CALIFORNIA ATTORNEY'S FEES

Prevailing Party: Ninth Circuit Denies Civil Rights Attorney’s Fees To Plaintiff Whose Case Was Mooted By Hawaii Legislative Amendments

However, Some Concurring Justices Were Concerned That Plaintiffs Will Never Get Fees Under Cases Where They Had Earlier Prevailed, Only To Have Technicalities Render The Matter Moot.

               On March 17, 2025, we posted on Lackey v. Stinnie, 145 S.Ct. 659 (2025), where SCOTUS held that a plaintiff winning a preliminary injunction, with plaintiff’s case subsequently mooted by legislative action, was not a prevailing party under the federal civil rights statute, 42 U.S.C. § 1988(b). 

               We can now report that Lackey was applied to deny appellate attorney’s fees to a plaintiff whose prior win as obliterated by Hawaii’s legislative actions in Teter v. Lopez, Case No. 20-15948 (9^th Cir. Apr. 30, 2025) (published).  However, this recent en banc opinion did stir some concurrences by circuit judges who felt that the fee denial was required based on the prior en banc opinion where the legislative action mooted a district judge’s summary judgment for Hawaii in a Second Amendment challenge to a Hawaiian statute prohibiting butterfly knives and based on the reasoning in Lackey.  Another of the concurring judges expressed concern that Hawaii had “gamed” the case such that plaintiff lawyers could rarely get fees against a governmental defendant based on subsequent legislative amendments—he would have vacated the ministerial order vacating the prior decision undone by the previous en banc decision.

Homeowner Associations, Prevailing Party: HOA Owner Properly Denied Attorney’s Fees Because HOA Dismissed Complaint Against Him After Defeating Cross-Claims, So No One Technically Prevailed

HOA Did Get Prior SLAPP Fees For SLAPPing HOA Owner’s Cross-Complaint.

               Loma Linda Homeowners Assn. v. Aquino, Case No. D085390 (4^th Dist., Div. 1 Apr. 22, 2025) (unpublished) is a study on how lower and appellate courts “do justice,” within the confines of legal principles, in HOA owner and HOA disputes.  They are ugly, coming to disparate results—HOA owner wins big, HOA wins big, both sides get mixed results, or both sides go home unvindicated.  In this one, HOA owner did not get the fees he wanted.

               HOA owner was sued for delinquent fees, cross-complaining against HOA, several others, and the HOA attorneys for assessing fraudulent, delinquent assessments.  HOA dismissed its complaint after winning a SLAPP motion against HOA owner’s cross-complaint.  As pertinent for the appeal, HOA owner moved for prevailing party attorney’s fees under the Davis-Stirling Act (Civ. Code, § 5975(c)) to the tune of nearly $100,000, arguing the HOA’s voluntary dismissal of its action meant that HOA owner prevailed.  The lower court denied HOA owner’s request for fees.

               Aside from a deficient record and untimely augmentation request (issues that appellate attorneys would be keen on), the appellate court found that neither side prevailed in this case, finding that Hsu v. Abarra “prevailing party” principles applied under the Davis-Stirling Act fee-shifting statute.  HOA dismissed its complaint, and HOA owner did not prevail on his cross-complaint, such that the denial of fees was proper.

Prevailing Party, Section 1717: Alter Ego Defendants Obtaining Dismissal Of Declaratory Relief Action Were Entitled To Attorney’s Fees Under A Fees Clause Between Plaintiff And The Signatory Defendant

$58,223 Was The Fee Award, With A Credit For Smaller CCP § 128.7 Sanctions.

               In ATM Professional, Inc. v. Repiping.com, Inc., Case No. B331046 (2d Dist., Div. 3 Mar. 26, 2025) (unpublished), alter ego defendants obtained a dismissal (based on failure to name an indispensable party, the contract signatory) in a declaratory relief complaint when the underlying contract had a fees clause.  The court awarded prevailing party fees of $58,223 to the successful alter ego defendants under Civil Code section 1717, even though the defendants granted a credit for a smaller CCP § 128.7 fees sanctions award.  Plaintiff’s appeal was unsuccessful because:  (1) a declaratory relief action is “on the contract” under Civil Code section 1717; (2) defendants were prevailing parties because they achieved their litigation objectives in obtaining a dismissal of the action; (3) no mediation condition precedents were unsatisfied because the claims were not directed at alter ego defendants; and (4) the assertion that fees were awarded for duplicative work was unsupported by specific objections to the requested fees. 

Civil Rights, Prevailing Party: SCOTUS Decides That A Preliminary Injunction Mooted By Subsequent Events Does Not Make One A Prevailing Party Under The Civil Rights Fee Shifting Statute

However, A Footnote In the Opinion Shows That This Is A Nuanced Issue Depending On Objectives Of Plaintiff Or Defendant.

               We now report on a recent SCOTUS decision under the civil rights statute, 42 U.S.C. § 1988(b), which provides when a “prevailing party” can recover fees.  This case is interesting and may have repercussions for California, whether under the federal or analog state statutes.

               In Lackey v. Stinnie, 604 U.S. __, Case No. 23-621 (U.S. Feb. 25, 2025), a plaintiff obtained a preliminary injunction for certain actions which, before the case could go to judgment, were mooted because the Virginia General Assembly repealed the challenged statute.  The district court found that plaintiff was not a “prevailing party” under the federal civil rights statute, 42 U.S.C. § 1988(b).  The Fourth Circuit reversed, with the U.S. Supreme Court granting certiorari and reversing the Fourth Circuit’s reinstatement of the fees motion.

               SCOTUS’ majority opinion determined that a litigant obtaining a preliminary injunction is not a civil rights “prevailing party” because the preliminary injunction did not provide an enduring judicially sanctioned change in the legal relationship of the parties.  External events that render a dispute moot did not convert the temporary order into a conclusive adjudication, because a preliminary injunction is not a dispositive ruling and district judges sometimes arrive at a different result after deciding a case on the full merits. 

               However, there is an interesting footnote with important clarifying language.  The footnote observes that who is a prevailing party is different for defendants versus plaintiffs because both sides come to court with different objectives.  It further noted that its decision in Lackey should not be read to affect the Court’s previous holding that a defendant need not obtain a favorable judgment on the merits to prevail, nor to address the question SCOTUS left open of whether a defendant must obtain a preclusive judgment to prevail, citing Van Expedited, Inc. v. EEOC, 578 U.S 419, 431-434 (2016).

               BLOG HAT TIP—We thank Griffin Klema, a Florida intellectual property litigator, for bringing this decision to our attention.  We would note that Mr. Klema did raise the “different objectives” distinction in his certiorari petition in Abdelsayed v. Affordable Appeal Photograph, which involved a split in circuit court opinions on whether a voluntary dismissal without prejudice can render a defendant a prevailing party under the copyright fee shifting statute.  SCOTUS did ask for a response to his cert petition, but ultimately denied it on November 24, 2024 and further denied a petition for rehearing earlier this month.  However, it does appear that the Court picked up on his “different objectives” point and used it for clarification in Lackey.

Prevailing Party, Reasonableness Of Fees: $493,577.10 Attorney’s Fees Award In FEHA Case Was No Abuse Of Discretion

2/8 DCA Considers Deferential Standards For Review Of Fee Awards, With The Record Establishing Plaintiff Prevailed And The Fee Amount Was Not Erroneous.

               2025 greets us with a published fee decision written by Justice Wiley of the 2/8 DCA, in his recognizable writing style, with the opinion being penned in Pollock v. Kelso, Case No. B320574 (2d Dist., Div. 8 Jan. 8, 2025) (published). 

               What happened here is that the California Supreme Court reversed a prior DCA affirmance of a trial court time-barred ruling, specifically determining that an appellate court may not award costs or fees on appeal to a prevailing defendant without first determining that plaintiff’s action was frivolous, unreasonable, or groundless when filed or at some point after it is prosecuted.  The DCA remanded and ordered costs for Plaintiff.  Plaintiff moved for FEHA attorney’s fees of $526,475.63, with the lower court awarding $493,577.10 in fees.  Before a scheduled trial date, the parties settled the bulk of the case, with plaintiff moving to dismiss the underlying case with prejudice except for the fee award that the defense was appealing.  The defense unsuccessfully appealed.

               The appellate court iterated that lower courts have unique positions to determine which side prevailed and what is a reasonable fee award.  With that, it proceeded to the merits of the fee award after deciding a procedural notice of appeal issue.

               On the prevailing party issue, the settlement agreement between the parties did establish that plaintiff prevailed.  Although the agreement was produced at oral argument, defense counsel refused to view it even though it showed that plaintiff did prevail for fee purposes.

               With respect to the size of the award, the defense only raised a cursory argument that it was unreasonable.  Plaintiff’s attorneys’ declarations on hourly rates could, and were, credited under a substantial review standard, given some reduction of the fee request which presumably allowed for a reduction in hourly rates.  However, there is a scholarly discussion indicating why lower courts do not have to accept lawyers’ self-interested declarations of their own worth, having discretion to adjust downwards or reject unreasonable fee requests altogether.  Furthermore, the argument that plaintiff’s lawyers billed too much rang hollow given the defense did not mention about how many hours they devoted to the case.

