Yearly Roundup: Mike & Marc’s Top 20 Fees/Costs Decisions In 2014.
It’s that time of year for our top 20 fees/costs decisions for 2014, focusing on published California appellate or Ninth Circuit decisions. We will note that some of these same have been accepted for state supreme court review/transferred back to a DCA or been ordered for en banc hearing in one Ninth Circuit case. The order of presentation should not be interpreted as ranking the importance of any decisions, and we made subjective decisions on those opinions that piqued our interest without regard to the substantive area of the law at issue. Also, in a couple of situations, we lump two decisions coming to the same conclusion on an issue. With that, here we go and Happy Holidays to all of our readers.
20. Tourgeman v. Nelson & Kennard, 222 Cal.App.4th 1447 (Jan. 16, 2014) [4th Dist., Div. 1; authored by Aaron, J.]: No SLAPP fee recovery for the defense where action voluntarily dismissed because no mini-merits determination was made as to whether the defense would have actually prevailed, disagreeing with cases allowing fee recovery based on defense obtaining litigation objectives through the dismissal. [Discussed in our Jan. 18, 2014 post.]
19. Robert v. Stanford University, 224 Cal.App.4th 67 (Feb. 25, 2014) [6th Dist.; authored by Mihara, J.]: Lack of Rosenman v. Christensen, Miller etc., 91 Cal.App.4th 859 (2001) written findings about frivolousness of civil rights suit for fee recovery purposes by the defense does not automatically require reversal where oral findings provided sufficient record for fee recovery. [Discussed in our Feb. 26, 2014 post.]
18. Soni v. Wellmike Enterprise Co. Ltd., 224 Cal.App.4th 1477 (Mar. 26, 2014) [2d Dist., Div. 3; authored by Klein, P.J.]: Trope prohibition prevented law firm collecting “fees on fees” as winner in fee collection case where law firm used associates/employees in firm’s representation in the underlying fee collection trial. [Discussed in our Mar. 26, 2014 post.]
17. Carter v. Caleb Brett LLC, 757 F.3d 866 (9th Cir. Mar. 10, 2014) [9th Cir.; authored by Alarcon, Cir. Judge]: District court must “show its math” in making substantial fee reductions, reversing 37% “haircut” in fee request where lack of specificity pervaded fee order. [Discussed in our Mar. 11, 2014 post.]
16. DKN Holdings, LLC v. Faerler, 225 Cal.App.4th 1115 (Apr. 9, 2014) [4th Dist., Div. 2; authored by King, J.], rev. granted on other issues, and Syers Properties III, Inc. v. Rankin, 226 Cal.App.4th 69 (May 5, 2014) [1st Dist., Div. 2; authored by Kline, P.J.]: Lower court has discretion in determining whether to use U.S. Attorney’s Office’s Laffey Matrix when determining the lodestar hourly rate, regionally adjusted or otherwise. [DKN discussed in our Apr. 9, 2014 post; Syers Properties discussed in our May 6, 2014 post.]
15. Gray1 CPB, LLC v. SCC Acquisitions, Inc., 225 Cal.App.4th 410 (Apr. 9, 2014) [4th Dist., Div. 3; authored by Moore, J.], rev. granted but matter later transferred back to DCA to consider matter in light of Conservatorship of McQueen, discussed in Part 2 of our 2014 Review: Judgment creditor’s acceptance/negotiation of cashier’s check constituted judgment satisfaction, cutting off claim for substantial post-judgment fee recovery. [Discussed in our Apr. 9, 2014 post; BLOG NOTE—supplemental briefing has been completed in the 4/3 DCA, with a submission order filed on Nov. 24, 2014 and with a Feb. 23, 2015 deadline to file a new opinion.]
14. S.L. v. Upland Unified School Dist., 747 F.3d 1155 (9th Cir. Apr. 2, 2014) [9th Cir.; authored by Christen, Cir. Judge]: District court’s written order on a fee motion triggers 30-day appeals period, with no need for a separate judgment to trigger the running of the 30-day period. [Discussed in our Apr. 2, 2014 post.]
13. deSaulles v. Community Hospital of the Monterey Peninsula, 225 Cal.App.4th 1427 (May 2, 2014) [6th Dist.; authored by Grover, J.], rev. granted – No. S219236: Positive settlement recovery can qualify as a “net monetary recovery” for purposes of routine cost recovery where the settlement agreement was silent in dealing with costs issues. [Discussed in our May 4, 2014 post; BLOG NOTE—Here is how the California Supreme Court has framed the issue: “When plaintiff dismissed her action in exchange for the defendant’s payment of a monetary settlement, was she the prevailing party for purposes of an award of costs under Code of Civil Procedure section 1032, subdivision (a)(4), because she was ‘the party with a net monetary recovery,’ or was defendant the prevailing party because it was ‘a defendant in whose favor a dismissal is entered’?”].
12. Mega RV Corp. v. HWH Corp., 225 Cal.App.4th 1318 (Apr. 30, 2014) [4th Dist., Div. 3; authored by Ikola, J.]: No “tort of another” fee recovery allowable where case had no underlying tort, siding with Sooy and disagreeing with majority decision in Manning and containing a footnote indicating the “tort of another” doctrine not relevant in most physical injury or property damages cases. [Discussed in our May
1, 2014 and May 21, 2014 posts.]11. Naser v. Lakeridge Athletic Club, 227 Cal.App.4th 571 (June 27, 2014) [1st Dist., Div. 5; authored by Bruiniers, J.]: Service and processing costs for business records subpoena, even if no deposition taken pursuant to the subpoena, are recoverable routine costs. [Discussed in our June 29, 2014 post.]