Plaintiff’s $719,000 Fees/Costs Award Goes POOF!
We have surveyed several decisions in our category “POOF” that illustrate the principle that many reversals (partial or in full) will require a reversal of a fee/costs award and remand to reconsider after the dust has finally settled on the reversed claims in subsequent trial court proceedings. That is what exactly happened in the next case, with a $719,000 fees/costs award evaporating until the final battles are waged at the litigation front.
In Bisno v. Douglas Emmett Realty Fund 1988, Case Nos. B193604, 195422 (2d Dist., Div. 1 June 19, 2009) (certified for publication), a jury awarded plaintiff liability wins and punitive damages of more than $900,000 against apartment owner for violations of two Santa Monica rent control ordinances. After various posttrial motions, the trial court awarded plaintiff compensatory damages of $125,616 under the rent control ordinances and reduced the punitive damages award to $311,420. Because the Santa Monica charter amendments allowed the prevailing party to recover costs and reasonable attorney’s fees, the lower court awarded plaintiff costs of more than $19,000 and attorney’s fees exceeding $700,000. Apartment owner and plaintiff both appealed certain aspects of the proceedings below.
Based on the effect of the litigation privilege and because the jury should have been instructed on the applicability of the litigation privilege on one of the rent control ordinances, reversal as a matter of law was ordered on one rent ordinance claim and remand for proper instruction on the other. This reversal meant that both parties’ attorney’s fees requests had to be deferred until a final determination of the remaining rent ordinance claim subject to a fee-shifting statute for the winner. Although plaintiff might yet win, the end result was that the $719,000 fees/costs award went … POOF! … for the time being.