               The last issue was the lower court’s propriety of granting a 1.8 positive multiplier in connection with the fee request.  That, too, was affirmed.  Although observing that “[t]his tremendous but ill-defined quantitative potential erodes the apparent precision of the lodestar method,” the multiplier was justified based on the contingency arrangement with plaintiff and her attorneys, where the harvest from a crop is a bounty in some years but is nothing at all in other years—supporting why multipliers are awarded.

Costs, Prevailing Party, Reasonableness Of Fees: Most Of Costs Award Is Affirmed, As Well As Substantial $1,751,500 Fee Award Is Sustained On Appeal

Certain Costs Not Awardable, With Lower Court’s Fee Reduction For Incivility And Abusive Litigation Found To Be No Abuse Of Discretion.

               In Madison v. Theodore, Case Nos. B310551 et al. (2d Dist., Div. 7 Jan. 8, 2025) (unpublished), appellant lost a fiduciary duty-based case against plaintiffs to the tune of $3.9 million based on a project to operate a luxury villa in Cabo San Lucas.  Costs and fee were awarded to defendants, specifically, about $160,000 in costs and $1,751,500 in attorney’s fees out of a $2,124,450 fee request.  With some minor revisions, the judgments were affirmed on appeal.

               About $87,371 from the routine costs award was stricken on appeal—they were for non-court authorized hearing and trial transcripts (with the deposition costs argument not succeeding on appeal) and for preliminary injunction bond costs in a separate action.  With respect to fees, the lower court properly reduced the fee request by $340,850 for incivility and abusive litigation tactics, including mistrial allegations (Karton v. Ari Design & Construction, Inc., 61 Cal.App.5^th 734 (2021).  Appellant’s argument that he should be allowed an offset for non-prevailing costs and fees rang hollow because there can only be one prevailing party under Civil Code section 1717, which was the other side.

Prevailing Party, Section 1717: Tenant Prevailed Under Civil Code Section 1717 Based On A Contractual Fees Clause By Defeating Landlord’s Unlawful Detainer Action

Tenant Proved There Was A Defective 3 Day Notice For Nonpayment, Because Tenant Did Not Contest It Was Claiming Occupancy Of Unleased Areas--$122,855 Was The Fee Award.

                Big Washington LLC v. Superdudes, LLC, Case No. F086483 (5^th Dist. Dec. 20, 2024) (unpublished) shows how highly contested unlawful detainer actions can produce a substantial award to a prevailing party (in this case, the tenant) to the tune of $122,855.

               Plaintiff landlord filed an unlawful detainer action against defendant tenant for nonpayment of rent, based on the claim tenant was not paying for areas not encompassed within a lease (with tenant not claiming any rights in those areas).  Tenant eventually was granted a summary judgment based on a defective 3-day notice to pay or quit, with tenant later awarded $122,855 in fees for 473.5 hours applying the local market rate.

               Landlord appealed, but did not obtain a change in the fee award.  Landlord argued that CCP § 1032 (the routine costs provision) applied, but the appellate court properly observed that specific fee statutes govern the interpretation of what litigant prevails.  Given that tenant beat the unlawful detainer action and retained possession of the commercial premises, tenant was the prevailing party by achieving its primary litigation objectives. 

Costs, Prevailing Party: Plaintiff Dismissing Case After Obtaining Nonmonetary Relief Requested During The Litigation May Be The Prevailing Party

Lower Court Erred In Not Granting Routine Costs Under Mandatory Prevailing Party Costs Provisions; But, On Remand, It Needed To Determine If Plaintiff Prevailed Under The Discretionary Prevailing Party Costs Provision.

               Our title and subtitle above capture what happened in Fillerup v. Franchise Tax Board, Case No. C099158 (3d Dist. Dec. 11, 2024) (unpublished), but we provide a little more flavor.  However, here are the general rules for recovering routine costs:  (1) there are certain mandatory categories for cost recovery, including parties who get a net monetary recovery and a defendant in whose favor a dismissal was entered; and (2) other categories, including a party obtaining non-monetary relief outside of the mandatory situations, can be awarded costs in the discretion of the lower court.

               Fillerup involved a situation where a plaintiff taxpayer sued the FTB claiming that the Board misapplied an estimated tax payment; and, after much wrangling and with the litigation pending, the Board ultimately gave taxpayer the relief he wanted.  Taxpayer then dismissed his lawsuit without prejudice based on getting what he desired.  Taxpayer moved for $565 in routine costs, with the FTB winning a motion to strike plaintiff’s costs memo.  (We leave it to readers to determine if this amount was worth contesting.). Plaintiff appealed the lower court’s denial of costs based on plaintiff not winning in mandatory prevailing party cost categories.

               The Third District reversed.  The lower court erred in failing to determine if plaintiff fell within the discretionary prevailing party costs category because he obtained the non-monetary relief he wanted as far as reallocation of his tax payments.  The matter was remanded so the lower court could determine if discretionary costs were appropriate.

Civil Rights, Prevailing Party, Settlement, Special Fee Shifting Statutes: Stipulated Judgment To Enforce Settlement Had Post-Judgment Enforcement Language Carve-Out Allowing For Further Post-Enforcement Attorney’s Fees

Also, On Remand, Trial Judge Had To Determine If Plaintiffs Prevailed In Voting Rights Act Case; And, If So, Amount Of Further Fees To Be Awarded.

               In Robles v. City of Ontario, Case No. G064119 (4^th Dist., Div. 3 Nov. 6, 2024) (published; originally issued unpublished on October 24, 2024), plaintiffs alleged that defendants erred in not holding at-large elections for city council, instigating a suit for violations of the California Voting Rights Act (VRA) and 42 U.S.C. § 1983.  The parties reached a settlement agreement and stipulated judgment, under which defendants agreed to pay plaintiffs $300,000 for prior attorney’s fees incurred under Elections Code section 14030, the VRA’s fee-shifting position.  Plaintiffs moved to enforce the stipulated judgment based on alleged noncompliance, with the lower court determining a provision in the judgment was invalid and denying further post-judgment enforcement fees based on the prior fees language.  Defendants conceded there was no invalidity, but the lower court still denied renewed post-judgment enforcement fees.

               The 4/3 DCA, in an opinion authored by Acting Presiding Justice Moore, reversed and remanded.  The stipulated judgment contained carve-out language allowing plaintiffs to enforce the settlement under CCP § 664.6, which the appellate court deemed sufficient to allow for the further attorney’s fees being requested.  However, the lower court also had to determine if plaintiffs were prevailing parties because they achieved their litigation objectives in obtaining map relief under the stipulated judgment; and, if so, the amount of further fees to be awarded to plaintiffs.

Homeowner Associations, Prevailing Party: 4/1 DCA Affirms Prevailing Party Status And $48,229.08 Attorney Fees Award To HOA That Filed Successful Demurrer And Was Dismissed From Action With Prejudice

HOA Pragmatically Achieved Prevailing Party Status By Achieving Its Litigation Objectives Through Its Successful Demurrer And Dismissal From The Case

                Homeowners alleging their upstairs neighbors had created a nuisance with improperly installed floors filed a lawsuit against their HOA and others in Haidet v. Del Mar Woods Homeowners Assn., Case No. D082923 (4^th Dist., Div. 1 October 21, 2024) (certified for publication on November 5, 2024).  The HOA successfully demurred to the three causes of action against it in the homeowners’ initial complaint, with the trial court dismissing a breach of fiduciary duty cause of action without leave to amend and two other causes of action with leave to amend.  However, homeowners elected to omit HOA as a defendant altogether when they filed their First Amended Complaint.  Afterward, the trial court granted HOA’s motion for attorney fees under Civil Code § 5975(c) and request for dismissal with prejudice.  Homeowners appealed – arguing that the trial court abused its discretion by declaring the HOA was a prevailing party and in awarding fees beyond those attributable to the breach of fiduciary duty claim.   

                The 4/1 DCA affirmed.  A court is allowed to base its fees decision on a pragmatic definition of the extent to which each party achieved its litigation objectives where, as here, a statute does not define “prevailing party.” (Santisas v. Goodin (1998) 17 Cal.4^th 599, 621-622.)   The HOA achieved its litigation objectives through a successful demurrer – which prompted the homeowners to omit it from their FAC – and through the judgment of dismissal with prejudice of all causes of action against it.  As such, the 4/1 DCA found no abuse of discretion in the trial court’s determination that the HOA was the prevailing party, nor in its award of fees attributable to the HOA’s defense of the entire action.

Prevailing Party, Section 1717: Defendants Winning A Demurrer Dismissal Without Leave Was Contractually Prevailing Party Under Section 1717

Conspiracy And Unjust Enrichment Claims Fell Within An Operating Agreement Contractual Dispute Ambit.

