Cal Biz Lit

Attorneys' Fee Awards in California III: More Attorney Fee Shifting Statutes

    In an earlier post, I wrote about contractual fees to the prevailing party, how a one-sided fee provision in a contract becomes bilateral by operation of law, and how a narrow fee provision can relate to all disputes between the parties to a contract.  In a second post, I discussed fee awards in civil rights, employment and public interest litigation.

    There are scores of fee-shifting statutes in California, many of them dealing with fairly rare and obscure kinds of litigation.  But in this post, I’m going to talk about a few of them, roughly in the order of likelihood that a business litigating in this state is likely to encounter them.

    The post continues after the jump.

Contractual Attorney Fee Awards When There's No Jurisdiction over the Defendant

I'm still trying to finish my three-part series on attorneys' fees.  Soon, I promise.  But I keep seeing new cases.  Since part of the audience for this blawg is non-California companies who find themselves ensnared in litigation here, this story with a happy ending for an out-of-state litigant might be of interest.

I previously blogged here about contractual attorneys' fees.  The fundamental principal is in Civil Code section 1717:  if the contract says Party "A" gets fees if he wins, and Party "B" wins instead, the law makes the contractual provision mutual:  Party "B" gets fees, even if the contract only addresses party "A's" rights.

Which brought us, yesterday, to Profit Concepts v. Griffith  (2008) ___ Cal.App.4th ___ (4th District, G039077).  Profit Concepts was a California corporation with an ex-employee, Griffith,  residing in Oklahoma.  It sued him for breach of contract, trade secrets violations and for an injunction (perhaps not a wise idea in general, but that discussion is for another day).   Griffith moved to quash service on the ground that the California courts had no jurisdiction over him.  Profit Concepts filed a "statement of non-opposition," and now I really don't know what the company, or its lawyers, were thinking.  So the motion to quash was granted.

Now comes the attorneys' fees part.  There was an employment contract, which provided that if Griffith breached the contract, Profit Concepts could get an injunction, damages and attorneys' fees.  In other words, the contractual right to fees was unilateral in Profit Concepts' favor. 

The parties agreed that the unilateral language had to be enforced mutually under section 1717.  (What was this employer doing here, anyway?)  But Profit Concepts contended that Griffith wasn't a "prevailing party" just because he got the case dismissed for lack of jurisdiction.

Wrong.  Fees awarded to Griffith, the non-California resident.  The case was going no further, he was dismissed, so he was the prevailing party.  Oh, and the amount of the fees and costs?  $3,400.78.  That's what was at stake in this appeal.  What was this employer thinking?

Oh For The Bad Old (Pre-Prop 64) Days

For those of you who are late arrivals to the party, back in the old days we used to have large amounts of litigation under California's UCL (Business and Professions Code sections 17200 and following).  Plaintiffs' lawyers would find an industry they could challenge based on hyper-technical, meaningless violations of obscure laws and regulations, and have one client sue everyone in the industry "acting in the public interest."  It mattered not whether the plaintiff had ever done business with, had any connection with, or even heard of any of the defendant businesses.

Then those killjoys the California voters came along and enacted Proposition 64, prohibiting private enforcement actions unless the plaintiff had "suffered injury in fact and lost money or property as a result" of the defendant's acts.  And that amendment to the law -- with its revolutionary premise that people who are wronged are the ones who get a remedy -- seems to have shut down most of the UCL litigation.

But some people just never give up.  Take, for example, O'Brien v. Camiscasca Automotive Engineering (2008) ___ Cal.App.4th ___ (B195641).  Mr. O'Brien filed his purported class action under the UCL, the Consumer Legal Remedies Act (Civil Code section 1750 and following) and the False Advertising Act (Business and Professions Code section 17500 and following) contending that the  defendants  had made false representations concerning the origin of their products.  But he admitted in his deposition that he had never seen the representations  before he bought the product, so the Court of Appeal affirmed summary  judgment against him;  if  he didn't see the allegedly false representation, it certainly didn't cause him harm. 

And the Court of Appeal further found there was nothing wrong with the trial court entering judgment five weeks later, before the plaintiff had a chance to confer with the court about amending his complaint to add a new plaintiff that actually had seen the representation.  Thus, Mr. O'Brien was deprived of the right to lead the charge protecting consumers against fraudulent misrepresentations by these defendants.

And what was the false representation?  Mr. O'Brien bought an Audi license plate frame.  Stamped on the back of the package were the words "Made in USA."  O'Brien alleged that it was not, in fact, made in the USA.  He admitted he had no complaints about the quality of the license plate frame, which "looked good," "was nice," "appeared to be new" and fit the expectations he had when he placed the order.

Quelle horror!  I just can't understand why the California voters would want to put a stop to this kind of nonsense.

Friday off-topic post:

RIP Israel "Cachao" Lopez, bassist and the inventor of Mambo, passed away last Saturday at age 89 in Florida.

Cachoa continued to delight as recently as last year, as evidenced by the following:

And if that's not enough, here he is with the legendary Cuban pianist, Bebo Valdez.  Have a great weekend.

Attorneys’ Fees and Fee Awards In California – Part II

    Last week, I posted about contractual attorney fee provisions, and situations where a prevailing party could be awarded attorneys’ fees because of a provision in a contract.  This week, the subject is the award of fees in civil rights, employment and public interest litigation.  This is a long post, so I'm putting the rest of it after the jump.  When all three posts are up, I'll probably try to incorporate them all into a white paper.

