Post-Trial Practice | The California Blog of Appeal

Category Archives: Post-Trial Practice

June 25, 2012

Attorney fee review standard isn’t always abuse of discretion

Appealing from an attorney fee award is usually a tough slog. Unless you are arguing a pure issue of law, such as whether any attorney fee-shifting statute applies to the case at all, the Court of Appeal usually reviews only for abuse of discretion. However, an important exception is noted in the recent case of Samantha C. v. State Department of Developmental Services, case no. B232649 (2d Dist., Div. 1, June 21, 2012).

In Samantha C., attorney fees were sought under the “private attorney general statute,” Code of Civil Procedure section 1021.5, in which plaintiffs who enforce an “an important right affecting the public interest” can recover attorney fees under certain conditions, namely:

(a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.

Plaintiff had originally lost her lawsuit seeking state services, but appealed the judgment. The Court of Appeal reversed in a published decision that construed certain statutory and regulatory language governing eligibility for services. Nonetheless, on remand, the trial court declined to award private attorney general attorney fees, finding that the benefits of the lawsuit were limited to the plaintiff.

Are you wondering, How can that be, when the published decision involved the interpretation of statutory language that applies to all such cases? If so, give yourself a gold star. The Court of Appeal finds that the precedent set by the statutory and regulatory construction in its first decision necessarily extend beyond plaintiff to all applicants, and that the actual size of that class of persons need not be proven:

Although our underlying decision was phrased in terms of substantial evidence, it rested on determinations of statutory and regulatory construction that were not specific only to Samantha.

***

Although the record does not reflect the number of individuals that might be directly benefited by our decision in Samantha C., nevertheless, by defining the class of benefited persons to include those in Samantha‘s position, the Legislature has demonstrated its determination that such a need exists, in a quantity that is of sufficient size to require its legislative protection. In light of the Legislature‘s statement of purpose, we cannot justifiably conclude that such a group of potential claimants is nonexistent, or even minimal.

The point of this post, however, is not just the court’s decision, but how the Court of Appeal got there. Instead of deferring to the court’s discretion on the applicability of section 1021.5 in this case, the Court of Appeal found itself well situated to review applicability of section 1021.5 de novo, i.e., without any deference afforded to the trial court’s decision:

“A trial court‘s decision whether to award attorney fees under section 1021.5 is generally reviewed for abuse of discretion.” [Citation.] But where, as here, our published opinion provides the basis upon which attorney fees are sought, de novo or independent review is appropriate because we are in at least as good a position as the trial court to determine whether section 1021.5 fees should be awarded. [Citations.]

Not many appellants will be able to take advantage of this reasoning to obtain de novo review of their entitlement to fees.

There is one curious point to the decision. Although the Court of Appeal did not strongly emphasize it, implicit in its conclusion that the first appeal resulted in a benefit for a large class of persons is that its prior decision was a published one. Odd that its original opinion on the fee issue was not published.

By the way, if you’ve stumbled across this post looking for answers on attorney fees that are not addressed in this post, poke around at the California Attorney’s Fees blog, where they’re all attorney fees, all the time!

Be the first to comment!

Posted in: Attorney Fees, Standard of Review

Tags: Attorney Fees, california, Standard of Review

January 28, 2009

The “Poof” Principle

I don’t know if they coined the phrase — kudos to whoever did — but “the ‘poof principle” is the phrase the guys at California Attorney Fees use to sum up one aspect of Sanai v. Saltz, case nos. B198217 & B202787 (2d Dist. Jan. 26, 2009). What better phrase to apply to a case where the defendants sees a million dollar attorney fee award evaporate because the underlying judgment is reversed?

4 Comments

Posted in: Attorney Fees, Post-Trial Practice

October 25, 2008

The Judgment, the Whole Judgment, and Nothing But the Judgment

Sometimes, a judgment is a mixed bag. That’s how all the parties must have viewed the judgment in Satchmed Plaza Owners Assn. v. UWMC Hospital Corp., case no. G038119 (4th Dist. Oct. 23, 2008). The judgment enforced Satchmed’s right of first refusal with respect to 22 owned medical office units by requiring UWMC to offer them to Satchmed at a certain price. But the judgment did not require such an offer on 12 other units, which were leased. Unsurprisingly, perhaps, the judgment stated that there was no prevailing party.

Mixed bags create competing incentives. Here, one incentive got the best of Satchmed.

UWMC complied with the judgment by offering the 22 offices to Satchmed, which decided to purchase them. But those other 12 units. . . well, Satchmed just couldn’t let go. And those guys at Satchmed must have thought, “Hey, if you think about it, we won on 22 of 34 units, so aren’t we the prevailing party?” So Satchmed appealed, challenging those portions of the judgment regarding the 12 units and the prevailing party determination.

Under the established doctrine that a party’s voluntary acceptance of the benefits of a judgment — or even a portion of them — precludes an appeal by that party, Satchmed’s appeal is dismissed on the ground that it waived its right to appeal by purchasing the 22 units. Satchmed claimed the doctrine did not apply because of two equally established equitable exceptions. The court not only rejected the arguments, but noted that Satchmed’s conduct was manipulative.

First, Satchmed claimed that its acceptance of the benefits was compelled, rather than voluntary, because it risked losing its right to purchase the 22 units if it appealed the judgment. After noting that Satchmed could have appealed “without fear that its right to accept UWMC’s offer would evaporate by the simple act of filing” because matters relating to enforcement of the judgment would have been automatically stayed by the appeal, the court points out the lack of any real compulsion:

The judgment did not put Satchmed at risk of losing any property it already owned. Furthermore, Satchmed was not at risk of forfeiting monies to which it was entitled by statute if it chose to prosecute an appeal. Satchmed just wanted to aggrandize its award without risk. It simply had to choose whether it wanted to file an appeal in pursuit of an even greater award than the judgment provided to it, which would entail risking a reversal of the favorable portion of the judgment, or whether it wanted to simply accept the benefit of the favorable portion of the judgment, and thereby waive the right to appeal from the unfavorable portions. Having to make a choice of this nature does not make the chosen avenue involuntary.

