Attorneys' Fees

Attorneys' Fees

Prevailing on a Contract Affirmative Defense Gives Rise to Civ. Code § 1717 Fees

Last updated on September 10, 2024 by Tim Kowal

It’s very clear that you are entitled to contractual attorneys’ fees for prevailing on a contract claim. But what about prevailing on a contract affirmative defense? There was some unfortunate confusion on that point in the California Supreme Court’s decision in Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 751, where...Read More >>

Costs-of-proof fees reversed because they went beyond proving the request for admission

Last updated on November 30, 2023 by Tim Kowal

I tell anyone who will listen: if you have a case in California court, make sure you are aware that attorneys' fees are available for proving the matters in requests for admission. So if you deny a request for admission and you lose on that issue at trial, you are liable for fees under Code...Read More >>

The 9th Cir. “Reimagines” Diversity Jurisdiction

Last updated on October 10, 2023 by Tim Kowal

The one sure thing your law-school loans purchased is instant recall of the fact that “federal courts are courts of limited jurisdiction.” But not as limited today as when you signed your promissory note. We discuss Impossible Foods Inc. v. Impossible X LLC, the recent 9th Circuit decision holding that specific jurisdiction over a defendant...Read More >>

Uncivil attorneys get a 40% fee haircut

Last updated on October 9, 2023 by Tim Kowal

After a former employee won a claim against the employer in Snoeck v. ExakTime Innovations, Inc., (D2d3 Oct. 2, 2023) No. B321566 (nonpub. opn.), the court granted the motion for attorneys’ fees. The court agreed that the value of counsel’s efforts would have been over $1.1 million. Would have been. But then the court applied...Read More >>

CEB has my article, What Happens to a Fee Award After the Judgment Is Reversed? Try a Stipulated Reversal

Last updated on April 27, 2023 by Tim Kowal

CEB has published my article, “What Happens to a Fee Award After the Judgment Is Reversed? Try a Stipulated Reversal.” In the short article, I discuss a common confusing scenario: what happens when a judgment is reversed, but the fee award is still on appeal? That is what happened in Mid-Wilshire Property, L.P. v. Dr. Leevil,...Read More >>

What You Need to Know about Fee-and-Costs Awards on Appeal

Last updated on February 14, 2023 by Tim Kowal

The issue that most often drags appeals back into more litigation is attorney fee and costs. What happens when, while focusing on the appeal, the prevailing party gets a substantial award of fees and costs? Do you have to separately appeal from the fees and costs award? (Yes…usually.) How can you stay enforcement of the...Read More >>

“Being Inauthentic Is a Betrayal of People’s Expectations”: Kyle Schneberg on Nursing Home Injury Law

Last updated on November 29, 2022 by Tim Kowal

After amassing $100 million for his personal-injury clients, Gerry Spence Trial Lawyer’s College alumnus Kyle Schneberg started Bedsore Law, a national law firm protecting the rights of elders in nursing homes. Kyle sits down with California Appellate Law Podcast co-hosts Jeff Lewis and Tim Kowal to discuss: The different approaches taken by personal injury attorneys,...Read More >>

Settlement Offer Under Section 998 Automatically Expires If Judge Grants Summary Judgment

Last updated on November 28, 2022 by Tim Kowal

CEB has published my article, “Settlement Offer Under Section 998 Automatically Expires If Judge Grants Summary Judgment,” originally published here. The article may be cited as Tim Kowal, “Settlement Offer Under Section 998 Automatically Expires If Judge Grants Summary Judgment,” CEB (Nov. 15, 2022), available at http://bit.ly/3ATYO9Q A PDF of the article is here: Kowal_Section998.pdf...Read More >>

Something You Didn't Know About 998 Offers

Last updated on November 11, 2022 by Tim Kowal

“CEB has published” Tim Kowal, “Something You Didn't Know About 998 Offers,” CEB (Apr. 30, 2021), available at http://bit.ly/3AbqAhI Plaintiff can still recover post-offer fees even if Plaintiff does not beat the 998 offer, according to Regueiro v. FCA US, LLC (2d Dist., Div. 1 Nov. 19, 2020) Case No. B301772 (unpublished). My original blog...Read More >>

Settlement Offer Under § 998 Automatically Expires If Judge Grants Summary Judgment

Last updated on November 2, 2022 by Tim Kowal

There are several odd things about Trujillo v. City of Los Angeles (D2d1 Oct. 27, 2022 No. B314042) -- Cal.Rptr.3d -- (2022 WL 15119812), a case about accepting a Code of Civil Procedure section 998 offer of compromise. The court held the acceptance was not valid because, even though it was within the statutory 30...Read More >>

What Happens to a Fee Award After the Judgment Is Reversed? Try a Stipulated Reversal

Last updated on July 27, 2022 by Tim Kowal

Here is a common scenario, with a rather uncommon resolution. You have appealed a judgment, and you have separately appealed the attorney fee award. You reversed the judgment. After reporting the victory to the client, you suddenly remember: what about the fee award? That is what happened in Mid-Wilshire Property, L.P. v. Dr. Leevil, LLC...Read More >>

Amendments to Judgment During Appeal Reversed for Violating Appellate Stay

Last updated on June 23, 2022 by Tim Kowal

The unusual thing about Kling v. Horn (D2d7 Jun. 8, 2022 no. B310164) 2022 WL 2062642 (nonpub. opn.) is that the party who won the judgment was the one raising a problem about it. Following an arbitration over an attorney fee dispute, the trial court entered a judgment of about $120,000 to the attorney. But...Read More >>