               Many contractual fee disputes depend on whether the claims were “on the contract” under Civil Code section 1717; and if so, who prevailed.  In Zhou v. Hotel Winters, LLC, Case No. C099278 (3d Dist. Aug. 2, 2024) (unpublished), defendants won a demurrer without leave resulting in a dismissal, a merits determination affirmed on appeal, in a case involving conspiracy and unjust enrichment claims under a broad fee dispute contractual clause.  Defendants obtained a $45,000 attorney’s fees award (out of a requested $134,396.25 fee claim), although $625 hourly rates were reduced to $450 for principal attorneys.  The Third District affirmed:  defendants won by showing that the operating agreement was inapplicable, invalid, unenforceable, or nonexistent given that the conspiracy and unjust enrichment claims were “on the contract” under section 1717.  Also, the dismissal based on the demurrer being sustained without leave was a merits determination rather than just a premature or interim victory. 

Civil Rights, Prevailing Party: Plaintiff Entitled to Prevailing Party Fees Under The California Voting Rights Act Of 2001

Although Unintentional, School District Continued To Defend The Legality Of Its At-Large Elections Even Though Plaintiff Was Able To Show A Violation Of The Act, Obtain An Injunction, And Force Trustee-Area Election Based On Plaintiff’s Proposed Map.

               Although the amount of the fee award is not mentioned, the 4/1 DCA affirmed the award in favor of Plaintiff and against School District in Southwest Voter Registration Education Project v. Ramona Unified School Dist., Case No. D081500 (4^th Dist., Div. 1 July 11, 2024) (unpublished).  There, Plaintiff proved a violation of California’s Voting Rights Act of 2001, which statutory scheme has a prevailing party fee-shifting provision under Elections Code section 14030.  In line with the lower court’s determinations, the appellate court agreed Plaintiff had obtained its primary litigation objectives by obtaining an injunction against District’s at-large elections and forcing trustee-area elections based on plaintiff’s proposed map.  We would speculate that the fee award was somewhat substantial in nature.

Homeowner Associations, Prevailing Party: Homeowner Only Achieving Marginal Success, But Not Removing Quorum Requirements Or Board Member Removals, Was Not A Pragmatic Prevailing Party

Davis-Stirling Act And CC&R Provisions Did Not Require A Fee Award To Homeowner.

               In Mays v. Oakview Homeowners Assn., Case Nos. D083707 et al. (4^th Dist., Div. 1 June 17, 2024) (unpublished), homeowner received a fairly limited mandate win to direct the HOA to conduct an election to replace board directors whose terms had expired.  However, the main litigation objectives of her proceeding—getting rid of a quorum requirement and removing certain directors—did not happen.  Homeowner moved for attorney’s fees of $57,775.81 plus a positive 1.5 multiplier under the Davis-Stirling Act and the CC&Rs.  The lower court denied the motion.

               Homeowner’s appeal on the fee denial was not successful.  The CC&Rs only related to delinquent assessments, not broader homeowner-HOA disputes.  On the Davis-Stirling Act fee request, the lower court did not abuse its discretion in deciding that homeowner did not achieve her main litigation objectives—the additional relief she requested and did not win on—results which properly led to a denial of fees to homeowner. 

Prevailing Party, Special Fee Shifting Statutes: Court Of Appeal Reverses, As A Matter Of Law, Fee Denial To Mobile Home Park Because Voluntary Dismissal By Plaintiff Of MRL Claims Made Mobile Home Park A Prevailing Party

On Remand, Reasonableness Of Fees And Allocation On MRL Claims Were The Charge Of The Lower Court.

               In Stooksberry v. El Rova Mobile Home Park, LLC, Case No B329202 (2d Dist., Div. 1 May 29, 2024) (unpublished), plaintiff resident dismissed a complaint alleging late payment of rent, fee increases, and other claims arising under the Mobilehome Residency Law (Civ. Code, § 798 et seq.) (MRL), which has a prevailing party clause which is bilateral in nature.  The lower court denied fees to the mobile home park, but that was reversed as a matter of law.  The problem for the mobilehome homeowner was that two of his claims did arise under the MRL, despite trying to argue otherwise.  Even worse, the MRL scheme does allow attorney’s fees to a party where the litigation is dismissed in the defense favor (Civ. Code, § 798.85.), with caselaw extending the dismissal to a voluntary dismissal.  That resulted in a remand to determine what fees were owed to the mobile home park, keeping in mind the lower court had to face reasonableness and allocation principles given only two claims were adversely against mobile home park owner under the MRL.

Prevailing Party: Defendant Was The Prevailing Party When Plaintiffs Were Not Awarded Damages Out Of A Requested $667,000 On Contractual Indemnification/Duty To Defend Claims

Plaintiff’s Obtaining A Declaration Of A Limited Duty Of Indemnify And Defense To Two Of Three Underlying Actions Was Eclipsed By Defeat Of Damages Claims And Defendant’s Obtaining Summary Adjudication That The Duty To Indemnity And To Defendant Was Cut Off By A Prior Date For Most Of The Alleged Duties.

            We know that an “unqualified win” makes a litigant a prevailing party under Hsu v. Abbara, 9 Cal.4^th 863 (1995) [Our Leading Case N. 2].)  However, when this situation does not exist, a lower court had considerable discretion to determine what party prevailed, if any, based on a pragmatic assessment of what party has realized its litigation objectives.  (Santisas v. Goodin, 17 Cal.4^th 599, 622 (1998).)   This type of discretionary call was at issue on appeal in Garcia v. Bank of Stockton, Case No. F085536 (5^th Dist. May 10, 2024) (unpublished).

            There, plaintiffs sought to enforce certain indemnity and duty to defend obligations under agreements with defendant bank.  The lower court granted defendant’s summary adjudication motion after determining that some of these obligations expired on a date certain under the agreements.  After a bench trial on the remaining issues, the lower court determined that plaintiff had failed to prove damages even though seeking $667,000 from defendant, with the merit determinations affirmed in an earlier appellate opinion.  (Along the way, plaintiffs did win a declaration that partial indemnity/duty obligations were at issue, even though the recorded suggest defendant did not really contest it vigorously.). Defendant then moved for contractual prevailing party attorney’s fees, with the lower court awarding some amount although the sum is not mentioned in the second appellate opinion.

            The Fifth District affirmed the fee award in plaintiffs’ second appeal.  It could no discern no abuse of discretion based on these circumstances: (1) defendant’s victory in neutralizing a significant damages award and in obtaining a pretrial summary adjudication award limiting indemnity/duty to defend obligations were predominant; whereas (2) plaintiffs’ partial indemnity/defend win was a limited one and dwarfed by the “no damages” determination against them.

Fee Clause Interpretation, Prevailing Party, Section 1717: Lower Court Erroneously Denied Attorney’s Fees To Plaintiff Who Obtained A Majority Of What She Wanted In A Loan Agreement Case With A Fees Clause Only Covering A Judicial Foreclosure Case

Under Civil Code Section 1717, Lack of Recital Saying Contract Was Negotiated/Executed With Counsel Representation Kept The Clause From Applying Narrowly, With The Matter Remanded For Purposes Of Determining If Plaintiff Was The Prevailing Party For Fees Even Though Plaintiff Did Not Pursue Routine Costs Recovery.

            In Andrade v. Western Riverside Council of Governments, Case No. D080978 (4^th Dist., Div. 1 Feb. 20, 2024) (published), plaintiff filed a lawsuit against the Council and others claiming she had been fraudulently enrolled in a PACE energy program resulting in a lien and increased property tax assessments, pleading multiple contractual theories for rescission, restitution, damages, and declarations that the agreements were partially or wholly unenforceable.  After an investigation through a state department confirming contractor fraud, the Council voluntarily released its lien and reimbursed plaintiff for the increased property tax assessments.  Plaintiff obtained much of the relief she wanted through Council’s actions, but never obtained a declaration that the agreements were unenforceable.  The operative loan agreements between plaintiff and Council had a narrow fees clause applying only to a judicial foreclosure action prosecuted by Council, something which did not occur.  The lower court denied plaintiff’s attorney’s fees request, determining that the fees clauses did not apply because no judicial foreclosure action was pursued by Council.  (Plaintiff ultimately did not pursue a costs recovery.)

            Initially, the appellate court agreed that the action was a contract because it concerned whether the loan agreements were valid and enforceable, with plaintiff’s theory of invalidating the contracts being “on the contract” under Civil Code section 1717 and with dicta in Xuereb/Dintino decisions not altering that conclusion.  Second, although acknowledging that the fees clause was narrow and applied only to judicial foreclosure actions, the 4/1 DCA panel relied on section 1717(a) to conclude that the fee provision applies to the entire contract unless the parties expressly recite that the agreement was negotiated/executed by parties represented by counsel somewhere in the contract or fees clause—that recital was not present, and the appellate court deemed that this recital was necessary to prevent the agreement from being a “lopsided arrangement that section 1717 prohibits.”  Finally, given its prior conclusions, the appellate court remanded to have the lower court determine if plaintiff “prevailed” for fees under section 1717:  after all, even though she won a lot, she did not prevail across-the-board such that a pragmatic inquiry was necessary on remand.

