CALIFORNIA ATTORNEY'S FEES

HAPPY THANKSGIVING TO ALL OUR READERS!

“A Thanksgiving Toast.” Published by Keppler & Schwarzmann on November 30, 1898.  Artist: Udo J. Keppler. Library of Congress.  

 

Miscellaneous Recommended Reading: Attorney Fees -- A Potential Malpractice Minefield

Co-Contributor Marc Authored An Article About Attorney Fees And The Risk Of Malpractice Exposure In The October 2022 Issue Of Orange County Lawyer.

        "Attorney Fees: A Potential Malpractice Minefield," authored by Marc Alexander and appearing in the October 2022 issue of Orange County Lawyer, discusses the "unhappy case" of Shahrokh Mireskandari v. Edwards Wildman Palmer, 77 Cal.App.5th 247 (2022), and its implications for legal malpractice when the risks of attorney fee shifting are (allegedly) not carefully analyzed and disclosed to the client.

        Proving legal malpractice typically follows "the familiar case-within-a case method for establishing causation in litigation malpractice cases." The plaintiff-client needs to establish not only the negligence of the attorney, but also that the client would have won the underlying case but for attorney negligence. Mireskandari, however, is not a typical case, for Mireskandari's malpractice claim did not depend on prevailing in the underlying action. Instead, his malpractice claim depended on being able to prove that the "outcome" would have been better had he received different legal advice, never filed a lawsuit, and never been exposed to the risk of anti-SLAPP attorney fees. 

        The "case-within-a case" method of establishing a malpractice claim is simply an example of a more general principal, namely, that but for attorney negligence, the outcome of a case would have been better for the client. This is not exactly a bright line.

        Perhaps the most important lesson is that a careful attorney will analyze attorney fee issues early in the litigation process, and inform the client of those risks. While this may be easy in a simple case where a contract contains a "prevailing party attorney fees clause," there are numerous situations in which the risk of fee shifting is less obvious. The article describes some attorney fee situations that create a potential malpractice minefield.

Reviews: Co-Contributor Marc Has Article In Daily Journal About Waiver Of The Right To Arbitrate

The Article Is Entitled, "The United States and the California Supreme Courts are not on the same page."

        Several years ago, colleagues Mike and Marc of this blog litigated the issue of waiver of the right to arbitrate in the 9th Circuit. Their client prevailed in the case, but lost the skirmish arguing about whether their client had waived the right to arbitrate. Now, Marc has an article in the June 10, 2022 online edition of the Daily Journal, contrasting the United States and California Supreme Courts' divergent views about waiver of the right to arbitrate. Accessing the Daily Journal online requires a subscription.

HAPPY THANKSGIVING TO ALL OUR READERS!

"A Thanksgiving Truce." November 22, 1905.  Artist: John S. Pughe. Library of Congress.

Reviews: Co-Contributor Marc Publishes Article On Nuts And Bolts Of Videoconference Dispute Resolution

The Article About Videoconference Dispute Resolution Appears In Current Issue Of California Litigation, Vol. 33, No. 2 (2020).

        These days, Marc serves as a mediator on the panels of the USDC Central District and the Orange County Superior Court. Marc's article, "Nuts and Bolts of Videoconference Dispute Resolution in the Time of COVID-19", addresses the mechanics, best practices, and  pros and cons of videoconferencing in an ADR practice. With the permission of the California Lawyers Association and its journal California Litigation, the article is republished here and can be read by clicking on the title of the hyperlinked article. Marc is solely responsible for the contents and opinions in the article.

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Happy Independence Day To All Our Readers !

Mimes dressed as Lady Liberty in Downtown Manhattan. 2018. Photographer: Carol M. Highsmith. Library of Congress.

Miscellaneous, Default Judgments: 4/3 DCA Vacates Default Judgment And Remands To Determine If CCP § 425.11 Notice Of Damages Was Filed

If Not, Default Judgment Is Void; If So, Then Inefficiency/Lodestar Factors Must Be Considered On Remand.

            Although unpublished, Alshamlan v. Arabian Restaurants, Inc., Case No. G057543 (4^th Dist., Div. 3 May 12, 2020) (unpublished) is must reading for disabled rights plaintiffs’ attorneys seeking a default judgment against a target defendant.

            There, a balance-challenged plaintiff, after being refused lunch service at a restaurant which would not allow him to have his service dog Geo with him, filed a single-incident complaint under the Unruh Civil Rights Act, Disabled Persons Act, American with Disabilities Act, and Business and Professions Code section 17200.  The complaint did not specify any amount of damages, with plaintiff making a prayer for an injunction and “general, compensatory, and statutory damages” under the California disability statutes, trebled according to statute.  Plaintiff also prayed for an award of statutory attorney’s fees.  Plaintiff then filed for entry of a default judgment, requesting issuance of a permanent injunction and $40,311.33 in monetary damages--$25,000 in damages, $14,680 in fees, and $631.33 in costs.  The injunction request was based on the ADA and the damages/fees/costs based on the California disability statutes and ADA (fees and costs under the ADA, because only an injunction could be issued under that statute).  At the prove-up hearing, the trial court refused to award the requested $25,000 damages because no specific amount was alleged in the complaint.  However, it did award $5,000 in statutory minimum damages.  The trial judge further declined to issue the proposed injunction on the basis it was overbroad.  It rejected plaintiff’s request for over $14,000 in fees, finding $1,800 to be the reasonable fee award—expressing worry that the requested amount was way over the local rule default judgment guidelines.

