Third District Rebuffs Generalized Challenges to Fee Award, Finding Many Arguments Waived Based on a Lack of Specificity.
Defendant in Allen v. Fulton, Case No. C059088 (3d Dist. Dec. 9, 2009) (unpublished) got hammered with a $217,422 fees/costs award ($212,473 of which consisted of fees) after summary judgment motions and a bench trial, where defendant and his company were hit with a total damages award of $373,721.73. Defendant appealed the fee award, to no avail.
The main problem was one of appellate practice: defendant either forfeited or lost arguments because he failed to make them with enough specificity.
He argued that a statement of decision was necessary on a fee decision, which is downright contrary to existing California law. (Ketchum v. Moses, 24 Cal.4th 1122, 1140 (2001).)
Defendant then contended that there were inadequate contractual bases for the award, but the appellate court noted there was a plethora of transactional agreements with fees clauses that could justify the award.
The next challenge was that the fee award was unreasonable in amount. The problem was that defendant failed to pinpoint the specific entries or amounts that were unreasonable, such that the challenge was waived. “It is not our job to comb the entire [supporting fee] declaration that contains hundreds of time entries to find the 15 that [defendant] claims are ‘readily identifiable’ [as error] . . . “ (Slip Opn., p. 8.)
Defendant also claimed that the $200,000-plus fee award was disproportionate to the final award, but this was rejected because he ignored the true amount of the full judgment and also turned a blind eye to the contentiousness with which he litigated (and drove up costs).
Finally, he argued that the trial court had to apportion between compensable and non-compensable fee claims. Wrong, because defendant’s defense intertwined facts in all the causes of action such that no allocation was mandatory.