BLOG OBSERVATION—This case suggests that in fee clauses, transactional attorneys need to include the negotiation/execution recital or be at risk that a narrow fee clause will not be enforced where the fee motion issues on based on the entire contract.  Huge drafting tip here.

Employment, Fee Clause Interpretation, Prevailing Party, Settlement, Special Fee Shifting Statutes: Denial Of Labor Code Section 1194 Attorney Fees To Plaintiffs Who Incurred Post-Settlement Fees After Employer Breached The Settlement Agreement Reversed

Because The Fees Provision In The Parties’ Settlement Agreement Did Not Address Fees Incurred Post-Settlement, Plaintiffs Were Entitled To Recovery Under Section 1194, But Only As To Fees Incurred In Conducting Discovery And Litigating To Trial, Not In Enforcing The Settlement Agreement.

            In Lorta v. Bishop, Case No. G062166 (4^th Dist., Div. 3 February 13, 2024) (unpublished), five employees, who had sued their employer for recovery of wages, filed a motion seeking attorney fees of $331,261.25 – based on a $265,009 lodestar and a 1.25 multiplier – after employer failed to comply with the parties’ stipulation for settlement.  Plaintiffs incurred the fees post-settlement by conducting discovery and preparing for trial, and by enforcing the settlement agreement, and claimed entitlement to the fees under Labor Code sections 1194 and 226, and Code Civ. Proc. section 1021.5.  Defendant argued that because there was no trial or determination by the trial court on the merits of Plaintiffs’ claims, Plaintiffs were not prevailing parties under sections 1194, 226, and 1021.5, and not entitled to statutory fees.  Defendant further argued that Plaintiffs had prevailed only in enforcing the settlement agreement, which amounted to a breach of contract claim, and the settlement agreement provided that each party would bear its own fees and costs.  The trial court agreed and denied Plaintiffs’ motion for fees.

            Plaintiffs appealed and obtained a reversal and remand as to fee recovery under section 1194 – a one-way fee-shifting statute that allows employees to recover fees in a successful action for minimum wage or overtime. 

            In an opinion authored by Justice Sanchez, the 4/3 DCA found that the settlement agreement was silent as to any fees incurred after the settlement agreement – thereby entitling Plaintiffs to post-settlement attorney fees under section 1194 insofar as those fees were not incurred to enforce the settlement agreement.  In reaching this conclusion, the panel determined that the settlement agreement had the same effect as a judgment as defined under Code Civ. Proc., § 577 and constituted a recovery in a civil action within the meaning of section 1194.

Equity, Prevailing Party: $54,914.25 Fee Award For Replacement Referee Interim Victory Was Premature

Based On Unique Circumstances Of The Litigation, Fee Request Was Premature Until The Overall Merits Were Decided.

            Equity does factor in attorney’s fees awards, as Hot Rods, LLC v. Northrop Grumman Systems Corp., Case No. G061449 (4^th Dist., Div. 3 Jan. 25, 2024) (unpublished) makes clear.

            This contentious litigation between the parties involved multiple proceedings and appeals over parties’ responsibilities for environmental contamination of an Anaheim property, which produced some wins and losses for both sides.  The current appeal focused on a $54,914.25 fee award for one party prevailing on an interim victory of obtaining a replacement referee.  However, given that the merits of the motions were not addressed, the 4/3 DCA, in an opinion authored by Justice Moore, reversed because it was premature, with a remand to see what happened at later junctures of the litigation to determine who prevails.

Prevailing Party, Probate: $61,557 Fee Award To Removed Trustee For His Attorney’s Work On Trust Petition Affirmed On Appeal

Trustee and Challenging Beneficiaries Got Mixed Results, So Trustee Entitled To Fees, Inclusive Of “Fees On Fees.”

            In Farnocchia v. Harms, Case No. A164639 (1^st Dist., Div. 1 Nov. 29, 2023) (unpublished), two beneficiaries of a trust filed a petition to remove Harms as trustee, for an accounting, and for breach of fiduciary duty.  Although trustee was removed and provided asset documentation acceptable to the beneficiaries, the petition was resolved by a stipulation through which the asset information was deemed adequate, and no finding of fiduciary duty breach was made.  The lower court then granted trustee’s attorney’s fees in the amount of $61,557 for the work of the attorney helping trustee reach the stipulation resolving the petition, including “fees on fees” on the fee entitlement issue.  Beneficiaries appealed the order, but it was affirmed on appeal.

            Initially, the Court of Appeal provided a nice review of the situations giving rise to fee entitlement under these circumstances.  “In People ex rel. Harris v. Shine (2017) 16 Cal.App.5th 524, our colleagues in Division Five summarized when such fees are appropriate:

“ ‘ “The underlying principle which guides the court in allowing costs and attorneys’ fees incidental to litigation out of a trust estate is that such litigation is a benefit and a service to the trust,” ’ and not for the personal benefit of the trustee. [Citation.] Courts have found a trustee’s legal services were for the benefit of the trust, and thus payable from trust funds, where the attorneys helped prepare an accounting [citation]; successfully defended an accounting [citation]; litigated to preserve trust assets [citation]; successfully defended against a petition to invalidate the trust [citation]; or successfully defended against a petition to remove or surcharge the trustee [citation].

“Fee awards have been denied or reduced where the attorneys helped prepare an inaccurate accounting [citation]; unsuccessfully defended an accounting [citation]; or unsuccessfully defended a petition to remove or surcharge the trustee [citation]. Where the results of such proceedings were mixed, courts have either awarded fees based on the trustee’s overall success in the proceeding [citation] or apportioned fees according to the trustee’s success [citation]. [¶] Fee awards have also been found inappropriate where the trustee acts from personal interest or motive. [Citations.]

“In short, the costs of a successful defense to a removal or surcharge petition are generally chargeable against the trust even though the trustee personally benefits as a result. [Citation.] However, a trustee is not entitled to indemnity for fees incurred in an unsuccessful defense of such a petition absent an additional showing that ‘the trustee subjectively believed that the expense was necessary or appropriate to carry out the purpose of the trust and that belief was objectively reasonable.’ ” (Id. at pp. 534–535.)

            The appellate court found that beneficiaries were not necessarily the prevailing party because although they got Harms removed as trustee and obtained asset information, the trustee did successfully defend against the accounting challenges, and no breach of fiduciary findings were made.  This mixed result allowed recoverable compensation for the work of trustee’s attorneys in reaching a stipulation with respect to beneficiaries’ petition.  Furthermore, trustee was entitled to “fees on fees” in demonstrating fee entitlement before the lower court.  (Estate of Griffith, 97 Cal.App.2d 651, 656 (1950).)

Prevailing Party: Where Defendants Prevailed On Dispositive Motions In Limine And Motion For Judgment On The Pleadings, Dismissal Without Prejudice By Plaintiffs Did Not End The Ability For Any Party To Seek Prevailing Party Fees

Case Involved The Claim That Individual Defendants Were Guarantors Under A Lease.

            In Canales v. Superior Court, Case Nos. B321796 et al. (2d Dist., Div. 4 Nov. 16, 2023) (unpublished), on the day of trial, the lower court indicated tentative decisions to grant the defense motions in limine and its own sua sponte motion for judgment on the pleadings in a case where plaintiff claimed defendants were guarantors under a commercial lease.  Plaintiff then dismissed its complaint without prejudice, a request granted by the lower court and led it to deny attorney’s fees to the defense as the prevailing party.

            The 2/4 DCA reversed on both fronts.  The principal reason was that the trial had commenced so that only a with prejudice dismissal could be entered.  So, that meant who prevailed as far as fee exposure was an open issue which had to be explored on remand.

Fee Clause Interpretation, Prevailing Party: Where Plaintiff Under An Ejectment Claim Obtained Possession Before Voluntarily Dismissing Complaint, Defendants Could Not Be The Prevailing Parties

Interpretation Of The Lease Language Led To That Result. 

            In A & N Industrial Properties, LLC v. Bart & Judy’s Bakery, Inc., Case No. B322730 (2d Dist., Div. 4 Nov. 13, 2023) (unpublished), plaintiff landlord sued a delinquent holdover tenant for breach of contract, common counts, breach of guaranty, and ejectment under a lease with a prevailing party fees clause.  After the complaint was filed, defendant tenant notified landlord that possession of the premises was being tendered back, which inspired landlord to dismiss its suit without prejudice.  Under Santisas (our Leading Case No. 6), no fees were recoverable on the contract claim.  However, tenant argued it was the prevailing party on the noncontractual ejectment claim, and the lower agreed by awarding it attorney’s fees.  The 2/4 DCA reversed as a matter of law because tenant did not prevail since landlord achieved its objective of obtaining possession from tenant.