            The 4/3 DCA, in a 3-0 decision authored by Justice Goethals, reversed and remanded.  The principal basis for the reversal/remand was the fact that plaintiff may not have served a notice/statement of damages under CCP § 425.11 to impart actual notice of the amounts of special and general damages being sought.  If one had not been filed, the default judgment was directed to be vacated on the basis it was void.  If the statement had been filed, the appellate court provided some additional guidance to the trial judge on the fees issue, given plaintiff had appealed on the ground that the fee award was too low.  The lower court should consider plaintiff’s limited success and other lodestar/reduction factors in fashioning a fee award if the statement of damages had been filed.

            BLOG COMMENT—Justice Goethals also discussed how the damages calculations under the state disability statute are confusing in the default judgment context, providing a good roadmap on how they are to be calculated.  A good primer for plaintiff disability attorneys seeking default judgments. 

Co-Contributor Marc's Interview of Dean Erwin Chemerinsky About Government Powers And Covid-19 Is Now On YouTube

Because We Have Covid-19 On Our Minds . . . 

        Co-contributor Marc's interview with Dean Erwin Chemerinsky of the University of California Berkeley School of Law about the constitutional and statutory powers of the government to address covid-19 streamed on YouTube on April 30, 2020. It is now available as a recording after the event.  https://bit.ly/Lit0430  Marc thanks Dean Chemerinsky, and the Litigation Section of the California Lawyers Association for making this possible.

Miscellaneous: The Judge Group, With An Irvine, California Office, Has Three Attorney’s Fees Insurance Products For Consideration By Litigants And Their Counsel

The Three Products Are Fee Shifting Insurance, Attorney’s Fees Insurance, And Contingency Fee Insurance.

            Co-contributors Mike and Marc met with James Blick, director of The Judge Group, which operates under the name TJ Insurance Services in California (with its office in Irvine) and makes available three attorney’s fees insurance products for consideration by litigants and their counsel.  All three products are offered after there is underwriting due diligence by the insurer, with premiums based on the nature of the case, the time at which insurance is sought in the case, and other underwriting factors.

            The first product is fee shifting insurance, which operates as a “hedge” against an adverse award of attorney’s fees.  Most frequently, this product is underwritten in breach of contract cases with contractual fees clauses or cases subject to Civil Code section 1717 reciprocity principles. 

            The second product is attorney’s fees insurance, with the insured party being a plaintiff desiring to insure against the risk that plaintiff will not recoup all of its legal spend in a case as a result of a negative outcome or a less-than-expected fee recovery.

            The third product is contingency fee insurance, with a law firm working on a contingency arrangement being the insured.  This product will insure an income loss for the contingency attorney if the case is unsuccessful or results in a low fee recovery.

            All of these products can include “contingent premium” features, where the insurer obtains a larger premium in the event of a positive litigation outcome or fee award.  However, the premiums are set, according to Mr. Blick, based on the unique underwriting process applied to a particular outcome.

            Although this blog has no affiliation with The Judge Group, we thought these products should be called to the attention of interested litigants and their counsel.  Mr. Blick can be reached at 877.766.8958 or at [email protected]. 

Miscellaneous: An Addition To Our Mission Statement Is Proposed

From Tail To Dog.

    Attorney Damian R. Castaneda has sent us a modest proposal: 

I wanted to make a contribution to your mission statement about "All too often attorney fees become the tail that wags the dog in litigation."  Deane Gardenhome Assn. v. Dentkas, 13 Cal.App.4th 1394, 1399 (1993). How about including Dorsey’s more extreme statement: “The attorneys' fees in this case have not simply become a case of the tail wagging the dog; the attorneys ' fees have become the dog.” Dorsey v. Superior Court, 241 Cal.App.4th 583, 589 (2015).

    HAT TIP TO DAMIAN CASTANEDA !

Miscellaneous: NALFA Is Hosting An Attorney Fee CLE Program

National Association of Legal Fee Analysis Is Hosting A Program On May 30, 2019.

        NALFA hosts CLE programs on attorney fee and legal billing issues.  NALFA is hosting an upcoming CLE webinar, “View From the Bench: Awarding Attorney Fees in Federal Litigation” on May 30, 2019 from Noon-2pm (Central).  This CLE program features an all judicial panel of sitting federal judges.  Panelists include the Honorable Eduardo C. Robreno, Senior Judge, U.S. District Court for the Eastern District of Pennsylvania, the Honorable James G. Carr, Senior Judge, U.S. District Court for the Northern District of Ohio, and the Honorable Nanette K. Laughrey, Senior Judge, U.S. District Court for the Western District of Missouri.  This CLE program is approved for 2.00 credit hours in CA, FL, GA, IL, OH, PA & TX.  For more details or to register, visit http://www.thenalfa.org/CLE-Programs/.

Book Review: Richard L. Hasen's "The Justice of Contradictions: Antonin Scalia and the Politics of Disruption"

Co-Contributor Marc's Review Of Richard L. Hasen's The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, Has Been Published in California Litigation.

    With the permission of California Litigation, the journal of the litigation section of the California Lawyers Association, co-contributor Marc's review of Prof. Richard L. Hasen's book, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, is made available by clicking here.

Miscellaneous Reviews: Books By Sunstein, Tribe And Matz About Impeachment

Two Books Reviewed By Co-Contributor Marc In Latest Issue Of California Litigation.

        In the latest issue of California Litigation, Vol. 31, No. 2 (2018), p. 44, co-contributor Marc has reviewed Cass R. Sunstein's Impeachment: A Citizen's Guide, and Laurence Tribe and Joshua Matz's To End A Presidency: The Power Of Impeachment. You can read the review, which is republished with the permission of California Litigation, by clicking here.