CALIFORNIA ATTORNEY'S FEES

Year in Review – 2022

Year End-Wrap Up By Mike, Marc, And Shanna For Our Top 20 Decisions In 2022—Part 2 of 2

First Floor Corridor, James R. Browning U.S. Court of Appeals Building, San Francisco, California.  Carol M. Highsmith, photographer.  2009.  Library of Congress.

            As we have done over the years, this blog provides its top 20 attorney’s fees/costs decisions for 2022, again emphasizing that there were many other decisions of consequence over the year.  However, these were our favorites and with the order of the opinions not indicating their importance.  Co-contributors Mike and Marc would like to again thank Shanna Strader for her contributions over the last year, because she did great posts and was invaluable in keeping the calattorneysfees.com blog up to date.  With that said, here is Part 2 of 2 of our Top 20 Decisions for 2022.

10.    SECTION 998. K.M. v. Grossmont Union High School Dist., 84 Cal.App.5^th 717 (Cal. App. 4^th Dist., Div. 1 Oct. 25, 2022), pet’n for review filed, Dec. 1, 2022—authored by Acting Presiding Justice Huffman, discussed in our October 29, 2022 post:  To be valid, a Code of Civil Procedure section 998 offer conditioned on a settlement agreement and Civil Code section 1542 waivers likely needs to have the settlement agreement attached so the offeree can evaluate the settlement agreement language.

9.    SECTION 998.  Council for Education and Research on Toxics v. Starbucks Corporation, 2022 WL 15136462 (Cal. App. 2d Dist., Div. 4 Oct. 26, 2022), pet’n for review filed, Dec. 2, 2022—authored by Presiding Justice Manella, discussed in our October 31, 2022 post:  $700,000 fee award to prevailing defendants reversed in a Proposition 65 case because the 998 offers desired releases which were overbroad in nature.

8.    SECTION 998. Trujillo v. City of Los Angeles, 84 Cal.App.5^th 908 (Cal. App. 2d Dist., Div. 2 Oct. 27, 2022)—authored by Justice Hoffstadt, discussed in our October 29, 2022 post:  Acceptance of a CCP § 998 offer after the oral grant of a defense summary judgment motion was ineffective.

7.    ARBITRATION. Taska v. TheRealReal, Inc., 2022 Cal.App. LEXIS 916 (Cal. App. 1^st Dist., Div. 5 Nov. 4, 2022)—authored by Presiding Justice Jackson, discussed in our November 6, 2022 post:  A lower court correct correctly struck an arbitrator’s award of fees and costs under a revised arbitration award where the arbitrator had initially denied fees and costs in an initial award.

6.    CLASS ACTIONS. McKnight v. Hinojosa (Uber Technologies, Inc.), 2022 WL 17333822 (9^th Cir. Nov. 30, 2022)—authored by Circuit Judge Thomas, discussed in our November 30, 2022 post:  A class action settlement approval was affirmed because the settlement was not a “coupon” settlement because two of the three factors demonstrated it was not that type of settlement.

5.    FAMILY LAW. In re Marriage of Blake & Langer, Case No. B311966 (Cal. App. 2d Dist., Div. 4 Nov. 10, 2022 published)—authored by Los Angeles County Superior Court Judge Stone, sitting by assignment, discussed in our November 15, 2022 post:  Husband’s dismissal of joinder complaint did not divest the lower court of jurisdiction to impose Family Code section 271 sanctions against husband.

4.    DISCOVERY/SANCTIONS. City of Los Angeles v. PricewaterhouseCoopers, LLC, Case No. B310118 (Cal. App. 2d Dist., Div. 5 Oct. 20, 2022 published), depublication request and pet’n for review filed, 11/22/22 & 11/23/22—authored by Justice Moor, with a dissenting opinion by Justice Grimes, discussed in our October 27, 2022 post:  $2.5 million in discovery abuse monetary sanctions reversed where no specific section authorized such sanctions, with general discovery abuse statutes not being sufficient as a sanctions predicate; Justice Grimes, in dissent, concludes otherwise.

3.    CONSTRUCTION. Cell-Crete Corp. v. Federal Ins. Co., 2022 WL 4103354 (Cal. App. 4^th Dist., Div. 2 Sept. 8, 2022)—authored by Justice Slough, discussed in our September 9, 2022 post:  Defendant prevailing in a payment bond dispute can be entitled to fees and costs under Civil Code § 9564(c) even though a third-party paid them, because the statutory section has no “incurred” requirement.

2.    EQUITY/UNDERTAKING. Sarkany v. West, Case No. A162441 (Cal. App. 1^st Dist., Div. 2 Aug. 30, 2022 published)—authored by Justice Miller, discussed in our September 2, 2022 post:  A trial court, under CCP § 917.1(a), does have discretionary authority to stay enforcement of a monetary judgment on appeal if the principal litigant is indigent and cannot obtain sufficient sureties for purposes of an appellate undertaking.

1.    SLAPP. Frym v. 601 Main Street, LLC, 82 Cal.App.5^th 613 (1^st Dist., Div. 5 Aug. 24, 2022)—authored by Retired Justice Wiseman, sitting by assignment, discussed in our August 25, 2022 post:  Mandatory SLAPP fees to three prevailing defendants were improperly denied even though defendants filed a joint motion and even though some of the defendants had different counsel/differing interests. 

Year In Review - 2022

Year End-Wrap Up By Mike, Marc, And Shanna For Our Top 20 Decisions In 2022—Part 1 of 2.

Courtroom One, James R. Browning U.S. Court of Appeals Building, San Francisco, California.  Carol M. Highsmith, photographer.  2009.  Library of Congress.

            As we have done over the years, this blog provides its top 20 attorney’s fees/costs decisions for 2022, again emphasizing that there were many other decisions of consequence over the year.  However, these were our favorites and with the order of the opinions not indicating their importance.  Co-contributors Mike and Marc would like to thank Shanna Strader for her contributions over the last year, because she did great posts and was invaluable to keeping the calattorneysfees.com blog up to date.  With that said, here is Part 1 of 2 of our Top 20 Decisions for 2022.

20.    PREVAILING PARTY/SECTION 1717/TRADE SECRETS. Blue Mountain Enterprises, LLC v. Owen, 74 Cal.App.5^th 537 (Cal. App. 1^st Dist., Div. 1 Jan. 28, 2022 published)—authored by Justice Sanchez, discussed in our Jan. 29, 2022 post--$596,114 under a contractual fee recovery order sustained in invalid non-solicitation case where contractual fees clause involved, because plaintiff obtained injunctive relief so as to be the prevailing party given this was a prime objective of the litigation from plaintiff’s side.

19.    CIVIL RIGHTS. Vines v. O’Reilly Auto Enterprises, 75 Cal.App.5^th 174 (Cal. App. 2d Dist., Div. 7 Jan. 21, 2022)—authored by Presiding Justice Perluss, discussed in our Jan. 21, 2022 post—FEHA fee recovery to plaintiff was reversed because the limited success analysis of the lower court was too jaded on the value of unsuccessful work to the detriment of the claiming plaintiff.

18.    COSTS. Segal v. ASICS American Corp., 12 Cal.5^th 651 (Cal. Supreme Court Jan. 13, 2022)—authored by Chief Justice Cantil-Sakauye, discussed in our Jan. 13, 2022 post—Unused exhibit copies and unused demonstrative aids during a trial can be awarded in the discretion of the trial judge if found to be reasonably necessary to the litigation. 

17.    SLAPP. Catlin Ins. Co., Inc. v. Danko Meredith Law Firm, Inc., 73 Cal.App.5^th 764 (Cal. App. 1^st Dist., Div. 4 Jan. 11, 2022)—authored by Presiding Justice Streeter, discussed in our Jan. 12, 2022 post—After a voluntary dismissal of an action by plaintiff, the SLAPP defendant must file a costs memorandum or fee motion to preserve defendant’s entitlement to fee recoverability.

16.    LAW OF THE CASE/SANCTIONS. Broadcast Music, Inc. v. Structured Asset Sales, LLC, 75 Cal.App.5^th 596 (Cal. App. 2d Dist., Div. 2 Feb. 24, 2022)—authored by Justice Ashmann-Gerst, discussed in our Mar. 12, 2022 post—Law of the case doctrine precluded an appellate fee request, renewed before the trial judge, where the appellate court had opined adversely in an earlier opinion; CCP § 128.5 requires that an opposing party must have the full benefit of the 21-day “safe harbor” period rather than a fractional party of the 21^st day, articulating a “bright line” approach.  The 21-day rule in BMI was later followed by Transcon Financial, Inc. v. Reid & Hellyer, APC, 81 Cal.App.5^th 549, 550-551 (Cal. App. 4^th Dist., Div. 2 July 22, 2022)—authored by Justice Menetrez and discussed in our July 24, 2022 post—as well as adopted by lower courts in subsequent law and motion proceedings.

15.    SECTION 1717. Chen v. Valstock Ventures, LLC, 81 Cal.App.5^th 197 (Cal. App. 1^st Dist., Div. 4 July 29, 2022)—authored by Justice Brown, discussed in our July 29, 2022 post—No interim award of fees are allowable under Civil Code section 1717 where not all of the claims have been resolved, such as where only a summary adjudication grant is made of certain contract claims.

14.    PRIVATE ATTORNEY GENERAL. Broad Beach Geologic Hazard Abatement Dist. v. 31506 Victoria Point LLC, 81 Cal.App.5^th 1068 (Cal. App. 2d Dist., Div. 4 Aug. 2, 2022)—authored by Presiding Justice Manella, discussed in our Aug. 4, 2022 post—Under the Whitley cost/benefit analysis, the trial court properly denied prevailing Malibu homeowners over $2.4 million in requested fees under CCP § 1021.5 because the 10-year discounted benefits to homeowners exceeded their litigation costs.

13.    EMPLOYMENT. Naranjo v. Spectrum Security Services, Inc., 13 Cal.5^th 93, 102 (Cal. Supreme Court May 23, 2022)—authored by Justice Kruger, discussed in our Aug. 26, 2022 post of the Betancourt decision on remand—Extra pay for missed meal and rest breaks constitutes “wages” that must be reported on statutorily required employment wage statements, such that this triggers fee recovery under Labor Code § 218.5(a).  (Accord, Betancourt v. OS Restaurant Services, LLC, 83 Cal.App.5^th 132 (Cal. App. 2d Dist., Div. 8 Sept. 12, 2022 published)—authored by Justice Grimes, discussed in our Aug. 26, 2022 post when the opinion was unpublished—following Naranjo on remand from the California Supreme Court, reversing a fee denial.)

12.    FAMILY LAW. Marriage of Knox, 83 Cal.App.5^th 15 (Cal. App. 5^th Dist. Sept. 9, 2022)—authored by Justice Franson, discussed in our Sept. 9, 2022 post—Where a family law judge failed to promptly rule on a pendente lite Family Code § 2030 request which prejudiced a self-represented litigant, a judgment on key impacted issues had to be reversed and remanded for a determination of whether section 2030 fees should be ordered.

11.    CIVIL RIGHTS/REASONABLENESS OF FEES. Shayler v. 1310 PCH, LLC, 51 F.4^th 1015 (9^th Cir. Oct. 24, 2022)—authored by Circuit Judge Milan D. Smith, Jr., discussed in our Oct. 28, 2022 post—Ninth Circuit affirmed a fee award to a prevailing ADA plaintiff where the district court reduced the $31,714 fee request down to $7,896 based on an inflated hourly rate request and inefficiencies (especially staffing inefficiencies), meaningfully articulating the reason for the reductions.

 

 

           

Year In Review – 2021

Year End-Wrap Up By Mike, Marc, And Shanna For Our Top 20 Decisions In 2021

Ronald Reagan Federal Courthouse, Santa Ana, California. Carol M. Highsmith, photographer.  Between 1980 and 2006. Library of Congress.

Part 2 of 2 – Third-Party Beneficiary Fee Clause Interpretation, Class Actions/Cy Pres Awards, Post-Judgment Fee Amounts, And Civil Rights/Employment Costs Dominated Our Second List Of Decisions.

            Here is the second part of our Top 2021 list.  With that, we look forward to posting on cases in 2022, although we will do periodic reports for any ending 2021 decisions.

10.     INTERPRETATION OF FEE CLAUSES. Hom v. Petrou, 67 Cal.App.5^th 459 (Cal. App. 1^st Dist., Div. 4 Aug. 3, 2021)—authored by Justice Brown, discussed in our Aug. 6, 2021 post—Where non-signatory lenders obtained a dismissal of a cross-complaint involving tort claims, they were entitled to attorney’s fees under a broad fee clause in a lease where they were third-party beneficiaries under the clause (based on the specific wording of the fees provision). 

9.     CIVIL RIGHTS/COSTS. Pollock v. Tri-Modal Distrib. Services, Inc., 11 Cal.5^th 918 (Cal. Supreme Court July 26, 2021)—authored by Justice Liu, discussed in our Aug. 2, 2021 post:  Routine appellate costs cannot be awarded to a prevailing FEHA defendant, even on appeal, where the plaintiff brought a potentially meritorious suit that ultimately did not succeed. 

8.     CLASS ACTIONS. McKinney-Drobins v. Massage Envy Franchising, LLC, 16 F.4^th 594 (9^th Cir. Oct. 20, 2021)—authored by Circuit Judge Gould, with a concurrence by Circuit Judge Miller, discussed in our Oct. 21, 2021 post:  Determination of whether vouchers are “coupons” under CAFA is reviewed under a de novo standard, reversing a district judge’s analysis under this review standard.  Class counsel fee award, reached at a pre-certification settlement stage, was reversed and remanded based on the presence of non-cash relief, a “clear sailing” provision, and a “reverter” to the defendant, as well as a need to examine actual redemption rates given that this was a coupon settlement case.

7.     COSTS/EMPLOYMENT. Patterson v. Superior Court, 2021 Cal.App. LEXIS 863 (Cal. App. 2d Dist., Div. 7 Oct. 18, 2021)—authored by Presiding Justice Perluss, discussed in our Oct. 20, 2021 post:  Employer successfully moving to compel arbitration in FEHA case not entitled to recover attorney’s fees unless employee’s opposition to the motion was groundless.

6.     SECTION 998/WORKERS’ COMPENSATION. Oakes v. Progressive Transp. Services, DJDAR 11710 (Cal. App. 2d Dist., Div. 2 Nov. 10, 2021)—authored by Justice Chavez, discussed in our Nov. 11, 2021 post:  Reconciling CCP § 998 and Labor Code § 3856, plaintiff’s attorney’s contingency fee amount is not to be reduced from gross judgment to determine if the section 998 offeror was entitled to prevailing party post-offer costs; CCP § 998 took precedence over Labor Code § 3856.

5.     REQUESTS FOR ADMISSION. Spahn v. Richards, Case No. A159495 (Cal. App. 1^st Dist., Div. 3 Nov. 30, 2021)—authored by Justice Rodriguez, discussed in our Dec. 5, 2021 post:   CCP § 2033.420 “costs-of-proof” sanctions are not per se barred by previous denials of a summary judgment motion and a directed verdict motion, with the circumstances of a particular case determining if a denying plaintiff’s conduct fell within section 2033.420’s exceptions.

4.     JUDGMENT ENFORCEMENT/REASONABLENESS OF FEES. Wertheim, LLC v. Currency Corp., 2021 Cal.App. LEXIS 854 (Cal. App. 2d Dist., Div. 1 Oct. 14, 2021, mod. Nov. 21, 2021, pet’n for review pending, Case No. S271933)—authored by Justice Chaney, reviewed in our Oct. 17, 2021 post:  Judgment creditor was denied a substantial portion of post-judgment collection attorney’s fees based on proportionality and equitable principles by comparing fees sought to amount of judgment at issue. 

3.     ATTORNEY GENERAL/PREVAILING PARTY. Doe v. Westmont, 60 Cal.App.5^th 753 (Cal. App. 2d Dist., Div. 6 Jan. 25, 2021, mod./published Feb. 8, 2021)—authored by Justice Tangeman, discussed in our Feb. 9, 2021 post:  Subsequent appellate decision can justify later CCP § 1021.5 fee award although pre-appeal fees were initially denied because success element was later satisfied.

2.     DAMAGES. Mai v. HKT CAL, Inc., 66 Cal.App.5^th 504 (Cal. App. 4^th Dist., Div. 1 July 12, 2021), rev. den.—authored by Justice Dato, discussed in our July 19, 2021 post:  Disagreeing with, or claiming some of its reasoning was dicta in, Copenbarger v. Cerullo World Evangelism, Inc., 29 Cal.App.5^th 1 (2018).  4/1 DCA holds a prima facie case that costs were incurred and that they were reasonable can be established by plaintiff client’s testimony that the bills were paid when fees are claimed as damages during a trial.  [BLOG OBSERVATION:  This split in thinking may need to be resolved by the California Supreme Court at some point.]

1.     CLASS ACTIONS/CY PRES AWARDS. In re Google Inc. Street View Electronic Communications Litig., Case No. 20-15616 (9^thCir. Dec. 27, 2021) (published)—majority and concurring opinions authored by Circuit Judge Bade, discussed in our Dec. 28, 2021 post:  Cy pres awards could be considered for purposes of valuing a class action for purposes of setting an attorney’s fees benchmark even though direct monetary payments went to class members in a case where member identification was difficult, with the concurrence indicating that the Ninth Circuit should reexamine cy pres awards with respect to indirect benefit and inherent conflicts of interest.

Year In Review - 2021

Year End-Wrap Up By Mike, Marc, And Shanna For Our Top 20 Decisions In 2021

Courtroom One Marble, James R. Browning U.S. Court of Appeals Building, San Francisco, California. Carol M. Highsmith, photographer. 2009. Library of Congress.

Part 1 of 2 – Section 998, Class Action, Prevailing Party/Fee Reasonableness, And Civil Rights/Employment Costs Dominated Our First List Of Decisions.

            It is the Holiday season, and we continue our tradition to present our personal favorite decisions from our blog postings during 2021, keeping in mind they are simply a distillation of what we selectively picked as important.  2021, although a challenging year due to the continuation of the COVID-19 pandemic, produced a good amount of California state court and Ninth Circuit decisions on fee issues, like 2020, such that we wrap up with our Top 20 Decisions list.  We wish our readers Happy Holidays, hoping you all stay safe.

20.     SECTION 998/SETTLEMENT. Varney Entertainment Group, Inc. v. Avon Plastics, Inc., 61 Cal.App.5^th 222 (Cal. App. 4^th Dist., Div. 3 Feb. 23, 2021)—authored by Justice Goethals, discussed in our Feb. 27, 2021 post:  A second narrower non-998 settlement offer, which was accepted by plaintiff, extinguished a broader initial section 998 offer made by plaintiff such that defendant could not recover prevailing party fees and costs under the extinguished prior 998 offer.

19.     ETHICS/INTEREST/RETAINER AGREEMENTS. Pech v. Morgan, 61 Cal.App.5^th 841 (Cal. App. 2d Dist., Div. 3 March 11, 2021)—authored by Justice Egerton, discussed in our March 13, 2021 post:  For valid non-contingency retainer agreements, unconscionability guides fee entitlement, and reasonability guides attorney performance issues.  Attorneys cannot obtain interest on delinquent fees unless their retainer agreements have provisions stating interest will be charged.

