Wrapping It Up: M & M’s Top 2012 Decisions — Part 1 of 2.
It is that time of year, at year end 2012, for us to list our top 25 published attorney’s fees decisions from the U.S. Supreme Court, Ninth Circuit Court of Appeals, and California Courts of Appeal.
We might note that 2012 looms as an important year for the California Supreme Court to decide an important multiple offers issue arising under California Code of Civil Procedure section 998. The case pending for review, with no oral argument yet scheduled, is Martinez v. Brownco Construction Co., Inc., which we will discuss below.
We opt to report and score on the top 25, keeping in mind that appellate jurists did decide many other important cases (both in published and unpublished dispositions). These are our favorites in a wide range of areas, so enjoy. This will be the first 13 cases, with 12 more to follow in a subsequent post–likely closer to year’s end. (The numbering of these cases is random, so no attempt is made to score their importance given that they arise out of many different substantive practice areas.)
25. Lin v. Jeng, 203 Cal.App.4th 1008 (Feb. 23, 2012) [2d Dist., Div. 4]: Trial court’s discretion to equitably apportion fees in partition actions is broad, disagreeing with limitations set on such discretion in Finney v. Gomez, 111 Cal.App.4th 527, 545-546 (2003). [Discussed in our Feb. 24, 2012 post.]
24. Lefemine v. Wideman, 568 U.S. __, No. 12-168 (Nov. 5, 2012) [U.S. Supreme Court, per curiam]: Plaintiff winning a permanent injunction entitled to fees under federal civil rights fee-shifting statute (42 U.S.C. § 1988), because injunctive or declaratory relief generally has a material alteration of relationships between the parties. [Discussed in our Nov. 5, 2012 post.]
23. Greenberg Glusker Fields Claman & Machtinger LLP v. Rosenson, 203 Cal.App.4th 688 (Feb. 15, 2012) [2d Dist., Div. 5]: Law firm did not have to compel contractual arbitration under retainer agreement with client, but could simply demand arbitration within 30 days of Mandatory Fee Arbitration Act (MFAA) award in order to preserve contractual arbitration rights. [Discussed in our Feb. 16, 2012 post.]
22. SCI California Funeral Services, Inc. v. Five Bridges Foundation, 203 Cal.App.4th 549 (Feb. 14, 2012) [1st Dist., Div. 5]: (a) Both plaintiffs and defendants can obtain postoffer fees as costs under Code of Civil Procedure section 998; and (b) Plaintiff was entitled to postoffer fee recovery under section 998 even though it did not obtain fees under Civil Code section 1717. [Discussed in our Feb. 14, 2012 post.]
21. Martinez v. Brownco Constr. Co., Inc., formerly published at 203 Cal.App.4th 507 (Feb. 10, 2012) [2d Dist., Div. 1], rev. granted, No. S200944 (May 9, 2012) [California Supreme Court]: Code of Civil Procedure section 998 offeror making successive 998 offers entitled to cost shifting from the date of the earliest reasonable offer, meaning expert witness fees incurred for the period between the two offers were recoverable and disagreeing with Wilson v. Wal-Mart Stores, Inc., 72 Cal.App.4th 382 (1999) as well as Distefano v. Hall, 263 Cal.App.2d 280 (1968). [Discussed in our Feb. 11 & Aug. 4, 2012 posts.]
20. Secalt S.A. v. Wuxi Shenxi Constr. Machinery Co., Ltd., 668 F.3d 677 (Feb. 7, 2012) [9th Cir.]: Defense “utter lack of proof” victory qualified as “exceptional” case giving rise to fee-shifting under Lanham Act section 35(a), 15 U.S.C. § 1117(a). [Discussed in our Feb. 8, 2012 post.]
19. Chaaban v. Wet Seal, Inc., 203 Cal.App.4th 49 (Jan. 31, 2012) [4th Dist., Div. 3]: Code of Civil Procedure section(c)(1) allows a trial court to award defendant’s expert fees, regardless of whose witness the expert is, in the event plaintiff does not beat a defense 998 offer. [Discussed in our Feb. 1, 2012 post.]
18. Baker v. Mulholland Security & Patrol, Inc., 204 Cal.App.4th 776 (Mar. 28, 2012) [2d Dist., Div. 8]: Expert witness fees not awardable against losing Fair Employment and Housing Act (FEHA) plaintiff unless lawsuit determined to be unreasonable, frivolous or vexatious in nature. [Discussed in our Mar. 30, 2012 post.]
17. Walker v. Ticor Title Co. of California, 204 Cal.App.4th 363 (Mar. 15, 2012) [1st Dist., Div. 1]: Financial impact on a losing party is a factor that cannot be used to reduce a Civil Code section 1717 fee award. [Discussed in our Mar. 16, 2012 post.]
16. Bates v. Presbyterian Intercommunity Hospital, Inc., 204 Cal.App.4th 210 (Mar. 12, 2012) [2d Dist., Div. 4]: Losing plaintiff in elder abuse action liable for cost shifting under Code of Civil Procedure section 998. [Discussed in our Mar. 12, 2012 post.]
15. People ex rel. Dept. of Transportation v. Superior Court, 203 Cal.App.4t
h 1505 (Mar. 1, 2012) [3d Dist.]: Condemnor governmental entity accepting condemnee’s final demand several days before trial not subject to litigation expenses exposure under Code of Civil Procedure section 1250.410. [Discussed in our Mar. 2, 2012 post.]14. Farag v. ArvinMeritor, Inc., 205 Cal.App.4th 372 (Apr. 24, 2012) [2d Dist., Div. 3]: Code of Civil Procedure section 998 offer jointly made to husband and wife in a personal injury case is valid, agreeing with Barnett v. First Nat’l Ins. Co. of America, 184 Cal.App.4th 1454 (2010). [Discussed in our Apr. 26, 2012 post.]
13. Collins v. City of Los Angeles, 205 Cal.App.4th 140 (Apr. 20, 2012) [2d Dist., Div. 3]: Trial court should peg Code of Civil Procedure section 1021.5 (private attorney general) award to estimated value of the case rather than the actual recovery in a class action context, disagreeing with Robinson v. City of Chowchilla, 202 Cal.App.4th 382, 402 & n. 6 (2011). [Discussed in our Apr. 22, 2012 post.]