[UPDATED THROUGH JUNE 9, 2016]
Can a Sophisticated and Represented Party Give Informed Consent to a Future Conflict, and Does a Harmless Conflict Bar Collection of Fees ? After the Court of Appeal reversed the judgment which confirmed an arbitration award upholding the engagement agreement and finding that counsel was entitled to all of its fees, the Supreme Court granted review on the following issues: (1) May a court rely on non-legislative expressions of public policy (i.e., California Rules of Professional Conduct, Rule 3-310), to overturn an arbitration award on illegality grounds? (2) Can a sophisticated consumer of legal services, represented by counsel, give its informed consent to an advance waiver of conflicts of interest? (3) Does a conflict of interest that undisputedly caused no damage to the client and did not affect the value or quality of an attorney’s work automatically (i) require the attorney to disgorge all previously paid fees, and (ii) preclude the attorney from recovering the reasonable value of the unpaid work? Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., Inc., S232946 (opinion below B256314 (as modified), 244 Cal.App.4th 590, mod. 245 Cal.App.4th 63b). Review was granted 4/27/16.
Does the Interim Adverse Judgment Rule Apply to Bar Malicious Prosecution after an Ultimate Finding of Bad Faith? After the Court of Appeal affirmed an order granting a special motion to strike, the Supreme Court granted review of the following issues: (1) Does the denial of former employees’ motion for summary judgment in an action for misappropriation of trade secrets conclusively establish that their former employer had probable cause to bring the action and thus preclude the employees’ subsequent action for malicious prosecution, even if the trial court in the prior action later found that it had been brought in bad faith? (2) Is the former employees’ malicious prosecution action against the employer’s former attorneys barred by the one-year statute of limitations in Code of Civil Procedure section 304.6? Parrish v. Latham & Watkins, S228277, (opinion below B244841, and after rehearing, formerly 238 Cal.App.4th 81). Review was granted 10/14/95.
Are Redacted Attorney Invoices Still Privileged? After the Court of Appeal granted a petition for peremptory writ of mandate, the Supreme Court granted review on the following issue: Are invoices for legal services sent to the County of Los Angeles by outside counsel within the scope of the attorney-client privilege and exempt from disclosure under the California Public Records Act, even with all references to attorney opinions, advice and similar information redacted? Los Angeles County Bd. of Supervisors v. Superior Court, S226645, (opinion below B257230, formerly 235 Cal.App.4th 1154). Review was granted 7/8/15. Update 3/23/16: Review granted in Marina Coast Water Dist. v. Public Utilities Com., S230728 (original proceeding). Briefing deferred pending resolution of Los Angeles County Bd. of Supervisors.
Does Raising an Affirmative Defense Trigger the Attorney Fees Provision of Contract or Civil Code § 1717? After the Court of Appeal reversed an order denying attorney fees the Supreme Court granted review on the following issues: (1) Does the assertion of an agreement as an affirmative defense implicate the attorney fee provision in that agreement? (2) Does the term “action” or “proceeding” in Civil Code section 1717 and in attorney fee provisions encompass the assertion of an affirmative defense? Mountain Air Enterprises, LLC v. Sundowner Towers, LLC, S223536 (opinion below A138306, formerly 231 Cal.App.4th 805). Review was granted on 3/18/15.
Can a Court Base Class Action Attorney Fees on a Common Fund Percentage? After the Court of Appeal affirmed a civil judgment, the Supreme Court granted review on the following issue: Does Serrano v. Priest (1977) 20 Cal.3d 25 permit a trial court to anchor its calculation of a reasonable attorney’s fees award in a class action on a percentage of the common fund recovered? Lafitte v. Robert Half Internat., Inc., S222996 (opinion below B249253, formerly 231 Cal.App.4th 860). Review was granted 2/25/15. Update 5/4/16: Oral argument scheduled for 5/27/16. The briefs are here. Update 5/27/16: Case argued and submitted
When Are Brandt Attorney Fees Considered Part of the Judgment?
After the Court of Appeal modified and affirmed the judgment in a civil action, the Supreme Court granted review on the following issue: Is an award of attorney fees under Brandt v. Superior Court (1985) 37 Cal.3d 813 properly included as compensatory damages for purposes of calculating the ratio between punitive and compensatory damages where the fees are awarded by the jury, but excluded from compensatory damages when they are awarded by the trial court after the jury has rendered its verdict? Nickerson v. Stonebridge Life Ins. Co., S213873 (opinion below B234271, formerly 219 Cal.App.4th 188). Review granted on 12/11/13. Update 1/15/14: The Court limited briefing to the following issue: Is an award of attorney fees under Brandt v. Superior Court (1985) 37 Cal.3d 813 properly included as compensatory damages where the fees are awarded by the jury, but excluded from compensatory damages when they are awarded by the trial court after the jury has rendered its verdict? Update 3/2/16: Oral argument scheduled for 4/7/16. The briefs are here. Update 4/7/16: Case argued and submitted. Update 6/9/16: Opinion filed. A unanimous Court reversed the Court of Appeal on this issue. The Court concluded that, in determining whether a punitive damages award is unconstitutionally excessive, Brandt fees may be included in the calculation of the ratio of punitive to compensatory damages, regardless of whether the fees are awarded by the trier of fact as part of its verdict or are determined by the trial court after the verdict has been rendered.
Can the Court Award Attorney Fees After Striking the Complaint for Lack of Jurisdiction? After the Court of Appeal reversed an order awarding attorney fees in a civil action, the Supreme Court granted review on the following issue: If the trial court grants a special motion to strike under CCP § 425.16 on the ground that the plaintiff has no probability of prevailing on the merits because the court lacks subject matter jurisdiction over the underlying dispute, does the court have the authority to award the prevailing party the attorney fees mandated by § 425.16(c)? Barry v. State Bar of California, S214058 (opinion below B242054, formerly 218 Cal.App.4th 1435). Review granted on 11/27/13.