Second, Satchmed contended the judgment was severable, but the court find that the only facts that Satchmed relied on were created by it after the judgment, and points out that a party may not make a nonseverable judgment severable by its post-judgment actions:

[T]he portions of the judgment pertaining to the 12 leased units and the prevailing party status are not severable. Satchmed attempts to use clever timing to convert a nonseverable judgment into a severable one. We look here at the judgment at the time it was entered, before any party appealed therefrom. At that point in time, it is clear that the judgment was not severable. A ruling pertaining to the 12 leased units easily could have affected the 22 owned units, and vice versa. But Satchmed seized the portion of the judgment beneficial to itself, and took title to the 22 owned units. It then said that no ruling on the 12 leased units could possibly affect the status of the 22 owned units. In other words, it had then put the 22 owned units beyond the reach of UWMC’s attack and beyond the purview of this court. Satchmed’s claim that the judgment was then severable is essentially a claim that the judgment had become severable because Satchmed had made it so. It does not work that way. Satchmed cannot have its cake and eat it too. Having accepted the benefits of the portion of the judgment making title to the 22 owned units available to it, it cannot now attack the portion of the judgment making title to the 12 leased units unavailable to it.

In short: a judgment is either severable when entered or not. One cannot convert a severable judgment into a severable one.

Are you tempted by the juicy part of a judgment, but tempted to appeal the rest? Think it over carefully before you decide what to do, and especially think twice about maneuvering to make the facts fit within an exception to the “acceptance equals waiver” rule. It won’t pay off.

1 Comment

Posted in: Judgment, Waiver of Issues

Tags: Appeal, Judgment, Waiver

August 7, 2008

A Judgment that Nobody Noticed Sinks an Appeal

How can the parties and the court all miss the fact that the court entered a judgment? Well, when the document that operates as such isn’t labeled “judgment,” I guess one can occasionally slip by . . . to the appellant’s great misfortune in Melbostad v. Fisher, case no. A119514 (July 23, 2008, ordered published Aug. 4, 2008), in which the court of appeal dismisses the appellant’s challenge to a fee award as untimely.

In Melbostad, the trial court granted defendant’s special motion to strike under California’s anti-SLAPP statute (Code of Civil Procedure section 425.16) and entered an order dismissing the complaint “with prejudice.” It subsequently granted a motion for fees brought by one of the defendants, then entered a judgment that “recapitulated” the previous orders granting the special motion to strike and granting the motion for attorney fees.

Appellant challenged the fee award by appealing from this second “judgment” rather than from the order granting the fee motion. Which is what brought the timeliness of the notice of appeal into play. His notice of appeal was untimely as measured from the order granting the fee motion, but timely as measured from the final “judgment.” Apellant conceded that his time to appeal the order granting the special motion to strike ran from the original order granting that motion (see Code Civ. Proc. sec. 904.1, subd. (a)(13)), but contended that his time to appeal the fee award ran from entry of the subsequent judgment. Even the respondent agreed.

Not so. The court finds that because the order dismissing the complaint disposed of all the substantive claims between the parties, it was an appealable judgment under Code of Civil Procedure section 904.1, subdivision (a)(1), and thus the fee award was a separately appealable order after judgment pursuant to section 904.1, subdivision (a)(2). The subsequent judgment “appears to have served no purpose here, and appellant’s appeal from it does not save his otherwise untimely appeal.”

There was some clever, but unavailing argument from the appellant, and the decision goes into some depth on why the order granting the section 425.16 motion is a “judgment.” In reading the case, you’ll also discover important differences in appealability based on whether the plaintiff or defendant prevails on the section 425.16 motion.

Be the first to comment!

Posted in: Appellate Jurisdiction, Appellate Procedure, Attorney Fees, California Procedure

July 28, 2008

Lawyers Must Eat — Getting Your Attorney Fees on Appeal

You’d be hard pressed to find a better overview of federal appellate review of attorney fee awards than Moreno v. City of Sacramento, case no. 06-15021 (9th Cir. .July 28, 2008). Judge Kozinski’s analysis begins with the truism “lawyers must eat,” then goes on to analyze the district court’s attorney fee award under 42 U.S.C.§ 1988, and thus looks at the issue from the perspective of the policies underlying attorney fee awards in civil rights cases.

Of particular interest is the section on fees for the appeal. Here’s a two-question quiz.

Do you know the proper forum for making your application for fees on appeal? If you said the court of appeals, you’re wrong! Fee applications are brought in the district court after remand.

You probably already know that the standard of review on a fee award is abuse of discretion. Is it any different when reviewing an award for fees on appeal? Well, yes and no. The award is still reviewed for abuse of discretion but the court of appeals will “look more closely” at fee awards involving appeals. Call it an enhanced review for abuse of discretion, if you will.

The district court trimmed the appellate fees by a third! But it did so without offering a good explanation . . . a problem that pervaded its fee determination. It’s interesting to see how Judge Kozinski analyzes the time and fees on appeal versus the time and fees for a summary judgment motion in the case:

The district court noted that plaintiff’s counsel spent twice as long on the appeal than on the summary judgment, but this does not mean the additional time spent on appeal was unjustified; after all, plaintiff lost claims at summary judgment that he won on appeal. More fundamentally, preparing summary judgment motions and appeals are not commensurate tasks, though they have some elements in common. What matters is whether spending more time winning on appeal than losing on summary judgment was an imprudent use of hours. The district court points to nothing to support the conclusion that it was.

Then there is the discussion of the “cost effectiveness of various law firm models” for staffing cases, and which personnel get assigned which tasks at which rates. As I read through it, I thought, “All this concern over hourly rates and who did what! What would the court do if the firm charged a flat fee and didn’t keep track of anyone’s hours?”

I haven’t seen a fee decision based on a flat fee without time records. But the courts still appear to be in love with the “lodestar” system: reasonable hourly rate times reasonable time expended. Which is why I tend to keep time records even when I charge a flat fee.

Now I’m really curious. If anyone knows of a case analyzing the propriety of a fee award based on a flat fee, please send me the cite.

UPDATE (8/7/08): California Attorney’s Fees examines some of the standards employed by the Moreno court to fees incurred prior to appeal, notes the significance of the case, and responds to my query about flat fees.

Be the first to comment!

