Defense Should Have Apportioned In Its Moving Papers Or Asked For Supplemental Briefing Opportunity.
In Janisse v. MLK-L.A. Healthcare Corp., Case No. B326593 et al. (2d Dist., Div. 4 Sept. 3, 2025) (unpublished), plaintiff brought FEHA/whistleblower, and non-FEHA claims against defendant. Plaintiff lost all of her claims after a jury trial. The defense moved for fees and routine costs, with the trial court finding that plaintiff’s case was not frivolous in nature. The lower court denied both requests by the defense. Defendant appealed the denial of routine costs. The appellate court affirmed the denial of costs because defendant never allocated costs devoted to the non-FEHA claim in its moving papers and never requested a supplemental briefing opportunity on the allocation issue— showing the denial of costs was no abuse of discretion.
Due Process Required The Reversal.
In Conservatorship of the Person and Estate of Martha A., Case No. G063437 (4th Dist., Div. 3 Aug. 22, 2025) (unpublished), a conservator was awarded attorney’s fees of $94,955, a reduction from the request of $186,990 after the lower court entertained and granted certain oral objections by one of two daughters. Earlier, the trial court had indicated that all objections had to be in writing. The 4/3 DCA, in a 3-0 opinion authored by Justice Moore, reversed and remanded. The reason was due process: “Courts set procedures and briefing schedules for a reason—so that all parties know what to expect. This ensures fairness and due process. Following its own procedures is never more important than in a complex highly contested case . . . . [¶ ] Courts certainly have the power to reconsider or modify their own interim orders. (Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 388.) But if the court chooses to do so, particularly on a matter of significance, as a matter of due process, notice to the parties is required. (See Cal. Const., Art. I, § 7; In re Emily R. (2000) 80 Cal.App.4th 1344, 1351.)” The appellate court remanded and provided two options to the judge below: (1) the hearing would proceed based only on written objections; or (1) the trial court could conduct an evidentiary hearing on the second fee account.
Case Demonstrates How Fee-Shifting Is A Major Consideration In Modern Day Litigation.
City of Oakland, in Oakland Bulk & Oversized Terminal, LLC v. City of Oakland (2025) 112 Cal.App.5th 519, Case Nos. A169585 et al. (1st Dist., Div. 2 June 27, 2025), pet’n for review filed 8-6-2025, lost a ground lease termination case to plaintiffs under a lease with a fee shifting clause. As a result, because the merits determinations were affirmed, City suffered adverse fees and costs awards of close to $6.9 million, plus having to honor the ground lease which it wrongfully terminated according to the trial and appellate courts.
Fee Entitlement Still Allowed A Determination Of Reasonableness, With Record Supporting An Excessive Fee Request.
Reasonableness of a fee request is simply an important issue all clients and attorneys must consider when a fee/sanctions petition is filed. Where an excessive, unreasonable request is made, the lower court has a range of options, from denying the request altogether or making reductions of a substantial nature.
That last option occurred in Pritikin v. LG Electronics U.S.A., Inc., Case No. G063695 (4th Dist., Div. 3 Aug. 21, 2025) (unpublished).
There, an employer failed to pay costs and expenses to continue an arbitration involving an employee. The arbitration apparently was abandoned after those expenses were not paid, with employee moving to recover material breach of arbitration agreement sanctions under CCP §§ 1281.98 and 1281.98 for fees incurred in the arbitration ($14,475) and for “fees on fees” in bringing the fees motion ($3,178.50), totaling $17,653.50. The lower court found that the fee request was excessive, awarding $2,060 after indicating the number of hours and hourly rate which it deemed reasonable. The appellate court affirmed, in a 3-0 opinion by Justice Delaney.
The first issue was what arbitration sanctions provision applied. The 4/3 DCA decided that section 1281.98 applied because employer materially breached the arbitration agreement by not paying expenses to have the arbitration continue; it had paid the arbitration initiation fees. Once a material breach occurs under 1281.98, the lower court imposes sanctions under section 1281.99. Section 1281.98(c)—expenses incurred before the material breach—is a discretionary provision, whereas section 1281.99 concerning expenses incurred after the material breach is mandatory in nature. Nevertheless, the appellate court considered sanctions under both provisions as engrafting a reasonableness standard into the ultimate imposition decision making.
Because discretionary decisions on the amount of fees awarded are reviewed under the abuse of discretion standard, the lower court’s award was proper because it determined that the request was inflated, a special circumstance where the attorney’s fee substantiation did not have to be blindly credited by the trial judge.
The Notice Of Appeal Only Attached The Merits Judgment, Which No Mention Of Fees.