Greedy fee motions may be denied in their entirety

Last updated on May 27, 2022 by Tim Kowal

Even when a prevailing party is entitled to recover attorney fees, the court may deny fees in extraordinary circumstances. The authors of the California Attorneys Fees Blog, William (Mike) Hensley and Marc Alexander, talk about a few of the cases where excessive and unreasonable fee requests have been denied in their entirety. Also, do not call the trial...Read More >>

Creators of the CalAttorneysFees.com Blog, Michael Hensley and Marc Alexander, Discuss Tips for Requesting and Opposing Attorney Fees

Last updated on April 12, 2022 by Tim Kowal

The authors of the famous CalAttorneysFees.com blog, Marc Alexander and Michael Hensley, visit the California Appellate Law Podcast to discuss tips, traps, and best practices on attorney fee motions. We discuss why California’s attorney fees statutes can be so complicated, why reasonable fees sometimes get cut, and why unreasonable fees sometimes don’t. Some key takeaways:...Read More >>

Judge Applied Wrong Legal Standard, Leading to Reversal of $680,000 Fee Award

Last updated on February 1, 2022 by Tim Kowal

In “lemon law” cases under the Song-Beverly Act, the “prevailing party” is entitled to attorney fees. But what is a “prevailing party”? Is a plaintiff who recovered $1 in nominal damages a prevailing party entitled to attorney fees (and over $680,000 in fees at that)? In a published opinion, the Court of Appeal in Duff...Read More >>

Selecting Issues for Appeal? Look for Misapplication of the Legal Standard, Like in This Attorney Fee Case

Last updated on May 13, 2021 by Tim Kowal

One of the most effective pieces in winning an appeal is issue selection. Most attorneys know, for example, that "de novo" issues are best on appeal: the Court of Appeal will not pay any deference to a trial court on issues of law. And most attorneys also know that "abuse of discretion" issues are lousy...Read More >>

Split of Authority on Appealability of Post-Reversal Fee Orders

Last updated on January 27, 2021 by Tim Kowal

If you find yourself back in the trial court after a remand by the Court of Appeal, things are supposed to be much the same as before. Yet sometimes, things are not the same. This case provides one example: after a perfectly routine order granting attorney fees, defendant appeals the fee order, which is, likewise, perfectly...Read More >>

Missed the Deadline to Seek Attorney Fees? Post-Judgment Fees Are Still Available

Last updated on January 6, 2021 by Tim Kowal

Failing to timely seek fees after judgment does not forfeit the right to seek postjudgment fees, holds the Second District, Division Six in Vincent v. Sonkey (D2d6 Dec. 29, 2020) No. B293251. After obtaining a default judgment of $123,000 on a lease agreement, plaintiff failed to file a motion for attorney fees. Defendant then moved to set...Read More >>

Trial Court Abused Discretion by Awarding Contractual Fees to Defendant Who Lost on the Only Contract Claim

Last updated on December 29, 2020 by Tim Kowal

In this commercial lease dispute, the trial court abused its discretion in not one, not two, but three different ways when it awarded contractual fees to the losing defendant. In Waterwood Enterprises, LLC v. City of Long Beach (D2d1 Dec. 18, 2020) No. B296830, landlord claimed the city was liable for substantial repairs to a property that...Read More >>

No PAGA Fees for Proving University Acted with No Substantial Evidence

Last updated on December 16, 2020 by Tim Kowal

In Doe v. Regents of the University of California (1st Dist., Div. 4 Nov. 30, 2020) No. A158704 (unpublished), a third-year med student at UCSD examined a 12-year-old girl brought in by her mother for a potential eating disorder, but conducted the examination of the girl's breasts and genitals without a chaperone, in violation of University policy. After a...Read More >>

Something You Didn't Know About CCP § 998 Offers

Last updated on December 10, 2020 by Tim Kowal

It is something I did not know, anyway: Plaintiff can still recover post-offer fees even if Plaintiff does not beat the 998 offer. In Regueiro v. FCA US, LLC (2d Dist., Div. 1 Nov. 19, 2020) Case No. B301772 (unpublished) (https://www.courts.ca.gov/opinions/nonpub/B301772.PDF), Plaintiffs sued on the Song-Beverly Act (lemon law). Defendant made a CCP 998 offer. Three of them,...Read More >>

Attorney Fees Recoverable Even for Unsuccessful Judgment Enforcement Efforts

Last updated on December 2, 2020 by Tim Kowal

So holds the Fourth District, Third Division Court of Appeal in Buechler v. Butker, Case No. G058054 (4th Dist. Div. 3 November 23, 2020) (unpublished), where plaintiff sought contempt against defendant for failing to comply with an agreement to remove defendant's sewer system from a sewer line. The agreement was reduced to judgment that also awarded...Read More >>

Brush Up on Your 998 Offers

Last updated on October 12, 2020 by Tim Kowal

Brush Up on Your 998 Offers

Last updated on October 5, 2020 by Tim Kowal

Should you include attorney fees in your 998 offer? Or stay silent on them? That question came up this week, and this recent case suggests it is probably coming up for a lot for many of attorneys -- particularly those of us who did not find the choice between law school and accountancy school a...Read More >>

CHECKMATING A CHECKERS OPPONENT WITH CCP § 998 OFFERS

Last updated on April 24, 2020 by Tim Kowal

If you've been involved in litigation, you likely are aware of the "CCP 998 offer." CCP § 998 is a statutory carrot-and-stick to entice parties to make reasonable offers, and to threaten penalties for rejecting reasonable offers. A 998 offer may be made any time up to 10 days before trial or arbitration. The objective...Read More >>

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

— Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"A judge is a law student who grades his own papers."

— H.L. Mencken

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

— Rubin v. Green (1993) 4 Cal.4th 1187

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

— Leviticus

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

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"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)

"A judge is a law student who grades his own papers." — H.L. Mencken

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia