Merits Were Yet To Be Decided.
Cellphone Termination Fee Cases, Case Nos. A136818 and A138424 (1st Dist., Div. 5 June 24, 2014) (both unpublished) were situations where plaintiff successfully opposing a petition to compel arbitration by Sprint obtained very substantial trial and appellate fees for prevailing at this “interim” stage of the overall case. Actually, substantial is a good synopsis–$210,000 for trial work ($180,000 lodestar plus .2 multiplier) and $244,462.50 in supplemental appellate fees given prior battles in the reviewing court.
All of this came crashing down in the companion appeal decisions.
Reason? Frog Creek Partners, LLC v. Vance Brown, Inc., 206 Cal.App.4th 515 (2012), which held that a victory in opposing a petition to compel did not spell out the ultimate contractual fee winner under Civil Code section 1717 until the merits were finally resolved. The appellate court held to this decision, and it is must reading for those of you who have to litigate whether Frog Creek is correctly decided—many, many arguments were advanced to say it was not, but the reviewing court disagreed and declined to reconsider Frog Creek. Also, the fee award in one of the appeals was also based on the private attorney general statute (CCP § 1021.5), but that was overturned given the lack of a merits determination vindicating an important public right affecting the public interest.
Premature. Fritz Henle, photographer. 1942. Library of Congress.