CALIFORNIA ATTORNEY'S FEES

Block Billing, Special Fee Shifting Statute: Nike Is Awarded About $260,000 In Attorney’s Fees Against Michael Avenatti Under The Mandatory Victims Restitution Act

Block Billing Hampered Apportionment Of Fees, With District Judge Only Awarding About A Third Of The Ask.

            It is not often that we post on a criminal case, but the publicity generated and interesting fee-shifting statute involved in USA v. Avenatti, Case No. (SI) 19 Cr. 373 (PGG) (S.D.N.Y. Doc. 34, Mem. and Order Feb. 14, 2022) invited a post on this decision.

            Under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A(b)(4), attorney’s fees can be paid to a criminal victim where that victim’s attorneys render assistance at the request or inducement of a governmental criminal case.  However, only governmentally-related work can be awarded, with the need to apportion out private investigation by the victim such as analyzing court pleadings or attending motion hearings.  (Lagos v. U.S., 132 S.Ct. 1684, 1690 (2018).) 

            Nike was found to be a victim in the criminal extortion case brought by the U.S. against attorney Michael Avenatti.  Nike’s attorneys Boies Schiller sought $856,162 in attorney’s fees for helping federal prosecutors bring charges against Mr. Avenatti.

            U.S. District Judge Paul G. Gardephe agreed Nike was entitled to fees under MVRA, but he found the need to segregate out compensable and noncompensable work efforts.  The problem which handicapped apportionment was block billing by Boies Schiller.  So, District Judge Gardephe disregarded entirely all block billed entries which contained one or more noncompensable entries.  When that was done, $259,800.50 was the fee award, around a third of the request.

Family Law, Special Fee Shifting Statutes: $43,000 Fee Award To Prevailing Petitioner In An Extensive DVRO Proceeding Is Affirmed On Appeal

Current Version Of Family Code Section 6344 Is Retroactive To Cases Pending On Its Effective Date, With Fee Award Not Being Seen As Excessive In Nature.

               Prevailing petitioner (ex-wife) was awarded $43,000 in attorney’s fees imposed upon her ex-husband under Family Code section 6344 in a DVRO proceeding.  That award was affirmed on appeal in Marriage of Stephanie & Kyle N., Case No. D084263 (4^th Dist., Div. 1 Nov. 21, 2024) (unpublished).

               The current version of section 6344, effective January 1, 2023, changed the law such that a prevailing petitioner could obtain fees and costs without regard to the petitioner’s ability to pay so long as the respondent had the ability to pay.  The appellate court found that provision was retroactive to petitioner’s matter pending before 2023, adopting the reasoning articulated to that effect in Dragones v. Calkins, 98 Cal.App.5^th 1075, 1081-1082 (2024).)  The amount of the fee award was not excessive because (1) the DVRO proceeding lasted 18 days over a 15-month time span, and (2) husband had the ability to pay, paying his own attorney about twice more than the fee award in ex-wife’s favor.

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.

Special Fee Shifting Statutes: Prevailing Plaintiff Awarded Only Partial Fees Under EAJA Wins Reversal And Remand For Award Of Fully Requested Fees In Case Challenging Social Security Administration’s Denial Of Disability Benefits

Prevailing Plaintiff’s EAJA Fees Could Not Be Reduced Because She Raised Alternative Theories To Support A Single Claim, Even Though The Court Did Not Reach The Alternative Theories In Rendering Judgment In Plaintiff’s Favor.

            The Equal Access to Justice Act (“EAJA”) requires the award of “reasonable attorney fees” to “a prevailing party other than the United States” ” in “any civil action (other than cases sounding in tort)” that are “brought by or against the United States,” “including proceedings for judicial review of agency action, . . . unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A), (2)(A).

            In Nerio Mejia v. O’Malley, Case No. 23-3162 (9^th Cir. November 4, 2024) (published), plaintiff prevailed in a lawsuit challenging the Social Security Administration’s denial of her disability benefits, then moved for $13,426.42 in attorneys’ fees under the EAJA.  The district court determined that the SSA’s position was not substantially justified and that plaintiff was entitled to fees under the EAJA.  However, relying on Hardisty v. Astrue, 592 F.3d 1072 (9th Cir. 2010), the district court awarded only a reduced amount – excluding fees incurred to develop two alternative arguments the district court determined it did not need to reach to render judgment for plaintiff.  

            Citing the Supreme Court’s decision in Hensley v. Eckerhart, 461 U.S. 424 (1983), along with its en banc decision in Ibrahim v. United States Dep’t of Homeland Sec., 912 F.3d 1147 (9^th Cir. 2019) – both of which hold that sufficient grounds for reducing a fee award do not exist where a court rejects or fails to reach alternative legal grounds for a desired outcome  – the Ninth Circuit reversed and remanded with instructions to award the full amount of requested fees.  In so doing, the panel determined that the district court’s application of Hardisty in this case was legal error.  Although, like here, there were undecided arguments in Hardisty, the determining factor in Hardisty for denial of fee eligibility under the EAJA was whether the United States’ position was substantially justified - not whether fees were incurred to develop undecided arguments.

Special Fee Shifting Statutes: The Limitation Of Liability Act For Shipowners Required A Reversal Of A Single Claimant’s Foray Into State Court Based On Third-Party Claims And Requests For Attorney’s Fees Under The Act

The Case Was A Multiple Claimants Matter, With All The Claimants Having To Reach Stipulations With Protections To the Vessel Owner Before The Matter Could Return To State Court.

              Well, we have a maritime proceeding to blog on.

               In In re Live Life Bella Vita, LLC, Case No. 23-55613 (9^th Cir. Sept. 12, 2024) (published), the Ninth Circuit considered the Limitation of Liability Act, 46 U.S.C. §§ 30501-30530, which caps liability so that a shipowner is not on the hook for more than value of the vessel and cargo and which sets up special procedures for a federal court to apportion this money among injured parties. 

               This published case involved a sole injured maintenance driver who argued the Limitation Act did not apply because he fell within the “single claimant” exception, even though the Act does limit liability and keeps injured parties from trying to circumvent the cap by going to state court unless protective stipulations are entered into by the parties.  The district court applied the exception, lifting the federal injunction and allowing the matter to proceed in state court—with adequate stipulations by vessel owner—despite claims by third parties and requests for attorney’s fees.  (Parties seeking attorney’s fees are considered separate claimants.)  In light of the third-party claims and specter of fee recovery, the Ninth Circuit reversed, finding that multiple claimants were involved and that all of those claimants had to sign protective stipulations before the matter could return to state court.