Posted in: Appellate Procedure, Attorney Fees, Federal Procedure, Standard of Review

June 30, 2008

California Attorney Fee Recovery Preempted by ADA – and a Note on Missed Issues

It’s quite common for plaintiffs to sue under similar state and federal provisions. The disabled plaintiffs who sued under both the federal Americans with Disabilities Act and the California Disabled Persons Act in Hubbard v. Sobreck LLC, case no. 06-56870 (9th Cir. June 27, 2008) did themselves a favor by doing so, as the court finds that the prevailing defendant’s right to attorney fees under the CDPA is preempted by the more stringent fee provision in the ADA.

The ADA fee provision makes fees discretionary, but that has led to a practice of awarding fees to defendants only where the plaintiff’s case is frivolous. The CDPA, on the other hand, makes fees recoverable by the “prevailing party.” Since liability is coextensive – a violation of the ADA is a violation of the CDPA - the federal provision wins out.

From an appellate angle, the interesting thing about the case is that the court addressed the preemption issue even though it was not raised in the district court. Because it is an issue of law, the Ninth Circuit had discretion to consider the issue for the first time on appeal.

More interesting yet, this wasn’t the first time a district court missed the issue. The defendants cited two district court opinions that awarded fees to prevailing defendants sued under both the ADA and the CDPA, but the Ninth cites a major flaw in both of them: “Neither of these cases, however, considered the issue of preemption.” The Ninth finds a third district court decision consistent with its own, but even that decision failed to address preemption.

I suppose it’s easy to say that at least one of the lawyers or judges in these three cases should have seen and dealt with the preemption issue. But in the the throes of litigation, the parties and the court sometimes miss an issue that later seems obvious in hindsight. That can be dangerous, as the appellate court won’t always be able or inclined to address the missed issue.

1 Comment

Posted in: Appellate Procedure, Attorney Fees, Federal Procedure, Preemption, Waiver of Issues

June 25, 2008

Appeal That Fee Award

I don’t usually review unpublished decisions for material for this blog.. But unpublished decisions, even if they don’t create new law, can have some interesting points. (Just ask Bisnar | Chase.)

California Attorney’s Fees has a good post, based on an unpublished decision filed last Monday, reminding everyone to appeal separately from a fee award in addition to any appeal from the judgment. The appellant in the case filed an untimely notice of appeal from the judgment that did not include an appeal from the subsequent fee award, then filed an untimely notice of appeal from the fee award. Result: untimely appeal, no jurisdiction, appeal dismissed.

Be the first to comment!

Posted in: Appellate Jurisdiction, Appellate Procedure, Attorney Fees, California Procedure

May 16, 2008

Remember, Don’t Be Shy

I told you last October not to be shy when you move to recover attorney fees. Steele v. Youthful Offender Parole Board, case no. C053553 (3d Dist. May 15, 2008) is the mos recent case in point.

Defendant appealed from a judgment for plaintiff on a retaliation claim under the Fair Employment and Housing Act (Govt. Code, § 12900 et seq.). Damages were barely $9,000, but plaintiff’s attorney was awarded more than $146,000 in fees, which is almost certainly what drove the appeal.

Defendant’s only contention regarding fees on appeal, however, was that the fee award must be reversed because the underlying judgment must be reversed. No claim that the fees were excessive, just that the fee award must fall with the underlying judgment.

The judgment survives substantial evidence review, however. Which means that the fee award of more than 16 times the judgment survives, too.

Be the first to comment!

Posted in: Attorney Fees

May 6, 2008

Who Knows Why Some Parties Appeal?

Sometimes a decision just makes no sense, at least to someone looking at it from the outside. Such is the case with Profit Concepts Management, Inc. v. Griffith, case no. G039077 (4th Dist. May 5, 2008).

Oh, the merits make sense. California-based Profit Concepts sued former employee Griffith in California under an employment agreement that contained an attorney fee provision. But Griffith lived in Oklahoma and successfully moved to quash service for lack of personal jurisdiction. The trial court awarded Griffith contractual attorney fees as the prevailing party.

Reasonable enough. The court rejects Profit Concept’s argument that because the lawsuit, which it had resumed in Oklahoma, left contract issues pending resolution, Griffith could not be considered the prevailing party under Civil Code section 1717. Griffith clearly prevailed on the claims in California, and that is all the award was concerned with.

The part that’s hard to understand is the reasoning employed by Profit Concepts in pursuing the appeal, both legally and practically.

Legally, it’s hard to understand why Profit Concepts cited case authority interpreting an older version of Civil Code section 1717 that had changed in a very material respect. Specifically, while the former statute defined a “prevailing party” in terms of obtaining a final judgment, the current version defines prevailing party as, among others, a party that obtains a dismissal. That’s a pretty clear and relevant distinction.

The practical part is just as hard, if not harder, to understand. The attorney fees awarded were barely $3400. What made this appeal practical?

2 Comments

Posted in: Attorney Fees, California Procedure

April 28, 2008

Attorney Fee Program Coming Up in Los Angeles

One of the organizers of an upcoming attorney fee CLE program in Los Angeles was lucky enough to reach me by phone this morning before I was too embroiled in my work, and asked if I would be kind enough to help publicize the program. Well, I’m a sucker for a request like that, and especially so in this case, since attorney fees are of particular interest to me (and The Pro Bono Road to Riches is still one of the most traffic-generating posts I’ve had).

So, here’s the skinny:

Date: June 19, 2008

Time: noon- 5 pm

Place: Southwestern Law School (Los Angeles)

This description of coverage comes straight from straight from the promotional materials (PDF download) from the presenting organization, the National Association of Legal Fee Analysis:

Fee‐Shifting Provisions & Prevailing Party: Statutes & Case Law

Fee Recovery in Commercial Litigation

Attorney Fees in Class Action Litigation

Attorney Fees & Legal Billing: A Practical Guide

Reasonable Fees in Cumis Counsel Situations

Recovering Attorney Fees in Insurance Bad Faith Litigation

Looks promising. The PDF materials include a link to th registration site, or just click here.

Be the first to comment!

Posted in: Attorney Fees, Events

April 8, 2008

What Happens to the Trial Lawyer’s Contingency Fee when an Appeal is Taken?

The Texas Appellate Law Blog has done all appellate lawyers and contingency fee trial lawyers a favor with a post urging trial lawyers to include in their contingent fee agreements a provision explaining how the fee is affected if an appeal is taken: “There really is no right or wrong way to do it, but in my view, contingent-fee agreements should always spell out what happens in the event of an appeal.” He also covers a number of different ways to do it. Please check it out.

