlier appellate proceeding. Defendant yet again sought certain appellate costs for filing fees, motion fees, court reporter fees, and U.S. Supreme Court brief printing costs. The trial court again granted the motion to tax costs, except this time it was for all of them.

     Defendant’s appeal was unsuccessful in People ex rel. Dept. of Transp. v. Constant, Case No. E054542 (4th Dist., Div. 2 Oct. 24, 2012) (unpublished).

     The reasons were primarily two-fold: (1) defendant did not timely file a post-appellate costs memorandum within 4 months of the remittitur issuance (Cal.Rules of Court, rule 8.278); and (2) the costs of printing briefs in the U.S. Supreme Court may not be awarded by the state courts (Citizens Against Rent Control v. City of Berkeley, 181 Cal.App.3d 213, 223-224 (1986)).

     Although normally landowner yet again gets his costs on appeal in an eminent domain action, appellate court can depart from that rule, and this case presented a rare circumstance for it to say that each side would bear their own costs of appeal--ending this one once and for all, likely. (Eastern Municipal Water Dist. v. Superior Court, 157 Cal.App.4th 1245, 1256 (2007) [appellate court’s departure from landowner costs obtaining appellate costs rule “should be rare”].)

Costs/Deadlines: Trial Court Can Weigh Prejudice In Deciding Whether To Enforce Costs Memordandum Filing Requirements

 

Costs Award Affirmed, With Appearance Fee In Motion to Quash Proceeding Properly Awarded.

     Plaintiffs were bummed when the lower court awarded $23,750.12 in costs to some defendants winning a motion to quash based on lack of personal jurisdiction. They appealed, mainly arguing that defendants exceeded the 15 day deadline for filing a costs memorandum set forth in California Rules of Court, rule 3.1700(a)(1)) and that the lower court erred in awarding appearance fees costs to the prevailing defendants.

     The Second District, Division 1, in a 3-0 opinion authored by Justice Johnson in Hollander v. XL London Market Ltd., Case No. B229004 (2d Dist., Div. 1 Oct. 3, 2012) (unpublished), rebuffed these challenges and sustained the costs award.

     With respect to the deadline argument, the appellate court did note the existence of two camps of thought: those enforcing the time limits of rule 3.1700 strictly (Russell v. Trans Pacific Group, 19 Cal.App.4th 1717, 1726 (1993); Nazemi v. Tseng, 5 Cal.App.4th 1633, 1641 (1992)) and others taking a more lenient approach where a violation was technical and no prejudice stemmed from the violation (Gunlock Corp. v. Walk on Water, Inc., 15 Cal.App.4th 1301, 1304-1305 (1993) and cases cited therein). The panel adopted the Gunlock approach, especially finding it appropriate in the costs area (but suggesting in dicta that it may not prevail for attorney’s fees requests). Defendants costs memoranda filings, after a considerable stay, were only 90 days late and no prejudice was shown.

     As to the claim that appearance fees are not recoverable, Government Code section 70612 does not authorize any exemption for paying them when a defendant moves to quash service, with a filing fee payment not constituting a general appearance. Given that the local Los Angeles Counter Superior Court requires a fee payment for filing a “first paper,” the cost was certainly reasonably necessary to the litigation and recoverable.

Deadlines/Eminent Domain: Inverse Condemnation Fee Awards To Plaintiffs Affirmed After Trial Court Allowed Supplemental Briefing

 

Argument Not Raised Below and No Abuse of Discretion Anyway.

