March 2017 Update
Eligibility and Entitlement to Fees
In DeSaulles v Community Hosp. of Monterey Peninsula (2016) 62 C4th 1140, the California Supreme Court held that a plaintiff who dismisses the action in exchange for the defendant's payment of a monetary settlement is the prevailing party for purposes of an award of costs under CCP §1032(a)(4), unless the parties' settlement agreement provides for costs. See §2.47.
In Charton v Harkey (2016) 247 CA4th 730, 740, the court held that the "unity of interest" exception, which denied CCP §1032 costs to dismissed defendants who had a unity of interest with nonprevailing defendants, no longer exists; and the trial court erred in awarding a dismissed defendant a percentage of the costs incurred, rather than determining what costs were reasonably necessary. See §2.47.
In Wood v Burwell (9th Cir) 837 F3d 969, the Ninth Circuit held that a plaintiff who obtains a remand requiring the defendant agency to consider statutorily required factors is the prevailing party, even if the agency action is re-approved on remand. See §2.101.
In Caldecott v Superior Court (2015) 243 CA4th 212, 227, the court held that a plaintiff prevails under the California Public Records Act (CPRA) (Govt C §§6250–6276.48) when filing the action results in defendant releasing a copy of a previously withheld document," even if the plaintiff already possesses the document. See §3.87.
In Rancho Mirage Country Club Homeowners Ass'n v Hazelbaker (2016) 2 CA5th 252, the court upheld a fee award under the Davis-Stirling Common Interest Development Act (CC 5975(c)) for enforcing a mediation agreement entered into under the Act. See §3.103.
In Sese v Wells Fargo Bank N.A. (2016) 2 CA5th 710, the court refused to review a trial court's denial of fees to a borrower who won a preliminary injunction under the California Homeowner Bill of Rights (CC §2924.12), holding that the order denying the fee motion was a nonappealable interlocutory order. See §3.103.
In Schmidt v California Highway Patrol (2016) 1 CA5th 1287, the court held that an action requiring the CHP to comply with statutes regarding deletion of arrest records conferred a significant public benefit meriting a fee award under CCP §1021.5. See §3.54.
Fee Awards Based on Contractual Fee Clauses
In GoTek Energy, Inc. v SoCal IP Law Group, LLP (2016) 3 CA5th 1240, the court held that a legal malpractice action was a dispute between the parties "relating to" their contract because a malpractice action sounds in both tort and contract. See §4.26.
In Hjelm v Prometheus Real Estate Group (2016) 3 CA5th 1155, the court held that the term "on a contract" should be liberally construed: as long as the action "involves" a contract, it is "on the contract" within the meaning of CC §1717. See §4.50.
Civil Code §1717(b)(2)'s prohibition against fees in cases that are voluntarily dismissed did not preclude a fee award to a tenant after the landlord dismissed an unlawful detainer action, given that the tenant sought prevailing party fees under a city ordinance. See Intelligent Inv. Corp. v Gonzales (2016) 1 CA5th Supp 1 in §4.22.
Attorney Fees Awarded as Sanctions
Amending the complaint after a CCP §128.7 motion is filed does not prevent imposition of sanctions relating to the filing of the original complaint. Bucur v Ahmad (2016) 244 CA4th 175. See §§6.14, 6.26.
Attorney Fees Awarded as Damages
In Nickerson v Stonebridge Life Ins. Co. (2016) 63 C4th 363, 377, the California Supreme Court held that an award of Brandt fees is properly included as compensatory damages for purposes of calculating the ratio between punitive and compensatory damages, whether the fees are awarded by the jury or by the trial court after the jury has rendered its verdict. See §7.9.
Methods of Fee Calculation
In Laffitte v Robert Half Int'l, Inc. (2016) 1 C5th 480, the California Supreme Court held that a percentage-of-the-recovery calculation with a lodestar cross-check is permitted in common fund cases. The opinion contains a thorough and scholarly discussion of the competing methods for determining common fund fee awards. See chaps 8–10.
In Yamada v Nobel Biocare Holding AG (9th Cir 2016) 825 F3d 536, a consumer class action, the Ninth Circuit held that a cross-check against the lodestar was not required when the monetary value of the settlement was difficult to quantify. See §8.9.