Special Fee Shifting Statute: Where Defendant Voluntarily Compensated Plaintiff After Filing Of Suit, Plaintiff Could Not Claim To Have “Successfully Prosecuted” The Matter For Purposes Of Fees Under The Longshore and Harbor Workers’ Compensation A

Catalyst Theory Was Unavailable Under The Fee-Shifting Statute.

               In Berry v. Air Force Central Welfare Fund, Case No. 23-15551 (9^th Cir. Aug. 29, 2024) (published), plaintiff sued to recover disability benefits from defendant under the Longshore and Harbor Workers’ Compensation Act (Longshore Act).  After suit was filed, defendant voluntarily paid all the compensation plaintiff was owed.  Plaintiff sought attorney’s fees under section 928 of the Act, 33 U.S.C. § 928(a), which allows a claimant to recover fees incurred “in the successful prosecution of” a Longshore Act claim.

               The district judge denied the fee request, and the Ninth Circuit affirmed.  Because defendant voluntarily paid off the claim, the case was moot, and no judicial relief was obtained by plaintiff.  She argued that the catalyst theory applied to a section 928(a) fee request, but the Ninth Circuit found this theory unavailable given the language of the statute and caselaw construing similar language.

Special Fee Shifting Statutes: Denial Of DVRO Resulted In Adverse Fee/Cost Award Of $24,777.38 Against Unsuccessful Petitioning Party

Failure To Oppose The Fee Motion Was Fatal.

               A party prevailing in a domestic violence restraining order (DVRO) can obtain attorney’s fees and costs.  Ex-girlfriend lost a DVRO petition, with the lower court awarding ex-boyfriend $24,777.38 in attorney’s fees and costs.  The appellate court affirmed the awards in Gikkas v. Stern, Case No. A168298 (1^st Dist., Div. 1 July 1, 2024) (unpublished), finding especially dispositive ex-girlfriend’s failure to oppose the fee/cost request below.

Paralegal Time, Special Fee Shifting Statutes: Reduced Change Of Venue Fee Award Of $9,019.50 To Certain Defendants Affirmed In Part

Lower Court Properly Did Not Award Self-Represented Attorney Any Fees Relating To Himself (But Okay For Other Codefendants), But Matter Remanded To Apportion Fees And To Award Paralegal Compensation For A Law Clerk’s Work.

               Civil Code section 396b, subd. (b) allows a lower court, in its discretion, to award attorney’s fees to a defendant successfully moving to change venue where the other side refused to stipulate to a change and the plaintiff failed to file the suit in good faith in the transferor venue.   That statute was at issue in California Capitalism Associates, LLC v. Marston, Case Nos. E078759 et al. (4^th Dist., Div. 2 June 13, 2024) (unpublished).

               There, plaintiffs entered into a joint venture agreement with the Chemehuevi Indian Tribe about establishing a cannabis and industrial complex in San Bernardino.  After the Tribe terminated the joint venture agreement for an alleged breach, plaintiffs filed a lawsuit against their attorneys and main attorney’s law firm in San Bernardino County even though all but one attorney resided and did business in Mendocino County (where the legal work was performed).  Defendants moved to change venue from San Bernardino to Mendocino County, after plaintiffs refused to stipulate to a change, with the lower court granting the motion and then awarding a reduced fee award under section 396(b), subd. (b) from the “ask” to the tune of $9,019.50.  The lower court denied fees to attorney Marston because he was functionally representing himself on the venue change motion, but it also denied fees for Marston’s work on behalf of other codefendants.  Additionally, the lower court denied fees for the work of a law clerk. 

               The 4/2 DCA decided the record showed that the change of venue opposition was not in good faith based on the location of the attorneys and where the work was performed.  The reduced fee award was proper, because the lower court found that a very experienced attorney should have charged $350 per hour, not $550 per hour (even though this would have been appropriate for general Indian law work), mainly because the venue motion was not that complex.  The lower court also properly reduced the award for unrelated venue motion work and for excessive time spent on the reply brief/venue change oral argument preparation work.  The appellate court agreed that attorney Marston was functionally representing himself so the Trope prohibition applied as to work benefitting himself, but that he could represent the other codefendants such that denying fees for that work was erroneous—a remand was necessary to determine a reasonable fee award and proper apportionment of the fees.  Finally, it was error for the lower court to deny paralegal compensation for the law clerk’s work on the motion, another remand point for further proceedings.  (See Guinn v. Dotson, 23 Cal.App.4^th 262, 269 (1994); Roe v. Halbig, 29 Cal.App.5^th 286, 312 (2018) [paralegal compensation should be generally allowable].)

Costs, Deadlines, Probate, Reasonableness Of Fees, Special Fee Shifting Statutes: $175,252.50 Fee Award Under Financial Elder Abuse Statute Affirmed On Appeal

Fee Request Reduced Down From $203,865; Two Awarded Routine Costs Components Remanded For A Further Hearing.

               In Thompson v. Ito, Case No. G061437 (4^th Dist., Div. 3 June 12, 2024) (unpublished), a defendant losing a trust undue influence case and determined to have committed financial elder abuse was hit with an adverse attorney’s fees award of $175,252.50 out of a requested $203,865 (reductions made based on excessive hourly rates, clerical work, and some discovery work not allowed by the lower court).  The award was made under Welfare & Institutions Code section 15657.5, providing that a fee award is mandatory where financial elder abuse is found.  The lower court also awarded the full costs request of $27,961.07 to the winning plaintiff. 

               Defendant’s appeal was mainly unsuccessful except for a remand to have a further hearing on two components of the costs award.

The argument that no attorney’s fees could be awarded while a merits appeal was pending (with the financial elder abuse findings affirmed earlier) lacked merit because the issue was a collateral matter not embraced within the merits judgment.  (Bankes v. Lucas, 9 Cal.App.4^th 365, 369 (1992), superseded by statute on other grounds; Korchemny v. Piterman, 68 Cal.App.5^th 1032, 1052 (2021).)

               Fees were mandatory against a party found to have committed financial elder abuse, so no “prevailing party” analysis was necessary.

               The fee award was no abuse of discretion, given that the lower court did reduce the request, that appellant raised new arguments on appeal (with those challenges forfeited), and that appellant failed to specify which block-billed entries should be disallowed.

               With respect to the costs award, appellant did not file a motion to tax costs, but the lower court did not err in allowing entertainment of his fee opposition challenges to costs.  Two components, the award of lodging and parking costs (which are discretionary items to be allowed or disallowed) for one person—totaling $2,468.67—was reversed and remanded because it was unclear the role of the claiming person in the case.  However, because the costs claimant would be given the opportunity to meet this objection, the matter was remanded to have a hearing on these two costs components only.

               Justice Motoike authored the 3-0 unpublished opinion.

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.