Myers v. Quality Care Home, Inc., Case No. C101659 (3d Dist. Aug. 20, 2025) (unpublished) involved a situation we have seen many times. Defendant was hit with a $78,000 wage/hour fee award after a more minor unpaid wage judgment was entered against an employer. The judgment made no mention of fees, and defendant only appealed the merits judgment. The appellate panel in Myers refused to entertain a challenge to the fees award because defendant failed to independently appeal the postjudgment order. As we have said many times before, separately appeal any fees order, even if you think it might be subsumed in the merits judgment (which it often is not).
Only The Arbitrator Had The Authority.
Claimant prevailed in an arbitration, but it failed to request attorney’s fees as required by AAA rules in claimant’s answering statement. The arbitrator refused to award fees based on this omission. Claimant then sought fees from the lower court when petitioning to confirm the award. The damages award was confirmed, but the superior court denied the request of claimant for $65,868 in fees. The appellate court, in Techna Land Co., Inc. v. 2733 SFLA, LLC, Case No. B343099 (2d Dist., Div. 4 Aug. 20, 2025) (unpublished), affirmed that only the arbitrator had authority to award fees such that the lower court properly found it had no jurisdiction to do so. (Corona v. Amherst Partners, 107 Cal.App.4th 701, 704, 706 (2003).)
Consumer Legal Remedies/Elder Abuse Statutes Did Not Preempt, Although Defense Costs Had To Be Reviewed On Remand To Make Sure They Were Not Inflated In Nature.
In Johnson v. Stoneridge Creek Pleasanton CCRC LLC, Case No. A170383 (1st Dist., Div. 4 Aug. 19, 2025) (published), the question was whether a continuing care retirement community could increase annual budgets for anticipated defense costs of class actions brought under the CLRA and Elder Abuse Act? The trial court answered “no” because it found that would contravene the fee-shifting, pro-plaintiff provisions of those two Acts. The appellate court reversed, determining that the increases were permissible under Health & Safety Code section 1788. However, the appellate panel did remand and indicated that the fee “reserves” could not be inflated in nature when the issue was reexamined.
No Fee Entitlement Was Shown.
Plaintiff obtained mandate relief against a municipality in a permit revocation dispute, subsequently moving for attorney’s fees under reciprocal fee-shifting provisions of the Perris Municipal Code relating to public nuisances. The lower court denied Plaintiff’s motion for fees under the municipal code. That determination was affirmed on appeal in Dynamic Meds, Inc. v. The City of Perris, Case No. D084808 (4th Dist., Div. 1 Aug. 18, 2025) (unpublished) because plaintiff’s action was not grounded in a public nuisance abatement theory. Given this being so, there was no fee entitlement.
The Result Was That Car Manufacturer’s Request For Costs Had To Be Revisited And The $200,000 Fee Award To Plaintiffs Had To Be Reevaluated.
In Zavala v. Hyundai Motor America, 107 Cal.App.5th 458, 463 (2024), rev. granted, No. S289000 (March 19, 2025), the 4/1 DCA concluded that CCP § 998 offers may include simultaneous, independent options the offeree can select from and that both options had to be evaluated for section 998 fee/cost shifting purposes.
Zavala was upfront and put into consideration, again, in Maqueda v. Kia Motors America, Inc., Case No. D083298 (4th Dist., Div. 1 Aug. 14, 2025) (unpublished). There, in a lemon law case, car manufacturer Kia sent a 998 offer to plaintiffs with independent options: a $25,000 lump-sum cash payment or a statutory option to recover certain category of expenses subject to proof. Plaintiffs did not accept either option, but they only won $16,471.66 from a jury. The lower court determined that the statutory option was not specific enough, so it granted Plaintiffs’ motion to tax Kia’s costs memorandum and also awarded Plaintiff just over $200,000 in lemon law attorney’s fees.
Those results were reversed on appeal by the 4/1 DCA. The 4/1 DCA panel saw no reason to veer from Zavala, despite several technical arguments advanced by plaintiffs. So, the matter had to be remanded to determine post-offer costs allowable to Kia and to determine what fees were allowable to plaintiffs.
Record Below Showed The Lower Court Pulled The Trigger Too Fast.
Tragni v. Tragni, Case No. A169130 (1st Dist., Div. 5 Aug. 12, 2025) (unpublished) is one of those rare cases where a needs-based family law award to an ex-wife was reversed for an abuse of discretion. We now explore why.
Ex-wife received all requested Family Code 2020/2032 needs-based fees for discovery efforts, to the tune of $165,188.75. Although ex-husband likely could bear it from a financial standpoint, the appellate panel did not believe the lower court reasonably evaluated whether her discovery efforts were reasonable or over-litigated in nature, especially deciding the fee award before a discovery referee came out with rulings. Reversed for a remand on reasonableness of requested fees.
Net Result Was Some Were Affirmed And Some Reversed.
