March 2020 Update
In Hill v Volkswagen Group of Am., Inc. (In re Volkswagen “Clean Diesel”Litig.) (9th Cir 2019) 914 F3d 623, the Ninth Circuit held that non-designated class counsel in federal class actions cannot recover their fees from the settlement fund unless they show that their work created a benefit to the class, not just to their clients. See §1.21.
Eligibility and Entitlement to Fees
In Close v Sotheby’s, Inc. (9th Cir 2018) 909 F3d 1204, the Ninth Circuit held that even though the federal Copyright Act preempts California’s Resale Royalties Act (CRRA) (CC §986), the CRRA’s fee-shifting statute was not preempted for claims brought solely under the state statute. See §2.5. The court also held that defendant was the prevailing party when all fee-shifting claims were won on appeal and only a “sliver” remained in the trial court. See §2.93.
In Wishtoyo Found. v United Water Conserv. Dist. (CD Cal, Mar. 5, 2019, No. CV 16–3869–DOC (PLAx)) 2019 US Dist Lexis 39927, the district court ruled that in-house counsel who actively litigated the case with outside counsel were entitled to fees. See §2.25.
In Scott v City of San Diego (2019) 38 CA5th 228, the court of appeal held that the 2019 amendment to Govt C §12965(b), which prevents CCP §998 cost-shifting unless plaintiff’s case was frivolous, is retroactive because it was a clarification of existing law. See §2.6.
In Dane-Elec. Corp., USA v Bodokh (2019) 35 CA5th 761, the court of appeal held that Lab C §218.5’s limitation on fees for prevailing defendants prevails over contractual fee claims, distinguishing Richmond Compassionate Care Collective v 7 Stars Holistic Found. (2019) 33 CA5th 38, in which the court held that the defendant in a Cartwright Act case who prevailed on an anti-SLAPP motion was entitled to fees, even though the Cartwright Act provides fees only to plaintiffs. See §2.9.
In LandWatch San Luis Obispo County v Cambria Community Servs. Dist. (2018) 25 CA5th 638, the court of appeal held that a public entity’s costs for preparing the administrative record under CCP §1033.5 can include fees for attorneys’ time. See §2.26.
In Economy v Sutter East Bay Hosps. (2019) 31 CA5th 1147, the court of appeal denied fees under Bus & P C §809.9 (bad faith litigation of mandamus action to restore hospital privileges) because the hospital’s defense, taken as a whole, was not so completely lacking in objective merit that no reasonable attorney would have thought it to be tenable. See §2.83.
In de la Carriere v Greene (2019) 39 CA5th 270, the court of appeal held that defendant was the prevailing party in a contract action when he defeated plaintiff’s claims and obtained relief on a cross-complaint, which resulted in a net judgment in defendant’s favor. See §2.88.
In Linton v County of Contra Costa (2019) 31 CA5th 628, the court of appeal held that, because recovery of attorney fees under California’s Disabled Persons Act (CC §54.3(a)) requires a finding of liability, plaintiff’s acceptance of a CCP §998 offer that was silent on liability did not support a fee award, either under the Act or under the offer which provided for “attorney’s fees allowed by law.” See §2.95.
In Roe v Halbig (2018) 29 CA5th 286, the court of appeal held that under CCP §1987.2(c) (fees for quashing Internet records subpoena in meritless action related to online speech) a defendant must prove that the plaintiff’s claim lacked merit, even if the case was dismissed before any adjudication. See §2.98.
The Third and Fifth appellate districts held in Bustos v Wells Fargo Bank (2019) 39 CA5th 369 and Hardie v Nationstar Mortgage LLC (2019) 32 CA5th 714 that a borrower who secured a temporary restraining order under the California Homeowner Bill of Rights obtained “injunctive relief” and could be considered prevailing parties under CC §2924.12(h). See §2.105.
In Independent Living Ctr. of S. Cal., Inc. v Kent (9th Cir 2018) 909 F3d 272, the Ninth Circuit held that a CCP §1085 claim alleging violation of federal law and removed to federal court endured as a state law claim, permitting the trial court to award CCP §1021.5 fees. See §3.33.
In City of Oakland v Oakland Police & Fire Retirement Sys. (2018) 29 CA5th 688, the court of appeal held that intervenor retired employees association was entitled to fees under CCP §1021.5 in pension litigation against the City of Oakland. The factors supporting the fee award were the relative poverty of the association and its members, the fact that it largely achieved its goals of avoiding pension cuts, and that the litigation enforced important rights affecting the public interest. See §3.4.
In Friends of Spring St. v Nevada City (2019) 33 CA5th 1092, the court of appeal held that plaintiff was successful on an issue of public interest that resulted in a substantial benefit to city residents by suing to enforce a zoning law, and was entitled to fees under CCP §1021.5. See §3.13.
In Lafferty v Wells Fargo (2018) 25 CA5th 398, the court of appeal affirmed a denial of CCP §1021.5 fees sought by purchasers of a defective motor home pursuant to an installment contract that the seller assigned to defendant Wells Fargo. The defendant had done nothing to adversely affect the public interest and plaintiffs failed to present evidence that would otherwise support an award of fees. See §3.25.
