Apportionment and Mitigation Arguments Rejected By Reviewing Court.
Hill v. Degery, Case No. H038874 (6th Dist. June 9, 2014) (published) is a situation where, after an earlier appeal reversing a fee denial, an LLC member was granted fees based on its statutory immunity defense that it could not be liable unless its conduct fell outside its capacity as an LLC member. The final fee tally in LLC member’s favor was based on the trial court granting LLC member’s full request for trial court level fees/costs of $299,401.61 and appellate level fees/costs (for the earlier appeal triumph) of $27,665.12, given the existence of a contractual fees clause (conferring fee entitlement under Civil Code section 1717).
Fee motion losers appealed the fee award in favor of LLC member, but did not gain any further relief.
The first issue was apportionment, but this one was not difficult given the LLC and LLC member defense claims—given they were jointly represented litigants—were inextricably intertwined; thus, no allocation required. (Cruz v. Ayromloo, 155 Cal.App.4th 1270, 1278 (2007).)
The second issue was a challenge for LLC member’s failure to mitigate by not bringing a summary judgment motion, even though LLC member tried by ameliorate by bringing an unsuccessful nonsuit motion. (Interesting that a litigant wants someone to bring an expensive summary judgment to lower potential fee exposure, given the odds of getting these motions granted.) This argument was rejected based on the lack of authority and a record showing mitigation efforts would have been unsuccessful anyway.
That left consideration of the award of attorney’s fees to LLC member for prevailing in the earlier appeal. That amount, too, was no abuse of discretion because nothing in the appellate court opinion precluded a subsequent award by the trial judge, with LLC member entitled to appellate fees pursuant to contract/Civil Code section 1717.