Author name: Marc Alexander

Ethics, Retainer Agreement, Special Fee Shifting Provisions: Although Fee Award Against HOA Belongs To Attorney, Attorney Had To Offset For Contingency Fee Already Received

Cases: Ethics, Cases: Retainer Agreements, Cases: Special Fee Shifting Statutes

Attorney Was Liable For Substantial Elder Abuse Fees To Prevailing Elderly Client Based On Failing To Properly Offset And Return Money To Client.             Koehler v. Prinz, Case No. C095229 (3d Dist. Sept. 25, 2023) (unpublished) is a case which shows that attorneys need to be careful when they receive a fee award which belongs […]

Requests For Admission, Section 998: Plaintiffs’ 998 Offer Was Invalid And Costs-Of-Proof Sanctions Properly Denied

Cases: Requests for Admission, Cases: Section 998

Performance Components Of 998 Offer Were Too Ambiguous; RFAs Were Either Of No Substantial Importance Or Not Unreasonably Denied.             In Jarecki v. Zitter, Case No. D078314 (4th Dist., Div. 1 Sept. 26, 2023) (unpublished), a drainage dispute developed between property owners and downslope neighbors, resulting in plaintiffs losing a trespass claim but prevailing on

Civil Rights, Section 998: Summary Judgment Winning Defendants Properly Denied FEHA Attorney’s Fees And Routine Costs Because Case Was Not Frivolous

Cases: Civil Rights, Cases: Section 998

Also, FEHA And Non-FEHA Claims Overlapped Such That Costs Recovery Was Foreclosed.             In Liza v. CKE Restaurant Holdings, Case No. B313111 et al. (2d Dist., Div. 2 Sept. 25, 2023) (unpublished), defendant won a summary judgment against plaintiff’s FEHA and non-FEHA claims, although they did overlap.  The lower court later denied the defense request

Private Attorney General: Where Petitioner Had Limited Success And Lost Its Primary Litigation Objectives In CEQA Action, Lower Court Did Not Err In Reducing Requested Fees By About 90% And Denying A Positive Multiplier Request For One Firm’s Work

Cases: Private Attorney General (CCP 1021.5)

$37,346.30 Was The Fee Award From The $225,683 Lodestar Request Plus 1.5 Multiplier For One Component Of The Fee Request.             Limited success and excessive fee requests, even in a CEQA context, confer considerable discretion on a lower court to fashion an appropriate fee award under California’s private attorney general statute.  These factors led to

Requests For Admission: Defense Request For Costs-Of-Proof Sanctions Denied Because Statute Of Limitation Issues Were Imprecisely Tied To The Merits And No Apportionment of Statute Of Limitation Tolling Issues Was Established

Cases: Requests for Admission

The Need For Precision In Allocating Fee Recovery Under CCP § 2033.420 Is Made Clear Here.             In Flores v. Medical Holdings, Inc., Case No. B317695 (2d Dist., Div. 3 Sept. 20, 2023) (unpublished), the defense propounded denied RFAs on statute of limitation issues, ultimately prevailing on this issue at trial.  Feeling emboldened, the defense

Appealability, Family Law: Denial Of Fees To Ex-Wife Under Family Code Section 3121 Was No Abuse Of Discretion Because The Matters Before The Trial Judge Were Unrelated To Child Custody Issues

Cases: Appealability, Cases: Family Law

However, Ex-Wife’s Appeal From The Final Judgment Was Timely Because the Interim Order Denying Fees Was Not A Separately Appealable Order.             The main lesson from Marriage of Davis, Case No. D080980 (4th Dist., Div. 1 Sept. 18, 2023) (unpublished) is a simple one:  if you are seeking fees, make sure you have a fee

Lodestar, Prevailing Party: Reversal Of Judgment For Cross-Complainant And Increased Recovery For Plaintiffs Made Plaintiffs The Prevailing Party So A Fee Order Remand Was Necessary

Cases: Lodestar, Cases: Prevailing Party

Given Some Reductions For The Cross-Complaint And Other Issues, Fee Award Had To Be Reassessed—Initial Award Was $388,541, A 50% Reduction From The Original Request.             In Perera v. Moine, Case No. B319315 (2d Dist., Div. 7 Sept. 18, 2023) (unpublished), plaintiffs were the prevailing party in a breach of contract dispute (based on an

Civil Rights, Costs: Prevailing ADA Defendant Entitled To Costs Under F.R.Civ.P. 54(d)(1) Even If The Matter Was Not Frivolous

Cases: Civil Rights, Cases: Costs

Majority Opinion Followed Marx Decision; Dissent Would Have Followed A Contrary Pre-Marx Decision Despite Indicating The Result Might Be The Same.             In Garcia v. Gateway Hotel, L.P., Case No. 21-55926 (9th Cir. Sept. 15, 2023) (published), the Ninth Circuit, in a 2-1 opinion, clarified that defendants prevailing in an American with Disabilities Act (ADA)

Allocation: Major Portion Of $950,000 Attorney’s Fees Award Affirmed In Interrelated Trade Secret/Contractual Matter

Cases: Allocation

However, Some Portion of The Fee Recovery On An Unsuccessful, Non-Compensable Fraud Cross-Claim Had To Be Revisited Because Billings Showed Those Expenses Could Be Assessed.             Elations Systems v. Fenn Bridge, LLC, Case No. A165762 (1st Dist., Div. 3 Sept. 15, 2023) (unpublished) is an allocation/apportionment opinion which we commend litigators and others to read.

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