June 2012

Mediation: Defense Claiming Fee Recovery Under CAR Form Contractual Clause Cannot Refuse Mediation Based On Plaintiff’s Initiating Suit Without Previously Requesting Mediation or Based on Plaintiff’s Purported Need For Further Discovery

Cases: Mediation

  Defense Award of Fees Is Reversed, Because Alternative Phrasing of CAR Form Clause Means Defense Must Attempt to Mediate Or Be Disqualified From Fee Recovery After Plaintiff’s Request for Mediation.      Okay, folks, in Frei v. Davey, 124 Cal.App.4th 1506 (2004), our local appellate court (authored by Justice Fybel) considered the CAR form contractual […]

Appealability/Reasonableness Of Fee Double: Failure To Appear At OSC Waived Appellate Challenge To Fees And Trial Court Did Provide Reasonable Explanation For Fee Award

Cases: Appealability, Cases: Reasonableness of Fees

  Marriage of Howard, Case No. H036510 (6th Dist. June 6, 2012) (Unpublished).      In this one, ex-husband waived any challenge to a $16,162 fee award because he failed to appear at an OSC and oppose the request. This was found to be a forfeiture based on his failure to object to the an error

POOF!/Family Law Two-Fer: Reversal Means $107,560 Fee Award Goes Away And $50,000 Needs/Sanction Award Against Husband Hiding Finances Sustained

Cases: Family Law, Cases: POOF!

  Apex LLC v. Sharing World, Inc., Case No. G045321 (4th Dist., Div. 3 May 31, 2012; Posted June 5, 2012) (published).      Justice Fybel, on behalf of a 3-0 panel of our local appellate court, reversed bench trial results in an opinion involving many UCC issues, such as gap fillers for contract formation, confirmation

Fee Clause Interpretation/SLAPP/Sanctions: 25% Contractual Fee Recovery-Capped Clause For Prosecuting Activities Held Not To Apply To Defense Activities

Cases: Fee Clause Interpretation, Cases: Sanctions, Cases: SLAPP

  Also, Sanctions Against Attorney Upheld Under CCP § 128.7, But Not SLAPP Statute.      ASAP Copy and Print v. Ringgold, Case Nos. B224295/B225702 (2d Dist., Div. 7 June 4, 2012) (unpublished) was an incredible donnybrook over a fairly minor dispute involving a photocopier lease/maintenance agreement. The amount of time, trouble, and fees that is

Private Attorney General/Reasonableness Of Fees: $382,189.73 Fee Award To CEQA Winners, Including Attorney Who Represented Herself, Was Proper Under CCP § 1021.5 Because Trope Prohibition Did Not Apply

Cases: Private Attorney General (CCP 1021.5), Cases: Reasonableness of Fees

  $300/Hour Is Reasonable Rate for Sonoma Practitioners.      Healdsburg Citizens For Sustainable Solutions v. City of Healdsburg, Case No. A130374 (1st Dist., Div. 4 June 4, 2012) (certified for partial publication; 1021.5 Trope fee discussion published and rest unpublished) involved the City’s appeal of $382,189.73 in fees awarded to CEQA winners, including an attorney

Arbitration/Prevailing Party: $37,500 Interim Contract Fee Award Sustained Despite The Fact There Was No Final Judgment At Fee Award Time

Cases: Arbitration, Cases: Prevailing Party

  Difference Between This and Frog Creek: Final Award Occurred After Interim Fee Award, So There Was Finality.      On May 27, 2012, we reported on the First District, Division 5’s published opinion in Frog Creek Partners, LLC v. Vance Brown, Inc., 2012 Cal.App. LEXIS 625 (2012), where the appellate court concluded that the trial

Appealability/Family Law: $1,000 Sanctions Order Appeal Was Dismissed Because Correct Course Was Appeal From Final Judgment

Cases: Appealability, Cases: Family Law

  Appeal Was Premature.      In Marriage of Garcia, Case No. B231782 (2d Dist., Div. 3 June 1, 2012) (unpublished), ex-wife appealed from a $1,000 “sanctions” order under Family Code section 2107(c), which does allow for imposition of attorney’s fees for a family law litigant not complying with family law provisions. (Apparently, she failed to

Pending Cases: U.S. Supreme Court To Determine If Prevailing Defendant Can Be Awarded Costs Against Losing Plaintiff In FDCPA Case

Cases: Cases Under Review, Cases: Costs

  FRCP 54(d) Was Basis For the Cost Award in Tenth Circuit Decision.      On Tuesday, May 29, 2012, the United States Supreme Court granted certiorari from the Tenth Circuit’s decision in Marx v. General Revenue Corp., U.S. No. 11-1175, to determine whether a prevailing defendant can be awarded routine costs (not attorney’s fees) against

Requests For Admissions: Appellate Remittitur Required Separate Consideration Of Post-Appeal Consideration Of Appellate Fees, Not Just Remand Fee Issues

Cases: Requests for Admission

  Appellate Follow-up to Earlier Appeal Surveyed in Our September 2, 2010 Post.      In our September 2, 2010 post, we surveyed Simon v. Coleman (Simon I), reversing and remanding for consideration attorney’s fees to be awarded for “costs of proof” sanctions under Code of Civil Procedure section 2033.420. Clearly, the defense was going to

Requests For Admissions/Section 1717/Specific Fee Shifting Statutes: Property Owner Obtaining Cancellation Of Grant Deed For Fraud Not Entitled to Attorney’s Fees Recovery

Cases: Requests for Admission, Cases: Section 1717, Cases: Special Fee Shifting Statutes

  Three Grounds for Recovery Did Not Support Request.      Property owner in Marchi-Friel v. Rago, Case No. A130125 (1st Dist., Div. 4 May 31, 2012) (unpublished) did obtain cancellation of a fraudulent grant deed, with the trial court also cancelling related promissory notes out of an abundance of caution. She then sought recovery of

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