Lodestar Analysis Does Not Apply In A Brandt Contingency Case Situation.
Under Brandt v. Superior Court, 37 Cal.3d 813 (1985), a jury or lower court (via a posttrial stipulation for the court) can award attorney’s fees to a prevailing plaintiff as damages in an insurance case limited to the time spent to recover the benefits of the insurance contract. Later, Cassim v. Allstate Ins. Co., 33 Cal.4th 780 (2004) established how Brandt fees are to be determined in a contingency fee case where there are mixed claims: the percentage of fees paid to the contingency attorney based on the work attributable exclusively to the contract recovery, with any work spent on other issues (usually tort claims) allocated out of the calculation. The lodestar analysis does not apply to Brandt fee “damages.”
Unfortunately for prevailing plaintiffs in an insurance case, the Cassim methodology resulted in just a $2,718 Brandt damages award after plaintiffs recovered $25,787,50. That triggered an unsuccessful appeal in Saydman v. Aegis Security Ins. Co., Case No. G063209 (4th Dist., Div. 3 Dec. 20, 2024) (unpublished).
The appellate court first had to consider whether plaintiffs had timely appealed because they did not appeal the initial judgment before an amended judgment was entered after a separate posttrial proceeding on the Brandt issue. Normally, plaintiffs would have been untimely, in their appeal, but because Brandt fees are damages, it was timely to appeal the amended judgment based on the bifurcated nature of the proceedings.
But plaintiffs lost the merits challenge to the fee award. The lower court did follow the Cassim methodology given the substantive award was small and following allocating out time spent on other claims. It concluded this way: “Cassim dictates how Brandt fees are calculated in the context of a contingent fee—which was not the lodestar method—and we are bound to apply it.” (Slip Op., p. 14.)
Justice Motoike authored the 3-0 opinion.