Respondents use the “abuse of discretion” standard for all it’s worth when defending against appeals, and they should. Often, it’s one heck of a shield. But there are limits to relying on this standard of review, and the Court of Appeal will reverse in appropriate circumstances. One such example is last week’s decision in McKenzie v. Ford Motor Co., case no. G049722 (4th Dist., July 10, 2015). Plaintiff rejected one settlement offer in this “lemon law” case, but settled a few months later. The settlement was entered as a judgment. It required Ford to buy back the “lemon” automobile and allowed the plaintiff the option of accepting payment of $15,000…
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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…
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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 defendant sees a million dollar attorney fee award evaporate because the underlying judgment is reversed?
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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…
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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…
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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,…
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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.
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Blogroll Addition: California Attorney’s Fees
Regular readers know I am fond of covering attorney’s fee cases. Now there’s a blog about nothing but California attorney’s fees, and it’s called, oddly enough, California Attorney’s Fees. Started less than a month ago, California Attorney’s Fees is a comprehensive blog that reports on both published and unpublished cases and includes several categories related to the appeal of fee awards, including appealability, appeal sanctions, and deadlines. And, they invite you to help add more. California Attorney’s Fees demonstrates that it is not only newer lawyers who are blogging. The junior of the two contributors, Marc Alexander, has 25 years of law practice under his belt, and his co-blogger, Mike…
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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 most 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…
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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…
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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…
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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.
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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…
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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…
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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…
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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…
- Appellate Procedure, Attorney Fees, California Procedure, Post-Trial Practice, Standard of Review, Statutory Construction
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…
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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…
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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.
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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…
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My Attorney Fee Article in CITATIONS
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. You can download a PDF copy of the article here.
- Appellate Jurisdiction, Appellate Procedure, Attorney Fees, Costs, Federal Courts, Federal Procedure, Removal
Appeal after Remand to State Court: Was Removal Reasonable?
The Ninth Circuit reminds us in Gardner v. MEGA Life & Health Ins. Co., case no. 06-55045 (9th Cir. Nov. 19, 2007), that even though no appeal lies from an order remanding a removed action to state court, the removing defendant may appeal an order to pay costs and fees imposed in connection with the remand under 28 U.S.C. § 1447(c). Here, it pays off. MEGA was ordered to pay costs and fees when the action was remanded. It claimed the only non-diverse defendant, an individual, had been fraudulently joined for the purpose of defeating diversity jurisdiction because the statute of limitations had run as to that defendant. Applying the…
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Know Who Your Client Is
When you’re suing a client for your attorney fees, it might be helpful to know who your client is. A law firm’s failure to establish that prevents its recovery of fees in Shimko v. Guenther, case no. 05-16847 (9th Cir. Oct. 12, 2007). The Guenthers were limited partners in two limited partnerships (“the CORF entities”). When the CORF entities were sued, the Guenthers and other owners sought counsel regarding their potential personal liability for the liabilities of the CORF entities. On that much, the parties agreed. But the Guenthers claimed that the CORF entities were the clients, and that, as limited partners, they were not liable for fees. The attorneys…
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Important Update re Pro Bono Attorney Fees
I’ve addded a very important update to my post entitled The Pro Bono Road to Riches! The update clarifies that the court’s discussion in Cruz v. Ayromloo, case no. B190959 (2d Dist. Oct. 3, 2007) regarding the availability of attorney fees for pro bono representation is dictum (though an unusually detailed and lengthy example of such) and notes an important distinction between Cruz and earlier California cases upholding such fee awards. Both points are important to keep in mind. That post has generated a lot of attention. It’s been linked to by two very prominent law blogs, Overlawyered and The UCL Practitioner. It also earned me a phone call from…
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$11,000 Per Hour Attorney Fee Request
Since attorney fee issues have been highlighted here lately, I thought some of you might be interested in a fee request based on an $11,000 hourly rate. You can read all about it at WSJ.com Law Blog, and you might not find it as outrageous as it first sounds . . .
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“Big Law” Comes to a Small Town
Last week’s attorney fee case of Nichols v. City of Taft, case no. F051147 (5th Dist. Oct. 2, 2007), has been written about by several blogs — Legal Pad, The Opening Brief, and California Appellate Report among them — so I’ll summarize it very briefly before giving my take. The plaintiff had hired some “big gun” attorneys from the big city to litigate her employment case in a small town. The case was settled, and the settlement provided for attorney fees to be fixed by the court. The essential holdings are that (1) before seeking statutory attorney fees in excess of fees that would be charged in the local community,…
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The Pro Bono Road to Riches!
Don’t be shy about asking for attorneys fees. Don’t be shy to ask for more than 100 times the suggested schedule in the local rules. Don’t be shy to ask for an amount that far exceeds the amount of damages awarded to your client. Don’t be shy about anything, including the fact that you’re asking for several hundred thousand dollars in fees for a case you took on pro bono. Had O’Melveny and Myers been more forward, they might have received more than the roughly $124,000 in fees approved by the trial court and affirmed by the Court of Appeal in Cruz v. Ayromloo, case no. B190959 (2d Dist. Oct.…
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Ninth Circuit: Anticipated Attorney Fees on Appeal Can be Considered in Calculation of Appeal Cost Bond — Sometimes
In Azizian v. Wilkinson, case no. 05-15847 (August 23, 2007), the Ninth Circuit faced, for the first time, an issue on which other circuits have split: “whether, or under what circumstances, appellate attorney’s fees are ‘costs on appeal’ that a district court may require an appellant to secure in a bond ordered under Federal Rule of Appellate Procedure 7.” It provides its conclusion at the outset of the opinion: We conclude that a district court may require an appellant to secure appellate attorney’s fees in a Rule 7 bond, but only if an applicable fee-shifting statute includes them in its definition of recoverable costs, and only if the appellee is…
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The Addition of Fees and Costs to a Judgment Does Not Restart The Clock on Time to Appeal from the Judgment
Torres v. City of San Diego, case no. D049111 (4th Dist. July 25, 2007, ordered published August 17, 2007), presents some curiously unique facts. The City of San Diego approved a resolution for the indemnification of pension board members against amounts incurred by them in actions relating to their scope of performance as board members. The board members later found themselves in need of indemnification — because of two lawsuits brought against them by the City! When their demand for indemnification under the resolution and under Government Code section 995 was refused, the members sued the city. The members prevailed on summary judgment, and the judgment entered on the motion…
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Attorney Fees in Public Interest Case
I added Anthony “Tom” Caso’s “The Opening Brief” to my “Appellate Blogs” blogroll a few weeks ago. Tom is a Sacramento appellate attorney and new appellate blogger. (By the way, Tom, welcome to the blogosphere.) Today, he has an excellent post entitled “Can Fees Exceed Damages?” He discusses yesterday’s decision in Estrada v. Fedex Ground Package System, Inc., case no. B189031 (2d Dist. August 13, 2007), in which the Court of Appeal reverses an attorney fee award for plaintiff and remands for reconsideration of the amount. This was no “small potatoes” case. From the opinion: Estrada’s motion asked for $619,691 in costs and $6,789,325 for his attorneys’ fees, a total…