1 Comment

Posted in: Attorney Fees, Ethics, Law Practice & Marketing

April 1, 2008

Appellate Surprises

Some points about appellate practice — even well-settled points — can come as surprises to those not well versed in it. Doe v. United Airlines, case no. B192865 (2d Dist. Mar. 20, 2008) consolidates several of them in a single case. I’m only going to spend a line or two on each one, without much elaboration. The point of the post is to disclose just a few traps trial attorneys can fall into, not to give detailed exposition on each point.

My original post about the case concerned what some might consider a procedural oddity: a new trial motion where no trial ever occurred. A new trial motion is validly made after a grant of summary judgment.

Here are the remaining points I think worth bringing out of the case:

The Protective Cross Appeal. Congratulations, you’ve won your new trial motion! Your adversary appeals the grant of a new trial. And if you think you’re going to be disappointed if they prevail on appeal, you’re going to be absolutely horrified if you forgot to file a protective cross-appeal from the underlying judgment.

Forfeiture of Evidentiary Objections. California decisions generally hold that objections to evidence offered in summary judgment are not preserved for appeal unless the objecting party secures a ruling from the trial court. But with the recent development of a split of authority, the Supreme Court has agreed to review the issue.

Affirmance of New Trial Orders on Alternative Grounds. Read that new trial statute (Code Civ. Proc., § 657) closely. Section 657 provides, in part, that (emphasis added) “[o]n appeal from an order granting a new trial the order shall be affirmed if it should have been granted upon any ground stated in the motion, whether or not specified in the order or specification of reasons,” followed by exceptions to this rule.

Be the first to comment!

Posted in: Appellate Procedure, New Trials, Summary Judgment, Waiver of Issues

March 25, 2008

Order or Judgment? It can make a big difference!

More wrangling over what triggers a deadline to appeal.

Several weeks ago, I reported on Adaimy v. Ruhl, case no. B193745 (2d Dist. Feb. 28, 2008), in which the court of appeal held that serving just one of multiple attorneys representing a party with a notice of entry of an order denying a motion for new trial suffices to trigger the deadline to appeal. In this order modifying the opinion without change in the judgment and denying rehearing, the court tacks two paragraphs on to its original opinion that lead me to the question posed in the title of this post.

Though the original opinion refers to an August 7, 2006 “notice of entry of the order” denying the appellant’s new trial motion, the modified opinion refers to a document of the same date titled “Ruling on Submitted Matter,” apparently the same document. The generic reference has some significance in the context of the new argument that the court quickly disposes of.

Appellant claimed that the “Ruling on Submitted Matter” was not a notice of entry of order within the meaning of rule 8.108(b)(1)(A), California Rules of Court (extending the time to appeal to 30 days after notice of entry of order denying new trial) because it was not titled “Notice of Entry of Order” and was not file-stamped with the date of entry.

The court notes, however, that the words “Notice of Entry of Order” appear at page 6 of the document. That’s enough. But is that necessary? Rule 8.108(b)(1)(A) triggers the deadline for appealing from the service of “an order denying the motion or a notice of entry of that order.” It’s hard to say exactly what this document was comprised of, but I’m guessing that the “Ruling on Submitted Matter” was not the order itself, but a document with the order attached. If it were simply the order itself, it seems the court could have found it sufficient to trigger the appeal deadline regardless of the presence of the words “notice of entry.”

As for the missing file stamp, the court notes that while a file-stamp must appear on any copy of the judgment served in lieu of a notice of entry of judgment (rule 8.104(a)(1)), there is no such requirement under rule 8.108 for notice of entry or a copy of the order denying a new trial.

Be the first to comment!

Posted in: Appellate Jurisdiction, Appellate Procedure, California Procedure, New Trials, Notice of Appeal

March 20, 2008

New Trial Motions after Summary Judgment

Can you move for a new trial when your case was disposed of by summary judgment? This question undoubtedly causes some degree of cognitive dissonance in many lawyers: a new trial when there was no trial?

But the answer is “yes.”

A reminder comes in the form of Doe v. United Airlines, case no. B192865 (2d Dist. Mar. 20, 2008). After United successfully moved for summary judgment, Doe moved for a new trial on the ground of “newly discovered evidence” that purportedly raised a triable issue of fact precluding summary judgment.

Not that it ultimately did her any good. The court of appeal holds that the trial court abused its discretion in granting the new trial motion and affirms on plaintiff’s protective cross-appeal from the grant of summary judgment.

There are lots of post-trial and appellate tidbits in this case. Nothing new, just well-established principles for which the case provides a reminder. I’ll probably be putting up separate posts on them (or consolidate them into a new post) in the next few days.

3 Comments

Posted in: California Procedure, New Trials, Summary Judgment, Summary Judgment

March 12, 2008

Special Verdicts vs. Special Verdict Forms

Where a special verdict is hopelessly ambiguous as to whether it awards duplicative damages, the rule is that the trial court should ask the jury to clarify the verdict. But what if the jury is discharged before anyone objects to the ambiguity? The court of appeal reminds us in Zagami, Inc. v. James A. Crone, Inc., case no. D049563 (4th Dist. Mar. 10, 2008), that it depends on whether the ambiguity arises from the form of the verdict or the jury’s answers.

Error in the form of the verdict is subject to waiver if no objection is made. But ambiguity created by the jury’s responses is not waived, even if no objection is raised until after the jury is discharged. (See fn. 6 of the case.) Indeed, in this case, the appellant argued initially that the verdict was unambiguous and only changed its tune after entry of judgment, and the court reverses because the verdict is “hopelessly ambiguous.”

Keep the distinction in mind, and make sure which you are dealing with.

Be the first to comment!

Posted in: Juries, Post-Trial Practice

March 11, 2008

Attorney Fees in a $44 Case?

What do you suppose the high end of “reasonable” is for attorney fees in a successful lawsuit based on about $44 in damages? Supposing that $44 claim settled for $10,500?

If you said attorney fees of $500 are about right, give yourself a gold star. In Harrington v. Payroll Services, Inc., case no. B198883 (2d Dist. Feb. 28, 2008), the trial court found that once class certification was denied, the case was so simple that plaintiff was not entitled to fees at all, let alone the $46k sought.