18.     REASONABLENESS OF FEES. Karton v. Ari Design & Construction, Inc., 61 Cal.App.5^th 734 (Cal. App. 2d Dist., Div. 8 March 9, 2021)—authored by Justice Wiley, discussed in our March 10, 2021 post:  Overlitigation of a case by an attorney and incivility during the course of a case can justify a trial court’s reduction of a prevailing party fee request.

17.     SECTION 998. Mostafavi Law Group, APC v. Larry Rabineau, APC, 61 Cal.App.5^th 614 (Cal. App. 2d Dist., Div. 4 March 3, 2021)—authored by Justice Currey, discussed in our March 5, 2021 post:  Section 998 offeror’s failure to provide acceptance line in an actually accepted 998 offer still invalidated the offer.

16.     CIVIL RIGHTS/COSTS. Rodney Green, Sr. v. Mercy Housing, Inc., 991 F.3d 1056 (9^th Cir. March 19, 2021)—authored by Circuit Judge Berzon, discussed in our March 19, 2021 post:  Losing plaintiff under a Fair Housing Act (FHA) case is not exposed to routine costs unless plaintiff’s claims were frivolous, unreasonable, or groundless under the Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) standard.

15.     CLASS ACTIONS. Briseno v. Henderson (ConAgra Foods, Inc.), 998 F.3d 1019 (9^th Cir. June 1, 2021)—authored by Circuit Judge Lee, discussed in our June 1, 2021 post:  Ninth Circuit will use the factors in In re Bluetooth Headset Products Liab. Litig., 654 F.3d 535 (9^th Cir. 2011) to judge the fairness of class action settlement fee recovery terms at the post-certification stage, reversing a $7 million fee/costs award to class counsel because (a) class counsel was going to receive about 90% of the total non-cash redemption distributions; (b) the defense banked on a low redemption rate such that the “clear sailing clause” indicated some collusion; and (c) the settlement contained a “reverter” where any reduced fees to class counsel went back to defendant.

14.     PREVAILING PARTY. Harris v. Rojas, 66 Cal.App.5^th 817 (Cal. App. 2d Dist., Div. 8 June 20, 2021)—authored by Justice Wiley, discussed in our July 22, 2021 post:  Tenant, requesting $200,000 from a jury and receiving only $6,450 on his contract claim (3% of the request), was not the prevailing party so as to recover $296,744.68 in fees from landlord.  A trial judge has discretion to decide that the “victory” was pyrrhic and nobody won.

13.     CLASS ACTION. Kim v. Allison, 8 F.4^th 1170 (9^th Cir. Aug. 17, 2021)—authored by District Judge Rakoff sitting by designation for the majority over a dissent by Circuit Judge Callahan, discussed in our Aug. 17, 2021 post—Bluetooth factors are used to judge the fairness of a pre-certification fee award to class counsel.  The majority reversed a $1.2 million fee award, where the injunction value and coupon claim rate predicates for the fee award were inflated and where there was a suspicious “clear sailing clause,” with the dissenting judge finding the fee award was justified under a lodestar analysis such that there was no abuse of discretion.

12.     FAMILY LAW. Marriage of Erndt v. Terhorst, 59 Cal.App.5^th 898 (Cal. App. 1^st Dist., Div. 3 Jan. 11, 2021)—authored by Justice Petrou, discussed in our Jan. 13, 2021 post:  Family Code section 271 sanctions must be tethered to actual attorney’s fees incurred, so they cannot be awarded for an in pro per litigant’s efforts.

11.     SLAPP. Trinity Risk Management, LLC v. Simplified Labor Staffing Solutions, Inc., 59 Cal.App.5^th 995 (Cal. App. 2d Dist., Div. 8 Jan. 11, 2021 issued as unpublished, Jan. 14 published)—authored by Justice Stratton, discussed in our Jan. 15, 2021 post:  There is no meet and confer requirement to discuss the merits of a SLAPP motion or an attorney’s fees request under the anti-SLAPP statute.

Year In Review - 2020

Year End Wrap-Up:  Mike, Marc, and Shanna’s Top 30 Decisions in 2020

Sculpture "The Decisions" at the Robert T. Matsui U.S. Courthouse, Sacramento, California.  Carol M. Highsmith, photographer.  October 2009.  Library of Congress.

Part 2 of 2—Specific Fee Shifting Statute, Employment, Code of Civil Procedure Section 998, Civil Code Section 1717, and Sanctions Issues Dominated.

            We now complete our Top 30 decisions for the 2020 year on fees and costs issues.  Here is looking forward, optimistically, to a better 2021 for all of our readers.  However, enjoy the rest of our Top 30 decisions.

            15.  EMPLOYMENT.  Betancourt v. OS Restaurant Services, LLC, 49 Cal.App.5^th 240 (Cal. App. 2d Dist., Div. 8 May 21, 2020 certified for publication)—authored by Justice Grimes, discussed in our May 1, 2020 post when the opinion was unpublished:  Rest/meal break and associated penalties do not give rise to attorney’s fees entitlement under the Labor Code because they are not pure wage/hour violations, resulting in reversal of a $280,794 fee award as a matter of law.

            14.  COSTS—REVIEW GRANTED BY CALIFORNIA SUPREME COURT.  Segal v. ASICS America, 50 Cal.App.5^th 659 (Cal. App. 2d Dist., Div. 4 June 15, 2020), rev. granted, No. S263569 (Cal. Supreme Court Sept. 30, 2020)—authored by Justice Currey at the DCA level, discussed in our June 16, 2020 post:  Appellate court decided that a “pragmatic approach” should be applied when deciding whether a prevailing party can recover for trial exhibits and closing slides that were never used at trial, siding with one side in a split of appellate thinking on the issue.  The California Supreme Court limited review to this issue: “May a party recover costs for multiple sets of trial exhibits and closing slides that were not used at trial?”

            13.  SPECIAL FEE SHIFTING STATUTE (ELDER ABUSE).  Arace v. Medico Investments, LLC, 48 Cal.App.5^th 977 (Cal. App. 4^th Dist., Div. 2 May 11, 2020 certified for publication)—authored by Justice McKinster, discussed in our Mar. 25, 2020 post when the decision was unpublished:  Jury’s determination that defendants were liable for financial elder abuse mandated fee recovery under Welfare & Institutions Code section 15657.5(a) even though no damages were awarded. 

            12.  SECTION 1717 (ALTER EGO).  MSY Trading, Inc. v. Saleen Automotive, Inc., 51 Cal.App.5^th 395 (Cal. App. 4^th Dist., Div. 3 June 26, 2020)—authored by Justice Ikola, discussed in our June 30, 2020 post:  Defendant prevailing in post-judgment enforcement action attempting to add defendant as an alter ego was entitled to a contractual attorney’s fees award under Civil Code section 1717 against plaintiffs.  See also 347 Group, Inc. v. Philip Hawkins Architect, Case No. C091273 (Cal. App. 3d Dist. Dec. 7, 2020)—authored by Justice Robie, discussed in our December 8, 2020 post:  Third District agreed with the alter ego fee analysis in MSY Trading.

            11.  SUBSTANTIATION OF REASONABLENESS OF FEES.  Taylor v. County of Los Angeles, 50 Cal.App.5^th 205 (Cal. App. 2d Dist., Div. 8 June 10, 2020)—authored by Justice Wiley, discussed in our June 11, 2020 post:  Reconstructed time records are entitled to diminished credibility weight as compared to contemporaneous records when it comes to examining fee substantiation.

            10.  SECTION 998.  Burchell v. Faculty Physicians & Surgeons of the Loma Linda University School of Medicine, 54 Cal.App.5^th 515 (Cal. App. 4^th Dist., Div. 2 Sept. 10, 2020)—authored by Justice Raphael, discussed in our Sept. 11, 2020 post:  In a joint and several liability case involving multiple defendants, plaintiff must provide separate acceptance lines for each defendant where a multiple Code of Civil Procedure section 998 offer is made in order to make the pretrial settlement offer valid.

            9.  DEADLINES.  Nutrition Distribution LLC v. IronMag Labs, LLC, 972 F.3d 1088 (9^th Cir. Aug. 25, 2020)—authored by Circuit Judge Bress, discussed in our Aug. 26, 2020 post:  Filing a post-judgment attorney’s fees motion, absent a district court’s extension of the appeal deadline or a decision to treat the fee motion as a Federal Rule of Civil Procedure, rule 59 motion, does not extend the 30-day deadline to file a merits judgment appeal.

            8.  SPECIAL FEE SHIFTING STATUTE (PARNERSHIP BUYOUT DISPUTE).  Jones v. Goodman, 2020 WL 6736235 (Cal. App. 4^th Dist., Div. 1 Nov. 17, 2020)—authored by Justice Guerrero, discussed in our Nov. 18, 2020 post:  Corporations Code section 16701’s partnership buyout fee shifting provision is discretionary and is invoked only when a plaintiff’s claims objectively lack merit or were subjectively pursued in bad faith (or both).

            7.  RETAINER AGREEMENTS/TRADE SECRETS.  Aerotek, Inc. v. Johnson Group Staffing Co., Inc., 54 Cal.App.5^th 670 (Cal. App. 3d Dist. Sept. 15, 2020)—authored by Acting Presiding Justice Blease, discussed in our Sept. 16, 2020 post:  An attorney’s fees award under California’s Trade Secret Act, Civil Code section 3426.4, belongs to the attorney, not the client, in the absence of an express fee agreement dictating otherwise. 

            6.  CLASS ACTIONS.  Chambers v. Whirlpool Corp., 2020 WL 6578223 (9^th Cir. Nov. 10, 2020)—authored by Circuit Judge Lee, discussed in our Nov. 11, 2020 post:  Percentage-of-value approach governs a coupon component of a Class Action Fairness Act (CFAA) settlement, and the lodestar approach governs the non-coupon settlement component, but the lodestar approach can be applied in a hybrid settlement if certain adjustments are made by the district judge.

            5.  EMPLOYMENT.  Cruz v. Fusion Buffet, Inc., 2020 WL 6559229 (Cal. App. 4^th Dist., Div. 1 Nov, 9, 2020 certified for publication), pet’n for review filed, No. S265682 (Cal. Supreme Court Dec. 10, 2020)—DCA opinion authored by Justice Aaron, discussed in our Oct. 17, 2020 post when the opinion was unpublished:  Labor Code’s cost shifting provisions trumped Code of Civil Procedure section 998’s cost shifting features with respect to successful section 998 defendants, disagreeing with the contrary result suggested by Plancich v. UPS, Inc., 198 Cal.App.4^th 308, 310-312 (2011). 

            4.  SECTION 998.  Auburn Woods I Homeowners Assn. v. State Farm Insurance, 56 Cal.App.5^th 717 (Cal. App. 3d Dist. Oct. 28, 2020)—authored by Acting Justice Mauro, discussed in our Sept. 29, 2020 post:  Attaching a proposed settlement agreement for acceptance in connection with a Code of Civil Procedure section 998 offer cured any uncertainty about there being extraneous terms of an unknown nature.

            3.  SLAPP; SANCTIONS.  Changsha Metro Group Co., Ltd. v. Xuefeng, 57 Cal.App.5^th 1, 2020 WL 6441346 (Cal. App. 4^th Dist., Div. 2 Nov. 3, 2020 after vacating prior opinion), pet’n for review filed, No. S266067 (Dec. 11, 2020)—authored by Justice Miller, discussed in our May 21, 2020 and Nov. 4, 2020 posts:  Plaintiff’s motion for attorney’s fees based on frivolous anti-SLAPP motion by the defense should be requested in the opposition to the merits anti-SLAPP motion in order to give the defense an opportunity to respond, given that the 21-day safe harbor provision under Code of Civil Procedure section 128.5 (as incorporated through section 128.7) cannot likely be satisfied from a timing perspective in most instances.

            2.  DISCOVERY; SANCTIONS.  Kwan Software Enginerring, Inc. v. Hennings, Case Nos. H042715/H043215 (Cal. App. 6^th Dist. Dec. 2, 2020)—authored by Justice Danner, discussed in our Dec. 3, 2020 post:  Imposition of prior terminating sanctions is not a basis to deny issuance of mandatory discovery sanctions of a monetary nature against offending litigants, although attorneys are not subject to monetary sanctions unless they advised their client litigants to engage in the discovery violations.  On the attorney sanctions issue, see also Cornerstone Realty Advisors, LLC v. Summit Healthcare REIT, Inc., 2020 Cal. App. LEXIS 1013 (4^th Dist., Div. 3 Oct. 28, 2020)—authored by Justice Fybel, discussed in our Oct. 28, 2020 post, which found monetary sanctions were inappropriate against attorneys who did not advise litigants to engage in the offending discovery abuses. 

            1.  SECTION 1717.  Waterwood Enterprises, LLC v. City of Long Beach, Case No. B296830 (2d Dist., Div. 1 Dec. 18, 2020)—authored by Justice Bendix, discussed in our Dec. 22, 2020 post: (a) section 1717 trumps more lenient fee clause language as to who is a prevailing party (“getting greater relief” language in fees clause did not trump clear winner standard under section 1717); (b) settlement discussions, informal or under CCP § 998, are irrelevant for fee entitlement under section 1717 independently; and (c) defendants wishing to be section 1717 prevailing parties under tender subdivision must strictly must satisfy tender and deposit rules, not partially admitting some allegations but hedging through a denial of liability.

Year In Review - 2020

Year End Wrap-Up: Mike, Marc, and Shanna’s Top 30 Decisions in 2020

Sculpture "The Decisions" at the Robert T. Matsui U.S. Courthouse, Sacramento, California. Carol M. Highsmith, photographer. October 2009.  Library of Congress.

Part 1 of 2—Lemon Law, Class Action Settlement, Ethics, Civil Rights, and Specific Fee-Shifting Statutes Took the Stage.

            It is the Holiday season, and we continue our tradition to present our personal favorite decisions from our blog postings during 2020, keeping in mind they are simply a distillation of what we selectively picked as important.  (This year, we include our legal assistant Shanna, who did postings throughout the year—with M&M thanking her for the work on this blog.)  2020, although a challenging year due to the COVID-19 pandemic, produced an unusual amount of California state court and Ninth Circuit decisions on fee issues, such that we wrap up with a Top 30 Decisions list.  We wish our readers Happy Holidays, hoping you all stay safe.

            30.  APPEALABILITY.  K.J. v. Los Angeles Unified School Dist., 8 Cal.5^th 875 (Cal. Supreme Court Jan. 30, 2020)—authored by Justice Groban, discussed in our Feb. 19, 2020 post:  Client only appealing a sanctions award against an attorney properly preserved appellate jurisdiction over the appeal on attorney’s behalf where the circumstances showed that the attorney’s interests were at stake and no prejudice resulted to the other side.

            29.  CIVIL RIGHTS.  Vargas v. Howell, 949 F.3d 1188 (9^th Cir. Feb. 5, 2020)—majority decision authored by Circuit Judge Miller and dissent authored by District Judge Benitez, discussed in our Feb. 7, 2020 post:  90% reduction in fee request of civil rights plaintiff under 42 U.S.C. section 1983 remanded for a more adequate explanation where a mechanical arithmetic reduction was the methodology utilized by the district judge.

            28.  FAMILY LAW/SANCTIONS.  George v. Shams-Shirazi, 45 Cal.App.5^th 124 (Cal. App. 1^st Dist., Div. 1 Feb. 11, 2020)—authored by Justice Sanchez, discussed in our Feb. 19, 2020 post:  Family Code section 271 sanctions motion filing deadline is not hinged to civil deadlines for filing fees motions under the California Rules of Court; doctrine of laches determines if the motion filing is too late.

            27.  ETHICS/RETAINER AGREEMENTS.  Hance v. Super Store Industries, 44 Cal.App.5^th 676 (Cal. App. 5^th Dist. Jan. 23, 2020)—authored by Presiding Justice Hill, discussed in our Jan. 29, 2020 post:  Referring attorney to class action specialists, who failed to disclose that he had no professional liability insurance, had his fee division agreement invalidated under Rule of Professional Conduct, rule 1.4.2, although the trial judge on remand could decide if quantum meruit recovery was warranted.

            26.  PRIVATE ATTORNEY GENERAL.  Canyon Crest Conservancy v. County of Los Angeles, 46 Cal.App.5^th 398 (Cal. App. 2d Dist., Div. 4 Mar. 12, 2020 certified for publication)—authored by Justice Collins, discussed in our Feb. 20, 2020 post when unpublished:  No private attorney general fee award under Code of Civil Procedure section 1021.5 was justified because no public interest was implicated from a mere issuance of a “status quo” administrative stay which only vindicated plaintiff’s private interests rather than those of a large number of persons.

            25.  SPECIAL FEE SHIFTING STATUTE—REVIEW GRANTED BY CALIFORNIA SUPREME COURT.  Siry Investment, L.P. v. Farkondehpour, 45 Cal.App.5^th 1098 (Cal. App. 2d Dist., Div. 2 Mar. 3, 2020), rev. granted, No. S262081 (Cal. Supreme Court July 8, 2020)—DCA opinion authored by Justice Hoffstadt, discussed in our Mar. 4, 2020 post:  Attorney’s fees award based on Penal Code section 496(c) reversed because it does not apply to fraudulent diversion of business funds, but only applies to trafficking in stolen goods, parting company with the opposite conclusion reached in Switzer v. Wood, 35 Cal.App.5^th 116 (2019).  Fees/costs issue on review is: “May a trial court award treble damages and attorney fees under Penal Code section 496, subdivision (c), in a case involving the fraudulent diversion of business funds rather than trafficking in stolen goods?”

            24.  CIVIL RIGHTS.  Citizens for Free Speech, LLC v. County of Alameda, 953 F.3d 655 (9^th Cir. Mar. 24, 2020)—authored by District Judge Adelman, discussed in our Mar. 25, 2020 post:  Younger-based abstention dismissals can give rise to fee exposure for civil rights plaintiffs where a particular dismissal materially altered the parties’ legal relationships.

            23.  ETHICS/REFERRAL AGREEMENTS.  Reeve v. Meleyco, 46 Cal.App.5^th 1092 (Cal. App. 3d Dist. Mar. 24, 2020)—authored by Justice Mauro, discussed in our Mar. 25, 2020 post:  Attorneys need to obtain an express, written client consent to a fee referral arrangement under State Bar Rules of Professional Conduct, former rule 2-200 (now rule 1.5.1), with a signed acknowledgment by client of having received disclosure of the referral arrangement not satisfying the requirement; however, quantum meruit recovery may still be available in the trial court’s discretion if it is not time barred.

