Year End Wrap-Up: Mike and Marc’s Top 20 Decisions in 2019
Courtroom three, James R. Browning U.S. Court of Appeals Building, San Francisco, California
Part 1 of 2—CCP § 998 Decisions Were Front and Center in Early 2019, With Other Issues Spread Across the Board.
It is the Holiday season, and we continue our tradition to present our personal top 20 decisions from our blog postings during 2019, keeping in mind they are simply a distillation of what we selectively picked as important. Day in and day out, California appellate courts and the Ninth Circuit decide fees issues—and we do not mean to take away from the jurisprudence in other areas of the law, given that first impression or emerging issues were addressed at various points during the year.
20. MEDIATION. Berkeley Cement, Inc. v. Regents of the University of California, 30 Cal.App.5th 1133 (5th Dist. Jan. 7, 2019)—authored by Presiding Justice Hill; discussed in our January 8, 2019 post: Voluntary, non-court ordered mediation expenses are not categorically unreasonable with respect to being awarded as routine costs, with the trial judge having discretion to allow them if reasonably necessary for the litigation.
19. SECTION 998. Licudine v. Cedars-Sinai Medical Center, 31 Cal.App.5th 918 (2d Dist., Div. 2 Jan. 3, 2019)—authored by Justice Hoffstadt; discussed in our January 4, 2019 post: In evaluating whether a CCP § 998 offer is made in good faith, three factors are most pertinent: (1) how fair into the litigation the section 998 offer was made; (2) the information available to the offeree prior to the section 998’s offer expiration (such as voluntary exchanges of information or the relationship between the parties); and (3) whether the offeree let the offeror know it needed more information, plus the offeror’s response to such a request.
18. ARBITRATION/SECTION 998. Heimlich v. Shivji, 7 Cal.5th 350 (Cal. Supreme Court May 30, 2019)—authored by Justice Corrigan; discussed in our May 31, 2019 post: Rejected CCP § 998 offer should not be presented before the arbitrator in the merits phase of an arbitration; a party has until 15 days after issuance of a final award to submit a cost request asserting rejection of the section 998 offer to the arbitrator, with the arbitrator having power to consider the request and amend any award accordingly.
17. APPEALABILITY/ETHICS. Levinson Arshonsky & Kurtz LLP v. Kim, 35 Cal.App.5th 896 (2d Dist., Div. 1 May 29, 2019)—authored by Assigned Justice Weingart; discussed in our May 30, 2019 post: A trial court’s denial of a petition to compel a Mandatory Fee Arbitration Act arbitration is not appealable, but must be challenged through an extraordinary writ petition.
16. EMPLOYMENT/SECTION 1717: Dane-Elec Corp. v. Bodokh, 35 Cal.App.5th 761 (4th Dist., Div. 3 May 24, 2019)—authored by Justice Fybel; discussed in our May 26, 2019 post: Labor Code § 218.5(a)’s prohibition of not allowing attorney’s fees recovery by prevailing employers (unless the trial judge determines the wage nonpayment claims were brought in bad faith) controls over Civil Code § 1717’s right to contractual fees in a case where the contractual claim is inextricably intertwined with the wage claims.
15. PRIVATE ATTORNEY GENERAL. Sweetwater Union High School v. Julian Union Elementary School Dist., 36 Cal.App.5th 970 (4th Dist., Div. 1 June 4, 2019)—authored by Justices Nares; discussed in our June 9, 2019 post: In a charter school dispute, plaintiff’s partial success justified CCP § 1021.5 fee recovery because charter school issue is of public interest and the revenue gain from increased enrollment as a result of partial success was trivial when compared to litigation expenses on the Whitley financial burden/incentive prong of § 1021.5.
14. REQUESTS FOR ADMISSION. Samsky v. State Farm Mutual Auto. Ins. Co., 37 Cal.App.5th 517 (2d Dist., Div. 8 June 26, 2019)—authored by Justice Stratton; discussed in our June 30, 2019 post: Denial of “costs of proof” sanctions under CCP § 2033.420 is reversed because the lower court improperly put the burden of proving the nonexistence of RFA denial exceptions on the RFA propounding party rather than the RFA responding party.
13. FAMILY LAW. In re Marriage of Ciprari, 32 Cal.App.5th 83 (2d Dist., Div. 1 Feb. 6, 2019)—authored by Assigned Justice Currey; discussed in our June 25, 2019 post: Even though ex-wife could pay for attorney’s fees, “needs-based” fees request analysis requires a more nuanced review where ex-husband had run up litigation expenses and over-litigated the dissolution case.
12. CONSUMER STATUTES (a two-fer). Hanna v. Mercedes-Benz USA, LLC, 36 Cal.App.5th 493 (2d Dist., Div. 2 June 18, 2019)—authored by Presiding Justice Perluss; discussed in our June 19, 2019 post: Under lemon law fee-shifting statute (Civ. Code § 1794(d)), fee recovery for a prevailing car buyer is based on lodestar analysis, unimpacted by percentage of recovery contingency analysis, and Morris v. Hyundai Motor America, 41 Cal.App.5th 24 (2d Dist., Div. 7 Sept. 16, 2019)—authored by Assigned Justice Stone; discussed in our Sept. 17, 2019 post: relying on Hanna, trial judge properly reduced lemon law fee request of $191,668.75 to an actual fee award of $73,864 based on lodestar reductions, reducing for duplication, high hourly rates, non-complexity of the case, and failure to use legal professions with lower billing rates.
11. POSTJUDGMENT ENFORCEMENT. Wertheim, LLC v. Currency Corp., 35 Cal.App.5th 1124 (2d Dist., Div. 1 June 6, 2019)—authored by Justice Chaney; discussed in our June 10, 2019 post: Appeal bond issuer’s deposit into court was not a satisfaction of judgment under CCP § 685.030(d) where judgment debtor blocked judgment creditor’s efforts to obtain recovery of the deposited funds.
Happy Holidays to our readers!