The court of appeal reverses on entitlement to fees, finding they are statutorily mandated, but that $500 is reasonable. It fixes fees in that amount rather than remand for determination in the trial court.

This case might seem contrary to Cruz v. Ayromloo, decided by another division of the same district, which awarded fees far in excess of the damages awarded and the fee schedule set out in the local rules. But there, the court found nothing unreasonable about the time spent on the case. By contrast, the court in Harrington found the hours unreasonable on their face: “At the risk of understatement, there is no way on earth this case justified the hours purportedly billed by Harrington’s lawyers.”

California Labor & Employment Law Blog has some commentary on how this “levels the playing field” in wage and hour cases.

I’m very curious how this $44 case settled for $10.5k. Any wage & hour practitioners out there — or anyone else — care to speculate?

Be the first to comment!

Posted in: Attorney Fees, Labor & Employment, Post-Trial Practice

March 6, 2008

Another Private AG Fees Case Headed for the Supremes?

Well, we just had one Supreme Court opinion on the private attorney general statute (about which I posted here), and at first, I suspected that the Third District Court of Appeal was trying to tee up another one for potential Supreme Court review in Marine Forests Society v. California Coastal Commission, case no. C052872 (3d Dist. Mar. 4, 2008). To my mind, its public policy implications are significant.

At issue is the scope of the “catalyst” theory for recovering attorney fees under California’s “private attorney general” statute, Code of Civil Procedure section 1021.5. The catalyst rule provides that a party can recover fees under the statute even if it is not the prevailing party “if the lawsuit was the ‘catalyst’ that caused ‘the defendant [to] change[] its behavior substantially because of, and in the manner sought by, the litigation.’ (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 560 . . . .)”

Does that rule allow a plaintiff to recover fees if its lawsuit is the catalyst for change in how the public entity defendant operates if the change is mandated by the legislature in response to the suit, rather than instigated internally by the public entity? The Court of Appeal says no. Reading the catalyst rule of Graham literally, it holds that the change must be implemented unilaterally by the defendant, rather than be imposed on the defendant by a third party like the legislature, to bring the change within the catalyst theory. Thus, the fact that the legislature changed the law in response to a Supreme Court ruling in an earlier appeal from the case does not support fee recovery under the catalyst theory.

It was this statement in the opinion’s introduction that made me think the court of appeal was trying to set the case up for Supreme Court review::

To the extent it can be said that the rationale of the catalyst theory should apply to a lawsuit like this, which was the moving force resulting in a change in statutory law that conferred a significant benefit on the general public regarding important rights affecting the public, the argument must be made to the California Supreme Court because we are bound by the ruling in Graham, supra, 34 Cal.4th at p. 560. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

But there were other obstacles to a fee recovery in this case. The court of appeal found first that the plaintiff had not achieved the primary relief it sought. That is the first condition of a “catalyst” – based fee recovery, and plaintiff’s failure to meet it should have been enough to deny fees. The impetus for the changed behavior was merely an additional reason to deny fees.

By the way, Tom Caso at The Opening Brief has had a number of interesting posts on section 1021.5 in the last few months.

Be the first to comment!

Posted in: Attorney Fees, California Procedure, Post-Trial Practice

February 28, 2008

Expert Witness Fees May Not Be Awarded Under Private Attorney General Statute

In a decision being closely watched by many, the California Supreme Court holds today in Olson v. Automobile Club of Southern California, case no. S143999 (Feb. 28, 2008), that Code of Civil Procedure section 1021.5, the state’s “private attorney general” statute, does not authorize a court to award expert witness fees in addition to the attorney fees explicitly authorized by the statute.

As the court notes, the statute explicitly authorizes an award of “attorney fees” and is silent about expert witness fees. Which should have made for an easy decision.

Yet the court is compelled to delve behind the plain language of the statute. The decision is a good primer on how to read behind the lines of a statute by examining its enactment and amendments relative to existing case law. That doesn’t work to change the plain meaning in this case, though.

There is sure to be more posted by other bloggers. I’ll provide links as I find them.

1 Comment

Posted in: Attorney Fees, California Procedure, Costs, Post-Trial Practice

February 26, 2008

Self-Represented Attorney May Not Recover Fees on Anti-SLAPP Motion

In Taheri Law Group v. Neil C. Evans, case no. B192828 (2d Dist. Feb. 26, 2008), the Court of Appeal holds that the attorney fee provision in the anti-SLAPP statute (Code Civ. Proc., § 425.16) does not entitle a self-represented attorney to recover fees for bringing a successful anti-SLAPP motion.

This is merely an extension of the similar holding in Trope v. Katz (1995) 11 Cal.4th 274, which held that a self-represented attorney could not recover fees under a contractual fee provision. The Taheri court makes clear that an attorney-client relationship is necessary before fees may be recovered.

The identical issue of anti-SLAPP attorney fees was treated in much greater detail, and with the same result, in a 2004 decision by the same district (but different division) of the Court of Appeal. That decision was depublished when the Supreme Court granted review on a different issue. But you can find the case in the California Reporter (at least on Westlaw), and I recommend doing so if you are interested in a more detailed rationale than the Taheri opinion provides. Soukup v. Stock (2004) 15 Cal.Rptr.3d 303.

It would be a mistake to extrapolate from Taheri and Trope that fees are not recoverable in every situation in which they are not actually “incurred.” Regular readers will remember that when it comes to attorney fees, “incurred” doesn’t always mean “become obligated to pay” for. Courts have awarded fees in pro bono cases under fee shifting statutes, and will probably do the same someday under a contractual fee provision. As Taheri notes, the touchstone for recovery is an attorney-client relationship.

Be the first to comment!

Posted in: Anti-SLAPP, Attorney Fees, California Procedure

February 14, 2008

Review of “Private Attorney General” Fee Awards

Kimberly Kralowec at The Appellate Practitioner points out a case from earlier this month, Roybal v. Governing Board of the Salinas City Elementary School District, case no. H030596 (Jan. 11, 2008, ordered published Feb. 6, 2008), in which the Court of Appeal neatly summarizes the proper standards of review to apply when reviewing attorney fee awards made pursuant to California’s “private attorney general” statute, Code of Civil Procedure section 1021.5. The case recognizes the Supreme Court’s 2006 departure from the one-size-fits-all “abuse of discretion” standard in recognition that some awards may be due more deferential review in light of their fact-intensive nature, while those revolving around legal issues like statutory interpretation should be closely scrutinized. See her post for the money quote from the case.

