Fourth District, Division 3 Also Finds That Fee Clarifying Substantiation in Reply Brief Was Too Late Unless Opponent Given Opportunity for Further Response.
Code of Civil Procedure section 1218(a) provides for attorney’s fees to “the party initiating the contempt” for fees which that party incurred “in connection with the contempt proceeding.” It is not a general prevailing-party-at the-end-of-litigation-statute (such as Civil Code section 1717), but is limited to fees incurred with regard to a specific contempt proceeding. In the next case, our local Court of Appeal reversed a $25,000 contempt fee award under section 1218 for failure to apportion and on due process grounds.
In Gates v. Pfeiffer, Case No. G039450 (4th Dist., Div. 3 Mar. 17, 2009) (unpublished), a family restraining order battle involving multiple family members finally peaked when a contempt order was entered against one of the family members who happened to be a licensed attorney representing other involved family members. After obtaining a contempt order, the winning party sought to seek $41,630.08 in fees under section 1218(a) based on one-page, cursory invoices. Attorney opposed, and the winning party boosted the total to $90,631.49 but did provide more detail in reply papers
–albeit asking for fees based on all work done in the matter rather than just isolating the time spent on the contempt. The lower court awarded $25,000 in fees, a determination reversed on appeal.
Presiding Justice Sills, on behalf of a 3-0 panel, found the fee award should have been denied on two grounds.
First, the fee proponent did not apportion the fee request to cover fees incurred only in connection with the contempt. The “all fee” request was not allowable under section 1218(a). (See, e.g., Trans-Action Commercial Investors, Ltd. v. Fermaterr, Inc., 60 Cal.App.4th 352, 371 (1998); Luckett v. Keylee, 147 Cal.App.4th 919, 926 (2007).)
Second, even though the $25,000 eventually awarded might have been limited to the contempt, the appellate panel further determined that the trial court erred in not allowing the attorney opponent sufficient time to analyze the new fee documentation presented in reply papers and object thereto. “That late afternoon [attorney], like a ship in a battle, went down still objecting to the documentation submitted.” By analogy to a case involving submission of new material in summary judgment reply papers, Justice Sills found that attorney did not have an opportunity to meaningfully respond to the new material, rendering it a manifest abuse of discretion to award fees under the circumstances.
Beyond this, the appellate panel did not like the contempt judgment. The opponent did not correctly challenge it by writ, but the Court of Appeal—admittedly in dicta—showed its “own contempt” for the contempt order.