Fourth District, Division 1 Sends Such a Message in Unpublished Decision.
In our category “Cases: Allocation,” we have explored when apportionment of fees is necessary in a fee petition involving time spent on claims subject to a fee-shifting statute or time expended on noncovered claims. Although it is a discretionary judgment call for the trial court, the next fee claimant learned that an opponent’s call for apportionment should not be lightly ignored.
Aladdin Companies, Inc. v. Chichi, Case Nos. D051609 & D052567 (4th Dist., Div. 1 Jan. 22, 2009) (unpublished) affirmed the denial of attorney’s fees to a claimant who did successfully defend on a cross-claim because claimant refused to apportion fees between covered and uncovered cross-claims. Although acknowledging that apportionment is not usually required where claims are inextricably intertwined, the appellate panel did observe that the trial court has broad discretion—“[a] court may apportion fees even where the issues are connected, related or intertwined,” citing El Escorial Owners’ Assn. v. DLC Plastering, Inc., 154 Cal.App.4th 1337, 1365 (2007).
Fee claimant tried to argue that it did attach voluminous bills. However, claimant did not make an allocation of fees, which was insufficient. “It is not the trial court’s or the appellate court’s duty to comb through time entries to support a party’s fee request.”
Even worse for claimant, the opponent had pointed out that claimant had failed to allocate fees to the covered cross-claim in its opposition before the lower court. Claimant did nothing in the reply brief, sealing claimant’s fate as far as the Court of Appeal was concerned. No abuse of discretion was shown under the circumstances.
BLOG UNDERVIEW—If you happen to be a fees claimant, it would be wise to apportion fees unless you are convinced that the claims are inextricably intertwined. Either apportion in a reply brief or ask the trial court for supplemental briefing if there is a judicial disposition to require fee allocation.