Case Number: SC101482 Hearing Date: April 09, 2014 Dept: O

SC101482
HUMPHRIES v. GINGERBREAD COURT LP ET AL

Defendant’s Motion for Fees on Appeal is GRANTED. The Court of Appeal awarded Defendant its costs on appeal. Defendant cites an applicable statute providing for recovery of fees, CC §55. The trial court previously found that Plaintiff’s complaint did not expressly cite CC §55 but it substantively requested the relief thereunder. For this reason, Defendant is entitled to recover fees under CC §55 as prevailing party. However, Thomas Pinnock is the only party to this action and therefore the only appropriate person against whom the fees may be awarded.

ANALYSIS: Defendant prevailed and the Court of Appeals awarded Defendant costs on appeal. Defendant seeks fees under Unruh Civil Rights Act, which provides for recovery of fees to the prevailing party under CC §55. Defendant asks that the attorney’s fees award be imposed against Pinnock and his law firm, Pinnock & Wakefield.

Plaintiff opposes the motion on several grounds. First, Plaintiff argues there is no basis to impose the fee award against Plaintiff’s counsel. Plaintiff argues the fee award can only be against Pinnock. Second, Plaintiff argues she did not allege CC §55 in the complaint and the only basis for fees cited in the motion is CC §55. Third, Plaintiff claims the only statutes sued upon (CC §§54 and 54.1 and federal statues) do not allow a prevailing defendant to recover fees, as they contain one-way fee shifting statutes in Plaintiff’s favor.

An appellate court award of costs does not automatically include attorney’s fees nor does it preclude a party from seeking them, unless otherwise provided. See CRC 8.278(d)(2); see also Eisenberg, et al., California Practice Guide: Civil Appeals and Writs (Rutter Group 2011), ¶14:112. Thus, as in trial court litigation, attorney fees on appeal are recoverable if authorized by contract, statute or “law.” See CCP § 1033.5(a)(10)(A), (B),(C)); see Security Pac. Nat’l Bank v. Adamo (1983) 142 Cal.App.3d 492, 498.

Plaintiff’s arguments were already addressed extensively by Judge Sarmiento’s prior ruling. Judge Sarmiento’s 2/23/12 fee award in Defendant’s favor was specifically based on CC §55, which states “Any person who is aggrieved or potentially aggrieved by a violation of Section 54 or 54.1 of this code…may bring an action to enjoin the violation. The prevailing party in the action shall be entitled to recover reasonable attorney’s fees.”

If this Court were to deny Defendant’s instant motion for fees grounds that CC §55 was not triggered by Plaintiff’s complaint, the order would be inconsistent with Judge Sarmiento’s 2/23/12 order. Substantively, the reasoning of the prior order applies equally here. The complaint alleges violations of CC §§54 and 54.1 and although it does not explicitly ask for injunctive relief under CC §55, Judge Sarmiento noted that the requested relief–removal of the barriers–would require the court to issue an injunction. CC §55 applies and a fee award may be imposed thereunder. As discussed in Molski v. Arciero Wine Group (2008) 164 Cal.app.4th 786, 791-792, while CC §§54 an 54.1 only permit recovery of fees by a prevailing plaintiff, CC §55 allows recovery of fees by the prevailing party, regardless of whether that party is plaintiff or defendant.

Finally, Plaintiff persuasively argued against Defendant’s attempt to impose fees against both remaining Plaintiff Pinnock and Pinnock’s ostensible counsel. Judge Sarmiento addressed this in his 2/23/12 order, stating that Defendant offered no authority to impose a cost award against counsel. In this motion, Defendant cites to litigation concerning Prop 65, in which counsel was found to be the real party in interest. However, Thomas Pinnock was already deemed the real party in interest who used Barbara Donahue as a straw plaintiff. The Law Offices of David Wakefield is only counsel of record and Thomas Pinnock is clearly not a straw plaintiff. Almost the entirety of this action was spent determining that Barbara Donahue was a straw plaintiff and the real party in interest is Thomas Pinnock. The fee award is not a sanction and is a cost award imposed against the losing party on appeal–Thomas Pinnock.

The trial court has broad discretion to determine what constitutes a reasonable fee. See PLCM Group, Inc., (2000) 22 Cal.4th 1084, 1095. “The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.” Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623-624. If the Court reduces the requested attorney fees as unreasonable, it is not obligated to justify its decision by identifying specific time entries with which it finds fault. Id. at 625. To require otherwise would be inconsistent with the general rule that the trial court is entitled to take all circumstances into account when determining the reasonableness of attorney fees. Id. The trial court is therefore not bound by an attorney’s evidence in support of his fees. See Vella v. Hudgins (1984) 151 Cal.App.3d 515, 524.

Fee setting ordinarily begins with the “lodestar,” a touchstone figure based on the number of hours reasonably expended multiplied by the reasonable hourly rate. PLCM Group, Inc., supra, 22 Cal.4th at 1095 (lodestar “presumably reasonable” method for calculating fees). Under this approach, a base amount is calculated from a compilation of time reasonably spent and reasonable hourly compensation of each attorney. The base amount is then adjusted in light of various factors. Serrano v. Priest (‘Serrano III’) (1977) 20 Cal.3d 25, 48. The lodestar method vests the court with discretion to decide which of the hours expended by the attorneys were reasonably spent on the litigation. See Hammond v. Agran (2002) 99 Cal.App.4th 115, 133. An award of fees may include not only the fees incurred with respect to the underlying claim but also fees incurred to establish and defend a fee claim. Serrano v. Priest (‘Serrano IV ‘) (1982) 32 Cal.3d 621, 639.

Defendant moves for recovery of attorney’s fees incurred on appeal in the amount of $33,236.77. By seeking a declaration that Pinnock was a vexatious litigant and asking that a straw plaintiff be ignored, Defendant brooked novel legal issues that were complex. The application of the vexatious litigant statute in this situation was not straightforward. The appeal itself required nearly two years to complete. In light of these facts, the Court awards the full amount requested, $33,236.77 in fees to Defendant.