However, Apportionment Was Required On Remand—Consideration Of Many Factors.
In Bank of Southern California, N.A. v. D&D Goryoka, Inc., Case No. D069767 (4th Dist., Div. 1 Nov. 29, 2016) (unpublished), defendant/cross-complainant was denied a prevailing party fee request as against plaintiff/cross-defendant Bank to the tune of a $908,171.25 request (later reduced to $795,753). Defendant “defensed” Bank’s complaint, although Bank did win a judgment against some co-defendants represented by the same counsel who represented prevailing defendant. The lower court denied prevailing defendant’s fee request under the “unity of interest” principle. The appellate court reversed and remanded for an apportionment of work, if possible, between successful versus unsuccessful defendants.
The 4/1 DCA agreed that the “unity of interest” principle was no longer valid based on legislative amendments, as confirmed by the 4/3 DCA’s analysis in Charton v. Harkey, 247 Cal.App.4th 730, 741-742 (2016) [discussed in our May 24, 2016 post]. The fee requesting defendant did prevail pursuant to contractual fee clauses, and it was an abuse of discretion for the trial court to not apportion fees between the work for successful versus unsuccessful defendants. However, the appellate court made it clear it was not shackling the trial judge in making apportionment decisions, including the fact that the successful defendant had dissolved and was in the process of winding up such that it was not an active entity for entity purposes. Finally, the reviewing court determined that the fee award belonged to the client, not the attorney—refusing to extend FEHA principles to the civil context of the fee award in this instance.