[UPDATED THROUGH MARCH 18, 2015]
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 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.
Does Inadvertent Disclosure Through a Public Records Request Waive Attorney-Client Privilege and Work Product Protections? What is the Consequence to the Attorney who Refuses to Return Them? After the Court of Appeal affirmed the trial court order, the Court granted review of the following issues: (1) Does inadvertent disclosure of attorney work product and privileged documents in response to a Public Records Act request waive those privileges and protections? (2) Should the attorney who received the documents be disqualified because she examined them and refused to return them? Ardon v. City of Los Angeles, S223876 (opinion below B252476, formerly 232 Cal.App.4th 175). Review was granted 3/11/15.
Can a Court Base Class Action Attorney Fees on a Common Fund Percentage? After the Court of Appeal affirmed a civil judgment, the 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.
Which Statute of Limitations Applies for Reimbursement Action for Unearned Attorney’s Fees? After the Court of Appeal reversed judgment for defendant on a demurrer, the Court granted review on the following issue: Does the one-year statute of limitations for actions against attorneys set forth in C.C.P. § 340.6 apply to a former client’s claim against an attorney for reimbursement of unearned attorney fees advanced in connection with a lawsuit? Lee v. Hanley, S220775 (opinion below G048501, as modified, formerly 227 Cal.App.4th 1295 and 228 Cal.App.4th 793a.) Review was granted 10/1/14.
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 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: The court ordered the issues to be briefed and argued limited 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?
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 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.
Can an Insurer Seek Reimbursement from Independent Counsel? After the Court of Appeal affirmed judgment, the Court granted review on following issue: After an insured has secured a judgment requiring an insurer to provide independent counsel to the insured (see San Diego Fed. Credit Union v. Cumis Ins. Society Inc. (1984) 162 Cal.App.3d 358), can the insurer seek reimbursement of defense fees and costs it considers unreasonable and unnecessary by pursuing a reimbursement action against independent counsel or can the insurer seek reimbursement only from its insured? Hartford Casualty Ins. Co. v. J.R. Marketing, L.L.C., S211645 (opinon below A133750, formerly 216 Cal.App.4th 1444). Review was granted 9/18/13.
Can a Homeowner Recover Attorney’s Fees Against an HOA When Its Governing Documents Are Found To Be Deficient? The Court limited review to the following issue: Is a prevailing homeowner entitled to attorney fees under Civil Code § 1354 in an action by a homeowners association to enforce its governing documents as those of a common interest development when the homeowner prevailed because it was later determined that the subdivision was not such a development and its governing documents had not been properly reenacted? Tract 19051 Homeowners Assn. v. Kemp, S211596 (B236015, nonpublished opinion). Review was granted 8/28/13. Update 12/11/14: Oral argument scheduled for 1/7/15. Update 1/7/15: Case called and continued. The briefs are here. Update 3/5/15: Opinion issued. A unanimous Supreme Court held that the Court of Appeal erred in reversing the attorney fee award in favor of the defendant homeowners.