Apportionment Would Have To Be Made, Because Litigant Shared Counsel With Remaining Party In Litigation.
Hyatt v. Aurora Western Pacific Advisors, Inc., Case No. G052981 (4th Dist., Div. 3 April 20, 2017) (unpublished) illustrates that difficulties in apportioning fees does not allow a trial judge to deny a fee request by an unqualified prevailing party. In this one, Aurora prevailed on a demurrer against a party suing on a reverse alter ego theory. The trial judge refused to award fees under a contractual fees clause between the signatory remaining party and the losing party, mainly based on problems with apportioning fees given that remaining signatory party and non-signatory prevailing party (not an alter ego) were represented by the same counsel. The 4/3 DCA reversed, in an opinion authored by Justice Aronson. First of all, the fee denial was appealable given the decision was final as to pertinent parties. Second, given that the losing party would have been entitled to fees if prevailing on the alter ego theory, Aurora was also entitled to fees in light of its unqualified win. Last but not least, the trial judge’s fears of apportionment did not prevent a fee denial to an unqualified winner, with equitable considerations and discretion at play to discount for shared counsel work efforts and other factors.