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.
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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…
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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…
- 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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Potentially Void Judgment Reversed on the Merits
Here’s a post I’ve been saving for a time where I’m too busy to spend much time on new content. I may get a post up later in the day, but in the meantime, I’ll get on my soapbox about why I think the Court of Appeal blew it on a jurisdictional question in Holland v. Union Pacific Railroad Co., case no. C052833 (3d Dist. July 30, 2007, certified for publication August 29, 2007). The case came up on appeal from a summary judgment granted on the ground that the plaintiff’s administrative complaint was untimely. The timeliness of the administrative complaint turned on whether the Department of Fair Employment and…
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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…
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Third Party Beneficiary to Contract May Invoke Attorney Fee Provision
A few days ago, in my post “Of Walnut Trees and Attorney Fees,” I took issue with the Third District Court of Appeal’s holding that a party suing on a contract that it alleges does not include an attorney fee provision is not entitled to recover attorney fees notwithstanding that the defendant alleges that additional written terms of the contract contain an attorney fee provision. Yesterday, a different panel of the Third District Court of Appeal and I agree on the attorney fee issue in Laduca v. Polyzos, case no. C050757 (July 16, 2007). The issue is whether the property owner, as a third party beneficiary of the contract between…
- Appellate Procedure, Attorney Fees, California Court of Appeal, California Procedure, Post-Trial Practice, Standard of Review
Of Walnut Trees and Attorney Fees
Two interesting and “bloggable” issues are raised and decided by the Third District Court of Appeal in Brittalia Ventures v. Stuke Nursery Co., Inc., case no. C0478374 (July 10, 2007). One regards the proper standard of review when the terms of a contract are disputed. The second, and more interesting, concerns post-trial motions for attorney fees. Brittalia purchased walnut trees from Stuke and later sued for breach of warranty and other causes of action based on allegations that many of the trees were either the wrong variety or diseased. There was no single, clearly identified written contract governing the sale. The parties had a course of dealing during which they…
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Raiders Lose on Independent Review of Order Granting New Trial
Congratulations! The court has granted your motion for a new trial! Now, just pray the trial judge doesn’t screw it up. Yesterday’s Supreme Court opinion in The Oakland Raiders v. National Football League, case no. S132814 (July 2, 2007) demonstrates again that no winner of a new trial can have confidence in the order granting the new trial unless the court specifies its reasons in the order or files its specification of reasons within 10 days of the order, as required by Code of Civil Procedure section 657. In this case, the court’s failure to specify its reasons results in a different standard of review on appeal that effectively shifts…
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Unitherm Precludes Plain Error Review, Too
Watch rule 50 of the Federal Rules of Civil Procedure! In Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc. (2006) 546 U.S. 394, the Supreme Court held that a party who fails to renew a Rule 50(a) pre-verdict motion for judgment as a matter of law by moving under Rule 50(b) post-verdict waives any review of the sufficiency of the evidence. Prior to Unitherm, an appellant in the Ninth Circuit likewise waived sufficiency of the evidence review in such circumstances, but the Court of Appeals could review for plain error on the face of the record that would result in a “manifest miscarriage of justice” if not corrected See Patel v.…
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The Doctrine of Implied Findings is Serious Business
Under the doctrine of implied findings, the Court of Appeal will presume that the trial court made all findings necessary to support the judgment. The only way for the appellant to avoid that presumption is to request a statement of decision pursuant to Code of Civil Procedure section 632, and then to object, pursuant to Code of Civil Procedure section 634 (either by objection prior to entry of judgment or by statutory motion for new trial or motion to vacate the judgment), to any statement that omits necessary findings or contains ambiguous findings. There is a lot that can be written about this process, but this post is limited to…
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Time Travel Exists . . . if You’re a Judge
Code of Civil Procedure section 377.34 limits damages in the case of actions by a decedent’s personal representative to “the loss or damage that the decedent incurred before death.” So what to do if you’re widowed days after a jury verdict awards your husband millions in damages for prospective loss but before judgment is entered? You ask the court to invoke the judicial equivalent of time travel: the entry of an order nunc pro tunc to a date before your husband died. In Cadlo v. Metalclad Insulation Corp., case no. A111353 (June 11, 2007), the First District Court of Appeal holds that a valid exercise of the court’s power to…
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Anti-SLAPP Attorney Fee and Costs Application is Timely any Time Prior to Final Judgment
In Carpenter v. Jack in the Box Corp., case no. B188707 (May 25, 2007) the Second District Court of Appeal holds that an application for anti-SLAPP attorney fees and costs under Code of Civil Procedure section 425.16(c) by a plaintiff who prevails against an anti-SLAPP motion is timely so long as it is made before entry of final judgment in the action, even if it is not made until after resolution of the appeal of the order denying the anti-SLAPP motion. Carpenter brought an action for wrongful termination, defamation, and other tort and contract claims related to the termination of employment by Jack in the Box. Jack in the Box…
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Court Upholds $143,809 in Costs Awarded for Preparation of a Single Exhibit
It sounds crazy in the abstract, not so much in the context of the case decided in the Fifth District of the California Court of Appeal, El Dorado Meat Co. v. Yosemite Meat and Locker Service, Inc., ___ Cal.Rptr.3d ___, case no. F049334 (May 4, 2007). The court characterized the action as a “complex suit” in which plaintiff alleged a variety of business torts including antitrust, RICO and unfair competition claims. The single exhibit was actually “a 37-page document containing charts and graphs that were projected on a screen during trial” and was prepared from 160,000 pages of business and financial records produced by the parties in discovery. The costs…