March 2018 Update
Eligibility and Entitlement to Fees
In Gonzales v CarMax Auto Superstores, LLC (9th Cir 2017) 845 F3d 916, a Consumers Legal Remedies Act case, the Ninth Circuit held that defendant’s offer to provide a full remedy did not bar plaintiff’s fee under CC §1782 because the action was for injunctive relief, not damages. See §2.112.
In Active Props., LLC v Cabrera (2016) 6 CA5th Supp 6, the plaintiff/landlord was found liable under a nonfee-shifting statute (CC §1942.1) by the jury, but the trial court denied the tenant’s motion for fees under CCP §1174.21, which required a finding of liability under CC §1942.4. The Appellate Division reversed, holding that plaintiff’s liability under §1942.4 could be established in the fee motion itself. See §§2.102, 11.47.
In Department of Health Care Servs. v Office of Admin. Hearings (2016) 6 CA5th 120, 156, the court held that state and federal courts have concurrent jurisdiction to determine both administrative and trial court fees in IDEA (20 USC §1415) cases. See §2.12.
In Sviridov v City of San Diego (2017) 14 CA5th 514, 520, the court found that a defendant’s right to costs under CCP §998, without a finding that the plaintiff’s action was frivolous, took precedence over the plaintiff’s rights under either Williams v Chino Valley Indep. Fire Dist. (2015) 61 C4th 97 or the Public Safety Officers Procedural Bill of Rights Act (Govt C §§3300–3313). See §2.80.
In Surfrider Found. v Martins Beach 1, LLC (2017) 14 CA5th 238, 279, the appellate court affirmed the trial court’s award under CCP §1021.5, noting the precedential value of its decision and the interest shown on appeal by amici on both sides. Further, private enforcement was necessary because the governmental entities had not moved to actually “enforce” their dispute with defendant. See §§3.42, 3.61.
In Barry v State Bar (2017) 2 C5th 318, the California Supreme Court held that the trial court retained jurisdiction to award defendant fees under CCP §425.16 (anti-SLAPP) even after plaintiff’s case was dismissed for lack of subject matter jurisdiction. See §§2.5, 3.112.
In Shames v Utility Action Network (2017) 13 CA5th 29, 38, the court found that Lab C §218.5’s requirement that a claim for fees under the statute be requested “upon the initiation of the action” may preclude a fee claim for work on that claim while allowing fees for other similar statutes for other claims. See §3.97.
Fee Awards Based on Contractual Fee Clauses
In Mountain Air Enters., LLC v Sundowner Towers, LLC (2017) 3 C5th 744, the California Supreme Court held that defendants, who successfully raised a superseding option agreement in defense of an action for breach of contract, were not entitled to CC §1717 fees under the original contract’s fee provision because they had not brought an action or proceeding for “enforcement” of the contract; however, the defendants could recover fees under a different, broader provision in the superseding option agreement, which covered actions “brought … because of an alleged dispute … in connection” with the option agreement. See §4.33.
The California Supreme Court in DisputeSuite.com, LLC v Scoreinc.com (2017) 2 C5th 968 held that dismissal of an action under the contract’s forum selection clause did not entitle defendant to fees as the prevailing party when the claim was already refiled in the proper forum and remained unresolved. See §4.82A.
In R.W.L. Enters. v Oldcastle, Inc. (2017) 17 CA5th 1019, CC §1717 fees were denied in a case involving multiple documents because the document containing the fee clause was not part of a single transaction under CC §1642. See §4.34.
Attorney Fees Awarded as Sanctions
Effective August 7, 2017, the legislature amended CCP §128.5 to further clarify the standards and procedures for bringing a sanctions motion for bad faith litigation tactics and to remove the statute’s 2018 sunset date. See §§6.29–6.39.
In Goodyear Tire & Rubber Co. v Haeger (2017) ___ US ___, 137 S Ct 1178, the United States Supreme Court clarified that a district court cannot impose fee sanctions under its inherent power unless the fees were incurred “because of, and solely because of” the misconduct at issue. See §6.55.
In Ruhle v Wavefront Technol., Inc. (2017) 8 CA5th 1223, 1228, the court rejected a challenge to $8125 in attorney fees awarded as a condition of permitting plaintiff to withdraw admissions made in his discovery response. See §6.54.