Lodestar, Prevailing Party: Reversal Of Judgment For Cross-Complainant And Increased Recovery For Plaintiffs Made Plaintiffs The Prevailing Party So A Fee Order Remand Was Necessary

Given Some Reductions For The Cross-Complaint And Other Issues, Fee Award Had To Be Reassessed—Initial Award Was $388,541, A 50% Reduction From The Original Request.

            In Perera v. Moine, Case No. B319315 (2d Dist., Div. 7 Sept. 18, 2023) (unpublished), plaintiffs were the prevailing party in a breach of contract dispute (based on an initial $750,700.16 compensatory award to plaintiffs after some reductions, including a reduction for a $61,000 on the defendant’s cross-complaint), with the lower court awarding $388,541 in attorney’s fees under a contractual fees clause—a 50% reduction from the $788,072 “ask” for excessive hours for a one-week bench trial, unreasonable charges, and duplication by having too many attorneys working on the case.  In a contemporaneous decision, the 2/7 DCA determined that no recovery was allowable on the cross-complaint and more recovery was owed to plaintiffs, which resulted in a remand of the fee award as described below.

            Defendant argued that plaintiffs were not the prevailing parties, but that was not the case.  If anything, they were more so given the contemporaneous opinion which increased plaintiffs’ recovery by more than $300,000.

            Given the reversal, a remand was necessary on the fee recovery.  The appellate court did not express any opinion on whether the original trial judge’s (Judge Terry Green’s) reductions were or were not appropriate.  It did observe that he has retired from the bench such that the fee motion should be adjudicated before a new judge who was urged to make an order indicating the amount of the award under lodestar principles, recognizing that no statement of decision is mandatory in fee proceedings.

            BLOG OBSERVATION—Judge Green (Ret.) is now a neutral with Signature Resolution.

Homeowner Associations, Prevailing Party: HOA’s $139,977 Attorney’s Fees Award, Made After Homeowners Dismissed Their Lawsuit Without Prejudice And Did Not Pursue Arbitration Before The Case Dismissal, Was Properly Granted

“Prevailing Party” Definition Under Davis-Stirling Act Different Than Under Civil Code § 1717.

            In Matus v. Freedom West Homes Corp., Case No. A165736 (1^st Dist., Div. 2 Aug. 21, 2023) (unpublished), a group of homeowner plaintiffs filed a lawsuit against HOA, which was ordered into arbitration.  Plaintiffs dismissed their court case without prejudice 15 months later, with the record reflecting they had not initiated arbitration but were thinking about doing so.  The lower court awarded HOA $139,977 attorney’s fees as the “prevailing party” under the Davis-Stirling Act fee shifting provision, Civil Code § 5975(c). 

            The appellate court affirmed the fee award.  HOA did achieve its litigation goals by obtaining dismissal of the lawsuit, with nothing in the record showing that plaintiffs had commenced an arbitration.  The Court of Appeal acknowledged there is no rigid rule on who is a prevailing party under section 5975(c) when there is a without prejudice dismissal of a lawsuit, with such a determination vested within the discretion of the lower court—no abuse of discretion occurred here given plaintiff’s delay in even attempting to commence arbitration. 

            Plaintiffs, on appeal, tried to argue that Civil Code section 1717 principles applied because there was no final merits adjudication, but the appellate court made three observations in rejecting this argument: (1) section 1717 principles do not apply to the Davis-Stirling Act statutory fee shifting provision (Parrott v. Mooring Townhomes Assn., Inc., 112 Cal.App.4^th 873, 878-880 (2003)); (2) prevailing party fees under section 1717 would not be recoverable under the Santisas case [our Leading Case No. 6], but that is not dispositive of the analysis under statutory fee shifting provisions; and (3) section 1717 case law supported the lower court’s conclusion to award fees (Roberts v. Packard, Packard & Johnson, 217 Cal.App.4^th 822, 829-830, 833 (2013)). 

Prevailing Party: Cross-Complainant Winning More Than Plaintiff Was The Prevailing Party For Fee Recovery Purposes

Cross-Complainant Obtained An $88,130.06 Net Recovery, Such That A Subsequent $90,013 Prevailing Party Fee Determination Was No Abuse Of Discretion.

            In VanLaw Food Products, Inc. v. New England Counry Foods, LLC, Case No. G061375 (4^th Dist., Div. 3 July 6, 2023) (unpublished), plaintiff received $27,441.25 under its complaint, and cross-complaint received $115,571.31 on its cross-complaint, with the lower court determining that the $88,130.06 edge for cross-complainant meant it was the prevailing party under a contractual fees clause.  That resulted in a fee award of $90,013 in cross-complainant’s favor.

            This determination was affirmed in a 3-0 decision by Acting Presiding Justice Bedsworth.  The prevailing party determination was no abuse of discretion under the circumstances.  But we will quote some ending comments from Justice “Beds” which are worthy of consideration by litigants and their attorneys: 

            “There are two questions every litigant must answer before suing or choosing to maintain a lawsuit. The first is whether he or she has a meritorious claim, and the second is whether it is worthwhile to pursue it. That second question will always involve consideration of whether the opponent’s claims are meritorious, and the decision whether to go forward with litigation will require a weighing of the risk such claims might succeed. The answers to those questions may change as the litigation proceeds, and they may very well be impacted by the claims and defenses presented by the other side.

            “Such is the nature of litigation – each side goes to trial believing it has the better claim, and the outcome is left to the trier of fact. Each side takes a risk. Here, NECF’s cross-complaint may have been brought late, and it may have been worth more money. But if the trial court had ruled against NECF on the cross-complaint, and for [Plaintiff] VanLaw on the complaint, NECF would owe VanLaw money. The so-called ‘chilling effect’ VanLaw forecasts is merely the wager each litigant must make. An adversary system will always include such wagers.”

Prevailing Party: Tenant’s Successful Demurrer, Resulting In A Dismissal Of A Case Without Prejudice To Refiling A Future Complaint, Did Not Entitle Tenant To Prevailing Party Fees

An Interim Dismissal Without Prejudice Did Not Dispositively Determine Who Prevailed.

            Tenant, during the COVID-19 pandemic, successfully demurred to a landlord complaint on the basis that the lawsuit was premature given pandemic rules which did not allow the suit to be filed when it was.  The demurrer was sustained without prejudice to filing a later complaint.  Tenant moved for contractual attorney’s fees as the prevailing party, a request denied by the trial court.

            That denial was affirmed on appeal in Ghukassian v. Wolfberg, Case No. E078304 (4^th Dist., Div. 2 May 11, 2023) (unpublished).  Tenant’s problem was that the interim dismissal was without prejudice to refiling a future complaint, nowhere close to a dispositive ruling on the merits.  That meant the prevailing party request was premature.  (City of West Hollywood v. Kihagi, 16 Cal.App.5^th 739, 753 (2017); Estate of Drummond, 149 Cal.App.4^th 46, 49, 51, 53 (2007).)

Costs, Prevailing Party: Party Achieving Partial Success, And Reversal Of Prior Fee Prevailing Party Adverse Against It, Was Not Entitled To Fees On Remand Because Lower Court Properly Determined It Did Not Prevail

The Appellate Win Did Not Allow For Prevailing Party Fees, Because The Ultimate Litigation Outcome Result Was Dispositive—No One Prevailed.

            The next case, Waterwood Enterprises, LLC v. City of Long Beach, Case No. B316269 (2d Dist., Div. 1 Apr. 26, 2023) (unpublished) had a topsy-turvy procedural history, but it at long last has seemed to have reached its end.

            Waterwood won a $45,000 compensatory verdict, after requesting damages of around $235,000, against City of Long Beach.  However, when it came time to consider attorney’s fees, the lower court denied fees to Waterwood and awarded $230,000 in contractual fees to City after considering some settlement offers and other matters which the appellate court in a prior appeal determined to be in error, determining that a remand was in order to see if Waterwood prevailed or if no one prevailed. 

            On remand, Waterwood requested fees of over $348,000 for trial court efforts as well as $81,461 in fees for prevailing on the prior appeal.  The lower court determined that the case was a mixed positive result for Waterwood, denying both lower court and appellate fees.  Those determinations were affirmed on appeal, because the trial judge had considerably discretion to determine no one prevailed under Hsu v. Abbara (Our Leading Case No. 2).  With respect to denial of appellate fees, one cannot segregate appellate wins but has to examine who prevails in the overall matter, with the lower court determining that did not happen.  (Wood v. Santa Monica Escrow Co., 176 Cal.App.4^th 802, 804, 806, 808 (2009).)

            However, Waterwood was entitled to appellate routine costs as the prevailing party, with the lower court clerk erring by failing to enter judgment on that issue after the filing of a timely costs memorandum.  However, no interest was due before entry of judgment because Waterwood never raised the issue before the lower court to get to a judgment before this appeal was decided. 

