Author name: Marc Alexander

Fee Clause Interpretation, Landlord/Tenant: Guarantor Limitation Of Liability Provision Did Not Limit Fee Recovery

Cases: Fee Clause Interpretation, Cases: Landlord/Tenant

Guaranty Limitation Applied Only To Damages, Not To Attorney’s Fees Which Are Costs Instead.             In Valencia Gateway Retail IV, LLC v. Woltman, Case No. B288726 (2d Dist., Div. 5 Aug. 20, 2019) (unpublished), two defendant guarantors of a breached lease argued that a guaranty liability limitation—“equal to six months’ charges due under the lease” […]

Appealability, Discovery: Appeal From Final Judgment Does Preserve Challenges To Discovery Rulings.

Cases: Appealability, Cases: Discovery

2/4 DCA Finds Persuasive Reasoning From Prior 2/8 Decision On This Issue.             We found Baiul-Farina v. Crown Media Holdings, Inc., Case No. B279653 (2d Dist., Div. 4 Aug. 21, 2019) (unpublished) interesting, not because it affirmed discovery sanctions rulings, but for its discussion on appealability.  Appellant argued that discovery sanctions rulings were not appealable

Costs, Deadlines: Premature Filing Of Costs Memorandum In 2010 Did Not Mean It Was A Nullity, Such That 2018 Motion To Tax Costs Was Way Too Late

Cases: Costs, Cases: Deadlines

Unpublished Opinion Does A Nice Job Of Discussing Modern View On Premature Costs Memo Filings.             In Paland v. Brooktrails Township Services Dist. Bd. of Directors, Case No. A156229 (1st Dist., Div. 5 Aug. 19, 2019) (unpublished), Defendant filed and served a memorandum of costs in February 2010 seeking $1,029.02 in costs incurred on appeal. 

Family Law, Sanctions: Father Making Another Sanctions Motion After Trial Judge Already Ruled On Prior Request Was Properly Denied

Cases: Family Law, Cases: Sanctions

“A Party Cannot Be Sanctioned Twice For the Same Misconduct.”            Presiding Justice Gilbert, who has a unique writing style, summed up the “end result” in Marriage of Anka & Yeager, Case No. B289610 (2d Dist., Div. 6 Aug. 19, 2019) (unpublished) this way: “A party cannot be sanctioned twice for the same misconduct.”            

Civil Rights: E.D. Pennsylvania District Judge Denies Title VII Fee Recovery To Plaintiff Only Winning Nominal Damages Of $1 Dollar On One Title VII Retaliation Claim

Cases: Civil Rights

Plaintiff Sought To Recover $358,383 In Fees; Limited Success Was Key Reason For Denial.             In Pierce v. City of Philadelphia, Civil Action No. 17-5539 (E.D. Pa. Aug. 2, 2019), a Native American plaintiff brought various civil rights, constitutional, Title VII, and state-related claims against City of Philadelphia for discrimination, harassment, retaliation, and hostile work

Section 998: Rejecting Offeree Which Rejects First And Second CCP § 998 Offers Is Entitled To Addition Of Pre-Offer Fees/Costs Up Through Date Of Second Offer To The Base Judgment

Cases: Section 998

Any Other Conclusion Would Run Afoul Of Section 998’s Purpose To Encourage Settlement.             Hersey v. Vopava, Case No. B287896 (2d Dist., Div. 8 Aug. 14, 2019) (published) involved a situation where a plaintiff tenant who vacated an apartment sued for inhabitability issues.  Defendant landlord made two CCP § 998 offers, one for $10,000 and

Section 998: When Offeree Beats First Offer, Court Refuses To Freeze Offeree’s Costs At Time Of First Offer When Offeror Makes Second Offer

Cases: Landlord/Tenant, Cases: Section 998

Court Could Not Find Case On Point,  So It Was Guided By Statutory Purpose Of Section 998.         In Hersey v. Vopava, B287896 (2nd Dist. Div. 8 Aug. 14, 2019) (Stratton, Grimes, Wiley), the Court holds, "where an offeree achieves a judgment more favorable than a first offer, the determination of whether an offeree obtained

Private Attorney General: $93,000 In Appeal Fees Under CCP § 1021.5 Affirmed For Work On Prior Appeal Where Partial Reversal Resulted In Three Other EIR Deficiencies Identified For Correction By Orange County

Cases: Private Attorney General (CCP 1021.5)

Trial Judge Reduced Fee Request By About 20%.             In on-going CEQA litigation between nonprofit citizen groups and a residential developer over a Yorba Linda project, the lower court initially found merit only on a greenhouse emission issue out of a myriad of EIR challenges in a proceeding involving Orange County and the developer.  However,

Intellectual Property: Second Circuit Joins Third, Fourth, Fifth, Sixth, Ninth, and Federal Circuits In Applying Patent Act’s “Exceptional Case” Factors To Determine If Fee Recovery Warranted In Lanham Act Case

Cases: Intellectual Property

Second Circuit Did So In 2018, Recently Remanding A District Judge’s Award of Fees Under Lanham Act For A New Scrutiny Using The Octane Fitness Factors.             In Sleepy’s LLC v. Select Comfort Wholesale Corp., 909 F.3d 519, 530-531 (2d Cir. 2018), the Second Circuit joined the Third Fourth, Fifth, Sixth, Ninth, and Federal Circuits

Construction, Section 998: Defendant Pipe Supplier In Condo Construction Defect Suit Properly Denied HOA Section 998 Offer Of $325,000 As Too Token Given $22.7 Million Costs Of Repair For Defendant’s Scope Of Work

Cases: Construction, Cases: Section 998

HOA Sought To Recoup $298,178.69 In Costs, Including $176,870.54 In Expert Witness Fees.             In Acqua Vista Homeowners Assn. v. MWI, Inc., Case No. D073666 (4th Dist., Div. 1 Aug. 9, 2019) (unpublished), plaintiff homeowners association sued developer defendants as well as pipe supplier defendant MWI in a construction defect suit under the Right to

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