Determining the Lodestar
Cases discussing compensable litigation activities have been added to the chapter, e.g., Dragu v Motion Picture Indus. Health Plan (ND Cal 2016) 159 F Supp 3d 1121 (preparing for hearings; reviewing notices from court and editing briefs; time spent on unsuccessful opposition to motion to dismiss), MacDonald v Ford Motor Co. (ND Cal, May 31, 2016, No. 13-cv-02988-JST) 2016 US Dist Lexis 70809 (pre-filing communications with potential plaintiffs; drafting pleadings; discovery related to fee motions; intra-office conferencing), and Latoya A. v San Francisco Unified Sch. Dist. (ND Cal, Jan. 28, 2016, No. 3:15-cv-04311-LB) 2016 US Dist Lexis 11048 (discussing paralegal versus clerical tasks). See §§9.6–9.30, 9.72–9.77, 9.100. The chapter has also been updated with cases discussing methods of demonstrating market rates. See §9.121.
In Goglin v BMW of N. Am., LLC (2016) 4 CA5th 462 and Gonzales v City of San Jose (ND Cal, May 26, 2016, No. 13-cv-00695-BLF) 2016 US Dist Lexis 69390, the court of appeal and district court included as compensable litigation activities the time counsel spent preparing for trial while attempting to settle the case. See §9.9.
In Citizens for Ceres v City of Ceres (2016) 3 CA5th 237, the court held that attorney and paralegal work reasonably necessary to prepare the administrative record in CEQA and administrative mandamus actions is recoverable by the prevailing party at market rates. In No Toxic Air, Inc. v Lehigh Southwest Cement Co. (2016) 1 CA5th 1136, the court held that the same rule applies to non-CEQA actions brought under CCP §1094.5. See §9.9.
In Kerkeles v City of San Jose (2015) 243 CA4th 88, 103, a civil rights case, the trial court's determination that plaintiff's attorneys "expended far more time than a reasonable attorney could ever bill a paying client for" could not, without a clear and specific explanation, support a 50 percent reduction in compensable hours. See §9.4.
In a common fund case involving multiple teams of attorneys on both sides, the task of determining the fee award for class counsel was discussed in detail in In re Cathode Ray Tube Antitrust Litig. (ND Cal, Jan. 28, 2016, No. 3:07-cv-5944 JST, MDL No. 1917) 2016 US Dist Lexis 24951, adopted in Cathode Ray Tube Antitrust Litig. (ND Cal, Aug. 3, 2016, No. C-07-5944 JST) 2016 US Dist Lexis 102408. The opinion sets out the factors and calculations involved in determining the billing rates and hours reasonably claimed. See §§9.88, 9.110, 9.11.
Adjusting the Lodestar
In Kelly v Wengler (9th Cir 2016) 822 F3d 1085, the Ninth Circuit held that, although the Prison Litigation Reform Act capped hourly rates, a lodestar multiplier was permitted based on counsel's superior performance, limited resources, commitment of time to the case, extreme time pressure, exceptional results, and the need to attract attorneys to PLRA cases. See §10.36.
In Bravo v City of Santa Maria (9th Cir 2016) 810 F3d 659, the Ninth Circuit held that damages recovered from settling defendants must also be considered when assessing the success achieved, as long as the underlying claims were related. See §10.55.
Claiming and Opposing Fees
In Robinson v U-Haul Co. of Cal. (2016) 4 CA5th 304, a plaintiff who missed the 60-day deadline to file a motion for attorney fees was excused for "good cause" under Cal Rules of Ct 3.1702(d), based on honest mistake of law in misunderstanding trial court's prior rulings, when the fee opponent suffered no prejudice as a result. See §11.40.
Obtaining Fees for Appellate Services
In Hiken v Department of Defense (9th Cir 2016) 836 F3d 1037, the court held that successful appellants were entitled to attorney fees for obtaining a remand of the district court's fee award, regardless of whether or not the remand resulted in a higher fee. See §12.27.
Attorney Fees Awarded for Administrative Proceedings
In Shirrod v Director, Office of Workers' Compensation Programs (9th Cir 2015) 809 F3d 1082, the Ninth Circuit discussed how to define the "relevant community" when setting hourly rates for claimant representation under the Longshore and Harbor Workers' Compensation Act. See §§9.106, 9.109.
Fees for Work in Arbitration
In Ling v P.F. Chang's China Bistro, Inc. (2016) 245 CA4th 1242, a wage and benefits case, an arbitrator's fee award to a defendant employer was vacated as contrary to public policy expressed in the one-way fee-shifting provision in Lab C §1194. See §14.14.
Collecting Fee Awards
In Hearn Pacific Corp. v Second Generation Roofing, Inc. (2016) 247 CA4th 117, the court held that it was an abuse of discretion not to amend a fee order to add the real party in interest who elected under CCP §368.5 to allow the action to continue in the name of the original party. See §15.9.