Prevailing Party: Where Cross-Complaint Was Dismissed Without Prejudice And Subject To A Tolling Agreement, Trial Court Did Not Abuse Its Discretion To Determine There Was No Prevailing Party For A Fee Recovery—As Yet

Costs Prevailing Party Determination Was Not Dispositive As To Fee Prevailing Party Determination.

            Davis v. Philpott Meeks, LP, Case No. B316618 (2d Dist., Div. 7 Apr. 17, 2023) (unpublished) was a situation where plaintiff filed an unlawful detainer complaint, generating various cross-complaints for premises liability and indemnity.  Certain cross-claimants dismissed their cross-complaints without prejudice and subject to a one-year statute of limitations tolling agreement.  One of the cross-complainants sought over $300,000 in attorney’s fees under a management agreement, which fees were denied by the lower court based on the tolling agreement.  The appellate court affirmed.  It rejected the argument that because the prevailing cross-claimant was entitled to routine costs, that party was also the prevailing party for purposes of attorney’s fees.  Given that no judgment was entered against the adverse parties based on the tolling agreement, it was no abuse of discretion for the lower court to determine that there was no prevailing party—as of now!

Arbitration, Prevailing Party: Attorney Fees And Costs Award Of $334,458.41 Affirmed Against Plaintiff Attorney Who Achieved, Under A Confirmed Arbitration Award, A Monetary Recovery Of A Small Bit Of The $3,720 In Fees He Sought From Defendant Client

The Award Was Governed By The Statutory Fee Provisions Provided For By The Mandatory Fee Arbitration Act, Not The Parties’ Contract Fee Provision.

            Under the MFAA (Bus. & Prof. Code, § 6200 et seq.), enacted to eliminate bargaining power disparity between attorneys and clients trying to resolve fee disputes, neither party to a fee arbitration may recover fees or costs incurred in the arbitration proceeding, with exception to the filing fee.  However, under § 6203(c) a party bringing a meritorious petition and obtaining judgment confirming, correcting, or vacating an MFAA arbitration award is a prevailing party and may recover reasonable fees and costs, including fees and costs on appeal.  Additionally, under § 6204(d), reasonable attorney fees and costs may be awarded to the prevailing party in a trial after arbitration.  Under section 6204(d), the party seeking trial after arbitration is the prevailing party if successful in obtaining a judgment more favorable than that provided by the arbitration award.  Otherwise, the other party is the prevailing party.

            In Soni v. Cartograph, Inc., Case No. B316270 (2d Dist., Div. 5 April 5, 2023) (published), plaintiff attorney petitioned for MFAA fee arbitration after defendant client challenged about $3,720 of the fees charged by attorney as being incurred for unauthorized work.  Ultimately, after client agreed not to dispute $380 of the fees, and after applying client’s credit balance from his previous overpayment and after the allocation of arbitration filing fees, attorney received an arbitration award in the net amount of $2.50.

            Afterward, attorney filed an action seeking a trial, and client petitioned to have the arbitration award confirmed.  The trial court denied client’s petition and entered judgment in favor of attorney in the amount of $2,890, plus prejudgment interest, costs, and $79,898 in attorney fees. This was reversed on appeal – with the appellate court concluding in a published opinion that the arbitration award was binding and should have been confirmed because attorney failed to file his action for trial within 30 days after service of the arbitration award. (§ 6204(a)-(c).)

            On remand, both parties sought prevailing party attorney fees – with attorney seeking $543,365 under the fees provision of the parties’ contract based on his net monetary recovery under the arbitration award, and client seeking $339,603 under the fees provision of the parties’ contract and under § 6203(c).  Following a hearing on the competing fees requests, the trial court determined that the MFAA fee provisions at §§ 6203(c) and 6204(d) governed – not the parties’ contract fee provision.  After some deductions for duplicative work, the trial court awarded client $334,458.41 in attorney fees and costs. 

            Attorney appealed, but the 2/5 DCA affirmed – concluding that application of the parties’ contract fee provision was precluded by the policies underlying the MFAA fee provisions to promote the finality of arbitration awards and discourage frivolous additional litigation.

Arbitration, Prevailing Party, Reasonableness Of Fees: Client Who Reversed Post-MFAA De Novo Trial Results And Who Confirmed The Prior Arbitration Award Was The Prevailing Party

Because Client Had To Hire Appellate Attorneys Reversing The De Novo Trial Results, Client Was Awarded $334,458.11 In Fees/Costs—Affirmed By The Appellate Court.

            Soni v. Cartograph, Inc., Case No. B316270 (2d Dist., Div. 5 Mar. 23, 2023) (unpublished) is quite a megillah of an arbitration/litigation odyssey about a client-attorney dispute over fees.  Looks like the odyssey has finally come to a close.

            Although the overall alleged fee delinquency was relatively small, client took attorney through a mandatory fee arbitration proceeding under the Mandatory Fee Arbitration Act (MFAA), resulting in a net award of $2.50 to attorney.  Thirty-three days after service of the arbitration award, attorney filed a civil action against client seeking about $27,500.  Attorney won that litigation, although only obtaining a $2,890 judgment, plus interest as well as fees and costs to be determined.  Attorney requested $281,191.65 in contractual fees, with the lower court awarding $79,898.  However, client appealed the judgment, and it was reversed on appeal because attorney failed to file its action within a 30-day deadline period, reversing a denial of client’s motion to confirm the award. 

            Upon remand, the lower court granted client’s petition to confirm the arbitration award.  Both sides claimed to be prevailing parties, filing dueling fee motions.  The trial judge found that client prevailed, awarding client $328,166.50 in fees under the MFAA, Business and Professions Code sections 6203 and 6204.

            Attorney was miffed, appealing but obtaining no change in result.  Client was the prevailing party under section 6203(c) because client successfully confirmed the arbitration award, notwithstanding the tortured history by which client finally got to this final reckoning.  The appellate panel also rejected the argument that the language of the contractual fees provision governed, because the MFAA controlled over the parties’ contract provision.  Finally, the amount of the award was no abuse of discretion, given appellate expertise was necessary and given client’s attorneys worked half as many hours as attorney’s attorneys.

Costs, Prevailing Party, Private Attorney General, Section 998, Trespass: Prevailing Defendant/Cross-Complainant Obtains Attorney’s Fees Under Trespass Fee Shifting Statute Despite Receiving Nominal Damages And Also Receives Routine Costs

Losing Plaintiff/Cross-Defendant Denied Private Attorney General Fee Request In Opinion With Several Cross-Over Issues. 

            Direct Action Everywhere SF Bay Area etc. v. Diestel Turkey Ranch, Case No. A162702 (1^st Dist., Div. 2 Mar. 1, 2023) (unpublished) is an opinion with many cross-over issues as identified in our main title to this post.

            In this one, plaintiff sued defendant for alleged false advertising and unfair competition violations, with defendant cross-complaining against plaintiff, as a cross-defendant, for trespass, conversion, and unfair competition.  Defendant won on both suits after an 8-day bench trial.  The lower court also determined that defendant was the prevailing party, awarding defendant/cross-complainant routine costs of $68,734.37 minus $4,950 in mediator expenses and $72,848.25 in attorney’s fees under CCP § 1021.9 (the trespass fee-shifting statute).  The lower court denied plaintiff’s request for $1,541,000 in private attorney general fees under CCP § 1021.5. 

            On appeal, the costs and fee rulings were all affirmed.  Plaintiff argued that nominal damages will not support a trespass fees award (citing treatises to that effect), but the appellate court disagreed:  “section 1021.9 does not delineate between the type of damages awarded in a trespass action, but rather states that a party ‘shall be’ entitled to its fees and costs when it prevails in an action for damages to its personal or real property resulting from trespass.”  In this case, the lower court determined that plaintiff trespassed six times resulting in the loss of two turkeys such that tangible damages did occur, awarding $8.00 in damages and a permanent injunction.  That sufficed for 1021.9 purposes:  cross-complainant suffered tangible harm even though cross-complainant failed to adduce proof of the trespass loss.  Plaintiff argued fees were unwarranted because this could have been brought as a small claims or a limited case (citing Chavez, our Leading Case #13), but that argument failed because a case praying for a permanent injunction must be brought as an unlimited matter.  Plaintiff ended by contending that cross-complainant did not beat its CCP § 998 offer, but that lacked merit because cross-complainant’s pre-offer costs well exceeded the offer on the cross-complaint and plaintiff’s 998 offer only offered a temporal permanent injunction versus the unlimited permanent injunction obtained by cross-complainant.

            With respect to plaintiff’s 1021.5 request, that was dispatched because plaintiff was not successful and was no catalyst for any changes.

            On the routine costs side, the lower court’s rulings were correct, reminding litigants and practitioners that court reporter costs are recoverable (even if the transcript costs are not) and deposition costs for witnesses not testifying at trial are allowable in the lower court’s discretion.

