Failure to Apportion Between Defense and Cross-Complaint Prosecution Work Was the Flaw in the Fee Award.
Depending on the fee-entitlement statute, apportionment may be a mandatory exercise. Although it usually is discretionary and may not be needed where work was intertwined, these principles do not necessarily apply to all fee situations. Sheridan v. Fladeboe Volkswagen, Inc., Case Nos. G043375/G043706 (4th Dist., Div. 3 Apr. 29, 2011) (unpublished), a 3-0 opinion authored by Acting Presiding Justice Rylaarsdam, illustrates this point well.
There, plaintiff won a Song-Beverly Consumer Warranty Act case against defendant Fladeboe. Co-defendant/cross-complaint VW won a summary judgment against plaintiff and was awarded fees of over $235,000 by the trial court as against Fladeboe under its indemnity cross-complaint. This fee award was reversed and remanded for recalculation.
No one denied that VW’s implied indemnity cross-claim win qualified it to an award of fees under Code of Civil Procedure section 1021.6. However, this section only allows an award of fees “in connection with defending against plaintiff’s complaint,” not for time expended in prosecuting the cross-complaint. The basis for reversal and remand was that the fee request invoices commingled defense and cross-complaint prosecution work such that the fee matter had to be reconsidered after proper excising the cross-complaint prosecution work.
BLOG UNDERVIEW–We recently learned that Presiding Justice David Sills has announced his retirement from our local Santa Ana appellate court, effective June 1 of this year if the report we read is correct. Presiding Justice Sills has served Orange County well for a number of years in a number of roles, namely, former mayor of Irvine, an Orange County Superior Court judge, and 4/3 appellate justice. We wish you the best as you spend time on other things after finishing your distinguished public service.