            22.  CIVIL RIGHTS/COSTS—REVIEW GRANTED BY CALIFORNIA SUPREME COURT.  Ducksworth v. Tri-Modal Distribution Services, 47 Cal.App.5^th 532 (Cal. App. 2d Dist., Div. 8 Apr. 7, 2020), rev. granted, No. S262699 (Cal. Supreme Court Aug. 12, 2020)—DCA opinion authored by Justice Wiley, not posted on by us because costs issue not discussed in DCA opinion which affirmed a summary judgment order on a statute of limitations administrative claims issue (but costs on appeal granted to the prevailing defendants on a FEHA claim victory):  The particular costs issue on review is this:  “Was it proper for the Court of Appeal to award costs on appeal under rule 8.278 of the California Rules of Court against an unsuccessful FEHA claimant in the absence of a finding that the underlying claims were objectively frivolous?”

            21.  CONSUMER STATUTES (LEMON LAW).  Mikhaeilpoor v. BMW of North America, 48 Cal.App.5^th 240 (Cal. App. 2d Dist., Div. 1 Apr. 1, 2020)—authored by Los Angeles County Superior Court Judge White, discussed in our Apr. 2, 2020 post:  Song-Beverly Act lemon law plaintiff winning a $35,805.80 jury verdict properly had a $344,639 fee request reduced to $94,864 in awarded fees by a trial judge based on a detailed explanation of reductions based on inefficiencies, over-lawyering, and unnecessary duplication.

            20.  CONSUMER STATUTES (CONSTRUCTION).  Moore v. Teed, 48 Cal.App.5^th 280 (Cal. App. 1^st Dist., Div. 1 Apr. 24, 2020)—authored by Justice Sanchez, discussed in our Apr. 27, 2020 post:  No contract is necessary to allow fee entitlement under Business and Professions Code section 7160 for a person induced to enter into a construction agreement on the basis of false or fraudulent statements by a contractor or a solicitor.

            19.  CONSUMER STATUTES (LEMON LAW).  Reynolds v. Ford Motor Co., 47 Cal.App.5^th 1105 (Cal. App. 1^st Dist., Div. 3 Apr. 21, 2020)—authored by Justice Petrou, discussed in our Apr. 23, 2020 post:  Plaintiff’s contingency fee agreement in a Song-Beverly Act (lemon law) case is irrelevant as far as setting the lodestar for fee calculation purposes, affirming a $201,891 fee award under the Song-Beverly Act fee shifting provision.

            18.  SECTION 998.  Anthony v. Li, 47 Cal.App.5^th 815 (Cal. App. 1^st Dist., Div. 3 Apr. 13, 2020)—authored by Justice Petrou, discussed in our Apr. 15, 2020 post:  Code of Civil Procedure section 998 joint offer to two defendants was invalid where prevailing plaintiff failed to specify that one defendant was included only as an insurer.

            17.  PRIVATE ATTORNEY GENERAL.  Carlsbad Police Officers Assn. v. City of Carlsbad, 49 Cal.App.5^th 135 (Cal. App. 4^th Dist., Div. 1 May 18, 2020)—authored by Justice Dato, discussed in our May 20, 2020 post:  Trial court cannot condition intervenors’ intervention in a reverse-Public Records Act action upon their agreement to strike an attorney’s fees prayer request under Code of Civil Procedure section 1021.5.

            16.  CLASS ACTION.  In re Optical Disk Drive Products Antitrust Litig., 959 F.3d 922 (9^th Cir. May 15, 2020)—authored by Circuit Judge Christen, discussed in our May 18, 2020 post:  No “bright-line” rule exists for percentage-of-recovery benchmarks in a mega-fund class action settlement, with variance between class counsel’s fee request and its upfront competitive bid being a factor to be considered in awarding fees. 

 

           

Year In Review – 2019

Year End Wrap-Up: Mike and Marc’s Top 20   Decisions in 2019

Supreme Court Room (Room 129), California State Library & Courts Building, 914 Capitol Mall, Sacramento, Sacramento County, CA

Part 2 of 2—Prevailing Party, Sanctions, and CCP § 998 Decisions Predominated In Our Last Top 20 Decisions.

            Here we go with the last Top 20 decisions to round out our 2019 Top 20 list.

10.  PREVAILING PARTY.  Cole v. Hammond, 37 Cal.App.5^th 912 (2d Dist., Div. 4 July 24, 2019)—authored by Justice Collins; discussed in our July 26, 2019 post:  Defendants winning mandatory dismissal of an action based on the case not being tried within 5 years of commencement were prevailing parties under contractual fees clause. 

9.  PREVAILING PARTY/SANCTIONS/SECTION 1717.  De la Carriere v. Greene, 39 Cal.App.5^th 270 (2d Dist., Div. 8 Aug. 28, 2019)—authored by Presiding Justice Bigelow; discussed in our Aug. 28, 2019 post:  Plaintiff’s work on post-judgment motions to obtain dismissal of cross-appeal by defendant prevailing at trial were not allowable under Civil Code § 1717 because defendant was prevailing party in the overall matter, requiring reversal of lower court’s fee award to plaintiff; plaintiff’s alternative CCP § 128.5 ground for affirmance did not work because lower court did not rule on this ground and only an appellate court can award sanctions for frivolous appellate work.

8.  SANCTIONS.  Marriage of Sahafzadeh-Taeb and Taeb, 39 Cal.App.5^th 124 (1^st Dist., Div. 1 Aug. 26, 2019)—authored by Justice Banke; discussed in our Aug. 26, 2019 post:  Recent amendments to CCP § 128.5 establish that subjective bad faith is required under § 128.5, while only objective bad faith is required under CCP § 128.7.

7.  SECTION 998.  Hersey v. Vopava, 38 Cal.App.5^th 792 (2d Dist., Div. 8 Aug. 14, 2019)—authored by Justice Stratton; discussed in our Aug. 15, 2019 post:  Rejecting offeree which rejected first and second CCP § 998 offers is entitled to addition of pre-offer fees/costs up through date of second offer when the offeree ultimately prevails at trial, with these pre-offer fees/costs being added to the judgment for purposes of determining who prevailed under section 998.

6.  EMPLOYMENT/SECTION 998.  Scott v. City of San Diego, 38 Cal.App.5^th 228 (4^th Dist., Div. 1 Aug. 1, 2019)—authored by Justice Guerrero; discussed in our Aug. 2, 2019 post:  Based on a legislative amendment effective January 1, 2019, nonfrivolous FEHA actions, even where the defense served a successful CCP § 998 offer, cannot give rise to routine costs recovery against unsuccessful plaintiff employee.

5.  FAMILY LAW.  Marriage of Bittenson, 41 Cal.App.5^th 333 (2d Dist., Div. 6 Oct. 22, 2012)—authored by Justice Yegan; discussed in our Oct. 24, 2019 post:  Family Code § 2034 establishes that a Family Law Attorney’s Real Property Lien to secure payment of attorney divorce fees is conditional such that a family law judge can revisit the propriety of it and can even expunge or limit the lien later on.

4.  POSTJUDGMENT ENFORCEMENT.  Highland Springs Conference and Training Center v. City of Banning, 255 Cal.Rptr.3d 331, 2019 WL 6208344 (4^th Dist., Div. 2 Nov. 21, 2019)—authored by Presiding Justice Ramirez; discussed in our Nov. 23, 2019 post:  Fees/costs incurred in successfully adding judgment debtors to a judgment under CCP § 187, including successful appellate work, should be classified as prejudgment costs not governed by the Enforcement of Judgments Law’s procedures/deadlines.

3.  FEE CLAUSE INTERPRETATION/PREVAILING PARTY.  Regency Midland Constr., Inc. v. Legendary Structures, Inc., 41 Cal.App.5^th 994 (2d Dist., Div. 8 Nov. 7, 2019)—authored by Justice Wiley; discussed in our Nov. 8 post:  A general contractor prevailed for purposes of a contractual fee award where the lower court upheld contractor’s retention withholding as to subcontractor even though contractor did not win all of its desired relief; just like statutory interpretation, when construing the text of an agreement, “read read read the contract.”

2.  CIVIL RIGHTS.  Beames v. City of Visalia, 2019 WL 6907528 (5^th Dist. Dec. 19, 2019)—authored by Justice Smith; discussed in our Dec. 23, 2019 post:  Plaintiff was entitled to fees under 42 U.S.C. § 1988 where a substantial federal civil rights claim was pled and plaintiff prevailed on a factually-related non-civil rights claim having merit.

1.  SPECIAL FEE SHIFTING STATUTE.  City of Los Angeles v. Metropolitan Water Dist. of So. Cal., 255 Cal.Rptr.3d 202, 2019 WL 6123675 (2d Dist., Div. 8 Nov. 19, 2019)—authored by Justice Stratton; discussed in our Dec. 1, 2019 post:  Successful party/intervenor was entitled to fee recovery in a California Public Records Act proceeding and a reverse-CPRA action, agreeing with Pasadena Public Officers Assn. v. City of Pasadena, 22 Cal.App.5^th 147, 157 [reviewed in our April 15, 2018 post].

PENDING CALIFORNIA SUPREME COURT REVIEW—ONLY ONE CASE.  K.J. v. Los Angeles Unified School Dist., S241057. (B269864; nonpublished opinion; Los Angeles County Superior Court; BC505356.) Petition for review after the Court of Appeal dismissed an appeal from an order in a civil action. This case presents the following issue: Does the Court of Appeal lack jurisdiction over an appeal from an order imposing sanctions on an attorney if the notice of appeal is brought in the name of the client rather than in the name of the attorney?

Year In Review – 2019

Year End Wrap-Up: Mike and Marc’s Top 20  Decisions in 2019

Courtroom three, James R. Browning U.S. Court of Appeals Building, San Francisco, California

Part 1 of 2—CCP § 998 Decisions Were Front and Center in Early 2019, With Other Issues Spread Across the Board.

            It is the Holiday season, and we continue our tradition to present our personal top 20 decisions from our blog postings during 2019, keeping in mind they are simply a distillation of what we selectively picked as important.  Day in and day out, California appellate courts and the Ninth Circuit decide fees issues—and we do not mean to take away from the jurisprudence in other areas of the law, given that first impression or emerging issues were addressed at various points during the year.

20.  MEDIATION.  Berkeley Cement, Inc. v. Regents of the University of California, 30 Cal.App.5^th 1133 (5^th Dist. Jan. 7, 2019)—authored by Presiding Justice Hill; discussed in our January 8, 2019 post:  Voluntary, non-court ordered mediation expenses are not categorically unreasonable with respect to being awarded as routine costs, with the trial judge having discretion to allow them if reasonably necessary for the litigation.

19.  SECTION 998.  Licudine v. Cedars-Sinai Medical Center, 31 Cal.App.5th 918 (2d Dist., Div. 2 Jan. 3, 2019)—authored by Justice Hoffstadt; discussed in our January 4, 2019 post:  In evaluating whether a CCP § 998 offer is made in good faith, three factors are most pertinent:  (1) how fair into the litigation the section 998 offer was made; (2) the information available to the offeree prior to the section 998’s offer expiration (such as voluntary exchanges of information or the relationship between the parties); and (3) whether the offeree let the offeror know it needed more information, plus the offeror’s response to such a request. 

18.  ARBITRATION/SECTION 998.  Heimlich v. Shivji, 7 Cal.5th 350 (Cal. Supreme Court May 30, 2019)—authored by Justice Corrigan; discussed in our May 31, 2019 post:  Rejected CCP § 998 offer should not be presented before the arbitrator in the merits phase of an arbitration; a party has until 15 days after issuance of a final award to submit a cost request asserting rejection of the section 998 offer to the arbitrator, with the arbitrator having power to consider the request and amend any award accordingly.

17.  APPEALABILITY/ETHICS.  Levinson Arshonsky & Kurtz LLP v. Kim, 35 Cal.App.5^th 896 (2d Dist., Div. 1 May 29, 2019)—authored by Assigned Justice Weingart; discussed in our May 30, 2019 post:  A trial court’s denial of a petition to compel a Mandatory Fee Arbitration Act arbitration is not appealable, but must be challenged through an extraordinary writ petition.

16.  EMPLOYMENT/SECTION 1717:  Dane-Elec Corp. v. Bodokh, 35 Cal.App.5^th 761 (4^th Dist., Div. 3 May 24, 2019)—authored by Justice Fybel; discussed in our May 26, 2019 post:  Labor Code § 218.5(a)’s prohibition of not allowing attorney’s fees recovery by prevailing employers (unless the trial judge determines the wage nonpayment claims were brought in bad faith) controls over Civil Code § 1717’s right to contractual fees in a case where the contractual claim is inextricably intertwined with the wage claims.

15.  PRIVATE ATTORNEY GENERAL.  Sweetwater Union High School v. Julian Union Elementary School Dist., 36 Cal.App.5^th 970 (4^th Dist., Div. 1 June 4, 2019)—authored by Justices Nares; discussed in our June 9, 2019 post:  In a charter school dispute, plaintiff’s partial success justified CCP § 1021.5 fee recovery because charter school issue is of public interest and the revenue gain from increased enrollment as a result of partial success was trivial when compared to litigation expenses on the Whitley financial burden/incentive prong of § 1021.5.

14.  REQUESTS FOR ADMISSION.  Samsky v. State Farm Mutual Auto. Ins. Co., 37 Cal.App.5^th 517 (2d Dist., Div. 8 June 26, 2019)—authored by Justice Stratton; discussed in our June 30, 2019 post:  Denial of “costs of proof” sanctions under CCP § 2033.420 is reversed because the lower court improperly put the burden of proving the nonexistence of RFA denial exceptions on the RFA propounding party rather than the RFA responding party.

13.  FAMILY LAW.  In re Marriage of Ciprari, 32 Cal.App.5^th 83 (2d Dist., Div. 1 Feb. 6, 2019)—authored by Assigned Justice Currey; discussed in our June 25, 2019 post:  Even though ex-wife could pay for attorney’s fees, “needs-based” fees request analysis requires a more nuanced review where ex-husband had run up litigation expenses and over-litigated the dissolution case.

12.  CONSUMER STATUTES (a two-fer).  Hanna v. Mercedes-Benz USA, LLC, 36 Cal.App.5^th 493 (2d Dist., Div. 2 June 18, 2019)—authored by Presiding Justice Perluss; discussed in our June 19, 2019 post:  Under lemon law fee-shifting statute (Civ. Code § 1794(d)), fee recovery for a prevailing car buyer is based on lodestar analysis, unimpacted by percentage of recovery contingency analysis, and Morris v. Hyundai Motor America, 41 Cal.App.5th 24 (2d Dist., Div. 7 Sept. 16, 2019)—authored by Assigned Justice Stone; discussed in our Sept. 17, 2019 post:  relying on Hanna, trial judge properly reduced lemon law fee request of $191,668.75 to an actual fee award of $73,864 based on lodestar reductions, reducing for duplication, high hourly rates, non-complexity of the case, and failure to use legal professions with lower billing rates.

11.  POSTJUDGMENT ENFORCEMENT.  Wertheim, LLC v. Currency Corp., 35 Cal.App.5th 1124 (2d Dist., Div. 1 June 6, 2019)—authored by Justice Chaney; discussed in our June 10, 2019 post:  Appeal bond issuer’s deposit into court was not a satisfaction of judgment under CCP § 685.030(d) where judgment debtor blocked judgment creditor’s efforts to obtain recovery of the deposited funds.

            Happy Holidays to our readers!

Year In Review – 2018

Year End Wrap-Up: Mike & Marc’s Top 25 Decisions In 2018

Part 2 of 2—Employment Issues, Lender Trust Deed Fee Clauses, Fees As Damages, Section 998, And Sanctions Dominated The Second Batch Of Our Top 25.

            In line with our prior post on some of the Top 25 decisions, we now round out with the 12 additional decisions. If other decisions come out after this post that are significant, we will include them in the 2019 top cases. Happy Holidays to our readers!

12. EMPLOYMENT – Nishiki v. Danko Meredith P.C., 25 Cal.App.5^th 883 (1^st Dist., Div. 4 Aug. 1, 2018) – authored by Justice Schulman; discussed in our Aug. 3, 2018 post: Employer is liable for significant employee fees of $86,160 under Labor Code section 98.2(c) even though only $4,250 in waiting time penalties awarded by Labor Commissioner and superior court after Berman hearing. (California Supreme Court denied review on Nov. 14, 2018.)

11. EMPLOYMENT – Atempa v. Pedrazzani, 27 Cal.App.5^th 809 (4^th Dist., Div. 1 Sept. 28, 2018) – authored by Justice Irion; discussed in our Sept. 30, 2018 post: Individual officer/agent of corporate employer can be held liable for attorney’s fees under PAGA (Labor Code § 2699(g)) for certain wage/hour violations. (Petition for review filed and pending as of Nov. 7, 2018 with the California Supreme Court.)

10. DEEDS OF TRUST – Chacker v. JPMorgan Chase Bank, N.A., 27 Cal.App.5^th 751 (2d Dist., Div. 5 Sept. 19, 2018) – authored by Justice Baker; discussed in our Sept. 20, 2018 post and Hart v. Clear Recon Corp., 27 Cal.App.5^th 322 (2d Dist., Div. 8 Sept. 18, 2018) – authored by Justice Rubin; discussed in our Sept. 19, 2018 post: Narrow deed of trust provisions only allowed recovery of fees incurred by lender which could be added to loan amounts due by borrowers, but these provisions did not allow for independent fee award over the deed of trust limitations.

9. DAMAGES/SUBSTANTIATION OF REASONABLENESS OF FEES – Copenbarger v. Morris Cerullo World Evangelism, Inc., 29 Cal.App.5^th 1 (4^th Dist., Div. 3 Nov. 13, 2018) – authored by Justice Fybel and discussed in our Oct. 20, 2018 post and Nov. 13, 2018 post: Attorney’s fees sought as damages for a contractual breach had to be proven at trial through admissible evidence, with presentation of client’s testimony alone not able to competently show verification or reasonableness of counsel’s work, reversing trial court’s admission of client’s testimony and overturning the judgment as a matter of law.

8. SECTION 998 – Martinez v. Eatlite One, Inc., 27 Cal.App.5^th 1181 (4^th Dist., Div. 3 Oct. 3, 2018) – authored by Justice Ikola and discussed in our Oct. 3, 2018 post: Although calling for legislative clarification of the statute, section 998 requires a trial court to compare the jury’s verdict plus plaintiff’s pre-offer fees/costs against the amount of the 998 offer plus plaintiff’s pre-offer fees/costs in determining whether plaintiff received a more favorable judgment for fees/costs shifting purposes.

7. SANCTIONS -- Huerta v. Kava Holdings, Inc., 29 Cal.App.5^th 74 (2d Dist., Div. 8) – authored by Orange County Superior Court Judge Kim Dunning (sitting by assignment) and discussed in our Nov. 17, 2018 post: Panel followed Agave v. Merrill Lynch, Pierce, Fenner & Smith, 18 Cal.App.5th 1098 (2018) [#22 of our Top 25 Cases for 2018] in deciding that FEHA plaintiffs in pre-2019 cases do not face costs/fees exposure where a CCP § 998 offer was involved unless the case filing/prosecution is found to be frivolous in nature, finding a legislative amendment effective January 1, 2019 to be persuasive with respect to its conclusion.