Deadlines, Special Fee Shifting Statutes: City Obtaining Preliminary Injunction As To Public Nuisance On Marijuana Dispensaries Was Entitled To Attorney’s Fees, But Not Costs

No Costs Memorandum Was Required To Seek Fees, But City Failure’s To File Did Bar It From Obtaining Costs—Kaufman Decision Found Applicable To Statutory Fee Request.

               In Green Lotus Entertainment, Inc. v. City of Montclair, Case No. E079531 (4^th Dist., Div. 2 May 16, 2024) (unpublished), City obtained a preliminary injunction against certain cross-defendants, arguing that they were a marijuana dispensatory constituting a public nuisance.  The trial court granted the preliminary injunction, with the City then bringing a motion to obtain attorney’s fees and other costs under Civil Code section 3496.  [No one contested that section 3496 did allow for a fees or costs order where a governmental entity enjoyed uses involving controlled substances.]  Despite no costs memorandum being filed by City, the lower court granted it attorney’s fees of $113,387.50 and routine costs of $5,208.60.

               The 4/2 DCA affirmed the fees award, but it reversed the costs award.  Cross-defendants argued that City’s failure to file a costs memorandum precluded both a fees award and costs award.  Half correct, according to the Court of Appeal.  There was no need for a costs memorandum to be filed with respect to a fee request, finding that the reasoning in Kaufman v. Diskeeper Corp.,229 cal.App.4^th 1 (a contractual fees case) was apt in a statutory fee request case, finding no substantive difference so as to require anything other than a noticed motion for fees in both situations.  However, a different matter for costs:  a costs memorandum needed to be filed, such that the $5,208.60 routine costs went POOF! on appeal as a matter of law.

Deadlines, Special Fee Shifting Statutes: City Obtaining Preliminary Injunction As To Public Nuisance On Marijuana Dispensaries Was Entitled To Attorney’s Fees, But Not Costs

No Costs Memorandum Was Required To Seek Fees, But City Failure’s To File Did Bar It From Obtaining Costs—Kaufman Decision Found Applicable To Statutory Fee Request.

               In Green Lotus Entertainment, Inc. v. City of Montclair, Case No. E079531 (4^th Dist., Div. 2 May 16, 2024) (unpublished), City obtained a preliminary injunction against certain cross-defendants, arguing that they were a marijuana dispensatory constituting a public nuisance.  The trial court granted the preliminary injunction, with the City then bringing a motion to obtain attorney’s fees and other costs under Civil Code section 3496.  [No one contested that section 3496 did allow for a fees or costs order where a governmental entity enjoyed uses involving controlled substances.]  Despite no costs memorandum being filed by City, the lower court granted it attorney’s fees of $113,387.50 and routine costs of $5,208.60.

               The 4/2 DCA affirmed the fees award, but it reversed the costs award.  Cross-defendants argued that City’s failure to file a costs memorandum precluded both a fees award and costs award.  Half correct, according to the Court of Appeal.  There was no need for a costs memorandum to be filed with respect to a fee request, finding that the reasoning in Kaufman v. Diskeeper Corp.,229 cal.App.4^th 1 (a contractual fees case) was apt in a statutory fee request case, finding no substantive difference so as to require anything other than a noticed motion for fees in both situations.  However, a different matter for costs:  a costs memorandum needed to be filed, such that the $5,208.60 routine costs went POOF! on appeal as a matter of law.

Reasonableness Of Fees, Special Fee Shifting Statutes: $47,513.67 Fee Award To Hospital and Medical Staff Affirmed On Appeal In Peer Review Proceeding

$71,270.50 Request, Reduced, Was Proper, With Appellant’s Technical Arguments Rejected.

               In Nowzari v. Torrance Memorial Medical Center, Case No. B321862 et al. (2d Dist., Div. 2 May 2, 2024) (unpublished), a plaintiff physician’s hospital privileges were restricted by a peer review body, triggering physician’s filing of a petition for a writ of the mandate to overturn the board’s decision although the petition was denied.  Hospital and medical staff defendants were awarded statutory fees of $47,513.67, two thirds of the request, under Business and Professions Code section 809.9.

               The 2/2 DCA affirmed.  Section 809.9 empowers a trial court, when litigating a writ petition challenging a peer review decision, to award costs inclusive of reasonable attorney’s fees to the party who “substantially prevails” on any claim that is “frivolous, unreasonable, without foundation or in bad faith”—a sanctions provision.  A claim is “without foundation” where it is factually or legally baseless, groundless, or without support, and a claim is “unreasonable” where no reasonable attorney would find it tenable.  (Smith v. Selma Community Hospital, 188 Cal.App.4^th 1, 30-32 (2010).)  Because these components are determined objectively, they are subject to de novo review.  Independently reviewing the record, the appellate court found no error.  It also dismissed technical arguments we have seen raised in many fee or sanctions proceedings in the past:  (1) attorney’s fees need not be pled except in cases of default (Carlsbad Police Officers Assn. v. City of Carlsbad, 49 Cal.App.5^th 135, 142 n. 3 (2020)); and (2) the trial court was not divested of jurisdiction to determine a fee/sanctions award once physician filed his notice of appeal (Code Civ. Proc., § 916; Robertson v. Rodriguez, 36 Cal.App.4^th 347, 360 (1995)).

Special Fee Shifting Statutes: Utility Properly Awarded $82,000 In Costs And Attorney’s Fees In A Case Alleging Defendant Knowingly Diverted Electrical Power To Support A Cannabis Grow Operation

Civil Code Section 1882.2 Was The Fee Entitlement Predicate For The Award.

               Civil Code sections 1882.1 and 1882.2 allow a utility to obtain compensatory damages, trebles damages, and costs/reasonable attorney’s fees against a party who commits or aids and abets a diversion of utility services by any means whatsoever.  (§ 1882.2 is the specific costs and fee shifting statute.)

               Defendant, in Sacramento Municipal Utility Dist. v. Kwan, Case No. C097382 (3d Dist. Apr. 30, 2024) (published), was found to be liable to a utility for knowingly diverting electrical power without paying for it in connection with a cannabis grow operation, with the merits judgment affirmed on appeal.  The compensatory damages award, after trebling, was $82,661.13.  The costs of suit and attorney’s fees award was $82,000, which stood up after the merits determination was determined against defendant.  The moral here, in line with our Mission Statement, is that attorney’s fees are “the tail that wags the dog in litigation."  Deane Gardenhome Assn. v. Dentkas, 13 Cal.App.4th 1394, 1399 (1993).

Special Fee Shifting Statutes: In A 2-1 Opinion, 4/1 DCA Affirms Attorney’s Fees Award To Prevailing Plaintiff Under A Stipulated Judgment As A Catalyst In A California Public Records Act Case

Dissenting Justice Believed Prevailing Party’s Last Year Of Litigation Was Unnecessary Such That Fees For Those Efforts Were Unreasonable.

