After All, When Initial Loser Became the Eventual Winner, Eventual Loser’s Fees Showed Eventual Winner’s Request Not All That Bad.
Bioquest Venture Leasing v. VivoRx Autoimmune, Inc., Case No. B225195 (2d Dist., Div. 7 Feb. 22, 2012) (unpublished) is one of those procedurally convoluted cases where plaintiff initially won and was awarded attorney’s fees of $900,000 (out of a requested $1,280,114.50) before there was a significant reversal in favor of defendants. On remand, the defense prevailed, and the court awarded defendants attorney’s fees of $1,506,000, approximately $400,000 less than defendants had requested. Reversal of fortune, to say the least.
Wanna play croupier on this one?
Whether you do or not, the fee award was sustained on appeal based on a contractual fee-shifting clause (Civ. Code, § 1717).
After a lot of discussion on what the prior appeal was intended to do, the appellate court affirmed the merits and then looked at the fee award in favor of the defense. It was found not to be unreasonable in nature. After all, the trial judge did reduce the request by more than 20%, especially significant because the loser did not contest some components of the fee request. The affirmance was aided by the observations of the lower court that the case was very complex in nature, an obvious factor justifying higher fees. Aside from that, eventual loser/initial winner had put in for significant trial fees of $1,280,114.50 and was awarded $900,000 before reversal–this past history of an award to opponents was another “marker” that gave the appellate croupier (the reviewing panel) a basis to find the fee order was no abuse of discretion.