December 2018

Employment, Costs: Appellate Court Directive That “The Parties To Bear Their Own Costs On Appeal” Does Not Preclude Award Of Appellate Fees

Cases: Costs, Cases: Employment

Directive Only Deals With Appellate Routine Costs, With Berman Hearing Fee-Shifting Provision Allowing For Recovery Of Appellate Fees For Prevailing Party Work.             This case deals with a Berman hearing—an employee’s hearing before the California Labor Commissioner for unpaid wages. Employers gripe because, if a de novo trial is sought in the superior court, they […]

Allocation, Indemnity: CFO Was Entitled To Attorney’s Fees Indemnification Under Corporations Code Section 317(d) For Win On Settlement Release Issue

Cases: Allocation, Cases: Indemnity

Remand Requires To Apportion Fees Expended In Establishing Validity Of Release And Defendants Against Fraud In The Inducement Claims—However, It Did Not Adopt Wilshire Test For Corporate Indemnification.             Protech Services, Inc. v. Gillette, Case No. C083975 (3d Dist. Dec. 6, 2018) (unpublished) is an interesting decision on the scope of mandatory indemnification under Corporations

Consumer Statutes, Section 998: Plaintiff Winning Only $2,636.50 In Attorney’s Fees And Costs In Lemon Law Case Was Entitled To Reversal And Remand

Cases: Consumer Statutes, Cases: Section 998

Trial Judge Improperly Imposed CCP § 998 Sanctions When Offer Was Improper, Such That Cut-Off Fee Determination Was An Abuse of Discretion.             In Etcheson v. FCA US LLC, Case No. D072793 (4th Dist., Div. 1 Dec. 6, 2018) (unpublished), plaintiff brought a “lemon law” action relating to a $40,000 purchase of a 2010 Chrysler

Sanctions: 4/1 DCA Panel Agrees That CCP § 128.5 Sanctions Are Unwarranted Unless Moving Parties Comply With CCP § 128.7 “Safe Harbor” Requirements

Cases: Sanctions

Panel Disagrees With Prior 4/1 Panel In San Diegans for Open Government And Follows Contrary Result Reached By 2/7 DCA In Nutrition Distribution.             We find the result in CPF Vaseo Associates, LLC v. Gray, Case No. D072909 (4th Dist., Div. 1 Dec. 6, 2018) (published) both refreshing and correct in its reasoning. It goes

Costs, Probate, Section 998: Insurance Company Controlling Litigation Is De Facto Party Under Probate Code, Liable For Litigation Costs Under Rejected CCP § 998 Offer

Cases: Costs, Cases: Probate, Cases: Section 998

Because Insurance Company Controls The Litigation, Court Looks Past "Legal Fiction" That Decedent's Estate Is The Party.         Amanda Meleski was injured when Albert Hotlen ran a red light and collided with her vehicle. But by the time Mr. Hotlen could be served with a summons, he was dead. However, Mr. Hotlen had purchased

Prevailing Party: Plaintiff Obtaining Some Scaled Back Damages And Declaratory Relief On Environmental Contamination Properly Awarded $1.345 Million In Fees

Cases: Prevailing Party

Although Not Winning Everything, Plaintiff Did Obtain Significant Declaratory Relief So As To Be Deemed The Prevailing Party.             In Hot Rods, LLC v. Northrop Grumman Corp., Case No. G054432 (4th Dist., Div. 3 Dec. 5, 2018) (unpublished), the case involved environmental contamination of a property in Anaheim that was sold by defendant to certain

Family Law: Third District Affirms Discretionary Family Law Fees And Spousal Support Awards Because No Reporter’s Transcript Provided

Cases: Family Law

Trial Judge Is Presumed To Follow The Law In Lines With His/Her Official Duties.             We have posted many times that it would be a good (if not mandatory) idea to have a reporter present for discretionary fee award proceedings. The Third District, in line with other sister court courts (especially the Second District, Division

Appealability: Where Judgment Reserved Fee Entitlement Decision For A Later Noticed Motion, Eventual Losing Party’s Appeal Of Just The Judgment Rather Than Subsequent Fee Award Meant Appellate Court Could Not Entertain Appeal On Fee Issue Down The Line

Cases: Appealability

No Entitlement Determination Made In Judgment, So Separate Appeal Of Later Fee Order Required.             We do not want to drum a theme we have stressed before, which is to separately appeal fee determinations. We are in the Holidays, so – pa rum pum pum (ala Drummer’s Boy lyrics on a Holiday song) – we

Construction, Section 1717: Defendant Prevailing On Only One Payment Withholding Issue Not Entitled To Fee Recovery Under Prompt Payment Statutes And Plaintiff Only Entitled To Reasonable Fees Under Contractual Fees Clause

Cases: Construction, Cases: Section 1717

Plaintiff’s Request For Full Fees Ignores That Section 1717 Only Allow For Recovery Of Reasonable Fees.             Co-contributor Mike knew right away that McMahon Steel Co. v. Angeles Contractor, Inc., Case No. G054053 (4th Dist., Div. 3 Dec. 3, 2018) (unpublished) was written by Acting Presiding Justice Bedsworth. Here is how it opens: “The

Class Action: New Amendments To F.R. Civ. P. 23 Became Effective 12/1/18

Cases: Class Actions

Among Others, District Judge Has To Approve Payment Or Consideration To Objectors Or Their Counsel For Withdrawing Objections Or Abandoning Appeals.             Effective December 1, 2018, Federal Rules of Civil Procedure, rule 23 was amended in several respects to clarify notice requirements relating to class action settlements, bulk up “preliminary approval” standards with added clarity,

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