Be the first to comment!

Posted in: Appellate Procedure, Attorney Fees, California Procedure, Post-Trial Practice, Standard of Review

Tags: Attorney Fees

February 12, 2008

A “Cautionary Tale” on Post-Judgment Interest when Court of Appeals Directs Entry of Money Judgment

It’s always frustrating when you have to litigate over issues stemming from a court’s failure to do something that it should have done or even was required to do. Just ask the Oakland Raiders, who saw their new trial order reversed because the trial judge’s order did not satisfy the Code of Civil Procedure. The issue also arises in California courts where the trial court fails to rule on objections to evidence in the context of a summary judgment motion. The consequences of such failure have been discussed on a number of blogs recently, and The Appellate Practitioner has an excellent post regarding the Supreme Court’s recent grant of review in a case on that issue.

In Planned Parenthood v. American Coalition, case no. 06-35733 (Feb. 11, 2008), we see an example in the context of a federal requirement; specifically, where the Federal Rules of Appellate Procedure impose an obligation ot the Court of Appeals and the court fails to honor it.

The rule at issue is FRAP 37(b), which provides that “[i]f the court modifies or reverses a judgment with a direction that a money judgment be entered in the district court, the mandate must contain instructions about the allowance of interest.” In a previous appeal in the case, the Ninth reversed a punitive damages award as violative of due process and remanded for retrial unless the creditors accepted the judgment with a reduced punitive damages component, but the court failed to include in its mandate the date on which interest started to accrue on the judgment. The trial court entered a new judgment allowing for accrual of post-judgment interest as of the date of the original judgment.

The Ninth holds that failure to specify a judgment accrual date where required by FRAP 37(b) precludes a district court from entering the newly mandated judgment with interest accruing from the date of the original judgment. Interest accrues from the date where the amount of the judgment is “meaningfully ascertained.” and this ordinarily means the date of the mandate from the Court of Appeals if the mandate directs entry of a money judgment different from that in the original judgment.

Here, however, the judgment creditors get interest from the date of the original judgment in any event. The court recognizes that its omission was inadvertent and that despite the reduction in punitive damages on remand, the creditors’ right to interest on the reduced amount had been “meaningfully ascertained” in the original trial. Accordingly, it exercises its right to recall its prior mandate and amends it to include interest from the date of the original judgment.

That said, the court makes clear that it is affording this courtesy only because its prior jurisprudence was unclear, and that litigants should treat this case as a cautionary tale:

Henceforth, we expect that litigants in this circuit will clearly understand that if we modify or reverse a judgment with a direction that a money judgment be entered in the district court, our mandate must contain instructions about the allowance of post-judgment interest. Fed. R. App. 37(b). If our mandate omits such instructions, a party that believes it is entitled to interest from a date other than the date of entry of judgment on remand must expeditiously seek reform of the mandate.

Professor Martin calls this “an entirely just and equitable opinion.” I think that’s correct. But keep the court’s caution in mind.

I think a federal court litigant in this situation can have much more peace of mind than a party in a California case involving a new trial or summary judgment situation mentioned above. A party can expect a ruling one way of the other on a motion to recall and amend the mandate. Pleas to California trial courts to rule definitively on evidentiary objections often fall on deaf ears. And a party seeking a new trial is prohibited from doing too much to facilitate the trial court’s compliance with new trial procedures. Nonetheless, this greater peace of mind only applies if the party remembers to “expeditiously seek reform of the mandate.”

Be the first to comment!

Posted in: Appellate Procedure, Damages, Decision on Appeal, Federal Procedure, Judgment, Remittitur/Mandate

February 8, 2008

Pro Bono Attorney Fees in the News Again

National Law Journal has a new article called Pro Bono Case Triggers a Fee Fight on the controversy surrounding the attempt of a Seattle BigLaw firm (Davis Wright Tremaine) seeking to recover its attorney fees under a fee-shifting statute even though it took the case pro bono. The case was the closely watched “Seattle Schools” case decided by SCOTUS last year. (If you want some background from the view of the losing party, the school district’s press release from the day of the decision is available as a PDF download.)

In a very detailed post entitled The Pro Bono Road to Riches! last October, I discussed the issue in the context of a California case, in which the dictum of the Court of Appeal seemed to indicate a predisposition to awarding fees in pro bono cases. In that case, the trial court trimmed the fee request by 50% right off the top because it deemed the engagement “mildly pro bono,” and ultimately awarded less than one third of the amount requested. The Court of Appeal’s dictum leaves little doubt that the firm left plenty of money on the table by not cross-appealing to contest the amount awarded. (My earlier post includes several links to information about the Seattle Schools case, by the way.)

My post caught the attention of the Overlawyered blog, which sent me a ton of traffic when they linked my post. In fact, the traffic from Overlawyered was responsible for my highest traffic ever for a single day, and accounts for the anomalous bump in traffic during October that you see in the chart to the right. Clearly, this is a hot issue. So I also followed it up with an article in our local bar publication, CITATIONS.

I continue to believe that a large part of the controversy in the Seattle Schools case is driven by the nature of the party from whom fees are sought: a school district. Obviously, many members of the public are going to think that the district has better uses for the money. (Of course, there were probably a lot of people who said the same thing about the money spent by the district in fighting the case.) I wonder, though, if the people who are outraged at the firm seeking fees from the school district would have been just as angry with the firm in the case I profiled, which successfully represented more than 30 tenants seeking damages on various causes of action arising from the landlord’s refusal to let the tenants return to their units after they were evacuated from an unsafe building by the city. That firm, too, was a BigLaw heavy-hitter, but I’m sure the landlord of an unsafe building is going to get far less sympathy from the public than a school district.

One commentator in the NLJ article raises a point I made to a reporter who called me about my post: Is it right for well-heeled firms who often burnish their images by conspicuously accepting pro bono engagements to then seek fees for those engagements? This is an especially valid question if the firm announces the engagement with some fanfare but keeps the fee request rather quiet. It makes one wonder whether anyone honored for their pro bono work has actually been collecting fees for part of it.

