$22,532 Fee Award Evaporates On Appeal.
In Borad v. Grossmont Union High School District, Case Nos. D056606/D057142 (4th Dist., Div. 1 Mar. 22, 2011) (unpublished), plaintiff was awarded $22,532 in attorney’s fees under the “catalyst theory” of the private attorney general statute. The lower court apparently believed that plaintiff had obtained his relief (restoration of some sick day leave) before the jury trial began, even though plaintiff abandoned his case after an adverse in limine motion ruling and never put on any proof of the merits of his claims.
The appellate court did not see the fee award basis the same way, reversing the lower court’s order.
The abandonment of the case and failure to introduce merits proof were reasons to overturn the award. Under “catalyst theory” cases, mere argument that a case was a catalyst will not do; some evidence must be presented. (Graham v. DaimlerChrysler Corp., 34 Cal.4th 553, 575 (2004); Tipton-Whittingham v. City of Los Angeles, 34 Cal.4th 604, 608, 610 (2004).) No proof, no award.