6. COSTS/EMPLOYMENT – Quiles v. Parent, 28 Cal.App.5^th 100 (4th Dist., Div. 3 Nov. 2, 2018) – authored by Justice Fybel and discussed in our Nov. 6, 2018 post: In a Federal Labor Standards Act (FLSA) action, plaintiff was entitled to recovery of certain routine costs under the federal statute even though not recoverable under state law costs provisions when plaintiff prevailed on FLSA claims.

5. TAXATION – Land Partners, LLC v. County of Orange, 19 Cal.App.5^th 741 (4^th Dist., Div. 3 Jan. 22, 2018) – authored by Justice Ikola and discussed in our Jan. 16, 2018 post and Jan. 24, 2018 post: Losing County tax assessor is not subject to Revenue and Taxation Code § 5152 fee exposure in taxpayer refund action where assessor only wrongly applied the law.

4. ARBITRATION/COSTS – EHM Productions, Inc. v. Starline Tours of Hollywood, Inc., 21 Cal.App.5^th 1058 (2d Dist., Div. 2 Mar. 28, 2018) – authored by Justice Chavez and discussed in our Mar. 30, 2018 post: Incremental costs award process used during the course of an arbitration, after a JAMS appellate panel confirmed the merits award, did not violate the one judgment rule, waiver, or estoppel principles.

3. SECTION 998 – Meleski v. Estate of Hotlen, 2018 WL 6241504 (3d Dist. Nov. 29, 2018) – authored by Acting Presiding Justice Blease and discussed in our Dec. 6, 2018 post: Non-named insurance carrier is liable for CCP § 998 costs after rejecting 998 offer on behalf of its insured when the insured did not do better than the 998 offer after a jury trial.

2. INTELLECTUAL PROPERTY/PREVAILING PARTY – Close v. Sotheby’s, Inc., No. 16-56234 (9^th Cir. Dec. 3, 2018) – per curiam order and discussed in our Dec. 4, 2018 post: Defendants prevailing on attorney’s fees compensable-California Resale Royalties Act claims based on preemption grounds, despite existence of non-compensable, remaining “sliver” claims, were prevailing parties under the fee-shifting provision despite the existence of some residual claims for purposes of applying for appellate fees.

1. SANCTIONS -- CPF Vaseo Associates, LLC v. Gray, 2018 WL 6380742 (4^th Dist., Div. 1 Dec. 6, 2018) – authored by Justice Dato and discussed in our Dec. 6, 2018 post: Panel decided that 4/1 DCA’s prior decision in San Diegans for Open Government v. City of San Diego, 247 Cal.App.4^th 1306 (2016) was incorrect and followed the reasoning by the 2/8 DCA in Nutrition Distribution, LLC v. Southern SARMS, Inc., 20 Cal.App.5^th 117 (2018) [#19 of our Top 25 Decisions for 2018], concluding that parties moving for CCP § 128.5 sanctions must satisfy the 21-day “safe harbor” requirements of CCP § 128.7.

Year In Review – 2018

Year End Wrap-Up: Mike & Marc’s Top 25 Decisions In 2018

Artist Andrew Scott's stainless steel, 30-foot-long gavel outside the Thomas J. Moyer Ohio Judicial Center

Part 1 of 2—CCP §998, Civil Code § 1717, Civil Rights, Sanctions, And Ethics Dominated First Batch.

            As is traditional during the Holidays, we choose the top attorney’s fees/costs published cases which we deem worthy of a year-end wrap up review. They cut across numerous issues, and we do not intend to denigrate at all the numerous other decisions which were written in these areas—with readers able to find them easily by searching our home page under the “Categories” or “Archives” headings. Here are the first 13 decisions for the 2018 wrap up:

25. HOMEOWNER ASSOCIATIONS – Artus v. Gramercy Towers Condominium Assn., 19 Cal.App.5^th 923 (1^st Dist., Div. 1 Jan. 24, 2018) –authored by Justice Banke; discussed in our Jan. 28, 2018 post: Interim successes by homeowner against homeowner association did not allow homeowner an entitlement to an award of fees under the Davis-Stirling Act.

24. CIVIL RIGHTS – Bustos v. Global P.E.T., Inc., 19 Cal.App.5^th 558 (4^th Dist., Div. 2 Jan. 16, 2018) – authored by Justice Codrington; discussed in our Jan. 16, 2018 and Dec. 22, 2017 posts: Plaintiff obtaining a favorable vote on one jury question, but losing on causation issue, was not entitled to FEHA fee recovery.

23. ALLOCATION/FEE CLAUSE INTERPRETATION/ SECTION 1717 – Burkhalter Kessler Clement & George LLP v. Hamilton, 19 Cal.App.5^th 38 (4^th Dist., Div. 3 Jan. 8, 2018) – authored by Justice Moore, discussed in our Jan. 9, 2018 post: There can be more than one prevailing party where plaintiff prevailed against a limited liability partnership defendant but lost against alter ego defendant, although apportionment of work required where defendants were jointly represented.

22. CIVIL RIGHTS/SECTION 998 – Arave v. Merrill Lynch, Pierce, Fenner & Smith, 18 Cal.App.5^th 1098 (4^th Dist., Div. 2 Jan. 2, 2018) – authored by Justice Slough; discussed in our Jan. 2, 2018 post: Appellate court denied defense expert witness costs as against unsuccessful FEHA plaintiff rejecting a CCP § 998 offer in a nonfrivolous FEHA case, departing company from contrary reasoning in 1/5 DCA and 4/1 DCA decisions. [NOTE: Arave was found persuasive in one of our upcoming top 25 decisions on this split of opinion, see Huerta v. Kava Holdings, Inc., 2018 W 5999639, a 2/8 DCA published opinion issued in November 2018].

21. PREVAILING PARTY/SECTION 1717 – Marina Pacifica Homeowners Assn. v. Southern California Financial Corp., 20 Cal.App.5^th 191 (2d Dist., Div. 8 Feb. 5, 2018) – authored by Justice Grimes; discussed in our Feb. 6, 2018 post: No attorney’s fees awarded to either side where no clear winning prevailing party under Civil Code § 1717 because homeowner did not completely rid a transfer fee but HOA only got 10% of FMV valuation; settlement communications could not be used in determining whether one side prevailed or not for “prevailing party” analysis.

20. SECTION 998 – Gonzalez v. Lew, 20 Cal.App.5^th 155 (2d Dist., Div. 3 Feb. 1, 2018) – authored by Justice Lavin; discussed in our Feb. 3, 2018 post: CCP § 998 joint offer to multiple plaintiffs was not invalid in dispute between both sets of plaintiffs’ heirs and owners of a house. (California Supreme Court denied a petition for review on May 9, 2018.)

19. SANCTIONS – Nutrition Distribution, LLC v. Southern SARMS, Inc., 20 Cal.App.5th 117 (2d Dist., Div. 7 Jan. 31, 2018) – authored by Presiding Justice Perluss; discussed in our Feb. 3, 2018 post: CCP § 128.5 sanctions are not appropriate unless moving party satisfies CCP § 128.7’s “safe harbor” protections, disagreeing with contrary conclusion by 4/1 DCA in San Diegans for Open Government v. San Diego, 247 Cal.App.4^th 1306, 1317 (2016). [NOTE: A different panel of the 4/1 DCA, in the recent December 2018 decision of CPF Vaseo Associates LLC v. Gray agreed with Nutrition Distribution and disagreed with San Diegans, which we will review later in the remainder of our top 25 decisions].

18. ETHICS/EQUITY/RETAINER AGREEMENTS – Heller Ehrman LLP v. Davis Wright Tremaine LLP, 4 Cal.5^th 467 (Cal. Supreme Ct. Mar. 5, 2018) – authored by Justice Cuellar; discussed in our March 8, 2018 post: Dissolved law firm has no property interest in legal matters handled on an hourly basis and has no interest in profits generated by former partners’ work on hourly matters pending at the time of the firm’s dissolution; court refused to decide if Jewel v. Boxer is still applicable to contingency matters.

17. SECTION 1717 – Shapira v. Lifetech Resources, 22 Cal.App.5^th 429 (2d Dist., Div. 4 Apr. 17, 2018) – authored by Justice Collins; discussed in our Apr. 20, 2018 post: Litigant does not face Civil Code § 1717 fee exposure where litigant voluntarily dismisses with prejudice pending matter after trial, under submission, but before any merits decision comes down.   

16. CONSTRUCTION – United Rigger & Erectors, Inc. v. Coast Iron & Steel Co., 4 Cal.5^th 1082 (Cal. Supreme Ct. May 14, 2018) –authored by Justice Cuellar; discussed in our May 15, 2018 post: Construction prompt payment statutes only relate, for penalties and fee exposure, to the relevant payment dispute rather than a more generalized non-retention construction dispute.

15. ETHICS – Sheppard, Mullin, Richter & Hampton v. J-M Mfg. Co., Inc., 6 Cal.5^th 59 (Cal. Supreme Ct. Aug. 30, 2018) – authored by Justice Kruger; discussed in our Aug. 31, 2018 post: Contractual fee recovery is not allowable to law firm with undisclosed conflict of interest, which was not cured by boilerplate conflict waiver from challenging party; however, the matter was remanded to see if the ethical violation was egregious enough to prevent quantum meruit recovery.

14. PROBATE – Powell v. Tagami, 26 Cal.App.5^th 219 (4^th Dist., Div. 1 Aug. 15, 2018) – authored by Presiding Justice McConnell; discussed in our Aug. 9, 2018 and Aug. 16, 2018 posts: Probate compensation allowed for mediation work, personal litigant work, and accounting objector work where unwarranted ad hominem attacks were levied against opposing siblings and their attorneys.

13. COSTS – LAUSD Asbestos Cases, 25 Cal.App.5^th 1116 (2d Dist., Div. 4 Aug. 8, 2018) – authored by Justice Collins; discussed in our Aug. 9, 2018 post): Ability to pay does not enter into determination of whether CCP § 1032 routine costs are assessed against a party, even against a likely more impecunious plaintiff in an asbestos lawsuit. (California Supreme Court denied review on November 20, 2018.)

 

Year-End Wrap-Up Supplement: Survey Of Percentage Of Issues Addressed In California State And Ninth Circuit Published Decisions During 2017

For California State Decisions, Fee Clause Interpretation, Prevailing Party, Probate, Family Law, Civil Rights, Section 1717, Private Attorney General, and Fee Reasonableness Issues Rose To The Top, While Ninth Circuit Published Decisions Addressed An Array of Issues.

            As we usher in the 2018 New Year, we thought we would go back and provide a breakdown of attorney’s fees/costs/sanctions issues addressed by California state courts (published and unpublished) and by the Ninth Circuit (published only) during 2017.  We went back through each month and tallied the results for certain categories, sometimes combining our home categories into one category for ease of reference.  (For example, we included discovery, 128.5, and 128.7 sanctions under the category “Sanctions”.)  There was a total of 295 California decisions surveyed, compared to 12 Ninth Circuit published decisions which we examined.  The percentages we rounded off from the total “case pool,” but we got pretty close to 100%.  Here is how it panned out:

 

CALIFORNIA APPELLATE DECISIONS (PUBLISHED AND UNPUBLISHED)

 

• Fee clause interpretation – 23 decisions – 8%;
• Prevailing party – 22 decisions – 7.5%;
• Probate – 17 decisions – 6%;
• Family law – 15 decisions – 5%;
• Civil rights (mainly FEHA) – 15 decisions – 5%;
• Civil Code section 1717 – 16 decisions – 5%;
• Private attorney general (CCP § 1021.5) – 15 decisions – 5%;
• Reasonableness of fees – 15 decisions – 5%;
• Employment – 11 decisions – 4%;
• Routine costs – 13 decisions – 4.5%;
• Code of Civil Procedure section 998 – 13 decisions – 4.5%;
• Arbitration – 8 decisions – 3%;
• Sanctions – 9 decisions – 3%;
• Appealability – 8 decisions – 3%;
• Apportionment (allocation) – 9 decisions – 3%;
• Liens for attorney’s fees – 7 decisions – 2%;
• SLAPP – 7 decisions – 2%;
• Homeowner associations – 7 decisions – 2%;
• Special fee shifting statutes other than above – 6 decisions – 2%;
• Indemnity – 7 decisions – 2%;
• Consumer statutes – 5 decisions – 1.5%;
• Substantiation of reasonableness of fees – 5 decisions – 1.5%;
• Jurisdiction (primary discussion in decisions) – 2 decisions – 1%;
• Mediation (fee clause disqualification) – 3 decisions – 1%;
• Class actions – 2 decisions – 1%;
• Deadlines – 4 decisions – 1%;
• Landlord/tenant – 4 decisions – 1%;
• Request for admissions proof-of-costs sanctions – 3 decisions – 1%;
• Undertaking/bonding – 2 decisions – 1%;
• Construction – 2 decisions – 1%;
• Insurance (mainly Brandt issues) – 3 decisions – 1%;
• Retainer agreements – 2 decisions – 1%;
• Assignment issues – 2 decisions – 1%;
• Trade secret – 2 decisions – 1%;
• Damages – 2 decisions – 1%;
• Unlicensed contractor – 2 decisions – 1%;
• Tort of another – 2 decisions – 1%;
• Interest – 1 decision -- .5%;
• Eminent domain – 1 decision -- .5%;
• Judgment enforcement – 1 decision -- .5%;
• Fees on fees – 1 decision -- .5%; and
• Partition – 1 decision -- .5%

NINTH CIRCUIT (PUBLISHED)

• Intellectual property – 1 decision – 8%;
• Fees on fees – 2 decisions – 17%;
• IDEA – 1 decision – 8%;
• Prevailing party – 1 decision – 8%;
• Sanctions – 1 decision – 8%;
• Appealability – 1 decision – 8%;
• Freedom of Information Act (FOIA) – 1 decision – 8%;
• FRCP Rule 68 – 1 decision – 8%;
• Class action – 1 decision – 8%;
• Bankruptcy – 1 decision – 8%; and
• Special fee shifting statute other than above – 1 decision – 8%.

For Part 1 of our Top 20 Year-End Wrap-Up click here.

For Part 2 of our Top 20 Year-End Wrap-Up click here.

 

           

Year In Review Wrap-Up: Mike & Marc’s Top 20 Decisions In 2017

Part 2 of 2 –Remaining Ten Decisions Also Covered An Array Of Different Issues.

            As we have done in past years, wishing all readers the happiest of holidays, we now finish off our top 20 published decisions from California appellate courts, the United States Supreme Court (SCOTUS), and the Ninth Circuit for the 2017 year.  This list is not meant to slight other important decisions in certain areas, but these are the ones that “rose to the top” from our perspective.  The number of ranking is not geared at all to the decision’s relative importance, and we do not mean to overlook other published decisions—not to mention the wealth of unpublished decisions on fees/costs issues which we reviewed in 2017.  Although we have performed no empirical study, our practical experience posting decisions over the year would lead us to estimate that a third to one half of the civil/family law decisions involve fees and/or costs issues.  So here we go on the remaining 10 decisions highlighted at the end of the 2017 year:

10. INSURANCE – Pulte Home Corp. v. American Safety Indemnity Co., 14 Cal.App.5^th 1086 (4^th Dist., Div. 1 Aug. 30, 2017) – authored by Acting Presiding Justice Huffman; discussed in our Aug. 30, 2017 post: Modified contingency agreement possibly done to enhance insured’s award of Brandt fees reversed and remanded to calculate fees on the basis of the original pre-trial contingency arrangement.

9. HOMEOWNER ASSOCIATIONS – Retzloff v. Moulton Parkway Residents’ Assn., No. One, 14 Cal.App.5^th 742 (4^th Dist., Div. 3 Aug. 23, 2017) – authored by Justice Moore; discussed in our Aug. 23, 2017 post: Civil Code section 5235(c), the Davis-Stirling Act’s costs-shifting provision relating to a situation where a trial judge finds an action against a prevailing common interest development to have been frivolous, unreasonable, or without foundation, only allows for recovery of routine costs rather than attorney’s fees.  Appellate court also defined frivolous for purposes of the statutory section in line with the malicious prosecution attorney standard for frivolousness. 

8. SUBSTANTIATION OF REASONABLENESS OF FEES – Roth v. Plikaytis, 15 Cal.App.5^th 283 (4^th Dist., Div. 1 Sept. 13, 2017) – authored by Justice Dato; discussed in our Sept. 16, 2017 post: Trial judge erred in failing to consider prior motion declarations when adjudging a fee request in a subsequent fee motion proceeding, reconciling various California Rules of Court and summary judgment/adjudication motion principles in the process.  “[W]e see no reason why incorporation by reference would be any less appropriate for a fee motion,” but observing that the preferred practice would be to refile previously-filed documents with the subsequent fee motion paperwork.

7. ARBITRATION/BANKRUPTCY – In re CWS Enterprises, Inc., 870 F.3d 1106 (9^th Cir. Sept. 14, 2017) – authored by Senior Circuit Judge Kleinfeld; discussed in our Sept. 16, 2017 post: Reconciling 11 U.S.C. § 502(b)(4) [Chapter 11 bankruptcy provision limiting pre-petition fees to reasonable value of attorney services] and 28 U.S.C. § 1738 [full faith and credit act involving an arbitration award], the Ninth Circuit determined that a district court must adjudge if the foreign award or judgment was reasonable but should give deference to the foreign award/judgment if the reasonableness issue was fully vetted.

6. DISCOVERY/SANCTIONS – Padron v. Watchtower Bible and Tract Society of New York, Inc., 16 Cal.App.5^th 1246 (4^th Dist., Div. 1 Nov. 9, 2017) – authored by Acting Presiding Justice Huffman; discussed in our Nov. 10, 2017 post: Trial judge can impose a hefty daily, continuing monetary sanction against a party steadfastly refusing to comply with a discovery order.

5. FEES ON FEES – Micha v. Sun Life Assurance of Canada, 874 F.3d 1052 (9^th Cir. Oct. 31, 2017) – authored by Senior Circuit Judge Murphy (10^th Cir., by assignment); discussed in our Nov. 1, 2017 post: District judge’s refusal under ERISA’s fee-shifting statute to award appellate “fees on fees” reversed where district court failed to focus on the entire course of the litigation rather than only concentrating on activities relating to the successful defense of the prior appeal.

4. SECTION 1717 – California-American Water Co. v. Marina Coast Water Dist., __ Cal.App.5^th __, 2017 WL 6397685 (1^st Dist., Div. 1 Dec. 15, 2017) – authored by Presiding Justice Humes; discussed in our Dec. 19, 2017 post: Prevailing party successfully invalidating contract on non-per se illegality principles is entitled to Civil Code section 1717 fee recovery.

3. CIVIL RIGHTS – Lopez v. Routt, 17 Cal.App.5^th 1006 (2d Dist., Div. 3 Nov. 29, 2017) – authored by Judge Stone (Los Angeles County Superior Court, by assignment); discussed in our Dec. 2, 2017 post: Supervising employee FEHA defendant had to meet same frivolousness standard applicable to successful employer defendant in order to recover fees from an unsuccessful FEHA plaintiff.