Actually, that wouldn’t bother me, as long as fees were disclosed. A semi-pro bono case — in which an attorney agrees to an engagement for which he is paid only if he can recover fees under a contractual or statutory provision — is really just another form of contingency fee case, with all of the same risks.

Hat tip to How Appealing for the link to the National Law Journal article.

8 Comments

Posted in: Attorney Fees, Blogging, Ethics

January 23, 2008

Jury Foreman’s Blog a Likely Issue on Appeal

A local trial court has just denied a new trial motion based on juror misconduct, where the misconduct was the jury foreman’s blogging about the gang member’s 19-day murder trial while it was going on, including posting a photo of the murder weapon, commenting on the evidence and witnesses, praising his own performance as jury foreman, and criticizing the work ethic of courtroom staff. From today’s Ventura County Star:

After sentencing a gang member to prison for murder, a Ventura County judge ripped into the jury foreman Tuesday, holding the juror in contempt of court for writing a blog that exposed details of the case during the trial.

The blog, or Web log, also criticized the judge’s staff and complained that the 19-day trial was taking too long.

Ventura County Superior Court Judge Edward Brodie told the jury member, identified only as Juror No. 7, that he had failed to follow the judge’s daily instructions to refrain from discussing the case with anyone during the trial.

Attorneys said this apparently marks the first time a jury member in Ventura County has been accused of misconduct for producing a blog, an increasingly popular type of journal on the Internet.

“. . . an increasingly popular type of journal on the Internet.” Ya think?

The jury foreman testified at his contempt proceedings that “he didn’t believe his blog constituted ‘discussing the case’ in defiance of the judge’s instructions.” Really? According to the defendant’s lawyer, the blog included a chat room where readers asked questions and the juror answered them.

The article includes some sparring between counsel over the merits of raising the blog as an issue on appeal. The trial judge’s ruling, obviously, means that he did not think that the misconduct prejudiced the fairness of the trial.

According to the article, the blog is titled “The Misanthrope,” but none of the blogs I found that included “misanthrope” in the title had posts about the trial. It’s possible the judge ordered the juror to take down the posts, but I couldn’t even find cached pages in Google.

5 Comments

Posted in: Blogging, Juries, New Trials

Tags: Juries, jury misconduct

January 9, 2008

More on California’s Private Attorney General Statute

This post at The UCL Practitioner notes an article about a case being argued today in the California Supreme Court (Olson v. Automobile Club of Southern California, no. S143999) addressing whether expert witness fees are recoverable under the state’s private attorney general statute, Code of Civil Procedure section 1021.5.

If the private AG statute interests you generally, make sure you didn’t miss this post from yesterday, which appears immediately below this one on the home page.

Be the first to comment!

Posted in: Costs, Expert Witnesses

Tags: expert witnesses

January 8, 2008

Recovery of Fees for Pre-Litigation Activities

In this post at The Opening Brief, Tom Caso discusses an attorney fee case that I missed last month (geez, it hurts to admit that). The case, Hogar v. Community Development Commission, case no. D049452 (4th Dist. Dec. 14, 2007), involves the issue of whether fees for pre-litigation activities may be recovered under California’s private attorney general fee provision, Code of Civil Procedure §1021.5. Tom’s post also discusses a key difference between attorney fee recovery under Section 1021.5 and recovery under its federal counterpart.

Tom knows about attorney fees in public interest cases, having been chief counsel for Pacific Legal Foundation.

1 Comment

Posted in: Attorney Fees

January 7, 2008

Post-Arbitration Petition Attorney Fee Order is Appealable

In Otay River Constructors v. San Diego Expressway, case no. D049612 (4th Dist. Jan. 7, 2008), the Court of Appeal holds that an order denying an award of contractual attorney fees to a party who succeeded in defeating a petition for arbitration in an action brought solely for that purpose is appealable.

The court reasoned that where an action is brought solely to enforce a contractual arbitration provision, then a defendant’s defeat of that petition is effectively a final judgment because it disposes of the only issue before the court, even if further litigation is contemplated.

Thus, an order denying an award of attorney fees to the party who successfully opposed the petition for arbitration is appealable as a “special order after final judgment” under Code of Civil Procedure section 1294, subdivision (e). Section 1294 controls, rather than Code of Civil Procedure section 904.1, subdivision (a)(2), which makes appealable an order made after a final judgment, because the former is part of legislatively created “comprehensive procedural scheme to govern arbitration proceedings.”

On the merits, the court of appeal reverses the order denying fees. Since the order denying the petition to compel arbitration disposed of the only issue before the court, the defendant was the “prevailing party” for purposes of Civil Code section 1717, notwithstanding that the parties may later litigate the substance of their dispute in a later action.

Be the first to comment!

Posted in: Appellate Jurisdiction, Appellate Procedure, Attorney Fees

Tags: Attorney Fees

January 4, 2008

My Attorney Fee Article in CITATIONS

Monkey at Typewriter I have an article in this month’s issue of CITATIONS, the monthly magazine of the Ventura County Bar Association, and for which I serve on the editorial board. The article is an expanded version of this post on Cruz v. Ayromloo, 155 Cal.App.4th 1270 (2d Dist. Oct. 3, 2007).

The article, titled“Pro Bono Attorney Fees” Is Not an Oxymoron, highlights the Cruz court’s dictum on the recovery of attorney fees in pro bono cases and examines the implications of that reasoning for future cases. The article appears at page 18 of the January 2008 issue of CITATIONS, which you can download as a PDF by clicking here.

1 Comment

Posted in: Articles by Greg May, Attorney Fees

Tags: attorney fees. attorneys fees

December 3, 2007

Split of Authority re Mandatory Relief under CCP § 473(b)

The first time I read Code of Civil Procedure section 473(b) and the practice guides about it, it horrified me. There I was, a very young lawyer at a BigLaw firm, reading that the court must grant relief from a default if the attorney swears by affidavit that the default was due to the mistake, inadvertence, surprise, or neglect of the attorney. I thought that surely, from time to time, some attorney has relied on this provision, admitting fault, only to have the court deny relief because the relief sought did not fall within the mandatory provision of section 473(b). Shudder.

But I never read about that actually happening until the decision in Hossain v. Hossain, case no. 196198 (2d Dist. Nov. 30, 2007). Plaintiff’s opposition to a motion to enforce a settlement agreement and his cross-motion to enforce it on different terms were both untimely, and the trial court refused to consider them because of their untimeliness. Plaintiff filed a section 473(b) motion for relief from the order enforcing settlement and appealed from the order denying relief.

