July 2010

Equity: Common Fund Debate . . . . Lodestar Or Percentage Of Recovery . . . . U.S. District Court Opts For Lodestar

Cases: Class Actions, Cases: Common Fund, Cases: Equity, Cases: Lodestar

USDJ Chooses Lodestar in Wage/Hour Class Action Fee Recovery Settlement.      Our friend and fellow blogger H. Scott Leviant has reported on Anderson v. Nextel Retail Stores in his June 30, 2010 post at The Complex Litigator website.      There, U.S. District Judge Stephen Wilson, in a common fund wage/hour class action settlement, chose the […]

In The News . . . . L.A. Pays Fee Recovery As Part of Firefighter Dog Food Dispute Settlement And Colfax Complains About Citizens Suit Fees In Clean Water Act Litigation

In The News

City of L.A. Ponies Up An Additional $550,000 in Attorney’s Fees and $380,000 in Interest on Jury Award/Fee Award to Two White Fire Captains.      You may have seen media coverage of the 2004 firehouse incident in which Los Angeles firefighter Tennie Pierce, who was known as “Big Dog,” was fed dog food in his

Civil Rights: Failure To Offer A Prelitigation Settlement To Defendant, For A Second Time, Did Not Justify Fee Recovery To Disabled Plaintiff Under “Catalyst Theory”

Cases: Civil Rights

  Second District, Division 1 Follows Suit With Division 8—and Relative to the Same Plaintiff.      On July 1, 2010, we examined Mundy v. Neal, where the Second District, Division 8—in an opinion authored by Justice Ashmann-Gerst—denied fees to a plaintiff claiming fees as a “catalyst” under Civil Code section 55. Well, now Division 1

CCP Section 998: Making A 998 Offer After Filing A Motion To Quash For Lack of Jurisdiction Does Not Constitute A “General Appearance”

Cases: Quashing/Lack of Jurisdiction, Cases: Section 998

Fourth District, Division 1 Construes the Type of “Acts” Which Will Waive Jurisdictional Challenges.      For our purposes, the Fourth District, Division 1 has decided that Italian defendants’ making of a pretrial offer under Code of Civil Procedure section 998 does not waive motion to quash jurisdictional challenges, if the 998 offer was made after

Civil Code Section 1717: Easement Dispute Did Invoke Fee Clause In Trust Agreement Between Parties

Cases: Homeowner Associations, Cases: Section 1717

  Third District Reverses Denial of Fee to Prevailing Party.      Ghandour v. Tahoe Sands Time Share Owners Association, Case No. C056395 (3d Dist. July 1, 2010) (unpublished) involved a trial court’s grant of a permanent injunction to plaintiff as against a defendant time share owners association, with the injunction prohibiting association from blocking her

Civil Code Section 1717: $281,058 Fee Award To Prevailing Party Affirmed Even Though Damage Award Only $60,500

Cases: Indemnity, Cases: Reasonableness of Fees, Cases: Section 1717

  Contentiousness of Opponent Was One Factor Justifying the Hefty Award.      Defendant in a contract dispute with plaintiff won $60,500 in damages, beating a Code of Civil Procedure section 998 pretrial offer of $62,001 (after preoffer costs were added in) made by plaintiff. Then, due to a contractual fees clause in the operative agreement,

Private Attorney General Statute: Sixth District Issues Scholarly Unpublished Decision Analyzing CCP Section 1021.5 Factors

Cases: Private Attorney General (CCP 1021.5)

  Affirms $175,000 Fee Award Assessed Against City and Developer Jointly.      Court House Plaza Co. v. City of Palo Alto, Case Nos. H032872/H033204 (6th Dist. June 30, 2010) (unpublished) is a gem of a decision for anyone dealing with a fee award under California’s private attorney general statute, Code of Civil Procedure section 1021.5. 

Wrongful Pretrial Attachment Fee Shifting Provision: It Only Operates Against Party Causing A Wrongful Attachment

Cases: Special Fee Shifting Statutes

  $13,380.24 Fee Award Against Party Whose Property Was Attached Had to be Reversed.      In Hirsch v. Reed, Case Nos. C060631/C061956 (3d Dist. June 30, 2010) (unpublished), a trial court awarded attorney’s fees of $13,380.24 against a plaintiff losing an action for various torts found primarily barred by the litigation privilege. Plaintiff’s suit also

Civil Rights: Attorney’s Fees Recovery Denied To Plaintiff Dismissing Disability Claim Because Plaintiff Was Not A Prevailing Party Under “Catalyst Theory”

Cases: Civil Rights

  Lack of Prelitigation Demand for Corrective Action Was Damning.      Here is one for practitioners that either prosecute or defend disability accommodation claims, which frequently revolve around the attorney’s fees that can be recouped by their attorneys. Attorneys did not do so well in this case.      In Mundy v. Neal, Case No. B219711

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