2. PROBATE – Pizarro v. Reynoso, 10 Cal.App.5^th 172 (3d Dist. Mar. 28, 2017) – authored by Acting Presiding Justice Nicholson; discussed in our Jan. 19, 2017 and Mar. 29, 2017 posts: Fees incurred by prevailing trust/trustee are chargeable against the trust share of a beneficiary bringing an unfounded proceeding against the trust as well as against the trust share of a beneficiary taking unfounded positions (even though not bringing an independent proceeding) in a contested trust matter, citing Probate Code sections 17211(a) and 15642(d).

1. FEE CLAUSE INTERPRETATION – Mountain Air Enterprises, LLC v. Sundowner Towers, LLC, 3 Cal.5^th 744 (2017) – authored by Justice Chin; discussed in our Aug. 1, 2017 post: Fee clause language relating to “an action” or “a proceeding” did not encompass work relating to an affirmative defense, resolving a split in authority between different divisions of the Second District.  The California Supreme Court, by a 4-3 vote, also found that “because of” language in a fees clause still gave rise to fee recovery where litigation efforts related to inextricably intertwined connections between two agreements with fees provisions, although not articulating the exact nature of the causal link necessary to allow for such fee recovery.

    To go to Part 1 of 2 of our Top  20, click here.

Year In Review 2017 - Part I of 2

Year End Wrap-Up:  Mike & Marc’s Top 20 Decisions In 2017

Part 1 of 2 – 2017 Saw Decisions On Wide Spectrum Of Fees/Costs Issues.

            As we have done in past years, wishing all readers the happiest of holidays, we now present our top 20 published decisions from California appellate courts, the United States Supreme Court (SCOTUS), and the Ninth Circuit for the 2017 year.  This list is not meant to slight other important decisions in certain areas, but these are the ones that “rose to the top” from our perspective.  The number of ranking is not geared at all to the decision’s relative importance, and we do not mean to overlook other published decisions—not to mention the wealth of unpublished decisions on fees/costs issues which we reviewed in 2017.   Here we go on the first 10, with the remaining selections to be reviewed in a post before the end of this year:

20. INTELLECTUAL PROPERTY – Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657 (9^th Cir. Jan. 23, 2017) – authored by Circuit Judge Nelson; discussed in our Jan. 28, 2017 post: Appellate court affirmed copyright fee award of $5.2 million, determining that defendants beating plaintiff’s claims equally vindicate copyright policies as plaintiffs who are successful in such cases.

19. SLAPP – Barry v. State Bar of California, 2 Cal.5^th 318 (Cal. Supreme Court Jan. 5, 2017) – authored by Justice Kruger; discussed in our Jan. 13, 2017 post: Prevailing SLAPP defendant entitled to mandatory SLAPP fee recovery when the defense prevailed on a lack of subject matter basis.

18. REQUESTS FOR ADMISSIONS – Rhule v. WaveFront Technology, Inc., 8 Cal.App.5^th 1223 (2d Dist., Div. 5 Feb. 23, 2017) – authored by Justice Baker; discussed in our Feb. 24, 2017 post:

Trial judges have discretion to award attorney’s fees to party allowed leave to correct request for admission responses under CCP § 2033.330 as a condition of allowing withdrawal of the mistaken responses.

17. COSTS/UNDERTAKING – Quiles v. Parent, 10 Cal.App.5^th 130 (4^th Dist., Div. 3 Mar. 37, 2017) – authored by the Court (Leary, P.J., Fybel, J., & Ikola, J.); discussed in our Mar. 27, 2017 post:

Judgment debtor satisfying compensatory damages component of judgment does not have to file an undertaking/bond for the just the remaining fees/costs components of a judgment, relying on CCP § 917.1(d) but inviting legislative amendment on the issue.

16. PRIVATE ATTORNEY GENERAL – Save Our Heritage Organisation v. City of San Diego, 11 Cal.App.5^th 154 (4^th Dist., Div. 1 Apr. 27, 2017) – authored by Presiding Justice McConnell; discussed in our Apr. 27, 2017 post: Appellate court affirmed a fee denial of a fee request leveled against a project opponent attempting to vindicate legal/environmental concerns, also determining that a project proponent is not disqualified from seeking CCP § 1021.5 fees.

15. SECTION 1717 – Dispute.Suite.com v. Scoreinc.com, 2 Cal.5th 968 (Cal. Supreme Court Apr. 6, 2017) – authored by Justice Werdegar; discussed in our Apr. 11, 2017 post: Civil Code section 1717 fees properly denied where prevailing litigant obtained a forum selection transfer and the other side refiled suit in foreign state, finding prevailing party determination was premature.

14. DAMAGES – Monster, LLC v. Superior Court, 12 Cal.App.5^th 1214 (2d Dist., Div. 7 June 21, 2017) – authored by Acting Presiding Justice Zelon; discussed in our June 22, 2017 post: Attorney’s fees recoverable as damages, not just costs, must be pled and proven at trial unless parties stipulate otherwise, with trial jury right protections at issue.

13. FAMILY LAW – Webb v. Webb, 12 Cal.App.5^th 876 (2d Dist., Div. 8 June 13, 2017) – authored by Justice Rubin; discussed in our June 14, 2017 post: Family Code section 271 sanctions can only be awarded to parties in a case, rather than their attorneys.

12. ARBITRATION/SECTION 998 – Heimlich v. Shivji, 12 Cal.App.5th 152 (6th Dist. May 31, 2017), rev. granted, No. S243029: California Supreme Court has framed the issue for review this way – “When a party to an arbitration proceeding makes an offer of compromise pursuant to Code of Civil Procedure section 998 and obtains a result in the arbitration more favorable to it than that offer, how, when, and from whom does that party request costs as provided under section 998?”  [Court of Appeal held that no pre-merits ruling alert should be made to arbitrator, but section 998 cost-shifting issue must be presented to arbitrator so a supplemental award, one way or the other, can be issued by arbitrator.]  We posted on June 14, 2017.

11. EMPLOYMENT – Shames v. Utility Consumers’ Action Network, 13 Cal.App.5^th 29 (4^th Dist., Div. 1 June 29, 2017) – authored by Justice Aaron; discussed in our July 4, 2017 post: Litigant in wage hour nonpayment action needs to specifically plead Labor Code section 218.5 recovery in either original or amended complaint/answer.

        To go to Part 2 of our Year In Review Wrap-Up for 2017, click here.

Year End Wrap-Up: Mike and Marc’s Top 30 Decisions in 2016

 

Part 2 of 2—End of a Prolific Year For Fees/Costs Decisions.

       As we have done in past years, wishing all readers the happiest of holidays, we now present our top 30 published decisions from California appellate courts, the United States Supreme Court (SCOTUS), and the Ninth Circuit for the 2016 year.  For past years, we have done a “Top 20,” but this year was especially prolific for decisions involving attorney’s fees/costs issues.  This list is not meant to slight other important decisions in certain areas, but these are the ones that “rose to the top” from our perspective. We posted on December 27, 2016 with the first 15 of selected decisions and now complete with the final 15.  The number of ranking is not geared at all to the decision’s relative importance, and we do not mean to overlook other published decisions—not to mention the wealth of unpublished decisions on fees/costs issues. Here we go on the final 15:

     15.  SANCTIONS—San Diegans For Open Government v. City of San Diego, 247 Cal.App.4^th 1306 (4^th Dist., Div. 1 June 7, 2016)—authored by Justice McDonald; discussed in our June 9, 2016 post: Code of Civil Procedure section 128.5 applies to cases pending as of January 1, 2015 even though sanctioned conduct occurred before this date; section 128.5 does not require compliance with CCP § 128.7’s safe harbor requirements; section 128.5 claimant need only show objective unreasonableness, not subjective bad faith.

     14. INSURANCE—Nickerson v. Stonebridge Life Ins. Co., 63 Cal.4^th 363 (Cal. Supreme Court June 9, 2016)—authored by Justice Kruger; discussed in our June 9, 2016 post: Brandt attorney’s fees to a prevailing party in an insurance bad faith case must be considered in adjudging reasonableness of punitive/compensatory damages ratio.

     13. CLASS ACTION—Lafitte v. Robert Half International, Inc., 1 Cal.5^th 480 (Cal. Supreme Court Aug. 11, 2016)—authored by Justice Werdegar; discussed in our Aug. 15, 2016 post: Trial judges can use the percentage of recovery fee approach for purposes of awarding fess in a common fund class action case, with the trial judge not shackled to using only the lodestar approach in an appropriate case.

     12. SECTION 998—Ignacio v. Caracciolo, 2 Cal.App.5^th 81 (2d Dist., Div. 8 Aug. 3, 2016)—authored by Justice Rubin; discussed in our Aug. 3, 2016 post: Code of Civil Procedure section 998 offer was invalid where offer contained general (rather than lawsuit-specific) claim releases and where Civil Code section 1542 waivers were included, although broad party descriptions did make offer infirm in nature.

     11. ALLOCATION/SUBSTANTIATION OF REASONABLENESS OF FEES—Marriage of Nassimi, 3 Cal.App.5^th 667 (2d Dist., Div. 4 Sept. 26, 2016)—authored by Justice Manella; discussed in our Sept. 27, 2016 post: Requesting party properly denied attorney’s fees where party failed to prove reimbursable fees based on block billing-riddled fee submissions and failed to allocate fees between compensable/non-compensable claims.

     10. BANKRUPTCY—Deocampo v. Potts, 2016 WL 4698299 (9^th Cir. Sept. 8, 2016)—authored by Circuit Judge Wardlaw; discussed in our Sept. 8, 2016 post: City’s Chapter 9 bankruptcy plan did not discharge attorney’s fees award against individual officers in excessive force case, although officers may be entitled to indemnification under California Government Code section 825.

     9. APPEALABILITY—Nellie Gail Ranch Owners v. McMullin, 4 Cal.App.5^th 982 (4^th Dist., Div. 3 Oct. 27, 2016 [certified for publication])—authored by Justice Aronson; discussed in our Oct. 3 and Oct. 30, 2016 posts: Losing homeowner’s failure to separately appeal fee order or amended judgment incorporating fee order meant that appellate court lacked jurisdiction to entertain fee challenge on appeal.

     8. INDEMNITY—Alki Partners, L.P. v. DB Fund Services, LLC, 4 Cal.App.5^th 574 (4^th Dist., Div. 1 Oct. 25, 2016)—authored by Justice Nares; discussed in our Oct. 24, 2016 post: $3,027,237.96 fee award reversed because claimed fees clause was only a third-party indemnification provision not allowing for fees between contractual fee combatants.

     7. INTELLECTUAL PROPERTY—SunEarth, Inc. v. Sun Earth Solar Power Co., 839 F.3d 1179 (9^th Cir. Oct. 24, 2016)—per curiam opinion; discussed in our Oct. 24, 2016 post: Attorney’s fees under Lanham Act’s “exceptional” language guided by same factors articulated in SCOTUS patent Octane Fitness/Highmark duology.

     6. DEADLINES—Robinson v. U-Haul Co. of CA, 4 Cal.App.5^th 304 (lst Dist., Div. 4 Oct. 18, 2016)—authored by Justice Streeter; discussed in our Oct. 19, 2016 post: Trial court’s “good cause” for extending Cal. Rules of Court, rule 3.1702(d) deadlines governing the filing of post-trial/post-appeal fee motions is not constrained by California Code of Civil Procedure section 473 “mistake/inadvertence/surprise/neglect” standards.

     5. FEE CLAUSE INTERPRETATION/SECTION 1717—GoTek Energy, Inc. v. SoCal IP Law Group, LLP, 3 Cal.App.5^th 1240 (2d Dist., Div. 6 Oct. 12, 2016)—authored by Justice Yegan; discussed in our Oct. 14, 2016 post: Law firm’s fees for defensing malpractice action were recoverable based on broad contractual fees clause and pursuant to Civil Code section 1717 given that a malpractice actions sounds in both contract and tort.

     4. SECTION 998—Markow v. Rosner, 3 Cal.App.5^th 1027 (2d Dist., Div. 1 Oct. 4, 2016)—authored by Justice Lui; discussed in our Oct. 14, 2016 post: Joint Code of Civil Procedure section 998 offer to medical malpractice plaintiff husband and loss-of-consortium plaintiff wife was valid given that wife’s damages were capped as a matter of law; section 998 offer provision requiring verification of insurance limits was a proper requirement for a 998 offer.

     3. INTERPLEADER/LIEN FOR ATTORNEY FEES—Southern California Gas Co. v. Flannery, 5 Cal.App.5^th 476 (2d Dist., Div. 6 Nov. 14, 2016)—authored by Justice Kriegler; discussed in our Nov. 14, 2016 post: Interpleader fee-shifting statute (CCP § 386.6(a)) encompasses post-discharge work to sustain the discharge result (including appellate fees), and interpleader action was separate action for purposes of adjudicating an attorney’s lien dispute.

     2. FAMILY LAW—Marriage of Sagonowsky & Kekoa, Case Nos. A142866/A143234 (lst Dist., Div. 5 Dec. 21, 2016)—authored by Presiding Justice Jones; discussed in our Dec. 22, 2016 post: Family Code section 271 sanctions are not properly awardable unless clearly tethered to “attorney’s fees and costs” as per the statutory language.

     1. SUBSTANTIATION OF REASONABLENESS OF FEES—L.A. County Bd. of Supervisors v. Superior Court, Case No. S226645 (Cal. Supreme Court Dec. 29, 2016)—4-3 decision, majority opinion by Justice Cuellar and dissent by Justice Werdegar; discussed in our Dec. 29, 2016 post: Attorney-client privilege does not categorically shield from California Public Records Act disclosure billing invoices sent by clients in concluded, non-active cases because legal consultation was not the purpose of the invoices; however, the privilege did protect billing invoice entries in active, pending cases. Case may have implications as far as the type of information, redacted or not, filed in support of fee submissions in both state and California federal courts.

Year End Wrap-Up: Mike and Marc’s Top 30 Decisions In 2016

 

Part 1 of 2—2016 Was A Prolific Year For Fees/Costs Decisions.

    As we have done in past years, wishing all readers the happiest of Holidays, we now present our top 30 published decisions from California appellate courts, the United States Supreme Court (SCOTUS), and the Ninth Circuit for the 2016 year.  For past years, we have done a “Top 20,” but this year was especially prolific for decisions involving attorney’s fees/costs issues.  This list is not meant to slight other important decisions in certain areas, but these are the ones that “rose to the top” from our perspective. We will post 15 today and 15 in an ensuing post after we let the year run down.  The number of ranking is not geared at all to the decision’s relative importance, and we do not mean to overlook other published decisions—not to mention the wealth of unpublished decisions on fees/costs issues. Here we go on the first 15, with some of them pending issuance of a decision, after a grant of review, by the California Supreme Court.

    30.  ARBITRATION/ETHICS--Sheppard, Mullin v. J-M Mfg. Co., 244 Cal.App.4th 590 (2d Dist., Div. 4 Jan. 29, 2016), rev. granted, S232946 (Cal. Supreme Ct. Apr. 27, 2016)—authored by Justice Collins; discussed in our Jan. 30, 2016 post:  Attorneys having “simultaneous representation” conflict of interest presented a situation rendering an arbitration award to attorneys illegal in nature.  The issues presented for review by the California Supreme Court are framed this way:  “(1) May a court rely on non-legislative expressions of public policy to overturn an arbitration award on illegality grounds? (2) Can a sophisticated consumer of legal services, represented by counsel, give its informed consent to an advance waiver of conflicts of interest? (3) Does a conflict of interest that undisputedly caused no damage to the client and did not affect the value or quality of an attorney’s work automatically (i) require the attorney to disgorge all previously paid fees, and (ii) preclude the attorney from recovering the reasonable value of the unpaid work?”

    29.  EMPLOYMENT--USS-Posco Industries v. Case, 244 Cal.App.4th 197 (1st Dist., Div. 1 Jan. 26, 2016)—authored by Justice Banke; discussed in our Jan. 30, 2016 post:  Amended Labor Code section 218.5, which only allows fees to prevailing employer showing a wage action was brought in bad faith, applied to subsequent, post-judgment fee motion against non-prevailing plaintiff even though a broader, more liberal fee shifting statute applied at the time of judgment.

    28.  PRIVATE ATTORNEY GENERAL-San Diego Municipal Employees Assn. v. City of San Diego, 244 Cal.App.4th 906 (4th Dist., Div. 1 Feb. 9, 2016)—authored by Judge Prager (sitting as a pro tem justice); discussed in our Feb. 10, 2016 post:  Intervenors whose work was secondary to main work by other parties were not entitled to fee recovery under California Code of Civil Procedure section 1021.5’s (private attorney general statute’s) “necessity” element.

    27.  BANKRUPTCY--Bos v. Board of Trustees, 818 F.3d 486 (9th Cir. Mar. 24, 2016)—joint opinion by Circuit Judges O’Scannlain and Ikuta as well as District Judge Burns (sitting by assignment); discussed in our Mar. 28, 2016 post:  Prevailing party in bankruptcy non-dischargeability action is not entitled to recover fees under either California Civil Code section 1717 or ERISA’s fee shifting provision.

    26.  APPEALABILITY/CLASS ACTION--Hernandez v. Muller (Restoration Hardware, Inc.), 245 Cal.App.4th 651 (4th Dist., Div. 1 Mar. 14, 2016), rev. granted, S233983  (Cal. Supreme Ct. June 22, 2016)—authored by Justice McDonald; discussed in our Mar. 19, 2016 post:  Objecting class members have no standing to appeal an attorney’s fees award unless the unnamed class members intervene in the case.  The issue presented for California Supreme Court review is:  “Must an unnamed class member intervene in the litigation in order to have standing to appeal?  (See Eggert v. Pac. States S. & L. Co. (1942) 20 Cal.2d 199.)”

    25.  COSTS/PREVAILING PARTY/SETTLEMENT--DeSaulles v. Community Hospital of the Monterey Peninsula, 62 Cal.4th 1140 (Cal. Supreme Ct. Mar. 10, 2016)—authored by Justice Liu; discussed in our Mar. 19, 2016 post:  Voluntarily dismissing plaintiff who received settlement money from a defendant was the prevailing party for purposes of a Code of Civil Procedure section 1032(a)(4) routine costs award unless the parties provided otherwise in the settlement agreement.

    24.  SECTION 998--Toste v. CalPortland Construction, 245 Cal.App.4th 362 (2d Dist., Div. 6 Mar. 2, 2016)—authored by Justice Yegan; discussed in our Mar. 5, 2016 post:  2015 amendment to Code of Civil Procedure section 998, which specified that rejecting plaintiff is only exposed to post-offer expert witness costs, applied to cases pending on appeal which challenged a section 998 award, likely requiring remands.

    23.  REASONABLENESS OF FEES/STANDARD OF REVIEW--Mountjoy v. Bank of America, N.A., 245 Cal.App.4th 266 (3d Dist. Feb. 29, 2016)—authored by Acting Presiding Justice Robie; discussed in our Mar. 1, 2016 post:  70% across-the-board fee reduction by trial judge from fee request reversed because such a broad brush decrease required a more nuanced approach and more specific explanation of the reduction; trial judge allowed to “cross check” reasonableness of prevailing party’s fee request based on the fees expended by the opposing party in proper situations.