The court notes a split of authority regarding the orders to which the mandatory relief provision of section 473(b) applies. Section 473(b) provides for mandatory relief from a “default entered by the clerk against his or her client, and which will result in entry of a default judgment,” or “default judgment or dismissal” provided that the default or default judgment or dismissal results from the attorney’s “mistake, inadvertence, surprise, or neglect,” the attorney so admits in an affidavit, and application is made within six months. The split concerns interpretation of “default.”

Plaintiff cited several cases holding that mandatory relief applies to situations that are the “procedural equivalent of a default.” Those cases found mandatory relief from failure to appear for trial, failure to appear for arbitration, and failure to oppose a summary judgment motion.

But the Second District Court of Appeal adopts the position of English v. IKON Business Solutions,
Inc. (2001) 94 Cal.App.4th 130, which, after examining the legislative history of the provision, held that mandatory relief applied only to defaults explicitly described in the statute, i.e., a default “entered by the clerk against his or her client, and which will result in entry of a default judgment.” Thus, it affirms the order denying relief.

I don’t know if this issue arises often enough to make this split of authority important enough for the Supreme Court to grant review. But it is certainly a significant split, not just for parties, but also for attorneys, who admit fault in the course of seeking relief. A scary proposition for those attorneys who are unsure of whether mandatory relief applies, even if the mistake, inadvertence, surprise or neglect was arguably excusable.

As a side note, the court only certified for publication the introductory paragraph, a section of its discussion, and the disposition. It did not certify the “Factual and Procedural Summary.” Oversight?

2 Comments

Posted in: California Procedure, Motions to Vacate

Tags: Motions to Vacate

November 21, 2007

Are Stipulated Judgments Appealable?

Well . . . yes and no. Or better yet, mostly no, and occasionally yes. And to discover the difference between those that are and those that aren’t, an excellent starting point is yesterday’s decision in Harrington-Wisely v. State of California, case no. B190431 (2d Dist. Nov. 20, 2007).

Plaintiffs in this case alleged 10 causes of action for damages and one for injunctive relief, alleging that their constitutional rights were violated by overly intrusive x-ray technology (more about that later) used by the California Department of Corrections to search visitors at certain state penitentiaries. The CDC successfully moved for summary adjudication on the class damages claims on the ground that damages were unavailable, leaving only the injunctive relief claim. The court then issued a sua sponte reconsideration order specifying that the summary adjudication order only barred plaintiffs’ class claims to the extent they sought damages. Thus, all claims remained active to the extent they sought injunctive or declaratory relief.

The parties then entered into a stipulated judgment that entered judgment on the claims insofar as they sought damages but, rather than dismiss, enter an injunction, or otherwise finally dispose of the equitable claims, merely referred to the parties’ agreement concerning them. Among other things, the CDC agreed to curtail use of the machines and not to reinstitute use without giving notice that would provide plaintiffs an opportunity to move for a preliminary injunction first.

The stipulated judgment set forth 16 issues for potential adjudication and provided that the court retained jurisdiction “to enforce the terms of the agreement.” It also stated that it was “only appealable as stipulated.”

Plaintiffs appealed on the basis that summary adjudication on the damages claims was improperly granted. The appeal was clearly contemplated by both sides when they entered into the stipulation.

Nonetheless, the court dismisses the appeal for lack of jurisdiction because the stipulated judgment is not an appealable final judgment. A judgment is “the final determination of the rights of the parties in an action or proceeding.” (Code Civ. Proc. § 577.) The failure of the stipulated judgment to determine the parties’ rights on the equitable claims, either by an injunction to perform as agreed, by dismissal, or otherwise, prevents it from being an appealable judgment for purposes of Code of Civil Procedure section 904.1, subdivision (a)(1). Regardless of the parties’ intent in drafting the stipulated judgment in this way, and regardless of their obvious intent to allow appeal on the damages claims, the court lacks jurisdiction as a result of this missing element.

The court goes on to address and reject several arguments raised by plaintiffs.

First, the appeal cannot be “saved” by liberally construing of the notice of appeal. To do so, there must be another appealable order or judgment from which the appeal can be deemed to have been taken. Here, there is no such appealable order or judgment.

Second, plaintiffs could not invoke the exception to the general rule against appealability of stipulated judgments. Recognizing that most stipulated judgments are not appealable, the court concludes that this one does not fall within the exception for judgments entered into to facilitate appeal after an adverse determination of a critical issue. While the summary adjudication on the class damages claims was indeed critical, the failure of the stipulated judgment to dispose of all claims prevents the exception from applying. In other words, even the exception applies only to stipulated judgments that are final. Had plaintiffs, for example, dismissed their equitable claims as part of the stipulated judgment, thereby disposing of all claims, they could have invoked this exception.

Finally, plaintiffs unsuccessfully argued that the 16 issues for potential adjudication anticipated nothing more than proceedings to enforce the stipulation. The court finds these were complex questions of constitutional and statutory law that related to litigation of the equitable claims, not enforcement.

Now, about that technology. The x-ray machines were so sophisticated that they produced “a spectral-like computer image of the body, including an outline of breasts, genitalia and folds of skin.”

This juicy fact led to some great, funny posts. The post at Legal Pad includes a photograph that demonstrates the imaging capability of the x-ray machine (quite amazing) and made me chuckle. The post at California Appellate Report had me laughing out loud.

And I write about appellate jurisdiction. I am such a geek.

UPDATE (11/23/07): My Dad was looking at this post (thanks for the traffic, Dad!) and told me that the links in the post at California Appellate Report are a bit . . . racy. You might want to avoid them. What I found so funny about the post was in the post itself. Wrote Professor Martin: “I mean, sure, if I enter a prison, and am carrying a package, you can x-ray my package. But x-raying — and looking at the shape and size — of my package?! Crikey!”

Be the first to comment!

Posted in: Appellate Jurisdiction, Appellate Procedure, Judgment

Tags: Appellate Jurisdiction, Appellate Procedure, Judgment

Appellate Attorney Greg May on Practice and Developments in the Appellate Courts of California

Category Archives: Post-Trial Practice