     Warren v. City of Compton, Case No. B235001 (2d Dist., Div. 5 Oct. 1, 2012) (unpublished) involved a situation where two respective plaintiffs won compensatory damages against City for water leaks and then were separately awarded $109,900 and $93,619 in attorney’s fees under the inverse condemnation fee shifting statute (Code of Civil Procedure section 1036). The procedural history of the fee grants was that plaintiffs initially filed a timely fee motion (within 60 days of the judgment), but it was denied without prejudice due to inadequate notice and inadequate information on fee reasonableness. A second motion was filed with additional information, but the lower court continued the motion in order to get yet further data, with the continuance grant setting forth a new briefing schedule for the parties. The additional information and briefing were filed, with the trial judge finding a $400 hourly rate was proper, high skill was demonstrated by plaintiffs’ winning attorneys, and the total number of hours expended was reasonable in nature.

     City appealed, claiming it was error for the lower court to allow supplemental briefing that put the fee motion over the California Rules of Court deadlines (see rule 3.1702(b)). This argument didn’t win for two reasons: (1) it was not raised below, so it was waived; and (2) the trial court can continue fee motion deadlines for “good cause,” which was shown based upon the procedural history of the case. Fee awards affirmed.

 

“The ‘California Modern’ Bethlehem Baptist Church, built in 1944 in the Compton area of Los Angeles, is Vienna-born architect R.M. Schlindler's only church. Schlindler, who trained under Frank Lloyd Wright, designed building throughout his adopted city.”  Carol M. Highsmith Collection, Library of Congress.

Deadlines/Fee Clause Interpretation/Prevailing Party/Reasonableness Of Fees: Reciprocal Easements Agreement With Broad Fees Clause Justifies Fully Requested Fee Award Of $82,145.50

 

Timeliness, Nonsignatory, Prevailing Party, and Reasonableness Arguments All Rejected on Appeal.

     Jones v. Ju, Case No. E053266 (4th Dist., Div. 2 Sept. 7, 2012) (unpublished) involved a real property successor owner who knew about a reciprocal easements agreement but forced one of the adjoining owners to get a declaratory relief judgment on its effect. The appellate court, like the trial court, thought the agreement was unambiguous, affirming the merits. The lower court also granted plaintiffs their full fee request, entering an award of $82,145.50 in attorney’s fees.

     Defendant’s four-pronged challenge was not successful on appeal.

     Timeliness. Defendant claimed the fees motion was served late because they received it after the deadline set forth in Cal.Rules of Court, rule 3.1702. This argument was not found persuasive because the fee motion was mailed in time, with service being defined as the postmarked date of mailing. The fact the motion was received some days later did not defeat the timeliness of filing and service.

     Scope of Agreement--Nonsignatory Status of Defendant. Defendant successor argued her nonsignatory status prevented application of the fees clause language to her. No, the fees clause was broad, encompassing situations where a party takes action to protect its interest in property, much like a lender protecting its default rights under a trust deed with respect to trustor successors. (Santa Clara Sav. & Loan Assn. v. Pereira, 164 Cal.App.3d 1089, 1097-1098 (1985).) Because defendant became bound by the terms of the agreement, she was also bound by the fees clause contained in it.

     Prevailing Party. Based on the fact plaintiffs did not prevail on some monetary claims, defendant argued they were not the prevailing parties. No, they were because their main objecttive was to establish the existence of the reciprocal easement, which they did succeed on via the declaratory relief claim.

     Amount of Fees. Although plaintiffs only submitted their billings in reply papers, defendant basically waived contesting the amount by not asking for a continuance and not providing a transcript of the motion hearing to show that she objected to the reply submissions. Beyond that, her challenges were only general in nature, violating the rule that challenges must be specific as to the items being disputed. (Premier Medical Mgt. Sys., Inc. v. CIGA, 163 Cal.App.4th 550, 564 (2008).)

Costs/Deadlines: Prevailing Defendant’s Reduced Costs Award Affirmed And Substantial Fee Award Against Another Defendant Alter Ego On Labor Violations Also Sustained

 

Procedural Challenges to Costs and Fees Awards Did Not Prevail.

