Prevailing Parties’ Counsel Passed, But The Lower Court Gave An Opportunity To Allocate—They Could Not, But It Is The Fee Claimants’ Burden Of Proof.
The result in Choy v. Ribeiro Development, Inc., Case No. C100831 (3d Dist. Sept. 1, 2026) (unpublished) may at first blush seem harsh, but it is a fee claimant’s burden to justify a fee request even if the counsel who could do so has passed, as long as due process is accomplished. That is what occurred in Choy.
An original fee award of $233,594 based on a contractual fees clause in an employment agreement was reversed and remanded in an earlier appellate opinion to determine fees by two prevailing defendants, given that there was another losing defendant. The lower court’s tentative was to grant the fee motion, but it wanted a Zintel-type apportionment such that fees incurred for the losing defendant were not included in the fee calculus. The problem was that plaintiffs’ original counsel had passed, although the lower court did give new counsel a chance to allocate. New counsel was unable to apportion, so the lower court did so by awarding $64,150, about 27% of the requested amount for trial and post-judgment appeal work. The Third District court affirmed under the deferential abuse of discretion standard.