Private Attorney General Doctrine Authorizes Attorney Fees in a Political Dispute

Posted on March 28, 2011 by David J. McMahon

In Wilson v. San Luis Obispo County Democratic Central Committee, 2011 DJDAR 2416 (2011), the California Court of Appeal for the Second District decided an interesting fee case arising from a political dispute.

The plaintiff in the Wilson case was an active member in the San Luis Obispo Democratic Committee. She was removed from her position after a negative vote of the other Committee members.

After being removed from office, she petitioned the Superior Court, seeking a writ of mandate ordering her reinstatement. The writ also sought to remove Committee members who allegedly were not properly elected to office. The trial court denied the petition, and the Committee moved for their attorney fees incurred pursuant to Code of Civil Procedure Section 1021.5. The fee request totaled $102,215. The trial court denied the fee petition in its entirety.

The Court of Appeal partially reversed the ruling of the lower court. The Court of Appeal cited to the provisions of Section 1021.5, noting that a litigant who acts as a “private attorney general” and who is successful in litigation, may recover the reasonable attorney fees incurred in enforcement of an important right affecting the public interest, or where the litigation has conferred a significant benefit on the general public. The court also noted that the award must be appropriate based on the necessity of private enforcement and other factors.

Here, the Court of Appeal concluded that the Committee vindicated an important constitutional right of political parties and the members of such parties to elect leaders. The court concluded that the Committee’s efforts incurred here did confer a significant benefit on persons belonging to political parties. The court remanded the matter back to the trial court, to determine the reasonable attorney fees incurred by the Committee.

Costs for Translation Services are Properly Awarded to the Prevailing Party

Posted on March 24, 2011 by David J. McMahon

In Taniguchi v. Kan Pacific Saipan Ltd., 2011 DJDAR 3574 (9th Cir. 2011), the Ninth Circuit Court of Appeal decided a prevailing party issue pertaining to translation services.

The plaintiff was injured when he fell through a wooden deck on the defendant’s premises. The plaintiff was a well known basketball star in Japan. He suffered serious potentially career‑ending injuries and incurred various medical expenses and had to cancel contractual obligations allegedly incurred, proximately related to his injuries.

The plaintiff sued the defendant for negligence. The district court granted Kan Pacific summary judgment and awarded costs, including the costs of translating contracts and other documents from Japanese to English pursuant to 28 U.S.C. Section 1920(6). Under that section, the district court has discretion to award fees for the compensation of interpreters as well as the cost of “special interpretation services.”

The Ninth Circuit affirmed the lower court’s decision, noting that under 28 U.S.C. Section 1920(6), the district court has discretion to award fees for compensation of interpreters. The Ninth Circuit noted that there was a split in authority between the Sixth and Seventh Circuits pertaining to the award of costs for “translation services” versus those incurred for an “interpreter.”

  • The Seventh Circuit in Extra Equipamentos E Exportacao Ltda. v. Case Corp., 541 F.3d 719, 727‑28 (7th Cir. 2008), held that “interpretation” and “translation” have distinct meanings, and thus has declined to award costs for translation services. 
  • The Sixth Circuit’s decision in BDT Products, Inc. v. Lexmark Int’l, Inc., 405 F.3d 415, 419 (6th Cir. 2005), concluded that “translation services” and “interpreting services” are interchangeable and allowed those items as costs.

The Ninth Circuit found the Sixth Circuit’s views to be more persuasive. The court also held that courts have the latitude to “interpret” Section 1920, and that the word “interpreter” can reasonably include a “translator.”

The Ninth Circuit concluded that the prevailing party must be awarded costs for interpreting live speech or written documents. Because it was necessary for Kan Pacific to have Taniguchi’s documents translated to prepare its defense, the award of costs was proper.

Fee Award is Overturned in Alleged Housing Discrimination Matter

Posted on March 23, 2011 by David J. McMahon

In Department of Fair Employment and Housing v. Mayr, 2011 DJDAR 2265 (2011), the California Court of Appeal for the Sixth Appellate District decided a unique attorney fee case in an alleged housing discrimination context. 

The case involved the interplay between California Code of Civil Procedure Section 1028.5 (a statute which authorizes an attorney fee award in cases arising between small businesses and state regulatory agencies) and Government Code Section 12989.2(a) which allows attorney fees in housing discrimination cases but not for or against a government agency.

In June 2006, the Mendoza plaintiffs filed a complaint against the owner of their apartment and the property manager for alleged housing discrimination. The Department of Fair Employment and Housing (DFEH) joined the litigation as a plaintiff. The plaintiffs alleged that the defendants had discriminated against them based on their national origin.

At the conclusion of testimony before the jury, the Judge granted a directed verdict in favor of the defendants. The court then ruled that attorney fees and costs were permissible under Code of Civil Procedure Section 1028.5. The court ordered DFEH to pay $19,200 in fees to the defendants and the plaintiffs appealed.

The Court of Appeal reversed the attorney fee award. The court ruled that under Government Code Section 12989.2, an award of attorney fees and litigation costs to or against the state is prohibited in a housing discrimination action.

The court did note that pursuant to Section 1028.5, that statute provides for a fee award, in an action between a small business and a state regulatory agency, which involves the agency’s regulatory functions. A fee award is appropriate if the agency brings an action without substantial justification. Here, the defendants argued that Section 12989.2 applies only if the case is for housing discrimination, the state is a party and fees are not available under a separate statute.

The Court of Appeal disagreed with the defendants’ arguments. The court held that Section 12989.2 applied, and costs and attorney fees were unavailable to the defendants against the state. The fee award was reversed.