    22.  CLASS ACTION/SUBSTANTIATION OF REASONABLENESS OF FEES—Yamada v. Nobel Biocare Holding AG, 821 F.3d 1058 (9th Cir. Apr. 20, 2016)—authored by District Judge Marbley (sitting by assignment); discussed in our Apr. 21, 2016 post:  Defense had the right to review time sheets submitted in camera to court in class action fee proceeding, even though privileged information could be redacted in the fee submission to the district judge by class counsel.

    21.  COSTS—Charton v. Harkey, 247 Cal.App.4th 730 (4th Dist., Div. 3 May 24, 2016)—authored by Justice Aronson; discussed in our May 24, 2016 post:  “Unity in interest” exception allowing trial courts discretion to deny routine costs to prevailing defendant when several non-prevailing co-defendants are unified in interest was no longer viable after a legislative repeal of former Code of Civil Procedure section 1032;  75% mathematical reduction in routine costs request based on number of total defendants was improperly overbroad methodology to utilize in the matter.

    20.  PROBATE—Conservatorship of Bower, 247 Cal.App.4th 495 (4th Dist., Div. 3 cert. for publication May 16, 2016)—authored by Justice Bedsworth; discussed in our April 16, 2016 post prior to publication:  Probate Code section 1089 did not allow probate judge to divide community property to pay for conservatorship fees, with any award guided instead by Probate Code sections 2640 and 2647.

    19.  EMPLOYMENT (PUBLIC)—Daza v. L.A. Community College, 247 Cal.App.4th 260 (2d Dist., Div. 8 May 6, 2016)—authored by Justice Flier; discussed in our May 8, 2016 post:  Public employees seeking costs of defense under Government Code section 996.4 must be allowed to present proof outside the mere pleadings to rebut employer’s “outside the scope of employment” defense to reimbursing employee’s defensively-incurred attorney’s fees.

    18.  LANDLORD/TENANT and LIENS FOR ATTORNEYS FEES—Crasnick v. Marque & Diaz, 248 Cal.App.4th Supp. 1 (L.A. Superior Ct. Appellate Div. May 24, 2016)—authored by Judge Ricciardulli; discussed in our June 5 and June 24, 2016 posts:  Tenants’ fee award subject to contractual attorney’s lien was properly not offset by landlord’s subsequent judgments against tenants in other matters.

    17.  PROBATE—Butler v. LeBouef, 248 Cal.App.4th 198 (2d Dist., Div. 6 June 20, 2016)—authored by Justice Yegan; discussed in our June 21, 2016 post:  Attorney drafter of will/living trust is liable for attorney’s fees incurred by beneficiaries under Probate Code section 21380(d); beneficiaries won $1,256,971 in fees against drafter attorney.

    16.  INTELLECTUAL PROPERTY—Kirtsaeng dba Blue Christine99 v. John Wiley & Son, 579 U.S. __, 136 S. Ct. 1538, 2016 WL 3317564 (U.S. June 16, 2016)—authored by Justice Kegan; discussed in our June 16, 2016 post:  SCOTUS clarifies factors to be weighed for purposes of awarding discretionary fees to prevailing party under Copyright Act’s fee shifting provision (17 U.S.C. § 505).

Year End Wrap-Up: Mike And Marc’s Top 20 Attorney’s Fees Decisions in 2015—Part 1 of 2.

 

     As we have done in past years, wishing all readers the happiest of Holidays, we now present our top 20 published decisions from California appellate courts or the Ninth Circuit for the 2015 year. This list is not meant to slight other important decisions in certain areas, but these are the ones that “rose to the top” from our perspective. We will post 10 today and 10 in an ensuing post. The number of ranking is not geared at all to the decision’s relative importance, and we do not mean to slight other published decisions—not to mention the wealth of unpublished decisions on fees/costs issues. However, we also will be doing a separate 2015 year-end post which lists those cases pending in the California Supreme Court which happen to involve attorney’s fees or costs issues.

20. Gray1 CPB, LLC v. SCC Acquisitions, Inc., 233 Cal.App.4^th 882 (4^th Dist., Div. 3 Jan. 27, 2015)—authored by Justice Moore; discussed in our Jan. 28, 2015 post: Judgment creditor is precluded from seeking post-judgment enforcement fees under CCP § 685.080 after accepting cashier’s check from judgment debtor.

19. Tract 19051 Homeowners Assn. v. Kemp, 60 Cal.4^th 1135 (Cal. Supreme Court March 5, 2015)—authored by Chief Justice Cantil-Sakauye; discussed in our Mar. 7, 2015 post: Homeowner defeating homeowner association based on HOA not being a common interest development with valid governing documents was entitled to attorney’s fees recovery under Civil Code § 5975(c) (formerly § 1354(c)), reversing an intermediate appellate court decision which refused fee recovery to prevailing homeowner.

18. People ex rel. CalTrans v. Hansen’s Truck Stop, Inc., 236 Cal.App.4^th 178 (1^st Dist., Div. 4 April 24, 2015)—authored by Justice Rivera; discussed in our Apr. 25, 2015 post:

Property owner condemnee is entitled to litigation expenses from condemnor in eminent domain case even though issues were bifurcated/procedurally sliced up, with demand/offer responses subject to recalibration based on a continued trial date.

17. Ryan v. Editions Limited West, Inc., 786 F.3d 754 (9^th Cir. May 19, 2015)—authored by Circuit Judge Hawkins; discussed in our May 23, 2015 post: Copyright Act of 1976 does not expressly or impliedly preempt enforcement of a broadly worded contractual attorney’s fees clause in the context of a contributory copyright infringement case.

16. Lee v. Silveira, 236 Cal.App.4^th 208 (5^th Dist. May 15, 2015)—authored by Justice Franson; discussed in our May 16, 2015 post: Damages not allowable by law are excluded for purposes of determining if defendant prevailed under a CCP § 998 offer.

15. Williams v. Chino Valley Independent Fire Dist., 61 Cal.4^th 97 (Cal. Supreme Court May 4, 2015)—authored by Justice Werdegar; discussed in our May 4, 2015 post: Losing FEHA plaintiff is not subject to routine costs exposure unless losing plaintiff brought or prosecuted a frivolous, unreasonable, meritless, or vexatious case against prevailing defendant.

14. Monterossa v. Superior Court, 237 Cal.App.4^th 747 (3d Dist. June 12, 2015)—authored by Acting Presiding Justice Butz; discussed in our June 14, 2015 post: Borrower winning preliminary injunction against lender for “dual tracking” violation is entitled to fee recovery.

13. Royal Practice Funding Corp. v. Arneson, 239 Cal.App.4^th 1275 (4^th Dist., Div. 3 July 28, 2015)—authored by Justice Bedsworth; discussed in our July 30, 2015 post: Ex-employer’s withdrawal of a superior court petition respecting an ex-employee’s Labor Commissioner wage claim gives rise to fee recovery under Labor Code § 98.2.

12. First Intercontinental Bank v. Ahn, 798 F.3d 1149 (9^th Cir. Aug. 18, 2015)—authored by Circuit Judge M.D. Smith; discussed in our Aug. 18, 2015 post: California Civil Code § 1717 policy trumps a foreign choice-of-law clause for fee recovery purposes, accepting ABF Capital/Grove Properties over ABF Capital/Berglass approaches by California’s intermediate appellate courts.

11. Kahn v. The Dewey Group, 240 Cal.App.4^th 227 (2d Dist., Div. 3 Sept. 8, 2015)—authored by Presiding Justice Edmon; discussed in our Sept. 9, 2015 post: Electronic service of notice of judgment entry extends time to file costs memorandum and “comparison” approach is utilized to make multiple defendants await an ultimate judgment for purposes of determining whether they prevailed under a joint CCP § 998 offer.

     Part 2 of 2 will be coming before year’s end, along with the list of pending California Supreme Court cases in the areas we blog on. Again, enjoy this time of the year!

Year End Wrap-Up: Mike And Marc’s Top 20 Attorney’s Fees Decisions in 2015—Part 2 of 2.

 

Here is the remainder of our top 20 decisions for 2015. Look for an upcoming post on 2015 Cases Pending For Review.

10. Novak v. Dana Tietler Trust/Kay, 236 Cal.App.4^th 329 (2d Dist., Div. 5 April 28, 2015)—authored by Presiding Justice Turner; discussed in our Apr. 30, 2015 post: Attorney with broad contractual attorney’s lien language in retainer agreement with deceased client, a pretermitted spouse with an interest in a separate trust with assets, is entitled to enforce lien without filing creditor’s claim or without instituting Probate Code section 9391 action to foreclose the lien.

9. James L. Harris Printing & Decorating, Inc. v. West Bay Builders, Inc., 239 Cal.App.4^th 1214 (3d Dist. Aug. 27, 2015)—authored by Justice Hoch; discussed in our Aug. 30, 2015 post: Lower court has discretion to determine if either side was a prevailing party for purposes of California’s construction prompt payment statutes.

8. Kaass Law v. Wells Fargo Bank, N.A., 799 F.3d 1290 (9^th Cir. Aug. 27, 2015)—authored by Circuit Judge M.D. Smith; discussed in our Aug. 27, 2015 post: 28 U.S.C. § 1927 sanctions cannot be imposed broadly against law firms, but can only be imposed against individual transgressing attorneys.

7. Summit Media LLC v. City of Los Angeles, 240 Cal.App.4^th 171 (2d Dist., Div. 8 Sept. 8, 2015)—authored by Justice Grimes; discussed in our Sept. 9, 2015 post: California’s settlement privilege did not bar admission of settlement offer by plaintiff to assess financial interest factor of CCP § 1021.5, California’s private attorney general statute.

6. Dorsey v. Superior Court, 241 Cal.App.4^th 583 (4^th Dist., Div. 1 Oct. 22, 2015)—authored by Acting Presiding Justice Nares; discussed in our Oct. 25, 2015 post: CCP § 116.780(c) does cap attorney’s fees for winning small claims plaintiff at $150, trumping a broader contractual fees clause arguably allowing for a larger recovery.

5. Sharif v. Mehusa, Inc., 241 Cal.App.4^th 185 (2d Dist., Div. 5 Oct. 14, 2015)—authored by Justice Mosk; discussed in our Oct. 14, 2015 post: “Dueling” fee-shifting statutes can be offset against each other as far as fee award to different prevailing parties on individual claims, and defense is entitled to cost recovery under Labor Code § 218.5 without being subject to additional cost recovery limitations.

4. 511 S. Park View, Inc. v. Tsantis, 240 Cal.App.4^th Supp. 44 (L.A. Superior Court App. Div. Oct. 5, 2015)—authored by Judge Ricciardulli; discussed in our Oct. 10, 2015 post: Contractual cap of $750 for fee recovery, contained in a written fees clause, is valid and does not contravene the policies of Civil Code § 1717.

3. Roos v. Honeywell International and Rogers, 241 Cal.App.4^th 1472 (1^st Dist., Div. 1 Nov. 11, 2015)—authored by Presiding Justice Humes; discussed in our Nov. 13, 2015 post: 37.5% common fund fee award was justified based on capped percentage-of-recovery standard in class action case, given that the fee award was appropriate when cross-checked by lodestar analysis showing a lower recovery.

2. U.S.A. v. $28,000.00 in U.S. Currency (Moser), 802 F.3d 1100 (9^th Cir. Oct. 6, 2015)

--authored by Circuit Judge Hurwitz [majority decision] and concurring opinion by Circuit Judge Reinhardt; discussed in our Oct. 10, 2015 post: District court in Civil Asset Forfeiture Reform Act case which substantially reduced fee request was reversed based upon its reliance on inapt practice area hourly rates, upon its discounts for plaintiff’s attorneys not delegating tasks to associates given that only small firms prosecuted these type of cases, and upon its use of stale prior fee awards involving fee claimant’s attorneys.

1. Kerkeles v. City of San Jose, 2015 Cal. App. LEXIS 1132 (6^th Dist. Dec. 18, 2015)—authored by Justice Elia; discussed in our Dec. 20, 2015 post: 80% reduced civil rights fee award under 42 U.S.C. § 1988 reversed because trial court did not adequate justify the substantial reduction in its fee award order, relying on Ninth Circuit decisions in reversing fee award and mandating a more reasoned explanation of substantial “haircuts.”

2014 Year In Review: NALFA Posts Its Top Fee Decisions From Around The U.S.

 

Four Make The Grade.

     Our friends at the National Association of Legal Fee Analysis (NALFA) have posted their top four significant decisions for 2014.

     Here they are:

     1. Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749 (2014) and Hallmark, Inc. v. Allcare Health Mgmt. Sys., Inc., 134 S. Ct. 1744 (2014) are two companion rulings by the U.S. Supreme Court regarding patent litigation fee-shifting. Section 285 of the Patent Act authorizes a district court to award attorney's fees in patent litigation in "exceptional cases" – that is, cases which stand out from the others with respect to the substantive strength of a party’s litigating position or the unreasonable manner in which the case was litigated. In Octane Fitness, the U.S. Supreme Court decided that district courts should determine whether a case is exceptional “in the case-by-case exercise of their discretion, considering the totality of the circumstances.” In line with this decision, Hallmark decided that Section 285 fee awards were to be reviewed under the abuse-of-discretion standard. [Discussed in our May 8, 2014 post.]

     2. ATP Tour Inc. v. Deutscher Tennis Bund, 91 A.3d 554 (Del. 2014) is a decision in which the Delaware Supreme Court held that a by-law shifting attorney fees and expenses to the losing party in an intra-corporate litigation can be valid and enforceable under Delaware law.  The Delaware Legislature has pushed off consideration of whether to abrogate or modify this result until sometime in 2015. [Discussed in our May 31, 2014 post.]

     3. Baker Botts LLP v. ASARCO LLC, 751 F.3d 291 (5^th Cir. 2014), cert. granted, No. 14-103, before the U.S. Supreme Court, centers upon the issue of whether Section 330(a) of the Bankruptcy Code grants bankruptcy judges discretion to award compensation for the defense of a fee application (i.e., fees for fees). The Fifth Circuit said “no,” even though other courts have said “yes.” [Discussed in our Oct. 2, 2014 post.]

     4. Holland v. Jachmann, 9 N.E.3d 340 (Mass.App. 2014) is a situation where a Massachusetts appellate court held that trial judges have discretion to award attorney fees for work performed by in-house counsel for claims brought under the state’s unfair trade practices law.  The court held that in-house fees were just as “incurred” as fees paid/owed by a company to outside counsel. [Discussed in our June 12, 2014 post, indicating California’s position on the subject.]

Year In Review 2014—Part 2.

 

Yearly Roundup: Mike & Marc’s Top 20 Fees/Costs Decisions In 2014.

     Here are the final 10 decisions to round out our top California fees/costs decisions for 2014.

     10. Settle v. State of California, 228 Cal.App.4^th 215 (July 23, 2014) [2d Dist., Div. 6; authored by Yegan, J.] and Suarez v. City of Corona, 229 Cal.App.4^th 325 (Aug. 29, 2014) [4^th Dist., Div. 1; authored by McIntyre, following the result/reasoning in Settle]: Mandatory award of attorney’s fees under Code of Civil Procedure section 1038 cannot be made against a party’s counsel, with Code of Civil Procedure section 128.7 being the proper mechanism to use in seeking sanctions against a party’s counsel. [Settle discussed in our July 24, 2014 post; Suarez discussed in our August 29, 2014 post.]

     9. Conservatorship of McQueen, 59 Cal.4^th 602 (July 7, 2014) [California Supreme Court; authored by Werdegar, J.]: Elder abuse appellate, post-judgment fee requests are not governed by Code of Civil Procedure section 685.080 judgment satisfaction deadline, but instead governed by normal California Rules of Court, while post-judgment fee requests on fraudulent transfer claim are governed by section 685.080 deadline. [Discussed in our July 11, 2014 post.]

     8. Kaufman v. Diskeeper Corp., 229 Cal.App.4^th 1 (Aug. 21, 2014) [2d Dist., Div. 4; authored by Manella, J.]: Party seeking recovery of Civil Code section 1717 fees does not need to file costs memorandum in addition to noticed motion for purposes of obtaining potential recovery. [Discussed in our Aug. 21, 2014 post.]

     7. In re Schwartz-Tallard, 765 F.3d 1096 (9^th Cir. Aug. 29, 2014, reissued opinion) [9^th Cir.; majority opinion authored by Huck, Circuit Judge and dissenting opinion authored by Wallace, Circuit Judge], order granting en banc hearing (9^th Cir. Dec. 19, 2014): Chapter 13 bankrupt debtor’s attorney’s fees incurred in the successful appellate defense of a bankruptcy court’s determination that a creditor violated the automatic stay were actual damages entitled to compensation under 11 U.S.C. § 362(k)(1); dissent found fees were not recoverable under past Sternberg v. Johnston, 596 F.3d 937 (9^th Cir. 2010) precedent. [Discussed in our April 17, 2014 and Aug. 29, 2014 posts.]

     6. Coalition for Adequate Review v. City and County of San Francisco, 229 Cal.App.4^th 1043 (Sept. 15, 2014) [1^st Dist., Div. 1; authored by Banke, J.]: Prevailing public agency can recover supplemental CEQA record preparation costs in administrative mandamus proceeding. [Discussed in our Sept. 17, 2014 post.]

     5. Indio Police Command Unit Assn. v. City of Indio, 230 Cal.App.4^th 521 (Sept. 15, 2014) [4^th Dist., Div. 3; authored by O’Leary, P.J.]: Code of Civil Procedure section 1021.5 private attorney general fee recovery can be obtained by a union under the right substantive showing, especially on the financial benefit element. [Discussed in our Sept. 17, 2014 post.]

     4. CB Richard Ellis, Inc. v. Terra Nostra Consultants, 230 Cal.App.4^th 405 (Oct. 7, 2014) [4^th Dist., Div. 3; authored by Ikola, J.]: Fee clause allowed prevailing party to recover fees from non-prevailing LLC members receiving wrongful distributions in de facto dissolution factual setting. [Discussed in our Oct. 9, 2014 post.]

     3. Mountain Air Enterprises, LLC v. Sundowner Towers, LLC, 2014 WL 6488418 (Nov. 20, 2014) [1^st Dist., Div. 2; majority opinion by Stewart, J. and dissenting opinion by Richman, J.]: “Action” language in fees clause was interpreted broadly to allow recovery of fees for successful novation defense, agreeing with Windsor and dissenting opinion in Gil. [Discussed in our Nov. 21, 2014 post.]

     2. David S. Karton, A Law Corporation v. Dougherty, 180 Cal.Rptr.3d 55 (Nov. 14, 2014) [2d Dist., Div. 1; authored by Rothschild, J.]: Client prevailing under routine costs statute entitled to mandatory award, disagreeing with Sears v. Baccaglio that costs decision is a discretionary one for lower court where mandatory entitlement basis exists. [Discussed in our Nov. 15, 2014 post.]

     1. Safari Associates v. Superior Court, 2014 WL 6778396 (Dec. 2, 2014) [4^th Dist., Div. 1; authored by Aaron, J.]: Arbitrator’s decision to apply Civil Code section 1717 “prevailing party” definition rather than narrower fees clause definition to fee entitlement issue during arbitration should not have been corrected by superior court in post-arbitration proceedings. [Discussed in our Dec. 2, 2014 post; also discussed in Dec. 2, 2014 post on Marc Alexander’s Cal. Mediation and Arbitration blog.]