               In Castanares v. City of San Diego, Case No. D082562 (4^th Dist., Div. 1 Apr. 30, 2024) (unpublished), a lower court entered judgment based on the parties’ stipulation that City had violated the California Public Records Act (CPRA) and plaintiff was the prevailing party.  The lower court awarded plaintiff CPRA fees, reducing the hourly rate of one senior attorney, reducing lodestar hours from 20 to 12 hours, and rejecting a positive multiplier request.  City appealed.

               The fee award was affirmed in a 2-1 unpublished opinion.  The majority found that plaintiff was a catalyst for City to produce documents, that City took contradictory positions in informal settlement discussions or reactions to plaintiff’s CCP § 998 offers (before finally relenting in the stipulated judgment), and that the fees were not unreasonably inflated given the reduction in one attorney’s hourly rate and the reduction in lodestar hours.

               The dissent saw things much differently.  The dissenting justice believed that the City had consistently decided to stipulate to a judgment in settlement discussions and took positions in answers to avoid a default, rendering a year of litigation unreasonable.  These perceptions were cemented by plaintiff’s counsel’s concession at oral argument that much of the litigation centered on getting an admission from City that the CPRA violation was intentional, which did not have substantive significance.  The dissent felt that only about 2.4 hours were compensable, not the additional year of litigation work that he determined to be unnecessary.   

Special Fee Shifting Statutes: Fee Award For Hospital Affirmed And Fee Award For Medical Staff Reversed In Peer Review Dispute Involving Doctor’s Suspension Of Hospital Privileges

Fee Shifting Centered On Business & Professions Code Section 809.9.

               One of the interesting aspects of posting on California fee decisions is we get to explore some special fee shifting statutes.  Business and Professions Code section 809.9 is a specialized one allowing for substantially prevailing party fees to the winner in a peer review hospital privilege suspension case.  That section states:  “In any suit brought to challenge an action taken or a restriction imposed which is required to be reported pursuant to Section 805, the court shall, at the conclusion of the action, award to a substantially prevailing party the cost of the suit, including a reasonable attorney’s fee, if the other party’s conduct in bringing, defending, or litigating the suit was frivolous, unreasonable, without foundation, or in bad faith. For the purposes of this section, a defendant shall not be considered to have substantially prevailed when the plaintiff obtains an award for damages or permanent injunctive or declaratory relief. For the purpose of this section, a plaintiff shall not be considered to have substantially prevailed when the plaintiff does not obtain an award of damages or permanent injunctive or declaratory relief.”

               Plaintiff doctor lost such a proceeding, leading to a fee award in favor of the hospital and medical staff defendants.  In Asiryan v. Medical Staff of Glendale Adventist Medical Center, Case No. B316313 et al. (2d Dist., Div. 1 Feb. 29, 2024) (unpublished), the appellate court affirmed fees to the hospital but reversed fees to the medical staff under section 809.9.

               Here is its discussion of section 809.9: [Plaintiff] contends the court erred in concluding fees were appropriate under section 809.9, because her “conduct in bringing, defending, or litigating the suit” was not, as the statute requires, “frivolous, unreasonable, without foundation, or in bad faith.”  (§ 809.9.) Whether an action is “frivolous,” “unreasonable,” or “without foundation” under a statute authorizing an award of
costs or attorney fees presents a question of law we review de novo where, as here, the pertinent facts are not in dispute. (Smith v. Selma Community Hospital (2010) 188 Cal.App.4th 1, 7 & 30–33 (Smith).) In analyzing this issue, courts employ the objective standard applicable to sanctions statutes, which looks to what a hypothetical reasonable attorney would do under the circumstances. (Id. at pp. 32–33 [in reviewing an award of attorney fees under section 809.9, the court “conduct[ed] an independent review . . . appl[ying] the any-reasonable-attorney standard as a matter of law” and “[i]f the conduct in question meets this standard, then the record also would contain substantial evidence supporting a finding of fact that the conduct was reasonable”]; see Mir v. Charter Suburban Hospital (1994) 27 Cal.App.4th 1471, 1485 [“[b]ecause section 809.9 contains the same type of language as these other [sanctions] statutes, it is more appropriately construed as a sanctions measure specifically applicable to suits challenging medical peer review decisions”].) “[A] matter is frivolous if any reasonable attorney would agree it is completely without merit in the sense that it lacks legal grounds, lacks an evidentiary showing, or involves an unreasonable delay.” (Smith, supra, at p. 33.) “A claim is factually frivolous if it is ‘not well grounded in fact’ and it is legally frivolous if it is ‘not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.’ [Citation.]” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440 (Peake); Smith, supra, at p. 40 [approving of section 809.9 analysis applying this definition].) An action is “without foundation” if there is no direct or circumstantial evidence supporting the plaintiff ’s factual assertions, or if there is no statute, regulation, case law, or other legal authority supporting the plaintiff’s legal contentions. (Smith, supra, at pp. 30–31.)  The terms “frivolous,” “unreasonable,” and “without foundation” partially overlap. To determine whether an action may be described by any one of them, a court must assess the grounds underlying the plaintiff ’s factual or legal positions and the reasoning process linking those grounds to the ultimate conclusions advocated by the plaintiff. (See id. at p. 33.)

               Applying these principles, the Asiryan panel found that plaintiff’s argument as to the hospital had no foundation, but that the lower court’s denial of summary judgment and nonsuit motions as to medical staff meant that a reasonable attorney could conclude there was a basis to go to trial even though plaintiff eventually lost.

Consumer Statutes, Special Fee Shifting Statutes: $264,440 In Attorney’s Fees Affirmed Against Bond Surety Defendant That Issued $50,000 Bond To Auto Dealer Who Used Fraudulent Tactics To Sell A Used Car To Plaintiff

Plaintiff Was Unable to Collect Arbitration Award For Violations Of The Consumers Legal Remedies Act, Leading Her To Successfully Seek Summary Judgment Against Surety Under Veh. Code Section 11711 For Dealership’s Fraudulent Representation

            In Gonzalez v. Hudson Insurance Co., Case Nos. D080166/D081686 (4^th Dist., Div. 1 February 13, 2024) (unpublished), auto dealer sold a car to plaintiff and falsely represented to her that the car had been in no accidents, had not sustained prior collision damage, and had no frame damage.  When Plaintiff became aware that auto dealer’s representations were fraudulent, she sued for violations of the Consumers Legal Remedies Act, among other causes of action, and received an arbitration award against the auto dealer for each of her causes of action, including the fraud-based violations of the CLRA. 