     Guo v. Zhang, Case No. B235748 (2d Dist., Div. 4 Aug. 21, 2012) (unpublished) is a case where one defendant was held to be an alter ego of a business that was hit with compensatory damages for Labor Code violations and another defendant was held not to be an alter ego in a case brought by two plaintiffs/former employees. Predictably, plaintiffs moved for recovery of costs/attorney’s fees against the alter ego, and defendant winner moved to recover routine costs from the plaintiffs. The trial court saw it this way: plaintiff won costs of $10,444.25 and fees of $95,680.09 against alter ego defendant, while winning defendant only won reduced costs of $470 (although seeking $7,430 in costs from each plaintiff).

     All of the fees and costs orders were affirmed on appeal.

     Winning defendant balked at the trial court allowing plaintiffs to bring a consolidated motion to tax costs against him, but the consolidation of the two cases earlier certainly allowed the trial court to proceed as it did. Winning defendant also challenged the lower court’s failure in not awarding sanctions, but he was damned by his own actions in only appealing the costs order--he forfeited these challenges by not appealing the final judgment (which would include the sanctions award).

     Alter ego losing defendant challenged plaintiffs’ fees/costs motion as being untimely. Well, this was a close one. No one mailed a notice of entry of judgment, so the 180 day rule applied after the date of entry of judgment. Luckily for plaintiffs, they actually filed the fees/cost motion on the last day possible -- after the appellate court observed that the 180th day fell on a Sunday (excluded from counting under Code Civ. Proc., §§ 10, 12a) and that the next day July 4 was a holiday, which extended it one more day to the date of filing. Whew!

July 4 parade.  NY.  1910-1915.  Library of Congress.

Appeal Sanctions/Deadlines: Second District, Division 6 Reminds Us Of Procedural Nuances On The Subject Of Appeal Sanctions And Seeking Attorney’s Fees On Appeal

 

Cal. Rules of Court Do Contain the Proper Procedures in These Areas.

     Justice Yegan in Sandler v. San Wall Properties, Case No. B234643 (2d Dist., Div. 6 July 31, 2012) (unpublished) does remind us of some procedural nuances on two subjects: (1) appeal sanctions; and (2) attorney’s fees on appeal.

     There, winning respondent requested appeal sanctions against loser for violating some California Rules of Court on appeal in its respondent’s brief. No go, said the appellate court, because the brief request was incorrect. The reason was that this sanctions request must be made by separate motion including a declaration supporting the amount of any requested sanctions, which motion has to be filed before any order dismissing the appeal but no later than 10 days after appellant’s reply brief is due. Cal. Rules of Court, rule 8.276(b)(1); Committee to Save Beverly Highlands Home Assn. v. Beverly Highlands Home Assn., 92 Cal.App.4th 1247, 1273 n. 10 (2001).

     Respondent also requested an award of attorney’s fees on appeal in his brief. Nope, wrong procedure said the appellate court. The correct procedure is to file a motion in the superior court within the time delineated in California Rules of Court, rule 2.1702(c). Tesoro Del Valle Homeowners Assn. v. Griffith, 200 Cal.App.4th 619, 642 n. 7. (2011).

Deadlines/Pro Per Representation: Losing Party Not Entitled To Costs Because Filed Too Late, Not Entitled To Fees Based On Pro Per Representation

 

    

Deadlines/Pro Per Representation: Losing Party Not Entitled To Costs Because Filed Too Late, Not Entitled To Fees Based On Pro Per Representation

 

     Although losing defendants probably did not prevail to begin with, their appeal of a lower court’s denial of fees and costs was rebuffed in Connolly v. Trabue, Case No. A131984 (1st Dist., Div. 2 Apr. 10, 2012) (partially published; fee/costs discussion not published).

     The costs memorandum was filed past the 15 day deadline in Cal. Rules of Court, rule 3.1700(a), reason enough to deny a costs award. With respect to attorney’s fees, defendants represented themselves in pro per, and this cannot result in fee recovery. (PLCM Group, Inc. v. Drexler, 22 Cal.4th 1084, 1092 (2000).)  [Actually, the lower court found losing defendants could not get this relief because they did not prevail; sounds good to us, but the appellate court affirmed the denial orders on the grounds we discussed above.]