Madrigal v. CTV, LLC, Case Nos, F087500 et al. (5th Dist. Aug. 12, 2025) (unpublished) was a wage/hour employment case where the results were very mixed—plaintiff Madrigal voluntarily dismissed the case; plaintiff Silva accepted a $28,000 CCP § 998 offer; plaintiff Cortez obtained a $25,282 jury verdict; and employer counter-sued management employee Paim (who also brought claims against employer), with Paim’s claims dismissed and employer obtaining a $521 verdict against Paim. That led to lots of post-judgment motions for fees and costs.
Employer moved to recover costs and fees against plaintiff Madrigal, but that motion was denied because Madrigal’s case was not brought in bad faith. This denial was affirmed because the appellate court engrafted FEHA “bad faith” concepts into Labor Code section 218.5 in the absence of any published authority to otherwise assist, agreeing Madrigal’s case was not brought in bad faith.
Employer moved to recover costs against Paim, but the lower denied the motion as untimely and further indicated that the employer was not the prevailing party. Although the untimeliness ruling was reversed, the appellate court agreed Paim was not liable for costs because offsets on an equitable indemnity claim did not make employer the prevailing party.
Plaintiffs Silva and Cortez obtained a fees and costs award against third-party defendant Paim, but this was reversed because the two plaintiffs did not sue Paim, with no authority indicating that plaintiffs could recoup Labor Code statutory fees against a party they did not sue.
Hourly Rate Was Found To Be Reasonable.
In I.S. Investments, LLC v. Zamucen, Case No. G064105 (4th Dist., Div. 3 Aug. 11, 2025) (unpublished), plaintiff lost a case to prevailing defendants where there was a contractual fees clause in favor of the defense. Defendants moved for fees of $187,608 based on an hourly rate of $600, with the lower court awarding a reduced amount of $168,584.25 based on a $575 hourly rate. Plaintiff’s appeal for a reduction didn’t succeed, given that the amount of a fee award is reviewed under the deferential abuse of discretion standard. Notwithstanding that defense counsel billed clients at a lower hourly rate, that rate was not dispositive such that the lodestar rate could be set at a higher amount. (Pasternack v. McCullough, 65 Cal.App.5th 1050, 1055-1056 (2021) [fee arrangement does not limit market rate applicable under a lodestar analysis].)
However, CCP § 473 Principles Can Excuse An Untimely Payment By A Company Or Employer Desiring Arbitration With Respect To Tardy Payment Of Employee’s Or Consumer’s Arbitration Expenses.
Hohenshelt v. Superior Court, Case No. S284498 (Cal. Supreme Court Aug. 11, 2025) (published) finally resolved an intermediate appellate split in thinking on whether the CCP § 1281.98 30-day deadline for a non-consumer company/employer to pay the other side’s arbitration expenses is preempted by the FAA. Our state high court answered “no,” but it did indicate that an untimely payment could be excused by a good faith mistake, inadvertence, or other excusable neglect principles (engrafting CCP § 473 constructs into the mix).
Attorneys Should Have Latitude To Represent Clients In Settlement Activities Without Fear Of Suits By Third Parties, Including the Beneficiary of the Settlement Funds.
In Ramirez v. McCormack, Case No. B340986 (2d Dist., Div. 8 Aug. 8, 2025) (published), the appellate court vindicated that attorneys representing their clients in a settlement agreement generally do not have to answer to third parties in making sure the settlement is consummated in a fair manner. What happened here is that an attorney representing settling parties balked at sending the settlement check to a different address than the settlement beneficiary’s counsel. The settlement beneficiary sued on various tort theories, with attorney moving to SLAPP the beneficiary’s complaint. The lower court denied the SLAPP motion, but that all changed on appeal.
The 2/8 DCA, in an opinion authored by Justice Wiley, reversed. It found the attorney’s activities were protected because they related to her representation of the client as against a third party, endorsing the same conclusion reached in Thayer v. Kabateck Brown Keller LLP, 207 Cal.App.4th 145, 158 (2012). Based on that reversal, directions were issued to grant the SLAPP motion and determine the reasonable fees/costs to attorney as prevailing party.
Petitioner’s Dilatory Request For Subpoena Enforcement Before The DMV Hearing Officer Did Not Warrant Fees Under Government Code Section 800.
Government Code section 800 requires an award of attorney’s fees to a prevailing complainant in a civil action to review a ruling in an administrative proceeding, but only if the award, finding, or determination was the result of arbitrary or capricious action by a hearing officer or administrative judge. However, the “arbitrary and capricious action” language was the key, and it was not met by prevailing petitioner in Cox v. Gordon (DMV Director), Case No. D083386 (4th Dist., Div. 1 Aug. 8, 2025) (unpublished).