Prevailing Party: $78,500 Attorney’s Fees/Costs Award Affirmed Against Non-Prevailing Party Admitting In A Summary Judgment Non-Opposition That Conceded Their Cross-Claims Had No Merit

Admissions In The Summary Judgment Proceeding Were Preclusive.

            The next case, Blue Fountain Pools and Spas, Inc. v. Zauss, Case No. E077923 (4^th Dist., Div. 2 Jan. 30, 2023) (unpublished), cautions litigants that admissions in law and motion non-oppositions can have preclusive results in later fee motions.  In this one, cross-complainants admitted in a summary judgment non-opposition that their cross-claims lacked merit.  Later, the trial judge granted the prevailing cross-defendants $78,500 in contractual fees and costs.  That result “stuck” on appeal because the admissions showed there was a final victory on the cross-claims, not just an “interim win.” 

Prevailing Party: Lower Court Can Look At Success On Phases Of Litigation To Determine If Party Prevailed On Junctures Of The Litigation For Purposes Of Prevailing Party Determination

Prevailing Party Obtained No Fees For Property Rescission Work, But Did Obtain Partial Fees For Compensatory Damages/Offset Phase Of The Case.

            This case, Nosrati v. Gonzalez, Case No. B317588 (2d Dist., Div. 7 Jan. 13, 2023) (unpublished) shows how a trial judge can award a prevailing party in some phases of the litigation “prevailing party” fees even though that party did not prevail in an earlier phase.

            Residential buyers sued sellers for failure to disclose defects in a home they sold to buyers.  Shortly before trial, sellers accepted buyers’ demand for rescission, and buyers won compensatory damages, minus offsets, and prejudgment interest against seller.  Buyers moved for attorney’s fees based on a purchase agreement contractual clause to the tune of $260,412.87.  The lower court awarded them only $88,297.26, with sellers appealing on the basis that buyers should not have been declared the prevailing parties.

            The 2/7 DCA affirmed.  Based on admissions in a legal malpractice action, the lower court properly credited that buyers did not want rescission such that they should not obtain fees for this relief which totaled $178,619.  However, buyers did prevail in the compensatory damages phase, with nothing in the law not allowing the lower court to award reasonable attorney’s fees for prevailing in the second phase of the litigation.  The phased-nature of the case did not prevent “prevailing party” fees in the phase where buyers did accomplish their litigation objectives. 

Prevailing Party, Reasonableness Of Fees, Section 1717: $200,000 Fee Award To Prevailing Defendant Affirmed Because Tort Claims Allowed For Recovery, Post-Dismissal, Under Santisas

Settlement With Other Parties Did Not Impact Analysis Of Fee Reasonableness As To The Prevailing Defendant.

            Carp Property, LLC v. Corona, Case No. B316354 (2d Dist., Div. 6 Nov. 17, 2022) (unpublished) was a situation where plaintiff litigated a matter for two years where there was a contractual fees clause in an operative agreement, suing for over $2.1 million.  Plaintiff settled with some defendants for a total of $90,000 and then dismissed the prevailing defendant after that party rejected a “walkaway” settlement in exchange for a waiver of costs.  Prevailing defendant moved for $228,000 in Civil Code section 1717 fees, but the lower court awarded $200,000 after trimming the request for block billing and for higher-level attorneys performing lower level tasks.

            The appellate court affirmed the fee award.  Plaintiff dismissed both contract and tort claims, but the dismissed tort claims were inextricably intertwined with the contract claims and the broadly worded attorney’s fees provision allowed for tort claim recovery, an exception to the Santisas v. Goodin, 17 Cal.4^th 599, 621 (1998) “general rule” relating to dismissal of contractual claims.  It then found that the $90,000 settlement with some defendants did determine fee reasonableness as far as the work done by the other prevailing defendant here.  The trial court also trimmed about $28,000 from the fee request, such that some of plaintiff’s arguments for a reduction were credited—meaning the fee award was no abuse of discretion and did not shock the conscience. 

Prevailing Party, Special Fee Shifting Statutes: Trial Court’s Determination That There Was No Prevailing Party Under Civ. Code Section 8800 In Prompt Payment Action Affirmed, But Reversal For Same Determination Under Code Civ. Proc., Section 1032

Determination Of Prevailing Party Under Section 8800 Is Left To The Trial Court’s Broad Discretion, But The Trial Court Abused Its Discretion In Determining There Was No Prevailing Party Under Section 1032 Where Plaintiff Was The Only Party With A Net Monetary Recovery.

            Civil Code section 8800 is a prompt payment statute governing progress payments that an owner shall pay the direct contractor.  Section 8800(c) entitles the prevailing party in an action for collection of the amount wrongfully withheld to costs and reasonable attorney’s fees. 

            In Vought Construction Inc. v. Stock, Case No. A164823 (1^st Dist., Div. 4 October 24, 2022) (published), plaintiff sought the balance due for renovations it performed on defendant’s home, an additional amount for a change order, and penalties for Civil Code section 8800 violations (prompt payment statute).  Defendant agreed with the balance due, but disputed the additional amount sought by contractor, and also claimed a liquidated damages offset for delay.  The parties’ contract did not contain an attorney’s fees provision, so the parties relied on the fees/costs recovery allowed pursuant to section 8800.

            Following a four-day bench trial, the trial court found that each party had acted in good faith, and that contractor failed to prove homeowner had violated section 8800.  Additionally, the trial court found that contractor was entitled to roughly half of the additional amount it sought for a change order, and homeowner was entitled to roughly half of the liquidated damages offset he sought.  Based on the trial court’s findings, it also determined that neither party achieved prevailing party status for recovery of fees and costs under either section 8800 or costs under Code Civ. Proc., section 1032.

            Contractor argued on appeal that based on a practical evaluation of the litigation as a whole, the trial court abused its discretion by not finding it to be the prevailing party under section 8800.  The appellate panel disagreed.  Section 8800 does not define prevailing party and, contrary to contractor’s argument, section 1032 does not govern as to the definition of prevailing party.  Rather, determination as to whether a party has achieved prevailing party status under section 8800 is left to the trial court’s broad discretion which is made on a practical level.  Given the outcome in the case – with the trial court’s determination that section 8800 had not been violated as each party had acted in good faith, and with each party achieving roughly one-half of what they sought – the 1/4 DCA found no abuse of discretion with the trial court’s ruling on prevailing party as to section 8800.

            However, the appellate panel disagreed with the trial court’s ruling under section 1032.  Section 1032’s definition of prevailing party includes “the party with a net monetary recovery.”  In this case, contractor was the only party with a net monetary recovery, and was therefore entitled to recover its costs.  The trial court erred in considering homeowner’s setoff claim in determining the prevailing party under section 1032 as the homeowner had no net monetary recovery.   

Interpleader, Prevailing Party: 2/7 DCA Affirms Trial Court’s Denial Of Attorney Fees And Costs Sought Against Interpleading Plaintiff By Defendant Who Obtained Summary Judgment

Defendant In An Interpleader Action Cannot Be The Prevailing Party As To The Interpleader Because There Are No True Adverse Interests, And Claims Of Collusion Between Between Interpleader And Other Defendant Must Be Made During Initial Phase Of Proceeding.

            In Grupo Deco California v. Downs, Case Nos. B305748/B308965 (2d Dist., Div. 7 October 17, 2022) (unpublished), commercial tenant filed a complaint in interpleader against the two separate parties claiming entitlement to the rent payments – the trustee of a revocable trust, and an LLC.  After the trial court ruled in favor of the Trustee, granting her motion for summary judgment, she moved pursuant to the lease agreement and Code Civ. Proc. §§ 1032 and 1033.5 as the prevailing party for attorney fees and costs jointly and severally against the LLC and the interpleader plaintiff/stakeholder. The trial court awarded some fees/costs against the LLC, but ruled that fees/costs were not recoverable against the interpleader – finding that a defendant in an interpleader action cannot be the prevailing party “because there are no true adverse interests”; and because there was no net monetary recovery against interpleader.  Trustee appealed.

            The 2/7 DCA agreed with the trial court’s finding and affirmed – citing its holding in Cantu v. Resolution Trust Corp., 4 Cal.App.4^th 857, 881 (1992) [“An interpleader action is not adversarial as between a claimant and the stakeholder and, hence, Cantu [the claimant] could not prevail against Lincoln [the stakeholder], or vice versa.”]. 

            The panel also found, just as the trial court had, that Trustee was not entitled to fees based on her argument that interpleader had colluded with the LLC.  “[A]n interpleader action may not be maintained ‘“upon the mere pretext or suspicion of double vexation.”’’’ (Placer Foreclosure, Inc. v. Aflalo, 23 Cal.App.5th 1109, 1113(2018); accord, Westamerica Bank v. City of Berkeley, 201 Cal.App.4th 598, 608 (2011) [the interpleader plaintiff “‘must allege facts showing a reasonable probability of double vexation’ [citation] or a ‘valid threat of double vexation’”].)  However, such a challenge or objection is forfeited if it is not made during the initial phase of the proceeding.  Nothing in the record indicated that Trustee ever demurred to the complaint in interpleader or formally challenged interpleader’s right to interplead the rent funds. 