 

Attorney Conflicts of Interest: Identifying and Resolving Ethical Pitfalls

Posted on March 22, 2011 by Barger & Wolen LLP

Strategies to Minimize the Risk of Ethics Violations and Malpractice Claims

Barger & Wolen partner David J. McMahon will be a faculty member for this Strafford Publications' CLE webinar which will provide attorneys with a framework to identify the most problematic and difficult-to-detect conflicts risks. The panel will outline best practices for attorneys to cope with conflicts that could potentially result in disqualification, discipline and malpractice.

Description

Conflicts of interest are one of the most common ethical dilemmas for attorneys. Whether the situation involves a personal conflict, a multi-client conflict, or a third-party conflict, practitioners must identity situations or transactions that pose potential conflicts of interest.

Conflict issues that arise when attorneys change firms are particularly relevant in the current environment. The ABA's Formal Opinion 09-455 addresses situations in which revealing a client’s identity and description of work performed may itself violate client confidence.

While many conflicts can be resolved with client consent, an effective waiver depends on the nature of the conflict, the timing of the waiver request, and whether the client is a current or former client. Conflicts can also be anticipated and addressed in engagement letters.

Listen as our authoritative panel of attorneys discusses how to identify potential conflicts issues and outlines best practices for avoiding or resolving those conflicts.

Outline

  1. Identifying sources for potential conflicts of interest
    1. Defining the client
    2. Defining the adversity that triggers conflict rules
    3. Adverse client conflict — direct adversity or adverse representation
    4. Joint representation — dual or concurrent representation
    5. Adversity to former clients
    6. Personal conflicts of interest
  2. Conflict resolution
    1. Withdrawal from representation
    2. Client consent
    3. Conflict waivers
    4. Engagement letters
    5. Law firm conflicts checks

Benefits

The panel will review these and other key questions:

  • What are some best practices for law firm conflict avoidance procedures?
  • Under what circumstances will a conflict prevent representation?
  • How can engagement letters effectively limit potential conflicts?
  • What critical language should be included in a conflicts waiver document?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.

Joining Mr. McMahon on the faculty are Brett A. Scher, Partner, Kaufman Dolowich Voluck & Gonzo, Woodbury, N.Y. and Thomas B. Mason, Partne, Zuckerman Spaeder, Washington, D.C.

Claim Must be Frivolous to Support a Fee Award for Malicious Prosecution

Posted on March 18, 2011 by David J. McMahon

In Fabbrini v. The City of Dunsmuir, 2011 DJDAR 2372 (9th Circuit 2011), the Ninth Circuit Court of Appeals decided an interesting fee issue arising in the context of a malicious prosecution claim and California’s anti‑SLAPP Statute, C.C.P. § 425.16.

The City of Dunsmuir (Dunsmuir) initiated legal proceedings against David Fabbrini (Fabbrini) for his failure to provide the proper promised collateral for a municipal loan. The lawsuit also contained a cause of action for declaratory relief, seeking a ruling on the respective parties’ rights and obligations as well as a claim for fraud. The City voluntarily dismissed the lawsuit.

After receiving notice of the dismissal, Fabbrini filed suit against the City in federal court, alleging malicious prosecution under 28 U.S.C. Section 1983. Fabbrini also included a claim for defamation. The district court granted the City’s motion to strike the defamation claim under California’s anti‑SLAPP statute. The court, however, rejected the motion as to the malicious prosecution count.

The district court awarded attorney fees to the City on the successful anti‑SLAPP motion, including fees for hours incurred on the malicious prosecution claim. The court ruled that the hours expended on the malicious prosecution count were “inextricably intertwined” with the anti‑SLAPP motion. The court thereafter granted summary judgment on the remaining claims, terminating the litigation in favor of the City.

The Ninth Circuit vacated the District Court’s ruling in part. The Ninth Circuit noted that a district court may award attorney fees to a prevailing Section 1983 defendant only where the action brought is found to be “unreasonable, frivolous, meritless or vexatious.” Here, the district court made no finding that the Section 1983 claim was frivolous or within the other required statutory criteria.

For these reasons, the court concluded that it was improper to award fees for hours incurred to dismiss the malicious prosecution claim. The City was only entitled to fees for work incurred on the anti‑SLAPP motion.

 

Upcoming Event: Crisis Management: A Primer on Crisis Response and Prevention

Posted on March 16, 2011 by Barger & Wolen LLP

Barger & Wolen partner David J. McMahon will lead a roundtable discussion on Crisis Management: A Primer on Crisis Response and Prevention at the 2011 Council on Litigation Management Annual Conference, (March 23-25 | New Orleans, LA).

Program Description:

A crisis is a severe, unexpected situation that threatens to harm a business, its shareholders or the general public.

The objectives of the roundtable are to provide a primer on crisis response and prevention through five hypothetical cases studies.

The case studies will illustrate how crisis management specialists, public relations professionals, legal counsel and other in-house professionals can be effective players in crisis response, prevention and planning.

Joining Mr. McMahon will be Rhonda Barnat, Abernathy MacGregor Group, Warren Perkins, Jr., Boh Bros. Construction Co. L.L.C. and Frank Vasek, Chartis Insurance.

About the Council on Litigation Management

The Council is the largest fully inclusive defense organization, comprised of thousands of
insurance companies, corporations, corporate counsel, risk managers, insurance professionals,
claims adjusters and attorneys. Through education and collaboration, its goals are to promote
and further the highest standards of litigation management in pursuit of client defense. The
Council sponsors educational programs, provides resources, fosters communication, and
recognizes lawyers who meet high standards. To learn more about the Council, please visit
www.litmgmt.org.