Year In Review 2014—Part 1.

 

Yearly Roundup: Mike & Marc’s Top 20 Fees/Costs Decisions In 2014.

     It’s that time of year for our top 20 fees/costs decisions for 2014, focusing on published California appellate or Ninth Circuit decisions. We will note that some of these same have been accepted for state supreme court review/transferred back to a DCA or been ordered for en banc hearing in one Ninth Circuit case. The order of presentation should not be interpreted as ranking the importance of any decisions, and we made subjective decisions on those opinions that piqued our interest without regard to the substantive area of the law at issue. Also, in a couple of situations, we lump two decisions coming to the same conclusion on an issue. With that, here we go and Happy Holidays to all of our readers.

     20. Tourgeman v. Nelson & Kennard, 222 Cal.App.4^th 1447 (Jan. 16, 2014) [4^th Dist., Div. 1; authored by Aaron, J.]: No SLAPP fee recovery for the defense where action voluntarily dismissed because no mini-merits determination was made as to whether the defense would have actually prevailed, disagreeing with cases allowing fee recovery based on defense obtaining litigation objectives through the dismissal. [Discussed in our Jan. 18, 2014 post.]

     19. Robert v. Stanford University, 224 Cal.App.4^th 67 (Feb. 25, 2014) [6^th Dist.; authored by Mihara, J.]: Lack of Rosenman v. Christensen, Miller etc., 91 Cal.App.4^th 859 (2001) written findings about frivolousness of civil rights suit for fee recovery purposes by the defense does not automatically require reversal where oral findings provided sufficient record for fee recovery. [Discussed in our Feb. 26, 2014 post.]

     18. Soni v. Wellmike Enterprise Co. Ltd., 224 Cal.App.4^th 1477 (Mar. 26, 2014) [2d Dist., Div. 3; authored by Klein, P.J.]: Trope prohibition prevented law firm collecting “fees on fees” as winner in fee collection case where law firm used associates/employees in firm’s representation in the underlying fee collection trial. [Discussed in our Mar. 26, 2014 post.]

     17. Carter v. Caleb Brett LLC, 757 F.3d 866 (9^th Cir. Mar. 10, 2014) [9^th Cir.; authored by Alarcon, Cir. Judge]: District court must “show its math” in making substantial fee reductions, reversing 37% “haircut” in fee request where lack of specificity pervaded fee order. [Discussed in our Mar. 11, 2014 post.]

     16. DKN Holdings, LLC v. Faerler, 225 Cal.App.4^th 1115 (Apr. 9, 2014) [4^th Dist., Div. 2; authored by King, J.], rev. granted on other issues, and Syers Properties III, Inc. v. Rankin, 226 Cal.App.4^th 69 (May 5, 2014) [1^st Dist., Div. 2; authored by Kline, P.J.]: Lower court has discretion in determining whether to use U.S. Attorney’s Office’s Laffey Matrix when determining the lodestar hourly rate, regionally adjusted or otherwise. [DKN discussed in our Apr. 9, 2014 post; Syers Properties discussed in our May 6, 2014 post.]

     15. Gray1 CPB, LLC v. SCC Acquisitions, Inc., 225 Cal.App.4^th 410 (Apr. 9, 2014) [4^th Dist., Div. 3; authored by Moore, J.], rev. granted but matter later transferred back to DCA to consider matter in light of Conservatorship of McQueen, discussed in Part 2 of our 2014 Review: Judgment creditor’s acceptance/negotiation of cashier’s check constituted judgment satisfaction, cutting off claim for substantial post-judgment fee recovery. [Discussed in our Apr. 9, 2014 post; BLOG NOTE—supplemental briefing has been completed in the 4/3 DCA, with a submission order filed on Nov. 24, 2014 and with a Feb. 23, 2015 deadline to file a new opinion.]

     14. S.L. v. Upland Unified School Dist., 747 F.3d 1155 (9^th Cir. Apr. 2, 2014) [9^th Cir.; authored by Christen, Cir. Judge]: District court’s written order on a fee motion triggers 30-day appeals period, with no need for a separate judgment to trigger the running of the 30-day period. [Discussed in our Apr. 2, 2014 post.]

     13. deSaulles v. Community Hospital of the Monterey Peninsula, 225 Cal.App.4^th 1427 (May 2, 2014) [6^th Dist.; authored by Grover, J.], rev. granted – No. S219236: Positive settlement recovery can qualify as a “net monetary recovery” for purposes of routine cost recovery where the settlement agreement was silent in dealing with costs issues. [Discussed in our May 4, 2014 post; BLOG NOTE—Here is how the California Supreme Court has framed the issue: “When plaintiff dismissed her action in exchange for the defendant’s payment of a monetary settlement, was she the prevailing party for purposes of an award of costs under Code of Civil Procedure section 1032, subdivision (a)(4), because she was ‘the party with a net monetary recovery,’ or was defendant the prevailing party because it was ‘a defendant in whose favor a dismissal is entered’?”].

     12. Mega RV Corp. v. HWH Corp., 225 Cal.App.4^th 1318 (Apr. 30, 2014) [4^th Dist., Div. 3; authored by Ikola, J.]: No “tort of another” fee recovery allowable where case had no underlying tort, siding with Sooy and disagreeing with majority decision in Manning and containing a footnote indicating the “tort of another” doctrine not relevant in most physical injury or property damages cases. [Discussed in our May 1, 2014 and May 21, 2014 posts.]

     11. Naser v. Lakeridge Athletic Club, 227 Cal.App.4^th 571 (June 27, 2014) [1^st Dist., Div. 5; authored by Bruiniers, J.]: Service and processing costs for business records subpoena, even if no deposition taken pursuant to the subpoena, are recoverable routine costs. [Discussed in our June 29, 2014 post.]

Year in Review 2013 – Part II

 

Yearly Roundup: Mike and Marc’s Top-20 Plus Decisions in 2013

Roundup for tourists.  Fort Worth, Texas.  Carol M. Highsmith Collection.  Library of Congress. 2012.  Library of Congress.

Part 2 of 2 – M & M’s Top 2013 Fee/Costs Decisions.

     Here is the remainder of our top 2013 fee/costs decisions. However, if something comes out in the next few days before we all ring in the New Year, we will post a Part 2.A to our top list.

     10. Mon Chong Loong Trading Corp. v. Superior Court, 218 Cal.App.4^th 87 (July 23, 2013) [2d Dist., Div. 3; authored by Croskey, J.]: Voluntary dismissal without prejudice confers discretion on trial court to shift expert witness fees to dismissing party. [Discussed in our July 24, 2013 post.]

     9. Ellis v. Toshiba America Information System, Inc., 218 Cal.App.4^th 853 (Aug. 7, 2013) [2d Dist., Div. 1; authored by Johnson, J.]: Legal assistants/paralegals not meeting Business and Professions Code certification requirements can be compensated in fee proceedings. [Discussed in our August 8, 2013 post.]

     8. Swanson v. State Farm Gen. Ins., 219 Cal.App.4^th 1153 (Sept. 23, 2013) [2d Dist., Div. 7; authored by Segal, J., L.A. County Super. Ct. judge sitting by assignment]: An insurer withdrawing all reservations of rights and coverage defenses does not have to continue paying Cumis counsel after the withdrawal decisions are communicated. [Discussed in our September 28, 2013 post.]

     7. Gonzalez v. City of Maywood, 729 F.3d 1086 (9^th Cir. Sept. 9, 2013) [authored by Smith, N. Randy, J.]: Opposing counsel’s hours are useful in determining fee reasonableness; district court must explain fee lodestar request cuts over 10%; judicial intuit alone cannot be used to gauge reasonable hourly rates; previous fee awards and attorney tables of experience did not have to be blindly credited by district judge. [Discussed in our September 15, 2013 post.]

     6. Brown Bark III, L.P. v. Haver, 219 Cal.App.4^th 809 (Sept. 13, 2013) [4^th Dist., Div. 3; authored by Aronson, J.]: Continuation successor liability equitable doctrine winner is entitled to prevailing party fees under Civil Code section 1717 on contractually-based claims, disagreeing with earlier unpublished federal decision to the contrary. [Discussed in our September 2 and September 15, 2013 posts.]

     5. Rouland v. Pacific Specialty Ins. Co., 220 Cal.App.4^th 280 (Oct. 7, 2013) [4^th Dist., Div. 3; authored by Aronson, J.]: No magic “acceptance” language required to make Code of Civil Procedure section 998 offer valid. [Discussed in our October 15, 2013 post.]

     4. Pfeifer v. John Crane, Inc., 220 Cal.App.4^th 1270 (Oct. 29, 2013) [2d Dist., Div. 4; authored by Manella, J.]: Code of Civil Procedure section 998 expert fee ruling must be separately appealed and is not embraced in the prior original judgment. [Discussed in our November 4, 2013 post.]

     3. Campbell v. Astrue, __ F.3d __, Case No. 11-55486 (9^th Cir. Nov. 26, 2013) [Bea & Smith, N. Randy, JJ., majority opinion; Wardlaw, J., dissenting]: 2-1 decision finding government’s position in an earlier reversal of a social security disability denial was substantially justified under the Equal Access to Justice Act fee-shifting provision. Majority and dissenting Circuit Judges disagreed over the application of Meier v. Covin, 727 F.3d 867 (9^th Cir. 2013). [Campbell discussed in our November 26, 2013 post and Meier discussed in our July 23, 2013 post.]

     2. Optimal Markets, Inc. v. Salant, __ Cal.App.4^th __, 2013 WL 6180246 (Case No. H038571 Nov. 26, 2013) [6^th Dist.; authored by Marquez, J.]: Counsel cannot be punished under Code of Civil Procedure section 128.7 applicable to court proceedings when sanctions were based on arbitration activities. [Discussed in our November 29, 2013 post.]

     1. Barry v. State Bar of California, 218 Cal.App.4^th 1435 (Aug. 21, 2013) [2d Dist., Div. 2; authored by Chavez, J., rev. granted, No. S214058 (Cal. Supreme Court Nov. 27, 2013)]: Issue for review is whether the trial court had authority to award mandatory SLAPP fees under the circumstances where a SLAPP grant fee order was reversed by an appellate court on the ground that the trial court lacked subject matter jurisdiction over the dispute. [Discussed in our August 22, 2013 post.]

     For Part 1 of 2 – M & M’s Top 2013 Fee/Costs Decisions, click here.

Year in Review 2013 – Part I

Yearly Roundup: Mike & Marc’s Top 20-Plus Decisions In 2013

Roundup for tourists.  Fort Worth, Texas.  Carol M. Highsmith Collection.  Library of Congress. 2012.  Library of Congress.

Part 1 of 2 – M & M’s Top 2013 Fee/Costs Decisions.

     It is that time of year where we provide our top fee/costs published decisions (with two exceptions, a couple of unpublished state opinions) for the 2013 year. The exceptions relate to two unpublished state appellate cases which have been accepted for review by the California Supreme Court. In fact, a couple of more published decisions in our list also were accepted for review. Nothing should be read from the order of presentation, because we are not ranking in terms of overall importance, simply that they are germane on the interesting issues we posted on during 2013.

     21. Cates v. John Chiang, as State Controller, 213 Cal.App.4^th 791 (Feb. 7, 2013) [4^th Dist., Div. 1; authored by Haller, Acting P.J.]: Reconstructed time in fee submission papers only goes to weight of proof; multipliers rarely deserved for “fees on fees” work. [Discussed in our February 9, 2013 post.]

     20. Lucky Unified Properties Investments, Inc. v. Lee, 213 Cal.App.4^th 635 (Feb. 4, 2013) [1^st Dist., Div. 5; authored by Bruiniers. J.]: Interest runs on post-judgment fees/costs awards from the date fees are fixed. [Discussed in our February 6, 2013 post.]

     19. Windsor Pacific LLC v. Samwood Co., Inc., 213 Cal.App.4^th 263 (Jan. 30, 2013) [2d Dist., Div. 3; authored by Croskey, J.]: Action for Civil Code section 1717 fee recovery purposes encompasses a defense in an answer triggering fee recovery rather than just a complaint. [Discussed in our February 2, 2013 post.]

     18. In re Marriage of Turkanis and Price, 213 Cal.App.4^th 332 (Jan. 30, 2013) [2d Dist., Div. 8; authored by Flier, J.]: Non-encumbering spouse can move to expunge an attorney’s family law attorney’s real property lien and a Borson fee award can be offset for unreasonable litigation conduct. [Discussed in our February 2, 2013 post.]

     17. Radcliffe v. Experian Info. Solutions, 715 F.3d 1173 (9^th Cir. Apr. 22, 2013) [authored by Gould, J.; concurrence by Hadon, J.]: Class representatives’ conflict of interest in getting incentive awards to support settlement has to be weighed in determining class counsel’s fee award. [Discussed in our April 27, 2013 post.]

     16. Conservatorship of McQueen, Case No. A134337 (Feb. 7, 2013 unpublished) [lst Dist., Div. 4; authored by Ruvolo, P.J., rev. granted, No. S209376 (Cal. Supreme Court May 15, 2013)]: DCA reversed motion for post-judgment attorney’s fees and costs. Issue presented for review: Is a trial court award of statutorily-mandated fees and costs incurred on appeal subject to Enforcement of Judgment statutes (Code Civ. Proc., § 685.040 et seq.) if the statute underlying the award is the Elder Abuse Act (Welf. & Inst. Code, § 15200 et seq.). [Discussed in our March 15, 2013 post.]

     15. McDaniel v. Asuncion, 214 Cal.App.4^th 1201 (Mar. 27, 2013) [5^th Dist.; authored by Levy, Acting P.J.]: Joint offer under Code of Civil Procedure section 998 made to multiple plaintiffs by a single defendant was valid. [Discussed in our April 5, 2013 post.]

     14. Khavarian Enterprises, Inc. v. Commline, Inc., 216 Cal.App.4^th 310 (May 14, 2013) [2d Dist., Div. 4; authored by Suzukawa, J.]: Post-dismissal fees/costs proceeding can proceed under settlement agreement assuming fee entitlement can be demonstrated by moving/claiming party. [Discussed in our May 16, 2013 post.]

     13. Tract 19051 Homeowners Assn. v. Kemp, Case No. B235015 (May 15, 2013 unpublished) [2d Dist., Div. 4; authored by Suzukawa, J., rev. granted, No. S211596 (Cal. Supreme Court June 25, 2013)]: Whether an appellate court erred in reversing an award of attorney’s fees to a prevailing homeowner against a homeowners’ association under Civil Code section 1354 because no common interest development interest was involved and there was improper ratification of governing HOA documents. [Discussed in our May 16, 2013 post.]

     12. Martinez v. Brownco Constr. Co., Inc., 56 Cal.4^th 1014 (June 10, 2013) [Cal. Supreme Court; authored by Baxter, J.]: Where a plaintiff serves two Code of Civil Procedure section 998 offers and defendant fails to obtain a judgment more favorable than either offer, recoverability of expert witness fees as costs incurred runs from the date of the first offer, but in the trial court’s discretion to prevent gamesmanship. [Discussed in our June 10, 2013 post.]

     11. Williams v. Chino Valley Independent Fire Dist., 218 Cal.App.4^th 73 (July 23, 2013) [4^th Dist., Div. 2; authored by Richli, J., rev. granted, No. S213545 (Cal. Supreme Court Oct. 30, 2013)]: Routine costs can be assessed against losing civil rights plaintiff without showing plaintiff’s suit was frivolous/unreasonable/groundless in nature. [Discussed in our July 24, 2013 post.]

     For Part 2 of 2 – M & M’s Top 2013 Fee/Costs Decisions, click here.

Year In Review -- Top 25 Fee Decisions For 2012

 

Wrapping It Up: M & M’s Top 2012 Decisions -- Part 2 of 2.

     Wrapping it up.  Museum.  Gizeh, Egypt.  c1908.  Library of Congress.

      It is that time of year, at year end 2012, for us to list our top 25 published attorney’s fees decisions from the U.S. Supreme Court, Ninth Circuit Court of Appeals, and California Courts of Appeal. In Part 1 of 2, we listed the first 13 decisions of interest, although the ranking was not in order of importance given the span of substantive areas involved.

     Now we discuss the second installment, the remaining 12 decisions to round out our Top 25 Decisions for 2012.

     12. Frog Creek Partners, LLC v. Brown, 206 Cal.App.4th 515 (May 24, 2012) [1st Dist., Div. 5]: No Civil Code section 1717 fees should be awarded to a party winning or defeating a motion to compel arbitration in a lawsuit until lawsuit/arbitration determined, but party defeating compel arbitration petition in discrete proceeding alone is generally entitled to 1717 fee recovery. [Discussed in our May 27, 2012 post.]

     11. Sumner Hill Homeowners’ Assn. v. Rio Mesa Holdings, LLC, 205 Cal.App.4th 999 (Apr. 2, 2012) [5th Dist.]: Attorney’s fees expended to clear title are compensable slander of title damages where slander is contained in recorded instrument. [Discussed in our May 3, 2012 post.]

     10. Kirby v. Immoos Fire Protection, Inc., 53 Cal.4th 1244 (Apr. 30, 2012) [Cal. Supreme Court]: Neither Labor Code sections 1194 nor 218.5 authorizes an award of attorney’s fees to a party prevailing on a failure to provide rest/meal breaks under Labor Code section 226.7. [Discussed in our May 1, 2012 post.]

     9. Estate of Wong, 207 Cal.App.4th 366 (June 27, 2012) [1st Dist., Div. 2]: Attorneys seeking payment of ordinary service fees from probate estate not foreclosed from fee recovery by lack of a written retention agreement. [Discussed in our June 28, 2012 post.]

     8. Healdsburg Citizens For Sustainable Solutions v. City of Healdsburg, 206 Cal.App.4th 988 (June 4, 2012) [1st Dist., Div. 4]: Trope v. Katz, 11 Cal.4th 274 (1995) in pro per limitation does not apply to winning attorney/litigant in Code of Civil Procedure section 1021.5 public litigation. [Discussed in our June 5, 2012 post.]

     7. Haynes v. City & County of San Francisco, 688 F.3d 984 (Jul. 23, 2012) [9th Cir.]: Attorney’s ability to pay can be considered by district judge when imposing 28 U.S.C. § 1927 sanctions on an attorney. [Discussed in our July 25, 2012 post.]

     6. Jankey v. Lee, No. S180890 (Dec. 17, 2012) [Cal. Supreme Court]: Unruh Act’s Civil Code section 55 fee-shifting provision is bilateral and not preempted by the American with Disabilities Act (ADA), disagreeing with Hubbard v. SoBreck, LLC, 554 F.3d 742 (9th Cir. 2009). [Discussed in our Dec. 17, 2012 post.]

     5. Kandy Kiss v. Calif., Inc. v. Tex-Ellent, Inc., 209 Cal.App.4th 604 (Sept. 21, 2012) [2d Dist., Div. 8]: Defendant in state court obtaining dismissal of action based on exclusivity of federal jurisdiction entitled to Civil Code section 1717 prevailing party fees. [Discussed in our Sept. 22, 2012 post.]