In Citizens for Amending Proposition L v City of Pomona (2018) 28 CA5th 1159, the court of appeal awarded the plaintiffs attorney fees under CCP §1021.5 after they successfully sought to have a local anti-billboard proposition enforced, thereby vindicating an important public interest. See §3.46.
In Boatworks, LLC v City of Alameda (2019) 35 CA5th 290, the court of appeal affirmed an award of CCP §1021.5 attorney fees to a developer challenging a development impact fee despite a limited reversal on the merits. The record supported a conclusion that a large class of persons would benefit and that the necessity and burden of private enforcement made the award appropriate. See §3.46.
In Hawkins v City of Los Angeles (2019) 40 CA5th 384, the court of appeal affirmed an award of CCP §1021.5 fees to whistleblowers who enforced public’s right to fair hearings when contesting parking violations. See §3.46.
In Stratton v Beck (2018) 30 CA5th 901, the court held, citing this text as “a leading treatise,” that appellate fees may be awarded under Lab C §98.2 to an employee who defeats an employer’s appeal of an earlier trial court award, even though the appellate decision directed the parties to “bear their own costs of appeal.” See §§3.96, 12.4.
In John Russo Indus. Sheetmetal, Inc. v City of Los Angeles Dep’t of Airports (2018) 29 CA5th 378, the court of appeal held a contractor was entitled to fees for defending against a city agency’s frivolous False Claims Act cause of action, even though the agency was entitled to costs based on a nominal recovery under its contract claim. See §3.127.
Fee Awards Based on Contractual Fee Clauses
In Dane-Elec Corp., USA v Bodokh (2019) 35 CA5th 761, the court held that Lab C §218.5’s limitations on fees for prevailing defendants prevailed over the fee clause in a promissory note when the employee’s wage claim, raised in a cross-complaint, was not brought in bad faith and was inextricably intertwined with the contract claim. See §4.8.
In Cheema v L.S. Trucking, Inc. (2019) 39 CA5th 1142, the court held that language stating a fee clause applies to “all claims ‘arising from or [in] relation to’ the Agreement” covered arguably non-contract claims; and in Pont v Pont (2018) 31 CA5th 428, the court held that a stipulation providing for fees if a party was “forced to seek Court intervention” and “in connection with” the contract encompassed tort claims. See §4.32.
Attorney Fees Awarded as Sanctions
In Xue Lu v United States (9th Cir 2019) 921 F3d 850, the Ninth Circuit extended Goodyear Tire & Rubber Co. v Haeger (2017) ___ US ___, 137 S Ct 1178 to the Equal Access to Justice Act’s “bad faith” statute (28 USC §2412(b)), holding that the trial court’s award of fees as a discovery sanction must identify the misconduct and award only those fees the claimant would not have incurred “but for” the misconduct; but when it is impossible to sort out the work caused by the opponent’s bad faith, all of the fees incurred may be awarded. See §6.55.
In Workman v Colichman (2019) 33 CA5th 1039, the court of appeal awarded fees against the defendant under CCP §907 as sanctions for an interlocutory appeal from denial of an anti-SLAPP motion taken solely for purposes of delay. See §6.32.
In United Grand Corp. v Malibu Hillbillies, LLC (2019) 36 CA5th 142, a commercial rent dispute, the court of appeal affirmed an order striking the plaintiffs’ prayer for attorney fees as a sanction for their litigation misconduct. See §6.59.
Attorney Fees as Damages
In Brown v Mortenson (2019) 30 CA5th 931, the court of appeal held that a party is not entitled to jury trial on a statutory fee claim under the Confidentiality of Medical Information Act (CC §56.35). See §7.25.
Methods of Fee Calculation
In Culbertson v Berryhill (2019) ___ US ___, 139 S Ct 517, the U.S. Supreme Court held that 42 USC §§406(b) imposes a 25 percent cap on fees for representing a Social Security claimant before the Social Security Administration and a separate 25 percent cap for representing the claimant in court. The cap only limits fees recoverable from the recipient, however, not the amount the court can award for the attorney’s services under a statute like the Equal Access to Justice Act. See §§8.27, 8.37.
Determining the Lodestar
In Ibrahim v United States Dep’t of Homeland Sec. (9th Cir 2019) 912 F3d 1147 (en banc), the Ninth Circuit discussed at length the “bad faith” standard permitting fees at market-based rates under the Equal Access to Justice Act (5 USC §504, 28 USC §2412). See §9.100.
In Roberts v City & County of Honolulu (9th Cir 2019) 938 F3d 1020, a 42 USC §1983 case, the Ninth Circuit held it was error for the trial court to disregard plaintiff’s supporting declarations entirely, which were unrefuted given the absence of countervailing evidence, and to rely solely on outdated prior awards to plaintiff’s counsel. See §§9.9, 9.121.
