Fourth District, Division 1 Rejects WOW Argument and Affirms Fee Award To Winner in Appeal of Summary Judgment Ruling.
If you are a reader of our blog, you know that we have a POOF! category—our way of designating cases where fee awards vanish after there has been reversal of any underlying
merits judgment on appeal. We now have another category—WOW! (A variant of Holy Cow, Batman!). This refers to litigants’ arguments that fees were shockingly excessive. The Fourth District, Division 1 gets credit for this one, which was coined in Parker v. Winslow, Case No. D053063 (4th Dist., Div. 1 Mar. 26, 2009) (unpublished).
Parker involved a situation where a trial court awarded successful defendant/respondent full requested attorney’s fees and costs of $40,636.35 after she successfully fended off plaintiffs/appellants’ appeal of a summary judgment in favor of respondent in a residential property nondisclosure/fraud case. (Earlier, respondent had won $34,798 in fees for trial work in winning the summary judgment.) Plaintiffs were not pleased, and filed over 80 pages of detailed appellants’ briefing as well as orally arguing the cause before the appellate court. Plaintiffs lost on appeal, the fee award followed, and plaintiffs appealed the fee award for defendant’s appellate work.
The appellate panel had little difficulty affirming the appeal fee award, notwithstanding plaintiffs’ suggestion that $12-13,000 was the reasonable range for an award. The full amount of what was requested happened to be justified primarily by the tenacious litigation strategy pursued by plaintiffs both at the trial and appellate levels—which led to the appellate dismissal of plaintiffs’ “WOW” argument. (Ketchum v. Moses, 24 Cal.4th 1122, 1141 (2001).) The trial court did not have to issue a statement of decision on the fee award and did not have to give explanations for denying plaintiffs’ objections to specific items in the billings. (Maria P. v. Riles, 43 Cal.3d 1281, 1294 (1987).) The award was affirmed, and defendant was awarded costs on appeal—which means another fee petition for this second appellate win will likely be pursued by the victorious defendant.