So as we often say, lots more after the jump.

Attorneys’ Fees and Fee Awards Under California Law, Part I

    The original purpose of this blog was to provide commentary on California law for out-of-state companies and others who only occasionally have to deal with litigation here in the Golden State.  And one area where I get many questions in my practice has to do with attorneys’ fees and California’s fee-shifting statutes.

    I’ve been trying to get around to writing a white paper on the subject, and haven’t been able to do it (that pesky law practice of mine keeps getting in the way).  So instead, I’m going to try to put together a series of posts, probably three of them, discussing the fundamental rules having to do with fee shifting.  In today’s post, I’ll be talking about the basic rule, where the parties pay their own fees, and Civil Code section 1717, California’s contractual fees reciprocity statute.  The second post will be about the public attorney general statute, fees in civil rights and employment litigation, lodestars and multipliers.  The final post (probably) will discuss fees in consumer litigation.

    So first, the basic rule: Under California’s Code of Civil Procedure section 1021, if there is no statute or contract to the contrary, the parties to a suit pay their own fees (although the prevailing party is entitled to certain costs, which are usually pretty minimal).

    That was the easy part.  We start with the hard part after the jump.

Objections to Form Interrogatories

Just a few hours after posting my white paper on written discovery, I encountered this post at Storm's Employment Law, criticizing the abuse of form interrogatories and raising the issue whether these interrogatories -- approved by the California Judicial Council -- can be objected to.  Actually, it seems quite clear that they can be objected to just like any other inappropriate interrogatories.  The Court of Appeal held in Nacht & Lewis Architects, Inc. v. Superior Court (1996)  47 Cal.App.4th 214 that Form Interrogatories 12.2 and 12.3 (asking for names of persons from whom a party has taken statements) violate the attorney client privilege and work product doctrine.

New Adams Nye White Paper on Discovery

One of the primary reasons for this blawg is to provide useful information for non-California lawyers, general counsel and others who only occasionally deal with California litigation.  And it has been my intention to periodically post white papers with fairly comprehensive treatments of nuts and bolts issues for this audience.  These white papers may be old news for those of us who are in the trenches here every day, but will undoubtedly contain surprises for those lawyers for whom California litigation is a strange and rare experience.

I haven't been able to post as many of these as I'd like;  they do take some time.  In the past, I've posted a white paper on Proposition 65 and another on product liability law.

Today, I'm posting a new one:  The Discovery Follies:  Inspection Demands, Interrogatories, Requests for Admissions and Expert Disclosure in California.
Hope some of you find this useful.

Getting Your Case Thrown Out For Just Being Really, Really Bad

Is it true?  Can a California court throw you out on your ear just for being really, really, bad?  And what in the world could that have to do with the bear with very little brain? 

The answer to the first question is “yes.”  The answer to the second question appears in Stephen Slesinger, Inc v. The Walt Disney Company (September 25, 2007) B178340.  More after the jump.

No Damage Suit Against Auto Makers For Causing Global Warming

Back when I was in law school in the 1970's, there was a fella named Jerry Brown, got himself elected governor of California.  He was disparagingly referred to as “Governor Moonbeam.”  He eschewed the perks of office, living in a small, barely furnished apartment in downtown Sacramento. Instead of riding in a limo or town car, he rode in a used Pontiac Satellite   (it turned out he had identical used cars in different parts of the state).  A lot of business interests felt he wrecked the state’s courts during that era, and although I’m not prepared to agree, there were certainly a good many off-the wall appellate decisions during that era (my favorite:  Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49 (Findlaw subscr. req'd), finding a legal duty on the part of the telephone company not to place a pay phone booth where a drunk driver might jump the curb and run into it).

Anyway, Jerry had a notoriously short attention span.  He ran for president three times times, chaired the California Democratic party, ran for the senate, ran kind of a zen-like think tank, operated a public radio show, then ran for and served two terms as Mayor of Oakland.  Most recently, he ran for and was elected Attorney General, an office he’s held since the first of this year.

As Attorney General, Jerry inherited a case (brought by his predecessor, Bill Lockyer) against the big six auto makers, contending that they were guilty of nuisance and owed the State of California bazillions in damages for causing global warming.  And if that weren’t enough of a reach, instead of filing it in San Francisco, Alameda or Los Angeles state courts, where there are some judges who might go for this sort of thing, Lockyer filed the case, and Jerry prosecuted it, in the Federal Northern District.  To try to create jurisdiction, they cooked up the theory that there was a federal tort cause of action for common law nuisance.  I haven’t yet checked to see who’s the lucky deputy AG who got saddled with that wonderful argument.

More after the jump.

Proposition 65 Breaking News -- No Jury Trial Right

This just in:  California courts have repeatedly held that the California Constitution provides for the right to jury trial only in cases that were cognizable "at law" in 1850, when the state was admitted.  This extends to cases of the same "class" or "nature" as those existing in 1850.

We've long taken the position that this means no right to a jury trial in Proposition 65 matters.  And now, the First District Court of Appeal says we are right in DiPirro v. Bondo Corporation, A110913.

This is a fifty page decision with all kinds of other interesting stuff, almost all favorable for companies defending this litigation, and I'll try to blog more on it later today or tomorrow.

Update:  The link to the Bondo decision has been fixed.  Thanks to the reader who alerted me to the error.