Examples of fees awarded over objections that the hours claimed were duplicative include Gordon v Los Angeles Unified Sch. Dist. (CD Cal, June 17, 2019, No. 2:18–CV–00919–CAS–JCx) 2019 US Dist Lexis 101847 (objection that two experienced attorneys conducted single administrative hearing); Wishtoyo Found. v United Water Conserv. Dist. (CD Cal, Mar. 5, 2019, No. CV 16–3869–DOC (PLAx)) 2019 US Dist Lexis 39927 (objections to inter-office communications); and Castaneda v Ocwen Loan Servicing, LLC (CD Cal, Nov. 21, 2018, No. ED CV 16–0735 FMO (DTBx)) 2018 US Dist Lexis 198852 (objection for having two partners handle case). See §9.76.
Department of Fair Employment & Hous. v Law Sch. Admission Council (ND Cal, Nov. 5, 2018, No. 12–cv–01830–JCS) 2018 US Dist Lexis 189191, the court of appeal held that fees incurred in negotiations before filing a contempt motion were compensable; however, time spent in investigation before the dispute arose were properly denied. See §9.7.
In Roe v Halbig (2018) 29 CA5th 286, the court of appeal criticized the trial court’s reliance on how much time a motion “should” take without regard for any prior precedent. §9.4.
In Berkeley Cement, Inc. v Regents of Univ. of Cal. (2019) 30 CA5th 1133, the court held that time spent in voluntary mediation may be compensable under CCP §1033.5(c)(4), as long as it was reasonably necessary to the conduct of the litigation. See §9.9.
In Cheema v L.S. Trucking, Inc. (2019) 39 CA5th 1142, the court of appeal approved compensation for time spent on unsuccessful motions for summary judgment and for judgment on the pleadings. See §9.9.
In Sweetwater Union High Sch. Dist. v Julian Union Elementary Sch. Dist. (2019) 36 CA5th 970, the court of appeal affirmed fees under CCP §1021.5, holding that the award could be based on counsel’s declarations without production of detailed billing records. See §9.83.
In Robles v Employment Dev. Dep’t (2019) 38 CA5th 191, as compensation for delay in a long case, the court of appeal directed the trial court to award fees at the current prevailing rates or, alternatively, to use lower hourly rates but award interest from the date the attorneys’ services were rendered. See §9.111.
Adjustments to the Lodestar
In Frank v Gaos (2019) 586 US ___, 139 S Ct 1041, the U.S. Supreme Court held that the fact that a settlement provided only cy pres relief was not a reason to reduce the fee award. See §10.56.
In Espinosa v Ahearn (In re Hyundai & Kia Fuel Econ. Litig.) (9th Cir 2019) 926 F3d 539 (en banc), the Ninth Circuit affirmed multipliers of 1.5521 and 1.22 as modest or in line with others approved by the court in matters in which the total settlement value was difficult to estimate. See §10.8.
In Cadence Design Sys. v Pounce Consulting, Inc. (ND Cal, June 26, 2019, No. 17–cv–04732–PJH) 2019 US Dist Lexis 107205, the district court applied a 2.8 risk multiplier in a contract case to match the contingent fee due under the retainer agreement. See §10.40.
In Warren v Kia Motors Am., Inc. (2018) 30 CA5th 24, the trial court abused its discretion by applying a 33 percent negative multiplier to make the fee award proportionate to the modest damages award. See §10.11.
Fees for Work in Arbitration
In Heimlich v Shivji (2019) 7 C5th 350, the California Supreme Court held that a request for CCP §998 costs was timely if filed with the arbitrator within 15 days of the final award. The arbitrator’s belief that an arbitrator lacks jurisdiction to consider the costs request after the award was incorrect but was not grounds for relief. See §14.9.
In Cohen v TNP 2008 Participating Notes Program, LLC (2019) 31 CA5th 840, the court followed the Safari line of cases to hold that the arbitrator has the authority to interpret the contract as giving the arbitrator discretion to deny fees to the prevailing party under principles of equity. See §14.7.
Collecting Fee Awards
In Mancini & Assocs. v Schwetz (2019) 39 CA5th 656, an attorney who recovered a fee award, but whose client released the judgment debtor, could recover fees from the judgment debtor for interference with the attorney’s retainer agreement and lien rights. See §15.2.
Appellate Review of Fee Orders
In Cheveldave v Tri Palms Owners Ass’n (2018) 27 CA5th 1202, the court of appeal held that a homeowner was “aggrieved” by a fee award, and had standing to appeal it, even though he was no longer a member of the defendant homeowner association. See §16.12.
Appellate courts have reversed fee awards when the trial court did not adequately articulate its findings on elements of the award. In Warren v KIA Motors Am., Inc. (2018) 30 CA5th 24, the trial court failed to explain why a 33 percent negative multiplier was chosen; and in Roe v Halbig (2018) 29 CA5th 286, it was unclear how the trial court arrived at the fee award and it may have misread the law on paralegal and travel fees. See §16.24.