Trial Judge Discounted $46,958.22, With Challenging Party’s Failure To Request A Statement of Decision Fatal To Its Appeal To Get More Fees..
This case is interesting and highlights a tension in California state law which will have to be confronted at some point in time.
Azinian v. Luby’s Ruddruckers Restaurants LLC, Case No. B256660 (2d Dist., Div. 3 Feb. 19, 2016) (unpublished) involved a situation where defendant won a fee award against plaintiff for $36,000, less than the $46,958.22 in requested fees.
Defendant appealed, claiming more of the requested fees should have been awarded.
In affirming the award, the appellate court determined there was an inadequate record because defendant did not ask for a Statement of Decision by the trial judge. Also, it was easy to divine anyway that the lower court allocated out some noncompensable work in awarding the lesser amount.
BLOG OBSERVATION—Although there is some language in Ketchum v. Moses, 24 Cal.4th 1122, 1140-1141 (2001) [one of our Leading Cases] about requesting a Statement of Decision, there is a real catch 22 here, in light of many, many decisions holding that a trial judge usually does not have to give a Statement of Decision in fee proceedings. This tension will have to be faced at some point. Recently, the Sixth District in Kerkeles v. City of San Jose, 243 Cal.App.4th 88 (2015) [discussed in our December 20, 2015 post] decided that a trial judge did have to give a reasoned explanation for over 10% fee haircuts in a civil rights § 1988 context. We further report that a petition for review is pending in Kerkeles (Cal. Supreme Court No. S232084), with an answer to the petition recently filed on February 16, 2016. If this case were taken for review, this tension might be faced given that Kerkeles followed the reasoning of some federal cases which were not followed in prior state intermediate appellate unpublished decisions (such as the Ninth Circuit’s Moreno decision requiring an explanation for fee haircuts over 10%).