Fee Denial Occurred in Domestic Violence Civil Case.
Wife in Bolander v. Bolander, Case No. A134509 (1st Dist., Div. 2 July 25, 2013) (unpublished) recovered $405,000 is a civil domestic violence case arising from her claims of nonconsensual sexual conduct after her husband laced her wine with Ambien on two occasions. She then sought $455,600 in attorney’s fees and $155,622 in costs, with the lower court denying the fee request and awarding a fraction of requested costs to the tune of $17,280. Husband appealed the merits and lost, while wife challenged the fee/costs orders and won a reversal.
Wife’s basis for fees was Civil Code section 1780.5, a discretionary fee-shifting provision in the civil domestic violence area–allowing the court to grant equitable relief, costs and other relief deemed proper by the trial judge, including reasonable attorney’s fees. Wife’s first argument was that this was akin to public interest litigation, where decisions like Serrano v. Unruh, 32 Cal.3d 621 (1982) held that fees should normally be awarded in discretionary situations unless special circumstances made an award unjust. The appellate court rejected application of this public interest wrinkle, finding the case was a private dispute between two parties.
However, the main reason for the fee denial was the lower court’s erroneous belief that wife had presented a legally “thin” domestic violence case because other claims (like sexual battery) had been dismissed as time barred. The appellate court, in earlier discussing the merits, found that sexual battery fit into the statutory definition of “domestic violence.” Given that the lower court misunderstood the law, such an error falls outside the scope of its otherwise broad discretion. A remand was in order to reconsider the fee request using the proper legal compass.
As far as costs were concerned, the appellate court remanded for a re-do because (1) the court taxed cost items never challenged by husband, and (1) it made some arithmetic errors in taxing costs. (Incidentally, it appears the lower court refused to award expert fees on the basis that they were not “routine costs” because the expert was not court ordered, apparently rejecting wife’s argument that they were separately allowable based on 1780.5’s “other relief” language.)
BLOG OBSERVATION–The appellate court had a nice listing of cases which have extended Serrano’s pro-public interest discretion exercising to other areas. Here is what the court had to say: “Serrano v. Unruh (1982) 32 Cal.3d 621, a case involving an equal protection challenge and a claim for attorney’s fees under California’s private attorney general statute (Code Civ. Proc., § 1021.5). It has subsequently been extended to cases involving certain other statutory fees provisions, including claims under the Brown Act (Gov. Code, § 54950 et seq.) (Los Angeles Times Communications LLC v. Los Angeles County Board of Supervisors (2003) 112 Cal.App.4th 1313, 1327; Common Cause v. Stirling (1981) 119 Cal.App.3d 658); the Political Reform Act of 1974 (Gov. Code, § 81000 et seq.) (Thirteen Committee v. Weinreb (1985) 168 Cal.App.3d 528); and state and federal antidiscrimination laws (Christianburg Garment Co. v. EEOC (1978) 434 U.S. 412, 416 [action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.]; Chavez v. City of Los Angeles (2010) 47 Cal.4th 970 [fee claim made pursuant to the Fair Employment and Housing Act (FEHA); Flannery v. Prentice (2001) 26 Cal.4th 572, 584 [same]; Young v. Exxon Mobil Corp. (2008) 168 Cal.App.4th 1467, 1474 [same]).”