Prevailing Party, Special Fee Shifting Statutes: Denial Of Attorney’s Fees To Requester Who Received Information Under CPRA After Petitioning For Writ Of Mandate Affirmed On Appeal

Requester’s Litigation Was Not The Catalyst For The Disclosure Of The Information Requester Sought Under The CPRA.

            Under the California Public Records Act (CPRA), a trial court “shall award court costs and reasonable attorney’s fees to the requester should the requester prevail in litigation filed pursuant to this section.” (Gov. Code § 6259(d).)  However, determination as to whether the requester prevailed is left to the trial court’s discretion.

            In Austin v. Trustees of the Cal. State University, Case No. D078950 (4^th Dist., Div. 1 October 11, 2022) (unpublished), requester received the crime victim’s name he sought from California State University (San Marcos) after filing a petition for writ of mandate alleging denial of the CPRA request.  However, the trial court denied requester’s motion for attorney’s fees – finding requester’s litigation was not the catalyst for the disclosure of the victim’s name, and that the denial of his CPRA request was the result of requester’s failure to follow the publicly posted process for his request and submitting the request to the wrong department.  Once requester’s CPRA request made its way to the correct department, the information was provided – a result that could have been achieved without litigation.  As a result, the trial court found that requester had not prevailed within the meaning of the CPRA, and was not entitled to recover fees.  The 4/1 DCA found the trial court’s fee order was supported by substantial evidence, which showed that the litigation was not the motivating factor behind the disclosure of the information requester sought, and affirmed.

Costs, Prevailing Party: $2.15 Million Fee Order Affirmed, But $205,480.27 In Not Court-Ordered Electronic Document Hosting Charges, Denied, Were Ordered For Consideration On Remand

Decision Looks Like It Recognizes That The Modern Costs Of ESI Discovery Expenses May Be Compensable In The Lower Court’s Discretion.

            In Russo v. Andrews, Case No. A155999 et al. (1^st Dist., Div. 5 Sept. 28, 2022) (unpublished), defendants beat plaintiff in a contentious LLC operating agreement dispute, with defendants awarded damages and equitable relief on their cross-complaint except for one cause of action.  The fees order and one aspect of a cost award were at issue on appeal.

            The trial judge awarded defendants $2.15 million as prevailing parties.  The appellate court agreed, because the defendants/cross-complainants achieved their primary litigation objectives on capital contributions, dilution, and management ouster issues.

            That took the Court of Appeal to the trial judge’s denial of $205,480.77 in non-court-ordered electronic document hosting charges which were requested by the defense, an issue which had to be remanded.  That cost was neither allowed nor prohibited under the CCP § 1033.5 regime such that the lower court had discretion on the issue.  However, the record showed that the trial judge believed it did not have discretion, so the matter went back.  However, the panel made it clear that electronic hosting charges, even those just voluntarily done without a court order, may be fair game for a costs award.

Prevailing Party: Lower Court’s Determination That Cross-Defendant Did Not Prevail In Lawsuit, Where Cross-Defendant Paid Some Settlement Funds To Plaintiff and Dueling Summary Adjudication/Motions Were Granted, Was No Abuse Of Discretion

Cross-Defendant Did Not Obtain Its Crucial Litigation Objectives.

            Catalina Media Development, LLC v. Thyssenkrupp Elevator Corp., Case Nos. B306012/B309162 (2d Dist., Div. 1 July 20, 2022) (unpublished) demonstrates how a discretionary no “prevailing party” determination is not easily overturned unless it is lopsided in nature.

            In this one, a servicer responsible for elevator maintenance was sued on cross claims by the owner of a building when a personal injury plaintiff allegedly was injured in an elevator incident. The servicer lost a summary adjudication motion on the duty to defend under a contractual indemnification clause vis-à-vis owner, both sides settled with plaintiff (servicer paid $99,000 and owner $11,000), and owner lost a summary judgment by servicer under which servicer had no ultimate liability to owner.  The lower court granted routine costs to servicer and against owner based on the summary judgment on owner’s cross-complaint, but it denied any attorney’s fees to servicer.

            Servicer’s appeal of the “no prevailing party” determination as to fees did not result in any change.  With respect to main litigation objectives, servicer did not achieve them because (1) it did not get its legal defense costs paid; (2) it did not beat back the obligation to pay owner’s defense costs under a duty to defend analysis; and (3) it did have to pay plaintiff some settlement moneys.  The dueling rulings on the summary adjudication/judgment motions was evidence that the parties got mixed results.   

POOF!, Prevailing Party: Court Of Appeal Determines That Defendant Did Not Prevail Such That $454,071.50 Fee And Additional Costs Award To County Went POOF!

This Was A 2-1 Decision; Dissenting Justice Would Have Given Deference To Trial Court’s Reversed Prevailing Party Determination.

            Just to show how prevailing party determinations can be to subject to different interpretations, we now post on Youssef v. County of Los Angeles, Case Nos. B302773/B306187 (2d Dist., Div. 1 July 15, 2022) (unpublished).  The equities clearly figured into the result on appeal.

            What happened here is that plaintiff filed suit against L.A. County for failure to live up to the terms of a wrongful termination settlement agreement, failing to classify his termination as a voluntary resignation in its computer systems.  Along the way, County stipulated that it had not complied and agreed to provide a direct human resource contact to divulge no more than basic information about his former employment with the County.  However, a jury found that plaintiff suffered no damages and County did not breach the settlement agreement by providing information to prospective employers.  The lower court granted $454.071.50 in attorney’s fees to County as the prevailing party and against plaintiff under a settlement agreement fees clause, as well awarding routine costs to County.

            The 2/1 DCA reversed the fees and costs awards as a matter of law, in a 2-1 opinion.  The majority decided that the County’s stipulation effectively granted plaintiff injunctive relief and that County had admitted that it breached the settlement agreement, which occurred years into the litigation.  Although plaintiff failed to obtain damages, he achieved his main goal to require the County to comply with the settlement agreement.  That meant that no party prevailed such that the huge fee award against plaintiff was unjust.  The dissenting justice saw things differently:  plaintiff did not garner damages and the County was vindicated as to prospective employer liability—such results vindicated the lower court’s prevailing party determination even though the majority came to the opposite result.

            BLOG OBSERVATION—The result in this case reminds me of what Retired Judge Tevrizian (now an independent neutral) used to sometimes say about cases where an attorney’s fees award was a matter of discretion, “pocketbook” may mean that fees are not awarded under the right circumstances.  That seemed to be the case here. 

Prevailing Party, Section 1717: Performance Bond Surety Protecting Contractor Was Not The Prevailing Party Under Civil Code Section 1717 Where City Defensed Contractor’s Contract Claims And Surety Held City’s Contractual Recovery To Just $1.00

Lopsided Results May Make One A Prevailing Party, But The Outcome Was Mixed So The Lower Court Had Discretion To Determine No Side Prevailed.

            In the Civil Code section 1717 area, a prevailing party is one which has only “good news” as far as prevailing in litigation.  Anything else, unless a result is overwhelmingly lopsided, means the lower court has discretion to determine what side prevailed or to determine no one prevailed.

            Whether the outcome was “lopsided” was the prime issue considered on appeal in City of Los Angeles Dept. of Airports v. U.S. Specialty Ins. Co., Case No. A162183 (1^st Dist., Div. 5 June 15, 2022) (published). 

            What happened is that contractor basically claimed that L.A. city was at fault in breaching a contract with contractor (although performance bond surety was protecting contractor’s interest as it had to under the performance bond).  In turn, city claimed contractor was at fault and independently sought $3.4 million in damages under its own contract claim against contractor.  At the end of the day, contractor lost its claims, and city won its contract claim to the nominal tune of $1.00.  After a prior appeal determined that a contractual provision was a real fees clause rather than an indemnity provision, both sides moved for fees.  The lower court denied both requests, determining the outcome was mixed so that no one prevailed.

            Surety appealed the fee denial, but that determination was affirmed on appeal by the 1/5 DCA.  Keeping in mind that contractor and performance bond surety were “lockstep” in the litigation, no abuse of discretion was committed by the lower court.  After all, contractor lost its claims while city vindicated that it was not at fault as well as won on its contract claim, albeit only gaining a $1 pyrrhic victory.   Even though surety did beat back the $3.4 million damages claim by city, surety did not vindicate contractor’s claims.  The results were mixed; this specific case was not “lopsided” under the circumstances to dictate a legal determination that surety prevailed for section 1717 purposes. 

            We will note that the lower court did a good job of defining surety’s litigation objectives so that the appellate court had a nice compass to use when deciding the case.  This counsels litigation practitioners to develop a good record and aid the lower court in articulating the litigation objectives when a prevailing party contest is at issue—this will provide a “road map” for jurists considering the issue at all levels of judicial scrutiny.