            Plaintiff was unable to collect from the dealership – leading her to successfully seek summary judgment against the dealership’s bond surety under Veh. Code § 11711.  Plaintiff then moved for attorney’s fees and costs against bond surety – arguing that fees were mandatory under the CLRA because she had prevailed on her CLRA cause of action, and the bond surety’s liability was in line with the dealership’s liability.  The trial court agreed, and ordered a $264,440 fee award to Plaintiff, with $120,581 of the award from arbitration-related fees and the balance from post-arbitration fees with a 0.5 multiplier.

            Bond surety appealed both the summary judgment grant and the fees award, but provided no legal analysis and citation to the record to support its claim that the trial court erred in finding it liable on the bond/granting summary judgment – resulting in the 4/1 DCA affirming the summary judgment.

            As to the fees order, bond surety argued that section 11711 does not authorize a fees award, that the combined liability for damages and attorney’s fees exceeded the amount of the bond it issued the dealership, and that the trial court abused its discretion in calculating the fees award because it applied a 0.5 multiplier to the lodestar for the post-arbitration fees.

            The appellate panel was not persuaded.  Following the holdings in Harris v. Northwestern National Ins. Co. (1992) 6 Cal.App.4th 1061, Pierce v. Western Surety Co. (2012) 207 Cal.App.4th 83, and Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734, the 4/1 DCA affirmed.  First, the fees were awarded under the CLRA, not section 11711, and as the prevailing plaintiff under the CLRA’s mandatory fee provision, Plaintiff was entitled to recover her attorney’s fees from the dealership as an item of costs.  Under Civ. Code § 2808, the liability of a surety is commensurate with that of the principal, meaning where the dealership was liable for fees as an item of costs based on conduct secured by the bond, so too was the surety – even where the award exceeds the amount of the bond.  As to the trial court’s application of the 0.5 multiplier, the panel found no abuse of discretion.

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.

Special Fee Shifting Statutes, Section 998: Kinney Opinion Now Certified For Publication

Opinion Illustrates How Valid Section 998 Offer Can Reduce Fee Exposure Under A Fee Shifting Statute.

            On December 31, 2023, we posted on Kinney v. City of Corona, Case No. E079840, which was unpublished at the time.  We can now report that Kinney was certified for publication on January 24, 2024.  It demonstrates how a California Public Records Act fee award had to be reduced because the prevailing party failed to accept a valid CCP § 998 offer which changed the litigation landscape and limited fees based on its operative impact. 

Family Law, Special Fee Shifting Statutes: Court Of Appeal Decides Current Version Of Domestic Violence Prevention Act, Applies Retroactively To Cases After 2023, Justifying A Fee Award

Family Code Section 6344 Applies Retroactively.

            In Dragones III v. Calkins, Case No. B329659 (2d Dist., Div. 7 Jan. 17, 2024) (published), the 2/7 DCA confronted whether Family Code section 6344, effective 2023, made it easier for a prevailing petitioner to obtain fees and harder for a prevailing respondent to obtain fees in actions brought under the Domestic Violence Prevention Act.  The lower court awarded prevailing petitioner $6,000 in fees out of a $13,659 “ask.”  That award was affirmed on appeal.  Newly enacted Family Code section 6344, plus procedural rules relating to fees awards, warranted affirmance of the fee award based on application of retroactivity principles.

Section 998, Special Fee Shifting Statutes: $43,300 Fee Award Under California Public Records Act Statute Was Justified

. . . However, Fee Award Had To Be Reduced Down To $2,475 Based on Successful Defense § 988 Offer With Respect To Post-Offer Fees.

            On appeal, you win some, you lose some, or the appellate court modifies judgments in varying amounts.  That third result is what occurred in Kinney v. City of Corona, Case No. E079840 (4^th Dist., Div. 2 Dec. 29, 2023) (unpublished).

            The appellate court found there was justification for a $43,300 fee award to plaintiff and against City of Corona under the fee-shifting statute in the California Public Records Act.  However, because plaintiff rejected a successful CCP § 998 offer which the reviewing court found clear and unambiguous (unlike the lower court), the fee award had to be reduced down to $2,475 because post-offer fees were not recoverable based on 998’s shifting calculus. 

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

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

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

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

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

Special Fee Shifting Statutes: Respondent Obtaining Dismissal Of Elder Abuse Restraining Case After Petitioner Died Was Properly Awarded Partial Fees For Obtaining The Dismissal

Only Motion To Dismiss Fees Were Awarded.

            Maroudas v. Carrillo, Case No. H050224 (6^th Dist. Nov. 14, 2023) (unpublished) is a situation where respondent was awarded attorney’s fees and costs under Welfare & Institutions Code section 15657.03(t), the elder abuse fee shifting statute, for obtaining a dismissal of a petition after the petitioner died.  The lower court only granted lodestar fees and costs for obtaining the dismissal, using the definition of a prevailing party under CCP § 1032 (where a defendant obtains a dismissal).  The appellate court found these limited fees and costs were justified, especially where the fees were only $5,150 and costs were $158.52.

Lodestar; Special Fee Shifting Statutes: In Two MRL Cases, Fees And Costs Affirmed In One Case, But A “Quarterling Approach” To Fee Reduction Required A Remand In The Other Case

Mobile Home Park Owner Entitled To Prevailing Party Fee Recovery For Obtaining Free And Clear Ownership After A Public Sale Of An Abandoned Lot Where Lease Fees Were Owed.

            In this post, we summarize two lengthy fees/costs decisions arising under Civil Code section 798.85, the fees/costs shifting provision of the Mobilehome Residency Law (MRL).  Both cases ultimately determined, after some prior appeal decisions, that a mobile home park owner seeking to quiet title to property acquired after a mobile home lot owner abandons the lot can obtain fees and costs because such quiet title efforts relate to the termination, abandonment, and public warehouse sales provisions of the MRL.

            The first one, Canyon View Limited v. Nationstar Mortgage, Case No. B312642 (2d Dist., Div. 1 Oct. 26, 2023) (unpublished) involved a mobile home park owner who did recover possession of an abandoned lot, where lease fees were still delinquent, through a public sale which gave the interest in the lot “free and clear” of prior interests, including a loan against the lot.  However, lender failed to remove certain documents which clouded title to the lot, prompting a quiet title action by park owner against the lender.  Because this action was successful against lender, it arose out of the MRL.  Park owner was awarded $470,338.23 in fees and $24,209.86 in costs after rejecting lender’s three § 998 offers which eventually agreed to the relief plus $70,000 in fees to park owner.  The fees and costs orders were affirmed because (1) a “dividing line” by the defense for recoverability of fees was unreasonable, and (2) the 998 offers were not more favorable because pre-offer fees at the time exceeded the $70,000 ultimate offer (they were over $112,000 in amount).