Attorney Fees Awarded as Damages
In Monster, LLC v Superior Court (2017) 12 CA5th 1214, the court held that when defendant’s cross-complaint alleged attorney fees as damages for cost of defending plaintiff’s tortious breach of agreement not to sue, plaintiff’s exercise of constitutional right to jury trial required those fees be proved as part of case in chief. See §§7.8, 11.42.
In Pulte Home Corp. v American Safety Indem. Co. (2017) 14 CA5th 1086, the court of appeal required a recalculation of Brandt fees because the plaintiff and its counsel amended their fee agreement after trial from a contingency to an hourly basis. See §7.15.
Determining the Lodestar
In Gonzalez v Santa Clara Dep’t of Soc. Servs. (2017) 9 CA5th 162, the court of appeal held that, when the fee opponent did not object to evidence of time expended by previous attorneys, it was error for the trial court to deny or reduce claimed fees without giving the fee claimant an opportunity to cure any defect. See §9.83.
In Our Children’s Earth Found. v National Marine Fisheries Serv. (ND Cal, Mar. 1, 2017, No. 14–cv–01130–WHO) 2017 US Dist Lexis 29130, the court ruled that, without sufficient evidence of rates awarded in similar litigation, the attorneys were not entitled to a significant increase over the rates they received in prior cases. See §§9.9, 9.106.
Adjusting the Lodestar
In Morales v Fry (9th Cir 2017) 873 F3d 817, the Ninth Circuit affirmed a full lodestar award when plaintiff obtained only nominal damages but obtained a jury verdict that would deter similar violations in the future. See §§8.28, 10.63.
In Willis v City of Fresno (ED Cal, July 17, 2014, No. 1:09–CV–01766–BAM) 2014 US Dist Lexis 97564, aff’d in part and rev’d in part on other grounds (9th Cir 2017) 680 Fed Appx 589, the trial court properly considered success on pendent state law claims. See §10.55.
Claiming and Opposing Fees
In Perfect 10, Inc. v Giganews, Inc. (9th Cir 2017) 847 F3d 657, the Ninth Circuit held that counsel were required to at least “estimate” any supplemental fee-related services when filing their initial fee motion, and affirmed denial of their second fee motion for fees on fees. See §11.38.
In Marriage of Nassimi (2016) 3 CA5th 667, a fee denial was affirmed because counsel’s block-billing did not permit the court to allocate between fee-shifting and nonfee-shifting claims. See §11.50.
In Roth v Plikaytis (2017) 15 CA5th 283, the trial court erred by failing to consider a fee claimant’s previously filed supporting documents, though they were incorporated by reference in the fee motion and courtesy copies were provided. See §11.53.
Obtaining Fees for Appellate Services
In Ponte v County of Calaveras (2017) 14 CA5th 551, 560, appellate costs were awarded under CCP §1038. See §12.7.
Attorney Fees Awarded for Administrative Proceedings
In Cann v Carpenters’ Pension Trust Fund (9th Cir 1993) 989 F2d 313, the Ninth Circuit held that pre-litigation administrative work in ERISA cases is not compensable because the fee-shifting statute provides fees only for “actions,” not “proceedings.” See §13.17.
In Department of Health Care Servs. v Office of Admin. Hearings (2016) 6 CA5th 120, 156, the court of appeal held that state and federal courts have concurrent jurisdiction to determine both administrative and trial court fees under the Individuals with Disabilities Education Act. See §13.11.
Fees for Work in Arbitration
The California Supreme Court has granted review in Heimlich v Shivji (review granted Aug. 23, 2017, S243029; superseded opinion at 12 CA5th 152) to address the proper procedure for claiming and awarding CCP §998 costs in arbitration proceedings. See §14.12.
Collecting Fee Awards
In Quiles v Parent (2017) 10 CA5th 130, an FLSA action in which a defendant employer satisfied the damages portion of the judgment and requested a stay of a much larger attorney fees award, the court of appeal upheld the stay, reasoning that fees were expressly authorized by law within the terms of CCP §1033.5(a)(10)(C) and so were costs for purposes of CCP §917.1.