     Also, the case is must reading for litigators involved in prescriptive easement disputes, establishing that laches is not a proper defense in these types of cases.

Deadlines To Appeal/Sanctions: FRCP Rule 11 Sanctions Order Does Not Require A “Separate [Judgment] Document” To Trigger Running Of Normal 30-Day Appeals Period

 

Seventh Circuit Discusses FRCP Entanglement, Does Not Believe Attorney’s Fees Sanctions Orders Are To Be Treated Differently Than Normal Federal Fee Orders.

     The Seventh Circuit U.S. Court of Appeals, in Feldman v. Olin, No. 11-2722 (7th Cir. Feb. 23, 2012), tackled a messy federal rules of civil procedure issue relating to whether attorneys timely appealed a Rule 11 sanctions order entered against them. The answer was “no,” producing a colorfully written opinion by Circuit Judge Posner in the process.

     Plaintiffs’ attorneys were sanctioned under FRCP 11 for filing a frivolous employment suit. The procedural context was that the district court initially ordered the case dismissed and ordered plaintiff to pay fees under Rule 11, orders timely appealed by plaintiff. The problem was that, two months later, the district court ordered sanctions of $1,475 against plaintiff’s attorneys, in essence vacating the prior order of fee assessment against plaintiff. The fee order was made in the form of a memorandum and order, not a separate judgment. (For many orders, a “separate document” in the form of a judgment needs to be entered to trigger the running of the normal 30-days appeal period, or else the period is a longer 150 days from entry of the memoranda/orders.) Attorneys did appeal, albeit after the 30-day normal period expired but within the longer 150-day time frame. The issue for determination was whether the attorneys’ appeal was timely.

     It was not, according to the Seventh Circuit.

     Attorneys first argued that a “separate document” was required for the order, such that the longer 150-day period applied--which would have made their appeal timely. However, FRCP 58(a)(3), since 2002, eliminated the “separate document” requirement for an order disposing of attorney’s fees under Rule 54. But, countered attorneys, there are exceptions to this general rule in FRCP 54(d)(2)(E), which lists further exceptions for violating “these rules”--with attorneys arguing that Rule 11 was one of “these rules” such that the “separate document” requirement had to be satisfied.

     The Seventh Circuit decided that the Rule 54 “exceptions” language merely calls off the specific procedures for requesting attorney’s fees, being inapplicable to fees imposed under FRCP 11 The panel found no reason to believe attorney’s fee orders, no matter what the entitlement basis, were subject to a “separate document” requirement which would fly in the face of the Rule 58(a)(3) overarching language.

     However, attorneys had not given up yet. Attorneys argued that the fee order was “substantive” given that it was directed at them rather than the client. Circuit Judge Posner did not believe this changed its characterization in the least. Besides, it was far from certain that a sanctions order is a judgment such that a separate document is required at all. He did admit, though, that “the rules could be better drafted.” End result: Attorneys’ appeal dismissed.

Deadlines: Bankruptcy Extension Rules Discussed in Attorney’s Fees Motion Filing Context by Second District, Division 6 in Published Decision

 

Fee Claimant, Two Days Too Late, Allowed to Recoup Substantial Fees Given Uncertainty in Bankruptcy Extension/Tolling Rules.

     Here is an interesting published decision relating to the deadlines for filing an attorney’s fees motion. The normal deadline, absent stipulation or extension by the trial judge, is governed by California Rules of Court, rule 3.1702(b)--the time period for usually filing an appeal (60 days, usually, unless posttrial motions are involved). Here, HOA won a $292,205.20 attorney’s fees award as the prevailing party, but the losing common interest development unit owner appealed, protesting, “Untimely! untimely!”

