The general rule is that each party in litigation bears his or her own attorney's fees. However, the court can award attorney's fees when the parties have entered a contract providing for such an award or when a statute provides for such an award. The court can also award attorney's fees against either a party or an attorney as sanctions under several different statutes. There are numerous complex issues that can arise when attorneys fees are part of the appeal, and Mr. Adelstein has handled several appeals involving such issues.
The trial court had awarded some attorney's fees under one statute, but refused to award additional attorney's fees under Labor Code, section 1194. Mr. Adelstein represented the appellant, and the Court of Appeal in Riverside reversed. It held that attorney's fees were recoverable under both statutes. The Court of Appeal reversed and remanded to the trial court to decide how much additional attorney's fees to award.
Case Data
Court of Appeal Opinion.
Court: California Court of Appeal, Fourth Appellate District, Division Two
(Riverside)
Case No. E036184
Author: Justice Barton C. Gaut
Opinion Date: December 13, 2005
Trial Counsel: Marc B. Levine, Levine and Associates
The trial court had awarded a former employee a modest wage-and-hour claim along with a $35,000 attorney's fee award. The employer appealed, and Mr. Adelstein represented the successful employee. The San Diego Superior Court, Appellate Division affirmed. The case is Mata v. Import Stone, Inc. (GIC 840979).
Case Data
Court of Appeal Opinion (single sentence affirmation).
Court: San Diego Superior Court, Appellate Division
Case No. GIC 840979
Opinion Date: June 15, 2007
Trial Counsel: Marc B. Levine, Levine and Associates
This was a family law action where the judgment ordered the wife to pay certain proceeds from the sale of a house to the husband. It also gave the husband a lien on the proceeds. The wife did not do so. Instead, she paid some of these proceeds to her lawyer. The husband filed a motion seeking an order to requiring the husband to pay him the proceeds and asking for sanctions under Code of Civil Procedure, section 128.5 (the statute that was in effect at the time). The trial court denied the motion. Mr. Adelstein represented the husband on appeal, and the Court of Appeal reversed. It ordered the lawyer to turn the proceeds (plus interest) over to the husband and remanded for a determination of sanctions.
Case Data
Court of Appeal Opinion.
Court: California Court of Appeal, Second Appellate District, Division Three
(Los Angeles)
Case No. B143723
Author: Presiding Justice Joan Dempsey Klein
Opinion Date: August 29, 2001
Trial Counsel: Dan Germain (Rosman &
Germain) and me, believe it or not. (I had successfully represented the client
in an earlier appeal in the same case)
An earlier case settled. The plaintiffs were later dissatisfied with the settlement and thought that the defendants' lawyers had made false statements during settlement negotiations. The plaintiffs sued the defendants and their lawyers for fraud. The trial court granted an anti-SLAPP motion (under Code of Civil Procedure, section 425.16), struck the complaint, dismissed the case, and awarded attorney's fees. The plaintiffs appealed. Mr. Adelstein represented the lawyers on appeal, and the Court of Appeal upheld the trial court's dismissal and attorney's fee order. On remand, the lawyers obtained their appellate attorney's fees under the anti-SLAPP statutes.
Case Data
Court: California Court of Appeal, Second Appellate
District, Division Three (Los Angeles)
On appeal, Mr. Adelstein represented a former substitute teacher who was peacefully picketing in front of a LAUSD middle school. His sign and leaflets stated that the school promoted racism, sexism, and low student performance, and he specifically named the assistant principal. The assistant principal was upset with this. First, he and LAUSD sued the former teacher on the theory that the teacher's picketing was promoting workplace violence, and sought an injunction under Code of Civil Procedure, section 527.8. The trial court noted that the teacher was not encouraging violence and in any case his picketing was protected by the First Amendment.
Undeterred, the assistant principal then sued under Code of Civil Procedure, section 527.6, arguing that the teacher's picketing was a form of harassment. The case was assigned to a different judge who concluded that the picketing was harassment, rejected the teacher's res judicata and collateral estoppel defenses, rejected the First Amendment defense, and entered the injunction.
The appeal had a convoluted history. Mr. Adelstein's brief argued that the injunction should be reversed under res judicata, collateral estoppel, and the First Amendment, among other things. He also requested attorney's fees under Code of Civil Procedure, section 527.6, subdivision (i). LAUSD represented the assistant principal and argued to the contrary.
The Court of Appeal initially issued a published opinion affirming most of the injunction but remanding for a relatively minor correction. Mr. Adelstein filed a petition for rehearing, arguing that this opinion had incorrectly analyzed both the collateral estoppel and First Amendment issues. The Court of Appeal then asked for two sets of supplemental letter briefs, granted rehearing, and issued a second opinion reversing the trial court's injunction in full. The Court of Appeal also awarded attorney's fees under Code of Civil Procedure, section 527.6, subdivision (i).
Case Comment
I need to commend the justices in this case for granting rehearing. Petitions for rehearing are rarely granted, especially if a case has been designated for publication. But the Court of Appeal's analysis in its initial opinion, especially of the First Amendment, was simply incorrect. Many justices would be tempted to simply deny the rehearing petition and be done with the case. But the court here not only granted rehearing, but spent a considerable amount of time ordering and considering two sets of supplemental letter briefs. The justices not only worked hard to get the right result, but changed their mind in the process, and this should not pass without note.
Case Data
Initial Court of Appeal Opinion.
Revised Court of Appeal Opinion.
Court: California Court of Appeal, Second Appellate District, Division Five
(Los Angeles)
Case No. B169593
Authors: Justice Richard Mosk; Presiding Justice Paul Turner
Opinion Date: February 16, 2005; April 27, 2005
Trial Counsel: The client was in pro per.