After an administrative per se (APS) hearing, the DMV upheld the license suspension of petitioner based on a DUI arrest. Later, petitioner obtained a rescission of the suspension based on a Second District decision holding that a hearing officer could not be both an advocate and adjudicator for the DMV. In the actual APS hearing, petitioner attempted to enforce a subpoena request to the Sheriff’s Department for certain information, but the Department objected to the request months before the hearing and petitioner only raised it on the day of the hearing before the DMV hearing officer, who refused to address the discovery dispute in the middle of the defense case. Given this record, section 800 did not justify an award of fees to petitioner based on the discovery dispute chronology—the hearing officer was not arbitrary in choosing not to get entangled in the discovery dispute. However, the appellate court did note that if the DMV wanted to conduct a new APS hearing, petitioner could renew a request for production of the previously sought-out information on remand.
Many Of The Attorneys Billed At Least $1,300 Per Hour.
According to an August 8, 2025 article by Andrew Khouri and David Zahniser in the Los Angeles Times, Gibson Dunn & Crutcher LLP, representing City of Los Angeles, in a homeless encampment case after a favorable municipal ruling by SCOTUS on the legality of homeless ban practices, submitted an invoice of $1.8 million for May 2025 work. At least 15 attorneys were billing out at close to $1,300 per hour. Ironically, a month later, U.S. District Judge David O. Carter (who sits in Santa Ana) issued a ruling that City was not complying with a three year old settlement agreement between City and the L.A. Alliance for Human Rights to create 12,915 homeless beds or other housing accommodations by June 2027.
Although Reducing The Requested Hourly Rates For Sonoma County, The Rest Of The Lodestar Request And 1.5 Positive Multiplier Request Were Affirmed.
In Pelayo v. Utility Partners of America, LLC, Case No. A171211 (1st Dist., Div. 1 Aug. 7, 2025) (unpublished), plaintiff employees settled with employer, after contentious litigation on the eve of trial, under an agreement which allowed the trial judge to determine the employment statutory attorney’s fees to plaintiffs as prevailing parties. The venue of the case was Sonoma County. Plaintiffs moved to recover $2,401,622 in fees, based on Los Angeles hourly rates of $500-800 and inclusive of a 1.5 positive multiplier. The lower court reduced the hourly rates to $400-600 (not using L.A. rates), but it denied the defense’s other reductions and its objection to a multiplier by awarding $1,767,649.50 in fees.
The defense appeal did not alter the award. The lower court did reduce the hourly rates, with plaintiffs’ experts supporting the rate range eventually awarded by the trial judge for Sonoma County. When it came to the claims that the overall lodestar request was unreasonable, the defense complaints relatively were minor, and employer’s failure to mention how many hours its attorneys expended was a missing gap that the lower court could not ignore. (Pollock v. Kelso, 107 Cal.App.5th 1190, 1197 (2025) [opposing counsel work effort is probative on reasonableness of fees].) Finally, because the case was taken on a contingency basis and the complexity of the case was not just a “cookie cutter” matter, there was no abuse of discretion in granting the 1.5 positive enhancement. (The lower court did not have to give a detailed explanation to justify the multiplier, contrasted with other appellate opinions where a 16-times and 2.5 multiplier requests were found large enough to need some further reasoning for appellate scrutiny.)
On Appeal, Appellant Failed To Take Trial Court’s Findings Into Account, And Failed To Show Abuse Of Discretion.
Prevailing petitioner, a local citizens group, successfully obtained a preliminary injunction to vindicate CEQA concerns in Save Petaluma v. City of Petaluma, Case No. A169925 (1st Dist., Div. 2 Aug. 5, 2025) (unpublished). It successfully fought city approval of a gas station without following CEQA. Subsequently, it obtained a costs award of $7,670.55 and a CCP § 1021.5 award of $613,893.75 in attorney’s fees (fees included a 1.5 positive multiplier) against City.
City’s appeal was unsuccessful. With respect to costs, even though the petitioner was not a catalyst, it still prevailed by stalling a project based on not adhering to CEQA directives. Fees, too, were justified because CEQA is an important right which often gives rise to fee entitlement (see Canyon Crest, 45 Cal.App.5th at 409).
Because The Statute Is Discretionary, The Trial Judge Was The One To Determine If Fees Should Be Awarded.
In G.I. Industries v. City of Thousand Oaks, Case No. B337103 (2d Dist., Div. 6 Aug. 5, 2025) (unpublished), the 2/6 DCA reversed a trial court’s ruling that there was no Brown Act violation because an exception was applicable. The appellate court found a particular city action was null and void based on the Brown Act violation. The Brown Act, at Government Code section 54960.5, has a discretionary attorney’s fees shifting provision. Even though there was case law indicating that normally fees are awarded unless the circumstances show the result would be unjust (Los Angeles Times Communications v. Los Angeles County Board of Supervisors, 112 Cal.App.4th 1313, 1327 (2003)), the appellate panel found that it should remand so that the trial court could decide the issue.