     4. Rony v. Costa, 210 Cal.App.4th 746 (Oct. 26, 2012) [1st Dist., Div. 1]: Landowner using unlicensed contractors to cut neighbors’ trees not vicariously liable for fee exposure under Code of Civil Procedure section 1029.8. [Discussed in our Oct. 27, 2012 post.]

     3. Sands & Associates v. Juknavorian, 209 Cal.App.4th 1269 (Oct. 10, 2012) [2d Dist., Div. 1]: Firm represented by “of counsel” in a fee dispute cannot recovery attorney’s fees as the prevailing party under the Trope prohibition. [Discussed in our Oct. 10, 2012 post.]

     2. Mount Hope Church v. Bash Back!, No. 11-35632 (Nov. 26, 2012) [9th Cir.]: Fees and costs awarded to third party responding to supoena under Federal Rules of Civil Procedure, rule 45(c)(1) were reversed because no “undue burden and expense” where costs of compliance were minimal and subpoena not issue in bad faith/not facially defective. [Discussed in our Nov. 27, 2012 post.]

     1. Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc., 211 Cal.App.4th 230 (Nov. 20, 2012) [4th Dist., Div. 1]: Victory on promissory estoppel theory was not “on the contract” for purposes of Civil Code section 1717 fee recovery. [Discussed in our Nov. 21, 2012.]

     Although we will finish up posts on any tail-end 2012 decisions in the next week, we wish you all a prosperous 2013, reminding everyone in the words of Jonathan Swift: “Every dog must have his day.”

 

Year In Review -- Top 25 Fee Decisions For 2012

 

Wrapping It Up: M & M’s Top 2012 Decisions -- Part 1 of 2.

     It is that time of year, at year end 2012, for us to list our top 25 published attorney’s fees decisions from the U.S. Supreme Court, Ninth Circuit Court of Appeals, and California Courts of Appeal.

     We might note that 2012 looms as an important year for the California Supreme Court to decide an important multiple offers issue arising under California Code of Civil Procedure section 998. The case pending for review, with no oral argument yet scheduled, is Martinez v. Brownco Construction Co., Inc., which we will discuss below.

     We opt to report and score on the top 25, keeping in mind that appellate jurists did decide many other important cases (both in published and unpublished dispositions). These are our favorites in a wide range of areas, so enjoy. This will be the first 13 cases, with 12 more to follow in a subsequent post--likely closer to year’s end. (The numbering of these cases is random, so no attempt is made to score their importance given that they arise out of many different substantive practice areas.)

     25. Lin v. Jeng, 203 Cal.App.4th 1008 (Feb. 23, 2012) [2d Dist., Div. 4]: Trial court’s discretion to equitably apportion fees in partition actions is broad, disagreeing with limitations set on such discretion in Finney v. Gomez, 111 Cal.App.4th 527, 545-546 (2003). [Discussed in our Feb. 24, 2012 post.]

     24. Lefemine v. Wideman, 568 U.S. __, No. 12-168 (Nov. 5, 2012) [U.S. Supreme Court, per curiam]: Plaintiff winning a permanent injunction entitled to fees under federal civil rights fee-shifting statute (42 U.S.C. § 1988), because injunctive or declaratory relief generally has a material alteration of relationships between the parties. [Discussed in our Nov. 5, 2012 post.]

     23. Greenberg Glusker Fields Claman & Machtinger LLP v. Rosenson, 203 Cal.App.4th 688 (Feb. 15, 2012) [2d Dist., Div. 5]: Law firm did not have to compel contractual arbitration under retainer agreement with client, but could simply demand arbitration within 30 days of Mandatory Fee Arbitration Act (MFAA) award in order to preserve contractual arbitration rights. [Discussed in our Feb. 16, 2012 post.]

     22. SCI California Funeral Services, Inc. v. Five Bridges Foundation, 203 Cal.App.4th 549 (Feb. 14, 2012) [1st Dist., Div. 5]: (a) Both plaintiffs and defendants can obtain postoffer fees as costs under Code of Civil Procedure section 998; and (b) Plaintiff was entitled to postoffer fee recovery under section 998 even though it did not obtain fees under Civil Code section 1717. [Discussed in our Feb. 14, 2012 post.]

     21. Martinez v. Brownco Constr. Co., Inc., formerly published at 203 Cal.App.4th 507 (Feb. 10, 2012) [2d Dist., Div. 1], rev. granted, No. S200944 (May 9, 2012) [California Supreme Court]: Code of Civil Procedure section 998 offeror making successive 998 offers entitled to cost shifting from the date of the earliest reasonable offer, meaning expert witness fees incurred for the period between the two offers were recoverable and disagreeing with Wilson v. Wal-Mart Stores, Inc., 72 Cal.App.4th 382 (1999) as well as Distefano v. Hall, 263 Cal.App.2d 280 (1968). [Discussed in our Feb. 11 & Aug. 4, 2012 posts.]

      20. Secalt S.A. v. Wuxi Shenxi Constr. Machinery Co., Ltd., 668 F.3d 677 (Feb. 7, 2012) [9th Cir.]: Defense “utter lack of proof” victory qualified as “exceptional” case giving rise to fee-shifting under Lanham Act section 35(a), 15 U.S.C. § 1117(a). [Discussed in our Feb. 8, 2012 post.]

     19. Chaaban v. Wet Seal, Inc., 203 Cal.App.4th 49 (Jan. 31, 2012) [4th Dist., Div. 3]: Code of Civil Procedure section(c)(1) allows a trial court to award defendant’s expert fees, regardless of whose witness the expert is, in the event plaintiff does not beat a defense 998 offer. [Discussed in our Feb. 1, 2012 post.]

     18. Baker v. Mulholland Security & Patrol, Inc., 204 Cal.App.4th 776 (Mar. 28, 2012) [2d Dist., Div. 8]: Expert witness fees not awardable against losing Fair Employment and Housing Act (FEHA) plaintiff unless lawsuit determined to be unreasonable, frivolous or vexatious in nature. [Discussed in our Mar. 30, 2012 post.]

     17. Walker v. Ticor Title Co. of California, 204 Cal.App.4th 363 (Mar. 15, 2012) [1st Dist., Div. 1]: Financial impact on a losing party is a factor that cannot be used to reduce a Civil Code section 1717 fee award. [Discussed in our Mar. 16, 2012 post.]

     16. Bates v. Presbyterian Intercommunity Hospital, Inc., 204 Cal.App.4th 210 (Mar. 12, 2012) [2d Dist., Div. 4]: Losing plaintiff in elder abuse action liable for cost shifting under Code of Civil Procedure section 998. [Discussed in our Mar. 12, 2012 post.]

     15. People ex rel. Dept. of Transportation v. Superior Court, 203 Cal.App.4th 1505 (Mar. 1, 2012) [3d Dist.]: Condemnor governmental entity accepting condemnee’s final demand several days before trial not subject to litigation expenses exposure under Code of Civil Procedure section 1250.410. [Discussed in our Mar. 2, 2012 post.]

     14. Farag v. ArvinMeritor, Inc., 205 Cal.App.4th 372 (Apr. 24, 2012) [2d Dist., Div. 3]: Code of Civil Procedure section 998 offer jointly made to husband and wife in a personal injury case is valid, agreeing with Barnett v. First Nat’l Ins. Co. of America, 184 Cal.App.4th 1454 (2010). [Discussed in our Apr. 26, 2012 post.]

     13. Collins v. City of Los Angeles, 205 Cal.App.4th 140 (Apr. 20, 2012) [2d Dist., Div. 3]: Trial court should peg Code of Civil Procedure section 1021.5 (private attorney general) award to estimated value of the case rather than the actual recovery in a class action context, disagreeing with Robinson v. City of Chowchilla, 202 Cal.App.4th 382, 402 & n. 6 (2011). [Discussed in our Apr. 22, 2012 post.]

Year in Review – 2011 [Part 2 of 2]

 

Wrapping It Up: M & M’s Top 25 Attorney’s Fees Decisions For 2011

     Here is the rounding out of our Top 25 Attorney’s Fee Decisions for 2011.

     12. Rogel v. Lynwood Revelopment Agency, 194 Cal.App.4th 1319 (2011) [2d Dist., Div. 8]; author--Presiding Justice Bigelow: Lodestar for winning litigant under Code of Civil Procedure section 1021.5 cannot be cut solely because losing governmental defendant could have better used adverse fee award payout to fund ongoing governmental obligations. [Discussed in our May 3, 2011 post.]

     11. Diamond Heights Village Assn. v. Financial Freedom Services Funding Corp., 196 Cal.App.4th 290 (2011) [1st Dist., Div. 4]; author--Justice Sepulveda: Rejecting “practical liability” test for award of attorney’s fees under Civil Code section 1717 as being too speculative. [Discussed in our June 9, 2011 post.]

     10. Fox v. Vice, 131 S.Ct. 2205 (2011) [U.S. Supreme Ct.]; author--Justice Kagan: “But for” test applies when determining whether a prevailing defendant should recover fees in a plaintiff’s civil rights suit involving both frivolous and nonfrivolous claims, rejecting the district court’s use of a “focus” test. [Discussed in our June 8, 2011 post.]

     9. In re Bluetooth Headset Products Liab. Litig., 654 F.3d 935 (9th Cir. 2011) [9th Cir.]; author--Senior Circuit Judge Hawkins: Ninth Circuit provides roadmap for recovery of attorney’s fees in mass tort products liability class action, discussing both lodestar and percentage of recovery methods as well as disproportionality between fees award and benefit for the class. [Discussed in our August 25, 2011 post.]

     8. Chitsazzadeh v. Kramer & Kaslow, 199 Cal.App.4th 676 (2011) [2d Dist., Div. 3]; author--Justice Croskey: Former Code of Civil Procedure section 128.5 standards do apply in determining if losing defendant’s SLAPP motion was frivolous; untimely SLAPP motion did not automatically mean the motion was frivolous in nature. [Discussed in our September 28, 2011 post.]

     7. CDF Firefighters v. Maldonado, 200 Cal.App.4th 158 (2011) [5th Dist.]; author--Justice Levy: Civil Code section 1717 fee recovery is available where one discrete claim happens to be adjudicated in plaintiff’s favor even though there was a dismissal of a separate partial claim not giving rise to fee entitlement. [Discussed in our posts of February 19, 2011 and October 28, 2011.]

     6. Nicholas Laboratories, LLC v. Chen, 199 Cal.App.4th 1240 (2011) [4th Dist., Div. 3]; author--Justice Ikola: Labor Code section 2802’s indemnification provision does not require an employer to reimburse an employee for attorney’s fees in successfully defensing employer (versus third-party) claims. [Discussed in our October 13, 2011 post.]

     5. Conservatorship of Estate of Cornelius, 200 Cal.App.4th 1198 (2011) [1st Dist., Div. 4]; author--Justice Sepulveda: Temporary conservator’s attorney was entitled to an award of attorney’s fees under Probate Code sections 2641(a) and 2642(a) even if no permanent conservator was ever appointed. [Discussed in our November 15, 2011 post.]

     4. Marriage of Guilardi, 200 Cal.App.4th 770 (2011) [6th Dist.]; author--Justice Elia: Marital settlement agreement’s attorney’s fees clause trumped needs-based family law fee request. [Discussed in our November 8, 2011 post.]

     3. Serrano v. Stefan Merli Plastering Co., Inc., 52 Cal.4th 1018 (2011) [Cal. Supreme Court]; author--Justice Corrigan: Clarifies the scope of Adoption of Joshua S., 42 Cal.4th 945 (2008) on the “public interest” element of California’s private attorney general statute, Code Civ. Proc., § 1021.5. [Discussed in our November 1, 2011 post.]

     2. Kim v. Westmoore Partners, Inc., 2011 WL 5925228 (2011) [4th Dist., Div. 3]; author--Acting Presiding Justice Bedsworth: Contains a sure-to-be quoted discussion of when appellate sanctions are warranted for lying to the court and showing a general lack of civility during appellate proceedings, complete with Don Quixote literary references. [Discussed in our December 3, 2011 post.]

     1. Dzwonkowski v. Spinella, 200 Cal.App.4th 930 (2011) [4th Dist., Div. 3]; author--Justice Fybel: Truly independent “of counsel” attorney arrangement, involving an “of counsel” having separate offices and insisting on the client attorney being independently responsible for “of counsel’s” fees, did not fall within the Trope limitation.  The case is discussed in our October 28, 2011 post; it was certified for partial publication on Novemer 19, 2011.

        Year in Review – 2011 [Part 1 of 2]

Year in Review - 2011

Wrapping It Up:  M & M’s Top 25 Attorney’s Fees Decisions For 2011  Part 1 of 2

     It is that time of year, at year end, for us to list our top published attorney’s fees decisions from the U.S. Supreme Court, Ninth Circuit Court of Appeals, and California Courts of Appeal. Although we normally do the “Top 20” decisions, the 2011 year was prolific for many, many decisions of interest, so we expanded it to the top 25.

     We might note that 2012 looms as an important year for the California Supreme Court to decide the issues involved in Kirby v. Immoos Fire Protection, United Parcel Service Wage & Hour Cases (McGann), and related cases considering whether a prevailing defendant is entitled to recover Labor Code section 218.5 attorney’s fees for successfully defending against a plaintiff employee’s claims for meal/rest break violations even if those claims were joined with Labor Code section 1194 overtime compensation claims subject to a unilateral pro-plaintiff fee shifting provision. (See our posts of September 28, October 25, and November 25, 2011.)

     However, we can only report and score on the top 25, keeping in mind that appellate jurists did decide many other important cases. These are our favorites in a wide range of areas, so enjoy. This will be the first 13 cases, with 12 more to follow in a subsequent post--likely closer to year’s end.

     25. La Cuesta v. Benham, 193 Cal.App.4th 1287 (2011) [4th Dist., Div. 3]; author--Presiding Justice Sills (who, unfortunately, passed away earlier this year after a long and distinguished career):  Under Civil Code section 1717, a lopsided win by landlord in obtaining repossession and compensation from tenant made landlord the prevailing party, reversing denial of fees even under an abuse of discretion standard. [Discussed in our March 30, 2011 post.]

     24. Ferwerda v. Bordon, 193 Cal.App.4th 1178 (2011) [3d Dist.]; author--Justice Robie:  Attorney’s fees cannot be awarded to a homeowners’ association based on unrecorded CC&R enforcement documents and manuals.  [Discussed in our March 26, 2011 post.]

     23. Turner v. Assn. of American Medical Colleges, 193 Cal.App.4th 1047 (2011) [1st Dist., Div. 5]; author--Justice Simons:  Attorney’s fees are not awardable to defendant prevailing on Unruh Civil Rights Act, Civil Code sections 52 and 54.3 claims even though defendant did prevail (but did not claim entitlement to work) under a broader fee-shifting provision contained in section 55. [Discussed in our March 25, 2011 post.]

     22. In re Marriage of Fong, 193 Cal.App.4th 278 (2011) [2d Dist., Div. 3]; author-- Justice Croskey:  Wife not complying with her financial disclosure requirements in family law proceeding could not seek fee award from noncompliant husband under Family Code section 2107(c). [Discussed in our March 4, 2011 post.]

     21. Marriage of Fossum, 192 Cal.App.4th 336 (2011) [2d Dist., Div. 1]; author--Justice Johnson, writing for the majority; Justice Rothschild, dissenting:  Spouse/domestic partner’s breach of Family Code section 721(b) fiduciary duty gives rise to mandatory fee award under Family Code section 1101(g); dissenting justice spelled out anomalous results from this interpretation and suggested a legislative amendment to the statute to make it discretionary in nature. [Discussed in our January 29, 2011 post.]

     20. Harris v. Maricopa County Superior Court, 631 F.3d 963 (9th Cir. 2011); author--Circuit Judge Reinhardt for the majority; Circuit Judge Bybee, concurring and dissenting:  “But for” test, not pro-rata allocation of fees between frivolous and nonfrivolous claims, was proper standard for fee recovery under federal civil rights fee-shifting statute; dissenting judge argues that “but for” test will make it impossible for defense to argue fee apportionment in mixed-bag cases. [Discussed in our January 16, 2011 post.]

     19. Garcia v. Politis, 192 Cal.App.4th 1474 (2011) [2d Dist., Div. 4]; author--Justice Willhite: Plaintiff seeking fees in default judgment context cannot file a fee motion post-judgment, but must make a fees request in plaintiff’s default judgment packet paperwork. [Discussed in our February 26, 2011 post.]

     18. First National Mortgage Co. v. Federal Realty Investment Trust, 631 F.3d 1058 (9th Cir. 2011); author--Senior Circuit Judge Thompson: 28 U.S.C. § 1821(b) $40-per-day limitation on witness expenses “preempted” application of California Code of Civil Procedure section 998’s allowance of broader “reasonable” expert witness fees in diversity cases. [Discussed in our February 1, 2011 post.]   Justice Thompson died February 19, 2011.

     17. Simke, Chodos, Silberfeld & Anteau, Inc. v. Athans, 195 Cal.App.4th1275 (2011) [2d Dist., Div. 1]; author--Presiding Justice Mallano:  Unspecified attorney’s fees prayer in complaint did not void future default judgment based on terminating sanctions conduct. [Discussed in our May 26, 2011 post.]

      16. Puerta v. Torres, 195 Cal.App.4th 1267 (2011) [4th Dist., Div. 3]; author--Justice Moore: Failure to include some type of acceptance language in Code of Civil Procedure section 998 offer invalidates the offer. [Discussed in our May 25, 2011 post.]

      15. Martinez v. L.A. County Metropolitan Transp. Auth., 195 Cal.App.4th 1038 (2011) [2d Dist., Div. 1]; author--Justice Rothschild:  Code of Civil Procedure section 998 offer excluding “costs” from recovery also means that attorney’s fees are excluded from the ambit of the offer. [Discussed in our May 23, 2011 post.]

     14. Ilshin Investment Co., Ltd v. Buena Vista Home Entertainment, Inc., 195 Cal.App.4th 612 [2d Dist., Div. 1]; author—Justice Chaney:  Attorney’s fees are not allowable for prevailing party in post-judgment enforcement independent creditor’s suit. [Discussed in our May 15, 2011 post.]

      13. In re Marriage of Davenport, 194 Cal.App.4th 1507 (2011) [lst Dist., Div. 2]; author--Justice Richman:  Scorched earth litigation practices justified denial of family sanction fees to wife and allowed for substantial fees against her/in favor of husband; case distinguishes between zealous advocacy and “attack dog”/”scorched earth” litigation. [Discussed in our May 6, 2011 post.]

      BLOG UNDERVIEW--This last one is a good one to end on, because both co-contributors have dogs--Mike has Riffle, a Labrador, and Marc has Watson, a mixed-breed dog, but still a good dog! Watch for our ensuing post before the end of the year with the next 12 decisions rounding out our “Top 25.” Happy Holidays to all of our readers.

Earlier Year End Wrap-Ups:

     2010  Part I; Part II     2009 Part I; Part II     2008 Part I; Part II