            The second one, Canyon View Limited v. Bank of America, N.A., Case No. B312259 (2d Dist., Div. 1 Oct. 26, 2023) (unpublished) concerned similar issues for differing parties, but with a lower court on remand from a prior appeal awarding fees under a “quarterling approach” (reducing certain fees by a quarter even though different actions were concerned and in one case there was no real concern with overbilling reductions).  The appellate court found this approach too arbitrary, remanding with instructions to not use this approach but follow the lodestar methodology (although not hampering the trial judge from making reductions to arrive at a reasonable fee).

Costs, Special Fee Shifting Statutes: In “Close Call” Situation, 9th Cir. Majority Affirms Denial Of EAJA And Bad Faith Atty’s Fees Where Government Lost Case Due To Unreliable Opinion Of Its Expert, But Reverses Denial Of Certain Deposition Costs

Dissenting Circuit Judge Would Have Awarded Defendants Fees Because DOL’s Case Was Not Substantially Justified When Viewed Under An Objective Standard.

            The Equal Access to Justice Act (EAJA) was enacted to curb abusive and costly lawsuits involving the federal government, authorizing a prevailing party to seek attorney’s fees and costs from a federal agency if the agency’s litigation position was not “substantially justified” or the government acted in bad faith under 28 U.S.C. § 2412(b), (d)(1)(A), (d)(2)(A). The EAJA also empowers a court to award taxable costs.  28 U.S.C. § 2412(a).

            These statutory provisions were at issue in Su (Dept. of Labor Secretary) v. Bowers, No. 22-15378 (9^th Cir. Oct. 25, 2023) (published).  DOL lost an overinflated valuation case against defendants after the district court rejected the opinion of DOL’s star expert witness.  Although defendants were awarded certain costs, the federal judge did not award fees after finding that the “substantially justified” or “bad faith” requirements were not met.  The Ninth Circuit, in a 2-1 opinion, affirmed even though acknowledging the case was “a close call.”   DOL could not predict that its expert’s opinion would be considered entirely faulty, even though one piece of it was, such that its actions were substantially justified and not taken in bad faith.  However, the entire panel did reverse the refusal to award deposition costs to defendants because there was a clear error given that the depositions were properly necessary for summary judgment purposes.

            Circuit Judge Collins dissented from the fee denial order.  He believed that too lax a standard was being used to judge the government’s actions, substituting a “could have rationally believed” standard versus an objective “substantially justified” standard.  He would have remanded to see what fees were authorized because eligibility is tied to certain “net worth” requirements of the requesting parties under section 2412(d)(2)(B).

Private Attorney General, Special Fee Shifting Statutes: UC Davis Student, Whose Suspension Was Overturned Through Administrative Writ Proceeding, Properly Denied CCP § 1021.5 Fees, But Matter Remanded To See If Fees Warranted Under Gov. Code § 800

Appellate Court Disagrees That An Investigation Has To Be Wholly Arbitrary Or Capricious For Section 800 Purposes.

            In Doe v. Atkinson, Case No. A166145 (1^st Dist., Div. 1 Oct. 19, 2023) (published), a lower court in an administrative writ proceeding overturned the one-year suspension of a UC Davis junior for violating sexual harassment principles, but denied his request for attorney’s fees under either the private attorney general statute, CCP § 1021.5, or Government Code section 800, which allows a plaintiff to recover up to $7,500 in fees for arbitrary or capricious actions by a public entity or its officers.  Plaintiff appealed.

            The appellate court affirmed the section 1021.5 fees denial, agreeing that the result in the case did not benefit a significant segment of the public and, at best, only a smaller segment of UC students—the main benefit was Plaintiff’s in overturning the suspension.

            But a different result occurred with respect to the section 800 fee denial.  The lower court erroneously determined that the entire investigatory actions had to be wholly arbitrary and capricious, which it did not believe to be the correct standard and criticizing the “wholly” language to the same effect in Kreutzer v. County of San Diego, 153 Cal.App.3d 62, 78 (1984).  Otherwise, very few section 800 fees would be warranted.  A remand was the “call” on the section 800 issue.

Special Fee Shifting Statutes: Prevailing Plaintiff, Found Comparatively At Fault, Was Properly Awarded Attorney’s Fees As Against Defendant Who Entered A Nolo Plea To Felony Driving Under The Influence Of Alcohol Which Caused Injury To Plaintiff

CCP § 1021.4 Was The Fee Shifting Statute.

            Isom v. MacCarthy, Case No. B317433 (2d Dist., Div. 4 Oct. 2, 2023) (unpublished) involved application of CCP § 1021.4, which allows a court in its discretion to award attorney’s fees to a prevailing tort plaintiff as against a defendant who is convicted of a felony driving under the influence of alcohol offense.

            In this case, plaintiff was a passenger in a car driven by defendant, who was above the legal alcohol level and who crashed into obstacles causing injury to plaintiff.  Defendant entered a nolo contendere plea to the DUI felony.  Years later, a jury found defendant was negligent to the tune of almost $15.5 million after finding plaintiff 25% comparatively negligent.  Plaintiff then moved to recover 1021.4 fees of almost $6.2 million based on a 40% contingency fee, with the lower court ordering supplemental briefing under a lodestar approach.  Based on a lodestar analysis, the lower court awarded $535,095 augmented by a 2.0 multiplier, for a total fee award of $1,070,190. 

            Defendant’s appeal to overturn or scale back the fee award was unsuccessful. His main argument was that it was mandatory to reduce the award based on plaintiff’s comparative negligence, but the appellate court concluded nothing in the fee statute required a mandatory reduction even though the lower court could consider this as a factor for reducing the fee request.  (Sommers v. Erb, 2 Cal.App.4^th 1644, 1650 (1992).)  The fee award was no abuse of discretion because the lower court did consider plaintiff’s comparative fault, it was proper to award plaintiff’s attorneys a blended $450 hourly rate (including assessment of that rate for a first year associate), and the multiplier was justified based on the contingency fee arrangement/risks taken by plaintiff’s counsel for a number of years.

Ethics, Retainer Agreement, Special Fee Shifting Provisions: Although Fee Award Against HOA Belongs To Attorney, Attorney Had To Offset For Contingency Fee Already Received

Attorney Was Liable For Substantial Elder Abuse Fees To Prevailing Elderly Client Based On Failing To Properly Offset And Return Money To Client.

            Koehler v. Prinz, Case No. C095229 (3d Dist. Sept. 25, 2023) (unpublished) is a case which shows that attorneys need to be careful when they receive a fee award which belongs to them, discussing the fee award with the client and then agreeing on an offset for contingency fees already received.