     Owner’s appeal was unsuccessful, but did produce an enlightening opinion discussing deadlines/bankruptcy extension nuances in Lewow v. Surfside III Condominium Owners’ Assn., Inc., Case No. B230595 (2d Dist., Div. 6 Feb. 2, 2012) (certified for publication), authored by Acting Presiding Justice Yegan.

     HOA argued that the 60-day period was “tolled” by the Chapter 13 bankruptcy filing by owner, but this was not really the correct basis (although as any appellate attorney can tell you, even an incorrect basis--although the result is right--will carry the day, which was the case here). Neither the automatic stay nor Code of Civil Procedure section 356 “tolled” the running of the 60-day period. However, that was not the end of the analysis by any means. The real issue was whether Bankruptcy Code section 108(c) extended the matter, and it did--but only for the 30-day default extension unless a longer period was required (but nothing indicated that this was the case).

     Well, HOA was two days late--yep, 2 days. However, not all was lost. A trial judge has discretion to extend a fee motion filing for “good cause.” Given the trial court did entertain and grant the substantial fee request, good cause was established given the very “complex and debatable” issue of how the Bankruptcy Code tolling provision operated. The lower court’s entertainment of the request showed good cause implicitly, resulting in the affirmance of the $292,205.20. This opinion is worth reading again by any practitioners facing deadlines in all kind of claims in a bankruptcy context.

Deadlines: Amended Costs Memorandum Filed Pursuant To Court Order Was Timely

Situation Normal . . .

     Kempton v. Cooper, Case No. B229912 (2d Dist., Div. 3 Jan. 25, 2012) (unpublished) was a situation where the appellate court affirmed a trial court’s award of fees on appeal of $53,440 and costs on appeal of $1,410. There was a snafu on the costs to be awarded, necessitating another battle, which was won by the cost claimant (albeit for a lower amount). The losing side did not prevail on its argument that the filing of the amended costs memo, in line with trial court directives, violated the initial costs memo filing deadlines.

Costs/Deadlines/Special Fee Shifting Statutes: Substantial Fee Awards Against Losing Subcontractor, After Contractor Paid Disputed Small Amount, Affimed On Appeal

 

Some of the Appeals Were Untimely; College District Award of Costs and Fee Justified in Nature.

     Subcontractor sued a general contractor and community college district on an approximate $100,000 extra work claim. Subcontractor lost many of the claims through pre-trial dispositive motions and dismissed the remaining claim after general contractor paid a disputed $5,230 amount to avoid further costs. The lower court then awarded substantial fees and costs against subcontractor and in favor of general contractor/college district. (The college district was awarded $121,190 in fees, and the general was awarded $150,712.75--although the final judgment “evened up” any duplications and gave credit for any necessary offsets.)

     The fee and costs awards were affirmed in Richards v. S.J. Amoroso Constr. Co., Inc., Case Nos. A129670/A130837 (1st Dist., Div. 5 Jan. 4, 2012) (unpublished).

     One of the primary issues was whether the appellate court even had authority to review the fee/costs awards given that subcontractor appealed the primary judgment but failed to appeal the subsequent postjudgment orders in the fee/costs area, which involved a consideration of Grant v. List & Lathrop, 2 Cal.App.4th 993, 996 (1992)--earlier authority holding that a later postjudgment order settling the amount of fees to be paid was indeed subsumed in an earlier appeal of the first judgment.

     Richards decided that DeZerega v. Meggs, 83 Cal.App.4th 28, 44 (2000) had correctly interpreted Grant as standing for the propositions that an earlier appeal of a fee entitlement judgment does subsume a later order setting the amount of the entitlement while it could not encompass a later postjudgment order where it was clear that the later order would decide everything. Judged by this interpretation, the appellate court could not review the general contractor awards because the first judgment was silent about fees and costs (which meant there needed to be a separate appeal from the later order), but could scrutinize the college district awards because there was an adjudication of fees and costs in the initial judgment which was initially appealed.

