California Attorney Fee Orders: When to Appeal, Defend or Settle

• Jurisdiction: California,United States
• Author: By Audra Ibarra
• Citation: Vol. 27 No. 2
• Publication year: 2014

California Attorney Fee Orders: When to Appeal, Defend or Settle

By Audra Ibarra

This article focusing on California attorney fee appeals is a companion piece to an article on Ninth Circuit attorney fee appeals, Ninth Circuit Attorney Fee Awards & De Novo Review, published in 26:1 California Litigation 35 (2013).

You've got to know when to hold 'em, know when to fold 'em, know when to walk away and know when to run," Kenny Rogers sang in "The Gambler." Of course, an attorney fee appeal is not gambling per se, but it is high-stakes. To maximize reward and minimize risk, you need to know when to appeal, defend, or settle. The answer, of course, depends largely on your chances of reversal. There is statistically an 18% chance of reversal, but your specific chances depend on many factors, including the facts, law, and standard of review. (Judicial Council of California, 2013 Court Statistics Report, Courts of Appeal, Figure 25.) While relevant facts and applicable law are case-specific, it is helpful to know which standard of review increases the chances of reversal and which issues have been reversed under that standard.

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In general, chances of reversal increase if an issue is reviewed de novo (and not for abuse of discretion or substantial evidence). The de novo or independent standard applies to issues of law. Under this standard, appellate courts give no deference to a trial court's ruling. (Ghirardo v. Antonioli (1994) 8 Cal. 4th 791, 799.) Since 2000, appellate courts have reversed attorney fee orders in published opinions on de novo review of issues in six main categories: (1) jurisdiction; (2) entitlement based on undisputed facts; (3) statutory criteria; (4) application of the private attorney general statute to a published appellate opinion; (5) effect of an attorney fee clause on a third party; and (6) sufficiency of third-party interest to support intervention.

Jurisdiction

Did the trial court have jurisdiction to hear a fees motion? Jurisdiction is a classic issue for de novo review and has been the ground for a reversal. In Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 609, environmental groups challenged the county's approval of a development project. The trial court granted relief on only one of three issues raised by the groups, and both sides appealed. The environmental groups moved for attorney fees under the private attorney general statute, and the trial court granted the motion but awarded a reduced amount of fees due to the groups' limited success. (Code Civ. Proc., § 1021.5.) Both sides appealed the fees order. After the court of appeal denied the parties' stipulation to stay the fees appeal pending resolution of the merits appeal, the parties stipulated to dismiss their fees appeals. When the court of appeal affirmed and modified the judgment on the merits in favor of the environmental groups, they moved for appellate fees and supplemental trial fees in at least the amount by which the award had previously been reduced. The trial court awarded appellate fees, but...