            In this one, attorney represented an elderly client and later her son in an HOA water intrusion case, receiving a compensatory settlement from HOA/property manager from which he took an agreed contingency fee of $109,374.  Attorney successfully defeated HOA’s cross-complaint which resulted in a Davis-Stirling Act fee/costs award of $412,075.94, which he retained and used to pay personal expenses.  That brought a dispute between attorney and clients on who owned the fee award and whether a credit should have been made for the $109,374 contingency fee previously received by attorney.  The lower court agreed that the fee award belonged to the attorney, but clients were entitled to an offset for the prior contingency received by attorney.  Elderly client won her financial elder abuse claim against attorney based on these facts, with the lower court awarding her about $167,500 in fees and costs under the financial elder abuse fee-shifting provision.

            The Third District affirmed.  Based on the retainer fee language and conduct of the parties, the appellate court concluded the HOA fee award did belong to the attorney, citing analogous cases in the FEHA, private attorney general, Labor Code, and trade secrets areas.  However, it also agreed that attorney had to make a reimbursement of the prior contingency fee award already paid—which was not done, constituting an ethical violation and financial elder abuse given work on the complaint and cross-complaint were inextricably intertwined.  The wrongful retention of the entire fee award supported the financial elder abuse fee award.

Special Fee Shifting Statutes: $955,500 Fee Award And $83,246.52 Costs Award Affirmed In Elder Neglect Case

Total Compensatory Damages Were $696,833.97.

            As we have observed before in line with our Mission Statement, attorney’s fees can be the game winner where there is a fee-shifting basis—contractual, statutory, or equitable.  Newton v. Enloe Medical Center, Case No. C095324 (3d Dist. Sept. 12, 2023) (unpublished) illustrates that well.

            This was an elder neglect case, which does have statutory fee-shifting provisions in favor of the plaintiff.  Plaintiff won to the tune of $696,833.97 in compensatory damages (including $50,000 in loss of consortium damages to one plaintiff).  The lower court awarded plaintiffs $955,500 in fees and $83,246.52 in costs, determinations affirmed on appeal.  See how the fees/costs stripped the compensatory award by quite a delta, confirming our Mission Statement. 

Special Fee Shifting Statutes: $167,400 Fee Contempt Recovery To California Regional Water Quality Control Board Affirmed On Appeal

Entitlement Was Established.

            Just to show you that we post on arcane issues, we refer you to Cal. Regional Water Quality Control v. Balcom Ranch, Case No. B311434 (2d Dist., Div. 6 Aug. 15, 2023) (unpublished).  There, the Water Board was awarded with a contempt fee recovery under Government Code § 11455.20 and CCP § 1218.  Those entitlement bases were warranted, with the fee award affirmed on appeal.

Special Fee Shifting Statutes: Lower Court’s Denial Of PRA Fees On A Catalyst Theory Affirmed On Appeal

Correlation Is Not The Same As Causation, With This Issue Reviewed For Abuse Of Discretion.

            In Valenti v. City of San Diego, Case No. D080133 (4^th Dist., Div. 1 July 18, 2021) (certified for publication on August 8, 2023), the lower court denied a request for $250,000 in attorney’s fees (lodestar plus a 1.25 multiplier) under the California Public Records Act fee shifting provision, Government Code § 7923.115 (formerly § 6259).  The basis for this denial was that plaintiff’s lawsuit was not a sufficiently substantial cause of the City’s production of public records—put another way, a causation issue.

            The appellate court affirmed the lower court’s denial under a deferential abuse of discretion.   Correlation as to time is not the same as causation, with the facts showing that the City of San Diego simply produced 10 emails in the ordinary course of business.  Also, as a hint for litigators in this area, you should ask for clarification as a PRA petitioner for purposes of obtaining fees because a failure to do so means this is a factor which may result in a fee denial. 

Special Fee Shifting Statutes: County Properly Awarded $26,065.41 In Attorney’s Fees And Costs In Nuisance Abatement Proceeding

Cannabis Cultivation On Residential Property Was The Factual Backdrop.

            Governmental authorities may receive an award of attorney’s fees and costs for abating property nuisances under both state statutes and municipal ordinances, in this case Government Code section 25845(b), (c) and Riverside County Ordinance No. 725.  The County obtained summary judgment against a property owner based on cannabis cultivation on a residential property, stemming from a nuisance abating claim.  The lower court then awarded County $26,065.41 in attorney’s fees and costs under the Government Code and Riverside County Ordinance.  That determination was affirmed on appeal in County of Riverside v. Hucana Trust, Case No. E078588 (4^th Dist., Div. 2 July 11, 2023) (unpublished).  The main challenge was to the $295 hourly rate charged by County attorneys, which varied from a lower rate internally charged to the governmental entity, but this disparity was no reason to overturn the fee award because the hourly rate was reasonable under a lodestar analysis. 

Special Fee Shifting Statutes, SLAPP: $40,000 Civil Harassment Fee Award To The Defense Affirmed, But SLAPP Denial Remanded After California Supreme Court Transfer To See If Step Two Was Satisfied

$84,150 Civil Harassment Fee Request Reduced By More Than 50%.

            Geiser v. Kuhns, Case No. B279738 (2d Dist., Div. 5 May 8, 2021) (unpublished) is a case where both a civil harassment fee award and SLAPP denial were in play, with the California Supreme Court on two occasions remanding to the appellate court on the SLAPP issue. 

            In this one, the defense was found to have prevailed under the civil harassment petition fee shifting statute, finally obtained affirmance of a $40,000 award after the lower court reduced it from the $84,150 “ask.”  The lower court’s ruling was no abuse of discretion, and plaintiff’s math to the contrary did not add up.

            The SLAPP issue was a little more complicated.  After transfer from the state supreme court the last time, the appellate court agreed that protected activity was involved such that the lower court had to decide if the merits prong was satisfied on remand.  The defense asked the appellate court to do that task, but it refused to do so.  So, there is a remand to see if fees might be awarded if the defense satisfies the second SLAPP prong for a grant of relief. 

Special Fee Shifting Statutes: Indian Tribes Litigant Properly Denied Fee Recovery Because Their Federal Claim Had No Fee Predicate Basis For Recovery Of Fees

Tribes Only Prevailed On A Federal Claim, But Fees Not Allowed On That Claim; Lurking State Law Issues Did Not Alter The Result.

            In Chicken Ranch Rancheria of Me-Wuk Indians v. State of California, Case No. 21-15751 (9^th Cir. Apr. 25, 2023) (published), Tribes successfully sued California for failure to comply with the federal Indian Gaming Regulatory Act (IGRA), a result salted away in a prior appeal.  Tribes then sought attorney’s fees for litigating a prior appeal which established its success against California.  The Ninth Circuit panel denied the fee request.  Because Tribes prevailed solely on a federal cause of the action, entitlement to fees depended on whether federal law allowed them.  IGRA had no fee-shifting provision.  As such, the lack of entitlement under federal law was dispositive, notwithstanding that state law issues “lurked” in the background. 

Special Fee Shifting Statutes: Financial Elder Abuse Fee Shifting Provision Precludes An Award Of Attorney’s Fees To A Prevailing Defendant Under A Financial Elder Abuse Claim

Only A Prevailing Plaintiff Is Entitled To Fee Recovery Under Welfare & Institutions Code § 15657.5(a).

            In Sall v. Agam, Case No. B317976 (2d Dist., Div. 4 Apr. 21, 2023) (unpublished), the appellate court considered whether a prevailing defendant could obtain attorney’s fees under Welfare & Institutions Code section 15657.5(a), which expressly only allows fee recovery to a prevailing plaintiff on a cause of action for financial elder abuse under the Elder Abuse Act.  After considering both the legislative policy behind the statutory provision and case law in the area, the appellate court affirmed the trial court’s conclusion that a prevailing defendant cannot obtain fee recovery, where the only cause of action was a financial elder abuse claim and notwithstanding the existence of a contract which authorized fee shifting. 

Special Fee Shifting Statute: $8,993.75 Fee Award In Dismissed Civil Harassment Restraining Order Proceeding Was Affirmed On Appeal As No Abuse Of Discretion

$13,051.75 Request Was Pared Down By The Lower Court.

            In Schumann v. Maxon, Case No. G061230 (4^th Dist., Div. 3 Mar. 21, 2023) (unpublished), plaintiff filed a civil harassment restraining order against her upstairs neighbor and neighbor’s attorney even though she voluntarily dismissed the matter.  Primary defendant, prevailing party, moved to recover discretionary fees under CCP § 527.6(s).  She sought $13,051.75 in total, but the lower court issued a fee order for $8,993.75, reduced for (1) multiple attorney internal conferences; (2) redacted billing entries; (3) vague entries; and (4) an excessive “fees on fees” request for bringing the attorney’s fees motion.

            Our local 4/3 DCA affirmed, in an opinion authored by Presiding Justice O’Leary.  The primary argument was that a fee award was not justified because plaintiff’s conduct was “in good faith,” but the Court of Appeal determined that the conduct of the parties did not matter as far as awarding fees under section 527.6.  (Krug v. Maschmeter, 172 Cal.App.4^th 796, 803 (2009).)  Also, the appellate court found that plaintiff never filed a fees motion with respect to her belief that she achieved her litigation objectives and that there was an admission in her appellate briefing which further supported the result on appeal.  When it came to the amount of the award, no detailed calculations needed to be made, which is the law in California for now unless there is a swing to federal courts requiring more specification. 

Civil Rights, Special Fee Shifting Statutes: $40,295 Civil Harassment Fee Award To Prevailing Party Affirmed, Although Amended Fee Order To Add Another Party Was Void Based On The Prior Fee Award Appeal

Trial Judge Rejected Fee Request For Half Based On The Party-Client Agreement.

            In Aaronoff v. Olson, Case No. B295388 (2d Dist., Div. 2 Jan. 24, 2023) (unpublished), prevailing party in a civil harassment proceeding (where the trial judge has discretion to award prevailing party fees per CCP § 527.6(a)) awarded $40,295 to the prevailing party, even though that party only requested half subject to an agreement with the client.  The trial judge awarded the full $40,295 after finding that the half cut was too arbitrary.  The appellate court agreed that the trial judge was not constrained by the parties’ internal agreement as far as awarding fee-shifting fees under section 527.6.  With respect to an amended fee order adding a different party, that award was void because it was stayed due to the pre-order appeal before the amended order was issued.

Special Fee Shifting Provisions: Denial Of Fees To Corporate Shareholder Under Corporations Code Section 1604 Was Proper

Court Of Appeal Applied Civil Discovery Act Definition Of “Substantial Justification” In Construing Section 1604.

            In Farnum v. Iris Biotechnologies, Inc., Case No. H047850 (6^th Dist. Dec. 19, 2022) (published), the appellate court confronted the issue of how to construe “without justification” in Corporations Code section 1604, which has a discretionary fee-shifting provision in favor of a shareholder of a California corporation where a corporation has withheld from shareholder inspection documents “without justification.”  There were no published cases interpreting this section, so the Sixth District borrowed the “substantial justification” test under the Civil Discovery Act—whether the corporation’s denial was “well grounded in both law and fact.”  Through earlier proceedings, it was established that the corporation’s denial was proper on 23 out of 31 document categories and the remaining 8 categories were narrowed to one year.  It was no abuse of discretion for the lower court to deny fees to the shareholder under these circumstances. 

Special Fee Shifting Statutes: $125,000 Fees/Costs Award Under Public Records Act To Petitioner Was Reversed On Appeal, While The Lower Court’s Denial Of Fees To Responding Party Was Correct

Reason for Reversal As To Petitioner Was That The Responding Party Did Not Improperly Withhold Production Of Documents Responsive To The Original Records Request.

            The scope of request made under the California Public Records Act (Gov. Code, §§ 6250-6276.40—the PRA) took on special significance in Muchnick v. Regents of the University of California, Case No. A162259 (1^st Dist., Div. 5 Nov. 1, 2022) (unpublished).

            In this matter, petitioner sent a PRA request to Regents asking for a specific category of documents, with the parties then engaging in meet and confer sessions over certain nonexempt-claimed documents.  Petitioner sought new documents in the meet and confer sessions, with Regents confirming it had not withheld any documents under the original PRA request and with the lower court not ordering further production of documents under than those previously produced.  However, the lower court did award petitioner $125,000 in fees and costs as the prevailing party under PRA, but it denied Regent’s request for fees under the same statutory scheme.

            The appellate court reversed the fees/costs award in Petitioner’s favor and affirmed the denial of the University’s request for fees.

            With respect to petitioner’s argument that the Regents’ appeal was untimely, that required consideration of whether two subsequent judgments were substantial modifications so that the time to appeal ran from the initial judgment.  The appellate court determined those subsequent judgments were not substantial modifications, but Regents’ appeal was timely from the initial judgment under the longer 180-day period because no one served a notice of entry as to the initial judgment.

            On the merits, the appellate court determined after a review of the record that Regents was not obligated to produce any further documents because they were not responsive to the Petitioner’s PRA request.  The scope of that original request guided Regents’ production obligations, such that its production of records during the PRA post-litigation process, which were not responsive to the prelitigation request, could not support a finding that petitioner was the prevailing party.  As to the University’s fee request, nothing showed that petitioner’s PRA litigation was frivolous so there was no need to consider it on remand.

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.   

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.