Part 2 of 2 –Remaining Ten Decisions Also Covered An Array Of Different Issues.
As we have done in past years, wishing all readers the happiest of holidays, we now finish off our top 20 published decisions from California appellate courts, the United States Supreme Court (SCOTUS), and the Ninth Circuit for the 2017 year. This list is not meant to slight other important decisions in certain areas, but these are the ones that “rose to the top” from our perspective. The number of ranking is not geared at all to the decision’s relative importance, and we do not mean to overlook other published decisions—not to mention the wealth of unpublished decisions on fees/costs issues which we reviewed in 2017. Although we have performed no empirical study, our practical experience posting decisions over the year would lead us to estimate that a third to one half of the civil/family law decisions involve fees and/or costs issues. So here we go on the remaining 10 decisions highlighted at the end of the 2017 year:
- INSURANCE – Pulte Home Corp. v. American Safety Indemnity Co., 14 Cal.App.5th 1086 (4th Dist., Div. 1 Aug. 30, 2017) – authored by Acting Presiding Justice Huffman; discussed in our Aug. 30, 2017 post: Modified contingency agreement possibly done to enhance insured’s award of Brandt fees reversed and remanded to calculate fees on the basis of the original pre-trial contingency arrangement.
- HOMEOWNER ASSOCIATIONS – Retzloff v. Moulton Parkway Residents’ Assn., No. One, 14 Cal.App.5th 742 (4th Dist., Div. 3 Aug. 23, 2017) – authored by Justice Moore; discussed in our Aug. 23, 2017 post: Civil Code section 5235(c), the Davis-Stirling Act’s costs-shifting provision relating to a situation where a trial judge finds an action against a prevailing common interest development to have been frivolous, unreasonable, or without foundation, only allows for recovery of routine costs rather than attorney’s fees. Appellate court also defined frivolous for purposes of the statutory section in line with the malicious prosecution attorney standard for frivolousness.
- SUBSTANTIATION OF REASONABLENESS OF FEES – Roth v. Plikaytis, 15 Cal.App.5th 283 (4th Dist., Div. 1 Sept. 13, 2017) – authored by Justice Dato; discussed in our Sept. 16, 2017 post: Trial judge erred in failing to consider prior motion declarations when adjudging a fee request in a subsequent fee motion proceeding, reconciling various California Rules of Court and summary judgment/adjudication motion principles in the process. “[W]e see no reason why incorporation by reference would be any less appropriate for a fee motion,” but observing that the preferred practice would be to refile previously-filed documents with the subsequent fee motion paperwork.
- ARBITRATION/BANKRUPTCY – In re CWS Enterprises, Inc., 870 F.3d 1106 (9th Cir. Sept. 14, 2017) – authored by Senior Circuit Judge Kleinfeld; discussed in our Sept. 16, 2017 post: Reconciling 11 U.S.C. § 502(b)(4) [Chapter 11 bankruptcy provision limiting pre-petition fees to reasonable value of attorney services] and 28 U.S.C. § 1738 [full faith and credit act involving an arbitration award], the Ninth Circuit determined that a district court must adjudge if the foreign award or judgment was reasonable but should give deference to the foreign award/judgment if the reasonableness issue was fully vetted.
- DISCOVERY/SANCTIONS – Padron v. Watchtower Bible and Tract Society of New York, Inc., 16 Cal.App.5th 1246 (4th Dist., Div. 1 Nov. 9, 2017) – authored by Acting Presiding Justice Huffman; discussed in our Nov. 10, 2017 post: Trial judge can impose a hefty daily, continuing monetary sanction against a party steadfastly refusing to comply with a discovery order.
- FEES ON FEES – Micha v. Sun Life Assurance of Canada, 874 F.3d 1052 (9th Cir. Oct. 31, 2017) – authored by Senior Circuit Judge Murphy (10th Cir., by assignment); discussed in our Nov. 1, 2017 post: District judge’s refusal under ERISA’s fee-shifting statute to award appellate “fees on fees” reversed where district court failed to focus on the entire course of the litigation rather than only concentrating on activities relating to the successful defense of the prior appeal.
- SECTION 1717 – California-American Water Co. v. Marina Coast Water Dist., __ Cal.App.5th __, 2017 WL 6397685 (1st Dist., Div. 1 Dec. 15, 2017) – authored by Presiding Justice Humes; discussed in our Dec. 19, 2017 post: Prevailing party successfully invalidating contract on non-per se illegality principles is entitled to Civil Code section 1717 fee recovery.
- CIVIL RIGHTS – Lopez v. Routt, 17 Cal.App.5th 1006 (2d Dist., Div. 3 Nov. 29, 2017) – authored by Judge Stone (Los Angeles County Superior Court, by assignment); discussed in our Dec. 2, 2017 post: Supervising employee FEHA defendant had to meet same frivolousness standard applicable to successful employer defendant in order to recover fees from an unsuccessful FEHA plaintiff.
- PROBATE – Pizarro v. Reynoso, 10 Cal.App.5th 172 (3d Dist. Mar. 28, 2017) – authored by Acting Presiding Justice Nicholson; discussed in our Jan. 19, 2017 and Mar. 29, 2017 posts: Fees incurred by prevailing trust/trustee are chargeable against the trust share of a beneficiary bringing an unfounded proceeding against the trust as well as against the trust share of a beneficiary taking unfounded positions (even though not bringing an independent proceeding) in a contested trust matter, citing Probate Code sections 17211(a) and 15642(d).
- FEE CLAUSE INTERPRETATION – Mountain Air Enterprises, LLC v. Sundowner Towers, LLC, 3 Cal.5th 744 (2017) – authored by Justice Chin; discussed in our Aug. 1, 2017 post: Fee clause language relating to “an action” or “a proceeding” did not encompass work relating to an affirmative defense, resolving a split in authority between different divisions of the Second District. The California Supreme Court, by a 4-3 vote, also found that “because of” language in a fees clause still gave rise to fee recovery where litigation efforts related to inextricably intertwined connections between two agreements with fees provisions, although not articulating the exact nature of the causal link necessary to allow for such fee recovery.
To go to Part 1 of 2 of our Top 20, click here.