     The costs award in favor of college district was sustained because the $5,230 voluntary payment was unusual in nature, invoking trial court discretion to still award costs under Code of Civil Procedure section 1032(a)(4) and Kim v. Euromotors West/The Auto Gallery, 149 Cal.App.4th 170, 183 (2007).

     The college district’s favorable fee award was proper under Government Code section 1038, which allows a trial court the ability to award fees to a prevailing public entity where an action was brought without reasonable cause or a good faith belief that there was a justifiable controversy. Among other things, subcontractor’s admission during discovery that its stop notice was invalid established substantial evidence supporting the lower court’s award of fees under section 1038.

Deadlines/Section 1717/Substantiation Of Reasonableness of Fees: Fourth District, Division 3 Talks About Timely Moving For Fee Recovery, Scope of Section 1717 Recovery, And Fee Billing Redactions

 

Reversal and Remand Was the Result in this One.

     Acting Presiding Justice O’Leary in Fuller v. Monogram Real Estate, Case No. G044808 (4th Dist., Div. 3 Dec. 19, 2011) (unpublished), on behalf of a 3-0 panel of our local appellate court, got to explore three issues of interest in the attorney’s fees area in reversing the denial of attorney’s fees under a fees clause to a defendant prevailing on a summary judgment motion.

     The first ground for reversal was the lower court’s determination that the fee request was untimely because it was not sought in the costs memorandum. In a contested matter, a fee request must be brought through a separate motion under current rules (Cal.Rules of Court, rule 3.1702(b)(1)), a change from different rules in effect before 1994 (where the fees should have been claimed in the costs memo).

     The second ground for reversal was the lower court’s conclusion that the fees clause did not apply because there was no contract. Not to worry, section 1717 allows for recovery even when the prevailing party demonstrates the contract is inapplicable, invalid, unenforceable, or nonexistent, assuming the opposite party could recover fees--which was the case here. Beyond that, the restriction of the fees clause to certain rental monies (a percentage of the unpaid rent) did not matter as far as recovery, because section 1717 was expanded to cover claims applying to the entire contract. (Harbor View Hills Community Assn. v. Torley, 5 Cal.App.4th 343, 348-349 (1992).)

     Finally, that brought the appellate court to the question of reasonableness--after all, losing party said he was charged fees of $28,250, while winning defendant asserted it was billed $163,000 for legal services. Because it was unclear whether the lower court actually exercised its discretion in ruling on reasonableness (given the other grounds for decision), its denial order had to be reversed and remanded. However, that is not quite the end of this matter. Defendant did submit redacted billing statements, with the appellate court dismissing that these statements could only be reviewed in camera without giving plaintiff an opportunity to review and contest such documentation.

     Two options were outlined by the appellate court: waive the privilege/produce the billing statements for everyone to review or present a much more detailed declaration of counsel summarizing the required information. (Wershba v. Apple Computer, Inc., 91 Cal.App.4th 224, 254-255 (2001).)

Deadlines: Attorney’s Fees Motion Deadlines Not Suspended While Appealed Case Is Subject to Appellate Mediation Procedures

 

$45,017.50 Fee Award Against Losing Employee Sustained on Appeal.

      Losing employee was hit with attorney’s fees under Labor Code section 218.5 when she lost an employment case. The fee award was $45,017.50, one-fourth of the total fees expended by defendant on an apportioned basis in line with the defense request to the lower court.

     On appeal, employee claimed the postjudgment fee motion was untimely because it was filed after employee had applied to the appellate court’s mediation program, which had the effect of suspending further trial court proceedings according to employee.

     Wrong, the appellate court said in Mitchell v. GigOptix, LLC, Case No. H036131 (6th Dist. Nov. 29, 2011) (unpublished). The appellate mediation procedures only apply to proceedings on appeal, but do not cause a suspension of postjudgment proceedings in the trial court. Fee award affirmed.